STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MERIDIAN HEALTH CARE, INC., )

)

Petitioner, )

)

vs. ) Case NO. 90-2768

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, ) and ARBOR HEALTH CARE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Settlement Stipulation filed by the parties, Meridian Healthcare, Inc., Petitioner, Arbor Health Care Company and the Department of Health and Rehabilitative Services, Respondents, and the Notice of Withdrawal of its application for CON 6104 filed by Arbor Health Care Company came before the Division of Administrative Hearings and its duly designated Hearing Officer, Daniel M. Kilbride, on June 13, 1990 in Tallahassee, Florida.

The Stipulation and Notice have been fully considered. The following appearances were entered:

APPEARANCES

For Petitioner: Thomas W. Stahl, Esquire

Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, FL :32303

For Respondent: Thomas Cooper, Esquire DOT Assistant General Counsel

Department of Health and Rehabilitative Services

2727 Mahan Drive

Tallahassee, FL :32308

For Respondent: John L. Wharton, Esquire Arbor Health Rose, Sundstrom & Bentley Care Company 2548 Blairstone Pines Drive

Tallahassee, FL 32301 STATEMENT OF THE ISSUES

Whether the Department of Health and Rehabilitative Services should award a CON for 59 nursing home beds in Brevard County to Petitioner or Respondent, Arbor Health Care Company under the provisions of Section 381.701, et. seq., Florida Statutes (1989).

PRELIMINARY STATEMENT

For the Second Nursing Home Batching Cycle for 1989, Petitioner and Arbor Health Care Company submitted an application for a Certificate of Need (CON) for

59 nursing home beds in Brevard County, Florida. On March 15, 1990, Petitioner's application for CON NO. 6102 was preliminarily denied. The first published notice of the denial appeared in Vol. 16, No. 12, of the Florida Administrative Weekly. Petitioner filed its Petition for Formal Hearing on April 13, 1990. On May 3, 1990, this matter was referred to the Division of Administrative Hearings in order to conduct the formal hearing and the Notice of Filing was issued by the Clerk of the Division on the same day. On May 14, 1990, this Hearing Officer issued a Notice of Hearing and Initial Prehearing Order to the parties. On May 30, 1990, the parities filed the Settlement Stipulation and Request for Recommended Order on May 30, 1990. Respondent, Arbor Health Care Company filed its Notice of Withdrawal, also on May 30, 1990.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Arbor Health Care Company agrees to withdraw from further consideration by HRS, Arbor's application for CON No. 6104.

   
   

2. HRS agrees to grant Meridian Healthcare, Inc.'s application for CON No. 6102 and that said application sufficiently satisfies the applicable statutory and rule criteria contained in Chapter 381, Florida Statutes, and Rule 10-5.011, Florida Administrative Code.

   
   

3. Meridian Healthcare, Inc. agrees to accept CON No. 6102 subject to the following conditions, which shall be placed upon the CON:

   
   

   1. Direct care staff to patients ratio. The ratio is as follows: 2.82 for the 59 additional beds (assuming 95% occupancy);

      
      

   2. Percent of a particular population subgroup to be served. The population subgroup along with the percent to be served is as follows: 40% Medicaid, in the total facility;

      
      

   3. Special programs, listed as: Telephone Reassurance, Assessment Counseling and Referral and Short Stay Care, Program for Alzheimer and Related Disorders, AIDS Care;

      
      

   4. Qualifications of staff described as follows: The Inservice Coordinator is a Registered Nurse with training experience;

      
      

      D. Type of staff identified by position below: Unit Director for Program for Alzheimer and Related Disorders, Alzheimer Therapeutic Programming Aide.

      
      

4. Each party agrees to pay its own costs and attorneys' fees.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

6. In order to be entitled to a formal administrative hearing, Florida law requires that a party's; "substantial interest" are determined by an agency. Section 120.57, Florida Statutes (1989). Under this law, the Division of Administrative Hearings is charged with the responsibility to conduct the formal hearing. However, this tribunal is limited in this case to determining whether a CON should or should not be issued to Petitioner. As cogently stated by the First District Court of Appeal in Department of Environmental Regulation vs. Falls Chase Special Taxing District, 424 So. 2d 787 (Fla.1st DCA 1982), review denied 436 So. 2d 98 (Fla. 1983):

   
   

   An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction. When acting outside the scope of its delegated authority, an agency acts illegally and is subject to the jurisdiction of the courts when necessary to prevent encroachment on the rights of individuals.

   
   

7. Since the parties have stipulated the CON should be granted to Petitioner and Respondent, Arbor Health Care Company has withdrawn from further consideration by HRS its application for CON No. 6104, the issues before this tribunal are now moot. No disputed issues of material fact remain to be resolved and this tribunal no longer has jurisdiction over this matter. See: Humana of Florida, Inc., vs. Department of Health and Rehabilitative Services, 500 So. 2d 186 (Fla.1st DCA 1986).

   
   

   RECOMMENDATION

   
   

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered:

   1. Dismissing with prejudice the application by Arbor Health Care Company for CON No. 6104 in the November 1989 batching cycle.

      
      

   2. Granting Meridian Healthcare, Inc.'s application for CON No. 6102 for

59 community nursing home beds subject to the conditions set forth in paragraph

3 in the Findings of Fact in this Recommended Order and in accord with the Settlement Stipulation agreed to by the parties.

DONE AND ENTERED this 14th day of June, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1990.

COPIES FURNISHED:

Thomas Cooper, Esquire Assistant General Counsel, Department of Health and

Rehabilitative Services 2727 Mahan Drive

Tallahassee, FL 32308

Thomas W. Stahl, Esquire Robert Newell, Jr., Esquire Newell and Stahl

817 North Gadsden Street Tallahassee, FL 32303-6313

John L. Wharton, Esquire Rose, Sundstrom & Bentley 2548 Blairstone Pines Drive Tallahassee, FL 32301

Ralph Hronjak

Post Office Box 840 Lima, OH 45802

Sam Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Docket for Case No: 90-002768

Orders for Case No: 90-002768