Findings Of Fact THE APPLICANT Petitioners Osteophathic Medical Hospitals, Inc. (OMHI), proposes to build a 120-bed acute care osteopathic teaching hospital in the Hobe Sound area of Martin County. Hobe Sound is located in the south-central portion of the county, along the eastern seaboard. The hospital is intended to serve the needs of both osteopathic and allopathic physicians and their patients but will be openly identified and administered as an osteopathic institution. Osteopathic physicians, under the guidance of the current principals of OMHI, will be responsible for recruitment and organization of the professional staff, along with the development and administration of an osteopathic intern and residency training program. OMHI's application was filed on August 15, 1983, and was deemed complete by Respondent, Department of Health and Rehabilitative Services (DHRS), on October 15, 1983. DHRS reviewed the application and, in January 1984, denied the application. This administrative proceeding followed. OMHI revised its application twice during the pendency of these administrative proceedings, the most recent revision occurring on October 18, 1985. The most outstanding revision is the involvement of Hospital Corporation of America (HCA) in the proposed hospital and HCA's backing and eventual takeover of the project. The revision also based the need for the project on need projected for January 1, 1991. OMHI is a Florida corporation, the shareholders of which are three osteopathic physicians practicing in District IX: Dr. Harold Kirsh, Dr. Michael Longo, and Dr. Albert LaTorra. 0MHI is party to a binding contract with Hospital Corporation of America (HCA), under which HCA has agreed that, if the certificate of need is granted, HCA shall acquire the stock of OMHI and, thereafter, shall construct the proposed hospital and operate it as an osteopathic institution, consistent with the representations included in the CON application. HCA had no such interest in this project when the original CON application was filed in August 1983. OMHI had not intended to involve HCA in this project and, indeed, would have preferred to have proceeded autonomously with development of the hospital. At the time the original application was denied, OMHI had entered into an agreement with a large commercial developer whereby the latter had agreed to finance and construct the hospital if the application were granted. OMHI's original intention was then to employ a professional management company to operate the hospital. When the application was denied, it became necessary to seek another joint venturer to underwrite the anticipated financial burden of the administrative hearing. OMHI representatives contacted various proprietary health care chains to ascertain whether any would agree to underwrite the cost of an administrative proceeding in return for the opportunity to own and operate the new osteopathic facility. OMHI had such discussions with Universal Health Services, Inc. and American Medical International, Inc., in addition to Hospital Corporation of America. Further, Dr. Kirsh inquired whether Martin Memorial would be interested in a joint venture in connection with Martin Memorial's then pending application to construct a satellite hospital in central Martin County on the condition that this latter proposed facility be open to all licensed osteopathic physicians. Ultimately, OMHI elected to enter into the relationship with Hospital Corporation of America. In addition to acquiring the stock of OMHI should this application be granted, HCA has agreed to operate the facility as an osteopathic institution, to insure that the professional staff by-laws comport with the requirements of the American Osteopathic Association, to seek accreditation by the AOA, and to implement an osteopathic intern and residency program. For their part, the principals of OMHI agree to assume responsibility for recruitment and staff of the new facility and for supervision and administration of the proposed osteopathic intern and residency programs. The principals of OMHI already have had such experience in connection with their role in the development of the new osteopathic hospital in Wellington, as well as the development of Community (now Humana) Hospital of the Palm Beaches when it was an osteopathic facility. The principals of OMHI also are parties to the contract and would have a continuing right of enforcement. OSTEOPATHIC MEDICINE AND OSTEOPATHIC TRAINING. The osteopathic profession emphasizes the delivery of primary care. Approximately 80 percent of practicing osteopathic physicians today are engaged in general/family practice. Although there may be increasing numbers of osteopathic students who seek specialty training, more than 70 percent of the osteopathic students graduating today still go into family practice. Because of the profession's commitment to the emphasis upon primary care, the curriculum at osteopathic colleges varies significantly from the course of study at allopathic medical schools. Osteopathic schools require all students to take a broad range of clinical and didactic courses, so that the student is exposed to all medical subject matter. Further, during upper class years, each student is required to take rotating "externships" during which he or she concentrates, for months at a time, on different medical specialities at various osteopathic hospitals. By contrast, the allopathic student typically elects his or her specialty during the medical school years and begins to concentrate on a narrower range of medical subject matter during that time. Upon graduation, the allopathic student continues this specialty training with two or more years of postgraduate training in that particular area. As a result, many allopathic students may complete their entire education without exposure to the broader medical subject matter with which every family physician must have a working familiarity. Osteopathic postgraduate education is also quite different from the allopathic model. Unlike the allopathic student, who continues his specialty training during his postgraduate years, the osteopathic graduate is required to take a one year "rotating internship" at an osteopathic hospital. Again, the emphasis and point of this internship is to prepare the student for family practice because that preparation is the profession's mission. During the internship, the student is required to serve in all of the major hospital departments, including surgery, internal medicine, OB/GYN, family practice and the ancillary departments. Allopathic training and postgraduate programs are accredited by the AMA through the Liaison Committee on Graduate Medical Education. The Liaison Committee has no connection with osteopathic postgraduate programs, which are accredited by the AOA. As a result of this training in general medicine, the osteopathic physician is fully qualified to enter family practice following his or her one- year rotating internship. Florida grants licensure to osteopathic students at that time. In essence, the profession's emphasis on general practice during the student's early medical school years commences his or her "specialty" training in family practice well before graduation and the postgraduate internship. Osteopathic medicine differs from the allopathic school not only in philosophy, but also in the clinical approach to the musculoskeletal system. Osteopathic physicians are trained not only to treat the symptoms of disease through drug therapy but to view disease as dysfunction in a patient's system as a whole. Thus, osteopathic physicians stress a "holistic" approach to the healing arts with emphasis on nutrition and preventive medicine. The distinctiveness of osteopathic medicine arises from its emphasis upon osteopathic manipulative therapy. Manipulative therapy is taught in osteopathic medical schools and is practiced clinically at osteopathic hospitals as an element of the osteopathic focus on preventive medicine and on treating the body's symptoms as an integrated whole. HISTORY OF OSTEOPATHIC DISCRIMINATION. Martin Memorial Hospital is a 336 bed allopathic acute care hospital located in Stuart, Florida. Martin Memorial is located in the northeast section of Martin County and is within the proposed service area of OMHI's planned hospital. Jupiter Hospital is an allopathic acute care hospital located in northern Palm Beach County, just south of the Martin County line. Jupiter Hospital is located approximately 8 to 10 miles from the proposed site of OMHI's planned hospital. Growth of the osteopathic profession in Martin County has been impeded by the policies of Intervenors, Martin Memorial Hospital, Inc. (Martin Memorial), and Jupiter Hospital, Inc. (Jupiter Hospital). To some extent, Martin Memorial and Jupiter Hospital are responsible for the shortage of D.O.S (osteopaths) in Martin County and, if OMHI's facility were opened, more osteopathic physicians soon would move to the area. Both Martin Memorial and Jupiter Hospital had adopted medical staff policies and by-laws intended to preclude osteopathic physicians from qualifying for staff privileges. As Florida law has changed to prohibit this direct discrimination, both adopted new policies which comply with the law but have had the continuing effect of excluding the majority of osteopathic physicians from their respective medical staffs. Martin Memorial. In the early 1970's, the Martin Memorial by-laws seemed to permit privileges for osteopathic physicians by allowing an applicant to offer "equivalent training" as a means of satisfying the educational criteria. Nevertheless, when a fully credentialed osteopathic physician applied for privileges in 1973 that application was denied despite the fact that the applicant presented three letters from allopathic physicians offering "unhesitating" recommendations and documenting his professional skills. In response to that application, the Martin Memorial by-laws were amended to require specifically that an applicant have training approved by the American Medical Association and the Association of American Medical Colleges. Because osteopathic physicians are trained in schools approved by the American Osteopathic Association, all osteopathic graduates were precluded from staff membership by this provision. Martin Memorial similarly relied upon its by-law provisions to deny the applications of Drs. Equi and Shefter, two osteopathic physicians who applied for staff privileges in 1976. In October 1976, Dr. Equi notified Martin Memorial that he had obtained legal counsel and served notice that he intended to challenge the hospital's blanket prohibition of staff privileges for graduates of AOA-approved medical schools. In reaction, the medical staff several months later (January 1977) voted to amend the staff by-laws to permit applications from osteopathic physicians. As with the previous by-laws, however, the new provision had the effect of excluding most osteopathic physicians from the medical staff, since it additionally required all applicants to have two years of postgraduate training recognized by the American Medical Association. As stated above, osteopathic physicians take their postgraduate training at AOA- approved medical schools and hospitals. Although an osteopathic physician may qualify to attend AMA postgraduate programs, in fact few D.O.s choose to do so for example, approximately one percent of the graduating class of SECOM, the Southeastern College of Osteopathic Medicine. In 1979 a new Florida law was enacted, effective January 1, 1980, requiring all hospitals to accord equal treatment to osteopathic and allopathic applicants for staff privileges. Section 395.0653, Florida Statutes (1979). Accordingly, in February 1980, Martin Memorial amended its by-laws to permit training accredited by the American Osteopathic Association as an acceptable credential for privileges at the hospital. Nevertheless, the hospital retained its prior requirement that all applicants have two years of postgraduate education in order to qualify for privileges. The practical effect of the two-year postgraduate education requirement was to exclude the majority of osteopathic physicians from staff positions at Martin Memorial. As stated above, approximately 70 percent to 80 percent of all osteopathic physicians enter general practice, and the AOA requires only a one-year postgraduate internship for licensure because of the concentration on general practice during medical school. The exclusionary effect of the two year postgraduate education requirement is reflected in the experience of Martin Memorial itself. Since the by-law provisions seemingly were amended to permit equal treatment in February 1980, only three osteopathic physicians have obtained admitting privileges, and one of those (Dr. Equi) obtained privileges only as a result of litigation. By contrast, there are approximately 170 allopathic physicians on the Martin Memorial staff, of whom 140 are active and associate members. The earlier discrimination against osteopathic physicians practiced by Martin Memorial, together with the effective exclusion of most osteopathic physicians from the hospital staff today, has caused an undersupply of osteopathic physicians in the Martin County area. Hospital privileges are essential to the establishment of a medical practice in a community today. Privileges are important not only to provide access to hospital facilities, but also to convey to the public that the physician is "good enough to be on a hospital staff." Jupiter Hospital. The first set of medical staff by-laws adopted by Jupiter Hospital in 1979 prohibited osteopathic physicians from staff membership by requiring graduation from a school approved by the AMA's Liaison Committee on Graduate Medical Education and by requiring similar postgraduate training, Like Martin Memorial, Jupiter Hospital agreed to amend its by-laws to permit hospital privileges for D.O.s only when required to do so by changes in Florida law. Nevertheless, when Jupiter Hospital amended those by-laws in 1980, the new provisions relating to osteopathic applications retained the requirement that D.O. applicants have postgraduate training approved by the Liaison Committee on Graduate Medical Education, and those provisions continue to exist today. (Although HCA provides financial management services at Jupiter Hospital, that corporation has no involvement with the hospital's staff by-laws or the granting and denial of staff privileges.) Dr. Harold Kirsh, who lives in the northern Palm Beach County area, has encountered difficulty because he is unable to obtain staff privileges at Jupiter Hospital. Although Dr. Kirsh received two years of postgraduate training in his specialty, he was denied privileges at Jupiter because that training was approved by the American Osteopathic Association rather than the allopathic Liaison Committee on Graduate Medical Education. As a result, Dr. Kirsh has been unable to treat friends, neighbors, and patients in the northern Palm Beach County area who prefer to seek treatment at a hospital near their homes. Proximity to a hospital is a critical factor in a patient's selection of a physician. Osteopathic specialists, although they receive more than one year of postgraduate training, similarly are discouraged from applying for allopathic hospital staff privileges by the two year postgraduate requirement. Because osteopathic specialists rely upon osteopathic general practitioners for referrals, osteopathic specialists are not likely to locate in areas in which the existing hospitals limit access by osteopathic general practitioners. The effect of Jupiter Hospital's past discrimination against osteopathic applicants, and current by-laws indicating that osteopathic physicians who do not have two years of postgraduate training approved by the Liaison Committee on Graduate Medical Education will not be admitted to the staff, is reflected in the fact that only four or five osteopathic physicians have privileges at Jupiter on a medical staff of approximately 140 allopathic physicians (including at least one Bonnie Hubicz, D.O. whose post-graduate training was not approved by the Liaison Committee despite provisions in the By- Laws requiring Liaison Committee approval.) Even if the many osteopathic general practitioner graduates in Florida today desired to obtain more than one year of postgraduate training in family practice, only three or four residency slots offering two years of such postgraduate family practice training are available in the entire state. DHRS. OMHI did not prove that DHRS discriminates against osteopaths or has been purposefully obstructionist in the face of applications for certificates of need for osteopathic facilities. The evidence only proves: (1) that, from its enactment in 1972 as Chapter 72-391, Laws of Florida (1972), DHRS interpreted Section 381.494(2), Florida Statutes, contrary to the interpretation ultimately given by the District Court of Appeal, First District, by its decision in the Gulf Coast case on December 16, 1982; (2) that DHRS has not yet promulgated a rule methodology for determining osteopathic bed need; and (3) that, on a case- by-case basis, DHRS recently has changed the utilization assumptions it has used in determining osteopathic bed need in the face of declining average length of stay and occupancy rates for osteopathic (as well as allopathic) hospitals. No discriminatory intent or effect is inferred from these facts. NEED FOR FACILITY. State Health Plan and District Health Plan. The 1985 Florida State Health Plan provides little guidance with regard to an osteopathic hospital, whether or not a teaching hospital. Page 22 of the Plan establishes the policy guide that "a holistic concept of health is espoused which views man's well-being as a function of the complementary interaction of mind, body, and environment. The holistic concept of health places emphasis on promotion of well-being and prevention of illness." As was previously discussed, osteopathic medicine is founded on the holistic concept of medicine. The development of additional osteopathic facilities and training for osteopathic physicians advances this policy guide of the 1985-87 State Health Plan. Additionally, the State Health Plan notes the applicability of Section 381.494(2), Florida Statutes (1979), and its distinction between allopathic and osteopathic medical practices. Neither the State nor the District IX Health Plan specifically address numerical need for osteopathic hospitals and services. But both address the problem of acute care overbedding and optimal occupancy rates for such facilities. Those portions of the Plans apply equally to osteopathic and allopathic hospitals. The acute care section of Volume II of the 1985-87 State Health Plan emphasizes the ever growing problem and societal expense caused by excess acute care beds in the State. It states that "the combined effect of ambulatory surgery, HMOs, DRGs, and other innovations could reduce acute care bed need for (1989) by 15 percent or more," with the result being fewer acute care beds needed statewide than existed in 1984. The State Health Plan also contains the goal that all acute care hospitals in each district of the state attain an average annual occupancy rate of 80 percent by 1989. The Acute Care Section of the 1985 District IX Health Plan states that the overall annual licensed bed occupancy rate for acute care general hospitals in District IX should equal 80 percent. The local health plan also states that before needed new beds may be approved, the average annual occupancy rate of the applying facility for the most recent calendar year, and the corresponding subdistrict average, should equal or exceed 80 percent. Although this section of the local health plan only addresses "needed beds," as determined by Rule 10- 5.11(23), Florida Administrative Code, its minimum required average occupancy should apply equally before any new acute care beds, including new osteopathic beds, are approved. In 1985, The District IX Local Health Council raised its recommended occupancy levels for medical surgical beds (and its required minimum occupancy before "needed" new beds may be approved) from 75 percent to 80 percent. Citing the Florida Hospital Bed Utilization and Distribution Study, the 1985-87 State Health Plan notes that the concentration of surplus beds occurs primarily in four geographical areas: District IV (Jacksonville), District VI (Tampa), District x (Ft. Lauderdale), and District XI (Miami). The study notes that Districts VI and XI alone accounted for 57.1 percent of the total projected surplus in the state in 1983. The four districts cited accounted for 87.9 percent of the state's bed surplus. The Existing Osteopathic Facilities and Services. Wellington Medical Center is an approved, 120 bed osteopathic hospital in Palm Beach County. Humana Hospital Palm Beaches is listed as an osteopathic hospital in the 1985-86 Yearbook and Directory of the Florida Osteopathic Medical Association. Humana Hospital Palm Beaches is listed as an accredited osteopathic hospital in the American Osteopathic Association's 1984-85 Yearbook of Osteopathic Physicians. The American Osteopathic Association, Division of Accreditation, on October 15, 1985, directed a letter to Jennings, Ryan, Federa & Co. which stated: The institution Humana Hospital Palm Beaches 3 was surveyed and examined by a survey team earlier this year. The Committee on Hospital Accreditation examined the survey report and made a recommendation for continuing approval of the institute that was acted upon by our Board of Trustees at its July, 1985 meeting. The Humana Hospital Palm Beaches is accredited by the American Osteopathic Association and has an internship program that is also accredited by that organization. Approximately 22 percent of the admitting medical staff at Humana Hospital Palm Beaches is composed of osteopaths. Of 150 total on the staff in 1983, 50 were osteopaths. Now 50 of approximately 200 on the staff are osteopaths. Humana Hospital Palm Beaches' governing board has one D.O. member and one M.D. member. Approximately 44 percent of Humana Hospital Palm Beaches' patient admissions in February 1985 were by D.O.s. The hospital's D.O. admissions are "approximately 50/50." The medical staff by-laws of Humana Hospital Palm Beaches provide that the position of chairman of each department be held by an osteopath every other year. The chairman and vice- chairman, one of whom is an allopath and one of whom is an osteopath, rotate positions annually. Similarly, the office of chief of staff is alternated between an allopathic and an osteopathic physician. Humana Hospital Palm Beaches has an Osteopathic Methods and Concepts Committee which meets regularly. It has an organized Department of Osteopathic and Family Medicine. There is also an Accreditation Committee whose duties include assuring "that the hospital is presently, and in the future, in compliance with the accreditation standards of the American Osteopathic Association." Humana Hospital Palm Beaches (Humana) has numerous attributes of an osteopathic hospital. Based on the testimony and record of this proceeding, there is little difference between the osteopathic attributes of Humana Hospital Palm Beaches and the osteopathic attributes proposed for OMHI's proposed hospital. From a health planning standpoint, osteopathic services rendered at Humana Hospital Palm Beaches should be counted among the available osteopathic services in District IX. Humana has always had osteopathic manipulation tables. The hospital's osteopathic internship program is currently training eleven interns. The reason Humana responded to OMHI's interrogatories stating that it is not an osteopathic facility was its administrator's understanding that "osteopathic hospital" meant totally osteopathic with no allopathic participation. Although the Humana Hospital's obligations to maintain AOA accreditation and to operate an intern program for osteopathic physicians are the result of a law suit settlement Humana has no plans to discontinue the AOA accreditation or the intern training program. There is no basis to assume that Humana will discontinue the osteopathic services now offered. Under the terms of that settlement agreement, Humana's compulsion to operate an intern program lapses this year. Similarly, Humana's obligation to refrain from any effort to amend the medical staff by-laws, which provide for the rotation of department chairmanships between M.D.'s and D.O.'s, terminates five years after the settlement date (1987). In addition to the Humana and Wellington facilities, osteopathic services are offered at other area acute care hospital that have osteopaths on their staffs, including Martin Memorial and Jupiter. Bed Need. In part, OMHI proposes two supply-based methods for use in projecting the number of osteopathic beds needed in District IX. A supply-based method attempts to project bed need by multiplying a physician use rate by the number of physicians projected to be practicing in an area in the future. For several reasons, the statewide supply-based methods OMHI proposes are unreliable. First, in general it is more appropriate to base need projections on population use rates and projected population. It is the sick portion of the population represented by the population use rates and population that generates bed need, not the supply of physicians (whether allopathic or osteopathic.) Generally, it should be assumed that physicians follow the sick population, not vice versa. Second, it is more accurate to project population than it is to project the number of physicians expected to be practicing in an area. Being a much smaller group than the population as a whole, projections of the number of osteopaths expected to be practicing in an area in the future are more affected by variables other than passing of time than are population projections. In addition, because the current number of osteopaths in District IX is significantly influenced by the variables of past allopathic hospital staff privilege policies, as discussed above, it is even more difficult to project the number of osteopaths expected to be practicing in District IX in the future. Adding to this inherent unreliability, OMHI's expert witness may not have plotted the data points correctly in performing his regression analysis, a significant error when one has only ten data points with which to work. Third, a statewide supply-based method must assume that the percentage of physicians who do not actively practice in the area in question is the same as the percentage of physicians who do not practice in the area used to obtain the physician use rates. For example, as of November 1985, there were approximately 121 osteopaths in Districts IX, but only 88 were practicing. The use rate used by OMHI in its statewide supply-based method is a use rate for osteopathic hospitals throughout Florida. There was no evidence that the same percentage of active osteopaths in District IX, i.e., approximately 73 percent, obtains statewide. Fourth, the osteopath use rate incorporated in OMHI's statewide supply-based method includes both osteopath and allopath admissions at osteopathic hospitals throughout the state. The method must therefore assume that there is one osteopath admission at an allopathic hospital for each allopath admission included in the admission statistics of the osteopathic hospitals. There is no evidence supporting the validity of this assumption, but the assumption is reasonable given the limitations of the available data. OMHI also, in part, proposes a type of supply-based method for determining osteopathic bed need referred to as the "Wellington rate." The "Wellington rate," so called because it was used by OMHI to support its application to construct the Wellington osteopathic hospital in Palm Beach County, actually uses the statistics generated at Humana Hospital Palm Beaches. The Wellington rate isolates osteopath admissions at the Humana Hospital and applies the resulting use rate to the projected number of osteopaths expected to be in District IX in the future. It therefore does not suffer from the weakness noted in paragraph 53(d.) above. But it does share the other weaknesses of a supply-based method set-out in paragraph 53., plus one. The problem referred to in paragraph 53.(c) above is exacerbated in OMHI's "Wellington rate method" because it uses only 33 heavy admitting osteopaths to generate its osteopath use rate but multiplies the resulting use rate by all osteopaths expected to be in District IX in the future, whether admitting, active or inactive. OMHI'S Wellington rate method therefore assumes that all the osteopaths expected to be in District IX in the future will be active and just as heavy admitters as the 33 heavily admitting osteopaths now on the staff of the Humana Hospital, the only osteopathic hospital in District IX at this time. Such an assumption is unreasonable. It is more reasonable to assume that, if the Wellington rate is used, future osteopathic bed need will be the product of the Wellington rate and the number of admitting osteopaths projected to be actively practicing in District IX on the relevant planning horizon. As alluded to earlier, a population-based method for determining bed need generally is preferable to a supply- based method. But because of the limitations of available data, the population-based method used in part by OMHI to project osteopathic bed need has weaknesses, too. Because there is only one hospital in District IX that has a substantial number of osteopath admissions, the choice of population-based use rates is between a "Wellington" population-based rate and a statewide osteopath admission rate. If the statewide rate is used, it assumes that the statewide use rate "fits" District IX. There was no evidence supporting this assumption. To the contrary, the evidence was, e.g., that use rates in 1984 at osteopathic hospitals in the state (excluding irrelevant obstetrical and psychiatric admissions where possible) varied from a low of approximately 12.5 patient days per 1,000 population in District VI to a high of 113 in District V, with an average of approximately 45. Because the statewide osteopathic use rate is obtained from the use rates at osteopathic hospitals, as is the rate for the statewide supply-based method, it shares with that supply-based method the weakness of requiring an assumption that there is one osteopath admission at an allopathic hospital for each allopath admission counted among the admissions at the osteopath hospital. Finally, population-based methods share with supply-based methods the difficulty of trending declining use rates forward to the relevant planning horizon. Each of three methods statewide supply-based, the Wellington rate, and statewide population-based have weaknesses which make it unwise to determine osteopathic bed need exclusively-on any one of them. The most rational approach is to average the three in the hopes of obtaining the best projection. There was insufficient evidence on which to conclude that the average should be weighted in any way. The best population-based approach available from the evidence in the record would use a statewide use rate of 42.39 patient days per 1,000 population. This use rate is derived by taking twice the total patient days at all AOA accredited hospitals in Florida, excluding irrelevant obstetrical and psychiatric admissions to the extent possible, for the first half of 1985 and dividing the total by the total population of the districts in which those hospitals are located. Using Tampa Bay Community Hospital, not AOA accredited, as part of the data base to generate the use rate is specifically rejected as unreasonable; likewise, not using Humana Hospital Palm Beaches, under the facts of this case, is specifically rejected as unreasonable. In addition, it is not reasonable to include irrelevant obstetrical and psychiatric admissions in the numbers generating the use rate. On these points, the testimony of Martin Memorial's expert, Judy Horowitz, is accepted, and the contrary testimony of OMHI's expert, Phillip Taylor, and HRS' expert, Elizabeth Dudek, is rejected. The formula for using the statewide population-based use rate of 42.39 to projection bed need is: Bed Need = 42.39 patient days x Population divided by 1, 000 365 days/yr divided by 80 percent occupancy standard Population for District IX is projected to be: 1,145,423 on July 1, 1988 1,218,311 on July 1, 1990 1,235,361 on January 1, 1991 Using the formula, osteopathic bed need under the statewide population-based method would be: 166 on July 1, 1988 177 on July 1, 1990 179 on January 1, 1991 For comparison purposes, if the use rate were obtained by dividing the total patient days by the population only of the counties, instead of districts, in which the hospitals are located, the bed need would be: 233 on July 1, 1988 248 on July 1, 1990 251 on January 1, 1991 The "old" Wellington rate first suggested by OMHI for use in projecting osteopathic bed need is obsolete and should not be considered. The "new" and more appropriate Wellington rate is 618 patient days per osteopath. But OMHI proposes to multiply that rate by the total of all osteopaths projected to be in District IX on the relevant planning horizon although the "new" Wellington rate is generated by dividing total osteopathic patient days at the Humana Hospital only by the admitting osteopaths. This methodology is rejected. It results in an unreasonably high bed need projection. Instead, the "new" Wellington rate should be multiplied only by the number of admitting osteopaths expected to be practicing in District XI on the relevant planning horizon. No party explicitly offered a method of projecting the number of admitting osteopaths expected to be practicing in District IX in the future. However, there was evidence that, of the 121 osteopaths registered by the Department of Professional Regulation as residing in District IX on November 1, 19B5, only 33 were the heavily admitting osteopaths whose admissions from January to June 1985 resulted in the "new" Wellington rate. Using Horowitz' linear regression analysis, which is specifically accepted as more reliable than Taylor's (since Taylor could not testify whether he plotted the ten data points correctly), the number of admitting osteopaths expected to be practicing in District IX in the future can be projected by the formula: Y 33 + 0.756 X where Y number of osteopaths And X number of months after January 1985 Using that formula: Y on July 1, 1988 33 + 0.756(42) 65 Y on July 1, 1990 33 + 0.756(66) 83 Y on January 1, 1991 33 + 0.756(72) 87 Multiplying the "new" Wellington rate of 618 by the number of admitting osteopaths expected to be practicing in District IX yields the following bed need projections: Bed Need 7/1/88 618 patient days x 65 D.O.s divided by D.O. 365 days/yr 80 percent occupancy standard = 138 Bed Need 7/1/90 618 patient days x 83 D.O.s divided by D.O. 365 days/yr 80 percent occupancy standard = 176 Bed Need 1/1/91 618 patient days x 87 D.O.s divided by D.O. 365 days/yr 80 percent occupancy standard = 184 Finally, there is evidence supporting a statewide supply-based method of projecting osteopathic bed need. The statewide use rate of 313.24 admissions per osteopath suggested by Horowitz is specifically accepted as more reasonable than the use rate of 369.2 suggested by Taylor and Dudek. See paragraphs 61 and 62 above. Since the statewide use rate is obtained by dividing total osteopathic admission by total osteopaths registered with the Department of Professional Regulation, it is appropriate to multiply the statewide use rate by the total number of osteopaths Horowitz' linear regression analysis projects will be in District IX on the relevant planning horizon. Again, Horowitz' linear regression analysis is preferred as more reliable than Taylor's. The statewide supply-based method described in paragraph 70 yields the following results: Bed Need 7/1/88 313.24 patient days x 141 D.O.s divided by D.O. 365 days/yr 80 percent occupancy standard = 151 Bed Need 7/1/90 313.24 patient days x 159 D.O.s divided by D.O. 365 days/yr 80 percent occupancy standard = 171 Bed Need 1/1/91 313.24 patient days x 164 D.O.s divided by D.O. 365 days/yr 80 percent occupancy standard = 176 The results of the three applicable osteopathic bed need methods population-based, statewide supply-based, and Wellington rate supply-based, as revised based on the evidence in this case can be summarized: Population- Statewide Supply- Revised Wellington Average Based Based Rate Supply-Based 7/1/88 166 151 138 152 7/1/90 177 171 176 175 1/1/91 179 176 184 180 Since there already are 120 approved osteopathic beds at Wellington and approximately 81 of the Humana Hospital's 162 beds are used to render osteopathic services, there is no raw bed need for OMHI's proposed 120-bed osteopathic hospital. Area hospitals have a high seasonality factor of approximately 122 percent of average. Occupancy in a hospital above 90 percent at any time created quite a few problems with regard to a patient's ability to receive inpatient care. Any time one deals with an occupancy rate above 90 percent, particularly when some rooms are semi-private, one must be concerned about the type of patients, infectious disease control, and other serious problems that can arise in terms of ability to admit a patient. But the peak season high utilization still does not justify the addition of 120 beds in District IX. It would be more accurate to subtract beds at an osteopathic facility filled by allopathic physicians from osteopathic bed inventory. But it is impossible to do this from the evidence in this case. The only osteopathic hospital in District IX (excluding Humana) is not yet operating. In addition, it would logically follow that a pro rated portion of all osteopathic admissions at all allopathic hospitals in District IX also would have to be added to the inventory, an impermissible result under the law. Consideration of the beds at the Humana Hospital serving osteopathic patients is based on the uniqueness of the Humana Hospital, as more fully described above. Health Planning Horizon. Because of the length of lead time necessary to plan new construction of a 120-bed hospital facility and to open the facility to the public, it is reasonable from a health planning viewpoint to determine whether a new hospital is needed based upon the need for the facility projected five years from the completion date of the application or, if there are formal administrative proceedings, five years from the final hearing in the administrative proceedings. DHRS has in the past followed a non-rule policy of projecting need for all acute care hospitals, allopathic and osteopathic, five years into the future from the completion date of the application or, if there are formal administrative proceedings, from the final hearing in the administrative proceeding. There was no evidence that DHRS has decided whether or how to re- formulate its policy in light of the recent decision in Gulf Court Nursing Center vs. Department of Health and Rehabilitative Services, 10 FLW 1983 (Fla. 1st DCA 1985), clarified on rehearing, 11 FLW 437 (February 14, 1986.) Other Need Considerations. Although the evidence was that only approximately 10 percent of the population as a whole prefers to use osteopathic physicians, the evidence demonstrates a shortage of osteopaths in Martin County. Past history of discrimination and current staff privilege policies at area hospitals have contributed to the shortage, as previously explained in more detail. Only three osteopaths are on Martin Memorial's staff of approximately 173 physicians, and Jupiter Hospitals's staff of approximately 145 physicians includes only 4 or 5 osteopaths. There are only two osteopaths in all of St. Lucie County. OMHI's proposed osteopathic hospital would attract osteopaths to the area and help alleviate the shortage. There also is a shortage of osteopathic internship and residency programs. Only eight of the fifteen osteopathic hospitals in Florida have internship programs. (In addition, the osteopathic Wellington hospital being built by OMHI will have an internship program with the Southeastern College of Osteopathic Medicine.) Those programs cannot accommodate Florida graduating osteopaths, much less the net influx of out-of-state graduates who desire to intern in Florida. Only three to four osteopathic hospitals in the country offer residency programs for osteopaths, one of which fortunately is located in Florida. OMHI's proposed teaching hospital with internship and residency programs might help meet the need for such programs. However, low and declining utilization at existing osteopathic facilities will adversely impact the viability of osteopathic intern programs already existing in Florida. A hospital with a low utilization rate would have difficulty supporting such a program. Stated conversely, a hospital with adequate utilization of 75 percent or more would have more opportunity to train students. Currently, only eight of the fifteen osteopathic hospitals in Florida are able to offer such programs. Given the decline in osteopathic utilization which will be discussed below, the approval of OMHI's proposed hospital could further decrease utilization at existing and approved osteopathic facilities and jeopardize the existing program at Humana and the proposed program at Wellington, as well as OMHI's own proposed program. OMHI did not prove that it has studied and found not practicable less costly and less efficient alternatives for meeting the need for osteopathic internship and residency programs in Florida. Those alternatives include the expansion or formation of internship and residency programs at the existing Florida osteopathic hospitals, especially the seven which have no such programs at this time. The other alternative would be for HCA to operate one or more of its existing allopathic hospitals in manner similar to the way in which Humana Hospital Palm Beaches is operated. If, for example, HCA's Port St. Lucie or Lawnwood Memorial Hospital, both in St. Lucie County, could be operated as Humana Hospital Palm Beaches is, HCA could help meet the need for osteopathic hospital beds and internship and residency programs in District IX in a less costly and more efficient manner. ACCESSIBILITY. The only substantial and persuasive evidence on accessibility to osteopathic services and hospitals was that most of Martin and all of St. Lucie and Indian River Counties would be more than a thirty minute drive from Humana Hospital Palm Beaches and the proposed Wellington Hospital. This would be more than 10 percent of the total population of District IX. However, OMHI did not prove that a thirty minute drive time is the appropriate standard for geographic accessibility to osteopathic services and hospitals. Nor did OMHI prove that such accessibility to 90 percent of the total population of the district is the appropriate standard in this case. Although DHRS has by rule made geographic accessibility within a 30 minute drive time in urban areas for 90 percent of a district's population the standard for all acute care hospitals under Rule 10-5.11(23)(i), Florida Administrative Code, those standards cannot logically be used to measure osteopathic accessibility since only approximately 10 percent of the population prefers to use osteopathic physicians. There was no competent proof what osteopathic geographic accessibility standard should be applied in this case. Nor was there proof that there are no osteopathic facilities or services in adjoining districts that are accessible to remote parts of District IX. Finally, there was no proof how accessible OMHI's proposed hospital would be to the most northern parts of District IX. Nor was there proof that the Rule 10-5.11(23)(I) standard for accessibility to acute care hospitals (either allopathic or osteopathic) is not satisfied in District IX. The evidence suggested that the standard is satisfied. OMHI estimates that 2.5 percent of its patients will be Medicaid patients. UTILIZATION. Utilization of acute care hospitals is declining. The reasons for the decline are the dramatic changes which the health care industry has undergone since 1983. The primary reason has been the shift in 1983 to the Medicare prospective payment system, otherwise known as DRGs. The DRG system changed Medicare reimbursement from cost base to a set reimbursement based on type of illness. The effect of this change has been primarily to sharply decrease the average length of stay of Medicare patients. Other causes of decline in utilization include an increased emphasis on utilization review and the use of outpatient services such as outpatient surgery and home health services. In many areas of the country, preferred provider organizations (PPO's) and health maintenance organizations (HMO's) also have impacted hospital occupancy rates significantly, lowering lengths of stay and admission rates. As specifically recognized by the State Health Plan, "the emergence of these alternative delivery systems ... have exacerbated declining occupancy rates." In District IX, average lengths of stay have declined in acute care hospitals as follows: 1983 6.9 First half of 1984 6.5 1984 6.2 First half of 1985 6.2 During the same time periods, occupancy rates in District IX acute care hospitals have declined as follows: 1983 73.7 First half of 1984 72.3 1984 65.8 First half of 1985 64.7 Statewide, average lengths of stay in osteopathic hospitals have declined as follows: 1983 7.9 First half of 1984 7.1 July 1, 1984 thru June 30, 1985 6.9 During the same time periods, occupancy rates at osteopathic hospitals throughout the state have declined as follows: 1983 50.4 1984 43.3 July 1, 1984 thru June 30,1985 39.9 Meanwhile, at Humana Hospital Palm Beaches, the only hospital in District IX with significant osteopathic admissions, average lengths of stay declined as follows: 1983 7.7 1984 6.8 First half of 1985 7.4 Occupancy rates at Humana Hospital Palm Beaches declined as follows: 1983 82.9 1984 76.9 First half of 1985 67.2 Generally, utilization of medical/surgical beds have declined faster than overall hospital bed utilization. For example, occupancy rates at Humana, Jupiter and Martin Memorial have declined as follows: 1983 1984 Semiannual 1984 1985 Semiannual Jupiter 71.4 67.8 58.2 59.9 Martin Memorial 74.8 71.2 66 68.3 Humana 82.7 85.8 76.9 66.9 The low average occupancy rates for District IX do not include over 700 beds in District IX which have been approved but have not yet been licensed (120 of which are at the Wellington facility). Underlying part of OMHI's need and utilization projections has been the contention that an osteopathic hospital will attract new osteopathic physicians to an area in sufficient numbers to adequately utilize a facility. However, the utilization evidence in this case does not support this "magnet effect". If this magnet effect were a valid principal upon which to base need or utilization projections, one would expect the existing osteopathic facilities in Florida to have attracted sufficient osteopaths to support reasonable utilization of those facilities. The fact of low and falling osteopathic utilization in Florida, rather than supporting such a contention, casts serious doubts on the ability of any osteopathic facility to achieve adequate utilization. It is probable that utilization will decline somewhat more before the decline bottoms out. It is highly unlikely that utilization will increase in the next five years. OMHI's ABILITY TO PROVIDE QUALITY CARE. OMHI and HCA possess the ability to provide quality care at the proposed acute care hospital. Several doctors of osteopathy have expressed an interest in practicing in the area if an osteopathic hospital is located there and others would be attracted. HCA owns approximately 35 hospitals in Florida. It owns or operates 420 hospitals throughout the world. It has assets of 4 billion dollars and has committed the approximately 23 million dollars that will be necessary to construct and begin operation of this facility. It has a one billion dollar line of credit as a part of its general debt capability. It can attract the manpower and other resources necessary to operate OMHI's proposed hospital. The principals of OMHI have the credentials and experience to recruit a qualified staff of osteopathic physicians. The staffing of the hospital would be accomplished in part by interns who will be a part of the hospital's teaching program. The American Osteopathic Association has no particular staffing requirements for osteopathic teaching facilities. Over the years, it is likely that students who receive internship, externship and residency training at OMHI's proposed hospital will remain in the vicinity. There is ample medical staff personnel available to support OMHI's proposed hospital. METHOD OF CONSTRUCTION. OMHI proved that the cost and methods of construction of the proposed hospital can be expected to be reasonably energy-and-cost-efficient. I. FINANCIAL FEASIBILITY. As previously mentioned, HCA has the financial ability to construct and begin operating OMHI's proposed hospital in the short term. However, OMHI did not prove the long-term financial feasibility of its proposed hospital. The evidence presented by OMHI's experts on the long- term financial feasibility of the proposed hospital were dependent upon the accuracy of the osteopathic bed need projections of Dr. Philip Taylor. As previously discussed, Dr. Taylor's need projections erroneously inflated the osteopathic bed need. For these and other reasons, the testimony of OMHI's financial experts was based upon erroneous assumptions and did not prove long- term financial feasibility. The Site Of OMHI's Proposed Hospital. OMHI does not yet know exactly where the proposed location of the hospital is. Hobe Sound, where the proposed OMHI hospital is to be located, is near the northern border of Jonathan Dickinson State Park. Jonathan Dickinson State Park is a large, unpopulated park area. There is no evidence that either HCA or OMHI can purchase property in or around Hobe Sound that is appropriate for a proposed hospital for a price at or below 1.5 million dollars. Zoning Considerations. To construct an acute care hospital in the vicinity of Hobe Sound, the property must be designated "institutional" under the Martin County Comprehensive Plan. According to the Zoning Administrator of Martin County, the lands in the vicinity of Hobe Sound that are designated "institutional" are south of Bridge Road along U.S. 1 somewhat adjacent to Jonathan Dickinson State Park. This property was so designated because the Hobe Sound Company, which owns the "institutional" designated lands, wanted to keep residential development off of the property. This would insure that their well fields would not be encroached upon by small subdivisions. No evidence was adduced that any of this property is for sale, could be purchased by HCA within its budget, or is appropriate for a hospital. The only other "institutional" land near Hobe Sound is owned by Martin County for park sites, fire halls, and uses of that nature. No applications are pending to designate other lands "institutional" in the Hobe Sound area. The only time such applications can be made is between September 1 and October 31 of each year. The earliest OMHI could apply for such a designation, therefore, is September 1, 1986. Typically, it would take at least until April, 1987 to approve a change in designation to "institutional." Other building and zoning approvals necessary to construct a hospital would take until approximately the middle of 1987. OMHI's CON application projects that "continuous" construction would be underway in October, 1986. According to existing zoning and land use requirements in Martin County, it is likely that construction of the proposed hospital could not begin until at least mid-1987, some nine months behind schedule, assuming necessary approvals are successfully obtained. If construction of OMHI's proposed hospital was delayed longer than six months, HCA would have to rebudget the project. Forecasted Utilization. OMHI's forecasted utilization for its proposed hospital suffers from several flaws. OMHI's forecasted utilization at its proposed hospital is based upon OMHI's need analysis. In forecasting 1988 utilization, OMHI did not consider the timing difference between the need projection it issued (July, 1990) and the proposed opening date of the hospital (January, 1988). Because the need for osteopathic beds is less in 1988 than in 1990, basing a utilization forecast on 1990 need would result in an overestimate of patient days. OMHI assumed an average length of stay of 6.9 days in its bed need calculation, yet the projected average length of stay used by OMHI's financial expert at the proposed hospital is 5.8 days. If the average length of stay in January 1988 is 5.8 days, use of 6.9 will have resulted in an overestimate of need and, thus, an overestimate of utilization. OMHI projects a first year of occupancy at the proposed hospital of 51.7 percent which is greater than the average experienced in 1984 by all existing Florida osteopathic hospitals. The 15 AOA accredited hospitals in Florida experienced an aggregate acute care occupancy rate of 42.5 percent in 1984. None of those 15 hospitals is a start-up facility like OMHI proposes. None of the occupancy levels of other existing osteopathic hospitals even approached OMHI's 75 percent estimate of occupancy for the second year at the proposed new hospital. The aggregate acute care occupancy for all existing District IX hospitals in 1984 was 65.8 percent. Only 3 of 18 existing hospitals experienced occupancies greater than 75 percent in 1984. There will not be a sufficient number of osteopaths in the Martin-St. Lucie primary service area in 1988 and 1989 to reach OMHI's projected occupancy levels. Even if all the growth in the supply of osteopaths projected for 1988 or 1989 by OMHI for District IX occurred in only Martin and St. Lucie Counties, OMHI's utilization forecast is not supported. All of this goes to show that OMHI's need analysis was faulty and over-estimated the need for osteopathic beds in District IX, as previously discussed. Financial Feasibility Of The Proposed Hospital To evaluate the financial feasibility of OMHI's proposed project, OMHI's expert used a computer model. The computer model used by OMHI's financial expert incorrectly includes all insurance costs, including malpractice insurance costs and liability insurance, rather than just insurance that is rightfully associated with capital costs, to determine capital cost reimbursement by Medicare. The impact of including all insurance in allowable capital costs depends upon the Medicare payor mix. If that Medicare payor mix is about 60 percent, the impact of including all insurances would erroneously increase the bottom line of OMHI's pro forma. OMHI's financial expert used three different hospitals in the development of payor mix assumptions: Lawnwood Medical Center, Port St. Lucie Hospital, and Doctors General Hospital in Lake Worth. In assuming a 55 percent payor mix of Medicare patients, OMHI's financial expert did not know the percent of persons that are 65 and over in either the Hobe Sound area, Martin County, or District IX. One of the hospitals that OMHI's financial expert considered in assuming a 55 percent Medicare payor mix was Lawnwood, which has an obstetric/gynecology department. OMHI's application does not propose OB/GYN. Using Lawnwood's experience in determining the payor mix for the proposed hospital without making any adjustment is unreliable because people 65 and over do not use obstetric programs. Assuming a 55 percent Medicare payor mix for OMHI's proposed hospital was inappropriate. A Medicare payor mix of between 60-65 percent would be more in keeping with the demographics of the Hobe Sound area and Stuart and to the south. OMHI's financial expert failed to include emergency room physician fees in his analysis even though the proposed hospital will offer a 24 hour a day emergency room. The hospital is unlikely to generate sufficient emergency room revenues in its first 2 years of operation to cover the total expense of having emergency room physicians. OMHI's assumption of physician fees is understated. Staffing an emergency room with qualified physicians could cost $500,000 a year, $125,000 to $250,000 of which would have to be subsidized by OMHI. OMHI's financial expert inappropriately assumed that annual inflation would be 5 percent on both the expense side and the revenue side of his analysis. Rate Controls, a publication relied upon by financial professionals, shows all expense inflation rates above 5 percent. A higher inflation rate for expenses should have been used by OMHI's financial expert, recognizing the different components of inflation. Very few expense components will experience rates less than 5 percent. HCA's acquisition costs of the project are not included in the analysis performed by OMHI's financial expert. These costs should have been accounted for under generally accepted accounting principles. OMHI's financial expert erroneously assumed the same fixed amounts of $559,000 for deductions from revenue for 1988 and 1989 Medicaid and outpatient Medicare contractual allowances. Using fixed amounts in this manner illustrates a lack of understanding of the reimbursement system or an inability of OMHI's computer model to properly reflect how the system works. To assume these amounts would be fixed is totally erroneous. The bottom line profitability projected by OMHI's financial experts, approximately $3,000,000 before taxes after the second year, is not believable. Martin Memorial's financial feasibility expert, Robert Smith, prepared an alternative financial statement which reflects estimates and assumptions that more appropriately reflect the financial outcome of the proposed OMHI hospital in its first 2 years of operation. Mr. Smith's alternative assumptions reflect that the OMHI hospital will lose approximately $1.8 million dollars in its first year and $1.9 million dollars in its second year. The break-even analysis performed by OMHI's financial expert is not a valid analysis of the projected break- even point of OMHI's proposed hospital. OMHI's financial expert assumed in his break-even analysis that many of the projected expenses at the proposed hospital would be 100 percent variable. For example, physician fees and other fees, supply expenses, leases, rentals and repairs. It is inappropriate and erroneous to treat such items as totally variable. OMHI's financial expert's break-even analysis concludes that that proposed hospital will break-even with an average daily census of 35 or an occupancy of about 29 percent. A hospital, and particularly a 120-bed teaching hospital, is unlikely to break even at an average daily census of 35. Over a five-year period, using the more reasonable assumptions employed by Martin Memorial's expert, OMHI's hospital is not financially feasible. The hospital probably would lose a significant amount of funds in its fifth year of operation. IMPACT OF THE OMHI HOSPITAL ON COMPETITION. OMHI'S original CON application, on page 18, contained a discussion about HCA's impact on the market in the area of its proposed hospital to the north and west through its Lawnwood and Port St. Lucie Hospitals in St. Lucie County and H. H. Raulerson Hospital in Okeechobee County. OMHI stated in that initial application that its application would "bring competition to a health care market now dominated exclusively by Hospital Corporation of America and Martin Memorial Hospital." This discussion was omitted from the application after HCA became involved as a future owner of OMHI. Approval of the OMHI hospital would give HCA the opportunity to increase its impact on the health care market in and near the Martin-St. Lucie metropolitan statistical area. HCA would own three out of the four hospitals in Martin and St. Lucie Counties. In addition, Raulerson Hospital in Okeechobee County is owned by HCA. (Jupiter is managed by HCA but is not owned by HCA and HCA does not control policy there.) But approval of the OMHI hospital would not enable HCA to set prices and salaries in the area or take away the charge-paying patients, leaving the nonpaying patients. Only the primary service areas of Martin Memorial and Port St. Lucie overlap with OMHI's proposed service area. Even with OMHI's additional 120 beds, Martin Memorial still would have more beds than OMHI and Port St. Lucie. The OMHI Hospital would further HCA's advantage over Martin Memorial in the CON process. For example, Lawnwood and Martin Memorial are at present competing for an open-heart and cardiac catherization CON in the same batch. Martin Memorial faces an uphill battle because Lawnwood can draw upon a network of referral base hospitals, such as Port St. Lucie, Raulerson in Okeechobee, and perhaps others to the south. Given the lack of need for 120 osteopathic beds and the current under-utilization of allopathic hospitals in District IX, it should not be expected that OMHI's additional competition will promote quality assurance or cost effectiveness. To the contrary, the additional hospital services probably would result in duplication of services, higher costs and economic pressures to sacrifice quality assurance for cost considerations. MORE COST-EFFECTIVE ALTERNATIVES. HCA owns the Port St. Lucie, Lawnwood Memorial and H. H. Raulerson hospitals. Virtually no osteopaths practice at any of them. If HCA would operate those hospitals as Humana Hospital Palm Beaches is operated, the future need for osteopathic services and hospitals and internship and residency programs in District IX could be met more efficiently and at a lower cost. OMHI did not prove that it explored those alternatives and found them not to be practicable. There are now approximately 15 osteopathic hospitals in Florida, but only eight have internship or residency programs. If such teaching programs could be established at those hospitals, any additional need for them in Florida could be met in a more efficient and less costly manner than by building a hospital that is not otherwise needed. OMHI did not prove that it has explored those alternatives and found them not to be practicable. IMPACT OF THE PROPOSED HOSPITAL ON MARTIN MEMORIAL, JUPITER, AND NME. If the proposed hospital succeeds and fills with patients, it will negatively impact both Martin Memorial and Jupiter Hospitals. It would introduce another 120 beds, which are not physically any different from available beds. Jupiter Hospital has received 15 percent of its patients from the Hobe Sound area for the last few years. Jupiter Hospital is a fifteen minute drive from Hobe Sound. The OMHI hospital would have a substantial effect on Jupiter's market in the Hobe Sound area. It would impact substantially on Jupiter's financial viability. The OMHI hospital could result in Jupiter Hospital eliminating some services that it now makes available to the community. The OMHI hospital would probably result in another reduction of staff at Jupiter. The OMHI hospital probably would cause an increase in patient charges at Jupiter Hospital. National Medical Enterprises, Inc., d/b/a West Boca Raton Medical Center (NME), applied for a certificate of need to add 15 allopathic obstetrical beds at its hospital. The NME application was reviewed in the same batching cycle as the OMHI application. Approval of the OMHI application would decrease the net need for acute-care allopathic beds under Rule 10-5.11(23), Florida Administrative Code, and substantially impact NME's application.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Health and Rehabilitative Services, deny the application of Osteopathic Medical Hospitals, Inc., for a Certificate of Need for an osteopathic hospital in Martin County, CON Action No. 2842. RECOMMENDED this 8th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1986.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, the following relevant facts are found: HRS District VIII includes Sarasota, DeSoto, Charlotte, Glades, Lee, Hendry and Collier Counties. There are presently no existing and operating osteopathic hospitals within District VIII. However, there are two applications now pending for new for new osteopathic facilities within the District. One is in Sarasota and one is on behalf of the intervenor Doctors' Osteopathic Medical Center, Inc., d/b/a Gulf Coast Hospital, Inc. (Gulf Coast), which seeks to build and operate a 120-bed acute care osteopathic hospital to be located in south lee County. That application has proceeded through the administrative hearing process, received a Recommended Order for approval of 120 beds, a Final Order for approval of 60 beds and is currently on appeal. The intervenor Naples Community Hospital is an existing allopathic acute care hospital located in Collier County, which is immediately south of Lee County. The intervenor Lee Memorial Hospital is an existing allopathic acute care hospital located in Lee County and has approval to construct and operate a satellite facility in south Lee County. The petitioner Family Center Hospital Osteopathic, Inc., proposes to construct and operate a 100-bed full service, osteopathic teaching hospital in southwest Lee County. A particular site has not yet been selected or acquired. If the proposed facility was established, it would be in competition with allopathic hospitals for patients and staffing. The petitioner's original application for a Certificate of Need was submitted to HRS in the summer of 1982. That application was prepared by a health planning consulting firm, no member of which testified in this proceeding. The original application was amended prior to the hearing with regard to the need for osteopathic beds in the area, the financial projections and the architectural design of the facility. Petitioner intends to retain a full-time management firm to be responsible for managing the proposed facility. No firm commitments have been made and no tentative price quotations have been received for such an arrangement. Petitioner proposes to construct a two-story 90,000 square foot building with ancillary services on the first floor and patient areas on the second floor. The patient areas include a 15-bed obstetrical until, a 10-bed pediatrics unit, an 8-bed ICU/CCU and the remaining beds would be medical- surgical beds. The architect had no knowledge of the location of the site proposed, and thus no site plan has been developed. While the average construction cost per square foot of a health care facility in Florida is approximately $115 or $120, that cost can vary depending upon site development requirements, construction materials, floor coverings, wall coverings and the like. These details have not yet been determined The fact that the proposed facility is to be teaching hospital was not taken into account in the schematic design. An accountant, who had no prior experience with projecting financial feasibility for a health care facility was retained by the petitioner to prepare a projected financial statement for the proposed facility. His opinion that the project would be financially feasible within the second year of operation was based primarily upon occupancy projections made by a health planner, the itemization and costs associated with manpower, salaries, equipment, supplies, etc., as projected in the original application and conversations with a "Mr. Becker" relating to bond financing. He compared his estimates and projections with other Certificate of Need applications in the Lee County area. The accountant was unaware of whether nor not the applications relied upon for comparison purposes had been update or revised at some subsequent time. He also received data concerning revenues of a "select group" of hospitals as published in a Hospital Cost Containment Board report for 1984, but made no determination of that Board's grouping of hospitals for comparative purposes. No independent investigation of the accuracy of the contents of the original application was performed by the accountant or anyone on his behalf. Although the accountant adjusted the manpower requirements as originally projected to conform with his perception of the occupancy projections, he was unaware of the minimum staffing requirements imposed upon hospitals by state and/or federal regulations. The witness candidly admitted that he did not consider it within his expertise to determine the manpower or equipment requirements for the proposed facility. He is unaware of whether or not the bond financing proposed for this project is available. There was no showing that petitioner had sufficient funds available to make expenditures for project development or other pre-opening expenses, estimated to be over $400,000.00. His revenue projections did not take into account the existence of other osteopathic beds in the area. By utilizing alternative methodologies which took into account both statewide and district wide statistics regarding osteopathic utilization rates, the number and distribution of osteopathic physicians, and population projections; the petitioner's health care planner concluded that there is a gross need in the year 1991 for 144 osteopathic acute care hospital beds in District VIII. Assuming that there are no other osteopathic hospitals in District VIII, the health care planner was of the opinion that there is a net need for the same number of beds in that District. She further concludes that the proposed osteopathic hospital would obtain 90% of the osteopathic patients of Lee County, 50% of the osteopathic patients in other District VIII Counties and an occupancy rate of approximately 73% for the second year of operation. She admits that if Gulf Coast is awarded a Certificate of Need for 60 beds or 120 beds and/or if the Sarasota applicant is awarded a Certificate of Need, the net bed need of 144 would be reduced accordingly and the projected market share and occupancy rates would be affected. Petitioner presented no evidence concerning its ability to adequately staff its proposed facility. Likewise, no evidence was presented as to petitioner's ability to obtain funds for capital expenditures or for the operation of the facility. The impact of the proposed project upon the cost of providing health services was not addressed by the petitioner. There is a need for research and educational facilities to train doctors of osteopathic medicine at the student, internship and residency levels. Both Manasota Osteopathic General Hospital in Sarasota and Gulf Coast Hospital in fort Myers have indicated their desires to become teaching facilities.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for a Certificate of Need be DENIED. Respectfully submitted and entered this 7th day of May 1986 in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 7th day of May 1986. APPENDIX The proposed joint findings of fact submitted by Doctors' Osteopathic Medical Center, Inc., d/b/a Gulf Coast Hospital, Inc., and Naples Community Hospital have been approved and/or incorporated in this Recommended Order, except as noted below. Paragraph 7: Rejected as unnecessary to the issues in this proceeding. Many of the proposed findings of fact contain recitations of a lack of evidence regarding certain criteria. Where these have not been included in the factual findings, they are included in the Conclusions of Law, where pertinent. COPIES FURNISHED: Claude H. Tison, Jr., Esquire MCFARLANE, FERGUSON, ALLISON & KELLY Post Office Box 1531 Tampa, Florida 33601 R. Sam Power, Esquire Office of General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32301 John D. C. Newton, II, Esquire CARSON & LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 W. David Watkins, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Ivan Wood, Jr., Esquire WOOD, LUCKSINGER & ESPTEIN One Houston Center Suite 1600 Houston, Texas 77010 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against the Respondent's license based on the alleged violations of Section 459.015(1), Florida Statutes, and Rule 21R-20, Florida Administrative Code, as set forth in the Administrative Complaint: By fraudulently misrepresenting that he met the criteria for exemption from demonstrating financial responsibility. By failing to demonstrate his financial responsibility to pay claims for medical care. By falsely swearing on his Physician's License Renewal form. By violating a term of the Final Order of the Board of Osteopathic Medical Examiners dated August 22, 1988.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. Respondent is and has been at all times material hereto licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001663. Respondent's practice is in Tampa, Florida. Respondent was employed, in his capacity as an osteopathic physician, as an independent contractor at a walk-in clinic owned and operated by Dr. J. Eloian followed by Mitchell D. Checkver, D.O., which office is currently located at 7211 N. Dale Mabry, #100, Tampa, Florida, from 1984 through 1990. Respondent's license to practice osteopathic medicine was in a probationary status from August of 1988, until June 15, 1990, pursuant to a Final Order filed by the Board of Osteopathic Medical Examiners (Board) on August 2, 1988, regarding case numbers 0055173, 0038979 and 00372994. As a condition of probation Respondent was to comply with all state and federal statutes, rules and regulations pertaining to the practice of osteopathic, including Chapters 455 and 459, Florida Statutes and the Florida Administrative Code. As a condition of probation, Respondent was to pay the Board a total administrative fine of $3,000, which was said. About a year before Dr. John Eloian retired in August 1988, he discussed the possibility of utilizing the exemption for part time physicians (in Section 459.0085, Florida Statute) with other doctors in his office, including Respondent. A condition of renewing an active license to practice osteopathic medicine in the State of Florida, is compliance with Section 459.0085, Florida Statutes. The licensee must demonstrate financial responsibility or meet the criteria for exemption. Two years later, on November 6, 1989, Respondent submitted a Board of Osteopathic Medical Examiners' Physician's License Renewal Form, and signed a sworn affidavit as to the veracity of the information provided therein. A sign was posted announcing to the patients that no malpractice insurance was carried by Respondent and Dr. Eloian. Within the License Renewal Form, Respondent represented that he was exempt from demonstrating financial responsibility based on his meeting all of the criteria listed. The exemption which the Respondent attempted to utilize had criteria which included the condition that the Respondent has not been subject, within the past ten (10) years of practice, to a fine of $500.00 or more for a violation of Section 459, Florida Statutes. The form specifies that a regulatory agency's acceptance of a stipulation, in response to filing of administrative charges against a licensee, shall be construed as action against a licensee. The exemption also had criteria which specified that the Respondent had maintained a part time practice of no more than 1,000 patient contact hours per year. Based on Respondent's submission to the Board of Osteopathic Medical Examiners of this Physician's Licensure Renewal Form in November 1989, and the information given therein, his license to practice osteopathic medicine was renewed through 1991. Subsequently, Respondent acknowledged he was ineligible for the exemption and obtained medical malpractice insurance, effective July 1, 1990. Respondent read, or should have read, the Physician's License Renewal form sufficiently to be aware of the language therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(a), Florida Statutes. As punishment therefore Respondent should pay a fine of $1,000, and he should be placed on probation by the Board of Osteopathic Medical Examiners with such reasonable terms and conditions as the Board may require. RECOMMENDED this 13th day of May, 1991, in Tallahassee, Leon County, 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 13th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0395 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: paragraphs 1,3,4,5,6,7,8,9,10,11,12,13, 14,18 Rejected as irrelevant or as argument: paragraphs 2,15,16,17 Respondent's proposed findings of fact: Accepted in substance: paragraphs 1 (in part), 4 (in part), 7 (in part), 9 Rejected: paragraphs 2 (in part, as against the greater weight of the evidence and as a conclusion of law), 3 (conclusion of law), 5 (irrelevant), 6 (irrelevant), 7 (in part), 8 (irrelevant) 10 (irrelevant) COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John R. Feegel, Esquire Thomas Sabella, Jr., Esquire 401 South Albany Avenue Tampa, FL 33606 Bill Buckhalt Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation, Suite 60 Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The following Findings of Fact are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to section 20.43, and chapters 456 and 459, Florida Statutes. At all times material to these proceedings, Respondent was a licensed osteopathic physician within the State of Florida, having been issued license number OS 8729. Respondent's address of record at the time of filing the Administrative Complaint was 11950 County Road 101, Suites 101, 102, and 103, The Villages, Florida 32162. Respondent's current address of record is 13767 U.S. Highway 441, Lady Lake, Florida 32159. Respondent currently holds no board certification in any specialty area, and did not complete any residency other than in emergency medicine. Respondent attended Michigan State University, College of Osteopathic Medicine. In 2002, he began full-time practice as an emergency room physician at Munroe Regional Medical Center in Ocala, Florida. He worked as an emergency room physician until he opened Exceptional Urgent Care Center (“EUCC”). At all times material to this complaint, Respondent owned and operated EUCC. Treatment Provided to Patient J.K. On March 15, 2018, J.K., along with his wife, presented to EUCC with complaints of a sore throat and fever. This was the first of two visits to the clinic. J.K. reported his medications as Amlodipine, Warfarin, Tamsulosin, and Dofetilide (unless otherwise indicated, hereinafter referred to by its trade name "Tikosyn"). J.K. was prescribed these medications by his cardiologist at the William S. Middleton Memorial Veterans Hospital (“V.A. Hospital”) in Wisconsin, his home state. Relevant to this matter, Tikosyn helps patients maintain a normal heartbeat rhythm. Tikosyn was prescribed to keep J.K.'s heart in rhythm as he had atrial fibrillation. J.K. was treated by a nurse practitioner, who ordered a chest x-ray and a flu swab. The flu swab returned negative, and the chest x-ray showed no focal pneumonia. J.K. was prescribed Tamiflu and Naproxen. J.K. elected not to fill the Tamiflu due to the “expensive cost.” Respondent was not involved in J.K.'s treatment on this date. On March 16, 2018, J.K. and his wife K.K. returned to EUCC as J.K.’s symptoms had not improved. On this visit, J.K. saw Dr. Im. Dr. Im evaluated J.K. and ordered two tests. Dr. Im ordered a Prothrombin Time International Normalized Ration ("PT INR") test to determine J.K.'s coagulation and he ordered a CT scan of the chest. The PT INR results were within the therapeutic range. The CT scan showed shattered ground- glass opacification in the posterior right lower lobe and the medial left upper lobe. The CT scan findings were interpreted as "non-specific, may represent hypoventilatory change or an infectious inflammatory process (acute or chronic).” Respondent advised J.K. and K.K. that the CT scan appeared to show the start of pneumonia, and he was going to prescribe three medications: Levaquin 750 mg, Prednisone 20 mg, and Zyrtec 10 mg. K.K. testified that she asked Respondent if the Levaquin, Prednisone, or Zyrtec were contraindicated with any of J.K.'s current prescriptions, specifically Tikosyn. K.K recalls that Respondent replied that he was not familiar with Dofetilide (Tikosyn), and advised them to check with the pharmacist to see if there were any contraindications. Although Respondent initially advised J.K. and K.K. that he was not familiar with Tikosyn, Respondent testified that he advised J.K. and K.K. of the possible interactions between Levaquin and Tikosyn and told her that the interaction was very rare. He testified that he advised J.K. and K.K. that the pharmacist is a safety net, and the pharmacist would call him to discuss the prescriptions if he missed anything. K.K. credibly testified that Respondent did not counsel J.K. or K.K. on any risks regarding the medications Dr. Im prescribed or provide them with any alternatives during the visit on March 16, 2018. J.K. and K.K. left EUCC and went to Publix to fill the prescriptions. K.K. asked the pharmacist if any medications would interfere with any of J.K.'s prescribed medications. Upon advice of the pharmacist that Levaquin was contraindicated with Tikosyn, K.K. declined to fill the prescription for Levaquin. On behalf of J.K., K.K. then called EUCC and asked for a different antibiotic that would not interact with Tikosyn. However, she was instructed to contact J.K.'s cardiologist. K.K. then contacted the cardiology staff of the V.A. Hospital in Wisconsin, who instructed K.K. to follow the advice of the pharmacist and (tell J.K.) not to take the Levaquin. K.K. called EUCC a second time to confirm whether J.K. had an infection and she was told that J.K. did not have an infection. Respondent recalls that he had a personal conversation with K.K. during a courtesy telephone call placed the next day (March 17, 2018). Respondent testified that during that call, he explained Levaquin was the drug of choice, other medications would not cover J.K.'s pneumonia, the potential interactions were very rare, and J.K. needed to take the Levaquin. By his own admission and his medical records, Respondent did not provide J.K. or K.K. with any specific alternative antibiotics and insisted that J.K. needed to take the Levaquin. K.K. disputes that Dr. Im spoke with her or J.K. at any point after the March 16, 2018, visit. She clearly recalled that she spoke with a woman each time she spoke with staff at Dr. Im’s office. Overall, J.K. and K.K. clearly and convincingly testified that Respondent never advised them of the risks of using Levaquin with Tikosyn or provided any alternatives to the Levaquin. Expert Testimony Petitioner offered the testimony of Dr. Anthony Davis, who testified as an expert. Dr. Davis has been licensed as an osteopathic physician in Florida since 1995. Dr. Davis attended Kirksville College of Osteopathic Medicine and completed an internship in family practice. He has been board certified in family medicine by the American Board of Osteopathic Family Physicians since 2001, and board certified in emergency medicine by the American Association of Physician Specialists since July 2003. He is also affiliated with professional organizations including the American College of Family Practice and Florida Osteopathic Medical Association. Dr. Davis was accepted as an expert in emergency and family medicine. Dr. Davis relied upon his work experience, his training, and his review of the medical records for J.K. to render his opinion regarding the standard of care related to treating J.K. The standard of care requires an osteopathic physician treating a patient similar to J.K. to: (1) provide and document their justification for why Levaquin was the appropriate drug of choice; (2) note the patient’s acknowledgment that there are interactions with Tikosyn; (3) ensure the patient understands the risks and benefits of combining Tikosyn and Levaquin; (4) explain to the patient that there are limited alternatives to Levaquin; and (5) provide the reason for prescribing a potentially dangerous drug. Levaquin is a medication that comes with a black box warning that requires physicians to counsel patients on the risks associated. When a drug is designated as contraindicated and has a category X for interaction, the standard of care requires that the physician clearly explains to the patient why they are using the drug and defend how it is going to be safe. Tr., p. 70. Dr. Davis opined there were multiple treatment options available for J.K., such as supportive care or an antibiotic with a lower risk of interaction with J.K.'s existing medication. Moreover, Dr. Davis testified that there were safer alternatives to Levaquin that would effectively treat pneumonia, such as doxycycline, if J.K. actually had pneumonia and an antibiotic was necessary. Respondent provided literature from the Infectious Diseases Society of America related to community-acquired pneumonia in an attempt to prove that X-Ray or other imaging techniques are required for the diagnosis of pneumonia and to support his claim that Levaquin was the drug of choice for J.K. However, Dr. Davis credibly pointed out that the article, published in 2007, is no longer accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a Final Order as follows: Finding that John Joseph Im, D.O., violated section 459.015(1)(x), by committing medical malpractice, as defined in section 456.50, as alleged in the Administrative Complaint; Issue a letter of concern against Respondent’s license to practice osteopathic medicine; Requiring completion of a prescribing practices course; and Imposing an administrative fine of $2,500. DONE AND ENTERED this 16th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2019.
Findings Of Fact Respondent, Leon L. Shore, was at all times material hereto a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001600. On or about December 19, 1985, respondent presented to Harvey Sogoloff a pharmacist licensed in the State of Florida, a prescription to be filled. The subject prescription was written by respondent, and prescribed Percodan for himself. Mr. Sogaloff duly filled the subject prescription. Percodan, whose active ingredient is Oxicodone Hydrochloride, a salt of oxicode, is a Schedule II narcotic drug, as defined by Section 893.03(2)(a), Florida Statutes (1985). At the time of the prescription was written, respondent maintained his primary place of practice at 4801 South University Drive, Davie, Florida. During the first week of September, 1986, respondent closed his practice at that location without notice to petitioner, and did not thereafter practice for several months. In January, 1987, respondent resumed his practice at a new location, without notice to petitioner. Respondent asserts, however, that 2-3 weeks after commencing such practice, he instructed one of the medical directors at the center to notify petitioner of his new address. There was no proof that such notice was given, but following the commencement of this case, respondent did notify the petitioner of his new address, and no untoward consequences were shown to have resulted from such delay.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered placing respondent on probation for a period of one (1) year subject to such conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ORDERED this 21st day of January, 1988, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 2. & 8. Addressed in paragraphs 4 and 5. & 4. Addressed in paragraphs 2 and 3. 5-7 & 9. Rejected as not a finding of fact, or subordinate. Respondent's proposed findings of fact are addressed as follows: Not necessary to result reached. Not necessary to result reached. 3-9 & 12. Rejected as not a finding of fact, subordinate, or contrary to the result reached. 10 & 11. Addressed in paragraphs 4 and 5. COPIES FURNISHED: David G. Vinikoor, Esquire DAVID G. VINIKOOR, P.A. 420 S. E. Twelfth Street Fort Lauderdale, Florida 33316 Derk A. Young, Esquire 320 Southeast 9th Street Fort Lauderdale, Florida 33316 Mr. Rod Presnell Executive Director Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Applicants. Land O'Lakes Petitioner Land O'Lakes Hospital, Inc. (Land O'Lakes) is an applicant for a certificate of need to construct and operate a 112-bed general acute care hospital in Land O'Lakes. None of the beds will be designated as either pediatric or obstetrical beds; all will be considered general medical/surgical beds. Notwithstanding its own designation of Land O'Lakes Hospital, Inc., as the Petitioner in Case No. 84-1509, the actual applicant is entitled Health Care Associates Of America, Inc. The President of Health Care Associates Of America, Inc., is a veterinarian named Robert R. Hase, Jr. Veterinarian Hase's only experience with human health care is his involvement in his company's certificate of need for a 60-bed nursing home in Hudson, Florida, next to the Bayonet Point Regional Medical Center. Hase's company obtained the certificate of need in 1982, and the facility still is under construction, being only about 40 percent completed. In the preparation of the Land O'Lakes application and the preparation for final hearing, Hase relied to a large extent on the advice of those he retained as expert witnesses for the final hearing. For whatever reason, Hase waited until shortly before the final hearing to plan and decide upon some of the important details of his proposed project. As of the final hearing, Land O'Lakes had a square foot analysis for the proposed facility but no line drawings, no functional program and no utilization forecast for ancillary departments. The Land O'Lakes pro formas were not prepared until less than two weeks before the final hearing. Although Land O'Lakes relied to a great extent on the advice of its expert witness Michael Schwartz in shaping and modifying its application, there was no evidence that Mr. Schwartz would continue to advise Land O'Lakes or otherwise be involved in the project's development after the final hearing or in the operation of the facility when built. Within one week before the final hearing, Hase changed the Land O'Lakes application from one for a for-profit hospital to one for a not-for-profit hospital. The motivation for the change primarily was to improve the chances that the application ultimately would be approved. The switch seemed inconsistent with Hase's primary interest in the "financial bottom line" and whether things made "financial sense" to him as opposed to "good health care sense." Despite the technical application for a not-for-profit hospital, the evidence did not offer much assurance that Land O'Lakes would remain a not-for- profit hospital after the granting of a certificate of need unless required by HRS or University Community Hospital. Shortly before the final hearing, Land O'Lakes entered into an "intent to agree" with University Community Hospital (UCH) for management and consulting services in the pre-operational and operational phases of the proposed Land O'Lakes hospital and for ancillary and support services during the operational phase. The "intent to agree" was not signed until the Friday before the start of the final hearing on Monday, August 11, when the original was produced by Hase during cross examination. So new was this development that not even Land O'Lakes' attorneys were aware that the "intent to agree" had been signed. Despite the uncertain nature of the arrangements between Land O'Lakes and UCH, certain features of the Land O'Lakes application are dependent upon the establishment of the relationship. For example, the application does not include enough ancillary services to support a free-standing hospital, even a relatively small, relatively rural and relatively unsophisticated hospital. Only the most basic ancillary services would be provided at Land O'Lakes. The rest would be referred to UCH. As a result of this arrangement, the Land O'Lakes application proposes a hospital with a staff 13 to 15 FTE's smaller than one would expect, with resulting lower forecasted operating expenses. In addition, Land O'Lakes does not plan to have 24-hour emergency room service, intending to rely on UCH for emergency room service part of the time. Since the "intent to agree" is tentative in nature, even if a Land O'Lakes-UCH relationship is established, it is uncertain what that relationship would be. It is possible that it ultimately would result in Land O'Lakes becoming a virtual satellite hospital for UCH. (UCH has in fact already applied for a certificate of need for a satellite hospital in north Hillsborough County.) Bi-County Community Hospital. Petitioner Bi-County Community Hospital (Bi-County) has applied for a certificate of need to construct and operate a 100-bed osteopathic acute care hospital in Land O'Lakes. Like Land O'Lakes, Bi-County would not have any designated pediatric or obstetrical beds, only general/medical surgical beds. But unlike Land O'Lakes, Bi-County I's designed to have 24-hour emergency room service and a full complement of ancillary and support services ordinarily maintained and operated in a relatively rural and relatively unsophisticated hospital of its size. In addition, as an osteopathic hospital, Bi-County would be accredited by the American Osteopathic Association (AOA) and would make conditions conducive to practice of osteopathy at the hospital, including the installation and availability of osteopathic manipulation tables, without excluding or discouraging the practice of allopathic medicine at the hospital. The application also represents that it will offer an osteopathy internship program. Bi-County's principals include osteopathic doctors Lewis Faulkenberg and Robert Ford, an allopathic doctor named Fellman, and Mrs. Dr. Faulkenberg. Drs. Faulkenberg and Ford started Bi-County primarily as a response to the reduction of their privileges at Carrollwood Community Hospital in north Hillsborough County. The three physicians have considerable experience as practitioners, and Dr. Faulkenberg has experience as developer, principal, president of the board of directors and medical director of a 250-bed osteopathic hospital opened in Colorado in 1963. Notwithstanding Faulkenberg's experience, a health care facilities development company named Southwood Development Company, owned and operated by James H. Lewis of Elizabethton, Tennessee, has been in charge of the preparation of, and modifications to, the Bi-County application and the preparation for final hearing. Lewis also has selected Bi-County expert witnesses for the final hearing and is paying litigation costs. Faulkenberg and the other Bi-County principals have committed themselves to invest in the project in the future if the certificate of need is granted. Although most of Lewis' experience has been in the nursing home industry, he demonstrated his ability to shepherd the proposed project to the operational phase. Like Land O'Lakes, Bi-County also left some important details of its application until shortly before the final hearing. Bi-County did have line drawings of a proposed facility, but they were prepared approximately 10 days before the final hearing primarily to give the appearance of preparedness which did not exist. The architect who drew the plans did not know the gross square footage of the proposed facility and did not know the HRS regulations which would impact the design of the facility. The square footage for certain areas of the drawing he did were inconsistent with the square footage for the same areas in the application. The architect designed the facility for all private rooms, contrary to the application. He did the drawing without even inquiring as to Bi-County's desire as to the mix of private and semi-private rooms. Finally, the line drawing erroneously includes a labor and delivery room which is not part of the application. There also was no evidence that Bi-County had designed a functional program or had forecasted utilization for ancillary departments. Again, these are primary steps in the prudent preparation of a plan to built a new hospital. Bi-County's financial expert was not retained until two weeks before the final hearing and did not prepare pro formas until after her deposition. Bi-County's application contemplates management by a for-profit company named Health Care Management Corporation, a wholly owned subsidiary of Basic American Medical, Incorporated, (BAMI). Under the Bi-County application, Health Care Management would be paid 5 percent of net operating revenue as a management fee. This creates a conflict with Bi-County's not-for-profit status by building in a management incentive to maximize profitable procedures and minimize less profitable procedures regardless of community needs. Also, since Health Care Management primarily owns and operates rural hospitals, the Bi- County application builds in the real possibility that Health Care Management eventually would buy Bi-County from Faulkenberg and the other principals and change it to for-profit status. No management contract has as yet been entered into between Bi-County and Health Care Management. However, in light of Faulkenberg's experience, there is more assurance that Bi- County would be properly managed, subject to the reservations of the preceding paragraph, than that Land O'Lakes would. Quality Of Care (Section 381.494(6)(c)3., Florida Statutes 1985). Land O'Lakes' ability to provide quality care is dependent upon the establish of a relationship with UCH. Without UCH, Land O'Lakes as proposed would not provide necessary ancillary services and support and would not be able to operate a twenty-four hour emergency room. Assuming the Land O'Lakes-UCH relationship, however, the Land O'Lakes proposal would be able to provide quality care. There was sufficient evidence to prove that Bi- County would be able to provide quality care. There was little evidence as to the availability of health manpower (Section 381.494(6)(c)8., Florida Statutes 1985) to operate either Land O'Lakes or Bi-County. However, it would appear that the more serious issue than the availability of doctors and nurses to care for the patients is the availability of patients to support the doctors and nurses. If the need for the hospital services is there, doctors and nurses can be expected to follow. Need In Relation To State And District Health Plans (Section 381.491(6)(c)1., Florida Statutes 1985). State Health Plan. Goal 1 under the Florida State Health Plan is "to develop acute care resources in the quantity and mix which appropriately meet population needs in the most cost-efficient manner. The first objective under that goal is for the ratio of acute care hospital beds per one thousand of Florida's population be less then 4.11 by 1989. At this time, there are approximately 53,000 hospital beds in Florida, approximately 2000 to 7000 too many under the health plan's objective. The health plan recommends that increases in the supply of hospital beds in Florida be restrained through the state certificate of need program. Objective 2.2 under Goal 1 of the State Health Plan is to assure that acute care hospital services are available and accessible to urban residents within 30 minutes average one way driving time through 1989. The plan recommends that sub-districts with net need for beds be identified and acute care beds reallocated to subdistricts exhibiting need or inadequate access. This objective and recommendation is designed to help meet Goal 2 under the State Health Plan "to insure adequate access to acute care resources for all Floridians." Goal 3 under the state health plan is "to promote the efficient utilization of acute care services." Objective 3.1 under Goal 3 is to attain an average annual occupancy rate of at least 80 percent by 1989 for all non- federal, short stay hospital beds considered together in each planning district. Again, the plan recommends that increases in the supply of licensed hospital beds in Florida be restrained through the state certificate of need program. The 80 percent occupancy standard applies for both allopathic and osteopathic hospital beds. It is not met state-wide in Florida, in District 5 (consisting of Pasco and pinellas Counties), in Pasco county or in Pinellas county. Occupancy rate for all acute care hospital beds in each subdistrict of District 5 for 1985 were: West Pasco 61 percent East Pasco 55 percent North Pinellas 61 percent South Pinellas 62 percent The same occupancy rates for medical/surgical, intensive care and cardiac care beds only were: West Pasco 63 percent East Pasco 58 percent North Pinellas 58 percent South Pinellas 50 percent The State Health Plan does not specifically address the need for osteopathic acute care hospital beds. District 5 Health Plan. Neither does the District 5 Health Plan specifically address the need for osteopathic acute care hospital beds. The District 5 Health Plan does, however, set forth policies intended to promote access for the indigent population to adequate health care. To promote this policy, the District 5 Health Plan states that future expansion of acute care hospital facilities should be through existing providers with a history as major providers of care to the medically indigent. The plan also states that future changes in the hospital facilities and services systems in District 5 should occur so as to maintain the fiscal and programmatic integrity of institutions providing a full range of services with documented access for the total community irrespective of ability to pay. Land O'Lakes and Bi- County, as proposed new providers, have no history to look at. Meanwhile, intervenor Riverside Hospital is the designated provider of hospital care for the indigent population in west Pasco County. Even so, its occupancy rate for 1986 has averaged only between 40 and 45 percent. 11.2 percent of its admissions, or 353 admissions in 1985, were from the Land O'Lakes area. At an average length of stay of 6 days, that translates to 2,118 patients from the Land O'Lakes area in 1985. At average gross revenue per patient stay between eight hundred fifty and one thousand dollars in 1986, the Land O'Lakes patient days represent approximately between one million eight hundred thousand and two million one hundred thousand dollars of gross patient revenue to Riverside Hospital. While the evidence did not quantify how much net patient revenue this represents, neither did the applicants, Land O'Lakes and Bi-County, prove that their proposed hospitals in Land O'Lakes would not seriously adversely affect the fiscal and programmatic integrity of Riverside Hospital. (Land O'Lakes forecast that it will capture 80 percent of the market of the Land O'Lakes area.) The District 5 Health Plan also adopts the policy of optimizing utilization of existing resources in District 5. The health plan states that additions to the inpatient acute care bed complement in a designated subdistrict should not be considered unless a numeric bed need is shown and, in the case of medical/surgical ICU and CCU services, the occupancy rate of existing subdistrict bed inventory is 80 percent. As seen in Findings Of Fact 29 through 32 below, there is no district need in the applicable subdistrict. But even if there were, the 1985 occupancy rate for existing services in the East Pasco subdistrict was only 58 percent. To optimize utilization, the District 5 plan also cautions that no additional acute care beds should be added to the inventory of a subdistrict which would result in a greater number than indicated by the bed need methodology except under extraordinary circumstances and in compliance with the directive referred to in the immediately preceding paragraph. See Findings Of Fact 29 through 32, below, for application of the bed need methodology. The District 5 Health Plan also includes a section on accessibility which states: "Travel time is not an obstacle in Pasco county, as all residents are within an average of 30 minutes of hospital services on an annual basis. This meets the time travel criterion for urban areas in the State adopted acute care rule". See Findings Of Fact 40 through 48, below, on accessibility. Uniform Bed Need Methodology. The uniform state-wide methodology for determining and forecasting acute care hospital need in HRS's planning districts is contained in Rule 10-5.11(23), Florida Administrative Code (1984) and (1985 Supp.). The division of District 5 into subdistricts and the allocation of bed need to designated subdistricts in District 5 is contained in Rule 10-17.006, Florida Administrative Code (1985 Supp.). The bed need methodologies forecast bed need at certain times, or planning horizons, in the future. Before the decision of the District Court of Appeal, First District of Florida, in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986), HRS had a policy of forecasting acute care hospital bed need on a planning horizon five years from the date of the final formal administrative hearing. After the decision in Gulf Court, to make Gulf Court more workable and more consistent with reality, HRS now has a policy of interpreting the "fixed pool of beds" referred to in the decision to mean the planning horizon on which bed need is forecasted. HRS now has a policy of forecasting acute care hospital bed need on the bi-annual planning horizon closest to, without exceeding, five years from the date for filing applications for a particular batching cycle. The application filing date for the batching cycle in which Land O'Lakes and Bi- County filed their applications was November 1983. The applicable planning horizon under the HRS policy is July 1988. Under the policy, its makes no difference whether HRS notifies one or more applicants in a batching cycle of alleged errors or omissions or whether one or more applicants file documents intending to cure the alleged errors or omissions, as Land O'Lakes did in this case in April 1984. The HRS policy for determining the planning horizon for a batching cycle is a reasonable interpretation of the Gulf Court decision. Under Rule 10-17.006, Florida Administrative Code (1985 Supp.), the Land O'Lakes area, which includes the proposed location of both the Land O'Lakes hospital and the Bi-County hospital, is within the East Pasco county subdistrict of District 5, near the border of the west Pasco County subdistrict. There is relatively little population or potential for new population just west of the subdistrict border in the west Pasco subdistrict. Using the uniform state-wide methodology, there is an excess of 429 acute care hospital beds forecasted in July 1988 (assuming the 1986 existing and approved bed inventory is not increased). However, by use of the rule method for allocating forecasted bed need to the subdistricts, there would be a need forecast for July 1988 in both the East Pasco and west Pasco subdistricts of District 5. But the need in the East Pasco subdistrict will only be 18 beds. (The need in west Pasco will be only 70 beds.) Osteopathic Acute care Bed Need (Section 381.494(2), Florida Statutes 1985). District 5 has not been divided into subdistricts for purposes of determining and forecasting the need for osteopathic acute care hospital beds. There was no evidence that it is reasonable to divide District 5 into subdistricts for this purpose. Nor was there any evidence what accessibility standard should apply to osteopathic acute care hospital beds only. There are only four osteopathic acute care hospitals in District 5, all located in Pinellas county. Using the current osteopathic use rate in District 5 and the current average length of stay in District 5, a need for only 376 osteopathic beds in District 5 is forecast for July 1988, assuming 80 percent occupancy. Currently, there are 662 osteopathic beds in District 5, resulting in a forecast net excess of 286 beds in the district in July 1988 assuming that the current osteopathic bed inventory is not increased. In 1985, the 662 osteopathic beds in District 5 were only 44 percent occupied; in other words, on any given day in 1985 there were an average of approximately 370 empty osteopathic beds. Using the Pinellas County osteopathic use rate, a need for 94 osteopathic beds in Pasco County can be forecast in July 1988, assuming 80 percent occupancy. But that forecast is greater than the actual need. Osteopathic hospital use by Pasco County residents is included in the Pinellas County use rate, but none of the Pinellas County osteopathic hospital beds are allocated to Pasco County for purposes of the forecast. The evidence did not prove that there is enough need for osteopathic acute care hospital beds in District 5 to support and justify the proposed 100- bed Bi-County Hospital. This finding is buttressed by the fact that, at current admission rates and the 80 percent occupancy standard, it would take another 374 more osteopathic physicians to fill the osteopathic beds in District 5 in July 1988 if the Bi-County Hospital is added to the inventory. Such an increase in the number of osteopathic physicians in District 5 is highly unlikely. Hospital beds also are available at Carrollwood Community Hospital. Carrollwood Community is accredited by the AOA and is dedicated to and does create an environment in which both osteopathic and allopathic physicians can practice medicine. The chief of staff is an osteopath, and five of the seven department chiefs are osteopaths. Although the credentials committee has three allopaths to two osteopaths and although some disgruntled osteopaths have complained about the current administration of the hospital, Carollwood Community qualifies as an osteopathic hospital. It has 120 medical/surgical and ICU/CCU beds of which only 49 percent were occupied in 1985. Carrollwood Community is in north Hillsborough County within approximately 30 minutes average drive time from the Land O'Lakes area. Finally, although not strictly speaking an osteopathic hospital, Riverside Hospital in West Pasco County, approximately 30 to 45 minutes from the Land O'Lakes area, also provides services for osteopathic physicians and patients. Riverside Hospital offers a full range of osteopathic services and treatment. The chief of staff is an osteopath; it has a three member board of trustees of whom one is a D.O. There are no restrictions to admission of patients to the hospital as osteopathic patients, nor restrictions to admission to the staff to osteopaths, and the admissions for physicians is by a five- member medical executive committee which has on it three M.D.'s and two D.O.'s. Approximately 17 percent of Riverside's medical/surgical and ICU/CCU admissions in 1985 were osteopathic admissions. In 1985, Riverside's medical/surgical and ICU/CCU occupancy rate was 53 percent; in other words, on the average approximately 41 of Riverside's 88 medical/surgical and ICU/CCU beds were empty on any given day. Availability And Accessibility Of Existing Beds (Section 381.494(6)(c)2. Florida Statutes 1985). Availability. Due to low occupancy rates at existing acute care hospitals in Pasco County and Hillsborough county, there are plenty of acute care hospital beds available for use by residents of Land O'Lakes area. The following hospitals are within an average of approximately 30 minutes to an hour of the Land O'Lakes area: Humana Hospital in Dade city; East Pasco Medical center in zephyr Hills; Riverside Hospital and community Hospital of New Port Richey in New Port Richey; and Bayonet Point Regional Medical center in Hudson. In addition, Carrollwood community Hospital and University community Hospital in north Hillsborough county in HRS District 6 are within approximately 30 minutes of the Land O'Lakes area. On the average, those hospitals had the following empty beds on any given day in 1985: Hospital # of Beds Medical/Surgical & Empty ICU/CCU Occupancy Beds Rate East Pasco Medical center 76 72 percent 21 Humana Hospital Dade city 102 47 percent 54 Riverside 88 53 percent 41 Community Hospital New Port Richey 112 Bayonet Point 200 58 percent 84 Carrollwood Community 120 49 percent 61 University Community Hospital 364 58 percent 153 Leaving aside the question of accessibility, there was no evidence that any of these empty hospital beds are inadequate or inappropriate or that they offer less than quality care. Accessibility. Land O'Lakes did not retain a travel time expert to testify at the final hearing. Instead, it retained the services of a Pasco County deputy sheriff, who testified on factual matters but gave no opinion. Deputy Sheriff Campbell used as a starting point in the Land O'Lakes area for his trips to various area hospitals a point near the back of the largest subdivision in Land O'Lakes, Lake Padgett Estates, approximately 7 to 8 minutes into the subdivision from the main highways he had to access for the trips. Even so, his trips to University Community Hospital in north Hillsborough County took very close to just 30 minutes in peak traffic within a few weeks before the final hearing in August 1986. Although winter traffic maybe somewhat heavier, the Land O'Lakes area should not be expected to be greatly influenced by the influx of "snowbirds" during the winter. In any event, Land O'Lakes offered no competent testimony to the average travel times on an annual basis on the routes Deputy Campbell took. Land O'Lakes offered absolutely no evidence as to the travel time to Carrollwood Community Hospital, which other evidence placed at an average of 20 to 25 minutes south of the intersection of Pasco County Road 54 and US Highway 41, the main intersection in Land O'Lakes. Deputy Campbell also did not drive to the new Countryside Hospital southwest of Land O'Lakes which probably is the closest hospital to one of the few substantial residential areas west of Land O'Lakes, Sierra Pines. Bi-County offered the testimony and opinions 05 a time travel expert. However, Bi-County's evidence reflected average travel times along pertient road segments in both directions, not average travel times just in the direction from Land O'Lakes to the area hospitals in question. Bi-County's expert relatively randomly drove all over Pasco and Hillsborough county at various times on various different days over a period of several years. He then accumulated his data to arrive at average times in both directions along certain segments of roadway. He could not testify to exactly when the various trips which made up segment averages were made and could not testify in which direction he traveled. It was impossible to test how fairly the road segment travel times were averaged. To simulate trips from the Land O'Lakes area to area hospitals, Bi- county's expert summed the roadway segment travel times and added what he called average delays for intersections and turns. This method further decreased the accuracy of the resulting travel times. Despite the weakness of Bi-County's evidence, even its evidence was clear that the Land O'Lakes area is not now more than 30 minutes travel time from a hospital under average travel conditions. Except for a few isolated complaints, there was no evidence of any sufficiently widespread complaints by patients in the Land O'Lakes area about the distance they have to travel to a hospital. Neither HRS nor the District 5 Local Health council has received any complaints about inaccessibility of the Land O'Lakes area to an acute care hospital. Most complaints were directed to the travel required for standard blood work and x-rays. But, being largely a bedroom community for people employed in Tampa, many Land O'Lakes residents are in the Tampa area during normal business hours in any event. In addition, carrollwood and an osteopath are planning a joint venture to open a medical clinic in Land O'Lakes which would make some of these type services available in Land O'Lakes. Neither Land O'Lakes nor Bi-County proved the population of the portion of the Land O'Lakes area more than 30 minutes average drive from a hospital, even assuming the accuracy of the average drive time evidence. The population in the Land O'Lakes area at this time is just approximately fifteen thousand. Despite testimony projecting the population in 1989 to be at incredibly higher levels, the population of the Land O'Lakes area in 1989 should not be expected to be more than twenty five thousand. The inflated projections assume rates of build-up of large developments of regional impact that are unreasonably high or, at best, speculative. Meanwhile, the approximate current population of the East Pasco subdistrict is approximately seventy three thousand. There was no evidence of projected East Pasco subdistrict population in 1989. If portions of the Land O'Lakes area are beyond 30 minutes average drive time from the hospital in 1989, they will be portions north of Pasco County Road 54. Yet there is evidence that there are now 2,000 homes in the Land O'Lakes area south of County Road 54 and 4500 homes north of it. There was no competent evidence to forecast the size of the population which might be more than 30 minutes from a hospital, even under the applicants' average drive time evidence. Probable Impact On Cost (Section 381.494(6)(c)12., Florida Statutes 1985). Due to the lack of numeric need for additional beds in District 5 or the East Pasco County subdistrict and the lack of proof of inaccessibility justifying 100 additional beds in the Land O'Lakes area, the granting of either the Land O'Lakes or the Bi-County application probably will result in unnecessary duplication of hospitals services. The probable impact of the unnecessary of duplication of hospital services referred to in the immediately preceding paragraph will be higher hospital costs charged in order to pay for the capital investment in the hospitals affected. In addition, 100 new beds in the Land O'Lakes area likely would result in lower occupancy rates in at least some of the area hospitals and a low occupancy rate at the proposed new Land O'Lakes hospitals. Currently occupancy rates already are quite low. See Finding Of Fact 39, above. A further reduction could adversely affect the financial viability of one or more of the area hospitals. Extremely low occupancy rates could also have the effect of lowering overall quality of patient care. First, efficiency and skill in caring for patients and performing hospital procedures is likely to go down if the frequency with which those services are performed declines enough. Second, as hospital profits decline, adjustments will have to be made as hospitals seek to maintain financial viability. The necessary adjustments are likely to cost the patient some degree of quality of care. Financial Feasibility (Section 381.494(6)(c)9., Florida Statutes 1985). Immediate Financial Feasibility. Both applicants, Land O'Lakes and Bi-county, have been able to persuade investment bankers that their proposed projects are worthy of a commitment to fund the cost of the projects. However, at this stage in the development of a new hospital, the investment banker's commitment has certain conditions. One of the conditions is that the borrower obtain a certificate of need and clear the detailed financial feasibility study performed by a major accounting firm. Therefore, the proof of immediate feasibility is contingent upon proof of long-term feasibility. Both applicants, Land O'Lakes and Bi-County, proved that they have or can borrow the capital necessary to pay for the cost of borrowing sufficient capital to fund the construction of the projects. Long-term Financial Feasibility. Land O'Lakes projects a $1,147,197 excess of total revenues over expenses in yea two of operation (1990). However, Land O'Lakes' projection is liberal on the revenue side and conservative on the expense side in several respects. On the revenue side, Land O'Lakes' utilization forecasts are generated using a use rate of 900 patient days per thousand population. This utilization rate is unreasonably high. A use rate of 800 is more reasonable. The use of the 900 patient day per thousand use rate inflates the excess of total revenues over expenses by approximately 11 percent or approximately $126,000 in year 2. Land O'Lakes used a speculative method for projecting the population in the Land O'Lakes area in 1990. Rather than using any officially published demographic projections of population by census tract or other similar geographic area, Land O'Lakes' expert projected population by counting residential units in permitted developments of regional impact, assuming 2.8 people per unit, and assuming an optimistic rate of build-up of the development. The projection method is speculative and unreasonable,, and Land O'Lakes' 1990 projection of thirty nine thousand people in the Land O'Lakes area probably is ten thousand or more too high. An over-estimate of this magnitude (approximately 12.8 percent or more) would result in erroneously inflated projected revenue of approximately $294,000 or more. Land O'Lakes also projects capturing 80 percent of the Land O'Lakes area patient base by year 2. The projected market share is probably approximately 12.5 percent too high. This over estimate would result in excess of total revenues over expenses being approximately $143,000 too high. On the expense side, it has been mentioned that the low staffing proposed for the Land O'Lakes Hospital is dependent upon the establishment of a relationship with University Community Hospital. If the relationship is not established, Land O'Lakes' cost could be under-estimated by approximately one million dollars due to under-staffing. Even with the UCH relationship, Land O'Lakes' proposed staffing seems low, being approximately 50 full-time equivalent positions (FTEs) lower than one would expect in a full-service, free- standing one hundred bed hospital. In addition, the cost of the Land O'Lakes project does not include the cost of a telephone system. There was no evidence as to the approximate cost of a telephone system or to the probable impact of that omission on Land O'Lakes' longterm feasible. Finally, Land O'Lakes' financial projections assume not-for-profit status in omitting approximately two hundred thousand dollars of state sales tax from the cost of equipment to be purchased. There was no evidence as to the impact of two hundred thousand dollars of additional capital cost on the project's long-term feasibility. The Bi-county application also projects break-even during year two of operations and projects net income of $1,138,600 in year 2. Bi-County's utilization forecasts are more reasonable than Land O'Lakes. Their major flaw is the assumption that a high district wide osteopathic use rate, influenced by osteopathic use in Pinellas county, should be applied to Pasco county. In addition, Bi-County's projected outpatient revenue of approximately $1,737,700 in year 2 would be difficult to achieve with only two surgery suites, as proposed in the Bi-County application. On the expense side, however, Bi-County seriously under-estimates the expenses necessary to generate the revenues forecast. Bi-county proposes a full-service, 100-bed, free-standing hospital with a 24 hour emergency room. (Bi-County also proposes an osteopathic internship program but does not propose to start the program within the first two years of operation.) Yet it proposes to staff the hospital with only 162 full-time equivalent positions (FTEs) in year two of operations, approximately 3.24 paid FTEs per occupied bed. This low staffing results in under-estimating expenses by approximately $620,000. In addition, Bi-County's application does not address how its financial feasibility would be affected by the contributions Bi-County would have to make to, and the payments Bi-County would receive from, the Florida Public Medical Assistance Trust Fund. Section 395.101, Florida Statutes (1985), requires hospitals to pay one and one half percent of their net operating revenue into the trust fund. Payments to hospitals from the trust fund are determined by a formula which measures the extent to which the hospital services the indigent population. There was no effort to forecast how the formula would apply to Bi- County. (In fairness to Bi-County, there also was no explicit evidence whether the Land O'Lakes application addresses these considerations.) Like the Land O'Lakes application, Bi-County's equipment costs assume not-for-profit status, saving approximately $175,000 in Florida sales tax. There was no evidence how an additional $175,000 in capital cost would affect the long-term financial feasibility of Bi-County's application in the event Bi- County became a for-profit organization. Finally, Bi-County's application does not take into consideration attorneys' fees that will have to be expended in obtaining underwriting for the project or approximately 15 to 18 thousand dollars of attorneys fees for the certificate of need litigation involved in this case. There was no evidence how the omission of those costs might affect the long-term financial feasibility of the Bi-County proposal. As a result of the extent to which the applicants' net income for year 2 of operations has been over-estimated, and the extent to which questions concerning the applicants' ability to achieve even that much net income in year 2 of operations, neither applicant proved that their projects are financially feasible in the long term. Probably Economics And Improvements From Joint, Corporative, Or Shared Health Care Resources (Section 381.494(6)(c)s., Florida Statutes 1985). If the Land O'Lakes/UCH relationship is established, the Land O'Lakes application has the opportunity for significant economics and improvements in service. Through use of UCH ancillary and support services, Land O'Lakes would be able to operate with fewer full-time equivalent positions on its staff. UCH management of Land O'Lakes could result in significant economies of scale which could redound to the benefit of the patient of one or both of the facilities. It even is possible that Land O'Lakes could become a virtual satellite of UCH, with the attendant benefits. However, it also is possible that acute emergency patients from Land O'Lakes will not benefit from the Land O'Lakes Hospital if attempted economies require such patients to continue to be transported to UCH because certain major emergencies are designed not to be handled at Land O' Lakes. similarly, Bi-County is discussing a management agreement with BAMI which could result in some of the same economies of scale. It is possible that Bi-County and its patients could benefit from savings in the cost of management through use of BAMI's central accounting and other management functions and from BAMI's ability to obtain hospital supplies, equipment and pharmaceuticals at discounts. Need For Research And Educational Facilities (Section 381.494(6)(c)7., Florida Statutes 1985). UCH is a teaching hospital. However, the Land O'Lakes application does not in any way base need on the potential for use of Land O'Lakes as a research or educational facility for UCH. There was no evidence in that regard. Bi-County does propose osteopathic internship programs. However, there was no persuasive proof of a need for osteopathic internship programs in Land O'Lakes or District 5. Florida is training 5.3 percent of the nation's osteopathic students but only 2.5 percent of the allopathic students in the U.S. District 5 has the largest concentration of osteopathic hospitals and osteopathic internship program- in the State of Florida. There are 15 osteopathic hospitals in Florida, 7 of which have internship programs. 4 of those hospitals, and 2 of the internship programs, already are located in District 5. In addition to the absence of proof, there was no evidence or argument on the parts of the Bi-County application proposing an internship program. Doctor Faulkenberg, one of Bi-County's principals, testified that there were no plans for an internship program within the first 2 years of operations. Bi- County did not provide much assurance when or if an internship program would be instituted. In any event, Bi-County provided no more assurance than the evidence that Carrollwood Community Hospital plans an osteopathic internship program within the next year or two provided assurance that that program would in fact be established. Other Criteria. Availability And Adequacy Of Non-Hospital Services (Section 381.494(6)(c)4., Florida Statutes 1985). Some hospital services can be replaced with outpatient care, ambulatory surgery and home care services. Carrollwood Community Hospital and a Land O'Lakes osteopath are now embarking on a joint venture to open a medical clinic in Land O'Lakes. In addition, an ambulatory surgery facility is about to open in Land O'Lakes. These facilities can offer some outpatient surgical procedures and minor emergency treatment. Generally, the applications in this case do not rely upon the provision of those services to justify need. However, Land O'Lakes only proposes emergency room service part of the time, relying on UCH to cover emergencies 24 hours, and does not propose full ancillary support and services, again in reliance on UCH. To that extent, the existing UCH services are an alternative to new construction in Land O'Lakes. Need Not Reasonably And Economically Accessible In Adjoining Areas (Section 381.494(6)(c)6., Florida Statutes 1985). There was no evidence of any need in District for special equipment and services to be provided by either Land O'Lakes or Bi-County which are not already reasonably and economically accessible in areas adjoining District 5 special Needs And circumstances Of Health Maintenance Organizations (Section 381.494(6)(c)10., Florida statutes 1985). There was no evidence of any special needs or circumstances of health maintenance organizations which would be pertinent to either the Land O'Lakes or the Bi-County application. Provision Of Substantial Services To Individuals Not Residing In District 5 (Section 381.494(6)(c)11. Florida statutes 1985). There was no evidence that either the Land O'Lakes application or the Bi-County application would provide a substantial portion of services or resources to individuals not residing in District 5 or that there is a need for a hospital in Land O'Lakes for this purpose. Energy And Cost Efficiency (Section 381.494(6)(c)13., Florida Statutes 1985). The evidence sufficiently proved that both the Land O'Lakes application and the Bi-County application proposed costs and methods of construction which are reasonably energy and cost efficient. The evidence did not suggest that any alternative methods of construction are available that would be substantially less costly or more effective. Required Findings (Section 381.494(d), Florida Statutes 1985). It cannot be found that less costly, more efficient, or more appropriate alternatives to the inpatient services proposed by Land O'Lakes and Bi-County are not available or that the development of such alternatives have been studied and have been found not practicable. Since there is no numeric need for 100 additional beds located in Land O'Lakes and area hospitals are running occupancy rates well below the 80 percent standard, utilization of existing hospital beds is a less costly, more efficient and more appropriate alternative which is practicable. It can be inferred from the evidence that existing inpatient facilities providing inpatient services proposed by Land O'Lakes and Bi-County are being used in an appropriate and efficient manner except that those facilities are running low occupancy rates. Alternatives to new construction for example modernization or sharing arrangements have been considered but are not practicable in relation to the Land O'Lakes and Bi-County applications. The evidence did not prove that patients will experience serious problems in obtaining inpatient care of the type proposed in the absence of one of the proposed new services. Balanced Consideration. After giving a balanced consideration to all of the pertinent statutory and rule criteria, it is found that there is no need or justification for either the Land O'Lakes application or the Bi-County application. Of all the criteria, the most significant was geographic accessibility. The applicants did not prove that accessibility considerations justify the construction of a 100-bed hospital in Land O'Lakes.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order denying both the application of Land O'Lakes Hospital, Inc., in Case No. 84-1509 and the application of Bi-County Community Hospital, Inc., in Case No. 84-1900. DONE AND ORDERED this 2nd day of January 1987 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 84-1509 AND 84-1900 These rulings are made to comply with Section 120.59(2), Florida Statutes (1985). Bi-County's Proposed Findings of Fact. 1-4. Accepted and incorporated. Accepted but unnecessary. Rejected as contrary to the greater weight of the evidence and facts found. 7-8. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence and facts found. (Carrollwood is "osteopathic.") Accepted but unnecessary. Rejected as contrary to the greater weight of the evidence and facts found. (Harborside is "osteopathic.") Conclusion of law. Subordinate. Rejected as contrary to the greater weight of the evidence and facts found. Accepted that there would be no difficulty staffing; rejected that osteopaths in Pinellas would make it particularly "conducive" for Bi-County. Rejected as contrary to facts found. Accepted but unnecessary. Land O'Lakes Proposed Findings of Fact. 1. Accepted and incorporated. 2-3. Unnecessary. 4. Accepted and incorporated. 5 First sentence, accepted; second sentence, contrary to the greater weight of the evidence; third sentence, subordinate. Not proved. Proved only to the extent that it becomes a satellite of UCH. Conclusion of law. Rejected as contrary to facts found. Rejected as contrary to the greater weight of the evidence. Accepted. Subordinate. Not proved; not particularly relevant. Accepted but unnecessary. Subordinate to facts alleged but not proved. Accepted but unnecessary. 17.-18. Subordinate to facts alleged but not proved. Rejected as contrary to facts found. Subordinate. Subordinate. Rejected as contrary to facts found. Accepted and incorporated. Rejected as contrary to facts found since short-term financing is dependent on long-term feasibility. Rejected as being a summary of some of the evidence, not a finding. Rejected as not proved. Accepted but unnecessary. Accepted and incorporated. Accepted but unnecessary. Subordinate. Accepted but not necessary. Accepted with qualifications reflected in facts found. Rejected. There is no Pasco subdistrict. The total East and west Pasco is 88. Rejected. Underutilization proved; inaccessibility not proved. Accepted, assuming UCH involvement. Rejected as contrary to facts found. Accepted and incorporated. Cumulative. Rejected as contrary to the greater weight of the evidence. Accepted and incorporated. 41.-42. Subordinate to facts found. Rejected. There is some osteopathic need in Pasco. Accepted except for the last sentence, which is rejected. Subordinate. Accepted but subordinate and unnecessary. Rejected as summary of some evidence, not a finding. Subordinate to facts found; unnecessary. Accepted and incorporated. Subordinate to facts found. 51.-52. Argument. 53.-54. Accepted but unnecessary. Accepted and incorporated. Incomplete and incomprehensible. 57.-58. Subordinate to facts found. Argument. Second and third sentences are accepted but not necessary; the rest is cumulative. Accepted but unnecessary. First sentence accepted and incorporated; second sentence is accepted but unnecessary. Accepted and incorporated. Bi-County's financial feasibility was not proved. Accepted and incorporated in part, subordinate in part. Accepted but unnecessary. Conclusion of law. Irrelevant. 67.-68. Rejected as contrary to the greater weight of the evidence. 69. Conclusion of law. 70.-72. Cumulative. 73. Rejected as contrary to facts found. HRS/Riverside/Harborside Joint Proposed Findings of Fact. 1-3. Accepted and incorporated. Subordinate to facts found. Unnecessary. 6-7. Accepted but unnecessary. 8.-9. Accepted and incorporated. 10. Accepted but unnecessary. 11.-12. Accepted and incorporated except where subordinate and unnecessary. 13.-20. Accepted but unnecessary. 21. Accepted and incorporated. 22.-23. Accepted but unnecessary. 24. Accepted and incorporated. 25.-29. Accepted but unnecessary. Accepted and incorporated. Accepted but unnecessary. Accepted and incorporated. Conclusion of law. Accepted and incorporated. Conclusion of law. 36.-39. Accepted and incorporated. 40. Accepted and incorporated except where subordinate. 41.-44. Subordinate to facts found. 45. Accepted and incorporated. 46.-48. Subordinate to facts found. 49. Accepted Incorporated as to Riverside; unnecessary as to Harborside. 50.-51. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. Subordinate to facts found. (Land O'Lakes FTEs are adequate assuming the UCH relationship.) 34 54. Rejected as contrary to facts found. Accepted but subordinate and unnecessary. Cumulative. 57.-59. Accepted but subordinate and unnecessary. 60. First sentence accepted but subordinate and unnecessary. Second sentence rejected as contrary to the greater weight of the evidence. 61.-63. Subordinate and unnecessary. 64.-69. Accepted and incorporated. Accepted but subordinate and unnecessary. Cumulative. Accepted and incorporated. Accepted and incorporated except where subordinate. 74 First sentence unnecessary; second sentence accepted and incorporated. 75. Accepted and incorporated except the implication that "specificity" and exact "accuracy" is necessary at this stage of a project is rejected as contrary to the greater weight of the evidence. 76.-77. Subordinate and unnecessary. 78. Rejected as contrary to facts found. 79.-81. Rejected as contrary to the greater weight of the evidence and facts found. Subordinate to facts found. Accepted and incorporated. 84.-86. Subordinate to facts found. 87.-88. Accepted and Incorporated. Rejected as contrary to facts found. Accepted that 80 percent is too high, but 50 percent-60 percent is too low. First sentence rejected as contrary to the greater weight of the evidence; second sentence accepted and incorporated. 92.-95. Subordinate to facts found. 96.-97. Cumulative. Rejected as contrary to the greater weight of the evidence. Unnecessary. Accepted and incorporated. Accepted but unnecessary. See 75, above. Unnecessary. Subordinate to facts alleged but not proved. 105.-106. Subordinate to facts found. 107.-1OB. Rejected as contrary to the greater weight of the evidence. 109.-110. Cumulative. Some patients would come from outside Land O'Lakes, but not as many as Bi-County projects. Rejected as contrary to facts found. Rejected as contrary to the greater weight of the evidence. 114.-116. Subordinate to facts found. 117. First sentence subordinate to facts found; second sentence rejected as contrary to facts found. 118.-119. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. Accepted but unnecessary. 122.-123. Accepted and incorporated. 124.-129. Accepted but unnecessary. 130.-132. Accepted and incorporated. Accepted but unnecessary. Accepted and incorporated. Accepted but unnecessary. Cumulative. Accepted and incorporated to the extent necessary. Subordinate to facts found. 139.-140. Accepted and incorporated to the extent necessary. First sentence unnecessary; second cumulative. Rejected as contrary to facts found. Cumulative. Accepted and incorporated. First sentence cumulative; rest subordinate to facts found. 146.-147. Accepted and incorporated. D. HRS' Supplemental Proposed Findings Of Fact. Accepted and incorporated. Accepted and incorporated. Said another way, applicants did not prove inaccessibility. Accepted. Incorporated in large part. Accepted and incorporated. Accepted but unnecessary. Cumulative. Accepted. Incorporated to the extent necessary. Accepted and incorporated. Unnecessary. Accepted but unnecessary. 11.-12. Accepted and incorporated. Unnecessary. Subordinate to facts found. Accepted and incorporated to the extent necessary. Accepted and incorporated. Irrelevant. 18.-19. Subordinate to facts found. 20.-21. Accepted and incorporated. First sentence, conclusion of law; rest, cumulative. Accepted but not necessary. Accepted but not necessary. Conclusion of law and unnecessary. First sentence, conclusion of law; rest, subordinate. Accepted incorporated in part; in large part, subordinate. Subordinate to facts found. See 27 above. 30.-33. Subordinate to facts found. 34. Accepted but not necessary. 35 (a) Subordinate to facts found and unnecessary; (b) accepted in part, but rejected in part as conclusion of law and unnecessary; (c)-(f) subordinate to fact found; Accepted and incorporated to the extent necessary. Cumulative and subordinate. Rejected, not proved. Accepted. Incorporated in part; in part subordinate. Subordinate to facts found; unnecessary. COPIES FURNISHED: Kenneth F. Hoffman, Esquire Harold F. X. Purnell Oertel & Hoffman, P. A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Charles D. Hood, Esquire Post Office Box 191 Daytona Beach, Florida 32015 Douglas L. Mannheimer, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302-3300 Leonard A. Carson, Esquire Bruce A. Leinback, Esquire Carson & Linn, P. A. Mahan Station 1711-D Mahan Drive Tallahassee, Florida 32308 William Page, Jr. Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steven W. Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301
Findings Of Fact South Dade Osteopathic Medical Center, Inc., d/b/a Suburban Medical Center is an outpatient office facility in South Dade County, Florida. Suburban Medical Ambulatory Surgical Center (the "Am/Surg Center") is a licensed ambulatory surgical center which is operating out of the same building. (Together these entities will hereinafter be referred to as the "Outpatient Center.") The Outpatient Center currently provides outpatient services including ambulatory surgical, diagnostic, radiologic, and laboratory services. The existing building which houses the Outpatient Center was completed in approximately 1980. The building has two floors. The AM/Surg surgical center occupies the second floor of the building. The Outpatient Center currently has approximately 6,000 open patient files and has serviced approximately 12,000 patients since it opened in or about 1980. The license to operate the AM/Surg Center was obtained in approximately 1988. The Outpatient Center operates as an osteopathic facility. However, it does have allopathic physicians on staff. Dr. Jules G. Minkes is an osteopathic physician who owns and controls the Outpatient Center. Dr. Minkes is also the sole owner of Suburban Medical Hospital, Inc. ("Suburban" or the "Applicant"), the applicant in this case. On March 29, 1989, Suburban filed an application for a Certificate of Need to convert the existing Outpatient Center into a 36-bed osteopathic acute care hospital. The Application was assigned CON #5868. The Executive Summary contained in the Application summarizes the project as follows: The proposal is to convert the 26 ambulatory surgical recovery beds into hospital beds. The surgi-center and 26 beds are on the second floor of the facility which was constructed in accordance with hospital code specifications. Thus, conversation of the center into a hospital will primarily involve certain struc- tural changes on the first floor of the center to meet code specifications. The project will also require additional construction for ten ICU/CCU beds, a cafeteria, and certain engi- neering equipment. The Center will continue to offer its current out-patient services. The evidence at the hearing created some confusion and questions as to the Applicant's intended operation of the proposed project. At the hearing, Dr. Minkes testified that the AM/Surg Center will continue to exist and operate in the same physical structure as the proposed hospital. The plan for continuing the AM/Surg Center is not detailed in the Application. It is not clear where the ambulatory surgical center would be located in the converted facility and what equipment and/or space would be shared. Furthermore, it is not clear to what extent the revenues and expenses for the ambulatory surgical center are included within the projections set forth in the Application. It should be noted that, under existing law, an ambulatory surgical center cannot be part of a hospital. See, Section 395.002(2)(a), Florida Statutes (1989). (This issue is discussed in more detail in the Conclusions of Law below.) As noted in Gulf Coast Hospital v. Department of Health and Rehabilitative Services, 424 So.2d 86 (Fla. 1st DCA, 1982), osteopathy and allopathy are two primary and separate schools of medicine which differ substantially in philosophy and practice. Doctors of medicine are licensed under Chapter 458, Florida Statutes. Osteopathic physicians are licensed under Chapter 459, Florida Statutes. The practice of medicine is defined in Section 458.305, Florida Statutes as the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition." Allopathy is defined in Webster's Third New International Dictionary as "a system of medical practice that aims to combat disease by use of remedies producing effects different from those produced by the special disease treated." 424 So.2d at 89 n.8. Section 459.003(3), Florida Statutes, (1989) defines osteopathic medicine as the "diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or any other physical or mental condition which practice is based in part upon educational standards and requirements which emphasis the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health." Osteopathic medicine places great emphasis upon the health of the musculoskeletal system as a condition of healing, and employs techniques of manipulation of muscles and joints in the process of therapy for illness. As explained by Dr. Minkes, osteopathic medicine is a distinct school of practice that embodies a philosophy based on a holistic approach that integrates the biomechanical and structural aspects of the body's function in all aspects of the functioning of the body. Dr. Minkes testified that it is his intention to seek accreditation for the proposed facility from the American Osteopathic Association and to operate the proposed hospital as an osteopathic hospital. Suburban intends to locate its proposed facility in conjunction with the existing Outpatient Center at the intersection of U.S. 1 and S.W. 97th Avenue. This location lies within Subdistrict 4 of HRS Health Planning District XI near the dividing line between Subdistricts 4 and 5. Baptist and South Miami are general acute care hospitals located in southern Dade County, Florida. The primary service area proposed by Suburban overlaps the primary service areas of Baptist and South Miami. Suburban's proposed service area is "bounded by S.W. 88th Street (Kendall Drive) and Homestead, Florida City and the upper Keys on the north and south; Biscayne Bay and the Everglades on the east and west: Subdistrict 4 from Kendall Drive south, subdistrict 5a, northern subdistrict 5(b)." There is an existing osteopathic hospital in District XI. That hospital, Westchester General Hospital ("Westchester"), is also located in Subdistrict 4. Currently, Westchester is licensed for 100 beds. It is an approved osteopathic teaching hospital and intern training hospital. Until 1989, there was another osteopathic hospital located in District XI. Southeastern Medical Center ("Southeastern") was a 224 bed facility that was approved for delicensure by HRS as of May 9, 1989. Southeastern was located in North Miami Beach Florida, close to the Broward County line. In 1983, South Dade Osteopathic Medical Center, Inc., one of the corporations owned and controlled by Dr. Jules Minkes, filed a Certificate of Need Application for a 150 bed osteopathic teaching hospital at the same site as the current Suburban proposal. The prior application was subsequently amended to 100 beds. After HRS denied that prior application, a hearing was held leading to the entry of a Final Order dated October 11, 1985 denying the application. See, South Dade Osteopathic Medical Center, Inc., d/b/a Suburban Medical Center vs. DHRS, 7 FALR 5686. (This case will hereinafter be referred to as the "South Dade" case.) In denying the prior application for a 100-bed osteopathic hospital, the Hearing Officer in the South Dade case noted the existence of the two osteopathic facilities in the district (Westchester and Southeastern) and found their occupancy rates had been significantly lower than capacity in the immediate years preceeding that application. He also noted that those occupancy rates were very similar to the occupancy rates for allopathic hospitals in the area. In 1981, the occupancy for all acute care hospitals in District XI was 67.4 percent. The occupancy rate for Westchester was 67.8 percent and Southeastern's occupancy rate was 61.3. In 1982, the overall occupancy for all District XI hospitals was 66.6 percent, Westchester's occupancy dropped to 65.8 percent and Southeastern's occupancy rate dropped to 58.4 percent. The Hearing Officer in the South Dade case noted that, in 1984, the occupancy rate for osteopathic beds had decreased even further. Based upon this evidence, the Hearing Officer found that there was an excess number of osteopathic beds in District XI in the years preceding that hearing. In the Recommended Order denying South Dade's application, the Hearing Officer noted: ...The cause of these lower use rates have been causes that apply equally to osteopathic and allopathic hospitals, thus leading to the conclusion that the lack of need shown by the above data will probably persist for several years into the future. All acute care hospitals have lost patients due to growth of alternatives to inpatient care, such as nursing homes, rehabilitation centers, outpatient surgical centers, and the like. Additionally, medicare policy changes have reduced the length of stay at all acute care hospitals. There is no compelling evidence on this record that osteopathic hospitals will not suffer from diminished need from these market forces in the same way that allopathic hospitals have suffered...7 FALR at 5698. The South Dade Recommended Order predicted that the lack of need for new acute care facilities of any affiliation was destined to continue for several years into the future. That prediction has proven to be correct. The evidence in this proceeding demonstrated that many of the same forces that caused reduced occupancy at both allopathic and osteopathic hospitals in 1984 continue to influence occupancy at both allopathic and osteopathic facilities. Without question, the overall occupancy rates and number of patient days in District XI acute care facilities has been declining significantly since 1984. The average annual occupancy rate for all acute care facilities in District XI was approximately 51 percent in 1988. The occupancy in Dade County alone was approximately 47 percent. These figures are well below the 80 percent efficiency standard established by HRS for an acute care facility. This decline can be attributed to a number a factors including the development of diagnostic related groups ("DRG's") for Medicare reimbursement. Osteopathic facilities have not been immune to this decline. Indeed, since 1984, the occupancy for the two existing osteopathic facilities in District XI decreased at a significantly greater rate than occupancy in allopathic facilities. In 1984, Westchester's occupancy was 46.7 percent. Westchester's average occupancy in 1987 was approximately 30.5 percent. By the end of the calendar year 1988, that occupancy had declined to 27 percent. Similarly, Southeastern Medical Center experienced declining occupancies from 1984 until its closure. Occupancy at Southeastern in 1984 was approximately 60 percent. Southeastern's average utilization rate for 1988 was only 20.3 percent. These trends are consistent with the statewide occupancy of osteopathic facilities which has been dropping at a rate equal to, if not greater, than, that of allopathic facilities. Suburban attempted to explain the closure of Southeastern through the testimony of several witnesses who were affiliated with that facility. Petitioner contends that the decline and eventual closing of Southeastern was the result of a conscious decision on the part of the owner of that facility, AMI, to focus its resources and efforts on the development of a nearby allopathic hospital which it also owned. While management decisions and/or problems may have contributed to the declining occupancy and ultimate closure of Southeastern, it is clear that the facility was also impacted by many of the factors that have contributed to the overall decline in occupancy at acute care facilities throughout the District. Based on the evidence presented at the hearing, it is concluded that there was an excess number of licensed osteopathic beds in the District at least prior to the time of the delicensure of Southeastern. With the delicensure of Southeastern, there are now 100 licensed osteopathic beds in the District, all of which are located at Westchester in the same Subdistrict as the proposed project. Petitioner presented extensive testimony regarding the perceived inadequacy of Westchester to meet the need for osteopathic services in the District. That testimony indicates that some osteopathic physicians are unhappy with the management philosophy of Westchester and they feel they are unable to provide quality osteopathic care in that facility. Most of the complaints about the care and treatment at Westchester were voiced by Dr. Minkes and Dr. Hershmann. Both of these physicians are expected to have a significant financial investment in the proposed facility. Several osteopathic physicians who do not have an interest in the proposed project testified that they did not have a problem with the quality of care at Westchester. Thus, while there may be some minor and/or individual problems with Westchester, the evidence was not sufficiently compelling to establish that the occupancy problems at Westchester are due to problems and/or inadequacies that facility. In other words, while some osteopathic physicians may prefer to treat their patients in a new, more modern facility, Westchester has not been shown to be so inadequate that it should be replaced or supplemented by the proposed project. The HRS Office of Licensure and Certification has not received any complaints against Westchester regarding the facility's physical plant or quality of care. Furthermore, Westchester's license is in good standing and it is accredited by the JCAH and the AOA. Petitioner presented hearsay evidence suggesting that a number of the beds at Westchester are not being utilized because of space limitations and that a number of the beds are contained in undesirable four bed rooms. As a result, Petitioner suggests that Westchester's functional bed count should be considered in the neighborhood of 50 rather than 100 beds. If this argument is accepted, Westchester's occupancy rates would not appear nearly as dismal. However, the evidence was insufficient to justify this conclusion. Westchester is presently licensed for 100 beds and no evidence was presented to establish that the hospital is not trying to fill all those beds. Petitioner also contends that Westchester has ceased functioning as a distinct osteopathic facility. The evidence was insufficient to support this conclusion. The testimony from several osteopathic physicians indicated that they still admit patients to Westchester. Similar contentions regarding Westchester were made in the South Dade case. In that earlier proceeding, the Hearing Officer found: ...While the foregoing is evidence that there are problems at Westchester for the physicians who testified, these problems were not proven with sufficient specificity and have not been shown to be such for this Hearing Officer to conclude that Westchester is so inadequate that it should be replaced by the hospital proposed by Petitioner. Nor is the evidence sufficient for the Hearing Officer to conclude that the low use rate at Westchester is due solely to inadequate health care at Westchester. As stated above, the record evidence indicates that the use rate at Westchester is quite similar to the use rates at allopathic hospitals in the District, which is consistent with the conclusion that the lower use rate at Westchester is caused by the same diminished need. Further, the use rate at Westchester is quite similar to the use rate at Southeastern Medical Center. On this record, there is no indication that Southeastern Medical Center is other than an adequate health care facility. The similarity in use rates, therefore, leads one to the conclusion that the use rate at Westchester is driven primarily by the same force that drives the use rate at Southeastern; lack of need or demand by osteopathic patients. 7 FALR 5702 The evidence in this case was similarly insufficient to attribute the low occupancy at Westchester to other than market forces. While the low occupancy rates at Westchester may be due in part to problems with that facility and reluctance on the part of some osteopathic physicians to utilize that hospital, the evidence indicates that both Southeastern and Westchester have experienced declining enrollments for many of the same reasons that all acute care facilities in District XI have. The evidence did establish that osteopathic physicians experience some difficulties in practicing osteopathy in allopathic facilities and that the facilities of many allopathic institutions are not conducive to osteopathic treatment. Most physical therapists at allopathic facilities are not trained to provide osteopathic treatment. In addition, few osteopathic specialists have obtained staff privileges at allopathic facilities. On the other hand, it appears that many of the difficulties and barriers that osteopathic physicians have historically experienced are being eroded. Virtually all of the osteopathic physicians who testified had staff privileges at several allopathic facilities and regularly admit patients to those facilities. Several of the osteopathic physicians who testified are practicing in partnership with or in association with allopathic physicians. Suburban presented the testimony of several osteopathic physicians who testified that additional osteopathic hospitals are needed in the District in order to enhance the survivability of osteopathy as a distinct approach to health care. Such facilities enable osteopathic physicians to learn and practice together and consult with osteopathic specialists in a forum that is supportive of osteopathy. The evidence established that approval of the proposed facility would, to some degree, enhance the survivability of osteopathy as a distinct and separate alternative treatment mode in the District. However, no evidence was presented to demonstrate that individuals seeking osteopathic care are currently being denied such services. While a significant number of osteopathic physicians have indicated an intention to use the proposed facility if it is approved (even though many of them do not use the existing osteopathic facility in the District, Westchester,) the evidence was insufficient to establish the need for an additional 36 osteopathic beds in the District. Moreover, as discussed in more detail below, the evidence did not establish that Suburban's Application satisfies the remaining criteria necessary for the issuance of a CON. Section 381.704(1), Florida Statutes (1989), recognizes that the review of CON applications includes consideration of the state and local Health Plans. Neither the Local Health Plan nor the State Health Plan specifically address osteopathic facilities. Therefore, Petitioner contends that the State and Local Health Plans are largely irrelevant to this case. This legal argument is addressed in the Conclusions of Law below. The Local Health Plan for District XI is prepared by the Health Council of South Florida. Linda Quick, Executive Director of the Health Council of South Florida testified that the Health Council does not support the construction of any new hospitals in the District. The Health Council opposes the construction of any new hospitals regardless of whether they are osteopathic or allopathic. The Health Council has prepared a booklet entitled District XI CON Allocation Factors Report for 1989. That booklet does not contain any CON allocation factors for osteopathic facilities. There are approximately thirty-two acute care facilities in the District. Utilizing the state's bed need methodology, the Health Council has concluded that there are nearly two thousand too many acute care hospital beds in the District through 1993. This determination does not differentiate between osteopathic and allopathic acute care beds. Because of the existing excess number of beds in the District, Linda Quick emphasized the need to fully explore alternatives to the construction of a new acute care facility. Such alternatives could include the acquisition of an existing facility, establishing a working relationship with an existing provider, increasing utilization at Westchester or arranging a joint venture with a licensed hospital. The Petitioner's failure to fully explore these alternatives weighs against approval of Suburban's Application. The purpose of the Local Health Plan is to describe the existing health care system, the existing population and its health status. The Plan also establishes goals and objectives for the growth, development and change of the local health system. The Local Health Plan sets forth general criteria and policies regarding health planning for services to individuals within the area. One of those goals is for the District to have a licensed bed capacity of no more than five beds per one thousand population by 1993. The State Health Plan calls for an even lower ratio. Currently, the ratio of acute care beds to the population is well in excess of five per one thousand. Approval of Suburban's Application would increase the number of acute care beds and, therefore, would be contrary to this goal of the Local Health Plan. However, it should be noted that this goal does not differentiate between osteopathic and allopathic acute care beds. Another pertinent goal of the Local Health Plan for District XI is to make services in the community geographically and financially accessible to all segments of the resident population. Because the proposed facility is located in the same Subdistrict as Westchester, it does not appear that the proposed project would significantly improve geographic accessibility to osteopathic services. Similarly, because of the large number of hospitals in the District, it does not appear that this proposed project would measurably improve the accessibility to acute care services. Section 381.705, Florida Statutes, sets forth the specific criteria to be considered in the review of a CON application. The first criteria to be considered under Section 381.705(1)(a) is the need for the proposed project in relation to the State and Local Health Plans. In assessing need, it is necessary to also consider the provisions of Section 381.713(2), Florida Statutes which provides that the need for an osteopathic hospital "shall be determined on the basis of the need for and availability of osteopathic services and osteopathic acute care hospitals in the District..." The Application cites the First District Court of Appeal's decision in Gulf Coast Hospital v. Department of Health and Rehabilitative Services, 424 So.2d 86, for the assumption that approximately ten percent of the population of the United States prefers to be treated by osteopathic physicians. Based upon this assumption and the most recent population estimate for Dade County (1.829 million as of 1987), Petitioner suggests in its Application that there should actually be 750 osteopathic beds in Dade County. No evidence was presented to support the assumption that ten percent of the population in the District prefers to be treated by osteopathic physicians. Indeed, the evidence of occupancy at osteopathic facilities in Dade County indicates that the ten percent assumption is vastly overstated. In 1985, only 2.4 percent of the total patient days for all hospitals in District XI were in osteopathic facilities. In 1986, that number decreased to 2.1 percent and in 1987 it decreased to 1.8 percent. These rates coincide with the declining occupancy rates at the existing osteopathic facilities in the District during this period. These facts indicate that the assumption that ten percent of the patients prefer osteopathic facilities is not accurate, at least in District XI. HRS has not adopted a rule or an official methodology to calculate osteopathic bed need. The need methodology set forth in Rule 10-5.011(1)(m) for calculating acute care bed need is not applicable to osteopathic facilities. The Application does not present any methodology to demonstrate osteopathic need in the District. At the hearing in this case, Suburban attempted to demonstrate the need for additional osteopathic beds in Dade and Monroe counties through the testimony of Dr. Howard Fagin, who was accepted as an expert in health planning, bed need methodology development and health economics. Dr. Fagin presented several calculations of "need" which Petitioner contends support the conclusion of need set forth in the Application. None of Dr. Fagin's calculations were included in the Application. Dr. Fagin's calculations used current hospital and physician utilization data and, by applying certain assumptions, attempt to project osteopathic need and/or demand in the District for five years into the future. In other words, Dr. Fagin attempted to develope a methodology specifically geared to calculate osteopathic need over a five-year planning horizon. Dr. Fagin set forth five different approaches for calculating osteopathic need. Most of these approaches had been considered and rejected by HRS in connection with other applications for osteopathic facilities. Intervenors and Respondent have painstakingly pointed out the deficiencies in Dr. Fagin's testimony. While their criticisms have merit, the shortcomings in the methodologies submitted by Dr. Fagin must be considered in the context of Section 381.713(2), Florida Statutes, and the lack of an approved and/or workable methodology for determining osteopathic need. It does not appear that there is a reasonably identifiable osteopathic unit of service for planning purposes. It is extremely difficult, if not impossible, to measure osteopathic need in accordance with the usual "normative" methodologies used to determine need for discreet services. However, the burden is on the Applicant to overcome these obstacles and present persuasive evidence of the need for the proposed project. Insufficient evidence was presented to accomplish this task. Intervenors and Respondents suggest that only those patients who receive osteopathic manipulative therapy during their stay in the hospital should be considered in determining "osteopathic patient days." They contend that such manipulative therapy is the only specific procedure measurable and monitored as distinctly osteopathic. The Hospital Cost Containment Board's data indicates that only two percent of the patients discharged from "osteopathic" hospitals received osteopathic manipulative therapy during their hospital stay. However, the evidence established that osteopathic care includes more than manipulative therapy. Thus, utilizing this unit of measure would significantly understate osteopathic need. All of the projections prepared by Dr. Fagin rely upon an assumption that "osteopathic patient days" are an identifiable unit of service which can be distinguished from allopathic patient days. There are several problems with this assumption. Dr. Fagin obtained the number of "osteopathic patient days" by simply taking the number of days in osteopathic designated facilities. However, not all patient days in an osteopathic hospital are "osteopathic patient days." There are clearly a number of allopathic physicians who admit and treat patients in osteopathic facilities. Indeed, at some osteopathic facilities, allopathic physicians constitute a majority of the staff. While Dr. Fagin contends that the number of allopathic admissions to osteopathic hospitals is a "wash" with the number of osteopathic admissions to allopathic hospitals, no evidence was presented to support this assumption. Patient days is a generally recognized unit of service for inpatient care and acute care beds. Typically, patient days are broken down into discreet units of service, i.e., obstetrical, psychiatric, pediatric, etc., relating to the underlying epidemiology of the population. Osteopathy is an approach to the practice of medicine rather than a specific clinical service. Osteopathy can not be measured in the same manner as a clinical service. Mixed staff hospitals and the inability to isolate a discreet unit of measurement such as an osteopathic patient day make it virtually impossible to quantify need for an osteopathic facility utilizing a traditional "normative" approach to planning. A "normative" approach provides a projection based on an estimate of the number of units of service or resources that should be in place. It is based on a number of unit of services related to an underlying need of the population. Dr. Fagin's forecast of "osteopathic patient days" includes the "need" for osteopathic beds to provide patient services in several specialized areas of care which will not be offered in the proposed project. For example, the proposed project will not offer obstetrics, psychiatry, pediatrics, tertiary care services, or cardiac catheterization. "Osteopathic patient days" as utilized by Dr. Fagin includes all of these services because he did not isolate those services that will be offered by the proposed facility. At best, Dr. Fagin's calculations show how many beds would be utilized at an osteopathic hospital if it achieved the average utilization of other osteopathic facilities. There was no showing that the average utilization at other osteopathic hospitals is appropriate or reflective of need. Thus, these methodologies do not measure need or demand for osteopathic services in the true sense of the word. In making his calculations, Dr. Fagin relied upon population figures published by the Executive Office of the Governor on May 15, 1989. The Intervenors and Respondent objected to the testimony and contended that only the population projections which had been released at the time the Application was filed could be used in connection with this Application. The earlier projection figures were released on January 1, 1989. These objections are discussed in more detail in the Conclusions of Law below. The evidence indicates that there would be no material changes in Dr. Fagin's conclusions regardless of whether the January 1st or May 15th projections are used. From 1980-1989, District XI experienced a population growth of approximately 14.6 percent and from 1990 through 1994 the projected increase is 22.1 percent. Thus, the population in the District is growing significantly. There is less than a one percent difference in the January and May population projections. In addition to the general limitations set forth above, there are several specific flaws contained in certain of the calculations performed by Dr. Fagin. The first methodology employed by Dr. Fagin was referred to as Florida Osteopathic Utilization Based Bed Need. This methodology divided the 1988 Florida population by the number of "osteopathic patient days" in the state that year to obtain a rate of 31.62 patient days per one thousand population. "Osteopathic patient days" was determined from the Florida Health Care Cost Containment Board, 1988 Hospital Budget Data. The rate of 31.62 osteopathic patient days was then multiplied by the projected 1994 District XI population, resulting in a projection of 65,192 osteopathic patient days in District XI in 1994. The projected number of osteopathic beds needed in District XI to accommodate these patient days was accomplished by dividing the projected patient days by 365 to arrive at an average daily census of 179. The average daily census was then divided by the HRS standard of eighty percent occupancy for efficient operations, resulting in a projected need of 223 osteopathic beds in District XI in 1994. Subtracting the 100 licensed beds at Westchester, this methodology results in a projected need of 123 additional osteopathic beds by the year 1994. This first methodology suffers from the deficiencies noted in Findings of Fact 53-58 above. In addition, the state wide total of osteopathic patient days for purposes of this first methodology was obtained from fourteen "osteopathic" hospitals. However, the evidence raises serious doubt as to the reliability of this data. At least one of those hospitals is no longer osteopathic and another one of the hospitals includes a utilization rate of ninety-five percent for a service (psychiatric) which will not be offered by the proposed facility. The next methodology submitted by Dr. Fagin was entitled Florida Osteopathic Physician Based Bed Need. This method calculated patient days per osteopathic physician in the State of Florida by dividing the 1988 "osteopathic patient days" by the number of osteopathic physicians in 1989. Patient days per osteopathic physician was then multiplied by the projected number of osteopathic physicians in District XI in 1994 to arrive at a projection of 66,544 osteopathic patient days in District XI in 1994. The projected patient days were then divided by 365 to arrive at an average daily census of 182. Applying the occupancy standard of eighty percent, this method projects 228 osteopathic beds will be needed in District XI in 1994. Again, subtracting the beds at Westchester, Dr. Fagin concludes that there is a net bed need of 128 beds. In addition to the overall problems noted above with respect to identification of "osteopathic patient days," this calculation includes an overly optimistic assumption of the number of osteopathic physicians that can be expected in District XI. In making this calculation, Dr. Fagin assumed a thirty percent increase in the number of osteopathic physicians in District XI from 1989 to 1994. This assumption is predicated on an expectation that a large number of graduates from Southeastern College of Osteopathic Medicine ("SECOM") would remain in the area and there would also be an influx of practicing osteopaths moving into the area. Dr. Fagin based his assumption, in part, on data provided by the Florida Health Care Atlas which showed that there were 198 osteopathic physicians in District XI in 1986, 180 in 1987, and 256 in 1989. Dr. Fagin attributes the apparent increase in osteopathic physicians in the District from 1987 to 1989 on the influx of the first graduating class from the SECOM in 1988. However, the 1986 and 1987 data reflected only active osteopathic physicians whereas the 1989 data reflected all licensed osteopaths. In other words, the 1986 and 1987 data did not include retired and inactive physicians whereas the 1989 data did. No reliable evidence was presented to compare the number of active osteopathic physicians to any year subsequent to 1987. Furthermore, SECOM's first graduating class actually occurred in 1985, not 1988. Additional classes also graduated in 1986 and 1987. Therefore, Dr. Fagin's assumption that SECOM graduates will increase the ranks of osteopathic physicians in the district is not necessarily correct. In addition, these projections assume new physicians in the area will be as productive as established physicians, which is unlikely to be the case. In sum, Dr. Fagin's assumptions as to the expected growth and the number of osteopathic physicians in District XI during the next five years is predicated on several erroneous assumptions. The next methodology presented by Dr. Fagin was entitled District XI Osteopathic Utilization Based Bed Need. Dr. Fagin projected a minimum and maximum number of expected osteopathic patient days in 1994 in the District based upon the actual utilization of existing osteopathic facilities in the District (Westchester and Southeastern) in 1986 and 1987. He calculated the number of "osteopathic patient days" in the District in those years and divided it into the District population to obtain rates of 24.67 and 19.72 patient days per one thousand population. These rates were multiplied by the projected District population in 1994, then divided by 365 and achieved an average daily census of between 139 and 111. Applying the eighty percent occupancy standard, Dr. Fagin calculated that there would be a need in District XI for between 174 and 139 osteopathic beds. After subtracting the existing beds at Westchester, he calculated the net bed need in 1994 to be between 74 and 39 beds. In addition to suffering from the general defects noted above, this approach is unnecessarily narrow. This methodology does not include any years prior to 1986 because Dr. Fagin did not feel that DRG's fully impacted on occupancy rates prior to that time. Dr. Fagin eliminated any years after 1987 on the grounds that the impending closure of Southeastern introduced too many variables into the equation. By eliminating all other years, this methodology provides a limited view of actual utilization and ignores the continuing decline in the utilization rate of osteopathic facilities in the District dating back to the 1970's. Dr. Fagin's next methodology was entitled Osteopathic Physician Based Bed Need. The "osteopathic patient days" from the existing facilities in District XI in 1986 and 1987 were divided by the number of osteopathic physicians in the District. The patient days per physician were then multiplied by the projected number of osteopathic physicians in the District in 1994 to arrive at an estimate of maximum and minimum patient days in 1994. Dividing by 365, an average daily census of between 210 and 188 was projected. Applying the eighty percent occupancy standard, Dr. Fagin concluded there would be a need for between 263 and 235 osteopathic beds in District XI in 1994. After the 100 beds at Westchester were subtracted, a net need of 163 and 135 beds was calculated. This methodology suffers from the same deficiencies as those noted in Findings of Fact 53 through 59 and 63 through 65 above. Dr. Fagin's final projections were based on the relationship of the overall bed need in District XI to Osteopathic Bed Need. In 1986, osteopathic facilities in the District accounted for 2.1 percent of the total patient days. This figure was 1.8 percent in 1987. Applying these percentages to HRS' projected total bed need for the District in 1994, Dr. Fagin concluded that a minimum of 159 to 137 osteopathic beds were needed. After subtracting the beds at Westchester, he calculated a net need of between 59 and 37 beds. This approach suffers from the deficiencies noted in Findings of Fact 55 through 59 above. In addition, it does not account for the continuing decline in occupancy at osteopathic facilities in the District. Suburban's Application includes over 2,000 signatures from members of the community indicating their support for the proposed project. Those petitions do not specifically indicate support for an osteopathic facility. Instead, the petitions include the following statement: "I support the establishment of Suburban Medical Hospital in the Perrine/Cutler Ridge area." It is clear from the evidence that the desire of osteopathic physicians to have a new facility in the area and the reputation of Dr. Minkes will attract a number of admissions to the proposed project. Suburban presented extensive testimony from osteopathic physicians regarding their interest in the project and their intent to refer patients to the proposed facility if it is built. Physician referral plays a large role in determining where a patient is admitted. Thus, it does appear that the proposed project can be expected to achieve a higher occupancy rate than Westchester or other acute care facilities in the area. However, this expected occupancy does not in and of itself establish need. The second review criteria set forth in Section 381.705(1), deals with the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services in the district. For purposes of reviewing applications for osteopathic acute care facilities, HRS has interpreted "like and existing health care services" to include all acute care facilities irrespective of their orientation towards osteopathic or allopathic care. In evaluating this criteria, the goals of the local Health Plan are pertinent. One of the goals set forth in the local Health Plan is an access standard that an acute care hospital should be available to all residents of the District within 30 minutes average driving time. The Plan does not set forth a goal for access to osteopathic facilities. The existing hospitals in the District are sufficient to satisfy this criteria without the need to add another hospital. In accordance with the State Health Plan, HRS has concluded that the efficient level of utilization for acute care services is eighty percent occupancy. The utilization rate for osteopathic beds in Dade County is twenty- seven percent. Thus, the effective utilization standard is not met regardless of whether it is applied to all acute care hospitals or only osteopathic hospitals. Section 381.705(1)(c), Florida Statutes, requires a consideration of the Applicant's ability to provide quality care. HRS did not dispute Suburban's ability to provide quality osteopathic medical care. The Intervenors and Respondents have questioned whether quality care could be provided in the project as it is currently planned since the physical layout of the proposed facility does not meet hospital code requirements. Those deficiencies are discussed in more detail in Findings of Fact 97 through 101 below. Certainly, if those deficiencies are not corrected, the quality of care could be affected. Although the parties stipulated that Section 381.705(1)(e), Florida Statutes, remained at issue in this proceeding, no evidence was presented with respect to this criteria. Suburban's Application does not involve joint, cooperative, or shared health care resources and, therefore, there are no probable economies or improvements in service that may be derrived from its proposal. Section 381.705(1)(g), Florida Statutes, requires a consideration of the need for research and educational facilities. The existing Outpatient Center currently provides externship training for SECOM students. While the proposed facility may provide some additional training opportunities for osteopathic students, the evidence did not demonstrate that any such additional benefits would be significant. Section 381.705(h) requires a consideration of the availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. It also requires a consideration of the effects the project will have on clinical needs of health professional training programs in the District and 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. Finally, this Section requires a consideration of the availability of alternative uses of the resources for the provision of other health services and the extent to which the proposed services will be accessible to all residents of the District. The evidence indicates that there is a current shortage in the District of nurses and skilled hospital personnel, such as physical therapists, laboratory technicians, radiation therapy technicians, respiratory therapists and pharmacists. This shortage of available health care personnel is ongoing and long standing. While a number of existing employees of the Outpatient Center have indicated a willingness to become employees of the proposed project at the salary stated in the Application, they constitute only 35% of the projected staff for the proposed project. It does not appear that any of the existing staff are required to work weekends and nights on a regular basis. Such positions are likely to be the most difficult to fill. Petitioner has not demonstrated an ability to recruit and hire the additional skilled staff necessary to run a hospital on a full-time basis. Approval of this project is likely to exacerbate the existing shortage. It is also not clear from the Application whether Suburban intends to hire a hospital administrator. No such position is reflected on the tables in the Application setting forth "manpower requirements." The evidence presented at the hearing was very sketchy as to the availability of funds for capital and operating expenditures. Suburban's audited financial statements only show $10,000.00 cash on hand, all of which was donated by Dr. Minkes. Thus, Suburban has virtually no capital resources except to the extent that it might be able to borrow funds for capital expenditures and operating expenses. The Applicant does not own the property on which the proposed project will be located. No evidence was presented to establish the basis upon which the proposed project will be occupying the land and existing facility. The existing Outpatient Center and the land on which it is located is owned by Dr. Minkes and subject to a first mortgage of 1.5 million dollars. Monthly interest payments on this mortgage currently run between $25,000 and $35,000. The proposed project budget does not provide for the payoff of this mortgage. Dr. Minkes contended that the interest/amortization figures on the long-term feasibility table contained in the Application included the funds necessary to service the underlying mortgage on the property. However, no specific breakdown of this figure was provided. Furthermore, no clear explanation was given as to the basis upon which the proposed hospital would occupy the land and existing facility. Thus, it is not clear whether the existing mortgage would be paid off, some lease arrangement would be entered into between Suburban and Dr. Minkes as owner of the property, or whether some other arrangement would be made. It is not clear from the initial Application whether Suburban intends to finance 100% of this project. Lending institutions typically are not willing to assume all of the risk for a proposed project and, therefore, will usually only lend between 60 to 70% of the project cost. While the Applicant suggests that private investors may participate in the financing of the project, the only evidence introduced to support this contention was the testimony of Dr. Minkes that he had talked with various osteopathic physicians who had indicated an interest in participating as private investors and the testimony of Dr. Hershman who indicated that he was willing to commit $100,000.00 to the project. These statements do not provide a sufficient basis to conclude that Suburban has the resources available to meet the initial capital expenditures for this project. Dr. Minkes suggested that one possible way to raise funds for the project would be through a limited partnership offering or a private placement. However, the estimated project costs in the Application does not provide for the cost of registering a limited partnership or otherwise raising money through private investment. As part of its Application, Suburban submitted a letter from a real estate investment banking firm, Sonnenblick-Goldman Southeast Corp., indicating an "interest in exploring arranging financing" for 4.1 million dollars for the proposed project. At the hearing, Petitioner also proffered another "letter of interest" from James F. Perry of Professional Bancorp Mortgage indicating an interest in processing a loan application for the project. This letter was not part of the Application and does not provide any additional proof that the resources are available to complete this project. Both letters merely reflect an interest in seeking a loan on behalf of Suburban. Neither of these letters establishes that Suburban has secured sufficient funds to finance the proposed capital expenditure. The Application indicates that the proposed facility would treat all patients requiring medical care regardless of ability to pay and would implement payment schedules based on the patient's ability. The Application contains a projected distribution of fifty percent Medicare patients, ten percent Medicaid patients, and three percent indigent. However, no competent evidence was presented to support the reasonableness of this projected patient mix. The issues related to training are discussed in Findings of Fact 75 above. Section 381.705(1)(j), Florida Statutes, requires a consideration of the immediate and long-term financial feasibility of the proposal. As set forth in Findings of Fact 76 through 82 above, Petitioner has not demonstrated that it has the resources available to complete the project. Therefore, there are significant questions regarding the short-term feasibility of the project. In addition, as set forth in Findings of Fact 91 through 101, below, there are significant questions as to whether the project can be completed within the budgeted cost of $4,085,780 and still meet hospital code requirements. The long term financial feasibility and the pro forma projections contained in the Application were not verified by any direct testimony at the final hearing. Suburban's financial feasibility expert, Mr. Darrell Lumpkin, did not prepare the pro formas contained in the Application. Mr. Lumpkin was not hired by Suburban until several months after the Application was filed and shortly before the hearing in this cause. Suburban conceded that Mr. Lumpkin did not base his financial feasibility analysis on the Application filed by Suburban and that he would not testify regarding the figures contained in the Application. Mr. Lumpkin prepared a feasibility study generally applicable to any 36-bed proprietary hospital in the State. His study utilizes occupancy rates of 50% for year one and 60% for year two. In presenting his testimony concerning operating expenses, Mr. Lumpkin looked only to the average charges, average deductions from revenue, average contractual allowances, etc., from all proprietary hospitals in Florida. He did not adjust these average figures to reflect the payor mix anticipated at Suburban or to compensate for the small size of Suburban. He was provided with occupancy figures and salary costs to use in making his projections. However, the reasonableness of these figures was never established. While Petitioner contended that Mr. Lumpkin's study confirmed the reasonableness of the pro formas contained in the Application, there were several significant differences between Mr. Lumpkin's study and the information contained in the Application. For example, the Application assumes a first year occupancy of 38%; Mr. Lumpkin's study assumes a first year occupancy of 50%. Furthermore, Mr. Lumpkin's first year revenue projections and average daily charges were significantly higher than the figures contained in the Application. The reasonableness of the figures used by Mr. Lumpkin are also questionable. He used HCCB data which contained consolidated information from all proprietary hospitals rather than utilizing information that was more closely tailored to the proposed project. In determining revenue deductions, he utilized statewide averages which contain many variables. In sum, Mr. Lumpkin's study is of minimal help in evaluating the financial feasibility of this project. The evidence did not establish the reasonableness of the income and expense projections contained in the Application. Moreover, there are several areas where the Application omits or understates expected operating costs. For example, the benefits to be provided to employees, as stated in the pro forma projections, are only 8% of salaries. This percentage would be insufficient to cover the cost of the statutorily mandated benefits of Social Security and unemployment insurance. Furthermore, this benefit level would not cover Workers' Compensation, health insurance, disability insurance, retirement benefits or life insurance. While Suburban suggested that some or all these costs were built into the salary figures rather then the benefit numbers, no specific evidence was presented to support or explain this position. The Application assumes that financing can be obtained at a 10% interest rate. However, the evidence suggests that, at the time the Application was filed and as of the date of the hearing, this rate was probably overly optimistic. It is possible, indeed likely, that Suburban will have to borrow money at a rate in excess of 10%. Therefore, the monthly principal and interest payments may be higher than allotted. The evidence was unclear as to exactly what equipment would be purchased and/or leased for the Project. The Application contains no provision for the purchase of anything other than medical equipment. While a $600,000 contingency is provided, it does not appear that serious consideration has been given to the expected costs for day-to-day items such as furniture, televisions for patient rooms, and similar such items. In addition, it was unclear as to exactly what medical equipment would be required, whether it would be purchased or leased, what equipment in the existing Outpatient Center could be utilized, and whether there would be costs associated with such utilization. Much of the existing equipment serves as security for indebtedness of the Outpatient Center. The Application does not provide for the cost of security or a dietician, both of which are required at an acute care hospital. In sum, Suburban has not proven that the costs set forth in the Application are a reliable estimate of the costs that will necessarily be incurred to open the proposed hospital. The Application provides for ten ICU beds and 26 acute care beds. This bed configuration makes it unlikely that the facility will be able to achieve the utilization rate set forth in the Application. Thus, it is not clear that the projected revenues are reasonable. Section 381.705(1)(l), Florida Statutes, requires a consideration of the "probable impact of the proposed project on the cost of providing health services proposed by the Applicant, ... including... 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 service to promote quality assurance and cost-effectiveness." It is not clear whether osteopathic health services should be distinguished from allopathic health services in applying this criteria. No evidence was presented as to the probable impact of the proposed project on the cost of providing osteopathic services. Suburban contends that it will be offering health care services at lower cost than allopathic facilities in the area and, therefore, will have a positive effect on the cost of health care in the area and enhance competition to the benefit of health care consumers. To support this contention, Suburban argues that its per diem charges will be less than the Intervenors' and other allopathic facilities per diem charges. However, as indicated above, the evidence was insufficient to establish the reasonableness of the projected costs set forth in the Application. Furthermore, Suburban will not be providing some of the more costly services provided by larger hospitals. Suburban did not present any evidence comparing its charges with facilities providing similar services and/or with small hospitals. A comparison of Suburban's proposed patient charges with the average charges of larger hospitals does not reflect whether Suburban will be a cost-effective provider of acute care services. Finally, the proposed project may somewhat increase the demand for nurses and other skilled health care personnel which could exacerbate existing shortages in the District and lead to higher costs. Section 381.705(1)(m), Florida Statutes, requires a consideration of the costs and methods of the proposed construction. Suburban is proposing to convert an existing outpatient center to an acute care hospital. The Application projects a total project cost of $4,085,780. The total construction costs are estimated at $2,173,600. This sum includes a construction contingency of $190,000. In addition, the total project costs include a working capital reserve of $600,000. Schematic plans of the proposed project to 1/16th inch scale are required to be submitted with the CON Application. The Application is also required to contain certain tables that indicate the functional spaces, square footage per space, and construction cost per square foot for various areas. HRS conducts an architectural review of the submitted plans to determine whether the state requirements for the planned facility can be met. The physical plant requirements for general hospitals in this state are set forth in Rule 10D-28.081, Florida Administrative Code. As noted below, the plans submitted by Suburban fell short of these requirements in many areas. The evidence demonstrates that the proposed project could not be licensed without significant modifications to the submitted architectural plans. Such modifications will necessarily impact upon the cost of the project and, unless rectified, may also impact upon the quality of care rendered in the new facility. The uncertainty surrounding the changes needed to the architectural plans weighs heavily against approving the Application. When the existing building was constructed, Suburban attempted to build it to the then-existing hospital codes. Many aspects of those code requirements have changed and several aspects of the building do not meet the new standards. While Suburban has suggested that, because there is an existing building in place, it may not have to meet all of the current standards, no persuasive evidence or legal precedent was presented to indicate that HRS can or will waive those standards. Bernard Horovitz, the architect who prepared the plans for Petitioner, testified that the plans submitted were conceptual in nature and were not intended as final plans to be held to code standards. According to Mr. Horovitz, the development and refinement of the plans is an ongoing process with HRS that continues even after a Certificate of Need is issued. While Mr. Horovitz felt that the project could be completed in accordance with the applicable code requirements at a price that was not significantly different than the cost estimate set forth in the initial Application, the extent of the deficiencies detailed below raises considerable doubt as to this conclusion. During the review of Suburban's plans, James Gregory, the HRS Architectural Supervisor for the Office of Plans and Construction, discovered that certain essential functions were missing or not indicated in the plans. Some of the omissions and/or deficiencies in the plans submitted with the Application were as follows: Emergency room- The plans indicate that the emergency room is to be constructed in the area of the existing outpatient clinic. The evidence was unclear as to how or whether the outpatient clinic would continue to operate. Moreover, while the Application indicates that the facility would be operating an emergency room on a 24 hour basis, Dr. Minkes' testimony at the hearing raised some question as to whether the proposed hospital would have a fully- staffed emergency room. In any event, the plans provide no clear layout as to how the emergency room and out-patient clinic would be mixed. The plans contain no emergency grade level entrance for ambulance entry, parking or emergency room entry as required by Rule 10D-28.081(12), Florida Administrative Code. There was no reception and control area for the emergency room shown on the plans. Such a reception and control area is required by Rule 10D-28.081.(12)(b). Mr. Gregory testified that during his review he scaled the plans and discovered that the examination and treatment rooms were not large enough to meet the 100 square foot requirement set forth in Rule 10D-28.081(12)(e). Furthermore, Suburban's plans show a corridor running through the emergency room contrary to Rule 10D- 28.081(12)(m). While the cost estimates in the Application indicate extensive remodeling will be done in the area of the outpatient clinic, it is not clear that the remodeling could be completed and the emergency room brought up to code standards within the costs allocated. Furthermore, the evidence was unclear as to the Applicant's intentions with respect to jointly operating an emergency room and an outpatient clinic. Dietary and Dining Facilities - While the Application indicates the conversion of the existing building will include a cafeteria, the evidence at the hearing indicates that a final decision has not been made as to whether Suburban will operate a cafeteria for employees and visitors. In any event, the plans provide for only 720 square feet for the hospital's dietary and dining facilities. This area is too small to meet the functional requirements of Rule 10D-28.081(21). Storage Areas - Suburban's plans only allocate 1,260 square feet for general stores and central service areas. Rule 10D-28.081(25) requires the general storage area of a hospital to contain 20 square feet of storage per patient. In order to meet the general stores requirement, Suburban will only have 540 square feet of storage for central services. This remaining storage area would have to include a decontamination receiving room, a clean workroom to clean medical supplies used in the hospital, storage for clean medical supplies, storage for equipment used in delivery of patient care and a storage room for distribution carts. Furthermore, the plans did not provide for a body holding room as required by Rule 10D-28.081(19)(f). It is unlikely that all of these functions could be fit in the allocated area. Operating rooms - Rule 10D-28.081(10) sets forth a minimum size requirement of 360 square feet for operating rooms. The surgery rooms reflected on the plans do not meet this requirement. Moreover, the surgical area set forth in the plans contains only 75% of the required functions specified in the rule. The area lacked a storage room for splint and traction equipment and a sink for plaster work as required by Rule 10D-28.081(10)(b) if orthopedic surgery is to be performed. The proposed recovery room did not provide for an isolation room with an anteroom for infected patients, a medication administrative station, a supervisor's office, a nurses station, two scrub stations for each operating room, an equipment storage room of at least 100 square feet, a soiled workroom for the exclusive use of the operating staff, a storage room, an out-patient change area, (which is required if out-patient surgery is to be provided,) a stretcher alcove and a storage area for portable x-ray equipment as required under Rule 10D-28.081(10)(d) and (e). ICU/CCU - The ICU area was only generally laid out on the plans and there was no indication where the isolation room, emergency cardio-pulmonary resuscitation cart storage, soiled utility room, clean linen storage, equipment storage, staff toilets, staff lounge, waiting room, conference room, and nurses station would be located within this unit. All of these functions are required by Rule 10D-28.081(6). The ICU area functions cannot be shared with the general medical/surgical and nurses stations. The proposed ICU area does not appear to be large enough to accommodate the proposed ten ICU beds. This lack of space exists whether the rooms are arranged in a corridor or suite arrangement. The area where the ICU is proposed to be located has only one means of exit/access. Therefore, the ICU units will have to be set up in corridor system rather than a suite arrangement. Such an arrangement will reduce the usable square footage by approximately 800 feet. The loss of this 800 square feet further exacerbates the problem of lack of area. Nursing Care Unit - The nursing care unit shown on the plans does not have enough area to include all of the required functions set forth in Rule 10D- 28.081(5). Among the functions required to be located in the nursing care unit are a medication room of at least 50 square feet, a workroom and a storage room of at least 60 square feet, an equipment storage room and an alcove for stretchers. The plans submitted by Suburban failed to appropriately represent that the proposed project would meet the minimum standards set forth in Chapter 10D-28, Florida Administrative Code. While Suburban contends that the plans were not intended to be final and many of the issues could be addressed with HRS during the licensure process, the extent of the deficiencies raises serious questions as to whether this project could be completed within the budget set forth in the Application. A major redesign of the project will be necessary in order for it to meet code requirements. Suburban's contentions that these modifications could be made within the existing budget (including contingencies) and/or that waivers of certain elements could be obtained during the licensure process were not supported by persuasive evidence. Section 381.705(1)(n) requires a consideration of the applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent. As indicated above, no competent evidence was presented to establish the reasonableness of the patient mix set forth in the Application. Since Suburban has not begun operations, it has no historical record regarding provision of services to Medicaid and indigent patients. Dr. Minkes testified that the existing Outpatient Center treats all patients regardless of ability to pay and that the proposed project will operate on a similar basis. The existing Outpatient Center has entered into a contract with the State of Florida to provide primary care to Medicaid patients on a prepaid basis. Dr. Minkes anticipates that the proposed project would be used to provide hospital care to a large portion of the patients who enroll in the program. If that contract is implemented, the proposed project should provide some increased access for Medicaid patients. Section 381.705(2)(a) requires a consideration of the availability of less costly, more efficient or more appropriate alternatives to the proposal. Alternatives to new construction include purchasing an existing acute care hospital, working in conjunction with an existing acute care hospital in a joint venture or shared facility arrangement or increasing the utilization of Westchester. All of these alternatives could further the osteopathic presence in the District and Subdistrict without the need for additional construction and the addition of new acute care beds. While Dr. Minkes indicated that he did not feel any of these alternatives were viable, it does not appear that any serious efforts were undertaken to explore these alternatives. Section 381.705(2)(b) requires a consideration of the utilization of existing facilities providing inpatient service similar to those proposed. As set forth in Findings of Fact 14 through 19 above, Westchester, which is located in the same subdistrict as the proposed facility, has been operating at approximately 27% occupancy. This occupancy level has been steadily decreasing for several years. It must be anticipated that the approval of this Application would further deteriorate the efficient use of Westchester. For purposes of this Section, HRS interprets "similar services" to osteopathic acute care bed applications to include allopathic facilities which provide osteopathic services within the service area. If this interpretation is accepted, it is clear that there is a great excess of acute care beds in the District and the addition of the proposed beds would only diminish the potential for their efficient use of the existing beds. Section 381.705(2)(d) requires a consideration of whether patients will experience problems in obtaining inpatient care of the type proposed in the absence of the proposed new service. While there are only one hundred licensed osteopathic beds in the District, the evidence did not indicate that any individuals seeking osteopathic care were being denied such services. Section 381.705(2)(c) Florida Statutes, requires that, in the case of new construction, alternatives to new construction such as modernization or sharing arrangements, be considered and implemented to the maximum extent possible. As set forth in Findings of Fact 41 and 104 above, the evidence did not indicate that the modernization of Westchester or shared arrangements with other facilities have been fully explored. Baptist and South Miami are general acute care hospitals located in South Dade County. The primary service area for the proposed project overlaps the primary service areas of Baptist and South Miami. The evidence indicated that both intervenors are likely to loose some admissions and will probably experience some difficulties in obtaining skilled staff if this Application is approved. Both of the intervenor hospitals have a substantial number of vacant positions for which Suburban would be competing. If the Application is approved, Suburban will be seeking to fill its skilled staff positions from an already limited pool. One expected result would be an increase in salary structure for both Baptist and South Miami. Petitioner challenged the accuracy of the zip code analysis prepared by Mr. Cushman which attempted to estimate the number of lost admissions that each of the Intervenors could expect. While the zip code analysis does have many flaws, the evidence was sufficient to establish that both South Miami and Baptist will loose some admissions if the proposed facility is opened. Established programs at Baptist and South Miami could be substantially affected by the increase in salaries and lost admissions that are likely to occur if the proposal project is approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, recommended that HRS enter a final order denying Suburban Medical Hospital, Inc.'s application for Certificate of Need #5868 to convert an existing outpatient surgery center to an osteopathic acute care hospital by conversion and new construction. RECOMMENDED in Tallahassee, Leon County, Florida, this 22nd day of March, 1991. J. STEPHEN MENTON 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 22nd day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4445 All four parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1.-2. Adopted in substance in the Preliminary Statement. Adopted in substance in Findings of Fact 1 and 3. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 4 and 10. Adopted in pertinent part in Findings of Fact 8 and 10. Adopted in pertinent part in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 14 and 15. Adopted in substance in Findings of Fact 48. Subordinate to Findings of Fact 50-58. Subordinate to Findings of Fact 59. 12. Subordinate to Findings of Fact 63 and 64. 13. Subordinate to Findings of Fact 52 and 53. 14. Subordinate to Findings of Fact 61 and 62. 15. Subordinate to Findings of Fact 63 and 64. 16. Subordinate to Findings of Fact 65. 17. Subordinate to Findings of Fact 66. 18. Subordinate to Findings of Fact 67. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 58. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 53 and 56. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 55 and 65. Subordinate to Findings of Fact 69, 33 and 34. Rejected as a summary of testimony rather than a finding of fact. Subordinate to Findings of Fact 68. Adopted in substance in Findings of Fact 44 and in the Preliminary Statement. 26. Subordinate to Findings of Fact 37-42. 27. Subordinate to Findings of Fact 37 and 42. 28. Subordinate to Findings of Fact 37. 29. Subordinate to Findings of Fact 26. 30. Subordinate to Findings of Fact 27. 31. Subordinate to Findings of Fact 24-30. 32. Subordinate to Findings of Fact 24. 33. Subordinate to Findings of Fact 24 and 28. Rejected as vague, overbroad and irrelevant. Subordinate to Findings of Fact 26 and 30. Adopted in substance in Findings of Fact 15. Rejected as constituting a summary of testimony rather than a finding of fact because it is irrelevant to the conclusions reached in the Recommended Order. Subordinate to Findings of Fact 21-23. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 21-23. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject area is addressed in Findings of Fact 41, 70, 94 and 106. Subordinate to Findings of Fact 73. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 74. Subordinate to Findings of Fact 75. Subordinate to Findings of Fact 75. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 75. Subordinate to Findings of Fact 79-81 and 90. Rejected as irrelevant. This subject matter is addressed in Findings of Fact 76. Subordinate to Findings of Fact 76. Subordinate to Findings of Fact 81 and 82. Rejected as unnecessary and irrelevant. Subordinate to Findings of Fact 13 and 83. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject matter is addressed in Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 85. Subordinate to Findings of Fact 82. Subordinate to Findings of Fact 86-93. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Subordinate to Findings of Fact 69 and 93. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 93. Rejected as constituting a summary of testimony and argument rather than a finding of fact. This subject matter is addressed in Findings of Fact 69 and 73. Subordinate to Findings of Fact 80 and 89. Subordinate to Findings of Fact 80. Subordinate to Findings of Fact 86 and 87. Subordinate to Findings of Fact 86-93. Subordinate to Findings of Fact 86-92. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 93 and 98-100. Rejected as constituting a summary of testimony and legal argument rather than a finding of fact. This subject matter is addressed in Finding of Fact 86 and 87. 70-72. Subordinate to Findings of Fact 94 and 105. 70.(sic) Rejected as unnecessary. A related issue is addressed in Findings of Fact 94. Adopted in substance in Findings of Fact 95. Subordinate to Findings of Fact 100. Subordinate to Findings of Fact 100. Rejected as unnecessary. Subordinate to Findings of Fact 90. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 96-101. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 96-101. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 100. Subordinate to Findings of Fact 102. Subordinate to Findings of Fact 103. Subordinate to Findings of Fact 104. See the rulings on proposed findings 29-40 above. Subordinate to Findings of Fact 108. Subordinate to Findings of Fact 26 and 27. Subordinate to Findings of Fact 31. Suburban has submitted eleven proposed findings with respect to the standing issue. Those proposals are subordinate to Findings of Fact 109-112. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 5. 2.-3. Adopted in substance in Findings of Fact 1. 4. Adopted in substance in Findings of Fact 5. 5.-6. Subordinate to Findings of Fact 7. 7.-8. Adopted in substance in Findings of Fact 36 and 42. Addressed in Findings of Fact 36, 42, 43 and 71. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 15 and 21. Subordinate to Findings of Fact 43. Subordinate to Findings of Fact 71. Adopted in substance in Findings of Fact 33. Adopted in substance in Findings of Fact 24 and 25. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 41-43 and 71. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 72. 24.-25. Adopted in pertinent part in Findings of Fact 21. Adopted in substance in Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 20. 28. Subordinate to Findings of Fact 40. 29. Subordinate 106. to Findings of Fact 105 and 30. Subordinate 49. to Findings of Fact 46 and 31. Subordinate 49. to Findings of Fact 46 and Adopted in substance in Findings of Fact 50. Subordinate to Findings of Fact 51. Subordinate to Findings of Fact 59. Subordinate to Findings of Fact 53. Subordinate to Findings of Fact 53. Subordinate to Findings of Fact 53 and 55. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 8, 10 and 56. 39. Subordinate to Findings of Fact 58. 40. Subordinate to Findings of Fact 62. Subordinate Subordinate to Findings of to Findings of Fact Fact 57. 53 and 57. 43. Subordinate to Findings of Fact 55. 44. Subordinate to Findings of Fact 53-55. 45. Subordinate to Findings of Fact 54. 46. Subordinate to Findings of Fact 65. Subordinate Subordinate to Findings of to Findings of Fact Fact 65. 63 and 66. Subordinate Subordinate to Findings of to Findings of Fact Fact 64 and 64. 66. Subordinate to Findings of Fact 55 and 64. Subordinate to Findings of Fact 67. Adopted in pertinent part in Findings of Fact 53. 54. Subordinate to Findings of Fact 85-93. 55. Subordinate to Findings of Fact 85-93. 56. Subordinate to Findings of Fact 86 and 87. 57. Subordinate to Findings of Fact 87. 58. Subordinate to Findings of Fact 86 and 87. 59. Subordinate to Findings of Fact 87. 60. Subordinate to Findings of Fact 87. 61. Subordinate to Findings of Fact 87. Addressed in pertinent part in Findings of Fact 86. This subject matter is also addressed in the Preliminary Statement and the Conclusions of Law. Subordinate to Findings of Fact 86 and 87. This subject is also addressed in paragraphs 17 of the Conclusions of Law. Addressed in paragraphs 17 of the Conclusions of Law. Addressed in pertinent part in Findings of Fact 65. 66. Subordinate to Findings of Fact 82. 67. Subordinate to Findings of Fact 81. 68. Subordinate to Findings of Fact 81. 69. Subordinate to Findings of Fact 81. 70. Subordinate to Findings of Fact 78 and 81. 71. Subordinate to Findings of Fact 86-93. 72. Subordinate to Findings of Fact 86-93. 73.-74. Addressed in pertinent part in Findings of Fact 86 and 88. Addressed in the Preliminary Statement. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 101. 80.-101. Adopted in substance in Findings of Fact 101. Subordinate to Findings of Fact 100 and 102. Subordinate to Findings of Fact 98, 100 and 102. Rejected as a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 71. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 20. Subordinate to Findings of Fact 42, 43 and 107. Adopted in substance in Findings of Fact 107. Subordinate to Findings of Fact 31, 33, 42, 43 and 70-73. Adopted in substance in Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 70 and 106. 111. Subordinate 101. to Findings of Fact 73 and 97- 112. Subordinate and 108. to Findings of Fact 45, 104 113. Subordinate and 108. to Findings of Fact 45, 104 Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 45, 104 and 108. Rejected as unnecessary. Furthermore, there is considerable confusion as to how this per diem calculation was made. 116.-117. Subordinate to Findings of Fact 105-106. The Intervenor's Proposed Findings of Fact (Baptist Hospital) Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1.-7. Subordinate to Findings of Fact 109-112. This subject matter is addressed in paragraph 2 of the Conclusions of Law. 8.-14. Subordinate to Findings of Fact 50-67. Subordinate to Findings of Fact 15 and 17- 23. Adopted in pertinent part in Findings of Fact 17, 21, 30, 65 and 69. This proposal consists largely of legal argument and is addressed in the Conclusions of Law. Pertinent portions of the proposal are addressed in Findings of Fact 14 and 18. Subordinate 37. to Findings of Fact 42. 19. Subordinate and 108. to Findings of Fact 41, 104 20. Subordinate to Findings of Fact 71 and 83. 21. Subordinate 71-73. to Findings of Fact 24-33 and 22. Subordinate to Findings of Fact 71. 23. Subordinate 71-73. to Findings of Fact 37-43 and 24. Subordinate 72. to Findings of Fact 20, 42 and 25. Much of this proposal consists of legal argument. The pertinent factual provisions are addressed in Findings of Fact 70 and 106. 26. Subordinate to Findings of Fact 106. 42 and 27. Subordinate to Findings of Fact 105. 42 and 28.-29. The pertinent portions of these proposals are addressed in Findings of Fact 73. The remainder of these proposals are rejected as irrelevant. Subordinate to Findings of Fact 71. Adopted in pertinent part in Findings of Fact 14 and 75. 32. Subordinate to Findings of Fact 76. 33. Subordinate to Findings of Fact 77. 34. Subordinate to Findings of Fact 78-81. 35. Subordinate to Findings of Fact 75. 36. Subordinate and 108. to Findings of Fact 41, 104 37. Subordinate 103. to Findings of Fact 83 and 38. Subordinate 85. to Findings of Fact 76-82 and 39. Subordinate to Findings of Fact 85-102. 40. Subordinate 93. to Findings of Fact 86-88 and 41. Subordinate to Findings of Fact 86-102. 42. Subordinate to Findings of Fact 94. This proposal consists largely of legal argument. Pertinent factual issues are addressed in Findings of Fact 20 and 21, 76 and 94. Subordinate to Findings of Fact 95-102. Subordinate to Findings of Fact 83 and 103. Much of this proposal consists of legal argument and/or speculation. Pertinent factual issues are addressed in Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 105 and 106. Subordinate to Findings of Fact 41, 104 and 108. Subordinate to Findings of Fact 69. The Intervenor's Proposed Findings of Fact (South Miami Hospital) Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. 4.-6. Subordinate to Findings of Fact 16-19. Adopted in substance in Findings of Fact 15, 20 and 21. The first sentence is adopted in substance in Findings of Fact 48. The remainder is rejected as constituting legal argument. Adopted in pertinent part in Findings of Fact 49 and 50. Adopted in substance in Findings of Fact 6. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 101. Adopted in substance in Findings of Fact 79. Adopted in substance in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 101. Subordinate to Findings of Fact 100. Included in the Preliminary Statement. Subordinate to Findings of Fact 73. Adopted in pertinent part in Findings of Fact 96. Adopted in substance in Findings of Fact 101. Subordinate to Findings of Fact 101. Subordinate to Findings of Fact 98-100. Subordinate to Findings of Fact 100 and 102. Rejected as constituting a summary of testimony rather than a finding of fact. This subject matter is addressed in Findings of Fact 98-102. Adopted in substance in Findings of Fact 44 and in the Preliminary Statement. Adopted in substance in Findings of Fact 44 and 45. Adopted in substance in Findings of Fact 45. Adopted in pertinent part in Findings of Fact 48 and 49. Rejected as irrelevant. Subordinate to Findings of Fact 70 and 106. Adopted in pertinent part in Findings of Fact 20 and 21. Rejected as vague. This subject matter is addressed in Findings of Fact 20 and 21. Subordinate to Findings of Fact 33 and 35. Subordinate to Findings of Fact 20, 21 and 42. Subordinate to Findings of Fact 23 and 30. Adopted in substance in Findings of 25. Subordinate to Findings of Fact 24. Subordinate to Findings of Fact 24 and 30. Subordinate to Findings of Fact 23. Subordinate to Findings of Fact 23. Addressed in pertinent part in Findings of Fact 20 and 21. 42.-43. Rejected as overly broad. This subject matter is addressed in Findings of Fact 31. 44. Subordinate to Findings of Fact 40 and 42. 45. Subordinate to Findings of Fact 73. 46. Subordinate to Findings of Fact 35. 47.-51. Subordinate to Findings of Fact 49-67. 52. Subordinate to Findings of Fact 35. 53.-55. Subordinate to Findings of Fact 109-112. 56. Subordinate to Findings of Fact 85-93. 57. Subordinate to Findings of Fact 69. 58. Subordinate to Findings of Fact 69 and 93. Rejected as overly broad. This subject matter is addressed in Findings of Fact 35 and 73-109. Rejected as unnecessary. COPIES FURNISHED: Daniel C. Minkes, Esquire 17615 S.W. 97th Avenue Miami, Florida 33157 Silvio Amico, Esquire 6401 S.W. 87th Avenue Suite 114 Miami, Florida 33173 Thomas R. Cooper, Esquire Edward Labrador, Esquire Suite 103 2727 Mahan Drive Tallahassee, Florida 32308 Kyle Saxon, Esquire Catlin, Saxon, Tuttle & Evans 1700 Alfred I. Dupont Building 169 East Flagler Street Miami, Florida 33131 Jay Adams, Esquire 1519 Big Sky Way Tallahassee, Florida 32301 Jean Laramore, Esquire 7007 McBride Pointe Tallahassee, Florida 32312 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
