STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN MEMORIAL MEDICAL CENTER, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-4868

) AGENCY FOR HEALTH CARE ADMINISTRATION, )

)

Respondent. )

) HCA HEALTH SERVICES OF FLORIDA, INC., ) d/b/a HCA MEDICAL CENTER OF PORT ST. ) LUCIE, )

)

Intervenor. )

)

RECOMMENDED ORDER OF DISMISSAL

This case was heard by Eleanor M. Hunter, Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida, on September 26, 1994.

APPEARANCES

For Petitioner: Byron B. Mathews, Jr. Martin Memorial Attorney At Law

Medical Center, Miami Center, 22nd Floor Inc. 201 South Biscayne Boulevard

Miami, Florida 33131

For Respondent: Richard A. Patterson Agency for Attorney At Law

Health Care Agency for Health Care Administration Administration The Atrium Building, Suite 325

325 John Knox Road

Tallahassee, Florida 32303-4131

For Intervenor: Jeffrey Frehn HCA Health Attorney At Law

Services of RADEY HINKLE THOMAS & MCARTHUR

Florida, d/b/a 101 North Monroe Street, Suite 1000 HCA Medical Post Office Drawer 11307

Center of Port Tallahassee, Florida 32302 St. Lucie

PRELIMINARY STATEMENT

Martin Memorial Medical Center, Inc. ("Martin Memorial") challenged the preliminary issuance of certificate of need ("CON") No. 7241 to establish adult inpatient cardiac catheterization ("cath") services at HCA Services of Florida, Inc., d/b/a HCA Medical Center of Port Saint Lucie ("HCA Medical Center"). In

their Joint Prehearing Stipulation of September 2, 1994, the parties agreed that HCA Medical Center's entitlement to the CON depends solely on whether there is a numeric need for an additional adult inpatient cardiac cath program in Agency For Health Care Administration ("AHCA") District 9. AHCA published its numeric need determination on February 5, 1993, and its preliminary decision on July 23, 1993. The petition in the CON case was filed, pursuant to subsection 120.57(1), Florida Statutes, on August 25, 1993.

Martin Memorial also challenged, as an unpromulgated rule, AHCA's requirement that notice of any errors in a numeric need publication must be given to AHCA within ten (10) days of the date of the publication and any challenges filed within thirty (30) days. The petition challenging the unpromulgated rule was filed on May 26, 1994, with a Motion to Consolidate the rule case with the CON case. The Motion To Consolidate was denied initially, for the reasons given in an AHCA Response in Opposition to the Motion To Consolidate, but subsequently reconsidered and granted upon the filing of the parties' Joint Motion For Consolidation.

In August 1994, AHCA published the ten day notice/thirty day challenge requirement as a proposed rule. The initial petition in the unpromulgated rule case cited Section 120.56 as the basis for jurisdiction. At the final hearing on the consolidated cases, Martin Memorial was allowed to amend its petition in the unpromulgated rule case to include Section 120.535 as a basis for jurisdiction. The rule was filed with the Secretary of State on September 22, 1994, to become effective 20 days later.

At the request of Martin Memorial or by joint motions of the parties, hearings scheduled for November 1993, March 1994, May 1994, August 1994, and earlier in September 1994, were cancelled and rescheduled. At the September 26, 1994 hearing, HCA Medical Center and AHCA renewed their Motion to Dismiss, which is the subject of this Order.

Martin Memorial filed a Response to Joint Motion For Summary Recommended Order on October 26, 1994, with various depositions. A Reply was filed by AHCA and HCA Medical Center on November 7, 1994.

ISSUE

Whether the Petition in Case No. 93-4868 should be dismissed because the only disputed issue is the validity of the numeric need publication, which was not challenged timely, or within 30 days of publication.

FINDINGS OF FACT

1. The agency for Health Care Administration ("AHCA") published a numeric need for one additional adult inpatient cardiac catheterization ("cath") program in AHCA District 9. The notice was given in the February 5, 1993 issue of the Florida Administrative Weekly.

   
   

2. The fixed numeric need publication included the following statement:

   
   

   Any person who identifies any error in the fixed need pool numbers must advise the agency

   of the error within ten (10) days of publication

   of the number. If the agency concurs in the error, the fixed need pool number will be adjusted prior to or during the grace period for this cycle.

   Failure to notify the agency of the error during this ten day time period will result in no adjust- ment to the fixed need pool number of this cycle and a waiver of the person's right to raise the error at subsequent proceedings. Any other adjust- ments will be made in the first cycle subsequent

   to the identification of the error including those errors identified through administrative hearings or final judicial review.

   
   

   Any person whose substantial interest is affected by this action and who timely advised the agency of any error in the action has right to request an administrative hearing pursuant to Section 120.57, Florida Statutes. . . . All requests for hearings must be filed with the agency clerk within 30 days of this publication or the right to a hearing is waived.

   
   

3. On July 23, 1993, AHCA published its intent to award certificate of need ("CON") No. 7241 for the establishment of a District 9 adult inpatient cardiac cath program to HCA Services of Florida, Inc., d/b/a HCA Medical Center of Port St. Lucie ("HCA Medical Center").

   
   

4. Martin Memorial Medical Center, Inc. ("Martin Memorial") filed, on August 11, 1993, a challenge to the proposed issuance of CON 7241 to HCA Medical Center.

   
   

5. In February 1994, AHCA and HCA Medical Center filed a Joint Motion For Summary Recommended Order seeking dismissal of Martin Memorial's petition for challenging solely and untimely the fixed need pool. In a Memorandum in Opposition to the Joint Motion, Martin Memorial claimed that its Petition was not just a challenge to the fixed need pool, but was also based on the substantial adverse impact to Martin Memorial as a result of the approval of the CON to HCA Medical Center. The Joint Motion For Summary Recommended Order was denied in April 1994.

   
   

6. On May 26, 1994, Martin Memorial filed a petition seeking a determination of the validity of the unpromulgated rule statement which requires that AHCA be given notice of errors in a fixed need pool within 10 days of publication and that administrative challenges are waived if not filed within 30 days. The CON challenge and the unpromulgated rule challenge were ultimately consolidated.

   
   

7. On August 12, 1994, AHCA published the 10 day notice/30 day challenge requirements as a proposed rule, and filed it with the Secretary of State on September 22, 1994. No challenge was filed to the proposed rule.

   
   

8. In a Joint Prehearing stipulation for the 120.57 CON case (DOAH Case No. 93-4868), the parties agreed that:

   
   

   1. Medical Center timely filed its applica- tion for a new adult inpatient cardiac cath program in the spring 1993 batching cycle.

      The application purports to address a need for an additional program in AHCA District 9 for the July 1995 planning horizon.

   2. Medical Center complied with all conditions precedent to consideration of its application. This includes the requirements in Sections 408.037 and 408.039, Florida Statutes (1993), relating to letters of intent and application content.

   3. Under the particular circumstances of this case, when a numeric need for an additional program is weighed in conjunction with the other review criteria, Medical Center's application on balance satisfies the applicable statutory and rule review criteria and should be approved.

   4. Under the particular circumstances of this case, when zero numeric need for another program is weighed in conjunction with the other review criteria, Medical Center's application would not on balance satisfy the applicable statutory and rule review criteria, and should be denied.

      
      

9. At the final hearing, AHCA and HCA Medical Center renewed their motion for dismissal. Martin Memorial argued that HCA Medical Center had the burden of demonstrating the need for its services even if numeric need exists. While there is no dispute that this is generally a correct statement of the law, paragraphs 3 and 4 of the parties' Joint Prehearing Stipulation, in fact, make numeric need the only criterion at issue in this case.

   
   

10. In its Response of October 26, 1994, Martin Memorial asserted that AHCA made an error in the February 5, 1993 fixed need pool calculation, that Martin Memorial notified AHCA of the error in April 1993, and that AHCA published its preliminary intent to issue the CON (even though notified earlier of the error) in July 1993. Martin Memorial responds further that its agreement with the Prehearing Stipulation only means that ". . . it is undisputed that there is no numeric need . . .," and that HCA's application relies solely on numeric need to demonstrate need. Martin's explanation of the Joint Prehearing Stipulation is rejected as inconsistent with the wording of the Stipulation. See, Finding of Fact 8, supra.

    
    

11. Martin Memorial also alleges that there was no clear point of entry to challenge the fixed need pool upon which the need for HCA Medical Center's CON was based, until the preliminary issuance of the CON. Such contention is not well founded, as discussed in the conclusions of law.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction pursuant to Subsections 408.039(5) and 120.57(1), Florida Statutes.

    
    

13. By stipulation of the parties, the only and determinative legal issue in the 120.57 CON case is the validity of AHCA's publication of numeric need on February 5, 1993, although Martin Memorial's petition in this case was not filed until August 25, 1993.

    
    

14. Martin Memorial relies on St. Mary's Hospital v. DHRS, et. al., 13 FALR 2098, DOAH Case No. 89-5115 (F.O. 5/1/91), as support for the consideration of errors in a fixed need pool publication, in conjunction with a consolidated CON case. In St. Mary's, the Department published a fixed need pool on August 11, 1989, received timely notices of errors, revised its initial calculation, and published a revised fixed need pool on September 1, 1989. Challenges to the

    revised need publication were received on September 5 and 8, 1989. After the St. Mary's rule challenge was consolidated with CON cases from the same batching cycle, the parties litigated issues related to the accuracy of the fixed need pool, as well as the issuance of the CON. At the time St. Mary's was decided, the 10 days for notice/30 days for challenge provisions were included in the notice given with the fixed need publication, as in this case. This case is distinguishable from St. Mary's because here the fixed need pool was not timely challenged.

    
    

15. Martin Memorial also claimed not to have a clear point of entry until it was affected by the preliminary action on the CON.

    
    

16. Notice was given, as required, within a specified time period following a recognizable event in the CON process, allowed a prompt opportunity to challenge the determination made of that event, and gave the information necessary for the mechanics for filing a challenge. See, e.g., Florida League of Cities v. Administration Commission, 586 So.2d 397 (Fla. 1st DCA 1991); St. Joseph Hospital of Charlotte, Florida, Inc. v. HRS, 559 So.2d 595 (Fla. 1st DCA 1989); and Gulf Coast Home Health Service of Florida, Inc. v. HRS, 515 So.2d 1009 (Fla. 1st DCA 1987).

    
    

17. Martin Memorial's stipulation that a numeric need for an additional program weighed in conjunction with other review criteria should result in approval of HCA Medical Center's application and its failure to challenge timely the numeric need publication despite the clear point of entry provided, necessitate a dismissal of Case No. 93-4868.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Martin Memorial be DENIED.

DONE and ORDERED this 4th day of January, 1995, in Tallahassee, Florida.

ELEANOR M. HUNTER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4868

The parties did not file proposed findings of fact and, therefore, no rulings can be made, as required by Section 120.59(2), Florida Statutes.

COPIES FURNISHED:

Byron B. Mathews, Jr., Esquire Michael J. Weber, Esquire

201 South Biscayne Boulevard Suite 2200

Miami, Florida 33131

Richard A. Patterson, Esquire Senior Attorney

Agency for Health Care Administration

325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131

John Radey, Esquire Elizabeth McArthur, Esquire Jeffrey L. Frehn, Esquire

101 North Monroe Street, Suite 1000 Tallahassee, Florida 32302

R. S. Power, Agency Clerk

Agency for Health Care Administration Atrium Building, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Harold D. Lewis, Esquire The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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 ten days in which to submit written exceptions. Some agencies allow a larger period within 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: 93-004868CON

Orders for Case No: 93-004868CON