The Issue Whether or not Petitioner's lease acquisition costs should be included in its asset cost basis for establishment of a Fair Rental Value reimbursement rate in accordance with the Florida Title XIX Long Term Care Reimbursement Plan (the Medicaid Plan).
Findings Of Fact Respondent Agency for Health Care Administration (AHCA) is the state agency responsible for implementation and administration of the Florida Medicaid Program. Its predecessor agency was the Department of Health and Rehabilitative Services (HRS), and HRS' acts with regard to Petitioner and Medicaid reimbursement may be attributed to AHCA for purposes of this proceeding. Cedar Hills Nursing Center, owned by Americare Corporation, is a licensed 180-bed nursing home located in Jacksonville, Florida. Cedar Hills participates in the Florida Medicaid Program and provides inpatient nursing home services to Medicaid eligible persons. Cedar Hills is entitled to reimbursement for certain approved property related costs in accordance with the Florida Title XIX Long Term Care Reimbursement Plan (Medicaid Plan), which was adopted and incorporated by reference in Rule 10C-7.0482 F.A.C. One of the methods of property cost reimbursement under the Medicaid Plan is the Fair Rental Value System (FRVS). FRVS reimbursement requires the establishment of a basis for computation and indexing of the FRV rate. Cedar Hills, as an existing facility at October 1, 1985, is entitled to have an FRVS rate established for capitalized tangible assets based upon the assets' acquisition costs at the last dates of acquisition prior to July 18, 1984. (See Conclusions of Law 36, 39) Essentially, FRVS determines the historic allowable costs for assets related to a facility (nursing home) as of the last acquisition cost prior to July 18, 1984, and establishes a base cost or value. This base cost, or value, is indexed (inflated) forward and becomes the basis for computing FRVS reimbursement. The computation is "facility-specific," since a particular provider- chain may own multiple facilities. Thus, no rate is assigned a chain (Americare herein), but rather, the rate is assigned to the facility, in this instance, Cedar Hills Nursing Center. AHCA refused to include in Cedar Hills' asset cost for FRVS the lease and option acquisition costs relating to Cedar Hills which were paid by Americare Corporation in 1980 as a part of a purchase of a group of Florida nursing homes, including Cedar Hills. Effective March 1, 1980, Americare Corporation purchased from Chelsea Park Corporation and Hyde Park Nursing Home Partnership (HPNH, Inc.), a subsidiary of Chelsea Park Corporation, all business assets of the sellers relating to six Florida nursing homes. Cedar Hills was one of the six nursing homes. The total purchase price was $5.7 million. This asset acquisition included the sellers' interest in a lease of the Cedar Hills facility. Americare did not purchase the Cedar Hills facility outright, and title did not pass to Americare d/b/a Cedar Hills in 1980. At the time of the 1980 asset acquisition, title to the land and building at Cedar Hills was held by HPNH, Inc.. Prior to March 1, 1980, HPNH, Inc. was the licensed operator and Medicaid provider at Cedar Hills pursuant to an assignment of lease rights from its parent, Chelsea Park Corporation. After March 1, 1980, Americare Corporation became the licensed operator and Medicaid provider at Cedar Hills. The license issued by the Department of Health and Rehabilitative Services, Office of Licensure and Certification, to HPNH, Inc., prior to March 1, 1980, shows "HPNH, Inc., owner", as the licensed operator. The official license issued by the Department of Health and Rehabilitative Services, Office of Licensure and Certification, effective March 1, 1980, shows "Americare Corporation, Owner" as the licensed operator. The 1980 asset acquisition included the acquisition by Americare of tangible assets at Cedar Hills. The Chelsea Park Corporation accounting records prior to the Americare asset acquisition reveal tangible assets relating to Cedar Hills which were being depreciated. Americare's Medicaid Cost Reports for Cedar Hills for the period immediately following the 1980 transaction show tangible assets relating to Cedar Hills which were being depreciated by Americare. The transaction Agreement between Americare and Chelsea Park expressly provided for Americare to acquire "business assets" of Chelsea Park, which assets included not only the lease agreement for Cedar Hills but also operating assets specified as "all fixtures attached to either real estate or leasehold property, all machinery, linen, personal property, equipment, handling equipment, furniture, furnishings and accessories thereto, . . ." These "operating assets" are listed on Exhibit 4 to the Agreement (Petitioner's Exhibit 3) and clearly include tangible assets relating to Cedar Hills. The expert witness testimony is consistent that the lease-option (Lease is Respondent's Exhibit R-1) constituted "the moral equivalent of a virtual purchase" of the facility. Acquisition costs are determined from the most current depreciation schedules for the facility. In this case, the facility is Cedar Hills. Cedar Hills properly capitalized the aforesaid lease and option acquisition costs and reflected them on its depreciation tables. The parties' dispute herein hinges upon interpretation of Section V. E. (1) (a) of the Medicaid Plan, and whether or not the lease rights purchased in 1980 by Americare constituted a tangible or an intangible asset, and whether or not the lease and option constituted an "acquisition," as Petitioner contends, or whether, as Respondent contends, only passage of title by purchase can constitute an "acquisition," as that term is contemplated by that section of the Medicaid Plan. That section of the Medicaid Plan incorporates by reference HCFA-PUB.15-1 (the Medicaid Provider Reimbursement Manual), and all testifying experts agreed that if there is a conflict, the Medicaid Provider Reimbursement Manual takes precedence over generally accepted accounting principles and standards (GAAP and GAAS) for purposes of Medicaid accounting. The parties stipulated that, "The costs of land, buildings, equipment, and other capital items allowable for Medicaid reimbursement by HCFA-PUB.15-1 such as construction loan interest expense capitalized, financing points paid, attorneys fees, and other amortized "soft" costs associated with financing or acquisition are included in determining allowable acquisition costs in establishing the FRVS rate. (See, Conclusions of Law 39, 46-47) Cedar Hills contended that lease and option acquisition costs are "soft costs." AHCA's expert agreed that lease and option acquisition costs may be considered "soft" costs in certain instances and that financing and refinancing costs are "soft costs". Respondent AHCA contended that the lease rights purchased by Americare constituted an intangible asset and could not be included as part of the FRVS base unless those rights related to the acquisition of a capitalized tangible asset. The Medicaid reimbursement for Cedar Hills will be lower if the lease acquisition costs are not included in the asset cost basis. As a part of a Medicaid audit report in 1981 after the 1980 asset acquisition, HRS allocated $619,224.88 to that portion of the transaction relating to Cedar Hills. The cost allocated by HRS to Cedar Hills included an allocation for tangible assets and soft costs. The soft costs allocated to Cedar Hills are $448,659.00, which are the costs allocated to the acquisition of the lease and option rights relating to Cedar Hills. Over the 1980-1993 period, Cedar Hills amortized the $448,659.00 of lease rights costs on its books and on its cost reports. (See J-3 of Petitioner's Exhibit 7). This treatment was permissible under pre-FRVS cost reimbursement principles which allowed costs of a lease to be covered in property costs. HRS (Medicaid) reimbursed Cedar Hills for its amortization of lease rights costs and, in addition, reimbursed a return on equity payment on the unamortized portion of these costs. HRS never indicated any disagreement with Americare's treatment of the lease acquisition costs as capital items. Americare possessed only a lease with an option to purchase from 1980 to 1993. Legal title to the Cedar Hills facility was not conveyed by its owner, HPNC, Inc., to Americare Corporation until April, 1993. After amortizing the lease costs of $448,659.00 over the 13-year period that Cedar Hills leased the Cedar Hills facility, Cedar Hills requested that such costs be included in its FRVS basis. Cedar Hills is not seeking any costs in excess of the actual costs it paid to acquire the lease and option. It is seeking to include those costs as part of its base upon which future Medicaid reimbursement calculations for the Cedar Hills facility shall be made. At the time Cedar Hills was first leased in 1980, there was no requirement that Americare exercise its option to purchase the facility. The lease of Cedar Hills by Americare was not a condition precedent to the purchase of the group of other facilities which were purchased by Americare simultaneously with the leasing of Cedar Hills. However, it would not have been possible for Americare to become the operator of Cedar Hills Nursing Center without acquiring both the tangible assets and the lease agreement relating to Cedar Hills' physical plant. Acquisition by Americare of the lease rights was necessary in order for Americare to be able to use the Cedar Hills assets for nursing home purposes. The lease acquisition costs relating to Cedar Hills were associated with the acquisition of approximately $90,000 worth of capital assets, some of which, such as furniture, were clearly personalty, but some of which were "fixtures," specifically, kitchen dietary equipment, laundry machines, and plumbing which had been integrated into the leased building. FRVS determines the basis for allowable capitalized tangible assets and for certain intangible costs which in and of themselves are not tangible assets but which are allowed in the FRVS basis so long as they pertain to the acquisition of tangible assets. Examples are attorneys' fees and accountants' work associated with purchase of a facility which are normally capitalized along with the facility when purchased. Soft costs are intangible costs, in that they are capital costs for something that cannot be physically touched. Basically, they are costs associated with an acquisition which are paid in the normal course of an acquisition. Stated differently, soft costs are intangible type costs that are related to tangible assets. GAAP and GAAS would characterize Petitioner's lease in this situation as a "capitalized lease" and permit all its "soft costs" to be handled as they have been. AHCA's audit to determine a FRVS base used documentation submitted by Petitioner, including depreciation schedules. AHCA considered the lease- purchase to be an "intangible." AHCA agrees that lease and option acquisition costs may be considered "soft" costs in certain instances, but not this one. Petitioner contended that lease and option acquisition costs are "soft" costs and should be included in this instance. All costs incurred by the legal owner in acquiring tangible fixed assets, including related soft costs, have been included in the FRVS base established by AHCA. The FRVS audit report allowed only $1,138.00 as acceptable additions to the FRVS base in the rate semester that the lease was acquired by Americare based on costs incurred by the legal title holder or by Americare in purchasing tangible fixed assets, including soft costs, but Americare's soft costs associated with the lease acquisition were not included.
Recommendation Upon the foregoing findings of fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration include the lease acquisition costs of $448,659.00 in Petitioner's asset cost basis for establishment of its Fair Rental Value System reimbursement rate. RECOMMENDED this 3rd day of April, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto 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 April, 1994. APPENDIX TO RECOMMENDED ORDER 93-4262 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-6 Accepted, but often rephrased 7 Rejected as legal argument or a conclusion of law. Covered under Conclusions of Law 8-20 Accepted, but often rephrased 21 Accepted as modified in Findings of Fact 31-32. Otherwise rejected as a conclusion of law. See Conclusions of Law. 22-28 Accepted except often rephrased. Also cumulative material was eliminated. Rejected as legal argument or as a conclusion of law. See Conclusions of Law Accepted 31-32 Rejected as legal argument or as a conclusion of law. See Conclusions of Law Respondent's PFOF: 1-7 Accepted, but often rephrased. Also, cumulative material was eliminated. 8 Rejected as legal argument or as a conclusion of law. See Conclusions of Law. 9-15 Accepted, but often rephrased. Also cumulative material was eliminated. Rejected as inaccurate or as a mischaracterization of the record evidence as a whole. Accepted, but rephrased. Accepted that only one audit was done for FRVS purposes, however prior yearly cost report approvals were, in essence, HRS mini-audits of the provider's claimed reimbursements. Therefore, the proposal as worded is rejected as a whole. 19-21 Accepted, but rephrased. Rejected as not supported by the greater weight of the credible evidence. Rejected as cumulative COPIES FURNISHED: Harold Knowles, Esquire Knowles & Randolph 528 E. Park Avenue Tallahassee, FL 32301 Alfred W. Clark, Esquire Post Office Box 623 Tallahassee, FL 32302 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, FL 32303 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, the City of Crystal River, is required to report Myrl David Sallee as a member of the Senior Management Services Class (SMSC) of the Florida Retirement System (FRS) for the period from June 7, 1999, through July 2000, and remit the required contributions for that period.
Findings Of Fact The Petitioner, the City of Crystal River (City) is a Florida municipal corporation which has elected to participate in the Florida Retirement System (FRS). The Respondent is an agency of the State of Florida charged with administering the Florida Retirement System and enforcing the statues and rules which pertain thereto. On June 7, 1999, the City hired Myrle David Sallee as its City Manager, pursuant to a written contract which required Mr. Sallee to begin his employment on that date. The City's contract with Me. Sallee provided, "City shall contribute an amount equal to 24 percent of salary to agreed upon retirement plan in lieu of city retirement." The term "city retirement" refers to the FRS, of which the city normally was a participating member. Upon commencement of his employment, Mr. Sallee elected to have his city retirement contributions paid into a retirement plan operated and managed by the International City Manager's Association (ICMA) and the city agreed. From the date of his employment with the city until his employment terminated on June 6, 2001, the city made the required 24 percent contributions for Mr. Sallee to the ICMA plan. Mr. Sallee's position as city manager was one which is required to participate in the FRS Senior Management Service Class pursuant to Section 121.055(1)(b)1, Florida Statutes, and Rule 60S-1.0057(1)(c)2, Florida Administrative Code. Persons in such a position may, however, elect to withdraw from the FRS altogether, pursuant to Section 121.055(1)(b)2, Florida Statutes. There is no rule that corresponds to such an unconditional withdrawal; however, Rule 69S-1.0057(2)(c), Florida Administrative Code, provides that some person eligible to participate in the Senior Management Service Class of the FRS, including city managers, may elect to participate in a lifetime annuity program provided by their employer, in lieu of being a member of the FRS Senior Management Service Class. Local government employees participating in the FRS Senior Management Service Class are obligated by Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, to complete and file with the division a form SMS-3 and a form FRS-M10. Pursuant to Rule 60S-1.0057(3)(b)2, Florida Administrative Code, the election to withdraw from the FRS altogether and participate in an employer-provided lifetime annuity program is also made by filing a form SMS-3. According to Rule 60S-1.0057(2)(c)1, such an election is effective the first day of the month following the month in which the form SMS-3 is received by the Division. Mr. Sallee was unaware of his obligation to participate in the FRS until July 7, 2000, at which time he completed and filed with the Division a form SMS-3. In his form SMS-3, Mr. Sallee elected to withdraw from the FRS and participate in an employer-provided annuity program instead. Mr. Sallee never did file with the Division a from FRS- M10. The City made a required FRS contribution for Mr. Sallee for July of 2000, but no other. On November 20, 2000, the Division notified the City, by letter, that FRS contributions were due for Mr. Sallee from the date of his employment, June 7, 1999, until the effective date of his election to withdraw from the FRS, August 1, 2000. By various telephone calls and letters, the City informed the Division of its position and requested relief from making the contributions payments that the Division claimed were due. On September 30, 2002, the Division notified the City, by letter, that it had not changed its position and that the letter of that date constituted final agency action, to the effect that the Division was maintaining its claim that the City owed the contribution payments at issue. Rule 60S-1.002(2), Florida Administrative Code, provides that the Division "shall deny membership" in the FRS to any employee who does not comply with statutory requirements for membership or requirements for membership set forth in Chapter 60S, Florida Administrative Code. In addition to Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, Rule 60S-1.002(2), Florida Administrative Code also requires an employee to file a form FRS-M10 with the Division for enrollment into the FRS. The Division has admitted that the City does not have to make FRS contributions for employees who are not me member of the FRS. Within a week after Sallee was hired by the City, the City's Finance Director and Assistant Finance Director resigned their positions. According to witness Linda Stilson, during the thirteen months from when Sallee was hired on June 7, 1999, until July 7, 2000, the date he completed and filed with the Division a form SMS-3 (electing not to be a participant in the FRS) the City hired and lost another finance director; hired another finance director who left in October of 2000; hired and lost another assistant finance director; and hired Ms. Stilson as assistant finance director on May 25, 2000. It was Ms. Stilson who discovered that Mr. Sallee had not been enrolled in the FRS. Although the Division put on testimony that the City had been sent notices of the general requirements for enrollment in the FRS, there was no testimony that the City had actually received such notices prior to Mr. Sallee's hiring. Rule 60S- 3.011(2) provides for the assessment of delinquent fees for FRS contributions which have not been timely made; however, Florida Administrative Code Rule 60S-3.011(4) allows the Division to waive delinquent fees because of exceptional circumstances beyond an employer's control.
Conclusions Having reviewed the Administrative Complaint dated July 27, 2010, attached hereto and incorporated herein, Exhibit 1, and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement, Exhibit 2, with the parties to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: 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. Respondent shall pay, within thirty (30) days of the date of rendition of this Order, an administrative fine in the sum of four Filed December 3, 2010 9:13 AM Division of Administrative Hearings thousand five hundred dollars ($4,500.00) plus a survey fee in the amount of five hundred dollars ($500.00), a total assessment of five thousand dollars ($5,000.00). 3. Checks should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. | 5. The Respondent’s request for an Administrative proceeding is hereby withdrawn. 6. Each party shall bear its own costs and attorney’s fees. 7. The above-styled case is hereby closed. DONE and ORDERED this 7 day of Deoeyloce, 2010, in Tallahassee, Leon County, Florida. k, Interim Secretary Agency for Hepflth Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jonathan S. Grout Goldsmith & Grout, P.A. Counsel for Respondent Daniel M. Kilbride Administrative Law Judge Division of Administrative Hearings P.O. Box 2011 The DeSoto Building Winter Park, FL 32308 1230 Apalachee Parkway (U.S. Mail) Tallahassee, FL 32399-3060 (U.S. Mail) Jan Mills Suzanne Suarez Hurley Agency for Health Care Admin. 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, FL 32308 (Interoffice Mail) Agency for Health Care Admin. Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, FL 32308 (Interoffice Mail) St. Petersburg, Fl 33701 (Interoffice Mail) Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Drive N. #330 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 Z? day of /jete—he- , 2010. SS Richard Shoo pb, Agency SS Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 3
The Issue Is Petitioner currently qualified for licensure as a real estate salesman pursuant to Chapter 475, Florida Statutes, upon proof of rehabilitation and good moral character despite his answer to Question No. 9 of the licensing application and his prior criminal record?
Findings Of Fact The Respondent Agency denied Petitioner's application for licensure as a real estate salesperson in the state of Florida based upon Petitioner's arrests in 1971 for attempted auto larceny and house burglaries; his arrest in 1985 for criminal trespass; and his arrest and conviction for manslaughter in 1991. The charges in 1971 and 1985 were dismissed prior to prosecution. The agency is primarily concerned over Petitioner's 1991 conviction for manslaughter in a shooting death which arose out of a traffic altercation. The Petitioner affirmatively answered Question No. 9 on the application, which asked whether the Petitioner had ever been convicted of a crime. Question 9 also provided that applicants responding with a "yes" answer should "attach the details . . . in full on a separate sheet of paper." Along with his salesperson's application, the Petitioner submitted a one page explanation of his affirmative response to Question No. 9, whereby he explained the circumstances of the incident in 1991 which led to his arrest and conviction for manslaughter. Petitioner signed the application under oath stating that "all answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever . . ." There are some differences between the order of events and his motivations as described by Petitioner in his application and written narrative and as described by him in his oral testimony at formal hearing. Petitioner's oral testimony at formal hearing is more detailed than was his prior disclosure. In both his application's written narrative and his oral testimony at formal hearing, Petitioner clearly tried to explain a very sordid episode in the best light for himself. Petitioner admitted in oral testimony at formal hearing that he had left a lot of detail out of his application's written explanation, due to its length. Petitioner's licensure application explanation stated that he had followed another motorist in 1991 to get his vehicle's tag number, but at formal hearing Petitioner admitted that he also wanted to talk to the other motorist. Petitioner omitted from his application's written explanation the information that in an accident prior to the 1991 incident, when Petitioner had failed to get the other vehicle's tag number, law enforcement personnel had been unable to find the other motorist's vehicle. There are also discrepancies between Petitioner's application's written explanation and his formal hearing testimony as to Petitioner's position (in or out of his car) and the relative positions of Petitioner and his victim at the time the fatal shot was fired in 1991. Basically, however, the significant facts that Petitioner has never tried to hide from the Florida Real Estate Commission are these: In 1991, Petitioner's car was rammed by another car. In a belligerent manner, Petitioner displayed a gun to the occupants of the other car. After some evasive action, Petitioner decided to pursue, and did pursue, the other car. Both cars stopped in a gas station parking lot. Both drivers got out of their cars. Petitioner used his gun to hit the other driver in the head. The gun discharged, killing the other driver. Although the other driver was lying on the ground, Petitioner convinced himself that the other driver was not hurt. Petitioner fled the scene, but after obtaining an attorney, he voluntarily turned himself in to the police two days later. He was ultimately convicted by a jury of first degree manslaughter which is a first degree felony. He was sentenced to a term of 15 years, with credit. He was first incarcerated in October 1991. Petitioner represented credibly that he no longer believes in guns for motorists and that if he had it to do over again, he would have handled the traffic altercation that gave rise to his manslaughter conviction in a different way. He testified, "Generally, I have learned to put my trust in the Lord," and that he had learned to forgive himself but still did not understand why he did what he did in 1991. Petitioner was visibly upset and wept several times during his oral testimony at formal hearing. Doctor Bilak, Ph.D., is a Florida-licensed clinical psychologist. He was tendered (by deposition) without objection as an expert in psychological evaluations and testing for emotional and mental disorders. He saw Petitioner on November 6, 1996. He interviewed Petitioner, took a history, and administered a Minnesota Multiphasic Personality Inventory (MMPI) at a later date. Dr. Bilak saw Petitioner a total of three times. There was no evidence of major psychological problems or any psychopathological inclinations at any of the three sessions. Dr. Bilak opined, "He has a clean bill of health psychologically." Mostly from conversation, and without I.Q. testing, Dr. Bilak concluded that Petitioner is of above average intelligence with no deterioration of his cognitive skills. The MMPI showed no significant pathology of any kind, but did show that Petitioner was suffering mild to moderate levels of psychological distress related to the licensing process. Dr. Bilak's ultimate conclusion was that Petitioner was undergoing a "phase of life problem," either occupational or due to "transiting" (adjusting) from prison inmate to outside world. Dr. Bilak further concluded in November 1996 that Petitioner had current good moral character sufficient to be a real estate salesman, but Dr. Bilak admittedly had no knowledge of Petitioner's reputation for fair dealing, nor of Petitioner's reputation for honesty, truthfulness, or trustworthiness. As a result of his 1991 conviction, Petitioner served approximately two years in prison. Since then, he has completed two years of community control. He has about six and one-half years of probation remaining. Petitioner has served all of his sentence thus far without any unfavorable incidents. Petitioner has made restitution. He has completed the counseling required by the Department of Corrections. Petitioner's other witnesses, without exception, attested to the Petitioner's trustworthiness, self-control, good character, and good reputation. Respondent agency presented no testimony to the contrary. Prior to his release from prison, Martha Bryan hired Petitioner to work in her restaurant. Due to the work release program and the prior interviews connected therewith, she was aware of Petitioner's manslaughter conviction and at least some of the circumstances surrounding the killing when she hired him. In spite of that, she felt comfortable with Petitioner, even when they were alone in the restaurant at night. Petitioner proved himself completely trustworthy while employed in her restaurant for five days a week. Ms. Bryan considered his position of cook as one of trust. Because she felt comfortable with Petitioner and was favorably impressed with his skill with computers and with his intelligence and personality, Ms. Bryan hired him to work in her title insurance office. Before doing so, she made full disclosure about Petitioner's past to her 10-13 associates and partners and received assurances from them that they also would feel comfortable with him. Ms. Bryan's underwriters had no problem with Ms. Bryan hiring Petitioner, since Petitioner had not stolen any money. During the approximately one and a half years that he worked in the title insurance office, Petitioner did nothing to jeopardize his parole, work release, or house arrest statuses. He had a key to the office and opened the office before Ms. Bryan arrived most mornings. He often stayed in the office alone during the lunch hour because he was not permitted to leave the premises under the terms of his work release. Sometimes, Petitioner remained on the premises after Ms. Bryan and all the other employees had left for lunch or for the day. Ms. Bryan has never practiced real estate, but holds an inactive real estate license. According to her, Petitioner was in constant contact with the public and real estate salespersons at the title insurance office in much the same manner as he would be if he were a real estate salesperson. Ms. Bryan habitually trusted Petitioner with confidential client files and up to two million dollars in checks. She never worried when employees or clients were alone with Petitioner. Her associates and partners had expressed to Ms. Bryan their similar confidence in Petitioner. Petitioner worked under stressful conditions in Ms. Bryan's title business, particularly when he was assigned to the front desk dealing with customers. She never received complaints from anyone. She perceived Petitioner as working well with clients in stressful situations. After Petitioner graduated to "house arrest," Ms. Bryan occasionally used him as a courier to the bank or the post office on occasion. Ms. Bryan believes that Petitioner "treated the [title insurance company] job as if it were the best job in the world." She described him as "an unusual case," and stated, "I couldn't pick another Ron out of ten men." She understands his reputation in the community to be good. Petitioner worked for Ms. Bryan from sometime in 1993 to August 1994. Thereafter, he began work in his attorney's office, but Ms. Bryan and her husband still see Petitioner during works hours and socially. They continue to hold him in high regard. Alvin J. Baker is a communications technician with American Telephone and Telegraph. He is a deacon of his church and teaches a Sunday School class there. He knows Petitioner through church activities through a group called "Men For Social Change." He has known Petitioner since mid-1993 and has dealt with him either twice per week or weekly up until approximately eight months before formal hearing when Petitioner changed churches. He has observed no emotional or angry reactions in Petitioner, but described Petitioner as a person who is intent on asking questions until he gets answers. Although Mr. Baker was not aware of Petitioner's conviction for manslaughter until the day of formal hearing, he expressed himself as not feeling betrayed by this lack of confidence. He described Petitioner's general reputation as "a fine and outstanding citizen." Reverend James D. Johnson, Pastor of Trinity United Methodist Church in Lake City, Florida, knows Petitioner as one of his parishioners. He stated that, "I wish I had thirty more members like him." Through one source or another, Reverend Johnson became aware the Petitioner was on probation for manslaughter, even though Petitioner did not personally reveal this information to him. In Reverend Johnson's experience, Petitioner has always acted as a normal individual. Reverend Johnson can depend on Petitioner to do anything he was asked to do on the Trinity church premises. Reverend Johnson and Petitioner meet every week or so in order that Petitioner can prepare and publish the Sunday Church Bulletin. Petitioner is reliable in this regard in every way. Petitioner has been provided with keys to every building and every room at the church. Petitioner has occasionally been entrusted to carry the church's money bag to the bank. Petitioner has co-chaired a church program at Trinity. Petitioner is trustworthy when left alone with women and children at Trinity church. The Reverend Johnson has observed Petitioner counseling with some of his parish's troubled young people about how to stay out of trouble. In regard to Petitioner's reputation for truth and veracity and/or good moral character in the community, Reverend Johnson stated, "All I hear about Ron is good." Joyce P. Tunsil is a retired public school teacher and a substitute teacher at the local Junior College. She has served on the local zoning board and has been an activist in the Lake City, Florida community for some period of time. She is the mother of Petitioner's attorney. She met Petitioner in 1993 at church. She later met him in her son's law office. After working in Ms. Bryan's title insurance office, Petitioner worked for his attorney as a secretary/clerk for approximately two years, leaving for other employment in July, 1996. During most of that period of time, Ms. Tunsil was a volunteer business manager for her son. During this period of time, Ms. Tunsil observed the Petitioner being punctual, polite, conscientious, efficient, and working overtime when necessary. In the law office, Petitioner did preparation of court documents and real estate closing statements, among other duties. Part of Petitioner's job was to do financial entries of cash and check payments into the computer and to reconcile monthly statements. Sixty percent of the time he was on his own without supervision. He proved himself trustworthy. Petitioner was good with children and with difficult clients. Due to the nature of the law practice, certain types of clients presented very stressful situations which could have resulted in physical altercations, however Ms. Tunsil observed that Petitioner was able to defuse these types of situations. Petitioner told Ms. Tunsil about his criminal history. She is aware that Petitioner counsels young people and teenagers and is involved in "Men For Social Change." She believes Petitioner to be fully rehabilitated, to have a positive character, and to be able to conduct himself positively and effectively in business, home and social situations. She perceives his general reputation in the community as "positive." At the time of formal hearing, Petitioner was a purchasing technician for the State of Florida, Department of Veteran Affairs, at the Lake City Florida Veterans' Home. He sought this employment in order to better himself, to make more money, and to build retirement security. He admitted his prior manslaughter conviction on his employment application, and his immediate supervisor is aware of his conviction. As a purchasing technician, Petitioner deals primarily with computers, but also has access to all types of patient- members and supplies, including drugs. He has worked in this capacity successfully for some time with no unfavorable incidents. Petitioner was trained on computers in the Air Force. He was honorably discharged in 1975. He worked with the Federal Aviation Authority as an air traffic controller while attending college. He has a degree in business, and is interested in going back to school in order to get a Bachelor of Science degree in computer science. He wants to become a real estate sales person in order to better himself and make more money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order providing that subject to successful completion of the necessary examinations, the Petitioner be granted a real estate salesperson's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of April, 1997. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Merrill C. Tunsil, Esquire Post Office Box 2113 Lake City, Florida 32056-2113 William N. Halpern Assistant Attorney General 400 West Robinson Street Suite 107 South Tower Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue Whether petitioner must forfeit retirement benefits in the amount of $7,889.26 on account of work he performed for Pensacola Junior College from August 1, 1987, through June 30, 1988?
Findings Of Fact After retiring from the United States Navy as a Captain, petitioner Gaspare B. Tamburello, 72 years of age at the time of the hearing, began working for Pensacola Junior College on August 2, 1969. He spent two years as the College's Director of Veteran Affairs, then became its Director of Administrative Services. By July 1, 1987, when he retired from the College, he had become Assistant to the President. As Assistant to the President, Dr. Tamburello's duties, although many and varied, did not include fund raising or any participation in efforts to create new educational programs. He reported to the President and performed duties the President assigned, including: Serv[ing] as the college's community liaison representative to develop and maintain opt- imum relationships between the college and the community. [by] Represent[ing] the President, in his absence, at community events, councils, and committees. Coordinat[ing] for the college special community and civic events held on campus. Prepar[ing] special briefings and presen- tations. Arrang[ing] tours for representatives of all segments of the community. Serv[ing] as the President's campus ombudsman. [Taking r]esponsib[ility] for special pro- jects and reports on a variety of subjects as assigned by the President. Coordinat[ing] special events and activities for formal ceremonies. Prepar[ing] corres- pondence for the President's signature. Act[ing] as liaison for President at his direction. Supervis[ing] the College Public Relations function. Perform[ing] related duties as required or deemed appropriate to the accomplishment of the responsibilities and functions of the position. Respondent's Exhibit No. 5. While Assistant to the President, he met mornings with Horace E. Hartsell, the College's president, to lay out plans for the day. The College provided petitioner an office next to President Hartsell's, secretarial services, and all his supplies. Until July 1, 1987, the College paid petitioner from its payroll account, withholding a portion of his wages to pay federal income taxes and Social Security taxes. Petitioner received all the fringe benefits the College gave its other employees, including health and hospitalization insurance, life insurance, paid holidays, sick leave, annual leave, contributions on his behalf to the Florida Retirement System, and workers' compensation coverage. When he learned petitioner intended to retire, President Hartsell asked him to consider working as a consultant to the College after his retirement. Dr. Tamburello prepared the following memorandum, dated May 21, 1987: PENSACOLA JUNIOR COLLEGE MEMORANDUM TO: Dr. Hartsell FROM: G. B. Tamburello You asked that I identify areas in which I can serve under the proposed consulting con- tract. The following activities could be assigned under the contract as needed. Community Relations Assist Dr. Crosby in obtaining community support for PJC Future Fund. Assist in developing Community Needs Assessment Project. Develop contacts for expansion of the USA Achievement Program. As directed by you for special purposes. NAVY Relations Lobby for Gulf Region Homeporting Ships Educational Programs. Help develop local homeporting education liaison programs. Arrange courtesy calls with new Commanding Officers. Attend special military functions as requested. PJC Seniors Club Continue to act as advisor to the club. Attend monthly and executive committee meetings. Coordinate Seniors Club campus facili- ties and logistical needs. Develop special programs of interest to PJC Seniors Club members. Veterans Affairs a. Discuss with Reserve Units Reserve GI Bill opportunities. Continuing Education Develop PJC Pre-Retirement Program. Develop Pre-Retirement Program for community businesses and commercial establishments. Develop special life-long learning educational programs. Develop new non-credit PJC Seniors Academy program. International Education a. Assist in the development of recruiting program to attract the international student to PJC campuses. Special Studies and Projects as requested Dr. Hernandez, Jay Mooney, and Betty Dexter approached me about the possibility of being of assistance to them under the contract. I have also discussed the Continuing Education functions with Dr. Betsy Smith who is very pleased with the assistance I might render. Respondent's Exhibit No. 9. The parties later executed a written agreement under which petitioner performed consulting services for the College from August 1, 1987, to June 30, 1988, in exchange for six thousand dollars ($6,000). When Dr. Tamburello retired, the College was paying him at an annual rate of approximately $31,500. Some two weeks after Dr. Tamburello's retirement, David Armstrong became Assistant to the President, filling the regularly established position Dr. Tamburello had vacated and succeeding to his duties. The job description remained unchanged. The consulting contract specified that petitioner would act as an independent contractor while performing services under the contract, and that he would not be an employee of the College. Petitioner reported the income he received under the consulting contract to the Internal Revenue Service on Schedule C. Petitioner's Exhibit No. 10. He filled no position at the college. For his services under the consulting contract, the College paid him from its accounts payable account, and withheld no funds to pay federal income taxes or Social Security taxes. The College did not provide petitioner with an office, assign a secretary, or give him materials and supplies, and petitioner received none of the fringe benefits enjoyed by employees of the College. The College did not reimburse petitioner for expenses he incurred while performing services as a consultant. Although the College contracted directly with Dr. Tamburello and all parties evidently contemplated his personal services, he was not prohibited from hiring others to assist him in performing services under the consulting contract, according to unrebutted testimony from College officials. In 1987 Nova University paid petitioner $6,000 and in 1988 $9,000.00 for services he performed for that school. Petitioner had formed E&T Management Service Co. prior to 1987, and offered his services as a consultant to the general public. Only after August 1, 1987, when Dr. Tamburello's consulting contract became effective, did he begin working with Elizabeth Smith, then Dean of Continuing Education, in an effort to establish an elder hostel program at the College, as part of a "life long learning center" with "seniors teaching seniors." He also conceived and organized the College's "Lex flex" program: classes for members of the crew of the U.S.S. Lexington were scheduled to coincide with the ship's stays in Pensacola, its home port. While working under the consulting contract, he solicited contributions for the College's "Future Fund," and facilitated one donation to the college that amounted to approximately a quarter of a million dollars. He conducted "pre-retirement seminars" at which bankers, lawyers, social security officials and others addressed older members of the community. The Pensacola Junior College Seniors Club, which he started, now has 1500 members. In performing services under the consulting contract, petitioner set his own hours and determined the type and sequence of the work he performed. While not subject to their control, he reported to the President and the Dean of Continuing Education, as ideas or plans unfolded. The pre-retirement seminars took place on campus and he occasionally met with Dean Smith or President Hartsell in their offices, but, as a consultant, for the most part, he worked off campus; he had an office at his home. Petitioner kept track of the various tasks he performed. At varying intervals, he reported how many hours he had worked to Dean Smith, and was paid accordingly, in keeping with the consulting contract. Thirteen of a total of 101 entries reflected that he had done something at President Hartsell's request, typically attend a change of command ceremony as a representative of the College. The President forwarded notices of such events to him, but did not actually request that he attend; sometimes he attended, sometimes he did not. Ten entries reflected time petitioner spent introducing Dr. Armstrong to community leaders. At least nine entries pertained to the "PJC Senior Club." Respondent's Exhibit No. 10. He wrote a single three-minute introduction President Hartsell delivered, but did no other speech writing. Petitioner's experience as a naval officer, his study of the educational needs of the elderly, as evidenced by his doctoral thesis on the educational needs of the elderly, entitled "Project ESP: Education Support Plan for the Aged, and his civic activities all prepared him for the work he performed as a consultant. Before entering into the consulting contract with the College, petitioner had been active in a wide range of community affairs. By June of 1985, petitioner's interest in his retirement benefits had fully vested. Taking into account the twenty factors utilized by respondent as guidelines to determine whether an individual is an employee or an independent contractor, petitioner's status was that of an independent contractor. Some time after 1988, respondent audited the College's records, but did not advise the College that petitioner should be deemed an employee rather than an independent contractor under the terms of the 1987-88 contract. Only later, after an audit performed by the Auditor General's office, did respondent inform him of its contention that he must forfeit $7,889.26 in retirement benefits previously paid to him. The first notice petitioner received from respondent to that effect was dated September 9, 1992.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a final order formally abandoning any claim to the retirement payments it made to petitioner during the period from August 1, 1987 through June 30, 1988. DONE AND ENTERED this 13th day of August, 1993, in Tallahassee, Florida. ROBERT T. BENTON 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 August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7366 Petitioner's proposed findings of fact Nos. 1 through 21 and 25 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 22, 23, 24 and 26 are properly proposed conclusions of law. Respondent's proposed findings of fact Nos. 6, 7, 8 and 14 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 1, Dr. Tamburello supervised public relations and computer operations when he worked as Director of Administrative Services. With respect to respondent's proposed finding of fact No. 2, while his schedule as Assistant to the President varied from day to day, he met with the President every morning. With respect to respondent's proposed finding of fact No. 3, the contract was dated July 21, 1987. Respondent's proposed finding of fact No. 4 pertains to subordinate and immaterial matters. With respect to respondent's proposed finding of fact No. 5, Dr. Hartsell did not want to retain Dr. Tamburello as Assistant to the President. With respect to respondent's proposed finding of fact No. 9, the 1991-1992 contract was between the College and E&T Management Service. With respect to respondent's proposed finding of fact No. 10, there was some overlap. With respect to respondent's proposed finding of fact No. 11, making introductions is not necessarily the function of an employee. With respect to respondent's proposed finding of fact No. 12, Dr. Tamburello did not meet with Dr. Smith on a continuous basis. With respect to respondent's proposed finding of fact No. 13, the name of the company was E&T Management Service. COPIES FURNISHED: Susan B. Kirkland, General Counsel Department of Management Services 2737 Centerview Drive Tallahassee, Florida 32399-0950 William H. Lindner, Secretary Department of Management Services 2737 Centerview Drive Tallahassee, Florida 32399-0950 M. J. Menge, Esquire Shell, Fleming, Davis & Menge Post Office Box 1831 226 Palafox Place Pensacola, Florida 32501 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center-Building C 2639 North Monroe Street Tallahassee, Florida 32399
The Issue Whether Rule 7D-31.001(5), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority? Whether a petition to determine the invalidity of a rule is properly addressed either to alleged, "unwritten, unadopted rule[s]," or to an agency's free form actions in a particular case?
Findings Of Fact Petitioner operates a mobile home park, "Water Oak Country Club Estates," near Lady Lake, Florida. The parties have stipulated, as follows: That the Bureau's [petitioner's Bureau of Mobile Homes] current position regarding prospectus amendments is that the Bureau will not approve amendments which call for changes from the matters disclosed in a previously approved and delivered prospectus [except for those changes falling within Rule 7D-312.001(5) (b)-(i)] unless the park owner can demonstrate that the consent of every mobile home owner who received the prospectus to be amended has been obtained as to the amendment and that such is the current Bureau policy even if the prospectus to be amended was approved by the Bureau with "reservation-of-rights" clauses as to the matters to be changed in the amendment; and that such is currently the consistent Bureau practice as applied in all reviews of prospectus amendments; and that such current practice is a departure from Bureau practice in the past with regard to review of prospectus amendments where the prospectus to be amended contained "reservation of rights" language. * * * That James Leftheris was the Bureau employee assigned to review the prospectus amendments for Water Oak which were submitted to the Bureau for approval on or about April 6, 1988; and a. that he reviewed the prospectus amendments themselves and the letter of April 6, 1988 (Water Oak's Exhibit "4") in the course of his review, and compared the amendments to the previously approved prospectuses to which each amendment related; and * * * that he recommended approval of the amendment to his supervisor, Mrs. Joann Dixon; and that the amendments were accepted by the Bureau on June 23, 1988; and * * * That the letter of April 25, 1989 from Joann Dixon to Richard Lee (Water Oak's Exhibit "17") states the Bureau's reasons for its rescission of the June 23, 1988 acceptance of the Water Oak prospectus amendments in question. The parties also stipulated that it is expensive for mobile home tenants to move out of mobile home parks, that it is not easy for them to move, and that some mobile home parks will not accept used mobile homes. On April 6, 1988, petitioner submitted to respondent proposed amendments to three prospectuses, Nos. 3500521P, 3500521P2, and 3500521P86, pertaining to its mobile home park. The proposed amendments "were accepted for filing purposes on June 23, 1988." Petitioner's Exhibit No. 11; Petitioner's Exhibit No. 10. On April 25, 1989, respondent wrote petitioner's lawyer, stating: Since our records do not include the requisite consent of the home owners, the Bureau is rescinding its acceptance of the subject amendments. Petitioner's Exhibit No. 11. This rescission applied to all three amendments, Nos. 3500521P, 3500521P2, and 3500521P86. Rule 7D-31.001(5), Florida Administrative Code, reads, as follows: (5) The prospectus distributed to a home owner or prospective home owner shall be binding for the length of the tenancy, including any assumptions of that tenancy, and may not be changed except in the following circumstances: Amendments consented to by both the home owner and the park owner. Amendments to reflect new rules or rules that have been changed in accordance with procedures described in Chapter 723, F.S., and the prospectus. Amendments to reflect a change in the name of the owner of the park. Amendments to reflect changes in zoning. Amendments to reflect a change in the person authorized to receive notices and demands on the park owner's behalf. Amendments to reflect changes in the entity furnishing utility or other services. Amendments required by the Division. Amendments required as a result of revisions of Chapter 723, F.S. Amendments to add, delete or modify user fees for prospective homeowners.
The Issue Whether Petitioner, Sarasota County School Board ("School Board"), has just cause to terminate Respondent, Rebecca Willard's (Respondent), employment as a teacher's aide.
Findings Of Fact Respondent was a teacher's aide at the Oak Park School in Sarasota, which is operated by the School Board. Oak Park School serves students with a broad range of special needs. During the 2007-2008 school year, Respondent was a teacher's aide in a classroom of six autistic children. The disabilities of these children included aggressive and non-verbal children, as well as a child who would run away if not constantly supervised. That classroom was led by one teacher and two aides, including Respondent. That staffing level was necessary for that classroom to ensure the safety of the children. Respondent has a history of excessive absenteeism, which she acknowledged. During the 2007-2008 school year, Oak Park School principal Dan Parrett counseled her informally, and later formally in a noticed meeting, for her excessive absenteeism and reminded her of the critical need for her to be present or inform administration of her absence in sufficient time so that substitute coverage could be arranged. Oak Park School maintained a designated answering machine that staff would use to call in and notify the school of an impending absence, if an employee had not previously notified administration of the absence. For instance, if an employee became ill during the night prior to work, that employee would call the answering machine and advise that he or she was ill and would not be at work. Oak Park School personnel reviewed the messages on the designated answering machine at the beginning of each morning (7:00 a.m.) and would arrange for substitutes for those individuals who left messages that they would be absent. Oak Park School personnel have a difficult time arranging for a substitute if they first learn of an absence later in the morning due to a lack of available substitutes. At all times material to this case, Respondent was aware of the answering machine and the need to inform the Oak Park School administration of any upcoming absence. Respondent failed to report to work at Oak Park School on Monday, April 28, 2008; Tuesday, April 29, 2008; Wednesday, April 30, 2008; and Thursday, May 1, 2008. Respondent did not, nor did anyone on her behalf, notify anyone at Oak Park School or anyone with the School Board prior to these absences that she would not be reporting to work on these dates. Respondent did not, nor did anyone on her behalf, leave a message on the answering machine at Oak Park School at anytime from the end of the school day on Friday, April 25, 2008, through the afternoon of Thursday, May 1, 2008. On May 1, 2008, the fourth consecutive day that Respondent was absent from work without notifying anyone of her absence, the Superintendent recommended Respondent's termination for job abandonment. Respondent testified that the reason she did not report to work the week of April 28, 2008, or leave a message on the answering machine was that she suffered from back spasms and her phone was inoperable. Respondent, however, failed to produce any document or witness to corroborate her statements. Notwithstanding her contention that she could not report to work at Oak Park School on April 28, 2008, or call to advise of her absence, she worked at her second job on Sunday, April 27 and, Monday, April 28, 2008. The undisputed evidence established that Respondent worked at Nokomis Publix on both Sunday, April 27, 2008 (during the afternoon and evening for 8.52 hours), and Monday April 28, 2008 (during the evening for 3.95 hours), which provided her access to a telephone and an opportunity to notify Oak Park School of her absence. Publix's time records for Respondent demonstrate that she was afforded breaks both of those dates and she easily could have made a telephone call and left a message on the Oak Park School answering machine. Because Respondent worked at Publix on Monday evening, April 28, 2008, the assertion that she was suffering from severe back spasms that day and the following days, which precluded her from working at Oak Park School that day is not credible. On April 27 and 28, 2008, Respondent was able to drive to her job at Publix. Respondent conceded that she had an operable motor vehicle the week of April 28, 2008. However, Respondent testified that she was unable to walk down the steps of her apartment or house and drive to the location where she could notify Oak Park School personnel that she would be absent. This testimony is not credible. Contrary to her testimony, Respondent could have notified personnel at Oak Park School, either in person or by telephone prior to her absences, but she did not. Respondent was willfully absent from her teacher's aide position at Oak Park School from April 28, 2008, through and including May 2, 2008. Contrary to her testimony, Respondent could have notified personnel at Oak Park School, either in person or by telephone prior to her absences, but she did not. Respondent voluntarily abandoned her job with the School Board and has no legitimate excuse for her absences. Respondent never requested any type of leave of absence (such as, family medical leave) associated with her absences for the week of April 28, 2008, either before or after that week.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order that dismisses Respondent, Rebecca Willard, from her position as a teacher's aide. DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2008.
The Issue Whether Certificate of Need (CON) Application Number 9478 filed by Hernando HMA, Inc. (HMA or Hernando HMA), d/b/a Brooksville Regional Hospital (Brooksville Regional) for approval to replace and relocate its existing 91-bed hospital in Hernando County, Agency for Health Care Administration (AHCA) District 3, Subdistrict 6, meets the applicable criteria for approval.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the state agency authorized to administer the certificate of need (CON) law in Florida. AHCA is the designated state health planning agency. See Subsections 408.034(1) and 408.035(1), Florida Statutes. AHCA Health Services Planning District 3 is composed of Hamilton, Suwannee, Lafayette, Dixie, Columbia, Gilchrist, Levy, Union, Bradford, Putnam, Alachua, Marion, Citrus, Hernando, Sumter, and Lake Counties. See Subsection 408.032(5), Florida Statutes. Within District 3, Hernando County is designated acute care subdistrict 6. The three acute care hospitals in the County are Hernando HMA, Inc., d/b/a Brooksville Regional Hospital (Brooksville Regional) which was previously operated under the name of Lykes Memorial Hospital, Spring Hill Regional Hospital (Spring Hill), and HCA Health Services of Florida, Inc., d/b/a Oak Hill Hospital (Oak Hill). HMA Hernando HMA is the applicant for CON Number 9478 to replace and relocate Brooksville Regional, an existing 91-bed hospital in Brooksville, Florida. Constructed over a 40-year time period to a maximum size of 166 beds, Brooksville Regional is currently licensed to operate 91 beds. In the early 1990s, 75 beds were transferred from Brooksville Regional to establish Spring Hill. Spring Hill is located in southwest Hernando County near the Hernando/Pasco County line. Health Management Associates, Inc., the parent of Hernando HMA, is a publicly traded for profit corporation, with headquarters in Naples, Florida. Hernando HMA leases and operates, under a single state license, both Brooksville Regional and Spring Hill. Both are owned by Hernando County. In 1998, the County entered into a 30-year lease agreement for HMA to assume the management of the hospitals which were then bankrupt. HMA acquires primarily non-urban area hospitals in need of capital and/or new management strategies to reverse patient out- migration. The corporation owns or operates 43 hospitals in 14 states, including 13 in Florida. HMA has rebuilt and replaced 8 of the 43 hospitals it has acquired since its establishment in 1977. In addition to Brooksville Regional and Spring Hill, in Hernando County, HMA also operates Pasco Regional Medical Center (Pasco Regional), in adjacent northeast Pasco County, in AHCA District 5. See Subsection 408.032(5), Florida Statutes. Pasco Regional, a 120-bed hospital located on U.S. Highway 301, in Dade City, Florida, serves residents of eastern Hernando and Pasco Counties who reside along the four-lane corridor, in the communities of San Antonio, St. Leo, Trilby, Lacoochee, Ridge Manor, Dade City, Zephyrhills, and Wesley Chapel. Because of the emergency medical transport policy of taking patients to the nearest hospital, over 85% of those transported from eastern Hernando County are taken to Pasco County hospital emergency rooms. Hernando HMA's 1998 lease agreement with Hernando County required HMA to pay the debts necessary for the hospitals to emerge from bankruptcy, to provide Medicaid and charity care for Hernando County residents, and to provide $25 million in capital improvements to the two hospitals. To date, $15 million has been spent, $7 million for improvements to Brooksville Regional and $8 million for Spring Hill. Under the terms of the lease, the proposal to relocate the hospital required County approval. At a meeting held on September 25, 2001, Hernando County Commissioners vote unanimously to allow the filing of CON Number 9478. Hernando HMA proposes to replace and relocate Brooksville Regional to a 95-acre site on which it has a purchase option for $25,000 an acre. The total estimated project cost is $52 million, $33 million of that for construction. The parcel is located at the intersection of Lykes Dublin Road and a four-lane stretch of State Road 50. The proposed new site is 2.7 miles west of the existing site and 1.8 miles west of Cobb Road where the southern Brooksville City bypass of State Road 50 ends. HMA has agreed to donate the hospital, and approximately 25 acres of underlying and surrounding land to Hernando County. HMA will continue, under the terms of the lease, to manage the hospital, and also plans to build medical offices on the remainder of the parcel of land. Brooksville Regional is currently located, on approximately 11 acres on Ponce De Leon Boulevard in downtown Brooksville, a mile east of the State Road 50 bypass and one- tenth of a mile from U.S. Highway 41 which is being increased from four to six lanes. The City of Brooksville opposes the relocation of the hospital to the new site which is 1.5 miles beyond the city limits. Oak Hill Oak Hill is a 204-bed hospital, located just off State Road 50, in western Hernando County. Oak Hill was constructed 18 years ago on a 40-acre campus which includes two medical office buildings, related structures for staff offices and plant operations, and a cancer institute. Oak Hill is approximately five miles west of Brooksville's proposed new site, and eight miles west of its existing location. Oak Hill, like many Florida hospitals, experiences seasonal variations in occupancy. Typically, utilization reaches up to 90% in the first quarter of the year and goes down to 60% in the fall. Occupancy rates have been growing approximately 4% a year from 1997 to 2000, but from 2000 to 2001, patient days at Oak Hill increased 8%. Oak Hill has also recently received CON approval to establish an open heart surgery program, which is expected to reverse the out-migration of open heart surgery and other cardiac patients, primarily to another HCA facility, Bayonet Point in Pasco County. Bayonet Point is 17 miles or a 30-minute drive from Oak Hill. With the anticipated reversal of some out- migration, and a 2% annual increase in patient days, Oak Hill will have over 100% occupancy in the first quarter of 2005, going down to 74% occupancy in the fall of that year. Oak Hill opposes the proposal to relocate Brooksville Regional. Oak Hill asserts (1) that the proposed new location is less desirable than alternative sites suggested by the City of Brooksville; (2) that Brooksville Regional failed to demonstrate that replacement rather than renovation of the existing building is necessary; (3) that the proposed site will decrease access for residents in eastern Hernando County; and (4) that the replacement and relocation will adversely impact Oak Hill. The published fixed need pool for the subdistrict indicated no need for additional acute care beds. Brooksville Regional's proposal to relocate, but not add beds, is not inconsistent with the fixed need pool. CON review is required and is not expedited in this case because Brooksville Regional is proposing to relocate to a different site which is more than one mile from its current site. Review criteria The parties, in a prehearing stipulation, agreed that Brooksville Regional and Oak Hill have good records of providing quality care and can be expected to continue, as required by Subsections 408.035(2) and (3), Florida Statutes (2001). The parties agreed that Brooksville Regional's staffing projections are reasonable and sufficient based on its projected utilization, but Oak Hill disputed the accuracy of the utilization projections. The parties agreed that the design and schematic drawings for the new hospital are reasonable. The parties acknowledged that there will be an adverse impact on Oak Hill as a result of a loss of some employees, physicians, and patients, the magnitude of which has to be considered under Subsection 408.035(9), Florida Statutes (2001). The parties stipulated that Brooksville Regional has sufficient resources, including personnel and funds, to accomplish the project and operate the facility, as required by Subsection 408.035(6), Florida Statutes (2001). The parties agreed that Subsection 408.035(5), related to the needs of research and educational facilities; and Subsection 408.035(12), Florida Statutes (2001), related to nursing home beds, are not at issue in this proceeding. The parties stipulated that, at issue, are the criteria in Subsections 408.035(1), (2), (4), (7), (8), (9), (10), (11); and Subsections 408.037(1)(b)3. and (c), Florida Statutes (2001); and Florida Administrative Code Rules 59C-1.008(3) and (5), 59C- 1.030(2)(a) through (f), and 59C-1.038(6)(a). District health plan District 3 health plan criteria related to the establishment or expansion of services, the establishment of services in a community with no current service, the addition of beds, and the establishment of new facilities are not applicable to this project. Oak Hill's health planning consultant noted, however, that criteria related to bed transfers could also relate to a proposal to relocate an entire hospital. Those considerations include whether Medicare and private pay markets of disproportionate share charity and Medicaid hospitals will be adversely affected, whether access generally, and access particularly for Medicaid and indigent patients, or other traditionally underserved groups, will be improved. The criteria also overlap those in other applicable statutes and rules. See also Subsections 408.035(2), (7), and (11), Florida Statutes (2001); Rule 59C-1.038(6)(a) and Rule 59C-1.030(2)(a) through (f), Florida Administrative Code. Other relevant considerations include whether the transfer is needed and is more cost-efficient than renovation or expansion of the existing facility, and whether the proposal is financially feasible. See also Subsections 408.035(1), (4), (8), (9), and (10), Florida Statutes (2001). Medicaid and indigent care Hernando HMA, at Brooksville Regional and Spring Hill combined, provided approximately 71% of total charity care in the County in 2000, and 79% in 2001. Brooksville Regional is a disproportionate share provider of Medicaid, having provided approximately 8% of its total care to Medicaid patients. Brooksville Regional separately provided more Medicare, but half as much Medicaid as Spring Hill which, unlike Brooksville Regional, has obstetrics and neonatal intensive care programs which typically provide services to a large number of economically disadvantaged mothers and newborns. Oak Hill provided the remaining 20 to 30 percent of the charity care in Hernando County. Approximately 6% of Oak Hill's patients are in the Medicaid payor category, but Oak Hill is not a disproportionate share provider. Oak Hill provided almost 2% of its total revenues for charity care in 2000, and its Medicaid care increased from approximately $7.4 million in 2000, to $12.3 million in 2001. Although Hernando HMA did not offer a CON condition related to a specific level of Medicaid and charity care, its historic levels and Hernando County's continued ownership of the hospital provide the assurances required by the criteria. Geographical access Hernando County had a population of 130,810 people in 2,000, which increased to 136,552 in February of 2002, and is projected to be 159,400 people in 2010. There are 7,227 residents of the City of Brooksville, and 129,313 in unincorporated areas of the County. The population is more dense, more growth is projected, and more development is allowed under the comprehensive plan, in the central and western portions of the County. The population in the zip codes east of Interstate 75 was, in 2001, 4,301 of the total of 132,590. By 2010, the eastern area is projected to have 1,295 more people as compared to a projected increase of 19,401 people in areas west of Highway The projected areas of most intense population growth are in western Hernando County, clustered around U.S. Highway 19, to the north of State Road 50, and Highway 41, to the south of State Road 50. These are also areas with a high concentration of the population over 65 in a "retirement belt." East of Interstate 75, the population of Hernando County is more sparsely settled, younger, and has a lower mortality rate. More eastern area residents who need inpatient acute care, on an elective or emergency basis use the closest hospitals, Pasco Regional in Dade City and East Pasco Community Hospital (East Pasco) in Zephyrhills. In recent years, the trend towards utilization of Pasco county hospitals by eastern Hernando County residents has increased. Residents in the area also use hospitals in Lake County. The Hernando County Board of County Commissioners hired Tribrook Healthcare Consultants to report on the relocation proposal, including consideration of access for residents of eastern Hernando County. Residents of the three eastern zip codes accounted for 83 discharges from Hernando County hospitals from the second quarter of 1999 through the first quarter of 2000. Of those, 43% or 36 discharges were from Brooksville Regional, 18% or 15 from Spring Hill, and 39% or 32 from Oak Hill. For the year ending June 30, 2001, fifty-three discharges from Brooksville Regional and 28 from Oak Hill originated in the three eastern zip codes. From January through August 2001, the Hernando County Fire and Rescue service responded to 259 emergency health care calls from the eastern area, which represents approximately 5% of its total volume of 4,863 transports. Of the 259 transports, 109 people were taken to the emergency room (ER) at Brooksville Regional, and an equal number to the Pasco Regional ER, 14 to the East Pasco ER, and eight to the Oak Hill ER. Level one trauma patients, such as those with severe injuries from Interstate car accidents, are air lifted to trauma centers at Orlando hospitals, Tampa General Hospital or Bayfront Medical Center in St. Petersburg. If Brooksville Regional is relocated to the proposed new site, the increase in average peak travel times from various locations in the County will range from four to six minutes, for total average travel times ranging between 10 and 21 minutes. For the majority of the County residents, the average peak travel times will decrease, saving from one to six minutes, since the new location is closer to more densely populated residential areas. The acute care travel time goal is to have most residents able to reach the service within 30 minutes. The standard is already met and will, with Brooksville Regional's proposed relocation, continue to be met in District 3, Subdistrict 6. The residents of the County in the eastern areas will not be adversely affected by the relocation because relatively few use Brooksville Regional, and because, for many residents along the U.S. 301 corridor, Pasco Regional is more accessible. In addition, in return for approval of the Brooksville Regional relocation proposal, Hernando County required HMA to purchase an ambulance with advanced life support equipment to station in the eastern area near Interstate 75. There is credible evidence that, in some cases, the time it takes for paramedics to reach an emergency patient and begin treatment can be more important in saving lives than the actual travel time to a hospital emergency room. The conditions imposed by the County also required a $20,000 contribution from HMA for an indigent patient clinic and recruitment of a physician to staff a clinic in the eastern area. Relocation and replacement vs. renovation; alternative sites The proposed relocation site was criticized as inappropriate geologically. The property includes wetlands. Agricultural land across the street drains through a ditch under the road into a pond on one corner of the property. The elevation of the land at State Road 50 is 90 feet above sea level, increases to 95 feet but then slopes down to 65 feet at Wiscon Road. There are sinkhole-like depressions towards the back of the property. To meet state disaster preparedness standards, the elevation of a hospital must be equal to or above the major thoroughfare leading to the entrance. Brooksville Regional can be constructed on the proposed site with its main entrance facing and above the elevation of State Road 50. Other entrances can also be elevated using fill dirt. In general, the site meets the County land use criteria and has sufficient uplands. It also meets the criteria developed by HMA and its land planning consultant for (1) a minimum of 40 acres, (2) the potential for traffic signalization, (3) proximity to population growth centers, and (4) good visibility from passing traffic. Currently, Brooksville Regional is located on 11 acres in two separate three-story towers connected through a central building on the ground floor. The building is constructed from 10 to 15 feet below the street it faces, Ponce De Leon Boulevard. The entrance floods in heavy rains and lacks good visibility from street traffic. During the last four years, improvements at Brooksville Regional have included a new roof, lobby renovations, electrical upgrades in the operating room, the installation of new air handlers, and substantial investments in new equipment. Despite the improvements, the physical plant cannot be renovated to meet current codes and the layout of the building inevitably results in inefficiencies. Oak Hill noted, however, that the building is not technically violating any code but is "grandfathered." In addition, none of deficiencies affect Brooksville Regional's ability to provide excellent care, as measured by it score of 97 out of 100 on the most recent survey by the Joint Commission on Accreditation of Health Care Organizations. Patient corridors, in one tower, are less than eight feet wide as required by the National Life Safety Code. The building is not in compliance with the Americans With Disabilities Act (ADA). The parking area exceeds the level for a ramp to the building. Electrical, heating, ventilation and air conditioning (HVAC) systems require major upgrades to meet codes. Improvements are limited by the inadequately sized ceiling spaces for ductwork and pipes. The HVAC inefficiencies are estimated to cost Brooksville Regional from $400,000 to $500,000 a year. The major functional inefficiencies at Brooksville Regional result from the configuration in two separate towers. Staff must cross the central core and use one of two elevators in each tower to provide care, deliver food, remove trash and soiled linens, and transport patients. The elevators and corridors are shared with visitors. The separate towers divide patients into smaller, inefficient groupings which require more staff. One witness cited a cost estimate of $250,000 for a pedestrian walkway to connect the second and third floors of the two towers. Oak Hill criticized the absence of any other cost estimates for renovation of the existing building. If any major renovations are undertaken, all "grandfathered" code exemptions will be lost. The hospital would have to be closed and rebuilt. Inadequate space compromises patient privacy in various areas, including the emergency room and surgical suite. Spaces are inadequate for modern equipment in appropriate locations, so, for example, a CT scan, is located outside the radiology department, and 140 feet from the emergency room Brooksville Regional proposes to increase the size of the radiology department from approximately 6,400 square feet in the existing building to 16,000 square feet in the new building. Operating rooms currently range from 245 to 345 square feet as compared to code requirements of 450 to 600 square feet, with the larger rooms necessary to accommodate surgeries, such as orthopedics, which require larger equipment. The total size of surgical department is approximately 6,200 square feet while the guidelines suggest it should be 10,800 square feet. The new plan includes 6,300 square feet for the pharmacy and laboratory combined, which now occupy approximately 3,000 square feet. Overall, the new building will be almost 182,000 square feet, 65,000 square feet larger than the existing facility. The new plan also offers all private patient rooms, except one semi- private room, consistent with the current industry trend which is intended to allow family members to spend the night with patients. The design is taken from a prototype used by HMA to construct five other replacement hospitals in the last five years. Therefore, HMA is certain that the estimated construction cost is reasonably accurate and that the design works well for patients, visitors, and staff. Considering the deficiencies in the current structure which could only be corrected by closing the hospital completely and rebuilding it on site, taking five to six times as long as construction of a new facility, renovation of the existing structure is not a viable alternative. The City of Brooksville suggested other sites it favored over that selected by Brooksville Regional. The first parcel examined was 32 acres, not HMA's required minimum of 40 acres for the prototype. It would require assembling separate parcels and closing streets. The second, with 49 acres, is located on a two-lane city street and has a large pond in the center of the tract. A third, with 55 acres, would have to be shared with a post office carrier facility and lacks good visibility because of its location on a curve. The fourth site has 38 acres, but is too narrow for the prototype and is well below the elevation of State Road 50. The fifth tract is south of the fourth. It has 46 acres which, if acquired with the 38 acres to the north would be more than adequately sized, but is even lower than the parcel to the north and has a lake in the center. A sixth site with 66 acres is too long and narrow for the prototype. Finally, the City suggested assembling more parcels surrounding the existing building, which would require the acquisition of 38 to 40 lots, but that tract would be long and narrow. As previously noted, the hospital would have to close for reconstruction for a substantially longer period of time than required for new construction. The possibility that the City would donate a portion of an adjacent park was discussed but it was never formally offered. It is also currently the location of fire and police stations. That acquisition also would have required the condemnation of roads. Costs, financial feasibility, adverse impact and cost-effectiveness competition The cost for the new facility is estimated at $52 million. The parties stipulated that HMA can fund and operate the project. And, though previously bankrupt, Brooksville Regional had pre-tax profit of $5 million in 2001. The financial feasibility of the project was questioned. Oak Hill's expert criticized an underlying assumption that Medicare reimbursement would increase 6.4% from the first to second year. Taken in isolation, the increase looks unrealistic, but viewed over the entire time period from the base year to the second year of operation, the average annual rate of inflation is 2.5%, and is reasonable, as is the resulting projected Medicare revenues. Brooksville Regional's financial schedules included a management fee of 3% of gross revenues, although HMA has recently charged up to 4% to individual hospitals. HMA can assess a management fee of 3% rather than 4%, which one of its officers described as conservative considering that its actual corporate overhead is less than one percent of revenues. The assessment is based on tax considerations more than on actual costs. In addition to the management fee, Brooksville Regional's start-up costs, equipment costs, and depreciation costs were questioned as too low. Even when deducted from projected revenues, however, the additional expenses do not render the project financially infeasible. The proposed project is financially feasible considering either the CON-projected incremental increases in profit, $437 thousand in the first year and $868 thousand in the second year, or the revised estimates in HMA/Brooksville Regional's Exhibit 56. In Exhibit 56, the projected increase in profits, after relocation, are $860 thousand in the first year and $1.3 million in the second year. See Conclusion of Law 79. Brooksville Regional currently operates at a competitive disadvantage. In 1999, Brooksville Regional had 3,758 discharges, which increased to 3,794 in 2000. By contrast, Oak Hill increased its discharges from 10,575 in 1999, to 11,376 in 2000, and up to 12,743 in 2001. Excluding approximately 400 newborns, the increase in discharges is not entirely attributable to population growth. It also reflects Oak Hill's increase in market share. Overall occupancy rates were 80% at Spring Hill, 70% at Oak Hill, and 62% at Brooksville Regional in 2001. If the new hospital is built, Brooksville Regional projected it would have 405 more discharges in the first year of the project and 413 more in the second year, for an increase in revenue of $1.3 million in the second year. Oak Hill suggested the incremental increase in the number of patients was insufficient to justify a $52 million expenditure, yielding only $1.3 million or 2.5% return on investment, while HMA returns average approximately 15%. Oak Hill also maintained that Brooksville Regional underestimated the projected increase in discharges which would result from the proposed relocation and replacement. Oak Hill's expert estimated that Brooksville Regional would have 770 discharges in the first year and 1,146 in the second year of operations. If Brooksville Regional has more discharges, its revenues and profits will also be higher. Of those 1,146 year two discharges, Oak Hill estimated that it would have captured 823 admissions in the absence of a new Brooksville Regional hospital. Oak Hill's expert planner also asserted that the loss of patients would make Oak Hill less efficient and less cost- effective, and result in higher charges at Brooksville Regional. In addition to opening a new open heart surgery program, Oak Hill is undergoing $10 million in emergency room renovations. With these, Oak Hill is projected to reach between 82 and 83% average occupancy, in 2004 and 2005, before Brooksville Regional could become fully operational. The optimum is around 75%. Oak Hill argued that it could absorb the projected growth through the CON-exempt addition of 20 beds which would return occupancy to reasonable levels between 75 and 76%. The costs incurred for the addition, however, will be unnecessary if Brooksville Regional is more competitive and utilized more efficiently. As estimated by Oak Hill's expert, the proposed relocation of Brooksville Regional will leave Oak Hill with 12,243 discharges in 2005, and 12,265 discharges in 2006. Assuming the estimate is correct, Oak Hill will be at approximately the same volume as it currently experiences. There is no suggestion that its operations are not cost-effective or efficient at between 11,000 and 13,000 discharges. The pre-tax income decrement could be as high as $1.93 million. In the context of the Oak Hill budget of $17.1 million for 2002, and considering its competitive advantages, the adverse impact to Oak Hill is outweighed by the need for improvements at Brooksville Regional. Oak Hill's expert estimated that Brooksville Regional's projected volume was understated and that additional admissions should be expected based on more recent trends in utilization. If Brooksville Regional reached that volume, then revenues at the new facility would increase an additional $1.8 million, to a pretax total exceeding $6 million. The project is financially feasible, therefore, and the costs are justified to enhance the efficiency and competitiveness of Brooksville Regional. Oak Hill noted that the impact of the development of the entire 95-acre site is likely to be greater than that of the 25-acre hospital tract. Whether the same owner held the entire tract or not, there is no reason to expect that land surrounding a hospital would not become medical office buildings and related health care services. Oak Hill will face competition from a 60-bed Healthsouth comprehensive medical rehabilitation hospital currently under development approximately two miles away on State Road 50 in the direction of the Brooksville Regional site. The impact of the rehabilitation hospital, a reduction in acute care lengths of stay, will apparently be felt by all acute care hospitals throughout the region not just Oak Hill. There is no evidence to indicate that the combined impact of Healthsouth and Brooksville Regional on Oak Hill justifies the denial of the proposed relocation of Brooksville Regional. HMA's letter of intent and financial statements HMA's letter of intent indicated that the project costs would not exceed $40 million, but the CON project cost is $52 million. Since letters of intent are not required to include project costs, AHCA has taken the position that the error in the letter of intent is insignificant as long as the project was identified with sufficient specificity. AHCA received the audited financial statements for Hernando H.M.A., the applicant, but not separate audited financial statements for Brooksville Regional. Oak Hill's expert suggested that AHCA received inadequate information to determine the financial feasibility of the project. Hernando HMA's audited financial statement and Schedule 2, with its other financial commitments, demonstrated its ability to provide the funds. The separate financial schedules related to Brooksville Regional's operations, especially Schedules 7 and 8 provided the information necessary for AHCA to determine if the project is financially feasible. Hernando HMA has demonstrated that it met the letter of intent and application content requirements, and that, on balance, it meets the criteria to relocate and replace Brooksville Regional as proposed in CON Application No. 9478.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order approving CON Application No. 9478 for Hernando HMA to relocate and replace Brooksville Regional as proposed in the application. DONE AND ENTERED this 24th day of December, 2002, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2002. COPIES FURNISHED: James C. Hauser, Esquire Metz, Hauser & Husband, P.A. 215 South Monroe Street, Suite 505 Post Office Box 10909 Tallahassee, Florida 32302-2902 Stephen A. Ecenia, Esquire R. David Prescott, Esquire Thomas W. Conrad, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403
