90-003576CON Sacred Heart Hospital Of Pensacola vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, April 3, 1991.

Summary: Establishment of radiation therapy is new institutional health service or substantial change which therefore requires full CON review re: sec.3811.706

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SACRED HEART HOSPITAL OF )

PENSACOLA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3576

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

and )

)

BAPTIST HOSPITAL, )

)

Intervenor. )

____________________________)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael

Ruff duly designated hearing officer of the Division of Administrative Hearings

on December 10-11, 1990 in Tallahassee, Florida. The appearances were as

follows:

APPEARANCES

For Petitioner: Karen O. Emmanuel, Esquire

Emmanuel, Sheppard and Condon

30 South Spring Street

Post Office Drawer 1271

Pensacola, Florida 32596

For Respondent: Richard A. Patterson, Esquire

Department of Health and

Rehabilitative Services

Fort Knox Executive Center

2727 Mahan Drive, Room 103

Tallahassee, Florida 32301

For Intervenor: Steven A. Ecenia, Esquire

Katz, Kutter, Haigler, Alderman,

Davis, Marks and Rutledge, P.A.

First Florida Bank Building

215 South Monroe Street, Suite 400

Post Office Box 1877

Tallahassee, Florida 32302-1877

STATEMENT OF THE ISSUES

This is a bifurcated proceeding in which the sole issue before the hearing

officer at this present stage of the proceeding concerns whether the

construction of a radiation therapy center and the institution of Radiation

Therapy Medical Services by Sacred Heart Hospital should be considered a "new

institutional health service" pursuant to Section 381.706(1)(h), Florida

Statutes, as that relates to the right of Baptist Hospital to intervene in this

proceeding. If the project is deemed to be merely a capital expenditure of a

million dollars or more and reviewable only for that reason pursuant to Section

381.706(1)(c), Florida Statutes, then the Intervenor would have no standing as

stated in Section 381.709(5)(b), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the application by Sacred Heart Hospital of Pensacola

for a certificate of need to institute radiation therapy services and construct

a radiation therapy facility at its campus in Pensacola, Florida. The proposed

radiation center would serve both inpatients and outpatients. The total project

costs proposed were estimated to be approximately 3.7 million dollars. In its

application Sacred Heart alleged that the radiation therapy center would be an

extension of the hospital's existing oncology program and would not constitute a

"new service" as defined in Chapter 10-5, Florida Administrative Code. The

Department took the position that the project was reviewable under Section

381.706(1)(c), Florida Statutes only as a capital expenditure. It took the

position that the institution of radiation oncology services was not the

establishment of a new institutional health service or a substantial change in

health services but rather the project was reviewable only because the

construction cost portion of it exceeded a million dollars as a capital

expenditure. Accordingly the cause proceeded to hearing only on the above

stated issue with the remainder of the proceeding abated until this issue was

decided and the standing of Baptist Hospital to intervene and oppose the

application was determined.

The cause came on for hearing as noticed. At the hearing the Petitioner

and CON applicant, Sacred Heart Hospital (Sacred Heart) called Nora Bailey, its

vice-president for planning, as an expert witness in the area of health planning

in which she was accepted. Sacred Heart also called Carlos A. Perez, M.D. who

was accepted as an expert witness in the area of radiation oncology. Sacred

Heart's exhibits 1, 2, 6, 7, 8, 10, 11, 12, and 15 were accepted into evidence.

The Respondent Department called as its witness Elizabeth Dudek, acting director

of the Office of Community Medical Facilities. She was accepted as an expert

witness in the area of health planning. The Intervenor, Baptist Hospital,

called Michael Carroll, accepted as an expert witness in the field of health

planning, and L. Rodney Cook, M.D., accepted as an expert witness in radiation

oncology. The Intervenor's exhibits 1 through 4 were received into evidence.

At the conclusion of the proceedings the parties ordered transcript thereof and

requested an extended briefing schedule by agreement. That request was granted

and the parties timely filed proposed findings of fact and conclusions of law in

the form of proposed recommended orders. Those proposed findings of fact have

been treated in this recommended order and are specifically ruled upon in the

appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. Radiation oncology is a therapeutic process in which external radiation

beams are utilized to treat cancerous tumors to effect a cure or a palliation.

Radiation therapy is provided by board certified radiation oncologists in

specialized facilities which house radioactive materials and specialized

equipment, such as linear accelerators. The provision of radiation therapy

requires specialized medical personnel such as technicians certified to operate

linear accelerators to provide radiation treatments, as well as physicians and

dosimetrists to calibrate machines and insure that radiation treatments are

properly delivered.

2. Radiation therapy is a medical specialty which deals with the

utilization of radiation for the treatment of cancerous tumors and sometimes

benign diseases. Radiation oncology or radiation therapy involves the use of

consultative services, the knowledge of clinical, biological and pathological

characteristics of the disease process, the evaluation of patients, the

localization of tumors, the planning of radiation, the delivery of radiation

treatments, and subsequent evaluation of the effects of treatment on the tumor

and the patient.

3. Sacred Heart provides cancer therapy through surgery and medical

oncology. The various aspects of those cancer treatment services do not include

the provision of radiation therapy, although in the past, in several isolated

instances, radiation oncology trained physicians have provided brachytherapy

involving the implanting of radioactive materials in the tissues or body

cavities of the patients involved. These instances did not involve a regular

program of radiation therapy provided by Sacred Heart, however, and in the

typical instance, any cancer patients needing radiation therapy, including

brachytherapy, are and have been referred out to facilities offering such

services, including the Intervenor. The present cancer therapy services offered

by Sacred Heart are delineated on pages 55-60 of the transcript of this

proceeding.

4. Sacred Heart filed an application for a certificate of need (CON) for a

radiation therapy center on its campus to serve inpatients and outpatients. The

total project costs for constructing the building and equipping as a radiation

therapy center is estimated to be approximately 3.7 million dollars. The

applicant proposes that the radiation therapy center would be an adjunct or

extension of the hospital's existing oncology program and would not constitute a

"new service" as defined in Chapter 10-5, Florida Administrative Code. The

Department also takes the position that the initiation of radiation oncology or

therapy services is not the establishment of a "new institutional health

service" or a "substantial change" in health services. The Department takes the

position that the project and application is reviewable only for the

construction costs portion of the project as a capital expenditure in excess of

one million dollars. HRS maintained at hearing that it has consistently taken

the position that radiation therapy is not considered to be a new inpatient

institutional health service pursuant to subsections 381.702(8)(13), Florida

Statutes (1989). The Department's representative who testified was unable to

explicate the reason for the alleged determination by the Department that

radiation therapy is not a new institutional health service. She was unable to

relate when such a supposed policy of treating radiation therapy only as a

capital expenditure was adopted by the Department. It is noteworthy when

reviewing her testimony, appearing at page 88 through 126 of the transcript of

this proceeding, that repeated references are made by the HRS witness, the

overall tenor or theme of which is that the purchase of linear accelerators is

not regarded as the effectuation of a new institutional health service according

to her view of the Department's policy regarding radiation therapy. Thus it may

be that the Department views the addition of radiation therapy as involving

simply the purchase of capital equipment, i.e., a linear accelerator. The

evidence reflects otherwise however. The institution of radiation therapy at a

hospital involves much more than the mere purchase of a linear accelerator

device. It involves the purchase of the accelerator, the construction of a

shielded space or building in which to house it and operate it, the employment

of physicists, dosemetrists, qualified radiation therapy oncologists, and even

the institution of a machine shop to make repairs and repair parts. The

institution of radiation therapy at a hospital involves much more than the mere

purchase and installation of a linear accelerator and the instant application

seeks to institute such a comprehensive therapy service and not merely the

capital expenditure required to purchase a linear accelerator solely. Thus, the

Department's purported policy of viewing the institution of radiation therapy

service as merely a capital expenditure (if, indeed, a policy, which was not

proven in this case) is misplaced because the evidence in this record reveals

that institution of radiation therapy at a hospital involves much more in the

way of equipment and services than the mere purchase and capital expenditure

related to acquisition of a linear accelerator.

5. The Department has reserved Rule 10-5.011(1)(g), Florida Administrative

Code, for a radiation therapy methodology. The remainder of that rule contains

methodologies reserved for other services which HRS regulates as new

institutional health services as well. These include such services as medicare,

certified home health agencies, cardiac catheterization programs, and open heart

surgery services. The reservation of a radiation therapy methodology in the

rules is significant because of its indication of what the Department's intent

with regard to the regulation of this service is or might be, because the

Department has deleted references in its rules to reservations for services it

has since chosen to deregulate, such as computerized tomography and chronic

renal dialysis (see former Rules 10-5.011(1)(c) and (1)(h). The elimination of

these rule reservations was published in the Florida Administrative Weekly, Vol.

15, No. 27, July 7, 1989.

6. The Department in the past has had a rule governing need methodology

for radiation therapy services. That rule was in effect until late in 1985 when

it was invalidated in a 120.56 Florida Statutes rule challenge proceeding in

South Miami Hospital v. Department of Health and Rehabilitative Services, 7 FALR

5491 (DOAH Nov. 1985). After that rule methodology for radiation therapy

services was invalidated, the Department's witness in this proceeding, in her

supervisory capacity, signed a memorandum regarding reconsideration of

certificate of need #2682 involved in the South Miami Hospital case wherein

South Miami Hospital sought to initiate radiation therapy services. That memo

stated:

The Department does not currently have a rule

in place to determine the need for radiation

therapy, as such the reconsideration of

CON #2682, utilizing statutory criteria, will

consider an applicant's specific justification

for the purchase of major medical equipment

and the initiation of a new service

(emphasis added).

7. The Department subsequently reiterated that the establishment of a

radiation therapy service would be reviewed as a new institutional health

service in the case of Bayfront Medical Center v. Department of Health and

Rehabilitative Services, DOAH Case No. 87-2029 (Final Order entered September

1988). In adopting the hearing officer's conclusions of law from the

recommended order in that case concerning the need for review of St. Anthony's

Hospital's CON application for a radiation therapy service the Department

determined that, as did the hearing officer:

A certificate of need is required when a

hospital proposes a capital expenditure over

a threshold amount to provide inpatient health

services or proposes a substantial change of

inpatient institutional health services.

Section 381.706(1)(c) and (h), Florida Statutes,

(1987). Since the application under consider-

ation in this proceeding proposes radiation

therapy services to inpatients, as well as

outpatients for a total project cost of almost

4.2 million dollars, a CON is required.

8. The Department failed to explain any reasonable basis for any proposed

change in the policy explicated in the May 22, 1986 policy memorandum, quoted

above, and in the final order in Bayfront Medical Center supra. The

Department's position may be summed up to the effect that its policy has changed

from one of considering radiation therapy to be a new institutional health

service to the current alleged policy of considering it to be a capital

expenditure. It did not explicate why that policy had changed or a rational,

factual or legal basis for it however and in view of the totality of Ms. Dudek's

testimony it seems that the Department witness was emphasizing the policy of

referring to the addition of radiation therapy as reviewable as merely a capital

expenditure because of the Department's view, apparent from her testimony, that

it in essence involves purchase of a linear accelerator. In the face of the

unrefuted evidence to the effect that much more in the way of equipment,

services and staff is involved in adding radiation therapy to the range of

services offered by a hospital, it is apparent that the Department has failed

to explicate a rational basis for the putative policy of regarding the

institution of such a health service as merely a capital expenditure.

9. Baptist Hospital operates a radiation therapy center of its own of

approximately 10,000 square foot space. This area contains shielded space for

linear accelerators, examination rooms, physicians offices, as well as a machine

shop for repair and maintenance of the linear accelerators and space for

dosimetry computers. This department at Baptist is organized and operated

separated from other oncology services. Radiation therapy is primarily used to

treat cancer patients and the patients are seen, evaluated, and treated within

the confines of the radiation therapy facility. Policies and procedures unique

to the radiation therapy department are utilized. Staff members include,

physicians, technicians, physicists, and dosimetrists who are dedicated only to

the provision of the radiation therapy service at the hospital. Thus from a

clinical perspective, therapy is not merely an extension or an adjunct of the

existing oncology program but rather is a separate therapeutic service in and of

itself to which oncology patients may be referred when the services are deemed

needed. Indeed, oncology involves different forms of curative and palliative

treatment, including surgery and chemotherapy, with much different protocols,

differently trained specialized staff members, differently trained and/or

certified physicians with different methods, therapies and protocols for

treating cancer. The commonality between the two types of service is that they

have the ultimate goal of treating cancer patients, but the evidence shows that

they are clearly two different medical specialties and institutional health

services.

10. There is little relationship between radiation oncology and the field

of diagnostic radiology. Diagnostic radiology services are utilized almost

exclusively to diagnose illnesses, conditions, while radiation oncology or

radiation therapy is used to therapeutically treat patients with radiation to

effect a cure or palliation. Radiation oncologists consult with and exchange

patients with general surgeons, ear, nose and throat specialists, and other

specialists as they do with medical oncologists. Therefore medical oncology and

radiology are separate and distinct services.

11. Although there is a relationship between radiation oncology and other

cancer services such as chemotherapy and surgical therapy, the relationship is

different in terms of the unique services, equipment and specially trained

personnel required to provide radiation therapy as opposed to differently

trained personnel, different equipment, therapy and procedure protocols required

for other types of cancer services. Thus from a health planning perspective it

does not logically follow that because a hospital provides medical or surgical

oncology services, that it should also provide radiation therapy. The issue of

the need for the service in terms of patient demand, availability of the

specially trained personnel, the costs of providing the service, including the

financial feasibility of constructing the facilities and buying the equipment

needed, as well as the impact on other providers in terms of diversion of

available patient days must be considered. It is noteworthy, as a corroborative

aside concerning the evidence that establishes that radiation therapy is a

separate and distinct institutional health service, that 29 of the 33 states

which have certificate of need programs for the regulation of acute care

facilities require a separate certificate of need in order to establish a

radiation therapy service program.

12. Sacred Heart does not currently have a radiation therapy service. It

does have oncology services and surgical services that includes surgical therapy

for cancer patients. Patients who need radiation therapy currently are referred

out to other facilities including Baptist Hospital. Sacred Heart attempted, in

its case in support of the HRS position treating this as merely a capital

expenditure situation, to analogize the provision of radiation therapy services

to the acquisition of a lithotripter. Sacred Heart contends that lithotripsy

which is a form of treating kidney stones is an extension of the urology program

of a hospital and that radiation therapy, a form of treating cancer tumors is

merely an extension of an overall integrated cancer treatment program. However,

whereas the residency requirement for radiation therapy or oncology is four

years, after at least one year of post-doctoral work, the specialized training

necessary to perform lithotripsy is a specialty training course of only several

weeks duration. Further, hospitals requiring lithotripters typically have

urologists treating kidney stones on the hospital staff. Sacred Heart in this

instance has no radiation oncologist on its staff acting with admitting

privileges who could provide radiation therapy services at the present time.

Although it may have medical oncologists and surgeons on staff who treat cancer

patients, Sacred Heart lacks the specialized policies and protocols, equipment,

shielded physical space, specially trained medical personnel such as radiation

oncologists, dosemetrists and physicists necessary to provide radiation therapy

absent to the establishment of a new service.

13. The list of institutional health services for which there is a

specific need methodology includes, among others, inpatient cardiac

catheterization, open heart surgery, neonatal intensive care units and

transplant programs. The Department's attempt to distinguish between the

establishment of an inpatient cardiac cath service and an inpatient radiation

therapy service by stating that HRS had a rule methodology for the establishment

of inpatient cardiac cath services whereas it didn't for inpatient radiation

therapy services is a distinction without any logical basis. This is because

the establishment of a service such as radiation therapy as a distinct and

separate institutional health service depends upon the factual uniqueness or

differences in the equipment, staff, protocols and policies required to

institute such a service, as compared to other existing services at such a

hospital, rather than the mere fact that the Department in the past has chosen

to have a rule methodology for one type of service and not for another one.

14. This distinction cannot serve as the basis for establishment of HRS's

intent or policy in this regard in any event, however, because HRS has at least

reserved Rule 10-5.011(1)(g), Florida Administrative Code for a radiation

therapy methodology in any event, it simply has not enacted one yet, thus

belying any distinction in terms of its body of rules, regarding different

institutional health services based upon the mere fact that it has enacted a

rule methodology for determining need for one type of institutional health

service and not for another as yet.

15. In summary, although the Department and Sacred Heart attempt to

distinguish between radiation therapy and other institutional inpatient health

services such as open heart surgery and cardiac catheterization by contending

that radiation therapy is not a specialized service, in reality it has been

established that radiation therapy requires a separate facility with specialized

equipment, specially trained medical personnel with different training from

personnel devoted to other types of cancer services, different protocols and

procedures. It thus cannot be found to merely be an adjunct or extension of

other cancer services, but rather is a separate and distinct institutional

inpatient health service, just as open heart surgery, cardiac catheterization,

diagnostic radiology or medical oncology for instance.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction of the

subject matter of and the parties to this proceeding.

17. Section 120.57(1), Florida Statutes (1989).

Section 381.709(5)(b), Florida Statutes (1989) provides, in pertinent part:

... existing health care facilities may initi-

ate or intervene in such administrative hearing

upon a showing that an established program

will be substantially affected by the issuance

of a certificate of need to a competing pro-

posed facility or program within the same dis-

trict, provided that existing health care

providers, other than the applicant, have no

standing or right to initiate or intervene in

an administrative hearing involving a health

care project which is subject to certificate

of need review solely on the basis of

s. 381.706(1)(c) ...

18. The Department contends that the Sacred Heart application is

reviewable solely on the basis of Section 381.706(1)(c), Florida Statutes and

that therefore the Intervenor Baptist Hospital has no standing to participate in

the proceeding. Baptist's standing to participate in this proceeding depends

upon a determination that the Sacred Heart Hospital application is subject to

CON review pursuant to Section 381.706(1)(h), Florida Statutes (1989), which

requires full CON review for projects which involve:

The establishment on inpatient institutional

health services by a health care facility, or

a substantial change in such services, or the

obligation of capital expenditures for the

offering of, or a substantial change in such

services which entails a capital expenditure

in any amount, for an annual operating cost

of $500,000 or more. The Department shall,

by rule, adjust the annual operating cost

threshold annually using an appropriate in-

flation index.

19. In attempting to determine whether the establishment of a radiation

therapy center at Sacred Heart constitutes the addition of an inpatient

institutional health service to that facility or a substantial change in such

health services by Sacred Heart, reference to the definition of "health

services" in Section 381.702(9), and "institutional health service" in Section

381.702(13) are essential. Those sections provide respectively as follows:

'Health services' means diagnostic, curative,

or rehabilitative services and includes

alcohol treatment, drug abuse treatment, and

mental health services.

'Institutional health service' means a health

care service which is provided by or through a

health care facility and which entails an

annual operating cost of $500,000 or more.

The Department shall by rule, adjust the annual

operating cost threshold annually using an appro-

priate inflation index.

20. Since Sacred Heart's proposal involves a curative service, in effect

radiation therapy, designed to treat and cure cancer cases, at an annual

operating cost in excess of $500,000 its proposal comes within the definition of

"institutional health services".

21. Radiation oncology is a therapeutic process in which external

radiation beams are utilized to treat cancerous tumors to affect a cure or

palliation. Radiation therapy is provided by board certified radiation

oncologists and specialized facilities which house radioactive materials and

specialized equipment, such as linear accelerators. The provision of radiation

therapy requires specialized medical personnel such as technicians certified to

operate linear accelerators, to provide radiation treatments as well as

physicists and dosemetrists to calibrate machines and insure that radiation

treatments are properly delivered. From both a clinical and health planning

perspective, radiation therapy has been demonstrated to be a separate

institutional health service and not merely an extension of a hospital's

existing oncology program or existing radiology program.

22. Sacred Heart must construct a physical structure to house radioactive

materials and linear accelerators in order to provide radiation therapy as shown

as above in the Findings of Fact. It must obtain all the specialized equipment

necessary to provide this services, must recruit radiation oncologists to its

medical staff, as well as physicists and dosemetrists in order to provide

radiation therapy to patients. It must develop policies and protocols for the

radiation therapy service. Although there is a relationship between the

existing oncology service at Sacred Heart and radiation therapy, the radiation

therapy will constitute a new inpatient institutional health service at Sacred

Heart.

23. Although a few brachytherapy procedures had been performed in the past

at Sacred Heart, these procedures are currently not being performed there but

rather are being performed at Baptist Hospital. The occasional past provision

of brachytherapy at Sacred Heart by practitioners who happen to be trained in

such therapy does not constitute the establishment of a radiation therapy

service. The Department's contention that the Sacred Heart application should

be reviewed merely as a capital expenditure is inconsistent with the prior

policy statements on the subject and its final orders regarding the review of

CON applications to establish radiation therapy services. The Department has

reserved Rule 10-5.011(1)(g), Florida Administrative Code, for the establishment

of a radiation therapy need methodology. Further, although the Department has

deleted references to other services that it no longer regulates as

institutional health services, such as computerized tomography and chronic renal

dialysis. It has not repealed any such reference to radiation therapy, however.

Additionally, in the May 22, 1986 memorandum referenced in the above findings of

fact regarding the reconsideration of certificate of need 2682 for radiation

therapy services at South Miami Hospital, HRS determined that it would consider

applications for the initiation of radiation therapy services to involve the

acquisition of major medical equipment and the initiation of a new service.

24. In its final order in Bayfront Medical Center v. Department of Health

and Rehabilitative Services, DOAH Case No. 87-2029 (HRS Final Order entered

Sept. 1988), the Department adopted the hearing officer's conclusions of law in

which it recognized that the initiation of a radiation therapy service was

reviewable as a capital expenditure and also as a new inpatient institutional

health service under the provisions of Section 381.706(1)(c) as well as (h),

Florida Statutes.

25. HRS has attempted to refute its prior policy of reviewing applications

for the establishment of a radiation therapy service as a new institutional

health service. The Department's action in the instant case is identical to its

actions which were invalidated by the First District Court of Appeal in Health

Care and Retirement Corporation of American, Inc. v. Department of Health and

Rehabilitative Services, 559 So.2d 665 (Fla. 1st DCA 1990). In that situation

the Department had refused to allow the applicant to introduce evidence

supporting a grant of 18 nursing home beds, as opposed to the 20 beds originally

sought in the application. The hearing officer accepted evidence of the

Department's past practice of allowing "down-sizing" at the final hearing, even

though the reduced number of beds had not been considered at the time of the

application. In that case the HRS witness acknowledged that the Department had

in the past allowed CON applicants to seek a smaller number of beds at the final

hearing. However, HRS had changed its policy so that only the number of beds

applied for would be considered at final hearing. The Department's witness in

that case then conceded that no rule to that effect had been proposed or

published and that the policy change was not disseminated in any form until it

appeared in a Department planning manual and on a revised application form.

Although the hearing officer permitted the down-sizing of the application, the

final order rejected the hearing officer's ruling with regard to the down-

sizing, finding that the agency did not have to give advanced notice of intent

to use a non-rule policy.

26. The First District Court of Appeal held that the Department ignored

the principle that:

. . . when an agency seeks to validate its

action based upon a policy that is not

recorded in rules or discoverable precedents,

that policy must be established by expert

testimony, documentary opinions, or other

evidence appropriate to the nature of the

issues involved and the agency must expose

and elucidate its reasons for its discre-

tionary action.

The court went on to state:

In other words an agency may apply incipient

or developing policy in a Section 120.57

administrative hearing provided the agency

explicates, supports, and defends such policy

with competent, substantial evidence on the

record in such proceedings.

27. The court found that the Department failed to meet the burden in that

the Department's witness merely stated that the rule requiring publication of a

fixed need pool number mandated the Department to change its established down-

sizing policy. The court found that the change was not otherwise supported or

defended in any way. Similarly, in the instant case, the Department offered no

basis for the explanation of its change in policy of reviewing radiation therapy

applications as the establishment of a new institutional health service. Ms.

Dudek merely testified that the policy had changed and offered no expert opinion

or other evidence to support the change in position or the reason for it. In

fact, in spite of her signature on the memo which suggested that radiation

therapy would be reviewed as a new service, she testified that it was her

recollection that the Department had never reviewed such an application as

anything but a request for the acquisition of major medical equipment.

28. The Court of Appeals for the First District stated in Amos v.

Department of Health and Rehabilitative Services, 440 So.2d 43 (Fla. 1st DCA

1983):

Central to the fairness of administrative

proceedings is the right of affected persons

to be given the opportunity for adequate and

full notice of agency activities. These per-

sons have the right to locate a precedent and

have it apply and the right to know the

factual basis and policy reasons for agency

action. State ex. rel. Department of General

Services v. Willis, 344 So.2d 580 (Fla. 1st DCA

1977). Inconsistent results based upon

similar facts, without a reasonable explana-

tion, violates subsection 120.68(12)(b),

Florida Statutes, as well as the equal protec-

tion guarantees of both the Florida and United

States constitutions. North Miami General

Hospital Inc. v. Department of Health and

Rehabilitative Services, 355 So.2d 1272, 1278

(Fla. 1st DCA 1978). 444 So. 2d at 47." See

also International Medical Centers HMO v.

Department of Health and Rehabilitative

Services, 417 So.2d 734 (Fla. 1st DCA 1982)

and McDonald v. Department of Banking and

Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

29. Accordingly, the preponderant evidence of record demonstrates that the

establishment of the radiation therapy service at issue will constitute the

establishment of a new inpatient, institutional health service by the health

care facility, Sacred Heart or at least a substantial change in the services

presently offered. Thus the Sacred Heart application is subject to CON review

pursuant to Section 381.706(1)(h), Florida Statutes (1989) and therefore Baptist

Hospital has standing to participate as a party in this proceeding based upon

such review.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the

candor and demeanor of the witnesses and the pleadings and arguments of the

parties it is therefore recommended that the motion to dismiss the petition to

intervene filed by Baptist Hospital be denied, that Baptist Hospital be accorded

standing in this proceeding and that the case proceed to hearing on the

substantive merits of the application.

RECOMMENDED this 3rd day of April, 1991, in Tallahassee, Florida.

_________________________________

P. MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3576

Petitioner's proposed findings of fact:

1 Accepted.

2 Accepted, but subordinate to the Hearing Officer's findings of fact on

the subject matter.

3-6 Accepted.

7 Rejected as subordinate to the Hearing Officer's findings of fact on this

subject matter.

8 Accepted.

9 Rejected as immaterial in this de novo proceeding.

10-20 Accepted.

21-22 Accepted, but not itself dispositive of material issues.

23-24 Accepted.

25-26 Accepted, but not materially dispositive.

27 Accepted, but subordinate to the Hearing Officer's findings of fact.

28 Accepted, but not materially dispositive.

29 Accepted, but not material.

30 Rejected as subordinate to the Hearing Officer's findings of fact.

31 Rejected as irrelevant.

32 Rejected as immaterial.

33 Rejected as subordinate to the Hearing Officer's findings of fact and as

immaterial.

34 Rejected as subordinate to the Hearing Officer's findings of fact on the

subject matter.

35 Accepted, but not materially dispositive.

36 Rejected as subordinate to the Hearing Officer's 'findings of fact and as

contrary to the preponderant weight of the evidence.

37-41 Rejected as a discussion and recitation of testimony and not fact finding

and as subordinate to the Hearing Officer's findings of fact.

Intervenor's proposed findings of fact:

1-18 Accepted.

COPIES FURNISHED:

Stephen Ecenia, Esquire

Katz, Kutter, Haigler, Alderman,

Davis, Marks & Rutledge, P.A.

215 S. Monroe Street

Suite 400

First Florida Bank Building

Tallahassee, FL 32301

Karen O. Emmanuel, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Post Office Drawer 1271

Pensacola, FL 32596

Richard A. Patterson, Esquire

Department of Health and

Rehabilitative Services

2727 Mahan Drive, Suite 103

Fort Knox Executive Center

Tallahassee, FL 32308

Sam Power, Agency Clerk

Department of Health and

Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris, General Counsel

Department of Health and

Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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. 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.

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

DOAH ORDER OF VOLUNTARY DISMISSAL

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SACRED HOSPITAL OF )

PENSACOLA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3576

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

)

and )

)

BAPTIST HOSPITAL, )

)

Intervenor. )

______________________________)

ORDER OF VOLUNTARY DISMISSAL

THIS CAUSE comes before the undersigned upon Petitioner's Notice of

Voluntary Dismissal, and the Hearing Officer being advised in the premises, it

is, therefore,

ORDERED:

That Case No. 90-3576 is hereby DISMISSED, and the file of the Division of

Administrative Hearings is hereby CLOSED.

DONE AND ORDERED this 12th day of January, 1993, in Tallahassee, Leon

County, Florida.

___________________________________

P. MICHAEL RUFF

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

COPIES FURNISHED:

Karen O. Emmanuel, Esquire

EMMANUEL, SHEPPARD & CONDON

Post Office Drawer 1271

Pensacola, Florida 32596

Richard Patterson, Esquire

Department of Health and

Rehabilitative Services

2727 Mahan Drive, Suite 103

Fort Knox Executive Center

Tallahassee, Florida 32308

Stephen A. Ecenia, Esquire

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

SACRED HEART HOSPITAL

OF PENSACOLA,

Petitioner,

vs. CASE NO. 90-3576

CON NO. 6158

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent,

and

BAPTIST HOSPITAL,

Intervenor.

_____________________________/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency

order, upon Order of Hearing Officer Ruff, attached hereto, dismissing the case,

it appearing from the Petitioner's Voluntary Dismissal, also attached hereto,

that there are no disputed issues of fact.

FINDINGS OF FACT

1. On December 30, 1992, Petitioner filed a Voluntary Dismissal in the

above-styled case. On January 12, 1993, the Hearing Officer entered the Order

of Voluntary Dismissal.

2. The Agency hereby adopts and incorporates by reference the attached

Notice of Voluntary Dismissal and Order of Voluntary Dismissal.

3. There are no remaining disputed issues of fact or law.

CONCLUSIONS OF LAW

The Agency for Health Care Administration has jurisdiction over the parties

and subject matter pursuant to Section 120.57, Fla. Stat. (1991).

Based on the foregoing,

IT IS ADJUDGED that:

The above-styled case is DISMISSED.

DONE and ORDERED this 26th day of February, 1993, in Tallahassee, Florida.

_______________________

Douglas M. Cook

Director

Agency for Health Care

Administration

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH

THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH THE FILING-FEE AS

PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT

WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW

PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE

PROCEDURE.

COPIES FURNISHED:

Karen O. Emmanuel, esquire"

Emmanuel, Sheppard, Condon

30 South spring Street

Post Office Drawer 1271

Pensacola, Florida 32596

Stephen A. Ecenia, Esquire

Rutledge, Ecenia, Underwood

& Purness, P.A.

Barnett Bank Building

315 South Calhoun Street, Suite 500

Tallahassee, Florida 32301

R. Michael Ruff, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Richard A. Patterson, Esquire

Senior Attorney

Agency for Health Care

Administration

2727 Mahan Drive, Suite 103

Tallahassee, Florida, 32308

Liz Dudek (AHCA)

Legal Office (AHCA)

CERTIFICATE OF SERVICE

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

furnished by U.S. Mail, this 2nd day of March, 1993, to the above-named people.

______________________________

R.S. Power, Agency Clerk

Agency for Health Care

Administration

325 John Knox Road,

3rd Floor, Room 33

Tallahassee, Florida 32303

[phone]