STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HERNANDO-PASCO HOSPICE, INC., )
)
Petitioner, )
)
vs. )
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent, )
)
and )
) LIFEPATH, INC., d/b/a LIFEPATH ) HOSPICE and FLORIDA HOSPICES ) AND PALLIATIVE CARE, INC., )
)
Intervenors. )
Case No. 01-4460RX
)
FINAL ORDER
On August 20, 2002, a formal administrative hearing in this case was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Hernando-Pasco Hospice, Inc.:
Frank P. Ranier, Esquire Sternstein, Rainer & Clarke, P.A.
101 North Gadsden Street Tallahassee, Florida 32301-7606
For Agency for Health Care Administration:
Michael O. Mathis, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403
For Lifepath Hospice and Palliative Care, Inc.:
H. Darrell White, Esquire McFarlain & Cassedy, P.A.
305 South Gadsden Street Post Office Box 2174
Tallahassee, Florida 32316-2174 For Florida Hospices and Palliative Care, Inc.:
Robert D. Newell, Esquire Newell & Terry, P.A.
817 North Gadsden Street Tallahassee, Florida 32303
STATEMENT OF THE ISSUE
The issue in the case is whether Rule 59C-1.0355(4)(d), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
On November 16, 2001, Hernando-Pasco Hospice, Inc. (HPH) filed a Petition to Challenge Existing Rule Pursuant to Section 120.56, Florida Statutes. In the Petition, HPH asserts that depending on how it is interpreted or applied, Rule 59C-1.0355(4)(d), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
On November 21, 2001, Lifepath, Inc. (Lifepath) filed a Petition to Intervene that was granted by Order entered on December 7, 2001.
On December 7, 2001, this case was consolidated with the related challenge to the CON application (DOAH Case Nos. 00- 3203CON and 00-3205CON) and to a second rule challenge case (DOAH Case No. 02-2703RU). At the request of the parties, the related cases are addressed in three separate orders.
On May 15, 2002, Florida Hospices and Palliative Care, Inc. (FHPC) filed a Petitioner to Intervene that was granted by Order dated May 23, 2002.
The case was transferred to the undersigned Administrative Law Judge on July 12, 2002.
During the proceeding, HPH presented the testimony of four witnesses and had Exhibit number 56 admitted into evidence.
Lifepath presented the testimony of two witnesses, and had Exhibit number 112 admitted into evidence. FHPC presented the testimony of one witness and had Exhibits numbered 1 through 5 admitted into evidence. The Agency for Health Care Administration (AHCA) presented no testimony or exhibits.
A transcript of the hearing was filed on October 10, 2002.
The parties filed Proposed Final Orders on January 6, 2003.
FINDINGS OF FACT
HPH is an applicant for a Certificate of Need (CON) to provide hospice services in Service Area 6A.
AHCA is the state agency charged with the responsibility for regulation of the CON program and the regulation of hospices in the State of Florida.
Lifepath is currently the sole hospice service provider licensed to operate in Service Area 6A. Lifepath is challenging AHCA's proposed award of a CON to HPH to provide hospice services in Service Area 6A. Lifepath contends that invalidation of the Rule would eliminate one of the requirements that HPH must meet in order to enter the hospice market in Service Area 6A.
FHPC is an association representing the hospice industry in the State of Florida. Insofar as is relevant in this proceeding, FHPC represents its membership on issues on state regulatory matters. All 38 licensed hospice providers in Florida are members of FHPC.
FHPC members assert that invalidation of the cited Rule would remove the requirement that an applicant for issuance of a CON under "special circumstances" demonstrate the existence of an underserved population or county, and would thereby adversely impact the association's membership by broadening the range of "special circumstances." FHPC asserts that invalidation of the
Rule could result in proliferation of hospice providers where there is no numeric need for additional hospice providers as calculated by ACHA. The members of FHPC conferred and a majority of the membership determined that it should intervene in the proceeding.
Rule 59C-1.0355(4)(d), Florida Administrative Code, provides as follows:
(d) Approval Under Special Circumstances. In the absence of numeric need identified in paragraph (4)(a), the applicant must demonstrate that circumstances exist to justify the approval of a new hospice. Evidence submitted by the applicant must document one or more of the following:
That a specific terminally ill population is not being served.
That a county or counties within the service area of a licensed hospice program are not being served.
That there are persons referred to hospice programs who are not being admitted within 48 hours (excluding cases where a later admission date has been requested). The applicant shall indicate the number of such persons.
HPH asserts that the potential reasons for the invalidity of the Rule are contingent on interpretation and application of the Rule. As set forth in the Petition filed by HRH:
If the subsection constitutes a limitation on what special circumstances showings can be made, then the Agency has
exceeded its grant of rulemaking authority as defined in Section 120.52(8)(b), Florida Statutes.
If the subsection works as a limitation on the special circumstances showings which could be in the CON Case, then the Rule enlarges, modifies or contravenes the specific provisions of law implemented as described in Section 120.52(8)(c), Florida Statutes.
If the subsection operates to limit or curtail the special circumstances showing which can be made in the CON case, then the rule is arbitrary and capricious and not supported by substantial competent evidence as described in Section 120.52(8)(e) and (f), Florida Statutes.
If the interpretation suggested by Lifepath for the subsection is to be utilized, then there does not exist any grant of rulemaking authority to adopt such interpretation or limitation for demonstrating special circumstances, and constitutes an invalid exercise of delegated legislative authority as described in Section 120.52(8), Florida Statutes.
The evidence fails to establish that AHCA interprets the challenged Rule as a limitation of what special circumstances showing can be made in an application or during a hearing. There is no evidence that the cited Rule restricts an applicant from showing whatever "special circumstance" an applicant believes justifies the issuance of a CON in the absence of numeric need.
The cited Rule does not limit the information an applicant for a "special circumstances" CON may provide to AHCA
or offer at hearing. The cited Rule does not limit or curtail the reasons for which AHCA may determine an award of a "special circumstances" CON to be appropriate.
The challenged Rule does no more than require an applicant to document a lack of availability or access to hospice services where the applicant seeks a CON when there is no numeric need for an additional hospice. The Rule requires that such documentation identify an alleged lack of service on the basis of the type of under-served patients, geographic availability, or timeliness of access.
The cited Rule requires only that, in the absence of numeric need, an applicant be able to document that some identifiable demand for hospice services is unmet. Assuming an applicant can identify an unmet demand for hospice services, the applicant can thereafter provide whatever information or documentation it chooses to offer in support of the pending application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.56, Florida Statutes.
The Petitioner asserts that, depending on several suggested interpretations, Rule 59C-1.0355(4)(d), Florida
Administrative Code, is an invalid exercise of delegated legislative authority.
In the absence of a statutory directive to the contrary, the Petitioner has the burden in a challenge to an existing rule under Section 120.56, Florida Statutes, of establishing by a preponderance of evidence that the cited Rule is an invalid exercise of delegated legislative authority. Dravo Basic Materials Co., Inc., v. Department of Transportation, 602 So. 2d 632 (Fla. 2d DCA 1992); Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778, (Fla. 1st DCA 1981). The Petitioner has failed to meet the burden.
Section 120.52(8), Florida Statutes, in relevant part provides as follows:
(8) "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 of the following applies:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
* * *
The rule is arbitrary or capricious;
The rule is not supported by competent substantial evidence;
The evidence fails to establish that Rule 59C- 1.0355(4)(d), Florida Administrative Code, is an invalid exercise of delegated legislative authority. The evidence fails to establish that AHCA has exceeded its grant of rulemaking. The evidence fails to establish that the Rule enlarges, modifies, or contravenes the specific law implemented, that the Rule is arbitrary or capricious, or that the Rule is not supported by competent, substantial evidence.
The authorizing statute need not be detailed. The question is whether the authorizing statute contains a specific grant of legislative authority for the Rule, not whether the grant is specific enough. Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 808 So. 2d 243, (Fla. 1st DCA 2002).
Authority for the Rule is generally found at
Section 408.043(2), Florida Statutes, which requires that when an application for a hospice CON is made, the determination must be made on the basis of the need for and availability of such services.
More specific authority for the cited Rule is set forth at Section 408.034(3), Florida Statutes, which states that
AHCA:
shall establish, by rule, uniform need methodologies for health services and health facilities. In developing uniform need methodologies, the agency shall, at a minimum, consider the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, geographic accessibility, and market economics.
The Rule requires that an applicant for a "special circumstances" CON demonstrate the existence of any one of three factors. The three factors in the Rule are specifically authorized by Section 408.034(3), Florida Statutes.
The Rule addresses the health status of the population and service use patterns by permitting an applicant to document that a specific terminally ill population is not being served.
The Rule addresses geographic accessibility by permitting an applicant to document that a county or counties are not being served.
The Rule both addresses service use patterns, standards and trends, geographic accessibility, and market economics by permitting an applicant to document a problem with the timely availability of services.
Essentially HPH has, in large part, based its application for CON on the fact that Lifepath is the sole
licensed hospice serving Service Area 6A. Section 408.043(2), Florida Statutes, provides, in part, as follows:
When an application is made for a certificate of need to establish or to expand a hospice, the need for such hospice shall be determined on the basis of the need for and availability of hospice services in the community. The formula on which the certificate of need is based shall discourage regional monopolies and promote competition.
There is no definition of what "formula" is being referenced in the statute. The only actual formula set forth in the Rule is the mathematical calculation pursuant to Rule 59C- 1.0355(4)(a), Florida Administrative Code, that results in determination of whether a numeric need exists.
HPH asserts that Lifepath's status as the sole licensed hospice in Service Area 6A fails to meet the requirement that the "formula . . . discourage regional monopolies and promote competition;" however HPH has not challenged the hospice CON rules on that basis. Accordingly, the question of whether Rule 59C-1.0355, Florida Administrative Code, meets the requirements of Section 408.043(2), Florida Statutes, is not at issue in this rule challenge proceeding.
FINAL ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that the Hernando-Pasco Hospice, Inc., Petition for Formal Administrative Hearing to Challenge Agency Rules is DISMISSED.
DONE AND ORDERED this 17th day of March, 2003, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2003.
COPIES FURNISHED:
John F. Gilroy, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5403
Frank P. Rainer, Esquire Sternstein, Rainer & Clarke, P.A.
101 North Gadsden Street Tallahassee, Florida 32301-7606
H. Darrell White, Esquire McFarlain & Cassedy, P.A.
305 South Gadsden Street Post Office Box 2174
Tallahassee, Florida 32316-2174
Michael O. Mathis, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403
Robert D. Newell, Esquire Newell & Terry, P.A.
817 North Gadsden Street Tallahassee, Florida 32303
Carroll Webb, Executive Director
Jt. Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32399-1300
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116
2727 Mahan Drive
Tallahassee, Florida 32308
Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive
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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 17, 2003 | DOAH Final Order | Rule 59C-1.0355(4)(d), Florida Administrative Code, is not an invalid exercise of delegated legislative authority. |
