The Issue The issues involved in this case, as stipulated to by the parties, are as follows: Issues Remaining to Be Litigated Again, because of their inability to separate the purely factual issues from those which also involve legal determinations, the parties have combined below all issues which remain to be litigated. 1A. Was it proper for DHRS to compute the formula for need contained in FACs 10- 5.11(25)(a)1-3 on a subdistrict basis? 1B. Even if the answer is "yes", did DHRS properly use the result of such a computation as a reason for denying Charter- Ocala's application in this case? 2A. Was it proper for DHRS to take into account both existing and approved beds in computing the occupancy standard formula contained in FACs 10-5.11(25)(d) 5? 2B. Even if the answer is "yes," did DHRS properly use the results of such a computation as a reason for denying Charter- Ocala's application in this case? Does the level of Charter-Ocala's indigent care commitment cause its application not to fully meet the requirement in subsection 8 of Fla. Stat. s 381.494(6)(c) that the proposed services "be accessible to all residents of the service district"? Is the proposed project financially feasible in the long term? Will the proposed project result in an increase in health care costs? In light of all factors, should Charter-Ocala's application be granted?
Findings Of Fact GENERAL Procedural. On or about October 15, 1985, the Petitioner filed an application for a certificate of need with the Respondent. On or about December 26, 1985, the Petitioner filed amendments to its application. On or about February 27, 1986, the Respondent issued a State Agency Action Report proposing to deny the Petitioner's application. On March 27, 1986, the Petitioner filed a Petition for Formal Administrative Hearing with the Respondent. The Petition was forwarded to the Division of Administrative Hearings and was assigned case number 86-1466. On November 12, 1986, the parties filed a Prehearing Stipulation in which they agreed to certain facts and conclusions of law. The facts agreed upon by the parties are hereby adopted as findings of fact. The Parties. The Petitioner is a free-standing 68-bed short-term psychiatric and substance abuse specialty hospital located in Ocala, Florida. The 68 beds consist of 48 short-term psychiatric beds and 20 substance abuse beds. The Petitioner began operating on October 17, 1985. The Respondent is the agency responsible for determining whether the Petitioner's proposal should be approved. The Petitioner's Proposal. In its application, the Petitioner has proposed an expansion of its existing 48 short-term psychiatric beds by 24 beds. The Petitioner proposed that the 24 additional beds consist of 10 beds in a geriatric psychiatric unit and 14 beds in an adult psychiatric unit. The total proposed cost of the additional beds was $1,491,850.00. The Petitioner amended the total proposed cost to $1,213,880.00 on December 26, 1985. At the final hearing, the Petitioner represented that it will operate an adult eating disorder program in the new 14-bed psychiatric unit. NEED FOR ADDITIONAL SHORT-TERM PSYCHIATRIC BEDS. A. General. The Petitioner's existing facility for which additional beds are sought is located in Ocala, Marion County, Florida. Marion County is located in the Respondent's planning district 3. District 3 consists of Alachua, Bradford, Citrus, Columbia, Dixie, Gilchrist, Hamilton, Hernando, Lafayette, Lake, Levy, Marion, Putnam, Sumter, Suwannee and Union Counties. The existing providers of short-term psychiatric services in district 3 in addition to the Petitioner consist of Alachua General Hospital, Shands Teaching Hospital, Lake City Medical Center, Munroe Regional Medical Center and Lake Sumter County Mental Health Clinic. The District III Health Plan divides the district into 2 subdistricts: southern and northern. The southern subdistrict includes Citrus, Hernando, Lake, Marion and Sumter Counties. The northern subdistrict consists of Alachua, Bradford, Columbia, Dixie, Gilchrist, Hamilton, Lafayette, Levy, Putnam, Suwannee and Union Counties. Marion County is located in the northern portion of the southern subdistrict. Ocala, which is located in the northern portion of Marion County is approximately 20 miles from the border of the subdistricts. B. Rule 10- 5.011(1)(o), Florida Administrative Code. The projected population of district 3 in 1990 is 972,450. Based upon the projected population of district 3 in 1990, there is a gross need for 340 short-term psychiatric beds for district 3 in the relevant planning horizon year 1990. There are 316 licensed and approved short-term psychiatric beds for district 3. There is a net need for 24 short-term psychiatric beds for district 3 in 1990. Of the 316 licensed and approved short-term psychiatric beds located or to be located in district 3, 149 are located in hospitals holding a general license and 167 are located in specialty hospitals. Multiplying the projected 1990 district 3 population by a ratio of .15 beds per 1,000 population indicates a gross need for 146 short-term psychiatric beds in hospitals holding a general license. There will be a net surplus of three beds located in hospitals holding a general license in 1990 (146 beds needed less 149 licensed and approved beds). Multiplying the projected 1990 district 3 population by a ratio of .20 beds per 1,000 population indicates a gross need for 194 short-term psychiatric beds which may be located in specialty hospitals. There will be a net need of 27 beds which may be located in specialty hospitals (194 beds needed less 167 licensed and approved beds). The approval of the Petitioner's proposal will not create an imbalance between specialty beds and general beds in district 3 for 1990. There is sufficient need for additional beds in district 3 for approval of the Petitioner's proposal. Occupancy. Objective 1.2 of the State Health Plan provides: dditional short-term inpatient hospital psychiatric beds should not normally be approved unless the average annual occupancy rate for all existing and approved adult short-term inpatient psychiatric beds in the service district is at least 75 percent ... [Emphasis added]. The occupancy rates in 1985 for the existing short-term psychiatric beds in district 3 were as follows: Facility Beds Occupancy Alachua General Hospital 30 77.5 percent Shands Teaching Hospital 42 77.8 percent Lake City Medical Center 9 69.2 percent Munroe Regional Medical Center 18 56.4 percent Lake/Sumter County Mental Health 18 88.0 percent. The average occupancy rate for the existing facilities listed in finding of fact 27 is 75.5 percent. There are 151 short-term psychiatric beds approved for district 3 which are not yet operational. The occupancy rate of the existing and approved beds of district 3 is less than 75 percent. The approved beds should be assumed to have a 0 percent occupancy since they are not in use. Planning Guideline 2 of the District III Health Plan provides: Additional inpatient psychiatric services should not be developed until existing or approved services reach the occupancy standards Specified in the State Inpatient Psychiatric ... Rule. The occupancy standard Specified in the State Inpatient Psychiatric Rule is 75 percent. It is reasonable to expect that approved beds will affect existing occupancy rates when the beds become operational. Consumer demand for short-term psychiatric beds cannot expand indefinitely to meet supply. Since 48 percent of the licensed and approved beds for district 3 are approved beds, it does not make sense to ignore approved beds. Applying the occupancy standard on a subdistrict basis, licensed beds in the southern subdistrict had an average occupancy rate of 72.2 percent for 1985 (excluding the Petitioner's existing beds). If the 51 approved beds at Community Care of Citrus, 35 approved beds in Hernando County and the 15 approved beds at Lake/Sumter Mental Health are taken into account, the occupancy rate is Substantially lower. The Petitioner's proposal does not meet the occupancy standards of the state health plan or the district health plan (on a district or subdistrict basis). Subdistrict Allocation of Bed Need. Planning Guideline 4 of the District III Health Plan provides: Needed inpatient psychiatric ... beds will be allocated within the District based on the proportion of need generated in each planning area using the State methodology. The northern and southern subdistricts are the appropriate planning areas under the district health plan. The projected population for the southern subdistrict for 1990 is 549,536. Applying the state methodology to the southern subdistrict, there will be a gross need for 192 short-term psychiatric beds in 1990. Subtracting the 84 licensed and 101 approved beds yields a net need for 7 short-term psychiatric beds for the southern subdistrict for 1990. Of the 192 gross beds needed for the southern subdistrict in 1990, 82 should be located in hospitals holding a general license and 110 may be located in specialty hospitals. There are 66 licensed and 101 approved beds located or to be located in specialty hospitals in the southern subdistrict. Therefore, under the district health plan, there will be a surplus of 57 short-term psychiatric beds located in specialty hospitals in the southern subdistrict in 1990. All existing and approved short-term psychiatric specialty hospitals for district 3 are or will be located in the southern subdistrict; there are no specialty hospitals located or approved for the northern subdistrict. The Petitioner is the closest specialty hospital to the northern district. There is insufficient need for the Petitioner's proposal in the southern subdistrict of district 3 under the district health plan. Until December, 1985, or early 1986, the Respondent's policy and practice was to apply the need formula of Rule 10-5.11(25)(d), Florida Administrative Code, on a district-wide basis, not on a subdistrict basis. In approximately December, 1985, or early 1986, the Respondent implemented a new policy of reviewing the need for proposed short-term psychiatric services on a subdistrict basis in the applicable district health plan recognized subdistricts. This new policy was based upon a new interpretation of existing statutes and rules. Specifically, the Respondent relied upon Rule 10-5.011(1), Florida Administrative Code, and Section 381.494(6)(c)1, Florida Statutes, which direct an evaluation of the relationship between proposed services and the applicable district health plan in reviewing certificate of need applications. The evidence failed to prove: (a,) when the policy was formulated; (b) who was responsible for the formulation and implementation of the policy; and (c) whether any sort of investigation, study or analysis was performed or relied upon in connection with the policy. The effect of this policy can be outcome-determinative in that it can cause an application for a certificate of need to be denied. Prior to the adoption of the policy, the Respondent Promulgated Rule 10-17, Florida Administrative Code, which Provided for sudistricting of district This rule was repealed. Geographic Access. A small portion of the population of district 3 is within a maximum travel time of 45 minutes from the Petitioner's facility. Only 36 percent of the district 3 population is within 45 minutes driving time from the Petitioner's facility. The Petitioner's facility is located near the center of district 3. Approximately 60 percent of the population of district 3 is located within 60 minutes travel time from Ocala. There are excellent transportation routes from parts of the northern subdistrict to Ocala, including Interstate Highway 75 and U.S Highways 27, 301 and 441. Approximately 73 percent of the Petitioner's Patients during its first year of operation came from the southern subdistrict. Of those Patients, approximately 58 percent were from Marion County and 15 percent were from other southern subdistrict counties, including 10.5 percent from Citrus County and none from Hernando County. Approximately 15 percent of the Petitioner's patients during its first year of operation came from the northern subdistrict: 8 percent from Alachua County, 1.7 percent from Putnam, 1.2 percent from Bradford, .2 percent from Union, Suwannee and Gilchrist, .7 percent from Columbia and none from Hamilton, Lafayette, and Dixie. Approximately 12 percent of the Petitioner's patients during its first year of operation came from outside of district 3. Other Factors Approximately 16 percent to 17 percent of Marion County's population was 65 years of age or older in 1980. By 1990, the 65 and older population is projected to increase to approximately 22 percent. Approximately 28 percent of the population of the southern subdistrict is projected to be 65 or older in 1990. Top of the World, a retirement community, is being developed 10 to 15 miles from the Petitioner's present location. There is a large population of females aged 18 to 30 attending the University of Florida. The University is located in Gainesville which is within a 40 to 50 minute drive time from the Petitioner's present location. There are over 83,000 females aged 15-44 residing in Alachua and Marion Counties. Young adult females have the highest incidence of eating disorders such as bulimia and anorexia. From a clinical and programmatic perspective, to provide optimal therapy for geriatric and eating disorder patients: (1) the patients should be separated from the general psychiatric population; (2) the staff should be specially trained to deal with the unique problems posed by the two types of patients; and (3) the program and physical surroundings should be specially designed to accommodate the needs of the patients and to facilitate the rendition of services to patients. The Petitioner represented in its application that the Petitioner has a 16-bed geriatric program. Munroe Regional and Marion-Citrus Mental Health Center and Lake/Sumter Mental Health Supported the Petitioner's original application for its present facility based in part on the Petitioner's representation that 16 beds would be designated as geriatric beds. A facility for Citrus County with 51 beds has been approved which will have a gerontology program. In Hernando County 35 beds have been approved which includes a gerontology program. Seven letters of Support were submitted with the Petitioner's application. Only one of those letters mentions geriatric beds. No mention of an alleged need to provide an eating disorder program was mentioned by the Petitioner in its application. Eating disorder patients are treated at Shands in Gainesville, Alachua County, Florida. There are no existing or approved Specialized geriatric or eating disorder programs in district 3. The Petitioner Should be able to recruit physicians and other medical professionals to staff its proposed programs. ECONOMIC ACCESS. The Petitioner's admissions criteria include the ability to pay. The Petitioner has projected that 1.5 percent of patient revenues from the operation of the 24 additional beds will be attributable to indigent care. This amount is low. Applicants generally propose 3 to 7 percent indigent care. Generally, Short-term psychiatric Services are accessible to all residents of district 3. The evidence failed to prove, however, that short-term psychiatric Services in specialty hospitals are readily accessible to indigent residents. Munroe Regional Medical Center and Lake/Sumter County Mental Health provide psychiatric services to indigents. Lake/Sumter was recently granted a certificate of need authorizing it to move to Leesburg and to expand its hospital to include 33 short-term psychiatric beds which will be devoted almost exclusively to the treatment of indigents. These facilities are not specialty hospitals, however. The Petitioner's projected care of indigents does not include free evaluations and assessments provided at the Petitioner's counseling centers. In light of the fact that the Petitioner takes into account the ability to pay, however, this service will not significantly increase the care provided to indigent patients or accessibility of services to indigents. During the Petitioner's first year of operation it provided indigent care of approximately 4 percent of total revenues. It is therefore likely that the Petitioner will exceed its projected 1.5 percent indigent care. The Petitioner did not prove how much of an increase can be expected, however. The Petitioner has a corporate policy never to deny admission to a patient in need of emergency treatment because of inability to pay. The Petitioner's proposal will not significantly enhance services available to indigents. FINANCIAL FEASIBILITY AND IMPACT ON COSTS. 8O. If the Petitioner's proposal is considered based upon the need for additional beds in the district, it will be financially feasible. Its projected patient day projections are reasonable based upon district-wide need. If need is determined only on a district-wide basis, the opening of approved beds will not negatively affect the Petitioner's referral patterns or patient base. If need is determined only on a district-wide basis, the cost of psychiatric services in district 3 will not be negatively impacted by the Petitioner's proposal. If need is determined on a subdistrict basis, the Petitioner's proposal will not be financially feasible. There is insufficient need in the southern subdistrict for the Petitioner to achieve its patient day projections on a subdistrict basis. Planning Guideline 6 of the District III Health Plan provides: Providers proposing to expand or establish new psychiatric facilities should document that these services will not duplicate or negatively affect existing programs in the region. In light of the existence of an excess of 57 short-term psychiatric beds for the southern subdistrict based upon a subdistrict allocation of bed need, the Petitioner's proposed new beds will duplicate beds in existence or approved beds. If need is determined on a subdistrict basis, the cost of psychiatric services in the southern subdistrict will be negatively impacted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for the addition of 24 short- term psychiatric beds be approved. DONE and ORDERED this 13th day of March, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1987. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ". Petitioner's Proposed Findings of Fact: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 7, 9-10 and 12. 2 RO 13-14. 3 RO 13 and 16. 4 RO 17. 5 RO 51. 6 RO 54 and 61. 7 RO 54. 8-10 Irrelevant. 11 RO 58-59. 12 RO 59. 13 The first sentence is accepted in RO 60. The second sentence is irrelevant. 14 RO 61-63. 15 Irrelevant. 16 RO 20 and 22. 17 RO 43. 18 RO 19. 19 RO 19-21. 20 RO 23. 21 RO 24. 22 RO 28. The last sentence is irrelevant. 23 RO 1, 9-10 and 12. 24 Irrelevant. It has been stipulated that the quality of care criterion has been met. 25 RO 64. 26 RO 71. The first sentence is accepted in RO 70. The second sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 29-30 Irrelevant. 31 RO 55-56. 32 RO 74. RO 75. The last sentence is not supported by the weight of the evidence. RO 73 and 76. The Petitioner did not commit to provide 1.5 percent of total revenues it committed to provide 1.5 percent of revenues from the 24 beds. The last sentence is irrelevant. 35 RO 77. 36 RO 78. 37 Not supported by the weight of the evidence. 38-39 and 41 If need is determined on a district- wide basis these proposed findings of fact are true. If, however, need is determined on a subdistrict basis these proposed findings of fact are not supported by the weight of the evidence. See RO 80 and 83. 40 Irrelevant. 42-44 Cumulative. See RO 80 and 83. 45 and 46 Not supported by the weight of the evidence. 47-48 Irrelevant. If need is determined on a district-wide basis these proposed findings of fact are true. If, however, need is determined on a subdistrict basis these proposed findings of fact are not supported by the weight of the evidence. See RO 82 and 85. Irrelevant. The first sentence is statement of the law. The last sentence is irrelevant. This is a de novo proceeding. How the Respondent reached its initial decision is irrelevant. The rest of the proposed finding of fact is accepted in RO 50. Statement of law. 52 RO 45. 53 RO 46. 54 RO 47. 55 Irrelevant. 56 RO 48. 57 RO 49. Irrelevant. Conclusion of law. Irrelevant. 61-62 Prehearing Stipulation. Irrelevant. The parties have stipulated that the portion of the rule mentioned in the first sentence is met. The proposed finding of fact is also a discussion of law. It is therefore rejected. 65-67 Consideration of the state health plan is statutorily required. The Respondent does not apply the occupancy standard of the state health plan as a matter of policy, therefore. These proposed findings of fact are therefore irrelevant to the extent that they apply to the determination concerning the state health plan. To the extent that they pertain to the occupancy standard of the district health plan, they are hereby adopted. Conclusion of law. Irrelevant. The first sentence is irrelevant. The second sentence is contained in the Prehearing Stipulation as a stipulated fact. 71 RO 30. 72 Irrelevant and conclusion of law. 73-82 Irrelevant. Respondent's Proposed Findings of Fact 1 RO 1, 3-4, 9 and 11 2 RO 7 and 13. 3 RO 19. 4-6 Prehearing Stipulation. 7 8 and 9 RO 26. RO 27-28. The last sentence is 10 contrary to the facts stipulated to by the parties. The parties have stipulated that existing beds meet the occupancy standard. This proposed finding of fact is therefore unnecessary. RO 29. 11 RO 30 and 32-33. 12 RO 31. 13 RO 16 and 36. 14 RO 34. 15 RO 37-41. There are 84 licensed beds not 81. 16-17 Irrelevant. 18 RO 55-56. The evidence established that "at least" 73 percent of the Petitioner's patients originate from the southern subdistrict not that more than 73 percent. 19 RO 43. 20 Hereby accepted. 21 RO 51. RO 10 and 64. The first sentence is accepted in RO 65. The rest of the proposed finding of fact is uncorroborated hearsay. 24 RO 67. RO 12 and 68. Irrelevant or based upon uncorroborated hearsay. Not a finding of fact. Not supported by the weight of the evidence. 29 RO 84-85. 30 Statement of law. 31 RO 72-73. 32 RO 85. 33 RO 83. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandra Stockwell, Esquire Culpepper, Pelham, Turner & Mannheimer 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302-3300 J. Kevin Buster, Esquire Ross O. Silverman, Esquire King & Spalding 2500 Trust Company Tower Atlanta, Georgia 30303
Conclusions THIS CAUSE comes before the Agency For Health Care Administration (the "Agency") concerning Certificate of Need ("CON") Application No. 10131 filed by The Shores Behavioral Hospital, LLC (hereinafter “The Shores”) to establish a 60-bed adult psychiatric hospital and CON Application No. 10132 The entity is a limited liability company according to the Division of Corporations. Filed March 14, 2012 2:40 PM Division of Administrative Hearings to establish a 12-bed substance abuse program in addition to the 60 adult psychiatric beds pursuant to CON application No. 10131. The Agency preliminarily approved CON Application No. 10131 and preliminarily denied CON Application No. 10132. South Broward Hospital District d/b/a Memorial Regional Hospital (hereinafter “Memorial”) thereafter filed a Petition for Formal Administrative Hearing challenging the Agency’s preliminary approval of CON 10131, which the Agency Clerk forwarded to the Division of Administrative Hearings (“DOAH”). The Shores thereafter filed a Petition for Formal Administrative Hearing to challenge the Agency’s preliminary denial of CON 10132, which the Agency Clerk forwarded to the Division of Administrative Hearings (‘DOAH”). Upon receipt at DOAH, Memorial, CON 10131, was assigned DOAH Case No. 12-0424CON and The Shores, CON 10132, was assigned DOAH Case No. 12-0427CON. On February 16, 2012, the Administrative Law Judge issued an Order of Consolidation consolidating both cases. On February 24, 2012, the Administrative Law Judge issued an Order Closing File and Relinquishing Jurisdiction based on _ the _ parties’ representation they had reached a settlement. . The parties have entered into the attached Settlement Agreement (Exhibit 1). It is therefore ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The Agency will approve and issue CON 10131 and CON 10132 with the conditions: a. Approval of CON Application 10131 to establish a Class III specialty hospital with 60 adult psychiatric beds is concurrent with approval of the co-batched CON Application 10132 to establish a 12-bed adult substance abuse program in addition to the 60 adult psychiatric beds in one single hospital facility. b. Concurrent to the licensure and certification of 60 adult inpatient psychiatric beds, 12 adult substance abuse beds and 30 adolescent residential treatment (DCF) beds at The Shores, all 72 hospital beds and 30 adolescent residential beds at Atlantic Shores Hospital will be delicensed. c. The Shores will become a designated Baker Act receiving facility upon licensure and certification. d. The location of the hospital approved pursuant to CONs 10131 and 10132 will not be south of Los Olas Boulevard and The Shores agrees that it will not seek any modification of the CONs to locate the hospital farther south than Davie Boulevard (County Road 736). 3. Each party shall be responsible its own costs and fees. 4. The above-styled cases are hereby closed. DONE and ORDERED this 2. day of Meaich~ , 2012, in Tallahassee, Florida. ELIZABETH DEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement, attached hereto and incorporated herein as Exhibit “1.” Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ka “a day of December _., 2014, in Tallahassee, Florida. CHL Yo ELIZ ETH DUDEK, SECRETARY Agency for Health Care Administration Final Order Engagement No. NH11-002L Page 1 of 3 Filed January 7, 2015 8:00 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. John E. Terrel, Esquire Agency for Health Care Administration 1700 North Monroe Street Bureau of Finance and Accounting Suite 11-116 (Interoffice Mail) Tallahassee, Florida 32303 (Via U.S. Mail) Bureau of Health Quality Assurance Agency for Health Care Administration (Interoffice Mail) Stuart Williams, General Counsel Zainab Day, Medicaid Audit Services Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Interoffice Mail) Shena Grantham, Chief Willis F. Melvin, Jr., Esquire Medicaid FFS Counsel Assistant General Counsel (nteroffice Mail) Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 (Via Interoffice Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Final Order Engagement No. NH11-002L Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to ¢ ; the above named addressees by U.S. Mail on this the 2s day of | , 2014. Rickard J. Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Final Order Engagement No. NH11-002L Page 3 of 3
The Issue The issue for determination is whether either applicant's request for a CON for IRTP beds should be granted. LORTC's allegation that La Amistad plagiarized portions of another PIA facility's CON application was deemed at hearing to be irrelevant. Likewise, it was determined at hearing and in a post- hearing order entered on November 1, 1988, that the sale of La Amistad to UHS of Maitland, Inc. had no material bearing on the La Amistad application under review here. In the parties' prehearing statement filed on September 26, 1988, the following were agreed: Consideration of the applications at issue is governed by the statutory criteria contained in section 381.705, Florida Statutes and Rule 10- 5.011(1)(b)(1)-(4), Florida Administrative Code. These criteria are either satisfied or are inapplicable: Section 381.705(1)(g), (h), (only as to the following clauses: "the effects the project will have on clinical needs of health professional training programs in the service district; the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in a limited number of facilities"), (j), Florida Statutes (1987) As to LORTC, the parties stipulated that the criteria in Section 381.705(1)(h) as to availability of funds for capital and operating expenditures is satisfied. This is not a stipulation that the application satisfies the financial feasibility criterion contained in Section 381.705(1)(i). Rule 10-5.011(1)(b)(4)(b) , Florida Administrative Code. Each applicant argues that its application, and not that of the other, should be approved. HRS and West Lake both argue that neither application should be approved.
Findings Of Fact La Amistad is a not-for-profit corporation providing a variety of mental health services to children, adolescents and young adults on campuses in Maitland and Winter Park, Florida since 1970. At the time of hearing La Amistad operated 27 licensed IRTP beds at its Maitland campus. At the time of hearing La Amistad had a contract to sell its residential treatment program, including the beds that are the subject of this proceeding, to Universal Health Services, Inc. The contract was entered into after this CON application was filed. LORTC is a wholly owned subsidiary of PIA, Psychiatric Hospitals, Inc. (PIA), which in turn is wholly owned by NME Hospitals, Inc. PIA owns or operates approximately three residential treatment centers (RTCs) and 58 psychiatric hospitals throughout the country, including Laurel Oaks Hospital in Orange County, Florida, an 80-bed licensed hospital providing short term psychiatric and substance abuse services to children and adolescents. HRS is the state agency charged with the responsibility of implementing and enforcing the CON program, pursuant to Section 381.701-381.715, Florida Statutes. The Intervenor, West Lake, is an 80-bed licensed psychiatric hospital in Longwood, Seminole County, Florida. West Lake has allocated 16 beds to its children's program and 24 beds to its adolescent programs. West Lake is licensed for both long and short-term psychiatric beds. THE APPLICATIONS La Amistad's application requests the conversion of 13 existing beds (currently licensed as child caring beds) to licensed IRTP beds, the demolition of several old buildings and the construction of a new building which will contain a total of 16 IRTP beds. The 13 additional beds would bring La Amistad's IRTP total to 40 beds. The total project cost of La Amistad's proposal is $500,000.00 or $38,462.00 per bed. La Amistad's Maitland facility is located in a residential area and is itself designed to be residential in nature, rather than institutional. The patients prepare their own food under the supervision of a dietician and other staff. They also do their own housekeeping. La Amistad is not a "locked unit". A maximum of 16 patients reside in each "house" on the La Amistad campus. The houses are staffed on a 24-hour a day basis. Like other similar facilities, La Amistad utilizes a multi-discipline team approach to treatment. That is, psychiatrists, nurses, social workers and other staff work together. The treatment team meets weekly to discuss the program and treatment of each patient. Family members may visit and stay at the campus on weekends. Families are encouraged to participate in the treatment process. La Amistad has a full-time school on campus with teachers provided by the Orange County School System. The average length of stay for patients is in excess of Il to 12 months. This is consistent with HRS' understanding that 9-14 months is an average length of stay for an intensive residential treatment program. LORTC's application is for CON approval of a 40-bed IRTP located on the grounds of its existing freestanding psychiatric hospital, Laurel Oaks. The facility is currently under construction and will be operated as a residential treatment center if its IRTP CON is denied. LORTC anticipates serving two out of three of the following groups: adolescents who need long-term care, older children (8 years to 13 years) who need long-term care, and chemically dependent adolescents. The projected average length of stay is 120 days, which stay is consistent with that of other PIA residential treatment centers in Florida. The LORTC facility will be "locked". Meals will be prepared at Laurel Oaks Hospital and will be transported in some, as yet undetermined, manner to the separate building. The geographical area in which LORTC will be located is not residential. The capital cost of the 40 bed facility is projected at $3,291,000.00. The funds, provided by the parent company, NME, will be expended, regardless of CON approval. LORTC also uses a multi-discipline team approach to treatment. Each patient's treatment program will consist of psychiatric support services, educational services and family services. Students will attend academic classes four hours a day at the facility. THE APPLICABLE DISTRICT PLAN AND STATE HEALTH PLAN The District Seven Health Plan does not address needs, policies, or priorities for IRTP facilities for children and adolescents. The State Health Plan addresses very generally the need for mental health and substance abuse services. Goal 1 seeks to: "Ensure the availability of mental health and substance abuse services to all Florida residents in the least restrictive setting." Goal 2 seeks to: Promote the development of a continuum of high quality, cost effective private sector mental health and substance abuse treatment and preventive services". Goal 3 seeks to: "Develop a complete range of essential public mental health services in each HRS district." (Laurel Oaks Exhibit #20). The applications neither violate nor materially advance these goals. In both instances the beds will exist for the provision of mental health services, with or without the certificate of need. La Amistad's proposal clearly presents a "less restrictive alternative" to the more institutional psychiatric hospital. Laurel Oaks is also an alternative, although more institutional than homelike in character. NEED, INCLUDING THE AVAILABILITY OF LIKE OR ALTERNATIVE SERVICES AND INCREASED ACCESSIBILITY IRTP beds are a statutorily defined class of specialty hospital beds: Intensive residential treatment programs for children and adolescents means a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. Section 395.002(8), Florida Statutes. Because an IRTP is a hospital, a certificate of need is required. This alone distinguishes an IRTP from a residential treatment program (RTP). In spite of its name, HRS considers an IRTP as a service that is less intensive than a long or short term psychiatric hospital. Generally, the RTP and IRTP have a longer average length of stay than a psychiatric hospital and provide a more homelike setting. No HRS rule further defines the IRTP, and as evidenced by the La Amistad and LORTC proposals, the projected average length of stays vary widely (120 days for LORTC, versus 12-14 months for La Amistad). Long term psychiatric hospitals have an average length of stay of over 90 days. West Lake has treated adolescents in its psychiatric beds as long as a year, although this has not occurred recently. HRS has no rule methodology for calculating the need for IRTP's. However, HRS considers there is a need for at least one reasonably-sized IRTP in each HRS service district. In HRS district VII there are currently two IRTPs: Devereaux, a 100-bed facility in Melbourne, Brevard County, Florida, licensed on February 26, 1988; and La Amistad, with 27 IRTP beds in Orange County, licensed in August, 1988. Although HRS clearly does not limit its approval to only one IRTP per district, it has a policy of waiting to see what the need and demand are before it authorizes an additional program with a CON. Its deviation from this policy regarding approval of the La Amistad beds was adequately explained as a settlement based on the acknowledgment of a prior administrative error. Utilization of the Devereaux beds was not a consideration in that unique case. HRS also uses as a reasonable non-rule policy the requirement that existing programs be 80 percent occupied before additional programs are authorized. This is modeled after the promulgated rule in effect for long-term psychiatric beds. At the time the applications were considered, La Amistad was not licensed and Devereaux had a less than 50 percent occupancy. Conflicting evidence was presented with regard to the accessibility of both La Amistad's 27 beds and Devereaux' 100 beds. Devereaux is approximately one to two hours from the three counties identified as LORTC's primary service area: Seminole, Osceola and Orange. LORTC argues that families who need to actively participate in the patients' treatment are discouraged by the travel distance. However, Laurel Oak Hospital currently refers patients to its sister facilities in Manatee and Palm Beach counties, which are more distant than Devereaux. No patient origin studies of Devereaux were done and LORTC's expert in health and planning conceded that it takes a while for people to become aware of a new facility and its services, and a new facility can stimulate patient migration. The credible weight of evidence is that a travel time of two hours or less would not significantly influence decisions to use the facility. La Amistad is noted for its treatment of schizophrenics. It sponsors seminars attracting participants from a wide geographical area. It does not, however, limit its beds to patients with that diagnosis. In the past approximately 48 percent of La Amistad's beds (its entire facility, not just the IRTP beds) have been utilized by schizophrenics. This does not alone evidence non-accessibility of its IRTP beds. The statutory definition of an IRTP, cited in paragraph 17, above, is broad enough to include the type of care provided in long-term psychiatric hospitals, such as West Lake. The programs described in the applications of both LORTC and La Amistad are similar to the programs currently operated at West Lake for children and adolescents. The multi-disciplinary team monitors the patient's progress with a goal toward reintegration into the community. The patients attend school and receive a wide variety of therapies, with varying intensity: individual and group counseling, activity and occupational therapy, family therapy, vocational planning, and the like. When the patient is admitted, an evaluation is done to determine an anticipated length of stay. Some require a shorter stay, with more intensive therapy; others are more appropriately treated for a longer period, with less intensity. West Lake's program is not full. There are myriad alternative programs for the treatment of children and adolescents in the tri-county area. Seagrave House, the Charlie Program and Boystown are residential programs for children and adolescents who may have received treatment in a hospital but who are not ready to return home and could progress further in a residential program. Mainstream, a partial hospitalization program, is also available to this age group. A partial hospitalization program provides structured daytime treatment with the same therapies offered in a hospital or full residential program, but the patients are able to return home at night. Other existing facilities and programs available in the service district include Parkside Lodge, the Care Unit, the Center for Drug-free Living, Glenbeigh Hospital and Rainbow. Laurel Oaks has referred patients to Rainbow, a residential treatment program for youths with substance abuse problems. La Amistad presented anecdotal testimony from its clinical and other staff regarding the numbers of patients they could refer to La Amistad if the application were approved. In no instance did these witnesses eliminate the other available programs as appropriate alternatives. Several other witnesses testified on behalf of LORTC regarding the need for additional long-term treatment programs for children and adolescents. It is clear, however, that these individuals from the Orange County Public Defender's office, the Orange County Public Schools and the Seminole County Mental Health Center were descrying the need for services for economically disadvantaged youths and those without insurance. Neither La Amistad nor LORTC propose to materially serve that population. Medicaid funds are not available to licensed speciality hospitals and both La Amistad and LORTC will serve patients referred and paid for by HRS, with or without an IRTP CON. The projected percentage of non-pay patient days in both applications is negligible. Any consideration of alternatives in this case must consider the alternatives of the applicants themselves. In both cases, the beds will be available with or without the CON, and the treatment programs are substantially the same with or without the CON. Denial of these applications will not decrease the potential supply of beds in District VII. Indeed, LORTC candidly argues that it is asking only that HRS assist in enhancing financing access to its beds, that CON approval and subsequent licensure will provide increased access to patients with insurance which will not reimburse non- hospital based care. LORTC, and to a lesser degree, La Amistad, insist that approval will positively impact access for privately insured patients. The weight of evidence does not support that basic contention in this case. PIA's non-hospital RTCs in Palm Beach and Manatee County claim to have a 60-70 percent commercial insurance pay or mix. LORTC projects only 67 percent commercially insured patients after its first year of operation. This does not represent an increase. According to its financial experts La Amistad is not projecting any increase in insurance reimbursement because of licensure as an IRTC. Two trends in insurance reimbursement practices were described at length in this proceeding. First, companies are willing to negotiate an "out-of- contract" reimbursement when a non-covered facility is able to show that its services are more appropriate and in the long term, more cost effective than the covered services for a particular patient. Second, insurance companies are carefully scrutinizing long term treatment reimbursement and are limiting coverage in expensive residential programs. Neither trend weighs in favor of approval of these applications. AVAILABILITY OF RESOURCES Nursing costs in health care institutions usually comprise more than 50 percent of the operating costs. It is the largest single budget item in a hospital or health care facility. Throughout the country and in District VII, there is a shortage of nurses and trained allied health personnel. Although Laurel Oaks Hospital is staffed, maintaining its staff of registered nurses is a day-to-day problem. West Lake also experiences difficulty in maintaining qualified staff. No doubt LORTC, with aggressive recruitment will initially attract the personnel it needs. Financial incentives will have to be provided and West Lake's problems will be exacerbated. The additional costs will be passed on to the consumer, thus perpetuating the upward inflation spiral of health care costs. FINANCIAL FEASIBILITY AND EFFECTS ON COMPETITION La Amistad states it intends to finance $450,000.00 of its $500,000.00 total project cost through bank loans, fund raising efforts and personal commitments from board members. Its pro forma, as corrected and updated at the hearing is reasonable, based upon the facility's actual experience in staffing and filling beds. However, the ability of the applicant itself to complete construction for the replacement beds is questionable in light of an admission at hearing by Walter Muller, M.D., the founder and Medical Director of La Amistad. Dr. Muller conceded that one of the reasons for the sale to Universal Health is to obtain adequate funds for the new building. (transcript pages 271-272). LORTC contends that no capital expenditure is relevant here as the facility is being constructed as a non-hospital RTC. For the transfer to IRTC status no additional expenses will be incurred. Regardless of the validity of that contention, the parties have stipulated that funds are available for capital and operating expenditures. LORTC's pro forma is reasonable based on the extensive experience of its parent company with similar facilities, the RTCs in Manatee County and Palm Beach County, and Laurel Oaks Hospital. That experience has not been tested in an area, where, as here, there are existing unfilled IRTPs. As provided in the discussion of need, above, LORTC cannot dismiss West Lake, Devereaux, La Amistad and other facilities offering similar programs. LORTC did not establish conclusively that it could maintain its projected utilization in the face of the potential draw of those other facilities. PIA has been highly successful in marketing its services in the past. If its success prevails and LORTC proves financially feasible, there is substantial evidence that it will be at the expense of West Lake, Devereaux, and the others. There is no evidence that LORTC or La Amistad evaluated the impact of their proposals on other service providers in the area. OTHER REVIEW CRITERIA, INCLUDING QUALIFY OF CARE Both applicants enjoy a reputation for providing good quality mental health services and there is no substantial evidence that this quality will deteriorate if the applications are approved. No competent evidence was presented regarding the failure of either applicant to meet the remaining relevant criteria.
The Issue The issue presented herein is whether or not a CON to construct a 60-bed short-term psychiatric hospital in District XI should be issued to Florida Medical Center (FMC).
Findings Of Fact FMC seeks a CON for a 60-bed free-standing psychiatric facility to be located in the Key Largo area of Monroe County in HRS District XI. FMC intends to provide 6.25 percent of its patient days at no charge to indigent patients. It further intends to provide another 6.25 percent of its patient days to HRS' clients and Baker Act patients at 50 percent of its projected charge, or $200 per day. (FMC Exhibit 2, Table 7). FMC proposes to build this facility at a cost of $6,060,000. Dr. Richard Matthews, Ph.D., has been executive director of the Guidance Clinic of the Upper Keys since 1973 and is a clinical psychologist. He is responsible for the overall administration and supervision of mental health, alcohol, drug abuse and out-patient services provided under contract with HRS. Dr. Matthews was qualified as an expert in clinical psychology and the mental health delivery health system in Monroe County. (FMC Exhibit 13). There are three guidance clinics in Monroe County, one each for the upper, lower and middle Keys. HRS contracts through each of these clinics to provide mental health care for its clients. There are no community mental health centers in Monroe County and the clinics are the sole means of delivering mental health care on behalf of HRS' clients within the county. Currently, the guidance clinic of the upper Keys places its in- patients in Harbor View Hospital in Dade County at a cost of $236 per day. Neither Harbor View nor any other hospital provides free days to any of the guidance clinics for in-patient psychiatric care. (FMC Exhibit 13, P. 9) Jackson Memorial Hospital does not accept indigent or charity psychiatric patients from Monroe County. There have been occasions where patients without resources have been unable to be hospitalized although hospitalization was indicated. The middle Keys has a crisis hospitalization unit with a limited number of beds. Patients needing hospitalization longer than three days must be transferred to Harbor View or some other facility in the District. The 15 beds at Depoo Hospital in Key West are not readily accessible to residents of the upper Keys. Residents needing psychiatric services usually go to hospitals in Dade County. Coral Reef Hospital, the nearest psychiatric facility to Petitioner's proposed facility, has in the past refused to negotiate a discounted rate with the guidance clinic. Dr. Matthews, on one occasion, sent a patient to Coral Reef who was refused treatment. Currently, no psychiatrist practices in Key Largo because there are no psychiatric beds to which a psychiatrist could admit patients. The discounted rate of $200 per day quoted by FMC is some $36 per day less than the guidance clinic currently pays to providers for referrals of its patients for psychiatric care. Additionally, the 6.25 percent of free care that Petitioner proposes is greater than the free care which the guidance clinic currently receives from any facility since no facility presently gives any free care to the clinic. The guidance clinic supports Petitioner's CON application and will contract with Petitioner who provides services for in-patients. Grant Center is a long-term 140-bed psychiatric hospital specializing in the treatment of children and adolescents. It is the nearest facility to Petitioner's proposed facility. Grant Center has agreed to refer adult patients to Petitioner. Grant Center treats 2-3 adults a month who need psychiatric care. (FMC Exhibit 14). There is one hospital providing psychiatric care in Dade County which was surveyed by the Health Care Finance Administration (HCFA) in March, 1988. Currently, a third party insurance carrier no longer utilizes Grant Center because of price. If a facility has prices which carriers consider too expensive, utilization will go down. (FMC Exhibit 14, P. 7). Grant Center currently contracts with HRS to provide its clients care at a rate of approximately $350 per day, a rate one half of Grant Center's normal rate. Jackson Memorial is the only Dade County hospital which will treat an indigent psychiatric patient. Grant Center intends to assist Petitioner with staffing or programmatic needs. It has 80-100 professional staff, most of whom live in close proximity to Key Largo. Robert L. Newman, C.P.A., is the chief financial officer at FMC. He testified, by deposition, as an expert in hospital accounting and finance. Newman analyzed the Hospital Cost Containment Board (HCCB) reports for each hospital in District XI which provides psychiatric care. There is no free standing psychiatric hospital in the District which reports any indigent or uncompensated care. Among area acute care hospitals which have psychiatric units, Miami Jackson rendered 38.89 percent indigent care, Miami Children's rendered 6.5 percent indigent care, and no other facility reported that it rendered more than 1.75 percent indigent care. (FMC see Exhibit 11, disposition exhibit 1). Jackson provides no free care to Monroe County residents and Miami Children's care is limited to treating children while Petitioner is seeking adult beds. Jayne Coraggio testified (by deposition) as an expert in psychiatric staffing and hiring. She is currently Petitioner's director of behavioral sciences. The ideal patient to staff ratio is 4 to 5 patients per day per professional staff member. During the evening shift, the ideal patient ratio per professional staff member is 7 to 8 patients. (FMC Exhibit 12, PP. 6-7). Petitioner's facility is adequately staffed based on the above ratios. FMC is considered overstaffed in the psychiatric unit by some of the other area hospitals since they do not staff as heavily as does Petitioner. Lower staffing ratios can affect quality of care since patients and their families would not receive as much therapy. Family therapy is important because the family needs to know about changes in the patient in order to make corrective adjustments. The family that is required to travel in excess of 45 minutes or more one way is less likely to be involved in family therapy. Islara Souto was the HRS primary reviewer who prepared the state agency action report (SAAR) for Petitioner's CON application. (FMC Exhibit 15). District 11 has subdivided into five subdistricts for psychiatric beds. Florida is deinstitutionalizing patients from its mental hospitals. To the extent that private psychiatric hospitals do not accept nonpaying patients, their existence will not solve the problem of caring for such patients. Souto acknowledged that the local health councils conversion policy discriminates against subdistrict 5 because there are so few acute care beds in the subdistrict. In fact, the conversion policy actually exacerbates the maldistribution of beds in the district. (FMC 15, page 26). The psychiatric facility nearest the proposed site (Coral Reef), had an occupancy of 90.3 percent. Souto utilized a document entitled Florida Primary Health Care Need Indicators, February 1, 1986, and determined that Monroe County has not been designated as a health manpower shortage area, nor a medically underserved area. This information is relied upon by health planners to determine the availability of health manpower in an area. This report refers both to physicians and R.N.'s. The average adult per diem for free-standing hospitals in District 11 range from $430 at Charter to just over $500 at Harbor View. Although districts have established subdistricts for psychiatric beds, no psychiatric bed subdistrict in any district has been promulgated by HRS as a rule. The access standard that is relevant to this proceeding is a 45-minute travel standard contained in Rule 10-5.011(1)(o)5.G. That standard states: G. Access Standard. Short-term inpatient hospital psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90 percent of this service area's population. Here, the standard refers to the service area which is determined to be an area different than a service district. Applying the travel time standard on a service area basis makes the most sense since the subdistrict is established by the local health council and not the applicant. Analyzing this access standard on a sub-district level, 90% of the sub-districts population is not within 45 minutes of any facility anywhere in sub-district V since the sub-district is more than two hours long by ordinary travel and the population is split two-thirds in lower Dade County and one-third in Monroe County, the bulk of which is in Key West. (FMC Exhibit 17). Therefore, a facility located on either end of this sub-district is not readily accessible by the applicable travel standards to citizens at the other end of the sub-district. This access standard must however be measured and considered with the needs for psychiatric services of the kind Petitioner is proposing to provide. Petitioner has not presented any access surveys or assessments of the caliber relied upon by the Department in the past. Petitioner's facility which would be located in the Key Largo area will no doubt provide better geographic accessibility to residents of District XI who live in the Key Largo area. HRS has in the past used a sub-district analysis to determine geographic accessibility for psychiatric beds even though it has not promulgated a rule for sub-districts for psychiatric beds. See, for example, Psychiatric Hospital of Florida vs. Department of Health and Rehabilitative Services and Pasco Psychiatric Center, DOAH Case No. 85-0780. Likewise, the Department has approved the conversion of acute-care beds to psychiatric beds even though it found that there was a surplus of psychiatric beds in the district. (Petitioner's Exhibit 7). The Department has in the past used a geographic access analysis to approve psychiatric beds in District XI and has used the sub- district analysis or a time travel analysis in its review of Cedars, Coral Reef, Depoo (for psychiatric beds) and the Glenbiegh case (for long term substance abuse). The bed need calculations for the January, 1992 planning horizon shows a surplus of 180 short-term in-patient psychiatric beds. (HRS Exhibit 2). The occupancy level for short-term psychiatric beds in the district is below 70%. (HRS Exhibit 2, pages 11-12). Additionally, the occupancy standards of the local and state health plan, of which the department is required to review CON applications, have not been met in this instance. (HRS Exhibit 2, Pages 6-7). Petitioner has not submitted any documentation to HRS regarding special circumstances need. Petitioner's proposal at final hearing for a staff referral agreement with another local hospital was not contained in the CON application filed with HRS. (FMC Exhibit 14, pages 11-12). Although Petitioner has alluded to some unspecified access problem for residents in the Florida Keys, Petitioner has not documented a real access problem and certainly not a demonstration of inaccessibility under the rule access standard. (Florida Administrative Code Rule 10-5.011(1)(o)5.g.)(HRS Exhibit 2, pages 14-15). Although the proposed project would increase availability and access for underserved groups in the district, the percentage of total patient days for "indigents" is not substantial and certainly not to the point to warrant deviation from the usual access criteria. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, IT IS RECOMMENDED THAT: Petitioner's application for a Certificate of Need to build a 60-bed free- standing psychiatric hospital in District XI be DENIED. DONE and ENTERED this 28th day of February, 1989 in Tallahassee, Florida. JAMES E. BRADWELL 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 28th day of January, 1989.
Findings Of Fact Respondent is, and has been at all times material hereto, licensed by the State of Florida as a Respiratory Therapist, non-critical care status, having bean issued license number N000008. On March 30, 1988, Respondent applied to Petitioner for licensure as a Respiratory Therapist, non-critical care status, under a special exemption for certification without examination. Respondent has not passed the licensing examination on any of the three occasions she has taken it. Respondent submitted the required application to the Board of Medicine accompanied by a copy of a graduate equivalency diploma (G.E.D.) #293361 issued in the name of Beverly Burke". On July 21, 1988, the Advisory Council on Regulatory Care approved Respondent's application for licensure as a Respiratory Therapist, non-critical care status. On August 18, 1988, Respondent requested that the Board of Medicine upgrade her license from non-critical care status to critical care status. A critical care status position usually pays a higher salary and requires more skill than a non-critical care status position. Respondent submitted an application, accompanied by G.E.D. #293361 and other supporting documentation. On September 23, 1988, the Florida Department of Education learned that G.E.D. #293361 was issued to Edwin G. Burke, Respondent's husband. Respondent has neither a high School diploma nor a G.E.D. The document Respondent submitted with her application was her husband's G.E.D. which Respondent had falsified to make it appear that she met the statutory criteria for licensure. Respondent has worked as a respiratory therapist since 1982. Since 1982, Respondent has, from time to time, attended Broward Community College on a part-time basis, in an attempt to combine an Associate of Arts degree with a G.E.D. As of the time of the hearing, Respondent had not achieved either degree, but she had resumed work toward her G.E.D. On February 20, 1989, the Board of Medicine denied Respondent's application for licensure as a Respiratory Therapist, critical care status. Thereafter, this Administrative Complaint, seeking to discipline the licensure as a Respiratory Therapist, non-critical care status, was filed. Respondent timely filed a request for a formal administrative hearing. There was no evidence that any complaints had been previously lodged against Respondent or that she had been previously disciplined by Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Professional Regulation, Board of Medicine, which finds Respondent guilty of having violated Section 468.365(1)(a), Florida Statutes, which further finds that Respondent does not meet the statutory criteria for registration as a Respiratory Therapist, and which revokes the Respiratory Therapist registration of Beverly Burke. DONE AND ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer 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 November, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3672 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact :n paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 4 of the Recommended Order, except that the date of the approval by the Advisory Council on Respiratory Care was July 21, 1988, not July 27, 1988. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material pari~ by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Susan Loehn, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Alan S. Glueck, Esquire 2331 North State Road #7 Suite 106 Fort Lauderdale, Florida 33313 Beverly Burke 6940 N.W. 6th Court Plantation, Florida 33317 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
