94-000906RX University Hospital, Ltd., D/B/A University Hospital vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, July 22, 1994.

Summary: Existing rule on expedited Certificate Of Need review of license consolidations is invalid. No statutory authority and indirect conflict with the law it implements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY HOSPITAL, LTD., )

operating as UNIVERSITY HOSPITAL )

and UNIVERSITY PAVILION HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0906RX

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

WINTER HAVEN HOSPITAL, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 94-0957RX

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

FLORIDA HOSPITAL ASSOCIATION, INC.)

)

Petitioner, )

)

vs. ) CASE NO. 94-1164RX

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled cases on March 29, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner, Stephen A. Ecenia, Esquire

University R. David Prescott, Esquire

Hospital, Ltd. RUTLEDGE, ECENIA, UNDERWOOD,

PURNELL & HOFFMAN, P.A.

215 South Monroe Street, Suite 420

Tallahassee, Florida 32301

For Petitioners, Kenneth F. Hoffman, Esquire

Winter Haven Robert C. Downie, II, Esquire

Hospital, Inc. OERTEL, HOFFMAN, FERNANDEZ

and & COLE, P.A.

Florida Hospital Post Office Box 6507

Association: Tallahassee, Florida 32302

For Respondent: J. Robert Griffin, Esquire

Samuel Dean Bunton, Esquire

Agency for Health Care Administration

301 The Atrium, 325 John Knox Road

Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

The issue for resolution in this case is whether rule 59C-1.004(2)(i),

F.A.C. constitutes an invalid exercise of delegated legislative authority as

asserted by petitioners.

PRELIMINARY STATEMENT

University Hospital, Ltd. (University), on February 21, 1994, filed a

Petition to Determine Invalidity of a Rule with Division of Administrative

Hearings (DOAH) challenging rule 59C-1.004(2)(i), F.A.C., as an invalid exercise

of delegated legislative authority. The case is designated as DOAH Case No. 94-

0906RX.

Winter Haven Hospital, Inc. (Winter Haven), on February 24, 1994, filed a

Petition for Determination of Invalidity of Adopted Rule with DOAH challenging

rule 59C-1.004(2)(i), F.A.C., as an invalid exercise of delegated legislative

authority. The case is designated as DOAH Case No. 94-0957RX.

On February 28, 1994, the Hearing Officer issued an Order of Consolidation

consolidating the above-styled cases. On March 1, 1994, the Florida Hospital

Association (FHA) filed a Petition for Determination of Invalidity of Adopted

Rule. The case was designated as DOAH Case No. 94-1164RX and was subsequently

consolidated with the above two cases.

The parties' Joint Prehearing Stipulation included the stipulation that

petitioners are substantially affected by rule 59C-1.004(2)(i), F.A.C. and have

standing to maintain their administrative action.

At the commencement of the hearing, the parties offered joint exhibits

numbered 1 through 18 which were admitted into evidence. Petitioners presented

the testimony of Michael Jernigan, an expert in health planning. The agency

presented the testimony of Elizabeth Dudek, designated as a representative of

the agency, and the chief of the certificate of need and budget review sections

of the agency. Petitioners, Winter Haven and FHA, presented rebuttal testimony

of Linda Kirker, an employee of Flagler Hospital, Inc., in St. Augustine,

Florida, and who is also a certified public accountant.

The transcript of the hearing was filed on April 12, 1994, and the parties

filed their proposed orders on May 12, 1994, a stipulated deadline. The

findings of fact proposed by petitioners are substantially adopted herein. The

attached appendix addresses Respondent's proposed findings.

FINDINGS OF FACT

1. Petitioner, University Hospital, Ltd. (University), is a Florida

limited partnership and is the licensee of University Hospital and University

Pavilion Hospital. University Hospital is licensed as a general acute care

hospital located at 7201 North University Drive, Tamarac, Florida. University

Pavilion Hospital is licensed as a specialty psychiatric hospital located at

7425 North University Drive, Tamarac, Florida. In its capacity as the licensee

of both University Hospital and University Pavilion Hospital, University

submitted an application for a Certificate of Need (CON) to consolidate the

licenses of the two hospitals. On January 5, 1994, the Agency for Health Care

Administration (AHCA) issued a State Agency Action Report (SAAR) noticing its

intent to deny University's application. A proceeding on the intended denial of

the application is currently pending before DOAH as Case No. 94-1048.

2. Petitioner, Winter Haven Hospital, Inc. (Winter Haven), owns and is

licensed to operate a 579-bed acute care hospital located at 200 Avenue F N.E.,

Winter Haven, Florida; and a 40-bed acute care hospital located at 105 Arneson

Avenue, Auburndale, Florida. Winter Haven submitted an application for a CON to

consolidate the licenses of these two existing health care facilities. On

September 7, 1993, AHCA issued a SAAR denying Winter Haven Hospital, Inc.'s

application.

3. Florida Hospital Association, Inc. (FHA), is a not-for-profit voluntary

association of Florida hospitals.

4. AHCA promulgated and administers rule 59C-1.004(2)(i), F.A.C. (the

challenged rule), and is the state agency charged with the duty and

responsibility of administering chapters 395 and 408, F.S.

5. Rule 59C-1.004(2)(i), F.A.C. provides that projects subject to

expedited CON review (as opposed to batched review) by AHCA include:

(i) Consolidation of the licenses of two

existing health care facilities pursua

subsection 395.003(1)(d), F.S., both of

have the same license and are the same

licensee of licensed health care faci

provided that the consolidation doe

result in a change in licensed bed cap

at either of the premises.

It is undisputed that the "law implemented" by the challenged rule is section

408.036(1)(e), F.S. Section 408.036(1) makes reviewable and requires a CON

application for "all health-care-related projects, as described in paragraphs

(a)-(n)." Subparagraph (e) refers to "any change in licensed bed capacity."

6. The challenged rule specifically provides that it applies to

consolidation of licenses of two existing health care facilities pursuant to

subsection 395.003(1)(d), F.S. There is no subsection 395.003(1)(d), F.S. This

is clearly a scrivener's error, and the reference should be to subsection

395.003(2)(d), F.S., which provides as follows:

(d) The agency shall, at the request of a

licensee, issue a single license to a licensee

for facilities located on separate premises.

Such a license shall specifically state the

location of the facilities, the services, and

the licensed beds available on each separate

premises. If a license requests a single

license, the licensee shall designate which

facility or office is responsible for receipt

of information, payment of fees, service of

process, and all other activities necessary

for the agency to carry out the provisions of

this party. (Emphasis supplied.)

7. No other provision of section 395.003, or of chapter 395, addresses

issuance of a single license for facilities on separate premises.

8. The rule adopted to implement subsection 395.003(2)(d) is rule 59A-

3.153(10), F.A.C., which provides as follows:

When the applicant and hospital are in

compliance with chapter 395, F.S., Part I

and rules 59A-3.077 - 3.093 and 59A-3.151 -

3.176, and have received all approvals

required by law, the department shall issue

a license. The department shall, at the

request of a licensee, issue a single

license to a licensee for facilities located

on separate premises. When a licensee

requests a single license, the licensee shall

be responsible for receipt of information,

payment of fees, service of process, and all

other activities necessary for the department

to carry out the provisions of chapter 395,

F.S., Part I and rules 59A-3.151 - 59A-3.192

and 59A-3.100 - 59A-3.111.

9. The evidence presented at hearing included 17 SAARs issued by AHCA

since December 1990, concerning license consolidation applications. All such

applications were approved by the agency until the September 1993 denial of

Winter Haven's application. In December 1993, two other applicants were denied:

University, and Charter Glade Hospital.

10. In each instance in which a single license has actually been granted

to a licensee owning more than one license, the single license does not increase

beds or bed capacity at any facility, but instead breaks down the number of beds

at each of the premises. (See, Exh. 6, consolidated licenses attached to CON

files 6740, 7047, 7065, 7303, 7311, 7395 and 7401.)

11. Also shown on the license is the premises designated in compliance

with the subsection 395.003(2)(d) requirement that the licensee show which

facility is responsible for receipt of information, payment of fees, and related

matters.

12. At hearing, the AHCA's representative, Elizabeth Dudek, asserted that

there are two kinds of license consolidations for premises owned by the same

licensee, the kind under section 395.003, F.S., and something else. However,

this assertion was not supported by reference to any other provision of law

which expressly addresses licenses, and no such reference has been found.

Further, Ms. Dudek admitted that section 395.003 was the only reference they had

when the rule was promulgated. (transcript, p. 67)

13. Ms. Dudek further testified several times at hearing that the

challenged rule's reference to section 395.003 was a mistake.

14. The CONs for license consolidation which the AHCA has previously

issued result in single licenses as set forth in section 395.003, and rule 59A-

3.153(10).

15. There is no change in licensed bed capacity as a result of the

consolidation of licenses. The licensee owns two facilities before obtaining

license consolidation, with one total number of beds. After consolidation, the

same licensee owns the same premises with the same total licensed beds. The

licensee has the same number of licensed beds both before and after license

consolidation. No additional beds or "capacity" result.

16. In its SAARs on CON applications to obtain single licenses, AHCA's

statements indicate there would be no change in beds or services as a result of

license consolidation. See, e.g., Exhibit 6; CON 7310, SAAR p. 1, para. B.: "As

a result of the proposed consolidation, each hospital will continue to operate

as two separate hospital locations under a single license"; CON 7395, p. 1,

para. B, "As a result of the proposed consolidation, each hospital will continue

to operate as two separate hospital locations under a single license." If there

were to be any changes in services or location of beds "these issues will

require another separate certificate of need review . . . ." (Emphasis

supplied); CON #7399, p. 1., para. B: "This request does not involve any change

to the services nor beds at either hospital"; CON #7401, p. 1, para. B: "This

request does not involve any construction costs, nor any change to the licensed

bed capacity nor services presently being provided at these hospital."

(Emphasis supplied) CON #7440, p. 2, para. 1b(2), "The proposed project is not

for new beds." The language in these SAARs appears after supervisory review by

the agency's highest decision makers on the applications, Alberta Granger and

Elizabeth Dudek.

17. At hearing, Ms. Dudek attempted to explain how bed capacity could

change when a licensee still has the same number of beds after consolidation:

HEARING OFFICER: You argue then that the sum

is greater than the--the whole is greater

than the sum of its parts?

THE WITNESS: Not to the extent that you

have--you still have the same number of total

beds. You still have the same services.

However, how they show up is different. They

don't show up as 100 of yours and 100 of

mine. It will end up being 200 of yours but

still at our separate premises.

And I think that that is different because

what you have in total has changed. [T. 86-87]

18. As the agency acknowledged, if an applicant requested approval for

additional bed capacity at either of its premises, the applicant would not be

entitled to proceed under the challenged rule. The text of the rule reflects

this.

19. AHCA's only claim to CON review jurisdiction for license

consolidations is pursuant to its authority to review "health-care-related

projects" which involve "any change in licensed bed capacity," section

408.036(1)(e), F.S. However, there is no factual basis nor logical basis to

support the agency's assertion of the existence of a change in licensed bed

capacity, and the rule precludes a change in capacity.

20. AHCA construes "licensed bed capacity" to mean the number of licensed

beds. A consolidated license is a new license certificate, and not the same

license number as either of the licensee's prior separate licenses. Facilities

covered by a single license cannot exchange beds or services because they are

tied to separate premises, and transfer of beds or services requires separate

CON review.

21. Consolidation of licenses, since it does not change the number of beds

at any facility, would not change the number of beds in the bed need inventory

for a planning district and would not result in increased bed capacity in a

district or subdistrict.

22. Consolidation of licenses is not addressed in the state health plan or

in local health plans. The consolidation of licenses of existing hospitals held

by the same licensee in the same agency district, with no new beds or services

at either premises does not result in a new health care facility or new health

service or a new hospice, and does not involve the conversion or expansion or

significant modification of a health care facility, health service or hospice.

23. The agency interprets consolidations pursuant to section 395.003, F.S.

to not require any CON review.

24. Section 408.036(1)(e), F.S. requiring CON review for any change in

licensed bed capacity is the provision under which the agency asserts that it

reviewed consolidations prior to adoption of the challenged rule.

25. Ms. Dudek's opinion is that the challenged rule is necessary to

effectively implement the CON statute because the rule allows the agency to

review those applications on an expedited rather than batched basis. It also

allows the agency to determine whether statutory CON review criteria are met as

to any impacts on quality of care, Medicaid, and costs. As a result of a

license consolidation, it is possible that the filing of certain reports and

data could be done differently and it is possible that Medicaid reimbursement

would be available for patients in a facility formerly ineligible for such

reimbursement as a specialty hospital.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction over the

subject matter of, and the parties to, this proceeding pursuant to sections

120.56 and 120.57(1), F.S.

27. As stipulated by the parties, petitioners are substantially affected

by the challenged rule and each has standing to seek an administrative

determination of the invalidity of the rule as provided in section 120.56(1),

F.S.

28. Section 120.52(8), F.S., defines "invalid exercise of delegated

legislative authority" as:

. . . action which goes beyond the powers,

functions and duties delegated by the

Legislature. A proposed or existing rule

is an invalid exercise of delegated

legislative authority if any one or more

of the following apply:

(a) The agency has materially failed to

follow the applicable rule making procedure

set forth in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority , citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

29. The Challenged Rule. Rule 59C-1.004(2)(i), the challenged rule,

adopted 9/10/92, states:

(2) Projects subject to Expedited Review.

Projects are subject to Expedited Review

pursuant to subsection 408.036(2), F.S. In

addition, the following types of projects

shall be subject to Expedited Review, which

shall be conducted in accordance with

procedures set forth in subsection

59C-1.010(3), F.A.C.:

* * *

(i) Consolidation of the licenses of two

existing health care facilities pursuant

to subsection 395.003(1)(d), F.S., both of

which have the same licensee and are the

same type of licensed health care facility,

provided that the consolidation does not

result in a change in licensed bed capacity

at either of the premises.

Specific Authority 408.15, 408.034(5), F.S. Law Implemented 408.036(1)(e),

F.S.

30. Specific Authority and Law Implemented. The challenged rule cites

only section 408.036(1)(e), as the law implemented, and the agency's testimony

at final hearing acknowledges that this is the only law being implemented.

Section 408.036(1)(e) states:

(1) APPLICABILITY - Unless exempt pursuant

to subsection (3), all health-care-related

projects, as described in paragraphs (a)-(n),

are subject to review and must file an

application for a certificate of need with

the department. The department is

exclusively responsible for determining

whether a health-care-related project is

subject to review under ss. 381.701-381.715.

* * *

(e) Any change in licensed bed capacity.

31. As required, the challenged rule cites as specific authority sections

408.034(5) and 408.15, F.S. Section 408.034, in relevant part, provides:

(5) The department may adopt rules

necessary to implement ss. 381.708 - 381.715.

[transferred to ss. 408.031 - 408.045 by

s. 15. ch. 92-33]

Section 408.15, in relevant part, provides:

In addition to the powers granted to the

agency elsewhere in this chapter, the agency

is authorized to:

(8) Adopt, amend, and repeal all rules

necessary to carry out the provisions of

this chapter.

32. Sections 408.034(5) and 408.15 are typical general legislative grants

of rulemaking power which are of little help in determining an agency's specific

jurisdiction or authority. "It is of little legal significance because it is

generally a restatement of the common law concerning agency powers." Cataract

Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359, 1361 (Fla.

1st DCA 1991).

33. The rule is invalid because it enlarges, modifies, or contravenes

section 395.003(2)(d), F.S. The challenged rule does not cite as "law

implemented" section 395.003(2)(d), F.S. However, the challenged rule by its

plain terms purports to provide a procedure for CON review when the

consolidation of licenses is sought pursuant to that statute. Section

395.003(2)(d) states:

395.003 Licensure; issuance, renewal, denial,

and revocation.

(2)(d) The agency shall, at the request of a

licensee, issue a single license to a

licensee for facilities located on separate

premises. Such a license shall specifically

state the location of the facilities, the

services, and the licensed beds available on

each separate premises. If a licensee

requests a single license, the licensee shall

designate which facility or office is

responsible for receipt of information,

payment of fees, service of process, and all

other activities necessary for the agency to

carry out the provisions of this part.

[Emphasis supplied]

34. In clear, unambiguous, and mandatory terms the agency is directed that

it shall, at the request of the licensee, issue a single license to the licensee

for facilities located on separate premises. If the Legislature had desired to

place conditions or restrictions on such a request (such as requiring an

application and approval), it would have included such in the statute. Compare,

Mayo Clinic Jacksonville v. Dept. of Professional Regulation, Board of Medicine,

625 So.2d 918, 920 (Fla. 1st DCA 1993). By requiring the filing and agency

approval of a CON application prior to issuance of a single license to a

licensee for facilities located on separate premises, the challenged rule

imposes additional unauthorized requirements upon a license holder, and directly

enlarges, modifies, and contravenes the express provisions of section

395.003(2)(d).

35. The rule is invalid because it extends the agency's jurisdiction

beyond that authorized by law. Notwithstanding the mandatory provisions of

section 395.003(2)(d), F.S., and the citation to this statute in the challenged

rule, the agency attempts to avoid any consideration of these provisions with

the assertion that the challenged rule's reference to section 395.003 was, in

hindsight, erroneous or mistaken.

36. An agency's interpretation of its own rules, or the construction of a

statute by an agency charged with its administration is entitled to great

weight.

However, the statutory construction must be

a permissible one and the agency cannot

implement `any conceivable construction of

a statute . . . irrespective of how strained

or ingenuously reliant on implied authority

it might be.' State, Board of Optometry v.

Florida Society of Ophthalmology, 538 So.2d

878, 885 (Fla. 1st DCA 1988), review denied,

542 So.2d 1333 (Fla. 1989). The deference

granted an agency's interpretation is not

absolute. `When the agency's construction

clearly contradicts the unambiguous language

of the rule, the construction cannot stand.'

Woodley v. Dept. of Health and

Rehabilitative Services, 505 So.2d 676, 678

(Fla. 1st DCA 1987).

Department of Natural Resources v. Wingfield Development Company, 581 So.2d at

193, 197 (Fla. 1st DCA 1991).

37. As the court stated in Prospective Tenant Report, Inc., v. Dept. of

State, Division of Licensing, 629 So.2d 894, 895 (Fla. 2d DCA 1993):

Generally, an administrative agency's

construction of the statute under which it

operates is given great deference. Ball v.

Florida Podiatrist Trust, 620 So.2d 1018

(Fla. 1st DCA 1993). However, whether the

statute at issue here confers jurisdiction

to the Department at all is purely a matter

of law.

38. An agency cannot confer jurisdiction upon itself. Saddlebrook

Resorts, Inc. v. Wire Grass Ranch and Southwest Florida Water Management

District, 630 So.2d 1123, 1128 (Fla. 2d DCA 1993). Regulatory jurisdiction by

an agency may only be exercised when authorized by law. Any rule which extends

or enlarges an agency's jurisdiction beyond its statutory authority is invalid.

Cataract Surgery Center v. Health Care, 581 So.2d 1359 (Fla. 1st DCA 1991).

39. The agency asserts jurisdiction to require a CON for issuance of a

single license to a licensee for hospital facilities located on separate

premises; i.e., license consolidation. The asserted jurisdiction applies even

though the mere license consolidation does not involve a change in the number of

licensed beds or bed capacity at any of the separate premises. Neither section

408.036(1)(e), F.S. nor any other provision of chapter 408 expressly addresses

the agency's issuance of hospital licenses. Licensing is addressed in chapter

395. Section 395.003(2)(d) unequivocally mandates the issuance of a single

license to a licensee for facilities located on separate premises on request of

a licensee. Where a statute is clear and unambiguous it must be given its

plain, ordinary, and obvious meeting. Holly v. Auld, 450 So.2d 217, 219 (Fla.

1984).

40. The AHCA's assertion that there is a type or kind of licensing

procedure or "consolidation" other than as addressed in chapter 395 finds no

support or authority expressed in any other statute or rule. The challenged

rule expressly refers to license consolidations pursuant to chapter 395. As a

matter of law, there is only one kind of license "consolidation" and it is

expressed in section 395.003.

41. The agency acknowledges the mandatory language of section

395.003(2)(d), F.S. and the agency agrees it does not have authority to require

CON review pursuant to that provision. Therefore, there is no lawful basis, and

no jurisdiction, for the agency to require a CON for mere license consolidation.

42. Although Ms. Dudek articulated some valid health care planning issues

related to license consolidations, unless such consolidations are included

within the several projects listed in section 408.036, they are not subject to

CON review.

43. The rule is invalid because it is in direct

conflict with the statute implemented. A rule may not enlarge, modify, or

contravene the provisions of the law it implements. Section 120.52(8)(c), F.S.;

Department of Natural Resources v. Wingfield Development Company, 581 So.2d 193

(Fla. 1st DCA 1991); State, Dept. of Business Regulation v. Salvation Limited,

Inc., 452 So.2d 65 (Fla. 1st DCA 1984).

44. Certain, but not all, health care related projects are subject to

prior approval by AHCA through a CON review process, and section 408.036, F.S.

describes those projects. The only provision of section 408.036 which the

challenged rule purports to implement addresses a health related project

described as "any change in licensed bed capacity." Section 408.036(1)(e), F.S.

45. The challenged rule purports to implement section 408.306(1)(e) by

requiring a CON application and agency approval to consolidate the licenses of

two existing health care facilities who have the same licensee "provided that

the consolidation does not result in a change in licensed bed capacity." The

authority for CON review granted by section 408.036(1)(e) is predicated upon the

existence of "a change in licensed bed capacity." The challenged rule, on its

face, expressly does not apply to any circumstance that does involve "a change

in licensed bed capacity." Both the challenged rule and the statute use the

identical phrase, "change in licensed bed capacity," with absurdly opposite

purposes. Because the challenged rule clearly modifies, enlarges, or

contravenes the law it purports to implement, it is invalid.

ORDER

Based on the foregoing, it is hereby,

ORDERED:

The petitions for determination of invalidity of rule 59C-1.004(2)(i),

F.A.C. are GRANTED.

DONE AND ORDERED this 22nd day of July, 1994, in Tallahassee, Leon County,

Florida.

____________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of July, 1994.

APPENDIX TO FINAL ORDER, DOAH CASE NO. 94-0906

The following are specific rulings on the findings of fact proposed by the

Respondent. (Petitioners' findings are substantially adopted in the body of

this order.

1. - 4. Addressed in preliminary statement.

5. Adopted in paragraph 5.

6. Adopted in paragraph 6.

7. Adopted in paragraph 23.

8. Rejected as contrary to the evidence and to common sense.

9. Adopted in paragraph 5.

10. Adopted in part in paragraph 23, except for the implication that

the rule distinguishes consolidation of "hospitals" from consolidation of

"licenses".

11. Rejected as unnecessary.

12. Adopted in paragraph 19.

13. Adopted in part in paragraph 19 (as to Dudek's testimony);

otherwise rejected as contrary to the evidence.

14. - 15. Rejected as irrelevant. The necessity of the rule is immaterial

when the rule is not supported by the law. If the rule is truly necessary, the

law needs to be amended.

16. Rejected as contrary to the evidence and logic.

17. - 21. Rejected as immaterial. See paragraphs 14-15 above.

22. - 23. Except for the purpose, which is uncontested, these findings are

rejected as contrary to the evidence and law.

24. - 25. Rejected as unnecessary.

COPIES FURNISHED:

Stephen A. Ecenia, Esquire

Thomas W. Konrad, Esquire

P.O. Box 551

Tallahassee, FL 32302-0551

J. Robert Griffin, Sr. Attorney

Dean Bunton, Sr. Attorney

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road

Tallahassee, FL 32303

Kenneth F. Hoffman, Esquire

Robert C. Downie, II, Esquire

P.O. Box 6507

Tallahassee, FL 32314-6507

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliot Building

401 South Monroe Street

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

review pursuant to Section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rule of Appellate Procedure. Such proceedings are

commenced by filing one copy of a notice of appeal with the Agency Clerk of the

Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or

with the District Court of Appeal in the appellate district where the party

resides. The notice of appeal must be filed within 30 days of rendition of the

order to be reviewed.