99-004167RP
Florida Medical Association vs.
Department Of Health, Board Of Podiatric Medicine
Status: Closed
DOAH Final Order on Thursday, December 30, 1999.
DOAH Final Order on Thursday, December 30, 1999.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8FLORIDA MEDICAL ASSOCIATION, )
12)
13Petitioner, )
15)
16vs. ) Case No. 99- 4167RP
22)
23DEPARTMENT OF HEALTH, BOARD OF )
29PODIATRIC MEDICINE, )
32)
33Respondent. )
35__________________________________)
36FINAL ORDER
38Pursuant to Notice, this cause was heard by Linda M. Rigot,
49the assigned Administrative Law Judge of the Division of
58Administrative Hearings, on November 8, 1999, in Tallahassee,
66Florida.
67APPEARANCES
68For Petitioner: Francesca Plendl, Esquire
73John M. Knight, Esquire
77Florida Medical Association
80113 East College Avenue
84Tallahassee, Florida 32301
87For Respondent: Ann Cocheu, Esquire
92Office of the Attorney General
97The Capitol, Plaza Level 01
102Tallahassee, Florida 32399-1050
105STATEMENT OF THE ISSUE
109The issue presented is whether Respondent's proposed Rule
11764B18-23.001, Florida Administrative Code, is an invalid
124exercise of delegated legislative authority.
129PRELIMINARY STATEMENT
131On October 4, 1999, Petitioner Florida Medical Association
139filed its Petition to Determine the Invalidity of Proposed Rule
149challenging proposed Rule 64B18-23.001, Florida Administrative
155Code, promulgated by Respondent Department of Health, Board of
164Podiatric Medicine.
166At the final hearing Petitioner presented the testimony of
175Lynn J. Romrell, Ph.D., and James B. Dolan, M.D. The Board
186presented the testimony of Stephen M. Meritt, D.P.M.
194Additionally, Petitioner's Exhibits numbered 1 and 2 and the
203Board's Exhibits numbered 1 and 2 were admitted in evidence.
213Both parties submitted proposed final orders after the
221conclusion of the evidentiary hearing. Those documents have
229been considered in the entry of this Final Order.
238FINDINGS OF FACT
2411. Petitioner Florida Medical Association is a statewide
249organization of approximately 16,000 physicians and osteopathic
257physicians licensed in Florida pursuant to Chapters 458 and 459,
267Florida Statutes, respectively. Petitioner assists Florida
273physicians in improving the health and welfare of the citizens
283of the State of Florida by representing the physicians in
293regulatory, legislative, and educational venues.
2982. Respondent Department of Health, Board of Podiatric
306Medicine, is the regulatory body responsible for regulating
314podiatrists licensed pursuant to Chapter 461, Florida Statutes.
3223. Section 461.003(5), Florida Statutes, provides that:
329'Practice of podiatric medicine' means the
335diagnosis or medical, surgical, palliative,
340and mechanical treatment of ailments of the
347human foot and leg. The surgical treatment
354of ailments of the human foot and leg shall
363be limited anatomically to that part below
370the anterior tibial tubercle. The practice
376of podiatric medicine shall include the
382amputation of the toes or other parts of the
391foot but shall not include the amputation of
399the foot or leg in its entirety. A
407podiatrist may prescribe drugs that relate
413specifically to the scope of practice
419authorized herein.
4214. Medically and anatomically, the term "leg" means that
430part of the lower extremity below the anterior tibial tubercle,
440i.e. , below the knee. The region above the knee is referred to
452as the "thigh." These are basic anatomy terms and definitions
462used by healthcare professionals, including podiatrists. These
469basic terms are found in the textbooks used to teach podiatric
480students, and podiatric schools use these definitions when
488requesting body parts from the State Anatomical Board.
4965. In response to an i nsurance carrier denying a claim on
508the basis that a podiatrist had treated a patient beyond the
519scope of the practice of podiatry, the Board considered the
529statutory definition of the practice of podiatric medicine. It
538discovered that some textbooks include a secondary definition
546for the term "leg" as being the entire lower extremity. The
557Board determined, therefore, that it would promulgate a rule
566using the secondary definition of leg rather than the medical or
577anatomical definition. It also determined it would define the
586term "surgical treatment," which appears in the statute.
5946. The Board's Proposed Rule 64B18-23.001, Florida
601Administrative Code, contains the following definitions:
607(1) The term "human leg," as used in
615s.461.003(5), Florida Statutes, means the
620entire lower extremity, extending from the
626head of the femur to the foot, but does not
636include the hip joint.
640(2) The term "surgical treatment," as
646used in s.461.003(5), Florida Statutes,
651means a distinctly operative kind of
657treatment, such as a cutting operation. As
664such, injections, x-rays, and other medical,
670palliative, and mechanical diagnostic
674techniques and treatments are not surgery.
680Specific Authority 461.005 FS.
684Law Implemented 461.003(5) FS.
688History -- New.
6917. The definiti on of leg in the proposed rule expands the
703scope of practice authorized by the statute. The definition of
713surgical treatment in the proposed rule expands the scope of
723practice authorized by the statute and creates confusion in that
733certain diagnostic techniques do fall under the medical
741definition of surgical treatment.
7458. The proposed rule substantially affects orthopedic
752physicians, vascular surgeons, physical medicine rehabilitation
758physicians, plastic surgeons, family practitioners, and other
765physicians in Florida, including those represented by
772Petitioner, in that under the proposed rule the practice of
782podiatry is expanded to include areas of the body treated by
793physicians and not by podiatrists and to allow podiatrists to
803perform procedures not previously authorized. Petitioner has an
811interest in assuring that patients are treated by appropriately
820trained personnel practicing within their authorized scope of
828practice.
8299. The proposed rule substantially affects the general
837healthcare of patients in the State of Florida. This is a
848concern for the physicians represented by Petitioner since these
857physicians are often involved in treating patients who have been
867inappropriately treated by other professionals. The proposed
874rule allows podiatrists to practice beyond their areas of
883training and expertise.
886CONCLUSIONS OF LAW
88910. The Division of Administrative Hearings has
896jurisdiction over the parties and the subject matter of this
906proceeding. Sections 120.56(1) and (2), 120.569, and 120.57(1),
914Florida Statutes.
91611. The Board has the burden of proving that its proposed
927rule is not an invalid exercise of delegated legislative
936authority. Section 120.56(2)(a), Florida Statutes. The Board
943has failed to carry its burden.
94912. The Board has rulem aking authority in certain areas
959only. Section 461.005, Florida Statutes, provides as follows:
967The Board of Podiatric Medicine is
973authorized to make such rules not
979inconsistent with law as are necessary to
986carry out the duties and authority conferred
993upon the board by this chapter and as may be
1003necessary to protect the health, safety, and
1010welfare of the public.
101413. Nowhere in Chapter 461 or in Sections 461.003(5) or
1024461.005 is the Board granted the authority to define the scope
1035of practice of podiatric medicine nor is defining the scope of
1046practice of podiatric medicine a duty conferred upon the Board.
1056Further, the Board offered no evidence to show that the proposed
1067rule is necessary to protect the health, safety, and welfare of
1078the public; rather, the evidence is uncontroverted that the
1087reason for the proposed rule is to assist podiatrists in having
1098their bills paid by insurance carriers. Accordingly, the Board
1107has exceeded its grant of rulemaking authority. Section
1115120.52(8)(b), Florida Statutes.
111814. Interestingly, the Board's position, as stated in the
1127Prehearing Stipulation filed in this cause, is that this rule
1137challenge "is a turf battle properly considered in the
1146legislative, not the administration [sic] arena." The Board is
1155correct that only the Legislature can define the scope of
1165practice for podiatric physicians, not the Board.
117215. The Board argues a very narrow interpretation of the
1182standing necessary to challenge its proposed rule. The Board
1191argues that only podiatrists can challenge a rule of the Board
1202of Podiatric Medicine. Since the proposed rule authorizes an
1211expanded scope of practice, it is unlikely that podiatrists
1220would challenge it. Under the Board's narrow interpretation of
1229standing, its proposed rule is essentially immune from
1237challenge, an outcome contrary to Section 120.56, Florida
1245Statutes.
124616. Petitioner does have standing to challenge the Board's
1255proposed rule. Petitioner represents physicians with an
1262interest in ensuring that patients are treated by appropriately
1271trained personnel practicing within their authorized scope of
1279practice. Further, Petitioner represents the interests of
1286physicians who were exclusively authorized to treat patients
1294from the knee to the hip, which the proposed rule, not the
1306underlying statute, would authorize podiatrists to also treat.
131417. The proposed rule is an invalid exercise of delegated
1324legislative authority pursuant to Section 120.52(8)(e) and (f),
1332Florida Statutes, in that it is arbitrary and capricious and the
1343definitions contained therein are not supported by competent or
1352substantial evidence.
135418. The proposed rule is also an invalid exercise of
1364delegated legislative authority in that it violates the
1372requirements of Section 120.536(1), Florida Statutes. That
1379Section requires that agencies only promulgate rules that
1387implement or interpret specific powers and duties. Section
1395461.003(5), Florida Statutes, does not grant the power or confer
1405the duty on the Board to define the term leg or the term
1418surgical treatment.
1420CONCLUSION
1421Bas ed upon the foregoing Findings of Fact and Conclusions
1431of Law, it is
1435ORDERED THAT Proposed Rule 64B18-23.001(1) and (2) is an
1444invalid exercise of delegated legislative authority.
1450DONE AND ORDERED this 30th day of December, 1999, in
1460Tallahassee, Leon County, Florida.
1464___________________________________
1465LINDA M. RIGOT
1468Administrative Law Judge
1471Division of Administrative Hearings
1475The DeSoto Building
14781230 Apalachee Parkway
1481Tallahassee, Florida 32399-3060
1484(850) 488-9675 SUNCOM 278-9675
1488Fax Filing (850) 921-6847
1492www.doah.state.fl.us
1493Filed with the Clerk of the
1499Division of Administrative Hearings
1503this 30th day of December, 1999.
1509COPIES FURNISHED:
1511Francesca Plendl, Esquire
1514John M. Knight, Esquire
1518Florida Medical Association
1521113 East College Avenue
1525Tallahassee, Florida 32301
1528Ann Cocheu, Esquire
1531Office of the Attorney General
1536The Capitol, Plaza Level 01
1541Tallahassee, Florida 32399-1050
1544Joe Baker, Jr., Executive Director
1549Board of Podiatric Medicine
1553Department of Health
1556BIN C07
15582020 Capital Circle, Southeast
1562Tallahassee, Florida 32399-3257
1565Angela T. Hall, Agency Clerk
1570Department of Health
1573BIN A02
15752020 Capital Circle, Southeast
1579Tallahassee, Florida 32399-1703
1582Pete Peterson, General Counsel
1586Department of Health
1589BIN A02
15912020 Capital Circle, Southeast
1595Tallahassee, Florida 32399-1701
1598Carroll Webb
1600Executive Director and General Counsel
1605Joint Administrative Procedures Committee
1609Holland Building, Room 120
1613Tallahassee, Florida 32399-1300
1616Liz Cloud, Chief
1619Department of State
1622Bureau of Administrative Code
1626The Elliott Building
1629Tallahassee, Florida 32399-0250
1632NOTICE OF RIGHT TO JUDICIAL REVIEW
1638A party who is adversely affected by this Final Order is
1649entitled to judicial review pursuant to Section 120.68, Florida
1658Statutes. Review proceedings are governed by the Florida Rules
1667of Appellate Procedure. Such proceedings are commenced by
1675filing one copy of a Notice of Appeal with the agency clerk of
1688the Division of Administrative Hearings and a second copy,
1697accompanied by filing fees prescribed by law, with the District
1707Court of Appeal, First District, or with the District Court of
1718Appeal in the appellate district where the party resides. The
1728Notice of Appeal must be filed within 30 days of rendition of
1740the order to be reviewed.
- Date
- Proceedings
- Date: 05/08/2001
- Proceedings: Returned from District Court of Appeal filed.
- Date: 04/05/2001
- Proceedings: MANDATE filed.
- Date: 03/20/2001
- Proceedings: Opinion filed.
- Date: 07/10/2000
- Proceedings: Petitioner`s Response to Amended Initial Order and to Respondent`s Motion to Hold Matter in Abeyance filed. (NOTE: pleading transferred to Fees Case No. 00-2531F)
- Date: 07/03/2000
- Proceedings: Response to Order to Show cause and Motion to Hold Matter in Abeyance (Respondent) filed. (NOTE: pleading transferred to Fees Case No. 00-2531F)
- Date: 06/20/2000
- Proceedings: Order to Show Cause sent out. (respondent shall file response by July 6, 2000; NOTE: Copy of this document filed in Fees Case No. 00-2531F)
- Date: 05/23/2000
- Proceedings: Index, Record, Certificate of Record sent out.
- Date: 05/17/2000
- Proceedings: Payment in the amount of $95.00 for preparing the record filed.
- Date: 05/12/2000
- Proceedings: Petitioner`s Motion for Attorney`s Fees filed. (DOAH Case No. 99-4167RP established)
- Date: 05/12/2000
- Proceedings: Petitioner`s Motion for Attorney`s Fees filed. (NOTE: Pleading transferred to Fees Case No. 00-2531F)
- Date: 03/17/2000
- Proceedings: Index in the amount of $95.00 sent out.
- Date: 02/02/2000
- Proceedings: Letter to DOAH from DCA filed. DCA Case No. 1D00-357.
- Date: 01/27/2000
- Proceedings: Notice of Appeal filed.
- Date: 01/27/2000
- Proceedings: Notice of Appeal filed.
- PDF:
- Date: 12/30/1999
- Proceedings: CASE CLOSED. Final Order sent out. Hearing held November 8, 1999.
- Date: 12/13/1999
- Proceedings: Respondent`s Proposed Final Order filed.
- Date: 12/13/1999
- Proceedings: Petitioner`s Proposed Order filed.
- Date: 11/29/1999
- Proceedings: Notice of Filing; (Volume 1 of 1) DOAH Court Reporter Final Hearing Transcript filed.
- Date: 11/08/1999
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/29/1999
- Proceedings: Respondent`s Amendment to Prehearing Stipulation filed.
- Date: 10/26/1999
- Proceedings: (Joint) Prehearing Stipulation filed.
- Date: 10/20/1999
- Proceedings: Order sent out. (Respondent`s motion to Dismiss is denied)
- Date: 10/19/1999
- Proceedings: Petitioner`s Response to Motion to Dismiss and Motion for Summary Final Order filed.
- Date: 10/14/1999
- Proceedings: Respondent`s Motion to Dismiss or in the Alternative, Motion for Summary Final Order
- Date: 10/08/1999
- Proceedings: Order of Pre-hearing Instructions sent out.
- Date: 10/08/1999
- Proceedings: Notice of Hearing sent out. (hearing set for November 8, 1999; 9:30 a.m.; Tallahassee, Florida)
- Date: 10/07/1999
- Proceedings: Order of Assignment sent out.
- Date: 10/05/1999
- Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.