Findings Of Fact At all times here relevant Fountainhead Nursing and Convalescent Homes, Inc., Respondent, was licensed by the Department of HRS, Petitioner, as a nursing home. On a survey of the nursing home facilities conducted on April 8 and 9, 1980 five Class II deficiencies and twenty Class III deficiencies were reported on HRS Form 553D entitled Classification of Deficiencies for Nursing Home Licensure Requirements (Exhibit 1). These were designated HRS-1, 3, 14, 15 and 20 on Exhibit 1. Because of these Class II deficiencies Respondent was assigned a "C" rating. HRS-1 is a deficiency correctable within 72 hours. HRS-3, 14 and 20 are Class III deficiencies erroneously characterized as Class II deficiencies.
The Issue The issues in this case are whether Julie Pass, M.D., and OB/GYN Specialists of the Palm Beaches, P.A., and Wellington Regional Medical Center provided appropriate notice as required by section 766.316, Florida Statutes.
Findings Of Fact On June 16, 2011, Betsy Pinto, who is the mother of Giovanni Pillonato, first presented to OB/GYN Specialists of the Palm Beaches at their Boynton Beach Office for her initial prenatal visit. She went to the front desk where she was handed a clipboard and some documents to review and to fill out. One of the documents handed to Ms. Pinto was a form entitled, “OB/GYN Specialists of the Palm Beaches Routine Obstetrical Laboratory Studies/Information and Consents.” Ms. Pinto filled out these papers in the reception area and then was taken to a patient room with a nurse to review the forms with her. Ann Roth is a licensed LPN who works for OB/GYN Specialists. She has been employed with OB/GYN Specialists for 17 years. She was the nurse who brought Ms. Pinto back to review the forms with her. She then reviewed the forms with Ms. Pinto, and signed the form as a witness to Ms. Pinto’s signature. According to Ms. Roth, the NICA brochure, which informs patients about the NICA program, is and was always included in the initial documents handed to a patient upon the initial visit, along with an information and consent form (acknowledgement form), which includes acknowledgement of receipt of the NICA brochure. The consent form consists of one page and contains information regarding routine laboratory testing at different times in a patient’s pregnancy. The form identifies tests to be administered in four segments: Initial labs; 16-19 weeks labs; 28-32 weeks labs; and 36 week labs. Following the paragraphs enumerated above, and approximately halfway down the page, the form contains the following: You should receive a pamphlet at the time of your first visit explaining in further detail: AFP testing Cystic fibrosis testing Serum Integrated Screen Nuchal Translucency NICA participation brochure. I acknowledge receipt of the pamphlets and agree to all testing. I have been informed that the doctors in this practice participate in the Florida Birth-Related Neurological Compensation Association (NICA) program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact NICA directly at the address or phone number listed in the brochure that I have received today. (emphasis in original). Ms. Roth signed the acknowledgement form executed by Ms. Pinto, indicating that Ms. Roth witnessed Ms. Pinto signing the acknowledgement form. The date appearing below their signatures is June 16, 2011. It was Ms. Roth’s practice to then answer any questions the new patient might have regarding the papers the patient received. Ms. Roth did not recall whether Ms. Pinto had any questions or specifically what she discussed with Ms. Pinto that day in 2011, which was approximately four years prior to her deposition testimony. Initials appear in the margin to the immediate right of the bolded language regarding NICA on the form signed by Ms. Pinto and Ms. Roth. According to Ms. Roth, these initials were made by Dr. Debra Balliram, the obstetrician who saw Ms. Pinto on her first prenatal visits. Dr. Julie Pass is an obstetrician who has been employed by OB/GYN Specialists since August 2000, and who works in the Wellington, Florida, office. Dr. Pass described the normal procedure used in the Wellington office when a new patient presented there. The new patient was given a clipboard of papers to fill out which included the acknowledgement form, at the front desk. The patient would then come into the room after she had reviewed everything. At that point, the patient was asked if they had any questions about anything she received and whether she received the NICA pamphlet. Once a patient indicated that she had, the nurse would witness the acknowledgement. According to Dr. Pass, the doctor would then initial the form. On August 18, 2011, Ms. Pinto presented to the Wellington, Florida, office of OB/GYN. Ms. Pinto recalls receiving multiple forms at that visit, meeting with the OB coordinator and seeing one of the doctors at that visit. Ms. Pinto signed another acknowledgement form which is identical to the form she signed on June 16, 2011, in the Boynton Beach office. The form contains initials in the blank for a witness to sign, but does not contain initials to the right of the NICA language. Ms. Roth identified the initials of the person who witnessed Ms. Pinto's signature as those of Jennifer Kirkbride, the OB/GYN coordinator at the Wellington office. Despite her signature on the acknowledgement forms dated June 16 and August 18, 2011, Ms. Pinto insists she did not receive a NICA brochure on those dates and that no one mentioned the word NICA to her. According to Ms. Pinto, she read the top part of the form regarding labs but did not read the bottom part because she was concerned about the labs and medical conditions contained in the earlier paragraphs. Ms. Pinto acknowledges that she had an opportunity to read the entire form and the opportunity to ask questions on those dates. The routine practice described by Ms. Roth regarding OB/GYN’s practice of providing NICA information to new patients was substantially consistent with that of Dr. Pass. Considering that the forms were signed on two occasions by Ms. Pinto in conjunction with the testimony of both Ms. Roth and Dr. Pass as to the routine practice regarding giving the NICA brochure along with the acknowledgement form to new patients, the greater weight of the evidence demonstrates that more likely than not, Dr. Pass’s office provided the NICA brochure to Ms. Pinto on both June 16 and August 18, 2011, the dates that she signed the forms acknowledging receipt of the NICA brochure. On May 31, 2011, Ms. Pinto presented to Wellington Regional Medical Center (Wellington Regional). She was noted to be pregnant and was treated for nausea and vomiting in the emergency room. During Ms. Pinto’s visit to Wellington Regional on May 31, 2011, the hospital did not provide her with notice concerning the Plan. At hearing, Ms. Pinto acknowledged that in May of 2011, she had no plan to deliver at Wellington Regional. On October 10, 2011, Ms. Pinto returned to Wellington Regional with a complaint of abdominal cramping. She was seen in the emergency room where she was hooked up to a fetal monitor and received a labor check and sonogram. She was 26 weeks 3 days pregnant according to the sonogram report in her hospital record dated October 10, 2011. During her hospital visit on October 10, 2011, Wellington Regional did not provide Ms. Pinto notice concerning the plan. Ms. Pinto has no recollection of telling anyone at the hospital of her intention to deliver her baby at Wellington Regional, nor of anyone at the hospital asking her if she planned to deliver there. According to Hawley Campbell, a labor and delivery nurse at Wellington Regional, an obstetrical patient whose pregnancy is over 20 weeks' gestation is generally seen in labor and delivery. This comports with Dr. Pass’s testimony that after about 20 weeks' gestation, her patients generally are seen in labor and delivery, although where they are seen may depend on why the patient was being seen at the hospital. In any event, even if Ms. Pinto had been sent to labor and delivery, the NICA brochure and acknowledgement form would not have been given to her at that time. According to Ms. Campbell, it is hospital policy to give the NICA forms to obstetric patients if they are admitted for a 23-hour observation or as an inpatient unless they had previously signed the form during pre-admission. This comports with the testimony of Arlene Morea, patient access director for the hospital, who testified that hospital policy is to give pregnant patients the NICA forms when they are inpatient, not to outpatients treated in the ER. According to Ms. Morea, it would be possible but not practical to give NICA notice to all of the ER patients who are pregnant, as many do not ultimately deliver at Wellington Regional. Ms. Morea noted that the registrars in the ER are not clinical and are not always aware of who is pregnant and who is not. The NICA forms are given by the hospital in three scenarios. First, a pregnant patient who takes a tour of the hospital is given a copy of the preregistration packet which includes the NICA forms. Second, a pregnant patient who preregisters is given the NICA forms which would be signed with the admitting clerk. Third, the NICA forms are given to the patient when she arrives at the hospital for delivery. On December 1, 2011, Ms. Pinto went to an outpatient facility of Wellington Regional to have a left lower extremity Doppler venous ultrasound performed because of calf cramps. She did not tell anyone at this outpatient facility that she planned to deliver at the main Wellington Regional nor did she receive any NICA forms. Ms. Pinto was aware of the option of preregistration, but did not do so. Ms. Pinto also did not take a tour of the labor and delivery department prior to her delivery. On the afternoon of January 7, 2012, Ms. Pinto presented to the labor and delivery in labor and having contractions. Ms. Campbell provided the NICA brochure and acknowledgement form to Ms. Pinto within 20 minutes of Ms. Pinto’s admission to labor and delivery. According to Ms. Pinto, she was in a hospital bed and already hooked up to a fetal monitoring machine at the time she was presented with a form to sign. Ms. Pinto signed a form entitled Receipt of Notice to Obstetric Patient, which read as follows: RECEIPT OF NOTICE TO OBSTETRIC PATIENT I have been furnished information in the form of a Brochure prepared by the Florida Birth- Related Neurological Injury Compensation Association (NICA), pursuant to Section 766.316, Florida Statutes, by Wellington Regional Medical Center, wherein certain limited compensation is available in the event certain types of qualifying neurological injuries may occur during labor, delivery or resuscitation in a hospital. For specifics on the program, I understand I can contact the Florida Birth-Related Neurological Injury Compensation Association, Post Office Box 14567, Tallahassee, Florida 32317-4567, (850)398-2129. I specifically acknowledge that I have received a copy of the Brochure prepared by NICA. Ms. Pinto signed the NICA acknowledgement form and Ms. Campbell witnessed Ms. Pinto’s signature. Ms. Campbell gave Ms. Pinto the NICA brochure and testified that it is her normal practice to give the NICA brochure to every patient who signs a NICA acknowledgement form. Ms. Pinto was given an opportunity to read the form before signing it and had an opportunity to ask questions about the content of the form if she wanted to do so. In any event, Ms. Pinto’s signature was dated January 7, 2012, the day before her baby’s delivery date. Giovanni was born the next morning, on January 8, 2012. Despite her signature appearing on the acknowledgement form, Ms. Pinto denies receiving a NICA brochure at the hospital. Upon consideration of the signed acknowledgement form along with the testimony of Ms. Campbell regarding her routine practice of always giving a NICA brochure to the patient with the NICA acknowledgement form, the greater weight of the evidence established that more likely than not, Wellington Regional provided the NICA brochure to Ms. Pinto on January 7, 2012, when she signed the acknowledgement form.
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
The Issue The issues involved in this case, as stipulated to by the parties, are as follows: Issues Remaining to Be Litigated Again, because of their inability to separate the purely factual issues from those which also involve legal determinations, the parties have combined below all issues which remain to be litigated. 1A. Was it proper for DHRS to compute the formula for need contained in FACs 10- 5.11(25)(a)1-3 on a subdistrict basis? 1B. Even if the answer is "yes", did DHRS properly use the result of such a computation as a reason for denying Charter- Ocala's application in this case? 2A. Was it proper for DHRS to take into account both existing and approved beds in computing the occupancy standard formula contained in FACs 10-5.11(25)(d) 5? 2B. Even if the answer is "yes," did DHRS properly use the results of such a computation as a reason for denying Charter- Ocala's application in this case? Does the level of Charter-Ocala's indigent care commitment cause its application not to fully meet the requirement in subsection 8 of Fla. Stat. s 381.494(6)(c) that the proposed services "be accessible to all residents of the service district"? Is the proposed project financially feasible in the long term? Will the proposed project result in an increase in health care costs? In light of all factors, should Charter-Ocala's application be granted?
Findings Of Fact GENERAL Procedural. On or about October 15, 1985, the Petitioner filed an application for a certificate of need with the Respondent. On or about December 26, 1985, the Petitioner filed amendments to its application. On or about February 27, 1986, the Respondent issued a State Agency Action Report proposing to deny the Petitioner's application. On March 27, 1986, the Petitioner filed a Petition for Formal Administrative Hearing with the Respondent. The Petition was forwarded to the Division of Administrative Hearings and was assigned case number 86-1466. On November 12, 1986, the parties filed a Prehearing Stipulation in which they agreed to certain facts and conclusions of law. The facts agreed upon by the parties are hereby adopted as findings of fact. The Parties. The Petitioner is a free-standing 68-bed short-term psychiatric and substance abuse specialty hospital located in Ocala, Florida. The 68 beds consist of 48 short-term psychiatric beds and 20 substance abuse beds. The Petitioner began operating on October 17, 1985. The Respondent is the agency responsible for determining whether the Petitioner's proposal should be approved. The Petitioner's Proposal. In its application, the Petitioner has proposed an expansion of its existing 48 short-term psychiatric beds by 24 beds. The Petitioner proposed that the 24 additional beds consist of 10 beds in a geriatric psychiatric unit and 14 beds in an adult psychiatric unit. The total proposed cost of the additional beds was $1,491,850.00. The Petitioner amended the total proposed cost to $1,213,880.00 on December 26, 1985. At the final hearing, the Petitioner represented that it will operate an adult eating disorder program in the new 14-bed psychiatric unit. NEED FOR ADDITIONAL SHORT-TERM PSYCHIATRIC BEDS. A. General. The Petitioner's existing facility for which additional beds are sought is located in Ocala, Marion County, Florida. Marion County is located in the Respondent's planning district 3. District 3 consists of Alachua, Bradford, Citrus, Columbia, Dixie, Gilchrist, Hamilton, Hernando, Lafayette, Lake, Levy, Marion, Putnam, Sumter, Suwannee and Union Counties. The existing providers of short-term psychiatric services in district 3 in addition to the Petitioner consist of Alachua General Hospital, Shands Teaching Hospital, Lake City Medical Center, Munroe Regional Medical Center and Lake Sumter County Mental Health Clinic. The District III Health Plan divides the district into 2 subdistricts: southern and northern. The southern subdistrict includes Citrus, Hernando, Lake, Marion and Sumter Counties. The northern subdistrict consists of Alachua, Bradford, Columbia, Dixie, Gilchrist, Hamilton, Lafayette, Levy, Putnam, Suwannee and Union Counties. Marion County is located in the northern portion of the southern subdistrict. Ocala, which is located in the northern portion of Marion County is approximately 20 miles from the border of the subdistricts. B. Rule 10- 5.011(1)(o), Florida Administrative Code. The projected population of district 3 in 1990 is 972,450. Based upon the projected population of district 3 in 1990, there is a gross need for 340 short-term psychiatric beds for district 3 in the relevant planning horizon year 1990. There are 316 licensed and approved short-term psychiatric beds for district 3. There is a net need for 24 short-term psychiatric beds for district 3 in 1990. Of the 316 licensed and approved short-term psychiatric beds located or to be located in district 3, 149 are located in hospitals holding a general license and 167 are located in specialty hospitals. Multiplying the projected 1990 district 3 population by a ratio of .15 beds per 1,000 population indicates a gross need for 146 short-term psychiatric beds in hospitals holding a general license. There will be a net surplus of three beds located in hospitals holding a general license in 1990 (146 beds needed less 149 licensed and approved beds). Multiplying the projected 1990 district 3 population by a ratio of .20 beds per 1,000 population indicates a gross need for 194 short-term psychiatric beds which may be located in specialty hospitals. There will be a net need of 27 beds which may be located in specialty hospitals (194 beds needed less 167 licensed and approved beds). The approval of the Petitioner's proposal will not create an imbalance between specialty beds and general beds in district 3 for 1990. There is sufficient need for additional beds in district 3 for approval of the Petitioner's proposal. Occupancy. Objective 1.2 of the State Health Plan provides: dditional short-term inpatient hospital psychiatric beds should not normally be approved unless the average annual occupancy rate for all existing and approved adult short-term inpatient psychiatric beds in the service district is at least 75 percent ... [Emphasis added]. The occupancy rates in 1985 for the existing short-term psychiatric beds in district 3 were as follows: Facility Beds Occupancy Alachua General Hospital 30 77.5 percent Shands Teaching Hospital 42 77.8 percent Lake City Medical Center 9 69.2 percent Munroe Regional Medical Center 18 56.4 percent Lake/Sumter County Mental Health 18 88.0 percent. The average occupancy rate for the existing facilities listed in finding of fact 27 is 75.5 percent. There are 151 short-term psychiatric beds approved for district 3 which are not yet operational. The occupancy rate of the existing and approved beds of district 3 is less than 75 percent. The approved beds should be assumed to have a 0 percent occupancy since they are not in use. Planning Guideline 2 of the District III Health Plan provides: Additional inpatient psychiatric services should not be developed until existing or approved services reach the occupancy standards Specified in the State Inpatient Psychiatric ... Rule. The occupancy standard Specified in the State Inpatient Psychiatric Rule is 75 percent. It is reasonable to expect that approved beds will affect existing occupancy rates when the beds become operational. Consumer demand for short-term psychiatric beds cannot expand indefinitely to meet supply. Since 48 percent of the licensed and approved beds for district 3 are approved beds, it does not make sense to ignore approved beds. Applying the occupancy standard on a subdistrict basis, licensed beds in the southern subdistrict had an average occupancy rate of 72.2 percent for 1985 (excluding the Petitioner's existing beds). If the 51 approved beds at Community Care of Citrus, 35 approved beds in Hernando County and the 15 approved beds at Lake/Sumter Mental Health are taken into account, the occupancy rate is Substantially lower. The Petitioner's proposal does not meet the occupancy standards of the state health plan or the district health plan (on a district or subdistrict basis). Subdistrict Allocation of Bed Need. Planning Guideline 4 of the District III Health Plan provides: Needed inpatient psychiatric ... beds will be allocated within the District based on the proportion of need generated in each planning area using the State methodology. The northern and southern subdistricts are the appropriate planning areas under the district health plan. The projected population for the southern subdistrict for 1990 is 549,536. Applying the state methodology to the southern subdistrict, there will be a gross need for 192 short-term psychiatric beds in 1990. Subtracting the 84 licensed and 101 approved beds yields a net need for 7 short-term psychiatric beds for the southern subdistrict for 1990. Of the 192 gross beds needed for the southern subdistrict in 1990, 82 should be located in hospitals holding a general license and 110 may be located in specialty hospitals. There are 66 licensed and 101 approved beds located or to be located in specialty hospitals in the southern subdistrict. Therefore, under the district health plan, there will be a surplus of 57 short-term psychiatric beds located in specialty hospitals in the southern subdistrict in 1990. All existing and approved short-term psychiatric specialty hospitals for district 3 are or will be located in the southern subdistrict; there are no specialty hospitals located or approved for the northern subdistrict. The Petitioner is the closest specialty hospital to the northern district. There is insufficient need for the Petitioner's proposal in the southern subdistrict of district 3 under the district health plan. Until December, 1985, or early 1986, the Respondent's policy and practice was to apply the need formula of Rule 10-5.11(25)(d), Florida Administrative Code, on a district-wide basis, not on a subdistrict basis. In approximately December, 1985, or early 1986, the Respondent implemented a new policy of reviewing the need for proposed short-term psychiatric services on a subdistrict basis in the applicable district health plan recognized subdistricts. This new policy was based upon a new interpretation of existing statutes and rules. Specifically, the Respondent relied upon Rule 10-5.011(1), Florida Administrative Code, and Section 381.494(6)(c)1, Florida Statutes, which direct an evaluation of the relationship between proposed services and the applicable district health plan in reviewing certificate of need applications. The evidence failed to prove: (a,) when the policy was formulated; (b) who was responsible for the formulation and implementation of the policy; and (c) whether any sort of investigation, study or analysis was performed or relied upon in connection with the policy. The effect of this policy can be outcome-determinative in that it can cause an application for a certificate of need to be denied. Prior to the adoption of the policy, the Respondent Promulgated Rule 10-17, Florida Administrative Code, which Provided for sudistricting of district This rule was repealed. Geographic Access. A small portion of the population of district 3 is within a maximum travel time of 45 minutes from the Petitioner's facility. Only 36 percent of the district 3 population is within 45 minutes driving time from the Petitioner's facility. The Petitioner's facility is located near the center of district 3. Approximately 60 percent of the population of district 3 is located within 60 minutes travel time from Ocala. There are excellent transportation routes from parts of the northern subdistrict to Ocala, including Interstate Highway 75 and U.S Highways 27, 301 and 441. Approximately 73 percent of the Petitioner's Patients during its first year of operation came from the southern subdistrict. Of those Patients, approximately 58 percent were from Marion County and 15 percent were from other southern subdistrict counties, including 10.5 percent from Citrus County and none from Hernando County. Approximately 15 percent of the Petitioner's patients during its first year of operation came from the northern subdistrict: 8 percent from Alachua County, 1.7 percent from Putnam, 1.2 percent from Bradford, .2 percent from Union, Suwannee and Gilchrist, .7 percent from Columbia and none from Hamilton, Lafayette, and Dixie. Approximately 12 percent of the Petitioner's patients during its first year of operation came from outside of district 3. Other Factors Approximately 16 percent to 17 percent of Marion County's population was 65 years of age or older in 1980. By 1990, the 65 and older population is projected to increase to approximately 22 percent. Approximately 28 percent of the population of the southern subdistrict is projected to be 65 or older in 1990. Top of the World, a retirement community, is being developed 10 to 15 miles from the Petitioner's present location. There is a large population of females aged 18 to 30 attending the University of Florida. The University is located in Gainesville which is within a 40 to 50 minute drive time from the Petitioner's present location. There are over 83,000 females aged 15-44 residing in Alachua and Marion Counties. Young adult females have the highest incidence of eating disorders such as bulimia and anorexia. From a clinical and programmatic perspective, to provide optimal therapy for geriatric and eating disorder patients: (1) the patients should be separated from the general psychiatric population; (2) the staff should be specially trained to deal with the unique problems posed by the two types of patients; and (3) the program and physical surroundings should be specially designed to accommodate the needs of the patients and to facilitate the rendition of services to patients. The Petitioner represented in its application that the Petitioner has a 16-bed geriatric program. Munroe Regional and Marion-Citrus Mental Health Center and Lake/Sumter Mental Health Supported the Petitioner's original application for its present facility based in part on the Petitioner's representation that 16 beds would be designated as geriatric beds. A facility for Citrus County with 51 beds has been approved which will have a gerontology program. In Hernando County 35 beds have been approved which includes a gerontology program. Seven letters of Support were submitted with the Petitioner's application. Only one of those letters mentions geriatric beds. No mention of an alleged need to provide an eating disorder program was mentioned by the Petitioner in its application. Eating disorder patients are treated at Shands in Gainesville, Alachua County, Florida. There are no existing or approved Specialized geriatric or eating disorder programs in district 3. The Petitioner Should be able to recruit physicians and other medical professionals to staff its proposed programs. ECONOMIC ACCESS. The Petitioner's admissions criteria include the ability to pay. The Petitioner has projected that 1.5 percent of patient revenues from the operation of the 24 additional beds will be attributable to indigent care. This amount is low. Applicants generally propose 3 to 7 percent indigent care. Generally, Short-term psychiatric Services are accessible to all residents of district 3. The evidence failed to prove, however, that short-term psychiatric Services in specialty hospitals are readily accessible to indigent residents. Munroe Regional Medical Center and Lake/Sumter County Mental Health provide psychiatric services to indigents. Lake/Sumter was recently granted a certificate of need authorizing it to move to Leesburg and to expand its hospital to include 33 short-term psychiatric beds which will be devoted almost exclusively to the treatment of indigents. These facilities are not specialty hospitals, however. The Petitioner's projected care of indigents does not include free evaluations and assessments provided at the Petitioner's counseling centers. In light of the fact that the Petitioner takes into account the ability to pay, however, this service will not significantly increase the care provided to indigent patients or accessibility of services to indigents. During the Petitioner's first year of operation it provided indigent care of approximately 4 percent of total revenues. It is therefore likely that the Petitioner will exceed its projected 1.5 percent indigent care. The Petitioner did not prove how much of an increase can be expected, however. The Petitioner has a corporate policy never to deny admission to a patient in need of emergency treatment because of inability to pay. The Petitioner's proposal will not significantly enhance services available to indigents. FINANCIAL FEASIBILITY AND IMPACT ON COSTS. 8O. If the Petitioner's proposal is considered based upon the need for additional beds in the district, it will be financially feasible. Its projected patient day projections are reasonable based upon district-wide need. If need is determined only on a district-wide basis, the opening of approved beds will not negatively affect the Petitioner's referral patterns or patient base. If need is determined only on a district-wide basis, the cost of psychiatric services in district 3 will not be negatively impacted by the Petitioner's proposal. If need is determined on a subdistrict basis, the Petitioner's proposal will not be financially feasible. There is insufficient need in the southern subdistrict for the Petitioner to achieve its patient day projections on a subdistrict basis. Planning Guideline 6 of the District III Health Plan provides: Providers proposing to expand or establish new psychiatric facilities should document that these services will not duplicate or negatively affect existing programs in the region. In light of the existence of an excess of 57 short-term psychiatric beds for the southern subdistrict based upon a subdistrict allocation of bed need, the Petitioner's proposed new beds will duplicate beds in existence or approved beds. If need is determined on a subdistrict basis, the cost of psychiatric services in the southern subdistrict will be negatively impacted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for the addition of 24 short- term psychiatric beds be approved. DONE and ORDERED this 13th day of March, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1987. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ". Petitioner's Proposed Findings of Fact: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 7, 9-10 and 12. 2 RO 13-14. 3 RO 13 and 16. 4 RO 17. 5 RO 51. 6 RO 54 and 61. 7 RO 54. 8-10 Irrelevant. 11 RO 58-59. 12 RO 59. 13 The first sentence is accepted in RO 60. The second sentence is irrelevant. 14 RO 61-63. 15 Irrelevant. 16 RO 20 and 22. 17 RO 43. 18 RO 19. 19 RO 19-21. 20 RO 23. 21 RO 24. 22 RO 28. The last sentence is irrelevant. 23 RO 1, 9-10 and 12. 24 Irrelevant. It has been stipulated that the quality of care criterion has been met. 25 RO 64. 26 RO 71. The first sentence is accepted in RO 70. The second sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 29-30 Irrelevant. 31 RO 55-56. 32 RO 74. RO 75. The last sentence is not supported by the weight of the evidence. RO 73 and 76. The Petitioner did not commit to provide 1.5 percent of total revenues it committed to provide 1.5 percent of revenues from the 24 beds. The last sentence is irrelevant. 35 RO 77. 36 RO 78. 37 Not supported by the weight of the evidence. 38-39 and 41 If need is determined on a district- wide basis these proposed findings of fact are true. If, however, need is determined on a subdistrict basis these proposed findings of fact are not supported by the weight of the evidence. See RO 80 and 83. 40 Irrelevant. 42-44 Cumulative. See RO 80 and 83. 45 and 46 Not supported by the weight of the evidence. 47-48 Irrelevant. If need is determined on a district-wide basis these proposed findings of fact are true. If, however, need is determined on a subdistrict basis these proposed findings of fact are not supported by the weight of the evidence. See RO 82 and 85. Irrelevant. The first sentence is statement of the law. The last sentence is irrelevant. This is a de novo proceeding. How the Respondent reached its initial decision is irrelevant. The rest of the proposed finding of fact is accepted in RO 50. Statement of law. 52 RO 45. 53 RO 46. 54 RO 47. 55 Irrelevant. 56 RO 48. 57 RO 49. Irrelevant. Conclusion of law. Irrelevant. 61-62 Prehearing Stipulation. Irrelevant. The parties have stipulated that the portion of the rule mentioned in the first sentence is met. The proposed finding of fact is also a discussion of law. It is therefore rejected. 65-67 Consideration of the state health plan is statutorily required. The Respondent does not apply the occupancy standard of the state health plan as a matter of policy, therefore. These proposed findings of fact are therefore irrelevant to the extent that they apply to the determination concerning the state health plan. To the extent that they pertain to the occupancy standard of the district health plan, they are hereby adopted. Conclusion of law. Irrelevant. The first sentence is irrelevant. The second sentence is contained in the Prehearing Stipulation as a stipulated fact. 71 RO 30. 72 Irrelevant and conclusion of law. 73-82 Irrelevant. Respondent's Proposed Findings of Fact 1 RO 1, 3-4, 9 and 11 2 RO 7 and 13. 3 RO 19. 4-6 Prehearing Stipulation. 7 8 and 9 RO 26. RO 27-28. The last sentence is 10 contrary to the facts stipulated to by the parties. The parties have stipulated that existing beds meet the occupancy standard. This proposed finding of fact is therefore unnecessary. RO 29. 11 RO 30 and 32-33. 12 RO 31. 13 RO 16 and 36. 14 RO 34. 15 RO 37-41. There are 84 licensed beds not 81. 16-17 Irrelevant. 18 RO 55-56. The evidence established that "at least" 73 percent of the Petitioner's patients originate from the southern subdistrict not that more than 73 percent. 19 RO 43. 20 Hereby accepted. 21 RO 51. RO 10 and 64. The first sentence is accepted in RO 65. The rest of the proposed finding of fact is uncorroborated hearsay. 24 RO 67. RO 12 and 68. Irrelevant or based upon uncorroborated hearsay. Not a finding of fact. Not supported by the weight of the evidence. 29 RO 84-85. 30 Statement of law. 31 RO 72-73. 32 RO 85. 33 RO 83. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandra Stockwell, Esquire Culpepper, Pelham, Turner & Mannheimer 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302-3300 J. Kevin Buster, Esquire Ross O. Silverman, Esquire King & Spalding 2500 Trust Company Tower Atlanta, Georgia 30303
The Issue The issue is whether the Petitioner, Wellington Regional Medical Center, Inc., meets the criteria for approval of CON application number 9253 to convert 16 substance abuse beds to a seven-bed or ten-bed Level II neonatal intensive care unit.
Findings Of Fact The Agency for Health Care Administration (AHCA) administers the certificate of need (CON) program for health care facilities and services in the state of Florida. Wellington Regional Medical Center, Inc. (Wellington or WRMC) is a 120-bed community-based hospital, with 104 acute care and 16 substance beds. In September 1999, Wellington applied for CON Number 9253 to convert the 16 substance abuse beds into a ten-bed Level II neonatal intensive care unit (NICU). Currently, Wellington transfers newborns requiring Level II care to St. Mary's Hospital, in West Palm Beach, approximately 45 minutes away. The St. Mary's transport team can arrive as quickly as 20 to 30 minutes, but has taken up to four hours to pick up the babies. AHCA reviewed and denied Wellington's application, based on an absence of need in District 9 under criteria applicable to both normal and not normal circumstances, and the absence of any demonstrated problems for patients in getting access to Level II NICU care. For the January 2002 planning horizon used for applications which were, like Wellington's, filed in September 1999, AHCA published a numerical need for zero additional Level II NICU beds in AHCA District 9. The methodology used by AHCA to calculate numeric need, factoring in the existing inventory of 70 licensed and 20 approved beds, and applying the objective for 80 percent district-wide occupancy, resulted in a numeric need for a negative 32 beds. In other words, in District 9, there is a surplus of 32 Level II NICU beds, based on the formula established in AHCA's rules. The NICU II occupancy rate for 1998 was approximately 66 percent in District 9. In the absence of numerical need, Wellington applied for CON approval based on not normal circumstances, and contends it met, on balance, the requirements of the applicable criteria. 59C-1.042(6) - birth volume In Rule 59C-1.042(6), Florida Administrative Code, a not normal circumstance based on minimum birth volume is set forth, in pertinent part, as follows: Hospitals applying for Level II neonatal intensive care 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. For this application cycle, the fixed need pool was published in July 1999; therefore, calendar year 1998 is the time period for determining birth volume. In 1998, there were 909 live births at Wellington. In 1999, live births at Wellington increased to 1,101, and, in the 12 months prior to the hearing, to 1,152. AHCA permits applicants to use the most recent data in cases involving not normal circumstances. Currently, approximately 100 live births a month occur at Wellington, which justifies the projection of 1,238 total live births for the year 2000. The current level of live births achieved at Wellington, over 1,000, is equaled or exceeded at fewer than 70 of over 200 hospitals in Florida. For the period ending June 30, 1999, 53 of the 70 hospitals also exceeded 1,200 live births. Of the 53 hospitals with over 1,200 live births annually, 48 had Level II NICUs. Six hospitals in Florida range between 1,200 and 1,499 live births a year; five have Level II NICU. 59C-1.042(5) - minimum ten-bed unit size AHCA's CON reviewer testified that she believed that AHCA had only deviated from the ten-bed minimum unit once, for CON Number 9243 to North Collier Hospital, a Medicaid disproportionate share hospital with over 2,000 live births. She also testified that, even though the applicant showed the required occupancy level in fewer than ten beds, CON approval for a ten-bed unit was awarded to Boca Raton Community Hospital (Boca Raton), in part, based on its large number of live births. By contrast, according to the chart on page 19 in AHCA's Exhibit 2, four of the seven Level II NICU providers in District 9 operated fewer than 10 beds at the time Wellington's application was approved. Apparently, unlike in the case of the Boca Raton application, AHCA held Wellington to the requirement of showing that it could reach 80 percent occupancy in the beds, although AHCA's expert health planner testified that the standard was a "benchmark," not an absolute bar to approval. In general, 1.1 Level II NICU patient days result from each live birth. The ratio of 1.1 to 1, when applied to 80 percent occupancy in a ten-bed unit, results in a mathematical necessity for 2,920 patient days a year, or a project volume of at least 2,654 live births a year. The use of the 80 percent district-wide occupancy standard for normal circumstances as a facility-specific standard for not normal circumstances is unreasonable and conflicts with the minimum volume requirement of 1,000 live births in Rule 59C-1.042(6). AHCA's application of the 80 percent occupancy requirement to Wellington is inappropriate and inconsistent with the agency's prior action. For example, in this case, arguably the failure to meet the normal standard for district occupancy might justify requiring a higher than normal facility standard, but AHCA has not done so with any apparent consistency. Only four out of 57 Level II providers in Florida exceed 2,654, the number of live births necessary to achieve the equivalent of 80 percent occupancy in a ten-bed NICU, three of those exceed 3,000 live births a year, and the fourth is in the range between 2,500 to 2,999 live births a year. Applying the 80 percent test with a 1.1 to 1 ratio to project Level II patient days, the six most recently approved Level II NICU applicants fall short, with projected occupancies ranging from 30 to 40 percent. 59C-1.042(8) - quality of care staffing standards Wellington provides obstetrical services in its Department of Maternal Health, also called the Center for Family Beginnings. Seven dedicated beds are used for labor, delivery, recovery, and postpartum care in that Department, with the frequent need to use overflow beds. Despite the screening of mothers prior to delivery to eliminate those whose babies are likely to need Level II or higher care, at least 25 percent of all expected normal deliveries develop into high risk problems. Wellington is already equipped to handle these unexpected, high risk babies, as it must do prior to transferring them. Wellington also provides follow-up care to high risk babies as a result of their agreement with St. Mary's to allow "back transferring" of stabilized babies. Wellington has a neonatologist-perinatologist on call 24 hours a day. It has neonatal intensive care nurses with Level II and Level III experience on staff 24 hours a day. AHCA questioned the adequacy of the staffing proposed in the CON application because a medical director and respiratory therapists are not explicitly listed on Schedule 6. The medical director will be the same neonatologist- perinatologist who is currently on staff and who will continue to receive professional fees for services, but will not be a hospital employee. That arrangement is explained in the notes to Schedule 6. Similarly, the category "Other Ancillary," Wellington explained in the assumptions to Schedule 6, includes two full-time equivalent staff positions for respiratory therapists. Wellington has on staff two perinatologists, who are doctors specializing in high risk maternal-fetal medical care. One of them moved to Wellington when another NICU program in the County was closed. See Findings of Fact 26. 59C-1.030(2) - health care access criteria Rule 59C-1.030(2), Florida Administrative Code, requires consideration of criteria related to the need for the services proposed and the expected accessibility of the services for residents of the district. The criteria largely overlap with those in Subsections 408.035(1)(b), (d), and (f), and (2), Florida Statutes, which are also related to need and access. See Findings of Fact 20-25 below. In addition to more general need and access issues, the rule requires considerations of access for low income, minorities, and other medically underserved patients, including those receiving Federal financial assistance, Medicare, Medicaid, and indigent persons. The parties stipulated that related criteria in Subsection 408.035(1)(n) - evaluating the applicant's past and proposed Medicaid service - is met or not at issue, based on Wellington's commitment to provide 30 percent Medicaid in the NICU, and historical provision of 32.4 percent Medicaid in the obstetrics unit. By stipulating that the criteria are not at issue or are met in Subsection 408.035(1)(a) - need related to district health plan - the parties necessarily agreed that the local health plan requirement for a commitment to provide at least 30 percent Medicaid/Indigent patient days was met, and so, therefore, is the income accessibility concern of the Rule. Wellington addressed the Rule criterion for minority access to NICU services. The only Haitian doctor specializing in obstetrics and gynecology (OB/GYN) in Palm Beach County, who speaks fluent Spanish as well as Creole, delivers 99 percent of his patients' babies at Wellington. From 60 to 80 percent of his patients come from Lake Worth, most of whom are Haitians and Hispanics, including Gualemalans and Mexicans. Another OB/GYN group of four doctors, with privileges at four different hospitals, delivers 30 to 40 babies a month at Wellington, based on their preference for the care provided at Wellington. The only OB/GYN group in Palm Beach County, which has two affiliated perinatologists, both of whom are on staff at Wellington, serves large numbers of patients from Clewiston, Belle Glade, Pahokee, and Okeechobee. These areas are low income, farming communities located, in driving time, from 45 minutes to 1 1/2 hours west of Wellington. Even when predicted to have high risk births, mothers from the low income areas who are told to go to St. Mary's Hospital because it has a Level II NICU are approximately 70 percent non-compliant. St. Mary's is an additional 45-minute drive east of Wellington. 408.035(1)(b) - availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing facilities and services; (d) - availability and adequacy of alternatives, such as outpatient or home care; (e) - economics of joint, cooperative, or shared resources; (f) - need for services not reasonably and economically accessible in adjoining areas; and 408.035(2)(a), (b) and (c) - less costly, more efficient or more appropriate alternatives, such as existing inpatient facilities, sharing arrangements; and (d) - serious problems for patients to obtain care without proposed service. In addition to the absence of numeric need under normal circumstances, and the absence of the requisite birth volume which results from the imposition of the district occupancy standard to the hospital, AHCA also determined that Wellington failed to show any problems with patient access to like and existing facilities. Currently, there are 70 licensed and 20 approved Level II NICU beds in District 9. Overall, the occupancy rate for the District is approximately 66 percent. In addition, existing Level II NICU providers are located within two hours driving time for all residents of the district, as required for NICU which is classified as a tertiary service. Seven hospitals in District 9 provided Level II NICU care in 1998 to 1999. These included Lawnwood Regional Medical Center (Lawnwood) in St. Lucie County, Martin Memorial Medical Center (Martin Memorial) in Martin County, and Palm Beach Gardens Medical Center (Palm Beach Gardens) in Palm Beach County, West Boca Raton Hospital (West Boca), St. Mary's Hospital (St. Mary's), Good Samaritan Hospital (Good Samaritan), and Bethesda Memorial Hospital (Bethesda). In addition to the licensed beds, 20 approved beds had been allocated as follows: four for Good Samaritan, ten for Boca Raton Community Hospital, and six for West Boca. All of the existing Level II providers are located in eastern Palm Beach County along the Interstate 95 corridor. The population of Palm Beach County is migrating west. The Wellington community is experiencing significant growth. One indication is approval for the opening of five new schools in Wellington, three elementary, one middle, and a high school approximately 3 miles from the hospital. The number of new residential housing starts in Wellington has increased from 4,332 in 1990 to 6,012 in 1999. The housing starts in Wellington's primary service area represent over 48 percent of the total for Palm Beach County. Approximately 35,000 of the 80,000 women in Palm Beach County aged 35 to 44, who are more likely to have high risk pregnancies, live in the Wellington service area. Births at the three obstetrics providers in western Palm Beach County have increased from 1,441 in 1995 to 2,580 in 1999, including an approximately 200 percent increase at Wellington, from 345 in 1995 to 1,057 in 1999 (for the 12 months ending in August). Prior to October 1, 1999, the two closest hospitals to Wellington with Level II NICU services were Good Samaritan, with seven existing and four approved beds, and St. Mary's, with 22 beds. After Good Samaritan closed its obstetrics and NICU services, the two closest Level II NICU providers to Wellington are St. Mary's and West Boca, with nine licensed and six approved beds. For the 12-month period from July 1998 to June 1999, there were 3,832 NICU II patient days, or 149.98 percent occupancy in the seven operational beds at Good Samaritan; 5,743 patient days, or 71.52 percent in 22 beds at St. Mary's; and 3,210 patient days or 97.72 percent in the nine licensed beds at West Boca. With the closing of Good Samaritan, patients who were using its seven beds were assumed mostly likely to go to St. Mary's, which is owned by the same parent company. AHCA calculated a blended occupancy rate of 84.05 percent for St. Mary's with the addition of nine Good Samaritan beds (seven operational and two of four approved) to its existing 22 beds. Despite the high occupancy in the nearest facilities, the others in the District were relatively low for the same period of time: 39.15 percent in ten Level II NICU beds at Lawnwood, 8.38 percent in five beds at Martin Memorial, 19.23 percent in five beds at Palm Beach Gardens, and 50.46 percent in 12 beds at Bethesda. - immediate or long-term financial feasibility, as related to utilization AHCA rejected Wellington's projection of the volume of babies it would receive as Level II transfers from Glades General Hospital and Palms West Hospital. For the year ending August 1999, there were 737 live births at Glades General and 786 at Palms West. From that, Wellington projected 797 births at Glades General and 850 at Palms West in 2002. From that, Wellington expects to receive 231 transfers from Glades General and 197 from Palms West. The projections are based on historical birth to patient day ratios for the County, reasonable projections of volume, and reasonable market share assumptions. AHCA accepted Wellington's projections of its internal birth volume, which was 1,714 live births by January 31, 2000, resulting in a range between 1,192 and 1,834 Level II days. Based on the reasonableness of the expected transfers and the undisputed reasonableness of internal birth projections, Wellington demonstrated that it will achieve 73.5 percent occupancy in a ten-bed unit, or 75.2 percent in a seven-bed unit, by January 2003. As a result of reasonable utilization projections, as otherwise stipulated by the parties, the project is financially feasible. Factual Summary In general, Wellington demonstrated that the number of live births at Wellington, the closing of the nearest Level II provider, occupancy levels at nearby providers, the distances to other existing providers, particularly from various western areas of its service area, and the demographic and growth patterns within the County are not normal circumstances for the approval of its proposal. On balance, Wellington meets the criteria for approval for approval of CON Number 9253, to convert 16 substance abuse beds to a ten-bed Level II NICU.
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 issuing Certificate of Need Number 9253 to Wellington Regional Medical Center, Inc., to convert 16 substance abuse beds to 10 Level II neonatal intensive care beds. DONE AND ENTERED this 25th day of August, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2000. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Mark S. Thomas, Esquire Richard A. Patterson, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Robert D. Newell, Jr., Esquire Newell, Terry & Rigsby, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313
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 At issue in this proceeding is whether Memorial West should be issued CON 7249 to establish a 10-bed Level II NICU program at its facility in southwest Broward County based on "not normal circumstances." Also at issue is whether the Intervenor, Plantation General Hospital, L.P., has sufficiently demonstrated standing, based on whether its existing NICU service will be substantially adversely affected if Memorial West's proposed project is approved.
Findings Of Fact The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the rulings on the exceptions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Plantation General Hospital, L.P. be dismissed as a party to these proceedings based upon its failure to demonstrate standing, and That Certificate of Need No. 7249 be granted to South Broward Hospital District, d/b/a Memorial Hospital West to establish a 10-bed Level II Neonatal Intensive Care Unit at its Pembroke Pines facility. DONE and ORDERED this 20th day of January, 1995, in Tallahassee, Florida. JAMES W. YORK 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 20th day of January, 1995.
