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In re Progressive Macedonia Real Estate, LLC

Court of Appeals of Ohio, Tenth District

October 31, 2017

In re: Progressive Macedonia Real Estate, LLC, et al. Northfield Village Retirement Community, Ltd., et al. Appellants.

         APPEAL from the Ohio Department of Health (ODH File No. 9078-01-14A)

         On brief:

          Rolf Goffman Martin Lang, LLP, and Ira S. Goffman, for appellee.

          Michael DeWine, Attorney General, James T. Wakley, and Deborah A. Enck, for Ohio Department of Health.

          Taft Stettinius & Hollister, LLP, Patrick J. Krebs, and Jennifer B. Orr, for appellants.

         Argued:

          Ira S. Goffman.

          Patrick J. Krebs.

          Deborah A. Enck.

          DECISION

          BRUNNER, J.

         {¶ 1} Appellants, Northfield Village Retirement Community, Ltd. and Northfield Village Realty I, Ltd. (collectively "Northfield Village"), pursuant to R.C. 3702.60, appeal from the January 6, 2016 adjudication order of the director of the Ohio Department of Health ("director" or "ODH" as appropriate) which granted appellee Progressive Macedonia Real Estate, LLC's ("Progressive") certificate of need ("CON") application for the development of a new 98-bed nursing home in Macedonia, Ohio. Because the order is supported by reliable, probative, and substantial evidence and is in accordance with law, we affirm the order.

          I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On September 2, 2014, Progressive filed a CON application with ODH to develop a new 98-bed long-term facility in Macedonia, Summit County, Ohio. Progressive's proposal was to relocate 98 long-term beds from University Park Nursing & Rehabilitation Center ("University Park") in Akron, Summit County, citing University Park to be "a very old, three-story inter [sic] city building that was originally constructed in the 1950s to the standards and codes of a different time to serve a different population than is now available in the area of the building and the healthcare marketplace." (Joint Ex. 1 at 29.) The parties stipulated that the physical condition of University Park is poor and it needs to be replaced.

         {¶ 3} On September 25, 2014, ODH directed a first set of questions to Progressive seeking additional information. Progressive responded on November 3, 2014. On November 26, 2014, ODH directed a second set of questions, which Progressive answered on January 16, 2015. On February 4, 2015, ODH declared the CON application complete. On April 1, 2015, the ODH director issued a decision approving the CON application.

         {¶ 4} On April 10, 2015, Northfield Village Realty I, Ltd., a limited liability real estate company and Northfield Village Retirement Community, Ltd., an existing healthcare facility approximately two and one-half miles from the proposed Macedonia project, requested an administrative hearing to contest the approval of the Progressive CON application. Northfield Village argued that the approval of Progressive's CON application was not in accordance with guidelines in R.C. Chapter 3702 and contravenes the administrative rules in Ohio Adm.Code 3701-12.

         {¶ 5} The matter was referred to an ODH hearing examiner. After a hearing and post-hearing briefs, the hearing examiner prepared a report and recommendation recommending approval of the CON application. Northfield Village filed objections. On January 6, 2016, the director issued an adjudication order adopting the hearing examiner's recommendation and specifically his findings of fact 1-21 and conclusions of law 1-12.

         II. ASSIGNMENTS OF ERROR

         {¶ 6} Northfield Village filed a timely notice of appeal and has set forth the following assignments of error for our review:

[1.] The Adjudication Order is not in accordance with the law and should be reversed because the CON is void pursuant ...

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