16-000585RU Planned Parenthood Of Southwest And Central Florida, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, June 24, 2016.

Summary: Petitioner entitled to attorneys' fees incurred in unadopted rule challenge prior to, but not after, the agency's publication of a Notice of Proposed Rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLANNED PARENTHOOD OF SOUTHWEST

AND CENTRAL FLORIDA, INC.,

Petitioner,

vs. Case No. 16 - 0 585RU

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Respondent .

________________________________________/

FINAL ORDER ON CLAIM FOR ATTORNEYS Ó

FEES AND COSTS UNDER SECTION 120.595(4 ) ( b )

An administrative hearing was held on April 5, 2016, on

Petitioner Ó s claim for attorneys Ó fees and costs brought

pursuant to section 120.595(4)(b), Florida Statutes, in

Tallahassee , Florida, before James H. Peterson III,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Julie Gallagher , Esquire

Allen R. Grossman , Esquire

Grossman, Furlow & Bay ó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

For Respondent : Timothy P. Atkinson , Esquire

Segundo J. Fernandez , Esquire

Oertel, Fernandez, Bryant & Atkinson , P.A.

Post Office Box 1110

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE S

Whether Planned Parenthood of Southwest and Central

Florida, Inc. ( Petitioner ) , is entitled to an award of

attorneys Ó fees and costs against the Agency for Health Care

Administration (Respondent or AHCA) pursuant to s ection

12 0.595(4)(b), Florida Statutes, 1/ a nd , if so, in what amount ( s ) .

PRELMINARY STATEMENT

On February 1, 2016, Petitioner filed with the Division of

Administrative Hearings ( DOAH ), a Petition to Determine

Invalidity of Agency Statements (Unadopted Rule Challenge) ,

which assert ed that Respondent Ó s on line reporting form should

be, but had not been , adopted as a rule. A No tice of Hearing

was entered on February 9, 2016 , scheduling a final hearing in

the Unadopted Rule Challenge for March 3, 2016.

On February 15, 2016, AHCA published a Notice of Proposed

Rule to amend Florida Administrative Code Rule 59A - 9.034, to

inco rporate by reference the online reporting form that was the

subject of the Unadopted Rule Challenge . By operation of law ,

AHCA Ó s publication of the Notice of Proposed Rule automatically

stayed the Unadopted Rule Challenge pending rulemaking.

On February 17, 2016, Petitioner filed a motion to vacate

the automatic stay , requesting that the stay be lifted so that

the Unadopted Rule Challenge could go forward , and asserting,

inter alia , a claim for attorneys Ó fees and costs under section

120.595 (4)(b) . Following a telephonic hearing, an Order Denying

Motion to Vacate Stay was entered on February 23, 2016, denying

Petitioner Ó s request to lift the stay . In addition, t he Order

Denying Motion to Vacate Stay requir ed AHCA to file written

notice s stating that AHCA would not rely on the alleged

unadopted rule to establish a prima facie case or liability in

three pending cases brought by AHCA against Respondent alleging

that Respondent had violated the scope of its license . The

Order Denying Motion to Vacate Stay further provided that

Petitioner Ó s request for attorneys Ó fees and costs pursuant to

section 120.595(4)(b), would be set for hearing by separate

O rder following the parties Ó submission of mutually - available

hearing dates.

On February 24, 2016, in compliance with the Order Denying

Motion to Vacate Stay , Respondent filed its copy of the required

notice in the three pending cases against Petitioner (DOAH C ase

Nos. 15 - 5486, 15 - 5487, and 15 - 5488) . Following the parties Ó

submission of proposed hearing dates, a hearing on Pe titioner Ó s

request for attorney s Ó fees and costs was scheduled for April 5,

2016.

During the hearing, P etitioner offered Petitioner Ó s

Exhibits A through F into evidence , all of which were accepted .

Petitioner presented the testimony of Seann Frazier, who was

accepted as an expert in administrative law. In addition,

Petitioner Ó s counsel of record, Ms. Gallagher and Mr. Grossman,

testified briefly as to particular items on the time records

submitted as a basis of the award of fees.

Respondent d id not present witnesses, but offered Exhibits

1 through 7 into evidence , all of which were accepted .

A T ranscript of the proceedings was filed on April 27,

2016. The original due date for proposed final orders was 10

days after the filing of the T ranscript. However, due to the

undersigned Ó s schedule , an extension of the due date was offered

and both parties agreed. T he due date for proposed f inal o rders

w as extended until May 27, 2016. The p arties timely submitted

their respective Proposed Final Orders, both of which were

considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Section 390.0112, Florida Statutes , requires abortion

clinics to report the number of pregnancy ter minations

(abortions) performed each month. The statute requires clinics

to report the number of procedures performed, the reason for

same, the period of gestation at the time such procedures were

performed, and the number of infants born alive during or

immediately after an attempted abortion.

2. Rule 59A - 9.034 is a rule adopted by AHCA (and its

predecessor agencies) in various forms and different numbers

since at least 1994. The history of the rule reflects that,

from 1994 until 2008 , each agency charged with the duty to

collect information from abortion clinics required by statute

has used a form and adopted the form by rule. AHCA amended the

rule in 200 6 and specifically incorporated Department of Health

Form 1578 from May 2004 by reference. The 2006 rule stated in

pertinent part:

Pursuant to Chapters 382 and 390, F.S., an

abortion clinic must submit a report each

month to the Office of Vital Statistics of

the Department of Health, regardless of the

number of terminations of pregnancy.

Monthly reports must be received by the

department within 30 days following the

preceding month using DOH Form 1578,

May 2004, Ð Monthly Report of Induced

Terminations of Pregnancy Ñ , hereby

incorporated by reference, and which can be

obtained by written request from the

Department of Health . . . .

3. In 2008, AHCA amended r ule 59A - 9.034 in a manner that

changed the reporting requirements so that reports were no

longer to be sent to the Office of Vital Statistics within the

Department of Health . The amendment no longer incorporated a

reporting form by reference. Rather, the 2008 amendment deleted

reference to a Department of Health form and, instead, require d

that reports be submitted to AHCA using an online portal system

accessed at http://ahca.myflorida.com/ITOP . Once logged into

the online portal, the providers would then complete the online

Induced Termination of Pregnancies (ITOP) reporting form. The

2008 amendment failed to incorporate the new online ITOP

reporting form into the rule by reference.

4. Since the 2008 rule amendment, the online ITOP

reporting form has been accessible only through the portal and

is applicable to all abortion providers in Florida.

5. In addition to the information required to be reported

under section 390.0112 , the online ITOP reporting form also

solicit ed various information not specified by statute. For

example, while the statute requires the Ð reason for termination Ñ

to be reported, the online ITOP reporting form include d a

specific and limited list of possible reasons from which a

provider must choose. In addition, the statute requires the

Ð period of gestation Ñ at termination to be reported by the

provider , but does not provide guidance as to how the Ð period of

gestation Ñ is determined. The challenged online ITOP reporting

form, however, create s three time periods of varying Ð weeks of

gestation Ñ from which the provider must choose and insert the

number of procedures performed in that time period . The form

also require s disclosure of data regarding a provider Ó s facility

administrator, which is not required by the statute.

6. By letter date d September 11 , 2015, and in accordance

with s ection 120.595(4) ( b ), Petitioner advised AHCA that the

online ITOP form con stituted an unpromulgated rule.

7. P ursuant to s ection 120.54(2 ), o n October 1, 2015, AHCA

published a Notice of Development of Rulemaking indicating that

the Agency p lanned to develop a n amendment to r ule 59A - 9.034

that would incorporate the online ITOP form by reference. The

Notice of Development of Rulemaking advised that a rule -

development work shop would be held on October 19, 2016 , if

requested in writing .

8. Petitioner made a written request for a workshop and

thereafter attended the workshop held by AHCA on October 19,

2015. Petitioner also timely submitted, by facsimile

t ransmission, written comments regarding the Notice of

Development of Rulemaking on October 26, 2015.

9. Petitioner Ó s written comments on the Notice of

Development of Rulemaking alleged that the form contravened the

law, was vague and confusing, and arbitrary and capricious. The

comments specifically identified perceived problems with the

form and stated that the form utilizes terms that are not

defined either in statute or in administrative rules promulgated

by AHCA. The written comments suggested that the text of the

online ITOP reporting form be modified to either require the

reporting of gestational a ge determined in a fashion consistent

with the reporting of rela ted vital statistics in Florida or, in

the alternative, to include an instruction that Ð weeks of

gestation Ñ should be counted from the presumed date of

fertilization and correct the columns to ensure that all weeks

of pregnancy fit within one of the columns included on the

online ITOP reporting form.

10. There was no evidence submitted indicating that AHCA

took further action on the Notice of Developmen t of Rulemaking

with regard to r ule 59A - 9.034 or the online ITOP reporting form

from October 26, 2015 , through January 31 , 2016 .

11. On February 1, 2016, Petitioner filed its Unadopted

Rule Challenge with DOAH .

12. O n February 15, 2016 , AHCA published a Notice of

Proposed Rule , proposing to amend r ule 59A - 9.034 to incorporate

by reference the online ITOP reporting form.

13. A HCA argues that the challenged online ITOP reporting

form was not a rule . Considering , however, the terms of t he

challenged online ITOP reporting form and the language of

section 390.0112 that the form was designed to implement, it is

found that the form is an agency statement of general

applicability that implements, interprets, or prescribes law or

policy or describes AHCA Ó s procedure or practice requirements

and solicits information that is not specifically stated in the

statute being implemented . And , further c onsidering the facts

and circumstances of this case in light of the definition of

Ð rule Ñ found in section 120.52(1 6), discussed infra , it is found

that the online ITOP reporting form was an unadopted rule when

it was challenged by Petitioner.

14. AHCA failed to demonstrate that it did not know and

should not have known that the online ITOP reporting for m was an

unadopted rule . In addition to being specifically notified in

writing by Petitioner on September 11, 2015, that the form may

be an unadopted rule, the evidence shows that AHCA knew at

various times, and should have known at all times, that the form

cons tituted a rule . The challenged form was previous ly

incorporat ed in the administrative rules of AHCA Ó s predecessor

agencies (Department of Health and Department of Health and

Rehabilitative Services) and by AHCA itself in its own

administrative rules prior to 20 08 and, notably, by its current,

and now completed , effort to incorporate the form by referen ce

in its administrative rules. The form is now AHCA Form 3130 -

1010 OL, adopted by reference in r ule 59A - 9.034 . 2/

15. Petitioner submitted evidence in support of its claim

for attorney s Ó fees, but does not seek recovery of costs.

16. Counsel for Petitioner charged their client $300 per

hour for the work by Mr. Grossman and Ms. Gallagher, and $150 per

hour for the work of th eir firm Ó s associate. AHCA stipulated to

the reasonableness of those hourly rates. The reasonableness of

the hourly rates was confirmed by Seann Frazier, an attorney

practicing in Tallahassee, Florida, who was accepted as an

expert in administrative law , an d whose opinion in that regard

is credited .

17. The attorneys Ó fee time records submitted by Petitioner

include charges incurred prior to AHCA Ó s p ublication of the Notice

of Proposed Rule on February 15, 2016, as well as time spent after

that publication.

18. The amount of time billed by the attorneys for

Petitioner for developing and pursuing the challenge to an

unpromulgated rule up until AHCA published its Notice of Proposed

Rule on February 15, 2016, is reasonable. The time records

suppor ting recovery of Petitioner Ó s attorneys Ó fees incurred in

that time period include time to analyze and prepare the initial

notice of the unpromulgated rule , prepare for and attend a

w orkshop on the rule development , submit comments and information

to AHCA in an effort to persuade it to engage in rulemaking , and

to prepare and file the Unadopted Rule Challenge. It is found

that all of th e entries in the records submitted for the time

period prior to February 15, 2016 , show time spent that was

reasonably related to Petitioner Ó s Unadopted Rule Challenge and,

while not meticulously detailed in all respects , were sufficient

to support Petitioner Ó s claim for that time period .

19. The attorneys Ó fees incurred prior to AHCA Ó s

publication of the Notice of Proposed Rule total $7,170.00.

20. When AHCA filed its Noti ce of Proposed Rule on

February 15, 2016, Petitioner Ó s Unadopted Rule Challenge was

automatically stayed.

21. The time entries submitted for attorney time spent in

this case on and after February 15, 2016, relate to Petitioner Ó s

Motion to Vacate Stay, the hearing thereon, preparation of the

Order that resulted from that hearing , and work related to its

claim for attorneys Ó fees. As a matter of fact, all of these fees

were incurred after AHCA published its Notice of Proposed

Rulemaking . As a matter of law, these post - publication fees are

not recoverable under section 120.595(4)(b) . See Conclusions of

Law, below.

22. The evidence demonstrates , however, that Petitioner Ó s

reasonable attorneys Ó fees reasonably related to the Unadopted

Rule Challenge accrued prior to February 15, 2016, total

$7,170.00, and are recoverable against AHCA in this proceeding.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdict ion of this matter pursuant to s ections 120.56(4) and

120.595(4 ) (b), Florida Statute s .

24. Section 120.595(4)(b) provides:

Upon notification to the administrative law

judge provided before the final hearing that

the agency has published a notice of

rulemaking under s. 120.54(3) (a), such

notice shall automatically operate as a stay

of proceedings pending rulemaking. The

administrative law judge may vacate the stay

for good cause shown. A stay of proceedings

under this paragraph remains in effect so

long as the agency is proceeding

expeditiously and in good faith to adopt the

statement as a rule. The administrative law

j udge shall award reasonable costs and

reasonable attorney Ó s fees accrued by the

petitioner prior to the date the notice was

published, unless the agency proves to the

administrative law judge that it did not

know and should not have known that the

statemen t was an unadopted rule. Attorneys Ó

fees and costs under this paragraph and

paragraph (a) shall be awarded only upon a

finding that the agency received notice that

the statement may constitute an unadopted

rule at least 30 days before a petition

under s. 120.56(4) was filed and that the

agency failed to publish the required notice

of rulemaking pursuant to s. 120.54(3) that

addresses the statement within that 30 - day

period. Notice to the agency may be

satisfied by its receipt of a copy of the

s. 120.56(4) petition, a notice or other

paper containing substantially the same

information, or a petition filed pursuant to

s. 120.54(7) . An award of attorney Ó s fees

as provided by this paragraph may not exceed

$50,000.

25. Under section 120.595(4)(b), recited above, and the

facts of this case, Petitioner is entitled to an award of

reasonable attorney Ó s fees and costs accrued prior to the date

of the notice of rulemaking unless AHCA established it did not

know and should not have k nown that the statement challenged was

an unadopted rule. Notice must have been provided to AHCA at

least 30 days before the Unadopted Rule Challenge was filed and

AHCA must have failed to publish a notice of rulemaking under

s ection 120.54(3) to address the challenged agency statement

within 30 days of receiving the notice from Petitioner .

26. As noted in the Findings of Fact, above, Petitioner gave

written notice to AHCA on September 11, 2015 , that the challenged

statement may constitute an unadopted rule, well over 30 days

prior to filing of its Unadopted Rule Challenge on February 1,

2016. AHCA did not publish a noti ce of rulemaking until

February 15, 2016, over five months after receiving notice from

Petitioner that the challenged form may be an unadopted rule.

27. Further, AHCA failed to prove that it did not know and

should not have known that the challenged statement was an

unadopted rule.

28. The pertinent part of section 120.52(16) provides :

Ð Rule Ñ means each agency statement of

general applicability that implements,

interprets, or prescribe law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information n ot specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule.

29. In this case, the evidence demonstrated that AHCA

knew , and should have known , that the online ITOP reporting form

was an agency statement of general applicability that

implements, interprets, or prescribes law or policy or describes

AHCA Ó s procedure or practice requirements and solicits

information that is not specifically required to be reported

under section 390.0112 .

30. While Petitioner is entitled to recover attorney s Ó

fees that are reasonably related to its Unadopted Rule Challenge

that accrued prior to AHCA Ó s publication of its Notice of

Proposed Rule on February 15, 2016, it is clear that a claim for

attorneys Ó f ees under section 120.595(4)(b) is limited to

Ð reasonable attorney Ó s fees accrued by the petitioner prior to

the date the notice [of rulemaking] was published. Ñ Id.

31. Petitioner identified a total of 26.4 hours of

attorney time for a total amount of $ 7,170.00, accrued prior to

AHCA Ó s publication of its Notice of Rulemaking . The hourly rate

and time spent during that time period were reasonable and

sufficiently documented to determine the appropriateness o f

their recovery.

ORDER

Based upon the foregoing , i t is

ORDERED that:

Pursuant to section 120.595(4)(b), Petitioner, Planned

Parenthood of Southwest and Central Florida, Inc., shall recover

from the Agency for Health Care Administration, the sum of

$7,170.00, as reasonable attorneys Ó fees accrued an d recoverable

in this proceeding .

DONE AND ORD ERED this 24th day of June , 201 6 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida32399 - 3060

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

T his 24th day of June , 201 6 .

ENDNOTE S

1/ Unless otherwise indicated by the context, all citations to

the Florida Statutes or the Florida Administrative Code are to

current versions.

2/ As of the date of hearing held in this case on April 5, 2016,

the Department of State website, www.flrules.org , reflected only

a correction submitted by AHCA on March 15, 2016. The rule was

later finalized on May 19, 2016, as currently reflected on the

Department of State website. The rule , as finalized, now reads:

59A - 9.034 Reports.

Pursuant to Section 390.0112, F.S., an

abortion clinic must submit a report each

month to the Agency, regardless of the

number of terminations of pregnancy.

Monthly reports must be received by the

Agency within 30 days following the

preceding month. Monthly reports must be

submitted on the Monthly Report of Induced

Terminations of Pregnancy, AHCA Form 3130 -

1010 OL, February 2016, which is hereby

incorporated by reference. This form is

only accepted electronically and is

available at:

http://ahca.myflorida.com/ITOP. A copy of

the form can also be found at:

http://www.flrules.cor/Gateway/reference.asp

?No=Ref - 06701 . Failure to submit this

report so that it is timely received by the

Agency wi ll result in an administrative fine

being imposed pursuant to Section

390.0112(4), F.S.

COPIES FURNISHED :

Julie Gallagher, Esquire

Allen R. Grossman, Esquire

Grossman Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Timothy P. Atkinson, Esquire

Segundo J. Fernandez, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proced ures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commence d by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

w ith the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.