STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2364

)

CONVALESCENT SERVICES OF ) WEST PALM BEACH, INC., d/b/a ) LAKESIDE HEALTH CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly appointed Hearing Officer, R. T. Carpenter, held a hearing in this case on February 8, 1982, in Orlando, Florida. The parties were represented by:

For petitioner: Robert P. Daniti, Esquire

Licensure and Certification Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

For Respondent: Mark P. Lang, Esquire and

Stephen W. Pickert, Esquire DEMPSEY AND SLAUGHTER, P.A.

Eola Office Building, Suite 610 605 East Robinson Street Orlando, Florida 32801

This matter arose on Petitioner's assessment of a late fee pertaining to Respondent's renewal of its skilled nursing facility license for the period July 1, 1981, through June 30, 1982. Following hearing, Petitioner submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted, or otherwise incorporated herein, they have been rejected as lacking relevance or as unsupported by the evidence.

FINDINGS OF FACT

1. Respondent was licensed to operate Lakeside Health Center, 2501 Australia Avenue, West Palm Beach, Florida, at all times material to this proceeding. It currently holds Skilled Nursing Facility License No. 238, issued by Petitioner.

   
   

2. Pursuant to Subsection 400.111(1), Florida Statutes, such licenses must be renewed annually. Respondent's annual license expires on June 30. Prior to revision of this statute by the 1980 Legislature (Chapter 80-186), renewal

   applications were required 60 days prior to the expiration date. Thereafter, such renewal applications were required to be submitted to Petitioner 90 days prior to expiration. Additionally, the revised statute established a daily late charge equal to 50 percent of the preceding annual renewal fee.

   
   

3. Respondent's application for its 1981-82 license renewal was due on April 2, 1981, which was 90 days prior to expiration. The application was actually filed on June 8, 1981, which is 67 days after the due date. Its previous renewal fee (1980-81) was $194. Fifty percent of this amount, $97, multiplied by 67 days equals $6,499, the amount of the late fee which Petitioner seeks to impose.

   
   

4. Although it is not required by statute or rule to do so, Petitioner reminds licensees of their renewal obligation sufficiently in advance to preclude inadvertent delay. Additionally, Petitioner sent a form letter to all nursing home administrators on August 11, 1980, advising them of the revisions to Subsection 400.111(1), Florida Statutes.

   
   

5. Petitioner's first notification to Respondent regarding the renewal deadline for its 1981-82 license was dated January 7, 1981. However, this letter was misaddressed and Respondent's denial of receipt is accepted.

   
   

6. Petitioner's second notification was dated January 21, 1981, and was properly addressed. The letter was processed in due course by Petitioner's Licensing and Certification Office and was presumably received by the addressee, although Respondent denies this. Renewal letters were sent by ordinary mail at that time, but are now certified.

   
   

7. Respondent argues that the January 21 letter misstated the due date as March 16, 1981, rather than the correct date of April 2. This was harmless error, however, and had no effect on Respondent's delay. Similarly, the requirement contained in this letter that renewals be filed with the local county health unit rather than directly with Petitioner in no way caused or contributed to Respondent's delayed filing.

   
   

8. During the period when license renewal should have taken place, Respondent was experiencing changes in its administration and overlooked the renewal requirement. An interim administrator telephoned Petitioner's Jacksonville office in November, 1980, to inquire about renewal, and was told the forms would be finished automatically prior to the due date.

   
   

9. This was the purpose of Petitioner's January 7 and January 21 letters, which Respondent denies receiving. Petitioner's third letter, dated May 22, 1981, intended to be a further reminder, was received and acted on by Respondent, prior to expiration of its 1980-81 license. By then, however, the

   $6,499 penalty had accrued.

   
   

   CONCLUSIONS OF LAW

   
   

10. Subsection 400.111(1), Florida Statutes (Supp. 1980) provides:

    
    

    1. Licenses issued for the operation of a facility, unless sooner suspended or revoked, shall expire 1 year from the date of issuance. Ninety-days prior to the expiration date, an application for renewal shall be submitted to the Department of

       Health and Rehabilitative Services, and licenses shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first met the requirements established under this chapter and all rules and regulations promulgated hereunder. The failure to file an application within the period established herein shall result in a late fee charged to the facility by the department in an amount equal to 50 percent of the fee in effect on the last preceding regular renewal date. A late fee shall be levied for each and every day the filing of the license application is delayed. Late fees shall be deposited and disbursed through the Patient Protection Trust Fund established by s. 400.063. New facilities which are in substantial compliance with this section and with the rules of the Department of Health and Rehabilitative Services, but which have deficiencies, may be issued conditional licenses pending correction of deficiencies.

       
       

11. The above provision establishes a mandatory late fee where, as here, the renewal application is filed less than 90 days prior to license expiration. Respondent's attempt to shift the blame for its noncompliance to Petitioner must be rejected as Petitioner has no obligation to remind Respondent of its renewal responsibility. Thus, any failure by Petitioner to insure that Respondent was so notified is irrelevant. Furthermore, there is no provision for waiver of this penalty regardless of its seeming inequity.

    
    

12. Respondent also attacks the penalty provision of the above statute on Constitutional grounds. However, such challenge is beyond the scope of these proceedings.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order assessing Respondent a late fee of $6,499 on the basis of its delay in applying for renewal of its license to operate a skilled nursing facility for the period beginning July 1, 1981.

DONE AND ENTERED this 8th day of March, 1982, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1982.

COPIES FURNISHED:

Robert P. Daniti, Esquire Licensure and Certification Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

Mark P. Lang, Esquire, and Stephen W. Pickert, Esquire DEMPSEY AND SLAUGHTER, P.A.

Suite 610, Eola Office Building 605 East Robinson Street Orlando, Florida 32801

Docket for Case No: 81-002364

Orders for Case No: 81-002364