Petitions for Declaratory Statement and for Variance and Waiver
Legal remedies that you may not be aware of are available to you
to help solve some problems that may arise in your professional
life. This article describes two remedies that you don’t need a
lawyer to petition for.
Recent Declaratory Statements
Petition for Declaratory Statement
Sometimes nurses find themselves in the position of asking, “Can
I, as a Florida-licensed nurse, do X?” or “If I do Y, do I run the
risk of disciplinary action by the state?” Rather than simply run
the risk and incur the attendant anxiety, you can file a petition
for declaratory statement with the Board of Nursing ahead of time.
Petitions for declaratory statement are governed by Section
120.565 of the Florida Statutes (which is available on-line at http:\\www.leg.state.fl.us), and by Chapter 28-105 of the Florida
Administrative Code (which is available on-line at http:\\fac.dos.state.fl.us).
You should also read Chapter 464, Florida Statutes, and Chapter
64B9, Florida Administrative Code (these are the laws that govern
all Florida-licensed nurses), and identify the specific statute(s)
and/or rule(s) that you believe may cause you legal trouble if you
pursue your planned course of action.
A petition for declaratory statement may be filed by any
“substantially affected person” and requests the opinion of the
Board of Nursing as to the applicability of a statutory provision,
or of any rule or order of the Board, as it applies to your
particular set of circumstances. Your petition must state “with
particularity” your set of circumstances and must specify the
statutory provision, rule, or order that you believe may apply to
the set of circumstances. Your petition must also comply with the
procedural requirements of Chapter 28-105, Florida Administrative
Code. When the Board receives a petition that meets all of the
requirements of the law, the Board will consider the petition at
its next available meeting, and you will receive a written answer.
The law doesn’t allow you to get a declaratory statement from the
Board about action you have already taken, or about someone else’s
proposed action. Nor can you get a declaratory statement from the
Board about a hypothetical situation. If your petition requests
any of these things, or if it does not include enough details to
enable the Board to respond, the Board will decline your petition.
Petition for Variance or Waiver
It may be that one of the rules of Chapter 64B9, Florida
Administrative Code, will cause you to experience a substantial
hardship or will violate principles of fairness if it is applied
to you. In such a situation, you can file a petition for variance
from, or waiver of, the rule. This type of petition is governed by
Section 120.542, Florida Statutes, and Chapter 28-104, Florida
Administrative Code.
The statute provides that variances and waivers shall be granted
when the person subject to the rule demonstrates that he or she
has achieved the purpose of the underlying statute by other means,
and when application of a rule would create a substantial hardship
or would violate principles of fairness. The statute defines
"substantial hardship" as a demonstrated economic, technological,
legal, or other type of hardship to the person requesting the
variance or waiver. "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.
As a Florida-licensed nurse, you may file a petition with the
Board of Nursing (with a copy to the Joint Administrative
Procedures Committee of the Florida Legislature), requesting a
variance or waiver from one of the rules in Chapter 64B9. Your
petition must specify the rule from which a variance or waiver is
requested, the type of action requested, the specific facts that
would justify a waiver or variance, and the reason why the
variance or the waiver requested would serve the purposes of the
underlying statute. Be sure to check Chapter 28-104 of the Florida
Administrative Code for specific requirements regarding the
petition. When the Board receives a proper petition, it will
consider the petition at the next available meeting, and you will
receive a written answer.
Please note that the Board cannot waive or vary from a statute,
only from a rule of the Administrative Code (i.e., those
requirements that begin with 64B9-).
You are certainly free to hire an attorney to draft a petition for
declaratory statement or a petition for variance or waiver, but
you can also do it yourself by following the requirements of the
statutes and rules listed here.
by Susan B. Bodell, Assistant Attorney General
Counsel to the Florida Board of Nursing |
