99-004167RP Florida Medical Association vs. Department Of Health, Board Of Podiatric Medicine Status: Closed DOAH Final Order on Thursday, December 30, 1999.

Summary: Proposed rule is invalid since it exceeded the Board`s rulemaking authority, was arbitrary and capricious, and was not supported by competent or substantial evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA MEDICAL ASSOCIATION, )

)

Petitioner, )

)

vs. ) Case No. 99- 4167RP

)

DEPARTMENT OF HEALTH, BOARD OF )

PODIATRIC MEDICINE, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on November 8, 1999, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

John M. Knight, Esquire

Florida Medical Association

113 East College Avenue

Tallahassee, Florida 32301

For Respondent: Ann Cocheu, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Respondent's proposed Rule

64B18-23.001, Florida Administrative Code, is an invalid

exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On October 4, 1999, Petitioner Florida Medical Association

filed its Petition to Determine the Invalidity of Proposed Rule

challenging proposed Rule 64B18-23.001, Florida Administrative

Code, promulgated by Respondent Department of Health, Board of

Podiatric Medicine.

At the final hearing Petitioner presented the testimony of

Lynn J. Romrell, Ph.D., and James B. Dolan, M.D. The Board

presented the testimony of Stephen M. Meritt, D.P.M.

Additionally, Petitioner's Exhibits numbered 1 and 2 and the

Board's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted proposed final orders after the

conclusion of the evidentiary hearing. Those documents have

been considered in the entry of this Final Order.

FINDINGS OF FACT

1. Petitioner Florida Medical Association is a statewide

organization of approximately 16,000 physicians and osteopathic

physicians licensed in Florida pursuant to Chapters 458 and 459,

Florida Statutes, respectively. Petitioner assists Florida

physicians in improving the health and welfare of the citizens

of the State of Florida by representing the physicians in

regulatory, legislative, and educational venues.

2. Respondent Department of Health, Board of Podiatric

Medicine, is the regulatory body responsible for regulating

podiatrists licensed pursuant to Chapter 461, Florida Statutes.

3. Section 461.003(5), Florida Statutes, provides that:

'Practice of podiatric medicine' means the

diagnosis or medical, surgical, palliative,

and mechanical treatment of ailments of the

human foot and leg. The surgical treatment

of ailments of the human foot and leg shall

be limited anatomically to that part below

the anterior tibial tubercle. The practice

of podiatric medicine shall include the

amputation of the toes or other parts of the

foot but shall not include the amputation of

the foot or leg in its entirety. A

podiatrist may prescribe drugs that relate

specifically to the scope of practice

authorized herein.

4. Medically and anatomically, the term "leg" means that

part of the lower extremity below the anterior tibial tubercle,

i.e. , below the knee. The region above the knee is referred to

as the "thigh." These are basic anatomy terms and definitions

used by healthcare professionals, including podiatrists. These

basic terms are found in the textbooks used to teach podiatric

students, and podiatric schools use these definitions when

requesting body parts from the State Anatomical Board.

5. In response to an i nsurance carrier denying a claim on

the basis that a podiatrist had treated a patient beyond the

scope of the practice of podiatry, the Board considered the

statutory definition of the practice of podiatric medicine. It

discovered that some textbooks include a secondary definition

for the term "leg" as being the entire lower extremity. The

Board determined, therefore, that it would promulgate a rule

using the secondary definition of leg rather than the medical or

anatomical definition. It also determined it would define the

term "surgical treatment," which appears in the statute.

6. The Board's Proposed Rule 64B18-23.001, Florida

Administrative Code, contains the following definitions:

(1) The term "human leg," as used in

s.461.003(5), Florida Statutes, means the

entire lower extremity, extending from the

head of the femur to the foot, but does not

include the hip joint.

(2) The term "surgical treatment," as

used in s.461.003(5), Florida Statutes,

means a distinctly operative kind of

treatment, such as a cutting operation. As

such, injections, x-rays, and other medical,

palliative, and mechanical diagnostic

techniques and treatments are not surgery.

Specific Authority 461.005 FS.

Law Implemented 461.003(5) FS.

History -- New.

7. The definiti on of leg in the proposed rule expands the

scope of practice authorized by the statute. The definition of

surgical treatment in the proposed rule expands the scope of

practice authorized by the statute and creates confusion in that

certain diagnostic techniques do fall under the medical

definition of surgical treatment.

8. The proposed rule substantially affects orthopedic

physicians, vascular surgeons, physical medicine rehabilitation

physicians, plastic surgeons, family practitioners, and other

physicians in Florida, including those represented by

Petitioner, in that under the proposed rule the practice of

podiatry is expanded to include areas of the body treated by

physicians and not by podiatrists and to allow podiatrists to

perform procedures not previously authorized. Petitioner has an

interest in assuring that patients are treated by appropriately

trained personnel practicing within their authorized scope of

practice.

9. The proposed rule substantially affects the general

healthcare of patients in the State of Florida. This is a

concern for the physicians represented by Petitioner since these

physicians are often involved in treating patients who have been

inappropriately treated by other professionals. The proposed

rule allows podiatrists to practice beyond their areas of

training and expertise.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.56(1) and (2), 120.569, and 120.57(1),

Florida Statutes.

11. The Board has the burden of proving that its proposed

rule is not an invalid exercise of delegated legislative

authority. Section 120.56(2)(a), Florida Statutes. The Board

has failed to carry its burden.

12. The Board has rulem aking authority in certain areas

only. Section 461.005, Florida Statutes, provides as follows:

The Board of Podiatric Medicine is

authorized to make such rules not

inconsistent with law as are necessary to

carry out the duties and authority conferred

upon the board by this chapter and as may be

necessary to protect the health, safety, and

welfare of the public.

13. Nowhere in Chapter 461 or in Sections 461.003(5) or

461.005 is the Board granted the authority to define the scope

of practice of podiatric medicine nor is defining the scope of

practice of podiatric medicine a duty conferred upon the Board.

Further, the Board offered no evidence to show that the proposed

rule is necessary to protect the health, safety, and welfare of

the public; rather, the evidence is uncontroverted that the

reason for the proposed rule is to assist podiatrists in having

their bills paid by insurance carriers. Accordingly, the Board

has exceeded its grant of rulemaking authority. Section

120.52(8)(b), Florida Statutes.

14. Interestingly, the Board's position, as stated in the

Prehearing Stipulation filed in this cause, is that this rule

challenge "is a turf battle properly considered in the

legislative, not the administration [sic] arena." The Board is

correct that only the Legislature can define the scope of

practice for podiatric physicians, not the Board.

15. The Board argues a very narrow interpretation of the

standing necessary to challenge its proposed rule. The Board

argues that only podiatrists can challenge a rule of the Board

of Podiatric Medicine. Since the proposed rule authorizes an

expanded scope of practice, it is unlikely that podiatrists

would challenge it. Under the Board's narrow interpretation of

standing, its proposed rule is essentially immune from

challenge, an outcome contrary to Section 120.56, Florida

Statutes.

16. Petitioner does have standing to challenge the Board's

proposed rule. Petitioner represents physicians with an

interest in ensuring that patients are treated by appropriately

trained personnel practicing within their authorized scope of

practice. Further, Petitioner represents the interests of

physicians who were exclusively authorized to treat patients

from the knee to the hip, which the proposed rule, not the

underlying statute, would authorize podiatrists to also treat.

17. The proposed rule is an invalid exercise of delegated

legislative authority pursuant to Section 120.52(8)(e) and (f),

Florida Statutes, in that it is arbitrary and capricious and the

definitions contained therein are not supported by competent or

substantial evidence.

18. The proposed rule is also an invalid exercise of

delegated legislative authority in that it violates the

requirements of Section 120.536(1), Florida Statutes. That

Section requires that agencies only promulgate rules that

implement or interpret specific powers and duties. Section

461.003(5), Florida Statutes, does not grant the power or confer

the duty on the Board to define the term leg or the term

surgical treatment.

CONCLUSION

Bas ed upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED THAT Proposed Rule 64B18-23.001(1) and (2) is an

invalid exercise of delegated legislative authority.

DONE AND ORDERED this 30th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 1999.

COPIES FURNISHED:

Francesca Plendl, Esquire

John M. Knight, Esquire

Florida Medical Association

113 East College Avenue

Tallahassee, Florida 32301

Ann Cocheu, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Joe Baker, Jr., Executive Director

Board of Podiatric Medicine

Department of Health

BIN C07

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-3257

Angela T. Hall, Agency Clerk

Department of Health

BIN A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel

Department of Health

BIN A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Department of State

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

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 agency 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.