Department of Health v. Merritt, 1D05-729.
| Decision Date | 05 January 2006 |
| Docket Number | No. 1D05-729.,No. 1D05-818.,1D05-729.,1D05-818. |
| Citation | 919 So.2d 561 |
| Parties | DEPARTMENT OF HEALTH, The Florida Insurance Council, Inc., The Property Casualty Insurers Association of America, The American Insurance Association, The National Association of Mutual Insurance Companies, The Florida Automobile Joint Underwriting Association, State Farm Mutual Automobile Insurance Company, Allstate Insurance Company, Government Employees Insurance Company, The Florida Farm Bureau Insurance Companies, Liberty Mutual Insurance Group, First Floridian Auto and Home Insurance Company, and United Services Automobile Association, Appellants/Cross-Appellees, v. Richard W. MERRITT, D.C., Appellee/Cross-Appellant. The Florida Insurance Council, Inc., The Property Casualty Insurers Association of America, The American Insurance Association, The National Association of Mutual Insurance Companies, The Florida Automobile Joint Underwriting Association, State Farm Mutual Automobile Insurance Company, Allstate Insurance Company, Government Employees Insurance Company, The Florida Farm Bureau Insurance Companies, Liberty Mutual Insurance Group, First Floridian Auto and Home Insurance Company, and United Services Automobile Association, Appellants, v. Richard W. Merritt, D.C., and Department of Health, State of Florida, Appellees. |
| Court | Florida District Court of Appeals |
Donna Erlich and Lucy Schneider of Department of Health, Tallahassee, for Appellant/Cross-Appellee Department of Health.
E. Gary Early of Messer, Caparello & Self, P.A., Tallahassee for Appellee/Cross-Appellant Richard W. Merritt, D.C.
Cynthia S. Tunnicliff and Brian A. Newman of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellants The Florida Insurance Council, Inc., The Property Casualty Insurers Association of America; the American Insurance Association, The National Association of Mutual Insurance Companies, The Florida Automobile Joint Underwriting Association, State Farm Mutual Automobile Company, Allstate Insurance Company, Government Employees Insurance Company, The Florida Farm Bureau Insurance Companies, Liberty Mutual Insurance Group, First Floridian Auto and Home Insurance Company, and United Services Automobile Association.
The appellants in these consolidated administrative appeals challenge a final order by which an administrative law judge declared a portion of Florida Administrative Code Rule 64B-3.004 invalid. We conclude that the judge applied the correct standard when evaluating the evidence presented at the underlying de novo hearing, that the judge's material findings of fact are supported by competent substantial evidence, and that, in light of these findings, the judge properly determined that the portion of the rule at issue is an invalid exercise of delegated legislative authority. We accordingly affirm the final order.
In 2003, the Florida Legislature sought to relieve automobile insurance companies providing personal injury protection coverage of the burden of paying for or engaging in litigation regarding the use of certain diagnostic tests determined to be medically unnecessary for the treatment of an injured insured. Accordingly, the Legislature enacted section 627.736(5)(b)(6), Florida Statutes, which provides in material part:
The Department of Health, in consultation with the appropriate professional licensing boards, shall adopt, by rule, a list of diagnostic tests deemed not to be medically necessary for use in the treatment of persons sustaining bodily injury covered by personal injury protection benefits under this section. The initial list shall be adopted by January 1, 2004, and shall be revised from time to time as determined by the Department of Health, in consultation with the respective professional licensing boards. Inclusion of a test on the list of invalid diagnostic tests shall be based on lack of demonstrated medical value and a level of general acceptance by the relevant provider community and shall not be dependent for results entirely upon subjective patient response.
The Department of Health subsequently commenced its statutorily required rulemaking process and, after reviewing a number of proposed diagnostic tests for inclusion on the list, adopted rule 64B-3.004, which provides:
For the purposes of Section 627.736(5)(b)6., F.S. (2003), the Department of Health, in consultation with the appropriate licensing boards, hereby adopts the following list of diagnostic tests based on their demonstrated medical value and level of general acceptance by the provider community:
(1) Spinal ultrasound, also known as sonography, ultrasonography, and echography, is deemed not to be medically necessary for use in the diagnosis and treatment of persons sustaining bodily injury covered by personal injury protection benefits.
(2) Surface EMG is deemed not to be medically necessary for use in the diagnosis of persons sustaining bodily injury covered by personal injury protection benefits.
(3) Somatosensory Evoked Potential is deemed not to be medically necessary for use in the diagnosis of radiculopathy or distal nerve entrapment when treating persons sustaining bodily injury covered by personal injury protection benefits.
(4) Dermatomal Evoked Potential is deemed not to be medically necessary for use in the diagnosis and treatment of persons sustaining bodily injury covered by personal injury protection benefits.
Appellee Richard Merritt, a licensed chiropractor, initiated the underlying section 120.56, Florida Statutes, rule challenge. He contested only the inclusion of surface EMG testing, arguing that the Department had engaged in an invalid exercise of delegated legislative authority by determining that this test lacked medical value and had failed to reach a level of general acceptance in the relevant provider community. After independently examining the evidence presented to the Department during its rulemaking proceedings as well as evidence presented for the first time at the section 120.56 hearing, the administrative law judge agreed with the appellee and entered the final order invalidating subsection (2) of the rule.
The appellants argue that the judge erred by undertaking an independent evaluation of the evidence. As...
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