STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANICE HELLER, )

)

Petitioner, )

)

v. ) CASE NO. 82-3023

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated, Hearing Officer, DONALD R. ALEXANDER, on April 10 and 11, 1984 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Thomas G. Sherman, Esquire

3081 Salzedo Street

Coral Gables, Florida 33134

For Respondent: Claire D. Dryfuss, Esquire

Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301 BACKGROUND

This proceeding was begun when petitioner, Janice Heller, filed an application dated June 18, 1982 with respondent, Department of Health and Rehabilitative Services, seeking licensure as a lay midwife pursuant to Section 485.011, Florida Statutes (1981). On September 24, 1982, the agency issued its proposed agency action in the form of a letter wherein it stated its intention to deny the application on seven specific grounds enumerated therein.

Petitioner thereafter requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed denial. The matter was forwarded by respondent to the Division of Administrative Hearings on November 3, 1982, with a request that a Hearing Officer conduct a formal hearing.

The matter was initially scheduled for final hearing on April 11, 12 and 13, 1983 in Fort Lauderdale, Florida. On March 29, 1983, Hearing Officer Smith, to whom the case was initially assigned, continued the final hearing pending a challenge by petitioner of certain Department rules involving licensure requirements for lay midwives in Case No. 83-0204R. The rules in question were ultimately held to be invalid by Final Order issued on May 5, 1983 and this order was affirmed by the First District Court of Appeal in HRS v. Petty-Eiffert and Heller, 443 So. 2d 266 (Fla. 1st DCA 1983). As is pertinent here, the rule challenge eliminated grounds 1, 5 and 6 in the Department's letter of denial

dated September 24, 1982. Thereafter, the final hearing was rescheduled to April 10 and 11, 1984 in Fort Lauderdale, Florida. On April 9, the case was reassigned to the undersigned hearing officer.

At the final hearing, petitioner testified on her own behalf and presented the testimony of Dr. Max Marcus, a pediatrician, Michael Harrison, a City of Hollywood firefighter-paramedic, Lynn Williams, a mother whom petitioner assisted-in delivery, Jerry Farese, the husband of one of petitioner's clients, Pamela Jane Regan, a former client of petitioner, Susan Farese, a former client, and Carol Nelson, Cheryl McGhan and Sara Pinkman, all licensed midwives.

Petitioner also offered petitioner's exhibits 1-6; all were received in evidence. Respondent presented the testimony of Dr. Max Marcus, John McMillan and Michael Harrison, firefighters-paramedics for the City of Hollywood, Dr.

William H. Kirkley, an obstetrician-gynecologist, Gary Clarke, Assistant Staff Director of the Department's Health Program Office, Janice Heller, Catherine Howarth, records custodian at Hollywood Memorial Hospital, Dr. Joel D. Schram, an obstetrician-gynecologist, Patricia Boone, nurse midwife, and John Seaman, chief watch supervisor for the Broward County Sheriff's Department. Respondent also offered respondent's exhibits 1-5; all were received in evidence except exhibits 1 and 2. It also proffered the testimony of Frank Norwitch, an expert in forensic document examination.

The transcripts of hearing (four volumes) were filed on April 26, 1984. Proposed findings of fact and conclusions of law were filed by the parties on May 15, 1984 and have been considered by the undersigned in the preparation of this order. Findings of Fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Janice Heller's application for licensure as a midwife should be granted.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Janice Lynn Heller, mailed an application for licensure as a midwife to respondent, Department of Health and Rehabilitative Services (HRS), on June 12, 1982. The application was received by HRS on June 22 and forwarded to its Public Health Nursing Office on June 23.

   
   

2. Heller resides at 1042 Tyler Street in Hollywood, Florida. She has resided in that city for 24 years. She is 32, years old, married, and holds an Associates Degree from Miami-Dade Community College; Her background includes working in her father's medical office, a suicide prevention hotline, and in the Department of Pharmacology at the University of Miami. She has acquired skills in cardiopulmonary resuscitation, has attended seminars and clinics in prenatal care, instructing couples in prepared home births, infancy and bonding, has read extensively on the subject of child births, and has attended several hundred births as an assistant to other midwives. She has also trained as a birth coach to the Association of Child Birth at Home International. In addition, she has attended and been primarily responsible for the delivery of twenty-seven newborns at home under the supervision of a physician.

   
   

3. At the time the application was filed, Rule 10D-36.22, Florida Administrative Code, prescribed the requirements for licensure as a midwife. As

   is pertinent here, they included a requirement that the application be accompanied by evidence of the applicant having "attended within a one year period under the supervision of a duly licensed and registered physician not less than fifteen cases of labor including the care of not less than fifteen mothers and newborn infants during the lying-in period." Heller submitted proof of having attended sixteen births under the supervision of a duly licensed and registered physician. Fifteen such births were supervised by Dr. Marcus, a Sunrise, Florida pediatrician, and one by Dr. A. E. Gillig, all during a one year period. Therefore, Heller met this requirement. Although respondent contended Dr. Marcus did not verify the actions of Heller, this contention is rejected in view of Marcus having testified that Heller is reasonably competent and skilled to practice midwifery based upon his observations of Heller at fifteen births, and his having discussed with her the principle of sterilization, her knowledge of sterile technique, her knowledge of what complications to look out for in child birth, and other matters relating to prenatal care.

   
   

4. Rule 10D-36.22 also required that the applicant obtain "(a) written recommendation for licensure by the county medical director attesting to the applicant's ability to complete standard birth certificate forms and that the applicant's behavior and habits are consistent with safe hygiene practices, and the equipment and settings to be used in practice are safe and sanitary." In June, 1982 Heller resided in Broward County. The assistant county medical director at that time was Dr. George Trodella. Because Trodella had publicly stated he would never recommend licensure of a lay midwife in Broward County under any circumstances, and because Heller believed the requirement for Trodella's recommendation to be illegal, she suggested in her transmittal letter that HRS find an alternative method for carrying out this requirement. Accordingly, this portion of the application was incomplete.

   
   

5. After reviewing the application, the Department's Public Health Nursing Office did not contact Heller about the incomplete item in her application, but instead sent the application to Dr. Trodella on June 26 for his review and recommendation as to Heller's qualifications. Trodella responded by letter dated July 22, 1982, and attached certain correspondence he had received about Heller from the City of Hollywood Fire Department while responding to an emergency call involving Heller and a client named Farese. The letter reflected adversely upon Heller, and Trodella concluded Heller was "not qualified at this time for licensure."

   
   

6. On September 24, 1982, HRS wrote Heller and advised her that it intended to deny her application on the following grounds:

   
   

   1. You have not provided a record of having attended 15 births within one year as required by FAC 10D-36.22.

   2. In the case of Susan Farese, you failed to summon a physician immediately when a

      serious complication developed as required

      by FAC 10D-36.26(3), or failed to competently diagnose her condition.

   3. In the case of Susan Farese, there is evidence that you attempted to remove an adherent placenta, in violation of Florida Statutes 485.081.

   4. In the case of Susan Farese, there is evidence that you incompetently administered oxygen to a patient (one-half to one-third the recommended flow rate) Administration of any substance for therapeutic purposes, except 1 percent fresh solution of silver nitrate, is specifically prohibited by 10D-36.27 FAC.

   5. In the case of your patient Mrs. Pinkdon, you failed to refer her to a physician and attempted to attend her delivery, despite the fact she could not be expected to have a normal uncomplicated labor and delivery as required by Florida Statutes 485.081 and FAC 10D-36.25.

   6. You have not received a written recommendation for licensure by the county medical director as required by 10D-36.22 FAC.

   7. You have generally failed to show qualifications and fitness to practice lay midwifery as required by FAC 10D-3.22(3) and failed to comply

      with the public health laws of the State of Florida as required by F.S. 485.071.

      
      

      The letter of denial promoted the instant proceeding.

      
      

7. Heller requested an administrative hearing to contest the denial of her application on October 26, 1982. Thereafter, on January 21, 1983 Heller filed a petition to determine invalidity of rules wherein she challenged the validity of Rules 10D-36.22(1)(a), 10D-36.22(1)(d) and 10D-36.27, Florida Administrative Code. These rules were ultimately declared to be invalid, Petty-Eiffert and Heller v. DHRS, DOAH Case No. 83-204R, Final Order entered May 5, 1983, and the final order was affirmed by the First District Court of Appeal in DHRS v. Petty- Eiffert and Heller, 445 So. 2d 266 (Fla. 1st DCA 1983). The result of that proceeding was to eliminate grounds 1, 5 and 6 In HRS's letter of September 24 as a basis for denying Heller's application. HRS accordingly now relies upon grounds 2, 3, 4 and 7 for denying her application.

   
   

8. The gravamen of the Department's letter of September 24 centers around a client of Heller named Susan Farese. Heller and Sarah Pinkman, a licensed midwife, attended and assisted in the labor and delivery, of Farese's child on March 22, 1982 at Farese's home in Broward County. Prior to the birth, the midwives ascertained that there was a hospital some five to ten minutes away, should complications arise. The child was delivered at 3:45 a.m. on the morning of March 22 without complications and received a perfect Apgar score of ten. However, during the third stage of labor, which involves the delivery of the placenta, a problem arose. Normally, the placenta separates within a few minutes after birth and is accompanied by a gush of blood. In Farese's case, the first gush of blood occurred around 4:15 a.m., or thirty minutes after delivery of the child, but the placenta did not separate and deliver. When the placenta did not separate within the next few minutes and a steady trickle of blood continued, they immediately assessed the problem as a partial separation and, contrary to the allegations in the letter of September 24, Pinkman, not Heller, began administering oxygen to Farese at a rate of between four and six liters per minute. At the same time, Pinkman called both Dr. Marcus and a fire rescue unit at the Broward County Fire Department. It is unclear as to the specific time the fire rescue call was made, but the call was eventually relayed

   to a fire rescue unit at 4:28 a.m. It arrived at Farese's house at 4:34 a.m. The mother and child were later transported to a local hospital where the placenta was removed by a doctor. Mother and baby are now doing fine.

   
   

9. Both Heller and Pinkman were well aware that it was dangerous and improper to attempt to manually remove Farese's placenta. Based upon the testimony and evidence, it is found that Heller did not "attempt to remove an adherent placenta" as charged in the letter of denial. 1/

   
   

10. Although the total amount of fluids passed by Farese was between 500 and 1000 cubic centimeters, not all of this amount was blood. It was also customary for midwives to wait 30 minutes after delivery for the placenta to detach. Indeed, although the Department had no rule governing this time period, it has since adopted a rule which allows a midwife to wait 30 minutes for delivery of the placenta before consulting a physician. Therefore, it was not inappropriate to wait for thirty minutes in Farese's case, to thereafter assess the situation, and to call a physician and a fire rescue unit within the next two to three minutes.

    
    

11. Heller is aware of the basic clinical techniques involved in being a lay midwife, including taking pulse and blood pressure, listening to fetal heart tones, external palpitations, checking for dilation, checking urine, insuring that the birth setting is appropriate, sterilizing instruments, and recognizing how labor is progressing. She is also aware of the importance of sterile techniques, and in this vein, has never had infection arise in either mother or baby in any births she has been involved with.

    
    

12. Heller is skilled in recognizing complications that could arise during labor, and is able to legibly fill out birth certificates.

    
    

13. Two other licensed midwives, Carol Nelson and Sara Pinkman, both considered Heller to be well qualified to be licensed as a midwife. This opinion is based upon their knowledge, familiarity and personal observations of Heller while she assisted and otherwise aided expectant mothers in labor and delivery.

    
    

14. The Department has licensed at least four other applicants as midwives prior to Heller who did not obtain the recommendation of the county medical director in the county in which they resided. They include Cheryl McGhan, Doreen Virginiak, Heather Blanchard and Sara Pinkman. HRS did not explain this deviation from its rules.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

16. Because petitioner applied for licensure in June, 1982, the provisions of Chapter 485, Florida Statutes (1981) are controlling. 2/ Section 485.031, Florida Statutes, prescribes the qualifications that must be met by an applicant in order to practice midwifery. As is pertinent here, they require the applicant to possess the following qualifications:

    
    

    (4)(b) Have attended under the supervision of a duly licensed and registered physician not less than 15 cases of labor and have had the care of

    at least 15 mothers and newborn infants during lying-in period of at least 10 days each; and shall possess a written statement from said physician that she has attended such cases in said 15 cases, with the date engaged and address of each; and that she is reasonably skilled and

    competent and establish the fact that she is reasonably skilled and competent to the satisfaction

    of the department;

    
    

    The evidence discloses that Heller did indeed satisfy the foregoing requirements in that she presented evidence of having attended sixteen deliveries under the supervision of two physicians. The evidence also discloses that Heller is reasonably skilled and competent in the practice of midwifery, and that she presented sufficient evidence to the Department to demonstrate such skill and competence. The Department's contention that Heller "failed to summon a physician immediately when a serious complication developed (with Farese)" is without merit, for Heller's colleague (Pinkman) called both a fire rescue unit and a doctor within two or three minutes after the initial gush of blood.

    Similarly, the Department's assertion that Heller "attempted to remove (Farese's) adherent placenta" is contrary to the evidence, for there was no adherent placenta, and Heller did not attempt to remove the placenta, manually or otherwise. The evidence also belies the contention that Heller "incompetently administered oxygen to a patient" for it was Pinkman, not Heller, who administered the oxygen to Farese. Finally, the preponderance of evidence reflects that Heller did "show qualifications and fitness to practice lay midwifery," thereby negating the Department's last ground for denial.

    
    

17. Petitioner also contends that notwithstanding the above, she is entitled to licensure pursuant to Subsection 120.60(2), Florida Statutes, in that respondent did not deny her application until more than ninety days had transpired after filing the same. The record reveals that the application was received by HRS on June 22, 1982 and that the letter of denial was issued on September 24, 1982, or more than ninety days after it was initially filed. Subsection 120.60(2) provides in pertinent part as follows:

    
    

    (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30

    days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions,

    and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license

    unless the agency timely notified the applicant within this 30-day period.

    
    

    . . . Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions, unless a shorter period of time for agency action is provided by law.

    . . . Any application for a license not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties whichever is latest, shall be deemed approved and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.

    
    

    Respondent contends that the application was incomplete on its face since it contained no recommendation from the county medical director, that its submission of the application to Dr. Trodella for his review and recommendation constituted a "timely" request for additional information, that the application was not complete until it received Dr. Trodella's letter of July 22, 1982, and that the ninety day period accordingly began on that date. Petitioner counters by arguing that she was never contacted by HRS regarding the incomplete item, that Trodella did not fill out the application but simply wrote a letter in opposition to Heller's application, that the requirement for Trodella's recommendation was later found to be invalid, and that HRS has licensed at least four other applicants who had identical "incomplete" applications.

    
    

18. The law is quite explicit as to the time periods in which certain steps in the licensing process must be accomplished. First, if an application is incomplete on its face, as was that of Heller, the agency must notify the applicant within 30 days after receipt of the application. If it does not do so, it waives its right to deny the application due to the error or omission. Similarly, a failure to timely request the additional information from the applicant within the thirty day period also constitutes a waiver of the agency s ability to toll the ninety day period while it corrects that error or omission. Here HRS noted the omission on the face of the application but, contrary to the terms of the statute, failed to contact Heller about the same. - Instead, it wrote the assistant county medical director seeking his comments on the applicant. Under the terms of the statute, this "request for additional information" did not toll the running of the ninety day period, and by failing to issue its letter of denial until September 24, 1982, the agency failed to comply with the ninety day requirement embodied in Subection 120.60(2). Therefore, the application was automatically approved by operation of law after the ninety days had run.

    
    

19. One other matter requires discussion, that being the grounds that may be raised by HRS in denying the application. The agency takes the position that it is not strictly bound to the reasons enumerated in its letter of September 24, 1982, but may raise any other grounds it deems necessary at the final hearing. It reasons that the case is de novo, and not a review of the agency's preliminary action, and accordingly, anything is fair game to be debated at the final hearing. It also contends that notice of newly discovered grounds need not be given to petitioner, for the de novo nature of the hearing allows all such matters to be raised.

    
    

20. HRS correctly states that it is not locked into the reasons given in its letter of intent to deny the application. However, basic due process considerations cannot be cavalierly discarded, and the opposing party must be given reasonable notice and an opportunity to prepare and counter such newly raised issues. DeCarion v. Department of Environmental Regulation, 445 So. 2d

    619 (Fla. 1st DCA 1984). In the case at bar, several newly discovered matters were raised by the agency for the first time at final hearing without any advance notice to petitioner. This obviously caught petitioner by surprise and was prejudicial to her case. Further, a continuation of the final hearing to allow Heller to prepare a response to these issues would be patently unfair since the application had already been pending for almost two years. Therefore, such matters have been properly disregarded or stricken from the record by the undersigned, and consideration has been given only to those issues raised in the letter of September 24, 1982.

    
    

21. It is concluded that Janice Heller should be grant a lay midwife license by virtue of the percentency failing to grant or deny her application within ninety days after receipt of same as required by Subsection 120.60(2), Florida Statutes, and because Heller has met all requirements contained in Chapter 485, Florida Statutes, and Part I of Chapter 10D-36, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Janice Heller for licensure as a lay

midwife be GRANTED.

DONE and ENTERED this 4th day of June, 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 4th day of June, 1984.

ENDNOTES

1/ Indeed, Dr. Joel Schram, who treated Farese after she was admitted a hospital in Hollywood, stated that Farese did not have an "adherent placenta" as charged in the letter of denial.

2/ Chapter 485 has since been replaced by Chapter 467, Florida Statutes, which contains new requirements for licensure as a midwife.

COPIES FURNISHED:

Thomas G. Sherman, Esquire 3081 Salzedo Street

Coral Gables, Florida 33134

Claire D. Dryfuss, Esquire Building One, Room 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003023

Orders for Case No: 82-003023