93-001640
Agency For Health Care Administration vs.
Park Imaging, Inc.
Status: Closed
Recommended Order on Wednesday, February 9, 1994.
Recommended Order on Wednesday, February 9, 1994.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AGENCY FOR HEALTH CARE, )
13ADMINISTRATION, )
15)
16Petitioner, )
18)
19vs. ) CASE NO. 93-1640
24)
25PARK IMAGING, INC., )
29)
30Respondent. )
32______________________________)
33RECOMMENDED ORDER
35Pursuant to notice, a formal hearing was held in this case on June 22,
491993, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated
61Hearing Officer of the Division of Administrative Hearings.
69APPEARANCES
70For Petitioner: J. Robert Griffin, Esquire
76Agency for Health Care Administration
81Suite 301, The Atrium
85325 John Knox Road
89Tallahassee, Florida 320308-4131
92For Respondent: Byron B. Mathews, Jr., Esquire
99McDermott, Will & Emery
103201 South Biscayne Boulevard, 22nd Floor
109Miami, Florida 33131
112STATEMENT OF THE ISSUES
116The issue in this case is whether Respondent, Park Imaging, Inc., was
128obligated to file a report and pay an indigent care assessment pursuant to
141Section 395.1015, Florida Statutes, (1991) and, if so, whether Respondent should
152be fined or otherwise sanctioned for its failure to do so.
163PRELIMINARY STATEMENT
165In an Administrative Complaint dated February 22, 1993, the Agency For
176Health Care Administration (the "Agency" or "AHCA"), charged Park Imaging, Inc.
188("Park Imaging") with failing to file the report and pay the indigent care
203assessment required by Section 395.7015, Florida Statutes (1992 Supp.). 1/
213According to the Administrative Complaint, the report and assessment were for
224the period from July 1, 1991 through December 31, 1991 and were due on or before
240April 30, 1992. As a result of Park Imaging's alleged failure to comply with
254the statutory requirements, the AHCA sought to impose an administrative fine in
266the amount of $48,900 against Park Imaging. Park Imaging filed a Petition for
280Formal Administrative Hearing disputing the allegations of the Administrative
289Complaint. The case was referred to the Division of Administrative Hearings
300which noticed and conducted the hearing.
306The case was originally assigned to Hearing Officer Michael Parrish. The
317case was transferred to the undersigned Hearing Officer who appeared at the time
330and place scheduled for the hearing. On the day before the hearing was to
344commence, Park Imaging filed a Motion To Quash regarding a subpoena duces tecum
357that had been served on an employee of the company. The parties presented
370argument regarding the Motion at the commencement of the hearing. The AHCA made
383an ore tenus motion for a continuance based upon Park Imaging's failure to
396comply with the subpoena. That motion was denied and the parties were directed
409to proceed with the presentation of the evidence available. At the conclusion
421of the hearing, a schedule was established for the AHCA to obtain access to the
436documents sought in the subpoena and to supplement the record in this proceeding
449if necessary. By letter dated July 22, 1993, the AHCA advised that it had no
464further evidence to present. Consequently, the record in this proceeding was
475closed.
476At the hearing on June 22, 1993, Petitioner presented the testimony of two
489witnesses: Dana Linn, who is employed by Park Imaging as its regional general
502manager; and Fran Buie, the administrator of the Ambulatory Health Section of
514the AHCA and formerly an economic analyst in the special studies section of the
528AHCA. The AHCA had seven exhibits marked for identification. The AHCA's
539Exhibits 1, 2 and 4 were copies of dictionary definitions of various terms.
552Official recognition was taken of those dictionary definitions pursuant to
562Section 120.61, Florida Statutes. Park Imaging's relevancy objection to Exhibit
5723 was overruled. 2/ Park Imaging's relevancy objection to the AHCA's Exhibit 5,
585which was a composite of correspondence, was also overruled. Park Imaging's
596hearsay objections to this composite exhibit were noted and the documents were
608considered in accordance with Section 120.58(1)(a), Florida Statutes.
616Respondent recalled Mr. Linn to testify and also called Robert Sabo, a CPA
629licensed in the State of Florida who was accepted as an expert in the financial
644aspects of the regulation of healthcare interests. Park Imaging offered two
655exhibits into evidence, both of which were accepted without objection.
665During the hearing, a question arose as to which party was properly styled
678as the Petitioner in this proceeding and which party had the burden of proof in
693this action. Because the Agency filed an Administrative Complaint against Park
704Imaging and sought to impose administrative sanctions against the company, the
715undersigned advised the parties that the Agency would be designated as the
727Petitioner. The Agency was directed to proceed first with the presentation of
739its case, but ruling on the question of who had the burden of proof was reserved
755in order to allow the parties an opportunity to submit legal argument. That
768issue is addressed further in the Conclusions of Law below.
778A transcript of the proceeding has been filed. Both parties have submitted
790proposed findings of fact and conclusions of law. A ruling on each of the
804party's proposed findings of fact is included in the Appendix attached to this
817Recommended Order.
819FINDINGS OF FACT
822Based upon the oral and documentary evidence presented at the final hearing
834and the entire record in this proceeding, the following findings of fact are
847made:
8481. At all times pertinent to this proceeding, Park Imaging owned and
860operated a fixed-site diagnostic imaging center in Coral Springs, Florida. Park
871Imaging also owned and operated a mobile diagnostic service which is described
883in more detail below.
8872. Since 1984, hospitals in Florida have been required to pay an
899assessment based on net operating revenue to the Public Medical Assistance Trust
911Fund ("PMATF") for the funding of health care services to indigent persons. See
926Chapter 84-35, Laws of Florida, codified at Section 395.101, Florida Statutes
937(1989). Effective July 1, 1991, the statutory requirement to file a report with
950the AHCA and pay the PMATF assessment was expanded to include certain
962additional health care entities including "diagnostic imaging centers." See,
971Section 177, Chapter 91-112, Laws of Florida, codified at Section 395.1015,
982Florida Statutes (1991). For the health care entities that fell under the 1991
995statute, the first reporting period began July 1, 1991 and ran through December
100831, 1991. The report was due on or before March 31, 1992 and the assessment was
1024to be paid by April 30, 1992. Park Imaging filed the required report and paid
1039the applicable assessment for its fixed-site diagnostic imaging center. Park
1049Imaging did not file a report or pay any assessment regarding its mobile
1062diagnostic service.
10643. Except for diagnostic imaging centers, all of the "health care
1075entities" that were required to file a report and pay an indigent care
1088assessment pursuant to Section 395.1015, Florida Statutes, are licensed or
1098registered by the State. Thus, there was no question as to the need for those
1113entities to comply with the statute. Diagnostic imaging centers, on the other
1125hand, are not licensed or registered and, consequently, there was less certainty
1137as to the types of providers or services that fell into this category.
11504. Park Imaging has a separate medical care provider number for its mobile
1163operation. The AHCA has treated the two operations as separate entities and
1175sent Park Imaging separate reporting forms with different identifying numbers
1185for each of the operations.
11905. Park Imaging's mobile operation consists of the transportation of
1200ultrasound equipment in vans to private physicians' offices. No services are
1211performed within the vans. The equipment is off-loaded from the van into the
1224physician's office. The physicians utilize the equipment for their patients.
1234All power necessary to operate the equipment is provided by the physician's
1246office. The equipment can be plugged into a standard electrical wall socket in
1259the physician's office.
12626. During the period from July 1, 1991 to December 31, 1991, Park
1275Imaging's diagnostic operation provided ultrasound service primarily to cardiac
1284and obstetric patients. In all cases, a physician ordered the test and defined
1297the protocol to be followed during the test. Park Imaging provided technical
1309expertise, including an onsite employee of the company. Park Imaging's
1319technician provided the expertise necessary for running the equipment and
1329executed the protocol established by the physician. The physician was
1339responsible for interpretation of the test results and for managing the outcome
1351of the results of the test and communicating the results to the patient.
13647. Section 395.1015, Florida Statutes (1991) defined "diagnostic imaging
1373centers" that were subject to the reporting and assessment requirements as
1384follows:
1385Diagnostic imaging centers that are free-
1391standing outpatient facilities that provide
1396specialized services for the identification
1401or determination of a disease through
1407examination and also provide sophisticated
1412radiological services such as computed
1417tomography scans and magnetic resonance
1422imaging, and in which services are rendered
1429by a physician licensed by the Board of
1437Medicine under Section 458.311, Section
1442458.313, or Section 458.327, or by an
1449osteopathic physician licensed by the Board
1455of Osteopathic Medical Examiners under
1460Section 459.006, Section 459.007, or Section
1466459.0075.
14678. Park Imaging contends that its mobile operations do not have a
"1479facility" upon which an assessment can be levied under Section 395.1015,
1490Florida Statutes, (1991) (subsequently amended and renumbered as Section
1499395.7015).
15009. Park Imaging also contends that its mobile operations did not provide
"1512sophisticated radiological services" as that term is used in Section 395.1015,
1523Florida Statutes. In this regard, Park Imaging argues that the equipment
1534utilized in the mobile operations was much less sophisticated than many of the
1547other types of services provided in a fixed setting.
155610. The evidence established that Park Imaging's mobile operations
1565provided ultrasound services. There is no evidence that Park Imaging's mobile
1576operations provided computed tomography (CT) scans or magnetic resonance imaging
1586(MRI) or any other services other than ultrasound.
159411. CT and MRI equipment could not be transported in a van or off-loaded
1608into a physician's office. CT and MRI equipment require special lead-wall
1619shielding in the structure in which they are used. The investment for CT and
1633MRI equipment is significantly higher than ultrasound as are the government
1644reimbursement rates.
164612. Park Imaging's decision not to file the report and pay the assessment
1659on its mobile operations was based upon advice of legal counsel. Park Imaging
1672did not attempt to hid or conceal its decision from the AHCA. In several
1686letters to the AHCA in the fall of 1992, Park Imaging advised the AHCA that it
1702did not believe its mobile operations fell within the scope of the statute.
171513. By letter dated September 29, 1992 from Carolyn Turner, who at the
1728time was the Administrator of the AHCA's Ambulatory Health Section, to Joseph
1740Burlandi, corporate counsel for Park Imaging, the AHCA notified Park Imaging
1751that it's mobile diagnostic operations were not exempt from the provisions of
1763Section 395.1015, Florida Statutes (1991) and that Park Imaging would be
1774considered delinquent from that time forward if the report was not filed and the
1788assessment was not paid. This position was subsequently reaffirmed in a letter
1800dated October 30, 1992 from Julia P. Forrester, senior attorney for the AHCA, to
1814Joseph Burlandi. In a letter dated November 23, 1992, the Agency once again
1827reaffirmed its position that Park Imaging 's mobile operations fell within the
1839scope of the statute None of these letters from the AHCA to Park Imaging were
1854sent by certified mail.
185814. When Park Imaging continued to refuse to file the report and pay the
1872assessment on its mobile operations, the AHCA issued an Administrative Complaint
1883dated February 22, 1993 seeking to impose penalties against Park Imaging for
1895failure to comply with the requirements of what had subsequently been renumbered
1907as Section 395.7015, Florida Statutes, and Rule 59B-6, Florida Administrative
1917Code, for the reporting period July 1, 1991 through December 31, 1991.
192915. At the hearing in this matter, Fran Buie, the current Administrator of
1942the AHCA's Ambulatory Health Section, testified that the AHCA has consistently
1953construed and applied Section 395.1015, Florida Statutes (1991) to mobile
1963facilities. She also testified that her review of the Agency's records confirms
1975that a number of mobile units have complied with the statutory requirements.
1987The evidence did not establish the types of services provided by these other
2000mobile operations.
2002CONCLUSIONS OF LAW
200516. The Division of Administrative Hearings has jurisdiction over the
2015parties to and the subject matter of this proceeding. Section 120.57(1),
2026Florida Statutes (1993).
202917. The AHCA contends that Park Imaging was obligated to comply with the
2042provisions of Section 395.7015, Florida Statutes (1993). The AHCA has the
2053burden of proof on this issue. See, Balino v. Department of Health and
2066Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); Department of
2078Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786-789 (Fla. 1st DCA
20911981); Southpointe Pharmacy v. Department of Health and Rehabilitative Services,
2101596 So. 2d 106, 109 (Fla. 1st DCA 1992.)
211018. Section 395.1015, Florida Statutes (1991) became effective July 1,
21201991. See, Section 177, Chapter 91-112, Laws of Florida. This statute imposed
2132an indigent care assessment of 1.5 per cent of net operating revenue on certain
"2146health care entities."
214919. The reporting and assessment requirements of Section 395.1015, Florida
2159Statutes (1991) were applicable beginning with the period from July 1, 1991
2171through December 31, 1991. The assessment and report for this first reporting
2183period were due to the Agency no later than April 30, 1992. Section 395.1015,
2197Florida Statutes(1991) was the statute in effect during the reporting period
2208July 1, 1991 to December 31, 1991 and, thus, is the controlling statute for this
2223case. In 1992, Section 395.1015, Florida Statutes was amended and renumbered as
2235Section 395.7015, Florida Statutes (1992 Supp.)
224120. "Health care entities" are defined in the statute to include: (1)
2253ambulatory surgical centers licensed under Section 395.003, Florida Statutes;
2262(2) clinical laboratories licensed under Section 483.091, Florida Statutes; (3)
2272free standing radiation therapy centers providing treatment through the use of
2283radiation therapy machines that were registered under Section 404.22 and Rules
229410D-99.902, 10D-99.903 and 10D-99.904 of the Florida Administrative Code; and
2304(4) diagnostic imaging centers.
230821. As noted in the Findings of Fact above, "diagnostic imaging centers"
2320are not specifically licensed or registered by the AHCA. The definition of
"2332diagnostic imaging centers" in Section 395.1015(2)(b)(4), Florida Statutes
2340(1991), covers "freestanding outpatient facilities."
234522. On November 27, 1991, the AHCA published proposed Rule 10N-6 which was
2358intended to implement Section 395.1015, Florida Statutes (1991). See, Florida
2368Administrative Weekly, Vol. 17, No. 48, pp. 5664-5670. Apparently, as a result
2380of public comments to the proposed rule and rule challenges to various aspects
2393of the rule, the rule was not fully adopted until May of 1992. See Florida
2408Administrative Weekly, Vol. 18, No. 18, p. 2669, May 1, 1992. (Rule 10N-6,
2421Florida Administrative Code will be referred to in this Recommended Order as the
"2434Initial Rule.") The Initial Rule was subsequently transferred with amendments
2445to Rule 59B-6. (This rule will hereinafter be referred to as the "Current
2458Rule".) Rule 59B-6.009(2), provides:
2463(2) "freestanding" means that the healthcare
2469entity bills and receives revenue which is
2476not directly subject to the hospital PMATF
2483assessment described in Section 395.701, F.S.
"2489Freestanding" means that the healthcare
2494entity is not a department or other
2501subdivision of the hospital. 3/
2506In essence, the requirement that a diagnostic imaging center be "freestanding"
2517has been interpreted by the AHCA in both the Initial and Current Rule to simply
2532mean that it should not be part of a hospital.
254223. Clearly, Park Imaging's mobile operation was "freestanding" within the
2552scope of this interpretation. Park Imaging argues, however, that its mobile
2563operations do not qualify as a "facility" within the meaning of Section
2575395.1015, Florida Statutes (1991). Essentially, Park Imaging contends that,
2584because the equipment is off-loaded to a physician's office and Park Imaging
2596does not utilize its vans or any particular building to provide the services,
2609there is no "facility" and consequently its mobile operations do not fall within
2622the scope of the statute. This interpretation of what constitutes a "facility"
2634is unduly restrictive.
263724. The AHCA has interpreted the statute to mean that the reporting
2649requirements and assessments are applicable to the revenues generated by the
2660operation of the diagnostic equipment outside the hospital irrespective of
2670whether the equipment is located in a separate building or similar structure.
2682This interpretation by the agency charged with administering the statute is
2693reasonable and should be accepted. See, Department of Environmental Regulation
2703v. Goldring, 477 So. 2d 532 (Fla. 1985); Natelson v. Department of Insurance,
2716454 So. 2d 31 (1st DCA 1984) rev. den. 461 So. 2d 115 (Fla. 1985); Escambia
2732County vans Pac, 584 So. 2d 603 (Fla. 1st DCA 1991); National Federation of
2746Retired Persons v. Department of Insurance, 553 So. 2d 1289 (Fla. 1st DCA 1989).
276025. The term "facility" is not defined in the statute or the rules. At
2774the hearing, two standard dictionary definitions of the term were offered. The
2786American Heritage Dictionary, Houghton Mifflin Company, 1982, defines facility
2795as ". . . something created to serve a particular function." Webster's New
2808Collegiate Dictionary, G. and C. Merriam Company, 1979, defines facility as
"2819something that promotes the ease of an action, operation or course of conduct--
2832usu. used in pl.
2838. something (as a hospital) that is built, installed, or established to serve a 2852particular purpose." 285426. These standard definitions support the AHCA's contention that a "2864facility" does not have to be a building or other structure. Park Imaging has 2878provided no reasonable explanation as to why the legislature would have intended 2890to regulate and assess diagnostic imaging activities that occur within a fixed 2902site or building while exempting the same activities when they are performed 2914through a mobile operation. 291827. Park Imaging points out that the term "facility" as used in Section 2931395.1015, is qualified by the phrase, "in which." Park Imaging suggests that 2943the inclusion of this language manifests an intent that only those services 2955provided within the facility fall within the scope of the statute. However, in 2968considering the intent of the statute as a whole, it is clear that the 2982legislative intent was to impose the assessment on certain types of 2993sophisticated radiological services being conducted outside of a hospital. The 3003intent was not to distinguish between those services performed in a fixed office 3016building as opposed to mobile services. To read the statute in the 3028hypertechnical way proposed by Park Imaging would create a loophole that was 3040clearly not contemplated in the drafting of the statute. See, Palm Springs 3052Hospital v. State Farm Insurance Company, 218 So. 2d 793, 797 (Fla. 3rd DCA 30661969) aff'd 232 So. 2d 737 (Fla. 1970). 307428. To qualify as a "diagnostic imaging center" for purposes of Section 3086395.1015, Florida Statutes (1991), the services must be "rendered" by a 3097physician. The evidence in this case established that all of the services 3109provided by Park Imaging's mobile operations were ordered by a physician who 3121defined the protocol to be followed and interpreted the results. Even though an 3134employee of Park Imaging may have been responsible for operating the equipment, 3146the services were still "rendered" by a physician within the scope of the 3159statute. 316029. Park Imaging also contends that its mobile operations did not provide "3172sophisticated radiological services" as required by Section 395.1015, Florida 3181Statutes. The examples of sophisticated radiological services contained within 3190the statute include computed tomography scans and magnetic resonance imaging. 3200It is clear from the wording of the statute that these examples were not 3214intended to be exclusive. From the outset, the AHCA has interpreted "3225sophisticated radiological services" to include ultrasound. The Initial Rule 3234stated: "3235Sophisticated radiological services" include 3239but are not limited to magnetic resonance 3246imaging, mammography, ultrasound, nuclear 3250medicine, intravenous pyleogram, angiography, 3254arteriography, tomography, computed 3257tomography, . . ." 3261See, Rule 10N-6.009(24). 326430. Park Imaging's suggestion that ultrasound is less sophisticated than 3274CT scans or MRI is irrelevant. From the time the statute was enacted, it 3288appears that the AHCA has consistently interpreted "sophisticated radiological 3297services" to include ultrasound. There is no evidence that the proposed agency 3309definition in Rule 10N-6.009(24) was challenged when it was proposed or at any 3322time after it became effective. 332731. As noted above, in 1992 the legislature amended Section 395.1015, 3338Florida Statutes. 4/ The amended statute was renumbered as Section 395.7015, 3349Florida Statutes (1992 Supp.). The amended statute incorporated the AHCA 3359interpretation that "sophisticated radiological services" includes ultrasound. 3366There is an exemption in the amended statute for ultrasound services provided as 3379a part of a private physician's office practice or as part of a group practice. 33945/ See, Section 395.7015(2)(b)4, Florida Statutes (1992 Supp.) and Section 3404408.07(21), Florida Statutes (1992 Supp.) While Park Imaging suggests that its 3415mobile operations may fall under this exemption, this new exemption did not 3427become effective until October 1, 1992. Moreover, the exemption does not apply 3439to equipment owned by a company other than the physician or physician's group 3452providing the services. 345532. In sum, the AHCA has properly deemed Park Imaging's mobile diagnostic 3467operations to fall within the scope of Section 395.1015, Florida Statutes 3478(1991). Consequently, Park Imaging is required to file the applicable report 3489and pay the PMATF assessment. 349433. In the Administrative Complaint, the AHCA sought to impose an 3505administrative fine of $48,900 on Park Imaging as a result of its failure to 3520file the report and pay the assessment when due. The fine was calculated for 3534the period from May 1, 1992 through March 22, 1993. 354434. As authority for the imposition of the fine, the Administrative 3555Complaint cites Section 395.701(3), Florida Statutes (1992 Supp.), and Rule 59B- 35666.023 and Rule 59B-6.024, Florida Administrative Code. Section 395.701(3), 3575Florida Statutes (1992 Supp.) (formerly Section 395.101, Florida Statutes, and 3585renumbered pursuant to Section 51, Chapter 92-289, Laws of Florida) is only 3597applicable to hospitals that fail to pay assessments. As set forth in Section 3610395.701(1)(c), Florida Statutes, (1992 Supp.) a hospital is defined in Section 3621395.002(12), Florida Statutes. That definition covers only inpatient 3629establishments. Thus, this statute is not specifically applicable to the other 3640health care entities covered by Section 395.1015, Florida Statutes (1991), and 3651cannot serve as authority for the imposition of a fine in this case. 366435. The amendment and renumbering of the applicable statutes and rules 3675creates a great deal of confusion regarding the statutory and rule provisions 3687that govern this proceeding, especially with respect to the imposition of a 3699fine. Unfortunately, neither party has satisfactorily traced the statutory and 3709rule changes. 371136. In view of the confusing legislative changes, there is some question 3723as to whether the AHCA has the authority to impose an administrative fine 3736against a health care entity other than a hospital. Section 395.1015(5), 3747Florida Statutes (1991), authorized the AHCA to use the authority granted in 3759Sections 407.02, 407.06 and 407.07, Florida Statutes, to administer the PMATF 3770assessment program. However, those statutory provisions were repealed effective 3779July 1, 1992. See, Section 82, Chapter 92-33, Laws of Florida. Neither party 3792has cited to any other provisions in the current or former law which clearly 3806authorize the AHCA to impose an administrative fine on a health care entity such 3820as Park Imaging for failure to comply with the PMATF reporting and assessment 3833requirements. Even though it was not cited in the Administrative Complaint, 3844Section 395.7015(5), Florida Statutes (1992 Supp.) authorized the AHCA to use 3855its authority under Chapter 408, Florida Statutes, to administer the PMATF 3866assessment program. Arguably, this authorization enables the AHCA to impose a 3877fine pursuant to Section 408.08, Florida Statutes (1992 Supp.). 388637 . When the AHCA submitted proposed rule 10N-6 on November 27, 1991, 3899provisions were included regarding penalties for failure to file the PMATF 3910assessment and/or for failure to file the applicable report. As a result of 3923public hearing and a rule challenge which led to certain amendments that are not 3937pertinent to this proceeding, Proposed Rules 10N-6.023 and 10N-6.024, did not 3948become effective until May 6, 1992 which was after the due date for the report 3963and assessment for the first reporting period. The Initial Rule provided for a 3976fine not to exceed $1,000 per day for any health care entity which refused to 3992file, failed to timely file, or filed false or incomplete reports. See, Rule 400510N-6.023(1). After the 1992 legislative changes which resulted in Section 4015395.7015, Florida Statutes (1992 Supp.), provisions of the Initial Rule were 4026amended and transferred to Rules 59B-6.023 and 59B-6.024. The provision for a 4038$1,000 a day fine was deleted in November of 1992 when Rule 10N-6 was 4053transferred to Rule 59B-6. Both the Initial and Current Rules provide for a 4066fine not to exceed $50 per day for the first violation when a health care entity 4082was delinquent in filing a report. Both rules also provide for a fine not to 4097exceed $100 per day for the delinquent payment of an assessment. These are the 4111provisions that the AHCA is apparently relying upon in calculating the fine in 4124this case. 412638. Both the Initial and Current Rules call for the AHCA to send 4139delinquent report notices and/or payment deficiency notices by certified mail to 4150the chief executive officer of any health care entity which fails to timely file 4164the PMATF report and/or pay the applicable assessment. The delinquent report 4175notices and payment deficiency notices are supposed to include a notification 4186that the matter will be turned over to legal counsel if the report and/or 4200assessment are not received within ten working days from the date of receipt of 4214the certified notice. The rules provide that the penalty period begins the 4226first working day after the due date of the report and assessment. No certified 4240notices were sent in this case. While the parties exchanged correspondence from 4252September 4, 1992 through November 23, 1992 regarding Park Imaging's obligations 4263under the statute, the AHCA never sent a certified notice as contemplated by the 4277rules. Park Imaging contends that the failure to send a certified notice as set 4291forth in Rule 10N-6.023(5), which has been renumbered as 59B-6.023(4), and Rule 430310N-6.024(2), which has been renumbered as 59B-6.024(2), precludes the 4312imposition of any fine in this case. 431939. Arguably, compliance with the certified notice provisions of the rules 4330is not a precondition to the imposition of a fine. On the other hand, a health 4346care provider should be provided with a clear point of entry to challenge an 4360assessment before a fine is imposed. In any event, these issues need not be 4374resolved herein. After considering all of the facts in this case, it is 4387concluded that the imposition of a fine is not appropriate. 439740. The statutory and rule provisions involved in this case set a maximum 4410on the amount of the fine that can be assessed per day. However, neither the 4425statutes nor the rules require the full amount of the fine to be levied. The 4440factors to be considered in determining the amount of a fine are not delineated 4454in the statute or rules. In determining whether to impose a fine and the amount 4469of the fine, it is important to consider all of the facts involved. 448241. As noted in the Findings of Fact, "diagnostic imaging centers" are not 4495specifically licensed by the State and, consequently, a healthcare provider does 4506not automatically know whether it falls within this category. Until the 1992 4518statutory amendment, ultrasound was not specifically mentioned in the statute. 4528While the AHCA has consistently contended that ultrasound qualifies as a "4539sophisticated radiological service" within the scope of the statute, a rule 4550specifically delineating this interpretation was not proposed until November of 45601991 and did not become effective until May of 1992 (which was after the due 4575date for the reporting period in question). Moreover, neither the statute nor 4587the rule clearly cover mobile operations such as Park Imaging's. While the AHCA 4600has interpreted the term "facility" to cover mobile operations, this 4610interpretation has never been enacted in a rule and is not necessarily obvious 4623from the face of the statute. 462942. There is no evidence that Park Imaging knew the AHCA was interpreting 4642the statute to cover mobile operations until September of 1992. Park Imaging 4654never attempted to disguise its operations or mislead the Agency. The 4665interpretation offered by Park Imaging is not unreasonable, even though it is at 4678odds with the equally acceptable interpretation offered by the Agency. 468843. After considering all the factors in this case, it is concluded that 4701Park Imaging's mobile operations fall within the scope of Section 395.1015, 4712Florida Statutes, (1991) as reasonably interpreted by the AHCA and, 4722consequently, Park Imaging is required to file the appropriate report and pay 4734the applicable assessment. However, no fine should be imposed upon Park Imaging 4746for awaiting an impartial determination as to the applicability of the statute. 4758RECOMMENDATION 4759Based upon the foregoing Findings of Fact and Conclusions of Law, it is 4772RECOMMENDED that the Agency for Healthcare Administration enter a final 4782order requiring Respondent, Park Imaging, Inc. to comply with the provisions of 4794Section 395.1015, Florida Statutes (1991) and establishing a due date for the 4806report and assessment after which a fine should be assessed in accordance with 4819the applicable statute and rules. 4824DONE and ENTERED this 9th day of February 1994, at Tallahassee, Leon 4836County, Florida. 4838___________________________________ 4839J. STEPHEN MENTON 4842Hearing Officer 4844Division of Administrative Hearings 4848The DeSoto Building 48511230 Apalachee Parkway 4854Tallahassee, Florida 32399-1550 4857(904) 488-9675 4859Filed with the Clerk of the 4865Division of Administrative Hearings 4869this 9th day of February 1994. 4875ENDNOTES 48761/ As discussed in more detail below, the applicable statute for purposes of 4889this proceeding is Section 395.1015, Florida Statutes (1991). This statute was 4900amended and transferred in 1992 and became Section 395.7015, Florida Statutes 4911(1992 Supp.) 49132/ Petitioner's Exhibit 3 was a copy of a memorandum sent to the chief 4927executive officers of certain healthcare entities by the AHCA regarding proposed 4938Rule 10N-6. At the hearing, there was some confusion as to whether or not that 4953rule was ever adopted. According to the records provided by Petitioner with its 4966Proposed Recommended Order, proposed Rule 10N-6 was initially filed on November 497727, 1991. A public hearing was held regarding the rule and a rule challenge was 4992also filed. Ultimately, the proposed rule was amended in certain respects that 5004are not pertinent to this proceeding and the rule was adopted on May 7, 1992. 5019As discussed in more detail below, Rule 10N-6 was subsequently amended and 5031transferred to Rule 59B-6, Florida Administrative Code, effective November 16, 50411992. 50423/ The last sentence of this rule was added on November 25, 1992 upon the 5057transfer of the initial Rule 10N-6 to the current Rule 59B-6. See, Florida 5070Administrative Weekly, Vol. 18, No. 28, November 25, 1992, pp. 5664-5670. 50814/ The 1992 amendment was not retroactive and became effective on October 1, 50941992. See, Section 102, Chapter 92-289, Laws of Florida. 51035/ In view of the statutory amendments which clarified when ultrasound was 5115covered under the statute, the definition of "sophisticated radiological 5124services" contained in Rule 10N-6.009(24), was deleted when the rules were 5135transferred to Rule 59B-6. See, Florida Administrative Weekly, Vol. 18, No. 48, 5147p. 7306, November 25, 1992. 5152APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1640 5159Both parties have submitted Proposed Recommended Orders. The following 5168constitutes my rulings on the proposed findings of fact submitted by the 5180parties. 5181Petitioner's Proposed Findings of Fact. 51861. Addressed in the Conclusions of Law. 51932. Addressed in the Conclusions of Law. 52003. Addressed in the Conclusions of Law. 52074. Adopted in substance in Findings of Fact 1 and 2. 52185. Adopted in substance in Findings of Fact 12. 52276. Adopted in the Preliminary Statement and in 5235Findings of Fact 13. 52397. Adopted in substance in Findings of Fact 1, 3 and 4. 52518. Adopted in substance in Findings of Fact 14. 5260Respondent's Proposed Findings of Fact. 52651. Addressed in the Preliminary Statement and in the 5274Conclusions of Law. 52772. Adopted in substance in Findings of Fact 2 and in 5288the Conclusions of Law. 52923. Adopted in substance in Findings of Fact 2, 5, 6, 53037, and 9. 53064. Adopted in substance in Findings of Fact 6. 53155. Adopted in substance in Findings of Fact 7. 53246. Rejected as argumentative. This subject matter is 5332addressed in Findings of Fact 5 and 9 and in the 5343Conclusions of Law. 53467. Addressed in the Conclusions of Law. 53538. Addressed in the Conclusions of Law. 53609. Rejected as constituting argument. 536510. Adopted in substance in Findings of Fact 1 and 2. 537611. Adopted in substance in Findings of Fact 2. 538512. Adopted in substance in Findings of Fact 4. 539413. Adopted in substance in Findings of Fact 4. 540314. Adopted in substance in Findings of Fact 4. 541215. Adopted in substance in Findings of Fact 4. 542116. Rejected as constituting argument. 542617. Rejected as unnecessary. 543018. Subordinate to Findings of Fact 10 and 11. 543919. Subordinate to Findings of Fact 9 through 11. 544820. Rejected as constituting argument and subordinate 5455to the conclusions reached herein. 546021. Adopted in substance in Findings of Fact 12 and 13. 547122. Adopted in substance in the Preliminary Statement. 547923. Addressed in the Conclusions of Law. 548624. Addressed in the Conclusions of Law. 549325. Addressed in the Conclusions of Law. 550026. Addressed in the Conclusions of Law. 550727. Addressed in the Conclusions of Law. 5514COPIES FURNISHED: 5516J. Robert Griffin, Esquire 5520Agency for Health Care Administration 5525Suite 301, The Atrium 5529325 John Knox Road 5533Tallahassee, Florida 32308-4131 5536Byron B. Mathews, Jr., Esquire 5541McDermott, Will & Emery 5545201 South Biscayne Boulevard, 22nd Floor 5551Miami, Florida 33131 5554Douglas M. Cook, Director 5558Agency for Health Care Administration 55632727 Mahan Drive 5566Tallahassee, Florida 32308 5569Harold D. Lewis, Esquire 5573The Atrium, Suite 301 5577325 John Knox Road 5581Tallahassee, Florida 32303 5584Sam Power, Clerk 5587Agency for Health Care Administration 5592The Atrium, Suite 301 5596325 John Knox Road 5600Tallahassee, Florida 32303 5603NOTICE OF RIGHT TO SUBMIT EXCEPTIONS 5609All parties have the right to submit written exceptions to this Recommended 5621Order. All agencies allow each party at least 10 days in which to submit 5635written exceptions. Some agencies allow a larger period within which to submit 5647written exceptions. You should contact the agency that will issue the final 5659order in this case concerning agency rules on the deadline for filing exceptions 5672to this Recommended Order. Any exceptions to this Recommended Order should be 5684filed with the agency that will issue the final order in this case. 5697================================================================= 5698AGENCY FINAL ORDER 5701================================================================= 5702STATE OF FLORIDA 5705AGENCY FOR HEALTH CARE ADMINISTRATION 5710STATE OF FLORIDA, AGENCY FOR 5715HEALTH CARE ADMINISTRATION, 5718Petitioner, 5719CASE NO.: 93-1640 5722vs. RENDITION NO.: AHCA-94-61-FOF-HCB 5726PARK IMAGING, INC., 5729Respondent. 5730_____________________________/ 5731FINAL ORDER 5733This cause came on before me for the purpose of issuing a final agency 5747order. The Hearing Officer assigned by the Division of Administrative Hearings 5758(DOAH) in the above-styled case submitted a Recommended Order to the Agency for 5771Health Care Administration (AHCA). The Recommended Order entered February 9, 57811994, by Hearing Officer J. Stephen Menton is incorporated by reference. 5792FINDINGS OF FACT 5795The agency hereby adopts and incorporates by reference the findings of fact 5807set forth in the Recommended Order. 5813CONCLUSIONS OF LAW 5816The agency hereby adopts and incorporates by reference the conclusions of 5827law set forth in the Recommended Order. The parties agreement to allow payment 5840of the PMATF by installment payments as stated in Mr. Coleman's letter of March 585410, 1994, is adopted and incorporated by reference. 5862Based upon the foregoing, Park Imagining Incorporated shall pay the PMATF 5873assessment in nine equal installment payments. The first payment is due no 5885later than 30 days after the date of rendition of this Final Order. 5898DONE and ORDERED this 4th day of April, 1994, in Tallahassee, Florida. 5910______________________________ 5911Douglas M. Cook, Director 5915Agency for Health Care 5919Administration 5920A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL 5935REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH 5950THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED 5965BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE 5979AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS 5990SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE 6002OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. 6018Copies furnished to: 6021J. Robert Griffin, Esquire 6025Senior Attorney, Agency for 6029Health Care Administration 6032325 John Knox Road 6036Atrium Building, Suite 301 6040Tallahassee, FL 32303-4131 6043Byron B. Mathews, Jr., Esquire 6048McDERMOTT, WILL & EMERY 6052201 South Biscayne Boulevard 6056Suite 2200 6058Miami, FL 33131 6061J. Stephen Menton 6064Hearing Officer 6066The DeSoto Building 60691230 Apalachee Parkway 6072Tallahassee, FL 32399-1550 6075CERTIFICATE OF SERVICE 6078I HEREBY CERTIFY that a true and correct copy of the foregoing has been 6092furnished to the above named addresses by U.S. Mail this 6th day of April, 1994. 6107______________________________ 6108R. S. Power, Agency Clerk 6113State of Florida, Agency for 6118Health Care Administration 6121325 John Knox Road 6125The Atrium Building, Suite 301 6130Tallahassee, FL 32303 6133(904)922-3808 6134March 10, 1994 6137VIA FACSIMILE 6139J. Robert Griffin, Esquire 6143Senior Attorney 6145Agency for Health Care Administration 6150325 John Knox Road 6154Suite 301, The Atrium 6158Tallahassee, FL 32303-4131 6161Re: Park Imaging, Inc. vs. State of Florida Agency for 6171Health Care Administration - Case No 93-1640 6178Our File No 23922-018 6182Dear Bob: 6184In accordance with our telephone conversation today, please let this letter 6195serve as our agreement to the above-referenced matter as follows: 62051. No exceptions to the Recommended Order issued in DOAH Case No. 93-1640 6218would be filed by either party; 62242. A Final Order adopting the Recommended Order and incorporating this 6235agreement by reference would be entered expeditiously; 62423. Park Imaging, Inc. would have nine (9) months in which to pay 6255assessments for the periods July 1, 1991 through December 31, 1991; January 1, 62681992 through December 31, 1992; and January 1, 1993 through December 31, 1993; 62814. Payments shall be in an amount equal to one ninth (1/9) of the total 6296assessments for all periods indicated in item 3 above, and each monthly payment 6309shall be made on or before the tenth (10th) day of each month beginning on April 632510, 1994 and ending on December 10, 1994. 63335. If Park Imaging, Inc. fails to make any payment timely, all such 6346assesments become immediately due and Park Imaging Inc. waives all rights to 6358contest enforcement collection; and 63626. The Agency for Health Care Administration waives the right to impose or 6375collect fines or penalties on Park Imaging, Inc. for failure to timely file any 6389report or pay any assessment, up to and including the date of the agreement. 6403If this offer or settlement meets with your approval, please sign on the 6416place where indicated. 6419Sincerely, 6420Ira J. Coleman 6423IJC: la 6425cc: Dana Linn 6428Byron B. Mathews, Jr., Esq. 6433AGREED TO AND ACCEPTED: 6437The Agency for Health Care Administration 6443By: _________________________3/11/94____ 6445J. Robert Griffin, Esq.
- Date
- Proceedings
- Date: 02/26/1996
- Proceedings: Letter to D. Ash from Ziva L. Hirsch re: (a request for RO & FO) filed.
- Date: 04/06/1994
- Proceedings: Final Order filed.
- PDF:
- Date: 02/09/1994
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held June 22, 1993.
- Date: 09/02/1993
- Proceedings: Proposed Recommended Order filed. (From Byron B. Mathews, Jr.)
- Date: 08/30/1993
- Proceedings: Agency For Health Care Administration's Proposed Recommended Order filed.
- Date: 08/30/1993
- Proceedings: (Respondent's) Proposed Recommended Order filed.
- Date: 08/18/1993
- Proceedings: (Petitioner) Motion for Extension of Time to File a Proposed Recommended Order filed.
- Date: 07/21/1993
- Proceedings: Letter to JSM from R. Griffin (re: Proposed RO due date) filed.
- Date: 07/16/1993
- Proceedings: Letter to Byron B. Mathews, Jr. from J. Robert Griffin (re: response to ltr of July 9, 1993) filed.
- Date: 07/12/1993
- Proceedings: CC Letter to J. Robert Griffin from Byron B. Mathews, Jr. (re: ltr of July 8, 1993) filed.
- Date: 07/09/1993
- Proceedings: CC Letter to Byrib B. Mathews, Jr. from J. Robert Griffin (re: suggesting on how to resolve case) filed.
- Date: 07/06/1993
- Proceedings: Transcript filed.
- Date: 06/22/1993
- Proceedings: Agency for Health Care Administration's Notice of Taking Deposition Duces Tecum filed.
- Date: 06/21/1993
- Proceedings: CC Letter to Byron B. Mathews, Jr. from J. Robert Griffin (re: reviewing documents) filed.
- Date: 06/21/1993
- Proceedings: Park Imaging, Inc.'s Motion to Quash Subpoena Duces Tecum; Park Imaging, Inc.'s Motion for Protective Order; Park Imaging, Inc.'s Unilateral Pre-Hearing Statement filed.
- Date: 06/21/1993
- Proceedings: Park Imaging, Inc.`s Unilateral Pre-Hearing Statement filed.
- Date: 06/18/1993
- Proceedings: Park Imaging, Inc.'s Motion for Protective Order filed.
- Date: 06/16/1993
- Proceedings: Agency for Health Care Administration's Notice of Service of Answers to Park Imaging, Inc.'s First Set of Interrogatories filed.
- Date: 06/16/1993
- Proceedings: Agemcu For Health Care Administration's Response to Park Imaging, Inc.'s Requst for Production; Agency For Health Care Administration's Second Request for Production of Documents; Agency For Health Care Administration's Request for Production of Documents
- Date: 06/02/1993
- Proceedings: (Respondent) Motion for Protective Order filed.
- Date: 05/05/1993
- Proceedings: (Petitioner) Request for Production; Park Imaging, Inc.'s First Set of Interrogatories filed.
- Date: 05/05/1993
- Proceedings: (Respondent) Notice of Taking Deposition filed.
- Date: 04/20/1993
- Proceedings: Notice of Hearing sent out. (hearing set for June 22 and 23, 1993; 9:00am; Fort Lauderdale)
- Date: 04/12/1993
- Proceedings: Joint Response to Hearing Officer's Initial Order filed.
- Date: 04/02/1993
- Proceedings: Initial Order issued.
- Date: 03/29/1993
- Proceedings: Notice; Request for Administrative Hearing; Administrative Complaint filed.
Case Information
- Judge:
- J. STEPHEN MENTON
- Date Filed:
- 03/29/1993
- Date Assignment:
- 06/21/1993
- Last Docket Entry:
- 02/26/1996
- Location:
- Fort Lauderdale, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO