00-001622RP
Florida Association Of Nurse Anesthetists vs.
Department Of Health, Board Of Medicine
Status: Closed
DOAH Final Order on Tuesday, January 9, 2001.
DOAH Final Order on Tuesday, January 9, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8FLORIDA ACADEMY OF COSMETIC )
13SURGERY ( F.A.C.S.) INC.; )
18CHARLES GRAPER, M.D., D.D.S.; )
23and R. GREGORY SMITH, M.D., )
29)
30Petitioners, )
32)
33and )
35)
36FLORIDA ASSOCIATION OF NURSE )
41ANESTHETISTS, )
43)
44Intervenor, )
46)
47vs. ) Case No. 00- 0951RP
53)
54DEPARTMENT OF HEALTH, BOARD OF )
60MEDICINE, )
62)
63Respondent, )
65)
66and )
68)
69FLORIDA SOCIETY OF PLASTIC )
74SURGEONS, INC.; FLORIDA SOCIETY )
79OF DERMATOLOGY, INC.; FLORIDA )
84SOCIETY OF ANESTHESIOLOGISTS, )
88INC.; FLORIDA CHAPTER OF )
93AMERICAN COLLEGE OF SURGEONS, )
98INC.; FLORIDA HOSPITAL )
102ASSOCIATION, INC.; ASSOCIATION )
106OF COMMUNITY HOSPITALS AND )
111HEALTH SYSTEMS OF FLORIDA, )
116INC.; and FLORIDA NURSES )
121ASSOCIATION, )
123)
124Intervenors. )
126)
127FINAL ORDER
129This case, consolidated with DOAH Case No. 00- 1622RP, was
139heard by William R. Pfeiffer, the assigned Administrative Law
148Judge of the Division of Administrative Hearings, on July 25-27
158and August 7-8, 2000, in Tallahassee, Florida.
165APPEARANCES
166For Petitioners, Florida Academy of Cosmetic Surgery
173( F.A.C.S.), Inc; Charles Graper, M.D., D.D.S.,; and
181R. Gregory Smith, M.D.:
185Alfred W. Clark, Esquire
189117 South Gadsd en Street, Suite 201
196Post Office Box 623
200Tallahassee, Florida 32301-0623
203and
204Beverly L. Graper, Esquire
208832 Northwest 57th Street
212Gainesville, Florida 32605
215For Petitioners, Florida Association of Nurse Anesthetists:
222James W. Linn, Esquire
226Deborah D. Holton, Esquire
230David Ramba, Esquire
233Lewis, Longman & Walker, P.A.
238125 South Gadsden Street, Suite 300
244Tallahassee, Florid 32301
247For Respondent: M. Catherine Lannon, Esquire
253Ann Cocheu, Esquire
256Department of Legal Affairs
260Offic e of the Attorney General
266The Capitol, Plaza Level 01
271Tallahassee, Florida 32399-1050
274For Intervenor, Florida Society of Anesthesiologists:
280Jerome W. Hoffman, Esquire
284Karen D. W alker, Esquire
289Holland & Knight LLP
293Post Office Drawer 810
297Tallahassee, Florida 32302
300For Intervenors, Florida Society of Plastic Surgery, Inc.;
308Florida Society of Dermatology, Inc.; and Florida Chapter of
317American College of Surgeons, Inc.:
322Christopher L. Nuland, Esquire
326Law Offices of Christopher L. Nuland
3321000 Riverside Avenue, Suite 200
337Jacksonville, Florida 32204
340F or Intervenors, Florida Hospital Association, Inc.; and
348Association of Community Hospitals and Health Systems of
356Florida, Inc.:
358J. Stephen Menton, Esquire
362Rutledge, Ecenia, Purnell & Hoffman, P.A.
368Post Office Box 551
372Tallahassee, Florida 32392-0551
375For Intervenors, Florida Nurses Association:
380Cynthia A. Mikos, Esquire
384205 North Parsons Avenue, Suite A
390Br andon, Florida 33510-4515
394STATEMENT OF THE ISSUE
398The issue in this case is whether the challenged portions
408of the proposed amendments set forth in the Fourth Notice of
419Change for Rule 64B8-9.009, Florida Administrative Code (FAC),
427published in the Florida Administrative Weekly on February 18,
4362000, constitute an invalid exercise of delegated legislative
444authority.
445PRELIMINARY STATEMENT
447On February 25, 2000, Petitioners, Florida Academy of
455Cosmetic Surgery, Inc. (FACS), Charles Graper, M.D., D.D.S.,
463FACS (Graper), and R. Gregory Smith, M.D. (Smith) (collectively
472Petitioners) filed a Petition for Administrative Determination
479of the Invalidity of a Proposed Rule (Petition). The Petition
489was assigned DOAH Case No. 00-0951RP. Leave to intervene was
499granted to the Florida Society of Anesthesiologists, Inc. (FSA),
508the Florida Association of Nurse Anesthetists (FACA), the
516Florida Society of Plastic Surgeons, Inc. (FSPS), the Florida
525Society of Dermatology, Inc. (FSD), the Florida Hospital
533Association, Inc., and Association of Community Hospitals and
541Health Systems of Florida, Inc. (collectively Hospitals), the
549Florida Nurses Association (FNA) and the Florida Chapter of the
559American College of Surgery (ACS).
564On March 8, 2000, Petitioners FACS, Graper, and Smith filed
574an Amended Petition for Administrative Determination of the
582Invalidity of a Proposed Rule in DOAH Case No. 00-0951RP.
592On April 17, 2000, the FANA filed a Petition to Challenge
603Proposed Rule challenging the Fourth Notice of Change. It was
613assigned DOAH Case No. 00-1622RP and was consolidated with DOAH
623Case No. 00-0951RP on May 4, 2000.
630Contemporaneous with the filing of the challenge to the
639proposed Rule amendment at issue in this case, Petitioners FACS,
649Graper, and Smith also filed challenges to several aspects of
659the Board's existing Rules related to office-based surgery which
668are contained in Rule 64B8-9.009, Florida Administrative Code.
676The challenges to the provisions of the existing Rule were
686assigned DOAH Case No. 00-1058RX and a formal hearing was
696conducted in that case on June 14-16, and June 21, 2000, before
708the undersigned Administrative Law Judge. On September 7, 2000,
717a Final Order was entered in DOAH Case No. 00-1058RX (Final
728Order) which invalidated certain portions of the Board's
736existing Rule including the requirements for hospital staff
744privileges to perform Level III office surgeries and transfer
753agreements as a precondition to perform Level II office
762surgeries if the operating physician did not have hospital staff
772privileges. Among the proposed Rule changes included in the
781Fourth Notice of Change was a revision to the recently
791invalidated rule provision regarding staff privileges.
797The Amended Petition for an Administrative Determination of
805the Invalidity of a Proposed Rule filed in the present case
816(DOAH Case No. 00-0951RP) by Petitioners seeks a determination
825that the proposed changes to Rule 64B8-9.009 (6)(b)1.a. are an
835invalid exercise of delegated legislative authority.
841During the hearing in this matter, the parties stipulated
850that the entire record from the earlier proceeding shall be
860received into evidence. As documented in the rulemaking record,
869the clear intent of the Board was to amend the staff privileges
881requirement and provide additional alternatives for
887demonstrating sufficient training and competence to perform
894Level III office surgery. The argument raised in the earlier
904proceeding must be evaluated in light of the revisions proposed
914to the hospital staff privileges requirement by the Fourth
923Notice of Change. The results of that analysis are set forth in
935the Findings of Fact and Conclusions of Law below.
944A formal administrative hearing on the consolidated
951proposed rule challenge petitions was held on July 25-27 and
961August 7-8, 2000. At the hearing, Petitioners FACS, Graper, and
971Smith presented the testimony of Diana Calderone, M.D.;
979Douglas D. Dedo, M.D.; Anthony Rogers, M.D.; Peggy Bowen, CRNA;
989Charles Graper, D.D.S., M.D.; William N. Watson, M.D.; and
998R. Gregory Smith, M.D. Petitioner FANA presented the testimony
1007of Michael B. Pine, M.D.; Mitchell H. Tobin; Kriston J. Kent,
1018M.D.; Sandra Darlng, CRNA; Maria Garcia-Otero, CRNA, EdD.;
1026Robert Barnes, CRNA; and David Rogers, CRNA. The FNA presented
1036the testimony of Barbara Limpkin. The FSPS, FSD, and FCACS
1046presented the testimony of Michael Polakov; Christopher R.
1054Seymour; Mohammed R. Samiian, M.D.; Dean Livingston Johnston,
1062M.D.; Enrique J. Fernandez, M.D.; and Gary Rosenberg, M.D. The
1072FSA presented the testimony of Stephen Thomas Pyles, M.D.;
1081Joseph Franklin Cassady, Jr., M.D.; Rafael Miguel, M.D.;
1089Andrew Astrove, M.D.; Lee Bailey Massengill; Marilyn Morris;
1097Thomas Wescott Andrews, M.D.; David Craig Mackey, M.D.;
1105Luis Cajina, M.D.; Enrique Murciano, M.D.; and Alan Levine. The
1115Board presented the testimony of Liz Cloud, Georges El-Bahri,
1124M.D., and R. Gregory Smith, M.D. Petitioners' Exhibits numbered
11331, 4, 5, 6, 7, 8, 9, and 10 were received into evidence. FANA's
1147Exhibits numbered 1, 2, 3, 4, and 6 were received into evidence.
1159FSPS' Exhibits numbered 1, 2, 4, 5, 6, and 9 were received into
1172evidence.
1173The Transcript was filed on September 1, 2000. The parties
1183submitted Proposed Findings of Facts and Conclusions of Law
1192which have been considered by the Administrative Law Judge.
1201FINDINGS OF FACT
1204Background
12051. Rule 64B8-9.009, Florida Administrative Code, is the
1213Board's Rule governing the standards of care for office surgery.
1223The Rule was first adopted on February 1, 1994 as a Rule 61F6-
123627.009, Florida Administrative Code. It was transferred to Rule
124559R-0.009, Florida Administrative Code, and was amended on
1253May 17, 1994; September 8, 1994; and November 15, 1994, and then
1265was finally transferred to Rule 64B8-9.009, Florida
1272Administrative Code.
12742. In February of 1998, the Board directed its Surgical
1284Care Committee to evaluate Rule 64B8-9.009 and to make
1293recommendations for any modifications or amendments to the Rule.
1302The 1998 Florida Legislature also addressed the issue of office-
1312based surgery and provided that the Board may "establish by rule
1323standards of practice and standards of care for particular
1332practice settings . . . " including office-surgery environments.
1340As discussed below, hearings were conducted by the Board and its
1351Surgical Care Committee to consider changes to the office
1360surgery rule.
1362The Parties
1364R. Gregory Smith, M.D., Charles Graper, D.D.S., M.D.
1372and Florida Academy of Cosmetic Surgery
13783. Petitioner R. Gregory Smith, M.D., is a licensed
1387medical doctor practicing in Ponte Vedra Beach, Florida. Smith
1396practices cosmetic surgery, plastic surgery, and
1402oralmaxillofacial surgery in his office. Smith has a dental
1411degree from Ohio State University College of Dentistry, a
1420residency in oral and maxillofacial surgery and a degree in
1430medicine.
14314. Approximately 30 percent of FACS members use general
1440anesthesia (Level III) in their office surgery procedures. At
1449least one representative of FACS has attended each public
1458rulemaking hearing relating to proposed Rule 64B8-9.009, Florida
1466Administrative Code. FACS actively participated in the
1473rulemaking process, expressing concerns relating to transfer
1480agreements, hospital privileges, and the requirement for an
1488anesthesiologist in Level III surgery. FACS' purposes include
1496addressing adverse outcomes in the field of cosmetic surgery and
1506implementing recommended approaches to improve patient safety.
15135. Petitioner Charles E. Graper, D.D.S., M.D., is a
1522Florida licensed medical doctor and dentist practicing in
1530Gainesville, Florida. Graper received his doctorate in dental
1538surgery from Emory University in 1971, his medical degree from
1548Hahnemann University Medical School in 1983, and received one
1557year of post-graduate training in general surgery at Orlando
1566Regional Medical Center. Graper is Board-certified by the
1574American Board of Oral and Maxillofacial Surgery, Board-
1582certified in general cosmetic surgery, Board-eligible in general
1590plastic surgery, and is a Fellow of the American College of
1601Surgeons.
16026. Graper performs in his office cosmetic surgery,
1610functional surgery, and surgery below the head and neck which
1620would not be authorized by his dental license. Graper has been
1631practicing cosmetic surgery for 20 years and has been teaching
1641cosmetic surgery for 15 years. Graper has experience in
1650performing Level III office surgery using general anesthesia.
1658The Board of Medicine
16627. The Board of Medicine (Board) regulates the practice of
1672medicine in Florida, and is the agency that adopted the rule at
1684issue.
1685The Florida Society of Plastic Surgeons, Inc., Florida Chapter,
1694American College of Surgeons and Florida Society of
1702Dermatologists
17038. The FSPS, FCACS, and the FSD are comprised of Florida
1714physicians who practice in the areas of plastic surgery and
1724dermatology.
17259. As licensed physicians (M.D.s), members of FSPS, FCACS,
1734and FDS are subject to the regulations promulgated by the Board
1745of Medicine. A substantial number of physician members of the
1755FSPS, the FCACS, and the FSD perform office surgery and are
1766affected by the proposed amendments to Rule 64B8-9.009, Florida
1775Administrative Code.
177710. FSPS is a Florida not-for-profit corporation whose 270
1786members are board-certified plastic surgeons (of the
1793approximately 375 such physicians statewide) licensed in the
1801State of Florida pursuant to Chapter 458, Florida Statutes.
1810FSPS was created and exists for the purposes of promoting
1820plastic surgery as a science and profession. FSPS regularly
1829participates in legislative efforts, rulemaking proceedings, and
1836litigation on behalf of its members, and has participated
1845throughout the rulemaking process with respect to Florida
1853Administrative Code Rule 64B8-9.009.
185711. FCACS is a Florida not-for-profit corporation whose
18651400 members are surgeons licensed in the State of Florida
1875pursuant to Chapter 458, Florida Statutes. FCACS was created
1884and exists for the purposes of promoting surgery as a science
1895and profession. FCACS regularly participates in legislative
1902efforts, rulemaking proceedings, and litigation on behalf of its
1911members. Members of the Association, including Petitioner
1918Graper, routinely perform office surgery.
192312. FSD is a Florida not-for-profit corporation whose 462
1932members are board-certified dermatologists licensed in the State
1940of Florida pursuant to Chapter 458, Florida Statutes. FSD was
1950created and exists for the purposes of promoting surgery as a
1961science and profession. FSD regularly participates in
1968legislative efforts, rulemaking proceedings, and litigation on
1975behalf of its members. Members of the Association, including
1984David Allyn, M.D., and Diane Calderone, M.D., routinely perform
1993office surgery.
1995The Florida Society of Anesthesiologists, Inc., Florida
2002Hospital Association, Inc. and Association of Community
2009Hospitals and Health systems
201313. The FSA is a not-for-profit professional membership
2021organization representing approximately 2,000 anesthesiologists
2027in Florida. FSA members practice in educational institutions,
2035hospitals, ambulatory surgical centers, and physicians' offices.
204214. The purpose of the FSA is to provide its members
2053information about anesthesiology and to inform the public about
2062issues related to anesthesiology.
206615. The FHA and the ACHHS are nonprofit trade associations
2076which represent over 200 hospitals and health systems. FHA and
2086ACHHS represent member hospitals and health systems on common
2095interests before the branches of government, particularly with
2103respect to regulations that impact the members.
2110The Florida Nurses Association ( FNA)
211616. The Florida Nurses Association is a professional
2124association of approximately 7,500 nurses licensed in the state
2134of Florida, including approximately 1,700 advanced registered
2142nurse practitioner (ARNP) members and a substantial number of
2151CRNAs. Among its many purposes, the FNA represents the legal,
2161legislative, and professional practice interests of the members.
2169The Florida Association of Nurse Anesthetists
217517. Petitioner, Florida Association of Nurse Anesthetists
2182(FANA), is a non-profit corporation and professional
2189organization made up of more than 1,600 certified registered
2199nurse anesthetists practicing throughout Florida, many of whom
2207currently provide anesthesia for surgery performed in
2214physicians' offices. As a part of its mission, FANA advocates
2224its members' interests in legal, legislative, and professional
2232practice issues.
2234Rule Challenges by FSA and the Hospitals
224118. On July 8, 1999, the FSA filed a Petition for
2252Administrative Determination of Invalidity of Proposed Rule
2259challenging portions of the proposed amendments to Rule 64B-
22688.9009 as set forth in the Second Notice of Change. The FSA's
2280Rule challenge was assigned DOAH Case No. 99-2974RP.
228819. Also on July 8, 1999, the Hospitals filed a petition
2299for Administrative Determination of the Invalidity of Proposed
2307Rules challenging portions of the proposed amendments to Rule
231664B8-9.009 as set forth in the Second Notice of Change. The
2327Hospitals' Rule challenge was assigned DOAH Case No. 99-2975RP.
233620. The Board conducted a third public hearing on the
2346proposed Rule amendments on August 7, 1999.
235321. The Board published a Third Notice of Change to the
2364proposed Rule amendments in the August 20, 1999, issue of the
2375Florida Administrative Weekly. None of the changes in the Third
2385Notice of Change related to provisions that were in litigation.
239522. On January 12, 2000, the Board, the FSA, and the FSPS
2407filed a Joint Stipulation on provisions of Rule 64B8-9.009,
2416Florida Administrative Code (Joint Stipulation) in DOAH Case
2424No. 99- 2974RP. The Joint Stipulation released from FSA's Rule
2434challenge, Case No. 99- 2974RP, the majority of the proposed
2444amendments to Rule 64B8-9.009 and reserved only the proposed
2453amendments to Subsections (1)(e) and (6)(b)1.a. of Rule 64B8-
24629.009 for challenge.
246523. On January 26, 2000, the Hospitals filed a Notice of
2476Partial Voluntary Dismissal in DOAH Case No. 99-2975RP,
2484dismissing their challenge to all proposed amendments to Rule
249364B8-9.009, except with respect to Subsections (2)(e), (2)(f),
2501(2)( i), (4)(b)1. and 2. and (6)(b)1.a. and b.
251024. In light of the filing of the Joint Stipulation in
2521DOAH Case No. 99-2974RP, and the filing of the Notice of Partial
2533Voluntary Dismissal in DOAH Case No. 99-2975RP, the proposed
2542amendments to Rule 64B8-9.009 were no longer subject to
2551challenge, with the exception of the proposed changes to
2560Subsections (1)(e), (2)(e), (2)(f), (2)(I), (4)(b)1., (4)(b)2.,
2567(6)(b)1.a. and (6)(b)1.b. Accordingly, on January 28, 2000, the
2576Board filed the proposed amendments to Rule 64B8-9.009 that were
2586no longer subject to challenge with the Department of State for
2597Adoption. The Board subsequently conducted an additional public
2605meeting and published a fourth notice of change relating to the
2616proposed amendments to Rule 64B8-9.009 still subject to
2624challenge by the FSA and the Hospitals. These changes included
2634the withdrawal of the proposed amendments to Subsection (4)(b)1.
2643which would have changed "transfer agreement" to "transfer
2651protocol." During this public meeting, the Board was informed
2660that those parts of the Rule no longer being challenged had been
2672filed with the Department of State.
267825. On January 28, 2000, the Board filed all of its
2689proposed amendments to Rule 64B8-0.009, with the exception of
2698the amendments to Subsections (1)(e), (2)(e), (2)(f), (2)( i),
2707(4)(b)1. and 2., and (6)(b)1.a-b, for adoption with the Florida
2717Secretary of State. The proposed amendments filed for adoption
2726on January 28, 2000, became effective February 17, 2000.
273526. The Board voted to modify some of the proposed
2745amendments to Rule 64B8-9.009 still subject to challenge at its
2755public meeting on February 5, 2000.
276127. The FSA filed a Notice of Voluntary Dismissal of its
2772Rule challenge in DOAH Case No. 99-2974RP on February 7, 2000.
278328. DOAH case No. 99-2974RP was closed on February 8,
27932000.
279429. The Hospitals filed a Notice of Voluntary Dismissal of
2804their Rule challenge in DOAH Case No. 99-2975RP on March 9,
28152000, and the case was closed on March 10, 2000.
282530. The Fourth Notice of Change was published in the
2835February 18, 2000, issue of the Florida Administrative Weekly
2844noticing the changes to proposed amendments to Rule 64B8-9.009
2853voted on by the Board at its February 5, 2000, meeting.
286431. On February 25, 2000, the FACS, Graper, and Smith
2874filed a Petition for an Administrative Determination of the
2883Invalidity of a Proposed Rule challenging the Board's proposed
2892changes to Subsection (6)(b)1.a. of Rule 64B8-9.009 as published
2901in the Fourth Notice of Change. This petition was assigned DOAH
2912Case No. 00-0951RP.
291532. On March 8, 2000, the FACS, Graper, and Smith filed an
2927Amended Petition for an Administrative Determination of the
2935Invalidity of a Proposed Rule in DOAH Case No. 00-0951RP
2945challenging the Board's proposed withdrawal of the proposed
2953changes to Subsection (4)(b)1. of Rule 64B8-9.009 and the
2962proposed changes to Subsection (6)(b)1.a. of Rule 64B8-9.009 as
2971published in the Fourth Notice of Change.
297833. The Board held a public hearing on April 8, 2000, in
2990Orlando, Florida, and received testimony concerning the Fourth
2998Notice of Change. At the conclusion of the hearing, the Board
3009voted to adjourn without making any changes in the Fourth Notice
3020of Change.
302234. On April 17, 2000, the FANA filed its petition
3032challenging the Board's Fourth Notice of Change. The FANA's
3041petition was assigned DOAH Case No. 00-1622RP.
304835. DOAH Case Nos. 00-0951RP and 00-1622RP were
3056consolidated by Order of the Administrative Law Judge issued
3065May 4, 2000.
306836. The Fourth Notice of Change states that "[t]he
3077proposed changes to Subsection (4)(b)1., shall be withdrawn."
308537. With respect to Subsection (6)(b)1.a. of Rule 64B8-
30949.009, the Fourth Notice of Change states:
3101Proposed Subsection (6)(b)1.a. shall be
3106changed to read, (b) Standards for Level III
3114Office Surgery. In addition to the
3120standards for Level II Office Surgery, the
3127surgeon must comply with the following:
3133aining Required.
3135a. The surgeon must have staff privileges
3142at a licensed hospital to perform the same
3150procedure in that hospital as that being
3157performed in the office setting or must be
3165able to document satisfactory completion of
3171training such as Board certification or
3177Board qualification by a Board approved by
3184the American Board of Medical Specialties or
3191any other board approved by the Board of
3199Medicine or must be able to demonstrate to
3207the accrediting organization or to the
3213Department comparable background, training
3217and experience. In addition, the surgeon
3223must have knowledge of the principles of
3230general anesthesia. If the anesthesia
3235provider is not an anesthesiologist, there
3241must be a licensed M.D., or D.O.,
3248anesthesiologist, other than the surgeon, to
3254provide direct supervision of the
3259administration and maintenance of the
3264anesthesia.
326538. Petitioners have challenged the Fourth Notice of
3273Change on the following grounds: (1) the requirement that an
3283anesthesiologist be present for all Level III surgeries in
3292physicians' offices will increase the cost and limit surgical
3301procedures and practice opportunities of Petitioners resulting
3308in a substantial adverse financial impact on Petitioners and
3317patients; (2) the Fourth Notice of Change exceeds the Board of
3328Medicine's rulemaking authority by attempting to regulate nurse
3336anesthetists; (3) the Fourth Notice of Change conflicts with
3345existing statutes governing the practice of nurse anesthetists;
3353(4) the rule is arbitrary and capricious and is not supported by
3365competent evidence and is inconsistent with the law and policies
3375of the federal government and of 49 states; (5) the Fourth
3386Notice of Change is not supported by competent substantial
3395evidence and would not have any measurable effect on patient
3405safety; (6) the Rule was improperly adopted; and (7) that the
3416Fourth Notice of Change conflicted with the existing requirement
3425to provide a choice of anesthesia providers. Each of these
3435arguments is addressed below.
3439Final Order in DOAH Case No. 00-1058RX
344639. The Final Order in DOAH Case No. 00-1058RX invalidated
3456certain existing Rule requirements related to transfer
3463agreements and hospital staff privileges as a precondition for
3472certain office surgeries. Specifically, that Final Order
3479invalidated Subsection (4)(b) of Rule 64B8-9.009, which required
3487a transfer agreement for any physician performing Level II
3496office surgery who did not have staff privileges to perform the
3507same procedure at a licensed hospital.
351340. In addition, the Final Order invalidated Subsection
3521(6)(b) of Rule 64B8-9.009 which required a physician performing
3530Level III office surgery to have hospital staff privileges for
3540the procedure performed in an out-patient setting. As grounds
3549for invalidating the staff privileges requirement, the
3556Administrative Law Judge determined that the Board lacked
3564specific statutory authority to mandate hospital privileges,
3571thereby exceeding its grant of rulemaking authority. The Final
3580Order further determined that the requirement for hospital
3588privileges was arbitrary, deferred credentialing to individual
3595hospitals, and was not supported by competent substantial
3603evidence. During the prior hearing, the parties did not present
3613specific argument related to, nor did the Final Order consider
3623the proposed changes to the staff privileges requirement set
3632forth in the Fourth Notice of Change due to the separate Rule
3644challenge proceedings.
3646The Proposed Rule Regarding Competency Demonstration
365241. Notwithstanding, Subsection 4 of the Fourth Notice of
3661Change proposes to change Subsection (6)(b)1.a. of Rule 64B8-
36709.009 to include alternatives to hospital staff privileges as a
3680manner of demonstrating sufficient education, training and
3687competency to perform Level III surgery in an office setting.
3697The proposed change provides that a surgeon who seeks to provide
3708Level III surgery in an office setting can demonstrate training
3718as follows:
3720The surgeon must have staff privileges at a
3728licensed hospital to perform the same
3734procedure in that hospital as that being
3741performed in the office setting or must be
3749able to document satisfactory completion of
3755training such as Board certification or
3761Board qualification by a Board approved by
3768the American Board of Medical Specialties or
3775any other Board approved by the Board of
3783Medicine or must be able to demonstrate to
3791the accrediting organization or to the
3797Department comparable background, training,
3801and experience. (emphasis added)
3805The proposed Rule at issue in this proceeding continues to
3815provide for the same mechanism of hospital privileges,
3823previously invalidated. The provision remains invalid for the
3831reasons articulated in the previous Final Order.
383842. How ever, the proposed Rule also provides office
3847surgeons with two alternative methods for objectively
3854demonstrating sufficient training and competency through
3860certification by a recognized medical specialty board or through
3869direct demonstration to the Board of Medicine. That provision
3878of the proposed Rule, provides significant flexibility and
3886meaningful options to physicians seeking to perform office
3894surgery. The Board demonstrated that the options are an
3903appropriate approach for the Board to utilize in exercising its
3913delegated regulatory authority and responsibility to adopt
3920education and training standards for the office setting. The
3929Petitioners adequately challenged the provisions and the Board
3937proved the validity of the proposed alternatives by a
3946preponderance of the evidence.
3950Increased Costs
395243. Petitioners contend that the anesthesiologist
3958requirement in the Fourth Notice of Change violates Section
3967120.52(8)(g), Florida Statutes, by imposing regulatory costs on
3975the regulated person which could be reduced by the adoption of
3986less costly alternatives that substantially accomplish the
3993statutory objectives. Petitioners offered credible evidence
3999indicating that the hourly rates charged by anesthesiologists
4007range from 50 to 100 percent higher than the hourly rates
4018charged by CRNAs for similar procedures.
402444. Respondent and Intervenor, FSA, on the other hand,
4033demonstrated that hourly rates varied from market to market
4042within Florida and in a few cases, rates for anesthesiologists
4052were approximately the same as for CRNAs.
405945. The evidence is clear, however, that the charges for
4069an anesthesiologist are significantly higher than those for
4077CRNAs for similar procedures. Anesthesiologists possess broader
4084expertise, education, and training. As a result, requiring an
4093anesthesiologist for Level III office surgeries will increase
4101the total cost of a typical in-office plastic or cosmetic
4111surgery procedure between five and ten percent.
411846. Furthermore, the evidence demonstrated that although
4125some surgeons periodically use anesthesiologists during Level
4132III office surgery for a variety of reasons, including
4141availability, complexity of procedure, current health of patient
4149and contractual agreements, most surgeons utilize CRNAs due to
4158the considerable cost savings.
416247. Petitioners also claimed that the Rule would create a
4172monopoly in the provision of in-office anesthesia for
4180anesthesiologists and would force hundreds of CRNAs out of
4189office practice.
419148. The Fourth Notice of Change applies to Level III
4201surgeries, so it is reasonable to conclude that the need for
4212CRNAs to participate in the performance of Level III surgeries
4222under the supervision of an anesthesiologist will be obviated.
4231Their assistance is unnecessary and cost prohibitive.
423849. And although nurse an esthetists would still be
4247permitted to provide Level II anesthesia in the office setting
4257under the supervision of the operating surgeon, the proposed
4266Rule imposes a significant increase in the cost of Level III
4277surgeries and severely decreases competition.
4282Rulemaking Authority and Conflicting Law
428750. Petitioners mistakenly contend that the proposed
4294anesthesiologists requirement exceeds the scope of the Board of
4303Medicine's rulemaking authority and conflicts with existing law.
4311The authority for the Fourth Notice of Change is contained in
4322part in Section 458.33(1)(v), Florida Statutes, which states in
4331pertinent part:
4333The Board may establish by rule standards of
4341practice and standards of care for
4347particular practice settings, including but
4352not limited to, education and training,
4358equipment and supplies, medications
4362including anesthetics, assistance of and
4367delegation to other personnel, transfer
4372agreements, sterilization, records,
4375performance of complex or multiple
4380procedures, informed consent, and policy and
4386procedure manual in order to establish
4392grounds for disciplining doctors.
439651. Specifically, Petitioners allege that the Fourth
4403Notice of Change constitutes an impermissible attempt by the
4412Board of Medicine to regulate nurse anesthetists and conflicts
4421with Chapter 464, Florida Statutes, which permits nurse
4429anesthetists to practice under the supervision of any physician,
4438osteopath, or dentist.
444152. The parties have stipulated that Florida-certified
4448registered nurse anesthetists are licensed only by the Florida
4457Board of Nursing and are subject to discipline only by the
4468Florida Board of Nursing.
447253. In mandating that office surgeons use an
4480anesthesiologist during in-office Level III surgery, the
4487proposed Rule does not directly regulate any nurse or certified
4497registered nurse anesthetist and does not subject the CRNA to
4507any discipline by the Board of Medicine or by the Board of
4519Nursing. Thus, the Rule on its face does not conflict with the
4531delegated legislative authority to the Board of Medicine for
4540rulemaking in Section 458.331(1)(v).
4544Federal Law, Scientific Evidence, Arbitrary and Capricious,
4551Competent Substantial Evidence
455454. Petitioners contend that the Fourth Notice of Change
4563requiring an anesthesiologist be present during Level III
4571surgery is inconsistent with the laws and policies of the
4581federal government and 49 states, contrary to the overwhelming
4590weight of scientific evidence, arbitrary and capricious, and not
4599supported by competent substantial evidence.
460455. There is no evidence that the Fourth Notice of Change
4615is inconsistent with the laws and policies of the federal
4625government. There is no federal law or rule which prohibits any
4636state from establishing its own rules governing the rights of
4646various practitioners to administer or supervise the
4653administration of anesthesia in any particular setting. Federal
4661government regulations defer to state law on this subject unless
4671a state establishes a lower standard of care.
467956. While it is insignificant whether any other state
4688currently requires an anesthesiologist to be present for the
4697administration or supervision of general anesthesia in an office
4706setting, some states have considered such requirements,
4713including Pennsylvania and New Jersey.
471857. With respect to the scientific evidence presented by
4727the parties, it is clear that there is a lack of competent and
4740substantial evidence to demonstrate an increased level of safety
4749for general anesthesia patients who undergo surgery under the
4758care of an anesthesiologist as opposed to a CRNA.
476758. CRNAs are advanced registered nurse practitioners. In
4775addition to their nursing training, CRNAs must have at least one
4786year of experience in a critical care setting (such as working
4797in a hospital intensive care unit) prior to beginning their two-
4808to-three year master's level anesthesia training. Nurse
4815anesthetists typically are trained side by side with physician
4824anesthesia residents, use the same textbooks, and are taught by
4834the same instructors.
483759. Unlike physician anesthesiologists who receive a
4844general medical-surgical license that may not require any level
4853of training or expertise in the administration of anesthesia,
4862CRNAs must pass a national certifying examination in anesthesia
4871as a condition of state licensure. In addition, CRNAs must
4881complete 40 hours of continuing anesthesia education every two
4890years, and must be recertified every two years to retain their
4901state license.
490360. The evidence suggests that the safety of office
4912surgery is comparable to that of hospitals and ambulatory
4921surgery centers. Moreover, under the existing Rule, the office
4930surgeon and patient determine the most appropriate anesthesia
4938provider and setting based on the individual patient's needs.
494761. The direct testimony and scientific evidence indicate
4955no significant difference in patient outcomes based on whether
4964anesthesia is administered by an anesthesiologist or CRNA.
4972Hence, Florida law and the existing standard of care in Florida
4983permits a surgeon to supervise a CRNA in the office setting.
4994Nearly forty percent of the 1600 CRNA members of FANA provide
5005anesthesia in physicians' offices.
500962. Furthermore, the evidence indicates that
5015anesthesiologist supervision of CRNAs in hospitals is extremely
5023inconsistent. "Supervision" as defined by various hospitals
5030requires the anesthesiologists to be within five to thirty
5039minutes of the hospital. Anesthesiologists are often absent for
5048extended periods and typically "supervise" several operating
5055rooms simultaneously. In fact, Federal Medicare regulations
5062permit an anesthesiologist to receive payment for the "medical
5071direction" of as many as four CRNAs at the same time.
508263. Moreover, several smaller and often rural hospitals
5090and ambulatory surgical centers in Florida do not have
5099anesthesiologists on staff. CRNAs provide the anesthesia
5106services in those venues.
511064. Dr. David Mackey, an anesthesiologist, testified that
5118he had reviewed information on 28 deaths related to office
5128surgery which occurred between 1987 and 1999. Dr. Mackey
5137concluded that there have been nine deaths resulting from office
5147surgery in the past 12 years in which anesthesia was a cause of
5160death. However, Dr. Mackey was able to confirm that a CRNA
5171provided the anesthesia in only two of the nine cases.
518165. Office surgeons and related professional societies
5188agree that an office-based surgeon may safely supervise a CRNA.
5198Currently, there are three national accrediting organizations
5205that may accredit office surgery facilities: Joint Commission
5213on Accreditation for Ambulatory Healthcare Organizations;
5219American Association for Accreditation of Ambulatory Surgery
5226Facilities; and Accreditation Association for Ambulatory Health
5233Care. Rule 64B8-9.0091, Florida Administrative Code. None of
5241these accrediting organizations requires that CRNAs be
5248supervised by an anesthesiologist.
525266. No other state currently requires anesthesiologist
5259supervision of CRNAs in an office setting. In fact, Florida's
5269Joint Committee of the Boards of Nursing and Medicine identify
5279specific medical acts that may be performed by ARNPs, and the
5290level of physician supervision required for such acts. Section
5299464.003(a)(c), Florida Statutes. The Joint Committee does not
5307require anesthesiologist supervision of CRNAs in any setting.
531567. The U.S. Armed Forces do not require anesthesiologist
5324supervision of CRNAs in any practice setting. And the American
5334Society of Anesthesiologists' has published its own "Recommended
5342Scope of Practice for Nurse Anesthetists" which provides for
5351CRNAs to administer anesthesia under the supervision of the
5360operating surgeon.
5362Studies of Anesthesia Outcomes and Medical Error
536968. Michael B. Pine, M.D., a Board-certified cardiologist,
5377former chief of cardiology at Cincinnati Medical school, and a
5387former professor of medicine at Harvard Medical School and two
5397other medical schools, testified as an expert in healthcare
5406quality assessment and improvement. Dr. Pine has served as a
5416healthcare quality assessment and improvement consultant to the
5424JCAHO, the Health Care Financing Administration (HCFA), the
5432American Medical Association (AMA), the American Osteopathic
5439Association, the Hospital Research and Educational Trust of the
5448American Hospital Association, the American Association of Oral
5456and Maxillofacial Surgeons, the American Association of Nurse
5464Anesthetists, Blue Cross/Blue Shield, and Anthem, among others.
5472Dr. Pine characterized his career transition from clinician to
5481consultant as moving from "dealing with diseased individuals to
5490dealing with diseased organizations to help them assess their
5499problems in delivering health care and help them improve and get
5510better."
551169. Dr. Pine assisted in the development of clinical
5520indicators for JCAHO, including indicators in anesthesia care.
5528He has worked with the federal Health Care Financing
5537Administration ( HCFA) to measure hospital mortality and adjust
5546for patient severity as an indicator of hospital quality. Dr.
5556Pine's consulting experience includes evaluating outcome data
5563for individual practitioners, groups of providers, and whole
5571systems.
557270. Dr. Pine testified that the classi c study in
5582anesthesia mortality was a 1950's study by Beecher and Todd of
5593600,000 anesthetic administrations which were followed by about
56028,000 deaths, 325 of which were ultimately determined to be
5613anesthetic related. The study reflects an anesthesia mortality
5621rate of about 1:2,500. In the Beecher and Todd study, nurse
5633anesthetists performed twice as many cases as anesthesiologists,
5641but the number of deaths involving nurse anesthetists was
5650virtually the same as the number of deaths involving
5659anesthesiologists. Beecher and Todd initially hypothesized that
5666the greater mortality rate for anesthesiologists could be
5674explained by the severity of illness of the patients seen by
5685anesthesiologists rather than nurse anesthetists, but after
5692correcting for the difference in severity of illness, they
5701discovered the nurse anesthetists had actually treated patients
5709who were slightly more sick. Beecher and Todd were unable to
5720explain why physician anesthesiologists, who anesthetized only
5727half as many patients as nurse anesthetists, were involved in an
5738equal number of deaths.
574271. Dr. Pine testified that a later study, the Bechtoldt,
5752measured outcomes associated with two million anesthetics in
5760North Carolina between 1969 and 1976. The mortality rate was
5770approximately 1:24,000; a mortality rate ten times better than
5780the rate reflected in the Beecher and Todd study 20 years
5791earlier. The Bechtoldt study compared the outcomes of
5799anesthesiologists working alone, nurse anesthetists working
5805alone, and CRNAs and anesthesiologists working together, the
5813surgeon or dentist administering anesthesia him/herself, and
5820deaths in which no provider could be identified. Bechtoldt
5829concluded that:
5831When we calculated the incidence of
5837anesthetic related deaths for each group
5843which administered the anesthetic, we found
5849that the incidence among the three major
5856groups - the CRNA, the anesthesiologist, and
5863the combination of both - to be rather
5871similar. Although the CRNA working alone
5877accounted for about half the anesthesia-
5883related deaths, the CRNA working alone also
5890accounted for about half the anesthetics
5896administered.
589772. A 1980 study by Forrest of 17 hospitals and about
590810,0000 patents was one of the first studies to make a formal
5921adjustment for the sickness severity of the patients. Using
5930conservative statistical methods, Forrest concluded that "there
5937were no significant differences in outcomes" between the
5945hospitals that predominately used anesthesiologists and the
5952hospitals that predominately used nurse anesthetists.
595873. Anesthesia sa fety continued to improve as indicated by
5968a British study in the early 1980's, that used a procedure
5979similar to that used by Beecher and Todd in the 1950's. The
5991British study looked at 485,000 surgeries in which anesthesia
6001was provided. There were 4000 deaths, only 3 of which were
6012determined to be anesthetic related, reflecting an anesthesia
6020mortality rate of 1:185,000.
602574. The Institute of Medicine report entitled "To Err is
6035Human," published in 1999, reflects an even better anesthesia
6044mortality rate of 1:200,000 to 1:300,000 cases. The Institute
6055of Medicine report states:
6059The gains in anesthesia are very impressive
6066and were accomplished through a variety of
6073mechanisms including improved monitoring
6077techniques, the development and widespread
6082adoption of practice guidelines and other
6088systemic approaches to improving
6092errors . . . . the success of anesthesia,
6101was accomplished through a combination of
6107technological changes, new monitoring
6111equipment, standardization of existing
6115equipment, information-based strategies
6118including the development and adoption of
6124guidelines and standards, application of
6129human factors to improve performance such as
6136the use of simulators for training,
6142formation of the Anesthesia Patient Safety
6148Foundation to bring together stakeholders
6153form different disciplines, physicians,
6157nurses, manufacturers, to create a focus for
6164action and having a leader who would serve
6172as a champion for the cause.
617875. Dr. Pine also addressed the recent study regarding
6187anesthesia by Silber published in June 2000. This study
6196examined 7,665 deaths following 217,000 hospital procedures for
6206which medical bills were submitted to HCFA for Medicare
6215reimbursement. The study attempted to characterize the type of
6224anesthesia provider based on whether an anesthesiologist
6231submitted a bill for providing anesthesia or supervising the
6240anesthesia. The study assumed that a CRNA administered the
6249anesthesia if either the CRNA billed for it, or if no bill was
6262located. Moreover, instead of reviewing deaths that occurred
6270within 48 hours after the surgery, the study counted all deaths
6281which occurred within 30 days following surgery, and ignored any
6291non-anesthesia related complications and deaths which were
6298included in the 7,665 death toll. Conversely, the 7,665 deaths
6310in 217,000 procedures produce a mortality rate of 1:28, nearly
6321100 times greater than the mortality rate in the 1950 Beecher
6332and Todd study, and nearly 10,000 times what the 1999 Institute
6344of Medicine study reflected as the anesthetic mortality rate.
6353The greatly inflated and inconsistent death rate is highly
6362questionable and provides little scientific support for the
6370Board's proposed rule.
637376. With respect to Petitioners' argument relating to
6381arbitrary and capricious mandate, the proposed Rule would not
6390permit office-based surgeons to provide a choice of anesthesia
6399provider for Level III office surgeries, since only one
6408anesthesia provider is necessary or justified for Level III
6417office surgery, and the proposed rule mandates the participation
6426of an anesthesiologist. It is unreasonable and not economically
6435feasible for the surgeon or the patient to pay for an
6446anesthesiologist and a CRNA for the same procedure.
645477. Based on the current Rule's "choice of anesthesia
6463provider" requirement in subsection (2)(b) of the existing Rule,
6472the proposed anesthesiologist mandate for Level III surgery is
6481inconsistent, confusing and illogical to the reasonable person.
6489CONCLUSIONS OF LAW
6492Jurisdiction
649378. The Division of Administrative Hearings has
6500jurisdiction over this proceeding. Section 120.56, Florida
6507Statutes. Each of the rule challenges in this consolidated
6516proceeding was properly filed, having complied with the
6524requirements of Section 120.56, Florida Statutes.
6530Standing
653179. Pursuant to Section 120.56(1)(a), Florida Statutes,
"6538any person substantially affected by a rule or a proposed rule
6549may seek an administrative determination of the invalidity of
6558the rule on the ground that the rule is an invalid exercise of
6571delegated legislative authority." In order to meet the
6579substantially affected test, the Petitioner must establish that,
6587as a consequence of the proposed rule, it will suffer injury in
6599fact and that the injury is within the zone of interested to be
6612regulated or protected. Lanque v. Florida Department of Law
6621Enforcement , 751 So. 2d 94 (Fla. 1st DCA 1999). Petitioners
6631Smith and Graper have standing to challenge the proposed rule.
664180. In addition, the Florida Association of Nurse
6649Anesthetists ( FANA) and the Florida Nurses Association ( FNA)
6659have standing to challenge the proposed rule. Should the Fourth
6669Notice of Change become law, a significant number of CRNAs who
6680are members of FANA and FNA will be displaced from their
6691businesses and from their jobs, creating a potential injury
6700sufficient to meet the highest possible requirement of potential
6709injury set forth in State Board of Optometry v. Florida Society
6720of Ophthalmology , 538 So. 2d 878 (Fla. 1st DCA 1989).
673081. Moreover, should the proposed amendments become law,
6738Petitioners will be substantially affected due to the supply of
6748anesthesiologists available for office surgeries, the added cost
6756of such services, the disruption to their practices, and the
6766restriction of their ability to make the best patient care
6776choices for each individual patient. Similarly, the Intervenors
6784Florida Society of Plastic Surgeons, Florida Society of
6792Dermatology, and Florida Chapter, American College of Surgeons,
6800each have standing on behalf of their members. Finally, each of
6811the association parties meets the criteria for association
6819standing as set forth in Florida Home Builders Association v.
6829Department of Labor and Employment Security , 412 So. 2d 351
6839(Fla. 1982), as each has shown that (1) a substantial number of
6851its members are affected; (2) that the subject matter is within
6862the association's general scope of interest and activity; and
6871(3) that the relief sought is appropriate for the association to
6882receive on behalf of its members.
688882. Respondent, the Florida Society of Anesthesiologists
6895states similarly demonstrated that it is substantially affected
6903by the proposed rule.
690783. In addition, the Florida Hospital Association, Inc.,
6915and the Association of Community Hospitals and Health Systems of
6925Florida, Inc., have standing to participate in this proceeding.
6934Burden of Proof
693784. The parties have stipulated that the rule revision
6946included in the Fourth Notice of Change are proposed rules. As
6957a result, "the burden of persuasion is on the agency to
6968establish the validity of the proposed rule once it has been
6979properly challenged." St. Johns River Water Management Dist. V.
6988Consolidated- Tomoka Land Co. , 717 So. 2d 72 (Fla. 1st DCA 1998).
7000Hence, the Petitioners have the burden of establishing a factual
7010basis for the objections to the rule and the Board has the
7022burden of demonstrating by a preponderance of the evidence that
7032the proposed rule is a valid exercise of delegated legislative
7042authority.
7043Standard for Determining the Invalidity of a Rule
705185. A rule is an invalid exercise of delegated legislative
7061authority if:
7063(a) The agency has materially failed to
7070follow the applicable rulemaking procedures
7075or requirements set forth in Chapter 120;
7082(b) The agency has exceeded its grant of
7090rulemaking authority, citation to which is
7096required by Section 120.54(3)(a)1;
7100(c) The rule enlarges, modifies, or
7106contravenes the specific provisions of law
7112implemented, citation to which is required
7118by Section 120.54(3)(a)1.;
7121(d) The rule is vague, fails to establish
7129adequate standards for agency decisions, or
7135vests unbridled discretion in the agency;
7141(e) The rule is arbitrary or capricious;
7148(f) The rule is not supported by competent
7156substantial evidence; or
7159(g) The rule imposes regulatory costs on
7166the regulated person, county, or city which
7173could be reduced by the adoption of less
7181costly alternatives that substantially
7185accomplish the statutory objectives.
7189Section 120.52(8), Florida Statutes.
719386. While Section 458.331(1)(v), Florida Statutes, does
7200not authorize the Board of Medicine to regulate or restrict the
7211practice of nursing, the proposed rule does not regulate CRNAs,
7221Item 4 of the Fourth Notice of Change, as it relates to the
7234mandatory presence of an anesthesiologist, and does not
7242contravene Subsection (c) of Section 120.52(8), Florida
7249Statutes.
7250The Proposed Rule is Arbitrary and Capricious
725787 . In order to avoid a finding of invalidity, a rule may
7270not be arbitrary or capricious. Section 120.52(8)(e), Florida
7278Statutes; Grove Isle, Ltd. v. State Department of Environmental
7287Regulation , 454 So. 2d 571 (Fla. 1st DCA 1984); General
7297Telephone Co. of Florida v. Florida Public Service Commission ,
7306446 So. 2d 1063 (Fla. 1st DCA 1984).
731488. A rule is considered arbitrary when it is "not
7324supported by facts or logic . . . ." Agrico Chem. Co. v.
7337Department of Environmental Protection , 365 So. 2d 759, 763
7346(Fla. 1st DCA 1978). A rule is capricious where it is
7357irrational and adopted without thought or reason. See id. If
7367an agency's decision is justifiable under any analysis that a
7377reasonable person would use to reach a decision of similar
7387importance, the agency's decision is neither arbitrary or
7395capricious. See Dravo Basic Materials Co. v. Department of
7404Transp. , 602 So. 2d 632, 634n.3 (Fla. 2d DCA 1992).
741489. A proposed rule amendment that clearly contradicts a
7423section of the existing rule is inherently illogical.
743190. In the case at bar, Subsection (2)(b) of the existing
7442Rule clearly provides that "a choice of anesthesia provider
7451exists, i.e., anesthesiologist, another appropriately trained
7457physician as provided in this rule, a certified registered nurse
7467anesthetist, or physician assistant qualified as set forth in
7476Rule 64B8-30.012(2)(b)6." However, because two anesthesia
7482providers are unnecessary to perform a single office procedure,
7491it is not reasonable to expect that both an anesthesiologist and
7502a CRNA will be employed for the same procedure.
751191. Therefore, the economic burden placed upon the
7519physician and/or the patient of having two anesthesia providers
7528is unreasonable and violative of Section 455.517, Florida
7536Statutes. The relationship between Subsection (2)(b) and the
7544proposed regulation mandating the presence of an
7551anesthesiologist during Level III surgeries also creates an
7559internal inconsistency violative of 120.52(8)(e).
756492. Moreover, it is inconceivable that the informed
7572consent section of the rule with which the newly proposed rule
7583provision conflicts is not representative of the intent of the
7593Board of Medicine because the informed consent provision was
7602filed for final adoption only eight days before the proposed
7612rule provision mandating the participation of an
7619anesthesiologist at Level III was adopted by the Board.
762893. While the Respondents suggested during the hearing
7636that an anesthesiologist might be willing to lower his charges
7646for anesthesia services if a physician would give the
7655anesthesiologist the exclusive contract to provide anesthesia
7662services in the office (like the exclusive contracts often given
7672to hospitals), a surgeon may reasonably conclude that he is
7682prohibited from entering into such an agreement by the informed
7692consent requirement.
7694The Proposed Rule is Not Supported by Competent
7702Substantial Evidence
770494. Competent substantial evidence has been described as
7712such evidence as a reasonable person would accept as adequate to
7723support a conclusion. Agrico Chem. Co. , 365 So. 2d at 763; see
7735also De Groot v. Sheffield , 95 So. 2d 912, 915 (Fla.
77461957)(defining "competent substantial evidence" as "such
7752evidence as will establish a substantial basis of fact from
7762which the fact at issue can be reasonably inferred" and "such
7773relevant evidence as a reasonable mind would accept to support a
7784conclusion.").
778695. Documentation considered by the Board in adopting the
7795Fourth Notice of Change and transcripts of numerous days of
7805hearings and meeting conducted by the Board over a 22-month
7815period was admitted into evidence. Based on the full record,
7825there was insufficient scientific medical evidence to support
7833the anesthesiologist mandate for Level III surgery.
784096. The proposed regulation mandating the presence of an
7849anesthesiologist during Level III surgeries "is not supported by
7858competent substantial evidence." Section 120.52(8)(f), Florida
7864Statutes. While there can be no doubt as to the value of the
7877medical school education which anesthesiologists possess and
7884CRNAs lack, the evidence simply does not provide justification
7893for the elimination of CRNAs from the Level III office surgery
7904marketplace. Adverse incidents and deaths, albeit rarely, have
7912occurred during Level III office surgeries while an individual
7921CRNA and an anesthesiologist were providing the anesthesia.
7929However, there is no evidence suggesting that they occur with
7939more frequency under a CRNA's direction. In summary, there is
7949no reliable data demonstrating that Level III office surgery is
7959safer with an anesthesiologist than with a CRNA.
7967Rulemaking Procedures and Requirements of Chapter 120
797497. Petitioners and their Intervenors allege that the
7982Fourth Notice of Change is an "invalid exercise of delegated
7992legislative authority" because the Board failed to follow the
8001applicable rulemaking procedures or requirements of Chapter 120,
8009Florida Statutes. Specifically, Petitioners contend that the
8016Board improperly withdrew the amendments to Rule 64B8-9.009 and
8025proceeded with adoption of the remaining portions of the rule
8035with the Department of State on January 28, 2000. Petitioners
8045contend that rulemaking should have been re-initiated.
805298. Section 120.52(8)(a), Florida Statutes, provides that
8059a rule is invalid if the agency has materially failed to follow
8071the rulemaking procedures of Chapter 120. Applying the standard
8080that clear and unambiguous language must be given its plain,
8090ordinary meaning, "materially" means: "with regard to matter
8098and not to form, to a significant extent or degree." Webster's
8109Third New International Dictionary (1968). The purpose of the
8118steps in the rulemaking process is to ensure that interested
8128persons are aware of the intentions of rulemaking agency, and
8138are given an opportunity to provide substantive input regarding
8147the proposed regulation. Petitioners and their Intervenors have
8155not demonstrated that they were unaware of any portion of the
8166rulemaking process for the instant rule and, indeed,
8174participated in both public and private meetings regarding the
8183rule. The only alleged "failure" by the Board was action taken
8194consistent with the policy of the agency charged with the
8204responsibility to determine if rulemaking procedures have been
8212followed.
821399. Section 120.54(3)(e)3., Florida Statutes, states: "At
8220the time a rule is filed, the agency shall certify that the time
8233limitations prescribed by this paragraph have been complied
8241with, that all statutory requirements have been met, and that
8251there is no administrative determination pending on the rule."
8260Section 120.54(3)(e)4., Florida Statutes, further requires the
8267Department of State to reject any rule "upon which an
8277administrative determination is pending." Section
8282120.54(3)(e)4., Florida Statutes (1999).
8286100. The evidence demonstrated that the amendments to Rule
829564B8.9.009 filed for adoption with the Department of State on
8305January 28, 2000, were no longer subject to challenge by the FSA
8317and the Hospitals due to the Joint Stipulation and the Notice of
8329Parial Voluntary Dismissal. The amendments to Rule 64B8-9.009
8337were filed for adoption after consultation with the BAC and JAPC
8348and pursuant to the BAC's policy that unchallenged portions of
8358the proposed rule. Thus, the Board followed applicable
8366rulemaking procedures and requirements of Chapter 120 in
8374adopting amendments to Rule 64B8-9.009 that became effective
8382February 17, 2000, and in proposing the Fourth Notice of Change.
8393The Proposed Level III Anesthesia Rule is Invalid Because
8402It Unreasonably Restricts Competition
8406101. In Section 455.517, Florida Statutes, the Florida
8414Legislature has expressed its intent that unreasonable
8421restrictions should not be placed on regulated professions by
8430either the Department of Health or its regulating boards,
8439specifically providing:
8441(4)(a) Neither the department nor any board
8448thereof may create unreasonably restrictive
8453and extraordinary standards that deter
8458qualified persons from entering the various
8464professions. Neither the department nor any
8470board may take any action that tends to
8478create or maintain an economic condition
8484that unreasonably restricts competition,
8488except as specifically provided by law.
8494(b) Neither the department nor any
8500board may create a regulation that has an
8508unreasonable effect on job creation or job
8515retention in the state or that places
8522unreasonable restrictions on the ability of
8528individuals who seek to practice or who are
8536practicing a profession or occupation to
8542find employment.
8544102. While it is apparent that the proposed rule with
8554regard to the mandatory presence of an anesthesiologist during
8563Level III office surgeries "restricts competition" and places a
8572restriction "on the ability of individuals (i.e., CRNAs) who
8581seek to practice or who are practicing a profession or
8591occupation to find employment," the issue is whether the Board
8601acted unreasonably. Based on the lack of credible scientific
8610evidence supporting the Board's conclusion regarding patient
8617safety and its subsequent rule promulgation, the restrictions
8625are unreasonable and violate Section 455.517, Florida Statutes.
8633CONCLUSION
8634Based on the foregoing Findings of Fact and Conclusions of
8644Law, it is
8647ORDERED
86481. The portion of the first sentence relating to hospital
8658privileges is invalid.
86612. The Board proved by a preponderance of the evidence
8671that the remaining portion of the first sentence of proposed
8681Rule 64B8-9.009(6)(b)1.a. is a valid exercise of delegated
8689legislative authority pursuant to Section 120.56 and is
8697therefore determined to be valid.
87023. The second sentence of proposed Rule 64B8-
87109.009(6)(b)1.a. is valid.
87134. The third sentence is invalid.
87195. The valid portions of the Rule are as follows:
8729aining required.
8731a. The surgeon must be able to document satisfactory
8740completion of training such as Board certification or Board
8749qualification by a Board approved by the American Board of
8759Medical Specialties or any other board approved by the Board of
8770Medicine or must be able to demonstrate to the accrediting
8780organization or to the Department comparable background training
8788and experience. In addition, the surgeon must have knowledge of
8798the principles of general anesthesia.
8803DONE AND ORDERED this 16th day of November, 2000, in
8813Tallahassee, Leon County, Florida.
8817___________________________________
8818WILLIAM R. PFEIFFER
8821Administrative Law Judge
8824Division of Administrative Hearings
8828The DeSoto Building
88311230 Apalachee Parkway
8834Tallahassee, Florida 32399-3060
8837(850) 488-9675 SUNCOM 278-9675
8841Fax Filing (850) 921-6847
8845www.doah.state.fl.us
8846Filed with the Clerk of the
8852Division of Administrative Hearings
8856this 16th day of November, 2000.
8862COPIES FURNISHED:
8864Alfred W. Clark, Esquire
8868117 South Gadsden Street, Suite 201
8874Post Office Box 623
8878Tallahassee, Florida 32301-0623
8881Beverly L. Graper, Esquire
8885832 North West 57th Street
8890Gainesville, Florida 32605
8893Ann Cocheu, Esquire
8896Office of the Attorney General,
8901Department of Legal Affairs
8905The Capitol, Plaza Level 01
8910Tallahassee, Florida 32399-1050
8913Jerome W. Hoffman, Esquire
8917Karen D. Walker, Esquire
8921Holland & Knight, LLP
8925Post Office Box 810
8929Tallahassee, Florida 32302
8932M. Catherine Lannon, Esquire
8936Office of the Attorney General,
8941Department of Legal Affairs
8945The Capitol, Plaza Level 01
8950Tallahassee, Florida 32399-1050
8953James W. Linn, Esquire
8957Deborah D. Holton, Esquire
8961David Ramba, Esquire
8964Lewis, Longman & Walker, P.A.
8969125 South Gadsden Street
8973Suite 300
8975Tallahassee, Florida 32301
8978William W. Large, General Counsel
8983Department of Health
89864052 Bald Cypress Way
8990Bin A02
8992Tallahassee, Florida 32399-1701
8995Christopher L. Nuland, Esquire
8999Law Offices of Christopher L. Nuland
90051000 Riverside Avenue, Suite 200
9010Jacksonville, Florida 32204
9013Theodore M. Henderson, Agency Clerk
9018Department of Health
90214052 Bald Cypress Way
9025Bin A02
9027Tallahassee, Florida 32399-1701
9030Tanya Williams, Executive Director
9034Board of Medicine
9037Department of Health
90404052 Bald Cypress Way
9044Bin A02
9046Tallahassee, Florida 32399-1701
9049J. Stephen Menton, Esquire
9053Rutledge, Ecenia, Purnell & Hoffman, P.A.
9059Post Office Box 551
9063Tallahassee, Florida 32302-0551
9066Cynthia A. Mikos, Esquire
9070205 North Parsons Avenue, Suite A
9076Brandon, Florida 33510-4515
9079Carroll Webb, Executive Director
9083Joint Administrative Procedures Committee
9087The Holland Building, Room 120
9092Tallahassee, Florida 32399-1300
9095Liz Cloud, Chief
9098Bureau of Administrative Code,
9102Department of State
9105The Elliott Building, Room 201
9110Tallahassee, Florida 32399-0250
9113NOTICE OF RIGHT TO JUDICIAL REVIEW
9119A party who is adversely affected by this Final Order is
9130entitled to judicial review pursuant to Section 120.68, Florida
9139Statutes. Review proceedings are governed by the Florida Rules
9148of Appellate Procedure. Such proceedings are commenced by
9156filing one copy of a notice of appeal with the Clerk of the
9169Division of Administrative Hearings and a second copy,
9177accompanied by filing fees prescribed by law, with the District
9187Court of Appeal, First District, or with the District Court of
9198Appeal in the Appellate District where the party resides. The
9208notice of appeal must be filed within 30 days of rendition of
9220the order to be reviewed.
- Date
- Proceedings
- Date: 08/20/2002
- Proceedings: Returned File to the Agency.
- Date: 08/19/2002
- Proceedings: Record Returned from the District Court of Appeal
- Date: 04/19/2002
- Proceedings: Respondent`s Motion to Dismiss Petition for Fees (filed via facsimile).
- Date: 01/23/2002
- Proceedings: Opinion filed.
- PDF:
- Date: 10/10/2001
- Proceedings: Petition for Attorney`s Fees and Costs (filed by Petitioner via facsimile).
- Date: 05/24/2001
- Proceedings: Amended Answer Brief of Intervenors Florida Chapter, American College of Surgeons, Inc., Florida Society of Dermatology, Inc. and Florida Society of Plastic Surgeons, Inc. filed.
- Date: 05/18/2001
- Proceedings: Petition for Attorney`s Fees and Costs filed (fees case no. 01-1954F).
- PDF:
- Date: 05/15/2001
- Proceedings: Amended Answer Brief of Intervenors Florida Chapter, American College of Surgeons, Inc., Florida Society of Dermatology, Inc., and Florida Society of Plastic Surgeons, Inc. filed.
- Date: 04/27/2001
- Proceedings: Motion for Award of Attoney Fees filed.
- Date: 03/20/2001
- Proceedings: Index, Record, Certificate of Record sent out.
- Date: 02/07/2001
- Proceedings: Notice of Correction to Appellants` Docketing Statement filed by C. Nuland
- Date: 02/02/2001
- Proceedings: Index sent out.
- Date: 01/12/2001
- Proceedings: BY ORDER OF THE COURT: Court`s order dated 01/10/01 directing the appellant to pay the filing fee is withdrawn as issued in error filed.
- Date: 01/11/2001
- Proceedings: BY ORDER OF THE COURT: Appellant is directed to file within 10 days conformed copies of the order being appealed filed.
- Date: 01/11/2001
- Proceedings: BY ORDER OF THE COURT: Appellant shall submit the file filing fee within 30 days filed.
- Date: 01/11/2001
- Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 1D01-123
- Date: 12/15/2000
- Proceedings: Notice of Appeal filed Bd. of Medicine).
- Date: 12/15/2000
- Proceedings: Notice of Admininstrative Appeal (filed by Respondent).
- Date: 11/22/2000
- Proceedings: Petition for Writ of Mandamus (Petition Granted) filed.
- PDF:
- Date: 11/16/2000
- Proceedings: Final Order issued (hearing held July 25-27 and August 7-8, 2000) CASE CLOSED.
- Date: 09/29/2000
- Proceedings: Joint Proposed Final Order of Respondent, Florida Board of Medicine, Intervenor, Florida Society of Anesthesiologists, Inc., And Intervenors, Florida Hospital Association, Inc., And Association of Community Hospitals and Health Systems of Florida, Inc. filed.
- Date: 09/29/2000
- Proceedings: Joint Proposed Final Order of Petitioners and Intervenors Florida Association of Nurse Anesthetists Florida Society of Plastic Surgeons, Florida Chapter, American College of Surgeons, Florida Nurses Association, and Florida Society of Dermatology filed.
- PDF:
- Date: 09/18/2000
- Proceedings: Order Granting Motion for Extension of Time issued. (parties shall file proposed final orders by 9/29/2000)
- Date: 09/14/2000
- Proceedings: Petitioner`s Joint Motion for Extension of Time to File Proposed Final Order filed.
- Date: 09/01/2000
- Proceedings: Transcript (Volume 1 through 9) filed.
- Date: 08/07/2000
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- Date: 08/03/2000
- Proceedings: Excerpt of Proceedings; Notice of Filing (DOAH) filed.
- Date: 08/01/2000
- Proceedings: Ltr. to Judge W. Pfeiffer from J. Hoffman In re: additional documents. (filed via facsimile)
- Date: 07/31/2000
- Proceedings: Amended Notice of Hearing issued. (hearing set for August 7 and 8, 2000; 9:30 a.m.; Tallahassee, FL, amended as to Dates)
- Date: 07/31/2000
- Proceedings: Letter to J. Hoffman from J. Linn In re: deposition filed.
- Date: 07/25/2000
- Proceedings: CASE STATUS: Hearing Partially Held; continued to August 7 and 8, 2000 at 9:30 a.m., Tallahassee, Florida
- Date: 07/21/2000
- Proceedings: Joint Prehearing Stipulation filed.
- Date: 07/20/2000
- Proceedings: Respondent Board of Medicine`s Second Supplemental Response to the Petitioner Florida Association of Nurse Anesthetists First Request to Produce. (filed via facsimile)
- Date: 07/20/2000
- Proceedings: Board of Medicine`s Objection to Florida Association of Nurse Anesthetists Motion for Leave to File and Amended Petition to Challenge Proposed Rule Change. (filed via facsimile)
- Date: 07/20/2000
- Proceedings: Florida Association of Nurse Anesthetists` Notice of Taking Deposition-filed.
- Date: 07/20/2000
- Proceedings: Joint Pre-Hearing Statement of Intervenors Florida Society of Dermatology, Inc. and Florida Society of Plastic Surgeons, Inc. filed.
- Date: 07/19/2000
- Proceedings: The Florida Association of Nurse Anesthetists Motion for Leave to File an Amended Petition to Challenge Proposed Rule Change filed.
- Date: 07/19/2000
- Proceedings: Florida Association of Nurse Anesthetists Amended Petition to Challenge Proposed Rule Change filed.
- PDF:
- Date: 07/19/2000
- Proceedings: Amended Notice of Hearing sent out. (hearing set for July 25 through 27, 2000; 9:30 a.m.; Tallahassee, FL, amended as to Location)
- Date: 07/18/2000
- Proceedings: Return of Service; Subpoena Ad Testificandum filed.
- Date: 07/18/2000
- Proceedings: Notice of Service of Respondent Board of Medicine`s Answers to Petitioner Florida Association of Nurse Anesthetists First Set of Interrogatories. (filed via facsimile)
- Date: 07/17/2000
- Proceedings: Florida Chapter, American College of Surgeons, Inc. Petition for Leave to Intervene filed.
- Date: 07/14/2000
- Proceedings: Respondent Board of Medicine`s Notice of Production to the Florida Association of Nurse Anesthetists. (filed via facsimile)
- Date: 07/11/2000
- Proceedings: Intervenor Florida Society of Dermatology`s Response to the Florida Society of Anesthesiologists` First Request for Production of Documents filed.
- Date: 07/11/2000
- Proceedings: Intervenor Florida Society of Dermatology`s Response to Florida Society of Anesthesiologists` First Set of Interrogatories filed.
- Date: 07/11/2000
- Proceedings: Florida Society of Dermatology`s Answer to Florida Society of Anesthesiologists` First Request for Admissions filed.
- Date: 07/11/2000
- Proceedings: Notice of Substitution of Counsel (Ann Cocheu, filed via facsimile)
- Date: 07/10/2000
- Proceedings: Petitioner Florida Association of Nurse Anesthetists` Response to Florida Society of Anesthesiologists` First Request for Production of Documents filed.
- Date: 07/10/2000
- Proceedings: Petitioner Florida Association of Nurse Anesthetists` Response to Florida Society of Anesthesiologists` First Request for Admissions filed.
- Date: 07/10/2000
- Proceedings: Notice of Service of Answers to Florida Society of Anesthesiologists` First Set of Interrogatories to the Florida Association of Nurse Anesthetists filed.
- Date: 07/10/2000
- Proceedings: Notice of Appearance (filed by B. Graper) filed.
- Date: 07/07/2000
- Proceedings: Intervenor, Florida Society of Anesthesiologists` Objections and Responses to Petitioner, Florida Association of Nurse Anesthetists` First Request for Production of Documents filed.
- Date: 07/07/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Serving Objections and Responses to Petitioner, Florida Association of Nurse Anesthetists` First Set of Interrogatories filed.
- Date: 07/05/2000
- Proceedings: Florida Hospital Association, Inc. and the Association of Community Hospitals and Health Systems of Florida, Inc.`s Petition to Intervene filed.
- Date: 07/03/2000
- Proceedings: Smith, Graper, and Academy Response to FSA`s Request for Production filed.
- Date: 07/03/2000
- Proceedings: Graper Response to FSA`s Request for Admissions filed.
- Date: 07/03/2000
- Proceedings: Smith Response to FSA`s Request for Admissions filed.
- Date: 07/03/2000
- Proceedings: Florida Academy of Cosmetic Surgery, Inc.`s, Response to FSA`s Request for Admissions filed.
- Date: 07/03/2000
- Proceedings: Notice of Service of Answers to FSA`s First Set of Interrogatories (filed by Petitioners via facsimile)
- Date: 06/30/2000
- Proceedings: Motion for Extension of Time to Respond to Discovery filed.
- Date: 06/28/2000
- Proceedings: Florida Society of Plastic Surgeons`s Answer to Florida Society of Anesthesiologists First Request for Admissions filed.
- Date: 06/28/2000
- Proceedings: Florida Society of Plastic Surgeons` First Set of Interrogatories to the Florida Society of Anesthesiologists, Inc. filed.
- Date: 06/28/2000
- Proceedings: Intervenor Florida Society of Plastic Surgeons` Response to Florida Society of Anesthesiologists` First Set of Interrogatories filed.
- Date: 06/28/2000
- Proceedings: Intervenor Florida Society of Plastic Surgeons Response to the Florida Society of Anesthesiologists First Request for Production of Documents filed.
- Date: 06/28/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Taking Videotape Deposition filed.
- PDF:
- Date: 06/22/2000
- Proceedings: Notice of Hearing sent out. (hearing set for July 25 through 27, 2000; 9:30 a.m.; Tallahassee, FL)
- Date: 06/16/2000
- Proceedings: Florida Nurses Association`s Response to Florida Society of Anesthesiologists` Memorandum of Law in Opposition to Petition to Intervene of the Florida Nurses Association (filed via facsimile).
- Date: 06/13/2000
- Proceedings: Florida Society of Anesthesiologists` Memorandum of Law in Opposition to Petition to Intervene of the Florida Nurses Association filed.
- Date: 06/07/2000
- Proceedings: Florida Nurses Association`s Petition to Intervene (filed via facsimile).
- Date: 06/05/2000
- Proceedings: Petitioner Florida Association of Nurse Anesthetists` First Request to Produce to Respondent Florida Board of Medicine filed.
- Date: 06/05/2000
- Proceedings: Notice of Service of Petitioner Florida Association of Nurse Anesthetists` First Set of Interrogatories to Respondent, Board of Medicine filed.
- Date: 06/05/2000
- Proceedings: Petitioner Florida Association of Nurse Anesthetists` First Request to Produce to Intervenor Florida Society of Anesthesiologists filed.
- Date: 06/05/2000
- Proceedings: Notice of Service of Petitioner Florida Association of Nurse Anesthetists` First Set of Interrogatories to Intervenor Florida Society of Anesthesiologists filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Admissions to R. Gregory Smith, M.D. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Production of Documents to R. Gregory Smith, M.D. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Service of its First Set of Interrogatories to R. Gregory Smith, M.D. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Production of Documents to The Florida Society of Dermatology, Inc. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Admissions to The Florida Society of Dermatology, Inc. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Service of its First Set of Interrogatories to The Florida Society of Dermatology, Inc. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Service of its First Set of Interrogatories to Charles Graper, M.D., D.D.S., F.A.C.S. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Admissions to Charles Graper, M.D., D.D.S., F.A.C.S. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Production of Documents to Charles Graper, M.D., D.D.S., F.A.C.S. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Service of its First Set of Interrogatories to The Florida Society of Plastic Surgeons, Inc. filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Production of Documents to The Florida Society of Plastic Surgeons filed.
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Admissions to The Florida Society of Plastic Surgeons, Inc.; Florida Society of Anesthesiologists` First Request for Production of Documents to The Florida Society of Plastic Surgeons; Florida Societ
- Date: 06/05/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Service of its First Set of Interrogatories to The Florida Association of Nurse Anesthetists; Florida Society of Anesthesiologists` First Request for Production of Documents to The Florida Association of Nur
- Date: 06/02/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Service of its First Set of Interrogatories to The Florida Academy of Cosmetic Surgery Inc. filed.
- Date: 06/02/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Production of Documents to The Florida Academy of Cosmetic Surgery, Inc. filed.
- Date: 06/02/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Admissions to The Florida Academy of Cosmetic Surgery, Inc. filed.
- Date: 06/02/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Admissions to The Florida Association of Nurse Anesthetists filed.
- Date: 06/02/2000
- Proceedings: Florida Society of Anesthesiologists` First Request for Production of Documents to The Florida Association of Nurse Anesthetists filed.
- Date: 06/02/2000
- Proceedings: Florida Society of Anesthesiologists` Notice of Service of its First Set of Interrogatories to The Florida Association of Nurse Anesthetists filed.
- Date: 05/30/2000
- Proceedings: Order Granting Leave to Intervene sent out. (Florida Society of Dermatology, Inc)
- Date: 05/24/2000
- Proceedings: Florida Society of Dermatology, Inc. Petition for Leave to Intervene (filed via facsimile).
- PDF:
- Date: 05/04/2000
- Proceedings: Order Consolidating Cases and Granting Intervention sent out. (Fl. Society of Plastic Surgeons, Inc., Fl. Society of Dermatology, Inc., and Fl. Society of Anesthesiologists) (Consolidated cases are: 00-000951RP, 00-001622RP)
- Date: 05/02/2000
- Proceedings: (Respondent) Motion to Dismiss the Florida Association of Nurse Anesthetists` Petition to Challenge Proposed Rule Change filed.
- Date: 04/28/2000
- Proceedings: (Florida Society of Anesthesiologists, Inc.) Petition for Leave to Intervene filed.
- Date: 04/21/2000
- Proceedings: Notice of Appearance (M. Catherine Lannon and Lee Ann Gustafson, filed via facsimile) filed.
- Date: 04/21/2000
- Proceedings: Florida Society of Plastic Surgeons, Inc. and Florida Society of Dermatology, Inc. Petition for Leave to Intervene filed.
- Date: 04/20/2000
- Proceedings: Order of Assignment sent out.
- Date: 04/20/2000
- Proceedings: Letter to Liz Cloud from A. Cole w/cc: Carroll Webb and Agency General Counsel sent out.
- Date: 04/17/2000
- Proceedings: Petition to Challenge Proposed Rule Change filed.