STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ASSOCIATION OF HOME ) HEALTH AGENCIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-1565RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

and )

) METHODIST HOSPITAL, INC., and ) FLORIDA STATE HOSPITAL )

ORGANIZATION, INC., )

)

Intervenors. )

)

FINAL ORDER

This matter came on for hoaring in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on September 17, 1980, and went over into the following day at the end of which the matter was continued until October 28, 1980. By stipulation of the parties time for entry of the final order was extended until

60 days after receipt of the transcript of proceedings. The Division of Administrative Hearings received the transcript on November 17, 19130. The parties were represented by counsel:

APPEARANCES

For Petitioner: Stephen Marc Slepin, Esquire, and

Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32302

For Respondent: George Waas, Esquire, for whom

Donna H. Stinson, Esquire, substituted posthearing

1323 Winewood Boulevard, Suite 406

Tallahassee, Florida 32301

For Intervenors: Kenneth F. Hoffman, Esquire

Suite 646, Lewis State Bank Building Tallahassee, Florida 32301

In this proceeding, petitioner challenges as invalid all the rules respondent has promulgated governing hospices, Rules 10D-80.01 through 10D- 80.22, Florida Administrative Code, Inclusive. Petitioner's Exhibit No. 2.

Petitioner is an association of home health agencies. Four member agencies have expressed interest in licensure under the challenged rules. Of these four, at most three have filed letters of intent to apply for certificates of need, but no member agency has actually applied for a certificate of need, which is a prerequisite to licensure. A consideration for at least one member home health agency in not applying for a certificate of need has been the anticipated construction and other costs necessary for compliance with the challenged rules as a prerequisite to licensure, even if a certificate' of need could be obtained. But the fact remains that no home health agency member of Petitioner has applied for licensure under the challenged rules. See Professional Firefighters of Florida, Inc., James B. Jackson, Dominick F. Barbera and Gary Rainey v. Department of Health and Rehabilitative Services, No. 78-2044R (DOAH; May 34, 1979).

On the average, two to three percent of patients served by home health agencies are eligible for the services of a hospice, but such services are not always available. The only licensed hospice in Florida is located in Jacksonville. There the experience has been that "the presence of a hospice program delivering quality home care has actually increased the overall business" (Transcript, page 619) done by home health agencies. The evidence did not show that any home health agency member of petitioner has suffered or is likely to suffer a competitive disadvantage as the result of the promulgation of any of the challenged rules.

Even if tide evidence had shown that a home health agency member of petitioner was "substantially affected by a rule," Section 120.56(1), Florida Statutes (1979), petitioner itself, as respondent and intervenors have argued in their proposed final orders, lacks standing to petition for a determination of the invalidity of Rules 10D-80.01, et seq., Florida Administrative Code.

Department of Labor and Employment Security, Division of Labor v. Florida Home Builders Association, et al. v. Florida Building Trades Council, et al., No. MM-

159 (Fla. 1st DCA; December 9, 1981)(building contractor associations lack standing to challenge rule even though "the builders represented by the associations were competitively disadvantaged by operation of the challenged rule" Slip Op., p. 1); Florida Department of Education v. Florida Education Association/United, etc., 378 So.2d 893 (Fla. 1st DCA 1979).

In these circumstances, it is unnecessary to reach the merits of petitioner's claims that the challenged rules exceed delegated legislative authority or that the economic impact statement is deficient.

It is, accordingly, ORDERED:

The petition is dismissed.

DONE and ENTERED this 12th day of January, 1981, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day January, 1981.

COPIES FURNISHED:

Stephen Marc Slepin, Esquire Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32302

George Waas, Esquire Donna H. Stinson, Esquire Suite 406

1323 Winewood Boulevard

Tallahassee, Florida 32301

Kenneth F. Hoffman, Esquire

Suite 646, Lewis State Bank Building Tallahassee, Florida 32301

Docket for Case No: 80-001565RX

Orders for Case No: 80-001565RX