15-001932CON Millennium Ii, Llc vs. Colony Snf Operations, Llc Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, November 10, 2015.

STATE OF FLORIDA

AGENCY FOR HEALTH CARE n

ADMINISTRATION

COLONY SNF OPERATIONS, LLC,

2Q16 F~ C - I': 22

Petitioner,

DOAH NO. 15- 1927CON

V. AHCA NO. 2015002606

CON NO. 10261

MILLENNIUM II, LLC, AND RENDITION NO.: AHCA- j ~ 009 4 S- OLC

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Respondents.

MILLENNIUM II, LLC,

Petitioner,

DOAH NO. 15- 1932CON

V. AHCA NO. 2015003342

CON NO. 10262

COLONY SNF OPERATIONS, LLC,

Respondent.

FINAL ORDER

THIS CAUSE is before the State of

Florida, Agency for Health Care Administration

the Agency") concerning the preliminary denial of

Certificate of Need (" CON") 10261 filed

by

Colony SNF Operations, LLC (" Colony"), to establish a new

60- bed community nursing home

and the preliminary approval of CON 10262

filed by Millennium II, LLC (" to

Millennium"),

establish a new 50- bed community

nursing home, with respect to the fixed need pool for Sub-

District 3- 6.

1. The Agency

comparatively reviewed CON applications for other beds and

programs batching cycle with an application due date of

November 19, 2014, for the fixed need

pool for Sub- District 3- 6. For the case at hand, the

reviews included in relevant part:

10261 Colony SNF Operations, LLC

10262 Millennium II, LLC 60 Beds Denied

50 Beds Approved

2. On February 23, 2015, the

Agency published notice in the Florida Administrative

Register of its decisions regarding the denial

preliminary of CON 10261 and the preliminary

approval of CON 10262.

3. On March 16, 2015, filed

Colony SNF, a Petition for Formal Hearing

challenging

the denial of its CON 10261 as well as the

approval of CON 10262 to Millennium.

4. On March 26, 2015, Millennium

filed a Petition Challenging Co- Batched

Applicant supporting the Agency' s decision

denying Colony' s application.

5. The Agency referred the Petitions to

the Division of Administrative and

Hearings

an Administrative Law Judge (" was

ALJ") assigned.

6. The parties subsequently entered into the

attached settlement agreement agreeing

to the approval of CON 10262 for 50 beds and

the approval of CON 10261 for only 59 beds.

It is therefore ORDERED:

1 • The parties shall comply with the

terms of the settlement agreement which are

incorporated by reference into this Final Order.

2. Millennium' s CON 10262 is to

approved establish a 50- bed community

nursing

home in Sub district 3- 6 to be located to

adjacent The Residence at Timber Pines located at 3140

Forest Road, Spring Hill, Florida 34606.

3. Colony' s CON 10261 is for

approved only 59 beds.

ORDERED in Tallahassee, Florida, on this

day of 2016.

Elizabeth Dud Secretary

Agency For Heal Care Administration

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected this

instituted by Final Order is entitled to judicial review, which shall

by filing the original Notice of Appeal with the be

along with the filing fee prescribed law Agency Clerk of AHCA, and a copy

district where the by with the District Court of Appeal in the

Agency maintains its headquarters or where a appellate

proceedings shall be conducted in accordance with party resides. Review of

Appeal must be filed the Florida appellate rules. The Notice of

within 30 days of the rendition of the order to be

reviewed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing Final Order has

been furnished by the method to

designated the persons named below on this S "-

day of

2016.

Richard J. Shoop, Agency

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop # 3

Tallahassee, Florida 32308

Telephone: ( 850) 412- 3630

James H. Peterson, III

Administrative Law Judge

Division of Administrative Hearings

Electronic Filing)

Stephen C. Emmanuel

Ausley & McMullen

123 South Calhoun Street

Post Office Box 391

Tallahassee, FL 32302

Emmanuel@ausley. com

jmcvaney@ausley. com

Electronic Mail)

Seann M. Frazier, Esquire

Parker, Hudson, Rainer and Dobbs, LLP

215 South Monroe Street, Suite 750

Tallahassee, FL 32301

sfrazier@phrd. com

twd@phrd. com

Electronic Mail)

Jonathan L. Rue, Esquire

Parker, Hudson, Rainer and Dobbs, LLP

Suite 1500, 285 Peachtree Center Avenue

Atlanta, Georgia 30303

jrne@phrd. com

bmurphy@phrd. com

Richard Joseph Saliba, Assistant General Counsel

Kevin Michael Marker, Assistant General Counsel

Office of the General Counsel

Agency for Health Care Administration

Electronic Mail)

Janice K. Mills, Government Analyst II

Facilities Intake Unit

Agency for Health Care Administration

Electronic Mail)

Marisol M. Fitch, Unit Manager

Certificate of Need Unit

Agency for Health Care Administration

Electronic Mail)

Bernard Hudson, Unit Manager

Long Term Care Unit

Agency for Health Care Administration

Electronic Mail)

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLONY SNF OPERATIONS, LLC,

Petitioner,

vs.

DOAH Case No. 15- 1927

MILLENNIUM II, LLC AND AGENCY AHCA Case No, 2015002606

FOR HEALTH CARE ADMINISTRATION, CON Application No. 10261

Respondents.

MILLENNIUM 11, LLC,

Petitioner,

VS.

DOAH Case No. 15- 1932

COLONY SNF OPERATIONS, LLC, AHCA Case No. 2015003342

CON Application No. 10262

Respondent.

t

SETTLEMENT AGREEMENT

This Settlement Agreement (" Settlement

Agreement") by and between the State of

Florida, Agency for Health Care Administration (" AHCA"), SNF

Colony Operations, LLC

Colony"), and Millennium II, LLC (" Millennium").

WHEREAS, in Volume 40, No. 193 of the Florida Administrative Register dated October

3, 2014, a fixed need pool of 66 beds was published for Subdistrict 3- 6

for the July 2017

planning horizon; and

WHEREAS, in Volume 20, No. 193 of the Florida Administrative

Registry dated

October 3, 2014, a fixed need pool of 65 beds was for

published Subdistrict 3- 5 for the July 2017

planning horizon; and

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WHEREAS, Millennium filed CON application No. 10262 for a 50- bed

skilled nursing

home to be located in Subdistrict 3- 6 to be located

adjacent to The Residence at Timber Pines

located at 3140 Forest Road, Spring Hill, Florida

34606; and

WHEREAS, Colony filed CON application No. 10261 for a 60- bed

skilled nursing

facility to also be located in Subdistrict 3- 6, near the entrance of

Wesleyan Village, a deed-

restricted senior community located in Brooksville, Florida

34601; and

WHEREAS, Colony' s application proposed that some of the bed need in

Subdistrict 3- 5

be aggregated with the bed need in Subdistrict

3- 6 pursuant to section 408. 6), 034( Florida

Statutes; and

WHEREAS, AHCA published notice in Volume 41, No. 26 of the Florida

Administrative

Register of its decisions to preliminarily approve Millennium' s

application and to preliminarily

deny Colony' s application; and

WHEREAS, Colony timely filed a Petition for Formal

Administrative Hearing

challenging the Agency' s preliminary denial of Colony' s application and the

preliminary

approval of Millennium' s application; and

WHEREAS, Millennium filed a Cross Petition in support of AHCA' s

preliminary denial

of Colony' s application; and

WHEREAS, AHCA received only one CON application for Subdistrict to

3- 5, wit an

application by Surrey Place of Lecanto, LLC for 22 beds which has received

final approval,

leaving 43 beds available for award; and

WHEREAS, AHCA has further reviewed Colony' s application and has determined

that it

satisfies the applicable statutory and rule criteria and should be

approved; and

Page 2 of 7

WHEREAS, the parties to this Settlement Agreement seek to resolve the

pending cases

without the need for further litigation, and have determined

that it is in the best interests of sound

health planning and health care delivery to resolve their

differences in a manner consistent with

the goals and objectives of the Florida CON law.

WHEREAS, the parties have agreed that a fair, efficient, and cost effective

resolution of

this dispute would avoid the uncertainty of as

litigation well as the expenditure of substantial

sums of funds on behalf of all parties in order to

fully litigate the dispute; and

WHEREAS, the parties stipulate to the adequacy of considerations

exchanged; and

WHEREAS, the parties have negotiated and agreed that the best interest of all

the parties

will be served by a settlement of this and

proceeding;

NOW THEREFORE, in consideration of the mutual

promises and covenants set forth

herein, each party individually stipulates and agrees as follows:

1. The above recitals are true and correct and are

incorporated into this Agreement.

2. The " whereas" clauses set forth above are

binding findings of the parties.

3. Colony and Millennium each agree to withdraw

their opposition to the other

party' s CON application.

4. AHCA agrees to approve Millenium' s CON

application No. 10262 for 50 beds.

5. AHCA agrees to approve Colony' s CON

application No. 10261 for 59 beds.

6. Upon full execution of this Agreement, the

Agency will enter a final order

approving Millennium' s CON application no. 10262 to establish a 50 bed

community nursing

home and Colony' s CON application no. 10261 to establish a 59

bed community nursing home.

7. Upon full execution of this Settlement

Agreement and entry of a final order

wholly consistent with this agreement, each party: ( a) agrees to waive and all

any appeals and

Page 3 of 7

proceedings; and ( b) agrees to waive compliance with the form of the Final Order ( of

findings

fact and conclusions of law) to which it may be entitled but not limited

including, to, an informal

proceedings under Subsection 120. 2), 57( Florida Statutes, a formal proceeding under Subsection

120. 1), 57( Florida Statutes, appeals under Section 120. 68, Florida Statutes, and and

declaratory

all writs of relief in any court or quasi- court ( Division of

e. g. Administrative Hearings) of

competent jurisdiction.

8. Each party for itself and for its related or its

resulting organizations, successors or

transferees, attorneys, and executors or administrators, does hereby discharge the other

parties

and their respective employees, agents, representatives, and of and from all

attorneys claims,

demands, actions, causes of action, suits, damages, losses, and expenses, of any and nature

every

whatsoever, arising out of or in any way related to this matter and the Agency' s actions,

including, but not limited to, any claims that were or may be asserted in any federal or state court

or administrative forum by or on behalf of such party or of its related facilities.

any

9. Within ten ( 10) days of execution of this Settlement all

Agreement by parties,

Colony will pay Millennium $ 15, 00 000. for its attorney' s fees incurred in this proceeding.

10. Except as provided in paragraph 9 above, each party shall bear its own costs

and

attorneys' fees.

11. If anyone breaches this Settlement Agreement, the in action

prevailing party any

brought to enforce its terms will be entitled to recover reasonable attorney' s fees and costs from

the non- prevailing party. The parties agree that any action to enforce the terms of this

Settlement

Agreement will be brought in the Circuit Court for the Second Judicial Circuit in Leon County,

Florida.

Page 4 of 7

12. This Settlement Agreement shall become effective on the date upon which it is

fully executed by all parties hereto.

13. This Settlement Agreement is binding upon all parties and those identified in the

above paragraph of this Agreement.

14. The undersigned have read and understand this Settlement Agreement and have

the authority to bind their respective principals to it.

15. This Settlement Agreement contains and incorporates the entire understandings

and agreements of the parties.

16. This Settlement Agreement supersedes any prior oral or written agreements

between the parties.

17. This Settlement Agreement may not be amended except in writing. Any

attempted assignment of this Agreement shall be void.

18. All parties agree that a facsimile signature suffices for an original signature

19. The parties each hereby represent and warrant that their undersigned

representative is authorized to execute this Settlement Agreement on behalf of the party, and to

bind the party to the terms and conditions herein.

MILLENNIUM II, LLC

j

Randall Benson, Treasurer Seann M. Frazier

Millennium 11, LLC Florida Bar No. 971200

Parker Hudson Rainer & Dobbs, LLP

215 S. Monroe St., Suite 750

Tallahassee, FL 32301

DATED: a a S,© J DATED:

Page 5 of 7

12. This Settlement Agreement shall become

effective on the date upon which it is

fully executed by all parties hereto.

13. This Settlement Agreement is

binding upon all parties and those identified in the

above paragraph of this Agreement.

14. The undersigned have read and understand

this Settlement Agreement and have

the authority to bind their respective to

principals it.

15. This Settlement Agreement contains and

incorporates the entire understandings

and agreements of the parties.

16. This Settlement Agreement

supersedes any prior oral or written agreements

between the parties.

17. This Settlement Agreement not be

may amended except in writing. Any

attempted assignment of this Agreement shall be void.

18. All parties agree that a facsimile

signature suffices for an original signature

19. The parties each hereby and

represent warrant that their undersigned

representative is authorized to execute this Settlement on

Agreement behalf of the party, and to

bind the party to the terms and conditions herein.

MILLENNIUM II, LLC

Randall Benson, Treasurer Se

Millennium LLC M. Frazier

II, Florida Bar No. 9712

Parker Hudson Rainer & Dobbs, LLP

215 S. Monroe St., Suite 750

Tallahassee, FL 32301

DATED: TP DATED:

2_ 7• ~ f ~

Page 5 of 7

Gary Ott, resi nt/ CEO

TLC en t u

Manage Flori9646 StephAan

Ausley McMullen

Post Office Box 391

Tallahassee, FL 32301

DATED: DATED:

Page 6 of 7

AGENCY FOR HEALTH CARE ADMINISTRATION

2727 Mahan Drive, MS # 3, Tallahassee, FL 32308

Elizabeth D ek, Secretary Stuart F. Williams, Esquire

Division of H alth Quality Assurance General Counsel

Florida Bar No. 670731

DATED: J' /- A DATED: a

Richard Jos ph Saliba, Esquire

Assistant General Counsel

Florida Bar No. 240389

DATED: ~ l ~ G

It 1scewocolon)- swlsettlemcm agreement 12 07 2015 docx

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