Application of Bernard L. Samson ) CASE NO. 76-1114 and Walter P. Loebenberg, for )
This matter came on for hearing before the undersigned Hearing Officer July 6, 1976, in Tallahassee, Florida. This proceeding is a "fair hearing" held pursuant to Chapters 120 and 381, Florida Statutes, and 42 USCS, Section 1320a- 1(d). Pursuant to stipulation and agreement between the applicants and the designated planning agency, the Bureau of Community Medical Facilities, the fair hearing held on July 6, 1976, was limited to the hearing and determination of procedural and jurisdictional issues and defects complained of by applicants and at the conclusion of the hearing of such matters, this proceeding was continued pending submission by the parties to the Hearing Officer of Memoranda of Law and ruling by the Hearing Officer on the subject issues. Final Memoranda were received on September 15, 1976.
For Petitioner: John W. Hamilton, Esquire For Respondent: Douglas Whitney, Esquire For Intervenor: Jack B. McPherson, Esquire
Applicant made application for a certificate of need under the provisions of Sections 381.493-381.497, Florida Statutes, 1975, which application was submitted to the Bureau of Community Medical Facilities on November 24, 1975, and accepted as complete by the Bureau on December 2, 1975. The application sought a certificate of need for the construction of a 200-bed hospital in Bayonet Point Community, Pasco County, Florida, approximately 6 miles north of New Port Richey, Pasco County, Florida.
Mr. Art Forehand is the person within the Bureau of Community Medical Facilities responsible for the decision to issue or to deny such a certificate of need.
After its initial submission to the Bureau the application was reviewed and analyzed by the staff of the Health Systems Agency, and more specifically by the Pasco Sub-Council Health Facilities Committee. This subcommittee voted on January 5, 1976, to recommend denial of the application. On January 12, 1976, the Pasco County Sub-Council of the Florida West Coast Health Planning Council likewise voted to recommend denial of the application.
On January 20, 1976, following a public hearing before the Trustees of the Florida West Coast Health Planning Council, the Health Systems Agency, said Trustees voted five to one to recommend that the application be approved.
Subsequent to the above action, the Bureau of Community Medical Facilities, through Mr. Art Forehand, referred the application to the State Hospital Advisory Council for separate review. That Council held public hearings on February 19 and 20, 1276. At the conclusion of those hearings of the State Hospital Advisory Council, a motion for that Council to recommend denial of the application failed to carry by a four to four vote. A subsequent motion to recommend approval of the application likewise failed by the same four to four vote. A second attempt to recommend approval of the application also failed to carry by the same vote. At that point the State Hospital Advisory Council appointed an informal subcommittee consisting of two approving members of the Council and two disapproving members of the Council for the purpose of making an on-site inspection and for additional fact finding. This informal subcommittee was to be accompanied by Mr. Art Forehand by whom their guidance was sought.
At the conclusion of its hearing on February 20, 1976, the State Hospital Advisory Council, chaired by Mr. Scott Peek requested from the applicant an extension of time in which to consider the subject application. Mr. Ray Chambliss, who is in charge of the section within the Bureau of Community Medical facilities responsible for reviewing applications for certificates of need, and Mr. Forehand joined in the request for an extension, with Mr. Chambliss requesting that instead of a sixty day extension that the extension be until May 1, 1976. The applicant's representative stated that it
would grant the extension to the date requested. The above referenced extension was never committed to writing by the parties thereto. The applicant did not agree to any other extension except that set forth above, nor was any other extension ever discussed between applicant and the Bureau of Community Medical Facilities.
On May 11, 1976, the subcommittee chairman notified the chairman of the State Hospital Advisory Council of the subcommittee's recommendation to the Council that the application be denied. On May 21, 1976, the Council chairman wrote Mr. Forehand advising that the Council had likewise recommended denial of the subject application. By letter dated May 24, 1976, and received by applicant on May 26, 1976, Mr. Art Forehand notified applicant of his denial of the subject application.
By letter dated June 8, 1975, applicant made formal request for an appeal of the decision of the Bureau of Community Medical Facilities.
The Bureau of Community Medical Facilities by written stipulation and statements of counsel has admitted that the Bureau failed to grant or deny the subject application within the time period required by Subsection 381.494(6), Florida Statutes, and Subsection 101-1.03(5), Florida Administrative Code.
The letter of denial of the subject application from Mr. Art forehand to the applicant sets forth the reason for denial as an undemonstrated need for the additional facility and beds proposed for Pasco County by applicants.
CONCLUSIONS OF LAW
This hearing is held pursuant to the authority of Subsection 381.494(6)(e), Florida Statutes, and as such constitutes the fair hearing provided for by 42 USCS, Section 1320a-1(d)(1)(B)(ii)(II).
Subsection 381.494(6)(c), Florida Statutes, states that: "The bureau shall make its determination [to
grant or deny an application for certificate
of need] within not more than 90 days from the day the application is declared to
be complete, unless otherwise extended according to paragraph (5)(e)."
The paragraph referred to states that:
"If the health systems agency fails to make a decision within the 65-day period and if said period is not extended as hereinafter provided, then it shall be deemed that the application is approved by the agency. The 65-day period may be extended by written mutual agreement of the applicant, the bureau, and the health systems agency, but in no event shall the [extension] be for more than 65 days."
By implementation of the foregoing statutory provisions, the Florida Department of Health and Rehabilitative Services has adopted administrative rules. The pertinent administrative rule is found in Subsection 10I-1.03(a)(5) which states:
"Normally, the review period allowed from the time the DPA declares an application complete until a decision must be rendered is ninety
(90) days. . . . [T]he DPA may extend the review period for a specific time, but only with written consent of the provider. The failure of DPA to complete the review within these time limitations will be construed [sic] as approval of the proposed capital expenditure."
The designated planning agency, in this case the Bureau of Community Medical Facilities, is required by federal law to notify an applicant "within a reasonable period" after receiving an application that the proposed expenditure would not be in conformity with the standards, criteria, or plans developed by the designated planning agency, if such be the case. 42 USCS, Section 1320a- 1(d)(1)(B)(i). The federal regulations implementing the foregoing federal law are found in Section 100.106 of paragraph (i), 42 CFR 51.4 wherein it requires that the designated planning agency, here the Bureau of Community Medical Facilities, must provide an applicant with written notification of its decision ". . . in no event later than 90 days after the receipt of such notice [completed application] unless the person proposing the capital expenditure agrees to a longer period. . . ." It further states that "The failure of a designated planning agency to provide any such notification within the time limitations set forth above shall have the effect of a determination . . ." that
such capital expenditure is in conformity with the standards, criteria, and plans prescribed.
Both the facts proven at hearing and set forth above and the stipulation and admission of the designated planning agency, Bureau of Community Medical Facilities, show that first, as required by their own administrative rule, 10I-1.03(a)(5), F.A.C., the Bureau did not receive the written consent of the applicant to an extension of the 90 days within which the Bureau must decide the application. The completed application was received on December 2, 1975. The consideration period of 90 days thus expired on March 1, 1976. The Bureau did not make a decision on the application until early May, 1976 and this decision was noticed the applicant by letter dated May 24, 1976, received by applicant May 26, 1976. Thus, it is apparent that under state law and administrative rules, the Bureau greatly exceeded the time period in which it was required to make a decision and did not receive the written consent of the applicant to an extension period. However, even if one considers the extension granted by the applicant to be valid under the strict requirements of the administrative rule, this extension was to May 1, 1976, only, and the Bureau failed to make its decision within the extended period of time.
As noted in paragraph 13 above, the federal rules and regulations require the designated planning agency to provide written notification of its decision no later than 90 days after the receipt of a completed application unless the applicant has agreed to a longer period. In the instant case, the applicant did in fact consent to a longer period which period expired May 1, 1976. Again, the Bureau failed to make a decision or provide written notification of such a decision within the time limitations placed upon it by the federal rules and regulations and the extension of time granted by the applicant. Such a failure, according to the rules and regulations as set forth in paragraph 13 above with regard to the federal aspect of this proceeding, has the effect of a determination that the proposed capital expenditure is in conformity with the pertinent standards, criteria and plans.
THEREFORE, the Hearing Officer herein FINDS that the Bureau of Community Medical Facilities has failed to complete its review of the subject application and provide written notification of its decision within the time required and that therefore the application must be deemed to be in conformity with the standards, criteria and plans pertinent thereto and applicant is entitled to a certificate of need.
DONE and ORDERED this 12th day of October, 1976, in Tallahassee, Florida.
CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
