STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA MEDICAL ASSOCIATION ) and THE PHARMACEUTICAL )

MANUFACTURERS ASSOCIATION, )

)

Petitioners, )

and )

) FLORIDA CONSUMER ACTION COUNCIL )

FOR MENTAL HEALTH, INC., and ) CASE NO. 93-3874RP HUMAN RIGHTS ADVOCACY COMMITTEE, )

)

Intervenors, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

ORDER ON DRAW OUT

Pursuant to notice, a proceeding in the above-styled matter was convened before the undersigned on November 15-19, 1993, in Tallahassee, Florida.

The Department of Health and Rehabilitative Services, predecessor agency in this matter to Respondent Agency For Health Care Administration, published Rule 10P-4.250, Florida Administrative Code, on June 4, 1993, dealing with reimbursement for prescribed outpatient drug services under Florida's Medicaid program. Generally, the proposed rule would require certain Medicaid providers to obtain prior authorization before certain listed drugs would be approved for payment.

The Department of Health and Rehabilitative Services commenced a public hearing on the proposed rule on June 28, 1993. At the hearing, Petitioners requested a draw-out hearing pursuant to Section 120.54(17), Florida Statutes. The request was granted and the matter subsequently forwarded to the Division of Administrative Hearings (DOAH) for conduct of formal administrative proceedings.

The draw-out proceeding in this case was conducted as a non-adversarial hearing to provide Respondent with an opportunity to further educate itself about the concerns of Petitioners and Intervenors.

Notably, Section 120.54(17), Florida Statutes, requires that the agency suspend rule-making proceedings and "covene a separate proceeding" under provisions of a Section 120.57, Florida Statutes. There is no imperative in Section 120.54(17) that non-adversarial proceedings, nominally governed by provisions of Section 120.57(2), Florida Statutes, be conducted by DOAH.

However, an informal Section 120.57(2) proceeding has been conducted before the Division of Administrative Hearings wherein Petitioners and Intervenors have been provided an opportunity to present evidence and create a record for the agency's further consideration in the rule-making process. That record will also be incorporated in the record of the final hearing of the yet-to-be- convened rule challenge, a proceeding to be conducted pursuant to Section 120.54(4), Florida Statutes.

While not unmindful of the parties' possible expectations that findings or observations would be provided by the undersigned, reality dictates that, upon further reflection and consideration, a jurisdictional basis pursuant to Section 120.57(1), Florida Statutes, for specific findings of fact by a DOAH hearing officer does not exist in this matter.

Accordingly, further proceedings before DOAH in this case are dismissed; the DOAH file in this case is closed; and the record of the proceedings held to date in this matter is returned to the agency for consideration and incorporation into the on-going rule promulgation process. Any consideration of that record by the undersigned must be accomplished within the parameters of the parties' stipulation of the record into the future rule challenge proceeding.

DONE AND ORDERED this 2nd day of March, 1994, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 2nd day of March, 1994.

COPIES FURNISHED:

S. Stephen Turner Attorney at Law BROAD & CASSELL

P. O. Box 11300 Tallahassee, FL 32302

Roger R. Maas Attorney at Law

Agency for Health Care Administration

Building 6, Room 234

1317 Winewood Boulevard

Tallahassee, FL 32399-0700

Rowe Ellen Rogero Executive Director

Human Rights Advocacy Committee 1317 Winewood Boulevard

Bldg. 2, Room 121

Tallahassee, FL 32399-0700

Kristine Knab Cynthia D. Johnson Attorneys at law

Legal Services of North Florida 2119 Delta Boulevard

Tallahassee, FL 32303

Sam Power, Clerk Agency for Health Care

Administration

The Atrium, Ste 301

325 John Knox Road Tallahassee, FL 32303

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Building Tallahassee, FL 32399-0250

Docket for Case No: 93-003874RP

Orders for Case No: 93-003874RP