Findings Of Fact Upon consideration of the oral and documentary evidence presented the following facts are found: Petitioners each made application for a certificate of need under the provisions of Sections 381.493 through 381.497, Florida Statutes, 1975, which applications were submitted to the Bureau of Community Medical Facilities and accepted as complete by the bureau. Each application seeks a certificate of need for a third generation computerized axial tomography scanner (whole body unit) hereinafter referred to as a CAT scanner. There is presently in Jacksonville a head scanner installed at St. Vincent Hospital in November, 1975, and a whole body scanner at St. Luke's Hospital which has been in full operation since January, 1976. All three Petitioners are located in Jacksonville, Florida. The applications were processed by the appropriate Health Systems Agency. After due consideration the Health Systems Agency recommended that each of the three applications be granted. At the request of the Bureau of Community Medical Facilities, Department of Health and Rehabilitative Services, the State Hospital Advisory Council reviewed the applications and upheld the Health Systems Agency's determination that the three applications should be granted certificates of need. After consideration of the applications, the Health Systems Agency's recommendation the State Hospital Advisory Council's recommendation, Mr. Art Forehand, Administrator, Office of Community Medical Facilities, Respondent herein, notified each of the three Petitioners that their applications were not favorably considered. Mr. Forehand's notification set forth three reasons for the unfavorable consideration. Those were (1) lack of demonstrated need for the requested scanner, (2) failure of each application to demonstrate positive action toward containment of cost for services rendered to the public, and (3) lack of demonstrated unavailability, unaccessability, and inadequacy of like services within the Jacksonville area. At the time of his decision Mr. Forehand had no material or information available to him which was not available to the Health Systems Agency or the State Hospital Advisory Council at the time of their decision. At the time the three applications were denied Mr. Forehand felt that there did exist a need for one additional scanner in the Jacksonville area but he did not feel that he should bear the burden of deciding which one of the three applications should be granted and therefore all three were denied. Except for those matters set forth in Mr. Forehand's denial and noted above, none of the parties to this proceeding disputed that the criteria for determining need found in Section 101-1.03(c), F.A.C., were met. A study of computerized axial tomography with suggested criteria for review of certificate of need applications was conducted by the staff of the Health Systems Agency of Northeast Florida relative to the Duval County area. This study was published in April of 1976 and its findings appear to have been accepted by the Health Systems Agency. As one of its suggested criteria for determining need it found that a hospital or applicant should have a potential case load of at least 1,000 CAT scans per year. The study went on to project a potential case load for the three Petitioners herein. That projection for Baptist Memorial Hospital shows a a potential case load of 2,512 scans per year. The study noted that Baptist Memorial projected 1,300 scans for the first year during start up operations and 2,080 scans during the second and third years of their forecast. The study found that Riverside Hospital has a potential case load of 1,196 scans per year compared to their own projections of 1,432 scans per year. The study finally found that the University Hospital has a potential case load of 1,558 scans per year compared to their projection of 2,904. Testimony on behalf of the Respondent shows that in the opinion of Respondent full use of a CAT scanner is 10 scans per day on a 20-day work month working five days a week. As shown by unrebutted testimony the existing scanner at St. Luke's Hospital in Jacksonville is presently averaging 10 scans per day, five-days a week. Further, according to the evidence presented by Respondent, the existing scanner at St. Vincent is being utilized to at least 85 percent of its capacity. Respondent took the position at the hearing that when existing scanners are being used to 85 percent or more of their capacity a need exists for more equipment. Thus, it appears that using the criteria of utilization adhered to by Respondent, the existing CAT scanners in Jacksonville are being utilized to the extent that there is a need for additional scanners. University Hospital has 310 licensed beds and is the community hospital in Duval County with the responsibility of serving the indigent on an emergency and short term basis. It is the trauma center of the city and has the most active emergency room. It is also the major teaching hospital in Duval County. Respondent agrees that it has the greatest need of any hospital in Duval County for a CAT scanner. The University Hospital has approximately 300 visits per month to its emergency room. In the four months prior to the date of final hearing the hospital did 586 skull x-rays due to trauma. In the case of acute trauma patients frequently may not be moved from one hospital to another for the purpose of a CAT scan nor, in some cases, should other dangerous invasive techniques be used for diagnosis. Baptist Hospital has 567 licensed beds and is a major oncology center or cancer center and does a large amount of surgical cancer work in additional to radiation therapy. With the possible exception of University Hospital, Baptist Hospital is the largest pediatric hospital in the area. According to the testimony of the administrator of the hospital it would take 14 to 18 months after receipt of a certificate of need to have a CAT scanner in service. Riverside Hospital has 183 licensed beds. The hospital has been a specialty hospital since its establishment in 1908 and serves the Riverside Clinic. The hospital has approximately 200 specialized physicians, all board certified, on-staff. Riverside is a unique hospital because of its degree of specialty and its relationship to Riverside Clinic. Riverside Hospital does 100 percent of the Riverside Clinic's radiology work. Riverside Hospital has been known as an established diagnostic center. Witnesses for Riverside Hospital testified that if they were not able to have a CAT scanner their reputation and ability to provide first class service would be seriously diminished. CAT scanners represent a significant development in diagnostic medicine. They reduce the need for many dangerous, painful and costly injections of dye, air and radioactive isotopes required by some of the more traditional diagnostic procedures. The three most common tests displaced by CAT scanners are pneumoencephalography, angiography and radioactive isotope scanning. The first two of the foregoing are particularly expensive procedures and require hospitalization. At present, patients at the three Petitioner hospitals have to be transported to another facility in order to use a scanner. The transfer of an inpatient to another hospital for a scan may effectively consume the better part of a patient's day and may require an extra day of hospitalization. The cost of transportation, increased hospital stay and ancillary matters increase the actual cost to the Patient. Patients suffering from severe trauma or otherwise in a critical state, may not be transported out of a hospital to a scanner. All three of the Petitioners have an active neurological and neurosurgical staff and qualified radiologists. The unrebutted testimony indicates that, although CAT scanners are a new development whose potential has not yet been fully explored and whose development may not yet be final, they nevertheless have become an essential diagnostic tool of regular use.
Findings Of Fact On May 19, 1982, Respondent, Department of Health and Rehabilitative Services (HRS), issued Certificate of Need No. 2080 to Beverly Enterprises to build a 120-bed nursing home to cost $2,047,000 on State Road 674, Sun City Center, in Hillsborough County, Florida, with a termination date stated on the face thereof of May 18, 1953. At Paragraph 2 of the CON, it was stipulated that any person, upon a showing of good cause, could reguest, within 30 days of the issuance of the certificate, a hearing for the purpose of reconsidering the issuance of the certificate. At Paragraph 3 of the CON, it was stipulated that within 30 days of written notice of the issuance of denial of the certificate, any person whose interests are substantially affected by the Department's decision shall have the right of appeal. Publication of notice of issuance in the Florida Administrative Weekly was determined to constitute receipt of written notice. Notice of the issuance of the CON was published in that Publication on June 4, 1982. Thereafter, the stock in Sun City Health Care, Inc., formerly a wholly owned subsidiary of Beverly Enterprises, was sold to Coronado Bay Corporation, Petitioner herein. By letter dated April 6, 1983, Petitioner notified HRS (Office of Community Medical Facilities) of this sale and its intention to transfer the location of the proposed facility from Sun City Center to a piece of property in Bahia Beach on which Petitioner had an option to purchase. The letter here referenced was also to be considered by HRS as a request to approve the transfer of the CON as described. No action was required of HRS on this request and none was taken, silence signifying acquiescence. Approximately one month later, on May 3, 1983, 16 days before the expiration of the CON, Petitioner requested a six-month extension of the CON and, by letter dated May 13, 1983, HRS granted the extension, establishing a new termination date of November 18, 1983. By that letter of May 13, 1983, HRS notified Petitioner of the requirements to start construction when in the second paragraph thereof it stated: Please be advised that the project must be under physical and continuous construction, other than site preparation (emphasis supplied] prior to the new termination date to have a valid and continuing Certificate of Need. Though the HRS rule that previously defined the term "physical and continuous" was subsequently held by the courts to be invalid, and there still exists some question that the term may include work accomplished prior to site preparation, such as the execution of a construction contract, Mr. Ward, writing for Respondent, HRS, obviously did not follow this school of thought and intended by his words to mean that the construction work actually be in progress, which constitutes a statement of HRS policy. He indicates that on October 19, 1983, a letter was sent by Respondent to Petitioner advising it of this definition. The letter was addressed to Beverly Enterprises, d/b/a Sun City Health Care, 1050 Avenida del Circe, Venice, Florida. All other correspondence was sent either to Petitioner's Orlando or Ruskin, Florida, offices. This October 19, 1983, letter was not introduced by either party. On October 27, 1983, Petitioner paid $12,900 to the Hillsborough County Board of County Commissioners for water connection ($3,900) and sewer connection ($9,000) at the site. Even before that, however, on October 19, 1983, Petitioner applied for and was granted a certification of street address of "750 Vernum Road" by the Hillsborough County Department of Streets and Addresses. On or before November 1, 1983, Petitioner submitted the facility plans to the Hillsborough County Health Department. Thereafter, upon approval of all of the above, on November 1, 1983, Petitioner notified HRS by letter that the Bahia Beach site was not to be utilized and that the project covered by the CON which had been extended to November 18, 1983, would actually be constructed on the original site designated in the CON; i.e., in Sun City Center. No objection to this was interposed by Respondent, HRS. In furtherance of that plan, Petitioner entered into an agreement with a builder on November 2, 1983, to construct the facility. On November 15, 1983, Respondent's Medical Facilities Architect Supervisor in the Office of Licensure and Certification, by letter, gave Petitioner approval for the commencement of foundation work, only specifying that: "No work may be done on any of this portion of the building until final approval has been received from this office." This same letter also bears the caveat: You are advised that subsequent review by the licensing agency may, by necessity, cause changes to be made within the building and these changes may affect the foundation work. Therefore, the risk of starting foundation work at this time must be assumed by the owner. This letter, dated three days before the expiration of the extension of the CON, was mailed by Petitioner to Respondent's Ruskin, Florida, address, even though Petitioner had, as early as its May 3, 1983, letter requesting the extension, requested replies be sent to the Orlando, Florida, address. Petitioner contends that this letter should have gone to Hillsborough County. On November 14, 1983, Petitioner was issued a clearing Permit No. 83- 603-8CA, which was "for underbrushing and foundation only--per J. Miller"; and on November 18, 1983, Petitioner was issued a foundation Permit No. 06610 by Hillsborough County for the site in question, for which it paid $277.50. Sometime in late November or early December, 1983, Mr. Ward, who was in the area on other business, attempted to visit the site. He went to the medical center to find out where the proposed site was, but relates nobody there seemed to know where it was. He then went to Mr. Godby's office at the development company and again could not find the correct site. From a phone call he had with Mr. Ward in December, 1983, Mr. Finley got the impression that Mr. Ward went to the wrong site. As a result, the two men arranged for Mr. Ward to visit the proper site on December 21, 1983. When Ward arrived in Tampa on that date, he was taken to the site, where he found minimal land clearing operations were underway. Only one bulldozer was at the site, which had come for the first time that morning, and only a portion of the area had been scraped. On the basis of this inspection and comments regarding a lack of construction made to him by at least one individual connected with the Petitioner, he concluded that construction had not been started sufficiently to comply with the Respondent's "physical and continuing" test and that, therefore, the CON should be considered void. Mr. Ward conveyed this information to Mr. Finley by phone on December 22, 1983, and the oral notification was followed up the same day by a letter to Mr. Finley from W. Eugene Nelson, Administrator of Community Medical Facilities, Office of Health Planning and Development, for Respondent. The letter stated that because Petitioner had not "commenced construction" as set forth by Chapter 83-244, Laws of Florida, 1983, the CON was null and void. Deficiencies cited in the letter included: (a) no site preparation until December 21, 1983; and (b) no undertaking of foundation forming with steel installation and concrete pouring as of December 21, 1983. Upon receipt of the oral information from Mr. Ward, Finley immediately called the contractor and told him to cease work. This was done: (1) to cut losses (according to Mr. Finley, approximately $150,000 had already been expended on the project); and (2) to prevent any violation of the law by undertaking construction without a valid CON. It is the stated position of Mr. Finley that had Mr. Ward not called him on December 21, the required materials would have been on the site to actually begin construction by December 22, 1983. This projection was confirmed by Mr. Minardi, a representative of the contractor, who indicated that the site engineering (the actual laying out of the corners of the building) had been accomplished prior to the bulldozer coming in to do the site clearing. He contends that construction was commenced when the foundation permit was received on November 18, and he further indicates that the schedule under which he was operating called for the subcontractor to come onto the site on December 22, 1983, to dig and Place the reinforcing steel for the foundation, with the concrete scheduled for late that afternoon. In his opinion, by January 1, 1984, they would have been well into the flow of construction. While the total foundation would not have been in, some would have been. Petitioner cites numerous reasons for the delay in the beginning of construction. At first, the site was changed from Sun City Center to Bahia Beach. However, between April, 1983, and November, 1983, Petitioner experienced numerous problems with the Hillsborough County Planning and Zoning Department and finally was told that Bahia Beach was not a good place for the facility. Based on the information, Petitioner decided to again utilize the Sun City Center site. It was at that time, late October and early November, 1983, that Petitioner began the spadework to get the project under way at that location, with the water and sewer deposits, the addressing, the signing of the construction contract, and the foundation permit all coming within a period of 23 days from October 27 to November 18, 1983. Petitioner attributes the delay from that last date to December 21, 1983, for the most part to the rainy weather experienced in the area during that period which so wet the ground that nothing could be done.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED THAT: A final order be entered by the Department of Health and Rehabilitative Services providing that CON No. 2080, to build a 120-bed nursing home in Hillsborough County, Florida, c expired on November 18, 1983, and is, therefore, null and void. RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1984. COPIES FURNISHED: F. Philip Blank, Esquire W. Douglas Beason, Esquire F. Philip Blank, P.A. 241 East Virginia Street Tallahassee, Florida 32301 Jay Adams, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Conclusions The Agency served the Petitioner with a Notice of Intent to Impose Late Fine dated March 24, 2009 notifying the Petition of its intent to impose an administrative fine in the amount of five thousand dollars ($5,000.00), attached hereto and incorporated herein (Ex. 1). Petitioner requested a formal hearing at the Department of Administrative Hearings. The Agency also served the Petitioner with a Notice of Intent to Deny dated May 15, 2009, notifying the Petitioner of its intent to deny its renewal application, a tached hereto and incorporated herein (Ex. 2). The Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 3) with the other party to these proceedings and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. The Notice of Intent to Impose Late Fine and Notice of Intent to Deny are superseded by this agreement. Filed July 2, 2009 3:19 PM Division of Administrative Hearings. Petitioner has paid an administrative fee in the amount of $2,000.00. Each party shall bear its own costs and attorney's fees. 9Ld..l. _ The above-styled cases are hereby closed. DONE and ORDERED this .;:l,?t:f.y of Leon County, Florida. , 2009, in Tallahassee, Holly enson, Secretar 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 FILING FEE 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 OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Tatiana Perez, Owner Lourdes Residence, Inc. 5770 SW 5th Terrace Miami, Florida 33144 (U.S. Mail) MaryAlice H. David Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Bernard E. Hudson Agency for Health Care Administration 2327 Mahan Drive, MS #46 Room #310 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this theZ y y of 2009. fAgielnccy fhor HSealthhCa=re A=dministration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873
Findings Of Fact The Change of Ownership In March 1993, Galen filed an application for a CON to add a ten-bed Level II Neonatal Intensive Care Unit (NICU) at its hospital known as Westside Regional Medical Center, located in Broward County in District X. This application, CON No. 7248, was initially denied by the Agency. Galen filed a Petition for Formal Administrative Hearing on August 12, 1993, challenging that denial and seeking approval of its application. In the same batching cycle, Memorial filed an application for a ten bed Level II NICU, Con No. 7249, which the Agency also preliminarily denied. On August 13, 1993, Memorial filed its petition for formal administrative hearing. The cases were consolidated for hearing by Order entered September 3, 1993. Two existing providers of Level II NICU services in the District sought and were granted leave to intervene: NBHD and Plantation. On January 7, 1994, NBHD filed a Motion for Summary Recommended Order. The basis for summary relief was that subsequent to the filing of its application for the Westside facility, Galen had sold or transferred that facility to Columbia and that Columbia had become the new license holder for the facility. Galen responded in opposition that no material facts set forth in the application for the CON to establish the Level II NICU at Westside had changed as a result of the transfer to Columbia. Furthermore, Galen contends that its application must be permitted to undergo the de novo comparative review process. The Galen application was deemed complete, preliminarily reviewed and initially denied. The basis of the initial denial was unrelated to any change in ownership. Galen timely sought de novo comparative review by invoking the administrative hearing process on August 12, 1993. The application has not been withdrawn. On November 5, 1993, Galen entered into a purchase and sale agreement with Columbia. Under the terms of that agreement, Columbia undertook legal responsibility for all liabilities and contractual obligations related to the Westside facility. As required by law, Columbia filed a change of ownership application (CHOW) with the Agency which ultimately issued a new license to Columbia for the operation of the Westside facility. The Agency's CHOW file establishes that the Agency received and reviewed the following documents, among others, related to Columbia: A list of the officers and directors of Columbia; Columbia's articles of incorporation; the certificate of incorporation of Columbia issued by the State of Florida; Columbia's audited financial statements; affidavits asserting that Columbia would accept all outstanding liabilities due and payable to the State of Florida, including but not limited to any outstanding liabilities to the Medicaid Program; assertions that Columbia would correct deficiencies, if any, on the facilities most recent license survey; and assertions that Columbia would comply in all respects with applicable provisions under Chapter 766, Florida Statutes (regarding the Florida Patient's Compensation Fund). The deposition of Mr. James A. Cruickshank, chief Operating Officer for Westside Regional Medical Center, was admitted into evidence by NBHD. Mr. Cruickshank testified that he had been employed at Westside since 1987. He is directly responsible for the operations of the facility, and held that position and those duties both before and after the transfer of assets to Columbia. He participated in the preparation of the CON application and is familiar with its contents. Mr. Cruickshank testified that, as Chief Operating Officer, he was familiar with the following matters, none of which had changed, or were expected to vary from the representations made in the CON application, as a result of the transfer of assets to Columbia: Administration - no change; Admission and discharge policies - no change; Operational Management - no change; Personnel - no change; Staffing - no change; Medical staff - no change; Medical committees - no change; Financial personnel - no change; Charges of fees - no change; Financial policies or procedures - no change; Budgeting process - no change; Financial commitments - no change; Projected costs - no change; Financial feasibility - no change; Data or underlying assumptions - no change; Admissions or discharge data - no change; Average length of stay data - no change; Scope of services - no change; Level of proposed services for NICU unit, including: Nursing, Specialty Nursing, Surgical, Emergency, Respiratory therapy, X-Ray; Obstetrics; Ultrasound; Clinical laboratory; Nutritional; Anesthesia; or social services - no change from those represented in the CON application. Quality of care - no change; Standards and qualifications for medical staff - no change; Ratios for medical specialists - no change; Nursing staff qualifications, specialists or ratios - no change; Patient stations, equipment or physical plant and layout - no change; Licensed bed capacity - no change; Accessibility of services - no change; AA. Extent to which proposed NICU unit will address patient need in district - no change; BB. Extent to which the medically under served individuals in the district use or will use the Westside facility - no change; CC. Ability of the facility to meet any federal regulations requiring uncompensated care, community service or access by minority and handicapped service to federally assisted programs - no change; DD. Utilization data - no change; EE. Recruitment - no change; Mr. Cruickshank's testimony in this regard is accepted. Mr. Cruickshank testified that the financial feasibility and stability of this proposal is strengthened by the Columbia acquisition: Westside is the only facility owned by Columbia; the only capital projects or expenditures for which Columbia would be responsible would thus be significantly less than the $27,755,000 listed on Schedule 2 of the CON application; and the source of funds for the proposed NICU is from operating expenses. Mr. Cruickshank's testimony in this regard is also accepted. Mr. Cruickshank, testified that Galen's board no longer has operational responsibility for or exercises any control over Westside Regional Medical Center. /2 Galen is no longer financially committed to the proposed project. Galen's letter of intent was accompanied by a resolution of its board. Galen's CON Application No. 7248 included a listing of Galen of Florida, Inc.'s board. Columbia and Galen do not share any of the same board members. Mr. Cruickshank testified that Galen's CON application only provided Galen's audited financial statements, and did not contain Columbia's audited financial statements. No audited financial statements for Columbia have been provided to AHCA in relation to CON application 7248. Statutory and Regulatory Criteria Rule 59C-1.008, Florida Administrative Code (the Rule), provides an outline for what is required of a CON applicant to have an application accepted and reviewed by AHCA. The Rule implements the statutory criteria in Section 408.037, Florida Statutes, which specifies the CON "Application Content" requirements. Section 408.037, Florida Statutes, provides, in part, that an application for a CON shall contain: A statement of the financial resources needed by and available to the applicant to accomplish the proposed project. This statement shall include: A complete listing of all capital projects . . . pending, approved, or underway in any state at the time of the application . . .[and] shall include the applicant's actual or proposed financial commitment to those projects and an assessment of their impact on the applicant's ability to provide the proposed project . . . (c) A detailed financial projection . . . [which] shall include a detailed evaluation of the impact of the proposed project on the cost of other services provided by the applicant . . . An audited financial statement of the applicant . . . includ[ing] . . . a balance sheet and a profit-and-loss statement of the two previous fiscal year's operation . . . A certified copy of a resolution by the board of directors of the applicant , or other governing authority if not a corporation, authorizing the filing of the application; authorizing the applicant to incur the expenditures necessary to accomplish the proposed project; certifying that if issued a certificate, the applicant shall accomplish the proposed project within the time allowed by law and at or below the costs contained in the application; and certifying that the applicant shall license and operate the facility. [Emphasis added.] Section 408.037, Florida Statutes. Elizabeth Dudek, Chief of CON and Budget Review for Respondent AHCA, testified that an applicant's failure to comply with the statutory requirements concerning submission of the letter of intent and board resolution would result in the rejection of the application. Pursuant to the above statutory criteria, if an applicant fails to submit audited financial statements, AHCA would deem the application incomplete, and the application would be withdrawn from consideration. The Rule also incorporates the letter of intent and board resolution provisions found in Section 408.039(2), Florida Statutes. This statute provides: . . . a letter of intent shall be filed by the applicant . . . [which] describe[s] the proposal with specificity, including proposed capital expenditures, number of beds sought . . . [and the] identy of the applicant, including the names of those with controlling interest in the applicant. The letter of intent shall contain a certified copy of a resolution by the board of directors of the applicant . . . authorizing the filing of the application described in the letter of intent; authorizing the applicant to incur the expenditures necessary to accomplish the proposed project; certifying that if issued a certificate, the applicant shall accomplish the proposed project within the time allowed by law and at or below the costs contained in the application; and certifying that the applicant shall license and operate the facility. [Emphasis added.] Section 408.039(2)(a-c), Florida Statutes. Ms. Dudek testified that, pursuant to this statute, the licenseholder for Westside Regional Medical Center is required to be the applicant for a CON. At the time Galen submitted the letter of intent, Galen was the licenseholder for Westside Regional Medical Center. Columbia has not filed a letter of intent or board resolution for CON Application No. 7248. In the case of an existing licensed facility, the "applicant" referred to in the statute and the Rule must attest that they will license and operate the facility, and thus is required to be the facility's licenseholder. If AHCA issued a CON to the applicant, Galen, for the proposed project, Galen would not be able to meet the requirement that it license and operate the project because Galen no longer holds the license for Westside Regional Medical Center. Rule 59C-1.008(1)(n), Florida Administrative Code, provides: The applicant for a project shall not change from the time a letter of intent is filed, or from the time an application if filed in the case of an expedited review project, through the time of the actual issuance of a Certificate of Need. Properly executed corporate mergers or changes in the corporate name are not a change in the applicant. /3 Nothing in the statute specifically mandates that the licenseholder cannot change or that such change compels involuntary withdrawal of the application from comparative review. Ms. Dudek testified that when she received notice that AHCA had issued a new license which changed the ownership of Westside Regional Medical Center of Columbia, she determined that, pursuant to Rule 59C-1.008, the CON application filed by Galen was no longer an application that could be reviewed because the entity submitting the application was no longer the licenseholder. Ms. Dudek explained that in circumstances where the licenseholder sells the facility to another corporation who then becomes the new licenseholder, as is the case here, the rule requires that AHCA reject the CON application because it would not contain a letter of intent, board resolution, audited financial statements, capital project listing and proforma's for the acquiring entity. Galen did not offer testimony to show that the change in the applicant had occurred as a corporate name change or as a corporate merger. Ms. Dudek testified that subsequent to the omissions period, applicants are not permitted to amend the application, and AHCA is prohibited by rule from considering subsequent events in the application review process. Rule 59C-1.010(2)(b), Florida Administrative Code, provides in pertinent part: Subsequent to an application being deemed complete by the agency, no further application information or amendment will be accepted by the agency. Ms. Dudek testified that the purpose for this prohibition is to set forth parameters in terms of what information will be reviewed for a particular period of time, so that each applicant knows what the agency considers, and that it is considering the same information for all applicants as of the date each is deemed complete. Without amending or supplementing the application, there is no outlet for Columbia to produce, or for the agency to consider, information concerning the new licenseholder. Amending and supplementing the application is prohibited by Rule 59C-1.010, Florida Administrative Code, as discussed in finding of fact #31. Ms. Dudek testified that when an existing facility submits a CON application, the "applicant" is required by Agency rule to be the current licenseholder. Rule 59C-1.008(1)(m), Florida Administrative Code, provides in pertinent part: An applicant for a project subject to Certificate of Need review which affects an existing licensed health care facility . . . must be the license holder. . . . If agency records indicate information different from that presented in the letter of intent with respect to the identification of the holder of the license and the licensure status, then the agency records create a rebuttable presumption as to the correctness of those records and therefore the application will be rejected. Ms. Dudek testified that agency records show that Columbia currently holds the license for Westside Regional Medical Center. Mr. Cruickshank confirmed that Columbia, and not Galen, is the current licenseholder for Westside Regional Medical Center.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a summary final order be entered dismissing the Petition for Formal Administrative Hearing filed by Galen of Florida, Inc., d/b/a Westside Regional Medical Centers in this case. DONE and ORDERED this 11th day of May 1994, in Tallahassee, Florida. JAMES W. YORK, 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 11th day of May 1994.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $2,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed July 12, 2011 1:26 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this_|_! day of Tied ,2011. DL
Other Judicial Opinions 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 filing fee 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 of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this _/ any of Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) _ Suzanne Suarez Hurley, Attorney Sue G. Brody 2 Office of the General Counsel Chief Executive Officer Agency for Health Care Administration Bayfront Medical Center, Inc. (Electronic Mail) 701 — 6" Street South St. Petersburg, FL 33701 (U.S. Mail) Jon M. Pellett, Esq. Barr, Murman & Tonelli 201 East Kennedy Blvd., Suite 1700 Tampa, FL 33602-5865 (U.S. Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Conclusions Competent substantial evidence supports the conclusion that Adrian Fuentes disabilities are the result of the failure to deliver him before his mother loss amniotic fluid, or up to an estimated 12 hours earlier. An earlier delivery was the standard of care expected in a case of IUGR. His permanent and severe disabilities were directly and proximately caused by the failure of SBHD employees to handle an ultrasound report expeditiously as directed and as their policy provided. ATTORNEYS’ FEES AND LOBBYISTS’ FEES: In compliance with s. 768.28(8), F.S., but not with Section 3 of this claim bill, Claimant's attorneys' fees are set at 25 percent. There is no lobbyist for the bill at this time. As of October 9, 2007, the attorneys reported having incurred costs of $115,246.02 for representing the Claimant. The Claimants entered into an agreement to pay attorneys’ fees and costs. RECOMMENDATIONS: For the reasons set forth in this report, I recommend that Senate Bill 60 (2008) be reported FAVORABLY. Respectfully submitted, Eleanor M. Hunter Senate Special Master cc: Senator Jeremy Ring Representative Evan Jenne Faye Blanton, Secretary of the Senate House Committee on Constitution and Civil Law Tom Thomas, House Special Master Counsel of Record
