93-000963CON
Wuesthoff Memorial Hospital, Inc. vs.
Agency For Health Care Administration
Status: Closed
Recommended Order on Wednesday, November 10, 1993.
Recommended Order on Wednesday, November 10, 1993.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8WUESTHOFF MEMORIAL HOSPITAL, INC., )
13d/b/a WUESTHOFF MEMORIAL HOSPITAL, )
18)
19Petitioner, )
21)
22vs. ) CASE NO. 93-0963
27)
28AGENCY FOR HEALTH CARE )
33ADMINISTRATION, )
35)
36Respondent. )
38___________________________________)
39RECOMMENDED ORDER
41This case was heard by Eleanor M. Hunter the designated Hearing Officer of
54the Division of Administrative Hearings, on May 26-28, 1993, in Tallahassee,
65Florida.
66APPEARANCES
67For Petitioner: Kenneth F. Hoffman, Attorney
73Patricia A. Renovitch, Attorney
77OERTEL, HOFFMAN, FERNANDEZ
80& COLE, P.A.
83Post Office Box 6507
87Tallahassee, Florida 32302
90For Respondent: Lesley Mendelson, Senior Attorney
96Agency For Health Care Administration
101The Atrium Building, Suite 301
106325 John Knox Road
110Tallahassee, Florida 32303
113STATEMENT OF THE ISSUES
117Whether the application of Wuesthoff Memorial Hospital, Inc. d/b/a
126Wuesthoff Memorial Hospital ("Wuesthoff"), for the conversion of ten acute care
139beds to ten Level II neonatal intensive care beds meets, on balance, the
152applicable statutory and rule criteria for approval.
159PRELIMINARY STATEMENT
161On August 7, 1992, the Agency for Health Care Administration published a
173fixed need pool for zero numeric need for additional Level II NICU beds in
187District 7. Wuesthoff filed an application for a Certificate of Need to convert
200ten acute care beds to ten Level II NICU beds, which was preliminarily denied by
215the Agency. This proceeding was initiated to challenge that preliminary
225decision.
226At the hearing, Wuesthoff presented the testimony of Joseph Williams, M.D.
237(expert in obstetrics and gynecology); Linda L. Miedema, R.N. (expert in nursing
249care, maternal-child services, nurse staffing and neonatal intensive care
258equipment); Myra Sue Cody, R.N. (expert in community health); Javier Diaz, M.D.
270(expert in pediatrics and neonatology); Margo Kelly, C.P.A. (expert in health
281care planning, health care finance and accounting); Ronald Eason, M.D. (expert
292in obstetrics and gynecology); Joan M. Braun; and the deposition testimony of
304Stephen J. Carlan, M.D. Wuesthoff's exhibits 1-7 were received in evidence.
315Ruling was reserved on the admissibility of Exhibit 8. AHCA presented the
327testimony of Helen O'Laughlin (expert in health planning), and exhibits 1-7,
338which were received in evidence.
343The transcript of the proceedings was filed with the Division of
354Administrative Hearings on June 12, 1993. Proposed findings of fact and
365conclusions of law were filed on July 16, 1993.
374FINDINGS OF FACT
3771. Wuesthoff Memorial Hospital, Inc., d/b/a Wuesthoff Memorial Hospital
386("Wuesthoff") is a 303 bed acute care hospital in Rockledge, Florida, in Brevard
401County, District 7.
4042. The Agency For Health Care Administration ("AHCA") is the state agency
418designated by statute to issue, revoke, or deny Certificates of Need ("CON") for
433health care beds and services.
4383. Wuesthoff is the applicant for a CON to convert ten acute care beds to
453a ten bed Level II neonatal intensive care unit ("NICU"), for total project
468costs of $1,239,330.
4734. By prehearing stipulation, the parties agreed to the following facts:
484(1) the fixed need pool for Level II NICU
493beds for District 7 shows zero net numeric
501bed need;
503(2) there are 41 licensed and 18 approved
511Level II NICU beds in District 7, 10 in
520Brevard County, 49 in Orange County, none in
528Osceola and Seminole Counties;
532(3) the letter of intent and CON application
540were filed timely and properly deemed
546complete;
547(4) Wuesthoff does not have any approved
554Level II NICU beds;
558(5) the District 7 Health Plan, including
565the 1991 CON Allocation Factors, are
571applicable to the review of this application;
578and
579(6) the 1989 State Health Plan is also
587applicable to the review of this application.
5945. With regard to the statutory criteria, the parties also agreed that:
606(1) Wuesthoff's historic record of providing
612high quality care is not in dispute;
619(2) Wuesthoff does not maintain that its
626NICU service will be intended as a research
634and education facility;
637(3) the availability of resources, including
643management personnel and funds for capital
649and operating expenditures, for project
654accomplishment and operation, is not in
660dispute;
661(4) the immediate and long term financial
668feasibility of the proposal as demonstrated
674in Wuesthoff's application are not in
680dispute, assuming Wuesthoff proves the
685accuracy of utilization assumptions;
689(5) Wuesthoff does not provide a substantial
696portion of services or resources to
702individuals not residing within the district
708or in adjacent districts;
712(6) Wuesthoff's past levels of service to
719Medicaid and medically indigent patients are
725not in dispute;
728(7) the special needs and circumstances of
735health maintenance organizations are not
740applicable to this application; and
745(8) the costs and methods of proposed
752construction are not in dispute.
7576. At issue in this case are the statutory review criteria in Subsections
770408.035(1)(a), (b), (d), (e), (f), portions of (h) and (i), (j) and (l), Florida
784Statutes (1992 supp.). Subsections 408.035(2)(a), (b), (c) and (d) are also in
796dispute.
797NEED
7987. Subsection 408.035(1)(a) requires consideration of need in relation to
808state and local health plans. The 1989 State Health Plan and CON allocation
821factors in the 1991 District 7 Health Plan are applicable to the review of
835Wuesthoff's CON application.
8388. Wuesthoff is not located in Orange County and, therefore, does not meet
851the District 7 factor favoring Orange County providers who will serve Medicaid
863newborns.
8649. The second factor favors applicants proposing to provide at least 45
876percent of all patient days to Medicaid patients and 6 percent to indigent
889patients. Wuesthoff projected that it would achieve 50.5 percent Medicaid
899patient days and 4.5 percent to uninsured patients. Despite these projections,
910Wuesthoff failed to make a commitment to have its CON conditioned on the
923provision of specified percentages Medicaid and indigent patient days. On this
934basis, AHCA concluded that Wuesthoff fails to meet the factor. Wuesthoff's
945position is accepted. Its projections justify favorable consideration under
954this factor, its historic Medicaid service supports its projections, and AHCA
965can condition the CON if appropriate.
97110. The third factor requires applicants to identify specific services,
981educational programs, and/or interventions which will provide for an unmet need.
992This factor is also related to Subsection 408.035(1)(b) - the availability and
1004accessibility of existing and approved Level II NICU beds in the district;
1016(2)(a) - the availability of less costly more efficient facilities; and (2)(c)
1028and (d) - availability and efficiency of existing inpatients facilities, and
1039problems in obtaining existing inpatient care in the absence of the proposed
1051services.
105211. There is no dispute that there is zero numeric need for additional
1065Level II NICU beds in District 7. Level II beds exist at Holmes Regional
1079Medical Center ("Holmes") in Melbourne Brevard County, and in Orange County at
1093Winter Park Memorial Hospital ("Winter Park"), Orlando Regional Medical Center
1105("ORMC") and Florida Hospital.
111112. Holmes, the only Level II NICU in Brevard County, is, however, not
1124available because its 10 Level II NICU beds have had occupancy levels not less
1138than 122 percent and up to 147 percent during the past three years. Holmes
1152provided 36.8 percent of the NICU services in District 7, with ten of the 59
1167licensed or approved beds, or 17 percent of the District beds. There was also
1181evidence that Holmes' physicians do not accept transfers of indigent or Medicaid
1193obstetrics patients from the service area of Wuesthoff and from northern Brevard
1205County.
120613. In 1992, district wide occupancy in Level II NICU beds was over 95
1220percent. All of the other providers, except Holmes, are located in Orange
1232County. Winter Park's 1992 occupancy rate was only 34 percent in its 5 bed
1246unit. Florida Hospital, with a 1992 rate of 87.8 percent in 14 beds, has been
1261approved for 8 additional beds. ORMC, with a 1992 occupancy rate averaging 90.2
1274percent, has approval for an additional 10 beds.
128214. Available beds at Winter Park or Florida Hospital have not
1293historically alleviated overcrowding at Holmes. At hearing, AHCA's expert
1302health planner testified that Holmes reached 122 percent occupancy when Winter
1313Park was at 30 percent and Florida Hospital was 58.2 percent.
132415. Wuesthoff has demonstrated that Winter Park, Florida Hospital, and
1334ORMC are geographically and economically inaccessible to Medicaid and indigent
1344patients in Wuesthoff's service area.
134916. Expert testimony linked indigency to a greater need for NICU care.
1361Wuesthoff demonstrated that Medicaid and indigent obstetrics patients in its
1371service area cannot and do not use the facilities in Orange County adequately
1384and appropriately for prenatal care or delivery due to transportation and
1395economic difficulties. Indigent patients with high risk pregnancies served by
1405the Brevard County Public Health Unit are referred to ORMC. Experts estimated
1417that fewer than 50 percent of those end up delivering at ORMC.
142917. For Medicaid patients who comply with referrals for prenatal care,
1440Medicaid is charged $119 per patient per non-emergency, pre-scheduled trip to
1451ORMC. For infants born in Brevard County in need of Level II care, emergency
1465transportation to ORMC costs $700 by ambulance or over $2000 by helicopter.
147718. The number of Public Health medicaid or indigent obstetrics patients
1488referred to ORMC from the Wuesthoff area was reasonably estimated to be 250
1501patients a year. With 50 percent of the babies needing Level II care, the
1515estimate of 125 neonatal referrals is reasonable.
152219. The statutory criterion of need in relation to the State Health Plan
1535also requires consideration of preferences for applicants (1) converting from
1545acute care to NICU beds; (2) proposing to serve Children's Medical Services
1557("CMS"), Medicaid and charity patients; and (3) proposing to serve substance
1570abusing pregnant and postpartum women. AHCA agreed that the Wuesthoff CON
1581application meets all of the applicable State Health Plan preferences.
1591Wuesthoff is proposing, as also required by AHCA rule, to convert acute care
1604beds, currently utilized at 56.33 percent occupancy. In 1992, Medicaid
1614obstetric patients days accounted for 50.5 percent of the total. A CMS clinic
1627is located on the Wuesthoff campus and receives services from its staff
1639pediatricians. See also, 59C-1.042(3)(j) and (k), F.A.C.
164620. Wuesthoff demonstrated the absence of any outpatient alternatives for
1656Level II NICU beds, as required in Subsection 408.035(1)(d), Florida Statutes,
1667(1992 supp.).
166921. Wuesthoff fails to comply with the criteria in Subsections
1679408.035(1)(e), (f), (g), (j) and (k), Florida Statutes, (1992 supp.). It
1690does not plan to jointly operate a NICU with other providers, although it is
1704under consideration as a satellite regional perinatal intensive care center
1714("RPICC"). The proposed services are available in adjoining areas, including
1726Volusia County to the north, where Level II NICU occupancy was 85 percent in
17401992. Wuesthoff does not intend to be a research or educational facility, nor
1753will it serve substantial numbers of individuals residing outside its service
1764district. Wuesthoff is not a health maintenance organization hospital.
1773UTILIZATION AND OPERATIONS
177622. Pursuant to Subsections 408.035(1)(h), (i) and (l), and (2)(a),
1786Wuesthoff must be able to staff and fund a Level II NICU that is financially
1801feasible and does not impact negatively health services quality or costs.
181223. AHCA presented no evidence at hearing to contradict that presented by
1824Wuesthoff to show that it has the staff and funds for its proposed project.
1838Wuesthoff also has shown that it will profit from the conversion of
1850underutilized acute care beds to Level II NICU beds.
185924. Rule 59C-1.042, Florida Administrative Code, includes the methodology
1868for calculating numeric need, among other requirements for approval of Level II
1880NICU programs. Numeric need, under the rule, is zero. In fact, the
1892calculations show that 15 more Level II beds than needed have been approved in
1906District 7.
190825. As required by the rule, average occupancy rates in District 7
1920exceeded 80 percent in the 12 months ending 6 months prior to the quarter in
1935which numeric need was calculated.
194026. The rule also favors RPICC's. Wuesthoff is not a RPICC, although it
1953is under consideration as a satellite of the ORMC RPICC.
196327. Wuesthoff is not an existing provider of Level II NICU services, and
1976therefore, does not qualify for additional beds under the rule.
198628. As required by the NICU rule, Wuesthoff's application seeks the
1997establishment of the minimum size Level II unit of ten beds. The applicant also
2011has on staff a neonatologist, a head nurse with experience and training in
2024neonatal intensive care, registered nurses, respiratory therapists, and social
2033services personnel with the required training. Wuesthoff is capable of
2043performing the blood gas analyses, clinical laboratory support services, and
2053intervention screening. If approved, Wuesthoff would also be eligible to
2063participate in a county grant-funded neonatal developmental disabilities
2071program.
207229. Wuesthoff either has installed or has made appropriate plans to obtain
2084the equipment and to make the renovations required by Subsections (9)(b) and (c)
2097of the Rule.
210030. Wuesthoff is capable of meeting the data reporting requirements of
2111Subsection 13 of the Rule.
211631. The two hour travel time for geographic access to Level II NICU
2129services is met by the existing District 7 providers, and Wuesthoff's proposal
2141is not needed to meet that standard.
2148MINIMUM BIRTH VOLUME
215132. Rule 59C-1.042(6), provides in relevant part, as follows:
2160Hospitals applying for Level II NICU services
2167shall not normally be approved unless the
2174hospital had a minimum service volume of
21811,000 live births for the most recent 12-
2190month period ending 6 months prior to the
2198beginning date of the quarter of the
2205publication of the fixed need pool.
221133. Wuesthoff does not meet the 1000 minimum number of births. In 1991,
2224there were 963 live births at Wuesthoff. From 1988-1990, live birth at
2236Wuesthoff exceeded 1000. In 1992, Wuesthoff had 998 live births. AHCA asserts
2248that the quality of care that volume requirements assure will be adversely
2260affected by the approval of Wuesthoff's application. Wuesthoff has presented
2270competent, substantial evidence that this concern is not well founded, for the
2282following reasons: A privately-owned Birthing Center located on Merritt Island
2292in Brevard County, is staffed by a doctor who owns the facility and has hospital
2307privileges only at Wuesthoff. At the Birthing Center, there were 124 deliveries
2319in 1990, 156 in 1991, and 178 in 1992. The Birthing Center, Jess Parrish
2333Memorial Hospital in Titusville, and Cape Canaveral Hospital, all are Brevard
2344County obstetrics facilities without Level II NICU services. In fact, births at
2356Cape Canaveral exceeded 1000 in 1992. The live births in these three Brevard
2369County facilities, at Wuesthoff, and the overcrowding at the Level II NICU at
2382Holmes, provide a reasonable basis to conclude that Wuesthoff can exceed the
2394minimum birth volume necessary to meet the quality of care objectives of the
2407rule.
240834. As required by Subsections (11) and (12) of the NICU rule, Wuesthoff
2421has 24 hour emergency transportation in cooperation with Jess Parrish Memorial
2432Hospital and Cape Canaveral Hospital. Wuesthoff has a transfer agreement with
2443ORMC, which has all levels of NICU care.
245135. AHCA also questioned Wuesthoff's utilization assumption and
2459projections. With combined live births at Brevard facilities without Level II
2470NICUs exceeding 3,000 a year, with two of the facilities jointly operating an
2484emergency transportation service with Wuesthoff, and the third staffed by a
2495obstetrician with privileges only at Wuesthoff, Wuesthoff's assumptions that the
2505majority of neonates born at these facilities needing Level II NICU care will be
2519transferred to Wuesthoff are reasonable.
252436. As agreed in the prehearing stipulation, because utilization
2533projections are found reasonable, Wuesthoff's proposal is financially feasible.
2542CONCLUSIONS OF LAW
254537. The Division of Administrative Hearings has jurisdiction over the
2555subject matter of and parties to this proceeding, pursuant to Subsetions
2566408.039(5) and 120.57(1), Florida Statutes.
257138. Wuesthoff, as the applicant, has the burden of proving its entitlement
2583to a CON based on a balanced consideration of statutory and rule criteria. Boca
2597Raton Artificial Kidney Center v. Department of Health and Rehabilitative
2607Services, 475 So.2d 260 (Fla. 1st DCA 1985); Balsom v. Department of Health and
2621Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986).
263039. Wuesthoff meets all state and local health plan criteria, except the
2642local criterion for Orange County Medicaid providers.
264940. AHCA emphasized the tertiary nature of Level II NICU services, the
2661absence of numeric need and Wuesthoff's failure to meet minimum birth volumes as
2674reasons to deny the CON application.
268041. The need for Wuesthoff's services was demonstrated by the lack of
2692space at Holmes and the geographic inaccessibility of other District 7 Level II
2705providers for Medicaid and indigent patients.
271142. There is competent, substantial evidence that Wuesthoff's failure to
2721meet minimum birth volumes in 1991 in its obstetrics unit will not adversely
2734affect quality of care, utilization projections, or the financial feasibility of
2745Wuesthoff's proposal.
274743. On balance, Wuesthoff has demonstrated that its CON application meets
2758the criteria of the statutes and rules provided its CON is conditioned on
2771providing 51 percent of total Level II NICU patient days to Medicaid or indigent
2785patients.
2786RECOMMENDATION
2787Based on the foregoing Findings of Fact and Conclusions of Law, it is
2800RECOMMENDED that a Final Order be issued approving Certificate of Need 7081
2812to Wuesthoff Memorial Hospital to convert ten acute care beds to a ten bed Level
2827II neonatal intensive care unit condi tioned upon Wuesthoff's providing not less
2839than a combined total of 51 percent Medicaid and indigent patient days in the
2853unit.
2854DONE AND ENTERED this 10th day of November, 1993, in Tallahassee, Leon
2866County, Florida.
2868___________________________
2869ELEANOR M. HUNTER
2872Hearing Officer
2874Division of Administrative Hearings
2878The DeSoto Building
28811230 Apalachee Parkway
2884Tallahassee, Florida 32399-1550
2887(904) 488-9675
2889Filed with the Clerk of the
2895Division of Administrative
2898Hearings this 10th day of
2903November, 1993.
2905APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0963
2912To comply with the requirements of Section 120.59(2), Fla. Stat. (1991),
2923the following rulings are made on the parties' proposed findings of fact:
2935Petitioner's Proposed Findings of Fact.
29401. Accepted in Finding of Fact 1.
29472. Subordinate to Finding of Fact 33.
29543. Accepted in Finding of Fact 4.
29614. Accepted in Finding of Fact 4.
29685. Accepted in Findings of Fact 11, 12, and 13.
29786. Subordinate to Finding of Fact 16.
29857. Subordinate to Finding of Fact 16.
29928. Subordinate to Finding of Fact 16.
29999. Subordinate to Findings of Fact 16 and 17.
300810. Subordinate to Findings of Fact 15 and 17.
301711. Subordinate to Findings of Fact 12 and 13.
302612. Accepted in Finding of Facts 15 and 18.
303513. Accepted in Finding of Fact 15.
304214. Accepted in Finding of Fact 16.
304915. Subordinate to Finding of Fact 17.
305616. Accepted in Finding of Fact 17.
306317. Subordinate to Finding of Fact 16.
307018. Accepted in Finding of Fact 17.
307719. Accepted in Finding of Fact 15.
308420. Accepted in Finding of Fact 17.
309121. Subordinate to Finding of Fact 16.
309822. Subordinate to Finding of Fact 16.
310523. Subordinate to Finding of Fact 16.
311224. Subordinate to Finding of Fact 16.
311925. Subordinate to Finding of Fact 16.
312626. Subordinate to Finding of Fact 16.
313327. Subordinate to Finding of Fact 16.
314028. Accepted in Finding of Fact 16.
314729. Accepted in Finding of Fact 12.
315430. Subordinate to Finding of Fact 16.
316131. Accepted in Finding of Fact 16.
316832. Accepted in Finding of Fact 15.
317533. Accepted in Finding of Fact 15.
318234. Accepted in Conclusions of Law 40.
318935. Accepted in Finding of Fact 15.
319636. Subordinate to Finding of Fact 16.
320337. Accepted in Finding of Fact 16.
321038. Subordinate to Finding of Fact 16.
321739. Subordinate to Finding of Fact 16.
322440. Subordinate to Finding of Fact 16.
323141. Subordinate to Finding of Fact 15.
323842. Subordinate to Finding of Fact 16.
324543. Accepted in Finding of Fact 12.
325244. Subordinate to Finding of Fact 16.
325945. Accepted in Finding of Fact 21.
326646. Accepted in Finding of Fact 16 and 17.
327547. Accepted in Finding of Fact 16.
328248. Subordinate to Finding of Fact 12.
328949. Accepted in Finding of Fact 28.
329650. Subordinate to Findings of Fact 16 and 17.
330551. Subordinate to Findings of Fact 16 and 17.
331452. Subordinate to Findings of Fact 16 and 17.
332353. Subordinate to Findings of Fact 16 and 17.
333254. Accepted in Findings of Fact 21 and 26.
334155. Accepted in Findings of Fact 21 and 26.
335056. Subordinate to Findings of Fact 21 and 26.
335957. Subordinate to Findings of Fact 21 and 26.
336858. Subordinate to Findings of Fact 21 and 26.
337759. Subordinate to Findings of Fact 21 and 26.
338660. Subordinate to Findings of Fact 21 and 26.
339561. Subordinate to Findings of Fact 21 and 26.
340462. Subordinate to Findings of Fact 21 and 26.
341363. Subordinate to Findings of Fact 21 and 26.
342264. Subordinate to Findings of Fact 21 and 26.
343165. Subordinate to Findings of Fact 21 and 26.
344066. Subordinate to Findings of Fact 21 and 26.
344967. Accepted in Finding of Fact 17.
345668. Subordinate to Finding of Fact 16.
346369. Subordinate to Finding of Fact 17.
347070. Subordinate to Finding of Fact 18.
347771. Accepted in Finding of Fact 35.
348472. Subordinate to Findings of Fact 35.
349173. Subordinate to Finding of Fact 12 and 35.
350074. Accepted in Finding of Fact 19.
350775. Accepted in Finding of Fact 19.
351476. Accepted in Finding of Fact 9.
352177. Accepted in Finding of Fact 9.
352878. Accepted in Finding of Fact 78.
353579. Accepted in Conclusions of Law 39.
354280. Accepted in Finding of Fact 12-15.
354981. Accepted in Finding of Fact 12.
355682. Accepted in Finding of Fact 12.
356383. Accepted in Finding of Fact 12-13.
357084. Accepted in Finding of Fact 12.
357785. Accepted in relevant part in Finding of Fact 32.
358786. Accepted in relevant part in Finding of Fact 32.
359787. Accepted in relevant part in Finding of Fact 32.
360788. Accepted in relevant part in Finding of Fact 32.
361789. Accepted in relevant part in Finding of Fact 32.
362790. Accepted in Finding of Fact 20.
363491. Rejected Conclusion in Findings of Fact 21.
364292. Rejected Conclusion in Findings of Fact 21.
365093. Rejected Conclusion in Findings of Fact 21.
365894. Accepted in Finding of Fact 23.
366595. Accepted in Finding of Fact 23.
367296. Accepted in Finding of Fact 17.
367997. Accepted in Finding of Fact 33.
368698. Accepted in Finding of Fact 21.
369399. Accepted in Finding of Fact 21.
3700100. Accepted in Finding of Fact 23.
3707101. Accepted in Finding of Fact 5.
3714102. Accepted in Finding of Fact 9.
3721103. Accepted in Finding of Fact 9.
3728104. Accepted in Finding of Fact 9.
3735105. Accepted in Findings of Fact 10-17.
3742106. Accepted in Finding of Fact 12.
3749107. Accepted in Finding of Fact 15.
3756108. Accepted in Finding of Fact 14.
3763109. Accepted in Finding of Fact 12.
3770110. Accepted in Finding of Fact 15.
3777111. Accepted in Findings of Fact 10-17.
3784112. Accepted in Findings of Fact 10-17.
3791113. Accepted in Finding of Fact 24.
3798114. Accepted in Finding of Fact 24.
3805115. Accepted in Finding of Fact 25.
3812116. Accepted in Conclusions of Law 42.
3819117. Accepted in Finding of Fact 19.
3826118. Accepted in Finding of Fact 19.
3833119. Accepted in Finding of Fact 28.
3840120. Accepted in Finding of Fact 28.
3847121. Accepted in Finding of Fact 33.
3854122. Accepted in Finding of Fact 31.
3861123. Accepted in Finding of Fact 28.
3868124. Accepted in Finding of Fact 29.
3875125. Accepted in Finding of Fact 34.
3882126. Accepted in Finding of Fact 34.
3889127. Accepted in Finding of Fact 30.
3896128. Accepted in general in Conclusions of Law 42.
3905129. Accepted in Finding of Fact 11.
3912130. Accepted in Findings of Fact 13 and 24.
3921131. Accepted in Finding of Fact 14.
3928Respondent's Proposed Findings of Fact.
39331. Accepted in Findings of Fact 1 and 4.
39422. Accepted in Finding of Fact 3.
39493. Accepted in Finding of Fact 4.
39564. Accepted in Finding of Fact 4.
39635. Accepted in Finding of Fact 8.
39706. Rejected in Findings of Fact 9.
39777. Rejected in Findings of Fact 10.
39848. Accepted in Finding of Fact 19.
39919. Accepted in Finding of Fact 19.
399810. Accepted in Conclusions of Law 40.
400511. Rejected in Conclusions of Law 41.
401212. Accepted in Finding of Fact 4.
401913. Accepted in Finding of Fact 4.
402614. Accepted in Finding of Fact 24.
403315. Accepted in Finding of Fact 13.
404016. Accepted in Finding of Fact 25.
404717. Accepted in Finding of Fact 13.
405418. Accepted in Finding of Fact 4.
406119. Accepted in Findings of Fact 21 and 26.
407020. Subordinate to Finding of Fact 21.
407721. Subordinate to Finding of Fact 21.
408422. Subordinate to Finding of Fact 21.
409123. Subordinate to Finding of Fact 21.
409824. Subordinate to Finding of Fact 21.
410525. Subordinate to Finding of Fact 21.
411226. Accepted in Finding of Fact 31.
411927. Accepted in Findings of Fact 16 and 17.
412828. Subordinate to Finding of Fact 16.
413529. Accepted in Findings of Fact 15-17.
414230. Accepted in Finding of Fact 17.
414931. Accepted in Finding of Fact 17.
415632. Accepted in Finding of Fact 16.
416333. Subordinate to Finding of Fact 16.
417034. Subordinate to Finding of Fact 16.
417735. Rejected in Findings of Fact 12.
418436. Accepted in Finding of Fact 35.
419137. Accepted in Finding of Fact 12.
419838. Rejected first sentence in Finding of Fact 35.
420739. Accepted in Finding of Fact 35.
421440. Accepted in Finding of Fact 5.
422141. Accepted in Finding of Fact 28.
422842. Accepted in Finding of Fact 33.
423543. Accepted in Finding of Fact 33.
424244. Accepted in Finding of Fact 28.
424945. Accepted in Finding of Fact 34.
425646. Accepted in Finding of Fact 34.
426347. Accepted in Finding of Fact 35.
427048. Accepted in Finding of Fact 5.
427749. Accepted in Finding of Fact 20.
428450. Accepted in Finding of Fact 21.
429151. Accepted in Finding of Fact 21.
429852. Accepted in Finding of Fact 21.
430553. Accepted in Findings of Fact 5 and 22.
431454. Accepted in Findings of Fact 5 and 22.
432355. Accepted in Finding of Fact 21.
433056. Accepted in Finding of Fact 23.
433757. Accepted in Findings of Fact 5 and 36.
434658. Accepted in Finding of Fact 35.
435359. Subordinate to Finding of Fact 35.
436060. Accepted in Conclusions of Law 40.
436761. Subordinate to Finding of Fact 35.
437462. Rejected in Findings of Fact 35.
438163. Rejected in Findings of Fact 36.
438864. Accepted in Finding of Fact 21.
439565. Accepted in Finding of Fact 21.
440266. Rejected in Findings of Fact 35.
440967. Accepted in Finding of Fact 5.
441668. Accepted in Finding of Fact 5.
442369. Accepted in Finding of Fact 9.
443070. Rejected in Findings of Fact 10-17.
443771. Rejected first sentence in Findings of Fact 10-17.
444672. Rejected in Findings of Fact 10-17.
4453COPIES FURNISHED:
4455Kenneth F. Hoffman, Attorney
4459Patricia A. Renovitch, Attorney
4463OERTEL, HOFFMAN, FERNANDEZ
4466& COLE, P.A.
4469Post Office Box 6507
4473Tallahassee, Florida 32302
4476Lesley Mendelson, Senior Attorney
4480Agency For Health Care Administration
4485The Atrium Building, Suite 301
4490325 John Knox Road
4494Tallahassee, Florida 32303
4497Sam Power, Agency Clerk
4501Agency For Health Care Administration
4506The Atrium Building, Suite 301
4511325 John Knox Road
4515Tallahassee, Florida 32303
4518NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4524All parties have the right to submit written exceptions to this recommended
4536order. All agencies allow each party at least ten days in which to submit
4550written exceptions. Some agencies allow a larger period within which to submit
4562written exceptions. You should contact the agency that will issue the final
4574order in this case concerning agency rules on the deadline for filing exceptions
4587to this recommended order. Any exceptions to this recommended order should be
4599filed with the agency that will issue the final order in this case.
4612=================================================================
4613AGENCY FINAL ORDER
4616=================================================================
4617STATE OF FLORIDA
4620AGENCY FOR HEALTH CARE ADMINISTRATION
4625WUESTHOFF MEMORIAL HOSPITAL,
4628INC. d/b/a WUESTHOFF
4631MEMORIAL HOSPITAL,
4633Petitioner, CASE NO.: 93-0963
4637RENDITION NO.: AHCA-94-14-S-CON
4640vs.
4641STATE OF FLORIDA, AGENCY FOR
4646HEALTH CARE ADMINISTRATION,
4649Respondent.
4650______________________________/
4651FINAL ORDER
4653The parties reached a Settlement Agreement resolving all disputed issues.
4663Upon consideration of the foregoing, the Stipulation and Settlement
4672Agreement of December 8, 1993, is approved and the agency's file is CLOSED. CON
46867081 is approved pursuant to the terms of the Stipulation and Settlement
4698Agreement.
4699DONE and ORDERED this 7th day of February, 1994, in Tallahassee, Florida.
4711_____________________________________
4712Douglas M. Cook, Director
4716Agency for Health Care Administration
4721A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL
4736REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH
4751THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED
4766BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE
4780AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS
4791SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE
4803OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
4819Copies furnished to:
4822Lesley Mendelson, Esquire
4825Senior Attorney, Agency for
4829Health Care Administration
4832325 John Knox Road
4836Atrium Building, Suite 301
4840Tallahassee, Florida 32303-4131
4843Kenneth F. Hoffman, Esquire
4847OERTEL, HOFFMAN, FERNANDEZ
4850& COLE, P. A.
4854Post Office Box 6507
4858Tallahassee, Florida 32314-6507
4861Elizabeth Dudek (AHCA/CON)
4864Alberta Granger (AHCA/CON)
4867Elfie Stamm (AHCA/CON) )
4871DOAH
4872CERTIFICATE OF SERVICE
4875I HEREBY CERTIFY that a true and correct copy of the foregoing has been
4889furnished to the above named people by U.S. Mail this 8th day of February, 1994.
4904___________________________________
4905R. S. Power, Agency Clerk
4910State of Florida, Agency for
4915Health Care Administration
4918325 John Knox Road
4922The Atrium Building, Suite 301
4927Tallahassee, Florida 32303
4930(904) 922-3808
4932power/12-30-93
4933Attachment
4934STATE OF FLORIDA
4937AGENCY FOR HEALTH CARE ADMINISTRATION
4942WUESTHOFF MEMORIAL HOSPITAL, INC.
4946d/b/a WUESTHOFF MEMORIAL HOSPITAL,
4950Petitioner,
4951vs. CASE NO. 93-0963
4955STATE OF FLORIDA AGENCY FOR HEALTH
4961CARE ADMINISTRATION,
4963Respondent.
4964_____________________________________/
4965STIPULATION AND SETTLEMENT AGREEMENT
4969Petitioner, Wuesthoff Memorial Hospital, Inc. d/b/a Wuesthoff Memorial
4977Hospital (Wuesthoff), and Respondent, State of Florida Agency for Health Care
4988Administration (Agency), by and through undersigned counsel, hereby stipulate
4997and agree as follows:
50011. In consideration for the granting of certificate of need #7081 applied
5013for by Wuesthoff, and in light of the Hearing Officer's Recommended Order in
5026this case, Petitioner, Wuesthoff, agrees to accept the Hearing Officer's
5036recommended condition on the certificate of need to the effect that Wuesthoff
5048will provide not less than a combined total of 51 per cent Medicaid and indigent
5063patient days in the Level II NICU unit. In addition, upon the issuance of CON
5078#7081 Wuesthoff will dismiss its Petition in this case.
50872. In consideration for acceptance of the above-stated condition by the
5098applicant, the Respondent, Agency, stipulates and agrees to enter a Final Order
5110granting certificate of need #7081, to include conversion of ten acute care beds
5123to a ten-bed Level II neonatal intensive care unit conditioned as set forth in
5137paragraph 1, above.
51403. Each party agrees to pay its own costs.
51494. The undersigned agree to sign this Stipulation and Settlement Agreement
5160on behalf of their clients.
5165WHEREFORE, the parties stipulate and agree that certificate of need #7081
5176shall be issued as requested by the applicant, with the additional condition as
5189set forth in paragraph 1, above, and upon issuance of CON #7081 by the Agency,
5204Wuesthoff will dismiss its Petition in this case.
5212DATED this 8th day of December, 1993.
5219_____________________________ __________________________________
5221Lesley Mendelson Kenneth F. Hoffman
5226Agency for Health Care Florida Bar Number: 127706
5234Administration Oertel, Hoffman, Fernandez
5238Suite 301, The Atrium Building & Cole, P.A.
5246325 John Knox Road Post Office Box 6507
5254Tallahassee, Florida 32303 Tallahassee, Florida 32314
5260904/921-0096 904/877-0099
5262Attorneys for Respondent Attorneys for Petitioner
5268KFH/Westhoff/663-48.set/kmp
- Date
- Proceedings
- Date: 02/09/1994
- Proceedings: Final Order filed.
- PDF:
- Date: 11/10/1993
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held May 26-28, 1993.
- Date: 07/16/1993
- Proceedings: AHCA'S Proposed Recommended Order filed.
- Date: 07/16/1993
- Proceedings: (Petitioner's) Proposed Recommended Order filed.
- Date: 07/16/1993
- Proceedings: Letter to EMH from Lesley Mendelson (re: parties being granted a 1 day extension) filed.
- Date: 06/30/1993
- Proceedings: Letter to EMH from Lesley Mendelson (re: deposition of Stephen J. Carlan) filed.
- Date: 06/28/1993
- Proceedings: Letter to EMH from Kenneth F. Hoffman (re: Dr. Carlan`s deposition be accepted as Petitioner`s Exhibit-9) filed.
- Date: 06/21/1993
- Proceedings: Letter to EMH from Kenneth F. Hoffman (re: Deposition of Stephen J. Carlan) filed.
- Date: 06/14/1993
- Proceedings: Telephonic Deposition of Stephen J. Carlan (transcript) filed.
- Date: 06/11/1993
- Proceedings: Transcript (3 vols) filed.
- Date: 06/03/1993
- Proceedings: (Petitioner) Notice of Taking Telephonic Deposition filed.
- Date: 05/19/1993
- Proceedings: (joint) Prehearing Stipulation filed.
- Date: 05/19/1993
- Proceedings: (Petitioner) Notice of Taking Depositions for Use at Trial filed.
- Date: 03/05/1993
- Proceedings: Amended Prehearing Order sent out.
- Date: 03/05/1993
- Proceedings: Notice of Hearing sent out. (hearing set for May 26-28, 1993; 10:00am; Talla)
- Date: 03/03/1993
- Proceedings: (joint) Response to Prehearing Order filed.
- Date: 02/26/1993
- Proceedings: Prehearing Order sent out.
- Date: 02/25/1993
- Proceedings: Notification card sent out.
- Date: 02/23/1993
- Proceedings: Notice; Request for Administrative Hearing filed.
Case Information
- Judge:
- ELEANOR M. HUNTER
- Date Filed:
- 02/23/1993
- Date Assignment:
- 02/25/1993
- Last Docket Entry:
- 02/09/1994
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- CON