Petitioner: RHA/FL OPERATIONS, INC.
Respondent: AGENCY FOR HEALTH CARE ADMINISTRATION
Judges: DAVID M. MALONEY
Agency: Agency for Health Care Administration
Locations: Tallahassee, Florida
Filed: Aug. 28, 1996
Status: Closed
Recommended Order on Monday, June 9, 1997.
Latest Update: Jul. 02, 2004
Summary: Whether the applications for certificate of need numbers 8380, 8381, 8382 and 8383, filed by Petitioners RHA/Florida Operations, Inc., Care First, Inc., Home Health Integrated Health Services of Florida, Inc., ("IHS of Florida,") and Putnam Home Health Services, Inc., meet, on balance, the statutory and rule criteria required for approval?Even though no access problems, four home health agency Certificate of Need (CON) applicants established need for Medicare-certified home health agencies in Di
Summary: Whether the applications for certificate of need numbers 8380, 8381, 8382 and 8383, filed by Petitioners RHA/Florida Operations, Inc., Care First, Inc., Home Health Integrated Health Services of Florida, Inc., ("IHS of Florida,") and Putnam Home Health Services, Inc., meet, on balance, the statutory and rule criteria required for approval?Even though no access problems, four home health agency Certificate of Need (CON) applicants established need for Medicare-certified home health agencies in District two.
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lo. 4.97
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION P&C /2 oF
CARE FIRST, INC., et al., ee
a ULEbg
Petitioners,
vs. DOAH CASES NO. 96-4053
through 96-4056
AGENCY FOR HEALTH CARE RENDITION NO.: AHCA-97-937-FOF-CON
ADMINISTRATION, . j
DMM-Closed 4 oa
Respondent. ”
/ ,
Ag
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. he: 2,
oy
Administrative Law Judge (ALJ) assigned by the Division of Administrative Hearings
(DOAH) in the above-styled cases submitted a Recommended Order to the Agency for Health
Care Administration (AHCA). The Recommended Order, entered June 9, 1997 by ALJ David
M. Maloney, is incorporated by reference except as otherwise indicated.
RULING ON EXCEPTIONS FILED BY RESPONDENT
Respondent excepts to various findings of fact made by the ALJ as to three of the four
Petitioners herein: that is, Care First, Inc., Putnam Home Health, Inc., and RHA/Florida
Operations, Inc. No exceptions were filed as to Petitioner Home Health Integrated Health
Services of Florida, Inc. Respondent’s exceptions are ruled upon as follows.
Care Fi
As to Care First, Respondent’s exceptions to paragraphs 16, 17, 20, 21, 23, 26, 27,
and 30 are sustained. The ALJ’s findings contained in those paragraphs are simply not
supported by competent, substantial evidence in the record. See, DeGroot v. Sheffield, 95
So.2d 912 (Fla. 1957); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. Ist
DCA 1985).
Heifetz states that factual issues susceptible of ordinary methods of proof that are not
infused with policy considerations are the prerogative of the hearing officer (now ALJ) as the
finder of fact; accordingly, the ALJ may draw reasonable factual inferences from the evidence.
475 So.2d at 1281. The inferences drawn in paragraphs 16, 17, 20, 21, 23, 27 and 30 have
no reasonable basis in the record. Further, the inferences drawn in paragraphs 26 and 30 are
not only factual inferences, but also conclusions of law that Care First’s proposal is financially
feasible. See, Section 408.035(1)(i), F.S.
At the time of the administrative hearing in December, 1996, Care First was not the
thriving home health provider represented in its application for CON 8381. Instead, it had
ceased all operations, had no operating income, and its assets, if any, were negligible. Rather
than “continuing to grow” as its application asserted, Care First would be starting over. The
assumptions underlying its projected visits and, thus, projected revenues, had no basis by the
time of the hearing. Further, the record of the hearing contains no substantial, competent
evidence of the “referral network” which supposedly “remains in place” and which would
presumably support Care First’s proposal. By the time of the hearing, Care First’s own
financial feasibility as an entity was questionable, and there was no factual basis for a finding
of its ability to follow through with the proposal.
Putnam
As to Putnam, Respondent’s exception to paragraph 185 is sustained. There was no
substantial, competent evidence from which an inference could be drawn that non-rural Bay
‘County is “underserved” in terms of home health services. Furthermore, the ALJ’s finding of
fact as to Bay County is infused with policy considerations as to what constitutes an
“underserved” area. The remaining exceptions as to Putnam are denied. See, Heifetz, supra.
RHA/Florida Operations
As to RHA/Florida Operations, Respondent’s exceptions mostly concern the absence of
any findings in the Recommended Order as to reasonableness of projected visits. While this
omission in the Recommended Order is curious, the Agency declines to formulate its own
findings of fact in this Final Order. The exception as to paragraph 150 is granted, as there are
fourteen (14) counties in District 2. The exceptions are otherwise denied. Heifetz, supra.
FINDINGS OF FACT
The Agency adopts and incorporates by reference the findings of fact set forth in the
Recommended Order except where inconsistent with the ruling on exceptions.
CONCLUSIONS OF LAW
The Agency hereby adopts and incorporates by reference the conclusions of law set
forth in the Recommended Order except where inconsistent with the ruling on exceptions.
In this particular case, it bears noting that the purpose of a formal administrative
hearing is to provide the agency whose preliminary action is in question a chance to reconsider
its decision. Capeletti Bros., Inc. v. State Dept. of General Services, 432 So.2d 1359.
Relatedly, the interpretation of a statute rendered by an agency charged with its
implementation is entitled to great weight. Shel] Harbor Group, Inc, v, D.P.R., 487 So.2d
1141 (Fla. 1st DCA 1986); D.E.R. v. Goldring, 477 So.2d 532 (Fla. Ist DCA 1985).
An applicant for a certificate of need bears the burden of proving, by a preponderance
of the evidence, compliance with applicable statutory and rule criteria. Boca Raton Artificial
Kidney Center v. Department of Health and Rehabilitative Services, 475 So.2d 260 (Fla. Ist
DCA 1985). Care First did not meet that burden in this case.
Based upon the foregoing, it is
ADJUDGED, that the application of RHA/Florida Operations, Inc. for CON 8380, the
application of Home Health Integrated Health Services of Florida, Inc. for CON 8382, and the
application of Putnam Home Health, Inc. for CON 8383 be approved. The application of
Care First, Inc. for CON 8381 is denied.
DONE AND ORDERED this 11th day of December, 1997.
Qukdr te Qeh
DOU SM. COOK
Director
Agency for Health Care Administration
COPIES FURNISHED:
W. David Watkins, Esquire
Watkins, Tomasello & Caleen
1315 East Lafayette Street, Suite B
Tallahassee, Florida 32301
Theodore E. Mack, Esquire
Powell & Mack
803 North Calhoun Street
Tallahassee, Florida 32303
Mark A. Emanuele, Esquire
Panza, Maurer
3600 North Federal Highway
Ft. Lauderdale, Florida 33308
‘ Paul R. Amundsen, Esquire
Amundsen & Moore
502 East Park Avenue
Tallahassee, Florida 32301
Richard M. Ellis, Senior Attorney
Agency for Health Care Administration
2727 Mahan Drive, Building 3
Tallahassee, Florida 32308
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 the Agency for
Health Care Administration, and a second copy along with the filing fee as prescribed by law,
with the First District Court of Appeal or the District Court of Appeal where the party resides.
Review proceedings shall be conducted in accordance with the Florida Rules of Appellate
Procedure. The notice of appeal must be filed within 30 days of rendition of the order to be
reviewed.
Docket for Case No: 96-004056CON
Issue Date |
Proceedings |
Jul. 02, 2004 |
Amended Final Order filed.
|
Jul. 02, 2004 |
Final Order filed.
|
Jul. 02, 1997 |
(From T. Mack) Notice of Change of Address filed. |
Jun. 11, 1997 |
Order Correcting Recommended Order.
|
Jun. 11, 1997 |
Order Correcting Recommended Order sent out. |
Jun. 09, 1997 |
Recommended Order sent out. CASE CLOSED. Hearing held 12/02-06/96.
|
Jun. 09, 1997 |
Recommended Order sent out. CASE CLOSED. Hearing held 12/02-06/96.
|
Jun. 09, 1997 |
Recommended Order sent out. CASE CLOSED. Hearing held 12/02-06/96.
|
Feb. 19, 1997 |
Petitioner, Care First, Inc.`s Proposed Recommended Order filed. |
Feb. 19, 1997 |
Putnam Home Health Care, Inc.`s Proposed Recommended Order filed. |
Feb. 19, 1997 |
Notice of Filing Respondent`s Respondent`s Proposed Recommended Order; Respondent`s Proposed Recommended Order filed. |
Feb. 19, 1997 |
Home Health Integrated Health Services Inc.`s Proposed Recommended Order; (RHA) Proposed Recommended Order filed. |
Feb. 11, 1997 |
Order sent out. (PRO's due by 2/19/97) |
Feb. 07, 1997 |
(Petitioner) Motion for Extension of Time (filed via facsimile). |
Jan. 28, 1997 |
Notice of Filing; (Volumes 6-12 of 12) DOAH Court Reporter Final Hearing Transcript filed. |
Jan. 16, 1997 |
Notice of Filing; (5 Volumes) DOAH Court Reporter Final Hearing Transcript filed. |
Dec. 02, 1996 |
CASE STATUS: Hearing Held. |
Dec. 02, 1996 |
CASE STATUS: Hearing Held. |
Nov. 26, 1996 |
(Joint) Prehearing Stipulation filed. |
Nov. 25, 1996 |
Care First`s Motion for Protective Order; Response to Motion to compel Deposition of Care First, Inc. and Alternative Motion for Continuance; and Motion for Costs and Attorney`s Fees filed. |
Nov. 25, 1996 |
Order sent out. (motion of AHCA is denied; Putnam`s prayer for costs & attorney`s fees is denied) |
Nov. 22, 1996 |
Respondent`s Motion for Official Recognition of 42 C.F.R. Part 484 filed. |
Nov. 22, 1996 |
Respondent`s Reply to Putnam`s Objection to AHCA`s Emergency Motion to Compel or for a Continuance Objection to Hearing and Prayer for Costs and Attorneys Fees (filed via facsimile). |
Nov. 22, 1996 |
(From T. Mack) Notice of Taking Deposition Duces Tecum filed. |
Nov. 22, 1996 |
Putnam`s Objection to AHCA`s Emergency Motion to Compel or for a Continuance, Objection to Hearing, and Prayer for Costs and Attorneys Fees filed. |
Nov. 22, 1996 |
(AHCA) Notice of Hearing (filed via facsimile). |
Nov. 21, 1996 |
(Respondent) Notice of Deposition Duces Tecum of Care First, Inc. by Freddie Franklin filed. |
Nov. 21, 1996 |
(Respondent) Emergency Motion to Compel Deposition of Care First, Inc. by Freddie Franklin; and Alternative Motion for Continuance filed. |
Nov. 20, 1996 |
Order sent out. (motions for protective order are granted; motions to compel and for continuance to amend pre-trial order are denied w/exceptions) |
Nov. 20, 1996 |
Home Health Integrated Health Services of Florida, Inc.`s Amended Exhibit List; Petitioner, Home Health Integrated Health Services, Inc.`s Witness List; (filed via facsimile). |
Nov. 19, 1996 |
Putnam Home Health Care, Inc.`s Response in Opposition to IHS`s Motion to Continue and Motion to Amend Pretrial Order; Putnam Home Health Care, Inc.`s Response in Opposition to IHS`s Motion to Compel and Demand for Costs and Attorney Fees filed. |
Nov. 18, 1996 |
Memorandum to DMM from P. Amundsen Re: Prehearing Stipulation filed. |
Nov. 18, 1996 |
(Respondent) Addendum to Respondent`s Exhibit List filed. |
Nov. 18, 1996 |
(Home Health) Re-Notice of Telephonic Hearing (filed via facsimile). |
Nov. 18, 1996 |
Home Health Integrated Health Services of Florida, Inc.`s Exhibit List (filed via facsimile). |
Nov. 15, 1996 |
Exhibit List of Care First, Inc.; Witness List of Care First, Inc.; Notice of Taking Deposition Duces Tecum; RHA/Florida Operations, Inc.`s Witness and Exhibit List; Putnam Home Health Care, Inc.`s Witness and Exhibit List filed. |
Nov. 15, 1996 |
(Home Health) Notice of Telephonic Hearing; Home Health Integrated Health Services of Florida, Inc.`s Motion to Compel (filed via facsimile). |
Nov. 15, 1996 |
Respondent`s Compliance With Prehearing Order filed. |
Nov. 14, 1996 |
Letter to DMM from Mark Emanuele (RE: response to request for continuance and motion to amend pretrial order); Letter to DMM from Mark Emanuele (RE: response to amended motion for enlargement of time) (filed via facsimile). |
Nov. 14, 1996 |
Respondent`s Statement Opposing Motions for Protective Order and Supporting IHS`s Motion to Continue and Amend Pretrial Order filed. |
Nov. 14, 1996 |
Petitioner, Home Health Integrated Health Services, Inc.`s Witness List (filed via facsimile). |
Nov. 13, 1996 |
Home Health Integrated Health Services of Florida, Inc.`s Motion to Continue and Motion to Amend Pretrial Order (filed via facsimile). |
Nov. 13, 1996 |
(RHA) Motion for Protective Order (filed via facsimile). |
Nov. 12, 1996 |
Putnam Home Health Care, Inc.`s Motion for Protective Order filed. |
Nov. 12, 1996 |
Home Health Integrated Health Services, Inc.`s Motion for Enlargement of Time to Exchange Exhibit and Witness Lists; (Home Health Integrated) Notice of Conflict (filed via facsimile). |
Nov. 12, 1996 |
Letter to EMH from Mark Emanuele (RE: follow up to IHS`s motion for enlargement of time to exchange exhibits) (filed via facsimile). |
Nov. 12, 1996 |
Care First, Inc.`s Motion for Protective Order filed. |
Oct. 18, 1996 |
Home Health Integrated Health Services of Florida, Inc.`s First Request for Production of Documents to Care First, Inc. filed. |
Oct. 18, 1996 |
Home Health Integrated Health Services of Florida, Inc.'s First Request for Production of Documents to RHA/Florida Operations; Home Health Integrated Health Services of Florida, Inc.'s First Request for Production of Documents to Putnam Home Health Care |
Oct. 11, 1996 |
Order Continuing and Rescheduling Formal Hearing sent out. (hearing reset for Dec. 2-6, 1996; 10:00am; Tallahassee) |
Oct. 09, 1996 |
(Home Health) Notice of Telephonic Hearing (filed via facsimile). |
Oct. 09, 1996 |
Putnam Home Health Care, Inc.`s Motion for Continuance filed. |
Oct. 07, 1996 |
Putnam Home Health Care, Inc.`s Motion for Continuance (filed via facsimile). |
Oct. 03, 1996 |
Home Health Integrated Health Services of Florida, Inc.`s Motion to Continue filed. |
Oct. 02, 1996 |
Amended Notice of Hearing sent out. (hearing set for Oct. 29 - Nov. 1& 4, 1996; 10:00am; Tallahassee) |
Oct. 01, 1996 |
(RHA) Request for Corrected Notice of Hearing filed. |
Sep. 26, 1996 |
(Respondent) Notice of Unavailability filed. |
Sep. 26, 1996 |
Amended Notice of Hearing sent out. (hearing set for Dec. 9-13, 1996;10:00am; Tallahassee) |
Sep. 25, 1996 |
Notice of Hearing sent out. (hearing set for Dec. 9-13, 1996; 10:00am; Tallahassee) |
Sep. 23, 1996 |
(From M. Emanuele) Notice of Unavailability filed. |
Sep. 20, 1996 |
Joint Response to Prehearing Order filed. |
Sep. 05, 1996 |
Prehearing Order and Order of Consolidation sent out. (Consolidated cases are: 96-4053, 96-4054, 96-4055 & 96-4056) |
Aug. 30, 1996 |
Notification card sent out. |
Aug. 28, 1996 |
Notice of Related Petitions (96-4053, 96-4054, 96-4055, 96-4056); Notice; Petition for Formal Administrative Hearing filed. |
Orders for Case No: 96-004056CON
Issue Date |
Document |
Summary |
Mar. 11, 1998 |
Agency Miscellaneous
|
|
Dec. 11, 1997 |
Agency Final Order
|
|
Jun. 09, 1997 |
Recommended Order
|
Even though no access problems, four home health agency Certificate of Need (CON) applicants established need for Medicare-certified home health agencies in District two.
|