STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

COLONY SNF OPERATIONS, LLC, 2016 FEB -5 P 12: 22

Petitioner,

V.

DOAH NO. 15-1927CON AHCA NO. 2015002606

CON NO. 10261

RENDITION NO.: AHCA- l(b • OO<J 'i -S-OLC

MILLENNIUM 11, LLC, AND

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondents.

                                                                          I

MILLENNIUM II, LLC,

Petitioner,

V.

DOAHNO. 15-1932CON AHCA NO. 2015003342

CON NO. 10262

COLONY SNF OPERATIONS, LLC,

Respondent.

                                                                          I

FINAL ORDER

THIS CAUSE is before the State of Florida, Agency for Health Care Administration ("the Agency") concerning the preliminary denial of Certificate of Need ("CON") 10261 filed by Colony SNF Operations, LLC ("Colony"), to establish a new 60-bed community nursing home and the preliminary approval of CON 10262 filed by Millennium II, LLC ("Millennium"), to establish a new 50-bed community nursing home, with respect to the fixed need pool for Sub­ District 3-6.

1. The Agency comparatively reviewed CON applications for other beds and programs batching cycle with an application due date of November 19, 2014, for the fixed need pool for Sub-District 3-6. For the case at hand, the reviews included in relevant part:

   
   

   Filed February 5, 2016 3:13 PM Division of Administrative Hearings

   
   

   10261	Colony SNF Operations, LLC	60 Beds	Denied
   10262	Millennium II, LLC	50 Beds	Approved

   
   

2. On February 23, 2015, the Agency published notice in the Florida Administrative Register of its decisions regarding the preliminary denial of CON 10261 and the preliminary approval of CON 10262.

3. On March 16, 2015, Colony SNF, filed a Petition for Formal Hearing challenging the denial of its CON 10261 as well as the approval of CON 10262 to Millennium.

4. On March 26, 2015, Millennium filed a Petition Challenging Co-Batched Applicant supporting the Agency's decision denying Colony's application.

5. The Agency referred the Petitions to the Division of Administrative Hearings and an Administrative Law Judge ("ALJ") was assigned.

6. The parties subsequently entered into the attached settlement agreement agreeing to the approval of CON 10262 for 50 beds and the approval of CON 10261 for only 59 beds.

It is therefore ORDERED:

1. The parties shall comply with the terms of the settlement agreement which are incorporated by reference into this Final Order.

2. Millennium's CON 10262 is approved to establish a 50-bed community nursing home in Sub district 3-6 to be located adjacent to The Residence at Timber Pines located at 3140

   Forest Road, Spring Hill, Florida 34606.

   
   

   ORDERED in Tallahassee, Florida, on this _2 day of                                       

   2016.

3. Colony's CON 10261 is approved for only 59 beds.

aur ,

Agency Fo are Administration

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 the original Notice of Appeal with the Agency Clerk of AHCA, and a copy along with the filing fee 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 of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of the 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 the method designated to the persons named below on this                 of

-

---''-----=<.- -7_-/ , 2016.

Richard J. Shoop, Agency

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3

Tallahassee, Florida 32308

Telephone: (850) 412-3630

James H. Peterson, III Administrative Law Judge

Division of Administrative Hearings (Electronic Filing)

Stephen C. Emmanuel Ausley & McMullen

123 South Calhoun Street Post Office Box 391 Tallahassee, FL 32302 semmanuel@ausley.com jmcvaney@ausley.com (Electronic Mail)

Seann M. Frazier, Esquire

Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750

Tallahassee, FL 32301 sfrazier@phrd.com twd@phrd.com (Electronic Mail)

Jonathan L. Rue, Esquire

Parker, Hudson, Rainer and Dobbs, LLP Suite 1500, 285 Peachtree Center Avenue

Atlanta, Georgia 30303 jrue@phrd.com bmurphy@phrd.com

Richard Joseph Saliba, Assistant General Counsel Kevin Michael Marker, Assistant General Counsel Office of the General Counsel

Agency for Health Care Administration (Electronic Mail)

Janice K. Mills, Government Analyst II Facilities Intake Unit

Agency for Health Care Administration (Electronic Mail)

Marisol M. Fitch, Unit Manager Certificate of Need Unit

Agency for Health Care Administration (Electronic Mail)

Bernard Hudson, Unit Manager Long Term Care Unit

Agency for Health Care Administration (Electronic Mail)

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLONY SNF OPERATIONS, LLC,

Petitioner,

vs.

MILLENNIUM II, LLC AND AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondents.

                                                                    I

MILLENNIUM II, LLC,

Petitioner,

vs.

COLONY SNF OPERATIONS, LLC,

DOAH Case No. 15-1927 AHCA Case No. 2015002606

CON Application No. 10261

DOAH Case No. 15-1932 AHCA Case No. 2015003342

CON Application No. I 0262

Respondent.

                                                                         I

SETTLEMENT AGREEMENT

This Settlement Agreement ("Settlement Agreement") by and between the State of Florida, Agency for Health Care Administration ("AHCA"), Colony SNF Operations, LLC ("Colony"), and Millennium II, LLC ("Millennium").

WHEREAS, in Volume 40, No. 193 of the Florida Administrative Register dated October 3, 2014, a fixed need pool of 66 beds was published for Subdistrict 3-6 for the July 2017 planning horizon; and

WHEREAS, in Volume 20, No. 193 of the Florida Administrative Registry dated October 3, 20 I 4, a fixed need pool of 65 beds was published for Subdistrict 3-5 for the July 2017 planning horizon; and

WHEREAS, Millennium filed CON application No. I 0262 for a 50-bed skilled nursing home to be located in Subdistrict 3-6 to be located adjacent to The Residence at Timber Pines located at 3140 Forest Road, Spring Hill, Florida 34606; and

WHEREAS, Colony filed CON application No. 10261 for a 60-bed skilled nursing facility to also be located in Subdistrict 3-6, near the entrance of Wesleyan Village, a deed­ restricted senior community located in Brooksville, Florida 3460I; and

WHEREAS, Colony's application proposed that some of the bed need in Subdistrict 3-5 be aggregated with the bed need in Subdistrict 3-6 pursuant to section 408.034(6), Florida Statutes; and

WHEREAS, AHCA published notice in Volume 41, No. 26 of the Florida Administrative Register of its decisions to preliminarily approve Millennium's application and to preliminarily deny Colony's application; and

WHEREAS, Colony timely filed a Petition for Formal Administrative Hearing challenging the Agency's preliminary denial of Colony's application and the preliminary approval of Millennium's application; and

WHEREAS, Millennium filed a Cross Petition in support of AHCA's preliminary denial

of Colony's application; and

WHEREAS, AHCA received only one CON application for Subdistrict 3-5, to wit an application by Surrey Place of Lecanto, LLC for 22 beds which has received final approval, leaving 43 beds available for award; and

WHEREAS, AHCA has further reviewed Colony's application and has determined that it satisfies the applicable statutory and rule criteria and should be approved; and

WHEREAS, the parties to this Settlement Agreement seek to resolve the pending cases without the need for further litigation, and have determined that it is in the best interests of sound health planning and health care delivery to resolve their differences in a manner consistent with the goals and objectives of the Florida CON law.

WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the uncertainty of litigation as well as the expenditure of substantial sums of funds on behalf of all parties in order to fully litigate the dispute; and

WHEREAS, the parties stipulate to the adequacy of considerations exchanged; and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties

will be served by a settlement of this proceeding; and

NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, each party individually stipulates and agrees as follows:

1. The above recitals are true and correct and are incorporated into this Agreement.

   
   

2. The "whereas" clauses set forth above are binding findings of the parties.

   
   

3. Colony and Millennium each agree to withdraw their opposition to the other party's CON application.

4. AHCA agrees to approve Millenium's CON application No. 10262 for 50 beds.

   
   

5. AHCA agrees to approve Colony's CON application No. 10261 for 59 beds.

   
   

6. Upon full execution of this Agreement, the Agency will enter a final order approving Millennium's CON application no. I 0262 to establish a 50 bed community nursing home and Colony's CON application no. 10261 to establish a 59 bed community nursing home.

7. Upon full execution of this Settlement Agreement and entry of a final order

   
   

   wholly consistent with this agreement, each party: (a) agrees to waive any and all appeals and

   
   

   proceedings; and (b) agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled including, but not limited to, an informal proceedings under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57( I), Florida Statutes, appeals under Section 120.68, Florida Statutes, and declaratory and all writs of relief in any court or quasi-court (e.g. Division of Administrative Hearings) of competent jurisdiction.

8. Each party for itself and for its related or resulting organizations, its successors or transferees, attomeysi and executors or administrators, does hereby discharge the other parties and their respective employees, agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency's actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum by or on behalf of such party or any of its related facilities.

9. Within ten ( I 0) days of execution of this Settlement Agreement by all parties,

Colony will pay Millennium $15,000.00 for its attorney's fees incurred in this proceeding.

I 0. Except as provided in paragraph 9 above, each party shall bear its own costs and attorneys' fees.

1. If anyone breaches this Settlement Agreement, the prevailing party in any action

   
   

   brought to enforce its terms will be entitled to recover reasonable attorney's fees and costs from the non-prevailing party. The parties agree that any action to enforce the terms of this Settlement Agreement will be brought in the Circuit Court for the Second Judicial Circuit in Leon County, Florida.

   
   

2. This Settlement Agreement shall become effective on the date upon which it is fully executed by all parties hereto.

3. This Settlement Agreement is binding upon all parties and those identified in the above paragraph of this Agreement.

4. The undersigned have read and understand this Settlement Agreement and have the authority to bind their respective principals to it.

5. This Settlement Agreement contains and incorporates the entire understandings and agreements of the parties.

6. This Settlement Agreement supersedes any prior oral or written agreements between the parties.

7. This Settlement Agreement may not be amended except m writing. Any attempted assignment of this Agreement shall be void.

8. All parties agree that a facsimile signature sullices for an original signature

I 9. The parties each hereby represent and warrant that their undersigned representative is authorized to execute this Settlement Agreement on behalf of the party, and to bind the party to the terms and conditions herein.

MILLENNIUM II, LLC

Randall Benson, Treasurer Millennium II, LLC

Scann M. Frazier Florida Bar No. 971200

Parker Hudson Rainer & Dobbs, LLP

2 I 5 S. Monroe St., Suite 750 Tallahassee, FL 3230 I

DATED:                                

1. This Settlement Agreement shall become effective on the date upon which it is fully executed by all parties hereto.

2. This Settlement Agreement is binding upon all parties and those identified in the above paragraph of this Agreement.

3. The undersigned have read and understand this Settlement Agreement and have the authority to bind their respective principals to it.

4. This Settlement Agreement contains and incorporates the entire understandings and agreements of the parties.

5. This Settlement Agreement supersedes any pnor oral or written agreements between the parties.

6. This Settlement Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void.

7. All parties agree that a facsimile signature suffices for an original signature

   
   

8. The parties each hereby represent and warrant that their undersigned representative is authorized to execute this Settlement Agreement on behalf of the party, and to bind the party to the terms and conditions herein.

MILLENNIUM II, LLC

Randall Benson, Treasurer Millennium II, LLC

Se M. Frazier Florida Bar No. 9712

Parker Hudson Rainer & Dobbs, LLP

215 S. Monroe St., Suite 750

Tallahassee, FL 32301

G

TLC Man

Stephen . anu Florida Bar No. 0 9646 Ausley McMullen

Post Office Box 391

Tallahassee, FL 32301

DATED: ( - 2..C. -1  

AGENCY FOR HEALTH CARE ADMINISTRATION

2727 Mahan Drive, MS #3, Tallahassee, FL 32308

Eliz

Divisi th Quality Assurance

W{tt      

DATED: 44  

Richard JosphSaliba, Esquire Assistant General Counsel Florida Bar No. 240389

DATED: l \ 1G

h \scc\tlc\colnny s11t\sc11lc111c11t agrccmcnt 12 07 2015 Jocx

        ,

Stuart F. Williams, Esquire General Counsel

/411

Florida Bar No. 67073 J

DATED: ;)_

7

Docket for Case No: 15-001927CON

Orders for Case No: 15-001927CON