STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARGARET PETTY-EIFERT, )
)
Petitioner, ) CASE NO. 83-001RX
)
JANICE HELLER, )
)
Petitioner, ) CASE NO. 83-204RX
)
vs. )
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
FINAL ORDER
Final Hearing was held in the above-captioned matters, after due notice, at Tallahassee, Florida, on April 5, 1983, before Thomas C. Oldham, Hearing Officer.
APPEARANCES
For Petitioners: Thomas G. Sherman, Esquire
DeMeo and Sherman 3081 Salzedo Street
Coral Gables, Florida 33134
For Respondent: Claire D. Dryfuss, Esquire
Department of HRS
1323 Winewood Boulevard
Tallahassee, Florida 32301
These cases arise as a result of Petitions filed by Petitioners Margaret Petty-Eifert and Janice Heller, pursuant to Section 120.56, Florida Statutes, for an administrative determination of the validity of specified rules promulgated by Respondent Department of Health and Rehabilitative Services in Chapter 10D-36, Florida Administrative Code. Both Petitioners filed applications for licensure as a lay midwife pursuant to Chapter 485, Florida Statutes, and such applications were provisionally denied by Respondent based on specified rules contained in Chapter 10D-36, F.A.C. Petitioners thereafter requested administrative hearings pursuant to Section 120.57, Florida Statutes, on the denials, and also filed the rule challenges which form the basis for this proceeding. Specifically, Petitioner Petty-Eifert challenges Rules 10D-36.22 (1)(d) and Rule 10D- 36.22(1)(d). Petitioner Heller challenges Rules 10D- 36.22(1)(a), 10D-36.22(1)(d), and 10D-36.27 as constituting an invalid exercise of delegated legislative authority.
The two cases were consolidated pursuant to Rule 28-5.106, Florida Administrative Code, by Orders dated January 5 and January 27, 1983.
At the hearing, Petitioners testified in their own behalf and presented the testimony of 4 witnesses, and submitted 5 exhibits in evidence. Respondent called 2 witnesses and submitted 11 exhibits in evidence.
Posthearing submissions in the form of Proposed Findings of Fact and Conclusions of Law and Memorandum of Law in Support of Rule Challenge Petition filed by Petitioners and Memorandum of Law filed by Respondent have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
FINDINGS OF FACT
Petitioner Margaret Petty-Eifert, Miami, Florida, requested application forms for midwife licensure from Respondent Department of Health and Rehabilitative Services (HRS) by letter of March 22, 1982. By letter of April 19, 1982 Dolores M. Wennlund, Nursing Services Director of HRS, provided the necessary application forms. Her letter contained the following paragraph:
There have been substantial changes in the Midwife Practice Act that will become effective July l, 1982. Therefore if you intend to request licensure under the present Midwifery Act, you will have to return your completed application promptly.
By letter of June 8, 1982, Petitioner Petty-Eifert mailed copies of her application and required enclosures to Respondent and to Dr. Richard A. Morgan, Dade County Health Director. The application form provided for the County Medical Director to sign a statement as to whether or not the applicant demonstrates ability to complete standard birth certificates, and whether the applicant had provided evidence of behaviors and habits consistent with safe hygiene practice, use of equipment which is safe and sanitary, and compliance with "local ordinances, Florida statutes, and the Florida Administration (sic) Code." It also provided for a listing of not less than fifteen cases of labor attended by the applicant under the supervision of a duly licensed and registered physician within a one-year period, including the care of not less than fifteen mothers and newborn infants during the lying-in period. The application further required that the applicant provide statements of the attending physician in each case documenting the level of skill and competence exercised by the applicant during such births.
By letter of July 6, 1982, Dr. Morgan forwarded his copy of Petitioner's application to Respondent with an unfavorable recommendation, together with a copy of his letter of the same date to Petitioner wherein he advised her that she had not qualified to practice as a lay midwife, and listed a number of instances where she had allegedly completed birth certificates "replete with errors and omissions," cited an instance where her behavior and habits had failed to be consistent with safe hygiene practice, and cited several instances of implied misconduct. The completed application with the Medical Director's unfavorable recommendation was received by Respondent on July 7, 1982.
By letter of September 30, 1982, Gary J. Clarke, Assistant Staff Director, HRS, advised Petitioner Petty-Eifert that the Department had determined that her application should be denied, listing a variety of reasons based on her failure to meet the requirements of Chapter 485, Florida Statutes, and Chapter l0D-36, Florida Administrative Code. One of the cited reasons for
denial was that two of the births listed in her application as evidence of her supervised experience were delivered in the hospital, and that therefore she had not attended fifteen cases of labor during the lying-in period as required by Section 485.031(4)(b), F.S., and Rule l0D-36.22(1)(a), F.A.C. Another reason cited for the denial was that she had filed birth certificates with misinformation in eight cases and therefore raised "serious doubts" about her ability to complete standard birth certificate forms, as required in Section 484.031(2), F.S., and Rule l0D-36.22(1)2(d), F.A.C. The letter further contained the following paragraph:
Your application for lay midwifery licensure was submitted before June 30, 1982, and re- quested licensure under the old statute and applicable rules. Your application was
judged against these standards and your licensure is withheld pursuant to the authority granted to the Department in 485.071(2) F.S. You have the right to request a hearing on this matter within
30 days of receipt of this letter pursuant to Chapter 120, F.S.
Petitioner Petty-Eifert thereafter filed her Petition to determine the invalidity of Rules 10D-36.22(1)(a) and 10D-36.22(1)(d), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. (Testimony of Petitioner Petty-Eifert, Pettengill, Petitioners' Exhibits 3, 5, Respondent's Exhibits 4-7)
By letter dated June 18, 1982, Terry L. DeMeo, Esquire, a Coral Gables attorney, transmitted the application of Janice Heller for licensure as a lay midwife to Respondent's Health Program Office, together with the required attachments. These included detailed statements by the supervising physician in sixteen cases of labor which took place over a fourteen and one-half month time span. The letter stated that although this was in accordance with statutory requirements, the HRS rule which stated that such cases must have occurred within a one-year period was considered invalid and unenforceable, citing a court decision. The letter further stated that the application had simultaneously been submitted to the Broward County Health Department, but in view of the history of that Department routinely denying midwifery applications, and the past bias on the part of Dr. George Trodella, it was requested that a neutral decision maker be designated to review the application. The letter and application was received by Respondent on June 23, 1982, without the required statement of the County Medical Director. By letter of July 21, 1982, Dr. George P. Trodella, Assistant County Health Director, Broward County Health Unit, advised Respondent that Petitioner Heller was not qualified for a variety of specified reasons. Thereafter, by letter of September 24, 1982, Petitioner Heller was advised by Respondent's Health Program Office Assistant Director Gary
J. Clarke, that the Department had determined her application should be denied. A number of reasons were listed, including not having provided a record of having attended fifteen births within one year as required by Rule 10D-36.22, not having received a written recommendation for licensure by the County Medical Director as required by Rule 10D-36.22, and for "incompetently administered oxygen to a patient," thereby administering a substance for therapeutic purposes other than silver nitrate which was prohibited by Rule 10D-36.27, F.A.C. The letter further contained the same paragraph concerning the fact that Petitioner Heller's application was judged against the old statute and applicable rules since it had been filed prior to June 30, 1982. Petitioner Heller thereafter filed a Petition for administrative determination of the invalidity of Respondent's Rules 10D-36.22(1)(a) and (d), and 10D-36.27, F.A.C. (Testimony of
Petitioner Heller, Clarke, Pettengill, DeMeo, Petitioners' Exhibit 4, Respondent's Exhibit 4, Respondent's Exhibit 3).
Subsequent to filing their applications, Petitioners expended funds to travel to Tallahassee to take written and oral examinations and undergo interviews by Respondent. Petitioner Heller was accompanied by her counsel during the trip. (Testimony of Petitioners)
During the 1982 legislative session, Timothy Monahan, who conducted legislative liaison for Respondent, was in the process of negotiations with various groups concerning proposed revisions to Chapter 485, Florida Statutes, concerning the licensing of midwives. At the request of a state legislator, he contacted Terry DeMeo who purportedly represented the Florida Midwives Associations. She had a "loose" relationship with the organization and undertook negotiations with Monahan on an unpaid basis on the verbal authority of a midwife, Linda Wilson, who DeMeo assumed was in charge of the group. She did not purport to be representing any specified individuals. Petitioner Petty- Eifert is not a member of the Florida Midwives Association, and Petitioner Heller is an associate non-voting member of the group. DeMeo was concerned with substantive aspects of the proposed legislation and also desired that any changes to the law be made effective July 1, 1982, rather than an earlier date as proposed by Respondent. As a result of their negotiations, Monahan was under the impression that DeMeo had entered into an "agreement" whereby HRS would consider under the existing statute and departmental rules any applications for midwife licensure filed prior to July 1, the effective date of the statutory revisions. DeMeo testified at the hearing that she had no recollection that this was a part of their conversations, and denied any knowledge of entering into an "agreement" concerning the matter. In any event, Monahan represented to his superiors that there was such a commitment to apply the existing law and rules, and this was followed in all cases involving applications filed prior to July 1, 1982. Twelve of the applicants were licensed subsequent to July 1, 1982, under the preexisting law and rules. Respondent views the filing of the instant challenges to its rules as a breach of the perceived "agreement." It is found that Petitioners were not parties to any agreement concerning the processing of their applications. (Testimony of Petitioners, DeMeo, Pettengill, Clarke, Respondent's Exhibit 1 (Deposition of Wennlund), 2 (Deposition of Stinson), 9- 10).
Rule 10D-36.22, F.A.C., apparently implemented Section 485.031(4)(b), Florida Statutes. The statutory provision required as a qualification for licensure that an applicant must have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during a lying-in period of at least ten days each. Rule l0D-36.22(1)(a) required that the applicant provide evidence of having attended the 15 cases "within a one (1) year period." In practice, Respondent normally required the one-year period to be the one-year period immediately prior to the filing of the application, although at least one exception had been made in this respect in a prior case. The intent of Respondent in adding the one-year requirement was to show that the applicant had demonstrated skills in the recent past, and to be compatible with the annual licensing period, and the one-year period of the vocational nurses program. (Testimony of Pettengill; Petitioner's Exhibit 2).
Rule 10D-36.22(1)(d) apparently implements Section 485.031(2), Florida Statutes, which provides in part that an applicant must be able to fill out birth certificates legibly, which requirement may be waived for those persons with extended experience or in other exceptional circumstances. The rule
requires that the application be accompanied by a written recommendation for licensure by the County Medical Director attesting to the applicant's ability to complete standard birth certificate forms, and to the fact that applicant's behavior and habits are consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary.
Respondent's general basis for this requirement is that the County Medical Director serves as the registrar and maintains vital statistics in his county, and has overall responsibility for the public health program in his jurisdiction. Historically, midwives have been under the supervision of the county health office concerning inspection of facilities and procedures utilized by midwives. Respondent's stated purpose the is to have the County Medical Director obtain the necessary facts for presentation to the Respondent with either a favorable or unfavorable recommendation. Although the rule prescribes a "written recommendation for licensure," Respondent has on occasion in the past licensed an applicant even though the County Medical Director had submitted an unfavorable recommendation.
Respondent's stated reason for requiring the County Medical Director's attestation as to the applicant's ability to complete standard birth certificate forms was to ensure the applicant's ability to provide accurate information. Since the County Medical Director handles the vital statistic function in his county, it was believed by Respondent that he would be in the best position to fattest to the applicant's ability in this regard. It is important that birth certificate forms be filled out accurately since the information provided is used for a variety of purposes, such as estimation of population, state planning, and the like. In addition, proper spelling of the name is important to the individual concerned, and an error in this regard requires the filing of an affidavit to change the birth certificate. (Testimony of Pettengill, Williams; Petitioner's Exhibit 1).
Rule 10D-36.27, in apparent implementation of Section 485.081, Florida Statutes, prohibits the administration of "any drug, herb or other substance for therapeutic purposes except as provided in Section 10D-36.28 of this chapter." Rule 10D-36.28(2) requires a lay midwife to instill two drops of one percent fresh solution of silver nitrate into dyes of newborn infants within one hour after birth. The purpose of Rule 10D-36.27 was to ensure that midwives would not use "old home remedies," such as poultices, ointments, plugs, and sassafras which possibly could be dangerous to the infant. In the opinion of Respondent's Public Health Nursing Consultant, oxygen would be included in the term "other substances" as used in the rule. (Testimony of Pettengill).
CONCLUSIONS OF LAW
Respondent filed prehearing motions to dismiss the petitions in these proceedings on the ground of mootness, based on the fact that Chapter 485, Florida Statutes, was repealed by Section 2, Chapter 82-99, Laws of Florida, governing lay midwife licensure, effective July 1, 1982, and that therefore the statutory support for the challenged rules no longer exists. Respondent further pointed out that emergency rules based on the new Chapter 467 were promulgated effective August 14, 1982, which rules repeal the rules under challenge here. Respondent further notes in its motions that, although it applied the prior statute and rules to Petitioners' applications because of an agreement reached between the agency and the Lay Midwives Association which represented the Petitioners, Petitioners had breached the alleged agreement by challenging the validity of Respondent's rules, and that, therefore, it must now follow case law requiring the statute in effect either at the time of administrative petition or final agency action to be applied.
In their response to the Motion to Dismiss, Petitioners stated that they had made no agreements with HRS and that, since Petitioners had filed their applications under the old law and rules, and due to the fact that the applications had been processed and denied under such authority, Respondent's claim of mootness should be barred by principles of estoppel. Petitioners further pointed out that other applications filed prior to July 1, 1982, had been approved subsequent to July 1. They also claimed that Section 467.209(1), Florida Statutes (1982), providing that no administrative proceeding pending on July 1, 1982, shall be abated as a result of the repeal and enactment of the new chapter, preserved their rights to be considered under the prior statute and rules. Finally, Petitioners cited judicial decisions for the proposition that a licensed applicant was entitled to have his right to a license adjudicated under the law as it existed upon application.
Respondent's contention that Petitioners should be precluded from asserting these rule challenges because of their alleged breach of the so called, oral "agreement" between it and DeMeo is unavailing. Insufficient evidence was presented to show that any agreement was entered into between the Department and Petitioners, or any authorized representative in their behalf. Even if an agreement had been reached by those parties concerning the processing of Petitioners' applications, the legal efficacy of same would indeed be in question. Petitioners' estoppel argument likewise must fail in such a situation. The general rule is that the state cannot be estopped through mistaken statements of the law. State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981) and cases cited therein. Any theory of estoppel would necessarily have to be based upon the fact that Respondent processed and denied the applications on the basis of statutes and rules that no longer existed. Assuming that Respondent's various communications to Petitioners in this regard were in legal error, they could be interpreted as mistaken questions of law.
Petitioners' reliance on Section 467.209(1), Florida Statutes, which provides that no administrative proceedings pending on July 1, 1982, shall be abated as a result of the new statutory chapter, is also misplaced. The mere fact that such a proceeding may not be abated does not stand for the proposition that the ultimate decision therein should be based on the prior law.
Ordinarily, the law to be applied in license application cases is the one in effect at the time of the ultimate agency decision. Bruner v. Board of Real Estate, etc., 399 So.2d 4 (Fla. 5th DCA 1981). It is the general rule that a change in the law pending an application for a license is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted. 51 Am. Jur. 2nd, Licenses and Permits Section 46. See also Oyster Bay Estates, Inc. v. State Department of Environmental Regulation, 384 So.2d 891 (1st DCA Fla. 1980). However, in Goldstein v. Sweeney, 42 So.2d 367 (Fla. 1949), the Supreme Court, in a license application case where the applicant had filed successive applications, but the licensing statute had been amended to become more stringent subsequent to the first application, said:
". . . from the facts shown here, appellant made the proper showing and was entitled to have his rights adjudicated under the laws that existed when he first applied."
Similarly, in Atwood v. Buchert, 53 So.2d 101 (Fla. 1951), the Court again followed its decision in Goldstein by providing that the application be
processed under the prior law in a situation where the agency had not acted upon his application for a period of over a year, during which the licensing statute had been changed. It is thus concluded that the law in effect at the time of the license application may be applied in certain situations, if warranted by the particular facts of the case. In the instant cases, Petitioners are deemed to be entitled to have that law apply, particularly in view of the fact that the preliminary denials of their applications here based upon the preexisting law and rules. Accordingly, it is further concluded that Petitioners have the requisite standing in these proceedings.
The petitions herein allege that the three challenged rules in question are invalid as exceeding the power granted to the Respondent under Chapter 485, Florida Statutes, or as being in conflict with that Chapter, that they are arbitrary and unreasonable, and unconstitutionally discriminate against the rights of Petitioners to practice their profession, and that they were not promulgated in accordance with Chapter 120. Florida Statutes, and fail to contain any economic impact statement. The challenge as to constitutionality of existing rules cannot be considered in this proceeding, and no evidence was presented at the hearing with regard to any failure of Respondent to promulgate its rules in accordance with Chapter 120, Florida Statues.
Section 485.051, Florida Statutes, authorizes Respondent to "make such rules and regulations as it may deem necessary for regulating the practice of midwifery within the state."
Rule 10D-36.22(1)(a), F.A.C. Although in her Petition, Petitioner Petty-Eifert attacked the application of this rule rather than its content, Petitioner Heller claims that it is invalid because it improperly extends the language of Section 485.031(4)(b), Florida Statutes. The statute provides pertinently as follows:
45.031 Qualifications of applicant to practice midwifery.--
Every applicant for a license to practice midwifery must possess the following qualifications:
* * *
(4) * * *
(b) Have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of at least 15 mothers and newborn infants during lying-in period of at least 10 days each; . . .
On the other hand, the rule provides as follows: 10D-36.22 Application for license
(1) Application for license shall be made
on forms provided by the Department of Health and Rehabilitative Services and shall be accompanied by:
(a) Evidence of having attended within a one year period under the supervision of a duly licensed and registered physician not less than fifteen (15) cases of labor including the care of not less than
fifteen (15) mothers and newborn infants during the lying-in-period. (Emphasis added)
As pointed out by Petitioners, the statute provides for no time period in which the fifteen births must be performed. They allege that this attempt to modify and alter the statute is improper and renders the rule invalid, citing McTigue
v. HRS, 387 So.2d 454 (Fla. 1st DCA 1980). That case involved challenges to two of Respondent's rules under the same rule chapter as is under consideration here. In that case, the First District Court of Appeal invalidated the two rule provisions which improperly added to the plain words of the statute. The Court stated:
While there is obviously room for some
rule-making and regulation by the Department in connection with each of the alternative subsections, the Department is not authorized to add to or modify those provisions which spell out with particularity the criteria which must be
met in order to be eligible for a license.
The Court in the McTigue case was considering the same statutory subsection as is under consideration here. The same reasoning must apply in determining the validity of Rule 10D-36.22(a). The statutory provision did not specify a period of time in which the applicant must have attended the requisite fifteen cases of labor. However, by so specifying a one-year period in the rule, Respondent modified the statute by adding a further criterion to be met by the applicant.
In spite of the stated purposes in restricting such attendances to a one-year period as shown by Respondent, the decision as to validity of the rule cannot be based upon the wisdom of the agency in adopting the rule, nor the merits or utility of the rule itself. McTigue, supra, Department of Health and Rehabilitative Services v. Florida Psychiatric Society, 382 So.2d 1280 (Fla. 1st DCA 1979).
In like manner, and for the same reasons as above, it is concluded that Respondent's Rule 10D-36.22(1)(d) improperly modifies the statute by adding an additional criterion to be met by the applicant. Section 485.031(2) requires the applicant to be able to "fill out the birth certificates legibly," and (3) requires the applicant to "be clean and constantly show evidence and behavior and in home habits of cleanliness." The rule provides that the application shall be accompanied by:
(d) A written recommendation for licensure by the county medical director attesting to the applicant's ability to complete standard birth certificate forms and that the applicant's behavior and habits are
consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary. (Emphasis added)
A portion of this rule changes the statutory requirement that an applicant be able only to fill out a birth certificate legibly to the requirement that she must complete standard birth certificate forms. The evidence at the hearing shows that this change in language was designed to ensure that an applicant placed accurate information on the birth certificates, whereas the statute
merely requires that it be capable of being read or deciphered by use of the word "legible." The change thus extends the statutory requirement beyond its obvious purpose. Also, the rule's requirement that the written recommendation of a county health director be obtained is not a requirement imposed by statute. Although Respondent apparently has, on occasion, licensed a mid-wife in spite of an unfavorable recommendation of the county medical director, it is noted that Petitioners were denied their license in part for the reason that they had not received such a recommendation. In fact, unfavorable recommendations had been filed with the Department by the County Medical Director. It thus appears that the "recommendation" requirement of the rule was not designed merely to serve as investigative assistance for Respondent, but to constitute a separate and distinct criterion under which the application would be judged.
Finally, Respondent claims that its Rule 10D-36.37 is in implementation of Section 485.081 which reads as follows:
485.081 Midwives to practice in normal
cases only.-- A duly licensed and registered midwife may practice midwifery in cases of normal labor and in no others. No midwife shall in any case use instruments of any kind, or assist labor by any artificial, forcible or mechanical manner or attempt
to remove adherent placentae, or administer, prescribe, advise or employ any poisonous drug or herb or medicine or attempt the treatment of disease except where the attendance of a physician cannot be speedily secured and in such cases, the midwife shall secure the attendance of the physician as soon
as possible. (Emphasis added) The rule reads as follows:
10D-36.27 Use of Drugs Prohibited No lay midwife shall under any circumstances prescribe, recommend, advise or administer any drug, herb or other substance for therapeutic purposes except as provided
in Section l0D-36.28 of this chapter. (Emphasis added)
(Rule l0D-36.28(2) requires a midwife to instill silver nitrate into the eyes of newborn infants within one hour after birth.) Although the statute is somewhat vague as to what the midwife is permitted to do in cases where the attendance of a physician "cannot be speedily secured" due to the punctuation therein, it is clear that the midwife is not precluded from taking necessary emergency action in cases where the attending physician is not present and where such presence cannot be rapidly secured. As pointed out by Petitioners in their posthearing Memorandum of Law, it might be necessary for a midwife to use whatever means
are available to deal with an emergency. The absolute prohibition of the rule that no lay midwife shall "under any circumstances" use or recommend any substance for therapeutic purposes ignores and improperly restricts the plain language of the statute.
In view of the foregoing, it is determined, pursuant to Section 120.56, Florida Statutes, that Rules l0D-36.22(1)(a), 10d-36.22(1)(d), and 10D-36.27, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
DONE and ORDERED this 5th day of May, 1983, in Tallahassee, Florida.
THOMAS C. OLDHAM
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1983.
COPIES FURNISHED:
Thomas G. Sherman, Esquire DeMeo and Sherman
3081 Salzedo Street
Coral Gables, Florida 33134
Claire D. Dryfuss, Esquire Department of HRS
1323 Winewood Boulevard
Tallahassee, Florida 32301
Honorable David Pingree Secretary, Department of HRS 1323 Winewood Boulevard
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32301
Liz Cloud, Chief
Bureau of Administrative Code 1802 The Capitol
Tallahassee Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 05, 1983 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| May 05, 1983 | DOAH Final Order | Challenged rules are invalid for expanding statutory requirements. |
