W-\4 0% STATE OF FLORIDA oar. AGENCY FOR HEALTH CARE ADMINISTRATION ~~! RENDITION NO.: AHCA-03 - Ow 4p“ FOF «GON LIFEMARK HOSPITALS OF FLORIDA, INC., d/b/a PALMETTO GENERAL HOSPITAL, Petitioner, _ DOAH CASE NO. 01-0357CON Emin vs. AHCA NO. CON9394 Cys AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent, and MIAMI BEACH HEALTHCARE GROUP, LTD., d/b/a AVENTURA HOSPITAL AND MEDICAL CENTER and MOUNT SINAI MEDICAL CENTER OF FLORIDA, INC., Intervenors. MOUNT SINAI MEDICAL CENTER OF FLORIDA, INC., Petitioner, vs. AGENCY FOR HEALTH CARE ADMINISTRATION and LIFEMARK HOSPITALS OF FLORIDA, INC., d/b/a PALMETTO GENERAL HOSPITAL, Respondents, MIAMI BEACH HEALTHCARE GROUP, LTD., d/b/a AVENTURA HOSPITAL AND MEDICAL CENTER, Petitioner, vs. AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent, and LIFEMARK HOSPITALS OF FLORIDA, INC., d/b/a PALMETTO GENERAL HOSPITAL, Intervenor. DOAH CASE NO. 01-0358CON AHCA CASE NO. 9394CON DOAH CASE NO. 01-0359CON AHCA CASE NO. 9395SCON FINAL ORDER é This cause was referred to the Division of Administrative Hearings and . to an Administrative Law Judge (ALJ) for a formal administrative hearing and the of a Recommended Order. The Recommended Order of April 14, 2003, is attached to this Final Order and incorporated herein by reference. RULING ON EXCEPTIONS This case concerns CON applications filed by Lifemark Hospitals of Florida, Inc., d/b/a Palmetto General Hospital (Palmetto) (CON Application 9394) and Miami Beach Healthcare Group, LTD., d/b/a Aventura Hospital and Medical Center (Aventura) (CON 9395). Mount Sinai Medical Center of Florida, Inc. (Mount Sinai) filed as an intervenor in opposition to the application of Palmetto. The applications sought to add open-heart surgery programs to their facilities in District 11. The Agency originally denied both applications. The applicants filed timely requests for formal administrative proceedings to challenge the denial of their applications. The Recommended Order recommended approval of both applications. THE AGENCY AND MOUNT SINAI’S JOINT EXCEPTIONS The Agency and Mount Sinai filed joint exceptions to findings of fact 20, 21, 63, 64, 69, and 85 in the Recommended Order. The Agency and Mount Sinai filed joint exceptions to conclusions of law 121, 123, and 126. These joint exceptions by the Agency and Mount Sinai to the above findings of fact are rejected because they all call for a reweighing of the evidence presented to the ALJ and because they are supported by competent, substantial evidence in the record. The exceptions to findings of fact 20 and 21 are based on the ALJ’s review of the building plans submitted by Palmetto. The ALJ’s finding that the differences between the master facility plan and the open-heart surgery plans are insignificant is based on factual determinations related to the use and function of the space. As such these findings of fact cannot be reweighed by the Agency to reach a different finding of fact. See generally Section 120.57(1)(), Fla. Stat. (providing in pertinent part that “(t)he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record...that the findings of fact were not based upon competent substantial evidence); Heifetz v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla, 1985)(holding that an agency “may not reject the hearing officer’s finding (of fact) unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”). The joint exception to finding of fact 63 refers to a map used during the final hearing and a smaller version of that map that was to be submitted into the record. However, neither the large nor the smaller version of this map was submitted into evidence. Consequently, the ALJ’s finding of fact is based on the evidence available to her and the joint exceptions must be rejected because the ALJ’s finding is based on competent, substantial evidence in the record. The Agency may not reweigh the evidence in the record and no new evidence may be considered in this Final Order. This joint exception is rejected. See generally Section 120.57(1)(I), Fla. Stat. (providing in pertinent part that “(t)he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record. ..that the findings of fact were not based upon competent substantial evidence); Heifetz v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla, 1985)(holding that an agency “may not reject the hearing officer’s finding (of fact) unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”). The Agency and Mount Sinai filed a joint exception to finding of fact 64, in which the ALJ finds that the existing open-heart surgery programs in District 11 are inappropriately dispersed geographically to serve the population as it is distributed throughout Dade County. The joint exception argues that this is actually a conclusion of law. However, there is competent, substantial evidence in the record on which the ALJ based this finding of fact. The Agency may not reweigh the evidence and find otherwise. See generally Section 120.57(1)(I), Fla. Stat. (providing in pertinent part that “(t)he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record...that the findings of fact were not based upon competent substantial evidence); Heifetz v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla, 1985)(holding that an agency “may not reject the hearing officer’s finding (of fact) unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”). The Agency and Mount Sinai filed a joint exception to finding of fact 69. The exception argues that the open-heart program at Kendall could rise above 300, but for the approval of Aventura and Palmetto. The ALJ’s finding of fact is that whether or not these applications are approved, the programs at Kendall and South Miami will continue to operate below the objective set by the open-heart rule. This finding of fact is based on competent, substantial evidence in the record and the Agency may not reweigh that evidence to reach a different finding of fact. See generally Section 120.57(1)(1), Fla. Stat. (providing in pertinent part that “(t)he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record...that the findings of fact were not based upon competent substantial evidence), Heifetz v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla, 1985)(holding that an agency “may not reject the hearing officer’s finding (of fact) unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”). The Agency and Mount Sinai filed a joint exception to finding of fact 85, which finds that the maldistribution of open-heart programs in Dade County as compared to the areas of significant population growth is a not normal circumstance. The exception argues that this is actually a conclusion of law. The determination of what constitutes a not normal circumstance is factually driven; whether the facts warrant awarding a CON is a conclusion of law. Further, there is no set definition of what a not normal circumstance is, and this must be determined in each case depending on the facts adduced at hearing. The analysis of the issue of not normal circumstances has been set out in Florida case law. See Health Care and Retirement Corporation of America v. Department of Health and Rehabilitative Services, 516 So. 2d 292 ( Fla. 1* DCA 1987); Humana, Inc. v. Department of Health and Rehabilitative Services, 492 So. 2d 928 (Fla. 4" DCA 1986); and Federal Property Management Corp. v. Department of Health and Rehabilitative Services, 482 So. 2d 475 (Fla. 1 DCA 1986). Therefore, the ALJ can make a finding of fact that a particular fact or factual circumstance is a not normal circumstance. However, whether this fact finding of a not normal circumstance justifies the award of a CON is a conclusion of law and within the permissive range of the Agency’s discretion. Thus, finding of fact 85 is a true finding of fact and may not be altered by the Agency unless there is no competent, substantial evidence in the record to support it. Such evidence is in the record and this exception is rejected. The Agency also notes that this exception makes no reference to the second part of finding of fact 85, which is that the commitment to the closure of an existing program is also a not normal circumstance. There is competent, substantial evidence in the record from which the ALJ could have made this finding and the Agency, therefore, may not reweigh the evidence and reach a different finding of fact. See generally Section 120.57(1)(1), Fla. Stat. (providing in pertinent part that “(t)he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record...that the findings of fact were not based upon competent substantial evidence); Heifetz v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla, 1985)(holding that an agency “may not reject the hearing officer’s finding (of fact) unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”). The Agency and Mount Sinai filed a joint exception to conclusion of law 121, which relates to the geographic maldistribution of open-heart providers. This exception presents other evidence from the final hearing to show that this conclusion is correct. However, based on findings of fact which are accepted, the Agency cannot reach a different conclusion of law that would be as or more reasonable than that reached by the ALJ. See Section 120.57(1)(), Florida Statutes. This exception is rejected. The Agency and Mount Sinai filed a joint exception to conclusion of law 123, which states that the approval of two applicants in the same district at the same time is not shown to impede the development of either open-heart program. This conclusion of law is based on accepted findings of fact and the Agency cannot come to a different conclusion of law that is as or more reasonable than that of the ALJ. See Section 120.57(1)(), Florida Statutes. This exception is rejected. The Agency and Mount Sinai filed a joint exception to conclusion of law 126, which states that the changes in the floor plan submitted by Palmetto are not substantial. The exception argues that this is incorrect. However, as noted above in relation to the exception to findings of fact 20 and 21, there is competent, substantial evidence in the record to support the finding of fact on this issue. Therefore, the Agency cannot come to a different conclusion of law that is as or more reasonable than that of the ALJ. See Section 120.57(1)(), Florida Statutes. This exception is rejected. AVENTURA’S EXCEPTIONS Aventura files exceptions to findings of fact 60, 61, 109, and 110. Aventura files exceptions to conclusion of law #124. Aventura’s exceptions to the above findings of fact are rejected because they would require a reweighing of the evidence considered by the ALJ. There is competent, substantial evidence to support these findings of fact and the Agency may not reject them and make substituted findings of fact. See generally Section 120.57(1)(1), Fla. Stat. (providing in pertinent part that “(t)he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record...that the findings of fact were not based upon competent substantial evidence); Heifetz_v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla, 1985)(holding that an agency “may not reject the hearing officer’s finding (of fact) unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”). Aventura’s exception to conclusion of law 124 is rejected because it is based on accepted findings of fact and the Agency cannot come to a different conclusion of law that is as or more reasonable as that of the ALJ. See Section 120.57(1)(), Florida Statutes. ) PALMETTO’S EXCEPTIONS Palmetto filed exceptions to findings of fact 61, 85, 106, and 111. Palmetto filed an exception to conclusion of law 128. Palmetto’s exceptions to the above findings of fact are rejected because they would require the Agency to reweigh the evidence submitted at the final hearing and make substituted findings of fact. These findings of fact are supported by competent, substantial evidence in the record. See generally Section 120.57(1)(1), Fla. Stat. (providing in pertinent part that “(t)he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record...that the findings of fact were not based upon competent substantial evidence); Heifetz_v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla, 1985)(holding that an agency “may not reject the hearing officer’s finding (of fact) unless there is no competent, substantial evidence from which the finding could reasonably be inferred.”). Palmetto’s exception to conclusion of law 128 is rejected because it is based on accepted findings of fact and the Agency is unable to come to a different conclusion of law that is as or more reasonable as that of the ALJ. See Section 120.57(1)(), Florida Statutes. THE AGENCY’S AND MOUNT SINAI’S JOINT MOTION FOR REMAND The Agency and Mount Sinai filed a Joint Motion for Remand. The motion argued that the ALJ failed to rule on certain evidence presented and failed to make specific findings on certain evidence. An ALJ is not required to rule on all evidence presented and an ALJ cannot be required to make specific rulings on evidence. The motion is also essentially a reargument of the evidence presented at hearing. All of the evidence discussed in this motion was before the ALJ at the Final Hearing and may not be reweighed by the Agency. The motion is denied. FINDINGS OF FACT The Agency adopts the Findings of Fact set forth in the Recommended Order. CONCLUSIONS OF LAW The Agency adopts the Conclusions of Law set forth in the Recommended Order. IT IS THEREFORE ADJUDGED THAT: Based on the specific facts and circumstances of this case, Palmetto’s CON application 9394 is granted. Based on the specific facts and circumstances of this case, Aventura’s CON Application 9395 is granted. The Joint Motion for Remand is denied. th. DONE and ORDERED this i) day of Saambee—_, 2003, in Tallahassee, Florida. } , ' \ A | br iat A A M. ME iN RHO. WS, M.D., SECRETARY Agency for Health Care Administration 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 THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG WITH THE FILING FEE PRESCRIBED BY LAW, WITH 10 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 THE RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by US. Mail, or by the method indicated, to the persons named below on this “F day of , 2003. Lon» Lealand L. McCharen, Agerfcy Agency for Health Care Administration 2727 Mahan Drive, MS #3 ‘ Tallahassee, FL 32308 COPIES FURNISHED TO: Eleanor M. Hunter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 Stephen A. Ecenia, Esquire David Prescott, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 C. Gary Williams, Esquire Michael J. Glazer, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 11 Geoffery D. Smith, Esquire Sandra L. Schoonover, Esquire Blank, Meenan & Smith, P.A. 204 South Monroe Street Post Office Box 11068 Tallahassee, FL 32302-3068 Elizabeth Dudek Deputy Secretary Karen Rivera Health Services and Facilities Consultant Supervisor, YO 26 Wendy Adams Facilities Intake 12

Docket for Case No: 01-000358CON

Orders for Case No: 01-000358CON