STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FT. WALTON BEACH )

DEVELOPMENTAL CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3741

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Among other pending motions, petitioner's motion for summary adjudication came on to be heard in a telephone conference call on February 8, 1990, and was revisited in a telephone conference call the following day, during which counsel for respondent represented that the Department of Health and Rehabilitative Services (HRS) would not, in accordance with section 120.60(7), Florida Statutes (1989), institute disciplinary proceedings against petitioner's license.

APPEARANCES

For Petitioner: Thomas D. Watry, Esquire

One Perkins House

118 North Gadsden Street Suite 101

Tallahassee, FL 3230Th

For Respondent: Michael O. Mathis, Esquire

2727 Mahan Drive

Tallahassee, FL 32308 STATEMENT OF THE ISSUE

Whether HRS may impose a moratorium forbidding an intermediate care facility to accept new, developmentally disabled residents without affording the affected facility an opportunity for an evidentiary hearing?

PRELIMINARY STATEMENT

Whatever the facts that inspired HRS, rightly or wrongly, to impose a moratorium, the circumstances pertinent to petitioner's motion are stated in the following findings of fact, assumed to be true for purposes of decision. In the posture of the present case, the parties agreed that no evidentiary hearing was necessary, in order to resolve the determinative, procedural question.

FINDINGS OF FACT

1. By letter dated May 1, 1989, HRS gave petitioner formal notice of a moratorium on new admissions to petitioner's intermediate care facility for the developmentally disabled, effective two days earlier.

   
   

2. Thereafter, HRS terminated the moratorium. As far as the record shows, the moratorium had no effect on the facility's census.

   
   

3. HRS never filed an administrative complaint or took other steps to institute proceedings to restrict, suspend or revoke petitioner's license, in accordance with section 120.60(7), Florida Statutes (1989), and has no intention of doing so.

   
   

   CONCLUSIONS OF LAW

   
   

4. In accordance with section 393.0673(4), Florida Statutes (1987), HRS "may impose an immediate moratorium on admissions to any facility when the department determines that any condition in the facility presents a threat to the health, safety or welfare of the residents in the facility." Such action constitutes summary restriction or limitation of a license under section 120.60(8), Florida Statutes (1989), which provides:

   
   

   Summary suspension, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under [s.120.60] shall also be promptly instituted and acted upon.

   
   

   Read in pari materia with Section 393.0673, Florida Statutes (1989), the Administrative Procedure Act authorizes HRS to act in an emergency without affording the affected licensee an opportunity for an evidentiary hearing beforehand, but requires that formal proceedings, which include an opportunity for an evidentiary hearing, be promptly instituted.

   
   

5. Considerations of fair play and constitutional requirements concerning due process no doubt inform the statutory judgment that a facility subject to a moratorium have an opportunity to present its version of the facts at an appropriate time.

   
   

6. By filing an administrative complaint in conjunction with its order imposing the now terminated moratorium, HRS would have been in full compliance with all statutory requirements. Instituting administrative proceedings even at this late date might constitute substantial compliance, if the passage of time did not affect the fairness of the proceedings. But HRS declines to specify the grounds for its action in an administrative complaint or take any other step to institute formal license disciplinary proceedings. The effect is to deprive petitioner of an evidentiary hearing on the facts HRS thought justified emergency restriction of petitioner's license, in contravention of section 120.60(8), Florida Statutes (1989).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That HRS enter an order rescinding the moratorium it imposed on new admissions to petitioner's facility, effective April 28, 1989.

DONE and ENTERED this 12th day of February, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1990.

COPIES FURNISHED:

Thomas D. Watry, Esquire The Perkins House

118 North Gadsden Street Suite 101

Tallahassee, FL 32301

Michael O. Mathis, Esquire Senior Staff Attorney Office of Licensure and Certification

2727 Mahan Drive

Tallahassee, FL 32308

John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

FT. WALTON BEACH DEVELOPMENTAL CENTER,

Petitioner,

CASE NO.: 89-3741

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY THE DEPARTMENT

The department's exceptions to the conclusions of law expressed in the Recommended Order are granted. See the conclusions of law expressed in this Final Order.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

1. The department may require an immediate moratorium on admissions at a facility any time it determines that there is a condition posing a threat to the health,

   safety, or welfare of the residents pursuant to Section 393.0673(4), Florida Statutes (1989).

   
   

2. The moratorium contemplated by this section is meant to serve as an interim or temporary measure to allow for the correction of deficiencies by a licensee, and not to take the place of a suspension, revocation, or limitation of a license.

3. Section 393.673(3), Florida Statutes (1989), expressly authorizes the department to immediately revoke or suspend a license. The moratorium provision contemplated in Section 393.0673(4), Florida Statutes (1989), cannot be read as an interchangeable term of art to be substituted for, or confused with, an order to revoke or suspend a license.

   
   

4. The provisions of Section 120.60(8), Florida Statutes (1989); which like Section 393.0673(3), Florida Statutes (1989) address an immediate order to suspend or revoke a license when the agency finds an immediate danger to the health, safety, and welfare; does not apply to a moratorium imposed pursuant to Section 393.0673(4), Florida Statutes (1989).

   
   

5. The agency decision letter from Connie Cheren to the facility gave petitioner a clear point of entry to contest the factual basis for the imposition of the moratorium. Petitioner was given the opportunity for an evidentiary hearing on the merits of the imposition of the moratorium. However, the reason stated in the agency decision letter for imposing the moratorium was not as clear as it should have been.

The department followed all procedural requirements pertaining to the imposition of a moratorium pursuant to Section 393.0673(4), Florida Statutes (1989). However, due to the lack of clarity in the recitation of the grounds for the imposition of the moratorium, the moratorium is lifted on the date on which it was imposed.

DONE and ORDERED this 23 day of March 1990, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by

Deputy Secretary for Programs

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS 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 RENDITION OF THE ORDER TO BE REVIEWED

Copies furnished to: Thomas D. Watry, Esquire

The Perkins House - Suite 101

118 North Gadsden Street Tallahassee, FL 32301

Michael O. Mathis, Esquire

Office of Licensure and Certification 2727 Mahan Drive, Room 208

Fort Knox Executive Center Tallahassee, FL 32308

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named

people by U.S. Mail this 28 day of March , 1990.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 89-003741

Orders for Case No: 89-003741