DANIEL R. FERNANDEZ and DAX J. LONETTO, SR., PLLC, Appellants,
DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee, and BACTES IMAGING SOLUTIONS, INC., and HEALTHPORT TECHNOLOGIES, LLC, Intervenors.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from an order of the Division of Administrative
M. Caldevilla and Nicolas Q. Porter of de la Parte &
Gilbert, P.A., Tampa; and Scott R. Jeeves, St. Petersburg,
Jo Bondi, Attorney General, Marlene K. Stern and Edward
Tellechea, Assistant Attorneys General, Tallahassee, for
Michael Fox Orr and Amanda E. Ferrelle, Jacksonvile, for
Intervenor Bactes Imaging Solutions, Inc.
Stengle, Tallahassee, for Intervenor HealthPort Technologies,
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.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.
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.
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.
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.
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."
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
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 ...