STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD P. CARLO, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2021

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter at Lakeland, Florida, on January 25, 1978, after due notice, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Randy Fischer, Esquire

726 South Missouri Avenue Lakeland, Florida 33801

For Respondent: Anthony DeLuccia, Esquire

District VIII Counsel Department of Health and

Rehabilitative Services Post Office Box 2258

Ft. Myers, Florida 33901 ISSUE PRESENTED

Whether Petitioner should be issued a license as a technologist pursuant to Chapter 483, Florida Statutes.

FINDINGS OF FACT

1. On June 17, 1977, petitioner filed an application with respondent for licensure as a clinical laboratory technologist with specialty in biophysics. The application reflected that petitioner had received an A.S. Degree in Chemistry from Nassau Community College, Garden City, New York, based on his attendance from June 1971 to September 1975. His transcript from that institution reflects that he earned 76 credit hours during his period of attendance primarily in science courses. The application also reflected that he had received a certificate based on satisfactory completion of a twelve-month course in nuclear medicine technology at the School of Nuclear Medicine Technology, Northport V.A. Hospital, Northport, New York, on September 3, 1976. The application also showed prior employment as a staff nuclear medical technologist with the Department of Nuclear Medicine at Sun Coast Hospital, Largo, Florida, from September 1976 to March 1977. Also, the application

   reflected that petitioner was registered with the American Registry of Radiologic Technologists (ARRT) as a Registered Nuclear Medicine Technologist. In a letter dated May 25, 1977, to respondent, petitioner stated that although his qualifications did not strictly coincide with those listed in respondent's rules for qualification, he believed that they were adequate for licensure. (Testimony of Carlo, Composite Exhibit 1)

   
   

2. Petitioner's application was reviewed by respondent and he was advised by letter of July 18, 1977, that he was ineligible for the requested licensure and that his application was therefore denied because he did not have a year of experience under Rule 10D-41.25(12)(m), F.A.C. Petitioner thereafter requested an administrative hearing and, in a letter of October 25, 1977, to respondent, he stated that because his qualifications were more than sufficient for the American Registry of Radiologic Technologists, he believed that they should be sufficient for licensure in the State of Florida even though they did not specifically satisfy the state's licensure requirements.

   
   

3. Respondent's reviewing personnel determined that Nassau Community College was an accredited school and that the course of training that respondent received at the Northport V.A. Hospital was approved by the Council on Medical Education of the American Medical Association. Respondent compared petitioner's qualifications with the criteria for licensure as a technologist in the specialty of biophysics as set forth in Rule 10D-4l.25 (12), F.A.C., which set forth 14 separate methods of obtaining licensure by various combinations of qualifications. It was determined that petitioner did not qualify in any instance. This was due to the fact that he did not have a minimum of 90 semester hours college credits, or at least 60 semester hours in a nuclear medicine program, or have at least one year of experience in nuclear medicine technology in an approved laboratory. One of the foregoing requirements is necessary to meet the standards for qualification in those situations where petitioner might otherwise qualify. (Testimony of Bentz)

   
   

4. Petitioner testified that he was valedictorian of his class at Northport V.A. Hospital and received an award as the highest scholastic achiever. Although he conceded that he only had earned 76 hours of college credits, he believed that his attendance at various seminars and workshops, and the fact that most of his 76 hours of credits were in science courses, should be taken into consideration in determining whether he has the equivalent of 90 hours of credits. He further believes that his registration by the ARRT is sufficient evidence of his qualifications to be licensed as a technologist in spite of the regulatory requirements. He has been employed as a nuclear medicine technologist in the laboratory of Lakeland General Hospital, Lakeland, Florida, since June 10, 1977. (Testimony of petitioner)

   
   

5. Due to the fact that petitioner now has over one year of experience in nuclear medicine technology in an approved laboratory, he would be eligible to be licensed upon successful completion of a required examination. (Stipulation of parties)

   
   

   CONCLUSIONS OF LAW

   
   

6. Chapter 483, F.S., "The Florida Clinical Laboratory Law," provides in Section 483.021 a statement of legislative policy which reads in part that "The protection of public and individual health requires licensure of clinical laboratories and certain of their employees, the meeting of certain minimum standards, as well as certain other necessary safeguards as authorized by this

   chapter." Section 483.051 dealing with the powers and rules of the respondent agency provides pertinently as follows:

   
   

   "483.051 Powers and rules of Department of Health and Rehabilitative Services.--

   The Department of Health and Rehabilitative Services shall adopt rules, to effectuate the purposes and provisions of this chapter, which shall include, but not be limited to, the following subject matters:

   1. REGISTRATION AND LICENSING; QUALIFICATION.--

      The Department of Health and Rehabilitative Services shall . . . license all clinical laboratory personnel meeting the requirements of this chapter, and shall prescribe the qualifications necessary for clinical labo- ratory personnel to be licensed. Personnel qualifications may require appropriate edu- cation or experience or the passing of an examination in appropriate subjects or any combination of these "

      
      

      Section 483.041(5) defines "clinical laboratory personnel" to include technologists. Section 483.161 establishes statutory qualifications for clinical laboratory personnel and provides that respondent "shall prescribe minimal qualifications for clinical laboratory personnel in . . . biophysics . .

      . and shall issue a license to any person who meets the minimum qualifications and who demonstrates that he possesses the character, training and ability to qualify in those areas for which the license is sought."

      
      

7. Respondent has implemented the above statutory provisions by prescribing the qualifications for a technologist in the specialty of biophysics in Rule 10D-41.25(12), F.A.C. Petitioner concedes that he does not meet the various qualification standards in that he has not earned 90 semester hours in an accredited college or university, or a minimum of 60 semester hours in an accredited nuclear medicine technology program, nor had he the requisite one year of experience in nuclear medicine technology in an approved laboratory on the date of his application. His main contention is that his training and education, plus his registration with a national group that registers nuclear medicine technologists, should be sufficient to qualify him for licensure. It may well be that petitioner's qualifications in fact provide him with as sufficient a background and knowledge to carry out the duties of a technologist as the more formal requirements contained in respondent's rules. However, this is a matter that must be addressed in separate proceedings under Chapter 120 to amend or challenge the validity of current rules.

   
   

8. It is acknowledged by the parties that petitioner now has the necessary one year of experience in nuclear medicine technology in an approved laboratory which, together with his already completed twelve month training course in nuclear medicine technology, would qualify him for licensure under Rule 10D- 4l.25(12)(m), upon reapplication and successful completion of a written examination specified in subparagraph (o) of the rule. Petitioner does not qualify for waiver of the examination as specified in (o) because he did not meet the one-year experience requirement by June 30, 1977.

RECOMMENDATION

That petitioner's application for licensure as a clinical laboratory technologist in the specialty of biophysics be denied without prejudice to immediately file a new application - setting forth his current qualifications for licensure.

DONE and ENTERED this 6th day of February, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Anthony DeLuccia, Esquire District VIII Counsel Department of HRS

Post Office Box 2258

Ft. Myers, Florida 33901

Randy Fischer, Esquire 726 South Missouri Avenue Lakeland, Florida 33801

Docket for Case No: 77-002021

Orders for Case No: 77-002021