STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EXCLUSIVE INVESTMENT MANAGEMENT ) AND CONSULTANTS, INC., d/b/a ) NEW DIRECTION COUNSELING, a )

Florida Corporation, )

)

Petitioner, )

)

vs. ) Case Nos. 95-5370

) 97-4744F

STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

Respondent, )

)

FINAL ORDER IN CASE NO. 97-4744F

An administrative hearing was conducted on February 2, 1998, in Tallahassee, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: James A. Burzee, Esquire

901 Euclid Avenue

Orlando, Florida 32803-0722

For Respondent: Gordon B. Scott, Esquire

Agency For Health Care Administration

2727 Mahan Drive Fort Knox Number 3

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to attorney's fees and costs under Section 57.111, Florida Statutes (1995), as the prevailing party in Division of Administrative Hearings ("DOAH") Case No. 95-5370. (All chapter and section references are to Florida Statutes (1995) unless otherwise stated.)

PRELIMINARY STATEMENT

The administrative hearing in DOAH Case No. 95-5370 was conducted on May 29, 1996. The issue there was whether Respondent should terminate Petitioner's Medicaid provider number because Petitioner was allegedly not under contract to HRS within the meaning of Section 409.906(8).

The Recommended Order entered on August 15, 1996, recommended that Respondent enter a Final Order finding that Petitioner was under contract to HRS, within the meaning of Section 409.906(8), and maintaining Petitioner's Medicaid provider number in effect. On October 24, 1996, Respondent entered a Final Order finding that Petitioner was not under contract to HRS and canceling Petitioner's Medicaid provider numbers.

On September 18, 1997, the First District Court of Appeal reversed Respondent's Final Order in part, affirmed in part, and remanded the case for further proceedings. Exclusive Investment Management & Consultants, Inc. d/b/a New Direction Counseling, a Florida Corporation vs. State of Florida, Agency For Health Care Administration, 699 So. 2d 311 (Fla. 1st DCA 1997). On

October 15, 1997, Petitioner filed a Petition For Award of Attorney's Fee and Costs. The petition was assigned Case No. 97- 4744F and consolidated with the remand of Case No. 95-5370 on January 12, 1998.

In Exclusive Investment, the First District Court of Appeal reversed Respondent's cancellation of Petitioner's provider

numbers in the Final Order and remanded the case to the agency. Exclusive Investment, 699 So. 2d at 313. The court found that Respondent's requirement for a contract with ADM, as a condition to enrollment in the Medicaid program, was incipient nonrule policy because it represented a change in Respondent's prior policy. The court held:

We reverse as to the issue asserting that AHCA erred in construing the statue to require that a mental health services provider have an annual contract with ADM, in that such interpretation constituted incipient, nonrule policy which AHCA did not explain during the formal hearing, but we affirm as to the remaining points.

* * *

Accordingly, the final order cancelling the Medicaid provider number is reversed and the case remanded for the purpose of permitting [Respondent] either to explain its incipient policy requiring a mental health service provider to have an annual contract with ADM as a precondition to the provider's maintenance of its Medicaid provider number, or for [Respondent], in turn, to remand for further proceedings as to this issue.

Exclusive Investment, 699 So. 2d at 312 and 313.

On October 17, 1997, Respondent issued a Notice of Remand referring the matter to DOAH to conduct a hearing to determine whether Respondent can adequately explain its incipient policy. At the administrative hearing, the parties stipulated that Respondent has the burden of proof in connection with the remand, and that Petitioner has the burden of proof concerning the petition for attorney's fees. The parties further agreed that separate orders should be issued for the Recommended Order in the case on remand and for the Final Order in the case on attorney's

fees. Any issues pertaining to the case on remand are addressed in a separate Recommended Order issued on even date herewith.

At the administrative hearing in the case on attorney's fees, neither party presented the testimony of any witnesses. The parties stipulated to the fees and costs set forth in the Affidavit of Attorney's Fee and Costs attached to the Petition for Award of Attorney's Fee and Costs.

A transcript of the hearing was filed on February 13, 1998. The parties timely filed their proposed final orders ("PFOs") on February 20, 1998.

FINDINGS OF FACT

1. Pursuant to the stipulation of the parties at the administrative hearing, the only issue for determination is whether Petitioner is a prevailing party within the meaning of Section 57.111(3)(c). In relevant part, Petitioner is a prevailing party if:

   1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired . . . .

   2. A final order has not been entered in favor of Petitioner. On October 24, 1996, Respondent entered a Final Order in favor of Respondent rather than Petitioner. The First District Court of Appeal reversed Respondent's Final Order in part, affirmed in part, and remanded the case for further proceedings. Exclusive Investment, 699 So. 2d at 313.

   3. The time for seeking judicial review of a final order has not expired. The Recommended Order in the case on remand was entered on the same date with this Final Order. The Recommended Order found that Respondent did not adequately explain its incipient policy and recommended that Respondent enter an order in favor of Petitioner.

   4. The time for judicial review will not expire until the time prescribed in Sections 120.57(1)(i) and (k) and Section 120.68(2)(a), Florida Statutes (1997), for a final order and any appeal has run. If and when a final order in favor of Respondent has been entered, Petitioner may file a petition for attorney fees and costs pursuant to Section 57.111. Until then, such a petition, including the petition at issue in this proceeding is not ripe for determination.

      CONCLUSIONS OF LAW

   5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

   6. The burden of proof is on Petitioner. The party seeking to prove the affirmative of an issue has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

      Petitioner must show by a preponderance of the evidence that it is entitled to attorney's fees and costs set forth in the affidavit attached to the petition for fees and costs.

   7. Petitioner failed to satisfy its burden of proof. Pursuant to the stipulation of the parties, the only issue for determination in this proceeding is whether Petitioner is a prevailing party within the meaning of Section 57.111(3)(c). For reasons stated in the Findings of Fact and not repeated here, Petitioner failed to show that it is a prevailing party.

ORDER

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

ORDERED that Petitioner's request for fees and costs pursuant to Section 57.111 is denied as not ripe for determination.

DONE AND ORDERED this 17th day of April, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1998.

COPIES FURNISHED:

Edward Feaver, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Gordon B. Scott, Esquire

Agency for Health Care Administration Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308-5403

James A. Burzee, Esquire

58 West Michigan Street, Suite 200 Orlando, Florida 32802-0722

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 the 30 days of rendition of the order to be reviewed.

Docket for Case No: 97-004744F

Orders for Case No: 97-004744F