10-010313RX Plantation Nursing And Rehabilitation Center vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Tuesday, December 14, 2010.

Summary: Challenged rule exceeds the Agency's specific grant of rulemaking authority and modifies or contravenes the specific law implemented.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLANTATION NURSING AND )

REHABILITATION CENTER, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10313RX

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

SUMMARY FINAL ORDER

PRELIMINARY STATEMENT

Petitioner, Plantation Nursing and Rehabilitation Center

(Plantation), filed a Petition for Determination of Invalidity

of Existing Rule. In its Petition, Plantation alleges that

Florida Administra tive Code Rule 59A - 4.1295(7)(e) is an invalid

exercise of delegated legislative authority as defined in

Section 120.52(8)(b) , (c) , and (e), Florida Statutes.

Specifically, Plantation alleges that AHCA exceeded its grant of

rulemaking authority in adopting th e challenged rule; that the

rule enlarges, modifies, or contravenes the specific provisions

of law implemented ; and that the challenged rule is arbitrary

and capricious.

On December 1, 2010, Respondent, the Agency for Health Care

Administration (the A gency or AHCA) , filed a Response to

Petition for Determination of Invalidity of Existing Rule. Its

Response reads in pertinent part:

1. The Agency agrees that Petitioner is

substantially affected by the Rule at issue

and therefore has standing to seek an

administrative determination of the

invalidity of the Rule at issue.

2. The Agency concurs with Petitioner that

there is no statutory authority for Rule

59A - 4.1295(7)(e), Florida Administrative

Code, which caps the number of pediatric

residents that c an reside in a licensed

skilled nursing facility.

3. As such, the Agency has no objection to

an order being entered finding that Rule

59A - 4.1295(7)(e), Florida Administrative

Code, is without statutory authority, and as

such, is an invalid rule.

4. However, the Agency does object to being

assessed attorney fees and costs in this

matter, as the Agency has at all times acted

with justification and in good faith, as has

been demonstrated by the Agency's attempt to

repeal this rule through the rulemaking

process. 1/

On December 2, 2010, a Petition for Leave to Intervene was

filed by Broward Children's Center, Inc. (Broward). On

December 2, 2010, Plantation filed a Motion to Dismiss the

Petition to Intervene. Plantation also filed a Motion for

Summary Final Order. On December 3, 2010, AHCA fi l e d a Motion

to Dismiss Petition for Leave to Intervene. On December 9,

2010, Broward filed a Response to Motions to Dismiss Petition

for Leave to Intervene. On December 13, 2010, Broward filed a

Response to Motion for Final Summary Order.

DISCUSSION

This case is in an unusual, if not unique, procedural

posture. That is, the Agency agrees with Petitioner that the

challenged Rule is invalid, and asserts that it has been trying

to repea l this Rule. Broward seeks to intervene into this case

to defend the validity of the Rule. However, it finds itself

with no party with which to align, as neither party believes the

Rule is valid.

Plantation's Motion for Summary Final Order was filed

pu rsuant to Florida Administrative Code Rule 28 - 106.204(4).

Based upon the Agency's response to the Petition , it is

concluded that the Agency does not dispute any material fact

alleged in the Petition and, therefore no findings of material

fact are necessar y.

In its Petition for Determination of Invalidity of Existing

Rule, Plantation describes itself as a licensed nursing home

which, in addition to providing traditional geriatric services,

provides a pediatric program. Plantation desires to expand thi s

program but is prohibited from doing so because of the

limitations contained in the challenged Rule. Plantation is

substantially affected by the challenged Rule and has standing

to seek a determination of the invalidity of the Rule.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.56(1)(3), and 120.57(1)(h),

Florida Statutes.

2. The language of the Rule which is the subject of this

chall enge reads in pertinent part:

59A - 4.1295 Additional Standards for Homes

That Admit Children 0 Through 20 Years of

Age

* * *

(7) For those nursing facilities who admit

children age 0 through 15 years of age the

following stand ards apply in addition to

those above and throughout Chapter 59A - 4,

F.A.C.

* * *

(e) The facility shall be equipped and

staffed to accommodate no more than sixty

(60) children at any given time, of which

there shall be no more tha n 40 children of

ages 0 through 15 at any given time, nor

more than 40 children of ages 16 through 20

at any given time.

3. The challenged Rule, which was adopted in 1997, cites

Section 400.23(4), Florida Statutes, as the law implemented. 2/

Subsection 400.23(5), Florida Statutes (2010), reads as follows:

(5) The agency, in collaboration with the

Division of Children's Medical Services of

the Department of Health, must, no later

than December 31, 1993, adopt rules for

minimum standards of ca re for persons under

21 years of age who reside in nursing home

facilities. The rules must include a

methodology for reviewing a nursing home

facility under ss.408.031 - 408.045 which

serves only persons under 21 years of age.

A facility may be exempt from these

standards for specific persons between 18

and 21 years of age, if the person's

physician agrees that minimum standards of

care based on a ge are not necessary.

4. In its Motion for Summary Final Order, Plantation

alleges that, pursuant to Section 120.52(8)(b) and (c), Florida

Statutes, Rule 59A - 4.1295(7)(e) is an invalid exercise of

delegated legislative authority in that the Agency has exceeded

its grant of rulemaking authority and that the rule enlarges,

modifies, or contravenes the specific pro visions of law

implemented. 3/ The Agency simply asserts that there is no

statutory authority for the challenged Rule. Petitioner

asserts, and the undersigned agrees, that the Agency's

interpretation of the statutes and rules that it is charged with

imple menting is entitled to great deference. Cone v. State ,

Dept. of Health , 886 So. 2d 1007, 1009 (Fla. 1st DCA 2004).

5. The statutory citation contains no language setting

forth a maximum number of pediatric residents that can be

treated in any particular facility. The challenged rule does

not address nursing homes that serve only persons under 21 years

of age, but sets an occupancy limit for nursing homes with a

licensed bed capacity of greater than 60 beds from being

permitted to serve only persons under 21 years of age. It is

concluded that Florida Administrative Code Rule 59A - 4.1295(7)(e)

constitutes an invalid exercis e of delegated legislative

authority in that it exceeds the Agency's specific grant of

rulemaking authority and modifies or contravenes the specific

law implemented.

Intervention

6. Broward, which seeks to intervene in this proceeding,

describes itself as, through its affiliate, Children's

Comprehensive Care Center, a free standing skilled nursing

facility for children which provides 24 - hour nursing/respiratory

care and developmentally appropriate educational training.

Broward asserts that it has standi ng to intervene into this rule

challenge proceeding:

Plantation's facility is located

approximately 13 miles from the Broward

Children's Center facility. [Broward] will

be immediately and substantially affected if

Plantation's challenge is successful.

B oth Petitioner and Respondent have moved to dismiss Broward's

Petition for Leave to Intervene asserting that Broward lacks

standing.

7. A fundamental characteristic of intervention is that it

is subordinate to and in recognition of the propriety of the

m ain proceeding. See East County Water Control District v. Lee

County , 884 So. 2d 93 (Fla. 2nd DCA 2004); Hoechst Celanese

Corp. v. Fry , 693 So. 2d 1003 (Fla. 3d DCA 1997); Fla. R. Civ.

P. 1.230. In the main proceeding, neither party defends the

validity of the existing rule. Broward states in its Response

to Motion for Summary Final Order that it "seeks to intervene in

this case to defend AHCA's existing rule." If granted

intervention, Broward would be elevated to a status of a

principal party, and woul d not be aligned with either party of

the main proceeding. See Humana of Florida, Inc. v. Department

of Health and R ehabilitative Services , 500 So. 2d 186 (Fla. 1st

DCA 1986). Accordingly, intervention in this instance is not

appropriate.

Based upo n the above, it is

ORDERED:

1. Petitioner's and the Agency's Motion s for Summary Final

Order are granted.

2. Broward Children's Center, Inc.'s Petition for Leave to

Intervene is denied.

3. Based upon Petitioner's representation, Petitioner's

r equest for attorney's fees and costs has been waived, in view

of the disposition by Summary Final Order .

4 . The hearing scheduled for December 22, 2010 , is

canceled.

DONE AND ORDERED this 14th day of December , 20 1 0, in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 2010.

ENDNOTES

1/ In its Motion for Summary Final Order, Plantation represents

that it is willing to waive its request for attorney's fees and

costs against the Agency in the event that its Motion is granted

and the rule is declared to be an invalid exercise of delegated

le gislative authority.

2/ Since the time the Rule was adopted, the subsection was

renumbered to its current subsection (5) in 1999. However, the

Rule citation was not revised to be consistent with the

renumbered statute.

3/ The Motion for Summary Fina l Order does not include the

argument that the challenged rule is arbitrary or capricious as

alleged in the Petition to Determine Invalidity of Rule.

COPIES FURNISHED:

Peter A. Lewis, Esquire

Law Offices of Peter A. Lewis, P.L.

3023 North Shannon Lakes Drive, Suite 101

Tallahassee, Florida 32309

Lorraine M. Novak, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Stop 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Kevin J. ODonnell, Esquire

1695 Metropolitan Circle, Suite 2

Tallahassee, Florida 32308

Liz Cloud, Program Director

Administrative Code

Department of State

R. A. Gray Building, Room 101

Tallahassee, Florida 32399

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the o riginal Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate Dis trict where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.