05-004350RP Hanger Prosthetics And Orthotics, Inc.; And Hugh J. Panton vs. Department Of Health, Board Of Orthotists And Prosthetists Status: Closed DOAH Final Order on Thursday, March 9, 2006.

Summary: The proposed rule defining "direct supervision" is not an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HANGER PROSTHETICS AND )

ORTHOTICS, INC. AND HUGH J. )

PANTON, )

)

Petitioners, )

)

vs. ) Case No. 05 - 4350RP

)

DEPARTMENT OF HEALTH, BOARD OF )

ORTHOTISTS AND PROSTHETISTS, )

)

Respondent. )

)

SUMMARY FINAL ORDER

This cause came on for consideration before Suzanne F.

Hood, Administrative Law Judge with the Division of

Administrative Hearings, for disposition through summary final

proceedings pursuant to Sections 120.56(1), 120.56(2), and

120.57(1)(h), Florida Statutes (2005).

APPEARANCES

For Petitioner: Nate Wesley Strickland, Esquire

Foley & Lardner, LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 32301

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATE MENT OF THE ISSUES

The issues are as follows: (a) whether a proposed

amendment to Florida Administrative Code Rule 64B14 - 3.001(12)

constitutes an invalid exercise of delegated legislative

authority in violation of Sections 120.52(8)(b) and/or

120.52(8)(c ), Florida Statutes (2005); and (b) whether

Petitioners are entitled to attorneys' fees pursuant to Section

120.595(2), Florida Statutes (2005).

PRELIMINARY STATEMENT

On November 28, 2005, Petitioners Hanger Prosthetics and

Orthotics, Inc. and Hugh J. Pan ton (Petitioners) filed a

Petition to Determine the Invalidity of a Proposed Rule with

Respondent Department of Health, Board of Orthotists and

Prosthetists (Respondent). Petitioners challenge whether a

proposed amendment to Florida Administrative Code Ru le 64B14 -

3.001(12) is invalid because Respondent has exceeded its grant

of rulemaking authority contrary to Section 120.52(8)(b),

Florida Statutes (2005), and/or because the proposed amendment

enlarges, modifies, or contravenes the specific provisions of

l aw implemented contrary to Section 120.52(8)(c), Florida

Statutes (2005).

On November 29, 2005, the Division of Administrative

Hearings issued an Order of Assignment. In a Notice of Hearing

dated December 1, 2005, the undersigned scheduled the hearing

for December 28, 2005.

On December 22, 2005, Petitioners filed an unopposed Motion

for Continuance of Final Hearing. On December 23, 2005, the

undersigned issued an Order Granting Continuance and

Rescheduling Hearing for January 31, 2005.

On January 2 6, 2006, the parties filed a Joint Motion to

Submit Matter for Summary Final Proceedings in Lieu of a Final

Hearing. On January 27, 2006, the undersigned issued an Order

Canceling Hearing and Granting Joint Motion for Summary Final

Proceedings. In accord ance with the January 27, 2006, order,

the parties filed a Joint Stipulation of Facts on February 15,

2006, and their Proposed Final Orders on March 3, 2006.

All citations hereinafter shall be to Florida Statutes

(2005) unless otherwise specified.

FIN DINGS OF FACT

1. This matter arises from Respondent's proposed amendment

(the proposed rule) to Florida Administrative Code Rule 64B14 -

3.001(12), which defines the term "direct supervision" for

purposes of Part XIV, Chapter 468, Florida Statutes (the O&P

practice act.)

2. Respondent advertised the text of the proposed rule in

Volume 31, Number 35, September 2, 2005, of the Florida

Administrative Weekly . The proposed rule states as follows in

relevant part:

(12) Direct Supervision means :

superv ision while the qualified supervisor

is on the premises.

(a) The licensed orthotist,

prosthetist, orthotist/prosthetist, or

pedorthist will provide a physical

evaluation of each patient's orthotic and or

prosthetic needs and may delegate

appropriate duties to support personnel.

However, the licensed practitioner shall

physically evaluate the effectiveness,

appropriateness and fit of all devices

within the scope of the licensed

practitioner's licensure practice

requirements, including those repaired

devices in which the repairs affect the fit,

physical structure or biomechanical function

of the device, on every patient, prior to

patient use of the device;

(b) For the purpose of replacement of

worn or broken components which do not in

any way alter the fit, physical structure or

biomechanical functioning of the existing

device, direct supervision of support

personnel providing repairs to orthoses or

prostheses means the aforementioned repair

must be approved by the appropriately

licensed practi tioner prior to beginning of

repairs. The responsible licensed

practitioner must at all times be accessible

by two way communication, enabling the

supervisor to respond to questions relating

to the repair.

* * *

Specific Authority 468.802, F.S. Law

Imp lemented 468.802, 468.803, 468.807,

468.808, 468.809, F.S. History -- New 10 - 21 -

99, Amended 2 - 19 - 04, 5 - 5 - 04.

3. Respondent conducted a final public hearing regarding

the proposed rule on November 18, 2005.

4. Petitioners filed a petition challenging the proposed

rule within 10 days after the final public hearing.

5. Petitioners would be substantially affected by the

proposed rule.

6. The parties stipulate to the citation of official

notices and other matters published in Florida Administrative

Weekly .

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.56, Florida Statutes.

8. Regarding the burden of proof, Section 120.56(2)(a),

Florida S tatutes, states as follows in pertinent part:

. . . The petitioner has the burden of going

forward. The agency then has the burden to

prove by a preponderance of the evidence

that the proposed rule is not an invalid

exercise of delegated legislative autho rity

as to the objections raised.

9. Section 120.52(8), Florida Statutes, states as follows

in relevant part:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is invalid

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

contravenes 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

legislati ve intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and function

of an agency shall be construed to extend no

further than implementing or interpreting

the specific powers and duties conferred by

the sa me statute.

10. In this case, Petitioners challenged the proposed rule

based on Sections 120.52(8)(b) and 120.52(8)(c), Florida

Statutes. Each of these potential reasons for invalidating the

proposed rule is addressed below.

Section 120.52(8)(b), Fl orida Statutes .

11. The proposed rule identifies Respondent's specific

statutory authority as Section 468.802, Florida Statutes, which

states as follows:

468.802 Authority to adopt rules. -- The

board shall adopt rules pursuant to ss.

120.536(1) an d 120.54 to implement the

provisions of this act, including rules

relating to standards of practice for

orthotists, prosthetists, and pedorthists.

12. Section 468.80, Florida Statutes, defines terms such

as orthosis, orthotics, orthotist, pedorthic s, pedorthist,

prosthesis, prosthetics, prosthetist, and prosthetist - orthotist.

See Sections 468.80(4), 468.80(7), 468.80(8), an 468.80(10)

through 468.80(15), Florida Statutes. Section 468.80, Florida

Statutes, does not define "direct supervision." The only

reference to "direct supervision" in the O&P practice act is

located in Section 468.808, Florida Statutes, which states as

follows:

468.808 Support personnel. -- A person must

be licensed to practice orthotics,

prosthetics, or pedorthics in this state .

However, a licensed orthotists, prosthetist

or pedorthist may delegate duties to

nonlicensed supportive personnel if those

duties are performed under the direct

supervision of a licensed orthotist,

prosthetist, or pedorthist. In such

instances the supe rvising licensee is

responsible for all acts performed by such

persons.

13. The legislature could have defined the term "direct

supervision," as it did in the professional practice acts

governing radiographers, athletic trainers, optometrists,

dentist s, physical therapists, and opticians. See §§

468.301(6), 468.701(8), 463.002(6), 466.003(8), 486.021(9), and

484.002(5), Fla. Stat. Additionally, the legislature could have

expressly directed Respondent to create a rule defining "direct

supervision," as it did for the professional licensing boards

that regulate speech pathologists, respiratory therapists and

chiropractors. See §§ 468,1125, 468.352, and 460.403, Fla.

Stat. On the other hand, the legislature could have refrained

from referencing any leve l of supervision for support personnel

as it did in the professional practice acts for medical doctors,

podiatrists, nurses, and psychologists. See §§ 458.305,

461.003, 464,003, and 490.003, Fla. Stat.

14. In this case, the legislature gave Respondent the

authority to create rules establishing the standards of practice

for orthotic, prosthetic, or pedorthic professional services.

The standards of practice necessarily include the circumstances

and conditions under which a licensee may provide direct

su pervision to nonlicensed employees. Otherwise, there would be

no way to ensure that supervising licensees are providing

services, directly and indirectly, "with that level of care and

skill which is recognized by a reasonably prudent licensed

practitioner with similar professional training as being

acceptable under similar conditions and circumstances." See §§

468.811(1)(h), Fla. Stat.

15. Only licensed professionals are permitted to evaluate,

design, fabricate, and fit orthotic, pedorthic, and prosth etic

devices. Therefore, the licensed professional's appropriate

oversight and control of unlicensed personnel participating in

the provision of those services is an essential standard of

practice. Respondent did not exceed its rulemaking authority,

in v iolation of Section 120.52(8)(b), Florida Statutes, when it

proposed to amend Florida Administrative Rule 64B14 - 3.001(12) to

create a standard of practice defining the term "direct

supervision."

Section 120.52(8)(c), Florida Statutes.

16. The proposed rule identifies the laws it implements as

Sections 468.802, 468.803, 468.807, 468.808, and 468.809,

Florida Statutes. Respondent's general rulemaking authority,

Section 468.802, Florida Statutes, is quoted above, along with

the only other statutory that is relevant here, Section 468.808,

Florida Statutes.

17. Section 468.808, Florida Statutes, specifically

authorizes licensed O&P practitioners to utilize unlicensed

support personnel to perform work under the licensees' direct

supervision and holds the supervising licensee responsible for

all acts performed by unlicensed individuals. The proposed rule

does not enlarge, modify, or contravene the statute, contrary to

Section 120.52(8)(c), Florida Statutes, by describing the

circumstances under which lice nsed practitioners must personally

evaluate patient needs, approve repairs, and/or evaluate the fit

and effectiveness of devices prior to patient use. The proposed

rule does not enlarge, modify, or contravene the statute by

requiring that two - way communic ation be available between the

licensed professional and unlicensed employee making a repair

that will not alter the fit of an existing device.

18. Petitioner argues that the proposed rule limits the

discretion of licensed O&P practitioners to determin e the

appropriate level of supervision in their individual practices.

This is true. However, Section 468.808, Florida Statutes, which

forms the basis for rule adoption, limits the practitioner's

discretion by requiring that unlicensed subordinates work u nder

the "direct supervision" of licensed professionals.

19. Any restriction in professional judgment arises first

in Section 468.808, Florida Statutes. Consistent with the

statute, the proposed rule ensures that all work performed and

services provid ed are directly supervised by a licensed

orthotist, prosthetist, or pedorthist, no more or less.

Section 120.595(2), Florida Statutes .

20. Petitioner's request for attorney's fees pursuant to

Section 120.595(2), Florida Statutes, is denied for two rea sons.

First, the proposed rule is not invalid. Second, Respondent's

decision to amend Florida Administrative Code Rule 64B14 -

3.001(12) to define the term "direct supervision" was

substantially justified, given Respondent's duty to create rules

setting fo rth standards of practice and the statutory authority

for unlicensed personnel to perform work under the "direct

supervision" of a licensed professional.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

That the pro posed amendment to Florida Administrative Code

Rule 64B14 - 3.001(12) is not invalid under Sections 120.52(8)(b)

and 120.52(8)(c), Florida Statutes, and the Petition to

Determine the Invalidity of a Proposed Rule is dismissed.

DONE AND ORDERED this 9th day of March, 2006, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 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 9th day of March, 2006.

COPIES FURNISHED :

Nate Wesley Strickland, Esquire

Foley & Lardner, LLP

106 East Colleg e Avenue, Suite 900

Tallahassee, Florida 32301

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

T allahassee, Florida 32399 - 1050

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of Sta te

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A 00

Tallahassee, Florida 32399 - 1701

Joe Baker, Jr., Executive Director

Board of Orthotists and Prosthetists

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 1701

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 the original Notice of Appeal with the 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 res ides. The notice of

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

be reviewed.