94-004755CON Mount Sinai Medical Center Of Greater Miami, Inc., D/B/A Mount Sinai Medical Center vs. Miami Beach Healthcare Group, Ltd., D/B/A Miami Heart Institute Status: Closed Recommended Order on Wednesday, April 5, 1995.

Summary: Relocation of existing beds didn't change Fixed Need Pool and applicant met criteria for approval.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOUNT SINAI MEDICAL CENTER OF )

GREATER MIAMI, INC., d/b/a )

MOUNT SINAI MEDICAL CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4755

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, and MIAMI BEACH )

HEALTHCARE GROUP, LTD., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its

designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the

above-styled case on December 13-15, 1994, in Tallahassee, Florida.

APPEARANCES

For Mount Sinai: R. Terry Rigsby

Geoffrey D. Smith

Blank, Rigsby & Meenan, P.A.

204 South Monroe Street

Tallahassee, Florida 32302

For AHCA: Lesley Mendelson

Senior Attorney

Agency for Health Care Administration

325 John Knox Road, Suite 301

Tallahassee, Florida 32303-4131

For MBHG: Stephen Ecenia

Rutledge, Ecenia, Underwood,

Purnell & Hoffman, P.A.

215 South Monroe Street, Suite 420

Tallahassee, Florida 32302-0551

STATEMENT OF THE ISSUES

Whether the Agency for Health Care Administration (AHCA or the Agency)

should approve the application for certificate of need (CON) 7700 filed by Miami

Beach Healthcare Group, LTD. d/b/a Miami Heart Institute (Miami Heart or MH).

PRELIMINARY STATEMENT

On March 23, 1994, Miami Heart submitted an application for a CON to add to

the south campus of its facility up to twenty adult psychiatric beds that were

delicensed from its north campus. In effect, MH proposed to transfer the beds

from one facility owned by Miami Heart to another of its facilities. This

project was identified as CON 7700 by AHCA. The delicensure request was also

reviewed and approved as a separate proposal (CON 7474), and that decision has

not been challenged.

The State Agency Action Report (SAAR) for CON 7700 was issued on June 28,

1994, and recommended that final agency action be the approval of CON 7700 with

the conditions that for each of the first two years of operation Miami Heart

would provide 13.6 percent of total projected inpatient adult psychiatric

patient days for Medicaid and 2.0 percent of psychiatric patient days for

charity care. The Agency incorporated this conditional approval by proposed

final order entered July 6, 1994, and notice of that action was published in the

Florida Administrative Weekly on July 22, 1994.

Thereafter, Petitioner, Mount Sinai Medical Center of Greater Miami, Inc.

d/b/a Mount Sinai Medical Center (Mount Sinai or MS), an existing health care

facility doing business in the same service district, timely challenged the

Agency's proposed action by filing a petition for formal administrative hearing

on July 25, 1994. That petition alleged that Mount Sinai's substantial

interests will be affected by the decision to approve CON 7700 and that issues

of fact remain as to whether Miami Heart's application is entitled to approval.

The case was forwarded to the Division of Administrative Hearings for

formal proceedings on August 30, 1994. By notice entered on September 27, 1994,

the hearing was scheduled for December 12 through 16, 1994. By agreement of the

parties, the start of the hearing was delayed to December 13, 1994.

The parties filed a prehearing statement on November 23, 1994. Where

pertinent, stipulated findings of fact from that document are incorporated

below. The prehearing statement set forth the following as the remaining issues

for final hearing:

a. Whether approval of Miami Heart's CON application is precluded by

the principles of batched comparative review as set forth in Gulf Court Nursing

Center, Inc. v. Department of Health and Rehabilitative Services, 483 So.2d 700

(Fla. 1st DCA 1986) and incorporated in the statutes and rules governing CON

review?

b. Whether the CON application contains "not normal circumstances"

which justify approval of the application where the published fixed need pool is

zero?

c. Whether a determination of a numeric need for beds is applicable

or relevant to an evaluation of Miami Heart's CON application.

On December 8, 1994, Mount Sinai filed an emergency motion to consolidate

and request for expedited hearing followed by a motion for continuance. Such

motions related to a challenge to an unpromulgated rule. Petitioner claimed the

Agency was relying on an unpromulgated rule in connection with factual matters

derived from this case. The motions to consolidate and expedite, as well as to

continue were denied.

At the hearing, the Agency presented the testimony of Elizabeth Dudek,

chief of the Agency's certificate of need and budget review sections responsible

for the oversight of both the CON and budget review programs. Its exhibits

numbered 1 through 6 were admitted into evidence.

Dr. Ronald T. Luke, a consultant accepted as an expert in health planning

and health care economics testified on behalf of Miami Heart. Its exhibits

numbered 1 through 7 were received into evidence. Miami Heart requested, and

official recognition was taken, of case law cited in the record.

Mount Sinai presented the testimony of Howard Fagin, a consultant who

provides business and financial consultation services to medical and health care

professionals, and who was accepted as an expert in health planning and

economics; and Elmo Elrod, an employee with the Agency's facility regulation

section. Its exhibits numbered 1 through 8 were admitted.

At the conclusion of the hearing, the parties were granted leave to file

specific objections to portions of depositions being offered in this cause.

Having considered the objections and responses filed, the deposition testimony

of the following individuals has been admitted: Stephen Bernstein, Elizabeth

Dudek, Arnold Lieber, Leslie Linevsky, and Douglas Webster. However, any

proposed finding of fact submitted solely in reliance on deposition testimony

which has been deemed irrelevant or immaterial to this case is so identified in

the appendix to this order and has been rejected.

Mount Sinai filed a motion to reopen case or in the alternative motion to

supplement the record on January 5, 1995. The request sought to reopen the

record for the limited purpose of presenting additional evidence on a proposed

rule change which was allegedly published after the conclusion of the final

hearing. Having reviewed the motion and the response filed thereto, such motion

is denied.

The transcript of the proceedings was filed on January 25, 1995.

Thereafter, the Petitioner, representing all parties had agreed, requested

additional time to file proposed recommended orders. By order entered February

1, 1995, such time was extended to February 10, 1995. All parties timely

submitted proposed recommended orders. Specific rulings on the proposed

findings of fact are included in the appendix at the conclusion of this order.

Miami Heart's motion to strike Mount Sinai's closing argument and

memorandum of law filed on February 13, 1995, is hereby denied.

FINDINGS OF FACT

1. The Agency is the state agency charged with the responsibility of

reviewing and taking action on CON applications pursuant to Chapter 408, Florida

Statutes.

2. The applicant, Miami Heart, operates a hospital facility known as Miami

Heart Institute which, at the time of hearing, was comprised of a north campus

(consisting of 273 licensed beds) and a south campus (consisting of 258 beds) in

Miami, Florida.

3. The two campuses operate under a single license which consolidated the

operation of the two facilities. The consolidation of the license was approved

by CON 7399 which was issued by the Agency prior to the hearing of this case.

4. The Petitioner, Mount Sinai, is an existing health care facility doing

business in the same service district.

5. On February 4, 1994, AHCA published a fixed need pool of zero adult

inpatient psychiatric beds for the planning horizon applicable to this batching

cycle. The fixed need pool was not challenged.

6. On February 18, 1994, Miami Heart submitted its letter of intent for

the first hospital batching cycle of 1994, and sought to add twenty adult

general inpatient psychiatric beds at the Miami Heart Institute south campus.

Such facility is located in the Agency's district 11 and is approximately two

(2) miles from the north campus.

7. Notice of that letter was published in the March 11, 1994, Florida

Administrative Weekly.

8. Miami Heart's letter of intent provided, in pertinent part:

4. By this letter, Miami Beach Healthcare Group,

Ltd., d/b/a Miami Heart Institute announces its

intent to file a Certificate of Need Application

on or before March 23, 1994 for approval to

establish 20 hospital inpatient general psychiatric

beds for adults at Miami Heart Institute.

5. Thus, the applicant seeks approval for this

project pursuant to Sections 408.036(1)(h), Florida

Statutes.

6. The proposed capital expenditure for this project

shall not exceed $1,000,000 and will include new

construction and the renovation of existing space.

7. Miami Heart Institute is located in Local Health

Council District 11. There are no subsdistricts

for Hospital Inpatient General Psychiatric Beds for

Adults in District 11. The applicable need formula

for Hospital General Psychiatric Beds for Adults is

contained within Rule 59C-1.040(4)(c), F.A.C. The

Agency published a fixed need of "0" for Hospital

General Psychiatric Beds for Adults in District 11

for this batching cycle.

8. However, "not normal" circumstances exist

within District which justify approval of this

project. These circumstances are that Miami Beach

Community Hospital, which is also owned by Miami

Beach Healthcare Group, Ltd., and which has an

approved Certificate of Need Application to consol-

idate its license with that of the Miami Heart

Institute, has pending a Certificate of Need

Application to delicense up to 20 hospital inpatient

general psychiatric beds for adults. The effect

of the application, which is the subject of this

Letter of Intent, will be to relocate 20 of the

delicensed adult psychiatric beds to the Miami

Heart Institute.

9. Because of the "not normal" circumstances alleged in the Miami Heart

letter of intent, the Agency extended a grace period to allow competing letters

of intent to be filed. No additional letters of intent were submitted during

the grace period.

10. On March 23, 1994, Miami Heart timely submitted its CON application

for the project at issue, CON no. 7700. Notice of the application was published

in the April 8, 1994, Florida Administrative Weekly. Such application was

deemed complete by the Agency and was considered to be a companion to the

delicensure of the north campus beds.

11. On July 22, 1994, the Agency published in the Florida Administrative

Weekly its preliminary decision to approve CON no. 7700.

12. In the same batch as the instant case, Cedars Healthcare Group

(Cedars), also in district 11, applied to add adult psychiatric beds to Cedars

Medical Center through the delicensure of an equal number of adult psychiatric

beds at Victoria Pavilion. Cedars holds a single license for the operation of

both Cedars Medical Center and Victoria Pavilion. As in this case, the Agency

gave notice of its intent to grant the CON application. Although this

"transfer" was initially challenged, it was subsequently dismissed.

13. Although filed at the same time (and, therefore, theoretically within

the same batch), the Cedars CON application and the Miami Heart CON application

were not comparatively reviewed by the Agency. The Agency determined the

applicants were merely seeking to relocate their own licensed beds.

14. Based upon that determination, MH's application was evaluated in the

context of the statutory criteria, the adult psychiatric beds and services rule

(Rule 59C-1.040, Florida Administrative Code), the district 11 local health

plan, and the 1993 state health plan. Ms. Dudek also considered the utilization

data for district 11 facilities.

15. Mount Sinai timely filed a petition challenging the proposed approval

of CON 7700 and, for purposes of this proceeding only, the parties stipulated

that MS has standing to raise the issues remaining in this cause.

16. Mount Sinai's existing psychiatric unit utilization is presently at or

near full capacity, and MS' existing unit would not provide an adequate,

available, or accessible alternative to Miami Heart's proposal, unless

additional bed capacity were available to MS in the future through approval of

additional beds or changes in existing utilization.

17. Miami Heart's proposal to establish twenty adult general inpatient

psychiatric beds at its Miami Heart Institute south campus was made in

connection with its application to delicense twenty adult general inpatient

psychiatric beds at its north campus.

18. The Agency advised MH to submit two CON applications: one for the

delicensure (CON no. 7474) and one for the establishment of the twenty beds at

the south campus (CON no. 7700). The application to delicense the north campus

beds was expeditiously approved and has not been challenged.

19. As to the application to establish the twenty beds at the south

campus, the following statutory criteria are not at issue: Section

408.035(1)(c), (e), (f), (g), (h), (i), (j), (k), (m), (n), (o) and (2)(b) and

(e), Florida Statutes. The parties have stipulated that Miami Heart meets, at

least minimally, those criteria.

20. During 1993, Miami Heart made the business decision to cease

operations at its north campus and to seek the Agency's approval to relocate

beds and services from that facility to other facilities owned by MH, including

the south campus.

21. Miami Heart does not intend to delicense the twenty beds at the north

campus until the twenty beds are licensed at the south campus.

22. The goal is merely to transfer the existing program with its services

to the south campus. Miami Heart did not seek beds from a fixed need pool.

23. Since approximately April, 1993, the Miami Heart north campus has

operated with the twenty bed adult psychiatric unit and with a limited number of

obstetrical beds.

24. The approval of CON no. 7700 will not change the overall total number

of adult general inpatient psychiatric beds within the district.

25. The adult psychiatric program at MH experiences the highest

utilization of any program in district 11, with an average length of stay that

is consistent with other adult programs around the state.

26. Miami Heart's existing psychiatric program was instituted in 1978.

Since 1984, there has been little change in nursing and other staff. The

program provides a full continuum of care, with outpatient programs, aftercare,

and support programs. Nearly ninety-nine percent of the program's inpatient

patient days are attributable to patients diagnosed with serious mental

disorders.

27. The Miami Heart program specializes in a biological approach to

psychiatric cases in the diagnosis and treatment of affective disorders,

including a variety of mood disorders and related conditions.

28. The Miami Heart program is distinctive from other psychiatric programs

in the district. If the MH program were discontinued, the patients would have

limited alternatives for access to the same diagnostic and treatment services in

the district.

29. There are no statutes or rules promulgated which specifically address

the transfer of psychiatric beds or services from one facility owned by a health

care entity to another facility also owned by the same entity.

30. In reviewing the instant CON application, the Agency determined it has

the discretion to evaluate each transfer case based upon the review criteria and

to consider the appropriate weight factors should be given. Factors which may

affect the review include the change of location, the utilization of the

existing services, the quality of the existing programs and services, the

financial feasibility, architectural issues, and any other factor critical to

the review process.

31. In this case, the weight given to the numeric need criteria was not

significant. The Agency determined that because the transfer would not result

in a change to the overall bed inventory, the calculated fixed need pool did not

apply to the instant application. In effect, because the calculation of numeric

need was inapplicable, this case must be considered "not normal" pursuant to

Rule 59C-1.040(4)(a), Florida Administrative Code.

32. The Agency determined that other criteria were to be given greater

consideration. Such factors were the reasonableness of the proposal, the

ability to afford access, the applicant's ability to provide a quality program,

and the project's financial feasibility.

33. The Agency determined that, on balance, this application should be

approved as the statutory and other review criteria were met.

34. Although put on notice of the other CON applications, Mount Sinai did

not file an application for psychiatric beds at the same time as Miami Heart or

Cedars. Mount Sinai did not claim that the proposed delicensures and transfers

made beds available for competitive review.

35. The Agency has interpreted Rule 59C-1.040, Florida Administrative

Code, to mean that it will not normally approve an application for beds or

services unless the statutory and rule criteria are met, including the need

determination criteria.

36. There is no list of circumstances which are routinely considered "not

normal" by the Agency. In this case, the proposed transfer of beds was, in

itself, considered "not normal."

37. The approval of Miami Heart's application would allow an existing

program to continue. As a result, the overhead to maintain two campuses would

be reduced.

38. Further, the relocation would allow the program to continue to provide

access, both geographically and financially, to the same patient service area.

And, since the program has the highest utilization rate of any adult program in

the district, its continuation would be beneficial to the area.

39. The program has an established referral base for admissions to the

facility.

40. The transfer is reasonable for providing access to the medically

under-served.

41. The quality of care, while not in issue, would be expected to

continue at its existing level or improve. The transfer would allow better

access to ancillary hospital departments and consulting specialists who may be

needed even though the primary diagnosis is psychiatric.

42. The cost of the transfer when compared to the costs to be incurred if

the transfer is not approved make the approval a benefit to the service area.

43. If the program is not relocated, Medicaid access could change if the

hospital is reclassified from a general facility to a specialty facility.

44. The proposed cost for the project does not exceed one million dollars.

If the north campus must be renovated, a greater capital expenditure would be

expected.

45. The expected impact on competition for other providers is limited due

to the high utilization for all programs in the vicinity.

46. The subject proposal is consistent with the district and state health

care plans and the need for health care facilities and services. The services

being transferred is an existing program which is highly utilized and which is

not creating "new beds." As such, the proposal complies with Section

408.035(1)(a), Florida Statutes.

47. The availability, quality of care, efficiency, appropriateness,

accessibility, extent of utilization, and adequacy of like and existing services

in the district will not be adversely affected by the approval of the subject

application. The proposed transfer is consistent with, and appropriate, in

light of these criteria. Therefore, the proposal complies with Section

408.035(1)(b), Florida Statutes.

48. The subject application demonstrates a full continuum of care with

safeguards to assure that alternatives to inpatient care are fully utilized when

appropriate. Therefore, the availability and adequacy of other services, such

as outpatient care, has been demonstrated and would deter unnecessary

utilization. Thus, Miami Heart has shown its application complies with Section

408.035(1)(d), Florida Statutes.

49. Miami Heart has also demonstrated that the probable impact of its

proposal is in compliance with Section 408.035(1)(l), Florida Statutes. The

proposed transfer will not adversely impact the costs of providing services, the

competition on the supply of services, or the improvements or innovations in the

financing and delivery of services which foster competition, promote quality

assurance, and cost-effectiveness.

50. Miami Heart has taken an innovative approach to promote quality

assurance and cost effectiveness. Its purpose, to close a facility and relocate

beds (removing unnecessary acute care beds in the process), represents a

departure from the traditional approach to providing health care services. By

approving Miami Heart's application, overhead costs associated with the

unnecessary facility will be eliminated.

51. There is no less costly, more efficient alternative which would allow

the continuation of the services and program Miami Heart has established at the

north campus than the approval of transfer to the south campus. The MH proposal

is most practical and readily available solution which will allow the north

campus to close and the beds and services to remain available and accessible.

52. The renovation of the medical surgical space at the south campus to

afford a location for the psychiatric unit is the most practical and readily

available solution which will allow the north campus to close and the beds and

services to remain available and accessible.

53. In totality, the circumstances of this case make the approval of Miami

Heart's application for CON no. 7700 the most reasonable and practical solution

given the "not normal" conditions of this application.

CONCLUSIONS OF LAW

54. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Section 120.57(1),

Florida Statutes.

55. The applicant has the burden of proof to establish its entitlement to

the requested CON. Boca Raton Artificial Kidney Center, Inc. v. Department of

Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985).

56. It is well settled that approval of a CON must be based upon a

balanced consideration of relevant statutory and rule criteria, with no single

criterion being necessarily determinative. See St. Joseph's Hospital v.

Department of Health and Rehabilitative Services, 536 So.2d 346 (Fla. 1st DCA

1988) and Department of Health and Rehabilitative Services v. Johnson & Johnson

Home Health Care, Inc., 447 So.2d 361 (Fla. 1st DCA 1984).

57. The appropriate weight to be given each individual criterion is not

fixed, but is reviewed on a case-by-case basis, with the facts in each case

being considered. North Ridge General Hospital, Inc. v. NME Hospitals, Inc.,

478 So.2d 1138 (Fla. 1st DCA 1985) and Collier Medical Center, Inc. v.

Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA

1985).

58. The parties, by stipulation, have limited the review criteria at issue

in this proceeding.

59. As pertinent to the remaining issues of this case, Section 408.035,

Florida Statutes, provides:

Review criteria.

(1) The agency shall determine the review-

ability of applications and shall review

applications for certificate-of-need determi-

nations for health care facilities and services,

hospices, and health maintenance organizations

in context with the following criteria:

(a) The need for the health care facilities

and services and hospices being proposed in

relation to the applicable district plan and

state health plan, except in emergency circum-

stances which pose a threat to the public health.

(b) The availability, quality of care,

efficiency, appropriateness, accessibility,

extent of utilization, and adequacy of like

and existing health care services and hospices

in the service district of the applicant.

* * *

(d) The availability and adequacy of other

health care facilities and services and hospices

in the service district of the applicant, such as

outpatient care and ambulatory or home care

services, which may serve as alternatives for

the health care facilities and services to be

provided by the applicant.

* * *

(l) The probable impact of the proposed

project on the costs of providing health services

proposed by the applicant, upon consideration of

factors including, but not limited to, the effects

of competition on the supply of health services

being proposed and the improvements or innovations

in the financing and delivery of health services

which foster competition and service to promote

quality assurance and cost-effectiveness.

* * *

(2) In cases of capital expenditure proposals

for the provision of new health services to

inpatients, the department shall also reference

each of the following in its findings of fact:

(a) That less costly, more efficient, or

more appropriate alternatives to such inpatient

services are not available and the development of

such alternatives has been studied and found not

practicable.

* * *

(c) In the case of new construction, that

alternatives to new construction, for example,

modernization or sharing arrangements, have been

considered and have been implemented to the maximum

extent practicable.

(d) That patients will experience serious

problems in obtaining inpatient care of the type

proposed, in the absence of the proposed new service.

60. With regard to the criteria found in Section 408.035(1), Florida

Statutes, the applicant has established it complies with such provisions. The

existing program at MH's north campus is successful. The proposed relocation of

that program is consistent with the district and state health care plans and the

need for health care facilities and services.

61. The program to be relocated is highly utilized. No "new" beds will be

created by the approval of this relocation. [See Section 408.035(1)(a), Florida

Statutes.]

62. The availability, quality of care, efficiency, appropriateness,

accessibility, extent of utilization, and adequacy of like and existing services

in the district will not be adversely affected by the approval of the subject

application. Again, the relocation of the existing program will not adversely

impact the utilization currently experienced by the applicant or other

providers. The program will remain available, its quality of care will remain

at its high level (or improve because of the availability of ancillary

services), and existing services will not be adversely impacted (there is no

evidence that they are currently damaged by this program). [See Section

408.035(1)(b), Florida Statutes.]

63. The subject application demonstrates a full continuum of care with

safeguards to assure that alternatives to inpatient care are fully utilized when

appropriate. In fact, the inpatient utilization (length of stay, for example)

is consistent with other programs in the state. Therefore, the availability and

adequacy of other services, such as outpatient care, have been demonstrated.

The relocation of its program should deter unnecessary utilization. [See

Section 408.035(1)(d), Florida Statutes.]

64. The proposed transfer will not adversely impact the costs of providing

services, the competition on the supply of services, or the improvements or

innovations in the financing and delivery of services which foster competition,

promote quality assurance, and cost-effectiveness. If anything, the relocation

should result in lower costs of operation which may result in improved

efficiency and expense. [See Section 408.035(1)(l), Florida Statutes.]

65. With regard to the criteria found in Section 408.035(2), Florida

Statutes, such provision applies to capital expenditure proposals for the

provision of new health services to inpatients. In this case, the Agency has

determined, and it is concluded, that no "new" beds or services will be granted

by the approval of this CON.

66. However, Section 408.032(1), Florida Statutes, provides, in part:

"Capital expenditure" means an expenditure,

including an expenditure for a construction

project undertaken by a health care facility

as its own contractor, which, . . . changes

the bed capacity of the facility, . . . and

which includes the cost of the studies, surveys,

designs, plans, working drawings, specifications,

initial financing costs, and other activities

essential to acquisition, improvement, expansion,

or replacement of the plant and equipment.

[Emphasis added.]

67. Accordingly, to the extent Section 408.035(2), Florida Statutes, may

be deemed applicable, it is found that the subject proposal comports with the

criteria of that provision. It is concluded that there is no less costly, more

efficient, or more appropriate alternative to the applicant's proposal. Miami

Heart has proposed an innovative approach to reducing overhead and unnecessary

facilities by consolidating the twenty bed unit at the south campus. The

patients utilizing the program and services should experience no serious problem

in obtaining the continued services but could encounter difficulties if the

program is not relocated.

68. Rule 59C-1.040, Florida Administrative Code, addresses the creation of

new beds. It does not speak to the relocation of beds as contemplated in this

case nor does the applicant seek to convert one type of beds to create new

psychiatric beds. Accordingly, it is concluded that since no "new" beds or

services will be granted by the approval of this CON, such rule is not

applicable.

69. However, to the extent Rule 59C-1.040, Florida Administrative Code,

may be deemed applicable, it is found that the subject proposal comports with

the criteria of that provision.

70. Rule 59C-1.040(3)(f), Florida Administrative Code, provides, in part:

Conformance with the Criteria for Approval. A

certificate of need for the establishment of new

hospital inpatient general psychiatric services,

or the expansion of existing services by addition

of beds, shall not normally be approved unless the

applicant meets the applicable review criteria in

section 408.035, F.S., and the standards and need

determination criteria set forth in this rule.

71. The criteria referenced above are set forth in Rule 59C-1.040(4),

Florida Administrative Code, and provide, in part:

(a) Bed Need. A favorable need determination for

proposed new or expanded hospital inpatient general

psychiatric services shall not normally be made

unless a bed need exists according to the numeric

need methodology specified in paragraphs (4)(c) or

(4)(f) of this rule.

72. While the proposed relocation of beds does not fall within a

calculated need, the applicant has established that the transfer does not create

new beds, and that the transfer proposed is, in itself, a "not normal"

situation.

73. In this case, the applicant followed the recommendation of the Agency

and proposed to relocate the subject beds by delicensing the north campus beds

in conjunction with the proposed licensing at the south campus. No new beds are

created by the transfer and no useful purpose would result from applying the

need methodology to the instant case.

74. The Petitioner argues that by failing to return the twenty beds to the

fixed need pool, it has been denied the opportunity to seek and to be

comparatively reviewed for such beds. Citing Gulf Court Nursing Center v.

Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA

1986), Mount Sinai maintains that the Agency erred in allowing the applicant to

be reviewed against the criteria discussed above. Gulf Court does not apply to

this case.

75. First, in order for Gulf Court to apply, Mount Sinai would have to be

an applicant for the beds at issue. In this case, Mount Sinai did not apply for

the beds. Despite being aware of the applicant's claim and theory for making

the application, Mount Sinai did not file an application for the beds to be

relocated. A comparative review can only be made where two entities vie for the

same beds. The Agency did not deny Mount Sinai the opportunity to apply for

beds with this batch. In fact, the time to file a letter of intent was extended

to allow applicants to respond to this applicant's proposal.

76. Secondly, had Mount Sinai challenged the fixed need pool calculation,

and asserted the Agency should have made the delicensed beds from the north

campus available, the Petitioner would have had a second point of entry to

dispute the Agency's action. In this case, no one challenged the fixed need

pool.

77. Finally, Mount Sinai does not have an application for beds in any

batch. As no new beds were created or authorized, only the applicant's ability

to comply with the criteria cited above need be considered.

78. As the proposed relocation of beds is a not normal circumstance with

no new beds, services or programs being created, the applicant has demonstrated

it is entitled to the approval of CON 7700.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Agency for Health Care Administration enter a final order

approving CON 7700 as recommended in the SAAR.

DONE AND RECOMMENDED this 5th day of April, 1995, in Tallahassee, Leon

County, Florida.

___________________________________

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4755

Note: Proposed findings of fact are to contain one essential fact per numbered

paragraph. Proposed findings of fact paragraphs containing multiple sentences

with more than one statement of fact are difficult to review. In reviewing for

this case, where all sentences were accurate and supported by the recorded

cited, the paragraph has been accepted. If the paragraph contained mixed

statements where one sentence was an accurate statement of fact but the others

were not, the paragraph has been rejected. Similarly, if one sentence was

editorial comment, argument, or an unsupported statement to a statement of fact,

the paragraph has been rejected.

Proposed findings of fact should not include argument, editorial comments,

or statements of fact mixed with such comments.

Rulings on the proposed findings of fact submitted by Petitioner, Mount

Sinai:

Paragraphs 1 through 13 were cited as stipulated facts.

1. Paragraph 14 is rejected as irrelevant.

2. With regard to paragraph 15 it is accepted that Miami Heart made the

business decision to move the psychiatric beds beds from the north campus to the

south campus. Any inference created by the remainder of the paragraph is

rejected as irrelevant.

3. Paragraph 16 is rejected as irrelevant.

4. Paragraph 17 is rejected as irrelevant.

5. Paragraph 18 is accepted.

6. Paragraph 19 is rejected as irrelevant.

7. Paragraph 20 is rejected as contrary to the weight of the credible

evidence.

8. Paragraph 21 is rejected as contrary to the weight of the credible

evidence.

9. Paragraph 22 is accepted.

10. Paragraph 23 is rejected as irrelevant.

11. Paragraph 24 is accepted.

12. Paragraph 25 is rejected as repetitive, or immaterial, unnecessary to

the resolution of the issues.

13. Paragraph 26 is rejected as irrelevant or contrary to the weight of

the credible evidence.

14. Paragraph 27 is rejected as comment or conclusion of law, not fact.

15. Paragraph 28 is accepted but not relevant.

16. Paragraphs 29 and 30 are accepted.

17. Paragraphs 31 through 33 are rejected as argument, comment or

irrelevant.

18. Paragraph 34 is rejected as comment or conclusion of law, not fact.

19. Paragraph 35 is rejected as comment or conclusion of law, not fact, or

irrelevant as the FNP was not in dispute.

20. Paragraph 36 is rejected as irrelevant.

21. Paragraph 37 is rejected as repetitive, or comment.

22. Paragraph 38 is rejected as repetitive, comment or conclusion of law,

not fact, or irrelevant.

23. Paragraph 39 is rejected as argument or contrary to the weight of

credible evidence.

24. Paragraph 40 is accepted.

25. Paragraph 41, 42, and 43 are rejected as contrary to the weight of the

credible evidence and/or argument.

26. Paragraph 44 is rejected as argument and comment on the testimony.

27. Paragraph 45 is rejected as argument, irrelevant, and/or not supported

by the weight of the credible evidence.

28. Paragraph 46 is rejected as argument.

29. Paragraph 47 is rejected as comment or conclusion of law, not fact.

30. Paragraph 48 is rejected as comment, argument or irrelevant.

31. Paragraph 49 is rejected as comment on testimony. It is accepted that

the proposed relocation or transfer of beds is a "not normal" circumstance.

32. Paragraph 50 is rejected as argument or irrelevant.

33. Paragraph 51 is rejected as argument or contrary to the weight of

credible evidence.

34. Paragraph 52 is rejected as argument or contrary to the weight of

credible evidence.

35. Paragraph 53 is rejected as argument, comment or recitation of

testimony, or contrary to the weight of credible evidence.

36. Paragraph 54 is rejected as irrelevant or contrary to the weight of

credible evidence.

37. Paragraph 55 is rejected as irrelevant, comment, or contrary to the

weight of credible evidence.

38. Paragraph 56 is rejected as irrelevant or argument.

39. Paragraph 57 is rejected as irrelevant or argument.

40. Paragraph 58 is rejected as contrary to the weight of credible

evidence.

41. Paragraph 59 is rejected as irrelevant.

42. Paragraph 60 is rejected as contrary to the weight of credible

evidence.

43. Paragraph 61 is rejected as argument or contrary to the weight of

credible evidence.

44. Paragraph 62 is rejected as argument or contrary to the weight of

credible evidence.

45. Paragraph 63 is accepted.

46. Paragraph 64 is rejected as irrelevant. Mount Sinai could have filed

in this batch given the not normal circumstances disclosed in the Miami Heart

notice.

47. Paragraph 65 is rejected as irrelevant.

48. Paragraph 66 is rejected as comment or irrelevant.

49. Paragraph 67 is rejected as argument or contrary to the weight of

credible evidence.

50. Paragraph 68 is rejected as argument or irrelevant.

51. Paragraph 69 is rejected as argument, comment or irrelevant.

52. Paragraph 70 is rejected as argument or contrary to the weight of

credible evidence.

Rulings on the proposed findings of fact submitted by the Respondent,

Agency:

1. Paragraphs 1 through 6 are accepted.

2. With the deletion of the words "cardiac catheterization" and the

inclusion of the word "psychiatric beds" in place, paragraph 7 is accepted.

Cardiac catheterization is rejected as irrelevant.

3. Paragraph 8 is accepted.

4. The second sentence of paragraph 9 is rejected as contrary to the

weight of credible evidence or an error of law, otherwise, the paragraph is

accepted.

5. Paragraph 10 is accepted.

6. Paragraphs 11 through 17 are accepted.

7. Paragraph 18 is rejected as conclusion of law, not fact.

8. Paragraphs 19 and 20 are accepted.

9. The first two sentences of paragraph 21 are accepted; the remainder

rejected as conclusion of law, not fact.

10. Paragraph 22 is rejected as comment or argument.

11. Paragraph 23 is accepted.

12. Paragraph 24 is rejected as argument, speculation, or irrelevant.

13. Paragraph 25 is accepted.

Rulings on the proposed findings of fact submitted by the Respondent, Miami

Heart:

1. Paragraphs 1 through 13 are accepted.

2. The first sentence of paragraph 14 is accepted; the remainder is

rejected as contrary to law or irrelevant since MS did not file in the batch

when it could have.

3. Paragraph 15 is accepted.

4. Paragraph 16 is accepted as the Agency's statement of its authority or

policy in this case, not fact.

5. Paragraphs 17 through 20 are accepted.

6. Paragraph 21 is rejected as irrelevant.

7. Paragraph 22 is rejected as irrelevant.

8. Paragraphs 23 through 35 are accepted.

9. Paragraph 36 is rejected as repetitive.

10. Paragraphs 37 through 40 are accepted.

11. Paragraph 41 is rejected as contrary to the weight of the credible

evidence to the extent that it concludes the distance to be one mile; evidence

deemed credible placed the distance at two miles.

12. Paragraphs 42 through 47 are accepted.

13. Paragraph 48 is rejected as comment.

14. Paragraphs 49 through 57 are accepted.

COPIES FURNISHED:

Tom Wallace, Assistant Director

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

Sam Power, Agency Clerk

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

R. Terry Rigsby

Geoffrey D. Smith

Wendy Delvecchio

Blank, Rigsby & Meenan, P.A.

204 S. Monroe Street

Tallahassee, Florida 32302

Lesley Mendelson

Senior Attorney

Agency for Health Care Administration

325 John Knox Road, Suite 301

Tallahassee, Florida 32303-4131

Stephen Ecenia

Rutledge, Ecenia, Underwood,

Purnell & Hoffman, P.A.

215 South Monroe Street

Suite 420

Tallahassee, Florida 32302-0551

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 10 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.