Findings Of Fact The parties' stipulation The parties have stipulated to the following facts: Forum and Amedex timely filed their respective letters of intent and applications with the Department and the District Local Health Council for the July 1986 batching cycle. The Department ultimately deemed the applications complete and, following review, published its notice of intent to deny the applications. Forum and Amedex each timely filed a petition requesting a formal hearing on the denial of their application. With regard to the Forum application, the Department contends that there is no need for the proposed facility, that such lack of need will render Forum's project financially unfeasible, that the project is not the best use of Forum's resources, and that Forum fails to meet the local health plan priority relating to the construction of freestanding facilities with a minimum capacity of 120 beds. All other statutory and rule criteria are satisfied, at least minimally, based on Forum's 60-bed proposal. With regard to the Amedex application, the Department contends that there is no need for the proposed facility, that such lack of need will render Amedex's project financially unfeasible, and that the project is not the best use of Amedex's resources. The Department further contends that Amedex has not demonstrated that it can provide quality of care, that it has not demonstrated that its project is financially feasible in the short or long term, that it has not provided long range plans and that, even assuming minimal need, the size of Amedex' proposed project will cause difficulty in meeting projected utilization needs based on Broward County's past utilization rates. All other statutory and rule criteria are satisfied, at least minimally, based on Amedex' 240-bed proposal. As between the applicants, they agree that a comparative review is appropriate to determine the best applicant. Further, they agree for purposes of this proceeding that the other meets all statutory and rule criteria, at least minimally, except the following: need beyond 60 beds, ability to provide quality of care, and availability of funds for project accomplishment and operation. The parties have further agreed that there are no special circumstances existent in this case upon which a certificate of need is being sought. The Amedex Proposal In July 1986 Amedex filed an application with the Department for a certificate of need to construct a 240-bed skilled and intermediate care nursing home in Broward County, Florida. The total project cost is projected to be $9,040,228. At hearing, Amedex failed to offer any competent proof to demonstrate the immediate and long-term financial feasibility of its proposed project, that it could provide quality care, or that it had available the necessary funds for project accomplishment and operation. 1/ While the Department contended that the proposed project was not the best use of Amedex's resources, it offered no proof to demonstrate what other health services would be a more appropriate use of the resources. The Forum Proposal In July 1986, Forum also filed an application with the Department for a certificate of need to construct a skilled and intermediate care nursing home in Broward County, Florida. Forum's application sought leave to construct a 60-bed facility. The estimated cost for construction of Forum's proposed nursing home is $2,39,800. Forum has the necessary resources for project accomplishment and operation. While the Department contended that the proposed project was not the best use of Forum's resources, it offered no proof to demonstrate what other health service would be a more appropriate use of such resources. Forum is a publicly held health services company which owns, develops, and operates retirement living centers and nursing homes on a national basis. Pertinent to this case, Forum proposes to develop a retirement living center in Broward County that would consist of 120 apartments for independent living, a 30-bed adult congregate living facility, and the proposed 60-bed skilled and intermediate care nursing home. Forum has packaged its centers to provide these three levels of service to meet the desires of retired persons they hope to attract to their retirement community. Each of the three components which comprise Forum's retirement living center are physically connected and share some operational functions, such as a central kitchen and heating plant. Such design provides for an efficient operation, as well as an economical distribution of costs facility wide. The nursing facility proposed by Forum would offer a wide range of services for its residents including: 24-hour skilled and intermediate nursing care, physical therapy services, and other restorative services. Additionally, Forum proposes to offer, as needed, subacute services such as: intravenous care, continuous bladder irrigation, oxygen therapy, nastrogastric tube feeding, ventilator care, insulin treatment, sterile dressing changes, and sterile care of tracheotomies. Forum also proposes to offer in the future, if need is identified and if any necessary agreements can be reached, respite care, adult day care, meals on wheels and hospice care. Forum proposes to seek medicare and medicaid certification, and will dedicate 25 of its beds to medicaid patients. Forum has a history of providing quality care at its existing facilities, and will provide quality care at the proposed facility. Forum has demonstrated the immediate and long term financial feasibility of its proposed project. Forum is a national company, with substantial experience in developing and operating nursing homes and retirement living centers. Due to the excellent growth potential in Broward County for retirement living centers, Forum should be able to capture a sufficient share of the nursing home market to render its proposed nursing home financially feasible. However, in view of the lack of numeric need for such facility as discussed infra, Forum's success will be to the detriment of existing and approved facilities. Numeric need The Department has established by rule the methodology whereby the need for community nursing home beds in a service district shall be determined. Rule 10-5.011(1)(k)2, Florida Administrative Code. The first step in calculating need pursuant to the rule methodology is to establish a "planning horizon." Subparagraph 2 of the rule provides: Need Methodology ... the Department will determine if there is a projected need for new or additional beds 3 years into the future according to the methodology specified under subparagraphs a. through i... The Department interprets subparagraph 2, and the applicants concur, as establishing a "planning horizon" in certificate of need proceedings calculated from the filing deadline for applications established by Department rule. This interpretation is consistent with the numeric methodology prescribed by subparagraph 2, and with the decision in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986). Applying the Department's interpretation to the facts of this case, establishes a "planning horizon" of July 1989. Pertinent to this case, subparagraphs 2 a-d provide the methodology for calculating gross bed need for the district/subdistrict (in this case the district and subdistrict are the same--Broward County) in the horizon year. The first step in the calculation of gross need for the horizon year is to derive "BA," the estimated bed rate for the population age-group 65-74. This rate is defined by subparagraph 2b as follows: BA = LB/ (POPC + (6 x POPD) Where: LB is the number of licensed community nursing home beds in the relevant district. POPC is the current population age 65-74 years. POPD is the current population age 75 years and over. The parties concur that the district licensed bed figure (LB) is calculated based on the number of licensed community nursing home beds as of June 1, 1986, and that there were 3,226 licensed beds in the district on that date. 2/ The parties do not, however, agree as to the date on which POPC and POPD should be derived. The formula mandated by the rule methodology for calculating BA requires that the "current population" for the two age groups be utilized. The rule does not, however, prescribe the date on which the "current population" is to be derived. Forum contends that the appropriate date to establish the "current population" for POPC and POPD is January 1, 1986. The Department contends that the appropriate date is the date of application. In the opinion of David Warner, which opinion is credited, the base for POPC and POPD should correspond to the period for which the average occupancy rate (OR) is calculated. For the July batching cycle, OR is based upon the occupancy rates of licensed facilities for the months of October through March preceding that cycle. January 1, 1986, as the midpoint of that date, is the appropriate date to derive POPC and POPD. Supportive of Dr. Warner's opinion are the past practices of the Department. Between December 1984 and December 1986, the Department routinely used a three and one half year spread between the base population period and the horizon date for "current population" in its semiannual nursing home census report and bed need allocation. That three and one half year spread was adopted by the Department for the same reasons expressed by Dr. Warner. In the batching cycle of January 1987, which cycle immediately followed the cycle at issue in this case, the Department utilized a three and one half year spread between the base population period and the horizon date for "current population" when it awarded beds in that cycle. The Department offered no explanation of why, in this case, it proposed to use a three year spread between the base population period and the horizon date for "current population" in calculating POPC and POPD. Application of the methodology prescribed by subparagraph 2b to the facts of this case produces the following calculation: BA = 3,226 / (158,878 + (6 x 110,217) BA = 3,226 / (158,878 + 661,302) BA = 3,226 / 820,180 BA = .0039332 The second step in the calculation of gross need for the horizon year is to derive "BB," the estimated bed rate for the population age group 75 and over. This methodology is defined by subparagraph 2c, and calculated in this case as follows: BB = 6 x BA BB = 6 x .0039332 BB = .0235992 The third step in the calculation of gross need for the horizon year is to derive "A," the district's "age-adjusted number of community nursing home beds" at the horizon year. This methodology is defined by subparagraph 2a as follows: A = (POPA x BA) + (POPB x BB) Where: POPA is the population age 65-74 years in the relevant departmental district projected three years into the future. POPB is the population age 75 years and older in the relevant departmental district projected three years into the future. The parties concur that POPA and POPB are, respectively, 165,533 and 128,250 for the horizon year. Accordingly, application of the methodology prescribed by subparagraph 2a produces the following calculation: A = (165,533 x .0039332) + (128,250 x .0235992) A = 651.07439 + 3,026.5974 A = 3,677.67 The final step in the calculation of gross need in the horizon year is to derive "SA," the "preliminary subdistrict allocation of community nursing home beds" (gross bed need in this case. 3/ This calculation is defined by subparagraph 2d as follows: SA = A x (LBD/LB) x (OR/.90) Where: LBD is the number of licensed community nursing home beds in the relevant subdistrict. OR is the average 6 month occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district. Occupancy rates established prior to the first batching cycle shall be based upon nursing home patient days for the months of July 1 through December 31; occupancy rates established prior to the second batching cycle shall be based upon nursing home patient days for the months of January 1 through June 30. The batching cycle in which these applications were filed occurred before the Department amended its rule to include the fixed need pool concept. Accordingly, the parties agree that the six month period on which the average occupancy rate is calculated is not as set forth in subparagraph 2d, but, rather is defined by former rule 10-5.11(21)(b)4 as follows: OR is the average occupancy rate for all licensed community nursing homes within the subdistrict of the relevant district. Review of applications submitted for the July batching cycle shall be based upon occupancy data for the months of October through March preceding that cycle... In Broward County (District X) LB and LBD are the same since the county has not been divided into subdistricts. Application of the foregoing methodology to the facts of this case produces a gross need in July 1989 of 3,453 beds, computed as follows: 4/ SA = 3,677.67 x (3226/3226) x (.845/.9) SA = 3,677.67 x 1 x .938888 SA = 3452.92 The net need calculation The final step in the numeric need methodology is to derive net reed from gross need. According to subparagraph 2i, this need is calculated as follows: The net bed need allocation for a subdistrict, which is the number of beds available for certificate of need approval, is determined by subtracting the total number of licensed and 90 percent of the approved beds within the relevant departmental sub- district from the bed allocation determined under subparagraphs 2.a. through f. Notably, former rule 10-5.11(21)(b)9 comports with the new rule in all material respects. While the rule requires that net need be calculated by subtracting "the total number of licensed and 90 percent of the approved beds" in the subdistrict from the gross need previously calculated, it is silent as to the date that inventory should be calculated. The Department asserts, through application of "policy," that the number of licensed beds should be calculated as of June 1, 1986 (the date established by former rule 10-5.11(21)(b)7 for calculating LB and LBD), and the number of approved beds as of December 1, 1986 (the date the Department's supervisory consultant signed the state agency action report). Forum would likewise calculate licensed beds as of June 1, 1986, but would also calculate approved beds as of that date. The Department offered no proof to expose and elucidate its policy choice. As discussed below, the dates used by the Department and Forum for purposes of calculating net need were facially unreasonable. 5/ The inventory of licensed and approved beds under subparagraph 2i, as well as former rule 10-5.11(21)(b)9, are inextricably linked. As approved beds are licensed, the approved bed inventory decreases and the licensed bed inventory increases. The Department's policy choice concerning the dates at which licensed and approved beds are to be counted is neither logical nor rational since it could result in some nursing home beds not being counted as either licensed or approved. For example, if beds were approved and not yet licensed in June 1, 1986, but licensed before the supervisory consultant signed the state agency action report (SAAR), they would not be counted in either inventory. Since the purpose of subparagraph 2i is to calculate a realistic estimate of the net bed need for the horizon year, it is appropriate to use the most current inventory of licensed and approved beds at the point a decision is rendered on an application. This assures, to the greatest extent possible, that the horizon population will not be over or underserved. In those circumstances where the SAAR becomes final agency action, the Department's approach of calculating inventory on the date the supervisory consultant signs the SAAR, assuming that inventory includes licensed and approved beds on that date, might be reasonable. However, where, as here, the SAAR constitutes only preliminary agency action, and a de novo review of the application is undertaken, there is no rational basis for subsuming that inventory. The rule methodology considered, the only rational conclusion is that net need be derived on the date of de novo review, and that it be calculated by reducing the gross need calculation by the inventory of licensed and approved beds, from previous batching cycles, existent on that date. As of the date of administrative hearing, there were 3,226 licensed beds and 695 approved beds in the district/subdistrict. Applying the methodology prescribed by subparagraph 2i to the facts of this case calculates a surplus of 399 community nursing home beds in the district for the June 1989 planning horizon. Consistency with State and local health plans The parties have stipulated that both proposals are consistent with the State and local health plans except for Forum's facial failure to comply with the local health plan priority relating to the construction of freestanding facilities with a minimum capacity of 120 beds. Pertinent to this issue, the local health plan provides: In addition to controlling capacity in order to discourage the construction of unneeded beds, the certificate of need program addresses cost containment by encouraging efficiencies in operation as a criteria to certificate of need approval. A number of operational models have historically proven to be positive influences on efficiency. Licensure laws, for instance, require nursing home staffing patterns to be structured in minimum modules of 30 bed configurations. As a result, the construction of nursing homes with beds totalling numbers not divisible by 30, has the capability of encouraging over staffing. Similarly, experience has shown that freestanding nursing homes constructed at less than 120 beds also are less cost efficient compared to larger facilities. Likewise, since construction and corresponding debt service retirement is greater for freestanding facilities than for new construction on existing facilities, expansion and conversion as an alternative to new construction frequently acts to reduce costs. The basis for the 120-bed minimum size for a "freestanding" facility in the local health plan is to insure efficiency and economy of scale. The 60- bed project proposed by Forum is not "freestanding" but is an integral part of a retirement center which also includes 120 independent living units and a 30-bed adult congregate living facility. Under the circumstances, the economies and efficiencies contemplated by the local health plan will be achieved, and Forum's proposal is consistent with such plan. The local health plan also provides, as a recommendation, that: ... applications for certificates of need to construct additional nursing home beds should be approved so as to support the State policy of 27 beds/1000 population over age 65 in Broward County. Considering the population over age 65 at the applicants' planning horizon, as well as the number of licensed and approved beds in the district, calculates a 14.36 beds/1000 population over age 65 for July 1989. Accordingly, the applicants' proposal is consistent with state and local health plans regarding bed to population ratio. Comparative Review As between the competing applicants, the proof demonstrates that Forum is the superior applicant, and that were the award of a certificate of need appropriate in this case that its application would be the one of choice. Under no circumstance does the proof support an award to Amedex, since it failed to demonstrate the immediate and long-term financial feasibility of its project, failed to demonstrate that it would provide quality care, and failed to demonstrate that it had sufficient resources for project accomplishment and operation. The criteria on balance In evaluating the applications of Amedex and Forum, none of the criteria established by Section 381.705, Florida Statutes (1987), or Rule 10- 5.011(k), Florida Administrative Code, have been overlooked. In the case of Amedex, the lack of need in the district, as well as its failure to demonstrate compliance with relevant criteria as discussed in paragraph 46, demonstrates that, on balance, its application should be denied. In the case of Forum, its application meets all relevant statutory and rule criteria except need. Need is the key criteria in the instant case. Forum's failure to satisfy that criterion by proof of numeric need or special circumstances is dispositive of its application for licensure, and such failure is not outweighed by any other, or combination of any other, criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the applications for certificate of need filed by Amedex and Forum be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February, 1988. WILLIAM J. KENDRICK 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 25th day of February, 1988.
The Issue The issue is whether Petitioner, Melvin Alston, is entitled to insurance coverage under the State of Florida Health Plan for services received at Miracle Hill Nursing Home.
Findings Of Fact Doris Alston, widow of Melvin Alston, is requesting payment for services rendered to Melvin Alston at Miracle Hill Nursing Home. Melvin Alston died on December 31, 1985. Melvin Alston, as a retired state employee, became eligible for coverage under the State Health Plan on July 1, 1985. He was a professor and dean at Florida A&M University from 1946 until 1969, when he retired. Thereafter he became a professor at Southern Illinois University, from which he retired in 1976. Alston was admitted to Tallahassee Memorial Regional Medical Center (TMRMC) in September, 1984, and was transferred to the extended care unit on September 20, 1984, because there were no available nursing home beds. On October 31, 1984, a bed became available at Goodwood Manor, a skilled nursing home facility, and Alston was admitted to Goodwood Manor from the TMRMC extended care unit. Alston remained at Goodwood Manor until August 22, 1985, when Mrs. Alston removed him and placed him at Miracle Hill Nursing Home. While at Goodwood Manor, Alston was receiving essentially custodial care. He had a routine diet and simply needed assistance with his activities of daily living, such as bathing and feeding. He was able to take his medications as they were given to him and he could leave the nursing home on a pass basis. While at Goodwood, Alston's medical orders were reviewed monthly and he was not seen daily by a physician. Alston received the same level of care at Miracle Hill Nursing Home. In skilled nursing facilities, the range of services needed and provided goes from skilled through intermediate levels to custodial. Skilled care includes such services as injections or intravenous medications on a daily basis which must be administered by a nurse. Dr. C. E. Richardson became Alston's physician at Miracle Hill Nursing Home. In the course of his deposition, Dr. Richardson testified that Alston received medical level care at Miracle Hill. However, Dr. Richardson stated several times that he did not know the level of care given to Alston under the definitions of the care levels available. He acknowledged that the levels of care ranged from skilled to custodial. Dr. Richardson also did not know the terms of the benefit document for the State Health Plan. Dr. Richardson only provided the medical care, which was the same no matter what level of nursing care he needed or received. According to Dr. Richardson, Alston was on a fairly routine diet, could engage in activities as tolerated, and could go out on a pass at will. One of Dr. Richardson's orders dated 11/27/85 shows that Dr. Richardson did not order a skilled level of care, but instead checked the level of care to be intermediate. Alston did not receive or need skilled nursing care at Miracle Hill. It is more appropriate to classify the level of care as custodial, as that term is defined in the State Health Plan Benefit Document. Alston's primary insurer was Blue Cross/Blue Shield of Illinois, based on coverage he had from his employment there. Blue Cross/Blue Shield of Illinois denied the claim for services at Miracle Hill because the services were custodial and were not covered by that plan. It also denied the claim because Miracle Hill's services did not fit its criteria for skilled nursing care. William Seaton is a State Benefits Analyst with the Department of Administration and his duties include assisting people who have a problem with the settlement of a claim with Blue Cross/Blue Shield of Florida, which administers the State Health Plan. After the claim was denied by Blue Cross/Blue Shield of Illinois, Mr. Seaton assisted Mrs. Alston by filing a claim under the State Health Plan. Blue Cross/Blue Shield of Florida concluded that no benefits were payable for facility charges at a nursing home and that an extended care or skilled nursing facilities would have limited coverage; however, because Alston was not transferred to Miracle Hill directly from an acute care hospital, no coverage existed. The pertinent provisions of the benefit document of the State Health Plan are as follows: I.G. "Custodial Care" means care which does not require skilled nursing care or rehabilitative services and is designed solely to assist the insured with the activities of daily living, such as: help in walking, getting in and out of bed, bathing, dressing, eating, and taking medications. * * * I.N. "Hospital", means a licensed institution engaged in providing medical care and treatment to a patient as a result of illness or accident on an inpatient/outpatient basis . . . and which fully meets all the tests set forth in ., 2., and 3. below: . . . In no event, however, shall such term include . . . an institution or part thereof which is used principally as a nursing home or rest for care and treatment of the aged. * * * I.AH. "Skilled Nursing Care" means care which is furnished . . . to achieve the medically desired result and to insure the insured's safety. Skilled nursing care may be the rendering of direct care, when the ability to provide the service requires specialized (professional) training; or observation and assessment of the insured's medical needs; or supervision of a medical treatment plan involving multiple services where specialized health care knowledge must be applied in order to attain the desired medical results. * * * I.AI. "Skilled Nursing Facility" means a licensed institution, or a distinct part of a hospital, primarily engaged in providing to inpatients: skilled nursing care . . . or rehabilitation services . . . and other medically necessary related health services. Such care or services shall not include: the type of care which is considered custodial . . . . * * * II.E. Covered Skilled Nursing Facility Services. On or after August 1, 1984, when an insured is transferred from a hospital to a skilled nursing facility, the Plan will pay 80% of the charge for skilled nursing care . . . subject to the following: The insured must have been hospital confined for three consecutive days prior to the day of discharge before being transferred to a skilled nursing facility; Transfer to a skilled nursing facility is because the insured requires skilled care for a condition . . . which was treated in the hospital; The insured must be admitted to the skilled nursing facility immediately following discharge from the hospital; A physician must certify the need for skilled nursing care . . . and the insured must receive such care or services on a daily basis; . . . 6. Payment of services and supplies is limited to sixty (60) days of confinement per calendar year. * * * VII. No payment shall be made under the Plan for the following: * * * L. Services and supplies provided by . . . a skilled nursing facility or an institution or part thereof which is used principally as a nursing home or rest facility for care and treatment of the aged. * * * N. any services in connection with custodial care . . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying the request for benefits for services rendered to Melvin Alston at Miracle Hill Nursing Home. DONE AND ENTERED this 24th day of May, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-4674 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Melvin Alston 1 . Proposed findings of fact 1-3 and 5 are rejected as being subordinate to the facts actually found in this Recommended Order. Additionally, proposed findings of fact 3 and 5 contain argument which is rejected. 2. Proposed finding of fact 4 is irrelevant to the resolution of this matter. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(2); 6(11); 8(11); 9(12); 10(3 & 4); 11(5); 12(4); 14(5); 15(7); 19- 21(8 & 9) 23(13); and 24(13). Proposed findings of fact 2, 3, and 16 are unnecessary. Proposed findings of fact 7, 13, 18, 26, and 27 are rejected as being irrelevant. Proposed findings of fact 17 and 22 are subordinate to the facts actually found in the Recommended Order. 2. Proposed finding of fact 25 is unsupported by the competent, substantial evidence. COPIES FURNISHED: James C. Mahorner Attorney-at-Law P. O. Box 682 Tallahassee, Florida 32301 Andrea Bateman Attorney-at-Law Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue In their Prehearing Stipulation the original parties described the background and general nature of the controversy as follows: In January, 1985, HCR filed an application for certificate of need to develop a new 120 bed nursing home in Collier County, Florida. By notice dated June 28, 1985, HRS stated its intention to deny HCR's application. HCR timely filed a request for formal administrative proceeding, and the proceeding was forwarded to the Division of Administrative Hearings. By application supplement dated May 15, 1986, HCR has reduced this application to a 90-bed new nursing home. The nursing home will provide skilled nursing care to Alzheimer's patients and to patients discharged from hospitals in need of additional intensive nursing care, in addition to the typical nursing home patient. HRS has denied HCR's application because, pursuant to Rule 10-5.11(21), Florida Administrative Code there is insufficient need for the additional nursing home beds proposed by HCR. In the Prehearing Statement the Petitioner described its position as follows: HCR contends that there is an identifiable need for a nursing home in Collier County, Florida, to serve the needs of patients who suffer from Alzheimer's disease and similar disorders and patients who are discharged from hospitals with a continuing need for a high level of intensive care, often provided through sophisticated technical or mechanical means. Existing nursing homes in Collier County do not offer adequate facilities for such patients and refuse admission to such patients. These patients have experienced an inability to obtain such care in Collier County. HCR's proposed nursing home will provide needed care which is otherwise unavailable and inaccessible in Collier County. The application meets all criteria relevant to approval of a certificate of need. HCR further contends that the nursing home formula shows a need for additional nursing home beds in Collier County. Previously, in circumstances where a need for additional nursing home services has been identified, HRS has approved certificates of need even though the nursing home formula showed a need for zero additional beds or a small number of additional beds. In the Prehearing Statement the Respondent described its position as follows: HRS contends, pursuant to the formula contained in Rule 10-5.11(21), Florida Administrative Code, that there is insufficient need in the January, 1988 planning horizon demonstrated for additional nursing home beds in Collier County to warrant approval of a-new nursing home. Therefore, HRS contends that the HCR application should be denied. Further in its original application, HCR did not identify services proposed specially for Alzheimer's disease patients or "sub-acute" patients. HCR did not and has not complied with provision of Chapter 10-5.11(21)(b 10., Florida Administrative Code, regarding mitigated circumstances. The Respondent also identified the following as an issue of fact to be litigated. "HRS contends that it should be determined whether HCR's supplement dated May 15, 1986, is a significant change in scope for which the application was originally submitted." Because of its late intervention into this case, the Intervenor's position is not described in the Prehearing Statement. In general, the Intervenor urges denial of the application on the same grounds as those advanced by the Respondent. The Intervenor did not attempt to become a party to this case until the morning of the second day of the formal hearing. Respondent had no objection to the Petition To Intervene. The original Petitioner objected on the grounds that the effort at intervention was untimely and that the Intervenor was without standing. The objection to intervention was overruled and the Intervenor was granted party status subject to taking the case as it found it. Accordingly, intervention having been granted at the conclusion of the evidentiary presentation of the other parties, the Intervenor was not permitted to call any witnesses or offer any exhibits. Intervenor's participation before the Division of Administrative Hearings was limited to an opportunity to file proposed findings of fact and conclusions of law. Following the hearing a transcript of proceedings was filed on July 8, 1986. Thereafter, all parties filed Proposed Recommended Orders containing proposed findings of fact. Careful consideration has been given to all of the Proposed Recommended Orders in the formulation of this Recommended Order. A specific ruling on all proposed findings of fact proposed by all parties is contained in the Appendix which is attached to and incorporated into this Recommended Order. The Petitioner also filed an unopposed post-hearing motion requesting that its name be corrected in the style of this case. The motion is granted.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings based on admitted facts The parties agree that HCR properly filed a letter of intent and application for certificate of need for a new nursing home to be located in Collier County. The application was reviewed by HRS in the ordinary course of its activities, and HRS initially denied the application. HRS continues to oppose issuance of a CON because (a) there is an insufficient need, pursuant to Rule 10-5.11(21), Florida Administrative Code, for additional nursing home beds to warrant approval of a new nursing home [Section 381.494(6)(c)1., Florida Statutes]; (b) the long term financial feasibility and economic impact of the proposal is questionable because of low occupancy being experienced by existing nursing homes "Section 381.494(6)(c)9., Florida Statutes]. HRS proposes no other basis for denial of the application. The parties agree that HCR meets all criteria for a certificate of need, with the exception of those two criteria listed in the immediately foregoing paragraph relating to need and financial feasibility/economic impact (relevant to low occupancy), which HRS contends have not been met. The parties agree that HCR would provide good quality care to patients, that the project would be financially feasible if the occupancy projections asserted by HCR were obtained, that the costs and methods of proposed construction are appropriate and reasonable, and that the proposed facility would be adequately available to underserved population groups. The rest of the findings In January 1985, HCR filed an application for a certificate of need to develop a new 120-bed nursing home facility in Collier County, Florida. The original application described a traditional approach to nursing home care. By notice dated June 28, 1985, HRS stated its intention to deny HCR's application. HCR timely filed a request for formal administrative proceedings and this proceeding ensued. By application supplement dated May 15, 1986, HCR made certain changes to its original application. These changes included reducing the size of the proposed nursing home from 120 to go beds and changing the-concept of the nursing home from a traditional nursing home to one specifically designed to address the treatment of Alzheimer's disease patients and sub-acute care patients. The supplement specifically provided that 30 of the 90 proposed beds would be "set aside to offer a therapeutic environment for patients with Alzheimer's or similar disorders." The project description in the original application contained no such provision. HCR's proposed facility would consist of 90 nursing home beds, 30 assisted living beds, and an adult day care facility located adjacent to the nursing home portion of the facility. Those portions of the facility relating to assisted living and adult day care do not require certificate of need review. The estimated cost of the portion of the project which requires certificate of need review is $3.5 million. HCR estimates that approximately 33 1/3 per cent of the patients in the facility will be Medicaid reimbursed. It is proposed that 30 of the 90 nursing home beds be designed and staffed specifically to provide care and treatment necessary to meet the special needs of certain patients who suffer from Alzheimer's disease and dementia and exhibit need for care different from that found in the typical nursing home. It is proposed that another 30-bed wing be staffed and equipped to provide sub-acute, high-tech services such as ventilator, I.V. therapy, pulmonary aids, tube feeding, hyperalimentation and other forms of care more intensive than those commonly found in a nursing home and necessary for the care of patients discharged from hospitals and patients in the last stages of Alzheimer's disease. The remaining 30-bed wing would be devoted to traditional nursing home care. HRS has adopted a rule which establishes a methodology for estimating the numeric need for additional nursing home beds within the Department's districts or subdistricts. This methodology is set out in Rule 10-5.11(21), Florida Administrative Code. This rule determines historic bed rates and projects those bed rates to a three-year planning horizon. Allocation to a subdistrict such as Collier County is adjusted by existing occupancy in the subdistrict and the subdistrict's percentage of beds in relationship to the total number of beds in the district. Additional beds normally are not authorized if there is no need for beds as calculated under the rule. HRS calculated need utilizing current population estimates for January 1986 and projected need for the population estimated for January 1988, arriving at a need of approximately 16 additional nursing home beds for the January 1988 planning horizon. HCR projected need to the January 1989 planning horizon and projected a numeric need of approximately 38 additional nursing home beds. There are no applicants for additional nursing home beds in the January 1989 planning horizon (batching cycle). Alzheimer's disease is a primary degenerative disease of the central nervous system which results in a breakdown of the nerve cells in the brain. The disease is progressive, in that it begins subtly, often with forgetfulness or simple personality changes, and ultimately results in death following a phase in which the patient is bedridden and totally dependent upon others for survival. The cause of the disease is not known. The disease is much more common in the older age groups and is very common in the southwest Florida area. (However, nothing in the evidence in this case suggests that Alzheimer's disease is more common in southwest Florida than in other parts of the state.) There is no known cure for Alzheimer's disease. Alzheimer's disease patients are characterized by such symptoms as memory loss, communication problems, difficulty understanding, confusion, disorientation, inability to recognize care givers, waking at night, wandering, inability to socialize appropriately, and incontinence. The progress of the disease can be divided into stages. During the initial stage, the patients will display forgetfulness and subtle personality changes. As the disease progresses, the patients encounter increasing difficulty performing more than simple tasks, tend to be more emotional, become more confused, encounter difficulty with concentration and retaining thoughts, and often display poor judgment and a denial of the significance of their actions. In the next stage, the patients begin to require assistance to survive. Forgetfulness and disorientation increase and wandering patients are often unable to find their way. The patients become incontinent, experience sleep disturbances, become restless at night, and wander during the day, leading to considerable family distraction and difficulties for the care givers. The patients encounter difficulty recognizing family members and often become paranoid and fearful of those family members within the house. violence and aggressive outbursts may occur. Finally, the patients progress to a stage in which they are totally inattentive to their features physical needs, requiring total care. These Patients are totally incontinent, experience frequent falls, develop seizures, and eventually become bedridden, going into a fetal position and becoming totally unable to provide any care for themselves. Traditionally, most nursing homes offer no special programs for patients who suffer from Alzheimer's disease and mix these patients with other patients in the nursing home. There is no nursing home in Collier County which provides program specifically designed for the treatment of Alzheimer's disease patients. The nearest nursing home where such care can be found is in Venice, some 92 miles from Naples. The total facility proposed by HCR is designed to provide a continum of care for Alzheimer's disease patients and their family care givers. The adult day care portion of the facility would enable family members to place Alzheimer's disease patients in day care for a portion of the day in order for the family care givers to maintain employment, perform normal household chores, and find relief from the extremely demanding task of constantly supervising and caring for an Alzheimer's disease victim. The adult day care portion of the facility would be designed and staffed to provide a therapeutic program for the Alzheimer's disease patient and the patient's family. The assisted living portion of the facility would allow an Alzheimer's disease patient in the early stages of the disease to live in an environment, with his or her spouse if desired, where immediate care and routine supervision at a level lower than that required by a nursing home patient would be provided. Thirty nursing home patient and who do not display those characteristics which are disruptive to non-Alzheimer's patients, such as wandering, combativeness, and incontinence. For those Alzheimer's patients who should not be mixed with other nursing home patients because of their disruptive routines and who require unique programs and facility design features to meet their specific needs, a 30-bed wing would be set aside. Finally, for Alzheimer's patients in the final stages of the disease who require total care and are bedridden, and for patients discharged from local hospitals who require high-tech services, a 30-bed wing designed, staffed and equipped to provide such services would be set aside. The facility would provide a high level of staffing to meet the demanding, personal care needs of Alzheimer's patients and would provide 24-hour nursing supervision in that portion of the facility dedicated to intensive services for the bedridden and high-tech patient. The design and equipment of the proposed facility are particularly addressed to the needs of Alzheimer's disease patients. Physically, the facility would allow patients freedom of movement both inside the facility and in an outside courtyard with porches, but the facility would be sufficiently secure to prevent the patient from wandering away from the facility. There would be amenities such as therapeutic kitchens which would allow patients still able to cook to do so. Fixtures in the facility would be designed so that the Alzheimer's disease patients could easily identify the functions of fixtures such as wastebaskets, toilets, and sinks. Features such as low frequency sound systems, lever door knobs, square instead of round tables, barrier-free doorways, special floor coverings, appropriate labeling, automatic bathroom lighting, and provisions for seating small groups of patients together would all provide the special care required by the Alzheimer's patient. The concept of a separate unit for Alzheimer's disease patients is a new one, growing out of increased medical awareness of the disease. The proposed unit would be a prototype for the Petitioner. There are four nursing homes in Collier County and 413 licensed nursing home beds. There are no approved but unlicensed nursing home beds in Collier County. At the time that HRS initially reviewed the HCR application, Collier County nursing homes were reporting an average occupancy of approximately 70 percent. At the time of the hearing, average occupancy of existing nursing home beds in Collier County was 83.5 per cent. Existing nursing home beds in Collier County are underutilized and there are a number of nursing home beds available to the public. Also there are available alternatives to nursing homes in Collier County. HCR has projected reaching 95 per cent occupancy within one year of opening. This projection seems overly optimistic and unwarranted by prior history, as only one existing facility has an occupancy rate that high. HCR's occupancy projections are based on assumptions that the future growth will be similar to that experienced between 7/1/85 and 12/1/85. But more recent data shows that growth has been decreasing and that there was no growth for the most recent period prior to the hearing. If projected occupancy is not met, projected revenues will not be realized, and projections of financial feasibility will not materialize. The record in this case does not contain evidence of patients' need for nursing home care documented by the attending physicians' plans of care or orders, assessments performed by the staff of the Department of Health and Rehabilitative Services, or equivalent assessments performed by attending physicians indicating need for nursing home care. The local health plan (Policy 1, priority 4) requires an occupancy level of at least 90 per cent before new nursing homes can be approved. The local health plan (Policy 1, priority 6) also provides, "No new community nursing home facility should be constructed having less than 60 beds. However, less than 60 beds may be approved as part of an established acute care hospital facility."
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order in this case denying the Petitioner's application for a certificate of need to construct either its original proposal or its supplemented proposal. DONE AND ENTERED this 14th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1986.
The Issue The issues under consideration are those associated with applications filed by the aforementioned private parties seeking certificates of need for skilled nursing home beds based on a fixed need pool of May, 1989, which identified 261 beds for the January, 1992 planning horizon. The beds are available in HRS District III. The applications are for: CON Action No. 5987 Inverness--20 beds; CON Action No. 5912 Suwannee--60 beds; CON Action No. 5913 McCoy-- 60 beds; CON Action No. 5962 Starke--120 or 60 beds; and CON Action N. 5905 Regency--120 beds.
Findings Of Fact Related to the May, 1989 batching cycle HRS has identified a need for 261 nursing home beds in District III. The applicants accept that determination of the pool of beds, that is to say no applicant has sought beds over and above the 261 beds identified by HRS. Further, the parties have expressed their agreement to allow Regency to be granted CON 5905 to construct a new nursing home facility in Lake County, Florida, which will have 120 beds. The written stipulation sets out the parties belief that all applicable criteria for obtaining a certificate of need as set out in Section 381.705, Florida Statutes, have been met. That stipulation is accepted, provided the following conditions are met in issuing the certificate of need: The annual resident population of the facility shall include at least 62% of Medicaid patient days. Two beds shall be dedicated to the care of Alzheimer and respite care residents. The facility shall be a one story design consisting of 43,000 square feet in size. Likewise, the parties have agreed to allow the issuance of CON 5987 to Inverness to add 20 community nursing beds to its existing facility in Inverness, Florida. That written stipulation points out the agreement by the parties concerning the Inverness compliance with all applicable criteria set out in Section 381.705, Florida Statutes as well as any implementing rules set forth in Chapter 10-5, Florida Administrative Code. The arrangement is one by which existing ACLF beds are converted to nursing home beds. That stipulation is accepted, upon condition that Inverness commit to provide a minimum of 75.2% of total patient days for Medicaid patients. The Inverness stipulation which reiterates Inverness' lack of opposition to the grant of a certificate of need to Regency also withdraws its opposition to McCoy, Starke and Suwannee. By the terms of the stipulation's 140 of the 261 beds in the pool are spoken for. This leaves for consideration the applications of Suwannee, Starke and McCoy. In the absence of subdistricting, District III is divided into seven planning areas. The planning areas are as established by the North Central Florida Health Planning Council, Inc. Planning Area l is constituted of Hamilton, Suwannee, Lafayette, Columbia, Union and Bradford counties. Suwannee intends to place its facility in Suwannee County. Starke intends to place its facility in Columbia County. The expansion of the McCoy facility would occur in Marion County which is the sole county in Planning Area 4. By resort to the North Central Florida Health Planning Council District III Health Plan preferences can be seen concerning the allocation of beds among the applicants within the various planning areas. A copy of that plan is HRS Exhibit No. 2. Under this scheme the McCoy application to add 60 additional nursing home beds to its existing facility in Marion County, Florida, is considered a third priority. A third priority would allow the addition of at least 60 beds and no more than 120 beds. The Suwannee and Starke applications are a fourth priority under the local plan which allows for an addition of up to 60 beds. The McCoy application as presented at hearing responds adequately to all applicable criteria set out in Section 381.705, Florida Statutes, to include the State Health Plan and District III Health Plan. McCoy holds a superior license rating at present and has a proposed capital expenditure for this project of $1,568,000. Taking into consideration the proposed allocation of beds set forth in the local health plan, the distance between the McCoy facility and the proposed facilities in Suwannee and Columbia counties by the applicants Suwannee and Starke and absent proof which clearly identifies that Suwannee and Starke are meaningful competitors against McCoy and its attempt to gain a certificate of need calling for expansion of its facility, the McCoy application should be granted. That grant should be conditioned upon a willingness to serve Alzheimer patients in the proposed 14 bed unit and the commitment to provide Medicaid at a 60% level as a minimum commitment. This arrangement would bring the total number of nursing home beds at McCoy to 120, a desirable number when considering economies of scale. What must be resolved by comparative analysis of the applications of Suwannee and Starke, is which of those competitors for 60 beds out of the 61 beds remaining in the pool should be granted a certificate of need, if any. Starke had noticed its intention to apply for 120 beds and made application for 120 beds and in the alternative for 60 beds. The decision to notice its intent to apply for 120 beds was not misleading nor inconsistent with HRS policy in a circumstance where the application was stated in the alternative for 120 beds or 60 beds. The significant point is that Starke explained its alternatives of 120 beds or 60 beds in detail in the course of the application. HRS perceives that the 120 bed notice of intent took into account a lesser number of beds being applied for on the due date for applications and that perception is reasonable. Suwannee noticed the intent to apply for 60 beds and applied for that many. Both Suwannee and Starke met all procedural requirements for consideration of their applications for nursing home beds. In determining the disposition of the 60 nursing home beds needed for Planning Area l within District III, it is noted that Suwannee and Columbia counties are contiguous. Columbia is east of Suwannee. While the main emphasis by these applicants is to serve the needs of residents within the two counties where the facilities would be located, given their contiguity there is a potential for either applicant to serve needs within both counties. Columbia county is the more populous county. However, in the two counties the age cohorts in the 65 and over group and 75 and over group are similar, especially in the 75 and over group. Occupancy rates in the existing nursing homes within the two counties are also similar. The J. Ralph Smith Health Center in Suwannee County has 107 existing beds and 54 beds approved. Those additional 54 beds were designated for residents of the Advent Christian Village exclusively; however, the residents of that village constitute part of the population base in Suwannee county. Therefore this limited utilization of that resource still benefits citizens within Suwannee county. Surrey Place in Suwannee county has 60 beds and the Suwannee Health Care Center has 120 beds with 60 more approved. The 60 additional beds may not be constructed in that the applicant failed to proceed to construction in the time contemplated by CON 3746 and may lose the beds. Columbia County has Tanglewood Care Center with 95 beds. It has Lake City Medical Center with 5 beds associated with a hospital. Palm Garden of Columbia has approval for 60 beds. On balance there would not appear to be an advantage to placing the 60 beds at issue in either Suwannee or Columbia counties when considering the population to be served, present occupancy rates for existing nursing bomes and geographic accessibility to the proposed nursing homes. Suwannee is a wholly owned subsidiary of Santa Fe Health Care, Inc. The parent corporation filed the application with the permission of Suwannee. The 60 bed nursing home facility is part of an overall project which includes the replacement of an existing 60 bed acute care hospital with a 30 bed acute care hospital. If the proposals are accepted the hospital and 60 bed nursing home would be located on a common parcel. HRS has granted CON 6179 to decertify 30 beds. The approved cost of the delicensure and establishment of the new hospital is $6,752,824. The nursing home component of this project is stated to cost $3,408,100 in the way of capital expenditures with an operating equity in the amount of $300,000. The overall health care delivery system contemplated in the hospital and nursing home project includes the replacement hospital, the new nursing home, an out patient diagnostic center, home health care, hospice and adult day care services. Suwannee has the financial backing of its parent corporation which owns a number of health care facilities including six hospitals, two health maintenance organizations and six other health related corporations. Both Suwannee and the parent corporation Santa Fe Health Care, Inc. are not for profit. The Santa Fe operations are in Florida and its hospital holdings include other rural hospitals in addition to Suwannee which is a rural hospital. Before filing the application for the 60 bed nursing home neither Suwannee nor the Santa Fe parent corporation had any involvement in long term health care delivery. Suwannee intends to serve the needs of Alzheimer patients and to provide services to persons needing subacute care. In its present hospital facility in Suwannee County it has 24 swing beds with which it serves patients needing subacute care and which beds are seen as an alternative to nursing home beds. That alternative has limited utility. Although swing beds may serve nursing home patients they are not an alternative for long term care in lieu of community nursing home beds. To the extent that Suwannee Hospital has tried to place patients in nursing homes needing a high level of skilled care, described as subacute care, it has experienced problems. Existing nursing homes in Suwannee County have not accepted the placement of those patients. It is unclear from the record what portion of subacute care needed in the service area will continue to be met in the hospital proper with the advent of delicensure of 30 beds. There was testimony to the affect that the hospital has the option to request swing beds in its remaining 30 bed hospital facility, but it has not been shown that the hospital will avail itself of that opportunity and through the use of the swing beds be able to render subacute care. The description by Suwannee of the subacute patients that it is contemplating serving through its nursing home are those who require a shorter stay in nursing facilities, who are said to have fragile medical condition and require intensive licensed nursing care. In the application, it states that the Medicare patients contemplated as being served by this prospective nursing home would be the principal users of the subacute care. There patients would have an average length of stay of 15 days with 12 patients per month being served. The Medicare per diem charge of $130 for the first year of operation is said to include the cost of care given to these patients who are said to be heavy users of subacute care. That per diem charge reflects ancillaries such as the various therapies as well. Having considered the explanation of this application, it is less than apparent what the difference would be between the subacute care services now being provided by the hospital in its swing beds and those contemplated by its nursing home application. In a similar vein, it is unclear what the distinction would be between the subacute care rendered in the proposed nursing home when contrasted with the subacute care being provided in swing beds that might be available in the 30 bed replacement hospital. If granted a certificate of need Suwannee is committed to serving AIDS patients. Suwannee intends to serve Medicaid patients and it projects a percentage of patient days attributable to Medicaid patients in the first two years of operation to approximate 73%. This is contrasted with experience statewide of 62%, within District III of 75% and within the planning area of 81%. Projected per diem rate for Medicaid reimbursement within the first year of operation is $68. The financial expert presented by Suwannee said that the applicant could charge as much as $10 to $12 more, making the Medicaid rate $78 to $80 per day. This increase contemplates raising the present caps on reimbursement. The record does not support increases in the caps of $10 to $12 in the relevant planning period. In the first year of operation the private room, private pay per diem rate at Suwannee reflects $97 as the charge and $80 as the charge for semiprivate room, private pay. This is as compared to $130 for Medicare per diem. Although it is unacceptable to charge more for Medicare than private pay, Schedule 12 within the application shows the inclusion of ancillaries for the Medicare patient and the exclusion of ancillaries for private pay. Under the circumstances it is difficult to tell whether the Medicare per diem charges exceed the private pay per diem charges as has been contended by Starke. The inclusion of the therapies as ancillary costs is shown on page 39 at Schedule 12 of the application of Suwannee. On Schedule 17 in the first operating year the therapies as ancillary costs are not broken out as individual items such as physical therapy, speech therapy and occupational therapy separate and apart from routine services. Instead an aggregate figure is given. That precludes an understanding of what portion of the per diem charge for Medicare patients is attributable to those ancillary costs. The circumstance is made more bewildering in that the financial expert presented by Suwannee stated that the $130 per diem charge had application to residents who were receiving subacute care. What portion of the per diem charge for Medicare residents is attributable to the subacute care component is not revealed in the application. Neither, is it explained in the testimony. Notwithstanding the assurance of the Suwannee financial planner that the Medicare rate projected for the first year of operation is in keeping with the Hospital Cost Containment Board's data on the average rate structure, that comment and his other explanations failed to establish the reasonableness of that charge. This is especially true when considering the fact that the Medicaid charges, even accepting an adjusted rate of $80 per day, are also indicated at Schedule 12 as including therapies and are far less than the Medicare per diem. Schedule 17 shows the Medicaid without reference to the therapies as an aggregate item in the same fashion as described with the Medicare category of reimbursement. Further, evidence of the fact that private room, private pay, does not exceed the Medicare per diem charge is related at Schedule 12 where it describes the subacute private room, private pay patient as paying $150 and the semiprivate, room private pay as paying $130. Again, in the Suwannee application in the first year of operation for both Medicaid and Medicare therapies are said to be included in the basic charges of $68 and $130 respectively shown at Schedule 12 and carried forward in the aggregate on Schedule 17. From the explanations stated by the financial planner, the projected costs for therapies by those two categories of patients is not reflected in the ancillary cost centers for physical therapy, speech therapy and occupational therapy found at lines 11-13 of Schedule 18. Instead, they are reflected at line 39 under other costs centers in the amount of $80,900. Moreover the $80,900 is said to include subacute services as well as the therapies. Having considered Schedules 12, 17 and 18 for the first operating year, together with the other evidence presented in the course of the hearing, the estimate at line 39 of Schedule 18 of $80,900 is unreliable. The Suwannee project contemplates a facility of approximately 24,370 square feet. The construction cost estimate is $62.44 per square foot. The total project cost per bed is $56,802. That far exceeds the caps for the property cost component related to Medicaid residents which is presently $30,350 per bed. Put another way, that translates to a differential of $11.64 per patient day above present reimbursement levels for Medicaid residents. That differential cannot be made up by resort to payments for ancillary services for that category of resident. The shortfall attributable to the costs per bed differential in the application of $56,802 compared to $30,350 per bed plus ancillaries is not expected to be made up by resort to other revenue sources within this proposal either, nor can it be properly be. This is particularly true when approximately 70% of the patient days are expected to be provided by Medicaid residents. Even if Suwannee were able to obtain reimbursement for the per bed cost of $56,802, this is much more than the Starke cost per bed which is approximately $30,000 as built. The cap that has been mentioned is the one effective July 1, 1990. Nothing in the testimony would suggest that the caps would approach $56,802 within the planning horizon for this review cycle. In summary, the financial feasibility of the Suwannee proposal has not been established. While the parent corporation, Santa Fe Health Care, Inc., is strong financially and able to sustain Suwannee in its nursing home operation in the short term, even with expected losses, the losses will be extraordinary and the long term feasibility has not been demonstrated either. Simply stated, too much money is being expended to establish this facility and it may not be recouped by resort to the reimbursement scheme identified in the application. Under the circumstances, the nursing home is not perceived as a means of promoting the financial well being of the overall project constituted of the nursing home, relocated hospital and associated services. It is not accepted that the manner and quality of care proposed to be delivered by Suwannee is so superior that it justifies the inordinate expense in delivering the care. In other particulars Suwannee has shown that it meets all applicable criteria for granting it a certificate of need, but the overall costs are so exorbitant that they preclude financial success in the project. In addition, even if the project met the criteria its costs compared to the Starke proposal are so much more that the Suwannee proposal should be rejected in favor of the Starke proposal. It is not accepted that a hospital based nursing home is superior to a freestanding nursing home as urged by the presentation made by Suwannee. Starke had applied for a 120 bed nursing home, with a separate request explaining its proposal to construct a 60 bed nursing home. It is that latter proposal that fits the need in Planning Area I of District III. The total capital expenditure for that alternative proposal is $1,882,713. The cost per square foot is approximately $60 in the 22,500 square foot facility. The per bed costs is in the neighborhood of $30,000. In the first year of operation the private room, private pay is $89; the semiprivate room, private pay rate is $79; the Medicaid rate is $69.50 and the Medicare rate is $69.50. These rates do not include ancillary charges for therapies. The Starke proposal will include a unit for Alzheimer, subacute care, adult day care and respite care. Starke will provide 80% of its patient days for Medicaid residents and 10% of its patient days for Medicare residents. The Medicaid performance exceeds that of Suwannee. That rate is consistent with the experience which Starke has in the operation of its Whispering Pines Care Center in Starke, Florida, a 120 bed nursing home facility which has held a superior license rating over the three years preceding the application. Starke as a corporation would own both the Starke, Florida facility and the proposed Lake City, Florida facility. The principals in that corporation with 50% ownership are J. D. Griffis and George R. Grosse, Jr. The subacute care that is to be provided is in patient rooms which are directly adjacent to the nursing station. It is the intention of the applicant to build these rooms to allow support for medical equipment needed in the treatment of those residents. Although some criticism has been directed to the architectural design of the proposed nursing home facility, Starke has committed itself to meet all applicable codes. Under the circumstances it does not appear that this application presents significant problems associated with resident safety or inordinate costs in making necessary adjustments to comply with applicable codes. The Starke application was prepared by Jerry L. Keach, the then administrator for University Nursing Care Center in Gainesville, Florida, operated by Covenant Care Corporation. By the comments found in the application it was contemplated that the Covenant Care group would manage the Starke facility in Lake City, Florida, which would do business as Lake City Care Center. No contract has been executed between Starke and Covenant Care Corporation to allow the latter entity to manage the Lake City facility assuming the grant of the certificate of need to that applicant. At hearing the principals for Starke indicated that Covenant Care together with other unnamed organizations would be considered as management for the nursing home in Lake City. Although this issue of management is unresolved, reservations about the project are overcome in recognition of the success of the Starke corporation in the operation of the Whispering Pines Care Center in Starke, Florida. That suffices as an indication that Starke is capable of installing appropriate personnel to operate the Lake City facility, and provide quality care. The assumptions concerning the various aspects of the proposals set forth in the Starke application are sufficiently explained in the course of the final hearing and those explanations are accepted. It is reasonable to expect that the nursing home could be constructed, staffed and operated in a manner consistent with the explanations found in the application and through testimony at hearing. A successful outcome is anticipated whether the Covenant Care Corporation is employed to operate the facility or not. The favorable impression of the Starke proposal is held notwithstanding the criticism directed to the financial feasibility by remarks offered by Suwannee. In particular the Suwannee Exhibit No. 11 admitted into evidence questioning the assumptions of the Starke applicant concerning income projections for the first two years have been taken into account. Whispering Pines Care Center presently offers care for Alzheimer patients and subacute services. Therefore problems are not anticipated in the provision of those services in the proposed facility. With due regard for the criticisms that have been directed to the financial ability of Starke to maintain its Whispering Pines Nursing Center and the proposed project in Lake City, Florida, it is found that the applicant has the ability to conduct those businesses. As with the matter of financial feasibility, Starke has satisfied all other applicable criteria for the grant of a certificate of need to construct the 60 bed nursing home.
Recommendation Based upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires all CONs granted to be consistent with the applications and in keeping with that intention: Grants CON 5987 to Inverness for the addition of 20 community nursing home beds to its existing facility upon condition that those beds be constituted of a minimum of 75.2% total patient days for Medicaid patients; Grants CON 5962 to Starke for construction of a nursing home in Columbia County, Florida, constituted of a minimum of 80% total patient days for Medicaid patients, that provides Alzheimer services, subacute care, day care and respite care; Grants CON 5910 to McCoy for the addition of 60 beds upon condition that 60% of the patient days be devoted to Medicaid patients; Grants CON 5905 to Regency for construction of a 120 nursing home facility with 62% of its patient dads being devoted to Medicaid patients, 2 beds dedicated to Alzheimer patients, provision of respite care and that the facility shall be a one-story design consisting of 43,000 gross square feet in size; and Denies the application for a 60 bed nursing home in Suwannee County made by Suwannee under CON Action No. 5912. DONE and ENTERED this 19th day of September, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1990. APPENDIX CASE NOS. 90-0043 and 90-0045 The following discussion is given concerning the proposed facts of the parties: Inverness Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Suwannee Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is contrary to facts found in that the Starke application can be advanced without a resort to an affiliation with Covenant Care Corporation. Paragraph 9 is accepted; however, those facts do not cause the rejection of the Starke proposal. Paragraphs 10 and 11 are not necessary to the resolution of the dispute. Paragraph 12 is accepted as factually correct; however, this is not crucial in determining the outcome of this case. Concerning Paragraph 13, while the record reveals that Mr. Keach was responsible at a time moratorium had been placed on admissions into University Nursing Care Center in Gainesville, Florida, the record was not detailed enough to ascertain what influence that might have on his ability to act as an administrator at the Starke facility proposed in this instance or his competence in preparing the application. The representations found in Paragraph 14 do not preclude the consideration of the Starke application. Concerning Paragraph 15, the first sentence is rejected as fact. The second and third sentences are not necessary to the resolution of the dispute. Concerning Paragraph 16, those items which are mentioned did not cause the rejection of the Starke application in that Starke is committed to abide by all applicable codes to insure control over the patients. Paragraphs 17 through 21 are contrary to facts found. Concerning Paragraphs 22-24, the Starke proposal is found to be financially feasible. Paragraph 25-27 are subordinate to facts found. Concerning Paragraph 28, notwithstanding economies of scale they will not overcome the inherent extravagance in the costs associated with bringing the Suwannee project on line. Concerning Paragraph 29, while diversification for rural hospitals is desirable, the present attempt by Suwannee is unacceptable. Paragraph 30 is subordinate to facts found. Concerning Paragraph 31 see comment on Paragraph 29. Paragraph 32 is subordinate to facts found. Paragraph 33 is accepted; however, the principal service area would appear to be Suwannee County. The existence of service over to Hamilton, Madison, Lafayette and Columbia Counties does not change the perception of this case. Paragraph 34 is subordinate to facts found. Paragraph 35 is contrary to facts found as are Paragraphs 36 and 37. Concerning Paragraph 38, the affiliation of Suwannee with the Santa Fe Health Care system does not overcome the lack of financial feasibility. Paragraphs 39 and 40 are subordinate to facts found. Paragraph 41 is contrary to facts found. Paragraph 42 is not necessary to the resolution of the dispute. Paragraph 43 is contrary to facts found. Paragraphs 44 and 45 are subordinate to facts found. Paragraph 46 is contrary to facts found. Paragraphs 47-55 are subordinate to facts found. Paragraph 56 is not necessary to the resolution of the dispute. Paragraphs 57-60 are subordinate to facts found. Paragraph 61 is contrary to facts found. Paragraph 62 is subordinate to facts found. Paragraph 63 is contrary to facts found. Paragraph 64 is subordinate to facts found. Concerning Paragraph 65, notwithstanding these observations they do not justify the rate structure or per diem charges set out in the Suwannee application. Paragraph 66 is subordinate to facts found as are the first two sentences of Paragraph 67. The last sentence to Paragraph 67 is rejected. Paragraphs 68 and 69 are contrary to facts found. The first sentence of Paragraph 70 is subordinate to facts found. The second sentence is not relevant. Paragraphs 71 through the first sentence of Paragraph 73 is contrary to facts found. Concerning the last sentence of Paragraph 73, Starke is found to be financially feasible and Suwannee is not. Paragraph 74 is subordinate to facts found. Paragraphs 75 and 76 have been taken into account in deciding that there are no particular advantages to placing the 60 beds in Columbia County as opposed to Suwannee County. Paragraph 77 in all sentences save the last is accepted. The last sentence is contrary to facts found in that subacute care will be rendered in the Starke facility. Paragraphs 78 through 80 are contrary to facts found. Paragraph 81 is subordinate to facts found. Paragraph 82 is accepted in the premise, but use of Suwannee as the facility to serve this population is rejected based upon the lack of financial feasibility. Paragraph 83 is subordinate to facts found with the exception that the subacute patients would not be best placed with Suwannee. Paragraph 84 and 85 are subordinate to facts found. Paragraph 86 is contrary to facts found. Paragraphs 1-5 with the exception of the last sentence in Paragraph 5 are subordinate to facts found. Concerning that latter sentence it is clear that Suwannee would intend to build the nursing home facility together with the hospital or exclusive of the hospital project. Paragraphs 6-8 are not necessary to the resolution of the dispute. Paragraph 9 is subordinate to facts found. Paragraph 10 is accepted and it is acknowledged that the applicants can approximate that average. Paragraphs 11 and 12 are subordinate to facts found. Concerning Paragraph 13 Suwannee did establish its percentage of commitment to Medicaid through proof at hearing. Paragraphs 14 through 23 are subordinate to facts found. Paragraph 24 is contrary to facts found in that Starke offers no greater enhancement than Suwannee in terms of geographic accessibility and is not really a competitor in this criterion with McCoy. Paragraphs 25 through 27 are subordinate to facts found. Paragraph 28 is contrary to facts found in that Suwannee did identify the programs that it intends to offer. Paragraphs 29 through 36 are subordinate to facts found. Paragraph 37 in the first sentence is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. Paragraph 38 is subordinate to facts found. Paragraph 39 is not necessary to the resolution of the dispute. Concerning Paragraph 40 while it is agreed that swing beds are skilled level of nursing home care they do not constitute reasonable alternatives to long term care. Paragraph 41 is subordinate to facts found in the first sentence. The second sentence in its suggestion that there is no significance to the lack of provision of these types of services under subacute care in area nursing homes is rejected. Paragraph 42 is rejected. Paragraph 43 is subordinate to facts found. Paragraph 44 is contrary to facts found. Paragraphs 45 through 52 are subordinate to facts found. Paragraph 53 is contrary to facts found. Paragraph 54 is subordinate to facts found with the exception that the reason that the Suwannee project is not found to be financially feasible does not include reference to a higher charge for Medicare patients than the charge to private pay patients. Paragraphs 55 through 60 with the exception of the last sentence in Paragraph 60 are subordinate to facts found. The nursing home is intended to be built whether the replacement hospital is built or not. Paragraphs 61 through 65 are subordinate to facts found. Starke Paragraphs 1 through 5 with the exception of the latter two sentences in Paragraph 5 are subordinate to facts found. Concerning the next to the last sentence, it was made clear that the intentions on the part of Suwannee were to build the nursing home. The last sentence to the extent that it is intended to suggest that this applicant is incapable of offering long term care services is rejected. Paragraphs 6 through 8 are not necessary to the resolution of the dispute. Paragraphs 9 through 11 are subordinate to facts found. Concerning Paragraph 12 to the extent that it suggests that Suwannee is not willing to provide services to Medicaid recipients, it is rejected. Paragraphs 13 through 21 are subordinate to facts found. Paragraph 22 is contrary to facts found in that Starke is not seen as enhancing geographic accessibility to a greater extent than Suwannee its true competitor. Paragraphs 23 and 24 are subordinate to facts found. Paragraph 25 is contrary to facts found ih that Suwannee has identified its special programs. Paragraphs 26 through 33 are subordinate to facts found. Paragraph 34 is subordinate to facts found in the first sentence. The second sentence is not necessary to the resolution of the dispute. Paragraph 35 is subordinate to facts found. Paragraph 36 is not necessary to the resolution of the dispute. Concerning Paragraph 37 while it is agreed that swing beds are skilled level of nursing home care they do not constitute reasonable alternatives to long term care. Paragraph 38 is subordinate to facts found in the first sentence. The second sentence in its suggestion than there is no significance to the lack of provision of these types of services under subacute care in area nursing homes is rejected. Paragraph 39 is rejected. Paragraphs 40 and 41 are subordinate to facts found. Paragraph 42 is contrary to facts found. Paragraphs 43 through 50 are subordinate to facts found. Paragraph 51 is contrary to facts found. Paragraph 52 is subordinate to facts found except as it suggests that the difference in rate between Medicaid patients and private pay patients in the Suwannee proposal forms the basis for the criticism that the Suwannee project is not financially sound. Paragraphs 53 through the first two sentence of Paragraph 59 are subordinate to facts found. Related to the latter sentences in Paragraph 59 it is clear that the schematic pertains to the basic design of the Suwannee facility whether attached to a new hospital or free standing. Paragraphs 60 through 64 are subordinate to facts found. McCoy Paragraph 1 is subordinate to facts found. Paragraphs 2 and 3 are not necessary to the resolution of the dispute. Paragraph 4 is subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 83 are subordinate to facts found. Regency Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 5 are subordinate to facts found. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Elizabeth McArthur, Esquire Jeffrey Frehn, Esquire Aurell, Radey, Hinkle and Thomas 101 North Monroe Street, Suite 1000 Post Office Drawer 11307 Tallahassee, FL 32302 W. David Watkins, Esquire Oertel, Hoffman, Fernandez and Cole, P.A. Post Office Box 6507 2700 Blair Stone Road Tallahasee, FL 32314-6507 Leslie Mendelson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, FL 32308 James C. Hauser, Esquire F. Phillip Blank, Esquire R. Terry Rigsby, Esquire Julie Gallagher, Esquire F. Philip Blank, P.A. 204-B South Monroe Street Tallahassee, FL 32301 Grafton B. Wilson, II, Esquire 711 North 23rd Avenue, Suite 4 Post Office Box 1292 Gainesville, FL 32602 R. Bruce McKibben, Esquire Dempsey and Goldsmith, P.A. 307 West Park Avenue Tallahassee, FL 32301
The Issue Whether Petitioners' applications for Certificates of Need should be approved?
Findings Of Fact Ocala Ocala is a general partnership composed of three partners: Ocala Health Care Associates, Inc., Casterfield, Ltd., and Big Sun Healthcare Systems, the lessee and operator of Munroe Regional Medical Center. Ocala is the current holder of an approved CON for 35 community beds in Marion County. If the 21-bed transfer of sheltered beds to community beds is approved, Ocala intends to operate a 56-bed facility. A 56-bed facility is more viable than a 35-bed facility. At the time of the hearing, there were 642 approved and licensed beds and 215 approved not yet licensed beds in Marion County. The 215 beds include Ocala's 35-bed CON. A patient needing subacute care is one who has been released from acute care status by a physician and is ready to be released from a hospital (acute care) to a less costly facility, e.g. a skilled nursing home. Subacute care patients are those needing, e.g., intravenous tubes, respirators, IV medication, decubitus ulcer care, tracheotomy tubes, or antibiotic therapy. Patients needing subacute care should be placed in a nursing home, since this is less costly than hospital care and it allows for acute care beds in a hospital to be used for patients needing acute care. Skilled nursing homes are authorized to provide subacute care, but are not required to do so. In order to provide subacute care, a nursing home may need additional staff and equipment. There is a problem in Marion County with the placement of subacute care patients in nursing homes. This problem is caused by a variety of factors and usually results in a patient remaining in a hospital longer than is necessary. One factor is that some of the existing nursing homes will not accept patients needing certain types of subacute care, e.g., patients needing ventilators or feeding tubes. Another equally important factor is that the nursing homes want to make sure they will get paid and there is usually some delay in determining how the nursing home will be compensated. Other factors include the patients inability to pay and, on occasion, the unavailability of beds. Ocala intends to use its 35-bed approved CON to provide subacute care. Country Club While the application shows the applicant's name as "Country Club Retirement Center," that is the name of the project. The applicant is Mr. J. E. Holland. Mr. Holland's application is for a 60-bed nursing home which will be part of a 250-apartment continuing care community. The facility is to be located in Clermont, in Lake County. Lake County is in Planning Area VII of HRS District III. Planning Area VII also includes Sumter County. Mr. Keach, the only witness presented by Country Club, is Vice President of National Health Care. National Health Care operates a nursing home in Gainesville, Florida. In addition to operating the nursing home, National Health Care assists persons seeking a CON with preparation of the CON application. Mr. Keach and other National Health Care employees assisted Mr. Holland with the preparation of the CON application submitted in this case. National Health Care will not own or operate Mr. Holland's facility. Mr. Keach is of the opinion that there is need in Clermont for a 60- bed nursing home. He bases his opinion on letters of support for the construction of the facility, on petitions signed by persons attending a public hearing, and on four or five visits to the area. Mr. Keach never performed a study which would indicate the number of persons with a "documented need" for nursing home services who have been denied access to a nursing home. At the time HRS issued its State Agency Action Report there were 958 beds approved and licensed in Planning Area VII. Of these, 838 are located in Lake County, with 142 located in a nursing home in Clermont. Also these are swing-beds providing long-term care at a hospital in Clermont. Finally, there were 236 beds approved not yet licensed in Planning Area VII, with 176 to be located in Lake County. The occupancy rate for the nursing home facility located in Clermont is approximately 89 percent. For the six months ending March, 1988, the occupancy rate for Planning Area VII was below 80 percent. There are at least two nursing homes in operation within a 20-mile radius of Clermont. These two nursing homes are located in Winter Garden and one of them has received a CON to add 89 beds. Twenty-Eight Corporation The applicant in this case is Twenty-Eight Corporation. "The owner of the nursing home will be the Levy Nursing Care Center, a limited partnership, which will be owned and secured by Twenty-Eight Corporation." (28 Corporation, Composite Exhibit 1.) Twenty-Eight corporation seeks approval of a CON for 60 nursing home beds to be operated as part of a continuing care project which will include a 50-unit apartment complex. The facility is to be located in Chiefland, Florida, in Levy County. Levy County is in Planning Area II of HRS District III. Planning Area II also includes Alachua, Gilchrist and Dixie counties. At the time HRS issued its State Agency Action Report, there were 1112 licensed nursing home beds in Planning Area II. Of these, 120 are located in Trenton, in Gilchrist County, 180 are located in Williston, in Levy County, and the rest are located in Alachua County. Also, there are 147 beds approved not yet licensed to be located in Alachua County. Chiefland is approximately 12 miles from Trenton. Williston is approximately 27 miles from Trenton. Mr. Keach was the only witness who testified on behalf of Twenty-Eight Corporation. Mr. Keach is vice-president of National Health Care. (See Finding of Fact 17, supra.) Mr. Keach is of the opinion that there is need in the Chiefland area for a 60-bed nursing home. His opinion is based on letters of support and petitions of support he received for the project. Also, his opinion is based on the fact that there is no nursing home located in Chiefland and the nearest nursing home is located in Trenton, 12 miles away. The 1986 District III Health Plan shows the Trenton facility having an occupancy rate of 99.93 percent. Mr. Keach never performed a study which would indicate the number of persons with a "documented need" for nursing home services who have been denied access to a nursing home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that HRS enter a Final Order denying Petitioners' applications in these three cases. DONE and ENTERED this 3rd day of March, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES 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 3rd day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-1862, 88-1863, 88-1864 Rulings on Proposed Findings of Fact Ocala's Proposed Findings of Fact: 1. Accepted. 2-4. Supported by competent, substantial evidence but unnecessary to the decision reached. 5-7. Accepted. Irrelevant. Accepted. Rejected as not supported by the weight of the evidence. There is not an absolute absence of facilities willing to accept all patients needing subacute care. Irrelevant. "Serious concerns" are not what is needed under the Rule. First sentence rejected as recitation of testimony. Second sentence irrelevant; issue is whether nursing homes will accept patients, not whether nursing homes will enter into agreement with MRMC. 13-16. True, but irrelevant. Accepted. (a) Rejected to the extent it implies that the approved facilities would not provide subacute care. Mr. Bailey's testimony is that the facilities refused to enter into a relationship with MRMC; this does not establish that the facilities would not provide subacute care. Rejected as a recitation of testimony. The weight of the evidence shows that some facilities would accept same subacute patients. True, but it is unclear if these are the physician's notations the HRS witness referred to. True that charts and logs were provided, but they did not establish the number of patients in need of subacute care in excess of licensed or approved beds. 19-26. Irrelevant. 27-29. Accepted-for what they are, but insufficient to establish need. Twenty-Eight Corporation's Proposed Findings of Fact: 1-4 Accepted. Irrelevant. This is a de novo proceeding. True, but irrelevant. Accepted. Accepted. Rejected as hearsay. But see Finding of Fact 31. Mr. Keach testified that Chiefland is 40 miles from Williston. The road map published by the Department of Transportation shows the distance between the two cities at 27 miles. True, but irrelevant. True, but irrelevant. Accepted. Accepted. However, this special consideration should be given only where numeric need has been established in the District. True, but irrelevant. True, but irrelevant. Rejected as hearsay. True, but irrelevant. Rejected as hearsay. Also, a determination by a family member does not establish medical "need". True that this is Mr. Keach's opinion. However, Mr. Keach's opinion is rejected. His opinion of need is not based on what the Rule requires or on what health planners rely on to establish need. Mr. Keach is not able to testify as to the financial feasibility of the facility because he has no first- hand knowledge of the finances. 21-22. Irrelevant. 23. Rejected. See ruling on 10., supra. 24-26. Irrelevant. Rejected as contrary to the weight of the evidence. Irrelevant. Irrelevant; this is not a rule challenge. Irrelevant. True, but irrelevant. Irrelevant. Accepted. Rejected as hearsay. Rejected as not supported by the weight of the evidence. Rejected as argument. Also, unable to determine what the "second portion" is. 37-38. Irrelevant. First phrase accepted. Second phrase rejected to extent implies that only need to show that no other facility exists within 20 miles. Irrelevant. Country Club's Proposed Findings of Fact: 1-4. Accepted. Irrelevant. This is a de novo proceeding. True, but irrelevant. Accepted. Irrelevant. True, but irrelevant. Accepted. Accepted. However, this special consideration should be given only where numeric need has been established in the District. True, but irrelevant. True, but irrelevant. 14-17. Irrelevant. Rejected as contrary to the weight of the evidence. Accepted. Rejected as not supported by competent evidence; hearsay. Accepted. Rejected as not supported by competent evidence; hearsay. Irrelevant. Rejected as not supported by competent evidence; hearsay. True, but irrelevant. See ruling on 11, supra. Irrelevant. Rejected as not supported by competent evidence; hearsay. Irrelevant. The Rule also recognizes this. Irrelevant. Rejected as not supported by the weight of the evidence and irrelevant. True, but irrelevant. True, but irrelevant. 33-34. True, but irrelevant. This is a de novo proceeding. 35-39. Irrelevant. 40. Rejected as argument. Also, unable to determine what the "second portion" is. 41-42. Accepted 43. Rejected as contrary to the weight of the evidence. 44. True, but irrelevant. Also, there are approved beds within 20 miles, but located in a different HRS District. Leesburg's Proposed Findings of Fact 1-7. Accepted. Rejected as not a finding of fact. Accepted. 10-15. See Conclusions of Law section of RO. Accepted. Rejected as argument. Accepted. Rejected. Fact that need does not exist under HRS rule doesn't necessarily mean that that facility will not be financially feasible. In any event, Country Club was not able to establish financial feasibility. 20-21. See Conclusions of Law. 22. Rejected as argument. 23-28. Supported by competent substantial evidence but unnecessary to the decision reached. Accepted. Rejected as a recitation of testimony. Accepted.- HRS's Proposed Findings of Fact 1-19. Accepted. Rejected. The HRS witness did not specifically state that HRS needs to see the actual physician referral. Accepted. See Conclusions of Law. 22-28. Accepted. See Conclusions of Law. 29. Not a finding of fact. 30-37. Accepted. 38. Irrelevant. 39-42. Unnecessary to the decision reached. Irrelevant. Accepted. 45-46. See Conclusions of Law. Accepted. Accepted. Not a finding of fact. 50-65. Accepted. See Conclusions of Law. 66. Not a finding of fact. 67-71. Accepted, but Ocala's Exhibits 6 & 7 are not amendments to the application but simply more of the same information that was provided with the application. COPIES FURNISHED: Gerald B. Sternstein, Esquire Darrell White, Esquire Post Office Box 2174 First Florida Bank Building Suite 600 215 South Monroe Street Tallahassee, Florida 32301 Theodore Mack, Esquire Assistant General Counsel 2727 Mahan Drive Fort Knox Executive Center Tallahassee, Florida 32308 R. Bruce McKibben, Jr., Esquire 307 West Park Avenue Post Office Box 10651 Tallahassee, Florida 32302 Grafton Wilson, II, Esquire 711 NW 23rd Avenue, Suite #4 Gainesville, Florida 32609 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Guy Hendricks, III, R.Ph., is subject to discipline pursuant to Subsection 465.016(1)(e), Florida Statutes, for violating Rule 64B16-28.120(2), Florida Administrative Code.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Guy R. Hendricks, III, R.Ph., is a Florida-licensed registered pharmacist, so licensed in 1972; he was licensed as a consultant pharmacist in 1974. Registered pharmacists typically dispense medications at a community pharmacy, for example, Eckerds and Walgreen's. Consulting pharmacists oversee a pharmaceutical distribution system in a long-term care nursing home facility with a Class I institutional permit. In addition to his employment at the Arbors in Orange Park (the Arbors), Respondent is engaged in the development of "cutting edge consultant computer programs" and "research and development in the field of software platforms which will lead to a fully integrated consultant software package." (Respondent's vita, Petitioner's Exhibit 2) On August 1, 1996, Respondent became the consulting pharmacist for the Arbors. The AHCA survey, which is the genesis of the allegations of the Amended Administrative Complaint in this case, was conducted later that same month. The Arbors is a sub-acute care facility which has a Class I institutional pharmacy permit. Florida Statutes and Florida Administrative Code rules restrict the type of medicinal drugs and drug preparations allowed in Class I institutional pharmacies. One of the consulting pharmacist's responsibilities is to see that the applicable Florida Statutes and Florida Administrative Code rules are followed within the Class I institutional pharmacies, subject to pharmacist's control. The Arbors utilized a Baxter SureMed Dispensing Machine (SureMed machine) which is a computerized dispensing machine that stores medications and allows the pharmacist to track when medications are taken from the machine, by whom they are taken, what dosage is dispensed, and to whom the medication is administered. It has a complete computerized tracking system. It is a "modern tool of pharmacy" used to provide a high level of pharmaceutical care for nursing home residents. Florida Statutes and Florida Administrative Code rules require that nursing homes, such as the Arbors, provide "reasonable and consistent quality of life for residents" and that "reasonable efforts be made to accommodate the needs and preferences of residents to enhance the quality of life in a nursing home." Florida Administrative Code rules allow the Arbors to adopt policies and procedures regarding drugs to meet the needs of residents and to maintain an Emergency Medical Kit(s), the contents of which shall be determined by the facility's medical director, director of nursing, and pharmacist, and "it (the medical kit) shall be in accordance with facility policy and procedures"; the "emergency medical kit" may contain medicinal drugs and drug preparations which are not otherwise allowed within Class I institutional pharmacies. Respondent testified that the SureMed machine was being used as one of the Emergency Medical Kits of the Arbors. The drugs contained in the SureMed machine were determined by the Arbors staff before Respondent was employed as consulting pharmacist. During the August 27-28, 1996, AHCA Survey, the surveyor concluded that the SureMed machine was being used inappropriately by the Arbors. The survey revealed that the SureMed dispensing unit was used as an emergency medication kit. Review of the SureMed Policy and Procedure stated "Medications stored in SureMed are intended for emergency stat orders, late admission first dose, new orders and missing doses" (part of Petitioner's Exhibit 5) contrary to the approved use of medicinal drugs used in facilities with a Class I Institutional Pharmacy Permit. An inventory list provided by the facility revealed in excess of 300 medications in the SureMed unit and this unit had been accessed 22 times in the 24 hours prior to surveyor review. Further review of the usage log revealed that an unsampled resident received Norixin from the SureMed unit on 8/26/96 at 23:04, 8/27/96 at 22:21 and 8/28/96 at 22:21 instead of receiving a resident specific labeled medication from the provider pharmacy. Respondent suggests that a "typographical error" may have occurred in the facility's SureMed policy and procedure in that, if the word "not" is inserted after the words "emergency stat orders," the policy and procedure would conform to the limitations proscribed for Class I institutional permitees. While this explanation is plausible, it is not accepted as credible. This portion of the Arbors' SureMed policy and procedure, referenced by the AHCA surveyor, does not follow Florida law. If the foregoing policy and procedure language is the only language considered, the surveyor's conclusions may be justified; however, the surveyor failed to note the following language which immediately follows the quote from the same SureMed policy and procedure. "SureMed is not intended to be a routine source of medication. The pharmacy must be informed of all new admissions, new orders, refill orders, and missing doses." When a nursing home resident is first admitted to the Arbors, the admittee does not bring medications but brings new prescription orders which must be filled by the provider or back-up pharmacy. Home Care Pharmacy in Orlando, Florida, provides medications to the Arbors; it is 140 miles from Orlando to Orange Park. Deliveries are made two times a day. There were occasions in 1996 when patients were out of medication or Home Care Pharmacy was not delivering as ordered. While the Arbors has only a Class I institutional permit which limits drugs readily available to residents, the facility accepts residents who are "sub-acute" care patients, for example, patients with chronic disease, post-surgical patients, and patients with "super" infections, all of whom require continuity of pharmaceutical therapy. Frank May, a registered pharmacist and certified HCFA surveyor for AHCA, testified that while the Arbors' SureMed policy and procedure were "out of compliance," nevertheless, it was appropriate to "take a drug out of the machine or out of the emergency medication kit if it cannot be provided by the provider pharmacy or if that provider pharmacy is a long way off or by a back-up pharmacy in a timely manner for the next dosage of that medication." May also testified that "there is nothing wrong" with utilizing the SureMed machine as an emergency medical kit or maintaining drugs, otherwise not permitted in a Class I institution permit, in the machine. May further testified that without examining each instance wherein the SureMed machine was accessed immediately prior to the AHCA survey, it would be impossible to determine whether or not an "emergency" existed warranting the use of the particular drug obtained from the SureMed machine. May testified that in 1996, the use of automated drug dispensing machines was becoming very prominent in nursing homes; and problems, such as addressed in this case, were "fairly prevalent." Respondent maintains that the facility's use of the SureMed machine was on a bona fide emergency basis only. The Arbors' SureMed policy and procedure were changed immediately following the August 1996 survey. Respondent sent AHCA a July 20, 1997, letter in response to the AHCA licensure investigation in which he identified the SureMed machine as a "computerized emergency system," a "modern tool of pharmacy," and "our only solution" "to treat our residents' sub acute conditions" when "some local pharmacies . . . could not provide medications." The SureMed machine was removed from the Arbors in November 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 28th day of March, 2001. COPIES FURNISHED: Guy Hendericks, III Post Office Box 4173 Sebring, Florida 33871 Lawrence F. Kranert, Jr., Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 John Taylor, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Recommendation It is recommended that a Final Order be entered granting Kensington Manor Inc. CON No. 6430 to construct a 120 bed nursing home and to rehabilitate the existing 147 bed nursing home to an 87 bed nursing home in Sarasota County. RECOMMENDED this 14th day of March, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3665 Petitioner's proposed findings are accepted, except #5. Sentence stating "There are no laundry facilities in the nursing home." is rejected as inconsistent with proposed finding #7. Respondent's proposed findings are also accepted. Most of the defects in the application which Respondent finds to be not in compliance with the statutory requirements were corrected by the testimony at this hearing. COPIES FURNISHED: Alfred W. Clark, Esquire 1725 Mahan Drive Tallahassee, FL 32308 Richard Patterson, Esquire 2727 Mahan Drive Tallahassee, FL 32308 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
The Issue This case involves the issue of whether the certificate of need law applies to Whitehall Boca's intended conversion of 100 beds in an adult congregate living facility to skilled nursing beds. The second issue is, in the event that it is determined that the certificate of need law does apply, whether Whitehall Boca is entitled to convert a limited number of its adult congregate living facility beds to skilled nursing beds without the need for obtaining a certificate of need in accordance with Section 381.494(1)(d), Florida Statutes. At the final hearing Petitioner called Carol J. Wortham, Steve Mulder, and Jeffrey W. Smith. The Respondent called as its only witness Gene Nelson. The Petitioner offered and had admitted into evidence seventeen exhibits. The Respondent offered and had admitted into four exhibits. Subsequent to the final hearing, the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions of law are inconsistent with this Recommended Order, they were rejected by the Hearing Officer as unsupported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact Whitehall Boca is a 187-bed health care facility located in Boca Raton, Palm Beach County, Florida. Sixty-nine (69) of Whitehall Boca's beds are licensed by the Department of Health and Rehabilitative Services as skilled nursing beds in accordance with Chapter 400, Part I, Florida Statutes. One hundred eighteen (118) of Whitehall Boca's beds are licensed by the Department as an adult congregate living facility (hereafter ACLF) in accordance with Chapter 400, Part II, Florida Statutes. Whitehall Boca is seeking to convert 100 of its adult congregate living facility beds to skilled nursing beds. Whitehall Boca holds two separate licenses for the nursing home beds and for the ACLF. Whitehall Boca was opened on December 17, 1982, and was the culmination of the owner's goal of attempting to build the finest nursing home that has ever been built. The Whitehall Boca facility has received a superior rating from the Department of Health and Rehabilitative Services' office of licensure. The cost of construction of Whitehall Boca was approximately five and one-half million dollars. The funds for this construction were obtained from 100 percent private funds, which was arranged by Oak Park Trust Bank in Illinois and invested capital provided by the Mulder family. The loans were not guaranteed by the federal government or any governmental entity whatsoever. The 100 existing ACLF beds which Petitioner seeks to convert fully comply with all applicable federal, state and local license requirements for skilled nursing beds in their present condition. Only a few ancillary items such as medicine carts would be needed in order to make the conversion. Such items would involve a capital expenditure of no more than $5,000 to $6,000. The Respondent conceded at the formal hearing that cost of conversion is not an issue. It has been the policy of Whitehall Boca since 1955 not to accept federal funds nor to accept Medicaid or Medicare patients. Whitehall Boca does not accept Medicare and Medicaid patients in any of its homes because they offer an elite type of nursing home care which is not offered in other existing nursing homes. Whitehall Boca did not obtain its initial certificate of need for the 69 skilled nursing home beds by the usual statutory procedure. Whitehall Boca purchased Health Care Corporation, the entity who had originally obtained the certificate of need. However, after Whitehall Boca obtained the certificate of need, it applied for a license from DHRS and specifically informed them in its application that it would not accept Medicare or Medicaid patients. Whitehall Boca, an Illinois limited partnership, owns and operates the 187-bed nursing home complex in Boca Raton, Florida. At present, this is the only home owned by the Petitioner in the State of Florida. Whitehall Boca is owned by a father and a son, Paul and Steve Mulder. They own three nursing homes in Chicago, Illinois. Daily rates for the skilled nursing home beds at Whitehall Boca are $68 per day for three persons to a room, $80 per day for two persons to a room, with private rooms beginning at $125 per day. These rates are substantially higher than most other nursing homes in the area. Whitehall Boca caters to a very small segment of the population that is able to afford the luxuries and amenities available at Whitehall Boca. For most residents who have chosen the luxury accommodations at Whitehall Boca, the only alternative which would provide comparable care and maintenance of their lifestyle, would be private duty nursing arrangements at home. In the alternative to a total exemption from certificate of need review, Whitehall Boca contends it is entitled to convert 18 of its ACLF beds to skilled nursing beds without CON review pursuant to the provisions of Section 381.494(1)(d), Florida Statutes. DHRS does not consider an ACLF a health care facility and contends therefore that Section 381.494(1)(d) is not applicable to Petitioner's request.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services denying an exemption for Petitioner to convert ACLF beds to skilled nursing home beds and requiring that such a request be subject to review under Sections 381.493, et seq., Florida Statutes. DONE AND ENTERED this 6th day of July, 1984, at Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1984. COPIES FURNISHED: Jean Laramore, Esquire G. Steven Pfeiffer, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 Douglas L. Mannheimer, Esquire Culpepper, Turner and Mannheimer Post Office Drawer 11300 Tallahassee, Florida 32301-3300 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED That Manor Care be issued a CON for the construction of a 60 bed nursing home; Palm Bay Care Center be awarded a CON for the construction of a 60 bed nursing home; Forum Group be awarded a CON for a 40 bed nursing home and Courtenay Springs be awarded a CON for 36 nursing home beds. RECOMMENDED this 26th day of January, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-99675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1987. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jean Laramore, Esquire Kenneth Hoffman, Esquire 325 North Calhoun Street Tallahassee, Florida 32301 Thomas B. Smith, Esquire Post Office Box 633 Orlando, Florida 32802 John Grout, Esquire Post Office Box 180 Orlando, Florida 32802 Donna H. Stinson, Esquire Suite 100 Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Susan G. Tuttle, Esquire 402 South Florida Avenue Tampa, Florida 33602 Robert D. Newell, Jr., Esquire Suite B 200 South Monroe Street Tallahassee, Florida 32301 John F. Gilroy, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties herein. 1-13 Accepted. 14 & 15 Accepted. 16-18 Rejected as a recitation of the evidence. 19-23 Accepted. 24 Accepted. 25-29 Accepted. 30 & 31 Accepted. 32 Irrelevant. 33-34 Accepted. 35-37 Accepted. 38-46 Accepted. 47 & 48 Accepted. 49 & 50 Accepted. 51 Discussion, not Finding of Fact. 52-56 Accepted. Rejected as a recitation of the evidence. Accepted. Accepted to the fact that there were no sheltered beds in existence. Irrelevant. 61-63 Accepted but not of substantial positive value. 64 & 65 Accepted. Opinion not Finding of Fact. Accepted. 68-75 Accepted. 76-80 Irrelevant based on part operation and evidence shows facility is to be sold. 81-85 Irrelevant - see next 86-90 Rejected as a conclusion of law and not a Finding of Fact. 91 Not a Finding of Fact. 92-94 Accepted. 95 Irrelevant as to local district. 96-103 Accepted. 104-105 Rejected as contrary to the weight of the evidence. Accepted as to what Dr. Hoffman supported. Accepted as to what Dr. Hoffman indicated. 108-110 Accepted. Rejected as contrary to the weight of the evidence. Accepted. Not a Finding of Fact. 114-118 Accepted. 119&120 Not a Finding of Fact. 121&122 Accepted. 123 Accepted as to the one facility currently operated. 124-127 Accepted. Speculation insufficient to support a Finding of Fact. Argument, not a Finding of Fact. Accepted. 131-133 Accepted. 134 Not a Finding of Fact. 135-137 Accepted. 138 Not supported by the weight of the evidence. 139-147 Accepted. 148&149 Not a Finding of Fact. 150-164 Accepted. Rejected as a summary of testimony, not a Finding of Fact. Irrelevant. 167-176 Accepted. Rejected as contrary to the weight of the evidence Rejected as a summary of testimony. Accepted. 180&181 Accepted. 182 Irrelevant. 183&184 Accepted. 185 Rejected as a conclusion. 186&187 Rejected as contrary to the weight of the evidence. As to Manor Care 1 Accepted. 2&3 Rejected as not a part of the case. 4 Accepted. 5-7 Accepted. Accepted. Accepted. 10-11 Accepted. 12 Accepted. 13-19 Accepted. 20-22 Accepted. As to Forum 1-13 Accepted. 14-16 Accepted. 17-22 Accepted. 23&24 Accepted. 25-27 Accepted. 28-31 Accepted. 32 Accepted. 33-35 Accepted. 36 Rejected as speculation. 37-42 Accepted. 43 Accepted. 44-47 Accepted. 48&49 Accepted. 50-55 Accepted. Rejected as a conclusion not consistent with the evidence. Accepted. 58&59 Accepted. 60-64 Accepted. 65-69 Accepted. 70&71 Irrelevant. 72&73 Accepted. 74-76 Accepted. Accepted as to the first sentence. Second sentence is not a Finding of Fact. Accepted. As to PBCC 1&2 Accepted. 3 Rejected as a Conclusion of Law. 46 Accepted. Accepted. Rejected as contrary to the weight of the evidence. Accepted. 10-12 Accepted. Rejected as contrary to the weight of the evidence except for the first sentence which is accepted. Rejected. 15-20 Accepted. 21-27 Accepted. 28 Rejected as an overstatement and not supported by the evidence. 29&30 Accepted. 31 Rejected as contrary to the weight of the evidence. 32-38 Accepted. 39-43 Accepted. 44-50 Accepted. 51-57 Accepted. Accepted except for the first sentence which is unsupported by credible evidence of record. Accepted. Rejected. Accepted. As to Courtenay This party failed to number or otherwise identify its Findings of Fact individually. Therefore, no specific ruling as to each Finding of Fact is hereby made. In light of the ultimate recommendation of the Hearing Officer that the party's CON be approved, no prejudice to this party can be said to have occurred. As to DHRS 1-4 Accepted 5 Summary of testimony and not a Finding of Fact. 6-1 Is an argument of the party's position, not a Finding of Fact. 12-14 Rejected as matters not a part of the party's position at hearing. Accepted. Accepted. Accepted. Accepted. 19-22 Accepted. Rejected as a summary of testimony and not a Finding of Fact. Accepted. 25-28 Accepted. 29-31 Accepted.
The Issue Whether there was negligence involved in treating Lewis Dougal, a patient in the Miracle Hill Nursing and Convalescent Home. Whether the Respondent kept records in compliance with the statutes and the requirements of Chapter 10D-29 of the Florida Administrative Code.
Findings Of Fact The Miracle Hill Nursing and Convalescent Home had Lewis Dougal, an adult mentally retarded male, as a patient in January of 1976. On Thursday, January 29, 1976, Mr. Dougal was taken to Tallahassee Memorial Hospital for a neurological brain scan. His exact whereabouts have not been established during the period of time from 10:00 a.m. until 3:00 p.m. on that day, but he was in the emergency room area or in the radiology area of the hospital. At approximately 3:00 p.m. he was returned to the Respondent nursing home. At approximately 7:00 p.m. on January 30, a nurses aide discovered that Lewis Dougal had a reddened and swollen penis, a swollen scrotum and red marks on the buttocks. She called the charge nurse, an L.P.N., who did not call the doctor, but noted on the "nurse's log" that the patient should see a doctor the following day. No notation was made on the patient's individual medical record at that time. Mr. Dougal was transferred to Tallahassee Memorial Hospital late in the morning of January 31, 1976, whereupon he received a 50 mm injection of demerol for pain upon his admission to the hospital. He was released February 25, 1976. An investigative team from the Office of Health Facilities of the Department of Health and Rehabilitative Services, which consisted of a Hospital Nursing Home Consultant and a Registered Nurse, investigated the circumstances surrounding the incident on February the 25th and 27th, 1976. The injuries sustained by Mr. Dougal and his hospital records from the date of his admission, January 31, 1976, to the hospital, to the date of his release, February 25, 1976, were reviewed. The investigative team thereupon visited the Miracle Hill Convalescent and Nursing Home on February 27, 1976 and requested all medical records of the patient, Lewis Dougal. No medical records had been kept and the only reference to the incident was made on the "nurse's log" January 30 and 31, 1976. These entries were made subsequent to the dates thereof. Other information was placed on the records long after the incident occurred. On March 26, 1976, Petitioner State of Florida, Department of Health and Rehabilitative Services, issued an order charging Respondent with two violations: The first being in violation of Section 400.102(1)(a), Florida Statutes, and Chapter 10D-29.11(7), Florida Administrative Code, to-wit: "1. That the facility failed to protect a patient from neglect and abuse, in that a mentally retarded patient, incontinent of bowel and bladder, was allowed to acquire burns of the scrotal area, genitalia and buttocks, of sufficient severity to require hospitilization, such burns being caused by inadequate and improper nursing care on the part of the nursing service staff of the facility. As a result of the subject burns, the patient was hospitalized for treatment and care during the period January 31, 1976, and February 25, 1976, at Tallahassee Memorial Hospital. The admission diagnosis for this patient at the hospital in part was, "burns of the genitalia and buttocks." The admitting physician further noted that the admission examination revealed an obvious burn in the skin from the scrotum which had already desquamated indicating the burn had occurred some time previously, maybe as much as a couple of days. Further, a circular burn involving the buttocks was observed with the notation that it appeared the patient had been sitting in some very hot solution. The second charge was alleged to be in violation of Chapter 10D- 29.11(10) and (13) 1.(c), of the Florida Administrative Code in the following language: "(2) In that the required medical record documentation concerning how or when the above injuries occurred to this particular patient was lacking, and the investigating team was unable to determine just how or when the burns occurred or the specific person responsible for this."
Recommendation Section 400.121(1) (8), Florida Statutes, Denial, suspension, revocation of license; procedure.- (1) "The [department] may deny, revoke, or suspend a license or impose an administrative fine for a violation of any provision of s. 400.102 only after written notice to the applicant or licensee setting forth the particular grounds for the proposed action and a hearing, if demanded by the applicant or licensee." (8) The [department], as a part of any final order issued by it under the provisions of this chapter, may impose such fine as it deems proper, except that such fine shall not exceed $500 for each violation. Each day a violation of this chapter occurs shall constitute a separate violation and shall be subject to separate fine. An action for recovery of the fine may be maintained in the circuit court of the county in which the facility is located, and appeal from any judgment rendered shall be in the manner and within the time provided by the Florida Appellate Rules for reviewing judgments rendered by circuit courts in action at law." Record keeping is such an important and necessary adjunct to nursing home care the Respondent should suffer a fine of at least $200 for violation of the foregoing statutes and rules. DONE and ORDERED this 10th day of January, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Health Program Office Department of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida 32201 John K. Folsom, Esquire 122 South Calhoun Street Tallahassee, Florida 32301
