STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL HEALTHCORP, L.P., )

)

Petitioner, )

)

vs. ) CASE NO. 90-0800RU

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent, )

and )

)

ARBOR HEALTH CARE CO., )

)

Intervenor. )

)

SUMMARY FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a hearing on March 13, 1990, to consider Petitioner's motion to continue the hearing on his challenge to an unpromulgated rule by the Department of Health and Rehabilitative Services.

APPEARANCES

For Petitioner: Gerald B. Sternstein, Esquire

Post Office Box 2174 Tallahassee, Florida 32316-2174

For Respondent: Richard A. Patterson, Esquire

Fort Knox Executive Center 2727 Mahan Drive, Suite 103

Tallahassee, Florida 32308

For Intervenor: John L. Wharton, Esquire

2548 Blairstone Pines Drive Tallahassee, Florida 32301

After a general discussion, the parties stipulated to the following: FINDINGS OF FACT

1. The Department of Health and Rehabilitative Services (DHRS) has developed a new scoring system for applicants for certificates of need for additional nursing home beds.

   
   

2. This system was applied to all applicants for certificates of need for nursing home beds in the previous batch of applications and was applied to all applicants in the current batch.

3. This system has not gone through the rulemaking provisions of Section 120.54, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

   
   

5. Section 120.54, Florida Statutes, establishes certain procedures an agency must take before promulgating a rule. Failure to take those procedures renders the rule void. Accordingly, any agency policy of general applicability that prescribes law or policy and imposes requirements on those to whom it applies and thereby fits the definition of a rule without first going through the rulemaking process is void as a rule. However, as noted by the Court in DPR, Bd. of Med. Ex. v. Barker, 428 So.2d 720, 722 (Fla. 1st DCA 1983);

   
   

   Our academic endeavors in attempting to label the action either rule or nonrule

   to determine whether or not it fell within Section 120.54(14) definition of a rule have now been largely discarded. There are, however, costs executed upon an agency which avoids the rulemaking

   procedure provided by Section 120.54, chief among them being that the agency may be required repeatedly to defend its

   non-rule policy in each case. State, Dept. of Administration v. Harvey, 356 So.2d

   323, 326 (Fla. 1st DCA 1977).

   
   

6. Accordingly, it is unnecessary to label the DHRS' scoring system in rating CON applicants for nursing home CONs a rule or nonrule policy. If a rule, it is void by reason of the DHRS' failure to follow the rulemaking procedures required by Section 120.54. If nonrule policy, a heavy burden is placed upon the agency to explicate this policy in the Section 120.57 hearing in which the agency attempts to use this nonrule policy.

ORDER

From the foregoing, it is concluded that the DHRS scoring system which is currently used to grade applicants in awarding certificates of need for nursing home beds has not been promulgated as a rule as required by Section 120.54 and does not have the imprimatur of a rule and, as a rule, is void.

DONE and ORDERED this 14th day of March, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1990.

Copies furnished to:

Gerald B. Sternstein, Esquire Post Office Box 2174 Tallahassee, Florida 32316-2174

Richard A. Patterson, Esquire Fort Knox Executive Center 2727 Mahan Drive

Suite 103

Tallahassee, Florida 32308

John L. Wharton, Esquire 2548 Blairstone Pines Drive Tallahassee, Florida 32301

Sam Power Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Carroll Webb Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300

Liz Cloud Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 90-000800RU

Orders for Case No: 90-000800RU