STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MERIDIAN, INC., MERIDIAN NURSING ) CENTERS, INC., and PINELLAS ) MERIDIAN LIMITED PARTNERSHIP, )
)
Petitioner, )
)
v. ) CASE NO. 86-0060
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
) HEALTH CARE AND RETIREMENT )
CORPORATION, )
)
Petitioner, )
)
v. ) CASE NO. 86-0246
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings on May 18 and 19, 1987, in Tallahassee, Florida. The issue for determination in this proceeding is whether there exists a need for additional community nursing home beds in Pinellas County, Florida, in the July, 1988 planning horizon.
APPEARANCES
For Petitioner Robert D. Newell, Jr., Esquire Meridian: 102 South Monroe Street
Tallahassee, Florida 32301
For Petitioner Alfred W. Clark, Esquire Health Care and 1725 Mahan Drive, Suite 300 Retirement Post Office Box 623 Corporation: Tallahassee, Florida 32302
For Respondent Richard A. Patterson, Esquire HRS: 1323 Winewood Boulevard
Building One, Room 407 Tallahassee, Florida 32399
INTRODUCTION
This proceeding results from the proposed denial by the Department of Health and Rehabilitative Services (HRS) of the certificate of need applications filed by both petitioners in the July, 1985 nursing home batching cycle, each for a 120-bed, new free-standing nursing home. At the onset of the final hearing, the parties stipulated and agreed to a bifurcated proceeding whereby the issue of numeric need for nursing home beds in Pinellas County would be resolved prior to any determination as to the manner of distribution of any beds found to be needed. The parties agreed that if any comparative review is necessary, it will not occur until after final agency action on the need issue. In addition, the parties have stipulated and agreed to the manner of applying the rule methodology for determining bed need, and the numbers to be utilized in the various components of the formula, with two exceptions. The two exceptions relate to the occupancy rate and population figures.
In support of its position that there is a need for additional nursing home beds in Pinellas County for the July, 1988 planning horizon, Meridian presented the testimony of Sara Voyles, a governmental analyst with the Executive Office of the Governor; William J. Serow, accepted as an expert in the field of demography; and Sharon Gordon-Girven, accepted as an expert in the area of health planning. Meridian's Exhibits 1 through 10 were received into evidence. Health Care and Retirement (HCR) adopted and relies upon the evidence presented by Meridian.
The respondent HRS presented the testimony of Herbert Edward Straughn, accepted as an expert in the fields of health planning and certificate of need review. HRS' Exhibits 1 through 3 were received into evidence.
Subsequent to the final hearing, each of the parties submitted proposed recommended orders. To the extent that the parties proposed findings of fact are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following facts relevant to the issues in dispute are found:
Meridian and HCR each filed applications for a certificate of need in the July, 1985 batching cycle to establish a 120-bed nursing home in Pinellas County, Florida.
The numeric need for nursing home beds in an area is computed in accordance with a formula contained in Rule 10- 5.011(1)(k), Florida Administrative Code. The formula utilizes a number of components, including population data, licensed beds, approved beds and occupancy rates of existing nursing homes, to estimate or project the number of nursing home beds needed three years into the future from the date of the application.
The date upon which licensed beds are to be counted is specifically stated in the Rule. The date upon which approved beds are to be counted is not stated in the Rule. The times for which population data are to be considered is set forth in the Rule's methodology, but the release date of the "official estimates and projections adopted by the Office of the Governor" is not specified. The time period for which occupancy rates of existing nursing homes
are to be considered is specifically set forth in the Rule; however, the input to be utilized when calculating the "average occupancy rate" within that time period is not established in the methodology.
The parties have stipulated and agreed that the appropriate number of licensed beds to be utilized in the Rule's formula is 6,704 in Pinellas County and that the appropriate number of approved beds in Pinellas County is 558. Given this agreement and stipulation, further evidence on these numbers was not adduced at the final hearing.
If the most recent population estimates and projections adopted by the Office of the Governor which were available as of the date of these applications are utilized, and if occupancy rates are measured by utilizing a "first day of the month census" for the appropriate time period, the application of the Rule's methodology results in a surplus of 90 beds in Pinellas County for the July, 1988 planning horizon. If the most recent population figures available as of the final hearing date are utilized, and if occupancy rates are measured by utilizing an average of all patient days for the appropriate time period, the net need for nursing home beds in Pinellas County in July of 1988 is 278.
HRS calculated an 88.34 percent occupancy rate of existing nursing homes in Pinellas County for the months October of 1984 through March of 1985. This figure was derived by averaging a single day per month census of existing nursing homes, as reported by the local health council. The local health council also collects occupancy data on an average daily basis, and this information is available to HRS. If averaged patient day data is utilized, as opposed to a one-day per month census, the occupancy rate to be utilized in the Rule's methodology is 90.13 percent.
Occupancy data collected on an average daily basis is more accurate and reliable than occupancy data collected by a one day per month census. HRS's sole witness gave no reason for utilizing a single day census as opposed to patient-day averaging, and conceded the greater accuracy and reliability of the latter data.
As noted above, the Rule methodology requires that the three year projections of population be based upon the Governor. Thus, while the source of population data is specified, the Rule is silent as to the release date of the data to be utilized.
The Executive Office of the Governor (EOG) does the State's economic forecasting. To assist it in this function, the EOG contracts with the University of Florida's Bureau of Economic and Business Research (BEBR) for the supply of population data. On or about April 1st of each' year, the BEBR provides to the EOG population data consisting of estimates and projections for five-year interval points. The EOG then develops projections and estimates for the interim years, and this data, adopted by the various estimating conferences on a semi-annual basis, is utilized in preparing budget requests, developing appropriation bills, and overall State planning.
The only years for which actual population counts can be ascertained are past census years, i.e., 1970, 1980. Data for other years are in the form of estimates or projections. An "estimate" of population is a statement of what the population is at the current point in time (generally the immediate past). A "projection" of population is a statement of what the population will be at a specified time in the future under stated assumptions concerning demographic behavior. Estimates are based upon information from the most recent population
census and on other demographic data, such as vital statistics (births and deaths) and administrative-type data, such as school enrollments, utility hookups, employment, and tax returns filed, which are indicative of changes in the size and composition of the population. Post-censal estimates are released by the BEBR once a year and these do not change. Only the projections change and, as one approaches the time for which a projection is made, the projections become more accurate. This increasing accuracy results from the fact that the newer estimates encompass the more recently available demographic and administrative data.
In developing its population projections for any given period, the EOG uses a straight line interpretation between prior estimates and current projections. When the end points change, so do all the interim points on the straight line. The most recently released data thereby becomes the "official" population data for the State's planning and budgeting functions. The data contained in prior releases is replaced or supplanted by the most recent publication. The only projections and estimates considered by the EOG to be official, at any given point in time, are the most recently released data in relation to that point in time.
At the time these petitioners submitted their certificate of need applications in July of 1985, the only population data available to the EOG when releasing the "official estimates and projections" were the following: the 1980 census, the five-year projection for the year 1985 from the BEBR and the estimates from the BEBR for the years 1981, 1982, 1983 and 1984. In July of 1985, the EOG had no official estimates of population in Pinellas County for that time period. The BEBR estimates released in April of 1985 included only up to 1984.
At the time of the final administrative hearing in these proceedings, the EOG's most recently released population estimates and projection occurred in January of 1987. At that time, the EOG had population estimates to and including April of 1986.
The differences between the January of 1987 released population projections and those released in 1985 are significant in terms of the operation of the methodology for determining the need for nursing home beds. For example, the projected population (as released in July of 1985) for persons aged 65 and older in Pinellas County in July of 1988 is 233,049. That figure increased to 246,497 in the January of 1987 release - - a 5.8 percent difference. Similarly, there was an increase of 7.1 percent in the projected July, 1988 population of persons aged 75 or over between the release available in July of 1985 and the January, 1987 release of population projections. The July, 1985 population projections for these same age groups also increased, respectively, by 2.1 percent and 4.1 percent between the 1985 and 1987 releases of population data from the EOG. Many areas of the State showed decreases in the 65 and older populations between the 1985 and 1987 release dates.
Health planners and demographers alike utilize the most recent data available at the time because it contains the most accurate portrayal of population composition and population trends. This is particularly true as the number of years increases since the last census year.
HRS's one witness in this proceeding testified that it is HRS's policy to utilize the population projections available at the time of application (here, July of 1985) when calculating the need for nursing home beds. This witness, though tendered as an expert in health planning and the certificate of
need review process, was unable to articulate or explicate the rationale for this policy. When reviewing applications, he simply accepts the instructions of his supervisors and proceeds accordingly.
In support of its "policy" or rule interpretation with regard to population data, HRS offered two exhibits. Exhibit No. 2 is a "Memorandum" dated April 28, 1987, from Liz Dudek and Reid Jaffe to "consultants" regarding the "use of population projection sets for initial reviews and litigation." That memorandum states that the set to be used is that which would have been available to applicants at the time of application, meaning the set released by the Office of the Governor prior to the application deadline. No rationale for this instruction was provided in the memorandum, and neither Liz Dudek nor Reid Jaffe testified in this proceeding. HRS's Exhibit 3 is a two page document.
The first page is dated November 3, 1986, and it is entitled "PDCF Policy Memorandum #26." It reads, in total, as follows:
"Please review the attached memorandum from General Counsel in reference to the above noted subject. The concepts enumerated in the memorandum are to be applied in all nursing home hearings. Since the nursing home rule does not prescribe a specific date upon which to count approved beds, it will be the policy of this office to count the number of approved beds effective on the date that the State Agency Action Report is signed by the applications unit supervisor."
"If you have any questions concerning this memo please let me know."
This Memorandum is signed by the Administrator, Community Medical Facilities, Office of Health Planning and Development. As can be seen, the rationale for this directive is not contained in the Memorandum and Mr. Maryanski was not a witness in this proceeding. The correspondence attached to the above Memorandum is dated October 27, 1986, is directed to "All Attorneys" from the former General Counsel of HRS, and states as follows:
"In all nursing home CON hearings, calculation of the bed need will strictly adhere to the methodology contained in Fla. Admin. Code Rule 10-5.11(21). The relevant data is that which was used when the application was initially reviewed. "Current" data is data current as- of the date of the application."
"All attorneys in this office are asked to abide by and express this position at hearing to maintain consistency within the program."
Again, the rationale was neither expressed in the correspondence and its author did not testify at the hearing.
CONCLUSIONS OF LAW
HRS has a promulgated rule which provides a numeric methodology for calculating the need for additional nursing home beds within a particular service area. Rule 10-5.011(1)(k), Florida Administrative Code. This rule projects need three years from the date of an application, based upon consideration of various data relating to population, licensed and approved beds and occupancy of existing nursing home beds. The only disagreement between the parties in this proceeding is the appropriate data to be utilized in the components of the formula relating to population and occupancy rates.
The 90.13 percent occupancy rate utilized by the petitioners is based upon occupancy data collected on an average daily basis, as published by the local health council. HRS utilized an average of six one-day census reports to arrive at an occupancy rate of 88.34 percent. The evidence adduced at hearing clearly establishes that patient day occupancy is more accurate and reliable than first-day-of-the-month occupancy. The Rule requires only the use of "the average occupancy rate" during a given six-month period of time. While both the HRS and the petitioners' methods of calculating occupancy rates utilize an "averaging" approach, the petitioners' approach produces a more reliable and accurate result and utilizes information available to applicants and HRS.
Having provided no explanation or rationale for the use of single day census data, and acceding to the greater reliability and accuracy of the use of average patient day data, the proper occupancy rate to use in this proceeding is 90.13 percent.
The Rule requires that population projections "be based upon the official estimates and projections adopted by the Office of the Governor." Rule 1O-5.011(1)(k)2.h, Florida Administrative Code. The Rule is silent as to the appropriate release date of such estimates and projections. HRS has taken the position in this proceeding that the appropriate EOG population figures to utilize are those which were released immediately prior to the submission of the certificate of need application. The petitioners contend that the appropriate source of population data is the most recent publication as of the date of the final hearing.
An agency's interpretation of its own rules is entitled to great weight. However, that interpretation must be founded on logic and reason supported by a record foundation. Here, none can be found. HRS offered no testimony, no documentary basis or opinion and no other appropriate or competent evidence which might elucidate or explicate its reasons for declining to allow applicants to use the most reliable and accurate population estimates and projections available at the time of hearing. When an agency intends to rely upon non-rule policy, without resort to formal rulemaking procedures, it must be prepared to defend such policies by fully and skillfully expounding upon them by conventional methods of proof. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA, 1977); City of Delray Beach v. Dept. of Transportation,
456 So.2d 944 (Fla. 1st DCA, 1984). Florida Medical Center v. HRS, 463 So.2d
380 (Fla. 1st DCA, 1985). The requisite record foundation for HRS's policy choice in this regard is woefully lacking. Even if it can be concluded that HRS established what the agency policy is with regard to population data, HRS failed to explain or explicate its rationale for such a policy choice.
On the other hand, the petitioners offered compelling reasons justifying the use of the most recent releases of population data when determining the need for nursing home beds in a community. First, they contain
the most accurate and therefore reliable evidence available of demographic events and trends. The very purpose of certificate of need requirements and the review process is to ensure that there is a real future need for health care facilities and to ensure that the health care needs of a community are found and defined through a process of continuous reevaluation. See Section 381.493(2), Florida Statutes. The use of data a year and a half to two years old at the time a decision must be made would not serve these legislative purposes. Such an approach could easily result in overbedding, as well as underbedding. This, too, would violate the legislative intent to eliminate the unnecessary duplication of health care services. As one expert witness stated at the hearing, it would be "foolish" for an agency planning the delivery of services to the public not to take into account the most recent data available for such planning purposes. The purpose of this de novo proceeding is to gather the most accurate and reliable evidence available and make findings of fact to determine the action which should be taken by HRS. While a portion of the Rule requires a consideration of "current" population, it must be remembered that, at least in non-census years, all population counts are either estimates or projections.
The most appropriate manner of counting the "current" population (admittedly, the population existent in July of 1985) is to use the latest releases of data available. It has clearly been demonstrated that the most recent releases of population estimates and projections are the most reliable and accurate. Here, the most recently published data at the time of final hearing was that published in January, 1987.
A second reason for utilizing the most recent available population data is the language of the Rule itself. The Rule requires that
"the three year projections of population shall be based upon the official estimates and projections adopted by the Office of the Governor."
The evidence demonstrates that the only "official" release of such data is the most recent release. All prior estimates and projections are supplanted by the most recent ones. Again, common sense would dictate that there be one set of "official" population data for two reasons. The latter data, based on secondary and refined information, is more accurate. An equally compelling reason is to ensure that all units of government utilize a common data base for planning, funding and spending purposes. Indeed, all state agencies are required to utilize the official information generated by the consensus estimating conference when performing their duties under the state planning and budgeting system. Section 216.135, Florida Statutes. Thus, when HRS renders its determinations regarding the need for health care services, it must consider the most recent "official" data available.
While no evidence was adduced at the hearing to support such a position, counsel for HRS argues that the case of Gulf Court Nursing Center v. HRS, 483 So 2d 700 (Fla. 1st DCA, 1986) mandates the use of a cutoff date for population data considerations. It is urged that such a policy would fix need pools and discourage health care providers from filing applications in every batching cycle in the hope that new population estimates will eventually support a finding of need in their planning horizon. The undersigned fails to understand the logic behind this position. Indeed, it would seem that "fixed" need pools based upon a specified set of population figures would more readily encourage entrance into each subsequent batching cycle in hopes that the subsequent cycles would be based upon more recent sets of population data. In addition, if more recent and accurate population estimates and projections do
indicate a need for services (whether for the planning horizon for which an application is submitted or another planning horizon for which a new application would be required), one would hope that there would be applicants willing to prove up and fulfill that need. To discourage such applications based upon unreal and fictional considerations would be contrary to the very purpose of the Certificate of Need law and review process.
The Gulf Court case, supra, confirms the applicability of de novo concepts in administrative proceedings and acknowledges the right to present evidence of changed conditions occurring after the agency's preliminary review, so long as such evidence is relevant to the application filed. Here, petitioners are not seeking to change their application, as was criticized in Gulf Court. They do not seek to take advantage of planning data relevant to different planning horizons. They simply seek to utilize the most accurate information available relevant to their base year of July, 1985, and the original planning horizon of July, 1988.
Finally, HRS argues that the "rule is obviously written to guide HRS staff in the review of applications" and, therefore, the facts available at the time of initial review by HRS should be determinative for all purposes. Hopefully, the Rule at issue was written to enable HRS to render meaningful and accurate determinations for the provision of health care facilities and services, and not merely to simplify the duties of HRS employees. Health care and need determinations must be based upon a rational application of accurate information. If that occurs without challenge after the initial or preliminary review process, the determination most likely will be based upon recent and accurate information. However, if an applicant or other substantially affected person timely asserts his right to an administrative proceeding, the ultimate determination must be based upon the best evidence available at the time for presenting such evidence.
The Section 120.57(1), Florida Statutes, hearing process is a process by which each party has the opportunity to prove what the real facts are and not to deal in fiction. What HRS is suggesting is an appeal process whereby the facts become "frozen" to those existent at the time of application or initial agency review. The hearing process is not an appeal process. It is the initial step in the decision-making process which results in a Final Order. It is only rational that an agency head render decisions based upon the best available information, and not based upon facts which are fictional either because they never existed or because they no longer exist.
In summary, the evidence adduced in this proceeding supports the conclusion that the population data to be utilized in calculating the nursing home bed need formula is the data published by the EOG in January of 1987, and that the proper manner of determining the average occupancy rate in this case is to utilize the patient-day occupancy as opposed to the first-day- of-the-month occupancy levels. Calculation of the population and occupancy rate components of the need methodology in this manner, along with the remaining components as stipulated by the parties, results in a net need of 278 beds for the applicant's planning -horizon of July, 1988.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered determining that there is a net need for 278 additional nursing home beds in Pinellas County for the July, 1988, planning horizon. Inasmuch as there are no further issues remaining, it is further RECOMMENDED that the applications for certificate of need filed by Meridian and by HCR for 120-bed nursing homes be GRANTED.
Respectfully submitted and entered this 16th day of November, 1987, in Tallahassee, Florida.
DIANE D. TREMOR
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 16th day of November, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0060 and 86-0246
The proposed findings of fact submitted by each of the parties have been fully considered and are included and/or incorporated herein, except as noted below:
For Petitioner Meridian: All are accepted.
For Petitioner HCR:
24. Rejected; irrelevant and immaterial to the two issues in dispute in this proceeding.
For Respondent HRS:
Accepted, but not included as irrelevant to the issues in dispute.
Rejected, as not supported by competent, substantial evidence and contrary to the presentation of competent, substantial evidence.
Last sentence rejected as contrary to the evidence.
First sentence rejected as irrelevant to the issues in dispute in this proceeding.
Second sentence rejected, as not supported by competent, substantial evidence and contrary to the evidence.
10 & 11. Accepted, but not relevant to the issues in dispute.
COPIES FURNISHED:
Robert D. Newell, Jr., Esquire
102 South Monroe Street Tallahassee, Florida 32301
Alfred W. Clark, Esquire 1725 Mahan Drive
Suite 300
Post Office Box 623 Tallahassee, Florida 32302
Richard A. Patterson, Esquire 1323 Winewood Boulevard
Building 1, Room 407
Tallahassee, Florida 32399
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
S. Power, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
MERIDIAN, INC., MERIDIAN NURSING CENTERS, INC., and PINELLAS MERIDIAN LIMITED PARTNERSHIP,
Petitioner,
CASE NO.: 86-0060
vs. CON NO.: 4151
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/ HEALTH CARE AND RETIREMENT CORPORATION,
Petitioner,
CASE NO.: 86-0246
vs. CON NO.: 4150
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
RULING ON EXCEPTIONS FILED BY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
HRS excepts to that portion of paragraph (11) of the Findings of Fact which states that the most recently released population estimates and projections are the "official" population data, because that is a Conclusion of Law. Exception number one (1) is granted.
HRS, excepts to those Conclusions of Law which maintain the invalidity of the, Department's interpretation of its own rule regarding the appropriate population estimates to be utilized at the final hearing. Those Conclusions of Law found at pages 12-17 of the Recommended Order are contrary to previous Final Orders of the department and decisions of the Florida First District Court of Appeal.
The Department's interpretation of Section 10-5.011(k)2, Florida Administrative Code is set forth in Manor Care of Hillsborough County vs. HRS, 9 FALR 1102 (February 5, 1987), Florida Health Facilities Corp. vs. HRS, 9 FALR
2093 (April 17, 1987), and Broward Healthcare vs. HRS, 9 FALR 1973 (March 31, 1987), appeal pending (Fla. 1st DCA Case No. BT-258), where the Rule was interpreted to require the use of population estimates available at the time of initial review. Otherwise population projections would vary based on the date of an applicant's final DOAH hearing, thus encouraging needless applications and delay in the hope that eventually new projections would justify approval of the application. Gulf Court Nursing Center vs. HRS, 483 So.2d 700 (Fla. 1st DCA 1985), and Boca Raton AIC vs. HRS, 493 So.2d 1055 (Fla. 1st DCA 1986).
Moreover, the position taken by the department is simply an interpretation of an existing Rule, not a statement of incipient policy which must be fully explicated and supported in each case. As such, the Hearing Officer's finding in paragraph (16) of the Findings of Fact that HRS did not explicate its "policy" is stricken. Exception number two (2) is granted.
HRS exepts to the Conclusions of Law found at pages 12-17 of the Recommended Order insofar as the calculations therein rely upon population estimates which were not available at the time of the initial review of the applications. Evidence submitted by HRS, properly applying the Rule
methodology, shows insufficient need for either of petitioners' proposed projects, and it is hereby found as a fact that there is no numeric need for either of the nursing homes proposed by petitioners. Section 10-5.011(k)2, Florida Administrative Code. 1/
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the Findings of Fact, Conclusions of Law, and the rulings on exceptions stated in this Final Order.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the rulings on exceptions.
Based upon a balanced weighing of all applicable statutory and rule criteria it is
ADJUDGED, that applications for certificates of need numbers 4150 and 4151 be denied.
DONE and ORDERED this 20th day of January, 1988, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Assistant Secretary for Programs
ENDNOTE
1/ HRS relies on Humana vs. HRS, 492 So.2d 388 at 393, 394 (Fla. 4th DCA 1986) and HBA Corp. vs. HRS, 482 So2d 461 (Fla. 1st DCA 1986) in making this Finding of Fact. In Humana the Hearing Officer recommended that certificates of need be granted to 3 hospitals authorizing the hospitals to establish cardiac catheterization laboratories at each hospital. In the Final Order the Department properly concluded that only two new laboratories were needed. The department then weighed the evidence and concluded that two of the hospitals had submitted applications which were superior to the application of the Appellant, Humana, and based on that finding the department denied Humana's application for a certificate of need. The Court rejected Humana's contention that the Department had no authority to make Findings of Fact. The Hearing Officer had not weighed the relative merits of the three applications because he had recommended that the applications of all three be approved and had found that all three were at least minimally qualified.
In H.B.A. Corp. vs. HRS, page 464 the Court concluded that it was proper for the Department to make an additional Finding of Fact on the basis of competent, substantial evidence where a certain Finding of Fact by the Hearing Officer had been properly rejected.
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 HRS, AND A SECOND COPY, ALONG WITH 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
COPIES FURNISHED:
Diane D. Tremor Robert D. Newell, Jr., Esquire
Hearing Officer ROBERT D. NEWELL, JR., P.A. DOAH, The Oakland Building 102 South Monroe Street 2009 Apalachee Parkway Tallahassee, Florida 32301
Tallahassee, Florida 32301
Alfred W. Clark, Esquire Richard A. Patterson, Esquire 1725 Mahan Drive Suite 300 Assistant General Counsel Post Office Box 623 Department of Health and Tallahassee, Florida 32308 Rehabilitative Services
2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
FALR
Post Office Box 385 Gainesville, Florida 32602
Nell Mithcem (PDDR)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 25th day of January, 1988.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
| Issue Date | Proceedings |
|---|---|
| Nov. 16, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 20, 1988 | Agency Final Order | |
| Nov. 16, 1987 | Recommended Order | Certificate Of Need denied. HRS rule methodology showed insufficient need for proposed project. |
