lo. 4.97 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION P&C /2 oF CARE FIRST, INC., et al., ee a ULEbg Petitioners, vs. DOAH CASES NO. 96-4053 through 96-4056 AGENCY FOR HEALTH CARE RENDITION NO.: AHCA-97-937-FOF-CON ADMINISTRATION, . j DMM-Closed 4 oa Respondent. ” / , Ag FINAL ORDER This cause came on before me for the purpose of issuing a final agency order. he: 2, oy Administrative Law Judge (ALJ) assigned by the Division of Administrative Hearings (DOAH) in the above-styled cases submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order, entered June 9, 1997 by ALJ David M. Maloney, is incorporated by reference except as otherwise indicated. RULING ON EXCEPTIONS FILED BY RESPONDENT Respondent excepts to various findings of fact made by the ALJ as to three of the four Petitioners herein: that is, Care First, Inc., Putnam Home Health, Inc., and RHA/Florida Operations, Inc. No exceptions were filed as to Petitioner Home Health Integrated Health Services of Florida, Inc. Respondent’s exceptions are ruled upon as follows. Care Fi As to Care First, Respondent’s exceptions to paragraphs 16, 17, 20, 21, 23, 26, 27, and 30 are sustained. The ALJ’s findings contained in those paragraphs are simply not supported by competent, substantial evidence in the record. See, DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. Ist DCA 1985). Heifetz states that factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer (now ALJ) as the finder of fact; accordingly, the ALJ may draw reasonable factual inferences from the evidence. 475 So.2d at 1281. The inferences drawn in paragraphs 16, 17, 20, 21, 23, 27 and 30 have no reasonable basis in the record. Further, the inferences drawn in paragraphs 26 and 30 are not only factual inferences, but also conclusions of law that Care First’s proposal is financially feasible. See, Section 408.035(1)(i), F.S. At the time of the administrative hearing in December, 1996, Care First was not the thriving home health provider represented in its application for CON 8381. Instead, it had ceased all operations, had no operating income, and its assets, if any, were negligible. Rather than “continuing to grow” as its application asserted, Care First would be starting over. The assumptions underlying its projected visits and, thus, projected revenues, had no basis by the time of the hearing. Further, the record of the hearing contains no substantial, competent evidence of the “referral network” which supposedly “remains in place” and which would presumably support Care First’s proposal. By the time of the hearing, Care First’s own financial feasibility as an entity was questionable, and there was no factual basis for a finding of its ability to follow through with the proposal. Putnam As to Putnam, Respondent’s exception to paragraph 185 is sustained. There was no substantial, competent evidence from which an inference could be drawn that non-rural Bay ‘County is “underserved” in terms of home health services. Furthermore, the ALJ’s finding of fact as to Bay County is infused with policy considerations as to what constitutes an “underserved” area. The remaining exceptions as to Putnam are denied. See, Heifetz, supra. RHA/Florida Operations As to RHA/Florida Operations, Respondent’s exceptions mostly concern the absence of any findings in the Recommended Order as to reasonableness of projected visits. While this omission in the Recommended Order is curious, the Agency declines to formulate its own findings of fact in this Final Order. The exception as to paragraph 150 is granted, as there are fourteen (14) counties in District 2. The exceptions are otherwise denied. Heifetz, supra. FINDINGS OF FACT The Agency adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the ruling on exceptions. CONCLUSIONS OF LAW The Agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the ruling on exceptions. In this particular case, it bears noting that the purpose of a formal administrative hearing is to provide the agency whose preliminary action is in question a chance to reconsider its decision. Capeletti Bros., Inc. v. State Dept. of General Services, 432 So.2d 1359. Relatedly, the interpretation of a statute rendered by an agency charged with its implementation is entitled to great weight. Shel] Harbor Group, Inc, v, D.P.R., 487 So.2d 1141 (Fla. 1st DCA 1986); D.E.R. v. Goldring, 477 So.2d 532 (Fla. Ist DCA 1985). An applicant for a certificate of need bears the burden of proving, by a preponderance of the evidence, compliance with applicable statutory and rule criteria. Boca Raton Artificial Kidney Center v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. Ist DCA 1985). Care First did not meet that burden in this case. Based upon the foregoing, it is ADJUDGED, that the application of RHA/Florida Operations, Inc. for CON 8380, the application of Home Health Integrated Health Services of Florida, Inc. for CON 8382, and the application of Putnam Home Health, Inc. for CON 8383 be approved. The application of Care First, Inc. for CON 8381 is denied. DONE AND ORDERED this 11th day of December, 1997. Qukdr te Qeh DOU SM. COOK Director Agency for Health Care Administration COPIES FURNISHED: W. David Watkins, Esquire Watkins, Tomasello & Caleen 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 Mark A. Emanuele, Esquire Panza, Maurer 3600 North Federal Highway Ft. Lauderdale, Florida 33308 ‘ Paul R. Amundsen, Esquire Amundsen & Moore 502 East Park Avenue Tallahassee, Florida 32301 Richard M. Ellis, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of the Agency for Health Care Administration, and a second copy along with the filing fee as prescribed by law, with the First District Court of Appeal or the District Court of Appeal where the party resides. Review proceedings shall be conducted in accordance with the Florida Rules of Appellate Procedure. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 96-004056CON

Orders for Case No: 96-004056CON