STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA HOSPITAL ASSOCIATION, ) MEASE HOSPITAL AND CLINIC, et al., )
)
Petitioners, )
)
vs. ) CASE NO. 86-3894RP
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent, )
and )
)
VISUAL HEALTH AND SURGICAL )
CENTER, INC. and CHARLES )
MONTGOMERY, M.D., P.A., )
)
Intervenors. )
) MEDIVISION OF NORTHERN PALM ) BEACH COUNTY, INC., MEDIVISION ) OF ORANGE COUNTY, INC., MEDIVISION ) OF HILLSBOROUGH COUNTY, INC., )
MEDIVISION OF NORTHERN DADE )
COUNTY, INC., and MEDIVISION )
OF MIAMI, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 86-4018RP
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent, )
and )
)
VISUAL HEALTH AND SURGICAL )
CENTER, INC. and CHARLES )
MONTGOMERY, M.D., P.A., )
)
Intervenors. )
) FLORIDA HOSPITAL, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4019RP
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent, )
and )
)
VISUAL HEALTH AND SURGICAL )
CENTER, INC. and CHARLES )
MONTGOMERY, M.D., P.A., )
)
Intervenors. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a hearing in these consolidated cases on October 27-30, 1986, in Tallahassee, Florida. A transcript of the proceedings was filed with the Division of Administrative Hearings on January 12, 1987.
The parties requested, and leave was afforded through March 11, 1987, 1/ to allow the parties an opportunity to file Proposed Final Orders for consideration by the under signed in preparation of this Final Order. The parties waived the time requirement that the Final Order be entered within 30 days after the hearing as set forth in Section l2O.54(4)(c), Florida Statutes.
The parties' proposed findings are, as appropriate, incorporated in this Final Order. Specific proposed findings which are not incorporated herein are rejected and are the subject of specific rulings in an Appendix to this Final Order.
APPEARANCES
Representing Petitioners, Florida Hospital Association, Inc., Mease Hospital and Clinic, St. Mary Hospital, Lee Memorial Hospital, Bethesda Memorial Hospital and Bascom Palmer Eye Institute (FHA):
Mr. Kenneth F. Hoffman, Attorney at Law Oertel & Hoffman, P.A.
2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32314-6507
Representing Petitioner, Florida Hospital:
Messrs. Jeffrey Boone, and Gregory C. Roberts Attorneys at Law
Boone, Boone, Klingbeil and Boone, P.A. 1001 Avenida del Circo
Post Office Box 1596 Venice, Florida 34284
Representing Petitioners, Medivision of Northern Palm Beach County, Inc., Medivision of Orange County, Inc., Medivision of Hillsborough County, Inc., Medivision of Northern Dade County, Inc., and Medivision of Miami, Inc. (Medivision):
Robert A. Weiss, Esquire
Parker, Hudson, Rainer, Dobbs and Kelly The Perkins House, Suite 101
113 North Gadsden Street Tallahassee, Florida 32301
Representing Petitioner, HCA Health Services of Florida, Inc. (HCA): Ronald K. Kolins, Esquire
Moyle, Flanigan, Katz, Fitzgerald and Sheehan P.A.
Post Office Box 388
West Palm Beach, Florida 33402
Representing Respondent Department of Health and Rehabilitative Services (DHRS):
Sandra Stockwell, Esquire
Culpepper, Pelham, Turner and Mannheimer
100 East Park Avenue Post Office Drawer 11300
Tallahassee, Florida 32302-3300
Representing Intervenor Visual Health and Surgical Center, Inc. (Visual Health):
William B. Wiley, Esquire
McFarlain, Bobo, Sternstein, Wiley and Cassedy 666 First Florida Bank Building
Post Office Box 2174 Tallahassee, Florida 32316
Representing Intervenor Charles Montgomery, M.D., P.A., (Montgomery): Messrs. Robert D. Newell, Jr. and
Phillip B. Miller, Esquires
200 South Monroe Street, Suite B Tallahassee, Florida 32301
ISSUE PRESENTED
The issue presented for decision herein is whether or not Proposed Rule 10- 5.005(2), Florida Administrative Code, as promulgated by DHRS constitutes an invalid exercise of delegated legislative authority.
Based upon the following findings of fact, conclusions and analysis, proposed Rule 10-5.005(2)(a) and (b) is invalid.
INTRODUCTION AND BACKGROUND
On September 26, 1986, DHRS published Proposed Rule 10- 5.005(2)(a) and (b) in Volume 12, No. 39 of the Florida Administrative Weekly, at pp. 3572 and 3573. The proposed rule creates certain exemptions to physician offices and
physicians group practices from Certificate of Need (CON) review pursuant to Section 381.494, Florida Statutes.
Petitioner, FHA Florida Hospital, Medivision and HCA, pursuant to Section 120.54, Florida Statutes, filed a Petition for Determination of Invalidity of Proposed Rule seeking to have Proposed Rule 10-5.005(2), as promulgated by DHRS, declared an invalid exercise of delegated legislative authority.
Petitions to Intervene in the rule challenge proceeding were filed by Visual Health and Montgomery, pursuant to Section 120.54(4)(d), Florida Statutes.
The separate petitions challenging Proposed Rule 10-5.005(2) were consolidated for final hearing which commenced on October 27, 1986.
The Petitions to Intervene were granted by the undersigned without objections from Petitioners or Respondent (TR 8). The parties also stipulated that each party had the requisite standing to take part in this formal hearing. Section 120.54(4), Florida Statutes. (TR 8).
Petitioners Motion to Strike Portion of Intervenor Proposed Final Order and Montgomery's Response in Opposition there to was unnecessary to resolve based on the determination made herein that the proposed rule was invalid for reasons other than "two technical defects in the challenged rule which are fatal" that Intervenor Montgomery urges as a basis for invalidating the proposed rule. 2/
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.
DHRS' Office of Health Planning and Development is divided into two separate divisions:
The Office of Community Medical Facilities, which administers the State Certificate of Need Program and has responsibility for making recommendations regarding CON applications, and (2) the Office of Comprehensive Health Planning, which has primary responsibility for development of rules pertaining to Certificate of Need policy. Mr. Robert Maryanski, Administrator of the Office of Community Medical Facilities, believes his office made no formal comments (perhaps informal comments,) concerning the proposed rule. Mr. Maryanski considered that the proposed rule was objectionable based on his understanding of the statutes. (TR 33, 54).
Elfie Stamm is employed by the Office of Comprehensive Health Planning and has primary responsibility for development of Proposed Rule 10-5.005. The text of the proposed rule is as follows:
10-5.005 Exemptions.
* * *
(2)(a) Physician offices or physician group practices which do not exist for the primary purpose of providing elective surgical care are exempt from certificate of
need requirements for ambulatory surgical centers as specified in 10-5.011(30).
This certificate of need exemption applies to offices and associated surgical suites maintained by one or more private physicians or a physician group which is used only by the physician or the physicians of the group
practice, and in which 50 percent or more of the patients treated annually are non-surgical
patients.
(b) Physician offices, or physician group practices applying for designation as an ambulatory surgical center (ASC) by the Health Care Financing Administration (HCFA) and who meet the requirements for exemption from certificate of need review under the provisions delineated under paragraph (2), shall submit a request for exemption from certificate of need to the Department.
The physician office or physician group practice shall provide the Department with at least 30 day's written notice of the proposed exemption from the certificate of need requirements for ambulatory surgical centers. Within 30 days of receipt of such written notice, the Department shall determine if the physician office or physician group practice is exempt and advise the applicant of its determination in writing. (Petitioner's Exhibit 6).
The proposed rule exempts physician offices and physician group practices from CON requirements for ambulatory surgical centers (ASC) when at least 50 percent of the patients treated annually in these facilities are non- surgical patients. The proposed rule purportedly implements the Federal Health Care Financing Administration's (HCFA) policy allowing physician offices which are exempt from State CON and licensure requirements to apply directly (to HCFA) to receive ASC designation for medical facility reimbursement purposes without first obtaining a CON. Currently, "Ambulatory Surgical Center" means a facility, the primary purpose of which is to provide elective surgical care and
in which the patient is admitted to and discharged from such facility within the same working day and which is not part of a hospital. However, a facility existing for the primary purpose of performing therapeutic abortions, an office maintained by a physician for the practice of medicine, or an office maintained for the practice of dentistry shall not be construed to be an ASC. Section 395.002(2), Florida Statutes (1985). DHRS is trying to implement what it believes to be a statutory CON exemption for doctor's offices through the proposed rule. In so doing, HRS considers physicians' offices to be indistinguishable from physician group practices. In this regard, the relevant statutes do not reference physician group practices.
Historically, HRS would not certify physician offices as medicare providers (in its role as surveyor for HCFA) because such certification entails the requirement that a physician's office comply with the State ASC Law. In short, a physician's office wishing to become an ASC had to satisfy both CON and State licensure requirements in order to be certified as a medicare providing ASC. Prior to promulgation of the proposed rule, DHRS never had a policy that group practices or physicians with operating suites are excluded from the statutory definition of an ASC. DHRS has no exemptions or exclusions for physicians' groups with surgical suites so that they could become ASCs for medicare certification. (Testimony of Tom Porter, previous supervisor for DHRS' Certificate of Need Program). DHRS took the position that it was without authority to grant an exemption to physician group practices and the related offices as an associated surgical suite without such facility having first obtained a CON as an ASC prior to offering such services. DHRS also took the position that a physician wishing to do minor surgical procedures as a sub-part of his office practice would not be required to obtain a CON as an ASC. These services could be done as an ancillary part of the physician's office. (Testimony of Gene Nelson, former Administrator, Office of Comprehensive Health Planning and Administrator of the Office of Community Medical Facilities prior to Mr. Maryanski's tenure with DHRS).
Section 381.495, Florida Statutes, provides for several defined exemptions from CON review. As stated above, the proposed rule purports to grant an exemption to physician offices or to physician group practices from State CON requirements. Section 381.493 (3)(a), Florida Statutes (1985), states, in relevant part, that an office maintained by a physician for the practice of medicine is excluded from the definition of an ASC. The referenced statute does not grant an exemption from the ASC regulation nor has DHRS previously exempted a person or entity from CON review under such circumstances. DHRS has historically distinguished between a physician performing minor surgical procedures as an ancillary part of his office versus a full service ASC.
HCFA clarified in Memorandum FQA-731, Ambulatory Surgical Center regulations relating to compliance with state licensure requirements and the application of state CON provisions as a prerequisite for medicare certification. (Pet. Exh. 8) In states where ASC licensure laws are in effect, facilities seeking to participate in medicare must meet such licensure requirements. Thus, 42 CFR Section 416.40 states, in pertinent part, that the ASC must comply with state licensure requirements. CON provisions must be met as a prerequisite for medicare licensure certification for an entity to operate legally within a state and CON approval is required before the decision to award a license is made. In instances where licensure is not required either by virtue of the absence of an ASC Licensure Law or the exemption of certain entities from the licensure law, compliance with CON provisions is not necessary for medicare eligibility as an ASC.
It is through a series of correspondence between Mr. Robert Streimer of HCFA and Mr. Marshall Kelley, DHRS' Assistant Secretary for Program Planning that affords the proffered "basis" for the proposed rule. (TR 87). The Streimer letter provides that ASC services performed in a physician's office which is not required by state law to be licensed as an ASC and which meets all medicare ASC requirements would be covered and reimbursed by medicare at the ASC rate. As noted, DHRS historically took a different position. Nowhere in Mr. Kelley's letter to Mr. Streimer did HRS identify the specific criteria that would relate to an exemption request in Florida as currently stated in the proposed rule.
DHRS, based on the proposed rule, now takes the position that any physician having a operating room and furnishing surgical procedures for less than 50 percent of his or her patients would be entitled to an exemption from CON requirements and in turn be entitled to apply for certification from HCFA as an ASC for ASC reimbursement (facility fee). The proposed rule allows for surgery currently performed in a physician's office to qualify for higher reimbursement from medicare (i.e., a facility fee). DHRS uses as authority for the proposed rule, Section 381.493(3)(a), Florida Statutes. Prior to receipt of Streimer's letter, DHRS considered HCFA's policy to be that if a facility did not have a CON and was not licensed as an ASC, there would be no medicare certification forthcoming from HCFA. The Streimer letter purportedly clarifies HCFA's policy although it does not represent a change in that policy. (Petitioner's Exhibit 6).
The proposed rule defines "primary as 50 percent or more of the patients treated annually as being non-surgical patients. However, according to the 1982 federal regulations, an entity seeking application and certification as a medicare ASC must be dedicated exclusively to the provision of Ambulatory Surgical Services (42 CFR Section 416.2). Federal Rules provide that the requirement for ASC's to be certified in order to receive medicare payments was expected to exclude physicians offices. There appears to be no federal regulation dealing with reimbursement for the surgical procedures which are to be done in physicians' offices. To satisfy HCFA's certification requirements, an applicant must satisfy the relevant state licensure requirements if any, and meet federal certification requirements. As presently codified, it is impossible to simultaneously satisfy the proposed rule and the federal ASC definition contained in 42 CFR Section 416.02. Thus, an entity could not "exclusively" provide ASC services and at the same time not exist for the "primary" purpose of providing elective surgical care on an outpatient basis. They are mutually exclusive since the two definitions are inconsistent.
The Streimer letter initiated HRS's evaluation of current statutes and the proposed rule is, according to HRS, designed to implement current statutes.
HCFA's policy is that if a facility legally provides or is allowed to provide elective surgical procedures in Florida, without having to be licensed as an ASC or having gone through the CON process, it is inappropriate to require the facility to obtain a CON and be licensed as an ASC as a condition of that facility being approved for medicare reimbursement at the ASC rate. Prior to HCFA's correspondence, HCFA required an applicant for medicare ASC certification to meet State Law and also meet its certification requirements. This is still the case and the HCFA's correspondence to DHRS did not change that requirement.
The purpose of the Health Facility and Health Services Planning Act, more commonly known as the CON law, (sometimes called the Act) is to protect the
public health, safety and welfare of Floridians. These protections are further defined as a necessary increase in health care, minimizing duplication in health services, and minimizing situations where there is an underutilization of existing health care resources.
The proposed rule does not relate to or otherwise address any "need" issue or capacity issue and contrary thereto, allows for uncontrolled growth of surgery suites as long as the physician group practice has 50 percent or more of total patients treated as non-surgical patients. It can be expected that there will be a proliferation of physicians, solo or group practices, with physician surgical practices developing in addition to hospital out-patient surgery. Additionally, there is no physical constraint on the location of the physician and a physician's group practice.
Adoption of the proposed rule will also increase the cost of the total health care system in Florida as follows:
The average cost per procedure increases when procedures are spread out over a greater number of fixed facilities and because of incentives that would be inherent in this additional capacity for additional unnecessary utilization.
Physicians would receive a facility fee in addition to a
professional fee. Physicians would thereby receive more money for doing the
same procedures they are currently doing in their offices without the facility fee.
The effect of the introduction of surgery centers where there is already excess capacity in hospitals and in freestanding surgery centers is to increase the cost of health care to the community. With the addition of new facilities, there are added fixed costs placed into the system that would remain until the facility becomes outmoded. With the addition of fewer procedures spread over more fixed costs, the average cost per procedure likewise increases even though the cost to an individual patient might appear to be lower in an alternative setting. Excess capacity leads to underutilization with the resultant increase in the rates for surgery. Without a capacity constraint, there will be more elective surgery performed.
With the approval of the proposed rule, a doctor's office will be eligible for medicare reimbursement for a facility fee. Medicare reimbursement for a facility fee is unique to ASCs and does not apply to surgical procedures performed in a doctor's office. The purpose behind reimbursing for facility fees is that there is considerable overhead associated with performing relatively complex surgical procedures which require an operating room. If procedures are so simple as to be safely performed in a doctor's office, the intent of the rule is to distinguish between these two settings. It is desirable for procedures to be done in a doctor's office that are simple because it is the lower cost setting. Procedures performed in a physician's office will not qualify for the facility fee reimbursement and overhead payment because of the simplistic nature of the procedures and the lack of need for sophisticated equipment which is currently being used in ASCs. The federal regulations were intended to remove hospital surgery to ASCs, if appropriate, and to remove minor surgery to doctors' offices in order to avoid reimbursement for procedures which
can be done in a less sophisticated setting. If more procedures are shifted to medicare certified ASCs, there would be an additional facility fee and physicians would be eligible for this reimbursement.
An example of the operational effect of the proposed rule is the scenario surrounding Doctor Stephen S. Spector and the Presidential Eye Surgery Center in Palm Beach County. Doctor Spector was denied a CON for an ASC based on a lack of need for additional operating suites in Palm Beach County. After DHRS made its initial decision denying Dr. Spector's CON, he petitioned for a formal administrative hearing. A Recommended Order was entered denying Dr. Spector a CON and HRS then issued a Final Order denying a CON to Dr. Spector. Dr. Spector has since simply requested an exemption for a freestanding ASC pursuant to the proposed rule. DHRS will entertain this request and if granted, Dr. Spector will be entitled to medicare certification and a facility fee for surgical procedures performed in his office.
The proposed rule will encourage the massive proliferation of outpatient surgery facilities and outpatient surgery suites. 3/ Evidence adduced at final hearing indicates that CON approved and licensed freestanding ambulatory surgery centers are currently underutilized and not operating at optimal capacity. The result will be increased hospital and ASC costs per unit because fixed costs must then be spread over a smaller patient base. It is likely that there will be underutilization of existing facilities. The proposed rule does not foster the purposes of Florida's CON law and it will not restrain increases in health care costs. The proposed rule will enhance or maximize unnecessary duplication and promote underutilization of existing resources.
Pursuant to Section 120.54(2), Florida Statutes (1985), the Department is required to prepare an economic impact statement of the proposed rule. For the proposed rule, HRS states, in part, in its economic impact statement as follows:
The proposed amendment is expected to have an economic impact on hospital outpatient departments and ambulatory surgical
centers licensed by the State. It is expected that some Medicare patients who previously have been referred to hospital outpatient departments or a freestanding ambulatory surgical center licensed by the State may have their elective surgeries performed in the physician's group practice. In addition, the proposed rule may encourage the development of physician group practices with surgical suites since they are exempted from the certificate of need process and State licensure requirements. The fiscal impact on hospitals and ambulatory surgical centers cannot be estimated since the Department has no data regarding the number of potential applicants under this Rule, the location of those applicants, the volume of surgeries which may be performed by these entities, or the number of surgeries which would have been performed in
hospital outpatient departments or State licensed ambulatory surgical centers in the absence of these new entities. (Petitioner's Exhibit 7).
The economic impact statement for the proposed rule does not provide any data or method used in making the required economic impact estimates. The statement does not include any data to analyze whether the rule will impact ASCs having less than one million dollars net worth and less than 25 employees or whether the proposed rule will have an economic impact on hospitals and ambulatory surgery centers. Although HRS has indicated that the exact amount of the fiscal impact is impossible to estimate due to the unknowns respecting the number of physician offices or group practices that will qualify for the exemptions and therefore no analysis was undertaken or developed, studies could have been made to determine the effect any level of participation would have on hospital costs and utilization of existing facilities. Although the task of compiling such data would, no doubt, be arduous, evidence adduced at final hearing indicates that DHRS could have, with effort, compiled a data base with a stratified sample which would have been reliable and could forecast the likely effect of the proposed rule within an acceptable margin of error.
DHRS did not compile data which would provide an estimate as to the number of patients who would choose the physician's office over other facilities that perform Ambulatory Surgery. DHRS never requested input from hospitals or outpatient surgery centers with respect to pay or patient mix. DHRS conducted no surveys with respect to the number of potential applicants under the proposed rule. DHRS considered it not relevant to examine the capacity of existing freestanding surgery centers or hospitals having outpatient surgery facilities. DHRS conducted no studies to determine the accessibility of existing ASCs and hospital ASCs. No studies were done to examine the impact, as to the cost to patients, that the proposed rule is likely to have on existing providers. No studies were done to assess the impact the proposed rule will have on the medicare trust fund. No studies were done to determine the impact, if any, on Florida small and minority businesses. It is true that a great deal of the needed data was not readily available to HRS whereas, on the other hand, it made no attempt to gather such data. DHRS has the ability to assess the number of surgeries that could be performed in hospital outpatient departments and ASC's since DHRS does such compilations on a day to day basis when it projects the need for new ASCs. DHRS could have commissioned studies to determine the effect any level of participation would have on hospital costs and utilization. Development of an adequate data base and a meaningful economic impact of the proposed rule is paramount in view of the legislative mandate (to DHRS) to contain health care costs. Rules are promulgated to further the purpose and objective of the statutes they implement. To accomplish this, they must be consistent with the statute. Here, the purpose of the statute is cost containment. Evidence adduced at final hearing reveals, without contradiction, that the proposed rule will increase health care costs, contrary to the major purpose for its existence.
Finally, DHRS compiled no data as to the impact on the ability of hospitals to provide indigent care under the proposed rule. As example, Florida Hospital projects that it will provide $48,000,000 in uncompensated care for fiscal year 1986. If the hospital were to lose revenue as result of this proposed rule, the level of indigent care will also correspondingly be reduced in order to offset the loss of revenue. Other parties herein provide services to indigent persons. The proposed rule does not require these exempt facilities to provide indigent care.
In addition to the above economic impact which will be brought about by the proposed rule on the Health Care system as a whole, the proposed rule will have an economic impact on the existing hospitals and ASC's. (TR 276-277; 438-440). As example, one Petitioner herein advises that if one surgery suite were added by an existing physician group or formed near the hospital, the hospital will lose approximately $481,000 per annum.
By letter dated August 29, 1986, DHRS forwarded a copy of the purposed rule to the statewide and local health councils requesting comments by September 12, 1986. The public hearing on the proposed rule was scheduled for October 20, 1986. Neither health council (state or local) participated in the public hearing for the proposed rule nor has either council submitted comments respecting the proposed rule. The notice provided to the local and statewide health councils for comments on the proposed rule was adequate and afforded the various councils an opportunity to voice any concerns or provide input about the proposed rule.
Dr. Montgomery, an Intervenor herein, will receive additional medicare reimbursements of $500.00 per patient for a facility fee under the proposed rule. Dr. Montgomery approximated that he performed 320 cataract surgeries per year of which approximately 300 patients are paying patients. Approximately 85 percent of those patients are over 65. Therefore, Dr. Montgomery will receive medicare reimbursement for 255 patients or approximately $127,500.00 in additional fees if his office is certified as exempt under the proposed rule.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.54(4), Florida Statutes (Supp 1986).
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of Respondent, Department of Health and Rehabilitative Services, is derived from Section 120.54(1), Florida Statutes. Generally, to successfully challenge the validity of a proposed agency rule, the challenger must show: (1) the agency adopting the rule has exceeded its authority, (2) the requirements of the rule are not appropriate to the ends specified in the legislative act, or (3) that requirements in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious. Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). Additionally, the proposed rule may be held to be invalid where the agency provides an inadequate statement of economic impact. Section 120.54(2)(d), Florida Statutes (Supp. 1986).
The Legislature has enacted the Health Facilities and Health Services Planning Act. Section 381.493, et seq., Florida Statutes (1985). It is therein the express intent of the Legislature "to stimulate the establishment and continuous reevaluation of community-oriented health goals by providers, consumers, and public agencies" and "to plan the rendering of health services in order to meet and provide for community health needs in a responsible and effective manner, and this planning by the community must be assisted by a state health planning agency which is intended to coordinate the activities of all health planning agencies." (Emphasis added). Section 381.493(2), Florida Statutes (1985), provides further:
Every consideration shall be given to elimination of unnecessary duplication of health services and the provision of health services which are not currently available or which are insufficiently provided within the community . . . . (emphasis added)
Section 381.493(2), Florida Statutes (1985).
The Legislature requires that all health care related projects including projects to construct ambulatory surgical centers be required to obtain a certificate of need. Section 381.494(1)(b), (c), Florida Statutes (1985). Further, HRS has the specific duty to promulgate rules and minimum standards for the issuance of certificates of need. Section 381.494(3)(b), Florida Statutes (1985).
A bit of historical perspective is in order. In 1975, the Legislature introduced the concept of ambulatory surgical centers in the Health Facilities Planning Act. Ch. 75-167, Section 1, Laws of Florida. See also Intervenor's Exhibit 1. The Legislature defined ambulatory surgical center to mean:
[A] facility the primary purpose of which is to provide elective surgical care and in which the patient is admitted to and discharged from said facility within the same working day and is not part of a hospital. However, a facility existing for the primary purpose of performing terminations of pregnancy or an office maintained by a physician for the practice of medicine, or an office maintained for the practice of dentistry shall not be construed to be an ambulatory surgical center.
Ch. 77-24, Section 1, Laws of Florida. See also Chapter 77-24, Section 13, Laws of Florida, providing the same definition of ambulatory surgical center which appeared more fully at Section 381.493(3)(j), Florida Statutes. Also in 1977, the Legislature enacted additional amendments to the Health Facilities and Health Services Planning Act. Ch. 77-400, Laws of Florida. The definition of ambulatory surgical center is slightly different from the definition previously stated. Id. at Section 1. The definition of ambulatory surgical center as set forth by the Legislature in Chapter 77-24, Sections 1 and 13, Laws of Florida, has not been materially changed and now appears more fully as follows:
(a) "Ambulatory surgical center" means a facility the primary purpose of which is to provide elective surgical care and in which the patient is admitted to and discharged from such facility within the same working day and which is not part of a hospital. However, a facility existing for the primary purpose of performing therapeutic abortions, an office maintained by a physician for the practice of medicine, or an office maintained for the practice of dentistry shall not be
construed to be an ambulatory surgical center.
See also Section 395.002(2), Florida Statutes (1985).
The Legislature has further provided that HRS has the authority to issue licenses to health care facilities including but not limited to ambulatory surgical centers, Section 381.493(g), Florida Statutes (1985), and is mandated by law not to "issue a license to any health care facility, health service provider, hospice, or part of a health care facility which fails to receive a certificate of need." Section 381.495(1), Florida Statutes (1985). The Legislature has provided for several narrow exemptions from the certificate of need law which are inapplicable to ambulatory surgical centers.. See Section 3Ol.495(4)(a), (b), Florida Statutes (1985). Consistent therewith,
It is the intent of the Legislature to provide for the protection of public health and safety in the establishment, construction, maintenance, and operation of hospitals and ambulatory surgical centers by providing for licensure of same and for the development, establishment, and enforcement of minimum standards with respect thereto. (Emphasis added)
Section 395.001, Florida Statutes (1985). See also Rule 10D-30, et seq., F.A.C. In particular, no person shall establish, conduct, or maintain an ambulatory surgical center in this State without first obtaining a license under Chapter
395 and "[i]t is unlawful for any person to use or advertise to the public, in any way or by any medium whatsoever, any facility as a[n] `ambulatory surgical center' unless such facility has first secured a license under the provisions of this part." Section 395.003(1)(b)1, Florida Statutes (1985). There are no statutory exemptions from these licensure requirements. See Section 395.001, et seq., Florida Statutes (1985).
It is a cornerstone of administrative law that administrative bodies or commissions, unless specifically created in the constitution, are creatures of statute and derive only the power specified therein. (Citations omitted.) As such, administrative bodies have no inherent power to promulgate rules and must derive that power from a statutory base. Section 120.54(14), Florida Statutes (1981)
Grove Isle Ltd. v. State, Department of Environmental Regulation, 454 So.2d 573 (Fla. 1st DCA 1984). See also, State ex rel. Greenberg v. Florida State Board of Dentistry, 298 So.628 (Fla. 1st DCA 1974), cert. dismissed, 300 So.2d 900
(Fla. 1974).
Furthermore, "[i]t is axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute . . . A rule which purports to do so constitutes an invalid exercise of delegated legislative authority. (citation omitted.)" State Department of Business Regulation v. Salvation Limited, Inc., 452 So.2d 65 66 (Fla. 1st DCA 1984). See also, Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980); Department of Labor and Employment Security v. Florida Home
Builders Association, 417 So.2d 746 (Fla. 1st DCA 1982); Department of Insurance
v. Insurance Service Office, 434 So.2d 908 (Fla. 1st DCA 1983).
HRS proposes to exempt physician offices and physician group practices which do not exist for the primary purpose of providing elective surgical care from the CON requirements for ambulatory surgical centers. Proposed Rule 10- 5.005(2)(a). This proposed Rule purportedly serves to implement Section 381.494(7) and (8), Florida Statutes (1985). Neither of these subsections deal with exemptions from CON review nor licensure for ambulatory surgical centers. See generally Section 120.54(7), Florida Statutes (Supp. 1986). Additionally, the Legislature has specifically delineated those health care projects for services which are exempt from CON review and licensure. See Section 381.495(4), Florida Statutes (1985). The Legislature has not seen fit to exempt from either CON review or licensure, physician offices or physician group practices which do not exist for the primary purpose of providing elective surgical care. See generally, Ocasio v. Bureau of Crimes, 408 So.2d 751, 753 (Fla. 3d DCA 1982).
It is a general principle of statutory construction that the mention of one thing implies the exclusion of another: expressio unius est exclusio alterius. Hence, where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned. See generally
49 Fla. Jur.2d Statutes, Section 126 (1984). The statutory CON exemptions are narrow and limited and cannot be expanded by HRS pursuant to the proposed rule. Genesee Corporation v. Owens, 20 So.2d 654 (Fla. 1945). See generally Department of Health and Rehabilitative Services v. Florida Psychiatric Society,
382 So.2d 1280 (Fla. 1st DCA 1980), in which the Court upheld a Hearing Officer's finding of an invalidity of a proposed rule on the basis of lack of legislative authority. Id. at 1285. See also Department of Transportation v. James, 403 So.2d 1066 (Fla. 4th DCA 1981).
Additionally, the Legislature has provided a narrow exclusion to the general working definition of ambulatory surgical center by providing, in part, that "an office maintained by a physician for the practice of medicine . . . shall not be construed to be an ambulatory surgical center." Section 381.493(3)(a), Florida Statutes (1985).
It cannot be said that the Legislature meant to expand "an office maintained by a physician for the practice of medicine" to include "physician offices or physician group practices which do not exist for the primary purpose of providing elective surgical care This position is bolstered by reviewing the Health Facilities and Health Services Planning Act as a whole and the licensure statutes which in no way can be construed to provide an additional exclusion or an exemption for that which is proposed by HRS. See generally 49 Fla.Jur.2d Statutes Section 115 (1984).
The federal government has promulgated regulations dealing with requirements for obtaining medicare reimbursement by ambulatory surgical centers. 42 CFR Section 416.2. These regulations provide in part that "ambulatory surgical center or ASC means any distinct entity that operates exclusively for the purpose of providing surgical services to patients not requiring hospitalization, has an agreement with HCFA under medicare to participate as an ASC, and meets the conditions set forth in subpart (b) of this part." (emphasis added) Id.
This proposed rule provides an exemption for physician offices and physician group practices which do not exist for the primary purpose of providing elective surgical care. The stated purpose is to allow these physician offices and physician group practices to apply directly to HCFA to receive designation as an ASC for medicare. This would be impossible. If an ASC met the definition of ASC in Florida, it could not meet the federal definition of ASC. The two definitions are mutually exclusive. The proposed Rule cannot accomplish what it set out to do. In addition, and consistent with the foregoing comments and definition of ambulatory surgical center, the regulations require that the ASC comply with state licensure requirements. 42 CFR Section 416.40. The federal government has not chosen to exempt "physician offices or physician group practices which do not exist for the primary purpose of providing elective surgical care from the definition of ambulatory surgical center. As noted above, neither has the State of Florida.
The proposed Rule is further invalid since HRS has failed to provide an adequate statement of economic impact. Section 120.54(2), Florida Statutes (Supp. 1986). See also Department of Health and Rehabilitative Services v. Delray Hospital Corporation, 373 So.2d 75 (Fla. 1st DCA 1979). The Legislature requires that an agency prepare an economic impact statement when promulgating a rule. In addition, "the materiality of the economic impact statement to the rule-making process cannot be given short shrift. Preparation of the statement is a sobering task, one designed to arrest agency discretion bordering on the despotic, and to channel it through logic and reason to a rational end.
Compiled conscientiously, an economic impact statement can shield an otherwise valid rule from collateral attack on the basis that, as applied, the rule would be devastating economically and therefore arbitrary and capricious. Cf. Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978)(defining "arbitrary and capricious" in the context of legislative authority for an agency rule); Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937, 941 (Fla. 1st DCA 1983). HRS' economic impact statement appended to the proposed rule is inadequate especially in light of the express intent of the Legislature that unnecessary services not be duplicated and that costs be contained. See also Morton F. Plant Hospital Association v. State, 491 So.2d 586, 588 (Fla. 1st DCA 1986), concluding that "a primary goal of the CON process is to contain the cost of medical care."
HRS has been commanded to give every consideration to "the elimination of unnecessary duplication of health services and the provision of health services which are not currently available or which are insufficiently provided within the community." Section 381.493(2), Florida Statutes (1985). The well- known statutory criteria by which CON applications are reviewed expressly requires HRS to review a CON application in the context of, in part, "[t]he availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, adequacy of like and existing health care services and hospices in the service district of the applicant." Section 381.494(6)(c)2, Florida Statutes (1985). See also Home Health Professional Services, Inc. v. Department of Health and Rehabilitative Services, 463 So.2d 345, 347 (Fla. 1st DCA 1985). In addition, HRS is required by law to approve or deny a CON application based upon a balanced review of the statutory criteria. The proposed rule precludes "a balanced consideration of all the statutory criteria." Department of Health and Rehabilitative Services v. Johnson & Johnson Home, 447 So.2d 361, 363 (Fla. 1st DCA 1984); see also South Miami Hospital v. Department of Health and Rehabilitative Services 7. FALR 5491, (DHRS Nov. 5, 1985). Promulgation of the proposed rule negates the important health care planning process as mandated by the Legislature and cannot stand.
It is conceded by HRS that the proposed rule allows uncontrolled growth of surgical suites as long as the group has 50 percent or more of the patients treated as non-surgical patients. HRS has attempted to promulgate this rule without any operative facts which demonstrate the rule will foster appropriate health care planning and provision of appropriate health care services. HRS conceded that the proposed rule does not necessarily eliminate unnecessary duplication of health services as defined in Section 381.493, Florida Statutes (1985). The only perceived financial benefit to enacting the proposed rule is to allow physicians to receive medicare facility reimbursement. Yet, there is no evidence in the record that the cost implications of this proposed rule on medicare have been considered. In fact, this was one of the important issues addressed by HRS in Steven S. Spector, M.D., P.A. v. Department of Health and Rehabilitative Services, 8 FALR 4319 (DHRS, May 19, 1986), app. vol. dismiss., Case No. BN-4l4 (Fla. 1st DCA, Nov. 3, 1986). HRS adopted the following finding of fact by Hearing Officer Caleen:
A primary purpose of the CON law is containment of health care costs to a community. In health care planning, the community includes persons who pay taxes to support the medicare system. The effect of the policy would be to shift the cost of facility fees, heretofore paid by the relatively few who receive the services and who choose to utilize an unlicensed surgical facility, to the community-at-large through the tax-based medicare system. Yet the justification for and magnitude of this cost- shifting, acknowledged to be the driving force behind Petitioner`s application, has not been articulated or, on this record, fairly considered.
8 FALR at 4334. HRS, in its Final Order, stated, in part, as follows:
Obviously there is a benefit to petitioner from the obtaining of a CON. His operation will have an attractive feature to offer which presently only CON approval [sic] facilities have. The regulatory scheme is premised on the proposition that optimal procedures will contain costs. The granting of this CON will have an impact on the existing CON approved facilities because they are not at an optimum level of operation and the addition of another CON approvaled [sic] facility with the attractive feature inherent in the approval will hinder their efforts to perform at optimal levels. This of course must be balanced against the benefits of competition. . . .
8 FALR at 4320. HRS further stated: "Costs are contained when procedures which can safely be performed are done on an outpatient basis. This does not mean that costs cannot be further contained by regulating the proliferation of ambulatory surgical centers. The Legislature recognized this when they included ambulatory surgical centers in the law." 8 FALR at 4321.
Testimony was elicited at final hearing indicating that CON approved and licensed freestanding ambulatory surgical centers are currently underutilized and not operating at optimal capacity. The same can be said for existing hospital outpatient services. Notwithstanding the reasons given by HRS in denying Steven Spector's CON, HRS now takes the incongruous position that it would entertain a request by Dr. Spector for an exemption to provide the very same services which HRS previously determined to be improper and without justification under the existing CON review criteria.
Finally, HRS has stated that "the proposed rule is expected to have no adverse impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. In effect, the proposed rule is expected to further development of small businesses. [P. Exhibit No. 7, at p. 3]. HRS performed no studies to determine whether any existing ambulatory surgical centers had a net value of less than one million dollars as defined in the Act. No analysis on the number of employees of the existing ASCs was done. Based upon the foregoing, the proposed rule is invalid because of its defective economic impact statement.
The proposed rule is further invalid because it is arbitrary and capricious. The First District Court of Appeal has cogently stated that:
A capricious action is one which is taken without thought or reason or irrationally.
An arbitrary decision is one not supported by facts or logic or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.
The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one indeed. However, the degree of such required proof is by a preponderance of the
evidence. . .
Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d at 763. See also Humana, Inc. v. Dept. of Health, 469 So.2d 889, 890 (Fla. 1st DCA 1985).
The proposed Rule specifically contradicts the primary goals of the CON statute as noted above. See, Morton F. Plant Hospital Association v. State,
491 So.2d 586, at 588. It does not foster health care cost containment or purport to protect the health care buying citizens of Florida. Id. This Rule would permit additional federal tax monies to be paid to physicians for surgery procedures that they are now doing without being reimbursed for a facility fee. This will cause an increased burden on the taxpayer to pay additional money from the Medicare system, i.e., a facility fee, which it is not now paying. The Rule would allow physicians and their practices to become ambulatory surgical centers for purposes of obtaining Medicare reimbursement, but would exempt them from being defined as ambulatory surgical centers under Florida law, all for the single purpose of allowing the greater facility reimbursement to the physicians from the taxpayers' funds and medicare.
Further, the proposed rule would allow the exemption where "offices and associated surgical suites maintained by one or more private physicians or a physician group which is used only by the physician or the physicians of the group practice, and in which fifty percent or more of the patients treated annually are non-surgical patients." Proposed Rule lO-5.005(2)(a). [T 1061- 1062]. In addition, there is no evidence in the record which would support a conclusion that the proposed rule would lower health care costs. Conversely, there is competent substantial evidence in the record to support the conclusion that health care costs will increase unnecessarily, contrary to the intent and purpose of the Act. The proposed rule was adopted "without thought or reasons.
469 So.2d at 890. The proposed rule is arbitrary and capricious and invalid. See also, Home Health Services and Staffing Association v. Dept. of Health and Rehabilitative Services, 8 FALR 1510, 1533 (DHRS, March 12, 1986).
Finally, the proposed rule is invalid because it is an unlawful delegation of legislative authority. The non- delegation doctrine has been fully discussed by the Supreme Court of Florida in Askew v. Cross Key Waterways,
372 So.2d 913 (Fla. 1978). The doctrine is based upon the prohibition against delegating legislative power and policy making decisions to an executive agency. As the Court noted:
When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes a lawgiver rather than the administrator of the law.
Id. at 918-19. For an administrative agency to flush out and articulate legislative policy is far different from that agency making the initial determination of what policy should be. The standard articulated in Askew is that "fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment established in the program." Id. at 925. There are no standards and guidelines set forth in the Act which afford HRS any solace in promulgating its proposed rule. In fact, the proposed rule, on its face and as applied, is contrary to the express legislative intent set forth in the Act. There is no authority in the statutes or in reason for the exemption. The "rule-making process cannot be used to make legal that which there was no authority to do in the first place." Great American Banks v.
Division of Administrative Hearings, 412 So.2d 373, 375 (Fla. 1st DCA 1981)(on motion for clarification).
ORDER
Based upon the foregoing, it is hereby concluded that proposed rule 10- 5.005(2)(a) and (b) is an invalid exercise of delegated legislative authority.
DONE and ORDERED this 1st day of May, 1987, in Tallahassee, Florida.
JAMES E. BRADWELL
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 1st day of May, 1987.
ENDNOTES
1/ Petitioners Florida Hospital Association, Inc., Mease Hospital and Clinic, St. Mary's Hospital, Lee Memorial Hospital, Bethesda Memorial Hospital and Bascom Palmer Eye Institute have filed a Motion to Strike Portions of Intervenor Montgomery's Proposed Final Order. Intervenor filed a response in opposition thereto on March 25, 1987. Petitioners' Motion to Strike and Intervenors' response is discussed and ruled upon herein.
2/ Specifically, Intervenor Montgomery alleges as a basis for invalidating the proposed rule; (1) the proposed rule references certain entities that are the subject of an unadopted rule (Rule 10-5.011 (30) which is presently being challenged, and (2) the proposed rule contains no reference to the statutory authority or the law being implemented as is required.
3/ Based on incipient agency policy, during the pendency of the proposed rule, DHRS has received numerous exemption requests from physicians and it (DHRS) has granted several exemptions.
APPENDIX TO THE FINAL ORDER IN CASE NUMBER 86-3894-R
Ruling on Respondent, Department of Health and Rehabilitative Services Proposed Final Order.
Paragraph 3, rejected-irrelevant.
Paragraph 4, substantially adopted. Paragraph 3, Final Order. Paragraph 5, adopted as modified, Paragraphs 5 and 6, Final Order. Paragraph 6, adopted in part, Paragraphs 5-10, Final Order.
Paragraph 7, rejected as conclusions and arguments and not factual findings.
Paragraph 8, rejected as being merely a recitation of the quoted statutes and HRS's conclusion and rationale.
Paragraph 9, rejected based on the determination herein that the Department failed to investigate other alternatives which were of paramount importance such as need and cost containment.
Paragraph 10, rejected for reasons stated in the paragraph 9, next above.
Paragraph 11, rejected for the reasons stated in paragraphs 9 and 10, next above.
Paragraph 12, rejected, irrelevant.
Paragraph 13, rejected as irrelevant, argument or not probative of the issues posed.
Paragraphs 14, 15, and 16, substantially adopted, Paragraph 20, Final Order.
Paragraphs 17-21 adopted in part. The remainder of paragraphs 17-21 is rejected based on other credible evidence found herein and is specifically set forth in paragraphs 18 and 19, Final Order.
Rulings on the Proposed Final Order of Petitioners, Florida Hospital Association, Inc., Mease Hospital and Clinic, St. Mary's Hospital, Lee Memorial Hospital, Bethesda Memorial Hospital and Bascom Palmer Eye Institute.
The Proposed Order of subject Petitioners is largely incorporated in this Final Order. However, the Proposed Order is in great detail replete with summaries of testimony, statement of the parties' legal positions and/or legal conclusions, rendering the proposed factual findings more in the nature of a brief or closing argument. It is thus impossible to rule on each of such proposed factual findings by Petitioner's counsel. However, each of the topics included has been addressed in either the Findings of Fact or Conclusions of Law sections of this Final Order.
Rulings on the Proposed Final Order of Petitioners, Florida Hospital, Medivision of Northern Palm Beach County, Inc., Medivision of Orange County, Inc., Medivision of Hillsborough County, Inc., Medivision of Northern Dade County, Inc., and Medivision of Miami, Inc. and Intervenors, Visual Health and Surgical Center, Inc. and HCA Health Services of Florida, Inc.
Paragraph 5, substantially adopted. The remainder of paragraph 5 is rejected as argument.
Paragraph 6, rejected as conclusionary and argument.
Paragraph 11, rejected as argument and analysis of testimony and not findings of fact.
Paragraph 25, rejected based on the determination herein that the statewide and regional health councils had adequate opportunities and sufficient notice to voice any concerns about the proposed rule.
Rulings on Intervenors Proposed Order
Paragraphs 11-14, rejected as contrary to other credited evidence as found in paragraphs 18 and 19, Final Order.
COPIES FURNISHED:
Kenneth F. Hoffman, Esquire Oretel & Hoffman, P.A.
2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32314-6507
Messrs, Jeffrey Boone, and Gregory
C. Roberts Attorneys at Law
Boone, Boone, Klingbeil and Boone, P.A. 1001 Avenida del Circo
Post Office Box 1596 Venice, Florida 34284
Robert A. Weiss, Esquire
Parker, Hudson, Rainer, Dobbs and Kelly The Perkins House, Suite 101
118 North Gadsden Street Tallahassee, Florida 32301
Ronald K. Kolins, Esquire
Moyle, Flanigan, Katz, Fitzgerald and Sheehan P.A.
Post Office Box 388
West Palm Beach, Florida 33402
Sandra Stockwell, Esquire
Culpepper, Pelham, Turner and Mannheimer
100 East Park Avenue Post Office Drawer 11300
Tallahassee, Florida 32302-3300
William B. Wiley, Esquire
McFarlain, Bobo, Sternstein, Wiley and Cassedy 666 First Florida Bank Building
Post Office Box 2174 Tallahassee, Florida 32316
Messrs. Robert D. Newell, Jr. and Phillip B. Miller, Esquires
200 South Monroe Street, Suite B Tallahassee, Florida 32301
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Liz Cloud, Chief
Bureau of Administrative Code Room 1801
The Capitol
Tallahassee, Florida 32399-0250
Carroll Webb, Esquire
Joint Administrative Procedures Committee Room 120, Holland Building
Tallahassee, Florida 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| May 01, 1987 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 01, 1987 | DOAH Final Order | Proposed Rule 10-5.005(2)(a) & (b) is contrary to express legislative intent Proposed Rule is an invalid exercise of delegated legislative authority. |
