STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

RENDITION NO.: AHCA-10- 01au -FOF-CON

CON NO. 10009

FILED

AHCA

AGENCY CLERK

ZOIO FEB I b A l .I . i

SHANDS TEACHING HOSPITAL AND CLINICS, INC. d/b/a SHANDS REHAB HOSPITAL,

Petitioner,

V. DOAH CASE NO. 08-3814CON

AHCA CASE NO. 2008009060

HEALTH SOUTH REHABILITATION HOSPTIAL OF OCALA, LLC and STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondents.

I LEESBURG REGIONAL MEDICAL CENTER, INC.,

Petitioner,

V. DOAH CASE NO. 08-3815CON

AHCA CASE NO. 2008009059

HEALTH SOUTH REHABILITATION HOSPTIAL OF OCALA, LLC and STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondents.

I

FINAL ORDER

This case was referred to the Division of Administrative Hearings (DOAH) where the assigned Administrative Law Judge (ALJ), Charles A. Stampelos, conducted a formal administrative hearing. At issue in this proceeding is whether HealthSouth Rehabilitation Hospital of Ocala, Inc.' s ("HS-Ocala") CON Application No. 10009 for a new free-standing 40-

Filed February 18, 2010 3:12 PM Division of Administrative Hearings.

bed comprehensive medical rehabilitation ("CMR") hospital in Marion County, Agency for Health Care Administration ("AHCA" or "Agency") District 3, should be approved. The Recommended Order dated November 24, 2009 is attached to this final order and incorporated

herein by reference, except where noted infra.

RULINGS ON EXCEPTIONS

Petitioners, Shands Teaching Hospital and Clinics, Inc. d/b/a Shands Rehab Hospital ("Shands") and Leesburg Regional Medical Center, Inc. ("LRMC") filed joint exceptions to the Recommended Order, and HS-Ocala filed exceptions to the Recommended Order. Shands and LRMC also filed a joint response to HS-Ocala's exceptions.

In determining how to rule on the exceptions and whether to adopt the ALJ's Recommended Order in whole or in part, the Agency for Health Care Administration ("Agency" or "AHCA") must follow section 120.57(1)(1), Florida Statutes, which provides in pertinent part:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has 'substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law....

§ 120.57(1)(1), Fla. Stat. Additionally, "[t]he final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal

basis for the exception, or that does not include appropriate and specific citations to the record."

§ 120.57(1)(k), Fla. Stat.

It is the sole prerogative of the Administrative Law Judge (ALJ) to consider the evidence, resolve conflicts in the evidence, judge the credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on the competent, substantial evidence of record. The Agency may reject an ALJ's findings only where there is no competent,

substantial evidence from which those findings can reasonably be inferred. See Heifetz v. Dep't

of Bus. Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Belleau v. Dep't ofEnvt'l Protection,

695 So.2d 1305 (Fla. 1st DCA 1997); Strickland v. Fla. A&M Univ., 799 So.2d 276, 278 (Fla. 1st DCA 2001. The Agency is not authorized to substitute its judgment for that of the ALJ by taking a different view of or placing greater weight on the same evidence, re-weighing the evidence, judging the credibility of witnesses, or otherwise interpreting the evidence to fit its desired ultimate conclusion. See Prysi v. Dep't of Health, 823 So.2d 823, 825 (Fla. 1st DCA

2002); Strickland, 799 So.2d at 279; Schrimsher v. Sch. Bd. Of Palm Beach County, 694 So.2d

856, 860 (Fla. 4th DCA 1997); Heifetz, 475 So.2d at 1281; Wash & Dry Vending Co. v. Dep't of

Bus. Reg.. 429 So. 2d 790, 792 (Fla. 3d DCA 1983); D'Antoni v. Dept. of Envtl. Prot., 22

F.A.L.R. 2879, 2880 (DEP, May 4, 2000); Brown v. Criminal Justice Standards & Training Comm'n., 667 So.2d 977, 979 (Fla. 4th DCA 1996). Simply put, the Agency may not reject recommended findings of fact when the question turns on the weight or credibility of testimony by witnesses, when the factual issues are otherwise susceptible of ordinary methods of proof, or when the Agency may not claim special insight as to those facts, if the finding is otherwise

supported by competent, substantial evidence. See McDonald v. Dep't of Banking & Fin., 346

So.2d 569, 579 (Fla. 1st DCA 1977); Gross, 819 So.2d at 1002; Schrimsher, 694 So.2d at 860;

See also McGann v. Fla. Elections Comm'n, 803 So.2d 763, 764 (Fla. 1st DCA 2001) (concluding that an agency could not reject ALJ's finding of fact on ultimate issue of

"willfulness" by recasting findings as a conclusion of law); Harac v. Dep't of Prof 1 Reg., 484 So.2d 1333, 1337 (Fla. 3d DCA 1986) (stating that the agency was not permitted to substitute its findings for those of ALJ on issue of architect's "competency," even though the determination of design competency required specialized knowledge and experience, because it is not so unique as to defy ordinary methods of proof in formal adversarial proceedings).

In accordance with these legal standards, the Agency makes the following rulings:

Shands and LRMC's Joint Exceptions

In Exception Number 1, Shands and LRMC take exception to the conclusions of law in Paragraph 385 of the Recommended Order, arguing that the ALJ erred in concluding that the 60- bed minimum requirement for specialty hospitals providing in-patient CMR services was a review criterion that must be balanced and weighed with other statutory and rule criteria. The Agency disagrees. The Agency's interpretation of Rule 59C-l.039(3)(c), Florida Administrative Code, was well-articulated in HealthSouth's Memorandum of Law in Support of Proposed Recommended Order that was filed with DOAH on September 14, 2009 in this matter. The ALJ agreed with that interpretation in Paragraph 385 of the Recommended Order, and the Agency finds that, while it does have substantive jurisdiction over the conclusions of law in Paragraph 385 of the Recommended Order, it could not substitute conclusions of law that are as or more reasonable than those of the ALJ. Therefore, Exception Number 1 is denied.

HS-Ocala's Exceptions

In Exception No. 1, HS-Ocala takes exception to the findings of fact in Paragraphs 46, 67 and 240 of the Recommended Order to the extent that they suggest that HS-Ocala does not

propose to treat spinal cord and brain injury patients. However, what a finding of fact may or may not suggest is not a valid basis upon which the Agency can overturn it. If a finding of fact is based on competent, substantial evidence, the Agency cannot reject or modify it. See Heifetz. The findings of fact in Paragraphs 46, 67 and 240 of the Recommended Order were based on

competent, substantial evidence. See Transcript, Volume 2, Pages 206-207; Transcript, Volume 4, Pages 480-483; Transcript, Volume 5, Pages 566-567; and Transcript, Volume 10, Page 1336. Therefore, Exception No. 1 is denied.

-In Exception No. 2, HS-Ocala takes exception to the findings of fact in Paragraphs 52 and 247 of the Recommended Order to the extent that the findings state there are no independent studies that compare the use of the Autoambulator to other similar devices and no independent studies that indicate that the use of the Autoambulator results in better outcomes for patients compared to similar equipment. HS-Ocala states that these findings are not based on competent, substantial evidence and reject record evidence to the contrary. However, the testimony HS­ Ocala claims the findings reject does not contradict the ALJ's findings, and HS-Ocala did not point to any other record evidence that contradicts the ALJ's findings. Thus, the Agency does not have a valid basis upon which it can reject or modify the findings of fact in Paragraphs 52

and 247 of the Recommended Order. See§ 120.57(1)(/), Fla. Stat.; Heifetz at 1281 (an agency "may not reject the hearing officer's finding [of fact] unless there is no competent, substantial evidence from which the finding could reasonably be inferred"). Therefore, the Agency denies Exception No. 2.

In Exception No. 3, HS-Ocala takes exception to the findings of fact in Paragraph 76 of the Recommended Order, arguing that the ALJ's finding that "[t]here is no persuasive evidence that area hospitals are experiencing problems placing patients in post-acute care settings" was

not supported by competent, substantial evidence. Contrary to HS-Ocala's argument, the finding of fact in question is based on competent, substantial evidence. See Transcript, Volume 12, Pages 1625-1626; and Transcript, Volume 16, Pages 2210-2213. Therefore, the Agency denies Exception No. 3.

In Exception No. 4, HS-Ocala takes exception to the finding of fact in Paragraph 74 of the Recommended Order to the extent that it specifies the factors AHCA considered in its preliminary approval of HS-Ocala' s CON application. HS-Ocala argued the finding of fact was incomplete and not supported by competent, substantial evidence. Incompleteness is not a valid basis upon which the Agency can overturn a finding of fact. Furthermore, contrary to HS­ Ocala's assertion, the finding of fact in Paragraph 74 of the Recommended Order is based on

competent, substantial evidence. See Transcript, Volume 17, Pages 2327-2390. Therefore, the

Agency denies Exception No. 4.

In Exception No. 5, HS-Ocala takes exception to the findings of fact in Paragraph 78 of the Recommended Order to the extent that it states that most of the letters of support were not authenticated. HS-Ocala is asking the Agency to review an evidentiary ruling by the ALJ, which

is outside of the Agency's substantive jurisdiction. See Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001). Therefore, the Agency must deny Exception No. 5.

In Exception No. 6, HS-Ocala takes exception to the findings of fact in Paragraph 100 of the Recommended Order, arguing that they were contradicted by competent, substantial evidence. While HS-Ocala's argument may be true, the findings themselves were based on

competent, substantial evidence (See Transcript, Volume 2, Pages 112-113; Transcript, Volume 4, Pages 530-531; Transcript, Volume 9, Pages 1230-1233; Transcript, Volume 12, Pages 1531-

1555, 1566-1568, 1601-1602 and 1623-1624; Transcript, Volume 14, Pages 1869-1870, 1879-

1880 and 1884-1888; and Transcript, Volume 17, Pages 2358-2359), and thus the Agency is

prohibited from rejecting or modifying them. See § 120.57(1)(1), Fla. Stat.; Heifetz. Therefore, the Agency denies Exception No. 6.

In Exception No. 7, HS-Ocala takes exception to the findings of fact in Paragraph 131 of the Recommended Order to the extent that the ALJ found that the number of patients in the ultra­ high and high RUG therapy categories is consistent with statewide averages and is normal. HS­ Ocala argued that the finding was contrary to the evidence. However, the ALJ's findings are supported by competent, substantial evidence. See Transcript, Volume 7, Pages 927-932; Transcript, Volume 9, Pages 1230-1233; and HS-Ocala Exhibit 43. Thus, the Agency cannot

reject or modify them. See§ 120.57(1)(1), Fla. Stat.; Heifetz. Therefore, the Agency must deny Exception No. 7.

In Exception No. 8, HS-Ocala takes exception to the findings of fact in Paragraph 134 and 136 of the Recommended Order, arguing that the ALJ erred in finding that "the care provided through SNFs in the Ocala area is appropriate and produces quality outcomes, " and that "[o]verall, patients receiving rehabilitation services in the Ocala area appear to be receiving appropriate care, and the quality and intensity of care being provided by the existing SNF rehabilitation providers is equivalent to, if not better, than national averages." However, the findings of fact in Paragraphs 134 and 136 of the Recommended Order were based on

competent, substantial evidence. See Transcript, Volume 1, Pages 75-76; Transcript, Volume 4, Pages 530-531; Transcript, Volume 9, Pages 1230-1233; Transcript, Volume 12, Pages 1623-

1624; Transcript, Volume 14, Pages 1869-1870, 1879-1880 and 1884-1888; and HS-Ocala Exhibit 43. Thus, the Agency cannot overturn them. See § 120.57(1)(1), Fla. Stat.; Heifetz. Therefore, the Agency denies Exception No. 8.

In Exception No. 9, HS-Ocala takes exception to the findings of fact in Paragraph 142 of the Recommended Order to the extent it finds that HealthSouth has used the conversion rate as a means of evaluating the success of its facilities, arguing that the description or characterization of its use is inaccurate and contrary to the evidence. The findings of fact in Paragraph 142 of the

Recommended Order are based on competent, substantial evidence (See Transcript, Volume 18,

Pages 2406-2410 and 2445-2447), and cannot be disturbed by the Agency. See § 120.57(1)(/),

Fla. Stat.; Heifetz. Therefore, the Agency must deny Exception No. 9.

In Exception No. 10, HS-Ocala takes exception to the findings of fact in Paragraph 158 of the Recommended Order to the extent that it states that 23 percent of patients were discharged to a CMR facility somewhere in the United States. HS-Ocala argued the percentage listed in the findings was in error. The Agency will treat Exception No. 10 as a motion to correct a scrivener's error, which it will grant and Paragraph 158 of the Recommended Order is hereby modified to reflect that the correct percentage discharged to a CMR facility in the United States

is 25.3 percent. See Transcript, Volume 8, Page 1111.

In Exception No. 11, HS-Ocala takes exception to the findings of fact in Paragraph 161 and 162 of the Recommended Order, arguing that the ALJ's findings that the conversion rate is not a market penetration rate based on the testimony of Edward Stall is not support by competent, substantial evidence. However, the finding at issue in Paragraph 161 of the Recommended Order is a direct quote from Edward Stall's testimony at hearing, which is

competent, substantial evidence. See. Stinson v. Winn 938 So. 2d 554 (Fla. 1st DCA 2006) (finding that an ALJ is entitled to rely on the testimony of one witness even if that testimony conflicts with the testimony of several other witnesses). HS-Ocala is essentially re-arguing the case in front of the Agency. However, the Agency cannot position itself in the role of a fact-

finder and re-weigh the evidence in order to make findings of fact that differ from those of the

ALJ. See§ 120.57(1)(/), Fla. Stat.; Heifetz. Therefore, the Agency denies Exception No. 11.

In Exception No. 12, HS-Ocala takes exception to the findings of fact in Paragraphs 176- 181 and 183 of the Recommended Order to the extent that they suggest that the conversion rate and primary service area approach used to project need were not based on sound health planning principles, but were unique to HealthSouth. Again, as stated previously, what a finding of fact may or may not suggest is not a valid basis upon which the Agency can overturn it. The findings of fact in Paragraphs 176-181 and 183 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 2, Pages 99 and 210-214; Transcript, Volume 8,

Page 1113; Transcript, Volume 17, Pages 2226-2228, 2239 and 2347-2348; and Transcript, Volume 18, Pages 2397-2399. Thus, the Agency is prohibited from rejecting or modifying them.

See§ 120.57(1)(/), Fla. Stat.; Heifetz. Therefore, the Agency must deny Exception No. 12.

In Exception No. 13, HS-Ocala takes exception to the findings of fact in the third and fourth sentences of Paragraph 183 of the Recommended Order, arguing that it was impossible to determine the basis for the calculation based on the record evidence and that there was no competent, substantial evidence to support this calculation. Contrary to HS-Ocala's argument,

the findings at issue are supported by competent, substantial evidence. See HS-Ocala Exhibit 53. Thus, the Agency cannot reject or modify them. See § 120.57(1)(/), Fla. Stat.; Heifetz. Therefore, the Agency denies Exception No. 13.

In Exception No. 14, HS-Ocala takes exception to the finding of fact in the last sentence of Paragraph 184 of the Recommended Order, arguing that the characterization that the PSA overstates the demand for CMR services is false and is not supported by competent, substantial evidence. Contrary to HS-Ocala's argument, the finding of fact in the last sentence of Paragraph

184 of the Recommended Order is based on competent, substantial evidence. See Transcript, Volume 9, Pages 1136-1138; and Transcript, Volume 17, Pages 2273-2275. Thus, the Agency is

not permitted to alter it. See§ 120.57(1)(/), Fla. Stat.; Heifetz. Therefore, the Agency must deny Exception No. 14.

In Exception No. 15, HS-Ocala takes exception to the findings of fact in Paragraphs 192 and 193 of the Recommended Order, arguing that they are not supported by competent, substantial evidence. However, HS-Ocala's argument is incorrect. The findings of fact in Paragraphs 192 and 193 of the Recommended Order are based on competent, substantial

evidence. See Transcript, Volume 8, Pages 1106-1109; and Transcript, Volume 17, Pages 2249-

2254 and 2274-2280. Thus, the Agency cannot reject or modify them. See § 120.57(1)(/), Fla.

Stat.; Heifetz. Therefore, the Agency denies Exception No. 15.

In Exception No. 16, HS-Ocala takes exception to the findings of fact in Paragraph 194 of the Recommended Order to the extent that it finds "the discharge status codes used by AHCA are not the same as universal billing codes and are not always in what are called UB04, or universal bill 04, codes as used by MedPar." HS-Ocala argues that this finding is not based on competent, substantial evidence. Contrary to HS-Ocala' s argument, the finding at issue is based

directly on the testimony of Carl Denney (See Transcript, Volume 18, Page 2459), which the ALJ found to be credible. HS-Ocala is asking the Agency to re-weigh that testimony, which the

Agency is not permitted to do. See Heifetz. Therefore, the Agency must deny Exception No. 16.

In Exception No. 17, HS-Ocala takes exception to the finding of fact in Paragraph 206 of the Recommended Order, arguing that it is not supported by competent, substantial evidence. HS-Ocala's argument is erroneous because the finding of fact in Paragraph 206 of the Recommended Order is based on competent, substantial evidence. See Transcript, Volume 6,

Pages 823-825. Thus, the Agency cannot reject or modify it. See § 120.57(1)(/), Fla. Stat.;

Heifetz. Therefore, the Agency denies Exception No. 17.

In Exception No. 18, HS-Ocala takes exception to the finding of fact in Paragraph 237 of the Recommended Order, wherein the ALJ stated "[i]t does not appear that patient safety or quality of care has been compromised because of the alleged travel times and distances to existing CMR hospitals," arguing that the finding was not supported by competent, substantial evidence. However, contrary to HS-Ocala's argument, the finding at issue is based on

competent, substantial evidence. See, , Transcript, Volume 5, Pages 563-564; and Transcript, Volume 9, Pages 1157-1160. Thus, the Agency is prohibited from overturning it. See §

120.57(1)(/), Fla. Stat.; Heifetz. Therefore, the Agency must deny Exception No. 18.

In Exception No. 19, HS-Ocala takes exception to the finding of fact in Paragraph 239 of the Recommended Order to the extent that it suggests that the number of persons whose travel times would be enhanced was not quantified by HealthSouth. Rule 28-106.217(1), Florida Administrative Code, requires that exceptions to a recommended order "shall identify the disputed portion of the recommended order by page number and paragraph, shall identify the legal basis for the exception, and shall include any appropriate and specific citations to the record." Exception No. 19 contains no record citations in support of HS-Ocala's argument. Thus, pursuant to§ 120.57(1)(k), Fla. Stat., the Agency need not, and will not, rule on it.

In Exception No. 20, HS-Ocala takes exception to the findings of fact in Paragraphs 242 and 366 of the Recommended Order, arguing that they are not supported by competent, substantial evidence. The findings in Paragraph 242 and 366 of the Recommended Order are

ultimate findings of fact1 made by the ALJ after weighing the evidence. HS-Ocala is asking the Agency to re-weigh the evidence to make findings more favorable to its position, but the Agency cannot do so.

If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding may reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.

Heifetz at 1281. Furthermore, the findings of fact in Paragraphs 242 and 366 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 5, Page 553; Transcript, Volume 6, Pages 773 and 780-781; Transcript, Volume 11, Page 1457;

Transcript, Volume 13, Pages 1654-1655, 1711-172 and 1719; Transcript, Volume 16, Pages 2175 and 2208; and Transcript, Volume 17, Pages 2355-2356. Thus, the Agency is prohibited

from rejecting or modifying them. See§ 120.57(1)(/), Fla. Stat.; Heifetz. Therefore, the Agency denies Exception No. 20.

1 The "ultimate facts" mentioned above

are those "necessary to determine issues in [a] case" or the "final facts" derived from the "evidentiary facts supporting them." Id. (citing Black's Law Dictionary 1522 (6th ed. 1990)). Ultimate facts are also regularly described as "mixed questions" of law and fact, see, e.g., Antonucci v. Unemp. App. Comm'n, 793 So.2d 1116, 1117 (Fla. 4th DCA 200I), and must generally be made by the fact finder in an administrative proceeding because they are "necessary for proper review of administrative orders." Tedder, 697 So.2d at 902; see also San Roman v. Unemp. App. Comm'n, 711 So.2d 93 (Fla. 4th DCA 1998) (finding that whether "good cause" exists for unemployment compensation claimant to voluntarily leave work frequently involves mixed question of law and fact, and is an ultimate fact best left to the fact-finder); Heifetz v. Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco , 475 So.2d 1277 (Fla. 1st DCA 1985) (finding that "negligent supervision and lack of diligence are essentially ultimate findings of fact clearly within the realm of th.e hearing officer's fact-finding discretion.") (citations omitted).

Costin v. Fla. A&M Univ. Bd. of Trustees, 972 So.2d 1084 (Fla. 5th DCA 2008).

In Exception No. 21, HS-Ocala takes exception to the finding of fact in Paragraph 249 of the Recommended Order to the extent that it suggests that it was not proven that the resident population of the primary service area, including the medically indigent, Medicare recipients and the elderly, have been or are likely to be denied access based on economic factors. However, as stated previously, what a finding of fact may or may not suggest is irrelevant. So long as it is based on competent, substantial evidence, the Agency cannot alter it. See § 120.57(1)(1), Fla.

Stat.; Heifetz. The finding of fact in Paragraph 249 of the Recommended Order is based on

competent, substantial evidence. See, M:., Transcript, Volume 13, pages 1671-1674; Transcript, Volume 18, Pages 2489 and 2492-2493. Therefore, the Agency must deny Exception No. 21.

In Exception No. 22, HS-Ocala takes exception to the finding of fact in Paragraph 274 of the Recommended Order, arguing that it is not supported by competent, substantial evidence. The finding of fact in Paragraph 274 of the Recommended Order is another ultimate finding of fact based on other findings of fact, which, in turn, are based on competent, substantial evidence. HS-Ocala is again asking the Agency to re-weigh the evidence in order to reach a finding that differs from that of the ALJ. However, the Agency cannot re-weigh the evidence or consider other evidence in order to reject or modify findings of fact. See Prysi; Strickland; Schrimsher;

and Heifetz supra. Therefore, the Agency denies Exception No. 22.

In Exception 23, HS-Ocala takes exception to the findings of fact in Paragraphs 281-303 of the Recommended Order to the extent that they find that the project is not financially feasible in the long term. Notably, HS-Ocala did not include any record citations in support of its exception. Indeed, a review of the record reveals that HS-Ocala's exception is meritless because the findings of fact in these paragraphs are all based on competent, substantial evidence. See Transcript, Volume 5, Pages 633 and 660-662; Transcript, Volume 7, Pages 909 and 989-991;

Transcript, Volume 14, Pages 1905 and 1932; Transcript, Volume 17, Pages 2240-2242 and

2287-2288; Transcript, Volume 18, Pages 2470, 2494-2509, 2513-2514 and 2517; and Transcript, Volume 19, Pages 2552-2553 and 2555. Thus, the Agency is not at liberty to reject

or modify them. See§ 120.57(1)(/), Fla. Stat.; Heifetz. Therefore, the Agency denies Exception No. 23.

In Exception No. 24, HS-Ocala takes exception to the findings of fact in Paragraph 337 of the Recommended Order which suggests that the Agency conceded that LRMC would lose one third of its admissions should HS-Ocala's CON application be approved. HS-Ocala's exception is not valid because what a finding of fact may or may not suggest is not grounds for the Agency to overturn it. Furthermore, HS-Ocala mischaracterizes the findings of fact. The ALJ stated that "[a]ccording to the Agency, a loss of approximately one-third of LRMC's admissions would be considered a substantial disruption of the patient flow pattern." This

finding is supported by competent, substantial evidence. See HS-Ocala Exhibit 70 at Page 123. Therefore, the Agency must deny Exception No. 24.

In Exception No. 25, HS-Ocala takes exception to the finding of fact in Paragraph 339 of the Recommended Order, arguing that the ALJ failed to make any specific findings of fact as to the number of patients Shands or LRMC would lose and that no specific finding of fact was made by the ALJ upon which to make such a determination. HS-Ocala's exception is simply wrong. The finding of fact in Paragraph 339 of the Recommended Order is an ultimate finding of fact that was clearly based on the findings of fact in Paragraphs 319-337 of the Recommended Order. This is yet another attempt by HS-Ocala to re-argue the case in front of the Agency. The Agency, however, cannot re-weigh the evidence in order to reach findings that are more favorable to HS-Ocala's position. See Heifetz. Additionally, as pointed out by Shands and

LRMC in their Joint Response to Exceptions, there is ample competent, substantial evidence that supports the ALJ's finding. Therefore, the Agency must deny Exception No. 25.

In Exception No. 26, HS-Ocala takes exception to the conclusions of law in Paragraphs 348 and 353 of the Recommended Order, arguing that its need methodology was based on sound health planning principles and demonstrated the need for new CMR hospital. Paragraph 348 of the Recommended Order is a direct quote from case law, and the Agency is in agreement that determining need must be based on sound health planning principles. Paragraph 353 of the Recommended Order is a conclusion of law based on the ALJ's weighing of the evidence presented. The Agency cannot re-weigh that evidence. Therefore, the Agency denies Exception No.26.

FINDINGS OF FACT

The Agency hereby adopts the findings of fact set forth in the Recommended Order,

except where noted supra.

CONCLUSIONS OF LAW

The Agency adopts the conclusions of law set forth in the Recommended Order.

ORDER

Based upon the foregoing, HS-Ocala's CON application No. 10009 is denied.

DONE and ORDERED this lS ay of fc!, rv !]" , 2010, in Tallahassee, Florida.

THOMAS W. ARNOLD, SECRETARY

AGENCY FOR HEALTH CARE ADMINISTRATION

NOTICE OF RIGHT TO JUDICIAL REVIEW

AP ARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail, or by the method indicated, to the persons named below on this

c7'.?S/

/-b'P-day of , 2010.

RICHARD J. SHOOP,Ag

Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, Florida 32308-5403

(850) 922-5873

COPIES FURNISHED TO:

Honorable Charles A. Stampelos Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

F. Philip Blank, Esquire Blank & Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301

Susan L. St. John, Esquire Amundsen & Smith

502 East Park Avenue Post Office Drawer 1759

Tallahassee, Florida 32302

Richard Joseph Saliba, Esquire Assistant General Counsel

Agency for Health Care Administration 2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

Mark A. Emanuele, Esquire Deborah S. Platz, Esquire Panza, Mauer & Maynard, P.A.

3600 North Federal Highway, Third Floor Fort Lauderdale, Florida 33308

Elizabeth Dudek

Health Quality Assurance

Jan Mills

Facilities Intake Unit

Docket for Case No: 08-003814CON

Orders for Case No: 08-003814CON