14-005121
Hernando-Pasco Hospice, Inc. vs.
Agency For Health Care Administration
Status: Closed
Recommended Order on Wednesday, March 11, 2015.
Recommended Order on Wednesday, March 11, 2015.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8HERNANDO - PASCO HOSPICE, INC.,
13Petitioner,
14vs. Case No. 14 - 5121
20AGENCY FOR HEALTH CARE
24ADMINISTRATION,
25Respondent,
26and
27COMPASSIONATE CARE HOSPICE OF
31THE GULF COAST, INC., AND WEST
37FLORIDA HEALTH, INC.,
40Intervenors.
41_______________________________/
42RECOMMENDED ORDER
44On January 20, 2015, a final administrative hearing was held
54in this case in Tallahassee, Florida, before Elizabeth W.
63McArthur , Administrative Law Judge, Divi s ion of Administrative
72Hearings (DOAH).
74APPEARANCES
75For Petitioner: Seann Frazier, Esquire
80Parker, Hudson, Rainer and Dobbs, LLP
86215 South Monroe Street, Suite 750
92Tallahassee, Florida 32301
95For Respondent: Richard Joseph Saliba, Esquire
101Agency for Health Care Administration
1062727 Mahan Drive , Mail Stop 3
112Tallahassee, Florida 3230 8
116For Intervenor Compassionate Care Ho spice of the Gulf
125Coast, Inc.:
127Geoff rey D. Smith, Esquire
132Corinne T. Porcher, Esquire
136Smith & Associates
1393301 Thomasville Road , Suite 201
144Tallahassee, Flori da 32308
148For Intervenor West Florida Health, Inc.:
154Stephen K. Boone, Esquire
158Boone, Boone, Boone, and Koda, P.A.
1641001 Avenida Del Circo
168Post Office Box 1596
172Venice, Florida 34284
175STATEMENT OF THE ISSUE
179The issue in this fixed need pool challenge is whether
189Respondent erred in determining that there is a numeric need for
200one additional hospice program in service area 5A.
208PRELIMINARY STATEMENT
210On Oct ober 3, 2014, the Agency for Health Care
220Administration (AHCA or Respondent) published the results of its
229fixed need pool calculations for the next certificate of need
239(CON) application batching cycle. The published fixed need pool
248for hospice programs sh owed a numeric need for one new program in
261service area 5A, Pasco County. Hernando - Pasco Hospice, Inc. (HPH
272or Petitioner), timely notified AHCA of an error allegedly made
282in the fixed need pool number for hospice service area 5A.
293According to HPH, proper application of AHCAÓs rule setting forth
303the numeric need methodology for hospice programs should have
312resulted in a fixed need pool number of zero instead of one, to
325indicate no need for any new programs in service area 5A.
336Thereafter, HPH timely filed a petition for a disputed - fact
347administrative hearing to contest AHCAÓs preliminary decision
354that the published numeric need for service area 5A was not
365erroneous and would not be corrected. AHCA forwarded the matter
375to DOAH for the assignment of an a dmin istrative l aw j udge to
390conduct the proceeding and issue a recommended order.
398Compassionate Care Hospice of the Gulf Coast, Inc. (CCH),
407and West Florida Health, Inc. (WFH) (collectively, Intervenors),
415timely filed motions to intervene to support AHCAÓs fixe d need
426pool determination, which were granted without objection.
433Prior to the scheduled final hearing, AHCA and Intervenors
442filed various motions to dismiss or relinquish jurisdiction,
450which were denied. AHCA and Intervenors also sought official
459recognit ion of an HPH motion to intervene in another fixed need
471pool challenge involving a different service area. They claimed
480HPHÓs allegations in the motion were inconsistent with HPHÓs
489positions in this case. Official recognition was denied because
498the issue s in the two cases were demonstrably different, and
509HPHÓs statements in the motion to intervene, standing alone, were
519not inconsistent with HPHÓs positions in this case.
527The parties filed a joint pre - hearing stipulation. To the
538extent relevant, the partie sÓ stipulations are adopted herein.
547At the hearing, the parties offered Joint Exhibits 1 through
5575, which were admitted. HPH presented the testimony of: Marisol
567Fitch, the recently appointed supervisor of AHCAÓs CON unit; and
577Jay Cushman, accepted as an expert in health planning with an
588emphasis in hospice programs. HPHÓs Exhibits 1 through 8, 11
598through 13, and 16 through 18 were admitted.
606AHCA presented additional testimony of Marisol Fitch, and
614AHCAÓs Exhibits A and B were admitted. CCH did not prese nt any
627additional witnesses; CCHÓs Exhibits 1 , and 6 through 9 were
637admitted. WFH did not present any witnesses or exhibits,
646adopting the presentations by AHCA and CCH.
653At the end of the hearing, the parties agreed to a ten - day
667deadline after the filing o f the transcript in which to file
679proposed recommended orders (PROs). The one - volume Transcript
688was filed on January 26, 2015. PetitionerÓs unopposed motion for
698an extension of the PRO deadline was granted. The parties timely
709filed PROs by the extended deadline, which have been considered
719in preparing this Recommended Order.
724FINDING S OF FACT
728A. The Parties
7311. HPH is a licensed provider of hospice services in
741service area 5A, Pasco County.
7462. AHCA is the state agency responsible for administering
755Flori daÓs CON program, by which AHCA determines whether there is
766a community need for regulated health care facilities and
775services as a prerequisite to licensure and operation.
7833. Intervenors CCH and WFH alleged in their motions to
793intervene that they are fil ing CON applications by which they
804will be seeking to fill the allegedly erroneous numeric need for
815one new hospice program in service area 5A. Their allegations
825are accepted as true. They were not disputed; instead, the
835parties stipulated to the legal c onclusion that follows from
845those alleged facts: that all parties, including Intervenors,
853have standing to participate in this proceeding.
860B. Nu meric Need and Evolution of the Fixed Need Pool Proce dure
8734. As part of its responsibilities under the CON l aws, AHCA
885is required to establish, by rule, uniform need methodologies for
895CON - regulated health facilities and services. Those need
904methodologies must take into account Ð the demographic
912characteristics of the population, the health status of the
921populati on, service use patterns, standards and trends,
929geographic accessibility, and market economics. Ñ £ 408.034(3),
937Fla. Stat. (2014). 1/
9415. Florida Administrative Code Rule 59C - 1.0355 codifies the
951uniform need methodology that applies to hospice programs. Th e
961numeric need methodology reflected in the current rule was
970adopted in 1995, and has remained essentially the same since that
981time. The rule defines 27 service areas, and AHCA uses the need
993methodology in rule 59C - 1.0355(4)(a) to calculate numeric need
1003f or hospice programs for each of the 27 service areas.
10146. AHCA accepts CON applications for new hospice programs
1023in batching cycles twice each year. Overall, the CON program has
1034four batching cycles annually; regulated facilities and services
1042are split up and assigned to alternating semi - annual batching
1053cycles. The timetable basis of the batching cycle was developed
1063by the Department of Health and Rehabilitative Services (HRS),
1072AHCAÓs predecessor, as a mechanism to allow for simultaneous
1081filing and compar ative review of competing CON applications. 2/
10917. The Ðfixed need poolÑ procedure was developed to address
1101problems sorting out comparative review rights, which were
1109described in the landmark decision , Gulf Court Nursing Center v.
1119Department of Health and Rehabilitative Services , 483 So. 2d 700
1129(Fla. 1st DCA 1985) ( Gulf Court ). 3/ Gulf Court held that in order
1144to stay true to the right to comparative review in the context of
1157the CON laws, HRS had to require that CON applications filed in a
1170batching cycle ha d to address a specific need projection, which
1181would be the ÐfixedÑ need pool applicable to that batching cycle.
1192Id. at 706 - 707.
11978. The first step towards creating a ÐfixedÑ need pool for
1208each batching cycle involved HRSÓs interpretation of its uniform
1217n eed methodology rules to require that the data plugged into the
1229calculation of numeric need had to be the data available at the
1241time the applications were filed and reviewed, rather than the
1251most recent data available at the time of an administrative
1261heari ng. In Meridian v. Department of Health and Rehabilitative
1271Services , 548 So. 2d 1169 (Fla. 1st DCA 1989), the court affirmed
1283an HRS decision on nursing home CON applications that turned on
1294HRSÓs interpretation of its bed need rule providing that Ðthe
1304thre e year projections of population shall be based upon the
1315official estimates and projections adopted by the Office of the
1325Governor.Ñ The court found Ðno error in HRSÓs decision that, for
1336purposes of determining the number of beds in the planning
1346horizon fi xed pool, [the rule] is properly construed to mean that
1358the population estimates adopted by the GovernorÓs office at the
1368time the initial applications were filed and reviewed must be
1378used, rather than the most recent estimates adopted by that
1388office at the time of the hearing[.]Ñ Id. T he court explained:
1400The logic of HRSÓ s position is unassailable.
1408It gives effect to the notion that, pursuant
1416to applicable principles of comparative
1421review, the number of beds in the fixed pool
1430. . . to which the applicant sÓ applications
1439were addressed (as shown by the formula)
1446would become set . . . for purposes of
1455comparative review, even though new data
1461coming to light in later months or years
1469might reflect a different bed need when
1476factored into the formula.
1480Id. at 1 170 - 1171.
14869. Over time, the interpretation approved in Meridian was
1495codified in the need methodology rules, by the addition of
1505language that set a specific cut - off time, at which point the
1518available data would be utilized. Taking the concept one step
1528fur ther, AHCA adopted a Ðfixed need poolÑ rule whereby before
1539each batching cycle, AHCA uses the data called for by its need
1551methodologies, runs the calculations, and publishes the resulting
1559Ðfixed need poolÑ numbers in what is now the Florida
1569Administrative Register . Fla. Admin. Code R. 59C - 1.008(2).
157910. AHCAÓs fixed need pool rule allows a ten - day window
1591following publication for any person Ðwho identifies an error in
1601the fixed need pool numbersÑ to advise AHCA of the error. If
1613AHCA agrees, it will make the correction and re - publish the fixed
1626need pool number(s). If AHCA disagrees, the fixed need pool
1636publication may be challenged in a proceeding such as this one,
1647but only by a party that timely advised AHCA of an error.
1659C. HPHÓs fixed need pool challe nge
166611. HPH timely advised AHCA of an alleged error in the
1677fixed need pool number published for service area 5A. HPH
1687contended that AHCA did not use the correct death data specified
1698in the rule methodology, and that had AHCA used the data required
1710by the rule methodology, AHCAÓs calculation would have resulted
1719in a fixed need pool of zero, meaning no numeric need for an
1732additional hospice program, in service area 5A. When AHCA
1741disagreed with HPHÓs contention, HPH timely filed its petition
1750for a disputed - fact administrative hearing.
175712. The fixed need pool for hospice service area 5A, as
1768determined in this proceeding, will ultimately govern AHCAÓs
1776decisions on CON applications filed in the October 2014 batching
1786cycle. When there is a numeric need for an additional program, a
1798CON application seeking to fill that need is generally
1807approvable. However, in the absence of numeric need for an
1817additional program, a CON application will not be approved unless
1827the applicant can demonstrate Ðspecial circumstances. Ñ
1834D. Numeric Need Methodology for New Hospice Programs
184213. AHCAÓs hospice need methodology is set forth in r ule
185359C - 1.0355(4)(a). Though lengthy and complicated, the current
1862rule methodology is set forth in its entirety below:
1871Numeric need for an addi tional H ospice program
1880is demonstrated if the projected number of
1887unserved patients who would elect a H ospice
1895program is 350 or greater. The net need for a
1905new H ospice program in a service area is
1914calculated as follows:
1917(HPH) - (HP) ϔ 350
1922where:
1923(HP H) is the projected number of patients
1931electing a H ospice program in the service area
1940during the 12 month period beginning at the
1948planning horizon. (HPH) is the sum of (U65C ×
1957P1) (65C × P2) (U65NC × P3) (65NC × P4)
1967where:
1968U65C is the projected num ber of service area
1977resident cancer deaths under age 65, and P1 is
1986the projected proportion of U65C electing a
1993Ho spice program.
199665C is the projected number of service area
2004resident cancer deaths age 65 and over, and P2
2013is the projected proportion of 65C e lecting a
2022H ospice program.
2025U65NC is the projected number of service area
2033resident deaths under age 65 from all causes
2041except cancer, and P3 is the projected pro -
2050portion of U65NC electing a H ospice program.
205865NC is the projected number of service area
2066res ident deaths age 65 and over from all
2075causes except cancer, and P4 is the projected
2083proportion of 65NC electing a H ospice program.
2091The projections of U65C, 65C, U65NC, and 65NC
2099for a service area are calculated as follows:
2107U65C = (u65c/CT) x PT
211265C = (65c/CT) x PT
2117U65NC = (u65nc/CT) x PT
212265NC = (65nc/CT) x PT
2127where:
2128u65c, 65c, u65nc, and 65nc are the service
2136areaÓs current number of resident cancer
2142deaths under age 65, cancer dea ths age 65 and
2152over, deaths under age 65 from all causes
2160except cancer, and deaths age 65 and over from
2169all causes except cancer.
2173CT is the service areaÓs current total of
2181resident deaths, excluding deaths with age
2187unknown, and is the sum of u65c, 65c, u6 5nc,
2197and 65nc.
2199PT is the service areaÓs projected total of
2207resident deaths for the 12 - month period
2215beginning at the planning horizon.
2220ÐCurrentÑ deaths means the number of deaths
2227during the most recent calendar year for which
2235data are available from the D epartment of
2243Health , Office of Vital Statistics at least 3
2251months prior to publication of the F ixed N eed
2261P ool .
2264ÐProjectedÑ deaths means the number derived by
2271first calculating a 3 - year average resident
2279death rate, which is the sum of the service
2288area resi dent deaths for the three most recent
2297calendar years available from the Department
2303of Health , Office of Vital Statistics at least
23113 months prior to publication of the F ixed
2320N eed P ool , divided by the sum of the July 1
2332estimates of the service area populatio n for
2340the same 3 years. The resulting average death
2348rate is then multiplied by the projected total
2356population for the service area at the mid -
2365point of the 12 - month period which begins with
2375the applicable planning horizon. Population
2380estimates for each ye ar will be the most
2389recent population estimates from the Office of
2396the Governor at least 3 months prior to
2404publication of the F ixed N eed P ool . The
2415following materials are incorporated by
2420reference within this rule; Department of
2426Health , Office of Vital St atistics Florida
2433Vital Statistics Annual Reports entitled
2438ÐDeathsÑ for 2012, 2011 and 2010, and Florida
2446Population Estimates and Projections by AHCA
2452District 2010 T o 2030, released September,
24592013. These publications are available on the
2466Agency website at http://ahca.myflorida.com/
2470MCHQ/CON_FA/Publications/index.shtml and
2472http://www.flrules.org/Gateway/reference.asp ?
2473No=Ref - 03907 .
2477The projected values of P1, P2, P3, and P4 are
2487equal to current statewide proportions
2492calculated as follows:
2495P1 = (Hu65c/Tu65 c)
2499P2 = (H65c/T65c)
2502P3 = (Hu65nc/Tu65nc)
2505P4 = (H65nc/T65nc)
2508where:
2509Hu65c, H65c, Hu65nc, and H65nc are the current
251712 - month statewide total admissions of H ospice
2526cancer patients under age 65, H ospice cancer
2534patients age 65 and over, H ospice patients
2542under age 65 admitted with all other
2549diagnoses, and H ospice patients age 65 and
2557over admitted with all other diagnoses. The
2564current totals are derived from reports
2570submitted under subsection (8) of this rule.
2577Tu65c, T65c, Tu65nc, and T65nc are the current
258512 - m onth statewide total resident deaths for
2594the four categories used above.
2599(HP) is the number of patients admitted to
2607H ospice programs serving an area during the
2615most recent 12 - month period ending on June 30
2625or December 31. The number is derived from
2633repor ts submitted under subsection (8) of this
2641rule.
2642350 is the targeted minimum 12 - month total of
2652patients admitted to a H ospice program.
265914. The hospice need methodology establishes the standard
2667that numeric need for a new hospice program exists when the
2678difference between projected hospice admissions and the current
2686admissions in a service area is equal to or greater than 350, but
2699when this difference is less than 350, no numeric need exists.
271015. The methodology codifies AHCAÓs policy choices for how
2719to project hospice admissions and over what period of time. The
2730rule selects two years as the appropriate planning horizon, so
2740that the methodology projects the number of hospice admissions
2749expected in the service area for the twelve - month period
2760begi nning two years after applications are filed.
276816. AHCAÓs policy judgments are reflected in the formulaÓs
2777details regarding what evidentiary data should be considered,
2785what values should be placed on the different categories of data,
2796and what relationship the separate categories of data should bear
2806to each other in calculating numeric need. The formula codifies
2816AHCAÓs judgments regarding how the following categories of data
2825should be used to project admissions: historic death data,
2834including numbers of d eaths, causes of death, and age at time of
2847death; population data, including current population numbers and
2855population projections for the planning horizon; and historic
2863admissions data, including numbers of hospice admissions,
2870diagnoses at admission, and age of admitted patients. The
2879formula also reflects AHCAÓs judgment regarding the significance
2887of comparative service area data and statewide data.
289517. The data ingredients used in the methodology include
2904the stateÓs official death statistics issued by the Department of
2914Health Office of Vital Statistics in its Florida Vital Statistics
2924Annual Reports, which provide aggregate numbers of deaths and
2933breakdowns by cause of death and age categories; the stateÓs
2943official population estimates and projections iss ued by the
2952Office of the Governor; and admissions data from semi - annual
2963reports that licensed hospices are required to submit to AHCA.
297318. Imbedded in the lengthy hospice need methodology rule
2982is language that defines the specific cut - off time at which the
2995data that is available will be used to calculate numeric need, as
3007has been provided in all of AHCAÓs uniform numeric need
3017methodology rules to codify the holding of Me ridian , supra .
3028Thus, where the methodology calls for use of ÐcurrentÑ deaths,
3038rule 59C - 1.0355(4)(a) has, at all times since the methodology was
3050adopted in 1995, provided as follows:
3056ÐCurrentÑ deaths means the number of deaths
3063during the most recent calendar year for
3070which data are available from the . . .
3079Office of Vital Statistics [4/] a t least 3
3088months prior to publication of the F ixed N eed
3098P ool.
310019. Similarly, the rule defines ÐprojectedÑ deaths as used
3109in the methodology, and identifies the population data to be used
3120in connection with projecting deaths. The current language, which
3129has remained materially unchanged since 1995, provides:
3136ÐProjectedÑ deaths means the number derived
3142by first calculating a 3 - year average
3150resident death rate, which is the sum of the
3159service area resident deaths for the three
3166most recent calendar years av ailable from the
3174. . . Office of Vital Statistics at least 3
3184months prior to publication of the F ixed N eed
3194P ool , divided by the sum of the July 1
3204estimates of the service area population for
3211the same 3 years. The resulting average
3218death rate is then multi plied by the
3226projected total population for the service
3232area at the mid - point of the 12 - month period
3244which begins with the applicable planning
3250horizon. Population estimates for each year
3256will be the most recent population estimates
3263from the Office of the Governor at least 3
3272months prior to publication of the F ixed N eed
3282P ool .
328520. The hospice need methodology uses a comparable cut - off
3296for hospice admissions data, which is the third data ingredient
3306used to calculate numeric need. The methodology defines c urrent
3316hospice admissions (HP) as Ð the number of patients admitted to
3327H ospice programs serving an area during the most recent 12 - month
3340period e nding on June 30 or December 31 [as] derived from reports
3353submitted under subsection (8)[.]Ñ While not expressed as a cut -
3364off counting backwards from the fixed need pool publication, the
3374same objective is achieved by the data submission deadlines,
3383which serve to define the most recent 12 - month period for which
3396data reports are available. Paragraph (8) of the hospic e rule
3407requires semi - annual reports by hospice providers, with reports
3417covering January through June each year due by July 20; and
3428reports covering July through December due by January 20. Thus,
3438for the October 3, 2014, published fixed need pool, the most
3449recent twelve - month period for which AHCA had admissions data
3460reports was July 1, 2013, through June 30, 2014. The data
3471reports through June 30, 2014, were due by July 20, 2014, two and
3484one - half months before the fixed need pool publication.
349421. The ru le methodology itself sets the standards for
3504numeric need for hospice programs. The methodology ingredients
3512are evidentiary facts -- actual death data and population numbers
3522from two different executive state offices, and actual admissions
3531data from hospice providers. The facts used to calculate need
3541are not themselves standards, specifications, or pol icies; they
3550have no independent significance or effect. Their significance
3558comes only from the methodology, which prescribes how the facts
3568are to be used to calculate need.
357522. The hospice rule remained the same from 1995, when the
3586current methodology was adopted, until 2009. In 2009, AHCA
3595amended the hospice need rule in reaction to the initiation of
3606two types of challenges -- one, a fixed need pool challen ge;
3618another, an unadopted rule challenge pursuant to section
3626120.56(4), Florida Statutes, neither of which were shown to
3635culminate in a final order on the merits. The 2009 amendment
3646added the following two sentences after the definitions of
3655ÐcurrentÑ deat hs, ÐprojectedÑ deaths, and population estimates:
3663The following materials are incorporated by
3669reference within this rule; Department of
3675Health Office of Vital Statistics Florida
3681Vital Statistics Annual Report 2007, Deaths,
3687and the Office of the Governor Fl orida
3695Population Estimates and Projections by AHCA
3701District 20 0 0 T o 20 2 0, released September,
371220 08 . These publications are available on the
3721Agency website at h ttp://ahca.myflorida.com/
3726MCHQ/CON_FA/index.shtml.
3727Since 2009, this provision has been amended three times to change
3738the dates of the referenced materials. At no time has the
3749referenced materials included the hospice admission reports used
3757as the third data ingredient to calculate need.
3765E. AHCAÓs calculation of numeric need for service area 5A
377523 . At issue in this fixed need pool challenge is whether
3787AHCA failed to follow its rule methodology, by failing to use the
3799correct data for ÐcurrentÑ deaths specified in the rule. By
3809extension, this dispute also implicates the correctness of data
3818used for ÐprojectedÑ deaths, which adds current deaths to the two
3829prior yearsÓ deaths to calculate a three - year average death rate.
384124. For ÐcurrentÑ deaths, AHCA utilized death data from the
38512012 Florida Vital Statistics Annual Report. For ÐprojectedÑ
3859deaths , AHCA utilized death data from the Florida Vital
3868Statistics Annual Reports for 2010, 2011, and 2012.
387625. Death data for calendar year 2013 were available from
3886the Department of Health Office of Vital Statistics by no later
3897than May 29, 2014, when the 201 3 Florida Vital Statistics Annual
3909Report was published and made available on the Department of
3919HealthÓs website. Thus, 2013 was the most recent calendar year
3929for which death data were Ðavailable fromÑ the Department of
3939Health Office of Vital Statistics at least three months -- indeed,
3950over four months -- before the fixed need pool publication on
3961October 3, 2014.
396426. AHCAÓs rule defines ÐcurrentÑ deaths as used in the
3974numeric need methodology in clear terms, by specifying the data
3984source and the cut - off time. The purpose of the three - month cut -
4000off time specified in the rule is to allow AHCA sufficient time
4012to obtain the data, plug the data into the numeric need
4023methodology, run the calculations, and publish the results. AHCA
4032had more than sufficient time to d o so in this case. AHCA should
4046have applied its rule as written, by using the 2013 death data.
405827. Had AHCA used the current death data defined by its
4069rule to calculate numeric need, the result for service area 5A
4080would have been zero numeric need. Thus , the failure to use
4091current death statistics, in the manner designed by the
4100methodology, in relation to current hospice admissions data and
4109population numbers, materially changed not only the resulting
4117need number, but also, the methodology itself. Inste ad of
4127considering 2013 death data in relation to hospice admissions for
4137July 2013 through June 2014, AHCA used older death statistics,
4147while still using the hospice admissions data for July 2013
4157through June 2014. The calculation does not reflect the valu es
4168and relationship of the different data types called for by AHCAÓs
4179policy, as set forth in the rule methodology. The fixed need
4190pool number of one new hospice program needed was an error.
4201F. AHCAÓs proffered interpretation of its hospice rule
420928. AHC A and Intervenors do not effectively refute the fact
4220that death data for calendar year 2013 were Ðavailable fromÑ the
4231Department of Health Office of Vital Statistics more than three
4241months before the publication of the fixed need pool, which is
4252the languag e of the rule. Instead, they argue that the data were
4265not Ðavailable toÑ AHCA to use to calculate the fixed need pool,
4277because they contend that AHCA is required pursuant to section
4287120.54(1)(i)1 . , Florida Statutes, part of the Administrative
4295Procedure Ac t (APA), to first incorporate the 2013 V ital
4306S tatistics Annual R eport in its rule before AHCA can use the
4319facts in that report to calculate numeric need.
432729. AHCA articulated its interpretation of its rule as
4336follows in the Joint PRO filed by AHCA and Int ervenors:
4347The Agency interprets Rule 59C - 1.0355(4)(a),
4354F.A.C., to require use of the death reports
4362specifically incorporated into the rule in
4368determining the meaning of ÐcurrentÑ deaths
4374used in the hospice fixed need pool
4381methodology. To the extent there is any
4388conflict between the ruleÓs requirement that
4394the Agency use the most current death data
4402available and the specific incorporation of
4408the 2012 death report, the Agency, based on
4416the statutory mandates of section
4421120.54(1)(i)1, F.S., interprets the rul e to
4428require the data expressly incorporated until
4434there is a formal modification by properly
4441enacted rule. The Agency reconciles the
4447ruleÓs definition of ÐcurrentÑ deaths, or the
4454number of deaths during the most recent
4461calendar year for which data are av ailable
4469from the Department of Health, Office of Vital
4477Statistics, at least three months prior to
4484publication of the Fixed Need Pool, with the
4492fact that the death data available to the
4500Agency is the death data specifically
4506incorporated by reference. (Jt. PRO at
451211 - 12).
451530. AHCAÓs proffered interpretation is contrary to the
4523clear words that it chose to use in its rule. It is neither
4536interpretation nor reconciliation to change the words Ðavailable
4544fromÑ the Office of Vital Statistics to Ðavailable toÑ A HCA. It
4556is neither reconciliation nor interpretation to ignore the ruleÓs
4565requirement to use the most current death data available from the
4576Office of Vital Statistics.
458031. AHCA does not contend that it added the incorporating
4590reference based on a belief that historic death data issued by
4601the Office of Vital Statistics meets the APAÓs definition of a
4612rule. Instead, AHCA explained that it added the references to
4622specific data reports to identify the data used to calculate the
4633fixed need pool and make it a vailable to those interested in
4645obtaining that data. Now, having added references to specific
4654data reports in its rule, AHCA contends that it does not matter
4666whether the data reports meet the definition of a rule; AHCAÓs
4677position is that it must update th e rule references before the
4689current data can be used.
469432. The position of AHCA and Intervenors assumes that the
4704hospice rule requires that the referenced vital statistics
4712reports must be used in lieu of the defined ÐcurrentÑ death data.
4724However, the ho spice rule simply does not say what AHCA and
4736Intervenors argue it says. The language chosen by AHCA in 2009
4747and left unchanged since then simply identifies specific data
4756reports, without stating how or when those reports may or must be
4768used. No operative ÐactionÑ words accompany the data report
4777references. Instead, the references are informational: here are
4785some reports and here is a way to obtain them.
479533. If in 2009, AHCA had rewritten its hospice rule to say
4807that for purposes of the methodology, Ðc urrentÑ deaths means
4817death data in the most recent Vital Statistics Annual Report that
4828has been promulgated by AHCA as a rule and incorporated in this
4840rule by reference, then the position of AHCA and Intervenors
4850would be well - taken, even if it would make n o sense to promulgate
4865death statistics -- historic, evidentiary facts -- as rules. But
4875AHCA clearly did not choose such a path.
488334. No evidence was presented to document the 2009
4892rulemaking process, such as the rulemaking record or
4900correspondence that AHCA may have submitted to the Joint
4909Administrative Procedures Committee to explain how it reconciled
4917the ÐcurrentÑ deaths definition with the incorporation of an
4926older Vital Statistics Annual Report. While CHC asked Ms. Fitch
4936whether the subject of the seemin g conflict between the two
4947provisions was discussed in the public hearing, Ms. Fitch
4956candidly responded that she did not know; she has only been at
4968AHCA since 2011. No testimony was offered by any witness with
4979knowledge. The reasonable inference, especia lly in the absence
4988of any contradictory evidence, is that AHCA purposefully chose to
4998leave intact the ruleÓs requirement to use ÐcurrentÑ death data,
5008as that term has been defined since 1995, and to simply add a
5021passive reference to specific data reports a s one way to inform
5033those interested in identifying the data reports used for the
5043fixed need pool calculations.
504735. AHCAÓs prior practice between 2009 and 2014 with regard
5057to the Vital Statistics Annual Reports adds credence to the view
5068that AHCA simply i ntended to offer the data reports as part of
5081its rule for informational purposes. Evidence of the rule
5090amendment history offered at hearing established that in 2009,
5099AHCA promulgated a rule amendment that incorporated by reference
5108the 2007 Vital Statistic s Annual Report. In 2010, AHCA
5118promulgated a rule amendment that changed the reference from the
51282007 report to the 2008 Vital Statistics Annual Report. In 2012,
5139AHCA promulgated a rule amendment that changed the reference from
5149the 2008 report to the 2010 Vital Statistics Annual Report. In
5160the most recent rule amendment adopted in April 2014, at the
5171suggestion of a public hearing participant AHCA left the
5180reference to the 2010 report, and added references to the 2011
5191and 2012 Vital Statistics Annual Repor ts. The language of these
5202references remained passive, in the same style used since 2009.
521236. AHCAÓs prior practice demonstrates that before this
5220case, AHCA never interpreted its rule to require use of only the
5232specific vital statistics reports that we re incorporated by
5241reference . T he hospice rule methodology requires AHCA to use
5252historic death data for three consecutive calendar years to
5261calculate ÐprojectedÑ deaths. Thus, twice each year in
5269calculating the fixed need pools, AHCA used at least two Vi tal
5281Statistics Annual Reports that were not incorporated by reference
5290in its rule. And to this day, AHCA has never incorporated by
5302reference the Vital Statistics Annual Report for 2009, yet the
5312death data in that report was used to calculate need for hosp ice
5325programs for three consecutive years.
533037. AHCAÓs prior practice of intermittently undergoing rule
5338promulgation to update the references to specific Vital
5346Statistics Annual Reports and only including some of the reports
5356actually used to calculate numer ic need, is consistent with the
5367view that the past reports have been adopted by reference for
5378informational purposes only.
538138. No explanation was offered as to why AHCA promulgated
5391references to only two of the three types of data reports used in
5404the hosp ice need methodology calculations. The failure to adopt
5414references to specific admissions reports would be inconsistent
5422with the asserted position that the APA requires AHCA to
5432promulgate as rules the data reports it uses to calculate need.
5443But the failu re to incorporate the hospice admissions reports as
5454rules would square with the notion that the purpose of the
5465passive references to the vital statistics and populatio n reports
5475is informational only. AHCA uses other means to make the hospice
5486admissions re ports available to interested persons .
549439. Interpreting the hospice ruleÓs reference s to specific
5503data reports as being for informational purposes only gives
5512effect to all of the rule language chosen by AHCA -- not only to
5526the part of the rule that identifi es specific reports (but does
5538not mandate their use), but also, to the unchanged parts of the
5550rule defining ÐcurrentÑ deaths and ÐprojectedÑ deaths as used in
5560the methodology. No other interpretation of these provisions was
5569suggested to give effect to all parts of AHCAÓs adopted rule.
5580G. HPHÓs unadopted rule argument
558540. AHCAÓs position asserted in this proceeding gives rise
5594to a problematic unadopted rule issue raised by HPH.
560341. AHCA contends that it is obligated under the APAÓs
5613rulemaking statute to incorporate by reference the specific data
5622reports it uses to calculate numeric need. AHCA contends that it
5633must undergo rule promulgation to add references to each annual
5643iteration of the official vital statistics report and the
5652official population repor t before the data in those reports can
5663be used. Leaving aside for now the fact that AHCAÓs rule does
5675not mandate use of the referenced reports and excludes references
5685to the third type of data report used for the need calculation,
5697AHCAÓs position creates a tremendous rulemaking burden. Issuance
5705of the death data and population data reports is not
5715synchronized; indeed, over the years, either or both annual
5724reports have not come out when expected.
573142. The facts in this case illustrate that point. When the
57422013 death data became available, HPH made AHCA aware of that
5753fact. Yet AHCA did not immediately begin rule promulgation in
5763May 2014, when it could have done so.
577143. In October 2014, AHCAÓs response to HPHÓs error notice
5781with regard to the service area 5A fixed need pool was twofold:
5793first, AHCA disagreed that it should have used the 2013 death
5804data available from the Office of Vital Statistics, because AHCA
5814claimed it was required under the APA to amend its rule first
5826before using the current death dat a; but second, AHCA had decided
5838not to proceed with rulemaking right away, because it wanted to
5849await the new population report from the Office of the Governor
5860so that it could update both reports in one promulgation process.
587144. At hearing, AHCA explaine d that it was not pronouncing
5882a ÐpolicyÑ that it would always await the population report
5892before beginning rule promulgation. Once again, AHCAÓs prior
5900practice is illuminating, because AHCA has undertaken rule
5908promulgation approximately every other year, to update the
5916references to the two annual data reports in tandem.
592545. AHCA characterized the decision to delay promulgation
5933as a Ðcase - by - caseÑ decision based on a variety of factors. The
5948facts identified were that the population report was not yet
5958avai lable, and that AHCA had just finished its last promulgation
5969go - round in April 2014.
597546. The very fact that AHCA has determined that it may
5986choose to undergo rulemaking or to delay rulemaking, and that it
5997will make its decision on the basis of administrat ive convenience
6008factors, is either an agency statement of general applicability,
6017prescribing the agencyÓs rulemaking practice or procedure in ways
6026that are different from what any statute or rule provides, or it
6038is AHCAÓs confirmation that updating the dat a report references
6048in its rule is inconsequential.
605347. AHCAÓs position that it must undergo rulemaking before
6062using the most recent facts to calculate its fixed need pools is
6074one that creates the urgency to undergo and complete rulemaking.
6084AHCAÓs admini strative convenience would not be a reason to not
6095expeditiously promulgate rules, if indeed AHCA were correct that
6104rulemaking is required. The APA would dictate that AHCA proceed
6114as soon as practicable and feasible. If AHCA maintains that it
6125must promulg ate facts as rules and updated facts as amended
6136rules, then AHCAÓs position dictates that AHCA necessarily must
6145be in endless rulemaking for that purpose.
615248. Anticipating this, AHCA asserted that its delay was
6161justifiable because AHCA did not think it wa s Ðpracticable or
6172feasibleÑ to complete the rulemaking process by the October 3 ,
61822014, fixed need pool publication date. However, whether AHCA
6191could have completed the process would not be the question asked
6202by the APA if rulemaking was required; the issu e would be why it
6216was not practicable or feasible for AHCA to initiate rulemaking.
6226Moreover, AHCAÓs reasoning in this regard was not persuasive;
6235while AHCAÓs prior rulemaking timelines sometimes were longer
6243than four months , those timelines included a n in ternal routing
6254and review process, which would not be necessary if the sole
6265rulemaking activity were to update a reference to a data report.
627649. The picture got worse by the time of hearing: as of
6288January 20, 2015, AHCA was still waiting for the new pop ulation
6300report from the Office of the Governor, and AHCA still had not
6312begun rulemaking. AHCAÓs unadopted statement that it can choose
6321not to proceed expeditiously to rule promulgation, while at the
6331same time asserting that rule promulgation is required, would
6340doom at least two batching cycles to stale 2012 death data; the
6352next fixed need pool publication date is just around the corner.
636350. It appears that AHCA has not thought through
6372sufficiently the ramifications of its position. As HPHÓs expert
6381reason ably explained, important health planning objectives are
6389served by considering the most current data possible. AHCAÓs
6398uniform need methodology rules require AHCA to use the most
6408current data possible to calculate numeric need, compromised only
6417by the dict ates of Gulf Court , as recognized in Meridian . Gulf
6430Court and Meridian acknowledge that it is necessary to make some
6441sacrifice in the health planning objectives served by using the
6451most current data possible, in order to achieve a process tha t
6463ensures fai rness to applicants entitled to comparative review.
6472This balance has been achieved by cutting off the opportunity to
6483use the most recent data as evidence in administrative hearings,
6493and mov ing up the time for collecting the facts used to calculate
6506need. It is one thing to carry out the fixed need pool process
6519by providing a cut - off point for collecting the data used to
6532calculate need; it is another matter entirely to suggest that the
6543fixed need pool process somehow transforms evidentiary facts into
6552statem ents of policy that have to be promulgated as rules. But
6564if that is AHCAÓs position, AHCA cannot choose for reasons of
6575administrative convenience to not move forward immediately to
6583promulgate the new facts as rules.
658951. When AHCAÓs representative was ask ed whether it was
6599important to use the most current data possible when calculating
6609numeric need under the hospice methodology, her response was that
6619Ðwe donÓt go with importance. We go with whatÓs incorporated.Ñ
6629(Tr. 31). However, the hospice need metho dology serves as AHCAÓs
6640expression of the importance of using ÐcurrentÑ death data,
6649tempered only by the need for a cut - off point t hat gives AH C A
6666enough time to collect the data, calculate need, and publish the
6677fixed need pool.
668052. AHCA carries out its im portant health planning policies
6690to use current data as the ingredients to calculate numeric need
6701pursuant to its other uniform need methodologies . For example,
6711the neonatal intensive care bed need rule methodology uses birth
6721statistics like the hospice r ule uses death statistics that are
6732available from the Office of Vital Statistics as of a specified
6743cut - off time before the fixed need pool publication . See Fla.
6756Admin. Code R. 59C - 1.042(3). And that rule, as well as AHCAÓs
6769other uniform need methodology rules, use population estimates
6777issued by the Office of the Governor as of a specified cut - off
6791time before the fixed need pool publication. Id. ; see also Fla.
6802Admin. Code R. 59C - 1.036(3)(c) (nursing facility bed need rule);
681359C - 1.039(5)(c) (comprehensive medical rehabilitation inpatient
6820bed need rule). None of AHCAÓs other need rules incorporate any
6831data reports by reference. AHCAÓs representative testified that
6839because the other rules do not incorporate data reports by
6849reference, AHCA uses the most curr ent data available as of the
6861cut - off time specified in each rule to calculate numeric need for
6874the fixed need pool publication.
687953. AHCAÓs representative acknowledged that there is
6886no thing in the CON laws requiring AHCA to promulgate death
6897statistics or p opulation data as rules, or to incorporate data
6908reports by reference. Thus, AHCAÓs proffered interpretation of
6916its hospice need rule (see Finding of Fact ¶ 29) is borne solely
6929of AHCAÓs understanding of what the APA requires.
693754. AHCAÓs representative testified that AHCA is
6944considering overhauling all of its need rules and adopting
6953another rule that will serve only as the repository to
6963incorporate by reference all data reports (presumably including
6971admissions reports) used in all need methodologies. Bu t AHCA has
6982not taken any formal steps in this direction yet. Interestingly,
6992AHCAÓs representative acknowledged that a ÐruleÑ cataloging and
7000incorporating by reference the data reports used in AHCAÓs need
7010methodologies would not have any policy implication s.
7018CONCLUSIONS OF LAW
702155 . T he Division of Administrative Hearings has
7030jurisdiction over the parties to and subject matter of this
7040proceeding . §§ 120.569 and 120.57(1), Fl a. Stat.
704956. AHCAÓs preliminary fixed need pool determination for
7057hospice service area 5A, timely challenged by HPH, is the proposed
7068agency action at issue in this proceeding.
707557. As an existing hospice provider in service area 5A, HPH
7086is a candidate for party status to oppose a CON application to
7098establish a new hospice program in se rvice area 5A. See
7109£ 408.039(5)(c), Fla. Stat. HPHÓs substantial interests are
7117adversely affected by AHCAÓs fixed need pool publication showing a
7127numeric need for one new hospice program in service area 5A. As
7139the parties stipulated, HPH has standing.
714558. Intervenors are potential applicants seeking to
7152establish a new hospice program in service area 5A. The prospect
7163for approval of one of the applications would be greatly enhanced
7174if HPHÓs challenge to the fixed need pool does not succeed. As
7186the pa rties stipulated, Intervenors have standing.
719359. HPH has the burden of proving by a preponderance of the
7205evidence that AHCA made an error in the published fixed need pool
7217of one new hospice program needed in service area 5A for the
7229second batching cycle of 2014. See generally B alino v . DepÓt of
7242Health & Rehab. Servs. , 348 So. 2d 349 , 350 (Fla. 1st DCA 19 77 );
7257§ 120.57(1)(j), Fla. Stat.
726160. The premise of HPHÓs challenge to the fixed need pool
7272number is that AHCAÓs need calculation failed to apply the te rms
7284of the hospice numeric need methodology rule, because AHCA did
7294not use 2013 death data where the methodology calls for ÐcurrentÑ
7305deaths. According to the clear dictate of the rule, the term
7316ÐcurrentÑ deaths as used in the methodology Ðmeans the number of
7327deaths during the most recent calendar year for which data are
7338available from the Department of Health , Office of Vital
7347Statistics at least 3 months prior to publication of the F ixed
7359N eed P ool. Ñ Fla. Admin. Code R. 59C - 1.0355(4)(a).
737161. HPH proved th at 2013 is the most recent calendar year
7383for which death data were Ðavailable from the Department of
7393Health , Office of Vital Statistics at least 3 months prior to
7404publication of the F ixed N eed P ool.Ñ Death data for calendar
7417year 2013 were available from t hat Office by May 29, 2014, more
7430than four months prior to the fixed need pool publication.
744062. As a threshold matter, AHCA and Intervenors argue that
7450either HPHÓs challenge is not cognizable in a fixed need pool
7461challenge, or that there are no disputed i ssues of material fact
7473and that DOAH should have relinquished jurisdiction to AHCA to
7483resolve pure legal issues.
748763. A fixed need pool challenge may properly be predicated
7497on an argument that AHCA did not properly apply its need
7508methodology rule in calcul ating numeric need. See, e.g. , Hospice
7518of Lake & Sumter , Inc. v. Ag . for Health Care Admin . and Hope
7533Hospice and Commun ity Serv s . v. Ag . for Health Care Admin . ,
7548Consolidated Case Nos. 08 - 6215 and 08 - 6218 (DOAH Order
7560Relinquishing Jurisdiction, Feb. 2, 200 9) ( Lake and Hope ) , at 9
7573(fixed need pool challenge is proper when based on an alleged
7584misapplication of the hospice need methodology or an alleged
7593failure to update population data from a previous batching
7602cycle); accord Big Bend Hospice v. Ag. for Health Care Admin. ,
7613Case No. 01 - 4415 (Fla. DOAH Nov. 7, 2002; AHCA April 8, 2003),
7627affÓd , 904 So. 2d 610 (Fla. 1st DCA 1995). HPHÓs challenge falls
7639within these parameters, and is proper.
764564. The argument that DOAH should have relinquished
7653jurisdiction becaus e of a lack of disputed material facts was
7664advanced repeatedly before, during, and after hearing. AHCA and
7673Intervenors attempted to characterize HPHÓs challenge as one that
7682only raises legal issues that are, in effect, attacks on AHCAÓs
7693hospice need rule. However, AHCA disputed HPHÓs allegation that
77022013 death data were available from the Office of Vital
7712Statistics. A s is evident from the Findings of Fact above, HPHÓs
7724challenge is directed not to the rule itself, but to the
7735convoluted interpretation prof fered by AHCA and Intervenors in an
7745attempt to reconcile seemingly conflicting parts of the rule.
7754See Finding of Fact ¶ 29.
776065. As a general proposition, AHCAÓs interpretation of its
7769rule s is entitled to great weight and deference, particularly
7779where the interpretation is borne of the agencyÓs construction of
7789the statutes administered by the agency . See, e.g. , Lakeland
7799RegÓl Med. Ctr. v. Ag. for Health Care Admin. , 917 So. 2d 1024,
78121029 (Fla. 1st DCA 2006).
781766. To the extent AHCAÓs proffered interpreta tion is not
7827evident from the language of its rule or discoverable precedents,
7837AHCAÓs interpretation is subject to proof by expert testimony,
7846documentary opinions, or other evidence appropriate to the nature
7855of the issue involved, and AHCA must expose and e lucidate the
7867reasons for its actions with competent, substantial evidence on
7876record. See, e.g . , Courts v. Ag. for Health Care Admin. , 965 So.
78892d 154, 157 (Fla. 1st DCA 2007); Brookwood - Walton Cnty. Conv .
7902Ctr. v. Ag. for Health Care Admin. , 845 So. 2d 223, 229 (Fla. 1st
7916DCA 2003). Thus, the reasonableness of AHCAÓs proffered
7924interpretation of its hospice rule (see Finding of Fact ¶ 29),
7935not evident from the rule language or precedent , is a factual
7946matter for determination. Further, to the extent AHCAÓs
7954pr offered interpretation is inconsistent with its prior practice,
7963the reasonableness of AHCAÓs explanation for the inconsistencies
7971is also a factual matter for determination based on the evidence .
7983§ 120.68(7)(e) 3 . , Fla. Stat.
798967. The general deference affo rded to an agencyÓs
7998interpretation of its rules is not without limit , even when the
8009interpretation is based on statutes over which the agency has
8019substantive jurisdiction . Thus, whe n an agencyÓs interpretation
8028of its rule is contrary to the words used in the rule, the agency
8042properly is held to the Ðrule as written, and not as [the agency]
8055has seen fit to modify it.Ñ Boca Raton Art ificial Kidney Ctr. v.
8068DepÓt of Health & Rehab. Servs. , 493 So. 2d 1055, 1057 (Fla. 1st
8081DCA 1986) (where a CON need rule adopt ed a planning horizon of
8094one year from when the CON application was completed, HRS could
8105not change the rule by re - interpreting it to mean one year from
8119the final hearing); Vantage Healthcare Corp. v. Ag. for Health
8129Care Admin. , 687 So. 2d 306 (Fla. 1st DC A 1997) (AHCA is required
8143to follow its rules; agency action that conflicts with the
8153agencyÓs own rules is erroneous).
815868. Where, as here, an agency has adopted clear rule
8168language that has been interpreted and applied by the agency in
8179accordance with the clear words in the rule, the agency may not
8191simply change its interpretation of the rule language. Instead,
8200the words must be applied as written and as interpreted unless
8211and until the words in the rule are changed. Id. ; Cleveland
8222Clinic Fla. Hosp. v. A g. for Health Care Admin. , 679 So. 2d 1237 ,
82361242 (Fla. 1st DCA 1996).
824169. AHCAÓs hospice need rule defines ÐcurrentÑ deaths in
8250language that is clear and that has remained unchanged since
8260first codified in 1995. The plain language of the current deaths
8271d efinition in the hospice rule requires AHCA to use the 2013
8283death data to calculate numeric need. Lake and Hope , supra , at
82949 ; Big Bend Hospice , supra .
830070. AHCA and Intervenors contend that AHCAÓs use of old
8310(2012) death data was consistent with the hospi ce ruleÓs
8320definition of ÐcurrentÑ deaths, because 2013 death data were not
8330Ðavailable toÑ AHCA to use. But that is not what the rule says.
8343AHCAÓs rule requires the use of the 2013 death data because the
83552013 data were available from the Office of Vital S tatistics
8366before the specified cut - off. The language chosen by AHCA for
8378its rule is Ðavailable fromÑ the Office of Vital Statistics, not
8389Ðavailable toÑ AHCA. AHCAÓs interpretation requires a re - writing
8399of the rule that is not permissible.
840671. AHCA and I ntervenors argue that the 2009 amendment to
8417the hospice rule to add references to specific data reports
8427requires AHCA to promulgate rule amendments incorporating each
8435new data report before the data can be used to calculate numeric
8447need. This argument fai ls on multiple levels.
845572. First, the rule, as amended in 2009 and three times
8466thereafter to its current form, simply does not say that AHCA
8477must use the referenced data reports to calculate numeric need.
8487Instead, the rule continues to provide that where the methodology
8497calls for ÐcurrentÑ deaths, that means the death statistics for
8507the most recent calendar year for which data are available from
8518the Office of Vital Statistics at least three months prior to the
8530fixed need pool publication.
853473. In this reg ard, it does not matter whether AHCA and
8546Intervenors offer a reasonable or correct interpretation of the
8555APAÓs requirements for incorporation by reference. If the APA
8564requires that an agency adopt a rule providing ÐX,Ñ but the
8576agencyÓs rule provides ÐCÑ i nstead, the agency cannot through
8586interpretation simply construe ÐCÑ to mean ÐX.Ñ Thus, even if
8596the APA required AHCA to rewrite its rule to say that ÐcurrentÑ
8608deaths means death statistics in the most recent vital statistics
8618report that is incorporated b y reference in this rule, AHCA would
8630have to actually rewrite the rule to say that. The rule does not
8643say that now, and cannot be made to say that through
8654Ðinterpretation . Ñ
865774. The argument by AHCA and Intervenors also fails with
8667regard to its essential predicate that the APA requires AHCA to
8678incorporate by reference as part of its hospice need rule
8688historic death data disseminated pursuant to statutory mandate by
8697the Office of Vital Statistics. The APA does not require
8707agencies to promulgate facts as ru les. The APA does not require
8719agencies to promulgate historic data as rules. Instead, the rule
8729promulgation requirement is framed in the following manner in
8738section 120.54(1)(a), Florida Statutes: Ð Each agency statement
8746defined as a rule by s. 120.52 sh all be adopted by the rulemaking
8760procedure provided by this section as soon as feasible and
8770practicable. Ñ
877275. Section 120.52(16) defines ÐruleÑ to mean
8779e ach agency statement of general
8785applicability that implements, interprets, or
8790prescribes law or policy or describes the
8797procedure or practice requirements of an
8803agency and includes any form which imposes
8810any requirement or solicits any information
8816not specifically required by statute or by an
8824existing rule. The term also includes the
8831amendment or repeal o f a rule.
883876. Incorporation by reference is a mechanism by which
8847material that meets the definition of a rule can be promulgated
8858as a rule by reference, so as to not have to set forth the
8872material itself within the text of the rule. Thus, the
8882Ð rule makin g proceduresÑ referred to in section 120.54(1)(a), by
8893which agency statements must be adopted as rules, include section
8903120.54(1)(i)1. , which provides: Ð A rule may incorporate material
8912by reference but only as the material exists on the date the rule
8925is a dopted. For purposes of the rule, changes in the material
8937are not effective unless the rule is amended to incorporate the
8948changes. Ñ 5/ This statutory language is not new, nor was it new
8961when the hospice rule was amended in 2009; at that point it had
8974been on the books, without change, for well over a decade.
898577. The limitation on incorporating material by reference
8993as the material exists when the rule is adopted is consistent
9004with the notion that when standards outside of a law or rule are
9017incorporated b y reference, it is as if the legislative or
9028administrative body were adopting those standards as its law or
9038rule. When the incorporated standards are later changed outside
9047of the legislative or rulemaking process , those changed standards
9056are not the ones that the legislative or administrative body
9066adopted. If the legislative or administrative body wants to
9075adopt the changed standards as part of its law or rule , it must
9088specifically incorporate the changed standards through the formal
9096promulgation process . Otherwise, the legislative or
9103administrative body would be unco nstitutionally or unlawfully
9111adopt ing standards as a law or rule without going through the
9123required procedures .
912678. It was difficult to find any administrative or
9135appellate cases involving a nything remotely like the issue
9144presented here. Virtually all of the cases that consider
9153material incorporated by reference as a rule involve
9161incorporative references of substantive standards,
9166specifications, or policies that are required to be used as th e
9178governing standards by the incorporating law or rule.
918679. For example, AHCA and Intervenors cite to the recent
9196Final Order in Peek v. State Board of Education , Case No. 12 -
92091111RP (Fla. DOAH Aug. 22, 2012), in which Judge John G. Van
9221Laningham invalidate d a proposed rule establishing procedures and
9230standards governing submission and review for approval of each
9239school districtÓs evaluation systems for instructional personnel
9246and school administrators. Judge Van LaninghamÓs thorough
9253analysis determined tha t the proposed rule failed to comply with
9264the APAÓs requirements for incorporative references. The
9271proposed rule required submission of the evaluation systems on a
9281checklist form that was incorporated by reference , and t he
9291proposed rule specified that the submissions would be judged for
9301compliance with the elements in the checklist. The checklist had
9311Ðconsiderable prescriptive contentÑ with Ðdozens of mandatory
9318elements.Ñ In five instances, the checklist mandated that
9326submissions meet standards or requir ements that were set forth in
9337external documents. As such, the checklist that would be
9346incorporated by reference in the proposed rule did not itself set
9357forth all of the requirements, but rather, referred to another
9367level of external material that imposed additional standards.
937580. In Peek , Judge Van Laningham discussed the
9383incorporation by reference method of rulemaking, quoting with
9391approval the following excerpt from an article written by now -
9402Administrative Law Judge F. Scott Boyd, Looking Glass Law:
9411Le gislation by Reference in the States, 68 La. L. Rev. 1201 , 1210
9424(2008)("Legislation By Reference") :
9430A reference is incorporative if its effect is
9438to adopt the standards, requirements, or
9444prohibitions of the referenced material as
9450its own standards, require ments, or
9456prohibition. An incorporative reference
9460occurs whenever legislation references
9464material outside of itself and indicates
9470expressly or by implication that this
9476material should be treated as if it were
9484fully set forth at that point in the
9492legislati on. The requirements of the
9498referenced material are then said to be
9505Ð incorporated into Ñ or Ð adopted into Ñ the
9515legislation that adopted them, without the
9521necessity of printing the text verbatim.
952781. In contrast to an Ðincorporative referenceÑ that
9535impos es standards, requirements, or prohibitions in material that
9544is adopted as if fully se t forth , Judge BoydÓs Legislation By
9556Reference described a different kind of reference to external
9565material in legislation (defined broadly for purposes of his
9574article to include administrative rules) :
9580A legislative reference is termed
9585ÐinformationalÑ if its only effect is to alert
9593the reader to the existence of additional
9600information or other material that might be of
9608interest. An informational reference
9612therefore neithe r affects the material to
9619which it refers nor is in any way affected by
9629it. [ ] In one sense, then, informational
9637references have no real legal effect at all.
9645Id. at 1205 (footnote omitted).
965082. The description of Ðinformational referencesÑ i n
9658Legislat i on By Reference i s fitting here ; the description of
9670Ðincorporative referencesÑ does not fit . Death data in official
9680Vital Statistics Annual Reports do not constitute standards,
9688requirements, or prohibitions. The data reports are not
9696referenced because t hey have ÐlegalÑ e ffect in the sense of
9708establishing standards , requirements, or prohibitions . One need
9716only imagine a hospice need methodology rule containing actual
9725death statistics for past calendar years for 27 different service
9735areas -- the number of d eaths in total, the causes of death, and
9749the age categories -- to realize the absurdity of the suggestion
9760that death statistics are the sort of material that the APA
9771requires to be adopted as rules . Instead, the annual reports
9782with death statistics contain historic, evidentiary data.
9789Indeed, AHCAÓs explanation for referencing the rep orts in the
9799rule in 2009 fits the purpose of an informational reference : to
9811alert the reader to material that might be of interest.
982183. AHCA and Intervenors offer several admi nistrative
9829orders providing that material incorporated by reference was
9837binding as a rule. Each of these administrative orders involve s
9848a true incorporative reference as described by Judge Boyd in
9858Legislation By Reference . In each of the cited proceeding s, the
9870material incorporated by reference and deemed binding as a rule
9880set forth standards or requirements. None of them involve
9889informational references to factual data. Moreover, the
9896incorporative reference in the rule made clear that the issue at
9907hand would be addressed by reference to requirements in the
9917incorporated material. Thus, for example, in Parkinson v. Reily
9926Enterprises, LLC and Department of Environmental Protection , Case
9934No. 06 - 2842 (Fla. DOAH Feb. 12, 2007), the Department of
9946Environmenta l Protection (DEP) adopted a rule that provided for
9956delegation of authority under a particular permitting program to
9965water management districts Ðas set forth inÑ DEPÓs interagency
9974operating agreements with the water management districts, which
9982were incorpo rated by reference in DEPÓs rule. Accordingly, DEP
9992was bound by the terms of an operating agreement with a water
10004management district, incorporated by reference in the rule, which
10013set forth the details of DEPÓs delegation of authority.
10022Similarly, in Outloo k Media v. Department of Transportation , Case
10032No. 09 - 3444 (Fla. DOAH Aug. 11, 2010), a statute required that
10045applications for outdoor advertising permits must be made on a
10055form prescribed by the Department of Transportation (DOT). DOT
10064promulgated a rule r equiring submittal of applications on a form
10075that was incorporated by reference. The form set forth
10084requirements that must be met by the applicant. In that context,
10095an applicantÓs failure to comply with a requirement imposed by
10105the application form was d eemed a failure to comply with DOTÓs
10117rule. Finally, in McCarty v. D epartment of Corrections , Case No.
1012890 - 5311BID (Fla. DOAH Jan. 3, 1991), the DepartmentÓs rule
10139required that bid proposals be submitted on a form setting forth
10150bid specifications, which was incorporated by reference in the
10159rule. When a bidder failed to comply with specifications in the
10170form, the bid was deemed non - responsive, because the Department
10181was bound by the specifications incorporated by reference.
1018984. The only case found in which the APAÓs requirements for
10200incorporation by reference were squarely addressed in the context
10209of references in rules to data was Lane v. Department of
10220Environmental Protection , Case Nos. 01 - 1332RP et al. (Fla. DOAH
10231May 13, 2002), affÓd , per curiam , Case No . 1D02 - 2043 (Fla. 1st
10245DCA, May 20, 2003). In Lane , Judge Stuart M. Lerner issued a
10257468 - page Final Order comprehensively addressing eight
10265consolidated challenges to DEPÓs proposed rules that described
10273how DEP would exercise its authority to identify and li st s urface
10286waters in the state that are impaired for purposes of the state's
10298total maximum daily load . At pages 388 to 392, Judge Lerner
10310addressed a challenge to a proposed provision that federal STORET
10320data Ðwill be the Òprimary source of data used for d etermining
10332water quality criteria exceedances [.] Ó Ñ Petitioners contended
10341that the reference to STORET data violated the APAÓs requirements
10351for incorporating material by reference . Judge Lerner disagreed:
10360To the extent Joint Petitioners allege . . .
10369that the proposed rule chapterÓs reference to
10376STORET is in violation of the requirement of
10384[section 120.54(1)(i) 1. ], that Ð[a] rule may
10392incorporate material by reference . . . only
10400as the material exists on the date the rule
10409is adopted,Ñ the argument is unpersu asive.
10417Through its reference to STORET, the
10423Department is not incorporating in the
10429proposed rule chapter any standard - setting
10436ÐmaterialÑ as that term is used in [section
10444120.54(1)(i) 1. ]. The Department is simply
10451explaining where the data it will consider in
10459determining Ðwater quality criteria
10463exceedancesÑ will come from. Even though
10469some of the data may not now exist, there is
10479nothing in [section 120.54(1)(i) 1. ]
10485prohibiting the Department from giving such
10491an explanation in the proposed rule chapter.
10498Id. at 389. Judge Lerner proceeded to summarize decisional law
10508explaining when legislation is incorporating substantive
10514standards in referenced materials, so as to require that the
10524materials be in existence at the time of the legislation and to
10536require that changes to the incorporated materials not be given
10546legal effect witho ut a corresponding amendment to the law
10556incorporating the materials by reference. In contrast, when
10564legislation references data instead of substantive standards,
10571the same restrictions do not apply.
1057785. One of the key cases relied on by Judge Lerner is
10589Eastern Air Lines, Inc. v. Department of Revenue , 455 So. 2d 311
10601(Fla. 1984). Judge Lerner quoted the following passage in
10610Eastern Air Lines , which is equally instructive here:
10618In Welch t his Court looked to the rule of law
10629announced in Freimuth v. State , 272 So. 2d 473
10638(Fla. 1972). There, the Court said that the
10646legislature may adopt provisions of federal
10652statutes and administrative rules made by a
10659federal administrative body that are in
10665existence and in effect at the time the
10673legislature acts, but it would be an
10680unconstitutional delegation of legislative
10684power for the legislature to adopt in advance
10692any federal act or the ruling of any federal
10701administrative body that Congress or an
10707admin istrative body might see fit to adopt in
10716the future. 272 So. 2d at 476. Accordingly,
10724this Court held the statute unconstitutional
10730for attempting to incorporate by reference
10736future legislative and/or administrative
10740actions of jurisdictions outside Florida . Id.
10747We believe that Eastern's reliance on the
10754aforementioned language is misplaced. The
10759statute under attack merely provides that an
10766adjustment be made to the fuel price which is
10775based on the percentage change in the average
10783monthly gasoline price c omponent of the
10790Consumer Price Index. Here, the legislature
10796is merely setting forth the manner in which
10804the department is to determine the appropriate
10811total motor fuel and special fuel retail
10818price. The department is directed with
10824precision how to make s uch a determination.
10832We think the language of Welch a nd Freimuth
10841should be interpreted to apply to statutes
10848which incorporate federal statutes or
10853administrative rules which substantively
10857change the law, and not to a statute which
10866incorporates a federal in dex to provide aid in
10875making a ministerial determination.
10879Furthermore, we do not agree with Eastern's
10886contention that the statute is also
10892constitutionally infirm because the Department
10897of Revenue will utilize a consumer price index
10905which is to be determin ed after the effective
10914date of the act. In Gindl we upheld a
10923statutory provision which required a
10928computation based on the most recent
10934publication of the Florida Price Level Index
10941prepared by the Department of Administration.
10947The statute was to take effe ct July 1, 1976.
10957The Department of Education intended to base
10964the distribution on a survey which would be
10972started in October or November of 1976 and
10980completed during the early part of 1977. In
10988other words, the effect of the statute was to
10997reach forward a nd allow distribution to be
11005calculated on the most recent publication of
11012the Florida Price Level Index, an index which
11020was not in existence when the law became
11028effective. We agree with the circuit court's
11035determination that the method of a ppropriation
11042in chapter 83 - 3 is equivalent to the method
11052approved in Gindl .
11056Id. at 315 - 316.
1106186. The analyses in Lane and Eastern Air Lines apply here.
11072They confirm that AHCA is not required to undergo rule
11082promulgation every time new data reports are issued by the
11092Off ice of Vital Statistics in order to apply that data to the
11105standard - setting need methodology. The death data in those
11115reports are facts, and are not themselves standards having the
11125force and effect of law. As such , the references in the hospice
11137need rule must be considered informational references . As Judge
11147Lerner determined, such references are not prohibited by the
11156APA, but they are not subject to the stricter requirements for
11167incorporative references of standard - setting material .
1117587. AHCA acknowledg es that nothing in the CON laws would
11186require rule promulgation to adopt vital statistics reports as
11195rules. AHCAÓs interpretation of the APA, over which AHCA has no
11206substantive jurisdiction, is not entitled to deference and is
11215unpersuasive. The CON laws require AHCA t o promulgate uniform
11225need methodology rules, and AHCA has done so. The provisions of
11236the hospice need methodology rule would be distorted and
11245undermined by AHCAÓs interpretation of the APA to preclude use
11255of the most recent available death s tatistics to calculate
11265numeric need, and to instead require AHCA to engage in endless
11276meaningless rulemaking to change the date references of data
11285reports before the facts in those reports can be used.
1129588. AHCA and Intervenors identify a single adminis trative
11304order, Balsam v. Department of Health and Rehabilitative
11312Services , Case No. 84 - 0173RX (Fla. DOAH March 29, 1984), which
11324they characterize as ÐprecedentÑ requiring AHCA to incorporate
11332data by reference before the data can be used in fixed need
11344calcu lations. The Balsam order, predating Gulf Court , Meridian ,
11353and fixed need pools, is inapposite. Balsam did not address
11363historic data like the death statistics at issue here. Instead,
11373Balsam expressed a limited concern directed to HRS adopting the
11383results of a UniversityÓs methodology for projecting population
11391without promulgating the methodology or the results as rule s .
11402HRS acknowledged the legitimacy of the concern by arguing that
11412its rules should be interpreted to say that HRS would first
11423consider Ðthe methodologies and techniques used by [the
11431UniversityÓs Bureau of Economic and Business Research] to m ake
11441its projections.Ñ But the rules did not say that.
1145089. After Balsam , AHCAÓs uniform need methodology rules
11458were changed to provide for use of the of ficial population
11469estimates issued by the Office of the Governor. AHCAÓs use of
11480those population reports is not an issue presented here for
11490determination, but presumably AHCAÓs change to an official
11498government source for population data was made with Bals am in
11509mind. Regardless, the limited concern expressed in Balsam has
11518no application to AHCAÓs use of death data.
1152690. Chapter 382, Florida Statutes, mandates the
11533establishment of the Department of Health Office of Vital
11542Statistics, which is required to de velop a vital statistics
11552system of registration, collection, and preservation of vital
11560records, including records of deaths and births, and to tabulate
11570and disseminate annual reports of those vital statistics.
1157891. Death statistics are historic facts. The annual
11586reports issued by the Office of Vital Statistics pursuant to its
11597statutory duty would be admissible evidence to prove the truth of
11608the death statistics compiled therein, under the hearsay
11616exceptions provided in section 90.803(8), Florida Statutes
11623( public records and reports), and section 90.803(9) (records of
11633vital statistics). By reason of Gulf Court and Meridian , the
11643time for considering this admissible evidence is set before the
11653fixed need pool publication so AHCA can plug the evidence into
11664its methodology to calculate need.
116699 2 . AHCA and Intervenors argue that, even if AHCA was not
11682required to incorporate the death statistics annual reports by
11691reference through the rule promulgation process, AHCA in fact did
11701so, and having done so, is thereby p recluded from using updated
11713death statistics annual reports until the rule is amended to
11723incorporate the new report by reference as part of the rule.
117349 3 . Coming full circle, AHCA and Intervenors couch their
11745argument in terms of AHCA being bound by its ru le, which they
11758contend requires AHCA to use the death statistics in the reports
11769incorporated by reference. However, the hospice rule says no such
11779thing. The only part of the rule that specifies the death data to
11792be used in the numeric need methodology is the language defining
11803ÐcurrentÑ deaths and ÐprojectedÑ deaths.
118089 4 . Applying the plain language of the hospice need rule,
11820without reading words into the rule and without deleting existing
11830language, requires AHCA to use 2013 death data to calculate
11840numer ic need. The ÐcurrentÑ death s definition, as the operative
11851provision that specifies which data is to be used, controls. The
11862passive language incorporating by reference older vital
11869statistics annual reports does not direct the use of the
11879referenced report s in calculating new fixed need pools. Instead,
11889the passive reference language is a helpful provision identif ying
11899some of the data reports that have been used and provides links
11911for how the data reports can be obtained . While the APA does not
11925require AHC A to promulgate death statistics reports as rules, it
11936does not prohibit AHCA from identifying data reports and
11945providing convenient access for informational purposes.
119519 5 . Since AHCAÓs existing rule does not state that the
11963reference d data reports must be used to calculate numeric need,
11974it follows that AHCA is not required to update the informational
11985references through rule promulgation before AHCA is permitted
11993(and required) to follow the o perative language in its rule
12004directing the use of death data f or the most current year for
12017which data are available from the Office of Vital Statistics.
1202796. AHCAÓs convoluted interpretation , quoted in Finding of
12035Fact ¶ 29, cannot be accepted. It is contrary to the rule as
12048written. It rewrites or eliminates the Ðc urrentÑ deaths
12057provision and adds ÐactionÑ words to the passive references to
12067specific data reports . Instead of interpreting its rule in a way
12079that rewrites the words codified in the rule, AHCA must ha rmoniz e
12092(without changing) all of the rule language. Giving full effect
12102to the operational part that defines ÐcurrentÑ deaths, while
12111properly treating the passive references as informational only ,
12119harmonizes all of the rule language without changing any of it.
12130It also avoids the quandary from AHCAÓs interpr etation that AHCA
12141would have violated the APAÓs rulemaking requirements by choosing
12150not to procee d expeditiously to rulemaking.
121579 7 . AHCAÓs explanation of what it believes the APA
12168requires, to justify its proffered interpretation of the hospice
12177rule , c a nnot be squared with AHCAÓs prior practice in which AHCA
12190has never limited itself to using only those data reports
12200incorporated by reference in the hospice rule . AHCAÓs
12209explanation cannot be squared with AHCAÓs current practice of
12218undergoing rule promulga tion to reference only some of the data
12229reports used by the hospice need methodology , while excluding the
12239hospice admissions data reports . And AHCAÓs explanation cannot
12248be squared with AHCAÓs practice in connection with other CON need
12259methodology rules, w here AHCA does not take the position that it
12271cannot use data to calculate numeric need until the data reports
12282are promulgated and incorporated by reference as rules . AHCA did
12293not reasonably explain these inconsistencies.
1229898 . HPH met its burden of provi ng that AHCA failed to apply
12312its hospice need methodology rule as written. AHCAÓs rule
12321requires use of the 2013 death data where the methodology calls
12332for ÐcurrentÑ deaths. Instead, AHCA erroneously used 2012 death
12341data for ÐcurrentÑ deaths. The resulti ng numeric need
12350determination of one new hospice program needed was erroneous.
12359The corrected fixed need pool number for hospice service area 5A ,
12370using the death data required by AHCAÓs rule, is zero.
12380RECOMMENDATION
12381Based on the foregoing Findings of Fact and Conclusions of
12391Law, it is RECOMMENDED that the Agency for Health Care
12401Administration enter a final order determining that the published
12410fixed need pool number of one for hospice service 5A was
12421erroneous, and that the correct fixed need pool number for
12431hospice service 5A is zero.
12436DONE AND ENTERED this 1 1 th day of March , 2015 , in
12448Tallahassee, Leon County, Florida.
12452S
12453ELIZABETH W. MCARTHUR
12456Administrative Law Judge
12459Division of Administrative Hearings
12463The DeSoto Building
1246612 30 Apalachee Parkway
12470Tallahassee, Florida 32399 - 3060
12475(850) 488 - 9675
12479Fax Filing (850) 921 - 6847
12485www.doah.state.fl.us
12486Filed with the Clerk of the
12492Division of Administrative Hearings
12496this 1 1 th day of March , 2015 .
12505ENDNOTE S
125071/ References to Florida Statute s are to the 2014 codification,
12518unless otherwise provided.
125212/ The batching cycle mechanism was developed in response to
12531Biomedical Applications of Clearwater v. Department of Health and
12540Rehabilitative Services , 370 So. 2d 19 (Fla. 2d DCA 1979)
12550( Biomedica l ). In Biomedical , the court applied the Ashbacker
12561doctrine, established in Ashbacker Radio Corp. v. Federal
12569Communications Commission , 326 U.S. 327, 66 S. Ct. 148, 90 L.Ed.
12580108 (1945), to the CON program, holding that CON applicants have
12591an inherent righ t to comparative review with other mutually
12601exclusive CON applications. In explaining mutual exclusivity in
12609the CON context, the Biomedical court described the Ðfixed need
12619poolÑ concept: ÐWe are not the first to observe that where need
12631is determined in a ccordance with a quantitative standard; that
12641is, by number of units, a fixed pool of needed investments is
12653thereby created. Opposing applicants necessarily become
12659competitors for that fixed pool.Ñ Id. at 23. The court
12669suggested that a Ðself - starting mec hanism within HRSÑ was needed
12681and invited HRS Ðto devise means of achieving comparative
12690consideration[.]Ñ Id. at 25. The result was the batching cycle
12700mechanism.
127013/ Prior to fixed need pools, HRS calculated numeric need under
12712the applicable rule method ology at the time of its initial review
12724of CON applications, plugging into the calculations data
12732available at that time. But if HRSÓs initial decisions were
12742challenged, as they often were, numeric need would be
12751recalculated in subsequent administrative he arings based on new
12760data admitted as evidence . Hearings were frequently delayed at
12770the request of parties hoping for new favorable data , which could
12781be used as evidence. The problem tackled by Gulf Court was how
12793to sort out comparative review rights whe n numeric need is the
12805product of new data issued a fter HRS Ós initial decisions , when
12817several batching cycles might be pending at DOAH , with later
12827batch es sometimes going to hearing before earlier batch es .
128384/ The 1995 version of the hospice rule identified the Office of
12850Vital Statistics as being within HRS, as it was at the time.
12862Following a reorganization, the Office of Vital Statistics was
12871reassigned to the Department of Health, and the reference in the
12882rule was later changed to reflect that reassignment . Otherwise,
12892the language has not been changed from 1995 to its present form.
129045/ AHCA and Intervenors also refer to F lorida Administrative Code
12915Rule 1 - 1.013, adopted by the Department of State to address
12927requirements for incorporation by reference, purs uant to the
12936rulemaking authority in section 120.54(1)(i)6. As AHCA and
12944Intervenors acknowledge, the Department of StateÓs rule permits
12952agencies to incorporate material by reference Ðprovided it meets
12961the definition of ÒruleÓ provided in section 120.52(16) . . . and
12973is generally available to affected persons.Ñ (Jt. PRO at 24 ).
12984Despite this recognition, AHCA and Intervenors fail to explain
12993how historic death data meets the definition of a rule.
13003COPIES FURNISHED:
13005Seann M. Frazier, Esquire
13009Parker, Hudson , Rainer and Dobbs, LLP
13015215 South Monroe Street , Suite 750
13021Tallahassee, Florida 32301
13024(eServed)
13025Richard Joseph Saliba, Esquire
13029Agency for Health Care Administration
130342727 Mahan Drive , Mail Stop 3
13040Tallahassee, Florida 3230 8
13044(eServed)
13045Geoffrey D. Smith, E squire
13050Smith and Associates
130533301 Thomasville Road , Suite 201
13058Tallahassee, Florida 32308
13061(eServed)
13062Corinne T. Porcher, Esquire
13066Smith and Associates
130693301 Thomasville Road , Suite 201
13074Tallahassee, Florida 32308
13077(eServed)
13078Stephen K. Boone, Esquire
13082Boone, Bo one, Boone, and Koda, P.A.
130891001 Avenida Del Circo
13093Post Office Box 1596
13097Venice, Florida 34284
13100(eServed)
13101Elizabeth Dudek, Secretary
13104Agency for Health Care Administration
131092727 Mahan Drive , Mail Stop 1
13115Tallahassee, Florida 32308
13118(eServed)
13119Stewart Williams , General Counsel
13123Agency for Health Care Administration
131282727 Mahan Drive , Mail Stop 3
13134Tallahassee, Florida 32308
13137(eServed)
13138Richard J. Shoop, Agency Clerk
13143Agency for Health Care Administration
131482727 Mahan Drive, Mail Stop 3
13154Tallahassee, Florida 32308
13157(e Served)
13159NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
13165All parties have the right to submit written exceptions within
1317515 days from the date of this Recommended Order. Any exceptions
13186to this Recommended Order should be filed with the agency that
13197will issue the Fi nal Order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/17/2015
- Proceedings: Transmittal letter from Claudia Llado forwarding Compassionate Care Hospice of the Gulf Coast, Inc.'s Proposed Exhibits numbered 3-5, to Intervenor.
- PDF:
- Date: 03/16/2015
- Proceedings: Transmittal letter from Claudia Llado forwarding Hernando-Pasco Hospice, Inc.'s Exhibits numbered 9-10, 14-15, and 19, which were not offered into evidence to Petitioner.
- PDF:
- Date: 03/11/2015
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 02/05/2015
- Proceedings: Hernando-Pasco Hospice's Motion for One Day Extension of Time to File Proposed Recommended Order filed.
- Date: 01/26/2015
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 01/20/2015
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 12/31/2014
- Proceedings: The Agency for Health Care Administration's Responses to Request for Admissions filed.
- PDF:
- Date: 12/29/2014
- Proceedings: Amended Notice of Taking Deposition of Hernando-Pasco Hospice, Inc. by Corporate Representative via Telephone filed.
- PDF:
- Date: 12/29/2014
- Proceedings: Notice of Service of Hernando-Pasco Hospice, Inc.'s Answers and Objections to Compassionate Care Hospice of the Gulf Coast, Inc.'s First Interrogatories filed.
- PDF:
- Date: 12/29/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Answers and Objections to Compassionate Care Hospice of the Gulf Coast, Inc.'s First Request to Produce filed.
- PDF:
- Date: 12/29/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Answers and Objections to Compassionate Care Hospice of the Gulf Coast, Inc.'s First Request for Admissions filed.
- PDF:
- Date: 12/23/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Response in Opposition to CCH and WFH's Joint Motion to Relinquish Jurisdiction filed.
- PDF:
- Date: 12/23/2014
- Proceedings: Notice of Taking Deposition of Hernando-Pasco Hospice, Inc. by Corporate Representative via Telephone filed.
- PDF:
- Date: 12/18/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Responses and Objections to Agency for Health Care Administration's First Request to Produce filed.
- PDF:
- Date: 12/18/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Answers and Objections to the Agency for Health Care Administration's First Request for Admissions filed.
- PDF:
- Date: 12/18/2014
- Proceedings: Notice of Service of Hernando-Pasco Hospice, Inc.'s Answers and Objections to First Interrogatories from Agency for Health Care Administration filed.
- PDF:
- Date: 12/16/2014
- Proceedings: CCH and WFH's Joint Motion to Relinquish Pursuant to 120.57(1)(i), Florida Statutes filed.
- PDF:
- Date: 12/16/2014
- Proceedings: Joint Motion to Relinquish Pursuant to 120.57(1)(i), Florida Statutes filed (filed in error).
- PDF:
- Date: 12/15/2014
- Proceedings: Agency's Response to Hernando-Pasco Hospice, Inc.'s First Request for Production filed.
- PDF:
- Date: 12/15/2014
- Proceedings: Agency for Health Care Administration's Notice of Service of Responses to Hernando-Pasco, Inc.'s First Set of Interrogatories filed.
- PDF:
- Date: 12/12/2014
- Proceedings: Order Denying CCH`s Corrected Amended Motion for Leave to Reply to HPH`s Response to AHCA`s Request for Recognition or, in the Alternative, CCH`s Request for Official Recognition.
- PDF:
- Date: 12/08/2014
- Proceedings: West Florida Health, Inc.'s (WFH) Joinder in CCH's Corrected Amended Motion for Leave to Reply to HPH's Response to AHCA's Request for Recognition or, in the Alternative, CCH's Request for Official Recognition filed.
- PDF:
- Date: 12/08/2014
- Proceedings: CCH's Corrected Amended Motion for Leave to Reply to HPH's Response to AHCA's Request for Recognition or, in the Alternative, CCH's Request for Official Recognition filed.
- PDF:
- Date: 12/04/2014
- Proceedings: Compassionate Care Hospice of the Gulf Coast, Inc.'s Request for Admissions to Hernando-Pasco Hospice, Inc. filed.
- PDF:
- Date: 12/03/2014
- Proceedings: CCH's Amended Motion for Leave to Reply to HPH's Response to AHCA's Request for Recognition or, in the Alternative, CCH's Request for Official Recognition filed.
- PDF:
- Date: 12/01/2014
- Proceedings: The Agency for Health Care Administration's First Request for Admissions to Hernando-Pasco Hospice, Inc. filed.
- PDF:
- Date: 12/01/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Request for Admissions to Agency for Health Care Administration filed.
- PDF:
- Date: 12/01/2014
- Proceedings: Order Denying Agency`s Request for Official Recognition, without Prejudice, and Denying Intervenor`s Motion to File a Reply.
- PDF:
- Date: 11/26/2014
- Proceedings: CCH's Motion for Leave to Reply to HPH's Response to AHCA's Request for Recognition filed.
- PDF:
- Date: 11/26/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Response to Agency for Health Care Administration's Motion for Official Recognition filed.
- PDF:
- Date: 11/21/2014
- Proceedings: Compassionate Care Hospice's First Request for Production of Documents to Hernando-Pasco Hospice filed.
- PDF:
- Date: 11/21/2014
- Proceedings: CCH's Notice of Service of First Interrogatories to Hernando-Pasco Hospice, Inc. filed.
- PDF:
- Date: 11/18/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s First Request for Production of Documents to the Agency for Health Care Administration filed.
- PDF:
- Date: 11/18/2014
- Proceedings: Notice of Service of Hernando-Pasco Hospice, Inc.'s First Set of Interrogatories to Agency for Health Care Administration filed.
- PDF:
- Date: 11/14/2014
- Proceedings: The Agency for Health Care Administration's First Request to Produce to Petitioner filed.
- PDF:
- Date: 11/14/2014
- Proceedings: Notice of Service of the Agency for Health Care Administration's First Set of Interrogatories to Petitioner, Hernando-Pasco Hospice, Inc. filed.
- PDF:
- Date: 11/13/2014
- Proceedings: Notice of Hearing (hearing set for January 20, 2015; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 11/13/2014
- Proceedings: Order Denying Motion to Strike, Motion to Dismiss, and Motion to Relinquish Jurisdiction
- PDF:
- Date: 11/12/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Response in Opposition to the Agency for Health Care Administration's Motion to Relinquish Jurisdiction filed.
- PDF:
- Date: 11/12/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Response in Opposition to the Agency for Health Care Administration's Motion to Strike filed.
- PDF:
- Date: 11/12/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Response in Opposition to Agency for Health Care Administration's Motion to Dismiss filed.
- PDF:
- Date: 11/07/2014
- Proceedings: The Agency for Health Care Administration's Reply in Opposition to Petitioner's Motion to Abate or Consolidate filed.
- PDF:
- Date: 11/07/2014
- Proceedings: Notice of Agency Position on Motion to Place Case in Abeyance filed.
- PDF:
- Date: 11/07/2014
- Proceedings: Hernando-Pasco Hospice, Inc.'s Motion to Place Case in Abeyance filed.
Case Information
- Judge:
- ELIZABETH W. MCARTHUR
- Date Filed:
- 10/28/2014
- Date Assignment:
- 10/29/2014
- Last Docket Entry:
- 05/12/2015
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Other
Counsels
-
Stephen K. Boone, Esquire
Address of Record -
Seann M. Frazier, Esquire
Address of Record -
Corinne T. Porcher, Esquire
Address of Record -
Richard Joseph Saliba, Esquire
Address of Record -
Geoffrey D. Smith, Esquire
Address of Record -
Geoffrey D Smith, Esquire
Address of Record