STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

APALACHICOLA VALLEY NURSING ) CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2905

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on April 20, 1982, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Stephen W. Pickert, Esquire

Post Office Box 1980 Orlando, Florida 32802

For Respondent: Joseph Shields, Esquire

1317 Winewood Boulevard, Suite 219

Tallahassee, Florida 32301

By request filed with the Division of Administrative Hearings on November 18, 1981, Respondent, State of Florida, Department of Health and Rehabilitative Services ("HRS") requested the assignment of a Hearing Officer to conduct formal proceedings on the Petition for Formal Administrative Hearing filed herein by Petitioner, Apalachicola Valley Nursing Center ("Petitioner"). Final hearing was scheduled for April 20, 1982, by Amended Notice of Hearing dated March 4, 1982. At the final hearing, petitioner called Kenneth Conners, Jr., and Stephen James Rabideau as witnesses. Petitioner offered Petitioner's Exhibits 1 through 6, which were received into evidence. Respondent called Marvin Travis and Bezena Sojka as its witnesses, and offered Respondent's Exhibits 3, 4, 7 and 8, which were received into evidence.

Counsel for both parties have offered proposed findings of fact for consideration by the Hearing Officer in the entry of this Recommended Order. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was a duly licensed nursing home facility participating in the Medicaid Program administered and funded by Respondent. As a Medicaid Program participant, Petitioner is required annually to file a cost report with Respondent. From this cost report, Respondent establishes a per diem rate for the provider reimbursement effective the first day of the month following the month in which the cost report is received.

   
   

2. Respondent provides each participating facility with forms to be used in submitting the annual cost report. These forms are sent to the participants by mail and are accompanied by instructions.

   
   

3. Petitioner's cost report for the fiscal year ending October 31, 1980, was prepared by an independent accounting firm which, on November 26, 1980, mailed the report by Express mail to the following address: Department of Health and Rehabilitative Services, Reimbursement Supervisor, Medicaid Desk Review, Post Office Box 2050, Jacksonville, Florida 32203. Express mail guarantees next-day delivery.

   
   

4. On November 27, 1980, a legal holiday under Section 683.01, Florida Statutes, petitioner's cost report was placed in Respondent's post office box in Jacksonville, Florida. Because of the holiday on November 27, 1980, Respondent's offices were closed. Respondent's offices were also closed on November 29, 1980, which is also a state holiday as observed by all state branches and agencies pursuant to Section 110.117, Florida Statutes.

   
   

5. November 29 and 30, 1980, were Saturday and Sunday, respectively, on which days Respondent's offices were also closed.

   
   

6. Petitioner's annual cost report was picked up from the post office by employees of Respondent on December 1, 1980, and delivered on that day to Respondent's Medicaid Review Desk. Because the cost report was received on December 1, 1980, Respondent assigned January 1, 1981, as the effective date of Petitioner's new rates, rather than the December 1, 1980, date which Petitioner contends is the correct effective date of its new rates because of its report having been placed in Respondent's post office box prior to December 1, 1980.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. Rule 10C-7.48(6)(c), Florida Administrative Code, requires nursing home facilities participating in the Medicaid Nursing Home Reimbursement Plan to file an annual costs report with Respondent, the purpose of which is to enable Respondent ". . .[t]o determine the cost settlement and the facility's rate for the following period. . ." Id.

   
   

9. Rule 10C-7.48(6)(d), Florida Administrative Code, provides that ". .

.facility payment rates shall be made effective the first day of the month following the receipt of the cost report by the Department." It is specifically concluded, as a matter of law, that Petitioner's cost report was not "received" by Respondent until December 1, 1980, so that the effective date of Petitioner's new rates should be established as of January 1, 1981.

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

1. That a final order be entered by the State of Florida, Department of Health and Rehabilitative Services, establishing January 1, 1981, as the effective date of Petitioner's new facility payment rates, and denying the relief requested by Petitioner.

DONE AND ENTERED this 29th day of June, 1982, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.

COPIES FURNISHED:

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

Post Office Box 1980 Orlando, Florida 32301

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Joseph Shields, Esquire Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Suite 219

Tallahassee, Florida 32301

Docket for Case No: 81-002905

Orders for Case No: 81-002905