Department of Health and Rehabilitative Services v. Wright

• Decision Date: 11 October 1983
• Docket Number: No. AP-145,AP-145
• Citation: 439 So.2d 937
• Parties: DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Gladys WRIGHT, et al., Appellees. and DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Larry A. MITCHELL d/b/a Heritage Elderly Care Facility, Appellee.
• Court: Florida District Court of Appeals

Page 937

439 So.2d 937

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Gladys WRIGHT, et al., Appellees. and DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Larry A. MITCHELL d/b/a Heritage Elderly Care Facility, Appellee.

No. AP-145.

District Court of Appeal of Florida,

First District.

Oct. 11, 1983.

Maureen L. McGill, Dist. I Legal Counsel, Pensacola, for appellant.

Bruce A. McDonald of Emmanuel, Sheppard & Condon, Pensacola, for appellee Ronnie Mitchell d/b/a Mitchell's Adult Congregate Living Facility.

Antony E. Fiorentino, Pensacola, for appellee Larry A. Mitchell d/b/a Heritage Elderly Care Facility.

WIGGINTON, Judge.

The Department of Health and Rehabilitative Services (department) appeals from an administrative hearing officer's conclusion, following a section 120.56 hearing, that Florida Administrative Code Rule 10A-5.18(5) constitutes an invalid exercise of delegated legislative authority. Specifically, the hearing officer found subsection 5 of Rule 10A-5.18 to be (1) invalid as being improperly promulgated due to an inadequate economic impact statement, SECTION 120.54(2)(C), FLORIDA STATUTES (SUPP.1980), AND (2)¹ invalid as not encompassed by the legislative grant of authority found in section 400.441(1), Florida Statutes (Supp.1980). ² We affirm the hearing officer's conclusion regarding the economic impact statement, thereby obviating consideration of his ruling on the statutory authority for the rule. See Division of Workers' Compensation v. McKee, 413 So.2d 805 (Fla. 1st DCA 1982); General Development Utilities Inc. v. Florida Public Service Commission, 385 So.2d 1050 (Fla. 1st DCA 1980).

For this Court gratuitously to consider and rule upon the merits of the department's authority in promulgating the rule would be to resolve that issue without the benefit of the economic impact statement we deem essential for consideration by the department in its rule-making process. Were the department to have had the benefit of the impact information, its action on the rule, as well as that of the hearing officer, may or may not have been different; that is yet to be seen.

Rule 10A-5.18 was derived from chapter 400, Florida Statutes, relating to Adult Congregate Living Facilities (ACLFs), as extensively amended in 1980. See ch. 80-198, Laws of Florida. ACLFs are facilities designed to provide live-in accommodations for individuals not in need of a nursing home or hospital care, and to render personal services as defined in section 400.402(8), Florida Statutes. Pertinent to this case is the 1980 revision to the section adding that "personal services" shall not be construed as including "the provision of medical, nursing, dental, or mental health services by the staff of a facility." Ch. 80-198 s. 14, Laws of Florida (emphasis added).

Pursuant to the statutory authority stated in section 400.441(1)(f), Florida Statutes (Supp.1980), directing the department to "promulgate, publish, and enforce rules" designed to implement chapter 400 in order to provide "reasonable and fair minimum standards in relation to: ... (f) [t]he care and maintenance of residents" of ACLFs, the department undertook a general revision of chapter 10A-5 of the Florida Administrative Code relating to minimum standards for ACLFs. Prior to conducting the formal rulemaking procedures of the Florida Administrative Code, the department formed an ad hoc committee, consisting of department representatives, health professionals, fire safety inspectors, and representatives from the Department of Insurance, the Florida Adult Care Association, the Florida Association of Homes for the Aged, and owners and residents, or their representatives, of ACLFs. Of particular interest to the committee was the alleged providing of nursing services by ACLFs in the form of bedside rails and chest restraints. Relying on the opinions of their own medical and nursing representatives participating on the committee, the department drafted Rule 10A-5.18 which sets forth resident care standards for ACLFs and regulates the types of individuals who may be admitted to such facilities, the services allowed, the medical examinations required and the procedures necessary for the handling and storage of drugs in those facilities. In particular, subsection 5 provides:

Facilities shall not use physical restraints such as jacket restraints, body or limb restraints or any other similar restraints. Full bedside rails shall not be used. Half bedside rails shall be used only with the written order of the resident's physician.

It was the department's position that the restraints and bedside rails constituted "nursing services" prohibited in ACLFs by section 400.402(8).

Following the procedures set forth in section 120.54, Florida Statutes (Supp.1980), the department notified the public of its intent, and scheduled public meetings at which interested individuals could voice their opposition, if any, to the proposed rules. Notice of the proposed rules was sent to all ACLF operators. When public hearings on the rules were held, appellees, who are owners and operators of certain ACLFs in Escambia County, challenged neither the proposed rules nor the appended economic impact statement, which generally outlined the estimated cost of promulgation of the rules, the costs and benefits of the proposed rules to those persons directly affected thereby, as well as the rules' effect on competition and the open market by specifying the data and methods used in arriving at those estimations. The rules were thereafter promulgated and became effective as of May 14, 1981.

In November of 1981, appellees filed their petition requesting a hearing, pursuant to section 120.56, Florida Statutes, for the purpose of determining the validity of subsection 5 of Rule 10A-5.18. Specifically, for purposes of this opinion, appellees contended subsection 5 amounts to an invalid exercise of delegated legislative authority in that the economic impact statement relating to it was insufficient. They pointed out that the statement, in discussing the costs and benefits of other subsections of Rule 10A-5.18 to persons directly affected, completely ignored 10A-5.18(5), and failed to mention it elsewhere. The department responded that the subsection was not included in the statement because the legislature had already prohibited provision of nursing services, that the rule merely reiterated the legislative prohibition, and, therefore, that the subsection proscribing the use of rails and chest restraints did not realistically impact on the operation of ACLFs. The hearing officer concluded that "law and logic do not support" the department's reasoning. We agree.

Prior to the adoption, amendment, or repeal of any rule, section 120.54(2)(a) mandates that an agency prepare an economic impact statement, ³ the purpose being to promote agency introspection in administrative rule making; to ensure a comprehensive and accurate analysis of economic factors, which factors work together with social factors and legislative goals underlying agency action; to direct agency attention to key considerations and thereby facilitate informed decision making; and finally, to expose the administrative process to public scrutiny. Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944, at 946 (Fla.1979).

However, the Florida Supreme Court has observed that "[t]he procedure envisioned by section 120.54(2)(a) does not ... command adherence to form over substance." Id. Moreover, although section 120.54(2) was amended in 1978 to provide that an agency's failure to include within its rule an "adequate" statement of economic impact is grounds for invalidation of the rule, that provision does not require perfection but only "substantial compliance" with section 120.54(2)(a). Id. As the preparation of a statement of economic impact "is a procedural aspect of an agency's rulemaking authority," it is subject to the "statutory harmless error rule" of section 120.68(8), Florida Statutes, which provides for remand only where a material error in procedure in an administrative proceeding impairs the fairness of the proceedings or the correctness of the action taken. Polk v. School Board of Polk County, 373 So.2d 960, 962 (Fla. 2d DCA 1979); School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979); Plantation Residents' Association, Inc. v. School Board of Broward County, 424 So.2d 879, 881 (Fla. 1st DCA 1982). Thus, the absence or insufficiency of an economic impact statement is harmless error if it is established that the proposed action will have no economic impact, i.e. by its merely implementing already established procedures, or if it is shown that the agency fully considered the asserted economic factors and impact. Division of Workers' Compensation v. McKee, 413 So.2d 805, 806 (Fla. 1st DCA 1982); Florida-Texas Freight, Inc. v. Hawkins; Polk v. School Board of Polk County.

Similarly, in the instant case, the department contends that Rule 10A-5.18(5) merely reiterates the legislative prohibition against nursing services being rendered in ACLFs, and therefore has no economic impact. On the contrary, the testimony of the department supervisor responsible for development and promulgation of the rule established that 10A-5.18(5) was a result of an "evolution of standards." It cannot be logically concluded that the ACLF operators could make the quantum leap from "nursing services" to bedside rails and chest restraints. Thus, the hearing officer correctly found that the rule was "new and unique" and a "codification of agency interpretation, not merely a repetition of a specific statutory standard." Moreover, the record indicates that the department was aware of a percentage of ACLFs using bedside rails and chest restraints, as prescribed by the residents' physicians, and also shows that the use of these items could not be eliminated without economic repercussions on both the residents requiring...