The Issue Did the Department of Children and Family Services (Department) improperly deny the in-home subsidy of $400.00 per month to Petitioner?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family Care Program, and the provisions of in-home subsidies. Petitioner is a 30-year-old severely developmentally disabled woman who suffers from cerebral palsy and is totally blind. Petitioner is confined to a wheelchair, cannot care for herself, and is totally dependent on others for her care 24 hours a day. Petitioner lives with her mother and legal guardian, Jo Anne Weaver, and her stepfather, in the Weaver's home, which was purchased by the Weavers in March 2001, with a mortgage, after renting the home for three years. The Weavers have made modifications to the home to accommodate Petitioner's needs, including a ceiling lift that takes Petitioner from her bed, through the hall, and into her bathroom. Mr. Weaver is school teacher who works two nights a week in addition to daytime employment. Jo Anne Weaver sells advertising for the Jewish Press and earns $170.00 per week, plus $50.00 per week for expenses. In addition to the in-home subsidy, Petitioner receives assistance through the Department under the Medicaid Waiver Program, which allocates funds to provide Petitioner with in- home caregivers and other in-home services, such as companion services, personal care assistance, respite care, and consumable medical supplies. The funds under the Medicaid Waiver Program are paid directly to the caregivers and service providers and not to Petitioner or her guardian. The Medicaid Waiver Program, through a cost plan established and approved each year for Petitioner, allocates funds to provide a maximum of ten hours per day of caregiver services to Petitioner. Petitioner's family, primarily her mother and stepfather, provide uncompensated care to Petitioner the remaining 14 hours of each day. Petitioner's mother gets up several times each night to diaper Petitioner and to reposition her in the bed. Due to a number of factors, Medicaid Waiver Program services that have been approved under a support plan may not ultimately be received by the disabled person. Petitioner has never used all the funding allocated under her support plan. Although the Medicaid Waiver Program authorizes the provisions of funds for caregivers for 10 hours each day, Petitioner's mother has been unable to arrange consistently for caregivers to come to the home for the full 70 hours each week because it is very difficult to find, secure, and keep caregivers who will provide services under the terms of the Medicaid Waiver Program. In addition to the services authorized under the Medicaid Waiver Program, Petitioner has been, since 1995, receiving a monthly in-home subsidy of $400.00 per month in accordance with Section 393.0695, Florida Statutes. The in-home subsidy is paid from general revenue funds and is not part of Medicaid program, and is the only payment that Petitioner or the Weavers receive directly from the Department. However, Petitioner receives $74.00 per month Supplemental Security Income and $478.00 per month court-ordered support payment from her father. Additionally, Petitioner's father pays for her Blue Cross/Blue Shield health insurance coverage. The Weavers pay for Petitioner's out-of-pocket medical and dental expenses. Petitioner's Proposed Developmental Services Cost Plan (Support Plan) with a development date of December 15, 2000, shows a proposed cost of $87,518.96. This amount included a $400.00 per month ($4,800.00 per year) in-home subsidy for basic living necessities as set forth in Subsection 393.0695(2), Florida Statutes. At the time the proposed support plan was submitted, the average cost for institutional placement was $71,424.44. On August 27, 1999, the Department issued the Developmental Services Home and Community-Based Services, WAIVER CLARIFICATION P.D.#99-05 REV02, Waiver Cost Review Policy with an effective date of October 1, 1999 (Policy Directive), which stated in pertinent part as follows: Effective October 1, 1999, individuals with an annual average cost in excess of Intermediate Care Facilities for persons with Developmental Disabilities (ICF/DD) shall only be enrolled into the waiver if the Secretary of the Department approves an exception. . . If the total costs to support an individual in the community exceed the ICF/DD cost, the plan must be submitted for review and approval or denial before the individual is added to the waiver. . . . On December 29, 2000, in accordance with the above Policy Directive, Petitioner's Proposed Support Plan was submitted to the Department's Tallahassee office for review. On January 19, 2001, Susan Dickerson, Chief concurred in the recommendation to approve the Proposed Support Plan with the following exceptions: Other Adaptive Equipment and stroller repairs and adaptations should be determined as medically necessary before approval. Physical therapy approved only for the amount in excess of coverage by Medicaid state plan. Family subsidy for $400.00 of general revenue funds monthly is not approved. WSC should explore other less costly options for providing services including attending a day program. (Emphasis furnished) On January 23, 2001, a reconsideration of Susan Dickerson's decision was requested, and on February 15, 2001, Kathleen A. Kearney, Secretary, concurred in the earlier recommendation, which included the same exceptions. By a Notice of Denial of Requested Service Funded Through General Revenue dated March 8, 2001, the Department advised Petitioner that her request for in-house subsidy had been denied because "Medical necessity for this service had not been demonstrated as defined in Chapter 59G-1.010(166), Florida Administrative Code." (Emphasis furnished). There was no other reason offered, including the unavailability of funds for this service under existing appropriations, given by the Department for denying Petitioner's request for the in-house subsidy. The Department has not alleged that funds were unavailable to provide the in-house subsidy to Petitioner. The final cost approved for the support plan was $82,718.96. The Petitioner has demonstrated a need for the in-home subsidy in the amount requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order approving Petitioner's request for in-home subsidy in the amount of $400.00 per month. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 4th day of February, 2002. COPIES FURNISHED: Susan Haubenstock-Greenburg, Esquire Post Office Box 1588 Tampa, Florida 33601-1588 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children And Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 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 12th day of September, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are: (1) whether the Agency for Health Care Administration (Agency) properly determined that Petitioners should reimburse South Bay Hospital 60 percent of the amount charged for the outpatient surgery performed on a workers' compensation claimant; (2) whether the charges were undocumented, excessive, erroneous, incorrect, and/or duplicative; (3) whether the Agency complied with applicable rules in making its decision; (4) whether the employee who made the determination for the Agency had been delegated the authority to do so; and (5) whether the Agency has adopted guidelines and procedures for its employees to follow in making decisions in reimbursement disputes decided under Section 440.13, Florida Statutes (2003).1
Findings Of Fact Based on the testimony of the witnesses, the evidence received at the final hearing, the parties' stipulations, the testimony and evidence from the post-hearing proceeding, and the record in this case, the following findings of fact are made: Petitioner, Mednet Connect, Inc. (Mednet), is a professional review service, which does business as Medical Review and Analysis Service (MAARS). As a professional review service, it contracts with insurance carriers, employers, and health care providers, including hospitals, to conduct specialized reviews of medical bills. Mednet's activities include auditing hospital bills and reviewing procedural codes and charges on hospital bills. Petitioner, Aspen Administrators (Carrier), is a subdivision of the workers' compensation carrier and is a carrier within the meaning of Subsection 440.02(4), Florida Statutes (2003). Petitioner, Florida Gold Citrus, Inc. (Employer or Florida Gold Citrus), is the employer of the injured workers' compensation patient, R.G. South Bay Hospital is a health care provider and is owned by Hospital Corporation of America (HCA). South Bay Hospital is located in Sun City Center, Florida, which is in the Tampa Bay area. The Agency is charged with the review and resolution of disputes regarding the payment of providers by carriers for medical services rendered to individuals receiving Workers' Compensation benefits. Pursuant to Subsection 440.13(11)(c), Florida Statutes (2003), the Agency has exclusive jurisdiction over reimbursement disputes and over utilization disputes. At all times relevant to this proceeding, the Agency included the Division of Health Quality Assurance (Division). Within the Division was the Bureau of Managed Health Care (Bureau) and within the Bureau was the Workers' Compensation Section or Unit. The foregoing units are identified in the Agency's organizational chart and comport with the requirements of Subsection 20.04(3), Florida Statutes (2003). At all times relevant to this proceeding and at the time of the hearing, Mr. Willis was employed by the Agency as an administrator. As an Agency administrator, Mr. Willis is the unit manager for the Workers' Compensation Unit of the Agency. The Workers' Compensation Unit is specifically designated to review and determine disputes brought pursuant to Subsection 440.13(7), Florida Statutes (2003). As unit manager, Mr. Willis is required to report directly to the bureau chief. Mr. Willis is responsible for administering the provisions of Section 440.13, Florida Statutes (2003), related to provider reimbursement disputes and utilization review programs. As unit manager, Mr. Willis supervises a team of professionals in the Workers' Compensation Unit of the Bureau, including the registered nurse consultants and the registered nurse specialists, who are charged with reviewing utilization and reimbursement disputes. These registered nurse consultants or registered nurse specialists are responsible for reviewing utilization and reimbursement disputes and writing determination letters based on their reviews. There are no written internal procedures or guidelines for registered nurse consultants to perform this task. However, the registered nurse consultants are required to "utiliz[e] [the] standards and policies" in the applicable Workers' Compensation laws and rules. This case involves a workers' compensation utilization and reimbursement dispute and a review of the same, conducted pursuant to Subsection 440.13(7), Florida Statutes (2003). The dispute arose out of what the Carrier perceived to be excessive and incorrect medical bills submitted to the Employer and the Carrier by South Bay Hospital, the health care provider that treated R.G., an injured workers' compensation employee. On January 5, 2004, an employee of Florida Gold Citrus, "R.G.," sustained a work-related injury while working. Following the accident, R.G. was taken to South Bay Hospital where she was diagnosed with a fractured humerus and dislocated elbow. R.G. was also determined to have "other and unspecified injury to her elbow, forearm, and wrist." R.G. received emergency treatment at South Bay Hospital, for which HCA billed the Carrier $3,370.19. South Bay Hospital's charges for the emergency treatment on January 5, 2004, were initially at issue, and information concerning those changes will be addressed only as they relate to the later hospital charges. However, all issues surrounding the hospital charges for the January 5, 2004, services have been resolved and are no longer in dispute. As a result of her work-related injury, R.G. was scheduled for outpatient surgery at South Bay Hospital on January 23, 2004. On that date, she had a scheduled outpatient surgery at the hospital, an open reduction, internal fixation (ORIF) performed to repair the fractured arm. On or about April 26, 2004, the hospital submitted to the Employer and the Carrier a bill of $24,013.93 for this outpatient surgery. Petitioners are statutorily required to review all bills, invoices, and other claims for payment submitted by health care providers to identify over-utilization and billing errors. Upon initial receipt and review of the bills for each date of service, the Carrier noted several discrepancies and irregularities, including charges that were in excess of what it deemed to be usual, reasonable, and usual and customary; duplicate charges; charges for undocumented services; charge explosion; and charge unbundling. Therefore, the Carrier forwarded the bills to Mednet for analysis. The term "bundling" means or refers to an all- inclusive charge for a particular procedure. Under the health industry standard, all items and services needed to accomplish a procedure are included in one charge. The term "unbundling" means that a charge included in the "packaged bundling," is also separately billed. When this occurs, it is considered a duplicate charge. According to the Complete Global Service Data for Orthopedic Surgery, Volume 1, 2004, if services are "bundled," they are billed as part of the total package, and it is inappropriate to then bill separately for those services. This publication was published by the American Academy of Orthopedic Surgeons and is included as a reference document in Florida Administrative Code Rule 69L-7.020, which adopts and incorporates by reference the Florida Workers' Compensation Health Care Provider Reimbursement Manual (Health Care Provider Reimbursement Manual). The Health Care Provider Reimbursement Manual is listed as a resource document in the Reimbursement Manual for Hospitals. Ms. Reynolds is familiar with the Complete Global Service Data, 2004 Edition, and has used it in her role as a registered nurse consultant. In the instant case, however, she did not use this as a reference document. The term "charge explosion" means a procedure by which a hospital's billing department automatically includes a certain list of medications, supplies, and equipment on a patient's hospital bill for a certain procedure, whether those items are actually used or not. In such instances, no credit is given if any of the listed supplies, medications, and/or equipment are not used. Mednet received the bill for the January 23, 2004, date of service on May 6, 2004. Upon analysis of the bill, Mednet specifically identified what it perceived to be numerous billing irregularities associated with each date of service. Mednet uses a third party computer software to assist it in analyzing hospital bills. This computer software is the industry standard and uses industry benchmarks or reference data to assist in determining the usual and customary charge for a procedure, treatment, or service. Based on its initial review of the hospital bill, Mednet concluded that the hospital bill included billing for multiple and duplicate charges for the same items and services; charges for treatment, supplies, and services that were not documented by medical records as having been delivered or used in the treatment of the patient; "charge explosion"; incorrect charges; and inflated, excessive, and unreasonable charges, when compared with those of other similar hospitals in the area for the procedure. On May 12, 2004, Mednet forwarded an Explanation of Review (Explanation of Review or EOR) to HCA in relation to the January 23, 2004, date of service. The Explanation of Review reflected an adjusted reimbursement amount of $4,316. The Explanation of Bill Review, otherwise referred to as the Explanation of Review, is defined as the "codes and written explanation of an insurer's reimbursement decision sent to the health care provider." On the Explanation of Review related to the January 23, 2004, date of service, and submitted to South Bay Hospital, Mednet adjusted or disallowed the amount billed for most, if not all, of the procedures, supplies, and equipment listed on the health care providers' itemized bill. On the Explanation of Review, next to each billed amount, Mednet listed one or more codes, which indicated the reason that amount was either disallowed or reduced. The three codes used on the Explanation of Review were 017, S01, and S04. The EOR indicated the meanings of the various codes as follows: 017 Review based on guidelines set forth per the applicable State Workers' Compensation Fee Schedule S01 The fee was reviewed to a standard or reasonableness based on comparisons to industry benchmarks of charges and reimbursement for comparable services in the providers' area S04 This item is packaged or bundled into another basic service or surgical procedure fee performed on the date of service and, therefore, additional reimbursement is disallowed. As a result of its analysis of the provider's bill, Mednet advised the Carrier to pay the amount that Mednet determined to be the usual and customary charge for this particular procedure performed on January 23, 2004, by similar hospitals in the Tampa Bay area, $4,316.00. Based on Mednet's analysis and advice, the Carrier reimbursed HCA $4,316.00 on or about May 20, 2004. Upon completion of its analysis, Mednet, acting for the Carrier, also notified HCA, of its determination that the Carrier should pay HCA only $4,316.00, and not sixty percent of the charges billed, $24,013.93. On or about May 24, 2004, HCA forwarded a request for reconsideration to Mednet in regard to the adjusted reimbursement for both the January 5, 2004, and the January 23, 2004, services. Soon after receiving the request, Mednet began the reconsideration. As part of that process, on or about June 3, 2004, Mednet requested that the hospital provide Mednet with the "medical records and other documentation" to support its charges and billing, but did not receive it until months after the Petition was filed. The medical record would have assisted the Carrier in connection with its review of the hospital's billed charges. Without the medical records or other supporting documents related to the services rendered to the claimant on January 23, 2004, Mednet had no way of verifying if the bill from South Bay Hospital and/or HCA contained billing errors, excessive charges, or duplicate charges. On or about June 1, 2004, only a few days after requesting that the Carrier reconsider the adjusted reimbursement, HCA filed a Petition with the Agency. The Petition requested that the Agency resolve the reimbursement dispute related to both the January 5 and 23, 2004, charges. When the Petition was filed with the Agency, Mednet was still in the process of completing its reconsideration of the charges related to the January 5, 2004, and January 23, 2004, dates of service. The Petition related to the January 23, 2004, date of service, stated in relevant part the following: Per a review of this claim we have found it was paid incorrectly pursuant to the Florida's Workers' Compensation Reimbursement Manual for Hospitals, 2004 edition which refers to a facility/Hospital in ([R]ule 38F-7.501). P.8 Section 10: Reimbursement C. Outpatient Charges (1) All medically necessary charges related to scheduled outpatient surgeries shall be reimbursed at 60 percent of the hospital's charges. Total charges for this claim are $24,013.93. We expected 60% of the billed charges ($14,408.35)[.] We received payment of $4,316.00. This claim is underpaid $10,092.35. In addition to the foregoing, the Petition stated that the claim was billed on February 12, 2004, but the initial payment was not made until May 25, 2004. According to the Petition, this delay in payment violated Subsection 440.20(2)(b), Florida Statutes (2003), which requires the carrier to pay, disallow, or deny all medical, dental, pharmacy, and hospital bills submitted to the carrier no later than 45 calendar days after the carrier's receipt of the bill. Attached to the Petition that was submitted to the Agency were the following documents related to the January 23, 2004, date of service: (1) South Bay Hospital/HCA's completed UB-92, the form on which charges must be submitted; (2) South Bay Hospital's itemized bill; (3) the Explanation of Review, which had been previously submitted to the provider by Mednet, on behalf of the Carrier; and (4) the Explanation of Benefits, prepared by the Carrier and previously submitted to the provider. The UB-92 included the date and description of the services provided, the Current Procedural Terminology (CPT) Codes, and the charges for the services. Also, there was a notation on the UB-92 that the itemized bill and the medical records were attached. As noted on the UB-92, the itemized bill for the January 23, 2004, date of service was attached to the Petition. However, the medical records were not attached to the UB-92 nor was it provided to the Agency prior to its resolution of the reimbursement dispute. The Petition related to the January 23, 2004, date of service, was assigned to Ms. Reynolds, a registered nurse consultant, employed by the Agency and assigned to its Bureau of Rehabilitation and Medical Services. Ms. Reynolds is a registered nurse, who has a bachelor's degree in nursing and a master's degree in surgical nursing. As a registered nurse consultant, Ms. Reynolds' official job responsibilities include reviewing and making determinations regarding disputes under Subsection 440.13(7), Florida Statutes (2003). In carrying out her job responsibilities, relative to assigned disputes, Ms. Reynolds first reviews the petition and validates that it is a workers' compensation claim. Ms. Reynolds also reviews applicable workers' compensation laws and rules, including Section 440.13, Florida Statutes (2003) and Florida Administrative Code Rule 69L-7.501. As part of Ms. Reynolds' review, she refers to American Medical Association's CPT Code to make sure that the CPT Code listed on the UB-92 is correct for the procedure described. If Ms. Reynolds determines that it is necessary in a given case, she may also refer to medical textbooks. Ms. Reynolds developed a checklist that she utilizes in the review process. On the checklist, Ms. Reynolds records relevant dates and various components to ensure compliance with the required statutory and rule provisions. Pursuant to Subsection 440.13(7)(b), Florida Statutes (2003), within ten days after receipt of the Petition and all documents, the Carrier must submit to the Agency all documentation substantiating the Carrier's disallowance. On or about June 10, 2004, Mednet provided HCA and the Agency with a detailed response regarding the January 5, 2004, date of service. This was within ten days of the Carrier's receiving the Petition related to the January 5, 2004, charges. With regard to the Petition related to the January 23, 2004, date of service, Mednet and/or the Carrier submitted no documentation to substantiate the Carrier's disallowances to the Agency within ten days of receipt of the Petition. Petitioners do not dispute that they failed to provide documentation to substantiate the Carrier's disallowance within ten days of receiving the Petition. However, Petitioners believed that because HCA's Petition did not include the medical records referred to on the UB-92, HCA had not, in fact, filed the Petition and "all documentation." Thus, in Petitioners' view, the ten-day period had not started to run. Despite this opinion, neither Mednet nor the Carrier corresponded or otherwise communicated with the Agency to advise that they had requested and were waiting to receive the medical records from South Bay Hospital. Mednet provided HCA and the Agency with a detailed response regarding the Petition related to the January 23, 2004, date of service, on or about June 29, 2004, more than two weeks after the Agency made its determination. Mednet did not have or rely on the hospital record for this response. When the Agency received the response, it had already made its determination. Ms. Reynolds reviewed the Petition related to the January 23, 2004, date of service and validated that it was a Workers' Compensation claim. Based on that review, Ms. Reynolds believed this was a reimbursement dispute. She then reviewed the Explanation of Benefits prepared by the Carrier and the Explanation of Review prepared by Mednet, that were submitted with the Petition. Both the Explanation of Benefits and the Explanation of Review noted the Carrier's reasons for the disallowance and/or reduction of the charges. However, because the Carrier failed to submit documents to substantiate its disallowance and/or adjustment, Ms. Reynolds apparently concluded that there was no basis for the Carrier's doing so. Having failed to receive any documentation from the Carrier, Ms. Reynolds did not consider or independently investigate the validity of the disallowance and/or adjustment. Furthermore, Ms. Reynolds made no determination as to whether the charges of South Bay Hospital were reasonable. Prior to issuing the determination letter, Ms. Reynolds believed that she had all the information she needed. Therefore, she did not request additional information from the health care provider such as the medical records or use documents which were in the Agency's possession and accessible to her. Moreover, Ms. Reynolds did not refer to the CPT Code Manual because she believed that the procedures performed, as reflected on the UB-92 Form, appeared to be consistent with the diagnosis that was presented. The UB-92 for the January 23, 2004, date of service, indicated that the outpatient surgical procedure was CPT Code 24665, which indicated "repair radius fracture." At some point after the Agency issued the determination letter, Mednet expressed concern that this code appeared to be a discrepancy with the apparent diagnosis and treatment rendered on January 5, 2004, which indicated treatment related to the humerus. Given that the humerus is the only bone in the upper arm and the radius is one of two bones in the lower arm or forearm,13 Mednet's concern was reasonable and could perhaps have been definitively cleared up by reviewing the medical record of R.G. However, Mednet never raised this concern in its Explanation of Review. In making the decision relative to the Petition, Ms. Reynolds appropriately relied on Section 440.13, Florida Statutes (2003), and the Florida Workers' Compensation Reimbursement Manual for Hospitals (Reimbursement Manual for Hospitals), 2004 Edition, which is incorporated by reference into Florida Administrative Code Rule 69L-7.501. Subsection 440.13(12), Florida Statutes (2003), provides in pertinent part: . . . All compensable charges for hospital outpatient care shall be reimbursed at 75 percent usual and customary charges. . . . It is the intent of the Legislature to increase the schedule of maximum reimbursement allowances for selected physicians effective January 1, 2004, and to pay for the increases through reductions in payments to hospitals. Revisions developed pursuant to this subsection are limited to the following: * * * 3. Outpatient reimbursement for scheduled surgeries shall be reduced from 75 percent of charges to 60 percent of charges. The Reimbursement Manual for Hospitals provides the guidelines for the maximum reimbursement allowance, including the reimbursement for outpatient services. Section 10, C. of the Reimbursement Manual for Hospitals, states: Section 10: Reimbursement. C. Outpatient Charges All compensable charges for hospital outpatient care shall be reimbursed at 75 percent of the hospital's charges with the following exceptions: 1. All medically necessary charges related to scheduled outpatient surgeries shall be reimbursed at 60 percent of the hospital's charges. The Reimbursement Manual for Hospitals defines the term "charge" as "the dollar amount billed." The Reimbursement Manual for Hospitals defines "charge master" as a comprehensive-coded list "developed by a hospital or an ambulatory surgical center representing the usual charges for specific services." Such document is required to be developed and maintained by the healthcare providers in accordance with Subsection 440.13(12)(d), which provides that "each health care provider . . . receiving workers' compensation payments shall maintain records verifying their usual charges." Ms. Reynolds interpreted the above-quoted provisions of the Reimbursement Manual for Hospitals and Subsection 440.13(12), Florida Statutes (2003), to require the carrier to reimburse the provider 60 percent of charges billed by the hospital, irrespective of whether the charges were the hospital's usual charges or were reasonable. Consistent with the foregoing interpretation, Ms. Reynolds multiplied the hospital's total charges, as reflected on its bill, by 60 percent and determined that the Employer and the Carrier must pay the hospital 60 percent of $24,013.93 or $14,408.36. Based on the payment of $4,316 that the Carrier made on May 24, 2004, Ms. Reynolds determined that the outstanding balance due was $10,092.36. Ms. Reynolds' interpretation of applicable Workers' Compensation statutory provisions and the Reimbursement Manual for Hospitals is inconsistent with the Agency's interpretation of those provisions. The Agency has interpreted the "charges" referred to in Subsection 440.13(12)(b)3., Florida Statutes (2003), and the Reimbursement Manual for Hospitals to mean the hospital's "usual charges," and not "any" charges or the "usual and customary" charges. The Agency's analysis and resolution of a disputed reimbursement requires a determination, at a minimum, of what the hospital's usual charges are for the services or procedures and whether the billed charges are reasonable. The hospital's usual charges can be verified by looking at its charge master. In this case, the Agency had the charge master for South Bay Hospital and that charge master was accessible to Ms. Reynolds. However, Ms. Reynolds did not review the charge master for South Bay Hospital to determine its "usual charges" for the services and procedures it billed for the January 23, 2004, date of service. The determination letter dated June 11, 2004, signed by Ms. Reynolds, stated that the reimbursement for the services rendered on June 23, 2004, "has not been paid correctly and finds an improper disallowance/improper adjustment of payment to provider has been made." The determination letter also refers to the statutory and rule requirement that carriers must pay, disallow, or deny bills within 45 days. The Agency's determination appears primarily based upon Ms. Reynolds' perception that the Carrier violated this requirement. However, this reason was abandoned by the Agency at hearing and through the testimony of its expert witness. Petitioners contend that the Agency's secretary is designated to make final agency decisions, and, in order for a Agency employee to issue a determination letter in a reimbursement dispute, the Agency's secretary must delegate such authority to that employee. Petitioners claim that in absence of such letter or other specific delegation, the decision made by Ms. Reynolds cannot be properly attributed to the Agency. Despite this assertion, Petitioners presented no evidence to support their position. Notwithstanding any error she made, Ms. Reynolds' review of the reimbursement dispute and issuance of the determination letter were within the scope and consistent with her assigned duties as a registered nurse consultant in the Workers' Compensation Unit. In performing those duties, Ms. Reynolds was properly acting on behalf of the Agency, and her actions with regard to the Petition appeared to be ratified by the Agency.14 Mednet's analysis determined what the services rendered at South Bay Hospital on January 23, 2004, would have cost if they had been performed in a different setting (i.e. inpatient surgery versus same day outpatient surgery). Mednet's analysis concluded that if this same surgery had been performed on an inpatient basis instead of an outpatient basis, the hospital would have been limited to a maximum reimbursement allowance of about $3,400, under the Workers' Compensation laws of most states, including those of Florida. In its analysis, Mednet considered whether the charges billed by South Bay Hospital were the "usual and customary" charges for the services rendered. The term "usual and customary charges" is a term used in the health care industry and refers to the average price for a particular service or procedure charged by similar healthcare providers in the same geographic area. The usual and customary charge for this procedure in the area where South Bay Hospital is located, the metropolitan statistical area of Tampa-St. Petersburg-Sarasota, is $4,574.08.15 In this particular case, by comparison South Bay Hospital's charge for the surgical procedure alone to those of other hospitals in the area, appears to be unreasonable and excessive. South Bay Hospital charged $12,548.00 for CPT Code 24665, alone, and $24,013.93 for the entire one-day outpatient visit. Mednet has access to data banks and reports of hospitals' costs, which come from mandatory reports which both the state and federal governments require them to file annually. Mednet performed an analysis of this data and determined that South Bay Hospital's costs for performing this procedure is approximately $3,518.01. Mednet's analysis determined that based on South Bay Hospital's own departmental cost to charge ratios, the Non Fee Schedule procedures should have been billed at $14,771.60 and that the fee schedule items that are paid per the Florida Fee Schedule total $161.00. Accordingly, the health care provider's charges should have been $14,771.60. Sixty percent of this amount would be $8,863. The data upon which Mednet based its analysis is reliable and valid. However, Mednet's analysis made no determination of South Bay Hospital's usual charge for the services performed on June 23, 2004. The Reconsideration Process In its initial response to the Agency regarding the Petition, the Carrier indicated that the health care provider had requested reconsideration of the disallowance or adjustment of certain charges. Because the request was made pursuant to Florida Administrative Code Rule 59A-31.001(5), the Carrier believed that the parties should have been allowed to attempt to resolve the matter prior to the Agency undertaking the dispute resolution process. Florida Administrative Code Rule 59A-31.001 prescribed a procedure whereby health care providers and carriers may attempt to resolve reimbursement issues prior to submitting requests for utilization or reimbursement disputes to the Agency. The rule provides that a provider may request the carrier to reconsider charges that are reduced or disallowed and that this reconsideration process must be sought by the healthcare provider prior to sending a request for resolution to the Agency. Mednet contends that the "reconsideration process" provides the carrier with an opportunity to resolve most concerns without the intervention of the Agency. By reviewing and acting on the Petition prior to completion of the reconsideration process, Petitioners assert that the Agency shortcut the system outlined in Florida Administrative Code Rule 59A-31.001(5) and deprived the Carrier of an opportunity to reconsider its disallowance and adjustments. The June 11, 2004, determination letter indicated there was no need for the Agency to delay resolving the reimbursement dispute pending the outcome of the reconsideration process. According to the letter, the Carrier's reliance on Florida Administrative Code Rule 59A-31.001 was misplaced because "the rule is currently being rescinded from the Florida Administrative Code as it is without statutory support." Contrary to Petitioners' view that the Agency should have complied with Florida Administrative Code Rule 59A- 31.001(5), for the reasons discussed in the Conclusions of Law, at the time the Petition was filed, the rule had been repealed and was no longer in effect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order which: Finds that South Bay Hospital's charge for the January 23, 2004, date of service, was $14,771.60; Finds that the Carrier, Aspen Administrators, is required to pay 60 percent of South Bay Hospital's charge, or $8,863.00; Gives the Carrier, Aspen Administrators, credit for the $4,316.00, it has already paid; and Requires the Carrier to pay the remaining balance of $4,547.00. DONE AND ENTERED this 9th day of August, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 9th day of August, 2006.
Findings Of Fact At all times material hereto, Respondent was a licensed operator of a Family Day Care Home located at 2927 Monte Carlo, Orlando, Florida. Licenses to operate a Family Day Care Home are issued by the Department of Health and Rehabilitative Services for periods of one year. Respondent's license was first issued in 1991 and was last renewed on June 21, 1994. It was valid through June 21, 1995. Respondent's Family Day Care Home has been closed voluntarily since July 18, 1994. Respondent submitted an application to renew her license prior to its June 21, 1995 expiration date. Petitioner denied Respondent's license renewal application by letter dated June 21, 1995. Petitioner has not cited Respondent for any code violations in her home at the time of the renewal. At the time of Respondent's application for license renewal, she met all training requirements for an operator of a family day care. In November of 1993, while in the care of Respondent, a child had suffered burns while at Respondent's family day care home. No charges, criminal or administrative, were filed against Respondent and her license was renewed the following year. In mid-June, 1994, Vanecia McCree, a 24-month old child began attending Respondent's day care, along with her brother and sister. On July 18, 1994, the child had been dropped off at Respondent's family day care home by her mother, Michelle McCree, at approximately 10:30- 11:00 a.m. When the mother dropped off the child on July 18, 1994, she informed Respondent that she wanted the child to change from regular diapers to pull-ups. She requested that Respondent to start potty training the child. Respondent told Ms. McCree that the child was not ready for pull-ups yet because she displayed no signs of using the restroom on her own. When Respondent first attempted to have the child use the bathroom on the morning of July 18, 1994, the child appeared "hysterical" and "frantic" and appeared to be in pain. When Respondent asked the child if she was in pain, the child nodded her head in the affirmative. This caused Respondent to be very concerned about the child's condition. Respondent did not call the mother or Department of Health and Rehabilitative Services at that point because she had been informed by the child's grandmother that the child had "knots" in her genital area and that the child had an infection. Respondent had been informed by the child's brother that the child had been taken to the hospital the previous night. The child was under Respondent's constant supervision the entire day. The only time during the day that the child was not constantly in the same room as Respondent was while the child was sleeping. During the time the child was napping, Respondent was out of the room during certain periods, but constantly kept the child in her sight. Throughout the course of the day, the child never fell, never appeared to sustain any injury, and never had an outburst which would indicate she had been injured. At approximately 4:45 p.m., when Respondent took the child to the restroom, she discovered spots of blood in the child's pull-up diaper. Upon noticing the spots of blood in the child's pull-up diaper, Respondent immediately telephone the child's grandmother, Barbara McCree. Respondent telephoned the child's grandmother because the grandmother was the person who arranged for the children to attend her facility. Respondent told Barbara McCree that she had discovered "a little blood" in the child's diaper and that the child should be taken to the hospital. Barbara McCree told Respondent that she would call the child's mother to pick up the child, and requested that Respondent save the pull-up diaper and give it to the mother. The mother arrived at Respondent's family day care home at approximately 5:10 p.m. to pick up her children. Upon her arrival, Ms. McCree did not examine the child to see where the blood in the diaper might be coming from. Respondent was upset but gave the pull-up diaper that contained the spots of blood to the mother upon her arrival. Ms. McCree took the child home prior to examining her. When she checked the child, her diaper was full of blood. Ms. McCree took the child to the hospital where she was examined, and on the following day had stitches to close a laceration in her vaginal area. Because of the nature of the injury, it was elected to take the child to the operating room for examination under anesthesia; however the child had eaten two bags of potato chips and some Coke during the extended stay in the emergency area causing the delay in performing the surgical procedure. There was no significant bleeding at the time of the initial examination on July 18, 1994. The injury was corrected surgically on the following morning. It has not been determined when the injury to the child occurred. After extensive examination of the genital area, the injury appeared to be most consistent with a traumatic injury. Following the completion of the investigation, no criminal charges were filed, nor any administrative action taken against Respondent's license. Petitioner's decision to deny Respondent's license renewal was based upon the Licensing Supervisor's belief that the injury to Venecia McCree occurred while the child was in Respondent's care. Respondent's license renewal application was not denied based on any other reason. There was no medical determination that the injury to the child had occurred while the child was in Respondent's care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's application for renewal of her Family Day Care license be GRANTED. DONE and ORDERED this 14th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 14th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4036 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Petitioner did not file proposed findings. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 (in part), 39 (in part), 40 (in part), 41, 42, and 43. Rejected as irrelevant and immaterial or subsumed: paragraphs 7, 8, 38 (in part), 39 (in part), 40 (in part). COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Robert J. Crohan, Jr., Esquire Wade Coye and Associates 2511 Edgewater Drive Orlando, Florida 32804 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether Petitioner Monroe Lee Kelly, the minor son of his personal representative and mother, Kimberly Maffei Kelly, should immediately receive developmental services or remain on a waiting list for such services.
Findings Of Fact Monroe Lee Kelly is three years old and displays verbal apraxia. Verbal apraxia is delayed speech development. He became a client of Developmental Services on July 28, 2000, after a legislatively designated funding cut-off date of July 1, 1999. Monroe Kelly was receiving speech therapy through Children's Medical Services. However, because he turned three years old he no longer qualifies for services under the medical program even though his apraxia is still a problem. Therefore, the medical program referred Monroe Kelly to Developmental Services for evaluation. Petitioner's mother was also informed by the Department that her son could receive speech therapy to ameliorate this condition from the school system. Verbal apraxia puts Monroe Lee Kelly at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Monroe Lee Kelly as a client because of his risk status. His mother, for personal reasons, did not apply for benefits through the Medicaid Waiver program. Thus Monroe Lee Kelly is a client of the Developmental Services Program of the Department and is therefore eligible to receive developmental services from that program. The only question is whether Monroe Lee Kelly should receive those services for which he is eligible immediately or remain on the waiting list. Currently there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 2000. A long and complex chain of events and circumstances led to the situation faced by Monroe Lee Kelly. Prior to the 1999 legislative session and after federal litigation, the Department identified 23,361 Developmental Services clients who were enrolled in the developmental services program but were receiving inadequate services. The Governor, members of the Legislature, and the Department met to address this problem and jointly proposed to the Legislature for fiscal year 1999-2000, a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program, because that program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on them must be prioritized. The Legislature directed the Department to prioritize these limited funds by requiring that they be spent first on providing full services to the 23,361 clients already known to the Department as of July 1, 2000. The Department implemented this mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 2000, would receive services. All others would be put on a waiting list. The Department is currently working on a Legislative Budget Request for the coming year which will address the needs of clients, such as Monroe Lee Kelly who came into the system after July 1, 2000. Even so, Monroe Lee Kelly is not eligible for the Medicaid Waiver since Ms. Kelly has declined to apply for Medicaid. The funds she seeks come from another source, the Individual and Family Support appropriation. Nevertheless, for the reasons set forth below, the result in this case is the same as if her child had been on the Medicaid Waiver. In order to consistently apply the legislative intent behind this appropriation scheme to all Developmental Services clients, the Department has applied the prioritization described in paragraph 7, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. The prioritization is required because, in the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained stable, the new client base has increased by approximately 8,000 clients since July 1, 1999, and the Department can only provide funds to new clients by withholding services from existing clients who received these services in past years. An untenable result. Moreover, the interests of fairness require that the allocation of Developmental Services money be made on a consistent basis. This is particularly true inasmuch as many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Finally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys entrusted to it by the Legislature in the same manner as the Medicaid Waiver moneys is not unreasonable or unfair. Because Monroe Lee Kelly became a client after July 1, 1999, he can only receive services if he is in crisis. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. Monroe Lee Kelly met none of the foregoing criteria. Consequently, the Department could not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Monroe Lee Kelly on the waiting list of clients to be served by the Department's Developmental Services Program. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of December, 2000. COPIES FURNISHED: Kimberly Maffei Kelly 9127 Foxwood Drive Tallahassee, Florida 32308 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue This is a certificate of need proceeding in which each of the three Petitioners seeks to be awarded a certificate of need for the construction of a new 118-bed nursing home in AHCA District 1, Subdistrict 1, comprised of Escambia and Santa Rosa Counties. Each Petitioner asserts entitlement to the award on the basis that its application is, for a variety of reasons, the best of the three competing applications. The ultimate issue to be resolved is a determination as to which of these three applicants best meets the statutory and rule criteria for the issuance of a certificate of need in response to the projected numeric need of 118 beds.1
Findings Of Fact Findings stipulated to by all parties In their prehearing stipulation, the parties stipulated to the following factual matters: There is an available fixed bed need pool for 118 beds for the applicants in this proceeding. No party is asserting that there are special or unusual circumstances which justify the award of more than 118 beds to the applicants to this proceeding. Each of the applicants has applied to construct a new, 118-bed nursing home in District 1, Subdistrict 1. No applicant has applied for partial approval of its application. The letters of intent, corporate resolutions, and newspaper publications of each applicant were timely filed and legally adequate as to required content, format, and accuracy. The letters of intent, corporate resolutions, and newspaper publications are not at issue in this proceeding. The CON application and omissions responses of each applicant were timely filed with AHCA and with the local health council. Any party may introduce into evidence at the Final Hearing the following portions, pages, or sections of its respective CON application without a foundation, authenticity, or corroborating witness: (1) cover letter and cover page; (2) the “identification of the parties” page; (3) the certification of the applicant and the CON remittance form; (4) the check for the application fee; (5) the Corporate Resolution; (6) the newspaper publication; (7) the Letter of Intent; (8) the narrative description of the dietary program; and, (9) the narrative description of residents rights. The information contained on these pages is deemed to be true and correct. The following AHCA correspondence may be admitted into evidence without a foundation, authenticity, or corroborating witness: (1) the letters accepting the letter of intent for each applicant; (2) the omissions letter sent to each applicant; (3) the completeness letter sent to each applicant; the decision letter, not including the State Agency Action Report, sent to each applicant. The information contained in these documents is deemed to be true and correct. Each applicant may submit into evidence without a foundation, authenticity, or corroborating witness the audited financial statements included in its CON application or omissions response. The information contained in the audited financial statements is deemed to be true and correct. The information contained on Schedule 1 of each application, Estimated Project Cost, is correct and true and will require no proof at hearing. The data contained on Schedule 1 may form the basis for comparison between the applications. The information contained on Schedule 2 of each application, Capital Projects and Expenditures Approved, Under Development, or Planned, is correct and true and will require no proof at hearing. The data contained on Schedule 2 shall not form the basis for comparison between the applications, but may be considered in determining the financial feasibility of each applicant. Each applicant can achieve the total facility utilization projected on Schedule 5 of its application. The rate of fill and the steady state occupancy of the applicants shall not form the basis for comparison between the applications. Each applicant can hire the number of employees proposed in Schedule 6 of its application at the salary shown on Schedule 6. Each applicant’s architectural design meets the required design standards for licensure and operation as a nursing home. Each party may introduce the architectural plans and the narrative related to its architectural plans, including the Project Completion Forecast, into evidence without a foundation, authenticity, or corroborating witness. Architectural design may form the basis for comparison between the applications. (Emphasis added.) The Petitioners and their applications Beverly Beverly is proposing to construct a 118-bed freestanding community nursing home to be located in Santa Rosa County. The facility will be 49,584 gross square feet in size and will have a total project cost of $6,512,338.00. Services to be provided include 20 Medicare certified and subacute care beds, a dedicated 20-bed Alzheimer's care unit, care to persons with AIDS, respite care, hospice care, outpatient therapy, comprehensive medical rehabilitation, and general and restorative care. As a part of its proposal, Beverly has made a commitment to provide 0.2 percent of its gross revenues to charity/indigent care and will donate a $10,000 geriatric research fund to Florida A & M University School of Nursing if this project is approved. The applicant in this proceeding is Beverly Savana Cay Manor, Inc., which is a wholly owned subsidiary of Beverly Enterprises-Florida, Inc., d/b/a Beverly Gulf Coast-Florida, Inc., which is itself a wholly owned subsidiary of Beverly Health and Rehabilitation Services, Inc. There is no programmatic or operational distinction as to which subsidiary owns any particular nursing home in the Beverly family of nursing homes. Rather, all of the facilities are treated as being "a member of the Beverly family." The Beverly family of nursing homes is the largest provider of nursing home care in America, owning and operating 625 nursing homes nationwide. It owns and operates 65 nursing homes in Florida. There are four main subsidiaries of the Beverly parent company: Beverly Health and Rehabilitation, which provides the core nursing home services; Pharmacy Corporation of America, which operates 65 pharmacies around the country; Spectrum, which is a provider of therapy services; and American Transitional Hospitals, which provides subacute care in both hospitals and nursing homes. Each of the nursing homes in the Beverly family benefits from the expertise brought to the corporation through these subsidiaries. As a member of the Beverly family, a nursing home enjoys the benefits of central administration; support in the areas of accounting, legal, financial management, personnel, public relations; access to experts in nursing home administration, nursing, dietary services, therapy, and other areas; and central purchasing. HealthPrime HealthPrime was founded in 1989 by Douglas Mittleider and Michael Foxworthy for the purpose of owning, operating, and managing long-term health care facilities. HealthPrime was formed on the belief that there was a need in the industry for a company to deal with troubled health care facilities. HealthPrime initially targeted bankrupt facilities, distressed facilities, and facilities in receivership. HealthPrime later expanded its services to include approved facilities that were having trouble getting built or opened. In handling troubled facilities, HealthPrime has developed expertise in various areas of specialized care. HealthPrime is attempting to use that expertise in areas where available need is shown. At the time of submission of its application, HealthPrime owned, operated, or managed 36 facilities in several states. Approximately two-thirds of those facilities are owned by HealthPrime. HealthPrime and its principals own only one facility in the State of Florida. Four other facilities in Florida are managed by HealthPrime. Based on its experience in acquiring troubled facilities and troubled certificates of need, HealthPrime hopes to take what it has learned and develop a quality nursing home program from beginning to end. HealthPrime proposes to construct a 118-bed freestanding community nursing home in Santa Rosa County, Florida. HealthPrime’s facility will have 50,750 gross square feet and will cost $6,350.037.00. HealthPrime’s facility will have a 20- bed geriatric psychiatric unit and a 20-bed comprehensive rehabilitation unit. HealthPrime will not have a dedicated Alzheimer’s Disease unit, although it will treat patients with Alzheimer’s Disease in the general population. HealthPrime proposes to provide a wide range of services at the proposed facility. These services include subacute care, respite care, Alzheimer’s Disease and related dementia services, geriatric psychiatric services, and comprehensive medical rehabilitation services. HealthPrime is proposing to provide 0.1 percent of its gross revenue to charity/indigent care. HealthPrime intends to own and manage the proposed facility. HealthPrime manages its facilities through a decentralized day-to-day operational structure, while utilizing the centralized financial services located at the company’s corporate office. Each facility develops its own autonomous identity in the community served, strengthening the bond between the facility and the community. An experienced corporate team provides the management direction and support which helps each facility develop and implement high quality programs. Life Care Life Care is a Tennessee corporation authorized to do business in the State of Florida. Life Care is the largest privately owned nursing home company in the country, having over 180 facilities in 27 states. It operates in a decentralized fashion, allowing each of its facilities to operate independently, yet with the overall support of a large company. Life Care owns four nursing homes in the State of Florida. It also operates three other nursing homes in Florida. The first Life Care facility in Florida was licensed in 1979. Life Care has grown continuously since its inception, adding nursing homes on a regular basis. It has never sold a facility; rather, it is committed to its projects for the long term. A cornerstone of the Life Care operations is its “Missions and Values Statement.” This statement indicates a commitment by Life Care personnel to the company’s residents, its management, its associates, and to the community. Life Care personnel adopt the Missions and Values Statement and put it into practice. A visible example of this fact can be found in the “Whatever It Takes” campaign, a program that encourages employees to involve themselves personally in the lives of nursing home residents. Life Care proposes to construct a 118-bed freestanding community nursing home to be located in Pensacola, Escambia County, Florida. Life Care’s project will have 49,777 gross square feet and will have a total project cost of $7,223,000.00. Life Care is proposing to have a 20-bed Alzheimer’s Disease unit, to provide care to persons with AIDS, to have a 10-patient adult day care center, to provide hospice care and respite care, to provide comprehensive rehabilitation, to provide general and restorative care, and to provide some subacute care. Life Care does not propose to provide charity or indigent care. The applicable review criteria The paragraphs which follow address the extent to which each of the competing applications satisfies the applicable review criteria. To facilitate an understanding of the relationship of the facts to the numerous criteria, each of the applicable criteria are set forth in underscored text immediately before the findings of fact that relate to it. Section 408.035(1), Florida Statutes. The agency shall determine the reviewability of applications and shall review applications for certificate of need determinations for health care facilities and services, hospices, and health maintenance organizations in context with the following criteria: The need for the health care facilities and services and hospices being proposed in relation to the applicable district plan and state health plan, except in emergency circumstances which pose a threat to the public health. Local health plan provisions Allocation Factor I. Preference should be given in cases of otherwise equal CON applications within a subdistrict to the applicant serving the county with the greatest percentage of population aged 65 and over living in poverty. According to the 1990 United States census data, which is the most recent available data, the percentage of the population aged 65 and over who live in poverty is 15.6 percent in Escambia County and 15.3 percent in Santa Rosa County. Life Care is the only applicant proposing a facility in Escambia County, so it is the only one of the Petitioners that meets the requirements of this allocation factor. However, because of the small difference in the two percentages and because of the age of the data,5 not a great deal of weight is given to this allocation factor. Allocation Factor II. Preference should be given in cases of otherwise equal CON applications within a subdistrict to the applicant agreeing to serve a percentage of Medicaid patients that is greater than or equal to the average percentage of Medicaid patients currently in nursing homes in that subdistrict. Such percentage to be measured by the ratio of Medicaid Patient Days to Total Patient Days for the subdistrict for the same six month period used by the state nursing home bed need methodology to determine the occupancy rate. These commitments should be included on the granted CON as a condition of that CON. The applicable subdistrict Medicaid utilization rate was 70.16 percent. HealthPrime has committed to provide 71 percent of its patient days to Medicaid patients. Life Care has committed to provide 70.5 percent of its patient days to Medicaid patients. Beverly has committed to provide only 60 percent of its patient days to Medicaid patients. HealthPrime and Life Care meet the terms of this allocation factor; Beverly does not. Allocation Factor III. Within a subdistrict, preference should be given to a CON applicant for nursing home beds to be located in counties experiencing the highest occupancy if the applicant submits patient origin data indicating that 85 [percent] or more of current subdistrict nursing home patients originate from within the subdistrict. None of the parties submitted patient origin data. Accordingly, none of the parties are eligible for the preference described in Allocation Factor III. The parties have stipulated that the criteria described in Allocation Factor IV are not at issue in this proceeding. Allocation Factor V. Preference should be given to a CON applicant who has a history of providing care, or who will commit to provide care, to AIDS patients. None of these three Petitioners have shown anything remarkable with regard to their history of providing care to AIDS patients. Most of the evidence of any such history was anecdotal or approximate and difficult to quantify or compare. Each of the Petitioners has committed to care for AIDS patients. None of such commitments are particularly remarkable when viewed in light of the fact that Federal law prohibits nursing homes from denying care to a patient on the basis that the patient has AIDS or an AIDS-related condition. By reason of their commitments, all three Petitioners meet the terms of this allocation factor more or less equally. Allocation Factor VI. Preference should be given to a CON applicant who has provided the greatest percentage of the facility’s available annual patient days to AIDS patients. This preference cannot be applied literally to the Petitioners in this case, because each of the Petitioners is proposing to build a new facility. Thus, none of the proposed “facilities” has a history of providing any care. With regard to other nursing home facilities operated by each of the Petitioners, there is insufficient evidence upon which to determine which of the Petitioners has provided the greatest percentage of available annual patient days to AIDS patients in such facilities.6 Accordingly, none of the Petitioners meets the terms of Allocation Factor VI. Allocation Factor VII. Preference should be given to a CON applicant who agrees to accept AIDS patients referred by the public health unit serving the county in which the facility is or is proposed to be located. All of the Petitioners agreed to accept AIDS patients referred by the local public health unit. Although the HealthPrime commitment was slightly qualified,7 there is no significant difference in the commitments of any of the parties in this regard. Accordingly, there is no basis to prefer one over the other on this factor. Allocation Factor VIII. Preference should be given to a CON applicant who is applying to develop beds exclusively for AIDS patients in the district, provided the number of nursing home beds proposed does not exceed the need documented by the applicable fixed bed need pool. None of the parties is proposing to develop beds exclusively for AIDS patients. Accordingly, there is no basis to prefer one over the other on this factor. The parties have stipulated that the preferences expressed in Allocation Factors IX and X of the Local Health Plan are not at issue in this proceeding. State health plan provisions Allocation Factor I. Preference shall be given to applicants proposing to locate nursing homes in areas within subdistricts with occupancy rates exceeding 90 [percent]. The occupancy rates for both Escambia and Santa Rosa Counties exceed the 90 percent threshold contained in this allocation factor. Therefore, each of the Petitioners meets the requirements of this allocation factor. Beverly and HealthPrime assert that they both meet this factor better than Life Care because the occupancy rate in Santa Rosa County is 97 percent, versus 94 percent in Escambia County. These differences in occupancy rates are too small to be given much weight, especially when viewed in light of the fact that the total patient numbers in Escambia County are substantially larger than the total patient numbers in Santa Rosa County. Allocation Factor II. Preference shall be given to applicants who propose to serve Medicaid residents in proportion to the average subdistrict-wide percentage of the nursing homes in the same subdistrict. Exceptions shall be considered for applicants who propose to exclusively serve persons with similar ethnic and cultural backgrounds or propose the development of multi-level care systems. The terms of this allocation factor are essentially the same as Allocation Factor II of the local health plan, which is discussed above. As noted above, HealthPrime and Life Care meet the terms of this allocation factor; Beverly does not. Allocation Factor III. Preference shall be given to applicants proposing to provide specialized services to special care residents, including AIDS residents, Alzheimer's residents and the mentally ill. Each of the Petitioners proposes to provide specialized services to special care residents. Accordingly, all of the Petitioners meet the requirements of this allocation factor. Each of the Petitioners argues that it does a better job than the others in meeting the requirements of this allocation factor. Although there are differences in the specialized services proposed by each Petitioner, on balance, none of the proposals appears to be remarkably superior to the others on this issue. Allocation Factor IV. Preference shall be given to applicants proposing to provide a continuum of services to community residents, including, but not limited to, respite care and adult day care. On the whole, there is not much to discuss regarding this allocation factor. The parties have not proposed much in the way of the services described in this allocation factor, and there appears to be little need for what has been proposed. All three Petitioners meet the letter of this allocation factor. Life Care appears to do so better than the other two by reason of its proposed adult day care services, but any weight to be given to this allocation factor is diminished by serious doubts as to the need for such services. Allocation Factor V. Preference shall be given to applicants proposing to construct facilities which provide maximum resident comfort and quality of care. These special features may include, but are not limited to, larger rooms, individual temperature control, visitors' rooms, recreation areas, outside landscaped recreation areas, physical therapy rooms and equipment, and staff lounges. Each of the Petitioners meets the terms of this allocation factor, because each of the proposed architectural designs are above average and incorporate features designed to provide maximum resident comfort and quality of care. Each of the three architectural designs incorporates some unique features, but on balance it cannot be said that any one of the three architectural designs is significantly superior to the others. Allocation Factor VI. Preference shall be given to applicants proposing to provide innovative therapeutic programs which have been proven to be effective in enhancing the residents' physical and mental functional level and which emphasize restorative care. Each of the Petitioners proposes to provide comprehensive medical rehabilitation services. Accordingly, all three of the Petitioners meet the requirements of this allocation factor. The requirements of this allocation factor are best met by Beverly. This is because Beverly is the only one of the three that proposes to rely solely on in-house staff therapists, proposes to have a director of therapy services, proposes to provide therapy services six days per week, and has an express commitment to provide outpatient therapy. Allocation Factor VII. Preference shall be given to applicants proposing charges which do not exceed the highest Medicaid per diem rate in the subdistrict. Exceptions shall be considered for facilities proposing to serve upper income residents. The proposed Medicaid charges for each of the Petitioners in the second year of operations are these: for Beverly, $96.54; for Life Care, $111.13; and for HealthPrime, $106.07. The highest Medicaid rate in the district at the time the applications were filed was at Azalea Trace. The Azalea Trace Medicaid rate, inflated forward to the second year of operations of the Petitioners would be $113.00. Thus, all Petitioners meet this preference. The extent to which each Petitioner meets this preference is at issue in this proceeding. Obviously, Medicaid is the largest projected payor source for each of the proposed facilities at issue in this proceeding. Also obvious is the need of the state to purchase necessary nursing home services at the lowest reasonable rate.8 Beverly is proposing the most economical delivery of Medicaid services. Beverly will be $9.53 less expensive per Medicaid patient day (more than 10 percent cheaper) than HealthPrime and will cost the state $14.59 less per Medicaid patient day than Life Care, a savings of over 15 percent. Under this allocation factor, Beverly’s proposal is to be preferred over the other two proposals. Allocation Factor VIII. Preference shall be given to applicants with a history of providing superior resident care programs in existing facilities in Florida or other states. AHCA's evaluation of existing facilities shall consider, but not be limited to, current ratings of licensure facilities located in Florida. As a result of differences in the nature of the information each of the parties provided regarding this allocation factor, it is difficult to make an “apples to apples” comparison of the parties on this factor. On the basis of the incomplete evidence which is available,9 it appears that HealthPrime has the best and most consistent history of superior and standard licensure ratings. However, the validity of any comparison on this point is cast into doubt by, among other things, large differences in the sample sizes. In this regard it is perhaps sufficient to observe that all three applicants have the ability to provide high quality care, are motivated to provide high quality of care, and can reasonably be expected, with rare exceptions,10 to provide high quality of care. Allocation Factor IX. Preference shall be given to applicants proposing staffing levels which exceed the minimum staffing standards contained in licensure administrative rules. Applicants proposing higher ratios of RNs-and-LPNs-to residents than other applicants shall be given preference. Beverly is proposing to provide 3.56 hours of nursing care per patient day; HealthPrime is proposing 3.6 hours of nursing care per patient day; Life Care is proposing 3.15 hours of nursing care per patient day. Although all three applicants propose staffing which exceeds minimum standards, this allocation factor goes on to give preference over other applicants to applicants proposing the higher levels of nursing care. In this regard, Beverly and HealthPrime are essentially equal, but both are notably better (approximately 15 percent) than Life Care. The parties have stipulated that the preferences expressed in Allocation Factors X and XI of the State Health Plan are not at issue in this proceeding. Allocation Factor XII. Preference shall be given to applicants proposing lower administrative costs and higher resident care costs compared to the average nursing home in the district. In the second year of operation, the administrative and patient care costs per patient day of each Petitioner will be as follows: Beverly Administrative Costs $23.81 Patient Care Costs $65.37 Life Care Administrative Costs $26.01 Patient Care Costs $64.32 HealthPrime Administrative Costs $27.33 Patient Care Costs $65.18 Each of the Petitioners complies with the terms of this allocation factor. It is the goal of the state that dollars spent on nursing home reimbursement be used to the greatest extent for patient care and to the least extent on administrative and overhead costs. For that reason, lower administrative costs per patient day and higher patient care costs per patient day are preferable. Beverly’s administrative costs are notably lower than those of either Life Care or HealthPrime, and Beverly’s patient care costs are slightly higher than the other two Petitioners. Accordingly, Beverly best meets this preference. Further statutory criteria The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the service district of the applicant. For purposes of this proceeding, the parties have stipulated that existing nursing home providers provide adequate quality of care, are efficient, are appropriate, and are highly utilized. The availability and accessibility of specific services and the accessibility of services to specific patient groups is at issue. Beverly and HealthPrime propose to locate their new nursing homes in the Milton/Pace area of Santa Rosa County. Life Care proposes to locate its new facility in north/northwest Escambia County. Witnesses for all of the applicants agreed that it is preferable for nursing home patients to receive nursing care close to their homes when possible. There are twelve nursing homes and two hospital-based skilled nursing units in Escambia County. Of these, all but one nursing home are located in the Pensacola area, where Life Care proposes to locate. There are only three nursing homes and one hospital-based skilled nursing unit in Santa Rosa County. The vast majority of nursing homes in Escambia County are located within the area where Life Care proposes build its nursing home. There are no nursing homes in existence in Beverly's proposed location. Occupancy of nursing homes in Escambia County was under 94 percent. For the same period, the occupancy of nursing home beds in Santa Rosa County was 97 percent. In Escambia County there are 42 nursing home beds per 1,000 persons over the age of 65 years. In Santa Rosa County, this ratio is 29.5 beds per 1,000 persons over the age of 65 years. Thus, currently, there are almost one-and-one-half times as many nursing home beds per elderly person in Escambia County than in Santa Rosa County. It is reasonable to assume that the elderly residents of Santa Rosa County have the same per capita need for nursing home services as the residents of Escambia County. If the Life Care application is approved, the ratio of nursing home beds per 1,000 elderly persons in Escambia County will increase to 45 beds/1,000. Santa Rosa's ratio would remain at 29.5 beds per 1,000. If the applications of Beverly or HealthPrime were approved, the Santa Rosa ratio would increase to 39 beds per 1,000, still lower than Escambia County's current 42 beds per 1,000 persons. The population over the age of 65 is projected to increase by 16.4 percent in Santa Rosa County between 1995 and 1998. During the same period, the population in that age group in Escambia County is projected to increase by only 6.5 percent. During the same period, the population over age 75 in Santa Rosa County is projected to increase by 26.9 percent, but only a 16.6 percent increase in that age group is projected for Escambia County. Historic Medicare utilization in Santa Rosa County is 4 percent; in Escambia County Medicare utilization is 13 percent. There has been no HMO utilization in Santa Rosa County. This appears to be due in part to the fact that there currently are no subacute care beds in free-standing nursing homes in Santa Rosa County. The per capita need of Santa Rosa County residents for Medicare and HMO subacute care services would appear to be the same for residents of Santa Rosa County as for residents of Escambia County. This indicates that there is an unmet need for subacute care beds in Santa Rosa County. This unmet need would be fulfilled by Beverly's application, but not by HealthPrime's (because it will have no subacute care beds) or Life Care's (because it will be in Pensacola, Escambia County). Based on the foregoing, it appears that the greatest need for additional nursing home beds in District 1, Subdistrict 1, is in Santa Rosa County, and that there is an unmet need for Medicare and subacute care beds in Santa Rosa County. These needs are best met by Beverly's application because it proposes both to locate in Santa Rosa County and to provide subacute care services. Life Care is proposing to locate in Pensacola where there currently are already eleven freestanding nursing homes and two hospital-based skilled nursing units. Approval of the Life Care application will not improve availability or accessibility to nursing home services in the District 1, Subdistrict 1. The ability of the applicant to provide quality of care and the applicant’s record of providing quality of care. As noted above, in the findings of fact regarding Allocation Factor VIII of the State Health Plan, “all three applicants have the ability to provide high quality care, are motivated to provide high quality of care, and can reasonably be expected, with rare exceptions, to provide high quality of care.” On this issue, there is nothing that remarkably distinguishes one Petitioner from the other. The availability and adequacy of other health care facilities and services and hospices in the service district of the applicant, such as outpatient care and ambulatory or home care services, which may serve as alternatives for the health care facilities and services to be provided by the applicant. There is no evidence in the record of this case of any available alternatives to the nursing home care these Petitioners seek to provide. The parties have stipulated that the criteria described at Paragraphs (e) and (f) of Section 408.035(1), Florida Statutes, are not at issue in this proceeding. The need for research and educational facilities, including, but not limited to, institutional training programs and community training programs for health care practitioners and for doctors of osteopathy and medicine at the student, internship, and residency training levels. Beverly and Life Care have both made substantial donations to institutions of higher learning to further research and education in health related fields. Beverly and Life Care both propose to make further donations. They also propose to establish training opportunities for students in health-related fields. Notably absent is any persuasive evidence of any need for such donations or training opportunities.11 In the absence of a showing of some identified need that is being addressed, these donations and training opportunities, commendable as they are, are irrelevant to the subject criterion. The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation; the effects the project will have on clinical needs of health professional training programs in the service district; the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities; the availability of alternative uses of such resources for the provision of other health services; and the extent to which the proposed services will be accessible to all residents of the service district. The availability of health manpower and management personnel and the availability of alternative uses of all resources for the provision of other health services are not in dispute and shall not form the basis for comparison between the applications. All other provisions of this criterion are in dispute. Although there are sizable differences in the financial resources of each of the Petitioners, all three Petitioners have access to sufficient funds to be able to build and operate the proposed facilities.12 The immediate and long-term financial feasibility of the proposal. On balance, there are no significant differences in the immediate and long-term financial feasibility of any of these three competing proposals. It appears that all three are financially feasible, both short-term and long-term. The parties have stipulated that the criteria set forth at Paragraphs (j) and (k) of Section 408.035(1), Florida Statutes, are not at issue in this proceeding. The probable impact of the proposed project on the costs of providing health services proposed by the applicant, upon consideration of factors including, but not limited to, the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and serve to promote quality assurance and cost-effectiveness. The proposed revenues per patient day by payor class in the second year of operation are as follows: Beverly Life Care HealthPrime Private Pay $128.51 $142.76 $124.93 Semiprivate $125.63 $125.36 $108.83 Medicaid $96.54 $111.13 $106.07 Medicare $316.77 $337.43 $305.60 HMO/Insurance $374.44 $391.10 $305.63 The figures immediately above show that Life Care would be the most expensive provider. Beverly would have the least expensive Medicaid rates, and HealthPrime would have the least expensive rates in all other payor classes. On the basis of their respective rates, Beverly and HealthPrime would do more to foster competition than would Life Care. The proposed locations of the Beverly and the HealthPrime facilities would also do more to foster competition than would the proposed location of the Life Care facility. Beverly and HealthPrime propose to locate in an area in which there is presently very little competition. Life Care proposes to locate in an area in which a large amount of competition already exists. The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction. There is no significant difference between the proposed project costs for the facilities proposed by Beverly and HealthPrime. Life Care’s proposed project costs are substantially higher than those of Beverly and HealthPrime. The applicant’s past and proposed provision of health care services to Medicaid patients and the medically indigent. With regard to past and proposed provision of health care services to Medicaid patients, Life Care and HealthPrime are to be preferred over Beverly, even though Beverly’s past provision of such services has been substantial. With regard to past services to the medically indigent, there is insufficient evidence to compare the three Petitioners. With regard to proposed services to the medically indigent, the amounts proposed by Beverly and HealthPrime are not great enough to warrant a preference over Life Care in this regard. The applicant's past and proposed provision of services which promote a continuum of care in a multilevel health care system, which may include, but is not limited to, acute care, skilled nursing care, home health care, and adult congregate living facilities. This criterion is very similar to Allocation Factor IV in the State Health Plan, which has been discussed above. As noted in the discussion of Allocation Factor IV, the parties have not proposed much in the way of the services described in this criterion, and there appears to be little need for what has been proposed. All three Petitioners meet the letter of this criterion. Life Care appears to do so better than the other two by reason of its proposed day care services, but any weight to be given on the basis of this criterion is diminished by serious doubts as to the need for such services. The parties have stipulated that the criteria set forth at Subsections (2) and (3) of Section 408.035(1), Florida Statutes, are not at issue in this proceeding.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case GRANTING the application of Beverly Savana Cay Manor, Inc., for certificate of need number 8270, DENYING the application of HealthPrime, Inc., for certificate of need number 8271, and DENYING the application of Life Care Centers of America, Inc., for certificate of need number 8268. DONE AND ENTERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997.
The Issue The issue is whether Petitioner's application for a license to operate a family day care home should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This licensure proceeding involves a request by Petitioner, Yolanda Cheesmon, for a license to operate a family day care home at 1012 Yates Avenue, Blountstown, Florida. On July 2, 1999, Respondent, Department of Children and Family Services (Department), denied the application on the grounds that Petitioner was "previously denied an application to operate a Licensed Day Care Home"; that she had begun "operating at a Day Care Home at 920 Thomas Avenue without being properly registered"; that she had operated for "an unknown period of time" without a telephone, "which is a requirement"; and that she had "requested to become a licensed home and provided [the Department] with false information and a forged letter." The denial of the application prompted Petitioner to request a hearing. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed family day care facility, a licensed family day care home, and a registered family day care center. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator undergo background screening, complete a training course, and provide to the Department certain paperwork, including shot records of the children, in order to secure the registration. On August 19, 1998, Petitioner filed the necessary paperwork to operate a registered family day care center at 1012 Yates Avenue, Blountstown, Florida. She received a registration the same month. In its post-hearing submission, the Department represents that the registration was subsequently "terminated." As noted above, a registered home is the least restrictive type of day care facility, and it only required that Petitioner file an application with the Department, undergo background screening, and provide the Department with certain paperwork. Petitioner was, however, required to conform with certain Department "standards," one of which required that she have a working telephone on the premises of the facility, so that Department personnel could always contact her, if necessary. Whether this requirement is based upon a rule or an informal regulation was not disclosed. In September 1998, a Department licensing counselor, Michelle Barsanti (Barsanti), attempted to contact Petitioner by telephone and learned that the telephone had been disconnected, which violated the unidentified Department requirement. Barsanti then sent a registered letter to Petitioner on October 7, 1998, advising that Petitioner must provide a telephone number. By letter dated October 12, 1998, Petitioner advised Barsanti that after she had received her registration from the Department, she had moved the day care center to 920 Thomas Avenue, Blountstown, Florida, and that she had a new telephone number. This move was made because Petitioner says the Yates property "wasn't properly fixed up and all to pass for the inspection." However, an operator must re-register each time the facility is moved; by operating at the new location without a valid registration, Petitioner contravened a statute which prohibits any person from operating a registered family day care center without a registration. It is fair to infer from the evidence that Petitioner was unaware of this requirement and that the violation was unintentional. On October 23, 1998, Barsanti met with Petitioner to assist her in obtaining a registration for the new location. During that meeting, Barsanti learned that Petitioner now desired to operate a licensed, as opposed to a registered, family day care home at her new address, and that Petitioner leased the property from Judy A. Davis (Davis), an absentee landlord who resided in Riviera Beach, Florida. At some point during this process, Petitioner was also advised that she must close her day care center at 920 Thomas Avenue until she obtained the appropriate license. Rule 65C-20.009(1)(a), Florida Administrative Code, provides that if the operator leases the property on which the facility will be located, "[w]ritten approval from the owner of the property must be secured prior to issuance of the license." Accordingly, Petitioner was required to comply with this requirement since she intended to lease the Davis property. In response to the foregoing requirement, Petitioner provided Barsanti with a letter dated October 7, 1998, purportedly written by Davis, and which stated that Davis "[gave] Yolanda Cheesmon permission to operate a Daycare at my appointed residence." Shortly thereafter, Barsanti received an anonymous letter which caused her to question the authenticity of the Davis letter. After Barsanti contacted Petitioner and requested the address and telephone number of Petitioner's landlord, on October 29, 1998, Petitioner sent Barsanti a letter stating in part as follows: I regret to have to tell you that I lied about the letter. I'm very sorry but I was desperate to go ahead without any delay to be licensed so that I can get the insurance policy that my landlord needs. . . . Please forgive me and I hope this doesn't affect my case in any way. And again, I'm very sorry that I thought I had to lie to you. The foregoing admission confirms the Department's allegation that Petitioner provided the Department "with false information and a forged letter," as charged in the letter of denial. Notwithstanding the foregoing admission, Petitioner pursued her application for a license at the Davis property. The application was preliminarily denied on the ground that Petitioner had provided the Department with a forged document. Petitioner requested a formal hearing, and the matter was assigned Case No. 98-5593. After a formal hearing was conducted on April 22, 1999, Administrative Law Judge Steven F. Dean issued a Recommended Order on June 14, 1999, in which he recommended that Petitioner's application be denied, not on the ground that she had made a false statement as alleged by the Department, but rather because the application was moot by virtue of "the passage of time" since Petitioner had by then moved back to her former residence at 1012 Yates Avenue and desired to operate her facility from that location. In addition, at the conclusion of the evidentiary hearing, Judge Dean advised Petitioner to file a new application for licensure using her most current address. Based on that advice, Petitioner filed the instant application. As noted in Finding of Fact 1, the Department has preliminarily denied the second application on numerous grounds. In a Final Order Reversing Recommended Order and Denying Application for Licensure filed on December 27, 1999, the Department rejected the conclusion that the application was moot and instead denied the application on the ground that Petitioner had failed to "meet all of the Department's requirements for licensure." Therefore, Petitioner has had a prior application denied, as alleged in the Department's letter denying her application. In summary, the foregoing facts establish the Department's contentions that Petitioner operated for a short period of time as a family day care home without an appropriate registration; that she operated without a telephone on the registered premises; that she gave false information to the Department when attempting to secure a license; and that she has had a prior application for licensure denied. At the hearing, Petitioner again apologized for filing a forged document; stated it was based on "bad judgment"; argued that the forged document alone is not a sufficient basis to disqualify her from licensure;, and established that she sincerely desires to engage in the day care business. Petitioner has requested that if the license is denied, that she be allowed to retain her registration previously issued in August 1998.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for a license to operate a family day care center at 1012 Yates Avenue, Blountstown, Florida. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 26th day of January, 2000. COPIES FURNISHED: Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Yolanda Cheesmon 1012A Yates Avenue Blountstown, Florida 32424 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949
Conclusions Having reviewed the Notice of Intent to Deny (hereinafter “NOID”), and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing status and administrative code provisions. 2. The Agency issued the attached NOID and Elections of Rights form to the Petitioner with respect to its license renewal application. (Ex. A) The Election of Rights form advised of the right to an administrative hearing. The Petitioner received the NOID and timely filed the Election of Rights form with the Agency Clerk. (Ex. B) 3. On September 30, 2011, the Agency filed a motion to dismiss with the Agency Clerk, citing the mootness of the NOID due to the revocation of the underlying assisted living facility license. (Ex. C) The Agency Clerk granted the motion and directed the entry of a final order. (Ex. D) Based upon the foregoing, it is ORDERED: 1. The Agency’s NOID is withdrawn as moot due to the revocation of the underlying license to operate the assisted living facility in question. ORDERED in Tallahassee, Florida, on this /7_ day of Algae} , 2012. Secretary Care Administration Elizabeth Dude Agency for He 1 Filed February 21, 2012 1:58 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy eas Final Order was served on the below- named persons/entities by the method designated on this 2/*~day of feller , 2012. Richard Shoop, Agency Clérk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Facility Unit Agency for Health Care Administration Agency for Health Care Administration Unteroffice Mail) Cnteroffice Mail) Tria Lawton-Russell John D.C. Newton, II Office of the General Counsel Administrative Law Judge Agency for Health Care Administration (Interoffice Mail) Division of Administrative Hearings (Electronic Mail) Lawrence Bessser, Esquire Samek and Besser 1200 Brickell Avenue, No. 1950 Miami, Florida 33131 (U.S. Mail)
The Issue Should an exemption be granted to the Petitioner who pled nolo contendere to a charge of child abuse?
Findings Of Fact Wanda Gudith operates from her home a child daycare service. Wanda Gudith is married to Dennis R. Gudith, who lives in the family home. On June 22, 1996, S.L.B. was seen by the emergency room at Flagler Hospital in St. Augustine, Florida. The records of that visit reveal that S.L.B. is a white male born on August 9, 1986. At the time he was seen, S.L.B. weighed 110 pounds. S.L.B. presenting complaint was a bruised and tender buttock. The records of S.L.B.'s hospital examination reveal that his left buttock was bruised and tender. It was reported in the hospital case history that the injury was caused by having been struck the previous day by "the baby sitter." Examination of the injury revealed no broken skin and no drainage. The final diagnosis was that S.L.B. had a bruised buttock. The medical report also indicates that the sheriff's department was notified. See Respondent's Exhibit No. 8. On July 19, 1996, a supplemental investigation was conducted by the St. Johns County Sheriff's Office. The victim, S.L.B., was interviewed and reported that he had thrown a toy car which nearly hit another child, where upon Wanda Gudith had sent him inside to be disciplined by her husband, Dennis Gudith. Dennis Gudith had him bend over and grab his ankles, and then struck him with a wooden cutting board. The victim reported that "it hurt badly." The victim also reported that later the same day Wanda Gudith spanked him on the same spot with a wooden spoon. The victim stated that Mr. Gudith had spanked him on previous occasions, but that it had not left any marks. The investigator's written report states that the photographs of the injury were reviewed, and a noticeable large bruise was observed on the left cheek of the victim's buttock. See Respondent's Exhibit No. 9. On August 26, 1996, the investigator interviewed Wanda Gudith. Ms. Gudith reported that she had baby-sat for S.L.B. for approximately a year and that he had lived with them for a few weeks while his father was out of town. Gudith said that they had had behavior problems with the victim and that he sometimes acted out. On the day in question, Ms. Gudith reported that the victim had been told several times not to throw things around the other children. When S.L.B. threw items again, Ms. Gudith sent the victim into the house to be disciplined by her husband. See Respondent's Exhibit No. 9. Mr. Gudith reported that the victim did as he had been told and that her husband spoke with him about not throwing things around the other children. Ms. Gudith stated that her husband then spanked the victim using as a paddle a wooden cutting board, which was turned over to the investigator as evidence. See Respondent's Exhibit No. 9. On August 27, 1996, the investigating officer met with the father of the victim, who signed a complaint affidavit against Dennis Gudith for child abuse. See Respondent's Exhibit No. 9. On September 9, 1996, the investigating officer forwarded the file to the state's attorneys' office for a decision on whether a case would be filed against Mr. Gudith. See Respondent's Exhibit No. 9. Dennis Gudith testified at the hearing. Mr. Gudith entered a plea of nolo contendere to the charges filed against him for child abuse because he had struck the child and because it was cheaper than contesting the charges. The court withheld adjudication and placed Mr. Gudith on six-months supervised probation. Among the conditions established by the court was that Mr. Gudith attend anger control counseling with the Salvation Army. Mr. Gudith successfully completed all of the conditions of his probation and was released early from probation. See Petitioner's Exhibit No. 4 with attachments, and Petitioner's Exhibit No. 5 with attachments. The attachment to Petitioner's Exhibit No. 6 reveal that both Mr. and Ms. Gudith have completed a 30-hour course of instruction on operating a home daycare facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department grant Mr. Gudith's request for an exemption. DONE AND ENTERED this 15th day of May, 1998, in Tallahassee, Leon County, Florida. _ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1998. COPIES FURNISHED: Dennis R. Gudith 4225 Rues Landing Road St. Augustine, Florida 32092 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
