Health Quest Realty XII v. Department of Health & Rehabilitative Services
Health Quest Realty XII v. Department of Health & Rehabilitative Services
070rehearing
OPINION ON MOTION FOR REHEARING AND/OR . CLARIFICATION
Upon consideration of Health Quest’s motion for rehearing and/or clarification we agree that this court misstated one of Health Quest’s contentions on page five of our original opinion. This court stated that Health Quest contended Broward County has a greater number of Medicaid patients per 1,000 indigent elderly than other counties when in actuality Health Quest sought to show that Broward County has a fewer number of Medicaid patients per 1,000 indigent elderly than other counties. As we stated in our original opinion, this and other figures were introduced by Health Quest to show that Medicaid patients are not using nursing home beds in Broward County and consequently the indigent elderly are not getting service in Broward County. We adhere to our original opinion that this particular factor (as well as the other three factors relied upon by Health Quest) are considered in the bed need methodology provided for in Rule 10-5.11(21). Specifically, Rule 10-5.11(21) does measure projected need for nursing home beds based in part on the number of impoverished elderly persons in the county.
In all other respects the motion for rehearing and/or clarification is denied.
MILLS and THOMPSON, JJ., concur.
Opinion of the Court
Health Quest sought a certificate of need (CON) to construct and operate a nursing home in Broward County. HRS denied the application on the grounds of lack of need and Health Quest requested an administrative hearing. Subsequent to the hearing but before entry of the recommended order, HRS granted a CON for 101 nursing home beds to Health Care and Retirement Corporation of America (HCRC). Since HRS had already allocated the 101 beds which were needed in Broward County to HCRC, the hearing officer recommended the denial of Health Quest’s application. At the same time, the hearing officer ruled that the factors relied upon by Health Quest to show that an “abnormal”
The parties agree that pursuant to the bed need methodology contained in Rule 10-5.11(21), that only 101 additional nursing home beds were needed in Broward County. HCRC’s application for a CON for these beds was received and processed in the batching cycle
While it may have been a better practice for the hearing officer to determine the merits of Health Quest’s application based only on the facts adduced at the final hearing, without consideration of this post-hearing event, any error in this regard was harmless. Although the final order granting HCRC’s application for the beds in Broward County was not entered until after Health Quest’s hearing, we do not think HRS was required to ignore the impending grant of a CON to HCRC. Certainly HRS was entitled to recognize its own prior order granting a CON for the beds in Broward County to another party, HCRC, when it considered the hearing officer’s recommended order on Health Quest’s application.
On appeal, Health Quest has inexplicably cited Bio-Medical Applications of Ocala, Inc. v. Office of Community Medical Facilities, Department of Health and Rehabilitative Services, 374 So.2d 88 (Fla. 1st DCA 1979), in support of reversal. BioMedical and the case upon which it relies, Bio-Medical Applications of Clearwater, Inc. v. Department of Health and Rehabilitative Services, Office of Community Medical Facilities, 370 So.2d 19 (Fla. 2d DCA 1979), recognize that when an applicant for a CON is able to show that the granting of a CON to another applicant would substantially prejudice its application, and the applications are mutually exclusive, fairness requires that HRS conduct a comparative hearing at which the competing applications are considered simultaneously. We fail to see the connection between the holdings in those cases and this case.
We note, as HRS observes, that the BioMedical case and its predecessor preceded the adoption of batching cycles by HRS, and that Bio-Medical’s discernment of the right of one CON applicant to be heard on the application of another was in relation to “mutually exclusive” applications. 374 So.2d at 89. Health Quest has made no showing that its application and the application of HCRC are “mutually exclusive.” See Judge Glickstein’s dissenting opinion in South Broward Hospital District v. Department of Health and Rehabilitative Services, 385 So.2d 1094, 1095 (Fla. 4th DCA 1980). As HRS appropriately notes, Health Quest was not a simultaneous or near simultaneous applicant to HCRC, since HCRC had applied in the earlier batching cycle. Accordingly, HRS followed its long-standing policy and the statutorily mandated “batching cycles” process, and awarded the beds to the applicant in the prior batching cycle.
Under the circumstances present in this case we find merely academic the parties’ arguments concerning Health Quest’s entitlement to comparative review of its application with that of HCRC.
We have not overlooked Health Quest’s other point. Health Quest argued below that abnormal conditions existed in Broward County (District X) thereby warranting a deviation from the bed need methodology contained in Rule 10-5.11(21), and consideration of non-rule factors in determining need. Specifically, Health Quest sought to show: (1) Broward County (District X) has the fewest beds per capita of the eleven service districts in the state; (2) that Broward County has a greater number of medicaid patients per 1,000 indigent elderly than other counties, that these medicaid patients are not using nursing home beds in Broward County, and consequently the indigent elderly are not getting service in Broward County; (3) that the occupancy rate of 91.5% reported by HRS for Bro-ward County is misleadingly low and instead the occupancy rate is in excess of 95%; and (4) the population 75 + in Bro-ward County is growing faster than in the rest of Florida. We agree with HRS that these four factors are considered in the bed need methodology provided for in Rule 10-
The final order of HRS is AFFIRMED.
. Rule 10-5.1 l(21)(a), Florida Administrative Code.
. § 381.494(5), Fla.Stat. (1983); and Rule 10-5.-08, Florida Administrative Code.
. At the beginning of the administrative hearing, HRS requested the hearing officer to officially recognize the recommended order in HCRC’s administrative case. He did so without objection from Health Quest. Moreover, we observe that agencies may officially recognize certain facts, just as a court is permitted to judicially notice certain facts. 1 Fla.Jur.2d, Administrative Law, § 86, p. 672. A court may judicially notice its own actions and records, Section 90.202(5) and (6), Florida Statutes (1983), and we have no difficulty postulating that an administrative agency may recognize its own actions and orders.
. We note that Health Quest did not raise the hearing officer’s consideration of this post-hearing event in its exceptions to the hearing officer’s recommended order.
. Whether applicants in a later batching cycle are entitled to comparative review with applicants in earlier batching cycles has been said to be subject to "some difference of opinion." Federal Property Management Corporation v. Health Care and Retirement Corporation of America, 462 So.2d 493, 495 (Fla. 1st DCA 1984).
. This court has implicitly recognized a "priority” status based upon the time of application in Doctor’s Osteopathic Medical Center, Inc. v. Department of Health and Rehabilitative Services, 459 So.2d 1063 (Fla. 1st DCA 1984).
Reference
- Full Case Name
- HEALTH QUEST REALTY XII v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
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- 2 cases
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- Published