STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DENTAL HYGIENIST )
ASSOCIATION, INC., )
)
Petitioner, )
)
vs. )
)
BOARD OF DENTISTRY, )
) CASE NO. 89-4427RP
Respondent, )
and )
) FLORIDA DENTAL ASSOCIATION, INC., )
)
Intervenor. )
) FLORIDA DENTAL HYGIENIST )
ASSOCIATION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-0258RP
)
BOARD OF DENTISTRY, )
)
Respondent. )
)
FINAL ORDER
On July 9 and 11, 1990, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Paul Watson Lambert, Esquire
1355 Mahan Drive
Tallahassee, Florida 32308
For Respondent: Allen R. Grossman, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601
Tallahassee, Florida 32399-1050
For Intervenor: John H. French, Jr., Esquire
Messer, Vickers, Caparello, French, Madsen & Lewis, P.A.
Post Office Box 1876 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
At issue in this case are: (1) the Petitioner's standing; (2) the validity of the Respondent's proposed amendment to F.A.C. Rule 21G-8.004(2) (the so- called designation rule), which would designate the Alabama Dental Hygiene Program (ADHP) as a dental hygiene college or school under Section 466.007, Fla. Stat. (1989); and (3) the validity of the Respondent's proposed amendment to
Rule 21G-8.004(3) (the so-called criteria rule), which would establish criteria for approval of a dental hygiene college or school under Section 466.007, Fla. Stat. (1989).
PRELIMINARY STATEMENT
This case consolidates the Petitioner's two Section 120.54(4) challenges to two different proposed rules promulgated by the Respondent, the Board of Dentistry. The first petition challenges a proposed amendment to F.A.C. Rule 21G-8.004(2) (the so-called designation rule), which would designate the Alabama Dental Hygiene Program (ADHP) as a dental hygiene college or school under Section 466.007, Fla. Stat. (1989). It was assigned Division of Administrative Hearings Case No. 89-4427RP. A petition to intervene filed by the Florida Dental Association (FDA) was granted without opposition.
While Case No. 89-4427RP was pending, the Board of Dentistry proposed a second rule, an amendment to F.A.C. Rule 21G-8.004(3) (the so-called criteria rule), which would establish criteria for approval of a dental hygiene college or school under Section 466.007, Fla. Stat. (1989). The Petitioner filed a second rule challenge to this second proposed rule, which was assigned Division of Administrative Hearings Case No. 90-0258RP, and moved without objection to continue the scheduled final hearing in Case No. 89-4427RP and consolidate it with Case No. 90
Association never formally moved to intervene in Case No. 90-0258RP, but the parties stipulated that it be permitted to participate fully as an intervenor in both cases.
In consideration of scheduling requirements, final hearing in the consolidated cases was set for July 9-11, 1990, and final hearing was held on July 9 and 11. At the hearing, the parties elicited the testimony of several witnesses and introduced many exhibits in evidence. The parties also agreed that the FDA would be allowed to submit the transcripts of two post-hearing depositions as additional evidence and that the Petitioner would be allowed to submit a transcript of one additional post-hearing deposition in rebuttal, if necessary.
The parties were allowed ten days after the filing of the last of the post- hearing deposition transcripts, or the filing of the transcript of the final hearing, whichever was later, to file proposed final orders. The transcript of the final hearing was filed on August 6, 1990, but no post-hearing deposition transcript was filed. At some point, the FDA decided not to take any post- hearing depositions, but the Petitioner still wanted to take a rebuttal deposition. Finally, the Petitioner moved to be allowed to take the deposition and, after a hearing on September 17, 1990, permission was denied. The parties were ordered to submit their proposed final orders by October 2, 1990.
Explicit rulings on proposed findings of fact contained in the parties' proposed final orders may be found in the attached Appendix to Final Order, Case Nos. 89-4427RP and 90
FINDINGS OF FACT
The Petitioner, the Florida Dental Hygienist Association, Inc., is a state association whose members are dental hygienists licensed to practice dental hygiene under Chapter 466, Fla. Stat. (1989). The Petitioner contends that the effect of the designation rule will be to allow inadequately educated dental hygienists to sit for examination for licensure in Florida with a resultant dilution of the quality of licensed dental hygienists available to practice dental hygiene in Florida. It is the purpose of the Florida Dental Hygienists Association to insure that the quality of dental hygiene practice is maintained and to insure that the persons licensed as dental hygienists in this state meet minimum education and training requirements.
The Challenged Rules
The proposed rule under challenge in Case No. 89
designation rule) would amend F.A.C. Rule 21G-8.004(2) by adding the language:
The Alabama Dental Hygiene Program sponsored by the Alabama Board of Dental Examiners is determined to be a dental hygiene college or school within the meaning of Section 466.007, F.S., and is hereby approved by the Board.
The proposed rule under challenge in Case No. 90
criteria rule) would renumber what is now (3) of F.A.C. Rule 21G-8.004 as (4) and would insert as (3) the new language:
Colleges or schools whose program meets the following criteria shall be approved by the Board for the purposes of Section 466.007(2)(b), F.S., upon submission of evidence which establishes compliance with
the following requirements:
The educational program provides at least 50 hours of formal preclinical training and one year of clinical training which shall include performance of a minimum of 75 prophylaxes.
The educational program provides instruction in the following subject areas as they relate to dental hygiene practice. The program shall consist of at least 260 total hours, at least 160 hours of which shall be provided through formal classroom instruction. Students shall be required to successfully complete examinations testing the subject matter presented through formal classroom instruction.
Anatomy;
Physiology;
Biochemistry;
General Chemistry;
Microbiology;
Pathology;
Nutrition;
Pharmacology;
Pain Control;
Tooth Morphology;
Head, Neck and Oral Anatomy;
Oral Embryoloty and Histology;
Oral Pathology;
Dental Materials;
Periodontology;
Radiography;
Clinical Dental Hygiene (clinical and didactic instruction);
Oral Health Education;
Community Dental Health;
Patient Management; and
Medical and Dental Emergencies (including basic life support).
Accredited Programs
Dental hygiene in Florida is taught in the community college system. There are nine community colleges that have dental hygiene programs, all of which are accredited by the Commission on Dental Accreditation of the American Dental Association. Course work requirements for a dental hygiene degree range from 70 to 95 academic credit hours over a two year plus time period. Florida dental hygiene programs require in excess of 70 credit hours (60 credits being the minimum that a student can have in order to receive an associate of arts degree). Typical of the dental hygiene programs are the dental hygiene programs at the Valencia Community College and the Pensacola Junior College Dental Hygiene Program, each of which requires a minimum of 84 credit hours for a degree. The program includes general education and science courses as well as dental hygiene courses. The curriculum is comprehensive and includes general education, basic sciences, and didactic and clinical dental hygiene education.
Education by Florida community colleges is offered at a minimum competency level reflected in standardized "curriculum frameworks" for each program. The frameworks establish a standardized guide for development of education programs and are required by state and federal law. The curriculum frameworks are adopted by the State Board of Education.
The curriculum framework for dental hygiene education makes clear that it is to meet the standards for accreditation by the Commission on Dental Accreditation of the American Dental Association. The dental hygiene curriculum frameworks are built on national standards to achieve "leveling," reasonable standardization of education allowing educational credit to be transferred from one school to another.
The Accreditation Standards for Dental Hygiene Educational Programs and the Procedures for Evaluation of Dental Hygiene Programs show that dental hygiene education at programs accredited by the Commission on Dental Accreditation is comprehensive.
The Commission on Dental Accreditation requires both didactic and clinical dental hygiene education to: (1) be offered at the college level in post-secondary schools or colleges accredited by a regional accrediting agency recognized by the Counsel on Post-Secondary Accreditation; (2) award an associate or baccalaureate degree; and (3) prepare students to continue their education. Regional accrediting agencies require general and liberal arts
education as part of the basic studies for each student. A basic science background in dental hygiene education helps students understand the transmission of diseases, such as AIDS. Liberal arts education helps prepare the dental hygienist for effective patient communication relating to dental hygiene.
Neither the curriculum frameworks nor the Commission's accreditation standards for dental hygiene education programs establish the number of hours of formal education for each of the components of the curriculum. Some of these components include the maintenance of patient financial records, the collection of fees, the maintenance of dental office inventory controls, the demonstration of public relations responsibilities, the demonstration of skills on office equipment, and the demonstration of employability skills including job interviews and appropriate job changes.
Florida's community college programs must also be accredited by the Southern Association of Colleges and Schools. This accrediting body requires all vocational programs at the associate level to offer a minimum of 25% of credit hours in general education and liberal arts which can include subjects such as sociology, government, humanities, art history, music appreciation, etc. In some of Florida's programs, liberal arts and general education may comprise as much as 50% of the dental hygiene curriculum. The dental hygiene curriculum requirements in Florida's community colleges go beyond the Commission on Dental Education minimum requirements in terms of the core dental hygiene instruction.
In post-secondary academia, the term "college" means an established institution of higher learning; the term "school" means an organized body that leads to a post-secondary degree. A school is usually organized within a college. A "program" is a term of art in academia that means an identified, organized course of study leading to a degree. Programs are offered within academic schools or colleges.
In practice, in dental hygiene academia, the terms "dental hygiene college," "dental hygiene school" and "dental hygiene program" are synonymous. The Commission on Dental Accreditation has accredited Florida's nine dental hygiene programs as opposed to the schools in which they reside. The Commission on Dental Accreditation of the American Dental Association accredits those organized courses of study that lead to a degree in dental hygiene, regardless of whether the course of study is labeled a "dental hygiene college," "dental hygiene school" or "dental hygiene program."
The Alabama Dental Hygiene Program
The Alabama Dental Hygiene Program (ADHP) is not accredited by, nor does it have status toward accreditation by, the Commission on Dental Accreditation of the American Dental Association.
The Alabama Dental Hygiene Program began in 1959 as a system of non- academic preceptorship training. Under the ADHP, any licensed dentist is approved by the state licensing board to provide on-the-job training in dental hygiene to dental assistants with at least one year experience as a dental assistant. 1/ (Candidates also must be at least 18 years of age and must be a high school graduate.) The sponsoring dentist is responsible for the clinical adequacy and thoroughness of training. The program is administered by the Alabama Board of Dental Examiners, which has final authority over it, in concert with the Alabama Dental Association. A candidate cannot enter the program without sponsorship by a dentist.
The Alabama Dental Hygiene Program now is a one year course of study that combines formal classroom education with hands-on clinical training. Participants receive approximately 165 hours of didactic lectures in 2 separate week-long sessions and 4 weekend sessions concurrent with the one year of preceptor training. Accredited programs generally include a minimum of approximately 1,000 classroom hours. Faculty and facilities for didactic lectures are provided by the University of Alabama College of Dentistry in Birmingham, Alabama, on a contractual basis. With the exception of one dental hygienist from North Carolina, all of the faculty members for the current ADHP class are on the UAB dental faculty. But it is not a program within or sponsored by the university, nor does the university give academic credit for it. It does not lead to a post-secondary degree.
The Alabama Dental Hygiene Program includes significantly less formal classroom education in all of the areas of general education and basic sciences and significantly fewer lectures in the clinical practice of dental hygiene than do accredited programs.
The Alabama Dental Hygiene Program does not include the following courses required in an accredited program: chemistry, head and neck anatomy, histology, periodontology, nutrition, public health, pharmacology, pathology, dental materials, law and ethics, sociology, psychology and English. A course in disease control, which is of particular importance since the onset of AIDS, and which requires a strong basic science and biology background, also is absent from the ADHP. Examples of some of the differences are:
ADHP ACCREDITED MODEL
LECTURE LAB TOTAL HRS.
ANATOMY & PHYSIOLOGY | 8 | 88 | 66 | 134 |
MICROBIOLOGY | 8 | 40 | 40 | 80 |
ORAL PATHOLOGY | 8 | 34 | 0 | 34 |
RADIOLOGY | 12.5 | 27 | 30 | 57 |
PREVENTIVE DENTISTRY | 12.5 | 36 | 6 | 42 |
A person trained in the Alabama Dental Hygiene Program would not receive academic credit at Pensacola Junior College or Valencia Community College for the training because it does not meet minimum standards.
Clinical training in the office of the sponsoring dentist is done by means of a series of modules which serve, in effect, as building blocks in imparting dental hygiene skills. Each module identifies a number of specific skills that the student must master and requires the sponsoring dentist to evaluate performance for each such skill. The sponsoring dentist must verify in writing that a module has been completed, and the successful completion of all modules is a prerequisite to graduation from the Program.
The use of the modules is an attempt to insure that all ADHP students are learning essentially the same skills over the same general period of time. However, the ADHP clinical training is less standardized than under accredited programs.
An ADHP student is likely to see more actual patients over the course of the clinical training than a student in a community college program. ADHP clinical training is administered to a one-to-one basis as opposed to the higher student-to-dentist ratio found in community college programs.
A great deal of quality control is inherent in the ADHP clinical training in that the student is learning on the sponsoring dentist's patients and he has a professional duty to make sure that a good job is done. However, the dental hygiene exam is the ultimate quality control device for ADHP in that a student must pass the exam in order to become licensed as a dental hygienist.
The clinical portion of the Alabama Dental Hygiene Examination is equivalent to the Florida Dental Hygiene Exam in content and in administration. A person who passes the Alabama exam would be expected to pass the Florida exam and vice versa. A six-year comparison of scores on the Alabama clinical exam achieved by ADHP graduates with the scores of graduates of traditional two- or four-year programs reveal that ADHP graduates do just as well as their college- trained counterparts. This is a strong indication of equivalency in terms of clinical abilities.
Data from the Alabama Dental Hygiene Licensing Exam also show that the Alabama Dental Hygiene Program graduates perform as well or better as candidates who take the National Board of Dental Hygiene examination. However, comparison of the two examinations is not valid because the National Board Examination is a "norm referenced test" whereas the Alabama Dental Hygiene Examination and the Florida license examination are "criterion referenced tests." There is no valid comparison of examination scores of graduates from the Alabama Dental Hygiene Program with graduates from accredited programs because the Alabama Dental Hygiene Program "graduates" are not eligible to sit for the National Board exam, the only standardized examination.
The Proposed Criteria
Proposed Rule 21G-8.004(3) provides that a college or school whose dental hygiene program meets the proposed rule criteria shall be approved by the Board of Dentistry. There are 21 subjects listed in the rule, but it is unclear whether those subjects are to be included in the 160 hours of formal classroom instruction or under another setting. There are no minimum number of hours that are attendant to any of the listed subjects. It is not clear whether the hours referenced are academic or actual clock hours. The rule is silent as to the method by which the clinical training is to be provided. The proposed rule is unclear as to its academic requirements and the hours of instruction required. The proposed rule seems to be approving a preceptor or apprenticeship type of dental hygiene training which is similar in structure to the Alabama Dental Hygiene Program.
Comparison of ADHP and Criteria with Accreditation Standards
The Board of Dentistry bases the proposed rules on a finding that dental hygienists who are trained by the ADHP, or who would be trained in a similar program meeting the requirements of the proposed criteria rule, would by adequately trained to safely and competently perform dental hygiene in dental practices in Florida. Based on the evidence presented, such a finding would be neither arbitrary nor capricious. But the evidence also shows that the training given in the ADHP, and training that would be given in a similar program meeting the requirements of the proposed criteria rule, is not the equivalent of the training given in accredited programs.
CONCLUSIONS OF LAW
This is a Section 120.54(4), Fla. Stat. (1989), challenge to the validity of two proposed rules.
28. Section 120.54(4)(a), Fla. Stat. (1989), states:
Any substantially affected person may seek an administrative determination of the
invalidity of any proposed rule on ground that the proposed rule is an invalid exercise of delegated legislative authority.
The Petitioner's Standing
The Respondent and the Intervenor raise the elusive issue of the Petitioner's standing. A review of the cases cited by the parties discloses a history of hearing officers' attempts to follow the various court decisions on standing. Seemingly one step behind the courts, the hearing officers often have missed the target. On the other hand, it is possible that the target sometimes was moved after the hearing officer took aim and fired. In any event, a brief look at some of this history is helpful.
Apparently trying to follow previous court decisions in Florida Dept. of Offender Rehab. v. Jerry, 353 So. 2d 1230 (Fla. 1st DCA 1978), and in Dept. of Health and Rehab. Services v. Alice P., 367 So. 2d 1045 (Fla. 1st DCA 1979), the hearing officer below in Prof. Firefighters v. Dept. of Health and Rehab. Services, 396 So. 2d 1194 (Fla. 1st DCA 1981), held that the Professional Firefighters of Florida, Inc., did not have standing to challenge a rule establishing licensing requirements for paramedics although many of its members performed paramedic functions incident to their employment. The hearing officer was reversed on appeal, the court holding that, unlike Jerry and Alice P., the firefighters association alleged a sufficiently immediate injury, not mere speculation or conjecture.
In Florida Medical Association, Inc., v. Dept. of Prof. Reg., 426 So. 2d 1112 (Fla. 1st DCA 1983), the hearing officer correctly held that the alleged injury to the FMA and the Florida Society of Ophthalmology (the Ophthalmologists) was sufficiently immediate, but incorrectly held that the FMA and the Ophthalmologists failed to meet the second prong of the bipartite standing requirement, namely that "the 'zone of interest' they asserted was within the 'zone of interests' protected by the statute being implemented by the rule." Id. at 1114. Since the proposed rule being challenged would have authorized non-physician optometrists to perform treatment reserved by statute to physicians, the court held that the FMA and the Ophthalmologists had standing.
By the time the hearing officer considered the challenge of a similar rule in the matter appealed in Board of Optometry v. Florida Soc. of Ophthalmology, 538 So. 2d 880 (Fla. 1st DCA 1989), the statute regulating the practice of optometry had been amended to authorize certain qualified optometrists to perform the treatment authorized by the rule under challenge. On motion for rehearing and clarification, the court explained that this time the hearing officer had erred by granting the FMA and the Ophthalmologists standing to challenge the rule. Since the physicians no longer had a statutory
exclusive right to perform the treatment, the court held that they no longer had
standing to challenge a Board of Optometry rule establishing the qualifications of optometrists who want to perform the treatment.
In the matter appealed in Coalition of Mental Health Professions v. Dept. of Prof. Reg., 546 So. 2d 27 (Fla. 1st DCA 1989), the Coalition attempted to intervene in a challenge to proposed rules that would define the practices of clinical social workers, marriage and family therapists and mental health counselors. The hearing officer denied intervention, holding that the Coalition had not demonstrated its standing. Without describing who the Coalition's members are, the court summarily reversed the hearing officer, stating that "this case presents the opposite of the question decided in State, Board of Optometry v. Florida Society of Ophthalmology, [supra], where the rules involved did not purport to regulate the ophthalmology associations asserting party status." Id. at 28.
The Petitioner argues that the above decisions that uphold standing are like this case; the Respondent argues that the above decisions that deny standing are like this case. In fact, this case is both like and unlike all of the cases that resulted in the above decisions. Unlike the Professional Firefighters, the rule challenged in this case does not initiate licensure requirements where there were none before. Unlike the case involving the ophthalmologists, this is neither a case where the rule authorizes a licensed profession to engage in an activity exclusively reserved by statute to another licensed profession, nor is it a case where the rule authorized a licensed profession to engage in an activity previously, but no longer, exclusively reserved by statute to another licensed profession. And unlike the rule in issue in the Coalition of Mental Health Professions case, the rule at issue in this case does not define the practices of various professionals licensed by the same regulatory agency.
If history is any indication, since the above cases do not involve facts that are the same as, or analogous to, the facts of the present case, it is possible that none of them afford a firm basis for reaching a decision on standing in this case. In any event, it is concluded that the Petitioner, an association of dental hygienists, one purpose of which is to maintain the standards of the profession, has standing when the challenged proposed rules will open its profession to persons whom it considers to be unqualified or less qualified.
Proposed Rule Challenges in General
In pertinent part, Section 120.52(8), Fla. Stat. (1989), defines "invalid exercise of delegated legislative authority" to mean:
. . . action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies or contravenes the specific provisions of law
implemented, citation to which is required by s. 120.54(7);
The Petitioner has the burden of proving that the challenged rules are invalid exercises of delegated legislative authority. Agrico Chemical Co. v. Dept. of Environ. Reg., 365 So. 2d 759 (Fla. 1st DCA 1978).
The Challenged Proposed Rules
The proposed rule under challenge in Case No. 89
designation rule) would amend F.A.C. Rule 21G-8.004(2) by adding the language:
The Alabama Dental Hygiene Program sponsored by the Alabama Board of Dental Examiners is determined to be a dental hygiene college or school within the meaning of Section 466.007, F.S., and is hereby approved by the Board.
The proposed rule under challenge in Case No. 90
criteria rule) would renumber what is now (3) of F.A.C. Rule 21G-8.004 as (4) and would insert as (3) the criteria quoted in Finding of Fact 3, above-- criteria that approximate the current Alabama Dental Hygiene Program.
Statutory Rulemaking Authority
Section 466.004(4), Fla. Stat. (1989), provides in pertinent part: "The board [of dentistry] is authorized to adopt all rules necessary to carry out the provisions of this chapter and chapter 455 "
Despite the broad rulemaking authority contained in Section 466.004(4), the Petitioner contends that the proposed rule challenged in Case No. 89-4427RP, the designation rule, is invalid under Section 120.52(8)(b) because its subject matter is not properly the subject of rulemaking but rather must be the subject of an order.
Section 120.52, Fla. Stat. (1989), sets out the following pertinent definitions:
(11) "Order" means a final agency decision which does not have the effect of a rule and which is not excepted from the definition of a rule, whether affirmative, negative, injunctive, or declaratory in form . . . .
* * *
(16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency . . . .
The term also includes the amendment or repeal of a rule. . . .
"By now it is well established that the choice between rulemaking and adjudication is largely left to the agency. See, e.g., Florida Cities Water Co.
v. Florida Public Serv. Comm'n, 384 So. 2d 1280 (Fla. 1980); McDonald v. Dept. of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977)." Rabren v. Dept. of Prof. Reg., Bd. of Pilot Comm'n'rs, 15 F.L.W. D2464, D2467 (Fla. 1st DCA 1990).
The cases make it clear that, between the two, rulemaking is to be preferred. The procedural mechanisms in the APA are designed to encourage agencies to act through rulemaking.
There is no reason why the Board of Dentistry should not designate approved dental hygiene colleges or schools by rule. Although, in this case, it is true that the designation involves only one institution, the designation generally applies to all graduates of the institution. By making the designation by rule, the Board relieves graduates of the ADHP who apply for licensure of the need to establish on a case-by-case basis, in the context of licensure proceedings, that the institution from which they were graduated should be approved by the Board.
Do the Challenged Proposed Rules
Modify, Enlarge, or Contravene the Law Implemented?
Both of the challenged proposed rules are designed to implement Section 466.007(2)(b), Fla. Stat. (1989), which requires an applicant for licensure as a dental hygienist, to be eligible for examination, to be "a graduate of a dental hygiene college or school approved by the board or accredited by the Commission on Accreditation of the American Dental Association or its successor agency."
Generally, the word "or" signifies the disjunctive, and its use in a statute normally would indicate that alternatives were intended. See, e.g., Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986). If the word "or" is given the effect of the disjunctive both times it is used in Section 466.007(2)(b), Board of Dentistry would be given the discretion to approve either schools or colleges, whether or not accredited. Nor would the Board be clearly constrained to approve only unaccredited schools or colleges that are the equivalent of accredited colleges.
The Petitioner argues that the Legislature intended to restrict the Board, in its designation of approved institutions under Section 466.007(2)(b), to schools or colleges (i.e., traditional post-secondary college education), and more particularly, to schools or colleges that either are accredited by the Commission on Accreditation of the American Dental Association, or its successor agency, or are the equivalent of accredited schools and colleges .
The Petitioner bases its argument in part on the legislative history:
Florida's first dental hygiene licensure law, passed in 1927, required applicants to either have graduated from a "reputable training school for dental hygienists" or present a sworn statement from a licensed dentist that the applicant had completed at least six months of training in dental hygiene from the dentist. Section 3560, Chapter XXV, Compiled General Laws of Florida (1927).
In 1931, the law was amended to require applicants to be "a graduate of an accredited school conducting a course for dental hygienists." Section 30, Chapter 14708, Laws of Florida (1931).
In 1941, the law was further amended to require applicants to be graduates "of a school approved by the Board for dental hygienists and conducting a course consisting of not less than one academic year for dental hygienists." Section 466.37, Fla. Stat. (1941).
A 1955 amendment increased the education requirement to two academic years and required graduation from a school approved by the Board. See Section 466.37, Fla. Stat. (1955).
In 1961, the Legislature made use of the phrase "dental hygiene school or college" in connection with the requirements for licensure. Section 466.37, Fla. Stat. (1961).
The current language in Section 466.007(2)(b), specifically the reference to accreditation by the Commission on Accreditation of the American Dental Association or its successor agency, is the result of a 1986 amendment to the statutes. See Section 1, Chapter 86-291, Laws of Florida (1986).
The legislative history could be used as support for the Petitioner's argument but alone may not be enough to establish a legislative intent contrary to the meaning normally given to the words used in the statute. Citing Bd. of Architecture v. Wasserman, 377 So. 2d 653 (Fla. 1979), the Petitioner also argues that, unless Section 466.007(2)(b) were interpreted so as to require either graduation from an accredited school or college or graduation from a school or college that is comparable to an accredited college, the statute would be an unconstitutional delegation of legislative authority to the Board of Dentistry without adequate guidelines.
In Wasserman, the court had before it a statute establishing qualification requirements for licensure as an architect and giving the Board of Architecture authority to approve "schools and colleges of architecture" and to approve alternative equivalent training. It was claimed that the statute was an unconstitutional delegation of legislative authority without adequate guidelines. The Wasserman court construed the statute in a manner so as to preserve its constitutionality, stating:
There are widely recognized standards with regard to the educational requirements of professional schools of architecture. . . . .
[W]hen the legislature established the requirement that an applicant be "a graduate of a school or college of architecture," it did so with reference to a definite conception of what a school or college of architecture is. The phrase "appearing upon the list of approved schools and colleges of architecture as adopted and published by the board in its rules" did not confer on the board the power to approve any school as a school or college of architecture or to recognize any academic degree as meeting the degree requirement.
The requirement of a degree from a school or college of architecture establishes a standard by which to evaluate applicants. The training equivalency provision of the statute is governed by the same standard. That is, the legislature intended that the board evaluate the applicant's training by comparing it to the curriculum required for graduation from a school or college of architecture.
Wasserman, 377 So. 2d at 656-657.
It often is said that the polestar of statutory interpretation is the legislative intent. See e.g., Byrd v. Richardson-Greenshields Securities, Inc.,
552 So. 2d 1099 (Fla. 1989); Lowry v. Parole and Probation Comm'n, 473 So. 2d 1248 (Fla. 1985). Even when the plain meaning of the language which the Legislature chooses to use in a statute might seem to point to another interpretation, the meaning intended by the Legislature must be given effect. Byrd v. Richardson-Greenshields Securities, Inc., supra; Vildabill v. Johnson, 492 So. 2d 1047 (Fla. 1986); Parker v. State, 406 So. 2d 1089 (Fla. 1981); Griffis v. State, 356 So. 2d 297 (Fla. 1978). This is one of those cases. Even though the Legislature chose to use the disjunctive "or" in Section 466.007(2)(b), the Legislature also is presumed to know the legislative history and the Wasserman decision. It is concluded that the Legislature intended to restrict the Board of Dentistry, in approving dental hygiene schools or colleges, to either accredited schools or colleges or unaccredited schools or colleges that are comparable to accredited schools and colleges.
To be comparable to an accredited school or college, an unaccredited school or college need not be the same as but need only be equivalent to an accredited school or college. See Moorehead v. Dept. of Prof. Reg., 550 So. 2d
521 (Fla. 1st DCA 1989). But both the proposed designation rule and the proposed criteria rule would approve programs of dental hygiene instruction that would not be the equivalent of schools or colleges approved by the Commission on Accreditation of the American Dental Association.
The Board's policy choices in proposing the two proposed rules under challenge in this case go beyond the range of possible choices under Section 466.007(2)(b), as construed in light of the legislative history and the Wasserman decision. Contrast Dept. of Prof. Reg., etc., v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984). As such, they would modify, enlarge, or contravene Section 466.007(2)(b) and must be invalidated.
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:
The two proposed rules under challenge in this case are invalid.
DONE AND ORDERED this 25th day of October, 1990, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1990.
ENDNOTE
1/ Dental assistants are not licensed in any state.
APPENDIX TO FINAL ORDER
To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
1. Last sentence, accepted and incorporated. Rest, accepted but subordinate, conclusion of law or unnecessary.
2.-3. Accepted and incorporated.
4. Conclusion of Law.
5.-8. Generally accepted but subordinate and unnecessary. 9.-10. Conclusion of law.
11.-14. Accepted but unnecessary.
15. Conclusion of law.
16.-18. Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
22.-23. Generally accepted but unnecessary.
24. Accepted and incorporated. 25.-26. Cumulative and unnecessary.
27. Accepted and incorporated.
28.-37. Generally accepted but subordinate and unnecessary.
First sentence, conclusion of law. Rest, accepted and incorporated.
Accepted and incorporated.
Accepted but subordinate and unnecessary.
41.-44. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as argument.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but unnecessary.
50.-52. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven.
Accepted and incorporated.
Accepted but subordinate and unnecessary. 56.-57. Accepted and incorporated.
58.-59. Accepted but subordinate and unnecessary.
60. Accepted and incorporated.
61.-67. Irrelevant, subordinate and unnecessary.
Respondent/Intervenor's Proposed Findings of Fact.
1.-11. Accepted and incorporated to the extent not subordinate or unnecessary.
12. Rejected that these are "not directly related to the practice of dental hygiene." Otherwise, accepted and incorporated.
13.-14. Accepted and incorporated.
Rejected as argument and unnecessary.
Accepted and incorporated.
Irrelevant, subordinate and unnecessary.
18.-20. Accepted and incorporated to the extent not subordinate or unnecessary.
21. Second sentence, rejected as contrary to the greater weight of the evidence. (They are essentially the same as some but totally omit others.) The rest is accepted and incorporated.
22.-23. Accepted and incorporated.
24. Rejected as contrary to the greater weight of the evidence that the modules are "highly structured" or that they achieve "a high level of uniformity." Otherwise, accepted and incorporated.
25.-26. Accepted and incorporated.
Accepted but irrelevant in light of the Conclusions of Law and unnecessary.
Generally accepted and incorporated to the extent relevant and necessary.
COPIES FURNISHED:
Paul Watson Lambert, Esquire 1355 Mahan Drive
Tallahassee, Florida 32308
Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301
John H. French, Jr., Esquire Messer, Vickers, Caparello,
French & Madsen Post Office Box 1876
Tallahassee, Florida 32302
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, FL 32399-1300
Liz Cloud, Chief
Bureau of Administrative Code 1802 The Capitol
Tallahassee, FL 32399-0250
NOTICE OF RIGHT TO JUDICIAL REVIEW
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.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL NOT FINAL UNTIL TIME EXPIRES TO REGULATION, BOARD OF FILE MOTION FOR REHEARING AND
DENTISTRY, DISPOSITION THEREOF IF FILED.
Appellant, Cross-Appellee, CASE NO. 90-3401
DOAH CASE NOS. 89-4427RP,
vs. 90-0258RP
FLORIDA DENTAL HYGIENIST ASSOCIATION, INC.,
Appellee, Cross-Appellant.
/ Opinion filed January 14, 1993.
An appeal from an order of the Division of Administrative Hearings.
Robert A. Butterworth, Attorney General; Allen R. Grossman, Assistant Attorney General, Tallahassee, for Appellant.
Paul Watson Lambert, Tallahassee, for Appellee.
PER CURIAM.
The Department of Professional Regulation, Board of Dentistry (Board), appeals a final order of a hearing officer of the Division of Administrative Hearings holding invalid two proposed rules promulgated by the Board. The appellee, Florida Dental Hygienist Association, Inc. (hygienists or hygienist association) cross-appeals, asserting error in the hearing officer's ruling that
the Board may validly approve schools or colleges by rule, rather than by order. We affirm the issue on cross-appeal without discussion. Finding no error in the hearing officer's ruling that the hygienists have standing to challenge the validity of the proposed rules pursuant to section 120.54(4), Administrative Procedure Act, and that the proposed rules are an invalid exercise of delegated legislative authority, we affirm both as to the appeal and cross-appeal.
Under section 466.007(2)(b), Florida Statutes, (1989), a person desiring to be licensed as a dental hygienist may apply to the Department of Professional Regulation to take the licensure examination if, among other things, the person "is a graduate of a dental hygiene college or school approved by the Board or accredited by the Commission on Accreditation of the American Dental Association or its successor agency." Rule 21G-8.004(2), Fla. Admin. Code, in its existing form, provides: "(2) Only those dental hygiene colleges or schools accredited by the Commission on Dental Accreditation of the American Dental Association or its successor agency are deemed approved by the Board for the purposes of section 466.007(2)(b), F.S."
In July 1989, the Board published notice of its intent to amend the rule so that, as amended, the rule would read in part as follows:
(2) Dental hygiene or dental colleges or schools accredited by the Commission on Dental Accreditation of the American Dental Association or its successor agency are deemed approved by the Board for the purpose of section 466.007(2)(b), F.S.
The Alabama Dental Hygiene Program sponsored by the Alabama Board of Dental Examiners is determined to be a dental hygiene college or school within the meaning of 466.007, F.S., and is hereby approved by the Board.
Subsequently, the Board proposed a second rule, an amendment to rule 21G- 8.004(3), Fla. Admin. Code, which would establish criteria for approval of a dental hygiene college or school under section 466.007, Florida Statutes.
The hygienists filed a petition challenging the proposed amendment designating the Alabama Dental Hygiene Program (ADHP) as an approved dental hygiene college or school within the meaning of section 466.007, and subsequently filed a second rule challenge petition attacking the validity of the proposed amendment setting up criteria to be used by the Board in approving a dental hygiene school or college. The hygienists' attack focused on the contention that although the statute authorized the Board to approve dental hygiene colleges or schools, the legislative intent of section 466.007(2)(b) was to allow Board approval only as to dental hygiene schools or colleges meeting the educational standards of institutions accredited by the Commission on Accreditation of the American Dental Association. If otherwise interpreted, the hygienists argued, the statute, under which the rules were promulgated, would be unconstitutional as an unlawful delegation of legislative authority, citing Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla. 1979).
The two petitions were consolidated, and after an evidentiary hearing, the hearing officer entered a final order agreeing, in essence, with petitioner's contentions that the proposed rules would modify, enlarge or contravene section 466.007(2)(b), and thus constituted an invalid exercise of delegated legislative authority. This appeal followed.
The issue of standing on the part of the hygienists was raised below in the Board's motion to dismiss both petitions. For purposes of ruling on the standing issue, the Board agreed the allegations of the hygienists' petitions should be accepted as true, without the necessity for further proof. The hearing officer denied the motions to dismiss, concluding, albeit not without some difficulty, that the hygienist association had standing. The Board contends, as it did below, that the hygienists' petitions and supporting evidence failed to demonstrate the hygienists status as a "substantially affected person," under section 120.54(4)(a), Florida Statutes (1989), as interpreted by the courts. We disagree.
The petitions claimed injury in fact based upon allegations that the proposed amendments would allow graduates of the ADHP or other dental hygiene colleges or schools which do not meet the standards of accreditation of the Commission on Accreditation of the American Dental Association, to sit for examination as licensed dental hygienists, without meeting the minimum educational and training requirements of the Florida Statutes. This, according to the petitions, would immediately dilute the quality of licensed dental hygienists available to practice dental hygiene in the state of Florida. The petitions also allege that the proposed rules would have irremediable effects by allowing less than fully qualified persons to practice dental hygiene in derogation of the legislative purpose and intent of chapter 466, Florida Statutes, to the detriment of the public safety and welfare. It is also alleged that the proposed rule amendments are within the hygienists' "zone of interest" in that it is the purpose of the Florida Dental Hygienist Association to ensure, on behalf of its members, that the quality of dental hygiene practice is maintained in the best public interest, and further, to ensure that persons licensed as dental hygienists meet stated minimal education and training requirements under the applicable law.
The hygienists' brief cites a number of cases in support of its contention that it has standing to maintain the rule challenges. The hearing officer's final order cites and accurately analyzes each of these cases, pointing out the distinguishing features of each, finally concluding that since the cases relied upon by the hygienists do not involve facts that are the same as, or analogous to the facts of the present case, "it is possible that none of them afford a firm basis for reaching a decision on standing in this case." 1/ Nevertheless, the hearing officer concluded that the hygienist association, "an association of dental hygienists, one purpose of which is to maintain the standards of the profession, has standing when the challenged proposed rules will open its profession to persons whom it considers to be unqualified or less qualified."
Although the hygienists' petition alleges injury-in-fact, the petitions do not specifically allege a prospective or threatened economic injury. The evidence establishes that dental hygienists are employed almost exclusively by dentists, and are subject to their control attendant to such employment. The association argues that the licensing of lesser qualified individuals lowers the standing of dental hygiene practice in Florida, thereby producing a lesser- qualified pool of competitors. Accordingly, the hygienist association contends, the employment of dental hygienists with higher qualifications will be adversely affected. The hygienist association points to no evidence in the record establishing to what extent dentists, given the choice, will opt to employ an ADHP-trained dental hygienist in preference to an arguably more highly trained and educated member of the hygienist association. That some dentists will so choose appears likely, however, given the enthusiastic endorsement of the ADHP by the dentists who testified in favor of the rules. It requires no flight of
imagination to reason that if the rule would produce a flood of lesser-trained hygienists, presumably available for employment for less compensation, this would have an economic impact on the existing pool of more highly-trained individuals.
The issue, so far as standing is concerned, therefore may be viewed as whether, considered in the light most favorable to the hygienist association, the petitions' references to the effect of the proposed rules as "diluting the quality of licensed dental hygienists available," and "allowing less than fully qualified persons [to] practice dental hygiene," in derogation of the Florida Statutes and "detrimental the public safety and welfare," coupled with the allegations concerning the association's purpose to ensure that persons licensed as dental hygienists meet the educational and training requirements established by law, are sufficient to satisfy the statutory requirement of stating "facts sufficient to show that the person challenging the proposed rule would be substantially affected by it." Section 120.54(4)(b), Florida Statutes. These allegations suggest, however vaguely, that the hygienists' concern is motivated by its desire to lessen competition for its members in the field. Additionally, when considered in context, they also suggest that by allowing licensure, as dental hygienists, persons who do not meet the educational and training standards established by law, the rule has the effect of depriving the association's members of the value of their investment in the additional education and training they acquired, under existing law, in order to become licensed. The issue of standing in this case, as the hearing officer obviously recognized, is not easily resolved from existing case law.
Thus far, we have no decision recognizing mere anti-competitive interests alone as sufficient to confer upon a trade or professional association standing to challenge a proposed rule. Cf. ASI, Inc. v. Florida Public Service Commission, 334 So.2d 594 (Fla. 1976); Florida Medical Association v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983); and State Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1989). Further, as for the hygienists' alleged concern for the "public safety and welfare," our decision in State Board of Optometry v. Florida Society of Ophthalmology, supra, precludes a finding of standing based solely upon this allegation. In that case, Judge Zehmer, writing for the court, first pointed out that the petitioners in that case, unlike the petitioners in Florida Medical Association v. Department of Professional Regulation, supra, because of statutory changes were no longer in position to assert a statutorily protected economic right that had been impaired by a rule. Judge Zehmer then added:
Consequently, petitioners' continuing general interest in the quality of eye care being provided to the public is not predicated upon a legally recognized right of sufficient immediacy and reality to support their standing to challenge the validity of the adopted rule. 538 So.2d at 881.
Despite the ruling of State Board of Optometry that a general interest regarding the quality of care rendered to -the public is not sufficient to confer standing, we find that the hearing officer's ruling that the hygienists have standing to challenge the validity of the proposed rule in question warrants our approval. In so ruling we concede that the issue is not as clear- cut as it was in Florida Medical Association. In that case we held that a physician and a medical association had standing to challenge, as an invalid
exercise of delegated legislative authority, a rule allowing optometrists to prescribe and use certain drugs in treating patients, which by statute was within the exclusive field of practice of physicians. In so holding, we found sufficient to confer standing allegations that the rule constituted an encroachment upon a valuable, statutorily conferred property right, i.e., the right to practice medicine, which is protected by due process. We also found that by purporting to authorize acts by optometrists that were unlawful under a statute, and contrary to the stated purposes of the statutes aimed at protecting the public by ensuring that only qualified persons be allowed to engage in the health care professions, the "zone of interest" component of the standing requirement was satisfied. Florida Medical Association, 426 So.2d at 117.
Applying an analysis similar to that used by the court in Florida Medical Association, under section 466.007(2)(b), only hygienists who are graduates of a "dental hygiene college or school" approved by the Board or accredited by the Commission on Accreditation of the American Dental Association or its successor agency are currently eligible for licensure as dental hygienists in Florida.
Under the current rule, 21G-8.004(2), Fla. Admin. Code, only those dental colleges or schools accredited by the Commission are approved by the Board. Thus, much like the statutes in Florida Medical Association, the statute and the rule involved here delineate the right of persons to engage in a particular health care occupation, and establish criteria regarding the qualifications of entry into the field for the protection of the public. Based upon the facts alleged by the hygienists, the truth of which the Board conceded, it logically follows that by allowing previously unqualified persons to enter the field, the proposed rule substantially impacts upon the rights of qualified Florida dental hygienists derived from section 466.007. By allowing unqualified persons to enter the field, the proposed rule changes tend to diminish the value of the additional time and capital expended by the hygienists in order to meet the higher educational and training standards required under existing law. Thus, those hygienists who are already qualified, licensed and practicing in Florida have a sufficient interest in maintaining the levels of education and competence required for licensing to afford them standing to challenge an unauthorized encroachment upon their practice. Since the individual members of the hygienist association are "substantially affected person[s]," section 120.54(4), the association has standing as the representative of its members to challenge the validity of the proposed rules. Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).
Contrary to the Board's position, the hygienists' allegations to establish standing amount to more than the expression of a "general interest" in the quality of dental health care provided to the public. This case therefore cannot be said to fall within the ambit of our holding in State Board of Optometry v. Florida Society of Ophthalmology, supra. Because of our view that the professional and economic interests of the hygienists are directly affected, as indicated above, our ruling concerning standing cannot be said to rest solely upon the association's self-serving declaration that one of its purposes is to generally maintain the standards of the profession for the benefit of the public. Further, while we acknowledge that the threatened encroachment upon the practice of the dental hygienists in this case is not as apparent as the encroachments complained of by the physicians in Florida Medical Association, we think the difference is more in the degree, rather than in the nature of the threatened injury. Although it may be argued that the value of a person's vested rights to engage in a health care occupation may be less capable of articulation than rights accruing to a health care professional, this should not justify a corresponding disparity in their right to pursue through litigation their legitimate grievances under the law.
Moreover, it should be noted that unlike Florida Society of Ophthalmology
State Board of Optometry, 532 So.2d 1279, 1284 (Fla. 1st DCA 1988), the present case is a rule challenge proceeding, not an attempt to gain access to a 120.57(1) licensing proceeding. This distinction is significant. Prior decisions in licensing or permitting cases have made it clear that a claim of standing by third parties based solely upon economic interests is not sufficient unless the permitting or licensing statute itself contemplates consideration of such interests, or unless standing is conferred by a rule, statute, or based on constitutional grounds. Florida Medical Association, 426 So.2d at 1117-1118; Florida Society of Ophthalmology, 532 So.2d at 1287. Further, as we reiterated in State Board of Optometry, standing in a licensing proceeding may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding, because there can be a difference between the concept of "substantially affected" under section 120.56(1), and "substantial interests" under section 120.57(1). 538 So.2d at 880. Because challenges to proposed rules, under section 120.54(4), may be brought by a "substantially affected" person as is the case under section 120.56 rule challenges, the distinction drawn in State Board of Optometry is applicable to challenges of proposed rules.
In addition, as we discussed in Florida Medical Association, 426 So.2d at 1114-1115, and Florida Society of Ophthalmology, 532 So.2d at 1287, we note again the significance of a claim of illegality in a rule challenge proceeding, which should be distinguished from a claim of encroachment upon competitive economic interests. Here, as above-noted, the hygienists' standing claim is predicated upon the alleged unconstitutional exercise of delegated legislative authority. In this regard, we feel it is appropriate to consult the work of the late Patricia A. Dore, Professor of Law at Florida State University, who was an eminent scholar in the field of administrative law. In her exhaustive treatise, Access to Florida Administrative Proceedings, 13 Fla. St. U. L. Rev. 965, 1014 (1986), Professor Dore asserted that the "substantially affected person" access or standing standard for rule challenges under section 120.54(4) "was intended to create an opportunity for a citizen initiated check on rule making that exceeded delegated statutory authority." Further, she explained: "It was designed to promote an inexpensive and effective way for persons who would be substantially affected by a proposed rule to prevent that rule from ever going into effect if an independent hearing officer found that the proposed rule went beyond the agency's statutory authority." Id. She believed that such a proceeding could be initiated by "any person who would be affected in an important and significant way if the proposed rule were adopted by the agency." Id. at 1010. Ms. Dore further explained that since the legislature had placed authority over section 124.54(4) proceedings in an executive branch agency (DOAH), once a DOAH hearing officer determines that a petitioner is a person affected in an important and significant way if the proposed rule should become effective, the hearing officer's access decision should stand, even though such person might not satisfy the standing requirements to institute a suit in a court of law. Id. at 1017. She concluded that the legislature did not intend that the access requirements necessary to challenge a proposed rule be synonymous with the standing requirements for bringing an action at law. Thus, in her view, only when a hearing officer denies access by applying a standard more demanding than the statutory provision requires should a reviewing court intervene. Id. at 1017-18.
The significance of these observations by Professor Dore could not be more obvious than in a case such as the one before us. Here, the Florida Dental Association, which fully supported the actions of the Board in adopting the proposed rules, was allowed to intervene and participate fully in the
proceedings below. The hygienists' objection to allowing the Dental Association intervenor status was denied by the hearing officer. Thus, under the hearing officer's rulings, both the Dental Association and the hygienists, the primary protagonists in this controversy, were allowed to be fully heard. In all fairness, to deny the hygienists' standing to challenge unauthorized actions of the Board detrimental to their interests would produce the anomalous result that virtually no one would have such standing. In our view, under the facts presented here, such a result would thwart the purposes of section 120.54(4).
We therefore affirm the hearing officer's standing decision.
Turning to the merits, the issue may be best brought into focus by first examining the hearing officer's analysis of the controlling statute, section 466.007(2)(b). It will be recalled that this section provides that a person may take the examination required for licensure as a dental hygienist if the person is a "graduate of a dental hygiene college or school approved by the Board or accredited by the Commission on Accreditation of the American Dental Association or its successor agency." The hearing officer acknowledged that generally, the word "or" signifies the disjunctive, and its use in a statute normally would indicate that alternatives were intended. See, for example, Sparkman v.
McClure, 498 So.2d 892 (Fla. 1986). However, the hearing officer noted, if the word "or" is given its usual effect, the Board of Dentistry would have the discretion to approve schools or colleges, whether or not accredited. In addition, the Board would not be constrained to approve only unaccredited schools or colleges that are the equivalent of accredited schools or colleges. The hearing officer next turned to the hygienists' argument, based in part upon the legislative history of section 466.007(2)(b), that the legislature intended to restrict the Board, in its designation of approved institutions under section 466.007(2)(b), to schools or colleges providing traditional post-secondary college education, and more particularly, to schools or colleges that are either accredited by the Commission on Accreditation of the American Dental Association, or a successor agency, or are the equivalent of accredited schools and colleges. Reviewing the pertinent legislative history, the hearing officer found:
Florida's first dental hygiene licensure law, passed in 1927, required applicants to either have graduated from a "reputable training school for dental hygienists" or present a sworn statement from a licensed dentist that the applicant had completed at least six months of training in dental hygiene from the dentist. Section 3560, Chapter XXV, Compiled General Laws of Florida (1927).
In 1931, the law was amended to require applicants to be "a graduate of an accredited school conducting a course for dental hygienists." Section 30, Chapter 14708, Laws of Florida (1931).
In 1941, the law was further amended to require applicants to be graduates "of a school approved by the Board for dental hygienists and conducting a course consisting of
not less than one academic year for dental hygienists." Section 466.37, Fla. Stat. (1941).
A 1955 amendment increased the education requirement of two academic years and required graduation from a school approved by the Board. See Section 466.37, Fla. Stat. (1955).
In 1961, the Legislature made use of the phrase "dental hygiene school or college" in connection with the requirements for licensure. Section 466.37, Fla. Stat. (1961).
The current language in Section 466.007(2)(b), specifically the reference to accreditation by the Commission on Accreditation of the American Dental Association or its successor agency, is the result of a 1986 amendment to the statutes.
See Section 1, Chapter 86-291, Laws of Florida (1986).
Regarding this legislative history, the hearing officer observed that it could be used as support for the hygienists' argument, but alone "may not be enough to establish a legislative intent contrary to the meaning normally given to the words used in the statute." The hearing officer found, however, that the hygienists' citation to Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla. 1979), and argument pursuant to the principle of that case, required a different interpretation of the statute.
In Wasserman v. Florida State Board of Architecture, 361 So.2d 792 (Fla. 1st DCA 1978), the district court of appeal found unconstitutional a statute permitting the Board to deny registration on the ground that the applicant does not hold a professional degree from an approved school, because the statute permitted unbridled discretion by the Board and therefore amounted to an unlawful delegation of legislative authority. Reversing, the Florida Supreme Court held that if the constitutionality of a statute is questioned, and it is reasonably susceptible of two interpretations, one of which would be unconstitutional and the other valid, the court must adopt an interpretation which will render the statute valid. 377 So.2d at 656. Accordingly, the court held that in interpreting a statute which required that any applicant for admission to practice architecture establish that he is a graduate of a school or college of architecture, or has had training found by the Board of Architecture to be "fully equivalent," the statute must be interpreted as requiring the Board, when ruling upon application for admission under the equivalency standard, to evaluate the applicant's training by comparing it to the curriculum required for graduation from a school or college of architecture. In so ruling, the court observed that there are "widely recognized standards with regard to the educational requirements of professional schools of architecture." 377 So.2d at 656. Further, the legislature, by conferring upon the Board of Architecture the authority to adopt and publish a list of approved schools and colleges of architecture, "did so with reference to a definite conception of what a school or college of architecture is." Id. at 657. Thus, the court concluded, the authority to adopt and publish a list of approved schools and colleges of architecture did not confer on the Board of Architecture "the power to approve any school as a school or college of architecture or to
recognize any academic degree as meeting the degree requirement." Id. Thus, the court held: "The requirement of a degree from a school or college of architecture establishes a standard by which to evaluate applicants. The training equivalency provision of the statute is governed by the same standard. That is, the legislature intended that the Board evaluate the applicant's training by comparing it to the curriculum required for graduation from a school or college of architecture. Id.
Applying ordinary rules of statutory interpretation, the hearing officer proceeded with a legal analysis upon which he based his final conclusion that the proposed rules were invalid. We quote from the final order under review:
It often is said that the polestar of statutory interpretation is the legislative intent. See e.g., Byrd v. Richardson-Greenshields Securities,
Inc., 552 So.2d 1099 (Fla. 1989); Lowry
v. Parole and Probation Comm'n, 473 So.2d 1248 (Fla. 1985). Even when the
plain meaning of the language which the Legislature chooses to use in a statute might seem to point to another interpretation, the meaning intended by the Legislature must be given effect.
Byrd v. Richardson-Greenshields Securities, Inc., supra; Vildabill v. Johnson, 492 So.2d 1047 (Fla. 1986); Parker v. State, 406 So.2d 1089 (Fla. 1981); Griffis v. State, 356 So.2d 297 (Fla. 1978). This is one of those cases. Even though the Legislature chose to use the disjunctive "or" in Section 466.007(2)(b), the Legislature also is presumed to know the legislative history and the Wasserman decision. It is concluded that the Legislature intended to restrict the Board of Dentistry, in approving dental hygiene schools or colleges, to either accredited schools or colleges or unaccredited schools or colleges that are comparable to accredited schools and colleges.
To be comparable to an accredited school or college, an unaccredited school or college need not be the same as but need only be equivalent to an accredited school or college. See
Moorehead v. Department of Prof. Reg., 550 So.2d 521 (Fla. 1st DCA 1989). But
both the proposed designation rule and the proposed criteria rule would approve programs of dental hygiene instruction that would not be the equivalent of schools or colleges approved by the
Commission on Accreditation of the American Dental Association.
The Board's policy choices in proposing the two proposed rules under challenge in this case go beyond the range of possible choices under Section 466.007(2)(b), as construed in light of the legislative history and the
Wasserman decision. Contrast Department of Prof. Reg., etc., v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984). As such,
they would modify, enlarge, or contravene Section 466.007(2)(b) and must be invalidated.
We find the hearing officer's legal analysis persuasive and determinative under the facts presented. As for the issue of equivalency of the ADHP and accredited schools or colleges, the Board does not seriously attempt to discredit the hearing officer's findings which demonstrate a lack of equivalency. 2/ In fact, the Board concedes in its reply brief that the Board has never contended that the standards contained in the proposed criteria rule (which are comparable to those for the ADHP) are equivalent to those of the accreditation agencies.
With respect to the hearing officer's application of Wasserman, the Board urges that Wasserman does not require that section 466.007(2)(b) be read as requiring the schools or colleges approved by the Board to be equivalent to those accredited by the Dental Accreditation Commission. Rather, the Board urges, Wasserman demands only that the statute be read as containing a presumption that the term "approved by the Board" permits the Board to approve only those unaccredited schools or colleges which sufficiently train dental hygienists. In other words, according to the Board, the statute simply gives the Board the choice of approving schools or colleges in addition to accepting graduates of accredited programs. We find this argument unpersuasive.
If, as the Board suggests, the statute merely requires that the Board approve only those schools or colleges which "sufficiently train dental hygienists," without any guidance as to what standards should be used to measure "sufficiently," then the legislative approval of schools or colleges accredited by the Dental Association Commission would appear to be superfluous. On the other hand, as the analysis by the hearing officer concludes, the requirement concerning accreditation is more logically and reasonably read as a standard selected by the legislature against which the "acceptance" of schools by the Board is to be measured. Furthermore, such a reading is clearly required by Wasserman. That this is so is convincingly shown by the fact that absent the accreditation standard, the Board would be left with virtual unbridled authority to admit hygienists to practice in Florida. We reject such an interpretation, as did the hearing officer, because the failure to fix standards for approval of schools or colleges would render the statute unconstitutional, as held in Husband v. Cassel, 130 So.2d 69 (Fla. 1961); see Pridgen v. Sweat, 125 Fla. 598,
170 So. 653 (1936), and Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1978).
Under the Board's view it would have virtually unlimited discretion subject only to the requirement that it should "ensure that every dentist and dental hygienist practicing in this state meets minimum requirements for safe practice." This language is extracted from the legislative declaration of
purpose in enacting Chapter 466, found in section 466.001. Under this general standard, there would be no requirement that dental hygienists attend any school or college, a possibility clearly ruled out long ago by the legislature, as the hearing officer's charting of the legislative course since 1927 shows.
In substance, the hearing officer found that what the Board advocates, in final analysis, both in its construction of the statute and the proposed rules, is a return to a preceptor or apprenticeship-type of dental hygiene training, a result the legislature has steadily moved away from since 1927 in this state.
Without further unduly lengthening this opinion with a discussion of the hearing officer's factual findings, suffice it to say that the hearing officer found vast differences between the ADHP and similar programs, and the Florida and other accredited school and college programs for dental hygienists. 3/ We have determined, after careful review, that the hearing officer's findings that the proposed rules do not meet the requirements of section 466.007(2)(b), Florida Statutes (1989), are supported by competent substantial evidence and therefore must be affirmed. 4/
AFFIRMED.
ERVIN, SMITH AND ALLEN, JJ., CONCUR.
ENDNOTES
1/ See, Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); Professional Firefighters v. Department of Health and Rehab. Services, 396 So.2d 1194 (Fla. 1st DCA 1981); Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983); State Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1989); Coalition of Mental Health Professions v.
Department of Professional Regulation, 546 So.2d 27 (Fla. 1st DCA 1989). In his final order the hearing officer, after discussion of these cases, noted that each side argued that the cases favoring its position were "like this case."
The hearing officer gave this cogent rejoinder: "In fact, this case is both like and unlike all of the cases that resulted in the above decisions. Unlike the Professional Firefighters, the rule challenged in this case does not initiate licensure requirements where there were none before. Unlike the case involving the ophthalmologists, this is neither a case where the rule authorizes a licensed profession to engage in an activity exclusively reserved by statute to another licensed profession, nor is it a case where the rule authorized a licensed profession to engage in an activity previously, but no longer, exclusively reserved by statute to another licensed profession. And unlike the rule in issue in the Coalition of Mental Health Professions, the rule at issue in this case does not define the practices of various professionals licensed by the same regulatory agency."
2/ A partial summary of the facts found by the hearing officer in comparing accredited programs with the ADHP is instructive. Dental hygiene in Florida is taught in the community college system, of which there are nine, all accredited by the Commission on Dental Accreditation of the American Dental Association.
Course work requirements for a dental hygiene degree range from 70 to 95 academic credits hours over a two-year-plus time period. Florida dental hygiene programs require in excess of 70 credit hours, a minimum of 60 credits being required for an Associate of Arts degree. The program includes general
education and science courses as well as dental hygiene courses. The curriculum is comprehensive and includes general education, basic sciences, and didactic and clinical dental hygiene education. Education by Florida community colleges is offered at a minimum competency level reflected in standardized "curriculum frameworks" for each program. These frameworks, adopted by the State Board of Education, establish a standardized guide for development of education programs, and are required by state and federal law. The curriculum framework for dental hygiene education is required to meet the standards for accreditation by the Commission on Dental Accreditation of the American Dental Association.
Accreditation by the Commission requires that both didactic and clinical dental hygiene education be offered at the college level in post-secondary schools or colleges accredited by a regional accrediting agency, that an associate or baccalaureate degree be awarded, and that the program prepares students to continue their education. A basic science background in dental hygiene education helps students understand the transmission of diseases, such as AIDS, and a liberal arts education helps prepare the dental hygienist for effective patient communication relating to dental hygiene. Florida's community college programs must also be accredited by the Southern Association of Colleges and Schools. The dental hygiene curriculum requirements in Florida's community colleges go beyond the Commission on Dental Education minimum requirements with respect to the core dental hygiene instruction. In post-secondary academia, the term "college" means an established institution of higher learning; the term "school" means an organized body that leads to a post-secondary degree. A school is usually organized within a college. A "program" is a term of art in academia that means an identified, organized course of study leading to a degree. Programs are offered within academic schools or colleges. In dental hygiene education, the terms "dental hygiene college," "dental hygiene school," and "dental hygiene program," are synonymous. The Commission on Dental Accreditation of the American Dental Association accredits those organized courses of study that lead to a degree in dental hygiene, regardless of whether the course of study is labeled a dental hygiene college, school, or program.
By contrast, the Alabama Dental Hygiene Program (ADHP) is not accredited by, nor does it have status toward accreditation by the Commission on Dental Accreditation of the American Dental Association. Under the ADHP, any licensed dentist is approved by the state licensing board to provide on-the-job training in dental hygiene to dental assistants with at least one year experience as a dental assistant. Dental assistants are not licensed in any state. The sponsoring dentist is responsible for the clinical adequacy and thoroughness of the training. The Alabama Board of Dental Examiners administers and has final authority over the program, in concert with the Alabama Dental Association. The ADHP is a one-year course of study that combines formal classroom education with hands-on clinical training. Trainees receive approximately 165 hours of didactic lectures in two separate week-long sessions, and four two-day weekend sessions, concurrent with the one year of preceptor training. Accredited programs generally include a minimum of approximately 1,000 classroom hours.
Although the didactic lectures for the ADHP are provided by the University of Alabama College of Dentistry in Birmingham, Alabama, it is not a program within or sponsored by the university, the university does not give academic credit for it, and it does not lead to a post-secondary degree. The ADHP includes significantly less formal classroom education in all areas of general education and basic sciences, and significantly fewer lectures in the clinical practice of dental hygiene than do accredited programs. Accredited programs require, but the ADHP does not, courses in chemistry, head and neck anatomy, histology, periodontology, nutrition, public health, pharmacology, pathology, dental materials, law and ethics, sociology, psychology and English. A course in disease control, which is of particular importance since the onset of AIDS, and which requires a strong basic science and biology background, also is absent
from the ADHP. Clinical training under the ADHP is done in the office of a sponsoring dentist, using a series of educational modules, which the sponsoring dentist must verify as having been completed. However, the ADHP clinical training is less standardized than that received under accredited programs.
Comparison of the Alabama and Florida clinical examination scores does, however, provide a strong indication of equivalency in terms of clinical abilities of the ADHP graduates and graduates of accredited programs.
3/ Seven experts from a variety of disciplines testified on behalf of the hygienist association. They unanimously agreed that the proposed rules would lower dental hygiene education standards in Florida to a level below that of the standards required in all states but Alabama. See summary of findings, footnote 2, supra.
4/ We have not overlooked the Board's contention that certain findings of fact by the hearing officer are not supported by competent, substantial evidence and cannot be the foundation for legal conclusions. In particular, the Board takes issue with the hearing officer's finding that ADHP graduates are not eligible to sit for the National Board of Dental Hygiene examination, which applicants for licensure in Florida must successfully complete within ten years of the date of their application. Section 466.007(2)(c), Florida Statutes. We find the evidence on this issue so equivocal as to make it difficult to arrive at a conclusion one way or the other as to the correctness of the hearing officer's finding. However, even assuming error in this regard, we find the same harmless.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable J. Lawrence Johnston, Hearing Officer
WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings
FLORIDA DENTAL HYGIENISTS ASSOCIATION, INC.
vs. Case No. 90-3401
BOARD OF DENTISTRY
and Your Case Nos. 89-4472R,
90-0258RP
FLORIDA DENTAL ASSOCIATION, INC.
FLORIDA DENTAL HYGIENIST ASSOCIATION, INC.
vs.
BOARD OF DENTISTRY
The attached opinion was rendered on January 14, 1993.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable James E. Joanos
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 17th day of February, 1993.
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Jan. 15, 1993 | First DCA Opinion filed. |
| Feb. 15, 1991 | NOTE TO DOCKET: Original Motion as Amicus Curiae & Brief of Amicus Curiae FL Dental Assoc., Inc have been returned to John French per HO; replacement copies have been made for our records. -ac |
| Jan. 30, 1991 | Payment for record $132.00 by J.T. filed. |
| Jan. 28, 1991 | Brief of Amicus Curiae Florida Dental Association, Inc.; Motion As Amicus Curiate filed. (From John H. French, Jr.); On February 14, 1991 John French Picked up the pleading for filing in 1st DCA. |
| Jan. 09, 1991 | Index & Statement of Service sent out. |
| Nov. 21, 1990 | Letter to DOAH from DCA filed. DCA Case No. 1-90-03401. |
| Nov. 21, 1990 | Notice of Administrative Cross Appeal filed. |
| Nov. 21, 1990 | Final Order filed. |
| Nov. 21, 1990 | Certificate of Notice of Appeal sent out. |
| Nov. 20, 1990 | Notice of Appeal filed. |
| Oct. 25, 1990 | CASE CLOSED. Final Order sent out. Hearing held 7/9/90 & 7/11/90. |
| Oct. 02, 1990 | Proposed Findings of Fact, Conclusions of Law and Final Order of Respondent Board of Dentistry and Intervenor Florida Dental Association filed. (From Allen R. Grossman & John H. Frenchm Jr.) |
| Oct. 02, 1990 | Petitioner's Proposed Order filed. (From Paul Watson Lambert) |
| Sep. 18, 1990 | Order Denying Rebuttal Deposition sent out. |
| Sep. 17, 1990 | Petitioner's Motion to Take Rebuttal Deposition & cover ltr filed. (From Paul Watson Lambert) |
| Aug. 21, 1990 | Proposed Orders Status Report filed. (From Paul Watson Lambert) |
| Aug. 06, 1990 | Transcript (2 Vols) filed. |
| Jul. 09, 1990 | CASE STATUS: Hearing Held. |
| Jul. 09, 1990 | Prehearing Stipulation filed. (From Paul Watson Lambert, Allen R. Grossman & John H. French, Jr.) |
| Jun. 28, 1990 | Letter to JLJ from Paul Watson Lambert (re: Preparation for July hearing) filed. |
| Jun. 26, 1990 | (Petitioner) Notice of Taking Deposition filed. (From Paul Watson Lambert) |
| Jun. 26, 1990 | (petitioner) Notice of Taking Deposition filed. |
| Apr. 09, 1990 | Prehearing Order sent out. |
| Apr. 09, 1990 | Notice of Hearing sent out. (hearing set for 7-9-90; 9:00; Talla) |
| Apr. 04, 1990 | Letter to JLJ from A. R. Grossman (re: Time, date & place of hearing)filed. |
| Mar. 14, 1990 | (respondent) Waiver of 30 Day Hearing Requirement filed. |
| Feb. 27, 1990 | Order Denying Motions to Dismiss sent out. |
| Feb. 20, 1990 | Petitioner's Response to REspondent's Motion to Dismiss and Petitioner's Motion to Dismiss Intervenor Florida Dental Association, Inc., in Case No. 89-4427 filed. |
| Feb. 02, 1990 | Order of Consolidation sent out. Consolidated case are: 89-4427 & 90-258 |
| Feb. 02, 1990 | Order Continuing Final Hearing sent out. |
| Feb. 01, 1990 | (Respondent) Motion to Dismiss filed. |
| Jan. 31, 1990 | (Petitioner) Waiver of 30 Hearing Requirement filed. |
| Jan. 16, 1990 | Motion for Consolidation filed. |
| Jan. 16, 1990 | Motion for Continuance Hearing Set for January 24, 1990 & attachment filed. |
| Nov. 22, 1989 | Notice of Hearing sent out. (hearing set for 01/24/90;9:00AM;TAllahassee) |
| Nov. 20, 1989 | Joint Notice of Preferred Dates for Formal Hearing filed. |
| Nov. 01, 1989 | Order Granting Leave to Intervene sent out. (Fl. Dental Assn., Inc.) |
| Oct. 10, 1989 | Jiont Status Report Filed on Behalf of Petitioner & Respondent filed. |
| Oct. 06, 1989 | Motion to Intervene filed. |
| Sep. 25, 1989 | Order for Status Report sent out. (Parties shall report in writing status of case) |
| Aug. 18, 1989 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| Aug. 18, 1989 | Order of Assignment sent out. |
| Aug. 11, 1989 | Petition to Challenge Proposed Rule Amendment; Joint Stipulation to Hold Hearing in Abeyance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 14, 1993 | Opinion | |
| Oct. 25, 1990 | DOAH Final Order | Dental board rule allowing approval of unaccredited schools or colleges, or equivalent (comparable), for hygienists, invalid under statute as construed. |
