STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN A. HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0782

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on July 30, 1984. With receipt of Mr. Cooper's letter advising that respondent would not offer expert testimony other than his own, the record before the Division of Administrative Hearings closed on August 8, 1984. The parties were represented by counsel:

APPEARANCES

For Petitioner: Algia R. Cooper, Esq.

24 West Government Street, Suite 275 Pensacola, Florida 32501

For Respondent Frank Vickory, Esq.

130 North Monroe Street Tallahassee, Florida 32301

After respondent advised John Anderson Hall that he had failed the optometry licensure examination, he requested a formal administrative hearing. The parties stipulated that the case turns on the following

ISSUE.

Whether petitioner's answers to questions 34, 35 or 36 entitled him to enough points to pass the optometry examination?

FINDINGS OF FACT

1. On the July 1983 optometry pharmacology/pathology examination, Questions Nos. 33 through 36 refer to a hypothetical patient whose case history was set forth as follows:

   
   

   A 46 year old white male complains of redness of the lid margin, crusting of the lids, occasional burning and foreign body sensation. Symptoms are reported to be worse upon awakening. Patient has no visual complaints.

   
   

   SLE indicates redness of the lid margin, crusts surrounding the base of the lashes, (collarettes) and there are tiny ulcerated areas along the lid margin, and mader[os]is. TA normal OU. Lid scrubs, thus far, have not reduced patient symptoms. What medication would you add to his current regiment [sic]?

   
   

   Question No. 33 is not in issue. It called for a primary diagnosis of blepharitis, which petitioner correctly gave.

   
   

   NO CREDIT

   
   

2. Question No. 34 asks what medication is appropriate, Question No. 35 requires that dosage and frequency be specified, and Question No. 36 asks for side effects. With coded responses, petitioner answered Question No. 34 "Bleph- 10," which is a trade name for certain ophtalmic preparations containing sulfacetamide. In answer to other questions, petitioner indicated eyedrops should be used, rather than ointment. As a result, he received no credit for medication, dosage, frequency or side effects.

   
   

   SCORING METHODOLOGY

   
   

3. Petitioner's final test score was stipulated to be 66, four points shy of a passing grade. The answer to Question No. 34 (medication) was to have been scored, as follows:

   
   

   1. Best Choice (4 points)

   2. Adequate (3 points)

   3. Useless/Dangerous (0 points)

The answer to Question No. 35 (dosage and frequency) was to have been scored, as follows:

1. Optimal (2 points)

2. Marginal (1 point)

3. Inadequate (0 points)

   In the study guide prepared by respondent for applicants appears the following:

   
   

   The candidate is expected to select the best [answer] . . . only one diagnosis will be acceptable; however, more than one drug may be suitable for a given condition.

   * * *

   If a candidate selects a drug which is inappropriate for the described condition, then dosage and frequency (even if reason- able for the drug) will not be given credit. . . .

   Joint Exhibit No. 1.

   
   

   This approach is seen as in keeping with a purpose of the examination "to simulate a real patient encounter." Deposition of Pappas, p. 13. Testifying on deposition, Dr. Pappas, a Florida optometrist, explained, "Proper management means you can resolve the patient problem, not whether you know the right dosage of a medication that was ineffective for the patient's problem." At 14.

   
   

   STAPHYLOCOCCUS

   
   

4. Blepharitis, medical argot for inflammation of the margins of the eyelids, is a common precursor of inflammation of the conjunctiva, or conjunctivitis, which has symptoms that include a foreign body sensation, a scratching or burning sensation and itching. The case history's report of "occas[ional] burning and foreign body sensation" suggests a secondary diagnosis of incipient conjunctivitis. The "tiny ulcerated areas along the lid margin" reported in the case history indicate staphylococcus, not seborrhea, as the cause of the blepharitis. Staphylococcus also causes conjunctivitis.

   
   

   SULFACETAMIDE

   
   

5. The active ingredient in Bleph-10 is sulfacetamide, which is effective against staphylococcal infection. Candidates who listed ointments containing sulfacetamide in answer to Question No. 34 got full credit, as did candidate who answered "Sodium Sulamyd" which is a brand name both for an ointment and for a solution that contain sulfacetamide. Bleph-10 is also a brand name both for an ointment and for a solution that contain sulfacetamide, which petitioner knew at the time he answered the question. No candidate got credit for listing a medication that did not contain sulfacetamide.

   
   

   RELATIVE VISCOSITY

   
   

6. Eyedrops reach the margins of the eyelids and wet the eyelashes themselves. Some authorities recommend sulfacetamide drops for blepharitis unaccompanied by conjunctivitis, although more recommend an ointment. But it is possible to apply an ointment in a way that blurs the vision, which makes eyedrops more likely to be used by some patients, and eyedrops, not ointment, are indicated for conjunctivitis. Bleph-10 solution has a polyvinyl alcohol base, which keeps sulfacetamide in contact with the lid margins (and other surfaces) for three or four times as long as when an aqueous solution is used. Ointments last still longer, 30 to 60 minutes.

7. Insofar as pertinent here, the 1984 Physicians' Desk Reference lists identical indications for Sodium Sulamyd ointment, for the two Sodium Sulamyd solutions, for Bleph-10 solution and for Bleph-10 ointment. More frequent application of drugs compensates for their shorter contact period. In Florida, incidentally, optometrists cannot legally prescribe Bleph-10, Sodium Sulamyd or other sulfacetamide compounds.

   
   

8. Respondent's proposed recommended order has been considered in preparation of the foregoing. Proposed findings of fact have been adopted in substance, as to the extent they are supported by the weight of the evidence, are material, and are not cumulative or subordinate.

   
   

   CONCLUSIONS OF LAW

   
   

9. Applicants for licensure have the burden to establish their entitlement. When an agency has "set forth in writing the grounds or basis for [proposed] denial of a license," Rule 28-6.08(2), Florida Administrative Code; see Section 120.60(2), Florida Statutes (1981), "unless otherwise provided by law the applicant shall have the burden of establishing entitlement." Rule 28- 6.08(3), Florida Administrative Code. See Department of Transportation v.

   J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

10. In keeping with the parties' stipulation, it was incumbent on petitioner to show that the answers he gave to Questions Nos. 34, 35 and 36 should be awarded at least four points. The record reveals no basis on which to award credit for petitioner's answers to Questions Nos. 35 and 36, but it is clear from the evidence that "Bleph 10," petitioner's answer to Question No. 34 is entitled to four points or full credit, no less than "Sodium Sulamyd," the equivalent answer was fully credited for other examinees.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED

That respondent grant petitioner's application for licensure as an optometrist.

DONE and ENTERED this 7th day of September, 1984, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1984.

COPIES FURNISHED:

Algia R. Cooper, Esq.

24 West Government Street Suite 275

Pensacola, Florida 32501

Frank Vickory, Esq. Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mildred Gardner, Executive Director Department of Professional Regulation Board of Optometry

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY

JOHN A. HALL,

Petitioner,

vs. CASE NO. 84-0782

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Optometry pursuant to Section 120.57(1)(b)9., Florida Statutes, on December 1, 1984, in Tallahassee, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of John A. Hall vs. Department of Professional Regulation, Board of Optometry, Case No. 84-0782, and the Exceptions filed by Respondent. The Petitioner was represented by Algia R. Cooper, Esquire. The Respondent was represented by Frank Vickory, Esquire.

Upon consideration of the hearing officer's Recommended Order, the Exceptions, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted in toto, with the exception of the gratuitous remarks concerning sulfacetamide found in the penultimate paragraph of said findings and noting that it was Petitioner, rather than Respondent, who offered no expert testimony other than his own.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

   
   

3. The Board rejects the exceptions to finding of fact filed by Respondent.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1) and Chapter 463, Florida Statutes.

   
   

2. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

3. The Board rejects the exceptions to conclusions of law filed by Respondent.

   
   

4. The hearing officer's recommendation with regard to Petitioner's passing the 1983 Florida portion of the examination is hereby approved and adopted. However, as stipulated by the parties, Petitioner must successfully complete Part I and IIa of the National Board examination on or prior to August 31, 1988, to be entitled to licensure as an optometrist pursuant to other applicable provisions of Chapter 463 and the Rules of the Board.

   
   

5. There is competent, substantial evidence to support the Board's findings and conclusions.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

1. Petitioner is hereby given credit for question 34, and Petitioner shall be deemed to have passed the Florida portion of the 1983 Optometry examination.

2. Upon timely and successful completion of the additional requirements set forth in paragraph 4 above, petitioner shall be eligible as an optometrist in the State of Florida.

   
   

3. Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date of this Order is filed.

DONE AND ORDERED this 26th day of December, 1984.

Chairman

BOARD OF OPTOMETRY

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided to Algia R. Cooper, Esquire, 24 West Government Street, Suite 275, Pensacola, Florida 32501, and to Frank Vickory, Esq., Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, this 2nd day of January, 1985.

Docket for Case No: 84-000782

Orders for Case No: 84-000782