IN THE SUPREME COURT STATE OF FLORIDA TRUST CARE HEALTH SERVICES, INC., Petitioner/Appellant, CASE NO.: SC11-353 v. DCA NO.: 3D09-2568 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent/Appellee. / RESPONDENT S BRIEF ON JURISDICTION Tracy Lee Cooper Board Certified Appellate Attorney Florida Bar No. 0879231 Chief Appellate Counsel Agency for Health Care Administration 2727 Mahan Drive, MS 3 Tallahassee, Florida 32308 (850) 412-3630; FAX (850) 921-0158 Attorney for Respondent/Appellee
TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT...2 STATEMENT OF THE CASE AND FACTS...3 SUMMARY OF THE ARGUMENT...4 ARGUMENT I. THE THIRD DISTRICT S MAJORITY OPINION IN TRUST CARE AND THE FIRST DISTRICT S OPINIONS IN SULLIVAN AND FLORIDA HOSPITAL DO NOT CONFLICT; THEREFORE, THIS COURT LACKS DISCRETIONARY JURISDICTION...6 II. TRUST CARE S DUE PROCESS CLAIMS ARE UNPRESERVED AND INSUFFICIENT TO INVOKE THIS COURT S JURISDICTION...8 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF COMPLIANCE...10 i
TABLE OF AUTHORITIES Cases Page(s) Florida Hosp. v. Ag. for Health Care Admin., 823 So. 2d 844 (Fla. 1st DCA 1985)...2, 4, 6, 8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...5 Sullivan v. Dep t of Envt l Prot., 890 So. 2d 417 (Fla. 1st DCA 2004)...2, 4, 6, 8 Sunset Harbor Condo. Assn. v. Robbins, 914 So. 2d 925 (Fla. 2005)...9 Tillman v. State, 471 So. 2d 32 (Fla. 1985)...9 Trust Care Health Serv., Inc. v. Ag. for Health Care Admin., 50 So. 3d 13 (Fla. 3d DCA 2010)...2, 3, 4, 6, 7, 8, 9 Verizon Wireless Fla., Inc. v. Jacobs, 810 So. 2d 906 (Fla. 2002)...6, 7 Statutes Page(s) 120.68, Fla. Stat...6 408.815, Fla. Stat. (2007)...3, 4, 7, 8, 9 Rules Page(s) Fla. R. App. P. 9.030...2, 5, 8, 9 Fla. R. App. P. 9.210(a)(2)...10 Constitutions Art. V, 3(b)(3), Fla. Const...5 Miscellaneous Harry Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 NOVA L. REV. 431 (Sp. 2005)...5 ii
PRELIMINARY STATEMENT Petitioner, Trust Care Health Services, Inc., claims an express and direct conflict between the Third District Court of Appeals opinion in Trust Care Health Services, Inc. v. Agency for Health Care Administration, 50 So.3d 13 (Fla. 3d DCA 2010) and the First District Court of Appeals decisions in Sullivan v. Department of Environmental Protection, 890 So.2d 417, 420 (Fla. 1st DCA 2004) and Florida Hospital v. Agency for Health Care Administration, 823 So.2d 844, 484 (Fla. 1st DCA 1985). There is no conflict. Therefore, this Court lacks discretionary jurisdiction to hear this appeal and should deny or dismiss the Notice to Invoke Discretionary Jurisdiction. Fla. R. App. P. 9.030(a)(2)(A)(iv). Herein, Petitioner is referred to as Trust Care, and Respondent, the State of Florida, Agency for Health Care Administration, is referred to as AHCA or the Agency. The following are abbreviated: First District Court of Appeals ( First District ); Third District Court of Appeals ( Third District ); Trust Care Health Services v. Agency for Health Care Administration, 50 So.3d 13 (Fla. 3d DCA 2010) ( Trust Care ); Sullivan v. Department of Environmental Protection, 890 So.2d 417 (Fla. 1st DCA 2004) ( Sullivan ); and Florida Hospital v. Agency for Health Care Administration, 823 So.2d 844 (Fla. 1st DCA 2002) ( Florida Hospital ). 2
STATEMENT OF THE CASE AND FACTS AHCA hereby adopts the Third District s statement of the case and facts in the Trust Care majority opinion 1, but adds the following to aid the reader: AHCA denied Trust Care s application for a change of ownership home health agency license, pursuant to Section 408.815(1)(e), Florida Statutes (2007) controlling interest (i.e., President and 100 percent owner), Robert Marrero, was previously the controlling interest (i.e., administrator) of a home health agency that was terminated from Medicaid for site-visit deficiencies and had its license revoked, and because Trust Care neglected to disclose or explain Mr. Marrero s relationship with All-Med in either its application or in its response to AHCA s omissions letter (which specifically requested disclosure). Trust Care at 14, 15 & 17. On appeal, the Third District majority found AHCA did not commit clear error or abuse its broad discretion in requiring Trust Care and Marrero to be more forthcoming as part of the 2, because Trust Care s 1 Contra the Trust Care majority opinion, the Recommended Order was entered by an AHCA informal hearing officer, rather than an Administrative Law Judge. See Trust Care at 15. The Third District s statement of the case and facts is correct in all other respects. 2 AHCA relied primarily on Section 408.815(1)(e) to deny Trust Care s application, but it also charged a violation of Subsection (1)(a) in the Notice of Intent to Deny and mentioned it in the Recommended Order, adopted by AHCA s Final Order. 3
application and review process (and in denying Trust Care s application when it failed to do so). Trust Care at 18. As discussed below, the Third District majority opinion is largely predicated on the facts and on Section 408.815(1)(a), Florida Statutes (2007). Trust Care at 14-18. Trust Care filed the instant Notice to Invoke Discretionary Review after the Third District denied its request for a rehearing or rehearing en banc. SUMMARY OF THE ARGUMENT There is no express and direct" conflict between the Third District s majority opinion in Trust Care and the First District s opinions in Sullivan and Florida Hospital. All three opinions articulate the same legal standard for reviewing an agency s interpretation of a statute it administers. The Trust Care majority did not adopt AHCA s interpretation of Section 408.815(1)(e), but relied heavily on the facts and on Section 408.815(1)(a) to find AHCA did not commit clear error or abuse its broad discretion in requiring Trust Care and Marrero to be more forthcoming as part of the application and review process (and in denying Trust Care s application when it failed to do so). Trust Care s constitutional due process argument is unpreserved and insufficient to invoke this Court s jurisdiction. Therefore, this Court lacks discretionary 4
jurisdiction and should deny or dismiss Trust Care s Notice to Invoke Discretionary Jurisdiction. STATEMENT OF JURISDICTION This Court has discretionary jurisdiction to review the decision of one district court of appeal when it expressly and directly conflicts with a decision of another district court of appeal on the same question of law. Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv); Harry Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 NOVA L. REV. 431, 511 (Sp. 2005). The conflict need not be irreconcilable; jurisdiction may arise when an apparent conflict between two opinions could be harmonized or when a majority opinion misapplies controlling precedent. Anstead at 516-522. Regardless, a conflict must appear within the four corners of the majority opinion brought for review. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986); Anstead at 512. Absent a conflict, this Court lacks discretionary jurisdiction and should deny or dismiss the notice of discretionary review. Fla. R. App. P. 9.030(a)(2)(A)(iv); Anstead at 515. Further, if a genuine conflict exists, this Court should consider whether the issues presented are significant and whether the result achieved by the lower court was essentially fair and correct in deciding whether to accept review. Anstead at 523. 5
ARGUMENT ISSUE I THE THIRD DISTRICT S MAJORITY OPINION IN TRUST CARE AND THE FIRST DISTRICT S OPINIONS IN SULLIVAN AND FLORIDA HOSPITAL DO NOT CONFLICT; THEREFORE, THIS COURT LACKS DISCRETIONARY JURISDICTION. There is no conflict between the Third District s majority opinion in Trust Care and the First District s opinions in Sullivan and Florida Hospital. The First District s opinions in Sullivan and Florida Hospital state and then apply the general standard of review that courts should give deference to an agency s interpretation of a statute it administers but need not do so if that interpretation is clearly erroneous, unreasonable, or contrary to the plain meaning of the statutory terms. E.g., 120.68(7)(d), Fla. Stat.; Sullivan at 420-21; Florida Hospital at 847-49. The Trust Care majority opinion states this same standard of review, except that it leaves off the part about a court not needing to give deference to an interpretation contrary to a statute s plain meaning. Trust Care at 16. This omission is not error and does not create a conflict for two reasons. First, when the Trust Care majority states we will affirm an agency s interpretation of law... unless it is shown to be clearly erroneous it cites to Verizon Wireless Florida, 6
Inc. v. Jacobs, 810 So.2d 906, 908 (Fla. 2002) as the basis for this standard of review. In Verizon, this Court said that a court will not depart from the contemporaneous construction of a statute by a state agency charged with its enforcement unless the construction is clearly erroneous. Thus, the Trust Care majority clearly understood the phrase clearly erroneous in its statement of the standard of review to encompass interpretations or constructions contrary to the plain meaning. Trust Care at 16. Second, the Trust Care majority s decision was not driven by AHCA s interpretation of a Section 408.815(1)(e), but rather by: (a) Trust Care s repeated refusal to disclose facts and make explanations necessary to AHCA s determination whether Mr. Marrero s position as controlling interest would endanger the health, safety and welfare of Trust Care s clients; (b) the fact that AHCA could - and, in the majority s opinion, should - have denied Trust Care s application under Section 408.815(1)(a) because it failed to cooperate with AHCA s omissions letter and it demonstrated a lack of candor in its application; and (c) the majority s recognition that a ruling in Trust Care s favor would condone Trust Care and Mr. Marrero s lack of candor, would create a window for other similarly situated persons to avoid scrutiny by simply refusing to disclose information, and would therefore endanger the health, safety and welfare of home health 7
agency clients. Trust Care at 16-18. Importantly, the majority did not adopt AHCA s interpretation of Section 408.815(1)(e) but rather found that AHCA did not commit clear error or abuse its broad discretion in requiring Trust Care and Marrero to be more forthcoming as part of the application and review process (and in denying Trust Care s application when it failed to do so). Id. at 18. For these reasons, the Third District s opinion in Trust Care does not expressly and directly conflict with the First District s opinion in the cases of Sullivan and Florida Hospital and this Court lacks discretionary jurisdiction. ISSUE II TRUST CARE S DUE PROCESS CLAIMS ARE UNPRESERVED AND INSUFFICIENT TO INVOKE THIS COURT S JURISDICTION. Trust Care claims in its Jurisdictional Brief that the Third District majority s construction of Section 408.815(1) renders the statute unconstitutional by removing due process protections and that this constitutional claim somehow gives this Court jurisdiction to review this case under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). This allegation is incorrect on many levels. First, Trust Care failed to raise its constitutional due process claim especially with regard to Section 408.815(1)(e) - in the proceedings before AHCA and/or the Third District; 8
therefore, the issue is unpreserved. E.g., Sunset Harbor Condo. Assn. v. Robbins, 914 So. 2d 925, 928 (Fla. 2005); Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). Second, nowhere in Rule 9.030(a), Florida Rules of Appellate Procedure, does it state that an unpreserved constitutional due process claim is sufficient to invoke this Court s jurisdiction, discretionary or otherwise. Certainly, jurisdiction is not appropriate under Rule 9.030(a)(2)(A)(iv), the rule cited by Trust Care. Third, any deprivation of due process Trust Care suffered here was its own fault. Indeed, AHCA denied Trust Care s license application after an informal administrative hearing because it refused to provide information exculpating Mr. Marrero from personal responsibility with respect to All Med s termination from the Medicaid program and the subsequent revocation of All Med s license. Trust Care at 14-15 & 17-18. If Trust Care had provided the information requested, AHCA may have approved its application. At the very least, Trust Care would not have violated Section 408.815(1)(a) - the statute the Third District relied on when it found AHCA did not commit clear error or abuse its discretion... Trust Care at 17-18. CONCLUSION For the foregoing reasons, this Court lacks discretionary jurisdiction and should either deny or dismiss Trust Care s Notice to Invoke Discretionary Jurisdiction. 9
Respectfully submitted and served, Tracy Lee Cooper Board Certified Appellate Attorney Florida Bar No. 0879231 Chief Appellate Counsel Agency for Health Care Administration 2727 Mahan Drive, MS 3 Tallahassee, Florida 32308 (850) 412-3630; FAX (850) 921-0158 CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished to G. Richard Strafer, Esquire, at G. Richard Strafer, P.A., 201 South Biscayne Boulevard, Suite 1380, Miami, Florida 33131, and Alex Arteaga-Gomez, Esquire, at Scott A. Srebnick, P.A., 201 South Biscayne Boulevard, Suite 1380, Miami, Florida 33131, on this _11th_ day of March, 2011. Tracy Lee Cooper CERTIFICATE OF COMPLIANCE I CERTIFY that the foregoing Petitioner s Jurisdictional Brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). Tracy Lee Cooper Attorney for Respondent/Appellee 10