99-005337RP Florida Medical Association, Florida Osteopathic Medical Association, Florida Academy Of Family Physicians, Florida Chapter, American College Of Physicians, American Society Of Internal Medicine, Florida Chapter Of American College Of Surgeons, Florida S vs. Department Of Health, Board Of Nursing Status: Closed DOAH Final Order on Monday, March 13, 2000.

Summary: The Board of Nursing did not have the authority to promulgate a rule allowing nurses to prescribe controlled substances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA MEDICAL ASSOCIATION; )

FLORIDA OSTEOPATHIC MEDICAL )

ASSOCIATION; FLORIDA ACADEMY OF )

FAMILY PHYSICIANS; FLORIDA CHAPTER, )

AMERICAN COLLEGE OF PHYSICIANS; )

AMERICAN SOCIETY OF INTERNAL )

MEDICINE; FLORIDA CHAPTER OF THE )

AMERICAN COLLEGE OF SURGEONS; )

FLORIDA SURGICAL SOCIETY; FLORIDA )

PSYCHIATRIC SOCIETY; FLORIDA )

ACADEMY OF PAIN MEDICINE; FLORIDA )

SOCIETY OF ANESTHESIOLOGISTS; )

FLORIDA SOCIETY OF OPHTHALMOLOGY; )

FLORIDA OB-GYN SOCIETY; and FLORIDA )

COLLEGE OF EMERGENCY PHYSICIANS, )

)

Petitioners, )

)

vs. ) Case No. 99-5337RP

)

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Respondent, )

)

and )

)

FLORIDA NURSES ASSOCIATION, )

AND FLORIDA ASSOCIATION OF )

NURSE ANESTHETISTS, )

)

Intervenors. )

_____________________________________)

FINAL ORDER

This case was scheduled for a hearing to be held on

January 18, 2000. Before that date Petitioners and Respondent,

the original parties, filed a Joint Motion for Cancellation of

Hearing and Consideration of Stipulated Facts and Proposed Final

Orders. This motion sought permission for the parties to present

the case on a stipulation of facts with attached exhibits. The

joint motion was granted. The case has been considered on

stipulated facts and Respondent's Exhibits A through D and F

through H. The case was considered by Charles C. Adams,

Administrative Law Judge.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

John M. Knight, Esquire

113 East College Avenue

Tallahassee, Florida 32301

Morton J. Morris, J.D., D.O.

Post Office Box 291690

Davie, Florida 33329-1690

For Respondent: Lee Ann Gustafson

Assistant Attorney General

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Intervenor Florida Nurses

Association: Cynthia A. Mikos, Esquire

Cynthia A. Mikos, P.A.

205 North Parsons Avenue, Suite A

Brandon, Florida 33510-4515

For Intervenor Florida Association

of Nurse Anesthetists:

James W. Linn, Esquire

Deborah D. Holton, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Is proposed rule 64B9-4.009 of the Board of Nursing an

invalid exercise of delegated legislative authority? Section

120.52(8), Florida Statutes.

PRELIMINARY STATEMENT

On December 20, 1999, Petitioner, Florida Medical

Association, et al. (FMA), pursuant to Section 120.56, Florida

Statutes, filed a petition to determine the validity of proposed

rule 64B9-4.009 (the proposed rule). As grounds for its

challenge FMA alleged that the Board of Nursing (the Board) had

exceeded its grant of rule-making authority in the attempt to

promulgate the proposed rule; that the proposed rule is arbitrary

and capricious; and that the proposed rule is not supported by

competent substantial evidence.

On December 22, 1999, Sharyn L. Smith, Chief Judge, Division

of Administrative Hearings, assigned the case to Charles C.

Adams, Administrative Law Judge, with the Division of

Administrative Hearings, for conduct of a formal hearing, having

determined, upon review, that the petition challenging the

proposed rule was in compliance with the requirements of Section

120.56(2), Florida Statutes.

As stated, the final hearing scheduled for January 18, 2000,

was cancelled in lieu of the presentation of the case upon

stipulated facts, with supporting exhibits.

Florida Nurses Association (FNA) and Florida Association of

Nurse Anesthetists (FANA) petitioned to intervene. FNA and FANA

were allowed to intervene subject to the stipulation of facts by

FMA and the Board as supported by the Board's exhibits. FNA and

FANA intervened in support of the proposed rule.

All parties were allowed to file proposed final orders on or

before February 4, 2000. FMA, the Board, and FANA met that

deadline. FNA submitted a proposed final order on February 7,

2000. Nonetheless, all proposed final orders have been

considered in preparing the final order.

FINDINGS OF FACT

The Stipulated Facts

1. The Joint Practice Committee (the Committee) was created

by Section 464.003(3)(c), Florida Statutes. The statute charges

the Committee to approve those acts of medical diagnosis and

treatment, prescription, and operation that may be performed by

Advance Registered Nurse Practitioners (ARNPs) under the general

supervision of a practitioner licensed under Chapters 458, 459 or

466, Florida Statutes, within the framework of standing

protocols.

2. On October 24, 1998, the Committee met to consider

whether prescription of controlled substances was an appropriate

medical act to be approved for ARNPs under proper protocol. [See

minutes of meeting, Exhibit A.] The Committee was asked to

review the report by the Statewide Task Force Committee (a

separate committee) mandated by the 1996 legislature. Members of

the Committee requested additional information before voting on

the issues, including the following:

(1) A summary of votes taken at the

Statewide Task Force meetings

(2) Testimony by physician members of the

Task Force Committee on the safety of

prescription of controlled substances by

ARNPs.

(3) ARNPs protocols, including samples from

practicing Florida ARNPs and protocol

requirements from other states.

(4) National information on ARNP

prescriptive practice for controlled

substances, including the annual report from

the Nurse Practitioner Journal, information

on prescriptive practice from the National

Council of State Boards of Nursing, and a

state-by-state summary of prescriptive

practices.

(5) Pharmacology syllabi from medical

schools and ARNP programs.

(6) National Practitioner Data Bank

information on safe practice.

(7) Copy of correspondence from the state

pharmacy association.

(8) DEA Handbook for Mid-Level Providers.

3. On December 8, 1998, the Committee met to consider the

prescriptive authority and to review information requested at the

October 24, 1998 meeting. [See Exhibit C, minutes of the

December 8, 1998 meeting and Composite Exhibit D, materials

provided to the Committee]. The Committee also took testimony

from persons attending the Committee meeting. After review of

the material and consideration of the testimony, the Committee

voted as follows:

(1) To request the Department of Health to

seek a written opinion from the Attorney

General on the question: Can the prescribing

of controlled substances by Nurse

Practitioners under protocol be authorized by

rule or must there be a legislative change.

(2) To authorize prescription of schedule

II-V controlled substances by ARNPs under

protocol.

(3) To require continuing education on

prescribing, record-keeping, discouraging

diversion of dangerous drugs approved by the

Board of Nursing prior to prescribing

controlled substances under protocol.

4. On January 25, 1999, the Department of Health requested

an opinion from the Attorney General on the following questions:

(1) Whether the Board may adopt a rule

pursuant to section 464.003(3), Florida

Statutes, authorizing the prescription of

controlled substances by Advanced Registered

Nurse Practitioners without conflicting with

the prescribing requirements found in chapter

893, Florida Statutes.

(2) Whether it is necessary to obtain a

legislative change to add Advanced Registered

Nurse Practitioners to the list of

'practitioners' authorized to prescribe

controlled substances under chapter 893,

Florida Statutes, prior to adoption of a rule

that would allow prescriptions of controlled

substances by Advanced Registered Nurse

Practitioners?

5. At its regularly scheduled Board meeting on April 14,

1999, the Board voted to proceed with promulgation of a rule to

implement the decision by the Committee.

6. On May 17, 1999, the Attorney General's Office responded

to the Department of Health by stating that a formal opinion

would not be given.

7. In Volume 25, Number 21 of the Florida Administrative

Weekly, which was issued May 28, 1999, the Board published its

notice of development of proposed rule 64B9-4.009. No rule

development hearing was requested.

8. The Board set a rule workshop for June 26, 1999, to

discuss changes to Chapter 64B9-4, Florida Administrative Code.

At the rule workshop, the Board received a letter dated June 14,

1999, from the FMA, presented to the Board, containing written

objections to proposed rule 64B9-4.009.

9. On June 25, 1999, the Secretary for the Department of

Health advised the Board that the Department's General Counsel

would be preparing a legal opinion on whether current law would

allow the rule to be adopted.

10. On July 23, 1999, General Counsel for the Department of

Health issued his legal opinion to the Secretary that absent

amendment to Chapter 893, Florida Statutes, neither the Joint

Practice Committee nor the Board of Nursing can authorize ARNPs

to prescribe controlled substances.

11. In Volume 25, Number 29 of the Florida Administrative

Weekly, which was issued July 23, 1999, the Board published its

notice of proposed rule 64B9-4.009. The rule hearing was set for

October 12, 1999. As voted by the Committee, the rule provides

that an ARNPs' prescriptive authority includes the prescription

of Schedule II, III, IV, and V controlled substances after

appropriate continuing education.

12. On August 17, 1999, the Joint Administrative Procedures

Committee issued a letter to the attorney for the Board

commenting that the proposed rule appears to contravene Section

893.05, Florida Statutes.

13. On September 25, 1999, the Committee held a telephone

conference. (See Exhibit F, Joint Committee Minutes, Conference

call September 25, 1999.) The Committee declined to reconsider

the decisions made at the December 1998 meeting.

14. On October 12, 1999, a public hearing requested by FMA

was held, at which the Board accepted written and oral testimony.

(See Exhibit G, the transcript of the public hearing and

Composite Exhibit H, the written comments provided on or before

the date of the public hearing including a letter dated

October 11, 1999, from the FMA and numerous specialty medical

societies presenting written objections to the rule.)

15. On December 8, 1999, the Board held an additional

public hearing to consider the transcript of rule hearing on the

proposed rule. The Board voted to proceed with promulgation of

the proposed rule.

Other Facts Agreed Upon

16. The Board admits for purposes of consideration of this

case that FMA et al. have standing to bring this rule challenge.

17. The only state agency affected is the Board, 4080

Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The

Board is responsible for the administration of Chapter 464,

Florida Statutes, and has implemented its provisions, in part,

through the adoption of rules set forth in Chapter 64B9, Florida

Administrative Code.

Facts Related to Standing

18. The respective parties have not contested the veracity

of the factual statements pled concerning standing of the

respective parties. Therefore, it is accepted that the factual

information concerning the organizations and their purposes, as

pled, are accurate for fact-finding purposes. Those facts as

pled are as follows:

A. The only state agency affected is

Respondent, State of Florida, Department of

Health, Florida Board of Nursing ("the

Board"), 4080 Woodcock Drive, Suite 202,

Jacksonville, Florida 32207. The Department

and the Board are responsible for the

administration of Chapter 464, and have

implemented its provisions in part through

the adoption of rules set forth in Chapter

64B9, Florida Administrative Code.

B. The address of the Florida Medical

Association (FMA) is 113 East College Avenue,

Tallahassee, Florida 32301. The FMA is

organized and maintained for the benefit of

the approximately 16,000 licensed Florida

physicians who comprise its membership. One

of the primary purposes of the FMA is to act

on behalf of its members by representing

their common interests before the various

governmental entities of the State of

Florida, including the Department of Health

and its Boards.

C. The address of the Florida Osteopathic

Medical Association (FOMA) is 2007 Apalachee

Parkway, Tallahassee, Florida. The FOMA is

organized and maintained for the benefit of

the approximately 1,800 licensed Florida

osteopathic physicians who comprise its

membership. One of the primary purposes of

the FOMA is to act on behalf of its members

by representing their common interests before

the various governmental entities of the

State of Florida, including the Department of

Health and its Boards.

D. The address of the Florida Academy of

Family Physicians (FAFP) is 6720 Atlantic

Boulevard, Jacksonville, Florida 32211. FAFP

is organized and maintained for the benefit

of the approximately 3,800 licensed Florida

family physicians who comprise its

membership. One of the primary purposes of

the FAFP is to act on behalf of its members

by representing their common interests before

the various governmental entities of the

State of Florida, including the Department of

Health and its Boards.

E. The address of the Florida Chapter,

American College of Physicians - American

Society of Internal Medicine (FCACP-ASIM) is

2589 Park Street, Jacksonville, Florida

32204. FCACP-ASIM is organized and

maintained for the benefit of the

approximately 4,500 licensed Florida

internists who comprise its membership. One

of the primary purposes of the FCACP-ASIM is

to act on behalf of its members by

representing their common interests before

the various governmental entities of the

State of Florida, including the Department of

Health and its Boards.

F. The address of the Florida Chapter,

American College of Surgeons (FC-ACS) is 2589

Park Street, Jacksonville, Florida 32204.

FC-ACS is organized and maintained for the

benefit of the approximately l,000 licensed

Florida surgeons who comprise its membership.

One of the primary purposes of the FC-ACS is

to act on behalf of its members by

representing their common interests before

the various governmental entities of the

State of Florida, including the Department of

Health and its Boards.

G. The address of the Florida Surgical

Society (FSS) is Post Office Box 536544,

Orlando, Florida 32853. FSS is organized and

maintained for the benefit of the

approximately 200 licensed Florida surgeons

who comprise its membership. One of the

primary purposes of the FSS is to act on

behalf of its members by representing their

common interests before the various

governmental entities of the State of

Florida, including the Department of Health

and its Boards.

H. The address of the Florida Psychiatric

Society (FPS) is 524 East Park Avenue,

Tallahassee, Florida 32301. The FPS is

organized and maintained for the benefit of

the approximately 800 licensed Florida

psychiatrists who comprise its membership.

One of the primary purposes of the FPS is to

act on behalf of its members by representing

their common interests before the various

governmental entities of the State of

Florida, including the Department of Health

and its Boards.

I. The address of the Florida Academy of

Pain Medicine (FAPM) is 335 Beard Street,

Tallahassee, Florida 32303. The FAPM is

organized and maintained for the benefit of

the approximately 100 licensed Florida pain

management physicians who comprise its

membership. One of the primary purposes of

the FAPM is to act on behalf of its members

by representing their common interests before

the various governmental entities of the

State of Florida, including the Department of

Health and its Boards.

J. The address of the Florida Society of

Anesthesiologists (FSA) is 355 Beard Street,

Tallahassee, Florida 32301. The FSA is

organized and maintained for the benefit of

the approximately 1,800 licensed Florida

anesthesiologists who comprise its

membership. One of the primary purposes of

the FSA is to act on behalf of its members by

representing their common interests before

the various governmental entities of the

State of Florida, including the Department of

Health and its Boards.

K. The address of the Florida Society of

Ophthalmology (FSO) is 1133 West Morse

Boulevard, Suite 201, Winter Park, Florida

32789. The FSO is organized and maintained

for the benefit of the approximately 400

licensed Florida ophthalmologists who

comprise its membership. One of the primary

purposes of the FPS is to act on behalf of

its members by representing their common

interests before the various governmental

entities of the State of Florida, including

the Department of Health and its Boards.

L. The address of the Florida Ob-Gyn Society

(FOGS) is 355 Beard Street, Tallahassee,

Florida 32303. The FOGS is organized and

maintained for the benefit of the

approximately 700 licensed Florida ob-gyns

who comprise its membership. One of the

primary purposes of the FOGS is to act on

behalf of its members by representing their

common interests before the various

governmental entities of the State of

Florida, including the Department of Health

and its Boards.

M. The address of the Florida College of

Emergency Physicians (FCEP) is 3717 South

Conway Road, Orlando, Florida 32812. The

FCEP is organized and maintained for the

benefit of the approximately 800 licensed

Florida emergency medicine physicians who

comprise its membership. One of the primary

purposes of the FCEP is to act on behalf of

its members by representing their common

interests before the various governmental

entities of the State of Florida, including

the Department of Health and its Boards.

N. Intervenor, Florida Nurses Association

(FNA), is a professional association located

at 1235 East Concord Street, Orlando, Florida

32803-5403 representing over 7,000 Registered

nurses (RNs) licensed by the State of

Florida, of which more than 1,000 are

certified as Advanced Registered Nurse

Practitioners (ARNPs).

O. FNA's members are directly regulated by

the Respondent and substantially affected by

proposed rule 64B9-4.009, which grants

additional prescriptive authority to certain

ARNPs under protocol with licensed

physicians.

P. On behalf of its members, FNA serves as a

professional advocate before several

governmental bodies, including the Board, and

actively participated in support of the rule-

making process which produced proposed rule

64B9-4009.

Q. Intervenor, Florida Association of Nurse

Anesthetists, is a Florida nonprofit

corporation and professional organization

representing the legal, legislative, and

professional practice interests of more than

1500 Certified Registered Nurse Anesthetists

(CRNAs) practicing throughout Florida, all of

whom are Advanced Registered Nurse

Practitioners (ARNPs). The address of the

Florida Association of Nurse Anesthetists is

Post Office Box 150127, Altamonte Springs,

Florida 32715-0127.

R. CRNAs are expressly authorized by Florida

law to order and administer anesthetic

agents. Nearly all the anesthetic agents

utilized by CRNAs are controlled substances.

S. Under current law, Florida CRNAs cannot

prescribe controlled substances, and are

unable to obtain a registration number from

the United States Drug Enforcement

Administration (DEA). A DEA registration

number is a prerequisite to prescribing

controlled substances. The proposed rule

would permit Florida CRNAs to prescribe

controlled substances, and obtain a DEA

registration number. The ability to

prescribe controlled substances would have a

direct impact on the practice of Florida

CRNAs, in that it would allow CRNAs to

prescribe anesthetic agents and post-

operative medications for patients.

The Proposed Rule

64B9-4.009 Functions of the Advanced

Registered Nurse.

(1) All categories of Advanced Registered

Nurse Practitioner may perform functions

listed in Section 464.012(3), Florida

Statutes. The scope of practice for all

categories of ARNPs shall include those

functions which the ARNP has been educated to

perform including the monitoring and altering

of drug therapies, and initiation of

appropriate therapies, according to the

established protocol and consistent with the

practice settings.

(2) Advanced Registered Nurse Practitioners'

prescriptive authority includes the

prescription of Schedule II, III, IV and V

controlled substances under appropriate

protocol. Advanced Registered Nurse

Practitioners may prescribe controlled

substances only after the Advanced Registered

Nurse Practitioner demonstrates completion of

a Board-approved course in prescribing

controlled substances. The Board approves

'Clinical, Legal, & Ethical Issues in

Prescribing Abusable Drugs,' sponsored by the

University of South Florida College of

Medicine, Courses meeting the following

criteria will also be approved:

(a) The course must consist of 22 contact

hours of formal classroom instruction;

(b) The course must include the following

education objectives;

1. understand basic pharmacokinetic

principles relating to pharmacological

agents.

2. describe basic pharmacology of drugs

subject to abuse, including opiates,

sedative-hypnotics, psychotropic agents,

steroids and stimulants.

3. assess the need for and proper use of

drugs subject to abuse in managing both acute

and/or chronic pain or mood disorders.

4. achieve an improved understanding of drug

abuse, drug dependence and addiction.

5. identify the legal basis of ration and

state drug control policies.

6. discuss record keeping, enforcement

agency practices and problem avoidance.

Specific Authority 464.003 , 464.006, 464.012,

Florida Statutes. Law implemented 464.003 ,

464.012, Florida Statutes.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this

proceeding pursuant to Sections 120.52, 120.56, 120.569 and

120.57, Florida Statutes. Authority for determining the alleged

invalidity of proposed rule 64B9-4.009 is provided in Section

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

21. As anticipated in Section 120.56(2)(a), Florida

Statutes, the petition challenging the proposed rule states with

particularity the objections to the proposed rule and the reasons

why the proposed rule is alleged to be an invalid exercise of

delegated legislative authority.

22. The grounds for challenge are in accordance with

Section 120.52(8)(b),(e) and (f), Florida Statutes, which state

in pertinent part:

* * *

(b) The agency has exceeded its grant of

rule making authority, citation to which is

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

* * *

(e) The rule is arbitrary or capricious;

(f) The rule is not supported by competent

substantial evidence . . .

23. By virtue of the prehearing stipulation entered into

between the FMA and the Board, which binds FNA and FANA on the

presentation of stipulated facts, FMA has borne the burden of

going forward with the proof. Likewise, the presentation of the

case through the prehearing stipulation with stipulated facts and

attached exhibits constitutes the attempt by the Board to prove

by a preponderance of the evidence that the proposed rule is not

an invalid exercise of delegated legislative authority as to the

objections raised in the petition. Section 120.56(2)(a), Florida

Statutes.

FMA et al.'s Standing

24. Although FMA, et al. and the Board had agreed not to

contest FMA, et al.'s standing to challenge the proposed rule,

this did not preclude consideration of that standing as a matter

of law. FANA through its proposed final order has questioned

FMA, et al.'s standing to challenge the promulgation of the

proposed rule. FANA asserts that the Petitioners are not

substantially affected persons who may seek the administrative

determination of the invalidity of the proposed rule. In

support, FANA cites to Board of Optometry v. Society of

Ophthalmology , 538 So. 2d 878 (Fla. 1st DCA 1989). In that case

the Society of Ophthalmology (the Society) had petitioned in a

rule challenge case against the actions of the Board of Optometry

as being inconsistent with the expectations in Sections 463.0055,

Florida Statutes (1987). A determination had been made in the

final hearing that the Society had sufficient standing to

challenge the rule-making process of the Board of Optometry, as

substantially affected by that process. The statute and rule-

making process engaged in by the Board of Optometry involved the

opportunities for certain optometrists licensed in Florida to

gain certification to administer topical ocular drugs in the

diagnosis and treatment of the human eye. In the final order it

was determined that the Society gained standing by virtue of the

manner in which the Board of Optometry had conducted rule-making

in contravening the enabling legislation found at Section

463.0055, Florida Statutes (1987). On appeal in Board of

Optometry , supra , the court determined that the Society lacked

standing to bring the rule challenge in that Section 463.0055,

Florida Statutes (1987). created an opportunity for licensed and

certified optometrists to independently administer topical ocular

drugs in the diagnosis and treatment of the human eye, a practice

previously reserved to allopathic and osteopathic physicians

practicing ophthalmic medicine. The court in denying standing

rejected the notion that the allopathic and osteopathic

physicians who practiced a similar form of health care in

relation to the use of topical ocular drugs had any stake in the

outcome of the Board of Optometry's rule-making decisions

pertaining to its licensees, practicing optometrists. Having

determined that the allopathic and osteopathic physicians did not

have requisite standing to challenge the Board of Optometry in

its rule-making as a threshold matter, it was unavailable to the

challengers to support their claim of standing by specific proof

designed to convince the fact-finder in the rule challenge case

below, that the Board of Optometry had acted ultra vires in the

rule promulgation process.

25. Here both Sections 464.003(3)(c) and 464.012(3),

Florida Statutes (1999), recognize the role which physicians

licensed in accordance with Chapters 458 and 459, Florida

Statutes, play in the supervision of ARNPs in the framework of

standing protocols where drugs are prescribed by the ARNPs.

Unlike the optometrists in Board of Optometry , supra , ARNPs do

not have exclusive authority in providing health care in the

process of prescribing medications. The proposed rule

contemplates a role by the physicians which is both real and

immediate. Physicians are affected by the proposed rule. That

affect is substantial. The opportunity to participate or to

decline participation with ARNPs in practices for prescribing

controlled substances does not alter the fact that those

physicians who would participate are substantially affected by

the proposed rule. For them the consequences of the proposed

rule are not a matter of speculation or conjecture. By

comparison to the physicians involved in ophthalmologic medicine

described in Board of Optometry , supra , the physicians

contemplated by the proposed rule have a vital role to play in

the process wherein ARNPs are allowed to prescribe medications.

The physicians practicing ophthalmologic medicine under terms

described in Board of Optometry , supra , had no part to play in

the certification of optometrists to administer topical ocular

drugs and the subsequent practice by the optometrists in

diagnosing and treating patients by the use of topical ocular

drugs. FMA et al. have established their standing to challenge

the promulgation of the proposed rule as substantially affected

persons.

Statutory Construction as a Means to Determine

the Limits of Rule-Making Authority

26. Among its challenges, FMA claims that the Board

exceeded its grant of rule-making authority in promulgating the

proposed rule. Sections 120.52(8)(b) and 120.536(1), Florida

Statutes (1999). In determining the limits of rule-making

authority granted the Board, it is appropriate to engage in

statutory construction, specifically, it is appropriate to

compare the language in Sections 464.003(3)(c) and 464.012(3),

Florida Statutes, to that found in Chapter 893, Florida Statutes.

Sections 893.02(18) and 893.03 through 893.05, Florida Statutes,

discuss those disciplines which have the opportunity to prescribe

Schedule II through V controlled substances. The dispute

concerns the ability of ARNPs to prescribe control substances

under Schedules II through V. FMA claims that ARNPs are

prohibited from prescribing controlled substances by Chapter 893,

Florida Statutes, effectively denying ARNPs the opportunities to

prescribe Schedule II through V controlled substances under

authority set forth in Chapter 464, Florida Statutes.

27. The s tatutes at issue state in pertinent part:

464.003(3)(c)

'Advanced or specialized nursing practice'

means, in addition to the practice of

professional nursing, the performance of

advanced-level nursing acts approved by the

board which, by virtue of postbasic

specialized education, training, and

experience, are proper to be performed by an

advanced registered nurse practitioner.

Within the context of advanced or specialized

nursing practice, the advanced registered

nurse practitioner may perform acts of

nursing diagnosis and nursing treatment of

alterations of the health status. The

advanced registered nurse practitioner may

also perform acts of medical diagnosis and

treatment, prescription , and operation which

are identified and approved by a joint

committee composed of three members appointed

by the Board of Nursing, two of whom shall be

advanced registered nurse practitioners;

three members appointed by the Board of

Medicine, two of whom shall have had work

experience with advanced registered nurse

practitioners; and the secretary of the

department or the secretary's designee.

. . . The Board of Nursing shall adopt rules

authorizing the performance of any such acts

approved by the joint committee. Unless

otherwise specified by the joint committee,

such acts shall be performed under the

general supervision of a practitioner

licensed under chapter 458, chapter 459, or

chapter 466 within the framework of standing

protocols which identify the medical acts to

be performed and the conditions for their

performance.

(Emphasis added.)

464.006

Authority to Make Rules.--The Board of

Nursing has authority to adopt rules pursuant

to ss. 120.536(1) and 120.54 to implement the

provisions of this chapter conferring duties

upon it.

464.012(3)

An advanced registered nurse practitioner

shall perform those functions authorized in

this section within the framework of an

established protocol. A practitioner

currently licensed under chapter 458, chapter

459 or chapter 466 shall maintain supervision

for directing the specific course of medical

treatment. Within the established framework,

an advanced registered nurse practitioner

may:

(a) Monitor and alter drug therapies.

* * *

(c) Perform additional functions as may be

determined by rule in accordance with s.

464.003(3)(c).

* * *

893.02(18)

'Practitioner' means a physician licensed

pursuant to chapter 458, a dentist licensed

pursuant to chapter 466, a veterinarian

licensed pursuant to chapter 474, an

osteopathic physician licensed pursuant to

chapter 459, a naturopath licensed pursuant

to chapter 462, or a podiatric physician

licensed pursuant to chapter 461, provided

such practitioner holds a valid federal

controlled substance registry number.

893.04(1 )

A pharmacist, in good faith and in the course

of professional practice only, may dispense

controlled substances upon a written or oral

prescription of a practitioner, under the

following conditions:

* * *

893.05(1)

A practitioner, in good faith and in the

course of his or her professional practice

only, may prescribe, administer, dispense,

mix, or otherwise prepare a controlled

substance, or the practitioner may cause the

same to be administered by a licensed nurse

or an intern practitioner under his or her

discretion and supervision only. . . .

29. Section 893.03, Florida Statutes, identifies the

propriety of using Schedule II through V controlled substances

for medical purposes in the treatment of patients.

30. It is clear from a reading of t he provisions within

Chapter 893, Florida Statutes, that ARNPs are not among the

practitioners who have the authority to prescribe Schedule II

through V controlled substances. They may only administer those

controlled substances.

31. Chapter 464, Flor ida Statutes, in the relevant sections

makes no reference to controlled substances in discussing the

opportunities ARNPs have to prescribe drugs.

32. While both statutes are designed to identify those

practitioners who may prescribe drugs, Chapter 893 addresses a

specific class of drugs, controlled substances, and Chapter 464

generally addresses prescribing without delineating the drugs

which ARNPs may prescribe under general supervision and pursuant

to established protocols. Although found in different statutes,

the laws have the same basic purpose. That purpose is to

identify opportunities which licensed health care professionals

have for prescribing drugs. To counter the argument by FMA

concerning the perceived limiting effect of Chapter 893 on ARNPs'

rights to prescribe, the Board, FNA, and FANA argue that Chapter

464, a more recent statute, would allow ARNPs to prescribe

controlled substances as the proposed rule contemplates.

33. In construing Chapters 464 and 893, Florida Statutes,

attention has been paid to the primary duty to give effect to

legislative intent even at the expense of a literal

interpretation, should that interpretation lead to an

unreasonable result. See Radio Tel. Communications. Inc. v.

Southeastern Tel. Co. , 170 So. 2d 577 (Fla. 1964). In pursuing

the appropriate interpretation to be given Chapters 464 and 893,

Florida Statutes, attention has been devoted to determining the

purpose of the legislature in passing those acts. See Tyson v.

Lanier , 156 So. 2d 833, (Fla. 1963).

34. In construing Chapters 464 and 893, an attempt has been

made to harmonize the statutes in a manner that gives effect to

both, presuming that the legislature passed Chapter 464 with the

knowledge of the prior existence of Chapter 893. In construing

the two statutes, it is in recognition that courts disfavor a

construction that would cause Chapter 464 to be read in a manner

which repeals by implication the limits Chapter 893 places on the

class of practitioners allowed to prescribe controlled

substances, unless no other reasonable construction can be given

than to perceive Chapter 464 as constituting a repeal of those

limitations. In construing Chapters 464 and 893, it is in

recognition that Chapter 893 is more specific in describing the

class of drugs under discussion, controlled substances, when

compared to Chapter 464, which speaks of the act of prescribing

without designating the class of drugs. It is a general

reference to drugs. Absent the ability to reconcile the

expectations in Chapters 464 and 893, the more specific reference

in Chapter 893 to controlled substances and who may prescribe

them would be favored in opposition to the description of

prescribing found in Chapter 464. See Palm Harbor Special Fire

Control District v. Kelly , 516 So. 2d 249 (Fla. 1987).

35. In construing Chapters 464 and 893, it is in

recognition that the effectiveness of Chapter 893, a far more

specific act, is retained unless the subsequent general act in

relation to prescribing of unidentified classes of drugs found in

Chapter 464 is intended as an overall restatement of the law on

the same subject. See Floyd v. Bentley , 496 So. 2d 862 (Fla. 2nd

DCA 1986), review denied , 504 So. 2d 766 (Fla. 1987). Chapter

464 is not seen as an overall restatement of Chapter 893 on the

subject of what groups of practitioners would be allowed to

prescribe controlled substances.

36. Finally, in examining the pertinent provisions within

Chapters 464 and 893, an attempt has been made to avoid a

construction that leads to an absurd result. See Carowan v.

State , 515 So. 2d 161 (Fla. 1987).

37. Chapters 464 and 893 are reconciled in their meaning,

to the extent that ARNPs may prescribe under general supervision

and pursuant to standing protocols for drugs that are not

controlled substances. As a consequence, the proposed rule is an

invalid exercise of delegated legislative authority in that the

Board of Nursing has exceeded its grant of rule-making authority

by allowing ARNPs to prescribe controlled substances. Section

120.52(8)(b), Florida Statutes.

38. With this outcome it is not necessary to consider

whether the rule is arbitrary or capricious or unsupported by

competent substantial evidence. Section 120.52(8)(e) and (f),

Florida Statutes. 1/

Upon consideration, it is

ORDERED:

Proposed rule 64B9-4.009 in the language and numbering

scheme added to the preexisting Rule 64B9-4.009, Florida

Administrative Code, is an invalid exercise of delegated

legislative authority.

DONE AND ORDERED this 13th day of March, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2000.

ENDNOTE

1/ In its petition challenging the validity of proposed rule

64B9-4.009 FMA concluded by asking that it be entitled to "such

other relief as may be deemed just and proper." It is unclear

whether this reference was intended to apply to Section

120.595(2), Florida Statutes, pertaining to the award of

reasonable costs and reasonable attorney's fees should FMA prevail

in its challenge. The prehearing stipulation did not mention

Section 120.595(2), Florida Statutes. Therefore, the decision in

this case has been reached without considering the opportunities

described in Section 120.595(2), Florida Statutes.

COPIES FURNISHED:

Francesca Plendl, Esquire

John M. Knight, Esquire

113 East College Avenue

Tallahassee, Florida 32301

Lee Ann Gustafson, Assistant Attorney General

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Ruth Stiehl, Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Morton J. Morris, J.D., D.O.

Post Office Box 291690

Davie, Florida 33329-1690

Cynthia A. Mikos, Esquire

Cynthia A. Mikos, P.A.

205 North Parsons Avenue, Suite A

Brandon, Florida 33510-4515

James W. Linn, Esquire

Deborah D. Holton, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

Liz Cloud, Chief

Department of State

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland B uilding, Room 120

Tallahassee, Florida 32399-1300

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 one copy of a

notice of appeal with the Clerk of the Division of Administrative

Hearings and a second 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.