STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD ALLEN FREIBERG, )

)

Petitioner, )

)

vs. ) Case No. 03-2964RX

) DEPARTMENT OF HEALTH, BOARD ) OF ACCUPUNCTURE, )

)

Respondent. )

)

FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on September 15, 2003.

APPEARANCES

For Petitioner: Richard Allen Freiberg, pro se

750 East Sample Road (2-209) Pompano Beach, Florida 33064

For Respondent: Gary L. Asbell

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue is whether the following rules are invalid exercises of delegated legislative authority: Florida Administrative Code Rules 64B1-2.008; 64B1-6.002(1), (4) (only the following language: "is responsible for filing provider approval applications and"), (5), (8) (only the following

language: ". . .n approved"), and (10) (only the following language: "individual,"); 64B1-6.005(4); 64B1-6.006(1), (8) (only the following language: "approved"), and (11);

64B1-6.007(1) and (2); and 64B1-6.008(1) and (2).

PRELIMINARY STATEMENT

By Petition to Determine the Invalidity of Rules 64B1-2008 [sic], 64B1-6.002, 64B1-6.005, 64B1-6.006, 64B1-6.007,

64B1-6.008, 64B1-6.009 and 64B1-6.010, Petitioner challenged the cited rules as invalid exercises of delegated legislative authority.

At the start of the hearing, the Administrative Law Judge reduced the scope of the issues. The rules challenged and the statutory bases for each challenge are as follows:

Rule 64B1-2.008 Section 120.52(8)(b), (c),

and (f)

Rule 64B1-6.002(1) Section 120.52(8)(b), (c),

(d), and (e)

Rule 64B1-6.002(4) Section 120.52(8)(b), (c),

(only: "is respon- (d), and (e) sible for filing

provider approval applications and")

Rule 64B1-6.002(5) Section 120.52(8)(b), (c),

(d), and (e)

Rule 64B1-6.002(8) Section 120.52(8)(b), (c),

(only: ". . .n (d), and (e) approved")

Rule 64B1-6.002(10) Section 120.52(8)(b), (c),

(only: (d), and (e) "individual")

Rule 64B1-6.005(4) Section 120.52(8)(b), (c),

(d), and (e)

Rule 64B1-6.006(1) Section 120.52(8)(b), (c),

(d), and (e)

Rule 64B1-6.006(8) Section 120.52(8)(b), (c),

(only: "approved") (d), and (e)

Rule 64B1-6.006(11) Section 120.52(8)(b) and (c) Rule 64B1-6.007(1) Section 120.52(8)(b), (c),

(d), and (e)

Rule 64B1-6.007(2) Section 120.52(8)(b), (c),

and (f)

Rule 64B1-6.008(1) Section 120.52(8)(b), (c),

1. , and (e)

   
   

   Rule 64B1-6.008(2) Section 120.52(8)(b), (c),

2. and (f)

   
   

   At the hearing, Petitioner called two witnesses and offered into evidence five exhibits: Petitioner Exhibits 1-5.

   Respondent called no witnesses and offered into evidence two exhibits: Respondent Exhibits 1-2. All exhibits were admitted except Petitioner Exhibit 1.

   On September 26, 2003, Respondent filed its Motion for Attorney's Fees Pursuant to Section 57.105(1) through (5), Florida Statutes (2003). On October 8, 2003, Petitioner filed his Motion to Strike, as Sham Pleadings, Respondent's Motion for Attorney Fees Pursuant to Section 57.105(1) through (5), Florida

   Statutes (2003) and Petitioner's Motion(s) for Punitive Sanctions of Respondent and Respondent's Attorney and Award Petitioner Costs. These motions are denied.

   The court reporter filed the transcript on October 20, 2003. The parties filed their Proposed Final Orders by October 30, 2003.

   FINDINGS OF FACT

   
   

   1. Petitioner received his degree in Acupuncture and Oriental Medicine in 1997. He subsequently obtained a license, under Chapter 457, Florida Statutes (2003), and is now an acupuncture physician, practicing Acupuncture and Oriental Medicine. Petitioner has been a member of numerous acupuncture organizations.

   2. Respondent has approved Petitioner, individually, as a continuing education provider, under provider number BP02-92. To obtain such approval, Petitioner has twice paid Respondent

      $100 for a two-year approval as an acupuncture continuing education provider.

   3. Respondent has also approved the Acupuncture and Oriental Medicine National Coalition Corp. (NCC), which is a Florida for-profit corporation, as an acupuncture continuing education provider. Incorporated on March 3, 2003, NCC has paid Respondent $100 for approval as an acupuncture continuing education provider. Petitioner and David Sontag are the sole

      officers, directors, and shareholders of NCC. Each shareholder owns half of the company's stock.

   4. The purpose of NCC is to raise the standards of the acupuncture profession nationally, including educational standards, and to support the advancement of "acupuncture and oriental medicine." NCC has about 300 members residing in Florida and 1000 members nationally. Membership, which is free, entitles the member to benefits, such as access to information on the NCC website and negotiated discounts from other service providers, but not to rights in governing the corporation. Respondent has approved NCC as a "State or National Acupuncture and Oriental Medicine Organization," pursuant to Section 457.107(3), Florida Statutes (2003).

   5. In November 2001, Petitioner coordinated an acupuncture continuing education program in Fort Lauderdale for another provider. In 2002, Petitioner sponsored an acupuncture continuing education program in Florida on electro-acupuncture. On August 23, 2003, Petitioner taught a weekend acupuncture continuing education program sponsored by NCC.

   6. Petitioner obtained Respondent's approval for the electro-acupuncture course, but the process took nine months to complete. However, the record is insufficient to determine the cause or causes for the delay and, thus, who was responsible for it. At least 60 days before conducting the course, Petitioner

      paid the $50 program approval fee and submitted the approval forms. When Petitioner inquired about the approval, Respondent's executive director advised him to provide the course, pending approval. Petitioner thus was unable to advertise the course as approved by Respondent and instead advertised only that the sponsor had applied for Respondent's approval.

   7. Nearly 100 persons attended the electro-acupuncture course, paying $65 each. However, Petitioner netted only $350 on the program because of the expenses in advertising the program, renting a hotel, and other items.

   8. NCC obtained Respondent's approval for its course in August 2003 within two weeks of submitting its application. NCC submitted the required forms and the required $100 check. Persons attending the NCC course received their acupuncture continuing education credits from Respondent.

   9. Petitioner is substantially affected by the rules that he has challenged. Petitioner has sponsored an acupuncture continuing education course and, as an employee, taught another course that was sponsored by NCC. It may be reasonably expected that Petitioner will participate in future acupuncture continuing education programs in one or both of these capacities. The rules concerning a filing fee for approval require a modest fee, but NCC's net on the one course for which

      detailed financial information was provided suggests that the provider is substantially affected by even a modest fee, given the relatively little profit that ensued from that course.

   10. In their entirety, the subject rules in this case are as follows (challenged portions underlined):

       64B1-2.008 Continuing Education Program Approval Fee.

       
       

       The continuing education program approval fee shall be $50.

       
       

       Specific Authority 457.104, 457.107(3), Florida Statutes. Law Implemented 457.107(3), Florida Statutes. History–New 5-

       12-87, Amended 9-15-92, Formerly 21AA-2.008, 61F1-2.008, 59M-2.008, Amended 10-15-97.

       
       

       64B1-6.002 Definitions.

       
       

       1. “Approved” means acceptable to the Florida Board of Acupuncture.

       2. “Board” means Florida Board of Acupuncture.

       3. “Committee” means Committee on Continuing Education of the Board.

       4. “Contact Person” means one who is responsible for filing provider approval applications and insures compliance with these rules, maintains complete rosters of participants, and is knowledgeable about the provider’s program(s).

       5. “Correspondence Program” means an approved program offered by mail with a defined course of study to be completed by the participant for which an evaluation of performance is made and a rating of satisfactory or unsatisfactory completion of the course is given by the provider.

       6. “Credit Hour” means a minimum of 50 minutes and a maximum of 60 minutes of class time. One-half (1/2) credit hour

          means a minimum of 25 minutes and a maximum of 30 minutes of class time.

       7. “Department” means the Department of Health.

       8. “Participant” means an acupuncturist who attends a program presented by an approved provider in order to achieve the stated objectives of the program.

       9. “Program” means a planned educational experience dealing with a specific content based on the stated objectives.

       10. “Provider” means the individual, organization or institution conducting the continuing education program.

           
           

           Specific Authority 456.013, 456.025,

           456.033, 457.104, 457.107(3) Florida

           Statutes. Law Implemented 456.013, 456.025,

           456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Formerly 21AA-6.002, 61F1-6.002, Amended 1-16-97, Formerly 59M-6.002.

           
           

           64B1-6.005 Standards for Approval of Continuing Education Credit.

           
           

           1. A continuing education program must contribute to the advancement, extension or enhancement of the licensee’s skills and knowledge related to the practice of acupuncture and oriental medicine. Programs should concern the history and theory of acupuncture, acupuncture diagnosis and treatment techniques, techniques of adjunctive therapies, acupuncturist-patient communication and professional ethics. All continuing education courses are subject to evaluation and approval by the Board to determine that the continuing education course meets the criteria established by the Board which has final determination as to the number of hours of acceptable credit that will be awarded for each program.

           2. Each program offered for continuing education credit must be presented or taught by a person who at a minimum holds a bachelor’s degree from an accredited college

              or university or a post-secondary education institution licensed by the State of Florida, with a major in the subject matter to be presented; or has graduated from a school of acupuncture, or has completed a tutorial program which has a curriculum equivalent to the requirements in this state and was approved by a state licensing authority, a nationally recognized acupuncture/oriental medicine association or a substantially equivalent accrediting body, and has completed three (3) years of professional experience in the licensed practice of acupuncture; and has a minimum of two (2) years teaching experience in the subject matter to be presented, or has taught the same program for which approval is sought a minimum of three (3) times in the past two (2) years before a professional convention, professional group or at any acupuncture school, or has completed specialized training in the subject matter of the program and has a minimum of two (2) years of practical experience in the subject.

           3. In order to meet the continuing education requirements, the continuing education program submitted by the licensee must meet the criteria established by the Board.

           4. No credit will be given for programs which are primarily devoted to administrative or business management aspects of acupuncture practice.

           5. To receive credit for programs on HIV/AIDS, the program must be, at a minimum, two (2) hours in length and must address the areas mandated in Section 456.033, F.S. The Board accepts HIV/AIDS programs presented or conducted by the Department of Health and programs approved by other professional regulatory boards for the health professions.

           6. Continuing education programs related to laboratory test or imaging findings shall be designed to provide course content on the clinical relevance of laboratory and

           diagnostic tests and procedures as well as biomedical physical examination findings and to advance, extend or enhance the licensee’s skills and knowledge related to the safe and beneficial use of laboratory test and imaging findings.

           
           

           Specific Authority 456.013(9), 456.033,

           457.104, 457.107(3), Florida Statutes. Law

           Implemented 456.013(9), 456.033, 457.107(3),

           Florida Statutes. History–New 2-24-88, Amended 8-6-89, Formerly 21AA-6.005,

           61F1-6.005, Amended 3-18-97, Formerly 59M- 6.005, Amended 6-1-99, 1-7-03.

           64B1-6.006 Requirements for the Provider. Each provider shall:

           1. File all information necessary for

              provider and program approval on Forms DOH/AP007, Continuing Education Course Approval Applications, DOH/AP006, Continuing Education Provider Approval, which are hereby incorporated by reference and

              will be effective 2-18-98, copies of which may be obtained from the Board office.

           2. Insure that the continuing education program(s) presented by the provider complies with these rules.

           3. Maintain a complete, alphabetized, legible roster of participants for a period of 3 years following each program presentation.

           4. Maintain a “sign-in” sheet and a “sign- out” sheet with the signatures of participants.

           5. Provide each participant with a certificate certifying that the participant has successfully completed the program. The certificate shall not be issued until completion of the program and shall contain the provider’s name, title of program, date of program, location, and number of credit hours.

           6. Notify the Board of any significant changes relative to the maintenance of standards as set forth in these rules.

           7. Ensure that no person receives credit for the same program more than once.

           8. Notify the Board of any change in the presenters or instructors of any approved program, and demonstrate the new instructor meets the criteria set forth in subsection 64B1-6.005(2), F.A.C.

           9. Designate a contact person who assumes responsibility for each program, and who is knowledgeable about each program. The contact person shall notify the Board of any significant changes in programs or a lapse in the maintenance of standards.

           10. In a correspondence continuing education program, each provider is responsible for obtaining from each certificateholder a signed statement which states that the participant did in fact read the material, performed the exercises and took the examination personally.

           11. A clearly defined refund policy shall be in the flyer.

           12. There shall be adequate personnel to assist with administrative matters and personnel with competencies outside content areas in cases when the method of delivery requires technical or other special expertise.

           13. Providers shall maintain records of individual offerings for inspection by the Board; records shall include subject matter, objectives, faculty qualifications, evaluation mechanisms, credit hours and rosters of participants.

           
           

           Specific Authority 456.013, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013, 457.107(3), Florida

           Statutes. History–New 2-24-88, Amended 7-25- 88, Formerly 21AA-6.006, 61F1-6.006, Amended 3-18-97, Formerly 59M-6.006, Amended

           2-18-98.

           
           

           64B1-6.007 Preapproved Providers.

           
           

           1. Subject to the requirements of Rule 64B1-6.005 and subsections 64B1-6.007(3)

              through (5), F.A.C., the Board approves for continuing education credit programs offered by:

              (a) The Continuing Education Committee of the American Association of Oriental Medicine (AAOM);

              (b) The Florida State Oriental Medicine Association (FSOMA);

              (c) Individual member schools of the Colleges of Acupuncture and Oriental Medicine (CCAOM); and

              (d) The National Alliance for Acupuncture and Oriental Medicine.

           2. A nonrefundable processing fee of $50 must be submitted with each registration of course offering.

           3. Each program offering shall contain:

              1. A detailed program outline or syllabus;

              2. A current curriculum vitae of each speaker or lecturer;

              3. The procedure to be used for recording attendance; and

              4. Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C.

           4. Upon processing of a program offering, the Board will assign an identification number to that program.

           5. Upon receipt by the provider of the course identification number, the provider may identify the program as “approved by the Florida Board of Acupuncture for purposes of Continuing Education Credit” in any flyer or other advertisement.

           Specific Authority 456.013(7), (8), (9),

           457.104, 457.107(3), Florida Statutes. Law

           Implemented 456.013(7), (8), (9),

           457.107(3), Florida Statutes. History–New 2-

           24-88, Formerly 21AA-6.007, Amended 7-4-94, Formerly 61F1-6.007, Amended 4-10-97, Formerly 59M-6.007.

           
           

           64B1-6.008 Process for Program Approval.

           1. Each program to be offered by an approved provider must be approved by the Board. Applications for approval Form DOH/AP007, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office shall be submitted to the Board Office at least 60 days prior to the date of presentation.

           2. Each program application shall contain:

              1. A detailed program outline or syllabus;

              2. A current curriculum vitae of each speaker or lecturer;

              3. The procedure to be used for recording attendance;

              4. Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C.; and

              5. A nonrefundable fee of $50.00.

           3. Upon approval of a program, the Board will assign an identification number to that program.

           4. If approved, the provider may identify the program as “approved by the Florida Board of Acupuncture for Purposes of Continuing Education Credit” in any flyer or other advertisement.

           
           

           Specific Authority 456.013(7), (8), (9),

           457.104, 457.107(3), Florida Statutes. Law

           Implemented 456.013(7), (8), (9),

           457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.008, 61F1-6.008,

           Amended 1-16-97, Formerly 59M-6.008, Amended 2-18-98.

           
           

   11. The forms mentioned in Florida Administrative Code Rule 64B1-6.006(1) involve two approval processes. Form DOH/AP007, which is also mentioned in Rule 64B1-6.008(1), is the application for Respondent's approval of the provider. Form

       DOH/AP006 is the application for Respondent's approval of the program.

   12. Form DOH/AP007 comprises two pages of instructions, a copy of Florida Administrative Code Rule 64B1-6.005, and a four- page application.

   13. The instructions state: "Application Fee: $100 (Non- Refundable). The remainder of the instructions explain the items set forth in the application. The checklist at the end of the instructions restates the requirement to submit a $100 check or money order.

   14. The first page of the application states: "$100 non- refundable application fee." It asks whether the application is a "renewal application." The first page also asks the name of the "organization" and its "continuing education director," as well as contact information, such as mailing address. The first page asks four questions:

       1. Does your organization monitor attendance to assure those in attendance have been present for the entire program for which they receive credit?

          
          

       2. Does your organization assign an identifiable person to be present at continuing education activities who is responsible for recording attendance?

          
          

       3. Does your organization have facilities available to store records for at least 3 years?

       4. Have you attached a curriculum vitae for each instructor?

       
       

   15. The first page concludes with an affidavit signed by the continuing education director, although not notarized, and stating that he or she represents that the information in the completed form is accurate and will comply with the rules contained in Florida Administrative Code Chapter 64B1-6.006.

   16. The second page of the application is a certificate of completion. It requests the name, license number, and address of the licensee attending the program; the name and address of the provider; and the site, course title, continuing education hours awarded, and name of the instructor.

   17. The third page of the application is Form C: Course Offering Data Form. This page requires the provider to list the educational objectives of the course and the continuing education hours and subject matter for each objective. The form also requires the identification of the teaching methods.

   18. The fourth page of the application is Form D: Course Offering Data Form. This page requires the provider to list the name and job title of each instructor and his or her relevant education and experience.

   19. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP006 comprises one page of instructions, a copy of Florida Administrative Code Rules,

       4B1-6.005 and 64B1-6.008, and a three-page application, the last two pages of which are identical to the last two pages of the Form DOH/AP007 application.

   20. The first numbered instruction requires: "Prior to offering or advertising a continuing education course, the provider must have registered by way of submitting this application: the course, along with any materials to be offered and the name and qualifications of the instructor . . .." This instruction warns: "If you have failed to submit all of the above, you will not be eligible to offer the course for continuing education credit. NO RETROACTIVE CREDIT IS GRANTED BY THE BOARD."

   21. The second numbered instruction requires the provider to submit any material to be used in a home-study course. The third numbered instruction requires a "nonrefundable fee of $50" with "each program application."

   22. The first page of the application requires identifying information for the provider and program, as well as disclosure of whether the course for which approval is sought is a previously approved course with a new or additional instructor, a new course, or a previously approved course with different credit hours. The first page also states that instructors must meet the qualifications of Florida Administrative Code Rule 64B1-6.005(2)(a) or (b).

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.56 (1) and 120.569, Fla. Stat.

   24. Section 120.56(1)(a), Florida Statutes, authorizes a determination of the invalidity of a rule if it is an "invalid exercise of delegated legislative authority." Section 120.52(8), Florida Statutes, states that an "invalid exercise of delegated legislative authority"

       . . . means 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 of the following applies:

       
       

       * * *

       
       

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

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

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

       4. The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or

       5. 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.

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.

1. Petitioner has the burden of proving by a preponderance of the evidence that the challenged rules are invalid exercises of delegated legislative authority. Compare

   Section 120.56(1)(e), Florida Statutes (2003), with Section 120.56(2)(a), Florida Statutes.

2. Florida Administrative Code Rule 64B1-2.008 imposes an approval fee of $50 for each acupuncture continuing education course that Respondent approves.

3. Legislative changes taking place in 1998, as part of Chapter 98-418, Laws of Florida, affect the statutes that are relevant to this case. Statutory deletions are displayed by strike-through, and statutory additions are displayed by underlining.

4. Section 457.107(3), Florida Statutes, governs the authority of Respondent to impose fees in connection with continuing education. Section 457.107(3) provides, in relevant part: "The board shall have the authority to set a fee, not to exceed $100, for each continuing education provider or program submitted for approval."

5. Clearly, by deleting the above-quoted language of Section 457.107(3), Florida Statutes, the Legislature withdrew the authority of Respondent to impose a fee upon a program submitted for approval by a provider. Petitioner has thus proved that Florida Administrative Code Rule 64B1-2.008 enlarges, contravenes, or modifies the statute cited by the rule as the law implemented.

6. This result is consistent with Section 456.025(7), Florida Statutes, which authorizes each board to impose a fee upon continuing education providers, not programs, for the purpose, among others, of monitoring programs. Section 456.025(7), Florida Statutes, provides:

   Each board, or the department if there is no board, shall establish, by rule, a fee not to exceed $250 for anyone seeking approval to provide continuing education courses or programs and shall establish by rule a biennial renewal fee not to exceed $250 for the renewal of providership of such courses. The fees collected from continuing education providers shall be used for the purposes of reviewing course provider applications, monitoring the integrity of the courses

   provided, covering legal expenses incurred as a result of not granting or renewing a providership, and developing and maintaining an electronic continuing education tracking system. . . .

   
   

7. Florida Administrative Code Rule 64B1-6.002 contains various definitions. Petitioner's challenge to all but the word, "individual" in Rule 64B1-6.002(10) is based largely on his claim that Respondent lacks the authority to approve courses and lacks the authority to adopt rules requiring the approval of courses.

8. However, the statutes grant Respondent sufficient rulemaking authority for Florida Administrative Code Rule

   64B1-6.002(1) and (5) and the challenged portions of (4), given its limited purpose, as discussed below. Section 456.013(9), Florida Statutes, authorizes Respondent to adopt rules to establish the criteria for continuing education courses.

   Section 457.104, Florida Statutes, authorizes Respondent to adopt rules to implement the provisions of Florida Statutes Chapter 457 "conferring duties upon it." Section 457.107(3), Florida Statutes, authorizes Respondent to adopt rules to prescribe continuing education requirements of not more than 30 hours every two years, "as a condition for renewal of a license." Immediately following this provision, Section 457.107(3) adds: "All education programs that contribute to the advancement, extension, or enhancement of professional skills

   and knowledge related to the practice of acupuncture, whether conducted by a nonprofit or profitmaking entity, are eligible for approval." The effect of these rules is to authorize Respondent to adopt rules defining a process that requires its approval of continuing education courses.

9. A separate question arises as to the extent of Respondent's authority. Florida Administrative Code Rule 64B1-6.002(1) merely defines "approved" and does not do so in

   the context of providers or programs. The challenged portion of Florida Administrative Code Rule 64B1-6.002(4) refers to the person who files "provider approval applications," and the challenged portion of Florida Administrative Code Rule

   64B1-6.002(8) refers to an "approved provider"; both of these provisions thus apply to the approval of providers, not programs. In contrast, Florida Administrative Code Rule

   64B1-6.002(5) refers to a correspondence course as an "approved program," so this provision applies to the approval of programs, not providers.

10. Section 456.012(9), Florida Statutes, authorizes Respondent to adopt rules to establish the criteria for continuing education courses, so Florida Administrative Code Rule 64B1-6.002(5) does not enlarge, modify, or contravene the statutes implemented. This rule merely establishes criteria governing correspondence courses used to satisfy the acupuncture

    continuing education requirement. Because Respondent has a legitimate role in the approval of courses, Florida Administrative Code Rule 64B1-6.002(1) also does not enlarge, modify, or contravene the statutes implemented.

11. As Petitioner has pointed out, these conclusions as to Florida Administrative Code Rules 64B1-6.002(1) and (5) find no support in the Legislative history of the 1998 statutory amendments. Chapter 98-418, Section 4, Laws of Florida, deleted from Section 457.107(3), Florida Statutes (1997) the following sentence: "The criteria for such programs or courses [not more than 30 hours every two years] shall be approved by the board." Legislative history suggests an effort to eliminate Respondent's authority to approve acupuncture continuing education courses, but the Legislature did not delete the following sentence from Section 457.107(3), Florida Statutes: "All education programs that contribute to the advancement, extension, or enhancement of professional skills and knowledge related to the practice of acupuncture . . . are eligible for approval." (Emphasis supplied.) Respondent's authority to approve courses is thus implicit in Section 457.107(3), Florida Statutes, as it is explicit in Section 456.013(9), Florida Statutes, and Legislative history to the contrary cannot override the clear language of relevant statutes.

12. On the other hand, there is no authority for rules approving providers, rather than courses. Section 456.025(7), Florida Statutes, states that each board may use the provider- approval fee of up to $250 for, among other things, "reviewing course provider applications." However, such language provides no basis for inferring the authority of Respondent to adopt rules governing the approval of providers. Such an inference would violate the flush language of Section 120.52(8), Florida Statutes, which provides, in part:

    An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation

    . . ..

    
    

13. Section 457.107(3), Florida Statutes, declares: "All national and state acupuncture and Oriental-medicine organizations and acupuncture and Oriental-medicine schools are approved to provide continuing professional education in accordance with this subsection." As noted below, Petitioner contends, in its challenge to Florida Administrative Code Rule 64B1-6.002, which defines a "provider" to include an "individual," that Section 457.107(3) limits approved providers to organizations and schools. Not surprisingly, Respondent notes that such an interpretation would adversely affect Petitioner's standing.

14. However, the Legislative declaration that all "national and state acupuncture and Oriental-medicine organizations and acupuncture and Oriental-medicine schools" are approved as acupuncture continuing education providers means that these entities are statutorily approved, not that all others are statutorily excluded from providing acupuncture continuing education. Respondent's construction of this statute correctly concludes that the statutes do not preclude natural persons from providing continuing education programs.

15. Respondent's analysis of this issue, in its proposed final order, unfortunately stops at this point, but the question nonetheless remains whether Respondent has statutory authority to approve providers--natural persons or otherwise. No statute does so.

16. Thus, the challenged portion of Florida Administrative Code Rule 64B1-6.002(4) appears to enlarge, modify, or contravene the statutes purportedly implemented because the statutes do not require the submission of provider-approval applications to Respondent. However, the provider-approval form, Form DOH/AP007, as discussed below, serves the purpose of facilitating Respondent's lawful collection of provider fees. Limiting the provider-approval form as detailed below, the challenged portion of the definition of "contact person" does not enlarge, modify, or contravene the law implemented. Also,

    Section 457.104, Florida Statutes, gives Respondent the authority to adopt this rule, which is not vague, arbitrary, or capricious.

17. The challenged portion of Florida Administrative Code Rule 64B1-6.002(8) mentions "an approved provider." Such a phrase might mean the types of organizations or schools approved in Section 457.107(3), Florida Statutes, discussed in the preceding paragraph, but it might also mean a provider approved by Respondent. Consistent with the interpretation offered above as to the meaning of the cited portion of Section 457.107(3), the inclusion of ". . .n approved" in front of "provider" implies an approval process that finds no statutory support, so the challenged portion of Rule 64B1-6.002(8) enlarges, modifies, or contravenes the statutes purportedly implemented.

18. As already noted, the previously discussed provision of Section 457.107(3), Florida Statutes, approving certain organizations or schools as acupuncture continuing education providers does not preclude natural persons from providing such programs, so the challenged portion of Florida Administrative Code Rule 64B1-6.002(10) does not enlarge, modify, or contravene the statutes implemented.

19. Petitioner also argues that these provisions of Florida Administrative Code Rule 64B1-6.002 are vague, fail to establish adequate standards for agency decisions, vest

    "unbridled discretion in the agency," or are arbitrary or capricious. Although the omission of "reasonable" from the definition of "approved" in Florida Administrative Code Rule 64B1-6.002(1) invites a wide range of discretion, Petitioner has not demonstrated that the discretion is "unbridled" or that the rule is vague.

20. Respondent's discretion in Florida Administrative Code Rule 64B1-6.002(1) is reasonably limited because the approval process applies only to programs, and Section 457.107(3), Florida Statutes, provides detailed guidance for the approval of specific programs. The statute provides: "The continuing professional education requirements must be in acupuncture or oriental medicine subjects, including, but not limited to, anatomy, biological sciences, adjunctive therapies, sanitation and sterilization, emergency protocols, and diseases."

21. Petitioner has failed to prove that Florida Administrative Code Rules 64B1-6.002(1) and (5) and the challenged portions of Rules 64B1-6.002(4) and (10) are vague, fail to establish adequate standards for agency decisions, vest "unbridled discretion in the agency," or are arbitrary or capricious.

22. Florida Administrative Code Rule 64B1-6.005(4) prohibits continuing education credit for programs that are

    "primarily devoted to administrative or business management aspects of acupuncture practice."

23. Petitioner has raised the same four challenges to this rule that he did to the portions of Florida Administrative Code Rule 64B1-6.002 discussed above. For the reasons discussed above with respect to Florida Administrative Code Rule

    64B1-6.002(5), which pertains to the approval of a course, not a provider, Petitioner has failed to prove its contentions concerning Rule 64B1-6.005(4). These are also the grounds of the ruling at the start of the hearing striking Petitioner's challenge of Rule 64B1-6.005(1) (last sentence) and (3), which pertain to Respondent's approval of courses or programs, not providers.

24. Florida Administrative Code Rule 64B1-6.006 imposes various requirements on acupuncture continuing education providers. Rule 64B1-6.006(1), which Petitioner challenges in its entirety, requires providers to file "all information necessary for provider and program approval" on Forms DOH/AP007 and DOH/AP006. Rule 64B1-6.006(8), within which Petitioner challenges only the word, "approved," requires a provider to notify Respondent of any change in course instructors of approved programs to assure that the new instructors meet the requirements of Florida Administrative Code Rule 64B1-6.005(2), which details the educational requirements of instructors and

    was not challenged by Petitioner. Rule 64B1-6.006(11) requires that the program flyer contain a "clearly defined refund policy."

25. Petitioner has raised the same four challenges to Florida Administrative Code Rule 64B1-6.006(1) and (8) that he did to the portions of Florida Administrative Code Rule 64B1-

    6.002 discussed above. For the reasons discussed above with respect to Florida Administrative Code Rule 64B1-6.002(5), which pertains to the approval of a course, not a provider, Petitioner has failed to prove its contentions concerning Florida Administrative Code Rule 64B1-6.006(8).

26. Petitioner's challenge to Florida Administrative Code Rule 64B1-6.006(1) is to Forms DOH/AP007 and DOH/AP006. The rule remains valid, but, as discussed below, portions of these forms, which are incorporated into this rule, are invalidated. These forms are the application forms for Respondent's approval of providers and courses, respectively.

27. As already discussed, Respondent lacks the statutory authority to approve providers, but this does not mean that the Form DOH/AP007 is necessarily invalid for all purposes.

28. The first item of importance in Form DOH/AP007 is the

    
    

    $100 application fee. Section 457.107(3), Florida Statutes, authorizes the board to set a fee of up to $100 "for each

    continuing education provider." The statute does not provide for repeated collection of this fee.

29. The frequency with which Respondent imposes this $100 fee is unclear. Nothing in the rules provides that the $100 fee is a periodic fee or that the provider must reapply periodically, such as every two years. Nothing in Form DOH/AP007 suggests a term limiting the duration of Respondent's approval of the application. However, Form DOH/AP007 asks if the application is a renewal application, and testimony suggests that Respondent has collected this fee every two years.

30. As previously noted, Section 456.025(7), Florida Statutes, authorizes boards to impose a fee of up to $250 on continuing education providers and requires boards to establish by rule a "biennial renewal fee" for the "renewal of providership" of continuing education courses. Although this fee primarily relates to obtaining the board's approval of the provider, which is not a responsibility of Respondent, other purposes include monitoring the integrity of continuing education courses, which is a responsibility of Respondent. Respondent may thus adopt a rule imposing the $100 fee every two years, pursuant to its implementation of Section 456.025(7), Florida Statutes.

31. Florida Administrative Code Rule 64B1-6.006 does not cite Section 456.025(7), Florida Statutes, as a statute implemented. Section 120.52(8)(c), Florida Statutes, prohibits a rule from enlarging, modifying, or contravening the "specific provisions of law implemented, citation to which is required by

    s. 120.54(3)(a)1." The "citation" clause of Section 120.52(8)(c) does not establish an independent basis on which challengers may seek the invalidation of rules; the clause merely refers the reader to another statute that governs the rulemaking process, as it takes place. Thus, Respondent may rely upon Section 456.025(7), Florida Statutes, in imposing the

    $100 provider fee every two years.

    
    

32. The next item of importance in Form DOH/AP007 is the question: "Is this a renewal application?" Imposing a fee upon providers every two years and requiring providers to file renewal applications every two years are separate requirements. As already noted, the statutes do not generally authorize Respondent to approve providers of continuing education courses, although Respondent may lawfully use the Form DOH/AP007, as modified by this Order, to collect the provider fee every two years, so this question in the form, as adopted by Florida Administrative Code Rule 64B1-6.006(1), does not enlarge, modify, or contravene the law implemented.

33. The four main questions on the first page of the application ask if the provider monitors attendance at continuing education programs, assigns a person to record attendance at continuing education programs, has facilities available to store records for at least three years, and has attached to the application a curriculum vitae for each instructor.

34. It is impossible to dispute the necessity of monitoring and recording attendance at continuing education courses, maintaining records (or, perhaps more disputable, having facilities available to maintain records), or assuring the competence of a provider's instructors. The question is whether any statute authorizes Respondent to perform these administrative functions, as part of its regulation of acupuncture continuing education. No statute affirmatively places such responsibility with Respondent.

35. To the contrary, the last sentence of Section 456.013(9), Florida Statutes, provides: "The department shall adopt rules for administering continuing education requirements adopted by the boards or the department if there is no board." It is the Department of Health, not Respondent, that has rulemaking authority to regulate the administration of continuing education programs. The four main questions on the first page therefore enlarge, modify, or contravene Section

    456.013(9), Florida Statutes, and are not otherwise authorized by statute. (The authority of Respondent to examine the qualifications of instructors is considered separately in the context of program approvals, pursuant to Form DOH/AP006.)

36. The next item of importance in Form DOH/AP007 is the certificate of completion, which is to be completed by the instructor for each program attendee. The form asks only for basic information and is unobjectionable on its face, but no statute authorizes Respondent to obtain this information as part of a provider-approval process. The form thus enlarges, modifies, or contravenes the law implemented.

37. In the context of a provider-approval form, it is nearly impossible to assess the remaining pages of the application that is part of Form DOH/AP007, which are the Form B: Course Offering Data Form (covering, for each course, learner objectives, continuing education credits for each objective, subject method, and teaching method), and Form C: Course Offering Data Form (covering, for each course, the name of each instructor and his or her relevant education and experience).

    No provider can complete these forms until it identifies a specific course. The inclusion of these two forms, which are also part of Form DOH/AP006, therefore enlarges, modifies, or contravenes the law implemented and is probably arbitrary, as well.

38. Although Respondent has authority to approve programs, the first numbered instruction on the program-approval form, Form DOH/AP006, requires that, prior to offering or advertising a continuing education course, the provider must submit the application that is part of Form DOH/AP006. No statute authorizes Respondent to impose the requirement of the submission of the course application before offering or advertising a particular course. Likewise, no statute authorizes the following warning that Respondent will not award any credit for a course, if the provider has failed to submit an application prior to offering or advertising the course, and possibly prior to conducting the course. These requirements enlarge, modify, or contravene the law implemented, and the prohibition against "retroactive" credit is unlawfully vague, as

    well.

    
    

39. The second numbered instruction requires that the

    
    

    provider submit the course materials that will be used in a home-study course. This requirement does not enlarge, modify, or contravene the law implemented for the reasons, discussed above, applicable to Florida Administrative Code Rule 64B1- 6.002(5), which addresses a "correspondence program."

40. The third numbered instruction requires a $50 fee for each program application. For the reasons, discussed above, applicable to Florida Administrative Code Rule 64B1-2.008, which

    also establishes a $50 program approval fee, this requirement enlarges, modifies, or contravenes the law implemented.

41. The remainder of Form DOH/AP007 does not enlarge, modify, or contravene the law implemented. As already discussed, Respondent has statutory authority in approving programs that it lacks in approving providers. Much of the remaining information concerns the qualifications of instructors, which is largely covered by Florida Administrative Code Rule 64B1-6.005--a rule that Petitioner has not challenged, except for a minor provision withholding credit for courses devoted primarily to administrative or business management aspects of acupuncture practice. The remainder of the form-- specifically, Form B--addresses the specific courses, which is within Respondent's authority to establish criteria for continuing education courses.

42. As for the remainder of Petitioner's challenges to the portions of Forms DOH/AP007 and DOH/AP006 not invalidated above, Petitioner has failed to prove that Respondent exceeded its grant of rulemaking authority; these portions of the forms are vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or these portions of the forms are arbitrary or capricious.

43. Petitioner's remaining challenge to Florida Administrative Code Rule 64B1-6.006 is to subsection (11), which

    requires that the program flyer contain a clearly defined refund policy. Like the requirement of prior approval of courses, this refund-policy disclosure is an effective consumer-protection provision. However, as was true with the prior-approval requirement, no statute authorizes the refund-disclosure requirement, so Rule 64B1-6.006(11) enlarges, modifies, or contravenes the law implemented.

44. Petitioner challenges Florida Administrative Code Rule 64B1-6.007(1), which provides Respondent's approval of four entities or categories of entities as continuing education providers. The specified entities appear to fall squarely within the last sentence of Section 457.107(3), Florida Statutes, and nothing in the rule implies that the specified entities constitute an exhaustive list of providers, so this rule does not enlarge, modify, or contravene the law implemented.

45. However, Respondent has exceeded its rulemaking authority in adopting Florida Administrative Code Rule

    64B1-6.007(1). Nothing in Florida Statutes Chapter 457 imposes upon Respondent the duty to approve providers, so Section 457.104, Florida Statutes, does not authorize the adoption of Rule 64B1-6.007(1).

46. For the reasons discussed in connection with Florida Administrative Code Rule 64B1-2.008, Florida Administrative Code

    Rule 64B1-6.007(2), which imposes the same $50 fee for registering individual programs, enlarges, modifies, or contravenes the law implemented.

47. Petitioner challenges Florida Administrative Code Rule 64B1-6.008(1) and (2)(e). Rule 64B1-6.008(2)(e) imposes the $50 fee for the approval of individual programs, so it enlarges, modifies, or contravenes the law implemented for the reasons referenced in the preceding paragraph.

48. Florida Administrative Code Rule 64B1-6.008(1) refers to programs approved by Respondent that are offered by an approved provider, requires the use of Form DOH/AP007, and requires the submission of the form at least 60 days prior to the presentation of the course. These items have all been addressed above. Respondent may lawfully approve programs, but may not lawfully refer to "approved providers" for the reasons discussed above in connection with Florida Administrative Code Rule 64B1-6.002(8). The remaining use of Form DOH/AP007 is to collect biennial provider fees, so it has no logical use in the program-approval process detailed in Rule 64B1-6.002(8). (It is unclear why this rule does not incorporate Form DOH/AP006, which is a program-approval form that remains largely intact.)

Lastly, Respondent may not lawfully require the advance approval of programs. Florida Administrative Code Rule 64B1-6.008(1) is thus invalid in its entirety.

ORDER

It is

ORDERED that:

1. The following rules or portions of rules are invalidated as invalid exercises of delegated legislative authority: Florida Administrative Code Rule 64B1-2.008; Rule 64B1-6.002(8) (only: ". . .n approved"); in Rule 64B1-6.006(1), the following portions of Form DOH/AP007: the four questions on the first page of the application under "record keeping," the second page of the application known as the certificate of completion, and the third and fourth pages of the application concerning course and instructor information; in Rule

   64B1-6.006(1), the following portions of Form DOH/AP006: the first numbered instruction requiring advance submission of the program application and prohibiting retroactive credits for courses and the third numbered instruction imposing a $50 fee for each program application; Rule 64B1-6.006(11), Rules

   64B1-6.007(1) and (2), and Rules 64B1-6.008(1) and (2)(e).

   
   

2. Petitioner's challenge to the remaining rules is dismissed.

DONE AND ORDERED this 26th day of November, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 26th day of November, 2003.

COPIES FURNISHED:

William H. Buckhalt Executive Director Board of Acupuncture Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Richard Allen Freiberg

750 East Sample Road (2-209) Pompano Beach, Florida 33064

Gary L. Asbell Department of Health

4052 Bald Cypress Way, Bin #A02 Tallahassee, Florida 32399-1703

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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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: 03-002964RX

Orders for Case No: 03-002964RX