CASA FEBE RETIREMENT HOME, INC. v. AHCA

• Decision Date: 10 November 2004
• Docket Number: No. 2D04-156.,2D04-156.
• Citation: 892 So.2d 1103
• Parties: CASA FEBE RETIREMENT HOME, INC., d/b/a Home is Where the Heart Is, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
• Court: Florida District Court of Appeals

892 So.2d 1103

CASA FEBE RETIREMENT HOME, INC., d/b/a Home is Where the Heart Is, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.

No. 2D04-156.

District Court of Appeal of Florida, Second District.

November 10, 2004.

Colleen O'Rourke, Tampa, for Appellant.

Garnett W. Chisenhall, Tallahassee, for Appellee.

CASANUEVA, Judge.

Casa Febe Retirement Home, Inc., d/b/a Home is Where the Heart Is, appeals the determination of the administrative law judge (ALJ) that it was not entitled to an award of attorney's fees after it prevailed against an administrative complaint filed by the Agency for Health Care Administration (AHCA). Because the ALJ misapplied the law, we reverse.

BACKGROUND

A resident of Casa Febe was discharged from the hospital after treatment for several conditions, including a urinary tract infection, and was returned to the retirement home. The discharge instructions for the resident outlined the medications that the resident should take. One of these instructions was for a certain oral antibiotic for continuing treatment of the urinary tract infection. The packet sent home with the resident also contained prescriptions for all the needed medications except the prescription for the antibiotic to combat the urinary tract infection. A few days later the resident was rehospitalized for a recurrence of that infection.

An administrative investigation, a "survey," ensued. The surveyor reported that there was a prescription for the antibiotic in the resident's file, so he recommended the filing of an administrative complaint. AHCA filed the administrative complaint charging Casa Febe with a violation of Florida Administrative Code Rule 58A-5.0185(7)(f), which requires Casa Febe to "make every reasonable effort to ensure that prescriptions for residents who receive assistance with self-administration or medication administration are refilled in a timely manner." After holding an evidentiary hearing, the ALJ decided that Casa Febe was not guilty of the omission alleged in the complaint. The ALJ's conclusion was based partly on his finding of fact that the prescription never existed, so Casa Febe could not have failed to fill it. Furthermore, even if the prescription had existed, the failure to fill it could not be a violation of the rule because the rule only addressed the failure to refill an existing prescription.¹ Finally, the ALJ concluded that AHCA's case was based on two flawed interpretations of the rule: first, that the rule requires "filling" as well as "refilling"; second, that retirement homes must ensure that a physician actually write prescriptions for medications included in discharge instructions. The ALJ deemed such interpretations unpromulgated rules that AHCA could not rely upon in penal proceedings.

Because it prevailed in the administrative proceeding, Casa Febe requested an award of $10,889 for its attorney's fees and costs. See § 57.111, Fla. Stat. (2002). Following a hearing, the ALJ denied the request for fees and costs, finding that AHCA was substantially justified in initiating the underlying case. This conclusion was based partially on his finding that AHCA had a solid basis in fact for the position that it took at the outset, even though the fact it relied upon — the surveyor's claim that the prescription did exist in the resident's file — was later found not credible. In addition to finding that AHCA had a reasonable basis in fact, the ALJ found that AHCA had a "solid, although not necessarily legally correct, basis" for initiating the proceedings.

ANALYSIS

Casa Febe met all the prerequisites of section 57.111 (a small business with fewer than twenty-five employees and assets of less than two million dollars at the time of initiating the action) to entitle it to fees and costs as long as AHCA was not substantially justified in initiating the underlying case or special circumstances existed that would make the award unjust. The meaning of "substantially justified" is at the heart of this case.

In McDonald v. Schweiker, 726 F.2d 311 (7th Cir.1983), the court held that "`substantially justified' does not mean `nonfrivolous'.... It means that the government must have a solid though not necessarily correct basis in fact and law for the position that it took in this action." Id. at 316 (emphasis added). See also Dep't of Health & Rehab. Servs. v. S.G., 613 So.2d 1380 (Fla. 1st DCA 1993)

(adopting federal standard as expressed in McDonald); Fish v. Dep't of Health, Bd. of Dentistry, 825 So.2d 421 (Fla. 4th DCA 2002). We will address both prongs of the test, a basis in fact and a basis in law.

The record contains substantial, competent evidence for the ALJ's finding that AHCA had a substantial basis in fact to initiate these proceedings, despite the ALJ's rejection of the surveyor's testimony at the hearing. The First District held in Department of Health, Board of Physical Therapy Practice v. Cralle, 852 So.2d 930 (Fla. 1st DCA 2003), that an ALJ's determination that the licensee's employee was not credible when testifying about the licensee's alleged violations did not render the probable cause panel's decision to pursue an administrative complaint unreasonable or unjustified. This was so because there was no basis to doubt the complainant's written allegations of violation at the time the probable cause panel decided to initiate the proceedings. At the time AHCA decided to file the complaint against Casa Febe, its surveyor had found an unfilled prescription for needed medication in the resident's file. Because one of Casa Febe's duties was to aid its residents in taking their medications, this constituted a solid basis in fact to proceed. Although the surveyor was subsequently found not credible, that fact alone is not...