STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE UNIVERSITY OF THE STATE OF )

NEW YORK, a New York corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1438RP

)

BOARD OF NURSING, )

)

Respondent. )

)

FINAL ORDER

On April 28, 1995, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: C. Philip Campbell, Jr., Esquire

Darrell C. Smith, Esquire Mark A. Catchur, Esquire Shumaker, Loop & Kendrick Barnett Plaza, Suite 2500

101 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Ann Cocheu, Esquire

Assistant Attorney General Department of Legal Affairs Suite PL01, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether the Petition for Formal Hearing Challenging the Proposed Amendment to Rule 59S-3.001(1) of the Florida Board of Nursing should be granted.

PRELIMINARY STATEMENT

On March 24, 1995, the University of the State of New York filed a Petition for Formal Hearing Challenging the Proposed Amendment to Rule 59S-3.001(1) of the Florida Board of Nursing (the Board). The case was assigned to a hearing officer and scheduled for final hearing on April 28, 1995.

On April 3, 1995, the Board filed a Motion to Dismiss on the ground that the Petitioner lacked standing. After receiving the Petitioner's response in opposition, the hearing officer previously assigned to this case denied the Motion to Dismiss on April 18, 1995.

On April 24, 1995, this case was reassigned to the undersigned hearing officer to conduct further proceedings.

On April 26, 1995, the Petitioner filed a Motion for Summary Final Order.

On April 27, 1995, the parties filed a Joint Pre-Hearing Statement. It indicated that a ruling was required on the pending Motion for Summary Final Order.

At the final hearing, the Petitioner had the first two pages of Exhibit 1 (the rest of which could not be authenticated) and Exhibits 2-6, 9, 10, and 15-

17 admitted in evidence. The Petitioner also called two witnesses. The Board called three witnesses and recalled one of the witnesses who testified in the Petitioner's case.

At the conclusion of the evidence, the Petitioner requested a ruling on its pending Motion for Summary Final Order, but the motion was denied at that point as being moot.

The Board ordered the preparation of a transcript of the final hearing, and the parties initially were given ten days from the filing of the transcript in which to file proposed final orders. But, in view of the requirement of Section 120.54(4), Fla. Stat. (Supp. 1994), that the final order be entered with 30 days, regardless of the preparation of a transcript, the parties were notified by telephone that proposed final orders would be due by May 11, 1995.

Explicit rulings on the proposed findings of fact contained in the parties' proposed final orders (the Petitioner's erroneously was designated as a Proposed Summary Final Order) may be found in the Appendix to Final Order, Case No. 95- 1438RP.

FINDINGS OF FACT

1. The Petitioner, the University of the State of New York, is a corporate entity created by the New York State legislature which offers nursing degree programs to individuals in Florida, as well as all other states, through an operating unit in the State of New York known as Regents College. Regents College is accredited by several accrediting organizations and is approved by the Board of Nursing of the State of New York.

   
   

2. Over the years, the Florida Board of Nursing has certified for licensure by endorsement or examination persons who completed the Regents College program. However, in the past year or so, it has come to the attention of the Respondent, the Board of Nursing of the State of Florida, that at least some the students in the Regents College nursing school, at least some of whom are Florida residents, may take what amounts to a correspondence course that does not integrate clinical training.

   
   

3. As of August 10, 1994, the Board began to implement a policy under which the credentials of candidates for licensure (whether by endorsement or by examination) who had been graduated from Regents College would be scrutinized to ascertain whether they had adequate clinical training. The Board also began explain its new policy in response to inquiries both from Regents College graduates and from persons considering enrollment in the Regents College nursing school. Later, the Board modified its policy to apply only to persons who were not yet enrolled in the Regents College nursing program as of August 10, 1994.

4. Aware of this new policy and its impact on Regents College, on or about October 27, 1994, Regents College had its attorneys request "advance notification of any rulemaking proceedings initiated by the Board of Nursing relating to nursing programs and qualifications for licensure in the State of Florida."

   
   

5. In response to the Regents College request, the Board sent its attorneys a copy of the preliminary agenda for the Board's February, 1995, meeting. The preliminary agenda indicated, among other things, that the Board would be considering, under item XI.A.1., the following "rule drafts":

   
   

   1. Rule 59S-3.001(2), Credentials for Licensure

   2. Rule 59S-3.001(6), Credentials for Licensure

      * * *

      f. Graduates of Non-Traditional Schools of Nursing (Rule draft will be hand-carried)

      
      

6. The Rule 59S-3.001(2) "rule draft" distributed to Board members with their copies of the preliminary agenda for the February, 1995, meeting was as follows:

   
   

   Approved Program Equivalent -- nursing program conducted in a school, college or university outside the State of Florida which has been approved by the Board of Nursing in the state

   in which it is located and or which demonstrates that it meets the education criteria in these rules.

   (The underlining and striking are in the original. The underlining signifies language to be added, and the striking indicates language to be deleted, as a result of the "rule draft.")

   
   

7. Contrary to the intentions indicated in the preliminary agenda, the "Graduates of Non-Traditional Schools of Nursing" "rule draft" was neither "hand-carried" to the meeting nor even drafted.

   
   

8. During consideration of the Rule 59S-3.001(2) "rule draft" at the February, 1995, meeting, the Board decided not to notice the "rule draft" as a proposed rule amendment but instead decided to notice a proposed amendment to

   F.A.C. Rule 59S-3.001(1) as follows:

   
   

   Approved Programs - a nursing program conducted in a school, college or university which is approved by the Board pursuant to Section 464.019 (F. S.) for the education of nurses, and includes

   integrated clinical and theoretic [sic] education. (The underlining is in the original. The under- lining signifies language to be added as a result of the proposed amendment.)

   
   

9. It is not clear why the Board decided to notice the proposed amendment to F.A.C. Rule 59S-3.001(1). F.A.C. Rule Chapter 59S-2 contains detailed criteria for approval of nursing programs. In order to meet the detailed

   criteria in F.A.C. Rule Chapter 59S-2, a nursing program already would have to integrate clinical education with theory.

   
   

10. The Florida Board of Nursing only approves Florida-based nursing programs under F.A.C. Rule 59S-3.001(1) and F.A.C. Rule Chapter 59S-2. At this time there are 83 approved, Florida-based nursing programs. Neither Regents College nor any other nursing program based outside the State of Florida ever has applied for approval under F.A.C. Rule 59S-3.001(1) and F.A.C. Rule Chapter 59S-2. If a nursing program based outside the State of Florida applied for approval under F.A.C. Rule 59S-3.001(1) and F.A.C. Rule Chapter 59S-2, it probably would be advised that the Board does not approve nursing programs based outside the State of Florida under F.A.C. Rule 59S-3.001(1) and F.A.C. Rule Chapter 59S-2, as it would be impractical, if not impossible, for the Board to inspect nursing programs all over the United States, as well as outside the United States, for approval under those rules.

    
    

11. The Board published notice of its proposed amendment to F.A.C. Rule 59S-3.001(1) in the March 3, 1995, issue of the Florida Administrative Weekly. The notice included the full text of the proposed amendment to the rule and stated that there would be no change to F.A.C. Rule 59S-3.001(2)-(11). It stated that the purpose and effect of the proposed amendment to the rule was "to clarify the types of nursing programs which will be approved by the Board." Section 464.019, Fla. Stat., is among the statutes which the notice states are implemented by the proposed amendment.

    
    

12. The notice of the Board's proposed amendment to F.A.C. Rule 59S- 3.001(1) published in the Florida Administrative Weekly also stated:

    
    

    IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE TIME, DATE AND PLACE SHOWN BELOW:

    TIME AND DATE: 8:30 a.m., April 7, 1995

    PLACE: Ft. Lauderdale Hilton 1870 Griffin Road

    Dania, FL 33004

    
    

13. Neither Regents College nor anyone else requested either an economic impact statement or a hearing on the Board's proposed amendment to F.A.C. Rule 59S-3.001(1).

    
    

14. Representatives from Regents College, including its attorneys, attended and observed the Board's April 7, 1995, meeting at the Ft. Lauderdale Hilton. They did not speak or ask to speak, and were not asked to speak, at the April 7, 1995, meeting of the Board (or at the February, 1995, meeting of the Board, which representatives of Regents College also attended and observed). At no time did they ask for a hearing on the Board's proposed amendment to F.A.C. Rule 59S-3.001(1).

    
    

    CONCLUSIONS OF LAW

    
    

15. Section 120.54(4)(a), Fla. Stat. (1991), provides:

    
    

    Any 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 legislative authority.

16. In order to establish standing, a petitioner challenging a proposed rule must prove both: (1) a sufficiently immediate injury, not merely speculation or conjecture; and (2) that the injury is in the "zone of interest" protected by the statute being implemented by the rule. See Florida Medical Association, Inc., v. Dept. of Prof. Reg., 426 So. 2d 1112 (Fla. 1st DCA 1983); Dept. of Health and Rehab. Services v. Alice P., 367 So. 2d 1045 (Fla. 1st DCA 1979); Florida Dept. of Offender Rehab. v. Jerry, 353 So. 2d 1230 (Fla. 1st DCA 1978).

    
    

17. In this case, the proposed rule amendment is a definition of "approved program." The stated purpose and effect of the proposed rule amendment is "to clarify the types of nursing programs which will be approved by the Board." Section 464.019, Fla. Stat., is among the statutes which the notice stated are implemented by the proposed amendment. Section 464.019(1), Fla. Stat. (1993), provides:

    
    

    An institution desiring to conduct an approved program for the education of professional or practical nurses shall apply to the department and submit such evidence as may be required to show that it complies with the provisions of this chapter and with the rules of the board.

    
    

    The evidence is that Regents College has not applied to become an approved program, and there is no evidence that it ever has intended to apply to become an approved program. Under these circumstances, Regents College has no standing to challenge the validity of the proposed rule amendment.

    
    

18. The real concern of Regents College in this case is with the definition of "approved program equivalent." But the Board chose not to amend the definition of "approved program equivalent" contained in F.A.C. Rule 59S- 3.001(2). It still provides:

    
    

    Approved Program Equivalent -- nursing program conducted in a school, college or university outside the State of Florida which has been approved by the Board of Nursing in the state in which it is located or which demonstrates

    that it meets the education criteria in these rules. (Emphasis added.)

    
    

19. Generally, the word "or" signifies the disjunctive, and its use in a statute normally would indicate that alternatives are intended. See, e.g., Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986). Contrast Dept. of Prof. Reg., Board of Dentistry v. Florida Dental Hygenienist Ass'n, Inc., 612 So. 2d 646 (Fla. 1st DCA 1993)(where legislative history and an appellate court decision required the word "or" used in the statute in issue in that case to be read in the conjunctive). A fortiori, its use in a rule signifies that alternatives are intended. Under Section 120.68(12)(b), Fla. Stat. (Supp. 1994), a court "shall remand . . . if it finds the agency's exercise of discretion to be . . . [i]nconsistent with an agency rule . . .." Since the Regents College program is approved by the Board of Nursing of the State of New York, it is an "approved program equivalent" under the F.A.C. Rule 59S-3.001(2) definition.

    
    

20. Though misdirected, the concern of Regents College that resulted in this proceeding is not without any factual impetus. As found, it appears that,

as of August 10, 1994, the Board stopped treating Regents College as an "approved program equivalent," despite the F.A.C. Rule 59S-3.001(2) definition of "approved program equivalent." The precise legal basis for the change in the treatment of Regents College is not clear from the evidence. It may be that the change is based not on a contention that the word "or" in the F.A.C. Rule 59S- 3.001(2) definition of "approved program equivalent" should be read in the conjunctive, but rather on the contention that the Regents College program is not "conducted in a school, college or university," to the extent that it is a correspondence course. In any event, the status of Regents College and its graduates turns on the definition of "approved program equivalent" under F.A.C. Rule 59S-3.001(2), not on the definition of "approved program" under F.A.C. Rule 59S-3.001(1).

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the Petition for Formal Hearing Challenging the Proposed Amendment to Rule 59S- 3.001(1) of the Florida Board of Nursing is dismissed.

DONE AND ORDERED this 24th day of May, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 24th day of May, 1995.

APPENDIX TO FINAL ORDER

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. 1.-2. Accepted and incorporated.

3.-4. In part, rejected as not supported by any evidence. (Not much

detail about the Petitioner can be ascertained from the evidence in the record.)

5. Accepted and incorporated.

6.-9. In large part, rejected as not supported by any evidence. (Not much detail about the litigation can be ascertained from the evidence in the record.)

10.-14. Accepted and incorporated.

1. Accepted. Largely subordinate to facts found and unnecessary.

2. Rejected not proven and as contrary to facts found and to the greater weight of the evidence.

17.-20. Accepted and incorporated.

21.-23. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. (The Florida Administrative Law Weekly publication was the statutorily required notice of the proposed rule.)

24. Rejected as not proven.

Respondent's Proposed Findings of Fact.

1. Conclusion of law.

2.-4. Accepted and incorporated.

1. Rejected as not clear from the evidence. (Not much detail about the Petitioner can be ascertained from the evidence in the record.)

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. First sentence, accepted and incorporated. Second sentence, rejected as contrary to the greater weight of the evidence. (The Board probably would decline to evaluate a program based outside the State of Florida. If it did evaluate one, it would use the F.A.C. Rule Chapter 59S-2 criteria.)

4. Accepted and incorporated.

9.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

11. Second sentence, rejected as contrary to facts found and to the greater weight of the evidence. The rest is accepted and incorporated.

12.-17. Accepted and incorporated.

COPIES FURNISHED:

C. Philip Campbell, Jr., Esquire Darrell C. Smith, Esquire

Mark A. Catchur, Esquire Shumaker, Loop & Kendrick Barnett Plaza - Suite 2500

101 East Kennedy Boulevard Tampa, Florida 33602

Ann Cocheu, Esquire Assistant Attorney General Department of Legal Affairs Suite PL01, The Capitol

Tallahassee, Florida 32399-1050

Marilyn A. Bloss

Acting Executive Director Daniel Building, Room 50

111 East Coastline Drive Jacksonville, Florida 32202

Jerome W. Hoffman, Esquire General Counsel

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, FL 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliot Building Tallahassee, FL 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 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.

Docket for Case No: 95-001438RP

Orders for Case No: 95-001438RP