STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HEALTH QUEST CORPORATION, ) (SOUTHWEST DUVAL COUNTY) )
)
Petitioner, )
)
vs. ) CASE NO. 87-3510
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this cause on February 11, 1988, in Jacksonville, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Steven W. Huss, Esquire
1017 Thomasville Road, Suite C Tallahassee, Florida 32303
For Respondent: Richard Patterson, Esquire
Assistant General Counsel Department of Health and
Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive
Tallahassee, Florida 32308 ISSUE
The issue is whether Petitioner, Health Quest Corporation (Health Quest), is entitled to a Certificate of Need (CON) to build a nursing home in Southwest Duval County, District IV, Subdistrict 2.
BACKGROUND AND PROCEDURAL MATTERS
Health Quest filed a CON application for a 180-bed nursing home in the January, 1987, batch. Prior to that application being deemed complete, Health Quest modified it by requesting a 120-bed CON, a 110-bed CON, and a 70-bed CON. At hearing, Health Quest proceeded under its application for 110 beds.
Health Quest presented the testimony of Kevin Krisher, an expert in health care planning and nursing home planning and development, including the areas of financing, financial feasibility, need, and the costs related to financing and financial feasibility. Health Quest's Exhibits 2, 3, 7-12, 14, 15, 17-23, 26, and 28-35 were admitted in evidence. The Department of Health and
Rehabilitative Services (HRS) presented the testimony of Reid Jaffe, an expert in health planning and Florida CON review. HRS had Respondent's Exhibit 3 admitted in evidence. By agreement of the parties, the record in this matter remained open for the filing of the deposition testimony of Robert Griffin.
The transcript was filed on March 14, 1988, and the deposition of Griffin was filed on March 18, 1988. The parties timely filed their proposed findings of fact and conclusions of law on March 28, 1988. Health Quest also filed a Request for Official Notice on March 28, 1988. This is an inappropriate time and vehicle with which to supplement the record and the Request for Official Notice is hereby denied.
All proposed findings of fact and conclusions of law have been considered.
A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Health Quest timely filed a letter of intent for a 120-bed nursing home in District IV, Subdistrict 2, Southwest Duval County. Health Quest then timely filed a CON application for a 180-bed facility. The application was designated CON Action No. 4954. It was filed in the January, 1987, batch with a horizon of January, 1990.
Prior to the application being deemed complete, Health Quest filed documentation to support partial approval of 110 beds or 70 beds. In this proceeding Health Quest is pursuing only the 110-bed application. The application of Health Quest was initially denied in the State Agency Action Report (SAAR) issued in June, 1987.
From that batch, the SAAR approved CONs for 240 beds to fill a projected need of 278 beds.
By their Prehearing Stipulation, the parties agreed that only two issues remained for determination and that Health Quest met all other criteria for approval of its application. The remaining issues are:
Whether Health Quest has available the necessary "funds for capital and operating expenditures for project accomplishment and operation" as specified in Section 381.705(1)(h), Florida Statutes (1987).
Whether there is a need for the proposed project under the bed need methodology, Rule 10-5.011(1)(k), Florida Administrative Code. Within this issue are two sub-issues which affect the application of the methodology:
Whether the 192 beds at River Garden Hebrew Home should be subtracted from the inventory of approved beds based on the CON issued to it for construction of a 180-bed facility in Subdistrict 3, which is to replace its
192-bed facility in Subdistrict 2.
Whether Section 381.713(4), Florida Statutes (1987), requires exclusion from the approved bed inventory of the 105 beds approved for Health Quest by CON No. 2696.
AVAILABILITY OF FUNDS
Health Quest is an existing provider of health care services, operating a dozen nursing centers in three states, in addition to providing pharmacy and therapy services throughout the Midwest.
Health Quest operates three nursing homes in Florida, along with more than 300 retirement apartments and other outpatient medical services. Health Quest's Jacksonville and Boca Raton facilities have been awarded superior licenses by HRS. Its other Florida facility has not been open long enough to be eligible for a superior license.
Health Quest also has two projects under construction in Florida. Additionally, Health Quest has been awarded six other CONs in Florida. Of these six projects, two are in the site selection phase, three are being transferred (sold) to other developers subject to HRS approval, and one may be transferred.
The transfers of those CONs result from Health Quest's lack of management resources to develop all of its projects at one time. Specifically, Health Quest has sufficient financial resources to develop these projects, but prefers to limit its rate of growth rather risk compromise of its quality standards by rapidly expanding its existing management staff for its current generation of projects.
Health Quest's net worth is approximately $91,000,000. According to its most recent audited financial statement, it operated profitably in 1987.
Since May, 1987, Health Quest has obtained financing of $29,000,000 from Citibank for two nursing home/retirement center complexes which it is now constructing in Florida. Citibank has expressed interest in financing Health Quest's future projects.
Health Quest has sufficient funds for capital and operating expenditures, for project accomplishment, and for project operation.
CALCULATION OF NEED
Whether there is sufficient need for approval of Health Quest's application is determined by applying the need methodology in Rule 10- 5.011(1)(k)2, Florida Administrative Code. This complex calculation involves application of eight factors: four population figures, the number of licensed beds for the district and subdistrict, the occupancy rate for the subdistrict, and the number of CON-approved but unlicensed beds in the subdistrict. The parties were in agreement on the population figures, on the number of licensed beds in the subdistrict, and on the occupancy rate for the subdistrict. They disagree on the other two factors. The parties agree that the poverty adjustment is not applicable.
Health Quest used the figure of 5,651 licensed beds in the district. This was the number used in the January, 1990, horizon fixed pool and the number contained in the district inventory as of December 1, 1986.
HRS used the figure of 5,861 licensed beds in the district. The difference of 210 beds results from reclassification of sheltered beds in the district. As a result of changes in Chapter 651, facilities with sheltered beds
had the option of calling themselves nursing home beds. If they exercised the option, they were no longer sheltered and were counted in the district inventory of licensed beds.
The use of 5,861 as the number of licensed beds in the district is correct because the previously sheltered beds have been added to the inventory.
However, for purposes of applying the methodology, the subdistrict allocation of nursing home beds is 1,774 no matter which factor is used for licensed beds in the district.
The remaining issue is the correct number of approved but unlicensed beds in the subdistrict. This issue involves two sub-issues as set forth in Finding of Fact 4, supra, to wit: River Garden's 192 beds and the application of Section 381.713(4).
River Garden's Beds
It is undisputed that River Garden Hebrew Home currently has 192 beds licensed and occupied in Subdistrict 2. It holds a CON to construct a new 180- bed facility in Subdistrict 3. When that facility is complete, River Garden will close its Subdistrict 2 facility and 12 beds will be delicensed. The problem involves the method by which these matters should be reflected in the current bed need allocation and the projected bed need allocation for the horizon year.
HRS deducted the 192 beds from its January 26, 1987, published need projections for the January, 1990, planning horizon. In that projection, HRS used an approved bed factor of 108 which reflected subtraction of the 192 beds pursuant to the CON issued to River Garden. Since River Garden was still licensed for 192 beds until the new facility is built, licensed beds in the subdistrict were calculated as 1399, which included the 192 beds.
HRS also used these figures in the SAAR which denied Health Quest herein and which approved 240 beds to fill a projected need of 278 beds in the subdistrict.
HRS continued to use this method to deal with the River Garden situation in its August, 1987, need report for the July, 1990, planning horizon. Finally HRS used the same method in its SAAR in the most recent batch of nursing home applicants, which was issued in February, 1988.
According to Reid Jaffe, HRS takes the position in this case that River Garden's 192 beds should be counted as licensed and should not be deducted from approved beds, because nothing in the rules allows subtraction of beds. Jaffe also testified that HRS was in error in deducting the beds in both need projections and SAARs for the last two batches.
Robert Griffin, Jaffe's supervisor, testified that errors in fixed need pool calculations, if discovered prior to the deadline for letters of intent, would be corrected by publication in the Florida Administrative Weekly. If such errors were not discovered by that time, the fixed pool would remain the same for that batch and would be corrected or adjusted in the next fixed need pool.
Jaffe's testimony as to HRS policy is in direct conflict with that of Griffin. Accordingly, it is construed that HRS' policy is that which it
actually did, before, during, and after the batch at issue here, namely to count River Garden in the licensed bed inventory, but subtract it from the approved bed inventory for the subdistrict.
Accordingly, it is found that the correct factor of licensed beds in the subdistrict is 1399 and that the 192 beds of River Garden should be subtracted from the approved bed inventory as the methodology is applied in this case.
Section 381.713(4)
Section 381.713(4) states in pertinent part:
(4) VALIDITY OF CERTIFICATE OF NEED.--A certificate of need issued by the department for nursing home facilities of 100 beds or more prior to February 14, 1986, is valid, provided that such facility has expended at least $50,000 in reliance upon such certificate of need, excluding legal fees, prior to the initiation of proceedings under the Administrative Procedures Act subsequent to February 147 1986, contesting the validity of the certificate of need. If such nursing home certificate of need includes beds that have not yet been licensed as of June 17, 1987, such beds shall not be considered or utilized in the determination of need or included in the inventory of licensed or approved nursing home beds by the department, with respect to applications filed before June 17, 1987...
Health Quest asserts that its own CON No. 2696 for 105 beds should be excluded from the inventory of approved beds based on this statute. HRS simply takes the position that Section 381.713(4) does not apply in this case.
CON No. 2969 was issued on January 31, 1985, prior to the February 14, 1986, time frame of the statute.
On April 29, 1987, Health Quest expended $670,850 for the site for CON No. 2696.
The beds in CON No. 2696 have not yet been licensed.
Health Care and Retirement Corporation of America (HCR) filed a Petition for Formal Administrative Proceeding dated June 16, 1987. The record herein does not show when the Petition was actually filed at HRS, but it is undisputed that it was filed and was assigned HRS Case No. 87-400. By its Petition, HCR sought to initiate proceedings to contest the validity of CON No. 2696.
By its Final Order in HRS Case No. 87-400FO, HRS dismissed HCR's Petition on the grounds that it was barred by the law and the equitable doctrine of laches. The Petition, which sought to initiate proceedings pursuant to Section 120.57(1), was denied by HRS.
Section 381.713(4) is found not to apply to the facts of this case.
Accordingly, the need allocation applicable to this case is calculated as follows:
1774-(1399 + (108 x .9)) = 278.
This calculation utilizes as approved beds in the subdistrict the factor of 108. It is further undisputed that 240 beds were approved in this batch. Hence, there is an unmet need in the subdistrict for 38 beds.
Since Health Quest is seeking 110 beds, there is insufficient need for the proposed facility. Health Quest's application should be denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Health Quest bears the burden of establishing entitlement to the CON it seeks, by showing that it meets the criteria in Section 381.705, Florida Statutes (1987). It has failed to meet this burden.
Quite simply, Health Quest could prove an adequate need for the project only if it could show both that the 192 beds of River Garden should be subtracted from the approved bed inventory and that CON No. 2696 should be subtracted from the approved bed inventory as a result of application of Section 381.713(4), Florida Statutes (1987). It succeeded in the first instance, but failed in the second.
HRS failed to justify the proposed departure from its well-documented practice of not adjusting the fixed pool applicable to a batch after the application process had begun (after that point in time when applicants had acted in reliance on the published fixed pool). Throughout this batch and the next batch, HRS has subtracted the 192 River Garden beds from the approved bed inventory. The departure from this course of conduct proposed by Mr. Jaffe was both unexplained and irrational, not to mention that it was in direct conflict with the Position taken by Mr. Griffin, Jaffe's supervisor and the Deputy Assistant Secretary for Regulation and Health Facilities. See McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).
The clear meaning of Section 381.713(4), as set forth in Finding of Fact 26, shows that Health Quest does not meet all the conditions for application of the statute. Specifically, HCR sought to initiate proceedings by filing a Petition, but the petition was denied. In other words, HCR was not permitted to initiate proceedings. To allow any other interpretation would be to defeat the intent of the statute. Under the interpretation urged by Health Quest, any petition to challenge the validity of a CON, no matter how specious, would trigger application of the statute and the beds of the challenged CON would be permanently removed from the approved bed inventory and the licensed bed inventory for calculation of need in the future. The Legislature could not have intended such an irrational result, a result that would defeat the spirit and intent of the entire Health Facility and Services Development Act of 1987.
Additionally, HRS is deemed to have special knowledge and experience in decisions interpreting and applying the statutes it is charged with
administering. HRS does not interpret the statute as applying to CON No. 2696. Neither does this Hearing Officer. Accordingly, it is concluded that Section 381.713(4) does not apply to CON No. 2696 such as to remove it from the bed inventory.
Having found that the net need in Subdistrict 2 of District IV is 38, it is now concluded that Health Quest is not entitled to CON No. 4954 for construction of a 110-bed nursing home in Southwest Duval County.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter
a Final Order denying CON No. 4954 to Health Quest Corporation.
DONE and ORDERED this 4th day of April, 1988, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3510
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Health Quest Corporation (Southwest Duval County)
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1); 3(2); 4(2); 5(3); 6(4); 7(5); 8 & 9(6); 10(7); 11 & 12(9); 13(10); 14(8); 19(11); 20(12); 21(4 & 18); 22(4 & 26); 26(19 & 20); 27(21); 29(23 & 24); 30(23); 31(19-24); 32(22-24); 34(26); 35(27); 36(28); 39(30); and 40(1).
Proposed findings of fact 15, 43-51, 53, 55, 57-61 and 70-72 are rejected as being unnecessary.
3. Proposed findings of fact 16, 23-25, 28, 33, 37, 38, 41, 42, and 54 are subordinate to the facts actually found in this Recommended Order.
Proposed finding of fact 17 is irrelevant.
Proposed findings of fact 18 and 65-69 are rejected as being argument.
Proposed findings of fact 52 and 56 are rejected as being speculation beyond the evidence in this proceeding.
Proposed findings of fact 62-64 and 73 are rejected as being unsupported by the record and competent, substantial evidence.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1-3); 2(2); 3(4); 4(1); 6(14, 15, 25); 7(12); 9(14); 11(12); 12(12); 14(27); and 15(7 & 8).
Proposed findings of fact 5, 8, and 10 are subordinate to the facts actually found in this Recommended Order.
Proposed finding of fact 13 is unnecessary.
COPIES FURNISHED:
Steven W. Huss, Esquire
1017 Thomasville Road, Suite C Tallahassee, Florida 32303
Charles M. Loeser General Counsel
Health Quest Corporation
315 West Jefferson Boulevard South Bend, Indiana 46601
Richard A. Patterson, Esquire 2727 Mahan Drive
Tallahassee, Florida 32308
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
HEALTH QUEST CORPORATION, (SOUTHWEST DUVAL COUNTY),
Petitioner,
CASE NO.: 87-3510
vs. CON NO.: 4954
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 HEALTH QUEST
Health Quest excepts to the Hearing Officer's conclusion that Section 381.713(4), Florida Statutes (1987) is not applicable to CON number 2696. As pointed out by the Hearing Officer the interpretation urged by Health Quest is contrary to the intent of the Health Facility and Services Development Act of 1987. Additionally, she points out the result would be absurd in that, as Health Quest sees it, any petition no matter how frivolous would trigger application of the Section. The Hearing Officer's conclusion is sound and the exception is denied.
Health Quest excepts to the Hearing Officer's refusal to accept its proposed findings of fact regarding its interpretation of Section 381.713(4), Florida Statutes (1987). Health Quest maintains that the department has interpreted the Section in the past as Health Quest interprets it and thus, the department must blindly follow precedent. It is far better for an agency to correct itself, than to woodenly persists in following precedent. Exceptions number two, three, and four (2, 3, 4) are denied.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order. Certificate of need number 4954 was submitted in January, 1987; thus, the rule amendment effective March 2, 1987, which provides for publication of a fixed need pool was not applicable to this application. Section 10-5.008(2), Florida Administrative Code. Based on a balanced weighing of all applicable statutory and rule criteria, I conclude that Health Quest's application should be denied.
Based upon the foregoing, it is
ADJUDGED, that Health Quest's application for certificate of need number 4954 be denied.
DONE and ORDERED this 12th day of May, 1988, in Tallahassee, Florida.
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services
by Assistant Secretary for Programs
COPIES FURNISHED:
Theodore Mack, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
Steven W. Huss, Esquire Attorney at Law
1017 Thomasville Road Suite C
Tallahassee, Florida 32303
Richard Patterson, Esquire Assistant General Counsel Department of Health and
Rehabilitative Services 2727 Mahan Drive
Fort Knox Executive Center Tallahassee, Florida 32308
Diane K. Kiesling Hearing Officer
DOAH, The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
FALR
Post Office Box 385 Gainesville, Florida 32602
Nell Mitchem (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 17th day of May, 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
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 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
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
HEALTH QUEST CORPORATION, NOT FINAL UNTIL TIME EXPIRES
TO FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 88-1269
DOAH CASE NO. 87-3510
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Appellee.
/
Opinion filed August 2, 1989.
An appeal from an order of the Department of Health and Rehabilitative Services,.
Steven W. Huss, Tallahassee, for Appellant.
Richard A. Patterson, Assistant General Counsel, Department of Health and Rehabilitative Services, Tallahassee, for Appellee.
PEARSON, Tillman (Ret'd), ASSOCIATE JUDGE.
Health Quest Corporation (Health Quest) appeals a final order of the Department of Health and Rehabilitative Services (HRS) denying Health Quest's application for a certificate of need. The sole issue in this case is whether section 381.713(4), Florida Statutes (1987), mandates the exclusion of a prior issued certificate issued to the same applicant, Health Quest, from the determination of need upon the application for this new certificate of need. We affirm the final order denying the application for this new certificate and approve the conclusion of law of the hearing officer, which was in turn adopted by the department, that Health Quest did not meet the conditions for the application of the statute.
A short history of the two applications follows. A certificate of need (CON 2696) for more than 100 beds was issued to Health Quest on January 31, 1985. On April 29, 1987, Health Quest expended $670,850 for the site. An entity, Health Care and Retirement Corporation of America, filed a petition for Formal Administrative Proceeding dated June 16, 1987. This late filed petition sought to initiate proceedings to collaterally attack CON 2696 two and one-half years after its issuance. Health Quest responded to the attack by a motion to dismiss the petition on the grounds that the petition was an untimely, sham pleading. The department dismissed the petition upon the grounds that it had no basis in law, and on laches. Thus Health Quest was left holding a CON for more than 100 beds upon which it had expended substantial assets.
In January of 1987, Health Quest filed the application with which we now must deal. This application is for approval of a 110-bed facility, and Health Quest argues on this appeal that a need for the facility should be found because section 381.713(4), Florida Statutes (1987), requires the exclusion from the calculation of need its own allotment of more than 100 beds under CON 2696.
Section 381.713(4)
26. Section 381.713(4) states in pertinent part:
(4) VALIDITY OF CERTIFICATE OF NEED.--A certificate of need issued by the department for nursing home facilities of 100 beds or more prior to February 14, 1986, is valid, provided that such facility has expended at least $50,000 in reliance upon such certificate of need, excluding legal
fees, prior to the initiation of proceedings under the Administrative Procedures Act subsequent to February 14, 1986, contesting
the validity of the certificate of need. If such nursing home certificate of need includes beds that have not yet been licensed as of June 17, 1987, such beds shall not be considered or utilized in the determination of need or included in the inventory of licensed or approved nursing home beds by the department with respect to applications filed before June 17, 1987. .
. .
Health Quest contends that any petition for hearing filed with the agency activates the statute, even though the petition is untimely or sham and is dismissed as unauthorized by law. The hearing officer ruled:
The clear meaning of Section 381.713(4), as set forth in Finding of Fact 26, shows that Health Quest does not meet all the conditions for application of the statute. Specifically, HCR sought to initiate proceedings by filing a Petition, but the petition was denied. In other words, HCR was not permitted to initiate proceedings. To allow any other interpretation would be to defeat the intent of the statute. Under the interpretation urged by Health Quest, any petition to challenge the validity of a CON, no matter how specious, would trigger application of the statute and the beds of the challenged CON would be permanently removed from the approved bed inventory and the licensed bed inventory for calculation of need in the future. The Legislature could not have intended such an irrational
result, a result that would defeat the spirit and intent of the entire Health Facility and Services Development Act of 1987.
The rule in effect at the time CON 2696 was issued afforded interested parties thirty days in which to request a hearing in order to challenge the issuance of the certificate. It read:
Within 30 days of the department's decision on a certificate of need application, any person may, for good cause shown, request in writing a public hearing for purposes of reconsideration of the department's decision.
R. 10-5.10(10), Florida Administrative Code. The rule was jurisdictional in nature. See Florida Convalescent Centers, Inc. v. State Department of Health and Rehabilitative Services, 445 So.2d 631, 632-3 (Fla. 1st DCA 1984), Humana of Florida, Inc. v. Department of Health and Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (1987). In Humana, this court stated that before an agency has "review" jurisdiction, a timely petition for review must be filed. That case was not concerned with section 381.713(4), but is persuasive in view of the facts of this case.
CON 2696 was issued on January 31, 1985 and afforded all persons thirty
(30) days from the issuance of the CON in which to request a public hearing for the purpose of reconsideration. The petition that Health Quest now claims to have triggered the statute was filed on June 16, 1987. To hold that this untimely petition was the "initiation of proceedings" not only would strain the clear meaning of the statute but would produce an illogical and unjust result. 1/
We therefore affirm the final order of the Department of Health and Rehabilitative Services.
AFFIRMED.
ERVIN and JOANOS, JJ., CONCUR.
ENDNOTE
1/ We note that where the right to comparative review was established in Gulf Court, there was no question that the petition for a section 120.57 hearing by Gulf Court was timely filed with the Department. Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700, 703 (Fla. 1st DCA, 1985).
| Issue Date | Proceedings |
|---|---|
| Apr. 04, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 02, 1989 | Opinion | |
| May 12, 1988 | Agency Final Order | |
| Apr. 04, 1988 | Recommended Order | Filing a petition which is denied doesn't initiate proceeding so as to remove challenged beds from inventory for future need calculation. |
