10-002657RU My Friend Home Care, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Tuesday, July 6, 2010.

Summary: Agency application of plain language of statute does not constitute a rule, and Petition for Determination of Invalidity of Non-Rule Policy is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MY FRIEND HOME CARE, INC., )

)

Petitioner, )

)

vs. ) Case No. 10-2657RU

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

_________________________________)

SUMMARY FINAL ORDER

On May 19, 2010, the Respondent filed a Motion for Summary

Final Order pursuant to Section 120.57(1)(h), Florida Statutes

(2009). After having been granted several extensions of time,

the Petitioner filed its response in opposition to the motion on

June 30, 2010.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

For Respondent: Richard Joseph Saliba, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3,

Mail Station 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether the Respondent's decision to deny the Petitioner's

application for a renewal license for a home health agency on

the basis of Section 400.471(10), Florida Statutes (2009), 1

constitutes an agency statement of general applicability that

has not been adopted as a rule pursuant to Section 120.54,

Florida Statutes, and, therefore, violates Section 120.54(1)(a),

Florida Statutes.

PRELIMINARY STATEMENT

On May 10, 2010, My Friend Home Care, Inc., filed a

Petition for Determination of Invalidity of Non-Rule Policy. In

the Petition, My Friend Home Care asserted that the Agency for

Health Care Administration ("AHCA") applied a non-rule policy

when it announced in a Notice of Intent to Deny that it had

preliminarily decided to deny My Friend Home Care's application

for a renewal license as a home health agency pursuant to

Section 400.471(10), Florida Statutes (2009). My Friend Home

Care alleged:

AHCA's decision to deny My Friend's

licensure renewal application on the basis

of §400.471(10), Fla. Stat., represents a

non-rule policy, because it is a rule as

defined by §120.52(16), Fla. Stat. to

retroactively apply a new law, §400.471(10),

Fla. Stat. which by its terms, became

effective July 1, 2009.

AHCA responded to the Petition by filing its Motion for Summary

Final Order. Having reviewed the Petition, AHCA's motion, and

My Friend Home Care's response in opposition to the motion, it

has been determined that there are no disputed issues of

material fact, and this matter is decided on the written

submissions of the parties.

FINDINGS OF FACT

Based on the entire record of this proceeding, the

following facts are undisputed and found to be true:

1. My Friend Home Care submitted its application to renew

its home health license on or about November 7, 2009.

2. On January 11, 2010, AHCA issued a Notice of Intent to

Deny My Friend Home Care's application for a renewal license

pursuant to Section 400.471(10)(d), Florida Statutes, which

became effective on July 1, 2009.

3. Section 400.471(10), Florida Statutes, provides in

pertinent part:

The agency may not issue a renewal license

for a home health agency in any county

having at least one licensed home health

agency and that has more than one home

health agency per 5,000 persons, as

indicated by the most recent population

estimates published by the Legislature's

Office of Economic and Demographic Research,

if the applicant or any controlling interest

has been administratively sanctioned by the

agency during the 2 years prior to the

submission of the licensure renewal

application for one or more of the following

acts:

* * *

(d) Failing to provide at least one service

directly to a patient for a period of

60 days.

4. On May 13, 2009, a Final Order was entered by AHCA

finding that My Friend Home Care failed ensure that at least one

service was directly provided to a patient in a 60-day period.

An administrative fine of $1,000.00 was assessed against My

Friend Home Care, which paid the fine.

5. My Friend Home Care operates a home health agency in

Miami, Florida, and is subject to the provisions of

Section 400.471, Florida Statutes.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.56, 120.569 and

120.57(1), Florida Statutes.

7. A "rule" is defined in Section 120.52(16), Florida

Statutes, as follows:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

8. The plain language of Section 400.471(10), Florida

Statutes, prohibits AHCA from issuing a renewal license to any

home health agency that falls within the demographic criteria

set forth in the statute and that "has been administratively

sanctioned by the agency during the 2 years prior to the

submission of the licensure renewal application." The

legislature, thus, clearly expressed its intent in

Section 400.471(10), Florida Statutes, that the prohibition on

the renewal of home health licenses apply to conduct that

occurred before the enactment of the statute. 2

9. Consequently, when AHCA denies an application for a

renewal license to a home health agency based on conduct

occurring during the two years prior to submission of the

application, it is basing its action on a requirement

specifically included in Section 400.471(10), Florida Statutes.

AHCA is not "implement[ing], interpret[ing], or prescrib[ing]

law or policy" by adding to or modifying the plain requirements

of the statute. § 120.52(16), Fla. Stat. It is axiomatic that

an agency's interpretation of a statute that gives the statute a

meaning readily apparent from its literal reading and does not

purport to create rights, require compliance, or otherwise have

the direct and consistent effect of law is not a rule. Cf. e.g.

Beverly Enterprises-Florida, Inc. v. Department of Health , 573

So. 2d 19, 20 (Fla. 1st DCA 1990); St. Francis Hospital v.

Department of Health & Rehabilitative Services , 553 So. 2d 1351,

1354 (Fla. 1st DCA 1989); Department of Transp. v. Blackhawk

Quarry Co. , 528 So. 2d 447, 449 (Fla. 5th DCA 1988). AHCA's

application of the clear and unambiguous language of

Section 400.471(10), Florida Statutes, therefore, does not

constitute a rule pursuant to Section 120.54, Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition for Determination of

Invalidity of Non-Rule Policy is dismissed.

DONE AND ORDERED this 6th day of July, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July, 2010.

ENDNOTES

1 / All references to the Florida Statutes are to the 2009

edition unless otherwise indicated.

2 / In its Petition and its response in opposition to the Motion

for Summary Final Order, My Friend Home Care relies on the

holding in Middlebrooks v. Department of State , 565 So. 2d 727

(Fla. 1st DCA 1990), for its argument that the application of

Section 400.471(10), Florida Statutes, to conduct that occurred

before the effective date of the statute constitutes an

impermissible retroactive application of the statute in that it

has the effect of increasing the penalty for, and the adverse

consequences arising out of, the conduct. The issue in this

case is, however, whether AHCA's application of the statute to

deny renewal license applications for conduct occurring prior to

the effective date of the statute constitutes an unadopted rule;

the issue is not whether the statute impermissibly punishes

applicants for conduct occurring prior to the effective date of

the statute.

COPIES FURNISHED:

Julie Gallagher, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Justin Michael Senior, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop No. 3

Tallahassee, Florida 32308

Richard Joseph Saliba, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3, Mail Station 3

Tallahassee, Florida 32308

F. Scott Boyd, Executive Director

And General Counsel

Joint Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

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 one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second 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 district where the

party resides. The notice of appeal must be filed within

30 days of rendition of the order to be reviewed.