In re: Progressive Macedonia Real Estate, LLC, et al. Northfield Village Retirement Community, Ltd., et al. Appellants.
from the Ohio Department of Health (ODH File No. 9078-01-14A)
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.
Stettinius & Hollister, LLP, Patrick J. Krebs, and
Jennifer B. Orr, for appellants.
Patrick J. Krebs.
Deborah A. Enck.
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
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.
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 ...