Why does the use of the term “may” in a rule create a problem?
Depending upon the context in which it is used, the term “may” can create the opportunity for the exercise of unbridled discretion by the agency. If a rule states that the agency “may” take a particular action, courts have interpreted this to mean that the agency may or may not take the action. See City of Miami v. Save Brickell Avenue, 426 So.2d 1100 (Fla. 3rd DCA 1983). For example, if a rule states that a hospital “may” be reimbursed for a surgical procedure, it is necessarily implied that the hospital may not be reimbursed. The hospital must not be required to guess whether or not it will be reimbursed, and the agency may not make the decision based upon whim or caprice. In order to avoid the possibility of unbridled discretion, a rule should state what an agency will do, and include any conditions under which the policy will not be applied.
