STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA MEDICAL ASSOCIATION, )

)

Petitioner, )

)

vs. ) Case No. 99-4167RP

) DEPARTMENT OF HEALTH, BOARD OF ) PODIATRIC MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on November 8, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

John M. Knight, Esquire Florida Medical Association

113 East College Avenue Tallahassee, Florida 32301

For Respondent: Ann Cocheu, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Respondent's proposed Rule 64B18-23.001, Florida Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On October 4, 1999, Petitioner Florida Medical Association filed its Petition to Determine the Invalidity of Proposed Rule challenging proposed Rule 64B18-23.001, Florida Administrative Code, promulgated by Respondent Department of Health, Board of Podiatric Medicine.

At the final hearing Petitioner presented the testimony of Lynn J. Romrell, Ph.D., and James B. Dolan, M.D. The Board presented the testimony of Stephen M. Meritt, D.P.M. Additionally, Petitioner's Exhibits numbered 1 and 2 and the Board's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted proposed final orders after the conclusion of the evidentiary hearing. Those documents have been considered in the entry of this Final Order.

FINDINGS OF FACT

1. Petitioner Florida Medical Association is a statewide organization of approximately 16,000 physicians and osteopathic physicians licensed in Florida pursuant to Chapters 458 and 459, Florida Statutes, respectively. Petitioner assists Florida physicians in improving the health and welfare of the citizens of the State of Florida by representing the physicians in regulatory, legislative, and educational venues.

2. Respondent Department of Health, Board of Podiatric Medicine, is the regulatory body responsible for regulating podiatrists licensed pursuant to Chapter 461, Florida Statutes.

3. Section 461.003(5), Florida Statutes, provides that:

   
   

   'Practice of podiatric medicine' means the diagnosis or medical, surgical, palliative, and mechanical treatment of ailments of the human foot and leg. The surgical treatment of ailments of the human foot and leg shall be limited anatomically to that part below the anterior tibial tubercle. The practice of podiatric medicine shall include the amputation of the toes or other parts of the foot but shall not include the amputation of the foot or leg in its entirety. A podiatrist may prescribe drugs that relate specifically to the scope of practice authorized herein.

   
   

4. Medically and anatomically, the term "leg" means that part of the lower extremity below the anterior tibial tubercle, i.e., below the knee. The region above the knee is referred to as the "thigh." These are basic anatomy terms and definitions used by healthcare professionals, including podiatrists. These basic terms are found in the textbooks used to teach podiatric students, and podiatric schools use these definitions when requesting body parts from the State Anatomical Board.

5. In response to an insurance carrier denying a claim on the basis that a podiatrist had treated a patient beyond the scope of the practice of podiatry, the Board considered the statutory definition of the practice of podiatric medicine. It

   discovered that some textbooks include a secondary definition for the term "leg" as being the entire lower extremity. The Board determined, therefore, that it would promulgate a rule using the secondary definition of leg rather than the medical or anatomical definition. It also determined it would define the term "surgical treatment," which appears in the statute.

6. The Board's Proposed Rule 64B18-23.001, Florida Administrative Code, contains the following definitions:

   1. The term "human leg," as used in s.461.003(5), Florida Statutes, means the entire lower extremity, extending from the head of the femur to the foot, but does not include the hip joint.

      
      

   2. The term "surgical treatment," as used in s.461.003(5), Florida Statutes, means a distinctly operative kind of treatment, such as a cutting operation. As such, injections, x-rays, and other medical, palliative, and mechanical diagnostic techniques and treatments are not surgery.

      
      

      Specific Authority 461.005 FS. Law Implemented 461.003(5) FS. History -- New.

      
      

7. The definition of leg in the proposed rule expands the scope of practice authorized by the statute. The definition of surgical treatment in the proposed rule expands the scope of practice authorized by the statute and creates confusion in that certain diagnostic techniques do fall under the medical definition of surgical treatment.

8. The proposed rule substantially affects orthopedic physicians, vascular surgeons, physical medicine rehabilitation physicians, plastic surgeons, family practitioners, and other physicians in Florida, including those represented by Petitioner, in that under the proposed rule the practice of podiatry is expanded to include areas of the body treated by physicians and not by podiatrists and to allow podiatrists to perform procedures not previously authorized. Petitioner has an interest in assuring that patients are treated by appropriately trained personnel practicing within their authorized scope of practice.

9. The proposed rule substantially affects the general healthcare of patients in the State of Florida. This is a concern for the physicians represented by Petitioner since these physicians are often involved in treating patients who have been inappropriately treated by other professionals. The proposed rule allows podiatrists to practice beyond their areas of training and expertise.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.56(1) and (2), 120.569, and 120.57(1), Florida Statutes.

11. The Board has the burden of proving that its proposed rule is not an invalid exercise of delegated legislative authority. Section 120.56(2)(a), Florida Statutes. The Board has failed to carry its burden.

12. The Board has rulemaking authority in certain areas only. Section 461.005, Florida Statutes, provides as follows:

    The Board of Podiatric Medicine is authorized to make such rules not inconsistent with law as are necessary to carry out the duties and authority conferred upon the board by this chapter and as may be necessary to protect the health, safety, and welfare of the public.

    
    

13. Nowhere in Chapter 461 or in Sections 461.003(5) or

    
    

    461.005 is the Board granted the authority to define the scope of practice of podiatric medicine nor is defining the scope of practice of podiatric medicine a duty conferred upon the Board. Further, the Board offered no evidence to show that the proposed rule is necessary to protect the health, safety, and welfare of the public; rather, the evidence is uncontroverted that the reason for the proposed rule is to assist podiatrists in having their bills paid by insurance carriers. Accordingly, the Board has exceeded its grant of rulemaking authority. Section 120.52(8)(b), Florida Statutes.

14. Interestingly, the Board's position, as stated in the Prehearing Stipulation filed in this cause, is that this rule challenge "is a turf battle properly considered in the

    legislative, not the administration [sic] arena." The Board is correct that only the Legislature can define the scope of practice for podiatric physicians, not the Board.

15. The Board argues a very narrow interpretation of the standing necessary to challenge its proposed rule. The Board argues that only podiatrists can challenge a rule of the Board of Podiatric Medicine. Since the proposed rule authorizes an expanded scope of practice, it is unlikely that podiatrists would challenge it. Under the Board's narrow interpretation of standing, its proposed rule is essentially immune from challenge, an outcome contrary to Section 120.56, Florida Statutes.

16. Petitioner does have standing to challenge the Board's proposed rule. Petitioner represents physicians with an interest in ensuring that patients are treated by appropriately trained personnel practicing within their authorized scope of practice. Further, Petitioner represents the interests of physicians who were exclusively authorized to treat patients from the knee to the hip, which the proposed rule, not the underlying statute, would authorize podiatrists to also treat.

17. The proposed rule is an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(e) and (f), Florida Statutes, in that it is arbitrary and capricious and the

    definitions contained therein are not supported by competent or substantial evidence.

18. The proposed rule is also an invalid exercise of delegated legislative authority in that it violates the requirements of Section 120.536(1), Florida Statutes. That Section requires that agencies only promulgate rules that implement or interpret specific powers and duties. Section 461.003(5), Florida Statutes, does not grant the power or confer the duty on the Board to define the term leg or the term surgical treatment.

CONCLUSION

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

ORDERED THAT Proposed Rule 64B18-23.001(1) and (2) is an invalid exercise of delegated legislative authority.

DONE AND ORDERED this 30th day of December, 1999, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 30th day of December, 1999.

COPIES FURNISHED:

Francesca Plendl, Esquire John M. Knight, Esquire Florida Medical Association

113 East College Avenue Tallahassee, Florida 32301

Ann Cocheu, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Joe Baker, Jr., Executive Director Board of Podiatric Medicine Department of Health

BIN C07

2020 Capital Circle, Southeast Tallahassee, Florida 32399-3257

Angela T. Hall, Agency Clerk Department of Health

BIN A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

BIN A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Carroll Webb

Executive Director and General Counsel Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief Department of State

Bureau of Administrative Code The Elliott Building 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 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: 99-004167RP

Orders for Case No: 99-004167RP