STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEASE HEALTH CARE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-2983RU

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

and )

) MORTON F. PLANT HOSPITAL, INC. ) and ALL CHILDREN'S HOSPITAL, ) and BAYFRONT MEDICAL CENTER, INC.)

)

Intervenors. )

)

SUMMARY FINAL ORDER

This matter came before the undersigned on a motion for summary judgment being filed on behalf of petitioner, Mease Health Care, Inc. (Mease). By its motion, Mease seeks the entry of a final order declaring a certain policy utilized by respondent, Department of Health and Rehabilitative Services (HRS), to be an unpromulgated rule and therefore invalid. Responses in opposition to the motion have been filed by HRS and intervenors, Morton F. Plant, Inc. (Plant) and Bayfront Medical Center, Inc. (Bayfront). Having considered the motion and responses thereto, as well as the record showing of the parties,1/ the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Mease Health Care, Inc. (Mease), is a private, not-for- profit acute care community hospital in Dunedin, Florida. It is located in District V, a health planning district established by respondent, Department of Health and Rehabilitative Services (HRS). Intervenors, Morton F. Plant Hospital, Inc. (Plant) and Bayfront Medical Center, Inc. (Bayfront), are acute care hospitals also located within District V. Mease has pending in Case Nos. 89-1652 and 89-4888 a challenge to HRS's fixed need pool determination for new cardiac catherization services and an application for a certificate of need (CON) authorizing it to establish a new inpatient cardiac catherization program in Dunedin, Florida. In the instant case, Mease has challenged an HRS policy as being an illicit rule.

   
   

2. Respondent is the state agency responsible for the administration of the Health Facility and Services Development Act. For the purpose of assisting it in administering the act, HRS has promulgated Rule 10-5.011(1)(e), Florida administrative Code (1989), which pertains to inpatient cardiac catherization services and defines the requirements for the establishment of such services.

3. Paragraph 8.c. of the rule contains the formula used for calculating fixed need pools for new inpatient cardiac catherization programs. The formula is: NN PCCPV - ACCPV - APP, where NN is the annual net program volume need, PCCPV is the projected adult cardiac catherization program volume, ACCPV is the actual adult cardiac catherization volume, and APP is the projected program volume for approved programs. This formula was applied by HRS to the September 1988 batching cycle, which was the first batching cycle after the rule became effective. For that cycle, HRS calculated NN to be -53 for District V. NN was therefore less than 300. Paragraph 8.d. of the rule provides the following relevant instructions on how the formula should be applied to batching cycles subsequent to September 1988:

   
   

   If NN is less than 300 in the first batching cycle after the rule becomes effective, the ACCPV value which is subtracted from the PCCPV will be the same value as ACCPV in the first batching cycle until the projected net need in a future batching cycle reaches a program volume of 300 or more. . .

   
   

4. For the March and September 1989 batching cycles, which were the two batching cycles immediately subsequent to the first batching cycle after the rule became effective, HRS did not keep the ACCPV value constant, "or the same .

   . . as in the first batching cycle", even though NN was "less than 300 in the first batching cycle." Put another way, in all batching cycles after September 1988 HRS has recalculated ACCPV even though in the first batching cycle NN was a negative number and therefore was less than 300. HRS's affidavit confirms that this is the manner in which ACCPV has been calculated in all cases since the adoption of the rule. Since the policy has been consistently used in the above manner in all cases, creates rights and requires compliance, and is not apparent from a literal reading of the rule, the policy necessarily constitutes a rule.

   There is no dispute that the policy has not been formally adopted as a rule.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989) and Rule 221-6.030, Florida Administrative Code (1989).

   
   

6. Initially, it is noted that while Mease styles its motion as a motion for summary judgment, the undersigned has treated it as a motion for summary final order under Rule 221- 6.030, Florida Administrative Code (1989). That rule provides in part as follows:

   
   

   221-6.030 Summary Final Order,

   1. Any party to a proceeding in which a Hearing Officer of the Division has final order authority may move for summary final order, whenever there is no genuine issue as to any material fact. The motion made be accompanied by supporting affidavits. All other parties may, within seven days of service, file a response in opposition, With or without supporting affidavits.

      * * *

      Thus, in order to obtain a summary final order under the foregoing rule, a party must make a record showing that "there is no genuine issue as to any material fact" and that it is entitled to judgment as a matter of law on the undisputed facts.

      
      

7. Mease alleges that, in HRS's review of cardiac catherization laboratory applications, HRS has consistently determined the fixed need pool for such services in a manner which is contrary to the plain and unambiguous language in the rule. As such, Mease contends that the agency action is a rule, not duly promulgated, and must be declared invalid.

   
   

8. Two material facts must be established in order to grant the requested relief. First, it must be established that the agency statement is a rule, and secondly, it must be shown that the rule has not been adopted by the agency pursuant to chapter 120. See, e.g., Lakeland Regional Medical Center v. DHRS,

   11 FALR 6463 (DOAH, November 15, 1989). Within the context of rule 221- 6.030(1), it follows that for Mease to be entitled to the requested relief, it must be shown that there. is no genuine issue as to either material fact.

   
   

9. Following these principles, it is concluded that the record supports a finding that the policy is a rule within the meaning of the law. In so concluding', the undersigned has considered the argument of intervenors that the agency action is merely an interpretation of the existing rule and not incipient policy. To be sure, the distinction between a rule interpretation and incipient policy is blurred, and arguments in favor of one or the other can be readily made. However, to qualify as an interpretation of a rule and not incipient policy, an agency's action must simply reiterate the language in the rule and be readily apparent from its literal reading. St. Francis Hospital, Inc. v. DHRS,

553 So.2d 1351 (Fla. 1st DCA 1989). In this case, while the rule, in plain language, advises the user that HRS will hold the ACCPV value constant in subsequent batching cycles if NN is less than 300 in the first batching cycle, HRS has recalculated the ACCPV value even though NN was less than 300. Because the policy has all of the attributes of a rule, and has not been formally adopted, it constitutes an invalid exercise of delegated legislative authority within the narrow context of this proceeding. This is not to say that the policy cannot be used by HRS in Case Nos. 89-1652 and 89-4888 and other similar cases, but HRS is obliged to show the reasonableness and factual accuracy of its policy in all such cases. It is, therefore,

ORDERED that the agency's unwritten policy of not holding ACCPV constant in subsequent batching cycles where NN was less than 300 in the first batching cycle after rule 10- 5.011(1)(e) became effective is declared to be an unpromulgated rule and thus an invalid exercise of delegated legislative authority.

DONE AND ORDERED this 10th day of September, 1990, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 10th day of September, 1990.

ENDNOTE

1/ The record consists of an affidavit, excerpts from two depositions, and a state agency action report submitted by Mease, and opposing affidavits filed by HRS and Plant, respectively.

NOTICE OF RIGHT TO JUDICIAL APPEAL

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 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 THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire Patricia A. Renovitch, Esquire

P. O. Box 6507 Tallahassee, FL 32314-6507

Edgar Lee Elzie, Jr., Esquire

P. O. Box 82

Tallahassee, FL 32301-0082

Steven A. Ecenia, Esquire

P. O. Box 1877 Tallahassee, FL 32302-1877

Cynthia S. Tunnicliff, Esquire

P. O. Drawer 190 Tallahassee, FL 32302

Gerald B. Sternstein, Esquire

P. O. Box 2174 Tallahassee, FL 32302

V. Carroll Webb, Executive Director

Joint Administrative Procedures Committee Room 120, Holland Building

Tallahassee, FL 32399-1400

Liz Cloud, Chief

Bureau of Laws and Administrative Code Room 1802, The Capitol

Tallahassee, FL 32399-0250

Docket for Case No: 90-002983RU

Orders for Case No: 90-002983RU