STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAN MCTIGUE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-629RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on June 25, 1979. The parties were represented by counsel:

APPEARANCES

For Petitioner: Catherine B. Tackney, Esquire

Post Office Box 3431

Ft. Pierce, Florida 33450

For Respondent: George L. Waas, Esquire

1321 Winewood Boulevard

Tallahassee, Florida 32301

By petition for administrative determination of rules filed March 19, 1979, petitioner challenges Rules 10D-36.21(2) and 10D-36.22(1)(a)2,, Florida Administrative Code, as invalid exercises of delegated legislative authority.

FINDINGS OF FACT

1. Petitioner attended a two year training program for physician's assistants at the State University of New York in Stonybrook. In the course of this program, petitioner spent ten weeks in an obstetrics rotation. During this ten week period, she delivered at least fifteen babies. She also attended mothers post partum.

   
   

2. After moving to Florida, petitioner applied to respondent for a license as a lay midwife. Although she has approached more than ten obstetricians practicing in Florida, she found none willing to supervise her work as a midwife. In support of her second application for license as a lay midwife, petitioner attached a letter signed by Elspeth Reagan, M.D., and another, reciting that petitioner "performed approximately 15-20 normal, spontaneous deliveries under physician supervision and assisted with numerous others." Dr. Reagan's signature had been acknowledged before a notary public. Dr. Reagan is licensed as a physician in New York but is not licensed in Florida. Petitioner

   did not furnish respondent a list of the names, home addresses or delivery dates of any of the deliveries she performed.

   
   

3. On December 4, 1978, respondent denied petitioner's second application on the grounds that it did "not conform to the requirements of . . . Chapter 10D-36.21(2) . . . . [or of] Chapter 10D-36.22(1)(a)2.

   
   

   CONCLUSIONS OF LAW

   
   

4. Because respondent relied on Rules 10D-36.21(2) and 10D-36.22(1)(a)2., Florida Administrative Code, in denying petitioner's application for licensure as a lay midwife, petitioner is substantially affected by these rules, within the meaning of Section 120.56, Florida Statutes (1978 Supp.).

   
   

5. Respondent adopted both of the challenged rules in an effort to implement Section 485.051, Florida Statutes (1977)("Department . . . may make such rules and regulations as it may deem necessary for regulating the practice of midwifery") The pertinent statutory criteria for licensure as a lay midwife appear in Section 485.031(4)(b), Florida Statutes (1977), which requires that the applicant

   
   

   [h]ave attended under the supervision of a duly licensed and registered physician not loss than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during laying-in period

   of at least 10 days each; and shall possess a written statement from said physician that she has attended such cases in said

   15 cases, with the date engaged and

   address of each; and that she is reasonably skilled and competent and establish the fact that she is reasonably skilled and competent to the satisfaction of the department. . . . .

   
   

   For purposes of these statutory requirements, Rule 10D-36.21(2), Florida Administrative Code, defines physician as "a person who shall have been duly licensed in Florida to practice medicine or osteopathy." Petitioner contends that respondent has no authority to restrict the meaning of the statutory phrase "duly licensed and registered physician" by adopting a rule requiring that the physician be licensed and registered in Florida.

   
   

6. In support of the contrary view, respondent cites an attorney general's opinion, AGO 049-35. In discussing the question "[w]hether osteopathic

   physicians may sponsor an applicant for a license to practice midwifery " AGO 049-35 interpreted the predecessor to Section 485.031, Florida Statutes (1977), stating:

   
   

   The real question involved here . . . is what interpretation is to be given to the word "physician." Is it to be limited to the narrow meaning as provided for in Chapter 458, Florida Statutes, 1941 [Medical

   Practice Act], or the broad meaning ordinarily used to denote a person qualified and

   authorized to prescribe remedies for diseases.

   * * *

   [T]he legislature did not intend to limit

   or repeal either . . . [the Medical Practice Act or the law governing the practice of osteopathy], when enacting the midwifery act. The legislature had before it at

   the time of enacting the midwifery act the fact that a person in order to be licensed as an osteopath in this state, must have

   a knowledge of and be examined on the subject of obstetrics.

   [A] registered and practicing osteopathic physician is qualified to act as sponsor. . .

   
   

   Although AGO 049-35 did attach significance to the fact that osteopaths were licensed to practice in Florida, the main thrust of the opinion is that the word "physician" as used in the then current midwifery licensing statute should be given "the broad meaning ordinarily used to denote a person qualified and authorized to prescribe remedies for diseases." AGO 049-35. This is consonant with the cardinal rule of statutory construction that words are to be given their plain and ordinary meaning. E.g., State ex rel. Harris v. King, 137 Fla.

   190, 188 So. 122 (1939); Atlantic Coast Line Railroad Co. v. Boyd, 102 So.2d

   709, 712 (Fla. 1958); In re Estate of Jeffcott, 186 So.2d 80 (Fla. 2d DCA 1966); Brooks v. Anastasia Mosquito Control District, 148 So.2d 64, 66 (Fla. 1st DCA 1963).

   
   

7. Proceedings, like the present one, brought pursuant to Section 120.56, Florida Statutes (1977), are limited to the question whether "the rule is an invalid exercise of delegated legislative authority." Section 120.56(1), Florida Statutes (1977). In general, administrative rules "must be consistent with the provisions," DeThorne v. Beck, 280 So.2d 448, 449 (Fla. 4th DCA 1973), of the statutes they implement. Otherwise stated, "an administrative agency may not adopt a rule which conflicts with or modifies an existing statute." State, Department of Transportation v. Pan American Construction Company, 338 So.2d 1291 (Fla. 1st DCA 1976)(quoting with approval from final order being affirmed; emphasis supplied). Like the rule invalidated in State, Department of Transportation v. Pan American Construction Company, 338 So.2d 1291 (Fla. 1st DCA 1976), Rule 10D-36.21(2), Florida Administrative Code, by adding the requirement that the supervising physician be licensed in Florida, "enlarge[s] the statutory formula by adopting [an] additional criteri[en] 338 So.2d at 1293.

   
   

8. Petitioner also challenges Rule 10D-36.22(1)(a)2., Florida Administrative Code, which requires that an applicant for a lay midwife's license furnish respondent a "list of the patient's name, address and delivery date for each of the documented cases." With the exception of the patient's names, the statute itself requires substantially all of this information. Section 485.031(4)(b), Florida Statutes (1977). Although the additional requirement that names be furnished may make preparation of an application more onerous, Rule 10D-36.22(1)(a) 2. Florida Administrative Code, does not alter the substantive statutory requirements for licensure. The rule is apparently designed to facilitate respondent's evaluation of license applications and is well within respondent's delegated legislative authority.

Upon consideration of the foregoing, it is ORDERED:

1. Role 10D-36.21(2), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

   
   

2. Rule 10D-36.22(1)(a)2., Florida Administrative Code, constitutes a valid exercise of delegated legislative authority.

DONE and ENTERED this 10th day of August, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Catherine B. Tockney, Esquire Post Office Box 3431

Ft. Pierce, Florida 33450

George L. Waas, Esquire Department of HRS

1321 Winewood Boulevard

Tallahassee, Florida 32301

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

Ms. Liz Cloud

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Docket for Case No: 79-000629RX

Orders for Case No: 79-000629RX