These proceedings result from the Department of Health and Rehabilitative Services' ("DHRS") denial of the applications for certificate of need ("CON") to construct community nursing home beds in Hillsborough County submitted in the January, 1987, batching cycle by Forum Group, Inc., Sponsor of Retirement Living of Hillsborough County ("Forum"), Hillsborough Healthcare, Ltd., d/b/a Convalescent Nursing Center of Hillsborough County ("HHL"), Manor Care of Florida, Inc., d/b/a Manor Care of Hillsborough County ("Manor Care"), Cypress Total Care ("Cypress"), Palm Court Nursing Home ("Palm Court"), and other applicants who subsequently voluntarily dismissed their petitions before final hearing, and their respective challenges to the DHRS preliminary approval of: Florida Country Place, Ltd., ("FCP"), for 30 beds; THA/Oxford Senior Living Ventures, d/b/a Oxford Hillsborough Nursing Associates ("VHA/Oxford"), for 120 beds; and Health Care and Retirement Corporation of America ("HCR"), for 120 beds. VHA/Oxford voluntarily dismissed its application on the record during the first day of the final hearing.Error w/numeric bed need insubstantial. Considering all criteria (ie serious errors on denied apps), HRS properly granted CONs among competing parties.

Competing CONs for community nursing home beds were allowed to ""update"" apps (over HRS's objections) since SAAR changed. RO that 7 of 8 CONs be granted.

The ultimate issue is whether the application of Home Care Associates for a Certificate of Need to establish a Medicare-certified home health agency in Okaloosa and Walton Counties should be granted. The principal factual issue is whether there is a need for an additional agency and the principal legal issue is what criteria for need should be applied. The statutory criteria for determining need is Section 381.705, Florida Statutes. In this proceeding, the Petitioner showed its entitlement to a CON using the statutory criteria set out in Section 381.705, Florida Statutes.HRS used statutory criteria to adjudicate home health care need on case by case basis, if agency's denial is too general then appl. can show facts

Pursuant to notice, a formal hearing was held in this cause on May 11, 1988, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling. APPEARANCES For Petitioner: Vicki Gordon Kaufman Attorney at Law McDermont, Will and Emory 101 North Monroe Street Tallahassee, Florida 32301HRS preliminary action denying Certificate Of Need with clear point of entry is initiated by agency. HRS' denial based on impossible standard not substantially justified

Pursuant to notice, a hearing was held in the above-styled case on January 11, 1988, in Tallahassee, Florida. APPEARANCES For Petitioners: Eric B. Tilton, Esquire 810 Thomasville Road Post Office Drawer 550Agency's alleged unpromulgated rule was but a statement of existing legislation and therefore not a rule

The issue is whether Petitioner, Home Health of Bay County, Florida, Inc., (Home Health Care of Bay) is entitled to a certificate of Need to establish a Medicare-certified home health agency in Bay County, Florida. Home Health Care of Bay presented the testimony of Mark Ehrman, M.D., Marta Hardy, and Deborah S. Kolb, Ph.D. Home Health Care of Bay's Exhibits 1, 2, 3, 3A, 3B, 3C, 4A, 4B, 5, 9-12, 18, and 20 were admitted in evidence. The Department of Health and Rehabilitative Services (DHRS) presented the testimony of Joyce Farr, David Carter, Laura Young, R.N., and Anne Parmer. Home Health Care of Bay recalled Dr. Ehrman and Dr. Kolb on rebuttal. The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact have been considered and a specific ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.Incipient policy. HRS standard requiring applicant to affirmatively show unmet need, unavailability of services or inaccessibility is arbitrary

The burden of proof in this proceeding was placed on the Department to establish by competent and substantial evidence the basis for its decision to proceed with a competitive rather than multiple award approach for copier acquisitions in 1980-1981. The Department has presented competent and substantial evidence to support its contention that the specifications which form the basis of a competitive award adequately meet the state's needs at the lowest cost without discriminating among vendors. See Florida Cities Water Company v. Florida Public Service Commission, Case No. 55, 722, filed June 12, 1980; McDonald v. Department of Banking and Finance, 346 So.2d 569 (1st D.C.A. 1977). However, as noted in the Findings of Fact, the proposed competitive award system has potential for improvement in certain areas. These include: making adjustments so that the cost of copiers with built in sorting features is fairly compared with copiers with sorting as an add on accessory, considering alternatives to the present district bidding system so as to maximize vendor participation, (3) taking steps to insure that the post- acquisition certification process required by rule is followed by user agencies and (4) communicating with user agencies the circumstances under which exceptions will be granted and making the exception process a viable alternative to the contract when warranted. Therefore, it is recommended that the Governor and Cabinet enter a final order: Denying Savin's Motion To Dismiss; Denying the relief requested by Xerox in its Petition; Directing the Department to competitively award the 1980-1981 State copier contract for walk-up convenience copiers; and Instructing the Department to study the feasibility of implementing the suggested modifications made in this Recommended Order. DONE and ORDERED this 8th day of September, 1980, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1980.Parties have standing to challenge competitive rather than multiple award system for copiers. Respondent not negligent in taking competitive bids.