STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT ANTHONY SAVONA, D.O.; ) JOHN F. HULL, D.O.; )

ROBERT L. KAGAN, M.D.; and ) FLORIDA MEDICAL ASSOCIATION, INC., )

)

Petitioners, )

)

vs. ) Case No. 98-5072F

)

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal administrative hearing was held in the above-styled cause on February 11, 1999, in Tallahassee, Florida, before Don W. Davis, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioners: David K. Miller, Esquire

Broad and Cassel Suite 400

215 South Monroe Street Tallahassee, Florida 32302

For Respondent: Gordon B. Scott, Esquire

William Roberts, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

What amount should be awarded Petitioners as attorney's fees and costs in the underlying case in this matter, Savona et al. v.

AHCA, Case No. 97-5909RU (DOAH Amended Final Order On Remand issued November 6, 1998).

PRELIMINARY STATEMENT

By Petition For Award Of Costs And Attorney’s Fees, dated November 13, 1998, Petitioners seek reimbursement for fees and costs associated with their challenge to Respondent's non- promulgated rule policy.

At the final hearing, Petitioners presented testimony of two witnesses and ten exhibits. Respondent presented testimony of one witness and two exhibits.

A transcript of the final hearing was filed on February 18, 1999. Petitioners timely filed a Proposed Final Order which has been reviewed and utilized, as deemed appropriate, in the preparation of this Final Order.

FINDINGS OF FACT

1. Petitioners challenged a non-rule statement and policy of Respondent which limited physicians' Medicare cost-sharing reimbursement to the rate for Medicaid.

2. Petitioners submitted an itemized statement of the requested hours, a summary of hours by stages of the case, and a summary of total hours, rates, and expenses requested. The hours and rates are supported by the testimony of Petitioners' counsel, David K. Miller, and corroborated by testimony of Attorney Samatha Boge and Attorney Nancy Linnan. An affidavit of Attorney

   Barry Richard in a related case adds further corroboration to hourly rates submitted by Petitioners' counsel.

3. Respondent did not present independent evidence concerning proper number of hours, rates or expenses. Respondent did challenge some portions of the hours claimed by Petitioners' counsel and opposed the claim for fees and costs in its entirety.

4. As established by testimony of David K. Miller, Samantha Boge, and Nancy Linnan, all attorneys licensed and practicing in Florida, the time spent by Petitioners’ attorneys in the initial proceeding and their hourly rates were reasonable. Further corroboration of testimony regarding hourly rates was presented by an affidavit from Barry Richard, an attorney in a related case.

5. Petitioners have revised the number of hours properly allocated to this case and reduced same by 1.9 hours from hours allocated to M. Stephen Turner, one of the Petitioners’ attorneys.

6. Respondent also challenges 3.9 hours charged by Petitioners' attorneys for monitoring of legislation, specifically senate bill 384, amending the law governing Petitioners rights to payment on crossover claims. The claim of counsel for Petitioners that this 3.9 hours (performed by Attorney Jody Chase) is relevant to proceedings in the underlying action, is not credited and these hours are also deducted from Petitioners’ claim for fees and costs.

7. Petitioners request as adjusted is summarized as follows:

   M. Stephen Turner	73.7	hours@ $300/hr.=	$22,110.00
   David K. Miller	240.4	hours@ $225/hr.=	54,090.00
   	15.0	hours@ $225/hr.=	3,375.00
   Other Partners	.10	hours@ $225/hr.=	22.50
   Associate	.3	hours@ $175/hr.=	52.50
   Paralegals	2.4	hours@ $ 75/hr.=	$180.00
   Fees			$79,830.00
   Expenses			2,280.00
   Total			$82,110.00

   
   

8. As modified above, the hours and rates requested are found to be reasonable in view of the novelty and complexity of issues, level of legal skills required, and the amount potentially at stake to Petitioners. Particularly, the amount awarded is justified in view of customary amounts charged or awarded for comparable services. The requested expense reimbursement is also reasonable. The expenses are of the kind typically billed to clients in addition to the hourly rate charged.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.595(4), Florida Statutes.

10. As reaffirmed in Standard Guar. Ins. Co. v. Quanstrom,

    
    

    555 So.2d 828 (Fla. 1990), the starting point for determining the award to be made in cases such as this one is the lodestar approach, based on the number of hours reasonably expended times a reasonable hourly rate. Under the factors adopted in Quanstorm, requested hours and rates, as modified, are reasonable and proper.

11. Respondent argues that award of fees for Petitioners’ appeal, which was taken in the course of prevailing in this case, is not appropriate. Respondent’s argument is not persuasive.

The appellate court’s ruling in favor of Petitioners, while not granting fees and costs, did not exclude such reimbursement pursuant to Section 120.595(4), Florida Statutes, upon conclusion of all proceedings. Such fees and costs are concluded to have been reasonable and have been included in the total award, in addition to fees and costs for bringing this proceeding.

ORDER

Based on the foregoing, it is hereby ordered that Petitioners shall recover from Respondent the sum of $82,110 for attorney fees and costs incurred in this matter.

DONE AND ORDERED this 16th day of March, 1999, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1999.

COPIES FURNISHED:

Gordon B. Scott, Esquire

Williams Roberts, Esquire Agency for Health

Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

David K. Miller, Esquire Broad and Cassel

Post Office Box 1300 Tallahassee, Florida 32302

Sam Power, Agency Clerk Agency for Health

Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director Agency for Health

Care Administration Building 3, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Paul J. Martin, General Counsel Agency for Health

Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO APPEAL

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 Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of the 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.

Docket for Case No: 98-005072F

Orders for Case No: 98-005072F