12-003463RX Florida Institute For Neurologic Rehabilitation vs. Department Of Health Status: Closed DOAH Final Order on Friday, January 25, 2013.

Summary: Department Rule 64I-1.005(1)(b) is an invalid exercise of delegated legislative authority, persuant to section 120.52(8), Florida Statutes, because it enlarges and contravenes the law implemented, and is arbitrary and capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA INSTITUTE FOR )

NEUROLOGIC REHABILITATION , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3463RX

)

DEPARTMENT OF HEALTH , )

)

Respondent . )

)

F I NAL ORDER

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

on November 15, 201 2, before Suzanne Van Wyk, duly - appointed

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Jay Adams, Esquire

David K. Miller, Esquire

Broad and Cassel

P ost O ffice Box 11300

Tallahassee, Florida 32302

For Respondent: Tiffany A. Harrington, Esquire

Nancy M. Snurkowski, Esquire

Florida Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Florida Admin istrative Code Rule 64I - 1.005(1) (b)

enlarges, modifies or contravenes the specific provisions of law

implement ed, or is arbitrary or capricious, and thus constitutes

an invalid exercise of delegated legislative authority pursuant

to section 120.52(8), Florida Statutes.

PRELIMINARY STATEMENT

On October 19, 2012, Florida Institute for Neurologic

Rehabilitation (FI NR) filed a Petition for Determination of

Invalidity of Existing Rule to challenge t he validity of rule

64J - 2.010.

This matter was set for hearing on November 15, 2012. On

November 8, 2012, Respondent, Department of Health, filed a

Motion for Summary Fi n al Order, which was denied.

On November 14, 2012, Respondent filed a Motion to Exclude

Evidence, a Motion to Exclude Witness, and a Motion for Oral

Argument on Motions to Exclude Evidence and Witness Testimony.

The undersigned held a telephonic hearing o n the m otions on

November 14, 2012, granting both motions, in part.

The final hearing wa s held as scheduled on November 15,

2012, in Tallahassee, Florida. At hearing, Petitioner presented

the testimony of Jeffrey Walden, Ph.D, a neuropsychologist and

dir ector of FINR C ommunity Integration P rogram, accepted as an

expert in clinical neuropsychology; Jorge Villalba, M.D., FINR

Chief Medical Officer, accepted as an expert in psychiatry and

brain injury rehabilitation; and Joseph Brennick, owner of FINR.

Peti tionerÓs Exhibits numbered 1 through 6 were accepted into

evidence at hearing.

Respondent presented no evidence or testimony at the final

hearing.

The undersigned held the record open until November 20,

2012, for late - filed exhibits. RespondentÓs Exhibit s numbered

8, 9 , and 10 we re timely submitted on November 16, 2012.

At the final hearing, the undersigned denied PetitionerÓs

request to introduce into evidence an excerpt from the

deposition of T hom DeL il l a , RespondentÓs agency representative,

and Petiti oner proffered the exhibit. Upon further reflection,

the undersigned issued an Order on Proffered Exhibit on

November 1 6, 2012 reversing that ruling, requiring the exhibi t

be filed by November 20, 2012 and requesting Respondent to

notify the undersigned i n writing by November 20, 2012 should

they require additional evidentiary time in rebuttal.

Petitioner timely filed the deposition ex cerpt as Exhibit 11 on

November 16, 2012. Respondent did not file a request for

additional evidentiary time.

The final h earing Transcript , comprising one volume, was

file d with the Division on December 4, 2012. Both parties

timely filed Proposed Final Orders on December 14, 2012, which

have been carefully considered in the preparation of this Final

Order.

FINDINGS OF FACT

The Parties

1 . FINR is licensed by the Florida Agency for Health Care

Administration (AHCA) as a ÐTransitional Living FacilityÑ (TLF),

pursuant to both the ÐHealth Care Licensing Procedures Act,Ñ

section 408.801 et seq ., Florida Statutes, and section 40 0.805,

Florida Statu t es (2011). 1/

2 . FINR is located in Wauchula, Florida, and, as of the

date of the final hearing, was treating 84 patients,

approximately 45 of whom suffered from non - traumatic brain or

spinal cord injury, while the remainder suffered f rom traumatic

brain or spinal cord injuries.

3 . Traumatic brain injuries are those resulting from

external trauma, such as rapid deceleration in a n automobile

accident or a fall, or a penetrating injury such as a gunshot.

4 . Non - traumatic brain injuries result from internal

phenomena, such as stroke, anoxia , or disease.

5 . Respondent, Department of Health (the Department), is

the state agency charged with adoption of rules governing the

services provided to clients of TLFs, and enforcing all

requirement s for providing services to TLF clients. See

§ 400.805(3)(b), Fla. Stat.

6 . Both the Department and AHCA are authorized to conduct

inspections, or site surveys, of licensed TLFs. See

§ § 400.805(4) and 408.811, Fla. Stat.

7 . The Department is also the state agency charged with

administering the Brain and Spi nal Cord Injury Program (BSCIP ),

a multi - level treatment program for persons with traumatic brain

and spinal cord injuries, pursuant to the Charlie Mack

Overstreet Brain or Spinal Cord Injuries Act, sections 381.739 -

381.79, Florida Statutes.

8 . The Department requires TLFs to be accredited by the

Council on the Accreditation of Rehabilitation Facilities

(ÐCARFÑ) as a prerequisite to approval under the BSCIP.

9 . All programs and services seeking C ARF accreditation

must meet the standards promulgated by CARF through its Medical

Rehabilitation Standards Manual (CARF Manual).

10 . The CARF manual defines Ðacquired brain injuryÑ to

encompass both t raumatic and non - traumatic eti o lo gies, or

causes, of br ain injury.

11 . While every patient suffering from acquired brain

injury has different medical needs, when a pati ent is ready for

rehabilitation there is little, if any, difference in the

management strategies for persons with traumatic and non -

traumatic brain injuries.

12 . In Florida, persons with acquired brain injury may

receive rehabilitation services at a variety of facilities,

including transitional living facilities, nursing homes, and

assisted living facilities. Persons not requiring residential

care may be outpatients, may be in a day treatment program, or

may be receiving supportive services in their home.

FINR Site Surveys

13 . FINR has been licensed by AHCA as a T LF since November

1993, and as such, has been surveyed by the Department and AHC A

from time to time.

14 . On December 6, 2005, the Department and AHCA conducted

a site survey at FINR, and, based on the results of the survey,

recertified FINR as Ða state designated Brain and Spinal Cord

Inju ry Transitional Living Facility .Ñ

15 . The s urvey report from the 2005 inspection, issued

February 22, 2006, notes as follows:

The site review revealed that the program

has many consumers with various disabling

conditions occupying designated TLF beds.

Many of the consumers have an acquired

related brain injury, i.e., stroke, ano x ia,

birth defects, and disease. A large number

do have traumatic brain injury as defined by

the state definition in the ÒFacility

Designation StandardsÓ revised April 2005.

It is recommended that the Florida Institute

for N eurological Rehabilitation reevaluate

its need for having so many designated TLF

beds vs. the actual number of true

ÒtraumaticÓ brain injured consumers in their

program.

16 . FINR was surveyed by a team from AHCA and the

Department more recently on Augus t 2 and 3, 2012, following

adoption of Florida Administra tive Code Rule 64I - 1.005(1)(b).

17 . The 2012 survey report notes the following licensee

deficiency:

Pursuant to Section 400.805(1)(c), F.S., the

facility failed to ensure each resident

admitted to the facility met the criteria

for admission to a transitional living

facility. A review of the monthly summary

report for the 98 residents that i ncluded

the admitting diagnosis revealed that 50 did

not include an appropriate admitting

diagnosis of spinal - cord - injured or head -

injured.

The Rule

18 . Petitioner challenges Florida Administrative Code Rule

64I - 1.005(1)(b) (the Rule), which reads as follows:

64I - ansitional Living Facility

(TLF) Services.

(1) Services:

* * *

(b) TLF services are solely for p ersons who

have sustained brain or spinal cord injury

as defined in Section 381.745(2), F.S.;

19 . Section 381.745(2) defines Ðbrain or spinal cord

injuryÑ to mean only those injuries resulting from external

trauma.

20 . The term ÐservicesÑ is not statuto rily limited for

purpose of licensing TLFs. Section 400.805(1)(c) provides that

specialized health care services provided by TLFs include Ðbut

[are] not limited to, rehabilitative services, community reentry

training, aids for independent living, and c oun seling.Ñ

21 . FINR provides to its patients rehabilitative services,

community reentry training, aids for independent living, and

counseling.

22 . Pursuant to section 381.75, TLFs must provide Ðat

least the following therapiesÑ to persons suffering from

tr aumatic brain or spinal cord injury: Ðphysical, occupational,

speech, neuropsychology, independent living skills training,

behavior analysis for programs serving brain - injured

individuals, health education, and recreation.Ñ § 381.75(6)(c),

Fla. Stat.

23 . FINR provides to its patients occupational, physical

and speech therapies; neuropsychological assessment; nursing and

psychiatric services; counseling; vocational and community

integration training; as well as recreational activities.

24 . The effect of the Rule is to prohibit FINR from

providing services to its patients who suffer non - traumatic

brain and spinal cord injury.

25 . FINR is substantially affected by the Rule.

The TLF Statute

26 . Statutory regulation of TLFs in Florida began in 1990,

wh en the Legislature added TLFs to chapter 400, Part I, Florida

Statutes, regulating Nursing Homes. See ch. 90 - 330, § 1, Laws

of Fla.

27 . The law defined TLF as follows:

ÒTransitional Living FacilityÓ means a

related health care facility which provides

spe cialized health care services, including,

but not limited to, rehabilitation services,

community reentry training, aids for

independent living, and counseling to

spinal - cord - injured persons and head - injured

persons. Any hospital licensed under chapter

395 is exempt from the provisions of this

definition.

§ 400.021, Fla. Stat. (1991).

28 . The law charged the Department of Health and

Rehabilitative Services (HRS), in consultation with the Division

of Vocational Rehabilitation, Department of Labor and Employ ment

Security ( the Division), to develop rules for licensing TLFs.

See ch. 90 - 330, § 2, Laws of Fla.

29 . In 1993, the Legislature created section 400.805,

Florida Statutes, ÐTransitional Living Facilities,Ñ relocating

TLF provisions from Part I, Nursing Homes, to Part VIII,

Intermediate, Special Services, and Transitional Living

Facilities. See ch. 93 - 217, § 36, Laws of Fla. The law

transferred licensure of TLFs to the Agency for Health Care

Administration from its predecessor , HRS, and set forth the

pr ocess and fees for licensure, as well as penalties for

violations of the licensing statute. However, the definition of

TLF remained essentially unchanged. 2/

30 . The section was amended again in 1998, when the

Legislature added detailed provisions regardi ng the right of

entry and inspection of TLFs, warrant requirements, and legal

remedies for violations that affect the health, safety, or

welfare of TLF residents. See ch. 98 - 12, Laws of Fla.

31 . In 1999, the TLF statute was amended again to

transfer, from the Division to the Department of Health, the

duty to adopt rules governing the services provided to clients

of TLFs. See ch. 99 - 240, Laws of Fla.

32 . In 2006, the Florida Legislature enacted the ÐHealth

Care Licensing and Procedures Act,Ñ Part II, c ha pter 408,

Florida Statutes (the Act), to Ðprovide a streamlined and

consistent set of basic licensing requirements for all [health

care] providers in order to minimize confusion, standardize

terminology, and include issues that are otherwise not

adequately address ed in the Florida Statutes pertaining to

specific providers.Ñ § 408.801, Fla. Stat. Part II governs the

licensing requirements, procedure, and fees for an exhaustive

list of health care facilities, including TLFs. See § 408.801,

et seq ., Fla. St at. (2005) .

33 . Section 400.805 was significantly amended in 2007,

following adoption of the Act. The Legislature deleted all the

detailed licensure provisions from 400.805 and replaced them

with a specific cross - reference to part II of the Act,

incorpo rating the licensing requirements and licensing

procedures of the Act into the TLF statute. See ch. 2007 - 230,

Laws of Fla.

34 . The TLF statute was not amended again until 2010 when

the Legislature revised regulations relating to background

screening of e mployees at TLFs. See ch. 10 - 114, § 11, Laws of

Fla.

35 . The current TLF licensing statute reads, in pertinent

part, as follows:

400.805 Transitional living facilities. Ï

(1) As used in this section, the term:

(a) ÐAgencyÑ means the Agency for Health

Ca re Administration.

(b) ÐDepartmentÑ means the Department of

Health.

(c) ÐTransitional living facilityÑ means a

site where specialized health care services

are provided, including, but not limited to,

rehabilitative services, community reentry

training, aid s for independent living, and

counseling to spinal - cord - injured persons

and head - injured persons. This term does

not include a hospital licensed under

chapter 395 or any federally operated

hospital or facility.

* * *

(3)(a) The agency shall adopt rules in

consultation with the department governing

the physical plant of transitional living

facilities and the fiscal management of

transitional living facilities.

(b) The department shall adopt rules in

consultation with the agency governing the

services prov ided to clients of transitional

living facilities. The department shall

enforce all requirements for providing

services to the facilityÓs clients. The

department must notify the agency when it

determines that an applicant for licensure

meets the service requirements adopted by

the department.

§ 408.805, Fla. Stat. (2011)(emphasis added).

36. The Department adopted no rules to implement this

mandate until 2011. One of those rules is the subject of the

instant rule challenge.

Florida Brain and Spinal Cor d Injury Program

37. The Department relies, in large part, upon its

rulemaking authority under the BSCIP in support of its adoption

of the Rule. Some background of the BSCIP is essential to an

understanding of this case.

38. The Legislature first add ressed statewide assessment

and treatment of brain and spinal cord injuries in 1974, well

before enactment of TLF statute. The Legislature created

sections 413.504 through 413.604, Florida Statutes, expressing

the intent to provide for development of a co ordinated

rehabilitation program for persons with spinal cord injuries.

See ch. 74 - 254, § 4, Laws of Fla. The law required HRS to

develop a plan for establishing a multi - level treatment program

for persons with spinal cord injuries and present the plan t o

the secretary for review by March 1, 1977. § 413.603, Fla.

Stat. (1985). The Legislation required HRS to include the

following components in the plan:

- An emergency medical evacuation system to

ensure persons with spinal cord injuries

would be transport ed to an intensive

trauma care center in a timely manner.

See § 413.603(1) .

- A system of intensive trauma care centers,

a number of which to be based on need,

equipped to treat spinal - cord - injured

persons to prevent paralysis and transfer

the person to reh abilitation as soon as

possible. See § 413.603(2) .

- A system of rehabilitation centers to

provide services for persons transferred

from the trauma centers and for other

persons with spinal cord injuries

requiring rehabilitation services. The

number of cen ters was to be based on need

and each center was to consist of a

special medical unit with appropriate

professional personnel and expertise. See

§ 413.603(3) .

- A system of Ðhalf - way housesÑ for

individuals Ðwho need attendant care, who

are in adjustment pe riods, who require a

structured environment, or who are in

retraining or educational programs.Ñ

§ 413.603(4), Fla. Stat. (1985)(emphasis

added).

- A system for assessing a fee for residents

of said facilities, based on ability to

pay. See § 413.603(5) .

39 . The legislation also required HRS to survey nursing

homes and identify residents 55 years of age and younger with

spinal cord injuries, evaluate their fitness for rehabilitation ,

and offer them the opportunity to participate in the program.

See § 413.6 04, Fla. Stat. (1985). Finally, the legislation

created an advisory council on spinal cord injuries to provide

advice and expertise to HRS in preparation, implementation , and

periodic review of the rehabilitation program. See § 413.605,

Fla. Stat. (1985)

40. As to persons with head injuries, the 1974 legislation

created sections 413.611 and 413.612, Florida Statutes. The

legislation defined Ðhead injuryÑ as Ðan insult to the skull,

brain, or its covering, resulting from external trauma which

produces a n altered state of consciousness or anatomic, motor,

sensory, or cognitive/behavioral deficits.Ñ § 413.612, Fla.

Stat. (1985)(emphasis added ). The legislation expressed the

intent to collect information on head - injured persons, to

develop head injury tre atment and rehabilitation programs, and

ensure the referral of head - injured persons to HRS in order to

ensure they obtain Ðappropriate rehabilitative servicesÑ either

through HRS or other providers. The legislation also created an

Advisory Council on Head Injury to assist HRS in developing a

coordinated multi - level plan of care to be presented to the

secretary for review and approval by July 1, 1986. See

§ 413.605, Fla. Stat.

41. In 1987, the programs (both spinal cord and head

injury) were transferred from HRS to the Department of Labor and

Employment Security, Division of Vocational Rehabilitation ( the

Division). See ch. 87 - 320, Laws of Fla. Otherwise, the

provisions remained essentially unchanged.

42 . In 1990, the legislature replaced the term Ðha lf - way

houseÑ in section 413.603(4) with the term Ðtransitional living

facilityÑ, revising the multi - level system for treatment of

persons with traumatic spinal cord and head injury to include

(1) intensive trauma care centers, (2) rehabilitation centers,

and (3) transitional living facilities. See ch. 90 - 330, § 7,

Laws of Fla.

43 . The 1990 legislation defined TLF by direct cross -

reference to section 400.021(16), the definition of TLF added

the same year in the Nursing Home licensing statute. See

ch. 90 - 330, § 5, Laws of Fla.

44 . In 1994, the year after the Legislature adopted the

TLF statute , the Legislature enacted an omnibus bill relating to

rehabilitation of persons with disabilities. See ch. 94 - 324,

Laws of Fla. The bill created the ÐCharlie Mac k Overstreet

Brain and Spinal Cord Injury ActÑ at section 413.456 et seq .

(the Act), consolidating the former provisions, relating

separately to spinal cord injury and head injury, into the state

Brain and Spinal Cord Injury Program ( BSCIP or the Program ).

See ch. 94 - 324, §§ 32 - 34, Laws of Fla. The Program retained the

characteristics of a multi - level treatment program, requiring

creation and maintenance of a central registry of injured

persons, referral to the registry, emergency evacuation of

injured pe rsons, and progressive treatment of injured persons,

beginning with trauma centers, and including continuing

treatment in inpatient and outpatient rehabilitation centers.

See Id .

45 . The Act covered treatment of persons with Ðbrain

injury,Ñ rather than the term Ðhead injuryÑ used in prior

statutes. See Id . However, as enacted in 1994, the Act did not

define Ðbrain injury.Ñ

46 . The Act limited Program eligibility to perso ns suffering

Ðtraumatic injury,Ñ which was defined as follows:

(a) A lesion to the spi nal cord or

cauda equina with evidence of significant

involvement of two of the following deficits

or dysfunctions:

1. Motor deficit .

2. Sensory deficit .

3. Bowel and bladder dysfunction ; or

(b) An insult to the skull, brain, or

its covering, resulting from exte rnal

trauma, which produces an altered state of

consciousness or anatomic motor, sensory,

cognitive, or behavioral deficits.

ch. 94 - 324, § 4, Laws of Fla.

47 . The Act defined Ðtransitional living facilitiesÑ to

mean Ð state approved facility[ies] as defin ed and licensed

pursuant to chapter 400 and division - approved in accord with

this part.Ñ c h. 94 - 324, § 4 , Fla. Laws. (emphasis added). The

1994 Act gave AHCA the duty of adopt ing rules for licensure of

transitional living facilities for persons who have brain or

spinal cord injuries, but did not amend any provision of the T LF

licensing statute enacted the prior year. See ch. 94 - 324 , § 34,

Laws of Fla. The bill required the Division to Ðdevelop

standards for designation of transitional living facilities to

provide individuals the opportunity to adjust to their

disabilities and to develop physical and functional skills in a

supported living environment.Ñ ch. 94 - 324, § 34 , Laws of Fla.

48. In 1998, the Legislature amended the BSCIP Act by

adding to secti on 413.49 the duties of transitional living

facilities with respect to patients in the Program. See ch. 98 -

12, § 2 , Laws of Fla. The amendment required TLFs to offer Ðat

least the following therapies: physical, occupational, speech,

neur opsychology, inde pendent living skills training, behavior

analysis for programs serving brain - injured persons, health

education , and recreation.Ñ Id . The amendment also required

TLFs to develop an initial treatment plan for each resident, as

well as a comprehensive plan of treatment and discharge within

30 days after admission. See Id .

49. In 1999, the Program was transferred in its entirety

from the Division to the Department of Health and renumbered as

sections 381.73 - 381.79, Florida Statutes, without substantive

cha nge. See ch. 99 - 240, §§ 16 - 23, Laws of Fla. The revision

states as follows:

Effective January 1, 2000, the brain and

spinal cord injury program established in

sections 400.805 and 413.48, Florida

Statutes, and the Office of Disability

Determinations admi nistered by the

Department of Labor and Employment Security

are transferred by a type two transfer, as

defined in section 20.06, Florida Statutes,

to the Department of Health.

ch. 99 - 240, § 15, Laws of Fla.

50. The law retained a cross - reference to the d efinition

of Ðtraumatic injuryÑ in section 413.20, which had been

renumbered. See ch. 99 - 240, § 20, Laws of Fla. The following

year, the Legislature corrected this glitch, s triking the

reference to 413.20 and creating a new set of definitions for

the Pro gram, many of which were identical to the prior

definitions in 413.20. See ch. 00 - 367, § 15 and 18, Laws of

Fla. The 2000 Legislature also replaced the definition of

Ðtraumatic injuryÑ with Ðbrain and spinal cord injuryÑ for

purposes of determining Progr am eligibility. See ch. 00 - 367,

§ 15, Laws of Fla. The substantive difference was the addition

of the phrase Ðresulting from external traumaÑ to the

description of spinal cord injuries. See Id . Thus, the

Legislature aligned Program eligibility for spin al - cord - injured

persons with Program eligibility for brain - injured persons - Î

external trauma is required for participation in the Program.

51. In 2000, the Legislature also redefined Ðtransitional

living facilityÑ as Ða state - approved facility, as define d and

licensed under chapter 400, or a facility approved by the brain

and spinal cord injury program in accordance with this chapter.Ñ

Id . (emphasis added ).

52. Notably, the definition of TLF was amended again in

2006 to read as follows: Ða state - approv ed facility, as defined

and licensed under chapter 400 or chapter 429 , or a facility

approved by the brain and spinal cord injury program in

accordance with this chapter.Ñ ch. 06 - 745, § 14, Laws of Fla.

53. Chapter 429, Florida Statutes, is titled ÐAssis ted

Care Communit i esÑ and governs licensing of Assisted Living

Facilities, Adult Family - Care Homes, and Adult Day Care Centers.

54. The statutes governing eligibility for the Program, as

well as designation of TLFs, and the role and responsibilities

of TL Fs in the Program, have remained unchanged since 2006.

CONCLUSIONS OF LAW

Jurisdiction and Standing

55. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding. See

§§ 120.56(1)(c), 120.569 and 120.57(1), Fla . Stat. Section

120.56(1)(a) provides:

Any person substantially affected by a rule

or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the Rule is an invalid exercise of delegated

legislative author ity.

56. Jurisdiction attaches when a person who is

substantially affected by a rule claims that it is an invalid

exercise of delegated legislative authority. The party

challenging an existing agency rule has the burden to prove by a

preponderance of t he evidence that the Rule constitutes an

invalid exercise of delegated legislative authority as to the

objections raised. § 120.56(3)(a), Fla. Stat. Cortes v. State

Bd. of Regents , 665 So. 2d 132 (Fla. 1st DCA 1995). The

challenger's burden is a stringe nt one. Id. ; Charity v. Fla.

State Univ. , 680 So. 2d 463 (Fla. 1st DCA 1996).

57. Substantial interest jurisdiction under section

120.569(1) does not require that a party prevail on the merits.

See Peace River/Manasota Reg'l Water Supply Auth. v. IMC

P hosphates Co. , 18 So. 3d 1079, 1082 - 85 (Fla. 2d DCA 2009); Palm

Beach Cnty . Envt'l Coal. v. Dep't of Envt l . Prot. , 14 So. 3d

1076 (Fla. 2009). If a party's substantial interests "could be

affected" or "could reasonably be affected," then that is enough

to establish the substantial interests needed to obtain

standing. See Peace River , 18 So. 3d at 1084; Palm Beach Cnty.

Envt'l Coal. , 14 So. 3d at 1078. The standing requirement is a

"forward - looking concept [that] cannot 'disappear' based upon

the ultimate outcome of the proceeding." See Id. , 18 So. 3d at

1083; 14 So. 3d at 1078.

58. Respondent has not contested PetitionerÓs standing to

bring the instant rule challenge. Based on Findings of Fact

numbered 1 through 25 above, Petitioner has demonstrated

s tandin g as a licensed TLF subject to r ule 64I - 1.005.

Invalid Exercise of Delegated Legislative Authority

59. Petitioner brought this rul e challenge pursuant to

section 120.56(1) and (3), Florida Statutes. Section

120.56(3)(a) provides:

A substantially a ffected person may seek an

administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule. The

petitioner has the burden of proving by a

preponderance of the evidence that the

existing rule is an invalid ex ercise of

delegated legislative authority as to the

objections raised.

60. Specifically, Petitioner challenges the Rule as an

Ðinvalid exercise of delegated legislative authorityÑ pursuant

to sections 120.52(8)(c) and (8 )(e), which provide as follows:

ÒI nvalid exercise of delegated legislative

authorityÓ means action that goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing

rule is an invalid exercise of delegated

legislative authority if any one of the

follo wing applies:

* * *

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by section 120.54(3)(a)1 . ;

* * *

(e) The Rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational;

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

im plemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

langu age granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

Added in 2008, sect ion 120.52(17) provides:

ÒRulemaking authorityÓ means statutory

language that explicitly authorizes or

requires an agency to adopt, develop,

establish, or otherwise create any statement

coming within th e definition of the term

Òrule.Ó

61. This definitio n does not add new restrictions to

agency rulemaking authority, but it does emphasize the existing

restrictions cited in the definition of an "invalid exercise of

delegated legislative authority." See Fla. Elec. Comm'n v.

Blair , 52 So. 3d 9 (Fla. 1st DCA 2010). The term "law

implemented" is also defined by Florida Statutes as "the

language of the enabling statute being carried out or

interpreted by an agency through rulemaking." See § 120.52( 9),

Fla. Stat.

62. Petitioner asserts that the Rule enlarges, modifies or

contravenes the law it purports to implement because it

improperly applies the eligibility criteria of the BSCIP --

traumatic head and spinal cord injury -- to all clients of TLFs.

Pet. PFO , ¶ 36. Petitioner argues that the Rule is arbitrary or

capricious because it imposes limitations that are contrary to

the accreditation standards imposed by the Department itself;

arbitrarily forecloses treatment options for persons with non -

traumatic brain and spinal cord injuries; and negatively a ffects

business es and consumers, contrary to the statements made by

Department staff at rule development workshops. 3/

63. There is no dispute that eligibility for the BSCIP is

limited to those patients who have suffered brain or spinal cord

injury resulting fro m external trauma. See §§ 381.745(2) and

381.76, Fla. Stat. The essential question in this case is

whether the statutes cited by the Department as authority to

adopt the Rule prohibit TLFs from serving patients suffering

from non - traumatic brain and spin al cord injury.

64. Analysis of the issue must begin with an understanding

of the Rule itself. The Rule governs services provided by TLFs:

ÐTLF services are solely for persons who have sustained brain or

spinal cord injury as defined in Section 381.745( 2), F.S.Ñ Fla.

Admin. Code R. 64I - 1.005(1)(b). Notably, as promulgated by the

Department, the Rule explicitly applies to services provided by

TLFs outside the Program. See Fla. Admin. Code R. 64I -

1.001(2 )(h) (ÐÒServicesÓ means S ervices provided by the G eneral

ProgramÑ). Yet the defin ition of Services in Florida

Administrative Code Rule 64I - 1.001(2 )(h) does not apply to the

challenged Rule. See Fla. Admin. Code R. 64I - 1.001(1)(applying

the definitions therein only to sections 381.739 through 381.79

and r ules 64I - 1.001 through 64I - 1.003 ).

Enlargement of Specific Law Implemented

65. At the outset, the undersigned notes that an agencyÓs

interpretation of an operable statute, which the agency is

charged with administering, is entitled to deference. Kessle r

v. DepÓt of M gmt. Serv s . , 17 So. 3d 759, 762 (Fla. 1st DCA

2009). However, that deference is not absolute, and will not be

afforded where the agencyÓs view is contrary to the statuteÓs

plain meaning. See Id .

66. The Department cites sections 381.75 a nd 400.805,

Florida Statutes, as the laws implemented by the Rule.

67. Under s ection 381.75 of the Act, the Department has

the following authority with respect to TLFs: ÐThe department

shall develop standards for designation of transitional living

facili ties to provide individuals the opportunity to adjust to

their disabilities and to develop physical and functional skills

in a supported living environment.Ñ § 381.75(6), Fla. Stat.

(emphasis added ).

68. A Ðdesignated facilityÑ under the Act means Ða

fac ility approved by the brain and spinal cord injury program

which meets the criteria and standards of care of the brain and

spinal cord injury program for individuals who have sustained a

brain or spinal cord injury.Ñ § 381.745(6), Fla. Stat.

69. By defin ition since 2006, the Legislature has

recognized a broad base from which the Program may designate

TLFs to serve persons eligible for services provided by the

Program. The Program definition of a TLF is Ða state - approved

facility, as defined and licensed under chapter 400 or

chapter 429, or a facility approved by the brain and spinal cord

injury program in accordance with this chapter.Ñ § 381.745(9),

Fla. Stat. (emphasis added). When clauses in a statute are

connected by the disjunctive ÐorÑ the applicat ion of the statute

is not limited to cases falling within all clauses, but will

apply to cases falling within any of the clauses. See 73 Am .

Jur . 2d, § 147, Statutes. Thus, a TFL serving patients in the

Program is not limited to TLFs licensed under chapt er 400, but

may also include Assisted Living Facilities, Adult Family - Care

Homes, and Adult Day Care Centers, as well as any facility

otherwise approved by the Program.

70. The statutory direction to the Department in section

381.75 is to develop standard s to designate, from the broad

range of available TLFs, facilities to provide rehabilitation

services required by persons with traumatic brain and spinal

cord injuries. 4/

71. However, the Rule does not provide any standard for

designation of TLFs to serv e individuals in the Program. As

admitted by the Department in its Proposed Final Order, the Rule

Ðprescribes that Transitional Living Facilities may only provide

services to persons who have sustained traumatic brain and

spinal cord injuries.Ñ Resp. PFO , p.2 (unnumbered

introduction). As such, the Rule improperly expands the scope

of the cited statute from TLF standard - setting to TLF client

acceptance.

72. Furthermore, the authority provided the Department by

section 381.75 is limited to standard setti ng for the Program.

As concluded in paragraph 64 above, the Rule is clearly an

exercise of the DepartmentÓs authority outside the Program.

Section 381.75 does not confer any rulemaking authority to the

Department outside of the Program. As such, section 381.75 is

not law implemented by adoption of the Rule.

73. The DepartmentÓs authority to govern services provided

by TLFs is in section 400.805, the second statutory section

cited by the Department as law implemented by the Rule. This

provision is found in the TLF licensing statute and reads, ÐThe

department shall adopt rules in consultation with the agency

governing the services provided to clients of transitional

living facilities.Ñ § 400.805(3)(b), Fla. Stat.

74. TLF is defined in the licensing stat ute as Ða site

where specialized health care services are provided, including,

but not limited to, rehabilitative services, community reentry

training, aids for independent living, and counseling to spinal -

cord - injured and head - injured persons.Ñ § 400.805 (1)(c), Fla.

Stat.

75. Yet, the Rule bears no relationship to the services to

be provided by a TLF. The Rule does not govern the provision of

rehabilitative services, community reentry training, aids for

independent living, counseling, or any other serv ice to

patients. 5/ Instead, the R ule limits TLFs to treating only

patients with traumatic brain and spinal cord injuries -- in

essence, Program participants. As such, the Department carries

over a Program eligibility restriction from the BSCIP into the

T LF licensing statute, arguing, in essence, that the term Ðhead -

injuredÑ in the TLF licensing statute has the same meaning as

Ðbrain injuryÑ used in the BSCIP.

76. Whether the two terms have the same meaning is a

question of statutory construction. In mat ters of statutory

construction, Ðlegislative intent is the polestar that guides

the Court.Ñ School Bd. of Palm Beach C nty. v. Survivors Charter

School , 3 So. 3d 1220, 1232 (Fla. 2009)(citing Bautista v.

State , 863 So. 2d 1180, 1185 (Fla. 2003)). Any case of

statutory construction must begin with the actual language of

the statute, Ðbecause legislative intent is determined primarily

from the statuteÓs text.Ñ Mendenhall v. State , 48 So. 3d

740, 748 (Fla. 2010)(citations omitted).

77. TLFs are licensed by AHCA to serve Ðspinal - cord -

injured and head - injured persons.Ñ Unlike the BSCIP statute,

which defines Ðbrain injuryÑ as resulting from trauma, the TLF

licensing statute does not define Ðhead - injured.Ñ Where a

statute does not define a term at issue, the term must be given

its plain and ordinary meaning. See Nehme v. Smithkline Beecham

Clinical Labs, Inc ., 863 So. 2d 201, 204 (Fla. 2003). When

necessary, the plain and ordinary meaning of words can be

ascertained by reference to a dictionary. Id . at 205.

78. The term ÐinjuryÑ means Ðan act that damages or

hurtsÑ. M ERRIAM W EBSTER 2 D www.merriam - webster.com/dictionary . The

term Ð injury Ñ is broader than the definition of Ðtrauma,Ñ which

means Ðan inj ury (as a wound) to living tissue caused by an

extrinsic agent.Ñ Id . In plain and ordinary language, a

traumatic injury is a specific subset of injury, and does not

have the same meaning. Thus, based on the plain language of the

statute, traumatic injur y is not a prerequisite to treatment of

patients by AHCA - licensed TLFs.

79. It is axiomatic that when the legislature uses a term

in one section of the statute, but omits it in another section

of the same statute, courts should not imply it where it has

b een excluded. 6/ See Beshore v. DepÓt. of Fin . S erv s. ,

928 So. 2d 411, 412 (Fla. 1st DCA 2006)(citing Leisure Resorts,

Inc. v. Frank J. Rooney, Inc ., 654 So. 2d 911, 914 (Fla. 1995));

Staff Leasing and Liberty Mutual v. Special Disability Trust

Fund , 784 S o. 2d 512, 514 (Fla. 1st DCA 2001)(citing Beach v.

Great Western Bank , 692 So. 2d 146, 152 (Fla. 1997), affÓd ,

523 U.S. 410 (1998)). The definition of the term Ðbrain injuryÑ

from section 381.745, and consequently the limitation of

traumatic injury therei n, cannot be inserted by implication in

the licensing statute.

80. Further, as related statutes, the BSCIP statute and

the TLF licensing statute must be read in pari materia and

construed in such a manner to give effect to each part. See

McDonald v. Stat e , 957 So. 2d 605, 610 (Fla. 2007). One

provision of a statute should not be read in such a way that

renders another provision meaningless. See KatherineÓs Bay v.

Fagan , 52 So. 3d 19, 21 (Fla. 1 st DCA 2010). As astutely argued

by Petitioner, the Departm entÓs interpretation that the statutes

limit TLFs to serving only patients with Ðbrain injuryÑ as

defined in the BSCIP would render meaningless the phrase Ðfor

individuals who have brain and spinal cord injuriesÑ modifying

Ðtransitional living facilityÑ in the BSCIP Act. See

§ 381.75(6)(a), (b), and (c), Fla. Stat. If the Legislature

created TLFs solely to serve persons eligible for the BSCIP,

there would be no reason to direct AHCA to license TLFs to serve

individuals with brain and spinal cord injuries. The

DepartmentÓs interpretation cannot stand. See also State v.

Bradford , 787 So. 2d 811, 819 (Fla. 2001)(Ðthe concept of

reading statutes in pari materia does not require that elements

from one subsection be carried over and inserted into another

subse ction even if the statutes are related . Ñ).

81. The Legislature created the phrase Ðbrain and spinal

cord injuryÑ when it enacted the BSCIP in 1994, abandoning the

phrase Ðhead - injured and spinal - cord injured Ñ used in all

previous versions of the statute c reating a multi - level

treatment system for persons with head and spinal cord injuries .

Yet, the Legislature did not amend the same term in the TLF

licensing statute created the prior year. The LegislatureÓs

inaction cannot be interpreted as a mere oversi ght, as a

legislative body is presumed to pass statutes with full

knowledge of prior existing statutes. See Knowles v. Beverly

Enterprises - Florida, Inc ., 898 So. 2d 1, 9 (Fla. 2004); Ag. for

Health Care Admin v. In re Estate of Johnson , 743 So. 2 d 83, 86 -

87 (Fla. 3d DCA 1999).

82. The conclusion that the Legislature intended different

meanings for the terms Ðhead - injuredÑ and Ðbrain - injuredÑ is

bolstered by the fact that the Legislature has amended the TLF

licensing statute five separate times over a span of 16 years

since adopting the BSCIP but has not substituted the term

Ðbrain - injuredÑ for Ðhead - injured.Ñ The Legislature was well

aware of how to incorporate trauma as a limitation on clients

served by TLFs, but declined to do so. See State v. Bradford ,

787 So. 2d 811, 820 (Fla. 2001)(finding, based upon the

legislatureÓs use of the term ÐfraudÑ in certain sections of the

statute and its exclusion in the section defining Ðunlawful

insurance solicitation,Ñ as well as the legislative history of

the statut e, that the legislature was well aware of how to

incorporate ÐfraudÑ as an element of the offense, but declined

to do so).

83. The Department makes two arguments to support its

interpretation that TLFs are limited to serving patients with

traumatic head and spinal cord injuries.

84. First, the Department argues that the Rule merely

tracks the language of the statute which defines Ðbrain injuryÑ

to mean Ðan insult to the skull, brain, or its covering,

resulting from external trauma.Ñ § 381.745(2)(b), Fl a. Stat.

The Department reasons that, as an agency vested with Ðonly such

powers as statutes confer,Ñ to adopt a rule that allowed TLF

services to be provided to persons with non - traumatic brain

injury would expand its authority beyond that authorized by law.

R esp. PFO, ¶ 5.

85. The DepartmentÓs argument is defeated by the plain

language of the statute. 7/ The definitions in section 381.745

clearly apply only to administration of the Program. See

§ 381.745 (Title)(ÐAs used in ss.381.739 - 381.79, the term :Ñ)

Yet, the Rule, as promulgated by the Department, explicitly

applies to services provided by TLFs outside the Program. See

Fla. Admin. Code R. 64I - 1.001(1)(h) (ÐServicesÑ means Services

provided by the General ProgramÑ). The Department adopted a

rule that directly applies to services provided outside the

Program, yet cites as authority a statute limited in application

to the Program. As such, the argument fails.

86. Second, the Department maintains its interpretation is

appropriate under the princi ple of statutory construction

providing that the more specific statute on a particular subject

matter always controls over a general statute governing the same

matter. Resp. PFO ¶ 11. The Department argues that the BSCIP

statute Ðmandating the department to create standards for TLFs

is undoubtedly the more specific statute in comparison to the

Agency for Health Care AdministrationÓs statute relating to

their statutory obligations over the physical plant and fiscal

accountability of a TLF. As such, the de partmentÓs definition

of Òbrain injuryÓ is the controlling statute.Ñ Id . at ¶ 1 2.

87. As a general rule, when two statutory provisions are

in conflict, the specific statute controls over the general

statute. See Mendenhall v. State , 48 So. 3d 740, 748 (Fla.

2010)(where the specific minimum mandatory sentencing provisions

of the Ð10 - 20 - L ifeÑ statute conflict with the mandatory maximum

sentencing for first degree felonies in the more general

sentencing statute, the Ð10 - 20 - LifeÑ statute prevailsÑ); Sch.

Bd . of Palm Beach C nty . v. Survivors Charter Sch . , 3 So. 3d

1220, 1236 (Fla. 2009)(procedures in section 1002.33(8)(d) for

terminating a charter school charter ÐimmediatelyÑ in emergency

situations governs over conflicting statutory procedures

governing deci sions determining substantial interests in the

Administrative Procedures Act); McKendry v. State , 641 So. 2d

45, 46 (Fla. 1994)(specific mandatory minimum sentence in

790.221(2) for possession of a short - barreled shotgun prevails

over section 948.01 which generally gives a trial judge

discretion t o suspend criminal sentences).

88. Application of the principle is unnecessary where

there is no conflict between statutory provisions. See Sherman

v. Daly , 74 So. 3d 165, 167 - 68 (Fla. 1st DCA 2011)(where statut e

authorizes court to deviate no more than five percent from the

child support guidelines Ðexcept in certain circumstances,Ñ and

subsequent statutory subsections spell out the circumstances

which allow deviation, there is no conflict between the

provisions ); Chavez v. State , 25 So. 3d 49 (Fla. 1st DCA

2009)(no internal conflict in Florida Evidence Code which holds

hearsay inadmissible absent a statutory exception, yet

grandfathers common law provisions not in conflict therewith);

cf . McDonald v. State , 957 So. 2d 605, 610 - 11 (Fla.

2007)(applying the principle to resolve Ðany perceived conflictÑ

between the Ð10 - 20 - LifeÑ statute and the Prison Release

Reoffender Act, even though the plain language of the Ð10 - 20 -

LifeÑ statute mandates the mandatory minimum sent ences under

Ð10 - 20 - LifeÑ statute and the PRR statute be imposed

concurrently).

89. In the case at hand, there is no conflict between the

BSCIP statute and the TLF licensing statute. The BSCIP statute

governs a multi - level treatment program for persons w ith

traumatic brain and spinal cord injuries. Treatment at a TLF is

but one element in the Program. On the other hand, the TLF

statute govern s licensing of all TLFs in the s tate to serve

head - injured and spinal - cord - injured persons, a broader

classificat ion of patient.

90. Assuming, arguendo , there is conflict between the

statutes, the DepartmentÓs argument that the BSCIP statute is

the more specific is not persuasive. As discussed earlier,

since the Rule directly governs TLF services outside the

Progr am, it cannot be derived from a statute limited to

administration of the Program.

91. Although not cited by the Department as support for

its interpretation of the statute, the legislative history does

provide a sliver of intent to join the licensing sta tute

exclusively with the Program. In 1999, when the Program was

transferred from the Division to the Department of Health, the

chapter law referenced the Ðbrain and spinal cord injury program

established in sections 400.805 and 413.48, Florida Statutes.Ñ

ch. 99 - 240, § 15, Laws of Fla. The undersigned does not find

the statement dispositive of the issue in this case.

92. First, the statement is consistent with the Act as it

existed in 1999, which specifically recognized TLFs licensed

pursuant to chapte r 400 as the only facilities which could be

designated as TLFs to serve patients in a then - undefined multi -

level treatment program for persons with traumatic injuries.

See ch. 94 - 324, § 4 Fla. Laws (ÐÒTransitional living facilityÓ

means a state - approved f acility as defined and licensed pursuant

to chapter 400 and division - approved in accord with this

partÑ)(emphasis added). Thus, the transfer language correctly

expressed that the program depended on facilities licensed under

chapter 400. Notably, the def inition was amended in 2006 to add

to the list of facilities available for designation to serv e

patients in the Program: those licensed under chapter 429. As

such, the 1999 statement provides no evidence of legislative

intent with respect to the statutes as they existed whe n the

Rule was adopted in 2011.

93. Second, the reference is not a substantive provision

of the chapter law, but rather a statement relating to transfer

of budgetary authority from one agency to another. Id . As

such, its value in sta tutory construction is limited. The

greater weight of the evidence, including both the plain

language and principles of statutory construction, does not

support a conclusion that TLFs are limited in scope to serving

persons with traumatic injuries.

94. I n sum, the DepartmentÓs construction enlarges and

contravenes the statutory authority provided the Department by

sections 400.805 and 381.739 - 381.79, and is not supported by

either the plain and unambiguous language of the statutes at

issue or basic rules of statutory construction.

Arbitrary and Capricious

95. Petitioner asserts that the Rule is an invalid

exercise of delegated legislative authority because it is

arbitrary and capricious. Pet. P FO, ¶ 52. Petitioner maintains

the Rule is based on unsup ported assumptions, lacks logic, and

does not advance the purposes for which it was purportedly

adopted. Id .

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without though t

or reason or is irrational.

§ 120.52(8)(e), Fla. Stat.

96. The analysis for whether a rule is arbitrary and

capricious is (1) whether the rule is supported by logic or the

necessary facts; and (2) whether the rule was adopted without

thought or is irrational. See Las Mercedes Home Care Corp . v.

Ag. for Health Care Admin , Case No. 10 - 0860RX (Fla. DOAH

July 23, 2010); affÓd , 67 So. 3d 1262 (Fla. 1st DCA 2011).

97. As explained in Agrico Chemical Co . v. DepÓt of Envtl.

Prot. , 365 So. 2d 759 (Fla. 1st DCA 1979):

A capric ious action is one which is taken

without thought or reason and irrationally.

An arbitrary decision is one not supported

by facts or logic, or despotic.

Administrative discretion must be reasoned

and based upon competent substantial

evidence. Id. at 763 .

98. As previously concluded, the Rule enlarges and

contravenes the DepartmentÓs authority in sections 400.805 and

381.739 - 381.79, Florida Statutes, by extending the qualifying

criteria of traumatic injury from the BSCIP to the TLF licensing

statute. N o such limitation exists under the plain language of

the licensing statute.

99. The Department was well aware that FINR was treating

patients with non - traumatic injuries for at least six years

prior to adoption of the Rule. When conducting the 2005 site

survey, the Department acknowledged that FINR designated a

portion of beds in the facility for treatment of patients

outside of the BSCIP, yet neither noted this as a deficiency nor

sanctioned FINR. The Department has argued that the Rule does

nothing mo re than track the plain language of the statute that

limits TLF services to persons suffering traumatic injuries. If

the BSCIP and TLF licensing statutes were so clear, then the

Department was complicit in FINRÓs violation of the statute for

at least six years, if not longer.

100. The Legislature granted the Department rulemaking

authority to adopt rules governing the services provided by TLFs

in 1999. Yet, the Department waited until 2011 to adopt said

rules, and, with full knowledge that licensed TLFs had long

served clients outside the BSCIP, only then adopted a rule that

prevented said care. The Department presented no evidence

supporting such a change in policy. As such, the Rule is not

supported by facts.

101. Assuming the DepartmentÓs rulemaki ng authority to

adopt rules governing the services provided by TLFs extends to

the types of injury treated , the decision to exclude care at

TLFs for non - traumatic injuries was arbitrary. Petitioner

presented competent, substantial evidence that the etiolo gy of

brain disorders makes little, if any, difference in either a

patientÓs deficits or their needs for rehabilitation. For

example, patients with both traumatic and non - traumatic brain

injury may have communication disorders, problems speaking , and

apha sias, and may require speech , language , and physical

therapy .

102. The Department offered no testimony as to the factual

basis for distinguishing between the causes of brain injury or

any rationale, other than its incorrect statutory

interpretation, for l imiting treatment at TLFs to patients with

traumatic injury.

103. Based upon the competent substantial evidence of

record, the challenged Rule is an invalid exercise of delegated

legislative authority because it exceeds and contravenes the law

implemente d and because it is arbitrary and capricious.

O RDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Florida Administrative Code Rule 64I -

1.005 constitutes an invalid exercise of delegated legislative

authority.

DONE AN D ORDERED this day of , , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 day of , .

ENDNOTES

1/ All citations to Florida Statutes are to the 2011 version

un less otherwise specified.

2/ The phrase Ða related health care facility which provides

specialized health care servicesÑ was replaced with Ða site

where specialized health care services are provided.Ñ When

licensure of TLFs was initiated, Ð a Related Hea lth Care Facility

homeÑ was defined as a Ðfacility for the aged, home for special

services, or other home as defined in rules and regulations of

the department. See § 400.021(12), Fla. Stat. (1989).

3/ Petitioner also contends the Rule is an unconstitut ional

impairment of contracts and an unconstitutional deprivation of

liberty or property without due process, prohibited by

Article I, Section 10 and Article I, Section 9, of the Florida

Constitution, respectively. DOAH is without authority to

determine t he constitutionality of an existing rule under the

Florida Constitution. See DepÓt of HRS v. Fla. Med. Ctr, NME

Hospitals, Inc. , 578 So. 2d 351, 355 (Fla. 1st DCA 1991).

4/ Similarly, this section charges the Department with the duty

to develop standard s for an emergency medical evacuation system

and standards for designation of rehabilitation centers to

provide needed services. See § 381.75(3) and § 381.75(4), Fla.

Stat.

5/ As part of the same rulemaking effort, the Department has in

fact promulgated rules addressing services to be provided to

persons eligible for the BSCIP. Florida Administrative Code

Rule 64I - 1.003 provides as follows:

64I - 1.003 Services.

(1) All Services must be directed specifically to an

individual Applicant or Eligible Indivi dual by prior

authorization of the General Program.

(2) Services can be delivered for an Applicant only to the

extent necessary to determine eligibility for the General

Program and for an Eligible Individual only to the extent

necessary to achieve subsect ion 64I - 1.002(2), F.A.C., closure.

(3) Services do not include:

(a) Upgrading, replacement or maintenance of a durable

medical device;

(b) Funding for consumables (those items for which the very

act of using destroys their further use), except in suppor t of

Services, and then for no more than twenty four (24) months

beginning with the first time such funding is authorized;

(c) Any required by a change in circumstances not directly

related to the Applicant or Eligible IndividualÓs brain or

spinal cord in jury and capable of repetition throughout their

life. Examples of changes in circumstances capable of

repetition include moving to another location, obtaining a

vehicle or, except in the case of an individual below the age of

eighteen, the loss of a careg iver; or

(d) Any requiring approval under federal law, such as human

subject research.

6/ The undersigned finds no precedent prohibiting extension of

this basic principle to cases, such as the instant case, where

the terms compared are found in differen t statutes rather than

different sections of the same statute.

7/ Setting aside the fact that 381.745 is not even the statute

cited as law implemented by the Rule.

COPIES FURNISHED :

Jay Adams, Esquire

Broad and Cassel

Post Office Box 11300

Tallahassee , Florida 32302

David K. Miller, Esquire

Broad and Cassel

Suite 400

215 South Monroe Street

Tallahassee, Florida 32302

Tiffany Amber Harrington, Esquire

Department of Health

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399

Erin Levingston, A gency Clerk

D epartment of H ealth

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399

Mr. Ken Plante, Coordinator

Joint Admin Proced Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399

(eServed)

Liz Cloud, Progra m Adm.

Administrative Code

Department of State

R.A. Gray Building, Ste. 101

Tallahassee, Florida 32399

(eServed)

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

D epartment of H ealth

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(850) 245 - 4321

(eServed)

Jennifer A. Tschetter, General Counsel

D epartment of H ealth

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(850) 245 - 4005

(eServed)

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 comm enced by

filing one copy of a Notice of 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 o f

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.