Opinion
Case No. 96-2615
Opinion filed April 18, 1997.
An appeal from an order of the Division of Administrative Hearings.
R. Bruce McKibben, Jr., and Susan L. Turner of Holland Knight, Tallahassee, for Appellant/Cross-Appellee.
Gerald B. Sternstein and Frank P. Rainer of Ruden, Barnett, McClosky, Smith, Schuster Russell, P.A., Tallahassee, for Appellee/Cross-Appellant/Florida Convalescent Centers, Inc.
John F. Gilroy, Tallahassee, for Appellee/Agency for Health Care Administration.
Life Care Centers of America, Inc., (Life Care) appeals a final order of the Florida Agency for Health Care Administration (AHCA) denying Life Care's application for CON 8069. That CON application sought approval to combine two previously issued CONs, numbers 7138 and 7354. CON 7138 had been issued to Life Care for construction of a 57-bed facility. CON 7354 was previously issued to SHCC Services for 73 beds. SHCC's CON application indicated that SHCC intended to replace the 31-bed facility located in Lake Alfred, Florida (the Lake Alfred Restorium), and add 42 more beds at that location. However, AHCA did not expressly incorporate any condition restricting CON 7354 to the Lake Alfred site. Granting CON 8069 would result in construction of a single facility by Life Care with 130 beds, the number already approved, to be located in the same subdistrict as the two previously approved CONs, but not actually located in Lake Alfred. Florida Convalescent Centers, Inc., has filed a cross-appeal contesting AHCA's ruling that the application adequately stated the projected costs of the project. We find no merit to the cross-appeal, but reverse the denial of Life Care's application and remand with directions to award the CON.
Life Care's application was denied by AHCA based upon its conclusion that CON 7354 was for a "replacement" nursing home, and that a replacement was required by law to be constructed on the same site, relying upon section 408.036(3)(f), Florida Statutes (1993). That statute provides an exemption from comparative review for replacement facilities on the same site. However, it is undisputed that CON 7354 was issued after comparative review, and thus, did not rely upon the exemption in section 408.036(3)(f). AHCA has now conceded its misapplication of the concept of "replacement" and that Life Care is correct in arguing that CON 7354 should not be considered limited to the Lake Alfred location as a "replacement" facility. No authority has been cited to show that the position AHCA is now taking is incorrect. We accept AHCA's confession of error. Accordingly, we AFFIRM the ruling on the adequacy of the evidence of projected costs and REVERSE and REMAND the order denying the CON application with directions to grant Life Care's application for CON 8069.
BARFIELD, C.J., KAHN and DAVIS, JJ., CONCUR.