STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH BROWARD HOSPITAL DISTRICT, ) d/b/a MEMORIAL HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6859

) STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

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 May 25, 1994.

APPEARANCES

For Petitioner: Geoffrey D. Smith, Esquire

Blank, Rigsby & Meenan, P.A.

204 South Monroe Street Tallahassee, Florida 32301

For Respondent: Richard A. Patterson, Esquire

Agency for Health Care Administration

301 The Atrium

325 John Knox Road

Tallahassee, Florida 32303-4131 STATEMENT OF THE ISSUES

Here, petitioner, South Broward Hospital District (SBHD), has challenged respondent's proposed delicensure of 25 medical/surgical beds at Memorial Hospital based on the contention that the provision of Certificate of Need (CON) 4019 which provided for the retirement of 25 medical/surgical beds upon the opening of the SBHD's 100-bed satellite hospital (Memorial Hospital West) was invalid. Alternatively, petitioner requests that such CON be modified to delete the requirement that the 25 medical/surgical beds be retired.

PRELIMINARY STATEMENT

On December 21, 1988, SBHD's application for a CON to construct a new 100- bed satellite hospital facility was approved and CON 4019 was issued. The certificate's project description read as follows:

Construction of a new 100 bed satellite hospital facility, which will be composed of 92 medical surgical and 8 intensive care beds, in southwestern Broward County, HRS District 10, via the transfer of 100 beds from an existing facility, Memorial Hospital, Hollywood, and retiring an additional 25 medical/surgical beds from the existing facility upon the opening of the satellite facility . . . .

Effective May 12, 1992, following completion of the Memorial Hospital West facility and consistent with the provisions of CON 4019, respondent issued License number 3288 to SBHD, which reflected SBHD's authorization to operate Memorial Hospital West with 100 acute care beds, and License number 3289, which reflected a 125 bed reduction in its authorized acute care bed capacity at Memorial Hospital.

SBHD's response to such action was to protest the delicensure of the additional 25 beds at Memorial Hospital 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. Here, petitioner contends that the provision of CON 4019 which requires the retirement of the additional 25 beds upon opening of the satellite facility is invalid or, alternatively, that the CON should be modified to delete such requirement.

At hearing, petitioner called John S. Eavenson, an expert in health care economics and finance, John D. Bandes, an expert in health planning, and Marta Hardy, as witnesses. Petitioner's exhibits 1-14 were received into evidence. Respondent called Elizabeth Dudek as a witness, and its exhibits 1-7 were received into evidence.

The transcript of hearing was filed July 6, 1994, and the parties were accorded ten days from that date to file proposed recommended orders. The parties' proposed findings of fact, contained in their proposed recommended orders, are addressed in the appendix to this recommended order.

FINDINGS OF FACT

Status of the case

1. South Broward Hospital District (SBHD) is a special taxing district created in 1947 by a special act of the Florida Legislature to provide health services to the residents of South Broward County and surrounding areas.

   
   

2. SBHD is a designated disproportionate share provider of medical services to the indigent, and currently operates two Class I General Hospitals in Broward County, to wit: Memorial Hospital, located in Hollywood, and Memorial Hospital West, located in Pembroke Pines.

   
   

3. Pertinent to this case, SBHD was authorized to establish Memorial Hospital West by Certificate of Need (CON) number 4019 issued by the Department of Health and Rehabilitative Services (the predecessor to respondent, Agency for Health Care Administration) on December 21, 1988. The certificate's project description read as follows:

   
   

   Construction of a new 100 bed satellite hospital facility, which will be composed of 92 medical surgical and 8 intensive care beds, in southwestern Broward County, HRS District 10, via the transfer of 100 beds

   from an existing facility, Memorial Hospital, Hollywood, and retiring an additional 25 medical/surgical beds from the existing facility upon the opening of the satellite facility . . . .

   
   

4. By letter of June 3, 1992, respondent forwarded to SBHD License No. 3288, effective May 12, 1992, which authorized it to operate Memorial Hospital West as a Class I General hospital with 100 acute care beds. Contemporaneously, respondent forwarded to SBHD License No. 3289, effective May 12, 1992, which reduced Memorial Hospital's licensed acute care beds to 489, "reflecting the transfer of 100 acute beds to Memorial Hospital West, and the delicensure of 25 additional acute care beds," "[p]ursuant to Certificate of Need Number 4019."

   
   

5. SBHD filed a timely petition challenging the respondent's issuance of License No. 3289, and, more particularly, the provision in such license reflecting "the delicensure of 25 additional acute care beds." It was SBHD's position that the provision of CON 4019 which required the retirement of the additional 25 beds upon the opening of Memorial Hospital West was invalid or, alternatively, that the CON should be modified to delete such requirement. Respondent disagreed with SBHD's assertion that the provision of the CON requiring retirement of the additional 25 beds was invalid and contended that SBHD's request for modification could not be accommodated under the modification provisions of Rule 59C-1.019, Florida Administrative Code, but required certificate of need review. Accordingly, these formal proceedings to review, de novo, the agency's decision were commenced at SBHD's request.

   
   

   The quest for CON 4019

   
   

6. The quest by SBHD to construct a satellite hospital in southwest Broward County had its genesis in January 1984 when the Department of Health and Rehabilitative Services (HRS) evidenced its intention to deny SBHD's application for CON 2834 and SBHD requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. That matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of a Hearing Officer and designated DOAH Case No. 84-0235.

   
   

7. Thereafter, in 1985, SBHD filed another application with HRS, designated as CON application No. 4019, for authorization to develop and operate a 100-bed satellite hospital in southwest Broward County by transferring 100 beds from Memorial Hospital. After HRS's initial denial of that application, SBHD requested a formal hearing and the matter was referred to DOAH. That case was assigned DOAH Case No. 85-3940, and was consolidated with the other application of SBHD, DOAH Case No. 84-0235.

   
   

8. On April 11, 1986, SBHD updated its two applications to construct the satellite hospital, by proposing to transfer 100 beds from Memorial Hospital to the new facility, which would be composed of 92 medical/surgical beds and 8 intensive care beds. Subsequently, SBHD agreed to the retirement of 25 additional medical/surgical beds from Memorial Hospital upon the opening of its satellite facility, HRS agreed to support such project, and SBHD's application

   was duly updated. Accordingly, when the final hearing was held in DOAH Case Nos. 84-0235 and 85-3940 on September 12-16, 1986, October 22, 1986, and

   December 1, 1986, the issue was:

   
   

   . . . whether South Broward Hospital District's (District) application for a certificate of need to build and operate a satellite facility in southwest Broward County by transferring 100 beds and retiring 25 medical/surgical beds from its existing facility should be granted.

   
   

9. On August 4, 1987 a recommended order was rendered in DOAH Case Nos.

   84-0235 and 85-3940, which recommended that SBHD's application be denied. While recommending denial, such order ultimately metamorphosed into a final order, discussed infra, granting SBHD's application, and adopting a number of the findings of fact set forth in the recommended order. Those findings adopted included the recognition of the agency's evolving policy relating to bed transfers and relocation, as well as its consideration of a reduction of excess capacity within the district as affecting its decision to support such transfer. Specifically, the order noted:

   
   

   1. The Department has formulated a draft policy with respect to standards for evaluating applications to transfer beds or convert facilities. This policy was first written on August 7, 1986, and is based on the agency's prior experience in health planning.

   2. The Department's general policy for transfers and conversions is to try to "work off" any overbedding in a service district when approving transfers by requiring bed retirement as a condition to the approval of transfers.

   3. This strategy is the Department's attempt to reduce the excess of licensed and approved medical/surgical beds. The Department does not believe it possesses statutory authority to delicense acute care beds or retire acute care beds. Voluntary reduction of surplus beds in conjunction with applications to transfer beds or convert facilities provides one means for

      reduction of the number of beds in a service district.

      
      

10. While the hearing officer observed that the agency did not believe it possessed the statutory authority to require the retirement or delicensure of acute care beds as a precondition for approval of a CON application, such observation, considering other findings of the hearing officer and the proof in this case, does not suggest that a proposed reduction in beds was not a legitimate factor for the agency to consider when evaluating an application and deciding whether it does or does not, on balance, satisfy relevant statutory and rule criteria. 1/ Indeed, one criteria to be considered in evaluating a CON application is its consistency with the State and Local Health Plan. At the time SBHD's application was reviewed, the State Health Plan set an appropriate ratio of medical/surgical beds to the population as a ratio of 4.11 to 1,000. Broward County (District X) was significantly overbedded at the time, with a medical/surgical bed ratio of approximately 5.1 to 1,000 and the Local Health

    Plan encouraged a reduction of licensed beds to achieve a ratio of 4.5 to 1,000 by 1988. Moreover, a proposed reduction in beds could also influence other criteria, such as, access, efficiency, and utilization.

    
    

11. Following rendition of the recommended order on August 4, 1987, SBHD's pursuit of CON 4019 to final order took a tortuous route. In this regard, a final order of the agency dated August 18, 1988 observed:

    
    

    A prior invalid order of October 7, 1987, was vacated by order of February 29, 1988. After the order of February 29 was submitted to the First District Court of Appeal pursuant to relinquishment of its jurisdiction, the appeal of the final order was dismissed. Petitioner

    [SBHD] then moved for entry of a new final order. By order of June 27, 1988, the case was then remanded to the Division of Administrative Hearings for reevaluation of the merits of the application

    and additional findings based on the existing record, consistent with the rulings on exceptions by the Department contained in the Order of Remand. The Division of Administrative Hearings, by order of

    July 26, 1988, declined remand and ordered that the record be returned to the Department for entry of final order.

    
    

    The order then proceeded to adopt, except as specifically noted, the findings of fact and conclusions of law set forth in the recommended order, and granted SBHD's application for CON 4019. SBHD's pursuit of its CON had not, however, met fruition.

    
    

12. The final order of August 18, 1988, "was quashed on procedural grounds by the First District Court of Appeal in an Order dated September 15, 1988". Subsequently, by "order dated December 13, 1988, the District Court dismissed [the case] on the basis of a voluntary dismissal by the parties". The agency then observed that "it is now time for the disposition of the application for CON 4019." Accordingly, by final order rendered December 21, 1988, the agency resolved:

    
    

    . . . I conclude that CON 4019 should be approved for the reasons set forth in the Order rendered August 18, 1988. Therefore, the Order rendered August 18, 1988, is incorporated by reference.

    
    

    Based on the foregoing, it is ADJUDGED that the application of South Broward Hospital District for certificate of need number 4019 to construct a satellite facility in south- western Broward County be APPROVED.

    
    

13. Consistent with that final order, CON 4019, dated December 29, 1988, with an issue date of December 21, 1988, was granted to SBHD. As heretofore noted, the certificate, consistent with SBHD's updated application, included the requirement that an additional 25 medical/surgical beds would be retired at Memorial Hospital upon the opening of Memorial Hospital West.

    The validity of the provision of CON 4019 requiring retirement of 25 medical/surgical beds.

    
    

14. Here, SBHD has challenged the propriety of respondent's delicensure of

    25 medical/surgical beds at Memorial Hospital based on the contention that the provision of CON 4019, which provided for the retirement of 25 medical/surgical beds upon the opening of Memorial Hospital West, was invalid. SBHD's contention, as well as the proof offered to support it, is unpersuasive.

    
    

15. In support of its contention, SBHD offered proof a hearing that it was HRS that initiated the proposal to retire beds, and that HRS did not have the unilateral authority to "require" the retirement or delicensure of beds as a prerequisite or condition for approval of a CON application. 2/ Accepting that HRS initiated the dialogue, as well as the fact that HRS could not unilaterally require SBHD to retire beds, does not, however, compel the conclusion that the provision for the retirement of beds was invalid. To the contrary, as heretofore discussed, overbedding in District X was of legitimate concern to HRS, a reduction of beds was an appropriate consideration in the course of CON review, and SBHD elected to update/amend its application to include such a reduction and thereby garner HRS support in the face of opposition from other competitors. Accordingly, that HRS could not "require" SBHD to retire beds is irrelevant. SBHD updated/amended its application and affirmatively proposed, as part of its project, a reduction of beds. Such reduction was an integral part of the project reviewed and ultimately approved, and was a factor appropriately considered by the agency in evaluating the application.

    
    

16. Finally, to support its contention that the provision of CON 4019 requiring the retirement of 25 beds was invalid, SBHD suggests, essentially, that the update/amendment of its application to include such a proposal was inappropriate or contrary to law. Such contention, as well as the proof offered to support it, is likewise unpersuasive.

    
    

17. Rather, the credible proof demonstrates that, at all times material to the subject application, HRS had no policy and there existed no rule or statute, that precluded an update or an amendment to an application for a CON during the course of an administrative proceeding. Accordingly, the amendment by SBHD of its application to include a provision for the retirement of 25 medical/surgical beds was not improper, and such provision can hardly be characterized as invalid. 3/

    
    

    The request to modify CON 4019 to delete the requirement that

    25 medical/surgical beds be retired.

    
    

18. Accepting the validity of the provision of CON 4019 requiring the retirement of 25 medical/surgical beds, and therefore the propriety of the agency's decision to delicense those beds, SBHD has requested that the CON be modified to delete such requirement due to changed circumstances since its issuance. The agency opposes SBHD's request, contending that the change in bed capacity requires CON review.

19. Pertinent to this case, Rule 59C-1.019, Florida Administrative Code, establishes the procedure and the circumstances under which a certificate of need holder may seek a "modification" of a certificate of need. For purposes of the rule, "modification" is defined as:

    
    

    . . . an alteration to an issued, valid certificate of need or to the condition or conditions on the face of a certificate of need for which a license has been issued, where such an alteration does not result in a project subject to review as specified

    in . . . subsection 408.036(1) . . . Florida Statutes.

    
    

    Rule 59C-1.019(1), Florida Administrative Code.

    
    

20. Subsection 408.036(1), Florida Statutes, provides in pertinent part:

    
    

    . . . all health-care-related projects, as described in paragraphs (a)-(n), are subject to review and must file an application for a certificate of need with the department. The department is exclusively responsible for determining whether a health-care- related project is subject to review under ss.

    381.701-381.715.

    * * *

    (e) Any change in licensed bed capacity.

    
    

21. In this case, the agency contends that the CON cannot be modified to delete the 25-bed retirement provision because such alteration would result in a "change in licensed bed capacity," and therefore a project subject to CON review. Contrasted with the agency's position, SBHD contends that it timely challenged the agency's decision to delicense the 25 beds, based on its contention that the provision requiring the retirement of beds was invalid, and "there can be no actual change in licensed bed capacity at Memorial Hospital prior to final resolution of . . . this proceeding." [SBHD proposed recommended order, at p.17]. As stated by SBHD,

    
    

    Rather than seeking to change its licensed bed capacity, SBHD is opposing a change in

    its licensed bed capacity in order to maintain

    the status quo. [SBHD proposed recommended order, at p. 17].

    
    

    Considering the provisions of law and analysis, as discussed in the conclusions of law infra, it is concluded that the agency's position is founded upon a reasonable interpretation of law and is, therefor, accorded deference. 4/

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

23. At issue in this proceeding is whether the provision of CON 4019 requiring the retirement of 25 medical/surgical beds at Memorial Hospital upon the opening of Memorial Hospital West is invalid and, if not, whether SBHD's requested modification to delete such provision from its CON should be approved. As the protestant/applicant, SBHD has the burden of demonstrating the invalidity

    of the CON provision, as well as its entitlement to the modification. Florida Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977). Here, SBHD has failed to sustain its burden of proof.

    
    

24. Having concluded, as noted in the findings of fact, that SBHD failed to demonstrate the existence of any statute, rule, or policy (assuming an unarticulated or unexplicated policy would even be relevant) prohibiting the update/amendment of its CON application prior to hearing in 1988, as well as having failed to demonstrate that the subject of delicensure of beds was not a matter of legitimate interest to the agency, SBHD failed to demonstrate that the condition of CON 4019 requiring delicensure of the 25 beds was invalid. Under such circumstances, it must be concluded that the agency's decision to delicense those beds upon the opening of Memorial Hospital West through license number 3289, dated May 12, 1992, and delivered to SBHD by letter of June 3, 1992, was not only appropriate under the terms of CON 4019, but mandated by law. See, Sections 408.034(2) and 408.036(1)(e), Florida Statutes, and Rules 59A-3.153(11) and 59C-1.020, Florida Administrative Code.

    
    

25. Having resolved that the agency's decision to delicense the additional

    25 beds at Memorial Hospital, consistent with the provisions of CON 4019, was proper, it is now appropriate to address SBHD's application for a modification of that CON.

    
    

26. Pertinent to this case, Rule 59C-1.019(1), Florida Administrative Code, permits the modification/alteration of:

    
    

    . . . an issued, valid certificate of need or to the condition or conditions on the face of a certificate of need for which a license has been issued, where such alteration does not

    result in a project subject to review as specified in . . . subsection 408.036(1) . . . Florida Statutes.

    
    

    And, subsection 408.036(1)(e), Florida Statutes, provides that a proposal which seeks "any change in licensed bed capacity" is subject to certificate of need review.

    
    

27. Here, the agency contends that the CON cannot be modified to delete the 25-bed retirement provision because such alteration would result in a "change in licensed bed capacity," and therefore a project subject to CON review. Contrasted with the agency's position, SBHD contends that it timely challenged the agency's decisions to delicense the 25 beds, based on its contention that the provision requiring their retirement was invalid, and "there can be no actual change in licensed bed capacity at Memorial Hospital prior to the final resolution of . . . this proceeding." Accordingly, SBHD concludes, it is not "seeking to change its licensed bed capacity" but, rather, "is opposing such change in order to maintain the status quo". Therefore, SBHD suggests its request for modification does not result in a "change in licensed bed capacity".

    
    

28. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation

    v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla.

    1st DCA 1982). The same deference has been accorded to rules and to the meaning assigned them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Services Commission, 427 So.2d 716 (Fla.

    1983); and State Department of Commerce, Division of Labor v. Matthews Corp.,

    358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra; and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983).

    
    

29. Whether SBHD's request for modification would result in a "change in licensed bed capacity" is dependent upon first resolving its protest of the agency's decision to delicense the additional 25 beds at Memorial Hospital. Once, as here, it has been concluded that the agency's decision was appropriate and mandated by law, as discussed infra, it concomitantly follows that SBHD's subsequent request for modification necessarily entailed, as urged by the agency, a "change in licensed bed capacity." Stated otherwise, SBHD's unsuccessful challenge to the agency's delicensure of beds does not extend the status quo beyond the resolution of that protest and cannot serve, once the propriety of the agency's decision to delicense is established, to maintain the status quo through consideration of a request for modification that post dated the time delicensure was required by law.

    
    

30. The foregoing conclusion harmonizes the provisions of Rule 59C-1.020, Florida Administrative Code, which mandates that the agency "will only issue a license to a holder of a certificate of need for a health care facility . . . in accordance with the certificate of need," and the provisions of Section 408.036(1)(e), Florida Statutes, which stipulates that a project which proposes a change in licensed bed capacity must undergo CON review. Such conclusion is also consistent with the agency's modification rule, which requires, as a prerequisite to an application for modification, the existence of "an issued, valid certificate of need . . . for which a license has been issued." Rule 59C- 1.019(1), Florida Administrative Code, (emphasis added). Accordingly, given that the propriety of the license issued for CON 4019 is at issue, the appropriateness of that license or any licensure must first be resolved before SBHD's request for modification can properly be addressed. Finally, such procedure accords due deference to SBHD's right to a hearing on the agency's proposed delicensure of the beds, and affords it the opportunity to change the agency's mind. Section 120.60, Florida Statutes, and Mercedes Lighting and Electrical Supply, Inc. v. Department of General Services, 560 So.2d 272 (Fla. 1st DCA 1990).

    
    

31. Considering the foregoing, the agency's interpretation of its modification rule as precluding, under the facts of this case, SBHD's requested modification is permissible and not clearly erroneous. Accordingly, the agency's refusal to approve SBHD's requested modification was appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing SBHD's protest to the

delicensure of 25 acute care beds at Memorial Hospital, and denying SBHD's request to modify certificate of need number 4019 to delete the requirement that

25 acute care beds be retired.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of September 1994.

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 23rd day of September 1994.

ENDNOTES

1/ As an abstract statement, the hearing officer's observation, that "the Department does not believe it possesses statutory authority to delicense acute care beds or to retire acute care beds", is wrong. The agency certainly possesses such authority under its licensure laws. Chapter 395, Florida Statutes.

2/ There is no suggestion or proof which demonstrates any improper conduct on the part of HRS in its discussions with SBHD relating to a reduction of beds or its decision to support the application, as amended, proposing such reduction.

3/ In reaching the foregoing conclusion, it has not been overlooked that currently an applicant cannot amend or modify its CON application, and that the agency cannot approve an item or condition not contained in the written CON application. That prohibition exists, however, by virtue of Rule 59C- 1.010(2)(b), Florida Administrative Code, and such rule was not shown to have been in effect at any time material to these proceedings. Indeed, in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st DCA 1986), the court expressly recognized an applicant's opportunity to update its application under rules existent at that time. Given SBHD's update in this case, without apparent objection, and its acceptance by the hearing officer and ultimately the agency through final order, it is presumed, there being no proof to the contrary, that such amendment was consistent with existent law. See, Atlantic Coast Line R. Co. v. Mack, 57 So.2d 447, 452 (Fla. 1952), ("It is presumed that persons will observe the law . . .

.")

Also not overlooked in reaching the foregoing conclusion was the testimony of Marta Hardy that by the "latter part of 1986 or the early part of 1987", HRS had "started to come to terms with the results of the Gulf Court decision, which, in fact . . . precluded [HRS] from entering into at [sic] settlement which would have included items which were not in the . . . original application" (T.49) Such testimony evidences misplaced reliance on Gulf Court, particularly as to the facts of this case. Indeed, as heretofore noted, Gulf Court specifically recognized an applicant's ability to update its application under law existent at that time. Moreover, to the extent such testimony was offered to evidence a change in agency policy subsequent to the hearing on SBHD's application it does not affect the propriety of SBHD's amendment to its application and was not, in any event, reasonably explicated. In sum, SBHD

failed to demonstrate that its amendment to its application was contrary to law then existent, statutory or rule, and no policy existed at that time prohibiting such amendment. Accordingly, the amendment was not invalid.

4/ Having reached such conclusion it is unnecessary to address the sufficiency of SBHD's evidence to demonstrate good cause for the requested modification.

See, Rule 59C-1.019(2) and (3), Florida Administrative Code. Indeed, the agency has, under the circumstances, declined to offer its position on such matter. [Respondent's proposed recommended order, at p. 6]. To the extent respondent's proposed finding of fact number 9 suggests otherwise, it is rejected as unnecessary to the result reached, and the propriety of such proposed finding is not addressed. Indeed, whether the proof demonstrates good cause under Rule

59C-1.019(2) and (3), Florida Administrative Code, is subject to legitimate debate and not here resolved.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2 & 3. Adopted in paragraph 2.

4 & 5. Adopted in paragraphs 3 and 4.

1. Addressed in paragraphs 7 and 8.

2. Addressed in paragraphs 6 and 7.

8 & 9. Addressed in paragraph 8, otherwise unnecessary detail. 10-12. Addressed in paragraphs 9 and 11-13.

13 & 14. Addressed in paragraphs 9 and 10, and endnotes 1 and 3.

1. Addressed in paragraph 4

2. Addressed in paragraph 5.

17-23. Unnecessary to the result reached. See endnote 4.

1. Addressed in paragraphs 7 and 8.

2. Addressed in paragraph 15 and endnote 3.

3. Addressed in paragraphs 9, 10 and 15.

4. Addressed in paragraph 15.

28-30. Addressed in paragraph 17 and endnote 3, or subordinate or unnecessary detail.

31. Addressed in paragraphs 11 and 12.

32-35. Unnecessary to the result reached. See endnote 4. Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 3 and 4.

2. Addressed in paragraph 7.

3. Addressed in paragraphs 8 and 15.

4. Addressed in paragraph 8.

5. Addressed in paragraph 3.

6 & 7. Addressed in paragraph 5.

1. Addressed in paragraph 21.

2. Unnecessary to the result reached. See Endnote 4.

COPIES FURNISHED:

Richard A. Patterson Senior Attorney

Agency for Health Care Administration

301 The Atrium

325 John Knox Road

Tallahassee, Florida 32303-4131

Geoffrey D. Smith, Esquire Blank, Rigsby & Meenan, P.A.

204 South Monroe Street Tallahassee, Florida 32301

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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: 93-006859CON

Orders for Case No: 93-006859CON