Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, BJ-390
| Decision Date | 29 July 1986 |
| Docket Number | No. BJ-390,BJ-390 |
| Citation | 493 So.2d 1055,11 Fla. L. Weekly 1643 |
| Parties | 11 Fla. L. Weekly 1643 BOCA RATON ARTIFICIAL KIDNEY CENTER, INC. and Delray Artificial Kidney Center, Inc., Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and West Boca Raton Artificial Kidney Center, Appellees. |
| Court | Florida District Court of Appeals |
C. Gary Williams and Stephen C. Emmanuel of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellants.
Richard A. Patterson, Asst. Gen. Counsel, Tallahassee, for appellee Dept. of Health and Rehabilitative Services.
E.G. Boone, Stephen K. Boone, and Peter R. Giroux of Boone, Boone, Klingbeil & Boone, Venice, Eric B. Tilton, Tallahassee, for West Boca Raton Artificial Kidney center.
Boca Raton Artificial Kidney Center, Inc. and Delray Artificial Kidney Center, Inc. appeal from a final order of the Department of Health and Rehabilitative Services (HRS) granting a certificate of need (CON) to West Boca Raton Artificial Kidney Center, Inc. for a five-station free-standing hemodialysis facility. We reverse and remand for entry of new recommended and final orders based on the need for additional dialysis stations as demonstrated by 1983-84 population data presented at the previous hearing.
On 13 December 1982, West Boca filed a CON application to establish a seven-station outpatient free-standing hemodialysis center in Palm Beach County, Florida. The application was deemed complete by HRS on 13 February 1983 and was denied on 8 April 1983. West Boca requested a formal administrative hearing on the denial, into which Boca Raton and Delray intervened. Before the hearing could be held, however, West Boca and HRS entered into a settlement wherein they agreed that the application would be granted in return for West Boca's dismissal of the hearing request. Pursuant to this settlement, West Boca voluntarily dismissed the proceeding and HRS issued the CON on 2 July 1984.
Boca Raton and Delray requested a formal hearing on the grant of the CON which, due to various delays, was not held until May 21-22, June 27-28, and July 1-3, 1985. At the outset of the hearing, West Boca introduced an amended application which demonstrated need for the dialysis stations using population data for 1986, which was received by the hearing officer over the appellants' objection based on Rule 10-5.11(18)(a), F.A.C., which provides that "[t]he base period for determining the need for a proposed chronic renal dialysis facility is one year from the date that the application is deemed complete by the department" (emphasis supplied), here 13 February 1983.
On 18 September 1985, the hearing officer recommended that West Boca's application be granted for five stations instead of the applied-for seven. The order addressed appellants' challenge of the use of 1986 data, rejecting the above-quoted rule as "inconsistent with HRS practice and common sense" and stating that "one year from the date of the final hearing was recognized as most appropriate." Appellants filed an exception to this conclusion, relying on Gulf Court Nursing Center v HRS, 483 So.2d 700 (Fla. 1st DCA 1985) reh. den. 11 F.L.W. 437 (Fla. 1st DCA 2/21/86), which was critical of the HRS practice of considering CON applications in light of new need data without requiring appropriate amendment. The final order rejected this exception because rehearing was still pending on the Gulf Court decision, and adopted the recommended order granting the CON.
We find no...
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