Opinion
NO. 2013-CA-001122-MR
05-22-2015
ADVANCED LIVING, INC., D/B/A ADVANCED LIVING REHABILITATION HOSPITAL APPELLANT v. COMMONWEALTH OF KENTUCKY, THE CABINET FOR HEALTH AND FAMILY SERVICES; ASHLAND HOSPITAL CORPORATION, D/B/A KING'S DAUGHTERS' MEDICAL CENTER APPELLEES
BRIEFS FOR APPELLANT: Dwight O. Bailey Flatwoods, Kentucky BRIEF FOR APPELLEE, COMMONWEALTH OF KENTUCKY, THE CABINET FOR HEALTH AND FAMILY SERVICES: Ann Truitt Hunsaker Frankfort, Kentucky BRIEF FOR APPELLEE, ASHLAND HOSPITAL CORPORATION, D/B/A KING'S DAUGHTERS' MEDICAL CENTER: Michael D. Baker Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 00-CI-00050
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Advanced Living, Inc., d/b/a Advanced Living Rehabilitation Hospital, appeals from the Franklin Circuit Court's May 31, 2013 order upholding the final order of the Cabinet for Health and Family Services that disapproved Advanced Living's application for a certificate of need. Advanced Living argues the hearing officer misapplied the law and the Cabinet's order is arbitrary, capricious, and not based on substantial evidence. We disagree and affirm.
I. Facts and Procedure
Advanced Living is a private for-profit corporation owned by James and Nancy Bailey. In June 1999, representatives of Advanced Living filed an application for a certificate of need to establish a thirty-bed comprehensive rehabilitation hospital in the FIVCO area development district (ADD) in Flatwoods, Kentucky. The proposed rehabilitation hospital was to be located next to an existing independent/assisted living and personal-care facility also owned by Advanced Living.
Area development districts are the geographic regions for reviewing all certificate-of-need applications. The FIVCO ("Five County") area development district includes the counties of Greenup, Boyd, Carter, Elliott, and Lawrence. KRS 147A.050(10).
A public hearing to address Advanced Living's application was held on October 27, 1999.
At the hearing, James Bailey testified that the proposed rehabilitation hospital was designed to treat the elderly for hip fractures, orthopedic concerns, trauma, joint replacement, stroke, arthritis, burns, pulmonary issues, cardiac problems, and other similar ailments. The hospital would occupy 19,063 square feet and follow a "clustered cottage" concept where resident rooms are grouped around a common parlor and living space. In addition to being near Advanced Living's independent/assisted living facility, the rehabilitation hospital would reside in close proximity to numerous shops, restaurants, a grocery store, a United States Post Office, and Our Lady of Bellefonte Hospital Outreach.
Bailey testified there was a need for a rehabilitation hospital in the proposed area due to the expanding elderly population and the increased risk of occupational injuries and illnesses in that area due to local heavy industries. To support Bailey's testimony, Advanced Living submitted a population forecast generated by the University of Louisville which predicted a 29% increase by year 2020 in the number of sixty-five-year-old individuals residing in the FIVCO area development district. Bailey also testified that no rehabilitation beds were available in the adjacent Buffalo Trace area development district, and claimed that patients were being transferred by local hospitals to rehabilitation facilities outside the FIVCO area. Advanced Living submitted over 175 letters of support from physicians, community members, and Bellefonte Hospital employees attesting to the need for additional rehabilitation services in the area.
Bailey estimated the project's total capital expenditure to be $2,387,752.00. He testified that First & Peoples Bank and Trust Company, with which Bailey had a steady and established professional relationship, expressed a sincere interest, albeit without making a firm commitment, in financing the project.
Bailey projected the rehabilitation hospital would have 322 patients for 5,475 patient days and an average daily census of 15 patients (50% occupancy) in the first year of operation, and 483 patients for 8,212 patient days and an average daily census of 22.5 patients (75% occupancy) in the second year of operation. Advanced Living submitted a fee schedule showing an average charge of $925.00 per patient per day and an average cost of $620.00 per patient per day. It projected it would reach an economically viable break-even point with an average daily census of 24 patients, and that was calculated to be within the first six months of the second year of operation.
Bailey presented no bed-need analysis or other evidence to support its utilization projections. He chose to defer to "another witness" to testify to the details of Advanced Living's projections and as to a bed-need methodology. Therapist David Apts, owner and operator of Physical Therapy Center of Ashland, was the only other witness called by Advanced Living. Apts admitted he did not participate in making the utilization or the bed-need projections, and could offer no testimony or evidence to support either figure.
Apts nonetheless offered testimony supporting Advanced Living's application. Apts explained that his physical therapy clinic had recently expanded from one office to several in and around the FIVCO area. He testified that, in his opinion, there was a need for additional rehabilitation care in the FIVCO area and that he would cooperate with and provide services for the hospital as needed.
Appellee Ashland Hospital Corporation d/b/a King's Daughters' Medical Center, which is also located in the FIVCO area development district, opposed Advanced Living's certificate-of-need application. King's Daughters, through the testimony of Susan Strehle, submitted evidence that it currently operates a twenty-seven bed comprehensive physical rehabilitation unit. For the past five years, the unit had an occupancy rate between 71.7% and 75.4% and had not turned away a single qualified patient; the unit was not operating at capacity; and on an average day it had seven empty beds. Strehle testified that only ten patients were referred from Bellefonte Hospital to a rehabilitation facility outside the FIVCO area in the past year. Additionally, based on a census conducted at Three Rivers Medical Center, less than ten patients per year were expected to need inpatient comprehensive physical rehabilitation services.
Strehle further testified that, at the end of 1997, the state average was 11.38 rehabilitation beds per 100,000 population. After additional rehabilitation beds were approved in multiple area development districts in 1998 and 1999, the state average rose to 15.94 beds per 100,000 population. At the time of the hearing, the FIVCO area already had 19.70 beds per 100,000 population, the most of any of Kentucky's fifteen area development districts. If the hearing officer approved Advanced Living's application, that number would increase to 41.79 beds per 100,000 population.
Utilizing the bed-need methodology contained in the 1999 Update to the 1998-2000 State Health Plan, Strehle testified the FIVCO area had a gross need for 17 rehabilitation beds and a bed inventory of 27, resulting in a net-bed need of negative ten (-10). Strehle testified those 27 beds were located at King's Daughters. Approval of Advanced Living's application would bring the total number of comprehensive rehabilitation beds in the FIVCO area to 57.
On November 17, 1999, the hearing officer denied Advanced Living's application, finding it inconsistent with two of the five statutory criteria identified in KRS 216B.040(2)(a). Specifically, despite satisfying criteria one, three, and five, the hearing officer found Advanced Living failed to satisfy criteria two and four, reasoning:
Kentucky Revised Statutes.
[Criterion Two:] While Advanced Living has demonstrated that the proposed rehabilitation hospital would be accessible to the residents of the proposed service area in all respects, it has failed to satisfy its burden of demonstrating an identified need for the Proposal in the defined geographic area. Advanced Living contends that the growth in the elderly population, the increased risk for occupational injuries and illnesses in the area due to heavy local industry, the loss of patients from the area to rehabilitation facilities in West Virginia and other parts of Kentucky, among other factors, demonstrate the need for thirty (30) additional comprehensive physical rehabilitation hospital beds in the proposed area. However, the undersigned finds none of this evidence, when taken as a whole, to be sufficient evidence to demonstrate an identified need for the Proposal in the proposed geographic area. Advanced Living failed to offer convincing evidence or a methodology to support its utilization projections and its contention of need. In addition, King's Daughters presented convincing evidence to support its claim that its own rehabilitation hospital has additional capacity. King's Daughters also presented evidence regarding a lack of need for additional comprehensive physical rehabilitation beds in the area based upon a need methodology which shows a bed need of negative ten (-10) in the FIVCO ADD (ADD 10). Although this methodology does not take effect in the 1999 Update to
the 1998-2000 State Health plan under the Review Criteria in Criterion One until January 1, 2000, it still serves as convincing evidence of lack of need.(R. at 19-21). Additionally, with respect to criterion one the hearing officer stated:
. . . .
[Criterion Four:] Advanced Living has contacted First & People's Bank and Trust Company, Russell, Kentucky, regarding arrangements for financing of the Proposal. The Bank has expressed an initial interest in the project due to Bailey's business and financial background and his long-standing relationship with the Bank. However, even if the initial financing is available, Advanced Living failed to present sufficient proof that it would be able to achieve and maintain the requisite level of utilization to make the Proposal financially feasible. According to its application, Advanced Living would need to achieve an average daily census of twenty[-four] (24) patients in order to breakeven. Advanced Living failed to present sufficient evidence that it would be able to achieve this level of utilization. Furthermore, Advanced Living presented no witnesses that could in any way explain the basis for the financial projections in the Application. In short, Advanced Living failed to satisfy its burden of proving the economic feasibility of implementing and operating the Proposal.
The 1999 Update to the 1998-2000 State Health Plan, effective October 20, 1999, contains Review Criteria for Comprehensive Physical Rehabilitation Hospital Beds. However, this Review Criteria [, by its own terms,] is not effective until January 1, 2000. Consequently, there was no specific State Health Plan Certificate of Need Review Criteria for Comprehensive Physical Rehabilitation Hospital Beds in effect at the time of this hearing or on the date of this decision. Therefore, the undersigned finds the Application consistent with Criterion One.(R. at 18-19).
Advanced Living filed a request for reconsideration which was also denied. On January 11, 2000, Advanced Living filed a Petition For Review And Appeal And For Declaration Of Rights in Franklin Circuit Court. By Opinion and Order entered May 31, 2013, the circuit court affirmed the Cabinet's final order finding it supported by substantial evidence. Advanced Living appealed. We will discuss additional facts as they become relevant.
The circuit court offered the following explanation for the lengthy delay between the filing of Advanced Living's petition for review and the circuit court's ruling thereon: "The decision in this matter was delayed due to the involved attorneys' failure to submit the case for consideration and decision according to the Court's Order Vacating Dismissal and Setting Briefing Schedule, which was entered on January 26, 2006, to set aside a prior Order dismissing this matter for failure to prosecute." (R. at 161).
II. Standard of Review
Judicial review of an administrative decision focuses on arbitrariness. Kaelin v. City of Louisville, 643 S.W.2d 590, 591 (Ky. 1982). One aspect of arbitrariness review is "whether determinations are supported by substantial evidentiary support." Hilltop Basic Res., Inc. v. County of Boone, 180 S.W.3d 464, 467 (Ky. 2005). Thus, this Court generally confines its review to whether: (1) the findings of fact are supported by substantial evidence of probative value; and (2) the administrative agency applied the correct rule of law to the facts. Board of Com'rs of City of Danville v. Davis, 238 S.W.3d 132, 135 (Ky. App. 2007).
Our review, however, is altered when the agency denies relief to the party saddled with the burden of proof. Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 838 (Ky. App. 1994). In such a case, "the failure to grant administrative relief to one carrying the burden is arbitrary [only] if the record compels a contrary decision in light of substantial evidence therein." Id.
Not infrequently, contestants appear at the judicial level arguing that the administrative decision is not supported by substantial evidence when the board has offered no relief in the first instance. In other words, the board has ruled that the one having the burden of proof—usually the applicant—has failed. In such cases, attention should be directed to the administrative record in search of compelling evidence demonstrating that the denial of the relief sought was arbitrary. The argument should be that the record compels relief. The argument that there is no substantial evidence to support nonrelief is an anomaly.Id. Evidence is compelling if it is so overwhelming that no reasonable person could fail to reach the same conclusion. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 108 (Ky. App. 2007) (citation omitted).
Furthermore, it is basic hornbook law that the "trier of facts is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses appearing before it." Bowling v. Natural Res. and Env't Prot. Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1994). "To put it simply, 'the trier of facts in an administrative agency may consider all of the evidence and choose the evidence that he believes.'" Id. (citation omitted). This Court may not reconsider or "pass upon the credibility of witnesses, and the weight of the evidence" for these functions rest within the "exclusive province of the administrative trier of fact." Id.
Finally, statutory interpretation is a legal consideration that we review de novo. See Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).
III. Analysis
Advanced Living raises three issues on appeal: (1) whether the circuit court improperly determined that the hearing officer applied the appropriate standards and law; (2) whether the circuit court erroneously found that the Cabinet's decision was supported by substantial evidence; and (3) whether the circuit court mistakenly concluded that the hearing officer properly denied reconsideration.
A. Proper Standards and Law
Advanced Living first argues that the hearing officer inappropriately applied the 1999 Update to the 1998-2000 State Health Plan. Because the hearing officer applied the wrong law, Advanced Living argues, the Cabinet's decision must be reversed. We are not persuaded.
In Kentucky, before establishing a health facility a person must obtain a certificate of need. KRS 216B.061. The Cabinet is the administrative agency vested with authority to issue certificates of need. KRS 216B.010. To obtain a certificate of need, KRS 216B.040(2)(a)2 and its regulatory counterpart, 900 KAR 6:050 § 7(1), require an applicant to satisfy five criteria. Those criteria are: (1) consistency with the State Health Plan; (2) need and accessibility; (3) interrelationships and linkages; (4) costs, economic feasibility, and resources availability; and (5) quality of services. KRS 216B.040(2)(a)2.
A "certificate of need" is defined as "authorization by the Cabinet to acquire, to establish, to offer, to substantially change the bed capacity, or to substantially change a health service as covered by this chapter[.]" KRS 216B.015(8).
Kentucky Administrative Regulations.
The State Health Plan is a document prepared by the Cabinet and designed to ascertain whether there is a sufficient "need" from a statistical perspective for a new or expanded service in a particular area. Comprehensive Home Health Servs., Inc. v. Prof'l Home Health Care Agency, Inc., 434 S.W.3d 433, 435 (Ky. 2013). "The purpose of the [State Health Plan] is to 'set forth review criteria that shall be used when reviewing applications for certificates of need for consistency with plans pursuant to KRS 216B.040.'" Id. (citation omitted).
Related to this case, the 1998-2000 State Health Plan provided the following review criteria for comprehensive physical rehabilitation beds:
An application for a certificate of need for comprehensive physical rehabilitation beds shall be consistent with this plan if the following criteria are met:
(a) There are no comprehensive physical rehabilitation beds in the area development district or the occupancy of comprehensive physical rehabilitation beds in operation in the area development district was 75% or more according to the most recent published annual hospital utilization and services report available at the time of the public hearing on the application ("annual utilization report"). . . .
(b) In an area development district where existing comprehensive physical rehabilitation beds are not
operating at 75 percent occupancy, the applicant shall document [four specific items].In 1999, the Cabinet issued the 1999 Update to the 1998-2000 State Health Plan. The 1999 Update went into effect on October 20, 1999, and described modified review criteria for comprehensive physical rehabilitation beds.
1. Effective January 1, 2000, an applicant that does not have existing licensed or certificate of need approved comprehensive physical rehabilitation beds and is proposing to establish such beds, shall demonstrate that the overall occupancy for comprehensive physical rehabilitation beds in the [area development district] exceeds 75 percent as computed from the most recently published rehabilitation inventory and utilization data;
. . . .
3. Effective January 1, 2000, if criterion (1) or (2) is met, the maximum number of beds that may be approved in the [area development district] shall be computed by the following formula: N[ ] = [(PD[ ]/P[ ]) x PP[ ] / (365 x .75[ ])] - (LB[ ] + AB[ ]).
N = need for comprehensive rehabilitation beds in the area development district.
PD = the number of inpatient days in rehabilitation beds statewide as reported in the most recently published data.
P = estimated population in the state for the period used to derive patient days.
PP = estimated 2002 population for the area development district.
.75 = the desired average annual occupancy rate for rehabilitation beds in the area.
LB = existing licensed comprehensive physical rehabilitation beds in the area.
AB = the number of rehabilitation beds in the area for which a certificate of need had been granted.
In the case before us, Advanced Living argues the hearing officer applied the wrong legal standard when it utilized the 1999 Update's review criteria, instead of the review criteria contained in the 1998-2000 State Health Plan, to determine if Advanced Living's application was consistent with the State Health Plan under criterion one. The hearing officer plainly states, on more than one occasion, that the rehabilitation bed review criteria in the 1999 Update did not take effect until January 1, 2000. The hearing officer was certainly aware of the modified review criteria's effective date. There is nothing in the record suggesting the hearing officer relied upon the 1999 Update when evaluating criterion one.
Advanced Living also argues that the hearing officer misstated the law when he found there was no specific state health plan review criteria related to rehabilitation beds in effect at the time of the hearing. We agree with this proposition, generally. The review criteria in the 1998-2000 State Health Plan remained in place until the modified criteria contained in the 1999 Update went into effect on January 1, 2000. Nevertheless, we find the hearing officer's mistaken belief to be of no consequence in this case because, despite the hearing officer's erroneous statement, it found Advanced Living had met its burden as to criterion one. We find it puzzling that Advanced Living is asking this Court to undo a ruling by the hearing officer that turned in Advanced Living's favor. We decline to do so.
Advanced Living further contends that, once it proved that its application was consistent with the 1998-2000 State Health Plan, no further proof of "need" was required and no other evidence regarding "need" should have been considered by the hearing officer. In essence, it is Advanced Living's position that satisfaction of criterion one - consistency with the State Health Plan - by default also satisfies criterion two - need and accessibility. To accept Advanced Living's interpretation would render criterion two meaningless. When interpreting a statute, we presume "that the General Assembly intended for the statute to be construed as a whole and for all of its parts to have meaning." King Drugs, Inc. v. Commonwealth of Kentucky, Revenue Cabinet, 250 S.W.3d 643, 645 (Ky. 2008). "Need," in a statistical sense, is certainly part of the calculation when evaluating whether an applicant's proposal is consistent with the State Health Plan under criterion one. We can envision several scenarios in which the evidence related to "need" under criteria one and two overlap. They are, nonetheless, two distinct criterions, both of which must be separately considered by the hearing officer and satisfied by the applicant.
Advanced Living also takes issue with the hearing officer's decision to consider as persuasive (though not binding) King's Daughters' bed-need projections under the 1999 Update in its consideration of criterion two. Utilizing the formula identified in the 1999 Update, King's Daughters calculated that the FIVCO area had a bed-need of negative ten, meaning the area had ten more rehabilitation beds than it needed. King's Daughters argued this suggested there was a lack of need for additional rehabilitation beds in the defined area. Advanced Living asserts the rehabilitation bed review criteria in the 1999 Update was not the law at the time of the hearing and therefore it was highly improper for the hearing officer to rely on King's Daughters' evidence related thereto. We do not find the hearing officer's decision improper. The 1999 Update's revised bed-need methodology was to shortly go into effect. Advanced Living was certainly aware of this. Further, the hearing officer considered the evidence persuasive, not outcome determinative, and, as set forth below, considered it along with a host of other evidence related to criterion two. We find no error meriting reversal.
B. Substantial Evidence Compelling Relief
Advanced Living next asserts that the hearing officer's decision as to criteria two and four is not supported by substantial evidence. As such, Advanced Living argues, it is arbitrary and capricious, and the circuit court erred by upholding the Cabinet's order. We disagree.
As previously referenced, the hearing officer determined that Advanced Living did not carry its burden as to criteria two and four. It issued specific factual justifications supporting its decision. Turning first to criterion two, it was Advanced Living's burden to convince the hearing officer that its proposal met "an identified need in" the FIVCO area and would "be accessible to all residents of the area." KRS 216B.040(1)(a)2b; 900 KAR 6:070, Section 2(2). Advanced Living submitted evidence upon which the hearing officer could have relied, but it did not. In fact, the hearing officer frequently characterized Advanced Living's evidence as unconvincing and lacking documented support. The hearing officer was ultimately swayed by King's Daughters' evidence. Notably, King's Daughters submitted uncontroverted evidence that Bellefonte Hospital referred only ten patients to other rehabilitation facilities and that the FIVCO area already had substantially more rehabilitation beds per capita than the rest of the state. Strehle also testified King's Daughters' facility was not operating at capacity, almost always had available rehabilitation beds, and had never turned away a qualified rehabilitation patient.
In all, the hearing officer found much of Advanced Living's evidence non-credible and unconvincing. It was certainly within the province of that court to do so. As "a reviewing court [we] must hold fast to the guiding principle that the trier of facts is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses appearing before it." Bowling, 891 S.W.2d at 409-10.
We now address criterion four. That factor required the hearing officer to measure Advanced Living's proposal "against the cost of alternatives for meeting needs" and to consider whether the proposal was "an effective and economic use of resources, not only of capital investment, but also ongoing requirements for health manpower and operational financing." KRS 216B.040(2)(a)2.d. The hearing officer concluded it was not economically feasible to implement and operate the proposed rehabilitation hospital. Though Advanced Living offered utilization and financial projections, the hearing officer heavily discounted those figures because they were not supported by persuasive testimony or other meaningful evidence. For example, by its own calculations, Advanced Living needed an average daily census of twenty-four patients to break even, but failed to present proof demonstrating it could achieve and maintain this level of utilization. Further, the hearing officer chastised Advanced Living for offering no witnesses to explain the basis for its financial projections. All of this contributed to the hearing officer's decision to discredit Advanced Living's evidence. After doing so, the hearing officer was not persuaded that the proposed rehabilitation hospital was an effective and economic use of resources.
In all, Advanced Living has not identified compelling evidence demonstrating that the denial of the relief sought was arbitrary. We are simply not convinced that the record compels a different result. Accordingly, the circuit court's order upholding the Cabinet's decision will be sustained.
C. Reconsideration
Finally, Advanced Living argues the Cabinet erred when it refused to grant Advanced Living's request for reconsideration. Again, we disagree.
KRS 216B.090 confers upon an aggrieved party the right to request reconsideration of the hearing officer's decision for good cause shown. That statute further clarifies that, "[f]or purposes of this section there shall be deemed to be 'good cause shown' if the request . . . : (a) Presents significant, relevant information not previously available for consideration by the cabinet[.]" KRS 216B.090(1)(a).
KRS 216B.090(1) identifies three additional grounds that, if proven, amount to good cause requiring reconsideration; none is relevant to this appeal.
Advanced Living attached to its reconsideration petition what it considered to be newly discovered evidence in the form of an affidavit from the Vice-President of Patient Care Services at Our Lady of Bellefonte Hospital. The affidavit included transfer statistics of patients from Bellefonte Hospital to King's Daughters and other rehabilitation facilities in 1998 and the early part of 1999. Advanced Living claims in its brief to this Court that the affidavit was not available at the time of the public hearing.
Advanced Living also attached revised calculations of the proposed facility's "breakeven" point to its reconsideration petition. Advanced Living claims the calculations it presented at the hearing were incorrect and, to the extent the hearing officer relied on Advanced Living's evidence, its decision was predicated upon a mistake of fact.
The question for our consideration is whether these items constitute "significant, relevant information not previously available for consideration by the cabinet" thereby requiring reconsideration. We do not think so.
There is little to no case law interpreting KRS 216B.090(1)(a). However, that statute is akin to CR 60.02(b), which permits a trial court to relieve a party from a final judgment entered against him upon a showing that there is "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02[.]" Id. Within the context of CR 60.02(b), newly discovered evidence is that which "could not have been obtained at the time of trial through the exercise of reasonable diligence." Commonwealth v. Harris, 250 S.W.3d 637, 642 (Ky. 2008). We think this statement is equally applicable to KRS 216B.090(1)(a).
Kentucky Rules of Civil Procedure.
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Turning first to the affidavit, Advanced Living's skeletal assertion that the affidavit was unavailable at the time of the hearing is insufficient to deem it "relevant information not previously available for consideration." KRS 216B.090(1)(a). First, while Advanced Living claims the affidavit was not available, it at no point asserts that the information contained in the affidavit was not available. Second, and as a corollary to the first, Advanced Living has failed to demonstrate why this information was unavailable at the time of the hearing. And, third, we are convinced that the information which, again, was simply Bellefonte Hospital's rehabilitation transfer statistics for 1998 and the first part of 1999, could have, upon the exercise of reasonable diligence, been obtained and presented at the hearing.
The break-even recalculation likewise does not constitute previously unavailable evidence. Advanced Living does not assert that it based its revised numbers on prior unknown information. Instead, it claims that, upon receiving the Cabinet's decision, its accountant realized it had made a mistake and, therefore, re-worked the numbers. "An opinion consisting simply of a reexamination and reinterpretation of previously known facts cannot be regarded as 'newly discovered evidence.'" Foley v. Commonwealth, 425 S.W.3d 880, 887 (Ky. 2014). Advanced Living's recalculation of its break-even numbers does not amount to previously unknown evidence mandating reconsideration of the Cabinet's decision.
IV. Conclusion
We affirm the Franklin Circuit Court's May 31, 2013 order affirming the Cabinet's November 17, 1999 final order.
ALL CONCUR. BRIEFS FOR APPELLANT: Dwight O. Bailey
Flatwoods, Kentucky
BRIEF FOR APPELLEE,
COMMONWEALTH OF
KENTUCKY, THE CABINET FOR
HEALTH AND FAMILY
SERVICES:
Ann Truitt Hunsaker
Frankfort, Kentucky
BRIEF FOR APPELLEE, ASHLAND
HOSPITAL CORPORATION, D/B/A
KING'S DAUGHTERS' MEDICAL
CENTER:
Michael D. Baker
Lexington, Kentucky