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 Respondent pursuant to Chapter 408, Part IJ, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the Respondent the attached Administrative Complaint. (Ex. 1) 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Respondent’s health care clinic license is voluntarily surrendered effective as of September 1, 2012. 6. The Administrative Complaint is withdrawn. 7. The Respondent is responsible for providing any refunds that may be due to any clients. 8. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 9. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially Filed June 11, 2013 8:37 AM Division of Administrative Hearings affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this ££ day of pre , 2013. Elizabeth Dudek, Secretary Agency for Heath Care Administration
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 come et this Final Orderwas served on the below-named persons by the method designated on this SO ay of Jn , 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Thomas Jones, Unit Manager (Electronic Mail) Licensure Unit Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Arlene Mayo-Davis, Field Office Manager Medicaid Accounts Receivable Local Field Office Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley David Glickman, D.O. Medicaid Contract Management 8159 South Savannah Circle Agency for Health Care Administration Davie, Florida 33328 (Electronic Mail) (U.S. Mail) Warren J. Bird, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact On July 30, 1981, Petitioner filed an application with the Health Systems Agency of Northeast Florida, Area III, Inc. for a Certificate of Need to construct an enclosure on the fifth floor of the south wing of Petitioner's hospital. The purpose of that enclosure was in contemplation of future available bed space at a time when need for those beds had been documented and approved by the local health system's agency. (Petitioner's Composite Exhibit No. 2) In response to a request for further information which was made by the Executive Director of the local health system's agency, Rudolph Nudo, Director of Engineering for the Petitioner, answered that inquiry in writing by correspondence dated September 24, 1981. (Petitioner's Exhibit No. 3) Through the course of that correspondence Nudo indicated that the temporary use of the fifth floor would be for storage, and the fifth floor would be used in a permanent way for storage and expansion of the hospital's wellness and physical fitness programs should a determination be made in the future that additional beds are not needed in the review area of the local HSA. On November 23, 1981 the local HSA wrote to advise Herbert E. Straughn, Medical Facilities Consultant, Community Medical Facilities for Respondent, that the Northeast Florida Area III Health Systems Agency was recommending the denial of the proposed Certificate of Need. That correspondence had as an attachment the legal notices publicizing the public hearing related to the project, staff briefing memoranda and papers involved in the review process. (Respondent's Exhibits 4 through 4d) On January 27, 1982, Thomas J. Conrad, Administrator, Community Medical Facilities of the Office of Health Planning and Development, Department of Health and Rehabilitative Services, wrote to Charles Vadakin, President-General Manager of Petitioner, to advise Petitioner that the request for a Certificate of Need was being denied. (Petitioner's Exhibit 4) This indication of denial had as an attachment the State agency action report. (Petitioner's Exhibit No. 5) On February 5, 1982, in keeping with Subsection 120.57(1), Florida Statutes, Petitioner requested a formal hearing to consider its entitlement to be granted a Certificate of Need to "shell-in" the fifth floor at its facility. On February 17, 1982, the Division of Administrative Hearings received Respondent's request that the Division conduct the formal hearing. That hearing de novo was held on April 8 and 9, 1982. The evidence presented in the course of the hearing addressed the question of whether the proposal for construction by the applicant meets the criteria established in Section 381.494(6)(c), Florida Statutes and Rule 10- 5.11, Florida Administrative Code, in particular Rule 10-5.11(1),(3),(4),(6) and (12), Florida Administrative Code. (Those other criteria set forth in Rule 10- 5.11, Florida Administrative Code, have satisfactorily been addressed by the application process or are inapplicable in terms of the subject matter of the given criteria.) Evidence presented also dealt with the subject of whether this Certificate of Need could be granted due to extenuating and mitigating circumstances which exist, notwithstanding the applicant's failure to successfully meet the criteria discussed above. Memorial Hospital of Jacksonville is an acute general care hospital with a 309 bed capacity. The hospital is located in Jacksonville, Duval County, Florida. Petitioner has been granted Certificates of Need allowing the construction of an educational floor, perinatal center on a second floor and the third and fourth floors above those. The third and fourth floors would house an additional thirty-four beds, bringing the total bed count in the hospital to 343 beds. The construction is referred to as the south wing and is depicted at a certain point in the construction through Petitioner's Exhibit 1, a photograph of the area of construction. Memorial's present request for a Certificate of Need would allow the construction of an additional floor, or fifth floor, above the, four floors that have been granted. Memorial Hospital provides critical care, to include trauma cases treated in its emergency room and open heart surgery. In addition, there is a cardiac catheterization laboratory and other general cardiac care, an intensive care unit, a perinatal (birthing) center and other hospital services. The fifth floor, if constructed, would not immediately contain additional beds and would be left with interior partition walls and would be used for storage space in the interim period prior to the grant of any further beds to the Petitioner. The construction on the south wing which had been approved has its origins in Certificates of Need which were the topic of separate applications filed in 1979 and 1980. Specifically, in November, 1979, Memorial filed separate applications for its educational floor, first floor, in the amount of $2,991,000.00 and at the same time, an application for a perinatal unit, second floor, in the amount of $4,352,000.00. The applications were granted in 1980 in the amounts requested. At a later date in 1980, Petitioner filed a separate application for three additional stories; floors three, four and five, and for 106 additional beds, all in the cost amount of $10,656,000.00. This request came about at approximately the same time as a request by St. Luke's Hospital in Jacksonville, Florida, to move its hospital operations to an area in the vicinity of Memorial Hospital. Memorial and St. Luke's, together with the local HSA, resolved the problem of the competing certificate requests by entering into a stipulation and agreement in 1981. By the terms of that agreement, Memorial limited its expansion to two floors instead of three, leaving floors three and four intact. It reduced its bed request from 106 to 34 additional new beds to be installed on one of the two additional floors, with the second additional floor receiving 34 beds from another part of the hospital which was not subject to the Certificate of Need. The second set of beds would be gained by the process of converting existing semi-private rooms to private rooms. Petitioner also agreed not to apply for additional beds until at least six months after the perinatal unit and 34 new medical/surgical beds had been opened. St. Luke's reduced its number of obstetric beds by 20 and it agreed that it would not "shell-in" space for additional beds in its proposed facility. The results of the agreement caused the abandonment by Memorial of its fifth floor request and the reduction of bed requests by 72 beds. The new terms are set out in Certificate of Need No. 1488 pertaining to floors three and four. The project costs were left as originally requested, and that monetary amount was granted. The agreement reached between the local HSA, Petitioner and St. Luke's was premised upon extenuating and mitigating circumstances, especially the possibility of the cost of protracted litigation had the parties not come to an agreement. Following the stipulation and agreement with the local HSA and St. Luke's Hospital, the Petitioner filed the present request for Certificate. The general purpose of that project has been discussed before. The rationalization on the subject of consistency of the project with the local Health Systems' plan and the local annual implementation plan was as follows: The proposed enclosure project is consistent with Health Systems' plan and annual implementation plan for 1980, in that it provides a mechanism for assuring available health care resources at the lowest possible cost consistent with quality service delivery. The proposal guarantees no additional beds will be added until approved by the Health Systems Agency and yet safeguards the most effective option of maximizing current capital investment dollars. This project will allow Memorial Hospital to continue to meet the area's acute health care needs for the next ten years. The project contemplates the expenditure of $1,200,000.00 for cost of construction of "shell-in" space. Need for the subject project was discussed in terms of a reference to "Certificate of Need #1488" which is that Certificate relating to floors three and four of the south wing. The Certificate of Need No. 1488 was based upon an application which included a study concluded in August, 1980, which set forth primary and secondary service areas, census tracts and preliminary 1980 Federal census figures for Duval County gathered by the "Research Department, Florida Publishing Company" and a document to the effect that Memorial had a firm market position, and that health care consumerism was emerging and that there was a strong consumer loyalty-to Memorial. The present application was reviewed by the local Health Agency and the Health Needs and Priorities Committee voted to recommend denial of the proposed project; its Executive Committee also recommended denial of the project. During this review cycle, concerns were expressed about the application in view of the 1981 agreement with St. Luke's and the local HSA in which Memorial agreed not to apply for additional beds for at least six months after the 34 beds which had been approved were in operation. While the present application does not violate the terms of that agreement, it does allow for a large portion of the capital expenditure, i.e., that part devoted to the construction of the "shell-in" of the floor to be achieved and thereby allows for a portion of the capital expenditure related to future beds to be approved. With St. Luke's relocation to south Jacksonville, some time in late 1984 or early 1985, and with the addition of Memorial's construction program that has been approved, 323 beds will be added to the south side area of Duval County in the next few years. In the local HSA staff's opinion, which opinion is accurate, from a community planning basis, there will not be a demonstrated community need for additional beds in the south side any sooner than 1985 and it is more likely that there would be no further bed need before 1990. The local HSA is also concerned that the project would set a precedent for future "shell-in" applications. This concern is borne out by interviews conducted through staff members of that HSA which revealed that seven hospital administrators planned major construction projects in the HSA area, and six administrators indicated that they would ask for "shell-in" space if they thought it would be approved. In specific terms, the local HSA recommended disapproval of the project and did so by written findings alluded to before. In summary, those findings indicated: The Health System's Plan did not address expansion projects which do not directly result in an increase in licensed beds or service but the primary purpose of the fifth floor would be for bed spaces. The Health System's Plan called for a regional rate of 4.3 beds per 1,000 population. Excluding Nemour's Children and St. Johns River Hospital, there were approximately 4.1 beds on the south side and beaches area of Jacksonville. When St. Luke's Hospital (289 beds) relocates to the south side and Memorial opens its 34 new beds, the rate will be approximately 5.2 beds per 1,000 population in 1985. In 1990 the estimated rate would be 5.0 beds per 1,000 population. It was HSA's staff's opinion that there will not be a need on a community planning basis to approve more beds for the south side until the 1990s. The local HSA also indicated that Memorial could be more effective in its specialization. Its recommendation in that regard was that after the current construction of four stories had been completed, Memorial could still have the capability to add additional licensed beds within its presently approved structures, even though it would mean reducing the ratio of private beds to semi-private beds. Specifically, it was recommended by the HSA that: Petitioner reconvert the 34 rooms previously used for semi-private back to semi-private --34 beds Modify the 34 private rooms on the third floor of the new building to semi-private, and --34 beds Modify the 34 private rooms on the fourth floor of the new building to semi-private. --34 beds TOTAL 102 beds These observations and findings are correct, except as they relate to modification of rooms on the third and fourth floors of the new construction. The above-stated suggestion by the local HSA related to the modification to semi-private rooms on the third and fourth floors of the south wing would not comport with the design specifications of those beds as now contemplated by Memorial, in that the private rooms contemplated on those floors did not provide sufficient space to be modified into semi-private rooms. Analysis by HRS adopted and confirmed the majority of the analysis by the local Health Planning Agency. HRS also pointed out in its analysis, and the HRS analysis is accurate, that in view of the fact of excess bed capacity in the planning area through 1985, the adding of potential beds would give Petitioner an undue advantage over facilities should the fifth floor be constructed as "shell-in" space. Furthermore, according to Respondent, construction economies to be realized by Memorial Hospital can only be recognized as legitimate, if there is a community need for the project. Based upon the analysis conducted by Respondent, the project from a community-wide standpoint, under the terms of Section 381.493, Florida Statutes, there is an excess of 238 hospital beds in Duval County through 1985, and possibly into early 1990. Respondent having in mind the bed need situation, concluded that the proposed project was not consistent with bed need standards at the time of review or in the planning future and that the community need to add "shell-in" bed space did not exist absent a recognized bed need, which would not occur before 1985. All of these comments by HRS are correct accounts. It was also concluded by Respondent that there were alternatives for converting private bedrooms to semi-private rooms, increasing capacity without major construction. This is a true understanding of the circumstances except as it relates to the third and fourth floors in the new construction. Based upon the overall analysis, the project application was denied. The conditions at Memorial Hospital are such that it would benefit from an expansion to add a fifth floor at the south wing. Those benefits pertain to the availability of storage and administrative space. The occupancy rate for patients in the hospital during the last year have averaged approximately 90 percent (Petitioner's Exhibit 16), causing both emergency and planned health care services to be delayed due to overcrowding. Federal, State and HSA guidelines call for 80 percent occupancy of nonfederal, short-term care beds, such as provided by Petitioner. There is a need for administrative office space. At the present time some administrative offices are placed in lobbies and hallways and the files for those offices are located in hallways. Intravenous solutions are stored in hallways at present. Testimony by the hospital engineer established a need of 15,000 square feet of space to accommodate storage problems more comfortably. The application seeks 17,500 square feet of space. The alternatives to the construction of the fifth floor related to future bed need and short and long-term storage space would be to forego the expansion, construct the project at a future date, or construct a new building. Construction at a later date could cost as much as an additional $7,000,000.00, constituted of approximately $813,000.00 in construction cost and $6,000,000.00 in loss of gross revenue. These costs are related to completion of the "shell-in" structure after the initial four floors had been completed and assumes loss of revenue related to beds in the third and fourth floors of the hospital, which floors would have to be closed during the construction of the fifth floor at a subsequent time. Construction costs at the present, as set forth in Petitioner's Exhibit No. 3, at the last sentence of the first page, is estimated to be $.31 per-patient day. There is precedent for granting the "shell-in" space as may be found in Petitioner's Exhibits Nos. 8, 9, and 10, related to projects in the Florida Gulf Health Systems Agency, Inc. area of responsibility. Respectively, those projects refer to Women's Hospital in Tampa, Florida; St. Joseph's Hospital in Tampa, Florida; and L. W. Blake Memorial Hospital in Bradenton, Florida. In the situation of Women's Hospital, Respondent allowed the construction by installation of necessary structural equipment and fixtures needed to establish 34 single occupancy rooms as double occupancy rooms as a hedge against construction costs for any additional beds approved at a future date. St. Joseph's Hospital was allowed to construct two floors in which 45 beds had been requested, but only 36 beds were granted per floor, leaving additional "shell-in" space which would accommodate nine additional beds per floor, for a total of 18 beds. In the situation at Blake Memorial Hospital in Bradenton, Florida, that hospital was allowed to "shell-in" a fifth floor on condition that the structural framework would be completed and that the floor would be left in an unfinished state, that is to say, that the improvements necessary for the utilization of that fifth floor for patient rooms were not allowed to be added. In each instance in which some form of "shell-in" space was granted, the HSA area was overbeded at the time of the grant of certificate. The project is not consistent with the local health systems plan, annual implementation plan, and Florida State Health Systems Plan. (Petitioner's Exhibits 11 through 14 respectively)
Conclusions Having reviewed the administrative complaint dated June 12, 2009, and Notice of Intent dated July 9, 2009, attached hereto and incorporated herein (Ex. 1 and 2), and all other matters of record, 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: 1 Filed November 20, 2009 10:37 AM Division of Administrative Hearings. ORDERED: 1. 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. 2. The administrative fine against the Respondent in AHCA Case No. 2009001632 is withdrawn. 3. The Respondent's abortion clinic license is cancelled. 4. The initial application seeking laboratory licensure in Case No. 2009007700 is withdrawn. 5. The Respondent's request for formal hearing is dismissed. 6. Each party shall bear its own costs and attorney’s fees. 7. The above-styled cases are hereby closed. DONE and ORDERED this _// day of hover Ake , 2009, in Tallahassee, Leon County, Florida. El . Arnold, Secretary Y t Health Care Administration Thomas Agenc 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: Jan Mills Facilities Intake Unit Agency for Health Care Admin. (Interoffice Mail) Thomas M. Hoeler, Esquire | Office of the General Counsel Agency for Health Care Admin. (Interoffice Mail) Laura MacLafferty, Unit Manager Hospital and Outpatient Services Unit Agency for Health Care Admin. (Interoffice Mail) Andrew T. Lavin, Esquire Navon & Lavin, P.A. Emerald Park Office Center 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 (U.S. Mail) Karen Rivera, Unit Manager ‘| Laboratory Unit Agency for Health Care Admin. (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 the /8 day of AGI A , 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Certified Mail Receipt (7003 1010 0000 9715 3702) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2009001632 vs. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “AHCA”), by and through the undersigned counsel, and files this Administrative Complaint. against Community Healthcare Center of Pensacola, Inc. (hereinafter “Community Healthcare Center of Pensacola, Inc.”), pursuant to Section 120.569, and 120.57, Fla. Stat. (2008), alleges: NATURE OF THE ACTION 1. This is an action to impose one (1) administrative fine against Community Healthcare Center of Pensacola, Inc. in the amount of Four Hundred and Thirteen Thousand Dollars ($413.000), based upon one (1) deficiency, pursuant to Section 483.091, Fla. Stat. (2008). EXHIBIT 1. i \ JURISDICTION AND VENUE 2. This Agency has jurisdiction pursuant to 483, Part I and Section 120.569 and 120.57, Fla. Stat. (2008). 3. Venue lies in Escambia County, Pensacola, Florida, pursuant to Section 120.57 Fla. Stat. (2008); Rule 58A-5, Fla. Admin. Code (2008) and Section 28.106.207, Fla. Stat. (2008). PARTIES 4. AHCA, is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing clinical laboratory facilities pursuant to Chapter 483, -Part 1, Fla. Stat. (2008) and Rule 58A-5, Fla. Admin. Code (2008). 5. Community Healthcare Center of Pensacola, Inc. is a for-profit corporation, ABO Group + RH clinical laboratory facility is located at 6770 North Ninth Avenue, Pensacola, Florida 32504. Community Healthcare Center of Pensacola, Inc. is licensed as clinical laboratory facilities license # 800003116; certificate number #60474, effective November 21, 2005 through November 20, 2007. Community Healthcare Center of Pensacola, Inc. was at all times material hereto, licensed facility under the licensing authority of AHCA, and required to comply with all applicable rules, and statutes. COUNTI COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. BASED ON RECORD REVIEW, OBSERVATIONS AND INTERVIEW WITH THE FACILITY ADMINISTRATOR ON JANUARY 7, 2009, AT APPROXIMATELY 9:30 A.M., IT WAS DETERMINED THAT THE LABORATORY LICENSE AND HAD CONTINUED TO PERFORM LABORATORY TESTING. STATE TAG L001-CLINICAL LABORATORY LICENSE Section 483.091, Fla. Stat. (2007) CLINICAL LABORATORY LICENSE 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. On or about January 7, 2009, AHCA conducted a biennial survey at the Respondent’s facility. AHCA cited the Respondent based on the findings below, to wit: 8. On or about January 7, 2009, based on record review, observation, and interview with the facility administrator on January 7, 2009, at approximately 9:30 a.m., it was determined that the laboratory had not renewed the State of Florida clinical laboratory license and had continued to perform laboratory testing. 9. Review of state licensure records prior to the survey showed that the facility's laboratory license, number 800003116, had expired on November 20, 2007 and there was no pending application. 10. Review of Rh testing, hematocrit testing records, and pregnancy testing records showed documentation of test results for patient testing that had been performed between November 20, 2007 and January 6, 2009. ll. Observation of the Florida Clinical Laboratory license on display in a frame in the laboratory showed that the license had expired on November 20, 2007. 12. The administrator stated that the laboratory did not have a new state clinical laboratory license and did not realize they had not renewed the Florida license. The administrator stated that the facility had not received the renewal letter prior to the expiration of the license and had not received the "failed to renew" letter from the Agency for Health Care Administration following expiration of the license. Plan of Correction must be completed by February 21, 2009. 13. The regulatory provision of the Florida Statutes and Agency Rules (2008), that are pertinent to this alleged violation read as follows: 483.091 Clinical laboratory license A clinical laboratory may not send a specimen drawn within this state to any clinical laboratory outside the staté for examination unless the out-of-state laboratory has obtained a license from the agency. A new license may be secured for thé new location before the actual change, if the contemplated change complies with this part, part II of chapter 408, and the applicable rules. ek 483.221 Administrative fines.— In determining the penalty to be imposed, the Agency must consider, inter alia, the severity of the violation, actions taken by the licensee to correct the violation, any previous violations by licensee, and the financial benefit to the licensee of committing or continuing the violation. * ko ® 408.804 License required; display.— (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.— (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under. this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. 15. Despite being unlicensed, Respondent continued to conduct laboratory testing and continued to reap the financial benefit of conducting said testing. 16. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. 17. The Respondent's history of failing to timely renew its license, coupled with Respondent’s performance of unlicensed clinical laboratory testing resulting in financial gain in the face of Agency notification advising of the expiration of the license and the consequences of unlicensed activity, serve as a basis for the instant action and are, inter alia, a consideration of the Petitioner in determining the penalty sought herein. 18. Unlicensed laboratory testing is testing without Agency oversight and may result in substandard laboratory protocols and results which place the health and welfare of Respondent’s patients in danger. 19. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this administrative complaint. 2. Impose a fine in the amount of $413,000. CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida Agency for Health Care Administration requests the following relief: 1. Make factual and legal findings in favor of the Agency on Count I. 2. Impose upon Community Healthcare Center of Pensacola, Inc. an administrative fine in the amount of $413,000 for the violation cited above. 3. Grant such other relief as the court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes (2008). Specific options for administrative action are set out in the attached Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency for Health Care Administration, Building 3, MSC #3, 2727 Mahan Drive, Tallahassee, Florida 32308; Michael O. Mathis, Senior Attorney. RESPONDENT IS FURTHER NOTIFED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL REASULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Florida. Michael O. Mathis Fla. Bar. No. 0325570 Counsel of Petitioner, Agency for Health Care Administration . Bldg. 3, MSC #3 2727 Mahan Drive Tallahassee, Florida 32308 (850) 922-5873 (office) (850) 921-0158 (fax) CERTIFICATE OF SERVICE L HEREBY CERTIFY, that a true and correct copy of the foregoing has been served by certified mail on pat day of ark , 2009 to Warren Do Taylor, Administrator, Community Healthcare Center of Pensacola, Inc., 6770 North Ninth Avenue, Pensacola, Florida 32504. Michael O. Mathis, Esq. STATE OF FLORIDA : AGENCY FOR HEALTH CARE ADMINIS: RATION RE: Case Name: COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. CASE NO: 2009001632 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed administrative action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint or any other proposed action by AHCA. If an election of rights with your selected option is not received by AHCA within twenty-one (21) days from the date you received a notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. PLEASE RETURN YOUR ELECTION OF RIGHTS TO: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-922-5873 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object or to have a hearing. | understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late . Fine, the Administrative Complaint, or other proposed action by AHCA, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___ I do dispute the allegations of fact contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes (2006) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choo ; OPTION THREE (3), by itself, i ‘OT sufficient to obtain a formal hearing. You musi file a written petition in order to obt. «a formal hearing before the ‘Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.201, Florida Administrative Code, which requires that it contain: 1. The name and address of each agency affected and each agency’s file or identification number, if known; 2. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any; 3. An explanation of how your substantial interests will be affected by the Agency’s proposed action; 4. A statement of when and how you received notice of the Agency’s proposed action; ; 5. A statement of all disputed issues of material fact. If there are none, you must state that there are none; . 6. A concise statement of the ultimate facts alleged, including the specific facts you contend warrant reversal or modification of the Agency’s proposed action; 7. A statement of the specific rules or statutes you claim require reversal or modification of the Agency’s proposed action; and 8. A statement of the relief you are seeking, stating exactly what action you wish the Agency to take with respect to its proposed action. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. Facility type: (ALF? nursing home? medical equipment? Other type?) Facility Name: License number: Contact person(or attorney or representative): Name Title Address: ; Street and number City Zip Code Telephone No. ; Fax No. Email Signed: Date: NOTE: If your facility is owned or operated by a business entity (corporation, LLC, etc.) please include a written statement from one of the officers or managers that you are the authorized representative. If you are one of the managers or officers, please state which office you hold. ‘Entity name: Name of office you hold: You, your attorney or representative may reply according Subsection 120.54 Florida Statutes (2006) and Rule 28, Florida Administrative Code or you may use this recommended form. Lee teoF 70d FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RN on T Better Health Care for all Floridians Oana N July 9, 2009 CERTIFIED MAIL / RETURN RECEIPT REQUESTED WARREN TAYLOR MD COMMUNITY HEALTHCARE CTR OF PENSACOLA INC LICENSE NUMBER: 800003116 6770 NORTH NINTH AVENUE PENSACOLA, FL 32504-7346 CASE #: 2009007700 NOTICE OF INTENT TO DEEM APPLICATION INCOMPLETE AND WITHDRAWN FROM FURTHER REVIEW Your application for license RENEWAL is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that “Requested information omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency’s request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited’’. You were notified by correspondence dated June 05, 2009 to provide further information addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency’s correspondence. Our records indicate you received this correspondence by certified mail on June 09, 2009. As this requested information was not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: Failure to submit upon written request: e Health Care Licensing Application Addendum with ownership information in Section 2A. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ECTION AND EXPLANATION OF RIGHTS FORMS. Karen Rivera, Manager — . Laboratory Licensure Unit Certified Article Number 7460 3901 9848 4334 8301 SENDERS. RECORD cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 2727 Mahan Drive,MS#32 Tallahassee, Florida 32308 h EXHIBIT STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR DOAH No. 09-3585 HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No. 2009001632 COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Petitioner, vs. AHCA No. 2009007700 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT The State of Florida, Agency for Health Care Administration (“the Agency”), and the licensee/applicant, Community Healthcare Center of Pensacola, Inc. (“the Provider”), pursuant to Section 120.57(4), Florida Statutes, enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, the Provider is a licensed abortion clinic pursuant to Chapter 408, Part II, Chapter 390, Florida Statutes, and Chapter 59A-9, Florida Administrative Code, and is also an applicant for clinical laboratory licensure pursuant to Chapter 408, Part II, Chapter 483, Part I, Florida Statutes, and Chapter 59A-7, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the licensiy EXHIBIT Page 1 of 5 authority over the Provider pursuant to the above referenced provisions of law; and WHEREAS, the Agency served an Administrative Complaint dated June 12, 2009, on the Provider; and WHEREAS, the Agency served a Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (“NOIW”) dated July 9, 2009, on the Provider; and WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the expenditure of substantial sums to litigate the dispute; and WHEREAS, the parties have negotiated in good faith and agreed that the best interest of all the parties will be served by a settlement of this proceeding; NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals are true and correct, are incorporated into the Agreement and are binding findings of the parties. 2. Upon full execution of this Agreement, the Provider agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court (DOAH) of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 3. Upon full execution of this Agreement, the Agency agrees to voluntarily dismiss the Administrative Complaint against the Provider with prejudice foregoing the administrative fine sought to be imposed against the Provider in its entirety, and the Provider agrees to: (1) the Page 2 of 5 voluntarily relinquishment of its abortion clinic license (License No. 821) and closure of the abortion clinic effective on or before October 31, 2009, (2) the surrender of the license certificate to the Agency at “Hospital and Outpatient Unit, Agency for Health Care Administration, 2727 Mahan Drive, MS #31, Tallahassee, Florida 32308” immediately upon the discontinuance of the operation of its clinic, (3) the withdrawal of its petition for formal hearing with regard to the pending Administrative Complaint, and (4) the withdrawal of its initial application for clinical laboratory licensure which is the subject of the NOIW. As part of the closure of its clinic, the Provider recognizes that it must comply with all statutes and rules regarding its closure, including but not limited to, Section 408.810 and Section 456.057, Florida Statutes. Until the license is voluntarily relinquished, the Provider recognizes that it must comply with all statutes and rules required by its licensure, including but not limited to, the reporting requirements under Section 390.0112, Florida Statutes, and Rule 59A-9.034, Florida Administrative Code. The Provider agrees to submit a final report for the final month or partial final month of operation, and if unable to do so through the Agency’s on-line system, may do so by United States mail at the above-referenced address. 4. Venue for any action brought to interpret, enforce or challenge the terms of this Agreement and its corresponding Final Order shall lie solely in the Circuit Court of Florida, in and for Leon County, Florida. 5. By executing this Agreement, the Provider does not admit the allegations raised in the Administrative Complaint and NOIW, but recognizes that the Agency continues in good faith to assert these allegations. 6. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled cases. 7. Each party shall bear its own costs and attorney’s fees. Page 3 of 5 8. This Agreement shall become effective on the date upon which it is fully executed by all parties. 9. The Provider, for itself and any controlling interests, parent corporations, subsidiary corporations, successors, transferees, and any related entities, discharges the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal court, state court or administrative forum, including any claims arising out of this Agreement, by or on behalf of the Provider. 10. This Agreement is binding upon all parties and those identified in the above paragraph of this Agreement. 11. In the event that the Provider was a Medicaid provider at the time of the occurrences alleged in the administrative complaint, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any further sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 12, The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. The Provider’s representative has the legal capacity to execute the Agreement and has consulted with independent counsel. The Provider understands that counsel for the Agency represents solely the Agency and that counsel for the Agency has not provided any legal advice to, or influenced, the Provider in its decision to enter into the Agreement. 13. This Agreement contains and incorporates the entire understandings of the parties. This Agreement supersedes any prior oral or written agreements between the parties. This Page 4 of 5 Agreement may not be amended or supplemented except in writing. Any attempted assignment of this Agreement shall be void. 14. All parties agree that a facsimile signature suffices for an original signature. The following representatives acknowledge that they are duly authorized to enter into this Agreement. Elizabeth Deputy Se Agency for Health Care Administration Community Healthcare Center of Pensacola 2727 Mahan Drive, Bldg. #1 6770 North Ninth Avenue Tallahassee, Florida 32308 Pensacola, Florida 32504 DATED: Mf 7 2007 DATED: w\ | 04 COoUNAL 0 Grmun Reronice ht or nn : . Andrew T. Lavin, Esquj Office of the General Counsel Navon & Lavin, P.A. Agency for Health Care Administration Emerald Park Office Center 2727 Mahan Drive, Mail Stop #3 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 DATED: u/ 19]04 DATED: “4 Thomas M. Hoeler, Senior Attorney Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florig& 32708 DATED: Page 5 of 5
The Issue Whether Petitioner has standing to initiate the instant challenge to the preliminary determination to issue CON 6254 to Respondent Palms West Hospital, Inc.? If so, whether CON 6254 should be granted?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Palms West Hospital and Wellington Regional Medical Center are general acute care hospitals located five miles apart in western Palm Beach County, Florida (HRS District 9). Due to their proximity to one another, the two hospitals draw from essentially the same patient pool and, as a result, are close competitors. Early on, Wellington was well ahead of Palms West in terms of the number of patient days generated by the facility. Palms West, however, has since surpassed Wellington and now enjoys a slight edge over its competitor in this performance category. Wellington is licensed to operate a total of 120 beds. One-hundred and four of these licensed beds are acute care beds. The remainder are substance abuse beds. Of Wellington's 104 licensed acute care beds, approximately 45 or 46 are staffed. Wellington currently operates at 53% of its licensed total bed capacity and 49% of its licensed acute care bed capacity. During this past calendar year, Wellington has consistently operated at between 50 to 55% of its licensed total bed capacity. Palms West is now, and has been at all times material hereto, licensed to operate 117 acute care beds at its facility in District 9. At no time has Palms West been subject to a license revocation proceeding, nor has it filed any documents with HRS requesting a reduction in its licensed bed capacity. 1/ Palms West's initial license (License No. 1869) was issued on February 17, 1986. The license was effective February 14, 1986, and expired February 13, 1988. Prior to the issuance of License No. 1869, Palms West received a certificate of need (CON 1845) for 117 acute care beds in District 9. Palms West is currently operating under License No. 2701. License No. 2701 was issued on September 1, 1989, with an effective date of September 17, 1989, and an expiration date of September 16, 1991. The license provides, in pertinent part, that Palms West "is authorized to operate a Class I General hospital with 117 Acute beds." License No. 2701 was issued pursuant to a licensure renewal application submitted by Palms West. The application, which had been prepared in May, 1989, made reference to a "renovation" "[b]uilding program . . . in progress" at Palms West with an "[a]nticipated completion date [of] 8/89," but did not provide any additional information regarding the project. The "renovation" project referenced in the application involved the third and fourth floors of the hospital. Space on these floors was being converted to house an eight-bed Labor Delivery Recovery Program. By letter dated February 1, 1989, Palms West, through its Administrator, Paul Pugh, had requested a certificate of need exemption from HRS to initiate this obstetric program at an estimated cost of $1.2 million. Sharon Gordon-Girvin, the then administrator of HRS's Office of Community Health Services and Facilities, sent Pugh a letter, dated February 9, 1989, granting the requested exemption. Girvin explained in the letter that the exemption was being granted pursuant to Section 381.706(3)(f), Florida Statutes, which, she noted, "eliminates Certificate of Need review for initiation or expansion of obstetric services, provided that the licensed bed capacity 2/ does not increase." She also stated in the letter, among other things, that Palms West's "architectural plans [had to] be approved by the Office of Licensure and Certification, Plans and Construction, before construction is undertaken [to] assure conformance with licensure standards." In her letter, Girvin did not purport to authorize a decrease in Palms West's licensed bed capacity. Palms West's architectural plans were approved by Plans and Construction and work on the renovation project commenced. The project's progress was monitored by Plans and Construction. In or around August, 1989, the project was completed. The completed eight-bed obstetric unit occupied space that previously had been used to house 30 general acute care beds. As a result of the project, Palms West no longer had the space necessary to accommodate its licensed complement of 117 acute care beds. It had the physical capacity (hereinafter referred to as "constructed bed capacity") to house only 95 of its 117 licensed beds. Palms West, in undertaking this project, never intended to reduce the number of licensed beds at the facility. While it did not specifically so state in its exemption request, it had every intention of seeking authorization, "sometime soon after the [obstetric] unit was up and going," to expand its facility to accommodate the 22 licensed beds taken out of service as a result of the project. On August 18, 1989, Plans and Construction conducted an inspection of the completed project. The inspection revealed that the project had "permanently reduced" the constructed bed capacity of the facility from 117 to 95 beds. Nonetheless, Plans and Construction found the facility "to be in substantial compliance with the requirements of the licensure regulations." Accordingly, the project was approved for patient care. The first obstetric patient was admitted to the hospital on August 21, 1989. On November 14, 1989, Ira Wagner, an Architect Supervisor in Plans and Construction, sent the following letter to Palms West: 3/ On August 18, 1989 the Plans and Construction Section of the Office of Regulation and Health Facilities ran a final construction survey in your new obstetrical services project. Based on the survey results, we are able to release the area for occupancy. One requirement for the close-out documenta- tion for this type survey is a bed count iden- tifying the previous and new bed capacity. In order for this office to further clarify the information available during the referenced survey, this office would appreciate an in-depth bed count prepared by the facility and forwarded to us. The bed count format should include both the constructed bed count and the licensed capacity (not always the same) both prior and subsequent to this project. Further, the format should be on a floor and bed by bed designation basis. In response to this request, Pugh, on behalf of Palms West, sent Wagner a letter dated December 18, 1989. In his letter, Pugh provided a floor by floor "bed count" showing a total of "117 beds" "[p]rior to 8/18/89" and a total of "95 beds" "[s]ubsequent to 8/18/89" and "as of December, 1989." At Wagner's behest, Pugh sent Wagner a second letter to clarify and confirm the "bed count" figures given in the December 18, 1989, letter. This second letter, which was dated January 1, 1990, contained "bed count" information identical to that which had been reported in Pugh's first letter to Wagner. In neither letter did Pugh indicate whether the pre-8/18/89 and post-8/18/89 "bed counts" reflected licensed bed capacity or constructed bed capacity, or both. It was Pugh's unstated intention, however, to convey in these letters information regarding only the facility's constructed bed capacity. Wagner and Pugh communicated not only in writing, but by telephone as well. During one such telephone conversation, Wagner suggested that Pugh contact Girvin to seek guidance regarding what, if anything, the hospital should do now that its constructed bed capacity had been reduced to 95. Thereafter, Pugh followed Wagner's suggestion and telephoned Girvin. During their telephone conversation, Pugh and Girvin discussed the various alternative courses of action that were available to Palms West given the discrepancy between its licensed bed capacity (117) and its constructed bed capacity (95). Following their conversation, Girvin sent Pugh the following letter, dated January 18, 1990: I enjoyed talking with you by phone on Tuesday, January 9. Our conversation involved various options you have for complying with the licensure requirement that you have the capability for bringing all licensed beds into service within a 24 hour period. At the present time, the obstetrical program utilized existing space within the hospital for expan- sion. The effect was that 22 medical or surgical beds cannot be put into service within the time prescribed by law. Any change in licensed bed capacity is sub- ject to a certificate of need. (Reference Section 381.706(1)(e), F.S.) Therefore, Palms West has no authority to change its licensed bed capacity. Should a licensure inspection occur, the hospital may be found in violation if the 22 beds cannot be put into service. You have four options from which to choose: File a certificate of need application in the next hospital batch (letter of intent due no later than 5:00 p.m. local time on February 26, 1990) to reduce your licensed capacity by 22 beds; File a certificate of need application for a capital expenditure (expedited review) to seek authorization to construct capacity to house the 22 beds (due on or before May 15, 1990); File a letter seeking determination of reviewability if the proposed capital expend- iture to construct the capacity to house the 22 beds is below $1 million; or Do nothing to increase capability which would make the department file an administra- tive complaint to revoke the 22 beds. Based upon our discussion at the time, you found either option 2 or 3 to be the most appropriate one for you. It is similar to the situation at Doctor's Hospital in Coral Gables. I'm enclosing a copy of the corre- spondence between Doctor's Hospital and me. Option 3 would only be applicable if the esti- mated cost of constructing the 22 beds could be accomplished below the $1 million threshold. In my experience, 22 beds including the atten- dant and ancillary space and the equipment exceeds $1 million (especially if any land acquisition is involved.) The situation requires expeditious attention to the matter because the hospital may be found to be in violation. Therefore, I would like to work with you to avoid an adversarial relationship. To that end, the same agreement I reached with Doctor's Hospital is appropriate for Palms West. Please respond in writing by January 31 as to which of the options you will pursue. With any or all of them, I will be glad to discuss them with you or your representative. You may reach me at (904) 488-8673. In declining to take immediate action to institute disciplinary proceedings and instead providing Palms West the opportunity to bring its licensed bed capacity 4/ and constructed bed capacity into balance, HRS was following established non-rule policy and practice. 5/ Because the imbalance was the product of a renovation project that had been undertaken and completed with HRS approval and under its supervision, HRS believed that such a "wait and see" approach was particularly appropriate in the instant case. By letter dated February 2, 1990, Pugh informed Girvin that Palms West intended to pursue the second of the four options presented by Girvin in her January 18, 1990, letter. Pugh's letter read as follows: Thank you for your letter of January 18, 1989 [sic], regarding licensure requirements for Palms West Hospital. I appreciated the infor- mation relative to regulations compliance and the options my facility has at this time to maintain our current licensed capacity at 117 acute care beds. As you know, our recent obstetrical construc- tion project utilized existing space within the hospital for expansion. The effect was that 22 acute care . . . beds cannot presently be placed into service within the time [24 hours] prescribed by law. Accordingly, Palms West Hospital agrees to file a Certifi- cate of Need application for a capital expend- iture (expedited review) to seek authorization to construct capacity to house 22 beds. We agree to file the CON application on or before May 15, 1990. Please call or write my office for clarifica- tion, if necessary. I look forward to confir- mation of our request. Again, my apologies for the delay in our response. Thank you for your input and advice. A very short time after making its decision to exercise this option, Palms West hired a health planning consultant to assist it in preparing the certificate of need application. As promised, on May 11, 1990, Palms West filed the certificate of need application. The application was accompanied by a transmittal letter addressed to Girvin. The letter, which was signed by Palms West's health planning consultant, read as follows: Enclosed is the original copy of an applica- tion for Certificate of Need for the construc- tion of a 23-bed wing of acute care beds to replace a like number of licensed beds which are out of service at Palms West Hospital, Loxahatchee. This application is filed pursuant to an agreement between your office and Mr. Mike Pugh, administrator of the hospital. The filing fee of $10,000 is being submitted under separate cover on May 15, 1990 for attachment to this document, under agreement between Mr. Pugh and your staff. We look forward to working with you on the review of this document. Please contact me at this office for additional information you may need. Contrary to the statement made in the letter, only 22, not 23, of Palms West's licensed acute care beds were "out of service." One of the 23 licensed beds to be housed in the proposed new wing was to be relocated from an area of the existing facility that Palms West intended to convert into a telemetry unit. That bed was at the time of the filing of the application, and still is, operational. In Section I of the application, the project Palms West sought permission to undertake was described as follows: Replacement of existing licensed beds by construction of new bed wing on existing third floor of hospital. Section II of the application contained the following, more detailed description of the proposed project and its purpose: In 1989, in response to rapid service area growth and to local requests for high quality obstetrical service, the hospital opened an eight (8) bed LDRP obstetrical unit on its third floor. This unit and its support areas required conversion or remodeling of twenty-six (26) acute care bed spaces on the third floor. It also required use of another four (4) acute care bed spaces on the second floor for mechan- ical support systems for the C-section room in the third floor obstetrical unit. This reduced available bed space by twenty-two (22) beds. In early 1990, the hospital committed to con- vert one (1) bed space on the second floor to house telemetry equipment for the adjacent nursing unit. When this equipment is placed in service, it will reduce available bed space by an additional bed. As a result, Palms West Hospital will have temporarily lost the use of twenty-three (23) net bed spaces, or some 20% of its licensed bed capacity, in the development of expanded and improved services for patients of its service area. This application proposes to restore the hospital's available bed capacity to its current licensed bed level of one hundred seventeen (117) acute care beds. No addi- tional licensed beds or new services are proposed. The restoration of capacity will be accomplished through construction of a twenty-three (23) bed wing on the second floor of the hospital, containing seven private and eight semiprivate patient rooms. Construction should commence by May of 1991 and be completed by the end of September 1991. The estimated cost of the project is $1,560,888. All required funds will be provided by a cash grant from the applicant's parent company, so that the project itself will not adversely impact the hospital's rates and charges. The project is required if the hospital is to maintain the licensed capacity for which it received CON approval in 1984. Currently only ninety-four bed spaces can be made available for patient occupancy within 24 hours notice. In a high growth service area such as West Palm Beach County, it is not desirable for existing bed resources to be diminished. It is also not appropriate for the hospital to be penalized by reduction in licensure for the development of exempt and appropriate services which improve the quality of care and access to care in its service area. For these and other reasons, the administra- tion of Palms West Hospital and Sharon M. Gordon-Girvin of the Office of Community Health Services and Facilities agreed in early 1990 that the hospital should file this expedited CON proposal to restore its functional bed capacity to the original licensed level. Palms West's application was assigned CON Application No. 6254. In accordance with long-standing HRS non-rule policy and practice, the project proposed in the application was deemed to be a capital expenditure project reviewable only pursuant to subsection (1)(c) of Section 381.706, Florida Statutes, and, as such, it was subjected, not to a full batched comparative review, but to an expedited review that was applicant specific in nature. 6/ Full batched comparative review was considered inappropriate because Palms West was proposing to merely add space to its existing facility in order to accommodate licensed beds for which it had already successfully competed. Inasmuch as they were approved and licensed, these beds, under the bed need methodology established by HRS rule, were already included in the existing acute care bed inventory utilized to determine the number of additional beds, if any, needed in District 9 to meet projected demand (fixed need pool). 7/ Had Palms West's application been subjected to full batched comparative review, it would have been evaluated against this fixed need pool. In declining to subject the application to full batched comparative review, HRS also took into consideration that the bed space Palms West sought to restore had been lost as a result of the hospital's initiation of obstetric services. In the view of the agency, to subject such restoration projects to full batched comparative review would tend to discourage the development and expansion of obstetric programs in the state and therefore run counter to, what it perceived to be, the Legislature's intent in exempting obstetric services projects from certificate-of-need review. On August 17, 1990, following this expedited review of Palms West's application, HRS published a State Agency Action Report in which it announced its preliminary determination to issue the certificate of need requested in CON Application No. 6254.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health and Rehabilitative Services enter a final order (1) dismissing, for lack of standing, the petition filed by Petitioner in the instant case, and (2) issuing CON 6254 to Palms West. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. STUART M. LERNER 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 3rd day of July, 1991.
Conclusions Having reviewed the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration (hereinafter “the Agency”), finds and concludes as follows: 1. This matter involves an action in which the Agency denied the Petitioner’s renewal application for a home health agency license. (Ex. 1) 2. The Agency sought the denial of renewal of license based on: a. Survey ending May 6, 2008 included eight deficiencies b. Survey ending February 23, 2011 included three deficiencies, one of which was failure to be operational at the time of surveyors came to conduct an unannounced survey. The home health agency refused to provide the requested plan of correction to the Agency within ten days. c. Survey ending August 4, 2011 included four deficiencies. 3. On February 17, 2012, the above-styled matter was referred for a formal hearing to the Division of Administrative Hearings. The matter was held in abeyance pending an appeal in a related case regarding the revocation of this same license. On March 19, 2013, the Court of Appeal dismissed the Petitioner’s appeal upholding the Final Order revoking this license. On April 9, 2013, the Agency filed a Motion to Close Case and Relinquish Jurisdiction in this case. On April 11, 2013, Administrative Law Judge June C. McKinney entered an Order Closing File and Relinquishing Jurisdiction. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Notice of Intent to Deny is UPHELD. 2. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes, 3. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 1 Filed July 9, 2013 8:48 AM Division of Administrative Hearings 4. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED in Tallahassee, Florida, this Kx day of , 2013. Elizabeth Dudek, Secretary alth 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 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 correc ry So this apr er_was served on the below-named persons by the method designated on this "a ets , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Anne Menard, Unit Manager Facilities Intake Unit Health Care Clinic Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Nelson E. Rodney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Valerie Jeune Compass Home Health Agency for Health Care Administration 16635 NE 19" Avenue (Electronic Mail) Miami Beach, Florida 33162 (U.S. Mail) | June C. McKinney Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions Having reviewed the Amended Notice of Intent to Deny and Settlement Agreement, 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 Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny and Election of Rights form to the Petitioner. (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: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Petitioner’s license renewal application for assisted living facility licensure is withdrawn. 6. The Agency’s Amended Notice of Intent to Deny is moot and thus is withdrawn. 7. The Petitioner is responsible for any refunds that may be due to any clients. 8. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. Filed December 6, 2012 3:03 PM Division of Administrative Hearings 9. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this @ day of ; 2012. Elizabeth Didek, Secretary Agency for Hgalth Care Administration
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_cgpy of this Final Order was served on the below-named persons by the method designated on this £ tay of , 2012. Richard Shoop, Agency Cte Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Areas 5 and 6 Agency for Health Care Administration (Electronic Mail) David Selby, Esq. Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Amelia Cowles, Co-owner 80" Place 5551 80" Place Pinellas Park, FL 33781 (U.S. Mail) Christina Mesa, Esq. Mesa Law, PA PO Box 10207 Tampa, FL 33679 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. 3 (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. ae re RICK SCOTT RORDR ASENG! FORFEAIT CARE ADMINS HATS ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians INTERIM SECRETARY August 29, 2012 Administrator Gene Cowles so" Place P.O, Box 1778 Safety Harbor, FL 34689 RE: DOAH Case # 121-2641 AHCA Case # 2012007214 AMENDED “NOTICE OF INTENT TO DENY” Dear Administrator: It is the decision of the Agency for Health Care Administration (the “Agency”) that your renewal application for an Assisted Living Facility and initial Limited Mental Health specialty license to operate 80° Place be DENIED. This denial is based on the following: Your Standard license was due to expire on 20 May, 2012, and you had applied to renew it plus add a Limited Mental Health specialty license. On 14 February, 2012, the Agency, as required by law, attempted to conduct a biennial survey pursuant to re- licensure. No administrators, staff nor residents were present on that date when the surveyor arrived. , The Agency is required by law to inspect ALFs biennially for licensure renewal. Furthermore, these inspections are required by law to be unannounced. Finally, the Agency is required by law if unable to conduct the inspection to deny the renewal application. : Therefore, the following listed laws, but not limited thereto, require denial of your renewal application: F.S. 408, Part II, to include 408.806 (7) (a), (c)&(d) (re license application process) 408.811 (1) (a)&(b) (re right of inspection) 408.815 (1) (b)& (c) (re denial) * — Headquarters Area Office 2727 Mahan Drive 525 Mirror Lake Or. No., Tallahassee, FL 32308 Suite 330D AHCA.MyFlorida.com St. Petersburg, FL 33701 EXHIBIT 1 F.S. 429, to include 429.14 (1) (h)&(k) (re administrative penalties) 429.17(2) ;429.28(3) (a) (re renewal) , 429.28(3) (a)&(b) (re residents’ rights) 429.34 (re right of entry & inspection) Rule 58A-5.015,F.A.C. (re renewal) * The 3 July, 2012, Notice of Intent to Deny, mistakenly cited F.S. 408.15 (1) (b)&(c); the correct cite (408.815(1) (b)&(c))is listed above. EXPLANATION OF RIGHTS Pursuant to Section 120.569, Florida Statutes (F.S.), you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearing under Section 120.57(1), F.S., your request for an administrative Hearing must conform to the requirement in Section 28-106.201, Florida Administrative Code (F.A.C.), and must state the material facts you dispute. SEE ATTACHED ELECTION OF RIGHTS FORM Sincerely, Shaddrick A. ton, Manager Assisted Living Unit Bureau of Long Term Care Services Copies to: : Jan Mills, General Counsel Office, Tallahassee ‘Christina Mesa, Esq.,P.0.Box 10207, Tampa, FL 33679-0207 Assisted Living Unit, Tallahassee Paul Brown, AHCA, Supervisor, Area 5, St. Petersburg David Selby, AHCA, Assistant General Counsel, St. Petersburg STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 80" PLACE, Petitioner, : vs. DOAH CASE NO. 12-2641 AHCA NO. 2012007214 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Petitioner, 80" Place, and Respondent, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its duly authorized representatives, pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Petitioner is an assisted living facility (“ALF”) licensed pursuant to Chapters 408, Part IT and 429, Part I, Florida Statutes, and Chapter 58A-5, Florida _ Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Petitioner, pursuant to Chapters 408, Part i and 429, Part I, Florida Statutes; and WHEREAS, the Agency served Petitioner with a “Notice of Intent to Deny” (“NOI”) received on or about 9 July, 2012, and an “Amended Notice of Intent to Deny” on 6 September, 2012, both notifying Petitioner of the Agency’s intent to deny Petitioner’s license renewal application, and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and . NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: EXHIBIT 2 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Petitioner agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive _ compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4 Upon full execution of this Agreement, the parties stipulate: a. Petitioner’s request for a hearing in this cause is deemed withdrawn; b. Petitioner’s application for licensure renewal is also deemed withdrawn, and c. This cause shall be deemed dismissed as moot. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, neither party admits or denies the allegations set forth in the Amended NOI, and the Agency asserts the validity of the allegations raised in the Amended NOI referenced herein. 7. The Agency is not precluded from using the subject events identified in the Amended NOI for any purpose within the jurisdiction of the Agency. Further, Petitioner acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the Amended NOI. This Agreement does 2 not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, ° conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this . Agreement, by or on behalf of Petitioner or related facilities. 12 This Agreement is binding upon all parties herein and those identified in paragraph 1 of this Agreement. 13. In the event that Petitioner was a Medicaid provider at the subject time of the occurrence alleged in the Amended NOI, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. Petitioner has the capacity to execute this Agreement. 15. This Agreement contains and incorporates the entire understandings and agreements of the parties. ar eee a SF ee 16. This Agreement supersedes any prior oral or written agreements between the © parties. , 17, This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. . 18. —_ All parties agree that faxed and scanned signatures suffice for original signatures, The following representatives hereby acknowledge that they are duly authorized to enter - into this Agreement, consisting of the preceding 18 para, , stina. Mesa, Esq. Florida Bar No, 932388 MESA LAW, PA 2727 Mahan Drive . - PO Box 10207 Tallahassee, Florida 32308 Tampa, FL 33679-0207 Florida Bar no.; 932388 . For Petitioner . DATED: }2 [of L DATED: /0-(2-/2—- tuart F. Williams el Gene Cowles, Co-owner -or- General Counsel Amelia Cowles, Co-owner Agency for Health Cay9 Administration a ; bi ‘2727 Mahan Drive Ayilding #3 55 Place Tallahassee, Flog Pinellas Park, FL 33781 patep: / paren: 0-2-2 Wy A Edwin D. Selby, Assistant Florida Bar No. 262587 Agency for Health Care Administration $25 Mizror Lake Drive, Suite 330H St. Petersburg, FL 3870 DATED: _ /2L7 LO 02, eneral Counsel
The Issue The issues involved in this case, as stipulated to by the parties, are as follows: Issues Remaining to Be Litigated Again, because of their inability to separate the purely factual issues from those which also involve legal determinations, the parties have combined below all issues which remain to be litigated. 1A. Was it proper for DHRS to compute the formula for need contained in FACs 10- 5.11(25)(a)1-3 on a subdistrict basis? 1B. Even if the answer is "yes", did DHRS properly use the result of such a computation as a reason for denying Charter- Ocala's application in this case? 2A. Was it proper for DHRS to take into account both existing and approved beds in computing the occupancy standard formula contained in FACs 10-5.11(25)(d) 5? 2B. Even if the answer is "yes," did DHRS properly use the results of such a computation as a reason for denying Charter- Ocala's application in this case? Does the level of Charter-Ocala's indigent care commitment cause its application not to fully meet the requirement in subsection 8 of Fla. Stat. s 381.494(6)(c) that the proposed services "be accessible to all residents of the service district"? Is the proposed project financially feasible in the long term? Will the proposed project result in an increase in health care costs? In light of all factors, should Charter-Ocala's application be granted?
Findings Of Fact GENERAL Procedural. On or about October 15, 1985, the Petitioner filed an application for a certificate of need with the Respondent. On or about December 26, 1985, the Petitioner filed amendments to its application. On or about February 27, 1986, the Respondent issued a State Agency Action Report proposing to deny the Petitioner's application. On March 27, 1986, the Petitioner filed a Petition for Formal Administrative Hearing with the Respondent. The Petition was forwarded to the Division of Administrative Hearings and was assigned case number 86-1466. On November 12, 1986, the parties filed a Prehearing Stipulation in which they agreed to certain facts and conclusions of law. The facts agreed upon by the parties are hereby adopted as findings of fact. The Parties. The Petitioner is a free-standing 68-bed short-term psychiatric and substance abuse specialty hospital located in Ocala, Florida. The 68 beds consist of 48 short-term psychiatric beds and 20 substance abuse beds. The Petitioner began operating on October 17, 1985. The Respondent is the agency responsible for determining whether the Petitioner's proposal should be approved. The Petitioner's Proposal. In its application, the Petitioner has proposed an expansion of its existing 48 short-term psychiatric beds by 24 beds. The Petitioner proposed that the 24 additional beds consist of 10 beds in a geriatric psychiatric unit and 14 beds in an adult psychiatric unit. The total proposed cost of the additional beds was $1,491,850.00. The Petitioner amended the total proposed cost to $1,213,880.00 on December 26, 1985. At the final hearing, the Petitioner represented that it will operate an adult eating disorder program in the new 14-bed psychiatric unit. NEED FOR ADDITIONAL SHORT-TERM PSYCHIATRIC BEDS. A. General. The Petitioner's existing facility for which additional beds are sought is located in Ocala, Marion County, Florida. Marion County is located in the Respondent's planning district 3. District 3 consists of Alachua, Bradford, Citrus, Columbia, Dixie, Gilchrist, Hamilton, Hernando, Lafayette, Lake, Levy, Marion, Putnam, Sumter, Suwannee and Union Counties. The existing providers of short-term psychiatric services in district 3 in addition to the Petitioner consist of Alachua General Hospital, Shands Teaching Hospital, Lake City Medical Center, Munroe Regional Medical Center and Lake Sumter County Mental Health Clinic. The District III Health Plan divides the district into 2 subdistricts: southern and northern. The southern subdistrict includes Citrus, Hernando, Lake, Marion and Sumter Counties. The northern subdistrict consists of Alachua, Bradford, Columbia, Dixie, Gilchrist, Hamilton, Lafayette, Levy, Putnam, Suwannee and Union Counties. Marion County is located in the northern portion of the southern subdistrict. Ocala, which is located in the northern portion of Marion County is approximately 20 miles from the border of the subdistricts. B. Rule 10- 5.011(1)(o), Florida Administrative Code. The projected population of district 3 in 1990 is 972,450. Based upon the projected population of district 3 in 1990, there is a gross need for 340 short-term psychiatric beds for district 3 in the relevant planning horizon year 1990. There are 316 licensed and approved short-term psychiatric beds for district 3. There is a net need for 24 short-term psychiatric beds for district 3 in 1990. Of the 316 licensed and approved short-term psychiatric beds located or to be located in district 3, 149 are located in hospitals holding a general license and 167 are located in specialty hospitals. Multiplying the projected 1990 district 3 population by a ratio of .15 beds per 1,000 population indicates a gross need for 146 short-term psychiatric beds in hospitals holding a general license. There will be a net surplus of three beds located in hospitals holding a general license in 1990 (146 beds needed less 149 licensed and approved beds). Multiplying the projected 1990 district 3 population by a ratio of .20 beds per 1,000 population indicates a gross need for 194 short-term psychiatric beds which may be located in specialty hospitals. There will be a net need of 27 beds which may be located in specialty hospitals (194 beds needed less 167 licensed and approved beds). The approval of the Petitioner's proposal will not create an imbalance between specialty beds and general beds in district 3 for 1990. There is sufficient need for additional beds in district 3 for approval of the Petitioner's proposal. Occupancy. Objective 1.2 of the State Health Plan provides: dditional short-term inpatient hospital psychiatric beds should not normally be approved unless the average annual occupancy rate for all existing and approved adult short-term inpatient psychiatric beds in the service district is at least 75 percent ... [Emphasis added]. The occupancy rates in 1985 for the existing short-term psychiatric beds in district 3 were as follows: Facility Beds Occupancy Alachua General Hospital 30 77.5 percent Shands Teaching Hospital 42 77.8 percent Lake City Medical Center 9 69.2 percent Munroe Regional Medical Center 18 56.4 percent Lake/Sumter County Mental Health 18 88.0 percent. The average occupancy rate for the existing facilities listed in finding of fact 27 is 75.5 percent. There are 151 short-term psychiatric beds approved for district 3 which are not yet operational. The occupancy rate of the existing and approved beds of district 3 is less than 75 percent. The approved beds should be assumed to have a 0 percent occupancy since they are not in use. Planning Guideline 2 of the District III Health Plan provides: Additional inpatient psychiatric services should not be developed until existing or approved services reach the occupancy standards Specified in the State Inpatient Psychiatric ... Rule. The occupancy standard Specified in the State Inpatient Psychiatric Rule is 75 percent. It is reasonable to expect that approved beds will affect existing occupancy rates when the beds become operational. Consumer demand for short-term psychiatric beds cannot expand indefinitely to meet supply. Since 48 percent of the licensed and approved beds for district 3 are approved beds, it does not make sense to ignore approved beds. Applying the occupancy standard on a subdistrict basis, licensed beds in the southern subdistrict had an average occupancy rate of 72.2 percent for 1985 (excluding the Petitioner's existing beds). If the 51 approved beds at Community Care of Citrus, 35 approved beds in Hernando County and the 15 approved beds at Lake/Sumter Mental Health are taken into account, the occupancy rate is Substantially lower. The Petitioner's proposal does not meet the occupancy standards of the state health plan or the district health plan (on a district or subdistrict basis). Subdistrict Allocation of Bed Need. Planning Guideline 4 of the District III Health Plan provides: Needed inpatient psychiatric ... beds will be allocated within the District based on the proportion of need generated in each planning area using the State methodology. The northern and southern subdistricts are the appropriate planning areas under the district health plan. The projected population for the southern subdistrict for 1990 is 549,536. Applying the state methodology to the southern subdistrict, there will be a gross need for 192 short-term psychiatric beds in 1990. Subtracting the 84 licensed and 101 approved beds yields a net need for 7 short-term psychiatric beds for the southern subdistrict for 1990. Of the 192 gross beds needed for the southern subdistrict in 1990, 82 should be located in hospitals holding a general license and 110 may be located in specialty hospitals. There are 66 licensed and 101 approved beds located or to be located in specialty hospitals in the southern subdistrict. Therefore, under the district health plan, there will be a surplus of 57 short-term psychiatric beds located in specialty hospitals in the southern subdistrict in 1990. All existing and approved short-term psychiatric specialty hospitals for district 3 are or will be located in the southern subdistrict; there are no specialty hospitals located or approved for the northern subdistrict. The Petitioner is the closest specialty hospital to the northern district. There is insufficient need for the Petitioner's proposal in the southern subdistrict of district 3 under the district health plan. Until December, 1985, or early 1986, the Respondent's policy and practice was to apply the need formula of Rule 10-5.11(25)(d), Florida Administrative Code, on a district-wide basis, not on a subdistrict basis. In approximately December, 1985, or early 1986, the Respondent implemented a new policy of reviewing the need for proposed short-term psychiatric services on a subdistrict basis in the applicable district health plan recognized subdistricts. This new policy was based upon a new interpretation of existing statutes and rules. Specifically, the Respondent relied upon Rule 10-5.011(1), Florida Administrative Code, and Section 381.494(6)(c)1, Florida Statutes, which direct an evaluation of the relationship between proposed services and the applicable district health plan in reviewing certificate of need applications. The evidence failed to prove: (a,) when the policy was formulated; (b) who was responsible for the formulation and implementation of the policy; and (c) whether any sort of investigation, study or analysis was performed or relied upon in connection with the policy. The effect of this policy can be outcome-determinative in that it can cause an application for a certificate of need to be denied. Prior to the adoption of the policy, the Respondent Promulgated Rule 10-17, Florida Administrative Code, which Provided for sudistricting of district This rule was repealed. Geographic Access. A small portion of the population of district 3 is within a maximum travel time of 45 minutes from the Petitioner's facility. Only 36 percent of the district 3 population is within 45 minutes driving time from the Petitioner's facility. The Petitioner's facility is located near the center of district 3. Approximately 60 percent of the population of district 3 is located within 60 minutes travel time from Ocala. There are excellent transportation routes from parts of the northern subdistrict to Ocala, including Interstate Highway 75 and U.S Highways 27, 301 and 441. Approximately 73 percent of the Petitioner's Patients during its first year of operation came from the southern subdistrict. Of those Patients, approximately 58 percent were from Marion County and 15 percent were from other southern subdistrict counties, including 10.5 percent from Citrus County and none from Hernando County. Approximately 15 percent of the Petitioner's patients during its first year of operation came from the northern subdistrict: 8 percent from Alachua County, 1.7 percent from Putnam, 1.2 percent from Bradford, .2 percent from Union, Suwannee and Gilchrist, .7 percent from Columbia and none from Hamilton, Lafayette, and Dixie. Approximately 12 percent of the Petitioner's patients during its first year of operation came from outside of district 3. Other Factors Approximately 16 percent to 17 percent of Marion County's population was 65 years of age or older in 1980. By 1990, the 65 and older population is projected to increase to approximately 22 percent. Approximately 28 percent of the population of the southern subdistrict is projected to be 65 or older in 1990. Top of the World, a retirement community, is being developed 10 to 15 miles from the Petitioner's present location. There is a large population of females aged 18 to 30 attending the University of Florida. The University is located in Gainesville which is within a 40 to 50 minute drive time from the Petitioner's present location. There are over 83,000 females aged 15-44 residing in Alachua and Marion Counties. Young adult females have the highest incidence of eating disorders such as bulimia and anorexia. From a clinical and programmatic perspective, to provide optimal therapy for geriatric and eating disorder patients: (1) the patients should be separated from the general psychiatric population; (2) the staff should be specially trained to deal with the unique problems posed by the two types of patients; and (3) the program and physical surroundings should be specially designed to accommodate the needs of the patients and to facilitate the rendition of services to patients. The Petitioner represented in its application that the Petitioner has a 16-bed geriatric program. Munroe Regional and Marion-Citrus Mental Health Center and Lake/Sumter Mental Health Supported the Petitioner's original application for its present facility based in part on the Petitioner's representation that 16 beds would be designated as geriatric beds. A facility for Citrus County with 51 beds has been approved which will have a gerontology program. In Hernando County 35 beds have been approved which includes a gerontology program. Seven letters of Support were submitted with the Petitioner's application. Only one of those letters mentions geriatric beds. No mention of an alleged need to provide an eating disorder program was mentioned by the Petitioner in its application. Eating disorder patients are treated at Shands in Gainesville, Alachua County, Florida. There are no existing or approved Specialized geriatric or eating disorder programs in district 3. The Petitioner Should be able to recruit physicians and other medical professionals to staff its proposed programs. ECONOMIC ACCESS. The Petitioner's admissions criteria include the ability to pay. The Petitioner has projected that 1.5 percent of patient revenues from the operation of the 24 additional beds will be attributable to indigent care. This amount is low. Applicants generally propose 3 to 7 percent indigent care. Generally, Short-term psychiatric Services are accessible to all residents of district 3. The evidence failed to prove, however, that short-term psychiatric Services in specialty hospitals are readily accessible to indigent residents. Munroe Regional Medical Center and Lake/Sumter County Mental Health provide psychiatric services to indigents. Lake/Sumter was recently granted a certificate of need authorizing it to move to Leesburg and to expand its hospital to include 33 short-term psychiatric beds which will be devoted almost exclusively to the treatment of indigents. These facilities are not specialty hospitals, however. The Petitioner's projected care of indigents does not include free evaluations and assessments provided at the Petitioner's counseling centers. In light of the fact that the Petitioner takes into account the ability to pay, however, this service will not significantly increase the care provided to indigent patients or accessibility of services to indigents. During the Petitioner's first year of operation it provided indigent care of approximately 4 percent of total revenues. It is therefore likely that the Petitioner will exceed its projected 1.5 percent indigent care. The Petitioner did not prove how much of an increase can be expected, however. The Petitioner has a corporate policy never to deny admission to a patient in need of emergency treatment because of inability to pay. The Petitioner's proposal will not significantly enhance services available to indigents. FINANCIAL FEASIBILITY AND IMPACT ON COSTS. 8O. If the Petitioner's proposal is considered based upon the need for additional beds in the district, it will be financially feasible. Its projected patient day projections are reasonable based upon district-wide need. If need is determined only on a district-wide basis, the opening of approved beds will not negatively affect the Petitioner's referral patterns or patient base. If need is determined only on a district-wide basis, the cost of psychiatric services in district 3 will not be negatively impacted by the Petitioner's proposal. If need is determined on a subdistrict basis, the Petitioner's proposal will not be financially feasible. There is insufficient need in the southern subdistrict for the Petitioner to achieve its patient day projections on a subdistrict basis. Planning Guideline 6 of the District III Health Plan provides: Providers proposing to expand or establish new psychiatric facilities should document that these services will not duplicate or negatively affect existing programs in the region. In light of the existence of an excess of 57 short-term psychiatric beds for the southern subdistrict based upon a subdistrict allocation of bed need, the Petitioner's proposed new beds will duplicate beds in existence or approved beds. If need is determined on a subdistrict basis, the cost of psychiatric services in the southern subdistrict will be negatively impacted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for the addition of 24 short- term psychiatric beds be approved. DONE and ORDERED this 13th day of March, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1987. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ". Petitioner's Proposed Findings of Fact: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 7, 9-10 and 12. 2 RO 13-14. 3 RO 13 and 16. 4 RO 17. 5 RO 51. 6 RO 54 and 61. 7 RO 54. 8-10 Irrelevant. 11 RO 58-59. 12 RO 59. 13 The first sentence is accepted in RO 60. The second sentence is irrelevant. 14 RO 61-63. 15 Irrelevant. 16 RO 20 and 22. 17 RO 43. 18 RO 19. 19 RO 19-21. 20 RO 23. 21 RO 24. 22 RO 28. The last sentence is irrelevant. 23 RO 1, 9-10 and 12. 24 Irrelevant. It has been stipulated that the quality of care criterion has been met. 25 RO 64. 26 RO 71. The first sentence is accepted in RO 70. The second sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 29-30 Irrelevant. 31 RO 55-56. 32 RO 74. RO 75. The last sentence is not supported by the weight of the evidence. RO 73 and 76. The Petitioner did not commit to provide 1.5 percent of total revenues it committed to provide 1.5 percent of revenues from the 24 beds. The last sentence is irrelevant. 35 RO 77. 36 RO 78. 37 Not supported by the weight of the evidence. 38-39 and 41 If need is determined on a district- wide basis these proposed findings of fact are true. If, however, need is determined on a subdistrict basis these proposed findings of fact are not supported by the weight of the evidence. See RO 80 and 83. 40 Irrelevant. 42-44 Cumulative. See RO 80 and 83. 45 and 46 Not supported by the weight of the evidence. 47-48 Irrelevant. If need is determined on a district-wide basis these proposed findings of fact are true. If, however, need is determined on a subdistrict basis these proposed findings of fact are not supported by the weight of the evidence. See RO 82 and 85. Irrelevant. The first sentence is statement of the law. The last sentence is irrelevant. This is a de novo proceeding. How the Respondent reached its initial decision is irrelevant. The rest of the proposed finding of fact is accepted in RO 50. Statement of law. 52 RO 45. 53 RO 46. 54 RO 47. 55 Irrelevant. 56 RO 48. 57 RO 49. Irrelevant. Conclusion of law. Irrelevant. 61-62 Prehearing Stipulation. Irrelevant. The parties have stipulated that the portion of the rule mentioned in the first sentence is met. The proposed finding of fact is also a discussion of law. It is therefore rejected. 65-67 Consideration of the state health plan is statutorily required. The Respondent does not apply the occupancy standard of the state health plan as a matter of policy, therefore. These proposed findings of fact are therefore irrelevant to the extent that they apply to the determination concerning the state health plan. To the extent that they pertain to the occupancy standard of the district health plan, they are hereby adopted. Conclusion of law. Irrelevant. The first sentence is irrelevant. The second sentence is contained in the Prehearing Stipulation as a stipulated fact. 71 RO 30. 72 Irrelevant and conclusion of law. 73-82 Irrelevant. Respondent's Proposed Findings of Fact 1 RO 1, 3-4, 9 and 11 2 RO 7 and 13. 3 RO 19. 4-6 Prehearing Stipulation. 7 8 and 9 RO 26. RO 27-28. The last sentence is 10 contrary to the facts stipulated to by the parties. The parties have stipulated that existing beds meet the occupancy standard. This proposed finding of fact is therefore unnecessary. RO 29. 11 RO 30 and 32-33. 12 RO 31. 13 RO 16 and 36. 14 RO 34. 15 RO 37-41. There are 84 licensed beds not 81. 16-17 Irrelevant. 18 RO 55-56. The evidence established that "at least" 73 percent of the Petitioner's patients originate from the southern subdistrict not that more than 73 percent. 19 RO 43. 20 Hereby accepted. 21 RO 51. RO 10 and 64. The first sentence is accepted in RO 65. The rest of the proposed finding of fact is uncorroborated hearsay. 24 RO 67. RO 12 and 68. Irrelevant or based upon uncorroborated hearsay. Not a finding of fact. Not supported by the weight of the evidence. 29 RO 84-85. 30 Statement of law. 31 RO 72-73. 32 RO 85. 33 RO 83. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandra Stockwell, Esquire Culpepper, Pelham, Turner & Mannheimer 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302-3300 J. Kevin Buster, Esquire Ross O. Silverman, Esquire King & Spalding 2500 Trust Company Tower Atlanta, Georgia 30303
