STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE FLORIDA PSYCHIATRIC SOCIETY, ) INC. AND JOHN L. MASON, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 78-2184RP

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on December 18, 1978, in Tallahassee, Florida. The parties agreed that the hearing would officially close on the date of the receipt of the last filing of the parties' memorandum of law, which occurred on January 31, 1979.

APPEARANCES

For Petitioners: Kenneth F. Hoffman

Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872

Tallahassee, Florida 32302

Michael W. Dugger Post Office Box 10106

Tallahassee, Florida 32302

For Respondent: James G. Mahorner

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

1. Pursuant to the provisions of Florida Statutes, s120.54(4), petitioners timely filed their petition challenging the validity of the respondent's proposed rules 10D-73 and 10E-4.12(8)(b)(4). Proposed rule 10D-73 contains extensive provisions relating to the development, licensure and operation of two alternatives to inpatient care facilities to be known as crisis stabilization facilities and intensive residential treatment facilities. Proposed rule 10E- 4.12(8)(b)(4) expands an existing rule relating to Baker Act funding by establishing the fiscal management and funding process for the two alternative facilities proposed by Rule 10D-73. 1/

2. A summarization of the contents of the proposed rules at the outset of this Order will be helpful. The rules encompass over fifty legal-sized pages, and only a very brief description is contemplated herein. Rule 10D-73 provides for two alternatives to inpatient care units for those persons requiring care and treatment under the provisions of the Florida Mental Health Act, also known as the Baker Act. The first such alternative is referred to as a crisis stabilization facility. Its purpose is to provide, for a period not to exceed

   120 hours, assessment, screening, emergency evaluation, temporary shelter and crisis-oriented treatment as needed to clients who are acutely emotionally disturbed and who need immediate care. 2/ The second alternative is to be known as an intensive residential treatment facility which will provide short- term (up to 25 days) intensive residential care and treatment services to acutely disturbed, mentally ill individuals. The proposed rules contain extensive regulations concerning drugs and pharmaceutical services at these facilities (Rule 10D-73.023); the governing board (10D-73.024), administrative management and record-keeping requirement of each facility (Rule 10D-73.025); and personnel standards (Rule 10D-73.027). Proposed Rule 10D-73.026 requires each facility to be licensed and the licensing procedure is set forth in Rule 10D-73.028. The required services; reception, screening, admission and treatment policies; staffing; physician services; and facility requirements for the crisis stabilization facility are extensively set forth in proposed Rule 10D-73.03 through 10D-73.07. Among other requirements, these rules mandate 24- hour services, initial physical assessments by staff members, examination by a physician within 24 hours of admission, access to a security room, a minimum of

   15 beds and compliance with the 1967 Life Safety Code for residential occupancy.

   
   

3. The required services, admission and treatment policies, staffing, physician services and facility requirements for the intensive residential treatment facility are set forth in proposed Rules 10D-73.11 through 10D-73.15. According to the proposed rules, clients are not admitted directly to such facilities, but are referred from other facilities, clinics or hospitals, or by court order. Security is to be minimal and the facility may only provide treatment for a maximum of 25 days. The same physician examination within 24 hours, 15 bed limitation and Life Safety Code requirements exist for intensive residential treatment facilities as for crisis stabilization units. As specific authority for proposed Rule 10D-73, as well as the law being implemented, the Department cites the general rule-making authority of the Department contained in Florida Statutes, s381.031(1)(g)(11); portions of the Baker Act (Chapter 394, Part I); a portion of the Community Mental Health Act (F.S. s394.78(1)(2)(b)); and portions of Chapter 400, Florida Statutes, relating to nursing home and related health care facilities. Although not cited in the proposed rules, the Department also relies upon the Appropriations Act of 1978, Item 616 (Laws of Florida, Ch. 78-401).

   
   

4. Proposed Rule 10E-4.12(8)(b)(4), as mentioned above, contains extensive and detailed provisions for the State payment, release and expenditure of start- up funds for those facilities defined and licensed by proposed Rule 10D-73 and for pilot alternative programs not conforming with Rule 10D-73. This rule makes it the responsibility of the district mental health boards to plan, budget, monitor and coordinate alternatives to inpatient care in their respective board districts and sets forth the methods for so doing. The specific authorities cited by the Department for its proposed Rule 10E-4.12(8)(b)(4) are the rule- making requirements of the Baker Act (F.S. s394.457(5)); similar requirements under the Community Mental Health Act (F.S. s394.78(1) and (2)) and the general rule-making powers of the Department (F.S. s381.031(1)(g)(11)). The law being implemented by proposed Rule 10E-4.12(8)(b)(4), according to the Department, are

   two provisions of the Baker Act (F.S. ss394.66(1) and (2) and 394.457(1) and (2). The Department further relies upon the Appropriations Act of 1978, Item 616, although this is not cited in the proposed rule.

   
   

5. The petitioner Florida Psychiatric Society, Inc. is a nonprofit scientific organization and a branch of the American Psychiatric Association. Its objectives include improving the treatment of the mentally ill, advancing the standards of all psychiatric services and facilities and promoting the best interests of patients and those making use of mental health services. Petitioner John F. Mason, Jr. has been practicing psychiatry for some eleven years, has evaluated and admitted patients under the Baker Act, and is chairman of the Baker Act Committee of the Florida Psychiatric Society. The undersigned finds and so concludes that the petitioners have adequately demonstrated that they are substantially affected persons within the meaning of Florida Statutes, s120.54(4), so as to give them standing to challenge the proposed rules in question herein.

   
   

6. The petitioners have alleged that proposed Rules 10D-73 and 10E- 4.12(8)(b)(4) are without legislative authority, are contrary to specific provisions of the Baker Act and are supported by inadequate economic impact statements. As to the latter contention relating to the economic impact statements, petitioners presented no evidence at the hearing.

   
   

7. Petitioners first contend that the Department of Health and Rehabilitative Services has no authority, neither legislative nor inherent, to require a permit or a license for the crisis stabilization or the intensive residential treatment units created by the proposed rules. A thorough review of the pertinent statutes and case law on the subject leads the undersigned to agree with this contention.

   
   

8. As a basis for enacting the rules being considered herein, and particularly the licensing provisions of proposed Rule 10D-73, the Department asserts as its authority four statutory provisions. Florida Statutes, s381.031(1)(g)(11) contains the general powers and duties of the Department and includes the adoption of rules "consistent with law regulating the execution of any other purpose or intent of the laws enacted for the protection of the public health of Florida." It appears to this writer, as it did to the First District Court of Appeal in Lewis v. Florida State Board of Health, 143 So.2d 867 (Fla. App. 1st, 1962), that the key words in the cited provision above are those which are underlined; to wit: "of the laws enacted." This interpretation is buttressed by a later subsection of s381.031, which specifically provides that

   
   

   ". . . nothing herein shall be construed to authorize the department to require a permit or license, unless such requirement is speci- fically provided by law." F.S. s381.031(1)(h).

   
   

   Thus, absent some specific statutory authority requiring the Department to license the proposed facilities, the Department cannot gain its authority for such licensing through the general provisions contained in s381.031(1)(g)(11)

   
   

9. For this more specific authority, the Department cites in its proposed rules various provisions of Florida Statutes, Chapter 400, Part I (Nursing Homes) and Chapter 394, Parts I (Baker Act) and IV (Community Mental Health Services). A careful review of Chapter 400, Parts I, reveals that there is no authority therein to license or otherwise regulate the type of facilities proposed by the rules challenged in this proceeding. First, the Nursing Home

   statutes were enacted in 1969 and amended in 1970, at least one year before the Baker Act was passed. It would be illogical to conclude that Baker Act programs can later rely upon nursing home statutes for licensing authority. Second, and more persuasive, is the very language contained in Chapter 400. The purpose of Chapter 400 is to provide for the development and enforcement of basic standards for the health, care and treatment of persons in nursing homes and related health care facilities. F.S. s400.011. A "facility" is defined to mean

   
   

   "any . . . place . . . which undertakes

   . . . to provide for a period exceeding 24-hour nursing care, personal care, or custodial care for 3 or more persons

   who by reason of illness, physical informity, or advanced age require such services, but shall not include any place providing care and treatment primarily for the acutely ill." F.S. s400.021(4).

   
   

   Contrasted with this language is the expressed intent of the Baker Act to implement programs to assist persons with "mental, emotional and behavioral disorders," F.S. s394.453. Further, as noted by the above-quoted language, the facilities licensed under Chapter 400 do not include places providing care and treatment for the acutely ill. Much of the testimony adduced at the hearing was devoted to the issue of whether the illnesses of patients receiving services under the Baker Act are of a chronic or an acute nature. The testimony established that while the majority of mental, emotional and behavioral illnesses are of a chronic nature, patients who find themselves subject to the provisions of the Baker Act are primarily experiencing acute manifestations or exacerbations of the illness and therefore are in an acute or immediate state.

   Indeed, the respondent's own proposed rules provide that the facilities sought to be licensed are specifically for those "who are acutely emotionally disturbed and who need immediate care." (Rule 10D-73.021(A)). Proposed rule 10D- 73.022(D)(3) provides for crisis support for "persons in such acute distress that their capacity to cope with their life circumstances has been suddenly and completely exceeded." A careful reading of the proposed rules leaves no doubt as to the "acute" care purposes of the facilities provided by the proposed rules. As such, they are specifically excluded for licensure or regulation under the auspices of Chapter 400, Part I.

   
   

10. This then leaves us with Chapter 394. As specific statutory rule- making authority for the licensing requirements of its proposed rules, the Department cites, in addition to Ch.400 and the general provisions of s381.031 as discussed above, Sections 394.457(5) and 394.78(1)(2)(b). Without citing the same in the proposed rules, the Department also relies upon the Appropriations Act of 1978, Item 616, (Ch. 78-401, Laws of Florida). Various other provisions of the Baker Act are cited as the law being implemented, interpreted or made specific. A careful reading of the Baker Act ss394.451 through 394.4781, nowhere reveals legislative authority for the licensing of separate units known as crisis stabilization facilities or intensive residential treatment facilities. Section 394.457 merely sets forth the responsibilities of the Department and authorizes it to establish rules and regulations necessary for the administration of the Baker Act. Nothing therein authorizes the licensing of the proposed facilities. The legislative intent, Section 394.453, only authorizes the Department "to implement and administer mental health programs as authorized and approved by the Legislature, based on the department's annual program budget." Inasmuch as no State agency has inherent powers, but has only those powers specifically granted by statute, this language must be interpreted

    to mean that the respondent may only implement and administer those programs authorized and approved by the Legislature. The additional language in the above quote must be interpreted to mean that the implementation and administration of such authorized programs are to be based on the Department's annual budget. The undersigned Hearing Officer cannot accept the Department's converse contention that its annual budget provisions relating to the proposed facilities (which were apparently given funding under Item 616 of the 1978 Appropriation Act) give it authority to implement and license such facilities. An appropriations act cannot be used to make law on other subjects or give an agency authority to establish and license programs not otherwise authorized by substantive law. Advisory Opinion to the Governor, 239 So.2d 1 (Fla. 1970); Dickinson v. Stone, 251 So.2d 268 (Fla. 1971); Dept. of Administration v. Horne,

    269 So.2d 659 (Fla. 1972). This holding in no way attempts to apply to, nor does the Hearing Officer have jurisdiction to rule upon, the constitutionality of Item 616 of the Appropriations Act of 1978. Indeed, the testimony indicates that at least some of the pilot programs for which funding was obtained are licensed or certified as hospitals or facilities within the meaning of the Baker Act. The conclusion reached is simply that the Department cannot rely upon its annual budget or Item 616 as authority for the establishment, regulation and licensing of independent crisis stabilization and intensive residential treatment facilities.

    
    

11. That the Department presently lacks legislative authority to establish, regulate and license the two facilities in issue is further exemplified by F.S. s394.4781. There, the Legislature specifically provided for residential care for psychotic or severely emotionally disturbed children, authorized the Department to promulgate rules pursuant thereto and mandated the Department to administer a purchase-of-services program and to purchase services only from those facilities which are in compliance with standards promulgated by the Department. While s394.4781 is not a license authorizing statute, it is indicative of the type of legislative expression necessary for extensive rules and regulations concerning the establishment, regulation and funding of new and independent facilities which will receive, evaluate, treat and/or hospitalize patients within the ambit of the Baker Act. Another example can be seen in Chapter 397 of the Florida Statutes. There, the Department is given specific authority to license drug abuse treatment and education centers, and regulate the same through the licensing and revocation process. F.S. ss397.081 through

    397.085. Again, the provisions of F.S. s381.031(1)(h) are controlling: to wit: the Department is not authorized to require a permit or a license unless such requirement is specifically provided by law.

    
    

12. Without authority to establish licensing requirements for the two facilities in issue, the question lingers as to whether the remaining portions of the proposed rules are valid. The petitioner points to various conflicts between the proposed rules and specific statutory law contained both in the Baker Act and other chapters of the Florida Statutes. However, the undersigned finds it unnecessary to discuss these contentions. Having no authority to license these facilities, the Department likewise has no authority to create and establish new, independent facilities under the guise of the Baker Act or the nursing home statutes. The undersigned finds, and so concludes, that the remaining portions of proposed Rule 10D-73 are so intertwined with the creation and licensing (and therefore enforcement) provisions of the rule that they too must be declared invalid for lack of statutory authority. The Baker Act gives the Department authority to "implement and administer" mental health programs as authorized and approved by the Legislature. F.S. s394.453. It does not give the Department authority to establish new projects and facilities and then regulate the same through licensing. This would amount to the creation of

    substantive law, which only the Legislature may undertake. While the Department is charged with the responsibility of establishing standards for mental health programs (s394.457 (2)), this charge refers to the programs which are otherwise lawfully authorized and approved by the Legislature.

    
    

13. Insofar as proposed rule 10E-4.12(8)(b)4 relates to the payment of state funds to those facilities defined by and licensed in accordance with proposed rule 10D-73, it too must fail for lack of legislative authority.

    
    

14. There is no doubt that alternatives to inpatient care for the mentally ill are laudable and needed. However, the need for such alternatives cannot be met by the Department without legislative authority. The Department has not been granted the authority to create, regulate and control the programs sought to be implemented by the proposed rules. It cannot of its own volition establish and regulate facilities without the proper grant of authority. As stated in Lewis v. Florida State Board of Health, 143 So.2d 867, at 877 (Fla. App. 1st 1962):

"This is not a case where the legislature

has attempted to delegate its responsibilities to a board. It is simply a case where a board has decided that a field is open for regulation, has lassoed this field, and then looked for authority upon which to hold on to its prize steer. To hold that boards may invade the

legislative field upon such dubious authority would in our opinion, be another step towards government by bureaucracy and the abolition of the legislative branch."

In conclusion, it is found that the respondent's proposed Rules 10D-73 and 10E-4.12(8)(b)(4) lack legislative authority and are therefore invalid.

Done and ordered this 28th day of February, 1979, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ The rules and economic impact statements as originally noticed by the Department were received into evidence as Exhibits 2 and 3. On the date of the hearing, the Department filed with the Hearing Officer non-substantive amendments to the proposed rules and more detailed economic statements. The references in this Order to the specific subsections of the proposed rule refer to the numbering contained in the originally noticed rules, received into evidence as Exhibits 2 and 3.

2/ The amended version of the proposed rules submitted at the hearing define the purpose of such services to be for "primarily chronically mentally ill

individuals who are in an acutely disturbed state and who may require care and treatment under Chapter 394, Part I, Florida Statutes."

COPIES FURNISHED:

Kenneth F. Hoffman

Rogers, Towers, Bailey, Jones and Gay

Post Office Box 1872 Tallahassee, Florida 32302

Michael W. Dugger Post Office Box 10106

Tallahassee, Florida 32302

James G. Mahorner Assistant General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree

Secretary, Department of HRS 1323 Winewood Boulevard

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 - Holland Building Tallahassee, Florida 32304

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32304

Docket for Case No: 78-002184RP

Orders for Case No: 78-002184RP