STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOOD SAMARITAN HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4878RU

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal administrative hearing in the above-styled case, which had been consolidated for hearing with Case No. 89-3687, on February 27-28, in West Palm Beach, Florida, and on March 1, 1990, in Tallahassee, Florida. The record in these consolidated proceedings was closed on August 21, 1990, by entry of the order ruling on objections to certain late-filed exhibits.

APPEARANCES

For Petitioner: H. Darrell White, Esquire

William B. Wiley, Esquire McFarlain, Sternstein, Wiley

& Cassedy, P.A.

First Florida Bank Building, Suite 600 Tallahassee, Florida 32301

James A. Farrell, Esquire Staff Attorney

Good Samaritan Hospital Post Office Box 3166

West Palm Beach, Florida 33402-3166

For Respondent: John Rodriguez, Esquire

1317 Winewood Boulevard Building One, Room 304

Tallahassee, Florida 32399-0700 ISSUE

Whether Respondent's policy statement contained in paragraph nine of PDRL Letter of Policy No. 02-89 is a rule and, if so, whether it is invalid because it was not promulgated as a rule pursuant to Section 120.54, Florida Statutes.

PRELIMINARY STATEMENT

Respondent, Department of Health and Rehabilitative Services (DHRS), filed an administrative complaint against Petitioner, Good Samaritan Hospital (GSH) based on the alleged failure of GSH to provide emergency care to a patient as required by the provisions of Sections 395.0142, 395.0143, and 401.45, Florida Statutes, during an incident on November 30, 1988. That case was referred to the Division of Administrative Hearings and assigned Case No. 89-3687.

Subsequent to the filing of the Administrative Complaint, Petitioner filed the instant rules challenge which contends that a policy letter issued by Respondent on February 1, 1989, is a rule, that it is invalid because it has not been adopted as required by law, and that Respondent improperly applied the unpromulgated rule to the incident of November 30, 1988.

With the agreement of the parties, Case No. 89-3687 and Case No. 89-4878RU were consolidated for formal hearing. A Recommended Order is being entered in Case No. 89-3687 while this Final Order is being separately entered in Case No. 89-4878RU.

At the formal consolidated hearing, GSH presented its evidence relating to the rules challenge separately from its evidence relating to the administrative complaint. Without objection, DHRS presented its response to the rules challenge and its case in chief on the administrative complaint without distinguishing which evidence was being presented for which case. GSH introduced six documentary exhibits, each of which was accepted into evidence. DHRS presented the testimony of five witnesses and the deposition testimony of two additional witnesses. DHRS exhibits 1-11 and portions of Exhibits 12-13 were accepted into evidence.

One transcript of the consolidated hearing has been filed. While certain exhibits relate to both cases, only one of each exhibit was filed. The proposed findings of fact submitted by the parties are adopted in material part by this Final Order.

FINDINGS OF FACT

1. Petitioner, Good Samaritan Hospital (GSH), is a hospital with emergency room services located in West Palm Beach, Florida. GSH is licensed under Chapter 395, Florida Statutes. Respondent, Department of Health and Rehabilitative Services (DHRS), is the designated state agency responsible for the regulation of hospitals pursuant to Chapter 395, Florida Statutes.

   
   

2. On or about June 12, 1989, DHRS filed an Administrative Complaint against GSH alleging that GSH had, on the evening of November 30, 1988, failed to provide neurosurgical treatment to a patient presented to its emergency room by the West Palm Beach Fire Department Emergency Medical Services in violation of Sections 395.0142, 395.0143, and 401.45, Florida Statutes. The Administrative Complaint notified GSH that DHRS intended to levy an administrative fine against it in the amount of $10,000.00.

3. On February 1, 1989, Department of Health and Rehabilitative Services (DHRS) issued PDRL Letter Policy No. 02-89 (letter policy), which purports to discuss the requirements of Section 395.0142, Florida Statutes. The following appears as paragraph 9 of the letter policy under the portion styled "Policy Statement":

   
   

   9. If a hospital provides an "ongoing" service and/or specialty and is specifically requested to accept a "stabilized" patient from a transferring hospital not providing such service and/or speciality, the hospital must accept such transfer for treatment. If specialized staff is not "on duty" or readily available, coverage for such service must be arranged by the hospital to which the patient will be transferred. Failure to accept will be considered a violation of this statute.

   
   

4. The following findings of fact are based, in part, on the stipulation of the parties:

   
   

   1. As of November 30, 1988, the date of the incident which is the subject of the administrative complaint, DHRS had not notified GSH of any rule or policy interpreting Sections 395.0142, 395.0143, and 401.45, Florida Statutes.

   2. As of November 30, 1988, no rule existed which stated a specific requirement that hospitals which provide neurosurgery in their emergency rooms must staff or provide on-call neurosurgery services on a continuous basis, i.e., twenty-four (24) hours per day, 365 days per year.

   3. As of November 30, 1988, no rule had been promulgated which contained the requirements of paragraph 9 of the letter policy.

      
      

5. The following findings are based, in part, on admissions made by DHRS:

   
   

   1. Paragraph 9 of the letter policy is an agency statement of general applicability that implements, interprets, or prescribes law or policy.

   2. Paragraph 9 of the letter policy is an agency statement which imposes a requirement not specifically required by statute or by an existing rule.

   3. The letter policy was distributed to hospital administrators at all of Florida's licensed hospitals.

   
   

6. The letter policy was primarily drafted by Connie Cheren, Director of DHRS' Office of Licensure and Certification, and by Larry Jordan, Chief of DHRS' Office of Emergency Medical Services, following meetings and consultations with staff. Neither Ms. Cheren nor Mr. Jordan is an attorney. The letter policy was sent out over Ms. Cheren's name.

7. The DHRS employees who investigated the incident which occurred at GSH on November 30, 1988, initially submitted a report dated March 7, 1989, which found no violation by GSH. Thereafter, the investigators were provided a copy of the policy letter by their supervisor and advised to submit an amended report based on paragraph nine. The letter policy was used and relied on by DHRS investigators, at the direction of their supervisor, to submit their Amended Investigative Report. The amended report found a violation by GSH. DHRS relied, in part, on the letter policy in determining whether to file an administrative complaint against GSH.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.56, Florida Statutes.

   
   

9. Section 120.52(16), Florida Statutes, defines the term "rule", in pertinent part, as follows:

   
   

   (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy ... .

   The term does not include:

   * * *

   (b) 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. ...

   
   

10. Section 395.0142, Florida Statutes, created by Chapter 88-186, Laws of Florida, is referred to as the "Access to Emergency Services and Care", and provides, in pertinent part, as follows:

    
    

    1. LEGISLATIVE INTENT.--The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the department vigorously enforce the ability of persons to receive emergency services and care and that the department act in a thorough and timely manner against hospitals which deny persons emergency services and care.

    2. DEFINITIONS.--As used in this section:

       * * *

       1. "Emergency services and care" means medical screening, examination, and evaluation by a physician ... to determine if an emergency medical condition ... exists and,

          if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition,

          within the service capability of the facility.

       2. "Stabilized" means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the patient from a hospital.

    3. EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF FACILITY OR HEALTH CARE PERSONNEL.--

       1. Every hospital which has an emergency department shall provide emergency services and care for any emergency medical condition

    ... when:

    * * *

    1. Emergency services and care are requested on behalf of a person by:

       1. An emergency medical services provider who is rendering care to or transporting the person; or

       2. Another hospital, when such hospital is seeking a medically necessary transfer for a patient who has been stabilized, when such transfer meets the requirements of s. 395.0144 and applicable federal law.

    * * *

    (c) Neither the hospital nor its employees, nor any physician, dentist, or podiatrist shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is based on the determination, exercising reasonable care, that the ... hospital does not have the appropriate facilities or qualified personnel available

    to render those services.

    ... (emphasis added)

    
    

11. The definition of the term "rule" contained in Section 120.52(16), Florida Statutes, was broadly written to reach invisible policy making. Straughn v. O'Riordan, 338 So.2d 832, 834 n.3 (Fla. 1976).

    
    

12. The contention of DHRS that this paragraph 9 should be considered to meet the exception to the definition of a "rule" found in Section 120.52(16)(b), Florida Statutes, is rejected as being contrary to the greater weight of the evidence. Paragraph 9 of the policy letter of February 1, 1989, is not a "legal memorandum" or a "legal opinion"; it is an agency statement of general applicability that attempts to impose on hospitals requirements that have the consistent effect of law and that are not otherwise imposed by statute or by rule, or by any reasonable construction of existing statutes. See, St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So.2d 1351 (Fla. 1st DCA 1989) Department of Revenue v. United States Sugar Corporation, 388 So.2d 596 (Fla. 1st DCA 1977); and McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

    
    

13. Paragraph 9 of the policy letter of February 1, 1989, is an unpromulgated rule, within the meaning of Section 120.52(16), Florida Statutes.

14. Section 120.52(8), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

    
    

15. DHRS made no attempt to follow the pertinent rulemaking procedures set forth in Section 120.54, Florida Statutes. It is concluded that Paragraph 9 of the policy letter of February 1, 1989, is a rule that is an "invalid exercise of delegated legislative authority" as defined by Section 120.52(8), Florida Statutes.

    
    

16. The contentions by GSH that DHRS improperly applied the impromulgated rule to the incident of November 30, 1988, is not at issue in this proceeding. That contention is one of the issues presented by Case No. 89-3687.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that paragraph nine of PDRL Letter Policy No. 02-89 is an

unpromulgated rule that constitutes an invalid exercise of delegated legislative

authority.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of October, 1990.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1990.

COPIES FURNISHED:

H. Darrell White, Esquire William B. Wiley, Esquire McFarlain, Sternstein, Wiley

& Cassedy, P.A.

First Florida Bank Building Suite 600

Tallahassee, Florida 32301

James A. Farrell, Esquire Staff Attorney

Good Samaritan Hospital Post Office Box 3166

West Palm Beach, Florida 33402-3166

John Rodriguez, Esquire 1317 Winewood Boulevard Building One, Room 304

Tallahassee, Florida 32399-0700

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68. FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 89-004878RU

Orders for Case No: 89-004878RU