STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MS. SKIPPY KING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2296

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 27 April, 1979 at Tampa, Florida.

APPEARANCES

For Petitioner: Jack F. White, Esquire

416-1/2 Drew Street Clearwater, Florida 33515

For Respondent: Amelia M. Park, Esquire

HRS District IV Counsel 4000 West Buffalo Avenue Tampa, Florida 33614

By letter dated November 20, 1978, Ms. Skippy King, Petitioner, by and through her attorney requested a hearing on Respondent's denial of her application for a license to practice midwifery. Grounds for denial of the application was the county health officer's refusal to furnish his written recommendation.

At the hearing two witnesses, including the Petitioner, were called by Petitioner and two exhibits were admitted into evidence. Upon completion of Petitioner's case, Respondent moved for a directed verdict and ruling on this motion was reserved. Respondent rested without presenting any evidence. The motion for directed verdict against Petitioner is now denied.

FINDINGS OF FACT

1. Ms. Skippy King applied for licensure as a midwife pursuant to Chapter 485, Florida Statutes. In her application (Exhibit 1) she provided all information required by Rule 10D-36.22,-- Florida Administrative Code, except the recommendation of the county health officer, Dr. John S. Neill. Included in her application was the affidavit of having attended, under the supervision of a licensed and registered physician, the requisite number of births within a one-

   year period, and recommendations by three physicians attesting to her qualifications and competency for licensure.

   
   

2. One of the attesting physicians, a practicing obstetrician and gynecologist, testified to her competence and experience for licensure.

   
   

3. After making application for licensure, Ms. King was visited by the head nurse for Hillsborough County Health Department who inspected the equipment used by Petitioner. When asked by this nurse how she sterilized the equipment on home deliveries, Petitioner showed her the autoclave used. No comment was made by the nurse or anyone else to Petitioner that the equipment used was inadequate or unsanitary. Nevertheless, the denial of licensure by Respondent was predicated solely on the refusal of Dr. Neill to furnish his written recommendation and his statement as reason there for that there "is not [sic] evidence to establish `the equipment and settings to be used in practice are safe and sanitary.'"

   
   

4. Petitioner visited the County Medical Officer on at least two occasions, once in company with Dr. Jacobs, one of the physicians attesting to her competency in the application. At this visit Dr. Neill told them not to talk about midwifery. At the second meeting with Dr. Neill, Petitioner testified Dr. Neill stated he had spent twenty years getting women back in hospitals and that he didn't believe in home births. No other reason was given to Petitioner for his refusal to recommend her for licensure.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 485.031, Florida Statutes, provides the following qualifications for licensure to practice midwifery.

   
   

   1. Be not less than 18 years of age.

   2. Be able to read the manual for midwives intelligently and to fill out the birth certifi- cates legibly; provided that in case of persons who have extended experience or in other exceptional circumstances, this requirement may

      be waived by the Department of Health and Rehabili- tative Services.

   3. Be clean and constantly show evidence in behavior and in home habits of cleanliness.

      (4)(a) Possess a diploma from a school for midwives recognized by the department; or

      1. Have attended under the supervision of

         a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during lying-in-period of at least 10 days each; and shall possess a written statement from said physician that she has attended such cases in said 15 cases, with the date engaged and address of each; and that she is reasonably skilled and competent and establish the fact that she is reasonably skilled and competent to the satis- faction of the department; or

      2. Present other evidence satisfactory to

      the department showing her qualifications, and

      (5) Present evidence satisfactory to the department of good moral character in such form as the department by rule and regulation may prescribe

      
      

6. Section 485.051 authorizes the Department of Health and Rehabilitative Services to establish rules for regulating the practice of midwifery. These rules are contained in Chapter 10D-36, Florida Administrative Code, and Rule 10D-36.22, Florida Administrative Code, provides:

   
   

   1. Application for license shall be made on forms provided by the Department of Health and Rehabilitative Services and shall be accompanied by

      1. Evidence of having attended within a one

         1. year period under the supervision of a duly licensed and registered physician not less than fifteen (15) cases of labor including the care

            of not less than fifteen (15) mothers and newborn infants during the lying-in-period. Such evi- dence shall include:

            1. A statement written by the attending physician in each case documenting the level of skill and competence exercised.

            2. A list of the patient's name, address and delivery date for each of the documented cases.

      2. Letters of recommendation for licensure

         by at least two registered practicing physicians, one of whom may be the county medical director.

      3. Evidence of a physical examination by a duly licensed registered physician to be entered on a standard physical examination form. Such examination form shall be completed and signed by said physician indicating physical and mental fitness of the applicant to practice midwifery.

      4. A written recommendation for licensure by the county medical director attesting to the applicant's ability to complete standard birth certificate forms and that the applicant's behavior and habits are consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary.

      1. The applicant must prove reasonable skill and competence in maternity and infant care relating to the practice of midwifery by success- fully completing an examination prepared by the Nursing Program Supervisor.

      2. Only after applicant has submitted above stated documentation to the Department of Health and Rehabilitative Services, and examinations and observations show that applicant possesses qualifications and fitness for practice of lay midwifery, shall the Department of Health and Rehabilitative Services issue a license to

      practice lay midwifery; all licenses shall be dated, numbered and contain name and residence of person to whom issued.

      
      

7. Here the sole reason given for denial of Petitioner's application was her failure to submit a written recommendation by the county medical director. While the rule requiring this recommendation is valid on its face, it is obviously valid only when there is a statutory basis for the medical director's refusal to provide such a recommendation. Petitioner here testified that during her meetings with the county health officer he said he was opposed to the practice of midwifery. While this testimony constitutes hearsay and, by itself, does not constitute competent evidence to support a finding that Dr. Neill wants no midwives licensed, it is corroboration of the testimony of Petitioner that no one ever told her that her competence or equipment was not satisfactory, or wherein either was unsatisfactory. This leads to the inference that the refusal of the county health official to provide the required recommendation was arbitrary. A rule cannot validly authorize arbitrary and capricious action on the part of the county health officer. Raising the implication of an arbitrary and capricious denial of the application for licensure, by the arbitrary and capricious refusal to provide the required recommendation, requires the Respondent to present some evidence that the denial of this application was predicated upon some basis other than the county health officer's belief that all babies should be born in the hospital and the licensing of midwives is inimical to this goal.

   
   

8. While this concept that births should take place only in hospitals may be perfectly valid from a medical standpoint, such argument must be made to the legislature rather than implemented contrary to the existing provisions of the Statutes.

   
   

9. Nowhere in Chapter 485 is there a requirement that the county medical director approve all (or any) applications for licensure of midwives. The rule with which Petitioner is not in compliance must be read to require the issuance of a recommendation when the applicant complies with the requirements for licensure. A different interpretation of the rule could raise constitutional problems for the rule. One rule of statutory construction is that in interpreting statutes (and rules) the courts have a judicial obligation to sustain legislative enactments when possible. North Port Bank v. State Department of Revenue, 313 So.2d 683 (Fla. 1975). Thus when an interpretation of a statute, or rule, is possible which avoids placing the rule in constitutional jeopardy, that interpretation should be followed. Accordingly, the rule requiring the county medical director's recommendation must be read to also require that recommendation be made for every applicant who complies with the requirements for training, experience, health and cleanliness. Here the Petitioner's evidence clearly indicates eligibility for licensure as a midwife and no evidence was submitted to rebut this prima facie case.

   
   

10. From the foregoing it is concluded that Petitioner meets the qualifications for licensure as a midwife and the requirement contained in Rule 10D-36.22(2)(d), Florida Administrative Code, is invalid when refusal to give the required recommendation is arbitrary and capricious. It is therefore

RECOMMENDED that Petitioner be issued a license as a midwife in accordance with Chapter 485, Florida Statutes.

Entered this 8th day of May, 1979.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Amelia M. Park, Esquire HRS District IV Counsel 4000 W. Buffalo Avenue Tampa, Florida 33614

Jack F. White, Esquire 416-1/2 Drew Street

Clearwater, Florida 33515

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

MS. SKIPPY KING,

Petitioner,

vs. DOAH CASE NO. 78-2296

STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

Upon consideration of the Recommended Order issued by K. N. Ayers of the Division of Administrative Hearings (DOAH) in this cause on May 8, 1979, and written exceptions timely submitted, and upon review of the complete record, the Department of Health and Rehabilitative Services (HRS) hereby finds as follows:

FINDINGS OF FACT

1. HRS determines that certain findings of fact require rejection or modification in that they are not based upon competent substantial evidence. As demonstrated herein, the hearing officer's findings of fact are clearly erroneous and reflect a misconception of the legal effect of the evidence, Borovina v. Florida Construction Industry Licensing Board, 369 So.2d 1038 (Fla. 4th DCA 1979).

   
   

2. Hearing Officer's Finding #1: "One of the attesting physicians, a practicing obstetrician and gynecologist, testified to her competence and experience for licensure. (Page 2 of Recommended Order.)

   
   

3. HRS' Finding: Dr. Quentin DeHaan, the only physician who testified, offered no testimony as to Petitioner's competence and experience because the hearing officer specifically determined that "there is nobody questioning her qualifications as I understand it, or expertise." (T10).

   
   

4. Hearing Officer's Finding #2: "Petitioner visited the County Medical Officer on at least two occasions, once in company with Dr. Jacobs, one of the physicians attesting to her competency in the application." (Page 3 of Recommended Order.)

   
   

5. HRS' Finding: Petitioner testified she saw Dr. Neill on only one occasion; and Dr. Jacobs was not identified as the same Dr. Jacobs who attested to Petitioner's competence in her application. (T19).

   
   

6. Hearing Officer's Finding 3: "At the second meeting with Dr. Neill, Petitioner testified Dr. Neill stated he had spent twenty years getting women back in hospitals and that he didn't believe in home births." (Page 3 of Recommended Order.)

   
   

7. HRS' Finding: Petitioner stated that she had heard Dr. Neill make this statement on television and it was admitted over the objection of HRS. (T19). This testimony constitutes uncorroborated hearsay evidence incapable of supporting a finding of fact. 120.58(1)(a), F.S.

   
   

8. Consistent with the above, the findings of fact governing this proceeding are set out below.

   
   

9. Ms. Skippy King applied for licensure as midwife pursuant to Chapter 485, F.S. In her application (Exhibit 2) she provided all information required by Rule 10D-36.22, F.A.C., except the recommendation of the County Health Officer, Dr. John S. Neill. Included in her application was the affidavit of having attended, under the supervision of a licensed and registered physician, the requisite number of births within a one-year period, and recommendations by three physicians attesting to her qualifications and competency for licensure.

   
   

10. Dr. DeHaan testified that he had known Petitioner since 1972, that he had observed her in home deliveries and he had sent a letter to the County recommending that she be certified.

    
    

11. Petitioner testified that she believes she has met all qualifications to be a licensed midwife. She had a visit from Martha Long, head nurse of the Hillsborough Health Department, after she had submitted her application to the Department and before she received the letter of denial. At that visit, Mrs. Long asked a number of questions about her equipment and procedures but made no comments, either positive or negative, regarding the equipment. Petitioner testified that she has no knowledge as to why Dr. Neill refused to furnish his

    written recommendation. Neither she nor her attorney made any attempt to depose Dr. Neill or call him as a witness for the administrative hearing.

    
    

    CONCLUSIONS OF LAW

    
    

12. The hearing officer's conclusions of law are premised upon his view that HRS bears the burden of proof in this proceeding. This is not so. The hearing officer erroneously determined that Petitioner's hearsay testimony that the County Health Officer expressed opposition to the practice of midwifery is corroborated by her testimony that she was never told that her competence or equipment was not satisfactory. There is no relationship between Dr. Neill's hearsay statement as to midwifery and Petitioner's failure to obtain information that her competence or equipment is not satisfactory. In order for one piece of evidence to corroborate another, there must be some relationship between the two pieces of evidence. In regard to Dr. Neill's refusal to submit a written recommendation, Petitioner did not present any direct and valid evidence to challenge such refusal or to establish that it occured. The type of hearsay evidence demonstrated above is insufficient to support a finding of fact.

    
    

13. Moreover, the hearing officer's conclusions of law establish that any claim of arbitrariness is premised exclusively upon inference. Petitioner testified that Mrs. Long visited her office after she had filed her application and before Dr. Neill made his determination. Mrs. Long examined Petitioner's equipment and asked questions; she made no comment regarding the equipment. If inferences are to be the basis of a conclusion of law notwithstanding Petitioner's burden to establish entitlement to licensure by a preponderance of the evidence, a more supportable inference may be made: That Mrs. Long inspected the equipment at the request of her supervisor, Dr. Neill, reported back to him and he made his decision based upon her report. Petitioner testified the only reason she knew for the refusal of the license was contained in the letter from HRS (T12-13).

    
    

14. The hearing officer's misapplication of burden of proof requirements is further demonstrated by his conclusion of law that the raising by inference of "the implication of an arbitrary and capricious denial of the application for licensure . . . requires the Respondent to present some evidence that the denial of this application was predicated upon some basis other than the County Health Officer's belief that all babies should be born in the hospital and the licensing of midwives is inimical to this goal." (Page 5 of Recommended Order.) It is clear HRS has given a reason for the denial of this license and, as previously demonstrated, the County Health Officer's statements constitute the type of hearsay evidence upon which a finding of fact cannot be based. Once HRS provided its reason for the denial, Petitioner assumed the burden of overcoming this reason by a preponderance of the evidence to the effect that her equipment was satisfactory and therefore the recommendation was incorrectly withheld. It is clear that Petitioner has not sustained her burden and, therefore, the burden did not shift to HRS. Petitioner's evidence consisted entirely of her application with required attachments except for the recommendation by the County Health Officer. She presented no evidence of her ability to complete standard birth certificate forms, that her behavior and habits are consistent with safe hygiene practices and that her equipment and settings to be used in practice are safe and sanitary. It is not HRS' burden to prove the contrary prior to the Petitioner's compliance with her burden of proof requirement that her entitlement to licensure is supported by a preponderance of the evidence. Rule 10D-36.22, F.A.C., requires certain conditions precedent to licensure and the record is devoid of any evidence on the part of Petitioner demonstrating compliance with all conditions precedent set out therein. 1/

15. The hearing officer's conclusion of law that Rule 10D- 36.22(2)(d), F.A.C., is invalid as applied in this proceeding must be reversed because a DOAH hearing officer is not empowered or authorized to invalidate a rule on its face or as applied in a s120.57(1) proceeding. Florida Gulf Health Systems Agency, Inc. v. Dep't of Health & Rehabilitative Services, Issue 31, F.L.W., August 4, 1978. As to the stare decisis effect of agency final orders, see Dep't of Health & Rehabilitative Services v. Barr, 353 So.2d 503 (Fla. 1st DCA 1978).

WHEREFORE, for the reasons stated above, Petitioner has failed to meet her burden of proof. This failure compels the sustaining of the Department's determination and reversal of the hearing officer's Recommended Order.

Petitioner's application for a lay midwife license is hereby DENIED. DONE and ORDERED this 13th day of June, 1979.

DAVID H. PINGREE, Secretary Department of Health and Rehabilitative Services

ENDNOTE

1/ The Department's policy considerations manifested by Rule 10- 36.22 are uniquely within "its putative expertise and specialized experience," McDonald v. Dep't of Banking & Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977); to this end, the Department's position is infused by such considerations which are a primary factor in reversing the hearing officer. Koltay v. Div. of General Regulation,

So.2d (Fla. 2d DCA, Case No. 78-556, opinion issued May 18, 1979).

Copies furnished to:

JACK F. WHITE, Esquire 416-1/2 Drew Street

Clearwater, Florida 33515

K. N. AYERS, Hearing Officer Division of Administrative Hearings Department of Administration

530 Carlton Building Tallahassee, Florida 32304

AMELIA PARK, Esquire District VI Counsel Department of HRS

W.T. Edwards Facility 4000 W. Buffalo Avenue Tampa, Florida 33614

Docket for Case No: 78-002296

Orders for Case No: 78-002296