19-002371 Agency For Health Care Administration vs. Arch Creek Senior Care Services Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, July 9, 2019.

STATE OF FLORIDA rt; 0 42- 28

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

DOAH CASE NO. 19- 2371

Petitioner, AHCA NO. 2018010491

v.

ARCH CREEK SENIOR CARE SERVICES,

INC.,

Respondent.

FINAL ORDER OF DISMISSAL WITH PREJUDICE

THIS CAUSE concerns an Administrative Complaint that the Agency for Health Care

Administration (" Agency") issued on November 16, 2018 ( Exhibit A).

Findings of Fact

On November 26, 2018, Respondent received a copy of the Administrative Complaint by

certified mail ( Exhibit B).

On January 11, 2019, Petitioner filed a request for a formal administrative hearing

Exhibit C) with the Agency Clerk' s Office, challenging the Agency' s Administrative

Complaint. The request for a formal hearing was untimely filed because Respondent failed to

file it within 21 days of the date Respondent received the Administrative Complaint by certified

mail and was not in substantial compliance with the requirements of rule 28- 106. 2015( 5), Florida

Administrative Code.

On January 14, 2019, the Agency Clerk entered an Order of Dismissal without Prejudice

Exhibit D), which gave Respondent the opportunity to explain the untimeliness of its request for

a formal administrative hearing, and to amend its request for a formal administrative hearing so

that it would be in substantial compliance with the requirements of rule 28-106.20 15( 5), Florida

Administrative Code.

Thereafter, Respondent filed a response to the Order of Dismissal without Prejudice, and

the Agency Clerk ultimately referred the matter to the Division of Administrative Hearings

(DOAH) for an evidentiary hearing.

On July 9, 2019, the administrative law judge (ALJ) assigned to the matter issued an

Order Closing File and Relinquishing Jurisdiction (Exhibit E). In the Order Closing File and

Relinquishing Jurisdiction, the ALJ specifically concluded that Respondent's reason for the

untimeliness of its request for a formal administrative hearing did not constitute equitable tolling.

On July 18, 2019, Respondent filed a pleading entitled Respondent Arch Creek's

"Exceptions" to July 9, 2019 DOAH Final Order and/or Motion for Due Process Board

Rehearing and Reconsideration (hereinafter "Motion"), which is attached to this Final Order as

Exhibit F. In the Motion, Respondent essentially re-argues its case and requested a hearing on

the merits.

On July 22, 2019, Petitioner filed a memorandum in opposition to Respondent's Motion

(Exhibit G), in which it argues Respondent is not entitled to any further proceedings in this

matter.

Conclusions of Law

Rule 28-106.111(2), Florida Administrative Code, states that "[u]nless otherwise

provided by law, persons seeking a hearing on an agency decision which does or may determine

their substantial interests shall file a petition for hearing with the agency within 21 days of

receipt of written notice of the decision." Rule 28-106.1 04(1 ), Florida Administrative Code,

defines "file" as "received by the office of the agency clerk during normal business hours or by

the presiding officer during the course of a hearing." There is no dispute that Respondent filed

the Notice with the Agency Clerk on January 11, 2019, 46 days after the date Respondent

received the Administrative Complaint by certified mail. Thus, the law requires the Agency to

dismiss the request for hearing, and Respondent is deemed to have waived its right to a hearing,

unless Respondent can show that the doctrine of equitable tolling applies. See § 120.569(2)(c),

Fla. Stat. (2018); Fla. Admin. CodeR. 28-106.111(4) (2007); Cann v. Department of Children

and Family Services, 813 So. 2d 237 (Fla. 2d DCA 2002); Riverwood Nursing Ctr., LLC v.

Agency For Health Care Admin., 58 So. 3d 907 (Fla. 1st DCA 2011).

As the ALJ correctly concluded on Page 2 of the Order Closing File and Relinquishing

Jurisdiction, Respondent's defense to its untimely filing of the request for a formal

administrative hearing does not constitute equitable tolling. Instead, it constitutes excusable

neglect, which is not a valid ground for extending the 21-day timeframe for requesting an

administrative hearing. See Machules v. Dep't of Admin., 523 So. 2d 1132, 1134 (Fla. 1988).

Section 120.569(2)(c), Florida Statutes, requires the Agency to provide a party with an

opportunity to correct or amend a deficient hearing request unless it conclusively appears from

the face of the hearing request that the defect cannot be cured. See also Brookwood Extended

Care Center of Homestead, LLP v. Agency for Health Care Administration, 870 So. 2d 834 (Fla.

3d DCA 2003). Since Respondent's request for a formal administrative hearing was untimely

filed and Respondent has failed to demonstrate that it was either misled or lulled into inaction,

had timely / filed its Petition in the wrong forum, or had been prevented from timely filing its

Petition by extraordinary circumstances so as to excuse the untimeliness of the request for a

formal administrative hearing under the doctrine of equitable tolling, the Agency must dismiss

Respondent's request for a formal administrative hearing with prejudice since the defect of

untimeliness cannot be cured by Respondent. Furthermore, Respondent is not entitled to any

further hearings on the merits of this matter because it has waived its right to a hearing in this

matter by failing to timely file a request for an administrative hearing with the Agency Clerk.

Based upon the foregoing,

IT IS THEREFORE ORDERED AND ADJUDGED THAT:

Respondent's request for a formal administrative hearing is hereby dismissed with

prejudice, and the pertinent agency action, namely the imposition of a $1,500 fine on Respondent

for three unclassified deficiencies, became final twenty-one (21) days after the date on which

notice was received. Respondent shall govern itself accordingly.

Unless payment has already been made, payment in the amount of $1,500 is now due

from Respondent as a result ofthe agency action. Such payment shall be made in full within 30

days of the filing of this Final Order of Dismissal with Prejudice unless other payment

arrangements have been made. The payment shall be made by check payable to Agency for

Health Care Administration, and shall be mailed to the Agency for Health Care Administration,

Attn. Central Intake Unit, 2727 Mahan Drive, Mail Stop 61, Tallahassee, Florida 32308.

DONE AND ORDERED in Tallahassee, Florida, on this __2:!.._ day of

_____ , 2019.

A Y . A YHEW, Secretary

NCY FOR HEALTH CARE ADMINISTRATION

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL

NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG

WITH THE FILING FEE PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF

APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS

HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL

BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE

NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE

ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the

below-named persons by the method designated on this - of

__ __L_f/_:__J-_l;-=._( _b:____ __ , 2019.

RICHARD J.. P, Agency Clerk

AGENCY FOR HEALTH CARE ADMINISTRATION

2727 Mahan Drive, MS #3

Tallahassee, Florida 32308

Telephone: [phone]

Copies furnished to:

Gisela Iglesias, Esquire

Assistant General Counsel

(via electronic mail to [e-mail])

Gregory M. Ochalek, Esquire

19553 Northwest 2nd Avenue, #217

Miami Gardens, Florida 33169

(via electronic mail to [e-mail])

Jan Mills

Facilities Intake Unit

(via electronic mail to [e-mail])