STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GULFSTREAM HOME CARE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-0364

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 5, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mary Parlontieri, President

Gulfstream Home Care, Inc. 4623 Forest Hill Boulevard #103

West Palm Beach, Florida 33145

For Respondent: Edward G. Labrador, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive

Suite 103

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

Whether the application of petitioner for a certificate of need to establish a Medicare certified home health agency was incomplete and should, therefore, be administratively withdrawn from further consideration.

PRELIMINARY STATEMENT

By letter of November 19, 1990, respondent, Department of Health and Rehabilitative Services (Department or HRS) advised petitioner, Gulfstream Home Care, Inc. (Gulfstream), that its application for a certificate of need to establish a Medicare certified home health agency in HRS District IX was incomplete and administratively withdrawn due to Gulfstream's failure to submit audited financial statements. Gulfstream filed a timely request for formal hearing to contest the Department's decision, and the matter was referred to the

Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, Gulfstream presented the testimony of Mary Parlontieri, president of Gulfstream Home Care, Inc., and Larry Brock, certified public accountant. Gulfstream's exhibits 1-4 were received into evidence. The Department presented the testimony of William McDaniel, Elizabeth Dudek, and Roger Bell, certified public accountant. The Department's exhibits 1-5 were received into evidence.

The transcript of hearing was filed March 20, 1991, and the parties were granted leave until April 1, 1991, to file proposed findings of fact. The Department elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On September 26, 1990, petitioner, Gulfstream Home Care, Inc. (Gulfstream), filed an application with respondent, Department of Health and Rehabilitative Services (Department or HRS), for a certificate of need to establish a Medicare certified home health agency in HRS District IX. Such application failed, however, to include an audited financial statement of the applicant.

   
   

2. By letter of October 12, 1990, the Department provided Gulfstream with a list of items that had been omitted from its application, and accorded it an opportunity to cure such omissions by November 12, 1990. Among the omissions Gulfstream was offered an opportunity to cure, was its failure to include an audited financial statement with its application, as required by Section 381.707(3), Florida Statutes.

   
   

3. On November 9, 1990, Gulfstream filed its omission response with the Department. That response included a balance sheet dated September 30, 1989 and a statement of income and expenses for the twelve-month period ending September 30, 1989, prepared by Royale Business Services on behalf of Gulfstream. Such statements were not, however, audited, and, as noted by Royale Business Services, the utility of such a compilation

   
   

   ... IS LIMITED TO PRESENTING IN FINANCIAL STATEMENT FORM INFORMATION PROVIDED BY MANAGEMENT OF THE BUSINESS. AS THE INFORMATION HAS NOT BEEN REVIEWED, AND THE FACT THAT WE ARE NOT CERTIFIED PUBLIC ACCOUNTANTS, WE DO NOT EXPRESS AN OPINION OR ANY OTHER FORM OF ASSURANCES ON THEM.

   
   

4. At hearing, Gulfstream contended that, in addition to the compilations prepared by Royale Business Services, it had also submitted an audited financial statement of Gulfstream for the three-month period ending December 31, 1989, with its omissions response. The persuasive proof fails, however, to support Gulfstream's contention. Rather, such proof demonstrates that, when the Department notified Gulfstream by letter of November 19, 1990, that its application was deemed incomplete and was administratively withdrawn, no audited financial statements had been submitted to the Department.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Pertinent to this case, Section 381.707, Florida Statutes, provides:

   
   

   Application content.--An application for a certificate of need shall contain:

   * * *

   (3) An audited financial statement of the applicant. In an application submitted by an existing health care facility, health main- tenance organization, or hospice, financial condition documentation shall include, but need not be limited to, a balance sheet and a profit-and-loss statement of the 2 previous fiscal years' operation.

   
   

   And, Section 381.709, Florida Statutes, provides

   
   

   (3) APPLICATION PROCESSING.--

   (a) An applicant shall file an application with the department, and shall furnish a copy of the application to the local health council and the department. Within 15 days after the applicable application filing deadline established by department rule, the staff of the department shall determine if the applica- tion is complete. If the application is incomplete, the staff shall request specific information from the applicant necessary for the application to be complete; however, the staff may make only one such request. If the requested information is not filed with the department within 21 days of the receipt of the staff's request, the application shall be deemed incomplete and deemed withdrawn from consideration.

   
   

7. Here, the proof demonstrated that Gulfstream failed to file an audited financial statement with its application as required by section 381.707(3), and further failed to supply such audited financial statement as requested by the Department's omission letter. Accordingly, Gulfstream's application was incomplete, and appropriately withdrawn under the provisions of section 381.709(3)(a). See: Humhosco, Inc. v. Department of Health and Rehabilitative Services, 561 So.2d 388 (Fla. 1st DCA 1990).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered finding Gulfstream's application incomplete and withdrawing such application from further consideration.

RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of April 1991.

WILLIAM J. KENDRICK

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 April 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0364

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2-10. Addressed in paragraphs 2-4, otherwise subordinate or not necessary to the result reached.

COPIES FURNISHED:

Edward Labrador, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308

Mary Parlontieri, President Gulfstream Home Care, Inc.

4623 Forest Hill Boulevard, #103 West Palm Beach, Florida 33415

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 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: 91-000364

Orders for Case No: 91-000364