BEVERLY HEALTH AND REHABILITATIVE SERVICES, INC., D/B/A ADVANTAGE THERAPY AND NURSING CENTER, APPELLANT,
v.
AGENCY FOR HEALTH CARE ADMINISTRATION, APPELLEE
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Beverly Health appeals the dismissal of its petition challenging administrative rule 59A-4.128 governing nursing home ratings. The court affirmed the dismissal, finding that Beverly's challenge was not properly framed as a challenge to the validity of the rule itself under the applicable statute, but rather as a challenge to the rule's application or an unwritten modification thereof.
The petition did not constitute a proper challenge to the validity of rule 59A-4.128 under section 120.56(1). Beverly's petition challenged either an allegedly unwritten AHCA rule that modified 59A-4.128, or the rule as applied to its facilities, neither of which is a proper basis for challenging a rule's validity under the statute.
[1] A petition challenging the application of an administrative rule, rather than its validity, is not properly brought under a statute governing challenges to the validity o…
[2] A prior administrative determination of the validity of a proposed rule, from which no appeal was taken, may preclude a subsequent challenge to the adopted rule on the sa…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it is clear that appellant is not seeking to determine whether rule 59A-4.128 constitutes an invalid exercise of delegated legislative authority as contemplated by section 120.56(1)”
Establishes that Beverly's petition failed to meet the statutory requirement for challenging a rule's validity
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBeverly Health, a member of the Florida Health Care Association, received a conditional rating and conditional license for its Advantage Therapy and N…
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PER CURIAM.
Beverly Health and Rehabilitative Health Services, Inc., appeals a final order dismissing with prejudice its petition to determine the invalidity of rule 59A-4.128, Florida Administrative Code, adopted by appellee, Agency for Health Care Administration (AHCA). For the reasons explained below, we affirm.
In a prior proceeding, the Florida Health Care Association, of which appellant is a member, challenged proposed rule 59A-4.128, which pertains to the rating of nursing homes. In that proceeding, the hearing officer sustained the validity of the proposed rule and determined, among other things, that the proposed rule incorporated certain federal regulations pertaining to nursing homes. Florida Health Care Ass’n, Inc. v. Agency for Health Care Admin., 18 FALR 3458 (Fla. DOAH 1996).
No appeal was taken from that final order. After receiving a conditional rating and a conditional license with respect to its facility doing business as Advantage Therapy and Nursing Center, pursuant to section 120.56(1), Florida Statutes (1995), appellant filed the instant petition challenging rule 59A-4.128 as adopted and applied to appellant’s nursing homes. In its petition, appellant alleges that AHCA has neither incorporated the applicable federal regulations into rule 59A-4.128 nor applied the rule in a manner consistent with such federal regulations. On the face of the instant petition, however, it is clear that appellant is not seeking to determine whether rule 59A-4.128 constitutes an invalid exercise of delegated legislative authority as contemplated by section 120.56(1).
As we read appellant’s petition, it challenges an allegedly unwritten AHCA rule which modified rule 59A-4.128, or challenges rule 59A-4.128 as it is being applied by AHCA to appellant’s facilities, or both. The substance of the instant proceeding is not, however, a proper challenge to the validity of a rule under section 120.56(1).
Accordingly, we affirm the dismissal. Our affirmance, however, is without prejudice to appellant seeking appropriate relief in proceedings under sections 120.56(4) and 120.569, Florida Statutes (1995).
AFFIRMED.
ERVIN and VAN NORTWICK, JJ., concur. BENTON, J., concurs in result.