STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD NEIL FELDMAN )

)

Petitioner, )

)

vs. ) CASE NO. 93-6545RX

)

BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case in Tallahassee, Florida on January 18, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas Saieva, Esquire

Saieva & Walsh, P.A. 800 West DeLeon Street

Tampa, Florida 33606-2722

For Respondent: Allan Grossman, Esquire

Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent's Rule 21M-24.001(2)(f), F.A.C. is an invalid exercise of delegated legislative authority.

PRELIMINARY MATTERS

By Petition dated October 12, 1993, Dr. Feldman challenges the Board of Medicine's, (FBM), Rule 21M-24.001(2)(f), which bans advertising by physicians as false, deceptive or misleading if it states or implies the physician is a specialist in any aspect of practice unless he has received such recognition by a recognizing agency which, itself, is recognized by the American Board of Medical Specialities, (ABMS), or any other such recognizing agency as may receive future approval by the Board. The matter was forwarded to the Division of Administrative Hearings for hearing on the challenge and was initially assigned to Hearing Officer K. N. Ayers who, by Notice of Hearing dated November 19, 1993, set the matter for hearing on December 13, 1993.

In the interim, the parties filed a joint Motion for Continuance and by Order dated December 7, 1993, entered after a telephone conference call was held on that motion and Respondent's Motion For Protective Order, Hearing

Officer Ayers reset the matter for hearing on January 18, 1994, at which time it was held as scheduled by the undersigned to whom the matter had been transferred for hearing.

At the hearing, Petitioner presented no witnesses but introduced Petitioner's Exhibits 1 through 5. Included are the depositions of Drs. Michael Rask, a neurological orthopedic surgeon, and J. Lee Dockery, Executive Vice- president of the ABMS. Respondent presented the testimony of Dr. Marm M. Harris, Executive Director of the Florida Board of Medicine, and M. Catherine Lannon, Section Chief of the Administrative Law Section, Office of the Attorney General, State of Florida, and, prior to December, 1993, attorney for the Board of Medicine at the time the challenged rule was adopted. The parties jointly admitted Joint Composite Exhibit A, the American Board of Medical Specialties' Annual Report and Reference Handbook, 1987.

A transcript of the proceedings was submitted. Both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Final Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the FBM, Respondent herein, was the state agency responsible for the licensing of medical doctors in Florida and the regulation of the practice of medicine in this state.

   Petitioner is a medical doctor licensed by the Board to practice in Florida.

   
   

2. The parties stipulated to the following facts, and it is so found:

   
   

   1. The Florida Board of Medicine employs no specific criteria for the recognition of practitioners as specialists for advertising purposes other than the rule.

   2. The Board of Medicine has not reviewed the activities of the ABMS as it relates to

      its criteria for the recognition of specialists.

   3. The FBM has never adopted written standards, policies or guidelines governing the actions

      of the ABMS or their separately incorporated, financially independent member boards.

   4. The ABMS has never petitioned or applied to the FBM to be considered as a recognizing agency pursuant to Rule 61F6-24.001(2)(f), formerly rule 21M-24.001(2)(f).

   5. There are no written standards relating to qualifications for "recognizing agencies"

      as the term is used in the above-mentioned rule.

   6. Pursuant to the rule, the FBM designated specialty boards of the ABMS, a private organization, to be recognizing agencies without establishing any written standards or guidelines for the recognition of a physician as a specialist.

   7. The ABMS does not, itself, establish specific criteria standards or requirements for the certification of particular physician specialists. The ABMS utilizes guidelines and

      requirements established by separately incorporated, financially independent bodies known as specialty boards.

   8. The FBM has established no written standards, policies or guidelines to which the ABMS must adhere relating to the recognition of individual practitioners as specialists.

   9. The FBM has adopted no rules relating to the regulation or recognizing agencies as defined by the rule.

   10. The FBM has not established criteria relating to the qualification of non-ABMS organizations as recognizing agencies under the rule.

   11. The FBM has no input into the standards employed by the separately incorporated boards.

   12. There are no FBM rules requiring ABMS compliance.

   13. The FBM has no mechanism for review of

       the actions of either the ABMS or its separately incorporated boards.

   14. Regardless of standards employed by groups which recognize physicians as specialists, if the groups are not member organizations of the ABMS, advertising specialty achievements of these groups is not permitted under Florida law.

       
       

3. Petitioner has been licensed as a physician by the FBM since 1976. He has completed a residency program in orthopedics but has not been certified in this specialty by a member board of the ABMS. However, he identifies himself as a diplomate of the American Academy of Neurological and Orthopedic Surgeons on his letterhead on correspondence mailed from his office and on various correspondence sent to Associated Insurance Brokers Claims Management in regard to a patient. Though he claims he did not intend his letterhead identification as a board diplomate to be advertising, he acknowledged such designation enhanced his stature as an orthopedic surgeon and many insurance carriers approve higher patient charges for various specialists.

   
   

4. Thereafter, the FBM initiated disciplinary action against Petitioner on the basis that his "advertising" was in violation of rule 61F6-24.001(2)(f),

   F.A.C. which prohibited false, deceptive or misleading advertising, and which implied those conditions if the advertising stated or implied the physician was formally recognized as a specialist in a medical specialization unless such recognition was by an agency recognized by the ABMS or another FBM approved agency. Petitioner subsequently filed this challenge to that rule.

   
   

5. In the interim, a Division of Administrative Hearings Hearing Officer held a formal hearing on the disciplinary administrative Complaint and on December 20, 1993, entered a Recommended Order in which he found that Petitioner had disseminated the alleged letterhead and that constituted advertising. Since the specialty certification was by an agency not recognized by the ABMS or any other approved recognizing agency, Petitioner was in violation of the rule. The FBM was scheduled to act on the Recommended Order at its meeting to be held on February 4 - 6, 1994. Whether such action was taken, or the nature thereof are not known to the undersigned.

6. Dr. Michael Rask, a medical doctor licensed to practice in Oregon, California, Nevada, and Arizona, and certified in orthopedic surgery by an ABMS recognized board, is Chairman of the Board of the American Academy of Neurological and Orthopedic Surgeons, (Academy). The Academy is an educational, nonprofit, eleemosynary society of physicians and surgeons across America located in Las Vegas, Nevada. It has some international members. It is accredited by the American Federation for Medical Accreditation, (Federation), of which Dr. Rask is also the Chairman. The Federation has close to 50 specialty and sub-specialty boards in its membership, 35 of which are also members of the Academy. Membership in the Academy is neither illegal nor inconsistent with the lawful practice of medicine in Florida.

   
   

7. Petitioner, Dr. Feldman, has been a member of the Academy since 1980. The Academy has approximately 650 certified members. For certification in orthopedic surgery as a specialty, the Academy requires completion of a five year residency in that service, in addition to 3 years practice experience. Both a written and an oral examination are required. The tests are formulated by the Academy's national examination committee who are members of the Academy. Between 50 and 60 percent of the committee members are also certified by ABMS recognized specialty boards, but Dr. Rask was unable to identify the members without reference to the Academy's archives, which were not available. Failure

   rate on the examinations runs from 25 to 28 percent and Dr. Rask feels the tests are comparable to those administered by ABMS member boards.

   
   

8. The Academy publishes periodic medical journals edited by Dr. Rask as a part of its educational program and certifies continuing medical education courses accepted by both Texas and California as well as, "maybe some others."

   
   

9. The Academy specialty board criteria have been approved by the US Department of Labor which, by letter dated December 18, 1984, recognized the Academy as a "bona fide medical specialty board" and indicated its diplomates could be accorded status equivalent to that of ABMS diplomates in their respective fields. Educational organizations have also recognized the Academy including the International College of Surgeons, United States Section. Nonetheless, it has not been recognized by the ABMS nor has any other recognition board sought approval from the FBM during the period between 1980 through April 1993. Since that time, four requests, including one from the American Academy of Neurologic and Orthopedic Surgeons, have been received by the FBM but they have been held in abeyance pending FBM rulemaking activity to develop appropriate criteria for approval.

10. Rule 61F-24.001(2)(f), F.A.C., formerly 21M-24.01, F.A.C., which is challenged in this matter, was adopted by the FBM in 1980 and amended the same year. In 1988 it was again amended to require ABMS recognition of specialty boards which certified individual physicians. At the time of adoption of the rule and of the amendment thereto, the FBM members recognized the organization and purpose of the ABMS and intended it to be the recognition agency for specialty certification as it relates to physician advertising.

1. Dr. J. Lee Dockery has been Executive Vice-president of ABMS since July, 1991. Before that time he was in the private practice of medicine in Florida and a member of the Florida Board of Medicine. The ABMS is a nonprofit private organization not governmentally regulated, incorporated in Illinois. It is made up of 24 separately incorporated and financially independent specialty boards. There are approximately 126 other self-designated boards for the

   purposes of certification. The ABMS maintains no files on the standards of certification of these self-designated boards. According to Dr. Dockery, these self-designating boards are not accepted by the medical profession.

   
   

2. The independent specialty boards within the ABMS framework develop the criteria for admission to the certifying examinations they administer. They also develop the examinations, determine the examinations' validity, score them, and report the passing scores to the individual physicians, along with certificates of qualification.

   
   

3. The ABMS, on the other hand, is the agency which approves the establishment of a specialty or sub-specialty and the independent board for that specialty establishes the criteria and requirements for certification in that specialty. The ABMS does not prepare or grade specialty examinations nor does it review the results of the tests. It also does not establish the requirements for admission to specialty examinations. This is done by the individual certifying board.

   
   

4. There are uniform standards among the 24 member boards which relate to the completion of required educational programs under which that specialty was approved for authorization purposes. These standards may vary in terms of length of years of training required but not as to the accreditation of that training. All member specialty boards require initial specialty training for sub-specialties in addition to the training for initial certification in the specialty. Once a physician is certified based on the requirements in place at the time, he does not lose that certification if the requirements for certification are subsequently increased.

   
   

5. None of the fee paid by physicians to specialty boards is paid to the ABMS. The ABMS does not lobby, though it has, in some cases, given testimony before state medical boards concerning proposed legislation which, it feels, would inappropriately diminish the qualifications for certification, in order to insure the health of the public is protected.

   
   

6. There is an organization for osteopathic physicians similar to the ABMS. It is called the American Osteopathic Association. The American Academy of Neurological and Orthopedic Surgeons is not and never has been recognized by ABMS, nor has the American Federation for Medical Accreditation.

   
   

7. Using the term "diplomate" of an organization not affiliated with the ABMS is not improper since that term signifies only the passage of an examination and not certification of expertise. Also, placement of a credential in a cirriculum vitae is different from placing it in a letterhead. The issue is how the placement is to be used. Whereas the former has limited application, the latter may be widely disseminated.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

9. Under the provisions of Section 120.56(1), Florida Statutes, any person substantially affected by a rule may seek an administrative determination of the validity or invalidity of the rule based on the issue of whether the rule is a valid or an invalid exercise of delegated legislative authority.

10. Section 120.52(8), Florida Statutes, defines "invalid exercise of delegated legislative authority as:

    
    

    . . . 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:

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

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

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

    4. The rule is arbitrary or capricious.

       
       

11. The FBM derives its rulemaking authority from the provisions of Section 458.309, Florida Statutes, which also requires that rules promulgated by the FBM shall not be inconsistent with law. Petitioner urges that the instant rule under challenge violates the law in that it prohibits the "dissemination" of truthful information regarding a lawful activity. The evidence of record, coupled with a clear reading of the rule in question, reveals that is simply not so. There is absolutely no prohibition against a physician who properly enjoys the qualification to practice a specialty or who limits his practice to a specific type of service from telling anyone of this so long as proper and lawful methods of doing so are employed and/or so long as the agency which recognizes and certifies his specialty has been approved by the FBM.

    
    

12. The justification for limiting physician advertising can be found within the provisions of Section 458.301, Florida Statutes, wherein the Legislature has provided:

    
    

    The Legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The Legislature finds further that it is difficult for the public to make an informed choice when selecting a physician and

    that the consequences of a wrong decision could seriously harm the public health and safety.

    The primary legislative purpose in enacting this chapter is to ensure that every physician practicing in this state meets minimum requirements for safe practice. It is the legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

    
    

13. The Legislature also provided, in Section 458.331(1)(d), Florida Statutes, that any false, deceptive, or misleading advertising by a physician is a violation of Chapter 458 and is punishable by the Board. The rule in question purports to define, in clear and unambiguous terms, what, in this state, shall

    constitute "false, deceptive, or misleading advertising." Such action, properly taken, is within the Board's rulemaking authority as delegated by the Legislature. When an agency seeks to effect a properly delegated quasi- legislative action by rulemaking, that action must be considered in light of that function with deference given thereto. Agrico Chemical Company v. State,

    365 So.2d 759 (Fla. 1DCA 1978). When one seeks to challenge the agency's rule- making powers, he carries the burden of proving invalidity by a preponderance of the evidence. Dravo Basic Materials Company v. State, 602 So.2d 632 (Fla. 2DCA 1992).

    
    

14. Petitioner asserts the FBM has exceeded the Legislature's grant of rulemaking authority by, inter alia, delegating its legislatively prescribed responsibilities to other, to wit, the ABMS. This is not so. The FBM has, by its rule, defined what constitutes false, deceptive, or misleading advertising. In requiring physicians to allow public notice of certification to that granted only by those specialty boards recognized by the authority it accepts as fully qualified to do so, the FBM has complied with not only the letter but also both the spirit and the intent of the legislative mandate under which it drafted its rule. Petitioner has come forth with no evidence or testimony to show the Board's action was excessive or not within the authority delegated to it.

    
    

15. Petitioner also argues the rule's invalidity based on what he contends is the FBM's improper enlargement, modification or contravention of the specific provisions of the enabling statute. Again, aside from an argument that the Board's action was improper, and the somewhat self-serving testimony from Dr. Rask that both the Academy and the Federation are respected and accepted accrediting bodies, Petitioner presented no evidence that FBM's reliance on ABMS recognition is inappropriate or beyond the scope of the supporting legislation. To the contrary, the evidence of record clearly demonstrates that the reliance on the recognition of the ABMS is consistent with the stated legislative intent to protect the public, and does not render the rule invalid.

    
    

16. Petitioner further challenges the rule's validity on the claimed basis that it is vague, fails to establish adequate standards for agency decisions or vests unbridled discretion in the agency. To the contrary, the specific portion of the rule under challenge is, rather than vague, quite specific. Simply put, it clearly defines as misleading physician advertising which states or implies that the physician has received formal recognition as a specialist unless he has, in fact, received such formal recognition from a recognizing agency that is approved by the Board of Medicine. Thereafter, a Board approved agency is defined as one which is recognized by ABMS or any other recognizing agency which may be approved by the Board. In that regard, the evidence is clear that at the present time, the only approved recognizing agency is the ABMS. Those few applications for approval by other recognizing agencies, received recently, have been held in abeyance pending revision of the rule. The evidence is also clear that the criteria for approval utilized by the ABMS are known and have not been challenged. No discretion is left to the Board which is not clearly defined in the rule and it cannot reasonably be said that such discretion is unbridled.

    
    

17. The final ground for challenge urged by Petitioner is that the rule is invalid because it is arbitrary and capricious. It is well established in the law that a rule is arbitrary only if it is not supported by fact or logic, and capricious only if it is enacted without thought or reason. Conversely, if an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it is neither arbitrary nor capricious. Dravo Basic Materials Company v. State, 602 So.2d 632 (Fla. 2DCA 1992).

18. In the instant case, the FBM enacted its rule under the statutory mandate to enact such rules and requirements within its regulatory powers as necessary to protect the health, safety and welfare of the public. The FBM recognized that while a physician's accurate representation of recognition as a specialist may be neither false nor deceptive, it may be misleading in that such a representation carries with it the additional weight of advanced qualification and achievement. If such recognition is by an agency, the standards of which do not meet those of the FBM, it is entirely reasonable to believe the public may be misled by such representation. In this case, the fact that the Academy may have been approved by an agency of the United States government is irrelevant. The responsibility for the governance and regulation of the medical profession in this state rests with the FBM. Far from being arbitrary and capricious, the Board's action was proper and appropriate.

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

ORDERED THAT the Petition to Declare Rule 21M-24.001(2)(f), now re-numbered 61F6-24.001(2)(f), F.A.C., invalid is hereby denied.

DONE AND ORDERED this 18th day of April, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 18th day of April, 1994.

APPENDIX TO FINAL ORDER IN CASE NO. 93-6545RX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 3. Accepted and incorporated herein.

4. - 7. Accepted and incorporated herein.

1. Accepted.

2. Accepted in theory, but ABMS sanction comes as a result or recognition rather than membership.

3. Misleading. Actionable activity is not disclosure but dissemination.

4. Accepted.

5. - 15. Accepted.

1. & 17. Accepted.

   1. Accepted and incorporated herein.

   2. & 20. Accepted.

21. - 25. Accepted.

26. - 28. Accepted.

1. & 30. Accepted.

   1. Accepted.

   2. & 33. Accepted and incorporated herein.

FOR THE RESPONDENT:

1. Accepted.

2. Accepted.

3. Not a Finding of Fact but a restatement of the issues.

4. Relates to standing of Petitioner which is not in issue.

5. & 6. Accepted and incorporated herein.

1. Rejected. However, rejection is not to be taken as dispositive of the ultimate issue of fact.

2. - 10. Accepted and incorporated herein.

11. & 12. Accepted.

13. & 14. Accepted.

15. & 16. Accepted and incorporated herein.

17. Cumulative.

COPIES FURNISHED:

Thomas Saieva, Esquire Saieva and Walsh

800 West DeLeon Street Tampa, Florida 33606-2722

Allan R. Grossman, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050

The Honorable Robert A. Butterworth Attorney General

The Capitol, Plaza Level Tallahassee, Florida 32399-1050

George Stuart Secretary

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dr. Marm Harris Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-006545RX

Orders for Case No: 93-006545RX