Findings Of Fact Introduction On August 15, 1983, petitioner, Rehab Hospital Services Corporation (Rehab), filed an application with respondent, Department of Health and Rehabilitative Services (HRS), seeking a certificate of need authorizing the construction and operation of a 40-bed comprehensive medical rehabilitation hospital in Volusia County, Florida. The proposed cost was then estimated to be $7.2 million. A rehabilitation facility is one which provides a program of comprehensive medical rehabilitation services and which is designed, equipped, organized and operated to deliver such services. According to Rule 10-5.11(24), Florida Administrative Code, a comprehensive medical rehabilitation service is defined as "intensive care providing a coordinated multi-disciplinary approach to patients with severe physical disabilities such as spinal cord injury, brain injury, stroke, multiple sclerosis, cerebral palsy, hemiplegia, quadriplegia, paraplegia, and other physical disabilities which require an organized program of integrated and coordinated services." After reviewing the application, HRS issued its proposed agency action on January 19, 1984 wherein it proposed to deny the application for the following general reasons: Using the rehabilitation bed need methodology presented in Chapter 10-5.11(24)c, FAC, and subtracting away from this need the current number of rehabilitation beds in the service districts there exists an excess of 55 rehabilitation beds. Further, the occupancy standard presented in Chapter 10-5.11(24)c, FAC, of 85 percent, for existing rehabilitation beds before additional beds can be approved has not been met. The agency's decision prompted this proceeding. Applicants Proposal Petitioner is an experienced health care provider. It currently owns and operates some nine hospitals throughout the United States, of which at least seven are comprehensive rehabilitation facilities. Most recently, Rehab was issued a certificate of need to construct and operate a tenth rehabilitation facility in Melbourne, Florida. Rehab proposes to construct a 40-bed comprehensive medical rehabilitation hospital in Volusia county. Although a specific site has not been determined, the facility will probably be built in Daytona Beach just north of U.S. 92 and south of Mason Avenue. The revised cost is $6.9 million. In the new facility, Rehab intends to offer or make available at a minimum the following rehabilitation services: physician services, nursing services, physical therapy, speech therapy, prosthetic orthopedic and stroke devices and services, inhalation therapy, psychological services, occupational therapy, skilled rehabilitation nursing care, dietary services, social work and vocational evaluation work adjustment. The facility will be accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF). All necessary specialized staff will be available and hired by Rehab. Daytona area acute care hospitals will provide hospital services such as high technology radiology, IV preparation and drug toxic testing. In addition, Rehab will be able to develop cooperative arrangements and a formal referral system with local acute care hospitals, neurologists, orthopedists, psychiatrists, local physicians and community organizations such as Easter Seals. After the proposed agency action was issued, but prior to final hearing, Rehab and Memorial Regional Rehabilitation Center, Inc. (Memorial), a rehabilitation hospital in Jacksonville, entered into a joint venture whereby Memorial would transfer twenty of its unused licensed beds to Rehab for its new facility. The agreement further provided that the two would be equal partners in the new venture. Therefore, Rehab is seeking to add only twenty beds to the District count. Applicant's primary service area will be Volusia County, which had a 1980 population of 329,000. That figure is projected to increase 37 percent by the year 1990. The only other center of population in the service district is Jacksonville, where the population was 594,000 in 1980. Given this maldistribution of population within the service district, the projected growth in the Daytona area, and the fact that only one other rehab facility is located within the district, Rehab contends that a new facility in the Daytona area is justified. Competing Facilities The proposed facility lies within HRS District IV which includes Baker, Nassau, Duval, Clay, St. Johns, Flagler and Volusia Counties. The two principal population centers within District IV are Jacksonville and Daytona. At the present time there is only one existing comprehensive medical rehabilitation hospital within District IV. That facility is Memorial in Jacksonville. Memorial, which initially opposed but now supports the application, is licensed to operate a 128-bed facility. However, its physical plant can accommodate only 110 beds. In addition to Memorial, there are two rehab facilities in the Orlando area, which lies in adjacent District VII. These are Florida Hospital and Humana Lucerne with 49 and 35 beds, respectively. However, Humana Lucerne confines its admissions principally to spinal cord injuries, while Florida Hospital focuses chiefly upon stroke victims. Need for Facility in Relation to State and District Health Plans (Subsection 381.494(6)(c)1.,F.S.) The applicable State Health Plan (Plan) was not made a part of this record by either party. However, the application states that the Plan does not include criteria or standards for the determination of comprehensive physical rehabilitative bed need. Although the agency witness stated that the Plan "reiterates the criteria that are found in Chapter 10-5.11(24)," he did not provide any specific references in the rule or Plan to support this statement, or how the proposal was inconsistent with the Plan. Accordingly, it is found that the Plan has no applicability to this proceeding, and applicant need not demonstrate that its proposal is consistent with the Plan. The District IV Health Plan (DHP) is prepared by the Health Planning Council of Northeast Florida, Inc. (Council). Copies of relevant portions of the 1985, 1984 and 1983 DHP's were introduced into evidence as petitioner's exhibits 11, 12 and 13, respectively. The parties have stipulated that the 1985 DHP contains two relevant recommendations: (a) that HRS not give consideration to approving additional comprehensive rehabilitation beds in District IV through the year 1986, at which time the Council would again review this recommendation, and (b) that HRS consider the transfer of comprehensive medical rehabilitation beds from Duval County to Volusia County as long as the total number of beds in the district does not increase. It is apparent, then, that Rehab's proposal is only partially consistent with the District Health Plan. In making the above two recommendations, the Council's Executive Director acknowledged that there "is very little interaction between the northern and southern population concentrations" of the District, as well as "the health delivery systems located therein." Further, he agreed that the health delivery systems in Jacksonville and Daytona are essentially independent from one another. The 1985 Plan also premised its recommendations in part upon the assumption that HRS rules "allow an exception to the need methodology if 10 percent of the population live more than two hours normal travel time from a center. Populous Volusia County does not qualify for the exception because other centers outside the district are within the two hour limitation." In fact, there are no HRS rules defining accessibility to be when 90 percent of a district's population lives within two hours driving time of a rehabilitation facility. The Council also made no travel time studies to verify its assumption relative to the two hour travel time within the district, made no investigation as to the number of Volusia County residents utilizing non-district hospitals, and was not aware of admission policies for rehab patients at other facilities outside the district, or the fact that one Orlando hospital principally confines its rehab admissions to spinal cord cases. The DHP also recognizes that if rapid growth continues, "a comprehensive rehab center for the area may become appropriate" at some point in time. In view of the flaws in the assumptions which underpin the DHP recommendations, the consistency or inconsistency of Rehab's proposal with the DHP should be given only minimal weight in relation to the other applicable statutory and rule criteria. A proposal does not need to be consistent with the district and state health plans whenever there are "emergency circumstances which pose a threat to the public health." In this case, there are no such emergency circumstances, and therefore the exception does not apply. Availability Quality of Care, Efficiency, Appropriateness, Accessibility, Extent of Utilization, and Adequacy of Like and Existing Health Care Services in the Service District (Subsection 381.494(6)(c)2., F.S.) Rule 10-5.11(24), Florida Administrative Code, establishes the methodology for determining and projecting the need for rehabilitation beds within a district. It is noted that, unlike other methodologies which determine need on a subdistrict basis, need is calculated for rehab beds on a district- wide basis. The parties have stipulated that the present inventory of rehabilitation beds in District IV is 128, all licensed for Memorial's facility in Jacksonville. Using the formula in paragraph (b)1. of the rule, it results in a district- wide need of 79 beds in the planning horizon year of 1990. This in turn produces 49 excess beds at the present time in District IV since the present inventory numbers 128 beds. Therefore, even though Memorial does not have available the entire complement of 128 beds this portion of the rule has not been satisfied. Rule 10-5.11(24) contains "other factors to be considered in determining a need for comprehensive medical rehabilitation services, in addition to relevant statutory and rule criteria." These factors are set forth in subparagraph (b)2. of the rule. In addition, standards and criteria relative to unit size, occupancy, accessibility programs and services, accreditation, variable and optional services, and transfer and referral agreements must also be considered. These are contained in subparagraphs (b)3.-6. of the rule. In relation to the criteria set forth in subparagraph (b)2.a.-d. studies compiled by Rehab, as set forth in its exhibit 31, reveal that Volusia's population is projected to grow by 37 percent between 1980 and 1990, and that the 65 and over age segment is forecast to be the fastest growing segment of the population. This is particularly significant since testimony by Daytona area physicians established that a great number of their patients in need of rehabilitative services come from the elderly segment of the population. In addition, Volusia is projected to have 792 rehabilitation discharges in 1990 as compared with 883 in Duval. This indication of disabling conditions and chronic illness suggests a need for rehabilitation beds in the southern portion of the district. With respect to trends in utilization by third party payers, Rehab proposes to make its facility available to all level incomes and to seek a Medicaid contract. By doing the latter, it projects 53 percent Medicare patients in its first year of operation. Next, through testimony from Daytona area physicians it was established that the "existing and projected inpatients in need of rehabilitation services" are on the rise, and provide further support for the establishment of a new facility. Finally, Rehab proposes to have available a "specialized staff" as required by the rule. Accordingly, the criteria in subparagraphs (b)2.a.-d. have been satisfied and militate towards favorable action on the application. Rule 10-5.11(24)(b)3.a. requires that any new facility have no less than forty beds. Subparagraph (b)3.b. requires minimum occupancy of at least 65 percent during the first year of operation while subparagraph (b)3.d. imposes the requirement that a full array of programs and services be offered. Rehab meets all of these criteria. Finally, subparagraph (b)3.b. also provides that no proposal . . . will be approved unless the average annual occupancy rate for all existing comprehensive rehabilitation facilities and units within the . . . service district exceeds 85 percent occupancy for the preceding calendar quarter." Memorial is the only such facility in the district and, although licensed for 128 beds, it has only 110 beds in its facility at the present time. To reach the 85 percent occupancy for the licensed capacity of 128 beds, Memorial would have to fill 109 of the 110 existing beds on average. This would be virtually impossible to accomplish. Because of these unique circumstances, it is found that the 85 percent occupancy standard normally used is an inappropriate standard to apply in this case, and should not be used as a basis to deny the application. This being so, all criteria in subparagraphs (b)3.a., b. and d. have been met. Subparagraph (b)3.c. provides that "applicants for comprehensive rehabilitation services should demonstrate that at least 90 percent of the target population resides within two hours driving time under average traffic conditions of the location of the proposed facility." In this case the target population (Volusia County) is within minutes of the proposed facility and therefore satisfies the rule. On the other hand, exhibit 29, which is the only traffic study in this proceeding, and which was not credibly contradicted, reflects that Orlando and Titusville are the only major cities within a two hour driving time of the facility while Melbourne, Lakeland, Ocala, Gainesville and Jacksonville are outside this zone. Even Orlando is not especially convenient, for it lies around an hour and twenty minutes away. Therefore, there are no hospitals in District IV within two hours driving time, while two are in an adjacent District approximately 80 minutes away. However, one of these (Humana) restricts its admissions to mainly spinal cord injuries (92-95 percent of patients) while the other focuses on stroke victims. Further, both have a primary service area different from that proposed by Rehab. This is evidenced by the fact that Volusia and Flagler County residents most recently constituted only 2 percent and 7 percent, respectively, of total patient days at the two facilities. The accessibility standard is accordingly satisfied. According to subparagraph (b)3.e., a facility must be accredited by CARF and meet its standards. In this regard, the proposed facility will be accredited. However, HRS points out that Rehab only intends to make physician and psychology services available rather than actually providing them. The provision of such services should be a condition to issuance of a certificate of need, if indeed Rehab is deficient in this respect. Therefore, with that condition, the criterion has been met. Rehab proposes to offer, where needed, all required variable and optional services enumerated in subparagraphs (b)4. and 5. Finally, Rehab has the ability to develop a formal referral system with acute care hospitals, home health agencies, other providers of vocational rehabilitation facilities and community social services organizations as required by subparagraph (b)6. of the rule. Testimony by local physicians established that Daytona doctors have difficulty in obtaining admissions in non-local hospitals such as Memorial and the two Orlando hospitals. It was further established that a crucial step in the patient recovery process is the need for family members to visit the patient on a frequent basis. Given these considerations and the two hour travel time to Memorial, it is found that the "like and existing health care services in the service district" are not available, appropriate or accessible within the meaning of the statutory criteria. Availability and Adequacy of Other Health Care Facilities in the District (Subsection 381.494(6)(c)4., F.S.) Reasonable and adequate alternatives to hospital placement do not exist. Nursing homes, home health care, Easter Seal and similar programs do not offer a viable alternative to a true rehab center. This is because such services provided in those facilities are in the nature of maintaining the patient rather than restoring the disabled patient to a productive life. Further, the services offered in alternative placements are far less comprehensive in natured and pale in comparison to those offered by a comprehensive medical facility. In view of this, it is found that other health care facilities and services in the district are not available or adequate in terms of providing comprehensive rehabilitative medical services. Probable Economies & Improvements in Services that may be Derived from Joint or Cooperative Shared Facilities (Subsection 381.494(6)(c)5., F.S.) HRS suggests that the most economical way to achieve a new facility in Volusia County is by Memorial simply transferring forty of its 128 licensed beds to Rehab. But Memorial does not wish to transfer more than 20 beds since it plans on eventually using 108 beds in future years. It also does not have the financial capability of constructing its own facility in Volusia County. Under the joint venture agreement, however, twenty unused beds will be put to use, at no cost to Rehab, and both Rehab and Memorial will be equal partners in the new facility. The end result is the establishment of a new rehab facility in the Daytona Beach area that will serve one of the two population centers in the district. Even if Memorial were itself to construct a new facility, the cost of the land and building would be at least equal to what Rehab must bear, and therefore no economies would be achieved. The sharing arrangement proposed by Rehab accordingly achieves economies and improvements in service, and therefore satisfies the criterion. The Need of Applicant for Special Equipment and Services Not Reasonably and Economically Accessible in Adjoining Areas (Subsection 381.494(6)(c)6., F.S.) A rehab center is designated by HRS as a specialty hospitals and as such, provides a unique or special service for its patients. No other comparable facility is reasonably or economically accessible in an adjoining area. Therefore, this criterion has been satisfied by applicant. The Extent to Which Proposed Services-Will be Accessible to All Residents of the Service District (Subsection 381.494(6)(c)8., F.S.) Exhibit 29 clearly reflects that the proposed services will be accessible to the large number of residents in the southern part of HRS District IV. In 1980, they numbered 329,000 persons, and this number is expected to increase by 36.5 percent by the year 1990. Access time of less than two hours extends to much of the populace within the District. More importantly, the facility will be within minutes driving time for patients and families who reside in the large concentration of population in Volusia and Flagler Counties, which is the primary service area of Rehab. In additions the facility will accept Medicaid and Medicare patients; thereby making it accessible to that segment of the population. Therefore, the criterion is satisfied. The Immediate and Long-Term Financial Feasibility of the Project (Subsection 381.494(6)(c)9.,F.S.) At the outset of the hearing the parties stipulated that Rehab has sufficient capital and funds to "construct and open" the proposed facility. L. Effect of New Facility on Competition and Cost-Effectiveness in Delivery of Health Care Services (Subsection 381.494(6)(c)12.,F.S.) Rehab operates seven new rehab hospitals through out the country that provide services comparable to that proposed herein. Most recently, it was issued a certificate of need by HRS to construct and operate a new rehab facility in Melbourne, Florida. Its experience in planning and operating such facilities is not seriously questioned. Based on utilization figures of 65 percent during year one and 85 percent in year two, which are not contradicted and cost experience from its other hospitals, applicant projects a profit between the sixth and seventh months of operation. These projections have not been shown to be unreasonable. Even though it projects only a 1 percent combined indigent and bad debt experience, 53 percent Medicare reimbursement, and .14 percent insurance revenues, these projections are not unrealistic given the fact that unlike an acute care facility patient transfers are prescreened prior to admission. Accordingly, it is found that the project is financially feasible within the meaning of the statute. K. Entities Providing a Substantial Part of Services to Residents Outside Service District (Subsection 381.494(6)(c)11.,F.S.) Although the two specialty hospitals (Florida Hospital and Humana) in District VII provide services to residents outside of their districts these services do not constitute a "substantial" part of their overall service to area residents. For example, since 1983, Volusia and Flagler County patients using Florida Hospital's facility have diminished to approximately 2 percent of its total patient days during the first half of 1985. In the case of Humana, Flagler and Volusia patients represented only 7 percent of that facility's admissions for the ten months ending June 1, 1985. Therefore, because non- District IV facilities provide only a very small part of their services to District IV patients, there will be no impact on these facilities within the purview of this criterion. Approval of the new hospital will not adversely affect Memorial the only rehab facility in District IV. In fact, Memorial supports the application. The effect on Humana, and Florida Hospital should also be negligible since only a very small number of District IV patients now use their facilities. Indeed, the numbers of Volusia area residents using the Orlando facilities has been declining in recent years. Since many patients in Volusia County are now discharged to alternative facilities due to a lack of accessible rehab facilities the delivery of health services and quality of care should improve with the addition of a rehab facility in Daytona. By having a "local" rehab facility, patients will receive comprehensive care that will restore them to their highest functioning potential rather than the patient simply being "maintained" in a nursing home, home health agency or regular hospital facility. This in turn should reduce health care costs incurred when the patient receives maintenance vis a vis restorative care. Accordingly, it is found that the effect on competition will be positive, and that the delivery of health care services and quality of care will be improved.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Rehab Hospital Services Corporation for a certificate of need to construct and operate a 40-bed comprehensive medical rehabilitation facility in Volusia County, Florida be GRANTED subject to the condition in conclusion of law paragraph 14 and finding of fact paragraph 18. DONE and ORDERED this 7th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of January, 1986.
The Issue The issue for consideration in this matter is whether Petitioner should be granted an exemption from disqualification from working with residents or patients of nursing homes, home health agencies, companion services, or nurse registries.
Findings Of Fact In 1991, Petitioner, a certified nursing assistant (CNA), was convicted of two counts of armed robbery of a bank committed in 1988 in the State of Florida. A review of her arrest record indicates she had previously been tried for homicide and acquitted due to a diagnosed multiple personality disorder (MPD). As a result of that incident she was confined to the state mental hospital at Chattahoochee until just before the 1988 robbery. The treatment she received for her condition subsequent to the homicide was not successful. The armed robbery for which she was convicted took place while she was in the control of one of her alter egos. The conviction of armed robbery was sufficient to disqualify her from eligibility for employment working with residents or patients of nursing homes, home health agencies, homemaker- companion-sitter services, or nurse registries. Immediately after her conviction of armed robbery, Petitioner was placed in a mental health facility where she remained under treatment for her MPD for several months. Upon her release, she went back to Ft. Myers, where she had previously lived, and subsequently moved to St. Petersburg, where she took several jobs as a CNA. No one was injured in the bank robberies she was involved in. She was not aware of the incidents at the time she committed them but can now recall what happened because she has completely reintegrated the several personalities she manifested. Her MPD, she claims and it so appears, is a protective mechanism which came about as a result of sexual abuse and incest early in her life. Treatment for the condition began during the three years she was incarcerated prior to her trial for armed robbery. As a result of her plea of guilty at the trial, she was placed in lifetime probation. After her trial, she went from the jail to a mental hospital for three months and from there, was placed under the treatment of a psychologist, Dr. Miller, who, consistent with the terms of her probation, furnished a yearly report to the court. Petitioner was released from institutional confinement in October 1991 and stayed in treatment with Dr. Miller until April 1996, when she ended her relationship with him because of his alleged sexual mistreatment of her. These allegations are currently under investigation by Pinellas County authorities. She is now being seen at least twice a week by a psychiatric social worker, a female, with whom Petitioner has a productive professional relationship. Petitioner started her training for certification as a nursing assistant in 1991. She chose this profession because, as she relates it, her advisor felt that her experiences and her demeanor with people indicated she would be good at it. Petitioner agreed and also felt it would be her way of giving something back. When she was certified as a nursing assistant, she started working at a nursing home and often worked three and four double shifts a week. Though the work was hard and often quite stressful, she claims never to have had any trouble working with other staff or her patients, many of whom could be quite difficult and disagreeable. In fact, she claims, she loves her work and though she routinely found herself in extremely stressful situations, never felt she could not handle it or found it necessary to regress into one of her other personalities, as she had often done in the past before treatment. According to Petitioner, her reintegration is permanent. Even though her life can be stressful at times, she believes she can handle it without regression. Admittedly, she left one job as a CNA because she had a tough time working with people who knew about her past. Working for the nursing agency has given her the opportunity to work at a lot of different places and to see which she likes. She does not make light of her past but she claims to have worked very hard to turn her life around. Petitioner has not, in the past, always worked steadily. There have been intervals of non-employment due to health problems relating to a mitral valve prolapse, to family problems and the like. However, she remains in therapy, has lost a lot of weight, meditates and reads her Koran daily, and feels she has no risk of repeated black-outs. She likes caring for the elderly and believes she constitutes no threat to anyone. Petitioner's supervisor at the nursing facility for which she has worked as an agency nurse for two years, Mr. Banks, speaks highly of her professionally and as a person. She was always on time and well liked by her patients. She was always ready to help others, was considerate of her patients, timely in the completion of her nursing tasks and never a problem in any way. Because Petitioner was supplied to the nursing home by an agency and was not an employee of the facility, Mr. Banks had the option to refuse her or specifically request her. Because of her attitude and performance, he always requested she be assigned to duty at his facility. In fact, he and his supervisors had concluded they wanted her to work for the facility as a full time employee, until the issue of her disqualification came up. When it did, Mr. Bates encouraged Petitioner to seek an exemption. Over the time Petitioner worked for him, Mr. Banks never saw her in a situation where she was a threat to her patients. Petitioner worked on a difficult floor with difficult patients and even with these difficult patients, she was always calm and handled them well - including in stressful situations. She could communicate with her patients and earned their trust, and he never feared she was a danger to her patients as a result of her condition. Even knowing of her medical problems and her robbery conviction, Mr. Banks could see her as no threat to her patients. Her Imam, Abdul Aziz, has known Petitioner since 1972, since she and her former husband were neighbors and co-religionists. As her Imam, he was very familiar with her personal problems and is aware of her court difficulties from 1988, and before. Since she started treatment, he has noticed she has become very focused as to where she is going in her life - a direct contrast to her approach to life before that time. As he sees her, she wants an opportunity to work, to rebuild her life and to be a productive member of the community. Mr. Aziz sees Petitioner several times a week and has seen nothing in her which indicates to him that she is a threat to anyone. She wants to become a member of the mainstream of society. She wants to work and pay her own way. While being trained as a CNA, she was very excited about her future and wants to stay with her profession. Mr. Aziz described Petitioner as very conscientious and supportive of her treatment. She impressed him as being sound and able to communicate her feelings. As a result, he is convinced she now has a good grip on her life and would do well in nursing. Petitioner's husband has known her for nine years - since before the robberies, and maintained contact with her while she was in jail awaiting trial, marrying her while she was in the mental hospital after her trial. According to Mr. E., the terms of Petitioner's probation require her to work and to undergo continued mental treatment. As he knows her, she wants a steady life and a steady job. In his opinion, she has grown considerably since 1988 when she committed her offenses. She now shows compassion and restraint, even when in very stressful situations. She shows good common sense and conducts herself appropriately. She is very good with his daughter from a prior relationship, and he has no concern for his daughter's welfare when she is in Petitioner's care. Mr. El-Amin has seen nothing since Petitioner has been in treatment to indicate she has not re-integrated her personalities. By letter dated September 21, 1995, Dr. Miller, Petitioner's clinical psychologist, indicated he had treated Petitioner for approximately four years and was satisfied she was completely rehabilitated regarding her past behavior. He strongly supported her functioning as a certified nursing assistant, opining she could function in this role in an above average to excellent capacity. No other expert evidence regarding Petitioner's condition was offered. By letter dated August 30, 1995, Mr. Taylor, of Universal Healthcare Staffing, on whose staff Petitioner served for several months, described her as a positive influence on the reputation of the corporation and "truly an asset." He noted that through her superior performance she had earned the respect of her peers and provided care well beyond the expectations of the facilities where she worked. These sentiments and comments were supported and echoed by at least two other registered nurses for whom Petitioner worked at the nursing home. Both favorably commented on her compassionate and calm way with patients, her ability to perform well even in periods of stress, and her receptivity to undergoing the exemption process. It would appear that if an exemption were granted, she would be hired at any facility at which these individuals were employed. While Petitioner was working for the nursing agency, the Agency for Health Care Administration became aware of her disqualifying conviction and declared her ineligible for employment in her current position even though the Board of Nursing granted her certification subsequent to her conviction. As a result of the Agency notice of disqualification, Petitioner requested an exemption and on November 6, 1995, the Agency held an informal hearing at which Petitioner submitted information regarding her rehabilitation. This information included her certificate and letters from her employer and co-workers, including two nurses, a movie producer and a psychologist. Petitioner also testified at the hearing, indicating she had committed the robberies when she was blacked out during an episode of MPD. She claimed that because she did not want to be classified as insane, she went to trial rather than rely on that condition as a defense. During its deliberations, the Agency also looked at the other matters in Petitioner's file and found she also had been charged with a homicide for which she had been acquitted because of her MPD. At the hearing on her rehabilitation, Petitioner contended she had previously not been given proper treatment after the homicide and still suffered from the MPD when she committed her offense in 1988. After that second offense she did begin to get the appropriate treatment. Petitioner indicated to the Agency at the informal hearing that her multiple personalities had been reintegrated and denied that any other personalities could now emerge. She admitted, however, that under stress a new personality might emerge to help her but that she had learned and practices techniques to deal with stress. The agency did not call any expert witnesses or engage in any independent effort to determine Petitioner's actual condition. Petitioner has denied any episodes of black-outs since 1988 and the agency could come up with no derogatory information regarding her performance which indicated any inappropriate behavior by her as a result of stress. Nonetheless, based on the information presented at the informal hearing, which included the documentation supplied by the Petitioner and the testimony by her and her witnesses, the Agency decided not to grant the exemption because though Petitioner had "strived heroically" to keep her MPD under control, it was not convinced additional episodes would not occur in the future. It was felt that a nursing home was a high stress area which could expose Petitioner to the possibilities of new MPD episodes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order granting Juanita El-Amin an exemption from disqualification under Section 435.07, Florida Statutes. DONE and ENTERED this 29th day of July, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of July, 1996. COPIES FURNISHED: Robert H. Dillinger, Esquire 6450 First Avenue North St. Petersburg, Florida 33710 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Sam Power Agency Clerk Agency for Health Care Administration 2929 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Douglas M. Cook Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Introduction On October 15, 1986 University Community Hospital, Inc. (UCH or applicant), which operates an acute care facility in Tampa, Florida, filed an application with respondent, Department of Health and Rehabilitative Services (HRS), seeking a certificate of need (CON) authorizing approval for a new thirty-bed comprehensive medical rehabilitation (CMR) unit to be established by converting and delicensing thirty medical/surgical beds to CMR beds at an estimated cost of $325,240. As a health care provider, UCH is licensed by and subject to the regulatory authority of HRS. On February 20, 1987, and in conjunction with the above application UCH submitted a written request to HRS seeking exemption of an existing rehabilitation unit from CON review. In its request, UCH represented that its rehabilitation unit was providing CMR services prior to July 1983 and thus was eligible to have those beds grand fathered without the need for CON review. This was because prior to July 1983, HRS did not consider CMR services as a separate specialty requiring a CON. After requesting and receiving additional information from the applicant, HRS issued proposed agency action on September 23, 1987, denying the application for a CON. As grounds, HRS stated that "there is a projected District 5 (sic) surplus of 12 rehabilitation beds in the 1991 planning horizon" and that "Tampa General Hospital's 60 rehabilitation beds were occupied at an 84 percent (occupancy) during the preceding calendar quarter; L. W. Blake's 28 rehabilitation beds were occupied at a 74 percent occupancy for the same period; (and) the district had a combined occupancy of 79 percent which is below the 85 percent occupancy standard." By letter dated October 1, 1987, HRS determined preliminarily that nine existing rehabilitation beds at UCH qualified for an exemption from CON services based on HRS's finding that UCH was operating a nine-bed CMR unit prior to July 1983. This written advice was authored by HRS's administrator of community health services and facilities, Sharon M. Gordon-Girvon. Hillsborough County Hospital Authority is a public agency operating two acute care hospitals in Tampa, Florida, one being the Tampa General Hospital (TGH). Citing a potential adverse effect on its CMR unit if UCH's application was approved, TGH filed a petition to intervene in support of HRS's proposed agency action on November 6, 1987. This petition was granted on December 18, 1987. In addition, on March 8, 1988, TGH requested a formal hearing to contest HRS's preliminary determination that UCH was entitled to nine CMR beds by virtue of having operated the same prior to July 1983. In general terms, TGH asserted that HRS had no authority to grant an exemption, but if it did, UCH did not qualify for one. The two cases were consolidated on May 3, 1988. The Applicant and Protestant UCH is a community hospital that began service to patients on July 15, 1968. Its facility is located at 3100 East Fletcher Avenue, Tampa, Florida. It is managed by a twenty person board of trustees and currently is licensed by HRS for four hundred and four beds offering medical/surgical, diabetes, oncology, pediatric and rehabilitative services. UCH is accredited by the Joint Commission on Accreditation of Hospitals (JCAH). The facility provides health care services in HRS District 6, an artificially created health planning area that includes Hillsborough, Polk, Manatee, Hardee and Highlands Counties. In January 1987, UCH executed a contract with HRS and became a participant in the Medicaid program. As such, it receives reimbursement from HRS for services provided to Medicaid patients. Created by special act of the legislature, the Hillsborough County Hospital Authority operates two public, not-for-profit hospitals in Hillsborough County, those being TGH and Hillsborough County Hospital. TGH is a 770-bed facility providing services within HRS District 6. Since it provides sophisticated services to patients who are on average much more severely ill than patients at community hospitals such as UCH, TGH can be described as a tertiary hospital. Since 1984 TGH has operated a CON-approved and licensed sixty-bed CMR unit connected to its main acute care facility and is the only level one trauma center on the west coast of Florida. Also, TGH is the primary provider of indigent care in the district, carrying a disproportionate share of the indigent care burden. In 1987 alone, its indigent care costs totaled almost $30 million. C. Grandfathering of Beds Prior to July 1983, HRS determined whether there was a need for various types of hospital beds (e.g., general medical/surgical, critical care, psychiatric and rehabilitation) under its general acute care bed need rule now codified as Rule 10-5.011(1)(m), Florida Administrative Code (1987). Thus, prior to July 1983, CMR services were not recognized by HRS as a separate bed category for CON and licensure purposes, and the conversion by a hospital of licensed acute care beds to rehabilitation beds did not constitute a change in service. In January 1982 UCH established a nine-bed rehabilitation unit on the sixth floor of the south wing of its facility. The unit was established because UCH believed there to be a lack of rehabilitation care in the community. These beds came from its licensed medical/surgical inventory. At that time, only TGH offered CMR services in Hillsborough County and had sixteen beds dedicated to that specialty. According to UCH's chief physical therapist, the unit was "full from the first week." In its 1982-83 licensure application, which is a filing that must be made with HRS every two years, UCH reflected that its bed inventory included nine dedicated to rehabilitation care. On May 16, 1983, UCH, through its counsel, inquired of HRS whether a proposal to convert nine more licensed medical/surgical beds to CMR beds at a cost of less than $600,000 would be subject to CON review. 1/ Also, it requested that, in the event HRS determined that a CON was needed, the request letter be treated as a letter of intent. One week later, HRS responded by letter and requested further information. Among other things, HRS asked for "a detailed description of rehabilitative care currently being provided in the nine beds dedicated to rehabilitative use." This information was provided to HRS by UCH by letter dated June 6, 1983. It included a lengthy description of the care being provided in the nine beds dedicated to rehabilitative use. According to the response, UCH was providing, among other things, a "comprehensive rehabilitation service, or intensive care providing a coordinated multi- disciplinary approach to patients with severe physical disabilities." This letter was followed on June 30 by another letter from UCH's counsel advising HRS that it understood HRS's position that a project to change the rehabilitation beds to CMR beds would be subject to CON review and that UCH contemplated no such change in service. Effective June 8, 1983, HRS adopted a rule which prescribed a separate bed need methodology for rehabilitation beds. Effective July 1, 1983, the legislature amended Section 395.003, Florida Statutes (1983), by adding a new subsection (4) which required that all licensees providing rehabilitation services thereafter reflect the number of beds in that category on the face of their hospital license. At the same time, the legislature amended Section 381.706, Florida Statutes (1983), to require CON approval for any change in the number of rehabilitation beds by a provider. Thus, on and after July 1, 1983, CMR services were recognized as a separate bed category for licensure and CON purposes. On July 19, 1983, or after the above changes took effect, HRS advised UCH that, because UCH had not sought accreditation for its rehabilitation unit from the Commission on Accreditation of Rehabilitation Facilities (CARF), and its unit did not meet the minimum size requirements (twenty beds) for a rehabilitation unit under then-existing HRS Rule 10-5.11(24)(c)3.a., Florida Administrative Code (1983), it had concluded UCH was not providing CMR services as defined by its rule. The letter pointed out also that any effort by UCH to establish an eighteen bed unit would require a CON pursuant to the recent change in the general law. Finally, HRS advised UCH that it could "continue to provide rehabilitative care in the existing unit, using the nine (9) medical/surgical beds dedicated for that care" and that it could also "provide rehabilitative care on the third floor and use an additional nine (9) medical/surgical beds." HRS added that such beds would "not be considered to constitute comprehensive medical rehabilitation care and the beds dedicated to such care will be counted as medical/surgical beds." Because of a demand for more rehabilitation beds, UCH made a decision to expand its rehabilitation unit in the winter of 1983-84 from nine to fourteen beds. In August 1984 UCH expanded its unit to eighteen beds. It did not seek HRS's approval for either expansion project because of its interpretation of HRS's letter of July 19, 1983, that CON approval was not necessary for units having less than twenty beds. Responding to the changes in the general law, HRS undertook to inventory the existing rehabilitation beds in the state. To this end, its office of comprehensive planning sent a questionnaire to all hospitals, including UCH, in late 1983 inquiring whether they provided CMR services. To verify the accuracy of the responses, but not for the purpose of determining whether CMR services existed prior to July 1983, HRS checked whether CON authorization had been issued previously to the facility, whether the facility reported CMR services to the newly created Hospital Cost Containment Board, and whether the facility reported CMR beds in its biannual licensure application. In its reply to the questionnaire, UCH reported it had a twenty-bed rehabilitation unit. In 1983, UCH requested that the federal Health Care Financing Administration (HCFA), which operates the federal Medicare program, recognize its rehabilitation services as being exempt from diagnostic related groups (DRG). If the request was approved, this meant that UCH could be reimbursed on a cost-basis for services rendered to Medicare patients in its rehabilitation unit instead of under the DRG system which reimbursed the facility on a flat rate basis regardless of the length of stay of a patient. HCFA granted the request for exemption of the nine beds effective October 1, 1983. On October 1, 1984, HCFA recognized an exemption for eighteen beds. This exclusion was renewed after a subsequent survey of the unit in 1985. When these exemptions were granted, HCFA did not enforce a federal requirement that a facility be licensed for CMR services in order for HCFA to recognize the exemption. In 1984-85, HRS became aware of certain DRG-exempt rehabilitation units in the state that were not licensed by HRS for CMR services. As noted in a later finding, these providers, including UCH, were allowed to seek a CON exemption and demonstrate that they were providing CMR services prior to July 1983. This opportunity was given partly because HCFA began enforcement of its policy that CMR services be licensed by the state before an exemption would be recognized. Indeed, HCFA revoked UCH's exclusion from Medicare's prospective payment system effective October 1, 1987, on the ground UCH's unit was not licensed by the state. It was later reinstated in 1988, for nine beds after HCFA became aware of HRS's preliminary determination on October 1, 1987, that UCH was entitled to a CON exemption. Because of this limited exemption, UCH now accepts no more than nine Medicare patients at any one time in its unit. On March 18, 1985 UCH's chief executive officer, Terry L. Jones, filed with HRS the facility's biannual licensure application which reflected, inter alia, the facility's then current bed utilization. According to UCH's filing, UCH had three hundred sixty medical/surgical beds, twenty-six pediatric beds and eighteen CMR beds. A copy of the application has been received in evidence as TGH exhibit 102. After receiving the application, HRS advised UCH by letter dated April 25, 1985, that "(HRS's) records (did) not indicate 18 comprehensive medical rehabilitation beds... Please explain." In reply to this, Jones advised HRS by letter dated April 29, 1985 that "a copy of our authorization for rehabilitation beds is attached." This "authorization" was a copy of HRS's July 19, 1983 letter. In July 1985 HRS issued License No. 1779 for the continued operation of UCH's facility. In an undated transmittal letter, HRS stated in part: Please be advised that part of the application pertaining to licensure of 18 comprehensive medical rehabilitation beds is hereby denied because you have failed to obtain a Certificate of Need or exemption from review pursuant to Section 381-493 through 381-499, Florida Statutes (F.S.) and Rule 10-5, Florida Administrative Code (F.A.C.). Certification as an excluded unit by the Department of Health and Human Services, Health Care Financing Administration does not eliminate the Certificate of Need requirements. (Emphasis added.) UCH was offered a point of entry to contest this decision. After receiving the above advice, UCH did not request a hearing but simply inquired of HRS as to whether the eighteen beds should be counted under its general medical/surgical bed component. According to UCH, it did not contest the decision because HCFA continued to recognize UCH's unit as being exempt from the DRG's. On May 16, 1986, Jones and HRS's licensure supervisor, John Adams, had a telephonic conversation concerning the status of the eighteen rehabilitation beds. To confirm the substance of this conversation, Jones advised Adams by letter as follows: I wanted to confirm our conversation today regarding our "rehabilitation" beds licensure to avoid any future problems. You suggested that our 18 beds used for rehabilitation are appropriately licensed under medical/surgical. The beds are not Comprehensive Medical Rehabilitation beds and should not be listed under the Rehabilitation section. The beds could be listed under the "Other" category with an explanation that they are medical rehabilitation, but as you suggest, it would probably further confuse the issue. We intend to continue to offer rehabilitation care with these beds, and understand they do not require a C.O.N. as they are not Comprehensive Rehabilitation Beds. (Emphasis added) On or about May 6, 1986, someone at HRS's office of licensure and certification amended UCH's 1985-86 licensure application to reflect eighteen "Rehab" beds instead of eighteen CMR beds as originally recorded on the application by UCH. In early 1986, TGH became concerned that UCH was providing CMR services without the necessary authority from HRS. It voiced these concerns to HRS on several occasions. On April 30, 1986, HRS advised TGH by letter that UCH had "authorization to use eighteen medical/surgical beds for the purpose of rehabilitation of patients in the hospital" but it did "not have approval for a comprehensive rehabilitation center." It added that HRS had been assured by UCH that UCH was not operating a comprehensive rehabilitation center. By letter dated October 6, 1986 TGH's counsel complained again to HRS's secretary that UCH was operating beyond its licensed authority. UCH learned of this complaint and responded by letter to HRS that its unit was established in 1982, nine beds "for rehabilitation purposes" had been approved by HRS in July 1983, and it had received permission to add nine more beds to its unit in 1983 because of its insufficient size (less than twenty beds) and failure to meet CARF standards. On January 4, 1987, responded to UCH's letter and advised that, based upon a site visit, it now believed UCH was providing CMR services. The letter advised further that HRS had erred in 1983 by telling UCH that its rehabilitation unit was exempt from CON review because of its size (less than twenty units). This was because HRS now construed its Rule 10-5.11(24) governing size of units to apply only to proposed CMR units and not existing CMR units. In view of this error, HRS offered UCH the opportunity to request an exemption of its rehabilitation unit from CON review. This prompted UCH's request for exemption for its nine beds dedicated to rehabilitative care prior to July 1983. In March 1987, an on-site inspection of UCH's facility was made by Robert E. Pannell, HRS's consultant for health services and facilities. This visit was prompted by UCH's request for exemption made on February 20, 1987. The results of that visit are reflected in a report and recommendation dated July 31, 1987, and received in evidence as joint exhibit 5. According to the report, UCH was providing CMR services prior to July 1983, and was entitled to an exemption. In reaching that conclusion, Pannell utilized ten criteria developed during the course of previous investigations. Except for the criteria relating to unit size and compliance with CARF standards, which Pannell deemed to be inapplicable, Pannell concluded that UCH satisfied all others. These included the categories of distinct unit, range of services, provision of service prior to June 1983, team approach/team meetings, length of stay over twenty-eight days, separate policies and procedures, types of patients treated and individualized patient goals. These criteria generally track the CMR rule. Pannell's recommendation was reviewed and concurred in by two other HRS administrators, and proposed agency action granting the exemption was issued by HRS on October 1, 1987. The evidence is conflicting as to whether UCH actually provided CMR services as defined in HRS's rule prior to July 1983. This matter is crucial since eligibility for an exemption is contingent on such a showing. The UCH rehabilitation unit was not specifically designed for rehabilitation care and did not satisfy the CARF standards prior to July 1983. Indeed, UCH has been upgrading its program and facilities since that date to comply with those standards. In 1986, UCH requested and received from HRS authorization to make a complete renovation of its sixth floor "rehabilitation unit" at a cost of $300,000. After doing so, the unit satisfied CARF standards and later became accredited by JCAH. 2/ Prior to 1986, UCH's rooms were not designed for rehabilitation care and were like those in any medical-surgical unit. For example, they did not allow wheelchair accessibility, there were no central bathing facilities and the individual bathrooms were not wheelchair accessible. As to the requirement that the unit have separate policies and procedures for rehabilitation services, UCH's policy manual on this subject was not drafted until 1984. As to the requirement that the unit have individualized patient goals, UCH's patients did not have an overall rehabilitation patient care plan prior to July 1983. Rather, there were separate patient goals in separate sections of the medical record pertaining to each discipline, such as physical therapy and nursing. Until the 1986 renovation project was completed, UCH's rehabilitation unit did not have a physical therapy room on the same floor as the patients. Physical therapy, if needed, was provided on the first floor of the facility. Thus, prior to that date, therapy was provided to rehabilitation patients bedside, exactly as medical rehabilitation services are provided bedside to general medical-surgical patients throughout the hospital. Further, the nine beds dedicated to rehabilitative care were mixed in with non-rehabilitative beds so that a semiprivate room might have one dedicated to rehabilitative care and the other used by a patient not receiving that type of service. According to HRS's supervisor of medical facilities, a rehabilitation unit is not considered to be a physically distinct unit unless all patients and support services are in the same area of a floor and not scattered throughout the hospital. In addition, the area devoted to CMR services must house only patients receiving CMR services. There is a distinction between medical rehabilitation services and CMR services. Medical rehabilitation services provided in a hospital setting include such services as physical therapy, occupational therapy and speech therapy and are routinely available to patients in general medical-surgical beds. Further, medical rehabilitation services have neither an integration of the disciplines nor the full-time assignment of the various specialties (e.g., physical therapy, occupational therapy, speech pathology, rehabilitation nursing, social services, psychologist and the like) to the care of the patient. In contrast, CMR services are a specialized, intensive type of rehabilitation service that involve a coordinated, multi-disciplinary approach to a person's disability. Indeed, CMR services are defined by statute to be a "tertiary" service that is specialized and concentrated in a limited number of hospitals to ensure the quality, availability and cost-effectiveness of that service. In summary, there is a marked difference between the two in the level of care and intensity of services. Prior to July 1983 UCH's nine bed unit provided medical, but not comprehensive medical, rehabilitation services to its patients. Application for Additional Beds - Statutory and Rule Compliance Need for New Beds - Subsection 381.705(1)(a), F.S. At hearing, UCH amended its request to seek only twenty CMR beds. If the amended application is approved, UCH will convert and delicense a comparable number of medical/surgical beds from its inventory. There are no capital costs associated with the project. As noted earlier, UCH lies within HRS District 6 which is composed of Hillsborough, Polk, Manatee, Hardee and Highlands Counties. Presently, the only existing CMR units in the District are sixty beds at TGH and twenty-eight beds at L. W. Blake Hospital in Bradenton, Florida. In addition, just prior to final hearing in this cause, Winter Haven Hospital (in Polk County) opened a twenty- four bed CMR unit at its facility giving a total of one hundred twelve beds in the District. The need for new facilities is measured in relation to the applicable district plan and state health plan. The district (local) plan, while having broad policy goals applicable to health planning in general, is nonetheless inapplicable since it fails to address the need for rehabilitation services. Rule 10-5.011(1)(n), Florida Administrative Code (1987), is the HRS specialty bed need rule applicable to CMR services. The methodology has been incorporated into the state health plan and is an important consideration in the evaluation process. Under this rule, the bed need or surplus is projected five years into the future from the application filing year. In this case the so-called planning horizon against which the need for CMR beds is to be tested is July 1991. According to HRS's proposed agency action to deny the application, there is a projected surplus of twelve rehabilitation beds in District 6 in the 1991 planning horizon. In addition, the proposed agency action found that the occupancy rate for TGH's unit was 84 percent during the "preceding calendar quarter," L. W. Blake Hospital had a 74 percent occupancy rate for the same period, and the district as a whole had a combined occupancy rate of 79 percent which is below the HRS 85 percent occupancy standard. Bed need or surplus for the district is calculated by first determining the number of projected acute care discharges, broken down by age group, from hospitals in the district for the horizon year. The rule then sets as a standard 3.9 CMR beds per 1,000 acute care discharges in the target year, with those beds occupied at an average rate of 85 percent, assuming an average length of stay of twenty-eight days. In this case, the formula yielded a gross need for 1991 of one hundred beds. The above targeted bed supply (gross need) was then compared to the actual inventory of existing and approved beds. As indicated in finding of fact 32, the actual inventory of CMR beds in District 6 was one hundred twelve beds thus indicating a surplus of twelve CMR beds. Therefore, no need was shown for UCH's proposed new CMR beds. To this extent, the application is inconsistent with the state health plan. Besides the bed need calculation, Rule 10-5.011(1)(n)2.c.(II) addresses the utilization of existing providers in a second way and provides that, even if the formula produces a need for new CMR beds, no such beds shall be authorized "unless the average annual occupancy rate for all existing comprehensive rehabilitation facilities and units within the Department service district exceeds 85 percent occupancy for the preceding calendar quarter." This standard is somewhat confusing since it uses the phrases "average annual occupancy rate" and "preceding calendar quarter" in the same sentence thereby raising the question of which time period to use. However, HRS's practice is to use the occupancy rate for the preceding calendar quarter when applying the rule to this type of application. Also, it interprets the words "preceding calendar quarter" to mean the quarter preceding the scheduled decision date on the application. Therefore, HRS determined the occupancy rate of existing district providers for the calendar quarter preceding February 27, 1987, which was the scheduled decision date on UCH's application. During this time period, TGH's sixty beds were 84 percent occupied while L. W. Blake's occupancy rate for its twenty-eight beds was 74 percent, or a weighted average of 81 percent. This was below the required district standard of 85 percent. Had HRS used the occupancy data for the calendar quarter preceding the actual decision date of September 4, 1987, the two hospitals still had a weighted average of 81 percent, or well below the necessary rate. Neither calculation includes the twenty-four beds recently opened in Polk County. Thus, occupancy was not at a level to counterbalance the oversupply of CMR beds in District 6. In an effort to show need on another basis, UCH presented evidence concerning those factors enumerated in Rule 10-5.011(1)(n)2.b.(I)-(IV) and substituted more favorable numbers into the formula. To support the use of more favorable formula data, UCH asserted that if actual admissions (4.7) and patient length of stay (35-37 days) were used, the formula would produce a need for forty-six new beds in 1991. It contended also that if national incidence and prevalence rates were applied to the District 6 population, the bed need would be in excess of three hundred. Both calculations are inappropriate since they draw upon factors already taken into account in the rule or are based on erroneous assumptions. As to evidence submitted to support the other factors for determining need, which were not a part of UCH's completed application, UCH likewise made incorrect assumptions or applied incorrect data. Thus, UCH failed to demonstrate any special circumstances that would justify a deviation from the rule methodology. Availability, Efficiency, Appropriateness, Accessibility, Extent of Utilization and Adequacy of Existing CMR Units (Subsections 381.705(1)(b) and (f), F.S. In the last three years, there have been waiting lists for admission to the rehabilitation units at TGH and UCH. However, TGH's waiting list has declined in recent times, and it now intends to intensify its marketing efforts to maintain a high occupancy level. While UCH still had a waiting list as of the time of hearing, UCH has followed the practice of placing some of these patients on the list before they were ready for rehabilitation and before being screened medically and financially to determine if they met admissions criteria. Indeed, even though UCH has experienced 1988, occupancy rates ranging from only 68 percent to 78 percent, it continues to maintain waiting lists and fails to give continual assessment to those lists. UCH's occupancy rate for its eighteen bed unit was 84 percent in 1986 and 86 percent in 1987. If the application is approved, UCH projects an 85 percent occupancy rate for the twenty-bed unit. Prior to August 1985, the unit was generally 85 percent to 90 percent full with a waiting list of three or four patients. However, until a renovation project was completed in 1986, the beds were used as medical rehabilitation beds, and utilization factors before that date are irrelevant. Further, non-licensed CMR beds are not taken into account by HRS in the licensing process. TGH's occupancy was 90.86 percent in 1986 and 88.51 percent in 1987, but the rate has declined in 1988, because of a new CMR facility in an adjoining district (New Port Richey) and a drop in the average length of stay by patients. This decline has occurred even though the demand for rehabilitation services is increasing, and it is not feasible to maintain 100 percent occupancy in a rehabilitation unit because of the way patients are historically admitted on Monday and discharged on Friday. The HRS rule contains a two hour accessibility standard. The standard is not a limitation on facilities but is designed to insure that there are facilities available to the public. The standard requires that CMR services be accessible to 90 percent of the population within two hours driving time. This means that it is not unreasonable to have patients travel up to two hours to access CMR services. In interpreting this rule, HRS includes the availability of CMR beds in adjacent districts that are reasonably accessible. Thus, Districts 5 and 8, which include communities such as Sarasota, St. Petersburg and New Port Richey, are reasonably and economically accessible in adjoining districts. CMR beds that are available, or will shortly become available, include sixty beds in St. Petersburg, forty beds in Clearwater, twenty beds in New Port Richey, and sixty beds in Sarasota. While there was an accessibility problem in the past, this problem peaked in 1986 and has been subsequently alleviated by the rejuvenation of programs in Districts 5 and 6 and the addition of twenty-four beds at Winter Haven Hospital. 3/ District 6 has experienced rapid growth and is expected to continue growing in the future. However, health planning is not done in this state on a geographically ad hoc basis, particularly for tertiary services that are planned on a regional basis. Proximity of a facility to the family of rehabilitation patients is important to the patient's recovery. This is because the training and counseling of the family is an important part of rehabilitative care. Approximately 80 percent of UCH's rehabilitation patients are elderly stroke patients. This makes driving time a significant barrier to the rehabilitation process if the families of the patients are likewise elderly and unable to drive more than a short distance. This was confirmed by the testimony of a local physician who always attempted to place patients in facilities closest to their families. However, because CMR services are not emergency health care services, HRS does not require such services to be accessible within a short drive time. Moreover, besides TGH, most of the other district facilities lie within one hour's driving time from Tampa. As to financial accessibility to CMR services within District 6, TGH provides services to indigents, medicaid and medicare patients and private pay patients. There are also financial incentives to use outpatient services whenever possible. Should UCH's application be denied, patients within District 6 will not experience any problems in obtaining CMR services. Quality of Care - Subsection 381.705(1)(c), F.S. UCH is accredited by the Joint Commission on Accreditation of Health Care Organizations (JCAH). At hearing, HRS expressed no concern over UCH's ability to provide quality of care. If approved, UCH's twenty-bed unit will meet all criteria in Rule 10- 5.011(1)(n). UCH has agreed to provide all programs and range of services specified by the rule. The unit now meets CARF standards. Finally, UCH has a fully developed referral system. Availability and Adequacy of Existing Providers - Alternatives - Subsection 381.705(1)(d), F.S. There are no alternatives to CMR services for patients who need inpatient comprehensive rehabilitation services. This is because only a CMR unit offers the comprehensive specialized services needed by CMR patients. In this proceeding, UCH does not propose an alternative to CMR services. Rather, it proposes an alternative site from that offered by other CMR providers in the district. Although there is a growing number of comprehensive outpatient rehabilitation facilities (CORF) in the district, these do not provide the same level of care as do CMR units. Availability of Resources, including Manpower - Subsection 381.705(1)(h), F.S. There is a general, overall shortage of specialized staff in the Tampa area. However, UCH does not have any problem attracting and keeping qualified staff for its eighteen-bed rehabilitation unit or finding qualified physical therapists to provide rehabilitation services. This was confirmed by HRS's administrator of community health services and facilities. Financial Feasibility - Subsection 381.705(1)(i), F.S. The proposed project, if approved, is financially feasible from both an immediate and long-term standpoint. Impact on Costs of Health Care - Subsection 381.705(1)(i), F.S. The evidence is conflicting as to whether the project will impact adversely or favorably upon UCH's costs of providing health care. It is found that the project will have a beneficial effect on UCH's cost of providing health care since the unit provides a positive cash flow and offsets in part its uncompensated indigent care costs. It will also prevent UCH from going into an operating deficit. Provision of Services to Indigents and Medicaid Patients - Subsection 381.705(1)(n)1, F.S. Historically, UCH has not provided a high percentage of care to Medicaid and indigent patients. In its application, UCH proposes a patient mix that includes 2.5 percent indigent care and 2.5 percent medicaid. Also, UCH proposes to screen patients seeking rehabilitation care and deny admission to the unit if they lack a funding source. I. Impact on TGH. TGH's CMR unit is a significant contributor to TGH's overall financial soundness. Admissions, revenues and operating margin from the unit have increased each year. Because of large indigent care costs (which totaled almost $30 million in 1987), TGH depends on cross-subsidization of profits from private paying patients to offset the cost of indigent care and other laudable purposes such as being the primary teaching hospital for the University of South Florida. Therefore, it is necessary that TGH's CMR unit be fully utilized in order to maximize the return on its investment. TGH currently attracts patients from roughly a 72-mile radius and is impacted by providers in District 6 and adjoining districts. UCH's proposed CMR service area will overlap with TGH's existing service area and thus adversely impact on TGH's admissions. Indeed, TGH's profit margin in its CMR unit could be wiped out with a 10 percent drop in the occupancy rate. Around sixty percent of UCH's rehabilitation admissions come from in- house. Virtually none of its patients come from Pinellas or Polk Counties but it does get a significant number from Pasco County. TGH also admits patients from Pasco County and would be adversely affected by this competition.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application for a Certificate of Need and the request for exemption of nine beds be DENIED. DONE AND ORDERED this 28th day of December, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 28th day of December, 1988.
Findings Of Fact Petitioner has had a relationship with his wife since they were 16 years old. At the time the hearing was conducted, husband and wife were 24 years old. They had been married for approximately three years and had a child who was four years old. Beginning February 1995, Petitioner became suspicious that his wife was having an affair with another man. Around that time, the couple argued several times a week. This would cause Petitioner to leave their home. In addition, Petitioner and Mrs. McCall would not speak to each other for a couple of days following these arguments. On March 16, 1995, the man with whom Petitioner's wife was having the relationship called the couple's home. On that occasion, Mrs. McCall would not say who was speaking to her on the telephone and appeared secretive. It led to a further argument between Petitioner and Mrs. McCall. Petitioner then grabbed his keys and started to leave. Mrs. McCall struggled with him to get the keys out of his hand. During the struggle, Mrs. McCall was scratched on her chest. The noise that the couple made was sufficiently noticeable that the neighbors called the police to investigate. When the police arrived at Petitioner's home on March 16, 1995, Petitioner was sitting on the couch. The police noticed the visible marks on Mrs. McCall's chest. Consequently, Petitioner was charged with battery under Section 784.03, Florida Statutes. On March 18, 1995, Petitioner pled no contest to the offense of battery for the incident that took place on March 16, 1995 involving his wife. He was given two days unsupervised probation and required to pay $75.00 in court costs. The court adjudicated Petitioner guilty of the offense. After the March 16, 1995 incident the McCalls continued to argue. On April 11, 1995, when Petitioner left home to go to work that morning, he told Mrs. McCall that he was going to leave work in the afternoon and travel to Deland, Florida, to see his father. Instead, Petitioner went home that afternoon to get some papers before making the trip to see his father. When he arrived at his home a person named Renee, Mrs. McCall's friend, was watching the McCalls' child in one room, while Mrs. McCall was in bed with her male acquaintance in the McCalls' bedroom. When Petitioner discovered his wife with another man, he began to scream and yell and picked up his son to leave the home. Mrs. McCall tried to intervene and stop Petitioner from leaving the home with her son. During the course of this incident, Petitioner grabbed his wife by the arms and pushed her aside, causing her to fall against the wall. The areas upon which she was grabbed by Petitioner were bruised. Mrs. McCall is prone to bruising because she is a hemophiliac. Their child was not harmed during this physical exchange between the couple. After the exchange, Petitioner left the home and went to Deland, leaving the child with his mother. Before discovering his wife in bed with the other man, Petitioner did not know, as a matter of fact, that his wife was having a relationship with that person. When Petitioner discovered his wife in bed with the other man, he did not threaten her, notwithstanding the yelling and screaming. Renee had called the police when Petitioner arrived at the home, but the police did not arrive for one-half hour to one hour after Petitioner had left the home. Mrs. McCall was concerned about how her husband would react beyond the point where he had discovered her with another man. Therefore, she determined to make a complaint about her husband's physical activity in which he bruised her arms. Based upon that complaint, the police determined to arrest Petitioner. Following the trip to Deland Petitioner came back that night and spent the night with a friend in Jacksonville, Florida. The next morning Petitioner called Mrs. McCall and inquired concerning the circumstances of their exchange. Mrs. McCall told him that she had called the police after he left because she was afraid of what he might do to her and that made her "press charges". Petitioner responded by telling his wife where he was located and telling her to have the police come to that location and pick him up, which they did. When the police arrested Petitioner for the events on April 11, 1995, they again charged him with a violation of Section 784.03, Florida Statutes, and made mention that the battery for which he was accused was associated with domestic violence. Following the arrest, Mrs. McCall spoke with the state attorney's office to have them drop the charges for the battery that occurred on April 11, 1995. The state attorney's office was unwilling to drop the charges in view of the prior charge dating from March 16, 1995. Petitioner pled no contest to the battery offense related to the April 11, 1995 incident. He was given a 30-day sentence, credited with serving two days of the sentence, and the remaining 28 days of that sentence were suspended, conditioned upon the successful service of probation. The probation was served for nine months. Petitioner was adjudicated guilty for the offense and was required to participate in a program for individuals who had committed offenses involving domestic violence. The program emphasized controlling one's aggression. Petitioner completed the program related to management of his aggression. In the program to deal with domestic violence, Petitioner and other participants were required to discuss the experiences they had concerning domestic violence. The McCalls lived apart from April, 1995 until January, 1996. During that time, Petitioner kept their child for the most part because his living arrangements were more suitable than those under which Mrs. McCall existed. While they were estranged, initially, the couple did not do things together and would separately spend time with their child. At the end of their estrangement the couple began to do things as a family unit. Subsequent to being reunited, the McCalls had been seeing a marriage counselor for about a month at the time the hearing was conducted. The McCalls had been to four sessions with the counselor and intended to continue seeing a marriage counselor in the future. The McCalls described their relationship as improving since they have been reunited. Prior to the events in March and April, 1995, in which Petitioner battered Mrs. McCall in the manner described, Petitioner had never struck his wife. As explained at the hearing, Mrs. McCall is not concerned that her husband will batter her in the future. Petitioner holds a bachelor's degree in psychology. He has one year of study in sociology in a bachelor's-level program. In the past, he worked two and one-half years for ARA Living Centers, providing direct care to adults. He left that position and took employment with an organization known as New Directions. This was a mental-health position, working with children on an out- patient basis. Petitioner held this job for approximately two years. Beyond that point, Petitioner took a position as a child-guidance case worker in a mental-health capacity. It was that position that prompted the screening that was conducted in January, 1996, leading to the decision to disqualify him from that employment. The procedures followed in the disqualification are as detailed in the preliminary statement above. Petitioner contested the decision to deny him an exemption from disqualification. His request to be heard before the Respondent and to seek a formal hearing to contest the preliminary decision by Respondent denying the exemption from disqualification were both timely filed. Before being terminated from his position as a child-guidance counselor based upon the disqualification, Petitioner had worked voluntarily at a group home for children. In the past, when working with children and adults, Petitioner has never been disciplined or reprimanded concerning his conduct in providing that care. Mr. George Robinson is an HRS Protective Services worker. He began work with Respondent on June 12, 1995. Prior to that employment, Mr. Robinson worked in the Mental Health Center in Jacksonville, Florida, as a discharge planner. Mr. Robinson knew Petitioner when they attended college. He considers Petitioner his friend and speaks highly of Petitioner's character. In addition, Mr. Robinson is familiar with Petitioner's work history and recommended that Petitioner receive a position at the Mental Health Center of Jacksonville, Florida, where Petitioner was employed from November 15, 1993 through November 30, 1995. Jane Escobar, M.S.W., Manager, Children's Department for the Mental Health Center of Jacksonville, Inc. refers to Petitioner's work history with that organization. Among the duties Petitioner performed with the organization was as an individual assigned to the Therapeutic Group Home within the Mental Health Center, in which position Petitioner worked with emotionally-disturbed children. This work entailed association with counseling groups, individual social skills training, chart documentation, and recreational activities. It also involved interaction with families and other treating professionals. Following receipt of his bachelor's degree, Petitioner was promoted to a position of mental-health counselor within the Mental Health Center, a position which required him to carry a case load of approximately 15-18 clinical cases, involving individual counseling with children, family work, and often involving seeing the children in their homes, as well as at their schools, and in his office. Petitioner left the position with Mental Health Center of Jacksonville in good standing to pursue a career-enhancing position. Ms. Escobar considers Petitioner to be a well-liked and a highly-respected clinician. Ms. Escobar indicates that the Mental Health Center would willingly return Petitioner to employment if a position were available at the Center. Mr. Val Thomas has written to commend Petitioner for his work as a counselor for Mr. Thomas' son. Mr. Thomas attributes Petitioner's good works for helping the Thomas family to correct problems which their son was having. Ms. Nancy Edmonds, a clinical social worker, speaks favorably of Petitioner, whom she has known in a professional and personal capacity for two years. She is impressed by Petitioner's moral character and finds Petitioner to be an understanding and caring person. She has found him capable of dealing with the most difficult circumstances in their work, without losing his composure. She finds that he works well with children and adolescents. Mr. Brian J. Maxson is the First Step Coordinator at Hubbard House, the facility in which Petitioner participated in group sessions concerning his conduct toward his wife, as a condition of his probation. Mr. Maxson confirms that Petitioner completed that program. At present, Petitioner works with AT&T in soliciting customers to use its services. He had held that position for two months when the hearing commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner an exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 14th day of June, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1996.
The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2004.
The Issue Whether the application of Martin Memorial Medical Center, Inc., to establish a 15-bed hospital-based skilled nursing unit meets the criteria for the issuance of a certificate of need.
Findings Of Fact The Agency for Healthcare Administration (AHCA) is the state agency which administers the certificate of need (CON) program for health care services and facilities in Florida. On April 18, 1997, AHCA published a need for a 15-bed hospital-based skilled nursing unit (SNU) in District 9, Subdistrict 2, for Martin County. Because the beds will be in a hospital, they will be licensed under Chapter 395, Florida Statutes. By contrast, freestanding, nursing facilities are licensed, pursuant to the provisions in Chapter 400, Florida Statutes. Since it is the only acute care hospital in the County, Martin Memorial Medical Center, Inc., d/b/a Martin Memorial Medical Center (Martin Memorial) applied for the CON to establish the 15-bed hospital-based SNU. Martin Memorial has 336 beds located on two separate campuses in Martin County. A satellite facility which has 100 beds, Martin Memorial South, is located in Port Salerno. Port Salerno is approximately 10 to 12 miles south of the City of Stuart. Martin Memorial also owns a 120-bed nursing home on the Port Salerno campus, Martin Nursing and Restorative Care Center (Martin Nursing Center). The facility includes a 40-bed subacute unit. Martin Nursing Center is operated by a long-term care company, Eden Park Management, Inc. Martin Memorial North, the larger, 236-bed hospital in Stuart, is the proposed location of the SNU. The SNU renovation project will cost approximately $242,000, and will occupy space which is currently used for outpatient services. AHCA preliminarily denied the CON application due to Martin Memorial's failure to propose to delicense and convert acute care beds to establish the SNU. AHCA withdrew its objection to the issuance of CON 8847 after reviewing occupancy levels by department at Martin Memorial. AHCA published the applicable fixed need pool in April 19971, which was calculated using proposed Rule 59C-1.036, published on February 7, 1997.2 Notice was given of the only challenge to the proposed rule which was filed by National Healthcare, L.P.3 and subsequently dismissed. No motion to consolidate that case with this one was ever filed. Healthsouth of Treasure Coast, Inc., d/b/a Healthsouth Treasure Coast Rehabilitation Hospital (Healthsouth) is a 90-bed rehabilitation hospital in Vero Beach, Indian River County, approximately 60 miles north of Martin Memorial North. Healthsouth is also in AHCA, District 9, but not in Subdistrict 2. In District 9, St. Lucie County is on the east coast, adjacent to Indian River County to the north, Martin County to the south, and Okeechobee County to the west. The four counties in District 9 are north of Palm Beach County, the only other county in the District. The hospital-based SNUs in the four northern counties in District 9 are: Port St. Lucie Hospital, in St. Lucie County, which has 150 beds and a 15-bed SNU, with CON approval for 9 more SNU beds; Lawnwood Regional Medical Center, also in St. Lucie County, which has 260 beds and a 33-bed SNU; Indian River Memorial Hospital, located within a mile of Healthsouth in Indian River County which has approximately 320 beds and a 20-bed SNU and approval for 8 more SNU beds; Sebastian Hospital, in Indian River County, which has between 100 and 150 beds and has recently been approved for 9 SNU beds; and Raulerson Hospital, in Okeechobee County, which has 101 beds including SNU. Healthsouth identifies its primary service areas as Indian River, St. Lucie, and Martin Counties. Healthsouth generally attracts 60 percent of its patients from Indian River County, 20 percent from St. Lucie, and 15 percent from Martin County. Patients are referred from both Martin Memorial North and South. Healthsouth asserted that a 15-bed SNU at Martin Memorial will compete with Healthsouth, resulting in a loss of patients in sufficient numbers to cause a substantial adverse impact on Healthsouth. Healthsouth's expert in health care planning and finance examined national acute care discharges as compared to the percentage of those cases which typically have follow-up subacute care. Using discharge data by Diagnostic Related Group (DRG), the expert quantified the percentages of subacute cases which can receive services in either a CMR hospital or a skilled nursing facility. Based on an estimate that 75 to 90 percent of the overlapping DRGs would be redirected to Martin Memorial, Healthsouth projected a loss ranging from 55 to 66 cases when applied to 1997 annualized data. The three largest categories of referrals from Martin Memorial are stroke, orthopedics, and rehabilitation, which account for 85 percent of total admissions to Healthsouth. The payer group from the three categories was used to determine the financial impact, using the midpoint of the projected loss of 60 cases or 900 patient days. The financial loss per case is the difference between net revenue per patient day of $458 and the variable expenses per patient day of $295, or $163. Given an incremental net income per adjusted patient day of approximately $163, the projected loss of 900 patient days a year, and an assumed 15-day average length of stay, Healthsouth projects a loss of approximately $150,000 a year in revenues if a 15-bed SNU is established at Martin Memorial. In 1995, the only hospital-based SNU in Healthsouth's service area was at Lawnwood. The SNU at Raulerson opened in April 1996, followed by Port St. Lucie in November 1996, and Indian River Memorial in May 1997. In addition, the new CMR program was developed at Lawnwood, while the unit at St. Mary's Hospital in West Palm Beach was expanded during 1997. By January 1998, Healthsouth reached full capacity, or an average daily census in the range of 84 to 89 patients in 90 beds. Healthsouth's medical director believes that it would have reached full capacity much sooner after its 20-bed expansion in mid-August 1997, but for the competition from the hospital-based SNUs. The expansion of Healthsouth has accomplished the objective of eliminating a 15-to-20 person waiting list which existed when it was a 70-bed facility. The average daily census (ADC) at Lawnwood, in 1995, was 31.1 patients in 33 beds. By the end of 1995, the average daily census at Healthsouth was 69.9 patients in 70 beds. From January 1996 to July 1997, the ADC in Raulerson's 12-bed SNU increased from 5.6 patients to 8.1. After Raulerson's SNU beds became available, the ADC of Healthsouth continued in the 68 to 69 range in 70 beds, indicating that Healthsouth was full. When Port St. Lucie's 15 SNU beds opened during the last two months of 1996, its ADC of 3.9 patients in 1996 increased to 13.5 for the first seven months of 1997. From the time Port St. Lucie's SNU became operational through the end of 1997, the ADC at Healthsouth ranged from a low of 67.2 in 70 beds in June 1997, to a high of 81.9 in 90 beds in November 1997, approximately three months after its expansion. Indian River Memorial, the largest referral source and the closest SNU to Healthsouth, opened a 20-bed SNU, in May 1997. Healthsouth failed to show any adverse impact as a result of the opening of any of existing SNUs in the District. All of the SNUs in the four-county area have filled relatively quickly when opened. At the same time, utilization of CMR services has also steadily increased. In 1996, Martin Memorial North referred 181 patients to Healthsouth; 134 were actually admitted. For the first eleven months of 1997, Martin Memorial North referred 147 patients (160 annualized) resulting in 109 admissions (119 annualized). The percentage of referrals which became admissions was the same, 74 percent, for both years. Martin Memorial South referred 27 patients with 22 of those admitted in 1996, and referred 33 of which 25 were admitted, based on actual data for the first eleven months of 1997 annualized for the entire year. Healthsouth notes that Martin Memorial North's referrals declined 12 percent, and the admissions declined by 11 percent comparing 1996 to 1997. Martin Memorial reported total discharges to Healthsouth of 155 patients in 1995, 155 in 1996 and 149 in 1997. Healthsouth's total admissions for 1996 and 1997, respectively, were 1463 and 1455. Assuming, that Healthsouth reasonably expects to lose $150,000 a year in pre-tax revenues as a result of the establishment of Martin Memorial's 15-bed SNU, that level of impact is not substantial, as compared to Healthsouth's revenues in excess of expenses, or profits of approximately $3.8 million in 1996. Considering the distance between Healthsouth and Martin Memorial, the differences in the intensity of the services they offer, and the historical absence of any substantial adverse impact on Healthsouth when closer referral hospitals established SNUs, Healthsouth has failed to establish that it will suffer an injury-in-fact if Martin Memorial initiates skilled nursing services in a 15-bed unit. Healthsouth failed to establish the reasonableness of the loss it projects, given the evidence that the average length of stay and number of cases likely to be redirected are overestimated. Assuming, nevertheless, the accuracy of Healthsouth's projections, the projected loss does not constitute a substantial adverse impact. Therefore, Healthsouth has failed to establish the facts necessary to support its claim of standing in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Martin Memorial's Motion to Dismiss the Petition to Intervene, filed by Healthsouth of Treasure Coast, Inc., d/b/a Healthsouth Treasure Coast Rehabilitation, and granting Certificate of Need No. 8847 to establish a 15-bed skilled nursing unit at Martin Memorial Medical Center, Stuart, Florida. DONE AND ENTERED this 1st day of July, 1998, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1998.
The Issue Whether HRS should license 23 comprehensive rehabilitation beds to TMRMC, at the same time reducing general acute care beds licensed at TMRMC by 23? Whether, prior to midnight June 30, 1983, TMRMC had 23 comprehensive rehabilitation beds in service?
Findings Of Fact There are "several buildings on the campus" (T. 21) at TMRMC, including the Extended Care Building on Hodges Drive which houses 53 hospital beds, and another building that houses 60 psychiatric hospital beds as well as 60 nursing home beds. Elsewhere there are an additional 598 hospital beds at TMRMC. TMRMC was licensed at 771 beds (including 60 nursing home beds) on February 3, 1983, when TMRMC's chief operating officer, J. Craig Honaman, wrote Mr. Konrad in HRS' Office of Health Planning and Development as follows: We would like to inform you of an alteration in our acute bed utilization and request your observations relating to the need for a Certificate of Need application to reassign the title of the bed function. Historically, Tallahassee Memorial Regional Medical Center has provided rehabilitative services to inpatients of an acute nature, as well as through a progressive care approach in a skilled facility.... Therefore, we intend to reassign the 53 beds currently utilized in the skilled nursing facility to a medical rehabilitation unit. The change would not affect our license bed capacity. Joint Exhibit No. 6. In reply, Mr. Porter wrote Mr. Honaman a letter dated February 17, 1983, stating: In that you have been providing rehabilitative services to inpatients on a continuous basis, and there will be no increase in licensed bed capacity, this reassignment of beds is not reviewable according to Chapter 10-5, Florida Administrative Cede, the Certificate of Need review process Petitioner's Exhibit No. 5. Effective June 8, 1983, Rule 10-5.11(24), Florida Administrative Code, set out a bed need methodology for comprehensive medical rehabilitation inpatient services. Effective July 1, 1983, Section 395.003(4), Florida Statutes, was amended to provide: The number of beds for the rehabilitation or psychiatric service category for which the department has adopted by rule a specialty-bed-need methodology under $381.494 shall be specified on the face of the hospital license. Before July 1, 1983, general acute care hospitals like TMRMC had been free to allocate beds among various specialty services on a day to day basis. Until September 1, 1984, HRS issued and renewed TMRMC's license authorizing it to operate a hospital without specifying the number of beds to be dedicated to specialty services. In the fall of 1983, TMRMC corresponded with Blue Cross, the medicare intermediary for Florida, requesting a distinct part provider number for rehabilitation services, and enclosing Mr. Porter's February 17, 1983, letter to Mr. Honaman. Blue Cross forwarded these materials to the Health Care Finance Administration (HCFA) in Atlanta, who then contacted HRS' Office of Licensure and Certification in Jacksonville for verification. The Office of Licensure and Certification advised HCFA that their records did not reflect rehabilitation beds licensed to TMRMC. EXPANDING SERVICES When Frances Elise Brown, now TMRMC's Technical Director of Rehabilitation, came to work at TMRMC in 1971, as a physical therapist, TMRMC did not offer speech therapy, occupational therapy or recreational therapy, and did not own what became the Extended Care Building. After TMRMC acquired the Extended Care Building, "there were some physical therapy services provided in that facility." (T. 107) Thereafter, the intensity of physical therapy services increased campus-wide, and in 1978 occupational therapy was "initiated both at Extended Care and in the hospital at the same time." Id. In 1980, TMRMC "initiated speech therapy, which again was delivered both in the hospital and Extended Care at the same time." (T. 107) In 1981, TMRMC acquired an existing outpatient facility that offered physical, occupational and speech therapy. TMRMC "provide[s] services indifferent areas, acute care, long-term, nursing home, home health, in/outpatient services." (T. 102) Recreational therapy and occupational therapy are also available at TMRMC; and TMRMC enjoys a good working relationship with Williams Orthotics a firm which fits braces and prostheses for patients who need them. Respiration therapy is available as are psychological counseling and the services of a social worker. Nursing services are available, although nobody specifically trained in rehabilitation nursing is on staff. A psychiatrist and an audiologist serve as consultants, but no physiatrist consults. No substantial changes in rehabilitation services being provided at Extended Care have occurred during the last three years or so, although it might have been during that period that a speech pathologist began spending more time (ten hours a week) at the Extended Care Building. (T. 119) Neither before or after Mr. Honaman's letter of February 3, 1983, announcing "an alteration in . . . acute [sick bed utilization," Joint Exhibit No. 6, and an "inten[t] to reassign the 53 [sic] beds," Joint Exhibit No. 6, did TMRMC "change anything about those beds." (T 69) For business reasons, TMRMC was waiting for a distinct part provider number for rehabilitation before proceeding. At one time the thought was to offer comprehensive rehabilitation services in a joint venture with Rehab Hospital Services Corporation, but negotiations collapsed in May of 1983. EXTENDED CARE The Extended Care Building has 23 beds "to the right . . . as one goes in" (T. 66) and 30 beds to the left, but there are no "delineated beds" (T. 116) reserved exclusively for patients in need of rehabilitation. The Extended Care Building houses medically stable patients who need skilled nursing services, whether or not they are suitable candidates for rehabilitation. Administratively distinct from TMRMC's acute care facility, the Extended Care Building as a whole has a part-time medical director and a distinct provider number, although TMRMC never received the provider number it sought for rehabilitation beds only. Patients admitted to the Extended Care Building from acute care facilities at TMRMC must first be discharged as acute care patients. They are admitted into the Extended Care Building "according to the screening criteria for extended care." (T. 116) There are no separate rehabilitation admission criteria. The average stay for patients in the Extended Care Building is approximately one month. On an application for hospital license, TMRMC listed the 53 beds in the Extended Care Building as extended care beds on June 22, 1977. On an application for hospital license dated September 7, 1977, TMRMC listed the 43 beds in the Extended Care Building under the category "SNF (D.P.)," meaning skilled nursing facility, distinct part. TMRMC reported the beds in this category through April 23, 1981, on its renewal applications for hospital licensure. On March 17, 1983, for the first time in a licensure application as far as the evidence shows, TMRMC listed the 53 beds in the Extended Care Building as "SNF/Rehab," meaning skilled nursing facility/rehabilitation. Joint Exhibit No. 1. INVENTORY TAKE A joint communication from the director of HRS' Office of Licensure and Certification and its deputy assistant secretary for health planning and development dated December 8, 1983, advised hospital administrators that HRS had "arrived at a count of the number of beds in each category for each hospital in Florida," went on to state: We are asking that each hospital review and verify or comment on these counts prior to final agency action. Petitioner's Exhibit No. 10. In response, TMRMC's Mr. Honaman wrote HRS' Jackie Jefferson on December 20, 1983, reporting "[v]arious errors." Petitioner's Exhibit No. 11. An attachment to Mr. Honaman's letter of December 20, 1983, reported 23 "Comprehensive Rehabilitation" beds at TMRMC. HRS caused notice to be published in the Florida Administrative Weekly on February 17, 1984, Vol. 10, No. 7 of its count of licensed beds in general hospitals by bed type by district, and reported no comprehensive rehabilitation beds at TMRMC. Petitioner's Exhibit No. 12. Mr. Honaman wrote Mr. Rond, administrator of HRS' Comprehensive Health Planning, stating that the "listing is incorrect, as previously reported to you . . . ." Petitioner's Exhibit No. After exchanging letters on the matter with John Adams, a licensure supervisor for HRS, Petitioner's Exhibit Nos. 15 and 16, TMRMC requested a formal administrative hearing. Petitioner's Exhibit No. 14. HRS memoranda written on July 26, 1984, reflected HRS' view that TMRMC had no comprehensive rehabilitation beds, Petitioner's Exhibit No. 8, and that recognition of such beds hinged on their being "CARF certified." Petitioner's Exhibit No. 9. CARF STANDARDS The Commission on Accreditation of Rehabilitation Facilities (CARF) publishes accreditation criteria and standards for facilities serving people with disabilities. The Extended Care Building meets the safety requirements for physical facilities laid down by CARF (T. 122) and most of the services that CARF requires be offered TMRMC does offer, but TMRMC's Ms. Brown conceded (outside the hearing) that comprehensive rehabilitation is not available at TMRMC. TMRMC's M. T. Mustian was also quoted at hearing as acknowledging that TMRMC does not have a comprehensive rehabilitation program within the meaning of Rule 10-5.11(24), Florida Administrative Code, which references the CARF standards. Implicit throughout the CARF standards is the concept of a distinct rehabilitation unit, and there are explicit references to, e.g., "staff organization under the chief executive." Petitioner's Exhibit No. 27, p. 11. "Designated staff should be assigned to the rehabilitation program. Id., p. 39. The standards require that a rehabilitation facility "have clearly written criteria for admission." Petitioner's Exhibit No. 27, p. 27. Beds should be placed in "a designated area which . . . is staffed . . . for the specific purpose of providing a rehabilitation program." Id., p. 39. With respect to medical staff, the standards provide that the "physician responsible for the person's rehabilitation program should possess training and/or experience in rehabilitation" and that the "physician should attend and participate actively in conferences concerning those served." Id., at 39. "Rehabilitation nursing" is to be furnished in addition to basic medical nursing. Id. No staff are assigned exclusively to the putative 23-bed unit, nor are records kept separately for rehabilitation beds. TMRMC does not employ a rehabilitation nurse anywhere. There is no medical director of the comprehensive rehabilitation program TMRMC claims to have. The admitting physician sets the course of treatment and decides about discharge. Admitting physicians do not ordinarily attend conferences scheduled with the other therapists. In comprehensive rehabilitation units, physical therapists or other specialists typically spend five hours or more daily with a single patient as opposed to the 30 to 45 minutes patients at TMRMC are likely to receive from any one therapist. There are no cancer or cardiac rehabilitation patients at TMRMC. The primary caseload consists of stroke victims, patients recovering from joint replacement surgery, "amputee[s and] a few close head injuries." (T. 103) Most patients are older than 45 or 50 and none are admitted under 16 years of age. TMRMC does not furnish vocational training or try to teach people with disabilities to drive automobiles. There is no formal "activities of daily living" program. PROPOSED FINDINGS CONSIDERED Both parties filed proposed recommended orders, and proposed findings of fact have been considered in preparation of the foregoing findings of fact. Proposed findings have been adopted, in substance unless unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS deny TMRMC's request to reclassify 23 of its licensed beds as comprehensive rehabilitation beds, without prejudice to a subsequent application if TMRMC obtains a certificate of need. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Florida. ROBERT T. BENTON II 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 17th day of May, 1985. COPIES FURNISHED: Alfred W. Clark, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 Lesley Mendelson, Esquire and John Carlson, Esquire Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 David Pingree, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301
