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Fernandez v. Department of Health Board of Medicine

Florida Court of Appeals, First District

April 11, 2017

DANIEL R. FERNANDEZ and DAX J. LONETTO, SR., PLLC, Appellants,
v.
DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee, and BACTES IMAGING SOLUTIONS, INC., and HEALTHPORT TECHNOLOGIES, LLC, Intervenors.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from an order of the Division of Administrative Hearings.

          David M. Caldevilla and Nicolas Q. Porter of de la Parte & Gilbert, P.A., Tampa; and Scott R. Jeeves, St. Petersburg, for Appellants.

          Pamela Jo Bondi, Attorney General, Marlene K. Stern and Edward Tellechea, Assistant Attorneys General, Tallahassee, for Appellees.

          Michael Fox Orr and Amanda E. Ferrelle, Jacksonvile, for Intervenor Bactes Imaging Solutions, Inc.

          Dan R. Stengle, Tallahassee, for Intervenor HealthPort Technologies, LLC.

          BILBREY, J.

         Appellants, petitioners below, appeal the Administrative Law Judge's final order which held that the adopted but not yet ratified amendment to rule 64B8-10.003, Florida Administrative Code, was not an invalid exercise of the legislative authority delegated to the Department of Health, Board of Medicine. Appellants fail to establish that the adopted amendment, and therefore this appeal, are moot.[1]Appellants also fail to establish any ground under section 120.68(7), Florida Statutes, upon which the ALJ's final order must be set aside and remanded for further agency action. Because the ALJ correctly determined that the amendment was within the Board's rulemaking authority, we affirm the order.

         The rule 64B8-10.003 which is currently in effect, titled "Costs of Reproducing Medical Records, " provides that licensed physicians may charge patients and governmental entitles "the reasonable costs of reproducing copies of written or typed documents or reports" not to exceed $1.00 per page for the first 25 pages, and not to exceed 25 cents per page in excess of 25 pages. Other entities requesting copies of such documents may be charged up to $1.00 per page regardless of the number of pages. The adopted but not yet ratified amendment to rule 64B8-10.003 eliminates the reduction in costs for pages in excess of 25 pages requested by patients and government entitles, setting the price ceiling of $1.00 per page for all pages for all requestors. The Board's legislative authority to enact and amend the rule is granted by sections 456.057(17) and 458.309, Florida Statutes.

         Starting with the first notice published in the Florida Administrative Register on October 30, 2012, the Board conducted rulemaking proceedings pursuant to section 120.54, Florida Statutes. Following the requisite notices, the Board conducted ten public hearings and received written and oral comments from multiple interested parties. On March 4, 2015, at the tenth public hearing, the Board determined that the amendment would increase regulatory costs to such an extent that a revised statement of estimated regulatory costs (SERC) was necessary and that in order for the amendment to take effect legislative ratification was required. See § 120.541(2)-(3), Fla. Stat.

         The revised SERC and changes to the proposed rule amendment based on comments and testimony received at the public hearings were noticed and published on March 12, 2015. Appellants each filed their petitions for administrative hearing on March 31, 2015. After the final administrative hearing, the ALJ's final order was entered December 8, 2015.

         Thereafter, the Board submitted the proposed amendment to the President of the Senate and Speaker of the House of Representatives with a request for legislative ratification during the 2016 legislative session. See § 120.541(3), Fla. Stat. The Board also filed the rule amendment with the Department of State for adoption, pursuant to section 120.54(3)(e), Florida Statutes. Pursuant to section 120.541(3), however, even though adopted, the amendment to rule 64B8-10.003 could not "take effect until it is ratified by the Legislature."

         The rule amendment was not ratified during the 2016 legislative session, but the Board has not taken any action to withdraw the amendment to date. Accordingly, the amendment is currently adopted, but not effective. See §§ 120.54(3)(d)3., Fla. Stat. (governing modification and withdrawal of rules at various procedural stages); 120.54(3)(e)5.-6., Fla. Stat. (requiring withdrawal if rule not adopted within time limits; setting separate times at which a rule is "adopted" and when "effective.").

         We first address the status of the adopted amendment to the rule and whether the amendment and therefore this appeal of the ALJ's order is moot due to the lack of legislative ratification of the amendment as required by section 120.541(3), Florida Statutes (2016). The issue is whether, as argued by Appellants, the failure of the Legislature to ratify the proposed amendment during the 2016 legislative session, and thus the failure of the amendment to become "effective, " renders the amendment "dead" and the appeal of the ALJ's order moot due to the expiration of statutory time limits for adoption and effectiveness of the rule. We hold that the failure ...


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