STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HEALTH CARE AND RETIREMENT ) CORPORATION OF AMERICA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 88-5287
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
) CROSS KEY MANOR, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5288
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on February 14-16, 1989, in Tallahassee, Florida, before Veronica D. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Case No. 88-5287 and Case No. 88-5288 were consolidated for purposes of hearing as the actions involve the comparative review of the applications of the two Petitioners in regards to a certificate of need for eighteen nursing hone beds in the Lee County area.
APPEARANCES
For Petitioner Alfred W. Clark, Esquire
Health Care 1725 East Mahan Drive, Suite 300 and Retirement Post Office Box 623 (32302) Corporation: Tallahassee, Florida 32308
For Petitioner James M. Barclay, Esquire Cross Key Manor: Cobb Cole & Bell
315 South Calhoun Street, Suite 500 Tallahassee, Florida 32301
For Respondent Richard A. Patterson, Esquire Department of Assistant General Counsel Health and Department of Health and Rehabilitative Rehabilitative Services Services: 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
STATEMENT OF THE ISSUES
The main issue in these proceedings is whether a certificate of need for the remaining eighteen nursing home beds to be located in Lee County in January 1991, should be granted to either of the two Petitioners, who dispute the Department of Health and Rehabilitative Services' determination that their respective applications should be denied. The parties have agreed that the criteria at issue in these proceedings are Section 381.705 (1)(a) - (1)(c), (1)(e), (1)(h), (1)(i), (1)(m) and (1)(n), Florida Statutes (1987). Section 381.705(1)(h), Florida Statutes is at issue to the extent that it relates to the availability of resources and the extent to which the proposed services will be accessible to all residents of the service district.
PRELIMINARY STATEMENT
In May of 1988, seven certificate of need applications were filed with the Department of Health and Rehabilitative Services (hereinafter the Department) for the purpose of obtaining a certificate of need to establish additional nursing home beds in Lee County, Florida. All seven applications were reviewed by the Department on a competitive and comparative basis. On September 23, 1988, the Department published its intent to grant the application filed by Surrey Place of Lee County for sixty of the available seventy eight beds, and to deny the other applications.
Several of the applicants who were denied a certificate of need filed petitions challenging the Department's proposed action. These cases were consolidated before the Division of Administrative Hearings on December 2, 1988. The original final hearing date was continued at the request of all parties except for Surrey Place of Lee County, who objected to the continuance.
However, due to schedule conflicts with other scheduled certificate of need hearings and a finding that a continuance would not effect future batching cycles, the case was rescheduled to February 1989.
Prior to hearing, the other applicants who had requested formal administrative hearings, dismissed their petitions. Subsequent to the receipt of their requests for dismissal, a Petition to Intervene and Motion to Stay was received from National Healthcorp, L.P. on February 8, 1989. Argument was heard on these pleadings on February 10, 1989. They were orally denied on February 12, 1989, and were formally denied in writing on March 14, 1989. At the time the hearing was held, the Department's intent to grant sixty beds to Surrey Place of Lee County was no longer in dispute. The issues brought to hearing involved only the eighteen beds remaining in the fixed need pool for Lee County in the 1991 planning horizon.
During the hearing, the Petitioner Health Care and Retirement Corporation of America, Inc., presented five witnesses. All of these witnesses gave opinion testimony which was considered by the Hearing Officer as expert opinion in the designated areas: Milo Bishop (health care planning and development); Al Robbins (nursing home administration, operation and quality of care); Bruce
Schroeder (nursing home financial feasibility and analysis); Stan Fouts (nursing home administration and operation); and Paul Sieben (nursing home development, architecture, construction and operation). The interest of each witness in the outcome of the case was given great weight in these proceedings. Seven exhibits were submitted by Petitioner Health Care and Retirement Corporation of America, Inc. HCR Exhibit 4 was admitted over the objection of the other parties for the purpose of demonstrating that an eighteen bed request is an identifiable portion of the proposed project.
The Petitioner Cross Key Manor called seven witnesses, who gave opinion testimony that was considered in the same manner as the expert opinions rendered by other experts in this case. The names of the witnesses and their offered areas of expertise are as follows: Lee Bowers (nursing home development and administration); Ed Slampak (nursing home administration); Ivy Sommerbell (quality assurance and utilization review and nursing); Gail S. Buck (health planning); Robert A. Beiseigel (financial analysis and feasibility with emphasis on the provisions of health care services) and Edward L. Meadows (nursing home architecture). Margaret Petty was not presented as an expert witness for purposes of this proceeding. Petitioner's tender of Cross Key Exhibits A-C were accepted into evidence. The updated tables 3,7,8, and 25 were admitted over the Respondent's objection.
The Respondent, Department of Health and Rehabilitative Services, presented one witness at hearing. The witness, Elizabeth Dudek, a health facilities and services consultant supervisor with the Department, was accepted as an expert in health planning and certificate of need review. By stipulation, the Respondent was allowed to present the testimony of Thomas C. Martz, an Architect II with the Department and an expert in nursing home architecture, by deposition after the hearing. The deposition was filed with the Division on March 13, 1989. The Department's Exhibits 1 through 5 were admitted into evidence.
A transcript of the hearing was filed with the Division of Administrative Hearings on March 13, 1989. All of the proposed recommended orders were timely filed by the parties. The post hearing motions are addressed and resolved in this Recommended Order. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.
FINDINGS OF FACT
The Petitioner, Health Care and Retirement Corporation of America, Inc., (hereinafter HCR) is a wholly-owned subsidiary of Owen-Illinois Corporation. The subsidiary company is in the business of designing, developing, constructing and operating nursing homes. HCR operates over one hundred and thirty facilities in nineteen states, including eleven nursing homes in Florida. Several projects are under development in Florida. One of these is a ninety bed nursing home in Fort Myers, Florida.
Crossgates Medical, Inc. and K/Keystone, Inc., are the sponsors of the proposal submitted by the Petitioner Cross Key Manor (hereinafter Cross Key). These corporations formed a general partnership known as Lehigh Acres-C.K. Joint Venture, a Florida general partnership, to renovate and develop the former hospital facility into a nursing home for the area. The nursing home facility began operation in January 1986, and currently contains fifty seven skilled beds, fifty three intermediate care beds, and twenty four ACLF beds. The partnership does not own any other nursing homes in Florida.
Existing Facilities
HCR has a ninety bed nursing home under development in Fort Myers, Florida. The current design for the physical structure consists of five pods around a central core. Each pod is designed to accommodate up to twenty patient beds. The most efficient design utilization requires that a sixth pod be added to the central core. If an eighteen bed addition were to be approved, a sixth pod would be built. The end result would be an integrated facility which could eventually provide nursing home services for the one hundred and twenty patients needed for the facility to function at its highest operational standards.
The physical facility which houses Cross Key originally functioned as a hospital within the Lehigh Acres community. Lehigh Acres is a planned, self- contained development located twenty miles east of Fort Myers, Florida. The population is twenty two thousand, and fifty five to sixty per cent of this population is over sixty years of age. When a new hospital was built upon adjacent lands, the old hospital structure was renovated for use as a nursing home. The building currently has three wings: Wing A contains fifty seven skilled beds, Wing B has fifty three intermediate beds, and Wing C has twenty four ACLF beds. If an eighteen bed addition for private pay nursing home beds were to be approved, the new beds would be located in Wing C. This wing would be renovated to provide for a nurse's station, storage, and the necessary utility rooms. The area would contain ten private rooms and four semi-private rooms. The ACLF patients who currently occupy the area would be moved to Cross Key's proposed ACLF building.
Need in Relation to the District and State Health Plan
There are eighteen nursing home beds remaining in the fixed need pool in January 1991. The Petitioner HCR seeks to amend its application to reflect a request for the eighteen beds instead of the twenty beds originally sought when the application was filed for review by the Department of Health and Rehabilitative Services (hereinafter the Department).
This amendment to HCR's application should be allowed by the Hearing Officer because it was proved during hearing that there was no public notice given by the Department that its policy regarding a "downsizing" or "partial approval" of an application had changed. Prior to the change in policy, the Department had an agency practice and policy of unilaterally downsizing applications and granting partial approvals, without requiring an applicant to submit information relating to an identifiable portion during the application process. As HCR was unaware of the new policy which required the submission of additional data regarding the identifiable portion during the review process, and had relied upon its prior course of dealings with the Department, the amendment is accepted as an application "update."
In addition to the "downsizing", HCR seeks to change its project proposal in the following manner: by changing its original proposal of providing new beds for private pay to new beds for Medicaid services; by changing the purpose of the addition from a proposed Alzheimer's disease care unit to a unit which would provide services required for patients with brain stem or spinal cord injuries, or patients with long term rehabilitation needs. Many of these patients would be under sixty five years of age, and would require Medicaid services. These amendments should not be allowed because such changes do not allow for the comparative and competitive review of certificate of need applications, as required by law.
Under the applications submitted by the petitioners for comparative review with the other applications, they each sought bed additions for the expressed purpose of providing new beds for private pay patients. These proposals do not meet the district health plan requirement that one third of the new beds be dedicated for use for Medicaid patients.
Existing Health Care Services
The deficiencies of service in the Lee County area are in Lehigh Acres, followed by the North Fort Myers area, and lastly, the Central Fort Myers area. Cross Key is located in Lehigh Acres. HCR is located in the Central Fort Myers area.
There is a need for more Medicaid beds throughout the Lee County area. The need for nursing home beds for patients with Alzheimer's disease was provided for by the award of a certificate of need for sixty beds to Surrey Place of Lee County during the competitive and comparative review. The need for private pay beds was met in the Fort Myers area during the review process.
Each Applicant's Ability to Provide Quality of Care
HCR and Cross Key are both able to provide quality of care. HCR has a record of two superior and five standard quality ratings in the eight nursing homes currently operating in Florida. An independent quality assurance monitor reviews the quality of care and reports its findings to corporate management. Cross Key has a current quality rating of standard in its facility. Some of the partners in Cross Key have separate ownership and managerial interests in Bruzenski Nursing Home of Sarasota, which holds a superior rating.
Shared Health Care Resources
Neither project offers economies and improvements in service derived from the operation of joint ventures, cooperatives, or shared health care resources.
Accessibility and Availability of Resources
The services proposed by HCR will be accessible to all residents of the service district. The Cross Key proposal promotes service access to residents in the Lehigh area. This limitation occurs because of the nursing home's location and the current needs of the population within that area of the county. Accessibility in both proposals was initially limited to private pay patients. The applications do not provide access to Medicaid or medically indigent patients.
Both facilities will be able to attract and maintain the staff necessary to operate their proposed facilities.
Cross Key's ability to fund the operating expenses for the additional eighteen beds is directly contingent upon its ability to fill these beds with private pay patients. Revenues from the addition are the only resource listed for the required operating expenditures. It is important to note, however, that these patients will pay in advance and that the vast majority of administrative costs have already been borne by the facility as a one hundred and ten bed facility. Because the proposed addition will not operate in isolation from the rest of the facility, it should also be noted that a reduction in Medicaid reimbursement could occur which might effect the revenues of the facility.
HCR has the capital resources available to fund the required capital and operating expenses.
Financial Feasibility of the proposals
Both HCR and Cross Key have demonstrated immediate financial feasibility for the funding of their respective projects. HCR has sufficient funds in hand to fund its project costs. Cross Key proposes to contribute one hundred per cent of the proposed project costs, which is twenty thousand dollars. In its application, Cross Key represented that the addition would not exceed the twenty thousand dollar amount.
The pro forma projections of revenues and expenditures for the first two years of operation shows a loss by HCR of $51,736.00 in the first year, and a projected net profit of $8,308.00 in the second year.
The pro forma projections by Cross Key show net profits in the first year of $60,889.00 and $63,940.00 in the second year. The updated pro forma is inconsistent with the proposed design for the converted space, but these projections provide less revenue than the proposed design. The reason is that the proposed design contemplates more private rooms than semi-private rooms. Patients pay more per bed for private room settings.
Costs and Methods of Proposed Construction
The project costs and the methods of construction proposed by HCR are reasonable. Although the cost proposals submitted were for a twenty bed addition, some of the equipment costs will be reduced now that the proposal has been amended to reflect a request for an eighteen bed certificate of need. The equipment cost is reduced by $8,000.00. A correlating reduction in the interest to be paid out during construction was not demonstrated in the summary found in Table 20 of HCR's application. The construction costs of $270,000.00 do not appear to be reduced as a result of the "downsizing" request to eighteen beds instead of the original twenty beds.
Cross Key submitted insufficient information for a determination to be made as to whether the costs and methods of the proposed construction and conversion are appropriate. The proposal for eighteen additional beds would increase the size of the nursing home to one hundred and twenty eight beds, which is eight beds beyond the one hundred and twenty bed size of maximum efficiency. The additional beds require the construction of a third nurses' station, as well as other utility rooms. The plans submitted by Cross Key did not locate the nurses' station or the required utility rooms.
In the architectural review of the submitted plans, the Department was able to determine that Cross Key proposes to convert ten private rooms and four semi-private rooms to nursing home service. The wing containing the rooms is approximately 3,600 square feet in size. This entire space must comply with nursing home standards. Without more specific plans for a determination, the Department's architect was unable to render an opinion that the proposed project complies with the required standards. Therefore, the proposed plans could not be approved. Cross Key failed to provide the necessary information to the Department's architect which could assist him in a determination based upon the plans, even after an omissions request was sent that informed Cross Key of its need to identify all rooms involved in the conversion.
Cross Key represented in its application that twenty thousand dollars was the amount of money necessary to complete the conversion of the ACLF rooms to nursing home beds. It was proposed that this amount of money would cover the costs of construction, which included a nurses' station and the additional utility rooms. The new furnishings and equipment were also included in this cost estimate. Without more information regarding the specific construction plans, and the costs for that portion of the conversion, the Department's architect was unable to render an opinion that the project could be accomplished for the costs set forth in the application.
Care to Medicaid and Medically Indigent Patients
Both HCR and Cross Key propose to serve only private pay patients in the new nursing home beds. A review of HCR's original application reveals that even if these additional beds remained as private pay beds, the facility would still exceed the total facility minimum of thirty three and one third per cent Medicaid participation. In the past, Cross Key has also exceeded the minimum Medicaid requirements, even though approval of the original facility was not conditioned on such a commitment. Cross Key is under no commitment to provide indigent care, and continues to seek beds which are not required to prove such care.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.57(1) and 381.709(5), Florida Statutes.
HCR and Cross Key, as the applicants for a certificate of need, each have the burden of demonstrating entitlement to a certificate. Boca Raton Artificial Kidney Center, Inc., v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. 1st DCA 1985), and Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).
Section 381.705, Florida Statutes (1987), and Rule 10-5, Florida Administrative Code, establish the criteria to be used in evaluating applications for certificates of need. Balsam v. Department of Health and Rehabilitative Services, 486 So.2d 1341 (Fla. 1st DCA 1986).
The weight given to established criteria will vary in each case, depending on the particular circumstances. Collier Medical Center, Inc., v. Department of Health and Rehabilitative Services, 462 So.2d 83 (Fla. 1st DCA 1985). In this case, the parties entered into a prehearing stipulation in which it was agreed that specific statutory criteria would be used for review purposes. The parties are bound by this stipulation. Health Care and Retirement Corporation of America v. Department of Health and Rehabilitative Services, 516 So.2d 292 (Fla. 1st DCA 1987)
After balancing of the statutory criteria reviewed in this case, it is determined that the HCR application for an eighteen bed addition and the Cross Key application to convert twenty four ACLF beds to eighteen nursing home beds should be denied.
In addition to the reduction in bed numbers, HCR attempted to change many of the concepts within its application after the application went through the review process. To allow such changes during the formal administrative
hearing violates Rule 10-5.010(2)(b), Florida Administrative Code, which provides:
Subsequent to an application being deemed complete by the Office of Regulation and Health Facilities, no further application information or amendment will be accepted by the department.
This rule was recently interpreted in Hialeah Hospital, Inc. v. Department of Health and Rehabilitative Services, 9 F.A.L.R. 2363 (F.O. 5-1-87), to prohibit the submission of additional information over which the applicant had control. The purpose of the rule is to insure that the Department is provided the information necessary to evaluate a proposed project during the comparative and competitive review. Substantial change to important portions of an application which might cause the Department to decide the application differently cannot be presented at formal hearing.
HCR's application proposes an additional pod to provide services for private pay patients with Alzheimer's disease. This proposal for another pod was made even though the facility design contemplates another ten beds in the fifth pod, which is already built. The reason given for the sixth pod to house the new eighteen beds was that the eighteen Alzheimer patients have special needs and requirements that make the additional construction necessary. In the review, the local health plan need for facilities with services for Alzheimer patients was met when the sixty bed award was made to Surrey Place of Lee County. As a result, the needs identified under HCR's application have been met elsewhere during the same batching cycle and review process. Great weight is given to Section 381.705(1)(b), Florida Statutes, and it is determined that the need does not exist in this review for the beds identified in HCR's application.
The information submitted by Cross Key during the application process did not comply with Section 381.705(1)(m), Florida Statutes. In its architectural review of the conversion plans, the Department was unable to determine whether the space to be converted would comply with the required nursing home standards. As the burden is upon the applicant to demonstrate entitlement, this burden remained unmet by Cross Key.
Although Cross Key's facility has exceeded the minimum Medicaid requirements in the past, none of the existing beds are conditioned on a commitment to Medicaid or medically indigent patients. The Cross Key proposal for more beds not only seeks private pay beds, but requires them in order to make the conversion financially feasible.
Great weight is given to the criteria of Section 381.705(1)(n), Florida Statutes, which requires a review of an applicant's "past and proposed provision of health care services to Medicaid patients and the medically indigent."
The State and Local Health Plans currently seek a commitment from nursing homes to provide Medicaid certified beds. To allow a nursing home in a self-contained development such as Lehigh Acres to obtain additional beds without a Medicaid commitment, could reduce the overall health care services provided in this community in the future. If the nursing home later chooses to alter its current voluntary policy of providing access to Medicaid patients, the facility may become available to provide services only to those patients who can afford to pay for them.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the Department enter its Final Order denying HCR's and Cross Key's respective applications for Certificate of Need No. 5628, and Certificate of Need No. 5630.
DONE and ENTERED this 16th day of June, 1989, at Tallahassee, Florida.
VERONICA E. DONNELLY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989.
APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-5287 and 88-5288
Petitioner HCR's proposed findings of fact are addressed as follows:
Accepted. See HO #1.
Accepted. See HO #2.
Accepted. See HO #4.
Accepted.
Accepted, except for the request for downsizing to 18 beds. See Preliminary Matters and HO #5.
Accepted. See HO #3.
Rejected. See HO #7.
Accepted. See HO #4 and HO #23.
Accepted. See HO #4.
Rejected. Not at issue in proceeding. See stipulation.
Rejected. Not at issue. See stipulation.
Rejected. See HO #7.
Rejected. Not at issue. See stipulation.
Rejected. See HO #7.
Rejected. See HO #7.
Accepted.
Accepted.
Rejected. Not at issue. See stipulation.
Accept first sentence. See HO #8. Reject the rest. See Conclusions of Law.
Accepted. See HO #11.
Rejected. See HO #11.
Accepted. See HO #12.
Accepted. See HO #16.
Accepted. See HO #13.
Rejected. See HO #14.
Rejected. See HO #15.
Accepted. See HO #13.
Accepted. See HO #17.
Accepted, except for finding that beds couldn't be filled with private pay patients. Contrary to fact.
Rejected. Not required in review, as stipulated.
Accepted.
Accepted, but see HO #19.
Accepted.
Rejected. Conclusionary.
Rejected. See HO #19.
Rejected. See HO #20.
Accepted. See HO #8.
Accepted. See HO #3.
Reject the suggestion that less costly construction be proposed. The rest is accepted. See HO #21.
Rejected. See HO #23.
Rejected. See HO #24.
Accepted. See HO #24.
Rejected. Contrary to fact.
Rejected. Legal argument as opposed to factual finding.
Accepted.
Accepted. See HO #5 - #7; HO #20.
Petitioner Cross Key's proposed findings of fact are addressed as follows: 1-3. Accepted. See Preliminary Matters.
Accepted.
Accepted.
6-7. Accepted. See Preliminary Matters.
Accepted.
Accepted. See Preliminary Matters.
Accepted.
11-14. Accepted. See HO #1.
15-17. Accepted. See HO #2.
Rejected. See HO #5.
Accepted.
Accepted, but See HO #20.
Accepted. See HO #5.
Rejected. See HO #5 - #7.
Accepted.
Accepted.
Accepted, except that location has always been evident. See Exhibit 6 in HCR's application.
Accepted.
Accepted.
28-31. Accepted. See HO #4.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted. See HO #5.
Accepted.
Accepted.
Rejected. See HO #13.
Rejected. See HO #8.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected. Irrelevant.
Rejected. Conclusionary.
Rejected. Conclusionary.
Accepted.
Rejected. Conclusionary.
Accepted.
Accepted.
Rejected. Contrary to fact. Conclusionary as to term "existing facility."
Rejected. See HO #8.
Rejected that HCR does not meet guideline. Contrary to fact. The rest of paragraph 65 is accepted.
Accepted. See HO #5.
Accepted.
Accepted. See Conclusions of Law.
Accepted.
Accepted.
Accepted, except for last sentence. Conclusionary.
Accepted. See HO #11.
Accepted. See HO #11.
Accepted.
Accepted. See HO #11.
Accepted. See HO #11.
Rejected. Irrelevant.
Rejected. Irrelevant.
Accepted. See HO #11.
Rejected. Not probative, immaterial.
Accepted. See HO #12.
Accepted. See statement of the Issues.
Accepted. See HO #14.
Accepted, except for last sentence. Contemplates facts not in evidence.
Accepted.
Accepted. See HO #15.
Accepted.
Accepted.
Accepted.
Rejected. Irrelevant and contrary to fact.
Accepted.
Rejected. Conclusionary.
Accepted.
Rejected. See HO #20 and HO #23.
Accepted. See HO #17.
Accepted. See HO #17.
Accepted. See HO #23.
Accepted. See HO #17.
Accepted. See HO #17.
Accepted.
Accepted.
Accepted.
Rejected. See HO #18.
Accepted.
Accepted.
Reject first sentence. See HO #20. The rest is accepted.
Rejected. See HO #21 and #22.
Accepted.
Accepted.
Respondent's proposed findings of fact are addressed as follows:
Accepted. See Preliminary Matters.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted. See Preliminary Matters.
Accepted. See Preliminary Matters.
Accepted. See HO #5.
Rejected. Irrelevant. See Prehearing Stipulation.
Accepted.
Accepted.
Rejected. See HO #23.
Accepted. See HO #21 and #22.
COPIES FURNISHED:
Alfred W. Clark, Esquire 1725 Mahan Drive, Suite 300 Post Office Box 623 Tallahassee, Florida 32308
James M. Barclay, Esquire Cambridge Centre, Suite 200
215 East Virginia Street Tallahassee, Florida 32301
Richard Patterson, Esquire Department of Health and
Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive
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
John Miller, Esquire General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, INC.,
Petitioner,
CASE NO.: 88-5287
vs. CON NO.: 5628
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/ CROSS KEY MANOR,
Petitioner,
CASE NO.: 88-5288
vs. CON NO.: 5630
DEPARTMENT OF HEALTH AND 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
CARE AND RETIREMENT CORPORATION OF AMERICA, INC. (HCR)
HCR excepts to the Hearing Officer's findings that HCR improperly amended its application during the Section 120.57 proceedings. The challenged findings are supported by competent, substantial evidence; therefore, the exceptions are denied.
RULING ON EXCEPTIONS FILED BY CROSS KEY MANOR
Cross Key manor excepts to the Hearing Officer's findings that its plans did not comply with nursing home licensure standards and that Cross Key might alter its policy of providing access to Medicaid patients. The challenged findings are supported by competent, substantial evidence; therefore, the exceptions are denied.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except for the legal conclusion in paragraph 6 that HCR should be allowed to "downsize" its application because the department did not give public notice of its policy regarding "downsizing". This conclusion is rejected. Advance notice of intent to use non-rule policy is not required. St. Francis Hospital vs. State, 11 FALR 1071 (HRS 2/2/89).
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.
Based upon the foregoing, it is
ADJUDGED, that HCR's application for certificate of need number 5628 be DENIED. It is further adjudged that Cross Key Manor's application for certificate of need number 5630 be DENIED.
DONE and ORDERED this 3 day of August, 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 A 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:
Veronica E. Donnelly Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Alfred W. Clark, Esquire 1725 Mahan Drive, Suite 300 Post Office Box 623 Tallahassee, FL 32308
James M. Barclay, Esquire COBB COLE & BELL
315 South Calhoun Street Suite 500
Tallahassee, FL 32301
Richard Patterson, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, FL 32308
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 9th day of Aug, 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 |
|---|---|
| Jun. 16, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 03, 1989 | Agency Final Order | |
| Jun. 16, 1989 | Recommended Order | The committment from nursing homes to provide Medicaid certified beds must be in each application regardless of past history of exceeding requirements |
