The Issue Whether Mount Sinai Medical Center of Florida, Inc., has standing to initiate the proceeding in Case No. 03-2954CON to challenge the preliminary decision of the Agency for Health Care Administration to approve the application of Kendall Healthcare Group, Ltd., for a Certificate of Need authorizing the construction of an 80-bed satellite hospital in Dade County.
Findings Of Fact The Parties Mount Sinai owns and operates two acute care hospitals under a single license. The two comprise over 900 licensed beds, 575 of which are operational. Mount Sinai's main campus is the site of a general acute care hospital located in the incorporated area of Miami Beach, on the eastern edge of Miami- Dade County. Its second campus, located about one mile north of Mount Sinai, is that of the Miami Heart Institute, acquired by Mount Sinai in 2000. One of six statutory teaching hospitals in the state and a regional tertiary care center, Mount Sinai offers a variety of general acute care and tertiary services. These include open heart surgery and related procedures. Mount Sinai is also a "safety net" provider of hospital services for the Miami-Dade County community. Kendall is a 412-bed acute care hospital located at the intersection of Bird Road and 117th Avenue that serves west Miami. In addition to general acute care services, it provides tertiary services such as open heart surgery and neurosurgery. Approximately 95% of the patients and physicians at Kendall are of Hispanic origin. So is most of the administrative team at the hospital. English and Spanish are most commonly spoken at the hospital. (Tagalog can also be heard in the hospital because of the presence of nurses from the Philippines.) West Kendall Baptist, Inc. ("West Kendall Baptist"), is an affiliate of Baptist Hospital of Miami, an existing provider of acute care services in western Miami-Dade County. The applicant for CON 9674 to establish a 80-bed acute care satellite hospital in western Miami-Dade County, West Kendall Baptist Hospital, is a party to these consolidated proceedings by virtue of Kendall's petition in Case No. 03-2822CON and its own petition in Case No. 03-3096CON. West Kendall Baptist is not a party in Case No. 03-2954CON and did not take an active role in the proceedings with regard to Mount Sinai's standing to initiate the proceeding. The site of its proposed hospital is approximately three miles from the proposed site for Kendall's proposed satellite hospital. The Agency for Health Care Administration is the state agency authorized to evaluate and render final determinations on Certificate of Need applications in Florida. The West Kendall Area Bounded on the west by the Everglades, the West Kendall Area of Dade County is generally recognized as the area south of Bird Road, west of the Florida Turnpike and north of Southwest 216th Street. The area is served primarily by four hospitals. The hospital with the most market share in West Kendall is Baptist. South Miami Hospital, Inc. ("South Miami"), is the second largest provider of acute care hospital services to West Kendall residents. Kendall is a close third, providing approximately the same volume of patient days to the service area population as South Miami. The fourth hospital that provides any significant level of patient days to residents of West Kendall is Jackson Memorial Hospital South ("Jackson South"). There are no other hospitals based on market share that are significant providers of services to residents of West Kendall. The Applications Kendall filed CON Application No. 9675 to construct a satellite hospital (the "Tamiami Hospital") to provide general acute care services in the West Kendall Area. To that end, Kendall has placed a deposit on land located at 137th Avenue and 120th Street approximately five miles from the site of Kendall. The application calls for the de-licensure of 80 beds at Kendall so that there will be no net increase in beds in the health planning district with the establishment of the satellite hospital. Kendall's purpose in seeking the establishment of the 80-bed satellite hospital is two-fold. It will accommodate the population growth in the proposed service area. It will also alleviate delays in gaining access to hospital services caused by traffic congestion in the Kendall area. The Tamiami Hospital will offer general acute care hospital services, but not tertiary services. Three miles from the proposed site of Tamiami Hospital is the proposed site of the Baptist satellite hospital, the subject of West Kendall Baptist's application, CON Application No. 9674. Like Kendall, West Kendall Baptist's application is for a new 80-bed hospital to serve the West Kendall area. Just as in the case of Kendall, West Kendall Baptist's new hospital would not add new beds to the service district. The beds would be transferred from Baptist South, an underutilized hospital to help decompress Baptist, a hospital presently experiencing high utilization. In projecting utilization, each applicant assumed that the other would not be approved. The utilization projections of West Kendall Baptist were based on the assumption that 85% of its patient volume would be generated from patients who reside in West Kendall but are currently being served at Baptist's other area hospitals. The projections of Kendall were based on the assumption that the majority of the patient volume would be generated from taking market share away from Baptist's existing facilities and the further assumption that Baptist would not also have a simultaneous approval of a new hospital. The Motivation for Mount Sinai's Challenge Mount Sinai challenges Kendall's application on the supposition that if both of the Kendall and West Kendall Baptist applications are approved, Kendall will have to generate volume at the expense of existing providers other than Baptist if it is to meet its projected utilizations. Mount Sinai theorizes that a portion of Kendall's volume at Tamiami Hospital will be achieved at Mount Sinai's expense, at a time that Mount Sinai can ill afford to lose business. Mount Sinai did not challenge the West Kendall Baptist application because 85% of its patient volume is projected by the application to come from re-direction of patients that would have been served otherwise by Baptist hospitals. The potential of its volume of service to be affected by the approval of West Kendall Baptist's application, in Mount Sinai's view, is much less than the potential in the case of the Tamiami Hospital. Competitors? Kendall has never considered Mount Sinai to be a competitor. Prior to this case, Mount Sinai had never challenged a CON application of Kendall nor had Kendall ever challenged one filed by Mount Sinai. Until recently, Mount Sinai has not regarded Kendall as much of a competitor either. In the Official Statement for two separate bond offerings, one in the amount of $25,000,000, and another in the amount of $70,340,000, both dated May 23, 2001, Mount Sinai devoted a section to a discussion of "Demographics and Competition." The following appears in the "Demographics and Competition" section under a subheading entitled "Competing Hospitals": The Medical Center considers its principal, although not exclusive, competition to be Aventura Hospital and Medical Center, Cedars Medical Center, Mercy Hospital, Jackson Memorial Medical Center (operated by Miami- Dade County) and Parkway Regional Medical Center. Other important competitors within certain segments of the Medical Center's market are Baptist Hospital of Miami, Palmetto General Hospital, and Memorial Hospital of Hollywood. Kendall Ex. 5, at A-23. Kendall is not mentioned as a competitor. Physical lay-out of hospitals in Miami-Dade County and driving distance between the proposed site for the Tamiami Hospital and Mount Sinai support Kendall's claim that it and Mount Sinai are not engaged in serious competition. There are 16 hospitals within a 20-mile radius of the proposed site at Southwest 120th Street and Southwest 127th Avenue. Neither Mount Sinai nor Miami Heart Institute is among the 16. The driving distance from the proposed site at 120th Street and 137th Avenue is 23.9 miles to Mount Sinai and 24.4 to Miami Heart. It takes approximately 45 minutes to drive from Kendall to Mount Sinai if the traffic is not congested; otherwise it takes much longer. There are six hospitals along the most straight-forward drive (or in very close proximity to it) from the proposed site of Kendall's satellite hospital, Tamiami Hospital, to Mount Sinai: South Miami Hospital, Larkin Community Hospital, Health South Doctor's Hospital, Coral Gables Hospital, Mercy Hospital, Jackson Memorial Hospital, and South Shore Hospital. Another three lie between the proposed site and Mount Sinai and are within a few miles of the most direct drive between the two: Westchester General Hospital, Pan American Hospital, and South Shore Hospital. Overlap between medical staffs also indicates that Kendall and Mount Sinai are not competitors. There is insignificant overlap between the medical staffs of Kendall and Mount Sinai. The parties agree that medical staff overlap between existing providers is a criterion used to determine adverse impact to non-approved or non-applicant providers caused by expansion of beds or programs at the approved provider or, as in this case, the establishment of a satellite hospital. See Tr. 426. There are 16 physicians on staff at Kendall who, during calendar year 2002, were the attending physicians for discharges that occurred at Mount Sinai or Miami Heart. Of the 16, 15 had discharges at Mount Sinai. (The physician with ID FLME0053375 had discharges at Miami Heart but none at Mount Sinai, see Kendall Ex. 4, p. 23.) At Miami Heart, 12 of the 16 had discharges. (The physicians with IDs FLME 005564, FLME 0055703, FLME 0054181 and FLME 0045129 had discharges at Mount Sinai but none at Miami Heart, id.) Of the 12 staff members with discharges at Miami Heart, they had 450 discharges or 5.9% of the total number of discharges (7,610) at the facility for the year. At Mount Sinai, the overlap in terms of percentage of discharges, was even less. Of the 15 staff members who had discharges at Mount Sinai, they accounted for 282 discharges or 1.7% of the 16,381 total discharges for the year at Mount Sinai. The degree of overlap between Kendall physicians and Mount Sinai or Miami Heart physicians can only be characterized as insignificant, an indicator that the Mount Sinai will not be substantially affected by the approval of Kendall's CON. The Primary Service Area Based on the experience of South Miami, it is reasonable for Kendall to estimate that approximately 90% of the admissions to the proposed Tamiami Hospital will come from a primary service area (the "PSA") encompassing seven zip codes: 33177, 33183, 33185, 33186, 33187, 33193, and 33196. These seven zip codes plus zip code 33175, a zip code not included in the PSA, comprise the West Kendall Area. Zip code 33175, the single zip code in West Kendall not included in the PSA, is the site of Kendall Regional Medical Center. None of the zip codes in the PSA Kendall has designated in its application are part of Mount Sinai's service area. The following appears in Mount Sinai's Official Statements referred to in the "Demographics and Competition" section above under the sub-heading "Service Area": For planning purposes, the Medical Center defines its primary service area as the communities of Miami Beach, Surfside, and Bal Harbour, and its secondary service area as the communities of North Miami, North Miami Beach, Sunny Isles and Aventura. Both the primary and secondary service areas lie within Miami-Dade County. Mount Sinai's tertiary service area includes mainland Miami-Dade County communities such as Miami Springs, Hialeah, Hialeah Gardens and West Miami, as well as the Broward County community of Hallandale. Kendall Ex. 5, page A-20. There is no reference to Kendall or the West Kendall Area as part of Mount Sinai's service areas. Population Growth West Kendall is one of the few areas in Miami Dade County where there is still room for growth. Its population growth has been and is reasonably expected to continue to be robust. The 2003 population for the area is 261,150. The projected rate of growth for the area from 2003-2008 is 12.1%, with the actual population anticipated to grow by an additional 31,482. Mount Sinai provides an insignificant level of service in the proposed Tamiami Hospital's PSA. If one holds the use rate constant, when population growth in the service area is considered, the impact of Tamiami Hospital on Mount Sinai is negligible. In the year 2010, factoring in population growth, Mount Sinai will realize an increase of 102 patient days with approval, construction and operation of Tamiami Hospital. The same is true for Miami Heart Institute. There will not be a substantial impact on Miami Heart. By 2010, as in the case of Mount Sinai, population growth will offset any losses incurred by Miami Heart due to the establishment of Tamiami Hospital. Patients from the PSA Patients who leave the Tamiami PSA to seek hospital services at Mount Sinai or Miami Heart are typically elective patients referred by physicians rather than emergency room admissions or HMO referrals. These patients by-pass more proximate hospitals because of Mount Sinai's array of advanced medical and tertiary services favored by physicians or unavailable at existing facilities serving the PSA. In calendar year 2002, Mount Sinai drew from the PSA 174 patients, slightly more than 1% of the total volume of patients at Mount Sinai for the year (16,366). The 174 patients include those who received open heart surgery and other specialized services that will not be offered at Tamiami Hospital. Of the 7,610 patients seen at Miami Heart in calendar year 2002, 91 were discharges from the PSA, less than 1.2% of the total. If Tamiami Hospital is approved, patients treated for open heart surgery and other specialty services at Mount Sinai and Miami Heart are not likely to be diverted to Kendall. Cultural and Demographic Differences Although the ethnic make-up of its patient population has become more Hispanic in recent years, Mount Sinai is not considered a Hispanic hospital. In contrast, more than 91% of the patients from the PSA discharged from Kendall are identified as white Hispanic. It is appropriate to consider Kendall as a Hispanic hospital, moreover, because it is in an area of Miami- Dade County that has a high concentration of Hispanic residents, a bilingual culture and administrative and clinical staffs that are largely Hispanic. For the 12 months ending June 30, 2002, Kendall's patients originating within the PSA that were Medicare patients were a number significantly higher than HMO/PPO patients. Just the opposite was true for Mount Sinai and Miami Heart patients over the same time period. This finding supports the finding that Mount Sinai/Miami Heart patients coming from the PSA constitute a younger, more mobile group than the patients from the PSA treated at Kendall. In all likelihood, this younger, mobile group will continue to seek services at Mount Sinai and Miami Heart for the reasons that they have sought them out in the first place. The establishment of Tamiami Hospital is not likely to affect this dynamic. Recruitment of Staff The extent to which nursing staff at Kendall reside in the same zip codes as nursing staff at Mount Sinai is minimal. The zip code area from which Mount Sinai derives 51% of its registered nurses contributed only 9.9% of Kendall's RN work force. The area from which Mount Sinai drew 75.2% of its registered nurses contributed only 12% to Kendall's RNs. It is not likely that Kendall would recruit administrative staff from Mount Sinai. A statewide shortage of nurses has been in effect for some time. Miami Dade County, however, is not experiencing the shortage to the same extent as other parts of the state. One reason is that Miami-Dade Community College and Broward County Community College rank one and two among community colleges nationally in the number of nursing graduates. To the extent the shortage is having an impact on Miami Dade County, there are methods for dealing with it. Systems adopted by All About Staffing, a subsidiary of Hospital Corporation of America and a provider of clinical staffing services to Kendall, present a promising future for the availability of nurses. Kendall and Mount Sinai, moreover, attract different nurses in terms of culture and expectations. Nurses who work at Kendall are not generally interested in working at Mount Sinai. Nurses who work at Mount Sinai are not generally interested in working at Kendall. Approval of Kendall's application is not likely to have an impact on Mount Sinai's ability to recruit and retain nurses. AHCA's Position The Agency referred Mount Sinai's petition, taking it "at its word when it alleged that it would be 'substantially affected' if the Agency were to grant the CON application . . . that Mount Sinai challenges." AHCA's Brief and Proposed Recommended Order on Mount Sinai's Lack of Standing, p. 2. At this stage of the proceeding, the Agency sees itself as sufficiently informed to support dismissal of the petition for lack of Mount Sinai's standing. At hearing, Jeffrey N. Gregg, Chief of AHCA's Bureau of Health Facility Regulation testified in support of dismissal for lack of Mount Sinai's standing. The facts supporting the Agency's position are summarized in 1 through 6 of the Agency's Proposed Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration dismiss the petition of Mount Sinai Medical Center of Florida, Inc., in DOAH Case No. 03-2954, for lack of standing. DONE AND ENTERED this 12th of March, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2004. COPIES FURNISHED: Stephen A. Ecenia, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 Robert A. Weiss, Esquire Karen A. Putnal, Esquire Parker, Hudson, Rainer & Dobbs, LLP The Perkins House, Suite 200 118 North Gadsden Street Tallahassee, Florida 32301 Geoffrey D. Smith, Esquire Susan C. Hauser, Esquire Blank, Meenan & Smith, P.A. 204 South Monroe Street Post Office Box 11068 Tallahassee, Florida 32302-3068 Tom R. Moore, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
Conclusions Having reviewed the Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review dated March 6, 2010 (Exhibit 1) and the Notice of Voluntary Dismissal of Petition for Hearing filed in the Division of Administrative Hearings by the Petitioner (Exhibit 2), and being otherwise fully advised of the premises, it is ORDERED: 1. The Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review is upheld and the Petitioner's initial application for home health agency licensure is WITHDRAWN. 2. The above-styled case is closed. DONE and ORDERED on this day 30 of _Nore-br , 2010, in Tallahassee, Leon County, ies ELIZA EK, INTERIM SECRETARY AGENCY FO ALTH CARE ADMINISTRATION Filed December 2, 2010 10:11 AM Division of Administrative Hearings
Findings Of Fact The Change of Ownership In March 1993, Galen filed an application for a CON to add a ten-bed Level II Neonatal Intensive Care Unit (NICU) at its hospital known as Westside Regional Medical Center, located in Broward County in District X. This application, CON No. 7248, was initially denied by the Agency. Galen filed a Petition for Formal Administrative Hearing on August 12, 1993, challenging that denial and seeking approval of its application. In the same batching cycle, Memorial filed an application for a ten bed Level II NICU, Con No. 7249, which the Agency also preliminarily denied. On August 13, 1993, Memorial filed its petition for formal administrative hearing. The cases were consolidated for hearing by Order entered September 3, 1993. Two existing providers of Level II NICU services in the District sought and were granted leave to intervene: NBHD and Plantation. On January 7, 1994, NBHD filed a Motion for Summary Recommended Order. The basis for summary relief was that subsequent to the filing of its application for the Westside facility, Galen had sold or transferred that facility to Columbia and that Columbia had become the new license holder for the facility. Galen responded in opposition that no material facts set forth in the application for the CON to establish the Level II NICU at Westside had changed as a result of the transfer to Columbia. Furthermore, Galen contends that its application must be permitted to undergo the de novo comparative review process. The Galen application was deemed complete, preliminarily reviewed and initially denied. The basis of the initial denial was unrelated to any change in ownership. Galen timely sought de novo comparative review by invoking the administrative hearing process on August 12, 1993. The application has not been withdrawn. On November 5, 1993, Galen entered into a purchase and sale agreement with Columbia. Under the terms of that agreement, Columbia undertook legal responsibility for all liabilities and contractual obligations related to the Westside facility. As required by law, Columbia filed a change of ownership application (CHOW) with the Agency which ultimately issued a new license to Columbia for the operation of the Westside facility. The Agency's CHOW file establishes that the Agency received and reviewed the following documents, among others, related to Columbia: A list of the officers and directors of Columbia; Columbia's articles of incorporation; the certificate of incorporation of Columbia issued by the State of Florida; Columbia's audited financial statements; affidavits asserting that Columbia would accept all outstanding liabilities due and payable to the State of Florida, including but not limited to any outstanding liabilities to the Medicaid Program; assertions that Columbia would correct deficiencies, if any, on the facilities most recent license survey; and assertions that Columbia would comply in all respects with applicable provisions under Chapter 766, Florida Statutes (regarding the Florida Patient's Compensation Fund). The deposition of Mr. James A. Cruickshank, chief Operating Officer for Westside Regional Medical Center, was admitted into evidence by NBHD. Mr. Cruickshank testified that he had been employed at Westside since 1987. He is directly responsible for the operations of the facility, and held that position and those duties both before and after the transfer of assets to Columbia. He participated in the preparation of the CON application and is familiar with its contents. Mr. Cruickshank testified that, as Chief Operating Officer, he was familiar with the following matters, none of which had changed, or were expected to vary from the representations made in the CON application, as a result of the transfer of assets to Columbia: Administration - no change; Admission and discharge policies - no change; Operational Management - no change; Personnel - no change; Staffing - no change; Medical staff - no change; Medical committees - no change; Financial personnel - no change; Charges of fees - no change; Financial policies or procedures - no change; Budgeting process - no change; Financial commitments - no change; Projected costs - no change; Financial feasibility - no change; Data or underlying assumptions - no change; Admissions or discharge data - no change; Average length of stay data - no change; Scope of services - no change; Level of proposed services for NICU unit, including: Nursing, Specialty Nursing, Surgical, Emergency, Respiratory therapy, X-Ray; Obstetrics; Ultrasound; Clinical laboratory; Nutritional; Anesthesia; or social services - no change from those represented in the CON application. Quality of care - no change; Standards and qualifications for medical staff - no change; Ratios for medical specialists - no change; Nursing staff qualifications, specialists or ratios - no change; Patient stations, equipment or physical plant and layout - no change; Licensed bed capacity - no change; Accessibility of services - no change; AA. Extent to which proposed NICU unit will address patient need in district - no change; BB. Extent to which the medically under served individuals in the district use or will use the Westside facility - no change; CC. Ability of the facility to meet any federal regulations requiring uncompensated care, community service or access by minority and handicapped service to federally assisted programs - no change; DD. Utilization data - no change; EE. Recruitment - no change; Mr. Cruickshank's testimony in this regard is accepted. Mr. Cruickshank testified that the financial feasibility and stability of this proposal is strengthened by the Columbia acquisition: Westside is the only facility owned by Columbia; the only capital projects or expenditures for which Columbia would be responsible would thus be significantly less than the $27,755,000 listed on Schedule 2 of the CON application; and the source of funds for the proposed NICU is from operating expenses. Mr. Cruickshank's testimony in this regard is also accepted. Mr. Cruickshank, testified that Galen's board no longer has operational responsibility for or exercises any control over Westside Regional Medical Center. /2 Galen is no longer financially committed to the proposed project. Galen's letter of intent was accompanied by a resolution of its board. Galen's CON Application No. 7248 included a listing of Galen of Florida, Inc.'s board. Columbia and Galen do not share any of the same board members. Mr. Cruickshank testified that Galen's CON application only provided Galen's audited financial statements, and did not contain Columbia's audited financial statements. No audited financial statements for Columbia have been provided to AHCA in relation to CON application 7248. Statutory and Regulatory Criteria Rule 59C-1.008, Florida Administrative Code (the Rule), provides an outline for what is required of a CON applicant to have an application accepted and reviewed by AHCA. The Rule implements the statutory criteria in Section 408.037, Florida Statutes, which specifies the CON "Application Content" requirements. Section 408.037, Florida Statutes, provides, in part, that an application for a CON shall contain: A statement of the financial resources needed by and available to the applicant to accomplish the proposed project. This statement shall include: A complete listing of all capital projects . . . pending, approved, or underway in any state at the time of the application . . .[and] shall include the applicant's actual or proposed financial commitment to those projects and an assessment of their impact on the applicant's ability to provide the proposed project . . . (c) A detailed financial projection . . . [which] shall include a detailed evaluation of the impact of the proposed project on the cost of other services provided by the applicant . . . An audited financial statement of the applicant . . . includ[ing] . . . a balance sheet and a profit-and-loss statement of the two previous fiscal year's operation . . . A certified copy of a resolution by the board of directors of the applicant , or other governing authority if not a corporation, authorizing the filing of the application; authorizing the applicant to incur the expenditures necessary to accomplish the proposed project; certifying that if issued a certificate, the applicant shall accomplish the proposed project within the time allowed by law and at or below the costs contained in the application; and certifying that the applicant shall license and operate the facility. [Emphasis added.] Section 408.037, Florida Statutes. Elizabeth Dudek, Chief of CON and Budget Review for Respondent AHCA, testified that an applicant's failure to comply with the statutory requirements concerning submission of the letter of intent and board resolution would result in the rejection of the application. Pursuant to the above statutory criteria, if an applicant fails to submit audited financial statements, AHCA would deem the application incomplete, and the application would be withdrawn from consideration. The Rule also incorporates the letter of intent and board resolution provisions found in Section 408.039(2), Florida Statutes. This statute provides: . . . a letter of intent shall be filed by the applicant . . . [which] describe[s] the proposal with specificity, including proposed capital expenditures, number of beds sought . . . [and the] identy of the applicant, including the names of those with controlling interest in the applicant. The letter of intent shall contain a certified copy of a resolution by the board of directors of the applicant . . . authorizing the filing of the application described in the letter of intent; authorizing the applicant to incur the expenditures necessary to accomplish the proposed project; certifying that if issued a certificate, the applicant shall accomplish the proposed project within the time allowed by law and at or below the costs contained in the application; and certifying that the applicant shall license and operate the facility. [Emphasis added.] Section 408.039(2)(a-c), Florida Statutes. Ms. Dudek testified that, pursuant to this statute, the licenseholder for Westside Regional Medical Center is required to be the applicant for a CON. At the time Galen submitted the letter of intent, Galen was the licenseholder for Westside Regional Medical Center. Columbia has not filed a letter of intent or board resolution for CON Application No. 7248. In the case of an existing licensed facility, the "applicant" referred to in the statute and the Rule must attest that they will license and operate the facility, and thus is required to be the facility's licenseholder. If AHCA issued a CON to the applicant, Galen, for the proposed project, Galen would not be able to meet the requirement that it license and operate the project because Galen no longer holds the license for Westside Regional Medical Center. Rule 59C-1.008(1)(n), Florida Administrative Code, provides: The applicant for a project shall not change from the time a letter of intent is filed, or from the time an application if filed in the case of an expedited review project, through the time of the actual issuance of a Certificate of Need. Properly executed corporate mergers or changes in the corporate name are not a change in the applicant. /3 Nothing in the statute specifically mandates that the licenseholder cannot change or that such change compels involuntary withdrawal of the application from comparative review. Ms. Dudek testified that when she received notice that AHCA had issued a new license which changed the ownership of Westside Regional Medical Center of Columbia, she determined that, pursuant to Rule 59C-1.008, the CON application filed by Galen was no longer an application that could be reviewed because the entity submitting the application was no longer the licenseholder. Ms. Dudek explained that in circumstances where the licenseholder sells the facility to another corporation who then becomes the new licenseholder, as is the case here, the rule requires that AHCA reject the CON application because it would not contain a letter of intent, board resolution, audited financial statements, capital project listing and proforma's for the acquiring entity. Galen did not offer testimony to show that the change in the applicant had occurred as a corporate name change or as a corporate merger. Ms. Dudek testified that subsequent to the omissions period, applicants are not permitted to amend the application, and AHCA is prohibited by rule from considering subsequent events in the application review process. Rule 59C-1.010(2)(b), Florida Administrative Code, provides in pertinent part: Subsequent to an application being deemed complete by the agency, no further application information or amendment will be accepted by the agency. Ms. Dudek testified that the purpose for this prohibition is to set forth parameters in terms of what information will be reviewed for a particular period of time, so that each applicant knows what the agency considers, and that it is considering the same information for all applicants as of the date each is deemed complete. Without amending or supplementing the application, there is no outlet for Columbia to produce, or for the agency to consider, information concerning the new licenseholder. Amending and supplementing the application is prohibited by Rule 59C-1.010, Florida Administrative Code, as discussed in finding of fact #31. Ms. Dudek testified that when an existing facility submits a CON application, the "applicant" is required by Agency rule to be the current licenseholder. Rule 59C-1.008(1)(m), Florida Administrative Code, provides in pertinent part: An applicant for a project subject to Certificate of Need review which affects an existing licensed health care facility . . . must be the license holder. . . . If agency records indicate information different from that presented in the letter of intent with respect to the identification of the holder of the license and the licensure status, then the agency records create a rebuttable presumption as to the correctness of those records and therefore the application will be rejected. Ms. Dudek testified that agency records show that Columbia currently holds the license for Westside Regional Medical Center. Mr. Cruickshank confirmed that Columbia, and not Galen, is the current licenseholder for Westside Regional Medical Center.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a summary final order be entered dismissing the Petition for Formal Administrative Hearing filed by Galen of Florida, Inc., d/b/a Westside Regional Medical Centers in this case. DONE and ORDERED this 11th day of May 1994, in Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of May 1994.
