Farmworker Rights Organization, Inc. v. State Dept. of Health and Rehabilitative Services, s. AN-206

• Decision Date: 14 April 1983
• Docket Number: Nos. AN-206,AN-241,s. AN-206
• Citation: 430 So.2d 1
• Parties: FARMWORKER RIGHTS ORGANIZATION, INC. and Carmen Torres, Appellant, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1

430 So.2d 1

FARMWORKER RIGHTS ORGANIZATION, INC. and Carmen Torres, Appellant, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

Nos. AN-206, AN-241.

District Court of Appeal of Florida First District.

April 14, 1983.

Rehearing Denied May 19, 1983.

Robert J. Willis of Florida Rural Legal Services, Inc., Bartow, for appellant.

James M. Barclay, Dept. of Health and Rehabilitative Services, Tallahassee, for appellee.

SHIVERS, Judge.

This case involves an administrative rule challenge in which Farmworker Rights Organization Inc. (FRO) and Torres appeal the final order of the hearing officer which upholds the validity of Rules 10-5.11 and 10-5.12(8), Florida Administrative Code. ¹

Appellant urges several points on appeal, one of which merits discussion. We agree with appellant that the hearing officer erred in finding that the Department of Health and Rehabilitative Services (HRS) rules in question are in accordance with federal statutes and consistent with federal regulations. Therefore, we reverse.

FRO, petitioner below, is an educational and charitable non-profit corporation organized under Chapter 617, Florida Statutes, for the purpose, inter alia, of improving the health and economic well-being of Florida farmworkers. Torres is a member of FRO, and is a low income person of Hispanic background who has experienced difficulty in obtaining adequate medical assistance due to her lack of access to such places as Lehigh General Hospital, which hospital was issued a certificate of need by HRS pursuant to Rule 10-5.11. HRS, respondent below, is the state agency that has been designated by the state to run its certificate of need (CON) program pursuant to 42 U.S.C. § 300m(b)(1) and section 381.494, Florida Statutes. Because Florida complies with federal law on the subject, the state receives federal funding to run its CON program and other related programs. Section 381.494(7)(a), Fla.Stat. (1981), ² provides that HRS shall issue or deny certificates of need "in accordance with present and future federal and state statutes." Pursuant to statutory authority under section 381.494 and section 120.54, Florida Statutes, HRS has promulgated, among others, Rules 10-5.11 and 10-5.12, Fla.Admin.Code. Rule 10-5.11 establishes the criteria against which CON applications are evaluated in Florida. Rule 10-5.12 provides for hearing procedures for aggrieved persons who are substantially affected by CON issuances or denials, and subsection (8) limits decisions which may be reversed or revised by the hearing officers to decisions as to the consistency or inconsistency of the application for CON with the criteria described in Rule 10-5.11.

FRO filed a petition for determination of invalidity of rules on December 28, 1981 pursuant to section 120.56, Fla.Stat. (1981), seeking a determination that Rules 10-5.11 and 10-5.12(8), Fla.Admin.Code were in conflict with section 381.494(7)(a), Fla.Stat. (1981) and were therefore an invalid exercise of delegated legislative authority. The gravamen of the FRO petition was that section 381.494(7)(a), Florida Statutes, requires HRS rules to be in accordance with federal statutes, and that federal statutes and regulations require state CON review agencies to consider the degree to which medically underserved persons, including low income and minorities, have access to the services under review. FRO claimed that since the HRS rules do not specifically provide a criterion addressing this "access" issue, the rules must fail. Rule 10-5.11, Fla.Admin.Code does not explicitly contain any criterion which addresses the access question, but does, however, have a criterion which requires HRS to consider "the needs that the population served or to be served has for such proposed health or hospice services."

The final order of the hearing officer upheld the validity of the challenged rules. The hearing officer found that while HRS's rules do not specifically provide for consideration of all the criteria set out in the federal rules, the state rules do not prohibit the consideration of such matters. The order further found that the extent to which a given health care facility would meet the needs of low income or minority persons would appropriately be considered under the provisions of the current rules and that HRS does not have a policy of failing to consider any of the criteria provided in the federal rules. The order found that although HRS has not always considered the extent to which a proposed facility could meet the needs of minority and low income persons, it has sometimes done this in CON application proceedings. From that final order this appeal ensued.

Initially, appellee contends that appellants lack standing to challenge the rules in question. The hearing officer below specifically found that appellants did have standing, and we find this decision supported by competent substantial evidence. See Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla.1982); Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA 1982).

Turning to the merits, it is clear that in order to be a valid exercise of delegated legislative authority under section 381.494(7)(a), Florida Statutes, the HRS rules in question must be in accordance with federal statutes. 42 U.S.C. § 300n-1(c) ³ provides minimum criteria to be used by state agencies in conducting reviews of proposed health services. Among these minimum criteria is a requirement that the state agency consider "the extent to which such proposed services will be accessible to all the residents of the area to be served by such services." 42 U.S.C. § 300n-1(c)(6)(E).

Another federal statute which explicitly relates to HRS's administration of the certificate of need program is 42 U.S.C. § 300m-2(a)(4)(B). ⁴ This federal statute provides that state agencies such as HRS shall administer a certificate of need program which "is consistent with standards established by the Secretary [Secretary of Health and Human Services] by regulation." Thus, it is clear that in order for HRS's certificate of need rules to be valid exercises of delegated legislative authority under Florida statutes, any such rule must be "consistent with" federal regulations on the same subject in order to be "in accordance with" federal statutes.

42 C.F.R. § 123.412 ⁵ is the federal regulation which directly relates to Florida Rule 10-5.11. Section 123.412 delineates specific criteria for conducting certificate of need reviews which "the state agency shall adopt ...." (emphasis added). Section 123.412, by its terms, does not require state rules to "parrot" or copy the federal provisions word for word, but instead mandates that state criteria must be based only on the "general considerations" of § 123.412.

Subsections (a)(5) and (a)(6) of § 123.412 deal explicitly with the access of low income persons, racial and ethnic minorities, women, handicapped persons, the elderly and other underserved groups. 42 C.F.R. § 123.413(a) ⁶ states that the state agency (HRS) is "required" to develop criteria based on the considerations of § 123.412(a)(5) and (6). Section 123.413(a) states, "the state agency shall make a written finding ... on the extent to which the project will meet the state agency's criteria based on the considerations in section 123.412(a)(5) and (6) ...." (emphasis added). Furthermore, 42 C.F.R. § 123.410(a)(6) ⁷ mandates that the procedures adopted by state agencies for conducting CON reviews "must" include "at least" written findings covering "the required findings under ... section 123.413(a)."

Rule 10-5.11 does not explicitly contain any criterion dealing with the access of low income and minority groups. The rule does contain a criterion in subsection (3) regarding "the need that the population served or to be served has for such proposed health or hospice service." We cannot agree with HRS and the hearing officer that this subsection is broad enough to include consideration of the criteria mandated by federal regulation. The facts as found by the hearing officer indicate that HRS has no policy to comply with the federal "access" criteria when reviewing every certificate of need application. The hearing officer found, in Finding of Fact Number 7, "there have been proceedings in which the Department has not specifically addressed the needs of low income and minority persons." This finding of fact conclusively shows that Rule 10-5.11 allows HRS to ignore a criterion which federal statutes and regulations mandate it consider. To this extent, Rule 10-5.11 is inconsistent with federal regulations, therefore, not "in accordance with" federal statutes, and thus in violation of the Florida Statute under which it was promulgated. Accordingly, the hearing officer's conclusion of law is erroneous. Rule 10-5.11 is an invalid exercise of delegated legislative authority. It also follows that Rule 10-5.12(8), which limits review of HRS decisions to their consistency with the criteria of Rule 10-5.11, is also invalid.

REVERSED.

WENTWORTH and JOANOS, JJ., concur.

1 Rule 10-5.11, Fla.Admin.Code reads in pertinent part:

10-5.11 Criteria against Which Applications are Evaluated.

(1) The relationship of health or hospice services being proposed to the applicable Health Systems Plan and Annual Implementation Plan and State Health Plan adopted pursuant to Title XV of the Public Health Service Act, except in emergency circumstances which pose a threat to the public health.

(2) The relationship of health services proposed to the long-range development plan of the person providing or proposing such health services.

(3) The need that the population served or to be served has for such proposed health or hospice services.

(4) The availability of alternative, less costly, or more effective methods of providing such proposed health or hospice services upon...