STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM HUANG, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2455RX

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 6 and 12, 1982, in the Oakland Building, Tallahassee, Florida. The issue for determination at the hearing was whether respondent's Rules 21- 12.02(2)(b)1, 21-12.02(2)(b)2, 21-12.05 and 21-12.06, Florida Administrative Code, as well as an unpromulgated affidavit form, constitute invalid exercises of delegated legislative authority.

APPEARANCES

For Petitioner: R. Jeremy Solomon

Booth & Conner

Building A, 325 John Knox Road Tallahassee, Florida 32303

For Respondent: Salvatore Carpino

Tina Hipple and Drucilla Bell

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

INTRODUCTION

By "petition for determination of the invalidity of existing rules" filed pursuant to Section 120.56, Florida Statutes, petitioner challenges the respondent's Rules 21-12.02, 21-12.05, and 21-12.06, Florida Administrative Code, as well as an affidavit form. These rules purport to implement Chapter 468, Part VIII, Florida Statutes (1980), as amended by Chapter 81-227, Laws of Florida, relating to the practice of acupuncture.

In support of its position of invalidity, petitioner offered the testimony of petitioner Huang; Dorothy Faircloth, the Executive Director of the Department of Professional Regulation's (DPR) Boards of Medical, osteopathic and Naturopathic Examiners; Edward Ashley, the Administrator of DPR's Office of Investigative Services; Ann Mayne, the Executive Secretary to DPR's Director of the Division of Professions; Harriet R. Williams, an Examination Development

Specialist and the lead developer for the acupuncture examination; George S. Palmer, the former Executive Director of the Board of Medical Examiners; Leonard Inge, the Deputy Director of the Division of Professions; and Mary Alice Palmer, the Administrator for DPR's Office of Examination Services. Petitioner's Exhibits 1 through 18 were received into evidence.

Subsequent to the hearing, both parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not incorporated into this Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting findings of fact as opposed to conclusions of law.

FINDINGS OF FACT

1. Petitioner William Huang received training in acupuncture at the Chinese Acupuncture Science Research Foundation in Taiwan, China, and has practiced acupuncture for ten years, seven and a half of which have been in Florida. In August of 1981, petitioner submitted to the Department of Professional Regulation his Application for Acupuncture Examination. The Application form requests the applicant to check one of two alternative methods of qualifying for the examination: by education or by Florida apprenticeship or experience. Petitioner checked the box for "by Florida apprenticeship or experience." As of the dates of the hearing in this proceeding, petitioner had not been notified by the DPR as to whether or not he had been approved as qualified to take the examination. The examination is tentatively scheduled to occur on December 18 and 19, 1981.

   
   

2. It was the opinion of Mr. Huang that only ten percent of the practicing acupuncturists today utilize the traditional Oriental method of diagnosis. One of the challenged rules, Rule 21-12.06(4)(a), assigns a thirty-five percent weight to the diagnostic techniques and procedures portion of the practical examination.

   
   

3. Prior to 1980, there were no statutes or promulgated rules specifically relating to or governing the practice of acupuncture in Florida. While a rule had never been promulgated with respect to the field of acupuncture, the Florida Board of Medical Examiners had taken the official position that acupuncture is the practice of medicine. Prior to October of 1974, it was this Board's position that the performance of acupuncture should only be done by licensed medical doctors and doctors of osteopathy. Believing that legislation was imminent to allow nonlicensed persons skilled in acupuncture to perform under the direct and responsible supervision of licensed M.D.'s and D.O.'s, the Board of Medical Examiners altered its policy to reflect the same. By memorandum dated October 8,1 974, the Board issued its "Statement on Acupuncture" to be as follows:

   
   

   . . . to allow skilled unlicensed persons to perform acupuncture provided this is done under the responsible and direct supervision of licensed M.D.'s. This means that the

   non-licensed person who performs acupuncture is employed in the office of the licensed

   M.D. and is working in the office of the licensed M.D. and the licensed M.D. should be on the premises when acupuncture is performed. This is analogous to the

   Physician's Assistant who only functions under the responsible supervision of his employing physician. This does not mean that a licensed M.D. should put nonlicensed personnel out in satellite offices away from his main office performing acupuncture. A licensed M.D. should be in each office in which acupuncture is being performed. It must be remembered that the licensed M.D. is responsible for the acts and performances of any unlicensed persons within his office and in his employ regardless of the tasks or procedures performed by the unlicensed person and; therefore, this Board holds the licensed

   M.D. responsible for seeing that the intent of this ruling on the performance of acupuncture is carried out. . . .

   
   

4. Effective October 1, 1980, the practice of acupuncture became specifically regulated by the enactment of Chapter 80-375, Laws of Florida.

   This was codified as Chapter 468, Part VIII, Florida Statutes (1980), and was amended by Chapter 81-227, Laws of Florida, effective July 2, 1981. In order to become certified to practice acupuncture under the new statutes, the applicant must furnish satisfactory evidence to the DPR that he has either:

   
   

   1. Completed a two-year program of education in acupuncture in a school or college approved by the Department; or

   2. Completed two years in an apprenticeship program . . .; provided that prior to July 1, 1981, a full-time and continuous practice of acupuncture under Chapters 458 or 459 may be substituted on an equivalent basis for all or part of the

      two-year apprenticeship program approved by the Department.

      
      

      and he must past an examination administered by the Department. Section 468.323(2), Laws of Florida.

      
      

5. There being no Board of Acupuncturists established yet, the administration and implementation of Chapter 468 relating to acupuncture is presently being performed by the respondent's Division of Professions. Currently, that office conducts an initial review of the applications to qualify for the acupuncture examination and then the respondent's Office of Investigative Services verifies the information submitted on the application regarding the supervision of the applicant by a licensed physician and the duration thereof. This function was performed by the Office of Investigative Services by requesting the physician named on the application to sign a sworn affidavit that he or she holds a current active Florida license and that

   
   

   From 19 through 1981, the doctor personally knows that the applicant rendered acupuncture treatments

   to patients and all of these acupuncture treatments were administered under the direct supervision and control of the above-named licensed doctor.

   
   

   Noting that there had been confusion on the part of supervising physicians concerning the term "direct supervision," the investigators performing the function of obtaining affidavits and verifying signatures were instructed by memorandum dated September 24, 1981, as follows:

   
   

   It is necessary that the supervising physician for the purpose of clarification and understanding be informed that as a minimum, direct supervision means that the non-licensed person who performs acupuncture is employed by the licensed M.D. and is working in the office of the licensed M.D. and the licensed M.D. should be on the premises when acupuncture is performed. A licensed M.D. should be in each office in which acupuncture is performed.

   
   

6. For the December 1981 acupuncture examination, the respondent received approximately 210 applications. About 125 applicants were determined to have not met the qualifications. At the time of review of these applicants and as of the time of the hearing in this matter, DPR had not yet approved any schools or colleges with programs of education in acupuncture, nor had the Department made a determination that any specific school or college met the criteria for approval of schools listed in its Rule 21-12.08, Florida Administrative Code.

   Of the some 41 applicants who attempted to qualify by two-years of experience under the supervision of a licensed physician, some 22 applicants have been approved as qualified to take the examination. Those were approved by the respondent on the basis of a completed, verified application form and the affidavit from the licensed Florida physician.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner has challenged Rules 21-12.02(2)(b)1, a portion of 21- 12.02(2)(b)2, 21-12.05, 21-12.06, Florida Administrative Code, and the affidavit required from supervising physicians as being unlawful exercises of delegated legislative authority. As a practicing acupuncturist for some ten years and as a current applicant for certification under the new laws governing and regulating acupuncture, petitioner has adequately demonstrated that he is substantially affected by the rules regulating that profession so as to challenge their validity pursuant to Florida Statutes, Section 120.56. Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981).

   
   

8. Rule 21-12.02(2) sets forth the qualifications an applicant must demonstrate to obtain DPR approval to take the acupuncture certification examination. Among the alternative qualifications set forth are the two being challenged herein. Rule 21-12.02(2)(b)1 requires the applicant to demonstrate that he or she has "completed two (2) years of education in a school or college approved by the Department as set forth in Rule 21-12.08." That rule, which is not being challenged in this proceeding, sets forth the criteria in terms of hours and curriculum for the approval of schools or colleges which offer a two year program of education in acupuncture.

9. Petitioner contends that Rule 21-12.02(2)(b)1 is invalid since no schools have yet been approved by the Respondent and no effort has been made by the Department to determine whether, in fact, any acupuncture school as described in Rule 21-12.08 exists. It is argued that the intent of the statute, Section 468.323, Florida Statutes, is to provide a method by which a candidate can use formal education to qualify to take the examination, and that the challenged rule renders this intent inoperative.

   
   

10. The petitioner's attack on Rule 21-12.02(2)(b)1 must fail for two reasons. First, the fact that no prior determination was made by the Department as to whether any school could meet the criteria for approval as set forth in Rule 21-12.08 is grounds only for a challenge to the validity of Rule 21-12.08. That rule has not been challenged in this proceeding. Second, the challenged Rule 21.12.02(2)(b)1 contains the precise statutory requirement found in Section 468.323(2)(b)1, Florida Statutes. While it may be said that the language of the challenged rule is redundant, or perhaps even meaningless since it simply repeats the statutory mandate for qualification for certification, it cannot be concluded that the rule constitutes an invalid exercise of delegated legislative authority. The petitioner's complaint with respect to the Department's failure to address the situation concerning the approval of schools, while legitimate, is more properly addressed by either a challenge to agency action taken under the statute or the rule with the same requirement pursuant to Section 120.57, Florida Statutes, to petition for a declaratory statement from the agency pursuant to Section 120.565, Florida Statutes.

    
    

11. This same rationale applies to petitioner's challenge to Rule 21.12.02(2)(b)2, which contains an alternative means of qualifying for certification as an acupuncturist. That rule, as does Section 468.323(2)(b)2, Florida Statutes, i almost verbatim language, provides that an applicant may qualify by demonstrating that he has completed two years in an apprenticeship program

    
    

    provided that prior to July 1, 1982, full- time and continuous practice of acupuncture under Chapters 458 or 459, Florida Statutes, may be substituted on an equivalent basis for all or part of the two (2) year apprenticeship program approved by the Department.

    
    

    Again, language in a rule which is identical to the statutory language, while it may deserve the criticism of redundancy, is not grounds for the rule's invalidity. Petitioner's grounds for challenging this portion of Rule 21- 12.02(2)(b) are more properly directed to a challenge of the statute itself, or to agency action taken pursuant thereto.

    
    

12. Challenged Rule 21-12.05, Florida Administrative Code, states that:

    
    

    Satisfactory proof of full-time and continuous practice of acupuncture under Chapters 458 or 459, Florida Statutes, prior to July 1, 1981, includes, but is not limited to, an affidavit, on a form supplied

    by the Department, from applicant's qualified supervisor, as set forth in Rule 21.12.01(2)(b)2, setting forth the length and scope of the acupuncture practice of the applicant.

    
    

    This rule simply requires an affidavit from the applicant's supervisor as to the length and scope of the applicant's prior acupuncture practice. Petitioner's primary complaint against this rule, as it was against Rule 21-12.02(2)(b) is that the term "practice of acupuncture" is vague and not elsewhere defined. It is concluded that this ground for invalidity is not sufficient. The definitional section of Chapter 21-12 defines the terms "acupuncture" and "full- time and continuous practice of acupuncture." Rule 21-12.01, Florida Administrative Code. Given these definitions, as well as the policy statement of the Board of Medical Examiners referred to in the Findings of Fact portion of this Order, it cannot be concluded that one called upon to comply with or enforce this rule would have reasonable doubts as to the terminology utilized therein. The term "acupuncture" is also defined in Section 468.322(1), Florida Statutes, and, as pointed out above, the term "full-time and continuous practice of acupuncture under Chapters 458 or 459" is found in Section 468.323(2)(b)(2), Florida Statutes. The requirement of an affidavit from a qualified supervisor is not beyond the authority delegated to the respondent by the legislature.

    
    

13. The final promulgated rule challenged by petitioner in this proceeding is Rule 21.12.06, specifically subsection 4(a) which assigns a thirty-five percent weight to the portion of the practical examination on diagnostic techniques and procedures. Petitioner has failed to sustain his burden of proof as to the invalidity of this portion of the rule. Other than his own unsupported opinion as to the prevailing methodology of acupuncturists practicing today, petitioner offered no evidence that such an examination requirement was unreasonable, unfair, arbitrary or capricious. Petitioner's complaint of this Rule's absence of guidelines as to the selection of examiners, source materials for the examination and sufficient notification from the respondent of approval to take the examination are likewise without merit. The Department of Professional Regulation has general rules pertaining to examinations, Chapter 21.11, Florida Administrative Code, and if more specific and detailed rules or information are desired, the provisions of Sections 120.54(5), and/or 120.565, Florida Statutes, may be utilized.

    
    

14. Finally, petitioner has failed to demonstrate that the challenged affidavit constitutes a "rule" within the meaning and promulgation requirements of Chapter 120, Florida Statutes. As noted above, the affidavit is specifically referred to in Rule 21-12.05, Florida Administrative Code, and the affidavit itself does not require any information not specifically required by statute or by an existing rule.

RECOMMENDATION

Based on the findings of fact and conclusions of law recited herein, it is ORDERED that the petitioner has failed to demonstrate that Rules 21-12.02(2)(b), 21-12.05 or 21.12.06, Florida Administrative Code, constitute the invalid exercises of delegated authority or that the challenged affidavit constitutes a "rule" within the meaning of the Administrative Procedure Act. Accordingly, the petition seeking an administrative determination of those rules and affidavit is DISMISSED.

DONE AND ENTERED this 11th day of December 1981, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December 1981.

COPIES FURNISHED:

R. Jeremy Solomon, Esquire Booth & Conner

Building A

325 John Knox Road Tallahassee, Florida 32303

Salvatore Carpino, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel Shorstein, Secretary Department of Professional Regulation Old Courthouse Squire Building

130 North Monroe Street Tallahassee, Florida 32301

Liz Cloud, Bureau Chief Administrative Code Section Department of State

1802 The Capitol

Tallahassee, Florida 32301

Michael A. Glean Box 3666

St. Augustine, Florida 32084 and

Box 28306

Atlanta, Georgia 30328

Docket for Case No: 81-002455RX

Orders for Case No: 81-002455RX