Florida Appeals Court Finds Peer Review Rule "Invalid"

Rule Dubbed Vague, Arbitrary, Capricious

By Editorial Staff

Florida's Chiropractic Peer Review Committee has recently been under substantial scrutiny. One reason was that six of the seven committee members are also consultants for DRS, a utilization review company (please see "Florida's Peer Review Committee -- Protecting the Public or Unduly Influenced?" Nov. 18, 1994, "DC").

On a second front, a lawsuit was filed in May by Richard Merritt, DC, to challenge the validity of the Florida administrative code (Rule 59N-17.007) that governs peer review. The contention was that the rule contained no standards or criteria for evaluation, but instead allowed the peer review committee members to only rely on their own judgment and experience in determining if treatment and charges were appropriate. The case was dismissed, but Dr. Merritt appealed the case to the Florida District Court of Appeals.

According to Florida statute 460.4104, the peer review committee can file a complaint against a health care provider with the department of professional regulation if reasonable cause exists to believe the health care provider has violated "any provision of [chapter 460] or chapter 455 or rules adopted pursuant thereto...". As a guide to the peer review committee, the statute states that "criteria or standards established for peer review "shall be developed to conform with _medically accepted standards_" (emphasis added). Statute 460 defines "medically accepted standards" for peer review purposes as "those standards of care, skill, and treatment which are recognized by a reasonably prudent similar health care provider as being acceptable under similar conditions and circumstances."

So the key issue was "whether the challenged rule establishes valid criteria to govern the board's actions." Because "medically accepted standards" are dependent on the opinions of other "similar health care provider(s)," the appellate court found that: "Rather than elaborate the statutory standard, the challenged rule replaces the standard with the personal judgment of the members of the peer review committee." The court concluded that the challenged rule "enlarges, modifies, or contravenes the statute and is invalid ..." In addition, the court found that the rule "vague, fails to establish adequate standards, and vests unbridled discretion in the committee" and "arbitrary and capricious."

The Florida Peer Review Committee must put all reviews on hold until the Florida Board of Chiropractic can draft and adopt a new rule governing reviews, a process expected to take many months. Members of the Florida Chiropractic Peer Review will hold a Rules Committee Development Workshop July 6-7 in Naples, Florida.

Those reviews that have occurred recently will more than likely be challenged.

The Florida Peer Review Committee judged 144 cases in 1994. In all 144 they found inappropriate management. More that half of the cases involved State Farm, and the private review company, DRS.

Dr. Ronald Scott, who chairs the Florida Peer Review Committee, declined to comment.