22-000050RU Vna Hospice Of Indian River County, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, March 25, 2022.

Summary: Petitioner failed to prove that the Agency has adopted statements or made decisions based upon such statements that constitute an unadopted and invalid rule outside the Agency?s rulemaking authority and in violation of statutory requirements.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

V NA H OSPICE OF I NDIAN R IVER C OUNTY ,

I NC . ,

Petitioner ,

vs. Case No. 22 - 0050RU

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent,

and

B REVARD H MA H OSPICE , LLC; V ITAS

H EALTHCARE C ORPORATION OF F LORIDA ;

A ND C ONTINUUM H OSPICE , LLC ,

Intervenors .

/

F INAL O RDER

Pursuant to notice, the final hearing in this matter was conducted on

February 7, 2022, via Zoom conference before Robert S. Cohen, an

Administrative Law Judge ( Ñ ALJ Ò ) with the Division of Administrative

Hearings ( Ñ DOAH Ò ).

A PPEARANCES

For Petitioner: Seann M. Frazier, Esquire

Kristen Bond Dobson, Esquire

Parker, Hudson, Rainer & Dobbs, LLP

2 15 South Monroe Street, Suite 750

Tallahassee, Florida 32301

For Respondent: Julia E . Smith, Esquire

D. Carlton Enfinger, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 323 08

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

For Intervenors, Brevard HMA Hospice, LLC, and Continuum Care of

Sarasota, LLC:

G eoffrey D. Smith, Esquire

Susan C . Smith, Esquire

Sabrina B. Dieguez, Esquire

Smith & Associates

709 South Harbor City Boulevard, Suite 540

Melbourne, Florida 32901

For Intervenor, VITAS Healthcare Corporation of Florida:

Gabriel F.V. Warren, Esquire

Stephen A. Ecenia, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32302

S TATEMENT O F T HE I SSUE

Whether the Agency for Health Care A dministration (ÑAgencyÒ or

Ñ AHCAÒ) has established an un adopted and invalid rule in violation of

section 120.54(1)(a), Florida Statutes, regarding Certificate of Need ( Ñ CON Ò )

applications filed in single hospice provider service areas where there is lack

o f published numeric need for a new hospice program .

P RELIMINARY S TATEMENT

On January 5, 2022, VNA Hospice of Indian River County, Inc . ( Ñ VNA Ò ) ,

filed a Petition Challenging Unadopted and Invalid Rules (ÑPetitionÒ) ,

alleging that certain statements of the Agency constituted unpromulgated

and invalid rules in violation of sections 120.56(1) and 120.56(4). An Order of

Assignment was issued on January 7, 2022, assigning the undersigned to this

case. On January 10, 2022, a Notice of Hearing was issued for the hearing to

be held on February 2, 2022.

On January 13, 2022, Brevard HMA Hospice, LLC ( Ñ Brevard HMA Ò ) , filed

an Unopposed Motion to Intervene , which was granted on January 14, 2022.

Brevard HMA also filed a n otice on behalf of the parties agreeing to

comm ence the final hearing on February 7, 2022.

On January 14, 2022, the undersigned issued an O rder R escheduling

H earing by Zoom Conference to commence on February 7, 2022 . On that

same date, Brevard H MA filed a Motion to Dismiss VNA Ô s Petition. VNA filed

a r esponse in o pposition on January 21, 2022. The undersigned did not rule

on the m otion prior to the commencement of the final hearing.

On January 20, 2022, VITAS Healthcare Corporation of Florida ( Ñ VITAS Ò )

filed an Unopposed Motion to Intervene , which was granted on the same day.

On January 27, 2022, Continuum Care of Sarasota, LLC ( Ñ Continuum Ò ),

filed a Motion to Intervene for Limited Purpose of Preserving Objection to

Jurisdiction, which was granted on the same day.

On January 2 8 , 2022, the Agency file d a Motion for Summary Final Order

and Incorporated Memorandum of Law. VNA filed its response in opposition

to the Agency Ô s Motion for Summary Final Order on February 4, 2022. The

undersigned did not rule on the m otion prior to the commencement of the

fina l hearing.

On February 4, 2022, the parties filed their Joint Pre - h earing Stipulation,

which included stipulated facts. To the extent relevant, those stipulated facts

have been incorporated in this Final Order.

On February 3, 2022, VNA filed a Motion for Official Recognition of

certain documents. On February 4, 2022, VNA filed a Motion in Limine.

Brevard HMA filed responses in opposition to both motions on February 7,

2022 .

There were four pending motions that were addressed at final hearing:

(1) Brevard HMA Ô s Motion to Dismiss; (2) AHCA Ô s Motion for Summary Final

Order; (3) VNA Ô s Motion in Limine; and (4) VNA Ô s Motion for Official

Recognition. VNA Ô s Motion in Limine sought to exclude nonlawyers from

offering legal opinions. The undersigned did not rule o n the first two motions

and permitted the parties to address the issues during their opening

statements. The undersigned denied VNA Ô s M otion in L imine. Based upon

the ruling in this matter, the motions to dismiss and for summary final order

will have been addressed and are, therefore, moot since this O rder will

dispose of the issues of the case. The undersigned previously made it clear

that nonlawyers would not be permitted to provide legal conclusions but

would be permitted to give their understanding, as expert witnesses, as to

what the various applicable statutes and rules mean to them in providing

professional advice to their clients. As to VNA Ô s Motion for Official

Recognition, the undersigned will take official recognition of the items

referenced in th e February 3, 2022, motion and has considered them, to the

extent relevant to the undersigned Ô s conclusions of law and ruling.

The final hearing convened on February 7, 2022. VNA presented the

testimony of James McLemore, u nit s upervisor, C ON , of the Agen cy , who was

accepted as an expert in CON review and health planning , and David Levitt,

m anaging p artner of Levitt Healthcare Affiliates, accepted as an expert in

health planning. The Agency also presented the testimony of James

McLemore. The Agency called no other witnesses. Brevard HMA presented

the testimony of Pat ricia Greenberg, accepted as an expert in health planning

and hospice planning. Continuum did not call any witnesses or introduce any

exhibits. VITAS also did not call any witnesses or introduce any exhibits.

VNA Exhibit s 1 through 12, 14, 17 , 18, and 27 were admitted

into evidence without objection. The Agency Ô s Exhibit s 1 through 15 were

admitted into evidence without objection. Brevard HMA Exhibits 1

through 7 D and 15 through 19 were received in evidence. Brevard HMA Ô s

Exhibits 7E through 7H were not admitted into evidence, but were prof f ered

by counsel.

Any references to the Florida Statutes are to the 2021 codification, unless

otherwise stated.

F INDINGS O F F ACT

The Parties

1. The Agency is Florida Ô s health planning agency, charged with

determining whether CON applications should be approved or denied.

2. VNA is a licensed hospice program serving Hospice Service Area 9A,

Indian River County.

3. Continuum is a licensed hospice program serving Hospice Service

Area 8D, Sarasota County.

4. Brevard HMA filed CON Application Number 10695 to establish a new

hospice program in Hospice Service Area 9A, Indian River County, which was

preliminarily approved by the Agency.

5. VITAS filed CON Application Number 10655 to establish a new hospice

program in Hospice Service Area 8C, Glades, Hendry, and Lee Counties,

which was preliminarily approved by the Agency .

The CON P rogram for H ospice

6 . Under Florida law, a CON must be obtained before a new hospice

pro gram may be established and licensed.

7 . A CON is Ñ a written statement issued by the agency evidencing

community need for a new, converted, expanded, or otherwise significantly

modified health care facility or hospice. Ò § 408.032(3), Fla. Stat.

8. In order to determine whether there is a community need for a new

hospice program, the Agency is tasked with establishing, by rule, uniform

need methodologies for health services which require a CON, including

hospice services. § 408.034(3), Fla. Stat. Ñ In develop ing uniform need

methodologies, the agency shall, at a minimum, consider the demographic

characteristics of the population, the health status of the population, service

use patterns, standards and trends, geographic accessibility, and market

economics. Ò Id . Additionally, for hospice programs, Ñ [t]he formula on which

the certificate of need is based shall discourage regional monopolies and

promote competition. Ò § 408.043(1), Fla. Stat. There is no definition of

Ñ regional monopoly Ò in Florida Statutes.

9. The Florida L egislature has further directed the Agency to Ñ provide for

[CON] applications to be submitted on a timetable or cycle basis Ò and

Ñ provide for all completed applications pertaining to similar types of services

or facilities affecting the same serv ice district to be considered in relation to

each other no less often than annually. Ò § 408.039(1), Fla. Stat . These cycles

are commonly referred to as Ñ batching cycles. Ò The Agency has adopted two

batching cycles per year for hospice programs. Fla. Admin. Code

R. 59C - 1.008(1)(g).

10. In reviewing CON applications, including hospice CON

applications, the Agency shall consider certain enumerated criteria set

forth in section 408.035 , Florida Statutes . Additionally, pursuant to

section 408.043(1), Ñ [w]hen an application is made for a certificate of need to

establish or to expand a hospice, the need for such hospice shall be

determined on the basis of the need for and availability of hospice services in

the community. Ò

11. Finally, for purposes of health plann ing and the CON program, the

Florida Legislature has divided the s tate into 11 health service planning

districts. § 408.032(5), Fla. Stat. District 9, for example, is comprised of

Indian River, Okeechobee, St. Lucie, Martin, and Palm Beach Counties.

§ 408 .032(5), Fla. Stat.

12. Florida Administrative Code Rule 59C - 1.0355 is known as the

Ñ Hospice Rule , Ò by which the Agency has further divided the 11 health

service planning districts established by the Florida L egislature into

27 hospice service areas. Fla. Admin. Code R. 59C - 1.0355(2)(k) . By example,

under the Hospice Rule, District 9 comprises Service Areas 9A, 9B, and 9C.

Fla. Admin. Code R. 59C - 1.0355(2)(k)23 . - 25. Service Area 9A consists of

Indian River County ; Service Area 9B consists of Martin, Okeecho bee, and

St. Lucie Counties ; and Service Area 9C consists of Palm Beach County. Id .

Some service areas consist of just one county under the Hospice Rule.

13 . Paragraph (3) of the Hospice Rule, titled Ñ General Provisions, Ò governs

Ñ Quality of Care Ò and Ñ Con formance with Statutory Review Criteria. Ò Fla.

Admin. Code R. 59C - 1 . 0355(3)(a) - (b). T he second sentence of sub paragraph

(3)(b) provides as follows:

Applications to establish a new Hospice program

shall not be approved in the absence of a numeric

need indic ated by the formula in paragraph (4)(a) of

this rule, unless other criteria in this rule and in

Sections 408.035 and 408.043(1), F.S., outweigh the

lack of a numeric need.

14. The Agency Ô s formula for calculating need for hospice services is set

forth in sub paragraph (4)(a) of the Hospice Rule, Ñ Numeric Need for a New

Hospice Program. Ò The formula set forth in sub paragraph (4)(a) is the

formula referenced in the second sentence of section 408.043(1). The Agency

uses the formula codified in sub paragraph (4) (a) to calculate numeric need for

hospice programs for each of the 27 service areas. S ee The Hospice of the Fla.

Suncoast, Inc. v. Ag . for Health Care Admin. , Case No. 21 - 0889CON , RO at 8

(Fla. DOAH June 16, 2021; Fla. AHCA July 22, 2021).

15. Under the fo rmula, Ñ [n]umeric need for an additional Hospice program

is demonstrated if the projected number of unserved patients [in a service

area] who would elect a Hospice program is 350 or greater. Ò Fla. Admin. Code

R. 59C - 1.0355(4)(a). Thus, if the formula calcu lates a projected number of

unserved patients in a particular service area of 350 or more, there is

numeric need for a new hospice program. However, if the formula calculates a

projected number of unserved patients of less than 350, there is no numeric

nee d for a new hospice program.

16. Under the Hospice Rule, even if the formula calculates numeric need,

Ñ the Agency shall not normally approve a new Hospice program for a service

area unless each Hospice program serving that area has been licensed and

operat ional for at least 2 years as of 3 weeks prior to publication of the Fixed

Need Pool. Ò Fla. Admin. Code R. 59C - 1.0355(4)(b) . Likewise, even if the

formula calculates numeric need, Ñ the Agency shall not normally approve

another Hospice program for any servi ce area that has an approved Hospice

program that is not yet licensed. Ò Fla. Admin. Code R. 59C - 1.0355(4)(c).

These are the only Ñ not normal Ò circumstances codified in the Hospice Rule.

17. S ub paragraph (4)(d) of the Hospice Rule sets forth the limited

cir cumstances under which a hospice CON may be awarded even if the

formula calculates no numeric need and one of the not normal circumstances

referenced above are not present:

( d) Approval Under Special Circumstances. In the

absence of numeric need identified in

paragraph (4)(a), the applicant must demonstrate

that circumstances exist to justify the approval of a

new Hospice. Evidence submitted by the applicant

must document one or more of the following:

1. That a specific terminally ill population is not

be ing served.

2. That a county or counties within the service area

of a licensed Hospice program are not being served .

Historically, these two special circumstances have been interpreted to include

underservice Ð as opposed to a complete lack of service Ð to a specific

terminally ill population or county.

18 . Therefore, as agreed to by each of the experts testifying in this

proceeding ( Mr. McLemore, Mr. Levitt, and Ms. Greenberg) , in the absence of

a calculated numeric need, the rule requires that an a pplicati on shall not be

approved unless the following three sets of criteria outweigh the lack of

numeric need: ( i) the Ñ other criteria in this Rule Ò ; ( ii) the criteria in

section 408.035; and ( iii) the criteria in section 408.043(1).

19. The Ñ other criteria Ò in r ule 59C - 1.0355(3)(b) establish a variety of

considerations including: the Ñ Special Circumstances Ò provisions to

demonstrate a population group or county that is underserved; an a pplicant Ô s

commitment to serve populations with unmet needs; a commitment to s erve

patients without primary caregivers at home, the homeless, and patients

with AID S ; establishing a physical presence in an underserved county;

obtaining letters of support from health organizations, social service

organizations and other entities in th e service area; and the a pplicant Ô s

overall description of the programs and services that will be offered.

20. As recently as last year, the Agency made clear that an

applicant seeking a hospice CON in the absence of published numeric

need must demonstrate one of the two special circumstances set forth in

sub paragraph (4)(a) in order to be approved. See Tidewell Hospice, Inc. v.

Ag. for Health Care Admin. & Continuum Care of Sarasota, LLC , Case

No. 20 - 1712CON (Fla. DOAH Jan. 13, 2021 ) , modified and reversed on other

grounds , Case No. 2020004566 ( Fla. AHCA Mar. 9, 2021) ( Ñ Continuum is

required by rule 59C - 1.0355(4)(d) to demonstrate: 1. that a specific terminally

ill population is not being served; or 2. that a county or counties in a service

area are not bei ng served. Ò ); see also Odyssey Healthcare of Collier C n ty., Inc.

v. Ag. for Health Care Admin. , Case No. 10 - 1605CON (Fla. DOAH Nov. 30,

2010; Fla. AHCA Feb. 2, 2011 ) (explaining that a CON applicant for a new

hospice program seeking approval in the absence of numeric need must

document the existence of one of those two special circumstances in

r ule 59C - 1.0355(4)(d)).

2 1 . There are ten statutory criteria in section 408.035, and eight of them

are relevant to consideration of h ospice CON a pplications including :

(1) The need for the health care facilities being

proposed.

(2) The availability, quality of care, accessibility,

and extent of utilization of existing health care

facilities in the service district of the applicant.

(3) The ability of the applicant to provide quality of

care and the applicant Ô s record of providing quality

of care.

(4) The availability of resources, including health

personnel, management personnel, and funds for

capital and operating expenditures, for project

accomplishment and oper ation.

(5) The extent to which the proposed services will

enhance access to health care for residents of the

service district.

(6) The immediate and long - term financial

feasibility of the proposal.

(7) The extent to which the proposal will foster

compet ition that promotes quality and cost -

effectiveness.

(8) The costs and methods of the proposed

construction, including the costs and methods of

energy provision and the availability of alternative,

less costly, or more effective methods of

construction [t ypically, not at issue with hospice

service proposals ].

(9) The applicant Ô s past and proposed provision of

health care services to Medicaid patients and the

medically indigent.

(10) The applicant Ô s designation as a Gold Seal

Program nursing facility pu rsuant to s. 400.235

[a lso, not at issue in a hospice CON proposal ][ . ]

2 2 . The h ospice s pecial p rovisions criteria in s ection 408.043(1) states , in

pertinent part, as follows:

(1) HOSPICES. - - When an application is made for a

certificate of need to establi sh or to expand a

hospice, the need for such hospice shall be

determined on the basis of the need for and

availability of hospice services in the community.

The formula on which the certificate of need is

based shall discourage regional monopolies and

prom ote competition.

2 3 . The use of the term Ñ regional mono polies Ò in the above - quoted

statutory provision is at the heart of this challenge brought by Petitioner.

Through his testimony, Mr. McLemore made it clear that he personally

disfavors monopolies in an y type of health care being provided. He noted that

the hospice statute reads that the Ñ [ hospice ] formula on which the certificate

of need [ sic ] shall discourage regional monopolies and promote competition. Ò

He testified that, Ñ in his personal view, certai nly, it Ô s failed miserably. Ò

24. Mr. McLemore confirmed that the Agency does n o t have a definition of

a Ñ regional monopoly Ò or of a Ñ single service area monopoly. Ò He further went

on to say that, Ñ if you look it up in the dictionary È a monopoly is È you o nly

got one provider for something. Ò While he concedes that Ñ you can Ô t just come

in and say, well, gee, there is a monopoly here, I need to be approved. The

applicant has to demonstrate that there is [ sic ] other criteria met. Ò

25. Even if he were to recomm end approval, in whole or in part, because of

his conclusion there was a monopoly in the service area, Mr. McLemore

concedes that his word is not final; his recommendation must be approved by

an assistant secretary or the secretary of the Agency before suc h

recommendation is issued. Moreover, since the First District Court of Appeal

issued its decision in Compassionate Care Hospice of the Gulf Coast, Inc. v.

Agency for Health Care Administration , 247 So . 3d 99 (2018), he testified that

the existence of a mo nopoly is not, in and of itself, sufficient to approve a

hospice CON special circumstances application.

Unadopted Rule Allegations

26 . In its Petition, VNA alleges that , rather than applying the statutory

and rule criteria discussed above, the Agency follo ws an unadopted rule that

is not contained within any statute or properly promulgated rule . The result

of the Agency Ô s alleged reliance on an unadopted rule is that there may be

specific incidents of the Agency automatic ally approv ing a hospice CON

a pplica tion in a s ervice a rea that has only one existing hospice provider,

without regard to any statutory criteria or the rule provisions set forth in

r ule 59C - 1.0355.

27. Brevard HMA points to seven alternate versions of unadopted rule

statements in VNA Ô s P etit ion:

A. First Statement : In a single provider hospice

service area where the Agency predicts no numeric

need, any CON application will be approved if it

alleges a lack of competition .

B. Second Statement : In a single provider hospice

service area where th e Agency predicts no numeric

need, any CON application will be approved if it

alleges a lack of competition, regardless of whether

competition would promote quality or cost -

effectiveness.

C. Third Statement : In a single provider hospice

service area wher e the Agency predicts no numeric

need, any CON application will be approved if it

alleges a lack of competition and any service

deficiency, no matter how small.

D. Fourth Statement : When reviewing applications

filed in single provider service areas where no

numeric need has been predicted, the Agency must

consider the discouragement of regional monopolies

and promotion of competition Ò as a review criterion,

which may outweigh all other criteria.

E. Fifth Statement : A hospice application for a

single pro vider service area need not demonstrate a

special circumstance sufficient to overcome a

presumption of no need in order to have the

remainder of the statutory review criteria applied

by the Agency.

F. Sixth Statement : Competition alone may serve

as a suf ficient basis to approve an application for a

single provider service area .

G. Seventh Statement : The presence of a single

existing provider in any one hospice service area,

constitutes a regional monopoly.

28. VNA Ô s expert, Mr. Levitt, concedes that no ne of the seven statements

alleged in the P etition are contained in any written communications .

29. The seven State Agency Action Reports ( Ñ SAARs Ò ) received in evidence

from VNA do not contain any statements to indicate the Agency used any of

the alleged u nadopted rule statements as a basis for the Agency Ô s preliminary

decisions in hospice s ervice a reas with only a single hospice provider. Each of

the SAARs includes a summary of the information contained in the CON

a pplication, and a finding that the prelim inary approval was based upon a

demonstration by the a pplicant of underserved populations and an overall

weighing and balancing of the CON statutory and rule review criteria.

30. Based upon testimony from Mr. Levitt and Ms. Greenberg, t he alleged

seven sta tements also cannot be found in any f inal o rder, r ecommended

o rder, memorandum, email, or other written communication s of the Agency .

31. VNA asserts that the unadopted r ule might not be any of the seven

specific statements alleged, but something similar t o those statements, or ,

perhaps, that the statements might be qualified or have other caveats based

on consideration of some of the statutory criteria. Thus the Ñ text Ò of the

alleged unadopted r ule is somewhat nebulous, without clear parameters, but

genera lly might be described that AHCA places too much weight on issues of

Ñ competition Ò and favors approval of CON a pplications seeking to introduce a

new competing hospice provider in markets where currently only one

provider exists.

32. Mr. Levitt agreed that the Agency is free to look at competition and

whether competition will enhance the quality of care under the CON review

criteria. In short, he conceded, the Agency can consider the number of

hospices and whether there are improvements that might be had fr om adding

a new hospice provider in a s ervice a rea.

33. Moreover, n o evidence was presented that the alleged unadopted rule

statements are contained in any verbal communications from any AHCA

representative or employee with authority to issue policy pronou ncements for

the Agency . Mr. McLemore testified that , as supervisor of the CON u nit , he

has never been informed by anyone at AHCA to follow any unadopted

policies , including approval of an application based on a regional monopoly

without any consideration of whether there is an underserved population . He

testified he has never based his recommendations for any preliminary CON

decision on any of VNA Ô s alleged seven statements of unadopted rules .

34. Similarly, Ms. Greenberg testified that she has met with A g ency

representatives in advance of filing CON a pplications, including applications

in s ervice a reas with a single existing hospice provider, and she has never

been informed of any unadopted policy or rules involving approval of CON

a pplications in s ervice a reas with a sole existing provider.

Prior Hospice CON Decisions

35. Petitioner placed great emphasis on the Agency Ô s alleged change in

position regarding hospice CON decisions prior to 2019 and post - 2019.

SAARs were admitted into evidence to examine wheth er the Agency changed

its way of evaluating hospice applications when Mr. McLemore came back

to head the CON u nit in August 2019. During the ten - year period (2009

to 2019) prior to Mr. McLemore Ô s return, Petitioner analyzed the Agency

decisions in situatio ns where there was no published numeric need and the

s ervice a rea was served by only one provider. The s ervice a reas at issue in

those cases were 5B (Pinellas County), 3D (Hernando County ) , 6C ( Manatee

County ) , and 8D ( Sarasota County ) .

36 . The conclusion drawn was that p rior to 2019, the Agency generally

denied hospice CON applications filed in service areas in the absence of

published numeric need . Between October 2009 and October 2019, the

Agency preliminarily approved just two hospice CON applications f iled in

service areas served by a single hospice provider in the absence of published

need. After formal administrative hearings, both applications were denied by

final agency action.

37. As noted above, t he initial approval or denial of a CON application is

set forth in a SAAR. § 408.039(4)(b), Fla. Stat. The SAARs prepared by the

CON u nit typically do not contain detailed reports of the Agency Ô s findings or

opinions regarding filed applications. Instead, the SAARs largely regurgitate

the applicant or appl icant Ô s arguments for approval. However, in recent

years, the Agency has begun inserting italicized language at the end of a

SAAR to identify the arguments raised by an applicant with which the

Agency agreed and why, in a comparative review, the Agency sel ected one

applicant over others.

38. In the October 2019 Hospice Batching Cycle, Continuum filed a CON

application to establish a new hospice program in Service Area 8D, Sarasota

County, in the absence of published numeric need. At the time, Sarasota

Count y was served by a single hospice provider. Strikingly similar to

Compassionate Care Ô s argument just several years prior, Continuum argued

in favor of the approval of its application based, in part, on the existing

provider Ô s alleged Ñ regional monopoly. Ò In fact, the specia l circumstances

alleged by Continuum were nearly identical to those alleged by

Compassionate Care just a few years before. However, this time, the Agency

preliminarily approved the application. As indicated i n the SAAR, the Agency

prelimin arily approved the application, in part, due to the Ñ support for a

second hospice provider from many Sarasota County healthcare providers. Ò

39. Ñ In part Ò are the operative words here. Following a hearing involving

disputed issues of material fact before DO AH, an ALJ issued a R ecommended

O rder recommending the Agency deny the CON application because the

applicant failed to prove the existence of one of the special circumstances

set forth in sub paragraph (4)(d) of the Hospice Rule. Tidewell , Case

No. 20 - 1712C ON, RO at 53. In its Final Order, the Agency rejected the

ALJ Ô s recommendation and granted the CON to Continuum based, in

part, Ñ because Tidewell has a monopoly in Service Area 8D. Ò Id . , Case

No. 2020004566, FO at 8 . The appeal of that Final Order is curre ntly pending

before the Second District Court of Appeal.

40. Much was made at hearing in this matter, as well as in VNA Ô s

P roposed Final O rder, about Mr. McLemore Ô s testimony at deposition in the

Tidewell case. Mr. McLemore candidly testified that he pers onally believed

that there is Ñ nowhere in America where people should have not have [ sic ]

the opportunity to select a healthcare provider of their choice. Ò This

statement, no matter how noble, was his opinion, not the articulated position

of the Agency in determining whether to approve or deny CON applications

for hospice services. Moreover, Mr. McLemore testified explicitly in the

Continuum CON case that the Agency has no policy in place to require a

minimum number of hospice providers, and that the Agency had no policy

that was not formally adopted in a rule. The operative words here were that

the application was granted , Ñ in part , Ò because of a regional monopoly. The

CON was also approved, in part , because of other reasons, namely, the

conclusion of the A gency (and, to a lesser extent, of the ALJ) that special

circumstances existed to approve the CON in the absence of numeric need. In

its Final Order, the Agency specifically stated that Ñ È Continuum of

Sarasota demonstrated that Tidewell is not serving the residents of Sarasota

County. As a result, È Continuum of Sarasota Ô s CON application can be

approved based on the existence of Ó not normal Ô circumstances alone. Ò

Regardless of how the Second District Court of Appeal decides the Tidewell

appeal, the Agenc y did not circumvent the CON process by approving

Continuum Ô s CON application based solely upon its finding that a regional

monopoly existed in the s ervice a rea.

41. The conclusion to be reached by analysis of Tidewell is that, while

Ñ d iscouraging regiona l monopolies Ò has been articulated in section 408.043 as

a justification for approval of hospice CONs, nowhere does that statute or the

Agency Ô s rules state or permit the Agency to approve a CON application

solely on the fact that there is only one hospice provider in a single hospice

s ervice a rea.

42. In his testimony in the Affinity Care of Manatee County, LLC

(ÑAffinityÒ), CON case , offered as an exhibit at this hearing , Mr. McLemore

again confirmed multiple factors under the CON review criteria that the

Agency considered in reaching its prior decision in the Final Order in the

Continuum CON case, including identifying underserved populations, plans

to improve access, proposing services not currently offered, and documenting

extensive support from communi ty health care providers.

43. In his testimony in the Brevard HMA CON case, Mr. McLemore

testified that the preliminary decision in the Brevard HMA CON case was

based upon demonstration of underserved populations and that the Agency

did not cite to a monop oly on service as being a reason for approval.

Mr. McLemore testified that even if a monopoly or regional monopoly is

shown, an a pplicant would still have to prove other circumstances to justify

an award of a CON in the absence of numeric need. In his depo sition from

that case, he testified, Ñ It Ô s not just a matter of there Ô s only one, we Ô re going to

approve it. Ò He further testified that among other issues under the statutory

criteria, the Agency considers competition that promotes quality including

whethe r approval of an applicant will increase service availability and the

types of services offered for patients.

44. With respect to the Brevard HMA CON, Mr. McLemore testified that

the decision was not based on the presence of the sole existing provider, bu t

upon consideration of underservice to populations , including African

American, Hispanic, and Medicaid populations, in addition to other facts and

circumstances that on balance warranted approval of the CON Application.

45. In a case that has gone to hea ring (DOAH Case No. 21 - 2328 CON ) ,

VITAS filed an application to establish a new hospice program in Service

Area 8C, comprised of Glades, Hendry, and Lee Counties , in the absence of

published numeric need. At the time, Service Area 8C was served by a single

hospice provider. Unlike the applications filed by Continuum and Affinity,

VITAS Ô s application did not allege that the sole existing provider in Service

Area 8C constituted a Ñ monopoly. Ò Nevertheless, the Agency Ô s SAAR

independently found that the existing provider Ñ currently has a monopoly in

that it is the sole provider in SA 8C. Ò Additionally, and like the Agency Ô s

preliminary approval of Affinity Ô s application, according to the SAAR, the

Agency preliminarily approved VITAS Ô s application, in part, due to the

Ñ support for a second hospice provider. Ò At hearing, VITAS testified

extensively as to its justifications for approval on the basis of special

circumstances. That matter is awaiting proposed recommended orders and no

ruling has yet been made by the AL J, who happens to be the undersigned.

46. Finally, in the August 2021 Batching Cycle, three applications were

filed to establish a new hospice program in Service Area 9A, Indian River

County, in the absence of published numeric need. Two of the applicants Ð

Brevard HMA and Moments Hospice of Indian River, LLC Ð asserted that the

existing provider Ô s status as the only hospice provider in the service area

constituted a Ñ regional monopoly Ò and, thus, a special circumstance.

47. The third applicant Ð Hospice of the T reasure Coast Incorporated

( Ñ Treasure Coast Ò ) Ð did not specifically assert that the existing provider Ô s

status as the single hospice provider constituted a regional monopoly .

However, Treasure Coast did observe that Ñ [r]ecent policy declarations by

AHCA hav e advanced the concept that areas served by a single hospice

provider benefit from the approval of a second hospice, irrespective of any

lack of published numeric need. Ò From this, VNA asserts that the Agency Ô s

unadopted rule concerning single provider ser vice areas is apparent to the

regulated community.

48. The undersigned believes that the Ñ regulated community Ò referenced

in the preceding paragraph, employing all of the considerable expertise at its

disposal, is nimble enough to search for areas in Flori da that are

underserved. By Ñ underserved, Ò the undersigned does not mean sole

providers. In the absence of numeric need, health care providers who are

interested in entering a particular market look to other means of justifying

entitlement to a CON, namely , special circumstances. When the market is

tight, creative planners and providers find services and pockets of

underserved populations that would benefit from what they have to provide.

In the case of hospice, these experts have identified areas throughou t the

state where a particular county Ô s population is underserved whether based

upon remoteness from existing providers, by virtue of their specific ethnic or

racial group under - or unserved, or due to groups like veterans and the

impoverished not having a ccess to hospice services at the end of their lives.

Finding these areas or populations that are underserved is what makes

health care providers and their expert consultants not only successful, but

leaders in the world of health care providers.

49. VNA ar gues that, if all the 2019 hospice CON applicants are

ultimately approved in the absence of numeric need, there will be just two

service areas in the state served by a single provider. If these approvals are

granted by the Agency and withstand challenge by existing providers and

unsuccessful co - batched applicants, one or both of the following two

conclusions can be reached: ( a) they proved entitlement to a CON based upon

a balancing of the applicable statutory and rule criteria; or, ( b) in the absence

of an y special circumstances (assuming no numeric need) being proven at

hearing and upheld by the Agency and a reviewing court on the sole basis of

section 408.043 Ô s discouragement of regional monopolies, then somewhere

along the line an appellate court will ha ve ruled that a single statutory

criterion (discouraging regional monopolies) is sufficient to warrant approval

of a hospice CON application .

5 0 . In shor t, despite his passion and dedication to ensuring that all

populations have access to hospice services at the end of life, too much weight

has been placed upon the shoulders of Mr. McLemore Ô s testimony in this

matter and many other hospice CON cases in which he has given deposition

and hearing testimony. He is not the ultimate decisionmaker at the Agency

w hen it comes to CONs, as he has honestly and candidly admitted on many

occasions. T he final hearing and prior testimony of Mr. McLemore do not

demonstrate the Agency Ô s reliance on any of the alleged seven unadopted rule

statements, or of any policy to auto matically approve a CON a pplication for a

new hospice that is filed in a s ervice a rea with only one existing hospice

provider.

Ultimate Facts

51 . The preponderance of evidence does not support the contention that

AHCA used an unadopted rule based upon the various recommendations

made in different CON applications for hospice services, whether looking at

the period prior to 2019, post - 2019, or a combination of the two. No two of the

hospice CONs brought to light in this hearing are identical. Each of the

ap plications ultimately stood or fell on its own merits. Some were initially

approved by the Agency; others were initially denied, yet found their way to

approval via a recommended order from DOAH, some of which were

overturned by the Agency and others which were upheld. One made its way

to the First District Court of Appeal where an opinion was issued in the

Compassionate Care case, while yet another made its way to the Second

District Court of Appeal where it awaits decision. Still others are awaiting

order s from DOAH, are currently in hearing, or are scheduled for hearing

later this year. Those still going through the process in cases where no

numeric need has been published rely on rule - enumerated special

circumstances to justify approval. Some have added to their arguments an

additional factor from section 408.043, that the Agency must not use a

formula that discourages regional monopolies. In sum, each case is different,

with expert opinions attempting to demonstrate a need for hospice services

employing every health planning tool at the experts Ô disposal. The evidence

does not support a one - size - fits - all unadopted rule that applies in each case.

Therefore, the alleged statements purported to be unadopted rules are not

supported by competent substantial ev idence.

52. Some of the CON a pplicants have used the term Ñ monopoly Ò to

indicate when a single or sole provider exists in a s ervice a rea. However, each

of the a pplications (and the SAARs) where the existence of a single provider

in a s ervice a rea is brough t into the equation also evaluate the issue of a

Ñ monopoly Ò within the context of other statutory and rule criteria , such as

underserved populations and services not made available by existing

providers that new providers will add to the delivery of hospic e care .

C ONCLUSIONS O F L AW

5 3. DOAH has jurisdiction over this rule challenge and the parties

pursuant to sections 120.569, 120.57(1), and 120.56(1).

54 . Section 120.54(1)(a) provides that Ñ [r]ulemaking is not a matter of

agency discretion. Each agency st atement defined as a rule by s. 120.52 shall

be adopted by the rulemaking procedure provided by this section as soon as

feasible and practicable. Ò See also S. Baptist Hosp. of Fla. v. Ag . for Health

Care Admin. , 270 So. 3d 488, 503 (Fla. 1st DCA 2019 ) ( Ñ It is well established

Florida law that rulemaking is not a matter of agency discretion. Ò ).

55. Section 120.56(4)(a) provides that: Ñ Any person substantially

affected by an agency statement that is an unadopted rule may seek an

administrative determination t hat 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 facts sufficient to show that the statement

constitutes an unadopted rule. Ò

56. Section 120.52(20) provides Ñ that an Ó [u]nadopted rule Ô means an

agency statement that meets the definition of the term Ó rule, Ô but that has not

been adopted pursuant to the requirements of s. 120.54. Ò

57. The parties stipulated to standing.

58. The burden of proof is on Petitioner, i n this case VNA. § 120.56(1)(a) ,

(4)(a), Fla. Stat.

59. The standard of proof is a preponderance of the evidence.

§ 120.56(1)(e) , Fla. Stat .

60. If the alleged policy is determined to be an unadopted rule, then the

Agency shall bear the burden of demonstra ting that rulemaking is not

feasible or practicable. § 120.56(4)(c) , Fla. Stat .

61. P etitions invoking section 120.56(4) must allege facts that are

sufficient to demonstrate, first, that the object of the challenge is Ñ an agency

statement Ò and, second, tha t the agency statement meets the definition of a

Ñ rule Ò that has not been adopted pursuant to section 120.54.

62. An agency statement can be in the form of a declaration, expression, or

communication. It does not need to be in writing. See Dep Ô t of High. S af. &

Motor Veh. v. Schluter , 705 So. 2d 81, 84 (Fla. 1st DCA 1997). To be a rule,

however, the statement or expression must be an Ñ agency statement, Ò that is,

a statement that reflects the agency Ô s position with regard to law or policy.

Therefore, the off hand comment of an agency employee, without more, is not

an Ñ agency statement Ò ; rather, the statement must be Ñ attributable to [the

agency head] or some duly authorized delegate. Ò Id . at 87 (Benton, J.,

concurring and dissenting).

63. Agency statements sub ject to challenge as unadopted rules are those

that reflect the agency Ô s policy statements, in that they were Ñ issued by the

agency head for implementation by subordinates with little or no room for

discretionary modification Ò and Ñ were applied and were in tended to be

applied with the force of a rule of law. Ò Dep Ô t of Admin. v. Stevens , 344 So. 2d

290, 296 (Fla. 1st DCA 1977) .

64. The requirement for agency rulemaking, codified in section 120.54(1),

prevents an administrative agency from relying on general policies that are

not tested in the rulemaking process, but it does not apply to every kind of

statement an agency may make. See McDonald v. Dep Ô t of Banking & Fin. ,

346 So. 2d 569, 581 (Fla. 1st DCA 1977) (stating that rulemaking

requirements were never i ntended to Ñ encompass virtually any utterance by

an agency Ò ), superseded by statute on other grounds, § 120.54(1)(a), Fla. Stat.

(Supp. 1996), as recognized in Schluter , 705 So. 2d at 81. Rulemaking is

required only for an agency statement that is the equi valent of a rule.

65. An agency Ô s application of the law to a particular set of facts is not

itself a rule. See Amerisure Mut. Ins. Co. v. Fla. Dep Ô t of Fin. Servs., Div. of

Workers Ô Comp. , 156 So. 3d 520, 531 (Fla. 1st DCA 2015) (concluding that the

agenc y did not rely on an unadopted rule, but Ñ simply applied the governing

statute to the information Ò reported by the relevant entity), superseded by

state constitutional amendment on other grounds, A rt. V, § 21, Fla. Const.,

as recognized in Lee Mem Ô l Health Sys. Gulf Coast Med. Ctr. v. Ag. for

Health Care Admin. , 272 So. 3d 431, 437 (Fla. 1st DCA 2019); see also

§ 120.57(1)(e)1., Fla. Stat. (expressly authorizing Ñ application of È applicable

provisions of law to the facts Ò ).

66. Accordingly, where an agency statement analyzes existing law, as it

applies to a particular set of circumstances, the statement is not itself a rule

and is not subject to the rulemaking process. Env Ô t Trust v. State, Dep Ô t of

Env Ô t Prot. , 714 So. 2d 493, 498 (Fla. 1st DCA 1998). To co nclude otherwise

would effectively require an agency to adopt a rule for every possible

circumstance that may arise. Instead, Ñ an agency is free to simply apply a

statute to facts ... without engaging in rulemaking. Ò Off . of Ins. Reg ul . v.

Guarantee Tr . Li fe Ins. Co. , Case No. 11 - 1150 , RO at 75 (Fla. DOAH Mar. 16,

2012; Fla. OIR June 28, 2012).

67. It is important in an unadopted rule challenge proceeding to

distinguish between alleged statements that apply to an individual party and

those statements of gen eral applicability that apply uniformly to all persons,

or a sufficiently identified class of persons, such that the alleged unadopted

rule is shown to have a comprehensiveness and uniformity in application.

Here, there was no evidence of any written state ments or verbal expressions

of such a uniform policy. Instead, VNA seeks to show an Ñ unadopted rule Ò

essentially on the basis of AHCA Ô s rulings in the Final Order in the

Continuum case, and in two subsequent SAARs, which examine the

particular facts and ci rcumstances presented in the individual CON

a pplications submitted by Affinity and Brevard HMA (VNA concedes it is not

relying on the SAAR in the VITAS SAAR to show an unadopted rule . ). Based

upon a detailed discussion in this matter of how the Agency revi ewed

numerous hospice CON applications filed between 2009 and 2021, it has

become clear that the Agency did not repeatedly rely upon statements of

general applicability that implements and interprets the law to determine an

issue (the approval of CONs in t he absence of published numeric need) in the

same manner in every case . See Grabba - Leaf, LLC v. Dep Ô t of Bus . & Pro .

Regul . , 257 So. 3d 1205, 1211 (Fla. 1st DCA 2018) (explaining that an agency

statement or policy constitutes a rule when it is Ñ a statement of general

applicability that implements and interprets the law Ò and constitutes an

unadopted rule when Ñ rulemaking procedures were n Ô t followed, and it is not

Ó readily apparent Ô from the statute itself Ò that the agency Ô s interpretation of a

statute is cor rect).

68. A statement which, by its terms, is limited to a particular person or

singular factual situation is not generally applicable, nor is one whose

applicability depends on the circumstances. Such ad hoc directives are orders,

not rules. By contrast , Ñ general applicability Ò requires that the scope of the

statement -- its field of operation -- be sufficiently encompassing as to constitute

a principle; there must be, in other words, a comprehensiveness to the

statement, which distinguishes the statement fr om the more narrowly

focused, individualized orders that agencies routinely issue in determining

the substantial interests of individual persons. A generally applicable

statement purports to affect not just a single person or singular situations,

but a cat egory or class of persons or activities. See McCarthy v. Dep Ô t of Ins. ,

479 So. 2d 135 (Fla. 2d DCA 1985) (letter prescribing Ñ categoric

requirements Ò for certification as a fire safety inspector was a rule). See

Harmony Env Ôt , Inc. v. Dep Ô t of Bus . & Pro . Regul . , Case No. 14 - 5334RU , FO

at 31 ( Fla. DOAH Feb . 26, 2015).

69. To be generally applicable, a statement need not apply universally to

every person or activity within the agency Ô s jurisdiction. It is sufficient,

rather, that the statement apply uniform ly to a class of persons or activities

over which the agency may properly exercise authority. See Schluter , 705 So.

2d at 83 (policies that established procedures pertaining to police officers

under investigation were said to apply uniformly to all police officers and

thus to constitute statements of general applicability); see also Disability

Support Serv., Inc. v. Dep Ô t of Child. & Fams. , Case No. 97 - 5104RU, 1997 Fla.

Div. Adm in . Hear. LEXIS 5331, at *11 (Fla. DOAH June 4, 1997) ( Ñ [The

agency Ô s] arguments equate generally applicable with universally applicable.

It is unnecessary for Petitioner to show that the [statements] apply to all

parties contracting with [the agency] for the provision of any sort of service or

product subject to Medicaid reimbursemen t. It is enough to show that the

[statements] are generally applicable to classes of providers. Ò ). Harmony

Env Ô t , Case No. 14 - 5334RU, FO at 32.

70. On the other hand, if the class of persons or activities is too narrow, a

statement pertaining solely to tha t category might be considered not

Ñ generally applicable. Ò For example, in Agency for Health Care

Administration v. Custom Mobility, Inc. , 995 So. 2d 984 (Fla. 1st DCA 2008),

it was alleged that AHCA Ô s statistical formula for cluster sampling, which the

ag ency used in some cases to calculate Medicaid overpayments, was an

unadopted rule. The court found, however, that the formula was not a

statement of general applicability because it did not apply to all Medicaid

providers, or even to all providers being au dited, but rather only to some of

the providers being audited. Id. at 986. The category of Ñ all providers being

audited using cluster sampling Ò -- which comprised about ten percent of all

auditees -- was too specific to support a finding of general applicabili ty.

Harmony EnvÔt , Case No. 14 - 5334RU, FO at 33.

71. Here, the only rule of general applicability in the review process is the

general weighing and balancing of promulgated statutory and rule criteria

against the facts set forth in the CON a pplications at issue. The fact that

AHCA has recently preliminarily approved three CON a pplications in the

absence of numeric need is too narrow to demonstrate any rule of general

applicability. The three individual CON a pplications involved various facts,

circumstances, and data that presented Ñ special Ò and Ñ not normal Ò

c ircumstances as contemplated by the CON statutes and rules when seeking

approval in the absence of numeric need. The Agency found that the overall

weighing and balancing of the statutory and rule criteri a warranted approval

in those specific cases based upon the information presented.

72. Clearly, from a review of the plain meaning of the statutory criteria

set forth in s ection 408.035 and the rule criteria in rule 59C - 1.0355, AHCA

has substantial discret ion in its review of CON a pplications based on a

weighing and balancing of all the CON review criteria. The cases stating this

date back nearly 40 years and confirm that the Agency must weigh and

balance all CON statutory and rule criteria. No single crite rion, including the

presumption tied to a published numeric fixed need pool, is controlling. A

presumption pursuant to a numeric need is only a starting point, and other

Ñ not normal Ò circumstances must be considered . Balsam v. Dep Ô t of H RS ,

486 So. 2d 1341 , 1345, 1349 (Fla. 1st DCA 1986) ; Suncoast Hospice of

Hillsborough, LLC v. Cornerstone Hospice & Palliative Care, Inc. & VITAS

Healthcare Corp. of Fla. , Case No. 20 - 1733CON , RO at 261 (Fla. DOAH

Mar. 26, 2021 ; Fla. AHCA June 1, 2021). Ñ [T]he appropriate we ight to be

given to each individual criterion is not fixed, but rather must vary on a case -

by - case basis, depending upon the facts of each case. Ò Collier Med. Ctr., Inc. v.

State, Dep Ô t of H RS , 462 So. 2d 83, 84 (Fla. 1st DCA 1985) ; Humana, Inc. v.

Dep Ô t o f H RS , 469 So. 2d 889 (Fla. 1st DCA 1985).

73. Rather than demonstrating an alleged series of unadopted Agency

statements perceived to be rules, the main thrust of VNA Ô s allegations is that

it disagrees with the evaluation of the statutory and rule criteri a based upon

the arguments made in the CON applications currently in the DOAH hearing

process . As found throughout this O rder, the Agency followed a specific

statute, section 408.043 , and a duly promulgated rule, 59C - 1.0355(4)(d)

and (3)(d). No unadopted r ule statement has been relied upon or made by the

Agency that should hinder in any fashion the pending or completed hearings

concerning the Ñ not normal circumstances Ò or Ñ special circumstances Ò alleged

by the applicants in the following matters: Hope Hospi ce and Community

Services, Inc. v. VITAS Healthcare Corporation of Florida, Inc. , and Agency

for Health Care Administration, DOAH Case No . 21 - 2328CON ; Tidewell

Hospice, Inc. v. Affinity Care of Manatee County, LLC , and Agency for Health

Care Administration , DOAH Case No. 21 - 2329CON ; or VNA Hospice of

Indian River County, Inc. v. Brevard HMA Hospice, LLC , and Agency for

Health Care Administration , DOAH Case No. 22 - 0 209CON (the low case

number in a matter consolidated with 22 - 0 210CON.

74. Overall, the eviden ce presented fails to establish that the Agency has

based its preliminary decision ( contained in a SAAR) to approve Brevard

HMA Ô s CON a pplication on the basis of any unadopted rule. Rather, it

appears that the preliminary decisions of the Agency expressed in the SAAR

regarding the Brevard HMA , the VITAS or the Affinity applications

referenced in the preceding paragraph, are simply the Agency Ô s preliminary

determinations based on weighing and balancing of statutory and rule

provisions of individual applicant s as required by law. As to DOAH Case

No. 22 - 0 209CON, the p etitioner , VNA , has preserved its rights by petitioning

for a hearing involving disputed issues of material fact and will have the

opportunity to dispute the Agency Ô s preliminary decision through t he pending

p roceeding on the merits of the CON a pplication.

75. Based upon the foregoing F indings of F act and C onclusions of L aw,

VNA has failed to demonstrate by a preponderance of the evidence that the

Agency has adopted statements or made decisions base d upon such

statements that constitute an unadopted and invalid rule outside the

Agency Ô s rulemaking authority and in violation of statutory requirements.

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that VNA Ô s Pet ition Challenging Unadopted and Invalid Rules is

hereby D ISMISSED .

D ONE A ND O RDERED this 25th day of March , 2022 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apalachee Parkway

T allahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March , 2022 .

C OPIES F URNISHED :

Seann M. Frazier, Esquire Geoffrey D. Smith, Esquire

Kristen Bond Dobson, Esquire Susan C . Smith, Esquire

Parker, Hudson, Ra iner & Dobbs, LLP Sabrina B. Dieguez, Esquire

215 South Monroe Street , Suite 750 Smith & Associates

Tallahassee, Florida 32301 709 South Harbor City Boulevard , Suite 540

Melbourne, Florida 32901

Julia E . Smith, Esquire

D. Carlton Enfinger, Esquire Shena L. Grantham, Esquire

Agency for Health Care Administration Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3 Building 3, Room 3407B

Tallahassee, Florida 32308 2727 Mahan Drive

Tallahassee, Flo rida 32308

Gabriel F.V. Warren, Esq uire

Stephen A. Ecenia, Esquire Josefina M. Tamayo, General Counsel

Rutledge Ecenia, P.A. Agency for Health Care Administration

119 South Monroe Street, Suite 202 2727 Mahan Drive , Mail Stop 3

Post Office Box 551 Tallahassee, Florida 32308

Tallahassee, Florida 32302

Anya Owens, Program Administrator Thomas M. Hoeler, Esquire

Margaret Swain Agency for Health Care Administration

Florida Administrative Code and Register 2727 Mahan Drive , Mail Stop 3

Department of State Tallahassee, Flo rida 32308

R. A. Gra y Building

500 South Bronough Street Simone Marstiller, Secretary

Tallahassee, Florida 32399 - 0250 Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Ken Plante, Coordinator Tallahassee, Florida 32308 - 5407

Joint Admin istrative Proced ures

Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judici al

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 d istrict c ourt of

a ppeal in the appellate district where the agency maint ains its headquarters

or where a party resides or as otherwise provided by law .