Division of Administrative Hearings, Florida
Latest Update: Dec. 14, 1987
The issues for consideration are those promoted by a petition in challenge to Rule 21Q-10.001, Florida Administrative Code, and to the application form used by the Board in its licensure of certified optometrists. The attack on the rule is announced in Count I to the Petition and the allegations against the form may be found in Count II. Within Count I, it is alleged: Rule 21Q-10.001, Florida Administrative Code, is an invalid exercise of delegated legislative authority because it indicates that coursework and clinical training in general and ocular pharmacology received by the optometrist applicant during his basis optometric curriculum is acceptable as proof of partial or complete compliance with the requirements of Section 463.0055(2)(a), Florida Statutes (1986 Supp.) The acceptability of coursework from the applicant's basic optometric curriculum is not set forth in the statute, and is contrary to and expansive of both the letter and intent of the authorizing statute. Rule 21Q-10.001 is also an invalid exercise of delegated legislative authority because it deems as acceptable for the requisite one year of supervising experience in a clinical setting the obtaining of such experience in an academic or non academic environment. The Rule further indicates that one year of experience in an academic setting is "understood to mean three quarters or two semesters," while one year of supervising experience in a non academic setting is understood to mean a 12 month period. This is contrary to and expansive of the letter and intent of the authorizing statute. Rule 21Q-10.001 is also an invalid exercise of delegated authority because it purports to accept as satisfaction of the statutory requirement of "successful comple- tion of an examination approved by the Board which tests knowledge of general and ocular pharmacology" an examination received by the optometrist while in optometric school or at the conclusion of a postgraduate course. This is contrary to and expansive of the letter and intent of the authorizing statute. In short, the Rule authorizes the mere substitution of optometry school training for all of the additional require- ments which the legislature has indicated must be met for an optometrist to be designated a "certified optometrist." Rule 21Q-10.001 thus alters, lessens the require- ments of, and otherwise amends Section 463.0055, Florida Statutes (1986 Supp.) As to Count II, it is alleged: The application form used by the Board to determine whether optometrists are "qualified" to be designated as certified optometrists purports to establish four categories of potential grounds for desig- nation as a certified optometrist. Category one is for those optometrists relying solely on the coursework and clinical training in optometry school, and recognizes as evidence of certificate ability a diploma from a given optometry school in a given year or in a subsequent year. Category two optometrists are those seeking designation based on graduation from certain optometry schools in a given year, combined with completion of continuing education courses since graduation. Category three applicants rely on having completed specific college courses at specific optometry schools either alone or in combination with continuing education courses offered by the Florida Optometric Association following graduation. Category four applicants for certification are those who do not meet the requirements of the prior three categories, but claim certificability based on documented coursework and clinical training. The application form is sub- stantially more detailed than the Board Rule, and imposes requirements and solicits information not specifically required by the Rule or by Statute. Specifically, neither the statute nor rule require proof of graduation from a designated optometry school in a given year. The result is more lenient requirements for coursework and education than the statute requires. Allowing proof of graduation in a given year as evidence of successful completion of certain optometric coursework is contrary to and greatly expansive of the letter and intent of the authorizing statute. It allows substitution of a diploma for the requirement of completion of 110 hours of approved transcript quality coursework and clinical training in general and ocular pharmacology, which the Florida Legislature has seen fit to require of applications for certification. The application form being used by DPR staff and the Board in the certification process is an agency statement of general applicability that implements, interprets, or prescribes law or policy. It also imposes requirements and solicits information not specifically required by statute or existing Board rule. The form is therefore a "rule" as defined by Section 120.52(15), Florida Statutes. The application form has not been adopted as a rule pursuant to Section 120.54, Florida Statutes (1986 Supp.), as required by Chapter 120, Florida Statutes (1986 Supp.). It therefore cannot be used in the certification process as it is presently being so used. There was also included within this petition document a Count III which by its terms sought the participation by the Petitioners in the process of licensing certified optometrists, through a Section 120.57(1), Florida Statutes, hearing. Petitioners expressed the belief that they were entitled to this relief based upon a consideration of Chapters 120, 458 and 463, Florida Statutes. It was concluded that this form of relief was not available through a Division of Administrative Hearings proceeding and no consideration has been given to those allegations set forth in Count III.The order struck down 21Q-10.001(3) because it allowed the substitution of exams in course work in school to substitute for an exam by the Board of Optometry.
