04-003172RP Florida Chiropractic Association, Inc., And Marc H. Kalmanson, D/B/A Holistic Healthcare Consultants, Inc. vs. Department Of Health, Division Of Medical Quality Assurance Status: Closed DOAH Final Order on Tuesday, November 23, 2004.

Summary: The proposed definition of the term "approved provider" cannot include all providers whose continuing education programs are merely subject to being approved, as opposed to having been approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CHIROPRACTIC )

ASSOCIATION, INC., AND MARC H. )

KALMANSON, d/b/a HOLISTIC )

HEALTHCARE CONSULTANTS, INC., )

)

Petitioners, )

)

vs. ) Case No. 04 - 3172RP

)

DEPARTMENT OF HEALTH, DIVISION )

OF MEDICAL QUALITY ASSURANCE, )

)

Resp ondent. )

)

FINAL ORDER

Claude B. Arrington, Administrative Law Judge of the

Division of Administrative Hearings, conducted the final hearing

in Tallahassee, Flo rida, on October 11, 2004.

APPEARANCES

For Petitioner: Paul W. Lambert, Esquire

Lambert Law Firm

1026 East Park Avenue

Tallahassee, Florida 32301 - 2673

For Respondent: Donna Erli ch, Esquire

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

Whether the definition for the term “approved provide r” in

proposed rules 64B - 5.001 and 64B - 5.002 constitutes an invalid

exercise of delegated legislative authority pursuant to the

provisions of Section 120.56(1) and (2), Florida Statutes

(2004). 1

PRELIMINARY STATEMENT

Petitioners filed the subject Petition for Determination of

the Invalidity of Proposed Rules with the Division of

Administrative Hearings (DOAH) on September 8, 2004, asserting

that the challenged portions of the proposed rules exceed

Respondent’s rulemaking authority and/or that they enlarge,

modify, or contravene the specific provisions of law

implemented. The matter was assigned to the undersigned

administrative law judge and duly noticed for hearing.

The pre - hearing stipulation filed by the parties

established that there are no disputed iss ues of material fact.

The findings of fact set forth in this Final Order are based on

the parties’ pre - hearing stipulation, on the exhibits that were

admitted into evidence, or on the statutes and rules officially

recognized.

At the final hearing, the parties presented argument in

support of their respective positions, but neither party offered

any testimony. One joint exhibit was admitted into evidence.

Respondent offered three exhibits. Respondent’s Exhibits 1 and

2 were admitted into evidence. R espondent’s Exhibit 3 was

rejected because it had no relevance to any issue. Petitioners

moved for the undersigned to take official recognition of

Sections 457.107, 459.008, 460.408, 461.007, 463.007, 464.013,

465.009, 466.014, 468.219, 468.514, 468.711, 478.50, 480.0415,

467.012, 468.806, 468.1195, 468.1715, 468.361, 484.008, 486.109,

468.514, 483.817, 483.821, 483.901, 484.047. 490.0085, 491.0085,

458.319, and 466.0135, Florida Statutes. Respondent moved for

the undersigned to take official recognition of Sections

456.004, 456.013, and 456.025, Florida Statutes, and Florida

Administrative Code Rules 64B - 13.004 and 64B7 - 28.010. Both

motions were granted with the caveat that the parties would have

to establish the relevance of each statute or rule.

A tran script of the hearing was filed October 27, 2004.

The parties filed Proposed Final Orders, which have been duly

considered by the undersigned in the preparation of this Final

Order.

FINDINGS OF FACT

1. Petitioner Florida Chiropractic Association, Inc. (FCA)

is a Florida not - for - profit corporation and a trade association

whose membership consists of chiropractic physicians. The FCA

presents five 3 - day conventions annually in various sections of

the state for chiropractic physicians who may take and rece ive

continuing education credit for the hours of instruction that

are presented at the conventions. Continuing education programs

that qualify for continuing education credit are determined by

the Board of Chiropractic Medicine pursuant to Sections

456.01 3(6) and 460.408, Florida Statutes, and Florida

Administrative Code Rule 64B2 - 13.004.

2. There is no specific statute requiring that a

continuing education provider for licensees of the Board of

Chiropractic Medicine apply to the Board and receive statu s as

an “approved provider” before one of its continuing education

programs will be approved. Notwithstanding the lack of that

statutory requirement, at all times relevant to this proceeding

FCA had applied to and had received from the Board of

Chiropract ic Medicine approval to serve as a continuing

education provider.

3. FCA has standing to bring this Petition.

4. Petitioner Marc Kalmanson, MSN, LMT, RYT, OM, d/b/a

Holistic Healthcare Consultants, Inc. (Holistic Healthcare),

presents continuing educ ation courses to licensed massage

therapists, which courses are approved by the Board of Massage

Therapy pursuant to Section 480.0415, Florida Statutes, and

Florida Administrative Code Rule 64B7 - 28.010.

5. There is no specific statute requiring that a

continuing education provider for licensees of the Board of

Massage apply to the Board and receive status as an “approved

provider” before one of its continuing education programs will

be approved. Notwithstanding the lack of that statutory

requirement, a t all times relevant to this proceeding Holistic

Healthcare had applied to and had received from the Board of

Massage approval to serve as a continuing education provider.

6. Holistic Healthcare has standing to bring this

Petition.

7. The proposed rules were published in the Florida

Administrative Weekly, Volume 30, Number 30 on July 23, 2004.

Petitioners’ challenge is limited to the proposed definition of

“approved provider.”

8. There is no statutory definition of the term “approved

provider.” Pr oposed Rule 64B - 5.001(1) defines the term

“approved provider” as follows:

(1) “Approved provider” means a person as

defined in s. 1.01(3), Florida Statutes,

that is required to be approved by a board,

or the department when there is no board, to

provide continuing education or whose

programs are required to be approved by a

board , or the department when there is no

board. “Approved provider” also means an

institution of higher learning or school

that is required to be approved by a board,

or the departm ent when there is no board, to

provide continuing education or whose

programs are required to be approved by a

board, or the department when there is no

board. (Emphasis added.)

9. Proposed rule 64B - 5.002 requires all “approved

providers” to submit to t he applicable board, or to the

department when there is no board, certain data so that the

board or department, as appropriate, can track the continuing

education credits for each licensee. The parties stipulated

that the ease or difficulty that Petitione rs may experience in

complying with continuing education tracking requirements has no

bearing on the validity or invalidity of the proposed rules.

10. Each proposed rule cites as its “specific authority”

Sections 456.004(5) and 456.025(7), Florida Statu tes, and cites

as the “law implemented” Sections 456.013(9) and 456.025(7),

Florida Statutes.

11. Section 456.004, Florida Statutes, confers certain

powers and responsibilities on the Department of Health

including subsection (5), which provides as fol lows:

The department, for the professions under

its jurisdiction, shall:

* * *

(5) Adopt rules pursuant to ss. 120.536 (1)

and 120.54 to implement the provisions of

this chapter.

12. Section 456.025(7), Florida Statutes, provides, in

relevant part, as follows:

(7) ... The department shall implement

an electronic continuing education tracking

system for each new biennial renewal cycle

for which electronic renewals are

implemented after the effective date of this

act and shall integrate such system into the

licensure and renewal system. All approved

continuing education providers shall provide

information on course attendance to the

department necessary to implement the

electronic tracking system. The department

shall, by rule, specify the form and

procedures by which the information is to be

submitted. (Emphasis added.)

13. Section 456.013(9), Florida Statutes, provides, in

relevant part, as follows:

(9) Any board that currently requires

continuing education for renewal of a

license, or the department if there is no

board, shall adopt rules to establish the

criteria for continuing education courses.

. . .

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of thi s

proceeding. § 120.56, Fla. Stat.

15. Section 120.56(2)(a), Florida Statutes, establishes

the burden of proof pertinent to this proceeding as follows:

. . . The petitioner has the burden of

going forward. The agency has the burden to

prove by a preponderance of the evidence

that the proposed rule is not an invalid

exercise of delegated legislative authority

as to the objections raised.

16. Pursuant to Section 120.56(2)(c), Florida Statutes, a

proposed rule is not presumed to be valid or invalid .

17. The standard of proof is a preponderance of the

evidence. See §§ 120.56(2)(a) and 120.57(1)(j), Fla. Stat.

18. Section 120.52(8), Florida Statutes, defines "invalid

exercise of delegated legislative authority" to mean:

. . . action which goes b eyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

* * *

(b) The agency has exceeded its grant of

rulema king authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.

* * *

A grant of rulemaking authori ty is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to imple ment

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

inter preting the specific powers and duties

conferred by the same statute.

19. The final paragraph of Section 120.52(8), Florida

Statutes, is frequently referred to as the “flush left” language

of the statute.

20. Section 120.536(1), Florida Statutes, stat es as

follows:

(1) A grant of rulemaking authority is

necessary but not sufficient to allow an

agency to adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers an d duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and dut ies, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be const rued to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

21. In Southwest Fla. Water Management District v. Save

the Manatee Club, Inc. , 773 So. 2d 594, 599 (Fla. 1 st DCA 2000),

the Court o bserved:

[I]n reviewing for the specific authority

for a rule, the issue is not whether the

grant of authority is “specific enough,” but

whether the enabling statute grants

legislative authority for the rule at issue:

It follows that the authority fo r an

administrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

authority for the rule, not whether the

grant of authority is specific enough.

Either the enabling statute authorizes the

rul e at issue or it does not.

22. Some boards within the Department’s supervision have

specific statutory authority to require a continuing education

provider to apply for and receive status as an “approved

provider” while other boards, including the Board of

Chiropractic Medicine and the Board of Massage, do not have such

statutory authority. The statutory authority vested in some,

but not all, boards is a sufficient basis for the Department to

adopt the portion of the proposed rules defining “approved

pro vider” to be a “... person ... that is required to be

approved by a board, or the department when there is no board

...” without violating the provisions of Section 120.52(8)(b) or

(c), Florida Statutes. Petitioners anticipate that the

Department will att empt to interpret and apply the definition in

a manner that will exceed the explicit statutory authority.

While that may turn out to be the case, it is concluded that the

cited portion of the definition, as written, does not exceed the

Department’s rulema king authority. The interpretation and

application of the rule will have to be resolved in another

proceeding.

23. It can be persuasively argued that the provisions of

Sections 456.025(7) 29 and 456.013(9), Florida Statutes, provide

the Department suffici ent statutory authority to define the term

“approved provider” to include a continuing education provider

whose program has been approved by a board or the Department, as

applicable. No such argument can be made for defining an

“approved provider” to incl ude a continuing education merely

because the provider’s program or programs will be subjected to

approval by a board or by the Department, because there is no

statutory authority for including that language in the

definition of an “approved provider." Th e statutory authority

for the Department to regulate continuing education programs

does not provide statutory authority for it to regulate

continuing education providers. A continuing education provider

to licensees whose board lacks statutory authority t o require

prior approval of such providers will not become an “approved

provider” until the provider has applied for and received

approval for its program. After its program has become

approved, the provider arguably becomes an “approved provider.”

24. The portion of the proposed rules defining the term

“approved provider” to include a person “. . . whose programs

are required to be approved by a board” exceeds Respondent's

grant of rulemaking authority within the meaning of Section

120.52(8)(b) and enl arges, modifies, or contravenes the specific

provisions of law implemented within the meaning of Section

120.52(8)(c), Florida Statutes. To infer, as Respondent

proposes, that the general rulemaking authority contained in

Section 456.004(5), Florida Statu tes, and the requirements

pertaining to continuing education credits set forth in Section

456.025(7), Florida Statutes, provide statutory authority for it

to regulate all continuing education providers would violate the

“flush left” language of Section 120 .52(8), Florida Statutes.

Compare Freiberg v. Department of Health, Board of Acupuncture ,

DOAH Case No. 03 - 2964RX (November 26, 2003).

ORDER

Based on the foregoing findings and conclusions, it is

ORDERED that:

1. The following portion of the definitio n of an “approved

provider” set forth in the challenged proposed rules is

invalidated as an invalid exercise of delegated legislative

authority: “. . . a person as defined in s. 1.01(3), Florida

Statutes, . . . whose programs are required to be approved b y a

board, or the department when there is no board.”

2. Petitioners’ remaining challenges are dismissed.

DONE AND ORDERED this 23rd day of November, 2004, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

A dministrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of November, 2004.

ENDNOTE

1/ All statutory references are to Florida Statutes (2004)

and all rule references are to the version of the rule as

published in Florida Administrative Code as of the date of this

Final Order.

COPIES FURNISHED :

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahassee, Florida 32399 - 1701

Gloria Crawford Henderson, Director

Division of Medical Quality Assurance

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Quincy Page, Acting General Counsel

Department of Health

4052 Bald Cypress Way, BIN A02

Tallahassee, Florida 32399 - 1701

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, S uite 101

Tallahassee, Florida 32399

Scott Boyd, Executive Director/General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Paul Watson Lambert, Esquire

Lambert Law Firm

1026 East Park Avenue

Tallah assee, Florida 32301 - 2673

Donna Erlich, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial revie w pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a 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 rendi tion of the order to

be reviewed.