The Florida Senate

¹408.039  Review process.--The review process for certificates of need shall be as follows:

(1)  REVIEW CYCLES.--The agency by rule shall provide for applications to be submitted on a timetable or cycle basis; provide for review on a timely basis; and provide for all completed applications pertaining to similar types of services or facilities affecting the same service district to be considered in relation to each other no less often than two times a year.

(2)  LETTERS OF INTENT.--

(a)  At least 30 days prior to filing an application, a letter of intent shall be filed by the applicant with the agency, respecting the development of a proposal subject to review. No letter of intent is required for expedited projects as defined by rule by the agency.

(b)  The agency shall provide a mechanism by which applications may be filed to compete with proposals described in filed letters of intent.

(c)  Letters of intent must describe the proposal; specify the number of beds sought, if any; identify the services to be provided and the specific subdistrict location; and identify the applicant.

(d)  Within 21 days after filing a letter of intent, the agency shall publish notice of the filing of letters of intent in the Florida Administrative Weekly and notice that, if requested, a public hearing shall be held at the local level within 21 days after the application is deemed complete. Notices under this paragraph must contain due dates applicable to the cycle for filing applications and for requesting a hearing.

(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. Within 15 days after the applicable application filing deadline established by department rule, the staff of the department shall determine if the application is complete. If the application is incomplete, the staff shall request specific information from the applicant necessary for the application to be complete; however, the staff may make only one such request. If the requested information is not filed with the department within 21 days of the receipt of the staff's request, the application shall be deemed incomplete and deemed withdrawn from consideration.

(b)  Upon the request of any applicant or substantially affected person within 14 days after notice that an application has been filed, a public hearing may be held at the department's discretion if the department determines that a proposed project involves issues of great local public interest. The public hearing shall allow applicants and other interested parties reasonable time to present their positions and to present rebuttal information. A recorded verbatim record of the hearing shall be maintained. The public hearing shall be held at the local level within 21 days after the application is deemed complete.

(4)  STAFF RECOMMENDATIONS.--

(a)  The department's review of and final agency action on applications shall be in accordance with the district plan, and statutory criteria, and the implementing administrative rules. In the application review process, the department shall give a preference, as defined by rule of the department, to an applicant which proposes to develop a nursing home in a nursing home geographically underserved area.

(b)  Within 60 days after all the applications in a review cycle are determined to be complete, the department shall issue its State Agency Action Report and Notice of Intent to grant a certificate of need for the project in its entirety, to grant a certificate of need for identifiable portions of the project, or to deny a certificate of need. The State Agency Action Report shall set forth in writing its findings of fact and determinations upon which its decision is based. If a finding of fact or determination by the department is counter to the district plan of the local health council, the department shall provide in writing its reason for its findings, item by item, to the local health council. If the department intends to grant a certificate of need, the State Agency Action Report or the Notice of Intent shall also include any conditions which the department intends to attach to the certificate of need. The department shall designate by rule a senior staff person, other than the person who issues the final order, to issue State Agency Action Reports and Notices of Intent.

(c)  The department shall publish its proposed decision set forth in the Notice of Intent in the Florida Administrative Weekly within 14 days after the Notice of Intent is issued.

(d)  If no administrative hearing is requested pursuant to subsection (5), the State Agency Action Report and the Notice of Intent shall become the final order of the department. The department shall provide a copy of the final order to the appropriate local health council.

(5)  ADMINISTRATIVE HEARINGS.--

(a)  Within 21 days after publication of notice of the State Agency Action Report and Notice of Intent, any person authorized under paragraph (c) to participate in a hearing may file a request for an administrative hearing; failure to file a request for hearing within 21 days of publication of notice shall constitute a waiver of any right to a hearing and a waiver of the right to contest the final decision of the agency. A copy of the request for hearing shall be served on the applicant.

(b)  Hearings shall be held in Tallahassee unless the administrative law judge determines that changing the location will facilitate the proceedings. The agency shall assign proceedings requiring hearings to the Division of Administrative Hearings of the Department of Management Services within 10 days after the time has expired for requesting a hearing. Except upon unanimous consent of the parties or upon the granting by the administrative law judge of a motion of continuance, hearings shall commence within 60 days after the administrative law judge has been assigned. All parties, except the agency, shall bear their own expense of preparing a transcript. In any application for a certificate of need which is referred to the Division of Administrative Hearings for hearing, the administrative law judge shall complete and submit to the parties a recommended order as provided in ss. 120.569 and 120.57. The recommended order shall be issued within 30 days after the receipt of the proposed recommended orders or the deadline for submission of such proposed recommended orders, whichever is earlier. The division shall adopt procedures for administrative hearings which shall maximize the use of stipulated facts and shall provide for the admission of prepared testimony.

(c)  In administrative proceedings challenging the issuance or denial of a certificate of need, only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications. Existing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need to a competing proposed facility or program within the same district.

(d)  The applicant's failure to strictly comply with the requirements of s. 408.037(1) or paragraph (2)(c) is not cause for dismissal of the application, unless the failure to comply impairs the fairness of the proceeding or affects the correctness of the action taken by the agency.

(e)  The agency shall issue its final order within 45 days after receipt of the recommended order. If the agency fails to take action within such time, or as otherwise agreed to by the applicant and the agency, the applicant may take appropriate legal action to compel the agency to act. When making a determination on an application for a certificate of need, the agency is specifically exempt from the time limitations provided in s. 120.60(1).

(6)  JUDICIAL REVIEW.--

(a)  A party to an administrative hearing for an application for a certificate of need has the right, within not more than 30 days after the date of the final order, to seek judicial review in the District Court of Appeal pursuant to s. 120.68. The department shall be a party in any such proceeding.

(b)  In such judicial review, the court shall affirm the final order of the department, unless the decision is arbitrary, capricious, or not in compliance with ss. 408.031-408.045.

(c)  The court, in its discretion, may award reasonable attorney's fees and costs to the prevailing party if the court finds that there was a complete absence of a justiciable issue of law or fact raised by the losing party.

History.--s. 26, ch. 87-92; s. 9, ch. 89-354; s. 15, ch. 92-33; s. 125, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 95-144; s. 190, ch. 96-410; s. 18, ch. 97-79; s. 5, ch. 97-270.

¹Note.--Section 14, ch. 97-270, provides that "[s]ubject to any final order of the Florida Supreme Court, ss. 408.036(1)(b) and 408.039(5)(c), Florida Statutes, as amended by this act, do not apply to any replacement application filed with the Agency for Health Care Administration prior to or pending a final hearing before the Division of Administrative Hearings as of April 1, 1997. It is the intent of the Legislature that the remaining provisions of this act do not apply to applications that have been filed prior to [July 1, 1997]."

Note.--Former s. 381.709.