The Issue The issue is whether Respondent violated Sections 455.227(1)(q), 455.227(1)(f), and 464.018(a)(b), Florida Statutes, and Rule 64B9-8.005(1)(b), Florida Administrative Code, by a denial of an application in another state.
Findings Of Fact At all material times, Respondent has been licensed as a registered nurse in Florida, holding license number RN 1446212. She has been so licensed for 14 years. Her home address is in Plattsburg, New York. For most of her career, Respondent has worked as a traveling nurse and is licensed in at least six states. In this capacity, Respondent has been employed by an agency and assigned to various temporary assignments around the country. At one point, Respondent worked as a traveling nurse in Virginia. Using a temporary nursing license, Respondent worked for one week at a Virginia hospital. She had intended to work the typical 6-13 weeks. However, she returned home prematurely following an incident at the hospital to which she had been assigned. There had been a problem with diverted controlled substances at this hospital prior to Respondent’s arrival. After a few days on the job, someone accused Respondent of diverting controlled substances, and the hospital administration suspended Respondent without pay. Under her agency arrangement, Respondent did not have to pay her lodging expenses. However, as a result of the suspension, she was left with this expense and no income to pay it, so she readily returned home and, at some point, accepted another assignment. She never learned of any adverse action taken against her in Virginia for the alleged incident at the hospital. Unknown to Respondent, her application for a temporary license in Virginia automatically constituted an application for a permanent license. Although Respondent received no prior notice of the Virginia nursing board’s action, the board eventually denied her licensure on the basis of the alleged incident at the hospital. Petitioner presented this case on the basis of the license denial of the Virginia board of nursing. The evidence in this record does not establish that Respondent committed the acts of which she was accused at the Virginia hospital. Moreover, the evidence in this record establishes that Respondent did not receive notice and an opportunity to be heard on the Virginia charges prior to or following the Virginia license denial.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order dismissing the administrative complaint. DONE AND ENTERED this 26th day of January, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1998. COPIES FURNISHED: Thomas E. Wright Office of the General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 T. A. Delegal, III Delegal & Merrett, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
The Issue Whether Petitioner's application for licensure as a practical nurse (PN) should be approved or denied.
Findings Of Fact At issue in this proceeding is the application for licensure by examination as a PN signed by Petitioner on August 6, 2012, and mailed to the Board for filing. This application will be referred to as the "August 2012 PN application." The purpose of an application for PN licensure by examination is to demonstrate that the applicant has the educational and background qualifications to be eligible to take the PN licensure examination. The Board uses the National Council Licensure Examination, commonly referred to as "NCLEX." The NCLEX is owned by the National Council of State Boards of Nursing, to which all state nursing boards, including Florida's, belong as members. There is an NCLEX for PN licensure (NCLEX-PN) and a separate NCLEX for RN licensure (NCLEX-RN). The August 2012 PN application stated that Petitioner obtained her nursing education from Lincoln Technical Institute in Fern Park, Florida, where Petitioner completed an LPN program from which she graduated on September 24, 2011. In the "examination history" section of the August 2012 PN application, Petitioner stated that she took the NCLEX-RN in Florida in November 2002 and passed. However, according to Mr. Spooner's credible testimony, Petitioner could not have taken and passed the NCLEX-RN in Florida in November 2002, as represented. The Board has no record of Petitioner ever having been approved to take the NCLEX-RN in Florida, much less having taken and received a passing score. As Mr. Spooner explained, in order for someone to take either the NCLEX-RN or the NCLEX-PN in Florida, that person must first submit an application to the Board for either RN or PN licensure by examination, and the application must be approved by the Board. If an application is approved, the Board then would send an "authorization to test" to the approved applicant. The Board would also transmit the applicant's name to the exam vendor, Pearson VUE, on a list identifying the applicant as eligible to take either the NCLEX-RN or the NCLEX-PN. Following the examination, the results would be transmitted by the exam vendor directly to the Board. In a section of the August 2012 PN application called "applicant background," Petitioner was asked a series of "yes-no" questions, asking whether she had "ever applied for" any of the following: RN licensure by examination in Florida; PN licensure by examination in Florida; RN licensure by endorsement in Florida; or PN licensure by endorsement in Florida. Petitioner did not answer either yes or no to any of these questions about prior applications in Florida. The "applicant background" section also asked Petitioner whether she has ever been licensed in Florida as an RN or a PN. Petitioner indicated that she had been licensed in Florida as an RN. Petitioner was required to list all nursing licenses she has held; and for any licenses that were no longer active, Petitioner was instructed to "state why and when" the license became no longer active. Petitioner listed her Florida RN license and offered the following as to why and when that license became no longer active: "lack of accreditation of the school (07-2007)." Evidence at hearing established that in the August 2012 PN application, Petitioner should have disclosed the following prior nursing applications filed in Florida: in May 2006, Petitioner applied for RN licensure by endorsement (May 2006 RN application); in October 2008, Petitioner applied for RN licensure by examination (October 2008 RN application); in January 2009, Petitioner applied for RN licensure by examination (January 2009 RN application); and in October 2011, Petitioner applied for PN licensure by examination (October 2011 PN application). The May 2006 RN application resulted in the issuance of an RN license to Petitioner. This was the RN license that Petitioner listed on the August 2012 PN application. However, the RN license was not rendered inactive for the reason stated by Petitioner ("lack of accreditation of the school"). Instead, the May 2006 RN application contained false information, misrepresenting that Petitioner graduated in 2002 from an ADN (associate degree in nursing) program at Laramie County Community College in Wyoming; that Petitioner had taken and passed the RN licensure exam in Wyoming in November 2002; and that in December 2002, the Wyoming Board of Nursing issued an RN license to Petitioner. Submitted with the May 2006 RN application was a falsified license verification form completed by someone identified as the director of Wyoming's Board of Nursing, verifying that Petitioner held an active RN license in Wyoming and providing the license number ostensibly corresponding to Petitioner's Wyoming RN license. The May 2006 RN application contained accurate personal information about Petitioner, including her social security number, date of birth, and her mother's maiden name. Some of the personal information was wrong, such as Petitioner's birth place. Petitioner's Orlando, Florida, home address was a bit garbled-- the street number and name were correct, but "Parkway" was left off of the street name and was, instead, put into the space for the city (so that the city was identified as Parkway instead of Orlando). However, the zip code was correct, so despite the garbled address in the application form, the Board got the address straightened out and was able to correspond with Petitioner about the application during its processing. Petitioner described the background leading up to the May 2006 RN application. Petitioner was born in Haiti. She said that she was a nurse in Haiti before moving to Florida. Petitioner offered no details regarding any formal education received or regulatory approvals to practice nursing held in Haiti. There was no evidence establishing when Petitioner moved to Florida, except that it was sometime before 2002. Once in Florida, she sought to take the steps needed to be allowed to practice nursing in Florida. Petitioner testified that based on her "accreditation" from her country, she was allowed to take an "online program" of some kind offered by the International School of Nursing, which she described as based in Wyoming, with "school" branches in Hallandale, Florida, and Nigeria. According to Petitioner, she successfully completed the online program in 2002; she understood that the purpose of the program was to allow her to "sit for the exam here in Florida." Petitioner testified that her online school took "them" (presumably Petitioner and other students) to Miami, Florida, to "the exam" in 2002. When asked what exam she took, Petitioner testified as follows: "When I go in the computer it says NCLEX, NCLEX exam."1/ Petitioner said that someone at the online school called her to tell her that she passed the exam, but she never saw the results. Petitioner said that she was told by the online school that she could not get a nursing license until she paid the school the rest of the money she owed for the online program. Petitioner testified that she paid off the debt between 2002 and 2006, at which point the school prepared the May 2006 RN application and filed it for Petitioner. Petitioner's testimony was not forthright about the May 2006 RN application. Petitioner claimed that she had no knowledge whatsoever about the contents of the May 2006 RN application, because the application was handled entirely by the online school. At first, Petitioner claimed that all she knew was that the school submitted the application for her, and the next thing she knew, she received her license. She claimed that she did not question the license when it appeared, because she thought she qualified for the license. However, Petitioner ultimately admitted that she was involved in the application process, because the Board corresponded with her at her home address and Petitioner responded to the Board's requests. The Board wrote to Petitioner to confirm receipt of her RN "endorsement application," but noted that she had omitted the filing fee; the filing fee was then paid by Petitioner. The Board then wrote to Petitioner to confirm receipt of the filing fee payment, but noted that Petitioner needed to get fingerprinted and have the fingerprint cards submitted for a background check; Petitioner followed those instructions. Petitioner admitted that she did not go to nursing school at a community college in Wyoming, did not take the NCLEX-RN in Wyoming, and never held an RN license in Wyoming. Petitioner denied signing the May 2006 RN application and noted that the signature is not even her name. Indeed, with the benefit of that testimony, if one stares at the signature long enough, the cursive scrawl takes on the appearance of the name of the street where Petitioner lives. However, the scrawled signature is far from legible; the letters are not distinct. At a quick glance, one could just as reasonably discern something approximating Petitioner's first initial and last name, instead of the name of Petitioner's street; those two alternatives are about the same length and end in the same letters ("on"). For someone expecting to see Petitioner's name and not studying the signature with the benefit of Petitioner's testimony, it is not so obvious that the signature is not Petitioner's name. Petitioner did not directly accuse someone from the online school of taking it upon himself or herself to submit for Petitioner a fraudulent application for RN licensure by endorsement without Petitioner's knowledge or permission, but that was the implication of Petitioner's testimony claiming that she had no idea what was in the May 2006 RN application. Petitioner's testimony is difficult to credit, especially since Petitioner did not identify who would have done such a thing or what that person's motive could possibly have been. Moreover, Petitioner's claimed ignorance of the application is not borne out by the evidence. At the very least, Petitioner knew that an application for RN licensure by endorsement was filed in her name, because she received the Board's letters acknowledging receipt of her "endorsement application," and she actively participated in the processing of that application by responding to the Board's requests. An application for licensure by endorsement means that the applicant has an active license in another state, which was obtained after the applicant took and passed that state's licensure examination, either the NCLEX or the State Board test pool. Thus, Petitioner knew, or certainly should have known, that she was not eligible for RN licensure by endorsement because she did not hold an RN license in another state. See § 464.009, Fla. Stat. (2006)(addressing the requirements for RN or PN licensure by endorsement). As Petitioner acknowledged, applicants for nursing licenses in Florida are required to know the licensure laws and rules. Despite not qualifying under Florida law for RN licensure by endorsement, Petitioner accepted the RN license issued by the Board on the basis of the falsified May 2006 RN application and practiced as an RN for several months. In early 2007, the Board received a "fraud list" from the National Council of State Boards of Nursing, identifying names of possible fraudulent applicants. As a result, the Board investigated Petitioner's May 2006 RN application. Using the Wyoming online licensure-look-up tool, the Board searched for Petitioner and found no nursing license history, a fact later confirmed to the Board in an affidavit from a Wyoming Board of Nursing representative. Using the same tool, the Board searched the records by the license number identified in the license verification form filed with Petitioner's May 2006 RN application. The results of that search showed that the license number did not correspond to an active RN license issued to Petitioner following successful examination in Wyoming. Instead, the license number corresponded to an RN license by endorsement that had been issued to a different person, not Petitioner, but that had expired in 2004. The Board's investigation also confirmed that the person identified as the director of Wyoming's Board of Nursing, who completed Petitioner's license verification form, was not the Wyoming Board of Nursing's director. On June 22, 2007, the Department of Health (Department) issued an emergency suspension order (ESO), suspending Petitioner's RN license. The ESO contained a detailed recitation of the facts regarding the May 2006 RN application, including the fact that it was an application for RN licensure by endorsement, which required verification that Petitioner held an active RN license in another state and that to address this requirement, a license verification form attested to Petitioner's RN license in Wyoming. The ESO set forth the results of the Board's investigation, by which it determined that the May 2006 RN application contained material misrepresentations and was supported by a falsified license verification form. The ESO concluded that because Petitioner's RN license was procured by knowing misrepresentations, when the actual facts showed that Petitioner was not qualified for the license issued to her, it was necessary to immediately suspend Petitioner's license. Petitioner did not contest the ESO. Petitioner testified that she did not fight the ESO, because she had no money to hire a lawyer. However, Petitioner also admitted that she did not have grounds to fight it, because she did not, in fact, qualify for RN licensure by endorsement. The Department issued an administrative complaint against Petitioner's RN license based on the same allegations as in the ESO. In lieu of further proceedings on the administrative complaint, Petitioner agreed to voluntarily relinquish her RN license, which the Board accepted by Final Order rendered December 24, 2007. As with the ESO, Petitioner attempted to explain her choice not to contest this action as a financial decision. However, Petitioner ultimately conceded that she could not have successfully fought to retain her RN license that she received by endorsement, because she was not qualified for licensure by endorsement. Petitioner claimed to not understand until sometime recently, when the Board sent her a copy of the May 2006 RN application, that fraudulent information and documentation were submitted to enable her to obtain an RN license. Petitioner claimed to have been "shocked" when she saw the application. Petitioner's testimony in this regard was not credible. Petitioner may have failed to previously obtain a copy of the application that she knew was submitted in her name. However, at least by mid-2007, Petitioner was informed, with great specificity set forth in the ESO and administrative complaint, of each aspect of false information and falsified documentation that the Board found in connection with her May 2006 RN application. Petitioner knew, from the ESO and administrative complaint, that her application for RN licensure by endorsement could only be approved if there was evidence that she had an active RN license in another state. Petitioner knew, from the ESO and administrative complaint, that her application was submitted with a falsified license verification form attesting to the RN license she supposedly held in Wyoming, when Petitioner knew she never had any such license. Although Petitioner denied completing and signing the May 2006 RN application, she admitted that she completed, signed, and filed the other applications enumerated in Finding of Fact 9, above. The October 2008 RN application was an application for licensure by examination by which Petitioner sought permission to take the NCLEX-RN. To demonstrate that she qualified for the educational requirements for RN licensure by examination, Petitioner reported that she had graduated in 2002 from an ADN program at the International Nursing School in Hallandale, Florida. This was the online school previously described as the International School of Nursing. The October 2008 RN application stated that Petitioner took the RN licensure exam in Florida in November 2002 and passed. As previously noted, Mr. Spooner credibly testified that Petitioner could not have taken the NCLEX-RN in Florida without first applying for RN licensure by examination, obtaining Board approval, and receiving an authorization to test from the Board, which she did not do before November 2002 (or at any other time). On October 31, 2008, the Board notified Petitioner that it was unable to approve her application for examination, because the school attended by Petitioner for the ADN program did not offer a Board-approved program of nursing education. Petitioner's January 2009 RN application was another attempt to obtain Board approval to sit for the NCLEX-RN. This application identified a different nursing school attended for Petitioner's nursing education. According to the application, Petitioner completed the ADN program at Valencia Community College, in Orlando, Florida, graduating on July 1, 2008. However, contrary to the application's representation, Petitioner did not "graduate" from an ADN program; instead, Petitioner took an online continuing education course called "RN Refresher 1" and received a certificate of participation on July 1, 2008. The January 2009 RN application also represented that Petitioner had taken and passed the RN licensure exam in Florida in May 2008. At hearing, Petitioner did not attempt to explain this reference, nor was there any other evidence to suggest that Petitioner took and passed the NCLEX-RN in Florida in May 2008 (or at any other time). Once again, the Board notified Petitioner that her January 2009 RN application could not be approved, because Petitioner failed to demonstrate that she met the educational qualifications necessary for RN licensure by examination. The Board noted that Petitioner's continuing education participation certificate was not adequate to meet the educational requirements for RN licensure. At hearing, Petitioner attempted to cast blame on staff persons at the Board who fielded her telephone calls asking how she could get relicensed following her relinquishment of the RN license. Petitioner testified that unnamed persons told her either that she needed to go back to school; or that she needed to go to an accredited school; or that all she needed to do was to take a refresher course. Petitioner's unsubstantiated testimony did not help establish that Petitioner's August 2012 PN application should be approved. In any event, the suggestion that Petitioner was told a refresher course was sufficient to meet educational requirements for RN licensure is rejected as lacking credibility. Petitioner may have been told that she had to graduate from a Board-approved ADN program to apply for RN licensure, which would explain why Petitioner represented in her January 2009 RN application that she graduated from an ADN program. However, as Petitioner admitted, she was never told that she should misrepresent the facts on her applications. After Petitioner's unsuccessful attempts to apply for RN licensure, Petitioner changed course and enrolled in a Board-approved PN program at Lincoln Technical Institute in Fern Park, Florida. She completed the program in September 2011, and then submitted the October 2011 PN application, seeking Board approval to sit for the NCLEX-PN. In the October 2011 PN application, Petitioner answered "no" to the question asking whether she had ever applied for RN licensure by examination in Florida (despite two prior applications), but Petitioner answered "yes" to the question asking whether she ever applied for RN licensure by endorsement in Florida, acknowledging the May 2006 RN application. Petitioner identified the RN license she received in 2007, but in response to the query, "[i]f no longer licensed, state why and when," she falsely stated that the "license expired." In the examination history section of the October 2011 PN application, Petitioner stated that she took and passed the NCLEX-RN exam in Wyoming, in February of either 2002 or 2006 (both years are written on top of each other; it appears that 2006 was written first, and then was changed to 2002, although it could be the other way around). The October 2011 PN application was considered by the Board at a public meeting in February 2012. Petitioner appeared and testified, although she said that she was not given enough time to explain about the May 2006 RN application and the relinquishment of her RN license. The Board issued a notice of intent to deny the October 2011 PN application based on misrepresentations in the application.2/ The Board referred to the fraudulent May 2006 RN application and relinquishment of Petitioner's RN license (contrary to the application's representation that Petitioner's RN license had expired). The Board also referred to the application's statement that Petitioner took and passed the NCLEX-RN in Wyoming in 2002, which was contrasted with Petitioner's testimony before the Board, when she "testified both that she did and did not take the NCLEX-RN in Wyoming." Petitioner did not request a DOAH administrative hearing to dispute the facts in the Board's notice of intent to deny the October 2011 PN application. Instead, Petitioner took the option offered in the Board's notice for an informal hearing before the Board "[i]f you do not dispute any material fact[.]" That hearing was held at a public meeting of the Board on June 7, 2012, but Petitioner did not appear. By Final Order rendered June 20, 2012, the Board denied the October 2011 PN application. The Final Order summarized the reasons previously recited in the notice of intent to deny, including the fact that the May 2006 RN application was fraudulent and resulted in the relinquishment of Petitioner's RN license, and including Petitioner's testimony before the Board in February 2012 that she did not sit for the NCLEX-RN in Wyoming as represented in the October 2011 PN application. The Final Order concluded that Petitioner "is in violation of Section 456.072(1)(f) and (h) and 464.018(1)(a) by attempting to obtain or obtaining a nursing license by bribery, misrepresentation or deceit." As authorized by sections 464.018(2) and 456.072(2), Florida Statutes (2011), the Board denied Petitioner's application. The August 2012 PN application repeated the same essential problems as the October 2011 PN application, which was denied by Final Order. Petitioner again misrepresented the reason why her Florida RN license was no longer active, although this time, instead of saying that the RN license had expired, Petitioner changed her response to "lack of accreditation of the school." Petitioner again misrepresented her NCLEX examination history, although this time, instead of saying that she took and passed the RN licensure examination in Wyoming in February 2002 or 2006, Petitioner said that she took and passed the RN licensure examination in Florida in November 2002. Petitioner was given the chance to explain the inconsistencies apparent from a side-by-side review of the applications she acknowledged having prepared and filed. Petitioner offered no explanation. The implication of the unexplained inconsistencies is that Petitioner intentionally gave false answers out of fear that the Board would deny her applications if the true answers were given and that Petitioner kept changing her false answers out of hope that a different (false) answer would lead the Board to approve the application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Rose Fenelon's, application for practical nurse licensure by examination. DONE AND ENTERED this 25th day of March, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2013.
The Issue The issue is to determine the amount of the fee to be awarded to Florida Medical Center. FEE CALCULATION Florida Medical Center was represented before the Department in its attempt to obtain a hearing and before the District Court of Appeal, First District in Florida Medical Center vs. Department of Health and Rehabilitative Services and Humana, Inc., appellate case no. BD-46, by Eric B. Tilton, who has been a member of The Florida Bar since 1977. He also handled the appeal of the denial of Florida Medical Center's petition for a hearing on the approval of additional beds for University, appellate case BD-45. An associate, Thomas W. Stahl, assisted Mr. Tilton in both those cases. Mr. Tilton filed, on behalf of Florida Medical Center, the following pleadings: a petition seeking a Section 120.57 hearing to challenge the certificate of need HRS agreed to grant to Humana Bennett. The petition was denied in a final order of the Department without referral to the Division of Administrative Hearings for the assignment of a hearing officer or other proceedings; a notice of appeal to the District Court of Appeal, First District; a consolidated initial brief for both cases BD-46 (challenging the Humana Bennett certificate of need) and BD-45 (challenging the University certificate ofneed); a consolidated reply brief in both cases. The following papers also were filed by Mr. Tilton in case 50-46: motion for expedited review; petition for stay; reply to response to petition for stay; request for oral argument; motion to consolidate; response to motion to transfer to Fourth District Court of Appeal; response to notion to supplement record; response to motion for judicial notice; motion to strike portion brief of HRS; motion to strike answer brief of Humana Bennett; motion to strike amended answer brief of University; response to motion to correct record; response to Humana's motion to consolidate; motion for attorney's fees; motion for rehearing; response to Humana Bennett's motion for rehearing. The record on appeal before the Court of Appeals in Case BD-46 was quite brief, consisting of a petition for a hearing, a final order denying a hearing and a notice of appeal, which total 16 pages. The criteria found in Chapter 4 of the Rules Regulating The Florida Bar, Rule 4-1.5(B)(1)-(8) and (C) govern the determination of a reasonable fee. These are the criteria which had been contained in the former Code of Professional Responsibility, and applied by the Supreme Court of Florida in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 and n.6 (Fla. 1985) when the Court adopted the lodestar approach for fee determinations developed by the federal courts. Time and Labor Required, Novelty and Difficulty of Questions and Skill Requisite to Perform Legal Service Properly. Rule 4-1.5(B)(1) Mr. Tilton and his associate, Mr. Stahl, devoted 219.15 and 142.3 hours to this litigation, respectively. These hours were included in billings sent to the client, which were paid as presented without protest. The first step in determining a reasonable fee is to find the number of hours reasonably expended on the litigation. Rowe, supra, 472 So.2d 1150. The United States Supreme Court held in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), when assessing attorney's fees in civil rights litigation under identical ethical principles that [t]he most useful starting point for deter- mining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of value of a lawyer's services. 461 U.S. at 433, 103 S.Ct. at 1939. The Department of Health and Rehabilitative Services has not argued that any of the hours claimed were not reasonably expended on the litigation, in the sense of being the product of inaccurate or questionably reconstructed time records. The records were contemporaneously kept. Neither is there evidence of over staffing e.g., that more than one attorney attended or participated in oral argument without proof that such multiple representation was necessary. The appeal was not simply one in which the appellant argued that, as a competitor, it was entitled to a hearing as a matter of law. After initially indicating an intention to deny additional beds to both applicants, a hearing had been conducted which resulted in a Hearing Officer's recommendation that both 1931 applications be denied and the Department had entered a final order to that effect. Florida Medical Center's attorneys canvassed the entire record of the administrative proceeding on the 1981 applications of Humana Bennett and University to see whether there was any basis in it for the Department's abrupt change of position. Granting Humana Bennett and University new beds to settle the appeals in the Fourth District Court of Appeal was a fundamental shift in Department policy. The time spent in reviewing that record while preparing Florida Medical Center's appellate filings was appropriate. The time devoted to research on Florida, federal and other states' law on the authority of an agency to abandon a position taken after the conclusion of formal proceedings in order to settle an appeal from the agency's final action, while also refusing to allow others to challenge the agency's new and directly contrary position, was reasonable. Of course, "[a] lawyer in private practice ethically is obligated to exclude [excessive, redundant, or otherwise unnecessary] hours from his fee submission . . . . Hours that are not properly billed to one's client also are not properly billed to one's adversary . . . Nestle v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1940, quoting, Copeland v. Marshall 205 U.S.App.D.C. 390, 401, 641 F.2d 880, 891 (1980) (en banc) (emphasis by the Court). There has been no suggestion that the bills submitted to Florida Medical Center were not the product of a proper exercise of billing judgment. Payment of the bills as presented also betokens the reasonableness of the hours claimed. Complaint or objection by the client to the hours billed would suggest that the hours expended may have been excessive. The evidence that Mr. Tilton expended 219.15 hours and Mr. Stahl 142.3 hours on the case is accepted. The Fee Customarily Charged iii the Locality for Similar Legal Services. Rule 4-1.5(B)(3). Much of the case law concerning a reasonable hourly rate has grown up in civil rights litigation where determining a reasonable hourly rate requires after-the-fact construction. When the services were rendered in those cases, the lawyer was not working for the client at an agreed hourly rate. A survey of hourly rates paid by clients seeking legal services on an hourly basis becomes a proxy for reasonable hourly compensation for the fee claimant's lawyer. Blum v. Stenson, 465 U.S. 886, 895 & n.11, 104 S.Ct. 1541, 1547 & n.11, 79 L.Ed.2d 891 (1984). Here, in an arms-length transaction, Florida Medical Center paid Mr. Tilton $150 per hour and Mr. Stahl $100 per hour. The $100 hourly rate for Mr. Stahl may be at the upper end of the market for attorneys admitted to the bar in 1982, but he had experience in health care law as a law clerk before admission to the bar which should be considered. These hourly rates are paid by other clients to these lawyers. Free market transactions are powerful evidence of what a reasonable hourly rate is. For lawyers of the experience of Mr. Tilton and Mr. Stahl, the rates claimed are reasonable. No persuasive evidence has been presented that these rates are exorbitant, or are out of line with a prevailing market rate for other private counsel of comparable experience, skill and reputation. Based on these calculations the lodestar amount is: HOURS HOURLY RATE Tilton 219.15 x $150.00 = $32,872.50 Stahl 142.3 x $100.00 = $14,230.00 $47,102.50 TOTAL FEE Results Obtained. Rule 4-1.5(B)(4). The Department of Health and Rehabilitative Services objects to paying for all hours billed. A major issue raised by Florida Medical Center in its appellate brief was that after having entered a final order denying Humana Bennett's 1981 application for additional beds (the subject of the appeal in the Fourth District Court of Appeal), the Department could not recede from or modify that order as part of a settlement. This argument was rejected by the First District Court of Appeal, and the Department believes the lodestar amount should be reduced to recognize Florida Medical Center's limited appellate success. The short answer to this objection is that the District Court of Appeal certainly knew this, but did not specifically condition the attorney's fee award on some segregation of the amount of work devoted to different issues on the appeal. The Court did condition its order granting attorney's fees upon proof that Florida Medical Center had not waived its point of entry; it also could have limited the fee award to the standing issue on which Florida Medical Center prevailed, but it did not. Florida Medical Center met the only condition the Court imposed and is entitled to fees for all services rendered by its attorneys. If the issue whether fees should be reduced for incomplete appellate success is open, it would be inappropriate to reduce the number of compensable hours here. The erroneous decision of the Department denying a hearing caused Florida Medical Center to incur appellate fees. The issue of the authority of an agency to recede from a final order in a settlement was one of first impression in Florida law. Although unsuccessful, the argument advanced in the appellate court was reasonable. To be made whole, Florida Medical Center should be reimbursed for hours attributable to that issue. If a party brings unrelated claims which carry attorney's fees to federal court and fails to prevail on all claims, fees are not granted for the unsuccessful claims. The focus, however, is on whether the partially successful party pursued "distinctly different claims for relief that are based on different facts and legal theories". Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. 1940. Here, the relief sought was reversal of the order denying Florida Medical Center the right to participate in the Department's decision to grant additional beds to Humana Bennett. That same relief was available on either theory proposed by Florida Medical Center: that its status as a competitor of Humana Bennett conferred standing as a matter of law under Section 381.494(6)(c), Florida Statutes, or that HRS was not entitled to rescind through settlement a final order denying Humana Bennett additional beds after denial had been recommended by a Hearing Officer following a Chapter 120 formal proceeding in which the applicant, competitors and the Department had been heard, and HRS had adopted that order as its final agency action. Florida Medical Center did not advance distinctly different claims for relief based on different facts and legal theories; it presented a single claim for relief based on alternate theories. Cf., Taylor v. Sterrett, 640 F.2d 663, 669 (5th Cir. 1981) ("[T]he proper focus is whether the plaintiff has been successful on the central issue as exhibited by the fact that he has acquired the primary relief sought.") As the Supreme Court said in Hensley, "The result is what matters." id., 461 U.S. at 435, 1030 S.Ct. at 1940. As the result of its appeal Florida Medical Center has participated in a lengthy Section 120.57 formal proceeding on remand which has permitted it to oppose the addition of 53 beds to a competitor. The potential competitive impact on Florida Medical Center of the opening of those new beds is sufficiently serious to make the hours reasonably expended a satisfactory basis for the fee award. That the record on appeal was brief, and the consolidated initial and reply briefs succinct (totaling 23 pages) does not mean the hours expended on the appeal are not properly compensable. Other Factors None of the other factors in Rule 4-1.5(B) would vary the lodestar amount. "When . . . the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled." Pennsylvania v. Deleware Valley Citizens Council, U.S. , 106 S.Ct. 3088, 3398 (1986) quoting, Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984) (emphasis by the Court). The fee is not contingent, and no special time limitations were imposed by the client or the circumstances, Rule 4-1.5(B)(8), (5). The nature and length of the professional relationship with the client is not significant here since that factor is encompassed in the determination of the hourly rate to which Florida Medical Center and its attorneys agreed, as is the factor on experience, reputation and ability of the lawyer performing the services. Rule 4-1.5(B)(6), (7). Equal Access to Justice Act The argument of the Department of Health and Rehabilitative Services that the $15,000 cap on fees which may be awarded under the Equal Access to Justice Act, Section 57.111, Florida Statutes, should be applied to this case is rejected. The fees the District Court of Appeal ordered HRS to pay were not awarded pursuant to that Act. That cap is permissible because an award of fees is in derogation of the American rule that a party shall bear its own fees. See, e.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Having statutorily created the entitlement to fees, the legislature may also cap those fees. The record shows that Florida Medical Center's motion to the Court which prompted this fee award was one based on Section 120.57(1)(b)(9), Florida Statutes (1985), which authorizes the courts to award "reasonable attorney's fees and costs" without any cap. The purpose of the award is to make Florida Medical Center whole for the fees and costs incurred as the result of Departmental action which was a gross abuse of agency discretion." Section 120.57(1)(b)(9), Florida Statutes (1985). The fee will not go to Florida Medical Center's attorneys--they have already been paid. As the statute prescribes, the court has awarded the fee to "the prevailing party." It is no defense to an award under the statute that the hourly rate assessed is more than the agency pays to counsel it hires. The argument advanced by the expert witness for the Department that the focus should not be on the amount the private client was willing to pay, but on what the public will approve is not accepted. The statutory standard is that the fee shall be reasonable, and the provisions of the Rules Regulating The Florida Bar identify factors for applying the test of reasonableness. Public antipathy to awards made to private parties with public funds to redress grossly abusive agency conduct lacks legal significance. Costs Florida Medical Center is entitled to recover the $50.00 filing fee for Case No. BD-46, the cost of the record on appeal of $4.00, and $63.74 for printing of the reply brief. The total allowable costs are $117.74.
Recommendation Based on the foregoing, it is RECOMMENDED that fees in the amount of $47,102.50 be awarded with costs of $117.74. DONE AND ORDERED this 7th day of April 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 7th day of April 1987. COPIES FURNISHED: Eric B. Tilton, Esquire Post Office Drawer 550 Tallahassee, Florida 32302 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Raymond E. Rhodes, Clerk District Court of Appeal First District State of Florida Tallahassee, Florida 32399-1850
Findings Of Fact Based upon the record evidence, the following findings of fact are made: Okeechobee Health Care Facility (OHCF) is a licensed nursing home facility located in Okeechobee County, Florida. OHCF was formerly owned and operated by Okeechobee Health Care Facility, Ltd. (Okeechobee). Okeechobee was a limited partnership. Faye Williamson and her husband were its general partners. In March, 1988, Okeechobee was granted, pursuant to its request, a certificate of need (CON 5454) to add a 30-bed wing to OHCF at a cost of $810,000.00. On December 8, 1989, Okeechobee filed its final project cost report with Respondent. The report reflected that actual expenditures had exceeded the approved cost of the project by more than $650,000.00. By letter dated December 13, 1989, Respondent advised Okeechobee that it was necessary for Okeechobee "to request an expedited review for a cost overrun on this project." On February 22, 1990, Okeechobee filed a certificate of need application (CON application 6150) seeking such expedited review. The application was accompanied by a check in the amount of $750.00. Ms. Williamson, who submitted the application on behalf of Okeechobee, did so thinking that the application was complete. Following her submission of the application, she awaited Respondent's response. Based upon her prior experiences with Respondent in these matters, it was her understanding that if Respondent determined that the application was incomplete, it would so notify her. On or about March 2, 1990, Williamson, who was identified on the application as Okeechobee's authorized representative and contact person, was telephoned by an employee of Respondent's who advised her that she needed to remit an additional $1,990.04 on behalf of Okeechobee to cover the full application filing fee. Immediately following this telephone conversation, Williamson wrote out a check in the amount of $1,990.04 and mailed it to Respondent. On or about April 11, 1990, Williamson was informed that, notwithstanding what she had been telephonically advised the previous month, the $2,740.04 that already had been remitted did not constitute payment in full of the application filing fee and another $1,990.00 was still required. Upon being provided this information, Williamson sent a third check, in the amount of $1,990.00, to Respondent. In the aggregate, Respondent received $4,730.04 from Okeechobee in connection with the filing of CON application 6150. On or about April 23, 1990, Respondent, by certified mail, sent to Williamson at the address indicated on the application as her mailing address (Post Office Box 728, Okeechobee, Florida 34973), an "omissions" letter, which read in pertinent part as follows: Your application on behalf of Okeechobee Health Care Facility, Ltd. has been received for a certificate of need for a cost overrun on Certificate of Need Number 5454, to be located in Okeechobee, Florida. Certain specified elements are omitted from your proposal which are nee to implement formal review. Please respond to the items noted below. For an existing health care facility, HMO or hospice, audited financial statements of the applicant for the two previous years. (The applicant's most recent complete fiscal years of operation immediately preceding the 120 day period described above). Update for period ending December 31, 1989. 7B. Please furnish a certified copy of the resolution of the board of directors pursuant to 381.709(1)(c), Florida Statutes. Conditions predicated upon award. 2C1. Terms of Financing (Appendix 5(2C1)). Letter of commitment omitted. Section 381.709(3)(a), Florida Statutes, requires that you respond to the above omissions by May 14, 1990. Failure to provide responses by this date may result in your application being deemed incomplete and administratively withdrawn from further consideration. The United States Postal Service delivered this "omissions" letter on April 27, 1990. Kasee Wherrell was the person to whom delivery was made. At the time, Wherrell was an employee of Professional Accounting Systems of Okeechobee (PASO), which had contracted with Okeechobee to perform certain clerical and administrative services in connection with the operation of OHCF. Among Wherrell's duties as an employee of PASO was to go to the post office, pick up the regular mail in the OHCF post office box, bring it back to the OHCF business office and distribute it to the appropriate person(s). She was not authorized, however, to sign for and receive any certified mail. Wherrell never gave Williamson the "omissions letter she had retrieved from the post office. Consequently, neither Williamson nor any other Okeechobee representative responded to the letter within the time frame specified in the letter. Not having received such a response, Respondent sent Williamson the following letter, dated May 25, 1990: In accordance with the provisions of Section 381.707 and 381.709, Florida Statutes, you were given until May 14, 1990 to respond satisfactorily to the omissions noted in the correspondence from this office dated April 23, 1990 relative to your proposal for a cost overrun on Certificate of Need Number 5454. Because of your failure to provide a detailed listing of the needed capital expenditures, including sources of funds; and a certified copy of a resolution by the board of directors, your proposal has been withdrawn from further consideration, effective May 14, 1990. You have the right to request an administrative hearing on this decision under the provisions of Florida's Administrative Procedure Act, Chapter 120, Florida Statutes, and under Department Rule 10-5.010, Florida Administrative Code. A request for hearing, if any, must be actually received by this department within 21 days of the first day of publication of notice of the withdrawal in the Florida Administrative Weekly. A request for hearing must contain the information required in Rule 28-5.201, Florida Administrative Code, and must make reference to the "CON Action Number" referred to in this lit The original and one copy of each request for hearing may be filed with or mailed to the following location: Sam Power, Agency Clerk, Assistant General Counsel, Department of HRS, 1323 Winewood Blvd., Building 1, Suite 406, Tallahassee, Florida 32399-0700. Upon receiving this letter, Williamson contacted her attorney, who in turn telephoned Amy Jones, Respondent's Deputy Assistant Secretary for Regulation and Health Facilities, to explain the circumstances surrounding Okeechobee's failure to timely respond to the "omissions" letter. After Williamson's attorney made his presentation, Jones advised him that, if he desired to have Respondent formally consider the matter, he would have to submit a petition for an administrative hearing in accordance with the May 25, 1990, letter that had been sent to Williamson. Such a petition was filed with Respondent's Agency Clerk on June 21, 1990. Okeechobee no longer owns or operates OHCF. The current owner and operator of the facility is Lifestyles and Healthcare, Ltd., (Lifestyles) which acquired the facility from Okeechobee in the spring of 1990, following the submission of CON application 6150. Okeechobee was dissolved upon Lifestyles' acquisition of OHCF. On or about September 14, 1990, Lifestyles was issued a license by Respondent's Office of Licensure and Certification authorizing Lifestyles to operate OHCF. The effective date of the license, as indicated on its face, was June 19, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order (1) dismissing the instant petition on the ground that the issue raised therein has become moot as a result of Okeechobee's voluntary withdrawal of CON application 6150, and (2) declining to refund the certificate of need application filing fee paid by Okeechobee in connection with the submission of CON application 6150. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1990.
The Issue Whether disciplinary action should be taken against the respondent, Tana Lee Hand, for an attempt to procure a license to practice nursing in the State of Florida by giving a false answer on an application form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Administrative Complaint against tile respondent, Tana Lee Hand, be dismissed. DONE and ORDERED this 14th day of July, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jeffery B. Morris, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Robert J. Castellanos, Esquire 1528 Hendry Street Post Office Box 1999 Fort Myers, Florida 33902 Geraldine B. Johnson, R. N. Board of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
