The review process for certificates of need shall be as follows:

(1) REVIEW CYCLES. The department 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, facilities, or equipment 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 local health council and the department, respecting the development of a proposal subject to review. No letter of intent is required for expedited projects as defined by rule by the department.

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

(c) Letters of intent shall describe the proposal with specificity, including proposed capital expenditures, number of beds sought, if any, services, specific subdistrict location, identification of the applicant, including the names of those with controlling interest in the applicant, and such other information as the department may by rule prescribe. The letter of intent shall contain a certified copy of a resolution by the board of directors of the applicant, or other governing authority if not a corporation, authorizing the filing of the application described in the letter of intent; authorizing the applicant to incur the expenditures necessary to accomplish the proposed project; certifying that if issued a certificate, the applicant shall accomplish the proposed project within the time allowed by law and at or below the costs contained in the application; and certifying that the applicant shall license and operate the facility.

(d) Within 14 days after filing a letter of intent, the applicant shall publish a notice of filing to be published in a newspaper of general circulation in the area affected by the proposal. The notice of filing shall be published once a week for 2 consecutive weeks on forms and in the format and content specified by the department by rule. Within 21 days after the filing, the department 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 subsection shall 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 and the Statewide 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 (b) 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 department. A copy of the request for hearing shall be served on the applicant.

(b) Hearings shall be held in Tallahassee unless the hearing officer determines that changing the location will facilitate the proceedings. In administrative proceedings challenging the issuance or denial of a certificate of need, only applicants considered by the department in the same batching cycle are entitled to a comparative hearing on their applications. Existing health care facilities may initiate or intervene in such administrative hearing upon a showing that an established program will be substantially affected by the issuance of a certificate of need to a competing proposed facility or program within the same district, provided that existing health care providers, other than the applicant, have no standing or right to initiate or intervene in an administrative hearing involving a health care project which is subject to certificate-of-need review solely on the basis of s. 408.036(1)(c). The department shall assign proceedings requiring hearings to the Division of Administrative Hearings of the Department of Management Services within 10 days after the time has run to request a hearing. Except upon unanimous consent of the parties or upon the granting by the hearing officer of a motion of continuance, hearings shall commence within 60 days after the hearing officer has been assigned. All non-state-agency parties 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 hearing officer shall complete and submit to the parties a recommended order as provided in s. 120.57(1)(b). 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) The department shall issue its final order within 45 days after receipt of the recommended order.

(d) If the department fails to take action within the time specified in paragraph (4)(a) or paragraph (5)(c), or as otherwise agreed to by the applicant and the department, the applicant may take appropriate legal action to compel the department to act. When making a determination on an application for a certificate of need, the department is specifically exempt from the time limitations provided in s. 120.60(2).

(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. Note. Former s. 381.709.