04-004477RP 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 Friday, February 4, 2005.

Summary: Respondent`s proposed changes to proposed rules are not an invalid exercise of delegated legislative authority, and the changes to the proposed rules are not inconsistent with the conclusions of the Final Order entered in Doah Case No. 04-3172RP.

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 - 4477RP

)

DEPARTMENT OF HEALTH, DIVISION )

OF MEDICAL QUALITY ASSURANCE, )

)

Respo ndent. )

)

FINAL ORDER

Claude B. Arrington, Administrative Law Judge of the

Division of Administrative Hearings (DOAH), conducted the final

hearing in Tallahassee, Flo rida, on January 18, 2005.

APPEARANCES

For Petitioners: Paul Watson 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 ISSUES

Whether the proposed changes to proposed Rule 64B - 5.001

published in the Florida Law Weekly (FAW) on December 17, 2004,

(the proposed changes), constitute an invalid exercise of

delegated legislative authority pursuant to the provisions of

Section 120.56(1) and (2), Florida Statutes (2004). 1

Whether the proposed changes are inconsistent with the

Final Order entered in DOAH Case 04 - 3172RP on November 23, 2004.

PRELIMINARY STATEMENT

On November 23, 2004, the undersigned entered a Final Order

in DOAH Case 04 - 3172RP pertaining to Respondent’s proposed rules

64B - 5.001 and 6 4B - 5.002. The Final Order was not appealed by

either party.

In response to the Final Order entered in DOAH Case 04 -

3172RP, Respondent published notice in the FAW on December 17,

2004, that it intends to adopt the proposed changes to proposed

rule 64B - 5. 001. On December 4, 2004, Petitioners filed their

“Amended Petition for the Determination of the Invalidity of

Changed Proposed Rule” alleging that the proposed changes were

invalid exercises of delegated legislative authority in that the

proposed changes exceed Respondent’s rulemaking authority and/or

that they enlarge, modify, or contravene the specific provisions

of law implemented. Petitioners also argue that the proposed

changes to the proposed rule are inconsistent with the Final

Order entered in DO AH Case 04 - 3172RP. The Amended Petition was

assigned DOAH Case 04 - 4477RP.

Pursuant to notice, the final hearing in DOAH Case 04 -

4477RP was conducted January 18, 2005. At the final hearing the

parties offered three joint exhibits, each of which was admitt ed

into evidence. Joint Exhibit 1 is a copy of the proposed

changes to the proposed rule. Joint Exhibit 2 is a copy of the

Final Order entered in DOAH Case 04 - 3172RP. Joint Exhibit 3 is

a copy of the transcript of the final hearing conducted

October 11, 2004, in DOAH Case 04 - 3172RP.

At the hearing conducted January 18, 2005, the parties made

oral presentations in support of their respective positions, but

presented no witnesses and no exhibits other than the three

joint exhibits. No transcript of the hearing conducted

January 18, 2005, has been filed. The parties waived the right

to submit proposed final orders.

FINDINGS OF FACT

FINDINGS OF FACT; DOAH CASE 04 - 3172RP

The following findings of facts set forth in the Final

Order entered by the undersigne d on November 23, 2004, in DOAH

Case 04 - 3172RP are readopted.

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

pre sents five three - day conventions annually in various sections

of the state for chiropractic physicians who may take and

receive continuing education credit for the hours of instruction

that are presented at the conventions. Continuing education

programs t hat qualify for continuing education credit are

determined by the Board of Chiropractic Medicine pursuant to

Sections 456.013(6) and 460.408, Florida Statutes, and Florida

Administrative Code Rule 64B2 - 13.004.

2. There is no specific statute requiring t hat a

continuing education provider for licensees of the Board of

Chiropractic Medicine 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

stat utory requirement, at all times relevant to this proceeding

FCA had applied to and had received from the Board of

Chiropractic Medicine approval to serve as a continuing

education provider.

3. FCA has standing to bring this Petition.

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

Holistic Healthcare Consultants, Inc. (Holistic Healthcare),

presents continuing education courses to licensed massage

therapists, which courses are approved by the Board of Massage

Therapy pursuant to Section 480.0415, F lorida 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, at 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 FAW,

Volume 30, Number 30 on July 23, 2004. Petitioners’ challenge

is limited to the proposed definition of “approv ed provider.”

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

provider.” Proposed 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

institut ion of higher learning or school

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. (Emp hasis added.)

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

providers” to submit to the 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 cr edits for each licensee. The parties stipulated

that the ease or difficulty that Petitioners may experience in

complying with continuing education tracking requirements has no

bearing on the validity or invalidity of the proposed rules.

10. Each propos ed rule cites as its “specific authority”

Sections 456.004(5) and 456.025(7), Florida Statutes, 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 r esponsibilities on the Department of Health

including subsection (5), which provides as follows:

The department, for the professions under

its jurisdiction, shall:

* * *

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

and 120.54 to implement the prov isions 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 elect ronic 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 necessa ry 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 follo ws:

(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.

. . .

FINDINGS OF FACT; DOAH CASE 04 - 4477RP

14. The Final Order entered in DOAH Case 04 - 3172RP ordered

the following:

1. The following portion of the

definition of “an approved provider” set

forth in the proposed rule 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 by a

board, or the department when there is no

board.”

2. Petitioners’ remaining challenges are

dismissed.

15. Respondent caused the following “ Second Notice of

Change [sic]” pertaining to proposed rule 64B - 5.001 to be

published in the FAW, Volume 30, Number 51 on December 17, 2004:

Notice is hereby given that the following

changes have been made to the proposed rule

in accordance with subparagr aph

120.54(3)(d)1, F.S., published in Vol. 30,

No. 30, July 23, 2004, issue of the [FAW].

The changes are in response to the Final

Order issued in DOAH Case No. 04 - 3172RP on

November 23, 2004.

Section (1) of the rule shall now read as

follows:

(1) “ Approved provider” means a person

approved by the board, or the department

when there is no board, to provide

continuing education or whose continuing

education program has been approved by a

board, or the department when there is no

board.

“Approved pro vider” also means an

institution of higher learning or a school

approved by a board, or the department when

there is no board, to provide continuing

education or whose continuing education

program has been approved by a board, or the

department when there is no board.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.56, Fla. Stat.

17. 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 auth ority

as to the objections raised.

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

proposed rule is not presumed to be valid or invalid.

19. The standard of proof is a preponderance of the

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

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

exercise of delegated legislative authority" to mean:

. . . action which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an inva lid exercise of delegated legislative

authority if any one of the following

applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

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

(c) The rule enlarges, modifies, or

co ntravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)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 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 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 construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

21. The final paragraph of Sectio n 120.52(8), Florida

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

of the statute.

22. Section 120.536(1), Florida Statutes, states 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 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 implement

statutory provisions setting forth general

legislat ive 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

interpreting the specific powers and duties

conferred by the same statute.

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

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

the Court observed:

[I]n reviewing for the specific authority

for a rule, the issue is not whether the

grant of autho rity is “specific enough,” but

whether the enabling statute grants

legislative authority for the rule at issue:

It follows that the authority for 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

rule at issue or it does not.

24. The Final Order in DOAH Case 04 - 3172RP and this Final

Order recognize the di stinction between a provider “whose

programs are required to be approved by a board or the

department when there is no board” and a provider “whose

continuing education program has been approved by a board, or

the department when there is no board.” 2 As r eflected by the

Final Order in DOAH Case 04 - 3172RP, there is no statutory

authority to regulate continuing education providers merely

because their programs will have to be approved by a board or

the department. A continuing education provider who has

sub mitted a program for approval and has received that approval

is in a different status. The provisions of Sections 456.025(7)

and 456.013(9), Florida Statutes, provide the Department

sufficient 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. Once the provider has applied for and received

approval for its program, it has become an approved provider and

it is subject to the conti nuing education reporting requirements

adopted by Respondent as mandated by the provisions of Chapter

456, Florida Statutes, set forth above.

25. At the Final Hearing, counsel for Petitioners argued

that the Final Order entered in DOAH Case 04 - 3172RP cont ained

inconsistencies. After carefully reviewing the Final Order and

considering counsel’s argument, it is concluded that the Final

Order contains no inconsistency and that it is unnecessary to

amend or clarify that Final Order. The undersigned also reje cts

as being without merit the argument by counsel for Petitioners

that the proposed changes to the proposed rule at issue in DOAH

Case 04 - 4477RP are inconsistent with the Final Order entered in

DOAH Case 04 - 3172RP.

FINAL ORDER

Based on the foregoing find ings and conclusions, it is

ORDERED that Petitioners’ challenges to the proposed changes to

the proposed rule are dismissed.

DONE AND ORDERED this 4th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

CLAUD E B. ARRINGTON

Administrative 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 4th day of February, 2005.

ENDNOTES

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

2/ See , paragraph 23 of the Final Order entered in DOAH Case 04 -

3172RP.

COPIES FURNISHED :

Donna Erlich, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Michael Flury, Esquire

Office of the Attorney General

Board of Massage

The Capitol, Plaza 01

Tallahassee, Florida 32399 - 1050

Paul Watson Lambert, Esquire

Lamb ert Law Firm

1026 East Park Avenue

Tallahassee, Florida 32301 - 2673

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Gary L. Asbell, Esquire

Office of the Attorney General

Suite PL - 01, The Capitol

Tallahassee, Florida 32399

Scott Boyd

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliott Building

Tallahassee, Florida 32399 - 0250

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Joe Baker, Jr., Executive Director

Board of Chiropractic Medicine

Department of He alth

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin AOO

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affecte d 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 th e agency 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 rendition of the order to

be reviewed.