STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OKALOOSA HOSPITAL, INC., d/b/a, ) TWIN CITIES HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5476

)

AGENCY FOR HEALTH CARE ) ADMINISTRATION, and SOUTHERN ) MEDICAL ASSOCIATES, INC., )

)

Respondents. )

)

ORDER FOR REMAND

Procedural History and Undisputed Facts

1. On March 13, 1996, a final hearing was scheduled in the above referenced matter. Prior to the commencement of the final hearing, the undersigned hearing officer considered several pending motions, including a Motion for Summary Recommended Order. (Attachment A).

   
   

2. The Petitioner's Motion for Summary Recommended Order contains two issues. The first issue relates to the authenticity and correctness of the corporate resolution contained in the Respondent, Southern Medical Associates, Inc.'s (SMA's), Application for Certificate of Need. Specifically, the Petitioner asserts that SMA failed to comply with the requirements of Section 408.039, Florida Statutes, by failing to produce corporate minutes supporting the underlying corporate resolution.

   
   

3. SMA has filed responses in opposition to the Petitioner's motion. (Attachments B and C). In addition, SMA asserts that genuine issues of material fact remain that would preclude an entry of award of summary recommended order.

   
   

4. After extensive arguments relating to the sufficiency of the corporate resolution, the Petitioner conceded that the issue relating to the sufficiency of the corporate resolution might require additional discovery before being fully developed. In essence, the Petitioner conceded that this issue is not ripe for summary disposition.

   
   

5. The second issue raised in the motion for summary recommended order relates to the requirement of disclosing, in the certificate of need application, any capital projects that were planned, approved, or underway. Specifically, the Petitioner asserts that SMA failed to comply with the requirements of Section 408.037(2)(a), Florida Statutes, and Rule 59C- 1.008(5)(H), F.A.C., by failing to include in its certificate of need application any reference to a second certificate of need project that was filed simultaneously with the instant application.

6. It is undisputed that SMA filed the instant application (CON application 8084) seeking approval for a 32-bed addition to its existing nursing home in Okaloosa County, Florida. At the same time that this application was filed, SMA also filed an application for a certificate of need in Santa Rosa County (CON application 8081). The Petitioner asserts that SMA failed to comply with the requirements of Section 408.037(2)(a), Florida Statutes, because SMA failed to disclose the pending Santa Rosa County CON project in the Okaloosa County CON application. The Petitioner asserts that the failure to disclose pending capital projects is a fatal flaw to SMA's Okaloosa County CON application.

   
   

7. SMA counters that this matter is not ripe for consideration because genuine issues of material fact remain. Specifically, SMA asserts that subsequent to the filing of the Santa Rosa County CON application, the project was abandoned and that it was therefore not necessary to amend its Okaloosa County application to include the Santa Rosa County CON. SMA offered support for its argument by referring to Exhibit A, included in its Memorandum in Opposition to Petitioner's Motion for Summary Recommended Order. (Attachment C). SMA maintains that Exhibit A memorializes its intent to abandon the Santa Rosa County project.

   
   

8. At the hearing, SMA asserted that the issue of abandonment represented a disputed material fact that precludes entry of a summary recommended order.

   In response to SMA's assertion, the Petitioner agreed not to contest the facts asserted by SMA relating to its intent to abandon the Santa Rosa County project. The Petitioner maintains, however, that even with the evidence of abandonment, SMA failed as a matter of law to comply with the requirements of Section 408.037(2)(a), Florida Statutes, and Rule 59C-1.008(5)(h), F.A.C.

   
   

   CONCLUSIONS OF LAW

   
   

9. Rule 60Q-2.030, F.A.C., relates to summary disposition, and provides that "[a]ny party to a proceeding which a hearing officer of the Division has [final order authority] may move for summary final order, whenever there is no genuine issue as to any material fact." [emphasis provided].

   
   

10. Section 408.039(5)(b), Florida Statues, provides hearing officers with the authority to render recommended orders in matters relating to certificates of need.

    
    

11. Only the Department (Agency for Health Care Administration) is authorized with final order authority in certificate of need matters. Section 408.039(5)(c), Florida Statutes.

    
    

12. In light of the foregoing and because there are no genuine issues of disputed fact, the undersigned has prepared a recommendation for the Department's disposition of the Motion for Summary Recommended Order.

    
    

13. Section 408.037(2)(a), Florida Statutes, relates to the contents for certificate of need applications and provides that a certificate of need application shall contain "a complete listing of all capital projects, including new health facility development projects and health facility acquisitions applied for, pending, approved, or underway in any state at the time of application. "

14. Rule 59C-1.008(5)(h), F.A.C., also describes what capital projects should be listed and provides that a listing of all capital projects shall be provided "at the time of initial application submission."

    
    

15. At the time of the initial application for the Okaloosa County project (CON application 8084), SMA did not list the Santa Rosa project as a capital project.

    
    

16. No evidence exists that would indicate that prior to the omissions deadline for the Okaloosa County application, SMA supplemented its application to reference the Santa Rosa County project.

    
    

17. Based on the undisputed facts recited above, section 408.037(2)(a), Florida Statutes, and rule 59C-1.008(5)(h), F.A.C., SMA failed to submit an application that met the statutory minimum content requirements because it failed to include the Santa Rosa County project in the Okaloosa County certificate of need application.

    
    

18. While SMA'a omissions do not appear substantial and ultimately may have no impact on its ability to finance the Okaloosa County project, it appears that construction of the statute and rule demands that the SMA application for CON 8084 be dismissed as incomplete.

Based on the memoranda filed in support of and in opposition to the motion for summary recommended order and on the argument of counsel, it is

ORDERED:

1. This matter is remanded to the Agency for Health Care Administration for entry of an order granting the Petitioner's Motion for Summary Final Order.

   
   

2. Jurisdiction in this case is hereby relinquished to the agency for determination of the Motion for Summary Recommended Order.

   
   

3. The file of the Division of Administrative Hearings in the above-styled matter, Case No. 95-5476, is hereby CLOSED.

DONE AND ORDERED this 27th day of March, 1996, in Tallahassee, Leon County, Florida.

WILLIAM A. BUZZETT, 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 27th day of March, 1996.

COPIES FURNISHED:

Richard A. Patterson, Esquire Senior Attorney

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Elizabeth McArthur, Esquire RADEY, HINKLE, THOMAS & MCARTHUR

Post Office Drawer 11307 Tallahassee, Florida 32302

Gary J. Anton, Esquire Sandra P. Stockwell, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Docket for Case No: 95-005476CON

Orders for Case No: 95-005476CON