STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERMAN COLLEGE OF STRAIGHT )

CHIROPRACTIC, )

)

Petitioner, )

and )

)

SHERYLL J. INDIAAN, )

)

Intervenor, )

)

vs. ) CASE NO. 93-1476RP

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Respondent. )

) SHERMAN COLLEGE OF STRAIGHT ) CHIROPRACTIC, and SHERYLL J. ) INDIAAN, )

)

Petitioners, )

)

vs. ) CASE NO. 93-1477RX

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on June 7, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner, Gerald B. Sternstein, Esquire Sherman College of Frank P. Rainer, Esquire Straight Chiropractic RUDEN, BARNETT, MCCLOSKY,

and SMITH, SCHUSTER & RUSSELL, P.A.

For Petitioner/Intervenor, 215 South Monroe Street Sheryll J. Indiaan: Tallahassee, Florida 32301

For Respondent, Ms. Virginia Daire, Esquire Department of Professional Assistant Attorney General Regulation, Board of Office of the Attorney General Chiropractic: Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The above consolidated cases are challenges to existing rule 21D- 11.001(2)(c), F.A.C. and proposed rule 21D-17.0045(1). Both reflect the policy of the Board of Chiropractic (Board) that candidates for licensure examination or for a training program must have graduated from a chiropractic college with regional and professional accreditation recognized by the U.S. Department of Education (USDOE) and the Council on Postsecondary Accreditation (COPA). The petitioners/intervenor assert that the dual accreditation requirement is an invalid exercise of delegated legislative authority.

Respondent contends that the rules are valid and that the challengers lack standing to bring this action.

PRELIMINARY STATEMENT

Sherman College filed its initial petitions on March 11, 1993 pursuant to Sections 120.54(4) and 120.56, F.S. The two cases were consolidated for consideration in a single proceeding. On April 26, 1993, after oral argument, the prior Hearing Officer granted Respondent's motion to dismiss for lack of standing, and granted Sherman College leave to file amended petitions within ten days. Amended petitions were filed on May 6, 1993 with more specific and expanded allegations of Petitioner's standing.

On May 7, 1993, Petitioner filed a motion to join Sheryll Indiaan, a graduate of Sherman College, as a party. The affidavit of Sheryll Indiaan alleges she was denied the right to take the Florida Chiropractic examination in April 1992.

The Board responded to the amended petitions and motion to join with a renewed motion to dismiss and objection to the requested joinder. On May 28, 1993 a telephone hearing was conducted on all pending motions, and an order was entered granting the motion to join party in the section 120.56 proceeding; denying joinder in the section 120.54 proceeding, but permitting intervention; denying Respondent's motion to dismiss for lack of jurisdiction; and reserving ruling on Respondent's motion to dismiss for lack of standing pending Petitioners' proof of standing allegations at the formal hearing in the cases. For reasons more specifically addressed below, Respondent's motion to dismiss for lack of standing is DENIED.

At the final hearing on June 7, 1993, Petitioner, Sherman College, presented the testimony of Dr. Thomas Gelardi and Dr. Louis W. Bender. The testimony of Ronald Hoffman, D.C. was presented through a deposition received in evidence as Petitioner's exhibit 15. Petitioner's exhibits Number 1-20 were received in evidence, with the exception of Petitioner's exhibit Number 19, a newsletter, rejected as hearsay and inherently unreliable.

Sheryll Indiaan did not testify nor appear at hearing, except through counsel.

Respondent, Board of Chiropractic, presented the testimony of Dr. Ralph Miller, Diane Orcutt, and (through deposition, exhibit Number 21) Dr. Dorothy C. Fenwick. The following Respondent's exhibits were received in evidence: Number 5-13, 15, 16, 19, 21 and 22. Exhibits Number 14 and 20 were offered and marked for identification, but were rejected as hearsay, and (as to Number 20, a document dated 1993) unrelated to the rules at issue.

Also admitted into evidence were Joint exhibits Number 1-6.

The transcript of proceedings was filed, and Sherman College and the Board filed proposed final orders. Sheryll Indiaan filed a notice of adoption of Sherman College's proposed order. The findings of fact proposed by the parties are addressed in the attached appendix.

FINDINGS OF FACT

1. Petitioner, Sherman College of Straight Chiropractic, is a chiropractic college located in Spartanburg, South Carolina. It is accredited by the Southern Association of Colleges and Schools (SACS), a regional accreditation agency that is recognized by the U.S. Department of Education (USDOE) and the Council on Postsecondary Accreditation (COPA). Sherman College is also accredited by the Southern Conference of Straight Chiropractic Associations (SCASA), a professional accreditation agency which formerly was recognized by USDOE, but has never been recognized by COPA.

   
   

2. Sheryll Indiaan is a graduate of Sherman College who applied for examination and licensure as a chiropractic physician under rule 21D- 11.001(2)(c), F.A.C. On April 7, 1992 the Board of Chiropractic (Respondent, or Board) issued an order of intent to deny the application. After denying Dr. Indiaan's request for formal administrative hearing and conducting an informal hearing on December 10, 1992, the Board issued its final order of denial on March 3, 1993. That order is on appeal to the First District Court of Appeal.

   
   

3. The basis for the Board's denial of Dr. Indiaan's application as stated in its final order is:

   
   

   ...as a matter of law, Sherman did not meet the requirements of section 460.406(1)(c), F.S., because it had only regional or institutional accreditation by USDOE and COPA and it did not have professional or specialized accreditation by an agency recognized by USDOE and COPA.

   
   

   (Final Order entered March 3, 1993)

   
   

4. Section 460.406(1)(c), F.S. was amended in 1990, as follows:

   
   

   460.406 Licensure by examination.--

   
   

   (1) Any person desiring to be licensed as a chiropractic physician shall apply to the department to take the licensure examination.

   * * *

   The department shall examine each applicant who the board certifies has:

   * * *

   (c) Submitted proof satisfactory to the department that he is a graduate of a chiropractic college accredited by, or has status with an agency or its successor which is recognized and approved by, the U.S. Office of education or and the Council on Postsecondary Accreditation or by the department, provided that the department applies the same standards used by the U.S. Office of Education which are applicable to this state when approving an agency. In evaluating any application for approval as an accrediting agency, the department shall give full recognition to the different philosophies of chiropractic prevailing in the profession and shall not reject any application solely because the accrediting agency is an adherent of one such philosophy as distinguished from another. No application for a license to practice chiropractic shall be denied solely because the applicant is a graduate of a chiropractic college that subscribes to one philosophy of chiropractic as distinguished from another. Any application for approval filed by any accrediting agency shall be acted upon by the department within 180 days of the filing of the application.

   
   

5. The policy of the Board, as reflected in the Indiaan denial order, was first formulated and applied in 1991, after the Board was informed of the amendment to section 460.406, F.S. Six Sherman College graduates were told, the day before the March examination, that they would not be permitted to sit for the examination. After a follow-up emergency meeting, the Board voted to allow the students to take the examination, but that licensure would be withheld pending verification of Sherman College's accreditation. Prior to this action, Sherman College's graduates had been allowed to take the examination.

   
   

6. On August 8, 1991, the Board considered argument and testimony and voted to adopt its policy of requiring both regional and professional accreditation. That policy is the basis for the rule amendments which are the subject of this proceeding.

   
   

7. Rule 21D-11.001(2), F.A.C. provides requirements for application for licensure examination. The amendment, published on August 21, 1992, provides:

   
   

   21D-11.001 Application for Licensure Examination.

   1. No change.

   2. No change.

      1. No change.

      2. No change.

      3. Are graduates of a chiropractic college accredited by, or has (sic) status with an

         agency, or its successor, which is recognized and approved by the United States Department of Education, and the Council on Postsecondary Accreditation or by the Department of Professional Regulation, provided that the Department of Professional Regulation applies the same standards used by the United States Department of Education which are applicable to the State of Florida when approving an agency. For the purpose of determining whether a chiropractic college is recognized and approved by the United States Department of Education and Council on Postsecondary Accreditation, the Board will require the applicant to show not only regional accreditation but also professional accreditation of the chiropractic college from which the applicant graduated.

         
         

         When no hearing was requested, the rule became effective.

         
         

8. Notice of amendment to rule 21D-17.0045(1), F.A.C. was published on February 17, 1993. That rule addresses requirements for an individual to enter a chiropractic physician training program. The proposed amendment provides as follows:

   
   

   21D-17.0045 Chiropractic Physician Candidate Training Program. (1) For the purpose of this rule, a "chiropractic physician candidate" is defined as an individual who has received his/her degree in chiropractic from a chiropractic college accredited by, or has status with which an agency or its successor which is recognized and approved by the U.S. Office of Education and the Council on Postsecondary Accreditation or by the department, provided that the department applies the same standards used by the U.S. Office of Accreditation which are applicable to this state when approving an agency. To demonstrate recognition and approval by the

   U.S. Office of Education and the Council on Postsecondary accreditation, a candidate must show that the chiropractic college from which the candidate received his/her degree, maintained both regional and professional accreditation.

   
   

9. Sherman College has regional, but not professional accreditation, recognized by both USDOE and COPA. USDOE and COPA each recognize regional and professional accrediting agencies.

   
   

10. Accreditation, both regional and professional, is a quality assurance process for educational institutions. While the focus of regional versus professional accreditation might be different, for a single purpose institution such as a Bible college, business school or chiropractic school, the difference is negligible. This testimony by Ralph G. Miller, executive vice president of

    the Council on Chiropractic Education (CCE), Respondent's expert on accreditation, is revealing:

    
    

    Q [by Ms. Daire] Is there a difference between regional or institutional accreditation from specialized or programmatic specialized accreditation?

    
    

    A [by Dr. Miller] You know, let me state a paradox in accreditation. The paradox is they are the same, but they are different.

    
    

    Q Will you please explain?

    
    

    A The form is the same, the process, and this is foisted by agreement of the associations upon the organizations and also by societal need as well as in these cases,

    U.S. DE and COPA. The differences come in the substantive aspects of what is required of the professional or programmatic areas versus the institutional or the regional. The institutional and regional are almost synonymous. In fact, they are.

    
    

    In some cases you'll have single-purpose institutions, such as Bible colleges, theology schools, some business, the association of private schools, business schools. These are single-purpose institutions not recognized by the regionals so they sort of dangle out there, and COPA has recognized them as a special unit, but

    U.S. DE does it a little differently.

    
    

    Q Okay. I don't know if you have answered my question, but is regional accreditation different from that of professional accreditation not with regard to process and procedure but with regard to the substance?

    
    

    A Yes, substance.

    Q The substance is different? A The substance is different? Q How is it different?

    A I think there is a societal aspect when one must consider when we review professional accreditation and that is, assurance of quality in the professional

    areas. The professional associations usually speak to this in a variety of ways, some call them functions; other call them standards; other call it essentials.

    The regionals have broadly stated standards which look at the institution as a whole to ascertain quality of academic ability, to assure that the institutions are

    doing what they are saying but not with the specificity as the professional association may, and I'm not saying that they are any less effective.

    Q Is there a need for both types of accreditation?

    A Yes, there is.

    Q What is the need that is met by institutional or regional accreditation?

    A It's assurance of the quality of education of our young people that go through the various disciplinary programs of history and sociology and possibly -- I can't think some of the sciences, chemistry, these various disciplines that need, society needs insurance.

    
    

    We don't have a governmental agency, if you would, such as the Ministry of Education that reviews these. So this has been a voluntary and very effective part of the post

    secondary accreditation over 100 to 125 years.

    * * *

    Q Is there a difference in site team visits professional and institutional, or are they the same?

    A In form they are the same, but in substance they can be very similar.

    Q Tell me about how they are the same in form.

    A They are the same in terms of the process, the kinds of -- the team effort, possibly the composite review of the standards and the process they have in ascertaining whether or not the institution is doing what it says it's doing. But the focus with the professional organizations comes in the area of the clinical component or that component dealing with the specific professional, profession need ahead.

    (transcript, pp 220-223)

    
    

11. Louis W. Bender was qualified as an expert in accreditation matters on behalf of Petitioner. He is an accreditation consultant who has served on regional accreditation review teams and on a review team for SCASA, a professional accreditation agency. In his experience, the regional and professional agencies alike determine whether the programs being taught are preparing students for employment in their field. This includes review of all aspects of the educational program, from the course work to the clinical. A regional review team for a single purpose institution such as Sherman College would include individuals with knowledge of the curriculum in the chiropractic and the general education area. Members on the team would include individuals in the field being reviewed, like chiropractors.

12. The SACS accreditation team that evaluated Sherman College included chiropractors and academicians from chiropractic colleges with professional accreditation. They evaluated the clinical program and curriculum leading up to the clinical program and commented on it in their review.

    
    

13. The debate over relative merits of professional versus regional accreditation is mirrored in the debate over "straight" versus "mixer" philosophy of chiropractic. Simply described, the straight chiropractic professional concentrates on remedying subluxations (misalignments) of the spine as a means to good health. The "mixer" professional is involved in a wider range of health care services. Sherman College is a "straight" chiropractic institution, as reflected in its name, but it still recognizes that state licensing requirements throughout the country mandate the teaching of courses beyond straight practice; the college offers those courses to enable its students to pass state examinations and comply with state laws.

    
    

14. Section 460.406(1)(c), F.S. expressly forbids the denial of an application for licensure or examination based on the preference of one philosophy over another. Petitioners contend that the rule amendments at issue violate that prohibition.

    
    

15. The Council on Chiropractic Education (CCE) is the only chiropractic professional accrediting agency that is recognized by both USDOE and COPA. Thus, CCE accreditation is required for compliance with the rule amendments.

    Sherman College is not accredited by CCE but has applied for that accreditation. CCE does accredit programs that ascribe to the straight philosophy and has rejected accreditation to mixer institutions. Petitioners' claim of discrimination is not substantiated.

    
    

16. Sherman College's claim that it is substantially affected by the rule amendments is supported by the weight of evidence. Before the Board voted to discontinue allowing Sherman college graduates to take the licensure examination the college had approximately 20 students from Florida enrolled. That enrollment has dropped now to a single student out of a total of approximately

    132 students. There are approximately 83 alumni of Sherman College practicing in Florida who could otherwise refer students to the college. An institution whose students are barred from practice in a state loses reputation and suffers economic loss, not just in lost tuition and fees but also through loss of donations from alumni. Sherman College receives an average of $400 per year per graduate donations. Dr. Thomas Gelardi, the president and founder of Sherman College reasonably estimates that it loses several thousand dollars a month, primarily because of the rules' impact on its enrollment.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings (DOAH) has jurisdiction in these consolidated proceedings pursuant to sections 120.54, 120.56 and 120.57, F.S.

    
    

18. Dismissal of the original petition filed pursuant to section 120.54(4), F.S., with leave to amend did not divest the DOAH of jurisdiction. Failure to permit amendment would have been an abuse of discretion. All Risk Corporation of Florida v State Department of Labor and Employment Security, 413 So2d 1200 (1st DCA 1982) Sherman College filed its amended petition within the deadline established by the Hearing Officer and pled in appropriate detail the necessary elements to establish its standing.

19. At hearing, Sherman College proved its standing to challenge the rule amendments at issue. That is, it is "substantially affected" pursuant to sections 120.54(4) and 120.56(1), F.S.

    
    

20. Respondent's reliance on Fla. Medical Association v. Department of Professional Regulation, 426 So2d 1112 (Fla. 1st DCA 1983), for its argument that Sherman College lacks standing, is misplaced. That case and a long line of cases which follow it aptly distinguish standing in a rule-challenge proceeding from standing in cases in which the grant of a permit or license is at issue. See, for example Department of Professional Regulation v. Fla. Dental Hygienist Assn., 612 So2d 646 (Fla. 1st DCA 1993).

    
    

    While we readily accept the premise that physicians, opthalmologists in particular, have no "legally recognized interest in being free from competition..." [citation deleted], it by no means follows that the assertion of interest economic in nature can never furnish the basis for standing to challenge proposed or adopted agency rules. (Fla. Medical Assn., supra, at 1115)

    
    

    We are further reminded by the court that in State Department of Health and Rehabilitative Services v. Alice P., 367 So2d 1045 (Fla. 1st DCA 1979) it recognized a physician had standing pursuant to section 120.54(4), F.S. when he demonstrated that the agency's cut-off of funds for elective abortions decreased the number of patients served by the abortion clinic of which he was the director.

    
    

    Sherman College suffers the same type of loss; it loses students who are barred from the Florida examination, just as the physician in Alice P. lost patients who were denied funding for abortions. Moreover, it is the college which seeks accreditation, to maintain its certificate of quality, to sustain its reputation, to attract future students and to help insure professional standing for its existing students. The college's interest, in that sense, is more immutable than any student's.

    
    

21. Since the standing of Sherman College is established, it is unnecessary to further address the standing of its former student, Ms. Indiaan. Although she did not testify at hearing, the facts stated in her affidavit attached to the motion to join party are uncontroverted.

    
    

22. A proposed or existing rule is an invalid exercise of delegated legislative authority if:

    
    

    1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

    2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

    3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

    4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

    5. The rule is arbitrary or capricious.

    
    

    Section 120.52(8), F.S.

    
    

23. Section 460.406, F.S. requires only that an applicant be a graduate of a chiropractic college accredited by an agency recognized and approved by the USDOE and the COPA. The rule amendments at issue expand the statute and add the requirement that accreditation must be both regional and professional. There is no authority for that requirement.

    
    

24. In adopting its nonrule policy, and in adopting the rule amendments, the Board was apprised of, and relied on the case, Barker v. Board of Medical Examiners, 428 So2d 720 (Fla 1st DCA 1983). The appellant, Barker, was a graduate of a school of osteopathic medicine who applied for licensure by examination under Chapter 458, F.S. As defined by the court, the issue was whether the appellant "[was] a graduate of a medical school or college maintaining a standard and reputation approved by the board pursuant to section 458.311..." (id, p. 720) Section 458.311, F.S. required that the medical school or college be recognized and approved by an accrediting agency recognized by the U.S. Office of Education. The school from which appellant graduated was approved by an accrediting agency recognized by the U.S. Office of Education, but because it was not accredited by the American Medical Association, the Board found that the school was not a medical school, but rather was a school of osteopathic medicine.

    
    

    In upholding the action of the Board of Medical Examiners, the court found ample legislative authority for the distinction between a medical school and a school of osteopathic medicine. The issue before the court was not, therefore, the grafting of an additional accreditation requirement but rather it was the Board's adoption of a definition of "medical school". The legislature provided authority for that distinction by enacting separate statutes regulating the two professions and providing separate and distinct definitions of the two practices. The court found convincing legislative intent that the two professions have separate disciplines and educational requisites. (Id, p. 724)

    
    

25. In contrast, there is absolutely no legislative intent, evident or reasonably inferred, to support a distinction between regional and professional accrediting agencies and to require that an applicant graduate from a college approved by both types. The change of the word "or" to "and" in section 460.406, F.S. in 1990 does not supply that intent. Both before and after the statutory amendment, both types of accreditation existed and both types were approved by the USDOE and COPA.

    
    

26. The rule amendments are not supported by reason or logic. The preponderance of evidence presented in this proceeding reveals that for chiropractic education, there is not a functional nor qualitative distinction between professional and regional accreditation. Both types involve significant and pervasive review of the institution's preparation of its students for professional practice.

    
    

27. The Petitioners met their burden of proving that the rule amendments are arbitrary and capricious and enlarge the specific provision of law implemented, and are therefore invalid.

ORDER

Based on the foregoing, it is hereby, ORDERED:

The adopted rule amendment to rule 21D-11.001(2)(c), F.A.C. and the proposed amendment to rule 21D-17.0045(1), F.A.C. are invalid exercises of delegated legislative authority.

DONE AND ORDERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

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 13th day of October, 1993.

APPENDIX TO FINAL ORDER, DOAH CASE NOS. 93-1476RP and 93-1477RX

The following constitute specific rulings pursuant to section 120.59(2), F.S., on the findings of fact proposed by the parties:

Petitioners' Proposed Findings

1. Adopted in substance in paragraph 7.

2. Adopted in substance in paragraph 8.

3. Adopted by implication in paragraph 4. 4.-5. Adopted by implication in paragraph 5.

1. Adopted in paragraph 6.

2. Rejected as unnecessary.

8.-12. Adopted in summary in paragraph 5.

13. Adopted in paragraph 6. 14.-19. Rejected as unnecessary.

20. Adopted in paragraphs 7. and 8. 21.-25. Rejected as unnecessary.

26.-51. Rejected as unnecessary or irrelevant. 52.-53. Adopted in summary in paragraph 13.

1. Rejected as unnecessary.

2. Adopted in paragraph 13.

3. Adopted in part in paragraph 15; otherwise rejected as unnecessary. 57.-58. Rejected as unnecessary, or contrary to the greater weight of

evidence.

1. Rejected as cumulative and unnecessary.

2. Adopted in paragraph 10. 61.-62. Rejected as unnecessary.

63.-65. Adopted in substance in paragraphs 10-12.

1. Rejected as contrary to the weight of evidence.

2. Rejected as cumulative and unnecessary. 68.-75. Rejected as argument and unnecessary.

   
   

   Respondent's Proposed Findings of Fact

   
   

   1. Adopted in paragraph 7.

   2. Adopted in paragraph 8. 3.-4. Rejected as unnecessary.

1. Adopted in paragraphs 3 and 4.

2. Adopted in paragraph 1.

3. Adopted in paragraph 15.

4. Adopted in paragraph 2.

5. Adopted in paragraph 14. 10.-11. Rejected as unnecessary.

1. Adopted in paragraph 13.

2. Rejected as unnecessary.

3. Adopted in substance in paragraph 11.

4. Rejected as unnecessary. The claim of discrimination is rejected.

5. Adopted in part in paragraphs 3 and 5; otherwise rejected as unnecessary.

6. Adopted in paragraph 4.

7. Rejected as unnecessary.

8. Adopted in summary in paragraph 9.

9. Rejected as unnecessary.

10. Adopted in substance in paragraph 10.

22.-23. Rejected as contrary to the greater weight of evidence.

1. Adopted in paragraph 1.

2. Rejected as cumulative and unnecessary.

3. Adopted in paragraph 15.

4. Adopted in substance in paragraph 15. 28.-33. Rejected as unnecessary.

1. Rejected as unsubstantiated by competent, credible evidence.

2. Adopted by implication in paragraph 1.

3. Rejected as argument or contrary to the evidence. 37.-38. Adopted in substance in paragraph 2.

39. Rejected as unnecessary.

COPIES FURNISHED:

Diane Orcutt, Executive Director Department of Business and

Professional Regulation Board of Chiropractic

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Gerald B. Sternstein, Esquire Frank P. Rainer, Esquire RUDEN, BARNETT, MCCLOSKY,

SMITH, SCHUSTER & RUSSELL, P.A.

215 South Monroe Street, Suite 815 Tallahassee, Florida 32301

Virginia Daire, Esquire Assistant Attorney General Office of the Attorney General Department of Legal Affairs The Capitol, PL-01

Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rule of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL NOT FINAL UNTIL TIME EXPIRES TO REGULATION, BOARD OF FILE MOTION FOR REHEARING AND

CHIROPRACTIC, DISPOSITION THEREOF IF FILED

Appellant, CASE NO. 93-3636

DOAH CASE NO. 93-1476RX

SHERMAN COLLEGE OF STRAIGHT CHIROPRACTIC and SHERYLL J. INDIAAN,

Appellees.

/ Opinion filed November 16, 1995.

An appeal from a final order of the Division of Administrative Hearings. Mary Clark, Hearing Officer.

Robert A. Butterworth, Attorney General, and Virginia Daire and Michael Mone, Assistant Attorneys General, Tallahassee, for Appellant.

Gerald B. Sternstein and Frank P. Rainer of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Tallahassee, for Appellees.

PER CURIAM.

The Department of Professional Regulation, Board of Chiropractic, appeals a final order concluding that the adopted amendment to rule 21D-11.001(2)(c), Florida Administrative Code, and the proposed amendment to rule 21D-17.0045(1) are invalid exercises of delegated legislative authority. The order also determined that Sherman College had standing to challenge the subject rule amendments because it proved that it is Substantially affected by this agency action. s 120.54(4) and 120.56(1), Fla. Stat. (1993). Because we hold that the hearing officer correctly determined that the rule amendments are invalid exercises of legislative authority, that Sherman College had standing to challenge these rules, and that the Division had jurisdiction to entertain the challenge to rule 21D-17.0045(1), we affirm the order. we do not find it necessary to address the issue on cross appeal.

On August 21, 1992, the Department published notice of amendment to rule 21D-11.001(2), entitled "Application for Licensure," which became effective when no hearing was requested regarding the amendment. The amendment adds the following language to Subparagraph (2)(c) of the rule:

For the purpose of determining whether a chiropractic college is recognize and approved by the United States Department of Education [USDOE] and the Council on Postsecondary Accreditation [COPA], the Board will require the applicant to show not only regional accreditation but also professional accredita- tion of the chiropractic college from which the applicant graduated

On February 17, 1993, the Department published notice of proposed amendment to rule 21D-17.0045, entitled "Chiropractic Physician Candidate Training Program," which proposed to add the following language to Subparagraph (1):

To demonstrate recognize and approval by the

U.S. Office of Education and the Council on Post-secondary accreditation, a candidate must show that the chiropractic college from which the candidate received his/her degree, maintained both regional and professional accreditation.

On March 3, 1993, the Board entered a final order denying Sheryll Indiaan's application for examination and licensure as a chiropractic physician. The application showed that Indiaan is a graduate of Sherman College, a college of Straight Chiropractic located in Spartanburg, South Carolina. As grounds, the order stated that Sherman College did not meet the requirements of the recent amendment to subsection 460.406(1)(c), because it had only regional or institutional accreditation by USDOE and COPA but not professional or specialized accreditation by an agency recognized by USDOE and COPA. On March 11, 1993, Sherman College filed separate petitions pursuant to subsection 120.54(4) and subsection 120.56(1), Florida Statutes (1993), challenging the validity of the amendments to rules 21D-11.001(2)(c) and 21D-17.0045(1) on several grounds, including that they are invalid exercises of legislative authority and violate the equal protection and substantive due process provisions of the United States and Florida constitutions.

After final hearing, the hearing officer entered a final order ruling that Sherman College had standing and that the adopted amendment to rule 21D- 11.001(2)(c) and the proposed amendment to rule 21D-17.0045(1) were invalid exercises of delegated authority. The hearing officer made the following findings of fact:

13. The debate over relative merits of professional versus regional accreditation is mirrored in the debate over "straight" versus "mixer" philosophy of chiropractic. Simply described, the straight chiropractic professional concentrates on remedying subluxations (misalignments) of the spine as

a means to good health. The "mixer" profess- ional is involved in a wider range of health

care services. Sherman College is a "straight" chiropractic institution, as reflected in

its name, but it still recognizes that state licensing requirements throughout the country mandate the teaching of courses beyond straight practice; the college offers those courses to enable its students to pass state examinations and comply with state laws.

14. Section 460.406(1)(c), F.S. expressly forbids the denial of an application for licensure or examination based on the preference of one philosophy over another. Petitioners contend that the rule amendments at issue violate that prohibition.

16. Sherman College's claim that it is substantially affected by the rule amend- ments is supported by the weight of evidence. Before the Board voted to discontinue allowing Sherman college graduates to take the licen- sure examination the college had approximately

20 students from Florida enrolled. That enroll- ment has dropped now to a single student out of a total of approximately 132 students. There are approximately 83 alumni of Sherman College practicing in Florida who could otherwise refer students to the college. An institution whose students are barred from practice in a state loses reputation and suffers economic loss,

not just in lost tuition and fees but also through loss of donations from alumni. Sherman College received an average of $400 per year per graduate donations. Dr. Thomas Gelardi, the president and founder of Sherman College reasonably estimates that it loses several thousand dollars a month, primarily because

of the rules impact on its enrollment.

The hearing officer made the following conclusions of law:

1. At hearing; Sherman College proved its standing to challenge the rule amendments at issue. That is, it is "substantially affected" pursuant to sections 120.54(4) and 120.56(1), F.S.

2. Respondent's reliance on Fla. Medical Association v. Department of Professional Regulation, 426 so2d 1112 (Fla. 1st DCA 1983), for its argument that Sherman College lacks standing, is misplaced. That case and a long line of cases which follow it aptly distinguish standing in a rule-changing proceeding from standing in cases in which the grant of a permit or license is at issue. See, for example,

Department of Professional Regulation v. Fla. Dental Hygienist Assn., 612 So2d 646 (Fla. 1st DCA 1993)

while we readily accept the premise that physicians, ophthalmologists in particular, have no "legally recognized interest in being free from competition..." [citation deleted], it by no means follows that the assertion of interest economic in nature can never furnish the basis for standing to challenge proposed or adopted agency rules. (Fla. Medical Assn., supra, at 1115)

We are further reminded by the court that

in State Department of Health and Rehabilitative Services v. Alice, 367 So2d 1045 (Fla. 1st DCA 1979) it recognized a physician had standing pursuant to section 120.54(4), F.S. when he demonstrated that the agency's cutoff of

funds for elective abortions decreased the number of patients served by the abortion clinic of which he was the director. Sherman College suffers the same type of loss; it loses students who are barred from the Florida

examination, just as the physician in Alice P. lost patients who were denied funding for abortions.

Moreover, it is the college which seeks accreditation, to maintain its certificate of quality, to sustain its reputation, to attract future students and to help insure professional standing for its existing students. The college's interest, in that sense, is more immutable than any student's.

23. Section 460.46, F.S. requires only that an applicant be a graduate of a chiropractic college accredited by an agency recognized and approved by the USDOE and the COPA. The rule amendments at issue expand the statute and add the require- ment that accreditation must be both regional

and professional. There is no authority for that requirement.

1. . . . [T]here is absolutely no legislative intent, evident or reasonably inferred, to support a distinction between regional and professional accrediting agencies and to require that an applicant graduate from a college approved by

   both types. The change of the word "or" to "and" in section 460.406, F.S. in 1990 does not supply that intent. Both before and after the statutory amendment, both types of accreditation existed and both types were approved by the USDOE and COPA.

2. The rule amendments are not supported by reason or logic. The preponderance of evidence presented in this proceeding reveals

   that for chiropractic education, there is not a functional nor qualitative distinction between professional and regional accreditation. Both types involve significant and pervasive review of the institution's preparation of its stu- dents for professional practice.

3. The Petitioners met their burden of proving that the rule amendments are arbit- rary and capricious and enlarge the specific provision of law implemented, and are therefore invalid.

The record contains competent, substantial evidence to support the findings of fact upon which the hearing officer based her conclusions of law. Finding no error in the conclusions of law, we affirm the order under review.

AFFIRMED.

ZEHMER, C.J., DAVIS, J., and WENTWORTH, Senior Judge, CONCUR.

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Mary Clark, Hearing Officer Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

SHERMAN COLLEGE OF STRAIGHT CHIROPRACTIC

and

SHERYLL J. INDIAAN

vs. Case No. 93-3636

Your Case No. 93-1476RP, 93-1477RX

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF CHIROPRACTIC

SHERMAN COLLEGE OF STRAIGHT CHIROPRACTIC, and SHERYLL J. INDIAAN

vs.

DEPARTMENT OF PROFESSIONAL REGULATION, ET AL.

/

The attached opinion was rendered on November 16, 1995

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 E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 4th day of December, 1995.

Jon S. Wheeler

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 93-001476RP

Orders for Case No: 93-001476RP