STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC.,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent,
and
ST. VINCENT'S MEDICAL CENTER, INC., and ST. LUKE'S HOSPITAL ASSOCIATION, d/b/a ST. LUKE'S HOSPITAL,
Intervenors.
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FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, David M. Maloney, held a final hearing in the above-styled case on March 14, 2002, in Tallahassee, Florida.
APPEARANCES
For Petitioner: R. Terry Rigsby, Esquire
215 South Monroe Street, Suite 440 Tallahassee, Florida 32301
and
Donna H. Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
For Respondent Agency for Health Care Administration:
John F. Gilroy, III, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Building Three, Suite 3431 Tallahassee, Florida 32308-5403
For Respondent St. Luke's Hospital Association, d/b/a St. Luke's Hospital:
Michael J. Cherniga, Esquire Sonya C. Penley, Esquire Greenberg Traurig, P.A.
101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302
For Respondent St. Vincent's Medical Center, Inc.:
Stephen C. Emmanuel, Esquire Michael J. Glazer, Esquire Ausley & McMullen
227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
Whether Section (2) of Rule 59C-1.012(2), Florida Administrative Code (the "CON Administrative Hearing Procedures Rule" or the "Rule") constitutes an invalid exercise of delegated legislative authority?
Whether Section (2) of the Rule, in effect, was repealed July 1, 1998, by the adoption of the Uniform Rules of Procedure?
PRELIMINARY STATEMENT
On February 15, 2002, Southern Baptist Hospital of Florida, Inc. ("Baptist"), filed a petition with the Division of Administrative Hearings. Baptist's petition seeks a determination that Rule 59C-1.012(2), Florida Administrative Code, a rule of the Agency for Health Care Administration ("AHCA" or the "Agency") that governs, in part, administrative procedures related to certificates of need, is an invalid exercise of delegated legislative authority. Furthermore, it alleges that Section (2) of the Rule was repealed by operation of law in 1998 because it conflicts with the Uniform Rules of Procedure adopted by the Administration Commission pursuant to legislative mandate.
On February 19, 2002, the undersigned was designated as the administrative law judge to conduct the proceedings. On the same date, the Division of Administrative Hearings notified the Bureau of Administrative Code at the Department of State of the existence of Baptist's petition and provided it with a copy.
Also on February 19, 2002, St. Vincent's Medical Center, Inc. ("St. Vincent's"), filed a petition in support of its intervention in the proceeding. One day later, St. Luke's Hospital Association, d/b/a St. Luke's Hospital ("St. Luke's")
filed a petition in support of its intervention in the proceeding.
A Notice of Hearing was issued on February 25, 2002. It set the final hearing for March 14, 2002. Simultaneously, an Order of Pre-Hearing Instructions was issued to the parties.
The petitions for intervention of St. Vincent's and
St. Luke's were granted subject to proof of standing at hearing on March 1, 2002. On March 6, 2002, St. Vincent's filed a request for official recognition. It was granted on March 13, 2002.
The next day, as scheduled, the final hearing was held with all four parties (Baptist, AHCA, St. Vincent's and St. Luke's) participating. At the March 14 hearing, Baptist presented the testimony of two witnesses and submitted 15 exhibits into evidence. Other than Baptist Exhibit 6, which was withdrawn, all were received.
The Agency presented the testimony of one witness and offered one exhibit which was admitted into evidence.
St. Vincent's adopted the testimony of AHCA's witness and the AHCA exhibit and offered one exhibit of its own, marked as
St. Vincent's No. 1. The exhibit was rejected but proffered by both St. Vincent's and St. Luke's. St. Luke's offered no evidence (other than to join in the proffer of the St. Vincent's exhibit) but entered into a joint stipulation of facts with the
other parties. Official recognition was taken of two exhibits. They were marked OR 1 and OR 2.
The parties agreed to file proposed orders on Monday, April 8, 2002. A request for an extension of time until Wednesday, April 10, 2002, for proposed orders to be filed was granted. Baptist's proposed order and a joint order filed by St. Vincent's, St. Luke's and AHCA were timely filed.
A copy of the transcript was filed with the Division of Administrative Hearings on March 28, 2002, making this final order (pursuant to statute, unless the request for an extension of time to file proposed orders waived the statutory time requirement) due for rendition April 26, 2002.
FINDINGS OF FACT
The Right to a Comparative Hearing
Section (2) of the CON Administrative Procedures Rule provides a method by which a co-batched applicant whose CON application has been approved in a proposed decision by AHCA and then challenged by another party may invoke the right to a comparative hearing.
The right to a comparative hearing in CON proceedings has as its source due process considerations found by the United States Supreme Court in a federal case that did not involve CONs but in a context that shared with the CON arena the need for
comparative review: Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S. Ct. 148, 90 L.ED. 108 (1945).
These due process considerations have been described as follows:
The so-called Ashbacker doctrine, enunciated by the Court has been adopted in Florida.
When the decision on one application will substantially prejudice other simultaneously pending applications because all applicants are competing for a franchise to serve a market that only one of them in practical effect will be given authorization to serve the applications are mutually exclusive. In this situation, any of the applicants may request a comparative hearing in which the merits of all applications will be tried together and against each other.
Section 2.32, Boyd, Overview of the Administrative Procedure Act, Florida Administrative Practice, Florida Bar, 6th Ed. (2001), p. 2-38.
The Ashbacker doctrine has been applied by Florida Courts to CON proceedings involving co-batched applicants. See Bio-Medical Applications of Clearwater, Inc. v. Dept. of Health & Rehabilitative Services, 370 So. 2d 19 (Fla. 2d DCA 1979); Bio-Medical Applications of Ocala, Inc. v. Dept. of Health & Rehabilitative Services, 374 So. 2d 88 (Fla. 1st DCA 1979); and South Broward Hospital District v. Dept. of Health & Rehabilitative Services, 385 So. 2d 1094 (Fla. 4th DCA 1980).
In the Second DCA's Bio-Medical decision, above, the Court found a due process right in co-batched applicants to
comparative hearings involving the other co-batched applicants and recognized the flexibility of the Agency's predecessor, HRS to devise "administrative procedures [that] will be promulgated to deal with administrative problems in affording comparative hearings, if any such problems are anticipated." Bio-Medical Applications of Clearwater, Inc., above, at 25, e.s.
The right to a comparative hearing in CON proceedings has been codified in statute. Section 408.039(5)(c), Florida Statutes, provides, "only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications."
Section 408.039(5)(c), Florida Statutes, is among the statutes implemented by the CON Administrative Procedures Rule. Section (2) of the Rule is the provision at issue in this
proceeding.
The Parties
Baptist is a licensed hospital located in Duval County, Florida. In the second batching cycle for 2001, Baptist applied to the Agency for Health Care Administration (the "Agency" or "AHCA") for a certificate of need ("CON") to establish a new 92- bed satellite hospital also in Duval County. The CON was preliminarily awarded by AHCA in a proposed decision contained in a State Agency Action Report (the "SAAR") issued December 14, 2001.
The Agency for Health Care Administration is responsible for administering the certificate of need program under the Health Facility and Services Development Act, Sections 408.031-408.045, Florida Statutes. It promulgated the Rule with which this proceeding is concerned: Rule 59C-1.012, Florida Administrative Code.
St. Vincent's and St. Luke's, like Baptist, are licensed hospitals located in Duval County, Florida. Also like Baptist, the two are the beneficiaries of proposed decisions in the SAAR although St. Vincent's, as explained below, was not as successful preliminarily as it had hoped during the events that precipitated this rule challenge.
Precipitating Events
A number of other applications were co-batched with Baptist's application in the second 2001 batching cycle. Three of the other co-batched applications were filed by St. Vincent's and St. Luke's. St. Luke's application was for a replacement hospital. St. Vincent's filed two applications, one a partial application for a 135-bed hospital; the other a full application for a 170-bed hospital, both to be located in the facility St. Luke's would leave if it is ultimately successful in its attempt to gain approval for the replacement hospital.
Following review and evaluation of the applications, AHCA issued its SAAR and notices of intent on December 14, 2001.
A SAAR sets forth in writing AHCA's findings of fact and determination upon which decisions are made with regard to CON applications. If there are no challenges filed timely to any of the decisions in the SAAR, the proposed decisions in the SAAR become final agency action. If there is a challenge then all of the action of AHCA in the SAAR remains preliminary pending the outcome of further administrative proceedings although, as more fully explained below, there are occasions when a decision in a SAAR is challenged but nonetheless it or other decisions are severed from the SAAR. Upon severance, they become final agency action while administrative proceedings continue with regard to other decisions contained in the SAAR.
In the December 14, 2001, SAAR, the Agency explained the four proposed decisions with regard to the four co-batched applications of the three hospitals in this proceeding. The Agency approved Baptist's application for a 92-bed acute care satellite hospital, granted St. Vincent's partial application for a new 135-bed acute care hospital, and granted St. Luke's application for a new replacement hospital. But it denied St. Vincent's full application for a new 170-bed acute care hospital.
Two weeks after the issuance of the SAAR, on December 28, 2001, AHCA published its notices of intent. The
publication informed the public of AHCA's proposed decisions on
the four co-batched applications as announced in the SAAR. In accord with the requirement of Section 408.039(4)(c), Florida Statutes, the notices were published in the Florida Administrative Weekly (Vol. 27, No. 52). With regard to providing a point of entry into additional administrative proceedings and in accord with Section 408.039(5), the publication stated:
A request for administrative hearing, if any, must be made in writing and must be actually received by this department within
21 days of the first day of publication of this notice in the Florida Administrative Weekly pursuant to Chapter 120, Florida Statutes, and Chapter 59C-1, Florida Administrative Code.
On the twenty-first day after publication, Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville ("Memorial"), an existing provider of acute care hospital services in Duval County, filed a petition challenging AHCA's preliminary approval of St. Vincent's partial application. On the same date, January 18, 2002, St. Vincent's filed a petition challenging the preliminary denial of its full application for a new 170-bed hospital. No party challenged the decision to issue a certificate of need to Baptist or St. Luke's within the twenty-one day period set forth in the notice.
Thirty-five days after publication of the proposed decisions, and fourteen days after the filing of the Memorial
and St. Vincent's petitions but within the time period allowed for by Section (2) of the Rule, St. Vincent's filed a third petition related to the co-batched applications. This petition of St. Vincent's invoked its right to a comparative hearing in which all approved applications, including Baptist's, would be at issue.
The second of St. Vincent's two petitions was filed well beyond the 21-day period provided by AHCA as a point of entry into administrative proceedings for challenging decisions announced in the SAAR. The authority for filing the petition later than the 21-day period provided for in AHCA's December 28, 2001, notice is the object of this proceeding: Section (2) of the CON Administrative Hearing Procedures Rule.
The Rule and its Development
Rule 59C-1.012, Florida Administrative Code, is entitled "Administrative Hearing Procedures." It is one of two chapters of AHCA Rules in Volume 59C of the Florida Administrative Code that appear under the caption, "CERTIFICATE OF NEED." See Volume 59C, Florida Administrative Code. The first chapter, 59C-1, which includes the Rule, is entitled: "Procedures For the Administration of Sections 408.031 -- 408.045, Florida Statutes, Health Facility and Services Development Act."
Rule 59C-1.012 states in paragraph (a) of subsection
(2):
If a valid request for administrative hearing is timely filed challenging the noticed intended award of any certificate of need application in the batch, that challenged granted applicant shall have ten days from the date the notice of litigation is published in the Florida Administrative Weekly to file a petition challenging any or all other cobatched applications.
Rule 59C-1.012(2)(a), Florida Administrative Code.
There is no contention in this proceeding that St. Vincent's filed its petition challenging AHCA proposed
decision to approve Baptist's application in anything other than a timely manner under Section (2) of the Rule, that is, within its ten-day period: "10 days from the date the notice of litigation [to be distinguished from an AHCA notice of intended action or of proposed decision] is published in the Florida Administrative Weekly."
Baptist hopes to defeat St. Vincent's petition with a motion to dismiss (see DOAH Case No. 02-0943CON) that depends on the outcome in this case; if Section (2) of the Rule is invalidated then there is no authority for the filing of
St. Vincent's request for comparative hearing later than the 21- day period during which the other petitions were filed. A ruling, therefore, on the motion awaits the conclusion of this proceeding.
Subsection (2) of the Rule was added by an amendment to the Rule in December of 1992 (the "1992 Amendment"). The Rule has not been amended since.
The certification package for the 1992 Amendment to add Subsection (2) to the Rule was submitted to the Bureau of Administrative Code under cover of a letter dated November 24, 1992. In the certification, signed by the Department's General Counsel, the "[s]pecific [r]ulemaking [a]uthority" for the amendment is "408.15(8), Florida Statutes." Petitioner's Exhibit 4. Under "Law Being Implemented, Interpreted or Made Specific" are listed "408.039(5), F.S." and "120.57, 120.59, F.S." Id.
The language in the amendment that added the present Section (2) to the Rule is markedly different from language originally proposed in the process that culminated in the present language.
The different language proposed earlier is contained in an Inter-Office Memorandum dated January 31, 1992. The memorandum references "proposed amendments to [the Rule] . . . circulated for internal office review and comment." See Petitioner's Exhibit 1. This earlier version of the amendment did not allow any additional time beyond twenty-one days from the publication of a notice of proposed decisions or a notice of intent for a co-batched CON applicant to request a comparative
hearing. The proposal provided only a twenty-one day period from publication of the notice of the Agency's proposed decision as the time for requesting a comparative hearing.
The language of this earlier version recognized the difficulty posed for granted applicants among a batch of applicants. There may be no reason for an approved applicant to seek further administrative proceedings with regard to a proposed decision that is favorable unless and until that proposed decision is challenged by another party. Such a challenge may not be filed until the last minute of the twenty- first day leaving the applicant without time to request a comparative hearing or requiring the applicant to draft a request for such a hearing and stand on watch in the AHCA Clerk's office, ready to file it in case a petition contesting the approval of its application is filed at the last minute.
The earlier version, therefore, provided that once a petition challenging any proposed decision in a SAAR was filed that there were implications for the other applications in the same batch:
(2) If any portion of the agency decision contained in the State Agency Action Report is challenged by any person authorized by s. 381.709(5)(b), F.S., all applications in the batch are at issue, with the following exceptions:
[a denied applicant who has not challenged the denial].
[an application severed from the remainder of the batch by stipulation of the parties under other certain conditions]
(Petitioner's Exhibit 1, 5th page of a ten-page document with no page numbers. The language in the quote, above, is underscored in the exhibit since it is language proposed to be added by a rule amendment. In order to emphasize part of that language, however, the underscoring has been eliminated with the exception of the language emphasized.) The import of this different version of what became the language in the Rule is that there are other ways (albeit ways that may not function as smoothly as the method provided by the Rule) that applicants could invoke their right to a comparative hearing.
A challenge to the Rule as proposed to be amended in accord with the language in the interoffice memorandum of January of 1992 was filed. In order to settle the matter, the Agency made changes. These changes are reflected in a memorandum dated April 7, 1992, from "Lesley Mendelson" (the "Mendelson memorandum") to "Liz Dudek" and "Bob Pannel." After discussion of several proposals by interested parties, one of which is designed to cure problems posed by "the price extracted from granted applicants to enter into a stipulation which would allow the granted applicant to be severed from the batch" (Petitioner's Exhibit 2), the Mendelson Memorandum recommends
the language the agency settles on eventually as "the new paragraph 2(b)":
(b) If a timely petition is filed challenging one or more intents to grant an application in the same batching cycle, the challenged granted applicant(s) shall have
10 days to file a petition challenging any or all notices of intent in the same batching cycle.
(Petitioner's Exhibit 2.) This language with changes not material to this proceeding eventually was incorporated into Section (2) of the Rule.
Stamped received September 9, 1992, AHCA submitted a notice of proposed rulemaking to the Bureau of Administrative Code in the Department of State. The notice proposes with modification of language insignificant to this proceeding the concept proposed in the Mendelson's memorandum. The Agency describes the proposed changes to Rule 59C-1.012 (the "1992 Amendment") as procedural in nature:
The purpose of the proposed amendments . . . is to clarify and revise the existing rule regarding the definitions and procedures relating to administrative hearings . . . .
The proposed amendments . . . set forth administrative hearing procedures for batched Certificate of Need applications
. . . .
(Petitioner's Exhibit 3.)
In answer to the question of what prompted the development of the 1992 Amendment now in the Rule,
Elizabeth Dudek, AHCA Deputy Secretary for Managed Health Care and Health Quality, and the Director of the Certificate of Need Office at the time 1992 Amendment were proposed, testified:
[I]t was not uncommon at that point [prior to the 1992 Amendments] to have a nursing home case with 20 or more applicants and try to deal with who filed what when, even with letters of intent, and not uncommon to have at that point after a CON decision was made, to have CON consultants, their attorneys, lining the halls to see who would . . . file a petition or challenge against one of the parties in the case.
And also not uncommon that there were, in a large case, individuals who might have had an approval but basically were held captive by the entire process . . . .
So there was not still a process that was as streamlined as it could have been and basically cut back on some of the uncertainty and just the volume of what was going on.
So one of the things that we looked to do with this rule is try to further . . .
narrow and clarify what the process would be with respect to outcomes of CON decisions; and then how people would progress further from that . . .
(Tr. 117, 118). Ms. Dudek went on to testify that the problem addressed by the 1992 Amendment did not occur in cases where the issues were between one applicant and the Agency or in cases of expedited review. The issues the 1992 Amendment were intended to resolve relate to co-batched applicants and stem from the rights of co-batched applicants to comparative review.
Comparative Review
Under the statutory scheme for administration of the CON Program, a CON is required for the establishment of certain types of health care facilities (such as a hospital or nursing home), for the establishment of additional beds at an existing facility, and for the establishment of certain services.
Persons seeking a CON must file an application in what is known as a "batching cycle." See Section 408.039(1), Florida Statutes, and Florida Administrative Code Rule 59C-1.010. In a batching cycle, all applications seeking approval for the same type of facility, beds, or services undergo "comparative review" by the Agency.
"Comparative review" is defined as follows:
"Comparative review" means the process by which Certificate of need applications, submitted in the same batching cycle for beds, services or programs for the same planning area, as defined by applicable rules, are competitively evaluated by the agency through final agency action for purposes of awarding a Certificate of Need. (Emphasis added.)
See Florida Administrative Code Rule 59C-1.002(11).
The Agency proposes a decision to approve or deny a CON application and then denied applicants are afforded rights to further administrative proceedings pursuant to Section 408.039, Florida Statutes. Existing facilities and programs may
challenge also the Agency's proposed decision to approve a CON application for a competing facility or program.
Section 408.039(5) contains the statutory provisions related to administrative hearings on CON decisions:
Within 21 days after publication of notice of the State Agency Action Report and Notice of Intent, any person authorized under paragraph (c) to participate in a hearing may file a request for an administrative hearing; failure to file a request for hearing within 21 days of publication of notice shall constitute a waiver of any right to a hearing and a waiver of the right to contest the final decision of the agency. A copy of the request for hearing shall be served on the applicant.
Hearings shall be held in Tallahassee unless the administrative law judge determines that changing the location will facilitate the proceedings. The agency shall assign proceedings requiring hearings to the Division of Administrative Hearings of the Department of Management Services within 10 days after the time has expired for requesting a hearing. Except upon unanimous consent of the parties or upon the granting by the administrative law judge of a motion of continuance, hearings shall commence within 60 days after the administrative law judge has been assigned. All parties, except the agency, shall bear their own expense of preparing a transcript. In any application for a certificate of need which is referred to the Division of Administrative Hearings for hearing, the administrative law judge shall complete and submit to the parties a recommended order as provided in ss. 120.569 and 120.57. The recommended order shall be issued within 30 days after the receipt of the proposed recommended orders or the deadline for
submission of such proposed recommended orders, whichever is earlier. The division shall adopt procedures for administrative hearings which shall maximize the use of stipulated facts and shall provide for the admission of prepared testimony.
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The applicant's failure to strictly comply with the requirements of s. 408.037(1) or paragraph (2)(c) is not cause for dismissal of the application, unless the failure to comply impairs the fairness of the proceeding or affects the correctness of the action taken by the agency.
The agency shall issue its final order within 45 days after receipt of the recommended order. If the agency fails to take action within such time, or as otherwise agreed to by the applicant and the agency, the applicant may take appropriate legal action to compel the agency to act. When making a determination on an application for a certificate of need, the agency is specifically exempt from the time limitations provided in s. 120.60(1).
The right to a comparative hearing is codified in paragraph (c) of the statute providing administrative proceedings related to CONs:
(c) In administrative proceedings challenging the issuance or denial of a certificate of need, only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications. Existing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need, whether reviewed under s. 408.036(1) or (2), to a competing
proposed facility or program within the same district.
Section 408.039(5), Florida Statutes. It is this provision that statutorily confers on co-batched applications "entitle[ment] to a comparative hearing on their applications." Id.
"Comparative hearing" is defined to mean:
(10) "Comparative hearing" means a single hearing, conducted pursuant to s. 120.57, F.S., and s. 59C-1.012, F.A.C., held to review all pending applications in the same batching cycle and comparatively reviewed by the agency. (Emphasis added.)
See Rule 59C-1.002(10), Florida Administrative Code.
Participation in Comparative Review Proceedings
Under current procedure, all co-batched applicants do not automatically participate in comparative review because of one of the applicants' request for administrative proceedings following issuance of the SAAR. If the request does not relate to the denial of another co-batched applicant and the denied applicant fails to challenge the denial within the 21-day period then the denied applicant has no right to participate. It participates only if its denial has been challenged by another, a rare event. (See tr. 124). The denied applicant, by failing to challenge its own denial waives its right to comparative review.
Approved applicants, moreover, that are challenged are not invariably fated to endure a comparative hearing until it is
completed. Once a co-batched applicant has challenged the approved application, the proceedings related to the comparative hearing commence. But under the Rule, if all challenges to the approval are subsequently voluntarily dismissed as well as any to the fixed need pool, the approved applicant is severed from the batch. The severed applicant then receives a CON separately from action with regard to its co-batched applicants by final agency action. The same happens if no one challenges an approved applicant and there is no challenge to the fixed need pool, yet other challenges are made to other proposed decisions announced by the SAAR. (This was the scenario with regard to Baptist prior to St. Vincent's request for a comparative hearing.) The approved unchallenged applicant is severed from the batch and receives the certificate of need awarded by the SAAR by separate final agency action. These processes are codified in sub-paragraphs(b) and (c) of Section (2) of the Rule.
St. Vincent's Interest in a Comparative Hearing
Applications for CONs in the same batching cycle are not necessarily mutually exclusive. It is possible, for example, that both St. Vincent's and Baptist's could emerge from administrative hearings with the CONs for which they applied. Nonetheless, their proposals might be mutually exclusive. In the proceeding brought against St. Vincent's, Memorial might be
able to prove that the District has a need for a number of beds that would allow either St. Vincent's approval or Baptist's but not both. If the hearing is not a comparative hearing but simply Memorial versus St. Vincent's then in light of such proof of mutual exclusivity, St. Vincent's application would have to be denied since Baptist's had been approved.
On the other hand, if a comparative hearing is held, and St. Vincent proved that its application is superior to Baptists and that it was otherwise entitled to a CON, then its application could still be granted in the face of Memorial's proof of mutual exclusivity. In such a case, Baptist's would have to be denied.
St. Vincent's interests, therefore, propelled it to request a comparative hearing once Memorial challenged AHCA's proposed decision to approve the St. Vincent's CON application.
Baptist, in turn, hopes to avoid a comparative hearing with St. Vincent's. Its hope is based on what it sees as the invalidity of Section (2) of the Rule against which it has launched a two-pronged attack.
Baptist's Two-pronged Attack
Baptist sees Section (2) of the Rule to be in contravention of statutory authority. It reads the applicable statutes to require the filing of a request for comparative hearing within the 21-day period following the publication of
the notice of the SAAR without authority for the filing later in the 10-day window as authorized by Section (2) of the Rule.
Baptist also argues that Section (2) of the Rule was repealed when the Uniform Rules of Procedure were adopted and AHCA failed to obtain an exception for the section by July 1, 1998. Subsumed in this argument is the contention that the provision of the 10-day window conflicts with one of the Uniform Rules: Rule 28-106.111, Florida Administrative Code, the "Uniform Point of Entry Rule."
The Uniform Point of Entry Rule
Rule 28-106.111, Florida Administrative Code, which became effective April 1, 1997, provides, in pertinent part:
(2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interest shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.
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(4) Any person who receives written notice of an agency decision and who fails to file a written request for a hearing within 21 days waives the right to request a hearing on such matters.
The subject of the Uniform Point of Entry Rule is what is referred to in case law as "point of entry." Point of entry is that opportunity that must be provided by an agency to a party to participate in administrative proceedings after an
agency decision has determined the party's substantial interests and through which the party enters administrative proceedings and thereby gains access to the decision-making process by which the agency determines the party's substantial interests.
Indeed, the title of Chapter 28-106, is "Decisions Determining Substantial Interests." The Chapter is one set of what makes up an assemblage of rules required by the Administrative Procedure Act: the Uniform Rules of Procedure.
Uniform Rules of Procedure
In 1996, the Florida Legislature, in response to an ongoing examination of the Model Rules of Procedure (see Chapter 28-1 through 5 of the Florida Administrative Code, now repealed) initiated by the Governor's Office and as part of a revision of the Administrative Procedure Act, enacted Section 120.54(5), Florida Statutes. The section mandates adoption of "one or more sets of Uniform Rules of Procedure." Section 120.54(a)1., Florida Statutes.
As a result of the mandate, the Uniform Rules of Procedure were adopted. Chapter 28-106 is one set of the Uniform Rules.
Events that led up to the adoption of the Uniform Rules of Procedure were described at hearing by William E. Williams, a member of the Executive Council of the Administrative Law Section of the Florida Bar prior to 1996 and
the Section Chair in 1996, when the Legislature mandated the adoption of the Uniform Rules of Procedure:
The Model Rules of Procedure . . . had been in place for about 25 years and although the thought early on was to make them apply to all agencies, the Model Rules really did not.
. . . they applied to the extent that agencies didn't adopt rules on the same subject; so the agency had the ability to essentially trump the Model Rules by adopting their own rules of procedure.
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The administrative law section took a position . . . that by having each agency adopt its own procedural rules . . . was confusing to the practicing bar and the public because different time parameters were provided for in various agency rules.
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[W]hat became 120.54(5) was essentially a product of the input of the administrative law section with regard to Uniform Rules of Procedure that would be uniformly applicable to all agencies in the absence of that agency seeking an exception under certain circumstances.
(Tr. 50-52).
Among the requirements in Section 120.54(5)(b)4., is one that rules be adopted for the "filing of petitions for administrative hearings pursuant to s. 120.569 or s. 120.57." This requirement stemmed from the concern of The Administrative Law Section of the Bar that differing points of entry times, one
in the Model Rules, another in rules specific to an agency, could create a trap for the unwary. This concern was expressed in a white paper issued by the section entitled "Administrative Law Section Ideological and Legislative Position on APA 'Reform'":
Uniform model rules of procedure that govern actions of every agency benefit the people by avoiding procedural traps and obstacles. Allowing agencies to create special procedural rules that vary from agency to agency defeats citizen participation in government and handicaps citizens who question agency actions. The agency rules are difficult for citizens and lawyers to locate. They are traps for the unwary.
(Petitioner's Exhibit 7, p. 2-3.)
To ease the concern expressed by the Administrative Law Section about "traps for the unwary" with regard to points of entry, the Uniform Rules of Procedure provide for a twenty- one day point of entry to seek a hearing on an agency decision (Rule 28-106.111, Florida Administrative Code). No exceptions are provided in the Uniform Rules.
At the same time, exceptions were allowed by Section 120.54(5). Chapter 96-159, Laws of Florida, moreover, provided agencies a reasonable time period to review their procedural rules and seek exceptions as necessary.
The statute is explicit with regard to exceptions:
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[T]he uniform rules shall be the rules of procedure for each agency subject to this chapter unless the Administration Commission grants an exception to the Agency under this subsection.
An agency may seek exceptions to the uniform rules of procedure by filing a petition with the Administration Commission. The Administration Commission shall approve exceptions to the extent necessary to implement other statutes, to the extent necessary to conform to any requirement imposed as a condition precedent to receipt of federal funds or to permit persons in this state to receive tax benefits under federal law, or as required for the most efficient operation of the agency as determined by the Administration Commission. The reasons for the exceptions shall be published in the Florida Administrative Weekly.
Agency rules that provide exceptions to the uniform rules shall not be filed with the department unless the Administration Commission has approved the exceptions. Each agency that adopts rules that provide exceptions to the uniform rules shall publish a separate chapter in the Florida Administrative Code that delineates clearly the provisions of the agency's rules that provide exceptions to the uniform rules and specifies each alternative chosen from among those authorized by the uniform rules.
Section 120.54(5)(a), Florida Statutes.
After adoption of the Uniform Rules, the Office of the Governor sent a memorandum from "Debby Kearney" to "All Agency General Counsels" (the "Kearney Memorandum"). The Kearney Memorandum provided state agencies with a copy of the Uniform Rules and notified them of the requirement to file for
exceptions if different procedures were necessary to conduct proceedings before their agency or as required by law. The memorandum was specific regarding the need to apply for exceptions. Even if an agency had specific statutory authority for a procedure different from that in the Uniform Rules, the agencies were reminded of the requirement that they seek approval of the exception:
The working group on the Uniform Rules was quite emphatic that the intent evident in the statute is that every procedural rule that is different from or is in addition to a Uniform Rule, be included on the listings of exceptions. Obviously, if a difference is required by statute or case law, this will be the easier case; however, all must go through this procedure.
(Petitioner's Exhibit 9, emphasis in original.)
The Administration Commission followed up by providing forms to request an exception, and again reiterated the importance of requesting one, whether it be for something different, or something in addition to, the Uniform Rules:
To assist agencies in requesting exceptions, the Administration Commission staff has prepared a model petition format outlining the information that will be necessary for the Commission to review the petitions and make a decision. As communicated in Ms.
Kearney's memorandum, EVERY procedural rule that is different from or in addition to a Uniform Rule, must go through the exception process. The format is divided into two sections. Section I includes procedures that are covered by the Uniform Rules.
Section II includes procedures that are not
covered by the Uniform Rules; however, the procedure must be necessary and the agency must be authorized to have the procedure.
(Petitioner's Exhibit 10, emphasis added.)
Subsequent to these two memoranda, questions arose from agencies regarding the scope of application of the Uniform Rules of Procedure. In particular, agencies expressed concern regarding permit and license application procedures prior to intended agency action. To answer these concerns, on March 4, 1998, the Administration Commission under the signature of its Secretary, Bob Bradley, issued another memorandum (the "Bradley Memorandum"). The Bradley Memorandum explains that "free form" procedures (those that precede notification of agency action, entry into formal proceedings and the carrying out of challenges to agency action through resolution by final order) were not within the scope of the Uniform Rules and therefore did not require exceptions:
Section 120.54(5)(b), Florida Statutes, requires the Commission to adopt uniform rules of procedure for specific subjects
. . . .
There are a myriad of other procedural matters, such as permit or license application procedures, which precede formal proposed agency action and, thus, are not addressed by the [Uniform Rules].
* * *
Exceptions to procedural rules which lie beyond the scope of rules contained in the [Uniform Rules are] not required
. . . .
(Petitioner's Exhibit 11.)
The Agency for Health Care Administration did not apply for, nor, consequently, did it receive, an exception to the Uniform Rules to cover the procedure for invoking an approved applicant's right to a comparative hearing contained in Section (2) of the Rule. At hearing, AHCA offered no evidence or explanation regarding its course of not seeking an exception to the Uniform Rules of Procedure.
Restrictions to Agency Rule-Making Authority
The 1996 amendments to Chapter 120 (Ch. 96-159, Laws of Florida, Petitioner Exhibit 14), in addition to requiring one or more sets of Uniform Rules of Procedure, also limited agency discretion in rule adoption. Prior to that time, agencies could adopt rules if there was a general grant of authority and the rule was reasonably related to the law being implemented. The 1996 amendments restricted agency rule-making authority to those which "implement, interpret, or make specific the particular powers and duties granted by the enabling statute." Prior to these amendments, agencies had broad discretion to adopt rules which were "reasonably related to the purpose of the enabling
legislation." See Chapter 96-159, Section 9, Laws of Florida (Petitioner's Exhibit 14; Tr. Pages 93-96).
In 1999, this rule-making authority was limited even further, rejecting the "class of powers and duties" analysis of St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998), which interpreted agency rule-making authority more broadly than the Legislature had intended. (See "intent" language of Chapter 99-379, Laws of Florida.) Chapter 99-379, Section 3, Laws of Florida, amended Section 120.536, Florida Statutes, to clarify that:
No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provision setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific the particular powers and duties conferred by the same statute.
(Petitioner's Exhibit 15.)
By both Chapters 96-159 and Chapters 99-379, Laws of Florida, agencies were provided a period of time to review and conform their rules to the stricter rule-making standards of that legislation (Tr. p. 96) The record reflects that AHCA took
no action to modify Rule 59C-1.012, in light of these new legislative directives.
Legislative Recognition of the Rule in 1997
In 1997, the Florida Legislature recognized all of AHCA's rules, including the CON Administrative Hearings Procedure Rule, that then implemented the CON statutes by declaring the rules effective and enforceable:
The rules of the agency in effect on June 30, 1997 shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency . . . .
See Chapter 97-270, Laws of Florida. This law was codified as Section 408.0455, Florida Statutes, with an effective date of July 1, 1997, two months after the effective
date of the adoption of the Uniform Rules of Procedure and exactly one year prior to the deadline for approval of exceptions to the Uniform Rules, July 1, 1998.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause. Section 120.56(1), Florida Statutes.
Baptist, as the party challenging the Section (2) of the Rule, has the burden of proving it invalid. Dravo Basic
Materials Co., Inc., v. Department of Transportation, 602 So. 2d 632 (Fla. 2d DCA 1992).
Contravention of Statutory Authority
Baptist maintains that the Rule modifies, enlarges or contravenes statutory authority and so is an invalid exercise of delegated legislative authority. Whatever value its argument might have had prior to July 1, 1997, the effective date of Section 408.0455, Florida Statutes (the "Savings Statute"), the argument loses all validity with the passage of the Savings Statute. Through its recognition of the rules of AHCA in effect on June 30, 1997 and its declaration that they "shall remain in effect and shall be enforceable by the agency with respect to [CON law] until such rules are repealed or amended by the agency
. . . ," Section 120.4055, Florida Statutes, the Legislature, in essence, ratified, validated and declared saved the Rule and its Section (2) as of July 1, 1997.
Conflict with the Uniform Point of Entry Rule
At least since Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978) it has been understood that
[An] agency's rules must clearly signal when the agency's free-from decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings, if authorized, or to accept his statutory opportunity for informally structured proceedings under Section 120.57(2). In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in
investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57.
Capeletti Brother, Inc., above, at 348. Accord, Florida League of Cities, Inc. v. Administration Commission, 586 So. 2d 397, at 413 (Fla. 1991).
The Capelletti notion of "point of entry" is what is provided by Rule 28-106.111, Florida Administrative Code:
(2) Unless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.
AHCA Rules signal that its free-form decisional process is over when it issues its SAAR. The notice of intent published in the Florida Administrative Weekly, as required by statute, provides CON applicants subject to the SAAR with additional notice of the decisions in the SAAR and the opportunity within a specified time to request a hearing. The time period of 21 days from publication (a recognizable event) is consistent with the time period provided in the Uniform Point of Entry Rule, 21 days from written notice of the decision, a recognizable event.
The notice of intent published in the Florida Administrative Weekly through the effort of AHCA provides a point of entry required by Rule 29-106.111, Florida
Administrative Code. If no party takes advantage of this point of entry, then the SAAR becomes final agency action. Only after parties have availed themselves of the point of entry provided by AHCA does the right to a comparative hearing come into play. Prior to a challenge to its approval or to the approval of another applicant, the approved applicant may have no quarrel with action taken by AHCA in the SAAR, and so there is no reason to seek a comparative hearing. Once administrative proceedings following the publication of the notice of intent have been entered, however, then the approved applicant may opt to choose to seek a comparative hearing.
Understood this way it is apparent that Section (2) of the CON Administrative Procedures Rule provides neither what is traditionally considered a point of entry into administrative proceedings nor the point of entry required by the Uniform Rules. The party that invokes the right to a comparative hearing pursuant to Section (2) of the CON Administrative Hearings Procedure Rule has already entered the administrative proceeding as in the case of St. Vincent's or, as in the case of Baptist, has waived its right to enter administrative proceedings and hopes not to have to enter those proceedings at all. The request for a comparative hearing is not a point of entry but a point of transformation. It converts post-SAAR or post-notice of intent CON proceedings into ones of comparative
considerations. The transformational nature of the request for a comparative hearing is evident from the circumstances of the parties in this case.
In this case, the exercise by St. Vincent's of its right to a comparative hearing was not a point of entry for it into administrative proceedings; St. Vincent's was already in administrative proceedings because of the petition filed by Memorial.
Exercise of St. Vincent's right to a comparative hearing was the point at which Baptist entered the proceeding, but it was not the sort of point of entry required by the Uniform Point of Entry Rule. Baptist, rather, was pulled into administrative proceedings by another's resort to its right to a comparative hearing. Baptist entry into a comparative hearing was not an opportunity for it to protect its interests by contesting agency action as is afforded by what is meant by the "point of entry." The point at which Baptist entered proceedings is precisely the opposite: an opportunity for St. Vincent's to persuade AHCA that its application is superior to Baptist's, persuasion that could diminish or even take away Baptist's approval in its entirety.
It is clear that Section (2) of the Rule is not a traditional point of entry rule. It is a method by which a party gains a comparative hearing after it has already entered
administrative proceedings at the behest of another and in the process is given the opportunity to pull others against their interests into the hearing process. Section (2) of the CON Administrative Hearings Procedure Rule is not in conflict with the Uniform Point of Entry Rule.
That Section (2) does not conflict with the Uniform Point of Entry Rule does not mean, however, that it was not, in effect, repealed on July 1, 1998, the deadline for exceptions to the Uniform Rules. Unless Section 408.0455, Florida Statutes, saves it, if section (2) is procedural then it did not survive the deadline for the granting of an exception to the Uniform Rules of Procedure.
Section (2) is Procedural
St. Vincent's, St. Luke's and AHCA argue that Section
(2) of the CON Administrative Procedures Rule is not procedural but substantive. In their view, by design, the Rule "assures and enforces a CON applicant's substantive right to comparative review." Proposed Final Order, filed jointly by St. Vincent's, St. Luke's and AHCA, p. 21. Baptist, argues that it is "procedural" on a number of bases.
"The question of whether a rule relates to substantive law or practice and procedure is one which constantly arises." So wrote Justice Adkins in his seminal concurring opinion in In re Florida Rules of Criminal Procedure, 272 So. 2d 65 (Fla.
1972) on what constitutes substantive law versus procedural. Justice Adkins offered definitions of the terms "substantive" and "procedural" in the opinion but not before he offered the cautionary reflection that:
The entire area of substance and procedure may be described as a "twilight zone" and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.
272 So. 2d at 66. His reproval has proven prophetic as the appellate courts have struggled with the meaning of the terms ever since in cases too legion to cite.
"Practice and procedure pertain[] to the legal machinery by which substantive law is made effective." Id. Section (2) of the Rule meets this definition. This conclusion, as Baptist points out, is supported by AHCA's view of the Rule. The title given the Rule by AHCA, Administrative Hearing Procedures, declares its content to be procedural. In the promulgation process AHCA recognized it to be procedural. For example, the summary of the Rule in AHCA's Notice of Rulemaking submitted to the Bureau of Administrative Code at the commencement of the promulgation process refers to the Rule as procedural. The Agency's intent with regard to rulemaking when the 1992 Amendment was initiated also contained in AHCA's notice of rulemaking is proof that AHCA regards it to be procedural:
"[t]he purpose of the proposed amendments . . . is to clarify and revise the existing rule regarding . . . the procedures relating to administrative hearings [among other statements]." (Petitioner's Exhibit 3.)
Section (2) of the Rule is procedural. It is "machinery" by which a co-batched CON applicant's substantive right to a comparative hearing is made effective.
Saulter, Gaston and Crawford
In both Department of Corrections v. Saulter, 742 So.
2d 368 (Fla. 1st DCA 1999) and Gaston v. Department of Revenue, 742 So. 2d 517 (Fla. 1st DCA 1999), the First District Court of Appeal held that rules that are inconsistent with the Uniform Rules of Procedure are void and repealed as a matter of law, at least by July 1, 1998, the deadline for agency compliance with the Uniform Rules and for approval of exceptions to the rules.
In Gaston, Judge Webster wrote that unless an agency received an exception for a rule in conflict with the Uniform Rules of Procedure then the Uniform Rules became binding on the date they were filed, April 1, 1997, by operation of Section 120.54(5)(a), Florida Statutes. If an agency had a conflicting rule in effect at the time of filing (April 1997), the agency would have until July 1, 1998, to either comply with the Uniform Rules by amending its rules, or seeking and obtaining an exception from the Administration Commission.
In Department of Corrections v. Saulter, 742 So. 2d
368 (Fla. 1st DCA 1999), the court took up the validity of a rule of the Public Employees Commission ("PERC"). The Rule provided for motions for consideration that served the same function as a motion for rehearing. The court held that despite the silence of the Uniform Rules of Procedure on motions for rehearing, the PERC rule did not survive the adoption of the Uniform Rules of Procedure and PERC's failure to obtain approval of an exception to the Uniform Rules by July 1, 1998.
In a decision rendered less than five months later that became final just shy of the first anniversary of Saulter, the Third District Court of Appeal held that the very same PERC Rule declared by the Saulter court subject to the legislative repeal effected by Section 120.54(5)(a), Florida Statutes, did, as a matter of law, survive the adoption of the Uniform Rules. See Crawford v. Department of Children and Families, 785 So. 2d
505 (Fla. 3rd DCA 2000), rev. dism. Florida Department of Children and Families v. Crawford, 761 So. 2d 328 (Fla. 2000). The Crawford court cited the Bradley Memorandum as authority for why PERC did not need to seek an exception for its rule with regard to motions for reconsideration:
Petitions for exceptions to the uniform rules are required for agency procedural rules which fall within the subject matter or scope of the existing URP [Uniform Rules of Procedure] . . . . Exceptions to
procedural rules which lie beyond the scope of rules contained in the URP should not be required for the following reasons:
The statute does not require exceptions for everything procedural, but rather only for matters which are addressed in the URP. By definition, to be an "exception" to a rule, the rule must apply in the first place.
Memorandum from Robert B. Bradley, Secretary of the Administrations [sic] Commission, Exceptions to Uniform Rules of Procedure (March 4, 1998)(Emphasis added).
Crawford, above, at 507. The Crawford Court went on to declare the matter one governed by common sense:
Common sense dictates that if the Uniform Rules of Procedure nowhere address motions for rehearing, then motions for rehearing do not fall within the subject matter or scope of the rules. Accordingly, PERC did not have to apply for or receive an exception to the Uniform Rules to retain and apply its rule authorizing motions for rehearing. See Fla. Admin. Code R. 28-108.001 (1998) ("The
agency head shall file a petition with the Administration Commission for an exception to the Uniform Rules of Procedure for all of the agency's procedural rules which fall within the subject matter or scope of any of the individual Uniform Rules of Procedure
. . . . (Emphasis added).
Id.
Discretionary Review Declined and Fundamental Fairness
Despite the conflict between Saulter and Crawford, the
Florida Supreme Court declined to exercise its discretionary review power when review of Crawford was sought by the Department of Children and Families. Department of Children and
Families v. Crawford, rev. dism. 761 So. 2d 328 (Fla. 2000). The Court's reason for declining discretionary review cannot be discerned with certainty but it is worth pointing out a concern for fundamental fairness expressed by the Crawford court had its decision been to determine invalid PERC's rule:
Assuming, arguendo, that PERC's rule authorizing motions for rehearing did not survive the adoption of the Uniform Rules of Procedure, these appeals should still not be dismissed as untimely. The orders appealed provide in unequivocal language that "alternatively, a motion for reconsideration may be filed." To penalize these appellants who in good faith relied on that provision would be tantamount to a denial of due process, and would be tantamount to a denial of due process, and would violate fundamental notions of fairness.
Crawford, at 507, 508. Logically, this concern for due process should apply to a party that relies in good faith on a provision in the Florida Administrative Code that has not been repealed by the promulgating agency particularly when that provision has been blessed by legislative recognition that amounts to ratification of the provision as in this case. See paragraphs
91 and 92, below.
The Saulter Court was not unaware of the fairness issue that held sway in Crawford. But the Saulter court noted that concerns of fairness did not carry as much weight when the appellant in Saulter, the Department of Corrections, ("DOC") "is itself subject to the Administrative Procedure Act and charged
with knowledge of its provisions[,]" Saulter, at 370. Thus the Court found DOC charged with knowledge of the mandate that the Uniform Rules of Procedure be adopted and the consequences of failure by an agency to obtain any necessary exceptions by a date certain, a knowledge with which the appellants in Crawford, state employees rather than state agencies, could not be fairly charged. (Out of concern for equity, the Saulter Court noted, moreover, that DOC might be able to avail itself before PERC of collateral proceedings authorizing an executive branch tribunal to enter a superseding final order to permit a belated appeal in a case of egregious circumstances. Saulter, at 370.)
Saulter or Crawford
Given the choice between applying Saulter or Crawford to this case, it appears to this administrative law judge that Saulter, notwithstanding the Crawford Court's reliance on common sense and its concern for traps for the unwary, is more true to the statute that provides for the Uniform Rules.
Just as the title to Chapter 28-106 suggests, Proceedings that Determine Substantial Interests, the Uniform Rules are to "establish procedures that comply with the requirements of this chapter [the Administrative Procedure Act]." Section 120.54(5)(a)1., Florida Statutes. Once the Uniform Rules were filed with the Department of State they were
adopted and became the rules of procedure for AHCA unless the Administration Commission granted an exception.
On filing with the department, the uniform rules shall be the rules of procedure for each agency subject to this chapter unless the Administration Commission grants an exception under this subsection.
Id. In other words, as held by Saulter, an agency can have no rules of procedure other than the Uniform Rules unless covered by an exception approved by the Administration Commission as of July 1, 1998. No exception was approved for Section (2) of the CON Administrative Procedures Rule, therefore the section was, in effect, legislatively repealed by operation of Section 120.54(5), Florida Statutes, unless the Savings Statute saves it.
Effect of the Savings Statute on
Section (2)'s Inconsistency with the Uniform Rules
In the opinion of this administrative law judge, reasonable minds can differ on the effect of Section 408.0455, Florida Statutes, on Section (2) of the Rule.
On the one hand, an argument could be made that to give full force and effect to both Section 408.0455 and Section 120.54(5), Florida Statutes, Section (2) should be determined invalid. According to this argument, although ratified by Section 408.0455, Florida Statutes, on July 1, 1997 (thus giving full effect to Section 408.0455) Section (2) of the Rule fell
one year later, on July 1, 1998, when no exception to the Uniform Rules was granted to protect it from its inconsistency with the Uniform Rules [thus giving full effect to Section 120.54(5)].
On the other hand, one could argue that Section 408.0455 should be taken literally to have validated all CON rules in effect on June 30, 1997, and to continue the existence of the rules "until such rules are repealed or amended by the agency," (emphasis supplied) rather than until incurring a "legislative repeal" as did the PERC Rule considered in Saulter. See Saulter at 370. Viewed this way, since Section (2) of the CON Administrative Hearing Procedures Rule has not been repealed or amended by AHCA, it remains valid notwithstanding the expiration of the time for approval as an exception to the Uniform Rules. Accord State v. Rasmussen, 644 So. 2d 1389 (Fla. 1st DCA 1994).
Interpretation of statutes should avoid undesirable consequences. See Statutes, Vol. 48, Fla. Jur. 2d, Sections 186-188. A determination that Section 408.0455, Florida Statutes, did not save Section (2) of the Rule from the legislative repeal worked by Section 120.54(5) produces the undesirable consequence of the loss of a sensible method for invoking the constitutional and statutorily-recognized right to comparative review. It produces, moreover, a heightened trap
for the unwary. If Section (2) of the Rule did not survive July 1, 1998, then for St. Vincent's to have been able to invoked its right to a comparative hearing, it would have to
have requested that hearing within 21 days of AHCA's publication on December 28, 2001. St. Vincent's, on reviewing the publication, would have to have known that it could not rely on Section (2) of the Rule, despite the provision's appearance in the Florida Administrative Code, despite the decision of the Third District Court of Appeal in Crawford, a decision accorded equal weight with Saulter and one that the Supreme Court had declined to exercise discretionary review over even though there was a basis for that review, and despite the existence of the Savings Statute. At the very least, St. Vincent's was lulled into thinking Section (2) of the Rule was valid by its presence in the Florida Administrative Code some three and one-half years after the deadline for exceptions to the Uniform Rules. This seems an ironic undesirable consequence in light of the purpose of the adoption of the Uniform Rules: avoidance of traps for the unwary.
Furthermore, given the normal function of a statutory savings clause such as Section 408.0455, Florida Statutes, it seems to accept dissonance in the law to say that Section (2) of the Rule was saved as of the effective date of the statute,
July 1, 1997, but lost its status one year later. The
dissonance is especially acute since Section (2) would have been repealed by operation of a statute enacted the year before and one of which the Legislature is presumed to have been aware when it enacted Section 408.0455 but to which Section 408.0455 makes no reference.
ORDER
Based on the foregoing, it is determined that Baptist's Petition to Determine Invalidity of Existing Rule filed February 15, 2002, should be and hereby is DENIED.
DONE AND ORDERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida.
DAVID M. MALONEY
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 30th day of April, 2002.
COPIES FURNISHED:
R. Terry Rigsby, Esquire
215 South Monroe Street, Suite 440 Tallahassee, Florida 32301
John F. Gilroy, III, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Building Three, Suite 3431 Tallahassee, Florida 32308-5403
Stephen C. Emmanuel, Esquire Michael J. Glazer, Esquire Ausley & McMullen
227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302
Michael J. Cherniga, Esquire Greenberg Traurig, P.A.
101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302
Donna H. Stinson, Esquire Broad and Cassel
215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive
Building Three, Suite 3431 Tallahassee, Florida 32308-5403
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Building Three, Suite 3431 Tallahassee, Florida 32308-5403
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Building Three, Suite 3431 Tallahassee, Florida 32308-5403
Carroll Webb, Executive Director and General Counsel
Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Liz Cloud, Chief Department of State
Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250
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 |
|---|---|---|
| Apr. 30, 2002 | DOAH Final Order | Section (2) of CON Administrative Procedure Rule is neither an invalid exercise of legislative authority nor repealed by operation of the statute on the Uniform Rules of Procedure. |
