STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION J VARIETY CHILDREN’S HOSPITAL, INC. d/b/a MIAMI CHILDREN’S HOSPITAL, Petitioner, vs. CASE NO. 2003001348 < i DOAH NO. 03- 1160cON,D/" at AGENCY FOR HEALTH CARE : an ADMINISTRATION, = Respondent. ~ = / sat FINAL ORDER THIS CAUSE CAME before me for the purpose of issuing a final agency order, upon an order of Administrative Law Judge David M. Maloney, attached hereto, dismissing the case, it appearing from the Petitioner's Notice of Voluntary Dismissal, attached hereto, that there are no disputed issues of fact. FINDINGS OF FACT 1. Petitioner filed a Petition for Formal Administrative Hearing on February 21, 2003, DOAH No. 03-1160 CON, opposing any issuance of a potential CON by the Agency to South Miami Hospital, CON #9623, attached hereto. 2. The Agency had already denied South Miami Hospital’s CON #9623. South Miami Hospital has a case pending with the Division of Administrative Hearings, Case No. 03-0343CON, challenging the Agency’s denial. 3. Subsequently, the Petitioner filed a Notice of Voluntary Dismissal in the above-styled case, and filed a Petition for Leave to Intervene in DOAH Case No. 03-0343CON, attached hereto, which was granted on April 22, 2003. 4. Administrative Law Judge Maloney entered the Order Closing File on the above-styled case on April 22, 2003. 5. The Agency hereby adopts and incorporates by reference the Notice of Voluntary Dismissal and Order Closing File. 6. There are no remaining disputed issues of fact or law. CONCLUSIONS OF LAW 1. The Agency for Health Care Administration has jurisdiction over the parties and subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes. 2. The Petitioner filed a Notice of Voluntary Dismissal, removing grounds for further proceedings. Based on the foregoing, it is ADJUDGED THAT: 1. The above-styled case, DOAH No. 03-1160 CON, CON #9623 is dismissed. 2. The issue is moot. DONE and ORDERED this } day of , 2003, in Tallahassee, Leon County, Florida. 4 Rhonda M. Medows, a, Secretary Agency for Health Care Administration 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 AHCA, AND A SECOND COPY, ALONG WITH THE FILING FEES 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 RULES OR APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Frank P. Rainer, Esquire Sternstein, Rainer & Clarke, P.A. 101 North Gadsden Street Tallahassee, FL 32301-7606 David M. Maloney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Tom R. Moore, Esq., Senior Attorney Agency for Health Care Administration (Interoffice Mail) Elizabeth Dudek, Deputy Secretary Agency for Health Care Administration (Interoffice Mail) Wendy Adams, Regulatory Consultant Agency for Health Care Administration (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished U.S. mail on this ae) day or (Ligue 2003 to the above- named persons. ( J (Dube fp Ur (oe is ion) fe Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS RECE! VED GENERAL COUNSEL APR 2 3 2003 SOUTH MIAMI HOSPITAL, INC. Agency for Health Ca tat . Petitioner, re Administration VS. DOAH CASE No. 03-1160CON AGENCY FOR HEALTH CARE ADMINISTRATION Respondent. / NOTICE OF VOLUNTARY DISMISSAL Petitioner, VARIETY CHILDREN’S HOSPITAL, by undersigned counsel hereby voluntarily dismisses it Petition in the above styled proceeding, without prejudice. sk RESPECTFULLY SUBMITTED on this & / day of April, 2003. tank P. Rainer, Fla. Bar #436518 Gary J. Clarke, Fla. Bar # 864498 Sternstein, Rainer & Clarke, P.A. 101 N. Gadsden Street Tallahassee, Florida 32301 850.577.6557 FAX 850. 577-6599 Counsel for Variety Children’s Hospital d/b/a Miami Children’s Hospital CERTIFICATE OF SERVICE I CERTIFY that the the foregoing Notice of Voluntary Dismissal was furnished to: Robert A. Weiss (by U.S. Mail) PARKER, HUDSON, RAINER & DOBBS, LLP The Perkins House, Suite 200 118 N. Gadsden Street Tallahassee, FL 32301 Tom R. Moore, Esq. (by U.S. Mail) Senior Attorney Agency for Health Care Administration 2727 Mahan Drive Tallahassee FL 32308 oo on this 2/~™ day of April, 2003. P. Rainer, Esquire RECEIVED STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GENERAL COUNSEL APR 23 2003 Agency for Health Car ine P SOUTH MIAMI HOSPITAL, INC. e Administration Petitioner, vs. DOAH CASE No. 03-0343CON AGENCY FOR HEALTH CARE AHCA CON No. 9623 ADMINISTRATION Respondent. PETITION BY MIAMI CHILDREN’S HOSPITAL FOR LEAVE TO INTERVENE Petitioner, VARIETY CHILDREN’S HOSPITAL, d/b/a MIAMI CHILDREN’S HOSPITAL, ("Petitioner"), through counsel and pursuant to Sections 120.569, 120.57(1) and § 408.039(5)(b) , Fla. Stat. (2000), and Chapters 59-1, 59C-1 and 28-5, Florida Adrninistrative Code, hereby petitions, pursuant to Rule 28-106.205, F.A.C. for leave to intervene in the above- styled administrative proceeding. In support of this petition, Petitioner states: 1. The name and address of the affected state agency is the Agency for Health Care Administration, Bureau of Certificate of Need, 2727 Mahan Drive, Tallahassee, Florida. The Agency file number in this case is CON No. 9623. 2. The name and address of the Petitioner is VARIETY CHILDREN’S HOSPITAL, d/b/a MIAMI CHILDREN’S HOSPITAL, 3100 62%? Avenue, Miami, Florida 33155. Petitioner is an existing Hospital specializing in providing care to neonates and children, and is located in AHCA Area 11. 3. Petitioner received a notice of the litigation of the denial of South Miami Hospital’s application to convert 6 level II NICU beds to 6 level III NICU beds, in the AHCA Area 11, which notice appeared in the Florida Administrative Weekly, Volume 29, No.5, dated January 31, 2001, at page 494. As a result of said notice, Petitioner was informed that its substantial interests would be affected. 4. The name and address of Respondent is AHCA, at the address of 2727 Mahan Drive, Tallahassee, FL 32308. The Agency’s file number for this proceeding is CON Application No. 9623. 5. The name and address of the CON applicant Respondent is South Miami Hospital, Inc. ("SMH") whose address is 6200 S.W. 73" Street, South Miami, Florida 33143. 6. Petitioner is a substantially affected party, and its substantial interests are subject to determination in this case for the following reasons: a) Petitioner is an existing health care facility in the same district and health care service area proposed to be served by South Miami Hospital. Petitioner has an established neonatal intensive care unit, which includes, Level III beds which will be substantially affected by the issuance of CON 9623 by AHCA to South Miami Hospital. Consequently, Petitioner has standing in this proceeding pursuant to §408.039(5)(b), Florida Statutes (2001). b) The approval by Respondent of South Miami Hospital’s application (if granted through settlement or an administrative proceeding) will result in unnecessary duplication of services currently being provided by Petitioner and other health care facilities in Dade County, in AHCA Area 11, Florida. Such duplication of services will result in increased costs to consumers of neonatal intensive services (Level III beds), in Dade County, AHCA Area 11, Florida, and a reduction in the overall quality of services provided in the County. c) Further, the unnecessary duplication of services attendant to approval by Respondent of South Miami Hospital's application will result in decreased utilization at Petitioner's facility, as well as the other health care facilities providing similar services in Dade County, AHCA Area 11, and, consequently would adversely affect the financial condition of Petitioner and such other providers, which will ultimately increase costs to the consumers of such health care services. d) The approval by Respondent of South Miami Hospital's application will adversely affect the availability of qualified personnel at Petitioner's facility and thus have a negative effect on Petitioner's ability to attract and maintain staff at its facility, and ability to provide quality services. e) As one to the designated tertiary services, Level III NICU beds are recognized as being granted to a limited number of hospitals and concentrated in a limited number of hospitals. Miami Children’s has been previously recognized by health planning decisions under the Health Facility and Services Development Act as one of those hospitals in District 11 in which Level III NICU beds will be granted and concentrated. In reliance of the legislative intent expressed in the Health Facility and Services Development Act (i,e. concentration and limitaion), Miami Children’s has made substantial economic, program, clinical, health manpower, operational and community investments and commitments. A grant of CON 9623 to South Miami would result in the dilution and duplication of such reasonable investment backed expectations of Miami Children’s. A decision granting Level HI NICU beds to South Miami would be contrary to legislative intent, existing statute, regulations and adjuratory decisions. 7. This proceeding contains disputed issues of material fact, including but not limited to the following: a) Whether there is a need for South Miami Hospital’s proposed conversion of Level II NICU beds to Level III beds. b) Whether South Miami Hospital's CON Application complies with all statutory, regulatory and non-rule policy criteria related to the issuance of a Certificate of Need for NICU beds. c) Whether South Miami Hospital's proposed program . will result in unnecessary duplication of services, under-utilization of existing services, increased health care costs, and diminished quality of service to the residents of Dade County and Area 11. d) Those matters set forth in the State Agency Action Report related to South Miami Hospital's application. 8. Miami Children states that (1) it has standing to participate in this proceeding, and (2) after a balanced review of all the review criteria contained in the Health Facility and Service Development Act, the decision in the SAAR to deny CON Application No. 9623 will be upheld. The statutes and rules which support such statement of ultimate fact are: 408.035, 408.037 and 408.039, Florida Statutes and Chapter 59C, F.A.C. COUNSEL CONFERENCE CERTIFICATE The undersigned counsel has contacted the counsel for the other parties and reports the following as to their positions as to this petition: a. Counsel for AHCA and Public Health Trust have no objection to the granting of this petition and intervention. b. Counsel for South Miami Hospital has no objection to the granting of intervention subject to proof of standing at the final heaing. WHEREFORE, VARIETY CHILDREN’S HOSPITAL d/b/a MIAMI CHILDREN’S HOSPITAL, requests the following relief: A. That it be granted leave to intervene in the above styled administrative proceeding; and . B. That a Recommended Order be entered by the Hearing Officer recommending denial of a Certificate of Need to Respondent, SOUTH MIAMI HOSPITAL, and rejecting its request io convert six Level II NICU beds to Level II NICU beds in Dade County, Florida, RESPECTFULLY SUBMITTED on this OPT day of April, 2003. rank P. Rainer, Fla.Bar #436518 Gary J. Clarke, Fla. Bar # 864498 Sternstein, Rainer & Clarke, P.A. 101 N. Gadsden Street Tallahassee, Florida 32301 850.577.6557 FAX 850. 577-6599 Counsel for Variety Children’s Hospital d/b/a Miami Children’s Hospital CERTIFICATE OF SERVICE I CERTIFY that the the foregoing PETITION LEAVE TO INTERVENE was furnished to: Robert A. Weiss (by U.S. Mail) PARKER, HUDSON, RAINER & DOBBS, LLP The Perkins House, Suite 200 118 N. Gadsden Street Tallahassee, FL 32301 Tom R. Moore, Esq. (by U.S. Mail) Senior Attorney Agency for Health Care Administration 2727 Mahan Drive Tallahassee FL 32308 on this 2" day of April, 2003. rank P. Rainer, Esquire ra STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS VARIETY CHILDREN'S HOSPITAL, INC., Petitioner, vs. AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. GENERAL COUNSEL APR 28 2003 Agency for Health ) ) ) ) ) Case No. RECEIVED ) ) ) ) ) Care Administration ORDER CLOSING FILE This cause having come before the undersigned on a Notice of Voluntary Dismissal, filed April 21, 2003, and the undersigned being fully advised, it is, therefore, ORDERED that the file of the Division of Administrative Hearings. in the. above-captioned matter is hereby closed. DONE AND ORDERED this 22nd day of April, 2003, in Tallahassee, Leon County, Florida. qd he DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2003.

Docket for Case No: 03-001160CON