16-003681RP Dayspring Village, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Monday, October 24, 2016.

Summary: Petitioner lacked standing to challenge proposed rule 59A-36.001, because no real or immediate injury was demonstrated. Further, Petitioner failed to prove that the proposed rule is vague.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAYSPRING VILLAGE, INC.,

Petitioner,

vs. Case No. 16 - 3681RP

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.56(2), 120.569,

and 120.57(1) Florida Statutes (2016 ), 1/ on August 4 and 9, 2016,

in Tallahassee, Florida.

AP PEARANCES

For Petitioner: Shaddrick Haston, Esquire

2447 Millcreek Road, Suite 3

Tallahassee, Florida 32308

For Respondent: Richard Joseph Saliba, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

The issue in this matter is whether RespondentÓs proposed

Florida Administrative Code Rule 59A - 36.001 constitutes an

invalid exercise of delegated legislative authority. Before that

issue may be reached , however, it is necessary to determine

whether Petitioner has standing to challenge the proposed rule.

PRELIMINARY STATEMENT

On June 28, 2016, Petitioner, Dayspring Village, Inc.

(ÐPetitionerÑ) , file d with the Division of Administrative

Hearings (ÐDOAHÑ) a Petition Challenging the Validity of Rule

59A - 36.001, F.A.C. Petitioner file d its petition pursuant to

section 120.56(2) and challenges proposed rule 59A - 36.001 (Ðrule

59A - 36.001Ñ) of the Agency fo r Health Ca re Administration

(ÐAHCAÑ).

Following a pre - hearing conference, the parties agreed to a

final hearing date of August 4, 2016. On August 2, 2016, due to

an unanticipated conflict, Petitioner moved to bifurcate ( i.e. ,

continue ) the final hearing should it not be completed in one

day. The final hearing was held on August 4, 2016, but was not

completed on that date. The parties agreed to resume the hearing

on August 9, 2016, on which date the final hearing was concluded.

Prior to the final hearing , AHCA filed a Motion to Dismiss

on the Basis of Collateral Estoppel, a Motion to Dismiss, and a

Motion for Summary Final Order. The undersigned denied all three

motions. During the hearing, AHCA filed an additional Motion to

Dismiss alleging that Petiti oner lacked standing to initiate this

proposed rule challenge. The undersigned reserved ruling and

addresses the issue of standing in this Final Order.

Petitioner presented the testimony of Doug Adkins, its owner

and chief administrator. Petitioner Ós Exh ibits 1 through 4 were

admitted into evidence. AHCA presented the testimony of

Catherine Anne Avery. AHCA Ós composite Exhibit 1 was admitted

into evidence. 2/

A court reporter recorded the final hearing. A three - volume

T ranscript of the final hearing was filed with DOAH on August 29,

2016. At the close of the hearing, the undersigned advised the

parties that they could submit post - hearing submittals or

proposed final orders within ten days following DOAHÓs receipt of

the hearing transcript. Both parties filed Proposed Final Orders

which were duly considered in preparing this Final Order. 3/

FINDING S OF FACT

1. AHCA is the state agency responsible for the licensure

of assisted living facilities (ÐALFsÑ) in the State of Florida.

See C h . 429, Part I ; and C h. 408, Part II, Fla. Stat. As part of

its responsibilities, AHCA serves as the enforcement arm for the

licensed activity and operation of ALFs. See gen . , C h s . 408 and

429, Fla. Stat .; Fla. Admi n. Code R . 58A - 5 and 59A - 35.

2. Petitioner is currently li censed by AHCA to operate an

ALF in Hilliard, Florida. Accordingly, Petitioner falls under

AHCAÓs jurisdiction and is required to adhere to all rules

promulgated by AHCA, as well as the Department of Elder Affairs,

pertaining to ALFs. See § § 408.802(13) and 429.01(2), Fla. Stat.

3. Section 429.28 , Florida Statutes, is the Ðresident bill

of rightsÑ for ALFs. The resident bill of rights provides that

no resident of an ALF Ðshall be deprived of any civil or legal

rights, benefits, or privileges guaranteed by law, the

Constitution of the State of Florida, or the Constitution of the

United States as a resident of a facility.Ñ Section 429.28

enumerates 12 specific rights for ALF residents.

4. In its 2015 le gislative session, the Florida L egislature

amended s ection 429.28(3) (a) , which states (as amended):

[AHCA] shall conduct a survey to determine

general compliance with facility standards

and compliance with residentsÓ rights as a

prerequisite to initial licensure or

licensure renewal. [AHCA] shall adopt rul es

for uniform standards and criteria that will

be used to determine compliance with facility

standards and compliance with residentsÓ

rights.

5. Thereafter, AHCA drafted rule 59A - 36.001 entitled,

ÐStandards and Criteria for Determining Resident Rights.Ñ 4/ AHCA

published the proposed rule i n Vol ume 4 2, No. 50, March 14, 2016,

of the Florida Administrative Register. On June 8, 2016, AHCA

published a Notice of Change/Withdrawal amending several sections

of the proposed rule.

6. AHCAÓs stated purpose and effect of rule 59A - 36.001 is

to Ðcreate a new rule chapter regarding residentsÓ rights in

assisted living facilities licensed by the Agency. Section

429.28 directs the Agency to adopt rules for uniform standards

and compliance with residentsÓ rights.Ñ Ru le 59A - 36.001

specifically provides, in pertinent part 5/ :

59A - 36.001, Standards and Criteria for

Determining Compliance with Facility

Standards and Resident Rights

(1) DEFINITIONS.

In addition to the terms defined in Section

429.02, F.S., and Rule 58A - 5 .0131, F.A.C.,

the following definitions are applicable in

this rule chapter.

(a) ÐCore Survey TaskÑ means tasks conducted

by Agency survey staff that focu s on core

areas of regulations.

(b) ÐTimely MannerÑ means as soon as

possible, but not to exceed 24 hours of

Agency staff having requested materials.

7. Rule 59A - 36.001(2) is entitled ÐSURVEY PROCESS FOR

RESIDENT RIGHTSÑ and provides, in pertinent part:

The following core survey tasks shall be

utilized during survey activities in order to

determine the facilityÓs compliance with

resident rights pursuant to 429.28, F.S. and

58A - 5.0182, F.A.C.

1. The surveyor(s) conducts a tour of the

facility to determine if the residentsÓ

health, safety, and welfare are maintained.

The tour includes observations a nd

assessments of the following: . . . .

Thereafter, rule 59A - 36.001(2), in subsections 1 and 2, lists

approximately 35 Ðstandards and criteriaÑ a surveyor is to use to

determine whether the ÐresidentsÓ health, safety, and welfareÑ

are maintained by the A LF. In addition to the general reference

to section 429.28 and Florida Administrative Code R ule 58A -

5.0182, approximately 18 of the enumerated Ðstandards and

criteriaÑ refer to section 429.14(6) or a specific provision from

c hapter 58A - 5.

8. Catherine An ne Avery testified on AHCAÓs behalf.

Ms. Avery is the manager for the Assisted Living Unit at AHCA.

She was the lead developer a nd drafter of rule 59A - 36.001.

9. Ms. Avery explained that, as a prerequisite to initial

licensure or licensure renewal of A LFs, AHCA is responsible for

surveying (inspecting) ALFs to determine compliance with facility

standards and resid entsÓ rights. Pursuant to the L egislatureÓs

directive in section 429.28(3)(a), AHCA created rule 59A - 36.001

to standardize the survey process for all AHCA surveyors across

the state. Ms. Avery drafted the proposed rule to ensure that

surveyors use uniform criteria when determining whether an ALF

has general ly complied with required facility standards and

resid ent care standards and rights.

10. According to Ms. Avery, AHCA created rule 59A - 36.001

solely and exclusively to educate AHCA surveyors on how to

conduct ALF surveys. Rule 59A - 36.001 is not intended to be used

by ALFs or providers. Rule 59A - 36.001 essentially creates a

checklist of the ÐcoreÑ statutory and administrative rule

standards. AHCA intends for every surveyor to use the standards

and criteria outlined in rule 59A - 36.001 during each survey.

11. Ms. Avery relayed that a survey requires a surveyor to

tour the ALF facility ; obser ve ALF operations and services ;

interact with ALF staff and residents ; and interview ALF

employees and residents. During the survey, the surveyor is

attentive for any possible violations of Florida law. If the

surveyor finds evidence of a violation, the surveyor is to refer

to the pertinent statutory authority and related administrative

rules. After reviewing the applicable statutes and rules, if the

surveyor determines that the ALF has committed a violation, the

surveyor may issue a State ment of Deficie ncy to the ALF.

12. Ms. Avery testified that each Ðstandard and criteriaÑ

listed in rule 59A - 36.001 is based on existing statutory and rule

authority. Ms. Avery explained that rule 59A - 36.001 does not

impose any requirements on an ALF or include any crit eria that is

not already set forth in Florida statutes or other agency rules.

Similarly, the proposed rule does not create new standards or

criteria with which Petit ioner is required to comply.

13. Therefore, because ALFs must comply with the existing

st atutes and administrative rules listed in r ule 59A - 36.001,

Ms. Avery testified that the proposed rule will not affect

Petitioner. Ms. Avery expressed that AHCA will not cite rule

59A - 36.001 to impose administrative penalties on Petitioner (or

any other A LF). Any deficiency a surveyor might identify during

a survey is encompassed within other applicable rules or

statutory authority. 6/ Accordingly, Petitioner cannot be

sanctioned by AHCA under rule 59A - 36.001 for failure to comply

with Ðfacility stan dards Ñ or ÐresidentsÓ rights.Ñ

14. Ms. Avery conceded that rule 59A - 36.001 does not record

every statute or rule provision pertaining to Ðfacility

standardsÑ and ÐresidentsÓ rights.Ñ She explained that, in

compiling one list of uniform standards and criteria, AHCA could

not practically include every factor that might impact an ALF

residentÓs safety and well - being. Ms. Avery did not believe it

was possible to delineate every area of concern or condition that

affects the Ðlegal rights, benefits, or privilegesÑ of ALF

residents. Instead, AHCA fashioned rule 59A - 36.001 to reference

only the Ðcore survey tasks.Ñ These tasks focus on the core area

of regulations that are designed to protect the health, safety,

and welfare of ALF residents. In setting down uniform standards

into one rule, AHCA wanted to focus its surveyors on those areas

that are most important and have the highe st impact on residentsÓ

rights.

15. At the final hearing, Petitioner elicited testimony

from Ms. Avery that AHCA surveyors may utilize ot her resources

during surveys that are not incorporated into rule 59A - 36.001.

These resources include the Aspen Regulation Set (ÐAspen Reg

SetÑ) and the Assisted Living Resource Manual (ÐResource

ManualÑ). These two documents provide a surveyor with lists of

AHCA protocols, statutory references, and various investigative

forms that offer guidance on how a surveyor is to conduct a

survey or gather evidence to assess an ALFÓs compliance with

governing law. The Aspen Reg Set contains a list of pertinent

stat utes and administrative rules a surveyor may use to assign

deficiencies. The Resource Manual contains an interview

worksheet that a surveyor may use while questioning facility

staff, residents, or residentsÓ family members.

16. Ms. Avery explained that r ule 59A - 36.001 was not

designed to directly replace the Aspen Reg Set or the Resource

Manual. Instead, all these resources combine to provide a

ÐtoolboxÑ for the surveyor to use to determine compliance. The

Aspen Reg Set and the Resource Manual are merel y tools the

surveyor may employ at his or her discretion. No surveyor is

required to use the documents during a survey. In addition,

Ms. Avery explained that the statutes and administrative rules

cited in the Aspen Reg Set or the Resource Manual consist of the

same law that A HCA listed in rule 59A - 36.001.

17. Ms. Avery also testified that section 429.28 authorizes

AHCA surveyors to refer to recognized Ðcommunity standardsÑ

during ALF surveys. Section 42 9.28(1)(j) specifically states:

Every resident of a facility shall have the

right to:

* * *

(j) Access to adequate and appropriate

health care consistent with established and

recognized standards within the community.

AHCA, however, did not incorporate into rule 59A - 36.001 all the

various Flori da Ðcommunity standardsÑ that a surveyor may

encounter to determine an ALFsÓ compliance with residentsÓ

rights. Ms. Avery explained that Ðcommunity standardsÑ are not

codified in statute. In addition, AHCA does not have authority

to define Ðcommunity sta ndards.Ñ Instead, AHCA surveyors

consider community standar ds on a case - by - case basis depending

upon facts and circumstances that are particu lar to the specific

community.

18. Ms. Avery also addressed a specific provision AHCA

included in rule 59A - 36.001 regarding the time period in which

an ALF must produce documents following a surveyorÓs request.

Rule 59A - 36.001(2)(4) states that, ÐThe facility must provide

agency staff with requested documents in a timely manner and

allow the age ncy staff to obtain copies.Ñ (E mphasis added) .

Rule 59A - 36.001(1)(b) defines Ðtimely mannerÑ to mean Ðas soon as

possible, but not to exceed 24 hours of Agency staff having

requested materials.Ñ

19. Ms. Avery explained that the time period for an ALF to

produce documents i s already addressed in existing Florida law.

Specifically, rule 58A - 5.024 provides that an ALF Ðmust maintain

required records in a manner that makes such records readily

available at the licenseeÓs physical address for review by a

legally authorized enti ty . . . Ò readily availableÓ means the

ability to immediately produce documents, records, or other such

data, either in electronic or paper format, upon request. Ñ

(E mphasis added) . AHCA decided to use Ð24 hoursÑ in rule 59A -

36.001(1)(b) instead of the te rm ÐimmediatelyÑ as a way to

provide the surveyor a workable frame of reference when

requesting documents from ALFs. Instead of demanding that an ALF

produce documents Ðimmediately,Ñ the surveyor will have the

discretion to grant an ALF a more practical t ime period to

produce the records ( i.e. , within 24 hours). Essentially, AHCA

i ntended surveyors to use the 24 - hour time period as a rule of

thumb.

20. Ms. Avery opined that Petitioner will not be affected

by a surveyorÓs use of the term Ðtimely mannerÑ i n rule 59A -

36.001(1)(b). AHCA can sanction an ALF for failing to produce

records ÐimmediatelyÑ under existing statutes and administrative

rules. See , e.g. , §§ 408.811(3), 429.14, and 429.34(2) , Fla.

Stat . AHCA will not cite to rule 59A - 36.001 for an ALF Ós failure

to produce records in a Ðtimely manne r.Ñ

21. Finally, Ms. Avery pointed out that AHCA does not have

rulemaking authority regarding facility standards or residentsÓ

rights. Instead, the Department of Elder Affairs has sole

authority under Flori da law to promulgate rules for residentsÓ

rights in chapter 429. See § 429.41, Fla. Stat. Facility

standards for ALFs are set forth in chapter 429, p art I, and

chapter 58A - 5. Therefore, AHCA cannot, and did not, include any

Ðuniform standards and criter iaÑ in rule 59A - 36.001 that expand,

interpret, reduce, or otherwise modify the rules for facility

standards and residentsÓ rights promulgated by the Department of

Elder Affairs.

22. PetitionerÓs owner and executive director, Douglas

Adkins, testified on P etitionerÓs behalf. Mr. Adkins has

administered Petitioner for over 29 years.

23. Petitioner asserts that rule 59A - 36.001 is vague in

that the proposed rule lacks adequate specificity. Because of

its vagueness, Petitioner argues that rule 59A - 36.001 fai ls to

establish adequate standards for AHCA decisions and provides AHCA

surveyors too much discretion during the survey process.

Mr. Adkins expressed that the Ðuniform standards and criteriaÑ

listed in rule 59A - 36.001 do not contain sufficient detail to

fairly and reasonably inform ALFs how AHCA surveyors will

determine compliance with applicable statutes and rules.

Mr. Adkins expounded that AHCA must enunciate more clearly what

regulations surveyors might cite to sanction ALFs, and how t hey

will determ ine compliance.

24. Mr. Adkins explained that Petitioner initiated this

rule challenge to ensure that it is fully aware of AHCAÓs

expectations prior to its licensure renewal surveys. To make

sure that its ALF services comply with all legal requirements,

Petitioner seeks a comprehensive understanding of how AHCA

surveyors will determine compliance with applicable facility

standards and residentsÓ rights. Mr. Adkins testified that he

keenly reviews all materials and resources to which AHCA

surveyors may re fer during their surveys. He also studies AHCA

postings and informational releases to asc ertain pertinent

Florida law. Having AHCA set forth in rule 59A - 36.001 the exact

standards its surveyors will use to determine ALF compliance will

greatly assist him achieve his goal of administrating his ALF in

full compliance with Florida statutes and administrative rules,

as well as be fully prepared for Petitione rÓs licensure renewal

surveys.

25. Despite his claim, however, Mr. Adkins did not point to

any distinc t example (or prospective AHCA survey) where an AHCA

surveyor could cite rule 59A - 36.001 as a basis for a legal

deficiency or violation while surveying his facility. Neither

did Mr. Adkins identify any standard or criteria set forth in

rule 59A - 36.001 wit h which Petitioner might fail to comply.

Further, Mr. Adkins did not present evidence of any imminent or

pending adverse administrative action Petitioner might or will

confront based on AHCAÓs prom ulgation of rule 59A - 36.001.

26. The competent substantia l evidence presented at the

final hearing fails to prove that Petitioner is substantially

affected by rule 59A - 36.001. Petitioner did not show that the

proposed rule will cause a real or immediate injury in fact. In

addition, Petitioner failed to establi sh, by a preponderance of

the evidence in the record, a factual basis that the proposed

rule is vague. Conversely, AHCA demonstrated that rule 59A -

36.001 is not an invalid exercise of delegated legislative

authority as to PetitionerÓs objection that the p roposed rule is

vague.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. See §§ 120.56 and 120.57(1),

Fla. Stat.

28. Section 120.56(1)(a) states: ÐAny person substantially

affected by a rule or a proposed rule may seek an administrative

determination of the invalidity of the rule on the ground that

the rule is an invalid exercise of delegated legislative

authority.Ñ A party challenging a proposed rule has the burden

of establishing a factual bas is for the objections to the rule.

SW Fla. Water Mgmt. Dist. v. Charlotte Cnty. , 774 So. 2d 903, 908

(Fla. 2d DCA 2001)(quoting St. John's River Water Mgmt. Dist. v.

Consolidated - Tomoka Land Co. , 717 So. 2d 72, 77 (Fla. 1st DCA

1998)). The agency then ha s the burden to prove by a

preponderance of the evidence that the proposed rule is not an

invalid exercise of delegated legislative authority as to the

objections raised. See § 120.56(2)(a), Fla. Stat.

29. Section 120.56(1)(e) provides that a rule challe nge

proceeding is de novo in nature, and the standard of proof is a

preponderance of the evidence. The Administrative Law Judge

should consider and base the decision upon all the available

evidence, regardless of whether the evidence was placed before

the agency during its rulemaking proceedings. Dep Ó t of Health v.

Merritt , 919 So. 2d 561, 564 (Fla. 1st DCA 2006) (concluding that

the Legislature has overruled the courtÓs holding in Board of

Medicine v. Florida Academy of Cosmetic Surgery , 808 So. 2d 943

(F la. 1st DCA 2002), that an Administrative Law JudgeÓs role in a

proposed rule challenge is limited to a review of the record and

a determination as to whether the agency action was supported by

legally sufficient evidence).

30. AHCA raises a preliminary j urisdictional issue

asserting that Petitioner lacks standing to challenge rule 59A -

36.001. Therefore, the undersigned will address PetitionerÓs

standing prior to considering the merits of PetitionerÓs rule

challenge. See generally Ferreiro v. Phila. Inde m. Ins. Co. , 928

So. 2d 374, 376 (Fla. 3d DCA 2006)(noting that Ð[t]he issue of

standing is a threshold inquiry which must be made at the outset

of the case before addressing whether the case is properly

maintainable as a class action Ñ).

31. In order to h ave standing to challenge the validity of

a proposed administrative rule, a person must be Ðsubstantially

affectedÑ by the rule. See § 120.56(1)(a), Fla. Stat.

Therefore, Petitioner has the burden to prove, by a preponderance

of the evidence, that it wou ld be substantially affected by

rule 59A - 36.001. See § 120.56(2)(a), Fla. Stat.

32. To establish standing under the Ðsubstantially

affectedÑ test, a party must show (1) that the rule or policy

will result in a real or immediate injury in fact, and (2) t hat

the alleged interest is within the zone of interest to be

protected or regulated. Off. of Ins. Reg . v. Secure Enters.,

LLC , 124 So. 3d 332, 336 (Fla. 1st DCA 2013); see also Jacoby v.

Fla. Bd. of Med. , 917 So. 2d 358, 360 (Fla. 1st DCA 2005).

33. To satisfy the sufficiently real and immediate injury

in fact element, the injury must not be based on pure speculation

or conjecture. Lanoue v. Fla. Dep Ó t of Law Enf . , 751 So. 2d 94,

97 (Fla. 1st DCA 1999). A Ðreal or immediate injury in factÑ

does not inc lude injury that is abstract, conjectural,

hypothetical, or speculative. Rather, a rule challenge

petitioner must allege that it has sustained or is immediately in

danger of sustaining some direct injury as a result of the

challenged official conduct. Vi llage Park Mobile Home AssÓn . v.

State, Dep't of Bus . Reg . , Div. of Fl a. Land Sales, etc. , 506 So.

2d 426, 433 (Fla. 1st DCA 1987). Stated differently, the

petitionerÓs allegations Ðmust be of Òsufficient immediacy and

realityÓ to confer standing.Ñ Id. ; see also Abbott Labs. v.

Mylan Pharms., Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009) .

34. Petitioner alleges that it has standing to bring this

proposed rule challenge because, as a licensed ALF, it will be

required to comply with rule 59A - 36.001. Pe titioner argues that,

as an entity AHCA regulates, it is entitled to know the exact

standards and criteria AHCA surveyors will use to determine its

compliance with facility standards and residentsÓ rights.

Petitioner desires AHCA to adopt a rule that more fully informs

ALFs exactly how AHCA surveyor s will determine compliance.

35. With regard to the second prong of the substantially

affected test, Petitioner met its burden of showing that its

alleged interest is within the Ðzone of interestÑ of rule 59A -

3 6.001. Petitioner, as an ALF, is regulated by AHCA.

Accordingly, AHCA surveyors will use the rule 59A - 36.001 uniform

standards and criteria to inspect it to determine general

compliance with facility standards and resident rights. See

generally Televisu al CommcÓns v. DepÓt of Labor & Emp. Sec./Div.

of WorkersÓ Comp. , 667 So. 2d 372, 374 (Fla. 1st DCA 1995) .

36. As for the first prong of the substantially affected

test, however, based on the evidence produced at the final

hearing, Petitioner fails to est ablish that it is immediately in

danger of sustaining some direct injury as a result of AHCAÓs

promulgation of rule 59A - 36.001. AHCA provided persuasive

evidence and testimony that rule 59A - 36.001 will not cause

Petitioner a real or immediate injury in fa ct. Ms. Avery

credibly testified that the proposed rule imposes no new

statutory or regulatory requirements on PetitionerÓs facility or

business operations. Rule 59A - 36.001 does not create new

standards for Petitioner that are not already established by

Florida statutes and administrative rules. 7/ AHCA will not use

rule 59A - 36.001 as a basis to impose sanctions or other penalties

for PetitionerÓs noncompliance. Instead, Rule 59A - 36.001 is

directed exclusively for use by AHCA surveyors, not ALFs, for use

during surveys.

37. Furthermore, based on the evidence in the record, the

future harm about which Petitioner complains rests on too much

conjecture and speculation to conclude that it is immediately in

danger of sustaining some direct injury as a result of the

proposed rule. Petitioner ostensibly initiated this rule

challenge to be as prepared as possible for future licensure

renewal surveys. However, Petitioner has not shown, by a

preponderance of the evidence, how any provisions in rule 59A -

36.001 wil l cause it real or immediate injury. Petitioner did

not establish that rule 59A - 36.001 will require it to comply with

some new or additional statutory or regulatory requirements

regarding facility standards or residentsÓ rights. The proposed

rule, on its fact, does not place Petitioner at risk of

administrative fines or sanctions that are not already expressed

in statutes and administrative rules. Should an AHCA surveyor

determine that Petitioner failed to comply with a provision of

the resident bill or rights, AHCA will cite to section 4 29.28,

not to rule 59A - 36.001.

38. Moreover, Petitioner d id not demonstrate how rule 59A -

36.001 will make it change how it conducts its business or the

services it offers. Petitioner did not show how the proposed

rule w ill affect its preparation for a licensure renewal survey.

Petitioner did not convey how rule 59A - 36.001 will force it to

alter how it maintains its facility or protects residentsÓ

rights. Petitioner did not relay that it will be required to

modify its p olicies and procedures or adjust how it educates,

prepares, or trains its staff.

39. At the final hearing, Petitioner took issue with two

provisions AHCA included in the proposed rule that appear to be

specifically directed at ALFs. Ms. Avery testified t hat AHCA

drafted rule 59A - 36.001 solely to guide AHCA surveyors.

Petitioner disputed this assertion by first pointing to the

requirement in rule 59 A - 36.001(2)4 that: ÐThe facility must

provide agency staff with requested documents in a timely

manner . . . .Ñ Rule 59 A - 36.001(1)(b) defines Ð timely mannerÑ to

mean Ðas soon as possible, but not to exceed 24 hours.Ñ

Ms. Avery, however, persuasively testified that AHCA will not

cite rule 59A - 36.001(1)(b) as a basis for a deficiency should

Petitioner not prod uce documents within 24 hours. Enforcement of

this provision is controlled by rule 58A - 5.024 , which provides

that an ALF must Ðimmediately produce documents, records, or

other such data . . . upon request.Ñ 8/ Rule 58A - 5.024 was adopted

by the Department of Elder Affairs prior to rule 59A - 36.001.

Thus, AHCA will not sanction Petitioner under rule 59A -

36.001(1)(b) if a surveyor determines that Petitioner failed to

provide requested d ocuments in a Ðtimely manner.Ñ

40. Petitioner also objected to rule 59A - 3 6.001(2)2.a. ,

which provides : ÐThe facility may not restrict Agency staff from

conducting confidential interviews pursuant to 429.14(6), F.S.Ñ

As with an ALFÓs production of records, enforcement of this

provision is controlled by an existing statute, sec tion 429.14.

Section 429.14(6) states : ÐThe licensee may not restrict agency

staff . . . from conducting confidential interviews with facility

staff or any individual who receives services from the facility.Ñ

The reference of rule 59A - 36.001 to the spec ific statutory

section governing interviews informs Petitioner that any legal

obligations regarding surveyor interviews are governed by that

statute, not rule 59A - 36.001(2)2.a. Consequently, the proposed

ruleÓs standard that Petitioner may not restrict AH CA staff from

conducting confidential interviews will not cause Petitioner a

real or immediate injury in fact.

41. In sum, Petitioner did not show, by a preponderance of

the evidence, that rule 59A - 36.001 will cause it to suffer a real

or immediate injury in fact. Therefore, Petitioner did not meet

its burden of proving that it will be substantially affected by

rule 59A - 36.001. Consequently, Petitioner failed to demonstrate

that it has standing to challenge the validity of rule 59A -

36.001.

42. Further, even if Petitioner could demonstrate that it

has standing to challenge rule 59A - 36.001, AHCA met its burden of

proving, by a preponderance of the evidence, that rule 59A - 36.001

is not an invalid exercise of delegated legislative authority.

Petitioner obje cts to the Ðuniform standards and criteriaÑ listed

in rule 59A - 36.001 as being impermissibly vague in viol ation of

section 120.52(8)(d).

43. Sect ion 120.52(8) states in pertinent part :

(8) ÐInvalid exercise of delegated

legislative authorityÑ means actio n that goes

beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

* * *

(d) The rule is vague, fails to e stablish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

44. An administrative rule is invalid for vagueness under

section 120.52(8)(d) Ðif it requires the performance of an act in

terms that are so vague that men of common intelligence must

guess at its meaning.Ñ SW Fla. Water Mgmt. Dist. , 774 So. 2d at

915 , citing Cole Vision Corp. v. Dep Ó t of Bus. & Prof'l Reg . , 688

So. 2d 404 (Fla. 1st DCA 1997); see also Witmer v. Dep Ó t of Bus.

& Prof'l Reg . , 662 So. 2d 1299, 13 02 (Fla. 4th DCA 1995).

45. Petitioner argues that rule 59A - 36.001 does not contain

sufficient detail to enable ALFs to determine Ðwhat and howÑ AHCA

will conduct surveys. Petitioner, however, does not complain

that any terms or provisions in the propose d rule are vague in

and of themselves. Petitioner laments that the proposed rule

does not completely encompass all governing statutory provisions

pertaining to Ðfacility stand ardsÑ and ÐresidentsÓ rights.Ñ

46. The undersigned concludes that rule 59A - 36.0 01

appropriately implements section 429.28(3)(a). The Florida

L egislature directed AHCA to survey ALFs to determine general

compliance with facility standards and residentsÓ rights prior to

licensure or licensure renew al . In furtherance of this task, the

L egislature instructed AHCA to adopt rules creating uniform

standards and criteria that surveyors will use during their

surveys. Rule 59A - 36.001 accomplishes this purpose. The

proposed rule carries out the governing statuteÓs objective by

listing unifor m standards and criteria to which AHCA surveyors

will refer to determine an ALFÓs general compliance with

applicable statutes and rules. As drafted, rule 59A - 36.001

provides coherent and fair notice of the provisions and

regulations surveyors will apply w hen conducting initial

licensure and licensure renewal surveys. Accordingly, the

undersigned concludes that r ule 59A - 36.001 provides persons of

Ðcommon intelligenceÑ sufficient notice of the standards and

criteria AHCA surveyors will apply to determine co mpliance with

required facility st andards and residentsÓ rights.

47. Furthermore, PetitionerÓs contention that rule 59A -

36.001 is vague because it does not incorporate all the

Ðcommunity standardsÑ in Florida is not persuasive. Rule 59A -

36.001(2) informs AHCA surveyors that the Ðcore survey tasksÑ to

be used to determine compliance with residentsÓ rights are

derived from section 429.28 and rule 58A - 5.0182. Section

429.28 (1) (j) specifically states that every ALF resident shall

have the right to Ð[a]ccess to adequate and appropriate health

care consistent with established and recognized standards within

the community.Ñ 9/ Rule 59A - 36.001 fairly notifies a person of

Ðcommon intelligenceÑ that a surveyor may consider Ðstandards

within the communityÑ while con ducting a survey to determine

general compliance with residentsÓ rights.

48. Similarly, PetitionerÓs argument that rule 59A - 36.001

is vague because it does not reference the Resource Manual or the

Aspen Reg Set is not persuasive. Rule 59A - 36.001 fairly n otifies

Petitioner of the Ðuniform standards and criteriaÑ AHCA surveyors

will use during surveys. While surveyors might employ the Aspen

Reg Set or the Resource Manual as reference sources, AHCA will

only determine ALF compliance with facility standards and

residentsÓ rights based on the existing statutory and rule

provisions that are identified in rule 59A - 36.0 01.

49. Finally, Petitioner objects to AHCA limiting the

standards and criteria listed in rule 59A - 36.001 to just the

Ðcore survey tasks.Ñ Petit ioner argues that section 429.28(3)(a)

does not allow AHCA to pick and choose which facility standards

and residentsÓ rights to include in its Ðuniform standards.Ñ

However, a proposed rule should not be invalidated simply because

it does not appear to the challenger to be the best choice for

accomplishing the agencyÓs objective. ÐAn agencyÓs

interpretation of the guidelines that it is charged with

administrating is entitled to judicial deference, and should not

be overturned as long as the interpretation is in the range of

permissible interpretations.Ñ Atl. Shores Resort, LLC v. 507

South Street Corp ., 937 So. 2d 1239, 1245 (Fla. 3d. DCA 2006);

see also Paloumbis v. City of Miami Beach , 840 So. 2d 297, 298 - 99

(Fla. 3d DCA 2003)(explaining that "administra tive interpretation

is entitled to judicial deference as long as it is within the

range of possible permissible interpretations"); and Bd. of Trs .

of the Int . Imp . Trust Fund v. Levy , 656 So. 2d 1359, 1363

(Fla. 1st DCA 1995)("If an agency's interpretatio n of its

governing statutes is one of several permissible interpretations,

it must be upheld, despite the existence of reasonable

alternatives.").

50. The discretion AHCA used to formulate the uniform

standards and criteria listed in rule 59A - 36.001 is fa ir and

reasonable based on the instruction in section 429.28 for AHCA to

conduct a survey to determine general compliance with facility

standards and residentsÓ rights. AHCA persuasively testified

that its surveyors will not use r ule 59A - 36.001 as a basis to

deny an ALFÓs application for licensure or licensure renewal.

Instead, AHCA will cite the authority referenced in the proposed

rule, e.g. , section 429.28 , for violations of the resident bill

of rights or rule 58A - 5.0182 for violations of resident care

standards. See e.g. SW Fla. Water Mgmt. , 774 So. 2d at 917

( [W ]here the court held that the Southwest Florida Water

Management District adopted Ðreasonable rulesÑ in connection with

its water use permitting duties in implementing section 373.223 ,

Florida Statutes . The court noted that the Ðsufficiency of a

rule's standards and guidelines may depend on the subject matter

dealt with and the degree of difficulty involved in articulating

finite standardsÑ and concluded that Ðwhere the considerations

are site - specific as the ALJ found, or specific to the individual

WUP applicant as are the economic considerations, the [proposed

rule] is not vague because the District failed to or was unable

to articulate more refined criteria, nor does it vest unbridled

discre tion in the District.Ñ) .

51. Based on the competent substantial evidence and

testimony in the record, the undersigned concludes that rule 59A -

36.001 is not vague. Rule 59A - 36.001 sets forth reasonable and

sufficient guidance regarding how AHCA surveyors will determine

PetitionerÓs general compliance with the facility standards and

residentsÓ rights required by Florida law. AHCA has proven, by a

preponderance of the evidence, that rule 59A - 36.001 is not an

invalid exercise of delegated legislative authori ty as to

PetitionerÓs objection that the proposed rule is vague.

Accordingly, PetitionerÓs challenge to proposed rule 59A - 36.001

must be dismissed.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, Petitioner has no standing, and AHCAÓ s proposed rule 59A -

36.001 is not an invalid exercise of delegated legislative

authority. Accordingly, it is ORDERED that Dayspring Village ,

Inc. Ós challenge to rule 59A - 36.001 is dismissed.

DONE AND ORDERED this 24th day of October , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 24th day of October, 2016 .

ENDNOTE S

1/ All statutory references are to the 2016 Florida Statutes,

unless otherwise noted.

2/ At AHCAÓs request, the undersigne d took official recognition

of : c hapter 58A - 5; Agency for Health Care Admin istration v.

Dayspring Village, Inc. , Case No. 13 - 1451 ( Fla. DOAH Apr . 28,

2014 ; A HCA June 3, 2014); Dayspring Village, In c. v. Agency for

Health Care Admin istration , Case No. 13 - 1 836RU ( Fla. DOAH

June 24, 2013); an d Florida Admin istrative Code R ule 28 -

106.213(6).

3/ After the ten - day day time period designated for submitting

post - hearing submittals, AHCA filed a document entitled Objection

to PetitionerÓs Proposed Final Order. Promptly thereafter,

Petitioner filed a document entitled Response to AgencyÓs

Objection to Proposed Final Order. T he undersign ed notes the

comments by both parties. To the extent that AHCAÓs ÐobjectionÑ

moves for some relief, AHCA Ós motion is denied .

4 / In addition to the directive in section 429.28, AHCAÓs

rulemaking authority is expressed in section 408.819 , Florida

Statutes .

5/ The quoted sections of rule 59A - 36.001 include the amendments

AHCA published in its Notice of Change/Withdrawal on June 8 ,

2016.

6/ See , e.g. , Section 429.14 which states, in pertinent part:

(1) In addition to the requirements of part

II of chapter 408, the agency may deny,

revoke, and suspend any license issued under

this part and impose an administrative fine in

the ma nner provided in chapter 120 against a

licensee for a violation of any provision of

this part, part II of chapter 408, or

applicable rules, or for any of the following

actions by a licensee, any person subject to

level 2 background screening under s. 408.8 09,

or any facility staff:

(a) An intentional or negligent act seriously

affecting the health, safety, or welfare of a

resident of the facility.

* * *

(c) Misappropriation or conversion of the

property of a resident of the facility.

(d) Fail ure to follow the criteria and

procedures provided under part I of chapter

394 relating to the transportation, voluntary

admission, and involuntary examination of a

facility resident.

7/ As stated above, AHCA is not authorized to adopt rules

regarding fa cility standards as that responsibility is de legate d

to the Department of Elder Affairs. See § 429.41, Fla. Stat.

Consequently, during surveys of ALFs, AHCA surveyors may only

apply those facility standards that have been previously

established by the De partment of Elder Affairs.

8/ See also s ection 429.14(6), which states:

As provided under s. 408.814, the agency

shall impose an immediate moratorium on an

assisted living facility that fails to

provide the agency with access to the

facility or prohibit s the agency from

conducting a regulatory inspection. The

licensee may not restrict agency staff from

accessing and copying records at the agencyÓs

expense or from conducting confidential

interviews with facility staff or any

individual who receives servi ces from the

facility.

9/ See also s ectio n 429.29(3) and (4), which reference community

standards and state:

3) In any claim brought pursuant to this

section, a licensee, person, or entity shall

have a duty to exercise reasonable care.

Reasonable care is that degree of care which

a reasonably careful licensee, person, or

entity would use under like circumstances.

4) In any claim for residentÓs rights

violation or negligence by a nurse licensed

under part I of chapter 464, such nurse shall

have the dut y to exercise care consistent

with the prevailing professional standard of

care for a nurse. The prevailing

professional standard of care for a nurse

shall be that level of care, skill, and

treatment which, in light of all relevant

surrounding circumstanc es, is recognized as

acceptable and appropriate by reasonably

prudent similar nurses.

COPIES FURNISHED:

Shaddrick Haston, Esquire

2447 Millcreek Road , Suite 3

Tallahassee, Florida 32308

(eServed)

Stuart 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 Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

D. Carlton Enfinger, Esquire

Agen cy for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior , Interim Secretary

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Richard J. S hoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Ken Plante, Coordinator

Joint Admi nistrative Procedures 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 Fi nal 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 filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellat e district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.