STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA OPTOMETRIC ASSOCIATION, ) ALBERT ARAN, M.D., PHILIP ) DAGOSTINO, O.D., PAUL E. GARLAND, ) M.D., and JOHN McCLANE, III, O.D., )
)
Petitioners, )
and )
) FLORIDA NURSES ASSOCIATION and ) FLORIDA DEPARTMENT OF CORRECTIONS, )
)
Intervenors, )
)
vs. ) CASE NO. 91-0534RX
)
FLORIDA BOARD OF MEDICINE, )
)
Respondent, )
and )
) FLORIDA MEDICAL ASSOCIATION and ) WAITE S. KIRKCONNELL, M.D., )
)
Intervenors. )
)
FINAL ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 22, 23 and 24, 1991, in Tallahassee, Florida.
APPEARANCES
For Petitioners: James C. Adkins, Esquire and the Florida Leonard A. Carson, Esquire Nurses Association Rosa H. Carson, Esquire
Lucille E. Turner, Esquire CARSON, LINN & ADKINS
1711-D Mahan Drive Tallahassee, Florida 32308
Department of Elaine D. Hall and Judy A. Bone Corrections: Assistants General Counsel
Department of Corrections 2601 Blair Stone Road
Tallahassee, Florida 32399-2500
For Respondent: Ann Cocheu, Esquire
Arthur R. Wiedinger, Jr. Assistant Attorneys General Department of Legal Affairs The Capitol, Suite 1603
Tallahassee, Florida 32399-1050
For Respondent/ Scott D. Makar, Esquire Intervenors: D. Bruce May, Esquire
HOLLAND & KNIGHT
Post Office Drawer 810 Tallahassee, Florida 32302
John Thrasher, Esquire Florida Medical Association 760 Riverside Avenue
Jacksonville, Florida 32202 STATEMENT OF THE ISSUES
Whether Proposed Rule 21M-20.15, is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(a)-(e), Florida Statutes?
PRELIMINARY STATEMENT
On January 4, 1991, the Respondent, the Florida Board of Medicine, caused notice of Proposed Rule 21M-20.15 (hereinafter referred to as the "Proposed Rule"), to be published in the Florida Administrative Weekly. On January 25, 1991, the Florida Board of Optometry, the Florida Association of Optometrists, Albert Aran, M.D., Philip Dagostino, O.D., Paul E. Garland, M.D., and John McClane, III, O.D., filed a Petition for Determination of Invalidity of Proposed Rule. The Petition was assigned case number 91-0534RX and was assigned to the undersigned.
The formal hearing was scheduled for February 28, 1991, by Notice of Hearing entered January 31, 1991. On February 11, 1991, a Joint Motion for Continuance was filed. This Motion was granted by order of February 12, 1991. A Second Notice of Hearing rescheduled the formal hearing for May 21-23, 1991. On May 7, 1991, a Consented Motion for Continuance was filed. On May 8, 1991, the requested continuance was granted and the formal hearing was scheduled for June 10-12, 1991. Finally, on May 29, 1991, a third Motion for Continuance was filed. The requested continuance was granted by order of May 30, 1991, and the formal hearing was rescheduled for July 22-24, 1991.
On February 11, 1991, the Respondent filed a Motion to Dismiss seeking dismissal of the Florida Board of Optometry, Philip Dagostino, O.D., and John McClane, III, O.D. On March 25, 1991, an Order Concerning Motion to Dismiss was entered dismissing the Florida Board of Optometry. On April 18, 1991, an Order of Clarification was entered indicating that the Florida Board of Optometry had been dismissed because it lacked standing as a matter of law.
On May 29, 1991, the Petitioners and the Florida Nurses Association filed a Motion to File Amended Petition and an Amended Petition for Determination of Invalidity of Proposed Rule. By order entered June 12, 1991, the Motion to Amend was denied.
On May 6, 1991, the Florida Medical Association and Waite S. Kirkconnell,
(hereinafter jointly referred to as the "Respondent/Intervenors"), filed a Petition for Leave to Intervene in support of the Respondent. On May 9, 1991, the Respondent/Intervenors' Petition for Leave to Intervene was granted.
On May 13, 1991, the Florida Nurses Association filed Florida Nurses Association's Petition to Intervene in support of the Petitioners. On May 16, 1991, the Florida Nurses Association's Petition to Intervene was granted.
On July 15, 1991, the Florida Department of Corrections filed Florida Department of Corrections' Petition to Intervene in support of the Petitioners. The Department of Corrections' Petition to Intervene was granted by order entered July 19, 1991. (The Florida Nurses Association and the Florida Department of Corrections will hereinafter be referred to jointly as the "Petitioner/Intervenors").
Prior to the formal hearing of this case the Petitioners and the Petitioner/Intervenors filed Petitioners' and Petitioner/Intervenors' Prehearing Statement. The Respondent and Respondent/Intervenors filed a Prehearing Stipulation. To the extent that the parties stipulated to facts or law, those stipulations have been included in this Final Order, infra.
At the formal hearing the Petitioners presented the testimony of Daniel J. Sullivan (accepted as an expert in health care planning, health care finance and health care economics), Fuad Ashkar, Luis H. Serentill, Waite Scott Kirkconnell, Ronald Stephen Everett (accepted as an expert in medicare policy), Ronald R. Foreman, Howard Joel Braverman, John W. McClane, III, Philip A. Dagostino and Peter D. Liane. No witnesses were separately called by the Petitioner/Intervenors. The Petitioners and Petitioner/Intervenors offered fifty-one exhibits, including the deposition testimony of several individuals.
These exhibits were identified as "Petitioner/Intervenors' exhibits 1-21 and 23- 52" and were accepted into evidence. The Petitioners also offered deposition testimony of Emilio Echevarria which was accepted into evidence as Joint exhibit 1.
The Respondent presented the testimony of George Slade, who was accepted as an expert in medicine and neurology. The Respondent also relied on Joint exhibit 1, the deposition testimony of Emilio Echevarria. The Respondent offered one exhibit which was accepted into evidence.
The Respondent/Intervenors presented the testimony of Waite S. Kirkconnell and Henry Ring. Henry Ring was accepted as an expert in opthalmology and surgery of the eye. The Respondent/Intervenors also offered the deposition testimony of Robert Reinecke and George Stern. Finally, the Respondent/Intervenors offered seven exhibits which were accepted into evidence.
Most of the individuals whose testimony was presented by deposition were proffered as experts. The proffers are hereby accepted.
The parties have filed proposed recommended 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
The Parties and Their Standing.
The Petitioners.
The Florida Optometric Association (hereinafter referred to as the "FOA"), is a Florida not-for-profit corporation.
The FOA's membership consists of approximately 800 optometrists licensed in Florida under Chapters 455 and 463, Florida Statutes. FOA's members are licensed by the Florida Board of Optometry.
Approximately 650 of FOA's 800 members are certified to administer and prescribe topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions of the human eye and its appendages.
FOA's objective is to promote and protect the interest of optometrists by ensuring the availability of high quality eye care at an affordable price. The FOA represents its members in administrative proceedings, legislative activities and court litigation.
Albert Aran and Paul Garland are medical doctors licensed in Florida pursuant to Chapters 455 and 458, Florida Statutes. They perform cataract surgery in Miami, Florida, and Tallahassee, Florida, respectively.
Philip Dagostino and John McClane, III, are optometrists licensed in Florida pursuant to Chapters 455 and 463, Florida Statutes.
Dr. Dagostino practices optometry in Madison, Florida, where he provides pre-operative and postoperative care to cataract surgery patients. Dr. Dagostino "co-manages" approximately 30-40 patients each month with Michael L. Haney, an ophthalmic surgeon.
Dr. McClane practices optometry in Fernandina Beach, Florida. Dr. McClane "co-manages" cataract patients with several ophthalmologists.
Optometrists licensed in Florida are not regulated by or subject to discipline by the Respondent. They are also not subject to the Respondent's rules.
The weight of the evidence failed to prove that the Proposed Rule will cause FOA members, including Dr. Dagostino and Dr. McClane, to be adversely affected economically or in any other substantial manner.
FOA, Dr. Dagostino and Dr. McClane have failed to prove that they have standing in this proceeding.
The parties stipulated that Dr. Aran and Dr. Garland having standing to institute this proceeding.
The Petitioner/Intervenors.
The Florida Nurses Association (hereinafter referred to as the "FNA"), is a Florida not-for-profit corporation with over 7,000 registered nurses as members.
At least 80% of the FNA's members are actively involved in the provision of patient care activities; including those pre-operative and postoperative care activities that are within the scope of their practice under the Nurse Practice Act, Chapter 464, Florida Statutes.
FNA regularly represents its members in lobbying, administrative matters and litigation.
FNA's members are licensed to practice nursing pursuant to Chapters
455 and 464, Florida Statutes. FNA's members include registered nurses, licensed practical nurses and advanced registered nurse practitioners.
FNA members do not engage in the practice of medicine pursuant to Chapter 458, Florida Statutes, and are not subject to regulation or discipline by the Respondent.
The Proposed Rule does not regulate the conduct of FNA members.
The weight of the evidence failed to prove that the Proposed Rule will cause FNA members to be adversely affected economically or in any other substantial manner.
FNA failed to prove that it has standing to participate in this proceeding.
The Florida Department of Corrections (hereinafter referred as "Corrections"), is an agency of the State of Florida, responsible for maintaining Florida state correctional institutions.
Corrections is responsible for the health care of approximately 100,000 inmates. Corrections employs approximately 2,000 full-time health care professionals to carry out this responsibility. Each year there are approximately 4 million health care contacts between inmates and Corrections' personnel.
Surgery is performed on some inmates for whom Corrections is responsible. Corrections has no surgeons of its staff, however. Most inmate surgery is performed at various independent hospitals. If the surgery is elective, it is normally performed pursuant to a contract with an independent hospital. If the surgery is emergency, it is normally performed at the closest hospital with capacity for handling the required surgery. The provision of surgical care places an economic burden on Corrections. It also creates a security problem for Corrections because of the need to transport inmates outside of the prison.
Once the need for an inmate who has had surgery to stay in the hospital passes, the inmate is returned to Corrections for the remainder of the inmates postoperative care. Once an inmate leaves a hospital after surgical care Correction's personnel provide the immediate care.
Corrections believes that the Proposed Rule will impact its ability to provide care to inmates who have undergone surgery because the Proposed Rule requires that "post-operative care be under the direct supervision of the operating surgeon or an equivalently trained physician or a physician who is in a surgical residency." [Emphasis added]. Lines 15-18, page 12, P/I #21. Based upon this assumption, Corrections presented evidence to prove that such a
requirement in the Proposed Rule will result in increased costs and security problems for Corrections.
The assumption upon which the injury which Corrections believes it will suffer is based is not supported by the weight of the evidence. Although the term "direct" was included as a modifier of the requirement that patients be supervised by the operating surgeon in an earlier version of the Proposed Rule, the Proposed Rule does not require direct supervision.
Corrections failed to prove that, based upon the interpretation of the requirement of "supervision" of the Proposed Rule discussed, infra, it is currently providing pre-operative or postoperative care to inmates in a manner inconsistent with the requirements of the Proposed Rule. Therefore, Corrections failed to prove it will suffer additional costs or security problems in order to comply with the Proposed Rule.
Corrections failed to prove that it has standing to participate in this proceeding.
The Respondent.
The Respondent, the Florida Board of Medicine, is an agency of the State of Florida and is responsible for the licensure, regulation, and discipline of medical doctors pursuant to Chapters 455 and 458, Florida Statutes. The Respondent's members who participated in adopting the Proposed Rule included an orthopedic surgeon, two general surgeons, other physicians and lay members.
The Respondent/Intervenors.
The Florida Medical Association (hereinafter individually referred to as the "FMA"), is a Florida not-for-profit corporation.
The FMA's membership consists of approximately 17,000 Florida-licensed physicians dedicated to promoting the science and art of medicine. The FMA's membership is licensed pursuant to Chapters 455 and 458, Florida Statutes.
Approximately 4,100 of the FMA's members are surgical specialists practicing in Florida.
Waite S. Kirkconnell is a medical doctor licensed in Florida pursuant to Chapters 455 and 458, Florida Statutes. Dr. Kirkconnell performs ophthalmic surgery in Tampa, Florida.
The Respondent/Intervenors have standing to participate in this proceeding.
The History of the Adoption of the Proposed Rule.
In late 1987, an amendment to Rule 21-18.002, Florida Administrative Code, the Formulary of Topical Ocular Pharmaceutical Agents for Optometrists, was promulgated by the Department of Professional Regulation.
In a letter dated November 12, 1987, Michael R. Redmond, then President of the Florida Society of Opthalmology (hereinafter referred to as the "FSO"), expressed concern to the Respondent on behalf of the FSO over the
amendment to Rule 21-18.002, Florida Administrative Code. In the November 12, 1987, letter, Dr. Redmond stated, in part:
When this rule amendment is adopted, the post- surgical follow-up care of patients seen by some Florida physicians may be provided by improper delegation of medical follow-up responsibilities to certified optometrists who may attempt to utilize the medications listed in the rule amendment for that purpose.
The rule amendment does not prohibit the optometric use of these powerful medications in post-surgical follow-up care, and not even during the most critical treatment stages following surgery which ought to be the professional province of the surgeon. We are very concerned that the Department will soon adopt the rule amendment without input from the state board having the most expertise in medical/surgical matters.
Dr. Redmond's November 12, 1987, letter was considered at a meeting of the Respondent on November 22, 1987.
In response to FSO's request, the Respondent voted to request that the Department of Professional Regulation withdraw the amendment to Rule 21-18.002, Florida Administrative Code.
Based upon the concerns raised in Dr. Redmond's November 12, 1987, letter over the delegation of postoperative care of surgery patients by ophthalmologists to optometrists, the Respondent established an Ad Hoc Committee on Ophthalmology (hereinafter referred to as the "Ad Hoc Committee").
The Ad Hoc Committee was formed by the Respondent to "study the impact of the proposed rule amendment as it pertains to the quality of medical eye care in Florida, as well as the issue of post-surgical follow-up care of ophthalmic patients." P/I 2, Tab 163.
The Ad Hoc Committee consisted of two members of the Respondent, Kathryn Stuart, M.D., an internist, and George Slade, M.D., a neurologist.
The Ad Hoc Committee first met on February 5, 1988. It also met on March 15, 1988 (this meeting was rescheduled), and July 15, 1988. The Ad Hoc Committee heard comments, and received and reviewed materials from various groups interested in the issues being considered by the Ad Hoc Committee. Based upon these comments and materials, the Ad Hoc Committee concluded that there was a potential threat to public health and safety from problems related to ophthalmic surgery. In particular, the Ad Hoc Committee was concerned that surgeons performing cataract surgery were improperly delegating pre-operative and postoperative responsibilities for a patient's care of the surgeon to optometrists without proper supervision.
A number of issues were considered by the Ad Hoc Committee. Many of those issues were not resolved by the Ad Hoc Committee or the Respondent. For example, the issues of whether cataract surgery was being performed too often and whether there was any danger in splitting of fees were raised but were not resolved.
Despite the fact that the issue of whether the proper standard of care for surgery was being followed by surgeons in Florida initially arose in the context of the relationship of ophthalmologists and optometrists, the Ad Hoc Committee, and ultimately the Respondent, decided that the issue of the appropriate pre-operative and postoperative standard of care for surgery was an issue that involved all surgeons and not just ophthalmologists.
The Ad Hoc Committee reported its findings to the Respondent on October 7, 1988. The Respondent, after discussion of the Ad Hoc Committee's findings, directed the Ad Hoc Committee to develop a proposed rule setting out the existing standard of care in Florida for surgery.
In December, 1988, and April, 1989, the Respondent considered language which eventually was adopted, after further study and modification, as the Proposed Rule.
On June 4, 1989, the Respondent heard public comment on the fiscal impact of a draft of the Proposed Rule. Comments were made by the FNA and the Florida Association of Nurse Anesthetists. Written comments were also considered. At the conclusion of this meeting the Ad Hoc Committee was renamed the Surgical Care Committee. J. Lee Dockery, M.D., a surgeon and member of the Respondent, was added to the Surgical Care Committee. The Surgical Care Committee was directed to give further consideration to the draft of the Proposed Rule.
On May 15, 1990, June 1, 1990, November 6, 1990, and November 29, 1990, the Surgical Care Committee met. Additional comments concerning the draft of the Proposed Rule were heard by the Surgical Care Committee.
Comments were made before the Surgical Care Committee by the Florida Association of Nurse Anesthetists, the FOA, the Florida Board of Nursing, the American College of Surgeons, the Florida Chapter of the American College of Surgeons, the FMA, individual optometrists, advanced registered nurse practitioners, physician assistants, anesthesiologists, hospital personnel, individual physicians and other health care interests.
Throughout the process of considering and adopting the Proposed Rule, various modifications were made to the drafts of the Proposed Rule to correct problems with the various drafts which were pointed out by various individuals. For example, subparagraph (4) of the Proposed Rule was added as a result of comments from anesthesiologists.
Throughout the process of considering and adopting the Proposed Rule, the FOA and the Board of Optometry were given an opportunity to present information to the Respondent concerning the Proposed Rule. The Board of Optometry regulates the practice of optometry in the State of Florida. Among other things, the Board of Optometry provided a resolution to the Respondent on October 1, 1990, which stated that the provision of postoperative care in Florida is within the scope of the practice of optometry, and that optometrists are qualified by training, education and experience to provide postoperative care.
Throughout the process of developing the Proposed Rule, legal counsel for the Respondent, M. Catherine Lannon, advised and reminded the Respondent that the Respondent could draft a rule which incorporated the prevailing standards of pre-operative and postoperative care in Florida but that the
Respondent could not establish or create such a standard. Although comments made by various members of the Respondent at various times during the three years it took to draft the Proposed Rule, if considered alone, could lead to the conclusion that some members of the Respondent would have preferred to have established a standard of care consistent with their beliefs, the weight of the evidence failed to prove that the Respondent intended to, and actually did, create a standard of care in promulgating the Proposed Rule.
Although many things were said by members of the Respondent and others during the three-year period the Proposed Rule was considered, ultimately the Respondent's primary concern was the public safety while accommodating the interests of all concerned.
Based upon the testimony and evidence presented to the Ad Hoc Committee, the Surgical Care Committee and the Respondent, the Respondent ultimately determined that there was a commonly-accepted standard of care in Florida concerning a surgeon's pre-operative and postoperative care responsibilities. The Respondent attempted to express that standard of care in the Proposed Rule to put physicians on notice of, and to remind them of, that existing standard of care.
The Proposed Rule.
The Proposed Rule was published in the Florida Administrative Weekly on January 4, 1991.
The Proposed Rule provides the following: 21M-20.015 Standards of Practice. The
Board of Medicine interprets the standard of
care requirement of Section 458.331(1)(t), Florida Statutes, and the delegation of duties restrictions of Section 458.331(1)(w), Florida Statutes, with regard to surgery as follows:
The ultimate responsibility for diagnosing medical and surgical problems is that of the licensed doctor of medicine or osteopathy who is to perform the surgery. In addition, it is the responsibility of the operating surgeon or an equivalently trained doctor of medicine or osteopathy or a physician practicing within a Board approved postgraduate training program to explain the procedure to and obtain the informed consent of the patient. It is not necessary, however, that the operating surgeon obtain or witness the signature of the patient on the written form evidencing informed consent.
Management of postsurgical care is the responsibility of the operating surgeon.
The operating surgeon can delegate discretionary postoperative activities to equivalently trained licensed doctors of medicine or osteopathy or to physicians practicing within Board approved postgraduate training programs. Delegation to any health
care practitioner is permitted only if the other practitioner is supervised by the operating surgeon or an equivalently trained licensed doctor of medicine or osteopathy or a physician practicing within a Board approved postgraduate training program. The operating surgeon remains responsible for all treatment activities.
The rule shall have no application to anesthesia-related activities performed in accordance with Florida law.
The Proposed Rule only applies to physicians. It does not purport to regulate or otherwise apply to optometrists, nurses or any other health care professionals.
Rulemaking Authority for, and Laws Implemented by, the Proposed Rule.
Rulemaking Authority for the Proposed Rule.
The specific authority cited by the Respondent for the Proposed Rule is Section 458.309, Florida Statutes.
Rules adopted pursuant to Section 458.309, Florida Statutes, must be consistent with existing law, necessary to carry out the Respondent's duties and authority and necessary to protect the health, safety, and welfare of the public.
The weight of the evidence failed to prove that the Respondent acted unreasonably in relying upon the information it considered in carrying out its quasi-legislative function of adopting the Proposed Rule. During the more than three years that the Respondent considered the Proposed Rule, the Respondent was presented with information which were reasonably relied upon by the Respondent in concluding that it was necessary to remind surgeons in Florida of the basic standard of care required for surgery patients. Based upon the information provided to the Respondent, it was reasonable for the Respondent to conclude that not all surgeons in Florida were following the standard of care for surgery patients prevailing in Florida.
Not all of the information relied upon by the Respondent in adopting the Proposed Rule was proved during the formal hearing of this matter. More importantly, however, the weight of the evidence failed to prove that there is no potential problem with the provision of surgical care in Florida:
There have been cases brought before probable cause panels of the Respondent relating to improper supervision of delegated surgical care. None of those cases, however, have resulted in any complaint being issued against an opthalmologist.
There have also been cases of inadequate pre-operative and postoperative care in other medical specialties such as surgical abortion, cardio-pulmonary surgery and peripatetic surgery.
Harm to surgery patients can occur because of the confusion of the public about the difference in professional qualifications of ophthalmologist and optometrists.
Harm may also occur to surgery patients through neglect or the overlooking of responsibility which may occur through co-management because of the confusion as to whether the opthalmologist or optometrists is responsible.
The Respondent's conclusion that there was a potential problem with the provision of surgical care in Florida was reasonable. The Respondent reasonably concluded that surgeons should be reminded of their responsibility.
The weight of the evidence failed to prove that the Proposed Rule is inconsistent with existing laws, not necessary to carry out the Respondent's duties and authority or not necessary to protect the health, safety, and welfare of the public.
Laws Implemented by the Proposed Rule.
Initially, the Respondent intended to base its authority for adopting the Proposed Rule on Section 458.331(1)(t), Florida Statutes. Counsel for the Respondent recommended, however, that the Respondent also base its decision to adopt the Proposed Rule on Section 458.331(1)(w), Florida Statutes. The Respondent agreed.
Ultimately, the Respondent adopted the Proposed Rule to implement Sections 458.331(1)(t) and (w), Florida Statutes.
Meaning of Certain Terms Used in the Proposed Rule.
"Equivalently Trained Doctor of Medicine or Osteopathy".
The terms "equivalently trained doctor of medicine or osteopathy" (hereinafter referred to as "Equivalently Trained Physician") and "equivalently trained licensed doctor of medicine or osteopathy" were intended by the Respondent to mean similar, but not necessarily identical, medical training.
There were various explanations given during this proceeding of what the terms "equivalently trained" mean. Based upon the weight of the evidence and considering all of the testimony, surgeons understand that these terms mean any physician who could stand in the shoes of the operating surgeon; any other surgeon that could have performed the surgery. Surgeons subject to the Proposed Rule know when another surgeon would be qualified to perform similar surgical functions to those the operating surgeon may perform on their patients.
The weight of the evidence failed to prove that the terms "equivalently trained" are vague.
"Physician Practicing Within a Board Approved Postgraduate Training Program".
The terms "physician practicing within a Board approved postgraduate training program" (hereinafter referred to as "Resident") were intended by the Respondent to mean a "resident" in a medical school training program approved by the American Board of Medical Specialists.
The weight of the evidence failed to prove that these terms are not understood by the medical profession or that they are vague.
"Management of Postsurgical Care".
The terms "[m]anagement of postsurgical care" were intended by the Respondent to mean the administration and supervision of surgical patients' recovery during the postoperative period. These terms mean providing the care necessitated by the surgical procedure a patient is subjected to. Management of postsurgical care requires detection, diagnosis and treatment of complications that may result from surgery and taking all the medical steps necessary to insure the recovered health of the patient.
"Management of postsurgical care" does not preclude, as argued by the Petitioners, health care practitioners from involvement with the operating surgeon in providing postoperative care.
The terms "[m]anagement of postsurgical care" are commonly understood in the medical community. The weight of the evidence failed to prove that the terms "[m]anagement of postsurgical care" are vague.
"Supervision".
The term "supervision" is commonly understood in the medical community. The understanding of the meaning of this term essentially comports with the definition of "supervision" contained in a dictionary: to "oversee" (inspect or examine) or "a critical watching or directing". See the definitions of "supervision" and "supervise" in Webster's Ninth New Collegiate Dictionary, 1984.
It is difficult to give a precise explanation of what exactly is necessary in order to be considered "supervision" in the context of providing care to a surgery patient. Based upon the testimony of most, if not all, of the health care practitioners in this proceeding, all agreed that once a surgeon operates on a patient: (a) that patient's recovery from the surgery is the responsibility of the operating surgeon; (b) a wide variety of health care practitioners are usually involved in the surgery and the pre-operative and postoperative care of the patient; and, (c) the operating surgeon must "oversee" the postoperative care provided to his or her patient. The testimony of the health care practitioners in this proceeding also proved that the degree of supervision by a surgeon which may be required varies widely depending upon many factors which the surgeon must consider, including the training and experience of the health care practitioner and the professional relationship that has developed between the surgeon and the health care practitioner.
The testimony of the health care practitioners (i.e., general physicians, surgeons, optometrists and nurses) who testified in this proceeding supports a conclusion that, in the context of a patient receiving postoperative care, the health care practitioners who assist the operating surgeon in the care of a surgery patient are supervised. All of the health care practitioners who testified in this proceeding indicated that the health care practitioners who work with an operating surgeon report on a regular basis to the surgeon and that they look to the operating surgeon when the care needed by a surgery patient exceeds the care they are authorized or trained to provide. These acts are part of proper supervision.
There was testimony from some optometrists that they are not "supervised" when they provide postoperative care to surgery patients. Such testimony may be attributed to the fact that some of the functions an optometrist is authorized to carry out based upon training and legal
authorization do not specifically require supervision for patients who have not undergone surgery. The testimony may also be attributable to the fact that optometrists are not required to be supervised by their licensing board. But in the context of a patient who has undergone surgery, the ability of any health care practitioner to provide care, whether it be a physician, a nurse or an optometrist, must be considered in the context of the operating surgeon's ultimate responsibility to his or her patient. This fact was recognized by the optometrists who testified that they are not "supervised" based upon the description of the actual relationship they have with the surgeon in providing postoperative care. Based upon their description of their relationship with the surgeon and the manner in which they carry out their provision of care to surgery patients, the relationship and their activities fall within the accepted medical community definition of "supervision."
The term "supervision" is included and defined in other provisions of law of the Respondent, as well as in the provisions of other boards.
Various witnesses attempted to define the term "supervision." The variations in explanations merely proved the difficulty in articulating a more precise definition of the role between the operating surgeon and others who assist the surgeon that are involved in the care provided to a patient postoperatively. The variations in attempts to define the term are indicative that there are various degrees of supervision which may be necessary for any given patient depending on a variety of factors which the operating surgeon and the health care practitioners who assist him or her must take into account.
The difficulty in precisely articulating what "supervision" means does not support a conclusion that the term is vague.
The weight of the evidence failed to prove that the term "supervision" is vague.
"Discretionary Postoperative Activities".
The terms "discretionary postoperative activities" mean the care provided postoperatively for which the operating surgeon must exercise professional judgment. These terms are commonly understood in the medical community.
The weight of the evidence failed to prove that the terms "discretionary postoperative activities" are vague.
"Treatment Activities".
The terms "treatment activities" mean the activities necessary for the care and recovery of a surgery patient. These terms are commonly understood in the medical community.
The weight of the evidence failed to prove that the terms "treatment activities" are vague.
The Last Sentence of Proposed Rule 21M-20.15(3)
The last sentence of Proposed Rule 21M-20.15(3), provides, after setting out the standard for the delegation of postoperative care that "[t]he operating surgeon remains responsible for all treatment activities."
It was suggested that the last sentence of Proposed Rule 21M-20.15(3), is merely a restatement of Proposed Rule 21M-20.15(2). This explanation is not supported by the terms of the Proposed Rule.
It is not clear what the last sentence of Proposed Rule 21M-20.15(3), means in the context of the entire subsection (3). It is, therefore, vague.
Co-Management.
Surgeons "co-manage" the postoperative care of their patients with a wide variety of health care practitioners, including, but not limited to, optometrists, nurses, physical therapists, and family physicians.
Co-management includes the delegation of discretionary and non- discretionary postoperative activities to health care practitioners who are not Equivalently Trained Physicians or Residents.
Co-management is commonly used in Florida. Co-management has been in existence for approximately ten years. Co-management with optometrists has increased in recent years.
Co-management, if properly performed, is not inconsistent with the requirements of Sections 458.331(1)(t) and (w), Florida Statutes.
Although co-management includes the delegation of discretionary postoperative activities by a surgeon to health care practitioners, such delegation in the context of a patient who has undergone surgery, at least in Florida, may not be done without supervision. See findings of fact 74-81. See also the comments of counsel for the Petitioners to the Respondent, Petitioner/Intervenors' exhibit 1(j), pages 37-38.
The extent of supervision necessary in a situation where a surgery patient is considered to be "co-managed" should be determined in the same manner that the degree of supervision required of any health care practitioner is determined. It is based upon the surgeon's knowledge and opinion of the health care practitioner and the health care practitioner's qualifications by training, experience, or licensure to provide some of the care required for the postoperative recovery of a patient.
The Respondent did not intend to prohibit "co-management", as described, supra, of surgical patients. Nor does the language of the Proposed Rule prevent "co-management".
The use of co-management has been recognized in federal medicare reimbursement provisions which allow an opthalmologist who has delegated postoperative care activities to an optometrists to use a procedure of billing which splits the medicare fee between the ophthalmologist and the optometrist. The total fee, referred to as a "global fee", is divided 90% to the ophthalmologist and 10% to the optometrist if they indicate in their billing that the global fee is to be split.
The manner in which the global fee is split is followed regardless of the amount of postoperative care an optometrist may give or the lack of involvement the ophthalmologist may have in the provision of postoperative care. Splitting of the global fee has nothing to do with the proper Standard of Care for surgery patients in Florida. There is, therefore, a potential for opthalmologist to not fulfill their responsibility to their surgery patients.
This finding of fact is not meant to suggest that opthalmologist or optometrists in general are not fulfilling their responsibilities to their patients. The weight of the evidence did not prove this to be true. The evidence did prove, however, that there is a possibility of, and some actual, abuse which the Respondent could reasonably address by rule.
Postoperative care of ophthalmic surgery patients requires medical judgments and may require modifications in treatment.
While some of the postoperative care of ophthalmic surgery patients may be routine, there may also be complex care which only the surgeon should provide. Only the opthalmologist who performs the surgery has the training and experience and licensure required to provide all of the possible aspects of a surgical patient's postoperative care.
Optometrists do not have the training and experience nor the licensure necessary to provide all of the possible aspects of a surgical patient's postoperative care. The same is true of nurses.
The Standard of Care for the Care of Surgery Patients in Florida.
General.
The Respondent may establish by rule more specific guidance as to what constitutes a standard of care in Florida pursuant to Section 458.331(1)(t) and (w), Florida Statutes. Based upon the following findings of fact, the evidence failed to prove that the Proposed Rule is inconsistent with these statutory provisions.
Pursuant to Section 458.331(1)(t), Florida Statutes, a physician may be disciplined if he or she fails to "practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances" (hereinafter referred to as the "Standard of Care").
It is a well-established medical principle that an operating surgeon is responsible for the actual surgery and the pre-operative and postoperative care of the surgeon's own surgical patients.
The weight of the evidence failed to prove that the Proposed Rule is an invalid exercise of delegated legislative authority because the Proposed Rule allows an Equivalently Trained Physician or Resident to perform any of the functions required of a surgeon.
The Standard of Care for Pre-Operative Care.
The requirement of Proposed Rule 21M-20.015(1), that "[t]he ultimate responsibility for diagnosing medical and surgical problems is that of the licensed doctor or medicine or osteopathy who is to perform the surgery. . . " is consistent with the Standard of Care for surgeons in Florida.
The Standard of Care for a surgeon with regard to his or her pre- operative care of a patient includes, as a minimum, the responsibility to diagnose the patient to determine whether the patient requires surgery and, if so, the surgery necessary. This Standard of Care prevents a surgeon from abandoning a surgical patient before recovery is complete. The requirement of
Proposed Rule 21M-20.015(1) that " . . . it is the responsibility of the operating surgeon . . . to explain the procedure to and obtain the informed consent of the patient. . ." is consistent with this Standard of Care.
The Standard of Care for a surgeon with regard to his or her pre- operative care of a patient does not require that the surgeon actually obtain or witness the patient's signature on a form consenting to the surgical procedure. The requirement of Proposed Rule 21M-20.015(1) that "[i]t is not necessary, however, that the operating surgeon obtain or witness the signature of the patient on the written form evidencing informed consent. . . " is consistent with this Standard of Care.
The Standard of Care for Postoperative Care.
The Standard of Care for a surgeon with regard to his or her postoperative responsibility to a surgery patient requires that the surgeon's obligation for the patient extend beyond the surgical procedure until the postoperative convalescence is completed. The requirement of Proposed Rule 21M- 20.015(2), that "[m]anagement of postsurgical care is the responsibility of the operating surgeon. . . " is consistent with this Standard of Care.
The requirement that "[m]anagement of postsurgical care is the responsibility of the operating surgeon . . . " does not mean that a surgeon cannot allow other health care professionals to provide some of the care of the surgeon's patients.
The Standard of Care expressed in Proposed Rule 21M-20.015(2), concerning the management of postoperative care is similar to pronoucements of the American College of Surgeons, the American Academy of Ophthalmology and other state boards of medicine.
The Standard of Care for the Delegation of Postoperative Care.
Proposed Rule 21M-20.015(3) provides the circumstances under which a surgeon may delegate postoperative care to other health care practitioners. First, it is provided that "discretionary postoperative activities" may be delegated to an Equivalently Trained Physician or a Resident. The operating surgeon need not supervise the Equivalently Trained Physician or the Resident. The weight of the evidence failed to prove that this portion of the Proposed Rule is not the recognized Standard of Care in Florida.
Residents are under the direct and continual supervision of a physician qualified to perform postoperative duties. Allowing the delegation of discretionary postoperative activities to Residents is consistent with the recognized Standard of Care in Florida.
Proposed Rule 21M-20.015(3), also provides that postoperative activities may be delegated to health care practitioners other than an Equivalently Trained Physician or Resident "if the other practitioner is supervised by the operating surgeon or . . . " an Equivalently Trained Physician or Resident. This type delegation requires supervision of postoperative activities a surgeon allows health care practitioners other than an Equivalently Trained Physician or Resident to perform.
Supervision of health care practitioners to whom postoperative activities are delegated is required in the context of a patient who has
undergone surgery, because health care practitioners are not trained to perform those duties in the context of surgery to the same extent that the operating surgeon or an Equivalently Trained Physician are trained.
The final portion of Proposed Rule 21M-20.015(3) provides that "[t]he operating surgeon remains responsible for all treatment activities." As discussed, infra, this portion of the Proposed Rule is vague. It is not possible, therefore, to determine whether this portion of the Proposed Rule constitutes the expression of a Standard of Care.
Delegation of Responsibilities to Persons Who Are Not Qualified by Training, Experience, or Licensure to Perform Them.
Section 458.331(1)(w), Florida Statutes, prohibits the delegation of professional responsibilities to any person when the physician "knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them."
Optometrists, nurses, and other health care practitioners are qualified by training, experience and licensure to perform a number of the tasks required of postoperative patients.
An optometrist may be able, because of training, experience and licensure, to diagnose complications which may arise after cataract surgery, to treat those complications and to decide when a complication is beyond the scope of his or her training, experience or licensure.
Pursuant to Section 463.0135(1), Florida Statutes, an optometrist licensed in Florida is held to essentially the same standard of care as a medical or osteopathic physician.
Minimum procedures for optometric vision analysis have been established in Rule 21Q-3.007, Florida Administrative Code. This Rule sets out some of the procedures necessary for a postoperative examination of a cataract patient.
The Formulary for optometrists includes some of the drugs which may be necessary to treat a cataract patient after cataract surgery.
Among the required postoperative treatments necessary for a cataract patient is a good optometric examination, similar to the examination performed in optometric practice.
Despite the foregoing facts concerning the training, experience and licensure of optometrists, optometrists are not qualified by training, experience or licensure to provide all of the possible needs for postoperative care of a cataract patient or any other patient that has undergone surgery. It is for this reason that any failure of the Respondent to consider the training, experience or licensure of optometrists in developing the Proposed Rule is irrelevant.
Postoperative care of a cataract patient requires not only the performance of a standard examination but also requires the use of diagnostic and therapeutic procedures, and the exercise of medical judgments and adjustments in patient care and management that only the operating surgeon (or some other physician with similar training and experience) can provide.
There are some drugs which may be necessary in the care of a cataract patient which an optometrists may not provide. There are also some postoperative systemic problems which an optometrists may not be trained to detect. Inadequate postoperative care can undo a technically good surgical procedure.
Once a patient enters the realm of surgery, it is the operating surgeon that is required to see the patient from diagnosis through recovery. Therefore, the ability of health care practitioners to provide care to a surgery patient based upon the health care practitioner's training, experience or licensure must be considered in this context. Consequently, although an optometrist may be qualified by training, experience or licensure to perform a particular function without any supervision on a patient who has not undergone surgery, once that patient is operated on, the optometrists' training, experience and licensure are not sufficient to allow the performance of postoperative activities without supervision. When the Proposed Rule is considered in this context, it is not inconsistent with Section 458.331(1)(w), Florida Statutes.
Anesthesia Activities.
Anesthesia activities during surgery are considered ancillary to the surgical process. They generally do not require postoperative follow-up.
The Respondent, in adopting the Proposed Rule, did not intend to make any pronouncement concerning the existing Standard of Care for anesthesia- related activities.
The weight of the evidence failed to prove that Proposed Rule 21M- 20.015(4), is inconsistent with Section 458.331(1)(t) or (w), Florida Statutes.
The Economic Impact Statement.
As required by Section 120.54(2), Florida Statutes, the Respondent prepared an economic impact statement (hereinafter referred to as the "EIS") for the Proposed Rule.
The Respondent, while considering more restrictive versions of the Proposed Rule, sought (upon a recommendation of legal counsel) and considered a proposal from the Center for Health Policy Research at the University of Florida for a formal economic analysis of a draft of the Proposed Rule.
The estimated cost of the formal economic analysis was more than
$100,000.00 and would have required more than a year to prepare. The Respondent was also informed that there was a lack of empirical data which could be used for the analysis.
The Respondent reasonably concluded that the formal economic analysis suggested by the Center for Health Policy Research was not necessary. This conclusion was based upon the fact that the Proposed Rule only sets out the basic Standard of Care already existing in Florida and it only applies to physicians. Therefore, to the extent that any physician has to modify his or her practice of medicine as a result of the Proposed Rule, it would be because that physician is not following the Standard of Care that he or she should already be following.
As an alternative to a formal economic analysis, the Respondent scheduled a public hearing to give interested groups an opportunity to present testimony regarding economic impact. Notice of the hearing was provided to the groups which had been participating in the rule-making process and several groups presented testimony which the Respondent considered.
Among the statements included in the EIS is the following:
While ophthalmologists who now delegate postoperative care to non-physicians would be required to provide all the care and, presumably, bill for the entire fee, their individual incomes may not be significantly affected since this change of practice pattern may reduce the volume and such reduced volume would balance out the increases in individual case billings.
This statement is incorrect and inconsistent with the requirements of the Proposed Rules.
The EIS also included the following statement concerning the expected impact of the Proposed Rule on persons directly affected by the Proposed Rule:
There should be little cost or economic benefit to persons directly affected by the proposed actions since this rule does interpret the current standard of care. Most
physicians are already practicing in compliance with this interpretation of the state. . . .
The Petitioners and Petitioner/Intervenors suggested that the economic impact on ophthalmologists and optometrists has been significantly understated in the EIS. This conclusion was based upon the Petitioners' and Petitioner/Intervenors' incorrect and restrictive interpretation of the Proposed Rule that co-management is prohibited. It was also based upon the incorrect statement in the EIS concerning the substantive requirements of the Proposed Rule quoted in finding of fact 135.
The weight of the evidence failed to prove that the Petitioners' and Petitioner/Intervenors' interpretation of the Proposed Rule concerning co- management is correct. Therefore, the weight of the evidence failed to support the analysis of the EIS presented by the Petitioners.
The statement of the EIS quoted in finding of fact 136 is consistent with the Proposed Rule. The Proposed Rule only codifies existing Standards of Care in Florida.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54(1), Florida Statutes (1989).
Standing.
General.
Section 120.54(4)(a), Florida Statutes, provides that "[a]ny substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated authority." A person is considered to be "substantially affected" by a rule if it is proved: "1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section
hearing, and 2) that his substantial injury is of a type or nature the proceeding is designed to protect." Florida Society of Ophthalmology v. Board of Optometry, 532 So.2d 1279, 1285 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (1989). See also, Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). The fact that a person may be affected in some way by a rule does not, however, necessarily mean that person has standing to challenge it. See Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988).
The FOA and FNA.
The FOA and FNA are both associations which represent their members. In order for an association to have standing to challenge a rule under Section 120.54, Florida Statutes, the association must prove:
. . . a substantial number of its members, although not necessarily a majority, are substantially affected by the challenged rule;
the subject matter of the proposed rule is within the association's general scope of interest and activity; and
the relief requested is of a type appropriate for a trade association to receive on behalf of its members.
Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753, 754 (Fla. 1st DCA 1982). See also Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).
The FOA, FNA, Philip Dagostino, D.O., and John McClane, III, O.D., have largely based their standing on the argument that they
will be effectively precluded from providing post-surgical care to their patients even though such care is within the scope of the practice of optometry. Opthalmologists will not co-manage with optometrists, because they will not risk discipline by the Board. Thus, the proposed rule substantially affects optometrists' ability to practice their profession.
Page 34, Proposed Final Order of Petitioners and Petitioner/Intervenors. The weight of the evidence failed to support the facts necessary to accept this argument.
The Proposed Rule simply does not apply to optometrists, nurses or any health care practitioners other then those subject to discipline by the Respondent. The Proposed Rule only applies to physicians licensed in Florida who perform surgery. Therefore, the weight of the evidence presented in this case failed to prove that a substantial number of the members of the FOA or the FNA will "otherwise have standing" to institute or participate in this proceeding.
The Petitioners 1/ have argued that the members of one profession should be allowed to challenge the rule of another profession's regulatory board if such a rule prevents or obstructs the practice of the first profession. Although this argument may be correct, the evidence in this case failed to prove that the Proposed Rule is a rule of the Respondent which prevents or obstructs the practice of optometrists, nurses or any other profession not regulated by the Respondent. Therefore, this argument does not support a finding that FOA, FNA or the individual optometrists-petitioners have standing in this case.
It has also been argued that the alleged injury to optometrists is one that is "subject to protection of law." In support of this argument it has been suggested that the Legislature "envisioned that each profession should be able to practice subject to regulation of its own professional board, without interference from other boards." The difficulty with this argument is that the evidence failed to prove that the Respondent has taken any action which violates this legislative intent. Additionally, the Legislature has not evidenced an intent to prohibit any professional board from taking any action with regard to the profession it is responsible for simply because there may be some remote impact on other professions.
Based upon the foregoing, it is concluded that the FOA and the FNA have failed to prove that their members will suffer an injury as a result of the Proposed Rule. Therefore, FOA and FNA have failed to prove that they have standing to institute, or participate in, this proceeding.
Philip Dagostino, O.D., and John McClane, III, O.D.
Based upon the discussion, supra, concerning the lack of an injury to optometrists with regard to the standing of the FOA and the FNA, it is concluded that Philip Dagostino, O.D., and John McClane, III, O.D., failed to prove that they have standing in this proceeding.
Corrections.
It has been suggested that the Proposed Rule will substantially affect Corrections because it is believed that the Proposed Rule will adversely affect how surgical care is provided by Corrections to inmates Corrections is responsible for. The evidence in support of this argument was based upon an assumption that the Proposed Rule requires that postoperative care provided to inmates must be directly supervised by the operating surgeon or an equivalently trained physician or resident. This assumption is incorrect.
Although the Proposed Rule does not apply directly to Corrections or any of its employees (Corrections employs no surgeons), Corrections is required to provide medical care, including surgery, to the inmates under its control. Corrections provides required surgical care through independent hospitals. The provision of surgical care does create an economic burden on Corrections and a security problem for Corrections. Corrections did not present evidence,
however, to prove that it will have to modify the manner in which it provides postoperative care or any other aspect of surgical care to inmates based upon the proper interpretation of the requirements of the Proposed Rule with regard to supervision reached in this Final Order. Therefore, Corrections failed to prove that it will suffer any injury through increased costs or security problems under a proper interpretation of the Proposed Rule.
Based upon the foregoing, it is concluded that Corrections failed to prove that it has standing to participate in this proceeding.
Albert Aran, M.D., Paul E. Garland, M.D., FMA and Waite S. Kirkconnell, M.D.
The Proposed Rule applies to the all physicians licensed in Florida. Based upon this fact and the stipulation of the parties, Albert Aran, M.D., and Paul E. Garland, M.D., have standing to participate in this proceeding.
For the same reason, and based upon the stipulation of the parties, FMA and Waite S. Kirkconnell, M.D., also have standing to participate in this proceeding.
The Burden of Proof.
The burden of proof in this proceeding was on the Petitioners. See Adam Smith Enterprises v. Department of Environmental Regulation, 553 So.2d 1260, (Fla. 1st DCA 1990); and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). In determining whether the Petitioners have met their burden of proof, the general rule that "agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties" has been recognized. See Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).
The Petitioners' Challenge.
Section 120.54, Florida Statutes.
The Petitioners have alleged that the Proposed Rule constitutes an "invalid exercise of delegated legislative authority." What constitutes an "invalid exercise of delegated authority" is defined in Section 120.52(8), Florida Statutes, as follows:
"Invalid exercise of delegated 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 forth 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 vest unbridled discretion in the agency; or
The rule is arbitrary or capricious.
The Petitioners have alleged that the Proposed Rule constitutes an "invalid exercise of delegated authority" in violation of all of the subparagraphs of Section 120.52(8), Florida Statutes.
Section 455.211, Florida Statutes.
The Petitioners have also alleged that the Proposed Rule is invalid based upon Section 455.211, Florida Statutes. Section 455.211, Florida Statutes, provides, in pertinent part:
The secretary of the department shall have standing to challenge nay rule or proposed rule of a board pursuant to ss.
120.54 and 120.56. In addition to challenges for any invalid exercise of delegated legislative authority, the hearing officer, upon such a challenge by the secretary, may declare all or part of a rule or proposed rule invalid if it:
Does not protect the public from any significant and discernible harm or damages;
Unreasonably restricts competition or the availability of professional services in the state or in a significant part of the state; or
Unnecessarily increases the cost of professional services without a corresponding or equivalent public benefit.
. . . . [Emphasis added].
Generally, a Hearing Officer of the Division of Administrative Hearings may only determine whether a proposed rule is invalid pursuant to Section 120.54, Florida Statutes. As explained, supra, the determination to be made pursuant to Section 120.54, Florida Statutes, is whether a proposed rule constitutes an "invalid exercise of delegated legislative authority" as defined in Section 120.52(8), Florida Statutes. Section 455.211, Florida Statutes, authorizes a Hearing Officer to consider additional grounds for declaring a rule invalid. But challenges pursuant to Section 455.211, Florida Statutes, may only be instituted by the secretary of the Department of Professional Regulation. No such challenge has been instituted in this case. Therefore, no consideration of the grounds for declaring a rule invalid provided in Section 455.211, Florida Statutes, may be considered in this case. See Florida Hearing Aid Society v. Department of Professional Regulation, 10 FALR 2167, 2177 (Case No. 87-5580R, March 18, 1988).
Constitutional Issues.
The Petitioners have also alleged that the Proposed Rule arbitrarily and unreasonably interferes with the right of optometrists to practice their profession, a valuable property right, in violation of the due process clause.
The weight of the evidence failed to prove the facts necessary to accept this argument.
The Validity of the Proposed Rule.
Section 120.52(8)(a), Florida Statutes.
The Proposed Rule is an "invalid exercise of delegated legislative authority" if the Respondent "materially failed to follow the applicable rulemaking procedures set forth in s. 120.54". The Petitioners have argued that the Respondent materially failed to follow the rulemaking procedures required by Section 120.54(2), Florida Statutes, in adopting the EIS. The weight of the evidence failed to support such a conclusion.
Section 120.54(2), Florida Statutes, requires that an economic impact statement be prepared as part of the adoption of an agency rule. Section 120.54(2)(d), Florida Statutes, sets for the basis for challenging the adequacy of such an economic impact statement: "[t]he failure to provide an adequate statement of economic impact is a ground for holding the rule invalid."
The Petitioners have alleged that the EIS in this case is inadequate because (a) it is based on the incorrect assumption that the Proposed Rule merely sets forth current practices; (b) it does not adequately consider the impact of the Proposed Rule on the manner in which postoperative care is currently provided to cataract and other surgery patients; and (c) it does not adequately consider the impact of posited changes in current practices that would result once the Proposed Rule is enacted. The weight of the evidence failed to prove these alleged inadequacies.
The primary basis for the Petitioners' challenge to the adequacy of the EIS is the argument that the Proposed Rule will change the existing Standard of Care and, consequently, existing practice patterns; that only the operating surgeon, an Equivalently Trained Physician or a Resident may provide postoperative care under the Proposed Rule. The Petitioners and their economic expert premised their argument concerning the EIS on the assumption that other health care practitioners who are currently participating in postoperative care will be prevented from continuing their participation. The weight of the evidence failed to support these arguments.
The Petitioners have also suggested that the EIS may be inadequate because of the failure of the Respondent to conduct the formal economic study suggested by counsel for the Respondent. In light of the conclusion that the Proposed Rule merely sets out the existing Standard of Care for surgery in Florida, the Respondent's decision not to conduct the expensive and time consuming economic study suggested by the University of Florida was entirely reasonable. See Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983). The Respondent fully considered the effect the Proposed Rule may have on the persons the Proposed Rule may effect without the economic study it considered conducting.
Based upon the foregoing, it is concluded that the weight of the evidence failed to prove that the EIS was inadequate.
Section 120.52(8)(b), Florida Statutes.
The Proposed Rule is an "invalid exercise of delegated legislative authority" if the Respondent "exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7)".
In furtherance of the Legislative goals set out in Chapter 458, Florida Statutes, the Respondent has been authorized to discipline physicians who fall below minimum competency standards or who otherwise present a danger to the public. Section 458.301, Florida Statutes. To carry out this responsibility, the Respondent has been authorized to adopt rules pursuant to Section 458.309, Florida Statutes. Section 458.309, Florida Statutes, is the specific authority cited by the Respondent for the Proposed Rule, and provides, in pertinent part, the following:
The board is authorized to make such rules not inconsistent with law as may be necessary to carry out the duties and authority conferred upon the board by this chapter and as may be necessary to protect
the health, safety, and welfare of the public.
. . . .
As argued by the Petitioners, the Respondent may, under its rule- making authority, only adopt rules which are: (a) consistent with existing law;
(b) necessary to carry out the Respondent's duties and authority under Chapter 458, Florida Statutes; and (c) necessary to protect the health, safety, and welfare of the public. The Petitioners have argued that the Proposed Rule is contrary to all three requirements.
First, the Petitioners have argued that the Proposed Rule is contrary to a number of statutory provisions, including the specific provisions of law the Proposed Rule implements. Whether the Proposed Rule is contrary to the provisions of law it implements is discussed, infra. The following is a discussion of other laws which the Petitioners have argued the Proposed Rule is inconsistent with.
The Petitioners have argued that the Proposed Rule is contrary to Chapter 463, Florida Statutes, because it "imposes supervision requirements on health care practitioners which are not authorized by statute." Page 44 of the Proposed Final Order of Petitioners and Petitioner/Intervenors. In particular, the Petitioners have suggested that the Proposed Rule conflicts with Sections 463.002(5) and 463.005, Florida Statutes, "by improperly interfering with the Board of Optometry's duty to regulate the practice of optometry, and be redefining the scope of the practice of optometry. . . ." Id. The evidence simply failed to support this argument. As already noted, the Proposed Rule only applies to physicians; it has no application to any person regulated under Chapter 463, Florida Statutes, or any other health care practitioners not regulated by the Respondent.
The Petitioners have also argued that the Proposed Rule "expands the malpractice recovery standards and allows the Board to discipline and plaintiffs to sue for malpractice, i.e., abandonment, where the surgeon has properly withdrawn from a patient's case or the physician/patient relationship has been properly severed. In this respect, the proposed rule contravenes, enlarges, and modifies existing law." Page 48 of the Proposed Final Order of the Petitioners and Petitioner/Intervenors. It is not clear whether the Petitioners are suggesting that this argument supports a conclusion that the Proposed Rule is invalid under Section 120.52(8)(a) or (c), Florida Statutes. The argument is
rejected regardless of which subsection the Petitioners believe the argument supports because the evidence failed to prove the facts necessary to support this argument.
The Petitioners have also argued that the Proposed Rule unreasonably restricts competition and the availability of professional services in a significant part of the State, especially rural areas. The Petitioners suggest that this unreasonably restriction of competition "contravenes the spirit if not the letter of the Florida Antitrust Act of 1980, Section 542.15, et. seq., Florida Statutes . . . ." The weight of the evidence failed to support these arguments.
Based upon the foregoing, it is concluded that the Petitioners have failed to prove that the Proposed Rule is inconsistent with law.
Secondly, the Petitioners have argued that the Proposed Rule is not necessary to carry out the duties and authority conferred upon the Respondent. The Respondent has the authority to discipline physicians who violate various provisions of law, including Sections 458.331(1)(t) and (w), Florida Statutes. It is, therefore, reasonable for the Respondent to adopt rules which provide guidance as to what constitutes a violation of Sections 458.331(1)(t) and (w), Florida Statutes. That is what the Respondent has done in promulgating the Proposed Rule.
Based upon the foregoing, it is concluded that the Petitioners have failed to prove that the Proposed Rule is not necessary to carry out the duties and authority conferred upon the Respondent.
Finally, the Petitioners have argued that the Proposed Rule is not necessary to protect the public. This conclusion is based upon the contention of the Petitioners that the Respondent is required to prove that the public has been subjected to some discernible harm or damage before the Respondent adopts a rule. Such a requirement is too restrictive. Although the Respondent is limited to adopting rules to protect the public health, safety or welfare, it is not necessary that the Respondent wait until the public health, safety or welfare is threatened or harmed to take action. See Britt v. Department of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986). All that is necessary is that the Respondent adopt rules which it reasonably believes will benefit the public. By attempting to prevent and reduce potential harm to the public, the Respondent has complied with the requirement of Section 458.309, Florida Statutes.
The Petitioners have suggested a number of reasons why they believe the Proposed Rule is not for the benefit of the public health, safety or welfare. Those reasons and the reason for rejecting them include the following:
The Respondent could not produce any disciplinary cases against ophthalmologist for improper delegation of postoperative care. There is no reason to require the Respondent to wait until discipline is necessary to remind surgeons of an existing standard of care. This argument also overlooks the fact that the Proposed Rule applies to all surgeons and not just ophthalmologists.
The Proposed Rule does not "reasonably address abandonment nor impose the requirements necessary to stop abandonment. . . ." The Proposed Rule was not intended to deal specifically with abandonment. It was only intended to remind surgeons of the existing Standard of Care.
The Proposed Rule does not allow patients the choice as to whom is to provide their postoperative care or recognize a patient's right to sever his or her relationship with the surgeon. The Proposed Rule does nothing to alter these patient rights. There may be other patient rights the Proposed Rule also does not address. The fact that the Proposed Rule is silent on the various rights which a patient may have does not mean that it is not for the benefit of the public.
The Proposed Rule conflicts with the right of a surgeon to withdraw from a case under proper circumstances. The evidence failed to prove this to be the case.
At best the evidence in this case suggested the necessity for close scrutiny of the Respondent's action in adopting the Proposed Rule. This conclusion is based upon the rather long and, presumably expensive, history of litigation between the physicians and optometrists. It is also based upon the relatively modest benefit which may be achieved from the Proposed Rule compared to the effort and cost that went into the adoption of the Proposed Rule, this proceeding and possible future litigation. The weight of the evidence, however, failed to prove that there will be no benefit to the public health, safety or welfare as a result of the adoption of the Proposed Rule.
Based upon the foregoing, it is concluded that the weight of the evidence failed to prove that the Proposed Rule is invalid under Section 120.54(8)(b), Florida Statutes.
Section 120.52(8)(c), Florida Statutes.
The Proposed Rule is an "invalid exercise of delegated legislative authority" if it "enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7)".
Among the duties and authority conferred upon the Respondent, is the duty and authority to discipline physicians under the jurisdiction of the Respondent. In carrying out this duty and authority, the Respondent may adopt rules which interpret the grounds for discipline contained in Chapter 458, Florida Statutes.
The Respondent adopted the Proposed Rule to provide guidance concerning the grounds for discipline contained in Sections 458.331(1)(t) and (w), Florida Statutes. The Petitioners have argued that the Proposed Rule in fact enlarges, modifies and contravenes these provision. This argument is rejected.
Section 458.331(1)(t), Florida Statutes, provides, in pertinent part, the following ground for the discipline of physicians:
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s.
766.102 when enforcing this paragraph. . . .
Section 766.102, Florida Statutes, provides, in pertinent part:
. . . The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
The Petitioners have argued that Proposed Rule 21M-20.15(3), sets out a Standard of Care which is different and more restrictive than Sections 458.331(1)(t) and 766.102(1), Florida Statutes. This argument is based upon the Petitioners' conclusion that the Proposed Rule:
precludes the surgeon from delegating discretionary post-surgical activities to any health care practitioner who is not an equivalently trained licensed doctor of medicine or osteopathy or who is not a resident. Further, delegation of nondiscretionary activities is permitted only if the other health care practitioner is supervised. . . .
Page 40 of the Proposed Final Order of Petitioners and Petitioner/Intervenors.
The evidence in this case failed to prove that the standard of care contained in the Proposed Rule is contrary to the Standard of Care provided for in Section 458.331(1)(t), Florida Statutes, or that it is contrary to the provisions of Section 766.102(1), Florida Statutes. The standard of care contained in the Proposed Rule, based upon the weight of the evidence, is the minimum Standard of Care for surgeons in Florida.
The standard of care set out in the Proposed Rule does not, as argued by the Petitioners, preclude a consideration of the conditions and circumstances of each surgeon's activities contrary to Sections 458.331(1)(t) or 766.102(1), Florida Statutes. The standard of care of the Proposed Rule is only a minimum Standard of Care for surgeons. It does not preclude a consideration of the facts and circumstances pertaining to a surgeon's delegation of surgical care. The standard of care of the Proposed Rule recognizes that the decision as to whether surgical care may be delegated, and, if so, the extent of such delegation, will turn on all of the relevant facts and circumstances. Because the standard of care of the Proposed Rule is consistent with the minimum Standard of Care for surgeons in Florida, the Proposed Rule does not restrict the circumstances in which postoperative care may be delegated contrary to Section 458.331(1)(t), Florida Statutes.
Section 458.331(1)(w), Florida Statutes, provides the following ground for the discipline of physicians:
(w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
The Petitioners have argued that Proposed Rule 21M-20.15(3), is contrary to Section 458.331(1)(w), Florida Statutes. The Petitioners have argued that Section 458.331(1)(w), Florida Statutes, does not require that the person to whom postoperative care is delegated be equivalently trained, a medical or osteopathic doctor, or a resident, or that the surgeon supervise delegated postoperative activities. Although these requirements are not specifically set out in Section 458.331(1)(w), Florida Statutes, the provisions of Section 458.331(1)(w), Florida Statutes, should not be read in a vacuum. A surgeon who wishes to delegate surgical care responsibility must consider the requirements of Section 458.331(1)(w), Florida Statutes, and, pursuant to Section 458.331(1)(t), Florida Statutes, the acceptable Standard of Care in Florida for surgical care.
The weight of the evidence proved that, once a patient enters the realm of surgery, it is the surgeon that is required to see the patient from diagnosis through recovery. Therefore, the ability of health care practitioners to provide care to a surgery patient based upon the health care practitioner's training, experience or licensure must be considered in this context. Consequently, although a health care practitioner may be qualified by training, experience or licensure to perform a particular function without any supervision on a patient who has not had surgery, once that patient undergoes surgery, the health care practitioner's training, experience and licensure are not sufficient to allow the performance of postoperative discretionary activities without supervision.
Section 120.52(8)(d), Florida Statutes.
The Proposed Rules is an "invalid exercise of delegated legislative authority" if it "is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency".
The Petitioners have argued in the Proposed Final Order of Petitioners and Petitioner/Intervenors, page 60, that the following terms are vague: "equivalently trained", "discretionary postoperative activities", "supervised", "management" and "treatment activities".
A rule which subjects a licensee to discipline must give adequate notice of the conduct which the rule prohibits such that a person of common intelligence will be apprised of the conduct which is prohibited. Gardner v. Johnson, 451 So.2d 477 (Fla. 1984); and City of St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982). In determining whether a rule is vague, the language of the rule must be given its plain meaning. Boca Raton Artificial Kidney Center v. Department of Health and Rehabilitative Services, 493 So.2d 1055 (Fla. 1st DCA 1986). In applying these standards, the person to whom the Proposed Rule applies must be considered: a surgeon. If a surgeon would understand the terms of the Proposed Rule so that the surgeon is put on notice of the prohibited conduct, the terms of the Proposed Rule are not vague.
The evidence proved that only the last sentence of Proposed Rule 21M- 20.15(3), is vague. The evidence failed to prove that any other terms in the Proposed Rule are vague. Except for the last sentence of Proposed Rule 21M- 20.15(3), the weight of the evidence proved that the terms of the Proposed Rule have a readily understandable meaning to those surgeons to which the Proposed Rule may apply. The conclusion that the last sentence of Proposed Rule 21M- 20.15(3), is invalid does not affect the validity of the rest of the Proposed Rule.
Section 120.52(8)(e), Florida Statutes.
The Proposed Rules is an "invalid exercise of delegated legislative authority" if it "is arbitrary or capricious." An arbitrary and capricious action 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.
Agrico, supra, at 763. The weight of the evidence presented in this proceeding failed to prove that the Proposed Rule was promulgated without thought and reason or that the Proposed Rule is not supported by facts and logic.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the last sentence of Proposed Rule 21M-20.15(3), is an invalid
exercise of delegated authority. It is further
ORDERED that the weight of the evidence failed to prove that, except for the last sentence of Proposed Rule 21M-20.15(3), Proposed Rule 21M-20.15 constitutes an invalid exercise of delegated authority. Except for the challenge to the last sentence of Proposed Rule 21M-20.15(3), the challenge to the Proposed Rule is DISMISSED. It is further
ORDERED that the Florida Optometric Association, Phil Dagostino, O.D., John McClane, III, O.D., the Florida Nurses Association and the Florida Department of Corrections failed to prove that they have standing to institute or participate in this proceedings and are, therefore, DISMISSED.
DONE and ENTERED this 30th day of October, 1991, 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 30th day of October, 1991.
ENDNOTES
1/ Only one proposed final order has been filed by the Petitioners and the Petitioner/Intervenors. The arguments made on behalf of the Petitioners in that proposed final order were usually also made on behalf of the Petitioner/Intervenors. In these conclusions of law, references to any argument
of the Petitioners recognizes that the argument usually applies to the Petitioner/Intervenors also.
APPENDIX TO FINAL ORDER
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 Petitioner/Intervenors' Proposed Findings of Fact
Proposed Finding Paragraph Number in Final Order
of Fact Number of Acceptance or Reason for Rejection
1 1-2.
2 To the extent relevant, see 4.
3 2-3.
4 Hereby accepted.
5 6.
6 and 8.
Not supported by the weight of the evidence.
8 13-15.
9 Not supported by the weight of the evidence.
10 22.
Not relevant to this proceeding.
23 and hereby accepted.
23-24. The last two sentences are not supported by the weight of the evidence.
14-16 Not supported by the weight of the evidence.
17 Hereby accepted.
18 12 and 34.
19 See 35-36.
Hereby accepted.
36 and 38-40. Whether the Respondent made "inquiry . .
. of other sources" is not relevant.
Not relevant.
See 36 and 39.
While generally correct, the evidence failed to prove that FSO's information was "unsupported" and, more importantly, many others testified during the rule-making process.
25-26 Not relevant. The last sentence of proposed finding of fact 26 is distorted.
27 51.
28 Not relevant.
29-35 To the extent relevant, see 52.
Not supported by the weight of the evidence.
Although it is true the Respondent was provided with documentation concerning the impact of the Proposed Rule, the weight of the evidence failed to prove the documentation proved the Proposed Rule will have an anti-competitive impact.
Not relevant.
39 89.
40 See 90 and 93-94.
41 | 82. | |
42 | 90. | |
43 | 94. | |
44 | See 74-80 and 93. | |
45 | 91. See 89-100. The fourth sentence is not supported | |
by | the weight of | the evidence. |
46 | 113. | |
47 | See 114 and 116-126. | |
48 | 117-118. But see 123-126. | |
49 | 119. | |
50 | See 120. | |
51 | See 121. | |
52 | 122. |
See 89-100. The last two sentences are not relevant.
Hereby accepted.
The first sentence is hereby accepted. The second sentence implies that it is merely a choice of the patient, which the evidence did not prove.
Not supported by the weight of the evidence.
Not relevant.
Not supported by the weight of the evidence
59-62 Not relevant.
63-64 Not supported by the weight of the evidence.
65-66 See 79-80 and not relevant.
Not supported by the weight of the evidence. The proposed finding of fact does included a generally correct summary of some of the testimony.
Not relevant.
Not supported by the weight of the evidence.
70 135.
Hereby accepted.
131-132. See 133. The last sentence is not relevant.
Hereby accepted. The last sentence is not relevant.
74-75 Not relevant.
76 Although generally correct, Mr. Sullivan's testimony was based upon an incorrect assumption concerning the impact of the Proposed Rule.
77 See 135.
78 96-97 and hereby accepted. Mr. Sullivan's testimony was based upon an incorrect assumption concerning the impact of the Proposed Rule.
79-80 Not relevant.
81-83 Hereby accepted. See 96-97.
Not supported by the weight of the evidence. See 137- 138.
The first and second sentences are hereby accepted. The rest of this proposed finding is not supported by the weight of the evidence.
86-90 Not supported by the weight of the evidence. See 137- 138.
Not relevant or not supported by the weight of the evidence.
Hereby accepted.
93-94 Not supported by the weight of the evidence.
Not relevant.
Hereby accepted.
The first and third sentences are hereby accepted. The second sentence is not supported by the weight of the evidence. The last sentence correctly reflect the events they purport to reflect.
The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order
of Fact Number of Acceptance or Reason for Rejection
1 29.
2 Not relevant. The Board of Optometry was dismissed in a previously issued Order, as clarified.
3 30-31.
4 1-2.
5 13 and 16.
6 21.
7 5 and 33.
6. (Chapter 463 and not 458 is the relevant Chapter of Florida Statutes).
Procedural statement.
10 See 35-40.
11 61.
12 41-43.
13 45.
14-15 See 42 and hereby accepted.
16 47.
17 48-49.
18 52.
44 and hereby accepted.
Ms. Lannon did make the statement quoted. To the extent that the statements contained therein have been proven, they have been contained in various findings of fact.
See 53.
See 50.
23 64-65.
24-28 Hereby accepted.
29 29.
30 See 61.
31-32 Hereby accepted.
33 194,
34 60.
35 54.
36 56.
37 103.
38 See 107.
39 Hereby accepted.
40-41 69.
42 105 and 112.
43 67-68.
44 See 104 and 106.
45 71.
46 108.
47 72.
48 110.
49 111.
50 84 and hereby accepted.
51 82.
52-53 Hereby accepted.
54 112.
55 Not supported by the weight of the evidence. The Proposed Rule is silent concerning the delegation of non-discretionary responsibilities.
56 73.
57 Hereby accepted.
58 73-74.
59 Not supported by the weight of the evidence. See 86- 87.
60 127-129.
61 Hereby accepted.
62 127.
63-64 131.
65 132.
66 133.
67 Hereby accepted.
68-69 134.
70 130.
71 136.
72 Hereby accepted.
73 16-17.
74 14 and hereby accepted.
75-76 Hereby accepted.
77-80 Not relevant what Corrections "admits."
81 26.
The Respondent/Intervenors' Proposed Findings of Fact | ||
Proposed Finding of Fact Number | Paragraph Number in Final Order of Acceptance or Reason for Rejection | |
1 | 29. | |
2 a previously issued 3 | Not relevant. The Board of Optometry was Order, as clarified. 1-2. | dismissed in |
4 | 5. | |
5 | 6-8. | |
6-7 | 13. | |
8 | Procedural statement. | |
9 | 30-31. | |
10 | 33. | |
11 | 35-54. | |
12 | 36. | |
13 | 39. | |
14 | 41 and hereby accepted. | |
15 | 35-54. | |
16 | Hereby accepted. | |
17 | 44. | |
18 | See 63. | |
19 | Ms. Lannon did make the statement quoted. | To the |
extent that the statements contained therein have been proven, they have been contained in various findings of fact. | ||
20 | 47. | |
21 | 48-49 | |
22 | 54. | |
23 | 53. | |
24 | 50. | ||
25 | 64 and 102. | ||
26 | 65 and 116. | ||
27-28 | 54, 103, 106, 108, 111 and 113-114. | ||
29 | 56. | ||
30 | 69-70 and 112. | ||
31 | 67-68. | ||
32 | 78 and hereby accepted. | ||
33 | 71-73. | ||
34 | 82. | ||
35 | 84-85. | ||
36 | 103. | ||
37 | 104 and 106. | ||
38 | 104 and 106-107. | ||
39 | 108. | ||
40 | 110. | ||
41 | Not relevant. | ||
42 | 124. | ||
43 | 125. | ||
44 | 111 and 113. | ||
45 | 111-113. | ||
46 | 113. | ||
47 | 114. | ||
48-50 | Not relevant. | ||
51 | Not supported by the weight of the evidence. | ||
52 | 127-129. | ||
53 | 95. | ||
54 | Not relevant. | ||
55 | 89-91. | ||
56 | See 93. | ||
57-58 Second 58 59 evidence. 60-61 | See 94. 93 and 95. Not relevant and not supported by the weight See 61. | of | the |
62 | Not supported by the weight of the evidence. | ||
63 | 96-97. | ||
64 | See 97 and hereby accepted. | ||
65 | 98. | ||
66-67 | 99 and hereby accepted. | ||
68 | 100 and hereby accepted. | ||
69 | 98-100 and hereby accepted. | ||
70-71 | Not supported by the weight of | the evidence. | |
72 | 14 and 26. | ||
73 | 17. | ||
74-75 | Conclusions of law. | ||
76 | 26. | ||
77 | 130. | ||
78 | 139. | ||
79-80 | 131. | ||
81 | 132. | ||
82 | 133-134. | ||
83 | 134. | ||
84-85 | Hereby accepted. | ||
86 | 136. | ||
87-89 | Hereby accepted. | ||
COPIES FURNISHED:
James C. Adkins, Esquire Leonard A. Carson, Esquire Lucille E. Turner, Esquire Rosa Carson, Esquire
Mahan Station 1711-D Mahan Drive
Tallahassee, Florida 32308
M. Catherine Lannon Arthur Wiedinger, Jr. Ann Cocheu
Assistant Attorneys General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32399-1050
Martha W. Barnett, Esquire
D. Bruce May, Esquire Scott D. Makar, Esquire Post Office Drawer 810
Tallahassee, Florida 32302
Elaine Hall
Assistant General Counsel Department of Corrections 2601 Blairstone Road
Tallahassee, Florida 32399-2500
Liz Cloud, Chief
Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250
Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
George Stuart, Secretary
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0750
Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0750
Dorothy Faircloth, Executive Director Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0750
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
FLORIDA BOARD OF OPTOMETRY, NOT FINAL UNTIL TIME EXPIRES TO FLORIDA OPTOMETRIC ASSOCIATION, FILE MOTION FOR REHEARING AND ALBERT ARAN, M.D., DISPOSITION THEREOF IF FILED. PHILIP DAGOSTINO, O.D.,
PAUL E. GARLAND, M.D., and CASE NO. 91-3848
JOHN MCCLANE, III, O.D., DOAH CASE NO. 91-0534RX
Appellants,
and
FLORIDA NURSES ASSOCIATION,
Intervenor/Appellant,
v.
FLORIDA BOARD OF MEDICINE,
Appellee,
and FLORIDA MEDICAL ASSOCIATION and WAITE S. KIRKCONNELL, M.D.,
Intervenors/Appellees.
/ Opinion filed April 5, 1993.
Appeal from an order of the Division of Administrative Hearings.
James C. Adkins, Leonard A. Carson, Lucille E. Turner, and Rosa H. Carson, of Carson, Linn & Adkins, Tallahassee, for appellants.
Robert A. Butterworth, Attorney General, and Arthur R. Wiedinger, Jr., Ann Cocheu, M. Catherine Lannon, Assistant Attorneys General, Tallahassee, for appellee.
Martha W. Barnett, D. Bruce May, and Scott D. Makar, of Holland & Knight, Tallahassee, for intervenors/appellees Florida Medical Association and Waite S. Kirkconnell, M.D.
BARFIELD, J.
The appellants challenge a final order of the Division of Administrative Hearings determining the validity of the Board of Medicines proposed "Surgical Care Rule," Rule 21M-20.015, Florida Administrative Code. We affirm.
Appellants contend that the proposed rule is an invalid exercise of legislative authority as defined in section 120.52(8), Florida Statutes, because the Board of Medicine does not have the authority to create a "standard of practice" rule, because the rule creates a new standard of care which modifies, expands, and contravenes existing law, because the rule is vague, fails to put physicians on notice as to what is required or prohibited by the rule, and allows the Board of Medicine unbridled discretion in its enforcement, and because the rule is arbitrary and capricious. They also assert that the rule is invalid because the Board of Medicine failed to adequately consider its economic impact.
In addition, the Florida Board of Optometry challenges the hearing officer's order dismissing it from the proceedings and his order of clarification indicating that it had been dismissed because it lacked standing as a matter of law. The Florida Optometric Association (FOA), the Florida Nursing Association (FNA), Dr. McClane, and Dr. Dagostino argue that they are adversely affected by the proposed rule and therefore had standing to challenge it.
During the proceedings, the Board of Medicine filed a motion to dismiss the Board of Optometry, FOA, and Drs. McClane and Dagostino on the ground that they lacked standing. Attached to the motion was Attorney General Opinion 85-61, which stated that administrative boards within the Department of Professional Regulation (DPR) do not possess the statutory authority to initiate administrative proceedings in order to challenge the rules of other such boards, but noted that the Secretary of DPR does have standing to challenge any rule or proposed rule. The hearing officer dismissed the Board of Optometry, and in a subsequent order clarified that the Board was dismissed for lack of standing as a matter of law. He concluded that:
[T]he Florida Board of Optometry, unlike the Department of Professional Regulation, has no authority to challenge the regulation by other boards of the Department of Professional Regulation of persons subject to the jurisdiction of those other boards. Nor does the Florida Board of Optometry, unlike the
Florida Optometric Association, have the authority to represent individual practitioners.
In his final order, the hearing officer found that optometrists licensed in Florida are not regulated by or subject to discipline by the Board of Medicine, and that they are also not subject to its rules. He further found that the weight of the evidence failed to prove that the proposed rule would cause FOA members, including Dr. Dagostino and Dr. McClane, to be adversely affected economically or in any other substantial manner. He found that the proposed rule does not regulate the conduct of FNA members, who are not subject to discipline by the Board of Medicine, and that the weight of the evidence failed to prove that the rule would cause FNA members to be adversely affected economically or in any other substantial manner. He concluded that FOA, FNA, Dr. Dagostino, and Dr. McClane did not have standing to challenge the validity of the rule, which regulates only physicians. 1/
The hearing officer found that the weight of the evidence indicated that the Board of Medicine's conclusions were reasonable: that there was a potential problem with the provision of surgical care, and that surgeons should be reminded of their responsibility. He found that the Board of Medicine had attempted to express the commonly-accepted standard of care in Florida concerning a surgeon's pre-operative and postoperative care responsibilities in the proposed rule, in order to put physicians on notice of, and to remind them of, that existing standard of care. Noting the rulemaking authority of section 458.309, Florida Statutes, he found that the weight of the evidence did not show the proposed rule to be inconsistent with existing law, including section 458.331(1)(t) and (w), 2/ or that the rule was not necessary to carry out the Board's responsibilities, or that the rule was not necessary to protect the health, safety, and welfare of the public. He refused to consider additional grounds for declaring the rule invalid under section 455.211, because no challenge under that statute had been instituted by the Secretary of DPR.
The hearing officer found that the petitioners had failed to prove that the terms of the proposed rule were vague, but that the last sentence in subsection (3), "... The operating surgeon remains responsible for all treatment activities," was vague and was therefore an invalid exercise of delegated authority. He found that the weight of the evidence failed to prove "that the Proposed Rule was promulgated without thought and reason or that the Proposed Rule is not supported by facts or logic."
He found that the economic impact statement (EIS) was adequate and that the Board of Medicine had reasonably concluded that no formal economic analysis was necessary because the rule did not change the existing standard of care, and because the Board had allowed affected groups to present evidence of economic impact before preparing the EIS. He ruled that the following statement in the EIS was "incorrect and inconsistent with the requirements of the Proposed Rules":
While ophthalmologists who now delegate postoperative care to non-physicians would be required to provide all the care and, presumably, bill for the entire fee, their individual incomes may not be significantly affected since this change of practice
pattern may reduce the volume and such reduced
volume would balance out the increases in individual case billings.
He concluded that the petitioners' suggestion, that the economic impact on optometrists and ophthalmologists was significantly understated in the EIS, was based upon an incorrect interpretation of the rule as prohibiting co-management. He noted that the EIS stated there should be little cost or economic benefit to persons directly affected by the rule, because "most physicians are already practicing in compliance with this interpretation of the statute. He found this statement to be consistent with the Proposed rule, which he found "only codifies existing Standards of Care in Florida."
After careful review of she extensive record in this case, we find that, although conflicting evidence was presented below, competent, substantial evidence supports each of the hearing officer's findings of fact, which in turn support his legal conclusions regarding the validity of the proposed rule and the parties' standing to challenge it.
AFFIRMED.
ERVIN, J., CONCURS. ZEHMER, J., DISSENTS, WITH OPINION.
ZEHMER, J. (Dissenting)
I conclude that the rule in question, rule 21M-20.015, constitutes an invalid exercise of delegated legislative authority because it exceeds the statutory authority delegated to the Board of Medicine by the statutes cited as authority for this rule, and that the implementation of this rule as presently framed will adversely affect appellants, individually or in their representative capacities. Therefore, the appealed order errs in denying appellants standing to challenge the validity of the rule and errs in upholding the validity of the rule. Accordingly, I respectfully dissent.
ENDNOTES
1/ The hearing officer also found that the Department of Corrections (DOC), which had intervened, did not have standing to challenge the proposed rule. DOC voluntarily dismissed its appeal from this ruling.
2/ He observed:
Although comments made by various members of the Respondent at various times during the three years it took to draft the Proposed Rule, if considered alone, could lead to the conclusion that some members of the Respondent would have preferred to have
established a standard of care consistent with their beliefs, the weight of the evidence failed to prove that the Respondent intended to, and actually did, create a standard of care in promulgating the Proposed Rule.
He found that anesthesia activities during surgery do not generally require postoperative follow-up, and that the proposed rule was not intended to make any pronouncement concerning the existing standard of care for anesthesia-related activities.
MANDATE
From
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:
FLORIDA OPTOMETRIC ASSOCIATION ALBERT ARAN, M.D., PHILIP DAGOSTINO. O.D., PAUL E. GARLAND,
M.D., and JOHN McCLANE, III, Case No. 91-3848
O.D., Your Case No.91-0534RX
vs.
FLORIDA BOARD OF MEDICINE
The attached opinion was rendered on April 5, 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 21st day of April, 1993.
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Apr. 22, 1993 | (1st DCA) Mandate & Opinion filed. |
| Apr. 06, 1993 | Opinion filed. |
| Mar. 16, 1992 | Index, Record, Certificate of Record sent out. |
| Mar. 11, 1992 | ORDER(Appellee's motion for extension of time to serve answer brief is GRANTED, until 03/10/92) filed. |
| Feb. 20, 1992 | DCA Dismissed Case DCA NO 1-91-3927 filed. |
| Feb. 12, 1992 | ORDER(Appellants` motion for extension of time to serve initial briefs GRANTED, and extended to 02/10/92.) filed. |
| Jan. 17, 1992 | Index & Statement of Service sent out. |
| Dec. 05, 1991 | Letter to DOAH from DCA filed. DCA Case No. 1-91-3848. |
| Nov. 27, 1991 | Certificate of Notice of Administrative Appeal sent out. |
| Nov. 27, 1991 | Notice of Administrative Appeal filed. |
| Oct. 30, 1991 | CASE CLOSED. Final Order sent out. Hearing held 7/22-24/91. |
| Sep. 27, 1991 | Respondents Final Order filed. |
| Sep. 27, 1991 | (Intervenors) Notice of Filing; Proposed Final Order of The Hearing Officer; Proposed Final Order of Petitioners and Petitioner/Intervenors filed. |
| Aug. 27, 1991 | Order Concerning Objections to Depositions sent out. |
| Aug. 26, 1991 | Transcript (Vols 1-6) filed. |
| Aug. 21, 1991 | Respondent-Intervenors Objections to Deposition Testimony filed. |
| Aug. 21, 1991 | Petitioners and Petitioner/Intervenors Response to Respondents and Respondent/Intervenors Objections to Deposition Testimony filed. |
| Aug. 14, 1991 | Respondent-Intervenor's Objections to Deposition Testimony filed. (From D. Bruce May) |
| Aug. 14, 1991 | Objections to Transcript filed. (From Arthur Wiedinger, Jr.) |
| Aug. 14, 1991 | Petitioners' and Petitioner/Intervenors' Objections to Deposition Questions and Exhibits and Argument in Support of the Objections filed. (From Rosa Carson) |
| Aug. 05, 1991 | Order Denying Petitioners' and Florida Nurses Associations's Motion to Deem Matters Conclusively Established sent out. |
| Jul. 22, 1991 | CASE STATUS: Hearing Held. |
| Jul. 22, 1991 | PEtitioners' and Petitioner/Intervenors' Prehearing Statement filed. (From James C. Adkins et al) |
| Jul. 19, 1991 | Order Granting Motion for Hearing on Department of Corrections' Petition to Intervene and Granting Petition to Intervene sent out. |
| Jul. 19, 1991 | Order Concerning Motions to Quash sent out. |
| Jul. 19, 1991 | (Intervenors/Respondent) Prehearing Stipulation filed. (From Martha W. Barnett & Arthur Wiedinger) |
| Jul. 19, 1991 | (Respondent) Response to Petitioners` and Florida Nurses Association`s Motion to Deem Matters Conclusively Established w/exhibits 1-4 filed.(From Arthur R. Wiedinger, Jr.) |
| Jul. 19, 1991 | (Respondent) Second Amended Motion to Quash Subpoenas and For Protective Order (2) w/affidavit & attachment filed. (from Ann Cocheu) |
| Jul. 19, 1991 | (Respondent) Second Amended Motion to Quash Subpoenas and For Protective Order & attachment filed. (From Ann Cocheu) |
| Jul. 18, 1991 | Notice of Appearance filed. (from Ann Cocheu) |
| Jul. 18, 1991 | Petitioners' and Florida Nurses Association's Motion to Deem Matters Conclusively Established w/Appendix A&B filed. (From James C. Adkins et al) |
| Jul. 16, 1991 | Order Concerning Motion for Protective Order sent out. |
| Jul. 16, 1991 | (Dept of Corrections) Witness List filed. |
| Jul. 15, 1991 | Petitioners and Florida Nurses Association's Response to Motion to Quash Subpoena of M. Catherine Lannon filed. |
| Jul. 15, 1991 | FL Department of Corrections' Petition to Intervene; Motion for Hearing on Dept. of Corrections; Petition to Intervene filed. |
| Jul. 15, 1991 | Amended Motion to Quash Subps for Protective Order filed. |
| Jul. 15, 1991 | Notice of Telephonic Hearing; Motion for Protective Order filed. |
| Jul. 12, 1991 | (Intervenors) Motion to Quash Subpoena w/Exhibit-A filed. (From Martha W. Barnett) |
| Jul. 12, 1991 | (Respondent) Motion to Quash Subpoenas and For Protective Order filed. (From Arthur R. Wiedinger, Jr.) |
| Jul. 09, 1991 | (Respondent) Motion to Quash Subpoena filed. (From Arthur R. Wiedinger, Jr.) |
| Jul. 05, 1991 | (Respondent) Motion to Quash Subpoena filed. (From Arthur R. Wiedinger, Jr.) |
| Jul. 03, 1991 | Petitioners' and Florida Nurses Associations' First Interrogatories to Respondent filed. |
| Jul. 03, 1991 | (Fl Nurses Assn) Notice of Withdrawal of Co-Counsel filed. |
| Jul. 02, 1991 | Verification of Answers to Interrogs (4) filed. |
| Jul. 01, 1991 | Ltr. to L. Sartin from L. Carson w/Notice of Taking Deposition & SubpDT filed. |
| Jun. 26, 1991 | Petitioners' and Florida Nurses Associations' First Interrogatories to INtervenors filed. (From Lucille E. Turner) |
| Jun. 26, 1991 | Notice of Taking Deposition filed. (from Scott Maker) |
| Jun. 26, 1991 | Intervenors' Response to Petitioners' and Florida Nurses Association's First Request for Admissions; Notice of Service of Intervenors' Response to Petitioners' and FNA'S First And Second Interrogatories; Intervenors' Response to Petitioners' and Florida N |
| Jun. 25, 1991 | Order sent out. (re: answers to interrogatories) |
| Jun. 24, 1991 | Notice of Cancellation of Deposition of Richard Barrett filed. (From James C. Adkins et al) |
| Jun. 24, 1991 | (Petitioners) Notice of Taking Deposition of Expert Witness Richard Barrett filed. (From James C. Adkins et al) |
| Jun. 21, 1991 | Notice of Cancellation of Deposition w/Addendum-A filed. (From MarthaW. Barnett) |
| Jun. 20, 1991 | Subpoena Duces Tecum filed. (From Lucille E. Turner) |
| Jun. 19, 1991 | Petitioners' Response to Intervenors' Motion to Compel Answers to Interrogatories and Production of Documents & Appendix filed. (From JamesC. Adkins et al) |
| Jun. 19, 1991 | Notice of Cancelation of Deposition of Expert Witness Charles Adams, M.D.; Notice of Taking Deposition of Expert Witness Mark Sarno, O.E.; Notice of Taking Deposition of Expert Witness William Brown; Notice ofRescheduling Depositi on of expert Witness Cha |
| Jun. 19, 1991 | Notice of Taking Deposition filed. (from Martha W. Barnett) |
| Jun. 17, 1991 | Notice of Taking Deposition of Expert Witness Charles Adams, M.D. filed. (From James C. Adkins et al) |
| Jun. 14, 1991 | Notice of Taking Deposition of Intervenors' Witness Martin F. Grace filed. (From James C. Adkins et al) |
| Jun. 14, 1991 | Notice of Taking Deposition filed. (from Scott D. Maker) |
| Jun. 13, 1991 | Notice of Taking Deposition Expert Witness John Hester; Notice of Cancellation of Deposition of Dan Sullivan filed. (from James C. Adkins et al) |
| Jun. 13, 1991 | Notice of Cancellation of Deposition of Steve Everitt; Notice of Taking Deposition of Expert Witness Lawrence Katzen, M.D.; Notice of Rescheduling Time and Location of Deposition of Expert Witness Michael Stick, M.D.; Notice of Rescheduling Deposition of |
| Jun. 13, 1991 | Notice of Continuation of Deposition filed. (From Martha W. Barnett) |
| Jun. 13, 1991 | Notice of Taking Deposition of Expert Witness michael Stick, M.D.; Notice of Taking Deposition of Expert Witness Michael Haney, M.D. filed.(From James C. Adkins et al) |
| Jun. 12, 1991 | Order Denying Petitioner's and Florida Nurses Association's Motion for Leave to File and Amended Petition for Determination of Invalidity of Proposed Rule sent out. |
| Jun. 12, 1991 | Motion to Compel Answers to Interrogatories and Production of Documents; Intervenors' Third Request for Production of Documents; Notice of Service of Intervenors' Second Set of Interrogatories to Petitioners; Intervenors' Second Set of Interrogatories to |
| Jun. 12, 1991 | Petitioners' And FNA'S Second Request for Production of Documents to Intervenors; Notice of Service of Petitioners' and Florida Nurses Associations' Second Interrogatories to Intervenors; Petitioners' and Florida Nurses Associations' Second Interrogatorie |
| Jun. 12, 1991 | Notice of Taking Deposition of Expert Witness Louis Catania, O. D. filed. (Fom James C. Adkins et al) |
| Jun. 11, 1991 | Petitioners' and Florida Nurses Associations' First Request for Admissions to Intervenors; Petitioners' and FNA'S First Request for Production of Documents to Intervenors; Petitioners' and FNA'S First Request for Production of Documents to Respondent rec' |
| Jun. 11, 1991 | Notice of Service of Petitioners' and Florida Nurses Associations' First Interrogatories to Intervenors; Petitioners' and Florida Nurses Associations' First Interrogatories to Intervenors; Petitioners' and Florida Nurses Associations' First Request for Ad |
| Jun. 11, 1991 | Notice of SErvice of Petitioners' and Florida Nurses Associations' First Interrogatories to Respondent; Petitioners' and Florida Nurses Associations' First Interrogatories to Respondent filed. (From James C. Adkins et al) |
| Jun. 11, 1991 | (Intervenors) Notice of Taking Deposition filed. (From Martha W. Barnett) |
| Jun. 10, 1991 | CC Letter to D. Bruce May from Alan C. Rither (re: Subpoena Duces Tecum) filed. |
| Jun. 10, 1991 | CC Letter to Leonard Carson from Arthur R. Wiedinger, Jr. (re: Names and Addreses of Witnesses) filed. |
| Jun. 10, 1991 | CC (2) Letter to Bruce May from Rosa H. Carson (re: Deposition of Dennis Revicki) filed. |
| Jun. 10, 1991 | Petitioners' and Florida Nurses Association's Witness List filed. (From Lucille E. Turner) |
| Jun. 10, 1991 | Letter to Bruce May from Leonard A. Carson (re: request for addressesof witnesses) filed. |
| Jun. 10, 1991 | Intervenors' Second Request For Production of Documents filed. (From Scott Maker) |
| Jun. 10, 1991 | Order Concerning Motion for Protective Order sent out. |
| Jun. 07, 1991 | Notice of Filing Petitioners' and Florida Nurses Association's Witness Lists & attachment filed. (From Lucille E. Turner) |
| Jun. 06, 1991 | CC Letter to D. Bruce May from Lucille E. Turner (re: information about expert witnesses scheduled for deposition) filed. |
| Jun. 05, 1991 | Amended Notice of Taking Deposition of Expert Witness Dennis Revicki filed. (From James C. Adkins et al) |
| Jun. 05, 1991 | (Petitioners) Motion For Protective Order filed. (From Rosa H. Carson) |
| Jun. 05, 1991 | Notice of Taking Deposition w/attached Subpoena Duces Tecum filed. (From Scott D. Makar) |
| Jun. 04, 1991 | Intervenors' Memorandum in Opposition to Motion of Petitioners and Florida Nursing Association to Amend Petition filed. (From Martha W. Barnett) |
| Jun. 04, 1991 | Notice of Taking Deposition Duces Tecum; Notice of Taking Deposition of Expert Witness Dennis Revicki; Notice of Taking Deposition of Leslie Walls, M. D.; Notice of Taking Deposition of Steve Everitt filed. (from Lucille Turner) |
| Jun. 03, 1991 | Notice of Taking Deposition of Paul Garland, M.D. filed. (From Leoanrd A. Carson) |
| Jun. 03, 1991 | Order Denying Respondent's Motion in Opposition to Florida Nurses Association's Petition to Intervene, Motion of Intervenors, Florida Medical Association and Waite S. Kirkconnell for Reconsideration of Interlocutory Order and In Opposition to the Petition |
| May 30, 1991 | Order Granting Motion for Continuance of Formal Hearing and Rescheduling Formal Hearing sent out. (hearing rescheduled for July 22-24, 1991; 9:00am; Talla). |
| May 30, 1991 | Petitioners and FNA's Response to Motion of Intervenors (FMA and Dr. Kirkconnell) for Reconsideration of Interlocutory Order Granting Standing to The Florida Optometric Association, Philip Dagostino, O.D., andJohn McClane, III, O. D. filed. |
| May 30, 1991 | Petitioners and FNA's Response to FMA and Dr. Kirkconell's Motion in Opposition to Florida Nurses Associations Petition to Intervene; Notice of Cancelling Deposition of Daniel J. Sullivan; Notice of CancellingDeposition of Steve E veritt; Petitioners Resp |
| May 29, 1991 | Petitioners and FNA's Response to Respondents Motion in Opposition toFlorida Nurses Associations Petition to Intervene filed. |
| May 29, 1991 | (Respondent) Motion for Continuance of Formal Hearing; Notice of Withdrawal and Substitution of Counsel filed. |
| May 29, 1991 | Amended Petition for Determination of Invalidity of Proposed Rule; Petitioners and FL Nurses Assoc's Motion for Leave to File an Amended Petition for Determination of Invalidity of Proposed Rule filed. |
| May 29, 1991 | Notice of Cancellation of Deposition of Leslie Walls, M.D. filed. |
| May 24, 1991 | Notice of Taking Deposition filed. (from M. W. Barnett) |
| May 23, 1991 | Letter to Lucille Turner from Bruce May (re: Names & addresses of witnesses) w/Ltr to L. Turner from Bruce May (re: Depositions scheduled) filed. |
| May 23, 1991 | Motion of Intervenors For Reconsideration of Interlocutory Order Granting Standing to the Florida Optometric Association, Philip Dagostino,O. D. and John McClane, III. O.D. filed. (From M. Barnett) |
| May 23, 1991 | Notice of Cancelling Deposition; Motion of Intervenors, Florida MEdical Association and "Waite S. Kirkconnell For REconsideration of Interlocutory Order and In Opposition to the Petition of the Florida Nurses Association to Intervene filed. (From M. Barne |
| May 23, 1991 | Notice of Taking Deposition w/attached Subpoena Duces Tecum filed. (from M. Barnett) |
| May 21, 1991 | Notice of Taking Deposition filed. (From Lucille E. Turner) |
| May 20, 1991 | Notice of Taking Deposition (4); Notice of Cancellin Deposition of Dr. Paul Garland filed. (from Lucille E. Turner) |
| May 20, 1991 | Respondent's Motion in Opposition to Florida Nurses Association's Petition to Intervene filed. (from Cathrine Lannon) |
| May 20, 1991 | Letter to Leonard A. Carson from D. Bruce May (re: telephone conference concerning various prehearing scheduling issues) filed. |
| May 17, 1991 | Order Granting Petition to Intervene sent out. (for Florida Nurses Association). |
| May 17, 1991 | Order Concerning Intervenors' Motion for Pre-Hearing Conference, Establishment of an Expedited Discovery Schedule, and the Requirement of Prefiled Testimony sent out. |
| May 17, 1991 | Order Denying Intervenors' Motion to Strike sent out. |
| May 17, 1991 | Order of Prehearing Instructions sent out. |
| May 17, 1991 | CC Letter to Bruce May from Lucille E. Turner (re: Proposed prehearing schedule) filed. |
| May 17, 1991 | (Petitioner) (2) Notices of Taking Deposition filed. |
| May 16, 1991 | Letter to LJS from D. Bruce May (Re: Meeting; Attached Prehearing Schedule) filed. |
| May 15, 1991 | Petitioners' Response to Intervenors' Motion For PRehearing Conference, Establishment of an Expedited Discovery Schedule, and the Requirement of Prefiled Testimony filed. (From L. E. Turner) |
| May 14, 1991 | Petitioner's Response to Intervenro's Petition to Intervene; Petitioenr's Response to Intervenors' Motion to Strike; Appendix filed. |
| May 13, 1991 | Intervenors' Motion For Pre-Hearing Conference, Establishment of An Expedited Discovery Schedule, and the Requirement of Prefiled Testimonyfiled. (from D. Bruce May) |
| May 13, 1991 | Intervenors' First Request For Production of Documents; Notice of Service of Intervenors' First Set of Interrogatories to Petitioners; Intervenors' First Set of Interrogatories to Petitioners; Intervenors' First Request For Admissions to Petitioners rec'd |
| May 13, 1991 | Florida Nurses Association's Petition to Intervene filed. (From Lucille E. Turner |
| May 09, 1991 | Order Granting Intervenors' Motion to Expedite and Petition to Intervene sent out. |
| May 08, 1991 | Intervenors' Motion to Expedite filed. (From D. Bruce May) |
| May 08, 1991 | Order Granting Consented Motion for Continuance and Rescheduling Formal Hearing sent out. (hearing rescheduled for June 10-12, 1991; 9:00am; Talla). |
| May 07, 1991 | Intervenors' Motion to Strike filed. (from Bruce May) |
| May 07, 1991 | Consented Motion for Continuance filed. (From Lucille E. Turner) |
| May 06, 1991 | Petition For Leave to Intervene filed. (From Martha W. Barnett) |
| Apr. 18, 1991 | Order of Clarification sent out. (Request to file and amended petition is denied; Request for reconsideration is denied). |
| Apr. 03, 1991 | (Petitioner) Motion by Petitioner Florida Board of Optometry for Clarification, Leave to Amend The Petition, and Reconsideration of The Hearing Officers Order Concerning Motion to Dismiss filed. |
| Mar. 25, 1991 | Order Concerning Motion to Dismiss sent out. |
| Feb. 27, 1991 | Petitioners Request for Oral Argument; Petitioners Response to Motionto Dismiss filed. |
| Feb. 26, 1991 | Notice of Hearing sent out. (hearing set for 5/21-23/91; at 9:00am; in Talla) |
| Feb. 22, 1991 | Consented Motion for One Day Extension of Time; Response to Hearing Officers Order; (Proposed) Order Granting Consented Motion for One Day Extension of Time filed. |
| Feb. 12, 1991 | Order Granting Joint Motion for Continuance (Formal Hearing is cancelled) sent out. |
| Feb. 11, 1991 | (Respondent) Motion to Dismiss & attachments filed. (From M. Catherine Lannon) |
| Feb. 11, 1991 | Joint Motion for Continuance filed. (From M. Cathrine Lannon) |
| Jan. 31, 1991 | Notice of Hearing sent out. (hearing set for 2/28/91; 9:00am; Talla) |
| Jan. 30, 1991 | Order of Assignment sent out. |
| Jan. 29, 1991 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| Jan. 25, 1991 | Petition for Determination of Invalidity of Proposed Rule filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 05, 1993 | Opinion | |
| Oct. 30, 1991 | DOAH Final Order | Rule establishing standard of care for surgery and delegation of duties by surgeon not invalid except for last sentence of paragraph 3 of rule. |
