STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FARM WORKERS RIGHTS ORGANIZATION ) and MARIA GUADALUPE CARRILLO, )

)

Petitioner, )

and )

) CARMEN TORRES and ELVIRA REYNA, )

)

Intervenors, )

)

vs. ) CASE NO. 81-3243RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

A formal administrative hearing was conducted in this matter on May 6, 1982, in Fort Myers, Florida. The following appearances were entered: Robert

J. Willis and Gregory S. Schell, Bartow, Florida, appeared on behalf of the Petitioners; and James M. Barclay, Tallahassee, Florida, appeared on behalf of the Respondent.

A "Petition for Determination of Invalidity of Rules" was originally filed with the Division of Administrative Hearings by the Farm Workers Rights Organization and Maria Guadalupe Carrillo on December 29, 1981. Petitioners were seeking a determination that Department of Health and Rehabilitative Services Rules 10-5.11 and 10-5.12(8), Florida Administrative Code, constituted invalid exercises of delegated legislative authority. The Petition was filed under authority of Section 120.56, Florida Statutes. The Director of the Division of Administrative Hearings entered an Order of Assignment on January 4, 1982. The final hearing was originally scheduled to be conducted on January 27, 1982, by notice dated January 7, 1982. The parties waived the time requirements set out at Section 120.56(2), Florida Statutes, and jointly moved for a continuance of the hearing. The motion was granted by Order entered January 21, and the hearing was rescheduled to be conducted on March 26, 1982. The parties agreed to a further waiver of the time limitations and moved to continue the hearing scheduled for March 26. The motion was granted, and the hearing was rescheduled to be conducted on April 13. On April 1, the Respondent filed a Motion to Dismiss the Petition, asserting that Petitioners failed to allege sufficient facts to demonstrate that they had standing to maintain the rule challenge proceeding. The motion was granted, with leave to amend, by Order entered April 7, 1982. Petitioners filed an Amended Petition on April 8. The final hearing was then rescheduled to be conducted on May 6. The Respondent moved to dismiss the Amended Petition. The motion was denied by Order entered April 29, 1982.

At the final hearing, Petitioners called the following witnesses: Joseph Feith, the Executive Director of Lehigh General Hospital; Carmen Torres, one of the Petitioners; Edward Griffin, a consultant who works with the Petitioner Farm Workers Rights Organization; Gary Clark, the Deputy Assistant Secretary for Health Planning and Development of the Department of Health and Rehabilitative Services; and Francis P. Gonzalez, a resident of Lehigh Acres, Florida. Gary Clark testified as a witness on behalf of the Department. Petitioners Exhibits 1, 3-6, 10-19, 21, 22, 25-31, and 33; and Respondent's Exhibit 1 were offered

into evidence and received. Petitioners' Exhibits 7, 8, 9, 20, 23, 24, and 32 were rejected. Ruling upon the admissibility of Petitioners' Exhibit 2 was reserved. The parties have submitted posthearing legal memoranda including proposed final orders.

Petitioners contend that Department of Health and Rehabilitative Services Rules 10-5.11 and 10-5.12(8), Florida Administrative Code, constitute invalid exercises of delegated legislative authority. The rules establish criteria to be considered by the Department in evaluating application for Certificates of Need by health care providers. Petitioners contend that the rules are invalid because they do not require the Department to consider the extent to which a proposed facility would serve the needs of economically disadvantaged persons and minority groups. Petitioners contend that federal regulations require consideration of these matters, and that Florida law requires that the Florida rules be consistent with the federal rules. Petitioners are seeking an order determining that the rules are invalid, and an order setting aside a Certificate of Need issued by the Department to Lehigh General Hospital in accordance with the rules. The Department contends that the Petitioners lack standing to maintain the rule challenge proceeding, that its rules are sufficiently broad to allow consideration of the extent to which a facility meets the needs of disadvantaged and minority persons, and that the rules constitute valid exercises of delegated legislative authority.

FINDINGS OF FACT

1. The Petitioner Farm Workers Rights Organization is an educational and charitable nonprofit corporation which has been organized under the provisions of Chapter 617, Florida Statutes. The purposes of the organization as provided in its Articles of Incorporation are as follows:

   
   

   To raise the economic, educational, and social levels of migrant and seasonal farm

   workers . . . who are seasonally unemployed, underemployed, or whose income is below federal poverty guidelines and to foster and promote community wide interest and concern for the problems of said farm workers to the end that (a) educational and economic opportunities may be expanded; (b) sickness, poverty, crime, and environmental degradation may be lessened; and (c) racial tensions, prejudice, and discrimination, economic and otherwise, may be eliminated.

   
   

   The organization is authorized under its Articles of Incorporation to do all lawful activities for the furtherance of its purposes. The Farm Workers Rights Organization is an active organization which has more than one thousand members. About three thousand persons are loosely associated with the organization. Many members of the organization reside in or around Immokalee, Florida, but members

   come from all over the state. Approximately ninety percent of the members are nonwhite, and most earn low or irregular incomes. Health problems are both a symptom and a cause of many of the problems that migrant farm workers face. The Farm Workers Rights Organization is active in promoting improved health care services for its members. The organization has actively opposed the issuance of Certificates of Need by the Department of Health and Rehabilitative Services to health care providers which the organization contends do not adequately address the health care needs of poor and minority persons. A substantial number of the organization's members have experienced difficulty in obtaining access to needed health care services.

   
   

2. The Petitioner Carmen Torres is a member of the Farm Workers Rights Organization. She is a low income person of Hispanic background who resides near Immokalee, Florida. She participates in the Medicaid Program. She has experienced some difficulty in obtaining adequate medical assistance for illnesses that she has suffered because many physicians and health care facilities do not accept Medicaid patients. Petitioner would like to have better access to hospital facilities such as those at Lehigh General Hospital. She has never applied for services at Lehigh General Hospital. Friends have advised her that Lehigh General Hospital would not accept her as a patient.

   
   

3. No competent evidence was offered as to the identity or status of the other persons who are named as Petitioners in this proceeding.

   
   

4. The Department of Health and Rehabilitative Services is responsible for administering Florida's Certificate of Need program under the provisions of Section 381.494, Florida Statutes. The Department is Florida's state health planning and development agency designated pursuant to the provisions of federal law. 42 U.S.C. s3000M.

   
   

5. The Department has adopted rules setting criteria to apply to applications for Certificates of Need. These criteria are set out in Rule 10- 5.11, Florida Administrative Code. The rule does not specifically require that the Department consider the extent to which an applicant's proposed service would meet the needs of low income or minority persons, neither does the rule deem those needs irrelevant. Rule 10- 5.11(3) provides that the Department will evaluate "the need that the population served or to be served has for such pro posed health or hospice services." Rule 10-5.12(8) provides for hearing procedures to be conducted by the Division of Administrative Hearings under the provisions of Chapter 120, Florida Statutes. The rule provides at Paragraph (8):

   
   

   The only decisions of the Department which may be reversed or revised by the Hearing Officer are decisions as to the consistency or inconsistency of the application with standards, criteria, and plans described in Rule 10-5.11 herein.

   
   

6. Rules that have been adopted by the United States Department of Health and Human Services under the provisions of 42 U.S.C. s3000M provide that state Certificate of Need review agencies consider the degree to which medically underserved persons have access to services under review. See: 42 C.F.R ss123.409(a), 123.412(a), and 123.413. States are required to administer their programs in harmony with the rules of the federal agency. Failure to do so can cause a state to lose federal funding assistance.

7. The Department's rules do not have the effect of removing consideration of how a proposed medical facility or service would impact the needs of low income or minority persons. The Department has obtained input regarding such needs in Certificate of Need proceedings and has considered them. There have been proceedings in which the Department has not specifically addressed the needs of low income and minority persons. The Petitioners have had a special interest in a Certificate of Need application that was filed with the Department by Lehigh General Hospital. Lehigh General Hospital is seeking to build a new hospital facility which would completely replace a present facility. The Department determined in that matter that the application would not impact minority or low income persons because the same basic services would be provided at the new facility as had been provided at the old facility. The service area of Lehigh General Hospital includes the area around Immokalee, Florida. The Department has approved Lehigh General Hospital's Certificate of Need application. The Petitioner Farm Workers Rights Organization is now pursuing judicial action to set aside the approval of that application. It appears that the Department has failed to specifically address the needs of low income and minority persons in other Certificate of Need proceedings. It does not appear, however, that the Department has any policy of not addressing those needs.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.56, Florida Statutes.

   
   

9. Ruling upon the admissibility of Petitioners' Exhibit 2 was reserved at the hearing. Petitioners' Exhibit 2 is a deposition of an official of the Department of Health and Rehabilitative Services that was taken in connection with a judicial proceeding. The deposition appears admissible under the provisions of Rule 1.330(a)(2), Florida Rules of Civil Procedure, and is hereby received.

   
   

10. On April 7, 1982, an Order was entered granting a Motion to Dismiss that was filed by the Department of Health and Rehabilitative Services. Petitioners filed an Amended Petition in response to the Order. On April 29, 1982, a Motion to Dismiss the Amended Petition was denied. Among the reliefs sought by Petitioners in their original Petition and in the Amended Petition was an Order setting aside the Certificate of Need that has been granted by the Department of Health and Rehabilitative Services to Lehigh General Hospital. That demand for relief was stricken from the Amended Petition in the April 29, 1982, Order. A rule challenge proceeding pursuant to Section 120.56, Florida Statutes, does not provide an appropriate vehicle for a collateral attack upon agency action that has been taken in a given case. Administrative and judicial remedies are available for challenging agency action or proposed agency action. Indeed, the Petitioner Farm Workers Rights Organization is in the process of pursuing those remedies in connection with the Lehigh General Hospital Certificate of Need proceeding. The Orders of April 7 and 29, 1982, are hereby incorporated into this Final Order.

    
    

11. The Department contends that the Petitioners lack standing to maintain a challenge to the Department's rules. This contention is without merit as to the Petitioners Farm Workers Rights Organization and Carmen Torres. The Farm Workers Rights Organization has a substantial number of members who are substantially affected by the criteria applied by the Department in its Certificate of Need proceedings. The criteria applied in determining the need for health care facilities and services is within the general scope of interest

    and activity of the Farm Workers Rights Organization, and the issue of whether the criteria is or is not a valid exercise of delegated legislative authority is the sort of relief that is appropriate for the Farm Workers Rights Organization to receive on behalf of its members. See: Florida Homebuilders Association v. Department of Labor and Employment Security, So.2d (Supreme Court of Florida Case No. 60, 211, decision filed March 25, 1982). The Petitioner Carmen Torres is an individual who has need of health care services and facilities.

    She has a substantial interest in the Department's rules which set the criteria to be applied in evaluating the need for such facilities and services in the area where she lives, and she is therefore substantially affected by the rules.

    
    

12. No competent evidence was offered to identify any of the other Petitioners. It has therefore not been established that any Petitioners other than the Farm Workers Rights Organization and Carmen Torres have the requisite standing to maintain a rule challenge proceeding.

    
    

13. Petitioners contend that the Department's rules conflict with rules of the United States Department of Health and Human Services. This contention is without merit. While the Department's rules do not specifically provide for consideration of all of the criteria set out in the federal rules, the state rules do not prohibit the consideration of such matters. The extent to which a given health care facility or service would meet the needs of low income and minority persons would appropriately be considered under the provisions of the Department's rules. The Department does not have a policy of failing to consider any of the criteria provided in federal rules. The Department has, in prior Certificate of Need proceedings, considered the extent to which a proposed facility or service would meet the needs of minority and low income persons.

    
    

14. The Department has promulgated its rules in accordance with the provisions of Section 381.494(7)(a), Florida Statutes. The paragraph provides:

The department is designated as the single state agency to issue, revoke, or deny Certificates of Need and to issue, revoke, or deny exemptions from Certificate of Need review in accordance with present and future federal and state statutes.

Petitioners have not shown that the Department's rules conflict in any manner with federal and state statutes. It has therefore not been established that the Department's rules constitute an invalid exercise of delegated legislative authority.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

ORDERED:

Petitioners have failed to establish that Department of Health and Rehabilitative Services Rules 10-5.11 and 10-5.12(8), Florida Administrative Code, constitute invalid exercises of delegated legislative authority, and the Amended Petition for Determination of Invalidity of Rules is accordingly dismissed.

DONE AND ORDERED this 22nd day of June, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.

COPIES FURNISHED:

Robert J. Willis, Esquire Gregory S. Schell, Esquire Florida Rural Legal Services,

Inc.

107 Main Street

Post Office Box 1109 Immokalee, Florida 33934

James M. Barclay, Esquire Office of Health Planning

and Development Department of Health and

Rehabilitative Services

1317 Winewood Boulevard., Suite 220

Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud

Chief, Administrative Code Bureau

Department of State 1802 The Capitol

Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FARM WORKERS RIGHTS ORGANIZATION ) and MARIA GUADALUPE CARRILLO, )

)

Petitioner, )

and )

) CARMEN TORRES and ELVIRA REYNA )

)

Intervenors, )

)

vs. ) CASE NO. 81-3243RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

APPENDIX TO FINAL ORDER, RULINGS IN ACCORDANCE WITH FLORIDA STATUTES

SECTION 120.59(2)

The parties have submitted proposed final orders which include proposed findings of fact and conclusions of law. Rulings upon the proposed findings and conclusions are set out herein in accordance with Section 120.59(2), Florida Statutes.

1. The proposed findings of fact set out in the Petitioners' proposed final order at Paragraphs 1-3, 5, 7, 8, 10, and 14-18 have been substantially adopted in the Findings of Fact set out in the Final Order. They are hereby adopted except insofar as they conflict with the Findings of Fact set out in the Final Order.

   
   

2. The findings of fact set out in the Petitioners' proposed final order at Paragraphs 4, 20, and 23 are not supported by the evidence, are contrary to the evidence, and are hereby rejected.

   
   

3. The proposed findings of fact set out in Paragraphs 11, 12, 13, and 19 of the Petitioners' proposed final order constitute conclusions of law and are therefore rejected as findings of fact. They are adopted as conclusions of law only to the extent that they have been specifically set out in the Conclusions of Law in the Final Order.

   
   

4. Paragraph 6 of the Petitioners' proposed findings of fact is adopted insofar as it characterizes the Petitioners' contentions. It is otherwise rejected. Paragraph 9 of the Petitioners' proposed findings is adopted, except insofar as the paragraph expresses any policy of Lehigh General Hospital, it is rejected. It does not appear that the Petitioner Torres ever applied for medical treatment at Lehigh General Hospital, or that any treatment was ever denied her.

5. The conclusions of law set out in the first sentence of Paragraph 1 of the Petitioners' proposed conclusions, and in Paragraphs 2 and 5 of Petitioners' proposed conclusions have been substantially adopted in the Conclusions of Law which accompany the Final Order, and are hereby adopted. The conclusions of law set out in the second sentence of Paragraph 1 of Petitioners' proposed conclusions and in Paragraphs 3, 4, 6, and 7 of Petitioners' proposed conclusions are hereby rejected.

   
   

6. The proposed findings of fact set out on Page 1 of the findings of fact in the Department's proposed final order have been substantially adopted in the Findings of Fact set out in the Final Order, and are hereby adopted.

   
   

7. The remaining proposed findings of fact set out in the Department's proposed order primarily constitute conclusions of law. They are adopted only to the extent that they have specifically been adopted in the Conclusions of Law in the Final Order.

   
   

8. Paragraph 1 of the proposed conclusions of law set out in the Department's proposed order is contrary to the Conclusions of Law set out in the Final Order and is hereby rejected. The conclusion of law set out in Paragraph

2 of the Department's proposed conclusions is in harmony with the Conclusions of Law set out in the Final Order and is adopted.

ENTERED this 22nd day of June, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.

COPIES FURNISHED:

Robert J. Willis, Esquire Gregory S. Schell, Esquire Florida Rural Legal Services,

Inc.

107 Main Street

Post Office Box 1109 Immokalee, Florida 33934

James M. Barclay, Esquire Office of Health Planning

and Development Department of Health and

Rehabilitative Services

1317 Winewood Boulevard., Suite 220

Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

1802 The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-003243RX

Orders for Case No: 81-003243RX