STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAN MARIE BARTOE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1343

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 26, 1979, in the Public Safety Building Courtroom, 2050 Ringling Boulevard, Sarasota, Florida. The issue for determination at the hearing is whether the petitioner is entitled to a supervisor's license with respect to the specialty of chemistry (Special) under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes.

APPEARANCES

For Petitioner: Joan Marie Bartoe

1 Plaza Manor

Venice, Florida 33595

For Respondent Anthony DeLuccia

District VIII Counsel Post Office Box 2258

Ft. Myers, Florida 33902 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On or about May 4, 1977, petitioner Joan Bartoe filed with the respondent HRS her application for licensure as a clinical laboratory supervisor in the specialty of chemistry. Her application stated that she had completed high school and had been employed in the respiratory therapy department of Venice Hospital with duties in the area of arterial blood gas analysis since August of 1971. The application further indicated that she was a certified respiratory therapy technician (CRTT).

   
   

2. By letter dated May 10, 1977, the respondent notified petitioner that, based upon the information given in the application, she was ineligible for licensure because she did not have the experience required under Rule 10D- 41.24(14)(e), Florida Administrative Code. This section requires graduation from high school and at least seven years of experience in chemistry (special).

3. The petitioner petitioned for an administrative hearings, contending that she complied with the requirements for licensure under Rule 10D-41- 24(14)(d), F.A.C., inasmuch as she was a certified respiratory therapy technician and had been employed at the Venice Hospital since August 30, 1971, with approval for the arterial blood gas analysis. This Rule requires the successful completion of a one year respiratory therapy technician training course approved by the Council on Medical Education of the American Medical Association (AMA), or equivalent accepted by the Department of Health and Rehabilitative Services, and at least five years of experience in chemistry (special).

   
   

4. The petitioner introduced documents at the hearing which illustrate that the American Association for Respiratory Therapy and the Florida Society for Respiratory Therapy have both taken the position, as pertinent to this proceeding, that persons certified by the National Board for Respiratory Therapy, Inc. as respiratory therapy technicians (CRTT) are equivalent to graduate of one year respiratory therapy technician programs accredited by the AMA. Both organizations have urged the respondent to accept this equivalency for eligibility under the Florida Clinical Laboratory Law and Rule 10D-41, Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

5. The rules of HRS with regard to clinical laboratories provide that one who applies on or before June 30, 1977, who is employed in a Florida laboratory on January 1, 1977, and who otherwise meets the qualifications of Rule 10D- 41.24(14), may be licensed in the specialty of chemistry (special) without examination. Other qualified persons must successfully complete a written examination prior to licensure.

   
   

6. In this case, the petitioner applied for licensure prior to June 30, 1977, and she was employed in a Florida laboratory on January 1, 1977, performing chemistry (special) procedures. The issue determinative of this cause is whether she fell within any of the other qualifications described in Rule 10D-41.24(14).

   
   

7. Petitioner does not hold a bachelor's degree nor has she completed two years of special academic study. Thus, the qualifications of subsections (14)(a) through (c) are not applicable. Subsection 14(e) requires graduation from high school and at least seven years of experience in chemistry. Petitioner's application indicates that she is a high school graduate, but that she had a little less than six years of experience at the time of her application. Thus, she did not meet the qualifications of Rule 10D- 41.24(14)(e).

8. The only remaining qualification for licensure reads as follows: "(d) Successful completion of a one year

   respiratory therapy technicians training

   course approved by the Council on Medical Education of the American Medical Assoc- iation, or equivalent accepted by the Department of Health and Rehabilitative Services and at least five years of experience in chemistry (special," Rule 10D-41.24(14)(d), F.A.C.

   Admittedly, petitioner had the five years of experience required as a part of this qualification. It is petitioner's contention that she meets the remaining portion of this requirement because she is certified by the National Board for Respiratory Therapy as a respiratory therapy technician (CRTT), and that such certification is equivalent to graduation from a one year respiratory therapy technician training course.

   
   

9. Petitioner has presented no evidence that the respondent has accepted this certification by the National Board as the equivalency of the training course approved by the AMA. Nor has petitioner presented evidence that the AMA approves such certification in lieu of an approved one year respiratory therapy technician training course. Absent such proof, the petitioner could not qualify for licensure without the successful completion of a written examination. The fact that the Florida Society and the American Association for Respiratory Therapy have taken a position favorable to the petitioner's contention in this regard does not alter the plan meaning of Rule 10D-41.24(14)(d). In order to meet the requirements of said qualification, the applicant must either complete the one year training course approved by the American Medical Association or an equivalent course accepted by the Department of Health and Rehabilitative Services. The respondent has strictly interpreted the qualifications for licensure under Rule 10D-41.24(14) in two final orders rendered on April 25, 1978. Richard Sobel v. Dept. of HRS (Case No. 77-1647) and David J. Knize v. Dept. of HRS (Case No. 77-1537). The petitioner has not sustained its burden of proving that she is entitled to licensure as a clinical laboratory supervisor in the specialty of chemistry without the successful completion of a written examination.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for a clinical laboratory supervisor's license without examination be DENIED.

Respectfully submitted and entered this 15th day of August, 1979, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Joan Marie Bartoe

1 Plaza Manor

Venice, Florida 33595

Anthony DeLuccia District VIII Counsel Department of HRS Post Office Box 2258

Ft. Myers, Florida 33902

Secretary David H. Pingree Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 77-001343

Orders for Case No: 77-001343