STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OKEECHOBEE HEALTH CARE FACILITY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4447

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 2, 1990, in Tallahassee, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Bruce McKibben, Jr., Esquire

Haben & Culpepper, P.A.

306 North Monroe Street Post Office Box 10095 Tallahassee, Florida 32301

For Respondent: Thomas R. Cooper, Esquire

Assistant General Counsel Department of Health and Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive

Suite 103

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

What action should Respondent take with respect CON application 6150 and the filing fee submitted in connection with that application?

PRELIMINARY STATEMENT

On June 21, 1990, Petitioner filed a petition seeking an administrative hearing on Respondent's announced intention to deem CON application 6150 incomplete and withdrawn, based upon Petitioner's failure to respond to Respondent's omissions letter. In its petition, Petitioner requested "that this matter be forwarded to the Division of Administrative Hearings, that [Respondent] be required to reinstate CON Application 6150 for further review, and that the Division of Administrative Hearings recommend such other relief as is proper." The matter was referred to the Division of Administrative Hearings on July 18, 1990.

Pursuant to an order issued by the Hearing Officer on August 17, 1990, the parties were required to file a prehearing stipulation five days prior to hearing. The parties timely filed their prehearing stipulation on September 27, 1990. In their stipulation, the parties stated the following concerning their respective views of the issues to be litigated in the instant case:

[Petitioner] contends the sole issue to be litigated in this proceeding at this time is whether or not [Petitioner's] failure to respond to an omissions request about which it was never made aware constitutes just cause for [Respondent] to withdraw the CON application from consideration. I the alternative, the issue is whether or not [Respondent] should he granted [Petitioner] the right to respond to the omissions request and to fully consider [Petitioner's] application for cost overrun. Also, now that the facility has been sold to another entity, an issue would be whether [Respondent] should refund [Petitioner's] filing fee (in the event the withdrawal is found to have been improper) inasmuch as [Petitioner] would no longer be the proper applicant.

[Respondent] contends that the threshold issue to be litigated is whether the Petitioner Okeechobee Health Care Facility lacks standing. Secondarily, at issue is whether [Respondent] acted within its authority to withdraw application 6150 after the applicant's failure to respond to [Respondent's] omissions request.

At the outset of the final hearing held in the instant case, the parties were afforded the opportunity to present opening remarks. During his opening remarks, counsel for Petitioner conceded that, because Petitioner had sold the facility that is the subject of CON application 6150 to another entity that is not a party to this proceeding, Respondent "can no longer review that application." Accordingly, he indicated, Petitioner was simply asking for the return of the application filing fee, which, in counsel's words, "would be the only relief that would make sense to the [P]etitioner at this time."

During the evidentiary portion of the hearing, the parties each presented the testimony of one witness. Faye Williamson testified for Petitioner. Amy Jones, Respondent's Deputy Assistant Secretary for Regulation and Health Facilities, testified on behalf of Respondent. In addition to the testimony of these two witnesses, Petitioner and Respondent offered a total of ten exhibits into evidence. All ten exhibits were received by the Hearing Officer.

At the close of the evidentiary portion of the hearing on October 2, 1990, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than twenty-one days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the transcript on October 22, 1990. Thereafter, the deadline for the filing of

post-hearing submittals was twice extended by the Hearing Officer at the request of Respondent. Petitioner and Respondent timely filed proposed recommended orders on December 4, 1990, and December 5, 1990, respectively. The findings of fact proposed by the parties in their proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following findings of fact are made:

1. Okeechobee Health Care Facility (OHCF) is a licensed nursing home facility located in Okeechobee County, Florida.

   
   

2. OHCF was formerly owned and operated by Okeechobee Health Care Facility, Ltd. (Okeechobee).

   
   

3. Okeechobee was a limited partnership. Faye Williamson and her husband were its general partners.

   
   

4. In March, 1988, Okeechobee was granted, pursuant to its request, a certificate of need (CON 5454) to add a 30-bed wing to OHCF at a cost of

   $810,000.00.

   
   

5. On December 8, 1989, Okeechobee filed its final project cost report with Respondent. The report reflected that actual expenditures had exceeded the approved cost of the project by more than $650,000.00.

   
   

6. By letter dated December 13, 1989, Respondent advised Okeechobee that it was necessary for Okeechobee "to request an expedited review for a cost overrun on this project."

   
   

7. On February 22, 1990, Okeechobee filed a certificate of need application (CON application 6150) seeking such expedited review. The application was accompanied by a check in the amount of $750.00. Ms. Williamson, who submitted the application on behalf of Okeechobee, did so thinking that the application was complete. Following her submission of the application, she awaited Respondent's response. Based upon her prior experiences with Respondent in these matters, it was her understanding that if Respondent determined that the application was incomplete, it would so notify her.

   
   

8. On or about March 2, 1990, Williamson, who was identified on the application as Okeechobee's authorized representative and contact person, was telephoned by an employee of Respondent's who advised her that she needed to remit an additional $1,990.04 on behalf of Okeechobee to cover the full application filing fee. Immediately following this telephone conversation, Williamson wrote out a check in the amount of $1,990.04 and mailed it to Respondent.

9. On or about April 11, 1990, Williamson was informed that, notwithstanding what she had been telephonically advised the previous month, the

   $2,740.04 that already had been remitted did not constitute payment in full of the application filing fee and another $1,990.00 was still required. Upon being provided this information, Williamson sent a third check, in the amount of

   $1,990.00, to Respondent. In the aggregate, Respondent received $4,730.04 from Okeechobee in connection with the filing of CON application 6150.

   
   

10. On or about April 23, 1990, Respondent, by certified mail, sent to Williamson at the address indicated on the application as her mailing address (Post Office Box 728, Okeechobee, Florida 34973), an "omissions" letter, which read in pertinent part as follows:

    
    

    Your application on behalf of Okeechobee Health Care Facility, Ltd. has been received for a certificate of need for a cost overrun on Certificate of Need Number 5454, to be located in Okeechobee, Florida.

    Certain specified elements are omitted from your proposal which are nee to implement formal review. Please respond to the items noted below.

    1. For an existing health care facility, HMO or hospice, audited financial statements of the applicant for the two previous years. (The applicant's most recent complete fiscal years of operation immediately preceding the 120 day period described above). Update for period ending December 31, 1989.

    2. 7B. Please furnish a certified copy of the resolution of the board of directors pursuant to 381.709(1)(c), Florida Statutes.

    3. Conditions predicated upon award.

    4. 2C1. Terms of Financing (Appendix 5(2C1)). Letter of commitment omitted. Section 381.709(3)(a), Florida Statutes, requires that you respond to the above omissions by May 14, 1990. Failure to provide responses by this date may result in your application being deemed incomplete and administratively withdrawn from further consideration.

       
       

11. The United States Postal Service delivered this "omissions" letter on April 27, 1990. Kasee Wherrell was the person to whom delivery was made. At the time, Wherrell was an employee of Professional Accounting Systems of Okeechobee (PASO), which had contracted with Okeechobee to perform certain clerical and administrative services in connection with the operation of OHCF. Among Wherrell's duties as an employee of PASO was to go to the post office, pick up the regular mail in the OHCF post office box, bring it back to the OHCF business office and distribute it to the appropriate person(s). She was not authorized, however, to sign for and receive any certified mail.

12. Wherrell never gave Williamson the "omissions letter she had retrieved from the post office. Consequently, neither Williamson nor any other Okeechobee representative responded to the letter within the time frame specified in the letter.

    
    

13. Not having received such a response, Respondent sent Williamson the following letter, dated May 25, 1990:

    
    

    In accordance with the provisions of Section 381.707 and 381.709, Florida Statutes, you were given until May 14, 1990 to respond satisfactorily to the omissions noted in the correspondence from this office dated April 23, 1990 relative to your proposal for a cost overrun on Certificate of Need Number 5454.

    Because of your failure to provide a detailed listing of the needed capital expenditures, including sources of funds; and a certified copy of a resolution by the board of directors, your proposal has been withdrawn from further consideration, effective May 14, 1990.

    You have the right to request an administrative hearing on this decision under the provisions of Florida's Administrative Procedure Act, Chapter 120, Florida Statutes, and under Department Rule 10-5.010, Florida Administrative Code. A request for hearing, if any, must be actually received by this department within 21 days of the first day of publication of notice of the withdrawal in the Florida Administrative Weekly. A request for hearing must contain the information required in Rule 28-5.201, Florida Administrative Code, and must make reference to the "CON Action Number" referred to in this lit The

    original and one copy of each request for hearing may be filed with or mailed to the following location: Sam Power, Agency Clerk, Assistant General Counsel, Department of HRS, 1323 Winewood Blvd., Building 1, Suite 406, Tallahassee,

    Florida 32399-0700.

    
    

14. Upon receiving this letter, Williamson contacted her attorney, who in turn telephoned Amy Jones, Respondent's Deputy Assistant Secretary for Regulation and Health Facilities, to explain the circumstances surrounding Okeechobee's failure to timely respond to the "omissions" letter. After Williamson's attorney made his presentation, Jones advised him that, if he desired to have Respondent formally consider the matter, he would have to submit

    a petition for an administrative hearing in accordance with the May 25, 1990, letter that had been sent to Williamson. Such a petition was filed with Respondent's Agency Clerk on June 21, 1990.

    
    

15. Okeechobee no longer owns or operates OHCF.

    
    

16. The current owner and operator of the facility is Lifestyles and Healthcare, Ltd., (Lifestyles) which acquired the facility from Okeechobee in the spring of 1990, following the submission of CON application 6150.

    
    

17. Okeechobee was dissolved upon Lifestyles' acquisition of OHCF.

    
    

18. On or about September 14, 1990, Lifestyles was issued a license by Respondent's Office of Licensure and Certification authorizing Lifestyles to operate OHCF. The effective date of the license, as indicated on its face, was June 19, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

19. Respondent has been "designated as the single state agency to issue, revoke or deny certificates of need [for health care-related projects] and to issue, revoke or deny exemptions from certificate-of-need review in accordance with the district plans, the statewide health plan, and present and future federal and state statutes." Section 381.704(1), Fla. Stat.

    
    

20. A certificate of need must be obtained from Respondent when there is "[a]n increase in the cost of a project for which a certificate of need has been issued when such increase in cost exceeds the limits set forth in paragraph (c) or (h) [of Section 381.706(1), Florida Statues] or s. 381.702, or 10 percent of the originally approved cost of the project, whichever is less, except that no cost overrun review is necessary when the cost overrun is less than $10,000." Section 381.706(1)(k), Fla. Stat.

    
    

21. In order to obtain a certificate of need authorizing a cost overrun, an application must be filed in accordance with the provisions of Section 381.707, Florida Statues, as well as those of Florida Administrative Code Rule 10-5.008.

    
    

22. The application must be accompanied by the appropriate application filing fee. Section 381.708, Fla. Stat.; Fla. Admin. Code Rule 10-5.008(3).

    
    

23. Florida Administrative Code Rule 10-5.008(3) provides that "[a]n application filing fee is non-refundable, unless the application is not accepted by the department pursuant to paragraph (1)(d) of this rule.

    
    

24. Paragraph (1)(d) of Florida Administrative Code Rule 10-5.008, which is referenced in paragraph (3) thereof, reads as follows:

    
    

    An application for a certificate of need shall be submitted on HRS Form 1455, August 1985, incorporated by reference herein, and shall not be deemed complete by the department unless all information requested by the department and provided for in the application form has been submitted on the form by the applicant. An application submitted to the Office

    of Regulation and Health Facilities on an incorrect form, or which omits the minimum requirements specified by the department on the application form and does not include documentation that the notice of filing has been published in a newspaper of general circulation in the applicable district or subdistrict affected by the proposal in the form specified in paragraph (1)(c) of this rule, shall not be accepted by the department.

    
    

    By order issued by a Hearing Officer of the Division of Administrative Hearings pursuant to Section 120.56, Florida Statutes, on August 14, 1989, the last sentence of paragraph (1)(d) of Florida Administrative Code Rule 10-5.008 was held to be "an invalid exercise of delegated legislative authority." Inverness Health Care v. Department of Health and Rehabilitative Services, 11 FALR 4470 (DOAH 1989). 1/

    
    

25. An application for a certificate of need authorizing a cost overrun is subject to expedited review. Within fifteen calendar days after its receipt of the application, Respondent must determine whether the application is complete. If the application is deemed incomplete, Respondent must request in writing that the applicant provide the specific information necessary to render the application complete. Section 381.709(3)(a), Fla. Stat.; Fla. Admin. Code Rule 10-5.010(3)(c). If the requested information is not provided within twenty-one calendar days of the applicant's receipt of Respondent's request, the application, pursuant to Section 381.709(3)(a), Florida Statutes, and Florida Administrative Code Rule 10-5.010(3)(c), "shall be deemed incomplete and deemed withdrawn from consideration."

    
    

26. In the instant case, Okeechobee filed an application for a certificate of need authorizing a cost overrun on a previously approved project. It also submitted the appropriate application filing fee. Respondent determined that Okeechobee's application was incomplete and so notified Petitioner by letter sent by certified mail. Okeechobee did not respond to the "omissions" letter within twenty-one calendar days of the date of the letter's receipt. Given Okeechobee's failure to timely respond to the letter, Respondent made a preliminary determination that Okeechobee's application should be withdrawn from further consideration pursuant to Section 381.709(3)(a), Florida Statutes. In accordance with Florida Administrative Code Rule 28-5.111, Respondent informed Okeechobee of this preliminary determination and Okeechobee's right to request a hearing on the matter. Thereafter, Okeechobee filed a petition requesting such a hearing 2/ and the matter was referred to the Division of Administrative Hearings.

    
    

27. The issue framed by Okeechobee's petition is whether, in light of Okeechobee's failure to respond to Respondent's "omissions" letter within twenty-one calendar days of the receipt of the letter, CON application 6150 should be deemed withdrawn by operation of Section 381.709(3)(a), Florida Statutes. It is unnecessary, however, for Respondent to issue a final 3/ order resolving this issue inasmuch as Okeechobee has decided during the course of these proceedings not to pursue its application. Okeechobee's voluntary withdrawal of its application renders the issue raised in its petition moot. Accordingly, the petition should be dismissed. Sea Buffalo Tank Corp. v.

    Environmental Control Equipment, Inc., 544 So.2d 1037, 1039 (Fla. 2nd DCA 1989);

    Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985); Friends of the Everglades, Inc. v. South Florida Regional Planning Council, 447 So.2d 902 (Fla. 3rd DCA 1984).

    
    

28. In lieu of the relief sought in its petition, Okeechobee now seeks a refund of the filing fee it paid in connection with the submission of CON application 6150. To obtain a refund of monies paid into the State Treasury, a person entitled to such a refund must follow the procedural requirements imposed by Section 215.26(2), Florida Statutes, and Florida Administrative Code Rule 3A- 44.020, which provide, respectively, as follows:

    
    

    215.26 Repayment of funds paid into State Treasury through error.-

    (2) Application for refunds as provided by this section shall be filed with the Comptroller, except as otherwise provided herein, within 3 years after the right to such refund shall have accrued else such right shall be barred. The Comptroller may delegate the authority to accept an application for refund to any state agency vested by law with the responsibility for the collection of any tax, license, or account due. Such application for refund shall be on a form approved by the Comptroller and shall be supplemented with such additional proof as the Comptroller deems necessary to establish such claim; provided such claim is not otherwise barred under the laws of this state. Upon receipt of an application for refund, the state agency to which the funds were paid shall make a determination of the amount due. If an application for refund is denied, in whole or in part, such state agency shall so notify the applicant stating the reasons therefor. Upon approval of an application for refund, such state agency shall furnish the Comptroller with a properly executed voucher authorizing payment.

    3A-44.020 Application for Refund of Taxes Paid.

    1. Authority to accept applications

       for refund of monies paid into the State Treasury as provided by Section 215.26, Florida Statutes, is herewith delegated to any state agency vested by law with the responsibility for the collection of any tax, license or account due, or to any state agency which has in fact collected any sum represented to be any tax, license or account due, as those terms are used in Section 215.26, Florida Statutes.

    2. Applications for refunds under Section 215.26, Florida Statutes, are to be filed initially with that state agency responsible for or which has collected such tax, license or account due or with the Office of the Comptroller. Applications filed with the Comptroller will automatically be forwarded to the state agency which initially collected or is responsible for the collection of any such tax, license or account due.

    3. Any such state agency receiving an application for refund as stated above shall proceed to review the same and to promptly make a determination as provided by Section 215.26(2), Florida Statutes, of the amount due, if any, under the applicable laws and in accordance with the Rules of that agency.

       1. If that state agency approves the application, it shall voucher a request for warrant to the Comptroller with appropriate supporting documentation where required or necessary for proper audit and payment according to generally accepted auditing standards.

       2. If that state agency determines that the application should be wholly or partially denied, it shall so notify the applicant of its determination as required by Chapter 120, Florida

          Statutes, and provide the applicant with an appropriate entry point into an administrative proceeding under the provisions of Chapter 120, Florida Statutes, and the Rules of such agency.

       3. Should the state agency's denial of an application be subsequently reversed in whole or in part by final order resulting from an administrative hearing or final order of any proper court, after all further judicial and administrative remedies have been barred such state agency shall voucher any refund as is appropriate and necessary for a proper audit according to generally accepted auditing standards.

    4. Applications for refund should be filed on the Application for Refund form (DBF-AA-4) effective 12/1/85, revised 7/1/87, incorporated herein by reference, available from the Division of Accounting and Auditing of the Department of Banking and Finance, or on such similar form as may have been

    approved or adopted by that agency responsible for administering any law imposing a tax, license or account payable. However, any such form as adopted by any other state agency must contain essentially the same basic information as form DBF-AA-4 together with such other and further information as the adopting agency may require, and such other form must be approved by the Division of Accounting and Auditing of the Department of Banking and Finance prior to the date such form becomes effective for general use.

    
    

    Okeechobee has not shown that it has filed an application for refund as required by the foregoing statutory and rule provisions.

    
    

29. Moreover, it appears that Okeechobee is not entitled to a refund of its application filing fee. A refund of monies paid into the State Treasury may not be made unless authorized by law. See State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560, 562 (Fla. 1954); 1978 Op. Att'y Gen. Fla. 078-149 (December 22, 1978). There is no statutory or rule provision authorizing the refund of a certificate of need application filing fee to an applicant who has voluntarily withdrawn its application, as Okeechobee has done in the instant case. Indeed, the only statutory or rule provision addressing the subject of the refund of a certificate of need application filing fee clearly provides that such a filing fee is non-refundable under the circumstances present in the instant case. Fla. Admin. Code Rule 10-5.008(3).

RECOMMENDATION

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

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order (1) dismissing the instant petition on the ground that the issue raised therein has become moot as a result of Okeechobee's voluntary withdrawal of CON application 6150, and (2) declining to refund the certificate of need application filing fee paid by Okeechobee in connection with the submission of CON application 6150.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December, 1990.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1990.

ENDNOTES

1/ At hearing in the instant case, the Hearing Officer announced his intention to take official recognition of the final order issued in the Inverness Health Care case. Neither party indicated that it had any objection to the Hearing Officer taking such action.

2/ Although the petition refers to the petitioner as "Okeechobee Health Care Facility," not "Okeechobee Health Care Facility, Ltd.," it is apparent from a reading of the entire petition that it was filed by the entity that submitted CON application 6150, to wit: Okeechobee. Okeechobee's failure to accurately recite its complete name in the petition constitutes a "technical error which is patently harmless" and therefore should be ignored. Emerson Realty Group, Inc.

v. Schanze, 15 FLW D2897, D2898 (Fla. 5th DCA November 29, 1990).

3/ While Respondent has indicated its intention to deem Okeechobee's application withdrawn from consideration pursuant to Section 381.709(3)(a), Florida Statutes, it has not yet taken any final action in this regard. See Beverly Enterprises Florida, Inc. v. Department of Health and Rehabilitative Services, 15 FLW D3041, D3043 (Fla. 1st DCA December 14, 1990)("A request for a formal administrative hearing commences a de novo proceeding intended to formulate agency action, and not to review action taken earlier or preliminarily"); Edgar v. School Board of Calhoun County, 549 So.2d 726, 728 (Fla. 1st DCA 1989)(formal "hearings are intended to formulate final agency action, not review action already taken"); Capeletti Brothers, Inc. v.

Department of General Services, 432 So.2d 1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the purpose of the Section 120.57 hearing. The rejection of bids never became final agency action. As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind").

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4447

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties in the instant case:

Okeechobee's Proposed Findings of Fact

1-4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

5. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6-10. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Accepted and incorporated in substance.

15-17. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

18-21. Rejected as findings of fact because they more in the nature of statements concerning the interpretation of statutory and rule provisions than factual findings.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected because it is more in the nature of a statement of law or legal argument than a finding of fact.

3. Rejected because it is more in the nature of a summary of testimony given at hearing than a finding of fact.

4. First sentence: Rejected because it is not supported by competent substantial evidence; Second sentence: Accepted and incorporated in substance.

5. Rejected because it constitutes argument concerning a matter that has no bearing on the outcome of the instant case.

6. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it constitutes argument relating to the legal issues raised in the instant case rather than a factual finding.

7. Rejected because if would add only unnecessary detail to the factual findings made by the Hearing Officer.

Respondent's Proposed Findings of Fact

1-3. Accepted and incorporated in substance.

4. Rejected because it is more in the nature of a statement of law or legal argument than a finding of fact.

5-6. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony given at hearing than a finding of fact.

2. First sentence: Rejected because it is more in the nature of a summary of testimony given at hearing than a finding

20 of fact; Second sentence: Accepted and incorporated in substance.

9-13. Rejected because they are more in the nature of a statements of law or legal argument than findings of fact.

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding addresses the matter of Respondent's receipt of monies set by Williamson, it has been accepted and incorporated in substance. To the extent that it asserts that the receipt of the fee "activated the time frames for omissions review" it has been rejected as more in the nature of a statement of law or legal argument than a finding of fact.

3. To the extent that this proposed finding states that "[o]n April 23, 1990, ... HRS sent to [Okeechobee] an omissions request," it has been accepted and incorporated in substance. To the extent that it asserts that, in so doing, Respondent acted "within the time frames required by statute and rule," it has been rejected as more in the nature of a statement of law or legal argument than a finding of fact.

17-18. Accepted and incorporated in substance.

19. Rejected because it is more in the nature of a summary of testimony given at hearing than a finding of fact.

20-21. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

22. Rejected because it is more in the nature of a summary of testimony given at hearing than a finding of fact.

23-24. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. Rejected because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact.

28-30. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

R. Bruce McKibben, Jr., Esquire Haben & Culpepper, P.A.

306 North Monroe Street Post Office Box 10095 Tallahassee, Florida 32302

Thomas R. Cooper, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive

Suite 103

Tallahassee, Florida 32308

R.S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-004447

Orders for Case No: 90-004447