93-001640 Agency For Health Care Administration vs. Park Imaging, Inc. Status: Closed Recommended Order on Wednesday, February 9, 1994.

Summary: Mobile ultra sound service req'd to pay PMATF assess; term facility in stat does mean only fixd site can be assessd; no basis for fine agnst mobile prov

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE, )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1640

)

PARK IMAGING, INC., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 22,

1993, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Robert Griffin, Esquire

Agency for Health Care Administration

Suite 301, The Atrium

325 John Knox Road

Tallahassee, Florida 320308-4131

For Respondent: Byron B. Mathews, Jr., Esquire

McDermott, Will & Emery

201 South Biscayne Boulevard, 22nd Floor

Miami, Florida 33131

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent, Park Imaging, Inc., was

obligated to file a report and pay an indigent care assessment pursuant to

Section 395.1015, Florida Statutes, (1991) and, if so, whether Respondent should

be fined or otherwise sanctioned for its failure to do so.

PRELIMINARY STATEMENT

In an Administrative Complaint dated February 22, 1993, the Agency For

Health Care Administration (the "Agency" or "AHCA"), charged Park Imaging, Inc.

("Park Imaging") with failing to file the report and pay the indigent care

assessment required by Section 395.7015, Florida Statutes (1992 Supp.). 1/

According to the Administrative Complaint, the report and assessment were for

the period from July 1, 1991 through December 31, 1991 and were due on or before

April 30, 1992. As a result of Park Imaging's alleged failure to comply with

the statutory requirements, the AHCA sought to impose an administrative fine in

the amount of $48,900 against Park Imaging. Park Imaging filed a Petition for

Formal Administrative Hearing disputing the allegations of the Administrative

Complaint. The case was referred to the Division of Administrative Hearings

which noticed and conducted the hearing.

The case was originally assigned to Hearing Officer Michael Parrish. The

case was transferred to the undersigned Hearing Officer who appeared at the time

and place scheduled for the hearing. On the day before the hearing was to

commence, Park Imaging filed a Motion To Quash regarding a subpoena duces tecum

that had been served on an employee of the company. The parties presented

argument regarding the Motion at the commencement of the hearing. The AHCA made

an ore tenus motion for a continuance based upon Park Imaging's failure to

comply with the subpoena. That motion was denied and the parties were directed

to proceed with the presentation of the evidence available. At the conclusion

of the hearing, a schedule was established for the AHCA to obtain access to the

documents sought in the subpoena and to supplement the record in this proceeding

if necessary. By letter dated July 22, 1993, the AHCA advised that it had no

further evidence to present. Consequently, the record in this proceeding was

closed.

At the hearing on June 22, 1993, Petitioner presented the testimony of two

witnesses: Dana Linn, who is employed by Park Imaging as its regional general

manager; and Fran Buie, the administrator of the Ambulatory Health Section of

the AHCA and formerly an economic analyst in the special studies section of the

AHCA. The AHCA had seven exhibits marked for identification. The AHCA's

Exhibits 1, 2 and 4 were copies of dictionary definitions of various terms.

Official recognition was taken of those dictionary definitions pursuant to

Section 120.61, Florida Statutes. Park Imaging's relevancy objection to Exhibit

3 was overruled. 2/ Park Imaging's relevancy objection to the AHCA's Exhibit 5,

which was a composite of correspondence, was also overruled. Park Imaging's

hearsay objections to this composite exhibit were noted and the documents were

considered in accordance with Section 120.58(1)(a), Florida Statutes.

Respondent recalled Mr. Linn to testify and also called Robert Sabo, a CPA

licensed in the State of Florida who was accepted as an expert in the financial

aspects of the regulation of healthcare interests. Park Imaging offered two

exhibits into evidence, both of which were accepted without objection.

During the hearing, a question arose as to which party was properly styled

as the Petitioner in this proceeding and which party had the burden of proof in

this action. Because the Agency filed an Administrative Complaint against Park

Imaging and sought to impose administrative sanctions against the company, the

undersigned advised the parties that the Agency would be designated as the

Petitioner. The Agency was directed to proceed first with the presentation of

its case, but ruling on the question of who had the burden of proof was reserved

in order to allow the parties an opportunity to submit legal argument. That

issue is addressed further in the Conclusions of Law below.

A transcript of the proceeding has been filed. Both parties have submitted

proposed findings of fact and conclusions of law. A ruling on each of the

party's proposed findings of fact is included in the Appendix attached to this

Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence presented at the final hearing

and the entire record in this proceeding, the following findings of fact are

made:

1. At all times pertinent to this proceeding, Park Imaging owned and

operated a fixed-site diagnostic imaging center in Coral Springs, Florida. Park

Imaging also owned and operated a mobile diagnostic service which is described

in more detail below.

2. Since 1984, hospitals in Florida have been required to pay an

assessment based on net operating revenue to the Public Medical Assistance Trust

Fund ("PMATF") for the funding of health care services to indigent persons. See

Chapter 84-35, Laws of Florida, codified at Section 395.101, Florida Statutes

(1989). Effective July 1, 1991, the statutory requirement to file a report with

the AHCA and pay the PMATF assessment was expanded to include certain

additional health care entities including "diagnostic imaging centers." See,

Section 177, Chapter 91-112, Laws of Florida, codified at Section 395.1015,

Florida Statutes (1991). For the health care entities that fell under the 1991

statute, the first reporting period began July 1, 1991 and ran through December

31, 1991. The report was due on or before March 31, 1992 and the assessment was

to be paid by April 30, 1992. Park Imaging filed the required report and paid

the applicable assessment for its fixed-site diagnostic imaging center. Park

Imaging did not file a report or pay any assessment regarding its mobile

diagnostic service.

3. Except for diagnostic imaging centers, all of the "health care

entities" that were required to file a report and pay an indigent care

assessment pursuant to Section 395.1015, Florida Statutes, are licensed or

registered by the State. Thus, there was no question as to the need for those

entities to comply with the statute. Diagnostic imaging centers, on the other

hand, are not licensed or registered and, consequently, there was less certainty

as to the types of providers or services that fell into this category.

4. Park Imaging has a separate medical care provider number for its mobile

operation. The AHCA has treated the two operations as separate entities and

sent Park Imaging separate reporting forms with different identifying numbers

for each of the operations.

5. Park Imaging's mobile operation consists of the transportation of

ultrasound equipment in vans to private physicians' offices. No services are

performed within the vans. The equipment is off-loaded from the van into the

physician's office. The physicians utilize the equipment for their patients.

All power necessary to operate the equipment is provided by the physician's

office. The equipment can be plugged into a standard electrical wall socket in

the physician's office.

6. During the period from July 1, 1991 to December 31, 1991, Park

Imaging's diagnostic operation provided ultrasound service primarily to cardiac

and obstetric patients. In all cases, a physician ordered the test and defined

the protocol to be followed during the test. Park Imaging provided technical

expertise, including an onsite employee of the company. Park Imaging's

technician provided the expertise necessary for running the equipment and

executed the protocol established by the physician. The physician was

responsible for interpretation of the test results and for managing the outcome

of the results of the test and communicating the results to the patient.

7. Section 395.1015, Florida Statutes (1991) defined "diagnostic imaging

centers" that were subject to the reporting and assessment requirements as

follows:

Diagnostic imaging centers that are free-

standing outpatient facilities that provide

specialized services for the identification

or determination of a disease through

examination and also provide sophisticated

radiological services such as computed

tomography scans and magnetic resonance

imaging, and in which services are rendered

by a physician licensed by the Board of

Medicine under Section 458.311, Section

458.313, or Section 458.327, or by an

osteopathic physician licensed by the Board

of Osteopathic Medical Examiners under

Section 459.006, Section 459.007, or Section

459.0075.

8. Park Imaging contends that its mobile operations do not have a

"facility" upon which an assessment can be levied under Section 395.1015,

Florida Statutes, (1991) (subsequently amended and renumbered as Section

395.7015).

9. Park Imaging also contends that its mobile operations did not provide

"sophisticated radiological services" as that term is used in Section 395.1015,

Florida Statutes. In this regard, Park Imaging argues that the equipment

utilized in the mobile operations was much less sophisticated than many of the

other types of services provided in a fixed setting.

10. The evidence established that Park Imaging's mobile operations

provided ultrasound services. There is no evidence that Park Imaging's mobile

operations provided computed tomography (CT) scans or magnetic resonance imaging

(MRI) or any other services other than ultrasound.

11. CT and MRI equipment could not be transported in a van or off-loaded

into a physician's office. CT and MRI equipment require special lead-wall

shielding in the structure in which they are used. The investment for CT and

MRI equipment is significantly higher than ultrasound as are the government

reimbursement rates.

12. Park Imaging's decision not to file the report and pay the assessment

on its mobile operations was based upon advice of legal counsel. Park Imaging

did not attempt to hid or conceal its decision from the AHCA. In several

letters to the AHCA in the fall of 1992, Park Imaging advised the AHCA that it

did not believe its mobile operations fell within the scope of the statute.

13. By letter dated September 29, 1992 from Carolyn Turner, who at the

time was the Administrator of the AHCA's Ambulatory Health Section, to Joseph

Burlandi, corporate counsel for Park Imaging, the AHCA notified Park Imaging

that it's mobile diagnostic operations were not exempt from the provisions of

Section 395.1015, Florida Statutes (1991) and that Park Imaging would be

considered delinquent from that time forward if the report was not filed and the

assessment was not paid. This position was subsequently reaffirmed in a letter

dated October 30, 1992 from Julia P. Forrester, senior attorney for the AHCA, to

Joseph Burlandi. In a letter dated November 23, 1992, the Agency once again

reaffirmed its position that Park Imaging 's mobile operations fell within the

scope of the statute None of these letters from the AHCA to Park Imaging were

sent by certified mail.

14. When Park Imaging continued to refuse to file the report and pay the

assessment on its mobile operations, the AHCA issued an Administrative Complaint

dated February 22, 1993 seeking to impose penalties against Park Imaging for

failure to comply with the requirements of what had subsequently been renumbered

as Section 395.7015, Florida Statutes, and Rule 59B-6, Florida Administrative

Code, for the reporting period July 1, 1991 through December 31, 1991.

15. At the hearing in this matter, Fran Buie, the current Administrator of

the AHCA's Ambulatory Health Section, testified that the AHCA has consistently

construed and applied Section 395.1015, Florida Statutes (1991) to mobile

facilities. She also testified that her review of the Agency's records confirms

that a number of mobile units have complied with the statutory requirements.

The evidence did not establish the types of services provided by these other

mobile operations.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes (1993).

17. The AHCA contends that Park Imaging was obligated to comply with the

provisions of Section 395.7015, Florida Statutes (1993). The AHCA has the

burden of proof on this issue. See, Balino v. Department of Health and

Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); Department of

Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786-789 (Fla. 1st DCA

1981); Southpointe Pharmacy v. Department of Health and Rehabilitative Services,

596 So. 2d 106, 109 (Fla. 1st DCA 1992.)

18. Section 395.1015, Florida Statutes (1991) became effective July 1,

1991. See, Section 177, Chapter 91-112, Laws of Florida. This statute imposed

an indigent care assessment of 1.5 per cent of net operating revenue on certain

"health care entities."

19. The reporting and assessment requirements of Section 395.1015, Florida

Statutes (1991) were applicable beginning with the period from July 1, 1991

through December 31, 1991. The assessment and report for this first reporting

period were due to the Agency no later than April 30, 1992. Section 395.1015,

Florida Statutes(1991) was the statute in effect during the reporting period

July 1, 1991 to December 31, 1991 and, thus, is the controlling statute for this

case. In 1992, Section 395.1015, Florida Statutes was amended and renumbered as

Section 395.7015, Florida Statutes (1992 Supp.)

20. "Health care entities" are defined in the statute to include: (1)

ambulatory surgical centers licensed under Section 395.003, Florida Statutes;

(2) clinical laboratories licensed under Section 483.091, Florida Statutes; (3)

free standing radiation therapy centers providing treatment through the use of

radiation therapy machines that were registered under Section 404.22 and Rules

10D-99.902, 10D-99.903 and 10D-99.904 of the Florida Administrative Code; and

(4) diagnostic imaging centers.

21. As noted in the Findings of Fact above, "diagnostic imaging centers"

are not specifically licensed or registered by the AHCA. The definition of

"diagnostic imaging centers" in Section 395.1015(2)(b)(4), Florida Statutes

(1991), covers "freestanding outpatient facilities."

22. On November 27, 1991, the AHCA published proposed Rule 10N-6 which was

intended to implement Section 395.1015, Florida Statutes (1991). See, Florida

Administrative Weekly, Vol. 17, No. 48, pp. 5664-5670. Apparently, as a result

of public comments to the proposed rule and rule challenges to various aspects

of the rule, the rule was not fully adopted until May of 1992. See Florida

Administrative Weekly, Vol. 18, No. 18, p. 2669, May 1, 1992. (Rule 10N-6,

Florida Administrative Code will be referred to in this Recommended Order as the

"Initial Rule.") The Initial Rule was subsequently transferred with amendments

to Rule 59B-6. (This rule will hereinafter be referred to as the "Current

Rule".) Rule 59B-6.009(2), provides:

(2) "freestanding" means that the healthcare

entity bills and receives revenue which is

not directly subject to the hospital PMATF

assessment described in Section 395.701, F.S.

"Freestanding" means that the healthcare

entity is not a department or other

subdivision of the hospital. 3/

In essence, the requirement that a diagnostic imaging center be "freestanding"

has been interpreted by the AHCA in both the Initial and Current Rule to simply

mean that it should not be part of a hospital.

23. Clearly, Park Imaging's mobile operation was "freestanding" within the

scope of this interpretation. Park Imaging argues, however, that its mobile

operations do not qualify as a "facility" within the meaning of Section

395.1015, Florida Statutes (1991). Essentially, Park Imaging contends that,

because the equipment is off-loaded to a physician's office and Park Imaging

does not utilize its vans or any particular building to provide the services,

there is no "facility" and consequently its mobile operations do not fall within

the scope of the statute. This interpretation of what constitutes a "facility"

is unduly restrictive.

24. The AHCA has interpreted the statute to mean that the reporting

requirements and assessments are applicable to the revenues generated by the

operation of the diagnostic equipment outside the hospital irrespective of

whether the equipment is located in a separate building or similar structure.

This interpretation by the agency charged with administering the statute is

reasonable and should be accepted. See, Department of Environmental Regulation

v. Goldring, 477 So. 2d 532 (Fla. 1985); Natelson v. Department of Insurance,

454 So. 2d 31 (1st DCA 1984) rev. den. 461 So. 2d 115 (Fla. 1985); Escambia

County vans Pac, 584 So. 2d 603 (Fla. 1st DCA 1991); National Federation of

Retired Persons v. Department of Insurance, 553 So. 2d 1289 (Fla. 1st DCA 1989).

25. The term "facility" is not defined in the statute or the rules. At

the hearing, two standard dictionary definitions of the term were offered. The

American Heritage Dictionary, Houghton Mifflin Company, 1982, defines facility

as ". . . something created to serve a particular function." Webster's New

Collegiate Dictionary, G. and C. Merriam Company, 1979, defines facility as

"something that promotes the ease of an action, operation or course of conduct--

usu. used in pl. . .

. something (as a hospital) that is built, installed, or established to serve a

particular purpose."

26. These standard definitions support the AHCA's contention that a

"facility" does not have to be a building or other structure. Park Imaging has

provided no reasonable explanation as to why the legislature would have intended

to regulate and assess diagnostic imaging activities that occur within a fixed

site or building while exempting the same activities when they are performed

through a mobile operation.

27. Park Imaging points out that the term "facility" as used in Section

395.1015, is qualified by the phrase, "in which." Park Imaging suggests that

the inclusion of this language manifests an intent that only those services

provided within the facility fall within the scope of the statute. However, in

considering the intent of the statute as a whole, it is clear that the

legislative intent was to impose the assessment on certain types of

sophisticated radiological services being conducted outside of a hospital. The

intent was not to distinguish between those services performed in a fixed office

building as opposed to mobile services. To read the statute in the

hypertechnical way proposed by Park Imaging would create a loophole that was

clearly not contemplated in the drafting of the statute. See, Palm Springs

Hospital v. State Farm Insurance Company, 218 So. 2d 793, 797 (Fla. 3rd DCA

1969) aff'd 232 So. 2d 737 (Fla. 1970).

28. To qualify as a "diagnostic imaging center" for purposes of Section

395.1015, Florida Statutes (1991), the services must be "rendered" by a

physician. The evidence in this case established that all of the services

provided by Park Imaging's mobile operations were ordered by a physician who

defined the protocol to be followed and interpreted the results. Even though an

employee of Park Imaging may have been responsible for operating the equipment,

the services were still "rendered" by a physician within the scope of the

statute.

29. Park Imaging also contends that its mobile operations did not provide

"sophisticated radiological services" as required by Section 395.1015, Florida

Statutes. The examples of sophisticated radiological services contained within

the statute include computed tomography scans and magnetic resonance imaging.

It is clear from the wording of the statute that these examples were not

intended to be exclusive. From the outset, the AHCA has interpreted

"sophisticated radiological services" to include ultrasound. The Initial Rule

stated:

"Sophisticated radiological services" include

but are not limited to magnetic resonance

imaging, mammography, ultrasound, nuclear

medicine, intravenous pyleogram, angiography,

arteriography, tomography, computed

tomography, . . ."

See, Rule 10N-6.009(24).

30. Park Imaging's suggestion that ultrasound is less sophisticated than

CT scans or MRI is irrelevant. From the time the statute was enacted, it

appears that the AHCA has consistently interpreted "sophisticated radiological

services" to include ultrasound. There is no evidence that the proposed agency

definition in Rule 10N-6.009(24) was challenged when it was proposed or at any

time after it became effective.

31. As noted above, in 1992 the legislature amended Section 395.1015,

Florida Statutes. 4/ The amended statute was renumbered as Section 395.7015,

Florida Statutes (1992 Supp.). The amended statute incorporated the AHCA

interpretation that "sophisticated radiological services" includes ultrasound.

There is an exemption in the amended statute for ultrasound services provided as

a part of a private physician's office practice or as part of a group practice.

5/ See, Section 395.7015(2)(b)4, Florida Statutes (1992 Supp.) and Section

408.07(21), Florida Statutes (1992 Supp.) While Park Imaging suggests that its

mobile operations may fall under this exemption, this new exemption did not

become effective until October 1, 1992. Moreover, the exemption does not apply

to equipment owned by a company other than the physician or physician's group

providing the services.

32. In sum, the AHCA has properly deemed Park Imaging's mobile diagnostic

operations to fall within the scope of Section 395.1015, Florida Statutes

(1991). Consequently, Park Imaging is required to file the applicable report

and pay the PMATF assessment.

33. In the Administrative Complaint, the AHCA sought to impose an

administrative fine of $48,900 on Park Imaging as a result of its failure to

file the report and pay the assessment when due. The fine was calculated for

the period from May 1, 1992 through March 22, 1993.

34. As authority for the imposition of the fine, the Administrative

Complaint cites Section 395.701(3), Florida Statutes (1992 Supp.), and Rule 59B-

6.023 and Rule 59B-6.024, Florida Administrative Code. Section 395.701(3),

Florida Statutes (1992 Supp.) (formerly Section 395.101, Florida Statutes, and

renumbered pursuant to Section 51, Chapter 92-289, Laws of Florida) is only

applicable to hospitals that fail to pay assessments. As set forth in Section

395.701(1)(c), Florida Statutes, (1992 Supp.) a hospital is defined in Section

395.002(12), Florida Statutes. That definition covers only inpatient

establishments. Thus, this statute is not specifically applicable to the other

health care entities covered by Section 395.1015, Florida Statutes (1991), and

cannot serve as authority for the imposition of a fine in this case.

35. The amendment and renumbering of the applicable statutes and rules

creates a great deal of confusion regarding the statutory and rule provisions

that govern this proceeding, especially with respect to the imposition of a

fine. Unfortunately, neither party has satisfactorily traced the statutory and

rule changes.

36. In view of the confusing legislative changes, there is some question

as to whether the AHCA has the authority to impose an administrative fine

against a health care entity other than a hospital. Section 395.1015(5),

Florida Statutes (1991), authorized the AHCA to use the authority granted in

Sections 407.02, 407.06 and 407.07, Florida Statutes, to administer the PMATF

assessment program. However, those statutory provisions were repealed effective

July 1, 1992. See, Section 82, Chapter 92-33, Laws of Florida. Neither party

has cited to any other provisions in the current or former law which clearly

authorize the AHCA to impose an administrative fine on a health care entity such

as Park Imaging for failure to comply with the PMATF reporting and assessment

requirements. Even though it was not cited in the Administrative Complaint,

Section 395.7015(5), Florida Statutes (1992 Supp.) authorized the AHCA to use

its authority under Chapter 408, Florida Statutes, to administer the PMATF

assessment program. Arguably, this authorization enables the AHCA to impose a

fine pursuant to Section 408.08, Florida Statutes (1992 Supp.).

37 . When the AHCA submitted proposed rule 10N-6 on November 27, 1991,

provisions were included regarding penalties for failure to file the PMATF

assessment and/or for failure to file the applicable report. As a result of

public hearing and a rule challenge which led to certain amendments that are not

pertinent to this proceeding, Proposed Rules 10N-6.023 and 10N-6.024, did not

become effective until May 6, 1992 which was after the due date for the report

and assessment for the first reporting period. The Initial Rule provided for a

fine not to exceed $1,000 per day for any health care entity which refused to

file, failed to timely file, or filed false or incomplete reports. See, Rule

10N-6.023(1). After the 1992 legislative changes which resulted in Section

395.7015, Florida Statutes (1992 Supp.), provisions of the Initial Rule were

amended and transferred to Rules 59B-6.023 and 59B-6.024. The provision for a

$1,000 a day fine was deleted in November of 1992 when Rule 10N-6 was

transferred to Rule 59B-6. Both the Initial and Current Rules provide for a

fine not to exceed $50 per day for the first violation when a health care entity

was delinquent in filing a report. Both rules also provide for a fine not to

exceed $100 per day for the delinquent payment of an assessment. These are the

provisions that the AHCA is apparently relying upon in calculating the fine in

this case.

38. Both the Initial and Current Rules call for the AHCA to send

delinquent report notices and/or payment deficiency notices by certified mail to

the chief executive officer of any health care entity which fails to timely file

the PMATF report and/or pay the applicable assessment. The delinquent report

notices and payment deficiency notices are supposed to include a notification

that the matter will be turned over to legal counsel if the report and/or

assessment are not received within ten working days from the date of receipt of

the certified notice. The rules provide that the penalty period begins the

first working day after the due date of the report and assessment. No certified

notices were sent in this case. While the parties exchanged correspondence from

September 4, 1992 through November 23, 1992 regarding Park Imaging's obligations

under the statute, the AHCA never sent a certified notice as contemplated by the

rules. Park Imaging contends that the failure to send a certified notice as set

forth in Rule 10N-6.023(5), which has been renumbered as 59B-6.023(4), and Rule

10N-6.024(2), which has been renumbered as 59B-6.024(2), precludes the

imposition of any fine in this case.

39. Arguably, compliance with the certified notice provisions of the rules

is not a precondition to the imposition of a fine. On the other hand, a health

care provider should be provided with a clear point of entry to challenge an

assessment before a fine is imposed. In any event, these issues need not be

resolved herein. After considering all of the facts in this case, it is

concluded that the imposition of a fine is not appropriate.

40. The statutory and rule provisions involved in this case set a maximum

on the amount of the fine that can be assessed per day. However, neither the

statutes nor the rules require the full amount of the fine to be levied. The

factors to be considered in determining the amount of a fine are not delineated

in the statute or rules. In determining whether to impose a fine and the amount

of the fine, it is important to consider all of the facts involved.

41. As noted in the Findings of Fact, "diagnostic imaging centers" are not

specifically licensed by the State and, consequently, a healthcare provider does

not automatically know whether it falls within this category. Until the 1992

statutory amendment, ultrasound was not specifically mentioned in the statute.

While the AHCA has consistently contended that ultrasound qualifies as a

"sophisticated radiological service" within the scope of the statute, a rule

specifically delineating this interpretation was not proposed until November of

1991 and did not become effective until May of 1992 (which was after the due

date for the reporting period in question). Moreover, neither the statute nor

the rule clearly cover mobile operations such as Park Imaging's. While the AHCA

has interpreted the term "facility" to cover mobile operations, this

interpretation has never been enacted in a rule and is not necessarily obvious

from the face of the statute.

42. There is no evidence that Park Imaging knew the AHCA was interpreting

the statute to cover mobile operations until September of 1992. Park Imaging

never attempted to disguise its operations or mislead the Agency. The

interpretation offered by Park Imaging is not unreasonable, even though it is at

odds with the equally acceptable interpretation offered by the Agency.

43. After considering all the factors in this case, it is concluded that

Park Imaging's mobile operations fall within the scope of Section 395.1015,

Florida Statutes, (1991) as reasonably interpreted by the AHCA and,

consequently, Park Imaging is required to file the appropriate report and pay

the applicable assessment. However, no fine should be imposed upon Park Imaging

for awaiting an impartial determination as to the applicability of the statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Agency for Healthcare Administration enter a final

order requiring Respondent, Park Imaging, Inc. to comply with the provisions of

Section 395.1015, Florida Statutes (1991) and establishing a due date for the

report and assessment after which a fine should be assessed in accordance with

the applicable statute and rules.

DONE and ENTERED this 9th day of February 1994, at Tallahassee, Leon

County, Florida.

___________________________________

J. STEPHEN MENTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of February 1994.

ENDNOTES

1/ As discussed in more detail below, the applicable statute for purposes of

this proceeding is Section 395.1015, Florida Statutes (1991). This statute was

amended and transferred in 1992 and became Section 395.7015, Florida Statutes

(1992 Supp.)

2/ Petitioner's Exhibit 3 was a copy of a memorandum sent to the chief

executive officers of certain healthcare entities by the AHCA regarding proposed

Rule 10N-6. At the hearing, there was some confusion as to whether or not that

rule was ever adopted. According to the records provided by Petitioner with its

Proposed Recommended Order, proposed Rule 10N-6 was initially filed on November

27, 1991. A public hearing was held regarding the rule and a rule challenge was

also filed. Ultimately, the proposed rule was amended in certain respects that

are not pertinent to this proceeding and the rule was adopted on May 7, 1992.

As discussed in more detail below, Rule 10N-6 was subsequently amended and

transferred to Rule 59B-6, Florida Administrative Code, effective November 16,

1992.

3/ The last sentence of this rule was added on November 25, 1992 upon the

transfer of the initial Rule 10N-6 to the current Rule 59B-6. See, Florida

Administrative Weekly, Vol. 18, No. 28, November 25, 1992, pp. 5664-5670.

4/ The 1992 amendment was not retroactive and became effective on October 1,

1992. See, Section 102, Chapter 92-289, Laws of Florida.

5/ In view of the statutory amendments which clarified when ultrasound was

covered under the statute, the definition of "sophisticated radiological

services" contained in Rule 10N-6.009(24), was deleted when the rules were

transferred to Rule 59B-6. See, Florida Administrative Weekly, Vol. 18, No. 48,

p. 7306, November 25, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1640

Both parties have submitted Proposed Recommended Orders. The following

constitutes my rulings on the proposed findings of fact submitted by the

parties.

Petitioner's Proposed Findings of Fact.

1. Addressed in the Conclusions of Law.

2. Addressed in the Conclusions of Law.

3. Addressed in the Conclusions of Law.

4. Adopted in substance in Findings of Fact 1 and 2.

5. Adopted in substance in Findings of Fact 12.

6. Adopted in the Preliminary Statement and in

Findings of Fact 13.

7. Adopted in substance in Findings of Fact 1, 3 and 4.

8. Adopted in substance in Findings of Fact 14.

Respondent's Proposed Findings of Fact.

1. Addressed in the Preliminary Statement and in the

Conclusions of Law.

2. Adopted in substance in Findings of Fact 2 and in

the Conclusions of Law.

3. Adopted in substance in Findings of Fact 2, 5, 6,

7, and 9.

4. Adopted in substance in Findings of Fact 6.

5. Adopted in substance in Findings of Fact 7.

6. Rejected as argumentative. This subject matter is

addressed in Findings of Fact 5 and 9 and in the

Conclusions of Law.

7. Addressed in the Conclusions of Law.

8. Addressed in the Conclusions of Law.

9. Rejected as constituting argument.

10. Adopted in substance in Findings of Fact 1 and 2.

11. Adopted in substance in Findings of Fact 2.

12. Adopted in substance in Findings of Fact 4.

13. Adopted in substance in Findings of Fact 4.

14. Adopted in substance in Findings of Fact 4.

15. Adopted in substance in Findings of Fact 4.

16. Rejected as constituting argument.

17. Rejected as unnecessary.

18. Subordinate to Findings of Fact 10 and 11.

19. Subordinate to Findings of Fact 9 through 11.

20. Rejected as constituting argument and subordinate

to the conclusions reached herein.

21. Adopted in substance in Findings of Fact 12 and 13.

22. Adopted in substance in the Preliminary Statement.

23. Addressed in the Conclusions of Law.

24. Addressed in the Conclusions of Law.

25. Addressed in the Conclusions of Law.

26. Addressed in the Conclusions of Law.

27. Addressed in the Conclusions of Law.

COPIES FURNISHED:

J. Robert Griffin, Esquire

Agency for Health Care Administration

Suite 301, The Atrium

325 John Knox Road

Tallahassee, Florida 32308-4131

Byron B. Mathews, Jr., Esquire

McDermott, Will & Emery

201 South Biscayne Boulevard, 22nd Floor

Miami, Florida 33131

Douglas M. Cook, Director

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Harold D. Lewis, Esquire

The Atrium, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

Sam Power, Clerk

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Petitioner,

CASE NO.: 93-1640

vs. RENDITION NO.: AHCA-94-61-FOF-HCB

PARK IMAGING, INC.,

Respondent.

_____________________________/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency

order. The Hearing Officer assigned by the Division of Administrative Hearings

(DOAH) in the above-styled case submitted a Recommended Order to the Agency for

Health Care Administration (AHCA). The Recommended Order entered February 9,

1994, by Hearing Officer J. Stephen Menton is incorporated by reference.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact

set forth in the Recommended Order.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of

law set forth in the Recommended Order. The parties agreement to allow payment

of the PMATF by installment payments as stated in Mr. Coleman's letter of March

10, 1994, is adopted and incorporated by reference.

Based upon the foregoing, Park Imagining Incorporated shall pay the PMATF

assessment in nine equal installment payments. The first payment is due no

later than 30 days after the date of rendition of this Final Order.

DONE and ORDERED this 4th day of April, 1994, in Tallahassee, Florida.

______________________________

Douglas M. Cook, Director

Agency for Health Care

Administration

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL

REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH

THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED

BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE

AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS

SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE

OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

J. Robert Griffin, Esquire

Senior Attorney, Agency for

Health Care Administration

325 John Knox Road

Atrium Building, Suite 301

Tallahassee, FL 32303-4131

Byron B. Mathews, Jr., Esquire

McDERMOTT, WILL & EMERY

201 South Biscayne Boulevard

Suite 2200

Miami, FL 33131

J. Stephen Menton

Hearing Officer

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished to the above named addresses by U.S. Mail this 6th day of April, 1994.

______________________________

R. S. Power, Agency Clerk

State of Florida, Agency for

Health Care Administration

325 John Knox Road

The Atrium Building, Suite 301

Tallahassee, FL 32303

[phone]

March 10, 1994

VIA FACSIMILE

J. Robert Griffin, Esquire

Senior Attorney

Agency for Health Care Administration

325 John Knox Road

Suite 301, The Atrium

Tallahassee, FL 32303-4131

Re: Park Imaging, Inc. vs. State of Florida Agency for

Health Care Administration - Case No 93-1640

Our File No 23922-018

Dear Bob:

In accordance with our telephone conversation today, please let this letter

serve as our agreement to the above-referenced matter as follows:

1. No exceptions to the Recommended Order issued in DOAH Case No. 93-1640

would be filed by either party;

2. A Final Order adopting the Recommended Order and incorporating this

agreement by reference would be entered expeditiously;

3. Park Imaging, Inc. would have nine (9) months in which to pay

assessments for the periods July 1, 1991 through December 31, 1991; January 1,

1992 through December 31, 1992; and January 1, 1993 through December 31, 1993;

4. Payments shall be in an amount equal to one ninth (1/9) of the total

assessments for all periods indicated in item 3 above, and each monthly payment

shall be made on or before the tenth (10th) day of each month beginning on April

10, 1994 and ending on December 10, 1994.

5. If Park Imaging, Inc. fails to make any payment timely, all such

assesments become immediately due and Park Imaging Inc. waives all rights to

contest enforcement collection; and

6. The Agency for Health Care Administration waives the right to impose or

collect fines or penalties on Park Imaging, Inc. for failure to timely file any

report or pay any assessment, up to and including the date of the agreement.

If this offer or settlement meets with your approval, please sign on the

place where indicated.

Sincerely,

Ira J. Coleman

IJC: la

cc: Dana Linn

Byron B. Mathews, Jr., Esq.

AGREED TO AND ACCEPTED:

The Agency for Health Care Administration

By: _________________________3/11/94____

J. Robert Griffin, Esq.