Findings Of Fact Based upon the record evidence, the following findings of fact are made: Okeechobee Health Care Facility (OHCF) is a licensed nursing home facility located in Okeechobee County, Florida. OHCF was formerly owned and operated by Okeechobee Health Care Facility, Ltd. (Okeechobee). Okeechobee was a limited partnership. Faye Williamson and her husband were its general partners. In March, 1988, Okeechobee was granted, pursuant to its request, a certificate of need (CON 5454) to add a 30-bed wing to OHCF at a cost of $810,000.00. On December 8, 1989, Okeechobee filed its final project cost report with Respondent. The report reflected that actual expenditures had exceeded the approved cost of the project by more than $650,000.00. By letter dated December 13, 1989, Respondent advised Okeechobee that it was necessary for Okeechobee "to request an expedited review for a cost overrun on this project." On February 22, 1990, Okeechobee filed a certificate of need application (CON application 6150) seeking such expedited review. The application was accompanied by a check in the amount of $750.00. Ms. Williamson, who submitted the application on behalf of Okeechobee, did so thinking that the application was complete. Following her submission of the application, she awaited Respondent's response. Based upon her prior experiences with Respondent in these matters, it was her understanding that if Respondent determined that the application was incomplete, it would so notify her. On or about March 2, 1990, Williamson, who was identified on the application as Okeechobee's authorized representative and contact person, was telephoned by an employee of Respondent's who advised her that she needed to remit an additional $1,990.04 on behalf of Okeechobee to cover the full application filing fee. Immediately following this telephone conversation, Williamson wrote out a check in the amount of $1,990.04 and mailed it to Respondent. On or about April 11, 1990, Williamson was informed that, notwithstanding what she had been telephonically advised the previous month, the $2,740.04 that already had been remitted did not constitute payment in full of the application filing fee and another $1,990.00 was still required. Upon being provided this information, Williamson sent a third check, in the amount of $1,990.00, to Respondent. In the aggregate, Respondent received $4,730.04 from Okeechobee in connection with the filing of CON application 6150. On or about April 23, 1990, Respondent, by certified mail, sent to Williamson at the address indicated on the application as her mailing address (Post Office Box 728, Okeechobee, Florida 34973), an "omissions" letter, which read in pertinent part as follows: Your application on behalf of Okeechobee Health Care Facility, Ltd. has been received for a certificate of need for a cost overrun on Certificate of Need Number 5454, to be located in Okeechobee, Florida. Certain specified elements are omitted from your proposal which are nee to implement formal review. Please respond to the items noted below. For an existing health care facility, HMO or hospice, audited financial statements of the applicant for the two previous years. (The applicant's most recent complete fiscal years of operation immediately preceding the 120 day period described above). Update for period ending December 31, 1989. 7B. Please furnish a certified copy of the resolution of the board of directors pursuant to 381.709(1)(c), Florida Statutes. Conditions predicated upon award. 2C1. Terms of Financing (Appendix 5(2C1)). Letter of commitment omitted. Section 381.709(3)(a), Florida Statutes, requires that you respond to the above omissions by May 14, 1990. Failure to provide responses by this date may result in your application being deemed incomplete and administratively withdrawn from further consideration. The United States Postal Service delivered this "omissions" letter on April 27, 1990. Kasee Wherrell was the person to whom delivery was made. At the time, Wherrell was an employee of Professional Accounting Systems of Okeechobee (PASO), which had contracted with Okeechobee to perform certain clerical and administrative services in connection with the operation of OHCF. Among Wherrell's duties as an employee of PASO was to go to the post office, pick up the regular mail in the OHCF post office box, bring it back to the OHCF business office and distribute it to the appropriate person(s). She was not authorized, however, to sign for and receive any certified mail. Wherrell never gave Williamson the "omissions letter she had retrieved from the post office. Consequently, neither Williamson nor any other Okeechobee representative responded to the letter within the time frame specified in the letter. Not having received such a response, Respondent sent Williamson the following letter, dated May 25, 1990: In accordance with the provisions of Section 381.707 and 381.709, Florida Statutes, you were given until May 14, 1990 to respond satisfactorily to the omissions noted in the correspondence from this office dated April 23, 1990 relative to your proposal for a cost overrun on Certificate of Need Number 5454. Because of your failure to provide a detailed listing of the needed capital expenditures, including sources of funds; and a certified copy of a resolution by the board of directors, your proposal has been withdrawn from further consideration, effective May 14, 1990. You have the right to request an administrative hearing on this decision under the provisions of Florida's Administrative Procedure Act, Chapter 120, Florida Statutes, and under Department Rule 10-5.010, Florida Administrative Code. A request for hearing, if any, must be actually received by this department within 21 days of the first day of publication of notice of the withdrawal in the Florida Administrative Weekly. A request for hearing must contain the information required in Rule 28-5.201, Florida Administrative Code, and must make reference to the "CON Action Number" referred to in this lit The original and one copy of each request for hearing may be filed with or mailed to the following location: Sam Power, Agency Clerk, Assistant General Counsel, Department of HRS, 1323 Winewood Blvd., Building 1, Suite 406, Tallahassee, Florida 32399-0700. Upon receiving this letter, Williamson contacted her attorney, who in turn telephoned Amy Jones, Respondent's Deputy Assistant Secretary for Regulation and Health Facilities, to explain the circumstances surrounding Okeechobee's failure to timely respond to the "omissions" letter. After Williamson's attorney made his presentation, Jones advised him that, if he desired to have Respondent formally consider the matter, he would have to submit a petition for an administrative hearing in accordance with the May 25, 1990, letter that had been sent to Williamson. Such a petition was filed with Respondent's Agency Clerk on June 21, 1990. Okeechobee no longer owns or operates OHCF. The current owner and operator of the facility is Lifestyles and Healthcare, Ltd., (Lifestyles) which acquired the facility from Okeechobee in the spring of 1990, following the submission of CON application 6150. Okeechobee was dissolved upon Lifestyles' acquisition of OHCF. On or about September 14, 1990, Lifestyles was issued a license by Respondent's Office of Licensure and Certification authorizing Lifestyles to operate OHCF. The effective date of the license, as indicated on its face, was June 19, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order (1) dismissing the instant petition on the ground that the issue raised therein has become moot as a result of Okeechobee's voluntary withdrawal of CON application 6150, and (2) declining to refund the certificate of need application filing fee paid by Okeechobee in connection with the submission of CON application 6150. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1990.
