Judges: K. N. AYERS
Agency: Department of Management Services
Latest Update: Nov. 14, 1978
Summary: Language applies only to particular application for Certificate of Need and Respondent`s proposed plan needs no Certificate of Need and is entitled to letter sayin it is not a Development of Regional Impact.
77-2223.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOARD OF TRUSTEES OF )
ALACHUA GENERAL HOSPITAL, )
)
Petitioner, )
) BOARD OF COUNTY COMMISSIONERS ) OF ALACHUA COUNTY, FLORIDA, )
)
Intervenor, )
) CASE NO. 77-2223 NORTH FLORIDA REGIONAL HOSPITAL, )
)
and )
) DIVISION OF STATE PLANNING, ) STATE OF FLORIDA, )
)
Respondents )
)
RECOMMENDED ORDER
Pursuant to notice, a Motion hearing was held in the above styled case on July 28, 1978 at Tallahassee, Florida.
APPEARANCES
For Petitioner: William C. Andrews, Esquire
Philip A. DeLaney, Esquire 1133 Northwest 23rd Avenue Gainesville, Florida 32601
and
Robert M. Rhodes, Esquire Post Office Box 1876 Tallahassee, Florida 32302
For Intervenor: Peter Skoro, Esquire
Assistant County Attorney Post Office Drawer "CC" Gainesville, Florida 32602
For Respondent Jon Moyle, Esquire
North Florida Daniel H. Jones, Esquire Regional Post Office Box 3888
Hospital: West Palm Beach, Florida 33402
For Respondent C. Lawrence Keesey, Esquire Division of Staff Attorney
State Planning: Division of State Planning
335 Carlton Building
Mailing address: 530 Carlton Building Tallahassee, Florida 32304
PROCEDURAL BACKGROUND
At this hearing Intervenor's motion to join in Petitioner's motion to file an Amended Complaint was granted, Respondent's motion for a protective order was granted, and Petitioner's motion to file an Amended Complaint was denied. These rulings were contained in Order dated July 28, 1978. Additionally, the July 26, 1978 Order gave all parties two weeks in which to submit briefs on the sole issue remaining in this case, viz. the legal interpretation of Rule 22F02.04 Florida Administrative Code; and, specifically, whether the words "whose application for a certificate of need under Section 381.494, Florida Statutes" refers only to the application and not to other applications of Respondent for a certificate of need.
Prior to the expiration of the time allowed for filing briefs, Petitioner, on August 3, 1978, advised that it intended to appeal the July 28, 1978 Order to the District Court of Appeal and requested a continuance of these proceedings.
By Order entered August 7, 1978 a continuance was denied; however, this Order advised that the ruling would be reconsidered upon receipt of the Notice of Appeal.
On August 11, 1978 Petitioner perfected its appeal of the Non-Final Administrative Action encompassed in the July 28, 1978 Order; and by Order entered August 15, 1978 these proceedings were stayed pending the First District Court of Appeals' ruling on Petitioner's motion to stay these proceedings. By Order entered August 31, 1978 the First District Court of Appeals in Case No.
KK-488 denied the Petition for Review of Non-Final Administrative Action, thereby lifting the stay entered by the Hearing Officer on August 15, 1978 and reinstituting the time within which the parties had to file briefs on the issues remaining in this case. That time has now expired.
FINDINGS OF FACT
By letter dated December 16, 1977, the Division of State Planning forwarded Petitioner's request for a hearing on an application for a Binding Letter of Interpretation submitted by North Florida Regional Hospital, Respondent.
Respondent sought a determination that a proposed addition to North Florida Regional Hospital was not a Development of Regional Impact (DRI) pursuant to Section 380.06(4)(a), Florida Statutes.
Thereafter Respondent filed a request with the State of Florida, Department of Health and Rehabilitative Services (HRS) for a determination that a certificate of need was not required for the proposed addition to the hospital. Petitioner thereupon requested a hearing pursuant to Section 120.57(1), Florida Statutes for a factual determination whether or not the preliminary plans for the proposed addition had been filed by Respondent prior to July 1, 1973, so as to exempt Respondent from the requirement of obtaining a certificate of need. This was forwarded to the Division of Administrative
Hearings (DOAH) for the designation of a hearing officer to conduct the hearing, assigned Docket Number 78-054, and referred to the undersigned for hearing.
Petitioner moved that these two cases be consolidated for hearing on the grounds that the parties and issues of fact for the two cases are the same.
A prehearing conference was held on January 6, 1978, at which all pending motions were considered, and the issues to be contested at the forthcoming hearings were resolved.
After full discussion by the parties, oral stipulations were entered into. These stipulations were written down by the Hearing Officer, read back to and accepted by the parties, and thereafter incorporated in the Order entered January 9, 1978.
Prior to the motion hearing on July 28, 1978, no party questioned the accuracy or validity of these stipulations.
On January 9, 1978, the results of the January 6, 1978 prehearing conference were memorialized in an Order stating that all parties agreed that only two basic issues were involved in this case. One was a factual determination relating to the status of Respondent's application to HRS (Docket 78-054) respecting a certificate of need and the other a legal issue regarding the interpretation of Rule 22F-2.04, Florida Administrative Code. The parties agreed that the factual issues regarding the certificate of need was a threshold question which needed to be resolved before the instant case was decided and, therefore, that case should proceed first. At this prehearing conference the parties stipulated that:
If no certificate of need is required pursuant to Section 381.494, F.S. for the
150 bed addition proposed for North Florida General Hospital, and that, if in Rule 22F-2.04 Florida Administrative Code the words "whose application for a certificate of need under Section 381.494, Florida Statutes," refers
only to the application under consideration and not to other applications by Respondent
for a certificate of need, then the application is not a Development of Regional Impact and
the Division of State Planning should issue the binding letter of interpretation re- quested by Respondent.
The Hearing Officer submit a Recommended Order to Division of State Planning construing Rule 22F-2.04, Florida Administrative Code
and make recommendations regarding the
issuance of a binding letter of interpretation.
The parties will submit briefs by January 13, 1978 on the interpretation of Rule 22F-2.04, Florida Administrative Rule to Hearing Officer for his consideration in preparing his Recommended Order.
By Order entered January 19, 1978 Petitioner's Motion for Consolidation of Dockets 77-2223 and 78-054 was denied and the entering of a Recommended Order in Docket 77-2223 was stayed pending completion of the hearing in Docket 78-054.
The hearing in Docket No. 78-054 was held on March 31, 1978 and the Recommended Order was filed April 13, 1978. On July 11, 1978 HRS entered its Final Order in Docket Number 78-054 sustaining the ultimate findings of the Hearing Officer that Respondent had filed preliminary plans for the proposed addition prior to July 1, 1973 and did not now require a certificate of need for the proposed addition to the hospital.
CONCLUSIONS OF LAW
Here the parties stipulated to the issues involved in these proceedings in a hearing at which all parties were represented by counsel.
Rule 1.030(d), Florida Statutes of Civil Procedure entitled "Stipulations" provides in pertinent part:
...parol agreements may be made before court if promptly made a part of the record or in- corporated in the stenographic notes of the proceedings....
Here the Order containing the stipulations was entered January 9, 1978 and no question regarding the validity of these stipulations was raised until after HRS entered its Final Order on July 11, 1978 in Docket No. 78-054. In order to obtain relief from stipulations, the regular course is not to ignore or attempt to evade them, but to make a seasonable and affirmative application by formal motion to the court, on notice and supported by affidavits, for its withdrawal or revocation. Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3 DCA 1976). It is incumbent upon the party seeking to avoid consequences of stipulations entered into in open court to show good cause why terms of such stipulation should not be enforced. Villa v. Numac Const. Corp., 334 So.2d 274 (Fla. 3 DCA 1976).
By stipulating to the issues the parties removed from the Hearing Officer's consideration testimony relating to any other issues that might otherwise have been presented. Gandy v. Dept. of Offender Rehabilitation, 351 So.2d 1133 (Fla. 1 DCA 1977).
Petitioner here contends that it should not be bound by the stipulation because at the time the stipulations were entered into, they were not aware of, and the decision had not been rendered in, General Development Corp. v. Division of State Planning, 353 So.2d 1199 (Fla. 1 DCA 1978).
According to Petitioner this ruling precludes the Division of State Planning from rescinding its previously issued (in 1975) binding letter of interpretation that the expansion of Respondent's hospital was a Development of Regional Impact (DRI).
While holding that the State may not revoke, on the basis of newly discovered evidence, a binding letter of interpretation that the development was not a DRI, General Development also specifically held that where both the Division of State Planning and developer agree that changed plans or new information require revision of a prior binding letter of interpretation, Section 380.06(6), Florida Statutes does not forbid the change.
In October 1975 when Respondent was advised that, pursuant to Rule 22F.2.04, Florida Administrative Rule, the proposed addition was a hospital DRI, its possible exemption from the requirement of obtaining a certificate of need
was either not revealed by Respondent herein, or the Division of State Planning ignored their own rule which had become effective July 1, 1973. The former is certainly more likely than the latter.
Since the stipulations entered into at the prehearing conference on January 6, 1978 are binding upon the parties the sole issue remaining for determination is the interpretation of the provisions of Rule 22F-2.04, Florida Administrative Code which provides:
Hospitals. The following development shall be presumed to be a development of regional impact and subject to the requirements of Chapter 380, Florida Statutes:
Any proposed hospital which has a design capacity of more than six hundred (600) beds, or whose application for a certificate of need under Section 381.494, Florida Statutes, shows in the statement and purpose that such hospital is designed to serve the citizens of more than one county.
Respondent's proposed addition will not result in a capacity of more than 600 beds, accordingly the only issue is whether Respondent's earlier applications for certificates of need for CAT-scanners or other equipment make this application a DRI. The application for additional bed capacity, pursuant to Section 380.494(1)(a)(1), Florida Statutes, would require a certificate of need unless exempted by the provision of Section 381.495, Florida Statutes. The hearing conducted in Docket 78-054 resulted in a finding that Respondent was exempt from the provisions of Section 381.494.
The primary consideration in interpreting regulations, as in interpreting statutes, is to determine the intent of the originator. Here it is obvious that the application for a certificate of need, as intended by the above quoted rule, applies only to the application for a certificate of need under consideration and not to other applications which could require certificates of need even though the applicant does not serve the citizens of more than one county. As an example, Section 381.495(2), Florida Statutes makes it a misdemeanor in the second degree for a health care unit to install a radiation therapy unit without first obtaining a certificate of need. Obviously requiring a certificate of need for this equipment would not remove a health care unit from previously acquired "grandfather" rights.
Here we have an existing hospital serving the citizens of more than one county which desires to expend its bed capacity. While the initial construction of such a hospital would undoubtedly fulfill the statutory definition of DRI, which Section 380.06(1), Florida Statutes defines to mean "any development which because of its character, magnitude, or location, would have a substantial effect on the health, safety, or welfare of citizens of more than one county", the same impact will not result from an addition to an existing hospital.
However, here the parties have stipulated to the issues, and the factual issue has been resolved that Respondent does not require a certificate of need for its proposed expansion.
From the foregoing it is concluded that the words in Rule 22F-2.04, Florida Administrative Code "whose application for a certificate of need under
Section 381.494 Florida Statutes" applies only to the certificate of need in that application and not to other applications for certificates of need.
It is further concluded that, pursuant to the stipulation of the parties, since no certificate of need is required for the proposed expansion this expansion is not a Development of Regional Impact and a Binding Letter of Interpretation so stating should issue to Respondent.
RECOMMENDATION
RECOMMENDED that Respondent, North Florida Regional Hospital, be issued a Binding Letter of Interpretation that its proposed three-floor addition to the hospital is not a Development of Regional Impact.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of September, 1978.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
William C. Andrews, Esq. and
Philip A. Delaney 1133 N.W. 23rd Avenue Gainesville, FL 32601
Robert M. Rhodes, Esq. Post Office Box 1876 Tallahassee, FL 32302
Peter Skoro, Esq. Assistant County Attorney Post Office Drawer "CC" Gainesville, FL 32602
Jon Moyle, Esq. and
Daniel H. Jones, Esq. Post Office Box 3888
West Palm Beach, FL 33402
C. Lawrence Keesey, Esq. Staff Attorney
Division of State Planning
335 Carlton Building
Mailing address: 530 Carlton Bldg. Tallahassee, FL 32304
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DIVISION OF STATE PLANNING
ALACHUA GENERAL HOSPITAL,
Petitioner,
and
BOARD OF COUNTY COMMISSIONERS OF ALACHUA COUNTY, FLORIDA
Intervenor,
vs. CASE NO. 77-2223
NORTH FLORIDA REGIONAL HOSPITAL,
Respondent,
and
DIVISION OF STATE PLANNING,
Respondent agency.
/
ORDER
Upon review of the record in the above styled proceeding and after consideration of the Recommended Order of the Hearing Officer duly appointed to hear this case the undersigned Director of the Division of State Planning enters the following Order.
FINDINGS OF FACT
The Division of State Planning approves, adopts and incorporates by reference in this Order the findings of fact as stated by the Hearing Officer in his Recommended Order of September 15, 1978.
For the purpose of clarifying the term "parties" as used and referred to by the Hearing Officer in his Recommended Order the following additional finding of fact is adopted:
The Division of State Planning's status in this matter was as the Respondent agency from whom the North Florida Regional Hospital sought a binding letter pursuant to Section 380.06(4) Florida Statutes, and to whom Petitioner Alachua General Hospital sent its request for a formal hearing, alleging the existence of issues of material fact, pursuant to 120.57(1) F.S. The attorneys for the Division, Henry Dean, Esquire, and as of June 1, 1978, C. Laurence Keesey, Esquire, attended hearings in this case as observers only and did not
formally appear or participate as an active party or as a proponent or adversary of any position taken by either North Florida Regional Hospital or Alachua General Hospital. The Division Attorney did not participate in the drafting or acceptance of the stipulation of January 6, 1978 recorded in the Order dated January 9, 1978 and referred to in the Hearing Officer's Recommended Order at pages 4 and 5. The terms "parties" or "all parties" utilized by the Hearing Officer in his Recommended Order, and in this Order, refers to parties in this proceeding other than the Division of State Planning.
CONCLUSIONS OF LAW
The Division of State Planning does not accept the Conclusions of Law contained in the Recommended Order of the hearing officer and hereby makes and adopts the following Conclusions of Law as a substitution therefore:
As a result of the final order in the case of Alachua General Hospital et al v. North Florida Regional Hospital and Department of Health and Rehabilitative Services, Division of Administrative Hearings case number 78-054, a determination was made and is hereby adopted, that NFRH is not required to obtain a certificate of need in order to proceed with the hospital expansion under consideration in the instant case.
The Division concludes that the words in Rule 22F-2.04 F.A.C. "whose application for a certificate of need under Section 381.494 Florida Statutes. .
." are not applicable in this case because no certificate of need must be obtained by NFRH for this proposed expansion.
The ultimate legal determination to be reached in this case is whether or not the proposed expansion of the North Florida Regional Hospital (NFRH) is a development of regional impact (DRI) which, as defined in 380.06(1) F.S., means
"any development which because of its character, magnitude, or location would have a substantial effect upon the health, safety, or welfare of citizens of more than one county."
Pursuant to 380.06(2) and 380.10 F.S., the Florida Administration Commission adopted, and the Florida Legislature approved, certain guidelines and standards, effective July 1, 1973, specifying twelve (12) types of development that could be developments of regional impact and criteria or thresholds for each type. The guidelines and standards are contained in Chapter 22F-2 Florida Administrative Code. Section 22F-2.04 F.A.C. states the criteria for hospitals which are presumed to be DRI's:
"22F-2.04 Hospitals. The following development shall be presumed to be a development of regional impact and subject to the requirements of Chapter 380 Florida Statutes:
Any proposed hospital which has a design capacity of more than six hundred (600) beds or whose application for a certificate of need under 381.494 F.S., shows in the statement of purpose and need that such hospital is designed to serve the citizens of more than one county."
The 22F-2.04 F.A.C. standard for hospital development is primarily related to the size, or magnitude, of the hospital and its application for a certificate of need, if any. Application of the standard to a specific hospital development determines whether or not such development is presumed to be a DRI. This presumption, primarily based upon the magnitude of the hospital development, may be rebutted by evidence concerning the character, location, and other characteristics of a specific development that tends to establish that it would not in fact have regional impact. General Development Corp. v. Division of State Planning 353 So 2d 1199 (1st DCA Fla 1977).
Thus the thresholds specified in Chapter 22F-2 F.A.C. are utilized in determining whether a proposed development is of a type and size that is presumed to be a DRI but they do not control the ultimate legal conclusion as to whether that development is in fact a DRI.
Prior to the General Development Corp. Id. decision becoming final, the Division of State Planning did not look beyond Chapter 22F-2, F.A.C. to determine if a proposed hospital would be designated a DRI. If a hospital development met or exceeded the criteria contained in 22F-2.04 F.A.C. it was ruled to be a DRI, and if it did not it was held not to be a DRI. For instance, the Division's binding letter of interpretation dated October 8, 1975, concerning expansion of NFRH, determined that the project would be a DRI because at that time it was assumed that NFRH must obtain a certificate of need and the application for the certificate of need showed that citizens of more than one county would be served.
Thus, before the GDC decision, the Stipulation entered into by the parties on January 6, 1978 and recorded in the Order of January 9, 1978 was an accurate statement of the only questions the Division would have had to resolve to reach the legal conclusion as to whether the project was a DRI. The General Development decision, supra, became final after the January 6, 1978 stipulation, although it was first issued December 22, 1977. Since that decision, the Division may no longer simply apply the 22F-2.04 F.A.C. criteria in determining whether the NFRH expansion is a DRI. The 22F-2.04 F.A.C. criteria are presumptive, not determinative. The Division concludes that it must give the parties' stipulation of January 6, 1976 only that force and effect which will not preclude the agency from making a proper legal determination consistent with the requirements of the GDC decision.
The parties' stipulation of January 6, 1978 involves a conclusion of law, not merely facts or issues. The effect of accepting literally this stipulation (recorded in the Order of January 9, 1978) would be to control the Division's legal determination and limit its inquiry into whether the NFRH expansion is a DRI. The Division cannot permit parties to stipulate away or restrict its duty and authority to decide questions of law which, pursuant to Chapter 380.06(4) F.S., it alone is responsible for making. A stipulation with respect to a conclusion of law is not binding upon a court. Broward v. Sledge
50 So. 831 (Fla. 1909) This principle of law should be more stringently applied here, where the subject of the stipulation involves not only these parties, but the public health and welfare as well. 2 Fla. Jur. Agreed Case and Stipulations 8, citing Schriver v. Tucker 42 So 2d 707 (Fla. 1949). The Division concludes that the stipulation by the parties is not effective to the extent that it attempts to compel the Division to reach a conclusion of law that the NFRH expansion is not a DRI, without considering factors other than those mentioned in the stipulation.
The stipulation and the record in this case, when considered in light of the General Development case, establish that, pursuant to 380.06 F.S. and Rule 22F 2.04, the proposed expansion of NFRH is presumed not to be a development of regional impact.
The stipulation between the parties does not on its fact indicate any awareness of the General Development decision, which was not yet final on January 6, 1978. Nor does it contain any waiver of Alachua General Hospital's right to present evidence at a hearing in an attempt to overcome the established presumption favoring NFRH. The burden of proof at such a hearing would be upon Alachua General Hospital, and the presumption may be difficult to overcome, but Alachua General should not be precluded from making the attempt. The record reflects that Petitioners, Alachua General Hospital, et al have requested a formal 120.57(1) F.S. hearing at which evidence may be introduced to show that the expansion would have regional impact. Such a formal hearing has not yet been held.
The findings of fact do not contain information related to the present size of NFRH, the size and content of the proposed expansion or the quality and quantity of health care in the area. The facts to not establish whether NFRH serves more than one county, the extent of any such service, or the impact that such service, if any, may have outside Alachua County. The record does not contain sufficient competent and substantial evidence to establish that a determination in accordance with the General Development case has been made or to support a conclusion of law that the NFRH expansion would not be a Development of Regional Impact.
This case should be remanded to Hearing Officer so that further proceedings may be held in this matter in accordance with this Order.
ORDER
This case is hereby remanded to the Division of Administrative Hearings so that a hearing may be held, and findings of fact entered sufficient to support a conclusion of law as to the DRI status of the North Florida Regional Hospital expansion. At such a hearing, it shall be presumed that the proposed expansion of the NFRH is not a DRI and the burden shall be upon Petitioners to overcome this presumption.
Done and ordered this 14th day of November, 1978.
R. G. Whittle, Jr. Director
Division of State Planning
The original of this Order was mailed to the Division of Administrative Hearings, and copies were mailed to the following persons on this the 14th day of November, 1978.
William C. Andrews, Esquire Robert Rhodes, Esquire
Jon Moyle, Esquire Peter Skoro, Esquire
C. Laurence Keesey, Esquire
Docket for Case No: 77-002223
Orders for Case No: 77-002223
| Issue Date |
Document |
Summary |
|
Nov. 14, 1978 |
Agency Final Order
|
|
|
Sep. 15, 1978 |
Recommended Order
|
Language applies only to particular application for Certificate of Need and Respondent`s proposed plan needs no Certificate of Need and is entitled to letter sayin it is not a Development of Regional Impact.
|
