94-000003CON Manatee Hospitals And Health Systems, Inc., D/B/A Manatee Memorial Hospital vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, February 21, 1994.

Summary: Rules requiring application filing with local health agency are valid rules and agency properly rejected late applicant for CON.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE HOSPITALS & HEALTH SYSTEMS, )

INC., d/b/a MANATEE MEMORIAL )

HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7094RX

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

____________________________________)

MANATEE HOSPITALS & HEALTH SYSTEMS, )

INC., d/b/a MANATEE MEMORIAL )

HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0003

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER (#94-0003)

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled consolidated cases on January 14, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John M. Knight, Esquire

Robert S. Weiss, Esquire

Parker, Hudson, Rainer & Dobbs

118 North Gadsden Street

Tallahassee, Florida 32301

For Respondent: J. Robert Griffin, Esquire

Agency for Health Care Administration

The Atrium Building, Suite 301

325 John Knox Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issue for disposition is whether Petitioner's application for a

certificate of need (CON) was properly rejected by Respondent for failure to

file the application by the deadline established in rules 59C-1.008(k)1. and 2.

and 59C-1.008(4), F.A.C. The parties have stipulated that if the rules are

determined valid in the companion case, 93-7094RX, the agency was authorized to

reject the application.

PRELIMINARY STATEMENT

On December 16, 1993, Petitioner, Manatee Hospitals and Health Systems,

Inc., d/b/a Manatee Memorial Hospital (Manatee) filed its petition pursuant to

section 120.56 to contest the validity of the subject rules. (DOAH #93-7094RX)

Manatee also filed a petition pursuant to section 120.57(1), F.S., contesting

the Respondent's (Agency) decision to reject for review a certificate of need

(CON) application submitted by Manatee. (DOAH #94-0003)

Without objection, the two cases were consolidated for hearing in an order

dated January 12, 1994. As provided in section 120.56(3), F.S., a separate

final order is being issued this same date in DOAH #93-7094RX.

At the hearing the parties presented a thorough stipulation of material

facts, and the testimony of Elizabeth Dudek, qualified as an expert in health

planning and administration of the certificate of need program. Joint exhibits

#1-6 were received in evidence; official recognition was taken of an amendment

to former rule 10-5.008, F.A.C., filed on October 28, 1987, and effective

November 17, 1987. Official recognition was also taken of rules 10-5.002-.024,

F.A.C., as published in the Florida Administrative Weekly, Vol. 16, number 13,

on March 30, 1990.

The proposed findings of fact submitted by both parties are substantially

adopted here, there being no disputed issues of material fact.

FINDINGS OF FACT

1. Manatee Hospitals and Health Systems, Inc. d/b/a Manatee Memorial

Hospital (Manatee) is a nonprofit corporation which operates a short-term

general acute care hospital in Manatee County, Florida.

2. On November 1, 1993, Manatee timely and properly submitted a letter of

intent to the Agency for Health Care Administration (Agency) seeking authority

to convert up to 11 substance abuse beds and/or up to 28 acute care beds to 28

skilled nursing beds for review in the Nursing Home Batch Cycle, 2nd Cycle,

1993.

3. On December 1, 1993, Manatee submitted a CON application to the agency

seeking authority to convert up to 11 adult substance abuse beds and/or up to 28

acute care beds to 28 skilled nursing beds for review in the nursing home batch

cycle, 2nd cycle, 1993. The application included the appropriate filing fee.

4. Manatee failed to submit a copy of its CON application to the local

health council by 5:00 p.m. on the application due date of December 1, 1993.

Instead, the application was submitted to the local health council on December

2, 1993.

5. By correspondence from Liz Dudek, Chief, Certificate of Need and Budget

Review Section, dated December 7, 1993, the agency advised Manatee that its CON

application was not accepted and was being returned to Manatee because Manatee

failed to submit a copy of its application to the health council by 5:00 p.m. on

the application due date of December 1, 1993, as required by rules 59C-

1.008(1)(k)1., and 2., and 59C-1.008(4), F.A.C.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to section 120.57(1), F.S.

7. Section 408.039(3)(a), F.S., provides, in pertinent part:

(3) Application Processing.--

(a) An applicant shall file an

application with the department, and shall

furnish a copy of the application to the

local health council and the department.

8. Rules 59C-1.008(1)(k)1. and 2., F.A.C. provide:

(k) Certificate of Need Application

Submission. An application for a certificate

of need shall be submitted on HRS Form 1455,

August 1985, and HRS Form 1460, June 1991

incorporated by reference herein, and shall

be provided by the agency upon request.

1. The application must be actually

received by the agency by 5 p.m. local time

and a copy must actually be received by the

local health council by 5 p.m. local time on

or before the application due date.

2. An application submitted to the agency

shall not be accepted by the agency, and the

application fee will be returned if a copy of

the application is not received by the

appropriate local health council as provided

above.

Rule 59C-1.008(4), F.A.C. provides:

(4) Submission to Local Health Council.

Each applicant shall submit a copy of its

application to the applicable local health

council at the same time the application is

submitted to the agency. Failure to timely

file with the local health council as set

forth in Rule 59C-1.008(1)(k), F.A.C., will

result in the application not being accepted

by the agency.

9. The above rules have been found a valid exercise of delegated

legislative authority in a separate order entered this same date in DOAH case

#93-7094RX. The parties have stipulated that if the rules are determined valid,

so also is the agency action in rejecting Manatee's late-filed application.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That Petitioner's request that the agency accept its application for

comparative review in the Nursing Home Cycle, 2nd cycle be DENIED.

DONE AND RECOMMENDED this 21st day of February, 1994, in Tallahassee, Leon

County, Florida.

_________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of February, 1994.

COPIES FURNISHED:

John M. Knight, Esquire

The Perkins House, Suite 200

118 North Gadsden Street

Tallahassee, Florida 32301

J. Robert Griffin, Esquire

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

Robert L. Powell, Agency Clerk

Department of Health and

Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel

Department of Health and

Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

MANATEE HOSPITALS AND

HEALTH SYSTEMS, INC. d/b/a/

MANATEE MEMORIAL HOSPITAL,

Petitioner, CASE NO.: 94-0003

RENDITION NO.: AHCA-94-62-FOF-CON

vs.

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Respondent.

_____________________________/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency

order. The Hearing Officer assigned by the Division of Administrative Hearings

(DOAH) in the above-styled case submitted a Recommended Order to the Agency for

Health Care Administration (AHCA). The Recommended Order entered February 21,

1994, by Hearing Officer Mary Clark is incorporated by reference.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact

set forth in the Recommended Order.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of

law set forth in the Recommended Order.

Based upon the foregoing, it is

ADJUDGED, that the application of Manatee Hospitals and Health Systems for

a certificate of need be DENIED.

DONE and ORDERED this 4th day of April, 1994, in Tallahassee, Florida.

_______________________________

Douglas M. Cook, Director

Agency for Health Care

Administration

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

Copies furnished to:

Robert A. Weiss, Esquire

John M. Knight, Esquire

PARKER, HUDSON, RAINER & DOBBS

The Perkins House, Suite 200

118 North Gadsden Street

Tallahassee, FL 32301

J. Robert Griffin, Esquire

Senior Attorney, Agency for

Health Care Administration

325 John Knox Road

Atrium Building, Suite 301

Tallahassee, FL 32303-4131

Mary Clark

Hearing Officer

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Elizabeth Dudek (AHCA/CON)

Alberta Granger (AHCA/CON)

Elfie Stamm (AHCA/CON)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished to the above named addresses by U.S. Mail this 6th day of April, 1994.

_______________________________

R. S. Power, Agency Clerk

State of Florida, Agency for

Health Care Administration

325 John Knox Road

The Atrium Building, Suite 301

Tallahassee, FL 32303

[phone]