pore: STATE OF FLORIDA FE AGENCY FOR HEALTH CARE ADMINISTRATIGN: 1) «6 RENDITION NO. ¢ i) \ 3 vay PLANTATION GENERAL HOSPITAL LIMITED PARTNERSHIP d/b/a BL BS PLANTATION GENERAL HOSPITAL, et.al, w : z Petitioners, DOAH CASE NOS. 03-1868 — 03-1880: 03- 1885 — 03-1890; 03-1892 Vv. 03-1909; 03-1918 — 03-1919; 03-1928 — 03- 1935; 03-2681; 03-2981 -— 03-2991; 03- 2993; 03-3465 — 03 STATE OF FLORIDA, AGENCY FOR 3467; 03-3971; 03-3974; 04-1555, HEALTH CARE ADMINISTRATION, 04-1557 — 04-1559; 04-1562; 04-1564; 04- 1580 - 04-1584; and 04- Respondent. 1882 / FINAL ORDER This cause was referred to the Division of Administrative Hearings and assigned to an Administrative Law Judge (ALJ) for a formal administrative hearing and the entry of a Recommended Order. The Recommended Order of May 23, 2005, is attached to this Final Order and incorporated herein by reference, except where noted infra. RULING ON EXCEPTIONS Petitioners filed exceptions to which the Agency filed a response. The Agency filed exceptions to which the Petitioners filed a response. However, the parties filed a Stipulation that has rendered the Agency’s exceptions. moot. Stipulation The parties filed a Stipulation agreeing that there were two scrivener’s errors in the Recommended Order that needed to. be corrected. . The first scrivener’s error was in Paragraph 92 of the Recommended Order. The parties stated that the dates listed in the first sentence of Paragraph 92. should be “June 30, May. 31, or April 30”. instead of “May. 31, June 30, and July 31.” The parties’ stipulation as to this scrivener’s error is duly. noted and incorporated as part of the Final Order entered in this case. The second scrivener’s error. noted by the parties is in Paragraphs 2 and 3. of the “Recommendation” section of the Recommended Order, wherein the ALJ made references to “Exhibit 14.” . The parties stated that these paragraphs should have made references to “Exhibit 13”. instead. . The parties’ stipulation is duly. noted and incorporated as part of the Final Order entered in this case. Petitioners’ Exceptions In Exception Number One, Petitioners took exception to the Preliminary Statement, Page 16, at the first full paragraph, second sentence, arguing the ALJ made an erroneous ruling by excluding the deposition and affidavit of Sarah Fitzgerald... Petitioners’ argument is, in essence, asking the Agency. to rule on an evidentiary issue that is outside the scope of the Agency’s authority. See Barfield _v. Department of Health, 805 So.2d 1008 (Fla. 1 DCA 2001). Therefore, Petitioners’ Exception Number. One is denied. In Exception Number Two, the Petitioners took exception to the findings of fact in Paragraph 19, of the Recommended Order, wherein the ALJ found “Section-395.701 (2), Florida Statutes (2004), provides that the Bureau of F & A [Finance & Accounting] is to certify the amount of a hospital’s PMATF assessment....” The Petitioners argued the statutory section referred to by the ALJ does not refer to the Bureau of F & A, but to the Agency in general. Section 395.701(2), Florida Statutes (2004), states “[w]ithin 6 months after the end of each hospital fiscal year, the agency shall certify the amount of the assessment for each hospital.”. (Emphasis added.) Rule 59E — 5.605, Florida Administrative Code, requires the Bureau of Health Facility Regulation to certify the amount of the PMATF assessment to the Bureau of Finance and Accounting. . To the extent that the ALJ’s findings could be construed as a misreading of the statute and rules, Petitioner’s Exception Number Two is granted and Paragraph 19 is changed to state 19. Section 395.701(2), Florida Statutes (2004), provides that the Agency. is to certify the amount of a hospital’s PMATF assessment “[w]ithin 6 months after the end of each hospital fiscal year...” and, therefore, it is contemplated that the calculation by. the Agency of the PMATF assessment will be accomplished within the same period of time. In Exception Number Three, the Petitioners took exception to. the words “of hospitals and...” in the first sentence of Paragraph 24 of the Recommended Order, as well as the last sentence of Paragraph 24 of the Recommended Order, arguing they were not based on competent substantial evidence. In support of this exception, Petitioners cite to evidence that was excluded by the ALJ, and thus could not be considered by the Agency. See Barfield. Additionally, the ALJ's findings were based. on competent substantial evidence. See Transcript, Volume 2, Pages 94-95... Therefore, Petitioners’. Exception Number. Three is denied. In Exception Number Four, Petitioners took exception to the second sentence of Paragraph 25 of the Recommended Order, arguing the language was misleading and unsupported on this record. Petitioners argue the record supports the fact that the extensions are most frequently granted for 30 days. In support of this argument, they cite to the Transcript, Volume 2, and Pages 94-95. . However, that portion of the transcript states “most hospitals give [sic] an extension to that due date, so it’s usually five months or so.” (Emphasis added.) . There is no. record evidence to support Petitioners’. argument that the extensions are for a definite 30-day time period... Therefore, Petitioners’, Exception Number Four is denied. In Exception Number Five, Petitioners took exception to Subparagraph C of Paragraph 31. of the Recommended Order, arguing the use of the words “and other incomes” is incorrect and not supported by competent substantial record evidence. Indeed, the record evidence supports Petitioners’ argument. See Transcript, Volume 2, Page 94... Therefore, Petitioners’ exception to Paragraph 31 is granted and Subsection C of Paragraph 31 is changed to state c. The assessable basis for the PMATF assessment: annual. net operating revenue (inpatient, outpatient, and other operating revenue) In Exception Number Six, Petitioners took exception to the findings of fact in Paragraph 32 of the Recommended Order, arguing the findings were incorrect as a matter of law and not based on competent substantial evidence. However, Petitioners’. argument goes far beyond the scope of Paragraph 32... For. instance, Petitioners argue the Recommended Order’s use of the “Imposition Methodology”. was contrary to law and not supported by. the evidence. Nowhere in Paragraph 32 of the Recommended Order does that phrase appear. Petitioners also argue that the finding of fact was flawed in looking only to the language appearing in Section 395.701, Florida aragraph 32 of the Recommended Order does it say that the intent of the statute was determined based solely on the language of the statute. Petitioners are making broad and vague arguments that are mapplicable to Paragraph 32 of the Recommended Order. In addition, the findings of fact in Paragraph 32 of the Recommended Order were based on competent substantial evidence. See Transcript, Volume 4, Pages 339-341. Therefore, Petitioners’ Exception Number Six is denied. In Exception Number Seven, Petitioners took exception to the findings of fact in Paragraph 34 of the Recommended Order, arguing they were incomplete and not based on competent substantial evidence. . Specifically, Petitioners took exception to. the words “relevant to. the proceeding...”,. arguing the AL] should have also included Sections 20 and 21. of Chapter 2000-256, Laws of Florida within the paragraph as weil, even though they are referenced later in the Recommended Order. Petitioners made no showing the findings were not based. on competent substantial evidence. Furthermore, the quoted sections were entered into evidence by the ALJ and made a part of the record. See Petitioners’. Exhibit 13.. Thus, the Agency. cannot overturn the findings of fact in Paragraph 34. See generally Section 120.57(1)(J), Fla. Stat. (providing in pertinent part that “[t]he agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record . . . that the findings of fact were not based upon competent substantial evidence”); Heifetz v. Department_of Bus. Regulation, 475: So.2d 1277, 1281. (Fla.. 1985). (holding that an agency. “may. not reject the hearing officer’s finding [of fact] unless there is no competent, substantial evidence from which the finding could reasonably. be inferred”)... Therefore, Petitioners’. Exception Number Seven is denied. In Exception Number Eight, Petitioners took exception to the first line of Paragraph 35 of the Recommended” Order, argiiitig it was not supported-by ~competent~substantial evidence. Specifically, Petitioners argued that, by restricting itself to reviewing only part of the Legislative enactment and not including Sections 20 and 21 of Chapter 2000-256, Laws of Florida, the finding made the act appear not to be revenue neutral, which was contradictory to the legislative intent and not supported by competent substantial evidence. However, the findings in Paragraph 35 were based on competent substantial evidence because, as the ALJ found, Chapter 2000-256, Laws of Florida, made only the changes listed in Paragraph 35 to the Public Medical Assistance Trust Fund (PMATF). Sections 20 and 21 related to appropriating funds to the Agency to implement the changes to Section 395.701, Florida Statutes, but were not changes to the statute itself, See Petitioners’ Exhibit 13.. Therefore, Petitioners’ Exception Number Eight is denied. In Exception Number Nine, Petitioners took exception to Paragraph 37 of the Recommended Order in its entirety, arguing it was not based on competent substantial evidence. However, Petitioners’ arguments are again outside the scope of the findings in Paragraph 37. ‘The ALJ correctly found that, based on the record evidence, the Legislature did not make any changes or discuss when it intended for a PMATF assessment to be imposed. See Respondent’s Exhibits 5, 6, and 7; and Transcript, Volume 4, Pages 369-370. . Therefore, Petitioners’ Exception Number Nine is denied. In Exception Number Ten, Petitioners took exception to the phrase “the other PMATF changes...” in line six of Paragraph 40 of the Recommended Order, arguing it was not supported by competent substantial evidence. Petitioners also took exception to the last clause of Paragraph 42 of the Recommended Order for the same reasons. However, Petitioners offered no record evidence to support their exception to these findings. The Agency can only overturn a finding of fact if it was not based on competent substantial evidence. See Section 120.57(1)(2), Fla. Stat.; Heifetz. The findings in Paragraphs 40 and 42 of the Recommended Order were based on competent substantial evidence. See Transcript, Volume 2, Pages 106-108; Transcript, Volume 4, Pages 371-373; and Petitioners’. Exhibit 13. . Therefore, Petitioners’. Exception Number Ten is denied. In Exception Number Eleven, Petitioners took exception to the fact that Petitioners’ proposed finding of fact no. 12 was incorporated into the Recommended Order pursuant to Endnote 14, but did not actually appear in the Recommended Order. Petitioners cite no legal basis for this exception. Therefore, the Agency need not rule on it. See Section 120.57(1)(k), Florida Statutes (2004). In Exception Number Twelve, the Petitioners took exception to the findings of fact in Paragraph 45 of the Recommended Order, arguing they were incomplete and not based on competent substantial evidence. Specifically, Petitioners argue the words “on outpatient revenues” should be added to the first sentence of the paragraph, and the words “on net operating revenue for. outpatient services” should be added to the second sentence of the paragraph. Petitioners cite no legal basis for this exception. See Section 120.57(1)(k), Florida Statutes (2004). Furthermore, the findings of fact in Paragraph 45 of the Recommended Order were based on competent substantial evidence. See Transcript, Volume 2, Pages 128-129; and Petitioners’. Exhibits 15 and 16. . Thus, the Agency. cannot modify. the findings of fact in Paragraph 45. of the Recommended Order. in accord with the Petitioners’. wishes. . See Section 120.57(1)(2), Fla. Stat.; Heifetz.. Therefore, Petitioners’. Exception Number Twelve is denied. In Exception Number. Thirteen, Petitioners took exception to the phrase “...before it could do so” at the end of Paragraph 51. of the Recommended. Order, arguing it was not based on competent substantial evidence. Specifically, Petitioners argued there was no record evidence presented showing that the Agency could not have taken steps to implement the rate reductions contained in Chapter 2000-256, Laws of Florida, prior to its having changed its position regarding what the act meant. Petitioners are correct in their assertion that there was no record evidence to support the phrase “...before it could do so”. at the end of Paragraph 51 of the Recommended Order. The record evidence shows the statute changed on July 1, 2000, and the Agency did not immediately take any steps to implement the changes to the statute. See Transcript, Volume 4, Pages 334-335, 351. and 377... Therefore, Petitioners’ Exception Number. Thirteen is granted and the phrase. “...before it could do. so” is stricken from the last sentence of Paragraph 51 of the Recommended Order. In Exception Number Fourteen, Petitioners took exception to the phrase “...because of the lack of available PMATF funds...” in Paragraph 62 of the Recommended Order, arguing it ‘was not supported by competent substantial evidence. However, there was competent substantial evidence to. support the ALJ’s findings in Paragraph 62 of the Recommended Order. . See Transcript, Volume 2, Pages 114-115; and Transcript, Volume 4, Pages 379-381. Therefore, Petitioners’. Exception Number Fourteen is denied. In Exception Number Fifteen, Petitioners took exception to the finding of fact in Paragraph 68 of the Recommended Order, arguing it was incomplete and not based on competent substantial evidence. Petitioners argue that a clarifying clause should be added to the end of the paragraph in order to make it consistent with the record evidence of the case. However, Petitioners offer no legal basis for this exception. See Section 120.57(1)(k), Florida Statutes (2004). Furthermore, the finding of fact in Paragraph 68 of the Recommended Order was based on competent substantial evidence. See, ¢.g., Transcript Volume 4, Pages 343-344; and Petitioners’ Exhibit 13... Therefore, Petitioners’ Exception Number Fifteen is denied. In Exception Number” Sixteen,» Petitioners’ took~exception-to ~the first sentence of Paragraph 70 of the Recommended Order, arguing it was not supported by competent substantial evidence since it misstated the Petitioners’ position in these cases. .However, the finding of fact in Paragraph 70 was based on competent substantial evidence. See Transcript, Volume 2, Pages 108, 145, 155-156 and 165; and Transcript, Volume 3, Pages 226-227... Therefore, Petitioners’ Exception Number Sixteen is denied. In Exception Number Seventeen, Petitioners took exception to the first sentence of Paragraph 71 of the Recommended Order, arguing that, as worded, it was incomplete and not based on competent substantial evidence. However, the finding of fact in Paragraph 71 of the Recommended Order was based on competent substantial evidence. See, ¢.g., Transcript, Volume 2, Pages 125 and 128-130, Furthermore, the “addition” Petitioners requested in order to make the finding of fact “complete” is contained within Paragraph 71 of the Recommended Order in the direct quotation from Petitioners’ Additional Written Argument. Therefore, Petitioners’ Exception Number Seventeen is denied. In Exception Number Eighteen, Petitioners took exception to Paragraph 73 of the Recommended Order, arguing it was incomplete and not based on competent substantial evidence. Petitioners also took exception to the Recommended Order in general; arguing additional findings of fact should have been made by the ALJ regarding the extrinsic facts the Petitioners argued supported their interpretation as to how the reduced rate should have been applied. First, in regards to Petitioners’ exception to Paragraph 73 of the Recommended Order, Petitioners did not put forth a legal basis for the exception. See Section 120.57(1)(k), Florida Statutes (2004). Furthermore, the ALJ’s findings in Paragraph 73 were based on competent substantial evidence. See Transcript, Volume 2, Pages 156-165 and 176-179; and Transcript, Volume 3, Pages 184-198 and 201-204:-Second;-in-regards-to Petitioners’ general-exception to the Recommended Order, the Petitioners do not clearly identify which portions of the Recommended Order they dispute. Section 120.57(1)(k), Florida Statutes (2004), states “an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Additionally,. Petitioners’ reliance upon Memorial Healthcare Group, Inc. v. Agency for Health Care Administration, 879 So.2d 72 (Fla. 1 DCA 2004) is misplaced. The Memorial case addressed the failure of an ALJ to make findings of fact that supported the legal conclusion that a hospital lacked standing to challenge the approval of a certificate of need application. Here, Petitioners made no showing that the ALJ failed to make any findings of fact that supported the legal conclusions he reached... Further, the “extrinsic facts” the Petitioners argue the ALJ failed to make findings about were addressed by the ALJ in Paragraph 80 of the Recommended Order where he found them to irrelevant to. the legal issues of the case. Therefore, Petitioners’. Exception Number Eighteen is denied. In Exception Number Nineteen, Petitioners took exception to Paragraph 80 of the Recommended Order, arguing that it was not based on competent substantial evidence and, in fact, ignored “a mountain of competent, substantial evidence in the record of this case.”.. In making this exception, the Petitioners cited to evidence that the ALJ excluded from the record, arguing the ALJ erred in excluding this evidence. By making this argument, Petitioners are again asking the Agency to rule on evidentiary issues that are outside the scope of the Agency’s authority. See Barfield... Further, the record evidence in this case supports the ALJ’s findings. See Respondent’s Exhibit 7... Additionally, assuming arguendo, as the Petitioners offered, Paragraph 80 was a conclision of law; the ALJ’ s“coiclusion was based’on’a proper reading of the statute (See Miele v. Prudential-Bache Securities, 656 So.2d 470 (Fla. 1995); and City of Tampa v. Thatcher Glass Corp., 445 So.2d 578 (Fla. 1984)), and the Agency could not substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(), Fla. Stat. Therefore, Petitioners’ Exception Number Nineteen is denied. 10 In Exception Number Twenty, Petitioners took exception to Paragraph 81 of the Recommended Order, arguing that it was not based on competent substantial evidence and that it was a conclusion of law. However, Paragraph 81 of the Recommended Order was based on competent substantial evidence. See Transcript, Volume 2, Pages 155-156; and Respondent’s Exhibit 7. Moreover, even if Paragraph 81 was a conclusion of law, the Agency could not substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(), Fla. Stat. Therefore, Petitioners’. Exception Number Twenty. is denied. In Exception Number Twenty-One, Petitioners took exception to Paragraph 82 of the Recommended Order on the basis that it is a conclusion of law rather than a finding of fact. However, Petitioners failed to state a legal basis for their exception. See Section 120.57(1)(k), Florida Statutes (2004)... Therefore, the Agency. need not rule on Petitioners’. Exception Number Twenty-One. In Exception Numbers Twenty-Two and Twenty-Three, Petitioners took exception to Paragraph 83 of the Recommended Order. Petitioners first argued the phrase “Based upon the language of Section 395.701, Florida Statutes (2000), read as a whole, it is clear that...” was not based on competent substantial evidence and that the ALJ inappropriately limited his determination of legislative intent to only the language appearing in Section 395.701, Florida ~ Statutes, while ignoring the language of the act anid other record-evidence>~Petitioners also disagreed with the first sentence of Paragraph 83, to. the extent that it found that the “imposition method” is a reflection of clear. legislative intent, arguing it was not supported by. competent substantial evidence. Further, Petitioners argued the third sentence of Paragraph 83 was not supported by competent substantial evidence, stating there were three conditions that had to take place before the PMATF assessment could be imposed. Lastly, Petitioners took exception to 11 Paragraph 83 on the grounds that it was actually a conclusion of law. Contrary. to Petitioners’ argument, Paragraph 83 was based on record evidence, namely. Petitioners’. Exhibit 13, which was accepted into evidence by the ALJ and made a part of the record. Assuming, arguendo, Paragraph 83 was indeed a conclusion of law, the ALJ made a reasonable interpretation of when the assessment was to be imposed based on legislative intent derived from looking to the language of the statute. See Miele; and Thatcher Glass Corp. If this is indeed a conclusion of law, the Agency finds that, while it does have substantive jurisdiction over this area, it could not substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(D), Fla. Stat. Along the same line, with regard to how many conditions had to occur before the assessment was imposed, the ALJ was correct in his determination that only one condition had to occur before the PMATF assessment could be imposed, namely that a hospital must have an “annual net operating revenue” based on the “actual experience of the hospital.” This finding is based on a common sense reading of the statute. Ifa hospital does not have an annual net operating revenue, a PMATF assessment cannot be imposed... Petitioners’ argument that there are three conditions precedent to the imposition of a PMATF assessment (a hospital having an annual net operating revenue, reporting it to the Agency, and the Agency certifying the assessment). is not accurate as the latter two. “conditions” are in reality. procedural steps, not conditions precedent to. imposition of the assessment.” Therefore, “Petitioners” ~Exception Numbers Twenty-Two and Twenty-Three are denied. In Exception Number Twenty-Four, Petitioners took exception to Paragraph 84 of the Recommended Order, insofar as it referred to “the condition”, and reflected the choice of the imposition method rather than the invoice method. Petitioners also argued Paragraph 84 was incomplete and not supported by competent substantial evidence as the record evidence established that there was more than one condition for the imposition of the PMATF assessment. In response to Petitioners’ argument that Paragraph 84. referred to. “the condition”, and reflected the choice of the imposition method rather than the invoice method, Petitioners are again asking the Agency to rule on evidentiary issues that are outside the scope of the Agency’s authority. See Barfield. Further, Paragraph 84. was based on record evidence, namely. Petitioners’ Exhibit 13, which was accepted into evidence by the ALJ and made a part of the record. Lastly, in response to Petitioners’. argument that Paragraph 84 was incomplete and not supported by competent substantial evidence as the record evidence established that there was more than one condition for the imposition of the PMATF assessment, the Agency finds the ALJ was correct in his determination that only one condition had to occur before the PMATF assessment could be imposed, namely. that a hospital must have an “annual net operating revenue”. based on the “actual experience of the hospital.” See the ruling on Petitioners’. Exception Numbers Twenty- Two and Twenty-Three supra. . Therefore, Petitioners’. Exception Number Twenty-Four is denied. In Exception Number Twenty-Five, the Petitioners took exception to the first sentence and the first section of the second sentence of Paragraph 85 of the Recommended Order, arguing there was no competent substantial evidence to support the characterization of the Invoice Method. Petitioners also took exception to the final two sentences of Paragraph 85, arguing they were not supported by competent substantial evidence. Finally, Petitioners took exception to Paragraph 85 as a whole on the basis that it was a conclusion of law. With regard to Petitioners exception to the first sentence and the first section of the second sentence of Paragraph 85, there was competent substantial evidence to. support the ALIJ’s findings... See Transcript, Volume 2, Pages 108 and 145. Likewise, the final two sentences of Paragraph 85, those findings were also 13 based on competent substantial evidence. See Transcript, Volume 4, Pages 336, 339-340, 341 and 369-371. Additionally, assuming, arguendo, Paragraph 85 was a conclusion of law, the Agency could not substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(), Fla. Stat. Therefore, Petitioners’ Exception Number Twenty-Five is denied. In Exception Number Twenty-Six, Petitioners took exception to Paragraph 89 of. the Recommended Order, arguing the “additional conditions suggested by Petitioners” are in fact conditions for imposition of the PMATF, and that the finding was not supported by competent substantial evidence. Petitioners also took exception to Paragraph 89 on the basis that it was a conclusion of law. Contrary to Petitioners’ argument, the ALJ’s findings in Paragraph 89 were based on competent substantial evidence. See Transcript, Volume 4, Pages 336, 339-340, 341 and 369-371. Additionally, assuming, arguendo, Paragraph 89 was indeed a conclusion of law, the ALJ made a reasonable interpretation of when the assessment was to be imposed based on legislative intent derived from looking to the language of the statute, and the Agency could not substitute a conclusion of law as or more reasonable than that of the ALJ. See ruling on Petitioners’ Exception Numbers Twenty-Two and Twenty-Three supra. Therefore, Petitioners’ Exception Number Twenty-Six is denied. In Exception Number Twenty-Seven, Petitioners took exception to the first two sentences of Paragraph 93 of the Recommended Order, with regard to applying the imposition method to hospitals with April 30" and May 31" fiscal year ends. Petitioners argued the first two sentences of Paragraph 93 were not supported by competent substantial evidence and that the ALJ erred by not accepting proffered evidence relevant to this issue. Petitioners also argued Paragraph 93 was a conclusion of law. However, the ALJ’s findings in Paragraph 93 were based on competent 14 substantial evidence. See Transcript, Volume 4, Pages 336, 339-340, 341 and 369-371. Additionally, assuming, arguendo, Paragraph 93 was indeed a conclusion of law, the ALJ made a reasonable interpretation of when the assessment was to be imposed based on legislative intent derived from looking to the language of the statute, and the Agency could not substitute a conclusion of law as or more reasonable than that of the ALJ. See ruling on Petitioners’ Exception Numbers Twenty-Two and Twenty-Three supra. Lastly, in regards to Petitioners’ argument that the ALJ erred by not accepting proffered evidence relevant to this issue, Petitioners are again asking the Agency to rule on evidentiary issues that are outside the scope of the Agency’s authority... See Barfield. Therefore, Petitioners’. Exception Number. Twenty-Seven is denied. In Exception Number Twenty-Eight, Petitioners took exception to Paragraph 95 of the Recommended Order, arguing it was not based on competent substantial evidence and was an incorrect application of the law. Petitioners also took exception to Paragraph 95 on the basis that it was a conclusion of law. Petitioners are, in essence, asking the Agency to re-weigh the evidence, which it cannot do. See Section 120.57(1)(/), Fla. Stat.; Heifetz.. The ALJ’s findings were based on a review of the Refund Denial Letter, which was submitted into evidence and made a part of the record. See Petitioners’ Exhibit 8D. . Additionally, assuming, arguendo, Paragraph 95 was indeed a conclusion of law, the Agency could iiot substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(J, Fla. Stat. Therefore, Petitioners’ Exception Number. Twenty-Eight is denied. In Exception Number Twenty-Nine, Petitioners took exception to Paragraphs 96-98 of the Recommended Order, arguing the findings were not supported by competent substantial evidence and incorrectly applied Florida law. According to Petitioners, the challenged 15 statements met the definition of a “rule”, as provided in Section 120.52(15), Florida Statutes (2004), and constituted an unadopted rule. Petitioners further argued that they clearly proved the actual Agency. statement was “published”. . Lastly, Petitioners argued Paragraphs 96-98 of the Recommended Order were conclusions of law. Assuming arguendo, these paragraphs were conclusions of law,. the ALJ’s conclusions were based on a weighing of the record evidence presented in the case. Thus, the Agency cannot re-weigh the evidence to come to a conclusion that differs from that of the ALJ. See Section 120.57(1)(J), Fla. Stat.,; Heifetz. Further, case law supports the ALJ’s findings that the Agency’s statements as to how the changes to. Section 395.701, Florida Statutes, were going to be applied was not a “rule”... See, e.g., Environmental Trust v. State, Department of Environmental Protection, 714 So0.2d 493, 498 (Fla. 1* DCA 1998) (“An agency statement explaining how an existing rule of general applicability will be applied in a particular set of facts is not itself a rule.”).. Thus, the Agency could not substitute a conclusion of Jaw as or more reasonable than that of the ALJ. See Section 120.57(1)(), Fla. Stat. Therefore, Petitioners’. Exception Number Twenty-Nine is denied. In Exception Number Thirty, Petitioner Leesburg Regional Medical Center took exception to Paragraph 103 of the Recommended Order, arguing it was not supported by competent substantial evidence since it incorrectly calculated and characterized portions of the Joint Composité Exhibit 1 for Leesbitrg Regional"Medical Center-A review of the record fails to reveal the source of the $31,116.00 refund amount calculated by the ALJ for Leesburg Regional Medical Center for payments attributable to the first two quarters of its 2000-2001 fiscal year. Therefore, Petitioner Leesburg Regional. Medical Center’s exception is granted and Paragraph 103 of the Recommended Order is stricken in its entirety. 16 In Exception Number Thirty-One, Petitioners took exception to the failure of the Recommended Order to. make findings of fact regarding the comparative effect of the Agency’s interpretation of Chapter 2000-256, Laws of Florida, upon Petitioners. However, Petitioners failed to clearly identify which portions of the Recommended Order they disputed, or the legal basis for their. exception... Section 120.57(1)(k), Florida Statutes (2004), states “an agency. need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.”., Therefore, the Agency need not rule on Petitioner’s Exception Number Thirty-One. In Exception Number Thirty-Two, Petitioners took exception to that portion of Paragraph 110 of the Recommended Order which states that the Petitioners failed to meet their burden that the interpretation advanced. by. the Agency. constituted an “unadopted rule”. . However, this exception relies on Petitioners’ Exception Numbers Twenty-Eight and Twenty-Nine, which were denied by the Agency supra. . Therefore, Petitioners’ Exception Number Thirty-Two is also denied. In Exception Number Thirty-Three, Petitioners took exception to the third and fourth sentences of Paragraph 113 of the Recommended Order, arguing they did not fairly state Petitioners’. arguments in this case. . The Petitioners also “arguéd the Recommended Order inappropriately. limited its view. to. only that evidence that supported the ALJ’s imposition theory, to the exclusion of other competent substantial evidence, a preponderance of which demonstrated that the Petitioners invoice method was correct. First, Petitioners failed to state a legal basis for their exception. See Section 120.57(1)(k), Florida Statutes (2004). Second, the Petitioners are again asking the Agency to re-weigh the evidence, which it cannot do. See Section 120.57(1)(), 17 Fla. Stat.; Heifetz. . Third, the ALJ’s conclusions in Paragraph 113. were based on competent substantial evidence. See, e.g., Transcript, Volume 2, Pages 124-134 and 137. Therefore, Petitioners’ Exception Number Thirty-Three is denied. In Exception Number Thirty-Four, Petitioners took exception to Paragraph 114 of the Recommended Order, arguing it was incorrect as a matter of law and reached the wrong conclusion by looking to the wrong place to. determine Legislative intent. . However, the ALJ’s conclusion that “[w]hat actually governs legislative intent in these cases is the plain language of Section 395.701, Florida Statutes (2000)” is correct based on the relevant case law. on this issue... See Miele; and Thatcher Glass Corp. Thus, while the Agency has substantive jurisdiction over this matter, it could not substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(/), Fla. Stat. Therefore, Petitioners’ Exception Number. Thirty-Four is denied. In Exception Number Thirty-Five, Petitioners took exception to Paragraphs 115-121 of the Recommended Order, stating the case law and principles of analysis presented in those paragraphs actually. supported the Petitioners’ position in this case when the analysis is applied to Chapter 2000-256, Laws of Florida, rather than only to Section 395.701, Florida Statutes (2000), as the ALJ did. However, Petitioners failed to state a legal basis for their exception. See Section 120.57(1)(k), Florida Statutes” (2004):"~ Therefore, the’Agency” need~not-rule on Petitioners’, Exception Number Thirty-Five. In Exception Number Thirty-Six, Petitioners took exception to Paragraph 123 of the Recommended Order in regards to the limitation of the scope of the conclusion. According to Petitioners, Chapter 2000-256, Laws of Florida, should be analyzed rather than only Section 395.701, Florida Statutes (2000). Petitioners also argued the conclusion reached is simply not 18 supportable as Section 395.701, Florida Statutes (2000), is not “clear and unambiguous” regarding how to apply the PMATF rate reduction effective July 1, 2000. First, contrary to Petitioners’ assertion that Chapter 2000-256, Laws of Florida, should be analyzed rather than only Section 395.701, Florida Statutes (2000), the case law cited by the ALJ is quite clear that legislative intent is derived from looking to the language of the statute itself. See Miele; and Thatcher Glass Corp. The ALJ, in correctly applying that case law, looked to Section 395.701, Florida Statutes (2000) and found it to be clear and unambiguous as to when the reduced rate should be applied. The Agency finds that, while it does have substantive jurisdiction over this matter, it could not substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(), Fla. Stat. Therefore, Petitioners’. Exception Number. Thirty-Six is denied. In Exception Number Thirty-Seven, Petitioners took exception to the first words of Paragraph 124. of the Recommended Order, wherein the ALJ states “Section 395.701, Florida Statutes, effective July. 1, 2000, clearly evidences....”, arguing the effective date of the statute in question is not found in Section 395.701, Florida Statutes (2000), but in the language of Chapter 2000-256, Laws of Florida. According to Petitioners, the Recommended Order is “attempt[ing] to, on the one hand, state that one can determine the meaning of the PMATF rate reduction by looking only at Section 395.701, Florida Statutes, while at the same*time referring to Chapter 2000-256, Laws of Florida, for other purposes, such as that contained in Paragraph 124.” However, Petitioners offered no legal basis for their exception. Furthermore, contrary to Petitioners’ exception, the ALJ was not “picking and choosing which sections of a Legislative enactment to. consider” but rather directly. quoting from Section 395.701, Florida Statutes (2000), of which he took official recognition and made a part of the record in this case. The Agency 19 finds that, while it does have substantive jurisdiction over this matter, it cannot substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(A, Fla. Stat. Therefore, Petitioners’ Exception Number Thirty-Seven is denied. In Exception Number Thirty-Hight, Petitioners took exception to Paragraph 125 of the Recommended Order, arguing it was not consistent with legislative intent and indeed frustrated the Legislature’s intent that the Act be revenue neutral. . Petitioners contend that the Act, when read as a whole, was clear in showing that the invoice method was to be utilized in implementing the rate reduction. Petitioners are again asking the Agency, in essence, to re-weigh the evidence jn order to come to a different conclusion than that of the ALJ. This the Agency cannot do. See Section 120.57(1)(), Fla. Stat.; Heifetz. Additionally, the Agency finds that, while it does have jurisdiction over this matter, it cannot substitute a conclusion of law as or more reasonable than that of the ALJ. See Section 120.57(1)(), Fla. Stat. Therefore, Petitioners’. Exception Number. Thirty-Bight is denied. In Exception Number Thirty-Nine, Petitioners took exception to the first sentence of Paragraph 126 of the Recommended Order, stating there was no need to resort to additional principles of statutory construction or extrinsic evidence, and then finding that the Legislature intended to apply the imposition methodology. Petitioners maintained that this conclusion was incorrect as a matter of law. According to Petitioriét’s, looking only to’ Section 395.701, Florida Statutes, “in the face of the uncontroverted evidence introduced on this record regarding Chapter. 2000-256, Laws of Florida, is inappropriate and unsupportable.”,. However, Petitioners offered no legal basis for their exception. Additionally, Petitioners are again asking the Agency, in essence, to re-weigh the evidence in order to come to a different conclusion than that of the ALJ. This the Agency cannot do. See Section 120.57(1)(), Fla. Stat.; Heifetz. Furthermore, the ALJ’s conclusion was in line with the case law on this issue. See ruling on Petitioners’ Exception Numbers Twenty-Two and Twenty-Three, Thirty-Four, and Thirty-Six supra. Therefore, Petitioners’. Exception Number. Thirty-Nine is denied. In Exception Number Forty, Petitioners took exception to Paragraph 128 of the Recommended Order, arguing that they are entitled to refunds based on the invoice methodology in Exhibit 12. Petitioners further stated that, if the imposition method is to be utilized, Petitioners with fiscal year ends of April 30" and May 31™ should be entitled to the refund amounts reflected in Exhibit 14 as all the various conditions for imposition were not met for their 2000 fiscal year prior to July 1, 2000. However, Petitioners offered no legal basis for their exception... Additionally, Petitioners’. Exception Number Forty. is dependent on their Exception Numbers Thirty-Three through Thirty-Nine, which were denied... Therefore, Petitioners’ Exception Number Forty is also denied. In Exception Number Forty-One, Petitioners took exception to the first sentence of Endnote 8 of the Recommended Order, which states “...that have some type of business or ownership relationship with HCA Health Services of Florida, Inc,....”, arguing it was not based on competent substantial evidence unless it stated “...that are affiliates or subsidiaries of HCA, Inc.,...”.. Petitioners also, stated the reference to “Tenet Health Systems Hospitals, Inc.” should be changed to “Tenet Healthcare Corporation.” However, Pétitioners did not identify the legal basis for the exception, and did not include appropriate and specific citations to the record in support of their exception. See Section 120.57(1)(k), Florida Statutes (2004). Further, the case styles for DOAH case numbers 03-1870, 03-1875, 03-1906, 03-1907, and 03-1934 used the names referred to. by. the ALJ in Endnote 8 of the Recommended Order... Therefore, Petitioners’ Exception Number Forty-One is denied. In Exception Number Forty-Two, Petitioners took exception to the first sentence of the second paragraph of Endnote 16 of the Recommended Order, maintaining that reading the provisions of Chapter 2000-256, Laws of Florida, in_pari materia with the Legislative appropriation is relevant to the determination of this case, and is determinative of the proper result in this case. . However, Petitioners’ argument was already addressed by. the Agency in its ruling on Petitioners’ Exception Numbers Thirty-Three through Thirty-Nine supra. Therefore, for the reasons stated in the ruling on Petitioners’ Exception Numbers Thirty-Three through Thirty-Nine, Petitioners’ Exception Number. Forty-Two is also denied. In Exception Number Forty-Three, Petitioners took exception to the last paragraph of Endnote 16 of the Recommended Order, arguing it was not based on competent substantial evidence... Petitioners’. exception parallels their Exception Numbers. Seven, Eight and Nine, which were all denied. Therefore, for the reasons stated in the ruling on Petitioners’ Exception Numbers Seven, Eight and Nine supra, Petitioners’. Exception Number Forty-Three is also denied. In Exception Number Forty-Four, the Petitioners took exception to Endnote 19 of the Recommended Order, arguing it was not supported by competent substantial evidence. However, there was competent substantial evidence to support the ALJ’s statements in Endnote 19. See Transcript, Volume 2, Pages 113-114; Transcript, Volume 4;Page 351; and Petitioners’ Exhibit 8B.. Therefore, Petitioners’. Exception Number. Forty-Four is denied. Petitioners’. Exception Number Forty-Five was addressed by the Stipulation filed by the parties to this case, which the Agency acknowledged and incorporated as part of this final order. Therefore, it is now moot. FINDINGS OF FACT The Agency adopts the findings of fact set forth in the Recommended Order, except where noted supra. CONCLUSIONS OF LAW The Agency adopts the conclusions of law set forth in the Recommended Order, except where noted supra. JT IS THEREFORE ADJUDGED THAT: The changes made to Section 395.701, Florida Statutes (2000), shall be applied to Petitioners in accordance with the imposition method described in the Recommended Order. Petitioners, other than those with a June 30, 2000, fiscal year-end, are entitled to refunds of PMATF payments as calculated in Exhibit 13 of the Refund Calculation Notebooks. Petitioners with a June 30, 2000, fiscal year-end are entitled to refunds of PMATF payments calculated in Exhibit 14 of the Refund Calculation Notebooks. - 6 DONE and ORDERED this 23 day of JUne¢ , 2008 in Tallahassee, Ae. Farwiot ALAN LEVINE, Secretary ee AGENCY FOR HEALTH CARE ADMINISTRATION Florida. 23 NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG WITH THE FILING FEE PRESCRIBED BY LAW WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this ZS day of Tee 2000S RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS#3 Tallahassee, Florida 32308 (850) 922-5873 COPIES FURNISHED TO: Larry J. Sartin Administrative Law Judge Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Steven T. Mindlin, P.A. John L. Wharton, Esquire Diane D. Tremor, P.A. Rose, Sundstrom & Bentley, LLP 2548 Blairstone Pines Drive Tallahassee, Florida 32301 24 C. Gary Williams, Esquire Michael J. Glazer, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302 Jonathan L. Rue, Esquire Parker, Hudson, Rainer & Dobbs, LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue, Northeast Atlanta, Georgia 30303 Karen A. Putnal, Esquire Parker, Hudson, Rainer & Dobbs, LLP The Perkins House, Suite 200 418 North Gadsden Street Tallahassee, Florida 32301 Grant P. Dearborn, Esquire Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS#3 Tallahassee, Florida 32308 Jean Lombardi Finance & Accounting

Docket for Case No: 04-001564

Orders for Case No: 04-001564