17-006888 Delray Group, Llc, D/B/A Lake View Care Center At Delray vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, June 21, 2018.

Summary: Petitioner's request for extension of CON validity periods was not timely filed and, accordingly, CONs and Exemption terminated by operation of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELRAY GROUP, LLC, d/b/a LAKE

VIEW CARE CENTER AT DELRAY,

Petitioner,

vs. Case No. 17 - 6888

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RE COMMENDED ORDER

Pursuant to notice, on February 19, 2018, a final hearing

in this proceeding was conducted before Administrative Law Judge

W. David Watkins, in Tallahassee, Leon County, Florida, on

behalf of the Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Peter A. Lewis, Esquire

Law Offices of Peter A. Lewis, P.L.

3023 N orth Shannon Lakes Drive, Suite 101

Tallahassee, F lorida 32309

For Respondent: Lindsey L. Miller - Hailey, Esquire

Richard Joseph Sali ba, Esquire

Agency f or Healthcare Administration

2727 Mahan Drive, M ail S top 7

Tallahassee, F lorida 32308

STATEMENT OF THE ISSUE

Whether PetitionerÓs request for extension of deadlines

relating to Certificate of Need (CON) Nos. 10176 an d 10231, and

Exemption No. E140013 was timely filed, pursuant to Florida

Administrative Code Rule 59C - 1.018(3), and s ection

408.040(2)(c), Florida Statutes. 1/

PRELIMINARY STATEMENT

On November 17, 2017, the Agency for Health Care

Administration (AHCA or Ag ency ) gave notice to Delray Group,

LLC , d/b/a Lake View Care Center at Delray (Delray) of its

intent to deny DelrayÓs request for extension of CON termi nation

dates for CON Nos. 10176 and 10231, and Exemption No. E140013.

Delray timely filed a request for formal hearing on the matter

November 29, 2017, which the Agency referred to DOAH on

December 22, 2017. Thereafter, AHCA filed a Motion to

Relinquish Jurisdiction on December 28, 2017, with attached

exhibits 1 through 5. The motion was denied by Order d ated

January 9, 2018, and a final hearing was held at the above

mentioned time and location. No witnesses were called to

testify at hearing. Respondent Ós exhibits 1 through 5 were

offered and admitted into evidence without objection.

The one - volume T r anscript of the final hearing was filed

May 3, 2018. The parties timely filed Proposed Recommended

Orders, both of which have been carefully considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. AHCA is the state agency responsib le for administering

the CON program, and is delegated authority to regulate and

monitor C ON s in the State of Florida, pursuant to the Health

Facility and Services Development Act, s ections 408.031 - 045.

2 . Delray Group, LLC, is the holder of CON Nos. 101 76

and 10231, and Exemption No. E140013

3 . On September 21, 2017, AHCA issued a letter to Delray

granting their extension request submitted September 15, 2017.

The letter stated that the request extended the termination date

to December 1, 2017, unless another extension request was

submitted to the Agency by November 16, 2017.

4 . On November 17, 2017, AHCA was hand - delivered a letter,

dated November 16, 2017, requesting another extension for CON

Nos. 10176 and 10231, and Exemption No. E140013. The let ter

stated that Ðthis request is timely and in accordance with

Subsection 408.040(2)(c), Fla. Stat. and Section 59C - 1.018(3),

F.A.C.Ñ The letter bears a stamp marked ÐH and Delivery,

Received November 17, 2017 CON . Ñ

5 . AHCAÓs Building 1 VisitorÓs Log, co ntaining dates

ranging from November 15, 2017 through November 27, 2017, shows

the authorized representative for Delray, Tracy Merritt, as

signing into the building on No vember 15, 2017 , and on

November 17, 2017.

6 . On November 17, 2017, AHCA responded t o the request for

extension by certified mail, denying the request for failure to

timely file in accordance with s ection 408.040(2)(c), and

rule 59C - 1.1018(3) (2016).

7 . In a sworn affidavit, Marisol Finch, the s upervisor of

the CON and Commercial Manag ed Care Units for AHCA, testified as

to the circumstances of her receipt of DelrayÓs request for

extension. Ms. Fitch asserted that the request was denied based

on her knowledge of the previous request for extension and her

understanding that the new CON termination date was December 1,

2017, and the deadline for requesting another extension was

November 16, 2017.

CONCLUSIONS OF LAW

8. T he Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding p ursuant to sections 120.569 and 120.57(1), Florida

Statutes.

9 . AHCA is authorized to evaluate and make final

determinations on CON extension requests, pursuant to section

408.040(2)(c).

10 . Delray, as the party asserting the affirmative of an

issue, bears the burden of proof in demonstrating its

entitlement to relief by a preponderance of evidence. Young v.

DepÓt of Cmty. Affairs , 625 So. 2d 831, 833 (Fla. 1993); see

also Beshore v. DepÓt of Fin. Servs . , 928 So. 2d 411 (Fla. 1st

DCA 2006); Fla. DepÓt of Transp. v. J.W.C. Co., Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); Balino v. DepÓt of HRS , 348 So. 2d 349

(Fla. 1st DCA 1977); § 120.57(1)(j), Fla. Stat.

11 . Section 408.040 provides in relevant part:

(2)(a) Unless the applicant has commenced

construction, if the project provides for

construction, unless the applicant has

incurred an enforceable capital expenditure

commitment for a project, if the project

does not provide for construction, or unless

subject t o paragraph (b), a certificate of

need shall terminate 18 months after the

date of issuance, except a certificate of

need of an entity which was issued on or

before Ap ril 1, 2009, shall terminate

36 months after the date of issuance. The

agency shall moni tor the progress of the

holder of the certificate of need in meeting

the timetable for project development

specified in the application, and may revoke

the certificate of need, if the holder of

the certificate is not meeting such

timetable and is not makin g a good - faith

effort, as defined by rule, to meet it.

(b) A certificate of need issued to an

applicant holding a provisional certificate

of authority under chapter 651 shall

terminate 1 year after the applicant

receives a valid certificate of authority

from the Office of Insurance Regulation of

the Financial Services Commission.

( c) The certificate - of - need validity period

for a project shall be extended by the

agency, to the extent that the applicant

demonstrates to the satisfaction of the

agency that good - faith commencement of the

project is being delayed by litigation or by

governmental action or inaction with respect

to regulations or permitting precluding

commencement of the project.

§ 408.040(2)(a) - (c), Fla. Stat.

1 2 . R ule 59C - 1.018(3) prov ides in pertinent part:

(3) Extension of Validity Period.

(a) Extensions of up to 60 calendar days

per each request may be requested by a

Certificate of Need holder who is

approaching the end of the 18 - month validity

period. The holder must submit a w ritten

request to the Agency for approval at least

15 calendar days before the Certificate of

Need terminates. The filing of a request

does not extend the validity period of a

Certificate of Need. Failure to timely file

is a waiver of the right to reques t an

extension. This request for an extension

must demonstrate that good faith

commencement of the project is being delayed

by litigation or by governmental action or

inaction with respect to regulations or

permitting which precludes commencement on

the p roject. The request must provide the

Agency a detailed explanation of the problem

and a plan of action to be undertaken by the

holder to resolve the problem within the

time frame requested.

1 3 . Rule 59C - 1.018(3) states that the filing of a request

for e xtension does not extend the validity period of a CON. The

rule further states that failure to timely file constitutes a

waiver of the right to request an extension.

Computation of Time

1 4 . Delray argues that its extension request was timely

filed, on the basis of its construction of the meaning of

ÐbeforeÑ in r ule 59C - 1.018(3). Delray asserts that the

termination date, December 1, 2017, must be included in the

calculation of the Ðfifteen days beforeÑ stated in r ule 59C -

1.018(3)(a). Under this constru ction, the computation of

Ðfifteen days beforeÑ would set the deadline at November 17,

2017.

1 5 . In response to DelrayÓs argument, AHCA relies on the

case of Jacksonville Land Holding Co. v. Am erican Oil Co. ,

136 Fla. 491 (1938). The Florida Supreme Co urt in Jacksonville

stated that, as a general rule where Ð such matter of practice or

procedure is required a given period before a specified date or

day, the day specified should be excluded and the first day of

the period be included, unless the manifest intention was to

include the last day, or to exclude both days.Ñ Id. at 498.

Citing Jacksonville , the court in the case of R.T.G. Furniture

Corp oration d/b/a Rooms to Go v. Franklin Coates & Lorie A.

Coates , 93 So. 3d 1151 (Fla. 4 th DCA 2012) further exp lained:

Logically, in a case where the relevant

period of time is defined as a certain number

of days before or prior to a specified event,

the period of time must be counted backwards

from the day of the event (excluding the

event itself). This method o f counting the

days is consistent with a natural reading of

the phrase Ðno later than (X number of days)

beforeÑ a specified date.

Id. at 1154.

1 6 . Consistent with the computational method set forth in

R.T.G. and Jacksonville , the calculation of Ðfiftee n days beforeÑ

the December 1, 2017 , termination date would establish the

deadline at November 16, 2017.

1 7 . ÐIf an agency's interpretation is one of several

permissible interpretations, it must be upheld despite the

existence of reasonable alternatives. Ñ Pershing Indust., Inc. v.

Dep't of Banking & Fin . , 591 So. 2d 991, 993 (Fla. 1st DCA 1991).

ÐThe courts will not depart from such a construction unless it is

clearly unauthorized or erroneous.Ñ PW Ventures, Inc. v.

Nichols , 533 So. 2d 281, 283 (Fla. 1 988). This is true even when

the agency's interpretation is Ðsomehow problematic.Ñ Morris v.

Div. of Retirement , 696 So. 2d 380, 383 (Fla. 1st DCA 1997). In

fact, Ðthe agency's interpretation of a statute need not be the

sole possible interpretation or even the most desirable one; it

need only be within the range of possible interpretations."

Dep't of Prof'l Reg . , Bd. of Med . Exam Ó r v. Durrani , 455 So. 2d

515, 517 (Fla. 1st DCA 1984)(superseded on other grounds by

statute)(italics in original).

Limits o n Agency Authority.

1 8 . Administrative agencies have only such powers as the

Legislature confers, either expressly or by necessary

implication, and cannot expand upon their own jurisdiction.

Fla . Virtual Sch. v. K12, Inc. , 148 So. 3d 97, 99 (Fla. 2014) ;

WHS Trucking LLC v. ReempÓt Assistance Appeals Com m 'n , 183 So.

3d 460, 462 (Fla. 1st DCA 2016); Dep't of Rev. v. Vanamburg ,

174 So. 3d 640, 642 (Fla. 1st DCA 2015).

1 9 . An agency may not enlarge, modify, or contravene the

provisions of statute throu gh its actions or its rules; such

action or rule Ðconstitutes an invalid exercise of delegated

legislative authority.Ñ § 120.52(8)(b) - (c), Fla. Stat.;

McKenzie Check Advance of Fla . v. Betts , 928 So. 2d 1204 (Fla.

2006); Campus CommÓns, Inc. v. DepÓt of Rev. , 473 So. 2d 1290,

1291 (Fla. 1985).

20 . The First District Court of Appeal has ruled that AHCA

may not extend a CON without color of statutory authority. Baker

Cnty. Med. Svcs., Inc. v. Ag. for Health Care Admin. , 178 So. 3d

71, 77 (Fla. 1st DCA 2 015).

21 . PetitionerÓs CONs and E xemption terminated on

December 1, 2017, by operation of law. While section 408.040

authorizes AHCA to extend the validity period of CONs that are

nearing termination, it does not authorize AHCA to resurrect and

extend th e validity period of a CON that has already terminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order finding that DelrayÓs request

for extension was not timely filed and that CON Nos. 10176

and 10231, and Exemption No. E140013 are now terminated by

operation of law.

DONE AND ENTERED this 21st day of June , 2018 , in

Tallahassee, Leon County, Florida.

S

W . DAVID WATKINS

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 21st day of June , 2018 .

ENDNOTE

1/ Unless otherwise noted, all statutory references are to the

2017 version of the Florida Statutes.

COPIES FURNISHED:

Peter A. Lewis, Esquire

Law Offices of Peter A. Lewis, P.L.

Suite 101

3023 North Shannon Lakes Drive

Tallahassee, Florida 32309

(eServed)

Richard Joseph Saliba, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Lindsey L. Miller - Hailey, Esquire

Agency for Health Care Administration

Mail Stop 7

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Ju stin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will is sue the Final Order in this case.