STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PSYCHIATRIC CENTERS, )

)

Petitioner, )

)

vs. ) Case No. 83-3743

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held before Sharyn

1. Smith, Hearing Officer of the Division of Administrative Hearings, on February 17, 1984, in Tallahassee, Florida. The following appearances were entered:

   
   

   For Petitioner: Kenneth G. Oertel, Esquire

   Oertel and Hoffman

   646 Lewis State Bank Building Tallahassee, Florida 32301

   
   

   For Respondent: Doug Mannheimer, Esquire

   Post Office Drawer 591 Tallahassee, Florida 32302

   
   

   The issue for determination at the final hearing was whether the Petitioner Florida Psychiatric Centers is entitled to have its applications for certificates of need for Palm Beach and Marion Counties included within the batching cycle beginning August 15, 1983.

   
   

   At the final hearing, Tom Porter, a health planner with the Department, testified for the Respondent. Laurence Levinson, Director of Planning for Florida Psychiatric Centers, testified for the Petitioner. Petitioner's Exhibits 1-17 were offered and admitted into evidence.

   
   

   Petitioner's Final Argument and Respondent's Memorandum in Support of Recommended Order Affirming Batching Cycle Placement of Petitioner's CON Application, containing findings of fact, have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

   FINDINGS OF FACT

   
   

   1. On May 10, 1983, the Petitioner Florida Psychiatric Centers submitted two letters of intent to the Respondent Department of Health and Rehabilitative Services to construct psychiatric hospitals in Palm Beach and Marion Counties.

      
      

   2. On June 10, 1983, the Petitioner timely submitted both applications for certificates of need to the Department.

      
      

   3. On February 11, 1983, the Department imposed an administrative moratorium with respect to the construction of new hospitals or the addition of new beds to existing hospitals. As a result, letters of intent for hospital projects involving new beds which were filed prior to February 11, 1983, which pursuant to Rule 10-5.08, Florida Administrative Code, would normally have an application deadline of March 15, were extended to a June 15 deadline with a review in September. Letters of intent which were received after February 14 and prior to May 16, which pursuant to the Department rules would have had a deadline of June 15, were instructed to file applications by August 15 to receive a November review.

      
      

   4. The moratorium, which was administratively imposed by the Department, had the effect of changing the application deadline the Petitioner's batching cycle from June 15, 1983, to August 15, 1983.

      
      

   5. In the absence of the Department's administrative moratorium, the Petitioner's applications would have been reviewed in the June 15 batch cycle pursuant to Rule 10-5.08, Florida Administrative Code.

      
      

   6. As a result of the administrative moratorium, the Department developed a letter of instructions which was forwarded to each of the 71 applicants who filed letters of intent between February 14 and May 16. The letter informed the applicants of the moratorium, the inapplicability of the June 15 deadline specified in the Department's rules, and requested applicants to file applications with the Department and appropriate local health council by August 15, 1983.

      
      

   7. The Department responded to Petitioner's letters of intent by forwarding letters of instruction dated May 18, 1983 and May 19, 1983.

      
      

   8. These two instruction letters were mailed to the Petitioner in the ordinary course of business by Ms. Diane Spooner, secretary to the certificate of need application review coordinator for the Department.

      
      

   9. Notwithstanding his receipt of the letters of instruction, the Petitioner forwarded his applications to the Department for review under cover letter dated June 10, 1983. These applications were received by the Department of June 15, 1983 and returned to the Petitioner.

      
      

   10. The Petitioner, however, did not receive the returned applications with cover letters or the application fees of $4,000 each from the Department.

       
       

   11. Subsequently, the Petitioner became aware that the applications were not included in the June or August batch and sent a letter to the Department requesting that the applications be included in the August batch.

       
       

   12. Neither the Department's rule nor Chapter 381, Florida Statutes, restrict an applicant from filing an early application. Accordingly, by filing

       its application on June 15, the Petitioner complied with the rules by filing on or before August 15.

       
       

   13. Had the Petitioner's applications been included in the August 15 batch cycle, its applications would have been comparatively reviewed with applications from Horsham Corporation in Palm Beach County and Citrus Community in Marion County.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. Section 120.57(1), Florida Statutes.

       
       

   15. On June 15, 1983, Petitioner timely filed an application for two certificates of need in Palm Beach and Marion Counties pursuant to Rule 10-5.08, Florida Administrative Code. The Petitioner had a right to rely on the rule as published which required that an application filed by June 15 be subject to final Department action by September. Since in this case the June 15, 1983 cycle did not occur, the Petitioner is entitled to review in the next existent batch.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a final order be entered by the Department placing the Petitioner within the batching cycle for which applications were due by August 15, 1983, and within ninety days, comparatively review the Petitioner's applications with those competitive applications filed and accepted by the Department for the August 15, 1983 batch.

DONE and ENTERED this 6th day of June, 1984, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 6th day of June, 1984.

COPIES FURNISHED:

Kenneth G. Oertel, Esquire Oertel and Hoffman

646 Lewis State Bank Building Tallahassee, Florida 32301

Doug Mannheimer, Esquire Post Office Drawer 591 Tallahassee, Florida 32302

Docket for Case No: 83-003743CON

Orders for Case No: 83-003743CON