Gulf Coast Hosp., Inc. v. Department of Health and Rehabilitative Services

• Court: Florida District Court of Appeals
• Writing for the Court: BOOTH; SHAW; ROBERT P. SMITH, Jr.; ROBERT P. SMITH, Jr.
• Citation: Gulf Coast Hosp., Inc. v. Department of Health and Rehabilitative Services, 424 So.2d 86 (Fla. App. 1982)
• Decision Date: 16 December 1982
• Docket Number: No. SS-432,SS-432
• Parties: GULF COAST HOSPITAL, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Office of Community Medical Facilities and Fort Myers Community Hospital, Appellees.

Page 86

424 So.2d 86

GULF COAST HOSPITAL, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Office of Community Medical Facilities and Fort Myers Community Hospital, Appellees.

No. SS-432.

District Court of Appeal of Florida First District.

Dec. 16, 1982.

Jean Laramore of Laramore & Aye, Tallahassee, for appellant.

Eric J. Haugdahl, Asst. Gen. Counsel, Tallahassee, E.G. Boone, Venice, Art Forehand and Bruce J. Smith, Tallahassee, for appellees.

E. Philip Blank of Tucker & Blank, P.A., for Florida Osteopathic Medical Ass'n, Inc., amicus curiae.

BOOTH, Judge.

This cause is before us on appeal from a final order of the Department of Health and Rehabilitative Services (HRS) which denied the application of Gulf Coast Hospital (Gulf Coast) for a certificate of need to construct and operate a 116-bed acute care hospital in Fort Myers, Florida. Since the proposed facility would be an osteopathic facility, the application is governed by Section 381.494(2), Florida Statutes (1979), which provides that:

When an application is made for a certificate of need to construct or to expand an osteopathic facility, the need for such facility shall be determined on the basis of the need and availability in the community for osteopathic services and facilities.

There are two issues presented in this appeal: (1) whether the need and availability of osteopathic services and facilities is to be determined independently of existing nonosteopathic facilities; and (2) whether the application in this case supports the need for a 116-bed facility as proposed.

The determination of the first issue depends on the interpretation of "osteopathic facility" as that term is used in Section 381.494(2). The term "facility" in this context is commonly understood to include a hospital. ¹ This is the interpretation given by HRS rules which use the term "osteopathic health care facility" and further define "health care facility" to be, among other things not pertinent here, a "hospital." ²

Florida Statutes contain various references to osteopathic hospitals. For instance, an osteopathic residency and internship program authorized by Sections 459.005 and 459.021, Florida Statutes, is required to be carried out in "osteopathic hospitals." ³ The record also shows that there are some 18 separate, identifiable osteopathic hospitals licensed in Florida, ⁴ a fact presumably within the knowledge of the Legislature at the time of its enactment of Section 381.494(2), supra.

The term "osteopathic facility," then, would include an osteopathic hospital, a separate medical facility devoted primarily to the practice of osteopathy.

A question could be raised as to whether something less than an entire or separate hospital would also constitute an "osteopathic facility." We note that Section 381.494(2) does not require that the osteopathic facilities considered in determining need be separate or "free-standing." Presumably some portion of an existing facility devoted to the practice of osteopathy would come within the statutory definition and would be a factor considered in determining need for expansion or construction of other osteopathic facilities in the area. In the instant case, however, neither party relies on such an interpretation of the statute. Further, no evidence was presented that any part of existing medical facilities in the area constituted an "osteopathic facility," by any definition.

In these proceedings, HRS has not sought to define or interpret the term "osteopathic facilities," but rather to present evidence and arguments which would tend to disclaim the need for such facilities. ⁵

The Legislature, with the enactment of Section 381.494(2) and other statutes previously referred to, has determined the public policy of this state with regard to the need for identifiable osteopathic facilities. ⁶ This issue must be considered as settled by the Legislature and is not one for the agency or for this court to redetermine.

The record established that osteopathy ⁷ and allopathy ⁸ are two primary and separate schools of medicine which differ substantially in philosophy and practice, a difference which has been and continues to be "extremely divisive." ⁹ For a hundred years, osteopathy has afforded a choice to patients, a minority group of some ten percent of the population of the United States, who prefer to be treated by osteopathic physicians. Osteopathic facilities may not differ significantly as to physical plant and equipment but are highly distinctive because of the purpose for which they are constructed and maintained. That purpose includes the care and treatment of patients in accordance with the principles of osteopathy, the teaching and the study of osteopathic medicine, and the association in practice of doctors of osteopathy, including osteopathic specialists, with support from staff personnel suitably trained in the principles and philosophy of osteopathy. The management and control of the facility so as to actively further all of the above activities rather than to merely tolerate them, must be in the hands of osteopaths or those sympathetic to that school of medicine. In the absence of separate consideration of need and availability under Section 381.494(2), the valuable contribution of osteopathy and the freedom of choice to patients made available through this distinctive school of medicine will be jeopardized.

The appellant here proved the criteria necessary for issuance of a certificate of need and, in addition, proved present discrimination against osteopaths and their patients in existing medical facilities. ¹⁰ Despite the plain meaning of Section 381.494(2), Florida Statutes, however, the hearing officer adopted the position of HRS ¹¹ and ruled that need and availability for osteopathic facilities is not established within the meaning of Section 381.494(2) where non-osteopathic hospitals already in the area are overbedded and staff privileges are, or will be, available to osteopaths in these already existing facilities. ¹²

The hearing officer also adopted the contention of HRS that need for osteopathic facilities should not be considered separately from other, non-osteopathic facilities because to do so "would authorize the construction of an osteopathic hospital in every community in which one did not presently exist."

To state this last contention is to reveal its total lack of merit. Certificates of need for osteopathic hospitals are subject to the same myriad of requirements, including financial feasibility, which pertain to other facilities licensed by HRS. Further, the record does not support the dire predictions of HRS that a plain meaning construction of the statute would authorize the construction of an osteopathic hospital in every community. On the contrary, although HRS has, in the past, treated applications for expansion and purchase of new equipment for existing osteopathic hospitals under Section 381.494(2) separately, as required by the express terms of the statute, there is no showing of a great influx of applications for expansion or construction of osteopathic facilities has occurred. ¹³ Even were it otherwise and the agency's predictions of an osteopathic explosion correct, HRS would not be empowered to rewrite and administratively repeal the legislation in question. Arguments concerning the potential effect of the legislation or questioning the wisdom of such legislation are matters which should be presented to the Legislature itself.

We next consider the hearing officer's conclusion that, where non-osteopathic hospitals in the area have more beds for patients than patients, an osteopathic facility would not be certified unless discrimination against osteopaths prevented access to such facilities.

The hearing officer, in the recommended order adopted by the agency, determined that there was discrimination against osteopaths. ¹⁴ The order finds that at the time of the hearing two of the four existing allopathic hospitals had bylaws which prohibited osteopathic physicians from using those facilities; that, at the time of the filing of the application in this case, only one osteopathic physician, Dr. Centafont, had been admitted to practice in any of the four existing hospitals; and that several other osteopaths were admitted to consulting privileges only after the letter of intent to construct the osteopathic hospital in these proceedings had been filed. The hearing officer's order concludes, however, that, in view of the professed willingness of two of four hospitals (Lehigh Acres General Hospital and Fort Myers Community Hospital) to consider the applications of osteopaths and the anticipated effect of Section 395.0653, Florida Statutes, ¹⁵ the so-called "anti-discrimination statute," facilities would be available in the future for osteopaths, and the certificate of need should be denied.

Proof of discrimination is not required under Section 381.494(2). This is not to say, however, that the hearing officer is required to ignore evidence of discrimination, evidence which, in the instant case, exacerbates the need for the osteopathic facility in question. Thus, although there was considerable evidence of discrimination, as found by the hearing officer, this showing was not a required part of the applicant's burden under Section 381.494(2).

Nor is the anticipated effect of Section 395.065(3) ¹⁶ to eradicate discriminatory practices in hospital staffing procedures a basis for the denial of a certificate of need for an osteopathic facility. The potential availability of staff privileges for osteopaths in allopathic hospitals, even if it becomes something more than a "token," is not a substitute for the practice of osteopathy in an osteopathic hospital. The Legislature, in the enactment of Sections 381.494(2) (certification proceedings for osteopathic facilities) and 395.065(3) (staff privileges for osteopaths in existing facilities), has clearly spoken in recognition of...