DEPARTMENT OF HEALTH
v.
RASUL
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The Department of Health has standing to seek immediate judicial review of a non-final administrative order under Florida Statute § 120.68(1)(b) when review of final agency action would not provide an adequate remedy for the purported harm, such as unauthorized disclosure of confidential patient information.
[1] A party seeking immediate judicial review of a non-final administrative order under Florida Statute § 120.68(1)(b) need not demonstrate that it is adversely affected by t…
[2] The threshold for granting a petition for review of non-final agency action is whether the petitioner has sufficiently demonstrated that review of final agency action wou…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“paragraph (b) of the same subsection does not have the same 'adverse effect' requirement as a condition precedent to this court's review of non-final agency action. Instead, the threshold question for 'immediate' judicial review of a 'preliminary, procedural, or intermediate order of . . . an administrative law judge of the Division of Administrative Hearings' is whether 'review of the final agency decision would not provide an adequate remedy.'”
This establishes that the standing requirement for reviewing non-final agency action differs from that for final agency action and depends on whether final review would be an adequate remedy.
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Join FLexlaw to unlock all legal intelligenceAn administrative law judge overruled the Department of Health's objections to Dr. Rasul's anticipated administrative subpoena seeking a patient's men…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2023-2289 _____________________________
DEPARTMENT OF HEALTH,
Petitioner,
v.
IFTIKHAR RASUL, M.D.,
Respondent. _____________________________
Petition for Writ of Review Non-Final Agency Action—Original Jurisdiction.
April 5, 2023
ON AN ORDER TO SHOW CAUSE.
PER CURIAM.
In light of the petitioner’s response docketed December 23, 2023, the court discharges the order to show cause dated December 19, 2023. Within thirty days, the respondent shall show cause why the court should not grant the petition for review of nonfinal agency action. KELSEY and M.K. THOMAS, JJ., concur; TANENBAUM, J., concurs with an opinion. _____________________________
2
TANENBAUM, J., concurring.
The Department of Health asks that we review non-final action of an administrative law judge (“ALJ”). The ALJ overruled the department’s objections to Dr. Iftikhar Rasul’s anticipated administrative subpoena of a counseling center’s mental health records for one of his former patients. The department contends that this subpoena is improper because it relies on a medicalrecords release provided by the patient to the department in another context. There is no signed release from the patient in connection with the administrative subpoenas. According to the department, if the records were produced in response to the subpoena, confidential patient information would be divulged to Dr. Rasul—who otherwise is unauthorized to receive that information—that is not relevant to the administrative proceeding against him. The department asserts that if the subpoena issues 1) the department suffers from the misuse of its authorization form, fomenting distrust among patients; 2) the patient suffers from the disclosure of confidential information to a doctor accused of serious misconduct toward the patient; and3) the responding provider suffers because of the confusion over whether there in fact is authorization for the disclosure. The court initially issued an order questioning whether the department has standing to prosecute the current petition. I supported issuance of the order because section 120.68(1)(a), Florida Statutes, entitles “[a] party adversely affected by final agency action . . . to judicial review” (emphasis supplied). Upon further consideration, though, paragraph (b) of the same subsection does not have the same “adverse effect” requirement as a condition precedent to this court’s review of non-final agency action. Instead, the threshold question for “immediate” judicial review of a “preliminary, procedural, or intermediate order of . . . an administrative law judge of the Division of Administrative Hearings” is whether “review of the final agency decision would not provide an adequate remedy.” § 120.68(1)(b), Fla. Stat. Article V, section 4(b)(2) of the Florida Constitution cabins this court’s authority to review internal administrative action of the executive branch: That authority is “as prescribed by general law.”
Sarah Young Hodges, Chief Appellate Counsel, Department of Health, Tallahassee, for Petitioner.
No appearance for Respondent.