State, Dept. of Health and Rehabilitative Services v. Alice P., II-259
| Decision Date | 31 January 1979 |
| Docket Number | No. II-259,II-259 |
| Citation | 367 So.2d 1045 |
| Parties | STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. ALICE P., Susan A., Jeannette R., Samuel Barr, M. D., and Jacksonville Women's Health Organization, Inc., and Central Florida Women's Health Organization, Inc., Respondents. |
| Court | Florida District Court of Appeals |
George L. Waas and Charles T. Collette, and Kenneth G. Oertel, Tallahassee, for petitioner.
Terry L. DeMeo, South Miami, Jerry G. Traynham and Ben R. Patterson, Tallahassee, and Frank Susman, St. Louis, Mo., for respondents.
By Petition for Review pursuant to F.S. 120.68 and Rule 4.5(c) Fla.App.R., the State of Florida Department of Health and Rehabilitative Services (hereinafter referred to as the Department) seeks review of a Final Order issued by a hearing officer of the Division of Administrative Hearings. Numerous points and sub-points are posed for our consideration. For clarity we will depart from our customary format of opinions and state the issues as we consider them following a recitation of the essential facts, which are not in dispute.
The Department administers the Medicaid program for the State of Florida pursuant to F.S. 409.266 and Chapters 10C-7 and 10C-8 of the Florida Administrative Code. (F.A.C.) That program is jointly funded by state and federal funds. Under the program, the Department makes payments for physicians' services and for inpatient hospital services rendered to Medicaid recipients. Rules 10C-7.38 and 10C-7.39, F.A.C., are the Department's rules which describe physicians' services and inpatient services, respectively.
As a result of actions taken by the federal government federal funds for elective non-therapeutic abortions were terminated in the summer of 1977 and the Department subsequently received no federal funds to pay for such abortions. Federal funds thereafter could only be used to pay for Medicaid abortions when "the attending physician certifies the abortion is necessary because the life of the mother would be endangered if the fetus were carried to term or if the procedure is necessary to terminate an ectopic pregnancy."
In an effort to harmonize its rules with the changes made by the federal government, the petitioner promulgated emergency rules on or about September 1, 1977, and initiated proceedings for the adoption of permanent rules by publishing a notice of proposed amendments to the subject rules on October 14, 1977.
A petition was thereupon filed pursuant to F.S. 120.54(4) on behalf of Alice P. and Susan A., individually and as representatives of a class on October 28, 1977, 14 days after publication of the notice, asserting in part that the proposed amendments constituted an impoundment of funds appropriated by the Legislature and that the notice of the summary of the estimate of economic impact was incorrect or erroneous.
The Department moved to dismiss the petition on the grounds of lack of standing and the unavailability of class actions in an F.S. 120.54(3) proceeding.
At a pre-hearing conference, the hearing officer denied the motion to dismiss as to standing, reserved ruling as to the motion to dismiss the class action and set the hearing date for November 30, 1977.
On or about November 13, 1977, a petition for intervention on behalf of Jacksonville Women's Health Organization, Inc., and Central Florida Women's Health Organization, Inc., and similarly situated providers was filed. That petition was filed by an out-of-state attorney not admitted to The Florida Bar and not then associated as co-counsel with a member of The Florida Bar.
On or about November 17, 1977, an amended petition was filed on behalf of anonymous petitioners Jane Doe and Janet Woe and petitioner Samuel J. Barr, M.D. together with a motion for leave to amend.
The Department opposed the petition for intervention by the corporate intervenors on the grounds that it expanded the issues presented in the original petition and was filed by an out-of-state lawyer contrary to Fla.R.Civ.P. 1.030. The Department also opposed the amended petition on the grounds that, as to Barr, the amended petition raised new issues and established a new cause of action and, as to Jane Doe and Janet Woe, the amended petition failed to demonstrate adequate statutory standing and the process was insufficient.
On or about November 23, 1977, Jeannette R. sought to intervene. On the same day, the other anonymous petitioners (Alice P., Susan A., Jane Doe and Janet Woe) moved for a protective order or partial in camera inspection to prevent their identities from becoming public record in an administrative proceeding.
Based upon Alice P. and Susan A.'s response to the Department's first set of interrogatories that they were no longer pregnant, the Department again moved to dismiss the original petition premised upon a demonstrable lack of standing in that, not being pregnant, they could not challenge the proposed amendments to the subject rules. On the same day (November 28, 1977 two days before the scheduled hearing), the Department moved in opposition to the motion for protective order or partial in camera proceedings on the ground that, among others, a hearing officer has no authority to seal public records and moved to dismiss Jeannette R.'s petition for lack of standing and untimeliness, urging the inequity of multiple filings on behalf of anonymous petitioners and others seeking to expand the issues beyond the original petition.
A second pre-hearing conference was held on November 30, 1977. Although counsel for the anonymous petitioners admitted that the purpose of the amended petition was "to include some expanded allegations and two new parties", the hearing officer stated that he was not concerned with the technicalities of standing but was "interested in reaching the merits in this case." To that end, the hearing officer ruled that "any woman of childbearing age and regardless of whether they are pregnant or not entitles them to pursue this action". However, he subsequently amended his finding to embrace only "women of childbearing age who are Medicaid recipients".
The Department's motion to dismiss on the grounds that anonymous petitioners Alice P. and Susan A. had procured abortions, thereby vitiating any claim of standing, and that an inadequate petition cannot be revised by subsequent untimely filed pleadings was denied. During the hearing, Alice P. was dismissed as a party without evidence having been adduced regarding her standing.
At the final hearing, Jeannette R. and Janet Woe stated that they were pregnant Medicaid recipients. Both had attempted to use their Medicaid benefits to obtain desired abortions, but were denied them because of the funding cutoff.
Respondent Dr. Samuel Barr, testified generally about the effects of the Medicaid abortion ban from his perspective as a provider and as a physician.
Michael Morton, who prepared the Department's Economic Impact Statement, testified concerning his qualifications to properly prepare such a study and his understanding of the meaning of the statute. He testified concerning how he prepared the statement, and that, in his opinion, the statute was impossible for anyone to comply with.
Dr. Howard Gitlow, a statistician from the University of Miami who specializes in research in the economics of abortion, explained the technical requirements of the statute. He testified as to those respects in which the Department's statement did not comply with the statutory requirements, and concluded that the Department's statement was very poor.
On December 23, 1977 the hearing officer issued the Final Order here sought to be reviewed invalidating the Department's proposed amendments to Rule Sections 10C-7.38 and 10C-7.39, Florida Administrative Code (F.A.C.), on the grounds that the proposed amendments constituted an impoundment of legislatively appropriated funds and the Department's economic impact statement was inadequate and incomplete.
The Department phrases the points argued in its briefs as follows:
I.
WHETHER THE HEARING OFFICER ERRED IN EXERCISING JURISDICTION AS TO A PETITION CHALLENGING PROPOSED AMENDMENTS TO RULES UNDER § 120.54(4), F.S., FILED BY FICTITIOUS PETITIONERS, ALICE P. AND SUSAN A., WHO COULD NOT DEMONSTRATE STANDING WITHIN THE STATUTORY 14-DAY TIME LIMIT IN WHICH TO CHALLENGE A PROPOSED RULE.
II.
WHETHER THE HEARING OFFICER ERRED IN EXERCISING JURISDICTION AS TO PETITIONS FILED AFTER THE PASSING OF THE 14-DAY TIME LIMIT WHEN THESE PETITIONS RAISE NEW ISSUES AND FICTITIOUS PETITIONERS-INTERVENORS CANNOT AND DO NOT DEMONSTRATE STANDING.
III.
WHETHER THE HEARING OFFICER ERRED IN CONFERRING STANDING UPON FEMALE MEDICAID RECIPIENTS OF CHILDBEARING AGE WHEN THE CHALLENGED PROPOSED AMENDMENTS DEAL EXCLUSIVELY WITH TERMINATION
OF FUNDS FOR ELECTIVE ABORTIONS.
IV.
WHETHER THE HEARING OFFICER ERRED IN ALLOWING THIS CASE TO PROCEED AS A CLASS ACTION.
V.
WHETHER THE HEARING OFFICER ERRED IN RULING THAT THE DEPARTMENT'S PROPOSED AMENDMENTS CANNOT BE PROMULGATED UNDER ANY CIRCUMSTANCES BECAUSE THESE AMENDMENTS CONSTITUTE THE IMPOUNDMENT OF LEGISLATIVELY APPROPRIATED FUNDS.
VI.
WHETHER THE HEARING OFFICER ERRED IN RESTRICTING THE DEPARTMENT'S EXAMINATION AS TO THE VALID AVAILABLE DEFENSE OF CHAMPERTY AND MAINTENANCE.
VII.
We do not find it necessary to consider the points in the order presented.
As to class action status, we hold that a proposed rule challenge is not, under Florida law, a proper proceeding for the maintenance of a class action.
In Cordell v. World Ins. Co., 355 So.2d 479 (Fla. 1st DCA 1978), we discussed the requisites of a class action and there referred to the...
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