STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MEDIVISION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-2252RP
) STATE OF FLORIDA, HEALTH CARE ) COST CONTAINMENT BOARD, )
)
Respondent, )
and )
) FLORIDA HOSPITAL ASSOCIATION, ) INC., )
)
Intervenor. )
) TAMPA SURGI-CENTER, d/b/a )
AMBULATORY SURGERY CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2253RP
) STATE OF FLORIDA, HEALTH CARE ) COST CONTAINMENT BOARD, )
)
Respondent, )
and )
) CATARACT SURGERY CENTER, CORTEZ ) FOOT SURGERY CENTER, AMBULATORY ) SURGERY CENTER OF BRADENTON, )
TAMPA OUTPATIENT SURGICAL ) FACILITY, NAPLES DAY SURGERY, ) AMBULATORY SURGERY CENTER, )
SPECIALTY SURGICAL CENTER, ) TALLAHASSEE SINGLE DAY SURGERY ) and FLORIDA HOSPITAL ASSOCIATION, ) INC., )
)
Intervenors. )
)
FINAL ORDER
Pursuant to written notice a formal hearing was held in these cases before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 14, 1990, and May 18, 1990, in Tallahassee, Florida.
APPEARANCES
For Petitioners and Florida Hospital Association: Gary Walker, Esquire
Pennington, Wilkinson, Dunlap, Bateman & Camp 3375-A Capital Circle, North East Tallahassee, Florida 32317
For Respondent, Health Care Cost Containment Board: Julia P. Forrester, Senior Attorney Health Care Cost Containment Board
301 The Atrium
325 John Knox Road Tallahassee, Florida 32302
For Intervenors, Cataract Surgery Center, et. al.: Louise T. Jeroslow, Esquire
J. A. Ziskind, Esquire
Matzner, Ziskind, Kosnitzky & Jaffee, P. A.
100 South East Second Street, 28th Floor Miami, Florida 33131
STATEMENT OF THE ISSUES
Whether Proposed Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N- 6.006, constitute an invalid exercise of delegated legislative authority?
PRELIMINARY STATEMENT
On April 13, 1990, the Petitioners, Medivision, Inc., and Tampa Surgi- Center, d/b/a, Ambulatory Surgery Center, each filed a Petition to Determine the Invalidity of Proposed Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005, and
10N-6.006. Medivision, Inc.'s Petition was assigned case number 90-2252RP. Tampa Surgi-Center's Petition was assigned case number 90-2253RP. Both cases were initially assigned to Donald Alexander. Hearing Officer Alexander consolidated the cases, sua sponte. The cases were transferred to the undersigned when Hearing Officer Alexander was unavailable on the dates of the formal hearing of these cases.
On April 30, 1990, a Petition to Intervene in Proposed Rule Challenge 10N- 6.002, 10N-6.003, 10N-6.004, 10N-6.005, and 10N-6.006 was filed on behalf of Eye Surgery Facility, Cataract Surgery Center (Manatee Eye Clinic Ophthalmic Outpatient Surgery Center, Inc., d/b/a Cataract Surgery Center), Cortez Foot Surgery Center (Cortez Foot Surgery Center, P.A., d/b/a Cortez Foot Surgery Center, P.A.), Ambulatory Surgery Center of Bradenton (Howard A. Seider, Jr.,
& John R. Leidensohn, M.D. d/b/a, Ambulatory Surgery Center of Bradenton), The Eye Associates, Tampa Outpatient Surgical Facility (Tampa Outpatient Surgery Joint Venture, d/b/a Tampa Outpatient Surgical Facility), FW Associates, Cordova Ambulatory Surgical Center, Naples Day Surgery, Ambulatory Surgery Center (Tampa Surgi-Center, Inc., d/b/a Ambulatory Surgery Center), Specialty Surgical Center (James R. Copeland, M.D., d/b/a Specialty Surgical Center) and Tallahassee Single Day Surgery (T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery). The Petition was filed only in case number 90-2253RP. The Petition was granted.
On May 10, 1990, the Respondent, the Health Care Cost Containment Board, filed a Motion to Reconsider Order Granting Leave to Intervene. On May 11, 1990, Intervenors, Eye Surgery Facility, et. al., filed a Motion and Opposition to Respondent's Motion of Reconsideration to the Order Granting Leave to Intervene and Motion Permitting Withstanding [sic] Without Live Testimony.
Finally, on May 14, 1990, the Health Care Cost Containment Board filed Response to AMC Intervenor's Motion in Opposition to Respondent's Motion of Reconsideration to the Order Granting Leave to Intervene and Motion Permitting Withstanding [sic] Without Live Testimony. During the formal hearing the Health Care Cost Containment Board withdrew its Motion to Reconsider Order Granting Leave to Intervene. The parties therefore agreed that the other Motions were moot.
Subsequent to the conclusion of the formal hearing of these cases a Motion to Dismiss was filed by two of the Intervenors, Eye Surgery Facility and FW Associates. The Motion is hereby granted.
On May 7, 1990, the Florida Hospital Association, Inc., filed a Petition to Intervene and Challenge to Proposed Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N- 6.005, and 10N-6.006 in both cases. The Petition was granted during the formal hearing of these cases.
Official recognition of Chapter 88-394, Laws of Florida, was taken.
At the formal hearing the parties agreed that any evidence presented by the Intervenors or the Petitioners would be considered evidence of both the Intervenors and the Petitioners. The Intervenors, Cataract Surgery Center, et. al., presented the testimony of Susan Kizirian, Linda Copeland, Judith Meyer and William J. Harger. The deposition testimony of Antonio Arias was also filed.
Cataract Surgery Center, et. al., presented 11 exhibits. All were accepted into evidence except Intervenors' 3, which was not offered into evidence.
The Petitioners presented the testimony of Allen Pearman. The Petitioners offered no exhibits.
The Health Care Cost Containment Board presented the testimony of Allen Pearman and J. Thomas Solano. The Health Care Cost Containment Board also offered 19 exhibits. All were accepted into evidence.
The parties agreed to allow the filing of affidavits as proof concerning whether the Petitioner and Intervenors have standing to participate in this proceeding. The Petitioners filed affidavits and they have been accepted into evidence. The affidavits of Intervenors, Cataract Surgery Center, et. al., were filed one day after their due date. The Health Care Cost Containment Board has not alleged that the late filing of the affidavits was prejudicial. Therefore, the affidavits of Cataract Surgery Center, et. al., have also been accepted into evidence.
The parties have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
Standing.
The Petitioners, Medivision, Inc., and Tampa Surgi-Center, d/b/a Ambulatory Surgery Center, have standing to challenge the proposed rules at issue in these cases. See the affidavits of Larry Cyment and Donna McMillan.
Intervenor, Florida Hospital Association, Inc., has standing to participate in these cases. See the affidavit of Pat Haines.
The following Intervenors have established their standing to participate as intervenors in these cases through testimony or affidavit: Cataract Surgery Center, Cortez Foot Surgery Center, Ambulatory Surgery Center of Bradenton, Tampa Outpatient Surgical Facility, Naples Day Surgery, Ambulatory Surgical Center, Specialty Surgical Center and Tallahassee Single Day Surgery.
Eye Surgery Center, The Eye Associates, FW Associates and Cordova Ambulatory Surgical Center have failed to prove their standing to participate in these cases.
The Proposed Rules; Purpose and Adoption.
The Health Care Cost Containment Board (hereinafter referred to as the "Board"), published Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N-
6.006 (hereinafter referred to as the "Proposed Rules"), in Volume 16, Number 12, of the Florida Administrative Weekly (March 23, 1990).
The purpose of the Proposed Rules is to collect data concerning the provision of ambulatory surgery services in the State of Florida. Data collected by the Board will allow a comparison of patient charges and will create an additional bases for the analysis of trends in the health care field. In particular, data collection will promote the analysis of shifts in the provision of health care from inpatient to outpatient settings.
Data concerning patient identity, geographic location, diagnosis, procedures performed and charges for services is required to be collected and submitted to the Board pursuant to the Proposed Rules.
In June of 1989, the staff of the Board presented a study to the Board concerning the growth of ambulatory health care services. Staff recommended that the Board direct that steps be taken to explore the possibility of collecting ambulatory surgery data. The Board accepted the recommendation and appointed a Technical Advisory Panel.
The Technical Advisory Panel appointed by the Board consisted of nine representatives of various interested groups. Two members were from freestanding ambulatory surgery centers and two members were from hospitals providing ambulatory surgery services.
At meetings of the Technical Advisory Panel in July, August, September and October, 1989, the collection of ambulatory surgery services data was considered. The Technical Advisory Panel discussed collection costs, the type of data to be collected, implementation dates, legislative authority, methods of submitting data and the scope of data collection.
The Board was made aware of the Technical Advisory Panel's efforts through minutes of the Panel's meetings and other materials provided to the Board.
The collection of ambulatory surgery services data was considered by the Board at its October, November and December, 1989, meetings.
The Proposed Rules were approved by the Board at its December, 1989, meeting.
There is no statutory authority which specifically provides that data may be collected by the Board from "freestanding ambulatory surgical centers."
The Board cited Section 407.03, Florida Statutes (1989), as the specific authority for the Proposed Rules. The Board cited Sections 407.003,
407.03 and 407.08, Florida Statutes (1989), as the laws implemented by the Proposed Rules.
Scope of the Proposed Rules.
Ambulatory surgery services are provided in a variety of settings: hospitals (e.g., acute care, psychiatric and rehabilitation), licensed freestanding ambulatory surgery centers, physician offices and other unlicensed health care facilities.
The Proposed Rules provide that all licensed hospitals included in Groups 1 through 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual which provide outpatient surgery services and all licensed ambulatory surgery centers in Florida are required to collect and submit 45 data elements to the Board.
Psychiatric hospitals and rehabilitation hospitals are not subject to the Proposed Rules. Physicians' offices and other unlicensed health care providers are also not subject to the Proposed Rules.
The Proposed Rules are limited to licensed providers of ambulatory surgery services so that the Board's staff can insure that all members of the groups selected data actually collect and report data. The Board cannot insure that all unlicensed providers of ambulatory surgery services, such as physicians' offices, comply with the Proposed Rules. Therefore, if data was required to be collected and submitted by unlicensed providers, the data would be less reliable.
The weight of the evidence failed to prove that the requirement of the Proposed Rules that only hospitals included in Groups 1 and 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual and licensed freestanding ambulatory surgery centers collect and submit data constitutes an invalid exercise of delegated legislative authority.
Specific Data vs. Aggregate Data.
The Proposed Rules require the collection and reporting of 45 specific data elements.
Aggregate data concerning ambulatory surgery services could be obtained from insurance companies and used by the Board as an alternative to the more specific data required to be collected pursuant to the Proposed Rules. Aggregate data is a compilation of specific data.
Aggregate data can be used to comply with the Board's statutorily required functions. If aggregate data is used, however, it is likely that reporting will be incomplete. Not all information is reported to insurance companies concerning outpatient activity. Therefore, aggregate data obtained from insurance companies would not cover 100% of ambulatory surgery services provided by reporting entities, resulting in the potential for presenting an incomplete or inaccurate picture of ambulatory surgery services.
The recommendations and conclusions which can be reached from aggregate data are limited.
Specific data allows more flexibility for research purposes. Specific data will assure greater accuracy and comparability of data. Recommendations and conclusions reached from specific data should be more accurate.
In order to insure comparability of data, specific data concerning patients, geographic location, diagnoses, procedures and charges must be collected.
The Board collected aggregate data concerning ambulatory surgery services through a special study. The Board collected the data from hospitals and, on a voluntary basis, from licensed ambulatory surgery centers. "Typical" charges for specified ambulatory surgery procedures was collected. This collection effort was flawed by the lack of specific data. The accuracy of the reports based upon the aggregate data was criticized publicly. The reports were even criticized by one of the witnesses called to testify by Intervenors, Cataract Surgery Center, et. al.
The weight of the evidence failed to prove that the requirement of the Proposed Rules that specific data be collected and submitted instead of aggregate data constitutes an invalid exercise of delegated authority.
Confidential Patient Data.
Some of the data elements to be reported pursuant to the Proposed Rules constitute confidential patient information. Disclosure of confidential patient information is prohibited by Florida law.
The Proposed Rules do not require or authorize disclosure of confidential patient information.
The manner in which the data collected will be distributed has not yet been decided upon by the Board.
The evidence failed to prove that the Board will not comply with prohibitions against disclosure of confidential patient information.
The weight of the evidence failed to prove that the requirement of the Proposed Rules that confidential patient information be reported to the Board constitutes an invalid exercise of delegated authority.
Computer Use.
The Proposed Rules require that data be submitted by computer tape or computer diskette. Therefore, data will have to be input into a computer system.
The Proposed Rules specify the format data must be in when submitted. Most of the language of the Proposed Rules is computer terminology. The terminology of the Proposed Rules will require some knowledge of computers to carry out the requirements of the Proposed Rules. The language of the Proposed Rules is intentionally designed to convey technical information. The general purpose and requirements of the Proposed Rules does not take any special knowledge to understand.
Requiring the submission of data by electronic means is designed to assure the accuracy and confidentiality of the data.
The requirement of the Proposed Rules that data be reported in computer form and the use of computer terminology does not constitute an invalid exercise of delegated legislative authority.
Errors in the Proposed Rules.
Proposed Rule 10N-6.002(2) defines "Ambulatory Surgery Services" as procedures "provided in a hospital in its dedicated ASC ..." [Emphasis added]. Instead of "ASC" the Board intended to use the terms "operating room."
Proposed Rule 10N-6.005 contains a list of the data elements to be collected and reported to the Board. This Proposed Rule contains the following errors or unclear language:
Item 20 is "Facility Fee - Pri. Proc." "Pri. Proc." is an abbreviation for primary procedure.
Items 21-24, similar to Item 20, contains the abbreviation "Sec. Proc." instead of secondary procedure.
Items 25-27 contain a reference to "Page 3". As published in the Florida Administrative Weekly, there is no page 3.
Item 35, which deals with expected methods of payment, refers to "Comm. Ins. (incl. BCBS)." This reference is an abbreviation for commercial insurance (Blue Cross Blue Shield).
Item 44, patient birth date, uses the abbreviation "MMYYYY." This abbreviation should be "MMDDYY."
Proposed Rule 10N-6.006 refers to "Primary Diagnosis Code" and "Secondary Diagnosis Code." The Rule should refer to Primary and Secondary "Procedure" Code.
The mistakes identified in findings of fact 38-40 are not significant enough to characterize the rule as vague. Nor are these mistakes sufficient enough to otherwise conclude that the Proposed Rules constitute an invalid exercise of delegated legislative authority.
Economic Impact.
The Economic Impact Statement (hereinafter referred to as the "EIS"), issued with the Proposed Rules provided the following concerning the economic impact of the Proposed Rules on the Board:
ESTIMATE OF THE COST OF IMPLEMENTATION:
The agency will be affected by the costs of rule promulgation and by the demands placed upon staff time to assure compliance with the rules and to analyze the data collected. Costs for these activities are estimated to be approximately $85,000 per year.
The weight of the evidence failed to prove that this portion of the Board's EIS is unreasonable.
The EIS provided the following concerning the economic impact of the Proposed Rules on persons affected by the Proposed Rules:
ESTIMATE OF THE COST OF IMPLEMENTATION:
Implementation by affected
facilities will cost approximately $2.9 to $3.1 million. These funds will be used to develop the programs necessary to collect and submit the data required. On-going compliance will have a much less significant impact.
. . . .
ESTIMATE OF COST TO ALL PERSONS DIRECTLY
AFFECTED BY THE RULE: The initial cost to Florida hospitals and freestanding ambulatory surgery centers (ASC) would be from approximately $2.9 to $3.1 million to develop the reporting system necessary to generate the necessary data elements. On-going annual cost to the
hospitals and free standing ASCs would be substantially less after the first
year's start-up procedures are adopted.
. . . .
The EIS is insufficient because it does not adequately discuss the costs (implementation and ongoing costs) to affected persons or the impact of the Proposed Rules on small business.
The weight of the evidence proved that the Proposed Rules will have an economic impact on affected persons.
The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the implementation cost affected persons can be expected to incur as a result of the Proposed Rules.
As indicated in the EIS, the Board's determination of the estimate of the economic impact on affected persons was based upon surveys the Board distributed to licensed ambulatory surgery centers, an estimate of costs that hospitals incurred in implementing the Board's detailed patient data collection rule, the Board staff's experience with computer costs (including the collection and entry of data) and consultation with a computer expert familiar with the Proposed Rules.
The surveys relied upon by the Board were distributed to all licensed freestanding ambulatory surgery centers. A total of 91 surveys were distributed. The Board requested that the surveys be returned within one week.
Forty-one responses to the surveys were received by the Board from licensed freestanding ambulatory surgery centers. The responses constitute hearsay. Findings of fact concerning whether the information contained in the responses is correct, therefore, have not been made. The responses to the surveys have, however, been relied upon to make findings of fact concerning what information the Board based its EIS on.
The Board received the following pertinent responses to the surveys from licensed freestanding ambulatory surgery centers: (1) 26 of the responders use computers, 12 have no computer capacity and 3 have some computer capacity;
17 or 18 different software programs are in use; and, (3) the costs to implement the proposed collection of data ranged from $0 to $50,000.00. Twenty- six responders indicated that they did not know how long it would take for them to implement the proposed collection of data.
The Board determined that the average implementation cost for licensed freestanding ambulatory surgery centers reported in the responses to its survey was $18,975.00 and that the average implementation time was 13 weeks.
The Board rounded up the average cost reported to it in the surveys and estimated that the cost of implementing the Proposed Rules at licensed freestanding ambulatory surgery centers would be $20,000.00. Based upon the existence of 85 licensed facilities, the Board estimated the total implementation cost for licensed freestanding ambulatory surgery centers to be
$1,700,000.00 ($20,000.00 x 85).
The Board estimated that the maximum cost of implementing the Proposed Rules at affected hospitals would be $2.00 per patient record. This estimate was based upon the Board's estimate of the cost of hospital compliance with the Board's detailed patient discharge data rule. Based upon an estimate of 600,000 patient records a year which will have to processed as a result of the Proposed Rules, the Board estimated the total cost of implementation in affected hospitals to be $1,200,000.00.
The Board concluded that the total minimum cost of implementing the Proposed Rules will be $2,900,000.00 ($1,700,000.00 cost for freestanding ambulatory surgery centers plus $1,200,000.00 cost for affected hospitals).
The Board discussed the cost of implementing the Proposed Rules with
J. Thomas Solano, an expert in computers. Mr. Solano estimated that the cost of modifying an existing computer system (small to mid-range computer) to comply with the Proposed Rules would be $4,000.00 to $10,000.00. The Board used the highest estimate, $10,000.00, and multiplied this cost by the number of affected
persons (85 freestanding ambulatory surgery centers and 220 hospitals x
$10,000.00). This resulted in a rounded-up estimated implementation cost of
$3,100,000.00.
The Board concluded that the total maximum cost of implementing the Proposed Rules will be $3,100,000.00.
Some of the data to be collected and reported pursuant to the Proposed Rules is already being collected by affected persons. Therefore, the primary cost of complying with the Proposed Rules will be associated with modifying existing computer software and/or hardware.
The cost of modifying an existing computer system can fluctuate widely. As a general rule, computer users with existing software must rely upon their existing software provider to make modifications. The cost of modifying software can, therefore, be much higher than Mr. Solano estimated.
As an alternative to modifying existing systems, affected persons can acquire a freestanding personal computer and software which can be used to comply with the Proposed Rules. The cost of such an acquisition should be approximately $2,500.00 to $5,600.00.
Intervenor, T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it will have to spend approximately $14,000.00 to
$20,000.00 to implement the Proposed Rules. This estimate is based upon a letter purportedly from the Intervenor's computer company. The information contained in the letter is hearsay. The estimated implementation costs are, therefore, not supported by admissible evidence. The estimate, even if supported by competent substantial evidence, is within the Board's estimated implementation costs and, therefore, fail to prove that the Board's EIS is unreasonable or that the Board failed to fully consider the economic factors or impact.
Intervenor, Cataract Surgery Center, estimated implementation costs of
$1,900.00. This amount is limited to additional maintenance fees, supplies and personnel costs. Cataract Surgery Center believes there will no charge from its computer vendor to modify its software. Cataract's estimated costs are reasonable and within the Board's estimates.
Ambulatory Surgical Center of Lake County (hereinafter referred to as "Lake"), does not own a computer. It uses the computer system of its physician owners.
Lake considered more than one method of complying with the Proposed Rules. It considered buying a personal computer and estimated it would cost
$5,000.00. This cost is consistent with the estimates of the Board.
Lake also considered purchasing an integrated hardware and software package. It estimated that such a system would cost $40,000.00 to $50,000.00. The estimate is based upon hearsay. Even if the evidence concerning the cost of an integrated system is accepted as correct, the evidence fails to prove that such costs are necessary to comply with the Proposed Rules. The estimate for this system is based upon Lake's decision that it would perform other functions with the computer system, including storing management information and performing billing functions. These functions are not required in order to comply with the Proposed Rules. Lake currently treats approximately only 300 patients annually.
The weight of the evidence failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the implementation cost which will be incurred by affected persons. The weight of the evidence also failed to prove that the inadequate treatment of implementation costs in the EIS was fully considered by the Board. Therefore, the treatment of implementation costs in the EIS constitutes harmless error.
Although the primary costs to affected persons caused by the Proposed Rules will be associated with implementation of the Proposed Rules, there will also be certain costs associated with ongoing compliance with the Proposed Rules.
There will be ongoing costs for the collection of data, entry of the data into a computer and reporting data to the Board.
Ongoing costs caused by the Proposed Rules will be greater if an affected person with an existing computer system acquires a freestanding computer system instead of using the existing system.
The Board's statement in the EIS concerning ongoing costs was not based upon information from affected persons. The statement concerning ongoing costs does not indicate what the ongoing costs of compliance with the Proposed Rules will be. It only indicates that it will be less than the initial implementation costs associated with the Proposed Rules. Although the weight of the evidence did not prove the estimated total amount of ongoing costs to affected persons from the Proposed Rules, the weight of the evidence failed to prove that ongoing costs will be greater than the estimated total amount of implementation costs.
T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it would incur ongoing costs of approximately $6,000.00. This estimate is reasonable.
Cataract Surgery Center estimated that it would incur ongoing costs of
$41,600.00, or $20.00 per case, to comply with the Proposed Rules. Cataract Surgery Center's estimated costs include the following costs: reel purchase; handling; reel preparation; collection of billing data; process of sending information to the Board; clarification of errors; additional record production; and response to public inquiries.
Cataract Surgery Center's estimated costs are not reasonable. The estimated time to comply with the Proposed Rules is excessive and some of the tasks, i.e., collection of billing data, are not required by the Proposed Rules.
Cataract Surgery Center's conclusion that it may have an increase in maintenance fees is reasonable.
The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the ongoing costs affected persons can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of ongoing costs in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the ongoing cost which will be incurred by affected persons.
The EIS contains a statement that the Proposed Rules should have no economic impact on small business. In reaching this conclusion the Board failed to take into account the legal definition of "small business" contained in Florida Statutes.
The Board did, however, actually consider the impact the Proposed Rules would likely have on small ambulatory surgery centers subject to the Proposed Rules.
The Board attempted to reduce the economic impact on small ambulatory surgery centers by allowing affected persons to file data on computer tape or on diskette. By allowing the use of diskettes for reporting data, the Board made it possible for affected persons to use personal computers to comply with the Proposed Rules. Delayed submission of some data elements was also allowed in order to reduce the impact on small facilities.
It is unlikely that the Board would have made further modifications of the Proposed Rules had the legal definition of "small business" been considered. The weight of the evidence failed to prove what, if any, reasonable modifications should have been taken by the Board to accommodate any economic impact on small business.
The weight of the evidence failed to prove whether any of the entities that participated in the proceeding were small businesses. Those entities, although meeting the definition of small business with regard to the number of employees they have and their net worth, failed to prove whether they are "independently owned and operated." See Section 288.703(1), Florida Statutes (1989). The weight of the evidence failed to prove if any person affected by the Proposed Rules is a small business.
The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of small business which can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of the impact on small business in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated legislative authority because of the impact on small business.
The Petitioners and Intervenors presented evidence concerning a number of actions which the Board did not take during its consideration of the economic impact and factors of the Proposed Rules and its preparation of the EIS. This evidence proved only that there were other steps which the Board could have taken during its preparation of the EIS. The Petitioners and Intervenors failed to prove, however, that the steps which the Board did take were not sufficient. The Petitioners and Intervenors therefore failed to prove that the steps which the Board did not take were required or necessary.
CONCLUSIONS OF LAW
Jurisdiction and Standing.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54, Florida Statutes (1989).
This proceeding involves a challenge to the Proposed Rules pursuant to Section 120.54, Florida Statutes (1989). In order for either of the Petitioners to bring their challenges to the Proposed Rules and for any of the Intervenors to participate in the proceeding they must prove that they are substantially affected by the Proposed Rules. See, Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). See also, Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).
The Petitioners, Medivision, Inc., and Tampa Surgi-Center, d/b/a Ambulatory Surgery Center, have proved that they have standing to challenge the proposed rules at issue in these cases. Intervenors, Florida Hospital Association, Inc., Cataract Surgery Center, Cortez Foot Surgery Center, Ambulatory Surgery Center of Bradenton, Tampa Outpatient Surgical Facility, Naples Day Surgery, Ambulatory Surgical Center, Specialty Surgical Center and Tallahassee Single Day Surgery have proved that they have standing to participate in these cases.
The Eye Surgery Facility and FW Associates have withdrawn from the proceedings.
The Eye Associates and Cordova Ambulatory Surgical Center have failed to prove their standing to participate in these cases. The proof concerning Eye Associates consisted of an affidavit from an unidentified individual. The space provided in the affidavit to list the affiant's name was left blank and the signature is not legible. It would not be appropriate to rely upon such a document to make findings of fact in these cases. Cordova Ambulatory Surgical Center did not submit any proof upon which findings of fact could be made.
Standard of Review.
The Proposed Rules have been challenged as an invalid exercise of delegated legislative authority. An "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes (1989), as follows:
"Invalid exercise of delegated legislative authority" means 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 materially failed to follow the applicable rulemaking procedures set for in s. 120.54;
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 rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary and capricious.
The burden of proving that the Board has exceeded its authority in promulgating the Proposed Rules in these cases is on the Petitioners and the Intervenors. See, General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984); Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985); and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978).
The Board's Statutory Authority.
The Petitioners and Intervenors have argued that the Board has exceeded its delegated legislative authority because there is no specific authorization in Chapter 407, Florida Statutes (1989), requiring or authorizing the collection of the data which is to be collected pursuant to the Proposed Rules. They have suggested therefore that the Proposed Rules constitute an invalid exercise of delegated legislative authority as defined in Section 407.52(8)(c), Florida Statutes: "[t]he rule enlarges, modifies, or contravenes the specific provisions of law implemented..."
In determining whether the Board has exceeded its authority, it must be remembered that an agency's interpretation and construction of the statutes it is charged to enforce is entitled to great weight and will not be overturned by the courts if the interpretation and construction is not clearly erroneous or unauthorized. See Satellite Television Engineering, Inc. v. Department of General Services, 522 So.2d 440 (Fla. 1st DCA 1988). The deference to be accorded an agency's interpretation or construction is not, however, without limitation. Id.
An agency has no inherent power to promulgate rules; it derives that power from a statutory base. Grove Isle, Ltd. v. Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). Where an agency has been granted authority to adopt rules, the agency cannot enlarge, modify or contravene its statutory authority. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984); and Department of Insurance v. Insurance Services Office, 434 So.2d 908 (Fla. 1st DCA 1983). If, however, a rule is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, the rule must be sustained. Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985).
In adopting the Proposed Rules the Board cited Section 407.03, Florida Statutes, as the specific authority for the Proposed Rules and Sections 407.003,
407.07 and 407.08, Florida Statutes as the implemented laws. Section 407.03, Florida Statutes (1989), authorizes the Board to "[a]dopt, amend, and repeal rules respecting the exercise of the powers conferred by this chapter which are applicable to the promulgation of rules." This provision merely authorizes the Board to adopt rules to carry out its statutory powers.
Among the Board's powers and duties, Section 407.07, Florida Statutes (1989), gives the Board the authority to:
(a) Collect data and conduct analyses and studies relating to health care costs making maximum use of local health councils and the designated state health planning agency, whenever possible.
This provision alone gives the Board sufficient authority to collect data from freestanding ambulatory surgery centers. Prior to the enactment of Chapter 88- 384, Laws of Florida, the Board's authority pursuant to this Section (formerly numbered Section 395.508), applied to "hospitals", as did most of Chapter 395, Florida Statutes, and was limited to intermittent studies. The amendment of this Section eliminated the limitation of its application to "hospitals" and the frequency of studies. See Section 12, Chapter 88-384, Laws of Florida. With its expanded responsibility, the Board is now authorized to collect data relating to health care costs without any specific limitation on the type of health care provider from which the data may be collected. Therefore, the authority of the statute is broad enough to include the authority to collect data from ambulatory surgery centers.
The Legislature's amendment of Section 407.07, Florida Statutes, supports a conclusion that the Legislature intended to expand the Board's duties and responsibilities in regulating the health care industry. The conclusion that the Legislature intended to expand the Board's duties and responsibilities is consistent with the overall expansion of the Board's responsibilities under Chapter 407, Florida Statutes (formerly Chapter 395), pursuant to Chapter 88- 384, Laws of Florida.
In addition to amending Section 407.07, Florida Statutes, the Legislature's intent to expand the scope of the Board's responsibility is also evidenced in the amendment to Section 407.003, Florida Statutes (1989)(formerly numbered Section 395.5025). Section 407.003, Florida Statutes, was amended in at least two significant ways. First, the name of the Board was changed from the "Hospital Cost Containment Board" to the "Health Care Cost Containment Board." Additionally, Section 407.003(1)(a), Florida Statutes, was amended to add the following underlined language to the Legislative "intent" provision of Chapter 407:
(a) Advise the Governor, the
President of the Senate, and Speaker of the House of Representatives regarding health care costs, inflationary trends in health care costs, the impact of health care costs on the state budget, the impact of hospital and other provider charges, and third-party reimbursement mechanisms on health care costs.
As a result of the enactment of Chapter 88-384, Laws of Florida, the Board's authority under Chapter 407, Florida Statutes, generally includes the regulation of hospital costs through budget submission and review, indirect regulation of nursing home costs through the collection of data and broader authority to collect and analyze data relating to "health care costs."
Finally, Section 407.08, Florida Statutes (1989), as amended by Chapter 88-384, Laws of Florida, provides that the Board is to provide a report annually to the Governor and the Legislature including findings and recommendations with regard to the following issue, among others:
(4) The extent to which other factors in the health care marketplace may be affecting health care costs, including, but not limited to, uncompensated care, skilled employee shortages, changes in technology, shifts from institutional to ambulatory care, and shifts in the demographic makeup of the state's population. [Emphasis added].
Section 407.08(4), Florida Statutes (1989), was added by Section 13, 88-394, Laws of Florida.
In support of their position that the Board lacks authority to collect data from freestanding ambulatory surgery centers, the Petitioners and Intervenors have argued that the Legislature should have stated that data may be collected from ambulatory surgery centers in particular. They have also argued that the Legislature should have provided the Board with specific standards for the collection of such data. In support of these arguments the Petitioners and Intervenors have pointed to other provisions of Chapter 407, Florida Statutes (1989), which provide such particularity. See, e.g., Sections 407.02 and 407.05, Florida Statutes (1989). The Petitioners and Intervenors have cited no authority which supports their argument. Nor is the undersigned aware of any authority which requires that one statutorily granted responsibility must be as specific as another statutorily granted responsibility. The statutory authority relied upon by the Board, although not as specific as some provisions of Chapter 407, Florida Statutes (1989), is sufficient to allow the Board to collect data from freestanding ambulatory surgery centers.
The Petitioners and Intervenors have also suggested that the doctrine of expressio unius est exlusio alterius applies. It has been suggested that the Legislature's use of the term "hospital" in Chapter 407, Florida Statutes (1989), without using the terms "ambulatory surgery center" should be interpreted to mean that the Legislature intended to exclude any consideration of ambulatory surgery centers. This argument is rejected. The Legislature's use of the term "hospital" in Chapter 407, Florida Statutes (1989), does not indicate any intention to limit the scope of Chapter 407, Florida Statutes (1989) to hospitals and to exclude any application of the Chapter to other health care entities.
Based upon the foregoing it is concluded that the requirement of the Proposed Rules that data be collected and reported by freestanding ambulatory surgery centers does not constitute an invalid exercise of delegated legislative authority.
Scope of the Proposed Rules.
Although the Petitioners and Intervenors have not included any conclusions of law in their proposed final orders concerning the limitation on the persons to which the Proposed Rules apply, they did propose findings of fact presumably in an effort to prove that the Proposed Rules are invalid because of their limited application. Presumably, the Petitioners and Intervenors believe that the limited application of the Proposed Rules is arbitrary and capricious.
An arbitrary or capricious action or decision has been defined as follows:
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.
Agrico Chemical Company, 365 So.2d at 763. The Petitioners and Intervenors have proved that all of the actions of the Board in adopting the Proposed Rules challenged in this proceeding are subject to debate. They have also proved that the Board's actions are all subject to legitimate criticism. They have also proved that there may even be alternative ways of dealing with the subject of the Proposed Rules. The Petitioners and Intervenors have not, however, proved that the actions of the Board in limiting the scope of the Proposed Rules or the matters discussed in paragraphs E-H of the Conclusions of Law portion of this Final Order were actions taken without thought or reason or irrationally or that those actions are not supported by facts or logic or despotic.
The weight of the evidence failed to prove that the limitation of the application of the Proposed Rules to the hospitals designated and to licensed freestanding ambulatory surgery centers is arbitrary or capricious or otherwise beyond the scope of the Board's delegated legislative authority.
Specific Data vs. Aggregate Data.
The Petitioners and Intervenors have also proposed findings of fact presumably in an effort to prove that the Proposed Rules are invalid because of their requirement that specific data be collected and submitted instead of aggregate data. Presumably, the Petitioners and Intervenors believe that the requirement of the Proposed Rules that specific data be collected and submitted is arbitrary and capricious.
The weight of the evidence failed to prove that the requirement of the Proposed Rules that specific data be collected and submitted is without reason. The Proposed Rules' requirement concerning specific data is not arbitrary or capricious or otherwise beyond the scope of the Board's delegated legislative authority.
Confidential Patient Data.
The Petitioners and Intervenors have proposed findings of fact concerning the requirement of the Proposed Rules that confidential patient information be submitted. The weight of the evidence failed to prove that the Proposed Rules violate any law providing for confidentiality of patient information. The Petitioners and Intervenors have also failed to prove that the Board's use of data received pursuant to the Proposed Rules will violate any such laws.
The weight of the evidence failed to prove that the requirement of the Proposed Rules concerning confidential patient information is arbitrary and capricious or otherwise beyond the scope of the Board's delegated legislative authority.
Computer Use.
The Petitioners and Intervenors have argued that the Proposed Rules should be declared invalid because they require the expertise of a computer operator to understand "much of its undefined language." In support of this position the Petitioners and Intervenors have cited The City of St. Petersburg
v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982).
Based upon the weight of the evidence it is concluded that the use of computer language in the Proposed Rules does support a conclusion that the Proposed Rules are invalid. The general requirements and application of the Proposed Rules can be understood and interpreted with common intelligence. A person with common intelligence would be apprised of the need to seek the assistance of a person with computer knowledge to carry out the more specific requirements of the Proposed Rules.
Errors in the Proposed Rules.
The evidence proved that there are a number of relatively insignificant errors or problems in the Proposed Rules. Those errors are not, however, sufficient to support a conclusion that the Proposed Rules are vague or otherwise beyond the scope of the Board's delegated legislative authority.
I. The Economic Impact of the Proposed Rules on Affected Persons.
Intervenor, Florida Hospital Association, Inc. (hereinafter referred to as the "Association"), has argued that the Proposed Rules constitute an invalid exercise of delegated legislative authority because the requirements of the Proposed Rules are more costly, burdensome and detailed than necessary. The Association has not stated which specific portion of the definition of an "invalid exercise of delegated authority" of Section 120.52(8), Florida Statutes (1989), it believes the Board's Proposed Rules violate. Presumably the Association believes that the cost of complying with the Proposed Rules causes them to be "arbitrary or capricious." See Section 120.52(8)(e), Florida Statutes (1989).
In support of its position the Association has relied upon testimony from Mr. Allen Pearman concerning the ability of the Board to fulfill its responsibilities under Chapter 407, Florida Statutes (1989), with aggregate data. The Association's position concerning Mr. Pearman's testimony fails to
consider all of Mr. Pearman's testimony. Although Mr. Pearman did indicate that he believed that the Board could fulfill its responsibilities under Chapter 407, Florida Statutes, with aggregate data, he also indicated that the use of aggregate data has shortcomings. The weight of the evidence proved that specific data will allow more flexibility for research purposes, will assure greater accuracy of data, will assure better comparability of data and will assure that recommendations are more accurate. Therefore, the weight of the evidence failed to prove that the Board's decision to require the collection and submission of specific data instead of aggregate data was without reason.
The Association has also suggested that "[t]here is nothing in the record containing an analysis of the respective costs of data collection as specified in the proposed rules versus data collection through insurance companies or data collection on an aggregate basis." Thus, the Association has suggested that the Board should have conducted a cost benefit analysis comparing the cost of collecting aggregate data versus the cost of collecting specific data. This position fails to recognize that there is no requirement in Chapters
120 or 407, Florida Statutes (1989), that the Board perform such a cost analysis. More importantly, the Association's argument fails to recognize that the Petitioners and Intervenors had the burden of proof in this case. Thus, the Petitioners and Intervenors were required to present sufficient proof that the cost of implementing the Proposed Rules is arbitrary and capricious; the Board was not required to prove that the cost of implementing the Proposed Rules is not arbitrary and capricious. The Petitioners and Intervenors have failed to meet their burden of proof.
J. Economic Impact Statement.
Section 120.54(2)(b), Florida Statutes (1989), requires that agencies adopting rules prepare a detailed economic impact statement as part of the rulemaking process. The economic impact statement is to include the following:
An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;
An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;
An estimate of the impact of the proposed action on competition and the open market for employment, if applicable;
A detailed statement of the data and method used in making each of the above estimates; and
An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985.
Section 120.54(2)(b), Florida Statutes (1989).
The evidence in this proceeding failed to prove that the EIS did not adequately address the requirements of Sections 120.54(2)(b)1, 3 and 4, Florida Statutes (1989). At issue is the question of whether the EIS adequately addressed the requirements of Sections 120.54(2)(b)2 and 5, Florida Statutes (1989).
The evidence proved that the EIS did not adequately address the estimated cost (implementation and ongoing costs) to persons directly affected by the Proposed Rules. The Board's treatment of this issue in the EIS did not approach the level of detail necessary to indicate that the Board had conducted a comprehensive analysis of the economic impact on affected persons. See Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983). The evidence also proved that the conclusion of the Board concerning the impact on small business contained in the EIS was incorrect. See Section 120.54(2)(a), Florida Statutes (1989). These conclusions, however, are not dispositive of the question of whether the EIS is sufficient.
The preparation of an economic impact statement is a procedural requirement. Any defect in its preparation will not defeat an otherwise valid rule as long as the evidence proves that an agency fully considered the economic impact of its action or that the agency's action will have no economic impact. See Wright, supra. See also, Division of Workers' Compensation v. McKee, 413 So.2d 805 (Fla. 1st DCA 1982); and Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979). Unless there has been a material error in an agency's preparation of an economic impact statement which impairs the fairness of the proceedings or the correctness of the action taken, an error is a harmless error. Id.
The Petitioners and Intervenors proved that the Proposed rules will have an economic impact. The weight of the evidence failed to prove, however, that the agency failed to fully consider the economic impact of the Proposed Rules on affected persons and small business. Therefore, the failure of the EIS to comply fully with the requirements of Section 120.54, Florida Statutes (1989), is harmless error.
No one disputes the fact that the Proposed Rules will have an economic impact on affected persons. The evidence proved that affected persons will incur implementation and ongoing costs to comply with the Proposed Rules. With regard to implementation costs, the Petitioners and Intervenors attempted to prove that the Board's estimate of such costs was too low and that the Board should have taken other steps to determine such costs. The weight of the evidence failed to support such findings. The weight of the evidence also failed to prove that the steps taken, and conclusions reached, by the Board concerning implementation costs were not reasonable.
The Petitioners and Intervenors also attempted to prove that the Board's consideration of ongoing costs was not adequate. This issue was more difficult to resolve because the Board did not actually estimate the amount of ongoing costs which may be caused by the Proposed Rules. All the Board did was indicate that those costs will be less than the cost of implementation. Based upon the weight of the evidence the Petitioners and Intervenors failed to prove that the Board's conclusion concerning ongoing costs was incorrect; the credible evidence presented during the formal hearing indicates that ongoing costs will in fact be less than implementation costs, which are estimated at between
$2,900,000.00 and $3,100,000.00.
Finally, the Petitioners and Intervenors attempted to prove that the Board failed to consider the economic impact on small business. Again, the Petitioners and Intervenors failed to meet their burden of proof. The reliance upon a statement of Mr. Pearman to the effect that the Board did not consider the legal definition of "small business" is misplaced and ignores Mr. Pearman's further explanation of the Board's actions. That explanation supports a conclusion that the Board did consider the economic impact on small business which could be expected from the Proposed Rules.
Additionally, the Petitioners and Intervenors failed to prove that any small businesses will actually be affected by the Proposed Rules. Although evidence was presented concerning the number of employees at, and the net worth of, some of the Intervenors, evidence concerning whether those Intervenors are "independently owned and operated" was not presented. In fact, the evidence seemed to indicate that the Intervenors do not meet this portion of the definition of "small business."
Based upon the foregoing, it is concluded that the deficiencies in the EIS constitute harmless error.
FINAL ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:
The Petitioners and Intervenors have failed to prove that the Proposed Rules constitute an invalid exercise of delegated legislative authority.
Accordingly, the Petitions are DISMISSED.
DONE and ORDERED this 28th day of June, 1990, in Tallahassee, Florida
LARRY J. SARTIN
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 28th day of June, 1990.
APPENDIX TO FINAL ORDER, CASE NOS. 90-2252RP, 90-2253RP
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioners' and Intervenors' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order
of Fact Number of Acceptance or Reason for Rejection
1 6, 17 and 21.
2 5.
3 17.
4-5 18.
6 Hereby accepted and 16.
7 6 and 25-26.
8 See 29-33.
9 47-50. The weight of the evidence failed to prove that surveys were sent to hospitals.
10-11 See 50.
12 42-43 and 75.
13-14 See 50.
15 52.
16 43 and 69.
17 Not relevant. See 81.
18 53 and 55.
Hereby accepted.
55. Except for the first sentence, these proposed findings of fact are not relevant.
See 58.
Not supported by the weight of the evidence.
23-24 See 81.
Not supported by the weight of the evidence.
See 81.
27 75.
See 81.
See 79. Except for the conclusion that the entities listed in this proposed finding of fact "qualify as a small business", this proposed finding is accepted.
30-35 See 81.
36-38 Hereby accepted.
39 Not relevant.
40-42 Not supported by the weight of the evidence.
Not relevant.
See 14.
Not relevant.
Not supported by the weight of the evidence.
Not relevant.
See 22.
49 22.
50 See section G of the Findings of Fact.
51 36.
38-40. The weight of the evidence failed to prove that these errors constitute vagueness. Paragraph 52 E is not supported by the weight of the evidence and 52 F is not relevant.
Not supported by the weight of the evidence except for the portion dealing with "Field 4" and "Fields 25-27." Those fields are not, however, vague.
54-55 Hereby accepted.
56 Accepted in part. See 60.
57 70.
58-60 Hereby accepted.
61 58.
62-63 Hereby accepted.
Hereby accepted. See 57.
Not supported by the weight of the evidence and not relevant.
Hereby accepted.
67-68 Not relevant.
Not supported by the weight of the evidence.
Hereby accepted.
71-73 Not relevant.
74-81 These proposed findings of fact are not supported by the weight of the evidence. These proposed findings of fact are based upon the testimony of the financial officer of Specialty Surgery Center. During questioning of this witness she was unable to answer questions posed by counsel for the Board during cross examination concerning the financial condition of an entity related to the Specialty Surgery Center. This inability to answer the questions was either caused by the witnesses lack of memory or her refusal to answer. Under either circumstance, it would be inappropriate to make any findings of fact based upon her testimony.
Hereby accepted.
See 71-72. The last sentence is accepted in finding of fact 73.
84-85 61.
Hereby accepted. See 57.
While it is true that CSC made these estimates, the estimates are rejected as not supported by the weight of the evidence.
Hereby accepted.
89 62.
90 A finding of fact that such advise was given is not relevant to this proceedings. A finding of fact that such advice was accurate would be based upon hearsay.
91 63-64
92 64.
Not supported by the weight of the evidence.
Not relevant.
Not supported by the weight of the evidence. These proposed findings take Mr. Solano's testimony out of context. The testimony was based upon a hypothetical not supported by any facts in evidence.
Not relevant and based upon hearsay.
Not relevant.
The first sentence is hereby accepted. The last sentence is not supported by the weight of the evidence.
100-101 Not relevant.
The Association's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1-4 Hereby accepted.
5 6 and 17.
6 5.
7 17.
8-9 18.
10 Hereby accepted and 16. 11-14, 16-19,
21-25, 31 and 43 See 81.
15 Not supported by the weight of the evidence.
20 See 75-76.
26 22.
27 23.
28 Not relevant.
29 23.
30 Not relevant.
32 44.
See 53.
Not relevant.
35-39 These proposed findings of fact were taken into account, to the extent true, in determine the credibility of, and the weight to be given to, Mr. Solano's testimony.
40-41 Hereby accepted.
42 Not relevant.
The Board's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1.
2 2.
3 3.
4. Ambulatory Surgery Center did present proof of its standing.
The alternative proposed findings of fact were accepted in findings of fact 3 and 4. The Board has not argued that it has been prejudiced by the late filing of the affidavits of these Intervenors. Therefore, they have not been rejected.
6 6 and 26.
7 17.
8 16.
9 19.
10 25.
11 22-24.
12 27.
13 26.
Hereby accepted.
Not relevant.
16 29-30.
17 36.
18 35.
19 8 and hereby accepted.
20 9.
21 10.
22 11-13.
23 45 and 67.
24 57 and 66-67.
25 55 and 58.
26 59.
Hereby accepted.
Not relevant. The weight of the evidence failed to prove what the total costs of using a service bureau would be. Therefore, this evidence does not support any conclusion concerning the total impact on affected persons.
Hereby accepted.
30 60.
31 See the discussion concerning the Petitioners' and Intervenors' proposed findings of fact 74-81.
32 61 and 71-73.
33 64.
34 47.
35 48-49 and 51-52.
36 53.
37 54.
38 55.
39 75.
40 76-78.
41 79.
COPIES FURNISHED:
Gary Walker, Esquire Liz Cloud, Chief
Pennington, Wilkinson, Dunlap Bureau of Administrative Code Bateman & Camp The Capitol, Room 1802
3375-A Capital Circle, N.E. Tallahassee, Florida 32399-0250 Tallahassee, Florida 32317
Julia P. Forrester Carroll Webb, Exec. Director
Senior Attorney Administrative Proc. Committee Health Care Cost Containment Holland Building, Room 120
Board Tallahassee, Florida 32399-1300
301 The Atrium
325 John Knox Road Tallahassee, Florida 32302
Louise T. Jeroslow, Esquire
J. A. Ziskind, Esquire Matzner, Ziskind, Kosnitzky &
Jaffee, P. A.
100 South East 2d Street, 28th Floor Miami, Florida 33131
Stephen Presnell, General Counsel Health Care Cost Containment Board Woodcrest Office Park
325 John Knox Road Building L, Suite 101 Tallahassee, Florida 32303
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.
================================================================= DOAH ORDER GRANTING MOTION TO CORRECT SCRIVENER'S ERROR
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MEDIVISION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-2252RP
) STATE OF FLORIDA, HEALTH CARE ) COST CONTAINMENT BOARD, )
)
Respondent, )
and )
) FLORIDA HOSPITAL ASSOCIATION, ) INC., )
)
Intervenor. )
)
)
TAMPA SURGI-CENTER, d/b/a )
AMBULATORY SURGERY CENTER, )
)
Petitioner, )
)
vs. ) CASE NO. 90-2253RP
) STATE OF FLORIDA, HEALTH CARE ) COST CONTAINMENT BOARD, )
)
Respondent, )
and )
) CATARACT SURGERY CENTER, CORTEZ ) FOOT SURGERY CENTER, AMBULATORY ) SURGERY CENTER OF BRADENTON, )
TAMPA OUTPATIENT SURGICAL ) FACILITY, NAPLES DAY SURGERY, ) AMBULATORY SURGERY CENTER, )
SPECIALTY SURGICAL CENTER, ) TALLAHASSEE SINGLE DAY SURGERY ) and FLORIDA HOSPITAL ASSOCIATION, ) INC., )
)
Intervenors. )
)
ORDER GRANTING MOTION TO CORRECT SCRIVENER'S ERROR
A Final Order was issued in these cases on June 28, 1990. On August 8, 1990, the Petitioner filed a Motion to Correct Scrivener's Error. In the Motion the Petitioner has requested that the first sentence appearing on page 33 of the Final Order be amended to read as follows:
Based upon the weight of the evidence
it is concluded that the use of computer language in the Proposed Rules does not support a conclusion that the Proposed Rules are valid.
As this sentence appears in the Final Order issued on June 28, 1990, it is obviously incorrect. Accordingly, it is
ORDERED:
The Motion to Correct Scrivener's Error is GRANTED; and
The attached corrected page 33 is substituted for page 33 of the Final Order previously issued in these cases on June 28, 1990.
DONE and ORDERED this 8th day of August, 1990, in Tallahassee, Florida.
LARRY J. SARTIN
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 8th day of August, 1990.
COPIES FURNISHED:
Gary Walker, Esquire Pennington, Wilkinson, Dunlap
Bateman & Camp
3375-A Capital Circle, North East Tallahassee, Florida 32317
Julia P. Forrester Senior Attorney
Health Care Cost Containment Board
301 The Atrium
325 John Knox Road Tallahassee, Florida 32302
Louise T. Jeroslow, Esquire
J. A. Ziskind, Esquire Matzner, Ziskind, Kosnitzky &
Jaffee, P.A.
100 South East 2d Street, 28th Floor Miami, Florida 33131
Based upon the weight of the evidence it is concluded that the use of computer language in the Proposed Rules does not support a conclusion that the Proposed Rules are invalid. The general requirements and application of the Proposed Rules can be understood and interpreted with common intelligence. A person with common intelligence would be apprised of the need to seek the assistance of a person with computer knowledge to carry out the more specific requirements of the Proposed Rules.
H. Errors in the Proposed Rules.
The evidence proved that there are a number of relatively insignificant errors or problems in the Proposed Rules. Those errors are not, however, sufficient to support a conclusion that the Proposed Rules are vague or otherwise beyond the scope of the Board's delegated legislative authority.
I. The Economic Impact of the Proposed Rules on Affected Persons.
Intervenor, Florida Hospital Association, Inc. (hereinafter referred to as the "Association"), has argued that the Proposed Rules constitute an invalid exercise of delegated legislative authority because the requirements of the Proposed Rules are more costly, burdensome and detailed than necessary. The Association has not stated which specific portion of the definition of an "invalid exercise of delegated authority" of Section 120.52(8), Florida Statutes (1989), it believes the Board's Proposed Rules violate. Presumably the Association believes that the cost of complying with the Proposed Rules causes them to be "arbitrary or capricious." See Section 120.52(8)(e), Florida Statutes (1989).
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
CATARACT SURGERY CENTER, NOT FINAL UNTIL TIME EXPIRES TO CORTEZ FOOT SURGERY CENTER, FILE MOTION FOR REHEARING AND AMBULATORY SURGERY CENTER OF DISPOSITION THEREOF IF FILED. BRADENTON, TAMPA OUTPATIENT
SURGICAL FACILITY, NAPLES
DAY SURGERY, AMBULATORY CASE NO. 90-02205 SURGERY CENTER, SPECIALTY DOAH CASE NO. 90-2253RP SURGERY CENTER, and
TALLAHASSEE SINGLE DAY SURGERY,
Appellants,
HEALTH CARE COST CONTAINMENT BOARD,
Appellee.
/ Opinion filed June 6, 1991.
An appeal from an order of the Department of Administration.
Louise T. Jeroslow, Martin Kurzer and Joshua D. Lerner of Matzner, Ziskind, Hermelee, & Jaffee, P.A., Miami, for Appellants.
Julia P. Forrester, General Counsel, Health Care Cost Containment Board, Tallahassee, for Appellee.
WOLF, J.
Before us is an appeal from a challenge validity of the Health Care Cost Containment Board's (HCCCB) proposed rules 10N-6.002, 10N-6.003, 10N-6.004, 10N- 6.005, and 10N-6.006, Florida Administrative Code, relating to collection of data from freestanding ambulatory surgery centers. The hearing officer upheld the validity of the proposed rules. Appellants, freestanding ambulatory surgical centers, allege that the hearing officer erred in upholding the validity of the proposed rules because (1) the HCCCB lacks the statutory authority to require the collection and submission of 45 data items from all patients of freestanding ambulatory surgical centers, and (2) the economic impact statement is fatally deficient. We find merit in both of appellants' contentions, and reverse.
On March 23, 1990, the HCCCB published the Notice of Proposed Rulemaking as required by section 120.54, Florida Statutes. The notice stated that the proposed rules would provide for the collection of 45 data items on a quarterly
basis by computer tape or diskette from all freestanding ambulatory surgery centers and hospitals providing ambulatory surgery services; the stated purpose, "to accomplish the board's legislative mandate to collect data and conduct analysis and studies relating to health care costs and to meet the requirement that the board report to the governor and the Legislature the extent to which shifts from institutional to ambulatory care may be affecting health care costs." In the notice, the HCCCB identified their statutory authority for the proposed rules as sections 407.003, 407.03, 407.07, and 407.08, Florida Statutes
(1990).
In preparing the economic impact statement (EIS) for the notice, the HCCCB sent survey requests to all freestanding and hospital-based ambulatory surgery centers. Based upon an analysis of these surveys, the HCCCB made an estimate of the cost of initial compliance with the data submission requirements. The surveys did not deal with ongoing costs of compliance. The only reference to ongoing costs in the EIS was that "[o]ngoing costs will be substantially less after the initial development of the program." At the hearing on the rule challenge, appellants presented several witnesses concerning these ongoing costs. Their evidence demonstrated that in a number of cases these costs would be substantial. The EIS also indicated that there was no anticipated effect on small business. Following the hearing on the proposed rules, the hearing officer determined that there was legislative authority for the rules and that any defect in the EIS was harmless.
An agency rule may be declared to be an invalid exercise of delegated legislative authority if, among other things,
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); or
The rule is arbitrary or capricious. Sections 120.52(8)(a),(c,)and (e),
F.S. (1989). In the instant case, we are asked to determine whether the provisions of chapter 407, Florida Statutes, allow the the HCCCB to exercise regulatory authority (require submission of data) over freestanding ambulatory surgical centers. A reading of the entire chapter indicates that the HCCCB does not have this authority. We do not believe the cited sections indicated by the HCCCB confer jurisdiction upon it.
An agency's construction of the statute it administers is entitled to great weight and is not overturned unless clearly erroneous. Pan American Airways, Inc. v. Florida Pub. Serv. Comm'n, 427 So.2d 716 (Fla. 1983). 1/ An agency is given broad discretion in the exercise of its lawful authority and the burden is on a petitioner to demonstrate that a rule is arbitrary and capricious.
Department of Professional Regulation, Bd. of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).
A slightly different analysis takes place, however, where the jurisdiction of the agency is in question. An agency may not enlarge, modify, or contravene legislative pronouncements. Section 120.53(8), F.S. (1989); United States Shoe Corp. v. Department of Professional Regulation, Bd. of Opticianry, 16 F.L.W. 998 (Fla. 1st DCA April 11, 1991). This court held in Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA
1989), that proposed rules which expand the authority of the state agency beyond that established by the statutory scheme were invalid. 2/ Any attempt by an agency to extend or enlarge its jurisdiction beyond its statutory authority will be declared to be invalid. Board of Trustees Of Internal Improvement Trust Fund
Board of Professional Land Surveyors, 566 So.2d 1358 (Fla. 1st DCA 1990); Board of Optometry v. Florida Medical Ass'n, 463 So.2d 1213 (Fla. 1st DCA 1985), rev. denied, 475 So.2d 693 (Fla. 1985). Regulatory jurisdiction of an agency may only be exercised when authorized by law. Department of Health and Rehabilitative Services v. Florida Psychiatric Soc'y Inc., 382 So.2d 1280 (Fla. 1st DCA 1980). In determining whether the agency has enlarged upon its statutory authority, the court may look at the entire statutory framework as well as the specific provisions cited as statutory authority. United States Shoe Corp., supra, at D999.
Section 407.03(1), Florida Statutes (1989), gives the board the power to adopt, amend, and repeal rules respecting the exercise of the powers conferred by this chapter which are applicable to the promulgation of rules. (Emphasis added). The general grant of rulemaking power quoted above is of limited help, however, in determining an agency's specific jurisdiction or authority. It is of little legal significance because it is generally a restatement of the common law concerning agency powers. State Dep't of Ins. v. Insurance Serv. Office, 434 So.2d 908, 910 (Fla. 1st DCA 1983), rev. denied, 444 So.2d 416 (Fla. 1984).
In fact, in light of the underlined language above, the general grant of power to the HCCCB in this case may be viewed as more limited than the general authority given to many agencies. The grant of power to the HCCCB appears to only apply where specific sections of the chapter confer such rulemaking power.
The other sections relied on by the board as statutory authority for its rulemaking power are sections 407.003, 407.07, and 407.08, Florida Statutes. The relevant portions are quoted below.
Section 407.003(1)(a) and (d) provides as follows:
It is the intent of the Legislature to assure that adequate health care is affordable and accessible to all the citizens of this state. To further the accomplishment of this goal, the Health Care Cost Containment Board is created to:
Advise the Governor, the President of the Senate, and the Speaker of the House of Representatives regarding health care costs, inflationary trends in health care costs, the impact of health care costs on the state budget, the impact of hospital and other provider charges, and third-party reimbursement mechanisms on health care costs.
(d) Recommend to the Governor, the President of the Senate, and the Speaker of the House of Representatives appropriate strategies necessary to foster health care cost containment and improve access to health care services.
Section 407.07(1) (a) provides as follows:
(1) The board shall have the authority to:
(a) Collect data and conduct analyses and studies relating to health care costs, making maximum use of local health councils and the designated skate health planning agency whenever appropriate. 3/
Section 407.08 provides as follows:
On or before March 1 of each year, the board shall prepare and transmit to the Governor and the Legislature a report ... [to include] the extent to which other factors in the health care marketplace may be affecting health care costs, including ... shifts from institutional to ambulatory care. ...
At first glance, these sections may appear to give the HCCCB authority to gather information from all portions of the health care industry. When read in para materia with the rest of chapter 407, however, it is apparent that the Legislature intended that information would be provided by hospitals and nursing homes. Chapter 407 provides a detailed framework of regulation and reporting requirements for hospitals and nursing homes, but there is no indication of legislative intent to allow the HCCCB to exercise jurisdiction over freestanding ambulatory surgery centers.
Section 407.03(1) mandates that the board adopt rules requiring hospitals to submit information which is essential to budget review and approval. The HCCCB is to gather all information from hospitals which is necessary to carry out its statutory responsibility to provide public information and education. This subsection also goes into detail concerning what data may be required from hospitals. Section 407.005, Florida Statutes (1989), grants hospitals immunity from any liability as a result of reporting patient data to the HCCCB. Section 407.05(1), Florida Statutes (1989), allows the HCCCB to set up a uniform system of financial reporting for hospitals. The rest of this subsection sets out with specific detail what hospitals shall file with the HCCCB. Section 407.09, Florida Statutes (1989), requires the board to report to the public on hospital charges.
Section 407.30-407.34, Florida Statutes (1989), contains a similar regulatory framework for nursing homes. Section 407.30, Florida Statutes (1989), sets forth the legislative intent to control costs in nursing homes, and finds that the HCCCB is "the agency best qualified" to monitor, collect, and analyze data from nursing homes. Section 407.31, Florida Statutes (1989), provides for a uniform system of financial reporting for nursing homes. This section also provides a detailed method of reporting on individual patients.
The HCCCB is also required to analyze nursing home financial reports and provide information to consumers regarding the cost of nursing home care.
In stark contrast to this detailed scheme of regulation is the total silence of chapter 407 in regard to providing authority to collect, or establishing a method of collecting information from freestanding ambulatory centers. In fact, chapter 407 does not demonstrate any relationship between the HCCCB and freestanding ambulatory surgical centers. Section 407.002, Florida Statutes (1989), defines hospitals and nursing homes, but does not define
ambulatory surgical care centers; section 407.01, Florida Statutes, provides for membership on the HCCCB by the profit and not-for-profit hospitals as well as nursing homes, but there is no representation on the board from freestanding ambulatory surgery centers.
In light of the specific regulatory authority given to the HCCCB over hospitals and nursing homes, including the specific authority to collect data from hospitals and nursing homes, the specific statutory language concerning what data must be collected, and how the data is to be utilized in providing public information, we find that the language in section 407.08, Florida Statutes, which refers to the HCCCB's responsibility to report "shifts from institutional to ambulatory care," is totally inadequate authority to assert jurisdiction over freestanding ambulatory surgical centers. We specifically decline to infer that an agency may require detailed and expensive reporting from any business which may have information relevant to the agency's purpose in situations where the-agency is given no other regulatory authority, and where there is no specific legislative authority to require the collection of such data.
We next deal with the validity of the economic impact statement. Section 120.54(2)(b) requires an agency which is adopting a rule to prepare a detailed economic impact statement which must include, "an estimate of the cost or economic benefit to all persons directly affected by the proposed action," and "an analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985."
The purpose of an economic impact statement is "to promote agency introspection in administrative rulemaking; to ensure a comprehensive and accurate analysis of economic factors, which factors will work together with social factors and legislative goals underlying agency action; to direct agency attention to key considerations and thereby facilitate informed decision making." Department of Health and Rehabilitative Servs. v. Wright, 439 So.2d 937, 940 (Fla. 1st DCA 1983), citing Florida-Texas Freight. Inc. v. Hawkins, 379
So.2d 944, 946 (Fla. 1979).
In the instant case, the hearing officer's findings included the following:
The EIS is insufficient because it does not adequately discuss the costs (implementation and ongoing costs to affected persons or the impact of the Proposed Rules on small business;
The weight of the evidence proved that the Proposed Rules will have an economic impact on affected persons;
The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the implementation cost affected persons can be expected to incur as a result of the Proposed Rules.
As to that portion of the EIS dealing with small businesses, the hearing officer found:
The EIS contains a statement that the Proposed Rules should have no economic impact on small business. In reaching this conclusion the Board failed to take into account the legal definition of `small business' contained in Florida Statutes;
The Board did, however, actually consider the impact the Proposed Rules would likely have on small ambulatory surgery centers subject to the Proposed Rules;
The Board attempted to reduce the economic impact on small ambulatory surgery centers by allowing affected persons to file data on computer tape or on diskette. By allowing the use of diskettes for reporting data, the Board made it possible for affected persons to use personal computers to comply with the Proposed Rules. Delayed submission of some data elements was also allowed in order to reduce the impact on small facilities;
It is unlikely that the Board would have made further modifications of the Proposed Rules had the legal definition of `small business' been considered. The weight of the evidence failed to prove what, if any, reasonable modifications should have been taken by the Board to accommodate any economic impact on small business;
The weight of the evidence failed to prove whether any of the entities that participated in the proceeding were small businesses. Those entities, although meeting the definition of small business with regard to the number of employees they have and their net worth, failed to prove whether they are "independently owned and operated." See Section 288.703(1), Florida Statutes (1989). The weight of the evidence failed to prove if any person affected by the Proposed Rules is a small business;
The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of small business which can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of the impact on small business in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules
constitute an invalid exercise of delegated legislative authority because of the impact on small business.
Preparation of an economic impact statement is a procedural requirement, and any defect in its preparation will not defeat an otherwise valid rule as long as evidence proves that an agency fully considered the economic impact of its action or if it is established that the agency's proposed action will have no economic impact. See Division of Workers' Compensation v. McKee, 413 So.2d 805 (Fla. 1st DCA 1982); Polk School Bd. of Polk County, 373 So.2d 960 (Fla. 2nd DCA 1979). The harmless error doctrine will be applied unless the challenging party can show that deficiencies in the economic impact statement impair the fairness of the rulemaking proceedings. Humana, Inc. v. Department of Health and Rehabilitative Servs., 469 So.2d 889 (Fla. 1st DCA 1985). Here, the hearing officer determined, in effect, that any defects in the determination of economic impact in the instant case constituted harmless error.
We do not believe, however, that the application of the harmless error doctrine was intended to totally relieve an agency of its obligation to make reasonable attempts to follow mandated statutory procedures. Where, as here, the agency has apparently ignored its statutory duty, it is impossible for the hearing officer or this court to determine that there is no economic impact or that the agency fully considered the statutorily mandated factors. Cf. Division of Workers' Compensation v. McKee, supra (factors to be considered in application of harmless error doctrine).
In the instant case, the record is devoid of any evidence that the HCCCB made any attempt to evaluate ongoing costs. The hearing officer acknowledges and the evidence supports the finding that the ongoing costs of complying with the proposed rules will have an economic impact on "affected persons." We cannot find that the board fully considered the economic impact of substantial ongoing costs, especially where these costs were reasonably ascertainable and the board took no action to discover that information. Furthermore, had the board been fully aware of these costs, that knowledge may have had an impact on the board's decision as to what data to require and what method to utilize in collecting that data.
We are also concerned with the board's failure to follow the procedures relating to small and minority businesses. The Legislature has specifically expressed its special interest in the effect of proposed agency rules on these types of businesses. If an agency determines that there will be an impact on small business, the agency is required to send "written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action." Section 120.54(3)(b), F.S. (1989). The statute further provides for comments from these offices and requires the adopting agency to adopt or respond to comments.
Circumvention of this procedure may result in a rule being declared to be invalid.
In the instant case, the hearing officer found that none of the parties challenging the proposed rules demonstrated that they were a small or minority business. He also stated that it had not been proven that the board did not fully consider the asserted economic impact on small business. We feel that this factor is not dispositive. Section 120.54(3)(b) specifically provides that certain parties are to receive notice and are to be allowed to provide input prior to agency adoption of rules. Failure to provide notice may have precluded
these parties from providing input essential to protecting small businesses. It cannot be assumed that the board would have rejected input from these representatives of small business. In light of our other rulings, however, it is unnecessary for us to rule on this issue or the standing of the appellants in regard to the small and minority business issue.
The decision of the hearing officer is, therefore, reversed and the proposed rule is declared to be invalid.
BOOTH and ZEHNER, JJ., concur.
ENDNOTES
1/ For instance, appellant challenged the wisdom of requiring specific versus aggregate data. If HCCCB had statutory authority to require data submission by the appellants, the level and method of data collection may well be within the lawful discretion of the agency. Since we determine there is no lawful authority to require submission, we need not reach the issue.
2/ In Florida League of Cities, rules proposed by the Department of Insurance to regulate municipal retirement and pension plans were challenged on the ground of an invalid exercise of legislatively delegated authority. The result in the Florida League of Cities' case has recently been discussed in Burris, Survey of Florida Law: Administrative Law, 14 Nova L.Rev. 583, 594 (1990), and was reported to be "consistent with the distinction between implied powers argument used to expand agency jurisdiction beyond that delegated to it by the Legislature as compared to when it is merely used to provide additional powers for implementing agency policy in an area clearly within its delegated area of authority."
3/ The rest of this section deals with hospitals and care provided by hospitals.
MANDATE
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable, Larry J. Sartin, Hearing Officer
Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:
TAMPA SURGI-CENTER, d/b/a AMBULATORY SURGERY CENTER vs.
STATE OF FLORIDA, HEALTH CARE COST CONTAINMENT BOARD
and
CATARACT SURGERY CENTER, CORTEZ FOOT SURGERY CENTER, AMBULATORY SURGERY CENTER OF BRADENTON, TAMPA OUTPATIENT SURGICAL FACILITY, et al.
Case No. 90-2205
Your Case No. 90-2253RP
The attached opinion was rendered on June 6, 1991
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 16th day of August, 1991
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Jun. 28, 1990 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 06, 1991 | Opinion | |
| Jun. 28, 1990 | DOAH Final Order | Proposed rules requiring ambulatory surgery services providers to collect and report data electronically not proved to be invalid. |
