STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TOWN OF PALM BEACH, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1774RX
) FLORIDA DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
FINAL ORDER
The Petitioner, Town of Palm Beach, filed a petition pursuant to Section 120.56, Florida Statutes, challenging the validity of Department of Health and Rehabilitative Services Rules 10D-66.31 through 10D-66.38, and 10D-66.39 through 10D-66.42, Florida Administrative Code. The Director of the Division of Administrative Hearings concluded that the petition appeared to comply with the requirements of Section 120.56, and the matter was assigned to the undersigned for the purpose of further proceedings. The final hearing was originally scheduled to be conducted on September 13, 1979, but upon motion of the Respondent with the consent of the Petitioner, this and a later scheduling of the hearing were continued, and the hearing was ultimately conducted on February 15 and 18, 1980.
During the course of the hearing, the Petitioner abandoned its challenge with respect to Rules 10D-66.31 through 10D-66.38, and to an application form which the Petitioner had contended was an unpromulgated rule. The Petitioner contends that Rules 10D-66.39 through 10D-66.42 constitute invalid exercises of delegated legislative authority because the Department did not prepare an adequate economic impact statement; the Department did not adequately notify the Petitioner of the rule adoption proceeding; the Department did not consult with persons required under the provisions of Section 401.47, Florida Statutes; the rules were not adopted within the time frame required by the Florida Statutes; the rules exceed the agency's Statutory authority; the rules are arbitrary and without a rational basis in fact; the rules charge fees which are not authorized by Statute; and the rules allow the Department authority to renew, terminate, suspend, and revoke permits issued under the rule, which is not authorized by statute.
FINDINGS OF FACT
The Town of Palm Beach is a governmental unit of the State of Florida located in Palm Beach County. The town operates an advanced life-support system through its fire department. The system has two vehicles which can be used to transport injured persons to hospitals, and two which do not have that capability but can respond to first-aid calls. When a call for emergency medical services is received, a vehicle or vehicles are dispatched from one of the town's three fire stations. Personnel will provide advanced life-support assistance to injured persons, and if the injured person's life is threatened,
will transport the person to a hospital. If there is a need for transportation which is not life threatening, the town requests that a private ambulance service be dispatched. The town does not routinely transport injured persons to hospitals unless there is a life-threatening circumstance.
The Department of Health and Rehabilitative Services adopted Rules 10D-
66.31 through 10D-66.38, and 10D-66.39 through 10D-66.42, Florida Administrative Code, through the same rule adoption process. Rules 10D-66.31 through 10D-66.38 constituted various amendments to rules that had previously existed. They relate exclusively to ambulance services, i.e., services which routinely transport patients. They do not relate to an advanced life-support system such as that operated by the Town of Palm Beach.
Rules 10D-66.39 through 10D-66.42 pertain to training and certification standards for advanced life-support service personnel, and to certification of advanced life-support providers. The rules were adopted pursuant to the legislative mandate set out at Chapter 401, Florida Statutes. Rule 10D-66.39 relates to certification, recertification, and training requirements for paramedics. Rule 10D-66.40 sets out requirements for application for certification by advanced life-support providers. Rule 10D-66.41 sets the standards and requirements for certification as an advanced life-support provider, and Rule 10D-66.42 sets out operating procedures for advanced life- support systems. A copy of these rules as filed with the Secretary of State was received in evidence at the final hearing as Hearing Officer's Exhibit 1. Rule 10D-66.40 requires that any governmental entity which is now providing advanced life-support services must apply to the Department of Health and Rehabilitative Services for certification as an advanced life-support service. The emergency medical services provided by the Town of Palm Beach clearly constitute advanced life-support services within the meanings of the rules and Chapter 401. The town is required under the rules to apply for certification, and its personnel are required to be certified.
The Town of Palm Beach has not applied for certification in accordance with the Department's rules. The Department has advised the town of its obligation to apply, and in a letter dated December 10, 1979, advised the town:
We would request that you return your application to this office no later than January 7, 1980. Failure to submit an application and to comply with the applicable statutory and regulatory requirements can place the Town of Palm Beach's Fire Rescue service in legal jeopardy.
The town manager testified that he does not intend to apply for certification unless so advised by counsel and directed by the town commission.
On or about April 24, 1978, the Department of Health and Rehabilitative Services filed a Notice of Proposed Rule Making, relating to the rules which were ultimately adopted as Rules 10D-66.39 through 10D-66.42, with the Office of the Secretary of State. Edward L. Wilson, presently the Assistant Director of the Department's Office of Emergency Medical Services, was responsible for technical input with respect to the proposed rules, and later became responsible for developing them into final form. His responsibilities included preparation of the economic impact statement. Prior to the filing of the proposed rules with the Office of the Secretary of State, Several workshops were conducted by Mr. Wilson and other employees of the Department. Advisory committees,
including physicians, emergency medical providers, and medical personnel organizations, provided input, and an ad hoc task force was established to work with the rules. The task force included physicians, representatives of fire departments, and representatives of various other associations. Representatives of the Department personally contacted numerous organizations which were known to be providing emergency life-support services. Costs of implementation of new rules and the propriety of the rules were discussed. Mr. Wilson personally contacted employees of twenty such services, and other representatives of the Department contacted employees of at least fifteen other services.
The rules were filed with the Office of the Secretary of State on August 21, 1978. As originally proposed, an economic impact statement was attached to the rules. In the period between the time that the rules were originally formally proposed and the time that they were finally filed with the Office of the Secretary of State, the statute regarding economic impact statements was amended by the Legislature, and the amendment became effective. The Department sought to adopt and file a new economic impact statement with the rules as finally filed. The Office of the Secretary of State refused to accept the revised economic impact statements for filing, and they have been retained in the files of the Department. The original economic impact statement contained no estimate of costs that providers of advanced life-support services would need to incur in order to qualify for certification under the rules. The amended statement contained only the following language respecting the cost to providers:
It is estimated that it may be necessary for some services to increase their staffs to meet the minimum requirements established by these Rules. Further, it is estimated that some individuals may have their jobs terminated for failure to meet the minimum standards established by these Rules. There will also be some cost for those services who will be or are providing advanced life support to meet equipment requirements.
Of the services contacted by Mr. Wilson, nearly all of them indicated that they already had equipment that would comply with the requirements of the new rules, and personnel who were either already certified, or eligible to be certified under the new rules. Those who did not have the equipment and personnel indicated that they were in the process of obtaining them. Mr. Wilson therefore concluded that the economic impact of the proposed rules upon providers would be negligible. The cost to any given provider could have been reliably determined by assessing the provider's equipment and personnel, and determining what new equipment and personnel would be required, and determining the cost based upon known expenses.
The Town of Palm Beach has estimated that its costs in complying with the new rules would be prohibitive. An accountant retained by the town estimated that it would cost the town in excess of $30,000 to implement the new rules, and in excess of $100,000 per year on a continuing basis. The implementation costs were based upon a determination that all of the town's firemen would need to be certified as emergency medical technicians. While that might be desirable from the town's point of view, it was not established that it would be required. It appears that the town's needs for additional certified personnel could be satisfied by the addition of no more than three additional certified persons. More than three employees of the town's fire department have
already applied for certification, and if they ultimately are successful in obtaining certification, the town's expenses will not be increased. The estimate of annual costs in excess of $100,000 is totally unjustified. It includes a five percent pay increase for all personnel and $44,000 fur supervisory physicians. There is no justification for basing a five percent pay increase for all fire department employees on the rule. The physician expenses were based upon the fact that the City of West Palm Beach has contracted with a physician for such services at a cost of $11,000. The accountant reasoned that since the Town of Palm Beach transports life-threatened patients to four different emergency room facilities, they would need a supervising physician at each facility. Thus, the Town of Palm Beach, which is considerably smaller than the City of West Palm Beach, would be paying four times more for the necessary medical assistance. The proposition is absurd. Most advanced life-support systems have obtained the necessary supervisory physician on a voluntary basis. The town has made no effort to determine what actual costs, if any, it would need to incur.
The Town of Palm Beach was on the Department's list to receive notice of the proposed rules. It appears that no one in the town received notice of the rules. Nonetheless, the town was made aware of the public hearing that was conducted on May 18, 1978, in Tallahassee, and a representative of the town, its town manager, actually appeared at the hearing. It does not appear that the Town of Palm Beach was in any way prejudiced by the fact that it did not receive notice, nor does it appear that the failure occurred through any conscious error on the part of the Department. In fact, the Department records indicate that notice was sent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.56, Florida Statutes (1979).
The Town of Palm Beach asserts that Rules 10D-66.39 through 10D-66.42 are invalid because the economic impact statement did not adequately address the costs that would be borne by advanced life-support providers in implementing the rules. The Department's action in consulting with various advisory committees and its ad hoc committee, and conducting workshops and directly contacting approximately 35 advanced life-support providers was an adequate effort to determine the costs that providers would need to bear to implement the rules. Indeed, many of the revisions to the rules that occurred prior to their formal proposal were made as a result of providers advising the Department that the costs of various proposed provisions would be inordinate. When the original economic impact statement and the revised one were prepared, the Department was justified in concluding that providers would incur little or no increased costs in order to implement the rules. It does appear that the Petitioner, Town of Palm Beach, will need to incur some additional costs if it endeavors to comply with the new rules. These costs have not been precisely determined. It is not, however, the Department's responsibility to develop an economic impact statement to address costs that might be borne by every entity affected by the rules. The method utilized by the Department in directly contacting numerous providers constituted professionally acceptable methodology, and was a reasonable estimation. Thus, whichever statute must be applied in determining the sufficiency of the economic impact statement adopted by the Department, the criteria have been met.
The town contends that the rules are invalid because it was not properly notified of the filing of the proposed rules. The town did learn of the public hearing that was conducted with respect to the proposed rules, and suffered no prejudice through the failure of notice. Neither was the correctness of the action taken by the Department affected by the failure of notice. The failure of notice cannot therefore serve to invalidate the rules. School Board of Broward County v. Gramith, 375 So.2d 340 (1 DCA Fla. 1979); Polk
v. School Board of Polk County, 373 So.2d 960 (4 DCA Fla. 1979).
The town contends that the rules are invalid because the Department did not contact employees of nine providers as required by the provisions of Section 401.47, Florida Statutes. This contention is without merit. The Department actually contacted more than 35 such services directly, and others participated in workshops and public hearings.
Under Section 401.47, Florida Statutes, the Department was required to adopt rules respecting paramedics on or before January 1, 1978. The instant rules were not finally filed with the Secretary of State until August 21, 1978. The town contends that the Department's authority to promulgate such rules expired on January 1, 1978. The Department's failure to comply with the legislative time mandate is hardly laudable. It does appear, however, that the Department was seeking to obtain input from numerous sources with respect to its proposed rules, and it does not appear that the rulemaking effort was purposely delayed. It has not been shown that the failure to follow the legislative time frame in any way prejudiced the Petitioner, impaired the fairness of the rulemaking proceeding, or affected the validity of the action ultimately taken by the Department.
The town has asserted that the rules exceed the legislative authority and are arbitrary. The director of the town's emergency medical services expressed numerous disagreement with the rules. He opposes the need to annually register, the need to certify all personnel who drive advanced life-support vehicles, telecommunications requirements imposed by the rules, the need for medical supervision, and he asserts that the rules will impose a staggering record-keeping obligation upon the town. All of these points are matters that could have been raised by the town during the proceedings leading to adoption of the rules, and many of them presumably were. It has not been shown that any of the town's complaints are such as would render the rules an invalid exercise of delegated legislative authority. In Agrico Chemical Company v Department of Environmental Regulation, 365 So.2d 759 (1 DCA Fla. 1979) the Court stated: (at p. 703)
The burden is upon one who attack the proposed rule [existing rule in the instant case] to show that the agency, if it adopts the rule, would exceed its authority; that the requirements of the rule are not appropriate to the end specified in a legislative action; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious.
The degree of proof required is preponderance oft the evidence. The Petitioner has failed to establish by a preponderance of the evidence that the rules
adopted by the Department of Health and Rehabilitative Services are in excess of the legislative authority, or are arbitrary and capricious.
The town has contended that fees charged by the Department under the proposed rules are not authorized by the legislative act. The fees are actually explicitly specified in Section 401.34, Florida Statutes, and the Department would be obliged to charge them whether it adopted them as rules or not.
The town has contended that the portions of the rules which allow the Department to suspend, revoke, or renew licenses are invalid because these actions are not authorized by the statute. When an agency has been granted licensing authority, it is a fair implication that the agency also has authority to specify conditions under which the license can be held and revoked. State Board of Education v. Nelson, 372 So.2d 114 (1 DCA Fla. 1979)
The Town of Palm Beach has failed to establish that the Department of Health and Rehabilitative Services Rules 10D-66.39 through 10D-66.42 constitute invalid exercises of delegated legislative authority.
The Department has contended, while at the same time requesting an adjudication on the merits, that Petitioner lacks standing to maintain this rule challenge proceeding. The basis of the contention is that since the Petitioner has not and does not intend to seek certification under the rules, it is not substantially affected by them and thus cannot challenge them. The contention is without merit. Clearly, the Petitioner's advance life-support service is covered by the rules, and the Department has indicated that if certification is not sought, legal action will follow. This is an effect of a substantial and immediate sort.
FINAL ORDER
Based upon the foregoing findings of fact and conclusions of law, it is, hereby
The petition filed by the Town of Palm Beach challenging the validity of Department of Health and Rehabilitative Services Rules 10D-66.39 through 10D-
66.42 is hereby dismissed.
ENTERED this 15th day of April, 1980, In Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Ronald C. LaFace, Esquire Roberts, Miller, Baggett, LaFace, Richard & Wiser
Post Office Drawer 1839 Tallahassee, Florida 32302
Charles T. Collette, Esquire Department of Health and
Rehabilitative Services
1323 Winewood Boulevard, Suite 400
Tallahassee, Florida 32301
Ms. Liz Cloud Department of State
Administrative Code Bureau Room 1802, The Capitol Tallahassee, Florida 32301
Carroll Webb, Esquire Executive Director
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Apr. 15, 1980 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 15, 1980 | DOAH Final Order | Petitioner's claim that challenged rules are invalid for failure to conduct economic impact study or to notify affected entities fails. Dismiss. |
