21-000076RU Patricia Brooks vs. Florida Department Of Health, Board Of Physical Therapy Status: Closed DOAH Final Order on Wednesday, February 10, 2021.

Summary: Petition regarding alleged unadopted rule filed against the wrong agency; and alleged statements are statements of a private vendor. Petition dismissed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P ATRICIA B ROOKS ,

Petitioner ,

vs. Case No. 21 - 0 076RU

F LORIDA D EPARTMENT OF H EALTH ,

B OARD OF P HYSICAL T HERAPY ,

Respondent .

/

F INAL O RDER OF D ISMISSAL

This proceeding was initiated by a Petition to Determine the Invalidity of

Existing ÑNon - RuleÒ Agency Policy (Petition) on January 8, 2021. An

Amended Petition to Determine the Invalidity of Existing ÑNon - RuleÒ Agency

Poli cy was filed January 29, 2021 (Amended Petition). Prior to the filing of

the Amended Petition, the undersigned issued an Order to Show Cause, to

which both parties responded, and Respondent filed a Motion to Dismiss

Petition for Failure to State a Cause of Action on Which Relief Can be

Granted, and a Request for Amendment of the Petition. In PetitionerÔs

response to the Motion to Dismiss, Petitioner requested Ñsummary

judgment.Ò On February 1, 2021, Respondent filed a Motion to Dismiss

ÑAmended Petition to Determine the Invalidity of Existing ÓNon - RuleÔ Agency

PolicyÒ For Failure to State a Cause of Action Upon Which Relief Can Be

Granted (Motion to Dismiss Amended Petition). Although little, if any,

evidence has been submitted to support a Summary Final Ord er, it is

apparent from the papers filed by both parties that the material facts are not

in dispute, and the issues presented in this case are questions of law. For the

reasons set forth below, the undersigned is persuaded that the Motion to

Dismiss Amende d Petition should be granted, and the case dismissed.

Providing Petitioner another opportunity to further amend the Amended

Petition would be futile, because the statements alleged to be unadopted

rules are neither statements of the Department of Health (D epartment) or

the Board of Physical Therapy Practice (Board). Accordingly, this is a Final

Order of Dismissal.

A PPEARANCES

For Petitioner: Christopher Brooks, Qualified Representative

605 Chinquapin Road

Monticello, Florida 32344

For Respondent : Lynette Norr, Esquire

Marlene Katherine Stern, Esquire

Office of the Attorney General

Plaza Level 01

The Capitol

Tallahassee, Florida 32399 - 1050

S TATEMENT OF T HE I SSUE S

The issues to be presented for determin ation are whether the statements

alleged in the Petition and the Amended Petition are agency statements of

the Board meeting the definition of a rule in section 120.52, Florida Statutes,

and , if so, whether they have been adopted as rules through the rulem aking

process outlined in section 120.54.

P RELIMINARY S TATEMENT

On January 8, 2021, Patricia Brooks (Petitioner) filed the Petition at issue

in this case. The Petition identified the Board as the Respondent. The case

was assigned to the undersigned and is noticed for hearing to commence

February 25, 2021, by Zoom teleconferencing. Both parties waived the

requirement that the hearing be conducted within 30 days of filing the

Petition . Since the filing of the Petition, an Order to Show Cause was issued,

to w hich both parties have responded. The Order to Show Cause directed the

parties to show cause why the Petition should not be barred based upon the

resolution of Brooks v. De partment of Health , Case No. 18 - 0705RU ( Fla.

DOAH May 31, 2018), in which the same o r substantively similar statements

as those alleged in this case were alleged to be unadopted rules of the

Department as opposed to the Board, and in which Administrative Law

Judge Elizabeth McArthur found that the statements alleged to be unadopted

rules were statements of the Professional Resource Network (PRN).

On January 19, 2021, Respondent filed a Motion to Dismiss Petition for

Failure to State a Cause of Action on Which Relief Can be Granted, to which

Petitioner responded on January 27, 2021. Respon dent also filed a Request

for Amendment of Petition, and on January 29, 2021, Petitioner filed an

Amended Petition. Petitioner did not seek leave to file the Amended Petition

as required by Florida Administrative Code Rule 28 - 106.202. Finally, on

February 1, 2021, Respondent filed a Motion to Dismiss Amended Petition,

and on February 3, 2021, Petitioner filed a response to the Motion to Dismiss

Amended Petition, attaching as exhibits copies of Florida Administrative

Code Rule 64B17 - 7.001 (the BoardÔs discip linary guidelines), the transcript of

the probable cause meeting related to the probable cause finding for her

disciplinary proceeding in Case No. 20 - 5348, and a copy of PRNÔs Participant

Manual.

Petitioner also filed a Motion for Representation, request ing that

Christopher Brooks be allowed to serve as her Qualified Representative. The

motion is granted.

All reference s to Florida Statutes are to the current codification, unless

otherwise indicated.

In light of the disposition of this case based upon th e Petition, Amended

Petition, responses to the Order to Show Cause, and motions and responses

filed, the material facts necessary to reach a determination in this case are

either not in dispute or are determined by statute. Additional detail

regarding the Petition, Amended Petition, motions and responses are

provided in the Findings of Fact. For purposes of ruling on the Motion to

Dismiss Amended Petition, the allegations of fact (as opposed to expressions

of opinion or statutory construction) contained in the Petition and the

Amended Petition and its attached Administrative Complaint are accepted as

true. Altee v. Duval Cty. Sch. Bd., 990 So. 2d 1124, 1129 (Fla. 1st DCA 2008).

F INDINGS OF F ACT

1. Petitioner is a physical therapist licensed in the State of Florida.

2. Respondent is the Florida Board of Physical Therapy Practice, which is

established within the Division of Medical Quality Assurance of the

Department of Health. See § 20.43(2)(g)26., Fla. Stat . The duties generally

assigned to health care board s and the duties assigned to the Department are

contained in chapter 456, Florida Statutes, while those assigned to this Board

specifically are contained in chapter 486, Florida Statutes.

3. Petitioner is the subject of an Administrative Complaint filed by the

Department. The Administrative Complaint is docketed at the Division of

Administrative Hearings (DOAH) as Case No. 20 - 5348PL.

4. Petitioner alleges that certain statements made by PRN in a monitoring

contract are unadopted rules of the Board and the D epartment. Those alleged

unadopted rules are as follows:

(1) Adopting a policy through the DepartmentÔs

consultant Professional Resource Network (PRN)

under Section 456.076, Florida Statutes, to require

licensees with a previously diagnosed illness to

incu r substantial costs to be monitored for five

years by PRN without following proper rulemaking

authority.

(2) Adopting a policy through the DepartmentÔs

consultant PRN under section 456.076, Florida

Statutes, to require licensees with a previously

diagnosed illness to incur substantial costs and

seek an ÑAppropriateness to Exit EvaluationÒ from

a non - treating professional after treatment

completion without following proper rulemaking

authority.

(3) Adopting a policy through the DepartmentÔs

consultant PRN u nder Section 456.076, Florida

Statutes, to require licensees with a previously

diagnosed illness to incur substantial costs and

Peth [drug] test for five years without following

proper rulemaking authority.

5. In August of 2014, Petitioner removed herse lf from practice, and in

January 2015, entered the impaired practitionerÔs program. In April 2015,

Petitioner signed an agreement to have her aftercare monitored by PRN. A

copy of the monitoring agreement has not been provided in this case.

6. In March 2 018, PRN filed a complaint regarding Petitioner with the

Department.

7. On or about June 17, 2020, the Department filed Administrative

Complaint Case No. 2018 - 07401. The Administrative Complaint is the basis

for the proceeding in Department of Health v. B rooks , DOAH Case No. 20 -

5348PL. The factual allegations in the Administrative Complaint include the

following:

6. On or about April 6, 2015, Respondent entered

into a Five - Year Monitoring Contract (Contract)

with Professionals Resource Network (PRN),

requ iring Respondent to be regularly PEth tested.

7. During the term of the Contract, Respondent

expressed to PRN that she was financially unable

to continue the required testing.

8. Respondent requested an early termination of

the Contract from PRN.

9. PRN required Respondent to undergo an

Appropriateness to Exit Evaluation (Evaluation) if

she desired to terminate the Contract.

10. Respondent ceased performing the required

testing and did not submit to an Evaluation.

1 1 . On or about March 20, 2018, PRN t erminated

the Contract with Respondent for failure to comply

with the terms of the Contract without good cause.

8. Based on these and other allegations not relevant to this proceeding,

Petitioner is charged in the Administrative Complaint with failing to report

to the Board a guilty plea to driving under the influence within 30 days, in

violation of section 456.072(1)(x), and being terminated from an impaired

practitioner program without good cause, in violation of section

456.072(1)(hh).

9. Section 456.0 76 identifies the responsibilities of the Department with

respect to establishment of an impaired practitioner program. Pursuant to

the terms of section 456.076, the Department has contracted with PRN to

serve as a Ñconsultant.Ò Section 456.076(1)(a) defin es a consult as Ñan entity

who operates an approved impaired practitioner program pursuant to a

contract with the [ D ]epartment.Ò

10. The impaired practitioner program is a program Ñestablished by the

[D]epartment by contract with one or more consultants t o serve impaired and

potentially impaired practitioners for the protection of the health, safety, and

welfare of the public.Ò £ 456.076(1)(d), Fla. Stat.

11. Section 456.076(e) defines ÑimpairmentÒ as Ña potentially impairing

health condition that is the result of the misuse or abuse of alcohol, drugs, or

both, or a mental or physical condition that could affect a practitionerÔs

ability to practice with skill and safety.Ò

12. A participant in the program is Ña practitioner who is participating in

the im paired practitioner program by having entered into a participant

contract. A practitioner ceases to be a participant when the participant

contract is successfully completed or is terminated for any reason.Ò

§ 456.076(h), Fla. Stat. A participant contract i s Ña formal written document

outlining the requirements established by a consultant for a participant to

successfully complete the impaired practitioner program, including the

participantÔs monitoring plan.Ò £ 456.076(1)(i), Fla. Stat.

13. Section 456.076 (2) provides that the Department may retain one or

more consultants to operate its impaired practitioner program and outlines

the qualifications that consultants must have. Subsection (3) provides that

the terms and conditions for the impaired practitioner program must be

established by contract between the Department and the consultant(s) and

identifies the minimum requirements for the program. Those minimum

requirements include arranging for evaluation and treatment of impaired

practitioners when the cons ultant deems such evaluation and treatment is

necessary; acceptance of referrals; and monitoring recovery progress and

status of impaired practitioners to ensure that they are able to practice with

skill and safety. It is expressly required in section 456. 076(3)(c) that Ñ[s]uch

monitoring must continue until the consultant or department concludes that

monitoring by the consultant is no longer required for the protection of the

public or until the practitionerÔs participation in the program is terminated

for material noncompliance or inability to progress.Ò

14. Consultants do not directly evaluate, treat, or otherwise provide

patient care to participants in the program. § 456.076(3)(d), Fla. Stat.

15. The participant contract that an impaired practitioner signs is a

contract with the consultant and is not a contract with the Department or the

Board. Section 456.076(5) provides:

A consultant shall enter into a participant contract

with an impaired practitioner and shall establish

the terms of monitoring and shall include the terms

in a participant contract. In establishing the terms

of monitoring, the consultant may consider the

recommendations of one or more approved

evaluators, treatment programs, or treatment

providers. A consultant may modify the terms o f

monitoring if the consultant concludes, through the

course of monitoring, that extended, additional, or

amended terms of monitoring are required for the

protection of the health, safety, and welfare of the

public.

16. Generally, when a licensee has self - reported to an impaired

practitioner program and remains in compliance with the terms of his or her

contract, the matter remains between the licensee and the consultant.

§ 456.076(10), Fla. Stat. However, section 456.076(12)(a) provides that when

a partic ipant is terminated for Ñmaterial noncompliance with a participant

contract, inability to progress, or any other reason than completion of the

program,Ò the consultant is required to disclose to the Department all

information in its possession related to t he practitioner, and the disclosure is

considered a complaint within the meaning of section 456.073.

17. Section 456.076, as currently enacted, contains no rulemaking

authority for either the Department or the Board. 1

18. Petitioner alleges that the state ments contained in paragraph four are

unadopted rules of the Department and the Board. The statements are

requirements with which Petitioner had to comply under the terms of her

PRN contract, or monitoring agreement.

19. PetitionerÔs Amended Petition does not expressly allege that either the

Board or the Department approve or adopt the provisions contained in her

PRN contract alleged to be unadopted rules . She states that both the

Department and the Board are responsible for Ñreceiving the text of non - rule

statementsÒ (Amended Petition, ¥ 2); are Ñbeneficiaries of a contract between

1 Most of the rules associated with the impaired practitioner program have been repealed.

See Fla. Admin. Code Rs 64B31 - 10.002, .003, and .004 (repealed Mar. 30, 2014). However,

rule 64B31 - 10.001 was last amended on December 21, 2015, before the substanti al rewrite of

section 456.076 in 2017, when the specific rulemaking authority formerly contained in

section 476.076(1) was removed. It appears that this rule, which Petitioner cites, is no longer

authorized, but that is an issue for another day.

the Department and PRN to operate an impaired practitionersÔ program Ò (¶

7); Ñby statute and rule use and refer to the services of the consultant who

operates the impaired pract itionersÔ programÒ (¥ 8); and Ñbenefit from the use

of the PRN services for licensees involved in impairment situations.Ò (¥10). In

her response to the BoardÔs Motion to Dismiss Amended Petition, she

acknowledges that the Board is not responsible for the c reation of section

456.076; for the contents of a participant contract; or for the contract between

the Department and PRN. The crux of her complaint is that Ñthis program is

not a treatment program operated by the consultantÔs doctors and nurses,

[and] th ere is no rule or law requiring testing for 5 years, monitored

treatment for 5 years and an evaluation from a non - treating professional

when already under the care and treatment of a licensed treating

professional.Ò (¥ 19). In short, she does not like how the PRN program is

structured in general.

20. Petitioner acknowledges that the PRN contract or monitoring

agreement Ñwas not the result of board involvement.Ò

21. Through this proceeding, Petitioner seeks a final order declaring the

challenged statements invalid; and an award of costs and interest, and such

other orders as deemed necessary against the Department and its Board Ñfor

mandating license holders with a specific illness to be drug tested, monitored

by its consultant for a stated period and requir e evaluations from a non -

treating professional when already under the care of a licensed professional.

This includes but is not limited to non - rule regulatory fees incurred for

testing.Ò Petitioner also wants the Department and the Board to develop

rules f or the impaired practitioner program according to the intent of the

Legislature. Petitioner is seeking relief that is beyond the parameters of an

unadopted rule challenge. Given the current structure provided in section

456.0 76 , the remedy she seeks is bes t provided by the Legislature.

C ONCLUSIONS OF L AW

22. DOAH has jurisdiction over the subject matter and the parties of this

proceeding pursuant to section 120.56, Florida Statutes.

23. In this case, there are four preliminary issues that must be resolved

for Petitioner to prevail. First, Petitioner must demonstrate that she has

standing to bring this challenge regarding the alleged statements. Second,

Petitioner must show that she has filed this action against the proper party.

Third, Petitioner must alle ge and show how the statements identified in the

Amended Petition become agency statements. To do so, Petitioner must

demonstrate that the statements have been approved or adopted by

Respondent as its own. Fourth, Petitioner must show that this case is not

barred by the resolution in Brooks v. Dep ar t ment of Health , Case No. 18 -

0705RU ( Fla. DOAH May 31, 2018).

24. Should Petitioner overcome these hurdles, she would have to prove by

a preponderance of the evidence that the statements are rules as defined by

s ection 120.52(15). § 120.56(4)(b), Fla. Stat.

2 5 . Petitioner has standing to bring this proceeding. She is a licensee who

is facing disciplinary action for not complying with the provisions of her

contract with PRN. She has alleged that the statements whic h she alleges to

be agency statements are being applied in a manner that affects her

substantial interests.

2 6 . Section 120.56(4)(a) is the statutory vehicle in the Administrative

Procedure Act by which substantially affected persons may challenge an

agenc y statement that should have been adopted as a rule. Section 120.56(4)

provides in pertinent part:

(a) Any person substantially affected by an agency

statement that is an unadopted rule may seek an

administrative determination that the statement

violates s ection 120.54(1)(a). The petition shall

include the text of the statement or a description of

the statement and shall state facts sufficient to

show that the statement constitutes an unadopted

rule.

2 7 . While Petitioner has standing to bring this action, Respondent has

suggested, correctly, that she has brought the action against the wrong party.

The only respondent named in the Amended Petition is the Board. Only the

BoardÔs counsel is provided notice. While there are numerous references to

the Departmen t in the Petition and the Amended Petition, it is not a party to

the proceeding.

2 8 . It is likely that Petitioner brings this action against the Board instead

of the Department, because she has already brought an action challenging

these statements as una dopted rules against the Department and has been

unsuccessful in that endeavor. See Brooks v. DepÔt of Health, supra. Whether

she is foreclosed from bring ing this claim because of the disposition in that

proceeding will be discussed more fully below. Howev er, section 456.076 is

clear that the Department, and not the Board, has the responsibility to

contract with PRN or other consultants to implement an impaired

practitioner program. The Board has no role in that aspect of the statutory

scheme. Petitioner in sists that the Board is a proper party because it is the

Board that directed the Department to file the Administrative Complaint

currently pending against her.

2 9 . Petitioner misstates the process. Section 456.072 requires a probable

cause panel of the B oard, not the Board itself, to determine whether there is

probable cause to find a licensee in violation of the laws and/or rules

applicable to the licensee. § 456.073(2), (4), Fla. Stat. The members of a

probable cause panel who consider whether an Admini strative Complaint

should be filed can be either current or past members of the Board. Those

probable cause members who are current members of the Board will not

participate in final agency action when the case is presented for final agency

action, which h as yet to happen in this case. § 456.073(6), Fla. Stat.

30 . Petitioner also contends that the Board is Ñadmitting statements and

policies are not of the Board, rather the statements and policies of the

BoardÔs consultant.Ò (PetitionerÔs Response to Motion to Dismiss Petition).

Once again, section 456.076 provides that PRN is the DepartmentÔs

consultant, not the BoardÔs. Even assuming that PRN was a consultant of the

Board, the Petition does not allege how statements made by PRN become

statements of the Boa rd. In her response to the Motion to Dismiss the

Petition, Petitioner asserts that the requirements about which she complains

are from PRN policies and manuals, and that somehow, by the Board

pointing that out, these requirements become statements of the B oard. That

is simply not the case.

3 1 . Petitioner has named the wrong entity as a respondent in this case.

The statutory scheme is clear that while the Board has some interaction with

PRN during the licensing and regulatory process, none of those interacti ons

have been alleged in this case. The Board has not caused RespondentÔs injury

and cannot provide her any relief from the requirements of her contract. For

these reasons alone, it is appropriate to dismiss the proceeding against the

Board.

3 2 . Petitione r also must allege that the statements about which she

complains are statements of an agency as defined in section 120.52. She has

not done so.

3 3 . Section 120.54(1)(a) provides that Ñeach agency statement defined as a

rule by s. 120.52 shall be adopted by the rulemaking procedure provided by

this section as soon as feasible and practicable.Ò A rule is Ñeach agency

statement of general applicability that implements, interprets, or proscribes

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.Ò

( e mphasis added ) .

3 4 . The pivotal issue in this case is which entity is responsible for the

statemen ts Petitioner seeks to challenge as unadopted rules. In order to be

the subject of an unadopted rule challenge, the statements must be agency

statements. PRN is not an agency.

3 5 . An ÑagencyÒ for the purposes of chapter 120, is defined in section

120.52(1 ), as follows:

ÑAgencyÒ means the following officers or

governmental entities if acting pursuant to powers

other than those derived from the constitution:

(a) The Governor; each state officer and state

department, and each departmental unit described

in s. 20.04; the Board of Governors of the State

University System; the Commission on Ethics; the

Fish and Wildlife Conservation Commission; a

regional water supply authority; a regional

planning agency; a multicounty special district, but

only if a majority of its governing board is

comprised of nonelected persons; educational units;

and each entity described in chapters 163, 373, 380,

and 582 and s. 186.504.

(b) Each officer and governmental agency in the

state having statewide jurisdiction or jurisdiction

in more than one county.

(c) Each officer and governmental entity in the

state having jurisdiction in one county or less than

one county, to the extent they are expressly made

subject to this chapter by general or special law or

existing judicial decisio ns. (exclusions omitted).

3 6 . The Board is an agency, as a governmental agency in the state having

statewide jurisdiction. The Department is also an agency, as a state

department, but is not a party to this proceeding. PRN is not named as a

party but is the entity responsible for the statements Petitioner alleges are

unadopted rules. PRN is also not a state agency. ÑA private entity which

contracted to provide services for a state agency does not thereby become a

state agency itself.Ò Vey v. Bradford Unio n Guidance Clinic, Inc. , 399 So. 2d

1137, 1139 (Fla. 1st DCA 1981); see also First Quality Home Care, Inc. v.

Alliance for Aging, Inc., 14 So. 3d 1149, 1153 (Fla. 3d DCA 2009). Moreover,

the fact that PRN is considered an agent of the Department for purpos es of

tort liability is also not dispositive. Section 769.28 , Florida Statutes,

envisions a much broader definition of the term ÑagencyÒ than does chapter

120. Rubenstein v. Sarasota Cty. Pub. Hosp., 498 So .2d 1012, 1013 (Fla. 2d

DCA 1986).

3 7 . There is no real dispute that the statements at issue here originate

with PRN. It is not enough to allege that the Board and the Department

receive the statements or benefit from them. To meet the definition of a rule,

the statements must be the agencyÔs statement s, or affirmatively adopted as

its own. The statements about which Petitioner complains are not statements

of the Board and are not statements by any agency. They are statements of a

private entity.

3 8 . Petitioner must also show that this action is not ba rred by the

resolution in Brooks v. Department of Health. In that case, Petitioner filed an

unadopted rule challenge pursuant to section 120.56 against the Department

as opposed to the Board. Administrative Law Judge McArthur stated:

50. In similar contex ts, statements by an entity

contracting with an agency have not been

attributed to the agency so as to support a

challenge to the statements as unadopted rules,

because of the lack of allegations and proof that the

agency adopted those statements or at lea st

affirmatively reviewed and approved them. See ,

e .g., Carswell v. Fla. State Univ. Schools, Inc., et

al., Case No. 13 - 3388RU (Final Order of Dismissal,

Fla. DOAH Nov. 26, 2013) (charter schoolÔs student

Code of Conduct could not be challenged as an

unado pted rule by attribution to Florida State

University (FSU) through the contract between the

charter school and FSU as its sponsor; even though

the charter contract required that student

dismissals occur in accordance with the policies and

procedures in the charter schoolÔs Code of Conduct,

FSU could not be said to have adopted the Code as

its own); Fla. AssÔn for Child Care Mgmt., Inc. v.

Early Learning Coalition of Duval, et al., Case No.

08 - 1717RU (Fla. DOAH Aug. 26, 2009)(rejecting

attempted unadopted ru le challenge to a quality

rating improvement system developed by an Early

Learning Coalition (ELC), a non - profit corporation

providing school readiness services pursuant to a

grant agreement with the Agency for Workforce

Innovation (AWI); even though the c hallenged

system was part of the ELCÔs school readiness

program which was approved by AWI, the system

itself was not reviewed and approved by AWI, and

even if it had been, review and approval of an

ELCÔs school readiness program does not transform

that pro gram into an agency statement subject to

challenge as an unadopted rule); È

* * *

52. Petitioner also argued for attribution of the

Department of PRNÔs statements in its manuals

because a participantÔs non - compliance might be

raised by the Department as grounds for

disciplinary action.

53. Assuming for the sake of argument that a

participant did not comply with statements in

PRNÔs manuals, the actual chain of events required

by statute shows how attenuated the non -

compliance is from any agency action. Pu rsuant to

statute, the chain of events must be as follows:

First, PRN might utilize its manuals in some

fashion to establish the specific requirements for an

individualÔs participant contract; the practitioner

would then have to sign the participant contra ct in

order to become a participant in the impaired

practitioner program; then, pursuant to section

456.076(12)(b), if the participant was ultimately

terminated from the program by PRN because the

participant was found to be materially non -

compliant with t he terms of the participant

contract, PRN would be required to submit the

information to the Department and the submission

would be treated as a complaint under section

456.073; then, if, after the DepartmentÔs

investigation of the complaint, the case is

s ubmitted to a probable cause panel, and there is s

determination by the probable cause panel that

there is probable cause to believe there are grounds

to take disciplinary action, the Department might

prepare an administrative complaint to charge the

termi nated practitioner.

54. The disciplinary statute cited by Petitioner,

section 456.072(1)(hh), provides that the following

is grounds for disciplinary action:

Being terminated from an impaired

practitioner program that is overseen by a

consultant as desc ribed in s. 456.076, for

failure to comply, without good cause, with

the terms of the monitoring or participant

contract entered into by the licensee, or for

not successfully completing any drug

treatment or alcohol treatment program.

55. As a matter of l aw, any proposed agency action

by the Department, in the form of an

administrative complaint charging a practitioner

with Ñnon - complianceÒ in violation of section

456.072(1)(hh), could not be based on statements in

a consultantÔs manuals. The proposed agen cy action

would have to be based on the practitionerÔs non -

compliance, Ñwithout good cause,Ò with the terms of

the contract that the practitioner entered into in

order to become a participant in the impaired

practitioner program.

56. The result of a succe ssful unadopted rule

challenge is that Ñthe agency must immediately

discontinue all reliance upon the unadopted rule or

any substantially or similar statement as a basis

for agency action.Ò £ 120.56(4)(d), Fla. Stat. The

Department cannot be directed to di scontinue

reliance on PRNÔs statements in its manuals,

without Petitioner alleging and proving that the

Department is relying on PRNÔs statements in its

manuals as a basis for agency action. From this

perspective as well, it is clear that PetitionerÔs true

objection is to the terms of her participant contract

that she entered with PRN, an objection that

cannot be heard in an unadopted rule challenge

against the Department.

3 9 . There are two legal theories by which PetitionerÔs current challenge

could poss ibly be barred by the Brooks v. Department of Health decision: the

doctrines of res judicata and collateral estoppel. Both doctrines are based on

the premise that there should be some finality in decisions, and in the

administrative context, are generally referred to as the doctrine of

administrative finality. Pumphrey v. DepÔt of Child. & Fams., 292 So. 3d

1264, 1266 (Fla. 1st DCA 2020). As stated in Austin Tupler Trucking, Inc. v.

Hawkins , 377 So. 379, 681 (Fla. 1979), Ñ[t]here must be a terminal point in

every proceeding both administrative and judicial, at which the parties and

the public may rely on a decision as being final and dispositive of the rights

and issues involved therein.Ò

40 . In Topps v. State, 865 So. 2d 1253, 1254 - 55 (Fla. 2004), the Supr eme

Court of Florida identified the elements required for either res judicata or

collateral estoppel to apply, stating:

Res judicata (or claim preclusion) is one type of

procedural bar. Translated from the Latin, it

means Ña thing adjudicated.Ò See BlackÔ s Law

Dictionary 1312 (7 th ed. 1999). The doctrine of res

judicata bars relitigation in a subsequent cause of

action not only of claims raised, but also claims

that could have been raised. The idea underlying

res judicata is that if a matter has already be en

decided, the petitioner has already his or her day in

court, and for purposes of judicial economy, that

matter generally will not be reexamined again in

any court (except, of course, for appeals by right).

The doctrine of res judicata applies when four

identifies are present: (1) identity of the thing sued

for; (2) identify of the cause of action; (3) identity of

the persons and parties to the action; and

(4) identity of the quality of the persons for or

against whom the claim is made.

The doctrine of c ollateral estoppel (or issue

preclusion), also referred to as estoppel by

judgment, is a related but different concept. In

Florida, the doctrine of collateral estoppel bars

relitigation of the same issues between the same

parties in connection with a diffe rent cause of

action. (Footnotes and citations omitted) .

4 1 . Neither doctrine bars the claim in this proceeding, because both

require identity of parties, which is lacking. While Petitioner is bringing

essentially the same cause of action, i.e., an unado pted rule challenge with

respect to the same alleged agency statements, she brought the prior action

against the Department, whereas this time she seeks to attribute the

statements to the Board.

4 2 . However, examination of the doctrines is relevant, becau se the

undersigned has determined the Board is not a proper party to this

proceeding, given that section 456.076 grants the Board no authority

regarding the implementation of the impaired practitionersÔ program. If this

case were dismissed with leave to am end to substitute the proper party, any

attempt to substitute the Department for the Board would be barred by res

judicata. While on its face, the concept of res judicata does not bar the current

action, for all practical purposes , the concept makes any at tempt to amend

the Amended Petition further a futility.

4 3 . Finally, the statements at issue are not statements of the Board or of

the Department. They are statements made by PRN, who is not an agency.

Because section 120.52 defines an unadopted rule as an Ñagency statement,Ò

statements made in a participant contract between a licensee and the

consultant, PRN, are simply not agency statements subject to the rulemaking

process. Accordingly, the Amended Petition does not state a cause of action

under section 120.56. 2

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that the Amended Petition to Determine the Invalidity of Existing

ÑNon - RuleÒ Agency Policy , filed by Petitioner Patricia Brooks , be dismissed

without further leav e to amend.

D ONE A ND O RDERED this 10th day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of February , 2021 .

C OPIES F URNISHED :

Patricia Brooks Louise St. Laurent, General Counsel

605 Chinquapin Road Department of Health

Monticello, Florida 32344 Bin C65

4052 Bald Cypress Way

Marlene Katherine Stern, Esquire Tallahassee, Florida 32399 - 1703

Office of the Attorne y General

Plaza Level 01 Christophe r Brooks

The Capitol 605 Chinquapin Road

Tallahassee, Florida 32399 - 1050 Monticello, Florida 32344

2 It is no ted that with respect to the disciplinary proceedings, Petitioner remains free to

challenge whether her dismissal from the program was Ñwithout good cause.Ò

Allen Hall, Executive Director Lynette Norr, Esquire

Department of Health Office of the Attorney General

4052 Bald Cypress Way , Bin C05 Plaza Level 01

Tallahassee, Florida 32399 - 3255 The Capitol

Tallahassee, Florida 32399 - 1050

Ernest Reddick, Program Administrator

Anya Grosenbaugh Ken Plante, Coordinator

Florida Admin istrative Code & Register Joint Administrative Procedure Committee

Department of State Room 6 80, Pepper Bui lding

R. A. Gray Building 111 West Madison Street

500 South Bronough Street Tallahassee, Florida 32399 - 1400

Tallahassee, Florida 32399 - 0250

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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

go verned by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be review ed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.