02-000104RX Alberta Lash vs. Department Of Children And Family Services Status: Closed DOAH Final Order on Friday, April 19, 2002.

Summary: Rules 65E-5.2301 and 65E-5.170, Florida Administrative Code, are not invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERTA LASH, )

)

Petitioner, )

)

vs. ) Case No. 02 - 01 04RX

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to no tice, a final hearing was held in this case

on February 2, 2002, in Tallahassee, Florida, before Florence

Snyder Rivas, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frederick A. G oldstein, Esquire

Post Office Box 22463

Fort Lauderdale, Florida 33335 - 2463

For Respondent: John Raymaker, Esquire

Department of Children and Family Services

13 17 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Rules 65E - 5.2301(1) and (3) and 65E - 5.170, Florida

Administrative Code, constitute an invalid exercise o f delegated

legislative authority.

PRELIMINARY STATEMENT

On January 8, 2002, the Petitioner, Alberta Lash

(Petitioner or Lash), filed a Petition Pursuant to Section

120.56, F.S., Seeking the Invalidity of Rules 65E - 5.2301(1) and

(3) and 65E - 5.170, Promul gated by the Department of Children and

Families (the Petition).

The relevant facts are undisputed and are set forth here to

the extent necessary to the rendition of a Final Order. The

facts agreed to by the parties are more fully detailed in a

“Stipulat ion for Final Hearing” (Stipulation) dated January 31,

2002. The documents attached to the Petition are true and

correct copies, are admissible and admitted into evidence, and

may be relied upon by either side in these proceedings.

A one - volume transcript was filed on February 8, 2002. The

parties sought and received an enlargement of time to March 8,

2002, for the filing of proposed orders, which were timely filed

and which have been carefully considered in the preparation of

this Final Order.

FINDINGS OF FACT

1. All procedural requirements for promulgation of Rules

65E - 5.2301(1) and (3) and 65E - 5.170, Florida Administrative Code

(the challenged Rules) were properly fulfilled.

2. Lash has standing to litigate the validity of the

challenged Rules.

3. O n September 20, 2001, Lash was admitted to the Crisis

Screening and Stabilization Unit (Unit) located in Fort

Lauderdale, Florida. The Unit is authorized to receive patients

pursuant to that portion of Chapter 394.453 of the Florida

Mental Health Act, mor e popularly known as the Baker Act.

4. Following Lash’s admission to the Unit, a document

entitled Certificate of Patient’s Incapacity to Consent and

Notification of Health Care Surrogate/Proxy (Certificate) was

executed by two physicians (Two Physicians) . Pursuant to the

Certificate, the Two Physicians declared Lash incompetent to

consent to treatment and appointed a Third Party (Third Party)

to make medical decisions on her behalf, including authorizing

treatment objected to by Lash.

5. In so doing, th e parties are of the opinion that the

Two Physicians were acting pursuant to the challenged Rules.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over this proceeding and the parties thereto

pursuant to Section 120.56, Flor ida Statutes.

7. The challenged Rules are presumptively valid; it is

therefore Lash's burden to demonstrate the invalidity of the

challenged Rules. Section 120.56(3) Florida Statutes; St. Johns

River Water Management District v. Consolidated - Tomoka Land Co. ,

717 So. 2d. 72 (Fla. 1st DCA 1998), rev . den ., 727 So. 2d 904

(Fla. 1999).

8. For the reasons set forth below, the challenged Rules,

standing alone, cannot be reasonably read to authorize the

appointment of a Third Party to give consent to treatmen t to

which a patient objects under the facts and circumstances of

this case; thus Lash has not shown the challenged Rule(s) to be

an invalid exercise of delegated authority.

9. In order to adopt any administrative rule, the agency

engaged in the rulemak ing must be acting in accordance with a

grant of specific legislative authority. Southwest Fla. Water

Mgmt. Dist. v. Save the Manatee Club, Inc. , 773 So. 2d (Fla. 1st

DCA 2000); Florida Board of Medicine v. Florida Academy of

Cosmetic Surgery, Inc. , 808 S o. 2d. 243 (Fla. 1st DCA 2002).

10. The challenged Rules provide, in full, as follows:

Rule 65E - 5.2301 Health Care Surrogate or

Proxy.

(1) During the interim period between the

time a patient is determined to be

incompetent to consent to treatment by one

or more physicians, pursuant to s. 765.204,

F.S., and the time a guardian advocate is

appointed by a court to provide express and

informed consent to the patient's treatment,

a health care surrogate designated by the

patient, pursuant to chapter 765 , part II,

F.S., may provide such consent to treatment.

(2) In the absence of an advance

directive, a health care proxy, pursuant to

chapter 765, part IV, F.S., may also provide

interim consent to treatment.

(3) Upon the documented determination

that a patient is incompetent to make health

care decisions for himself or herself by one

or more physicians, pursuant to s. 765.204,

F.S., the facility shall notify the

surrogate or proxy in writing that the

conditions under which he or she can

exercise his o r her authority under the law

have occurred. Use of recommended form CF -

MH 3122, Jan. 98, "Certification of

Patient's Incompetence to Consent to

Treatment and Notification of Health Care

Surrogate/Proxy," which is incorporated by

reference as if fully set out here and may

be obtained from the district mental health

program office, will be considered by the

department to be sufficient for this

purpose.

(4) A petition for adjudication of

incompetence to consent to treatment and

appointment of a guardian a dvocate shall be

filed with the court within two court

working days of the determination of the

patient's incompetence to consent to

treatment by one or more physicians,

pursuant to s. 765.204, F.S. Use of

recommended form CF - MH 3106, "Petition for

Adjudi cation of Incompetence to Consent to

Treatment and Appointment of a Guardian

Advocate," as referenced in 65E -

5.170(1)(d)2., will be considered by the

department to be sufficient for this

purpose.

(5) The facility shall immediately

provide to the health care surrogate or

proxy the same information required by

statute to be provided to the guardian

advocate. In order to protect the safety of

the patient, the facility shall make

available to the health care surrogate or

proxy the training required of guard ian

advocates and ensure that the surrogate or

proxy communicate with the patient and

patient's physician, as defined in s.

394.455(21), F.S., prior to giving express

and informed consent to treatment.

Specific Authority 394.457(5) FS.

Law Implemented 394. 4598, 765 FS.

History -- New 11 - 29 - 98, Amended 1 - 16 - 2001.

* * *

65E - 5.170 Express and Informed Consent.

(1) Establishment of Consent.

(a) Receiving Facilities. As soon as

possible, but in no event longer than 24

hours from entering a designated re ceiving

facility on a voluntary or involuntary

basis, each patient shall be examined by the

admitting physician, as defined in s.

394.455(21), F.S., to determine the

patient's ability to provide express and

informed consent to admission and treatment.

The examination of a minor for this purpose

may be limited to the documentation of the

minor's age. The examination of a person

alleged to be incapacitated for this purpose

may be limited to the documentation of

letters of guardianship. Documentation of

this determination shall be placed in the

patient's clinical record. The facility

shall determine whether a patient has been

adjudicated as incapacitated and whether a

guardian has been appointed by the court.

If a guardian has been appointed by the

court, t he limits of the authority of the

guardian shall be determined prior to

allowing the guardian to authorize

treatment. A copy of any court order

delineating a guardian's authority to

consent to mental health or medical

treatment shall be obtained by the fa cility

and included in the patient's clinical

record prior to allowing the guardian to

give express and informed consent to

treatment for the patient.

(b) Treatment Facilities. Upon entering

a designated treatment facility on a

voluntary or involuntary basis, each patient

shall be examined by the admitting

physician, as defined in s. 394.455(21),

F.S., to determine the patient's ability to

provide express and informed consent to

admission and treatment, which shall be

documented in the patient's clinica l record.

The examination of a person alleged to be

incapacitated or incompetent to consent to

treatment, for this purpose, may be limited

to documenting the letters of guardianship

or order of the court. If a patient has

been adjudicated as incapacitate d and a

guardian appointed by the court or if a

patient has been found to be incompetent to

consent to treatment and a guardian advocate

has been appointed by the court, the limits

of authority of the guardian or guardian

advocate shall be determined prior to

allowing the guardian or guardian advocate

to authorize treatment for the patient. A

copy of any court order delineating a

guardian's authority to consent to mental

health or medical treatment shall be

obtained by the facility and included in the

pati ent's clinical record prior to allowing

the guardian to give express and informed

consent to treatment for the patient.

(c) If the admission is voluntary, the

patient's competence to provide express and

informed consent for admission shall be

documented by the admitting physician, as

defined in s. 394.455(21), F.S. Use of

recommended form CF - MH 3104, Jan. 98,

"Certification of Patient's Competence to

Provide Express and Informed Consent," which

is incorporated by reference as if fully set

out here and m ay be obtained from the

district mental health program office, will

be considered by the department to be

sufficient. The completed form or other

documentation shall be retained in the

patient's clinical record. Facility staff

monitoring the patient's co ndition shall

document any observations which suggest that

a patient may no longer be competent to

provide express and informed consent to his

or her treatment. In such circumstances,

staff shall notify the physician, as defined

in s. 394.455(21), F.S., a nd document in the

patient's clinical record that the

physician, as defined in s. 394.455(21),

F.S., was notified of this apparent change

in clinical condition.

(d) In the event a change in a voluntary

patient's clinical status affects the

patient's com petence to provide express and

informed consent to treatment, the change

shall be immediately documented in the

patient's clinical record. A person's

refusal to consent to treatment is not, in

itself, an indication of incompetence to

consent to treatment.

1. If the patient is determined to be

competent to consent to treatment and meets

the criteria for involuntary placement, the

facility administrator shall file with the

court a petition for involuntary placement.

Use of recommended form CF - MH 3032, Ja n. 98,

"Petition for Involuntary Placement," which

is incorporated by reference as if fully set

out here and may be obtained from the

district mental health program office, will

be considered by the department to be

sufficient.

2. If the patient is inco mpetent to

consent to treatment, and meets the criteria

for involuntary placement, the facility

administrator shall expeditiously file with

the court both a petition for the

adjudication of incompetence to consent to

treatment and appointment of a guardian

advocate, and a petition for involuntary

placement. Upon determination that a

patient is incompetent to consent to

treatment the facility shall expeditiously

pursue the appointment of a duly authorized

substitute decision - maker that can make

legally requ ired decisions concerning

treatment options or refusal of treatments

for the patient. Use of recommended forms

CF - MH 3106, Jan. 98, "Petition for

Adjudication of Incompetence to Consent to

Treatment and Appointment of a Guardian

Advocate," which is incorp orated by

reference as if fully set out here and may

be obtained from the district mental health

program office, and CF - MH 3032, "Petition

for Involuntary Placement," as referenced in

65E - 5.170(1)(d)1., will be considered by the

department to be sufficient .

(e) Competence to provide express and

informed consent shall be established and

documented in the patient's clinical record

prior to the approval of a patient's

transfer from involuntary to voluntary

status or prior to permitting a patient to

consent to his or her own treatment if that

patient had been previously determined to be

incompetent to consent to treatment. Use of

recommended form CF - MH 3104, "Certification

of Patient's Competence to Provide Express

and Informed Consent," as referenced in 65E -

5.170(1)(c), properly completed by a

physician, as defined in s. 394.455(21),

F.S., will be considered by the department

to be sufficient.

(f) Any guardian advocate appointed by a

court to provide express and informed

consent to treatment for the patie nt shall

be discharged and a notice of such guardian

advocate discharge provided to the court

upon the establishment and documentation

that the patient is competent to provide

express and informed consent.

(g) If a patient entering a designated

receivin g or treatment facility has been

adjudicated incapacitated under chapter 744,

F.S., as described in s. 394.455(14), F.S.,

express and informed consent to treatment

shall be sought from the patient's guardian.

(h) If a patient entering a designated

recei ving or treatment facility has been

determined by the attending physician and

another physician, as defined in s.

394.455(21), F.S., to be incompetent to

consent to treatment as defined in s.

394.455(15), F.S., express and informed

consent to treatment sha ll be expeditiously

sought by the facility from the patient's

guardian advocate or health care surrogate

or proxy.

(i) A copy of the letter of guardianship,

court order, or advance directive shall be

reviewed by facility staff to ensure that

the substit ute decision - maker has the

authority to provide consent to the

recommended treatment on behalf of the

patient. If the facility relies upon the

expression of express and informed consent

for patient treatment from a substitute

decision - maker, a copy of thi s documentation

shall be placed in the patient's clinical

record and shall serve as documentation of

the substitute decision - maker's authority to

give such consent. With respect to a health

care proxy, where no advance directive has

been prepared by the p atient, facility staff

shall document in the patient's clinical

record that the substituted decision - maker

was selected in accordance with the list of

persons and using the priority set out in s.

765.401, F.S. When a health care surrogate

or proxy is used , the facility shall

immediately petition for the appointment of

a guardian advocate.

(2) Authorization for Treatment.

(a) Express and informed consent,

including the right to ask questions about

the proposed treatment, to receive complete

and accura te answers to those questions, and

to negotiate treatment options, shall be

obtained from a patient who is competent to

consent to treatment. If the patient is

incompetent to consent to treatment, such

express and informed consent shall be

obtained from t he duly authorized substitute

decision - maker for the patient before any

treatment is rendered, except where

emergency treatment is ordered by a

physician, as defined in s. 394.455(21),

F.S., for the safety of the patient or

others.

(b) A copy of informa tion disclosed while

attempting to obtain express and informed

consent shall be given to the patient and to

any substitute decision - maker authorized to

act on behalf of the patient.

(c) When presented with an event or an

alternative which requires expre ss and

informed consent, the competent patient or,

if the patient is incompetent to consent to

treatment, the duly authorized substitute

decision - maker, shall provide consent to

treatment, refuse consent to treatment,

negotiate treatment alternatives, or r evoke

consent to treatment. Use of recommended

forms CF - MH 3042a, Jan. 98, "General

Authorization for Treatment Except

Psychotropic Medications," which is

incorporated by reference as if fully set

out here and may be obtained from the

district mental heal th program office, and

CF - MH 3042b, Jan. 98, "Specific

Authorization for Psychotropic Medications,"

which is incorporated by reference as if

fully set out here and may be obtained from

the district mental health program office,

will be considered by the de partment to be

sufficient as documentation of express and

informed consent and any decisions made

pursuant to that consent. If used,

recommended form CF - MH 3042a, "General

Authorization for Treatment Except

Psychotropic Medications," as referenced in

65E - 5.170(2)(c), shall be completed at the

time of admission to permit routine medical

care, psychiatric assessment, and other

assessment and treatment except psychotropic

medications. The more specific recommended

form CF - MH 3042b, "Specific Authorization

fo r Psychotropic Medications," as referenced

in 65E - 5.170(2)(c), or its equivalent, shall

be completed prior to the administration of

any psychotropic medications, except under

an emergency treatment order. The completed

forms, or equivalent documentation, shall be

retained in the patient's clinical record.

(d) No facility shall initiate any mental

health treatment, including psychotropic

medication, until express and informed

consent for psychiatric treatment is

obtained from a person legally qualified t o

give it, except in cases where emergency

treatment is ordered by a physician, as

defined in s. 394.455(21), F.S., to preserve

the immediate safety of the patient or

others.

(3) Receiving and treatment facilities

shall request copies of any advance

dir ectives completed by persons admitted to

the facilities, from the patient or the

patient's family or representative.

(4) In addition to any other

requirements, at least the following must be

given to the patient before express and

informed consent will be valid:

(a) Identification of the proposed

medication, together with a plain language

explanation of the proposed dosage range,

the frequency and method of administration,

the recognized short - term and long - term side

effects, any contraindications whi ch may

exist, clinically significant interactive

effects with other medications, and similar

information on alternative medications which

may have less severe or serious side

effects.

(b) A plain language explanation of all

other treatments or treatment alternatives

recommended for the patient.

(5) If a change in medication is

recommended which is not included in the

previously signed CF - MH 3042b, "Specific

Authorization for Psychotropic Medications"

form, as referenced in 65E - 5.170(2)(c),

after an ex planation and disclosure of the

altered treatment plan is provided by the

physician, as defined in s. 394.455(21),

F.S., express and informed consent must be

obtained from the person authorized to

provide consent and be documented in the

patient's clinical record prior to the

administration of the treatment or

medication.

(6) The facility staff shall explain to a

guardian, guardian advocate, or health care

surrogate or proxy, the duty of the

substitute decision - maker to provide

information to the facilit y on how the

substitute decision - maker may be reached at

any time during the patient's

hospitalization to provide express and

informed consent for clinically significant

changes of treatment.

(7) To assure the safety and rights of

the patient, electroco nvulsive treatment may

be recommended to the patient or the

patient's substitute decision - maker by the

attending physician, as defined in s.

394.455(21), F.S., if concurrently

recommended by at least one other physician,

as defined in s. 394.455(21), F.S., not

directly involved with the patient's care

who has reviewed the patient's clinical

record. Such recommendation shall be

documented in the patient's clinical record

and shall be signed by both physicians, as

defined in s. 394.455(21), F.S. When

comple ted, recommended form CF - MH 3057,

Jan. 98, "Authorization for

Electroconvulsive Treatment," which is

incorporated by reference as if fully set

out here and may be obtained from the

district mental health program office, will

be considered by the department to be

sufficient. If used, this form shall also

be signed by the patient, if competent, or

by the guardian advocate, if previous court

approval has been given, or by the guardian

where the patient has been found by the

court to be incapacitated, or by th e health

care surrogate if the patient had expressly

delegated such authority to the surrogate in

the advance directive. Express and informed

consent from the patient or his or her

substitute decision - maker, as required by s.

394.459(3), F.S., including a n opportunity

to ask questions and receive answers about

the procedure, shall be noted on or attached

to recommended form CF - MH 3057,

"Authorization for Electroconvulsive

Treatment," as referenced in 65E - 5.170(7),

or its equivalent, as documentation of the

required disclosures and of the consent.

Each signed authorization form is permission

for the patient to receive a series of up

to, but not more than, a stated number of

electroconvulsive treatments. Additional

electroconvulsive treatments require

addit ional written authorization. The

signed authorization form shall be retained

in the patient's clinical record and shall

comply with the provisions of s. 458.325,

F.S.

Specific Authority 394.457(5) FS.

Law Implemented 394.455(5), 394.459(3) FS.

History -- Ne w 11 - 29 - 98.

11. Lash has alleged that the challenged Rules are not

supported by the specific legislative authority cited by the

Department. Section 120.52(8)(b), Florida Statutes. In

particular, Lash has argued that the legislative authority

relied upo n by the Department does not authorize the appointment

by the Two Physicians of a Third Party to make medical decisions

on behalf of an individual such as Lash who was involuntarily

committed to a Baker Act facility, in this instance, the Unit.

12. The sp ecific legislative authority cited for both of

the challenged Rules, Section 394.457(5), Florida Statutes,

states:

(5) Rules. —

(a) The department shall adopt rules

establishing forms and procedures relating

to the rights and privileges of patients

seek ing mental health treatment from

facilities under this part.

(b) The department shall adopt rules

necessary for the implementation and

administration of the provisions of this

part, and a program subject to the

provisions of this part shall not be

permi tted to operate unless rules designed

to ensure the protection of the health

safety, and welfare of the patients treated

through such program have been adopted.

13. Thus, this section provides the Department with

general authority to adopt rules necessar y to carry out the

Baker Act program.

14. The Department also relies generally upon Chapter 765,

Florida Statutes, Parts I - IV and 765.204(2), Florida Statutes,

in particular, as one of the laws implemented in Rule 65E -

5.2301, Florida Administrative Code.

15. Chapter 765, Florida Statutes, is titled “Health Care

Advance Directives.” The statute’s extensive statement of

legislative findings and intent, and the statute read as a

whole, demonstrate that this law is exclusively concerned with

the fundamental right of self - determination a civilized society

affords every competent adult in circumstances when s/he is

faced with the complex health care decisions which often

accompany an individual’s final illness.

16. Chapter 765, Florida Statutes, is a legislati ve

response to the complex medical, moral, and ethical choices

which arise in our technologically advanced society when old

age, serious illness, or sudden injury impose cruel burdens upon

individuals and their loved ones.

17. Specifically, the portion of Chapter 765, Florida

Statutes, relied upon by the Department, protects the

“fundamental right of self - determination regarding decisions

pertaining to [the rights of competent adults to make informed

decisions regarding] his or her own health, including th e right

to choose or refuse medical treatment. . . .” Section

765.102(1), Florida Statutes (2001).

18. The balance of this Section occupies nearly a full

page of legislative findings and intent. Read as a whole, it

plainly does not address the circums tances under which an

incompetent individual may be involuntarily treated.

19. Section 765.204(2), Florida Statutes, which was

heavily debated by the parties, provides:

(2) If a principal's capacity to make

health care decisions for herself or himself

or provide informed consent is in question,

the attending physician shall evaluate the

principal's capacity and, if the physician

concludes that the principal lacks capacity,

enter that evaluation in the principal's

medical record. If the attending physic ian

has a question as to whether the principal

lacks capacity, another physician shall also

evaluate the principal's capacity, and if

the second physician agrees that the

principal lacks the capacity to make health

care decisions or provide informed consen t,

the health care facility shall enter both

physician's evaluations in the principal's

medical record. If the principal has

designated a health care surrogate or has

delegated authority to make health care

decisions to an attorney in fact under a

durable power of attorney, the facility

shall notify such surrogate or attorney in

fact in writing that her or his authority

under the instrument has commenced, as

provided in chapter 709 or s. 765.203.

20. The undersigned rejects the parties' view that either

or both of the challenged Rules confer expansive powers to

authorize involuntary treatment. Instead, the challenged Rules,

reasonably read and appropriately applied, merely restate the

legislative mandate that under the Health Care Advance

Directives law, in the interim period of time between a

determination of incompetence to consent to treatment and the

time a court - appointed guardian advocate is in place to provide

express and informed consent to treatment, consent may be

provided by a health care surro gate who has been previously

designated by the patient pursuant to the provisions of

Chapter 765, Part II, Florida Statutes, if such an individual

exists.

21. In other words, Lash and others similarly situated

have a right to have their choice of a Chapte r 765, Florida

Statutes, health care surrogate honored in a Baker Act facility

(if, in fact, they have made such a choice) during the window of

time between when the individual is declared incompetent and

such time as a guardian advocate is appointed by a court of

competent jurisdiction to provide express and informed consent

to such treatment. The challenged Rules, neither singly nor in

combination, create, modify, or restrict the statutory rights of

any individual and Lash has failed to carry her burden to show

that the challenged Rules, as properly interpreted and properly

applied, are not supported by the specific legislative authority

relied upon by the Department.

22. The parties have agreed that Lash and others have been

or may be in the future invo luntarily medicated by individuals

who believe they are acting under the authority of the

challenged Rules. As noted above, these Rules, given their

plain meaning, do not authorize the Two Physicians to appoint a

Third Party to give consent to medical tre atment objected to by

the patient.

23. If the challenged Rules are being applied in a manner

inconsistent with their plain meaning, this is not a matter

which may be properly addressed by an administrative law judge.

It is beyond the authority of this fo rum to address an incorrect

agency interpretation of a rule which is valid on its face.

24. The Department expansively argued that Chapter 765

and Chapter 394, taken together, “confer upon the Department

broad, unqualified authority to adopt rules e stablishing forms

and procedures relating to the rights and privileges of patients

seeking mental health treatment from facilities under the Baker

Act that ensure the protection of the health safety." This

argument goes far beyond the issues presented in this case.

25. As the Department more narrowly stipulated at the

final hearing, there is one undeniable relationship between

Chapter 765 and Chapter 394, Florida Statutes. It is this: if

an individual such as Lash is in confinement in a Baker Act

facility such as the Unit, any and all advance directives which

comply with the requirements of Chapter 765, Florida Statutes,

must be honored by the Baker Act facility. If the Baker Act

facility is unwilling to honor the person's advance directives,

if any there be, the facility is required to transfer the

patient to a facility that will honor h/er advance directives.

Section 765.1105(1), Florida Statutes.

26. As a matter of law and logic, this is the only

relationship between the two statutes relied u pon by the

Department in support of the challenged Rules, and it is

sufficient to sustain the validity of the challenged Rules.

27. Other legal issues relative to the challenged Rules

were debated by the parties. For example, Lash argued that the

challen ged Rules unconstitutionally infringe upon her rights

under Article V Section 20(c)(3) of the Florida Constitution.

28. In response, the Department argued that the

undersigned can decide this case in Lash’s favor if and only if

"this [Administrative Law ] Court . . . find[s] that Section

765.101 to 765.404, Florida Statutes, et seq ., are

unconstitutional."

29. In support of this argument, the Department correctly

asserts that the constitutionality of a statute is not within

the jurisdiction of this foru m. Key Haven Associated

Enterprises, Inc. v. Board of Trustees of the Internal

Improvement Trust Fund , 427 So. 2d 153 (Fla. 1982).

30. However, the record does not support the legal

inference that the Department seeks to draw from that black

letter law, i.e. that Lash’s petition must be dismissed because

a decision in her favor cannot be rendered absent a finding that

portions of Chapter 765 of the Florida Statutes are

unconstitutional.

31. The undersigned must and does decline Lash’s

invitation to consi der and render conclusions of law regarding

the constitutionality of the challenged Rules. It is neither

appropriate to do so, nor necessary to the disposition of this

case.

CONCLUSION

Based upon the foregoing, it is ORDERED that the challenged

Rules do n ot constitute an invalid exercise of delegated

legislative authority.

DONE AND ORDERED this 19th day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Admini strative 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 19th day o f April, 2002.

COPIES FURNISHED:

Frederick A. Goldstein, Esquire

Post Office Box 22463

Fort Lauderdale, Florida 33335 - 2463

John Raymaker, Esquire

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Fl orida 32399 - 0700

Peggy Sanford, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josefina Tamayo, General Counsel

Department of Children and

Family Services

1317 W inewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDI CIAL 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 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 Appellat e District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.