18-000075CON Florida Hospital Waterman, Inc., D/B/A Florida Hospital Waterman vs. Munroe Hma Hospital, Llc And Marion Community Hospital, Inc.
 Status: Closed
Recommended Order on Wednesday, February 6, 2019.


View Dockets  
Summary: Waterman Hosp., Lake Co., better for "needed" 12-bed CMR unit. Not normal circumstances proved need for two 12-bed CMR units, one in Lake Co and one in Marion Co. Not normal argument was not an application amendment.

1In determining how to rule upon Marion Community and the Agency's exceptions and

14whether to adopt the ALI's Recommended Order in whole or in part, the Agency must follow

30Section 120.57(1)(!), Florida Statutes, which provides in pertinent part:

39The agency may adopt the recommended order as the final order of the agency.

53The agency in its final order may reject or modify the conclusions of law over

68which it has substantive jurisdiction and interpretation of administrative rules

78over which it has substantive jurisdiction. When rejecting or modifying such

89conclusion of law or interpretation of administrative rule, the agency must state

101with particularity its reasons for rejecting or modifying such conclusion of law or

114interpretation of administrative rule and must make a finding that its substituted

126conclusion of law or interpretation of administrative rule is as or more reasonable

139than that which was rejected or modified. Rejection or modification of

150conclusions of law may not form the basis for rejection or modification of

163findings of fact. The agency may not reject or modify the findings of fact unless

178the agency first determines from a review of the entire record, and states with

192particularity in the order, that the findings of fact were not based upon competent

206substantial evidence or that the proceedings on which the findings were based did

219not comply with essential requirements oflaw ....

226§ 120.57(1)(!), Fla. Stat. Additionally, "[t)he final order shall include an explicit ruling on each

241exception, but an agency need not rule on an exception that does not clearly identify the disputed

258portion of the recommended order by page number or paragraph, that does not identify the legal

274basis for the exception, or that does not include appropriate and specific citations to the record."

290§ 120.57(1 )(k), Fla. Stat. In accordance with these legal standards, the Agency makes the

305following rulings on Marion Community and the Agency's exceptions:

314Marion Community's Exceptions

317In Exception 1, Marion Community takes exception to the last sentence of Paragraph 42

331of the Recommended Order, arguing the finding contained therein is not based on competent,

345substantial evidence. The findings of fact in Paragraph 42 of the Recommended Order are all

360based on competent, substantial record evidence. See Transcript, Volume 3, Pages 348-349;

372Transcript, Volume 4, Pages 520-523, 548; Transcript, Volume 5, Pages 679-686; AHCA

384Exhibit I; Florida Hospital Waterman Exhibit I. Thus, the Agency is not at liberty to reject or

401modify them. See § 120.57(1)(/), Fla. Stat.; Heifetz v. Department of Business Regulation, 475

415So. 2d 1277, 1281 (Fla. 1st DCA 1985) (holding that an agency "may not reject the hearing

432officer's finding [of fact] unless there is no competent, substantial evidence from which the

446finding could reasonably be inferred"). Therefore, the Agency denies Exception I.

458In Exception 2, Marion Community takes exception to Paragraph 53 of the

470Recommended Order, arguing the ALJ did not balance this criteria in the Recommended Order.

484However, Marion Community's argument does not constitute a valid basis for the Agency to

498reject or modify the findings of fact in Paragraph 53 of the Recommended Order. Since the

514findings of fact in Paragraph 53 of the Recommended Order are based on competent, substantial

529record evidence (See Transcript, Volume 5, Pages 601-604), the Agency denies Exception 2.

542See§ 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281.

552In Exception 3, Marion Community takes exception to Paragraphs 112-115 of the

564Recommended Order, arguing the paragraphs are unnecessary and that the ALJ did not conduct

578an appropriate balancing of the relative merits of the applications based upon all applicable

592criteria. The Agency disagrees. The Agency finds that the ALI's conclusions of law in these

607paragraphs are reasonable. 1 Therefore, the Agency denies Exception 3.

617Agency's Exceptions

619In its First Exception, the Agency takes exception to Paragraphs 51, 52, 113, 124 and 125

635ofthe Recommended Order, arguing the ALI's interpretation of rules 59C-1.008 and 59C-1.039,

647Florida Administrative Code, are erroneous. Specifically, the Agency argues the ALJ erred by

660approving more beds than the Fixed Need Pool concluded were needed. The Agency's argument

6741 The Agency further addresses the conclusions of law in Paragraph 113 of the Recommended Order in its ruling on

694the Agency's First Exception infra.

699is in direct opposition to the holding in Balsam v. Department of Health and Rehabilitative

714Services, 486 So. 2d 1341, (Fla. 1st DCA 1986), where the court held:

727The bed-need formula is part of a rule having general statewide

738application and should be viewed merely as the beginning point for

749determining need. The formula is so broad in scope that it cannot

761be treated as taking into consideration all the peculiar conditions

771found in a particular area sought to be served by the applicant.

783While the bed-need formula shifts the burden from HRS to the

794applicant to show a need where none is shown by calculations

805under the formula, HRS should not simply stand on these

815calculations and abandon its responsibility to consider and weigh

824the other criteria.

827It would be impermissible for the Agency to conclusively presume that it can only approve the

843exact number of beds detennined by the fixed need pool without weighing and balancing all the

859relevant statutory and rule criteria. See, generally, Department of Health & Rehabilitative

871Services v. Johnson and Johnson, 447 So. 2d 361 (Fla. 1st DCA 1984). Indeed, as the ALJ

888concluded, the plain language of the rules indicates that the Agency need not adhere to the fixed

905need pool calculation results when detennining whether to grant or deny a CON application. See

920rules 59C-1.008(2)(d)3 and 59C-1.039(3)(d), Florida Administrative Code. Furthennore, as the

930ALJ pointed out in Paragraph 126 of the Recommended Order, the Agency has, in the past,

946approved more CMR beds than the fixed need pool calculations have shown were needed. The

961Agency did not offer any rational explanation of why it should not do the same in this matter.

979Thus, the Agency finds the conclusions of law reached by the ALJ in Paragraphs 51, 52, 113,

996124 and 125 of the Recommended Order are reasonable, and that it cannot substitute conclusions

1011oflaw that are as or more reasonable. Therefore, the Agency denies its First Exception.

1025In its Second Exception, the Agency takes exception to Paragraph 116 of the

1038Recommended Order, arguing the conclusions of law in that paragraph are erroneous. Paragraph

1051116 of the Recommended Order is nothing more than a mere resuscitation of the Agency's legal

1067arguments made in its August 28, 2018 Memorandum of Law that was filed with DOAH in this

1084matter. Therefore, the Agency denies its Second Exception.

1092In its Third Exception, the Agency takes exception to Paragraphs 117-127 of the

1105Recommended Order, arguing the applicants' not nonnal circumstances arguments constituted

1115impermissible amendments to their respective applications. First, the Agency's argument

1125overlooks the AU's findings of fact in Paragraphs 56-66 of the Recommended Order, where the

1140ALJ expressly found both applicants raised "not normal" circumstances in their respective

1152applications and cited to the competent, substantial record evidence that supported these

1164findings. Second, the Agency is essentially re-arguing its First Exception, by stating again that it

1179cannot approve more beds than what the fixed need pool calculations arrived at. As the Agency

1195explained in the ruling on the Agency's First Exception supra (which is hereby incorporated by

1210reference), the Agency's argument is erroneous. Therefore, for all the reasons stated above, the

1224Agency denies its Third Exception.

1229In its Fourth Exception, the Agency takes exception to Paragraphs 123-126 of the

1242Recommended Order, arguing they set forth an erroneous legal interpretation of "not nonnal"

1255circumstances. While the Agency is correct that there is a difference between "special

1268circumstances" and "not normal" circumstances for purposes of CON 1aw 2 , the ALJ does not

1283make any conclusions of law confusing the two terms in these paragraphs. In addition, the

1298Agency finds that the ALJ's conclusions of law in these paragraphs are reasonable and should

1313not be rejected or modified. Therefore, the Agency denies its Fourth Exception.

13252 The Hospice of the Florida Suncoast, Inc., et. a! v. Agency for Health Care Admin., 2008 WL 2259050 at

1345*7 ("Under the hospice need methodology, "special circumstances" are distinguishable from "not normal"

1359circumstances, in part, because the three "special circumstances'' are comprised of three delineated criteria rather

1374than generally referencing what has been characterized as '"free form" need arguments. Also, "not normal''

1390FINDINGS OF FACT

1393The Agency hereby adopts the findings of fact set forth in the Recommended Order.

1407CONCLUSIONS OF LAW

1410The Agency hereby adopts the conclusions of law set forth in the Recommended Order.

1424ORDER

1425Based upon the foregoing, both Marion Community's CON Application No. 10499 and

1437Waterman's CON Application No. 10496 are hereby granted. The parties shall govern

1449themselves accordingly.

1451DONE and ORDERED this _lLday of , 2019, in Tallahassee, Florida.

1461AGENCY FOR HEALTH CARE ADMINISTRATION

1466NOTICE OF RIGHT TO JUDICIAL REVIEW

1472A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

1485A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A

1498NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY

1511ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT

1523COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY

1533MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW

1542PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA

1551APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF

1564RENDITION OF THE ORDER TO BE REVIEWED.

1571circumstances may be presented when the Agency's numeric fixed need pool calculation produces a positive

1586numeric need.

1588CERTIFICATE OF SERVICE

1591I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has

1606been furnished by the method indicated to the persons named below on this

1619G.-:..___:__:,- c=-=/.'--,. __ , 2019.

1625cy Clerk

1627Agency for Health Care Administration

16322727 Mahan Drive, MS #3

1637Tallahassee, Florida 32308-5403

1640(850) 412-3630

1642COPIES FURNISHED TO:

1645Honorable John D. C. Newton II

1651Administrative Law Judge

1654Division of Administrative Hearings

1658The DeSoto Building

16611230 Apalachee Parkway

1664Tallahassee, Florida 32399-3060

1667(via electronic filing)

1670Stephen A. Ecenia, Esquire

1674Craig D. Miller, Esquire

1678J. Stephen Menton, Esquire

1682David M. Maloney

1685Rutledge Ecenia, P .A.

1689119 South Monroe Street, Suite 202

1695Tallahassee, Florida 32301

1698(via electronic mail to Steve@rutledge-ecenia.com,

1703CMiller@rutledge-ecenia.com, SMenton@rutledge-ecenia.com,

1705and DMaloney@rutledge-ecenia.com)

1707Richard J. Saliba, Esquire

1711Lindsey L. Miller-Hailey, Esquire

1715Kevin M. Marker, Esquire

1719Assistant General Counsels

1722(via electronic mail to Richard.Saliba@ahca.myflorida.com,

1727Lindsey.Miller-Hailey@ahca.myflorida.com, and Kevin.Marker@ahca.myflorida.com)

1730Stephen K. Boone, Esquire

1734Boone, Boone, Boone, and Koda, P .A.

1741I 00 I A venida Del Circo

1748Post Office Box 1596

1752Venice, Florida 34284

1755(via electronic mail to sboone@boone-law.com)

1760Mia L. McKown, Esquire

1764Tiffany A. Roddenberry, Esquire

1768Holland & Knight, LLP

1772315 South Calhoun Street, Suite 600

1778Tallahassee, Florida 32301

1781(via electronic mail to mia.mckown@hklaw.com, and

1787tiffany.roddenberry@hklaw.com)

1788Marisol Fitch

1790Certificate ofNeed Unit

1793(via electronic mail to Marisol.Fitch@ahca.myflorida.com)

1798Jan Mills

1800Facilities Intake Unit

1803(via electronic mail to Janice.Mills@ahca.myflorida.com)

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/12/2019
Proceedings: Marion Community Hospital, Inc. d/b/a West Marion Community Hospital and Ocala Regional Medical Center's Exceptions to the Recommended Order (filed in Case No. 18-000075CON).
PDF:
Date: 03/12/2019
Proceedings: Agency for Health Care Administration's Exceptions to the Recommended Order (filed in Case No. 18-000075CON).
PDF:
Date: 03/12/2019
Proceedings: Agency Final Order filed.
PDF:
Date: 03/11/2019
Proceedings: Agency Final Order
PDF:
Date: 02/06/2019
Proceedings: Recommended Order
PDF:
Date: 02/06/2019
Proceedings: Recommended Order (hearing held June 18-22 and 25, 2018). CASE CLOSED.
PDF:
Date: 02/06/2019
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/29/2019
Proceedings: Marion Community Hospital, Inc.'s Composite Exhibit 12 filed.
PDF:
Date: 11/14/2018
Proceedings: Notice of Telephonic Status Conference (status conference set for November 27, 2018; 3:00 p.m.).
PDF:
Date: 08/28/2018
Proceedings: Florida Hospital Waterman, Inc.?s Memorandum of Law in Support of the Proposed Recommended Order filed.
PDF:
Date: 08/28/2018
Proceedings: Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 08/28/2018
Proceedings: Agency Memorandum of Law Submitted Pursuant to Section 28-106.307 Uniform Rules of Procedure Agency Notice of Adoption of Waterman's Proposed Recommended Order filed.
PDF:
Date: 08/28/2018
Proceedings: Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 08/27/2018
Proceedings: Marion Community Hospital, Inc. d/b/a West Marion Community Hospital and Ocala Regional Medical Center's Notice of Filing the Deposition Transcript of James Duke, M.D. filed.
PDF:
Date: 08/16/2018
Proceedings: Order Granting Extension of Time for PROs.
PDF:
Date: 08/16/2018
Proceedings: Order Granting Extension of Time for PROs.
PDF:
Date: 08/15/2018
Proceedings: Unopposed Motion to Extend the Deadline for Post-Hearing Submissions filed.
PDF:
Date: 07/18/2018
Proceedings: Marion Community Hospital, Inc. d/b/a West Marion Community Hospital's Report of Plan for Testimony of Cory Hewitt filed.
PDF:
Date: 07/09/2018
Proceedings: Notice of Filing Transcript.
PDF:
Date: 07/03/2018
Proceedings: Order Extending Time for Report on Post-hearing Testimony.
PDF:
Date: 07/03/2018
Proceedings: Order Granting Extension of Time for PROs.
PDF:
Date: 07/02/2018
Proceedings: Response to Order Advising ALJ of Testimony and Motion for Additional Time filed.
PDF:
Date: 06/29/2018
Proceedings: Unopposed Motion to Extend the Deadline for Post-hearing Submissions filed.
PDF:
Date: 06/25/2018
Proceedings: Post Hearing Order.
PDF:
Date: 06/15/2018
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 06/14/2018
Proceedings: Order Granting Extension of Time.
PDF:
Date: 06/13/2018
Proceedings: Motion for Extension of Time to File Joint Pre-hearing Stipulation filed.
PDF:
Date: 06/12/2018
Proceedings: Cross-Notice of Taking Depositions filed.
PDF:
Date: 06/12/2018
Proceedings: Notice of Taking Depositions and Amended Notice of Taking Deposition for Marisol Fitch filed.
PDF:
Date: 06/08/2018
Proceedings: Notice of Depositions filed.
PDF:
Date: 06/08/2018
Proceedings: Notice of Taking Depositions filed.
PDF:
Date: 06/04/2018
Proceedings: Notice of Telephonic Conference (conference set for June 4, 2018; 11:00 a.m.).
PDF:
Date: 06/04/2018
Proceedings: Order on Objection to Depositions and Extending Pre-hearing Stipulation Filing Date.
Date: 06/04/2018
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 06/04/2018
Proceedings: Agency for Health Care Administration's Objection to Untimely Notice of Depositions filed.
PDF:
Date: 06/01/2018
Proceedings: Notice of Deposition filed.
PDF:
Date: 05/16/2018
Proceedings: Amended Notice of Hearing (hearing set for June 18 through 22 and 25 through 27, 2018; 9:00 a.m.; Tallahassee, FL; amended as to Hearing Dates).
PDF:
Date: 05/10/2018
Proceedings: Response to Order Severing Case No. 18-0071, Closing File, Relinquishing Jurisdiction filed.
PDF:
Date: 05/03/2018
Proceedings: Order Severing Case No. 18-0071, Closing File, and Relinquishing Jurisdiction (filed in DOAH Case No. 18-0071).
PDF:
Date: 04/30/2018
Proceedings: Munroe Regional's Notice of Service of Answers and Objections to Florida Hospital Waterman's First Set of Interrogatories filed.
PDF:
Date: 04/30/2018
Proceedings: Munroe Regional's Responses to Florida Hospital Waterman's First Request for Production filed.
PDF:
Date: 04/25/2018
Proceedings: Order Denying Request for Leave to Reply of Marion Community Hospital, Inc., and Florida Hospital Waterman, Inc.
PDF:
Date: 04/24/2018
Proceedings: Munroe Regional's Notice of Additional Facts filed.
PDF:
Date: 04/24/2018
Proceedings: Stipulated Issues of Fact filed.
PDF:
Date: 04/24/2018
Proceedings: Florida Hospital Waterman, Inc.?s Responses to Second Request for Production of Documents by Munroe HMA Hospital, LLC filed.
PDF:
Date: 04/24/2018
Proceedings: Florida Hospital Waterman, Inc.?s Responses to First Request for Production of Documents by Munroe HMA Hospital, LLC filed.
PDF:
Date: 04/24/2018
Proceedings: Florida Hospital Waterman, Inc.?s Answers and Objections to Munroe Regional Medical Center?s First Set of Interrogatories filed.
PDF:
Date: 04/18/2018
Proceedings: Munroe Regional's Response in Opposition to West Marion, Ocala Regional, and Florida Hospital Waterman Inc.'s Request for Leave to Reply filed.
PDF:
Date: 04/17/2018
Proceedings: Notice of Telephonic Status Conference (status conference set for April 20, 2018; 2:30 p.m.).
PDF:
Date: 04/16/2018
Proceedings: West Marion Community Hospital and Ocala Regional Medical Center Final Witness List filed.
PDF:
Date: 04/16/2018
Proceedings: Florida Hospital Waterman, Inc.'s Final Witness List filed.
PDF:
Date: 04/16/2018
Proceedings: Munroe Regional Medical Center's Final Witness List filed.
PDF:
Date: 04/16/2018
Proceedings: Notice of Telephonic Status Conference (status conference set for April 20, 2018; 2:30 p.m.).
PDF:
Date: 04/12/2018
Proceedings: West Marion, Ocala Regional, and Florida Hospital Waterman's Request for Leave to Reply filed.
PDF:
Date: 04/12/2018
Proceedings: Notice of Appearance (David Maloney) filed.
PDF:
Date: 04/06/2018
Proceedings: Munroe Regional's Response in Opposition to Florida Hospital Waterman Inc's Motion to Dismiss filed.
PDF:
Date: 03/30/2018
Proceedings: Florida Hospital Waterman, Inc.'s Motion to Dismiss filed.
PDF:
Date: 03/05/2018
Proceedings: Florida Hospital Waterman, Inc.'s Preliminary Witness List filed.
PDF:
Date: 03/05/2018
Proceedings: Munroe Regional Medical Center's Preliminary Witness List filed.
PDF:
Date: 03/02/2018
Proceedings: West Marion Community Hospital's First Request for Production of Documents to Florida Hospital Waterman filed.
PDF:
Date: 03/02/2018
Proceedings: West Marion Community Hospital's First Request for Production of Documents to Munroe Regional Medical Center filed.
PDF:
Date: 02/26/2018
Proceedings: West Marion Community Hospital and Ocala Regional Medical Center Preliminary Witness List filed.
PDF:
Date: 02/21/2018
Proceedings: Florida Hospital Waterman's Notice of Service of It's First Set of Interrogatories to Munroe HMA Hospital, LLC filed.
PDF:
Date: 02/21/2018
Proceedings: Florida Hospital Waterman's Notice of Service of It's First Set of Interrogatories to Marion Community Hospital d/b/a West Marion Community Hospital filed.
PDF:
Date: 02/21/2018
Proceedings: Florida Hospital Waterman, Inc., d/b/a Florida Hospital Waterman's First Request for Production to Munroe HMA Hospital, LLC filed.
PDF:
Date: 02/21/2018
Proceedings: Florida Hospital Waterman, Inc., d/b/a Florida Hospital Waterman's First Request for Production to Marion Community Hospital , Inc. d/b/a West Marion Community Hospital filed.
PDF:
Date: 02/16/2018
Proceedings: Munroe Regional Medical Center's Notice of Serving First Interrogatories to West Marion Community Hospital filed.
PDF:
Date: 02/16/2018
Proceedings: Munroe Regional Medical Center's Notice of Serving First Interrogatories to Florida Hospital Waterman filed.
PDF:
Date: 02/16/2018
Proceedings: Munroe Regional Medical Center's Second Request for Production of Documents to West Marion Community Hospital filed.
PDF:
Date: 02/16/2018
Proceedings: Munroe Regional Medical Center's First Request for Production of Documents to West Marion Community Hospital filed.
PDF:
Date: 02/16/2018
Proceedings: Munroe Regional Medical Center's Second Request for Production of Documents to Florida Hospital Waterman filed.
PDF:
Date: 02/16/2018
Proceedings: Munroe Regional Medical Center's First Request for Production of Documents to Florida Hospital Waterman filed.
PDF:
Date: 02/06/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/29/2018
Proceedings: Joint Notice of Filing Proposed Order of Pre-hearing Instructions filed.
PDF:
Date: 01/25/2018
Proceedings: The Agency for Health Care Administration's Preliminary and Final Witness List filed.
PDF:
Date: 01/18/2018
Proceedings: Notice of Retaining Court Reporter filed.
PDF:
Date: 01/18/2018
Proceedings: Notice of Appearance (Tiffany Roddenberry; filed in Case No. 18-000075CON).
PDF:
Date: 01/18/2018
Proceedings: Notice of Appearance (Mia Mckown; filed in Case No. 18-000075CON).
PDF:
Date: 01/18/2018
Proceedings: Notice of Appearance (Sabrina Dieguez) filed.
PDF:
Date: 01/18/2018
Proceedings: Order Requesting Proposed Order of Pre-Hearing Instructions.
PDF:
Date: 01/18/2018
Proceedings: Notice of Hearing (hearing set for June 18 through 22 and 25 through 29, 2018; 8:30 a.m.; Tallahassee, FL).
PDF:
Date: 01/11/2018
Proceedings: Order of Consolidation (DOAH Case Nos. 18-0068CON, 18-0071CON, and 18-0075CON)).
PDF:
Date: 01/11/2018
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 01/08/2018
Proceedings: Initial Order.
PDF:
Date: 01/05/2018
Proceedings: Decisions on Batched Applications filed.
PDF:
Date: 01/05/2018
Proceedings: Petition Supporting Agency Decision and Challenging Co-batched Applicants filed.
PDF:
Date: 01/05/2018
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
JOHN D. C. NEWTON, II
Date Filed:
01/05/2018
Date Assignment:
01/08/2018
Last Docket Entry:
03/12/2019
Location:
Tallahassee, Florida
District:
Northern
Agency:
Other
Suffix:
CON
 

Counsels

Related Florida Statute(s) (6):

Related Florida Rule(s) (2):