Section 2-42.002 - Discrimination Based on Health Care Choices(1) Definitions - As used in this rule and Section 381.00316, F.S.: (a) The "department" means the Department of Legal Affairs.(b) "Discrimination" or to "discriminate" is the act of treating a person differently, wherein that treatment results in an action prohibited by Section 381.00316, F.S.(c) "Subject" is the business entity or governmental entity that the complainant alleges to have discriminated against the complainant in a manner prohibited by Section 381.00316, F.S.(2) The department shall investigate a legally sufficient complaint alleging a violation of Section 381.00316, F.S., or any rule adopted thereunder. The complaint must be submitted on form DBHC-001, Complaint Discrimination Based on Health Care Choices (06/23), which is hereby incorporated by reference and available at https://www.flrules.org/Gateway/reference.asp?No=Ref-15786, or http://myfloridalegal.com/healthcarechoices. A complete complaint may be submitted either electronically at http://myfloridalegal.com/healthcarechoices/webform, a paper hard copy of the complaint form may be obtained at http://myfloridalegal.com/healthcarechoices, and submitted via email to: healthcarechoices@myfloridalegal.com, or a paper hard copy may be mailed to: The Department of Legal Affairs, Health Care Choices Program, PL-01, The Capitol, Tallahassee, Florida 32399-1050.(3) Complainants who submit an incomplete complaint shall be notified in writing and will have thirty (30) days from the date of the notice of incompleteness to submit to the Department the missing information or materials. Failure to timely provide the requested missing information or materials shall result in dismissal of the complaint.(4) A complaint is legally sufficient if it contains all the information required by the complaint form and ultimate facts that demonstrate that a violation of Section 381.00316, F.S., or any rule adopted thereunder, has occurred. In order to determine legal sufficiency, the department may require supporting information or documentation. The subject may submit a written response to the information contained in the complaint within twenty (20) days after service. The department will consider the complaint and supporting documentation as well as the subject's written responses when determining whether probable cause exists.(5) When the investigation is complete, the department shall prepare and submit to the Attorney General's designee the department's investigative report. The report shall contain the investigative findings and the recommendations of the department concerning the existence of probable cause. Upon review of the investigative findings and recommendations, the designee shall either find that there is probable cause that one or more violations of Section 381.00316, F.S., or any rule adopted thereunder, has occurred or that there is insufficient evidence to support a finding of probable cause and that the complaint should be dismissed. If probable cause is found, the department shall file a formal administrative complaint against the subject that complies with Rule 28-106.2015, F.A.C., and prosecute that complaint pursuant to Chapter 120, F.S., and Rule Chapter 28-106, F.A.C.(6) An evidentiary hearing before an administrative law judge from the Division of Administrative Hearings shall be held pursuant to Section 120.57(1), F.S., if there are any disputed issues of material fact. The department shall have the burden to prove the allegations contained in the administrative complaint by a preponderance of evidence. The administrative law judge shall issue a recommended order pursuant to Section 120.57(1), F.S., and the department shall determine and issue the final order in each case which shall constitute final agency action. The penalty set forth in the final order shall be imposed in accordance with Section 381.00316(6), F.S.(7) The department may resolve a complaint pursuant to Section 120.57(4), F.S., and impose a penalty through informal disposition by consent order.(8) In determining the amount of fine to be levied for a violation, the Attorney General may consider any of the following factors:(a) Whether the subject knowingly and willfully violated Section 381.00316, F.S.(b) Whether the subject has shown good faith in attempting to comply with Section 381.00316, F.S.(c) Whether the subject has taken action to correct the violation.(d) Whether the subject has previously been assessed a fine for violating Sections 381.00316, F.S.(e) Any other mitigating or aggravating factor that fairness or due process requires.Fla. Admin. Code Ann. R. 2-42.002
Rulemaking Authority 381.00316(9) FS. Law Implemented 381.00316 FS.
Adopted by Florida Register Volume 49, Number 158, August 15, 2023 effective 8/27/2023, Amended by Florida Register Volume 50, Number 050, March 12, 2024 effective 3/28/2024.New 8-27-23, Amended 3-28-24.