STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE HOSPICE OF THE FLORIDA SUNCOAST, INC.,
Petitioner,
and
HOSPICE SYSTEMS, INC. d/b/a SUNCOAST SOLUTIONS,
Intervenor,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent,
and
HOSPICE OF THE PALM COAST, INC.,
Intervenor.
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) Case No. 07-2906RX
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LIFEPATH HOSPICE AND PALLIATIVE ) CARE, INC., )
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Petitioner, )
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vs. )
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AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
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Respondent, )
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and )
) HOSPICE OF THE PALM COAST, ) INC., )
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Intervenor. )
Case No. 07-3021RX
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FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Charles A. Stampelos, held a final hearing in the above-styled cases on February 5-8, 2008, in Tallahassee, Florida.
APPEARANCES
For The Hospice of the Florida Suncoast, Inc.:
Paul H. Amundsen, Esquire Susan L. St. John, Esquire Amundsen & Smith, P.A.
502 East Park Avenue Tallahassee, Florida 32301
For LifePath Hospice and Palliative Care, Inc.:
Karen A. Putnal, Esquire
Parker, Hudson, Rainer & Dobbs, LLP The Perkins House
118 North Gadsden Street, Suite 200 Tallahassee, Florida 32301
H. Darrell White, Esquire
LifePath Hospice and Palliative Care, Inc. 12973 Telecom Parkway, Suite 100
Temple Terrace, Florida 33637 For Hospice of the Palm Coast, Inc.:
Mark A. Emanuele, Esquire Deborah S. Platz, Esquire Panza, Maurer, & Maynard, P.A.
Bank of America Building, Third Floor 3600 North Federal Highway
Fort Lauderdale, Florida 33308 For The Agency for Health Care Administration:
Lorraine M. Novak, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
For Hospice Systems, Inc. d/b/a Suncoast Solutions: Edward B. Carlstadt, Esquire
2700 Bank of America
101 East Kennedy Boulevard Tampa, Florida 33602
STATEMENT OF THE ISSUE
Whether Florida Administrative Code Rule 59C-1.0355(4)(d)3. is an invalid exercise of delegated legislative authority?
PRELIMINARY STATEMENT
On June 29, 2007, The Hospice of the Florida Suncoast, Inc. (Suncoast) filed a petition challenging the validity of Florida Administrative Code Rule 59C-1.0355(4)(d)3. (the 48-hour rule). On July 5, 2007, LifePath Hospice and Palliative Care, Inc. (LifePath) filed a similar petition.
On July 9, 2007, Hospice of the Palm Coast, Inc. (Palm Coast) filed an Amended Petition to Intervene in support of the validity of the 48-hour rule. On July 17, 2007, Hope Hospice and Community Services, Inc. (Hope) filed a similar petition.
The amended petition and petition to intervene were granted.
On July 25, 2007, Palm Coast filed a motion to dismiss (or alternatively a motion for summary final order) which was denied.
Hospice Systems, Inc. d/b/a Suncoast Solutions filed a motion to intervene for the limited purpose of "protecting its confidential, proprietary and/or trade secret information," which was the subject of several orders, including a protective order.1
On December 21, 2007, Hope voluntarily dismissed its petition to intervene.
On July 11, 2007, Palm Coast requested official recognition of several documents (from DOAH Case No. 4460RX). The request was granted on July 23, 2007. On July 25, 2007, Palm Coast
requested official recognition of Volume 18 of the final hearing transcript in DOAH Case No. 01-4460RX, and the request was granted on August 2, 2007. On July 26, 2007, Suncoast requested official recognition of the sworn testimony of Mark Richardson in DOAH Case No. 06-1673CON, and the request was granted on August 2, 2007. No determination was made whether any of these documents or portions thereof was relevant in this proceeding and will support a finding of fact.
On January 31, 2008, the parties filed a joint pre-hearing stipulation.
After an unopposed continuance was granted, the final hearing was held on February 5-8, 2008.
During the final hearing, Suncoast and LifePath called the following witnesses: Polly Rehnwall, an expert in marketing of hospice services with a focus on referrals and admissions; Katherine Fernandez, an expert in hospice administration and operations; Cheryl Hamilton, an expert in hospice administration and operations; Rebecca Ann McDonald, an expert in hospice administration and the subcategory of hospice admissions; and W. Eugene Nelson, an expert in health care planning.
Suncoast and LifePath offered Exhibits (Pet) numbered 1-8,
9 (excerpt of Hoffpauir final hearing testimony in a prior case admitted at Final Hearing and selected exhibits); 10-11; 12 (sealed); 13-17; 17A; 18; 18A; 19 (Gregg deposition testimony
from DOAH Case No. 06-1272CON); 21 (Richardson final hearing testimony in DOAH Case No. 06-1273CON); 22A-22B; 23A-23B (sealed); 30; and 32-34, which were admitted into evidence. Petitioners exhibit 35 was not admitted, but is included with the record of this proceeding. Palm Coast Exhibit 9A (Hoffpauir final hearing excerpts and selected exhibits from DOAH Case No. 06-1273CON) appear in the record after Petitioners' exhibit 9 for ease of reference.
The Agency for Health Care Administration (Agency or AHCA) called the following witnesses: Elfie Stamm, an expert in health planning and Certificate of Need (CON) rule development and Jeffrey Gregg, an expert in health planning, healthcare regulation, and CON review.
The Agency offered exhibits (AHCA) numbered 1A-4, which were admitted into evidence. The Agency also filed a notice indicating excerpts from the Agency rule file that the Agency intended to offer into evidence. The excerpts were placed in a three-ring binder that is identified as AHCA Exhibit 5. The notice identifies several pages with an asterisk that indicates the pages were reviewed by and made a part of the deposition transcript of Karen Rivera, admitted into evidence as Palm Coast Exhibit 80. The following paginated excerpts were admitted into evidence: 82 (follows 585); 198-202; 216-228; 229-253; 284-302;
336-359; 360-370; 381-391; 392; 393-406; 407-451; 452; 453-477;
482-486; 499-502; 503-504; 520-586; 587-598; 599-630; 643; 644-
655; 656-660; 668-681; 682-695; 696-712; 713-831; 867-871; 872-
874; 876-880; 881-887; 893-895; 896-897; 898-900; 917-925; 1015-
1027;1028-1040; 1047-1058; 1059-1060; 1071; 1072-1076; 1094-
1097; 1114-1120; 1128-1131; and 1136-1145.
Palm Coast called the following witnesses: Richard A. Baehr, an expert in health planning and Mark M. Richardson, an expert in health care planning.
Palm Coast offered Exhibits (PC) numbered 20-21; 55-57 (sealed); and 74-86, which were admitted into evidence.
On February 14, 2008, Palm Coast filed a request to take judicial notice (official recognition) of several pleadings filed in DOAH Case Nos. 06-1272CON; 06-1268CON; 07-4554CON; 07-
4557CON; and 07-4555CON and 07-4558CON. Official recognition has been taken of these pleadings.
There are several exhibits and portions of several depositions and exhibits to those depositions that are designated as sealed by virtue of protective orders entered in this proceeding. These portions of the record shall remain sealed and ultimately disposed of as provided by the protective orders and law.
After receiving several extensions of time, on April 28, 2008, Petitioners filed a joint proposed final order (PFO) and a corrected proposed final order and the Agency and Palm Coast
filed a joint proposed final order. These post-hearing submissions have been considered in the preparation of this Final Order.
Also, on April 28, 2008, Suncoast filed a corrected letter and a binder with confidential documents produced during discovery by LifePath, Suncoast, and Palm Coast, as well as documents referenced in numerous depositions. On April 29, 2008, Palm Coast filed a letter and a three-page document. The document compares two revisions to LifePath policy/procedure No. 805, dated March 2006 and April 2007, respectively. This three- page document was compiled from confidential documents produced by LifePath. These post-filed documents are confidential and subject to the pre-hearing confidentiality orders.
FINDINGS OF FACT
Background
This is a challenge to the facial validity of the 48-hour rule. It is not a challenge to the 48-hour rule as applied.2 Nonetheless, the following background provides the context that produced the challenge. See also Findings of Fact 14-16.
LifePath, Suncoast, and Palm Coast (or related entities), as well as the Agency, are parties in pending proceedings at the Division of Administrative Hearings (DOAH) involving Palm Coast's (or related entities) challenges to the Agency's preliminary determinations to deny CON applications (hospice)
filed by Palm Coast (or related entities). These cases have been abated pending the outcome of this proceeding.
In each proceeding, Palm Coast (or related entities) contends that a "special circumstance" exists under the 48-hour rule to justify approval of each CON application. Moreover, in support of its position, Palm Coast (or related entities) relies, in part, on data compiled by LifePath and Suncoast. It is the use of this data, in light of the 48-hour rule and interpretation thereof, that caused LifePath and Suncoast to file the rule challenges, notwithstanding that the Agency has not definitively interpreted the 48-hour rule.
Parties
The Agency administers the CON program for the establishment of hospice services and is also is responsible for the promulgation of rules pertaining to uniform need methodologies, including hospice services. See generally
§§ 408.034(3) and (6) and 408.043(2), Fla. Stat.; Ch. 400, Part IV, Fla. Stat.
Suncoast is a not-for-profit corporation operating a community-based hospice program providing hospice and other related services in Pinellas County, Florida, Hospice Service Area 5B. Suncoast has provided a broad range of hospice services to residents of Pinellas County since 1977. Suncoast has implemented an electronic medical records system and has
developed a proprietary information management software system known as Suncoast Solutions.
LifePath is a not-for-profit corporation operating a community-based hospice program providing hospice services in Hillsborough, Polk, Highlands, and Hardee Counties, Hospice Service Areas 6A and 6B. LifePath has provided a broad range of hospice services for the past 25 years.
Palm Coast is a not-for-profit corporation currently operating licensed hospice programs in Daytona Beach, Florida, Hospice Service Area 4B and in Dade/Monroe Counties, Hospice Service Area 11. Palm Coast, as well as other related entities such as Odyssey Healthcare of Pinellas County, Inc., e.g., CON application No. 9984 filed in 2007, for Hospice Service Area 5B, has filed several CON applications to provide hospice services. It is also a party in pending proceedings before DOAH, challenging the Agency's preliminary decisions to deny the respective applications.
Palm Coast's sole member is Odyssey Healthcare Holding Company, Inc., which is a wholly-owned subsidiary of Odyssey Healthcare, Inc. (Odyssey). (Palm Coast and Odyssey shall be referred to as Palm Coast unless otherwise stated.)
Standing
Petitioners provide hospice services in Florida and have not applied for a CON to provide hospice services outside their current service areas.
In the absence of a numeric need,3 an applicant for a hospice CON is afforded the opportunity to demonstrate a need for a new hospice program by proving "special circumstances." These include circumstances described in the 48-hour rule. The applicant must document 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)."4
The parties have cited no law that requires an existing hospice provider to maintain records documenting when a person is referred to a hospice program. Public documents are not available that may otherwise provide information regarding when a person is referred to a hospice program.5
Existing providers do not uniformly maintain data that reflects the length of time between when a person is referred to and later admitted to a hospice program.
By rule, existing licensed hospice providers in Florida are required to report admissions data every six months to the Agency. The Agency uses the information to calculate numeric need under the rule methodology.
Petitioners keep records indicating, for their record keeping purposes, e.g., when a person contacts the hospice program and when the person is admitted. Petitioners use software to assimilate this type of information. Petitioners also maintain patient records that contain this type of information. However, this information is not specifically gathered and maintained for the purpose of determining when a person is actually "referred" to a hospice program and later "admitted" and whether "persons" are admitted within 48 hours from being referred.
During discovery in pending CON proceedings following preliminary agency action, Petitioners produced information, related to this record, to Palm Coast or related entities. Palm Coast or related entities have used this information in their CON applications to justify a "special circumstance" under the 48-hour rule. See generally Pet 6, 17, 17A and PC 75-78.
See also T 987-995.
It is a fair inference that Palm Coast or related entities have and will use this information in CON application cases pending at DOAH. See generally Palm Coast's February 14, 2008, Request for Judicial Notice, items 1-18. It is the use of the information by Palm Coast or related entities, coupled with Palm Coast's or related entities interpretation of the 48-hour
rule that caused Petitioners to file the rule challenges in this proceeding.
LifePath and Suncoast are regulated by and subject to the provisions of Rule 59C-1.0355. See generally Pet 30 at 2, item 2.
The 48-hour rule is a CON application criterion, a planning standard, that is not implicated unless and until an applicant relies on this provision in its hospice CON application and uses data provided by, e.g., existing providers such as Petitioners.
Subject to balancing applicable statutory and rule CON criteria, application of the 48-hour rule may provide an applicant with a ground for approval of its CON application by indicating a need for a new hospice program. This may occur either leading up to the Agency's issuance of its SAAR, see Section 408.039(4)(b), Florida Statutes, stating the Agency's preliminary action to approve a CON application, or ultimately with the entry of a final order following a proceeding conducted pursuant to Section 120.57(1), Florida Statutes.
This information may also be considered during a public hearing if the Agency affords one. § 408.039(3)(b), Fla. Stat.
Existing hospice providers, such as LifePath and Suncoast, may be substantially affected by the Agency's consideration of this information, especially if the Agency
preliminarily concludes (in the SAAR) that a CON application should be approved based in part on application of the 48-hour rule. At that point, existing hospice providers have the right to initiate an administrative hearing upon a showing that its established program will be substantially affected by the issuance of the CON. See § 408.039(5)(c), Fla. Stat. Existing providers may also intervene in ongoing proceedings initiated by a denied applicant. Id.
Petitioners have proven that they are substantially affected by the application of the 48-hour rule.
Rule 59C-1.035(4)
Prior to the Agency's adoption of Rule 59C-1.0355 in 1995, the Agency adopted Rule 59C-1.035, which included, in material part, a numeric need formula. In a prior rule challenge proceeding, it was alleged that Rule 59C-1.035(4) and in particular the numeric need formula was invalid.
Paragraph (4)(e) provided:
(e) Approval Under Special Circumstances. In the absence of need identified in paragraph (4)(a), the applicant must provide evidence that residents of the proposed service area are being denied access to hospice services. Such evidence must demonstrate that existing hospices are not serving the persons the applicant proposes to serve and are not implementing plans to serve those persons. This evidence shall include at least one of the following:
Waiting lists for licensed hospice programs whose service areas include the proposed service area.
Evidence that a specifically terminally ill population is not being served.
Evidence that a county or counties within the service area of a licensed hospice program are not being served.
Rule 59C-1.035(4), including paragraphs (4)(e)1.-3., was determined to be invalid. Catholic Hospice of Broward, Inc. v. Agency for Health Care Administration, Case No. 94-4453RX, 1994 Fla. Div. Admin. Hear. LEXIS 5943 (DOAH Oct. 14, 1994), appeal dismissed, No. 1D94-3742 (Fla. 1st DCA Jan. 26, 1995). However, other than quoting from paragraph (4)(e) because it was included as part of the rule, there was no specific finding or conclusion regarding the validity of paragraphs (4)(e)1.-3.
The successor rule, Rule 59C-1.0355(4)(d)1.-3., changed the preface language and substantially retained paragraphs (4)(e)2. and 3., now paragraphs (4)(d)1.-2., but omitted paragraph(4)(e)1. (waiting lists) and added paragraph(4)(d)3. (the 48-hour rule).
Rule 59C-1.0355(4)(d)1.-3.
Elfie Stamm has been employed by the Agency in different capacities. Material here, Ms. Stamm was the health services and facilities consultant supervisor for CON and budget review
from July 1985 through June 1997. Since 1981, Ms. Stamm has had responsibility within the Agency for rule development.
In and around 1994 and prior to the former hospice rule being invalidated, a work group was created for the purpose of developing a new hospice rule. Input was requested from the work group. Various hospice providers throughout the state participated in the rule development process.
It appears that there was an attempt to replace the waiting list standard in the prior rule with the 48-hour standard. (There had been general objections made to the waiting list standard in this and other Agency rules.)
The language for the 48-hour rule apparently came from the work group, rather than from Agency staff, although there is no evidence indicating which person or persons suggested the language. The Agency kept minutes of a meeting conducted on June 30, 1994, to discuss the proposed hospice rule, including the 48-hour rule. The minutes were kept to record any criticisms or comments regarding the proposed hospice rule. The minutes of a rule workshop "only addresses issues where people have concerns and varying opinions." The record does not reveal that any adverse comments were made regarding the 48-hour rule.
In 1995, the Agency, adopted Rule 59C-1.0355, including Rule 59C-1.0355(4)(d)1.-3. that provides:
(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.6
The 48-hour rule, in its present iteration at issue in this proceeding, has been a final rule since 1995.7
The Agency's hospice need methodology is set forth in Rule 59C-1.0355(4), which is entitled "Criteria for Determination of Need for a New Hospice Program."
Rule 59C-1.0355(4) is comprised of four paragraphs, (4)(a) through (4)(e). Paragraph (4)(a) sets forth the process for the Agency's calculations of a numeric fixed need pool for a new hospice program. Paragraph (4)(b) provides that the calculation of a numeric need under paragraph (4)(a) will not normally result in approval of a new hospice program unless each hospice program in the service area in question has been licensed and operational for at least two years as of three
weeks prior to publication of the fixed need pool. Paragraph (4)(c) similarly states that the calculation of a numeric need under paragraph (4)(a) will "not normally" result in approval of a new hospice program for any service area that has an approved but not yet licensed hospice program. Paragraph (4)(d) of the need methodology sets forth the three "special circumstances" quoted above. Paragraph (4)(e) sets forth preferences that may be applicable to a CON application for a new hospice program.
The purpose of the 48-hour rule is to establish a standard by which the Agency may determine whether there is a timeliness of access issue that would justify approval of a new hospice program despite a zero fixed need pool calculation.
Under the hospice need methodology, "special circumstances" are distinguishable from "not normal" circumstances, in part, because the three "special circumstances" are comprised of three delineated criteria rather than generally referencing what has been characterized as "free form" need arguments. Also, "not normal" circumstances may be presented when the Agency's numeric fixed need pool calculations produces a positive numeric need.
Once an applicant demonstrates at least one "special circumstance" in accordance with Rule 59C-1.0355(4)(d)1.-3., the applicant may then raise additional arguments in support of
need, which may be generally classified as "not normal" or as additional circumstances.
Although the 48-hour rule has existed since 1995, it has rarely been invoked as a basis for demonstrating need by a CON applicant seeking approval of a new hospice program. In this light, the Agency has rarely been called upon to interpret and apply the 48-hour rule.
The Agency recently approved a CON application filed in 2003 by Hernando-Pasco Hospice to establish a new hospice program in Citrus County (CON application No. 9678). The application was based, in part, on the 48-hour rule. In its SAAR, the Agency mentions that the applicant presented two letters of support, stating that some admissions to hospice were occurring more than 48 hours after referral. The number of patients was not quantified. There was no challenge to the Agency's preliminary decision. The Agency's decision does not provide any useful guidance with respect to the Agency's interpretation of the 48-hour rule.
The Challenges
Petitioners allege that the 48-hour rule is an invalid exercise of delegated legislative authority because the terms "referred" and "persons" are impermissibly vague and vest unbridled discretion with the Agency. For example, Petitioners point out that the term "referred" is not defined by statute or
rule and contend it is not a term of art within the hospice industry. As a result, Petitioners assert the starting point for the 48-hour period cannot be determined from the face of the rule.
Petitioners also contend that the 48-hour rule is arbitrary and capricious because the language, "excluding cases where a later admission date has been requested" (the parenthetical), is the only exception that may be considered when determining whether there has been compliance with the subsection, when, in fact, there are "other facts and circumstances beyond the control of the hospice provider that may result in delay in admission of a hospice patient." Petitioners also contend that the use of a 48-hour time period for assessing the need for a new hospice provider in a service area notwithstanding the Agency calculation of a zero numeric need is arbitrary and capricious.
Finally, Petitioners allege that the 48-hour rule contravenes the specific provisions of Section 408.043(2), Florida Statutes, which is one of the laws it implements. Specifically, Petitioners further allege that "[b]ecause of its vagueness, its lack of adequate standards, its vesting of unbridled discretion with the Agency, and its arbitrary and capricious nature [the 48-hour rule] fails to establish any meaningful measure of the 'need for and availability of hospices
in the community,' as required by [S]ection 408.043(2), Florida Statutes, and in violation of Section 120.52(8)(c), Florida Statutes (2007)." Joint Prehearing Stipulation at 2-4.
The Agency's and Palm Coast's Positions
The Agency and Palm Coast contend that Petitioners do not have standing to challenge the 48-hour rule, but otherwise assert that the 48-hour rule is not invalid.
In part, Palm Coast and the Agency contend that there is a common and ordinary meaning of the term "referred," which is "that point in time when a specific patient or family member on behalf of a patient or provider contacts a hospice provider seeking to access hospice services. Once a patient, patient family member on behalf of [a] patient, or provider contact [sic] a hospice provider seeking to access services, the 48 hour 'clock' should begin to run." See Joint Prehearing Stipulation at 6; AHCA/Palm Coast PFO at paragraph 79. With respect to the term "persons," Palm Coast and the Agency suggest that whether there are a sufficient number of "persons" that fit within the special circumstance "is a fact-based inquiry, which should be evaluated based on a totality of the circumstances."
The Agency and Palm Coast contend that circumstances other than as stated in the parenthetical may be considered.
Rule 59C-1.0355(4)(d)3. and Specific Terms Referred
The term "referred" is not defined either by AHCA rule, in Chapter 400, Part IV, Florida Statutes, entitled "Hospices," or in Chapter 408, Part I, Florida Statutes, entitled "Health Facility and Services Planning."
The terms "referred" or "referral" are not defined in any Agency final order or written policy.
No definition of "referred" appears in at least three dictionaries, Webster's New World College Dictionary (4th ed. 2005) at 1203, Webster's II New College Dictionary (1999) at 931, and Webster's Ninth New Collegiate Dictionary (1985) at 989, although "refer" is defined, id. For example, "refer" means, in part "[t]o direct to a source for help or information." Webster's II New College Dictionary (1999) at 931.
The term "referral," as a noun, means: "1 a referring or being referred, as for professional service, etc. 2 a person who is referred or directed to another person, an agency, etc." Webster's New World College Dictionary (4th ed. 2005) at 1204.
Referral also means: "The practice of sending a patient to another practitioner or specialty program for consultation or service. Such a practice involves a delegation of responsibility for patient care, which should be followed up to
ensure satisfactory care." Taber's Cyclopedic Medical Dictionary at 1843 (19th ed.). Pet 18A.
Pursuant to the Patient Self-Referral Act of 1992, "'[r]eferral' means any referral of a patient by a health care provider for health care services, including, without limitation: 1. The forwarding of a patient by a health care provider to another health care provider or to an entity which provides or supplies designated health services or any other health care item or service; or 2. The request or establishment of a plan of care by a health care provider, which includes the provision of designated health services or other health care item or service." § 456.053(3)(o)1.-2., Fla. Stat. Essentially, this Act seeks to avoid potential conflicts of interest with respect to referral of patients for health care services.
In the absence of any authoritative definition of "referred," it is appropriate to determine whether the word has a definite meaning to the class of persons within the 48-hour rule. It is also appropriate to consider the Agency's interpretation of the 48-hour rule.
As noted, hospice services are required to be available to all terminally ill patients and their families.
Under the 48-hour rule, a CON applicant has the opportunity to prove that persons are being denied timely access
to hospice services after 48 hours elapses from when they have been referred and they have not been admitted, absent some a reasonable justification. The issue is what elements are necessary for a person to be deemed "referred" and are those elements commonly understood well enough to enable the 48-hour rule to withstand a challenge for vagueness.
If a person calls a hospice organization and inquires about the availability of hospice services, does this call start the 48-hour period? If the same person calls a hospice organization and states that he or she is the caregiver/surrogate for an elderly parent in need of hospice services, does this call start the 48-hour period? If the same person calls a hospice organization and states that he or she is the caregiver/surrogate of an elderly parent in need of hospice services, that the elderly parent is terminally ill, and further requests hospice services, does this call start the 48-hour period? If the same person calls a hospice organization and states that he or she is the caregiver/surrogate of an elderly parent in need of hospice services, that the elderly parent is terminally ill based on a prognosis by a licensed physician under Chapters 458 or 459, Florida Statutes, and further requests hospice services, does this call start the 48-hour period? Does eligibility for hospice services have a bearing on
when a person is referred? If so, what factor(s) constitute eligibility?
Petitioners contend the term "referred," as used in the 48-hour rule, can not be defined with any precision; hence the term is vague.8
Petitioners describe "referred" and "referral," for operational purposes, but not with respect to how the term "referred" is used in the 48-hour rule.
Agency experts define the term differently, although none suggest the term is vague.
Palm Coast offers a definition of "referred" or "referral" as part of its standard of admitting patients within three hours after referral. But, Palm Coast has a more generic and broader definition for the terms when used in the 48-hour rule.
It is determined that "referred" can be defined with some precision and is not vague. But, the various positions and thought processes of the parties are described below and help in framing the controversy for resolution.
LifePath and Suncoast
Over the years, LifePath developed an administrative/operational manual pertaining to policies and procedures. One such policy is the "referral/intake procedure"
that is the subject of a two page written policy, PC 55, revised March 2006.
LifePath does not have a written definition of the terms inquiry or referral.
LifePath does not believe it is reasonable to define referral as the point in time when a patient, a patient family member, or a physician requests hospice services on behalf of a patient. It is too general.
In and around March 2006, LifePath considered a referral to occur when a first contact to LifePath was made by a person requesting hospice services. LifePath used the term referred "to anybody requesting services as a referral source." The admissions staff was directed to gather from the referral source, physician, and/or family any information needed to complete the patient record in the Patient Information System, and contact the patient/family on the same day of referral if available to discuss Lifepath hospice services.
Sometime after December 2006, and the final hearing that was held in the Marion County hospice case, LifePath began revising its referral and intake procedure. According to LifePath, its process did not change, only its manner of characterizing certain terms, such as referral.
At this time, LifePath wanted to track more precisely different occurrences within LifePath's process, including
providing a more accurate label for referral as a request for assessment (RFA) rather than a referral. For LifePath, a referral and a RFA are not synonymous. A RFA is the first contact with the hospice program, which enables staff to follow- up with the prospective patient. A referral is a written physician's order for admission.
At the same time, it had come to LifePath's attention that hospice providers (Palm Coast) defined referral differently. It became clear to LifePath that "Palm Coast had a very different definition of referral than [LifePath] did at that particular time. [LifePath] wanted to be able to clearly track each event during that time process so that [LifePath] would be able to compare with [Palm Coast's] definition of referral at that time."
Stated somewhat differently, LifePath wanted to create a process that would capture several events (e.g., dates and times) consistently and measurable in the intake process rather than comb through paper charts to verify what they were doing.
In April 2007, LifePath made several changes and updates to its written policy/procedure manual and software system, including using the term RFA instead of referral.
According to the revised April 2007 policy, "Intake means: the initial demographic and patient condition information
that is necessary to initiate the process for 'request for assessment.'" PC 56-57.
In summary, for LifePath, a RFA for services is different from and precedes a referral.
A RFA occurs when a person makes an initial contact with LifePath inquiring about access to hospice services. At this point LifePath has a name and an action to follow up with, and the information is entered into LifePath's system. The intake process begins.
A RFA could be made by a physician in the community who orally or in writing requests LifePath to assess a patient for hospice care and/or issues an assess and admit order if appropriate. A call from a physician requesting LifePath to determine whether a person is appropriate for hospice services begins LifePath's RFA process.
An RFA could arise when a person calls LifePath and says that their neighbor is really sick and gives LifePath the neighbors name and telephone number.
RFA used in the April 2007 policy revision (PC 56) means the same as the term referral as used in the March 2006 policy revision (PC 55), i.e., the same point in time when LifePath received the patient's name and began the intake process and ability to follow up. Again, LifePath's intake process did not
change; Lifepath's policies became more specific describing the events that occur during the entire intake process.
According to LifePath, LifePath's revised policy of April 2007 is not reflective of LifePath's interpretation of the 48-hour rule. LifePath's revised policy "outlines the process in the organization in which [Lifepath] begin the intake process and how [LifePath follows] up and then certain moments in time within that process that [LifePath tracks] and monitor[s] as an organization."
The April 2007 revision was followed by a May 2007 revision. LifePath characterized Palm Coast exhibits 55 through
57 as an "interim pilot process" that has been made permanent without any apparent significant changes.
LifePath also perceived Palm Coast as defining referral to mean when a physician issues an admission order. As a result, LifePath began capturing data reflecting that moment in time so that the Agency could compare LifePath's data -- an apples-to-apples approach -- with another provider's data based on a definition that equated referral with a physician's order, but not for the purpose of defining what referred means to LifePath under the 48-hour rule. LifePath now considers a referral to occur when a physician issues an order to admit for the purpose of gathering data that is to be used to compare
other providers, not for the purpose of applying the 48-hour rule.
An assess and admit order in LifePath's view is not a referral until LifePath assesses the patient, obtains consent of care, determines that the patient is appropriate for hospice services, receives certification, and receives an order to admit the patient at that time.
The RFA process is completed when either the patient is admitted to the program or it is determined that the patient cannot be admitted to the program.
LifePath will admit a patient in lieu of having an admitting order when LifePath receives a verbal order to admit the patient from a physician. The verbal order for admission is a referral.
LifePath admits at least 75 percent of its patients within 48 hours of the RFA. However, LifePath gave several reasons outside of a hospice program's control that would delay admission greater than 48 hours from the RFA.
LifePath believes that the Agency's rule is a good rule, but that the language has been taken out of context and used inappropriately.
Like LifePath, Suncoast's interest in the 48-hour rule was stimulated when Palm Coast filed two CON applications requesting approval to provide hospice services in Pinellas
County and both applications claim a need for an additional hospice program based, in part, on the 48-hour rule. Suncoast was concerned with the manner in which referral was being used by Palm Coast in light of data provided by Suncoast and further believes that the 48-hour rule is being manipulated by Palm Coast.
Suncoast uses an elaborate software product that uses terms such as referral. Suncoast does not have a formal policy definition of referral.
Suncoast believes that there are differing definitions of referral among hospice programs. Suncoast filed its rule challenge because according to Suncoast the 48-hour rule is nonspecific; because there is no commonly understood definition of referral in the hospice rule or in the Agency that Suncoast and other hospice providers can depend on. Given the lack of a specific definition, Suncoast and others are unable to determine when the 48-hour clock begins.
As used in its business and not for the purpose of defining the term in the 48-hour rule, Suncoast defines referral to mean "that first contact with [Suncoast's] program where [Suncoast gets] a name and [Suncoast gets] other information about the client so that [Suncoast] can go see them." This definition is not limited Medicare reimbursed hospice services. Inquiry and referral are the starting points. But, Suncoast
states that there is no consistent definition of referral across the hospice industry.
Suncoast also views a referral and an admission as "processes," "not really events." Sometimes the process takes a period of weeks to evolve with many variants, e.g., eligibility, consent, etc.
Palm Coast
In this proceeding, Interrogatories were answered on behalf of Hospice of the Palm Coast - Daytona and by Hospice of the Palm Coast - Waterford at Blue Lagoon with respect to the referral, intake, and admission of patients for hospice services to such facilities. Several terms are defined.
"Referral" is an industry term, referring to contact by an individual or entity including but not limited to a patient, family member on behalf of a patient, HCS, POA, guardian, ALF, nursing home, or hospital seeking to access hospice services.
"Referred" is an industry term, having a plain and ordinary meaning within the hospice field which generally describes when a patient, patient family member or personal representative, or provider contacts a hospice program seeking to access hospice services.
"Intake" [] a general term of art describing the process from referral to admission.
Admission is a general term of art describing that point in time when a patient meets all eligibility requirements including clinical requirements for hospice services and is admitted to a hospice program.
[Assessment is t]he process by which patients are evaluated regarding clinical appropriateness for hospice services including eligibility requirements as set forth by state regulation, Medicare, Medicaid or other third party payors.
[First Contact and initial contact, a]s it relates to referral, intake, and admission
of patients, are defined above as referral and referred.
For Palm Coast's purposes, a referral occurs when someone, e.g., a physician, discharge planner, family or a friend, contacts the hospice agency seeking hospice services.
If the first contact comes from a physician, Palm Coast seeks that physician's approval to admit the patient if the patient is eligible or qualifies for hospice. For Palm Coast, it is typical to obtain a physician's written order for evaluation and admission before the patient is evaluated by the hospice provider.
If a physician calls with a referral of a patient, the call goes to the admission coordinator. Calls from patients or family of a hospice patient would be routed into the clinical division.
A referral does not include contacting a hospice requesting information where a chemotherapy wig or a hospital bed could be purchased.
For Palm Coast, the admissions coordinator determines when an inquiry is an inquiry only or is a referral. The phone
call may turn into a referral when the caller is asking for hospice services to be provided or a family member or to a patient who is at their end of life as opposed to a general request for information about hospice services.
But, Palm Coast does not have written criteria for use by the admissions coordinator in determining whether a phone call is an inquiry or referral, or when an inquiry becomes a referral.
Odyssey also does not have a written definition of referral, although it is a term used in policies and procedures. A referral results when they have a patient's name and a physician's name and someone is calling for hospice services.
Ms. Ventre states that order and referral are not interchangeable. A physician's order is not a referral.
For the purpose of describing Palm Coast's hospice operations and referring to page four of the "referral process" page within Palm Coast's Admission and Patient/Family Rights Policies, a referral begins when a written physician's order is received by the hospice program. Receipt of a physician's written order and referral are synonymous regarding the three- hour standard. Receipt of a telephone call from a potential patient does not qualify as a referral. It is classified as an inquiry. It is unusual for a patient or a patient's family would make a referral themselves. (Ms. Ventre characterized an
inquiry as someone calling for an explanation of hospice services. A phone call could be classified as an inquiry or referral depending on the depth of the call. It may be an inquiry where there is no follow-up.)
Palm Coast uses Odysseys service standard providing that all patients are admitted within three hours from a written physician's order to admit -- 24 hours a day, seven days a week. (This three hour standard is one of 14 standards adopted by Palm Coast/Odyssey.) A clinical assessment is performed within this three hour period.
For Palm Coast, if it has a written physician's order to admit and if the family is available, Palm Coast believes it can meet the three-hour standard.
Palm Coast (and Odyssey) does not track the time between receipt of a physician's order to evaluate and the admission of the patient nor does Odyssey track the time between the receipt of a physician's order to admit and the time the admission of the patient. Palm Coast (and Odyssey) maintains internal mechanisms that are reviewed on a daily basis to evaluate the referral process and if patients are being admitted in a timely fashion.
Sometimes the three-hour standard is not met. The most frequent reason is that the patient and/or the family are
not available to meet. Another is the time it may take to gather documentation from the referring physician.
The Agency
Agency experts defined "referred" differently.
During the final hearing, Ms. Stamm stated that in order for a person to receive hospice services, the person must be qualified or eligible. Eligibility occurs when a physician certifies that the person has a six months or less (for Medicare) or (pursuant to Florida law) one year or less life expectancy. Ms. Stamm clarified her deposition testimony during the final hearing and stated that a person is referred to a hospice program when a request for hospice services is made to the hospice program by or on behalf of the person, coupled with the physician's written certification. A referral would not occur when, e.g., the person or someone on their behalf simply asks for hospice services without the physician's certification. Ms. Stamm was not aware whether this interpretation reflected the Agency's interpretation. She never thought there was a problem with defining "referred" or that it was an issue, so it was not discussed. Also, Ms. Stamm was not aware of how the Agency has interpreted the 48-hour rule.
Mr. Gregg confirmed that there is no written definition of referred, but that it is commonly used in healthcare, i.e., "referral is a mechanism by which a patient is
channeled into some specific new or different provider." Having considered his prior deposition testimony, see endnote 9, and in preparation for the final hearing in this proceeding, for
Mr. Gregg, the 48 hours starts "[a]t the point of initial contact," "the point when some person representing a potential patient calls a hospice or contacts a hospice and says I believe we have a person who is appropriate for your service." The first contact could be made by a hospital discharge planner or nursing home social worker.
Mr. Gregg does not believe that a physician's certification is required to start the 48-hour period or is part of the initial contact.9 Rather, the physician's certification would come at the end of the process, although the "physician is going to be a part of a successful referral." In other words, in order to start the 48-hour period, it would not be necessary for the hospice program to be advised that a patient was terminally ill. The latter determination is required to assess whether "the patient is appropriate and eligible."
Generally, Mr. Baehr agrees with Mr. Gregg's view.
For Mr. Baehr, there is a transfer of responsibility that occurs when the first contact is made at a point in time when either the patient or a family member or some institution, whether it be an assisted living facility, nursing home, hospital, or a physician, makes a contact with a hospice, and in a sense
initiates a process that requires the hospice program to respond and do something so that this process can get underway.
Mr. Baehr opines that referral has a common understanding; it is similar to when a patient is provided with a different medical service, whether it be hospice or some other form of healthcare service, from the one they are currently receiving. Mr. Baehr differentiates this scenario from one that occurs when a person merely seeks information about hospice versus someone who is seeking eventual admission to a hospice program.
Admitted
There is no rule or statute that requires a hospice provider to admit a patient within a certain time period.
In Big Bend Hospice, Inc. v. Agency for Health Care Administration, Case No. 01-4415CON, 2002 Fla. Div. Hear. LEXIS 1584 (DOAH Nov. 7, 2002; AHCA April 8, 2003), aff'd, 904 So. 2d 610 (Fla. 1st DCA 2005), a proceeding involving a challenge to a numerical need (under the fixed need pool) for an additional hospice program, it was expressly found: "40. An admission consists of several components: (a) a physician's diagnosis and prognosis of a terminal illness; (b) a patient's expressed request for hospice care; (c) the informed consent of the patient; (d) the provision of information regarding advance directive to the patient; and (e) performance of an initial
professional assessment of the patient. At that point, the patient is considered admitted. A patient does not have to sign an election of Medicare benefits form for hospice care prior to being admitted." 2002 Fla. Div. Admin. Hear. LEXIS at *26- 27(emphasis added). See also § 400.6095(2)-(4), Fla. Stat.
This finding of fact was adopted by AHCA in its Final Order.
A patient cannot be admitted for Medicare reimbursement without a physician's order. In order to be eligible to elect hospice care under Medicare, an individual must be entitled to Part A of Medicare and be certified by their attending physician, if the individual has an attending physician, and the hospice medical director as being terminally ill, i.e., that the individual has a medical prognosis that his or her life expectancy is six months or less if the illness runs its normal course, and consent. 42 C.F.R. §§ 418.3, 418.20(a)- (b), and 418.22(a),(b),(c)(i)-(ii).
AHCA has defined the term "admitted" by and through its Final Order in Big Bend Hospice and there is no persuasive evidence in this case to depart from that definition, although the definition of the term was discussed during the hearing.
The Agency's definition of "admitted" establishes the outer time limit when the 48-hour period ends for the purpose of the 48-hour rule.
Persons
The 48-hour rule requires the applicant to indicate the number of persons who are referred but not admitted to hospice within 48 hours of the referral (excluding cases where a later admission is requested).
The term "persons" is not defined by AHCA statute or rule. However, the term is generically defined by statute. "The word 'person' includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations." § 1.01(3), Fla. Stat. "The singular includes the plural and vice versa." § 1.01(1), Fla. Stat.
The term "persons" used in the 48-hour rule is not vague, ambiguous, or capricious. In context, it refers to individuals who are eligible for hospice services within the meaning of the 48-hour rule as discussed herein and who request hospice services.
The Agency has not established by rule or otherwise a specific number of persons that can trigger a special circumstance under the 48-hour rule or the specific duration for counting such persons.
The numeric need formula does not encompass every health planning consideration. The need formula is based on
general assumptions such as population, projected deaths, projected death rates applying statewide averages, and admissions.
The special circumstances set forth in Rule 59C- 1.0355(4)(d) compliment other portions of the rule and the statutory review criteria and allows an applicant to identify factors that may be unique to a particular service area, such as a particular provider not providing timely access to persons needing hospice services or a service area that is rural or urban that affects access. One size may not appropriately fit all.
Rather, the term is capable of being applied on a case-by-case basis when (hospice) CON applications are reviewed by the Agency prior to the issuance of the SAAR and thereafter,
if necessary, in a de novo proceeding, through and including the issuance of a final order. The Agency's exercise of discretion is not unbridled.
Excluding cases where a later admission date has been requested10
The 48-hour rule provides in part: "3. 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."
There is some testimony that the parenthetical may be interpreted broadly by the Agency, although Mr. Gregg suggested that the parenthetical was literally limited to when a specific request is made for a later admission date.
There are numerous circumstances beyond the control of a hospice that delay an admission other than when a later admission date is requested under the rule. These circumstances do not necessarily indicate an access problem.11
Petitioners provided examples of situations (other than when a later admission date is requested) that may arise when a person would not be admitted with 48 hours after being referred such as when a patient or family is unresponsive to a contact made by the hospice provider; a patient was out of a hospice program's service area when the initial request for hospice services was made and no immediate plans to transfer to the service area; the patient/family/caregiver chose to stay with another benefit, e.g. skilled nursing facility, versus electing their hospice Medicare benefit; a patient residing in a non-contract hospital, e.g., VA Hospital, when the initial request is made and patient admitted to hospice service when the patient is transferred out of that facility into a contract facility, hospice inpatient setting or home; patient meeting the admission criteria at a later date; a delay in obtaining a physician order for assessment; or when a patient is incompetent
at the time the initial request to consent for care or other delays in obtaining consent.
There are also factors where a referral does not end in an admission. Persons falling in this category would not be counted under the 48-hour rule.
The Agency and Palm Coast suggest that the Agency may consider these non-enumerated factors, whereas LifePath and Suncoast suggest the Agency's discretion is limited. Compare Agency/Palm Coast PFO at paragraphs 90-95, and 141 with LifePath/Suncoast PFO at paragraphs 61-67. The persuasive evidence indicates that the Agency should consider these factors.
Nevertheless, the plain language of the parenthetical excludes from consideration legitimate circumstances that would reasonably explain a delay in admission other than the affirmative request for a later admission date and, as a result, is unreasonably restrictive.
48 hours
Licensed hospice programs are required to provide hospice services to terminally ill patients, 24 hours a day and seven days a week.
It is important that terminally ill persons who request hospice services (or if requested on their behalf), receive access to hospice services in a timely fashion.
There is evidence that approximately 30 percent of patients that are admitted to hospice die within seven days or less after admission, i.e., an average length of stay of seven days or less.
While the opinions of experts conflict, the 48-hour period is a quantifiable standard assuming that there is a precise and reasonable definition of referred and admission. Ultimate Findings of Fact
Having considered the entire record in this proceeding, it is determined that the term "referred" is not impermissibly vague or arbitrary or capricious.
A person is "referred" to a hospice program when a terminally ill person and/or their legal guardian or other person acting in a representative capacity, e.g., licensed physician or discharge planner, on their behalf, requests hospice services from a licensed hospice program in Florida.
This definition presumes that prior to or contemporaneous with the request for hospice services a determination has been made by a physician licensed pursuant to Chapter 458 or Chapter 459, Florida Statutes, that the person is terminally ill, i.e., "that the patient has a medical prognosis that his or her life expectancy is 1 year or less if the illness runs its course." §§ 400.601(10) and 400.6095(2), Fla. Stat. This determination may be made by, e.g., the hospice's medical
director, who presumably would be licensed pursuant to one of these statutes.
The Agency and Palm Coast implicitly suggest that a referral (pursuant to the 48-hour rule) does not include a determination by a physician that the person is terminally ill.
When it comes to "referral" in the generic, non- emergency physician/patient setting, the patient is examined by a physician; the physician determines that the patient needs a further evaluation by a specialist; and the physician refers the patient to the specialist.12 This is usually followed with a written order. The patient, or his or her authorized representative on the patient's behalf, must consent to and request any further examination for the ensuing service to be provided. The point is that the physician makes the referral.
In order to apply the plain and commonly understood meaning of the term "referred" in the context of the 48-hour rule, the physician's determination is a critical component of the referral process, coupled with the patient's request and ultimate consent for services.
Access to hospice services and the time it takes to deliver the service is of the essence for the prospective hospice patient. Having a written and dated physician certification of terminal illness would likely make recordkeeping easier and more predictable to assist in
determining when the 48-hour period starts, in conjunction with the request for services. However, the potential delay in obtaining a written certification from a physician who has determined the patient is terminally ill should not be required to begin the 48-hour period and the referral in light of the purpose of the 48-hour rule. Thus, while a determination of terminal illness is necessary to start the running of the 48 hours under the 48-hour rule, reduction of that determination to writing is not.
This definition, coupled with the 48 hour admission requirement and consideration of other factors affecting an admission, provides a sufficient standard for determining whether a person is receiving hospice services in a timely fashion.13
Whether access has been denied to a sufficient number of "persons" under the rule for the purpose of determining whether a special circumstance may justify approval of a hospice CON application in the absence of numeric need can be determined on a case-by-case basis by the Agency in the SAAR or later, if subject to challenge in a Section 150.57(1), Florida Statutes, proceeding in light of the facts presented. See generally Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So. 2d 258, 261 (Fla. 1st DCA 1985). The use of
the word "persons" in the rule is not vague or arbitrary or capricious.
The time period of "48 hours" is not vague or arbitrary or capricious. Given the plight of terminally ill persons needing hospice services, it is not unreasonable for the Agency to have chosen this time period, in conjunction with "referred" and "admitted" as the beginning and stopping points for determining whether access is being afforded on a timely basis.
The parenthetical language "(excluding cases where a later admission date has been requested)" is arbitrary and capricious because it precludes consideration of other factors that reasonably demand consideration given the rule's purpose.
There is persuasive evidence that persons may not access hospice services (be admitted within 48 hours after being referred) within the 48-hour period based on circumstances that are outside the control of the hospice provider and arguably outside the parenthetical language. To the extent the parenthetical language is construed to limit consideration to one circumstance, the failure to consider other circumstances could unreasonably skew upward or overstate the number of persons that may fit outside the 48-hour period and indicates a lack of timely access when the contrary may be true, having considered the circumstances.
The 48-hour rule can remain intact notwithstanding severance of the parenthetical language. The remaining portions of the rule provide an applicant with a viable avenue to demonstrate a lack of timely access based on a special circumstance.
Finally, even if the 48-hour rule was not in existence, under applicable statutory and rule criteria, see, e.g., Subsections 408.035(2), Florida Statutes, an applicant may provide evidence that persons are being denied timely access to hospice services in a service area. However, such evidence would not necessarily be classified as a special circumstance unless the evidence fit within Florida Administrative Code Rule 59C-1.0355(4)(d)1. and 2.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. §§ 120.56(1) and (3), Fla. Stat.
Standing
"Any person substantially affected by a rule. . .may seek a determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." § 120.56(1)(a), Fla. Stat.
In order to meet the substantially affected test, a person "must establish: (1) a real and sufficiently immediate injury in fact; and (2) 'that the alleged interest is arguably within the zone of risk to be protected or regulated.'" Ward v.
Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 1st DCA 1995)(citation omitted).
"To satisfy the sufficiently and immediate injury in fact element, the injury must not be based on pure speculation or conjecture." Id. (citing Professional Firefighters of Fla., Inc. v. Department of Health & Rehabilitative Services, 396 So. 2d 1194 (Fla. 1st DCA 1981)("A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case, as well as by proving injury in fact. Id. at 1195-1196 (citations omitted)).
Section 120.56, Florida Statutes, does not require a challenger to a rule to wait until the injury occurs to institute a rule challenge. Lanoue v. Florida Department of Law Enforcement, 751 So. 2d 94, 98 (Fla. 1st DCA 1999).
Suncoast and LifePath, as existing providers, participate in CON proceedings involving the application of the 48-hour rule, and are likely to participate in such proceedings in the future. As a result, Suncoast and LifePath are substantially affected by the 48-hour rule and have standing to participate as parties in this proceeding.
Burden of Proof
LifePath and Suncoast have the burden of proving the invalidity of the 48-hour rule in this de novo proceeding by a preponderance of the evidence as to the objections raised. Department of Health v. Merritt, 919 So. 2d 561, 564 (Fla. 1st DCA 2006); St. Johns River Water Management District v. Consolidated Tomoka Land Co., 717 So. 2d 72, 76-77 (Fla. 1st DCA 1998); § 120.56(3)(a), Fla. Stat.
General Rule Challenge Provisions
An existing rule is an invalid exercise of delegated legislative authority if "[t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency"; "enlarges, modifies, or contravenes the specific provisions of law implemented"; or "is arbitrary or capricious." § 120.52(8)(c), (d), and (e), Fla. Stat. "The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires."
§ 120.56(3)(a), Fla. Stat.
"An administrative rule is invalid under section 120.52(8)(d) if it requires the performance of an act in terms that are so vague that men of common intelligence must guess at its meaning." Southwest Florida Water Management District v. Charlotte County, 774 So. 2d 903, 915 (Fla. 2d DCA 2001)(italics
in original). A rule must provide adequate standards which enable the affected public to meet the requirements of the rule. Barrow v. Holland, 125 So. 2d 749, 752 (Fla. 1960).
"A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational." § 120.52(8)(e), Fla. Stat. See also Dravo Basic Materials Co. v. Department of Transportation, 602 So. 2d 632 (Fla. 1st DCA 1992).
Statutory and Rule Interpretation
When a statute and a rule do not specifically define words of common usage, courts must construe such words according to the plain and ordinary meaning. State v. Hoyt, 609 So. 2d 744, 747 (Fla. 1st DCA 1992). See also Florida East Coast Industries, Inc. v. Department of Community Affairs, 677 So. 2d 357, 362 (Fla. 1st DCA 1996).
If a term is not defined in a statute or rule, its common ordinary meaning applies, which generally can be ascertained by reference to a dictionary. Moore, 524 So. 2d at 707. See also Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001).
"Courts must also consider whether the words have a definite meaning to the class of persons within the purview of the statutes," here a rule. State v. Hoyt, 609 So. 2d 744, 747 (Fla. 1st DCA 1992).
"When an agency committed with authority to implement a statute construes the statute in a permissible way, that interpretation must be sustained even though another interpretation may be possible or even, in the view of some, preferable." Humhosco, Inc. v. Department of Health & Rehabilitative Services, 476 So. 2d 258, 261 (Fla. 1st DCA 1985)(citation omitted). Also, "[o]ne challenging the facial validity of a rule construing a statute must show that the agency's interpretation of the statute is clearly erroneous or unauthorized." Id. (citation omitted).
Stated otherwise, an agency is accorded broad discretion and deference in the interpretation of the statutes which it administers and an agency's interpretation should be upheld when it is within a range of permissible interpretations and unless it is clearly erroneous. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716 (Fla. 1983); Florida Department of Education v. Cooper, 858 So. 2d 393, 396 (Fla. 1st DCA 2003); Board of Podiatric Medicine v. Florida Medical Association, 779 So. 2d 659, 660 (Fla. 1st DCA 2001); State of Florida, Department of Administration v. Moore,
524 So. 2d 704, 707 (Fla. 1st DCA 1988). The same principle has been applied "to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration."14 Pan American World
Airways, Inc., 427 So. 2d at 719 (italics in original).
See also Miles v. Florida A and M University, 813 So. 2d 242,
245 (Fla. 1st DCA 2002)(quoting State Contracting & Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 610 (Fla. 1st DCA 1998)('The courts must. . .defer to the expertise of an agency in interpreting its rules.')).
"On the other hand, 'judicial adherence to the agency's view is not demanded when it is contrary to the statute's [here a rule's] plain meaning.'" Sullivan v. Department of Environmental Protection, 890 So. 2d 417, 420 (Fla. 1st DCA 2004)(citations omitted).
Here, the evidence indicates that the 48-hour rule has been applied on rare occasions and the Agency does not have a longstanding or consistent interpretation of the 48-hour rule, e.g., of the term "referred." Thus, less deference has been given to the Agency's interpretation of the 48-hour rule. Certificate of Need (CON) Statutes
The ability of a person to access a particular type of health care service, including hospice services, or facility in a timely fashion is a central theme in the CON application review process. See generally §§ 408.035(1) and (2), Fla. Stat.
In a CON case, the applicant has the burden of proving entitlement to a CON by a preponderance of the evidence, Boca Raton Artificial Kidney Center, Inc. v. Department of Health &
Rehabilitative Services, 475 So. 2d 260, 262 (Fla. 1st DCA 1985), and the award of a CON must be based on a balanced consideration of all applicable statutory and rule criteria. Balsam v. Department of Health & Rehabilitative Services,
485 So. 2d 1341 (Fla. 1st DCA 1986). "[T]he appropriate weight to be given to each individual criterion is not fixed, but rather must vary on a case-by-case basis, depending upon the facts of each case." Collier Medical Center, Inc. v. Department of Health & Rehabilitative Services, 462 So. 2d 83, 83 (Fla. 1st DCA 1985). See also Lawnwood Medical Center, Inc. v. Agency for Health Care Administration, 678 So. 2d 421, 426 (Fla. 1st DCA 1996)("Perhaps in a proper case AHCA might attribute greater weight to certain of the review criteria than that attributed by the hearing officer."); Morton F. Plant Hospital Association, Inc. v. State of Florida, Department of Health & Rehabilitative Services, 491 So. 2d 586 (Fla. 1st DCA 1986)(the hearing officer and AHCA affording more weight to one criterion over other criteria in denying a CON application).
Hospice Statutes
A hospice is a centrally administered corporation providing a continuum of palliative and supportive care for the terminally ill patient and his or her family. § 400.601(3), Fla. Stat.; See also §§ 400.601(6), 400.609, and 400.6095(1), Fla. Stat.
Each hospice is required to provide a continuum of hospice services and make these services available 24 hours a day, 7 days a week. § 400.609, Fla. Stat. See also Fla. Admin. Code R. 59C-1.0355(2)(f).
"'Terminally ill' means that the patient has a medical prognosis that his or her life expectancy is 1 year or less if the illness runs its course." § 400.601(10), Fla. Stat. (The Medicare hospice benefit limits eligibility to persons with a terminal prognosis of six months or less.)
"Admission to a hospice program shall be made upon a diagnosis and prognosis of terminal illness by a physician licensed pursuant to chapter 458 or chapter 459 and shall be dependent on the expressed request and informed consent of the patient." § 400.6095(2), Fla. Stat.
Rule 59C-1.0355
The Agency is required to 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. § 408.034(3), Fla. Stat.
"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. "
§ 408.043(2), Fla. Stat. (emphasis added).
The formula referred to above, or need methodology, is implemented by Florida Administrative Code Rule 59C-1.0355, which sets out in paragraph (4), the Criteria for Determination of Need for a New Hospice Program. Vitas Healthcare Corp. of Central Florida, Inc. v. Agency for Health Care Administration, Case No. 04-3858CON, 2005 Fla. Div. Admin. Hear. LEXIS 881, *61-
62 (DOAH June 14, 2005; AHCA July 7, 2005)(citation omitted).15
In the absence of numeric need, Rule 59C- 1.0355(4)(d)1.-3. "requires that an applicant for a 'special circumstances' CON demonstrate the existence of any one of three factors."16 Hernando-Pasco Hospice, Inc. v. Agency for Health Care Administration, Case No. 01-4460RX, 2003 Fla. Div. Adm. Hear. LEXIS 213 (DOAH March 17, 2003)(emphasis added), aff'd, 880 So. 2d 1223 (Fla. 2d DCA 2004). Further, this rule provision "does not limit the information an applicant for a 'special circumstances' CON may provide to AHCA or offer at hearing." Id. This rule provision "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." Id.
In a prior rule challenge proceeding, it was found that "[t]he challenged Rule [59C-1.0355(4)(d)1.-3.] 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." Hernando-
Pasco Hospice, Inc. v. Agency for Health Care Administration. (emphasis added).17
The ability of a person to access a particular type of health care service or facility is a central theme in the CON application review process and applicable with respect to access to hospice services. To this end, the 48-hour rule implements this theme.
Rule 59C-1.0355(4)(d)3. and Specific Terms
Referred; Admitted; Persons
Hospice services are required to be available to "all terminally ill persons and their families." By rule, from a temporal standpoint, and in the context of the 48-hour rule
allowing consideration of this criterion as a special circumstance in the absence of numeric need in a CON application case, the Agency provides by rule that "persons" may be denied timely access to hospice services if they are not "admitted" within 48 hours after being "referred."18
Petitioners assert that the term "referred" is not capable of being defined with any degree of precision and is otherwise vague.
For the reasons stated in the Findings of Fact, see Findings of Fact 131-137, the term "referred" is not vague, arbitrary, or capricious. It is capable of being defined in a reasonable manner, notwithstanding the lack of a statutory, rule, or industry-wide definition.
The Agency has defined the term "admitted" by and through its Final Order in Big Bend Hospice and there is no persuasive evidence in this case to depart from that definition, although the definition of the term was discussed during the hearing. There is no persuasive evidence that admitted has been defined in an unreasonable manner.
The term "persons" is not defined by AHCA statute or rule. However, the term is generically defined by statute.
§ 1.01(3), Fla. Stat. "The singular includes the plural and vice versa." § 1.01(1), Fla. Stat.
It was not proven that the term "persons" used in the 48-hour rule is vague, ambiguous, or capricious. In context, it refers to individuals who are eligible for hospice services within the meaning of the 48-hour rule. The term is capable of being applied on a case-by-case basis when (hospice) CON applications are reviewed by the Agency prior to the issuance of the SAAR and thereafter, if necessary, in a de novo proceeding, through and including the issuance of a final order.19
Excluding cases where a later admission date has been requested
It is not apparent in this record why the Agency chose the parenthetical language in 1995, although it would have been cumbersome at best for the Agency to list all of the possible circumstances in the rule.
It was proven that there are legitimate circumstances that may arise when a person is not admitted within 48 hours after being referred and that the Agency should consider these circumstances.
Notwithstanding the Agency's belief that it can consider circumstances other than the one stated, the plain and ordinary meaning of the parenthetical expressly provides that only one circumstance can toll the 48-hour period, i.e., "where a later admission date has been requested."
It was proven that it is arbitrary and capricious to essentially toll the running of the 48-hour period based on only the one circumstance detailed in the parenthetical language.
However, the parenthetical language, "[e]xcluding cases where a later admission date has been requested," is not inseparable from the remaining portion of the 48-hour rule and can be logically separated from the remaining valid provisions as the purpose of the 48-hour rule remains intact. Stated otherwise, the remaining portions of the 48-hour rule remain complete after the invalid provision is stricken.
See generally Moreau v. Lewis, 648 So. 2d 124, 128 (Fla. 1995))(quoting Presbyterian Homes of Synod v. Wood, 297 So. 2d 556, 559 (Fla. 1974)); Punta Gorda HMA, Inc. v. Agency for Health Care Administration, Case No. 98-3420RX, 1999 Fla. Div. Adm. Hear LEXIS 5181, *10 (DOAH Sept. 16, 1999), appeal dismissed, 757 So. 2d 505 (Fla. 2d DCA 2000).
The 48-hour rule does not contravene Section 408.043(2), Florida Statutes
Petitioners did not prove that the remaining portion of the 48-hour rule contravenes the specific provisions of Section 408.043(2), Florida Statutes, which is one of the laws it implements. The remaining portions of the 48-hour rule provide adequate standards to guide the Agency when it exercises its discretion to approve or deny a CON application for hospice
services. Further, the remaining portions of the 48-hour rule, in conjunction with other statutory and rule criteria, provide a meaningful measure of the need for and availability of hospices in the community as required by Section 408.043(2), Florida
Statutes.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is:
ORDERED that the petitions to declare Florida Administrative Code Rule 59C-1.0355(4)(d)3. invalid are granted in part and dismissed in part. They are granted to the extent the parenthetical language, i.e., "(excluding cases where a later admission date has been requested)" has been found to be invalid. The petitions are dismissed to the extent the remaining portions of the 48-hour rule, i.e., "[t]hat there are persons referred to hospice programs who are not being admitted within 48 hours. The applicant shall indicate the number of such persons[,]" are not invalid and are intact.
DONE AND ORDERED this 14th day of May, 2008, in Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
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 14th day of May, .
ENDNOTES
1/ During the course of this proceeding, two in camera inspections of documents were conducted that ultimately resulted in the entry of two protective orders on September 13, 2007, (pertaining to LifePath and Suncoast producing confidential documents) and October 15, 2007, (pertaining to Palm Coast producing confidential documents). All of the documents produced for the in camera inspections were returned to the respective parties producing the documents.
2/ See generally Beverly Health and Rehabilitative Services, Inc. v. Agency for Health Care Administration, 708 So. 2d 616 (Fla. 1st DCA 1998); but see Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So. 2d 258, 261 (Fla. 1st DCA 1985)(characterizing a claim that the agency acted in an arbitrary and capricious manner as an attack on the agency's exercise of its discretion rather than a facial challenge to a challenged rule).
3/ Numeric need for hospice is determined by the formula set forth in Florida Administrative Code Rule 59C-1.0355(4)(a).
4/ Mr. Gregg described the CON application process in detail. Agency decisions are based on a weighing and balancing of all applicable statutory and rule factors. Mr. Gregg implicitly disagreed with other testimony that proof under the 48-hour rule would constitute a presumption of need. T 740-741, 745-746.
5/ Subject to confidentiality restrictions, information regarding referrals to a hospice may be obtained from, e.g., a hospital that refers a patient to hospice, a discharge planner, or physicians who refer patients to hospice. It is uncertain whether any of these sources would be a reasonable source of referral information.
6/ By its express terms, Rule 59C-1.0355 implements the provisions of Subsections 408.034(3), 408.036(1)(d) and (e), and 408.043(2), Florida Statutes. "It is the intent of the agency to ensure the availability of hospice programs as defined in this rule to all persons requesting and eligible for hospice services, regardless of ability to pay." Fla. Admin. Code R.
59C-1.0355(1). The Agency also relies on Sections 408.035, 408.036(1)(c) and (f), and 400.606(4) and (5), Florida Statutes, as specific statutory provisions being implemented. See Fla.
Admin. Code R. 59C-1.0355. The Agency further cites to Section 408.034(3) and (5) and 408.15(8), Florida Statutes, for specific authority for the rule. Id.
7/ Karen Rivera is employed with the Agency as "health services facilities consultant supervisor and laboratory licensing unit." Ms. Rivera was a supervisor of the unit that started rule development in May, 2003, through at least April, 2006. She offered no opinions regarding the validity of the 48-hour rule. Rather, Mr. Rivera identified several pages from the Agency's rule development file, AHCA 5, that span from approximately 2003 to 2006. These documents reflect Agency drafts of proposed changes to, e.g., Rule 59C-1.0355 and comments made by persons either attending workshops and or who otherwise submitted responses to the proposed changes. Draft changes included but were not limited to a proposed definition of the term "admission" and deletion of the sentence "[t]he applicant shall indicate the number of such persons," but no other proposed changes to the 48-hour rule. See, e.g., PC 80, Ex. 1, pp. 291 and 299; 714 and 721; 1049(comment to keep the proposed stricken language to Rule 59C-1.0355(4)(d)3.). There does not appear to be any comment in this rule file regarding the 48-hour rule other than as noted.
8/ In addition to the testimony of other witnesses and other evidence adduced by Petitioners, Petitioners offered the testimony of Eugene Nelson, an expert in health care planning, to support their position. Mr. Nelson opined that the 48-hour rule fails to create a measurable access standard from a timeliness perspective. To this end, Mr. Nelson stated that the term referred is not defined and does not have any common meaning and, as a result, there is no meaningful way to measure the starting point for application of the 48-hour rule; that the 48-hour rule does not provide for a specific number of "persons" who may not receive timely access under the rule such that a special circumstance would result; there is no durational time limit mentioned in the rule, i.e., one month, a year, etc.; and the parenthetical language excludes from consideration reasonable circumstances why a person is not admitted within 48 hours from being referred, and, as a result, should not be counted as a person being denied access under the rule. In part, Mr. Nelson stated that a CON applicant could offer evidence that a number of persons have been denied timely access to hospice services separate and apart from the 48-hour rule.
T 640-641. But, such evidence would not be considered a special circumstance unless it fit within the 48-hour rule.
9/ Mr. Gregg was deposed in Hospice of Palm Coast, Inc. v. Agency for Health Care Administration and The Hospice of the Florida Suncoast, Inc., Case No. 06-1272CON. Pet 19. In part, Mr. Gregg stated that in the context of describing the information kept by existing hospice providers, "[t]here is not a clear definition of what constitutes a referral." Among various ways of defining the term referral, Mr. Gregg stated that "a referral begins when a physician signs an order," although verbal orders may be acceptable depending on protocols at the various hospice programs. Pet 19 at 58-60, 89-90.
10/ "Excluding" is not defined by statute or rule. "[E]xclude" means: "1. To keep out : BAR. 2. To omit from notice or consideration : DISREGARD. 3. To put out : EXPEL." Webster's II New College Dictionary (1999) at 391. "[E]xclusion" means: "The act of excluding or state of being excluded." Id. "[W]here a statute enumerates the thing or things on which it is to operate, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned." Thayer v. State,
335 So. 2d 815, 817 (Fla. 1976)(applying the general principle of statutory construction - expressio unius est exclusio alterius)(citation omitted); see also Bush v. Holmes, 919 So. 2d 392, 407 (Fla. 2006)(where a constitutional provision expressly
provides for the manner of doing a thing, it impliedly forbids its being done in a substantially different manner). Unlike the phrase, including but not limited to, which is a phrase of enlargement rather than limitation, see generally Argosy Limited v. Hennigan, 404 F.2d 14 (5th Cir. 1968) and Miami County Day School v. Bakst, 641 So. 2d 467, 469 (Fla. 3d DCA 1994), review denied, 651 So. 2d 1195 (Fla. 1995), as used in the 48-hour provision, "excluding" means that circumstances for not admitting a person within 48-hours after being referred, other than the one expressly stated, are not included in the parenthetical. Stated otherwise, the 48-hour provision excludes consideration of other circumstances or types of circumstances.
11/ Mr. Gregg explained that the parenthetical language is very specific, but it does not state by whom the request is made.
Consistent with other testimony, there may be many reasons why there is a delay in an admission, but not all would equate to a specific request. This is one reason why the Agency does not rely solely on numbers; they need to assess qualitative factors as well in order to determine if there is an access problem.
Mr. Gregg stated that the Agency could consider circumstances other than the parenthetical language.
12/ Other health care providers may refer patients to specialists. Physician is used here in light of the statutory requirement that a licensed physician make the medical determination or prognosis of terminal illness in the case of a hospice patient for the purpose of admission to a hospice program. §§ 400.601(10) and 400.6095(2), Fla. Stat.
13/ The CON applicant has the burden of proof, including the burden to prove there is an access problem under the 48-hour rule. The most likely source of data for the applicant is existing hospice providers, who are not required to maintain (and report to AHCA) uniform records and information regarding when a referral begins and when a patient is actually admitted, although they report admission information and maintain information about their patients in patient and computer- generated records. Perhaps it may make the 48-hour rule more meaningful, if existing hospice providers or others maintained records regarding when a patient is referred for services, when he or she is admitted, and an explanation why a patient was not admitted within 48-hours after being referred. If this were the case, the Agency, existing providers, and applicants may have an accessible data base to determine whether an access problem exists under the 48-hour rule.
During the final hearing, Mr. Gregg commented on the affect of Chapter 2006-155, Section 6, Laws of Florida, on the Agency's ability to adopt rules pertaining to hospice. (Section 6 provides: "To protect the citizens of the state, it is the intent of the Legislature that no change in law be made to the hospice licensure or certificate-of-need provisions until the year 2012 to correctly analyze and evaluate the impact of this act on the quality of hospice care in the state." AHCA 4;
T 773-777.) It appears that an earlier draft of this act was recommended by the Elder & Long-Term Care Committee providing in part: ". . .that no change in law or in administrative rule be made. . . ." See HB 1417, storage name hb1417-01-c1 (emphasis added). See also House of Representatives Staff Analysis, HB 1417 CS, April 18, 2006, storage name h1417e.HFC.doc. at 8. The emphasized language was not included in the final act. No determination is made regarding the affect of Section 6 on the ability of the Agency to adopt rules pertaining to this subject matter.
14/ The converse is also true that absent a "good reason why the agency's abrupt change of established policy, practice, and procedure should be sanctioned," the agency must implement changed interpretations through rulemaking. Cleveland Clinic Florida Hospital v. Agency for Health Care Administration,
679 So. 2d 1237, 1241-1242 (Fla. 1st DCA 1996)(citations omitted); see also Courts v. Agency for Health Care Administration. 965 So. 2d 154, 158 (Fla. 1st DCA 2007).
15/ "While a fixed need pool establishes a presumption of need, it serves only as the starting point of an analysis of need." Id. at *63(citations omitted). A positive numeric need shown under a formula or methodology is a beginning point for determining need. Balsam v. Department of Health & Rehabilitative Services, 486 So. 2d 1341 (Fla. 1st DCA 1986).
The converse is also true that "[a] lack of numeric need under the rule formula establishes a rebuttable presumption of no need." Beverly Enterprises-Florida, Inc. v. Agency for Health Care Administration, Case Nos. 92-6656, 92-6659-6662, and 92-
6669, 1994 Fla. Div. Admin. Hear. LEXIS 5159, *50 (DOAH July 20,
1994; AHCA Oct. 17, 1994)(citations omitted), aff'd, 657 So. 2d 1165 (Fla. 1st DCA 1995). Further, a conclusive presumption is not permissible. See generally Department of Health & Rehabilitative Services v. Johnson and Johnson, 447 So. 2d 361 (Fla. 1st DCA 1984). For example, "[s]ituations exist where a proposal for a new provider should be denied where the actual circumstances in the community do not demonstrate a true need
for additional service providers, even though the numeric need methodology indicates need." Vitas, 2005 Fla. Div. Admin. Hear. LEXIS at *63.
16/ In at least two hospice cases, the Agency agreed that the "special circumstances" rule "does not prohibit applicants from showing that other 'not normal circumstances' exist in the service area." Big Bend Hospice, Inc. v. Agency for Health Care Administration, Case Nos. 02-0455CON and 02-0880CON, 2003 Fla.
Div. Admin. Hear. LEXIS 1314, *76-77 (DOAH Nov. 7, 2002; AHCA
March 18, 2003), aff'd, 904 So. 2d 610 (Fla. 1st DCA 2005). See also Hope of Southwest Florida, Inc. v. Agency for Health Care Administration, Case No. 03-4067CON, 2005 Fla. Div. Admin. Hear. LEXIS 745, *90-91 (DOAH Jan. 24, 2005; AHCA May 5, 2005).
17/ The ultimate issue in the prior rule challenge case was whether Florida Administrative Code Rule 59C-1.0355(4)(d)1.-3. was an invalid exercise of delegated legislative authority. The ALJ concluded that it was not invalid. The ALJ stated that authority for this 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 on the basis of the need for and availability of such services." Id. at *9 (italics in original). The ALJ also referenced Section 408.034(3), Florida Statutes, as "[m]ore specific authority" and concluded that "[t]he three factors in the Rule [including the 48-hour provision] are specifically authorized by Section 408.034(3), Florida Statutes." Id. at *10 (italics in original). Also, it was concluded, in part, that "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," necessarily referring, in part, to subsection 59C-1.0355(4)(d)3. Id. Notwithstanding, no argument was made that any of the terms in the 48-hour rule were vague.
18/ The court has recognized and supported the principle that rules may clarify and flesh out the details of an enabling statute. Agencies utilize their expertise by creating rules to effectuate specific duties. "The Legislature itself is hardly suited to anticipate the endless variety of situations that may occur or to rigidly prescribe the conditions or solutions to the often fact-specific situations that arise." Avatar Development Corp. v. State, 732 So. 2d 199, 204 (Fla. 1998). See also Charlotte County, 774 So. 2d at 917 (quoting Cole Vision Corp. v. Department of Business and Professional Regulation, 688 So.
2d 404, 410 (Fla. 1st DCA 1997)("The sufficiency of a rule's standards and guidelines may depend on the subject matter dealt with and the degree of difficulty involved in articulating finite standards.")).
19/ See generally Environmental Trust v. State, Department of Environmental Protection, 714 So. 2d 493, 498 (Fla. 1st DCA 1998)("An agency statement of explaining how an existing rule of general applicability will be applied in a particular set of facts is itself not a rule. If that were true, the agency would be forced to adopt a rule for every possible variation on a theme, and private entities could continuously attack the government for its failure to have a rule that precisely addresses the facts at issue. Instead, these matters are left for the adjudication process under section 120.57, Florida Statutes.").
COPIES FURNISHED:
Richard Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308
Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Holly Benson, Secretary
Agency for Health Care Administration Fort Knox Building, Suite 3116
2727 Mahan Drive
Tallahassee, Florida 32308
Liz Cloud, Program Administrator Administrative Code
Department of State
R. A. Gray Building, Suite 101 Tallahassee, Florida 32399
Scott Boyd, Executive Director and General Counsel
Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Paul H. Amundsen, Esquire Amundsen & Smith, P.A.
502 East Park Avenue Tallahassee, Florida 32301
Karen A. Putnal, Esquire
Parker, Hudson, Rainer & Dobbs, LLP The Perkins House
118 North Gadsden Street, Suite 200 Tallahassee, Florida 32301
H. Darrell White, Esquire
LifePath Hospice and Palliative Care, Inc. 12973 Telecom Parkway, Suite 100
Temple Terrace, Florida 33637
Mark A. Emanuele, Esquire Panza, Maurer, & Maynard, P.A.
Bank of America Building, Third Floor 3600 North Federal Highway
Fort Lauderdale, Florida 33308
Lorraine M. Novak, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
Edward B. Carlstadt, Esquire 2700 Bank of America
101 East Kennedy Boulevard Tampa, Florida 33602
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The
Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| May 14, 2008 | Recommended Order | Petitioners proved that the parenthetical language included in Rule 59C-1.0355(4)(d)3. (the 48-hour rule) is an invalid exercise of delegated legislative authority, whereas the remaining portions are not invalid and remain intact. |
