STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AVANTE, INC., d/b/a, AVANTE ) AT INVERNESS, AVANTE VILLA AT ) JACKSONVILLE BEACH, AVANTE AT ) BOCA RATON, AVANTE AT LEESBURG, ) and AVANTE AT LAKE WORTH, )

)

Petitioner, )

)

vs. ) Case No. 99-0258

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

SUPPLEMENTAL RECOMMENDED ORDER ON REMAND

A Recommended Order was entered in this case on December 23, 1999. On or about May 12, 2000, Respondent remanded this case by Order of Remand for the limited purpose of providing "a conclusion on whether the facts established by [Petitioner] are sufficient to invoke the doctrine of 'equitable tolling.'" In response to the Order of Remand an Order Reopening File on Remand was entered May 22, 2000, reopening the file of the Division of Administrative Hearings.

It was noted in the Order Reopening File on Remand that Petitioner had filed a Motion for Entry of Amended Order in response to the Order of Remand in which it had addressed the issue for which Respondent had remanded this case. Petitioner also filed a copy of exceptions to the Recommended Order which had been filed by Respondent and Petitioner's response thereto.

Therefore, Respondent was given until June 5, 2000, to file a pleading addressing the issue for which this case had been reopened. On June 5, 2000, Respondent filed Agency Response to Order Re-Opening File on Remand.

After consideration of the responses of the parties to the Order Reopening File on Remand and the file in this case, the question posed by Respondent on remand is answered in the affirmative and the following amendments are hereby added to the Recommended Order entered in this case:

1. Paragraph 48 is amended to read:

   
   

   48. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 249 (Fla. 1st DCA 1977). Avante is asserting in this proceeding that the doctrine of equitable tolling should be applied in this case to excuse Avante's failure to timely file the Petition it filed with the Agency. The burden of proof in this proceeding was, therefore, on Avante.

2. Paragraph 49 is amended to read:

   
   

   49. The doctrine of equitable tolling has been approved by the Supreme Court of Florida in Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988). The Court ruled that the doctrine may be applied to "permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period." Id. at 1133-34. The Court addressed the circumstances when the doctrine may be applied: "when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum." [Emphasis added]. Id. at 1133-34. In applying the doctrine, the emphasis is on "the plaintiff's excusable

   ignorance of the limitations period and on [the] lack of prejudice to the defendant." Id. at 1134 (quoting from Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981), quoted in Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987).

   
   

3. Paragraph 54 is amended to read:

   
   

   54. As in Plotkin and Marshall Davis, Ms. Beloat, contrary to her duties and responsibilities, failed to keep Avante informed of the audit results, in particular the Notice Letters. While the Courts in Plotkin and Marshall Davis used the terms "excusable neglect" rather than "equitable tolling," it is clear that the Courts considered the actions of the employees in those cases to constitute the type of "extraordinary" circumstances which the Court in Machules considered necessary to apply the doctrine of equitable tolling. As a consequence, it is concluded that Ms. Beloat's actions justify the application of the doctrine of equitable tolling in this case to Avante's failure to respond timely to the Notice Letters.

4. Paragraph 58 is amended to read:

   
   

   58. Based upon the foregoing, it is concluded that the doctrine of equitable tolling as approved by the Supreme Court in Machules applies in this case.

   
   

5. Finally, the recommendation contained in the Recommended Order is amended to read as follows:

RECOMMENDED that a final order be entered by the Agency for Health Care Administration finding that the doctrine of equitable tolling applies and accepting the Petition for Formal Hearing filed by Avante, Inc.

DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

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 13th day of June, 2000.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building III Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building III Tallahassee, Florida 32308

Samuel J. Morley, Esquire Susan L. Turner, Esquire Holland & Knight, LLP Post Office Box 810

Tallahassee, Florida 32302-0810

Steven A. Grigas, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building III Tallahassee, Florida 32308

Docket for Case No: 99-000258

Orders for Case No: 99-000258