STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLANNED PARENTHOOD OF SOUTHWEST AND CENTRAL FLORIDA, INC.,

Petitioner,

vs. Case No. 16-0585RU

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

/

FINAL ORDER ON CLAIM FOR ATTORNEYS’ FEES AND COSTS UNDER SECTION 120.595(4)(b)

An administrative hearing was held on April 5, 2016, on Petitioner’s claim for attorneys’ fees and costs brought pursuant to section 120.595(4)(b), Florida Statutes, in Tallahassee, Florida, before James H. Peterson III, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Allen R. Grossman, Esquire Grossman, Furlow & Bayó, LLC 2022-2 Raymond Diehl Road Tallahassee, Florida 32308

For Respondent: Timothy P. Atkinson, Esquire

Segundo J. Fernandez, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Planned Parenthood of Southwest and Central Florida, Inc. (Petitioner), is entitled to an award of attorneys’ fees and costs against the Agency for Health Care Administration (Respondent or AHCA) pursuant to section 120.595(4)(b), Florida Statutes,1/ and, if so, in what amount(s).

PRELMINARY STATEMENT

On February 1, 2016, Petitioner filed with the Division of Administrative Hearings (DOAH), a Petition to Determine Invalidity of Agency Statements (Unadopted Rule Challenge), which asserted that Respondent’s online reporting form should be, but had not been, adopted as a rule. A Notice of Hearing was entered on February 9, 2016, scheduling a final hearing in the Unadopted Rule Challenge for March 3, 2016.

On February 15, 2016, AHCA published a Notice of Proposed Rule to amend Florida Administrative Code Rule 59A-9.034, to incorporate by reference the online reporting form that was the subject of the Unadopted Rule Challenge. By operation of law, AHCA’s publication of the Notice of Proposed Rule automatically stayed the Unadopted Rule Challenge pending rulemaking.

On February 17, 2016, Petitioner filed a motion to vacate the automatic stay, requesting that the stay be lifted so that the Unadopted Rule Challenge could go forward, and asserting, inter alia, a claim for attorneys’ fees and costs under section

120.595(4)(b). Following a telephonic hearing, an Order Denying Motion to Vacate Stay was entered on February 23, 2016, denying Petitioner’s request to lift the stay. In addition, the Order Denying Motion to Vacate Stay required AHCA to file written notices stating that AHCA would not rely on the alleged unadopted rule to establish a prima facie case or liability in three pending cases brought by AHCA against Respondent alleging that Respondent had violated the scope of its license. The Order Denying Motion to Vacate Stay further provided that Petitioner’s request for attorneys’ fees and costs pursuant to section 120.595(4)(b), would be set for hearing by separate Order following the parties’ submission of mutually-available hearing dates.

On February 24, 2016, in compliance with the Order Denying Motion to Vacate Stay, Respondent filed its copy of the required notice in the three pending cases against Petitioner (DOAH Case Nos. 15-5486, 15-5487, and 15-5488). Following the parties’ submission of proposed hearing dates, a hearing on Petitioner’s request for attorneys’ fees and costs was scheduled for April 5, 2016.

During the hearing, Petitioner offered Petitioner’s Exhibits A through F into evidence, all of which were accepted. Petitioner presented the testimony of Seann Frazier, who was

accepted as an expert in administrative law. In addition, Petitioner’s counsel of record, Ms. Gallagher and Mr. Grossman, testified briefly as to particular items on the time records submitted as a basis of the award of fees.

Respondent did not present witnesses, but offered Exhibits

1 through 7 into evidence, all of which were accepted.

A Transcript of the proceedings was filed on April 27, 2016. The original due date for proposed final orders was 10 days after the filing of the Transcript. However, due to the undersigned’s schedule, an extension of the due date was offered and both parties agreed. The due date for proposed final orders was extended until May 27, 2016. The parties timely submitted their respective Proposed Final Orders, both of which were considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Section 390.0112, Florida Statutes, requires abortion clinics to report the number of pregnancy terminations (abortions) performed each month. The statute requires clinics to report the number of procedures performed, the reason for same, the period of gestation at the time such procedures were performed, and the number of infants born alive during or immediately after an attempted abortion.

   
   

2. Rule 59A-9.034 is a rule adopted by AHCA (and its predecessor agencies) in various forms and different numbers since at least 1994. The history of the rule reflects that, from 1994 until 2008, each agency charged with the duty to collect information from abortion clinics required by statute has used a form and adopted the form by rule. AHCA amended the rule in 2006 and specifically incorporated Department of Health Form 1578 from May 2004 by reference. The 2006 rule stated in pertinent part:

   Pursuant to Chapters 382 and 390, F.S., an abortion clinic must submit a report each month to the Office of Vital Statistics of the Department of Health, regardless of the number of terminations of pregnancy.

   Monthly reports must be received by the department within 30 days following the preceding month using DOH Form 1578, May 2004, “Monthly Report of Induced Terminations of Pregnancy”, hereby

   incorporated by reference, and which can be obtained by written request from the Department of Health . . . .

   
   

3. In 2008, AHCA amended rule 59A-9.034 in a manner that changed the reporting requirements so that reports were no longer to be sent to the Office of Vital Statistics within the Department of Health. The amendment no longer incorporated a reporting form by reference. Rather, the 2008 amendment deleted reference to a Department of Health form and, instead, required that reports be submitted to AHCA using an online portal system accessed at http://ahca.myflorida.com/ITOP. Once logged into

   
   

   the online portal, the providers would then complete the online Induced Termination of Pregnancies (ITOP) reporting form. The 2008 amendment failed to incorporate the new online ITOP reporting form into the rule by reference.

4. Since the 2008 rule amendment, the online ITOP reporting form has been accessible only through the portal and is applicable to all abortion providers in Florida.

5. In addition to the information required to be reported under section 390.0112, the online ITOP reporting form also solicited various information not specified by statute. For example, while the statute requires the “reason for termination” to be reported, the online ITOP reporting form included a specific and limited list of possible reasons from which a provider must choose. In addition, the statute requires the “period of gestation” at termination to be reported by the provider, but does not provide guidance as to how the “period of gestation” is determined. The challenged online ITOP reporting form, however, creates three time periods of varying “weeks of gestation” from which the provider must choose and insert the number of procedures performed in that time period. The form also requires disclosure of data regarding a provider’s facility administrator, which is not required by the statute.

   
   

6. By letter dated September 11, 2015, and in accordance with section 120.595(4)(b), Petitioner advised AHCA that the online ITOP form constituted an unpromulgated rule.

7. Pursuant to section 120.54(2), on October 1, 2015, AHCA published a Notice of Development of Rulemaking indicating that the Agency planned to develop an amendment to rule 59A-9.034 that would incorporate the online ITOP form by reference. The Notice of Development of Rulemaking advised that a rule- development workshop would be held on October 19, 2016, if requested in writing.

8. Petitioner made a written request for a workshop and thereafter attended the workshop held by AHCA on October 19, 2015. Petitioner also timely submitted, by facsimile transmission, written comments regarding the Notice of Development of Rulemaking on October 26, 2015.

9. Petitioner’s written comments on the Notice of Development of Rulemaking alleged that the form contravened the law, was vague and confusing, and arbitrary and capricious. The comments specifically identified perceived problems with the form and stated that the form utilizes terms that are not defined either in statute or in administrative rules promulgated by AHCA. The written comments suggested that the text of the online ITOP reporting form be modified to either require the reporting of gestational age determined in a fashion consistent

   
   

   with the reporting of related vital statistics in Florida or, in the alternative, to include an instruction that “weeks of gestation” should be counted from the presumed date of fertilization and correct the columns to ensure that all weeks of pregnancy fit within one of the columns included on the online ITOP reporting form.

10. There was no evidence submitted indicating that AHCA took further action on the Notice of Development of Rulemaking with regard to rule 59A-9.034 or the online ITOP reporting form from October 26, 2015, through January 31, 2016.

11. On February 1, 2016, Petitioner filed its Unadopted Rule Challenge with DOAH.

12. On February 15, 2016, AHCA published a Notice of Proposed Rule, proposing to amend rule 59A-9.034 to incorporate by reference the online ITOP reporting form.

13. AHCA argues that the challenged online ITOP reporting form was not a rule. Considering, however, the terms of the challenged online ITOP reporting form and the language of section 390.0112 that the form was designed to implement, it is found that the form is an agency statement of general applicability that implements, interprets, or prescribes law or policy or describes AHCA’s procedure or practice requirements and solicits information that is not specifically stated in the statute being implemented. And, further considering the facts

    
    

    and circumstances of this case in light of the definition of “rule” found in section 120.52(16), discussed infra, it is found that the online ITOP reporting form was an unadopted rule when it was challenged by Petitioner.

14. AHCA failed to demonstrate that it did not know and should not have known that the online ITOP reporting form was an unadopted rule. In addition to being specifically notified in writing by Petitioner on September 11, 2015, that the form may be an unadopted rule, the evidence shows that AHCA knew at various times, and should have known at all times, that the form constituted a rule. The challenged form was previously incorporated in the administrative rules of AHCA’s predecessor agencies (Department of Health and Department of Health and Rehabilitative Services) and by AHCA itself in its own administrative rules prior to 2008 and, notably, by its current, and now completed, effort to incorporate the form by reference in its administrative rules. The form is now AHCA Form 3130- 1010 OL, adopted by reference in rule 59A-9.034.2/

15. Petitioner submitted evidence in support of its claim for attorneys’ fees, but does not seek recovery of costs.

16. Counsel for Petitioner charged their client $300 per hour for the work by Mr. Grossman and Ms. Gallagher, and $150 per hour for the work of their firm’s associate. AHCA stipulated to the reasonableness of those hourly rates. The reasonableness of

    
    

    the hourly rates was confirmed by Seann Frazier, an attorney practicing in Tallahassee, Florida, who was accepted as an expert in administrative law, and whose opinion in that regard is credited.

17. The attorneys’ fee time records submitted by Petitioner include charges incurred prior to AHCA’s publication of the Notice of Proposed Rule on February 15, 2016, as well as time spent after that publication.

18. The amount of time billed by the attorneys for Petitioner for developing and pursuing the challenge to an unpromulgated rule up until AHCA published its Notice of Proposed Rule on February 15, 2016, is reasonable. The time records supporting recovery of Petitioner’s attorneys’ fees incurred in that time period include time to analyze and prepare the initial notice of the unpromulgated rule, prepare for and attend a workshop on the rule development, submit comments and information to AHCA in an effort to persuade it to engage in rulemaking, and to prepare and file the Unadopted Rule Challenge. It is found that all of the entries in the records submitted for the time period prior to February 15, 2016, show time spent that was reasonably related to Petitioner’s Unadopted Rule Challenge and, while not meticulously detailed in all respects, were sufficient to support Petitioner’s claim for that time period.

    
    

19. The attorneys’ fees incurred prior to AHCA’s publication of the Notice of Proposed Rule total $7,170.00.

20. When AHCA filed its Notice of Proposed Rule on February 15, 2016, Petitioner’s Unadopted Rule Challenge was automatically stayed.

21. The time entries submitted for attorney time spent in this case on and after February 15, 2016, relate to Petitioner’s Motion to Vacate Stay, the hearing thereon, preparation of the Order that resulted from that hearing, and work related to its claim for attorneys’ fees. As a matter of fact, all of these fees were incurred after AHCA published its Notice of Proposed Rulemaking. As a matter of law, these post-publication fees are not recoverable under section 120.595(4)(b). See Conclusions of Law, below.

22. The evidence demonstrates, however, that Petitioner’s reasonable attorneys’ fees reasonably related to the Unadopted Rule Challenge accrued prior to February 15, 2016, total

    $7,170.00, and are recoverable against AHCA in this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction of this matter pursuant to sections 120.56(4) and 120.595(4)(b), Florida Statutes.

    
    

24. Section 120.595(4)(b) provides:

    
    

    Upon notification to the administrative law judge provided before the final hearing that the agency has published a notice of rulemaking under s. 120.54(3)(a), such notice shall automatically operate as a stay of proceedings pending rulemaking. The administrative law judge may vacate the stay for good cause shown. A stay of proceedings under this paragraph remains in effect so long as the agency is proceeding expeditiously and in good faith to adopt the statement as a rule. The administrative law judge shall award reasonable costs and reasonable attorney’s fees accrued by the petitioner prior to the date the notice was published, unless the agency proves to the administrative law judge that it did not know and should not have known that the statement was an unadopted rule. Attorneys’ fees and costs under this paragraph and paragraph (a) shall be awarded only upon a finding that the agency received notice that the statement may constitute an unadopted rule at least 30 days before a petition under s. 120.56(4) was filed and that the agency failed to publish the required notice of rulemaking pursuant to s. 120.54(3) that addresses the statement within that 30-day period. Notice to the agency may be satisfied by its receipt of a copy of the

    s. 120.56(4) petition, a notice or other paper containing substantially the same information, or a petition filed pursuant to

    s. 120.54(7). An award of attorney’s fees as provided by this paragraph may not exceed

    $50,000.

    
    

25. Under section 120.595(4)(b), recited above, and the facts of this case, Petitioner is entitled to an award of reasonable attorney’s fees and costs accrued prior to the date of the notice of rulemaking unless AHCA established it did not

    
    

    know and should not have known that the statement challenged was an unadopted rule. Notice must have been provided to AHCA at least 30 days before the Unadopted Rule Challenge was filed and AHCA must have failed to publish a notice of rulemaking under section 120.54(3) to address the challenged agency statement within 30 days of receiving the notice from Petitioner.

26. As noted in the Findings of Fact, above, Petitioner gave written notice to AHCA on September 11, 2015, that the challenged statement may constitute an unadopted rule, well over 30 days prior to filing of its Unadopted Rule Challenge on February 1, 2016. AHCA did not publish a notice of rulemaking until

    February 15, 2016, over five months after receiving notice from Petitioner that the challenged form may be an unadopted rule.

27. Further, AHCA failed to prove that it did not know and should not have known that the challenged statement was an unadopted rule.

28. The pertinent part of section 120.52(16) provides:

    
    

    “Rule” means each agency statement of general applicability that implements, interprets, or prescribe law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule.

    
    

29. In this case, the evidence demonstrated that AHCA knew, and should have known, that the online ITOP reporting form was an agency statement of general applicability that implements, interprets, or prescribes law or policy or describes AHCA’s procedure or practice requirements and solicits information that is not specifically required to be reported under section 390.0112.

30. While Petitioner is entitled to recover attorneys’ fees that are reasonably related to its Unadopted Rule Challenge that accrued prior to AHCA’s publication of its Notice of Proposed Rule on February 15, 2016, it is clear that a claim for attorneys’ fees under section 120.595(4)(b) is limited to “reasonable attorney’s fees accrued by the petitioner prior to the date the notice [of rulemaking] was published.” Id.

31. Petitioner identified a total of 26.4 hours of attorney time for a total amount of $7,170.00, accrued prior to AHCA’s publication of its Notice of Rulemaking. The hourly rate and time spent during that time period were reasonable and sufficiently documented to determine the appropriateness of their recovery.

ORDER

Based upon the foregoing, it is ORDERED that:

Pursuant to section 120.595(4)(b), Petitioner, Planned Parenthood of Southwest and Central Florida, Inc., shall recover from the Agency for Health Care Administration, the sum of

$7,170.00, as reasonable attorneys’ fees accrued and recoverable in this proceeding.

DONE AND ORDERED this 24th day of June, 2016, in Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings This 24th day of June, 2016.

ENDNOTES

1/ Unless otherwise indicated by the context, all citations to the Florida Statutes or the Florida Administrative Code are to current versions.

2/ As of the date of hearing held in this case on April 5, 2016, the Department of State website, www.flrules.org, reflected only a correction submitted by AHCA on March 15, 2016. The rule was later finalized on May 19, 2016, as currently reflected on the Department of State website. The rule, as finalized, now reads:

59A-9.034 Reports.

Pursuant to Section 390.0112, F.S., an abortion clinic must submit a report each month to the Agency, regardless of the number of terminations of pregnancy.

Monthly reports must be received by the Agency within 30 days following the preceding month. Monthly reports must be submitted on the Monthly Report of Induced Terminations of Pregnancy, AHCA Form 3130- 1010 OL, February 2016, which is hereby incorporated by reference. This form is only accepted electronically and is available at: http://ahca.myflorida.com/ITOP. A copy of the form can also be found at: http://www.flrules.cor/Gateway/reference.asp

?No=Ref-06701. Failure to submit this report so that it is timely received by the Agency will result in an administrative fine being imposed pursuant to Section 390.0112(4), F.S.

COPIES FURNISHED:

Julie Gallagher, Esquire Allen R. Grossman, Esquire Grossman Furlow & Bayó, LLC 2022-2 Raymond Diehl Road Tallahassee, Florida 32308 (eServed)

Timothy P. Atkinson, Esquire Segundo J. Fernandez, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110

Tallahassee, Florida 32302 (eServed)

Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

Ernest Reddick, Chief Alexandra Nam Department of State

R. A. Gray Building

500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee Room 680, Pepper Building

111 West Madison Street Tallahassee, Florida 32399-1400 (eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 16-000585RU

Orders for Case No: 16-000585RU