STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSTANCE M. LICCIONE, )

)

Petitioner, )

)

vs. ) Case No. 85-3657

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on December 13, 1985 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James A. Liccione

168 S.W. Selva Court

Port St. Lucie, Florida 33452

For Respondent: K. C. Collette, Esquire

111 Georgia Avenue, Third Floor West Palm Beach, Florida 33401

BACKGROUND

This matter arose when petitioner, Constance M. Liccione, received a letter dated September 30, 1985 from respondent, Department of Health and Rehabilitative Services (HRS), advising that its Clinical Laboratory Advisory Committee had denied her request for waiver of "the rules regarding examination in the technical specialties." At that time, petitioner was·seeking licensure as a clinical laboratory supervisor, and had requested a waiver of the requirement that she "retake the 5 specialties" on the licensure examination scheduled for October 24, 1985.

By letter dated October 12, 1985, petitioner requested a formal hearing to contest the denial of the waiver. In her petition, Liccione contended that her request had not been considered in an "honest and meaningful impartial hearing," that

one member of the Clinical Laboratory Advisory committee was unqualified to rule on her request and should have disqualified herself, and that new rules adopted by HRS effective June 6, 1985, and which govern the examination in question, should not apply to Liccione.

The matter was forwarded by respondent to the Division of Administrative Hearings on October 24, 1985, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated November 13, 1985, a final hearing was scheduled on November 27, 1985 in Stuart, Florida. At the request of respondent, the matter was rescheduled to December 13, 1985 in West Palm Beach, Florida.

At final hearing petitioner testified on her own behalf and presented the testimony of her father, James A. Liccione. She also offered petitioner's exhibits 1-4. All were received in evidence. Respondent presented the testimony of Dr. Patricia Johns and offered respondent's exhibits 1-4. All were received in evidence.

Neither party ordered a transcript of hearing and consequently this Recommended Order was prepared without the benefit of same. Neither party filed proposed findings of fact and conclusions of law.

As framed by petitioner in her request for hearing, the issues herein are whether petitioner is entitled to a waiver of the five specialty areas on the clinical laboratory supervisor examination, and whether she is subject to the new rules governing the examination, which became effective in June, 1985.

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

FINDINGS OF FACT

1. Petitioner, Constance M. Liccione, is a licensed clinical laboratory technician, having received said license in October, 1979 from respondent, Department of Health and Rehabilitative Services (HRS).

   
   

2. In the summer of 1983, petitioner began making inquiry with HRS concerning the requirements to take the clinical laboratory supervisor examination. Because of either a communication's breakdown, or a failure of the agency to promptly reply to her request, she was not told of the specific requirements until 1984, and it was only in April, 1985 that she was able to get confirmation from HRS that she had nine years and one month of clinical experience, and when coupled with her 90

   semester hours of academic study in the science field, she was eligible to sit on the supervisor examination. For some unexplained reason, she also was unable to obtain an application form from HRS and finally she had to obtain one from a local junior college.

   
   

3. On April 5, 1985, Liccione filed her application to take the October, 1985 supervisor examination. At that time, the examination consisted of two parts: (a) administration and supervision, and (b) technical specialties for which the applicant wished to be licensed. In June, 1985, HRS adopted a sweeping change in its rules (Chapter lOD-41) governing eligibility for all supervisor examinations taken after October, 1985. Under the new rules, HRS requires an applicant for licensure as a supervisor to meet all new requirements for a clinical technologist. This will require Liccione to either have a bachelor's degree in science, or to have completed 90 semester hours or equivalent and to have completed a one-year internship in an approved school of Medical Technology. In addition, in view of the more stringent eligibility requirements, the examination no longer includes testing on the technical specialties, but only has testing in the administration and supervision area. Liccione meets neither of the two new requirements. Therefore, she is barred from taking any examination after the October 1985 examination until she either obtains a college degree in science or completes a one-year internship. Liccione is understandably upset because it took almost two years to learn from HRS if she was qualified under the old rules to take the supervisor examination, and therefore she missed 3 or 4 opportunities to take the examination under the old criteria. Because of the new rules, it is now an all or nothing proposition on the October, 1985 examination.

4. When Liccione became aware of the impending rule change, she contacted HRS to determine if she could get a waiver of the old rule which required her to take an examination in various technical specialties. The old rules required supervisor candidates to pass an examination in each of the specialties or subspecialties for which the license is sought. Based upon her nine plus years of experience, Liccione desired a waiver in the five technical specialties of microbiology, serology, chemistry, hematology and immunohematology for which she is already licensed as a technologist. After considerable give and take between the two, HRS agreed to present her request for a waiver to the Clinical Laboratory Advisory Council (Council). The Council considered the same on October 3, 1985 and denied her request. That prompted the instant proceeding. As a result of HRS's decision, she was required to take both parts of the old examination. Her results are not of record.

5. There have been no waivers of the technical specialty part of the examination granted since HRS began regulating clinical laboratories in 1967. However, under the provisions of Rule 10D-41.27, Florida Administrative Code, as they existed prior to June, 1985, examination in each of the specialties area was permissive, and not mandatory since the rule merely required that ". . . supervisors. . . may be required to pass an examination given by (HRS) in each of the specialties. . . for which the license is sought." (Emphasis added.)

   
   

6. Liccione presently has an HRS issued temporary supervisor license which expires after she receives the results of the October, 1985 examination. She is acting as the supervisor of a clinical laboratory for a medical doctor in Port St. Lucie, Florida and as such is in charge of all technical aspects of the operation. She has written the procedures manual for the laboratory which was approved by HRS inspectors, and is active in all five specialties for which she seeks a waiver. As noted above, by this time she has almost ten years of practical experience, and has worked in hospitals and laboratories in both a technician and supervisor capacity. These qualifications were not disputed.

   
   

7. At final hearing HRS did not question the above qualifications but relied instead upon statistics which reflected that candidates with qualifications comparable to Liccione had done poorly on the examination. It also pointed out that when Liccione took the specialties examination for a technician, her scores were "never. . . more than 4% higher than minimum established competency in any technical specialty." From this, HRS opined that Liccione's chance of success on the examination was not good, and that she was not entitled to the requested waiver. It also fears that a bad precedent will be set if Liccione's request for a waiver is approved. However, the undersigned finds the uncontradicted practical experience, education and training to be the more persuasive and credible evidence on the issue of whether such training, education and experience is adequate to warrant a waiver of the five technical specialties on the examination. In this regard, it is noted that there was no evidence to show that such experience, education, and training was not comparable to the new requirements in Rule 10D-41.69(2), Florida Administrative Code, or that such experience, education and training was not adequate to demonstrate competence in the five specialties in question.

   CONCLUSIONS OF LAW

   
   

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

9. Rule 10D-41.27, Florida Administrative Code, as it existed prior to June 5, 1985, provided in part as follows:

   
   

   As part of the qualifications for licensure,

   . . . supervisors. . . may be required to pass an examination given by the Department of Health and Rehabilitative Services in each of the specialties or subspecialties for which the license is sought.. (Emphasis added)

   
   

   Therefore, for those persons taking the examination on or before October, 1985, the requirement that one pass the examination in each of the specialties for which the license is sought is not mandatory. It is a request for a waiver of this requirement that is in issue in this proceeding.

   
   

10. Although not explicitly clear, in essence Liccione contends (a) her practical experience is sufficient to waive the technical specialty part of the old examination since it demonstrates adequate competency in the specialty areas, or (b) her practical experience equates to the new qualifications set forth in new Rule 10D-41.69(2), Florida Administrative Code, effective June 6, 1985. Those qualifications are:

    
    

    (2) Successful completion of three years of academic study, a minimum of 90 semester hours or equivalent in an accredited college or university which meets the requirements for entrance into, and the successful completion of a course of training of at least twelve months in a school of Medical Technology approved by the Committee on Allied Health Education and Accreditation.

    Only the former argument is relevant to this proceeding.

    
    

11. The preponderance of evidence reveals that Liccione's experience, training and education demonstrate sufficient and adequate competence in the specialty areas of microbiology, serology, chemistry, hematology and immunohematology so as to justify the waiver of examination in these technical specialties on the October, 1985 examination. Therefore, if she passes the administration and supervision part of the examination, she should be issued a supervisor's license. In reaching this conclusion, it is noted that HRS's fears of establishing an undesirable precedent are unfounded, since Liccione appears to be the only candidate who requested this type of waiver on the

    October, 1985 examination, which was the last examination governed by the old rules.

    
    

12. Liccione has also requested that she not be subject to the eligibility standards adopted by the new rules. However, she has offered no legal theory to support this proposition, and the undersigned can find no legal justification to grant relief. Therefore, should she not successfully pass the administration and supervision part of the October, 1985 examination, she must qualify for all succeeding examinations under the criteria established by the new rules. Parenthetically, it is noted that, unlike the old rules, the new rules do not appear to authorize a waiver of any provisions, and Liccione will presumably have to satisfy the degree or internment requirements should she wish to take the new examination.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that petitioner's request for a waiver of the technical specialty part of the October, 1985 examination be GRANTED, and if petitioner receives a passing grade on the administration and supervision portion of the examination, she be issued a clinical laboratory supervisor license. All other requests for relief should be DENIED.

DONE and ORDERED this 20th day of January, 1986, 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 2Oth day of January, 1986.

COPIES FURNISHED:

James A Liccione

168 S.W. Selva Court

Port St. Lucie, Florida 33452

K. C. Collette, Esquire

111 Georgia Ave., Third Floor West Palm Beach, Florida 33401

Docket for Case No: 85-003657

Orders for Case No: 85-003657