The Issue Whether Petitioner is entitled to credit for his answers to questions 41 and 48 on the February 2000 Construction, Building Contractor (Contract Administration) examination.
Findings Of Fact Upon consideration of oral and documentary evidence received at the hearing, the following relevant findings of fact are made: The examination for licensure of a general contractor in the State of Florida is administered by the Department of Business and Professional Regulation, Division of Technology, Licensure and Testing. Chapter 455.217, Florida Statutes. A written examination is authorized by Rule 61G4-16.001, Florida Administrative Code. Respondent contracts with Professional Testing, Incorporated, 1200 East Hillcrest Street, Orlando, Florida, which develops tests for the Florida Construction Industry Licensing Board. This practice is approved by Section 455.217, Florida Statutes. Professional Testing, Incorporated, ensures that questions and answers are not ambiguous through a number of methodologies. Petitioner has been an "original" candidate for the construction, building contractor examination twice. The examination has three sections: business finance, project management, and contract administration. A candidate may retake any section three times before the entire examination has to be retaken. One of the questions Petitioner is challenging is the same question he had on the June 1999 examination, that is, the "S mortar" question. This question was repeated on the August 1999 and the February 2000 examination. The copies of the "S mortar" question and answers on the August 1999 and February 2000 examinations which were accepted into evidence were identical. Petitioner maintains that the August 1999 examination question and answers accepted into evidence is not the same as the one he had on his examination. Petitioner agrees that the answer he gave, 20.74, was an incorrect answer and that 46.67 (the "graded correct" answer) was correct. Petitioner maintains that the 20.74 answer he gave on the February 2000 examination was a result of having been advised that 46.67 was an incorrect answer on the August 1999 test. Petitioner examined his original answer sheet form both examinations (August 1999 and February 2000) at the hearing. Petitioner's original answer for the August 1999 examination showed his answer to be "B", an incorrect answer, not the "graded correct" answer "C" (which was 46.67). The second challenged question is question 48 which deals with a "critical activity list" also called a "critical activity interval" or "critical path." Petitioner's answer is 106 days; the "graded correct" answer is 86 days. Question 48 asked the test taker to identify "the latest day work must begin on the roofing activity." One-hundred and six is the number of days the roof must be completed by (not when work must begin). Since this roofing activity takes 21 days it must begin on the 86th day to be complete on the 106th day. The psychometrician expert witness testified that both questions (and answers) were within acceptable statistical ranges as valid. That opinion is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Bureau of Testing, enter a final order denying Petitioner's challenge to questions 41 and 48. DONE AND ORDERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jermado Emmanuel Turner 6511 John Aldan Way Orlando, Florida 32818 Cathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether proposed Rules 69O-175.003, 69O-170.005-007, 69O- 170.013, 69O-170.0135. 69O-170.014, 69O-170.0141, 69O-170.0142, and 69O-170.0155 are valid exercises of delegated rulemaking authority.
Findings Of Fact Section 20.05, Florida Statutes, addresses the structure and powers of the Department. Section 20.05 provides as follows, in pertinent part: 20.05 Heads of departments; powers and duties.-- (1) Each head of a department, except as otherwise provided by law, must: * * * (b) Have authority, . . ., to execute any of the powers, duties, and functions vested in the department or in any administrative unit thereof through administrative units . . . designated by the head of the department, . . . unless the head of the department is explicitly required by law to perform the same without delegation. * * * (e) Subject to the requirements of chapter 120, exercise existing authority to adopt rules pursuant and limited to the powers, duties, and functions transferred to the department. The Financial Services Commission (Commission) was created within the Department pursuant to Section 20.121, Florida Statutes. However, the Commission is not “subject to control, supervision or direction by the Department of Financial Services in any manner.” § 20.121(3), Fla. Stat. The Commission is composed of the Governor and Cabinet, who collectively serve as the agency head of the Commission. Action by the Commission can only be taken by majority vote “consisting of at least three affirmative votes.” Id. OIR is a structural unit of the Financial Services Commission. Section 20.121(3) states in relevant part, as follows: Structure.— The major structural unit of the commission is the office. Each office shall be headed by a director. The following offices are established: 1. The Office of Insurance Regulation, which shall be responsible for all activities concerning insurers and other risk-bearing entities . . . * * * * Organization.-- The commission shall establish by rule any additional organizational structure of the offices. It is the intent of the legislature to provide the commission with the flexibility to organize the offices in any manner they determine appropriate to promote both efficiency and accountability. Powers.— Commission members shall serve as the agency head for purposes of rulemaking . . . by the commission and all subunits of the commission. . . . (emphasis supplied) Clearly, under the Department’s, the Commission’s and the OIR’s organizational structures, only the Commission may promulgate rules for both itself and OIR. The Department does not have rulemaking authority over areas that have been given to the Commission. On the other hand, nothing in the statute prohibits OIR, as directed by the Commission, to perform steps, preliminary to proposing a rule, that often occur in the rule development process prior to the actual Notice of proposed rulemaking. See also § 120.54, Fla. Stat. To that end, the Commission, by non-rule policy, has delegated authority to OIR to engage in rulemaking activities on behalf of the Commission. However, this delegation is not limited to rule development activities that occur prior to the Notice of proposed Rules, but authorizes publication of the Notice prior to approval by the Commission of any proposed language or policy statement. As indicated, the Notices for the proposed Rules were published in the Florida Law Weekly in November 2004, with various changes made thereafter. The proposed Rules were published as OIR rules. Disturbingly and misleadingly, all the Notices for the proposed Rules state that the agency head approved the Rule that is the subject of the Notice on September 3, 2004 or November 2, 2004. However, none of the proposed Rules were approved by the Commission, the agency head, prior to their publication as a proposed rule in the Florida Administrative Weekly. The specific agency authority listed in the Notices for promulgating the proposed Rules was Section 624.308(1), Florida Statutes. Section 624.308(1) grants the Department of Financial Services (Department) and the Financial Services Commission (Commission) the general authority to adopt rules, pursuant to Sections 120.536(1) and 120.54 in order to implement laws that confer duties upon them. The statute does not confer the authority on the Office of Insurance Regulation (OIR) to adopt rules. See § 624.05, Fla. Stat. The statutes that confer a specific grant of rulemaking authority over the areas of the laws implemented in the proposed Rules are Sections 627.0651 and 627.331, Florida Statutes. These two statutes confer specific rulemaking authority over certain areas of insurance ratemaking only to the Commission; specific rulemaking authority is not granted to the Department or to OIR. Other than rulemaking authority, the various duties assigned in the laws implemented by proposed Rules are given to OIR.
The Issue Whether Petitioner's responses to Question 10 and to Question 19 on the October 1990, general contractor's examination were incorrectly scored.
Findings Of Fact Petitioner sat for the general contractors licensing examination administered by Respondent in October 1990. The overall examination consisted of three parts. Petitioner has passed Parts I and III of the examination, but he failed Part II of the examination. Petitioner received a score of 67 on Part II of the examination while a score of 69.01 is required to pass that part of the examination. Petitioner initially challenged nine questions on Part II of the examination. Prior to hearing, Petitioner abandoned his challenges to all questions except for questions 10, 19, and 20. Evidence as to all three questions was presented by the parties at the formal hearing. In his post- hearing submittal, Petitioner abandoned his challenge to question 20. Consequently, only the challenges to Questions 10 and 19 need to be resolved. Question 10 and Question 19 are each worth four points. If Petitioner is given additional credit worth 2.01 points, he will have passed Part II. The challenged questions are multiple choice questions with only one response being considered by Respondent to be the correct response. For each challenged question, Petitioner selected a response other than the response Respondent considered to be the correct response. For each of the challenged questions, Petitioner received a score of zero. Question 10 requires the candidate to make certain calculations to determine the cost of a change order for a construction project. Petitioner contends that the question is unfair because of the narrow band between the possible answers. Respondent established that the question contained all information necessary to make the required computations. While Petitioner is correct in that some other questions may be less difficult because of the greater margin of error in the calculations required by those less difficult questions, his answer to Question 10 is nevertheless incorrect. Petitioner is entitled to no credit for his incorrect answer to Question 10. Question 19 provides certain information in the stem of the question and pertains to the time constraints on the service of a notice to owner by a subcontractor under the Florida Mechanics Lien Law. From the information provided in the stem of the question, the candidate can determine the date the subcontractor first furnished materials or labor. The stem of the question also informs the candidate of the date on which final payment was made to the contractor in reliance on the final contractor's affidavit. The answer to the question contains four multiple choice dates from which the candidate is to choose his answer. Preceding the answers is the following: "According to the Florida Construction Law Manual, in order to meet the requirements of the Mechanics Lien Law, concerning proper filing of the Notice to Owner, the concrete subcontractor's Notice to Owner must be served to the owner no later than:". The pertinent portions of the Florida Construction Law Manual provide as follows: Notice to the owner must be served on the owner within the earliest of the following time periods: One, before or within 45 days of the first commencement to furnish labor and materials on the job site, or within 45 days of starting to make specialty manufactured materials. Two, before final payment is made in reliance on the final contractor's affidavit. 1/ Petitioner contends that Question 19 is ambiguous because the stem of the question does not identify whether the contract referred to in the stem of the question is between the contractor and the owner or between the contractor and the subcontractor. Petitioner is correct in his contention that the question refers to the date that a contract was signed without identifying whether the contract was that between the owner and the contractor or that between the contractor and the subcontractor. The absence of that information is not fatal because the question enables the candidate to determine the date the subcontractor started work and provides the date of final payment was made to the contractor, which is the information necessary to correctly answer the question. Petitioner also contends that Question 19 is ambiguous because the answer considered by Respondent to be the correct answer is not the last date upon which the notice to owner can be served upon the owner. The correct response to Question 19 from the dates provided as possible answers to the question according to Respondent is the day before final payment was made to the contractor in reliance on the affidavit. The day that the final payment was made was not one of the four possible answers. Petitioner argues in his post- hearing submittal (but not at the formal hearing) that the question is misleading because the notice to owner could have been served on the day of final payment if the notice was served prior to the final payment by the owner. While the date of the final payment may arguably be a better choice than the date preceding the date of final payment, the date of final payment is not one of the choices. Of the choices offered the date preceding the date of final payment is clearly the best possible response. Petitioner's response to Question 19 was based on the statutory provision permitting the subcontractor to perfect service within 45 days of the date the subcontractor first furnished labor or material. The question informed the candidate that final payment to the contractor was made in reliance on a final contractor's affidavit six days prior to the date selected by Petitioner. Petitioner's answer to Question 19 was clearly wrong because a notice to owner from a subcontractor must be served before final payment to the contractor. The question is not misleading or unfair. Petitioner is entitled to no credit for his incorrect response to question 19.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenges to questions 10 and 19 of the October 1990 general contractor's examination. RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1992.
The Issue The issue for disposition in this case is whether Respondents have implemented agency statements that meet the definition of a rule, but which have not been adopted pursuant to section 120.54.
Findings Of Fact Petitioner, Robert Wood, P.E., is a Florida-licensed professional engineer, holding license No. PE 31542. A large part of Petitioner?s work involves the design of aluminum-framed structures. Respondents, DBPR and FBPE, are charged with regulating the practice of professional engineering in the State of Florida, pursuant to chapters 455 and 471, Florida Statutes, and the rules promulgated thereunder, Florida Administrative Code Chapter 61G15. The FEMC is a public-private partnership established by the legislature to provide administrative, investigative, and prosecutorial services to the FBPE. By statute, the FEMC operates under a written contract (Contract) with the DBPR, which Contract is approved by the FBPE. Term of the Contract From the creation of FEMC in 1997 until 2000, the legislature provided that the required written contract was to be “renewed annually.” In 2000, the legislature amended section 471.38 to require that the written contract be an “annual contract.” In 2003, the legislature again amended section 471.38 to repeal the requirement that the contract be an annual contract. There is currently no specified term or time for renewal for the required written contract. The DBPR and the FEMC have elected to continue to enter written contracts with a term of one year. Determination of Legal Sufficiency Since its creation in 1997, section 471.038 has provided that “[t]he corporation may not exercise any authority specifically assigned to the board under chapter 455 or this chapter, including determining probable cause to pursue disciplinary action against a licensee, taking final action on license applications or in disciplinary cases, or adopting administrative rules under chapter 120.” The only change to that restriction was made in 2000, when the term “corporation” was changed to “management corporation.” In 2000, the legislature also enacted the Management Privatization Act, section 455.32, Florida Statutes. That Act was intended to establish a model for the creation of non-profit corporations with which the DBPR could contract for “administrative, examination, licensing, investigative and prosecutorial services to any board created within the department.” The similarities between section 471.38 and section 455.32 make it obvious that the latter was largely patterned after the former. Among the duties to be performed by a “corporation” under section 455.32(10) is to: . . . make a determination of legal sufficiency to begin the investigative process as provided in s. 455.225. However, the department or the board may not delegate to the corporation, by contract or otherwise, the authority for determining probable cause to pursue disciplinary action against a licensee, taking final action on license actions or on disciplinary cases, or adopting administrative rules under chapter 120. In previous years, at least through 2001, the written contract between the DBPR and the FEMC provided that “FEMC shall not exercise the police powers inherent in the Department and the FBPE including a determination of legal sufficiency or insufficiency of a disciplinary complaint.” At some time after the passage of the Management Privatization Act, the contractual “police powers” restriction was changed, and now reads, as reflected in the current Contract, as follows: Except when providing those prosecutorial and investigative services set forth in this Agreement, FEMC shall not exercise the police powers inherent in the Department and the FBPE under Chapters 455 or 471, Florida Statutes, including determining probable cause to pursue disciplinary action against a licensee, other than failure to comply with final orders of the Board as set forth in Rule 61015-18.005(2), Florida Administrative Code, taking final action on license applications or in disciplinary cases, or adopting administrative rules under Chapter 120, Florida Statutes. Prosecutorial servicing shall only be executed in the name of FBPE. That contractual restriction is consistent with the statutory limitation on the powers of the FEMC set forth in section 471.38. In its current form, the Contract establishes the services that are to be provided by FEMC to the DBPR and the FBPE. The list of prosecutorial services to be provided by FEMC include coordinating with investigators, reviewing and taking “appropriate action” on complaints, and preparing cases for presentation to the FBPE probable cause panel. The list of investigative services to be provided by FEMC include receiving complaints, interviewing complainants, witnesses, and subjects of complaints, issuing subpoenas, preparing investigative reports, and taking other actions leading to the prosecution of a case. The Contract does not specifically address the issue of determining legal sufficiency. The typical procedures of the FEMC in performing its investigatory functions are initiated when the FEMC receives a complaint by various means, including telephone, e-mail, or submission of a written complaint. Written complaints are normally directed to the FEMC chief prosecutor, who assigns them to an investigator for initial review. If the complaint is verbal, the investigator fielding the call will ask the complainant to file a written complaint. If a complaint is unaccompanied by information to substantiate the claims, the investigator typically requests supporting documentation, which may be a set of engineering plans, a report, or similar evidence of the facts underlying the complaint. In a procedure implemented by the FEMC in 2012, after receipt of the complaint and supporting documentation, the investigator forwards the complaint to an engineering expert retained by FEMC for a pre-review. The expert prepares a preliminary report which is then considered in the determination of legal sufficiency. Prior to implementation of the 2012 pre- review procedure, the determination of legal sufficiency was made without the benefit of a pre-review report in the manner otherwise described below. After receipt of the complaint, the supporting documentation, and, since 2012, the pre-review report, the investigator presents the complaint to the FEMC chief prosecutor. If the chief prosecutor determines that the complaint is not legally sufficient, the investigator is instructed to draft a memorandum for the chief prosecutor to review, which is in turn submitted to the FBPE Executive Director for signature. If the chief prosecutor determines that the complaint is legally sufficient, he or she verbally authorizes the investigator to place the engineer on notice of the investigation. At that point, the complaint is investigated using the investigative tools available to FEMC as set forth in the Contract. If sufficient evidence that a violation has occurred is found, the investigation culminates in a recommendation to the FBPE probable cause panel for a decision as to whether the panel believes there to be probable cause to proceed with disciplinary action. The decision to proceed with a disciplinary proceeding requiring a point of entry to challenge the action is entirely that of the FBPE probable cause panel. Probationary Project Review On November 4, 2009, FBPE entered a disciplinary final order regarding Petitioner that incorporated a stipulated settlement agreement, and imposed sanctions on Petitioner, including probation. By his entry of the settlement stipulation, Petitioner agreed to a “project review” at six and eighteen-month intervals. The project review consisted of the submission by Petitioner of a list of all completed projects. That list was provided to an engineering expert, who then selected two of the projects for a more comprehensive review. The steps to be performed by Petitioner and the FBPE are generally described in Project Review Process Guidelines that were provided to Petitioner by FBPE as an attachment to the notice of the two projects selected for comprehensive review. As a result of the project review, the two projects were determined to violate engineering standards, which resulted in the FEMC making a recommendation of probable cause to the FBPE probable cause panel. The probable cause panel found probable cause, leading to the issuance of an Administrative Complaint against Petitioner. Petitioner introduced evidence of one other case in which a project review was required as a condition of probation. In that case, an administrative law judge, after having determined that the professional engineer committed violations of section 471.033 and Florida Administrative Code Rule 61G15- 19.001, recommended imposition of “probation for two years with appropriate conditions for this case.” The Final Order, entered on March 12, 2008, imposed the recommended probation “with a plans review at 6 months and 18 months from the date of this Order.” The basis for the imposition of that sanction was not explained. There was no evidence introduced at the final hearing as to any other specific case in which a project review was required, other than the case involving Petitioner. The 2012 FEMC Annual Report, which is a business record of the FEMC, indicated that between July 1, 2011 and June 30, 2012, the FEMC was involved in the investigation and/or prosecution of 32 cases in which Administrative Complaints were filed against engineers. Disciplinary sanctions imposed against engineers during that one-year period included, among others, twenty-five reprimands, six license suspensions, eight probations, seven license restrictions, two voluntary license relinquishments, and four license revocations. Also included among the sanctions imposed during that period were three project reviews. The sanction of project review is one that is, statistically, used sparingly by the FBPE. There was no evidence introduced to establish the criteria, if any, for the imposition of a project review as a condition of probation, or to demonstrate that it was generally applied in any specific circumstances.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004).
The Issue Whether Florida Administrative Code Rule 59C-1.012(2)(a) is an invalid exercise of delegated legislative authority in violation of section 120.52(8) because the rule exceeds the Agency for Health Care Administration’s (“AHCA”) grant of rulemaking authority; Whether rule 59C-1.012(2)(a) is an invalid exercise of delegated legislative authority under section 120.52(8), because the rule enlarges, modifies, or contravenes the law purported to be implemented; and Whether section 408.0455, Florida Statutes, prevents a determination that rule 59C-1.012(2)(a) is invalid.
Findings Of Fact Respondent, AHCA, is the state agency responsible for administering the Certificate of Need ("CON") laws and rules as codified at sections 408.031 through 408.045, and chapter 59C-1. The CON program is the method AHCA uses to determine whether there is a community need for regulated health care facilities as a prerequisite for licensure and operation in Florida. Petitioner, Orlando Health, holds the license for Health Central Hospital, a not-for-profit, full-service, Class I general hospital located in Ocoee, Orange County, Florida. Intervenor, Florida Hospital, is a not-for-profit, full-service, Class I general hospital with seven campuses located throughout the greater Orlando area and various outpatient locations, including a free-standing emergency department and outpatient facility located in Winter Garden, Florida. Intervenor, CFHS, is a developmental stage entity affiliated with Hospital Corporation of America, North Florida Division. On or about September 7, 2016, Florida Hospital submitted CON Application No. 10450 to establish a new hospital in Orange County, Florida, State Health Services Planning District 7, Acute Care Subdistrict 7-2. On or about September 7, 2016, CFHS submitted CON Application No. 10451 to establish a new hospital in Orange County, Florida, State Health Services Planning District 7, Acute Care Subdistrict 7-2. On September 7, 2016, Orlando Health submitted CON Application No. 10454 to establish a new hospital in Orange County, Florida, State Health Services Planning District 7, Acute Care Subdistrict 7-2. Under section 408.039(1), all three CON applications, i.e., the Orlando Health, Florida Hospital, and CFHS CON applications, were comparatively reviewed by AHCA as a part of the August 2016 co-batching cycle. On December 2, 2016, AHCA issued its State Agency Action Report (“SAAR”) and Notice of Intent to simultaneously approve: 1) Florida Hospital’s CON Application No. 10450; 2) CFHS’ CON Application No. 10451; and 3) Orlando Health’s CON Application No. 10454. Challenged Rule Rule 59C-1.012, the challenged rule, states in paragraph (a) of subsection (2): If a valid request for administrative hearing is timely filed challenging the noticed intended award of any certificate of need application in the batch, that challenged granted applicant shall have ten days from the date the notice of litigation is published in the Florida Administrative Weekly to file a petition challenging any or all other cobatched applications. Rule 59C-1.012 is entitled "Administrative Hearing Procedures." It is one of two chapters of AHCA rules in Volume 59C of the Florida Administrative Code that appear under the caption, "CERTIFICATE OF NEED." The first chapter, 59C-1, which includes the challenged rule, is entitled: "Procedures for the Administration of Sections 408.031 -- 408.045, Florida Statutes, Health Facility and Services Development Act." The purpose of rule 59C-2.012(2)(a) is to provide the process for a party to exercise its right to a comparative review. Thus, it is commonly known as the “comparative review rule.” Rule 59C-1.012 was originally adopted on January 1, 1977, as Florida Administrative Code Rule 10-5.12, and was amended four times including: September 1, 1978; June 4, 1979; October 24, 1979; and April 24, 1980. Rule 10-5.12 was amended and renumbered as rule 10-5.012, on November 24, 1986. Rule 10-5.012 was amended on November 17, 1987. The rule was amended and renumbered as rule 59C-1.012, on November 24, 1992. The challenged rule 59C-1.012(2)(a) was adopted as part of the November 24, 1992, amendments to rule 10-5.012. Although parts of rule 59C-1.012 were amended on April 21, 2010, the language of rule 59C-1.012(2)(a) has not been amended since its inclusion in rule 59C-1.012, on November 24, 1992. “Rulemaking Authority” for rule 59C-1.012 is listed as sections 408.15(8) and 408.34(8). "Law Implemented” for the challenged rule is listed as section 408.039(5). Substantial Interests Orlando Health is substantially affected by rule 59C-1.012(2)(a), and has standing to seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. Specifically as it relates to Orlando Health, Florida Hospital seeks to prevent issuance of Orlando Health’s CON No. 10454 and to contest Orlando Health’s entitlement to issuance of its CON. Orlando Health’s substantial interests are affected by the delay in issuance of its CON. Intervenors Florida Hospital and CFHS (collectively “Intervenors”) are substantially affected by the implementation of rule 59C-1.012(2)(a), and have standing to intervene in this rule challenge proceeding. Florida Hospital’s substantial interests are affected by rule 59C-1.012(2)(a) in that, if rule 59C-1.012(2)(a) is determined to be invalid, then Florida Hospital's challenge to Orlando Health’s CON may also be determined to be invalid. Florida Hospital is an existing provider in the same district and subdistrict as that applied for by Orlando Health. Thus, without the rule in effect, Florida Hospital would be faced with potentially harmful competition with no meaningful avenue of redress. Finally, Florida Hospital was also a competing, cobatched applicant in the same batching cycle for the same service in the same service area as that applied for by Orlando Health. Regarding CFHS’s substantial interests affected by rule 59C-1.012(2)(a), if rule 59C-1.012(2)(a) is determined to be invalid, Florida Hospital will likely use that ruling as a basis for seeking dismissal of CFHS's petition contesting AHCA's approval of Florida Hospital’s CON application. CFHS was also a competing cobatched applicant, and thus, without the rule in effect, CFHS would also be faced with potentially harmful competition with no meaningful avenue of redress. On December 5, 2016, AHCA’s Notice of Intent was published in the Florida Administrative Register. Florida Hospital timely filed, within the 21-day period established by section 408.039(5)(a), a request for hearing to contest AHCA's intended approval of CFHS’ CON application. Orlando Health timely filed, within the 21-day period established by section 408.039(5)(a), a request for an administrative hearing to contest AHCA's intended approval of Florida Hospital’s CON application. No request for an administrative hearing to contest AHCA's intended approval of Orlando Health's CON application was filed within the 21-day period established by section 408.039(5)(a). On January 5, 2017, CFHS, as a challenged granted applicant and within the 10-day period established by rule 59C-1.012(2)(a), filed a petition contesting AHCA’s approval of Florida Hospital’s CON Application No. 10450. On January 11, 2017, Florida Hospital, as a challenged granted applicant and within the 10-day period established by rule 59C-1.012(2)(a), filed a petition challenging Orlando Health’s CON Application No. 10454. All parties to this stipulation have sufficient substantial interests affected that standing is established in this case and for appellate purposes. Comparative Review/Law Implemented Under the statutory scheme for administration of the CON program, a CON is required for the establishment of certain types of health care facilities (such as a hospital or nursing home), for the establishment of additional beds at an existing facility, and for the establishment of certain services. Persons seeking a CON must file an application in what is known as a "batching cycle." In a “batching cycle,” all applications seeking approval for the same type of facility, beds, or services undergo "comparative review" by AHCA. Applications submitted within the same batching cycle are commonly referred to as “cobatched” applications. "Comparative review" is defined as follows: "Comparative review" means the process by which CON applications, submitted in the same batching cycle for beds, services or programs for the same planning area, as defined by applicable rules, are competitively evaluated by the agency through final agency action for purposes of awarding a Certificate of Need. AHCA proposes a decision to approve or deny a CON application and then approved and denied applicants are afforded rights to further administrative proceedings pursuant to section 408.039. Specifically, section 408.039(5) contains the statutory provisions related to a request for administrative hearings regarding CON decisions: Within 21 days after publication of notice of the State Agency Action Report and Notice of Intent, any person authorized under paragraph (c) to participate in a hearing may file a request for an administrative hearing; failure to file a request for hearing within 21 days of publication of notice shall constitute a waiver of any right to a hearing and a waiver of the right to contest the final decision of the agency. A copy of the request for hearing shall be served on the applicant. The right to a comparative hearing related to CONs is set forth in paragraph (c), which states: (c) In administrative proceedings challenging the issuance or denial of a certificate of need, only applicants considered by the agency in the same batching cycle are entitled to a comparative hearing on their applications. Existing health care facilities may initiate or intervene in an administrative hearing upon a showing that an established program will be substantially affected by the issuance of any certificate of need, whether reviewed under s. 408.036(1) or (2), to a competing proposed facility or program within the same district. Pursuant to rule 59C-1.002(10), comparative hearing is defined to mean: (10) "Comparative hearing" means a single hearing, conducted pursuant to s. 120.57, F.S., and s. 59C-1.012, F.A.C., held to review all pending applications in the same batching cycle and comparatively reviewed by the agency. Comparative Review Proceedings Approved applicants in a batched cycle may challenge other applicants as an approved applicant. Once a cobatched applicant has challenged an approved application, the proceedings related to the comparative hearing commence. But under the rule, if each challenge to an approval is subsequently voluntarily dismissed, the approved applicant would be severed from the batch. The severed applicant then receives a CON separately from action with regard to its cobatched applicants by final agency action. (This was the scenario with regard to Orlando Health prior to CFHS’s request for a comparative hearing.) Likewise, an approved unchallenged applicant is severed from the batch and receives the CON awarded by the SAAR by separate final agency action. These processes are not at issue in this matter, but are codified in subparagraphs (b) and (c) of section (2) of the rule. Savings Statute In 1997, the Florida Legislature recognized all of AHCA's rules, including the CON Administrative Hearings Procedure rule, declaring the rules implementing CON statutes effective and enforceable. In 1997, section 408.0455 provided: The rules of the agency in effect on June 30, 1997 shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency, . . . . In 2004, section 408.0455 was amended to state: The rules of the agency in effect on June 30, 2004 shall remain in effect and shall be enforceable by the agency with respect to ss. 408.031-408.045 until such rules are repealed or amended by the agency. Section 408.0455 has not been amended since 2004.
The Issue The issue is whether Mr. Harrison's response to question 8 on the General Contractor's Examination given on October 3, 1985 was incorrectly graded. If Mr. Harrison were given credit for his answer to that question, he would pass the examination. The examination was correctly graded, however, and the petition filed by Mr. Harrison should be dismissed.
Findings Of Fact Mr. William D. Harrison took the Florida Construction Industry Licensing Board's General Contractor's Examination on October 3, 1985. According to his grade report his grade was 68.65. A total grade of 69.01 is necessary to pass the examination. Rule 21E-16.05, Florida Administrative Code. If he were given credit for the answer he gave to question number 8 on the portion of the examination given the afternoon of October 3, 1985, he would pass the examination. The question at issue sought an estimate of the amount of concrete necessary to construct entrance steps for a hypothetical building. The Department of Professional Regulation, Office of Examination Services had prepared drawings for a building consisting of 14 different sheets showing various elevations, aspects or other details of the building. These drawings were used in answering the examination questions. Question 8 read: The total volume of concrete to place the concrete entrance steps (only) is cubic yards. Select the closest answer. (A) 4.7 (B) 5.9 (C) 6.5 (D) 7.0 Mr. Harrison chose answer (A). The correct answer is answer (D). Sheet 4 of 14 of the drawings shows the first floor plan for the building. There are a total of four 11'6" spans of concrete entrance steps to the covered entry on the north and south sides of the building. The detail of the steps on sheet 4 of 14 shows that they generally have a 6" rise and are 1' in depth. According to the same sheet of the drawings, there are also other concrete steps to be constructed on the east and west sides of the building of 11' spans. In the northwest and southeast corners of the building there are enclosed stairwells serving the four floors of the building. The steps in these stairwells also contain concrete as an element in their construction. Mr. Harrison contends that the question is phrased in a misleading manner. In his view only the north and south entrance steps should be included in the calculation of the amount of concrete needed for "entrance steps (only) ." According to his calculations, placing those entrance steps would require 4.889 cubic yards of concrete. The closest answer available is 4.7, answer (A), which he gave. By reference to a dictionary of construction terms, Mr. Harrison argues that a building's area excludes uncovered entrances, terraces and steps. He believes he correctly excluded the covered steps on the east and west sides of the building from the calculation of "entrance steps," treating them as part of the building area, not entrances. The Departments contends that the question is specifically constructed to test the level of detail with which examinees read the drawings. On sheet 4 of 14 the symbol "A/4" appears, with a line cutting perpendicularly through the western steps. That symbol points out to examinees that a detailed drawing for the construction of the concrete entrance steps appears on that sheet. That perpendicular line through the western steps demonstrates that the eastern and western steps are "entrance steps" in the plans, and must be included in the calculation required in question 8. Answer (A), chosen by Mr. Harrison, is a distractor specifically designed to determine whether examinees have included the east and west steps in their calculation. If excluded, the calculation yields an answer of exactly 4.7 cubic yards of concrete (Mr. Harrison's calculation of 4.889 is slightly off). If all four spans of entrance steps are included, the correct answer of 7.0 cubic yards is obtained. The phrase "entrance steps (only)" appears in question 8 to make clear to examinees that the concrete allocable to the steps of the enclosed northwest and southeast stairwells is not part of the calculation. After an examination is graded, but before the grade reports are distributed, the Department does a statistical analysis of the patterns of responses to all examination questions to determine whether those patterns reveal a problem such as a general misreading of any questions. If a question performs badly, it can be deleted from the grading process before the grade reports are distributed to examinees. The analysis done on the answers to question 8 shows that of the 887 examinees, 180 of those who ultimately scored in the upper 27 percent of the examination overall answered the question correctly with answer (D); of those scoring in the middle 46 percent on the overall examination, 148 gave the correct answer; of those examinees scoring in the lower 27 percent overall, only 69 gave the correct answer. Among those choosing answer (A), as Mr. Harrison did, 36 of those who scored in the upper 27 percent overall gave that answer, 116 of those in the middle 46 percent chose the answer, and 102 of those scoring in the lower 27 percent chose that answer. Statistically, the question performed well. The evidence shows that answer (A) acts as the distractor which it was designed to be. Those who do not read the drawings carefully select the answer which would be correct if only the north and south steps are included in the calculation. Given the specificity of the drawing showing the east and west steps as entrance steps, however, Mr. Harrison's objection to the grading of his answer to question 8 is not well founded. Mr. Harrison had also raised, in his letter challenging his grade, an objection to another test question. At the hearing, however, he abandoned that challenge.
Recommendation It is recommended that the petition for regrading of the General Contractor's Examination given in October 1985 by the Construction Industry Licensing Board be DENIED. DONE AND ORDERED this 28th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1986. COPIES FURNISHED: Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. William D. Harrison 3490 Artesian Drive Lantana, Florida 33462
