The Issue Whether Respondent’s Rule 59R-11.001, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Chelation therapy is the introduction of a man-made amino acid into a patient’s vein. It has been approved by the U.S. Food and Drug Administration and is used for the treatment of heavy medal toxicity and the removal of lead. American Board of Chelation Therapy (ABCT) is an autonomous organization that provides education and certification to any physician who wishes to become knowledgeable in Chelation therapy. ABCT was established in 1982 for the purpose of establishing the criteria necessary for certification in the area of Chelation therapy. The Board of Medicine is a statutory entity, established by Chapter 458, Florida Statutes, as the primary regulatory authority for the practice of allopathic medicine in the State of Florida. Pursuant to section 458.301, Florida Statutes, the legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The section further provides that the primary legislative purpose in enacting the medical practices act is to “ensure that every physician practicing in this state meets minimum requirements for safe practice.” In keeping with the legislative mandate to ensure that purpose of the medical practices act, the legislature created the Board of Medicine and authorized the Board to create administrative rules for the purpose of implementing chapter 458. Rule 59R-11.001, Florida Administrative Code, is the advertising rule of the Board of Medicine.3 The rule codifies provisions of section 458.331(1)(d), Florida Statutes, and provides criteria for identifying false, deceptive, or misleading advertising. In particular, the rule governs advertising on physician letterhead and limits the use of the term “specialist” unless the specialty is recognized by (1) a specialty board of the American Board of Medical Specialties (ABMS) or (2) a board that meets the requirements of Rule 59R-11.001, Florida Administrative Code. For those specialties recognized by organizations that do not meet the requirements of the rule, the physicians may still advertise their specialty so long as they provide a disclaimer. By rule the disclaimer must state the following “The Specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Medicine.” ABMS is generally recognized in the United States as the agency that approves allopathic medical specialty boards and the Board of Medicine has historically relied upon ABMS and its standards and, as reflected in the current rule, continues to rely on ABMS and its standards for approving recognizing agencies. On July 17, 1995, the Petitioner, ABCT submitted an application to Florida Board of Medicine for the purpose of being certified as a “recognizing agency” pursuant to rule 59R-11.001. ABCT is not a specialty board of the ABMS. Because ABCT is not a member board of the ABMS, the Board of Medicine looked to the requirements of rule 59R- 11.001(2)(f) to determine whether ABCT met the criteria enunciated in the rule and whether it is therefore a “recognizing agency” capable of bestowing specialty status on a physician. Rule 59R-11.001(2)(f), Florida Administrative Code, provides that non-ABMS Boards may seek recognition as “recognizing agencies” if they meet the following criteria: The recognizing agency must be an independent body that certifies members as having advanced qualifications in a particular allopathic medical specialty through peer review demonstrations of competence in the specialty being recognized. Specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada that includes substantial and identifiable training in the allopathic specialty being recognized. Specialty recognition must require successful completion of a comprehensive examination administered by the recognizing agency pursuant to written procedures that ensure adequate security and appropriate grading standards. The recognizing agency, if it is not an ABMS board, must require as part of its certification requirement that each member receiving certification be currently certified by a specialty board of the ABMS. The recognizing agency must have been determined by the Internal Revenue Service of the United States to be a legitimate not for profit entity pursuant to Section 501 (c) of the Internal Revenue Code. The recognizing agency must have full time administrative staff, housed in dedicated office space which is appropriate for the agency’s program and sufficient for responding to consumer or regulatory inquiries. The recognizing agency must have written by-laws, and a code of ethics to guide the practice of its members and an internal review and control process including budgetary practices, to ensure effective utilization of resources. However, a physician may indicate the service offered and may state that practice is limited to one or more types of services when this is in fact the case; On April 15, 1996, the Board of Medicine issued an order denying the ABCT’s application for specialty status. As basis for the denial, the order stated that the application of the ABCT failed to establish compliance with the requirements for approval as set forth in Rule 59R-11.001(2)(f), Florida Administrative Code. Specifically, the order stated: The requirements for diplomat status in ABCT do not require advanced qualifications in a particular allopathic medicine specialty; specialty recognition given by ABCT does not require completion of an allopathic medical residency program approved by the ACGME or the Royal College of Physicians and Surgeons of Canada that include substantial and identifiable training in the allopathic specialty being recognized; specialty recognition provided by the ABCT does not require successful completion of a comprehensive examination pursuant to written procedures that ensure adequate security and appropriate grading standards in that ABCT requires only a score of 60% to pass the examination, the examination consists of true false questions and answers, and the examination is not a medically comprehensive examination; ABCT is not an ABMS board and does not require that each member it certifies be currently certified by an ABMS board; and ABCT has not provided evidence that it is a legitimate not-for-profit entity pursuant to Section 501(c) of the Internal Revenue Code as determined by the Internal Revenue Service. Each of the requirements of rule 59R-11.001(2)(f) were addressed at the administrative hearing. With regard to criteria (1) of rule 59R-11.001(2)(f), advanced qualifications in a particular allopathic medical specialty through peer review, the ABCT does not require an advanced qualification in a particular allopathic medical specialty. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(1). Criteria (2) of rule 59R-11.001(2)(f) provides that the specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada. The ACGME is generally recognized as the organization that sets criteria for graduate medical education in the United States. The Board of Medicine has incorporated that recognition in the rule by requiring that the advanced education component of the rule be ACGME approved. The Royal College of Physicians and Surgeons of Canada is ACGME’s counterpart in Canada. With regard to criteria (2) of rule 59R-11.001(2)(f), ABCT does not require completion of an allopathic residency program approved by either the ACGME or the Royal College of Physicians and Surgeons of Canada. In fact, ABCT has no requirement for a residency program. ABCT reasoned that a there is no need for a residency program for Chelation therapists because Chelation therapy does not require overnight hospital stay. The only requirement remotely relating to residency is an ABCT requirement that applicants for diplomat status administer a minimum of 1000 Chelation treatments. There is no requirement that these treatments be supervised and no requirement for verification that the minimum number of treatments were administered. With regard to criteria (3) of rule 59R-11.001(2)(f), requiring successful completion of a comprehensive examination, ABCT does not require all applicants for diplomat status to complete a written examination in order to obtain certification. Specifically, some candidates are grandfathered in without being required to complete the written examination. For those applicants that are required to submit to an examination, Dr. Arthur L. Koch testified that the examination is composed of approximately sixty percent true/false questions. In addition, Dr. Koch testified that another ten percent of the test is not medically oriented but rather addresses the history and politics of Chelation therapy in the United States. At the hearing, ABCT submitted its Spring 1994 examination as an exhibit. That examination contained a majority true/false questions and a few multiple choice questions. To pass the ABCT diplomat examination, the candidate is required to achieve a score of 62.5 percent. In contrast, the Board of Medicine generally requires a passing score of at least 75%. The Board of Medicine expressed concern about the low passing score accepted by ABCT on its certification examination. The Board of Medicine also expressed concern over the large number of true/false questions used in the example examination submitted by ABCT. Uncontroverted testimony was presented at the hearing to support a finding that an examination consisting of a majority of true/false questions is not a viable method of testing knowledge. With regard to criteria (4) of rule 59R-11.001(2)(f), requiring members of non-ABMS boards to also be certified by a specialty board of the ABMS, the ABCT does not require that each physician seeking diplomat status be currently certified by an ABMS specialty board. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(4). With regard to criteria (5) of rule 59R-11.001(2)(f), that the recognizing agency must be a legitimate not for profit entity under the Internal Revenue Code, evidence was presented to verify that ABCT is a non-profit, tax-exempt organization. With regard to criteria (6) of rule 59R-11.001(2)(f), requiring the recognizing agency to have full-time administrative staff sufficient to respond to consumer or regulatory inquiries, no evidence was presented at the hearing relating to this criteria. With regard to criteria (7) of rule 59R-11.001(2)(f), requiring the recognizing agency to have written by-laws and a code of ethics to guide the practice of its members, ABCT submitted its Constitution and Bylaws as adopted in March of 1982 and subsequently amended. The Constitution and bylaws, however, did not include a written code of ethics and therefore did not fully comply with the requirements of the rule.
The Issue Whether the Respondent properly denied the Petitioner’s request to be a “recognizing agency” within the parameters of Rule 59R-11.001, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that in Case No. 96-3173, the Board of Medicine enter a Final Order denying ABCT’s application for approval as a “recognizing agency” pursuant to Rule 59R-11.001, Florida Administrative Code.DONE and ENTERED this 5th day of June, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1997.
The Issue Whether Respondent violated a rule of the Board of Medicine or the Department by advertising in a deceptive or misleading manner, thereby violating a provision of Chapter 458, Florida Statutes, which makes a licensee subject to disciplinary action if found guilty of violating a rule of the Board or Department.
Findings Of Fact Respondent has been licensed as a physician by the Florida Board of Medicine since 1976 and holds license number ME0026906. He has completed a residency program in his speciality of orthopedics but has not been Board certified in this speciality by a member board of the American Board of Medical Specialists. Respondent identifies himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on letterhead on correspondence mailed from his office. He has been so designated by this Academy since 1980. Respondent also identified himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on various correspondence disseminated to Associated Insurance Brokers Claims Management in regard to patient E.S. Although Respondent contends that he did not intend his identification on his letterhead as a diplomate to be advertising, he did acknowledge that such designation enhances his stature as an orthopedic surgeon. Many insurance carriers approve for payment higher patient charges assessed by various specialists. Respondent testified that in order to be designated as a diplomate of the American Academy of Neurological and Orthopedic Surgeons he had to pass a rigorous examination; however, no evidence was submitted from which a comparison could be made between this designation and a similar designation from a Board approved by the American Board of Medical Specialists (ABMS). The American Academy of Neurological and Orthopedic Surgeons is not now and never has been a member of the American Board of Medical Specialties. Nor has it ever pertitioned the Florida Board of Medicine for recognition as a speciality board. The American Federation of Medical Accreditation, which recognizes the American Academy of Neurological and Orthopedic Surgeons, has never been a member board of the American Board of Medical Specialists; nor has the Federation ever petitioned the Florida Board of Medicine for approval as a recognizing agency for medical specialties.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered finding Edward Neil Feldman guilty of violation of Sections 458.331(1)(d) and (x), Florida Statutes; and that he be given an official reprimand and fined $2,000.00. DONE AND RECOMMENDED this 20th day of December, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3804 Proposed findings submitted by Petitioner are accepted. Proposed findings submitted by Respondent are accepted except as noted below: Accepted as testimony of Dr. Feldman. However, no evidence was submitted comparing this test to the test given by a speciality board approved by the ABMS. Second sentence rejected. By stating he is a diplomate, Respondent implies certain recognition. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected. See Hearing Officer #5 and #6. See Hearing Officer #5 and #6. Rejected as irrelevant. 15. Respondent's attempt to equate the notice on letterhead that Respondent was a diplomate to an entry in a curriculum vitae (c.v.) is misplaced. A c.v. is similar to a professional life history and is totally inapt for advertising. The same cannot be said when the achievement is placed on a letterhead. 18. Rejected. COPIES FURNISHED: Britt Thomas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Thomas Saieva, Esquire SAIEVA & WALSH, P.A. 800 West DeLeon Street Tampa, Florida 33606-2722 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues herein, the FBM, Respondent herein, was the state agency responsible for the licensing of medical doctors in Florida and the regulation of the practice of medicine in this state. Petitioner is a medical doctor licensed by the Board to practice in Florida. The parties stipulated to the following facts, and it is so found: The Florida Board of Medicine employs no specific criteria for the recognition of practitioners as specialists for advertising purposes other than the rule. The Board of Medicine has not reviewed the activities of the ABMS as it relates to its criteria for the recognition of specialists. The FBM has never adopted written standards, policies or guidelines governing the actions of the ABMS or their separately incorporated, financially independent member boards. The ABMS has never petitioned or applied to the FBM to be considered as a recognizing agency pursuant to Rule 61F6-24.001(2)(f), formerly rule 21M-24.001(2)(f). There are no written standards relating to qualifications for "recognizing agencies" as the term is used in the above-mentioned rule. Pursuant to the rule, the FBM designated specialty boards of the ABMS, a private organization, to be recognizing agencies without establishing any written standards or guidelines for the recognition of a physician as a specialist. The ABMS does not, itself, establish specific criteria standards or requirements for the certification of particular physician specialists. The ABMS utilizes guidelines and requirements established by separately incorporated, financially independent bodies known as specialty boards. The FBM has established no written standards, policies or guidelines to which the ABMS must adhere relating to the recognition of individual practitioners as specialists. The FBM has adopted no rules relating to the regulation or recognizing agencies as defined by the rule. The FBM has not established criteria relating to the qualification of non-ABMS organizations as recognizing agencies under the rule. The FBM has no input into the standards employed by the separately incorporated boards. There are no FBM rules requiring ABMS compliance. The FBM has no mechanism for review of the actions of either the ABMS or its separately incorporated boards. Regardless of standards employed by groups which recognize physicians as specialists, if the groups are not member organizations of the ABMS, advertising specialty achievements of these groups is not permitted under Florida law. Petitioner has been licensed as a physician by the FBM since 1976. He has completed a residency program in orthopedics but has not been certified in this specialty by a member board of the ABMS. However, he identifies himself as a diplomate of the American Academy of Neurological and Orthopedic Surgeons on his letterhead on correspondence mailed from his office and on various correspondence sent to Associated Insurance Brokers Claims Management in regard to a patient. Though he claims he did not intend his letterhead identification as a board diplomate to be advertising, he acknowledged such designation enhanced his stature as an orthopedic surgeon and many insurance carriers approve higher patient charges for various specialists. Thereafter, the FBM initiated disciplinary action against Petitioner on the basis that his "advertising" was in violation of rule 61F6-24.001(2)(f), F.A.C. which prohibited false, deceptive or misleading advertising, and which implied those conditions if the advertising stated or implied the physician was formally recognized as a specialist in a medical specialization unless such recognition was by an agency recognized by the ABMS or another FBM approved agency. Petitioner subsequently filed this challenge to that rule. In the interim, a Division of Administrative Hearings Hearing Officer held a formal hearing on the disciplinary administrative Complaint and on December 20, 1993, entered a Recommended Order in which he found that Petitioner had disseminated the alleged letterhead and that constituted advertising. Since the specialty certification was by an agency not recognized by the ABMS or any other approved recognizing agency, Petitioner was in violation of the rule. The FBM was scheduled to act on the Recommended Order at its meeting to be held on February 4 - 6, 1994. Whether such action was taken, or the nature thereof are not known to the undersigned. Dr. Michael Rask, a medical doctor licensed to practice in Oregon, California, Nevada, and Arizona, and certified in orthopedic surgery by an ABMS recognized board, is Chairman of the Board of the American Academy of Neurological and Orthopedic Surgeons, (Academy). The Academy is an educational, nonprofit, eleemosynary society of physicians and surgeons across America located in Las Vegas, Nevada. It has some international members. It is accredited by the American Federation for Medical Accreditation, (Federation), of which Dr. Rask is also the Chairman. The Federation has close to 50 specialty and sub-specialty boards in its membership, 35 of which are also members of the Academy. Membership in the Academy is neither illegal nor inconsistent with the lawful practice of medicine in Florida. Petitioner, Dr. Feldman, has been a member of the Academy since 1980. The Academy has approximately 650 certified members. For certification in orthopedic surgery as a specialty, the Academy requires completion of a five year residency in that service, in addition to 3 years practice experience. Both a written and an oral examination are required. The tests are formulated by the Academy's national examination committee who are members of the Academy. Between 50 and 60 percent of the committee members are also certified by ABMS recognized specialty boards, but Dr. Rask was unable to identify the members without reference to the Academy's archives, which were not available. Failure rate on the examinations runs from 25 to 28 percent and Dr. Rask feels the tests are comparable to those administered by ABMS member boards. The Academy publishes periodic medical journals edited by Dr. Rask as a part of its educational program and certifies continuing medical education courses accepted by both Texas and California as well as, "maybe some others." The Academy specialty board criteria have been approved by the US Department of Labor which, by letter dated December 18, 1984, recognized the Academy as a "bona fide medical specialty board" and indicated its diplomates could be accorded status equivalent to that of ABMS diplomates in their respective fields. Educational organizations have also recognized the Academy including the International College of Surgeons, United States Section. Nonetheless, it has not been recognized by the ABMS nor has any other recognition board sought approval from the FBM during the period between 1980 through April 1993. Since that time, four requests, including one from the American Academy of Neurologic and Orthopedic Surgeons, have been received by the FBM but they have been held in abeyance pending FBM rulemaking activity to develop appropriate criteria for approval. 10. Rule 61F-24.001(2)(f), F.A.C., formerly 21M-24.01, F.A.C., which is challenged in this matter, was adopted by the FBM in 1980 and amended the same year. In 1988 it was again amended to require ABMS recognition of specialty boards which certified individual physicians. At the time of adoption of the rule and of the amendment thereto, the FBM members recognized the organization and purpose of the ABMS and intended it to be the recognition agency for specialty certification as it relates to physician advertising. Dr. J. Lee Dockery has been Executive Vice-president of ABMS since July, 1991. Before that time he was in the private practice of medicine in Florida and a member of the Florida Board of Medicine. The ABMS is a nonprofit private organization not governmentally regulated, incorporated in Illinois. It is made up of 24 separately incorporated and financially independent specialty boards. There are approximately 126 other self-designated boards for the purposes of certification. The ABMS maintains no files on the standards of certification of these self-designated boards. According to Dr. Dockery, these self-designating boards are not accepted by the medical profession. The independent specialty boards within the ABMS framework develop the criteria for admission to the certifying examinations they administer. They also develop the examinations, determine the examinations' validity, score them, and report the passing scores to the individual physicians, along with certificates of qualification. The ABMS, on the other hand, is the agency which approves the establishment of a specialty or sub-specialty and the independent board for that specialty establishes the criteria and requirements for certification in that specialty. The ABMS does not prepare or grade specialty examinations nor does it review the results of the tests. It also does not establish the requirements for admission to specialty examinations. This is done by the individual certifying board. There are uniform standards among the 24 member boards which relate to the completion of required educational programs under which that specialty was approved for authorization purposes. These standards may vary in terms of length of years of training required but not as to the accreditation of that training. All member specialty boards require initial specialty training for sub-specialties in addition to the training for initial certification in the specialty. Once a physician is certified based on the requirements in place at the time, he does not lose that certification if the requirements for certification are subsequently increased. None of the fee paid by physicians to specialty boards is paid to the ABMS. The ABMS does not lobby, though it has, in some cases, given testimony before state medical boards concerning proposed legislation which, it feels, would inappropriately diminish the qualifications for certification, in order to insure the health of the public is protected. There is an organization for osteopathic physicians similar to the ABMS. It is called the American Osteopathic Association. The American Academy of Neurological and Orthopedic Surgeons is not and never has been recognized by ABMS, nor has the American Federation for Medical Accreditation. Using the term "diplomate" of an organization not affiliated with the ABMS is not improper since that term signifies only the passage of an examination and not certification of expertise. Also, placement of a credential in a cirriculum vitae is different from placing it in a letterhead. The issue is how the placement is to be used. Whereas the former has limited application, the latter may be widely disseminated.
The Issue The issues for disposition in this case are whether: (1) proposed rules 65G-4.0213 through 65G-4.0218 of the Florida Administrative Code (“the Proposed Rules”) constitute an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes (2015)1/; and whether (2) the Agency for Persons with Disabilities (“APD”) failed to follow applicable rulemaking procedures in seeking to adopt the Proposed Rules.
Findings Of Fact The Parties Petitioners face profound mental and physical challenges, and they receive services through the Home and Community-Based Services Medicaid Waiver Program for individuals with developmental disabilities (“the Waiver”). APD’s mission is to help people with developmental disabilities live and receive services in their communities. § 393.066(1), Fla. Stat. The Waiver Medicaid is the primary funding source for services to income-qualified, developmentally disabled individuals. See Russell v. Ag. for Pers. With Disab., 929 So. 2d 601, 602 (Fla. 1st DCA 2006). See also § 393.063(9), Fla. Stat. (defining “developmental disability” to mean “a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.”). States participating in Medicaid must comply with federal requirements governing the program, but the Medicaid Act allows states to obtain waivers from those requirements. Russell, 929 So. 2d at 603. Florida provides services to APD’s clients2/ through the Waiver, and APD administers the Waiver. APD’s goal is to enable its clients to live productive lives in their communities rather than in costly institutions. See § 393.066(1), Fla. Stat. (mandating that APD “shall plan, develop, organize, and implement its programs of services and treatment for persons with developmental disabilities to allow clients to live as independently as possible in their own homes or communities and to achieve productive lives as close to normal as possible.”). Even though the services provided to APD’s clients are funded through the Waiver, those services must still comply with certain federal requirements. For example, all Waiver services must be medically necessary. Also, Waiver funding is funding of last resort. Therefore, a Waiver recipient must exhaust all other available resources from his or her state, local community, and family prior to receiving waiver funds. See § 393.0662(4), Fla. Stat. (mandating that “[a] client must use all available services authorized under the state Medicaid plan, school-based services, private insurance and other benefits, and any other resources that may be available to the client before using funds from his or her iBudget to pay for support and services.”). APD currently serves approximately 30,600 clients through the Waiver. Due to budgetary constraints, approximately 21,000 people are on a “wait list” for receiving Waiver services. The iBudget Statute In 2007, the Florida Legislature directed APD to develop and implement a comprehensive redesign of the waiver system. Moreland v. Ag. for Pers. with Disab., 19 So. 3d 1009, 1010 (Fla. 1st DCA 2009). This new system, referred to as the “Tier System,” placed each client into one of four different “tiers” based on that client’s need for services and the cost of providing those services. See § 393.0661(3), Fla. Stat. See also Moreland, 19 So. 3d at 1011 (noting that “[t]iers two, three, and four each have a different annual monetary cap; thus, the level of services available for each individual is contingent upon the tier into which the individual is placed.”). APD responded by promulgating proposed rules to implement the Tier System. However, the First District Court of Appeal invalidated them. Moreland, 19 So. 3d 1009. In 2010, the Florida Legislature shifted to the iBudget System. As discussed in the preamble to section 393.0662, Florida Statutes, the iBudget System was intended to assist APD with its budgeting so that the agency could avoid the budget shortfalls that had plagued the Tier System. The Legislature also intended to provide APD’s clients with greater flexibility in choosing the services that would enable them to remain in their local communities: The Legislature finds that improved financial management of the existing home and community-based Medicaid waiver program is necessary to avoid deficits that impede the provision of services to individuals who are on the waiting list for enrollment in the program. The Legislature further finds that clients and their families should have greater flexibility to choose the services that best allow them to live in their community within the limits of an established budget. Therefore, the Legislature intends that [APD], in consultation with the Agency for Health Care Administration, develop and implement a comprehensive redesign of the service delivery system using individual budgets as the basis for allocating the funds appropriated for the [Waiver] among eligible enrolled clients. The service delivery system that uses individual budgets shall be called the iBudget system. § 393.0662, Fla Stat. The increased flexibility that clients have under the iBudget system enables them to obtain necessary services without getting prior approval from APD. The Legislature also expressed a commitment to keeping clients in their local communities rather than in costly institutions: The Legislature finds and declares that existing state programs for the treatment of individuals with developmental disabilities, which often unnecessarily place clients in institutions, are unreasonably costly, are ineffective in bringing the individual client to his or her maximum potential, and are in fact debilitating to many clients. A redirection in state treatment programs for individuals with developmental disabilities is necessary if any significant amelioration of the problems faced by such individuals is ever to take place . . . . Further, the greatest priority shall be given to the development and implementation of community- based services that will enable individuals with developmental disabilities to achieve their greatest potential for independent and productive living, enable them to live in their own homes or in residences located in their own communities, and permit them to be diverted or removed from unnecessary institutional placements. § 393.0662, Fla. Stat. In order to accomplish the goals described above, section 393.0662(1), provides that “[t]he agency shall establish an individual budget, referred to as an iBudget, for each [client]. The funds appropriated to the agency shall be allocated through the iBudget system to eligible, Medicaid- enrolled clients.” Also, APD must utilize an algorithm in establishing each client’s iBudget: In developing each client’s iBudget, the agency shall use an allocation algorithm and methodology. The algorithm shall use variables that have been determined by the agency to have a statistically validated relationship to the client’s level of need for services provided through the [Waiver]. The algorithm and methodology may consider individual characteristics, including, but not limited to, a client’s age and living situation, information from a formal assessment instrument that the agency determines is valid and reliable, and information from other assessment processes. §393.0662(1)(a), Fla. Stat. The algorithm referred to in section 393.0662(1)(a) (“the Allocation Algorithm”), is a multiple linear regression model. In very simple terms, a multiple linear regression model is an equation with independent variables and a constant on one side and a dependent variable on the other. A very simple regression model would follow this format: dependent variable = constant + coefficient1(independent variable1) + coefficient2(independent variable2) + coefficient3(independent variable3) The amount of the dependent variable is correlated to some degree with each of the independent variables, and the coefficients next to each independent variable quantify the correlation between the dependent variable and that particular independent variable. Therefore, if one has amounts for each of the independent variables, then the expected amount for the dependent variable can be calculated by: (a) plugging the amounts for the independent variables into the regression equation; (b) multiplying the independent variables by their coefficients; and (c) adding those results to the constant. The Legislature intends for the Allocation Algorithm to establish each client’s iBudget. However, the Legislature has recognized that there may be instances in which a particular client’s needs will not be met through the iBudget amount or other resources. These instances are referred to as “significant additional needs” (“SANs”)3/, and they will lead to an increase to a client’s iBudget. The first SAN is characterized in section 393.0662, as “[a]n extraordinary need that would place the health and safety of the client, the client’s caregiver, or the public in immediate, serious jeopardy unless the increase is approved.” This first SAN category is very broad and encompasses situations such as: (1) a documented history of life-threatening behaviors; (2) a complex medical condition that requires intervention by a licensed nurse; (3) a chronic comorbid condition; and (4) a need for total physical assistance with the activities of daily living. See § 393.0662, Fla. Stat. The second SAN category encompasses “[a] significant need for one-time or temporary support or services that, if not provided, would place the health and safety of the client, the client’s caregiver, or the public in serious jeopardy ” A significant need for one-time services could include needs such as modifications to a home or services to address the temporary loss of a caregiver. Id. The third SAN category accounts for a significant increase in the need for services after the beginning of the plan year due to substantial changes in a client’s circumstances. This could encompass situations such as the permanent or long-term loss of a caregiver or a significant change in medical or functional status that requires the provision of additional services. Id. Section 393.0662, contains other important provisions. For instance, section 393.0662(1)(b), requires that APD “shall reserve portions of the appropriation for [the Waiver] for adjustments required pursuant to this paragraph and may use the services of an independent actuary in determining the amount of the portions to be reserved.” Also, section 393.0662(1)(c), mandates that “[a] client’s iBudget shall be the total of the amount determined by the algorithm and any additional funding provided pursuant to paragraph (b) [i.e. SANs]. A client’s annual expenditures for [Waiver] services may not exceed the limits of his or her iBudget.” The Florida Legislature gave APD the authority to adopt rules governing the implementation of the iBudget system: [APD] and the Agency for Health Care Administration may adopt rules specifying the allocation algorithm and methodology; criteria and processes for clients to access reserved funds for extraordinary needs, temporarily or permanently changed needs, and one-time needs; and processes and requirements for selection and review of services, development of support and cost plans, and management of the iBudget system as needed to administer this section. § 393.0662(9), Fla. Stat. APD’s First Attempt to Adopt iBudget Rules APD utilized its rulemaking authority by promulgating Proposed Rules 65G-4.0210 through 65G-4.027 (“the First Proposed Rules”) in 2012. The Petitioners in the instant case filed a petition alleging that the First Proposed Rules were an invalid exercise of delegated legislative authority. An Administrative Law Judge rejected their challenge, but the First District Court of Appeal held that the First Proposed Rules violated section 120.52(8)(c), by enlarging, modifying, or contravening section 393.0662: Here, the Legislature was clear: the algorithm is the sole mechanism to set a client's iBudget, save for three exceptions specifically delineated by statute. § 393.0662(1)(c), Fla. Stat. In contravention of this clear requirement, the Proposed Rules use the algorithm, instead, as merely a starting point. The algorithm amount is then put through various modification mechanisms—none of which are contemplated by the clear statutory mandate that the "iBudget shall be the total of the amount determined by the algorithm and any additional funding provided pursuant to paragraph (b)." Id. Further, the use of the review mechanisms to decrease the algorithm amount contravenes the iBudget Statute. Nowhere in the statutory language does the Legislature contemplate decreasing the algorithm amount. The Legislature directed the algorithm be the floor and then permitted increases to that algorithm amount based on three delineated circumstances. G.B. et al. v. Ag. for Pers. with Disab., 143 So. 3d 454, 457- 58 (Fla. 1st DCA 2014). Even though the First Proposed Rules were invalidated, APD transitioned its clients to the iBudget System on July 1, 2013, when the federal waiver for the Tier System expired. This was possible because APD enacted an emergency rule and the Legislature allowed APD to continue using the First Proposed Rules until a new set of rules was adopted. In order to comply with the G.B. ruling, APD increased the iBudgets for approximately 14,000 clients so that their iBudgets were at least the algorithm amount. Development of the Proposed Rules After the G.B. decision, APD published a notice of development of rulemaking on October 23, 2014. Over the next several months, APD held multiple public hearings and noticed multiple changes to the Proposed Rules based on public comment. APD staff analyzed whether a statement of estimated regulatory costs (“SERC”) was required by completing a standardized checklist form entitled “Proposed Rule: Is a SERC Required.” See § 120.541(1)(b), Fla. Stat. (mandating that “[i]f a proposed rule will have an adverse impact on small business or if the proposed rule is likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule, the agency shall prepare a statement of estimated regulatory costs as required by s. 120.54(3)(b).”); § 120.541(3), Fla. Stat. (mandating that “[i]f the adverse impact or regulatory costs of the rule exceed any of the criteria established in paragraph (2)(a), the rule shall be submitted” for legislative ratification). Denise Arnold, APD’s Deputy Director, testified at the final hearing that APD’s SERC analysis included an examination of rules that had already been adopted, an evaluation of public comments, and an analysis of whether the Proposed Rules would raise costs for those private entities providing services to APD’s clients. Using the SERC checklist, APD concluded that the direct and indirect regulatory costs associated with implementing the Proposed Rules would be “zero;” that “zero” entities would be impacted; and that there would be no adverse economic or noneconomic impact from the implementation of the Proposed Rules. During the final hearing, there was no persuasive evidence that regulatory costs incurred by those providing services to APD’s clients would be increased if the Proposed Rules were to be adopted. For example, no Waiver providers testified at the final hearing. In contrast, the greater weight of the evidence demonstrated that the Proposed Rules would not materially increase the costs of providing services to APD’s clients. Under both the current iBudget system and the Tier System, Waiver providers have substantially the same responsibilities and workloads. While the Proposed Rules may require Waiver providers to complete new forms, the evidence demonstrated that those new forms will simply replace ones Waiver providers are currently using. Accordingly, APD’s Director signed the SERC checklist on December 3, 2014, and thus certified that no SERC was required. APD published a version of the Proposed Rules on December 5, 2014. That notice stated that a SERC and legislative ratification were not required. However, the notice did not include a description of the information utilized by APD to make that determination. Accordingly, the Joint Administrative Procedures Committee (“JAPC”) addressed a letter to APD on May 13, 2015, advising APD that the legislative ratification statement was missing from the notice of proposed rulemaking. The letter continued by stating that because “a SERC was not prepared for the rules, please publish a notice of correction describing the information expressly relied upon by [APD] in determining whether the rules are expected to require legislative ratification.” APD responded by publishing a notice of correction on May 28, 2015 stating: The Notice of Proposed Rule did not state what information was relied upon in determining that the proposed rule is not expected to require legislative ratification. The information expressly relied upon is the analysis conducted by [APD] to determine whether a SERC was required and the nature of the rule. This information sufficiently described the information utilized by APD in its SERC analysis. However, even if that were not the case, there is no basis for inferring that any deficiency in the notice of correction impaired the Petitioners’ substantial interests or the fairness of the proceeding. Also, there was no evidence or testimony presented at the final hearing to suggest otherwise. The Proposed Rules A few key components of the Proposed Rules warrant discussion. For example, the completion of a Questionnaire for Situational Information (“QSI”) is the first step in establishing a client’s iBudget. Proposed Rule 65G-4.0213(18) defines a QSI as “[a]n assessment instrument used by [APD] to determine an individual’s needs in the areas of functional, behavioral, and physical status,” and Proposed Rule 65G- 4.0213(18) incorporates the QSI by reference. The QSI is a series of questions designed to gather information about a client’s functional ability (i.e., the client’s need for assistance with eating, bathing, walking, etc.), behavioral issues (i.e., aggression, elopement, self- injury, etc.), and physical issues (i.e., medical issues that require assistance). The answers each client provides to the QSI enable APD to identify that client’s level of need and the types of supports he or she requires. The University of South Florida verified that the questions set forth in the QSI elicit answers that enable APD to reliably evaluate each client’s level of need for services. Proposed Rule 65G-4.0213(18) identifies the QSI as a “valid and reliable assessment instrument.” Ms. Arnold testified that a QSI is to be completed for every client at least once every three years. However, Proposed Rule 65G-4.0214(1)(d) provides that a client may request that another QSI be completed if there has been a significant change in circumstances that could affect a client’s iBudget amount. The data gathered from a client’s QSI plays a substantial role in calculating that client’s iBudget. As discussed in more detail in a subsequent section, the answers from several of the QSI questions serve as inputs into the Allocation Algorithm. Proposed Rule 65G-4.0216(3) provides that after calculation of a client’s Allocation Algorithm amount, the client’s Waiver Support Coordinator meets with the client, the client’s representative, and/or the client’s advocate in order to evaluate whether the client has any SANs.4/ Proposed Rule 65G-4.0218(1) sets forth SAN categories that essentially mirror the three listed in section 393.0662. However, Proposed Rule 65G-4.0218(1) provides for an additional or fourth SAN category involving transportation services to a waiver-funded adult day training program or to a waiver-funded supported employment. This applies when the client’s need cannot be met through his or her iBudget amount without compromising the client’s health and safety and there are no other viable means of transportation. If the Waiver Support Coordinator in conjunction with the client, the client’s representative, and/or the client’s advocate determines that the client has a SAN, then Proposed Rule 65G-4.0216(3) provides that the Waiver Support Coordinator will complete an Amount Implementation Meeting (“AIM”) Worksheet and submit it to APD within 30 days of receiving a new algorithm amount. If no additional documentation is needed, then APD will have 30 days from receipt of the AIM Worksheet to issue a decision on the client’s iBudget amount. Proposed Rule 65G-4.0216(3) mandates that APD “shall approve an increase to the iBudget amount if additional funding is required to meet [SANs] subject to the provisions of the iBudget rules.” In contrast, if the Waiver Support Coordinator in conjunction with the client, the client’s representative, and/or the client’s advocate determines that the algorithm amount is sufficient to pay for all the services and supports the client will need, then the individual review is complete and no further action is necessary. The client or someone acting on the client’s behalf signs the AIM form and notifies APD that there are no SANs. Once a client’s iBudget amount is established, Proposed Rule 65G-4.0217(1) requires the client’s Waiver Support Coordinator to submit a cost plan proposal to APD reflecting the specific waiver services and supports that the client will utilize and the providers of those services and supports. APD then reviews the cost plan to ensure that it conforms with the iBudget rules and the rules governing Waiver services in general. The Allocation Algorithm Section 393.0662(1)(a) directs APD to use an algorithm with variables that have been determined by APD to have a statistically validated relationship to the client’s level of need for services provided through the Waiver. In 2009 to 2010, APD contracted with Dr. Xu-Feng Niu, the chair of the statistics department at Florida State University, to develop and recommend options for an algorithm for the First Proposed Rules. Dr. Niu has performed statistical work for other Florida state agencies, including developing models and algorithms for the Department of Environmental Protection and the Department of Transportation. Dr. Niu has an extremely long and distinguished career as a statistician. He earned his Ph.D. in statistics from the University of Chicago in 1991. After being hired by Florida State University to teach statistics in 1991, Dr. Niu became the Chair of the University’s statistics department in 2011 and still holds that position. Dr. Niu created the allocation algorithm that was incorporated into the First Proposed Rules. That allocation algorithm’s validity was at issue during the previous rule challenge, and the ALJ who considered that challenge found that Dr. Niu’s allocation algorithm was valid. G.B., Z.L. through His Guardian K.L., J.H., and M.R. v. Ag. for Persons with Disab., Case No. 13-1849 (Fla. DOAH Sept. 9, 2013). In the subsequent appellate decision that invalidated the First Proposed Rules, G.B., et. al v. Ag. for Persons with Disab., supra, the First District Court of Appeal in G.B. did not address the allocation algorithm’s validity. In 2014, APD contracted with Dr. Niu to update the Allocation Algorithm for the Proposed Rules. Dr. Niu developed the Allocation Algorithm in the Proposed Rules by using a linear regression statistical method. As explained above, a multiple linear regression model utilizes independent variables (predictors) to arrive at a response (dependent variable). The independent variables in the Allocation Algorithm include a client’s age, living setting, and certain individual characteristics and support needs specified in the QSI. To provide a baseline to begin constructing the allocation algorithm, Dr. Niu used the clients’ fiscal year 2013-14 waiver expenditures (also referred to as claims data) as the dependent variable. Use of that fiscal year was significant because that was the first year that the Tier system was no longer in place, and the iBudget statute had been in effect for a full year. According to APD, every client’s needs had been met during the 2013-14 fiscal year. In practice, the dependent variable will be unknown because the dependent variable is that particular client’s future expected need, and that is what the Allocation Algorithm is designed to calculate. Dr. Niu’s analysis did not include 2013-14 claims data for a significant number of APD’s clients. For instance, APD served approximately 30,600 clients during that fiscal year, but Dr. Niu justifiably did not rely on claims data for any clients who had not been on the Waiver for at least one year. Also, Dr. Niu excluded the claims date from approximately 2,410 clients who were deemed to be “outliers.” In this context, “outliers” were deemed to be clients whose total claims during the 2013-14 fiscal year were extremely high or extremely low. This exclusion was done partially because including such outliers in a regression model sometimes reduces the model’s predictive ability. In making the decision to exclude approximately 10 percent of the clients who had been receiving Waiver services for a full year or more as outliers, rather than five percent as suggested by Petitioners, Dr. Niu considered input from APD’s stakeholders. As discussed above, APD conducted several public meetings regarding the formulation of the Proposed Rules, and all stakeholders (i.e., interested parties such as parents or guardians of clients, service providers, and staff from the Agency for Healthcare Administration) had ample opportunity to provide input to APD. Dr. Niu presented the stakeholders with a choice of designating either five percent or 10 percent of clients as outliers and excluding their claims data from the Allocation Algorithm’s formulation. The stakeholders ultimately recommended that 10 percent be designated as outliers, and Dr. Niu agreed with their recommendation. According to Dr. Niu, designating either five percent or 10 percent of the clients as outliers would have been appropriate. However, designating 10 percent of the clients as outliers was more appropriate in this instance, and resulted in a better model, because the iBudget system had only been in place for one year. The 10 percent exclusion was also deemed appropriate because there was a great deal of variation in the claims data. Because the claims data was in dollars, Dr. Niu needed to transform the data in order to create a bell curve. He accomplished that by performing a square root transformation on the data. While Dr. Niu could have used a logarithmic transformation, he determined that the square root transformation made the data more bell-shaped. Though either transformation could have been used, the preponderance of the evidence indicated that the square root transformation was a reasonable and appropriate means for developing the bell curve. After transforming the claims data from the 2013- 14 fiscal year, Dr. Niu had a baseline or a dependent variable for the Allocation Algorithm, but he still needed independent variables. In order to satisfy section 393.0662’s requirement that any allocation algorithm utilized by APD use independent variables that “have a statistically validated relationship to the client’s level of need for services provided through [the Waiver],” Dr. Niu turned to the QSI. As noted above, the QSI questions have already been validated as having a statistically valid relationship to a client’s level of need. However, Dr. Niu still had to determine what data from the QSI to use as independent variables in the algorithm. While Dr. Niu could have constructed an algorithm that utilized every piece of data from a client’s QSI, such a model would have been overly complex. Accordingly, Dr. Niu tested over 100 different regression models, each with different combinations of QSI data points as independent variables. After considering several different regression models, Dr. Niu ultimately determined that a regression model he designated as “5B” was the best one at predicting a client’s expected future need for services. That model’s independent variables include the client’s age, living setting status, and certain individual characteristics and support needs specified in the individual’s QSI. That QSI information included questions (among others) pertaining to a client’s ability to eat, dress, and protect himself or herself. Other questions assessed whether a client engages in inappropriate sexual behavior or experiences episodes of aggression. Dr. Niu determined that Model 5B was the best one by performing a bootstrapping analysis. Bootstrapping is a statistical method used for testing regression models. The method involves running a model with the original data while randomly repeating some claims and randomly dropping others. Dr. Niu performed this test approximately 10,000 times in order to test the reliability of Model 5B. Dr. Niu’s conclusion about Model 5B was also influenced by its R-squared value. The R-squared value quantifies how much of the variation from the average claim is explained by a particular model, and the R-squared value is a number between zero and one. If a particular model’s R-squared value is 1, then that model explains 100 percent of the deviation from the average claim. Model 5B had an R-squared value of .80. Therefore, that model explained 80 percent of the deviation. Dr. James McClave5/, Petitioner’s expert statistician, testified during the final hearing that the Allocation Algorithm’s margin of error was 90 percent when used to calculate actual claims totals by APD’s clients in 2013-14. In response, Dr. Niu testified that Dr. McClave was testing for the wrong thing. According to Dr. Niu, evaluating the Allocation Algorithm by its ability to predict past claims for the 2013-14 fiscal year was not a valid test of what the Allocation Algorithm was designed to accomplish. Specifically, Dr. Niu testified that the Allocation Algorithm is not attempting to predict past expenditures. Instead, it is trying to predict or calculate a claimant’s future expected need. A client’s future expected need is driven by that particular client’s individual characteristics and circumstances (i.e., the independent variables in the Allocation Algorithm). That same client’s future expected need can differ from his or her actual future need due to unexpected circumstances such as a drastic change in the client’s condition or the death of a caregiver. The evidence and testimony presented at the final hearing indicated that it would be extremely difficult to construct an algorithm that could account for such unexpected circumstances and thus be effective in calculating or predicting that client’s actual future need. Accordingly, the Allocation Algorithm is intended to calculate or predict a client’s future expected need based on the information that is known about that client. Dr. Niu’s testimony was credible and is accepted. To that point, Ms. Arnold persuasively explained why an individual client’s expenditures may unexpectedly change from one year to another. Ms. Arnold is the Deputy Director of Programs for APD and has been involved in implementing the iBudget System since its inception. She has worked for APD for over 30 years, and she was a service provider prior to her service at APD. Ms. Arnold has been working on the iBudget implementation and development for ten years, spending about 75 percent of her time on it. Ms. Arnold has spent numerous hours in meetings regarding the Proposed Rules and has spent many hours in meetings with Dr. Niu discussing the Allocation Algorithm. Thus, Ms. Arnold understands the Proposed Rules, what the Allocation Algorithm is supposed to do, and what the QSI does. As Ms. Arnold testified, the Allocation Algorithm is based on characteristics that identify a client’s future expected need. Therefore, clients with the same characteristics will receive the same Allocation Algorithm amount. However, this statistical process, which predicts need based on individual characteristics, does not account for all of the social variables that can create totally different situations for one client as opposed to another. For example, Ms. Arnold testified that you could have two individuals with similar characteristics; however, one client lives with a single mother and the other lives with a brother and sister who provide a great deal of support. As a result, the client with a single parent who works may need support during the day (such as a day program), while the client with sibling support may not have that same need. Ms. Arnold also testified that clients’ lives can change rapidly, and an algorithm relying on immature data cannot capture all of those changes. In addition, there are other reasons why a client’s future expected need may differ from his or her future actual need. Clients living in rural communities may receive services less often, a caregiver’s condition could change, an individual could go on vacation, or an individual may go into a hospital for an extended period. Also, Waiver funding is funding of last resort. § 393.0662(4), Fla. Stat. Therefore, a client’s need for Waiver funds may be accurately predicted by the Allocation Algorithm, but that client may not end up using all of the Waiver funds because his or her need is being met through other resources. As mentioned above, section 393.0662(1)(b), requires that the Allocation Algorithm “use variables that have been determined by [APD] to have a statistically validated relationship to the client’s level of need” for Waiver services. APD proved by a preponderance of the evidence that the Allocation Algorithm satisfies that requirement. During the final hearing, Petitioners attempted to undermine the Allocation Algorithm developed by Dr. Niu by noting that it was ineffective in “predicting” the Waiver claims made by APD’s clients during the 2013-14 fiscal year. This was evidenced by the 90 percent margin of error discussed above. Petitioners argued that if the Allocation Algorithm does a poor job of predicting claims made during the 2013- 14 fiscal year, then the Allocation Algorithm is not satisfying section 393.0662(1)(b)’s requirement to use variables having a statistically validated relationship to the client’s level of need. However, APD’s witnesses persuasively testified that the test put forth by Petitioners was not the appropriate way to ascertain whether the Allocation Algorithm uses variables having a statistically validated relationship to the client’s level of need. As discussed above, APD is not attempting to use the Allocation Algorithm to predict or calculate a client’s actual future need. Instead, APD is attempting to use the Allocation Algorithm to predict or calculate a client’s future expected need based on certain facts known about that client. Unexpected events may cause that client’s actual future need to substantially differ from that client’s future expected need. Moreover, Petitioners presented no other evidence that the information utilized in the Allocation Algorithm (such as the QSI information) did not have a statistically validated relationship to the client’s level of need. However, a cursory examination of the independent variables utilized in the Allocation Algorithm indicates they would have a substantial influence on a client’s level of need. Dr. Niu simply determined that a particular combination of variables had the strongest correlation to a client’s future expected need. As noted above, APD transitioned its clients to the iBudget System on July 1, 2013, and has been utilizing the First Proposed Rules. The finding that the Allocation Algorithm uses independent variables having a statistically validated relationship to the client’s level of need is corroborated by the fact that the iBudget System has been successful during the short amount of time that it has been implemented. The First Proposed Rules also had an Allocation Algorithm, and its R-squared value was .67 while the R-squared for the Allocation Algorithm at issue in this case is .80. Nevertheless, Ms. Arnold testified that only about 2,500 clients had to utilize the SANs process in a recent year. Also, Ms. Susan Chen, a statistician employed by APD, testified that APD’s clients generally spent only about 80 percent of their iBudgets during the 2013-14 fiscal year. If the iBudget system was not working, then the clients’ needs would have exceeded their iBudget allocation. Ms. Chen also testified that three of the Petitioners did not spend all of the money they had received via the Allocation Algorithm currently in effect. Specifically, two of the Petitioners spent only 80 percent of their allocations, and a third spent approximately 90 percent of what he or she was allocated. Finally, APD had budget surpluses during the 2013- 14 and 2014-15 fiscal years. This is additional evidence that the needs of those clients receiving Waiver services are being met. It is also evidence that the Allocation Algorithm (with a higher R-squared value than the one currently being utilized) has a statistically validated relationship to the client’s level of need. In sum, the evidence and testimony presented by APD was more persuasive than the evidence and testimony presented by Petitioners. Petitioners raised several other issues that will be addressed below.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: L. The Agency issued the Petitioner a letter denying his application for exemption from disqualification from employment. (Exhibit A). 2. The Petitioner requested a formal administrative hearing, and his petition was sent to the Division of Administrative Hearings (DOAH). 3. The Petitioner subsequently filed a Notice of Voluntary Dismissal with DOAH (Exhibit B), and DOAH closed its file and relinquished jurisdiction to the Agency (Exhibit C). 4. The denial of the Petitioner’s application for exemption from disqualification from employment is UPHELD. 5. This Final Order is entered without prejudice to Petitioner reapplying for an exemption from disqualification from employment in the future. ORDERED in Tallahassee, Florida, on this Ce day of Aa neiasig — 2015. Elizabeth DwNek, Secretary Agency for Health Care Administration Filed January 12, 2015 3:13 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy. is Final Order was served on the below- named persons/entities by the method designated on this ay of aS OR , 2015. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Lindsay Granger, Assistant General Counsel Facilities Intake Unit Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Taylor Haddock, Supervisor Theodore E. Mack, Esquire Background Screening Unit Powell and Mack Agency for Health Care Administration 3700 Bellwood Dr. (Electronic Mail) Tallahassee, FL 32303 (U.S. Mail) Mary Li Creasy Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (“the Agency") on the requests for partial exemptions for emergency service filed on January 22, 2010, by BARTOW HMA, INC. d/b/a BARTOW REGIONAL MEDICAL CENTER (“Bartow Regional”) seeking partial exemptions from providing the emergency services related to: gastroenterology, urology, otolaryngology, vascular surgery and neurology, as continuous emergency services. On March 12, 2010, the Agency denied these requests for partial exemptions. (Composite Exhibit 1) On April 2, 2010, Bartow Regional timely filed a Petition for Formal Administrative Hearing challenging the denials of the partial exemption requests, which was forwarded to the Division of Administrative Hearings (““DOAH”). On December 1, 2010, Bartow Regional filed its Notice of Voluntary Dismissal in DOAH withdrawing its Petition for Formal Administrative Hearing. On December 2, 2010, the Page 1 of 3 Filed January 27, 2011 9:28 AM Division of Administrative Hearings Administrative Law Judge issued an Order Closing Files, thereby closing the cases. It is ORDERED AND ADJUDGED: 1. The Agency’s actions in denying the requested exemptions are upheld. DONE and ORDERED this “25 day of Facey — , 2011, in Tallahassee, Florida. Agency for Health Care Administration
The Issue The issues to be presented for determination are whether the statements alleged in the Petition and the Amended Petition are agency statements of the Board meeting the definition of a rule in section 120.52, Florida Statutes, and, if so, whether they have been adopted as rules through the rulemaking process outlined in section 120.54.
Findings Of Fact Petitioner is a physical therapist licensed in the State of Florida. Respondent is the Florida Board of Physical Therapy Practice, which is established within the Division of Medical Quality Assurance of the Department of Health. See § 20.43(2)(g)26., Fla. Stat. The duties generally assigned to health care boards and the duties assigned to the Department are contained in chapter 456, Florida Statutes, while those assigned to this Board specifically are contained in chapter 486, Florida Statutes. Petitioner is the subject of an Administrative Complaint filed by the Department. The Administrative Complaint is docketed at the Division of Administrative Hearings (DOAH) as Case No. 20-5348PL. Petitioner alleges that certain statements made by PRN in a monitoring contract are unadopted rules of the Board and the Department. Those alleged unadopted rules are as follows: Adopting a policy through the Department’s consultant Professional Resource Network (PRN) under Section 456.076, Florida Statutes, to require licensees with a previously diagnosed illness to incur substantial costs to be monitored for five years by PRN without following proper rulemaking authority. Adopting a policy through the Department’s consultant PRN under section 456.076, Florida Statutes, to require licensees with a previously diagnosed illness to incur substantial costs and seek an “Appropriateness to Exit Evaluation” from a non-treating professional after treatment completion without following proper rulemaking authority. Adopting a policy through the Department’s consultant PRN under Section 456.076, Florida Statutes, to require licensees with a previously diagnosed illness to incur substantial costs and Peth [drug] test for five years without following proper rulemaking authority. In August of 2014, Petitioner removed herself from practice, and in January 2015, entered the impaired practitioner’s program. In April 2015, Petitioner signed an agreement to have her aftercare monitored by PRN. A copy of the monitoring agreement has not been provided in this case. In March 2018, PRN filed a complaint regarding Petitioner with the Department. On or about June 17, 2020, the Department filed Administrative Complaint Case No. 2018-07401. The Administrative Complaint is the basis for the proceeding in Department of Health v. Brooks, DOAH Case No. 20- 5348PL. The factual allegations in the Administrative Complaint include the following: On or about April 6, 2015, Respondent entered into a Five-Year Monitoring Contract (Contract) with Professionals Resource Network (PRN), requiring Respondent to be regularly PEth tested. During the term of the Contract, Respondent expressed to PRN that she was financially unable to continue the required testing. Respondent requested an early termination of the Contract from PRN. PRN required Respondent to undergo an Appropriateness to Exit Evaluation (Evaluation) if she desired to terminate the Contract. Respondent ceased performing the required testing and did not submit to an Evaluation. On or about March 20, 2018, PRN terminated the Contract with Respondent for failure to comply with the terms of the Contract without good cause. Based on these and other allegations not relevant to this proceeding, Petitioner is charged in the Administrative Complaint with failing to report to the Board a guilty plea to driving under the influence within 30 days, in violation of section 456.072(1)(x), and being terminated from an impaired practitioner program without good cause, in violation of section 456.072(1)(hh). Section 456.076 identifies the responsibilities of the Department with respect to establishment of an impaired practitioner program. Pursuant to the terms of section 456.076, the Department has contracted with PRN to serve as a “consultant.” Section 456.076(1)(a) defines a consult as “an entity who operates an approved impaired practitioner program pursuant to a contract with the [D]epartment.” The impaired practitioner program is a program “established by the [D]epartment by contract with one or more consultants to serve impaired and potentially impaired practitioners for the protection of the health, safety, and welfare of the public.” § 456.076(1)(d), Fla. Stat. Section 456.076(e) defines “impairment” as “a potentially impairing health condition that is the result of the misuse or abuse of alcohol, drugs, or both, or a mental or physical condition that could affect a practitioner’s ability to practice with skill and safety.” A participant in the program is “a practitioner who is participating in the impaired practitioner program by having entered into a participant contract. A practitioner ceases to be a participant when the participant contract is successfully completed or is terminated for any reason.” § 456.076(h), Fla. Stat. A participant contract is “a formal written document outlining the requirements established by a consultant for a participant to successfully complete the impaired practitioner program, including the participant’s monitoring plan.” § 456.076(1)(i), Fla. Stat. Section 456.076(2) provides that the Department may retain one or more consultants to operate its impaired practitioner program and outlines the qualifications that consultants must have. Subsection (3) provides that the terms and conditions for the impaired practitioner program must be established by contract between the Department and the consultant(s) and identifies the minimum requirements for the program. Those minimum requirements include arranging for evaluation and treatment of impaired practitioners when the consultant deems such evaluation and treatment is necessary; acceptance of referrals; and monitoring recovery progress and status of impaired practitioners to ensure that they are able to practice with skill and safety. It is expressly required in section 456.076(3)(c) that “[s]uch monitoring must continue until the consultant or department concludes that monitoring by the consultant is no longer required for the protection of the public or until the practitioner’s participation in the program is terminated for material noncompliance or inability to progress.” Consultants do not directly evaluate, treat, or otherwise provide patient care to participants in the program. § 456.076(3)(d), Fla. Stat. The participant contract that an impaired practitioner signs is a contract with the consultant and is not a contract with the Department or the Board. Section 456.076(5) provides: A consultant shall enter into a participant contract with an impaired practitioner and shall establish the terms of monitoring and shall include the terms in a participant contract. In establishing the terms of monitoring, the consultant may consider the recommendations of one or more approved evaluators, treatment programs, or treatment providers. A consultant may modify the terms of monitoring if the consultant concludes, through the course of monitoring, that extended, additional, or amended terms of monitoring are required for the protection of the health, safety, and welfare of the public. Generally, when a licensee has self-reported to an impaired practitioner program and remains in compliance with the terms of his or her contract, the matter remains between the licensee and the consultant. § 456.076(10), Fla. Stat. However, section 456.076(12)(a) provides that when a participant is terminated for “material noncompliance with a participant contract, inability to progress, or any other reason than completion of the program,” the consultant is required to disclose to the Department all information in its possession related to the practitioner, and the disclosure is considered a complaint within the meaning of section 456.073. Section 456.076, as currently enacted, contains no rulemaking authority for either the Department or the Board.1 Petitioner alleges that the statements contained in paragraph four are unadopted rules of the Department and the Board. The statements are requirements with which Petitioner had to comply under the terms of her PRN contract, or monitoring agreement. Petitioner’s Amended Petition does not expressly allege that either the Board or the Department approve or adopt the provisions contained in her PRN contract alleged to be unadopted rules. She states that both the Department and the Board are responsible for “receiving the text of non-rule statements” (Amended Petition, ¶ 2); are “beneficiaries of a contract between 1 Most of the rules associated with the impaired practitioner program have been repealed. See Fla. Admin. Code Rs 64B31-10.002, .003, and .004 (repealed Mar. 30, 2014). However, rule 64B31-10.001 was last amended on December 21, 2015, before the substantial rewrite of section 456.076 in 2017, when the specific rulemaking authority formerly contained in section 476.076(1) was removed. It appears that this rule, which Petitioner cites, is no longer authorized, but that is an issue for another day. the Department and PRN to operate an impaired practitioners’ program” (¶ 7); “by statute and rule use and refer to the services of the consultant who operates the impaired practitioners’ program” (¶ 8); and “benefit from the use of the PRN services for licensees involved in impairment situations.” (¶10). In her response to the Board’s Motion to Dismiss Amended Petition, she acknowledges that the Board is not responsible for the creation of section 456.076; for the contents of a participant contract; or for the contract between the Department and PRN. The crux of her complaint is that “this program is not a treatment program operated by the consultant’s doctors and nurses, [and] there is no rule or law requiring testing for 5 years, monitored treatment for 5 years and an evaluation from a non-treating professional when already under the care and treatment of a licensed treating professional.” (¶ 19). In short, she does not like how the PRN program is structured in general. Petitioner acknowledges that the PRN contract or monitoring agreement “was not the result of board involvement.” Through this proceeding, Petitioner seeks a final order declaring the challenged statements invalid; and an award of costs and interest, and such other orders as deemed necessary against the Department and its Board “for mandating license holders with a specific illness to be drug tested, monitored by its consultant for a stated period and require evaluations from a non- treating professional when already under the care of a licensed professional. This includes but is not limited to non-rule regulatory fees incurred for testing.” Petitioner also wants the Department and the Board to develop rules for the impaired practitioner program according to the intent of the Legislature. Petitioner is seeking relief that is beyond the parameters of an unadopted rule challenge. Given the current structure provided in section 456.076, the remedy she seeks is best provided by the Legislature.
