94-000889RU Arbor Health Care Company vs. Agency For Health Care Administration
 Status: Closed
DOAH Final Order on Tuesday, May 3, 1994.


View Dockets  
Summary: Agency's application of a statute is not a rule and does not violate 120.535

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ARBOR HEALTH CARE COMPANY, )

13)

14Petitioner, )

16)

17vs. ) CASE NO. 94-0889RU

22)

23AGENCY FOR HEALTH CARE )

28ADMINISTRATION, )

30)

31Respondent, )

33and )

35)

36MANOR CARE OF BOYNTON BEACH, INC., )

43d/b/a MANOR CARE OF SARASOTA )

49COUNTY, )

51)

52Intervenor. )

54___________________________________)

55FINAL ORDER

57Pursuant to notice, the Division of Administrative Hearings, by its duly

68designated Hearing Officer, Claude B. Arrington, held a formal hearing in the

80above-styled case on March 22, 1994, in Tallahassee, Florida.

89APPEARANCES

90For Petitioner: Chris H. Bentley, Esquire

96John L. Wharton, Esquire

100Diane Demor, Esquire

103Rose, Sundstrom & Bentley

1072548 Blairstone Pines Drive

111Tallahassee, Florida 32301

114For Respondent: Richard A. Patterson, Esquire

120Agency For Health Care Administration

125325 John Knox Road, Suite 301

131Tallahassee, Florida 32303-4131

134For Intervenor: James C. Hauser, Esquire

140Lauchlin Waldoch, Esquire

143Messer, Vickers, Caparello, Madsen,

147Lewis, Goldman, & Metz

151215 South Monroe Street, Suite 701

157Post Office Box 1876

161Tallahassee, Florida 32301

164STATEMENT OF THE ISSUES

168Whether the challenged agency statements are unpromulgated rules, whether

177Respondent (AHCA) has violated the provisions of Section 120.535(1), Florida

187Statutes, by failing to adopt the challenged agency statements as rules and

199whether the challenged agency statements are invalid exercises of delegated

209legislative authority within the meaning of Section 120.56, Florida Statutes.

219The challenged agency statements are (a) that Section 408.037(2)(a), Florida

229Statutes, requires that an application for a Certificate of Need list among its

"242capital projects" other Certificate of Need applications which have been

252preliminarily denied by the Agency and are the subject of a petition for an

266administrative hearing (denied-but-in-litigation CON applications), and (b) that

274failure to list denied-but-in-litigation CON applications constitutes grounds to

283summarily reject a Certificate of Need application without further review.

293PRELIMINARY STATEMENT

295Petitioner (Arbor Health Care) and Intervenor (Manor Care) are competing

305applicants for a Certificate of Need (CON) to be issued by AHCA for a nursing

320home project to be located in Sarasota, Florida. AHCA issued its notice of

333intent to award the CON to Arbor Health Care and to deny all other applications,

348including that of Manor Care. Manor Care challenged the proposed action and the

361matter was referred to the Division of Administrative Hearings (DOAH) where it

373was assigned DOAH Case No. 93-2562. The three parties to this proceeding were

386also parties to DOAH Case No. 93-2562. During the course of DOAH Case No. 93-

4012562, Manor Care asserted in a motion for summary recommended order that Arbor

414Health Care's application for the Sarasota project should be denied because

425Arbor Health Care did not include in its application information required by

437Section 408.037(2)(a), Florida Statutes, pertaining to applications for three

446separate projects that are unrelated to the Sarasota project. For each of these

459unrelated projects, a letter of intent had been issued which notified Arbor

471Health of the intent of AHCA to deny Arbor Health's application. For each of

485these unrelated projects, Arbor Health administratively challenged the proposed

494action by proceedings that were pending before the Division of Administrative

505Hearings at the time Arbor Health submitted its application for the Sarasota

517project. Manor Care asserted in DOAH Case No. 93-2562 that Arbor Health's

529failure to include these three projects (referred to as denied-but-in-litigation

539CON applications) in its listing of capital projects was fatal and required the

552summary dismissal or administrative withdrawal of Arbor Health's application for

562the Sarasota project. AHCA filed pleadings in DOAH Case No. 93-2562 by which it

576adopted the rationale asserted by Manor Care and joined in its motion for

589summary recommended order.

592On February 19, 1994, Arbor Health Care filed its petition with the

604Division of Administrative Hearings contending that the agency assertions

613pertaining to denied-but-in-litigation CON applications made in DOAH Case No.

62393-2562 are unpromulgated rules that violate the provisions of Section

633120.535(1), Florida Statutes, and are invalid exercises of delegated legislative

643authority within the meaning of Section 120.56, Florida Statutes.

652On March 10, 1994, AHCA filed a Motion to Dismiss the Petition. Arbor

665Health Care filed its response to the Motion to Dismiss on March 14, 1994, and a

681Supplemental Response on March 17, 1994.

687Manor Care's Petition to Intervene was filed on February 25, 1994, and was

700granted by Order dated March 14, 1994. On March 18, 1994, Manor Care filed a

715Motion to Dismiss the Petition. On the morning of the hearing, Arbor Health

728Care filed a Motion to Strike Manor Care's Motion to Dismiss on the grounds that

743it was not timely filed.

748The final hearing was conducted March 22, 1994. At the commencement of the

761hearing, the pending motions were denied without prejudice to the rights of the

774parties to raise the same issues in their post-hearing submittals. Arbor Health

786Care's Motion to Strike Manor Care's Motion to Dismiss filed on March 22, 1994,

800was rendered moot by that ruling.

806At the formal hearing, Arbor Health Care presented the testimony of

817Elizabeth Dudek, the chief of AHCA's CON section. Arbor Health Care offered

829seven exhibits, AHCA offered one exhibit and Manor Care offered four exhibits.

841All exhibits, except for Arbor Health Care's Exhibit 6, were accepted into

853evidence. Official recognition was taken of Chapters 120 and 408, Florida

864Statutes, and of Chapters 59C-1 and 60Q-2, Florida Administrative Code.

874A transcript of the proceedings has been filed. AHCA did not timely file a

888post-hearing submittal, but it did file a notice on April 27, 1994, that it was

903joining in the post-hearing submittal that was filed by Manor Care. Rulings on

916the proposed findings of fact submitted by Arbor Health Care and by Manor Care

930may be found in the Appendix to this Final Order.

940FINDINGS OF FACT

9431. Arbor Health Care is an owner, operator, and developer of nursing homes

956with a continuing presence in the State of Florida. Arbor Health Care has been

970a provider of nursing home care in Florida for over seven years and has been an

986active applicant for Certificates of Need (CON) for nursing home facilities in

998Florida. Arbor Health Care owns and operates seven nursing homes in the State

1011of Florida, and currently has under construction, or has a CON authorizing

1023construction of, additional nursing home facilities in the State of Florida.

1034Arbor Health Care currently has several applications for a CON for nursing home

1047beds pending before AHCA and is currently involved in administrative proceedings

1058before the Division of Administrative Hearings relating to the AHCA's notices of

1070intent to grant and/or deny various applications for a CON. Arbor Health Care

1083has been, and expects to continue to be, an active participant in the CON

1097application and review process for nursing home beds in the State of Florida.

11102. AHCA is the agency of the State of Florida charged with the duty to

1125implement and enforce the CON program in Florida.

11333. Manor Care owns and operates nursing homes and owns other health care

1146facilities in the State of Florida. Manor Care has filed numerous applications

1158for CONs related to provision of nursing home services in Florida, has several

1171outstanding applications, and is the recipient of notices of intent from AHCA to

1184approve and/or deny such applications. Manor Care has been, and expects to

1196continue to be, an active participant in the CON application and review process

1209for nursing home beds in the State of Florida.

12184. In December 1992 Arbor Health Care and Manor Care, along with other

1231providers, submitted competing applications for a CON to construct an 81-bed

1242nursing facility in Sarasota, Florida (the Sarasota project). AHCA

1251comparatively reviewed the applications and issued its State Agency Action

1261Report and its notice of intent to grant the application submitted by Arbor

1274Health Care and to deny all other applications, including the application

1285submitted by Manor Care.

12895. In April of 1993, Manor Care filed a formal challenge to the AHCA's

1303proposed denial of its application for the Sarasota project and to the proposed

1316intent to grant Arbor Health Care's application for that project. That

1327proceeding was referred to the Division of Administrative Hearings and assigned

1338DOAH Case No. 93-2562. Manor Care filed a motion for summary recommended order

1351in Case No. 93-2562 contending, in part, that Arbor Health Care's application

1363for the Sarasota project should be dismissed because Arbor Health Care failed to

1376comply with the provisions of Section 408.037(2)(a), Florida Statutes,

1385pertaining to the minimum content of an application for a CON.

13966. Section 408.037(2)(a), Florida Statutes, provides, in pertinent part,

1405that an application for a CON shall include the following:

1415(2) A statement of the financial resources

1422needed by and available to the applicant to

1430accomplish the proposed project. This

1435statement shall include:

1438(a) A complete listing of all capital

1445projects, including new health facility

1450development projects and health facility

1455acquisitions applied for, pending, approved,

1460or underway in any state at the time of the

1470application, regardless of whether or not

1476that state has a certificate-of-need program

1482or a capital expenditure review program

1488pursuant to section 112 of the Social Security

1496Act. The department may, by rule, require

1503less-detailed (sic) information from major

1508health care providers. The listing shall

1514include the applicant's actual or proposed

1520financial commitment to those projects and

1526an assessment of their impact on the

1533applicant's ability to provide the proposed

1539project.

15407. Manor Care argued in Case No. 93-2562 that Arbor Health Care's

1552application for the Sarasota project was deficient because it failed to include

1564three projects, referred to as denied-but-in-litigation CON applications, within

1573its listings of its capital projects. For each of these projects, Arbor Health

1586Care's application for a CON had been preliminarily denied by AHCA. As to each

1600project, Arbor Health Care had administratively challenged the denial in

1610proceedings that were pending and still in litigation before the Division of

1622Administrative Hearings at the time of Arbor Health Care's application for the

1634Sarasota project. Consequently, no final order had been entered as to any of

1647these three projects and whether Arbor Health Care would be issued a CON for one

1662or more of these three projects had not been resolved.

16728. On July 30, 1994, AHCA filed in DOAH Case No. 93-2562 a pleading

1686agreeing with and adopting that portion of Manor Care's motion to dismiss

1698grounded on Arbor Health Care's failure to include the three denied-but-in-

1709litigation CON applications within its capital projects listing.

17179. AHCA interprets the provisions of Section 408.037(2)(a), Florida

1726Statutes, as requiring that denied-but-in-litigation CON applications be

1734included within the applicant's capital projects listing. The position of AHCA

1745is that any application that fails to contain the minimum information required

1757by Section 408.037(2)(a), Florida Statutes, should be summarily dismissed or

1767administratively withdrawn. AHCA has maintained this interpretation of Section

1776408.037(2)(a), Florida Statutes, and has applied this interpretation to all

1786applications for a CON since the statute became effective in 1987.

179710. AHCA's statement that denied-but-in-litigation CON applications must

1805be included within an applicant's capital projects listing has never been

1816adopted as a rule.

182011. The term "capital project" is not defined in Chapter 408, Florida

1832Statutes. AHCA adopted what is now codified as Rule 59C-1.002(9), Florida

1843Administrative Code, effective January 31, 1991. That rule defines the term

"1854capital project" as follows:

"1858Capital project" means a project involving

1864one or more expenditures which has received

1871final approval via authorization to execute

1877for which capitalization will be required

1883under generally accepted accounting principles.

1888For the purpose of this definition, final

1895approval includes letters of intent to issue

1902a certificate of need issued by the agency.

191012. Also effective January 31, 1991, AHCA adopted what is now codified as

1923Rule 58C-1.008(5)(h), Florida Administrative Code, which requires that an

1932application for a CON contain listing of all capital projects ". . . as defined

1947in rule 59C-1.002(9)."

195013. Section 408.037(4), Florida Statutes, requires that a resolution from

1960the applicant's governing authority accompany each application for a CON for new

1972nursing home facilities in Florida. This resolution must contain certain

1982representations and commitments to the project for which application is made and

1994constitutes "authorization to execute" within the meaning of Rule 59C-1.002(9),

2004Florida Administrative Code. Section 408.037(4), Florida Statutes, provides as

2013follows:

2014(4) A certified copy of a resolution by the

2023board of directors of the applicant, or other

2031governing authority if not a corporation,

2037authorizing the filing of the application;

2043authorizing the applicant to incur the

2049expenditures necessary to accomplish the

2054proposed project; certifying that if issued a

2061certificate, the applicant shall accomplish

2066the proposed project within the time allowed

2073by law and at or below the cost contained in

2083the application; and certifying that the

2089applicant shall license and operate the facility.

209614. An application for a CON for a project involving capital expenditures

2108that contains the resolution required by Section 408.037(4), Florida Statutes,

"2118has received final approval via authorization to execute" within the meaning of

2130Rule 59C-1.002(9), Florida Administrative Code, and meets the definition of a

"2141capital project" contained in the first sentence of that rule.

215115. On March 11, 1994, AHCA caused to be published in the Florida

2164Administrative Weekly, Volume 20, Number 10, at pages 1434-35, a Notice of

2176Proposed Rule. The proposed rule would amend AHCA's existing Rule 59C-1.002(9),

2187Florida Administrative Code, to read:

2192(9) "Capital project" means a project

2198involving a capital expenditure, as defined

2204in subsection (8) of this rule, which the

2212applicant has approved via authorization to

2218execute. For projects subject to certificate

2224of need review, capital project also means a

2232project involving a capital expenditure for

2238which a letter of intent to grant a

2246certificate of need has been issued; or a

2254project involving a capital expenditure for

2260which a letter of intent to deny a

2268of need is in litigation, or could still be

2277certificate litigated within any remaining

2282part of the 21-day period provided by

2289s. 408.039(5)(a), F.S.

229216. The proposed rule incorporates the agency statement that denied-but-

2302in-litigation CON applications must be listed in the applicant's capital

2312projects listings and removes any doubt that applied-but-in-litigation CON

2321applications must be included in an applicant's capital projects listing.

233117. AHCA's position that Section 408.37(2)(a), Florida Statutes, requires

2340that denied-but-in-litigation CON applications be included in the capital

2349projects listing is merely an application of the plain language of the statute.

2362Each of the three applications for CONs referred to as denied-but-in-litigation

2373CON applications contains the commitment required by Section 408.037(4), Florida

2383Statutes. These three applications are clearly for CONs that have been applied

2395for and are pending within the meaning of Section 408.037(2)(a), Florida

2406Statutes.

240718. If an applicant fails to list denied-but-in-litigation CON

2416applications in its capital projects listings, it has failed to provide

2427information required by Section 408.037(2)(a), Florida Statutes.

243419. If an application for a CON is deemed incomplete and administratively

2446withdrawn prior to comparative review, the applicant no longer has that

2457application pending and cannot obtain a CON based on that application.

2468CONCLUSIONS OF LAW

247120. The Division of Administrative Hearings has jurisdiction over the

2481parties to and the subject matter of this proceeding. Sections 120.535 and

2493120.56, Florida Statutes.

249621. As an owner, operator, and developer of existing and proposed nursing

2508home facilities in the State of Florida, Arbor Health Care is substantially

2520affected by AHCA's statements pertaining to the required contents of

2530applications for CONs. Consequently, Arbor Health Care has the requisite

2540standing to bring this proceeding. Manor Care's assertion that Arbor Health

2551Care lacks standing because it has not as of yet suffered any adverse action as

2566a result of the challenged statements is rejected as being without merit. See,

2579Professional Firefighters of Florida, Inc. v. Department of Health and

2589Rehabilitative Services 396 So.2d 1194 (Fla. 1st DCA 1981). Likewise without

2600merit is Arbor Health Care's assertion that Manor Care lacks standing to

2612intervene in the challenge brought pursuant to Section 120.535, Florida

2622Statutes.

262322. As the challenger, the burden is upon the petitioner to demonstrate,

2635by a preponderance of the evidence, that the challenged agency assertions

2646constitute rules as defined by Section 120.52(16), Florida Statutes. See,

2656Section 120.535, Florida Statutes, Humana, Inc. v. Department of Health and

2667Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985), and Agrico Chemical

2679Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA

26911978).

269223. Section 120.52(16), Florida Statutes, defines the term "rule" as

2702follows:

2703(16) "Rule" means each agency statement of

2710general applicability that implements,

2714interprets, or prescribes law or policy or

2721describes the organization, procedure, or

2726practice requirements of an agency and

2732includes any form which imposes any

2738requirement or solicits information not

2743specifically required by statute or by an

2750existing rule. The term also includes the

2757amendment or repeal of a rule. . . .

276624. In St. Francis Hospital, Inc. v. Department of Health and

2777Rehabilitative Services, 553 So.2d 1351 (Fla. 1st DCA 1989), at page 1354, the

2790court stated:

2792We recognize that an agency interpretation of

2799a statute which simply reiterates the

2805legislature's statutory mandate and does not

2811place upon the statute an interpretation that

2818is not readily apparent from its literal

2825reading, nor in and of itself purport to

2833create rights, or require compliance, or to

2840otherwise have the direct and consistent

2846effect of the law, is not an unpromulgated

2854rule, and actions based upon such an

2861interpretation are permissible without

2865requiring an agency to go through rulemaking.

287225. The agency statement challenged in this proceeding that denied-but-in-

2882litigation CON applications must be included in the capital projects listing of

2894an application for a CON is not a rule as the term rule is defined by Section

2911120.52(16), Florida Statutes. The Petitioner has failed to establish that the

2922agency has asserted any requirement that is not apparent from an application or

2935reading of the statute. The proof is compelling that the agency's assertion in

2948the underlying case that instigated this petition was predicated on existing

2959statute and did not impose any requirement not contained within the existing

2971statute.

297226. Section 120.535, Florida Statutes, provides, in pertinent part, as

2982follows:

2983(1) Rulemaking is not a matter of agency

2991discretion. Each agency statement defined as

2997a rule under s. 120.52(16) shall be adopted

3005by the rulemaking procedure provided by s.

3012120.54 as soon as feasible and practicable to

3020the extent provided by this subsection . . .

3029* * *

3032(a) Rulemaking shall be presumed feasible

3038unless the agency proves that:

3043* * *

30463. The agency is currently using the

3053rulemaking procedure expeditiously and in

3058good faith to adopt rules which address the

3066statement.

3067* * *

3070(2)(a) Any person substantially affected by

3076an agency statement may seek an administrative

3083determination that the statement violates

3088subsection (1). . . .

3093* * *

3096(4) When a hearing officer determines that

3103all or part of an agency statement violates

3111subsection (1), the agency shall immediately

3117discontinue all reliance upon the statement

3123or any substantially similar statement as a

3130basis for agency action.

3134(5) Subsequent to a determination that an

3141agency statement violates subsection (1), if

3147an agency publishes, pursuant to s. 120.54(1),

3154proposed rules which address the statement and

3161proceeds expeditiously and in good faith to

3168adopt rules which address the statement, the

3175agency shall be permitted to rely upon the

3183statement or a substantially similar statement

3189as a basis for agency action. . . .

319827. Even if it were determined that the challenged statement is an

3210unpromulgated rule, AHCA established that it is currently using the rulemaking

3221process expeditiously and in good faith to adopt rules that incorporate the

3233challenged agency statement, which is all that is required by Section 120.535,

3245Florida Statutes.

324728. Section 120.56(1), Florida Statutes, provides as follows:

3255(1) Any person substantially affected by a

3262rule may seek an administrative determination

3268of the invalidity of the rule on the ground

3277that the rule is an invalid exercise of

3285delegated legislative authority.

328829. Section 120.52(8), Florida Statutes, defines the term "invalid

3297exercise of delegated legislative authority" as follows:

3304(8) "Invalid exercise of delegated legislative

3310authority" means action which goes beyond the

3317powers, functions, and duties delegated by the

3324Legislature. A proposed or existing rule is an

3332invalid exercise of delegated legislative

3337authority if any one or more of the following

3346apply:

3347(a) The agency has materially failed to

3354follow the applicable rulemaking procedures

3359set forth in s. 120.54;

3364(b) The agency has exceeded its grant of

3372rulemaking authority, citation to which is

3378required by s. 120.54(7);

3382(c) The rule enlarges, modifies, or

3388contravenes the specific provisions of law

3394implemented, citation to which is required by

3401s. 120.54(7);

3403(d) The rule is vague, fails to establish

3411adequate standards for agency decisions, or

3417vest unbridled discretion in the agency; or

3424(e) The rule is arbitrary or capricious.

343130. The challenge to the agency statement that denied-but-in-litigation

3440CON applications must be contained in an applicant's capital projects listing is

3452not a rule. Consequently, the challenge pursuant to Section 120.56, Florida

3463Statutes, must be denied. Even if the challenged statement were considered an

3475unpromulgated rule, any challenge thereto would be limited to the provisions of

3487Section 120.535, Florida Statutes, and not subject to challenge under Section

3498120.56, Florida Statutes, until promulgated as a rule. This is not to suggest

3511that the propriety of an agency's "unpromulgated rule" could not be tested in a

3525Section 120.57 hearing. See, Section 120.57(1)(b)15, Florida Statutes.

353331. AHCA, as the agency responsible for the administration of the CON

3545program in Florida, has the authority to administratively withdraw or to

3556otherwise reject an application for a CON that fails to provide information

3568required by statute. AHCA's assertion in DOAH Case No. 93-2562 that Arbor

3580Health Care's application for the CON for the Sarasota project should be

3592administratively withdrawn is not a rule as defined by Section 120.52(16),

3603Florida Statutes, and is not subject to challenge in this proceeding pursuant to

3616Section 120.535 or Section 120.56, Florida Statutes.

3623ORDER

3624Based on the foregoing Findings of Fact and Conclusions of Law, it is

3637ORDERED that Arbor Health Care's challenges pursuant to Section 120.535 and

3648120.56, Florida Statutes as set forth in its petition be, and the same hereby

3662are, DENIED.

3664DONE AND ORDERED this 3rd day of May, 1994, in Tallahassee, Leon County,

3677Florida.

3678___________________________________

3679CLAUDE B. ARRINGTON

3682Hearing Officer

3684Division of Administrative Hearings

3688The DeSoto Building

36911230 Apalachee Parkway

3694Tallahassee, Florida 32399-1550

3697(904) 488-9675

3699Filed with the Clerk of the

3705Division of Administrative Hearings

3709this 3rd day of May, 1994.

3715APPENDIX TO FINAL ORDER, CASE NO. 94-0889RU

3722The following rulings are made as to the proposed findings of fact submitted by

3736Petitioner, Arbor Health Care Company.

37411. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6,

37558, and 12 are adopted in material part by the Final Order.

37672. The proposed findings of fact in paragraph 7 are adopted in

3779part by the Final Order, but are rejected to the extent they

3791are contrary to the findings made and to the conclusions

3801reached.

38023. The proposed findings of fact in paragraph 9 are adopted in

3814part by the Final Order, but are rejected to the extent they

3826are unnecessary to the conclusions reached.

38324. The proposed findings of fact in paragraph 10 are rejected as

3844being unnecessary to the conclusions reached since it is

3853found that denied-but-in-litigation CON applications meet the

3860definition contained in the first sentence of the rule.

38695. The proposed findings of fact in paragraphs 11 and 16 are

3881rejected as being unnecessary to the conclusions reached.

38896. The proposed findings of fact in paragraphs 13 and 14 are

3901adopted in part by the Final Order or are subordinate to the

3913findings made.

39157. The proposed findings of fact in Paragraph 15 are rejected

3926for failure to comply with Rule 60Q-2.031(3), Florida

3934Administrative Code, and because the proposed findings are

3942unnecessary to the conclusions reached.

3947The following rulings are made on the proposed findings of fact submitted by

3960Intervenor, Manor Care of Boynton Beach, Inc., d/b/a Manor Care of Sarasota

3972County.

39731. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6,

398717, 21, and 22 are adopted in material part by the

3998Recommended Order.

40002. The proposed findings of fact in paragraphs 7, 8, 9, 10, and

401324 are rejected as being unnecessary to the conclusions

4022reached.

40233. The proposed findings of fact in paragraphs 11, 12, 13, 14,

403515, and 16 are treated as preliminary matters, but are

4045rejected as findings of fact because they are unnecessary to

4055the conclusions reached.

40584. The proposed findings of fact in paragraph 23, 25, 26, 27,

407028, 29, 30, 31, 32, 33, 34, 35, 36, and 37 are legal

4083arguments that are rejected as findings of fact, but they are

4094subordinate to the conclusions of law contained in the Final

4104Order.

4105COPIES FURNISHED:

4107Chris H. Bentley, Esquire

4111John L. Wharton, Esquire

4115Diane Demor, Esquire

4118Rose, Sundstrom & Bentley

41222548 Blairstone Pines Drive

4126Tallahassee, Florida 32301

4129Richard A. Patterson, Esquire

4133Agency For Health Care Administration

4138325 John Knox Road, Suite 301

4144Tallahassee, Florida 32303-4131

4147James C. Hauser, Esquire

4151Lauchlin Waldoch, Esquire

4154Messer, Vickers, Caparello, Madsen,

4158Lewis, Goldman, & Metz

4162215 South Monroe Street, Suite 701

4168Post Office Box 1876

4172Tallahassee, Florida 32301

4175Liz Cloud, Chief

4178Bureau of Administrative Code

4182The Elliot Building

4185Tallahassee, Florida 32399-0250

4188Carroll Webb, Executive Director

4192Administrative Procedures Committee

4195Holland Building, Room 120

4199Tallahassee, Florida 32399-1300

4202Sam Power, Agency Clerk

4206Agency for Health Care Administration

4211The Atrium, Suite 301

4215325 John Knox Road

4219Tallahassee, Florida 32303

4222Harold D. Lewis, General Counsel

4227Agency for Health Care Administration

4232The Atrium, Suite 301

4236325 John Knox Road

4240Tallahassee, Florida 32303

4243NOTICE OF RIGHT TO JUDICIAL REVIEW

4249A party who is adversely affected by this final order is entitled to judicial

4263review pursuant to Section 120.68, Florida Statutes. Review proceedings are

4273governed by the Florida Rules of Appellate Procedure. Such proceedings are

4284commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the

4300Division of Administrative Hearings and a second copy, accompanied by filing

4311fees prescribed by law, with the District Court of Appeal, First District, or

4324with the District Court of Appeal in the appellate district where the party

4337resides. The Notice of Appeal must be filed within 30 days of rendition of the

4352order to be reviewed.

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Date
Proceedings
Date: 02/07/1996
Proceedings: Record returned from First District Court filed.
Date: 09/22/1994
Proceedings: Index, Record, Certificate of Record sent out.
Date: 07/20/1994
Proceedings: Payment in the amount of $62.00 for indexing filed.
Date: 07/14/1994
Proceedings: Index & Statement of Service sent out.
Date: 06/07/1994
Proceedings: Letter to DOAH from DCA filed. DCA Case No. 1-94-1760.
Date: 06/02/1994
Proceedings: Certificate of Notice of Administrative Appeal sent out.
Date: 06/02/1994
Proceedings: Notice of Administrative Appeal filed.
PDF:
Date: 05/03/1994
Proceedings: DOAH Final Order
PDF:
Date: 05/03/1994
Proceedings: CASE CLOSED. Final Order sent out. Hearing held 3-22-94.
Date: 04/27/1994
Proceedings: (Respondent) Notice filed.
Date: 04/08/1994
Proceedings: Manor Care`s Proposed Final Order, Including Proposed Findings of Fact and Conclusions of Law filed.
Date: 04/08/1994
Proceedings: Arbor Health Care Company`s Proposed Final Order filed.
Date: 03/29/1994
Proceedings: Transcript w/cover ltr filed.
Date: 03/22/1994
Proceedings: Arbor Health Care Company's Motion to Strike Manor Care's Motion to Dismiss & exhibit-A filed.
Date: 03/22/1994
Proceedings: (joint) Prehearing Stipulation filed.
Date: 03/21/1994
Proceedings: Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County's Notice of Hearing filed.
Date: 03/21/1994
Proceedings: Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County's Notice of Hearing filed.
Date: 03/18/1994
Proceedings: Letter to WJK from Richard A. Patterson (re: parties dispensing w/the prefiled direct expert testimony requirement) filed.
Date: 03/18/1994
Proceedings: Manor Care's Motion to Dismiss w/Exhibit-A filed.
Date: 03/17/1994
Proceedings: Supplement to Arbor Health Care Company's Response to Motion to Dismiss Petition filed.
Date: 03/16/1994
Proceedings: Arbor Health Care Health Care Company's Response to Intervenor's First Request for Production of Documents; Notice of Service of Answers toManor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County's First Interrogatorie s; Notice of Taking Depo
Date: 03/16/1994
Proceedings: Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County's Notice of Service of Answers to Arbor Health Care Company's First Set of Interrogatories; Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County's Response to First Reque
Date: 03/15/1994
Proceedings: (Petitioner) Motion to Reopen the Record for the Receipt of Newly Discovery Evidence and Motion to Extend Time for Filing Post-Hearing Submissions filed.
Date: 03/14/1994
Proceedings: Order Granting Intervention sent out (Intervenor: Manor Care of Boynton Beach, Inc., d/b/a Manor Care-Sarasota County)
Date: 03/14/1994
Proceedings: Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County's Notice of Cancellation of Hearing filed.
Date: 03/14/1994
Proceedings: Arbor Health Care Company`s Response to Motion to Dismiss Petition filed.
Date: 03/11/1994
Proceedings: Manor Care of Boynton Beach, Inc. d/b/a Manor Care-Sarasota County`s Notice of Hearing filed.
Date: 03/11/1994
Proceedings: (Intervenor) Manor Care's Motion to Expedited Discovery filed.
Date: 03/10/1994
Proceedings: Intervenor's First Request for Production of Documents to Arbor Health Care Company; Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County's Notice of Taking Deposition Duces Tecum filed.
Date: 03/10/1994
Proceedings: Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County`s Certificate of Service of First Interrogatories to Arbor Health Care Company; Manor Care of Boynton Beach, Inc. d/b/a Manor Care - Sarasota County`s First Interrogatories to Arbor Heal
Date: 03/10/1994
Proceedings: (Petitioner) Notice of Service of Interrogatories filed.
Date: 03/10/1994
Proceedings: Arbor Health Care Company's First Request for Production of Documentsto Manor Care of Boynton Beach, Inc. filed.
Date: 03/10/1994
Proceedings: (Respondent) Motion to Dismiss Petition for an Administrative Determination of A Violation of Section 120. 535 and A Determination That the Challenged "Rule" Constitutes and Invalid filed.
Date: 03/09/1994
Proceedings: Order Granting Motion to Re-set Hearing sent out (Hearing reset for 3/22/94; 10:00am)
Date: 03/07/1994
Proceedings: (Respondent) Notice of Appearance filed.
Date: 03/07/1994
Proceedings: (Respondent) Motion to Re-Set Hearing filed.
Date: 02/25/1994
Proceedings: Manor Care's Petition to Intervene filed.
Date: 02/22/1994
Proceedings: Order of Assignment sent out.
Date: 02/22/1994
Proceedings: Letter to L. Cloud from JY sent out.
Date: 02/22/1994
Proceedings: Notice of Hearing sent out. (hearing set for 3/21/94; 10:00am; Talla)
Date: 02/22/1994
Proceedings: Prehearing Order sent out.
Date: 02/18/1994
Proceedings: Petition for Administrative Determination of a Violation of Section 120.535 and a Determination that the Challenged "Rule" Constitutes an Invalid Exercise of Delegated Legislative Authority filed.

Case Information

Judge:
CLAUDE B. ARRINGTON
Date Filed:
02/18/1994
Date Assignment:
03/18/1994
Last Docket Entry:
02/07/1996
Location:
Tallahassee, Florida
District:
Northern
Agency:
Agency for Health Care Administration
Suffix:
RU
 

Related DOAH Cases(s) (2):

Related Florida Statute(s) (7):

Related Florida Rule(s) (2):