93-000963CON Wuesthoff Memorial Hospital, Inc. vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, November 10, 1993.

Summary: Level II neonatal intensive care unit in District 7 needed for geographic access for medicaid and indigents in absence of numeric need and minimum 1,000 births.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WUESTHOFF MEMORIAL HOSPITAL, INC., )

d/b/a WUESTHOFF MEMORIAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0963

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

This case was heard by Eleanor M. Hunter the designated Hearing Officer of

the Division of Administrative Hearings, on May 26-28, 1993, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Kenneth F. Hoffman, Attorney

Patricia A. Renovitch, Attorney

OERTEL, HOFFMAN, FERNANDEZ

& COLE, P.A.

Post Office Box 6507

Tallahassee, Florida 32302

For Respondent: Lesley Mendelson, Senior Attorney

Agency For Health Care Administration

The Atrium Building, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

Whether the application of Wuesthoff Memorial Hospital, Inc. d/b/a

Wuesthoff Memorial Hospital ("Wuesthoff"), for the conversion of ten acute care

beds to ten Level II neonatal intensive care beds meets, on balance, the

applicable statutory and rule criteria for approval.

PRELIMINARY STATEMENT

On August 7, 1992, the Agency for Health Care Administration published a

fixed need pool for zero numeric need for additional Level II NICU beds in

District 7. Wuesthoff filed an application for a Certificate of Need to convert

ten acute care beds to ten Level II NICU beds, which was preliminarily denied by

the Agency. This proceeding was initiated to challenge that preliminary

decision.

At the hearing, Wuesthoff presented the testimony of Joseph Williams, M.D.

(expert in obstetrics and gynecology); Linda L. Miedema, R.N. (expert in nursing

care, maternal-child services, nurse staffing and neonatal intensive care

equipment); Myra Sue Cody, R.N. (expert in community health); Javier Diaz, M.D.

(expert in pediatrics and neonatology); Margo Kelly, C.P.A. (expert in health

care planning, health care finance and accounting); Ronald Eason, M.D. (expert

in obstetrics and gynecology); Joan M. Braun; and the deposition testimony of

Stephen J. Carlan, M.D. Wuesthoff's exhibits 1-7 were received in evidence.

Ruling was reserved on the admissibility of Exhibit 8. AHCA presented the

testimony of Helen O'Laughlin (expert in health planning), and exhibits 1-7,

which were received in evidence.

The transcript of the proceedings was filed with the Division of

Administrative Hearings on June 12, 1993. Proposed findings of fact and

conclusions of law were filed on July 16, 1993.

FINDINGS OF FACT

1. Wuesthoff Memorial Hospital, Inc., d/b/a Wuesthoff Memorial Hospital

("Wuesthoff") is a 303 bed acute care hospital in Rockledge, Florida, in Brevard

County, District 7.

2. The Agency For Health Care Administration ("AHCA") is the state agency

designated by statute to issue, revoke, or deny Certificates of Need ("CON") for

health care beds and services.

3. Wuesthoff is the applicant for a CON to convert ten acute care beds to

a ten bed Level II neonatal intensive care unit ("NICU"), for total project

costs of $1,239,330.

4. By prehearing stipulation, the parties agreed to the following facts:

(1) the fixed need pool for Level II NICU

beds for District 7 shows zero net numeric

bed need;

(2) there are 41 licensed and 18 approved

Level II NICU beds in District 7, 10 in

Brevard County, 49 in Orange County, none in

Osceola and Seminole Counties;

(3) the letter of intent and CON application

were filed timely and properly deemed

complete;

(4) Wuesthoff does not have any approved

Level II NICU beds;

(5) the District 7 Health Plan, including

the 1991 CON Allocation Factors, are

applicable to the review of this application;

and

(6) the 1989 State Health Plan is also

applicable to the review of this application.

5. With regard to the statutory criteria, the parties also agreed that:

(1) Wuesthoff's historic record of providing

high quality care is not in dispute;

(2) Wuesthoff does not maintain that its

NICU service will be intended as a research

and education facility;

(3) the availability of resources, including

management personnel and funds for capital

and operating expenditures, for project

accomplishment and operation, is not in

dispute;

(4) the immediate and long term financial

feasibility of the proposal as demonstrated

in Wuesthoff's application are not in

dispute, assuming Wuesthoff proves the

accuracy of utilization assumptions;

(5) Wuesthoff does not provide a substantial

portion of services or resources to

individuals not residing within the district

or in adjacent districts;

(6) Wuesthoff's past levels of service to

Medicaid and medically indigent patients are

not in dispute;

(7) the special needs and circumstances of

health maintenance organizations are not

applicable to this application; and

(8) the costs and methods of proposed

construction are not in dispute.

6. At issue in this case are the statutory review criteria in Subsections

408.035(1)(a), (b), (d), (e), (f), portions of (h) and (i), (j) and (l), Florida

Statutes (1992 supp.). Subsections 408.035(2)(a), (b), (c) and (d) are also in

dispute.

NEED

7. Subsection 408.035(1)(a) requires consideration of need in relation to

state and local health plans. The 1989 State Health Plan and CON allocation

factors in the 1991 District 7 Health Plan are applicable to the review of

Wuesthoff's CON application.

8. Wuesthoff is not located in Orange County and, therefore, does not meet

the District 7 factor favoring Orange County providers who will serve Medicaid

newborns.

9. The second factor favors applicants proposing to provide at least 45

percent of all patient days to Medicaid patients and 6 percent to indigent

patients. Wuesthoff projected that it would achieve 50.5 percent Medicaid

patient days and 4.5 percent to uninsured patients. Despite these projections,

Wuesthoff failed to make a commitment to have its CON conditioned on the

provision of specified percentages Medicaid and indigent patient days. On this

basis, AHCA concluded that Wuesthoff fails to meet the factor. Wuesthoff's

position is accepted. Its projections justify favorable consideration under

this factor, its historic Medicaid service supports its projections, and AHCA

can condition the CON if appropriate.

10. The third factor requires applicants to identify specific services,

educational programs, and/or interventions which will provide for an unmet need.

This factor is also related to Subsection 408.035(1)(b) - the availability and

accessibility of existing and approved Level II NICU beds in the district;

(2)(a) - the availability of less costly more efficient facilities; and (2)(c)

and (d) - availability and efficiency of existing inpatients facilities, and

problems in obtaining existing inpatient care in the absence of the proposed

services.

11. There is no dispute that there is zero numeric need for additional

Level II NICU beds in District 7. Level II beds exist at Holmes Regional

Medical Center ("Holmes") in Melbourne Brevard County, and in Orange County at

Winter Park Memorial Hospital ("Winter Park"), Orlando Regional Medical Center

("ORMC") and Florida Hospital.

12. Holmes, the only Level II NICU in Brevard County, is, however, not

available because its 10 Level II NICU beds have had occupancy levels not less

than 122 percent and up to 147 percent during the past three years. Holmes

provided 36.8 percent of the NICU services in District 7, with ten of the 59

licensed or approved beds, or 17 percent of the District beds. There was also

evidence that Holmes' physicians do not accept transfers of indigent or Medicaid

obstetrics patients from the service area of Wuesthoff and from northern Brevard

County.

13. In 1992, district wide occupancy in Level II NICU beds was over 95

percent. All of the other providers, except Holmes, are located in Orange

County. Winter Park's 1992 occupancy rate was only 34 percent in its 5 bed

unit. Florida Hospital, with a 1992 rate of 87.8 percent in 14 beds, has been

approved for 8 additional beds. ORMC, with a 1992 occupancy rate averaging 90.2

percent, has approval for an additional 10 beds.

14. Available beds at Winter Park or Florida Hospital have not

historically alleviated overcrowding at Holmes. At hearing, AHCA's expert

health planner testified that Holmes reached 122 percent occupancy when Winter

Park was at 30 percent and Florida Hospital was 58.2 percent.

15. Wuesthoff has demonstrated that Winter Park, Florida Hospital, and

ORMC are geographically and economically inaccessible to Medicaid and indigent

patients in Wuesthoff's service area.

16. Expert testimony linked indigency to a greater need for NICU care.

Wuesthoff demonstrated that Medicaid and indigent obstetrics patients in its

service area cannot and do not use the facilities in Orange County adequately

and appropriately for prenatal care or delivery due to transportation and

economic difficulties. Indigent patients with high risk pregnancies served by

the Brevard County Public Health Unit are referred to ORMC. Experts estimated

that fewer than 50 percent of those end up delivering at ORMC.

17. For Medicaid patients who comply with referrals for prenatal care,

Medicaid is charged $119 per patient per non-emergency, pre-scheduled trip to

ORMC. For infants born in Brevard County in need of Level II care, emergency

transportation to ORMC costs $700 by ambulance or over $2000 by helicopter.

18. The number of Public Health medicaid or indigent obstetrics patients

referred to ORMC from the Wuesthoff area was reasonably estimated to be 250

patients a year. With 50 percent of the babies needing Level II care, the

estimate of 125 neonatal referrals is reasonable.

19. The statutory criterion of need in relation to the State Health Plan

also requires consideration of preferences for applicants (1) converting from

acute care to NICU beds; (2) proposing to serve Children's Medical Services

("CMS"), Medicaid and charity patients; and (3) proposing to serve substance

abusing pregnant and postpartum women. AHCA agreed that the Wuesthoff CON

application meets all of the applicable State Health Plan preferences.

Wuesthoff is proposing, as also required by AHCA rule, to convert acute care

beds, currently utilized at 56.33 percent occupancy. In 1992, Medicaid

obstetric patients days accounted for 50.5 percent of the total. A CMS clinic

is located on the Wuesthoff campus and receives services from its staff

pediatricians. See also, 59C-1.042(3)(j) and (k), F.A.C.

20. Wuesthoff demonstrated the absence of any outpatient alternatives for

Level II NICU beds, as required in Subsection 408.035(1)(d), Florida Statutes,

(1992 supp.).

21. Wuesthoff fails to comply with the criteria in Subsections

408.035(1)(e), (f), (g), (j) and (k), Florida Statutes, (1992 supp.). It

does not plan to jointly operate a NICU with other providers, although it is

under consideration as a satellite regional perinatal intensive care center

("RPICC"). The proposed services are available in adjoining areas, including

Volusia County to the north, where Level II NICU occupancy was 85 percent in

1992. Wuesthoff does not intend to be a research or educational facility, nor

will it serve substantial numbers of individuals residing outside its service

district. Wuesthoff is not a health maintenance organization hospital.

UTILIZATION AND OPERATIONS

22. Pursuant to Subsections 408.035(1)(h), (i) and (l), and (2)(a),

Wuesthoff must be able to staff and fund a Level II NICU that is financially

feasible and does not impact negatively health services quality or costs.

23. AHCA presented no evidence at hearing to contradict that presented by

Wuesthoff to show that it has the staff and funds for its proposed project.

Wuesthoff also has shown that it will profit from the conversion of

underutilized acute care beds to Level II NICU beds.

24. Rule 59C-1.042, Florida Administrative Code, includes the methodology

for calculating numeric need, among other requirements for approval of Level II

NICU programs. Numeric need, under the rule, is zero. In fact, the

calculations show that 15 more Level II beds than needed have been approved in

District 7.

25. As required by the rule, average occupancy rates in District 7

exceeded 80 percent in the 12 months ending 6 months prior to the quarter in

which numeric need was calculated.

26. The rule also favors RPICC's. Wuesthoff is not a RPICC, although it

is under consideration as a satellite of the ORMC RPICC.

27. Wuesthoff is not an existing provider of Level II NICU services, and

therefore, does not qualify for additional beds under the rule.

28. As required by the NICU rule, Wuesthoff's application seeks the

establishment of the minimum size Level II unit of ten beds. The applicant also

has on staff a neonatologist, a head nurse with experience and training in

neonatal intensive care, registered nurses, respiratory therapists, and social

services personnel with the required training. Wuesthoff is capable of

performing the blood gas analyses, clinical laboratory support services, and

intervention screening. If approved, Wuesthoff would also be eligible to

participate in a county grant-funded neonatal developmental disabilities

program.

29. Wuesthoff either has installed or has made appropriate plans to obtain

the equipment and to make the renovations required by Subsections (9)(b) and (c)

of the Rule.

30. Wuesthoff is capable of meeting the data reporting requirements of

Subsection 13 of the Rule.

31. The two hour travel time for geographic access to Level II NICU

services is met by the existing District 7 providers, and Wuesthoff's proposal

is not needed to meet that standard.

MINIMUM BIRTH VOLUME

32. Rule 59C-1.042(6), provides in relevant part, as follows:

Hospitals applying for Level II NICU services

shall not normally be approved unless the

hospital had a minimum service volume of

1,000 live births for the most recent 12-

month period ending 6 months prior to the

beginning date of the quarter of the

publication of the fixed need pool.

33. Wuesthoff does not meet the 1000 minimum number of births. In 1991,

there were 963 live births at Wuesthoff. From 1988-1990, live birth at

Wuesthoff exceeded 1000. In 1992, Wuesthoff had 998 live births. AHCA asserts

that the quality of care that volume requirements assure will be adversely

affected by the approval of Wuesthoff's application. Wuesthoff has presented

competent, substantial evidence that this concern is not well founded, for the

following reasons: A privately-owned Birthing Center located on Merritt Island

in Brevard County, is staffed by a doctor who owns the facility and has hospital

privileges only at Wuesthoff. At the Birthing Center, there were 124 deliveries

in 1990, 156 in 1991, and 178 in 1992. The Birthing Center, Jess Parrish

Memorial Hospital in Titusville, and Cape Canaveral Hospital, all are Brevard

County obstetrics facilities without Level II NICU services. In fact, births at

Cape Canaveral exceeded 1000 in 1992. The live births in these three Brevard

County facilities, at Wuesthoff, and the overcrowding at the Level II NICU at

Holmes, provide a reasonable basis to conclude that Wuesthoff can exceed the

minimum birth volume necessary to meet the quality of care objectives of the

rule.

34. As required by Subsections (11) and (12) of the NICU rule, Wuesthoff

has 24 hour emergency transportation in cooperation with Jess Parrish Memorial

Hospital and Cape Canaveral Hospital. Wuesthoff has a transfer agreement with

ORMC, which has all levels of NICU care.

35. AHCA also questioned Wuesthoff's utilization assumption and

projections. With combined live births at Brevard facilities without Level II

NICUs exceeding 3,000 a year, with two of the facilities jointly operating an

emergency transportation service with Wuesthoff, and the third staffed by a

obstetrician with privileges only at Wuesthoff, Wuesthoff's assumptions that the

majority of neonates born at these facilities needing Level II NICU care will be

transferred to Wuesthoff are reasonable.

36. As agreed in the prehearing stipulation, because utilization

projections are found reasonable, Wuesthoff's proposal is financially feasible.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has jurisdiction over the

subject matter of and parties to this proceeding, pursuant to Subsetions

408.039(5) and 120.57(1), Florida Statutes.

38. Wuesthoff, as the applicant, has the burden of proving its entitlement

to a CON based on a balanced consideration of statutory and rule criteria. Boca

Raton Artificial Kidney Center v. Department of Health and Rehabilitative

Services, 475 So.2d 260 (Fla. 1st DCA 1985); Balsom v. Department of Health and

Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986).

39. Wuesthoff meets all state and local health plan criteria, except the

local criterion for Orange County Medicaid providers.

40. AHCA emphasized the tertiary nature of Level II NICU services, the

absence of numeric need and Wuesthoff's failure to meet minimum birth volumes as

reasons to deny the CON application.

41. The need for Wuesthoff's services was demonstrated by the lack of

space at Holmes and the geographic inaccessibility of other District 7 Level II

providers for Medicaid and indigent patients.

42. There is competent, substantial evidence that Wuesthoff's failure to

meet minimum birth volumes in 1991 in its obstetrics unit will not adversely

affect quality of care, utilization projections, or the financial feasibility of

Wuesthoff's proposal.

43. On balance, Wuesthoff has demonstrated that its CON application meets

the criteria of the statutes and rules provided its CON is conditioned on

providing 51 percent of total Level II NICU patient days to Medicaid or indigent

patients.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be issued approving Certificate of Need 7081

to Wuesthoff Memorial Hospital to convert ten acute care beds to a ten bed Level

II neonatal intensive care unit condi tioned upon Wuesthoff's providing not less

than a combined total of 51 percent Medicaid and indigent patient days in the

unit.

DONE AND ENTERED this 10th day of November, 1993, in Tallahassee, Leon

County, Florida.

___________________________

ELEANOR M. HUNTER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative

Hearings this 10th day of

November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0963

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991),

the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted in Finding of Fact 1.

2. Subordinate to Finding of Fact 33.

3. Accepted in Finding of Fact 4.

4. Accepted in Finding of Fact 4.

5. Accepted in Findings of Fact 11, 12, and 13.

6. Subordinate to Finding of Fact 16.

7. Subordinate to Finding of Fact 16.

8. Subordinate to Finding of Fact 16.

9. Subordinate to Findings of Fact 16 and 17.

10. Subordinate to Findings of Fact 15 and 17.

11. Subordinate to Findings of Fact 12 and 13.

12. Accepted in Finding of Facts 15 and 18.

13. Accepted in Finding of Fact 15.

14. Accepted in Finding of Fact 16.

15. Subordinate to Finding of Fact 17.

16. Accepted in Finding of Fact 17.

17. Subordinate to Finding of Fact 16.

18. Accepted in Finding of Fact 17.

19. Accepted in Finding of Fact 15.

20. Accepted in Finding of Fact 17.

21. Subordinate to Finding of Fact 16.

22. Subordinate to Finding of Fact 16.

23. Subordinate to Finding of Fact 16.

24. Subordinate to Finding of Fact 16.

25. Subordinate to Finding of Fact 16.

26. Subordinate to Finding of Fact 16.

27. Subordinate to Finding of Fact 16.

28. Accepted in Finding of Fact 16.

29. Accepted in Finding of Fact 12.

30. Subordinate to Finding of Fact 16.

31. Accepted in Finding of Fact 16.

32. Accepted in Finding of Fact 15.

33. Accepted in Finding of Fact 15.

34. Accepted in Conclusions of Law 40.

35. Accepted in Finding of Fact 15.

36. Subordinate to Finding of Fact 16.

37. Accepted in Finding of Fact 16.

38. Subordinate to Finding of Fact 16.

39. Subordinate to Finding of Fact 16.

40. Subordinate to Finding of Fact 16.

41. Subordinate to Finding of Fact 15.

42. Subordinate to Finding of Fact 16.

43. Accepted in Finding of Fact 12.

44. Subordinate to Finding of Fact 16.

45. Accepted in Finding of Fact 21.

46. Accepted in Finding of Fact 16 and 17.

47. Accepted in Finding of Fact 16.

48. Subordinate to Finding of Fact 12.

49. Accepted in Finding of Fact 28.

50. Subordinate to Findings of Fact 16 and 17.

51. Subordinate to Findings of Fact 16 and 17.

52. Subordinate to Findings of Fact 16 and 17.

53. Subordinate to Findings of Fact 16 and 17.

54. Accepted in Findings of Fact 21 and 26.

55. Accepted in Findings of Fact 21 and 26.

56. Subordinate to Findings of Fact 21 and 26.

57. Subordinate to Findings of Fact 21 and 26.

58. Subordinate to Findings of Fact 21 and 26.

59. Subordinate to Findings of Fact 21 and 26.

60. Subordinate to Findings of Fact 21 and 26.

61. Subordinate to Findings of Fact 21 and 26.

62. Subordinate to Findings of Fact 21 and 26.

63. Subordinate to Findings of Fact 21 and 26.

64. Subordinate to Findings of Fact 21 and 26.

65. Subordinate to Findings of Fact 21 and 26.

66. Subordinate to Findings of Fact 21 and 26.

67. Accepted in Finding of Fact 17.

68. Subordinate to Finding of Fact 16.

69. Subordinate to Finding of Fact 17.

70. Subordinate to Finding of Fact 18.

71. Accepted in Finding of Fact 35.

72. Subordinate to Findings of Fact 35.

73. Subordinate to Finding of Fact 12 and 35.

74. Accepted in Finding of Fact 19.

75. Accepted in Finding of Fact 19.

76. Accepted in Finding of Fact 9.

77. Accepted in Finding of Fact 9.

78. Accepted in Finding of Fact 78.

79. Accepted in Conclusions of Law 39.

80. Accepted in Finding of Fact 12-15.

81. Accepted in Finding of Fact 12.

82. Accepted in Finding of Fact 12.

83. Accepted in Finding of Fact 12-13.

84. Accepted in Finding of Fact 12.

85. Accepted in relevant part in Finding of Fact 32.

86. Accepted in relevant part in Finding of Fact 32.

87. Accepted in relevant part in Finding of Fact 32.

88. Accepted in relevant part in Finding of Fact 32.

89. Accepted in relevant part in Finding of Fact 32.

90. Accepted in Finding of Fact 20.

91. Rejected Conclusion in Findings of Fact 21.

92. Rejected Conclusion in Findings of Fact 21.

93. Rejected Conclusion in Findings of Fact 21.

94. Accepted in Finding of Fact 23.

95. Accepted in Finding of Fact 23.

96. Accepted in Finding of Fact 17.

97. Accepted in Finding of Fact 33.

98. Accepted in Finding of Fact 21.

99. Accepted in Finding of Fact 21.

100. Accepted in Finding of Fact 23.

101. Accepted in Finding of Fact 5.

102. Accepted in Finding of Fact 9.

103. Accepted in Finding of Fact 9.

104. Accepted in Finding of Fact 9.

105. Accepted in Findings of Fact 10-17.

106. Accepted in Finding of Fact 12.

107. Accepted in Finding of Fact 15.

108. Accepted in Finding of Fact 14.

109. Accepted in Finding of Fact 12.

110. Accepted in Finding of Fact 15.

111. Accepted in Findings of Fact 10-17.

112. Accepted in Findings of Fact 10-17.

113. Accepted in Finding of Fact 24.

114. Accepted in Finding of Fact 24.

115. Accepted in Finding of Fact 25.

116. Accepted in Conclusions of Law 42.

117. Accepted in Finding of Fact 19.

118. Accepted in Finding of Fact 19.

119. Accepted in Finding of Fact 28.

120. Accepted in Finding of Fact 28.

121. Accepted in Finding of Fact 33.

122. Accepted in Finding of Fact 31.

123. Accepted in Finding of Fact 28.

124. Accepted in Finding of Fact 29.

125. Accepted in Finding of Fact 34.

126. Accepted in Finding of Fact 34.

127. Accepted in Finding of Fact 30.

128. Accepted in general in Conclusions of Law 42.

129. Accepted in Finding of Fact 11.

130. Accepted in Findings of Fact 13 and 24.

131. Accepted in Finding of Fact 14.

Respondent's Proposed Findings of Fact.

1. Accepted in Findings of Fact 1 and 4.

2. Accepted in Finding of Fact 3.

3. Accepted in Finding of Fact 4.

4. Accepted in Finding of Fact 4.

5. Accepted in Finding of Fact 8.

6. Rejected in Findings of Fact 9.

7. Rejected in Findings of Fact 10.

8. Accepted in Finding of Fact 19.

9. Accepted in Finding of Fact 19.

10. Accepted in Conclusions of Law 40.

11. Rejected in Conclusions of Law 41.

12. Accepted in Finding of Fact 4.

13. Accepted in Finding of Fact 4.

14. Accepted in Finding of Fact 24.

15. Accepted in Finding of Fact 13.

16. Accepted in Finding of Fact 25.

17. Accepted in Finding of Fact 13.

18. Accepted in Finding of Fact 4.

19. Accepted in Findings of Fact 21 and 26.

20. Subordinate to Finding of Fact 21.

21. Subordinate to Finding of Fact 21.

22. Subordinate to Finding of Fact 21.

23. Subordinate to Finding of Fact 21.

24. Subordinate to Finding of Fact 21.

25. Subordinate to Finding of Fact 21.

26. Accepted in Finding of Fact 31.

27. Accepted in Findings of Fact 16 and 17.

28. Subordinate to Finding of Fact 16.

29. Accepted in Findings of Fact 15-17.

30. Accepted in Finding of Fact 17.

31. Accepted in Finding of Fact 17.

32. Accepted in Finding of Fact 16.

33. Subordinate to Finding of Fact 16.

34. Subordinate to Finding of Fact 16.

35. Rejected in Findings of Fact 12.

36. Accepted in Finding of Fact 35.

37. Accepted in Finding of Fact 12.

38. Rejected first sentence in Finding of Fact 35.

39. Accepted in Finding of Fact 35.

40. Accepted in Finding of Fact 5.

41. Accepted in Finding of Fact 28.

42. Accepted in Finding of Fact 33.

43. Accepted in Finding of Fact 33.

44. Accepted in Finding of Fact 28.

45. Accepted in Finding of Fact 34.

46. Accepted in Finding of Fact 34.

47. Accepted in Finding of Fact 35.

48. Accepted in Finding of Fact 5.

49. Accepted in Finding of Fact 20.

50. Accepted in Finding of Fact 21.

51. Accepted in Finding of Fact 21.

52. Accepted in Finding of Fact 21.

53. Accepted in Findings of Fact 5 and 22.

54. Accepted in Findings of Fact 5 and 22.

55. Accepted in Finding of Fact 21.

56. Accepted in Finding of Fact 23.

57. Accepted in Findings of Fact 5 and 36.

58. Accepted in Finding of Fact 35.

59. Subordinate to Finding of Fact 35.

60. Accepted in Conclusions of Law 40.

61. Subordinate to Finding of Fact 35.

62. Rejected in Findings of Fact 35.

63. Rejected in Findings of Fact 36.

64. Accepted in Finding of Fact 21.

65. Accepted in Finding of Fact 21.

66. Rejected in Findings of Fact 35.

67. Accepted in Finding of Fact 5.

68. Accepted in Finding of Fact 5.

69. Accepted in Finding of Fact 9.

70. Rejected in Findings of Fact 10-17.

71. Rejected first sentence in Findings of Fact 10-17.

72. Rejected in Findings of Fact 10-17.

COPIES FURNISHED:

Kenneth F. Hoffman, Attorney

Patricia A. Renovitch, Attorney

OERTEL, HOFFMAN, FERNANDEZ

& COLE, P.A.

Post Office Box 6507

Tallahassee, Florida 32302

Lesley Mendelson, Senior Attorney

Agency For Health Care Administration

The Atrium Building, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

Sam Power, Agency Clerk

Agency For Health Care Administration

The Atrium Building, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

WUESTHOFF MEMORIAL HOSPITAL,

INC. d/b/a WUESTHOFF

MEMORIAL HOSPITAL,

Petitioner, CASE NO.: 93-0963

RENDITION NO.: AHCA-94-14-S-CON

vs.

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Respondent.

______________________________/

FINAL ORDER

The parties reached a Settlement Agreement resolving all disputed issues.

Upon consideration of the foregoing, the Stipulation and Settlement

Agreement of December 8, 1993, is approved and the agency's file is CLOSED. CON

7081 is approved pursuant to the terms of the Stipulation and Settlement

Agreement.

DONE and ORDERED this 7th day of February, 1994, in Tallahassee, Florida.

_____________________________________

Douglas M. Cook, Director

Agency for Health Care Administration

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.

Copies furnished to:

Lesley Mendelson, Esquire

Senior Attorney, Agency for

Health Care Administration

325 John Knox Road

Atrium Building, Suite 301

Tallahassee, Florida 32303-4131

Kenneth F. Hoffman, Esquire

OERTEL, HOFFMAN, FERNANDEZ

& COLE, P. A.

Post Office Box 6507

Tallahassee, Florida 32314-6507

Elizabeth Dudek (AHCA/CON)

Alberta Granger (AHCA/CON)

Elfie Stamm (AHCA/CON) )

DOAH

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished to the above named people by U.S. Mail this 8th day of February, 1994.

___________________________________

R. S. Power, Agency Clerk

State of Florida, Agency for

Health Care Administration

325 John Knox Road

The Atrium Building, Suite 301

Tallahassee, Florida 32303

[phone]

power/12-30-93

Attachment

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

WUESTHOFF MEMORIAL HOSPITAL, INC.

d/b/a WUESTHOFF MEMORIAL HOSPITAL,

Petitioner,

vs. CASE NO. 93-0963

STATE OF FLORIDA AGENCY FOR HEALTH

CARE ADMINISTRATION,

Respondent.

_____________________________________/

STIPULATION AND SETTLEMENT AGREEMENT

Petitioner, Wuesthoff Memorial Hospital, Inc. d/b/a Wuesthoff Memorial

Hospital (Wuesthoff), and Respondent, State of Florida Agency for Health Care

Administration (Agency), by and through undersigned counsel, hereby stipulate

and agree as follows:

1. In consideration for the granting of certificate of need #7081 applied

for by Wuesthoff, and in light of the Hearing Officer's Recommended Order in

this case, Petitioner, Wuesthoff, agrees to accept the Hearing Officer's

recommended condition on the certificate of need to the effect that Wuesthoff

will provide not less than a combined total of 51 per cent Medicaid and indigent

patient days in the Level II NICU unit. In addition, upon the issuance of CON

#7081 Wuesthoff will dismiss its Petition in this case.

2. In consideration for acceptance of the above-stated condition by the

applicant, the Respondent, Agency, stipulates and agrees to enter a Final Order

granting certificate of need #7081, to include conversion of ten acute care beds

to a ten-bed Level II neonatal intensive care unit conditioned as set forth in

paragraph 1, above.

3. Each party agrees to pay its own costs.

4. The undersigned agree to sign this Stipulation and Settlement Agreement

on behalf of their clients.

WHEREFORE, the parties stipulate and agree that certificate of need #7081

shall be issued as requested by the applicant, with the additional condition as

set forth in paragraph 1, above, and upon issuance of CON #7081 by the Agency,

Wuesthoff will dismiss its Petition in this case.

DATED this 8th day of December, 1993.

_____________________________ __________________________________

Lesley Mendelson Kenneth F. Hoffman

Agency for Health Care Florida Bar Number: 127706

Administration Oertel, Hoffman, Fernandez

Suite 301, The Atrium Building & Cole, P.A.

325 John Knox Road Post Office Box 6507

Tallahassee, Florida 32303 Tallahassee, Florida 32314

904/921-0096 904/877-0099

Attorneys for Respondent Attorneys for Petitioner

KFH/Westhoff/663-48.set/kmp