Florida Bd. of Med. v. Florida Academy of Cosmetic Surgery, Inc., No. 1D00-3897

• Citation: 808 So.2d 243
• Decision Date: 23 January 2002
• Docket Number: No. 1D00-3897, No. 1D01-123.
• Parties: FLORIDA BOARD OF MEDICINE, Florida Society of Disposition Anesthesiologists and Florida Hospital Association, Inc., Appellants, v. FLORIDA ACADEMY OF COSMETIC SURGERY, INC.; Charles Graper, M.D., D.D.S., F.A.C.S.; R. Gregory Smith, M.D., Florida Society of Plastic Surgery, Inc. and Florida Society of Dermatology, Inc., Appellees. Florida Board of Medicine, et al., Appellants, v. Florida Academy of Cosmetic Surgery, Inc., et al., Florida Association of Nurse Anesthetists and Florida Nurses Association, Appellees.
• Court: Court of Appeal of Florida (US)

808 So.2d 243

FLORIDA BOARD OF MEDICINE, Florida Society of Disposition Anesthesiologists and Florida Hospital Association, Inc., Appellants, v. FLORIDA ACADEMY OF COSMETIC SURGERY, INC.; Charles Graper, M.D., D.D.S., F.A.C.S.; R. Gregory Smith, M.D., Florida Society of Plastic Surgery, Inc. and Florida Society of Dermatology, Inc., Appellees.

Florida Board of Medicine, et al., Appellants, v. Florida Academy of Cosmetic Surgery, Inc., et al., Florida Association of Nurse Anesthetists and Florida Nurses Association, Appellees.

Nos. 1D00-3897, 1D01-123.

District Court of Appeal of Florida, First District.

January 23, 2002.

Robert A. Butterworth, Attorney General; M. Catherine Lannon and Lee Ann Gustafson, Assistant Attorneys General, Tallahassee, for Appellant Board of Medicine; Jerome W. Hoffman of Holland & Knight, LLP, Tallahassee, for Appellant Florida Society of Anesthesiologists; Stephen A. Ecenia and J. Stephen Menton of Rutledge, Ecenia, Purnell & Hoffman, P.A., Tallahassee, for Appellant Florida Hospital Association, Inc.

Alfred W. Clark, Tallahassee, for Appellees Florida Academy of Cosmetic Surgery, Inc., Charles Graper, M.D., D.D.S., F.A.C.S., and R. Gregory Smith, M.D.; Christopher L. Nuland of Law Offices of Christopher L. Nuland, Jacksonville, for Appellees Florida Chapter, American College of Surgeons, Inc., Florida Society of Dermatology, Inc., and Florida Society of Plastic Surgeons, Inc.; James W. Linn of Lewis Longman & Walker, P.A., Tallahassee, and Cynthia Mikos, Brandon, for Appellees Florida Association of Nurse Anesthetists and Florida Nurses Association.

Alan L. Briggs and Scott T. Kragie of Squire, Sanders & Dempsey L.L.P., Washington, D.C., for Amicus Curiae American Society of Anesthesiologists; Gene A. Blumenreich of Nutter, McClennen & Fish, LLP, Boston, MA, for Amicus Curiae American Association of Nurse Anesthetists.

WEBSTER, J.

In these two consolidated administrative appeals, appellants seek review of final orders entered by an administrative law judge (ALJ) in rule challenge proceedings. Appellants contend that the ALJ committed reversible error when he held that (1) appellees Florida Nurses Association (FNA) and Florida Association of Nurse Anesthetists (FANA) had standing to challenge a portion of appellant Florida Board of Medicine's proposed rule 64B8-9.009(6)(b)1.a. that required an anesthesiologist to be present for all level III office surgeries; (2) the Board of Medicine's rule 64B8-9.009(4)(b), requiring physicians without staff privileges who perform level II office surgeries to have a transfer agreement with a licensed hospital within reasonable proximity was an invalid exercise of delegated legislative authority; (3) the portion of proposed rule 64B8-9.009(6)(b)1.a. allowing physicians to perform level III office surgeries if they have staff privileges at a licensed hospital within reasonable proximity was an invalid exercise of delegated legislative authority; and (4) the portion of the Board of Medicine's proposed rule 64B8-9.009(6)(b)1.a. requiring an anesthesiologist to be present for all level III office surgeries was an invalid exercise of delegated legislative authority. We affirm the holding that FNA and FANA had standing to challenge the portion of proposed rule 64B8-9.009(6)(b)1.a. that required an anesthesiologist to be present for all level III office surgeries. However, we reverse the orders to the extent they hold that rule 64B8-9.009(4)(b) and the challenged portions of proposed rule 64B8-9.009(6)(b)1.a. constitute invalid exercises of delegated legislative authority.

I. BACKGROUND

Having become aware of a number of office surgery deaths and other adverse incidents, in October 1998, the Board of Medicine directed its Surgical Care Committee to evaluate, and to make recommendations for amendments to, Florida Rule of Administrative Procedure 64B8-9.009, which governed the standards of care for office surgery. Following the receipt of recommendations from the Committee and meetings and hearings, the Board published proposed amendments to rule 64B8-9.009 in three separate notices of change. On July 8, 1999, appellants Florida Society of Anesthesiologists (FSA) and Florida Hospital Association (FHA) filed separate rule challenges to several of the proposed amendments. The parties to those pending rule challenges eventually agreed to permit those portions of the proposed amendments that were not being challenged to be submitted to the Department of State for codification. Those amendments were filed with the Department of State on January 28, 2000, and became effective on February 17, 2000. On February 18, 2000, the Board published a fourth notice of change, which proposed additional amendments to the rule.

On March 3, 2000, in Division of Administrative Hearings (DOAH) case number 00-1058RX, appellees Florida Academy of Cosmetic Surgery, Inc. (FACS), Dr. Charles Graper and Dr. R. Gregory Smith filed a challenge to the recently enacted rule 64B8-9.009(4)(b), which applied to level II office surgery (i.e., surgery requiring preoperative intravenous, intramuscular or rectal medication and sedation). That rule read:

(b) Transfer Agreement Required. The physician must have a transfer agreement with a licensed hospital within reasonable proximity if the physician does not have staff privileges to perform the same procedure as that being performed in the out-patient setting at a licensed hospital within reasonable proximity.

They also challenged rule 64B8-9.009(6)(b), which applied to level III office surgery (i.e., surgery requiring preoperative sedation by use of a general anesthesia or major conduction anesthesia). That rule read:

(b) Hospital Staff Privileges Required. The physician must have staff privileges to perform the same procedure as that being performed in the outpatient setting at a licensed hospital within reasonable proximity.

Leave to intervene was subsequently granted to appellants FHA and FSA, and to appellees Florida Society of Plastic Surgery, Inc. (FSPS), and Florida Society of Dermatology, Inc. (FSD).

FACS, Graper and Smith also filed a challenge to proposed rule 64B8-9.009(6)(b)1.a., which had been included in the fourth notice of change. That proposed rule, as amended, read:

(b) Standards for Level III Office Surgery. In addition to the standards for Level II Office Surgery, the surgeon must comply with the following:

1. Training Required.

a. The surgeon must have staff privileges at a licensed hospital to perform the same procedure in that hospital as that being performed in the office setting or must be able to document satisfactory completion of training such as Board certification or Board qualification by a Board approved by the American Board of Medical Specialties or any other board approved by the Board of Medicine or must be able to demonstrate to the accrediting organization or to the Department comparable background, training, and experience. In addition, the surgeon must have knowledge of the principles of general anesthesia. If the anesthesia provider is not an anesthesiologist, there must be a licensed M.D., or D.O., anesthesiologist, other than the surgeon, to provide direct supervision of the administration and maintenance of the anesthesia.

This challenge was assigned DOAH case number 00-951RP. Leave to intervene was subsequently granted to appellants FHA and FSA and to appellees FSPS, FSD, FNA, FANA and the Florida Chapter of the American College of Surgeons. FSA argued unsuccessfully that FNA and FANA lacked standing to intervene. On April 17, 2000, FANA filed its own challenge to the portion of proposed rule 64B8-9.009(6)(b)1.a. which required an anesthesiologist to be present for all level III office surgeries. That challenge was assigned DOAH case number 00-1622RP. The Board argued unsuccessfully that FANA lacked standing to maintain such a challenge. DOAH case number 00-1622RP was eventually consolidated with DOAH case number 00-951RP.

Following a hearing in DOAH case number 00-1058RX, on September 7, 2000, the ALJ entered a final order holding that the transfer agreement provision of rule 64B8-9.009(4)(b) and the staff privileges provision of rule 64B8-9.009(6)(b) were invalid exercises of delegated legislative authority. Following a subsequent hearing in DOAH case numbers 00-951RP and 00-1622RP, on November 16, 2000, the ALJ entered a final order holding that the portion of the first sentence of proposed rule 64B8-9.009(6)(b)1.a. relating to staff privileges and the last sentence of that rule (requiring anesthesiologist supervision of the administration of general anesthesia), were invalid exercises of delegated legislative authority. These appeals follow.

II. STANDING OF FNA AND FANA

Standing to challenge proposed or existing administrative rules is governed by statute in Florida. Section 120.56(1)(a), Florida Statutes (1999), provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." To demonstrate that one is or will be "substantially affected by a rule or a proposed rule," one must establish both that application of the rule will result in "a real and sufficiently immediate injury in fact" and that "the alleged interest is arguably within the zone of interest to be protected or regulated." See, e.g., Lanoue v. Fla. Dep't of Law Enforcement, 751 So.2d 94, 96 (Fla. 1st DCA 1999)

; Ward v. Bd. of Trs. of Internal Improvement Trust Fund, 651 So.2d 1236, 1237 (Fla. 4th DCA 1995); All Risk Corp. of Fla. v. State Dep't of Labor & Employment Sec., 413 So.2d 1200, 1202 (Fla. 1st DCA 1982); Fla. Dep't of Offender Rehab. v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). Our supreme court has held that trade or professional associations have standing in certain circumstances to challenge, pursuant to section 120.56(1),...