Findings Of Fact The evidence adduced at the hearing revealed that the issue of whether or not a member of the IBPO could receive quality legal representation was in fact a key issue in the organizational campaign. The legal issue is reflected in a "Mayday" flyer which is attached as Exhibit A to the Petitioner's objections. Based on the testimony adduced at the hearing, it suffices to say that the "Mayday" flyer was not authorized by the IBPO. Additionally it was noted that there are significant changes in the wording contained in Exhibit A as opposed to another "Mayday" flyer (Exhibit C, which is attached to Petitioner's objection) with significant portions of the changes in Exhibit A being as follows: (a) The date on the face of the Jacksonville publication was changed from 1971 to 1975. (b) The fourth paragraph of the original flyer (Exhibit C) was changed from his policy is "NO LEGAL ASSISTANCE WILL BE GIVEN IN CRIMINAL MATTERS THAT OCCURRED PRIOR TO THE IBPO TAKING CONTROL IN MAY, 1974" to quote his policy is "no legal assistance will be given in legal matters occurring prior to the contract in May, 1974." The "Mayday" flyer was posted and distributed in at least two of the employer's facilities between the hours of 5:00 P.M. and 10:00 P.M., one day prior to the election. There was evidence introduced at the hearing indicating that a significant number of employees viewed the "Mayday" flyer, however, the exact number is unknown. It is significant to note that the flyer was posted in a facility in which a significant number of employees frequent and the posting occurred at a time when two thirds of the employee complement entered the facility in which the flyer was posted in preparation for a shift change. Documentary evidence indicated that the original "Mayday" flyer i.e., Exhibit C, of Petitioner's objections, was prepared by John J. O'Conner for distribution in Petitioner's Washington, D.C., Local, in connection with that local's monthly scheduled meeting. There was no evidence indicating that the flyer was authorized by the IBPO to be posted in the Jacksonville, Florida, area for its organizational campaign. Evidence revealed that the reason the original "Mayday" flyer was drafted was to force criticism about the IBPO's legal representation in Washington, D.C. While the purposes for which the article was drafted and posted in the Washington, D.C. local, may have been as stated, such is not critical for resolution of the issues posed in this case. The fact is that the flyer was posted at the main precinct and was observable by numerous persons eligible to vote in the election. As stated, evidence reveals that approximately two-thirds of the eligible voters passed through the main precinct during the hours in which the "Mayday" flyer was posted. In weighing the impact of the objection, consideration must be had to the fact that there were at least approximately ten civil suits pending against eligible voters. When consideration is given to the fact that several employees were concerned about the quality and/or caliber of legal representation afforded by the IBPO and couple that fact with the notation that there were suits filed against eligible voters in addition to the "eleventh hour" posting of the "Mayday" flyer, no effective reply could be had. It is thus logical to conclude that the nature of the misrepresentation and the flyer may have had some bearing on the election results. While this conclusion rests on the aforementioned factors, the undersigned also noted that the FOP prevailed in the election by a margin of approximately 19 out of the approximately 599 valid votes cast. Various agencies, including the National Labor Relations Board have given consideration to the closeness of the vote in assessing the impact of a misrepresentation upon the results of an election. See for example, NLRB v. Southern Home Health Corporation, 514 F.2d 1121 at 1125 (7th Circuit, 1975). Turning to the facts in this case, it is foreseeable that had the, for example, approximately ten employees who cast ballots in favor of the FOP rather than the IBPO as a result of the information contained in the flyer, it is realistic to conclude that the election results may have been significantly altered had the facts been accurately represented in the flyer. Based thereon I conclude that the representations contained in the "Mayday" flyer involved a material misrepresentation that constitute grounds for setting aside this election. I shall so recommend. The second alleged objectionable conduct raised is whether or not a speech by detective C. L. Porter made on or about November 5, 1975, at approximately 8:15 A.M. which is within the 24 hour period before the election is violative of Section 447.509(1)(a), F.S., and whether such speech was violative of the rule enunciated by the National Labor Relations Board in Peerless Plywood Co., 33 LRRM 1151, 1152 (1953). The evidence on this objection is that detective Porter, a unit member, spoke at a regularly scheduled required meeting of all detectives in a working area on working time within 24 hours preceding the election date. Detective Porter was present at the meeting in his capacity as a burglary detective. The meeting is a regularly scheduled one which is held on a daily basis to advise all detective unit employees of the status of burglary investigations and claims. During the course of these meetings, all detectives read their daily assignments which serve as a sounding board to advise all employees in that unit of the status of investigations and claims. After reading his update sheet, detective Porter made a statement that he had made a decision to vote for the Intervenor due to "certain things" he had learned about the Petitioner, which things he did not elaborate on. While it is clear that several management officials were present at the time and heard detective Porter's speech, no effort was made to interrupt his remarks. On the other hand, it is also clear, as evidenced by the testimony, that all employees felt free to voice their opinions and many of the employees who testified indicated that they paid little if any credence to detective Porter's remarks as they related to the alleged pro-FOP speech. Further, evidence reveals that they did not feel that they were intimidated or coerced into casting a free and untrammeled ballot in the election the following day. It is also clear that others, as evidenced by their testimony, felt free to reply to Porter's speech as they desired. Giving consideration to the nature of detective Porter's speech, and in view of the fact that other employees felt free to openly reply or give a speech supportive of the Petitioner, the undersigned is of the opinion that this speech did not interfere with the conduct of the election. Accordingly I shall recommend that it be overruled. The third alleged objectionable conduct centered around a reference in articles appearing in the Jacksonville Journal and the Jacksonville Times Union on November 5 and 6, respectively, to the effect that the IBPO was a national union which has been organizing police officers as well as fire departments for the past several years and whether this was a material misrepresentation of a major campaign issue which precluded an opportunity for reply and was therefore sufficient to dissipate voting employees' free choice to such an extent that it materially affected the election results. The evidence on this objection is that police information officer, Mike Gould, was the source of the two news paper articles alleged to be objectionable. News Reporters had approached Gould on the morning of November 5, 1975, seeking a story. Gould related that since there was nothing of consequence regarding the regular police beat, he spoke to reporters concerning the forthcoming election. Gould denied stating that the IBPO represented fire and police units. Gould testified that he gave reporters some background on the changing state legislative law which allowed collective bargaining for police and fire units and since that time, there has been some aggressive recruiting by various labor and fraternal organizations, to act as bargaining agents for police and fire units around the state. Gould did not supply any additional information. He was not solicited by any member of the FOP to give out the above information. After having been shown the article and as his best recollection reflects, he read the article the following day that it appeared in the Jacksonville news papers. Gould related that the author of the article apparently became confused or took his statements out of context as far as showing the IBPO to be a bargaining agent for both police and fire units. He went further to indicate that the name of the IBPO speaks for itself in that it states for police operations so apparently, according to Gould, it was a mistake on the reporter's part. Based on the name of the organization, Gould related his opinion that he did not feel that a police officer could be misled by the news paper articles in question. He spoke of the various experience that police officers have in talking to reporters and knowing that there is many a slip between the "cup and the lip" and that they themselves have been frequently misquoted. Therefore, in his opinion, he felt that police officers really did not place much credence on news paper stories. After the story appeared in the Jacksonville Journal and later that day in the Jacksonville Times Union, Gould recalled having received a telephone call from a gentleman who identified himself as an IBPO vice president, Harry Breen. Breen, according to Gould, related his displeasure about the story and upon learning of this, Gould indicated that the reporter misquoted him as to efforts by the IBPO to recruit both police and fire personnel. In concluding, Gould related to Breen that the story as it appeared, was not one drawn from information that he had given as police information officer. Later in his testimony, Gould testified that he related to the reporter that IBPO and the PBA were organizing police units statewide and that he confined his remarks to police and fire units inasmuch as they generally group together and the interest by tide reporters was relative to police and fire units. Gould, as evidenced by his testimony, performs basically public relations type duties and plays no part in management or other policy decisions or discussions. Mr. Pace, the reporter who authored the report in the Jacksonville Journal, indicates that he had been a reporter for approximately 30 days at the time the article appeared in the newspaper. His testimony is substantially in agreement with that of officer Gould. Based on the tenor of the remarks and the fact that no employee who testified within the unit indicated that they were swayed or otherwise intimidated or coerced into feeling that the IBPO recruited fire unit personnel for collective bargaining purposes, the undersigned is of the opinion that the articles which appeared in the two daily newspapers did not have any affect on employees' freedom of choice which precluded an opportunity for reply. Nor was there sufficient gravity by such articles to dissipate employees' freedom of choice to such an extent that they, in any manner, materially affected the election results. I shall therefore recommend that this objection be overruled.
Recommendation Based on my conclusions that objections numbered two and three of this report are lacking in merit, I recommend that they be overruled. I further find that the misconduct alleged in objection numbered one is violative of employees' freedom of choice and was a material misrepresentation of a hotly contested issue and was made at such a time that employees could not reasonably be expected to themselves evaluate the truth or falsity of the statements and was such a material misrepresentation that the election should be set aside. Based on my conclusions that objection one has merit, on this basis I recommend that the election be set aside and a new election scheduled as soon as practical. DONE and ENTERED this 17th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") regarding Certificate of Need ("CON") CON Application No. 10117. This matter concerned the establishment of a 24-bed comprehensive medical rehabilitation program for which the Agency issued a notice of preliminary intent to deny. This matter also concerned Application No. 10118, which proposed the establishment of a 34-bed comprehensive medical rehabilitation hospital which the Agency had preliminarily approved as submitted by Healthsouth Rehabilitation Hospital of Martin County, LLC. On July 22, 2011, JFK Medical Center Limited Partnership d/b/a JFK Medical Center (“JFK”) filed a Petition for Formal Administrative Proceeding to contest the noticed preliminary intent to deny its CON Application No. 10117 and to contest the preliminary approval of HealthSouth Rehabilitation Hospital of Martin County, LLC of CON 10118, which the Agency Clerk forwarded to the Division of Administrative Hearings (‘DOAH”) and assigned DOAH Case No. 11-3638CON. On July 22, 2011, TENET ST. MARY'S, INC. D/B/A ST. MARY'S MEDICAL CENTER (“Tenet St. Mary”) filed a Petition for Formal Administrative Hearing to contest the Agency’s preliminary approval of CON 10118 to HealthSouth Rehabilitation Hospital, which was forwarded to DOAH and assigned DOAH Case No. 11-3635CON. On September 2, 2011, JFK filed a Notice of Voluntary Dismissal. On September 6, 2011, DOAH entered an Order Severing Cases DOAH Case Nos. 11-3638CON and 11-3848CON from 11-3635CON so that an Order Closing File could be entered in DOAH Case No. 11-3638CON and as to Case No: 11-3648CON which the ALJ determined was rendered moot by the voluntary dismissal. On September 6, 2011, Tenet St. Mary filed a Notice of Voluntary Dismissal dismissing its Petition (DOAH Case No. 11-3635CON). On September 7, 2011, DOAH entered an Order Closing File in DOAH Case No. 11-3635CON. IT IS THEREFORE ORDERED AND ADJUDGED THAT: 1. The voluntary dismissals of JFK and St. Mary and the Order Closing File by DOAH are hereby acknowledged and accepted. 2. The Petitions filed by Tenet St. Mary and JFK are hereby dismissed. 3. Each party shail be solely responsible for its respective costs and attorney’s fees. 4. The Agency action regarding CON 10118, awarding the establishment of a 34-bed comprehensive medical rehabilitation hospital to Healthsouth Rehabilitation Hospital of Martin County, LLC is upheld. 5. The above-styled cases is hereby closed. DONE and ORDERED this 271 day of _Seplember 2011, in Tallahassee, Florida. Elizabeth Dudek, Sécfetary AGENCY FOR HEAL{H CAR
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") regarding Certificate of Need (“CON”) Application No. 10198, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. The Agency preliminarily approved the application. 1. On December 10, 2013, the Agency published notice of its preliminary decision to approve CON Application 10198, submitted by Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. 2. On December 30, 2013, Memorial Healthcare Group, Inc. d/b/a Memorial Hospital Jacksonville (“Memorial”), timely filed a petition for formal administrative hearing to contest the preliminary approval of CON Application 10198. 3. The matter was referred to the Division of Administrative Hearings (DOAH), where it was assigned Case No. 14-0123CON. Filed July 21, 2014 1:02 PM Division of Administrative Hearings 4. On July 3, 2014, Memorial filed a Notice of Voluntary Dismissal. 5. On July 7, 2014, the DOAH issued an Order Closing File and Relinquishing Jurisdiction to the Agency. It is therefore ORDERED: 6. The Agency’s preliminary decision to approve CON Application No. 10198 is UPHELD subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this f x day of eeley , 2014. Elizabeth Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below- BE 45 named persons by the method designated on this SL K day of a , 2014. —4 : FS Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration Lorraine. Novak@ahca.myflorida.com (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) Seann M. Frazier, Esquire Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 Sfrazier@phrd.com Jlr@phrd.com (Electronic Mail) Karl David Acuff, Esquire Law Offices of Karl David Acuff 1615 Village Square Blvd., Suite 2 Tallahassee, Florida 32309-2770 Kdacuff@fioridacourts.com (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration James.McLemore@ahca.myflorida.com (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration Marisol. Fitch@ahca.myflorida.com (Electronic Mail)
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.
Findings Of Fact On or about March 30, 1990, the Respondent sought proposals for supplementary nursing services at South Florida State Hospital, Pembroke Pines, Florida, through RFP-595-561. The responses to this RFP were to be received by 1:00 P.M. on April 27, 1990, by a designated individual at a specific location set forth in the RFP, with the response opening to occur immediately thereafter. The Petitioner and Intervenor timely filed responses to this RFP. As part of the proposal rating sheet set forth in the RFP, a "fatal items checklist" was included, along with the statement that, "A 'NO' to any of the following requirements will automatically remove the proposal from further consideration." Item 4 of the "fatal items checklist " poses the question, "Did the proposer submit proof of liability and workers' compensation insurance, which included insurer name, address, phone number, policy number, policy effective and expiration date." On or about May 16, 1990, the Respondent notified all entities that filed a response to this RFP of its intent to award this contract for services to Unity Healthcare Holding Company, a non-bidder, and thereafter Petitioner timely filed its notice of protest concerning this award. Petitioner claims that its response should not have been deemed nonresponsive for failure to include evidence of insurance, and that either Intervenor's response should also be deemed nonresponsive, or that both should be considered and the award made to Petitioner. In pertinent part, RFP-595-561 states that any provider responding to this RFP "must submit proof of current liability and workers' compensation insurance" (Section B-1-d-1-f at page 3 of Joint Exhibit 1), the Respondent reserves the right to reject any and all proposals or waive minor irregularities not having a significant adverse effect on overall competition, cost or performance, when in the best interest of the State (Section B-2-i at page 7), each provider must submit evidence of organizational capability, including a table of organization, a synopsis of its corporate qualifications, and a copy of its most recent financial statement or audit (Section C-5 at page 12), and specifies that the award recommendation will be based upon a point scoring evaluation of each proposal in the three general categories of project understanding, organizational capacity, and cost analysis (Section D at page 13, and Attachment VI at pages 34-35). There is no dispute that Petitioner failed to include a copy of its liability and workers' compensation insurance coverage at the time it filed its response, and that this is listed as a "fatal item". The parties have stipulated that a representative of Petitioner arrived at the place designated for filing of responses at 12:40 P.M. on April 27, 1990, the date specified for filing of responses, but that the person designated in the RFP to receive responses was not at that location. It was further stipulated that Petitioner's representative searched for the person designated to receive responses until 12:58 P.M., when that person was located, and the Petitioner thereupon filed its response. However, Petitioner argues that this delay in finding the designated person to receive its response caused it to fail to notice that a copy of its insurance coverage was not included in its response. Petitioner urges that if the designated person had been at the proper location at 12:40 P.M. when Petitioner arrived to file its response, they could have looked over the response and found this deficiency, which could then have been corrected. While it is recognized that Petitioner has been the provider of the services which are the subject of the RFP at issue in this case, nevertheless, there is no evidence in this record that it had liability and workers' compensation insurance coverage, which complies with the requirements of this RFP, when responses were opened on April 27, 1990. The Petitioner offered no additional evidence on this point at hearing, and therefore, it is found that the Respondent properly determined that Petitioner was nonresponsive to this RFP since it failed to comply with a provision which was specifically designated a "fatal item", and which therefore could not be waived as a minor irregularity. The argument which Petitioner presented attributing its failure to the actions of the Respondent's representative is not persuasive since it is purely speculative, unsupported by any evidence in the record, and is an unwarranted attempy to shift the responsibilty for compiling and filing a response to an RFP from a potential bidder to the agency requesting proposals, a position for which there is no support in law or fact. The evidence presented at hearing concerning Intervenor's response to this RFP establishes that its response must also be rejected as nonresponsive. Intervenor, Unity Staffing Services, is the entity which filed this response, but the liability and workers' compensation insurance coverage which was included in this response was issued to Unity Placement Services, Inc., and not to the Intervenor. Evidence offered at hearing by Intervenor that it, Unity Staffing Services, Inc., has the required insurance coverage is unpersuasive since this certificate of insurance bears an issue date of July 26, 1990, approximately three months after the deadline for filing of responses to this RFP. Additionally, the name of the vendor shown on Intervenor's Form PUR:7033 is Unity Healthcare Holding Company, Inc., not Intervenor, and it was to Unity Healthcare Holding Company, Inc., that Respondent intended to award this contract (Joint Exhibit 5). Neither Unity Healthcare Holding Company, Inc., nor Unity Placement Services, Inc., are registered with the Department of Business Regulation to operate as a health care services pool in the State of Florida (Joint Exhibit 6). It is, therefore, apparent that the Respondent erroneously proposed to award this contract to a non-bidder, Unity Healthcare Holding Company, a distinct and separate entity from Unity Placement Services, Inc., and Intervenor, Unity Staffing Services, Inc., the actual bidder in this case. It is found that it would be in the best interest of the State for the Respondent to reject all responses received to RFP-595-561, and to reissue this RFP for supplementary nursing services at South Florida State Hospital.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order rejecting all responses received to RFP-595-561, and reissuing this request for proposals. DONE AND ENTERED this 14th day of November, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 14th day of November, 1990. APPENDIX Rulings on the Petitioner's Proposed Findings of Fact: 1 Adopted in Finding 5. 2-3 Adopted in Finding 9. Adopted in Finding 10. Rejected as irrelevant to the issue in this case. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 4, 6. 3-4 Adopted in Finding 2. Adopted in Finding 7. Adopted in Findings 5, 10. Adopted in Findings 9, 10. Adopted in Finding 9. Adopted in Finding 5. Adopted in Finding 8. Adopted in Findings 5, 9, 10. Adopted in Findings 9, 10. The Intervenor did not file Proposed Findings of Fact. Copy furnished: Colleen Donahue, Esquire District 10 Legal Office 201 West Broward Boulevard Room 513 Ft. Lauderdale, FL 33301-1885 Jack LaMarr, Esquire 1777 South Andrews Avenue Suite 203 Ft. Lauderdale, FL 33316 Alan Spector, Administrator Unity Staffing Services, Inc. One Oakwood Boulevard Suite 210 Hollywood, FL 33020 R. Sam Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, Acting General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, FL 32399-0700
