16-001696CON Pruitthealth-Alachua County, Llc And Alachua County Hrc, Llc vs. Agency For Health Care Administration
 Status: Closed
Recommended Order on Friday, September 16, 2016.


View Dockets  
Summary: On balance, Alachua HRC, LLC, best met the statutory review criteria, and its application for a certificate of need should be approved.

1RULINGS ON EXCEPTIONS

4The Agency filed exceptions to the Recommended Order, and Alachua County HRC,

16LLC filed a response to the Agency's exceptions. 1

25In determining how to rule upon the Agency's exceptions and whether to adopt the ALJ's

40Recommended Order in whole or in part, the Agency must follow section 120.57(1)(!), Florida

54Statutes, which provides in pertinent part:

60The agency may adopt the recommended order as the final order of

72the agency. The agency in its final order may reject or modify the

85conclusions of law over which it has substantive jurisdiction and

95interpretation of administrative rules over which it has substantive

104jurisdiction. When rejecting or modifying such conclusion of law

113or interpretation of administrative rule, the agency must state with

123particularity its reasons for rejecting or modifying such conclusion

132of law or interpretation of administrative rule and must make a

143finding that its substituted conclusion of law or interpretation of

153administrative rule is as or more reasonable than that which was

164rejected or modified. Rejection or modification of conclusions of

173law may not form the basis for rejection or modification of

184findings of fact. The agency may not reject or modify the findings

196of fact unless the agency first determines from a review of the

208entire record, and states with particularity in the order, that the

219findings of fact were not based upon competent substantial

228evidence or that the proceedings on which the findings were based

239did not comply with essential requirements of law ....

248§ 120.57(1)(1), Fla. Stat. Additionally, "[t]he final order shall include an explicit ruling on each

263exception, but an agency need not rule an on exception that does not clearly identify the disputed

280portion of the recommended order by page number or paragraph, that does not identify the legal

296basis for the exception, or that does not include appropriate and specific citations to the record."

3121 In its Response to AHCA's Exception, Alachua HRC mentions Pruitthealth filed a response to the Agency's

329exception and a motion for remand on October 7, 2016. However, the Agency Clerk's Office has no record of

348Pruitthealth filing any documents on that date, and Pruitthealth, to date, has not filed any other documents with the

367Agency Clerk. It appears from the DOAH website that counsel for Pruitthealth filed its response to the Agency's

385exception and motion for remand with DOAH instead of the Agency Clerk. Rule 28-106.217, Florida

400Administrative Code, parties to file exceptions, and the responses thereto, with the Agency. Thus, because

415Pruitthealth 's response to the Agency's exception and motion for remand are not properly before the Agency, the

433Agency wiii not consider them.

438§ 120.57(1)(k), Fla. Stat. In accordance with these legal standards, the Agency makes the

452following rulings on the Agency's exceptions:

458In its sole exception to the Recommended Order, the Agency takes exception to

471Paragraph 79 of the Recommended Order, arguing the findings of fact in the paragraph are

486neither supported by statute or rule nor the competent, substantial evidence of this matter.

500Paragraph 79 of the Recommended Order is actually a conclusion of law since it involves the

516ALl's interpretation of law. In that regard, the ALl's interpretation of section 408.040(1),

529Florida Statutes, and rule 59C-1.0 13(1 ), Florida Administrative Code, is not correct because both

544of them still allow the Agency to condition the approval of a CON on statements of intent by the

563applicant, including the provision of a certain percentage of Medicaid care. However, section

576408.040( 1 )(b), Florida Statutes, was changed by the Legislature in 2012 to prohibit the Agency

592from sanctioning a provider for failing to abide by a CON condition of providing a certain

608percentage of Medicaid care. See§ 408.040(1)(b), Fla. Stat. ("Effective July 1, 2012, the agency

623may not impose sanctions related to patient day utilization by patients eligible for care under

638Title XIX of the Social Security Act for nursing homes."). The testimony of the Agency's

654representative in this matter affirms that the Agency interprets both the statute and rule as

669allowing the Agency to still accept such CON conditions and will sometimes base its decision to

685grant or deny a CON application in part on such a condition. See Transcript, Volume X, Pages

7021295-1296. Thus, the Agency finds that it has substantive jurisdiction over the conclusions of

716law in Paragraph 79 of the Recommended Order because they involve the interpretation of laws

731and rules governing the Agency's CON program, and finds that it can substitute conclusions of

746law that are as or more reasonable than those of the ALJ. Therefore, the Agency grants its own

764exception and modifies Paragraph 79 of the Recommended Order as follows:

77579. AHCA no longer accepts will still conditions-en the award of a

787CON fefbased on an applicant's intent to providesion of a

797specified percentage of Medicaid care. However, .Y!!nlike days of

806yore, AHCA can no longer discipline applicants are not granted

816any special consideration on the basis of for failing to meet their

828Medicaid projections. See§ 408.040(1)(b), Fla. Stat.

834FINDINGS OF FACT

837The Agency hereby adopts the findings of fact set forth in the Recommended Order.

851CONCLUSIONS OF LAW

854The Agency hereby adopts the conclusions of law set forth in the Recommended Order,

868except where noted supra.

872ORDER

873Based upon the foregoing, the Agency hereby approves Alachua HRC, LLC's CON

885Application No. 10397, and denies Pruitthealth-Alachua County, LLC's CON Application No.

89610400. The parties shall govern themselves accordingly.

,903..,J'{/, 11 _L I

908DONE and ORDERED this _-4>_day of VCTOD

915NOTICE OF RIGHT TO JUDICIAL REVIEW

921A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

934A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A

947NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY

960ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT

972COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY

982MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW

991PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA

1000APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF

1013RENDITION OF THE ORDER TO BE REVIEWED.

1020CERTIFICATE OF SERVICE

1023I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has

1038been furnished by the method indicated to the persons named below on this

1051_____ , 2016.

1053RICHARD J. SHOOP, Agency Clerk

1058Agency for Health Care Administration

10632727 Mahan Drive, MS #3

1068Tallahassee, Florida 32308-5403

1071(850) 412-3630

1073COPIES FURNISHED TO:

1076Honorable R. Bruce McKibben

1080Administrative Law Judge

1083Division of Administrative Hearings

1087(via electronic filing)

1090Jay Adams, Esquire

1093Broad and Cassel

1096215 South Monroe Street, Suite 400

1102Tallahassee, Florida 32301

1105(via email to jadams@broadandcassel.com)

1109Frank P. Rainer, Esquire

1113Broad and Cassel

1116215 South Monroe Street, Suite 400

1122Tallahassee, Florida 32301

1125(via email to frainer@broadandcassel.com)

1129Seann M. Frazier, Esquire

1133Parker, Hudson, Rainer and Dobbs, LLP

1139215 South Monroe Street, Suite 750

1145Tallahassee, Florida 32301

1148(via email to sfrazier@phrd.com)

1152Jonathan L. Rue, Esquire

1156Parker, Hudson, Rainer and Dobbs, LLC

1162303 Peachtree Street Northeast, Suite 3600

1168Atlanta, Georgia 30308

1171(via email to jrue@phrd.com)

1175Kevin M. Marker, Esquire

1179Richard J. Saliba, Esquire

1183Assistant General Counsels

1186(via email to Kevin.Marker@ahca.myflorida.com and

1191Richard.Saliba@ahca.myflorida.com)

1192Marisol Fitch, Manager

1195Certificate ofNeed Unit

1198(via email to Marisol.Fitch@ahca.myflorida.com)

1202Jan Mills

1204Facilities Intake Unit

1207(via email to Janice.Mills@ahca.myflorida.com)

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/02/2016
Proceedings: Agencys Exceptions to Recommended Order filed.
PDF:
Date: 11/02/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 10/26/2016
Proceedings: Agency Final Order
PDF:
Date: 10/07/2016
Proceedings: Response to AHCA's Exceptions and Motion to Remand filed.
PDF:
Date: 09/16/2016
Proceedings: Recommended Order
PDF:
Date: 09/16/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/16/2016
Proceedings: Recommended Order (hearing held June 8-10 and 13-15, 2016). CASE CLOSED.
PDF:
Date: 08/18/2016
Proceedings: Pruitthealth - Alachua County's Proposed Recommended Order filed.
PDF:
Date: 08/18/2016
Proceedings: Alachua County HRC, LLC's Proposed Recommended Order filed.
PDF:
Date: 08/18/2016
Proceedings: Joint Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 08/18/2016
Proceedings: Joint Motion for Leave to File Proposed Recommended Orders of Up to Fifty Pages filed.
PDF:
Date: 08/12/2016
Proceedings: Order Granting Extension of Time.
PDF:
Date: 08/11/2016
Proceedings: PruittHealth- Alachua County, LLC's Unopposed Motion for Extension of Time to File Proposed Recommended Order filed.
Date: 07/25/2016
Proceedings: Transcript of Proceedings Volumes 1-10 (not available for viewing) filed.
Date: 06/08/2016
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 06/07/2016
Proceedings: Prehearing Stipulation filed.
PDF:
Date: 06/06/2016
Proceedings: Amended PruittHealth-Alachua County, LLCs Notice of Taking Telephonic Deposition filed.
PDF:
Date: 06/06/2016
Proceedings: Amended Order Re-scheduling Hearing (hearing set for June 8 through 10 and 13 through 15, 2016; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 06/06/2016
Proceedings: PruittHealth-Alachua County, LLC's Notice of Taking Telephonic Deposition (of Geoff Fraser) filed.
PDF:
Date: 06/03/2016
Proceedings: Order Re-scheduling Hearing (hearing set for June 8 through 10 and 13 through 15, 2016; 9:00 a.m.; Tallahassee, FL).
Date: 06/02/2016
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 06/01/2016
Proceedings: Notice of Taking Telephonic Rebuttal Deposition Duces Tecum (of Tracy Adams) filed.
PDF:
Date: 06/01/2016
Proceedings: Notice of Taking Telephonic Rebuttal Deposition Duces Tecum (of Dan Wyman) filed.
PDF:
Date: 06/01/2016
Proceedings: Notice of Taking Telephonic Rebuttal Deposition Duces Tecum (of Aneel Gill) filed.
PDF:
Date: 06/01/2016
Proceedings: Notice of Taking Telephonic Rebuttal Deposition Duces Tecum (of Patti Greenberg) filed.
PDF:
Date: 06/01/2016
Proceedings: Notice of Taking Telephonic Rebuttal Deposition Duces Tecum (of Steve Ward) filed.
PDF:
Date: 06/01/2016
Proceedings: Amended Notice of Taking Deposition Duces Tecum (of Kevin Bessolo) filed.
PDF:
Date: 06/01/2016
Proceedings: Notice of Telephonic Pre-hearing Conference (set for June 1, 2016; 11:00 a.m.).
PDF:
Date: 05/31/2016
Proceedings: Alachua HRC, LLC's Response to PruittHealth-Alachua County, LLC's First Request for Production filed.
PDF:
Date: 05/24/2016
Proceedings: Notice of Taking Deposition Duces Tecum (of Kevin Bessolo) filed.
PDF:
Date: 05/24/2016
Proceedings: Notice of Taking Deposition Duces Tecum (of Marisol Fitch) filed.
PDF:
Date: 05/20/2016
Proceedings: Amended Notice of Taking Deposition Duces Tecum (of Tracy Adams) filed.
PDF:
Date: 05/20/2016
Proceedings: PruittHealth-Alachua County, LLC's Master Notice of Taking Depositions and Notice of Corporate Representative Deposition filed.
PDF:
Date: 05/19/2016
Proceedings: Alachua County HRC, LLC's Amended Final Witness List filed.
PDF:
Date: 05/19/2016
Proceedings: PruittHealth-Alachua County, LLC's Final Witness List filed.
PDF:
Date: 05/19/2016
Proceedings: Notice of Appearance (Frank Rainer) filed.
PDF:
Date: 05/19/2016
Proceedings: Alachua County HRC, LLC's Final Witness List filed.
PDF:
Date: 05/18/2016
Proceedings: The Agency for Health Care Administration's Preliminary and Final Witness List filed.
PDF:
Date: 05/17/2016
Proceedings: Notice of Service filed.
PDF:
Date: 05/17/2016
Proceedings: Notice of Filing (Amended Order of Prehearing Instructions) filed.
PDF:
Date: 05/16/2016
Proceedings: Notice of Taking Deposition Duces Tecum (of Steven Jones, Dr. Dan Wyman, and Tracy Adams) filed.
PDF:
Date: 05/16/2016
Proceedings: Notice of Taking Deposition Duces Tecum (of Steve Ward and Jodi Felix) filed.
PDF:
Date: 05/16/2016
Proceedings: Notice of Taking Deposition Duces Tecum (of Patty Greenberg, Aneel Gill, and Ali Momin) filed.
PDF:
Date: 05/03/2016
Proceedings: Notice of Appearance (Kevin Marker) filed.
PDF:
Date: 05/03/2016
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for June 6 through 10, 2016; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 04/29/2016
Proceedings: PruittHealth's First Request for Production of Documents to Alachua County HRC filed.
Date: 04/29/2016
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 04/29/2016
Proceedings: Notice of Telephonic Pre-hearing Conference (set for April 29, 2016; 10:00 a.m.).
PDF:
Date: 04/28/2016
Proceedings: Notice of Service of Response to Request for Production of Documents filed.
PDF:
Date: 04/28/2016
Proceedings: Alachua County HRC, LLC's Response to Request to Reschedule Hearing and Motion for Scheduling Conference filed.
PDF:
Date: 04/28/2016
Proceedings: PruittHealth's Motion to Reschedule Final Hearing filed.
PDF:
Date: 04/26/2016
Proceedings: Notice of Service of Responses to Interrogatories filed.
PDF:
Date: 04/20/2016
Proceedings: Order Requesting Proposed Order of Pre-hearing Instructions.
PDF:
Date: 04/20/2016
Proceedings: Notice of Hearing (hearing set for May 23 through 27, 2016; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 03/29/2016
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 03/25/2016
Proceedings: Initial Order.
PDF:
Date: 03/24/2016
Proceedings: Alachua County HRC, LLC's Cross-Petition Challenging Co-batched Applicant filed.
PDF:
Date: 03/24/2016
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 03/24/2016
Proceedings: Decisions on Batched Applications filed.
PDF:
Date: 03/24/2016
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
R. BRUCE MCKIBBEN
Date Filed:
03/24/2016
Date Assignment:
03/25/2016
Last Docket Entry:
11/02/2016
Location:
Tallahassee, Florida
District:
Northern
Agency:
Other
Suffix:
CON
 

Counsels

Related Florida Statute(s) (5):

Related Florida Rule(s) (1):