18-000075CON Florida Hospital Waterman, Inc., D/B/A Florida Hospital Waterman vs. Munroe Hma Hospital, Llc And Marion Community Hospital, Inc. Status: Closed Recommended Order on Wednesday, February 6, 2019.

Summary: Waterman Hosp., Lake Co., better for "needed" 12-bed CMR unit. Not normal circumstances proved need for two 12-bed CMR units, one in Lake Co and one in Marion Co. Not normal argument was not an application amendment.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COMMUNITY HOSPITAL, INC.,

d/b/a WEST MARION COMMUNITY

HOSPITAL AND OCALA REGIONAL

MEDICAL CENTER,

Petitioners,

vs. Case Nos. 18 - 0068CON

18 - 0075CON

AGENCY FOR HEALTH CARE

ADMINISTRATION AND FLORIDA

HOSPITAL WATERMAN, I NC., d/b/a

FLORIDA HOSPITAL WATERMAN,

Respondents.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings con ducted the final h earing

in this cause on June 18 through 22 and 25, 2018, in Tallahassee,

Florida.

APPEARANCES

For Petitioner s Marion Community Hospital, Inc. , d/b/a West

Marion Community Hospital and Oc ala Regional Medical

Center

Craig D. Miller, Esquire

J. Stephen Menton, Esquire

Rutledge Ecenia , P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

For Respondent Agency for Health Care Admi nistration

Richard Joseph Saliba, Esquire

Lindsey L. Miller - Hailey, Esquire

Agency for Health Care Administration

Mail Stop 7

2727 Mahan Drive

Tallahasse e, Florida 32308

For Respondent Florida Hospital Waterman , Inc., d/b/a

Florida Hospital Waterman

Stephen K. Boone, Esquire

Boone , Boone , Boone , and Koda , P.A.

1001 Avenida D el Circo

Post Office Box 1596

Venice, Florida 34284

Mia L. McKown, Esquire

Holland & Knight , LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

STATEMENT OF T HE ISSUE S

A. Should the Agency for Health Care Administration

(Agency) approve Certificate of Need (CON) Application No. 10499

of Marion Community Hospital, Inc. (Marion Community) , d/b/a West

Marion Community Hospital (West Marion), to add 12 comprehensi ve

medical rehabilitation (CMR) beds to its facility?

B. Should the Agency approve CON Application No. 10496 of

Florida Hospital Waterman , Inc. (Waterman) , to add 12 CMR beds to

its facility?

PRELIMINARY STATEMENT

West Marion and Waterman are acute care h ospitals located in

Agency Health Service Planning District 3. For the applicable

planning horizon, the Agency calculated a need for 12 new CMR

beds in District 3. West Marion and Waterman each would like to

add 12 CMR beds to their facility. They do no t oppose each other

adding beds. They agree that Ðnot normal circumstancesÑ

establish a need for at least 24 new CMR beds in District 3.

Each maintains that if only one may add CMR beds, it is the one.

The Agency approved WatermanÓs application and deni ed West

MarionÓs application . This proceeding followed.

At the hearing, West Marion presented the testimony of Chad

Christianson, Carrie Garay - Quirantes, Jeff Nasman, Gene Nelson,

and Katherine M. T. Platt. West Marion Exhibits 1 through 8, 12,

14, 17, 1 8, and 20 through 23 were accepted into evidence. After

the hearing, West Marion submitted the deposition transcript of

Cory Hewitt, which was admitted in lieu of live testimony as West

Marion Exhibit 35. On August 27, 2018, West Marion filed the

deposit ion transcript of James Duke, which was accepted as West

Marion Exhibit 25. The record was closed at this point.

Waterman presented the testimony of Abel Biri, Julian

Coomes, Tracey Estok, Mitchell Freed, David Levitt, and Michelle

Maes. Waterman Exhibit s 1, 3 through 9, and 11 were accepted

into evidence.

The Agency presented the test imony of Marisol Fitch. Agency

Exhibits 1 and 2 were admitted into evidence.

A T ranscript of the hearing was filed. The parties obtained

two extensions of the date for f iling proposed recommended

orders. West Marion and Waterman timely filed proposed

recommended orders. Waterman also filed a Memorandum of Law.

The Agency timely filed a Memorandum of Law. The undersigned has

considered the partiesÓ submissions in prepa ration of this

Recommended Order.

FINDING S OF FACT

Stipulations

1. There is a published need for 12 CMR beds in District 3.

2. Waterman is an existing licensed hospital that currently

operates a 269 - bed facility in Service District 3,

Sub - District 7, La ke County.

3. Ocala Regional Medical Center (Ocala Regional) is an

existing licensed hospital that operates a 222 - bed acute care

facility in S ervice District 3, Sub - District 4, Marion County.

4. West Marion is an existing licensed hospital that

currently operates a 138 - bed facility in District 3, Sub - District

4, Marion County.

5. Marion Community Hospital, Inc. , d/b/a Ocala Regional

Medical Center , is a verified Level II trauma center.

6. West Marion and Waterman satisfy the CON review criteria

regardin g the costs and methods of the proposed construction,

including the costs and methods of energy provision and the

availability of alternative, less costly, or more effective

methods of construction. § 408.035(1)(h), Fla . Stat . (2018). 1/

7. Schedules 1 th rough 10 of each hospitalÓs application

are reasonable.

8. West Marion and Waterman satisfy the CON application

review criteria regarding the immediate and long - term financial

feasibility of their proposals. § 408.035( 1 )(f), Fla. Stat.

Parties

The Age ncy

9. The Agency is the state agency charged with administering

the CON program. Section 408.034(1) , Florida Statutes authorizes

the Agency to evaluate CON applications.

West Marion

10. Marion Community owns West Marion and Ocala Regional.

Both are a cute care hospitals. Marion Community proposes to

establish a 12 - bed CMR unit at its W e st Marion campus. This is a

new service. West Marion and Ocala Regional operate using one tax

ID number and one Medicare billing number. One medical executive

commit tee governs the medical staff for both facilities. They

have the same Chief Executive Officer and Chief Financial Officer.

They have different physical facilities and locations. These

facilities, along with Summerfield freestanding emergency

department, operate as the Ocala Health System (Ocala Health).

11. Ocala Regional is located in Ocala, Marion County,

Florida. West Marion is also located in Ocala. West MarionÓs

primary service area is Marion County (Sub - District 4).

12. Ocala Health is a fast g rowing health system. It serves

a large geriatric (65 and older) population. West Marion and

Ocala Regional provide acute health care services to patients who

need CMR services.

13. Ocala Regional treats a more acutely ill patient

population. That pop ulation includes patients recovering from

bilateral joint replacements (replaci ng both knees at once) ;

patients recovering from trauma injuries, especially severe brain

and spinal cord injuries; and patients recovering from strokes.

14. Marion Community p lans to locate the CMR beds at West

Marion. West Marion is located on 50 acres that provide plenty of

space for the CMR unit and room for future growth. West Marion

should complete its most recent expansion by March 2019,

increasing its inventory of acut e care beds to 174.

15. West Marion plans to contract with Strive Physical

Therapy Centers (Strive) . Strive is the contracted p hysical

therapy, occupational therapy , and speech therapy provider for the

Ocala Health System, providing outpatient and inpati ent services.

It is a competent professional health care provider.

1 6 . West Marion operates a very busy orthopedic joint

replacement program that has become a destination center for total

joint replacement patients. The joint replacements conducted at

West Marion include many of the most complex types, including

bilateral replacements , revision replacements of joint

replacements, surgeries for severely overweight patients, and

surgeries for patients over the age of 85.

1 7 . Many of these patients requi re intensive and prolonged

rehabilitation. CMR services would benefit them greatly.

1 8 . This category of West MarionÓs patients experiences

problems accessing CMR services.

1 9 . Ocala Regional recently began a $64 million expansion

project. It includes the addition of 12 emergency department

beds, 34 additional beds at the hospital , two additional operating

rooms , and the infrastructure necessary for comprehensive stroke

center certification.

20 . Ocala Regional operates a Level II t rauma c enter.

Trauma service is a regional program. T he sweep of a 40 - mile

radius around the hospital circumscribe s Ocala Regional's trauma

service area . The area includes Marion, Citrus, and Hernando

Counties. It contains approximately one million people.

2 1 . Ocala Regi onalÓs trauma center is the fourth busiest

trauma center in Florida. Since opening in December 2012, the

trauma center has experienced a yearly growth rate of 11 percent.

This is greater growth than other Florida trauma centers, likely

the result of grow th in the size of the areaÓs geriatric

population. Members of that population are more prone to serious

injury in accidents. Ocala Regional Ó s Trauma Center treats

approximately 3,500 trauma patients a year.

2 2 . Ocala RegionalÓs high acuity trauma progra m cares for

patients with traumatic brain and spinal cord injuries. Ocala

Regional has a highly trained staff, including seven trauma

critical care physicians and three neurosurgeons, specializing in

treatment of traumatic brain injuries and severe spinal cord

injuries.

2 3 . Ocala Regional recently expanded its facility to include

a state of the art intensive care unit that will increase the

number of high acuity patients in need of CMR services.

2 4 . Sixty - five percent of Ocala Regional Ó s trauma patient s

come from Marion County. The rest come in roughly equal numbers

from Lake, Sumter, and Citrus C ounties. Ocala Regional is also a

receiving facility for trauma patients from The Villages Regional

Hospital in Sumter County, and for advanced trauma patien ts of

another area hospital, Munroe HMA Hospital, LLC , d/b/a Munr o e

Regional Medical Center . 2/

25 . Need for CMR services correlates naturally with the

provision of trauma services because trauma patients often require

intensive and prolonged rehabilitatio n therapies to return to

normal daily activities. These patients can benefit greatly from

the intensive rehabilitation services offered through CMR units.

2 6 . Ocala Regional also operates a certified primary stroke

center. It currently provides all trea tment modalities, with the

exception of interventional neurology. Ocala Health serves a high

volume of stroke patients, in part due to the large geriatric

population that it serves. As with trauma services, the elderly

are more likely to need CMR service s than the general population.

27 . Stroke patients are the biggest driver of CMR admissions

because a stroke patient requires the intensive, multi - discipline

therapies that CMR units provide. West Marion operates a primary

stroke center. Patients of thi s center also experience problems

accessing CMR services.

2 8 . Ocala Regional is in the final stages of obtaining

approval to operate as a comprehensive stroke center. This

provides care for patients suffering large vessel strokes, the

most serious sort.

2 9 . When a stroke patient meets the criteria for large -

vessel disease, a primary stroke center is not as good a treatment

option as a comprehensive stroke center, which is able to provide

necessary interventional neurology services.

30 . Comprehensive str oke patients are a primary driver for

the need for inpatient rehabilitation services . CMR services

benefit these patients by addressing immediate post - stroke

deficits such as aphasia, hemiparesis (weakness on one side of the

body), and cortical blindness. These patients will immediately

require the largest amount of CMR services.

3 1 . Certification of Ocala Regional as a comprehensive

stroke program will enable Ocala Regional to serve as the

comprehensive stroke program for Marion, Lake, Sumter , and Citru s

Counties, an area with a population of approximately one million

people. This will promptly drive an increased need for CMR

services not accounted for by the Agency rule. The Emergency

Medical Treatment and Labor Act requires that large vessel stroke

p atients be transported to a comprehensive stroke center.

3 2 . T he comprehensive stroke programs closest to Marion

County are located in Tampa, Gainesville , and North Florida. 3/

Once certified, Ocala Health will be the first and only

comprehensive stroke center in Ocala. The number of severe stroke

patients treated at Ocala Regional will rise and correspondingly

immediately increase the need for CMR beds in Marion County.

3 3 . The geriatric population is growing in District 3, in

general, and in Marion County specifically. This area also

experiences a s easonal influx of elderly when ÐsnowbirdsÑ come to

Florida during the winter. The geriatric population greatly

benefits from access to CMR services. It also generates an

increased need for CMR services.

3 4 . Access to CMR beds is a consideration for certification

as a trauma center and certification as a comprehensive stroke

program. This demonstrates a correlation between these programs

and a more robust need for CMR services. Ocala Health Ó s

significa nt programs in these vital service areas are a strong

consideration in favor of approving CMR services at West Marion.

The new CMR beds will ensure access to needed health care services

in the community.

3 5 . Ocala Regional is also developing a graduate m edical

education (GME) program for various disciplines. A GME program

typically increases the sub - specialties available at a hospital.

This in turn facilitates treatment of more complex cases and

patients more likely to need CMR services.

3 6 . Establishm ent of the GME program is helping transform

Ocala Regional into a tertiary facility serving the needs of

Marion, Lake, Sumter, and Citrus Counties . The GME program will

also improve services for trauma patients, complex cardiology

cases, and advanced neur osurgical cases. The corresponding

increase in patient acuity will bolster the need for CMR beds in a

manner which the need rule cannot anticipate.

3 7 . These patients will benefit greatly from sufficient and

timely access to CMR beds and the continuity o f care that

accompanies location of a CMR unit in conjunction with an acute

care hospital.

Waterman

3 8 . Waterman is a not - for - profit 269 Î bed acute care

hospital located in Tavares, Lake County, Florida, in the

southeastern corner of District 3. It ser ves residents of north,

central, and west Lake County. Waterman proposes to establish a

12 - bed CMR unit at its Tavares facility. Waterman accepts all

patients, regardless of their ability to pay.

3 9 . Waterman is part of the Florida Hospital System, whic h

has facilities on 23 campuses and serves communities throughout

Florida. Waterman is also part of the Adventist Health System.

The system owns a broad variety of health care facilities

including 42 hospitals in ten states.

40 . Waterman is opening a 60 - bed skilled nursing facility on

its campus. WatermanÓs new skilled nursing facility will provide

some rehabilitation services to patients discharged from the

hospital. The services, however, will not be an adequate

substitute for the more intense CMR services. This is also true

of home health services.

4 1 . Waterman is a tertiary level hospital. It serves a

large, fast - growing area. It is the busiest hospital in Lake

County as measured by emergency visits and discharges. Waterman

offers a wide arra y of high quality medical and surgical services.

They include an accredited cancer institute, open - heart surgery,

knee and hip replacements, extracorporeal membrane oxygenation,

and 24 - hour advanced emergency services. Waterman is also a

primary stroke c enter. It is not currently, and is not in the

process of becoming, a certified comprehensive stroke center.

Waterman is also not a designated trauma center.

4 2 . Waterman operates a robust outpatient rehabilitation

unit, the Florida Hospital Waterman Reh abilitation Institute

(Institute). The Institute provides a wide variety of treatments

and unique specialty care such as physical therapy, hand therapy,

speech therapy, language therapy, pelvic rehabilitation,

neurological therapy, amputee rehabilitation, orthopedics , and

sports medicine. Waterman CMR patients will benefit from

WatermanÓs use of the skills, caregivers, and experience of the

Institute in operating its CMR unit. The Florida Hospital system

operates several successful CMR programs. Waterma n Ós CMR services

will have the benefit of assistance from the administrators and

clinicians from these sister facilities as it develops,

implements, and operates its CMR unit. These resources require

finding that Waterman will more quickly bring enhanced quality of

care to the District.

4 3 . Waterman also operates a Home Care Agency. The agency

has provided home health care -- including physical, occupational,

and speech therapy services -- to residents of Lake County and the

surrounding areas since 197 7.

44 . Waterman has several expansion projects underway. A

related organization is building a 120 - bed nursing home on the

Waterman campus. Waterman is also completing a $75 million

capital improvement project that will increase the size of its

emergency department and will add a patient tower for pediatrics

and womenÓs services. Waterman plans to house the proposed CMR

unit in the tower.

4 5 . West Marion and Waterman are well - staffed , high - quality

hospitals, affiliated with high - quality health care syst ems. They

each provide their patients good care and are fully capable of

establishing and operating the CMR units for which they seek

certificate of need approval.

CON Regulation and Need

4 6 . Every six months the Agency publishes projected numeric

need for CMR beds in each health care planning district. Florida

Administrative Code Rule 59C - 1.039 regulates establishment of new

CMR services and the addition or construction of new CMR beds.

The AgencyÓs rule provides that a determination of need for CMR

beds Ðshall not normally be madeÑ unless the ruleÓs numeric

methodology calculates one.

4 7 . The rule establishes a simple formula for calculating

CMR bed need. The formula calculates the current utilization

ratio for CMR services in the district by div iding the number of

patient days reported for inpatient CMR beds and dividing it by

the district population for the same period. It then multiplies

the ratio times the projected population for the planning horizon,

five years into the future. The rule di vides that product by 365

times 85 percent. The rule specifies that 85 percent Ðequals the

desired average annual occupancy rate for [CMR] beds in the

district.Ñ

4 8 . This operation calculates the gross number of beds

needed for the district. T he rule su btracts the licensed and

approved CMR beds in the district from that number . The resulting

number is the net number of beds needed. The rule does not

account for markets in which patients needing CMR services receive

similar , but not equivalent, less int ense services from providers

such as home health agencies, skilled nursing homes, or acute care

hospitals without designated CMR beds, due to limited access to

CMR beds. It also looks back , not forward. The need methodology

promotes competition and acces s when the use rate in a service

area falls below the statewide average use rate.

4 9 . The need rule also provides that, regardless of whether

the formula shows need, Ðno additional [beds] shall normally be

approved unless the average annual occupancy rate of the beds in

the district was at least 80 percent for the 12 month period

ending six months prior to the beginning date of the quarter of

the publication of the Fixed Bed Need Pool.Ñ Fla. Admin. Code R.

59C - 1.039(5)(d).

50 . The AgencyÓs rule calculat ed a need for 12 new CMR beds

in District 3 for the January 2023 planning horizon. District 3

includes Alachua, Bradford, Citrus, Columbia, Dixie, Gilchrist,

Hamilton, Hernando, Lafayette, Lake, Levy, Marion, Putnam, Sumter,

Suwannee , and Union C ounties. The Agency had not published a need

for CMR beds in District 3 for many years. This is because

changes in CON regulation allowed existing providers to add beds

in ten - bed increments if they met a specific occupancy threshold.

In Ocala, HealthSouth Rehab ilitation Hospital (HealthSouth) did

this assiduously, effectively stifling what would otherwise have

been a natural progression of need pool determinations.

5 1 . West Marion and Waterman agree that Ðnot normal

circumstancesÑ establish a need for at least 12 CMR beds in

addition to the 12 generated by the numeric need formula. This is

an unusual CON case in this way. There is not a party arguing

that either application should be denied or offering evidence to

support d enial . This includes the Agency , whi ch offers only

technical legal arguments against approving both applications.

Effectively , the Agency implicit ly concedes the need for both

programs.

52. The AgencyÓs tacit concession that circumstances are not

normal in District 3 manifests in another w ay. T he Agency,

without comment or explanation, proposes approving a new 12 - bed

CMR unit. This is despite r ule 59C - 1.039(3)(c) , which states, ÐA

general hospital providing Comprehensive Medical Rehabilitation

Inpatient Services should normally have a min imum of 20

C omprehe n sive Medical Rehabilitation Inpatient beds.Ñ The

AgencyÓs proposed approval of a 12 - bed CMR unit confirms that

something is not normal in District 3 when it comes to CMR

services.

5 3 . Rule 59C - 1.039(5)(f)3. grants priority considerati on to

an applicant that is a designated trauma center as defined in

Florida Administrative Code Rule 64J - 2.011. West Marion claims

entitlement to a preference for trauma centers based upon the fact

that all of the Ocala Health system facilities operate un der the

same license. The facts do not support the argument. Although

Marion CommunityÓs hospital license is for all Marion Community

facilities, the trauma designation is for the Ocala Regional

facility , not the West Marion facility .

5 4 . A review of th e trauma center rule 64J - 2.011, including

an application that it incorporates by reference , makes clear that

the trauma center designation is for a facility not a system. For

instance, the Level II Trauma Center Application Manual (DH Form

2043 - A, January 2010) requires the following facility - specific

information: Recovery/Post - Anesthesia Care Unit; Trauma

Resuscitation Area; helicopter landing site; an immediately

available adequately staffed operating room for trauma patients 24

hours a day; a second ad equately staffed operation room available

within 30 minutes after the primary operating room is occupied; a

post - anesthesia recovery area; airway control and ventilation

equipment in the operating room; invasive hemodynamic monitoring

equipment; and a frac ture table. It is inconceivable that a

trauma center could satisfy these requirements by having some of

the facilities, such as the primary operating room, in one

location and other facilities, such as the backup operating room

or helicopter landing site, in another.

5 5 . This does not, however, mean that the presence of a

trauma center in the district is not relevant to considering the

need for CMRauma center patients have a greater and more

frequent need for CMR services than general acute care pati ents.

CON Applications

5 6 . The Agency maintains that the applications did not

present a Ðnot normal circumstancesÑ theory and that, therefore,

the parties cannot advance the theory at this point. The

applications, however, did.

5 7 . The applications of W est Marion and Waterman sought

approval relying upon arguments specific to their service areas

and facilities , as well as relying on the calculated need. The

arguments amount to claims that their projects should be approved

because of Ðnot normal circumst ances.Ñ In the context of the

application review and of this proceeding, each applicant had to

advance two theories. The first is why it should be selected to

satisfy the numeric need. The second is why, regardless of

calculated need, Ðnot normal circum stancesÑ call for approval of

the applicantÓs proposal. The facts and reasoning supporting each

argument are congruent if not identical. Consequently, there was

no need to label application assertions in the applications or

evidence at hearing as applyin g to one theory or the other.

5 8 . West MarionÓs CON application sought to fill the

12 - bed numeric need. It also relied upon Ðnot normal

circumstances Ñ for approval of its proposed 12 - bed unit.

5 9 . West MarionÓs application discusses the unavailabil ity

of CMR beds at HealthSouth, the countyÓs only CMR provider. It

reviews the fact that HealthSouth has operated at or near capacity

since opening, despite two ten - bed additions. Then West Marion

concludes, on page 18 of the application, ÐThis chronic

u navailability of inpatient beds at HealthSouth creates a severe

accessibility problem for the growing population of Marion County,

and constitutes a not normal circumstance. Ñ (WM Ex. 1, p. 22) 4/

(emphasis add ed).

60 . Another part of West MarionÓs appli cation discussing the

unavailability of beds at HealthSouth makes a similar assertion.

Page 52 of West MarionÓs application (WM Ex. 1, p. 55) states,

ÐThe chronic shortage of CMR beds in Marion County, especially

given the location at ORMC of a Level II t rauma center serving the

residents of TSA 6 (Marion, Citrus and Hernando counties), is a

not normal circumstance. Ñ (emphasis add ed).

61 . The same page of the application states that the

consistently high utilization of HealthSouth creates significant

diff iculty obtaining suitable CMR services for patients discharged

from Ocala HealthÓs trauma program.

6 2 . West MarionÓs application repeatedly notes that its

approval will not adversely affect existing providers or the

proposed Waterman CMR unit.

6 3 . Wate rmanÓs CON application sought to fill the 12 - bed

need calculated by the Agency. It also relied upon Ðnot normal

circumstances Ñ for approval of its proposed 12 - bed unit. The

statement on page 6 of the application (W H Ex. 1, p. 118) is

explicit. Ð[Waterma nÓs] proposal has been developed to respond to

the published numerical need for additional CMR services in

District 3, as well as health planning factors that exist even in

the absence of numerical need. The need for a CMR unit at

[Waterman] is based on a lack of accessible CMR services for

residents of Lake County that is evidenced by the following

facts . Ñ (emphasis add ed) . A list of seven factors follows ,

including that the Lake County population aged 65 or older is

increasing faster than the d istrictÓ s and the fact that approval

of beds for Waterman would not adversely affect existing

providers.

6 4 . Page 30 of WatermanÓs application (W H Ex. 1, p. 142)

repeats the assertion of Ðnot normal circumstances.Ñ It states,

Ð[Waterman] has developed this pro posal in response to the

published need for additional CMR beds in the District, as well as

facility and market - specific factors that clearly show the beds

should be located within Lake County and at [Waterman]. Ñ

(emphasis adde d) . WatermanÓs application continues the theme on

page 37 (Waterman Ex. 1, p. 149) asserting, Ðthere is a barrier to

accessibility of inpatient rehabilitation services for residents

of Lake County and those who are discharged from [Waterman] . Ñ

6 5 . West Marion committed to a minimum of seven percent of

its annual discharges being a combination of Medicaid, Medicaid

HMO, and self - pay/other (including charity) patients. This

commitment is consistent with its financial projections that show

8.89 percent of its first - year revenue/charge s attributed to

services for that population. It will enhance access to CMR

services.

6 6 . Waterman made no commitment to serve these populations.

WatermanÓs first - year financial projections show 5.3 percent of

revenue/charges attributed to services for that population.

CMR Services and District 3

6 7 . CMR services are provided to patients discharged from an

acute care hospital after treatment for an ailment or event that

requires substantial rehabilitation before the patient resumes

normal daily activiti es. For example, patients with complex

nursing or medical management needs or conditions such as spinal

cord injury, amputation, multiple sclerosis, hip fracture, brain

injury, and neurological disorders need CMR services. Fla. Admin.

Code R. 59C - 1.039(2 )(d). Patients recovering from an acute

episode such as a severe trauma injury or stroke and patients

recovering from complex orthopedic joint replacement surgeries

such as bilateral joint replacements and patients with a high body

mass index (BMI) recove ring from joint replacements also need CMR

services.

6 8 . The continuum of care for physical rehabilitation

services comprises a range of levels, depending primarily on

patient condition/goals, medical management requirements, and the

ability to participat e in therapy. Patients can receive physical

rehabilitation in an acute rehabilitation unit inside a hospital

or freestanding facility (a CMR u nit), a skilled nursing facility,

through a home health agency, or in an outpatient setting. CMR

units, which ar e at issue in this case, provide the most intense

level of rehabilitation.

6 9 . Determinations of whether a CMR admission is necessary

depend on whether the medical record demonstrates a reasonable

expectation that certain criteria are met at the time of a dmission

to a CMR unit. The criteria include : (1) requiring active and

continuing intervention of multiple therapy disciplines ( Physical

Therapy, Occupational Therapy, Speech - Language Pathology, or

prosthetics/orthotics ) , at least one of which must be PT or OT;

(2) requiring an intensive rehabilitation therapy program of three

hours of therapy per day at least five days per week; (3) having

an ability to actively participate in, and benefit significantly

from, an intensive rehabilitation therapy program; (4) requiring

supervision by a rehabilitation physician, with face - to - face

evaluations at least three days per week; and (5) requiring an

intensive and coordinated interdisciplinary team approach to the

delivery of rehabilitative care.

70 . Family support and involvement play a vital part in the

rehabilitation process. Family members are also part of the care -

giver team. Additionally, positive attitudes and reinforcement

from family members can inspire the patient and help her adapt to

new physical challe nges or limits. Finally, family members are

able to assist staff in motivating the patient and maintaining

communication between the patient and the rehabilitation team.

71 avel distance plays a significant role in an eligible

CMR patientÓs decision t o enter a CMR unit. Elderly patients

and/or their families often do not choose to travel far from their

home even though the patient needs the CMR services, because

travel places an unreasonable burden on patient s and their

famil ies .

7 2 . CMR facilities f ocus on speech, physical, and

occupational therapies. A CMR facility provides intensive therapy

on a frequent, consistent basis. This helps patients recover more

quickly than they would in another setting.

7 3 . The F ederal Center for Medicare and Medic aid Services

( Ð CMS Ñ ) establishes the requirements for CMR facilities, which are

designated b y CMS as Ð inpat ient rehabilitation facilities.Ñ CMR

facilities are also sometimes referred to as acute rehabilitation

facilities.

7 4 . HealthSouth is the only CMR provider in Marion County in

District 3. Lake County does not have a CMR provider. There was

a CMR unit located at Leesburg Regional Hospital North in Lake

County until July 1, 2016. That facility closed. The CMR beds

from the Leesburg facility were tr ansferred to The Villages, which

is located in Sumter County. The evidence is insufficient to

establish the reason for this.

7 5 . HealthSouth is the closest CMR provider to West Marion

and Ocala Health. It is a stand - alone CMR facility in Ocala. The

fac ility has been authorized to add ten more beds. The record is

silent on when the beds will be added. HealthSouth opened in 2011

with 40 beds and has grown to 60 beds in ten - bed increments.

Since 2012, HealthSouth has maintained an occupancy rate of

90 percent or higher. Despite its incremental growth, HealthSouth

has not had sufficient available beds to meet the needs of

patients from Ocala Health and West Marion or the district in

general.

7 6 . District 3Ós CMR occupancy rate is 86.5 percent. This

is the highest rate for any district and is above the 85 percent

that Agency rule establishes as the desired occupancy rate.

7 7 . All clinicians and experts in this case agree that

rehabilitation services at skilled nursing facilities, long - term

acute care hospitals, and home with home health care are not

acceptable alternatives to CMR. They also agree that patient

outcomes in those settings are not as good , since th o se settings

simply do not provide the same level of care as a CMR unit.

Access Problems

7 8 . There is no legal mandate requiring a licensed facility

to accept CMR patients. A CMR facility may refuse any patient

that it wishes. This means that HealthSouth can cherry - pick

patients based on the most desirable payor source, leaving

patients with less desirable payment providers, such as Medicaid,

without access to CMR services. HealthSouth has demonstrated a

preference for certain pay o rs (including Medicare - eligible

patients, patients with commercial insurance including some Blue

Cross policies). It typically does not accept Medicaid or charity

care patients. Ocala Health providers often do not even try to

refer a Medicaid or charity care patient to HealthSouth because,

based on experience, staff expects that HealthSouth will not admit

those pat ients.

79 . HealthSouth frequently refuses to accept patients

discharged from Ocala Health who qualify for CMR services under

the CMS guidelines, including trauma, stroke , and complex

orthopedic joint replacement patients. A large number of the

patients t hat Ocala Health refer s to HealthSouth each month are

not accepted and are not able to receive CMR services that would

improve their outcomes.

8 0 . HealthSouth Ó s admissions practices leave many Ocala

Health patients needing CMR services without access to t hem. This

vitiates consideration of HealthSouth as a reason to not add CMR

beds in Marion County and District 3.

81 . There is a large unmet need for additional CMR beds to

serve Ocala Health p atients and other district residents.

8 2 . Some patients rejec ted by HealthSouth are admitted to

skilled nursing facilities in Marion County. For patients needing

CMR services, those facilities, although they provide some

rehabilitative care, are not the correct solution. For example,

treatment of the large vessel stroke patients, which Ocala

Health Ó s comprehensive stroke center will serve, at a skilled

nursing facility is not appropriate. Similarly, a skilled nursing

facility would not meet the CMR needs other higher acuity

patients , like bilateral transplant pati ents, the multidiscipline,

intensive three hours a day therapy that a CMR facility provides.

8 3 . A skilled nursing facility provides rehabilitat ion

services for approximately one to one and a half hours daily.

This can result in a longer recovery time fo r high acuity

patients. A skilled nursing facility is geared more toward

patients with a simple hip fracture. Patients with more complex

issues like bilateral joint replacements and spinal cord injuries

need more.

8 4 . In a CMR facility, the patient sees a physician every

day. In a skilled nursing facility, a patient usually sees a

phy sician once a month. A skilled nursing facility is not optimal

for higher acuity acute patients. However, due to the utilization

and admission practices of HealthSouth, p atients who need CMR

services are often treated in skilled nursing facilities. This

unusual circumstance causes the CMR need formula to under -

calculate District 3Ós need for CMR beds since the se skilled

nursing patients are not taken into consideration, w hereas they

would be if they were being treated in a CMR unit, as they should

be.

8 5 . HealthSouth admission practices, consistently high

occupancy rates, and delays in responding to referrals result in

many patients who are ready for discharge with a phys ician order

for CMR services, languishing in acute care beds at Ocala Regional

or West Marion for longer lengths of stay or forc e the patients to

travel to a CMR facility further from the patient's home and

support system.

8 6 . These problems can negativel y affect patient outcomes

because the sooner patients star t ambulating and leave an acute

care facility, the less chance they have of suffering

complications.

8 7 . When a patient cannot gain admission into a CMR facility

and remains in an acute care bed, the patient is not receiving the

needed CMR services ordered by the physician. This can cause a

decline in their ability to benefit from therapy or an avoidably

prolonged recovery.

8 8 . Because many of District 3 patients are elderly, their

stay in a CM R facility, if and when they are admitted, ends up

being longer than it would have been if they were more promptly

placed.

8 9 . Younger patients also suffer from the lack of timely

access to CMR. For example, a younger patient suffering from

paralysis who has to remain in the hospital would benefit from

approval of both application s because the patient will receive

more therapy and opportunities for family support. While the

hospital provides rehabilitative therapies in the acute care

hospital setting, th ose services are provided at bedside and are

limited in time and intensity compared to what a patient would

receive in a CMR unit.

90 . The difficulty and delays in transferring patients to

appropriate rehabilitation facilities cause Ocala Health hospital s

to have a length of stay that is greater by a day or a day and a

half than other trauma centers.

9 1 . The lack of availability of access to CMR services and

the lack of timely access to CMR services negatively affects the

Marion Community hospitals and their patientsÓ access to necessary

services. When a patient is ready for discharge but has to remain

in an acute care bed due to lack of availability of CMR beds, the

availability of an acute care bed for a new acute care patient is

reduced. This can r e sult in the hospital going on Ðbypass,Ñ

meaning no new patients are taken in through the emergency room.

9 2 . In District 3 during the 12 - month period ending

December 31, 2016, six facilities with 202 licensed CMR beds

served the entire district. The f acilities are UF Health Shands

Rehab Hospital, Seven Rivers Regional Medical Center (now closed),

HealthSouth Rehab ilitation Hospital of Spring Hill, Leesburg

Rehabilitation Hospital, The Villages Regional Hospital (The

Villages), and the HealthSouth facil ity . The District 3 beds are

located in Marion, Sumter, Hernando, and Alachua C ounties. None

are in Lake County.

9 3 . These facilities experienced an 84.15 percent

utilization rate. This is only .85 percent less than the AgencyÓs

desired annual occupanc y rate and is nearly five percent greater

than the 80 - percent occupancy rate the AgencyÓs rule sets as a

trigger for approving additional beds. Fla. Admin. Code R. 59C -

1.039(5)(d). This was the highest CMR occupancy rate in the

state. The statewide aver age CMR occupancy rate was 69.61

percent. These circumstances are not normal.

9 4 . The portion of CMR discharges covered under traditional

Medicare or m anaged Medicare in District 3 is also significantly

higher than the state average. This is reasonable since 27.2

percent of District 3 Ó s population is 65 and older, while just

20.1 percent of the statewide population is 65 or older.

9 5 . In 2016, 74.1 percent of the statewide CMR discharges

were covered under traditional or managed Medicare. For

District 3 , the number was nearly 81 percent.

9 6 . Lake County has no CMR services, even though it is the

second largest population center in the d istrict.

9 7 . Waterman is located a significant distance from the CMR

providers in District 3. The closure and trans fer of beds from

Leesburg Regional Medical CenterÓs CMR unit to The Villages in

Sumter County increased the travel time to CMR services for

residents of the area. The Villages is still the closest CMR

provider to Waterman, but travel from Waterman to The Villages can

take 38 minutes to over an hour depending upon traffic and time of

year. All other CMR providers are over an hour away, limiting

access to CMR services.

9 8 . ÐConversion rateÑ is the percentage of acute care

patients that are discharged to a CMR provider. Analysis of the

conversion rate of acute care patients discharged to CMR for both

Lake County and Waterman also indicates that the population Ós

access to CMR services is limited. The district and state

conversio n rate to CMR is approximatel y two percent. The 2016

rate for Hernando County was 4.1 percent. The rate for Marion

County of 2.6 percent was just over the district average. Lake

CountyÓs rate is 1.5 percent, and WatermanÓs is .4 percent. This

analysis demonstrates limited access t o CMR services for Lake

County residents and residents of WatermanÓs service area. The

record offers no other explanation.

9 9 . The analysis of discharges to CMR beds confirms the

analysis. So does physician experience.

100 . Like Marion County, Lake Cou nty has a rapidly aging and

growing population . As a result, there are many Waterman service

area and Lake County residents who are appropriate for and could

benefit from CMR, but are not accessing these services due to

travel and distance constraints.

10 1 . The demographic and utilization data presented in this

case demonstrate that there is a lack of accessible CMR services

for residents in District 3 generally, and in Marion County and

Lake County specifically. During the most recent reporting period

( 12 months ending on December 31, 2016), the average annual

District 3 occupancy rate for the 202 CMR beds was 84.15 percent.

Existing CMR services are clustered in just a few areas of this

16 - county district.

10 2 . Patients of both applicants suffer from limitations on

access to CMR services.

CONCLUSIONS OF LAW

10 3 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

consolidated cases. §§ 120.569, 120.57(1), and 408.039, Fla.

Stat.

10 4 . Each applica nt has standing to participate in this

proceeding. § 408.039(5)(c), Fla. Stat.

10 5 . Sections 408.035, 408.037 , and 408.039 and Florida

Administrative Code Rules 59C - 1.008, 59C - 1.030, and 59C - 1.039

establish the governing review criteria and procedures. The award

of a CON must be based on a balanced consideration of the

applicable statutory and rule criteria. Balsam v. DepÓt of H ealth

and Rehab. Servs. , 486 So. 2d 1341 (Fla. 1st DCA 1986). The

appropriate weight to give each criterion is not fixed. It varies

based upon the facts of the case. See, e .g. , Morton F. Plant

Hosp. AssÓn, Inc. v. DepÓt of H ealth and Rehab. Servs. , 491 So. 2d

586, 589 (Fla. 1st DCA 1986) (quoting North Ridge Gen. Hosp., Inc.

v. NME Hosp., Inc. , 478 So. 2d 1138, 1139 (Fla. 1st D CA 1985));

Collier Med. Ctr., Inc. v. DepÓt of H ealth and Rehab. Servs. , 462

So. 2d 83, 84 (Fla. 1st DCA 1986).

10 6 . A CON applicant must prove by a preponderance of the

evidence that its CON application should be approved. See , e.g. ,

Boca Raton Artifici al Kidney Ctr., Inc. v. DepÓt of H ealth and

Rehab. Servs. , 475 So. 2d 260, 263 (Fla. 1st DCA 1985);

§ 120.57(1)(j), Fla. Stat.

10 7 . An administrative hearing involving disputed issues of

material fact is a de novo proceeding in which the Administrative

L aw Judge independently evaluates the evidence presented. Fla.

DepÓt of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla.

1st DCA 1981); £ 120.57(1), Fla. Stat. The AgencyÓs preliminary

decision and its findings in the St ate Agency Action Report (SAA R)

are not entitled to a presumption of correctness.

Application Content

10 8 . West Marion and Watermark satisfy the application

content requirements of section 408.037 a nd r ule 59C - 1.039.

Section 408.035(l)(b) - The availability, quality of

care, accessib ility, and extent of utilization of

existing health care facilities and health services in

the service district of the applicant.

10 9 . Both applicants proved that there is a lack of

accessibility to CMR beds for patients from their respective

service are a due to Ðnot normal circumstances,Ñ including the

extremely high utilization rate of CMR beds in District 3 which

results in patients needing CMR services receiving some

rehabilitation services in skilled nursing units or at home with

the assistance of ho me health providers. Both, in fact, presented

persuasive evidence that discharges from each hospital alone would

generate most of the projected utilization for each applicantÓs

proposed unit.

Section 408.035(1)(e) - The extent to which the proposed

servi ces will enhance access to health care for

residents of the service district.

1 10 . Rule 59C - 1.039(6) says that CMR services should be

available within a maximum ground travel time of two hours under

average travel conditions for at least 90 percent of th e

districtÓs population. Existing facilities satisfy this minimum

standard. The evidence proved, however, that existing CMR

facilities are not as a practical matter providing full

accessibility due to abnormally high utilization , selective

admission crit eria, patient resistan ce to travel , and travel

limitations on friends and family. West Marion and Waterman will

both enhance access to residents in their respective service

areas. There will be no adverse effect to either facility if both

CON a pplication s are approved. There is also no persuasive

evidence that approval of both applications would have an adverse

impact on existing providers in the district.

Section 408.035(l)(i) - The applicant's past and

proposed provisions of health care services to Med icaid

patients and the medically indigent.

1 11 . Both applicants demonstrated that they provide services

to Medicaid patients and the medically indigent. West Marion,

however, offers to condition its CON on a requirement that Ð a

minimum of 7% of the pati ents in the CMR Unit would be some

combination of Medicaid, as well as self - pay. Ñ It also projects

serving more Medicaid and self - pay/charity patients than Waterman.

Thus, West Marion demonstrates a stronger commitment to serving

the Medicaid/ c harity c ar e population. Approval of its application

will substantially improve access to CMR services for Medicaid,

indigent, and self - pay patients.

Summary Comparison

11 2 . The Findings of Fact establish that West Marion and

Waterman satisfy the criteria of the g overning statutes and rules.

Either could be approved for the 12 CMR beds for which the Agency

published a need. Waterman and West Marion both present sound

proposals .

11 3 . The persuasive and essentially unrebutted evidence also

proves Ðnot normal circu mstancesÑ supporting approval of at least

12 CMR beds in addition to the 12 for which the Agency calculated

a need. The applicants serve different market s. Approval of two

programs will not adversely affect either applicant. However, a

comparative revie w of the two proposals requires a conclusion

that , for two reasons , Waterman is the better choice to fill the

calculated need.

11 4 . First, the access limitations faced by the patients

that Waterman serves are more severe than those faced by West

MarionÓ s patients. Consequently, Waterman will enhance health

care access to a gre ater extent than West Marion.

§ 408.035(1)(e) , Fla. Stat .

11 5 . Second, the resources available to Waterman due to its

outpatient rehabilitation unit, the Florida Hospital Waterm an

Rehabilitation Institute, buttressed by the resources offered by

the Florida Hospital System are superior to those availabl e to

West Marion. § 408.035(1)(d), Fla. Stat. This is in no way,

however, a conclusion that West Marion does not have adequate

r esources to successfully open and operate its proposed CMR unit.

Approval of Two CONs

11 6 . The Agency opposes approving either application on Ðnot

normal circumstancesÑ grounds. It is worth noting again that the

Agency did not present a factual case to support its argument,

only legal theories. The Agency offers three arguments to support

its position. The first is that the applicants did not seek

approval based upon Ðnot normal circumstances.Ñ The second is

that the applications did not comply with the requirements of r ule

59C - 1.008(2)(d). The third is that seeking approval on a Ð not

normal circumstancesÑ theory in this proceeding amounts to an

impermissible amendment to the application. This argument

subsumes the first argument.

11 7 . The record a nd the findings based upon it show that

both applicants incorporated a Ðnot normal circumstancesÑ theory

into their applications. For this reason, the impermissible

amendment argument fails. The Agency cites Community Hospice of

Northeast Florida, Inc. v . Agency for Health Care Administration ,

Case No. 10 - 1865CON (Fla. DOAH March 22, 2011; Fla. AHCA May 1,

2011) to support its argument. The facts of that case differ from

the facts of this case. In Community Hospice , one of the

applicants, United Hospice of Florida, Inc., raised a new theory

for approval of its application. It argued that a second hospice

program should be approved, in addition to the one for which the

Agency had calculated a need, because of low utilization by

minorities and because the need projections showed a very large

number of new admissions to hospice programs.

11 8 . The O rder explained why this was a new theory, a new

proposal, and, therefore, an impermissible amendment.

This change is so material that it amounts to

an impermissi ble amendment under Manor Care,

Inc. v. Department of Health and

Rehabilitative Services . The theory requires

a different analysis of all the information

provided in the applications, an analysis that

neither the applicants nor the Agency

conducted during the initial review. The

applications only provided information about

how to best fill the projected need for one

program. The applications contain no

information or analysis about what the effect

of approving two new programs would be on

existing provid ers. The applications contain

no information about what utilization each

program could expect if two programs are

approved or what the effect of that

utilization would be on the existing provider

and the other applicant. In short the new

theory materiall y changes the United proposal.

11 9 . This case is different. There are no material

differences between the information and arguments that West Marion

and Waterman made in their applications and those presented in the

hearing. The applications provided i nformation specific to each

facility and to its patient population and service area to support

approval. The applications specifically said that approval of

programs at either or both facilities would not affect utilization

of the other proposed program o r existing providers. Comments in

the SAAR reveal that the Agency gleaned that the applicants relied

upon their institution - specific and market - specific need as well

as the calculated need.

120. Page 20 of the SAAR notes that WatermanÓs application

Ðdi scusses institution - specific need for CMR beds.Ñ Page 51 of

the SAAR observes that West Marion Ðanticipates additional bed

need to address availability and accessibility problems due to

overutilization.Ñ On the same page, the SAAR recognizes the

institut ion - specific and market - specific nature of West MarionÓs

proposal: ÐWMCH contends that the general shortage of CMR beds in

District 3, specifically Marion County, justifies approval of the

proposed program.Ñ

1 21 . The same distinction applies to North Bro ward Hospital

District , d/b/a Broward Health Medical Center v. Agency for Health

Care Administration , Case No. 15 - 5549CON (Fla. DOAH May 4, 2016;

Fla. AHCA June 2, 2016), also relied upon by the Agency. The

applicant there proposed one kidney transplant p rogram in its

application and two at the hearing.

122 . West Marion and Waterman have done nothing similar in

this proceeding . Both seek to fill the calculated need. Both

also argue that institution - specific and county - specific factors

support granting them CMR beds. The same facts support both

theories. Neither applicant has amended its proposal.

123 . The Agency maintains that r ule 59C - 1.008(2)(d)

prohibits seeking approval of beds on Ðnot normal circumstancesÑ

grounds for a project seeking the same number of beds as the

number projected by the Agency. The rule does not say that. It

states:

(d) The Agency will follow these procedures

when awarding beds or services identified in a

Fixed Need Pool:

1. Beds or services will be awarded based on

the a vailability of a qualified applicant and

proposed project which meets statutory review

criteria.

2. In the absence of a qualified applicant

and a project which meets statutory review

criteria, the Agency may elect not to approve

any applications for beds or services.

3. If a qualified applicant exists but the

proposed project exceeds the beds or services

identified in the Fixed Need Pool, the Agency

may award beds or services in excess of the

pool when warranted by special circumstances

as defined in th e applicable section of

Chapter 59C - 1, F.A.C., for the particular type

of bed or service.

12 4 . The AgencyÓs theory is that it does not have authority

to approve the two applications here on the basis of Ðnot normal

circumstances,Ñ because neither applica tion is in excess of the

fixed need pool. The theory fails first because of the lack of a

factual premise. As discussed above , both applicants sought

approval on grounds other than the fixed need pool . This

necessarily means their proposed projects exce eded the fixed need

pool.

12 5 . The theory fails second because under the theory if

either applicant sought 13 beds the Agency could approve the

application, but it cannot since each applicant sought 12. The

theory violates the common sense interpretati on principle.

Cf. Sch. Bd. v. Survivors Charter Schs., Inc. , 3 So. 3d 1220, 1235

(Fla. 2009) (Ð We are not required to abandon either our common

sense or principles of logic in statutory interpretation.Ñ) .

12 6 . Third, the theory is contrary to previous Agency

decisions where the Agency has awarded multiple CONS based on not

normal circumstances, even though there was no publication of

need. See HealthSouth Reha b. Hosp . of Seminole Cty. LLC v. A gency

for Health Care Admin. , Case No. 12 - 0425CON ( Fla. AHC A May 11,

2012)(adopting settlement agreement permitting a 50 - bed CMR

hospital based on not normal circumstances) 5/ ; Osceola Reg Ó l Hosp .

Inc. , d/b/a Osceola Reg Ól Med . Ctr . v. A g . for Health Care Admin. ,

Case No. 15 - 38 31 CON ( Fla. DOAH Mar . 22, 2016, Fla. A HCA

Apr. 14, 2016) (approving through settlement agreement two CONs for

CMR beds based on a showing of not normal circumstances) 6/ ; see

also Fla. Admin. Code R. 59C - 1.008(2)(d)3.

12 7 . The Agency does not identify a f inal o rder or court

opinion establish ing the interpretation that it advocates. The

Agency does cite a number of cases expressing the principle of

deference to Agency interpretations. The adoption of Article XI,

section 5(e) to the Florida Constitution casts doubt on the

persuasiveness of th at argument. In any event, the AgencyÓs

interpretation of the rule is not reasonable or consistent with

other parts of the same rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that :

A. The Agency for Health Care Administration render a f inal

o rder granting Florida Hospital Waterman, Inc., d/b/a Florida

Hospital Waterman, a Certificate of Need to establish 12

Comprehensive Medical Rehabilitation Beds.

B. The Agency for Health Care Administration rende r a f inal

o rder granting Marion Community Hospital, Inc., d/b/a West Marion

Community Hospital and Ocala Regional Medical Center, a

Certificate of Need to establish 12 Comprehensive Medical

Rehabilitation Beds.

DONE AND ENTERED this 6 th day of February , 20 19 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6 th day of February , 2019 .

ENDNOTES

1/ All citations to Florida Statutes are to the 2018 codification

unless otherwise noted.

2/ Munroe HMA Hospital applied for the 12 CMR beds also and

challenged its denial. But it has been dismissed from this

proceeding.

3/ This is a reference to a geographic are a not a specific

location or facility although the record leaves the impression

that the r eference is to Jacksonville, Florida.

4/ ÐWMÑ refers to West Marion Exhibits. ÐWHÑ refers to Waterman

Hospital exhibits.

5/ See Case No. 12 - 0425CON, Petition for Formal Administrative

Hearing , filed January 12, 2012.

6/ See Case No. 15 - 3831CON, Peti tion for Formal Administrative

Hearing , filed July 2, 2015.

COPIES FURNISHED:

Mia L. McKown, Esquire

Holland & Knight LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Kevin Michael Marker, Esquire

Agency for Health Care Admi nistration

Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Lindsey L. Miller - Hailey, Esquire

Agency for Health Care Administration

Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Richard Joseph Saliba, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Stephen A. Ecenia, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

David Mark Maloney, Esquire

Rutledge Ecenia P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Craig D. Miller, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

J. Stephen Menton, Esqui re

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Stephen K. Boone, Esquire

Boone, Boone, Boone, and Koda, P.A.

1001 Avenida Del Circo

Post Office Box 1596

Venice, Florida 34284

(eServed)

Tiffany A. Roddenb erry, Esquire

Holland & Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Richard J. Shoop , Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew , Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stefan Grow , General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eSer ved)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.