STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROVIDENCE HOME HEALTH CARE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-0036

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent, )

and )

)

PERSONAL TOUCH HOME HEALTH )

SERVICES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Final hearing was held in Tallahassee, Florida, on March 24, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Robert E. Senton

Post Office Box 963

Tallahassee, Florida 32302

For Respondent: Richard A. Patterson

Assistant General Counsel

Agency for Health Care Administration

325 John Knox Road, Suite 301 The Atrium Tallahassee, Florida 32303

For Intervenor: Attorney Alfred W. Clark

117 South Gadsden Street, Suite 201 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application for a certificate of need was complete.

PRELIMINARY STATEMENT

By letter dated November 7, 1994, Respondent informed Petitioner that its application for a certificate of need had been administratively withdrawn for failure to respond to previously noted omissions.

By letter dated December 10, 1994, Petitioner demanded a hearing.

At the hearing, Petitioner called two witnesses and offered into evidence one exhibit, which was excluded. Respondent called three witnesses and offered into evidence eight exhibits, which were admitted. Intervenor called no witnesses and offered no exhibits into evidence.

No transcript was ordered. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. Petitioner and Intervenor each filed applications in the same batching cycle for certificates of need to establish Medicaid-certified home health agencies in Collier County, District 8.

   
   

2. By letter dated October 6, 1994, Respondent advised Petitioner that its application omitted certain elements. The letter requests, among other things, an "audited financial statement," including a balance sheet and profit-and-loss statement for the previous two years' operation.

   
   

3. Petitioner's application contained an unaudited financial statement for the part of the year that it had been operation. Incorporated in 1994, Petitioner had been receiving patients only since September or October 1994.

   
   

4. Petitioner's agent contacted a representative of Respondent and discussed the omissions letter. A misunderstanding ensued in which Petitioner's agent thought that Respondent's representative said that Petitioner would not be required to submit an audited financial statement because Petitioner had not been in operation for a full fiscal year. In fact, Respondent's representative did not say that.

   
   

5. Respondent's policy is to permit applicants to file audited financial statements for a partial year, if that is how long they have been in business. For example, Intervenor included with its application an audited financial statement covering the six-week period that it had been in existence.

   
   

6. In this case, it would have been possible for Petitioner to obtain an audited financial statement for a period of time including at least its first month of operation.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

8. Petitioner has the burden of proving its entitlement to

   the certificate of need for which it has applied. Department of Transportation

   v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   
   

9. Section 408.037(3), Florida Statutes, requires that an application for a certificate of need contain an "audited financial statement," including a "balance sheet and a profit- and-loss statement of the previous 2 fiscal years' operation."

10. It is doubtful whether Petitioner's claim of waiver or estoppel by Respondent's representative is legally sufficient to dispense with the satisfaction of a statutory requirement. See, e.g., Humhosco v. Department of Health and Rehabilitative Services, 561 So. 2d 388 (Fla. 1st DCA 1990). In any event, the facts do not support such a claim.

RECOMMENDATION

It is hereby

RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing Petitioner's challenge to the administrative withdrawal of the subject application for a certificate of need.

ENTERED on April 24, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on April 24, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings 1-6: rejected as subordinate.

7-8: rejected as unsupported by the appropriate weight of the evidence. 9: adopted or adopted in substance.

10-11: rejected as not finding of fact.

12-14: rejected as recitation of evidence.

15: rejected as unsupported by the appropriate weight of the evidence.

Rulings on Proposed Findings of Respondent and Intervenor All are adopted or adopted in substance.

COPIES FURNISHED:

Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Attorney Robert E. Senton

P.O. Box 963 Tallahassee, FL 32302

Richard A. Patterson Assistant General Counsel

Agency for Health Care Administration

325 John Knox Road Suite 301--The Atrium Tallahassee, FL 32303

Attorney Alfred W. Clark

117 South Gadsden Street Suite 201

Tallahassee, FL 32301

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: 95-000036CON

Orders for Case No: 95-000036CON