Physicians Health Care Pl.v.State

District Court of Appeal of Florida, First DistrictFeb 23, 1998
706 So. 2d 113 (Fla. Dist. Ct. App. 1998)

Case No. 97-2150.

Opinion filed February 23, 1998.

An appeal from an order of the Agency for Health Care Administration.

Michael J. Cherniga and Seann M. Frazier of Greenberg, Traurig, Hoffman, Lipoff, Rosen Quentel, P.A., Tallahassee, for Appellant/Petitioner.

Richard M. Ellis, Agency for Health Care Administration, Tallahassee, for Appellee/Respondent.

Stephen A. Ecenia and J. Stephen Menton of Rutledge, Ecenia, Underwood, Purnell Hoffman, P.A., Tallahassee, for Amicus Curiae.


ORDER DISMISSING APPEAL


This is an appeal from a final administrative order denying a petition to initiate rulemaking. The appellant, Physicians Health Care Plans, Inc., contends that section 409.9124, Florida Statutes (Supp. 1996) requires the Agency for Health Care Administration to adopt a rule defining the methodology for reimbursement of managed care plans. This argument was rejected by the agency but on January 2, 1998, approximately one week before the oral argument in this appeal, the agency initiated a proceeding under section 120.54(2), Florida Statutes (Supp. 1996), to develope a proposed rule on the same subject. Then on January 5, 1998, the agency sought to dismiss the appeal on the ground that it had been rendered moot by the pending rulemaking proceeding.

Section 409.9124(1), Florida Statutes (1996), provides:


(1) The agency shall develop and adopt by rule a methodology for reimbursing managed care plans.

We agree with appellant that section 409.9124 expressly requires the agency to "develop and adopt by rule a methodology for reimbursing managed care plans." The agency candidly acknowledges that it is not a coincidence that the proposed rule development was initiated shortly prior to the date of oral argument. Further, we understand appellant's complaint with the agency's delay in initiating the rulemaking required by section 409.9124. According to section 120.54(1)(b), Florida Statutes (Supp. 1996), the agency was required to draft and formally propose a rule within 180 days of the effective date of section 409.9124, or by December 30, 1996. Nevertheless, because the appellant's proposed rule, filed as a part of its petition below, can be considered by the agency in the newly instituted rule development proceeding, the agency's belated initiation of rulemaking grants the appellant all relief that would be presently available here.

Section 120.54(1)(b), Florida Statutes (Supp. 1996), provides as follows:


Whenever an act of the Legislature is enacted which requires implementation of the act by rules of an agency within the executive branch of state government, such rule shall be drafted and formally proposed as provided in this section within 180 days after the effective date of the act, unless the act provides otherwise.

Section 409.9124, Florida Statutes (Supp. 1996), was enacted by section 9 of chapter 96-199, Laws of Florida. Chapter 96-199 was effective on July 1, 1996. Ch. 96-199, Laws of Florida, § 45.

Accordingly, this appeal is dismissed as moot. The dismissal is without prejudice to the appellant's right to seek reinstatement of this appeal should the agency abandon the present rulemaking proceeding.

BOOTH, VAN NORTWICK and PADOVANO, JJ., CONCUR.