David Watkins, in Tallahassee, Leon County, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Petitioner: Peter A. Lewis, Esquire
Law Offices of Peter A. Lewis, P.L.
For Respondent: Lindsey L. Miller-Hailey, Esquire
Richard Joseph Saliba, Esquire Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 7
Whether Petitioner’s request for extension of deadlines relating to Certificate of Need (CON) Nos. 10176 and 10231, and
Exemption No. E140013 was timely filed, pursuant to Florida Administrative Code Rule 59C-1.018(3), and section 408.040(2)(c), Florida Statutes.1/
On November 17, 2017, the Agency for Health Care Administration (AHCA or Agency) gave notice to Delray Group, LLC, d/b/a Lake View Care Center at Delray (Delray) of its intent to deny Delray’s request for extension of CON termination dates for CON Nos. 10176 and 10231, and Exemption No. E140013.
Delray timely filed a request for formal hearing on the matter November 29, 2017, which the Agency referred to DOAH on December 22, 2017. Thereafter, AHCA filed a Motion to Relinquish Jurisdiction on December 28, 2017, with attached exhibits 1 through 5. The motion was denied by Order dated January 9, 2018, and a final hearing was held at the above mentioned time and location. No witnesses were called to testify at hearing. Respondent’s exhibits 1 through 5 were offered and admitted into evidence without objection.
The one-volume Transcript of the final hearing was filed May 3, 2018. The parties timely filed Proposed Recommended Orders, both of which have been carefully considered in the preparation of this Recommended Order.
AHCA is the state agency responsible for administering the CON program, and is delegated authority to regulate and monitor CONs in the State of Florida, pursuant to the Health Facility and Services Development Act, sections 408.031-045.
Delray Group, LLC, is the holder of CON Nos. 10176 and 10231, and Exemption No. E140013
On September 21, 2017, AHCA issued a letter to Delray granting their extension request submitted September 15, 2017. The letter stated that the request extended the termination date to December 1, 2017, unless another extension request was submitted to the Agency by November 16, 2017.
On November 17, 2017, AHCA was hand-delivered a letter, dated November 16, 2017, requesting another extension for CON Nos. 10176 and 10231, and Exemption No. E140013. The letter stated that “this request is timely and in accordance with Subsection 408.040(2)(c), Fla. Stat. and Section 59C-1.018(3), F.A.C.” The letter bears a stamp marked “Hand Delivery, Received November 17, 2017 CON.”
AHCA’s Building 1 Visitor’s Log, containing dates ranging from November 15, 2017 through November 27, 2017, shows the authorized representative for Delray, Tracy Merritt, as signing into the building on November 15, 2017, and on November 17, 2017.
On November 17, 2017, AHCA responded to the request for extension by certified mail, denying the request for failure to timely file in accordance with section 408.040(2)(c), and
rule 59C-1.1018(3) (2016).
In a sworn affidavit, Marisol Finch, the supervisor of the CON and Commercial Managed Care Units for AHCA, testified as to the circumstances of her receipt of Delray’s request for extension. Ms. Fitch asserted that the request was denied based on her knowledge of the previous request for extension and her understanding that the new CON termination date was December 1, 2017, and the deadline for requesting another extension was November 16, 2017.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
AHCA is authorized to evaluate and make final determinations on CON extension requests, pursuant to section 408.040(2)(c).
Delray, as the party asserting the affirmative of an issue, bears the burden of proof in demonstrating its entitlement to relief by a preponderance of evidence. Young v.
Dep’t of Cmty. Affairs, 625 So. 2d 831, 833 (Fla. 1993); see
also Beshore v. Dep’t of Fin. Servs., 928 So. 2d 411 (Fla. 1st
DCA 2006); Fla. Dep’t of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep’t of HRS, 348 So. 2d 349
(Fla. 1st DCA 1977); § 120.57(1)(j), Fla. Stat.
Section 408.040 provides in relevant part:
(2)(a) Unless the applicant has commenced construction, if the project provides for construction, unless the applicant has incurred an enforceable capital expenditure commitment for a project, if the project does not provide for construction, or unless subject to paragraph (b), a certificate of need shall terminate 18 months after the date of issuance, except a certificate of need of an entity which was issued on or before April 1, 2009, shall terminate
36 months after the date of issuance. The agency shall monitor the progress of the holder of the certificate of need in meeting the timetable for project development specified in the application, and may revoke the certificate of need, if the holder of the certificate is not meeting such timetable and is not making a good-faith effort, as defined by rule, to meet it.
A certificate of need issued to an applicant holding a provisional certificate of authority under chapter 651 shall terminate 1 year after the applicant receives a valid certificate of authority from the Office of Insurance Regulation of the Financial Services Commission.
The certificate-of-need validity period for a project shall be extended by the agency, to the extent that the applicant demonstrates to the satisfaction of the agency that good-faith commencement of the project is being delayed by litigation or by governmental action or inaction with respect
to regulations or permitting precluding commencement of the project.
§ 408.040(2)(a)-(c), Fla. Stat.
Rule 59C-1.018(3) provides in pertinent part:
(3) Extension of Validity Period.
(a) Extensions of up to 60 calendar days per each request may be requested by a Certificate of Need holder who is approaching the end of the 18-month validity period. The holder must submit a written request to the Agency for approval at least
15 calendar days before the Certificate of Need terminates. The filing of a request does not extend the validity period of a Certificate of Need. Failure to timely file is a waiver of the right to request an extension. This request for an extension must demonstrate that good faith commencement of the project is being delayed by litigation or by governmental action or inaction with respect to regulations or permitting which precludes commencement on the project. The request must provide the Agency a detailed explanation of the problem and a plan of action to be undertaken by the holder to resolve the problem within the time frame requested.
Rule 59C-1.018(3) states that the filing of a request for extension does not extend the validity period of a CON. The rule further states that failure to timely file constitutes a waiver of the right to request an extension.
Computation of Time
Delray argues that its extension request was timely filed, on the basis of its construction of the meaning of “before” in rule 59C-1.018(3). Delray asserts that the
termination date, December 1, 2017, must be included in the calculation of the “fifteen days before” stated in rule 59C- 1.018(3)(a). Under this construction, the computation of “fifteen days before” would set the deadline at November 17, 2017.
In response to Delray’s argument, AHCA relies on the case of Jacksonville Land Holding Co. v. American Oil Co.,
136 Fla. 491 (1938). The Florida Supreme Court in Jacksonville
stated that, as a general rule where “such matter of practice or procedure is required a given period before a specified date or day, the day specified should be excluded and the first day of the period be included, unless the manifest intention was to include the last day, or to exclude both days.” Id. at 498.
Citing Jacksonville, the court in the case of R.T.G. Furniture Corporation d/b/a Rooms to Go v. Franklin Coates & Lorie A.
Coates, 93 So. 3d 1151 (Fla. 4th DCA 2012) further explained:
Logically, in a case where the relevant period of time is defined as a certain number of days before or prior to a specified event, the period of time must be counted backwards from the day of the event (excluding the event itself). This method of counting the days is consistent with a natural reading of the phrase “no later than (X number of days) before” a specified date.
Id. at 1154.
Consistent with the computational method set forth in
R.T.G. and Jacksonville, the calculation of “fifteen days before”
the December 1, 2017, termination date would establish the deadline at November 16, 2017.
“If an agency's interpretation is one of several permissible interpretations, it must be upheld despite the existence of reasonable alternatives.” Pershing Indust., Inc. v.
Dep't of Banking & Fin., 591 So. 2d 991, 993 (Fla. 1st DCA 1991).
“The courts will not depart from such a construction unless it is clearly unauthorized or erroneous.” PW Ventures, Inc. v.
Nichols, 533 So. 2d 281, 283 (Fla. 1988). This is true even when the agency's interpretation is “somehow problematic.” Morris v.
Div. of Retirement, 696 So. 2d 380, 383 (Fla. 1st DCA 1997). In
fact, “the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations." Dep't of Prof'l Reg., Bd. of Med. Exam’r v. Durrani, 455 So. 2d
515, 517 (Fla. 1st DCA 1984)(superseded on other grounds by statute)(italics in original).
Limits on Agency Authority.
Administrative agencies have only such powers as the Legislature confers, either expressly or by necessary implication, and cannot expand upon their own jurisdiction. Fla. Virtual Sch. v. K12, Inc., 148 So. 3d 97, 99 (Fla. 2014); WHS Trucking LLC v. Reemp’t Assistance Appeals Comm'n, 183 So.
3d 460, 462 (Fla. 1st DCA 2016); Dep't of Rev. v. Vanamburg,
174 So. 3d 640, 642 (Fla. 1st DCA 2015).
An agency may not enlarge, modify, or contravene the provisions of statute through its actions or its rules; such action or rule “constitutes an invalid exercise of delegated legislative authority.” § 120.52(8)(b)-(c), Fla. Stat.; McKenzie Check Advance of Fla. v. Betts, 928 So. 2d 1204 (Fla.
2006); Campus Comm’ns, Inc. v. Dep’t of Rev., 473 So. 2d 1290,
1291 (Fla. 1985).
The First District Court of Appeal has ruled that AHCA may not extend a CON without color of statutory authority. Baker Cnty. Med. Svcs., Inc. v. Ag. for Health Care Admin., 178 So. 3d
71, 77 (Fla. 1st DCA 2015).
Petitioner’s CONs and Exemption terminated on December 1, 2017, by operation of law. While section 408.040 authorizes AHCA to extend the validity period of CONs that are nearing termination, it does not authorize AHCA to resurrect and extend the validity period of a CON that has already terminated.
