The Issue Should Petitioner revoke or impose other discipline against Respondent's child care facility license? More specifically should action be taken against the license for Respondent's knowingly allowing persons who had not undergone Level 2 screening in accordance with Section 435.04, Florida Statutes, to either work in, volunteer in, or be present in the licensed facility or to reside in the residence of Marie McCracken adjacent to the facility, all in a setting in which one of those persons as a part of "child care personnel" would be disqualified to work in the facility under terms set forth in the screening process? See Section 402.310, Florida Statutes.
Findings Of Fact Petitioner in accordance with Section 402.305, Florida Statutes, licenses child care facilities to provide child care in Florida. Respondent holds a child care facility license to operate Pine Ridge Day Care in Duval County, Florida. Respondent has two adult sons, Keith McCracken and Ohlan McCracken who were adults at times relevant to the inquiry. Walter J. Giannone, Family Services Counselor for Petitioner, received a complaint on July 23, 1998, in relation to circumstances in Respondent's child care facility. The complaint was in relation to the attendance at the facility by Respondent's two adult sons. Mr. Giannone investigated the complaint on July 28, 1998. To conduct his investigation Mr. Giannone went to Respondent's licensed premises. While there he spoke to Ms. McCracken and asked her about her sons being present at the facility. Ms. McCracken denied that her sons were ever present at the facility. Several other staff members at the facility gave statements that were in accordance with Ms. McCracken's explanation that the sons were never at the center. By virtue of the visit, Mr. Giannone did not confirm the presence of Respondent's sons at the facility. Mr. Giannone received another complaint concerning Respondent's child care facility on October 22, 1998, that Respondent's adult sons were working with children at the facility. That complainant wanted to know if those adult sons had been screened. The complainant indicated to Mr. Giannone that the sons were there "all the time." In relation to the complaint made on October 22, 1998, Mr. Giannone went to the facility on October 28, 1998, to investigate. He spoke to Ms. McCracken. Ms. McCracken told Mr. Giannone that her sons stopped by the facility at various times of the day. However, Ms. McCracken told Mr. Giannone that the sons did not provide care to the children. To that date, Ms. McCracken realized that the sons had not been required to undergo the screening requirements of Section 435.04, Florida Statutes, as "child care personnel," as defined at Section 402.302(3), Florida Statutes. Following a discussion about the advisability of screening the two adult sons, in which Mr. Giannone recommended that both sons be screened to avoid any concerns about the propriety of their attendance at the facility, Mr. Giannone left Ms. McCracken background screening forms to be executed by her two adult sons. This arrangement was also made in consideration of the possibility that the sons could serve as substitute personnel at the facility when regular employees were absent. On this visit Mr. Giannone also determined that Ohlan McCracken was living with Respondent on property that was adjacent to the child care facility. On November 2, 1998. Mr. Giannone received another complaint concerning Respondent's child care facility. It was reported that Keith McCracken had lived in a bathroom in the child care facility for over a year, with a sign posted on the bathroom door that said "out of service." This complainant also stated that Ohlan McCracken lived next door to the facility and that both McCracken men took care of children at the facility without undergoing screening. This allegation was investigated by Mr. Giannone on November 3, 1998, during which Mr. Giannone made an inspection of the facility. In particular, he examined the bathroom that had been described by the complainant and found no evidence that anyone was living in the bathroom. He found the bathroom to be clean and stocked with supplies. Mr. Giannone made this discovery after Ms. McCracken told Mr. Giannone that Keith McCracken did not live in the bathroom. In this visit Ms. McCracken told Mr. Giannone that both of her sons lived next door to the facility. While Mr. Giannone was at the facility on this date, Keith McCracken was summoned by pager and came to the facility within 5 minutes. On November 2, 1998, within 5 minutes of the time the aforementioned complaint was made, a second complaint was received from a different person. The second complainant indicated that she had been using the facility for the past year for child care and had observed both McCracken sons caring for children at the facility. In reference to that complaint, when Mr. Giannone made his investigation on November 3, 1998, he observed Ohlan McCracken at the center around nap time helping- out with child care. Ms. McCracken acknowledged that Ohlan McCracken worked on that date and the day before to assist Ms. McCracken in the attempt to stay within the ratio of staff- to-children called for by licensure requirements. Before Mr. Giannone left the facility on November 3, 1998, he collected the completed screening forms that had been executed by Keith McCracken and Ohlan McCracken. It was later revealed that Ohlan McCracken was disqualified from working in a position of trust or responsibility to provide "child care" by virtue of his commission of the offence of auto theft, pursuant to an arrest in Duval County, Florida, on December 31, 1996. The disqualification for that type of offense is related to Chapter 812, Florida Statutes, as referred to under the screening provisions of Section 435.04(2)(r), Florida Statutes. Ms. McCracken was made aware of the discovery that Ohlan McCracken was disqualified to work in "child care" following the screening. With this revelation, Ms. McCracken left Mr. Giannone with the impression that she was previously aware that Ohlan McCracken had a record but the nature of the record pertained to a juvenile offense. Following the notice of disqualification, Petitioner, in the person of Mr. Giannone, has no knowledge that Ohlan McCracken has returned to Respondent's child care facility. Ms. Laura Thomas had children who were cared for at Respondent's child care facility. Dates upon which the children received care began in March 1995 and continued into October 1998, for at least one of her children. While her children were present, Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for children at the facility on a consistent basis for about two years. Specific care observed by Ms. Thomas involved Ohlan McCracken giving a bottle to Ms. Thomas' infant son on many occasions. Ms. Thomas observed her daughter playing with Keith McCracken many times. Ms. Thomas observed Ohlan McCracken and Keith McCracken providing lunches for the children at the facility. Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for the children at the close of the day while the children were waiting to be picked up by their parents. Ms. Thomas had been in the facility at various times between 6:30 a.m. and 6:00 p.m. and observed Keith McCracken and Ohlan McCracken participating in child care. Maurice W. Murray, Family Services Counselor Supervisor for Petitioner, has had experience with Respondent and her Pine Ridge Day Care. Although Mr. Murray does not consider Respondent's child care facility to be a "problem center," he has observed inadequacies in the facility in the past. One of his observations had to do with the fact that Ms. McCracken "was not real good with keeping up with her background screening timely." In particular, a background screening warning letter had been issued on April 3, 1996, with respect to an employee at Respondent's child care facility. Mr. Murray also had discussion with Ms. McCracken about the condition of playground equipment being in disrepair. While on the playground performing an inspection, Mr. Murray observed Ohlan McCracken on the playground at the facility. Mr. Murray asked Ms. McCracken, "Who's he?" Ms. McCracken replied "that's my son, Ohlan." Mr. Murray stated, "Well, you know, if he is going to be here, he needs to be background screened." To emphasize the point, Mr. Murray wrote in his supplemental inspection report for that day the details of this conversation. Finally, concerning the performance of the facility, Mr. Murray made one other reference to a background screening issue aside from the experience that Mr. Giannone related as has been reported in the fact-finding. In her testimony at hearing Ms. McCracken acknowledged that her sons had helped out at the facility whenever she was "shorthanded." Ms. McCracken acknowledged telling Mr. Murray that her sons were there at the facility a lot but she demurs that she is their mother and their presence at the facility should not be unexpected. Further, Ms. McCracken testified that she did not see anything wrong with her sons giving children their snacks if the sons were at the facility. Ms. McCracken never observed Ohlan giving bottles to Ms. Thomas' son. Ms. McCracken acknowledged that her sons played with the children on the playground but not on a regular basis. Ms. McCracken established that her sons are not regular employees who have been hired and paid to provide child care at the facility. Ms. McCracken identified that on the date that Mr. Murray saw Ohlan McCracken on the playground, Ohlan McCracken was not living at the residence adjacent to the facility. As Ms. McCracken established, at the time that Ohlan McCracken was observed on the playground by Mr. Murray, he was not there for the purposes of assisting in child care. As established by Ms. McCracken, Ohlan McCracken moved back to the residence adjacent to the facility in the latter part of 1997. At times relevant to the inquiry, it can reasonably be inferred that Respondent was aware of the participation of Keith McCracken and Ohlan McCracken in providing child care at Respondent's licensed facility. As Ms. McCracken described it, she was aware that Ohlan McCracken had been trouble for "taking a car" before the results of the screening were made known to her. She did not realize that the offense was a felony. Ms. McCracken established in her testimony that Ohlan McCracken has not returned to the facility following the disclosure through the screening results that Ohlan McCracken was disqualified from serving as "child care personnel." Ohlan McCracken continues to live with Respondent at the residence adjacent to the facility beyond the point in time during which Respondent had been charged with violations in accordance with the December 2, 1998 charging document. Concerning the past license history, Ms. McCracken acknowledges an incident in 1981 in which the facility had a problem with rendering care for "too many children."
Recommendation Upon consideration of the violations and the standards for imposition for discipline, it is RECOMMENDED: That a final order be entered finding the Respondent knowingly allowed unscreened personnel, her sons, to work in the child care facility, in a setting where Respondent knew that those persons should have been screened before working in the child care facility, in which one of those persons was disqualified from working in the facility, and suspending the license for the child care facility for 30 days. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999. COPIES FURNISHED: Gene T. Moss, Esquire Moss and Andrews 337 East Bay Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office 2417 Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 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
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (“the Agency") concerning the denial of the Certificate of Need (“CON”) Application No. 10234, filed by North Brevard County Hospital District d/b/a Parrish Medical Center (“Parrish”). 1. On December 5, 2014, the Agency issued a State Agency Action Report (“SAAR”) preliminarily denying CON Application 10234 seeking to establish a new 20-bed comprehensive rehabilitation unit in District 7, Brevard County. The decision was published in Filed March 10, 2015 3:06 PM Division of Administrative Hearings the Florida Administrative Register on December 8, 2014. Exhibit 1. 2. On December 29, 2014, Parrish petitioned for a formal administrative proceeding to appeal the Agency’s initial denial of its CON application. The case was referred to DOAH and assigned Case No. 15-0133. 3. On December 29, 2014, Healthsouth of Sea Pines Limited Partnership, d/b/a Heaithsouth Sea Pines Rehabilitation Hospital (“HealthSouth Sea Pines”) petitioned for a formal administrative proceeding in support of the Agency’s preliminary denial of CON Application No. 10234. The case was referred to DOAH and assigned Case No. 15-0132. 4. On January 26, 2015, Parrish filed a Notice of Voluntary Dismissal of Case No. 15-0133. Exhibit 2. 5. On January 26, 2015, HealthSouth Sea Pines filed a Notice of Voluntary Dismissal of Case No. 15-0132. Exhibit 3. It is therefore ORDERED: 6. The denial of Parrish’s CON Application No. 10234 is UPHELD. ORDERED in Tallahassee, Florida, on this /O day on Liat ch, 2015. Elizabeth Dudek, Secretary Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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. Page 2 of 3 CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below- _— named persons by the method designated on this bike of Ltt , 2015. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings www.doah.state.fl.us (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration Lorraine.novak(@ahca.myflorida.com (Electronic Mail) David C. Ashburn, Esquire Michael J. Cherniga, Esquire M. Hope Keating, Esquire Greenberg Traurig, P.A. 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 ashburnd‘@gtlaw.com chernigam@gtlaw.com keatingh@gtlaw.com R. Terry Rigsby, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302 Turigsby@penningtonlaw.com Brian@penningtonlaw.com (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration Marisol .fitch@ahea.myflorida.com (Electronic Mail) Page 3 of 3 Miscellaneous AGENCY FOR HEALTH CARE ADMINISTRATION Certificate of Need DECISIONS ON BATCHED APPLICATIONS The Agency for Health Care Administration made the following decisions on Certificate of Need applications for Hospital Beds and Facilities batching cycle with an application due date of September 3, 2014: County: Brevard Service District: 7 CON #10233 Decision Date: 12/5/2014 Decision: A Applicant/Facility/Project: Indian River Behavioral Health, LLC Project Description: Establish a 74-bed child/adolescent psychiatric hospital Approved Cost: $16,737,262 County: Brevard Service District: 7 CON #10234 Decision Date: 12/5/2014 Decision: D Facility/Project: Parrish Medical Center Applicant: North Brevard County Hospital District Project Description: Establish a 20-bed comprehensive medical rehabilitation unit County: Broward Service District: 10-] CON #10235 Decision Date: 12/5/2014 Decision: A Facility/Project: Plantation General Hospital Applicant: Plantation General Hospital Limited Partnership Project Description: Establish a 200-bed replacement acute care hospital Approved Cost: $0 A request for administrative hearing, if any, must be made in writing and must be actually received by this department within 21 days of the first day of publication of this notice in the Florida Administrative Register pursuant to Chapter 120, Florida Statutes, and Chapter 59C-1, Florida Administrative Code. EXHIBIT 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE BEARINGS NORTH BREVARD COUNTY HOSPITAL DISTRICT d/b/a Parrish Medical Center, CASE NO.,: 15-0133CON CON NO. 10234 Petitioner, Vs. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION. Respondents. / NOTICE OF VOLUNTARY DISMISSAL North Brevard County Hospital District d/b/a Parrish Medical Center. by and through its undersigned counsel, hereby provides notice of its voluntary dismissal of its Petition for Formal Administrative Proceedings, by which it initiated Case No. 05-0133CON on January 8, 2015. Respectfully submitted this 26" day of January, 2015. GREENBERG TRAURIG, P.A. 101 East College Avenue Post Office Drawer 1838 Tallahassee, FL 32302 ‘Velephone: (850) 222-6891 Facsimile: (850) 681-0207 MICHAEL {CHERNIGA Florida Bar No. 328014 chernigam@gtlaw.com Counsel for North Brevard County Hospital District d/b/a Parrish Medical Center EXHIBIT 2 Filed January 26, 2015 12:39 PM Division of Administrative Hearings CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that the foregoing was filed by eALJ with the Division of Administrative Hearings. The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, and copy furnished 1o the following by electronic delivery this 26th day of January, 2015: Lorraine M. Novak, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Lorraine. Novak @ahca.myflorida.com Michael J. Chédiga _ TAL 451937932v1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS HEALTHSOUTH OF SEA PINES LIMITED PARTNERSHIP, d/b/a HEALTHSOUTH SEA PINES REHABILITATION HOSPITAL, Petitioner, Case No. 15-0132CON VS. NORTH BREVARD COUNTY HOSPITAL DISTRICT, d/b/a PARRISH MEDICAL CENTER and AGENCY FOR HEALTH CARE ADMINISTRATION, Respondents. HEALTHSOUTH OF SEA PINES LIMITED PARTNERSHIP, d/b/a HEALTHSOUTH SEA PINES REHABILITATION HOSPITAL’S NOTICE OF VOLUNTARY DISMISSAL Petitioner. HealthSouth of Sea Pines Limited Partnership, d/b/a HealthSouth Sea Pines Rehabilitation Hospital, by and through the undersigned counsel, hereby voluntarily dismisses its petition in the above-styled proceedings. Respectfully submitted this Lo day of January, 2015. (a R. am RRY Y RIGSB Y Florida Bar Number: a BRIAN A. NEWMAN Florida Bar Number: 0004758 PENNINGTON, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 (32302-2095) Tallahassee, Florida 32301 Telephone: 850-222-3533 Facsimile: 850-222-2126 nie: cerati . EXHIBIT 3 Filed January 26, 2015 1:45 PM Division of Administrative Hearings E-Mail: — trigsby‘@penningtoniaw.com brian’@penningtonlaw.com Attorneys for HealthSouth Sea Pines Rehabilitation Hospital CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed with by eALJ with the Division of Administrative Hearings. The DeSoto Building. 1230 Apalachee Parkway. Tallahassee, Florida 32399-3060, and copy furnished to the following by electronic delivery this ¢ day of January, 2015: Lorraine M. Novak, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive. Suite 3431 Tallahassee. Florida 32308 Lorraine. Novak ‘wahca.myflorida.com ae aaa in =f d — ATTORNEY oP 7D
The Issue The issue is whether the application filed by Humana Hospital Cypress for a certificate of need to operate an inpatient cardiac catheterization laboratory should be approved.
Findings Of Fact The parties Humana Cypress General description Humana Hospital Cypress (Humana Cypress) is a 273-bed acute care hospital in Pompano Beach, Broward County, Florida. Eighteen of its beds are intensive/cardiac care beds and 48 beds are telemetry beds, which are used to monitor cardiac patients. It is located within two miles of a publicly funded hospital, Imperial Point Medical Center, operated by the North Broward Hospital District. Humana Cypress is located in an area with a large population of the elderly. About 80 percent of Humana's patients are over 65 years of age. About 26 percent of its admissions in 1990 were primarily for cardiac related problems and another 14 percent had a secondary diagnosis which was cardiac related. Humana Cypress provides a broad range of services for the diagnosis and treatment of coronary problems, including electrocardiology, echocardiology, nuclear medicine heart studies, stress testing, holter monitoring, outpatient magnetic resonance imaging, and other non-invasive procedures. Humana Cypress has operated a cardiac catheterization lab for outpatients since outpatient services were deregulated by the Legislature. Humana Cypress has been fully accredited with the Department of Health and Rehabilitative Services and by the national accreditation group for hospitals, the JCAHO. Humana Cypress has contracts with preferred provider organizations, and several health maintenance organizations including an HMO known as Humana Medical Plan (HMP) which is owned by Humana, Inc., the parent company of Humana Cypress. Humana Cypress serves more HMP patients than any other Florida hospital. About 112,000 Humana Medical Plan members reside in Broward County, many of whom are served at Humana Cypress. The existing outpatient cardiac catheterization laboratory Humana Cypress opened an outpatient cardiac catheterization lab in March of 1988 after outpatient services were no longer subject to certificate of need review. That lab occupies about 500 square feet, with an adjacent control room of 120 square feet, and equipment room of 150 square feet. There is no minimum size for a lab in the Department's rules. The lab is located in the hospital's radiology department and has appropriate equipment. The room can also be used for arteriography and billiary drainage procedures. While the lab is rather small, its size is adequate. The use of the lab for other procedures limits the maximum number of caths it can perform, but the multiple uses enhances the efficiency of the use of the square footage of the lab. In the first half of 1991, 160 outpatient catheterizations were performed in the lab. The outpatient laboratory is an open laboratory, meaning that any physician who satisfies the criteria to obtain credentials for the lab may perform catheterizations. No one doctor has an exclusive franchise to provide all catheterizations at the lab, as is the case at some other hospitals. Five physicians with active staff privileges perform outpatient catheterizations at Humana Cypress. Those cardiologists who use Humana Cypress have privileges at other Broward hospitals. The outpatient lab is appropriately staffed. The medical director of the laboratory is Dr. Munusqamy, a board certified cardiologist who has 11 years experience performing catheterizations. The existing staff is sufficient to handle an increased volume of patients. In 1990 179 outpatient catheterizations were performed and volume increased during the first six months of 1991, when 160 catheterizations were performed. No patient required hospitalization immediately following the procedure. Patients admitted to Humana Cypress who need diagnostic cardiac catheterization cannot have the catheterization performed at the Humana Cypress cath lab, which is able to perform it, but instead are transported to a hospital which has a certificate of need to perform inpatient catheterizations. From a medical point of view, the lab at Humana Cypress will operate the same way it does now, whether or not the certificate of need for inpatient services is approved, although it will be used more intensively than it is now if the CON is approved. Florida Medical Center Florida Medical Center, Ltd. (FMC), is a 459-bed acute care hospital located in western central Broward County. It provides a broad range of cardiology services including both cardiac catheterization and open heart surgery. It is the largest provider of catheterization in HRS District X (Broward County), and the third largest provider of cardiac catheterization in this state. More than 3,000 catheterizations are performed there each year. It currently has three separate catheterization laboratories. Its open heart surgery program was the first one in Broward County and approximately 700 open heart surgeries are performed there each year. FMC provides a high quality care. It has contractual agreements with Humana to provide diagnostic cardiac catheterization, open heart surgery, angioplasty (i.e., therapeutic cardiac catheterization), and psychiatric services to Humana Medical Plan patients. The proposed service area for Humana Cypress' cardiac catheterization laboratory overlaps the service area of FMC. FMC served 110 Humana Medical Plan patients in 1990 in the two diagnostic related groups for diagnostic catheterizations, DRG #124 and #125. Humana Cypress would be able to perform these catheterizations if its CON application is approved. Those Humana HMO patients generated approximately $500,000 in gross revenues for FMC, i.e., total revenue for before taking into account the cost of providing the service to those patients. Humana, Inc., will have an incentive to redirect some portion of these patients to Humana Cypress, one of its own hospitals, if this application is approved. FMC has had a decline in its revenues, with a down turn in the total number of cardiac catheterizations. If the application of Humana Cypress is approved, FMC will lose patient revenue without a dollar-for-dollar decline in its costs. FMC, as an existing cardiac catheterization provider, will be adversely affected financially by approval of the certificate of need application filed by Humana Cypress and has standing to challenge the application. The Department of Health and Rehabilitative Services The Department of Health and Rehabilitative Services is the agency charged with making the determination of whether to issue a certificate of need. Section 381.701(4), Florida Statutes (1989). It's state agency action report proposed to deny the application. The Humana Cypress inpatient cardiac catheterization application Humana Cypress proposes to establish inpatient cardiac catheterization services by conversion of its present outpatient catheterization laboratory. This application involves no new capital expenditures. The capital expenditures were made when the lab was built and equipped. Interest expenses were incurred as a result of the equipment purchase and the cost is being depreciated by the hospital. No space must be converted to accomplish diagnostic catheterizations for patients admitted to the hospital. The project cost of $260,000 stated in the application reflects the book value of the new equipment purchased when the outpatient lab was established more than four years ago. No additional hospital staff will be needed to provide inpatient catheterization services. The five cardiologists and existing staff can accommodate the projected additional patient volume. Should a patient require open heart surgery as an immediate consequence of catheterization, Humana Cypress has an agreement to transport the patient to Holy Cross Hospital for that surgery. The hospital projects that inpatients who receive cardiac catheterization will have their bills paid in the following ways: 32 percent by Medicare, 5 percent by Medicaid, 51 percent by Humana Medical Plan, 4 percent by other health maintenance organizations, 5 percent through commercial insurance, and 3 percent of its billings will go unpaid as service to indigent persons. It projects 265 caths in the first year of operation with approval to serve patients admitted to the hospital, and 320 in the second year. Half of these patients are projected to be inpatients and half outpatients. Consistency with statutory criteria Need in relation to the state health plan and the District X local plan, Section 381.705(1)(a), Florida Statutes The state health plan The need methodology found in the rule does show a need for one additional program. The certificate of need statute requires than an application be consistent with the state health plan. FMC exhibit 3 is the portion of the state health plan pertaining to diagnostic catheterization. It states four preferences. These preferences are used in ranking competing applications for inpatient cardiac catheterization services filed in the same batching cycle. The very title of "preferences" shows that they are not minimum criteria which an applicant must meet. The first is that preference should be given to an applicant which provides both cardiac catheterization and open heart surgical services, but as the plan acknowledges, [s]ince 1983, Florida has permitted hospitals to perform diagnostic cardiac catheterization without an open heart surgery program, but they must have an open heart surgery program to perform therapeutic cardiac catheterization procedures. In Florida, 23 hospitals now have cardiac catheterization programs without an open heart surgery program and six of these have been approved for open heart surgery programs. (State Health Plan at 69.) The second preference is to establish new catheterization programs in counties where catheterization is unavailable. This is inapplicable to Broward County, where catheterization is available at nine hospitals according to Table 19 of the State Health Plan. Applications filed by hospitals with a history of providing a disproportionate share of charity care and Medicaid patient days are to receive preference. Since there are no competing applications, this preference is irrelevant. The fourth preference is that applicants who agree to provide services without regard to the patient's ability to pay should be approved. This preference is, likewise, inapplicable, because there is no competing application. The district health plan The District X comprehensive health plan for 1990 was the most recent plan in effect when Humana Cypress filed its application. Like the State Health Plan, it contains preferences. The first preference is similar to the fourth preference in the state health plan, and looks more favorably on applications which reflect a willingness to serve people without regard to ability to pay. As with the state preference, it is not applicable here in the absence of a competing application. The second preference would give priority to applications proposing catheterization laboratories with existing open heart surgical capabilities, and it too is inapplicable because there is no competing applicant. Availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of existing services. Section 381.704(1)(b), Florida Statutes No party contends that existing hospital catheterization laboratories fail to provide high quality care in Broward County. Given the nine hospitals listed in the state health plan as approved to provide catheterization (State Health Plan Table 19 at page 63) there is no problem with geographic accessibility. The North Broward Hospital District hospitals, and the South Broward Hospital District through Memorial Hospital, provide most of the indigent care in the county. The approval of this application will not improve economic access to diagnostic catheterization in a significant way, for only a small number of Medicaid and indigent patients are likely to be served. See Finding 43 below. There is no persuasive evidence that the existing indigent care providers are over-utilized or in any other way inadequate. The same is true for the privately owned hospitals in Broward which serve predominantly paying patients. A catheterization laboratory has the capacity to provide about 1,200 cardiac catheterizations annually (260 workdays x 4.5 caths in one 8-hour shift). Among the nine providers there are 14 existing laboratories in the district (not counting the third backup laboratory at Holy Cross Hospital) so there is capacity in the current providers to perform 16,800 cardiac catheterizations. Eight thousand five hundred were performed in 1989. The relatively new catheterization service at a North Broward Hospital District facility, Imperial Point, provided 221 catheterizations in 1990, and North Broward Hospital provided 347. Both do have room for additional growth, but there is no persuasive evidence that disapproval of this application would have the effect of shifting any patients to those facilities. During the 12-month period the rule uses to calculate need. April 1989 to March 1990, 8,819 catheterizations were performed in District X. The rule projects a need for 9,452 catheterizations during the 1991 planning horizon year for this batching cycle. For the period April 1990 through March 1991, 10,200 caths were performed in District X and in the first quarter of 1991 3,300 caths were done, which, using straight line projections, would show a total of 13,200 in the year 1991, still well below the 16,800 which could be performed at existing laboratories. This growth in catheterizations may be due to the growth in therapeutic catheterizations, also known as angioplasties. Angioplasty is assigned DRG Code 112, while diagnostic catheterizations fall under DRGs 124 or 125. Hospitals report their procedures by DRG number to the Florida Health Care Cost Containment Board. The number of angioplasties increased in Broward County from 1,608 in 1988 to 2,097 in 1990, an increase of about 30 percent, but Humana Cypress would never be permitted to perform angioplasties unless it first received CON approval to operate an open heart surgery program, since on-site open heart surgery backup is necessary to provide angioplasties. Rule 10-5.032, Florida Administrative Code. The Health Care Cost Containment Board data for 1988-1990 show that inpatient diagnostic catheterizations have actually declined from 3,345 in 1988 to 1,949 in 1990. It appears that there is actually a declining demand for inpatient diagnostic catheterization. This is not surprising, because the Legislature deregulated outpatient services in 1987 and by 1988 many hospitals, including Humana Cypress, began to perform outpatient catheterizations. The population of Broward may be aging, and during the period from 1988 to 1990, the total number of inpatient cardiac discharges, which is a category much broader than cardiac catheterizations, has remained relatively constant. This indicates limited growth in the need for inpatient cardiac care services. There is no need to approve the application of Humana Cypress in order to expand the availability, accessibility or efficiency of inpatient cardiac catheterizations in Broward County, or to ameliorate any over-utilization or inadequacy of existing programs. Quality Care. Section 381.705(1)(c), Florida Statutes The current outpatient program at Humana Cypress provides high quality patient care. Because the outpatient catheterization laboratory at Humana Cypress is fully equipped, fully operational and fully staffed, no additional health care dollars need be spent to bring another inpatient provider into the health care delivery system. The more procedures a hospital does, the more proficient the staff becomes and patient outcomes improve. The outpatient lab performed 160 caths in the first six months of 1991, which would be 320 caths on an annualized bases, and still performed 80 other special (non catheterization) procedures. The volume is sufficient to insure quality care. There is no persuasive evidence that approval of this application would prevent the new program at Imperial Point from achieving the minimum volume of 300 caths per year within two years of beginning the service. The minimum volume is required to assure that high quality care is provided at each approved hospital. Alternative to diagnostic catheterization. Section 381.705(1)(d), Florida Statutes No non-invasive procedure serves as an alternative to diagnostic catheterization. The current practice of transferring patients admitted to Humana Cypress who need diagnostic catheterization to another hospital that has received CON approval for inpatient catheterization for the procedure, and returning them to Humana Cypress is wasteful. Necessary health manpower and management personnel, accessibility to district residents. Section 381.705(1)(h), Florida Statutes Humana Cypress has appropriate management and health care staff to operate the catheterization program as an inpatient program. The program is geographically accessible to all residents of Broward County. Probable impact of the proposed project on the cost of providing health services including the effects of competition and promotion of quality assurance and cost effectiveness. Section 381.705(1)(l), Florida Statutes Humana Cypress has a low occupancy rate. It has reduced ancillary services according the occupancy, and avoided staffing empty beds in an effort to control costs. Obviously the hospital would like to add inpatient cardiac catheterization to increase its occupancy levels so that it can spread its fixed costs over a larger patient base. In its application, Cypress projects that it will charge $8,875 for diagnostic catheterization, but at hearing a witness testified that the amount was in error, overstating the charge by $1,625, so that Cypress would probably have a list charge of approximately $7,250 for DRGs #124 or #125. It is extremely difficult to assess the significance of the difference, since almost no one pays any hospital's gross or list charges. Medicare patients are billed based upon what Medicare will pay if they qualify by age for Medicare. Most health insurers have negotiated fees with hospitals (i.e., the hospital becomes a "preferred provider" to the insurer's policyholders), at very substantial discounts below list charges. These are a hospital's "net charges." List charges are developed because they are the basis for Health Care Cost Containment Board regulation of hospital charges. The most that can be said of the evidence, taken together, is that Humana Cypress will probably charge approximately what the district wide average charges are for diagnostic catheterizations, a figure closer to the $8,875 found in the application, and that charge will have little effect upon price competition. There is little reason to believe that Humana Cypress will significantly undercut charges at other hospitals so that patients will prefer Humana Cypress and leave other providers or that by cutting list charges, it would attract significantly more patients. Most of its revenue will come from Medicare, Medicaid, Blue Cross and Humana Medical Plan, which will reimburse Humana Cypress on a fixed per diem basis without regard to the gross or list charge projected in the application. Financial feasibility. Section 381.705(1)(i), Florida Statutes FMC and the Department of Health and Rehabilitative Services stipulated that the project is financially feasible, except for the application's utilization projections. Given the negligible incremental costs of providing services currently performed for outpatients to hospital inpatients, the project is feasible. Humana Medical Plan HMO patients can be redirected with economic incentives away from non-Humana hospitals through plan provisions for co-payments or in other ways, and instead encouraged to use to Humana Hospital Cypress, which would be to the advantage of the parent company, Humana, Inc. The projection found in the application that 51 percent of the diagnostic catheterizations would be performed on patients subscribing to Humana Medical Plan is quite reasonable. It is likely that Humana Cypress will be able to perform 265 caths in its first year of operation and 320 in the second year. This project is financially feasible in the long and short term. The applicants' past and proposed provision of health care services to Medicaid patients and the medically indigent. Section 381.705(1)(n), Florida Statutes Humana Cypress has projected that five percent of its cardiac catheterization patients would be Medicaid patients and three percent would be charity care patients (Humana exhibit 5, attachment III.e.). Humana Cypress has never historically provided that amount of indigent care or Medicaid care through its existing outpatient cardiac catheterization laboratory. In 1989 no for-profit hospital in Broward County (including Humana Cypress or its sister hospital, Humana Bennett) reported any charity care to the Health Care Cost Containment Board. In 1990 Humana Cypress reported $175,111 of charity care to the Health Care Cost Containment Board, which equaled to two tenths of one percent of gross charges. Five percent of the inpatients receiving catheterization probably will not be Medicaid patients. Humana Cypress only recently became a Medicaid provider in September 1990. According to Health Care Cost Containment Board 1989 financial data for all hospitals in Broward County, the average of patient charges attributable to Medicaid patients was 1.6 percent of total charges, with Humana Cypress having provided one percent, and its sister Humana hospital, Humana Bennett, having provided only three tenths of one percent. The State Health Plan discloses that the percentage of Medicaid diagnostic cardiac catheterizations throughout Florida is just one percent. State Health Plan, page 63, figure 31. Data for Broward County are similar. The volume of Medicaid catheterizations is small because Medicaid population is not of a type which generally requires diagnostic cardiac catheterization. The two largest Medicaid groups are women of child bearing age, and the elderly, whose catheterization charges are covered by Medicare. District wide, a total of 12 Medicaid discharges were reported for DRSs #124 and #125. Assuming Humana Cypress meets its projected volume of 265 patients in year 1, five percent would equal 13 Medicaid patients. It is most unlikely that Humana Cypress will serve, in its first year, more Medicaid patients than all other district hospitals combined. Moreover, physician practice patterns in Broward County are such that physicians generally refer the indigent to the publicly funded and tax supported hospitals operated by the North Broward and South Broward Hospital Districts, not to for-profit hospitals such as Humana Cypress. But see, Finding 43, below. It is likely that Humana Cypress will provide no more than one percent of its diagnostic catheterization services to Medicaid patients. The indigent care policy for Humana Cypress, found in Humana exhibit 3, is that it "does not refuse emergency care to any person based on his or her ability to pay. Humana Hospital Cypress' policy is to treat every emergency patient upon their arrival at the hospital, and to not withhold any needed service because an individual lacks the financial resources to pay for needed care." (Humana exhibit 3, page 22) This policy contains no specific commitment to indigent care. It focuses on people who present themselves at the emergency room. Most of the indigent care provided is provided through the emergency room. Diagnostic catheterizations are most often scheduled elective procedures, and not emergency procedures, so as a practical matter they would not fall under the hospital's indigent care policy. Humana Cypress has affiliated with the East Broward Medical Foundation, a not-for-profit entity made up of physicians and health care providers. Primary care physicians are part of this network and these physicians do make referrals to specialists, such as cardiologists who perform diagnostic catheterizations. Participation by Humana Cypress in this network does indicate an attempt to break existing practice patterns and to increase indigent care. The physician committee at Humana Cypress has agreed to serve indigents referred by the Foundation. Nonetheless, this relationship has not matured to the point that it is reasonable to project three percent indigent care and five percent Medicaid care would be reached in the inpatient cardiac catheterization program or in the total program, including outpatients. While Humana Cypress will achieve 265 patients in year 1 and 320 patients in year 2, half of whom will be inpatients, the projected levels of service to indigent and Medicaid patients are unlikely to be achieved. It is more likely than not that only one percent of the catheterizations will be performed on Medicaid patients and another one percent on indigents. This weighs only slightly in favor of the application. H. Whether there are less costly, more efficient or appropriate alternatives to the proposal made in the application. Section 381.705(2)(a), Florida Statutes In general, Humana operates Humana Cypress at a 40 percent occupancy rate. To compensate for this low rate of occupancy, hospital management has down-sized ancillary services so that, if one ignores the unused potential for additional occupancy at the facility, Humana Cypress can be said to operate efficiently. It had the lowest cost per adjusted admission of any hospital in the county for 1989 and for 1990, the last years for which data was available. In 1990 its cost per adjusted admission was $3,829. Humana Cypress does not project that patients admitted to the hospital for catheterizations falling under DRG Codes 124 and 125 would pay only that average cost per adjusted admission. Rather, it projects that the cost for inpatients would be $8,875 (See Finding 34), which is below the charges for many other Broward hospitals (this is based on 1989-90 data and inflated forward to 1991 to be consistent with the bases on which Humana Cypress' projection of its costs were made). The costs for DRGs 124 and 125 at North Ridge Medical Center would be $10,293; at Broward General Hospital $10,497; at Plantation General Hospital $10,814; at Memorial Hospital of Hollywood $9,209; at North Broward Medical Center $9,938; and at Humana Hospital Bennett $10,797. Imperial Point Medical Center would have an average charge below that of Humana Cypress ($7,367) as would Holy Cross Hospital ($7,033). Imperial Point's catheterization laboratory is relatively new and has excess capacity. As a result, the most efficient alternative to providing diagnostic catheterization at Humana Cypress would be to attempt to shift those patients to a lower volume, but efficient provider, Imperial Point. There is no way to force candidates for catheterization to Imperial Point, however. Humana can attempt to shift its own HMO patients to Humana hospitals by its pricing policies, e.g., co-payment and PPO arrangements with non-Humana hospitals can encourage subscribers to use Humana hospitals. Humana argues that approval for its application would promote price competition and increase patient choice (Cypress Recommended Order, page 20, paragraph 70). There is generally little price competition for catheterization, see Finding 34, above. Moreover, of the eight group IV hospitals (hospitals which generally have a similar mix of intensity of illness of their patients, whose costs therefore are roughly comparable according to the HCCCB), Humana owns four of these eight hospitals. It is difficult to understand what incentive Humana has to promote price competition among the four hospitals it owns. The competition argument is not nearly so persuasive as it would be if all hospitals were independently owned and had reason to compete against each other on price, but there will be some price competition among the remaining four facilities. Whether existing inpatient facilities are being used in an appropriate and efficient manner. Section 381.705(2)(b), Florida Statutes There is no persuasive evidence that existing inpatient facilities are being used in an inappropriate manner or that they are operating inefficiently. Obviously, with a new program, Imperial Point Medical Center has the ability to grow and, as pointed out above, it is a very cost efficient provider. But that is not quite what this statutory criteria focuses upon. At best, this factor is neutral, because there are no existing providers that are operating inefficiently or inappropriately. The fixed need pool challenge filed by FMC. Florida Medical Center has challenged the calculation of the fixed need pool published on August 10, 1990, because the rule upon which the calculation had been based was determined to be invalid in the case of Department of Health and Rehabilitative Services v. Florida Medical Center, 578 So.2d 351 (Fla. 1st DCA 1991). It has not challenged the revised mathematical calculation which shows the need for one additional catheterization program in District X, which the Department published on September 7, 1990. It is the position of Florida Medical Center in the proposed order that: At the time the Department published its fixed need pool, there was no valid cardiac catheterization rule; therefore, whatever methodology was used to produce the pool is invalid. (Proposed Recommended Order of Florida Medical Center, Conclusions of Law at 22). This is different from the position expressed by Florida Medical Center in the prehearing stipulation, which states its challenge in this way: Florida Medical Center believes that the rule we should be litigating under is the rule published by the Department of Health and Rehabilitative Services in the July 5, 1991, issue of the Florida Administrative Weekly, with the exception of the two sentences, listed below, which were contained in the original publication. The Court held that those two sentences could not be modified as HRS attempted to modify them, without a new point of entry. These sentences FMC contended should be excised from the rule read: Departmental Intent . . . It is the intent of the Department to allocate the projected growth and the number of cardiac catheterization admissions to new providers regardless of the ability of existing providers to absorb the projected need. and 8. Need Determination. In order to assure patient safety and staff efficiency, to prevent the unnecessary duplication of services, to foster competition among providers, and to achieve maximum economic use of existing resources, the following criteria shall be considered in the approval of certificate of need applications for new adult cardiac catheterization programs. . . . (Original language struck through, added language underlined.) The Court of Appeal held that the amendments made in the rule by the language quoted above were procedurally irregular, and so invalidated those changes. The Department corrected its procedural error by republishing amendments to the catheterization rule in the July 5, 1991, edition of the Florida Administrative Weekly. It deleted the language regarding fostering competition which had been disapproved by the appellate court, but did not reinsert the original language regarding "unnecessary duplication of services." Florida Medical Center had argued that those words must be read into the Department's rule as a matter of law. This argument is unpersuasive on the issue of the size of the fixed need pool for the batching cycle. The major significance of the rule is the mathematical computation of need, which was not challenged in the prehearing stipulation and is not affected by the two sentences FMC challenged. Based on the unchallenged portion of the rule, there is a mathematical need for one additional inpatient diagnostic catheterization program in District X (Broward County). The fixed need pool the Department published in its September 7, 1990, revision is correct.
Recommendation It is recommended that the application of Humana Hospital Cypress for approval of a certificate of need to offer inpatient diagnostic cardiac catheterization be granted, with the condition that it be required to meet the projections for providing service to Medicaid and indigent persons made by Humana Cypress in its application, and that the challenge filed by Florida Medical Center to the revised fixed need pool calculation for the batching cycle, showing a need for one additional inpatient diagnostic catheterization program be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 31st day of July 1992. WILLIAM R. DORSEY, JR. 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 31st day of July 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-6251 AND 91-1612 Rulings on findings proposed by Human Cypress. 1-4. Adopted in preliminary statement. 5 & 6. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 8. Adopted in Finding 3. Adopted in Findings 4 and 5. Adopted in Findings 6 and 8. Adopted in Findings 6 and 8. Adopted in Finding 8. Adopted in Findings 8 and 16. Adopted in Finding 7. Adopted in Finding 15. Rejected for the reasons stated in the Conclusion of Law 14. See also Finding of Fact 15. Adopted in Finding 15. Adopted in Finding 17. Rejected as subordinate to Finding 16. Rejected as unnecessary. Adopted in Finding 18. Rejected as redundant to Finding 18. Rejected as unnecessary. Rejected as unnecessary. 26 & 27. Adopted in Finding 24. 28 & 29. Rejected as unnecessary. The entire county is the unit of analysis, not east and west halves. See also Finding 27. First sentence rejected as unnecessary. Second rejected as subordinate to Finding 8. Sentence three rejected as unnecessary. Sentence four rejected as unnecessary, as no party has challenged the quality of care at Humana Cypress. Sentence five adopted in Finding 33. Rejected as subordinate to Finding 9. Adopted in Finding 31. 33 & 34. Generally adopted in Finding 31. 35 & 36. Rejected as unnecessary. 37-39. Generally rejected as unnecessary. The version of the rule Humana Cypress relies upon was invalidated by the Court of Appeal. Department of Health and Rehabilitative Services v. Florida Medical Center, 578 So.2d 351, 353 (Fla. 1st DCA 1991). 40-42. Generally rejected as argument. The testimony of Dr. Luke was not persuasive on the growth issue. 43. Generally discussed in Finding 18. Diagnostic catheterization programs are not limited to facilities which provide open heart surgery, and therapeutic catheterization. 44-46. The persuasive testimony is adopted in Finding 27. It is likely that diagnostic catheterization has decreased as outpatient diagnostic catheterization has become available. 47-51. Generally rejected as subordinate to Finding 6. There is no serious architectural problem with the application submitted by Humana Cypress. The Department was able to evaluate it. Adopted in Finding 3. Generally adopted in Finding 6. The lack of mortalities is irrelevant. Quality of care is not at issue. 54 & 55. Rejected as unnecessary. Quality of care is not at issue. 56. Adopted in Findings 7 and 16. 57 & 58. Generally rejected as subordinate to the finding of wastefulness. See Finding 31. 59-60. Rejected as unnecessary. 61. See Findings 6-9 and 31. 62-64. Generally adopted in Findings 33 and 44. 65-67. Generally adopted in Finding 34. The assertion that few patients pay full charges is adopted in Finding 34. What Humana Cypress will actually receive will depend on what it negotiates, and is quite difficult to project Adopted in Finding 34. Generally rejected for the reasons stated in Finding 45, though there will be some price competition. 71 & 72. Generally adopted in Finding 44. 73 & 74. Adopted in Findings 17 and 35. Implicit in Findings 6 and 8. Rejected as unnecessary. Adopted in Findings 5 and 35. Rejected as unnecessary. Rejected because economic access is a major issue in CON review, not withstanding a low utilization rate for catheterization by Medicaid or indigent patients. Adopted in Finding 38. Subordinate to Finding 38. Adopted in Finding 39. Rejected as unnecessary; it was Humana Cypress who based the application the projections of five percent Medicaid and three percent indigent or charity care. Adopted in Finding 38. There is little reason to believe that the total hospital experience of five percent Medicaid would be reflected in diagnostic catheterization, however, as Humana Cypress did in its application. Rejected for the reasons stated in Findings 41-43. Sentence adopted in Finding 36. Sentence two rejected because Humana Cypress has not provided five percent Medicaid and three percent indigent care for catheterization inpatients. Sentence three, if true, will cause Humana Cypress to accept the condition proposed for its certificate of need. Adopted in Finding 43. Generally adopted in Finding 43. Rejected as argument. 90-94. Generally adopted in Findings 18-21. 95 & 96. Rejected as unnecessary. 97-99. Adopted in Finding 22. 100-103. Rejected as unnecessary. 104. See the discussion in Findings 36-43. 105. Adopted in Finding 3. 106. Adopted in Finding 8. 107. Adopted in Finding 16. 108. Rejected as unnecessary. 109. Accepted in Finding 34. 110-117. Generally rejected. There will be some adverse impact on FMC, but not a sufficient impact that it will impair the quality of care at FMC. Rulings on findings proposed by the FMC. Adopted in Finding 10. Rejected as unnecessary, the quality of care at Broward providers is not an issue. Adopted in Finding 10. First sentence adopted in Finding 11. The remainder is rejected as unnecessary. Adopted in Finding 12. Adopted in Finding 13, but it is difficult to make any projections for revenue declines based on the experience of one month (i.e., June). Adopted in Finding 13. Adopted in Finding 14. 9-11. Adopted in Findings 1, 8 and 9. Adopted in Finding 22. Rejected as unnecessary. Sentence one adopted in Finding 3. The architectural specifications are adequate, so sentence two is rejected. Adopted in Finding 36. Adopted in Finding 37. Adopted in Finding 38. Adopted in Finding 38, although the finding with respect to Bennett is rejected as unnecessary. Adopted in Finding 38. Adopted in Finding 39. Adopted in Finding 43. Rejected as unnecessary, see also Finding 39. Adopted in Findings 39 and 40. Adopted in Finding 41. Adopted in Finding 42. Adopted in Finding 42. Rejected as unnecessary. Rejected because there is no persuasive evidence that approval of the Humana Cypress application will drive any existing or indigent care provider below 300 catheterizations per year, a level required for quality care. Imperial Point did not feel sufficiently threatened to intervene in this proceeding, which is significant to me. Rejected as unnecessary. See prior ruling. Rejected for the reasons given for rejected proposed finding 28. See also Finding 44. Rejected as unnecessary, this application has been "carefully evaluated." Rejected as unnecessary. Adopted in Findings 25 and 26. Adopted in Finding 27. Generally adopted in Finding 27. Adopted in Finding 27. Rejected as unnecessary, the inquiry is not limited to the Cypress service area. Generally adopted in Finding 28. Adopted in Finding 23. Rejected because the application has not been evaluated on the basis of Cypress' location in a "medically underserved area." Adopted in Finding 1. Adopted in Finding 28. Service to indigents is covered in Findings 41-43. Adopted in Finding 23. Rejected because the service area of Cypress is not the unit of analysis, but see Finding 23. Adopted in Finding 34. Generally adopted in Finding 34. Generally discussed in Finding 34. For the most part, gross charges are not significant in CON regulation. Because they are not the basis of a hospital's income. 49-53. Rejected because the indigent care providers did not participate in this case, which gives rise to the inference that they do not feel the need for protection from additional competition by Humana Cypress. Rejected because there is no reason to believe that denial of this application would have the affect of forcing additional patients to Imperial Point. Rejected for the reasons stated in Findings 33 and 44. Rejected for the reasons stated in Findings 33 and 44. Discussed in Finding 45. Rejected because there is insufficient reason to believe that the experience at Humana Bennett will be replicated at Cypress. Even if it is, the constraints on prices because few, if any, patients pay gross charges will keep the price from rising much above the district average. Rejected because the public providers have not objected to the certificate of need, and therefore it is not clear that they require protection for competition by Humana Cypress. Rejected as redundant. Rejected because there is no reason to believe that rejection of this application will force any patients to use the hospitals which are indigent care providers. Rejected because it is not necessary for Cypress to show that specific patients are going without cardiac catheterization in order to have its application approved. Rejected because, on balance, the criteria tilt in favor of granting the application. Rulings on findings proposed by the Department. Adopted in Finding 14. Adopted in Finding 1. Adopted in Finding 8. 4 & 5. Generally adopted in Finding 8. 6 & 7. Generally adopted in Findings 10 and 11. 8 & 9. Discussed in Findings 18-21. Discussed in Finding 25. Adopted in 1, but the finding of adverse impact on Imperial Point is rejected. Imperial Point did not seek to intervene to protect its program from additional competition. Discussed in Finding 23. Rejected, the HCCCB data in Finding 27 is more relevant. Rejected because inpatient caths declined, due to the availability of outpatient services. Adopted in Findings 6 and 25. Rejected as unnecessary. This fact is only significant when coupled with the new availability of outpatient caths. Adopted in Finding 26. Adopted in Finding 28. Adopted in Finding 27. Rejected because the unit of analysis is the District (Broward County) as a whole. Adopted in Finding 22. Adopted in Finding 41. Adopted in Finding 42. 24 & 25. Adopted in Finding 23. 26 & 27. Adopted in Finding 30. Rejected, see Finding 35. Rejected. This laundry list of factors is unhelpful. Rejected. While there is no single accepted means to project need, the projection methods advocated by Cypress were reasonable. Rejected. The number of caths in the outpatient program has been limited because inpatients cannot be cathed at Cypress. The HMP patients projected are very likely to come to Cypress, and the additional patients (other than Medicaid and indigent) are reasonable projections. Adopted in Finding 6. Rejected. See Finding 6. Generally adopted in Finding 28. Generally adopted in Finding 27. Rejected as unnecessary, but see Finding 10. Adopted in Findings 37 and 38. See Finding 38, based on changes, rather than on patient days. See Finding 37. The District average is large because so many Broward hospitals are tax-supported ones operated by the North or South Broward Hospital districts. 41-43. Rejected as unnecessary. Cross subsidizations for tax supported hospitals is not something the CON law specifically projects. Rejected as unnecessary. Adopted in Finding 15. Rejected, see Finding 44. Rejected. It is not rational to assume costs across hospitals will be the same. This is a matter of proof, not assumption. Adopted in Finding 40, but sentence two is rejected. Rejected as unnecessary. Rejected because rejection of this application will not "force" patients to "lower cost" procedures. Adopted in Finding 23. 52 & 53. Implicit in Finding 28. 54. First three sentences implicit in Finding 28. Last sentence rejected as unsupported by convincing evidence. COPIES FURNISHED: James C. Hauser, Esquire Suite 701 215 South Monroe Street Post Office Box 1876 Tallahassee, Florida 32302-1876 Lesley Mendelson Assistant General Counsel Department of Health and Rehabilitative Services Suite 103 2727 Mahan Drive Tallahassee, Florida 32308 Eric B. Tilton, Esquire 241-B East Virginia Street Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether or not there is a need for additional CMR beds at Pinecrest Rehabilitation Hospital based on the special circumstances provision of Rule 59C-1.039 and whether or not, on balance, the application for CON No. 8770 meets the other applicable criteria of the rules and statutes.
Findings Of Fact Pinecrest Rehabilitative Hospital ("Pinecrest") is a 90-bed comprehensive medical rehabilitation ("CMR") hospital which is physically connected to the Delray Medical Center ("Delray") in Delray Beach, Palm Beach County, Florida. Pinecrest, Delray, a 120-bed nursing home, and a 102-bed psychiatric hospital are located on the Delray medical campus and are subsidiaries of Tenet Healthcare Corporation ("Tenet"). Tenet owns 131 acute care hospitals and 25 specialty hospitals in the United States. Delray, a 235-bed acute care hospital, is the designated trauma center for southern Palm Beach County. Unlike most acute care hospitals which average occupancy rates of 50 percent, Delray reports 85 to 90 percent occupancy. Catering to an older population within its service area, Delray's services include cardiac and orthopedic surgery, but not obstetrics. The Agency for Health Care Administration ("AHCA") is the state agency responsible for the administration of the certificate of need ("CON") program. After determining that no need exists for additional CMR beds in District 9, AHCA preliminarily denied Pinecrest's application for CON 8770. Palm Beach County is located in AHCA District 9, which also includes to the north, Martin, Indian River, St. Lucie and Okeechobee Counties. Approximately 80 percent of the population in District 9 is concentrated in Palm Beach County. The existing District 9, CMR service providers are St. Mary's Hospital ("St. Mary's"), Lawnwood Regional Medical Center ("Lawnwood"), and Healthsouth of Treasure Coast ("Healthsouth"). At the time Pinecrest filed the application for CON 8770, there were 183 licensed and 73 approved CMR beds at the existing District 9 facilities. Like Delray, St. Mary's is an acute care hospital which is a county-designated trauma center. St. Mary's is located in the City of West Palm Beach, approximately 25 miles north of Delray Beach. St. Mary's has recently expanded from 23 CMR beds to 50 beds, and is accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF) as a comprehensive inpatient category one hospital. Lawnwood is a 365-bed acute care hospital in Fort Pierce, in St. Lucie County. Lawnwood recently opened a 26-bed CMR unit. Healthsouth is a specialty rehabilitation hospital which, like Pinecrest, was previously owned by National Medical Enterprises ("NME"). NNE operated the facility as Treasure Coast Hospital before selling it to the Healthsouth Corporation. It is located in Vero Beach, in Indian River County, approximately a two-hour drive north of Delray Beach. Healthsouth has recently increased its capacity from 70 to 90 beds. Healthsouth treats some brain and spinal cord patients and is accredited by CARF as a comprehensive inpatient category one hospital. Primarily, Healthsouth treats stroke and orthopedic patients, along with some cardiac, neurological and ventilator patients. Healthsouth, as described by its expert, is primarily an Indian River provider with a market presence in the remaining three northern counties. Pinecrest opened in April 1986, with 60 beds, and expanded to 90 beds in August 1993. Within ten days of opening the additional 30 beds, Pinecrest exceeded and has continued to exceed 90 percent occupancy. The existing 90 beds are organized into a 30-bed stroke unit, a 30-bed orthopedic and pain unit, and a 30-bed medically complex patient unit. Separate therapy and treatment pods serve the different kinds of patients. The facility includes an outpatient unit, one of seven operated by Pinecrest. Each of the remaining outpatient centers is located in approximately 15-minute driving increments from the hospital with the most distant from Pinecrest located on the same street as St. Mary's, in West Palm Beach. Pinecrest is a state- designated vocational rehabilitation facility, with CARF accreditation in categories one (medical rehabilitation programs) and three (skilled nursing), and for specialized rehabilitation programs for spinal cord injuries, pain management, and brain injuries. The staff at Pinecrest includes speech, respiratory, occupational and physical therapists. The medical staff at Pinecrest has approximately 250 physicians, sixteen specializing in physical medicine and rehabilitation, or physiatry. Pinecrest's inpatients have an average length of stay (ALOS) of 14 to 15 days. Occupancy levels ranged from 93.7 percent in 1994 to 94.6 percent in 1996. At the reported occupancy levels in the mid-90 percent, Pinecrest is effectively full, taking into consideration the logistics of discharge planning and admissions, and the need to place patients of the same gender together. In addition, Health Care Finance Administration ("HCFA") rules dictate the appropriate diagnoses for 75 percent of the patients in CMR hospitals. Approximately, 80 percent of the Pinecrest patients reside in southern Palm Beach County, in general in the areas of Delray Beach, Boynton Beach, and Boca Raton. In 1996, a total of 4,790 patients were referred to Pinecrest, of which 2,078 were admitted. In the same year, 119 patients were refused admissions to Pinecrest due to a lack of an available bed, in addition to those whose admissions were delayed and those who were rejected to maintain compliance with HCFA guidelines. Healthsouth and AHCA contend that no need exists for Pinecrest's proposed expansion based on zero numeric need using the CMR rule methodology, a failure to meet special circumstances listed in the CMR rule, recent openings of new beds in the District, and projected future constraints on CMR utilization. Numeric Need For the 1997 batching cycle in which the application for CON 8770 was filed, AHCA published a fixed need for zero additional CMR beds in AHCA District 9. The need formula indicated a need for 234 CMR beds for the July 2002 planning horizon, as compared to 183 licensed and 73 approved, or a total of 256 CMR beds in February 1997. In the 183 existing CMR beds, historically occupancy rates have averaged 94 percent. Special Circumstances Rule 59C-1.039(5)(e), Florida Administrative Code, lists special circumstances for the issuance of a CON to expand an existing facility in the absence of numeric need, as follows: . . . if the occupancy rate of the hospital's licensed comprehensive medical rehabilitation inpatient beds was at least 90 percent for at least two consecutive calendar quarters during the 12-month period ending 6 months prior to the beginning date of the quarter of the publication of the fixed bed need pool; and at least one of the following conditions is also met: The applicant submits evidence that it has a specialty inpatient rehabilitation service, accredited as a specialty by the Commission on Accreditation of Rehabilitation Facilities (CARF), that is not available elsewhere in the district, and the applicant's high occupancy occurred in the specialty rehabilitation service beds; or The applicant is a disproportionate share hospital as determined consistent with the provisions of section 409.911, Florida Statutes, and the applicant submits evidence that it has been providing both Medicaid and charity care days in its comprehensive medical rehabilitation inpatient beds. (Emphasis added). The three requirements related to occupancy rate, CARF accreditation, and high occupancy in specialty rehabilitation service beds are at issue in this proceeding. The alternative provision related to disproportionate share providers, does not apply to Pinecrest, since CMR hospitals cannot participate in the disproportionate share program. Pinecrest meets the requirement of having an occupancy rate of at least 90 percent for at least two consecutive quarters in the year ending 6 months before the fixed need publication. In fact, Pinecrest has exceeded 90 percent occupancy for the last 20 consecutive quarters. The parties agree that Pinecrest also meets the accreditation requirement by having CARF-accredited programs to treat traumatic brain injuries and spinal cord injuries, the only ones in the District. The parties disagree over the appropriate interpretation of the phrase in the rule which requires that ". . . the applicant's high occupancy occurred in the specialty rehabilitation service beds." Healthsouth and AHCA interpret the provision as requiring high occupancy in the CARF-accredited services beds, consistent with the requirement that the applicant provide CARF-accredited services not otherwise available in the district. AHCA's expert testified that the provision is meaningless unless the occupancy occurs in CARF-specialty beds and the additional beds will be allocated to the specialty services. AHCA determined that relatively few patients, an average daily census (ADC) of approximately 5 to 10 patients at the time of hearing, are brain and spinal cord injury patients. In fact, the experts agreed that fortunately, largely due to the use of seat belts, such injuries are declining. At most, approximately 4 percent of total Pinecrest patients have brain injuries and 8 to 10 percent have spinal cord injuries. The uncertainty in the interpretation of the rule arises because CARF accredits programs but does not designate beds. Pinecrest typically treats brain and spinal cord injury patients within its 30-bed medically complex patient unit. It is mathematically impossible to calculate an occupancy rate without a defined universe of brain and spinal cord beds. However, like CARF's accreditation of programs, Florida also issues CONS or licenses for general CMR beds and services but not for any CARF- accredited CMR subspecialties. Pinecrest's administrator was asked if he could designate certain beds for brain or spinal cord patients and conceded that he could. However, by doing so he could also manipulate the occupancy rate which would not assist in a rational application of the provision. Healthsouth's expert planner relied on the declining incidence of serious brain and spinal cord injuries, decreasing lengths of stay, and the proliferation of CMR and other categories of subacute beds in the District as evidence of the absence of need for Pinecrest's proposal. The trend towards a younger and younger population mix in Palm Beach County, although the number of people over 65 years old is growing, was also suggested as an indication of no need. Pinecrest's financial forecast also confirms an expected decline in ALOS from 14 to 15 days to 12 to 13 days in the second year of operating the additional CMR beds. The special circumstances rule does not require applicants to show need for the CARF sub-specialty services. Nothing in the rule establishes a means to determine the need for CARF program beds. Similarly, Subsection (b) of the special circumstances provisions does not require disproportionate share hospitals to show need based solely on Medicaid and charity care. In addition, the CMR rule defines "specialty bed" as "a category of hospital inpatient beds for which the agency has promulgated a separate rule specifying need determination criteria, including . . . comprehensive medical rehabilitation inpatient beds regulated under the rule." The special circumstances rule, by title and content, applies to the demand for additional beds in both general and CMR hospitals. One reasonable, although redundant interpretation is that the bed occupancy provision applies to general acute care hospitals. That is, general acute care hospitals must show a high occupancy in CMR beds in order to demonstrate a demand for additional CMR beds. Alternatively, as suggested by the expert for Pinecrest the requirement is satisfied by the uniformly high utilization of the facility as a whole, including the unit in which the subspecialty services are provided. Brain and spinal cord injury patients are contributing to the high occupancy in the medically complex unit to the potential detriment of other patients of the same type who seek admission to Pinecrest. Pinecrest meets the requirements of the special circumstances rule because of its occupancy rate in excess of 90 percent and its CARF-accredited specialty services which are not otherwise available in the district. The fact that Pinecrest is full is, in and of itself, a limitation on its ability to provide additional brain and spinal cord rehabilitation services. Pinecrest also showed a maldistribution of CMR beds in District 9. For example, Palm Beach County, with approximately 1 million people has 143 of the total, while the four northern counties, with approximately 400,000 people have 116 CMR beds. Constraints on available capacity are reflected by the fact that the lowest use rates in the District are in Palm Beach County. Number of Additional Beds The past increases in District 9 use rates whenever CMR beds are added to the District 9 inventory is further evidence of unmet demand due to capacity constraints. In adjacent District 10 for Broward County, the bed-to-population ratio is 102 as compared to 73.5 in District 9, and 74.5 state-wide. The population 65 and over has a use rate which is approximately 33 percent higher in District 10 than in District 9, and 50 percent higher than state-wide. The population of District 9 is approximately 1.45 million as compared that of District 10 which is approximately 1.42 million. In 1997, the 65 and over population of District 9 was 348,122, and 269,331 in District 10. Once the special circumstances threshold is met, the maximum number of additional beds is determined by a formula in the CMR rule. The formula calculates the facility's historical percentage of the total district CMR patient days applied to the total projected future CMR patient days. Since Pinecrest provided approximately 40 percent of total District 9 CMR patient days in 1995 to 1996 (for the time periods specified in the rule), the rule assumes that it will also do approximately the same proportion of the projected 72,600 CMR days in the planning horizon year of 2002. The result is a need for an additional 25 beds at Pinecrest. The approach used in the formula is also consistent with the use of total CMR bed occupancy rather than CARF- specialty program occupancy to determine special circumstances. Adverse Impact District 9 CMR providers have the following primary service areas (from North to South) as determined by the origin of 85 percent of their patients: Healthsouth - southern Brevard, Indian River, Okeechobee, St. Lucie, and Martin Counties; Lawnwood (using the acute care service area to estimate the CMR service area) - St. Lucie and Okeechobee Counties; St. Mary's - northern Palm Beach County; and Pinecrest - southern Palm Beach County The service area overlap between St. Mary's and Pinecrest is attributable to fewer than 10 percent of total patients. Pinecrest averages an admission of one patient a month from the trauma center at St. Mary's. Over 60 percent of the referrals to Pinecrest originate at Delray and Boca Raton Community Hospital (BRCH), which is approximately five to eight miles from the Delray campus. BRCH has 394 licensed beds, with approximately 70 percent of its patients age 65 and over. For patients referred for rehabilitation, stays at BRCH are lengthened as a result of beds being unavailable at Pinecrest. The BRCH Director of Social Services concludes that, despite an approved CON to add 10 skilled nursing beds at BRCH, a need exists to treat patients requiring more intense therapy at Pinecrest. An annualized number of approximately 4 to 5 Palm Beach County residents are treated at Healthsouth. The primary service area for Pinecrest is southern Palm Beach County, an area generally bound on the north by Okeechobee Boulevard and on the south by the Palm Beach/Broward County line. No overlap exists between service areas of Pinecrest and Lawnwood or Healthsouth. Pinecrest does not have any residents of either Indian River or St. Lucie Counties on staff and does not specifically recruit in those Counties. Although conceding that it does not currently have an overlapping service area with Pinecrest, Healthsouth assumes that Pinecrest will expand into its service area, particularly into Martin County, in order to fill new beds. Healthsouth projected a loss of 64 to 136 patients per year due to the addition of 25 beds at Pinecrest. The volume loss is equivalent, according to Healthsouth's expert, to approximately $285,000, or the loss of a contribution margin of $163.00 per patient day in the second year of operation. The impact analysis is based on the assumption that Pinecrest can achieve a major expansion in service area crossing northern Palm Beach County and reaching into Martin or St. Lucie Counties. It is not reasonable to expect Pinecrest to achieve such expansion into Martin County with St. Mary's and Lawnwood having geographically intervening service areas. Healthsouth also raises questions whether the demand for new beds exists in Pinecrest services area and whether the pool of CMR patients will stay constant or decline. The demand in the Pinecrest service area is established based on its referrals from Delray and BRCH, the suppressed demand due to capacity constraints, and the maldistribution of beds in the District. Based on projected growth in the population 65 and over, it is reasonable to conclude that the demand for CMR services will also increase over time. In March 1997, Indian River Memorial opened a 20-bed skilled nursing unit within a city block of Healthsouth. At the same time, Healthsouth maintained an ADC of 69.81 patients in 70 beds. In September 1997, Healthsouth increased from 70 to 90 beds and projected 93.2 percent overall occupancy for 1997. The ADC at Healthsouth for November 1997 was over 75 patients. At the time of the final hearing, Healthsouth had a census of 84 patients in the 90 beds. A total of 256 CMR beds were licensed and operational, at the time of the hearing, with no effect on the occupancy at Pinecrest. Based on the historical experience with the addition of new skilled nursing units and CMR beds in District 9 and the demand for services at Pinecrest, the projections of any adverse impact on Healthsouth are rejected as remote and highly speculative. Local and State Health Plans The local health plan factors favor applicants with support from other health care providers and who show a commitment to Medicaid/Indigent and handicapped population groups. Pinecrest's proposal has the support of unrelated and potentially competitive providers as well as the large network of other Tenet subsidiaries. Pinecrest's existing Medicaid and charity commitment of 2.67 percent has been met and is proposed to be extended to the additional 25 beds if CON 8770 is approved. Approximately 75 percent of Pinecrest's patients are participants in the Medicare program, but Pinecrest also treats patients funded by the health care district and the county division of vocational rehabilitation. The state health plan preference for the conversion of excess acute care beds and for disproportionate share hospitals are inapplicable. Pinecrest does not meet the preference for teaching hospitals, although it has numerous teaching affiliations, or for proposing to offer services not currently offered in the District, although it is the only CARF-accredited provider. Pinecrest meets the preference for operating existing outpatient facilities. Other Statutory Criteria Judging by the demand as demonstrated by the suppressed use rate and the historical failure of SNU's to affect the demand for CMR beds in the district, Pinecrest's proposal will increase the availability and accessibility to CMR services in the district. Additional beds at Pinecrest will increase its efficiency and utilization. ACHA and Healthsouth argue that since CMR is a tertiary service with a two-hour travel standard, which is met in District 9, existing CMR programs are accessible. In fact, they are not accessible because of high utilization and distinct medical services area patterns in the district. Healthsouth maintains that additional CMR beds and hospital-based SNUs offer alternatives to the Pinecrest proposal. The separate and distinct service areas of the existing CMR providers and their occupancy rates demonstrate that they are not viable alternatives. For example, discharge planners at Tenet- owned Palm Beach Gardens, an acute care hospital in northern Palm Beach County, typically refer rehabilitation patients to St. Mary's, not to Pinecrest despite common ownership. Pinecrest also presented evidence of the differing intensities of therapies provided at Pinecrest and at Tenet-owned Largo Vista, a 120-bed skilled nursing facility on the Delray campus. Pinecrest admits approximately half of the 4,000 patients referred to it each year. The parties stipulated that Pinecrest satisfies the criteria related to quality of care. As one indication of the quality of its programs, Pinecrest discharges 92 percent of its patients to their homes while nationwide 70 percent of rehabilitation patients are discharged home. Considering its position as a referral hospital in the Tenet organization and its location on a medical campus, Pinecrest plays a central role in offering a continuum of care within the multilevel system. That position will be enhanced by the addition of beds to assure its continued availability and the efficiency of its operation. The services proposed by Pinecrest are needed in Palm Beach County and are not intended to serve residents of adjoining areas or outside the district. The expected cost of the Pinecrest addition, a third floor to its existing two-story building, is $3,253,710. Pinecrest will add more private rooms to accommodate more medically complex patients and the equipment needed in their care and treatment. The parties stipulated that Pinecrest has the funds necessary to accomplish the project and that the project will be financially feasible. Although Pinecrest included in its application a substantial list of affiliations with health maintenance organizations ("HMOs"), Pinecrest is not itself a HMO. The parties stipulated that the construction plans and costs for CON Number 8770 are reasonable. No less costly or more appropriate alternative to the expansion of Pinecrest is available. Without the expansion of Pinecrest, problems in the availability of CMR services for all types of patients treated at Pinecrest, including those with brain or spinal cord injuries, are reasonably anticipated due to high rates of utilization. Other Rule Criteria Requirements in the rules related to quality of care, including organization, staffing, and services are met based on the stipulation that Pinecrest meets the statutory quality of care criterion. In addition, with the correction of transposed staffing numbers in the application, proposed staffing is reasonable. Pinecrest also included in its application the data required by rule and necessary for the agency to determine its compliance with existing agency rules. The rule giving a preference for a trauma center is not met by Pinecrest, although adjacent Delray is a trauma center. Factual Conclusion Pinecrest has demonstrated that 25 additional CMR beds are needed at Pinecrest to serve District residents, that its proposal complies with most of the applicable review criteria, and that no adverse effects will result from the approval of CON 8770.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the issuance of Certificate of Need Number 8770 for the addition of 25 comprehensive medical rehabilitation beds at Pinecrest Rehabilitation Hospital, and dismissing Healthsouth of Treasure Coast, Inc.'s Petition for Formal Administrative Hearing for failure to establish its standing in this proceeding. DONE AND ENTERED this 22nd day of April, 1998, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1998. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Mark Thomas, Esquire Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Jennifer Kujawa Graner, Esquire Thomas Panza, Esquire Panza, Maurer, Maynard & Neel NationsBank Building, 3rd Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308 Michael J. Glazer, Esquire C. Gary Williams, Esquire Ausley & McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32302
