c STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL FIREFIGHTERS OF ) FLORIDA, INC., JAMES B. JACKSON, ) DOMINICK F. BARBERA, and )

GARY RAINEY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2044RX

)

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tallahassee, Florida, on March 8, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioners: Mallory E. Horne, Esquire

Post Office Box 1149 Tallahassee, Florida 32302

For Respondent: George L. Waas, Esquire and

Charles T. Collette, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301 ISSUE PRESENTED

Administrative determination of the validity of those rules contained in Chapter 10D-66, Florida Administrative Code, which are cited in the Petition herein, pursuant to Section 120.56, Florida Statutes.

The parties stipulated at the hearing that the time for issuance of a final order herein would be extended until thirty (30) days after receipt of the hearing transcript by the Hearing Officer. The transcript was received on May 2, 1979.

On November 17, 1978, the Hearing Officer entered an order denying Respondent's motion to dismiss the Petition herein, which alleged that Petitioners, having participated in a Section 120.54(3) hearing on the rules in question, and later having requested a draw-out proceeding under Section 120.54(16), which Respondent granted but from which Petitioners later withdrew, were precluded from collaterally attacking the rule-making proceedings under

Section 120.56. The order denying the motion to dismiss was affirmed by the First District Court of Appeal in State of Florida, Department of Health and Rehabilitative Services v. Professional Firefighters of Florida, Inc., etc., 366 So.2d 1976 (Fla. 1st DCA 1979).

FINDINGS OF FACT

1. Petitioner Professional Firefighters of Florida, Inc. represents various public employee organizations which act as bargaining agents for firefighters employed by governmental entities in the State of Florida. In 1977, there were approximately seventy local unions with about 6,000 members, some of whom performed emergency medical services and advanced life support incident to their employment as emergency medical technicians. Petitioner Dominick Barbera is a lieutenant employed by the Dade County Fire Department and assigned to the Emergency Medical Services Division. He performs advanced life support functions in the course of his employment, but has not applied for certification as a paramedic. He testified that the challenged rules affected him in that if he did not obtain state certification, he would be relieved of his current duties which would prevent him from utilizing his training in the paramedic field and also affect him monetarily. Petitioner Gary Rainey is employed as a lieutenant with the Dade County Fire Department and performs advance life support functions on a rescue vehicle. He has not applied for state certification as a paramedic. No evidence was presented at the hearing concerning Petitioner James B. Jackson. (Testimony of Naples, Hoffman, Barbera, Rainey)

   
   

2. Prior to the passage of Chapter 77-347, 9, Laws of Florida, (Section 401.47, Florida Statutes) there was no statutory authority for the state certification of paramedics. However, a large number of state certified emergency medical technicians were performing advanced life support functions in connection with their employment with fire departments and hospitals. These individuals had obtained training in paramedic subjects such as defibrillation, administration of intravenous solutions, intubation, and the like. The 1977 Statute was enacted to provide for state certification of paramedics who met qualifications to be established by rules promulgated by Respondent. Section 8 of Chapter 77-347 required certification of providers of advanced life support services and required such providers utilizing paramedics to employ or contract with a licensed physician "medical director" to supervise and accept responsibility for the medical performance of EMT's and paramedics. (Testimony of Westmark)

   
   

3. In 1946, Respondent began administering voluntary examinations to those emergency medical technicians who had received training as paramedics at various places around the state. These individuals were called Emergency Medical Technicians II. Individuals who successfully passed the examination were provided a certificate that they had "demonstrated ability as an Emergency Medical Technician II by successfully completing the Florida Emergency Medical Technician II Certification Examination." In March 1977, one of Respondent's officials told a State Legislative Committee that the examinations were only "pilot" examinations to gather information to be used if legislative authority was obtained to certify individuals in the paramedic field. As a result of this information, Professional Firefighters of Florida, Inc. advised its membership that the examinations were not legally authorized, and some members did not take the examination but others did. The rules promulgated by Respondent in Chapter 10D-66, Florida Administrative Code, to implement the 1977 paramedic statute provided that those who had taken the prior examination could be certified as paramedics if otherwise qualified without any further examination. Over 1,000

   of those technicians who had taken the earlier examination have since been certified as paramedics by Respondent. The subject matter, degree of difficulty, and grading system of the new certification examinations are essentially the same as the prior examination. (Testimony of Hoffman, Westmark, Rainey, Petitioners1 Exhibit 2-3, 5)

   
   

4. The new law concerning paramedics provided that Respondent, prior to Chapter 120 public hearings on its proposed rules, consult with employees performing advanced life support services and certified by a licensed physician or local medical society, and who represented no less than nine public employers. Although petitioners testified that the firefighters belonging to their organization were not consulted in this regard even after affirmatively offering to do so by letter to the secretary of Respondent department, Respondent, in fact, conducted workshops and other meetings at various places in the state where employees representing more than nine public employers were consulted on draft proposed rules of the department. (Testimony of Naples, Hoffman, Westmark, Petitioners' Exhibit 4, Respondent's Exhibits 1-2, 4)

   
   

5. Respondent's intent in requiring recertification of paramedics annually as set forth in Rule 10D-66.39 is to treat such a procedure as a license renewal upon payment of an annual fee. Its requirement in Rule 10D-66.41(1) concerning staffing of patient compartments of transporting vehicles by at least two qualified personnel in emergency situations is designed to provide flexibility in staffing, dependent upon the advice of a supervising physician. The requirement in Rule 10D-66.39(1)(e) concerning required age of 18 for certification as a paramedic, but still requiring one year experience as an emergency technician who also must be 18 for certification, is designed to qualify a possible candidate from another state which permits certification as an EMT at an earlier age. (Testimony of Westmark)

   
   

6. Petitioner Barbera performs duties in advanced life support under the supervision of a hospital emergency room physician. The medical director for the Dade County Fire Department is also the director for the City of Hialeah and Santa Rosa County. He establishes the procedures to be followed by emergency medical personnel and has given group training sessions to them in the past. However, he has never given personal instructions to Petitioner Barbera with respect to actual rescue actions. Both Petitioner Barbera and Petitioner Rainey are "certified" by the Dade County Fire Department to act as a paramedic based on training in advanced life support. Rainey also works under the instructions of a physician but has never been given specific instructions on a particular case by the director. Both Petitioners testified that advanced life support cannot be administered to a patient by only one qualified individual. About sixty percent of the rescue calls received by the fire department require advanced life support procedures to be undertaken. (Testimony of Barbera, Rainey)

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 120.56, Florida Statutes, provides that any person "substantially affected" by a 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. Respondent filed a prehearing Motion to Dismiss the Petition herein on the ground that Petitioners lack standing to challenge the departmental rules in question. In essence, Respondent contends that Petitioners have not shown any immediate and substantial injury accompanied by continuing, present adverse effects either at the time the Petition was filed or at the time of the hearing, and thus have not met the "substantially

   affected" criterion of the statute. In support of this claim, Respondent cites Dept. of Offender Rehab. v Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), State Dept. of Health and Rehabilitative Services v Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979), and School Board of Orange County v. Blackford, So.2d (Fla. 1st DCA, Case No. LL-94, opinion issued April 19, 1979).

   
   

8. Petitioner Professional Firefighters of Florida, Inc. maintains that Respondent is estopped from asserting lack of standing as to it because the organization was granted a Section 120.54(16) proceeding by Respondent in 1978. The request was later withdrawn, however, and proceedings under that provision were not conduced. Aside from the fact that the "substantial interest" of a party necessary to trigger a Section 120.54 (16) proceeding may be somewhat less that that required to invoke jurisdiction under Section 120.56, the two types of proceedings are distinct and separate in nature and, in fact, no hearing under Section 120.54 (16) was ever held. Accordingly, this argument is considered to be without merit. Petitioner claims that the organization and some of its membership who are emergency medical technicians performing paramedic functions, including petitioners Rainey and Barbera, are directly and substantially affected by the challenged rules because they constitute regulation of the field in which they are practicing and pervasively govern their livelihoods. Petitioner Barbera asserts that if he does not take the certification examination under the new rules, he will be relieved from his present paramedic duties, which will affect him monetarily. Additionally, Petitioner organization contends that it was misled by Respondent as to the "pilot" nature of the pre- rule examinations, and consequently erroneously informed its membership that they should not be concerned about taking the examination.

   
   

9. The petition challenging the rules alleges that Respondent failed to comply with Section 401.47(1), Florida Statutes, by failing to consult with a requisite number of employees of public employers prior to Chapter 120 public hearings on proposed rules for certification of paramedics. It further alleges that:

   
   

   1. Respondent has no statutory authority to require recertification of paramedics as proposed in Rules 10D-66.39(2)(b) and (3)(b),

      1. and (d).

         1. Respondent has no authority to "grandfather" paramedics by Rule 10D-66.39 (1)(b) which permits emergency medical technicians who had passed the pre-rule examination to be certified as paramedics without further examination, if otherwise qualified.

         2. Respondent cannot exercise its discretion in certifying qualified individuals as paramedics by the use of the word "may" in

            Rule 10D-66.39(1)(b) and (3) because Section 401.47(2) provides that Respondent "shall" issue such certification to qualified candidates.

         3. Respondent's Rules 10D-66.39(e) and

            10B-66.36(2)(b) are confusing and inconsistent since the former provision requires a paramedic candidate to he at least eighteen years of age and have successfully performed as an emergency medical technician for one

            year prior to taking the paramedic certification examination, whereas the latter rule provision specifies that an applicant for certification as an emergency medical technician must be at least eighteen years of age at the time he submits his application.

         4. Rules 10D-66.4l(1)(j), (k), and (l) are conflicting and provide insufficient staffing of vehicles transporting "unstable" patients to an emergency facility.

      (f) Rules 10D-66.41(l)(m) and (2)(d)(9) which provide that an advanced life support provider shall assure the competence of each of its paramedics and that the medical director of such provider should retain ultimate authority to permit or prohibit any paramedic to utilize advanced life support techniques constitute an unlawful delegation of authority by Respondent of its statutory functions to determine competency of such individuals.

      
      

10. As stated by the Court in State Department of Health and Rehabilitative Services v. Alice P., supra, on the issue of standing ". . .the Florida law on the subject has been clearly and unambiguously settled by this court's opinion (which the Respondents characterize as a 'somewhat restrictive view') in Florida Department of Offender Rehab. v. Jerry. . ." In Jerry, the Court held that one challenging an existing rule must show injury which is accompanied by continuing present adverse effects either at the time the rule challenge is filed or at the time of hearing. The Court further found that Jerry could not predicate standing on the possibility that he later might be subjected to the rule in question which dealt with disciplinary offenses committed by inmates. In this regard, the Court stated:

    
    

    Whether this will occur, however, is a matter of speculation and conjecture and we will not presume that Jerry, having once committed an assault while in custody, will do so again.

    To so presume would result only in illusory speculation which is hardly supportive of issues of "sufficient immediacy and reality" necessary to confer standing.

    
    

    It is clear, therefore, that the Court has set stringent standards for attainment of standing in a Section 120.56 proceeding. Petitioners herein have failed to establish injury of "sufficient immediacy and reality" to meet such standards. The Professional Firefighters of Florida, Inc. merely alleged in the petition that some of its members are regulated by the challenged rules and that the organization is charged with the responsibility of representing their interests. Such an allegation, without more, is insufficient to confer standing, and no evidence was presented at the hearing to establish that the nonprofit corporation or any of its membership has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged rules. As heretofore stated, the claim that Respondent previously granted standing to the organization by accepting its request for a proceeding under Section 120.54(16) during the rule-making process, and therefore is estopped from challenging standing in the instant proceeding, cannot be recognized.

11. Petitioners Barbera and Rainey maintain that if they do not become certified under the contested rules, they will be unable to continue performing paramedic functions incident to their employment. Undoubtedly, denial of an application for certification as a paramedic pursuant to the challenged rules would constitute a sufficient injury to confer standing to challenge the propriety of such rules. However, Petitioners have neither applied for certification nor have they alleged or established that anything in the challenged rules would disqualify them from certification. It is clear that they are dissatisfied with some of the rule provisions which would govern them if and when they were regulated thereunder after certification, but at the present time, the only injury that they possibly face is the statutory prohibition in Section 401.47(4) against holding oneself out as a paramedic without having obtained certification. Again, no evidence has been shown that such a likelihood is imminent, and, in any event, there can be no basis for complaint in that respect until adverse action is taken by Respondent on a license application. Petitioners' attacks on those rules which govern certified paramedics cannot be acknowledged because they are not presently in the class of licensees regulated by the rules. It is true that Respondent has certified a large number of paramedics under its Rule 10D-66.39 which permitted individuals who had successfully completed the pre-rule examination to become certified if otherwise qualified without taking an additional examination. Petitioners, however, have not alleged or established that they have suffered any injury by reason of the fact that they did not take the prior examination because of misleading information from the Respondent. For instance, there has been no showing that their ability to become certified will in any way be impaired by the fact that others in their position were certified without further examination. Absent such a showing, any challenge to the validity of the rule by virtue of the contention that such prior examinations were unauthorized cannot be maintained by these Petitioners.

    
    

12. No evidence was presented at the hearing concerning Petitioner James

    B. Jackson, and, accordingly, there is no basis for finding that he has standing to contest the rules.

    
    

13. It is determined that Petitioners herein have failed to establish standing to challenge the rules in question. It is therefore considered unnecessary to address the allegations concerning invalidity of the rules. The Petition is dismissed.

    
    

14. The proposed final orders submitted by the parties have been fully considered and those portions thereof relating to standing which have not been incorporated herein are considered to be unwarranted under the facts and law of the case.

DONE and ORDERED this 23 day of May, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

George L. Waas, Esquire Charles T. Collette, Esquire Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Mallory E. Horne, Esquire Post Office Box 1149 Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32301

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DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, DEPARTMENT NOT FINAL UNTIL TIME EXPIRES OF HEALTH AND REHABILITATIVE TO FILE REHEARING PETITION AND SERVICES, DISPOSITION THEREOF IF FILED

Petitioner, CASE NO. MM-96

DOAH CASE NO. 78-2044RX

vs.

PROFESSIONAL FIREFIGHTERS OF FLORIDA, INC., JAMES B. JACKSON: DOMINICK F. BARBERA:

and GARY RAINEY,

Respondent.

/ Opinion filed February 9, 1979

Petition for Review of an Order of the Department of Health & Rehabilitative Services - Original Jurisdiction.

George L. Waas and Charles T. Collette, for Petitioner.

Mallory Horne, Edward S. Jaffry and Judson N. Chapman, of Horne, Rhodes, Jaffry, Stephens, Bryant Horne and Chapman; and Thomas Oldham, for Respondents.

ERVIN, J.

The Department of Health and Rehabilitative Services petitions for review of intermediate agency action in the form of an order of a hearing officer of the Division of Administrative hearings, Department of Administration, denying the Department's motion to dismiss respondents' rule-challenge petition pursuant to 120.56, Fla. Stat. (1977). Respondents contend that the Department has adopted an illicit rule on the ground that it is an invalid exercise of delegated legislative authority. The Department answers that respondents, having participated in a 120.54(3) hearing on the proposed rule chapter, and later having requested a draw-out under 120.54(16) which HRS granted, but from which respondents later withdrew, are now precluded from collaterally attacking the rulemaking proceedings under 120.56, and rely upon State Dept. of Health, etc. v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978).

We agree with respondents that the facts in Barr are not analogous and therefore not controlling. In Barr, certain parties participated in a 120.565 proceeding following which the agency issued a declaratory statement. Later, three of the parties who were within the class purportedly represented before the hearing officer petitioned the court for direct review of the declaratory statement, but then voluntarily dismissed the petition in order to initiate a collateral attack in 120.56 proceedings. We granted the motion to dismiss the rule-challenge proceedings on the ground that the APA does not permit hearing officers "collateral review power over final agency action taken after regular proceedings under other provisions of the Act." Id. at 505.

The relief initially sought in Barr by respondents - a declaratory statement - is altogether different from the rule-making proceedings respondents participated in here. "A declaratory statement is a means for determining the rights of parties when a controversy, or when doubt concerning the applicability of any statutory provision, rule or order has arisen before any wrong has actually been committed." Fla. Admin. Code Rule 28-4.05. A declaratory statement adjudicates rights, cf., School Bd. of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); it is "final agency action" and "reviewable in the same way as orders entered in Section 120.57 proceedings . . ." State Dept. of Health, etc. v. Barr, supra, at 505. A rule-making proceeding, authorized by 120.54(3), on the other hand, allows "affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform [the agency] of their contentions." As we stated in Balino v. Dept. of Health and Rehabilitative etc., 362 So.2d 21, 24 (Fla. 1st DCA 1978), the purpose of a rule-making hearing under 120.54(3) is two-fold:

1. To allow the agency to inform itself of matters bearing on the proposed rules or modifications thereof, and

2. To allow the public, and specifically individuals and groups having particular interests and/or information, to participate in the rule-making process. The hearing is of a quasi-legislative, information-gathering type, which in theory at least, does not adjudicate the rights of any particular

individual. (e.s.) (footnotes omitted.)

The Balino opinion continued that the hearing afforded by 120.54(3) is not an adversary proceeding and that the agency has no right to protect itself from evidence or argument which may be unfavorable. Id.

We conclude that respondents' participation in 120.54(3) rule-making has no res judicata effect on their right to collaterally attack the rule by a 120.56 petition. Nor does the fact that respondents filed a request for a draw-out, permitted by 120.54(16) - later withdrawn before the draw-out proceedings were conducted - preclude them now from the relief they seek. Section 120.54(16) permits the agency, if it determines a rule-making hearing is not adequate to protect the substantial interests of a person, to suspend rule-making and convene a separate proceeding under the provisions of 120.57. No such hearing was held, however, and the agency's permission of a party's request for same is clearly not final agency action to which principles of res judicata or collateral estoppel apply.

The remaining points urged by the Department for reversal are without merit. The petition for review of non-final administration action is DENIED, and the order denying the motion to dismiss AFFIRMED.

MILLS, Acting Chief Judge and BOOTH, J., CONCUR.

Docket for Case No: 78-002044RX

Orders for Case No: 78-002044RX