STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DANIEL R. FERNANDEZ; DAX J. LONETTO, SR., PPLC; FLORIDA JUSTICE ASSOCIATION; AND FLORIDA CONSUMER ACTION NETWORK, INC.,
Petitioners,
vs.
DEPARTMENT OF HEALTH, BOARD OF MEDICINE,
Case Nos. 15-1774RP
15-1775RP
15-1778RP
15-1794RP
Respondent,
and
BACTES IMAGING SOLUTIONS, INC.; HEALTHPORT TECHNOLOGIES, LLC; AND FLORIDA MEDICAL ASSOCIATION,
Intervenors.
/
FINAL ORDER
A final evidentiary hearing was held in these consolidated cases on September 8 and 9, 2015, in Tallahassee, Florida, before Lynne A. Quimby-Pennock, a duly-designated Administrative Law Judge with the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners, Daniel R. Fernandez; Dax J. Lonetto, Sr., PLLC; and Florida Consumer Action Network:
Nicolas Q. Porter, Esquire de la Parte & Gilbert, P.A.
101 East Kennedy Boulevard, Suite 2000 Tampa, Florida 33602
For Petitioner, Florida Justice Association:
G.C. Murray, Jr., Esquire Florida Justice Association
218 South Monroe Street Tallahassee, Florida 32301
For Respondent, Florida Department of Health,
Board of Medicine:
Edward Alexander Tellechea, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399
For Intervenor, BACTES Imaging Solutions, Inc.:
Amanda Eaton Ferrelle, Esquire Dawson Orr, P.A.
Suite 1675
50 North Laura Street Jacksonville, Florida 32202
For Intervenor, Florida Medical Association:
Mary Kathleen Thomas, Esquire Florida Medical Association 1430 Piedmont Drive East Tallahassee, Florida 32308
For Intervenor, Healthport Technologies, LLC:
Dan R. Stengle, Esquire
Dan R. Stengle, Attorney, LLC
502 North Adams Street Tallahassee, Florida 32301
Cynthia A. Henderson, Esquire Cynthia A. Henderson, P.A.
2606 Thomasville Road
Tallahassee, Florida 32308 STATEMENT OF THE ISSUE
At issue in this proceeding is whether the proposed amendments set forth in the Notice of Proposed Rule published on
May 15, 2013, in the Florida Administrative Register, Vol. 39, No. 95, pages 2609 through 2610 and modified by the Notice of Change, published on March 12, 2015, in the Florida Administrative Register, Vol. 41, No. 49, pages 1236
through 1237, constitute an invalid exercise of delegated legislative authority,1/ and, if so, whether costs and attorney’s fees should be assessed against Respondent and paid to Petitioner.
PRELIMINARY STATEMENT
In October 2012, the Florida Board of Medicine (Board, Respondent, or BOM) proposed the development of rule amendments to Florida Administrative Code Rule 64B8-10.003 to address the cost of the reproduction of medical records, which were stored in an electronic format. In May 2013, the Board proposed a rule amendment that was intended to set forth a single fee for reproducing medical records. In March 2015, the Board published a Notice of Change that provided additional changes to the May 2013 proposed rule.
On March 31, 2015, Petitioners, Daniel R. Fernandez (Fernandez), and Dax J. Lonetto, Sr., PLLC (Lonetto), each filed a Petition for Administrative Hearing Determining Invalidity of Proposed Rule. Fernandez’s petition was assigned DOAH Case
No. 15-1774RP. Lonetto’s petition was assigned DOAH Case No. 15-1775RP. On April 1, Petitioner, Florida Justice
Association (FJA), filed a Petition for Determination of Invalidity of BOM’s Proposed Medical Records Increase Rule. FJA’s petition was assigned DOAH Case No. 15-1778RP. Also, on April 1, Petitioner Florida Consumer Action Network, Inc. (FCAN) filed a Petition for Administrative Hearing Determining Invalidity of Proposed Rule. FCAN’s petition was assigned DOAH Case No. 15-1794RP. Fernandez, Lonetto, FJA, and FCAN will be collectively identified as Petitioners.
On April 2, the undersigned issued a Notice of Hearing and Order of Pre-Hearing Instructions. The notice scheduled the hearing for April 29.
On April 3, Respondent filed an Unopposed Motion to Abate, Continue, and Consolidate.2/ The four petitions were consolidated to DOAH Case No. 15-1774RP. On April 7, an Order Denying Abatement and Granting Continuance (Order) was issued. The Order afforded Respondent’s counsel time to present the Board with the lower cost regulatory alternatives that Petitioners had submitted. Additionally, the Order provided that the parties were to provide three mutually-agreeable dates prior to June 5 on which to conduct the hearing.
Leave to intervene, without any objections from Petitioners3/ or Respondent, was granted to BACTES Imaging Solutions, Inc. (BACTES); HealthPort Technologies, LLC (HealthPort); and the Florida Medical Association (FMA).
At the hearing, Joint Exhibits JT-1 through JT-124/ were admitted into evidence. Petitioners’ Exhibit, PT-1, was admitted over objection. Respondent's Exhibits BOM-1, BOM-2 and BOM-3 were admitted over objection, and BOM-4 and BOM-5 were admitted without objection. Petitioners and Respondent each listed (former Board Executive Director) Allison Dudley and (current Board Executive Director) Andre Ourso as their witnesses. In order to provide an orderly hearing flow and allow each party the opportunity to elicit the direct testimony of each witness, the undersigned allowed great leeway in each cross-examination.
At the conclusion of the hearing, Petitioner FJA offered an oral motion to amend its petition by adding an additional count, “specifically to address the failure of an agency to follow applicable rulemaking procedures or requirements set forth in the chapter,” according to section 120.56, Florida Statutes.
Following oral arguments, the motion was denied. Additionally, in light of the fast-approaching October Board meeting, Respondent requested to file the post-hearing submissions on October 23. None of the parties objected and the request was granted.
The three-volume Transcript of the final hearing was filed on September 21. On September 22, a Notice of Filing was issued, directing the parties to file their proposed final
orders (PFOs) on or before 5:00 p.m. on October 23. On
October 19, an Unopposed Motion for Late Filed Exhibit was filed and requested that the second portion of Joint Exhibit 9 be admitted.5/ This second portion of the Joint Exhibit 9 was admitted.
On October 22, an Unopposed Motion for Extension of Time to File Proposed Final Order and for Extending Page Limit on Proposed Final Order was filed. Both motions were granted. The parties were allowed to file their PFOs before the close of business on Friday, November 6, and the page limitation was raised to 60 pages.
On November 6, Petitioners filed a Joint Proposed Final Order and Respondent filed its Proposed Final Order. The Florida Medical Association filed a notice that it concurred with Respondent’s PFO. BACTES and HealthPort did not file a PFO. Each submission has been carefully considered in the preparation of this Final Order.
Unless otherwise noted, all statutory references are to the 2015 version of the Florida Statutes.
FINDINGS OF FACT
The Petition
Petitioners have challenged the Notice of Proposed Rule and Notice of Change as an invalid exercise of delegated legislative authority. The petitions request that a formal
hearing be conducted, a final order be entered determining that the proposed rule is an invalid exercise of delegated legislative authority, award petitioners’ costs and attorneys’ fees, and provide such other relief as deemed necessary.
The Parties
Petitioner Fernandez is a Florida resident and patient with ongoing medical issues that requires him to request and obtain his medical records from his attending or treating physicians from time to time.
Petitioner Dax J. Lonetto, Sr., PPLC, is a Florida-based law firm. Dax Lonetto is a Florida-licensed attorney and sole shareholder of the Lonetto PPLC law firm. Eighty-five to 90 percent of Mr. Lonetto’s practice involves social security disability benefits, and the remainder of his practice involves veteran’s benefits and other basic personal injury claims.6/ In order to pursue and obtain social security benefits or veteran’s benefits for clients, Mr. Lonetto must first obtain his clients’ medical records.
Petitioner FJA is a statewide, not-for-profit, professional association of approximately 2,500 plaintiff trial attorneys. FJA’s purpose is engaging in advocacy efforts on behalf of its membership, strengthening and upholding Florida’s civil justice system, and protecting the rights of Florida’s citizens and consumers.
Paul D. Jess is a Florida-licensed attorney who serves as the general counsel and deputy executive director for FJA.
Mr. Jess provided no documentary evidence to support the position that most physician “offices or vendors would charge the maximum [amount] permitted [by the rule].” Mr. Jess admitted that FJA is not “directly injured by this price hike as an association or as a corporation,” because FJA does not order medical records.
However, Mr. Jess testified that for the majority of FJA’s members, ordering medical records is a routine practice on behalf of their clients. Further, Mr. Jess believed that a majority of FJA members would be adversely impacted by this proposed rule, based on the increased costs in obtaining their clients’ medical records.
Petitioner FCAN is a Florida not-for-profit grassroots organization dedicated to advocating for the rights of Florida consumers. William Newton served as the corporate representative for FCAN. Mr. Newton previously relinquished the full-time executive director’s position and now currently works part-time as FCAN’s deputy director.
FCAN currently has about 7,000 individual members. FCAN is a nonpartisan organization which represents Florida consumers in four major issue areas: utilities, insurance, health care, and the environment.7/ With respect to the health care area, FCAN stands for affordable and available health care for
everyone, with a focus on trying to improve accessibility, as well as to control the price of health care. Mr. Newton did not know how many of FCAN’s 7,000 members would be affected by the proposed rule change; however, he believed that “almost all of them would be” because they go to the doctor.
The Board regulates the practice of medicine in Florida pursuant to chapters 456 and 458, Florida Statutes, and is the agency that is proposing the rule amendments at issue.
Intervener BACTES is a release of information (ROI) provider that contracts with physicians in Florida and throughout the country to process and fulfill requests for medical records received by such physicians. William Bailey founded BACTES and served as its CEO from 1991 until July 2013, when he assumed a consultant status with the provider. Mr. Bailey confirmed that BACTES is currently operating in Florida with three offices located in Orlando, Ft. Myers, and Jacksonville. BACTES has no plans to discontinue doing business in Florida.8/
Intervener HealthPort is also an ROI provider that contracts with physicians in Florida and throughout the country to process and fulfill requests for medical records received by such physicians. Kyle Probst, HealthPort’s counsel and director of government relations, confirmed that HealthPort engaged Cynthia Henderson to approach the Board regarding making changes
to the rule to “clear up some apparent confusion about how medical records should be billed in the state of Florida.”
Intervener FMA is a professional association dedicated to the service and assistance of allopathic and osteopathic physicians in Florida. Approximately 20,000 licensed Florida physicians are members of the FMA. The parties agreed there are approximately 75,000 physicians licensed and regulated by the Board. Not all 75,000 Florida licensed physicians are currently practicing in Florida.
The Statute and Current Rule
Section 456.057(17), Florida Statutes, provides:
A health care practitioner or records owner furnishing copies of reports or records or making the reports or records available for digital scanning pursuant to this section shall charge no more than the actual cost of copying, including reasonable staff time, or the amount specified in administrative rule by the appropriate board, or the department when there is no board.
Section 458.309(1) provides in pertinent part:
The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it.
Florida Administrative Code Rule 64B8-10.003 is the Board’s rule governing the costs of reproducing medical records. The rule was first adopted on November 11, 1987, as rule
21M-26.003. It was transferred to rule 61F6-26.003, then to
rule 59R-10.003, amended on May 12, 1988, amended on March 9, 2009, and then finally transferred to rule 64B8-10.003. The rule currently provides:
Costs of Reproducing Medical Records. Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical records may be financially burdensome to some practitioners. Therefore, the following rule sets forth the permitted costs for the reproduction of medical records.
Any person licensed pursuant to Chapter 458, F.S., required to release copies of patient medical records may condition such release upon payment by the requesting party of the reasonable costs of reproducing the records.
For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than the following:
For the first 25 pages, the cost shall be $1.00 per page.
For each page in excess of 25 pages, the cost shall be 25 cents.
For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page.
Reasonable costs of reproducing x- rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication.
Specific Authority 456.057(18),9/
458.309 FS. Law Implemented 456.057(18) FS. History-New 11-17-87, Amended 5-12- 88, Formerly 21M-26.003, 61F6-26.003, 59R-10.003, Amended 3-9-09.
This rule was first created in 1987 and was effective in May 1988. In pertinent part, that first rule provided that chapter 458 licensees could condition the release of copies of patient medical records “upon payment . . . of reasonable costs of reproducing the records.” The rule then defined “reasonable costs of reproducing copies . . . [should] not be more than” a
$1.00 for the first 25 pages and 25 cents per page in excess of
25 pages.
In 2009, the rule was revised to allow patients and governmental entities to get copies of medical records at that same rate. For all other entities the “reasonable costs of reproducing copies . . . [should] not be more than $1.00 per page.”
Over the course of 26 months, the Board had access to as much information as the Board staff and interested parties could provide it. The Board heard testimony in no fewer than
nine public hearings.10/ The proposed rule language was dissected and discussed on multiple levels, and the Board devoted countless hours to listening to and evaluating those comments.
Rule Development
In June 2012, the Department of Health (Department) and the Board received an email correspondence on behalf of HealthPort requesting clarification on the costs for reproducing electronic medical records. That correspondence, the current rule 64B8-10.003, and the applicable statutes were placed on the agenda for the Board’s August 2012 Rules/Legislative Committee (RLC or Committee) meeting.
At the August RLC meeting, the Committee discussed the requested action and heard from an attorney representing HealthPort. The Committee voted to table the item and seek additional information.
The Board commenced rulemaking to amend rule 64B8-10.003 in early October 2012. At the RLC meeting on
October 11, 2012, the Committee voted unanimously to recommend noticing this proposed change for rule development. The Board’s counsel was to draft language for a proposed rule change to be presented at the next RLC meeting.
On October 30, 2012, a Notice of Development of Rulemaking (Notice) was published in the Florida Administrative
Register. The Notice listed the “PURPOSE AND EFFECT: [as] The Board proposed the development of rule amendments to address the cost of reproduction of medical records which are stored in an electronic format.”
At the November 2012 RLC meeting, the Committee received a draft rule proposal, excerpts of the October RLC meeting report, and materials from the October meeting. The Committee heard from various speakers on the proposed rule language. One Committee member suggested that the RLC would benefit from knowing what other state medical boards allowed physicians to charge. Another suggested the Board staff look at a different charge for paper versus electronic production. Following the discussion, the Committee approved two motions: one to move to one rate (but undecided on what that rate would be); and the second to have then Executive Director, Alison Dudley, “come back to [the RLC] with the aspects of what costs are elsewhere so that [the RLC could] make that decision about what that rate and particular medium” is, in order to move forward.
The Board’s staff prepared a survey that was sent to administrators in medicine via a web portal, asking the following specific questions:
Does your board have a rule or law that outlines what a physician can
charge for medical records? Flat rate or per page?
Does that law or rule delineate different charges for paper medical records versus electronic medical records? What are the charges?
Does the law or rule delineate different charges for producing the medical records on paper versus on a CD? What are the charges?
Does the law or rule contemplate charges for other services such as diagnostic tests or X-rays? What are the charges?
Does your law or rule define “electronic medical record?” If so, what is that definition?
Can you share your law and/or rule with us? Thank you for your responses.
Of the 50 or so administrators contacted, the Board staff received 13 responses. Those responses were provided to the RLC for review.
At the January 31, 2013, RLC meeting, the agenda included multiple items for the Committee’s consideration: the transcript from the November 29, 2013, RLC meeting; excerpts of the RLC report dated December 2012; an email from Ms. Henderson; a 2003 White paper; the costs charged by Florida Clerk of Courts, Florida hospitals, and other Florida health care boards; costs charged by other state medical boards; and all the materials presented at the prior meetings.
The Committee received testimony from individuals regarding their understanding of how the proposed changes to the rule would or could affect their patient/clients. As a result of those comments and the RLC’s discussion, the Committee voted to have draft language prepared that included one fee for any records release with the following specific language: “stored and delivered in any format or medium.” The draft language was to be presented at the next RLC meeting.
At the April 4, 2013, RLC meeting, the Committee agenda included excerpts from its January meeting, draft language, and an article regarding the federal Health Portability and Accountability Act (HIPAA) requirements. The Committee heard from individuals again and considered the various recommendations regarding the appropriate language for the proposed rule. The draft language presented at this RLC meeting, in the underline/strike-through method, provided the following:
Costs of Reproducing Medical Records. Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical records may be financially burdensome to
some practitioners. Therefore, the following rule sets forth the permitted costs for the reproduction of medical records stored and delivered in any format or medium.
Any person licensed pursuant to Chapter 458, F.S., required to release copies of patient medical records may condition such release upon payment by the requesting party of the reasonable costs of reproducing the records.
For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than the following:
For the first 25 pages, the cost shall be $1.00 per page.
For each page in excess of 25 pages, the cost shall be 25 cents.
(2)(3) The For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page.
(3)(4) Reasonable costs of reproducing x-rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication.
Additionally, the Committee discussed the anticipated financial impact that the proposed changes would have on small businesses, including whether or not a statement of estimated regulatory costs (SERC)11/ was necessary. The Department staff could not say whether the proposed change would increase the Department’s
cost in excess of $200,000 a year. Following the discussion, the Committee voted to table the SERC decision until additional information could be brought before the Board and the proposed draft rule language was approved.
The full Board met on April 5 and approved the RLC report which included the approval of the draft rule language. Additionally, the Department staff reported that, after conferring with other staff in Tallahassee, the Department did not feel that the cost associated with the draft rule language would exceed $200,000 a year in the aggregate. The Board voted that a SERC was not required.
Between the October 2012 Notice and the May 2013 publication of the proposed rule changes, the RLC met in noticed public meetings discussing the potential rule revision. The rule record is clear that the proposed changes were discussed extensively by Committee members with input from attorneys, residents, association representatives and corporate representatives.
On May 15, 2013, a Notice of Proposed Rule (using the proposed language found in paragraph 26 above) was published in the Florida Administrative Register, Vol. 39, No. 95. The purpose for the proposed rule was to provide a single fee for reproducing medical records. The Board received a request for a hearing and numerous comments from the public on the proposed
changes. The rule hearing was scheduled for the next available Board meeting.
On August 2, 2013, the Board held a public hearing on the proposed rule in Deerfield Beach. The Board agenda included: the proposed rule 64B8-10.003; the rule hearing request; the rule hearing notice; a summary of the issue for Board consideration submitted by Ms. Henderson; copies of the notices sent regarding the hearing; meeting reports from the RLC meetings held on August 2, 2012, October 11, 2012,
November 29, 2012, January 31, 2013, and April 4, 2013; and over
60 written comments. At the Board meeting over 15 people addressed the Board, expressing either opposition to or support of the proposed changes. As a result of the testimony received, the Board chair directed that the public rule hearing be transcribed and the transcript be sent to the RLC for its consideration and determination.
At the Orlando RLC meeting on October 3, 2013, the Committee conducted a rule hearing on the proposed rule language. The RLC’s agenda included: draft proposed language for the rule; a draft RLC meeting report; a transcript from the August 2, 2013, rule hearing; an article regarding Florida doctors and medical records; and additional comments from seven different sources.
The Committee was charged to consider the testimony from the August 2013 public rule hearing, as well as the testimony from this rule hearing to make recommendations to the full Board. The Committee heard testimony from individuals who either opposed or supported the proposed rule.
The Committee members asked questions of the various presenters, and provided education to those presenters and attendees as to the multiplicity of medical practices, attendant issues, and personal experiences in dealing with medical records requests. The Committee agreed that the rule should be as set forth in the draft rule language. The Committee also agreed that there might be an “adverse impact” on small businesses, and that a SERC should be prepared.
In November 2013, Board staff distributed a survey to 1,41912/ Florida-licensed physicians seeking responses to the following questions:
Do you handle the copying of your medical records with your own staff? If yes continue to 1a. If no, go to Question 2.
Yes. No.
1a. Do you have a designated staff person who only handles the review and copying of medical records? If yes, continue to 1b. If no, continue to 1c. Yes. No.
1b. How much do you pay this person on a monthly basis, including any benefits that are provided?
1c. How much do you spend on special equipment and supplies (copier, paper etc.) for the copying of medical records annually?
If you send your medical records for copying by a service, how much do you pay each month for this service?
On average, how many requests for copies of medical records do you receive each month?
The Board staff received 28 responses from the 1,419 surveys sent out. Of those 28 responses, 27 handled the copying of medical records in-house. Twelve practitioners had a designated staff person to review and copy medical records, while 15 did not. Fifteen declined to provide how much their personnel were paid. There was a wide range of pay for the others. The costs associated for special equipment and supplies to provide copies of medical records ranged from $120 to $20,000 per month. Only one practitioner responded that medical records were sent out to a copying service. The number of medical record requests varied from one to more than 600 per month.
The next public hearing was held in Orlando on December 6, 2013. The Board materials included: the hearing notice for December 6, 2013; proposed rule language; the transcript of the October 3, 2013, meeting; section 164.524, Access of Individuals to Protected Health Information; new comments received; the survey results; and material from the
previous public hearings and meetings. The Board considered the testimony from the public hearings that had been held on
August 2 and October 3. Each speaker was afforded the opportunity to express their position and comments received were either “opposed” or “supported” the proposed rule changes.
Following the testimony, the Board voted to change proposed subsection (2) by adding the following language, which is underscored:
[t]he reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page, but shall not exceed actual costs.
Thereafter, the Board again revisited the question of whether a SERC was necessary. The Board considered whether the newly revised language would adversely affect, or was likely to directly or indirectly increase regulatory costs to any entity in excess of $200,000 in the aggregate in Florida within one year of the implementation of the rule. The Board determined that a SERC was necessary.
On February 6, 2014, the RLC met in Kissimmee for another public hearing on the proposed rule amendments. The Committee was to consider changes authorized by the Board during its December meeting. The agenda materials included: draft language of the rule; additional correspondence; and the materials from the prior meetings/hearings. If the draft rule
language was approved, two questions had to be addressed: would the proposed rule have an adverse impact on small businesses; and would the proposed rule be likely to directly or indirectly increase regulatory costs to any entity in excess of $200,000 in the aggregate in Florida within one year after its implementation? Testimony was received from several individuals.
Following the testimony, the Committee members had a discussion about the terms “actual costs” versus “reasonable costs.” The Committee voted to revise the draft rule language to “reasonable costs” and approved a “Notice of Change” to be published. The Committee also determined that the amendment would not have an adverse impact on small businesses, nor was it likely to directly or indirectly increase regulatory costs in excess of $200,000.
On April 3, 2014, the RLC held another public hearing in Deerfield Beach on the proposed rule. There remained some inconsistencies in the changes that were approved and the Committee reconsidered the proposed rule language. The material in the RLC’s agenda included: materials presented at previous meetings including correspondence; draft changes to the rule; the hearing notice; an article regarding electronic records; an excerpt of the February 2014 meeting; and the transcript of the February 2014 meeting.
The Committee received testimony from several speakers who pointed out concerns about the proposed rule, and provided alternatives to it. After the testimony, the Committee voted to have new language prepared addressing those concerns and, in some instances, incorporated alternative suggestions. Additionally, the Committee understood that an additional public hearing would be necessary, and that the SERC might need to be revised.
On June 5, 2014, the RLC met in Tampa for another public hearing to consider the revised draft rule language. The agenda included: the hearing notice; the proposed draft language; a proposed SERC; multiple written comments; transcripts from prior RLC and Board meetings where the proposed rule was discussed; and RLC meeting reports. The Committee voted to table the discussion of the proposed rule until another hearing could be held in South Florida.
On October 9, 2014, the RLC met in Deerfield Beach and held a rule hearing regarding the revised rule language. The Committee received additional testimony from concerned individuals. The Committee voted to accumulate all the comments and present everything to the full Board at the December 2014 meeting.
In October 2014, Ms. Dudley was asked to speak at the Capital Medical Society in Tallahassee. Ms. Dudley took the
opportunity to hand out the survey (found in paragraph 34) to the participants. Although she received four additional responses to the survey, the audience was not physicians, but staff who primarily handled the medical records for medical offices.
On December 4, 2014, the RLC met in St. Petersburg for an additional rule hearing on the proposed rule language. The Committee was to review all the comments submitted. The RLC’s agenda material included: the hearing notice; the suggested changes to the draft proposed rule from March and May 2014; the excerpt of the RLC meeting report in October 2014; multiple correspondence from concerned individuals; survey responses from physician offices (including the four additional surveys); materials from the prior hearings and RLC meetings; and the proposed SERC.
At the beginning of this rule hearing, the Board’s executive director provided a suggested revision to the proposed rule by adding a new paragraph: “(4) Accessing medical records through patient portals does not constitute the reproduction of medical records.” Testimony was received from various individuals regarding the proposed rule language. The Committee reviewed all the comments submitted. The Committee determined that a SERC should be prepared.
The Board held another rule hearing on the proposed rule language on February 6, 2015, in Stuart. The agenda material included: the hearing notice; the draft changes; the excerpt of the RLC meeting; survey responses from physician offices; newly received written comments; a proposed SERC; and materials presented at the previous hearings and meetings. The Board heard testimony from several individuals who either opposed or supported the proposed rule language. The Board reviewed the changes to the proposed rule and the proposed SERC, and heard testimony from presenters. Based on that testimony, the Board members further discussed the proposed rule language and voted to modify it again.
After the proposed rule language discussion, the Board then addressed whether it believed, with the latest revision to the draft rule, that a SERC was necessary. The Board voted to accept the SERC as presented.
On February 17, 2015, the Joint Administrative Procedures Committee (JAPC) wrote the Board regarding the SERC and inquired as to whether the draft rule would require legislative ratification.
As a result of the JAPC inquiry on March 4, 2015, the Board held a telephonic conference meeting. The Board heard from three individuals regarding whether the proposed rule required legislative ratification and the status of the SERC.
The Board determined that the rule would require legislative ratification and the SERC needed to be revised. The Board approved the following changes to the proposed rule (the initial paragraph and sections (1) and (2) are found in paragraph 26 above):
(4) Reasonable costs of reproducing x- rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with duplication, plus postage.
Accessing medical records through patient portals does not constitute the reproduction of medical records.
On March 12, 2015, the Notice of Change was published in the Florida Administrative Register, and the four petitions were filed. Following the filing of the petitions at DOAH, the parties requested a continuance to allow the Petitioners the opportunity to present their lower-cost alternatives to the Board.
At the April 10, 2015, Board meeting, the Board addressed an allegation that the Board had failed to consider five lower-cost regulatory alternatives (Alternatives). The Board had not considered the Alternatives because they had not been filed for the Board’s consideration. Once the Alternatives were filed, they were placed on the next available Board agenda.
The first Alternative was to leave the rule in its current state. After hearing from interested parties, the Board determined that it had evaluated the issues around the rule and the costs during the prior hearings and meetings. The Board agreed that the status quo was not viable for a variety of reasons. The Board voted to reject this Alternative.
The second Alternative asked that the medical record holder only be allowed to charge the actual cost of copying, including reasonable staff time consistent with section 457.057(17). The Board discussed that through the multiple public hearings it had determined that it would be impossible to determine the actual charge for copying. The actual cost for an urban multi-partner physician would be different than a solo practitioner’s office in a rural location. The Board voted unanimously to reject this Alternative.
The third Alternative asked the Board to conduct an evaluation or study regarding what the actual costs of copying are for medical record holders based on the type of request, type of medical record, the format of the record, and the format of the record to be delivered. The Board discussed what it had heard about in the prior meetings: other states allowed higher levels of reimbursing; and hospitals charged $1.00 per page as authorized by statute. The Board attempted to obtain the data sought but was unsuccessful in obtaining any significant
response. Further, the Board does not have the statutory authority to require physicians to respond to any data or survey requests. The Board voted unanimously to reject this Alternative.
The fourth Alternative asked the Board to eliminate the per-page price and impose a restriction that the prices could not exceed the maximum price authorized by HIPAA. The Board did not concur that HIPAA set an exact amount, and trying to determine the costs for each practitioner in each type of practice would be frustrating to all involved. The Board voted unanimously to reject this Alternative.
The fifth Alternative asked the Board to keep the current rule, but separate the costs for electronic versus digital copies. The Board discussed the movement towards all electronic medical records, but paper records and other records will still exist. The Board determined that there is a need for the proposed rule to address the current circumstance. The Board voted unanimously to reject this Alternative.
Those opposed to the alleged increase testified there was no basis for the change, that the proposed change quadrupled the price for patients and governmental entities, and that it was arbitrary and capricious, especially with respect to electronic records. These opponents fail to recognize changes in medicine. HIPAA brought patient confidentiality and the need
to maintain that confidentiality into sharp focus. Medical practitioners are required to ensure that confidential patient information is not disseminated to unauthorized persons.
Physicians must pay to have medical records copied, whether it is done “in-house” or by an ROI provider. Labor costs have increased and the tedious review to ensure that confidential information remains confidential is time-consuming and costly.
Medical practices can be quite varied in type, size, sophistication, location, and much more. Petitioners’ claim that the proposed rule should be the “actual cost” to the practitioner is impracticable. A general practitioner in a rural solo practice, who receives one request for medical records, might be able to ascertain the “actual cost” to produce that one medical record. A specialist in an urban multi-partner practice group, who receives multiple requests for medical records, would find it nearly impossible to ascertain the “actual cost” to produce each requested medical record without extensive business record-keeping.
This proposed rule retains the suggestion that physicians “provide their patients with a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged.” Physicians provide medical records, free of charge, to subsequent or specialty physicians
to ensure care. However, physicians are not in the business of repeatedly producing medical records.
Those in favor of the proposed rule testified that the cost to physicians for reproducing medical records has not increased in years. The stringent HIPAA requirements placed an additional requirement on health care providers to ensure that private individual health data is kept confidential.
The process to release medical records is not simply to pull a paper, digital or electronic medical record, copy it, and send it out the door. The process, as explained, takes valuable time from practitioners and their staff. In a simplified fashion once the request is made: staff must verify the requester’s identity and right to obtain the copy; the request must be logged into a HIPAA log; staff must locate and retrieve the medical record in whatever format it is in; staff must redact confidential information; staff must review for specific health treatment records (mental health, alcohol or drug treatment, HIV status) that cannot be provided pursuant to statute; a copy may need to be made or a paper copy may need to be scanned to an electronic disc; and the practitioner must review it to make sure it can be provided as requested. It is a time-consuming process.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to sections 120.56, 120.569 and 120.57(1), Florida Statute. Jurisdiction attaches when a person who is substantially affected by an agency’s rule claims that it is an invalid exercise of delegated legislative authority.
Standing
Section 120.56(1) provides in pertinent part:
GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.—
Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
* * *
(e) Hearings held under this section shall be de novo in nature. The standard of proof shall be the preponderance of the evidence. Hearings
shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge’s order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. Other substantially affected persons may join the proceedings as intervenors on appropriate terms which shall not unduly delay the proceedings. Failure to proceed under this section shall not constitute failure to exhaust administrative remedies.
Standing is jurisdictional. See State of Fla., Dep’t of HRS v. Alice P., 367 So. 2d 1045, 1052-53 (Fla. 1st DCA 1979); see also Abbott Labs. v. Mylan Pharm., Inc., 15 So. 3d
642, 651 n.2 (Fla. 1st DCA 2009). The parties agreed that Mr. Fernandez, HealthPort, and the FMA have standing.
To establish that it is “substantially affected,” a party must show (1) that the rule or policy will result in a real or immediate injury in fact and (2) that the alleged interest is within the zone of interest to be protected or regulated. Off. of Ins. Reg. & Fin. Servs. Comm’n v. Secure
Enters., L.L.C., 124 So. 3d 332, 336 (Fla. 1st DCA 2013). A
“real or immediate injury in fact” does not include an injury that is abstract, conjectural, speculative, or hypothetical.
See Vill. Park Mobile Home Ass’n, Inc. v. State of Fla., Dep’t of Bus. Reg., 506 So. 2d 426, 433 (Fla. 1st DCA 1987). Rather,
a rule challenge petitioner must allege that it has sustained or
is in immediate danger of sustaining some direct injury as a result of the challenged official conduct. Id. Stated a different way, Petitioners’ allegations must be of sufficient immediacy and reality to confer standing. Id. (citing Fla.
Dep’t of Offender Rehab. v. Jerry, 353 So. 2d 1230, 1236 (Fla.
1st DCA 1978) (disapproved on other grounds by Fla. Home Builders Ass’n v. Dep’t of Labor & Emp. Sec., 412 So. 2d 351
(Fla. 1982)).
In order to meet the substantially affected test, each individual or entity must establish that, as a consequence of the proposed rule, each, individually, will suffer injury in fact and that the injury is within the zone of interested to be regulated or protected. Lanoue v. Fla. Dep’t of Law Enf., 751 So. 2d 94 (Fla. 1st DCA 1999). With respect to Petitioner Dax Lonetto, Sr., PLLC, the law firm demonstrated that it would suffer a real or immediate injury should the proposed rule language become effective, thus evidencing an adverse impact.
With respect to organizations or associations, in order to be permitted to have standing, a “professional association must demonstrate that (1) a substantial number of its members, although not necessarily a majority, are "substantially affected" by the challenged rule[;] . . . (2) the subject matter of the rule [is] within the association's general scope of interest and activity[;] and (3) the relief requested
[is] of the type appropriate for a trade association to receive on behalf of its members.” Fla. Home Builders Ass'n v. Dep't of Labor & Emp. Sec., 412 So. 2d 351, 353-54 (Fla. 1982).
FJA, via Mr. Jess’ testimony failed to meet the threshold test. Mr. Jess’ “belief” that FJA’s members would be adversely impacted is insufficient to find standing.
FCAN, via Mr. Newton’s testimony also failed to meet the threshold test. Mr. Newton believed that “almost all” of FCAN members would be impacted simply because they go to the doctor. This begs the question of whether or not any member would seek a copy of their medical record or be adversely affected by the proposed rule. Mr. Newton’s belief is insufficient to find standing.
With respect to Intervenor BACTES, BACTES has established that its “substantial interest” could be affected by the proposed rule language. BACTES’ legal status is not the issue at present; the issue is whether or not BACTES’ substantial interest could be affected. BACTES has standing. Burden of Proof and Applicable Legal Standards
Section 120.56(2) provides in pertinent part:
CHALLENGING PROPOSED RULES; SPECIAL PROVISIONS.—
A substantially affected person may seek an administrative determination of the invalidity of a proposed rule by filing a petition seeking such a
determination with the division within
21 days after the date of publication of the notice required by s. 120.54(3)(a) .
. . . ; The petition must state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority. The petitioner has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. A person who is substantially affected by a change in the proposed rule may seek a determination of the validity of such change. A person who is not substantially affected by the proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any provision of the rule and is not limited to challenging the change to the proposed rule.
The administrative law judge may declare the proposed rule wholly or partly invalid. Unless the decision of the administrative law judge is reversed on appeal, the proposed rule or provision of a proposed rule declared invalid shall not be adopted. After a petition for administrative determination has been filed, the agency may proceed with all other steps in the rulemaking process, including the holding of a factfinding hearing. In the event part of a proposed rule is declared invalid, the adopting agency may, in its sole discretion, withdraw the proposed rule in its entirety. The agency whose proposed rule has been declared invalid in whole or part shall give notice of the decision in the first
available issue of the Florida Administrative Register.
When any substantially affected person seeks determination of the invalidity of a proposed rule pursuant to this section, the proposed rule is not presumed to be valid or invalid.
The party challenging a proposed agency rule has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. § 120.56(2)(a), Fla. Stat. When any substantially affected person seeks a determination of the invalidity of a proposed rule pursuant to section 120.56(2), the proposed rule is not presumed to be valid or invalid.
§ 120.56(2)(b), Fla. Stat.
A petitioner satisfies its burden of going forward by establishing a factual basis for the objections to the proposed rule. See St. Johns River Water Mgmt. Dist. v. Consol.-Tomoka Land Co., 717 So. 2d 72, 76 (Fla. 1st DCA 1998) (parts
superseded by ch. 99-379, §§ 2, 3, Laws of Fla.). This requires the petitioner to offer more than mere conclusions or allegations that a rule is arbitrary or capricious or is an invalid exercise of delegated legislative authority in some other way. See Combs Oil Co. v. Dep’t of Fin. Servs., Div. of
State Fire Marshall, Case No. 11-3627RP, ¶ 14 (Fla. DOAH Mar. 9,
2012). Rather, the petitioner must offer expert testimony, documentary evidence, or other competent evidence—otherwise, the petitioner’s objections amount to nothing more than conjecture and speculation. Id. Only after the petitioner has met its burden of going forward does the burden shift to the agency to demonstrate by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.
Section 120.52(8) defines what constitutes an “invalid exercise of delegated legislative authority”:
“Invalid exercise of delegated legislative authority” means action that 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 of the following applies:
The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or
The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.
Section 120.536(1) provides in pertinent part:
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific
powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.
Section 120.54 provides in pertinent part:
GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN EMERGENCY RULES.—
Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.
* * *
RULE DEVELOPMENT; WORKSHOPS; NEGOTIATED RULEMAKING.—
Except when the intended action is the repeal of a rule, agencies shall provide notice of the development of proposed rules by publication of a notice of rule development in the Florida Administrative Register before providing notice of a proposed rule as required by paragraph (3)(a). The notice of rule development shall indicate the subject area to be addressed by rule development, provide a
short, plain explanation of the purpose and effect of the proposed rule, cite the specific legal authority for the proposed rule, and include the preliminary text of the proposed rules, if available, or a statement of how a person may promptly obtain, without cost, a copy of any preliminary draft, if available.
All rules should be drafted in readable language. The language is readable if:
It avoids the use of obscure words and unnecessarily long or complicated constructions; and
It avoids the use of unnecessary technical or specialized language that is understood only by members of particular trades or professions.
An agency may hold public workshops for purposes of rule development. An agency must hold public workshops, including workshops in various regions of the state or the agency’s service area, for purposes of rule development if requested in writing by any affected person, unless the agency head explains in writing why a workshop is unnecessary. . . .
ADOPTION PROCEDURES.—
Notices.—
1. Prior to the adoption, amendment, or repeal of any rule . . . an agency, upon approval of the agency head, shall give notice of its intended action, setting forth a short, plain explanation of the purpose and effect of the proposed action; the full text of the proposed rule or amendment and a summary thereof; a reference to the grant of rulemaking
authority pursuant to which the rule is adopted; and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented or interpreted. The notice must include a summary of the agency’s statement of the estimated regulatory costs, if one has been prepared, based on the factors set forth in s. 120.541(2); a statement that any person who wishes to provide the agency with information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative as provided by s. 120.541(1), must do so in writing within 21 days after publication of the notice; and a statement as to whether, based on the statement of the estimated regulatory costs or other information expressly relied upon and described by the agency if no statement of regulatory costs is required, the proposed rule is expected to require legislative ratification pursuant to s. 120.541(3). The notice must state the procedure for requesting a public hearing on the proposed rule. Except when the intended action is the repeal of a rule, the notice must include a reference both to the date on which and to the place where the notice of rule development that is required by subsection (2) appeared.
Special matters to be considered in rule adoption.—
Statement of estimated regulatory costs. Before the adoption, amendment, or repeal of any rule other than an emergency rule, an agency is encouraged to prepare a statement of estimated regulatory costs of the proposed rule, as provided by s. 120.541. However, an agency must prepare a statement of estimated regulatory costs of the proposed rule, as provided by s. 120.541, if:
The proposed rule will have an adverse impact on small business; or
The proposed rule is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate in this state within 1 year after the implementation of the rule.
Small businesses, small counties, and small cities.—
Each agency, before the adoption, amendment, or repeal of a rule, shall consider the impact of the rule on small businesses as defined by s. 288.703 and the impact of the rule on small counties or small cities as defined by s. 120.52. Whenever practicable, an agency shall tier its rules to reduce disproportionate impacts on small businesses, small counties, or small cities to avoid regulating small businesses, small counties, or small cities that do not contribute significantly to the problem the rule is designed to address. An agency may define “small business” to include businesses employing more than 200 persons, may define “small county” to include those with populations of more than 75,000, and may define “small city” to include those with populations of more than 10,000, if it finds that such a definition is necessary to adapt a rule to the needs and problems of small businesses, small counties, or small cities. The agency shall consider each of the following methods for reducing the impact of the proposed rule on small businesses, small counties, and small cities, or any combination of these entities:
Establishing less stringent compliance or reporting requirements in the rule.
Establishing less stringent schedules or deadlines in the rule for compliance or reporting requirements.
Consolidating or simplifying the rule’s compliance or reporting requirements.
Establishing performance standards or best management practices to replace design or operational standards in the rule.
Exempting small businesses, small counties, or small cities from any or all requirements of the rule.
(I) If the agency determines that the proposed action will affect small businesses as defined by the agency as provided in sub-subparagraph a., the agency shall send written notice of the rule to the rules ombudsman in the Executive Office of the Governor at least 28 days before the intended action.
Each agency shall adopt those regulatory alternatives offered by the rules ombudsman in the Executive Office of the Governor and provided to the agency no later than 21 days after the rules ombudsman’s receipt of the written notice of the rule which it finds are feasible and consistent with the stated objectives of the proposed rule and which would reduce the impact on small businesses. When regulatory alternatives are offered by the rules ombudsman in the Executive Office of the Governor, the 90-day period for filing the rule in subparagraph (e)2. is extended for a period of 21 days.
If an agency does not adopt all alternatives offered pursuant to this sub-subparagraph, it shall, before rule
adoption or amendment and pursuant to subparagraph (d)1., file a detailed written statement with the committee explaining the reasons for failure to adopt such alternatives. Within 3 working days after the filing of such notice, the agency shall send a copy of such notice to the rules ombudsman in the Executive Office of the Governor.
Hearings.—
1. If the intended action concerns any rule other than one relating exclusively to procedure or practice, the agency shall, on the request of any affected person received within 21 days after the date of publication of the notice of intended agency action, give affected persons an opportunity to present evidence and argument on all issues under consideration. The agency may schedule a public hearing on the rule and, if requested by any affected person, shall schedule a public hearing on the rule. When a public hearing is held, the agency must ensure that staff are available to explain the agency’s proposal and to respond to questions or comments regarding the rule. If the agency head is a board or other collegial body created under
s. 20.165(4) or s. 20.43(3)(g), and one or more requested public hearings is scheduled, the board or other collegial body shall conduct at least one of the public hearings itself and may not delegate this responsibility without the consent of those persons requesting the public hearing. Any material pertinent to the issues under consideration submitted to the agency within 21 days after the date of publication of the notice or submitted to the agency between the date of publication of the notice and the end of the final public hearing shall be considered by the
agency and made a part of the record of the rulemaking proceeding.
* * *
RULEMAKING RECORD.—In all rulemaking proceedings the agency shall compile a rulemaking record. The record shall include, if applicable, copies of:
All notices given for the proposed rule.
Any statement of estimated regulatory costs for the rule.
A written summary of hearings on the proposed rule.
The written comments and responses to written comments as required by this section and s. 120.541.
All notices and findings made under subsection (4).
All materials filed by the agency with the committee under subsection (3).
All materials filed with the Department of State under subsection (3).
All written inquiries from standing committees of the Legislature concerning the rule.
The Board’s interpretation of section 456.057(17), a statute it is charged with administering, is entitled to great deference. Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906, 908
(Fla. 2002); Bellsouth Telecomms., Inc. v. Johnson, 708 So. 2d 594, 596 (Fla. 1998). When an agency committed with authority to implement a statute construes the statute in a permissible
way, that interpretation must be sustained, even though another interpretation may be possible or even, in the view of some, preferable. Humhosco, Inc. v. Dep’t of Health and Rehab.
Servs., 476 So. 2d 258, 261 (Fla. 1st DCA 1985).
An agency is accorded broad discretion and deference in the interpretation of the statutes which it administers, and an agency's interpretation should be upheld when it is within a range of permissible interpretations and unless it is clearly erroneous. Pan Am. World Airways, Inc. v. Fla. Pub. Serv. Comm’n, 427 So. 2d 716 (Fla. 1983); see also Bd. of Podiatric Med. v. Fla. Med. Ass’n, 779 So. 2d 658, 660 (Fla. 1st DCA
2001).
An agency is empowered to adopt rules where there is both (1) a statutory grant of rulemaking authority, or statutory language explicitly authorizing or requiring the agency to adopt rules, and (2) a specific law to be implemented. Whiley v.
Scott, 79 So. 3d 702, 710 (Fla. 2011). The Legislature delegates rulemaking authority to agencies because agencies generally have expertise in the particular area for which they are given oversight. Id.
Courts have, historically, given deference to agencies based on agency expertise in the areas regulated. See, e.g.,
Wallace Corp. v. City of Miami Beach, 793 So. 2d 1134 (Fla. 1st
DCA 2001) (noting that an agency’s construction of a statute it is given power to administer will not be overturned unless clearly erroneous). Traditionally, agencies generally have more expertise in a specific area they are charged with overseeing, and courts have noted the benefit of the agency’s technical and/or practical experience in its field. Rizov v. Bd. of Prof’l Eng’rs, 979 So. 2d 979 (Fla. 3d DCA 2008).
Section 456.057(17) (paragraph 12 above) and section
458.309 (paragraph 13 above) provide the specific statutory authority and the law implemented for the proposed rule.
At hearing, Petitioners failed to present any persuasive evidence that proposed rule 64B8-10.003 is an invalid exercise of delegated legislative authority. The controlling statute 456.057(17), provides for two independent options: a practitioner “shall charge no more than the actual cost of copying, including reasonable staff time, or the amount
specified in administrative rule by the appropriate board, or department when there is no board.” (Emphasis added).
Respondent received a request for a rule revision.
Respondent acted on that request by holding multiple meetings and hearings to develop proposed rule language. Once the Board determined its course of action it followed the procedures to enact the rule.
The evidence fails to establish that the Respondent has exceeded its grant of rulemaking authority, or that the proposed rule enlarges, modifies or contravenes the specific provision of law being implemented. The evidence fails to establish that the proposed rule is vague, that it fails to establish adequate standards, or that it vests unbridled discretion in the agency. The evidence fails to establish that the proposed rule is an invalid exercise of delegated legislative authority, or is arbitrary or capricious as those terms are defined by section 120.52(8).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the proposed changes to rule 64B8-10.003 do not constitute an invalid exercise of delegated legislative authority. Accordingly, the petitions are DISMISSED.
DONE AND ORDERED this 8th day of December, 2015, in Tallahassee, Leon County, Florida.
S
LYNNE A. QUIMBY-PENNOCK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2015.
ENDNOTES
1/ In the “Relief Sought” section of Daniel R. Fernandez's Petition For Administrative Hearing Determining Invalidity of Proposed Rule; Dax J. Lonetto, Sr., PLLC's Petition for Administrative Hearing Determining Invalidity of Proposed Rule; and Florida Consumer Action Network, Inc.'s Petition for Administrative Hearing Determining Invalidity of Proposed Rule, the following was requested of the Division:
Conduct a formal hearing on this Petition pursuant to Sections 120.56, 120.569, and 120.57, Florida Statutes,
Enter a final order determining that the Proposed Rule is an invalid exercise of delegated legislative authority,
Award Petitioner its costs and attorneys' fees incurred in this proceeding, and
Provide such other relief as deemed appropriate.
The only difference (underlined below) between the above section of the “Relief Sought” in the Florida Justice Association’s Petition for Determination of Invalidity of BOM’s Proposed Medical Records Increase Rule is found in paragraph (b) which provides the following:
b) Enter a final order determining that the Medical Records Increase Rule is an invalid exercise of delegated legislative authority.
2/ Within this unopposed motion, the undersigned was advised that all the parties:
[a]greed to waive the 30-day hearing deadline established by Section 120.56(1)(c), Florida Statutes, and
agree that the final hearing date should be continued.
(See Respondent’s Motion to Abate, Continue and Consolidate, page 3, paragraph 7.)
3/ In BACTES’ Motion for Leave to Intervene, filed on April 16, the undersigned was apprised of the following:
Pursuant to Rule 28-106.204(3), F.A.C., the undersigned has conferred with David Caldevilla, counsel for Petitioners Daniel Fernandez, Dax J. Lonetto, Sr., PPLC and Florida Consumer Action Network, Inc., and is authorized to advise that such Petitioners consent to BACTES’ request to intervene. The undersigned also sent an email to counsel for the Florida Justice Association on April 9, 2015 inquiring as to its position on the relief requested in this motion, but has not yet received responses. Upon receipt, the undersigned will supplement this filing and advise as [sic] the Florida Justice Association’s position regarding the requested intervention. (Emphasis added).
On April 21, BACTES filed a Notice of Supplemental Conferral Regarding Bactes Imaging Solution, Inc.’s Motion For Leave To Intervene, and apprised the undersigned of the following:
Pursuant to Rule 28-106.204(3), F.A.C., BACTES Imaging Solutions, Inc. (“BACTES”) notifies the Court that following the filing of its Motion For Leave to Intervene on April 9, 2015, BACTES has conferred with the counsel for Florida Justice Association and is authorized to represent that Florida Justice Association does not object to BACTES’ request to intervene.
Consequently, none of the Petitioners object to the requested intervention. (Emphasis added).
In HealthPort’s Motion for Leave to Intervene, filed on April 23, the undersigned was apprised of the following:
As required by Rule 28-106.204(3), Florida Administrative Code, the undersigned attorneys for HealthPort have conferred with David Caldevilla and Scott R. Jeeves, counsel for Petitioners Daniel Fernandez, Dax J. Lonetto, Sr., PPLC, and Florida Consumer Action Network, Inc.: and G.C. Murray, Jr., counsel for Petitioner Florida Justice Association, all of whom have authorized the undersigned to represent that they have no objection to this Motion for Leave to Intervene, on the condition that the undersigned also represent that they reserve the right to later challenge HealthPort’s standing in this matter. The undersigned have also conferred with Edward Tellechea, counsel for Respondent State of Florida, Department of Health, Board of Medicine; and Michael Fox Orr, counsel for Intervenor BACTES Imaging Solutions, Inc., who have authorized the undersigned to represent that they support this Motion for Leave to Intervene.
In the FMA’s Motion for Leave to Intervene, filed on April 28, the undersigned was apprised of the following:
Per Rule 28-106.204(3), F.A.C., the
undersigned attorneys for the FMA have conferred with David Caldevilla, counsel for Petitioners Daniel Fernandez, Dax J. Lonetto, Sr., PPLC, and Florida Consumer Action Network, Inc., and G.C. Murray counsel for Florida Justice Association and is [sic] authorized to advise that such Petitioners consent to the FMA’s request to intervene. The Florida Justice Association reserved the right to later challenge the FMA’s standing in this matter. The undersigned have also conferred with Edward Tellechea, counsel for Respondent State of Florida,
Department of health [sic], Board of Medicine; with Michael Fox Orr, counsel for Intervenor BACTES Imaging Solutions, Inc.; and with Dan R. Stengle, Counsel for HealthPort Technologies, LLC, who have authorized the undersigned to represent their support for this Motion for Leave to Intervene.
4/ All admitted pages of the rule record from the multiple BOM meetings, public hearings and committee meetings were read. A chronologically concise rule record, without duplicates (duplicates were not read, but reviewed) would have been appreciated.
During the hearing, Petitioners voiced concerns over the status of objections interjected during the deposition of Mr. Newton. A review of that specific deposition does not reflect any “certified” questions for the undersigned to determine.
Each deposition was read. There were “certified questions” in the following depositions: Mr. Rohs; Mr. Probst; and Mr.
Bailey. The 21 certified questions were covered in the Protective Order.
5/ Respondent’s cross-noticed deposition transcript of Alan Pillersdorf, M.D., was inadvertently treated as a separate deposition, and not included with the original deposition transcript, Exhibit JT-9.
6/ Mr. Lonetto also has handled some long-term disability Employee Retirement Income Security Act claims, but they do not comprise a significant part of his practice.
7/ FCAN will go outside these four main areas if it believes it is a consumer issue; however, these four areas are FCAN’s mainstay.
8/ During the August 13, 2015, deposition of Mr. Bailey, Petitioners elicited that BACTES Imaging Solution, Inc., had, in August 2013, voluntarily surrendered its authority to transact business or conduct affairs in Florida. While there may be a paper trail that BACTES is not authorized to transact business or conduct affairs in Florida, during the 29 months of the Board’s committee hearings, Board meetings and workshops, BACTES’ was in fact conducting business in Florida.
9/ Section 456.057(18) was renumbered in 2013 to section 456.057(17) Florida Statutes. Petitioners, in a footnote on page 3 of their PFO averred that “[T] he parties agree that the statute being implemented is actually 456.057(17), not (18).”
Florida Administrative Code Rule 1-1.012,(4) provides: The rulemaking authority, law implemented and history notes shall be corrected or modified by writing a letter to the Administrative Code and Register Section. Such a change does not require notification in the Florida Administrative Register.
10/ The undersigned finds that the June 2014 RLC meeting did not constitute a full public hearing because the proposed rule was tabled without taking any testimony and rescheduled to be heard in South Florida.
11/ Section 120.541 provides the parameters of a statement of estimated regulatory costs.
12/ Ms. Dudley explained that the 1,419 physicians are part of an “active campaign.” The Board established a website, and physicians signed up to receive e-mail blasts from the Board.
However, physicians were not (and are not) required to join the active campaign.
COPIES FURNISHED:
David M. Caldevilla, Esquire de la Parte and Gilbert, P.A.
101 East Kennedy Boulevard, Suite 2000 Tampa, Florida 33602
(eServed)
Nicolas Q. Porter, Esquire de la Parte & Gilbert, P.A. Suite 2000
101 East Kennedy Boulevard Tampa, Florida 33602 (eServed)
Scott R. Jeeves, Esquire Jeeves Law Group, P.A.
954 1st Avenue, North
St. Petersburg, Florida 33705
Andre Christopher Ourso, Esquire Department of Health
Prosecution Services Unit Bin C-65
4052 Bald Cypress Way Tallahassee, Florida 32399-3265 (eServed)
Edward Alexander Tellechea, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed)
Jennifer A. Tschetter, General Counsel Florida Department of Health
Bin A02
4052 Bald Cypress Way Tallahassee, Florida 32399-1701 (eServed)
Rachel W. Clark, Esquire Office of the Attorney General Administrative Law Bureau
The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed)
Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050 (eServed)
Robert Antonie Milne, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 (eServed)
G.C. Murray, Jr., Esquire Florida Justice Association
218 South Monroe Street Tallahassee, Florida 32301 (eServed)
Amanda Eaton Ferrelle, Esquire Dawson Orr, P.A.
Suite 1675
50 North Laura Street Jacksonville, Florida 32202 (eServed)
Michael Fox Orr, Esquire Dawson Orr, P.A.
50 North Laura Street Jacksonville, Florida 32202 (eServed)
Marlene Katherine Stern, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed)
Mary Kathleen Thomas, Esquire Florida Medical Association 1430 Piedmont Drive East Tallahassee, Florida 32308 (eServed)
Martinique Emilia Busino, Esquire 954 1st Avenue North
St. Petersburg, Florida 33705 (eServed)
Jeffery Michael Scott, Esquire Florida Medical Association, Inc. 1430 East Piedmont Drive Tallahassee, Florida 32308 (eServed)
Cynthia A. Henderson, Esquire Cynthia A. Henderson, P.A.
2606 Thomasville Road
Tallahassee, Florida 32308
Dan R. Stengle, Esquire
Dan R. Stengle, Attorney, LLC
502 North Adams Street Tallahassee, Florida 32301 (eServed)
Ernest Reddick, Chief Alexandra Nam
Department of State
R. A. Gray Building
500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed)
Ken Plante, Coordinator Joint Admin Proced Committee Room 680, Pepper Building
111 West Madison Street Tallahassee, Florida 32399-1400 (eServed)
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 the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within
30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 02, 2017 | Mandate | |
| Apr. 11, 2017 | Opinion | |
| Dec. 08, 2015 | DOAH Final Order | Proposed rule is not an invalid exercise of delegated legislative authority. |
FLORIDA CONSUMER ACTION NETWORK, INC. vs DEPARTMENT OF HEALTH, BOARD OF MEDICINE, 15-001774RP (2015)
FLORIDA JUSTICE ASSOCIATION vs DEPARTMENT OF HEALTH, BOARD OF MEDICINE, 15-001774RP (2015)
DAX J. LONETTO, SR., PLLC vs DEPARTMENT OF HEALTH, BOARD OF MEDICINE, 15-001774RP (2015)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs KENNETH A. BERDICK, M.D., 15-001774RP (2015)
