STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASSANDRA BENNETT and BROWARD ) PARAPROFESSIONAL ASSOCIATION, )

)

Petitioners, )

)

vs. ) Case No. 97-5974RX

) BROWARD COUNTY SCHOOL BOARD, )

)

Respondent. )

)

FINAL ORDER

On December 22, 1997, Cassandra Bennett and Broward Paraprofessional Association (Petitioners) filed a Petition for Administrative Determination of the Validity or Invalidity of an Existing Rule (Petition), pursuant to Section 120.56, Florida Statutes, challenging an "existing rule" of the Broward County School Board (Respondent). This matter was assigned to be heard by Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings. On January 6, 1998, the parties filed notice waiving the 30-day hearing requirement. By agreement of the parties, this matter was scheduled for hearing on March 16, 17, and 18, 1998.

Prior to hearing, Respondent filed a Motion for Summary Final Order and to Dismiss. Petitioner filed a Counter-Motion for Summary Final Order. By Order dated February 25, 1998, the Motion and Counter-Motion for Summary Final Order were denied, the Motion to Dismiss was granted, with Petitioners being granted

leave to amend their Petition, and the hearing was cancelled. Petitioners timely filed an amended Petition, entitled Amended Petition for Administrative Determination to Challenge the Validity of an Existing Rule, and/or to Challenge Agency Statement Defined as a Rule.

APPEARANCES

For Petitioners: John J. Chamblee, Jr., Esquire

Juan A. Pyfrom, Esquire Chamblee & Johnson, P.A. 709 West Azeele Street Tampa, Florida 33606

For Respondent: Edward J. Marko, Esquire

Robert Paul Vignola, Esquire Broward County School Board

600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent’s rule is an invalid exercise of delegated legislative authority, and/or whether Respondent’s agency statement constitutes a rule and has not been adopted pursuant to the statutory rulemaking procedure.

PRELIMINARY STATEMENT

Petitioners filed an Amended Petition for Administrative Determination to Challenge the Validity of an Existing Rule, and/or to Challenge Agency Statement Defined as a Rule (Amended Petition), together with attachments. The Amended Petition was filed pursuant to Subsections 120.56(1) and (4), Florida Statutes, alleging that Respondent promulgated an "Agency Statement" in violation of Subsection 120.54(1), Florida

Statutes, and that the agency statement constitutes a "Rule," which is an invalid exercise of delegated legislative authority. Respondent filed several pleadings in response to the Amended Petition, including an Answer and Affirmative Defenses; Motion for More Definite Statement, with attachments which included the original text of the Florida House of Representative’s Bill (HB

483) filed to create Section 232.462, Florida Statutes, and the Bill Analysis for HB 483; Motion to Strike Portions of the Amended Petition; and Motion for Summary Final Order or to Dismiss.

Subsequently, Petitioners filed a Combined Reply 1/ to Respondent’s motions, with attachments which included excerpts from depositions and a portion of Section 232.47, Florida Statutes (Supp. 1996), and to Respondent’s Answer and Affirmative Defenses. Respondent filed a reply to Petitioner’s Combined Reply. Petitioners also filed a Motion for Summary Final Order, together with depositions, and Respondent filed a response in opposition, together with an affidavit, depositions, and excerpts from depositions.

A telephone conference was held on all pending motions.

Following the telephone conference, Petitioners filed a supplemental affidavit, to which Respondent filed a Motion to Strike, and to which Petitioners filed a response. Having reviewed the record and heard arguments of counsel, the undersigned is persuaded and determines that Respondent's Motion

for More Definite Statement as to Amended Petition, Motion to Strike Portions of Amended Petition, and Motion to Strike Supplemental Affidavit and Authority should be and are hereby denied.

The remaining issues focus on the respective parties' Motion for Summary Final Order and Respondent’s Motion to Dismiss. In order for a summary final order to be issued, no genuine issue of material fact must exist. The undersigned is persuaded that no genuine issue of material fact exists and that, therefore, this case is ripe for a summary final order.

FINDINGS OF FACT

1. Several children attending schools in the Broward County School Board’s (Respondent’s) district require the performing of medical procedures, among them daily catheterization, also referred to as intermittent urinary catheterization or clean intermittent catheterization, using the clean technique. 2/ Respondent ensures that such medical needs of each student are met.

2. Catheterization (clean intermittent catheterization) is an invasive medical procedure. An invasive medical procedure is a medical procedure that invades or goes within a body orifice or opening for the purpose of providing care for the infirm, the promotion of wellness, maintenance of health, and/or prevention of illness. Catheterization involves the insertion of a tube

   into a student’s bladder through the urethral opening for the purpose of eliminating urine from the student’s body.

3. Respondent's teacher aides and teacher assistants are paraprofessionals. They are primarily designated to specifically meet the needs of those students who require daily catheterization.

4. For more than 15 years, Respondent has continuously engaged in a practice of using paraprofessionals to provide health-related services, including catheterization. Such practice by Respondent is a policy of Respondent.

5. Respondent’s principals assign paraprofessionals to catheterize students, who have a disability or infirmity, and cannot deviate from this practice without the approval from the Area Superintendent. Principals are permitted to use licensed nursing personnel to catheterize students only when the principals receive approval from the Area Superintendent.

6. Respondent has a standard procedure, even though there are no written guidelines, for servicing students who need catheterization because of disability or infirmity. The standard procedure is compulsory and each principal must adhere to it.

   The following process comprises this standard procedure:

   
   

   1. The medical situation of the student with a disability or infirmity must be reviewed by an Individual Educational Plan (IEP) committee. The IEP committee determines what services the student needs.

      
      

   2. If the IEP committee determines that a student requires catheterization, the

      principal selects a paraprofessional from the school’s staff and assigns that paraprofessional to perform the catheterization. If no paraprofessional is available, the principal declares a vacancy and advertises the vacancy. Until a paraprofessional is hired to fill the position, the School Board contracts with an outside agency to have a licensed nurse provide the service.

      
      

   3. In advertising for the paraprofessional vacancy, the principal specifies on the job listing that the applicant must be willing to accept the responsibility to provide individual care for the student, including daily catheterization. The applicant’s willingness to catheterize the student is a condition of hiring and of continued employment.

      
      

   4. When the paraprofessional is identified, the paraprofessional is given child-specific training. The training usually takes approximately two hours and is required to catheterize a student without direct supervision. (The training is provided primarily to show the individual paraprofessional the proper technique based on the child’s specific condition.)

7. Cassandra Bennett (Petitioner Bennett) is a teacher aide employed by Respondent at Thurgood Marshall Elementary School (Thurgood Marshall).

8. Broward Paraprofessional Association (PPA) is the certified bargaining representative for teacher aides employed by Respondent. Petitioner Bennett is a member of the PPA.

9. Petitioner Bennett received child-specific training. The principal at Thurgood Marshall assigned duties to Petitioner

   Bennett, which included, but were not limited to, catheterizing a student at Thurgood Marshall. Petitioner Bennett did not feel

   comfortable catheterizing the student because she believed that catheterization was a medical procedure which required a licensed individual, which she was not. Petitioner Bennett notified her principal of her position. Regardless, the principal at Thurgood Marshall required Petitioner Bennett to catheterize the student. Petitioner Bennett complied with the principal’s directive because Petitioner Bennett believed that a refusal to perform the catheterization would result in the loss of her job.

10. Respondent assured PPA that no paraprofessional would be forced to perform catheterization on a student. Moreover, Respondent assured PPA that, if a paraprofessional refused to attend training or to perform a catheterization, no disciplinary action would be taken against the paraprofessional. After being contacted by the PPA regarding Petitioner Bennett’s situation, Respondent notified the principal at Thurgood Marshall, by memorandum dated October 23, 1997, that no paraprofessional, including Petitioner Bennett, could be forced or required to perform catheterizations, but that paraprofessionals could only volunteer to perform catheterizations. Thereafter, Petitioner Bennett was notified that she was not required, and would no longer be required, to perform catheterization.

1. Respondent employs a Clinical Nursing Supervisor, Marcia Bynoe, who is responsible for the paraprofessional training program. She has been a practicing nurse for over 20 years and has been a nursing school instructor. Ms. Bynoe is

   unaware of any other situation, besides the case at hand, wherein non-medical professionals are given catheterization training with the expectation that they will perform the medical procedure in the course of their employment.

2. Paraprofessionals were and are utilized by Respondent for the catheterization of a student with a physical disability or infirmity as follows:

   1. To administer the treatment to the student to maintain the student’s health as directed by the School Board’s [Respondent’s] principal at Thurgood Marshall Elementary School, with the approval of Ms. Bynoe, and the School Board’s [Respondent’s] Coordinator of Health Education Services (who is also a registered nurse).

      
      

   2. To observe and evaluate the student’s physical condition, behaviors, signs and symptoms of illness associated with the catheterization and reactions to the treatment; and to make a determination as to whether such conditions, behaviors, signs, symptoms and reactions represent a deviation from what is considered normal. Paraprofessionals were trained and [Petitioner] Bennett was instructed to observe the student, measure the quantity of urine, and to look for signs of cloudiness, blood, mucus, strong or unusual odor, or other signs of trauma or infection.

3. The paraprofessionals administer the treatment, including catheterization, with the approval of Respondent’s nurse. Periodic monitoring of the treatment being provided to the disabled students is conducted by Respondent’s nurse.

4. Catheters that are used to catheterize the students are reusable. The catheters must, therefore, be washed and put away

after each use in accordance with the training provided by Respondent.

1. Paraprofessionals come in contact with body fluids due to catheterizing a student on a daily basis. Failure of a paraprofessional, because of lack of knowledge, training, or experience, to follow universal safety precautions or dispose of waste properly in performing the catheterization of a student who may have a contagious or infectious disease, can cause a life- threatening risk of contamination to other staff members, other students, the paraprofessional’s family, and the general public at large.

2. Respondent is not aware of any other setting where unlicensed persons, other than the patient’s family members or the patients themselves, are trained to perform medical procedures like catheterization with the expectation that the unlicensed persons will be permitted to perform invasive medical procedures. Respondent’s non-medical personnel are not even permitted to give students injections.

3. Some paraprofessionals are designated as surplus or excess and are placed on a surplus or excess list. Respondent’s representative who is responsible for the surplus or excess list of paraprofessionals requires these paraprofessionals to perform catheterization, if needed, in order to work. A list of vacancies is forwarded by Respondent to these paraprofessionals. The list of vacancies may contain positions which require a

   paraprofessional to perform catheterization. The excess paraprofessional must choose one of the listed positions, even a position that requires catheterization, or face termination.

   This requirement is contrary to Respondent’s pronounced position of not requiring paraprofessionals to perform catheterizations but making catheterization a voluntary act on the part of paraprofessionals.

4. At some of Respondent’s school sites, paraprofessionals and other non-medical personnel are also being permitted or allowed to provide catheterization or supervise self- catheterization for students who have physical disabilities or infirmities. Paraprofessionals and the other non-medical personnel are monitored periodically by a nurse.

5. Respondent has a policy, which includes its standard procedure, of utilizing paraprofessionals to catheterize students who have physical disabilities or infirmities.

6. Respondent’s policy substantially affects its paraprofessionals, who are PPA members, at Respondent’s school sites attended by students, whose physical disability or infirmity requires catheterization. Respondent’s policy also substantially affects the special-needs children, themselves, and their parents.

7. Chapter 232, Florida Statutes, is applicable to the case at hand. During the 1996 Legislative Session, the Florida Legislature passed an amendment to Chapter 232, by way of

   Committee Substitute for House Bill 483 (CS/HB 483), which became law without the governor’s signature and which took effect on July 1, 1996. The amendment is found at Chapter 96-294, Laws of Florida, and embodied in Florida Statutes at Section 232.465.

8. The Final Bill Analysis for CS/HB 483 states, in pertinent part, as follows:

   1. SUMMARY:

      
      

      * * *

      
      

      [The bill] also prohibits certain medical services by nonmedical school district personnel in order to ensure that such nonmedical school district personnel are properly trained in the administration of medication and that these personnel refrain from performing invasive procedures.

      Invasive procedures include, but are not limited to: cleaning intermittent catheterization; providing sterile catheterization; cleaning and maintaining a tracheostomy; providing gastrostomy tube feeding; monitoring blood glucose; and administering injectable medications.

   2. SUBSTANTIVE ANALYSIS:

      
      

      1. PRESENT SITUATION:

         
         

         * * *

         
         

         In many situations, teachers are administering medical procedures, and there is a feeling that this goes beyond their "scope of academics" [sic]. Many instances exist where there are special needs children, requiring such procedures as catheterization, gastrostomy tube feeding (inserting tubes for feeding into the stomach), and the injection of medications.

      2. EFFECT OF PROPOSED CHANGES:

         
         

         The bill requires school district nonmedical personnel who administer prescribed medication to be trained by medical personnel. It also requires review of cases in which medications are administered and prohibits nonmedical personnel from performing invasive medical services such as cleaning intermittent catheterization, providing sterile catheterization, cleaning and maintaining a tracheostomy; providing gastrostomy tube feeding; monitoring blood glucose; and administering injectable medications.

         
         

         * * *

         
         

      3. SECTION-BY-SECTION ANALYSIS:

      
      

      * * *

      
      

      Section 2. Creates s. 232.465, F.S., to indicate that nonmedical school district personnel shall not be permitted to perform invasive medical services, including, but not limited to, cleaning intermittent catheterization; providing sterile catheterization; cleaning and maintaining a tracheostomy; providing gastrostomy tube feeding; monitoring blood glucose; and administering injectable medications.

      Provides that each school board shall establish emergency procedures for life- threatening emergencies.

9. Section 232.465, Florida Statutes (Supp. 1996), provides in pertinent part:

   1. Nonmedical school district personnel shall not be allowed to perform invasive medical services that require special medical knowledge, nursing judgment, and nursing assessment. The procedures include, but are not limited to:

      
      

      1. Sterile catheterization.

      2. Nasogastric tube feeding.

      3. Cleaning and maintaining a tracheostomy and deep suctioning of a tracheostomy.

      
      

   2. Nonmedical assistive personnel shall be allowed to perform health-related services upon successful completion of child-specific training by a registered nurse, a licensed practical nurse, a physician licensed pursuant to chapter 458 or chapter 459, or a physician assistant certified pursuant to chapter 458 or chapter 459. All procedures shall be monitored periodically by the nurse. Those procedures include, but are not limited to:

      1. Cleaning intermittent catheterization.

      2. Gastrostomy tube feeding.

      3. Monitoring blood glucose.

      4. Administering emergency injectable medication.

      
      

   3. For all other invasive medical services not listed in subsection (1) or subsection (2), a registered nurse, a licensed practical nurse, a physician licensed pursuant to chapter 458 or chapter 459, or a physician assistant certified pursuant to chapter 458 or chapter 459 shall determine if nonmedical school district personnel shall be allowed to perform such service.

10. CS/HB 483 was amended at the committee level in the Florida House of Representatives, and subsections (1), (2), and

    (3) of Section 232.465, reflect that amendment. The Florida House of Representatives substituted CS/HB 483 for CS/SB 1114 which contained the same wording as the aforementioned amendment.

11. The Senate Staff Analysis and Economic Impact Statement for CS/SB 1114 states in pertinent part: 3/

    1. Summary:

       
       

       This bill requires district school boards to have certain qualified medical professionals train school-based personnel . . . Non-

       medical assistive personnel, who have successfully completed child-specific training by an RN or LPN, may perform certain health-related services (e.g., cleaning intermittent catheterization; gastrostomy tube-feeding; monitoring blood glucose; or administering emergency injectable medications). A RN must determine whether nonmedical school district personnel may do other invasive procedures. . . . .

       * * *

       
       

       This bill amends s. 232.46, Florida Statutes, and creates s. 232.465, Florida Statutes.

       
       

       * * *

       
       

       III. Effect of Proposed Changes:

       
       

       Nonmedical school district personnel are prohibited from performing invasive medical services (e.g., sterile catheterization, nasogastric tube-feeding, or cleaning and maintaining a tracheostomy) that require special knowledge or nursing judgement/assessment. Nonmedical assistive personnel, who have successfully completed child-specific training by an RN or LPN may perform health-related services, such as cleaning intermittent catheterization; gastrostomy tube-feeding; monitoring blood glucose; or administering emergency injectable medications. An RN must determine whether other invasive medical services may be done by nonmedical school district personnel. Each school board must establish procedures for life-threatening emergencies. The changes made by this bill protect the health, safety, and welfare of both public school students and school district personnel.

12. The Senate Staff Analysis also contained the following statement on the last page: "This Senate staff analysis does not reflect the intent or official position of the bill’s sponsor or of the Florida Senate. 4/

13. Attached to the Senate Staff Analysis was a one-page document entitled "STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN COMMITTEE SUBSTITUTE FOR SB 1114," which states in pertinent part the following: 5/

    [P]rohibits nonmedical school district personnel from performing certain invasive medical procedures that require medical or nursing knowledge.

    
    

    Allows nonmedical assistive personnel to perform health-related services upon successfully completing child-specific training by an RN and with periodic monitoring by the nurse. Requires an RN to determine whether nonmedical school district personnel may perform other invasive medical services.

14. It is clear that the staff analysis for CS/HB 483 is inaccurate, regarding the prohibition of non-medical personnel from performing invasive techniques upon completing child- specific training by a nurse, with periodic monitoring by the nurse, and the nurse approving non-medical personnel performing other invasive techniques. The staff analysis failed to reflect that there was no prohibition under the conditions aforementioned.

15. Catheterization performed by the paraprofessionals requires some degree of special medical knowledge, nursing judgment, and nursing assessment. However, the catheterization is permitted by Section 232.465, Florida Statutes (Supp. 1996).

16. Respondent has not engaged in rulemaking regarding the implementation of Subsection 232.465(2), Florida Statutes (Supp. 1996).

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of these proceedings and the parties thereto pursuant to Subsections 120.569, 120.56, and 120.54, Florida Statutes.

18. Subsection 120.56, Florida Statutes, provides in pertinent part:

    1. GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE . . . .

       1. Any person substantially affected by a rule . . . may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

    
    

    * * *

    
    

    1. CHALLENGING AGENCY STATEMENTS DEFINED AS RULES; SPECIAL PROVISIONS.

       1. Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s. 120.54(1)(a). . . .

    
    

19. Subsection 120.54, Florida Statutes, pertaining to rulemaking, provides in pertinent part:

    1. GENERAL PROVISIONS APPLICABLE TO ALL RULES OTHER THAN EMERGENCY RULES.

       1. Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.

20. Section 120.52, Florida Statutes, provides definitions and provides in pertinent part:

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A[n] . . . existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:

       1. The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1;

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1;

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

       5. The rule is arbitrary or capricious;

       6. The rule is not supported by competent substantial evidence; or

       7. The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. . . .

    * * *

    
    

    (15) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:

    (a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.

21. Petitioners demonstrated that they have standing to bring this action. Petitioner Bennett was required to perform catheterization by Respondent’s principal at Thurgood Marshall Elementary School, and she received child-specific training to perform the procedure. Petitioner Bennett is a member of the certified bargaining unit being represented by BPA. Paraprofessionals within the bargaining unit represented by BPA perform catheterization on disabled students attending Respondent’s schools. Some paraprofessionals are being required by Respondent’s principals to perform catheterization and some are being allowed or permitted by principals to perform catheterization. Therefore, Petitioners’ interests are substantially affected.

22. Petitioners argue that Respondent’s practice and procedure of utilizing paraprofessionals and other non-medical personnel to provide catheterization services to disabled students attending its schools, hereinafter referred to as catheterization policy, falls within the definition of a rule as an agency statement. Petitioners further argue that the manner in which the practice and procedure is implemented demonstrates that the practice and procedure is a policy, which is a rule as defined by Subsection 120.52(15), Florida Statutes. The manner in which the practice and procedure are implemented, according to Petitioners, is as follows: Respondent’s staff determines how the services are delivered; applies the agency statement on a

    district-wide basis; selects or facilitates the selection of the paraprofessionals and other non-medical personnel who provide the catheterization service; designs and implements the training for the paraprofessionals and other non-medical personnel; requires compliance with the catheterization procedure; grants exemptions; and monitors the paraprofessionals and other non-medical personnel providing the catheterization and the quality of medical services provided to the disabled student.

23. Petitioners argue also that Respondent’s agency statement contravenes Section 232.465, Florida Statutes (Supp. 1996) and is, therefore, an invalid exercise of delegated legislative authority.

24. Additionally, Petitioners argue that Respondent failed to utilize rulemaking in adopting the agency statement as required by Section 120.54, Florida Statutes.

25. Respondent’s practice and procedure of utilizing paraprofessionals and other non-medical personnel to provide catheterization services to disabled students attending its schools falls within the definition of a rule as an agency statement. Subsection 120.52(15), Florida Statutes. Such practice and procedure by Respondent is a district-wide policy, applicable to all paraprofessionals employed by Respondent, without exception. The policy describes Respondent’s practice and procedure requirements as they apply to the use of paraprofessionals to provide catheterization services to disabled

    students attending its schools. The policy is not subject to discretion by the paraprofessional’s supervisor, i.e., his or her principal. The policy is intended to require compliance, or otherwise to have the direct and consistent effect of law.

    Department of Highway Safety and Motor Vehicles v. Schluter, 705 So. 2d 79, 82, 83 (Fla. 1st DCA 1997).

26. The question now becomes whether Respondent’s policy falls within the "internal management memoranda" exception. Subsection 120.52(15)(a), Florida Statutes. The exception is shown in either of two ways: "by showing that the memoranda does not affect the private interests of a person, or that it does not affect the interests of the public." Reiff v. Northeast Florida State Hospital, 710 So. 2d 1030, 1032 (Fla. 1st DCA 1998). The undersigned is persuaded that no exception exists. At first glance, it would appear that an exception exists in that paraprofessionals are not required to perform catheterization and that, if they refuse to perform the service, there is no disciplinary action. However, paraprofessionals on the excess or surplus list must perform catheterization services if the vacancy available requires catheterization. If the excess or surplus paraprofessional refuses to accept the vacant position which requires performing catheterization services, such refusal can lead to termination of employment with Respondent, thereby affecting the excess or surplus paraprofessional’s private interest, i.e., his or her property right of continued

    employment. Reiff v. Northeast Florida State Hospital, 710 So. 2d 1030, 1033 (Fla. 1st DCA 1998); Department of Highway Safety and Motor Vehicles v. Schluter, 705 So. 2d 79, 83 (Fla. 1st DCA 1997).

27. Respondent failed to engage in rulemaking regarding the implementation of Subsection 232.465(2), Florida Statutes (Supp. 1996).

28. Section 232.465, Florida Statutes, was enacted by the 1996 Florida Legislature, and became effective on July 1, 1996. Section 232.465 was enacted subsequent to the Sections 464.003 and 464.016, Florida Statutes, the applicable sections of the Nursing Practice Act. In determining the effect of a later enacted statute, it is assumed that the Legislature passed the later statute with knowledge of the prior-existing laws. State ex rel. School Board of Martin County v. Department of Education,

    317 So. 2d 68 (Fla. 1975); Romero v. Shadywood Villas Homeowners Association, Inc., 657 So. 2d 1193 (Fla. 3d DCA 1995). Consequently, it is assumed that when the Florida Legislature enacted Section 232.465, the Legislature acted with knowledge of the existing laws, Sections 464.003 and 464.016, Florida Statutes.

29. Furthermore, the revisions to Section 464.003 after the enactment of Section 232.465, do not conflict with Section 232.465.

30. As a result, even though catheterization is an invasive procedure, the Legislature approved this invasive procedure to be performed by non-medical personnel of school boards under certain specified conditions. Respondent in the case at hand has complied with the specified conditions stated in the statute. Consequently, catheterization performed by paraprofessionals and other non-medical personnel of Respondent is permitted, and Respondent’s action is in compliance with Section 232.465, Florida Statutes (Supp. 1996). Thus, contrary to Petitioners’ argument, Respondent’s rule is not an invalid exercise of delegated legislative authority in that the rule does not enlarge, modify, or contravene the specific provisions of the law implemented, i.e., Section 232.465, Florida Statutes (Supp. 1996).

31. Respondent’s policy of using paraprofessionals to perform catheterization is a district-wide policy and existed prior to the enactment of Section 232.465, Florida Statutes (Supp. 1996). The said statute permitted the policy to continue, but certain statutory conditions were mandated in order for the policy to continue. Respondent has complied with the statutory conditions.

32. The Division of Administrative Hearings lacks subject matter jurisdiction to decide issues of constitutionality. Myers v. Hawkins, 362 So. 2d 926, 928 (Fla. 1978); Department of Revenue v. Amrep Corp., 358 So. 2d 1343, 1349 (Fla. 1978). Thus,

no ruling can or will be made by the undersigned regarding the constitutionality of Respondent’s rule.

CONCLUSION

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

ORDERED that:

1. The Broward County School Board’s practice and procedure of utilizing paraprofessionals to provide catheterization services to disabled students attending its schools is a rule as defined in Subsection 120.52(15), Florida Statutes.

2. The Broward County School Board failed to engage in rulemaking in adopting the rule.

3. The rule is not an invalid exercise of delegated legislative authority in that the rule does not contravene the specific provisions of the law being implemented, i.e., Section 232.465, Florida Statutes (Supp. 1996).

4. Jurisdiction is retained only for the purpose of awarding reasonable costs and reasonable attorney’s fees. DONE AND ORDERED this 18th day of February, 2000, in

Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2000.

ENDNOTES

1/ Petitioners initially entitled the pleading "Combined Motion for Summary Final Order and Motion in Opposition to Respondent’s Motions to Dismiss Amended Petition, to Strike Portions of the Amended Petition, and for More Definite Statement as to Amended Petition." Subsequently, Petitioners corrected the pleading’s title to " Combined Reply to Motion for Summary Final Order and Motion in Opposition. "

2/ Petitioners refer to cleaning intermittent catheterization. The correct medical terminology is clean intermittent catheterization. Cleaning intermittent catheterization is considered to be clean intermittent catheterization.

3/ The documents regarding CS/SB 1114 are vital to an appropriate and informed decision on this case but they were not included in the documents filed by the parties for consideration. The undersigned researched the documents for CS/SB 1114 at the State of Florida Archives and obtained copies of the documents referred to in this Final Order. The documents referred to are included as a part of the record.

4/ Ibid.

5/ Ibid.

COPIES FURNISHED:

John J. Chamblee, Jr., Esquire Juan A. Pyfrom, Esquire Chamblee & Johnson, P.A.

709 West Azeele Street Tampa, Florida 33606

Edward J. Marko, Esquire Robert Paul Vignola, Esquire Broward County School Board

600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301

Dr. Frank R. Petruzlelo, Superintendent Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SEEK JUDICIAL RELIEF

1. This decision and its findings are final, unless an adversely affected party:

   
   

   1. brings a civil action within 30 days in the appropriate federal district court pursuant to Section 1415(i)(2)(A) of the Individuals with Disabilities Education Act (IDEA); [Federal court relief is not available under IDEA for students whose only exceptionality is "gifted"] or

   2. brings a civil action within 30 days in the appropriate state circuit court pursuant to Section 1415(i)(2)(A) of the IDEA and Section 230.23(4)(m)5, Florida Statutes; or

   3. files an appeal within 30 days in the appropriate state district court of appeal pursuant to Sections 230.23(4)(m)5 and 120.68, Florida Statutes.

Docket for Case No: 97-005974RX

Orders for Case No: 97-005974RX