00-001622RP Florida Association Of Nurse Anesthetists vs. Department Of Health, Board Of Medicine
 Status: Closed
DOAH Final Order on Tuesday, January 9, 2001.


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Summary: Petitioner challenged portions of proposed amendments to the office surgery rule, including training requirements and the mandated presence of an anesthesiologist.

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.

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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).
PDF:
Date: 03/20/2002
Proceedings: Mandate filed.
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: Recommended Order
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: Order of Pre-hearing Instructions sent out.
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.

Case Information

Judge:
WILLIAM R. PFEIFFER
Date Filed:
04/17/2000
Date Assignment:
04/20/2000
Last Docket Entry:
08/20/2002
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Health
Suffix:
RP
 

Related DOAH Cases(s) (5):

Related Florida Statute(s) (5):

Related Florida Rule(s) (2):