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Solutions for Overcoming the Difficulties of Complying with Rule 65D-30, Florida Administrative Code

Solutions for Overcoming the Difficulties of Complying with Rule 65D-30, Florida Administrative Code

In 2019, the Florida Department of Children and Families (“DCF”) significantly rewrote Rule 65D-30, Florida Administrative Code, related to substance abuse providers’ licensure and regulation (“Rule 65D-30”).  Since that time, many providers have found full compliance with the revised rule difficult, if not impossible.  Fortunately, if you find yourself unable to comply with the requirements of Rule 65D-30, Florida’s Administrative Procedures Act provides two routes for you to seek relief.

First, a person may seek a variance or waiver from the requirements of Rule 65D-30.  Strict application of rule requirements can lead to unreasonable, unfair, and unintended results in particular instances. The Florida Legislature recognized this fact and provided a means for state agencies to grant variances and waivers from rules. § 120.542(2), Fla. Stat. (2020).  A variance is a modification to all or part of the literal requirements of an agency rule, and a waiver is a decision by an agency to not apply all or part of a rule to a person subject to the rule.  § 120.52(21) (22), Fla. Stat. (2020).  To be eligible for a variance or waiver, a person must show that:  (1) the purpose of the underlying statute will be or has been achieved by other means and (2) application of the rule would create a substantial hardship or would violate the principles of fairness.  § 130.542(2), Fla. Stat. (2020).  “Substantial hardship” means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver.  Id.  “Principles of fairness” are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.  Id.   If a person demonstrates this two-part test, the variance or waiver “shall be granted.”  Id.  Notably, since Rule 65D-30 was finalized in August of 2019, DCF has received at least 20 requests for a variance or waiver from the requirements of the revised rule.

Second, when a person is substantially affected by a rule, the person may seek an administrative determination that the rule is invalid, if it goes beyond the powers, functions, and duties delegated by the Florida Legislature to the agency.  § 120.56, Fla. Stat. (2020).    A person shows the rule is invalid by showing either: (1) the agency did not follow the proper rulemaking procedures, (2) the agency exceeded its grant of rulemaking authority, (3) the rule enlarges, modifies, or contravenes the specific law implemented, (4) the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency, (5) the rule is not supported by logic or necessary facts or is adopted without thought or reason, or (6) the rule imposes regulatory costs which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.  § 120.52(8), Fla. Stat. (2020).  If a person succeeds, the rule or part of the rule becomes void when the time for filing an appeal expires.  Additionally, if an administrative law judge declares a rule invalid, a person is entitled to an order against the agency for the petitioner’s reasonable costs and reasonable attorney fees.  § 120.595(3), Fla. Stat. (2020).

This article is meant to provide a brief overview and points of discussion regarding this topic.  Should you have a particular issue arise or should you desire additional consultation, you may contact the Radey Law Firm.