Freeman v. State, Department of Health & Rehabilitative Services

District Court of Appeal of Florida

Freeman v. State, Department of Health & Rehabilitative Services

436 So. 2d 964, 1983 Fla. App. LEXIS 19947

CourtDistrict Court of Appeal of Florida

DecidedJuly 26, 1983

DocketNo. 82-1390

StatusPublished

Cited by2 cases

This text of 436 So. 2d 964 (Freeman v. State, Department of Health & Rehabilitative Services) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Freeman v. State, Department of Health & Rehabilitative Services, 436 So. 2d 964, 1983 Fla. App. LEXIS 19947 (Fla. Ct. App. 1983).

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Opinion

PER CURIAM.

This is an appeal' from the denial by the Department of Health and Rehabilitative Services of a petition to initiate rule-making pursuant to Section 120.54(5), Florida Statutes (1981). Three separate proposed rules were in issue. As to the first, which concerned requirements for the collection of data regarding medicaid patients from regulated nursing homes, we find no legislative or other requirement that the terms of the proposal be adopted. Compare, Guerra v. State Department of Labor & Employment Security, 427 So.2d 1098 (Fla. 3d DCA 1983). The department’s failure to do so was therefore a matter solely within its discretion, with the exercise of which we may not interfere. Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978).

Since, moreover, the petitioners could not for that reason have compelled the enactment of their proposal in any case, it follows that if there were in fact a procedural error by the agency in considering the “data” question—an issue we do not decide—it could not have been “material” to the ultimate result and thus could not require reversal or remand. Sec. 120.68(8), Florida Statutes (1981).

The petitioners also sought the issuance of rules, both regulating the percentage of medicaid patients required to be accepted by nursing homes which have chosen to participate in the program, and mandatorily requiring all Florida nursing homes to agree to that participation. We find no legislative authority for the enactment of any such regulation by the HRS. See Secs. 400.23(2); 400.071(6), Florida Statutes (1981); 42 U.S.C. §§ 1396, 1396a. As the agency determined below, it thus lacked the power to adopt these proposed rules even if it wished to do so. See Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980); State of Florida Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980).

Affirmed.

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PER CURIAM.

This is an appeal' from the denial by the Department of Health and Rehabilitative Services of a petition to initiate rule-making pursuant to Section 120.54(5), Florida Statutes (1981). Three separate proposed rules were in issue. As to the first, which concerned requirements for the collection of data regarding medicaid patients from regulated nursing homes, we find no legislative or other requirement that the terms of the proposal be adopted. Compare, Guerra v. State Department of Labor & Employment Security, 427 So.2d 1098 (Fla. 3d DCA 1983). The department’s failure to do so was therefore a matter solely within its discretion, with the exercise of which we may not interfere. Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978).

Since, moreover, the petitioners could not for that reason have compelled the enactment of their proposal in any case, it follows that if there were in fact a procedural error by the agency in considering the “data” question—an issue we do not decide—it could not have been “material” to the ultimate result and thus could not require reversal or remand. Sec. 120.68(8), Florida Statutes (1981).

The petitioners also sought the issuance of rules, both regulating the percentage of medicaid patients required to be accepted by nursing homes which have chosen to participate in the program, and mandatorily requiring all Florida nursing homes to agree to that participation. We find no legislative authority for the enactment of any such regulation by the HRS. See Secs. 400.23(2); 400.071(6), Florida Statutes (1981); 42 U.S.C. §§ 1396, 1396a. As the agency determined below, it thus lacked the power to adopt these proposed rules even if it wished to do so. See Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980); State of Florida Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980).

Affirmed.

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436 So. 2d 964, 1983 Fla. App. LEXIS 19947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-state-department-of-health-rehabilitative-services-fladistctapp-1983.

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