Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 35 No. 41, October 16, 2009 issue of the Florida Administrative Weekly.

STATEMENT OF LOWER ESTIMATED REGULATORY COST: In the notice of proposed rulemaking published on September 29, 2009, the department prepared a statement of the estimated regulatory cost for the role of the impartial decisionmaker, which is an essential part of the authorizing statute and rule. The estimate was approximately $250 per hour. Karen D. Walker, Attorney, Holland and Knight, LLP, Attorneys for Florida Association of Area Agencies on Aging, Inc., submitted a proposal for a lower cost regulatory alternative to the proposed rule within 21 days after the notice of proposed rulemaking was published in the Florida Administrative Weekly. Pursuant to Section 120.541(1)(b), F.S., the department is publishing the lower cost regulatory alternative and rendering a decision in this publication whether to accept or reject the alternative in favor of the proposed rule.

The lower cost regulatory alternative states the following: “The impartial decisionmaker shall allow a maximum of four hours for the protestor's presentation of its protest and a maximum of four hours for the AAA’s response to each protest. In the event of multiple protests, the decisionmaker shall allocate the time as necessary to ensure that the hearing shall not exceed one day. These time limits may be extended by the decisionmaker only in extraordinary circumstances and upon a finding that a party's due process rights will be violated if the hearing is limited to one day.”

After careful review and consideration, the department rejects the lower cost regulatory alternative for the following reasons:

(1) Imposing a time limit on the impartial decisionmaker to render a fair decision would be counter-productive to the intent of the statute. The statute reads: “The dispute resolution mechanism established in the rule shall include a provision for a qualified, impartial decisionmaker who shall conduct a hearing (emphasis added) to determine whether the area agency’s proposed action is contrary to the area agency’s governing statutes or rules or to the solicitation specifications.” It is doubtful all hearings conducted would require a time frame of over 8 hours. However, to place a time limit, as recommended, would be arbitrary and impinge on a party’s due process rights.

(2) The extension of the time limit “only in extraordinary circumstances,” as recommended, is arbitrary. These “circumstances” are not fleshed out, thus leaving each decisionmaker with the ability to make a decision based on his or her judgment whether or not to extend the time limit.

58C-1.0031 Lead Agency Dispute Resolution.

(1) No change.

(2) IMPARTIAL DECISIONMAKERS.

(a) through (b) No change.

(c) Individuals interested in designation as an impartial decisonmaker must complete DOEA Form CCE-001, CCE Impartial Decisionmaker Application, ____, 2010 ~~2009~~, which is hereby incorporated by reference. The form may be obtained from the following website: http://elderaffairs.state.fl.us/english/ruleforms/CCE-001.doc.

(3) through (6) No change.

(7) REVIEW OF DECISION.

(a) Pursuant to Section 430.203(9)(a), F.S., in the event a party requests a review of the decision by the decisionmaker, the partiesy must utilize, and mutually agree upon, an individual associated with one of the entities referenced in subparagraphs 1. and 2. of this paragraph for this review.:

1. through 2. No change.

(b) The reviewer must not have any conflict of interest that would affect his or her impartiality. A conflict of interest is defined as the reviewer, or any reviewer family member, having current or past business association with any of the parties involved in the dispute.

(b) through (d) renumbered (c) through (e) No change.

Rulemaking Authority 430.203(9)(a) FS. Law Implemented 430.203(9)(a) FS. History–New______.