STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. BARATTA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-395

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuit to notice, this cause came on for hearing before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 6, 1980, in Miami, Florida. The Petitioner, Michael J. Baratta, was represented by Richard N. Krinzman, Esquire, Miami, Florida; and the Respondent, Department of Health and Rehabilitative Services, was represented by Morton Laitner, Esquire, Miami, Florida.

The issue for determination is whether Petitioner's application for a technologist's license pursuant to The Florida Clinical Laboratory Law should be approved. The Petitioner testified on his own behalf and further presented the testimony of Esther Hinkes and Dr. Faye Lynn Leverett. The Respondent presented the testimony of George S. Taylor, Jr. After the conclusion of the hearing, the Respondent submitted a proposed recommended order To the extent that Respondent's proposed findings of fact are not incorporated in this order, they are rejected as being either not supported by competent, substan- tial evidence, immaterial and irrelevant to the issues for determination herein, or as constituting conclusions of law as opposed to finding of fact.

FINDINGS OF FACT

1. Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. Petitioner applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology and chemistry. On February 11, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours or HEW exam required under Section 10D-41.25(9) or (10), Florida Administrative Code.

   
   

2. Petitioner holds a high school equivalency diploma. Petitioner attended the Manhattan Medical Assistants' School in 1960-1961 and graduated from that school, receiving a diploma as a Laboratory Technologist. When Petitioner attempted to obtain a transcript of his studies at that school, he discovered that the school is no longer in business; and, accordingly, he is unable to obtain a transcript reflecting his studies there. Petitioner does not have a bachelor's degree from an a"credited college or university. Through the years, Petitioner has taken a number of continuing education courses, but these courses have not been affiliated with an accredited college or university.

3. Prior to moving to Florida, petitioner was employed for seventeen years as a Laboratory Technologist at the New Rochelle Hospital Medical Center and was a supervisor of the evening and night shifts at that Center. Petitioner's witnesses testified as to the quality of Petitioner's work as an employee of the Department of Pathology at South Miami Hospital.

   
   

4. Petitioner has taken the U. S. Public Health Service proficiency examination in clinical laboratory technology. A satisfactory score on all sections of that examination must be obtained in order to Pass the examination. Petitioner passed each section of the examination except for the hematology section. He attempted to retake the examination but was advised that the March 30, 1979, examination was the last test scheduled by HEW. That examination has been administered on five different occasions between the years 1975 and 1979. There is no information available as to whether the HEW examination will or will not ever be administered again. That examination is not the same as the licensure examination given by the Respondent but can act as a prerequisite, if satisfactorily completed, to the state licensure examination.

   
   

5. An approved course of study is available to Petitioner at Miami-Dade Community College. Personnel at that school have advised him that he would receive thirty-two credits for his life's work and that he would be required to take six or seven examinations plus approximately a year's worth of courses. Petitioner does not desire to attend that college even on a part-time basis several times a week, since he is employed at two full-time jobs at this time.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Sections 120.57 ad 120.60, Florida Statutes.

   
   

7. Section 483.051, Florida Statutes (1979) authorizes the Department of Health and Rehabilitative Services to license all clinical laboratory personnel and to prescribe the qualifications necessary for licensure. It further provides that the Respondent may require appropriate education or experience or the passing of an examination in appropriate subjects or any combination of these factors, and further requires the Respondent to conduct examinations to determine the qualification of clinical laboratory personnel for licensure. In implementation of this statutory responsibility, Respondent has adopted Rule

   10D-41.25, Florida Administrative Code, which sets forth ten alternative methods by which an applicant can qualify to take the State's examination for licensure as a technologist. Methods 1 through 9 require formal education at an accredited college or university ranging from a completion of sixty semester hours (or the equivalent in quarter or trimester hours) to a bachelor's degree. The parties hereto have stipulated that Petitioner has not met the educational requirements set forth in Section 10D-41.25(1)- (9), Florida Administrative Code. The other method for qualification is found in Section 10D-41.25(10)and requires the achievement of a satisfactory grade in the U. S. Public Health Service approved proficiency examination in clinical laboratory technology and at least six years of pertinent experience in an approved laboratory. Although Petitioner clearly has fulfilled the experience requirement under this provision, he has failed to achieve a satisfactory grade on the HEW examination.

   
   

8. Petitioner's argument that he should be licensed as a technologist since the HEW examination has not been given for the last one and one-half years and is not scheduled to be given on any specific date in the future, if it ever

   will be, is without merit. A satisfactory grade on that examination is simply one of the ways in which Petitioner can qualify for licensure. In the absence of successfully meeting that specific qualification, then Petitioner must meet one of the alternative qualifications set forth in Section 10D-41.25. It must be borne in mind that the HEW examination is not in lieu of the examination required by statute to be administered by the Department but rather is one of the prerequisites to taking the state examination. Should the HEW examination be given, and should petitioner successfully pass that examination, then he would qualify to take the state licensure examination. In the absence of achievement of a satisfactory grade on that examination, then Petitioner is required to satisfy the educational requirements to qualify for licensure.

   
   

9. Ruling was reserved on Respondent's "motion for directed verdict" at the conclusion of the Petitioner's evidence. That motion is hereby denied. However, Petitioner herein has failed to meet his burden of proof to affirmatively demonstrate that he is qualified to be licensed.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law.

RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Collins Building

Room 101

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980.

COPIES FURNISHED:

Richard N. Krinzian, Esquire 8585 Sunset Drive, Suite 190

Miami, Florida 33143

Morton Laitner, Esquire Dade County Department of

Public Health

1350 N.W. 14th Street Miami, Florida 33125

Mr. Alvin J. Taylor, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 80-000395

Orders for Case No: 80-000395