STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HEALTH QUEST CORPORATION, )
(Duval County), )
)
Petitioner, )
)
vs. ) CASE NOS. 88-5079
) 88-5846
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case in Tallahassee, Florida, on December 15, 1988, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Charles M. Loeser, Esquire
General Counsel Health Quest Group
315 West Jefferson Boulevard South Bend, Indiana 46601-4000
For Respondent: Theodore E. Mack, Esquire
Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Tallahassee, Florida 32308 BACKGROUND
Case No. 88-5079 involves the Department of Health and Rehabilitative Services' (HRS) refusal to accept Health Quest Corporation's (Health Quest) application for a Certificate of Need (CON). The application requested expedited review and approval of a division of CON 2696 into three components and the addition of two of the components to an existing licensed nursing home facility. HRS refused to consider the application because it did not believe the application was subject to expedited review under the applicable statutes. Petitioner filed a request for a hearing and this proceeding ensued.
Case No. 88-5846 deals with the expiration of CON 2696. By letter dated October 19, 1988, HRS notified Petitioner that CON 2696 was no longer valid. Petitioner timely filed a petition for a hearing and the case was forwarded to the Division of Administrative Hearings (DOAH). At the beginning of the hearing in Case No. 88-5079, the parties stipulated that the issue of the expiration of CON 2696 is controlled by the decision in Case No. 88-5079. If the final
decision in Case No. 88-5079 is that HRS should grant expedited review, then CON 2696 remains valid, if the final decision is that HRS is correct in not granting expedited review, then CON 2696 has expired. An ore tenus motion to consolidate the two cases for hearing was granted.
Prior to the hearing, the parties filed a stipulation wherein they agreed to certain facts. These stipulated facts are set forth in Findings of Fact numbered 1-13, below. At the hearing, Petitioner presented the testimony of Mr. Kevin Krisher and offered 16 exhibits which were received into evidence. HRS presented the testimony of Ms. Sharon Gordon-Girvin and offered 31 exhibits which were received into evidence.
After the hearing both parties filed proposed recommended orders containing proposed findings of fact. The proposed findings of fact are addressed in the Appendix which is attached to this Recommended Order.
ISSUE
Whether Petitioner's application to divide the beds authorized by CON 2696 and combine a portion of those beds with an existing facility should be granted expedited review?
FINDINGS OF FACT
Health Quest owns and operates a 107-bed nursing home at 7130 Southside Boulevard in Jacksonville, located within Subdistrict 3 of HRS District IV.
Location of CON 2696
In July of 1983, Health Quest filed the application for CON 2696. Such application sought approval for a 120-bed nursing home in Duval County, which at that time constituted a separate planning subdistrict.
The application for CON 2696 was denied and Health Quest filed a 120.57 petition contesting such denial; the petition was referred to DOAH and designated as Case No. 84-0031.
Case No. 84-0031 was thereafter consolidated with the cases involving the other CON applications filed in July of 1983 for Duval County. The other applications were: (1) an application by Beverly Enterprises ("Beverly"), seeking a 12-bed addition (CON 2748) to its previously-approved 108-bed facility; (2) an application by Beverly for a new 120-bed facility (CON 2732);
(3) an application by Florida Convalescent Centers, Inc. ("FCC") for a 120-bed facility (CON 2969). The cases were consolidated under Case No. 83-3746.
On January 9, 1985, Case No. 83-3746 was settled by the execution of a stipulation between the applicant-petitioners and HRS. By the terms of the stipulation, CON 2748 was issued in full and each of the other applications was partially approved: CON 2696 was approved for a 105-bed facility, CON 2969 was approved for a 106-bed facility, and CON 2732 was approved for a 100-bed facility. The CONs were issued in accordance with the stipulation.
CON 2696 was issued on January 31, 1985.
On March 7, 1985, a 120.57 petition objecting to the issuance of CONS 2696, 2969, 2732 and 2748 was filed by Methodist Regional Hospital System, Inc., d/b/a Methodist Manor Nursing Home ("Methodist"). The petition, which demanded
that Methodist's own application be reviewed comparatively with the July 1983 applications, was referred by HRS to DOAH and designated as Case No. 85-0824.
On April 9, 1985, HRS amended Fla. Admin. Code Rule 10-17.016 to provide for new subdistricting of HRS District IV. Duval County, by the new rule (which is still in place) was divided into three subdistricts, with adjoining counties included in each subdistrict.
Methodist's petition was initially dismissed by HRS in accordance with a Hearing Officer's recommendation; however, such dismissal was reversed by the First District Court of appeals, which remanded the case for further hearing pursuant to an opinion dated September 24, 1986. Methodist Reg. Hos. System v. State, 497 So.2d 272 (Fla. 1st DCA 1986).
After Case 85-0824 was remanded, Hearing Officer Charles C. Adams entered an Order dated February 20, 1987, directing the applicants to file an indication within 30 days of their choice of "planning horizon" and planning subdistrict.
On March 16, 1987, Health Quest filed a notice in Case No. 85-0824 stating that it wished to proceed in Subdistrict 2 with a July 1986 planning horizon.
On March 20, 1987, Methodist filed a Notice of Voluntary Dismissal of its petition in Case No. 85-0824.
On June 8, 1987, HRS issued a Final Order in Case No. 85-0824.
The Final Order in Case No. 85-0824 states, in part, that:
Petitioner's petition for formal administrative proceeding is hereby DISMISSED.
The following Certificates of Need ("CON") issued by the Department thereby become final action of the Department:
CON No. 2732 to Beverly Enterprises for a 100 bed nursing home facility
in Subdistrict 1 of Duval County;
CON No. 2696 to Health Quest Management Corporation for a 105 bed nursing home facility in Subdistrict 2 of Duval County;
CON No. 2969 to Florida Convalescent Centers, Inc., for a 106 bed nursing home facility in Duval County.
The Final Order in Case No. 85-0824 was not appealed.
After HRS issued CON 2696 on January 31, 1985, Health Quest applied for and received three CONs to add beds to CON 2696: CON 4133 for 15 beds, CON 4674 for 30 beds and CON 5494 for 30 beds. The stated purpose of these additions was for Health Quest to build a 180-bed facility in Southwest Duval County.
Southwest Duval County is part of Subdistrict 2 of HRS District IV.
By application for CON 5653, filed on July 18, 1988, Health Quest sought expedited review from HRS for approval to divide the 180 beds received in CON 2696 (105 beds), CON 4133 (15 beds), CON 4674 (30 beds) and 5498 (30 beds), which were to have been constructed as a 180-bed facility in Subdistrict 2. Health Quest requested that it be allowed to transfer 60 beds to Careage II Healthcare Center, to be added to the 60 beds authorized by Careage's CON 4675. Approval of the application would result in two 120-bed nursing home facilities being developed in Subdistrict 2.
By CON 5657, issued November 16, 1988, HRS approved the transfer of CONs 4674 (30 beds) and 5498 (30 beds) from Health Quest to Careage.
By letter dated August 25, 1988, Health Quest advised HRS that it was amending its application for CON 5653. Instead of building a 120-bed facility in Subdistrict 2 with the remaining 120 beds, Health Quest now wanted to add 13 beds without any new construction to Health Quest's existing facility in Subdistrict 3 of HRS District IV, in Duval County, and add 60 beds by constructing a 60-bed addition to the same existing facility.
By letter dated September 6, 1988, HRS returned the application for CON 5653, stating that the proposal by Health Quest was not subject to expedited review.
In every CON application to add beds to, or divide beds from, the beds approved in CON 2696, Health Quest stated that the project was to be built in Southwest Duval County in Subdistrict 2, with the exception of the amended application at issue in this case.
At the time Duval County was divided into three subdistricts (see Finding of Fact 8), HRS had to determine, for inventory purposes, in what subdistrict beds which had previously been approved for all of Duval County were located, For existing nursing homes, the beds were allocated based on the facility's address. For beds which had been approved but the facility had not been built, HRS looked at final orders and at declarations by the applicant made either as part of an administrative hearing process or in letters indicating where the facility would be located.
The inventories are used to calculate the fixed need pools and to make the determination of whether additional beds are needed in each subdistrict.
Since the final order was issued in Case No. 85-0824, HRS has considered the beds approved by CON 2696 to be located in Subdistrict 2 for purposes of its inventory and need projections, based on the pleadings filed by Health Quest in Case No. 85-0824 (see Finding of Fact 11) and on the Final Order issued in Case No. 85-0824 (See Finding of Fact 14).
The 1988 Amendments to Chapter 381, Florida Statutes.
On September 29, 1987, Health Quest filed with HRS an application seeking expedited review for a proposal to divide CON 3278, authorizing a 180- bed nursing home facility in Sarasota County, into two components. One component was to be a 120-bed freestanding facility and another component was to be a 60-bed addition to an existing 53-bed nursing home operated by Health Quest.
HRS denied the application for expedited review based on its interpretation of Section 381.706(1)(e), Florida Statutes. HRS interpreted that
section to mean that the addition of beds to an existing facility could only be accomplished through batched, comparative review and not through expedited review.
In response to HRS's denial, Health Quest filed a petition for an Administrative Hearing and decided to pursue legislation which would make it clear that Health Quest could do what HRS was refusing to approve.
Health Quest hired a legislative lobbyist and Mr. Kevin Krisher, Health Quest's Vice President for Planning, wrote statutory language which, in his opinion, would allow Health Quest to accomplish what it wanted.
HRS initially opposed the proposed legislation. However, when it became clear that the proposed legislation would become law, HRS contacted Health Quest to propose modifications to the proposed statutory language.
After a negotiating session on May 30, 1988, Health Quest and HRS agreed on the language changes proposed by HRS. The changes proposed by HRS dealt with the language which is now codified in Section 381.705(3), Florida Statutes (1988 Supp.).
On May 31, 1988, Health Quest and HRS entered into a written agreement regarding the effect of the proposed legislation on Health Quest's application to divide CON 3278. The relevant parts of the agreement provide that:
RECITALS
Health Quest holds CON No. 3278 ("the CON") authorizing a 180-bed nursing home in
Sarasota County.
Health Quest operates a 53-bed nursing home ("the Facility") adjacent to the Lake Pointe Woods retirement complex in Sarasota.
On September 29, 1987, Health Quest filed with HRS an application seeking expedited review for its proposal to divide the CON into a 60-bed component and a 120-bed component. As set forth in the application, the 60-bed component is for an addition to the Facility and the 120-bed component is for a freestanding facility. Since on or before September 4, 1987, it has been the Department's position that such division or consolidation could be accomplished only through batched comparative review.
* * *
5. The Florida Legislature is considering the enactment of the Affordable Health Care Assurance Act of 1988 ("the Act"). The Act would amend Section 381.706(2), Florida Statutes, to add subsections (j) and (k), providing for expedited review of applica-
tions to divide a single approved facility or to consolidate two or more approved certificates of need into a single facility. The Act would also add Section 381.705(3) to limit the criteria for review of certain
applications filed under Section 381.706(2)(j) or 381.706(2)(k) and would add Section 381.710(2)(d) providing for extension of the validity period of CONs for which applications under Section 381.706(2)(j) or 381.706(2)(k) are filed.
* * * TERMS
HRS acknowledges that an applicant would be entitled, under the Act, to expedited review of applications not only to divide
or consolidate CONs but to do both at the same time, e.g., divide 60 beds from CON 3278 and consolidate these beds into the
existing beds at the Facility now operated by Health Quest.
At such time as the Act becomes law and Health Quest files an application ...
Upon approval of the application, Health Quest shall dismiss the DOAH proceeding and the District Court of Appeals proceeding involving the division of CON 3278.
The agreement was signed by J. Robert Griffin, HRS's Deputy Assistant Secretary for Regulation and Health Facilities, and Charles M. Loeser, Health Quest's Vice President and General Counsel.
The proposed statutory language was enacted by the legislature in Sections 20-22 of Chapter 88-294, Laws of Florida and is codified in Sections 381.705(3), 381.706(2)(j), (k), and 387.710(d), Florida Statutes (1988 Supp.).
The statutory language contained in paragraphs (j) and (k) of Subsection 381.706(2), Florida Statutes, is language proposed by Health Quest and the language did not change after HRS and Health Quest entered into the agreement of May 31, 1988.
After Chapter 88-294, Laws of Florida, was enacted and the provisions of sections 20-22 became effective, HRS approved Health Quest's application to divide CON 3278 and issued CON 5651A for a freestanding 120-bed facility and CON 5651B for a 60-bed addition to an existing facility.
Even though HRS approved Health Quest's application to divide CON 3278 and add beds to an existing facility, HRS now interprets the provisions of Section 381.706(2)(j) and (k), Florida Statutes, as not allowing for expedited review of an application to divide a CON and add a portion of the beds to an existing facility. HRS still views the provisions of 381.706(1)(e), Florida Statutes, as mandating full comparative review of any application seeking to add beds to an existing facility. This interpretation is the same interpretation HRS had prior to the passage of Chapter 88-294, Laws of Florida.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes.
This case involves two issues. One issue is whether the proposal by Health Quest to divide a CON and add beds to an existing facility is subject to expedited review under the provisions of Section 381.706, Florida Statutes (1988 Supp.). The other issue is whether the beds authorized by CON 2696 can be placed anywhere in Duval County or are limited to Subdistrict 2 of HRS District
IV. Each of these issues will be addressed separately below.
Subdistrict Location
Section 381.706(2), Florida Statutes (1988 Supp.), sets forth the types of projects which are subject to expedited review. One type of project is the "combination within one nursing home facility of the beds and services authorized by two or more certificates of need issued in the same planning subdistrict." Section 381.706(2)(j), Florida Statutes (1988 Supp.).
In this case, Health Quest is seeking to combine beds authorized by CON 2696 with beds authorized by CON 2243. The beds authorized by CON 2243 are located in a nursing home facility located in Subdistrict 3 of HRS District IV. Health Quest argues that the beds authorized by CON 2696 can be built anywhere in Duval County and, therefore, it should be allowed to combine the beds. HRS, however, argues that CON 2696 is limited to Subdistrict 2 of HRS District IV and, therefore, cannot be combined with beds in Subdistrict 3. A review of the facts surrounding the issuance of CON 2696 and of Health Quest's actions after obtaining the preliminary CON is persuasive evidence that HRS is correct in its conclusion.
HRS issued CON 2696 to Health Quest on January 31, 1985, pursuant to a settlement stipulation entered into between HRS, Health Quest and two other parties. Three other CONs were issued pursuant to the stipulation. CON 2696 was for beds to be located in "Duval County." The issuance of the four CONs was challenged by Methodist, which asked that its application for a CON be reviewed comparatively with that of the parties to the settlement stipulation. Methodist's petition was initially dismissed by HRS. On appeal, however, the First District Court of Appeal, in an opinion dated September 24, 1986, reversed HRS's dismissal of the Methodist petition and remanded the case to HRS. In response to an Order issued by the hearing officer assigned to hear the case, Health Quest filed a notice indicating that the site for its project was in Subdistrict 2 of HRS District 4. The indication of where Health Quest intended to locate the beds was needed to group the parties in the case for comparative review, since Duval County had been divided on April 9, 1985, among three planning subdistricts and was no longer one subdistrict. On March 20, 1987, Methodist filed a Notice of Voluntary Dismissal and, on June 8, 1987, HRS issued a Final Order stating that "the following Certificates of Need ("CON") issued by the Department thereby became final action of the Department" ... (b) CON No. 2696 to (Health Quest) for a 105-bed nursing home facility in Subdistrict 2 of Duval County."
Health Quest did not appeal HRS's Final Order. Also, in applications filed to first add beds to CON 2696 and then to transfer beds from CON 2696, Health Quest unwaveringly indicated that CON 2696 was in Subdistrict 2. Finally, HRS has carried the beds approved by CON 2696 in the inventory of beds for Subdistrict 2, and the inventory has had an effect on CONs which have been issued in Subdistrict 2 and 3.
Now that its plans have changed, Health Quest wants to undo what everyone understood was the location of CON 2696 and to argue that CON 2696 is not restricted to Subdistrict 2, but is valid for all of Duval County.
Health Quest argues that the Final Order issued by HRS stating that CON 2696 is located in Subdistrict 2 is null and void because, once Methodist filed the Notice of Voluntary Dismissal, HRS did not have jurisdiction to enter the Order. In support of its argument, Health Quest cites Randle-Eastern Ambulance Services, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978) RHPC, Inc. v. HRS,
509 So.2d 1267 (Fla. 1st DCA 1987); Humana of Florida, Inc. v. DHRS, 500 So.2d
186 (Fla. 1st DCA 1986); and Rudloe v. Department of Environmental Regulation,
517 So.2d 731 (Fla. 1st DCA 1987). While these cases are persuasive, HRS's argument that they are distinguishable from this case is compelling. None of the cases deals with a situation as exists here where over two years passed between the agency's preliminary action and the Notice of Voluntary Dismissal which led to the Final Order now being challenged. In those two years, the subdistrict locations were changed, an appellate court remanded the case for comparative review, and Health Quest filed a pleading in the case indicating in which subdistrict it planned to build the facility.
Even if HRS's final order were determined to be null and void, the fact remains that HRS needed to establish the location of CONs in Duval County when Duval County was divided among three subdistricts. In doing so, HRS relied on final orders and statements by the CON holders. Based on that, HRS placed CON 2696 in Subdistrict 2 for purposes of its inventory and Health Quest never once complained, until its plans changed. In fact, Health Quest acquiesced in this choice and so indicated on numerous occasions when it was seeking to add beds to, or divide beds from, CON 2696. CON 2696 is located in Subdistrict 2, regardless of whether HRS's final order is valid. See, Psychiatric Hospitals of Florida, Inc. v. Department of Health and Rehabilitative Services, 500 So.2d 190 (Fla. 1st DCA 1986).
Consolidation
Section 381.706, Florida Statutes (1988 Supp.), sets forth the types of health-care-related projects which are subject to review by HRS, and the type of review which is to be done depending on the type of project. Subsection (1) of Section 381.706, sets forth the projects subject to review; Subsection (2) sets forth the projects which are subject to "expedited review;" and Subsection
(3) sets forth the types of projects which are exempt from the provisions of Subsection (1) and do not have to be reviewed. "Expedited review" is defined as "the process by which certain types of applications are not subject to the review cycle requirements contained in Section 381.709(1), and the letter of intent requirements contained in Section 381.706(2)." Section 381.702(6), Florida Statutes (1988 Supp.).
Relevant to this case are the following provisions of Section 381.706, Florida Statutes (1988 Supp.):
381.706 Projects subject to review. - APPLICABILITY. - Unless exempt pursuant to subsection (3), all health-care-related pro- jects, as described in paragraphs (a)-(n), shall be subject to review and shall file an application for a certificate of need with the department. The department is exclusively responsible for determining whether a health- care-related project is subject to review under ss. 381.701-381.715.
(a) The addition of beds by new construc- tion or alteration.
* * *
(e) Any change in licensed bed capacity.
* * *
(2) PROJECTS SUBJECT TO EXPEDITED REVIEW.
- Unless exempt pursuant to subsection (3) projects subject to an expedited review shall include, but not be limited to:
* * *
Combination within one nursing home facility of the beds or services authorized by two or more certificates of need issued in the same planning subdistrict.
Division into two or more nursing home facilities of beds or services authorized by one certificate of need issued in the same planning subdistrict. Such division shall not be approved if it would adversely affect the original certificate's approved cost.
In this case, Health Quest is seeking to divide the beds authorized by CON 2696 into three components and combine two of the components with an existing facility. One component would be the addition of 13 beds without any new construction and the other component is the addition of 60 beds which would require new construction.
Notwithstanding the provisions of Sections 381.706(2)(j) and (k), HRS interprets Section 381-706(1)(e) as requiring full batched comparative review for any change in licensed bed capacity. If this interpretation is correct, then the provisions of Section 381.706(1)(a) are equally applicable here, since Health Quest is seeking to increase licensed bed capacity and add beds through new construction. For the reasons set forth below, the HRS interpretation appears to be incorrect.
As described above, Section 381.706 is divided into three subsections. In order for HRS's interpretation to be correct, these subsections would have to be mutually exclusive, i.e., projects listed in one subsection would not be included in the other subsections. A review of the section, however, reveals that the proper interpretation is that subsection (1) lists all the projects subject to review and subsections (2) and (3) list which of the projects listed in subsection (1) are subject to expedited review or exempt from review, as the case may be. Therefore, the fact that a project is listed in subsection doesn't necessarily mean that full batched comparative review is necessary; if the project is also listed in subsection (2), expedited review is applicable.
HRS also argues that the provisions of Section 381.706(2)(j) should be read to only apply to situations where an applicant is seeking to combine beds which have not yet been built. The statute appears clear that this limitation does not exist. As justification for its interpretation HRS offers an explanation based, in its opinion, on good health planning policy. The explanation is that it would be bad health planning to allow existing facilities to grow by simply adding CONs without full batched review. This reasoning would make sense if an applicant was adding newly needed beds to a facility. However, here the application is to add beds for which a CON has been granted and the need has been found to exist.
Under HRS's interpretation, an applicant who holds a 120-bed CON where the facility has not been built could add 60 beds approved by a different CON and build a 180-bed facility. On the other hand, an applicant holding a 120-bed CON where the facility has been built could not add the 60 beds approved by another CON without full batched comparative review. The end result under both scenarios is a 180-bed facility and HRS has failed to offer any valid reason for treating them differently.
Finally, the agreement entered into by HRS with Health Quest on the interpretation of the 1988 amendments to Section 381.706, Florida Statutes, and the subsequent approval of Health Quest's application pursuant to the agreement, is persuasive evidence of how the amendments should be interpreted. Validity period of CON 2696.
Since Health Quest's application involves the combination of beds which are not in the same subdistrict, the application is not subject to expedited review. Pursuant to the stipulation of the parties, the validity period of CON 2696 has expired.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that HRS issue a Final Order finding that Health Quest's application is not subject to expedited review and that CON 2696 has expired.
DONE AND ORDERED this 13 day of March, 1989, in Tallahassee, Leon County, Florida.
JOSE A. DIEZ-ARGUELLES
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-5079 & 88-5846
Rulings on Health Quest's Proposed Findings of Fact 1-2. Accepted.
3. First sentence accepted. Rest of paragraph is argument.
4-19. Accepted.
20-21. True, but irrelevant.
Rejected as argument.
Accepted.
Rejected as cumulative.
Rejected as cumulative and argument. Also, no competent evidence was presented which establishes why HRS's Final Order placed Beverly's CON in Sub- district 1; therefore, the arguments relating to Beverly's CON are conjecture.
Rejected as argument.
27-29. Rejected as argument. Also, the argument that moving the beds from Subdistrict 2 to Subdistrict 3 will have no effect is without merit. Health Quest would be awarded additional beds in Subdistrict 3 without having to compete for them, or, if Health Quest is correct that there is no need in Subdistrict 3, without having to show need for them. The argument that having the beds inventoried in Subdistrict 2 has had no effect because Subdistrict 2 now has too many beds is equally without merit. The question is what effect the inventory had in determining the amount of need in prior years when beds were awarded.
30. Rejected as argument. 31-37. Accepted.
38. Rejected as argument. 44-46. Accepted.
47-49. Subordinate to facts found. 50-59. Rejected as argument.
Rulings on HRS's Proposed Findings of Fact
1-22. Accepted. A number of these proposed findings of fact are subordinate to facts found.
23. Irrelevant.
24-26. Accepted.
Accepted.
Rejected as argument. 29-30. Accepted.
31-32. Recitation of testimony.
Irrelevant.
Accepted.
Accepted that this is HRS's view.
Rejected. HRS approved the Health Quest Sarasota CON.
37 . Accepted
First sentence rejected as not supported by the evidence.
Accepted that this reflects the testimony of the HRS witness. However, reject that the testimony serves as justification. The issue here is not adding new beds to a subdistrict, but in which facility the beds should be placed. Any time new beds are to be added all applicants can compete.
COPIES FURNISHED:
Charles M. Loeser, Esquire Health Quest Corporation
315 West Jefferson Boulevard South Bend, Indiana 46601-1586
Leslie Mendelson, Esquire Theodore E. Mack, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103
Tallahassee, Florida 32308
Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Steven W. Huss, Esquire 1017-C Thomasville Road Tallahassee, Florida 32303
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
HEALTH QUEST CORPORATION
(Duval County)
Petitioner,
CASE NO.: 88-5079
vs. 88-5846
CON NO.: 5653
DEPARTMENT OF HEALTH AND 2696
REHABILITATIVE SERVICES,
Respondent
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
RULING ON EXCEPTIONS FILED BY HEALTH QUEST
Health Quest excepts to the Hearing Officer's rejection of its proposed findings 26 through 30. The department relied on Health Quest's representations in performing its duties as the State's health planning agency. The exception is denied.
Health Quest excepts to the Hearing Officer's conclusion that the department had jurisdiction to enter the Final Order of June 8, 1987. The department's jurisdiction was founded on the judgment of the First District Court of Appeal wherein the department's initial decision was reversed and remanded for further proceedings. Methodist Regional Hospital System vs. State,
497 So2d 272 (Fla. 1st DCA 1986). The exception is denied.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:
An application for a CON to change the licensed bed capacity or an existing facility must be comparatively reviewed in the appropriate batching cycle.
Because Health Quest seeks to divide a CON and add beds authorized in the CON to a licensed nursing home, Section 381.706(2)j and k, Florida Statutes (1988 Supp.) are not applicable.
Based upon the foregoing, it is
ADJUDGED, that that CON 2696 be terminated and that CON 5653 be denied. DONE and ORDERED this 9th day of May, 1989, in Tallahassee, Florida.
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services
by Deputy Secretary for Programs
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 HRS, AND A SECOND COPY, ALONG WITH 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 PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED
COPIES FURNISHED TO:
Theodore Mack, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, FL 32308
Charles M. Loeser, Esquire Assistant General Counsel
315 W. Jefferson Boulevard South Bend, Indiana 46601
Jose A. Diez-Arguelles Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
FALR
Post Office Box 385 Gainesville, FL 32602
Janie Block (PDDR)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 12th day of May, 1989.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
| Issue Date | Proceedings |
|---|---|
| Mar. 13, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 09, 1989 | Agency Final Order | |
| Mar. 13, 1989 | Recommended Order | Recommended that application not subject to expedited review. Application involved combination of beds not in the same subdistrict. |
