STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HCA HEALTH SERVICES OF FLORIDA, ) INC., d/b/a HCA L.W. BLAKE )

HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE No. 90-7407

)

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, and ) MANATEE HOSPITALS AND HEALTH ) SYSTEMS, INC., d/b/a MANATEE ) MEMORIAL HOSPITAL, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida, on December 27, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on a Joint Motion To Dismiss Amended Petition, filed by the Respondents, Department of Health and Rehabilitative Services and Manatee Memorial Hospital.

APPEARANCES

For the Petitioner: Elizabeth Mc Arthur, Esquire HCA L.W. Blake Aurell, Radey, Hinkle & Thomas

Hospital Suite 1000, 101 N. Monroe Street Post Office Drawer 11307 Tallahassee, Florida 32302

For the Respondent: Edward G. Labrador, Esquire Department Department of Health and

Rehabilitative Services 2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308

For the Respondent: Robert A. Weiss, Esquire Manatee Memorial Parker, Hudson, Rainer & Dobbs Hospital The Perkins House

118 N. Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue for consideration at this hearing was whether Petitioner, HCA Health Services of Florida, Inc., d/b/a HCA L. W. Blake Hospital has standing to oppose the Department's issuance of CON #6258, for a medical office building, to Manatee Hospitals and Health Systems, Inc., d/b/a Manatee Memorial Hospital.

CONCLUSIONS

By Petition For Formal Hearing, filed with the Department of Health and Rehabilitative Services, (Department), on October 5, 1990, L. W. Blake Hospital (Blake), opposes the Department's approval of a Certificate of Need (CON) number 6258 to Respondent, Manatee Memorial Hospital (Manatee) to acquire a medical office building via a long-term ground lease on the basis that the proposed facility will adversely impact Blake's medical office building currently operating on its campus. Thereafter, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

Respondents thereafter filed a Joint Motion to Dismiss Blake's Petition and a hearing was set on the motion for December 19, 1990. On that date, at the hearing, at which counsel for all parties were present, Blake filed a Motion For Leave to Amend its Petition, which was granted. The Amended Petition was filed on December 21, 1990, and the Respondents' Joint Motion to Dismiss the Amended Petition was filed on December 27, 1990. The instant hearing was held on that Joint Motion.

In its Amended Petition, Blake seeks standing on it's assertion that "it appears" Manatee intends to provide new inpatient services in the new facility without Blake having the opportunity to investigate what the "new services" are and without the safeguard of a CON review. Blake claims that it is most likely that its established programs will be substantially affected by the inclusion of these "new inpatient services." In addition, Blake claims that its medical office building will be adversely impacted by Manatee's acquisition of a competing medical office building because Manatee will use its new building to attract physicians to its hospital, possibly away from Blake's campus.

In ruling on a motion such as here, the Hearing Officer is bound to accept as true allegations of fact contained in the pleadings. However, here, no facts were alleged by Blake to indicate that Manatee's application calls for the providing of any new inpatient services. While Manatee's application does indicate a "direct linkage between the acute inpatient facility with the physician's [sic]" will be provided which will "enhanc[e] patient access to a range of diagnostic and treatment services" there is no indication that any new inpatient services will be provided in the new facility. Further, Blake's claim that that portion of the lease agreement, which provides Manatee the ". . . opportunity to locate certain present or anticipated hospital services and facilities in [the] new structure . . .," means new inpatient services, does not necessarily infer or imply that these "anticipated" services will be "inpatient."

Here, Manatee applied for a CON for the building only - not for any new services. Any new regulated inpatient service going beyond the parameters of existing CON authorization may be implemented only upon approval after CON review at which Petitioner, or any other substantially affected provider, may have standing to contest the approval of the certificate. Initiation of such a proscribed service, without benefit of that review, would subject Manatee to the possibility of both sanctions and injunctive action.

Blake's reliance on what it describes as the "ambiguity" of Manatee's application, and Manatee's use of the term, "anticipated" in its lease is not justified. Taken together, review of the pleadings herein demonstrates, at best, a substantially speculative approach by Blake which is not supported by

any specifics. Alone, it is insufficient to support standing. St. Joseph Hospital of Port Charlotte, Florida, Inc., v. Department of Health and Rehabilitative Services, 559 So.2d 595 (Fla. 1st DCA 1989).

Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore:

RECOMMENDED THAT: the Amended Petition For Formal Administrative Hearings in opposition to the Department's award of CON 6258 to Manatee Memorial Hospital, filed by HCA Health Services of Florida. Inc., d/b/a HCA L. W. Blake Hospital, be dismissed.

RECOMMENDED in Tallahassee, Florida this 4th day of January, 1991.

ARNOLD H. POLLOCK, 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 4th day of January, 1991.

COPIES FURNISHED:

Robert A. Weiss, Esquire John M. Knight, Esquire

Parker, Hudson, Rainer & Dobbs The Perkins House

118 N. Gadsden Street Tallahassee, Florida 32301

Edward G. Labrador, Esquire DHRS

2727 Mahan Drive

Tallahassee, Florida 32308

John Radey, Esquire Jeffrey L. Frehn, Esquire

Elizabeth McArthur, Esquire Aurell, Radey. Hinkle & Thomas

Suite 1000, 101 North Monroe Street Post Office Drawer 11307 Tallahassee, Florida 32302

Linda K. Harris General Counsel HRS

1323 Winewood Blvd.

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-007407

Orders for Case No: 90-007407