Department of Health and Rehabilitative Services v. Florida Psychiatric Soc., Inc., NN-238

• Decision Date: 16 April 1980
• Docket Number: No. NN-238,NN-238
• Citation: 382 So.2d 1280
• Parties: DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. The FLORIDA PSYCHIATRIC SOCIETY, INC., and John L. Mason, M.D., Appellees.
• Court: Florida District Court of Appeals

Page 1280

382 So.2d 1280

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. The FLORIDA PSYCHIATRIC SOCIETY, INC., and John L. Mason, M.D., Appellees.

No. NN-238.

District Court of Appeal of Florida, First District.

April 16, 1980.

James G. Mahorner, Tallahassee, for appellant.

Kenneth F. Hoffman, of Rogers, Towers, Bailey, Jones & Gay, Tallahassee, for appellees.

LARRY G. SMITH, Judge.

The Department of Health and Rehabilitative Services appeals a final order, entered in a rule challenge proceeding ¹ filed by appellee, Florida Psychiatric Services, Inc., and Dr. John L. Mason, M.D., which found the Department's proposed rules 10D-73 ² and 10E-4.12(a)(b)(4) ³ invalid for lack of legislative authority. The issue presented on appeal is whether the Department is authorized by law to provide rules for the establishment, regulation and licensing of "crisis stabilization" and "intensive residential treatment" facilities, as alternatives to inpatient care under the Florida Mental Health Act, also known as the Baker Act. We adopt the findings, reasoning and conclusions of the hearing officer who determined that such alternative facilities are not within the statutory authority conferred upon the Department. The order appealed from is therefore affirmed.

The proposed rules designate the statutes relied upon as authority for their enactment and as the law being implemented ⁴. Upon examination we have concluded, as did the hearing officer, that the statutes do not authorize the new facilities. The first of the statutes cited in the rule, Section 381.031(1)(g)(11), gives the Department power to adopt rules "consistent with law regulating . . . (the) execution of any other purpose or intent of the laws enacted for the protection of the public health of Florida" (emphasis supplied). This provision confers no powers to regulate or carry out programs not otherwise provided for by substantive law. So far as licensing of facilities is concerned, the scope of the foregoing subsection is definitely limited by the next subsection, (h), of Section 381.031(1), which provides in part:

". . . nothing herein shall be construed to authorize the department to require a permit or license, unless such requirement is specifically provided by law." (Section 381.031(1)(h), Florida Statutes).

As interpreted by the hearing officer, the Department has no authority to license facilities unless it is specifically given that authority by statute. We agree that such authority cannot be found in the general rule-making provisions of Chapter 381, Florida Statutes.

The hearing officer found no authority for the new facilities in Chapter 400, Florida Statutes, nor do we. Section 400.021(4) provides that facilities authorized under that Chapter (nursing homes and related health care facilities), "shall not include any place providing care and treatment primarily for the acutely ill " (emphasis supplied). A great deal of the testimony before the hearing officer dealt with the differentiation, in a medical sense, of one who is "chronically ill", as opposed to "acutely ill". After hearing extensive testimony, the hearing officer found that while a majority of mental, emotional and behavioral illnesses are of a chronic nature, the typical Baker Act mental patient is a person primarily experiencing acute manifestations or exacerbations of a mental, emotional or behavioral illness, and is therefore in a state of "acute illness". We agree with the hearing officer's analysis of the problem, because it is clear from the evidence that the condition of the patient at the moment mental health services are needed is the critical factor that governs how, by whom, and where such services should be provided. As one witness aptly expressed it, "acute is acute". The rules under consideration provide that the proposed new facilities are for those "who are acutely emotionally disturbed and who need immediate care" (Rule 10D-73.021(a)), and for "persons in such acute distress that their capacity to cope with their life circumstances has been suddenly and completely exceeded" (Rule 10D-73.022(b)(3)). Since facilities for treatment of the acutely ill are not authorized under Chapter 400, the proposed licensure and regulation of the new facilities is not authorized by that Chapter.

We next consider Section 394.453, Florida Statutes (1977), the "legislative intent" portion of the Baker Act, which contains the following provision:

". . . The Department is directed to implement and administer mental health programs as authorized and approved by the Legislature, based on the department's annual program budget . . .".

We agree with the hearing officer's interpretation of the above statute, that only programs "authorized and approved by the Legislature" may be implemented and administered by the Department. Further, the additional language "based upon the department's annual program budget", does not mean that authorization and approval of new programs is to be accomplished simply by including them as a budgetary item for the Department in the annual Appropriations Act passed by the legislature. Item 616 of the 1978 Appropriations Act includes "up to $1,707,408 for 75% start-up funding of crisis stabilization programs and short-term residential programs". It is clear, however, that the Appropriations Act cannot be used as authority for the establishment and licensing of new programs and facilities not otherwise authorized by substantive law. Advisory Opinion to the Governor, 239 So.2d 1 (Fla.1970); Dickinson v. Stone, 251 So.2d 268 (Fla.1978); and Department of Administration v. Horne, 269 So.2d 659 (Fla.1972).

We have examined the remaining statutory provisions primarily relied upon by the Department, and while we agree that the Department is given broad authority to carry out the purposes and intent of the legislature with respect to mentally ill persons, we find nothing in the statutes authorizing programs or facilities to which the rules adopted by the Department can reasonably be related. Citing Florida Beverage Corporation v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975), the Department argues that the "mental health law rule-making power" (appellant's brief, page 6), provides authority for the Department to make all rules reasonably related to the mental health program provided for under Chapter 394, Florida Statutes. In the Wynne case, rules enacted by the Division of Beverage, Department of Business Regulation, were found to be directly related to statutory provisions permitting and regulating the purchase of alcoholic beverages by vendors from other vendors. The Department urges the application of the principle stated in Wynne, supra, that where the empowering provision of a statute states simply that an agency may "make such rules and regulations as may be necessary to carry out the provisions of this Act", the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or cAprililicious. The first difficulty we have with the Department's argument is the absence of specific "enabling legislation". The next difficulty we have is that in Chapter 394, the Baker Act, provision is specifically made for the emergency and temporary treatment of mentally ill persons. The statutes spell out with particularity the criteria which must be met in order for persons to be eligible for such treatment, ⁵ and the procedures which must be followed under a variety of circumstances and conditions, including emergency admission (Section 394.463(1)), court-ordered evaluation (Section 394.463(2)), voluntary admissions (Section 394.465), and involuntary hospitalization (Section 394.467). The rules under attack do not purport simply to carry out the purposes and intentions of the Baker Act as expressed in these statutory provisions. To the contrary, the rules themselves in effect attempt to amend the Act, by diverting persons eligible for services and treatment under the Act into an entirely different evaluation and treatment program. Under the proposed rule, persons who meet the statutory criteria for admission to a receiving facility on emergency conditions (Section 394.463(1) (a)), would first be reviewed or screened by the crisis stabilization unit (or by the emergency service of a community mental health center or clinic), and then referred to treatment on an out-patient or in-patient basis as determined by the crisis stabilization unit (or the emergency service). In this connection, one of the witnesses who testified for appellee-Florida Psychiatric Society stated that the concerns of the 450-member society included the prospect that "acute medical emergencies will be managed by minimally skilled lay people in substandard facilities". Our examination of the rules discloses radical departures from the procedures established under the prevailing law. For example, Section 394.463(1)(c), Florida Statutes (1977), provides that a patient who is admitted for emergency examination and treatment by a receiving facility shall be examined by a physician without unnecessary delay, and may be given such treatment as is indicated by good medical practice. In the proposed facilities, a person admitted must be "seen" by a physician within 24 hours of admission. Meanwhile, a person admitted to the crisis stabilization unit may receive a "physical assessment", defined by the rules as a general physical by one who may be a licensed practical nurse; and a physical assessment, as well as a "mental status evaluation", may be administered in the intensive residential treatment unit. There is no requirement that a patient be immediately released if hospitalization or further evaluation is not needed, as under Section 394.463(1)(d), Florida Statutes (1977). Furthermore, the rules are lacking in procedures for court determination of the necessity for treatment, which may include...