STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADVANTAGE THERAPY AND NURSING ) CENTER (BEVERLY HEALTH AND ) REHABILITATIVE SERVICES, INC.), )

)

Petitioner, )

)

vs. ) Case No. 97-1625RX

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

THIS CAUSE came before the undersigned for consideration of the Motion for Summary Final Order filed by the Respondent on April 14, 1997. A hearing was held on the motion before Patricia

1. Malono, the Administrative Law Judge assigned to this case, on April 30, 1997.

   APPEARANCES

   
   

   For Petitioner: Donna H. Stinson, Esquire

   BROAD AND CASSEL

   215 South Monroe Street Suite 400

   Post Office Drawer 11300 Tallahassee, Florida 32302

   
   

   For Respondent: Richard M. Ellis, Esquire

   Agency for Health Care Administration 2727 Mahan Drive, Building 3

   Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

   Whether the Petitioner is barred by the doctrine of res judicata from maintaining its challenge to rule 59A-4.128,

   Florida Administrative Code, which governs the evaluation and rating of nursing homes, as an invalid exercise of delegated legislative authority.

   PRELIMINARY STATEMENT

   
   

   On April 1, 1997, Advantage Therapy and Nursing Center (Beverly Health and Rehabilitative Services, Inc.)("Advantage Therapy") filed a Petition to Determine the Invalidity of a Rule, challenging the validity of rule 59A-4.128, Florida Administrative Code, which defines the procedures to be used by the Agency for Health Care Administration ("Agency") for evaluating and rating Florida nursing homes. On April 14, 1997, the Agency filed a Motion for Summary Final Order in which it pointed out that proposed rule 59A-4.128 had been found valid in Florida Health Care Association, Inc. v. Agency for Health Care Administration, DOAH Case Number 95-4367RP (1996), and argued that a challenge to the validity of existing rule 59A-4.128 should not be permitted, first, because the issues presented had been litigated in the challenge to the proposed rule and, second, because Advantage Therapy "misreads the pertinent portion of the rule and the statute under which it is promulgated."

   Advantage Therapy filed a Memorandum of Law in Opposition to the Motion for Summary Final Order on April 20, 1997, and the points raised therein have been duly considered. The Agency attached to its motion a copy of the Final Order in Florida Health Care Association, Inc. v. Agency for Health Care

   Administration, DOAH Case Number 97-4367RP (1996), and both parties made reference to this order throughout the hearing. This being the case, this Final Order will be given official recognition even though no formal request for such recognition was made.1 At the hearing, the Agency offered into evidence Movant's Exhibit 1, a brochure published by the federal government entitled "Survey, Certification and Enforcement of Skilled Nursing Facilities and Nursing Facilities, Pocket Reference Guide," and Exhibit 2, a copy of two skilled nursing facilities licenses issued to Advantage Therapy, one effective November 1, 1996, and one effective January 1, 1997. These exhibits were received into evidence with no objection.

   FINDINGS OF FACT

   
   

   Based on the representations of counsel at the hearing and on the entire record of this proceeding, the following findings of fact are made:

   1. Advantage Therapy and Nursing Center (Beverly Health and Rehabilitative Services, Inc.) is the licensee of a nursing home in Fort Pierce, Florida.

   2. Rule 59A-4.128, Florida Administrative Code, governs the evaluation and rating of nursing homes in Florida. The rule provides:

      59A-4.128 Evaluation of Nursing Homes and Rating System.

      1. The agency shall, at least every 15 months, evaluate and assign a rating to every nursing home facility. The evaluation and rating shall be based on the facility's

         compliance with the requirements contained in Sections 59A-4.100 through 59A-4.128, of this rule, Chapter 400, Part II and the requirements contained in the regulations adopted under the Omnibus Budget Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health Related Programs), Subtitle C (Nursing Home Reform), as amended and incorporated by reference.

      2. The evaluation shall be based on the most recent licensure survey report, investigations conducted by the AHCA and those persons authorized to inspect nursing homes under Chapter 400, Part II, Florida Statutes.

      3. The rating assigned to the nursing home facility will be either conditional, standard or superior. The rating is based on the compliance with the standards contained in this rule and the standards contained in the OBRA regulations. Non-compliance will be stated as deficiencies measured in terms of severity. For rating purposes, the following deficiencies are considered equal in severity: Class I deficiencies; Class II deficiencies; and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy. Further for rating purposes, the following deficiencies are considered equal in severity: Class III deficiencies; and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy with no actual harm.

         1. Class I deficiencies are those which

            present either an imminent danger, a substantial probability of death or serious physical harm and require immediate correction. Class II deficiencies are those deficiencies that present an immediate threat to the health, safety, or security of the residents of the facility and the AHCA establishes a fixed period of time for the elimination and correction of the deficiency. Substandard Quality of Care deficiencies are

            deficiencies which constitute either: immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm.

         2. Class III deficiencies are those which present an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies.

      4. A conditional rating shall be assigned to the facility:

         1. if at the time of relicensure survey, the facility has one or more of the following deficiencies: Class I; Class II; or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy; or

         2. if at the time of the relicensure survey, the facility has Class III deficiencies, or Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm and at the time of the follow-up survey, such deficiencies are not substantially corrected within the time frame specified by the agency and continue to exist, or

         3. new Class I or Class II or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are found at the time of the follow- up survey.

         4. A facility receiving a conditional rating at the time of the relicensure survey shall be eligible for a standard rating if:

            1. all Class I deficiencies, Class II deficiencies, and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are

               corrected within the time frame established by the AHCA and

            2. all Class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm are substantially corrected at the time of the follow-up survey. A facility receiving a conditional rating at the time of the relicensure survey shall not be eligible for a superior rating until the next relicensure survey.

      5. A standard rating shall be assigned to a facility, if at the time of the relicensure survey, the facility has:

         1. No Class I or Class II deficiencies and no Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy, and

         2. Corrects all Class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm within the time frame established by the AHCA.

      6. A superior rating shall be assigned to a facility, if at the time of the relicensure survey, the facility has received a standard rating and meets criteria for a superior rating through enhanced programs and services as contained in (7) of this Section.

      7. In order to qualify for a superior rating, the nursing facility must provide at least three enhanced programs or services which encompass the following areas:

         1. Nursing services.

         2. Dietary or nutritional services.

         3. Physical environment.

         4. Housekeeping and maintenance.

         5. Restorative therapies and self help activities.

         6. Social services.

         7. Activities and recreational therapy.

         In order to facilitate the development of special programs or facility wide

         initiatives and promote creativity, these areas may be grouped or addressed individually. In establishing the facility's qualification for a superior rating, the AHCA survey team will use the Rating Survey and Scoring Sheet, Form No. AHCA 3110-6007, Nov., 1994, incorporated by reference, and may be obtained from the Agency for Health Care Administration.

      8. Upon initial licensure, a licensee can receive no higher than a standard license. After six months of operation, the new licensee may request that the agency evaluate the facility to make a determination as to the degree of compliance with minimum requirements under Chapter 400, Part II, F.S., and this rule to determine if the facility can be assigned a higher rating.

      9. Nursing facilities will be surveyed on this Section of the rule beginning March 1, 1995.

1. Advantage Therapy filed a petition pursuant to Section 120.56(1) and (3), Florida Statutes (Supp. 1996), challenging the validity of existing rule 59A-4.128 and asserting in paragraph five of the petition:

   Rule 59A-4.128, F. A. C., as applied to the issuance of conditional licenses, is an invalid exercise of delegated legislative authority in that it is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in employees of the agency, and violates . . . [Section] 400.23(8)(h) which requires that the agency have uniform procedures in place for the evaluation of nursing homes.

   Advantage Therapy focuses its challenge on the Agency's alleged failure to interpret or apply the rule in a manner consistent with the federal rules relating to nursing homes adopted pursuant to the Omnibus Budget Reconciliation Act of 1987 and on alleged inconsistencies in the interpretation and application of the

   provisions of the rule by the Agency and by the various Agency survey teams which are responsible for identifying and classifying deficiencies in nursing homes.

2. In a Final Order entered July 16, 1996, Administrative Law Judge David M. Maloney concluded that proposed rule 59A-4.128 was not an invalid exercise of delegated legislative authority in a challenge brought by the Florida Health Care Association, Inc. Florida Health Care Association, Inc. v. Agency for Health Care Administration, DOAH Case Number 95-4367RP (1996). No appeal was taken from this Final Order.

3. The Florida Health Care Association's challenge to proposed rule 59A-4.128 was brought pursuant to Section 120.54(4), Florida Statutes (1995), which provided in subsection

   (a) that "any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority."

4. "Invalid exercise of delegated legislative authority" was defined in Section 120.52, Florida Statutes (1995), as follows:

   1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

      1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

      2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

      3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

      4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

      5. The rule is arbitrary or capricious.

         Florida Health Care Association's challenge to proposed rule 59A-

         
         

         4.128 was brought pursuant to this 1995 definition of "invalid exercise of delegated legislative authority."

5. Advantage Therapy's challenge to existing rule 59A-4.128 was brought pursuant to Section 120.56, Florida Statutes (Supp. 1996), which provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." Section 120.56(1)(a), Florida Statutes (Supp. 1996). Sections 120.56(2) and (3), Florida Statutes (Supp. 1996), include special provisions which apply to challenges of proposed rules and to challenges of existing rules, respectively.

6. In Section 120.52(8), Florida Statutes (Supp. 1996), the legislature added to the five bases included in Section 120.52(8), Florida Statutes (1995), two new bases for finding that a proposed or existing rule constitutes an invalid exercise of delegated legislative authority :

   1. The rule is not supported by competent substantial evidence; or

   2. The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

   
   

   Section 120.52(8), Florida Statutes (Supp. 1996). Advantage Therapy's rule challenge does not implicate either of these two new bases for finding that a proposed or existing rule is an invalid exercise of delegated legislative authority; rather, it asserts that "[t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Section 120.52(8)(d), Florida Statutes (1995 and Supp. 1996).2

7. The party challenging either a proposed or an existing rule pursuant to Sections 120.54(4) or 120.56, Florida Statutes (1995), was required to prove by a preponderance of the evidence that the proposed rule was an invalid exercise of delegated legislative authority. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 762 (Fla. 1st DCA 1978). In Section 120.56(2)(a), the legislature changed the allocation of the burden of proof in challenges to proposed rules, but no change in the allocation of the burden of proof is included in Section 120.56(3) with respect to challenges to existing rules.

8. Beverly Health and Rehabilitation Services, Inc., which does business as Advantage Therapy, is, and was at the time of

   the challenge to proposed rule 59A-4.128, a member of the Florida Health Care Association, Inc.

9. The language in proposed rule 59A-4.128 is identical to the language in existing rule 59A-4.128.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.56(1), Florida Statutes (Supp. 1996).

11. The issue which must be resolved in order to determine if Advantage Therapy's rule challenge should go forward is whether its challenge to existing rule 59A-4.128 is barred as a result of the Final Order entered in the Florida Health Care Association's challenge to proposed rule 59A-4.128.

12. "It is now well settled that res judicata may be applied in administrative proceedings." Thomson v. Department of Environmental Regulation, 511 So. 2d 989, 991 (Fla. 1987).

13. The Florida Supreme Court in Albrecht v. State, 444 So. 2d 8, 11-12 (Fla. 1984), described the doctrine of res judicata as follows:

    The general principle behind the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is absolute and puts to rest every justiciable, as well as actually litigated, issue. However, this principle only applies when the elements of res judicata are present and the doctrine is properly applied. When the second suit is upon the same cause of action and between the same parties as the

    first, res judicata applies. The first judgment is conclusive as to all matters which were or could have been determined. It has been well settled by the Court that several conditions must occur simultaneously if a matter is to be made res judicata: identity of the thing sued for; identity of the cause of action; identity of parties; identity of the quality in the person for or against whom the claim is made.

    (Citations omitted.) See also State, Department of Environmental Protection v. Burgess, 667 So. 2d 267, 269 (Fla. 1st DCA 1995)("For res judicata to act as a bar to subsequent relitigation [in an administrative proceeding], . . . there must be a final agency order in a prior proceeding.")

14. There is "identity of the thing sued for" by Advantage Therapy and the Florida Health Care Association. In its Petition to Determine the Invalidity of a Rule, Advantage Therapy seeks a determination of the validity of rule 59A-4.128. In Florida Health Care Association v. Agency for Health Care Administration, the association also sought a determination of the validity of proposed rule 59A-4.128. The Florida Health Care Association did not and Advantage Therapy does not seek a determination of the invalidity of a Section, subsection, or other portion of rule

    59A-4.128. It is, therefore, irrelevant for purposes of a res judicata analysis that the association focused its challenge on the procedures relating to superior ratings while Advantage Therapy focuses its challenge on the procedures relating to conditional ratings.

15. There is "identity of the cause of action" in the instant rule challenge and in the challenge to the proposed rule brought by the association. The only ground on which a proposed or an existing rule may be challenged is as an invalid exercise of delegated legislative authority. With the exception of the allocation of the burden of proof in a challenge to a proposed rule under the 1996 amendment to Chapter 120, the only differences between a challenge to a proposed rule and to an existing rule are procedural. See Sections 120.54(4) and 120.56, Florida Statutes (1995), and Section 120.56, Florida Statutes (Supp. 1996).

16. Additionally, in a rule challenge, the issue to be determined is whether the rule, either proposed or adopted, is valid on its face. In Fairfield Communities v. Florida Land and Water Adjudicatory Commission, 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988), the court reviewed the Final Order of an administrative hearing officer in a rule challenge proceeding and observed that "we are being asked to determine the facial validity of these two rules, not to determine their validity as applied to specific facts, or whether the agency has placed an erroneous construction on them." The court refused to speculate as to how the agency would interpret or apply the rules in "other unnamed proceedings," id. at 1015, and limited its holding to a determination of the validity of the rules "as written." Id.

17. The only issue which could be resolved in Advantage Therapy's rule challenge, therefore, is not whether the Agency's application and interpretation of rule 59A-4.128 is correct or permissible but whether rule 59A-4.128, on its face, is "vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in employees of the agency, and violates . . . [Section] 400.23(8)(h) which requires that the agency have uniform procedures for the evaluation of nursing homes." (Paragraph 5 of Petition to Determine Invalidity of a Rule.) Because the text of the proposed rule challenged by the association and of the existing rule challenged by Advantage Therapy are identical, the facial invalidity of the rule as it pertains to the issuance of conditional licenses could have been litigated in the challenge to the proposed rule.

18. Although the statutory definition of "invalid exercise of delegated legislative authority" was expanded by the legislature in the 1996 amendment to Section 120.52(8), the basis for Advantage Therapy's rule challenge was included in the definition of "invalid exercise of delegated legislative authority" in effect at the time the Florida Health Care Association brought its challenge to proposed rule 59A-4.128.

    See Section 120.52(8)(d), Florida Statutes (1995 and Supp. 1996). Therefore, the claim made by Advantage Therapy in the instant rule challenge could have been litigated in Florida Health Care Association v. Agency for Health Care Administration, and,

    consequently, there is "identity of the cause of action" stated by the Florida Health Care Association and by Advantage Therapy. See ICC Chemical Corp. v. Freeman, 640 So. 2d 92, 93 ("Res judicata applies to all matters actually raised and determined as well as all other matters which could properly have been raised and determined in the prior action, whether they were or not.")3

19. There is "identity of parties" in the rule challenges brought by the Florida Health Care Association and by Advantage Therapy. The adverse party in both actions is the Agency for Health Care Administration, the state agency which promulgated, enacted, and enforces rule 59A-4.128.

20. There is also "identity of parties" with respect to the Florida Health Care Association and Advantage Therapy. It is clear from the Final Order in Florida Health Care Association v. Agency for Health Care Association that the association's standing to bring a challenge to proposed rule 59A-4.128 was based on its status as a trade or professional association which "represents a majority of nursing homes in the state." Final Order, DOAH Case Number 95-4367RP, at 8.

21. In Florida Home Builders Association v. Department of Labor and Employment Security, 412 So. 2d 351, 352 (Fla. 1982), the Florida Supreme Court accorded a trade association "standing under Section 120.56(1) to challenge the validity of an agency rule on behalf of its members when that association fairly represents members who have been substantially affected by the

    rule." The court elucidated the reasons for allowing trade and professional associations standing to institute rule challenges "solely as the representative of its members" as follows:

    In our view, the refusal to allow this builders' association, or any similarly situated association, the opportunity to represent the interests of its injured members in a rule challenge proceeding defeats this purpose [expanding the public's access to the activities of governmental agencies] by significantly limiting the public's ability to contest the validity of agency rules. While it is true that the "substantially affected" members of the builders' association could individually seek determinations of rule invalidity, the cost of instituting and maintaining a rule challenge proceeding may be prohibitive for small builders. Such a restriction would also needlessly tax the ability of the Division of Administrative Hearings to dispose of multiple challenges based upon identical or similar allegations of unlawful agency action.

    Id. at 353. See also Department of Professional Regulation, Board of Dentistry v. Florida Dental Hygenist Ass'n, Inc., 612 So. 2d 646, 651 (Fla. 1st DCA 1993)(professional association had standing to represent its members in a challenge to a proposed rule.)

22. The court in Progressive American Insurance v. McKinnie, 513 So. 2d 748, 749 (Fla. 4th DCA 1987) considered the persons included in the "identity of parties element" of the doctrine of res judicata and concluded that they "include[], alternatively, ones in privity with actual parties, participants in the action having an interest but not technically parties, and

    persons virtually, though not actually, represented by the parties of record." Beverly Health and Rehabilitative Services, Inc., d/b/a Advantage Therapy and Nursing Center, was a member of the Florida Health Care Association at the time it brought the challenge to proposed rule 59A-4.128. It was, therefore, a "party" in the Florida Health Care Association's challenge to proposed rule 59A-4.128 for purposes of the doctrine of res judicata because it was in privity with, or at the least, "virtually represented" by, the association in that proceeding.

    See id.("A privy is one who is identified with the litigant in interest."); Gomez-Ortega v. Dorten, Inc., 670 So. 2d 1107, 1108- 09 (Fla. 3d DCA 1996)(class action suit by secondary purchasers of condominium units to determine enforceability of lease agreement barred by doctrine of res judicata because enforceability of lease agreement previously litigated by condominium association). Consequently, the "identity of parties" element of the doctrine of res judicata is met in this proceeding.

23. The element of "identity of the quality of the person for or against whom the claim is made" is satisfied in this case, as well. Advantage Therapy challenges the validity of rule 59A-

    4.128 as a substantially affected person because it received a conditional license rating from the Agency acting pursuant to the rule. The Florida Health Care Association challenged proposed rule 59A-4.128 on behalf of those of its members who would be

    substantially affected by the rule because they would be evaluated and rated by the Agency acting pursuant to the rule.

    In both rule challenges, Advantage Therapy, on its own behalf and as a member of the association, is aligned against the Agency.

24. All four elements of the doctrine of res judicata set out by the court in Albrecht are met with regard to Advantage Therapy's challenge to rule 59A-4.128. However, there is one other condition which must be satisfied in order for the doctrine of res judicata to be applicable in an administrative proceeding.

25. The court in Thomson v. Department of Environmental Regulation recognized that there must be a certain degree of flexibility in applying the doctrine of res judicata in administrative proceedings because "the principles of res judicata do not always neatly fit within the scope of administrative proceedings." 511 So. 2d at 991 Consequently, res judicata is applicable "unless it can be shown that since the earlier ruling thereon there has been a substantial change of circumstances relating to the subject matter with which the ruling was concerned sufficient to promote or prompt a different or contrary determination." Metropolitan Dade County Board of County Comm'rs v. Rockmatt, 231 So. 2d 41, 44 (Fla. 3d DCA 1970). See also Thomson, 511 So. 2d at 991("The proper rule in a case where a previous permit application has been denied is that res judicata will apply only if the second application is not supported by new facts, changed conditions or additional

    submissions by the applicant."); Holiday Inns, Inc. v, City of Jacksonville, 678 So. 2d 528, 530 (Fla. 1st DCA 1996)("The second hearing pertained to the same violations on the same piece of property, and there had been no substantial change in the parties legal status as to the subject property prior to the second hearing before the code enforcement board.")

26. The only circumstances relevant to Advantage Therapy's rule challenge which have changed since the Final Order was entered in the proposed rule challenge brought by the Florida Health Care Association is that proposed rule 59A-4.128 has been adopted by the Agency and applied to evaluate Advantage Therapy and assign its nursing home a conditional rating. A rule challenge is, however, restricted to a determination of whether, on its face, a rule is an invalid exercise of delegated legislative authority, as that term is defined in Section 120.52(8), Florida Statutes, and the text of rule 59A-4.128 is identical to the text of proposed rule 59A-4.128.

27. For all of these reasons, the doctrine of res judicata is properly applied in this administrative proceeding to bar relitigation of the validity of rule 59A-4.128. Accordingly, the Final Order entered in Florida Health Care Association, Inc. v. Agency for Health Care Administration, DOAH Case Number 95-4367RP (1996), in which the administrative law judge concluded that proposed rule 59A-4.128 was not an invalid exercise of delegated

legislative authority, is conclusive as to the issues raised in the Petition to Determine Invalidity of a Rule filed herein.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, the Petition to Determine Invalidity of a Rule filed by Advantage Therapy and Nursing Center (Beverly Health and Rehabilitative Services, Inc.) is dismissed.

DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1997.

ENDNOTES

1/ In addition, prior to the hearing, the Agency filed a copy of what is purportedly the entire transcript of the formal hearing in Florida Health Care Association, Inc. v. Agency for Health Care Administration. Although Advantage Therapy did not object to the Agency's filing this document, it was not relevant to resolution of the issue presented and was not consulted in preparing this order.

2/ In the 1996 amendment to Section 120.52(8), the legislature also added language after subsection (g) which defines the scope of an agency's authority to promulgate and adopt rules.

Advantage Therapy's rule challenge does not raise any issues related to this portion of the amended statute.

3/ To the extent that Advantage Therapy seeks in its Petition to Determine the Invalidity of a Rule to challenge the way in which the Agency interprets and applies provisions of rule 59A-4.128 or the implementation of policies which have not been adopted as rules, it may raise and litigate these issues in Beverly Health and Rehabilitative Services, Inc. d/b/a Advantage Therapy and Nursing Center v. Agency for Health Care Association, DOAH Case Number 96-5476. In this pending proceeding brought pursuant to Section 120.569, Florida Statutes (Supp. 1996), Advantage Therapy has challenged the Agency's decision to assign a conditional license rating to its nursing home in Fort Pierce, Florida.

COPIES FURNISHED:

Donna H. Stinson, Esquire BROAD & CASSEL

215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302

Richard M. Ellis, Esquire Agency for Health Care

Administration 2727 Mahan Drive

Fort Knox, Building III Tallahassee, Florida 32308

Douglas M. Cook, Director Agency for Health Care

Administration 2727 Mahan Drive

Fort Knox, Building III Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency for Health Care

Administration 2727 Mahan Drive

Fort Knox, Building III Tallahassee, Florida 32308

Sam Power, Agency Clerk Agency for Health Care

Administration

2727 Mahan Drive, Suite 3431 Fort Knox, Building III Tallahassee, Florida 32308

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: 97-001625RX

Orders for Case No: 97-001625RX