The Issue The issues in these cases are whether the Agency for Health Care Administration (AHCA or Agency) should renew the assisted living facility (ALF) and limited nursing services (LNS) licenses held by Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon), and whether AHCA should fine Avalon for alleged statutory and rule violations.
Findings Of Fact Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon) holds a biennial assisted living facility (ALF) and limited nursing services (LNS) license issued by AHCA. Avalon's ALF is in a residence at 1250 Willow Branch Drive in Orlando, Florida. It has a licensed capacity of six beds. There are six bedrooms in the residence. Four are designated as "licensed" on the ALF's floor plan. Two bedrooms are designated as "unlicensed." In February 2013, Avalon applied to AHCA to renew its license for the years 2013 through 2014.3/ In July 2013, AHCA conducted a biennial survey to determine whether Avalon's license should be renewed. Several deficiencies were noted, including: Tag A0007, Class III, admitting a resident who was ineligible due to inability to transfer from bed to wheelchair with assistance; Tag A0008, Class III, a missing AHCA Form 1823 health assessment; Tag A0009, Class IV, failure to have a resident sign a contract for six months after admission; Tag A0030, Class III, using bedrails without a doctor's order to confine a resident in bed; Tag A0076, Class III, not having a written policy requiring staff to immediately contact hospice if a resident receiving hospice services suffers cardiopulmonary arrest; Tag A0083, Class III, not having documentation that staff on duty had current CPR and first-aid training; and Tag A0162, Class III, not having documentation of a resident's informed consent as to whether a nurse would oversee Avalon's assistance with self-administration of medication. Avalon did not take issue with the deficiencies or classifications at the time and took prompt action to correct them.4/ In September 2013, AHCA conducted a follow-up survey, which disclosed that the deficiencies noted in July 2013 were corrected or no longer existed. As a result, Avalon was not fined for those deficiencies. However, during the follow-up survey, it came to the attention of AHCA that an individual, identified by his initials, R.M., to preserve confidentiality, went missing from an ALF operated nearby at 13230 Early Frost Circle by Avalon's Assisted Living II, LLC, d/b/a Avalon's Assisted Living II (Avalon II). Avalon and Avalon II had the same administrator, Chiqquittia Carter-Walker, who had a controlling interest in both facilities. R.M. could not be found despite an all-out police search. As a result, AHCA initiated a complaint investigation and declined to grant Avalon's renewal application pending completion of the investigation.5/ In October 2013, while the September 2013 incident was being investigated, another apparent deficiency came to the attention of AHCA's surveyors. They noticed that an 81-year-old resident of Avalon's ALF, who is identified by her initials, D.D., to preserve confidentiality, had metal surgical staples in her scalp from her forehead to the crown of her head. There appeared to be dried blood around the staples. At about this time, Avalon's administrator, Mrs. Carter-Walker, observed that D.D. was unable to transfer from bed to wheelchair, which was not normal for her, and appropriately decided to arrange for the resident to be taken to the hospital by ambulance. Further investigation into the metal staples revealed to the surveyors that they had been placed in the resident's scalp when she was hospitalized in July 2013 for medical attention to a head wound incurred when she fell while a resident of Avalon. AHCA initiated a complaint investigation into the reason why the staples remained in the resident's scalp for three months, which became another reason for AHCA's denial of Avalon's renewal application pending completion of the investigation. September 2013 Complaint Investigation Regarding R.M. The R.M. investigation resulted in six alleged deficiencies: Tag A025 (Resident Care - Supervision), Class II, inadequate resident care and supervision; Tag A0004 (Licensure - Requirements), unclassified, placing R.M. in an unlicensed room and/or exceeding licensed bed capacity at Avalon's ALF; Tag A077 (Staffing Standards - Administrators), Class III, inadequate supervision of the ALF by the administrator; Tag A079 (Staffing Standards - Levels), Class III, inadequate staffing for the residents, including R.M.; Tag A160 (Records - Facility), Class III, not listing R.M. as a resident on the admission/discharge log; Tag A167 (Resident Contracts), Class III, not having a resident contract for R.M.; Tag A190 (Administrative Enforcement), Class III, having staff not cooperate with AHCA's investigation; and Tag AZ815 (Background Screening; Prohibited Offenses), unclassified, letting Robert Walker provide personal care or services directly to R.M. after being arrested and awaiting disposition on several felony charges. Essential to all of the charges arising out of the September complaint investigation is R.M.'s alleged status as a resident. Avalon's position is that he was a non-resident renter of one of the unlicensed beds, not a resident of its ALF. Avalon's first contact with R.M. was through the discharge staff at Florida Hospital, where he had been admitted after being involuntarily committed under the Baker Act. After telephonic communication about whether Avalon could accept R.M. as a resident in its ALF, Mrs. Carter-Walker and her husband, Robert Walker, went to the hospital on July 19, 2013, to meet Mary Loftus, a social worker on the hospital's discharge team, and R.M. At the time, Mr. Walker had pending felony charges that disqualified him from working at the ALF or having direct contact with residents.6/ During the meeting, R.M. was cooperative, pleasant, with euthymic (normal) mood and constricted affect, and some confusion in thought process. R.M.'s participation ended when he agreed to go to Avalon's ALF and stated he would look forward to seeing Mrs. Carter-Walker and her husband on the following Monday. The social worker then further discussed the discharge plan with Mrs. Carter-Walker and her husband and noted R.M.'s "exit-seeking behavior" upon admission at the hospital - meaning, he would try to leave the hospital without being discharged. They also discussed finances, including R.M.'s $1,400 a month Social Security benefit and possible eligibility for Veteran Administration benefits, and R.M.'s nearest relatives, his foster "son" and his "daughter-in-law," Jacqueline Renea Fulcher, who lived in Polk County. The social worker then telephoned to arrange for Mrs. Fulcher also to be at the hospital for the planned discharge. When Mrs. Carter-Walker and her husband arrived at the hospital for the discharge on July 23, 2013, they were given an AHCA Form 1823, signed by R.M.'s psychiatrist the day before. The form stated R.M.'s needs could be met in an ALF that is not a medical, nursing, or psychiatric facility. The form stated that R.M. was born in 1934, had dementia, was forgetful, required fall precautions, required daily observation for his well-being and whereabouts, and required daily reminders for important tasks. The form also listed R.M.'s medications, including 81 mg aspirin, 10 mg simvastatin, 25 mg sertraline, and 50 mg hydroxyzine hydrochloride. The form stated that R.M. did not need help with taking his medications and could use a pill box. The form stated that R.M. could make phone calls independently and could prepare meals, shop, and handle personal and financial affairs with assistance. From the discussions and Form 1823, it was clear to the Florida Hospital discharge team that R.M. was being discharged to Avalon's ALF.7/ This also was the clear understanding of Mrs. Fulcher. She had asked for a letter signed by R.M.'s psychiatrist to use when they went to the bank to access R.M.'s funds to pay for the ALF. She thought she would need it to explain to bank officials in the event R.M. acted out. She understood that is what happened when staff of R.M.'s previous ALF, Sunrise, took him to the bank to access his funds, which resulted in his involuntary commitment and admission to Florida Hospital on July 3, 2013. The letter she received stated that R.M. was diagnosed with dementia disorder with behavioral disturbances and mood disorder and was unable to make decisions for daily living. R.M. was discharged to Avalon's ALF on July 23, 2013. Mrs. Carter-Walker and her husband drove to Florida Hospital to pick R.M. up and drive him to the ALF. R.M. got into the vehicle with them, and Mr. Walker drove.8/ Mrs. Fulcher followed in her car. They made a stop at a Walmart to get clothing for R.M. While Mrs. Fulcher was parking her car, the other vehicle parked, and R.M. jumped out and walked quickly or ran into the store, away from Mrs. Carter-Walker and her husband. Mrs. Fulcher went into the store after R.M., who seemed agitated and did not seem to know or trust them. Mrs. Fulcher tried to calm him down and explain the situation to him. It was decided that R.M. should continue on in Mrs. Fulcher's car. They then stopped at a bank to try to access R.M.'s funds to pay Avalon, but they were unsuccessful in doing so because they did not have acceptable identification for R.M. From there, they continued on to Avalon,9/ where Mrs. Fulcher was shown the room R.M. would be staying in, and they discussed R.M.'s medications, which Mrs. Carter-Walker said she would obtain from the pharmacy, and his identification, which Mr. Walker said he would retrieve from Sunrise ALF. The next day, Mrs. Fulcher was supposed to return to the bank with R.M. and his identification to obtain funds to pay Avalon, but she had a family medical emergency and had to fly to Virginia, where she remained for two weeks. When she returned, she tried to contact Avalon by telephone and left messages but did not get a call back from Avalon. On August 22, 2013, R.M. signed a document making Mrs. Carter-Walker his Social Security benefit payee, and she began receiving his Social Security benefits at Avalon. At some point in time, she generated statements showing that Avalon was charging R.M., as "tenant," $774.10 as rent for July 2013 (at the monthly rental rate of $2,000, prorated), and $2,400 for August and September 2013 (at the monthly rental rate of $2,400). While AHCA surveyors were at Avalon on Willow Branch Drive on September 11, 2013, conducting a follow-up survey on the deficiencies noted in July 2013, they learned that R.M. had walked away from Avalon II's ALF on Early Frost Circle, refused to come back when asked by the sole staff on duty at the time, did not return, and could not be found despite an all-out police search. Avalon's staff denied having any knowledge about R.M. and deferred all questions to Mrs. Carter-Walker. Mrs. Carter- Walker took the position that R.M. was not a resident of Avalon. She testified that she conducted her own assessment of R.M. and, without notifying either Florida Hospital or Mrs. Fulcher, determined that he did not require the services of an ALF but could be an independent renter of one of Avalon's unlicensed beds. She showed surveyors a pillbox she said R.M. used independently for his medications. The position taken by Avalon as to R.M.'s status is inconsistent with clear and convincing evidence to the contrary. Myrtus Furbert was the sole staff on duty at Avalon II on September 10, 2013. She testified that R.M. spent the previous night there, having been brought there by Mrs. Carter-Walker with a bag of clothing, but no medications. When Ms. Furbert asked about his medications, Mrs. Carter-Walker told her he had no medications because Avalon was not being reimbursed for them. R.M. had no cell phone, wallet, or personal or ALF identification because Mrs. Carter-Walker did not trust him not to lose them. He also did not have a key to either Avalon on Willow Branch Drive or Avalon II on Early Frost Circle. When R.M. absconded, Ms. Furbert notified Mrs. Carter-Walker, who notified the police, essentially following Avalon's elopement policy for ALF residents. Ms. Furbert also testified convincingly that she and other staff were instructed by Mrs. Carter-Walker to be cautious about discussing potential deficiencies with surveyors and to defer those kinds of questions, and in particular questions regarding R.M., to her. Consistent with that testimony, staff at Avalon told AHCA's surveyors that they knew nothing about R.M., and Ms. Furbert was not forthright initially when questioned about him. Mrs. Carter-Walker testified, and Avalon took the position, that staff did not know anything about R.M. because he was an independent boarder, not an ALF resident. Her testimony and Avalon's position are rejected as implausible and contrary to the clear and convincing evidence to the contrary. R.M. was a resident of Avalon's ALF, notwithstanding Avalon's position to the contrary and its failure to give him the services he should have had. The facts alleged in the deficiency tags arising out of the September 2013 complaint investigation were proven by clear and convincing evidence. October 2013 Complaint Investigation Regarding D.D. Avalon gave excuses for not having the metal staples removed from D.D.'s scalp for over three months. Mrs. Carter- Walker testified that the doctor who came monthly to Avalon's ALF stopped accepting D.D.'s insurance and that she tried to telephone D.D.'s son to get the name of her doctor, got no answer at first, and later talked to him and learned that D.D. had no other doctor. She testified that she then asked the Florida Hospital doctor who placed the staples to remove them, but that doctor declined. She testified that she did not take D.D. to a walk-in clinic or emergency room to have the staples removed because D.D.'s son had a durable power of attorney, and he would have to be present to authorize the removal of the staples. D.D.'s son did not recall getting any telephone calls from Mrs. Carter-Walker before October 10, 2013, and that he first learned about the staples when he went to Florida Hospital the next day. His testimony was clear and convincing and is accepted. Her testimony was self-serving and is rejected, if it was intended to mean that she took appropriate steps to notify the son about the staples and ask him to give consent to have them removed prior to October 10, 2013. The evidence was clear and convincing that it was inappropriate medically for the staples to remain in D.D.'s scalp for three months. Although there was no clear and convincing evidence that the staples caused an infection or that skin grew over them so as to require additional surgery to remove them, both were possible results from leaving the staples in too long. D.D.'s son relied on Avalon to care for his mother. Avalon should have taken appropriate steps to have the staples removed before October 10, 2013. Pattern of Deficient Performance The tags noted in the July 2013 re-licensure survey reflect several relatively minor deficiencies, some little more than paperwork deficiencies, which were corrected promptly. They do not, in themselves, reflect a pattern of deficient performance. The tags from the September 2013 complaint investigation involving R.M. arose from an isolated incident, in that there was no evidence that any resident eloped before or since. However, the tags include more than just an elopement. The deficiencies actually arose from a decision by Mrs. Carter- Walker, whether before or after the elopement, not to treat R.M. appropriately as an ALF resident or provide the ALF services he should have been given, while she and Avalon collected R.M.'s Social Security benefits intended to pay for those services. Avalon's decision was not disclosed to Florida Hospital, to Mrs. Fulcher, or to AHCA. This decision contributed to R.M.'s ultimate elopement. When Avalon's actions were disclosed through R.M.'s elopement, Mrs. Carter-Walker attempted to manage the consequences through her instructions to her ALF staff not to provide certain information to AHCA's surveyors, except through her. The tags from the October 2013 complaint investigation involving D.D. arose from an isolated incident, in that there was no evidence that any resident was medically neglected before or since. However, these deficiencies also arose from a decision by Mrs. Carter-Walker not to provide the ALF services D.D. should have been given. D.D.'s son, who was her health care surrogate, was not kept apprised of D.D.'s medical condition or asked to cooperate in having the metal staples removed from his mother's scalp. Avalon also did not disclose metal staples to AHCA directly or by making reference to them in D.D.'s ALF records. AHCA happened to become aware of them when its surveyors happened to notice the staples while they and Mrs. Carter-Walker were attending to D.D. for an apparent change in her medical condition that occurred while a survey was being conducted. When the staples were noticed and investigated, Mrs. Carter-Walker and Avalon attempted to avoid responsibility by blaming D.D.'s son and her Florida Hospital doctor. The tags arising out of the R.M. and D.D. investigations, while relatively small in number, reflect a troubling pattern of deficient performance involving inadequate supervision and lack of appropriate attention to the needs of ALF residents, together with attempts to hide the deficient performance from family members and AHCA, and the development of an unhealthy relationship with the AHCA surveyors and regulators that has resulted in a mutual lack of trust. Avalon III Amended Final Order Mrs. Carter-Walker had a controlling interest in Avalon and in Avalon III, which applied for a license to operate an ALF at a third location in Orlando. AHCA gave notice of intent to deny the application for licensure on several grounds, including: unlicensed operation of an ALF at 1812 Crown Hill Boulevard in Orlando in July and August 2009; expiration of the applicant's lease on the facility to be licensed; and the disqualification of Mr. Walker, who was a controlling interest, administrator, and financial officer on the application. Avalon III requested a hearing, and a Recommended Order of Dismissal was entered on the ground that Mrs. Carter-Walker and Mr. Walker took the Fifth and declined to answer discovery questions relevant to the grounds for denial of Avalon III's application. As a result, Avalon III essentially chose not to meet its burden to prove entitlement to licensure. The Recommended Order of Dismissal was adopted in an Agency Amended Final Order. Avalon III appealed, and the First District Court of Appeal issued a per curiam affirmance on December 17, 2014. Avalon, etc. v. AHCA, Case 1D13-5972, per curiam aff'd (Fla. 1st DCA Dec. 17, 2014). There was no request for rehearing, and the Mandate issued on January 5, 2015. Id.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order denying Avalon's license renewal application and fining Avalon $5,500. DONE AND ENTERED this 21st day of January, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 21st day of January, 2015.
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
The Issue The issue in this matter is whether Respondent’s proposed Florida Administrative Code Rule 59A-36.001 constitutes an invalid exercise of delegated legislative authority. Before that issue may be reached, however, it is necessary to determine whether Petitioner has standing to challenge the proposed rule.
Findings Of Fact AHCA is the state agency responsible for the licensure of assisted living facilities (“ALFs”) in the State of Florida. See Ch. 429, Part I; and Ch. 408, Part II, Fla. Stat. As part of its responsibilities, AHCA serves as the enforcement arm for the licensed activity and operation of ALFs. See gen., Chs. 408 and 429, Fla. Stat.; Fla. Admin. Code R. 58A-5 and 59A-35. Petitioner is currently licensed by AHCA to operate an ALF in Hilliard, Florida. Accordingly, Petitioner falls under AHCA’s jurisdiction and is required to adhere to all rules promulgated by AHCA, as well as the Department of Elder Affairs, pertaining to ALFs. See §§ 408.802(13) and 429.01(2), Fla. Stat. Section 429.28, Florida Statutes, is the “resident bill of rights” for ALFs. The resident bill of rights provides that no resident of an ALF “shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility.” Section 429.28 enumerates 12 specific rights for ALF residents. In its 2015 legislative session, the Florida Legislature amended section 429.28(3)(a), which states (as amended): [AHCA] shall conduct a survey to determine general compliance with facility standards and compliance with residents’ rights as a prerequisite to initial licensure or licensure renewal. [AHCA] shall adopt rules for uniform standards and criteria that will be used to determine compliance with facility standards and compliance with residents’ rights. Thereafter, AHCA drafted rule 59A-36.001 entitled, “Standards and Criteria for Determining Resident Rights.”4/ AHCA published the proposed rule in Volume 42, No. 50, March 14, 2016, of the Florida Administrative Register. On June 8, 2016, AHCA published a Notice of Change/Withdrawal amending several sections of the proposed rule. AHCA’s stated purpose and effect of rule 59A-36.001 is to “create a new rule chapter regarding residents’ rights in assisted living facilities licensed by the Agency. Section directs the Agency to adopt rules for uniform standards and compliance with residents’ rights.” Rule 59A-36.001 specifically provides, in pertinent part5/: 59A-36.001, Standards and Criteria for Determining Compliance with Facility Standards and Resident Rights DEFINITIONS. In addition to the terms defined in Section 429.02, F.S., and Rule 58A-5.0131, F.A.C., the following definitions are applicable in this rule chapter. “Core Survey Task” means tasks conducted by Agency survey staff that focus on core areas of regulations. “Timely Manner” means as soon as possible, but not to exceed 24 hours of Agency staff having requested materials. Rule 59A-36.001(2) is entitled “SURVEY PROCESS FOR RESIDENT RIGHTS” and provides, in pertinent part: The following core survey tasks shall be utilized during survey activities in order to determine the facility’s compliance with resident rights pursuant to 429.28, F.S. and 58A-5.0182, F.A.C. The surveyor(s) conducts a tour of the facility to determine if the residents’ health, safety, and welfare are maintained. The tour includes observations and assessments of the following: . . . . Thereafter, rule 59A-36.001(2), in subsections 1 and 2, lists approximately 35 “standards and criteria” a surveyor is to use to determine whether the “residents’ health, safety, and welfare” are maintained by the ALF. In addition to the general reference to section 429.28 and Florida Administrative Code Rule 58A- 5.0182, approximately 18 of the enumerated “standards and criteria” refer to section 429.14(6) or a specific provision from chapter 58A-5. Catherine Anne Avery testified on AHCA’s behalf. Ms. Avery is the manager for the Assisted Living Unit at AHCA. She was the lead developer and drafter of rule 59A-36.001. Ms. Avery explained that, as a prerequisite to initial licensure or licensure renewal of ALFs, AHCA is responsible for surveying (inspecting) ALFs to determine compliance with facility standards and residents’ rights. Pursuant to the Legislature’s directive in section 429.28(3)(a), AHCA created rule 59A-36.001 to standardize the survey process for all AHCA surveyors across the state. Ms. Avery drafted the proposed rule to ensure that surveyors use uniform criteria when determining whether an ALF has generally complied with required facility standards and resident care standards and rights. According to Ms. Avery, AHCA created rule 59A-36.001 solely and exclusively to educate AHCA surveyors on how to conduct ALF surveys. Rule 59A-36.001 is not intended to be used by ALFs or providers. Rule 59A-36.001 essentially creates a checklist of the “core” statutory and administrative rule standards. AHCA intends for every surveyor to use the standards and criteria outlined in rule 59A-36.001 during each survey. Ms. Avery relayed that a survey requires a surveyor to tour the ALF facility; observe ALF operations and services; interact with ALF staff and residents; and interview ALF employees and residents. During the survey, the surveyor is attentive for any possible violations of Florida law. If the surveyor finds evidence of a violation, the surveyor is to refer to the pertinent statutory authority and related administrative rules. After reviewing the applicable statutes and rules, if the surveyor determines that the ALF has committed a violation, the surveyor may issue a Statement of Deficiency to the ALF. Ms. Avery testified that each “standard and criteria” listed in rule 59A-36.001 is based on existing statutory and rule authority. Ms. Avery explained that rule 59A-36.001 does not impose any requirements on an ALF or include any criteria that is not already set forth in Florida statutes or other agency rules. Similarly, the proposed rule does not create new standards or criteria with which Petitioner is required to comply. Therefore, because ALFs must comply with the existing statutes and administrative rules listed in rule 59A-36.001, Ms. Avery testified that the proposed rule will not affect Petitioner. Ms. Avery expressed that AHCA will not cite rule 59A-36.001 to impose administrative penalties on Petitioner (or any other ALF). Any deficiency a surveyor might identify during a survey is encompassed within other applicable rules or statutory authority.6/ Accordingly, Petitioner cannot be sanctioned by AHCA under rule 59A-36.001 for failure to comply with “facility standards” or “residents’ rights.” Ms. Avery conceded that rule 59A-36.001 does not record every statute or rule provision pertaining to “facility standards” and “residents’ rights.” She explained that, in compiling one list of uniform standards and criteria, AHCA could not practically include every factor that might impact an ALF resident’s safety and well-being. Ms. Avery did not believe it was possible to delineate every area of concern or condition that affects the “legal rights, benefits, or privileges” of ALF residents. Instead, AHCA fashioned rule 59A-36.001 to reference only the “core survey tasks.” These tasks focus on the core area of regulations that are designed to protect the health, safety, and welfare of ALF residents. In setting down uniform standards into one rule, AHCA wanted to focus its surveyors on those areas that are most important and have the highest impact on residents’ rights. At the final hearing, Petitioner elicited testimony from Ms. Avery that AHCA surveyors may utilize other resources during surveys that are not incorporated into rule 59A-36.001. These resources include the Aspen Regulation Set (“Aspen Reg Set”) and the Assisted Living Resource Manual (“Resource Manual”). These two documents provide a surveyor with lists of AHCA protocols, statutory references, and various investigative forms that offer guidance on how a surveyor is to conduct a survey or gather evidence to assess an ALF’s compliance with governing law. The Aspen Reg Set contains a list of pertinent statutes and administrative rules a surveyor may use to assign deficiencies. The Resource Manual contains an interview worksheet that a surveyor may use while questioning facility staff, residents, or residents’ family members. Ms. Avery explained that rule 59A-36.001 was not designed to directly replace the Aspen Reg Set or the Resource Manual. Instead, all these resources combine to provide a “toolbox” for the surveyor to use to determine compliance. The Aspen Reg Set and the Resource Manual are merely tools the surveyor may employ at his or her discretion. No surveyor is required to use the documents during a survey. In addition, Ms. Avery explained that the statutes and administrative rules cited in the Aspen Reg Set or the Resource Manual consist of the same law that AHCA listed in rule 59A-36.001. Ms. Avery also testified that section 429.28 authorizes AHCA surveyors to refer to recognized “community standards” during ALF surveys. Section 429.28(1)(j) specifically states: Every resident of a facility shall have the right to: * * * (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. AHCA, however, did not incorporate into rule 59A-36.001 all the various Florida “community standards” that a surveyor may encounter to determine an ALFs’ compliance with residents’ rights. Ms. Avery explained that “community standards” are not codified in statute. In addition, AHCA does not have authority to define “community standards.” Instead, AHCA surveyors consider community standards on a case-by-case basis depending upon facts and circumstances that are particular to the specific community. Ms. Avery also addressed a specific provision AHCA included in rule 59A-36.001 regarding the time period in which an ALF must produce documents following a surveyor’s request. Rule 59A-36.001(2)(4) states that, “The facility must provide agency staff with requested documents in a timely manner and allow the agency staff to obtain copies.” (Emphasis added). Rule 59A-36.001(1)(b) defines “timely manner” to mean “as soon as possible, but not to exceed 24 hours of Agency staff having requested materials.” Ms. Avery explained that the time period for an ALF to produce documents is already addressed in existing Florida law. Specifically, rule 58A-5.024 provides that an ALF “must maintain required records in a manner that makes such records readily available at the licensee’s physical address for review by a legally authorized entity . . . ‘readily available’ means the ability to immediately produce documents, records, or other such data, either in electronic or paper format, upon request.” (Emphasis added). AHCA decided to use “24 hours” in rule 59A- 36.001(1)(b) instead of the term “immediately” as a way to provide the surveyor a workable frame of reference when requesting documents from ALFs. Instead of demanding that an ALF produce documents “immediately,” the surveyor will have the discretion to grant an ALF a more practical time period to produce the records (i.e., within 24 hours). Essentially, AHCA intended surveyors to use the 24-hour time period as a rule of thumb. Ms. Avery opined that Petitioner will not be affected by a surveyor’s use of the term “timely manner” in rule 59A- 36.001(1)(b). AHCA can sanction an ALF for failing to produce records “immediately” under existing statutes and administrative rules. See, e.g., §§ 408.811(3), 429.14, and 429.34(2), Fla. Stat. AHCA will not cite to rule 59A-36.001 for an ALF’s failure to produce records in a “timely manner.” Finally, Ms. Avery pointed out that AHCA does not have rulemaking authority regarding facility standards or residents’ rights. Instead, the Department of Elder Affairs has sole authority under Florida law to promulgate rules for residents’ rights in chapter 429. See § 429.41, Fla. Stat. Facility standards for ALFs are set forth in chapter 429, part I, and chapter 58A-5. Therefore, AHCA cannot, and did not, include any “uniform standards and criteria” in rule 59A-36.001 that expand, interpret, reduce, or otherwise modify the rules for facility standards and residents’ rights promulgated by the Department of Elder Affairs. Petitioner’s owner and executive director, Douglas Adkins, testified on Petitioner’s behalf. Mr. Adkins has administered Petitioner for over 29 years. Petitioner asserts that rule 59A-36.001 is vague in that the proposed rule lacks adequate specificity. Because of its vagueness, Petitioner argues that rule 59A-36.001 fails to establish adequate standards for AHCA decisions and provides AHCA surveyors too much discretion during the survey process. Mr. Adkins expressed that the “uniform standards and criteria” listed in rule 59A-36.001 do not contain sufficient detail to fairly and reasonably inform ALFs how AHCA surveyors will determine compliance with applicable statutes and rules. Mr. Adkins expounded that AHCA must enunciate more clearly what regulations surveyors might cite to sanction ALFs, and how they will determine compliance. Mr. Adkins explained that Petitioner initiated this rule challenge to ensure that it is fully aware of AHCA’s expectations prior to its licensure renewal surveys. To make sure that its ALF services comply with all legal requirements, Petitioner seeks a comprehensive understanding of how AHCA surveyors will determine compliance with applicable facility standards and residents’ rights. Mr. Adkins testified that he keenly reviews all materials and resources to which AHCA surveyors may refer during their surveys. He also studies AHCA postings and informational releases to ascertain pertinent Florida law. Having AHCA set forth in rule 59A-36.001 the exact standards its surveyors will use to determine ALF compliance will greatly assist him achieve his goal of administrating his ALF in full compliance with Florida statutes and administrative rules, as well as be fully prepared for Petitioner’s licensure renewal surveys. Despite his claim, however, Mr. Adkins did not point to any distinct example (or prospective AHCA survey) where an AHCA surveyor could cite rule 59A-36.001 as a basis for a legal deficiency or violation while surveying his facility. Neither did Mr. Adkins identify any standard or criteria set forth in rule 59A-36.001 with which Petitioner might fail to comply. Further, Mr. Adkins did not present evidence of any imminent or pending adverse administrative action Petitioner might or will confront based on AHCA’s promulgation of rule 59A-36.001. The competent substantial evidence presented at the final hearing fails to prove that Petitioner is substantially affected by rule 59A-36.001. Petitioner did not show that the proposed rule will cause a real or immediate injury in fact. In addition, Petitioner failed to establish, by a preponderance of the evidence in the record, a factual basis that the proposed rule is vague. Conversely, AHCA demonstrated that rule 59A- 36.001 is not an invalid exercise of delegated legislative authority as to Petitioner’s objection that the proposed rule is vague.
The Issue Whether the Petitioners are entitled to an award of attorneys' fees and costs pursuant to Sections 120.569(2)(e) and 120.595(1), Florida Statutes, and, if so, in what amounts.
Findings Of Fact On October 3, 2001, AHCA served three Administrative Complaints on HHCI, apparently intending to revoke HHCI's licenses to operate nursing homes on the basis of a retroactive application of Section 400.121(3)(d), Florida Statutes (2001). The statute states in pertinent part: (3) The agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that: * * * (d) Is cited for two class I deficiencies arising from separate surveys or investigations within a 30-month period. HHCI filed petitions challenging AHCA's allegations in the Administrative Complaints. On October 12, 2001, HHCI filed a challenge to the non- rule policy of retroactive application (DOAH Case No. 01-3935RU) and a hearing was scheduled for October 23, 2001. The Petitions in the Administrative Complaint cases were forwarded by AHCA to DOAH on October 19, 2001, and were consolidated under DOAH Case No. 01-4124. The Final Order in Case No. 01-3935 RU, declaring AHCA's policy of retroactive application invalid, was issued on October 31, 2001. HHCI filed a Motion for Award of Attorney's fees in DOAH Case No. 01-4124 on November 2, 2001. That motion forms the basis for the instant case. At the time the Administrative Complaints were filed, the three HHCI facilities held standard licenses and were apparently operating in compliance with applicable law, with no unresolved survey violations pending. The day after the Administrative Complaints were served, AHCA issued a press release and scheduled a telephonic "media call-in" to reply to questions from interested press representatives. The result of the media attention was to cause great concern to both HHCI and the residents of their facilities as to the proposed closure of the facilities. AHCA distributed a letter to residents indicating that unless HHCI challenged the action, the facility would be closed in approximately 60 days. The AHCA letter advised residents that if HHCI challenged the proposed action, the proposed action "may be delayed." The AHCA letter did not indicate that any resolution of the dispute other than facility closure was possible. The result of the attention and statements by AHCA's representative was to cause great concern among residents and their families as to what living arrangements would be available for residents of the facilities. AHCA also placed monitors in each facility to discuss the pending action with residents and their families, as well as to observe the facility operations. There is no evidence that the placement of monitors in the facilities offered any level of comfort to residents or families. The monitors also apparently began citing the facilities for alleged additional violations of various regulations. In response, HHCI officials immediately sought legal counsel to address the situation. Counsel at the Washington, D.C., law firm, Proskauer Rose, became involved in representing HHCI. HHCI also retained Counsel in the Tallahassee office of the Broad and Cassel law firm, with whom it had no prior relationship. HHCI directed its legal team to review all possible options to resolving the matter expeditiously. Counsel considered both federal and state court action and filed a request for injunction in state court. HHCI also attempted to resolve the matter informally. On October 8, 2001, HHCI obtained an opinion from the Joint Administrative Procedures Committee (JAPC), a standing committee of the Florida Legislature, which concluded that "a strong legal argument" could be made that the retroactive application of the statute was improper. There is no evidence that AHCA considered the JAPC opinion. In any event, because informal attempts to resolve the matter were unsuccessful, HHCI legal counsel began an intensive effort to defend the company against the AHCA action. The Final Order in Case No. 01-3935RU held that there was an absence of legal authority to apply the new law retroactively. There was no appeal of the Final Order. After the Final Order was issued, AHCA abandoned the Administrative Complaints that sought to revoke HHCI's licenses and close the facilities. In this proceeding, HHCI seeks fees it incurred for the Broad and Cassel and the Proskauer Rose law firms and for presentation of the testimony of Al Clark at the fee hearing. HHCI presented nine invoices from Broad and Cassel that were admitted as HHCI Exhibit 1. The invoices submitted in this case do not duplicate time that was invoiced as part of the rule challenge-related fee case. Invoice #469914 dated November 1, 2001, is for a total of $23,835.87, including fees of $23,565 and costs of $270.87. The majority of the work in these cases was performed in October. The invoice indicates time spent considering several theories of defense to the complaints. Invoice #474211 dated December 1, 2001, is for a total of $2,282.02, including fees of $1,981.50 and costs of $300.52. Invoice #479185 dated January 2, 2002, is for a total of $257.59, including fees of $245 and costs of $12.59. Invoice #491866 dated February 9, 2002, is for a total of $5,463.05, including fees of $5,116.50 and costs of $346.55. Invoice #496833 dated April 3, 2002, is for a total of $161.74, including fees of $147 and costs of $14.74. Invoice #505207 dated June 7, 2002, is for a total of $738.68, including fees of $735 and costs of $3.68. Invoice #507485 dated July 2, 2002, is for a total of $296.17, including fees of $294 and costs of $2.17. Invoice #515997 dated October 2, 2002, is for a total of $1,625.93, including fees of $1586 and costs of $39.93. Invoice #516952 dated October 16, 2002, is for a total of $2,903.35, including fees of $2878 and costs of $25.35. HHCI presented the testimony of Al Clark, who was accepted as an expert on the issue of attorney fees. Mr. Clark testified as to the reasonableness of the fees and costs charged to HHCI by the Broad and Cassel law firm. Mr. Clark's testimony was not contradicted and is credited. The time and labor expended by employees of the Broad and Cassel law firm were reasonable in light of the legal issues presented by the administrative actions proposed by AHCA. The presumed goal of AHCA's action was to revoke the licensure of HHCI's three nursing homes. Broad and Cassel provided the substantial skill and expertise required to supply the necessary legal services. Broad and Cassel billed HHCI at an hourly rate. The hourly rates charged by Broad and Cassel personnel are reasonable. The rates ranged from $245 per hour for lead counsel to $90 per hour for support counsel. There was no prior business relationship between Broad and Cassel and HHCI. Broad and Cassel counsel has significant experience and skill in health care law and provided their services efficiently throughout the dispute. Because the proposed sanction was severe, and because the agency publicized its legal action, HHCI required an immediate legal response resulting in an intense initial amount of work by Broad and Cassel. Broad and Cassel personnel represented HHCI legal interests throughout the administrative proceedings and prevailed in defending against the proposed administrative action. Subsequent to the hearing, HHCI submitted Mr. Clark's invoice for $1,012.50. Mr. Clark's invoice reflects a reasonable effort expended in addressing the costs and fees at issue in this case. At the hearing, Mr. Clark further testified that an amount up to $10,000 would be possible for the resolution of this fee case. At this time, none of this expense has been incurred and is not properly awarded. Based on the foregoing, HHCI has satisfied the factors set forth in Florida Bar Rule 4-1.5(b) related to awards of fees and costs in this case, and is entitled to an award of fees and costs for the Broad and Cassel billing and for Al Clark's invoice. Mr. Clark was not asked for, and did not offer, an opinion about the reasonableness of the Proskauer Rose fees. There is no credible evidence supporting an award of fees for work performed by the Proskauer Rose firm. Based on the testimony presented during the hearing, the evidence fails to establish that the charges by the Proskauer Rose firm as set forth on the exhibit are reasonable. Billing records admitted into evidence as HHCI Exhibit 3 contain references to regulatory matters not directly at issue in the proceedings giving rise to this request for fees. Such additional matters include nursing home surveys performed in October 2001, preparations for informal dispute resolution (IDR) meeting related to survey issues, and regulatory matters occurring in other states. The IDR preparations, although apparently prompted by alleged problems identified by the monitors, were not at issue in the Administrative Complaints that form the basis for this fee request. Although HHCI asserts that an Administrative Law Judge, hearing the Administrative Complaints seeking license revocation, could have considered the alleged problems, such allegations would have required amendment of the pending Administrative Complaints. More likely, the allegations would have been the subject of new Administrative Complaints that would have been litigated separately, and, as such, costs related to IDR preparation are not properly awarded in the instant case. Further, the Proskauer Rose invoices indicate that hours billed on one invoice in "File #84028.0014" for October 12 (description beginning with "review faxed 256") and October 22 (description beginning with "Meeting with S. Davis and C. Schessler re preparation for IDR") were also billed on another invoice in "File #84028.0015." Duplicate billings would not support an award of attorney fees. AHCA'S MOTION FOR SUMMARY JUDGMENT On April 9, 2002, HHCI, a foreign limited partnership operating in the State of Florida, canceled the registration of HHCI Limited Partnership with the Florida Department of State. HHCI Limited Partnership continues to operate in other states and is registered in Massachusetts.
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
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 The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
