94-006462RP Televisual Communications, Inc. vs. Department Of Labor And Employment Security, Division Of Workers` Compensation Status: Closed DOAH Final Order on Monday, March 11, 1996.

Summary: Petitioner failed to demonstrate standing since the Statute and Rule failed to regulate or control its activities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TELEVISUAL COMMUNICATIONS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6462RP

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, DIVISION )

OF WORKERS' COMPENSATION, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by

hearing in the above-styled case on December 19, 1994, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Robert S. Cohen, Esquire

Marc W. Dunbar, Esquire

Pennington & Haben, P.A.

Post Office Box 10095

Tallahassee, Florida 32302

For Respondent: Michael G. Moore, Esquire

Department of Labor and

Employment Security

Suite 307, Hartman Building

2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

At issue in this proceeding is the validity of respondent's proposed rule 38F-53.011.

PRELIMINARY STATEMENT

This is a rule challenge brought under the provisions of Section

proposed rule 38F-53.011, which implements the Workers' Compensation

training and certification program for health care providers mandated

by Section 440.13(3), Florida Statutes.

Here, petitioner, a company that produces educational videos for home, office and self-directed study, complains that the proposed rule only allows a live seminar format, thereby excluding video

correspondence/home study courses, and is therefore an invalid

delegation of legislative authority. Specifically, by excluding video

correspondence/home study as an acceptable training and certification

program under proposed rule 38F-53.011, petitioner contends the agency

has exceeded its grant of rulemaking authority; the rule enlarges,

modifies or contravenes the specific provisions of law implemented;

and, the rule is arbitrary and capricious.1 Respondent denies

petitioner's contentions, and further asserts that petitioner lacks

standing to challenge the validity of the proposed rule.

At hearing, petitioner called, as witnesses: Gregory L. Wheat,

Mark Lettelleir, and Carra Rene Best. Petitioner's exhibits 1-7, 9B-

9M, and 13-16 were received into evidence.2 Respondent called, as

witnesses: Anna Ohlson, Sandra Ondrus, and Oregon Hunter, M.D.

Respondent's exhibits 1-4 and 6-8 were received into evidence.

The transcript of hearing was filed January 13, 1995, and the parties were granted leave until January 23, 1995, to file proposed

final orders. The parties' proposed findings of fact, contained in

their proposed final orders, are addressed in the appendix to this

final order.

FINDINGS OF FACT

The parties

1. Petitioner, Televisual Communications, Inc., is a company specializing in the production of educational and marketing programs

for health care. These programs include software, photographic,

office or self-directed study.

2. Respondent, Department of Labor and Employment Security,

Division of Workers' Compensation (Division), is the state agency

Chapter 440, Florida Statutes.

The proposed rule

3. In 1993, the Florida Legislature amended the workers' compensation law, and mandated for the first time that physicians who treat injured workers must be certified by completing a minimum five- hour course in order to receive reimbursement for rendering medical

treatment in the workers' compensation system. Section 440.13(3),

Florida Statutes (Supp. 1994).

4. Pertinent to this case, Section 440.13(3), Florida Statutes (Supp. 1994), provides:

(a) As a condition to eligibility for payment

under this chapter, a health care provider who

renders services must be a certified health

care provider and must receive authorization

from the carrier before providing treatment.

This paragraph does not apply to emergency

care. The division shall adopt rules to imple-

ment the certification of health care providers.

As a one-time prerequisite to obtaining certifi-

cation, the division shall require each physician

to demonstrate proof of completion of a minimum

5-hour course that covers the subject areas of

cost containment, utilization control, ergonomics,

and the practice parameters adopted by the division

governing the physician's field of practice.

The division shall coordinate with the Agency for

Health Care Administration, the Florida Medical

Association, the Florida Osteopathic Medical

Association, the Florida Chiropractic Association,

the Florida Podiatric Medical Association, the

Florida Optometric Association, the Florida Dental

Association, and other health professional

organizations and their respective boards as

deemed necessary by the Agency for Health Care

Administration in complying with this subsection.

No later than October 1, 1994, the division shall

adopt rules regarding the criteria and procedures

for approval of courses and the filing of proof

of completion by the physicians. (Emphasis added)

5. Also pertinent to this case is the Division's general

rulemaking authority, codified at Section 440.591, Florida Statutes,

which provides:

The division shall have the authority to adopt

rules to govern the performance of any programs,

duties, or responsibilities with which it is

charged under this chapter.

6. On October 28, 1994, consistent with the legislative mandate and under the rulemaking authority delegated to it by Sections

inter alia, of proposed rule 38F-53.011, in Volume 20, Number 43, of

the Florida Administrative Weekly. That rule established the

procedures and criteria for the approval of the minimum five-hour

training course required for physician certification and, pertinent to

this case, provided:

(7) In order for a certification training course

to be approved, the following shall be submitted

to the Division as part of the proposed training

course:

* * *

(b) Syllabus and outline of course content

including time frames for each component and

schedules for any breaks or meals included in

the presentation. If audio-visual materials are

to be utilized, a qualified and approved instructor

must be present, during the audio-visual presenta-

tion, to answer questions on the subject matter

presented.

The rule challenge

7. On November 18, 1994, petitioner filed a timely petition for

an administrative determination of the invalidity of proposed rule 38F-

proposed rule 38F-53.011 regarding the procedures and criteria for the

implementation or approval of the minimum five-hour training course

required for physician certification except the provisions of

subparagraph (7)(b) which, by implication, mandate a live seminar

format and exclude video correspondence/home study as an acceptable

training and certification program.

8. Notably, neither the petition nor proof offered at hearing

contests the reasonableness of the rule's requirement that a

"[s]yllabus and outline of course content including time frames for

each component and schedules for any breaks or meals included in the

materials are to be utilized [at a seminar], a qualified and approved

instructor must be present, during the audio-visual presentation, to

answer questions on the subject matter presented." Rather,

petitioner's complaint is that the rule does not go far enough in that

it does not include, as an alternative to the live presentation

contemplated by the rule, provision for audio visual home study. Such

omission, viewed in conjunction with the provisions of section

will be delivered, is the essence of petitioner's contention that the

proposed rule is invalid.

Standing

9. Petitioner, as a producer of educational videos for home or self-directed study, contends that it has standing to challenge the proposed rule because, as written, it will be precluded from producing and marketing a home study course for the physician certification

program and, consequently, that it will fail to realize profits from

the sale of videos that it might, if the rule allowed home study,

otherwise garner. Respondent contests petitioner's standing to

maintain this rule challenge proceeding.

10. Pertinent to the issue of standing, it is observed that the proof demonstrates that petitioner is a producer of educational videos for home study, and that it is not a health care provider or a

to be regulated or controled under chapter 440 or the proposed rule.

as of the date of hearing it had spent "somewhere around $75,000 . . .

we are at this point" and that "if [it was] able to successfully sell

[its] program to ten percent or less of the market that exists in

Florida right now, that [it could double its existing annual sales of

$650,000]." [Tr. pp. 25 and 26] Notably, while petitioner may have

expended "around $75,000" in salaries, travel and other expenses

to persuade the Division to include video home study as an approved

method for physicians to attain certification, and that it is doubtful

petitioner would undertake such expense unless it anticipated that

devoid of any competent proof to demonstrate, with any degree of

expected to garner or the net profit, it any, petitioner stands to

loose if it is precluded from offering home study videos. In sum, the

potential financial impact to petitioner in this case is not, based on

the proof, quantifiable and is, at best, speculative.

The merits of the rule challenge

12. Based on the foregoing findings of fact and the conclusions demonstrate its standing to maintain this rule challenge proceeding.

Accordingly, since resolution of that issue is dispositive of this

case, it is unnecessary to address the merits, if any, of petitioner's

challenge.

CONCLUSIONS OF LAW

the parties to, and the subject matter of, these proceedings. Section 120.54(4), Florida Statutes.

14. Here, since respondent has placed petitioner's standing at issue, petitioner has the burden to demonstrate, as a prerequisite to its ability to challenge the validity of the subject rule, standing. Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991).

See, Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d

878, 881 (Fla. 1st DCA 1988) (A parties' standing is independent of

their ability to prevail on the merits).

15. Pertinent to the issue of petitioner's standing to maintain

provides:

Any substantially affected person may seek

an administrative determination of the

invalidity of any proposed rule on the

ground that the proposed rule is an invalid

exercise of delegated legislative authority.

(Emphasis added)

16. To demonstrate that it is substantially affected by a proposed rule, a party must establish that, as a consequence of the proposed rule, it will suffer injury-in-fact which is of sufficient immediacy to justify a hearing, and that the injury is of the type (within the zone of interest) to be regulated or protected. See,

Friends of the Everglades, Inc. v. Board of Trustees of the Internal

Improvement Trust Fund, 595 So.2d 186 (Fla. 1st DCA 1992), Board of

DCA 1988), Florida Medical Association, Inc. v. Department of

1200 (Fla. 1st DCA 1982), and Florida Department of Offender

Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

17. The provisions of chapter 440, and more particularly section

440.13, are, inter alia, intended "to assure the quick and efficient

delivery of disability and medical benefits to an injured worker at a

reasonable cost to the employer." Section 440.015, Florida Statutes.

There is no evident intent within chapter 440, and petitioner has

control or benefit the interests of procedures of educational home

study, such as petitioner, and that such entities might be incidental

beneficiaries of legislation, such as enacted in the instant case

requiring physicians to undertake a "5-hour course" of study, does not

subject petitioner, or those similarly situated, to regulation or

control, and the fact that the proposed rule does not include

audiovisual home study as an acceptable training and certification

program does not alter such conclusion. As observed by the court in

Board of Optometry v. Florida Society of Ophthalmology, supra, at page

881, petitioner "cannot predicate standing on the notion that the

application of the challenged rule will prevent or obstruct their

practicing ophthalmic medicine" or, pertinent to this case, producing

and selling audiovisual home study courses.

18. Given the speculative nature of petitioner's prospective

existent law intended to regulate or benefit petitioner or those

similarly situated, it must be concluded that petitioner has failed to

that it lacks standing to maintain this rule challenge proceeding.

See, e.g., Florida Medical Association, Inc. v. Department of

Professional Regulation, supra, and Florida Department of Offender

Rehabilitation v. Jerry, supra.

CONCLUSION

is

proposed rule be and the same is hereby dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February 1995.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of February 1995.

ENDNOTES

rules 38F-53.001-53.011, but only included allegations directed to the

provisions of proposed rule 38F-53.011. Specifically, petitioner

contended that:

The rule [contrary to Section 440.13(3)(a), Florida Statutes (Supp. 1994)], requires the presence of a 'qualified and approved

instructor' anywhere a 'course' is conducted 'to answer questions on

the subject matter' . . . This rule does not allow an alternative

such as allowing students of a 'course' to contact a 'qualified and

their questions. Due to this requirement, the rule, without statutory

those produce (sic) by Petitioner from being certified as 'Worker's

(sic) Compensation Training Courses'. [Petition, at paragraph 7b;

emphasis in original.]

The petition further charged that such provision's failure to

allow video correspondence/home study courses was arbitrary and

capricious.

Notably, petitioner's prehearing stipulation also limits its challenge to proposed rule 38F-53.011, petitioner's opening statement was limited to proposed rule 38F-53.011, and the proof offered at

hearing, as well as petitioner's proposed final order, was only

directed to proposed rule 38F-53.011. Under such circumstances, it is

concluded that by pleading, stipulation and proof, the sole rule at

section of the proposed rule will be addressed in this final order

since they are not under challenge.

2/ The court reporter has noted in the transcript of hearing that

petitioner's exhibit 8 was received into evidence. [Tr. pages 5 and

73.] Such notation is erroneous, as the Hearing Officer sustained

respondent's objection to that exhibit. [Tr. page 73.]

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 1 and 9.

3-5. No necessary to address in light of the conclusion reached.

6-8. Addressed in paragraphs 3 and 4.

9-12. Not necessary to address in light of the conclusion

reached.

13. Addressed in paragraphs 4 and 8.

14-21. Not necessary to address in light of the conclusion reached.

22 & 23. Addressed in paragraph 6.

24. Not necessary to address in light of the conclusion reached.

25. Addressed in paragraphs 6 and 7.

26-66. Not necessary to address in light of the conclusion reached.

67-70. Addressed in paragraphs 9-11, otherwise subordinate or

contrary to the facts as found.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3. Addressed in paragraph 3.

4. Addressed in paragraph 4.

5. Addressed in paragraph 5.

6 & 7. Addressed in paragraph 6.

8-10. Not necessary to address in light of the result reached.

11. Addressed in paragraphs 9-11.

12-32. Not necessary to address in light of the result reached.

33. Addressed in paragraph 6.

COPIES FURNISHED:

Robert S. Cohen, Esquire

Marc W. Dunbar, Esquire

Pennington & Haben, P.A.

Post Office Box 10095

Tallahassee, Florida 32302

Michael G. Moore, Esquire

Department of Labor and

Employment Security

Suite 307, Hartman Building

2012 Capital Circle, S.E.

Tallahassee, Florida 32399-2189

Shirley Gooding, Secretary

Department of Labor and

Employment Security

303 Hartman Building

2012 Capital Circle, S.E.

Tallahassee, Florida 32399-2152

Edward A. Dion

General Counsel

Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle, S.E.

Tallahassee, Florida 32399-0658

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.

with the Agency Clerk Of The Division Of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with the

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.