STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COLONIAL HEALTHCARE, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 92-2766
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES and ) LIFE CARE CENTERS OF AMERICA, INC., )
)
Respondent, )
) NATIONAL HEALTHCORP, L. P., )
)
Petitioner, )
)
vs. ) CASE NO. 92-2769
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and LIFE ) CARE CENTERS OF AMERICA, INC., )
)
Respondent. )
)
SUMMARY RECOMMENDED ORDER
Issue: Whether Life Care Centers, Inc. failed to provide with its Certificate of Need ("CON") application a complete listing of all capital projects, as required by Subsection 381.707(2)(a), Florida Statutes, and Rule 10-5.008, Florida Administrative Code.
APPEARANCES
For Petitioner Theodore E. Mack, Esquire Colonial Cobb, Cole & Bell
Health Care, 131 North Gadsden Street Inc.: Tallahassee, Florida 32301
For Respondent R. Bruce McKibben, Jr., Esquire
Life Care Haben, Culpepper, Dunbar & French, P.A. Centers of Post Office Box 10095
America, Inc.: Tallahassee, Florida 32302
For Petitioner Gerald B. Sternstein, Esquire
National McFarlain, Sternstein, Wiley & Cassedy Healthcorp, 101 North Monroe Street
L. P.: Suite 1010, Monroe-Park Tower Tallahassee, Florida 32301
For Respondent Thomas Cooper, Esquire Department of Department of Health and
Health and Rehabilitative Services Rehabilitative 2727 Mahan Drive
Services: Tallahassee, Florida 32308
PRELIMINARY STATEMENT
Colonial Healthcare, Inc. ("Colonial"), National Healthcorp, L. P. ("NHC"), and Life Care Centers of America, Inc. ("Life Care") filed applications, in December 1991, for certificates of need ("CONs") to construct 120 bed nursing homes in Department of Health and Rehabilitative Services ("HRS"), District 4.
In March 1992, HRS published its notice of intent to approve the application of Life Care (CON Number 6834), and to deny those of Colonial (CON Number 6838) and NHC (CON Number 6836). Timely filed petitions of Colonial and NHC challenged HRS' preliminary agency action in these consolidated cases.
On October 15, 1992, NHC filed a Motion for Summary Recommended Order dismissing Life Care as a party for failure to list all of its capital projects in its CON application, as required by Subsection 381.707(2)(a), Florida Statutes, (1991) and 10-5.008, Florida Administrative Code. On October 23, 1992, Life Care filed a Response maintaining that any omissions were either immaterial or justified. An evidentiary hearing on NHC's Motion was held on October 28, 1992. The transcript was filed on November 9, 1992, and after a brief extension of time, the parties filed proposed summary recommended orders on November 25, 1992.
At the hearing, Life Care presented the testimony of John O'Brien, James S. Wiegard and Fred Lester, and exhibits 1-3, which were received in evidence. The Agency for Health Care Administration ("AHCA") 1/ presented the testimony of Alberta Granger, and Exhibits 1 and 2, which were received in evidence. NHC and Colonial presented their exhibits 1-11, which were received in evidence, and an exhibit 12, which was marked for identification.
FINDINGS OF FACT
Life Care Centers of America, Inc. ("Life Care"), a Tennessee corporation, filed a letter of intent, on or about October 31, 1991, and, subsequently, an application for a certificate of need ("CON") to construct a
120 bed community nursing home in Flagler County, Florida, in Department of Health and Rehabilitative Services ("HRS") District 4. HRS published its preliminary intent to approve the Life Care proposal in March, 1992.
Life Care manages over 143 nursing homes, and owns or leases 39 of the nursing homes, four in Florida, two in West Palm Beach, and one each in Altamonte Springs and Punta Gorda.
On Schedule 2 of Life Care's CON application, no projects or expenditures were listed in Category A - approved or underway. Life Care listed five projects or expenditures, totaling $15,343,867, in Category B - applied for, pending approval or planned. In addition to the projects listed on Schedule 2, NHC Colonial and AHCA assert that Life Care should have also included the following: 1) $800,000 to $1 million in capital projects at the 39 facilities owned or leased by Life Care; 2) an approved CON in Paducah, Kentucky, for $3.7 million; 3) the purchases of facilities in Globe, Arizona and of two Tennessee projects known collectively as Athens/Ridgeview; and 4) a nursing home project in Casper, Wyoming.
Capital Projects at Various Facilities
Life Care argues that, due to its decentralized organizational structure, it is impossible to determine the total amount of capital projects underway at its facilities at any specific time. The executive directors of Life Care's various facilities submit proposed capital projects for each year. Approval in the form of budget sign-off sheets is given at corporate headquarters for the projects planned for the year. Life Care describes budget sign-off sheets as "wish lists," subject to further review before expenditures are made, and before a determination is made whether the project will be financed or funded from cash flow from operations.
At the time an executive director is ready to proceed with a project, the executive director submits a request for capital expenditures ("CER") form for approval at the corporate headquarters. At that time, the method for financing the project is determined. Even if a project is financed through cash flow, it may still be capitalized, if required by generally accepted accounting principles.
Life Care asserts that omissions of small capital projects, most of which are likely to be funded by cash flow and are mainly replacement items, minor repairs or renovations, are inconsequential to its ability to fund the project which is proposed in this application.
Kentucky CON
In 1990, Life Care obtained a CON for a replacement facility in Paducah, Kentucky. The CON was approved and held by Life Care at the time this application was filed in 1991, and at the time of hearing. Life Care asserts that the Paducah nursing home project is not going to be undertaken by Life Care, due to failed negotiations over Medicaid capital reimbursements from the State of Kentucky.
Assuming, arguendo, that an approved CON does not have to be listed as a capital project if the applicant has no intentions of using the CON, the problem is that evidence was presented that the project is the subject of some continuing negotiations. For example, the project reappears on April, July, October, November and December, 1991 Life Care project status reports, after having been omitted from August and September reports. In addition, there was testimony regarding continuing efforts to negotiate related land purchases.
AHCA takes the position that the Paducah facility had to be disclosed, as a valid or "approved" project, regardless of whether the applicant intends to carry out the project.
Purchases in Other States
Life Care maintains that the purchase of two Athens, Tennessee facilities, collectively the Athens/Ridgeview project, was intended to be made by an affiliated partnership, not by the applicant, Life Care. Life Care, the applicant, however, was the entity which entered into the purchase contract, and which ultimately purchased the facility. The contract was signed in December 1991, after the letter of intent deadline.
Although Life Care first tried to purchase Athens/Ridgeview in August 1991, the sellers accepted the offer of a higher bidder in October. Only when
that purchase failed, early in December 1991, Life Care again engaged in negotiations to purchase Athens/Ridgeview.
NHC and Colonial alleged that Life Care should have also included on Schedule 2, its purchase of Heritage Health Care Center, Globe, Arizona. Life Care established that the purchase was accomplished prior to the filing of its letter of intent by a partnership not the applicant corporation. AHCA concurs that a project accomplished prior to the letter of intent deadline would not be required to be disclosed.
Finally, Life Care failed to list a project in Casper, Wyoming. Life Care leased, but did not purchase the facility in Wyoming. Life Care established that the lease is not a capitalized expenditure, but an operating lease funded by cash from operations. AHCA concurs that, payments from operating expenses are not required to be disclosed in Schedule 2.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Subsections 120.57(1) and 381.709(5), Florida Statutes (1991).
As the applicant for a certificate of need, Life Care bears the burden of proving it complied with the CON law, including the minimum statutory requirements, to be awarded a CON. Humhosco, Inc. v. Department of Health and Rehabilitative Services, 561 So.2d 388, 391 (Fla. 1st DCA 1990).
Subsection 381.707(2)(a) provides, in relevant part: 381.707 Application content. -- An application
for a certificate of need shall contain:
* * *
A statement of the financial resources needed by and available to the
applicant to accomplish the proposed project. This statement shall include:
A complete list of all capital projects, including new health facility development projects and health facility acquisitions applied for, pending, approved, or underway in any sate at the time of application, regardless of whether or not that state has a certificate-of-need program or a capital expenditure review program pursuant to section 1122 of the Social Security Act. The department may, by rule, require less detailed information from major health care providers. This listing shall include the applicant's actual or proposed financial commitment to those projects and an assessment of their impact on the applicant's ability to provide the proposed project.
Rule 10-5.002, Florida Administrative Code, renumbered as 59C-1.002(9), Florida Administrative Code, defines the term "capital project" as follows.
(9) "Capital project" means a project involving one or more expenditures which has
received final approval via authorization to execute for which capitalization will be required under generally accepted accounting principles. For the purpose of this definition, final approval includes letters of intent to issue a certificate of need issued by the Department.
The term "capital expenditure" is defined in Section 381.702(1), Florida Statutes (1991) renumbered as Section 408.032(1), Florida Statutes (1992) and Rule 10-5.002(8), Florida Administrative Code, renumbered as Rule 59C-1.002(8), Florida Administrative Code:
(1) "Capital expenditure" means an expenditure, including an expenditure for a construction project undertaken by a health facility as its own contractor, which, under generally accepted accounting principles, is not properly chargeable as an expense of operation and maintenance; or an expenditure which exceeds the minimum as specified in s. 381.706(1)(c), changes the bed capacity of the facility, or substantially changes the services or service area of the health service facility, health care provider, or hospice, and which includes the cost of the studies, surveys, designs, plans, working drawings, specifications, refinancing costs, and other activities essential to acquisition, improvement, expansion or replacement of the plant and equipment. The department shall, by rule, adjust the capital expenditure threshold annually using an appropriate inflation index.
In accordance with Section 381.707(2)(a), AHCA has promulgated rule 10- 5.008(5)(h), Florida Administrative Code, renumbered Rule 59C-1.008(5)(h), Florida Administrative Code, which sets forth the minimum information required from an applicant:
(h) To comply with section 381.707(2)(a), F. S., requiring a listing of all capital projects as defined in Rule 10-5.002(9), F.A.C., the applicant shall, consistent with the applicant's capitalization policies, provide the total approximate amount of capital projects approved via authorization to execute or underway at the time of the letter of intent deadline or state there are none. An itemized list of grouping of capital projects is not required; however, an applicant may choose to itemize or group its capital projects. The applicant shall also indicate the actual or proposed financial commitment to finance those projects, and
include an assessment of the impact of those projects on the applicant's ability to provide the proposed project. (Emphasis added)
The deadline for the letter of intent which Life Care filed with the Agency was November 4, 1991. Life Care's subsequent CON application (6384) for the construction of a 120-bed nursing facility in Flagler County was filed on December 4, 1991. The evidence at hearing established that Schedule 2 filed with the application is not a complete listing of all of Life Care's capital projects as of November 4, 1991. One Omission is the $3,723,200 capital project authorized by a CON for Life Care Center of Paducah, Kentucky. The Paducah CON is covered in the statutory definition as an "approved" project in any state and was required to be listed. See, Subsection 381.707(2)(a), Florida Statutes (1991), now renumbered as Subsection 408.037(2)(a), Florida Statutes.
Life Care was also required to, but did not disclose between $800,000 to $1,000,000 in capital projects underway or approved during the course of any
12 month period. Although Life Care asserts that decentralized operations make it difficult to be certain of ongoing projects at 39 nursing homes, it could have grouped and approximated the total amount of such capital projects, pursuant to Rule 1-5.008(5)(h), Florida Administrative Code.
Life Care established that negotiations and/or purchases of facilities in Globe, Arizona and the Athens/Ridgeview, Tennessee were not pending as of November 4, 1991, the Globe acquisition having been completed and Athens/Ridgeview negotiations having appeared to have ended by the acceptance of a higher bid at that time. Neither project is, therefore, covered by the statutory requirement to list "... acquisitions applied for, pending...or underway..." See, Subsection 381.707(2)(a), Florida Statutes (1991), now renumbered as Subsection 408.037(2)(a), Florida Statutes.
Similarly, Life Care was not required, as a matter of law, to disclose its operating lease in Casper, Wyoming.
Life Care's failure to submit a complete listing of all its capital projects, also made it impossible for Life Care to provide an impact assessment of those projects on its ability to construct the proposed 120-bed nursing home in this application. Life Care's argument that the Agency requires applicants to include only projects to which the applicant is "committed," not just those approved for a CON is rejected, as contrary to the language of the statute. Life Care failed to meet its burden of showing that the issuance of a CON in Kentucky is "speculative, non-final" action in Kentucky.
Life Care has also failed to establish its assertion that the omission was inconsequential in light of the decision in Marriott Retirement Communities, Inc. v. DHRS, et al., 14 FALR 2673 (Final Order dated May 6, 1992), and South Broward Hospital District d/b/a Memorial Hospital v. DHRS, 13 FALR 3163, (Final Order dated June 25, 1992).
Assuming, arguendo, that the Marriott case established a test of the significance of an omission from schedule 2, then Life Care's failure to include almost a fourth of its total capital projects, is not comparable to Marriott's omission of approximate .06 percent of its total.
Summary dismissal of Life Care's application is, therefore, required.
Based on the foregoing it is
RECOMMENDED that The Agency for Health Care Administration enter a Final Order dismissing the application of Respondent, Life Care Centers of America, Inc., for Certificate of Need No. 6834.
RECOMMENDED this 10th day of December, 1992, in Tallahassee, Florida.
ELEANOR M. HUNTER
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 10th day of December, 1992.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 92-2766, 92-2769
Petitioner Colonial Healthcare, Inc.'s, Finding of Fact:
Subordinate to Finding of Fact 2.
Accepted in Finding of Fact 2.
3 - 5. Accepted in Finding of Fact 4.
6. - 7. Accepted in Finding of Fact 3.
Subordinate to Finding of Fact 3.
Accepted in Finding of Fact 4.
Accepted in Finding of Fact 3 and 6.
Subordinate to Finding of Fact 3 and 6.
Subordinate to Finding of Fact 4.
13 - 15. Subordinate to Finding of Fact 3.
16. Accepted to Finding of Fact 7.
17 - 18. Accepted to Finding of Fact 8.
Accepted in Finding of Fact 3.
Subordinate to Finding of Fact 9.
Accepted to Finding of Fact 8.
Subordinate to Finding of Fact 8.
Rejected in Finding of Fact 11.
Accepted in Finding of Fact 10.
Petitioner National Healthcorp, L. P.'s Finding of Fact:
1. Subordinate to Finding of Fact 2.
2 - | 3. Accepted in Finding of Fact 4. | |
4 - | 6. Accepted in Finding of Fact 3. | |
7. | Subordinate to 3, in part, and Accepted in 4-5, | in |
part. | ||
8. | Accepted in Finding of Fact 6. | |
9. | Accepted in Finding of Fact 5. |
Accepted in Finding of Fact 4.
Accepted in Finding of Fact 3 and 6.
Accepted in Finding of Fact 6.
Subordinate to Finding of Fact 3.
Subordinate to Finding of Fact 3.
Subordinate to Finding of Fact 3 and 6.
16 - 17. Subordinate to Finding of Fact 6.
18. Accepted in Finding of Fact 4.
19 - 20. Subordinate to Finding of Fact 3 and 6.
Accepted in Finding of Fact 7.
Accepted in Finding of Fact 8.
Accepted in Finding of Fact 7.
Accepted in Finding of Fact 8.
25 - 26. Accepted in Finding of Fact 7.
Accepted in Finding of Fact 8.
Subordinate to Finding of Fact 8.
Subordinate to Finding of Fact 1.
Subordinate to Finding of Fact 3.
31 - 34. Subordinate to Finding of Fact 3.
Accepted in Finding of Fact 9.
Subordinate to Finding of Fact 4.
Subordinate to Finding of Fact 3.
Subordinate to Conclusions of Law 2.
Respondent Life Care Centers of America, Inc.'s Finding of Fact:
Subordinate to Finding of Fact 1 and 2.
Accepted in Finding of Fact 2.
3 - 4. Subordinate to Finding of Fact 2.
Subordinate to Finding of Fact 4.
Accepted in or Subordinate to Finding of Fact 1.
Accepted in Finding of Fact 3.
Accepted in Finding of Fact 7 and 8.
See, except last sentence, in Finding of Fact 7.
10. | Accepted in | Fending of Fact 9. | |
11 - | 12. See in | or Subordinate to Finding of | Fact 8. |
13. | Accepted in | Finding of Fact 12. | |
14. | Accepted in | or Subordinate to Finding of | Fact 10 |
and | 11. | ||
15. | Accepted in | Finding of Fact 13. | |
16. | Accepted in | Finding of Fact 4. | |
17. | Accepted in | Finding of Fact 4. | |
18. | Subordinate | to Finding of Fact 4. | |
19. | Accepted in | Finding of Fact 4. | |
20. | Subordinate | to Finding of Fact 4. | |
21. | Accepted in | Finding of Fact 4 and 6. | |
22. | Accepted in | Finding of Fact 6. | |
23. | Rejected in | Conclusion of Law 22 and 23. |
Respondent Agency for Health Care Administration's Finding of Fact:
Subordinate to Finding of Fact 3.
Accepted in Finding of Fact 3.
3 -5. Subordinate to Finding of Fact 3.
Accepted in Finding of Fact 3.
Accepted in Finding of Fact 3.
Accepted in Finding of Fact 8.
Accepted in Finding of Fact 3 and 8.
Subordinate to Finding of Fact 8.
Subordinate to Finding of Fact 9.
Subordinate to Finding of Fact 8.
13 - 15. Accepted in Finding of Fact 3.
Accepted in Finding of Fact 4 and 6.
Subordinate to Finding of Fact 3 and 6.
COPIES FURNISHED:
Thomas Cooper, Esquire Department of Health and
Rehabilitative Services 2727 Mahan Drive
Tallahassee, Florida 32308
Gerald Sternstein, Esquire McFarlain, Sternstein, Wiley
& Cassedy
Post Office Box 2174 Tallahassee, Florida 32316-2174
Theodore E. Mack, Esquire Cobb, Cole & Bell
Suite 500
315 South Calhoun Street Tallahassee, Florida 32301
R. Bruce McKibben, Jr., Esquire Haben, Culpepper, Dunbar
& French, P.A.
Post Office Box 10095 Tallahassee, Florida 32302
Sam Power, Agency Clerk
Agency for Health Care Administration 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION
COLONIAL HEALTHCARE, INC.,
Petitioner,
CASE NO: 92-2766
vs. CON NO.: 6838
RENDITION NO.: AHCA-92-4-FOF-CON
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION and LIFE CARE CENTERS OF AMERICA, INC.,
Respondents.
/ NATIONAL HEALTHCORP, L. P.,
Petitioner,
vs. CASE NO.: 92-2769
CON NO.: 6838
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION AND LIFE CARE CENTERS OF AMERICA, INC.,
Respondents.
/
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 Summary Recommended Order to the Agency for Health Care Administration (AHCA). The Summary Recommended Order entered December 10, 1992, by Hearing Officer Eleanor M. Hunter is incorporated by reference.
RULING ON EXCEPTIONS
Life Care excepts to the Hearing Officer's finding that Life Care continued to seek implementation of the CON issued to it by the State of Kentucky during the relevant time period. The record contains conflicting evidence on this issue.
The agency has no authority to reweigh the evidence so long as a challenged finding of fact is supported by competent, substantial evidence. Under such circumstances it is the exclusive function of the Hearing Officer to evaluate
the credibility of evidence, weigh it, and make findings. Section 120.57(1)(b)10, Florida Statutes, Heifetz vs. Department of Business Regulation, 475 So2d 1277, 1281 (Fla. 1st DCA 1985).
The Hearing Officer's findings regarding the Kentucky CON are supported by competent, substantial evidence; therefore, the exceptions are denied.
Life Care excepts to the legal conclusion that the statutorily required list of capital projects must include an approved CON. An applicant may not remain silent regarding an approved CON it holds and fail to include the approved CON on the list of its capital projects. The exception is denied.
Life Care also excepts to the Hearing Officer's findings regarding
$800,000.00 to $1,000,000.00 of capital projects at the 39 facilities owned or leased by Life Care. These findings are supported by competent, substantial evidence; therefore, the exceptions are denied.
FINDINGS OF FACT
The agency hereby adopts and incorporates by reference the findings of fact set forth in the Summary Recommended Order.
CONCLUSIONS OF LAW
The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Summary Recommended Order.
Based upon the foregoing, it is
ADJUDGED, that the application of Life Care Center of America, Inc. for CON 6834 be DENIED. The Motion To Dismiss Life Care Center of America, Inc. as a party to this proceeding is GRANTED.
DONE and ORDERED this 4th of February, 1993, in Tallahassee, Florida.
Douglas M. Cook, Director Agency for Health Care
Administration
COPIES FURNISHED:
Theodore E. Mack, Esquire COBB, COLE & BELL
131 North Gadsden Street Tallahassee, Florida 32301
R. Bruce McKibben, Jr., Esquire HABEN, CULPEPPER, DUNBAR
& FRENCH, P. A.
Post Office Box 10095 Tallahassee, Florida 32302
Eleanor M. Hunter Hearing Officer
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Gerald B. Stemstein, Esquire McFARLAlN, STERNSTEIN, WILEY
& CASSEDY
101 North Monroe Street
Suite 1010, Monroe-Park Tower Tallahassee, Florida 32301
Thomas Cooper, Esquire Senior Attorney
2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
Wendy Thomas (AHCA) Alberta Granger (AHCA)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by U.S. Mail this 5th day of February, 1993.
R. S. Power, Agency Clerk Senior Attorney
Agency for Health Care Administration
325 John Knox Road, Suite 301 Tallahassee, Florida 32303 (904) 922-3012
=================================================================
MOTION FOR REMAND
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION
COLONIAL HEALTHCARE, INC.,
Petitioner,
vs. Case No. 92-2766
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and
LIFE CARE CENTERS OF AMERICA, INC.,
Respondent,
/ NATIONAL HEALTHCORP, L.P.,
Petitioner,
vs. Case No. 92-2769
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and
LIFE CARE CENTERS OF AMERICA, INC.,
Respondent.
/
MOTION FOR REMAND
Colonial Healthcare, Inc. (Colonial) requests that the hearing officer remand the above-styled cases to the Agency for Health Care Administration (AHCA) for further agency action and as grounds therefore would state:
Colonial and National Healthcorp, L.P. (NHC) petitioned for review of AHCA's initial agency decision granting a 120 bed nursing home CON to Life Care Centers of America, Inc. (Life Care) and denying the applications filed by Colonial and NHC.
AHCA referred the petitions to the Division of Administrative Hearings (DOAH) to conduct formal administrative proceedings. The assigned hearing officer consolidated the matters and set them for final hearing.
Prior to final hearing, by motion for summary recommended order, Life Care's application was challenged for failure to list all capital projects. After hearing on the motion, the hearing officer issued a summary recommended order recommending that Life Care's application be dismissed. By Final Order dated February 4, 1993, AHCA accepted the hearing officer's recommendation and Life Care was dismissed as a party to this proceeding. (A copy of the Final Order is attached hereto for reference.)
With the dismissal of Life Care, this proceeding remains pending upon Colonial's and NHC's challenges to the denials of their applications. With the initially approved applicant dismissed, there is no agency determination as to which remaining applicant should be approved. These consolidated cases should therefore be remanded to AHCA for further initial review and recommendation.
Undersigned counsel has contacted counsel for AHCA and NHC who state that they concur and join in this motion for remand.
WHEREFORE, it is respectfully requested that the hearing officer remand these cases to the agency for further review and close the DOAH file.
Respectfully Submitted,
Theodore E. Mack Cobb Cole & Bell
131 North Gadsden Street Tallahassee, Florida 32301 Attorney for Petitioner
Colonial Healthcare, Inc.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above has been Hand Delivered to the following: Gerald Sternstein, Esquire, Monroe Park Tower, Suite 1010, 101 North Monroe Street, Tallahassee, Florida 32301; J. Robert Griffin, Esquire, Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee, Florida 32308 on this 17th day of March, 1993.
Theodore E. Mack
=================================================================
ORDER OF REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COLONIAL HEALTHCARE, INC., )
Petitioner, )
)
vs. ) CASE NO. 92-2766
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and LIFE ) CARE CENTERS OF AMERICA, INC., )
)
Respondents, )
) NATIONAL HEALTHCORP, L.P., )
)
Petitioner, )
)
vs. ) CASE NO. 92-2769
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and LIFE ) CARE CENTERS OF AMERICA, INC., )
)
Respondents. )
)
ORDER OF REMAND
THIS CAUSE came on for consideration Upon Motion For Remand filed on March 17, 1993. Having reviewed the record in this proceeding and being advised in the premises, it is
ORDERED:
The file is returned to the referring agency for final disposition. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of
March, 1993.
ELEANOR M. HUNTER
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 23rd day of March, 1993.
COPIES FURNISHED:
J. Robert Griffin, Esquire Agency for Health Care
Administration
2727 Mahan Drive-Suite 103
Tallahassee, Florida 32308
Theodore E. Mack, Esquire Cobb, Cole & Bell
131 North Gadsden Street Tallahassee, Florida 32301
Gerald B. Sternstein, Esquire Ruden, Barnett, McClosky, et al. Monroe-Park Tower, Suite 1010
101 North Monroe Street Tallahassee, Florida 32301
R. Bruce McKibben, Jr., Esquire Haben, Culpepper, Dunbar, et al. P O. Box 10095
Tallahassee, Florida 32302
| Issue Date | Proceedings |
|---|---|
| May 20, 1993 | By order of the court; appeal dismissed filed. |
| Mar. 23, 1993 | Order of Remand sent out. (Case returned to the referring agency) |
| Mar. 17, 1993 | (Petitioner) Motion for Remand filed. |
| Mar. 08, 1993 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE of -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Feb. 09, 1993 | Final Order filed. |
| Dec. 22, 1992 | (AHCA) Notice of Appearance and Substitution of Counsel filed. |
| Dec. 21, 1992 | Life Care Centers of America, Inc.'s Exceptions to Summary Recommended Order filed. |
| Dec. 10, 1992 | Summary Recommended Order sent out. CASE CLOSED. Hearing held October 26-30, 1992. |
| Dec. 01, 1992 | (Respondent) Response to Request for Official Recognition filed. |
| Dec. 01, 1992 | (Respondent) Response to Notice of Filing Deposition by National Healthcorp, L.P. filed. |
| Nov. 25, 1992 | Respondent, Life Care Centers of America Inc.`s Proposed Order Denying Motion for Summary Recommended Order filed. |
| Nov. 25, 1992 | Respondent AHCA`S Proposed Recommended Order filed. |
| Nov. 25, 1992 | Proposed Summary Recommended Order of Petitioner National Healthcorp,L.P.; Notice of Filing Deposition of Frederick L. Lester, Jr. As Supplement to Record at Evidentiary Hearing On National Healthcorp`s Motion for Summary Recommend Order |
| Nov. 25, 1992 | (Petitioner) Proposed Summary Recommended Order filed. |
| Nov. 18, 1992 | Order Granting Extension of Time sent out. (motion to extend time for filing proposed recommended order or response to motion for Summary recommended order is granted) |
| Nov. 17, 1992 | (Petitioner) Agreed Upon Motion to Extend Time for Filing Proposed Recommended Order or Response to Motion for Summary Recommended Order filed. |
| Nov. 09, 1992 | Transcript (Evidentiary Hearing) filed. |
| Oct. 27, 1992 | Notice of Supplemental Authority in Support of National Healthcorp's Motion for Summary Recommended Order; CC Deposition of James S. Weigard; CC Deposition of John Patrick O'Brien; CC Deposition of Timothy J. Bea |
| Oct. 23, 1992 | Life Care Centers of America Inc.'s Response to Motion for Summary Recommended Order; Notice of Taking Deposition Duces Tecum filed. |
| Oct. 22, 1992 | Life Care Centers of America Inc.'s Response to Request for Production of Documents From National Healthcorp, L. P. filed. |
| Oct. 21, 1992 | (Petitioner) Amended Notice of Taking Deposition Duces Tecum filed. |
| Oct. 21, 1992 | National Healthcorp, L. P.`s Motion to Compel Production of Documents From Life Care Centers of America, Inc. filed. |
| Oct. 21, 1992 | (Petitioner) Notice of Telephone Hearing on Pending Motions and Status Conference filed. |
| Oct. 20, 1992 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 19, 1992 | Motion for Continuance filed. (From R. Bruce McKibben, Jr.) |
| Oct. 15, 1992 | Petitioner, National Healthcorp, L.P.`S Motion for Summary Recommended Order w/Exhibit-1 filed. |
| Oct. 15, 1992 | Notice of Service of National Healthcorp`s Answers to Colonial Health care`s First Interrogatories; National Healthcorp, L.P.`S Response to Colonial Health care`s Request to Produce filed. |
| Oct. 15, 1992 | National Healthcorp L.P.'s Witness List filed. |
| Sep. 21, 1992 | National Healthcorp, L. P.'s First Request for Production of Documents to Life Care Centers of America, Inc. filed. |
| Sep. 21, 1992 | National Healthcorp, L.P.'s Second Request for Production of Documents to Life Care Centers of America, Inc. filed. |
| Sep. 21, 1992 | National Healtcorp, L. P.'s First Request for Production of Documentsto Colonial Healthcare, Inc.; National Healthcorp, L.P.'s Notice of Serving First Set of Interrogatories to Colonial Healthcare, Inc.; National Healthcorp, L.P.' s Notice of Serving Fi |
| Sep. 14, 1992 | (Petitioner) Notice of Service of Interrogatories (2); Request for Production filed. |
| Jun. 02, 1992 | Notice of Hearing sent out. (hearing set for October 26-30, 1992; 10:00am; Tallahassee) |
| May 28, 1992 | Petitioner`s notice of Counsel`s Change of Address filed. |
| May 22, 1992 | (Petitioner) Response to Prehearing Order filed. |
| May 22, 1992 | Notice of Appearance filed. (From R. Bruce McKibben, Jr.) |
| May 08, 1992 | (Petitioner) Amended Certificate of Service filed. |
| May 08, 1992 | Order of Consolidation and Prehearing Order sent out. (Consolidated cases are: 92-2766 and 92-2769) parties shall file their prehearing stipulation no later than (15) days prior to date set for final hearing. |
| May 07, 1992 | Notification card sent out. |
| May 05, 1992 | Notice; Petition for Formal Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 17, 1993 | Remanded from the Agency | |
| Feb. 04, 1993 | Agency Final Order | |
| Dec. 10, 1992 | Recommended Order | Capital projects list is incomplete without approved certificate of need in another state and capital projects underway at existing facilities. |
