06-001901RX The Florida Chapter Of The American College Of Emergency Physicians, Inc.; And Jorge Lopez-Ferrer, M.D. vs. Department Of Health, Board Of Medicine Status: Closed DOAH Final Order on Friday, July 21, 2006.

Summary: Petitioners do not have standing to bring this rule challenge. The case is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE FLORIDA CHAPTER OF THE )

AMERICAN COLLEGE OF EMERGENCY )

PHYSICIANS, INC.; AND )

JORGE LOPEZ - FERRER, M.D., )

)

Petitioners, )

)

vs. ) Case No. 06 - 1901RX

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent, )

)

and )

)

THE AME RICAN ASSOCIATION OF )

PHYSICIAN SPECIALISTS, INC., )

)

Intervenor. )

)

FINAL ORDER ON MOTION TO DISMISS

Respondent, Department of Health, Board of Medi cine

(Board), and Intervenor, American Association of Physician

Specialists, Inc. (AAPS), filed a Motion to Dismiss the Petition

for Formal Administrative Hearing to Determine the Invalidity of

Rule 64B8 - 11.001, Florida Administrative Code, filed by

Petiti oners, the Florida Chapter of the American College of

Emergency Physicians, Inc. (FCEP), and Jorge Lopez - Ferrer, M.D.

The primary basis for the Motion to Dismiss is that Petitioners

lack standing to bring this rule challenge. Petitioners filed a

response in opposition.

Section 120.56(1)(a), Florida Statutes, (2005) states that

any person substantially affected by a rule may seek an

administrative determination of the rule on the ground that the

rule is an invalid exercise of delegated legislative authorit y.

In order to demonstrate that a party is substantially affected

by a rule, one must establish that application of the rule will

result in "a real and sufficiently immediate injury in fact" and

that "the alleged interest is arguably within the zone of

in terest to be protected or regulated." Florida Board of

Medicine v. Florida Academy of Cosmetic Surgery, Inc. , 808 So.

2d 243, 250 (Fla. 1st DCA 2002).

Trade or professional associations have standing in certain

circumstances to challenge a rule:

To be p ermitted to do so, the trade or

professional association must demonstrate

that [1] a substantial number of its

members, although not necessarily a

majority, are 'substantially affected' by

the challenged rule[;] . . . [2] the subject

matter of the rule [is] within the

association's general scope of interest and

activity[;] and [3] the relief requested

[is] of the type appropriate for a trade

association to receive on behalf of its

members. '

Id. , quoting Florida Home Builders Ass'n v. Department

of Labor & Employment Security , 412 So. 2d 351 (Fla.

1982).

Paragraph (8) of the Petition alleges that Florida

Administrative Code Rule 64B8 - 11.001(7)(c) is an invalid

exercise of delegated legislative authority because: (a) the

Board exceeded its grant of ru lemaking authority when it

promulgated the Rule; (b) the Rule is arbitrary and capricious;

(c) the Rule is not supported by competent substantial evidence;

and (d) the Board's actions in promulgating the Rule were not

substantially justified. 1/

Additi onally, the Petition also alleges that Section

458.3312, Florida Statutes, the law implemented by the

challenged portion of the Rule, is an unlawful delegation of

legislative authority because it lacks specificity and

guidelines and grants the Board unbrid led discretion to

determine what, if any, standards should be met by an

organization applying for approval as a specialty recognizing

agency in violation of Article III, Section 1 of the Florida

Constitution. 2/

Section 24, ch. 97 - 264, Laws of Florida, c reated Section

458.3312, Florida Statutes, which reads as follows:

A physician licensed under this chapter may

not hold himself or herself out as a board -

certified specialist unless the physician

has received formal recognition as a

specialist from a speci alty board of the

American Board of Medical Specialties or

other recognizing agency approved by the

board . However, a physician may indicate

the services offered and may state that his

or her practice is limited to one or more

types of services when this accurately

reflects the scope of practice of the

physician. (emphasis supplied)

Florida Administrative Code Rule 64B8 - 11.001(2)(f) reads in

pertinent part as follows:

...For purposes of this rule, the Board

approves the specialty boards of the

Ameri can Board of Medical Specialties (ABMS)

as recognizing agencies, and such other

recognizing agencies as may request and

receive future approval by the Board based

upon the following criteria: . . .

The Rule then enumerates seven criteria that other

recogn izing agencies must meet to receive future Board approval.

The Rule identifies three "recognizing agencies currently

approved" by the Board in subparagraphs (7)(a) through (c) , to

include AAPS .

The Petition sets forth a factual background regarding the

po rtion of the Rule being challenged. That is, in 2002, AAPS

petitioned the Board for a waiver or variance of the criteria of

Rule 64B8 - 11.001(2)(f)1 - 7. The petition for waiver or variance

was granted by order of the Board in February 2002. The Board

then amended the Rule by adding AAPS as the third recognizing

agency currently approved by the Board in 64B8 - 11.001(7)(c),

which is the subject of this rule challenge. The Board and AAPS

allege that Petitioners' rule challenge is actually a collateral

attack on the action taken by the Board in granting AAPS's

petition for waiver or variance. This question need not be

reached to decide the Motion to Dismiss.

Citing numerous cases as authority, the Board and AAPS

argue that the Petition does not sufficiently st ate specific

facts showing that Dr. Lopez - Ferrer is substantially affected

and that the Petition does not include a specific showing of an

"injury in fact" that is within the "zone of interest" protected

by the statute and the challenged rule implementing it. The

Board and AAPS also argue that the Petition does not attempt to

show how a "substantial number" of the members of Petitioner

FCEP are "substantially affected" by the challenged rule.

The Petition includes the following allegations regarding

standi ng:

Petitioner's [ sic ] Standing

19. By permitting previously unqualified

physicians to advertise themselves as

specialists in the area of emergency

medicine, the Rule substantially impacts the

rights of hundreds of emergency medicine

physicians represen ted by the FCEP who have

completed a residency program in the

specialty of emergency medicine and are

board certified by ABMS [American Board of

Medical Specialties] approved certifying

entities such as the ABEM [American Board of

Emergency Medicine]and th e AOBEM [American

Osteopathic Board of Emergency Medicine].

20. The Rule serves to confuse the public

and to allow previously unqualified

physicians and physicians lacking the same

credentials, education, training and

certification as ABMS board certif ied

emergency medicine physicians to advertise

that they have certifications and

credentials equal to or the same as ABMS

board certified emergency physicians.

21. Despite the Board's assertions to the

contrary, the Petitioners have standing

under Flor ida law to challenge the validity

of the Rule. Petitioners have a substantial

interest in establishing and maintaining the

standards of education and competence

required for board certification in the

specialty of emergency medicine with the

State of Flor ida. Florida law recognizes

specifically acknowledges [ sic ] this fact.

Section 458.301, Florida Statutes , states

that 'the practice of medicine is

potentially dangerous to the public if

conducted by unsafe and incompetent

practitioners.' The FCEP shares this

viewpoint and through its educational and

professional purposes strives to help

prevent the practice of emergency medicine

by unsafe, incompetent or unqualified

practitioners.

22. The FCEP asserts that the Board's

approval of the AAPS' Petition h as a

substantial impact on emergency physicians

in the State of Florida, a large majority of

whom are members of the FCEP. The FCEP

further asserts that a significant amount of

data and information exists that was never

presented to the Board as part of t he AAPS'

Petition due to the proceedings and

correspondence surrounding the approval of

the AAPS' Petition and the Board's handling

of the AAPS' Petition.

23. The relief requested by the Petitioners

herein is necessary to protect the public

health, saf ety, and welfare and to maintain

and clarify the public's understanding of

the specialty recognizing agencies for

emergency medicine. The protection of the

public's health, safety and welfare through

proper understanding of the emergency

medicine specialt y is one of the primary

goals, objectives and purposes of the FCEP

and all of the FCEP's members. Thus, both

the FCEP and its members are substantially

affected by the Rule.

The Board and AAPS argue the following in paragraph 13 of

the Motion:

13. Th e Petition makes ambiguous and

generalized allegations of Petitioners'

interest in maintaining standards of

training in accordance with ABMS standards,

protecting the practice of emergency

medicine from physicians who are allegedly

not as qualified as ABMS certified emergency

medicine physicians, and protecting the

public from confusion as to the equality of

non - ABMS and ABMS certified emergency

medicine physicians. As in Board of

Optometry , Petitioner's [ sic ] have failed to

acknowledge that the statute be ing

implemented by the challenged rule has

removed any claim Dr. Lopez - Ferrer or the

other members of FCEP ever had to maintain

an ABMS standard for the recognition of

specialty certified emergency room

physicians or to 'protect' the public from

non - ABMS c ertified emergency medicine

physicians. The statute at issue, §

458.3312, Florida Statutes, specifically

approves the recognition of non - ABMS

certified physicians and obliges the Board

of Medicine to set up a process by which to

approve recognition of non - ABMS certifying

agencies. In this case, Petitioner's (sic)

cannot assert an exclusive right to hold

themselves out as specialty certified in

emergency medicine and are therefore not in

a position to assert a protected economic

right and their general int erest in

'protecting' the quality of emergency

medical care provided to the public is not

predicated upon a legally recognized right

of sufficient immediacy and reality to

support their standing to challenge the

validity of the adopted rule. Board of

Op tometry v. Society of Ophthalmology , 538

So. 2d 878,881 (Fla. 1st DCA 1988).

Particularly compelling is a comparison of that argument to

the court's opinion in Board of Optometry , which reads in

pertinent part:

Appellants argue that petitioners ignore th e

significant change made by chapter 86 - 289 in

the statutory authority of optometrists to

use certain topical ocular drugs. . . .In

the instant case, petitioners' right to

administer topical ocular drugs is no longer

exclusively reserved to their field of

practice...and they are no longer in a

position...to assert a protected economic

right that has been impaired by the subject

rule.

538 So. 2d 878, 881.

Petitioners rely on, among other cases, Board of Dentistry

v. Florida Dental Hygienist Association, Inc. , 612 So. 2d 646

(Fla. 1st DCA 1993). After careful review of the court's

opinion and the underlying Final Order (Division of

Administrative Hearings, Case Nos. 89 - 4427RP and 90 - 0258RP,

October 25, 1990), the undersigned is persuaded that Board of

De ntistry is distinguishable when compared to the instant case.

While the court in Board of Dentistry ultimately found the

Florida Dental Hygienist Association to have standing, it

acknowledged that that the issue of standing in the case was

"not easily res olved from existing case law" and was not "clear -

cut." Board of Dentistry , 612 So. 2d 646, 650. In reaching

this conclusion, the court recognized and discussed the Board of

Optometry decision:

In that case, Judge Zehmer, writing for the

court, first poin ted out that the

petitioners in that case . . .because of

statutory changes were no longer in a

position to assert a statutorily protected

economic right that had been impaired by a

rule. Judge Zehmer then added:

'Consequently, petitioners' continuing

gen eral interest in the quality of eye care

being provided to the public is not

predicated upon a legally recognized right

of sufficient immediacy and reality to

support their standing to challenge the

validity of the adopted rule.'

612 So. 2d 646 at 650 , qu oting from 538 So. 2d at 881.

The court in Board of Dentistry did not retreat from its

decision in Board of Optometry but distinguished it, relying

heavily on the legislative history of the controlling statute,

Section 466.007(2)(b), Florida Statutes (19 89). That statute

required , in pertinent part , that an applicant who desired to be

licensed as a dental hygienist must be a graduate of a dental

hygiene college or school approved by the board or accredited by

an accreditation agency. The Board of Dentis try court, and the

hearing officer below, traced the legislative history of the

statute in concluding that despite the use of the disjunctive

"or" in Section 466.007(2)(b), the Legislature intended to

restrict the Board of Dentistry in approving dental hyg iene

schools or colleges to either accredited schools or colleges or

unaccredited schools or colleges that were comparable to

accredited schools and colleges. Board of Dentistry , 612 So. 2d

646, 653 - 654. This conclusion, based in large part of the

legisl ative history of the applicable statute, is

distinguishable from the instant case, as ordinarily, the use of

the word "or" is generally construed in the disjunctive and

normally indicates that alternatives were intended. Sparkman v.

McClure , 498 So. 2d 89 2 (Fla. 1986).

The undersigned is persuaded that, under the rationale of

Board of Optometry , Petitioners lack standing to bring this rule

challenge.

In their response to the Motion to Dismiss, Petitioners

plead, in the alternative, that they be given an op portunity to

amend the Petition "to assert and allege further facts which

evidence the substantial effect the Rule has on Petitioners."

The effect of the Rule on Petitioners has been adequately pled

and need not be elaborated. Understanding the effect th e Rule

has on Petitioners, this effect is insufficient to confer

standing on Petitioners in light of the language of Section

458.3312, Florida Statutes, which by its terms creates the

opportunity for the Board to approve other recognizing agencies

apart fr om those of ABMS.

Accordingly, the undersigned finds that allowing amendment

to the Petition on this occasion would not allow Petitioners to

state a cause of action in this rule challenge proceeding. See

Undereducated Foster Children of Florida v. Flo rida Senate et

al . , 700 So. 2d 66 (Fla. 1st DCA 1997) .

Based upon the above, it is

ORDERED:

1. The Motion to Dismiss is granted.

2. Petitioners' request to amend the petition is denied.

3. The hearing scheduled for August 22 and 23 , 2006, is

cancel ed.

DONE AND ORDERED this 21st day of July, 2006, Tallahassee,

Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 21st day of July, 2006.

ENDNOTES

1/ The Board and AAPS correctly assert that the criterion that

a rule is not supported by competent substantial evidence as the

basis of a rule challenge was repealed in 2003 by s. 1, Ch.

2003 - 94, Laws of Flo rida.

2/ The Board and AAPS correctly assert that the undersigned is

without authority to decide constitutional challenges to

statutes or to existing rules. Department of

Administration, Division of Personnel v. Department of

Administration, Division of Administrative Hearings , 326 So. 2d

187 (Fla. 1st DCA 1976).

COPIES FURNISHED:

Michael R. Lowe, Esquire

Michael R. Lowe, P.A.

2180 West State Road 434, Suite 2150

Longwood, Florida 32779

Edward A. Tellechea, Esquire

Office of the Attorn ey General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Allen R. Grossman, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

Scott Boyd, Executive Director

and General C ounsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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, Flo rida

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 resides. The notice of

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

be re viewed.