16-000687F Bayou Shores Snf, Llc, D/B/A Rehabilitation Center Of St. Pete vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Monday, June 13, 2016.

Summary: Summary Final Order--Petitioner failed to include the text of the statement or a descripton of the statement with particular facts sufficient to show that the statement constitutes a rule. Petition dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAYOU SHORES SNF, LLC, d/b/a

REHABILITATION CENTER OF ST.

PETE,

Petitione r ,

vs. Case No. 16 - 0687 RU

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER

On February 18, 2016, Respondent, Agency for Health Care

Administration, filed a Motion for Summary Final Order pursuant

to section 120.57(1)(h), Florida Statutes (2015). 1/

APPEARANCES

For Petitione r : Julie Gallagher, Esquire

Grossman Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

For Respondent: Richard Joseph Saliba, Esquire

Agency for Health Care Administration

M ail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether statements contained in

RespondentÓs letter dated March 4, 2008, an attachment thereto, 2 /

and comments made during a hearing on January 5 through 8, and

February 22, 2016 , constitute a rule as defined by section

120 .52(16) .

PRELIMINARY STATEMENT

On February 9, 2016, Bayou Shores SNF, LLC , d/b/a

Re habilitation Center of St. Pete (Bayou Shores) , filed a

Petition to Determine Invalidity of Agency Statements

(Petition) . In the Petition, Bayou Shores asserted that the

Agency for Health Care Administration (AHCA) is the Ðregulatory

authority responsible for licensure of nursing homes and

enforcement of applicable fe deral regulations, state statutes,

and state rules governing skilled nursing facilities pursuant to

the Omnibus Reconciliation Act of 1986, Title IV, Subtitle C (as

amended), c hapters 400, Part II, and 408, Part II, Florida

Stat ute [s] , and c hapter 59A - 4, F .A.C.Ñ Bayou Shores further

asserted that the Department of Children and Families is the

state agency charged with regulating nursing home facilities in

Florida, a nd with enforcement of c hapter 415, Florida Statutes.

Bayou Shores asserted that under sect ion 415.101, the intent of

the chapter was Ðto provide for the detection and correction of

abuse, neglect, and exploitation through social services and

criminal investigations and to establish a program of protective

services for all vulnerable adults in n eed of them.Ñ Bayou

Shores also alleged that a March 4, 2008 , letter attempted to

Ðresolve some of the questions that have arisen about abuse and

neglect.Ñ Bayou Shores asserted that statements made by an AHCA

witness during an administrativ e hearing inv olving Bayou Shores

constituted an unpromulgated rule. Bayou Shores requested a

ÐFinal Order be entered determining that the agency statement

described inÑ the Petition constituted an unpromulgated rule.

AHCA responded to the Petition by filing a Motion to

Dismiss Petition to Determine Invalidity of Agency Statements on

February 12, 2016, 3/ and on February 18, 2016, AHCA filed its

Motion for Sum mary Final Order. Bayou Shores has not filed a

Response to the Motion for Summary Final Order, and the time in

which to file a response has expired.

Having reviewed the Petition (including the exhibits) ,

AHCAÓs motion (including the exhibits) and the record, it has

been determined that there are no genuine issues as to any

material fact, and this matter is decided on the written

submissions.

FINDINGS OF FACT

Based on the entire record of this proceeding, the

following facts are undisputed and found to be true:

1. Bayou Shores is a skilled licensed nursing home located

in Saint Petersburg, Florida.

2. On January 5 through 8 and February 22, 2016, a hearing

was he ld regarding consolidated DOAH Case No s . 15 - 0619 and

15 - 5469. Original DOAH Case No. 15 - 0 619 involved A HC A Ós

January 15, 2015, Notice of Intent to Deny Renewal Application

pursuant to sections 400.121(1) an d (3) , Florida Statute s . 4/

Original DOAH Cas e No. 15 - 5469 involved an eight - co unt

Administrative Complaint.

3. During the consolidated hearing, one of AHCAÓs

witnesses testified about the state requirements a s related to

abuse reporting. The pertinent recitation by AHCAÓs witness

follows:

Q. [S]o without regard to policies, is

there another requirement that any

allegation of abuse be reported to AHCA?

A. Okay, There are requirements that

allegations of abuse have to be reported to

the state agency. I know it is in federal

law and IÓd be glad to look and see where it

might be in the state law.

Q. Well Î

A. State requirements.

Q. But you donÓt know off hand what they

are.

A. Offhand, no.

4. Bayou Shores provided other statements by the witn ess

in an attempt to demonstrate her statements constituted a rule

of AHCA. The witness testified as to her understanding of the

obligations imposed; however, t aken in total, the witnessÓ s

unders ta nding did not establish an agency rule.

5. On March 4, 20 08, AHCA issued a letter with an

attachment to administrators, 5/ which provided in part, the

following:

In an attempt to resolve some of the

questions that have arisen about abuse and

neglect and the understanding and reporting

of resident to resident alte rcations, the

Centers for Medicare and Medicaid Services

(CMS) has clarified this issue in a release

about accidents and supervision. Please

refer to CMS Ref: S&C - 07 - 25. As this

clarification impacts the Federal

Immediate/5 - Day Reporting System, we are

t aking this opportunity to redistribute

definitions, guidance for a thorough

investigation, and the suggested reporting

form with instructions for its completion.

6. The March 4 letter was an attempt by AHCA to clarify

federal CMS issues relating to repor ting abuse requirements. It

does not establish an agency rule, nor does it provide a

statement that amounts to a rule.

7. The Petition does not provide the text of a statement

or a description of the statement sufficient to show that the

statement cons titutes a rule. See Aloha U tilities, Inc. v.

Public Serv. Com mÓn , 723 So. 2d 919 (Fla. 1st DCA 1999).

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.56, Fla. Stat.

9. Section 120.52(16), Florida Statutes, defines a rule as

follows:

ÐRuleÑ means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not include:

(a) Internal manageme nt memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by t he Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

Financial Officer or Comptroller as chief

fiscal officer of the state and relating or

pertaining to claims for payment submitted

by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a

result of collective bargaining .

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

10. Section 120.56(4), Florida Statutes , provides in

pertinent part:

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates

s. 120.54(1)(a). The petition shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a r ule under

s. 120.52 and that the agency has not

adopted the statement by the rulemaking

procedure provided by s. 120.54.

11. The testimony by the AHCA witness during the

consolidated hearing does not constitute an agency statement,

much less an agency ru le. The March 4 letter provides

information regarding federal reporting requirements and is not

an agency rule.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition to Determine Invalidity of

Agency Stateme nts is dismissed.

DONE AND ORDERED this 30th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March , 2016 .

ENDNOTE S

1 / All references to the Florida Statutes are to the 2015

version, unless otherwise noted.

2 / A portion of the attachment to the March 8, 2008 , letter

contains:

What Must Be Reported:

A. The facility must ensure that ALL

allegations of abuse, neglect, injuries of

unknown origin, and

exploitati on/misappropriation of resident

property are reported immediately to the

administrator of the facility, the Agency for

Health Care Administration, the Department of

Children and Families, the Florida Abuse

Hotline, and to other officials in accordance

with state law.

3/ Resolved by Order dated March 3, 2016.

4/ These citations were later co rrected to section 408.815,

Florida Stat ute s .

5/ It appears there was at least one more page or attachment

to the letter; however, only one page was presented.

COPIES FURNISHED:

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Julie Gallagher, Esquire

Grossman Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Roa d

Tallahassee, Florida 32308

(eServed)

Stuart Fraser Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard Joseph Saliba, Esquire

Agency for Health Care Administr ation

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Ken Plante, Coordinator

Joint Admin istrat ive Proced ures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

( 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 commenced 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 fi ling fees prescribed by law,

with 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.