09-002312RP Della Christie vs. Department Of Corrections Status: Closed DOAH Final Order on Monday, November 2, 2009.

Summary: The Proposed Rule's provision requring documentation without further guidance was vague. The remaining provisions are valid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELLA CHRISTIE, )

)

Petitioner, )

)

vs. ) Case No. 09-2312RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on September 17, 2009, at Tallahassee, Florida, before

Administrative Law Judge (ALJ) Claude B. Arrington of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Terry R. Rigsby, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

Randall C. Berg, Jr., Esquire

Joshua A. Glickman, Esquire

Florida Justice Institute, Inc.

4320 Bank of America Tower

100 Southeast Second Street

Miami, Florida 33131-2309

For Respondent: Timothy E. Dennis, Esquire

Assistant Attorney General

Lee Ann Gustafson, Esquire

Senior Assistant Attorney General

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner has the requisite standing to challenge

the subject Proposed Rule.

Whether Proposed Rule 33-401.701, published in the Florida

Administrative Weekly on March 6, 2009, and subsequently amended

on May 29, 2009, and June 19, 2009, constitutes an invalid

exercise of delegated legislative authority pursuant to the

provisions of Sections 120.56(1) and (2), Florida Statutes

(2009). 1

PRELIMINARY STATEMENT

On November 14, 2008, Respondent Florida Department of

Corrections (the Department) published a Notice of Rule

Development for Proposed Rule 33-401.701 (the Proposed Rule).

On March 6, 2009, the Department published a Notice of Proposed

Rulemaking for the Proposed Rule. On April 30, 2009,

Petitioners Louie Christie (Mr. Christie), Della Christie

(Ms. Christie or Petitioner), William J. Sheppard

(Mr. Sheppard), and Florida Justice Institute, Inc. (FJI), filed

a “Petition To Determine Invalidity Of Proposed Rule 33-401.701”

the Proposed Rule, alleging that the Proposed Rule is an invalid

exercise of delegated legislative authority. Petitioners

i),

j) of the

Proposed Rule.

On May 1, 2009, the Chief Judge of DOAH assigned this

matter to the undersigned ALJ. On May 5, 2009, Petitioners

moved to file an Amended Petition. On May 5, 2009, the

undersigned granted Petitioners’ motion. On May 6, 2009, the

parties waived the requirement set forth in Section

120.56(1)(c), Florida Statutes, that the hearing be commenced

within 30 days of the filing of the Petition. On May 29, 2009,

the Department published a Notice of Change for the Proposed

Rule. On June 2, 2009, Petitioners filed a Second Amended

Petition. On June 19, 2009, the Department published a second

Notice of Change for the Proposed Rule.

On July 15, 2009, Mr. Christie filed a Notice of Dismissal

by which he voluntarily withdrew as a petitioner.

On July 20, 2009, the remaining Petitioners moved for leave

to file a Third Amended Petition and attached thereto their

proposed Third Amended Petition, which specifically challenged

the same subsections of the Proposed Rule (as amended) that were

challenged in the initial Petition. On July 27, 2009, the

undersigned entered an Order Granting Motion to Amend Petition,

which granted Petitioners’ motion and deemed the Third Amended

Petition filed and served on the Department.

Also on July 20, 2009, the Department filed a Motion for

Summary Final Order, asserting that the Petitioners did not have

standing to challenge the Proposed Rule and also asserting that

the Proposed Rule was not an invalid exercise of delegated

legislative authority. A hearing was held on July 29, 2009, as

to the issue of the Petitioners’ standing only. As a result, a

Final Order was entered on August 5, 2009, dismissing

Mr. Sheppard and FJI as Petitioners. That Order is currently on

appeal to the Florida First District Court of Appeal.

On August 28, 2009, Petitioner filed a Motion for Summary

Final Order with Incorporated Memorandum of Law. On

September 8, 2009, the Department filed its Response to

Petitioner’s Motion for Summary Final Order. On September 14,

2009, the undersigned entered an order denying Petitioner’s

Motion for Summary Final Order.

At the final hearing conducted on September 17, 2009, the

Petitioner offered the testimony of Jeffrey Y. Bedenbaugh,

Ms. Christie, and James M. Barclay, Esquire. Mr. Bedenbaugh is

the Operations and Management Consultant Manager for the

Department, its Privacy Officer under the Health Insurance

Portability and Accountability Act of 1996 (HIPAA), and its

designated corporate representative in this rule challenge.

Ms. Christie testified on her own behalf. Mr. Barclay is a

health care attorney in private practice and was accepted as an

expert in medical record privacy and security under HIPAA.

Petitioner offered Exhibits 18-21, 25, 26, 29, 31-38, 41, 43,

47, 48, 50, 51, and 53; all exhibits, except for Petitioner’s

Exhibit 29, were accepted into evidence. Petitioner further

proffered Petitioner’s Exhibits 1-4, 7-12, 14, 15, 17, 27, 28,

29, 30, 39, 40, and 42 for the record. Petitioner also

proffered that the Department’s current practice with regard to

the medical records of a deceased inmate is no different that

what the Proposed Rule intends in terms of procedure.

Respondent presented no witnesses, but offered one exhibit,

which was admitted into evidence for the purpose of

demonstrating the efforts that went in to drafting the Proposed

Rule.

The Transcript of the final hearing, consisting of one

volume, was filed on October 1, 2009. The Proposed Final Orders

filed by the parties on October 12, 2009, have been duly-

considered in the preparation of this Final Order.

FINDINGS OF FACT

The Parties

1. Ms. Christie is a citizen of Florida who resides at

8464 Southeast Pettway Street, Hobe Sound, Florida.

Ms. Christie is the biological mother of Carvetta Thompson, a

former inmate who died while in the custody of the Florida

Department of Corrections.

2. Ms. Christie has attempted to obtain medical records of

her deceased daughter that were generated while her daughter was

incarcerated. Those inmate medical records are in the custody

of the Department. 2 Ms. Christie has obtained some, but not all,

of the requested inmate medical records. Ms. Christie

testified, credibly, that she will continue to seek to obtain

her deceased daughter’s inmate medical records from the

Department.

3. Ms. Christie is not familiar with the steps that must

be followed in opening an estate for her deceased daughter so

that a personal representative can be appointed for the estate.

Ms. Christie testified, credibly, that she cannot afford the

cost of retaining an attorney to open an estate for her deceased

daughter.

4. Ms. Christie’s substantial interests will be affected

should the Proposed Rule become effective because she will be

subject to its requirements in seeking her deceased daughter’s

inmate medical records. Ms. Christie has standing to bring this

rule challenge. In addition to establishing the procedure for

obtaining inmate medical records for a deceased inmate, the

Proposed Rule also seeks to establish procedures for a living

inmate or living former inmate to obtain his or her inmate

Petitioner does not have standing to challenge the portions of

the Proposed Rule that relate to a living person obtaining his

or her inmate medical records.

5. The Department is an agency of the State of Florida.

The Department has the requisite rulemaking authority to enact

the Proposed Rule. Sections 944.09 and 945.10, Florida

Statutes, specifically direct the Department to adopt rules

relating to the subjects encompassed by the Proposed Rule.

Section 944.09(1) confers rulemaking authority on the

Department. Section 944.09(1)(a) requires the Department to

adopt rules relating to the rights of inmates. Section

944.09(1)(e) requires the Department to adopt rules relating to

the “. . . operation and management of the correctional

institution or facility and its personnel and functions.”

Section 945.10 requires the Department to adopt rules to “. . .

prevent disclosure of confidential records or information to

unauthorized persons.”

The Rule Making Process

6. On November 14, 2008, in Volume 34, Number 46, of the

Florida Administrative Weekly, the Department published Notice

of the Development of the Proposed Rule, entitled Medical and

Substance Abuse Clinical Files , which notice provided an

opportunity to request a rule development workshop.

7. On November 20, 2009, FJI requested a rule development

workshop. By letter dated December 3, 2008, Walter A. McNeil in

his capacity as the Secretary of the Department, the Department

denied FJI’s request and provided an explanation as to why a

rule development workshop was considered to be unnecessary.

Secretary McNeil noted that the Proposed Rule had been reviewed

by numerous individuals who have considerable expertise and that

the Proposed Rule merely transfers language from an existing

rule. Secretary McNeil’s response was as follows:

I have determined that a rule development

workshop is not necessary at this time. The

proposed rule has been reviewed by numerous

individuals who have considerable expertise

in the issues that are included in this

proposal. Furthermore, the proposed rule

merely transfers language from an existing

rule while adding language that incorporates

mandates of the Health Insurance Portability

and Accountability Act Privacy Rule of 1996

(HIPAA) and Federal regulations regarding

the privacy and security of personal health

information.

Written comments received will be

considered prior to drafting the final

version of the rules for inclusion in the

notice of proposed rulemaking. Affected

persons will again be given the opportunity

to offer comments and to request a public

hearing if necessary subsequent to

publication of the notice of proposed

rulemaking in the Florida Administrative

Weekly.

All comments received will be considered

as we further analyze the rules of the

Department.

8. On December 16, 2009, the Department received a letter

indicated that the Notice of Rule Development for the Proposed

Rule had not been adequately posted at Sumter Correctional

Institute (“Sumter C.I.”).

9. On January 16, 2009, the Department responded to JAPC,

stating that, although the Notice of Rule Development had not

been initially posted at Sumter C.I. on November 14, 2008, it

had been subsequently posted, giving the inmates there time to

submit comments and/or workshop requests. The failure to

initially post the notice at Sumter C.I. did not constitute a

material departure from the applicable rule making process.

10. On March 6, 2009, in Vol. 35, No. 9 of the Florida

Administrative Weekly, the Department published a Notice of the

Proposed Rule. On March 18, 2009, FJI again timely requested a

public hearing on the Proposed Rule. On April 21, 2009, the

Department granted FJI’s request and held a public hearing on

the Proposed Rule at its Tallahassee headquarters. The

Department’s initial denial of the request for a workshop did

not constitute a material departure from the applicable rule

making process.

The Proposed Rule

11. The Department is a “covered entity” for purposes of

HIPAA. As such, the Department is required to comply with the

applicable provisions of HIPAA, including those provisions

governing a covered entity’s determination of who is eligible to

obtain inmate medical records when the inmate is deceased.

12. The Department presently has an existing rule, 33-

601.901, “Confidential Records,” that governs, in part, the

subjects identified in the Proposed Rule. Subsection (9)(a) of

that rule provides, in relevant part, as follows:

(9) Any information, whether recorded or

not, concerning the identity, diagnosis,

prognosis or treatment of any inmate or

offender which is maintained in connection

with the performance of any alcohol or drug

prevention or treatment function shall be

confidential and disclosed only as follows:

(a) With the prior written consent of the

inmate or offender. The written consent

shall include the following information:

* * *

6. The signature of the inmate or

offender; or, when required for an inmate

offender who is incompetent or deceased, the

signature of a person authorized to sign in

lieu of the inmate or offender.

13. The Department also has in place a Health Services

Technical Instruction No. 15.12.03, “Health Records” (the

Technical Instruction), but it has not been formally adopted as

a rule. Appendix A of the Technical Instruction provides at

page 15 of 23 under Section G.2.c. as to signing of the

authorization form for the release of protected inmate medical

records of a deceased inmate:

c. In case of a deceased inmate,

authorization must be signed by next of kin

(e.g. spouse, parent or children, or

personal representative.) A certified copy

of a letter of administration is required to

be on file in the health record.

14. The Proposed Rule seeks to establish standards for the

use and disclosure of inmate medical records in accordance with

HIPAA and Florida law.

15. Petitioner challenges Subsection (1) of the Proposed

Rule, because it distinguishes medical records and hospital

records. Subsection (1) provides as follows:

(1) The Department of Corrections Office

of Health Services shall maintain a

comprehensive medical file (including

medical, dental and mental health

components) on every person committed to the

custody and care of the Department.

Information included in the inmate’s medical

file is protected in accordance with the

Health Insurance Portability and

Accountability Act Privacy Rule of 1996,

(HIPAA) and Florida law. The Department of

Corrections shall also maintain a

comprehensive substance abuse file on every

inmate who receives substance abuse program

services. Information included in the

inmate’s substance abuse file is

confidential in accordance with [HIPAA] and

Florida law. The Department of Corrections

Reception and Medical Center Hospital shall

maintain an inpatient hospital medical file

on every inmate admitted for care and

treatment at Reception Medical Center

Hospital.

16. Petitioner challenges the following definitions set

Proposed Rule:

(2)(f) Hospital file – as used in this

rule refers to an inmate’s inpatient

hospital patient records created and

maintained by Reception Medical Center

Hospital.

* * *

(2)(h) Personal Representative – as used

in this rule, means, with respect to a

deceased inmate, an executor, administrator,

or other person with authority under Florida

law to act on behalf of the deceased inmate

or the inmate’s estate.

(2)(i) Privacy Officer – as used in this

rule, refers to a designated employee in the

Office of Health Services who is responsible

for the development and implementation of

the policies and procedures related to the

HIPAA Privacy Rule. The privacy officer is

the Department’s contact person for HIPAA.

17. Other than the language contained in Subsection

(2)(h), the Proposed Rule offers no guidance as to whom can

qualify to be an “other person with authority under Florida law

to act on behalf of the deceased inmate or the inmate’s estate”

for purposes of qualifying as a “personal representative”

pursuant to the Proposed Rule. Instead, it is the

responsibility of the individual requesting the medical records

to determine the statutory or other legal basis that confers

upon the person his or her legal authority to access the inmate

medical records, and it is the responsibility of the person

seeking the medical records to state that authority to the

Department.

18. Petitioner challenges the following provisions set

forth in subparagraphs (b), (h), (i), and (j) of Subsection 10

of the Proposed Rule:

(10)(b) Requests for access to a former

inmate’s medical file shall be submitted to:

Inactive Medical Records, Reception and

Medical Center, P.O. Box 628, Lake Butler,

Florida 32054. Requests for access to an

inmate’s hospital file shall be submitted

to: Reception and Medical Center Hospital,

Attention: Hospital Administrator, P.O. Box

628, Lake Butler, Florida 32054.

* * *

(10)(h) In accordance with 45 C.F.R. §

164.502, a personal representative of a

deceased inmate shall have access to or

authorize the disclosure of the deceased

inmate’s protected health information that

is relevant to the personal representative’s

legal authority to act on behalf of the

deceased inmate or the deceased inmate’s

estate. A certified copy of a letter of

administration, court order, or other

document demonstrating the legal authority

of the personal representative shall be

filed in the inmate’s medical file and Form

DC4-711B, Consent and Authorization for Use

and Disclosure Inspection and Release of

Confidential Information must be signed by a

personal representative.

. . .

(10)(i) In accordance with 45 C.F.R. §

164.502, a personal representative of a

living inmate shall have access to or

authorize the disclosure of the inmate’s

protected health information that is

relevant to the personal representative’s

legal authority to make health care

decisions on behalf of the inmate. Form

DC4-711B, Consent and Authorization for Use

and Disclosure Inspection and Release of

Confidential Information must be signed by a

personal representative in accordance with

Florida law. A copy of a health care

surrogate form, durable power of attorney,

or other document demonstrating the personal

representative’s authority shall be filed in

the inmate’s medical file.

(10)(j) In addition to the access

described above, in accordance with Section

395.3025, Florida Statutes, an inmate’s

guardian, curator, personal representative,

or in the absence of one of those persons,

next of kin of a decedent or the parent of a

minor, shall have access to the protected

health information contained in an inmate’s

hospital file created and maintained by the

Reception Medical Center Hospital after the

discharge of the inmate.

19. Other than specifying that before being accepted as a

personal representative, the requesting party must submit a

“. . . certified copy of a letter of administration, court

order, or other document demonstrating the legal authority of

the personal representative,” the Proposed Rule offers no

guidance as to what document will be required. Except in cases

where an estate has been issued and there exists a letter of

administration or other document issued by a court of competent

jurisdiction, any asserted authority will depend on factual

assertions. The Proposed Rule offers no guidance as to how

those factual assertions should be made.

Florida Law

20. Sections 395.3025, 381.028, 408.051, 766.104, Florida

Statutes, list categories of individuals who are eligible to

request medical records and take action on behalf of a decedent

without opening an estate or obtaining a written designation as

a “personal representative.”

21. Section 395.3025, Florida Statutes, entitled Patient

and personnel records; copies; examination , requires that any

licensed facility furnish, without delays for legal review, a

complete copy of all patient records to the next of kin of a

deceased patient upon written request. Section 395.3025

provides, in pertinent part, as follows:

(1) Any licensed facility shall, upon

written request, and only after discharge of

the patient, furnish, in a timely manner,

without delays for legal review, to any

person admitted therein for care and

treatment or treated thereat, or to any such

person’s guardian, curator, or personal

representative, or in the absence of one of

those persons, to the next of kin of a

decedent or the parent of a minor, or to

anyone designated by such person in writing,

a true and correct copy of all patient

records . . . .

22. Section 381.028, Florida Statutes, entitled Patients’

Right-to-Know About Adverse Medical Incidents Act , grants

patients and their next of kin access to records of adverse

medical incidents made or received in the course of business by

a health care facility or provider. Section 381.028 provides,

in pertinent part, as follows:

(3)(a) “Have access to any records” means

. . . making the records available for

inspection and copying upon formal or

informal request by the patient or a

representative of the patient . . .

* * *

(3)(k) “Representative of the patient”

means a parent of a minor patient. . . . In

the case of a deceased patient, the term

also means the personal representative of

the estate of the deceased patient; the

deceased patient’s surviving spouse,

surviving parent, or surviving adult child;

the parent or guardian of a surviving minor

child of the deceased patient; or the

attorney for any such person.

* * *

(4) Patients’ right of access. – Patients

have a right to have access to any records

made or received in the course of business

by a health care facility or health care

provider relating to any adverse medical

incident.

23. Section 408.051, Florida Statutes, entitled Florida

Electronic Health Records Exchange Act (the “Health Records

Act”), was passed in the 2009 Legislative session and signed

into law on June 16, 2009. The Health Records Act establishes

standards and procedures to maintain the privacy and security of

identifiable health records. Section 408.051 expressly

recognizes the right of a patient or a “patient representative”

to authorize the use or release, in any form or medium, of an

identifiable health record. Section 408.051 defines a “patient

representative” as follows:

(2)(g) “Patient representative” means a

parent of a minor patient, a court-appointed

guardian for the patient, a health care

surrogate, or a person holding a power of

attorney. . . . In the case of a deceased

patient, the term also means the personal

representative of the estate of the deceased

patient; the deceased patient’s surviving

spouse, surviving parent, or surviving adult

child; the parent or guardian of a surviving

minor child of the deceased patient; the

attorney for the patient’s surviving spouse,

parent, or adult child; or the attorney for

the parent or guardian of a surviving minor

child.

24. Section 408.051 further establishes certain

obligations which a health care provider must fulfill upon the

receipt of a valid authorization form submitted by a patient or

his/her representative, as follows:

(4)(c) A health care provider receiving

an authorization form containing a request

for the release of an identifiable health

records shall accept the form as a valid

authorization to release an identifiable

health record.

* * *

(4)(e) A health care provider that

releases an identifiable health record in

reliance on the information provided to the

health care provider on a properly completed

authorization form does not violate any

right of confidentiality and is immune from

civil liability for accessing or releasing

an identifiable health record under this

subsection.

25. Section 766.104, Florida Statutes, entitled Pleading

in medical negligence cases; claim for punitive damages;

authorization for release of records for investigation , requires

a health care provider to provide a complete set of medical

records to the next of kin of a deceased patient, prior to the

administration of such patient’s estate, for the purposes of a

required investigation of an action for personal injury or

wrongful death arising out of medical negligence. Section

766.104 provides, in pertinent part, as follows:

(3) For purposes of conducting the

investigation required by this section, and

notwithstanding any other provision of law

to the contrary, subsequent to the death of

a person and prior to the administration of

such person’s estate, copies of all medical

reports and records, including bills, films,

and other records relating to the care and

treatment of such person that are in the

possession of a health care practitioner as

defined in s. 456.001 shall be made

available, upon request, to the spouse,

parent, child who has reached majority . . .

or attorney in fact of the deceased pursuant

to chapter 709.

HIPAA

26. HIPAA, at 45 C.F.R. Section 164.502(a), provides that

a “covered entity” may not use or disclose protected health

information except as permitted or required by the specific

provisions of HIPAA. The Department, a health care provider and

a HIPAA covered entity, is required to implement, comply with,

and enforce the mandates of HIPA.

27. The protections provided by HIPAA continue to apply

with respect to the protected health information of a deceased

individual and survive an individual’s death. See 45 C.F.R.

§ 164.502(f).

28. HIPPA requires that a covered entity treat an

executor, administrator, or other person as a “personal

representative” of a deceased individual only if applicable law

(in this case Florida law) provides authority for such person to

act on behalf of a deceased individual or the individual’s

estate. HIPAA requires that the covered entity treat the person

as a “personal representative,” who stands in the shoes of the

individual, only “with respect to protected health information

relevant to such personal representation.”

29. A covered entity must provide an individual who

qualifies as a personal representative under state law with

access to the protected health information that is relevant to

the personal representative’s authority to act on behalf of the

deceased person as authorized under state law. 45 C.F.R.

§ 164.502(g)(4). HIPAA provides at 45 C.F.R. Section 502(f)-

(g), in pertinent part, as follows:

(f) Standard: Deceased individuals. A

covered entity must comply with the

requirements of this subpart with respect to

the protected health information of a

deceased individual.

(g)(1) Standard: Personal

representatives. As specified in this

paragraph, a covered entity must, except as

provided in paragraphs (g)(3) and (g)(5) of

this section, treat a personal

representative as the individual for all

purposes of this subchapter.

* * *

(g)(4) Implementation specification:

Deceased individuals. If under applicable

law an executor, administrator, or other

person has authority to act on behalf of a

deceased individual or of the individual’s

estate, a covered entity must treat such

person as a personal representative under

this subchapter, with respect to protected

health information relevant to such personal

representation.

30. HIPAA establishes a foundation of federally-protected

rights which permit individuals to control certain uses and

disclosures of their protected health information. HIPAA

confers several important rights on individuals regarding their

own protected health information, including the right of access

to protected medical records held by a covered entity set forth

in 45 C.F.R. Section 164.524(a)(1).

31. In defining what protected health information must be

made accessible to an individual by a covered entity, HIPAA does

not distinguish between medical files and hospital files, or

between in-patient medical records and out-patient medical

records. If a covered entity that receives a request for

records does not possess all of the requested records, HIPAA

places an affirmative obligation upon the covered entity to

notify the requesting individual of where the remaining records

are located. The Proposed Rule is consistent with those

requirements of HIPAA.

32. HIPAA further provides specific standards regarding

who has authority to act as a personal representative and access

the medical records of a deceased individual. Pursuant to

HIPAA, if an individual has authority under applicable state law

to act on behalf of a deceased individual, he or she is

designated as that deceased individual’s personal representative

and enjoys full rights of access to that deceased individual’s

protected health information. The Proposed Rule is consistent

with those requirements.

33. While as to this proceeding, Florida law determines

who can qualify as a personal representative, the disclosure of

the protected records must, at a minimum, comply with HIPAA

disclosure requirements. Pursuant to HIPAA, the Department, as

a covered entity, is required to verify the identity and the

authority of a person requesting inmate medical records prior to

disclosure. See 45 C.F.R. § 164.514(h)(1).

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to the provisions of Section 120.56, Florida

Statutes.

35. Pursuant to the provisions of Section 120.56(1)(e),

Florida Statutes, this a de novo proceeding with the undersigned

having final order authority.

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

the burden of proof pertinent to this proceeding is as follows:

The petitioner has the burden of going

forward. The agency has the burden to prove

by the preponderance of the evidence that

the proposed rule is not an invalid exercise

of delegated legislative authority as to the

objections raised.

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

proposed rule is not presumed to be valid or invalid.

38. Pursuant to Sections 120.56(2)(a) and 120.57(1)(j),

Florida Statutes, the standard of proof is a preponderance of

the evidence.

39. Chapter 120 affords a hearing “in all proceedings in

which the substantial interests of a party are determined by an

agency and where there is a disputed issue of material fact.”

See Palm Beach County Environmental Coalition v. Florida Dept.

of Environmental Protection , 14 So. 3d 1076 (Fla. 4th DCA 2009).

40. Any individual who is “substantially affected” by a

proposed rule has standing to challenge the proposed rule as an

invalid exercise of delegated legislative authority. See State,

Department of Health and Rehabilitative Services v. Alice P. ,

367 So. 2d 1045, 1052 (Fla. 1st DCA 1979).

41. In order for a petitioner to establish standing, the

petitioner must demonstrate that the petitioner has or will

suffer an injury, or threat of injury, that is real and

immediate. This injury, or threat of injury, cannot be

speculative, nonspecific, hypothetical, or lacking in immediacy

and reality. A petitioner must also demonstrate that the

petitioner’s alleged interest is arguably within the zone of

interest to be protected or regulated. See Rosenzweig v.

Department of Transportation , 979 So. 2d 1050, 1052 (Fla. 1st

DCA 2008). A petitioner need not demonstrate any likelihood of

success on the ultimate merits of the challenge, however, in

order to enjoy standing. See Palm Beach County Environmental

Coalition , supra, 14 So. 3d at 1076.

42. Based on the findings of fact set forth above, it is

concluded that Ms. Christie has the requisite standing to bring

this rule challenge. In its Proposed Final Order, the

Department agreed with that conclusion.

43. Pursuant to Section 120.56(1)(a), Florida Statutes, a

petitioner may seek an administrative determination regarding

the invalidity of a rule only on the grounds that the rule is an

“invalid exercise of delegated legislative authority.”

44. Section 120.52(8), Florida Statutes, defines “invalid

exercise of delegated legislative authority” to mean:

. . . action that goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority only if any one of the following

applies:

a. The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

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.;

d. The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

e. The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

f. The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

. . .

45. Many of the allegations in the Third Amended Petition

appear to challenge the anticipated application of the Proposed

Rule, rather than its facial validity. A challenge to a

proposed rule pursuant to Section 120.56, Florida Statutes, is

to the facial validity of the proposed rule, but such a

challenge is not to determine the validity of the proposed rule

as to specific facts. See Fairfield Communities v. Fla. Land

and Water Adjudicatory Commission , 552 So. 2d 1012, 1014 (Fla.

1st DCA 1988). The allegations as to the anticipated

implementation of the Proposed Rule are beyond the scope of this

proceeding.

Section 120.52(8)(a), Florida Statutes

46. Petitioner asserted that the Department materially

failed to follow the applicable rule making procedures or

requirements set forth in Chapter 120, Florida Statutes, within

the meaning of Section 120.52(8)(a), Florida Statutes.

Ms. Christie raised two issues that she contends show the

Department violated Section 120.52(8)(a). First, Ms. Christie

contends that the Department materially failed to follow

applicable rule making procedures by denying a request made by

FJI to conduct a workshop at the rule development stage.

Second, Ms. Christie contends that the Department materially

failed to follow applicable rule making procedures by failing to

post rulemaking notices at Sumter C.I.

47. As set forth in the Findings of Fact, Petitioner

failed to establish that either alleged deficiency constitutes a

material failure on the part of the Department to follow

applicable rule making procedures.

48. The greater weight of the credible evidence

established that the Department has followed all applicable

procedural steps in reaching this juncture in the rulemaking

process.

S e c t i o n 1 2 0 . 5 2 ( 8 ) ( b ) , F l o r i d a S t a t u t e s

49. Section 120.52(b), Florida Statutes, “pertains to the

adequacy of the grant of rulemaking authority,” including any

statutory qualifications upon the exercise of such authority.

See State, Board of Trustees of Internal Improvement Trust Fund

v. Day Cruise Assoc., Inc. , 794 So. 2d 696, 701 (Fla. 1st DCA

2001); Department of Business and Professional Regulation v.

Calder Race Course, Inc. , 724 So. 2d 100, 104 (Fla. 1st DCA

1998); and St. Johns River Water Management District v.

Consolidated-Tomoka Land Co. , 717 So. 2d 72, 81 (Fla. 1st DCA

1998).

50. Section 120.52(17), Florida Statutes, defines the term

“rulemaking authority,” as follows:

(17) “Rulemaking authority” means

statutory language that explicitly

authorizes or requires an agency to adopt,

develop, establish, or otherwise create any

statement coming within the definition of

the term “rule.”

51. Section 120.52(16), Florida Statutes, defines the term

“rule,” in relevant part, as follows:

(17) "Rule" means each agency statement

of general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

. . .

52. In addition to the definitions set forth above,

Section 120.52(8), Florida Statutes, contains the following

provision, which is commonly referred to as the “flush left

provision”:

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 enabling statute.

53. In the instant proceeding, Sections 944.09 and 945.10,

Florida Statutes, specifically direct the Department to adopt

rules relating to subjects encompassed by the Proposed Rule.

Section 944.09, Florida Statutes, provides as follows:

(1) The department has authority to adopt

rules pursuant to ss. 120.536(1) and 120.54

to implement its statutory authority. The

rules must include rules relating to:

(a) The rights of inmates.

* * * *

(e) The operation and management of the

correctional institution or facility and its

personnel and functions.

54. The Proposed Rule relates to the rights of inmates,

i.e ., the rights of inmates to access and authorize the release

of their protected health information. Additionally, the

Proposed Rule relates to the operation and management of

correctional institutions and facilities, and their personnel

and functions. The Proposed Rule directs all personnel

regarding the disclosure of inmate protected health information

and contains specific directives to health services

administrators regarding their functions with respect to inmate

medical files.

55. Section 945.10, Florida Statutes, states in part that:

(1) Except as otherwise provided by law

or in this section, the following records

and information held by the Department of

Corrections are confidential and exempt from

the provisions of s. 119.07(1) and s. 24(a),

Art. I of the State Constitution:

(a) Mental health, medical, or substance

abuse records of an inmate or an offender.

* * *

(h) Records that are otherwise

confidential or exempt from public

disclosure by law.

* * *

(4) The Department of Corrections shall

adopt rules to prevent disclosure of

confidential records or information to

unauthorized persons.

56. The Proposed Rule addresses the mandate set forth in

Section 945.10(4), Florida Statutes, to adopt rules to prevent

the disclosure of confidential protected health information to

unauthorized persons.

57. The Department is subject to at least two statutes

that direct it to adopt rules related to the health, medical,

substance abuse, and hospital files of an inmate, which is the

subject of the Proposed Rule. Consequently, the undersigned

concludes that the Department has not exceeded its grant of

rulemaking authority.

Section 120.52(8)(c), Florida Statutes

58. Pursuant to the provisions of Section 120.52(9),

Florida Statutes, the “law implemented,” as that term is used in

Section 120.52(8)(c), “means the language of the enabling

statutes being carried out or interpreted by an agency through

rulemaking.”

59. The Proposed Rule lists the following provisions of

law as being implemented: Sections 119.07, 395.3025, 944.09,

945.10, and 945.25, Florida Statutes.

60. In her Third Amended Petition, Ms. Christie

specifically contends that the Proposed Rule contravenes, “at a

minimum,” Sections 381.038, 395.3025, 765.401, and 766.104,

Florida Statutes. Sections 381.038, 765.401, and 766.104,

Florida Statutes, are not being implemented by the Proposed

Rule.

61. Ms. Christie has cited only one statute that was cited

by the Department as being implemented -- Section 395.3025(1),

Florida Statutes, which applies to “licensed facilities,” i.e.,

hospitals and other specified facilities that have been licensed

pursuant to Chapter 395, Florida Statutes.

62. Section 395.3025(1), Florida Statutes, generally

provides that a licensed facility must, upon written request,

furnish to:

the next of kin of a decedent . . . or to

anyone designated by such person in writing,

a true and correct copy of all patient

records in the possession of the licensed

facility.

63. In addition to Section 395.3025, Florida Statutes, the

Petitioner also alleges that the Proposed Rule contravenes other

provisions of Florida law, specifically, Sections 381.028,

765.401, and 766.104, Florida Statutes. As set forth in the

Findings of Fact section of this Final Order, the referenced

statutes provide rights to certain persons, usually specific

family members of a deceased person, to act on behalf of the

decedent or the decedent’s estate for specified, often limited,

purposes.

64. The Proposed Rule does not facially conflict with any

of the statutes cited by the Petitioner. The Department, in

recognition of these provisions in Florida law, has specifically

representative” may, in addition to an administrator or executor

of a deceased inmate’s affairs, be any “other person with

authority under Florida law to act on behalf of a deceased

inmate or the inmate’s estate.” The plain language of the

Proposed Rule does not prohibit or exclude anyone entitled,

pursuant to Florida law, from seeking the medical or hospital

files of a deceased inmate.

65. Once it is determined that a person is entitled to act

as a personal representative, the disclosure of the protected

records must, at a minimum, comply with the applicable

provisions of HIPAA.

66. To comply with HIPAA and applicable state law, the

Proposed Rule provides for verification and documentation

demonstrating the requestor’s legal authority to act as the

personal representative. The verification and documentation

provisions contained in the Proposed Rule implement requirements

set forth in HIPAA at 45 C.F.R. Section 164.514(h)(1), and the

requirement set forth in Section 945.10, Florida Statutes, that

the Department adopt rules to prevent the disclosure of

confidential inmate medical information to unauthorized persons.

67. Given the substantial civil and criminal penalties

that may be imposed for violations of HIPAA, such requirements

are reasonable and do not set forth such a barrier that they can

be said to impermissibly enlarge, modify, or contravene the

statutes implemented. 3

68. The definition of “personal representative” set forth

in Subsection (2)(h) of the Proposed Rule is consistent with and

does not contradict or misstate 45 C.F.R. Section 164.502(g) of

HIPAA. With respect to a deceased inmate, Subsection (2)(h)

recognizes that a personal representative may be any person with

authority under Florida law to act on behalf of the deceased

inmate or the deceased inmate’s estate.

69. Subsection (10)(h) of the Proposed Rule states:

In accordance with 45 C.F.R. § 164.502, a

personal representative of a deceased inmate

shall have access to or authorize the

disclosure of the deceased inmate’s

protected health information that is

relevant to the personal representative’s

legal authority to act on behalf of the

deceased inmate or the deceased inmate’s

estate. A certified copy of a letter of

administration or other document

demonstrating the legal authority of the

personal representative shall be filed in

the inmate’s medical file and Form DC4-711B,

Consent and Authorization for Use and

Disclosure Inspection and Release of

Confidential Information must be signed by a

personal representative.

70. This subsection is also consistent with and does not

facially conflict with 45 C.F.R. Section 164.502(g) of HIPAA.

With respect to a deceased inmate, this subsection recognizes

that a personal representative of a deceased inmate can access

(or authorize the disclosure of) the deceased inmate’s protected

health information that is relevant to the personal

representative’s legal authority.

71. In addition, subsection (10)(h) is facially consistent

with 45 C.F.R. Section 164.514(h)(1) of HIPAA, which requires

that prior to any disclosure of protected health information, a

covered entity must verify the identity and the authority of the

requestor to have access to protected health information, if

such is not known to the covered entity. Subsection (10)(h) of

the Proposed Rule is not facially inconsistent with 45 C.F.R.

Section 164.514(h)(1) by requiring, where a letter of

administration or court order is not provided, some other

document demonstrating the legal authority of the personal

representative.

Section 120.52(8)(d), Florida Statutes

72. Petitioner challenges Subsections (2)(h) (which

establishes guidelines for the disclosure of a deceased inmate’s

protected health information) of the Proposed Rule on the

grounds that these provisions are vague, fails to establish

adequate standards for agency decisions, or vest unbridled

decisions in the agency within the meaning of Section

120.52(8)(d), Florida Statutes.

73. An administrative rule is invalid pursuant to Section

120.52(8)(d), Florida Statutes, if it requires the performance

of an act in terms that are so vague that men of common

intelligence must guess as to its meaning. See Southwest

Florida Water Management District v. Charlotte County , 774 So.

2d 903, 915 (Fla. 2d DCA 2001). Where a rule vests unbridled

discretion in the hands of those implementing it, the rule must

also be found to be vague and must be similarly struck down as

an invalid exercise of delegated legislative authority. See

Merritt v. Department of Business and Professional Regulation,

Board of Chiropractic , 654 So. 2d 1051, 1054 (Fla. 1st DCA

1995).

74. The sufficiency of a rule’s standards and guidelines

may depend upon the subject matter dealt with and the degree of

difficulty in articulating finite standards. See Cole Vision

Corp. v. Department of Business and Professional Regulation,

Board of Optometry , 688 So. 2d 404, 410 (Fla. 1st DCA 1007). In

determining whether the challenged provisions are vague, the

undersigned has considered that the provisions of HIPAA and

applicable Florida law are complex.

75. In defining the term “personal representative”

Subsection (2)(h) of the Proposed Rule contains the phrase

“. . . or other person with authority under Florida law to act

on behalf of the deceased inmate or the inmate’s estate.

76. The right to receive or authorize the release of a

deceased individual’s protected health information is

specifically authorized and governed by several Florida statutes

and by HIPAA. The Florida laws specify varying degrees of

access to the deceased’s medical records, depending upon the

purpose and circumstances of the request. HIPAA further

instructs covered entities such as the Department to look to the

applicable law, i.e ., Florida law, to determine whether or not

to grant such requests. Because of the complexity of the

subject matter dealt with, it would be extremely difficult for

the Department to set forth every possible person whom would be

authorized to act as a personal representative. A person

seeking to act as a personal representative on behalf of a

deceased inmate should know, or ascertain, his or her legal

authority for making the request. It is not the responsibility

of the Department in its Proposed Rule to delineate all

circumstances that would provide such authority.

77. The challenged phrase in Subsection (2)(h) of the

Proposed Rule is not vague. The inclusion of the challenged

phrase expands the circumstances that will authorize a person to

act as a personal representative on behalf of a deceased inmate.

78. Subsection (10)(h) of the Proposed Rule requires the

person to provide to the Department “. . . [a] certified copy of

a letter of administration, court order, or other document

documenting the legal authority of the personal representative.

guidance is so vague that men of common intelligence must guess

as to its meaning and vests unbridled discretion in the

Department in implementing the determination of what constitutes

an “other document documenting the legal authority of the

personal representative.” Any assertion of authority will

require a factual predicate. It is not clear whether a letter

from the individual seeking to serve as the personal

representative or from that individual’s lawyer will suffice, or

whether an affidavit, birth certificate, death certificate, or

other unknown document will be required. Without guidance from

the Department as to what constitutes “other document” or what

factual proof is required, Subsection 10(h) of the Proposed Rule

is impermissibly vague.

Section 120.52(8)(e), Florida Statutes

79. In her Third Amended Petition, the Petitioner claims

that the Proposed Rule’s differentiation between how the

Department maintains, stores, and releases a deceased inmate’s

hospital files, versus the decedent’s other medical files, is

arbitrary and capricious.

80. Pursuant to Section 120.52(8)(e), Florida Statutes, a

proposed rule is rule is arbitrary if it is not supported by

logic or the necessary facts and proposed rule is capricious if

it is adopted without thought or reason or is irrational. A

proposed rule is neither arbitrary nor capricious within the

meaning of Section 120.52(8)(e), Florida Statutes, if it is

justifiable under any analysis that a reasonable person would

use to reach a decision of similar importance. See Dravo Basic

Materials Co., Inc. v. Department of Transportation , 602 So. 2d

634, n. 3 (Fla. 2d DCA 1992)).

81. One of the “laws implemented” by the Proposed Rule is

Section 395.3025, Florida Statutes, which only applies to

“licensed facilities,” such as the Department’s Reception and

Medical Center Hospital. Section 395.3025(1), Florida Statutes,

states:

(1) Any licensed facility shall, upon

written request, and only after discharge of

the patient, furnish, in a timely manner,

without delays for legal review, to any

person admitted therein for care and

treatment or treated thereat, or to any such

person’s guardian, curator, or personal

representative, or in the absence of one of

those persons, to the next of kin of a

decedent or the parent of a minor, or to

anyone designated by such person in writing,

a true and correct copy of all patient

records, including X-rays, and insurance

information concerning such person, which

records are in the possession of the

licensed facility, provided the person

requesting such records agrees to pay a

charge. The exclusive charge for copies of

patient records may include sales tax and

actual postage, and, except for nonpaper

records that are subject to a charge not to

exceed $2, may not exceed $1 per page. A

fee of up to $1 may be charged for each year

of records requested. These charges shall

apply to all records furnished, whether

directly from the facility or from a copy

service providing these services on behalf

of the facility. However, a patient whose

records are copied or searched for the

purpose of continuing to receive medical

care is not required to pay a charge for

copying or for the search. The licensed

facility shall further allow any such person

to examine the original records in its

possession, or microforms or other suitable

reproductions of the records, upon such

reasonable terms as shall be imposed to

assure that the records will not be damaged,

destroyed, or altered.

82. Subsections 2(f) and (g) of the Proposed Rule define,

patient records created and maintained by Reception Medical

Proposed Rule refers to “the inmate’s medical, mental health,

and dental files maintained by the department.”

83. Recognizing that Section 395.3025, Florida Statutes,

imposes specific requirements for how the patient files of a

licensed hospital can be disclosed, the Proposed Rule

distinguishes between how requests for “medical files” and

requests for “hospital files” should be submitted. Subsection

(10)(b) of the Proposed Rule states:

(10)(b) Requests for access to a current

inmate’s medical file shall be submitted to

the health services administrator at the

institution where the inmate is housed.

Requests for access to a former inmate’s

medical file shall be submitted to:

Inactive Medical Records, Reception and

Medical Center, P. O. Box 628, Lake Butler,

Florida 32054. Requests for access to an

inmate’s hospital file shall be submitted

to: Reception and Medical Center Hospital,

Attention: Hospital Administrator, P.O. Box

628, Lake Butler, Florida 32054.

84. The Proposed Rule further specifies who, in

conformance with Section 395.3025, Florida Statutes, may review

such records. Section (10)(j) of the Proposed Rule states:

In addition to the access described above,

in accordance with Section 395.3025, Florida

Statutes, an inmate’s guardian, curator,

personal representative, or in the absence

of one of those persons, next of kin of a

decedent or the parent of a minor, shall

have access to the protected health

information contained in an inmate’s

hospital file created and maintained by the

Reception Medical Center Hospital after the

discharge of the inmate.

85. Though the Department owns and operates a licensed

153-bed licensed hospital, the Department itself is not a

“licensed facility” for purposes of Chapter 395. Thus, the

differentiation in the Proposed Rule in regard to access to a

deceased inmate’s “hospital files” and the inmate’s other

“medical files” is consistent with the statute implemented and

is not arbitrary or capricious.

86. The Proposed Rule is not invalid on the basis that it

differentiates between a request for and release of hospital

files and other types of protected health information pursuant

to Section 395.3025, Florida Statutes.

87. Petitioner also contends that the Proposed Rule

requires the filing of documents not required by the provisions

of Sections 395.3025, 381.028, 408.051, 766.104, Florida

Statutes. That contention is rejected because the release of

the records described in those provisions are also subject to

HIPAA requirements set forth in 45 C.F.R. Section 164.514(h)(1),

to verify and document the authority of the person seeking to

serve as a personal representative. Once it is determined who

may serve as a personal representative, the disclosure is

subject to HIPAA’s requirements of verification and

documentation. The Proposed Rule is consistent with those HIPAA

requirements.

88. The Department’s Technical Instruction 4 addresses the

subject of inmate health records and the disclosure thereof, but

it has not been adopted as a rule. The Proposed Rule does not

facially conflict with the Technical Instruction because

reference to a letter of administration being on file clearly

relates to the circumstance where a personal representative of

an estate is the requestor. To the extent the Technical

Instruction is construed to conflict with the Proposed Rule, the

Proposed Rule, if adopted, would supersede the Technical

Instruction.

89. The Subsections of the Proposed Rule challenged by

Petitioner are neither arbitrary nor capricious within the

meaning of Section 120.52(8)(e), Florida Statutes.

Section 120.52(8)(f), Florida Statutes

90. Finally, the Petitioner contends that the Proposed

Rule imposes costs upon her and other next of kin of deceased

inmates by requiring family members to first be a declared

personal representative of an estate before being able to obtain

the deceased inmate’s medical records.

91. As previously stated, the Petitioner’s allegations

that the Proposed Rule requires one to open an estate and/or be

declared a personal representative is not apparent on the face

of the Proposed Rule. Petitioner’s contention involves the

potential application of the Proposed Rule, and is not

appropriate for this facial challenge pursuant to Section

120.56, Florida Statutes.

92. The following Subsections of the Proposed Rule do not

meet the statutory definition of the term “invalid exercise of

delegated legislative authority” set forth in Section 120.52(8),

3)(h),

(10(b), and (10)(j).

93. As set forth above, Subsections (10)(h) and (10)(i) of

the Proposed Rule are “vague, fails to establish adequate

standards, or vests unbridled discretion in the agency” within

the meaning of Section 120.52(8)(d), Florida Statutes, which

renders the Proposed Rule an “invalid exercise of delegated

legislative authority” in part.

FINAL ORDER

Based upon the foregoing findings and conclusions, it is

Rule 33-401.701 are an invalid exercise of delegated legislative

authority as that term is defined by Section 120.52(8)(d),

Florida Statutes, and that, consequently, the Proposed Rule is

partly invalid. Petitioner failed to prove her other challenges

to the Proposed Rule, and, therefore, the remainder of the

Proposed Rule, excepting Subsections (10)(h) and (10)(i), is

valid.

DONE AND ORDERED this 2nd day of November, 2009, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of November, 2009.

ENDNOTES

1 / All statutory references are to Florida Statutes (2009).

2 / For ease of reference, medical records (including medical,

dental, mental health, and substance abuse records) in the

possession of the Department that were generated while a person

was in the custody of the Department will be referred to as

inmate medical records.

3 / These procedural requirements will be discussed further in

determining whether the Proposed Rule is vague within the

argument that the Proposed Rule is arbitrary or capricious

because the Proposed Rule is inconsistent with certain

provisions of the cited statutes will be discussed further in

determining whether the Proposed Rule is arbitrary and/or

capricious.

4/ See paragraph 13 of this Final Order.

COPIES FURNISHED :

R. Terry Rigsby, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

Timothy E. Dennis, Esquire

Office of the Attorney General

The Capitol, Plaza-01

Tallahassee, Florida 32399

Randall C. Berg, Jr., Esquire

Florida Justice Institute, Inc.

4320 Bank of America Tower

100 Southeast Second Street

Miami, Florida 33131-2309

Scott Boyd, Executive Director

Joint Administrative Procedures Committee

120 Holland building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliot Building, Room 201

Tallahassee, Florida 32399-0250

Walter A. McNeil, Secretary

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

Kathleen Von Hoene, General Counsel

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

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 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.