The Issue Whether the Respondent Department complied with the pertinent statutes and rules when it amended and extended a certificate of need previously granted to the Intervenor, Bayonet Point Hospital, Inc., without notice to Petitioner, Port Richey Medical Center, Inc. The Petitioner, Port Richey Medical Center, Inc., an association of six (6) osteopathic physicians, applied for a certificate of need in the service area of Pasco County, Florida, in which the Intervenor, Bayonet Point Hospital, Inc., had previously been granted a certificate of need. Subsequent to the filing of Petitioner's application, Bayonet Point was granted an increase in its approved capital expenditure of 5.2 million dollars, its certificate was amended to move the construction site, and the certificate of need was extended for a period of six (6) months. The amendments and extension were approved by the Respondent, Department of Health and Rehabilitative Services, without notice to Petitioner. Petitioner filed an administrative action.
Findings Of Fact A one (1) year certificate of need, #960, was issued to Bayonet Point Hospital, Inc. on November 13, 1978, to expire November 12, 1979, pursuant to an order of the appellate court in Samson v. Bureau of Community Medical Facilities Planning of Department of Health and Rehabilitative Services, Fla. app., 363 So.2d 412 reversing a denial on May 24, 1976 of an application for a certificate of need for the construction of a 200-bed hospital in the Bayonet Point Community, Pasco County, Florida at a total cost of 4.8 million dollars. On June 19, 1979 Port Richey Medical Center, Inc. filed a letter of intention to file an application for a certificate of need and thereafter, on September 5, 1979, filed its application to build a 100-bed osteopathic hospital in the same service area in which Bayonet Point held its certificate. On July 23, 1979 Bayonet Point requested a letter of authorization to change the cost of the project from 4.8 million dollars to 10 million dollars (Petitioner's Exhibit 9). The administrator of the office of Community Medical Facilities consulted with the supervisor of the architectural and engineering unit and granted the increase on August 16, 1979 (Petitioner's Exhibit 13). On October 10, 1979 Petitioners filed a petition demanding a hearing ". . .to demonstrate that. . .the actions taken by the Department of Health and Rehabilitative Services have been outside the scope of the applicable statutes." Bayonet Point's Motion to Intervene filed October 19, 1979 was granted. On October 26, 1979 Bayonet Point requested an extension of time to its certificate and supported its request with documentation as required by Rule 10- 5.13(2), Florida Administrative Code. In addition the request stated that the administrative action filed by Petitioner on October 10, 1979, plus the finding that the designated site of the project was located in a flood-prone area were good cause to extend the certificate. The certificate of need was extended to terminate May 12, 1980, without notice to Petitioner. The Hearing Officer finds that: (a) The Respondent Department is required to determine need in the service area of a proposed health care facility but is not required to approve site location. The change in the site of the facility is within the service area previously approved and can be made without prior approval of Respondent; and (b) the Intervenor, Bayonet Point Hospital, Inc., is a subsidiary of Hospital Corporation of America, Inc., which has acquired its stock, but Bayonet Point Hospital, Inc. holds the certificate of need and proposes to construct and operate the hospital. No transfer of the certificate of need has been made. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law the Hearing Officer recommends that: The issues raised in the Port Richey Medical Center, Inc. petition be reviewed and determined by the agency upon notice to Petitioner; and An extension of time to the certificate of need held by the Intervenor be granted for a period of six (6) months from the date of the Final Order. DONE and ORDERED this 18th day of February, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Eric J. Haugdahl, Esquire Department of HRS 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 Kenneth G. Oertel, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Jon C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Cynthia S. Tunnicliff, Esquire Suite 750 Barnett Bank Building Post Office Box 82 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES PORT RICHEY MEDICAL CENTER, INC., Petitioner, vs. CASE NO. 79-2052 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent, vs. BAYONET POINT HOSPITAL, INC., Intervenor. /
The Issue The issue is whether the correctional officer certification of Steven S. Wright should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Steven S. Wright is a certified correctional officer, having been issued certificate number 43-88-502-05 on December 19, 1988. Mr. Wright was employed as a Correctional Officer I at Lake Correctional Institute in June 1989. On the morning of June 20, 1989, and on other occasions, Mr. Wright had discussed drugs with inmates. He did not encourage or support the use of drugs. He believed these discussions were a useful part of the rehabilitation process. Later on June 20, 1989, Inmate Clinton Gholson approached Mr. Wright in the Food Services area and placed a piece of paper in Mr. Wright's pocket. Mr. Wright was planning to be married in a short time. Gholson had indicated that he and some other inmates wanted to make a wedding present for Wright in Arts and Crafts. Because inmates are generally prohibited from giving gifts to correctional officers, Mr. Wright and Gholson had agreed to a paper work process which was to be followed if Gholson and the others wished to make the gift for Mr. Wright. Authorization was to be sought before Mr. Wright actually received the gift. Gholson was to give Mr. Wright a choice of gifts Gholson could make. Mr. Wright understood that Gholson was to give him a short written list from which to pick. While Mr. Wright was working on June 20, 1989, Gholson approached him from behind and slipped the piece of paper into Mr. Wright's back pocket. Gholson indicated it was the gift list and Mr. Wright was to circle the gift he wanted. Gholson said something like, "You do that and that's what we'll make." Mr. Wright did not look at the note then. He forgot about it and finished his work. When Mr. Wright got home that evening, he discovered the note in his pocket. When he opened it, instead of a gift list, he found $3.00 and a note asking Mr. Wright to smuggle drugs (a "twenty cent piece") into the prison and they would make $240.00 from it. Mr. Wright was scheduled off from work the next two days. He was afraid he would lose his job because of what Gholson had done. When Mr. Wright returned to work on June 23, 1989, he told Sergeant Alexander what had happened. She sent him to Major Collier to make a report. Wright made the report and submitted it. He had forgotten to bring the note and money that day, so he could not attach it to the report. When Mr. Wright returned home that night, the note and money were gone. It was never determined if his wife or his nephew or someone else had thrown it away. Once Gholson knew he had Mr. Wright in a bad position, he used it to his advantage. He began demanding money from Mr. Wright and stated at various times that he had given Mr. Wright $10.00 to buy drugs and that he had loaned Mr. Wright $10.00. Mr. Wright reported these incidents immediately. When Gholson wrote another note demanding $10.00, Mr. Wright immediately turned that note over to Major Collier. A hearsay statement from Gholson in the form of a taped interview was submitted into evidence. It is found that Gholson's statements are so unbelievable as to be unworthy of any credibility. Even if the statements were not hearsay, they would be too unbelievable to form the basis for a finding of fact. Mr. Wright was fired from his job at Lake Correctional Institute as a result of these incidents and Gholson's statements. While there are some insignificant inconsistencies among the various statements and reports given by Mr. Wright, I find that his testimony and account of these events is absolutely credible and worthy of belief. While it is not disputed that Mr. Wright left the correctional institute on June 20, 1989, with a note and $3.00 which Gholson slipped into his pocket, it is affirmatively found that Mr. Wright had unwittingly done so. Mr. Wright had no idea that Gholson had placed money into his pocket until he reached home later that night. Mr. Wright did not knowingly accept money from Gholson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a Final Order dismissing all charges against Steven S. Wright. RECOMMENDED this 10th day of June, 1991, at Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991.
Conclusions Having reviewed the Amended Notice of Intent to Deny, the Amended Administrative Complaint, and the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named pursuant to Chapter 408, Part IJ, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny, the Amended Administrative Complaint, the Administrative Complaint, and the Election of Rights forms (Composite Ex. 1). The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement!. (Ex. 2) Based upon the foregoing, it is ORDERED: Filed June 17, 2014 4:37 PM Division of Administrative Hearings 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. Lighthouse Inn North agrees as follows: a. The Notice of Intent to Deny letter is deemed superseded; b. A Change of Ownership application for an eligible provider shall be filed within 180 days of the execution of the settlement agreement; c. Lighthouse Inn North will pay the fine of $2,500.00 plus $237.00 survey fee' and $3,250.00 for a total of $5,987.00 before the Change of Ownership is complete, but not later than 90 days after the execution of the settlement agreement. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this /3 day of Serena , 2014. Elizabeth Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 1 Paragraph 4(c) of the Settlement Agreement contains a scrivener’s error. It indicates a survey fee of $500.00, but the correct survey fee amount is $237.00. CERTIFICATE OF SERVICE I CERTIFY that a true and corr persons by the method designated on this Jan Mills Facilities Intake Unit (Electronic Mail) as py of this Final Order was served on the below-named day of ’ a / foo Ws bo , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Finance & Accounting Revenue Management Unit (Electronic Mail) Alba M. Rodriguez, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Robert C. Wallach, Esq. Wallach Law, P.A. 4171 West Hillsborough Blvd. ~ Suite 9 Coconut Creek, Florida 33073 (U.S. Mail) Robert E. Meale Claude B. Arrington Administrative Law Judges Division of Administrative Hearings (Electronic Mail) Richard J. Saliba Presiding Officer Agency for Health Care Administration (Electronic Mail)
The Issue Whether James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?
Findings Of Fact Mr. Shepherd filed an Application for Employment dated September 12, 1960, seeking employment in the position of Equipment Operator I (Prison) with the Florida State Road Department, the predecessor of the Florida Department of Transportation. Mr. Shepherd began his employment with the Florida State Road Department on September 16, 1960. Mr. Shepherd completed and submitted an Application for Employment as a Relief Guard on September 19, 1960. Mr. Shepherd began his employment on September 16, 1960, with the State of Florida as an Equipment Operator I (Prison). He was assigned to the Bartow Road Prison. During the time that Mr. Shepherd was employed at the Bartow Road Prison, it was a multi-custody facility housing minimum, medium and maximum custody prison inmates. The inmates at the prison were employed in the maintenance of the roads. Inmates were escorted from the prison to job sites. If the inmate crew was made up of maximum custody inmates, the crew was accompanied by an armed guard. Generally, a maximum custody crew also included a truck driver (an Equipment Operator I) and a Road Foreman. If the inmate crew was made up of minimum or medium custody inmates, the crew was not accompanied by an armed guard. The crew was accompanied by a truck driver and, if available, a Road Foreman. The Road Foremen were responsible for supervising the work of the crew. Truck drivers (Equipment Operators) were responsible for operating the truck used to transport the crew and its tools. On April 15, 1964, Mr. Shepherd signed a Florida Merit System, Request for Classification Approval form which included the following description of Mr. Shepherd's duties while employed at the Bartow Road Prison: I am an equipment operator I. The duties of this job consist of: 90% A. Drive Dump truck. 5% B. Shoulder work; filling up washouts, etc. 5% C. Washing, polishing, lubrication of truck. On April 21, 1964, Mr. Shepherd's supervisor signed a similar form containing the same description of Mr. Shepherd's duties while at the Bartow Road Prison. Mr. Shepherd's primary responsibilities and duties while employed at the Bartow Road Prison consisted of the driving of a truck transporting prisoners to and from work sites and keeping the truck and tools with the prisoner crew. In addition to Mr. Shepherd's primary responsibilities and duties, Mr. Shepherd also carried out the following functions on occasion while employed at the Bartow Road Prison: Assisting the crew guard in maintaining custody and control of the prisoners. On some of these occasions, Mr. Shepherd was given one of the guard's weapons; Carrying weapons issued by the prison; Maintaining the safety of prisoners in and outside the prison; Assisting in the search for and apprehension of prisoners who escaped from the prison. On these occasions, Mr. Shepherd was issued a weapon. Finally, in addition to the responsibilities and duties listed in findings of fact 8 and 9, while employed at the Bartow Road Prison Mr. Shepherd was also required to work every third night and every third weekend in the prison, twenty-four hours a day. During these periods, Mr. Shepherd assisted in guarding the prisoners in the prison from the guard towers around the perimeter of the prison and inside the prison dormitory in the evening until approximately 10:00 p.m. Mr. Shepherd was armed while manning the guard towers. Mr. Shepherd was not armed when he was in the prison dormitory but he did supervise and control inmates when necessary. Mr. Shepherd also participated in foot patrols outside the perimeter fence of the prison. During the month of October, 1970, while employed at the Bartow Road Prison, Mr. Shepherd was kidnapped and taken hostage by a prisoner from a crew of prisoners under Mr. Shepherd's supervision and control. Mr. Shepherd was not armed at the time. The prisoner attempted to escape, threatened Mr. Shepherd with death and severe injury and forced Mr. Shepherd to drive the prisoner during his attempted escape. The escape was subsequently prevented by the Polk County Sheriff's Department. There was an eight-month period of time during Mr. Shepherd's employment at the Bartow Road Prison that Mr. Shepherd continuously exercised supervision and control over prisoners. During this period Mr. Shepherd was issued a weapon and rode in the guard's cage at the back of the truck. Mr. Shepherd was issued a commission from the Division of Corrections. This commission authorized Mr. Shepherd to "exercise supervision or control over State prisoners ..." The commission did not constitute an assignment to a guard position but it was necessary in order for Mr. Shepherd to carry out some of his responsibilities and duties while employed at the Bartow Road Prison. From September 16, 1960, until November 30, 1970, Mr. Shepherd was a member of the State and County Officer's and Employees' Retirement System. Effective December 1, 1970, Mr. Shepherd became a member of the Florida Retirement System. In January, 1971, Mr. Shepherd was promoted to the position of Road Foreman. At this time Mr. Shepherd was also transferred from the Bartow Road Prison to the LaBelle Road Prison. While employed as a Road Foreman, Mr. Shepherd's primary responsibilities and duties consisted of directing the activities of prisoner crews in working on the roads and supervising equipment operators and prison guards who accompanied him. Mr. Shepherd's primary responsibility and duty did not include the custody and restraint of prisoners. While employed as a Road Foreman, Mr. Shepherd occasionally assisted the guard responsible for guarding the prisoners. During Mr. Shepherd's employment as a Road Foreman, he was not required to spend any days or weekends at the prison. In June, 1972, Mr. Shepherd transferred to the Division of Corrections as a Correctional Officer I. Mr. Shepherd moved to Apalachicola Correctional Institute, in Sneeds, Florida. In August, 1972, Mr. Shepherd transferred back to the Department of Transportation as an Equipment Operator. He was assigned to the maintenance facility in Marianna, Florida. Mr. Shepherd remained in Marianna until December, 1973. At that time Mr. Shepherd was promoted to Road Foreman and transferred back to the LaBelle Road Prison. Mr. Shepherd remained at LaBelle Road Prison until October, 1976. At that time he transferred to the Department of Corrections. Mr. Shepherd's primary responsibilities and duties while at LaBelle Road Prison from December, 1973, to October, 1976, were essentially the same as during his employment at LaBelle Road Prison from January, 1971 to June, 1972. Mr. Shepherd remained with the Department of Corrections until his retirement. Effective March 1, 1987, Mr. Shepherd retired as a member of the Florida Retirement System. On May 5, 1987, Mr. Shepherd signed an Application for Special Risk Equivalent Credit. In the Application Mr. Shepherd sought special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October 1, 1976. By letter dated July 10, 1987, Mr. Shepherd was notified by the Department that the Application signed by him on May 5, 1987, was being denied. The positions of Equipment Operator I (Prison) and Road Foreman which Mr. Shepherd held were not certified in compliance with Section 943.1395, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that James K. Shepherd's Application for Special Risk Equivalent Credit for the periods of employment from September 16, 1960, through June, 1972, and December, 1973, through October, 1976, be DENIED. DONE and ENTERED this 30th day of June, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3823 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 & 4. 2 5. 3 8 & 9. 4 10. 5 15. 6 11. 7 12. 8 15. 9 16 & 17. 10 19. See also 1-18. 11 20 & 21. 12 22 & 24. 13 Hereby accepted. 14 26. 15 Not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Mr. Shepherd retired from the Florida Retirement System on March 1, 1987. 2-3 2 & 4. 4 1. 5 Not supported by the weight of the evidence. The application for Relief Guard was not filed "contemporaneously with the application for Equipment Operator. See 3. 6-7 Irrelevant to this proceeding. 8 6. 9 5. 10 Not supported by the weight of the evidence. See 17. 11 9. 12 10. 13-14 8. 15 14. 16 Hereby accepted. 17 13. 18-21 Hereby accepted. 22 13. 23-25 Hereby accepted. 26-28 Taken into account in the weight given to the evidence. 29 8. 30 5. 31 8. 32 9. 33 8. 34 17 & 18. 35 8. 36 8 & 9. 37 28. 38 Hearsay. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Frieder Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles Tindell, Esquire Charles Tindell, P.A. Post Office Box 5666 406 North Wild Olive Avenue Daytona Beach, Florida 32018 =================================================================
Conclusions Having reviewed the Amended Notice of Intent to Deny, the Amended Administrative Complaint, and the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named pursuant to Chapter 408, Part IJ, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny, the Amended Administrative Complaint, the Administrative Complaint, and the Election of Rights forms (Composite Ex. 1). The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement!. (Ex. 2) Based upon the foregoing, it is ORDERED: Filed June 17, 2014 4:39 PM Division of Administrative Hearings 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. Lighthouse Inn North agrees as follows: a. The Notice of Intent to Deny letter is deemed superseded; b. A Change of Ownership application for an eligible provider shall be filed within 180 days of the execution of the settlement agreement; c. Lighthouse Inn North will pay the fine of $2,500.00 plus $237.00 survey fee' and $3,250.00 for a total of $5,987.00 before the Change of Ownership is complete, but not later than 90 days after the execution of the settlement agreement. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this /3 day of Serena , 2014. Elizabeth Agency for Health Care Administration
Findings Of Fact 1 In either April or May, 1983, HRS District III, Respondents in this case, advertised a request for proposals to operate a spouse abuse shelter in a subdistrict of HRS District III in accordance with the following schedule: The request for proposal (RFP) package was to be picked up by 5 p.m., May 20, 1983; the applicant was to notify HRS of its intent to submit a proposal by 5 p.m., May 20, 1983; and the proposal was to be filed with HRS no later than 5 p.m., June 3, 1983. The contract in question was for the period July 1, 1983 through June 30, 1984. Linda Tucker, President of the Petitioner's Board of Directors, found out about the solicitation from her Vice President, Alice Mulrooney, who had received word of it through an administrative letter sent to her in her capacity of an officer on the County Rape Council. Ms. Tucker and Ms. Mulrooney both telephonically spoke with Carol Laxton, the HRS official in Gainesville who was stewarding this solicitation. It was not clear which of the two spoke with her first. Ms. Tucker spoke with Ms. Laxton on May 20, 1983, and requested to be furnished with a copy of the RFP. Both Tucker and Mulrooney indicated they told Ms. Laxton that Petitioner was not yet incorporated. Both agree Ms. Laxton advised them the requirement for incorporation could be waived and that the proposal should be submitted anyway, including a letter from Petitioner's lawyer to the effect that the incorporation papers had been forwarded to the office of the Secretary of State. On May 25, 1983, Petitioner contacted representatives of the Hernando County Commission relative to county funding of at least a portion of that local source of matching funds required to make up at least 25 percent or the overall proposed operating budget as required by Florida Statutes and as set out in the proposal. At that time, Petitioner was advised that while the Commission supported the Petitioner's proposal in concept and fully hoped to lend its financial support, it could not officially do so until after the county's budget hearings were completed and it was determined that the requested funds were in fact available. A letter to this effect was submitted to Ms. Laxton by the Chairman of the Commission on June 7, 1983. In the interim, before the proposal was submitted, both Ms. Tucker and Ms. Mulrooney discussed this possible defect, as well, with Ms. Laxton. Again, both ladies contend Ms. Laxton advised them this criterion could be waived, as well. Petitioner submitted its proposal on time. However, at the time of submittal, the Petitioner was not in fact incorporated. The proposed corporate charter was forwarded to the Secretary of State on June 2, 1983 (a letter to this effect was sent the same day to Ms. Laxton by Petitioner's attorney), and approved on June 13, 1983. Also, at the time of submission, the proposal listed as budgeted resources donated land and two homes having a rental value of $4,800 per year as an in-kind resource, $182 as cash client contributions and $3,750 as a cash contribution by the Hernando County Commission. It is this last funding source that was committed in theory only and was not firm. Taken together, the three sources totaled $8,732, which would be slightly over 28 percent of the total yearly budget of $31,052. However, since the commitment from the County Commission was not firm and was contingent on funds being available, it could not be considered; and the remaining sum of $4,982 is only 16 percent of the budget. Ms. Laxton admits talking with both Tucker and Mulrooney on several occasions about the proposal and the difficulties they were having. They indicated to her they were having problems getting incorporated, but that their attorney was working on it. She admits telling them to send whatever they had, which included a status letter from their attorney. She also admits stating to them that some requirements of the RFP could be waived, but does not think incorporation was one and is sure she did not tell them the matching funds requirement could be waived. After hearing the evidence presented and considering it along with its relative probabilities and improbabilities, it is found that the Petitioner's representatives may have reasonably inferred the incorporation requirement could be waived. However, it is unlikely that Ms. Laxton would have even inferred anything as significant and sensitive as a matching fund requirement could be waived. If Ms. Tucker and Ms. Mulrooney inferred that from Ms. Laxton's comments, it was unfortunate, but in error. In fact, the County Commission did ultimately approve a commitment to Petitioner in the amount of $3,750. They have also received additional cash contributions of $2,300 and additional in-kind contributions of $5,000. None of these latter resources were in hand or firmly committed by the June 3, 1983 proposal submission deadline, however. At the present time, Petitioner is operating a shelter without Respondent's funds. They have requested assistance from the successful bidder, but have been turned down. There is, however, substantial but non-financial community support for Petitioner's operation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's protest be rejected. RECOMMENDED this 4th day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1984. COPIES FURNISHED: LINDA TREIMAN, ESQUIRE 11 NORTH MAIN STREET BROOKSVILLE, FLORIDA 33512 JAMES A. SAWYER, JR., ESQUIRE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1000 N.E. 16TH AVENUE BUILDING H GAINESVILLE, FLORIDA 32601 MR. DAVID PINGREE SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32301
The Issue The issue for determination in this proceeding is whether NME Hospitals, Inc., d/b/a Hollywood Medical Center (HMC), is entitled to a certificate of need to convert 30 existing medical-surgical beds to 30 short term psychiatric beds at its hospital located in Hollywood, Florida.
Findings Of Fact Background Information Hollywood Medical Center (HMC) is owned and managed by its parent company, NME Hospitals, Inc. NME Hospitals, Inc., is a wholly owned subsidiary of National Medical Enterprises, Inc. (NME), a Nevada corporation headquartered in California. HMC is a 334-bed acute care hospital located in Hollywood, Florida. HMC is a full service hospital with an emergency room, a nine-suite operating unit, an intensive care unit, a coronary care unit, a 40-bed telemetry unit, a progressive care unit, and a dedicated oncology unit. HMC has a medical staff of more than 400 physicians with virtually every medical specialty represented, including psychiatrists. In addition, it is accredited by the Joint Commission on Accreditation of Healthcare Organizations. Hollywood is in the southern portion of Broward County, which is the only county in HRS Service District 10. The primary service area of HMC is the southern portion of Broward County, generally described as between State load 84 on the north and the Broward/Dade County line on the south. HMC is located in a peaceful and serene residential area. A high percentage of elderly people reside in condominiums which surround the hospital. One of the largest condominium developments in South Broward County is located within walking distance of HMC. Almost all of the programs at HMC are geared toward elderly patients; HMC does not even offer pediatric or obstetrical services. In September 1988, HMC filed a CON application to convert 30 of its existing medical-surgical beds to short term psychiatric beds. The proposal calls for the conversion of existing space on the sixth floor of the hospital. The total project cost is $864,545.00. HMC's application was comparatively reviewed by HRS with an application by the South Broward Hospital District d/b/a Memorial Hospital ("Memorial") to add 30 additional short term psychiatric beds to its facility which is also located in Hollywood, Florida. In its State Agency Action Report ("SAAR"), HRS preliminarily denied both applications. Both HMC and Memorial filed Petitions for Formal Administrative Hearings challenging their respective denials. These Petitions were referred to the Division of Administrative Hearings and consolidated by Order dated March 28, 1989. On August 17, 1989, Memorial voluntarily dismissed its petition for Formal Administrative Hearing. HMC's Proposal The elderly have unique psychiatric as well as medical needs. For example, the elderly have a much higher incidence of medically related nervous system disorders. In addition, the elderly experience certain psychiatric syndromes such as bipolar and manic depressive disorders and organic brain syndrome much more commonly than the rest of the population. Many of the elderly with psychiatric disorders have concomitant physical or medical problems such as cerebral vascular problems, arteriosclerosis, pulmonary problems, arthritic problems, physical disabilities, and mental impairments caused by senile dementia. The availability of medical treatment is a significant consideration in the selection of the appropriate treatment setting of elderly psychiatric patients who also suffer from one or more physical or medical problems. HMC believes there is a need for additional short term psychiatric services in its service area. In keeping with its goal of being a full service hospital capable of providing a full continuum of care to the patients in its service area, HMC seeks to fill this perceived need by offering such services at its own facility. The need perceived by HMC was based in large part on in-house physicians informing HMC's hospital administration that the physicians felt there was a need for such services. In its application, HMC proposes a separate geri- psychiatric unit with programs focused on the specific needs of geriatric psychiatric patients with multi-medical problems. The principal difference between such a specialized unit and an ordinary psychiatric unit is in the nature of the staffing and the training given to staff. Staff in a geri-psychiatric unit need to be prepared to address more multi-medical problems than are customarily encountered in a general psychiatric unit. Rather than proposing to add new beds to the facility, HMC decided it would be much more economical and cost efficient to convert some of its existing and unused medical- surgical beds to short term psychiatric beds. In this regard, a high percentage of HMC's licensed medical-surgical beds are empty, with the facility experiencing an average daily census of only 110 patients in its 334 licensed beds. Findings Regarding Section 381.705(1)(a), F.S. Section 381.705(1)(a), Florida Statutes, requires HRS to review applications for CONs in relation to the applicable district plan and state health plan. The State Health Plan in effect at the time HMC's application was filed (and as of the date of final hearing) was published in 1985 and established goals for 1987. Because the planning horizon applicable to HMC's application is 1993, the goals of the applicable State Health Plan are not particularly relevant to HMC's application. HMC's application is consistent with several of the goals contained in the Local Health Plan. Specifically, the Local Health Plan identifies the elderly as an under-served group and encourages the conversion of under-utilized medical-surgical beds to other needed services. HMC's application is consistent with these goals because it proposes the conversion of under- utilized medical- surgical beds to a geri-psychiatric unit. In this regard, according to HRS' acute care bed need methodology, in 1993 District 10 will have over 1,200 excess medical-surgical beds. HMC's application is not consistent with that portion of the Local Health Plan which states that planning should be on a district-wide basis. Findings Regarding Sections 381.705(1)(b) and (2)(d), F.S. Existing Providers Section 381.705(1)(b), Florida Statutes, requires HMC's application to be reviewed against the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services in the service district of the applicant. In this regard, there are eight existing providers of short term psychiatric services in Broward County. Four of these providers are free-standing psychiatric hospitals. They are: Coral Ridge Psychiatric Hospital ("Coral Ridge"), CPC Fort Lauderdale Hospital, The Retreat, and Hollywood Pavilion Psychiatric Hospital ("Hollywood Pavilion"). Coral Ridge and CPC Fort Lauderdale Hospital are located north of State Road 84 in northern Broward County. The Retreat is located in western Broward County, south of State Road 84 Hollywood Pavilion is located in southern Broward County, across the street from the applicant, HMC. The existing acute care hospitals in Broward County that have psychiatric units are: Broward General Medical Center ("Broward General") , Florida Medical Center, Imperial Point Hospital, and Memorial Hospital. Broward General, Florida Medical Center, and Imperial Point Hospital are all located north of State Road 84. Memorial Hospital is located in southern Broward County, about a half mile from HMC. The existing providers of short term psychiatric services in Broward County have a total of 507 existing short term psychiatric beds, distributed as follows: South Broward Memorial Hospital 74 Hollywood Pavilion 46 The Retreat 80 (of which 24 are geriatric) North Broward Coral Ridge 74 Fla. Medical Center 74 (of which 10 are geriatric) CPC Ft. Lauderdale 64 Broward General 48 Imperial Point 47 (of which 8 are geriatric) The utilization or occupancy rates (expressed in percentages) for the seven Broward County providers of short term psychiatric services which were in operation during 1987 and 1988 were as follows: Facility Cal. Yr. 7/87 thru Cal. Yr. 1987 6/88 1988 Private Facilities Fla. Medical Center 57.3 63.0 67.3 CPC Ft. Lauderdale 42.2 43.5 52.0 Coral Ridge 19.9 20.8 [unk.] Hollywood Pavilion 34.0 61.7 59.2 Average pvt. utilization 38.4 47.3 [unk.] Public Facilities Broward General 94.0 88.9 86.3 Imperial Point 91.0 92.7 92.4 Memorial 91.8 91.7 94.8 Average pub. utilization 92.3 91.1 91.2 Average of all 7 21. On May 9, 1986, the 62.3 Florida 66.0 Psychiatric [unk.] Center, d/b/a The Retreat, was issued a certificate of need to construct a 100-bed facility in Broward County consisting of 80 short term psychiatric beds and 20 short term substance abuse beds. The 80 psychiatric beds were divided into 40 geriatric beds, 15 adolescent beds, and 25 adult beds. The Retreat began operation in late September of 1988. By mid-March of 1989, the Retreat was requesting that HRS grant it a modification of its certificate of need to reduce the number of geriatric beds from 40 to 24 and to redesignate the remaining 16 beds for short term psychiatric services for children under the age of 12. The Retreat's request to reduce the number of geriatric beds appears to have been motivated in large part by the fact that the occupancy rate for those beds from October 1988 through March 1989 never exceeded one percent, even though the Retreat's pro forma had projected 70 percent occupancy after six months of operation. During the same six-month period in which the Retreat achieved only one percent occupancy in its geriatric psychiatric unit, it achieved occupancy rates of 77 percent in its adolescent unit and 86 percent in its adult unit. The Retreat is a private facility. For some elderly psychiatric patients it is advantageous to provide in-patient psychiatric care in an acute care facility rather than in a free- standing facility. This is because many geriatric patients have a variety of, or multiple levels of, health care needs. An acute care facility that offers psychiatric services can take higher acute types of psychiatric patients because it has the resources, support, and back-up should a patient become medically unstable. In this regard, geriatric psychiatric patients often do not have a pure psychiatric illness. Rather, their psychiatric condition is often accompanied by a medical condition requiring medical coverage. These considerations are addressed in HRS' need determination rule. North/South Division HRS recognizes that there tends to be a north/south division in Broward County with respect to the delivery of acute care health services. In this regard, HRS acknowledges that individuals in South Broward County who are in need of acute care services will generally not travel to acute care hospitals located in north Broward County and vice versa. Broward County has been divided into two political taxing subdivisions, the North Broward Hospital District and the South Broward Hospital District, for purposes of providing tax revenues for the provision of health care services to the indigent. Memorial is the only district hospital located in the South Broward Hospital District. Memorial has a rule requiring physicians on staff at Memorial to both reside within the boundaries of the South Broward Hospital District and to have their offices located within said district. As a general rule, psychiatric patients residing south of State Road 84 tend to stay in southern Broward County for purposes of obtaining psychiatric services and psychiatric patients residing north of that line tend to stay in northern Broward County for purposes of obtaining psychiatric services. This appears to be due in large part to the fact that psychiatrists tend to obtain staff privileges and practice only at hospitals in southern Broward County or northern Broward County, but not both. If a physician is not on the staff of a facility, he or she cannot admit a patient to that facility. Therefore, the numerous psychiatrists who reside in southern Broward County and who are only on the staff of facilities located in southern Broward County generally cannot admit their patients to facilities located in northern Broward County. Unavailability of beds at Memorial and Hollywood Pavilion South of State Road 84 there are three available alternatives for inpatient psychiatric care for the elderly residents of southern Broward County; The Retreat, Hollywood Pavilion, and the 74-bed short term psychiatric unit at Memorial Hospital. Hollywood Pavilion and Memorial Hospital accept geriatric psychiatric patients, but neither has a designated geri-psychiatric unit. The Retreat started operations with a 40- bed geri-psychiatric unit, which has since been reduced to a 24- bed unit. The 74 psychiatric beds at Memorial are, for all practical purposes, operating at full capacity. Memorial has maintained waiting lists for its psychiatric unit for the last seven or eight years and the number of people on the waiting lists has been increasing. The 46 psychiatric beds at Hollywood Pavilion, which is located across the street from Memorial, have recently been operating at about sixty percent of capacity. It is often clinically desirable to treat geriatric psychiatric patients on a different unit from younger psychiatric patients. This consideration is reflected in the fact that The Retreat was originally approved for three distinct units, adolescent, adult, and geriatric, and has more recently been permitted to redesignate a unit of beds for short term psychiatric services for children under the age of 12. The 24- bed geriatric psychiatric unit at The Retreat has recently been operating at about two percent of capacity. Findings Regarding Section 381.705(1)(d), F.S. Section 381.705(1)(d), Florida Statutes, requires consideration of the availability and adequacy of other health care services such as outpatient care and ambulatory or home care services which may serve as alternatives for the services proposed by the applicant. On this issue, there was no real dispute that outpatient care and ambulatory or home care services were not viable alternatives for persons in need of short term inpatient psychiatric services. Findings regarding Section 381.705(1)(i), F.S. As noted above, HRS stipulated that if HMC's project was approved and met the occupancy projections contained in its application it would be financially feasible. The financial break-even point for the 30 psychiatric beds proposed by HMC is an average daily census of only 9 patients, which would constitute 30 percent occupancy. The psychiatric unit at HMC would be managed by a professional psychiatric management company, Psychiatric Management Services. Psychiatric Management Services is a company that specializes in the management of psychiatric units in acute care hospitals. It has already developed psychiatric programs for geriatric patients that would be utilized at HMC. In addition, Psychiatric Management Services has a large variety of programs, services and specialists available to assist HMC in establishing the proposed unit. Through Psychiatric Management Services, the proposed unit will have access to a wide variety of services, including but not limited to, marketing, community liaison development, sophisticated policies and procedures manuals, accreditation services, licensure, staffing and community education seminars. Approval of HMC's application would also give HMC an opportunity to attempt to broaden its base of business and thereby possibly increase the overall profitability of the hospital. This would, if successful, help relieve the cost pressures from the acute care side of the hospital and potentially lower future increases in acute care patient charges. Moreover, by expanding the services offered at HMC, approval of HMC's applications would allow HMC to compete more effectively for health maintenance organizations (HMOs) and preferred provider organizations (PPOs) agreements. Currently, HMC is precluded from competing for some HMOs and PPOs such as SIGNA and Health Options because HMC does not offer a full array of services. Approval of HMC's application would also have the effect of adding 30 more beds to the existing pool of under- utilized short term psychiatric beds in Broward County. Findings regarding Section 381.705(1)(n), F.S. In its application, HMC projects a higher Medicaid utilization rate in its psychiatric unit than for its hospital overall because Medicaid services can only be provided to psychiatric patients in an acute care hospital setting and the psychiatric beds at Memorial, the only acute care facility in South Broward County presently authorized to provide psychiatric services, are full. In this regard, HMC has a Medicaid contract with the State of Florida. It is reasonable to anticipate that HMC would encourage Medicaid business at its facility and achieve the Medicaid projection contained in its application because HMC receives more from the State of Florida under its Medicaid contract than it would from an HMO or PPO. It is HMC's policy to treat all patients, regardless of their ability to pay. If HMC's application is approved, this policy would apply to psychiatric patients admitted to the hospital. During the first six months of 1988, 2.2 percent of HMC's patient days were provided to indigents. HMC currently averages 60 to 70 percent Medicare utilization. For its proposed geri-psychiatric unit, HMC projects 70 percent Medicare utilization. Given that the proposed unit would be geared toward the elderly, it is reasonable to project that 70 percent of HMC's geri-psychiatric utilization would be Medicare patients, regardless of what the total utilization rate might be. Findings regarding Section 381.705(2)(a), F.S. The design of HMC's proposed geri-psychiatric unit conforms to the requirements contained in Chapter 10D-28, Florida Administrative Code. As noted above, HRS stipulated that the costs and proposed methods of construction are reasonable. The psychiatric unit at HMC would occupy existing space on the sixth floor of the hospital. The renovations can be made quickly and at substantially less expense than the cost of new construction. Nevertheless, a less costly, more efficient, and more appropriate alternative would be to make greater use of existing under- utilized short term psychiatric beds in Broward County, particularly the beds in the privately owned facilities, which are Florida Medical Center, CPC Ft. Lauderdale, Coral Ridge, Hollywood Pavilion, and the Retreat. Findings regarding Section 381.705(2)(b), F.S. To the extent the three publicly owned providers of short term psychiatric services are being operated at or near their optimal capacity, they are being used in an appropriate and efficient manner. To the extent some of such facilities, like Memorial Hospital, appear to be operating above their optimal capacity, some inefficiencies necessarily result. Similarly, inefficiencies necessarily result from the substantial under- utilization of beds in privately owned short term psychiatric units. Approval of a new psychiatric unit at an existing acute care hospital in southern Broward County might help alleviate the waiting list and over crowding at Memorial, but it would do so at the expense of adding to the inefficiencies that result from current under-utilization of other existing facilities. Further, in light of recent utilization trends in Broward County, if short term psychiatric beds were to be added in Broward County, it would appear to be more appropriate to add them at publicly owned facilities. Findings regarding Rule 1O-5.O11(1)(o)3 and 4, F.A.C. Rule 10-5.011(1)(o), Florida Administrative Code, provides that a CON application for short term psychiatric beds will "not normally" be approved unless need is indicated in accordance with the mathematical need formula contained in the short term psychiatric rule. That rule allocates .35 beds per 1,000 population based on a five-year planning horizon. Since the application was submitted in 1988, the five-year planning horizon requires that HMC's application be reviewed against the need projected for 1993. The parties agreed that the numerical bed need methodology projects a gross bed need for 458 short term psychiatric beds in Broward County in 1993. However, the parties disagreed on the inventory of beds that should be subtracted from this figure. The inventory of 507 existing and approved short term psychiatric beds relied upon by HRS includes the 74 beds at Coral Ridge Hospital. The beds at Coral Ridge are licensed as short term psychiatric beds. The average length of stay of psychiatric patients at Coral Ridge has usually been in excess of 30 days, but substantially less than 90 days. The average length of stay at Coral Ridge does not appear to result from treatment of adolescent patients. Subpart 4a of Rule 10-5.011(1)(o) provides that a minimum of .15 beds per 1,000 population shall be in hospitals holding a general license and Subpart 4b provides that .20 beds per thousand may be in specialty hospitals. The .15 standard is currently met in Broward County. The short term psychiatric rule requires applicants to be able to project occupancy rates of 70 percent for adults in the second year of operation and 80 percent for adults by the third year of operation. In light of the utilization rates of existing privately owned providers of short term psychiatric services, and especially in light of the most recent utilization rates in the geriatric psychiatric unit at The Retreat, it is unlikely that HMC would achieve these occupancy rates. The short term psychiatric bed need rule also considers the occupancy of existing psychiatric beds. In this regard, HRS agreed that a 70 percent occupancy figure was the appropriate figure to be applied in this case. As noted in paragraph 20 of these findings of fact, during the twelve-month period prior to submission of HMC's application, the average occupancy of short term psychiatric beds in Broward County was only 66 percent. Subpart 4g of Rule 10-5.011(1)(o) provides that short term inpatient psychiatric hospital based services should have at least 15 designated beds. By proposing to convert 30 beds, HMC's application meets this criterion of the Rule. Findings regarding Rule 1O-5.O11(1)(o), F.A.C. Regarding Subpart 5e of Rule 10-5.011(1)(o), Florida Administrative Code, an important component of the proposed psychiatric unit would be the community education and outreach services described in HMC's application. These services, which would be provided at no cost to local residents, are representative of HMC's commitment to developing a cooperative relationship with existing providers. As an existing hospital, HMC has already established linkages with numerous health care providers. If its application were to be approved, HMC would expand its existing network to include community mental health centers and other local providers of mental health services.
Recommendation For all of the foregoing reasons, it is RECOMMENDED: That the application by NME Hospitals, Inc., d/b/a Hollywood Medical Center, to convert 30 medical-surgical beds to 30 short term psychiatric beds be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1989. MICHAEL M. PARRISH 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 Divisions of Administrative Hearings this 22nd day of November 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1369 The following are my specific rulings on all findings of fact proposed by both parties. Findings proposed by Petitioner: Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as not supported by persuasive competent substantial evidence and as, in any event, unnecessary. Paragraphs 4, 5, 6, 7, 8, 9 and 10: Accepted. Paragraphs 11 and 12: Accepted in substance. Paragraphs 13, 14, and 15: Accepted. Paragraph 16: Rejected as unnecessary and as not fully consistent with the greater weight of the evidence. Paragraphs 17 and 18: Accepted. Paragraph 19: First sentence accepted. Last sentence rejected as constituting argument rather than findings of fact. Paragraph 20: Rejected as constituting a proposed conclusion of law rather than a proposed finding of fact. Paragraphs 21, 22, and 23: Accepted in substance. Paragraph 24: Rejected as not supported by persuasive competent substantial evidence. Although there is expert witness testimony in the record to the effect proposed in paragraph 24, I do not find that testimony to be persuasive. Specifically, I am not persuaded that the relationship between a patient and the patient's regular medical doctor is more severely impacted in a freestanding psychiatric facility than in a psychiatric facility located in an acute care facility. There are advantages and disadvantages to both types of psychiatric facilities. Paragraph 25: Rejected as repetitious. Paragraph 26: Rejected as subordinate and unnecessary details. Also, see comments above regarding paragraph 24. Paragraph 27: Rejected as constituting argument or proposed conclusions of law, rather than proposed findings of fact. Paragraph 28: Accepted. Paragraph 29: Rejected as constituting subordinate and unnecessary details. Paragraph 30: Accepted. Paragraph 31: First sentence rejected as constituting a broader statement than is supported by the competent substantial evidence. The remainder of this paragraph is accepted in substance. Paragraphs 32 and 33: Rejected as constituting subordinate and unnecessary details. Paragraph 34: Accepted. Paragraph 35: Rejected as irrelevant and as based on unpersuasive evidence. Although there is testimony to the effect that the considerations recited are significant considerations, it appears from the totality of the evidence that considerations of treating physician convenience (or efficiency) and where the treating physician has admitting privileges, are the primary determinants of patient placement. Paragraph 36: Rejected because this is a conclusion that does not necessarily follow from the evidence. [See Transcript, page 263, lines 5 to 10.] Paragraph 37: Rejected as not supported by persuasive competent substantial evidence. Although the record does contain opinion testimony to the general effect proposed here, the scope of that opinion testimony is more narrow than the fact proposed in paragraph 37. The testimony would support a finding that the Retreat is inconveniently located for some South Broward psychiatrists. Paragraph 38: First sentence rejected as not supported by persuasive competent substantial evidence. Second sentence rejected as contrary to the greater weight of the evidence. Paragraph 39: Accepted in substance. Paragraph 40: All but last sentence accepted in substance. Last sentence rejected as subordinate and unnecessary details. Paragraph 41: Rejected as quotation of testimony rather than proposed finding of fact. Also rejected as subordinate and unnecessary details. Paragraphs 42, 43 and 44: Rejected as subordinate and unnecessary details. Paragraph 45: First two sentences accepted. The remainder of this paragraph is rejected as not supported by competent substantial evidence. Although statements in the transcript, in depositions, and in affidavits contain opinions that Hollywood Pavilion offers quality of care that is "unacceptable" or "substandard," none of those opinions includes any factual basis for the opinion. (Ironically, the record contains more information about shortcomings in the psychiatric unit at Memorial Hospital; the unit with the highest occupancy rate and, therefore, presumably the most popular.) Paragraph 46: Rejected as not supported by persuasive competent substantial evidence. See comments above regarding paragraph 45. Paragraphs 47, 48, 49, 50, 51 and 52: Rejected as subordinate and unnecessary details. Paragraphs 53 and 54: Accepted. Paragraph 55: Rejected as irrelevant and unnecessary details, not all of which are fully supported by the evidence. For example, while the last sentence of paragraph 55 is sometimes true, it is not always true because if it were always true there would be precious little need for free standing psychiatric facilities. Paragraphs 56 and 57: Accepted. Paragraph 58: Accepted in substance with many subordinate and unnecessary details omitted. Paragraph 59: All but last sentence accepted. Last sentence rejected as contrary to the greater weight of the evidence. Paragraph 60: First sentence rejected as subordinate and unnecessary. Remainder of paragraph rejected as contrary to the greater weight of the evidence. Paragraph 61: Rejected as irrelevant and as not supported by persuasive competent substantial evidence. The testimony on this subject was too vague and generalized to form a basis for meaningful fact finding relevant to any issue in this case. Paragraphs 62 and 63: Accepted in substance. Paragraph 64: Rejected as contrary to the greater weight of the evidence. Paragraphs 65, 66, 67 and 68: Accepted. Paragraph 69: Accepted in substance. Paragraph 70: First two sentences accepted in substance. Last two sentences rejected as irrelevant as well as subordinate and unnecessary details. Paragraph 71: Rejected as contrary to the greater weight of the evidence. Paragraph 72: First sentence rejected as over broad and, therefore, not supported by competent substantial evidence. Also rejected as containing a conclusion not warranted by the evidence. Paragraph 73: Accepted. Paragraph 74: All but last sentence accepted. Last sentence rejected as constituting incomplete summary of rule definition. Paragraph 75: Accepted in substance. Paragraph 76: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Paragraph 77: Rejected as contrary to the greater weight of the evidence. Paragraph 78: Rejected as irrelevant in view of conclusion that the beds at Coral Ridge should be included in the inventory. Paragraph 79: Rejected as contrary to the greater weight of the evidence. Second sentence also rejected as constituting argument, rather than proposed findings of fact. Paragraph 80: Rejected as irrelevant, except for proposed findings regarding occupancy at The Retreat. Paragraph 81: Accepted. Paragraph 82: First sentence accepted. Last sentence rejected as contrary to the greater weight of the evidence. Paragraph 83: First two sentences accepted. Last sentence rejected as irrelevant because there is no demonstrated reason to exclude Coral Ridge. Paragraph 84: Accepted in substance. Paragraph 85: Rejected as not supported by competent substantial evidence. Paragraph 86: Rejected as contrary to the greater weight of the evidence. Paragraph 87: Accepted. Paragraph 88: Rejected as repetitious. Further, last sentence is not fully consistent with the greater weight of the evidence. Paragraphs 89 and 90: Accepted. Paragraph 91: Rejected as constituting a conclusion of law rather than a proposed finding of fact. Paragraphs 92 and 93: Rejected as constituting argument about the sufficiency of the evidence, rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1, 2 and 3: Rejected as constituting subordinate procedural details which have been addressed in the Preliminary Statement. Paragraph 4: First two sentences accepted. The remainder is rejected as subordinate and unnecessary details. Paragraph 5: Rejected as constituting subordinate and unnecessary details or constituting argument and proposed conclusions of law. Paragraph 6: Rejected as constituting primarily argument and proposed ultimate conclusions rather than proposed findings of fact. Paragraph 7: First two lines of first sentence accepted. Remainder of first sentence rejected as argument. Second sentence rejected as irrelevant in view of HRS agreement that 70 percent occupancy was the appropriate standard. Third sentence accepted. Fourth sentence rejected as irrelevant. Fifth and sixth sentences rejected as argument. Paragraph 8: First and last sentences rejected as argument. Remainder rejected as subordinate and unnecessary details. Paragraph 9: First two sentences rejected as argument. Third and fourth sentences rejected as subordinate and unnecessary. Fifth and sixth sentences rejected as argument and comment on the testimony. Seventh, eight, and ninth sentences rejected as subordinate and unnecessary. Tenth sentence accepted in substance. Eleventh and twelfth sentences rejected as commentary on the evidence. Last sentence rejected as argument or ultimate conclusion. Paragraphs 10 and 11: Rejected as constituting primarily argument rather than proposed findings of fact. Paragraph 12: Rejected as constituting conclusion of law rather than proposed findings of fact. Paragraph 13 and the unnumbered paragraph following paragraph 13: Rejected as constituting discussion of the issues rather than proposed findings of fact. Paragraph 14: First two sentences rejected as discussion of issues, rather than proposed findings of fact. The remainder of this paragraph is accepted in substance, but with many unnecessary details omitted. Paragraph 15 and the unnumbered paragraph following paragraph 15: Rejected as constituting discussion of the issues, rather than proposed findings of fact. Paragraph 16 and 17: Accepted in substance with many unnecessary details omitted. Paragraph 18: First two sentences accepted in substance. The remainder of this paragraph is rejected as constituting discussion of issues or conclusions of law. Paragraph 19: Accepted in substance with many unnecessary details omitted. Paragraph 20: Rejected as constituting an amalgamation of conclusions of law, discussions of the issues, and argument. COPIES FURNISHED: C. Gary Williams, Esquire Stephen C. Emmanuel, Esquire Ausley, McMullen, McGehee, Carothers & Proctor 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 Deanna Eftoda Department of Health and Rehabilitative Services 2727 Mahan Drive Suite 103 Fort Knox Executive Center Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
