Judges: CHARLES C. ADAMS
Agency: Agency for Health Care Administration
Latest Update: May 07, 1982
Summary: The matters presented by this hearing concern challenges pursuant to Section 120.56, Florida Statutes, to the promulgated Rule 10D-48.27(1) and (2), Florida Administrative Code, and to a memorandum dated October 16, 1981, issued by Respondent. The challenge to Rule 100-48.27(1) and (2), Florida Administrative Code, is premised upon the belief that the rule is in excess of statutory authority and is arbitrary and capricious and thereby an invalid exercise of legislative authority. The challenge t
Summary: The matters presented by this hearing concern challenges pursuant to Section 120.56, Florida Statutes, to the promulgated Rule 10D-48.27(1) and (2), Florida Administrative Code, and to a memorandum dated October 16, 1981, issued by Respondent. The challenge to Rule 100-48.27(1) and (2), Florida Administrative Code, is premised upon the belief that the rule is in excess of statutory authority and is arbitrary and capricious and thereby an invalid exercise of legislative authority. The challenge to the October 16, 1981, memorandum is based upon the assertion that the memorandum is an illicit unpromulgated rule, and consequently an invalid exercise of legislative authority.Challenged rule and memo are not invalid exercises of delegated legislative authority, except part of memo concerning Stage II trainees & solicitation.
More
vs. ) CASE NO. 82-777RX
Respondent. )
On April 16, 1982, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing took place in a hearing room provided by the Division of Administrative Hearings, at 2009 Apalachee Parkway, Tallahassee, Florida. 1/
For Petitioners: George L. Waas, Esquire
The matters presented by this hearing concern challenges pursuant to Section 120.56, Florida Statutes, to the promulgated Rule 10D-48.27(1) and (2), Florida Administrative Code, and to a memorandum dated October 16, 1981, issued by Respondent.
The challenge to Rule 100-48.27(1) and (2), Florida Administrative Code, is premised upon the belief that the rule is in excess of statutory authority and is arbitrary and capricious and thereby an invalid exercise of legislative authority.
The challenge to the October 16, 1981, memorandum is based upon the assertion that the memorandum is an illicit unpromulgated rule, and consequently an invalid exercise of legislative authority.
This case is presented for consideration based upon the Petition for Determination of the Invalidity of Rule 100-48.27(1) and (2), Florida Administrative Code, and the October 16, 1981, memorandum. This Petition was received by the Division of Administrative Hearings and assigned for consideration to the present Hearing Officer by order of the Acting Director of the Division of Administrative Hearings, dated March 23, 1982.
An amendment was allowed on April 7, 1982, which brought about the deletion of George Selis and Harold A. Peck, Jr., as party Petitioners and added the party Petitioner Irene Selis.
On April 9, 1982, a Prehearing Conference was held in which oral argument was allowed on Petitioners' Motion to Compel Answers to Interrogatories and Request for Official Recognition and on Respondent's Motion to Dismiss, Motion for More Definite Statement, Motion to Strike the Amended Petition and Motion to Expedite Discovery. An order was entered on April 12, 1982, which took Official Recognition of Items 1 through 6 in the request and reserved ruling on Items 7 through 9. Respondent's Motion to Dismiss, Motion to Strike and Motion for More Definite Statement were denied and the Amended Petition, as acknowledged before, was allowed. Petitioner's Motion to Compel Answers to Interrogatories related to the first set was denied and was denied concerning the second set with the exception of number 5 which was granted. Respondent's Motion to Expedite Compliance with the Amended First Request for Production was granted.
At the hearing on April 16, 1982, Item 6 of the Petitioners' Request for Official Recognition was substituted for by stipulation of counsel and Respondent's substitute item was accepted. Items 7 through 9 of the Request for Official Recognition were admitted without objection.
In the course of the final hearing, Petitioner presented Jay Alan Bertoch, President of the Florida Hearing Aid Society; George C. Martinez, member of the Board of Directors of the Society and Barbara Stanley, member of the Board of Directors of the Society. Martinez and Stanley also appeared in their individual capacities as registrants who employ and supervise trainees. Benjamin T. Wrubel and Howard Griesdorf, Stage II trainees in hearing aid programs in Florida under the supervision of Irene Selis, a named Petitioner, gave testimony.
Respondent presented as a witness, Ralph Gray, Program Administrator, Hearing Aid Licensing, State of Florida, Department of Health and Rehabilitative Services.
Substantive Facts
Petitioner, Florida Hearing Aid Society, Inc., is a nonprofit corporation duly registered in Florida, composed of approximately 270 of the 435 licensed and regulated fitters and sellers of hearing aids. In addition, there are trainees who are seeking licensure as fitters and sellers and manufacturers of hearing aids who are members of the Society. The licensees/registrants who are members of the Society are authorized to employ and supervise trainees in keeping with the provisions of Chapter 468, Florida Statutes, and Rule 10D- 48.27(1) and (.2), Florida Administrative Code.
Trainees who are supervised by Society members and other registrants are required to serve a six-month apprenticeship which is divided into three stages: Stage I is a one month training period; State II is a two month training period and Stage III is a three month training period. Completion of this apprenticeship is necessary before the apprentice is eligible to become a registrant.
The purposes of the Society, as set forth in its Articles of Incorporation, are as follows:
To promote good will and cooperation among the hearing aid dealers in the State of Florida.
To promote the welfare, in so far [sic] as hearing is concerned, of the
hard-of-hearing public.
To improve the professional standards of the hearing aid dealers of the State of Florida, and to inculcate among the members ethical principles that will lend dignity to the profession and insure [sic] continued public confidence in the profession.
To promulgate among the general public knowledge and understanding as to the use and and value of instruments for the aid to hearing.
To improve methods of dispensing, fitting and using hearing aids and to improve such aids.
To foster and encourage the development of a closer relationship between the members of the general public, hearing aid dealers in the State of Florida, and the medical profession and others working and allied to the field of audiology; and especially by the coordination of professional and lay efforts, services and assistance.
To foster the trade, profession and interest of all hearing aid dealers in the State of Florida.
To collect and disseminate information of value to members and to the general public.
To appear for and on behalf of the members before legislative committees, government bureaus, and other bodies with regard to matters effecting [sic] the heading aid dealers of the State of Florida.
To conduct these activities and achieve these objectives without pecuniary profit.
Do everything and anything reasonably necessary, suitable, proper, convenient or incidental to the aforesaid purposes or which properly may be done by a corporation not for profit organized for such purposes, under the laws of the State of Florida, and to possess all proper powers, rights and privileges
permitted such a corporation not for profit by such law.
The Florida Hearing Aid Society in effectuating its purposes participates in legislative activities and interacts with the Respondent with regard to rule making and other regulatory matters. In addition, the Florida Hearing Aid Society has a member who serves on the Hearing Aid Advisory Council of the Respondent, which Council is created by Section 468.1235, Florida Statutes. The Florida Hearing Aid Society conducts educational programs for its members and the Florida Society is a member of the National Hearing Aid Society, its counter part at a national level. The Florida Hearing Aid Society is the only Florida association of general membership representing registrants, trainees and others affiliated with the matters of fitting and selling hearing aids.
Jay Alan Bertoch is the current president of the Florida Hearing Aid Society. George C. Martinez and Irene Selis are members of the Board of Directors of that Society.
Members of the Society, at all times pertinent, have hired trainees who have undergone or are undergoing apprenticeships in keeping with Rule 10D- 48.27, Florida Administrative Code. Bertoch, Barbara Stanley and Martinez are Society members who are involved in that training process. Those individuals have indicated a reluctance to hire trainees in the future, due to the requirements of Rule 10D-48.27(1) and (2), Florida Administrative Code, which requires immediate supervision of Stage I and II trainees. The aforementioned individuals have also been influenced in their opinion, based upon the October 16, 1981, memorandum from Ralph Gray, Administrative Official with the Respondent, which memorandum is at issue through this rules challenge. This memorandum has contributed to the reluctance on the part of the registrants to utilize trainees.
The Florida Hearing Aid Society voted through its Board to bring the rules challenge.
The October 16, 1981, memorandum was directed to all licensed registrants in Florida who fit and sell hearing aids. A copy of the full text of that memorandum may be found as Petitioner's Exhibit No. 2, admitted into evidence. The memorandum speaks in terms of an interpretation of Subsection 468.126(2)(a) and (b), Florida Statutes, Part II, and Rule 100-48.27(1) and (2), Florida Administrative Code, and was authored by Ralph Gray, the Program Administrator for the Hearing Aid Licensure Program. Gray's duties, among other matters, include the investigation and decision to prosecute those registrants and trainees who would violate the terms and conditions of the statutes and rules pertaining to the fitting and selling of hearing aids. This so-called interpretation was made on the basis of inquiries that had been made of Respondent concerning testing clients and selling of hearing aids to those clients by Stage I and II trainees, without being in the same physical location as the sponsor/registrant. This refers to the sponsor of the trainee.
Barbara Stanley's testimony identified the fact that when she, as registrant, accompanied her Stage I or II trainee in activities outside the office, as opposed to letting the trainee operate alone outside the office, she would lose income opportunities. Stanley and Martinez, in discussing the specific question of hiring trainees in the future, established that they would be bothered by that idea in view of the fact of cost to them as registrants and the financial burden that is placed on trainees.
Typically, the trainees are salaried during their apprenticeship or work on commission during that time. The actual training afforded to the Stage I and II participant is not pursuant to a uniform course established by Respondent. The instruction provided by the sponsor/registrant is a matter of individual choice by that sponsor; however, reading and home study courses in the hearing aid fitting and selling field are recommended, together with some courses which are prepared by hearing aid manufacturers. Registrants Bertoch, Stanley, Martinez and Selis have provided instruction to their trainees in keeping with Respondent's guidelines.
Benjamin T. Wrubel and Howard Greisdorf, Stage II trainees employed by Irene Selis, testified in the course of the hearing and indicated that in their circumstances, there were no differences in their activities as Stage I and II trainees on the question of their employment and supervision by their sponsor. These two individuals work on a commission basis and indicated that their inability to operate independent of their sponsor in Stage I and II has created an economic imposition for them.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this cause. See Section 120.56, Florida Statutes, and Chapter 468, Florida Statutes.
The underlying legislation related to training for Stage I and II apprentices in the business of fitting and selling hearing aids is as found in Subsections 468.126(2)(a) and (b), Florida Statutes, which reads as follows:
Qualification for applicants for certificates of registration.
An applicant, after receiving a temporary trainee certificate of registration, shall begin trainee apprenticeship for a period of 6 months as follows:
Stage I. A period of work for 1 month under the direct control and supervision of a sponsor. During this period, a trainee shall not fit a purchaser or user with a hearing aid, but may administer practice audiograms.
Stage II. A period of work for 2 months under the direct control and supervision of a sponsor. During this period, a trainee may perform such testing as is necessary for the proper selection and fitting of a hearing aid and may perform any function required for the making of ear impressions, but shall not deliver a hearing aid to the purchaser or user and shall not perform the final fitting of a hearing aid.
In an attempt to effectuate the purposes of training set forth in Stage I and II, the Respondent has enacted, among other provisions, Rule 100- 48.27(1) and (2), Florida Administrative Code:
10D-48.27 Trainee Requirements.
During Stage I of the Trainee Apprenticeship Period, the trainee shall train in the same physical location with his licensed sponsor, or other registrants designated by his sponsor, during the published normal business hours. While in Stage I, the trainee shall not be allowed away from the licensed sponsor's established place of business to solicit business or perform other services relative to the fitting, selling, servicing or repairing of hearing aids, unless his sponsor or a registrant designated by his sponsor is physically present with the trainee.
During Stage II of the Trainee Apprenticeship Period, the trainee shall train in the same physical location with his licensed sponsor, or other registrants designated by his sponsor, during the
published normal business hours. The trainee, while under the direct supervision of his sponsor, or other registrants designated
by his sponsor, shall practice each of the tests and procedures as stipulated in F.S.
in a sufficient number that he becomes skillful in the procedures and techniques for proper fitting and selection of a hearing aid.
Those registrants and trainees permitted to participate in the fitting and selling of hearing aids in the State of Florida, who are also members of the Florida Hearing Aid Society, Inc., are substantially affected by Rule 10D-48.27
and (2), Florida Administrative Code, and the October 16, 1981, memorandum. The rule in question regulates the field in which those particular Society members practice and the rule pervasively governs their livelihood. The memorandum is also an integral part of the regulatory process. Consequently, Florida Hearing Aid Society has standing to maintain the rules challenge to the subject matters. See Florida Home Builders Association v. Department of Labor and Employment Security, So.2d (Fla. 1981), Case No. 60,211, opinion issued March 25, 1982.
Likewise, with the exception of the Petitioners William R. Thomas, William A. McGill, and Richard Vernon Reave, the individual Petitioners in this cause have demonstrated their standing to challenge the disputed rule. See Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), and Florida Department of Offender Rehabilitation v. Gerry, 357 So.2d 1230 (.Fla. 1st DCA 1978).
In Subsections 468.126(2)(a) and (b), Florida Statutes, which establish the training needs of Stage I and II trainees, the focus of the program calls for the "direct control and supervision of a sponsor". Rule 10D- 48.27(1) and (2), Florida Administrative Code, translates the idea of "direct control and supervision" into terms such as "shall train in the same physical location with his licensed sponsor" and the idea that the sponsor shall be "physically present". In addition, the term "direct supervision of his sponsor" is utilized in a portion of the rule provision. All of these definitions are
consonant with the statutory idea that Stage I and II employees must be under the immediate control and supervision of the sponsor.
In addition, the refinement of the statutory mandate as found in the second paragraph to Rule 10D-48.27(1), Florida Administrative Code, dealing with specific directions related to solicitation of business and performance of services related to fitting, selling, servicing and repairing hearing aids, only in the physical presence of a registrant who is the sponsor or who has been designated by the sponsor is in keeping with the idea of supervision and control in these activities.
That provision and Rule 10D-48.27(2), Florida Administrative Code, in the second paragraph dealing with the need for practice by a Stage II apprentice in testing techniques and procedures found in Section 468.127, Florida Statutes 2/, to allow that apprentice to become skillful in necessary procedures and techniques which lead to the fitting and selection of hearing aids is in accord with Subsection 468.126(b), Florida Statutes, dealing with the idea of a Stage II trainee performing tests relating to selection of hearing aids.
As written, Rule 10D-48.27(1) and (2), Florida Administrative Code, does not exceed legislative authority. The rule is not inappropriate to the end specified in that enabling legislation and, in fact, is reasonably related to the purpose of the legislation. Likewise, the rule is not arbitrary or capricious, in that it is not found to be irrational or without thought or reason or found to be unsupported by facts and logic. See Agrico Chemical Co.
v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979); 4245 Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978), and Florida Beverage Corporation, Inc. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975).
In considering the October 16, 1981, memorandum prepared by the Program Administrator for the Respondent, the initial question is whether the memorandum is a rule within the meaning of Subsection 120.52(14), Florida Statutes, which defines rule as:
'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets.
Contractual provisions reached as a result of collective bargaining.
Agricultural marketing orders under chapter 573 or chapter 601.
Curricula by an educational unit.
Agency action which has the effect of altering established hunting or fishing seasons when such action is adequately noticed in the area affected through publishing in a newspaper of general circulation or through notice by broadcasting in an electronic media.
Any tests, test scoring criteria, practices, or procedures relating to student assessment which are developed or administered by the Department of Education pursuant to
s. 229.57, s. 232.245, s. 232.246, or
s. 232.247.
To meet the terms of the definition of the rule, a document or act must, by its terms, create certain rights, or in the alternative, require certain compliance or in some fashion have the direct and consistent effect of law, in addition to having general applicability. See McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), and State Dept. of Admin. v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977).
The memorandum in question is a matter which has been circulated to all registrants who fit and sell hearing aids in Florida. Its author is the individual who is charged with the investigation and enforcement of the statutes and rules pertaining to that enterprise. By its terms, it requires compliance. It has been prepared in response to certain inquiries concerning the possibility that Stage I and II trainees might test or sell hearing aids without being in the same physical location as their sponsor and without that sponsor's direct supervision.
In pertinent part, it says:
2. Inquiries have been received by our office concerning Trainees in Stage I and Stage II testing individuals and selling hearing aids without being in the same physical location with their Sponsor and without direct supervision by their Sponsor. It is our interpretation of Chapter 468.126(2)(a)(b), Florida Statutes, Part II, and Chapter
10D-48.27(1)(2), Florida Administrative Code, that Trainees in Stage I and Stage II must be under the direct control and supervision of a Sponsor and in the same physical location with the Sponsor during the published normal business hours. This means that a Sponsor is in violation of the Statute and the Florida Administrative Code if he/she allows a Trainee, while in Stage I or Stage II, to test individuals or solicit business in or out of the office, unless the Trainee has a Sponsor or other designated registrant supervising in the same physical location with the Trainee.
For the most part, it is nothing more than an interpretation of statutes and rules which have been enacted or promulgated in accordance with law and to that extent, it is not a rule. Nonetheless, the memorandum has a feature whose language is not extracted from the Florida Statutes or found in Rule 10D- 48.27(1) and (2), Florida Administrative Code. This specifically refers to a Stage II trainee soliciting business in or out of the office, without being in the same physical location as his sponsor or other designated registrant who is there to supervise that trainee. This prohibition or reminder is set forth in Rule 10D-48.27(1), Florida Administrative Code, dealing with Stage I trainees. It is not set forth in Rule 10D-48.27(2), Florida Administrative Code, related to Stage II trainees. Finally, it is not a verbatim restatement or regulatory training provision set forth in Chapter 468, Florida Statutes, and in particular, Subsections 468.126(2)(a) and (b), Florida Statutes. The language referred to dealing with Stage II trainees is an attempt to interpret the requirements of Chapter 468, Florida Statutes, and to act in keeping with that law, by the creation of an illicit rule provision not duly promulgated through Section 120.54, Florida Statutes. As such, that provision of the memorandum which attempts to bar Stage II from solicitation of business either in or out of the office unless that trainee has the Sponsor or other designated registrant supervising the trainee in the same physical location, is an invalid exercise of legislative authority within the meaning of Section 120.56, Florida Statutes.
In summary, it is determined that Rule 10D-48.27 (1) and (2), Florida Administrative Code, is a valid exercise of delegated legislative authority. The October 16, 1981, memorandum is not found to be a rule, with the exception of that portion dealing with Stage II trainees and their solicitation of business in or out of the office while not in the same physical location as
their sponsor or designated registrant, who is there for purposes of supervising that trainee. That statement dealing with the Stage II trainee solicitation of business is found to be an invalid exercise of legislative authority.
DONE and ORDERED this 7th day of May, 1982, in Tallahassee, Florida.
CHARLES C. ADAMS
Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1982.
1/ Proposed Final Orders have been offered and argument has been made. These matters have been reviewed prior to the entry
of this Final Order and utilized in part. The portions not used are hereby rejected.
2/ 468.127 Trainee requirements. --All trainees are required to satisfactorily complete and pass an examination as prescribed by the Department of Health and
Rehabilitative Services. The examination shall be such that it will establish knowledge or proficiency in each of the following:
George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301
Ms. Liz Cloud Department of State Room 1802, The Capitol
