STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CHIROPRACTIC ) ASSOCIATION, INC., AND MARC H. ) KALMANSON, d/b/a HOLISTIC ) HEALTHCARE CONSULTANTS, INC., )

)

Petitioners, )

)

vs. )

) DEPARTMENT OF HEALTH, DIVISION ) OF MEDICAL QUALITY ASSURANCE, )

)

Respondent. )

Case No. 04-4477RP

)

FINAL ORDER

Claude B. Arrington, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing in Tallahassee, Florida, on January 18, 2005.

APPEARANCES

For Petitioners: Paul Watson Lambert, Esquire

Lambert Law Firm

1026 East Park Avenue Tallahassee, Florida 32301-2673

For Respondent: Donna Erlich, Esquire

Department of Health

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

STATEMENT OF THE ISSUES

Whether the proposed changes to proposed Rule 64B-5.001 published in the Florida Law Weekly (FAW) on December 17, 2004, (the proposed changes), constitute an invalid exercise of

delegated legislative authority pursuant to the provisions of Section 120.56(1) and (2), Florida Statutes (2004).1

Whether the proposed changes are inconsistent with the Final Order entered in DOAH Case 04-3172RP on November 23, 2004.

PRELIMINARY STATEMENT

On November 23, 2004, the undersigned entered a Final Order in DOAH Case 04-3172RP pertaining to Respondent’s proposed rules 64B-5.001 and 64B-5.002. The Final Order was not appealed by either party.

In response to the Final Order entered in DOAH Case 04- 3172RP, Respondent published notice in the FAW on December 17, 2004, that it intends to adopt the proposed changes to proposed rule 64B-5.001. On December 4, 2004, Petitioners filed their “Amended Petition for the Determination of the Invalidity of Changed Proposed Rule” alleging that the proposed changes were invalid exercises of delegated legislative authority in that the proposed changes exceed Respondent’s rulemaking authority and/or that they enlarge, modify, or contravene the specific provisions of law implemented. Petitioners also argue that the proposed changes to the proposed rule are inconsistent with the Final Order entered in DOAH Case 04-3172RP. The Amended Petition was assigned DOAH Case 04-4477RP.

Pursuant to notice, the final hearing in DOAH Case 04- 4477RP was conducted January 18, 2005. At the final hearing the

parties offered three joint exhibits, each of which was admitted into evidence. Joint Exhibit 1 is a copy of the proposed changes to the proposed rule. Joint Exhibit 2 is a copy of the Final Order entered in DOAH Case 04-3172RP. Joint Exhibit 3 is a copy of the transcript of the final hearing conducted

October 11, 2004, in DOAH Case 04-3172RP.

At the hearing conducted January 18, 2005, the parties made oral presentations in support of their respective positions, but presented no witnesses and no exhibits other than the three joint exhibits. No transcript of the hearing conducted

January 18, 2005, has been filed. The parties waived the right to submit proposed final orders.

FINDINGS OF FACT FINDINGS OF FACT; DOAH CASE 04-3172RP

The following findings of facts set forth in the Final Order entered by the undersigned on November 23, 2004, in DOAH Case 04-3172RP are readopted.

1. Petitioner Florida Chiropractic Association, Inc. (FCA) is a Florida not-for-profit corporation and a trade association whose membership consists of chiropractic physicians. The FCA presents five three-day conventions annually in various sections of the state for chiropractic physicians who may take and receive continuing education credit for the hours of instruction that are presented at the conventions. Continuing education

   programs that qualify for continuing education credit are determined by the Board of Chiropractic Medicine pursuant to Sections 456.013(6) and 460.408, Florida Statutes, and Florida Administrative Code Rule 64B2-13.004.

2. There is no specific statute requiring that a continuing education provider for licensees of the Board of Chiropractic Medicine apply to the Board and receive status as an “approved provider” before one of its continuing education programs will be approved. Notwithstanding the lack of that statutory requirement, at all times relevant to this proceeding FCA had applied to and had received from the Board of Chiropractic Medicine approval to serve as a continuing education provider.

3. FCA has standing to bring this Petition.

   
   

4. Petitioner Marc Kalmanson, MSN, LMT, RYT, OM, d/b/a Holistic Healthcare Consultants, Inc. (Holistic Healthcare), presents continuing education courses to licensed massage therapists, which courses are approved by the Board of Massage Therapy pursuant to Section 480.0415, Florida Statutes, and Florida Administrative Code Rule 64B7-28.010.

5. There is no specific statute requiring that a continuing education provider for licensees of the Board of Massage apply to the Board and receive status as an “approved provider” before one of its continuing education programs will

   be approved. Notwithstanding the lack of that statutory requirement, at all times relevant to this proceeding Holistic Healthcare had applied to and had received from the Board of Massage approval to serve as a continuing education provider.

6. Holistic Healthcare has standing to bring this Petition.

7. The proposed rules were published in the FAW,

   
   

   Volume 30, Number 30 on July 23, 2004. Petitioners’ challenge is limited to the proposed definition of “approved provider.”

8. There is no statutory definition of the term “approved provider.” Proposed Rule 64B-5.001(1) defines the term “approved provider” as follows:

   1. “Approved provider” means a person as defined in s. 1.01(3), Florida Statutes, that is required to be approved by a board, or the department when there is no board, to provide continuing education or whose programs are required to be approved by a board, or the department when there is no board. “Approved provider” also means an institution of higher learning or school that is required to be approved by a board, or the department when there is no board, to provide continuing education or whose programs are required to be approved by a board, or the department when there is no board. (Emphasis added.)

      
      

9. Proposed rule 64B-5.002 requires all “approved providers” to submit to the applicable board, or to the department when there is no board, certain data so that the board or department, as appropriate, can track the continuing

   education credits for each licensee. The parties stipulated that the ease or difficulty that Petitioners may experience in complying with continuing education tracking requirements has no bearing on the validity or invalidity of the proposed rules.

10. Each proposed rule cites as its “specific authority” Sections 456.004(5) and 456.025(7), Florida Statutes, and cites as the “law implemented” Sections 456.013(9) and 456.025(7), Florida Statutes.

11. Section 456.004, Florida Statutes, confers certain powers and responsibilities on the Department of Health including subsection (5), which provides as follows:

    The department, for the professions under its jurisdiction, shall:

    
    

    * * *

    
    

    (5) Adopt rules pursuant to ss. 120.536 (1) and 120.54 to implement the provisions of this chapter.

    
    

12. Section 456.025(7), Florida Statutes, provides, in relevant part, as follows:

    (7) . . . The department shall implement an electronic continuing education tracking system for each new biennial renewal cycle for which electronic renewals are implemented after the effective date of this act and shall integrate such system into the licensure and renewal system. All approved continuing education providers shall provide information on course attendance to the department necessary to implement the electronic tracking system. The department shall, by rule, specify the form and

    procedures by which the information is to be submitted. (Emphasis added.)

    
    

13. Section 456.013(9), Florida Statutes, provides, in relevant part, as follows:

    (9) Any board that currently requires continuing education for renewal of a license, or the department if there is no board, shall adopt rules to establish the criteria for continuing education courses.

    . . .

    
    

    FINDINGS OF FACT; DOAH CASE 04-4477RP

    
    

14. The Final Order entered in DOAH Case 04-3172RP ordered the following:

    1. The following portion of the definition of “an approved provider” set forth in the proposed rule is invalidated as an invalid exercise of delegated legislative authority: “ . . . a person as defined in

       s. 1.01(3), Florida Statutes, . . . whose programs are required to be approved by a board, or the department when there is no board.”

    2. Petitioners’ remaining challenges are dismissed.

    
    

15. Respondent caused the following “Second Notice of Change [sic]” pertaining to proposed rule 64B-5.001 to be published in the FAW, Volume 30, Number 51 on December 17, 2004:

    Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1, F.S., published in Vol. 30, No. 30, July 23, 2004, issue of the [FAW]. The changes are in response to the Final Order issued in DOAH Case No. 04-3172RP on November 23, 2004.

    Section (1) of the rule shall now read as follows:

    1. “Approved provider” means a person approved by the board, or the department when there is no board, to provide continuing education or whose continuing education program has been approved by a board, or the department when there is no board.

       “Approved provider” also means an institution of higher learning or a school approved by a board, or the department when there is no board, to provide continuing education or whose continuing education program has been approved by a board, or the department when there is no board.

       
       

       CONCLUSIONS OF LAW

       
       

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.56, Fla. Stat.

17. Section 120.56(2)(a), Florida Statutes, establishes the burden of proof pertinent to this proceeding as follows:

    . . . The petitioner has the burden of going forward. The agency has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.

    
    

18. Pursuant to Section 120.56(2)(c), Florida Statutes, a proposed rule is not presumed to be valid or invalid.

19. The standard of proof is a preponderance of the evidence. See §§ 120.56(2)(a) and 120.57(1)(j), Fla. Stat.

20. Section 120.52(8), Florida Statutes, defines "invalid exercise of delegated legislative authority" to mean:

    . . . 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.

    
    

    * * *

    
    

    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.

    
    

21. The final paragraph of Section 120.52(8), Florida Statutes, is frequently referred to as the “flush left” language of the statute.

22. Section 120.536(1), Florida Statutes, states as follows:

    1. 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.

       
       

23. In Southwest Fla. Water Management District v. Save

    
    

    the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000), the Court observed:

    [I]n reviewing for the specific authority for a rule, the issue is not whether the grant of authority is “specific enough,” but whether the enabling statute grants legislative authority for the rule at issue:

    
    

    It follows that the authority for an administrative rule is not a matter of degree. The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough.

    Either the enabling statute authorizes the rule at issue or it does not.

24. The Final Order in DOAH Case 04-3172RP and this Final Order recognize the distinction between a provider “whose programs are required to be approved by a board or the department when there is no board” and a provider “whose continuing education program has been approved by a board, or the department when there is no board.”2 As reflected by the Final Order in DOAH Case 04-3172RP, there is no statutory authority to regulate continuing education providers merely because their programs will have to be approved by a board or the department. A continuing education provider who has submitted a program for approval and has received that approval is in a different status. The provisions of Sections 456.025(7) and 456.013(9), Florida Statutes, provide the Department sufficient statutory authority to define the term “approved provider” to include a continuing education provider whose program has been approved by a board or the Department, as applicable. Once the provider has applied for and received approval for its program, it has become an approved provider and it is subject to the continuing education reporting requirements adopted by Respondent as mandated by the provisions of Chapter 456, Florida Statutes, set forth above.

25. At the Final Hearing, counsel for Petitioners argued that the Final Order entered in DOAH Case 04-3172RP contained inconsistencies. After carefully reviewing the Final Order and

considering counsel’s argument, it is concluded that the Final Order contains no inconsistency and that it is unnecessary to amend or clarify that Final Order. The undersigned also rejects as being without merit the argument by counsel for Petitioners that the proposed changes to the proposed rule at issue in DOAH Case 04-4477RP are inconsistent with the Final Order entered in

DOAH Case 04-3172RP.

FINAL ORDER

Based on the foregoing findings and conclusions, it is ORDERED that Petitioners’ challenges to the proposed changes to the proposed rule are dismissed.

DONE AND ORDERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 4th day of February, 2005.

ENDNOTES

1/ All statutory references are to Florida Statutes (2004).

2/ See, paragraph 23 of the Final Order entered in DOAH Case 04- 3172RP.

COPIES FURNISHED:

Donna Erlich, Esquire Department of Health

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

Michael Flury, Esquire

Office of the Attorney General Board of Massage

The Capitol, Plaza 01 Tallahassee, Florida 32399-1050

Paul Watson Lambert, Esquire Lambert Law Firm

1026 East Park Avenue Tallahassee, Florida 32301-2673

Timothy M. Cerio, General Counsel Department of Health

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

Gary L. Asbell, Esquire Office of the Attorney General Suite PL-01, The Capitol Tallahassee, Florida 32399

Scott Boyd

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

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Building Tallahassee, Florida 32399-0250

R. S. Power, Agency Clerk Department of Health

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

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

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701

Dr. John O. Agwunobi, Secretary Department of Health

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

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: 04-004477RP

Orders for Case No: 04-004477RP