The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be granted a Certificate of Need to construct a 120-bed nursing home in Volusia County, Florida. Petitioner contends that there is a need for such a facility; that the Department's rule do not apply in determining need; and that to the extent the Department's rules do apply, they are not a reasonable measure of the need for a nursing home facility. The Department contends that its rules are reasonable and applicable to this proceeding, and that there is no need for the proposed facility.
Findings Of Fact Petitioner is seeking a Certificate of Need authorizing the construction of a 120-bed nursing home facility in Daytona Beach, Volusia County, Florida. At the time that the Application for Certificate of Need was filed, the total project cost was estimated at $3,688,523. Cost estimates have been revised since that time, and at the time of the hearing, it was estimated that the total capital expenditure required would be $5.3 million. Petitioner proposes to provide intermediate and skilled care facilities and to secure Medicare and Medicaid approval. Petitioner has built and operated numerous nursing home facilities in states other than Florida. Petitioner has the necessary resources, competence and experience to build and operate the proposed nursing home facility. Prior to the adoption of Rule 1( -5.11(21), Florida Administrative Code, the Department utilized health services plans adopted by local health services agencies to determine the need for nursing home facilities. There was no evidence offered at the hearing from which it could be concluded that there is a need for the proposed facility under any such plan. In determining the need and demand for nursing home facilities, the Department now utilizes a formula set out in its Rule 10-5.11(,21), Florida Administrative Code. Under the rule, the Department will not normally approve applications for additional nursing home beds in any service district unless a need for the beds is demonstrated by application of a formula set out in the rule. Under the formula, a ratio of 27 nursing home beds per 1,000 persons age 65 or older in the population is utilized. This formula historically allows for construction of nursing home beds which exceeds need. Persons who live in poverty have a historic need for nursing home services that exceeds that for the remainder of the population. The Department's formula thus applies a poverty ratio to the 27 beds per 1,000 formula. The percentage of poverty in Volusia County exceeds the state average. The bed need ratio for Volusia County under the Department's rule is therefore 32.6 beds per 1,000 of aged population. Under its rule, the Department utilizes the most recent mid-range population projections published by the Bureau of Economic and Business Research at the University of Florida to determine the population of the service district. In Volusia County, the population age 65 and above was estimated by that bureau for 1986 to be 69,157. Applying the 32.6 beds per 1,000 ratio, the theoretical bed need for Volusia County for 1986 is 2,225 beds. Only 1,988 beds have actually been licensed or approved for Certificates of Need, however. Under this circumstance, the Department, utilizing its rule would then consider whether there is an "actual demand" for nursing home beds. Under the rule, new beds are authorized beyond those currently licensed so that the current daily occupancy would equal 80 percent of the authorized beds. Accordingly, there could be as many as 1,960 beds eligible for licensure in Volusia County 1,568 (current daily occupancy assuming 100 percent occupancy of currently licensed beds) divided by 0.803. In addition to the 1,568 currently licensed beds, the Department has issued Certificates of Need for 420 additional beds that are not yet on line. There have thus been 1,988 beds licensed or approved for licensure more than 1,960, which is the most that could possibly be approved. There is, therefore, no actual demand for new beds under the Department's rule. The rule does not operate to foreclose placing new beds in an area where theoretical demand exceeds the number of licensed beds. Instead, the rule, which is applied to new projections quarterly, serves to bring new beds into an area gradually. The Department's Rule 10-5.11(21), Florida Administrative Code, is a reasonable method of determining theoretical need and actual demand for nursing home beds. There are other reasonable methodologies that could be followed. The Department's methodology is not, however, unreasonable, arbitrary, or capricious. Even if application of the formula does not demonstrate any need or demand for nursing home services, the Department can grant a Certificate of Need if other circumstances exist that would justify the addition of new nursing home beds. The applicant has failed to establish that any such conditions exist in Volusia County. It has not been established that persons who live in poverty, Medicaid or Medicare patients, or any segment of the population are unable to obtain nursing home services. It has not been established that existing facilities are providing inferior services. The Department's Rule 10-5.11(21), Florida Administrative Code, allows for the construction of more nursing home beds in districts with a high degree of poverty than would be allowed in districts where there is a lesser degree of poverty. This factor has been placed in the formula because it has been established that persons who live in poverty have a greater need for nursing home facilities than do other segments of the population. The formula does not operate to discriminate against persons who do not live in poverty. Rather, it serves to allow the placement of facilities where they are needed.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact. By application dated April 15, 1983, Beverly Enterprises-Florida, Inc., (hereinafter "Beverly" or "Petitioner") applied to the Department of Health and Rehabilitative Services for the issuance of a certificate of need for the construction of a new 120-bed nursing home in Marco Island, Collier County, Florida. The application was deemed by HRS to be complete effective September 15, 1983. (Pet. Ex. 1) By letter dated December 5, 1983, HRS advised Beverly that its application was denied. (Pet. Ex. 2) The letter included the following reasons for denial: The proposed project is not consistent with Chapter 10-5.11(21), Florida Administrative Code, nursing home bed need methodology. With a six month occupancy of 58.2 percent in the subdistrict of Collier County, the utilization threshold of 90 percent developed from the application of Chapter 10-5.11(e), (f), and (h), Florida Administrative Code, is not satisfied and no further bed need is demonstrated for this subdistrict. There are 97 approved but unlicensed beds in the subdistrict which, when added to the existing licensed bed supply, should effectively maintain the county-wide occupancy at a reasonable level through 1986. Further explication was contained in the State Agency Action Report which accompanied the HRS letter of December 5, 1983. Florida Administrative Code Rule 10-5.11(21)(a), adopted by HRS, reads as follows: Departmental Goal. The Department will consider applications for community nursing home beds in context with the applicable statutory and rule criteria. The Department will not normally approve applications for new or additional community nursing home beds in any departmental service district if approval of an application would cause the number of community nursing home beds in that departmental service district to exceed the number of community nursing home beds calculated by the methodology described in subsections (21)(b), (c), (a), (f), (g), and (h) of this rule. (Pet. Ex. 3) A step-by-step application of the methodology described in Rule 10- 5.11(21)(b) through (h) to the facts in this case is as follows. Under the formula, bed need is determined by first looking at the poverty level in District VIII and in Collier County (Pet. Ex. 5, Tr.252). The poverty level is computed by comparing the number of elderly living in poverty in the district, which is 8.61, to the number of elderly living in poverty in the State, which is 12.70, resulting in a poverty ratio of .68 (Tr.252). The bed need ratio is computed by multiplying the poverty ratio of .68 times 27 beds per thousand population 65 or older, which results in a bed need ratio of 18.3 beds per thousand residents 65 years or older (Tr.252). When the bed need ratio is applied to the 65 and over population in District VIII, the total bed need is 3,858. The bed need for the subdistrict of Collier County is 514 beds (Tr.252). The number of licensed and approved beds in the district is 4,618 and the number of licensed and approved beds in the subdistrict is 429 (Tr.252). When the need for beds is subtracted from the total number of licensed and approved beds, there is a surplus of 760 beds in District VIII, but a need for 85 beds in the subdistrict of Collier County (Tr.253). When a need for beds exists in the subdistrict but not the district as a whole, subsection (g) of the rule allows new beds to be added only if existing beds are being utilized at a 90 percent or greater occupancy rate (Pet. Ex. 5, Tr.253-255). The current utilization rate for nursing home beds in Collier County is 61.1 percent (Pet. Ex. 7, Tr.255). Since the current utilization rate is less than 90 percent, no additional beds are needed in Collier County (Tr.256). Approval of the Beverly application to construct a 120-bed nursing home in Marco Island would, in the words of the applicable rule, "cause the number of community nursing home beds in that departmental service district to exceed the number of community nursing home beds calculated by the methodology described in subsections (21)(b), (c), (d), (e), and (h) . . . " of Rule 10-5.11(21), Florida Administrative Code. (Pet. Ex. 2, 5, 6, and 7; testimony of expert witnesses Mr. Knight and Ms. Dudek.) HRS is presently considering the adoption of amendments to the nursing home need methodology provisions presently found in Florida Administrative Code Rule 10-5.11 (21)(b) through (h). If the present form of the tentative amendments to Rule 10-5.11(21)(b) through (h) were to be adopted and become effective soon enough to be applicable to Beverly's application in this case the result would be the same as under the current rule. Approval of Beverly's application would cause the number of community nursing home beds in HRS District VIII to exceed the number of community nursing home beds calculated by the methodology of both the existing rule and the tentative amendments to the rule. (Testimony of expert witness Knight.) Florida Administrative Code Rule 10-17.020(2)(b), adopted by HRS, reads as follows: (2) Policies and Priorities. In addition to the statewide criteria against which applications are evaluated, applications from District 8 will be evaluated against the following local criteria: a. * * * b. Nursing home services should be available within at least one hour typical travel time by automobile for at least 95 percent of all residents of District 8. (Pet. Ex. 3) HRS District VIII consists of seven counties. The current population estimate of these seven counties is 679,019. According to the most recent census information, the permanent population of Marco Island is 8,605. Four community nursing homes are located in Naples, which is also in Collier County. Typical travel time by automobile from the center of Marco Island to the center of Naples is approximately 30 to 45 minutes, depending on the season of the year. (Tr.59-60, 83, 118, and 151) In arriving at the current utilization rates for purposes of applying the need determination methodology, HRS relied on the latest available quarterly nursing home census reports. (Pet. Ex. 7; Tr.255-256) In compiling the Collier County average occupancy rate for purposes of applying the need determination methodology, HRS counted as existing beds all of the licensed beds of all of the community nursing homes in Collier County, which included 114 beds licensed for Gulf Drive Residence, Inc., and 120 beds for Americana Healthcare Center. (Pet. Fx. 2)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health and Rehabilitative Services enter a final order in this case DENYING the application of Beverly Enterprises-Florida, Inc., for a certificate of need to construct a new community nursing home in Marco Island, Collier County, Florida. DONE and ORDERED this 20th day of September, 1984 in Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1984.
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be granted a Certificate of Need to construct a 120-bed nursing home in Hillsborough County, Florida. Petitioner contends that there is a need for such a facility; that the Department's rules do not apply in determining need; and that to the extent the Department's rules do apply, they are not a reasonable measure of the need for a nursing home facility. The Department contends that its rules are reasonable and applicable to this proceeding, and that there is no need for the proposed facility.
Findings Of Fact Petitioner is seeking a Certificate of Need authorizing the construction of a 120-bed nursing home facility on Fowler Avenue between Interstate Highway 10 and 56th Street in Hillsborough County, Florida. At the time that the Application for Certificate of Need was filed, the total project cost was estimated at $3,688,523. Cost estimates have been revised since that time, and at the time of the hearing, it was estimated that the total capital expenditure required would be $5.3 million. Petitioner proposes to provide intermediate and skilled care facilities and to secure Medicare and Medicaid approval. Petitioner has built and operated, numerous nursing home facilities in states other than Florida. Petitioner has the necessary resources, competence and experience to build and operate the proposed nursing home facility. Prior to the adoption of Rule 10-5.11(21), Florida Administrative Code, the Department was utilizing a 1980 Health services Plan adopted by the Florida Gulf Health Services Agency to determine the need for nursing home facilities in Hillsborough County. Under the plan, the need for nursing home facilities was basically determined by estimating the population of persons 65 years old and older in the services area three years in the future and using a ratio of 27 nursing home beds per 1,000 persons in that population category. A reasonable estimate of the total population of persons 65 years of age and older in Hillsborough County for 1986 is 86,090. Using the 27 beds per 1,000 ratio, total nursing home beds needed in the area by 1986 would be 2,324. There are at present 2,828 nursing home ,beds that are licensed or that have been approved for licensure in Hillsborough County. Therefore, under the Health Services Plan, there will be 507 more nursing home beds than needed by 1986. The Health Services Plan allowed for an increased allocation of 5 percent of existing nursing home beds when the percent of occupancy of nursing home beds within the area exceeded 90 percent for the previous six months. That percentage has been exceeded in Hillsborough County, and a demand for 111 additional nursing home beds therefore exists under the Health Services Plan. More new beds than that have already been allocated through Certificates of Need issued to applicants who filed prior to the time that the Petitioner filed its application. Under the Health Services Plan, there is, therefore, no need for the facility proposed by the Petitioner. In determining the need and demand for nursing home facilities, the Department now utilizes a formula set out in its Rule 10-5.11(21), Florida Administrative Code. Under the rule, the Department will not normally approve applications for additional nursing home beds in any service district unless a need for the beds is demonstrated by application of a formula set out in the rule. Under the formula, a ratio of 27 nursing home beds per 1,000 persons age 65 or older in the population is utilized. This formula historically allows for construction of nursing home beds which exceeds need. Persons who live in poverty have a historic need for nursing home services that exceeds that for the remainder of the population. The Department's formula thus applies a poverty ratio to the 27 beds per 1,000 formula. The percentage of poverty in Hillsborough County exceeds the state average. The bed need ratio for Hillsborough County under the Department's rule is therefore 33.1 beds per 1,006 of aged population. Under its rule, the Department utilizes the most recent mid-range population projections published by the Bureau of Economic and Business Research at the University of Florida to determine the population of the service district. In Hillsborough County, the population age 65 and above was estimated by that bureau for 1986 to be 86,090. Applying the 33.1 beds per 1,000 ratio, the theoretical bed need for Hillsborough County for 1986 is 2,845 beds. Only 2,692 beds have actually been licensed or approved for Certificates of Need, however. Under this circumstance, the Department, utilizing its rule, would determine "actual demand" by multiplying licensed beds times the actual percentage of occupancy within Hillsborough County to get a current daily occupancy. The percentage of occupancy in Hillsborough County is 94.8 percent. There is therefore a current daily occupancy of licensed beds of 2,097. Under the rule, beds can be added to reach a prospective occupancy rate of 80 percent when theoretical need exceeds the number of licensed, and approved beds. This establishes an actual demand for nursing home beds. In Hillsborough County, this is 2,621 beds, or 409 beds more than are presently licensed 480 beds have been approved for licensure, however, and there is therefore no actual demand for nursing home beds in Hillsborough County that would justify the issuance of a Certificate of Need to Petitioner. The Department's Rule 10-5.11(21), Florida Administrative Code, is a reasonable method of determining theoretical need and actual demand for nursing home beds. There are other reasonable methodologies that could be followed. The Department's methodology is not, however, unreasonable, arbitrary, or capricious. Even if application of the formula does not demonstrate any need or demand for nursing home services, the Department can grant a Certificate of Need if other circumstances exist that would justify the addition of new nursing home beds. The applicant has failed to establish that any such conditions exist in Hillsborough County. It has not been established that persons who live in poverty, Medicaid or Medicare patients, or any segment of the population are unable to obtain nursing home services. It has not been established that existing facilities are providing inferior services. The Department's Rule 10-5.11(21), Florida Administrative Code, allows for the construction of more nursing home beds in districts with a high degree of poverty than would be allowed in districts where there is a lesser degree of poverty. This factor has been placed in the formula because it has been established that persons who live in poverty have a greater need for nursing home facilities than do other segments of the population. The formula does not operate to discriminate against persons who do not live in poverty. Rather, it serves to allow the placement of facilities where they are needed.
The Issue Whether petitioner is entitled to be reimbursed by respondent six hundred twenty dollars and thirty-six cents ($620.36) for intermediate nursing care provided to one John W. Bernard during the period July 1 to July 27, 1983?
Findings Of Fact Some time in 1980 Mr. Bernard entered petitioner's facility for intermediate nursing care, in order to recuperate from amputation of his leg. He made satisfactory progress, and the utilization review committee eventually recommended his transfer to an adult congregate living facility. On May 11, 1982, respondent's Medicaid Services Unit mailed a notice, received by the petitioner the following day, to the effect that Mr. Bernard would no longer be eligible for intermediate nursing care under the Medicaid program, effective May 22, 1982. Another office within the Department of Health and Rehabilitative Services (HRS), the office from which social workers are deployed (HRS-SRS), also received a copy of the notice. Mr. Bernard who is legally competent, and HRS' payments office also got copies. On or about May 12, 1983, as soon as she saw the notice, Ms. M. L. Croft, petitioners administrator, telephoned HRS' payment office. She did not understand that payment for Mr. Bernard's nursing care would be cut off as a result of the notice. HRS-SRS got a telephone call from petitioner on June 22, 1982, requesting assistance in relocating Mr. Bernard. Ms. Sue Henderson, the HRS-SRS supervisor, asked Ms. Velma L. Murphy, a social worker in respondent's employ, to handle the matter; and Ms. Murphy visited Bay Convalescent Center and spoke to Mr. Bernard on June 22, 1982, after checking with the Hiland Park Retirement Home, an adult congregate living facility in the same general vicinity, and learning of a vacancy there. Mr. Bernard did not want to make the move, but Ms. Murphy asked him to consider it, and left. Some time later, Ms. Murphy got word that somebody at petitioner's had called and said that a friend of Mr. Bernard's had asked for a hearing on the change in his status. Ms. Murphy telephoned the nursing home herself and was told the same thing. In fact, however, there never was any appeal of Mr. Bernard's change of care status. On another visit to the nursing home, in July, Ms. Murphy was asked by Ms. Croft to help make arrangements to transfer Mr. Bernard and made plans to effect the move before the end of the month. When she learned, on July 27, 1982, that petitioner was no longer being paid for Mr. Bernard's care, she arranged for his transfer that day to an adult congregate living facility. On July 26, 1982, Linda Dorman, a public assistance eligibility specialist II in respondent's employ, had come across a copy of Mr. Bernard's change of status notice in the course of processing rate changes for Bay Convalescent Center. From her examination of the statement of institutional services submitted by petitioner, she could see that petitioner was billing for services rendered to Mr. Bernard, so she notified petitioner that no additional moneys would be paid to petitioner by HRS on account of Mr. Bernard; and that payment already made on his account for the period from June 21 to June 30, 1982 had been inadvertant.
Recommendation It is, accordingly, RECOMMENDED: That respondent reimburse petitioner for Mr. Bernard's care for 36 days at the rate in force at the time for adult congregate living facilities, less what petitioner has already received on account of care rendered to Mr. Bernard June 22 to June 30, 1982, inclusive. DONE and ENTERED this 20th day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983. COPIES FURNISHED: Michael C. Overstreet, Esquire 229 McKenzie Avenue Panama City, Florida 32401 John Pearce, Esquire 2639 North Monroe Street Tallahassee, Florida 32301 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner, Thelma S. Malmberg, is a 47-year old director of nursing at Americana Health Care Center (Americana) in Winter Park, Florida. Americana is a 138-bed skilled nursing facility. She has been employed at that facility since October, 1984. Prior to that time, she served as both director and assistant director of nursing at New Horizon Rehabilitation Center (New Horizon), a nursing home facility in Ocala, Florida, for approximately two years. Before that, she was manager of the quality assurance department at Marion Community Hospital in Ocala from 1974-1982, and at Munroe Memorial Hospital in Ocala from 1971-1974. Malmberg was also a registered nurse from 1968 to 1971. Using her lengthy experience in the health field, Malmberg made application for licensure as a nursing home administrator on April 26, 1984, with respondent, Department of Professional Regulation, Board of Nursing Home Administrators (Board). After reviewing the application and supporting documentation, the Board issued its proposed agency action in the form of a letter on May 30, 1984, advising Malmberg that her application was being denied on the grounds her "work experience and education appears to be limited to nursing," and that "additional detailed administrative experience is required to meet Florida's administrative standards in the health care area." The denial prompted the instant proceeding. According to statutory requirements, as codified in Section 468.1695, Florida Statutes, an applicant for licensure by examination must be 18 years of age or older, a high school graduate or equivalent, and meet one of four criteria in the educational and work experience areas. As is pertinent here, Malmberg contends she has had "24 years of practical experience in a related health administration area," and is therefore eligible to take the examination. The Board has promulgated Rule 21Z-11.09, Florida Administrative Code, which describes the practical experience in a related health administration area as follows: (2) function in a position of total responsibility for the operation and administration of a health care facility which treats and houses patients such as a hospital (or a major subunit thereof), adult congregate living facility of at least 50 beds, hospice, or infirmary. The applicant must show evidence of the performance and practical application of executive duties and management skills including planning, organizing, staffing, directing and controlling. The parties agree it is this experience which Malmberg must possess in to take the examination. In her present position as director of nursing at Americana, Malmberg supervises a 100-employee nursing department. She interfaces with all other departments of the nursing home, reports directly to the administrator, and acts as administrator in the administrator's absence. To date, however, the administrator has not been absent. While serving as director and assistant director of nursing at New Horizon, she supervised an 80-employee department, and reported directly to the nursing home's administrator. She also performed the duties of an administrator in the administrator's absence, which occurred for approximately 1 1/2 months during her total tenure with New Horizon. In both Americana and New Horizon, Malmberg has been responsible for planning, organizing, staffing, directing and controlling the nursing department. From 1974 till 1982, Malmberg was the manager of the quality assurance department of a large hospital in Ocala. The quality assurance department is considered a major department within the hospital and Malmberg had responsibility for planning, organizing, staffing, directing and controlling its various functions as well as interfacing with other departments. On this job, she reported directly to the hospital administrator. Malmberg has also attended various seminars in the health field area over the last ten years or so, and served for six years on the Board of Directors of the Marion-Citrus Mental Health Center, a community mental health board. According to uncontroverted testimony of the Board's chairman, a director of nursing is not in a position of "total responsibility" within the meaning of the rule unless she is designated as a designee to act in the absence of the administrator. Further, the administrator must be absent for at least four years in order for the designee to fulfill the four years of practical experience requirements. In Malmberg's case, she has acted in the administrator's stead for only a few months which is far short of the necessary time. Similarly, her supervision of a single hospital department for a number of years does not qualify for "total responsibility," nor does attending seminars add to her credentials. Therefore, she has not been in a position of total responsibility for the operation and administration of a health care facility for the requisite period of time and is presently unqualified for licensure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Thelma Malmberg for licensure by examination as a nursing home administrator be DENIED. DONE and ORDERED this 27th day of November, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-0675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of November, 1984. COPIES FURNISHED: John S. Lynch, Esquire Post Office Box 696 Ocala, Florida 32678 Lawrence S. Gendzier, Esquire Room 212, 400 West Robinson St. Orlando, Florida 32801
Findings Of Fact The Petitioner, Ronnie Mitchell, d/b/a Mitchell's Adult Congregate Living Facility (Mitchell), located in Pensacola, Florida, has operated an adult congregate living facility (ACLF) at the same location for the last five years. The Petitioner's prior license expired August 11, 1981, and on July 6, 1981, the Petitioner applied for renewal of that license. The Petitioner, Karen Simons, d/b/a Golden Manor Adult Congregate Living Facility, also located in Pensacola, Florida, took over operation of Golden Manor, a previously existing adult congregate living facility in August, 1981, also applying for licensure. The Respondent is an agency of the State of Florida, charged under Chapter 400, Part II, of the Florida Statutes, with licensing and regulation of adult congregate living facilities. After receiving the application for licensure by the Petitioners, the Respondent, by "Administrative Complaint" announced its intent on October 6, 1981, to deny both Petitioners' applications. Both Petitioners accordingly filed petitions for hearing pursuant to Section 120.57(1), Florida Statutes, on October 19, 1981. As of the date of the hearings in this cause, there were twelve residents in the Golden Manor ACLF. At that time there were six non- family residents at the Mitchell ACLF, all paying their contracted fees entirely on their own and receiving no state subsidy. The Mitchell ACLF is operated by Ronnie Mitchell and his wife, Marsha Mitchell, who reside at the facility in a split-level home with their three minor children. The Mitchells live upstairs and the residents live in the downstairs portion of their home. The Amended Administrative Complaint charges that a total of five residents of Golden Manor and at least two residents of the Mitchell facility were observed by the Respondent's representatives using full-bed rails or being restrained in wheelchairs and that they require nursing services which ACLFs cannot provide. All the residents are present in these facilities upon the recommendations of their personal physicians. All the residents live in a fairly close family-type setting and were shown to be personally satisfied with their placement in these facilities, as were their physicians. Ethel Alto is an elderly resident of Petitioner Mitchell's facility and is approximately 86 years of age. Her physician, as well as Marsha Mitchell, described her as very independent by nature. She has the following physical conditions: a) dysarthria, meaning that she has trouble speaking (she is mentally competent, however, and communicates to Marsha Mitchell by words and signs and can answer yes or no); b) she suffered a stroke in 1977 and has right hemiplegia or partial paralysis; c) she suffers from intermittent gastro- intestinal complaints; d) she has a heart condition and wears a pacemaker; e) her overall physical condition is described by her physician as relatively stable. She takes a variety of prescription medicine prescribed by her physician. The only instruction he has ever given her concerning these medications is that she should be observed for over-sedation since he prescribed thorazine on an as-needed basis. The evidence establishes that Ms. Alto is happy in her facility and reacts well with the other residents. Due in part to her advanced age, she elects to confine herself to her bed a substantial period of time, but does get out of the home for automobile rides with her family or friends. The evidence establishes that Ethel Alto has a particularly close relationship with the minor children of Ronnie and Marsha Mitchell, as well as the other family members. Ms. Alto requires the following assistance as a resident of the Mitchell facility: Getting into and using her wheelchair. Getting out of bed. Receiving a partial bed bath. Dressing. Cutting meat while dining. Shampooing and grooming her hair. Cutting her nails. Using the toilet facilities. Ms. Alto's personal physician is Dr. Paul Baroco, a specialist in internal medicine, who has been her physician since January 17, 1977. Dr. Baroco is the most experienced and most knowledgeable witness regarding Ms. Alto's physical condition and general health, as well as her emotional needs. The Respondent has taken a position that Ms. Alto needs numerous "nursing services," a view chiefly espoused by Helen Koroscil, a nurse for the Respondent. Ms. Koroscil's opinion was based primarily on a review of records pertaining to Ms. Alto, as well as an observation of her, but with no physical examination. Dr. Baroco has been her personal physician for a substantial period of time, with a longer and more detailed knowledge of Ms. Alto's physical and mental condition and emotional needs. Inasmuch as Dr. Baroco has a longer and more detailed experience with the condition and needs of Ms. Alto, his specific denials of each of the allegations of allegedly required nursing services by the Respondent are supported by the weight of the evidence and accepted. Further, Marsha Mitchell, who has more frequently and recently observed Ms. Alto taking medication, established that the lady needs no assistance in taking medication other than in opening the child-proof caps on the medication bottles. Thus, it is established by the weight of the evidence that Ethel Alto was not receiving any nursing services at that facility. Ms. Izetta Smith is a 60 year old lady who entered the Mitchell facility on September 5, 1981. She entered the facility at the direction of her physician, Dr. Layne Yonehiro, directly from hospitalization at Sacred Heart Hospital in Pensacola, Florida. She had been under treatment for ulcers and possible gangrene on one or both feet. She was admitted to Sacred Heart Hospital on May 8, 1981, and during her hospitalization had undergone a right femoral bypass, a debridement of the right leg, and a debridement of the left leg, and skin grafts on the right and left heel, as well as removal of her gall bladder. Ms. Smith was described by her physician and her daughter, both of whom testified, as cantankerous and difficult to treat due to her personality and negative reaction to her hospitalization. She was uncooperative in eating a proper diet in the hospital, which contributed to her weakened condition while there. Dr. Yonehiro determined that ultimately Ms. Smith would have to undergo an amputation procedure and he therefore removed her from the hospital and placed her in the Petitioner's ACLF for a period of time so that "she could get some nutrition and build herself up, feel a little better about herself, and come back," that is, be readmitted to the hospital for the amputation procedure. Dr. Yonehiro thought that this was necessary because of the patient's negative attitude toward her treatment while in the hospital and the attendant failure to eat properly. Dr. Yonehiro, as well as Ms. Smith's daughter, Brenda Arnett, felt that Ms. Smith was not receiving the individual care she needed in the hospital, nor would she in a large facility such as a nursing home. Dr. Yonehiro felt that her needs for emotional support and adequate nutrition and individual attention were best served by her being placed in a congregate home. Dr. Howard Currie, testifying for the department, felt that Ms. Smith needed nursing services based upon an assessment made by the department's procedures used to determine the level of nursing care (i.e. skilled or unskilled) a resident or applicant for residency in a nursing home requires. Witness Kate Byrd for the Respondent, who participated in the assessment as part of the medical review team, admitted that the assessment process, with regard to the question of nursing needs by Ms. Smith, did not include any inquiry or elicit information concerning the emotional needs of Ms. Smith or any other characteristics of her health situation not contained within her hospital records. Dr. Currie felt that Ms. Smith required nursing services based upon the medical review assessment procedure, which takes into consideration such mechanical criteria as staffing ratios, the presence of assistance in case of a fire and so forth, without considering directly the allegations raised in this proceeding regarding whether Ms. Smith herself subjectively required nursing services due to her physical or emotional health status. Dr. Yonehiro observed Ms. Smith everyday for her four month hospitalization prior to entry into the Petitioner's facility and thus had a far more intimate and complete knowledge of Ms. Smith's health status, including her emotional needs. Dr. Yonehiro established that Ms. Smith needed a small homelike atmosphere without absolutely requiring the presence of a nurse or physical therapist. It is true her condition ultimately required amputation of her foot or feet, but during the interim, while she was awaiting Dr. Yonehiro's decision that she had achieved the physical and emotional stamina required for that surgery, Dr. Yonehiro felt that Ms. Smith's individual health situation was best served by the intimate personal attention she could obtain in the congregate living facility. Because of his superior knowledge of Ms. Smith as an individual and her physical and emotional condition based upon his long experience with Ms. Smith as a patient, his testimony established the fact that, at the time of the hearing, she did not need nursing services. Mary Doyle is an 82 year old lady who has had a number of small strokes, suffers from hardening of the arteries and a heart condition. She suffers from organic brain syndrome and has been senile for several years. She is incontinent of bowel and bladder. The Respondent contends that Mary Doyle needs nursing services, including training in ambulation and transfer techniques and "reality orientation." Ms. Doyle needs a significant amount of assistance with all phases of living. She requires assistance getting into and out of her wheelchair, assistance with bathing, assistance with dressing, assistance with cutting her food, although she is able to feed herself, and assistance with grooming and personal hygiene. Her physician of twenty years, Dr. Nass, has not allowed her to take her own medication for several years due to her mental condition. The staff at Golden Manor assists her in taking medication insofar as it opens the bottle and sometimes helps her retrieve a tablet from the bottle, but Ms. Doyle places the medication in her own mouth and swallows it. Ms. Doyle's daughter, Rosemary Brockman, established that Ms. Doyle had been at Golden Manor for three years and that she visits her nearly every night. Dr. Nass had controverted the allegations by the Respondent that Mary Doyle needed nursing services and Rosemary Brockman, who is a practicing registered nurse, corroborated Dr. Nass's position That her mother requires no nursing services from the facility. Myrtle Canaan is an elderly lady suffering from arteriosclerosis and senility. In the past she has had a urinary tract infection, which necessitated a catheter for a time. A visiting nurse attended to the catheterization at the facility. There is no dispute that that procedure required nursing services, but it is not at issue herein. Ms. Canaan requires assistance in walking, although she is able to use a walker and requires some assistance getting out of bed and into a chair. She requires assistance with bathing, dressing, grooming and personal hygiene, although she requires minimum assistance with eating. Dr. R. Wayne Miller is Ms. Canaan's physician and has been since March 14, 1975. He specializes in internal medicine, with a speciality in nephrology. He established that Ms. Canaan is senile and in his opinion would be incapable of rehabilitation or "reality orientation." Dr. Miller established that the only condition that Ms. Canaan had had requiring the presence or attendance of a nurse was the early catheterization during the course of her urinary tract infection. At that time the visiting nurse administered sufficient care for that condition. Dr. Miller established that a nurse in full-time attendance was not required for Ms. Canaan. He found that a nurse was not required merely because she was senile. She requires assistance with taking her medication in the same manner as Mary Doyle. That is, the staff opens the medication bottle and places it in front of her whereupon she puts her finger in the bottle and takes a tablet out and swallows it. Dr. Currie opined that Ms. Canaan required nursing services based primarily upon information stipulated to by the parties that she requires assistance in bathing, walking and other aspects of daily living. Such does not constitute nursing.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Respondent granting the licenses applied for. DONE and ENTERED this 1st day of October, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1982. COPIES FURNISHED: Bruce McDonald, Esquire 7th Floor, Century Bank Tower Post Office Drawer 1271 Pensacola, Florida 32596 John Searcy, Esquire District I Legal Counsel Department of HRS Post Office Box 12836 Pensacola, Florida 32576 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
Findings Of Fact On or about January 7, 1981, HCM was issued CON No. 1616, authorizing construction of a 78-bed nursing home facility to be located in Lee County, Florida. HCM has commenced construction of this project on a 120-bed frame. Subsequently, HCM applied to HRS for a CON for an additional 42 nursing home beds to be added to the above-described project. By letter dated April 28, 1983, HRS informed HCM of its intent to deny HCM's application for the additional 42 nursing home beds on the grounds that the proposed project was not consistent with the nursing home bed need methodology contained in Rule 10-5.11(21), Florida Administrative Code. Lee County has been established as a specific subdistrict of HRS District VIII for determination of nursing home bed need. Rule 10-5.11(21)(c), Florida Administrative Code. The record in this cause establishes a percentage of 8.61 of elderly living in poverty in Lee County, as compared to a percentage of 12.70 statewide. There exists a statewide bed need of 27 community nursing home beds per 1,000 population age 65 years and older. Finally, a population of 65,703 is projected for Lee County in 1986. When these factors are combined in accordance with the need methodology formula contained in Rule 10-5.11(21)(b), a need of 1,203 community nursing home beds is established for Lee County in 1986. When this same calculation is made districtwide, using a projected 1986 population for District VIII of 201,392 age 65 and older, a need for 3,686 community nursing home beds results. At the time of final hearing in this cause, there were 748 existing licensed community nursing home beds in Lee County, and an additional 222 such beds which had previously been approved by HRS. When the total of 970 existing and approved beds are subtracted from the 1986 projected bed need in Lee County, a net bed need of 233 beds results for 1986. At the time of final hearing in this cause, there were 3,335 existing licensed community nursing home beds in District VIII, and an additional 1,337 which had been approved. The total of 4,512 existing and approved community nursing home beds in District VIII exceeds the need in District VIII according to the requirements of Rule 10-5.11(21) by 824 beds. Where, as here, the evidence establishes that a subdistrict indicates a need for additional bed capacity, but the district as a whole shows no additional need, Rule 10- 5.11(21)(f)2, Florida Administrative Code, establishes a current utilization threshold of 90 percent or higher in the subdistrict. In this case, the evidence establishes that the appropriate current utilization rate for Lee County is 91.5 percent. In addition, Rule 10-5.11(21)(h)2, Florida Administrative Code, requires a prospective base rate of utilization of 80 percent when the need methodology indicates a subdistrict need and the lack of need in the district as a whole. The evidence in this cause establishes an average Lee County patient census of 684, and 970 currently licensed and approved community nursing home beds which must be factored together with HCM's request for an additional 42 beds. When the formula contained in Rule 10-5.11(21)(g) is applied to this data, the prospective utilization rate is 67.6 percent, which fails to meet the threshold 80 percent requirement contained in Rule 10-5.11(21)(h)2. HCM apparently does not contest the results of the application of the bed need methodology contained in Rule 10-5.11(21), but instead argues that the results of the formulae should not be applied to its application because of the existence of exceptional circumstances in Lee County. In this regard, HCM adduced testimony attempting to establish an historical imbalance between the number of community nursing home beds located in Lee and Sarasota Counties, purportedly necessitating the placement of Lee County residents receiving Medicaid or assistance from the Veterans Administration 70 to 100 miles from their families, or continuing hospitalization of those patients in a more costly acute care facility. It is specifically concluded, that the record in this cause fails to contain any competent, credible evidence to establish that Medicaid and VA recipients in Lee County have been so historically underserved as to merit the granting of the 42 additional nursing home beds requested by HCM. Further, even if this were not the case, HCM has failed to establish that the 222 additional community nursing home beds approved for Lee County will not adequately serve the interests of Medicaid and VA recipients in Lee County in 1986. Rule 10-5.11(21) purports on its face to account for the needs of the elderly over 65 years of age living in poverty, and this record contains no showing that the rule in any way underestimates that need.
Findings Of Fact Petitioner, Health Quest Realty II, filed an application with respondent, Department of Health and Rehabilitative Services (HRS), on an undisclosed date seeking a certificate of need to construct a 120-bed nursing home in Lee County, Florida at a cost of $3,108,000. After reviewing the application, HRS issued its state agency action report on January 27, 1983 in which it stated that a need for additional nursing home beds in Lee County did not exist, and that it accordingly intended to deny the application. The letter of denial accompanying the report summarized the basis for denial in the following manner: The proposed projects are not consistent with Chapter 10-5.11, Florida Administrative Code, nursing home bed need methodology. A need does not exist to add nursing home beds to Lee County through 1985. There are 347 approved but not constructed beds in the county. The bed need methodology produces an excess of 494 nursing home beds in the county through 1985. In determining need for nursing homes, a three year planning horizon is used. In this case, HRS has projected the needs of the area for the year 1986, or three years after the most current actual available data. Petitioner has a used a three year planning horizon of 1987, or three years after the hearing was held. Since 1983 data has been used and is the most current, 1986 is the more appropriate planning horizon for this proceeding. Lee County lies within HRS District 8 which is made up of six counties in Southwest Florida. The District in turn is made up of several subdistricts, of which Lee county alone constitutes one. HRS has determined the overall nursing home bed need for the District, as well as bed requirements for subdistricts within the district. The actual numbers are obtained by making calculations required by a formula contained in Rule 10-5.11(21), Florida Administrative Code. According to exhibits introduced by HRS, there are currently 3,668 licensed beds and 1,217 approved beds within District 8, for a total of 4,895 beds. The formula produces a district-wide need of 3,685 beds. Therefore, there will be a surplus of 1,210 beds throughout the District in 1986. The same HRS exhibits reflect that there are currently 808 licensed beds and 222 approved beds within Lee County for a total of 1030 beds. Under the formula, a need for 1,202 beds exists. Accordingly, there exists a mathematical need for 172 beds in 1986 under the rule. 1/ However, the rule provides that where a shortage of beds exists within a sub-district, but the district as a whole shows no additional need, beds may be used up to the point at which further additions would cause the prospective utilization rate for the subdistrict (county) to drop below the prospective occupancy rate (80 percent) specified in the rule. After factoring the number of proposed beds into the formula, the countywide prospective occupancy rate drops to 64.3 percent, which is below the 80 percent rate required by the rule. 2/ Petitioner relies upon a number of factors to support the authorization of additional beds in Lee County, Florida. First, it introduced into evidence the District 8 Health Council report issued on June 29, 1983 which concluded there will exist a need for 331 additional nursing home beds in 1986. But it was not disclosed whether this report was ever adopted by HRS. It also introduced the 1981 State Health Plan which reflected a need for 312 more beds on a district-wide basis in 1986. But these calculations must be discounted in view of the outdated source data used in the Plan. Petitioner further relied upon a recent HRS decision finding a need for 552 additional nursing home beds in 1986 in Lee County. However, other than the decision itself, petitioner offered no other independent evidence to support that decision's reasoning and rule interpretation or why it should apply to this proceeding. Finally, petitioner attempted to demonstrate that Lee County has a small number of nursing home beds in relation to its impoverished elderly population. But these factors are already considered by HRS in its formula for determining need, and if used in the manner suggested by petitioner, would constitute a deviation from the rule.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Health Quest Realty II for a certificate of need to construct a 120-bed nursing home in Lee County, Florida be DENIED. DONE and ENTERED this 6th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1984.
Findings Of Fact The Agency For Health Care Administration (AHCA) is responsible for the administration of certificate of need laws for health care services and facilities in Florida. Life Care Centers of America, Inc. (Life Care) owns, leases and/or operates 157 nursing and retirement facilities in 27 states. It is one of the largest nursing home companies in the United States. AHCA considers Life Care a "major health care provider" for CON review purposes. In response to the fixed need pool published by AHCA in October 1993, Life Care filed a CON application, subsequently numbered CON 7501, for a 34-bed addition to a previously approved 77-bed nursing home in Clay County in AHCA District 4, Subdistrict 2. The Letter of Intent ("LOI") deadline for Life Care's application for the December, 1993 batching cycle was November 1, 1993. Rule 59C-1.008(5)(h), Florida Statutes, requires a listing of the total approximate amount of capital projects at the time of letter of intent deadline. The application filing date for this batching cycle was December 1, 1993, with an omissions response deadline of January 14, 1994. Section 408.037(2)(a), Florida Statutes, requires a complete list of capital projects at the time of application. Life Care application 7501 was deemed complete by AHCA on January 14, 1994. AHCA preliminarily denied Life Care's application for CON 7501 for failing to include the total project costs attributable to CON applications which were preliminarily denied by AHCA, but pending due to administrative challenges filed by Life Care. The amount listed on Schedule 2 of Life Care's application on the line described as "allowance for projects denied and appealed various" is $6,020,387. In the May, 1992 nursing home batching cycle, Life Care applied for a CON to build a 120-bed nursing home in Orange County, AHCA District 7, Subdistrict 2. That application (CON 7028) was preliminarily denied and, by Petition for Formal Administrative Hearing dated June 25, 1993, Life Care challenged AHCA's action. Life Care failed to include CON 7028 based on pending settlement negotiations on November 1, 1993, which resulted in the filing on January 12, 1994, of a Notice of Voluntary Dismissal of its challenge to the denial of CON 7028. See, DOAH Case No. 93-3912. Life Care's CON 7028 proposed total project cost was $5,644,047. In the June, 1993 nursing home batching cycle, Life Care applied for a 69-bed nursing home addition in Citrus County, AHCA District 3. That application (CON 7322) was subsequently denied and by Petition for Formal Administrative Hearing dated October 5, 1993, Life Care challenged that preliminary agency action. By Notice dated March 7, 1994, Life Care voluntarily dismissed its challenge to the denial of CON 7322. See DOAH Case No. 93-6009. Life Care's CON 7322 proposed total project cost was $1,473,000. However, Life Care entered into a settlement for a 9-bed partial award for a total project cost of $82,100. In June 1993, Life Care also applied for a CON to build a new 120-bed nursing home in Flagler County, in AHCA District 4, Subdistrict 4. That application (CON 7330) was subsequently denied and, by Petition dated October 6, 1993, Life Care challenged that preliminary agency action. Life Care failed to list CON 7330 on its Clay County application, based on pending settlement negotiations which resulted in its voluntary dismissal of its petition on January 14, 1994. See, DOAH Case No. 93-6011. Life Care's CON 7330 proposed total project cost was $5,656,000. In the same June 1993 cycle, Life Care applied for a CON to construct a new 42-bed nursing home in Polk County, AHCA District 6, Subdistrict 5. That application (CON 7355) was subsequently denied, and the denial challenged by Petition dated September 27, 1993. As of the date of this hearing, that application was pending at DOAH. See, DOAH Case No. 93-5747. Life Care's CON 7355 proposed total project cost was $2,925,871. Life Care also applied, in June 1993, for a CON to construct a new 120-bed nursing home in Palm Beach County, AHCA District 9, Subdistrict 4. That application (CON 7386) was subsequently denied, and that denial challenged by Petition dated October 6, 1993. At the time of this hearing, that application was pending at DOAH. See, DOAH Case No. 93-6006. Life Care's CON 7368 proposed total project cost was $6,101,000. The combined total of the projects costs equals $21,799,918 for CONs 7028, 7322, 7330, 7355 and 7368, not $6,020,387 as Life Care reported for "allowance for projects denied and appealed." Life Care also reported $15,000,000 as "other capitalization." Accepting AHCA's claim that $21,799,918 in project costs should have been reported, Life Care asserts that the total of $21,020,387 ($6,020,387 + $15,000,000) is available to fund the five projects, leaving an insignificant omission of 9/10 of 1 percent of total reported projects and expenditures, or $779,531 of $92,709,260. The Clay County CON application described the line item of $6,020,387 as "Allowance for projects denied and appealed" as follows: (3) An allowance for potential approval of a portion of the Life Care projects applied for in Florida for the batching cycles May 1992, November 1992, and May 1993 which were denied by the Agency and have been appealed by Life Care. These projects are for Orange County, Polk County (second project), Citrus County, Palm Beach County, and Flagler County. All of these projects were anticipated to be funded through a combination of Life Care equity and bank loans as outlined in the individual CON applications. Life Care described "Other Capitalization" as follows: (4) To be conservative, an allowance of $15,000,000 for currently unidentified capital projects which may occur over the next three years, including items such as facility renovations or additions, acquisitions, and exercising purchase options for leased facilities. These projects will be funded as they materialize, as it is anticipated that funding will be primarily through bank loans. Life Care also listed separately the costs for projects in eleven Florida counties for which AHCA had indicated an intent to issue it CONs or for which applications were filed simultaneously with the Clay County application. These project costs total $47,830,873. All together, approved Florida projects, other states projects, CONs with intents to deny but appealed, renovations, projects exempt from CON review and other capitalization cost reported by Life Care on Schedule 2 total $92,709,260. The notes drafted by Life Care to explain schedule 2 make it clear that Life Care did not expect to use the additional $15,000,000, reported to AHCA, to cover denied but appealed projects. The same is true of the other itemized projects listed on Schedule 2. Life Care clearly states which line item was intended to apply to Orange, Polk, Citrus, Palm Beach and Flagler Counties. On the date that Life Care filed its letter of intent the total amount of these pending projects was $21,799,918 not $6,0202,387, as reported. The notes indicate that the cost estimates are based on expectations of potential approvals of the denied but appealed CONs. In effect, as Life Care's witness testified, it expected to prevail in 25 percent of its pending administrative challenges. The notes attached to Schedule 2 do support Life Care's claim that $15,000,000 designated as "other capitalization" is available for an additional projects approved after administrative proceedings. By describing its availability for "unidentified projects," Life Care demonstrated that no obstacle exists to the use of the additional $15,000,000 on preliminarily denied CON projects if Life Care is more successful in administrative proceedings than it anticipates. Life Care's claim that it does not have to apply these funds to any planned capital expenditures, is also supported by an additional note attached to Schedule 2 explaining how estimated capital budget expenditures would be funded, which is as follows: (5) Estimated capital expenditures for 1995 at Life Care facilities and the corporate, regional and divisional offices to be funded through a combination of operating cash flow and bank loans. These expenditures are pending approval when they are incorporated into the annual budget prior to each respective year. Life Care has established that the $15,000,000 for unidentified capital projects is not otherwise committed and is available to fund preliminarily denied, but challenged CONs, if more than the expected potential projects are approved. If Life Care prevails on all pending challenges, then its projections of capital project costs fall short by $779,531. If Life Care's projections of its commitments are inaccurate by $779,531, with total project costs of $92,709,260, then the omission does not render Life Care's application incomplete for failing to include the total approximate amount of capital projects. AHCA gives a preference for expanding nursing homes with fewer than 120 beds for enhanced efficiency and economics of scale. AHCA also agreed that if the $15,000,000 had been identified as available for the denied but challenged capital projects, it would have been considered by AHCA, and that Life Care has the financial resources to complete the 34-bed addition. For these reasons, Life Care's proposed 34-bed addition to its approved 77-bed construction CON is financially feasible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Life Care for CON No. 7501 to construct a 34-bed nursing home addition in Clay County, AHCA District 4, Subdistrict 2, be GRANTED. DONE AND ENTERED this 15th day of September, 1994, 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 15th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2409 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in Findings of Fact 2. Accepted in Findings of Fact 3. Accepted in or subordinate to Finding of Fact 3. Subordinate to Finding of Fact 2. Accepted in Findings of Fact 5. Accepted in Findings of Fact 4. Accepted in Findings of Fact 5. Accepted in Findings of Fact 6. Subordinate to Finding of Fact 6. 10-13. Accepted in or subordinate to Findings of Fact 7 and 13. 14-15. Accepted in Findings of Fact 16-17. 16-(16-B) Accepted in Findings of Fact 17. Accepted in Findings of Fact 18. Accepted in Findings of Fact 7 and subordiante to preliminary statement. Accepted in Findings of Fact 7. Accepted in Finding of Fact 14. Accepted in Findings of Fact 8. Accepted in Findings of Fact 10. 23-24. Issue not reached. 25. Accepted in Findings of Fact 20. 26-30. Accepted in or subordinate to Finding of Fact 21. Accepted in Findings of Fact 14 and 23. Issue not reached. Accepted in Finding of Fact 21. 34-39. Accepted in or subordinate to Findings of Fact 14 and 23. 40-49. Accepted in or subordinate to Finding of Fact 24. Respondent's Proposed Findings of Fact. Accepted in or subordinate to Finding of Fact 3. Accepted in or subordinate to Findings of Fact 4 and 7. Accepted in Findings of Fact 8. Accepted in Findings of Fact 9. Accepted in Findings of Fact 10. Accepted in Findings of Fact 11. Accepted in Findings of Fact 12. 8-10. Accepted in part in Findings of Fact 13-24 and rejected in part. 11. Accepted in Finding of Fact 7. COPIES FURNISHED: R. Bruce McKibben, Jr., Esquire PENNINGTON & HAVEN, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Richard Patterson, Esquire Agency for Health Care Administration 301 The Atrium, 325 John Knox Road Tallahassee, Florida 32303-4131 R. S. Power, Agency Clerk Agency for Health Care Administration Atrium Building, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Petitioner, Health Care and Retirement Corporation of America, d/b/a Heartland of Broward, filed an application with respondent, Department of Health and Rehabilitative Services (HRS), for a certificate of need to construct a 120- bed nursing home in Broward County, Florida. After reviewing the application, respondent issued its proposed agency action in the form of a letter dated January 28, 1983 denying the application on the ground no need for 120 additional nursing home beds was demonstrated under the existing bed need methodology set forth in Rule 10-5.11(21), Florida Administrative Code. The parties now agree, and have so stipulated, that a numerical need for 101 nursing home beds exists in Broward County at the present time. They have also agreed that petitioner meets all statutory and rule criteria for the issuance of a certificate of need for those 101 beds. There are four other pending applications, including a second one by petitioner herein, for nursing home beds in Broward County. These applications were evaluated and denied by HRS in an earlier batching cycle than that of applicant. However, their final hearing was not conducted until after the hearing in this cause. Despite a contention by HRS counsel that under HRS policy or practice an earlier applicant has first priority over a later applicant to any available beds, there was no evidence to support that policy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for a Certificate of Need be granted in part and that it be authorized to construct a 101-bed nursing home facility in Broward County, Florida. DONE and ENTERED this 16th day of February, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1984.
