Judges: SHARYN L. SMITH
Agency: Agency for Health Care Administration
Latest Update: Jan. 05, 1987
Summary: Preponderance of evidence supports finding that Petitioner's Letter of Intent was received on time. Petitioner need not file LOI with specific program office of HRS.
86-4458STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PUBLIC HEALTH TRUST OF ) DADE COUNTY, )
)
Petitioner, )
)
vs. )
) CASE NO. 86-4458 DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, on December 18, 1986. The parties were represented by counsel.
APPEARANCES
For Petitioner: Robert L. Blake, Esquire
Assistant County Attorney Public Health Trust Division Jackson Memorial Hospital 1611 Northwest 12th Avenue West Wing 108, Suite C Miami, Florida 33136
For Respondent: John Rodriguez
Legal Representative Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
The issue for determination at the final hearing was whether a Letter of Intent for acquisition of a C.T. scanner was timely filed with the Department of Health and Rehabilitative Services by the Petitioner.
At the final hearing the parties submitted a Joint Stipulation of Facts.
Pursuant to that stipulation, Petitioner's Exhibits 1-4 were admitted. No transcript of the hearing was prepared. The parties filed Proposed Recommended Orders which has been considered in the formulation of this Recommended Order.
FINDINGS OF FACT
The parties to this administrative action have stipulated to certain facts for evidentiary purposes, and with the Exhibits and applicable law, form the bases upon which this case will be decided. The parties agree that the operative facts are as follows:
Pursuant to Section 381.494(5), Florida Statutes (1985) and Rule 10.5.08, Florida Administrative Code, a Letter of Intent to apply for a Certificate of Need must be received by the Department and the Local Health Council on or before Monday, September 15, 1986. See Section 381.494(5), Florida Statutes, which provides as follows:
[a]t least 30 days prior to filing an application, a letter of intent shall be submitted by the applicant to the local health council and the department respecting the development of a proposed subject to review.
Through the affidavit of Ruth Alveranga, Executive Secretary to the Vice President of Operations, Jackson Memorial Hospital, it was established that Ms. Alveranga personally typed and handed the Petitioner's Letter of Intent to a postal employee, who was at the time picking up mail at Jackson, on Friday, September 12, 1986.
Both parties were informed by the Postmaster General of Tallahassee, Florida, that under normal circumstances, letters mailed in Miami to the Department on Friday, will be delivered to the Department the following Monday.
Because of a staff shortage due to employee absenteeism and the usual large flow of mail which is delivered each Monday, some of the mail received at the Department on Monday, September 15, 1986, was neither identified nor distributed to the various Program Offices, nor was the mail stamped as received on or before September 15, 1986.
The mail received at the Department's mail room on or before September 15, 1986 was delivered to the Office of Health Planning and Development and other sections of the Department on September 16, 1986, where it was stamped as being received by the Department on September 16, 1986.
The Office of Health Planning and Development has accepted Letters of Intent received after the due date, if it was documented that an agent, such as Federal Express, was negligent in the timely delivery of the Letter of Intent.
At the final hearing, the Department raised the issue of whether the Petitioner has timely filed its application with the local health council. However, the local health council did not assert the untimeliness of such filing in this proceeding, but rather urged the Department to accept the application because of the severe over-utilization of the present C.T. scanner being experienced by the applicant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
The Petitioner established that its Letter of Intent was mailed in Miami, Florida, on Friday, September 12, 1986. In light of the statement by the Postmaster General of Tallahassee, Florida, that letters mailed in Miami, Florida, on Friday (under normal circumstances), will be delivered to the Department the following Monday, and that mail received in the Department's mailroom on the following Monday was neither stamped, identified nor distributed, the preponderance of the evidence supports a finding that the Petitioner's Letter of Intent was received by HRS on Monday, September 15, 1986.
Section 381.494(5), Florida Statutes, which requires that a Letter of Intent be received by the Department on or before September 15, 1986, does not require an applicant to submit a letter of intent to a specific program office of the Department. Contrary to the Department's position, the plain language of the statute and the rule only require that an applicant file its letter of intent with the Department.
If the Department desires to modify its rule to require filing with a specific program office in a particular location, it can easily do so by initiating rulemaking proceedings and amending its rule. Until such time, the Department may not, by internal policy or strained statutory construction, alter the clear intent of the legislature in enacting Section 381.494(5), Florida Statutes.
It was, therefore, established and proved that the Petitioner complied with Section 381.494(5), Florida Statutes (1985) and Rule 10-5.08, Florida Administrative Code.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department accept the Petitioner's Letter of Intent as
timely filed, expedite review of Petitioner's Certificate of Need and make a determination regarding Petitioner's Application for a Certificate of Need within thirty (30) days from the day the application is declared to be complete.
DONE and ENTERED this 5th day of January, 1987 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 5th day of January, 1987.
COPIES FURNISHED:
Robert L. Blake, Esquire Assistant County Attorney Public Health Trust Division Jackson Memorial Hospital 1611 N.W. 12th Avenue
West Wing, 108, Suite C Miami, Florida 33136
John Rodriguez
Legal Representative Department of HRS
1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
William Page, Jr., Secretary Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Docket for Case No: 86-004458
Orders for Case No: 86-004458
| Issue Date |
Document |
Summary |
|
Feb. 12, 1987 |
Agency Final Order
|
|
|
Jan. 05, 1987 |
Recommended Order
|
Preponderance of evidence supports finding that Petitioner's Letter of Intent was received on time. Petitioner need not file LOI with specific program office of HRS.
|
