00-004737RX Florida Medical Association, Inc. vs. Department Of Health, Board Of Acupuncture Status: Closed DOAH Final Order on Thursday, August 23, 2001.

Summary: Petitioners` members, licensed under Chapters 458 and 459, Florida Statutes, did not have standing to challenge Board of Acupuncture rules defining "acupuncture physician" under Chapter 457, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA MEDICAL ASSOCIATION, )

INC., )

)

Petitioner, )

)

and )

)

THE FLORIDA ACADEMY OF )

PHYSICIANS ASSISTANTS, )

)

Intervenor, )

)

vs. ) Case No. 00-4737RX

)

DEPARTMENT OF HEALTH, BOARD OF )

ACUPUNCTURE, )

)

Respondent, )

)

and )

)

FLORIDA STATE ORIENTAL MEDICAL )

ASSOCIATION, )

)

Intervenor. )

)

FINAL ORDER

This cause was scheduled for hearing upon the stipulated

date of May 10, 2001, but on May 3, 2001, the parties filed a

Joint Prehearing Stipulation, agreeing to present the case

without a hearing.

APPEARANCES

For Petitioner Florida Medical Association, Inc:

Francesca Plendl, Esquire

John M. Knight, Esquire

113 East College Avenue

Tallahassee, Florida 32301

For Respondent Board of Acupuncture:

Barbara Rockill Edwards, Esquire

Assistant Attorney General

Office of the Attorn ey General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Intervenor Florida Academy of Physicians Assistants:

Thomas W. Brooks, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pine Drive

Tallahassee, Florida 32301

For Intervenor Florida State Oriental Medical Association:

Stephen Marc Slepin, Esquire

Slepin and Slepin

1203 Governor's Square Boulevard

Magnolia Centre I, Suite 102

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

(1 ) Whether the Florida Medical Association, Inc. and

Florida Association of Physicians Assistants have standing to

initiate this challenge to an existing rule. (See Section

120.56(3), Florida Statutes.)

(2 ) Whether Rule 64B1-3.001(6), Florida Administrative

Code, constitutes an invalid exercise of delegated legislative

authority because it exceeds the Board of Acupuncture's

rulemaking authority contained in Section 457.104, Florida

Statutes. (See Section 120.52(8)(b), Florida Statutes).

(3 ) Whether Rule 64B1-3.001(6), Florida Administrative

Code, constitutes an invalid exercise of delegated legislative

authority because it enlarges, modifies, or contravenes the

provisions of Section 457.102, Florida Statutes. (See Section

120.52(8)(c), Florida Statutes).

PRELIMINARY STATEMENT

On November 21, 2000, Petitioner, Florida Medical

Association, Inc. (FMA) filed a Petition seeking to have

existing Rule 64B1-3.001, Florida Administrative Code, declared

an invalid exercise of delegated legislative authority by the

Board of Acupuncture.

On November 29, 2000, the case was assigned to the

undersigned. Petitions to Intervene by the Florida Academy of

Physicians Assistants (FAPA), on behalf of Petitioner, and by

the Florida State Oriental Medical Association (FSOMA), and by

Terry Brant, on behalf of the Board of Acupuncture (Board) were

granted. Thereafter, Terry Brant withdrew as an intervenor.

After consolidation with Florida Medical Ass'n . Inc., et

al. v. Dept. of Health, Bd. of Acupuncture, et al., DOAH Case

No. 01-0025RP, later bifurcation from that case, and the

granting of several Motions for Continuance, final hearing was

scheduled for May 10, 2001, but on May 3, 2001, the parties

filed a Joint Prehearing Stipulation in which they limited the

rule challenge to Rule 64B1-3.001(6), Florida Administrative

Code; stipulated to limited facts; and agreed that the case did

not require a hearing. By a May 10, 2001, Order, the final

hearing was cancelled, and June 29, 2001, was set for the filing

of proposed final orders.

FAPA adopted Petitioner's Proposed Final Order. All other

parties respectively filed Proposed Final Orders. All proposals

have been considered.

FINDINGS OF FACT

1. It was stipulated that Petitioner FMA is organized and

maintained for the benefit of approximately 16,000 licensed

allopathic and osteopathic Florida physicians. FMA's standing

in this proceeding has always been at issue. The foregoing

stipulation encompasses all of the factual allegations about the

Petitioner contained in the Petition.

2. It was stipulated that there is only one Respondent,

the Board of Acupuncture, created by the Florida Legislature and

placed within the Florida Department of Health. It is axiomatic

that the Respondent has standing herein.

3. There were no stipulations as to the standing of either

Intervenor, and both the Board and FSOMA have asserted in their

respective Proposed Final Orders that FAPA, as well as FMA, is

without standing to bring this rule challenge. However, no

party has contested the veracity of the factual statements

concerning standing in either Petition to Intervene, and no

party opposed intervention. The Petitions to Intervene of FAPA

and FSOMA were granted, subject to proving-up standing at

hearing. Even stipulations as to standing do not preclude

consideration of standing as a matter of law. Florida Medical

Ass'n ., Inc., et al. v. Dept. of Health, Florida Bd. of

Nursing, et al. , DOAH Case No. 99- 5337RP (Final Order March 13,

2000), per curiam affirmed Bd. of Nursing, et al. v. Florida

Medical Ass'n. Inc. , ___So. 2d ___ (Fla. 1st DCA 2001).

Therefore, under these circumstances, and applying that case,

the Intervenors' factual allegations for purposes of standing

may be taken as true for findings of fact, but each Intervenor's

status still depends upon that of the respective party upon

whose behalf each Intervenor entered this case.

4. Therefore, with regard to the status of FAPA, it is

found that:

FAPA is organized and maintained for the

benefit of the licensed Florida physicians

assistants who compromise [sic] its

membership and has as one of its primary

functions to represent the interests of its

members before various governmental entities

of the State of Florida, including the

Department of Health and its boards. (FAPA

Petition to Intervene)

5. Therefore, with regard to the status of FSOMA, it is

found that:

FSOMA is a Florida nonprofit corporation

comprised of over one-third of the doctors

of oriental medicine and licensed

acupuncturists under the regulatory aegis of

the Board of Acupuncture, State of Florida

Department of Health, Chapter 457, F.S.,

with a mission to represent the acupuncture

and oriental medicine practitioner interests

of its members in judicial administrative,

legislative and other proceedings. (FSOMA

Petition to Intervene)

6. Existing Rule 64B1-3.001(6), Florida Administrative

Code, was promulgated by the Board of Acupuncture.

7. The challenged rule provides:

(6 ) Acupuncture physician means any person

certified as provided in this Chapter to

practice acupuncture as a primary health

care provider.

8. The rule was adopted on August 13, 1984. It was most

recently amended on February 27, 1992.

9. The "authority" cited by the Board for the challenged

rule is Section 457.104, Florida Statutes.

10. The Board cites the "law implemented" for the

challenged rule as Section 457.102, Florida Statutes.

11. Section 457.104, Florida Statutes, currently provides:

The board has authority to adopt rules

pursuant to ss. 120.536(1) and 120.54 to

implement provisions of this chapter

conferring duties upon it.

12. Section 457.102, Florida Statutes, currently provides:

(1) "Acupuncture" means a form of primary

health care, based on traditional Chinese

medical concepts and modern oriental medical

techniques, that employs acupuncture

diagnosis and treatment, as well as

adjunctive therapies and diagnostic

techniques, for the promotion, maintenance,

and restoration of health and the prevention

of disease. Acupuncture shall include, but

not be limited to, the insertion of

acupuncture needles and the application of

moxibustion to specific areas of the human

body and the use of electroacupuncture, Qi

Gong, oriental massage, herbal therapy,

dietary guidelines, and other adjunctive

therapies, as defined by board rule .

(2) "Acupuncturist" means any person

licensed as provided in this chapter to

practice acupuncture as a primary health

care provider.

(3) "Board" means the Board of Acupuncture.

(4) "License" means the document of

authorization issued by the department for a

person to engage in the practice of

acupuncture.

(5) "Department" means the Department of

Health.

(6) "Oriental medicine" means the use of

acupuncture, electroacupuncture, Qi Gong,

oriental massage, herbal therapy, dietary

guidelines, and other adjunctive therapies.

(7) "Prescriptive rights" means the

prescription, administration, and use of

needles and devices, restricted devices, and

prescription devices that are used in the

practice of acupuncture and oriental

medicine. (Emphasis supplied)

13. Section 457.116(1)(b), Florida Statutes, provides:

(1 ) A person may not:

(b ) Use, in connection with his or her name

or place of business, any title or

description of services which incorporates

the words "acupuncture," "acupuncturist,"

"certified acupuncturist," "licensed

acupuncturist," "oriental medical

practitioner"; the letters "L.Ac.," "R.Ac.,"

" A.P. ," or "D.O.M."; or any other words,

letters, abbreviations, or insignia

indicating or implying that he or she

practices acupuncture unless he or she is a

holder of a valid license issued pursuant to

ss. 457.101-457.118; (Emphasis supplied)

14. It was stipulated that witnesses for the Respondent

Board of Acupuncture would testify that "A.P." as employed in

Section 457.116 (1) (b), Florida Statutes, means "acupuncture

physician." 1

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction of this cause and the parties hereto, pursuant to

Section 120.56(3), Florida Statutes.

16. Petitioner FMA's Proposed Final Order asserts as

grounds for its "substantial interest," and thus for its

"standing" (see Section 120.56, Florida Statutes), that "use of

the term, 'acupuncture physician' may lead patients of medical

(and presumably osteopathic) doctors (e.g. allopathic and

osteopathic physicians are the terms used in the Florida

Statutes) to believe that an acupuncturist is a professional

licensed as a physician by the State of Florida"; that "misuse

of the term 'physician' will lead the public to believe that

when they visit an acupuncturist they are being treated by a

health care provider who has obtained a level of training and

experience that licensees of the Board of Acupuncture have not

obtained"; and that "FMA has an interest in "assuring that

patients are not misled into believing that they are being

treated by a licensed Florida physician" and an interest in

ensuring that use of the title "physician" by others would not

"diminish the additional time and capital expended by allopathic

(and presumably osteopathic) physicians in acquiring this

additional training and in meeting the requirements for

licensure under their (respective professional) practice

Act(s)." (Material in parentheses has been inferred by the

undersigned.) FAPA adopts this reasoning.

17. Petitioners further assert that the challenged rule is

invalid, pursuant to Section 120.56(3), Florida Statutes,

because only the Legislature may promulgate the definition set

forth in the challenged rule; because Section 457.102, Florida

Statutes, is a list of definitions, and no rulemaking authority

was contained in the statute at the time the rule was

promulgated; and because Section 457.104, Florida Statutes,

provides the Board authority only to adopt rules to "implement

provisions of this chapter conferring duties upon it" and there

were no duties conferred in Section 457.102, Florida Statutes,

at the time the rule was promulgated. 2

18. Petitioner has the obligation to go forward and the

burden to prove the invalidity of an existing rule. However,

before the merits of validity vel non of the challenged rule may

be addressed, the threshold of "standing" must be crossed.

19. Standing of Respondent is axiomatic. (See Finding of

Fact 2.) Standing of FSOMA is clearly established, in that all

of its membership is affected by the rule and subject to

discipline by the Board. (See Finding of Fact 5.)

20. In examining FMA's and FAPA's "standing" herein, there

is no issue concerning their statuses as professional

associations. The law is well-settled that duly-constituted

professional associations are "persons" who may challenge

existing and proposed rules. What is at issue is whether these

professional associations have standing in relationship to the

rule challenged.

21. "Acupuncture" is a form of primary health care as

broadly described within Section 457.102 (1), Florida Statutes,

and subject to and "as defined by board rule."

22. Section 457.102(2), Florida Statutes, defines an

"acupuncturist" as a person licensed as provided in Chapter 457,

Florida Statutes, to practice acupuncture as a primary health

care provider.

23. Section 457.118, Florida Statutes, prohibits Chapter

457, Florida Statutes, which relates to and governs the practice

of acupuncture, from being construed so as to expand or limit

the scope of any health care professional licensed under either

Chapter 458 or Chapter 459, Florida Statutes , "as such scope of

practice is defined by statute or rule."

24. "Physician assistants" are governed by Chapters 458

and 459, Florida Statutes. Sections 458.347 and 459.022,

Florida Statutes .

25. Allopathic physicians, be they called by the public,

"allopathic physicians," "medical physicians," "medical

doctors," or just "physicians," are licensed under, and governed

by, Chapter 458, Florida Statutes. Despite FMA's Proposed Final

Order referring to both allopathic and osteopathic physicians as

"doctors," 3 Chapter 458, Florida Statutes, only recognizes the

term "physicians." Section 458.305(4), Florida Statutes.

Allopathic physicians are regulated by the Board of Medicine.

Sections 458.305(1) and (4) and 458.307, Florida Statutes.

Chapter 458, Florida Statutes, exempts them from regulation by

any other professional statutory scheme, including but not

limited to the Board of Acupuncture; Chapter 457, Florida

Statutes; and rules promulgated thereunder. Section 458.303,

Florida Statutes.

26. Osteopathic physicians, apparently never called

anything other than "osteopathic physicians," by both the public

and Chapter 459, Florida Statutes, are licensed under, and

governed by, Chapter 459, Florida Statutes. They are regulated

by the Board of Osteopathic Medicine. Sections 459.003(1) and

(4) and 459.004, Florida Statutes. That statutory scheme

exempts them from regulation by any other professional statutory

scheme, including but not limited to the Board of Acupuncture;

Chapter 457, Florida Statutes; and rules promulgated thereunder.

Section 459.002, Florida Statutes.

27. No licensed Florida "physician," defined at Section

458.305(4), Florida Statutes, as one governed by that Chapter

and the Board of Medicine, is governed by the challenged rule.

No licensed Florida "osteopathic physician," defined at Section

459.003(4), Florida Statutes, is governed by the challenged

rule. No "physician's assistant," permitted at Sections 458.347

and 459.022, Florida Statutes, is governed by the challenged

rule; and no stipulated member of FMA is governed by the

challenged rule.

28. Although it was stipulated that FMA is organized and

maintained for the benefit of member allopaths and osteopaths,

there is no evidence to the effect that either profession, as

defined and regulated by Chapters 458 or 459, Florida Statutes,

respectively, is in any way impacted-upon by Rule 64B1-3.001(6),

Florida Administrative Code. There also is no evidence that

physicians assistants, be they members of FAPA or not, are

impacted by the rule. Indeed, these professions are insulated

from any direct imposition of the rule by Chapters 457, 458, and

459, Florida Statutes.

29. Although FMA asserts in its Proposed Final Order that

"[w ] ithout a doubt, allopathic physicians receive a higher level

of training than do acupuncturists," no evidence to that effect

was presented in this case, and no evidence was presented

comparing the education, training, and experience of allopaths,

osteopaths, physicians' assistants, and acupuncturists.

However, comparison of Sections 457.105, 458.311-458.318, and

459.0055-459.008, Florida Statutes, clearly demonstrates that

there are more stringent requirements for licensure of allopaths

and osteopaths than for acupuncturists.

30. The evolution of the case law on standing must be

examined with regard to FMA's and FAPA's relationship to this

particular rule now challenged.

31. In Florida Medical Ass'n ., Inc., et al. v. Dept. of

Professional Regulation, Bd. of Optometry, et al. , 426 So. 2d

1112 (Fla. 1st DCA 1983), a determination that FMA had standing

was predicated on "economic injury" to physicians (particularly

opthmologists) licensed under Chapter 458, Florida Statutes, by

an Optometry Board rule permitting optometrists licensed under

Chapter 463, Florida Statutes , to provide treatment involving

prescription and use of "legend (or scheduled) drugs" to

patients who otherwise would be required to obtain such

treatment from physicians. "Standing" then required a showing

that (1) Petitioner would suffer injury in fact of sufficient

immediacy to entitle it to hearing, and that (2) Petitioner's

substantial injury was of the type or nature the proceeding was

designed to protect in challenging the proposed rule. In short,

the proposed rule had to be within the "zone of interest" of

physicians licensed under other statutes in order for them to

have standing. Therein, however, individual members of the

petitioner professional association piggybacked the association

regarding "the right to practice medicine as a valuable property

right, protected by the due process clause." Although

commenting that FMA had no legally recognized interest in being

free from competition, that opinion deliberately left unanswered

the question of whether or not a sufficient injury to support

"standing" is shown by claims that the rule in question will

have the effect of lessening the professional respect and esteem

of physicians in the public eye. It also opened the door to

consider the Constitution and other statutes beyond the several

professional practice Acts when determining standing. The case,

when tried on the merits, resulted in invalidation of the

challenged Board of Optometry rule, and the appellate decision

contains language, later receded from, to the effect that

standing may be affected by the correctness of the challenger's

position on the merits. Bd. of Optometry v. Florida Medical

Ass'n ., Inc., et al. , 463 So. 2d 1213 (Fla. 1st DCA 1985), pet .

rev. denied 475 So. 2d 693 (Fla. 1985).

32. In the case at bar, it is hard to fathom how the

income of allopaths, osteopaths, and physicians' assistants

would be threatened by the challenged rule now . No showing was

made that the nine years-old rule has had, or will have,

injurious effect in fact or injury of immediacy, nor was it

shown that any unasserted injury is of the type or nature which

these proceedings are designed to protect. See Agrico Chemical

Co. v. Dept. of Environmental Regulation, et al. , 406 So. 2d 478

(Fla. 2nd DCA 1981).

33. In Bd. of Optometry v. Florida Soc. of Opthalmology,

538 So. 2d 878 (Fla. 1st DCA 1989), the First District Court of

Appeal reversed a finding of standing it had declared existed in

Florida Soc. of Opthalmology; Florida Medical Ass'n ., Inc., et

al v. Bd. of Optometry , 532 So. 2d 1279, (Fla. 1st DCA 1988).

Reviewing some explicit and helpful findings of fact made by the

hearing officer, the court specifically made a lack of standing

determination against FMA's and the Society of Opthmology's

assertion that they were "authorized to represent their

patients' rights," thus rejecting a trend toward "Good

Samaritan" standing on behalf of patients or the public at large

by professional associations. The court also clearly ruled that

it was legally insufficient to predicate standing solely upon

the basis of overlapping health care practices or a continuing

general interest in the quality of care to the public and mutual

patients. Rather, direct injury in fact or of sufficient

immediacy and reality to petitioners had to be demonstrated.

Moreover, because the challengers were not subject to the rule,

they could not predicate standing on the notion that the

application of the challenged rule would prevent or obstruct

their own professional practices. The case also clearly held

that standing is not predicated on a challenger's ability to

prevail on the merits of the rule challenge, and foreshadowed

the later holdings that mere economic interest or loss for the

challenger as a result of the rule is insufficient to invoke

standing in a rule challenge and that persons not subject to a

rule have no standing to challenge that rule unless standing is

somehow devolved from a statute providing "exclusive territory"

to the challenger. 4

34. Herein, except for the speculation that use of the

term, "acupuncture physician" will "diminish (devalue) the

additional (education, training, and experience,) time and

capital expended by allopathic physicians" (material in

parentheses has been inferred by the undersigned), FMA has only

directly alleged a "Good Samaritan" argument of wanting the best

for Florida citizens and not wanting patients to confuse, to the

patients' detriment, the terms, "physician" and "physician's

assistant" in Chapter 458, Florida Statutes; "osteopathic

physician," and "physician's assistant" in Chapter 459, Florida

Statutes, and "acupuncture physician," in the challenged rule.

Petitioners assert that a technical deficiency exists as to

acupuncturists, and therefore, a potential harm exists as to

patients, but this was not demonstrated by evidence.

35. In 1993, the Florida Optometric Association challenged

a rule of the Board of Medicine. The Board filed a motion to

dismiss the association, alleging that it lacked standing to

challenge a rule of the Board of Medicine. The association was

dismissed, and that dismissal was affirmed purely because the

challengers (optometrists, their association, and a nurses'

association) were not regulated by, or subject to, rules or

discipline of the Board of Medicine. Florida Bd. of Optometry

v. Florida Bd. of Medicine, 616 So. 2d 581 (Fla. 1st DCA 1993).

Herein, the Board of Acupuncture, joined by FSOMA, urges this

very narrow interpretation of the standing necessary to

challenge any of its rules, including the one at bar. They

assert that only acupuncturists may legally challenge a Board of

Acupuncture rule.

36. Both proponents and opponents of the rule challenged

herein have cited Dept. of Professional Regulation, Bd. of

Dentistry v. Florida Dental Hygienist Ass'n ., Inc., 612 So. 2d

646 (Fla. 1st DCA 1993), and the recent case of Florida Medical

Ass'n. Inc., v. Board of Podiatric Medicine , DOAH Case No.

99- 4167RP (Final Order December 30, 1999), reversed in part in

Bd. of Podiatric Medicine v. Florida Medical Ass'n. Inc. , 779

So. 2d 658 (Fla. 1st DCA 2001). These cases and Florida Medical

Ass'n . Inc., et al. v. Dept. of Health, Florida Bd. of Nursing ,

DOAH Case No. 99- 5337RP, cited supra, Finding of Fact 3, are

worthy of discussion at this point. Together, they present some

fine distinctions in the case law sufficient to resolve the

issue of standing in the instant case.

37. The Florida Dental Hygienist Ass'n, Inc. , case

involved a challenge by dental hygienists to a proposed rule

which would have allowed dental hygienists with less educational

training (based on the incorporation of a category of dental

hygiene schools into the licensing Act) to apply for licensing

in Florida. The court held,

By allowing unqualified persons to

enter the field, the proposed rule changes

tend to diminish the value of the additional

time and capital expended by the hygienists

in order to meet the higher educational and

training standards required under existing

law. Thus, those hygienists who are already

qualified, licensed and practicing in

Florida have a sufficient interest in

maintaining the levels of education and

competence required for licensing to afford

them standing to challenge an unauthorized

encroachment upon their practice.

38. The dental hygienists case is distinguishable from the

one at bar for a number of reasons. First, it differs

significantly because therein, the challenging dental hygienists

were licensed by, and subject to discipline by, the same Board

as had promulgated the rule, and the challenging dental

hygienists were already licensed and practicing in Florida.

Their concern was with the integrity of their own profession and

licenses under existing law, versus changes to be effected by

the proposed rule. Also, the First District Court of Appeal

stated most emphatically therein that economic interest is not

sufficient to confer standing of third parties (persons outside

the practice Act) unless a statute contemplates consideration of

such interests. Therein, the dental hygienists were found to

have standing to challenge the rule because the challenged rule

would have the effect of opening their profession of dental

hygiene to persons of lesser qualifications. Likewise, the

court took into consideration that dental hygienists were

employed almost exclusively by dentists and therefore the

majority of dental hygienists were subject to dentists'

employment control. Dentists were also licensed and subject to

discipline by the same Board as had promulgated the challenged

rule. Under these circumstances, the dental hygienists who were

already licensed were "substantially affected" by the rule.

39. Herein, there was no showing that any member of FMA or

FAPA is already a licensed acupuncturist or otherwise subject to

the Board of Acupuncture which promulgated this rule.

40. On the merits, the Final Order in Florida Medical

Ass'n ., Inc., et al. v. Dept. of Health, Florida Bd. of

Nursing, et al. , DOAH Case No. 99- 5337RP, supra. , determined

that the legend drugs prescription statute precluded a Board of

Nursing rule which would have permitted Advanced Registered

Nurse Practitioners to prescribe legend drugs. In determining

that FMA and other petitioners not subject to the Board of

Nursing's rules or discipline had standing to challenge the

rule, the Administrative Law Judge considered the rule

challenged, the challenged rule in relation to the statutes

applicable to the challenging physicians, the challenged rule in

relation to the statutes applicable to the Board of Nursing, and

the challenged rule in relation to independent statutes dealing

specifically with the subject matter of legend drugs. Having

done so, he determined that FMA had standing to challenge the

Board of Nursing rule, despite the different practice Acts

applying to nurses, allopaths, and osteopaths, because the

several practice Acts and the challenged rule itself

contemplated a role of oversight of Advanced Registered Nurse

Practitioners by both allopathic and osteopathic physicians and

this oversight role was both real and immediate. His approach

is analogous to the dental hygienists case, and likewise is

distinguishable from the case at bar. Herein, no statute of

"exclusive territory" (such as the legend drug statute) has been

shown to contemplate standing by allopaths, osteopaths,

physicians assistants, FMA, or FAPA. Neither association, nor

any member thereof, has an oversight role as to acupuncturists.

41. In Florida Medical Ass'n . Inc., v. Bd. of Podiatric

Medicine , DOAH Case No. 99- 4167RP (Final Order December 30,

1999), reversed on the merits in Bd. of Podiatric Medicine v.

Florida Medical Ass'n ., Inc. , 779 So. 2d 658 (Fla. 1st DCA

2001), the Administrative Law Judge determined that FMA had

standing to challenge a proposed rule of the Board of Podiatric

Medicine because the definition within the proposed rule

expanded podiatrists' scope of practice into an area of the

human leg reserved exclusively for allopathic and osteopathic

physicians. The Final Order invalidated the proposed rule. On

appeal, the First District Court of Appeal reversed the Final

Order's determination on the merits, by holding that the

proposed rule was valid. The decision did not discuss the

standing issue, which FMA and FAPA assert herein had been

extensively briefed before that appellate court. FMA and FAPA

further assert that by its silence on the standing issue, the

First District Court of Appeal implicitly acquiesced in the

Administrative Law Judge's conclusion that FMA had standing to

challenge the rules of a Board which does not regulate members

of the association, and that same should be the grounds of

determining Petitioners' standing in the instant case.

42. The undersigned does not concur. There is no standard

of case interpretation that permits the inference that

Petitioners assert. Also, it was reasonable to suppose that

until the Board of Podiatry rule defining "leg" expanded the

statutory definition thereof from the area strictly below the

knee to include the area above the knee, the area above the knee

was, by law, the exclusive statutory territory of allopaths and

osteopaths. Certainly, the Administrative Law Judge in that

case saw a distinction between the concept of an "exclusive

statutory territory" of allopaths and osteopaths based on what

was not included in the podiatry statute's bounds of podiatry

practice, which concept previous courts have used to uphold

challengers' standings, and the concept of mere overlapping of

the traditional practice of medicine into a body part also

treated by another type of health care provider, such as a leg

or an eye, which latter concept previous courts have ruled will

not support standing to challenge a rule. However, that

distinction apparently did not sway the appellate court on the

merits, and that distinction simply does not exist in the case

at bar. No "exclusive territory" statute has been presented

herein for purposes of determining FMA's and FAPA's standing.

43. The undersigned shares the concerns of the

Administrative Law Judge in the podiatrists case that Florida's

narrowing view of "standing" ensures that only persons governed

by a rule may challenge that rule but never will challenge it.

Likewise, there may be excellent grounds to invalidate this

challenged rule, but the case law is now clear that the merits

of a rule challenge may not even be considered if standing does

not exist.

44. Speculative economic loss alone will not create

standing, and although the case law leaves open the possibility

that loss of esteem in the eyes of the public for allopaths and

osteopaths if more professions assume the title of "physician"

may be considered in relationship to the standing issue, that

theory is too remote and without any evidentiary support herein.

Moreover, "loss of esteem" of another profession does not

constitute a real or immediate injury in fact. Although the

effect or impact of the challenged rule itself and of the

challenged rule in relation to other statutes may be considered

in determining standing, that has been done here and is not

helpful to Petitioners. A demonstration of overlapping

practices based solely on body parts or patients will not

support a finding of standing. Neither challenger nor their

respective memberships are subject in any way to the challenged

rule; the rule contemplates no involvement or oversight by

either challenger of any acupuncturist or of acupuncturists over

them. The challengers have alleged a proprietary or exclusive

interest in the word, "physician," but Respondents point out

that the word, "physician," is not a strictly statutory term any

more than "leg" and that "physician" has many meanings in common

usage. Likewise, Petitioners have pointed to no statute that

currently confers or formerly conferred an area of practice

exclusive to themselves which this rule invades.

45. Under the controlling case law, standing cannot exist

on any theory that the challengers derive standing from

representation of their patients, potential patients, or

patients mutual to acupuncturists. In so saying, the

undersigned has not overlooked the possibility of a continuum of

care being provided by allopaths and osteopaths for persons

previously mistreated by another health care professional, which

theory was discussed by the Administrative Law Judge in the

podiatrists' case. There just is no evidence herein to find

that mistreatment of patients by acupuncturists will now occur

as a result of this rule, just as there is no evidence herein

that this very old rule will somehow now immediately cause

confusion among potential patients as to which variety of

primary health care provider they should employ.

46. FMA and FAPA have not borne their burden to establish

standing to challenge this rule. Having made this

determination, it is not necessary to address the validity vel

non of the rule itself.

ORDER

Petitioner, Florida Medical Association, Inc., and

Intervenor, Florida Association of Physicians Assistants, are

without standing to challenge existing Rule 64B1-3.001(6),

Florida Administrative Code, and the challenge is accordingly

dismissed.

DONE AND ORDERED this 23rd day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of August, 2001.

ENDNOTES

1/ No legislative history was presented to validate this

statement. Even if a legislative history had been presented,

the statement is, at best, merely someone's opinion of what the

statute means. Witnesses do not interpret the law, and

stipulations on what the words of a statute mean are neither

useful nor binding in these proceedings.

Statutes "speak for themselves."

This statute does not inform the reader what "A.P." means.

The Legislature could have intended it to mean an educational

degree conferred. It is noted that " D.O.M," is used in the same

sub-section; that " D.O.M." commonly refers to a "Doctor of

Osteopathic Medicine" degree and is recognized as such for

purposes of Chapter 459, Florida Statutes, at Section

459.003(5), Florida Statutes. However, from the context of

Section 457.116(1)(b), Florida Statutes, " D.O.M." as used in

that statute could just as easily be meant to refer to "Doctor

of Oriental Medicine" or something else. Likewise, the

Legislature could have intended "A.P." to mean "acupuncture

practitioner," "acupuncture professional," or "acupuncture

provider," just as well as "acupuncture physician." More

likely, Section 457.116(1)(b), means exactly what it says, that

persons not licensed under that Chapter are prohibited from

using the term " A.P." because the term itself is subject to

misinterpretation.

2/ The assertion that only the Legislature may promulgate the

definition is clear enough, but as to Petitioners' other

assertions, the undersigned anticipated some discussion or legal

argument based on the content of these statutes at the time the

rule was promulgated (1984) or most recently amended (1992) or

some argument based on the requirements of subsequent

independent legislation requiring those agencies/boards, which

retained existing rules after certain dates, to justify the

retention of those existing rules at a legislative committee

review, of sorts. However, no party briefed such an argument,

and the undersigned therefore elects to take the statutes and

rule "as we find them" as of the date of hearing.

That being the case, the undersigned concludes that

Petitioner's argument on the merits was intended to suggest that

Sections 457.102 and 457.104 are insufficient grants of rule-

making authority to enact the challenged rule and that no duties

"to be implemented" are contained in Section 457.102, which

Petitioner asserts constitutes only a list of definitions.

3/ The Proposed Final Order inadvertently used the common usage

terms "doctors" and "medical doctors." Allopaths most often

obtain the educational degree of "M.D.," symbolizing "Medical

Doctor," and osteopaths most often obtain an educational degree

of "D.O.," symbolizing Doctor of Osteopathy," or "D.O.M.,"

symbolizing "Doctor of Osteopathic Medicine."

4/ Prior to this case, the prescription of legend drugs had

been limited to allopathic and osteopathic physicians, within

whose practice Acts the opthmologists whom FMA and the Society

represented operated their practices. However, in this case,

the challenged rule was promulgated to implement a new statutory

amendment permitting optometrists to use legend drugs.

COPIES FURNISHED :

William H. Buckhalt, Executive Director

Board of Acupuncture

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Thomas W. Brooks, Esquire

Meyer & Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

John M. Knight, Esquire

Francesca Plendl, Esquire

113 East College Avenue

Tallahassee, Florida 32301

Stephen Marc Slepin, Esquire

Slepin and Slepin

1203 Governor's Square Boulevard

Magnolia Centre I, Suite 102

Tallahassee, Florida 32301-2684

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a notice of appeal with the Clerk of the

Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the Appellate District where the party resides. The

notice of appeal must be filed within 30 days of rendition of

the order to be reviewed.