STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAT WILKINS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3669

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on November 6, 1986, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Patricia Wilkins (self-represented) 1630 Grange Circle

Longwood, Florida 32750

For Respondent: James Sawyer, Esquire

Department of Health and Rehabilitative Services

400 West Robinson Street, Suite 911 Orlando, Florida 32801

BACKGROUND AND PROCEDURAL MATTERS

By her application dated July 7, 1986, Ms. Wilkins requested laboratory personnel licensure in the category, "supervisor." The application was denied by the Department of HRS (HRS) on July 23, 1986.

Ms. Wilkins' timely written request for a hearing resulted in this proceeding. At the hearing, Ms. Wilkins testified in her own behalf and presented no witnesses or documentary evidence. HRS presented no witnesses and submitted Patricia Wilkins' application file, received as composite Exhibit #1, without objection.

Neither party submitted post-hearing memoranda or proposed recommended orders.

FINDINGS OF FACT

1. Patricia Wilkins has been licensed as a laboratory technologist since 1976. She held a laboratory technician license from 1974 until 1976. She has been working continuously as a technician or technologist since 1974. (Testimony of Patricia Wilkins.)

2. Ms. Wilkins obtained her Associate of Science degree from Valencia Community College in April 1974. Her major course of study was Medical Laboratory Technology. In May 1953, she was awarded a Bachelor of Science degree from Tennessee State University, with a major course of study in business. She obtained a masters in Business Administration from Vanderbilt University in July 1985. (Petitioner's application and transcript.)

   
   

3. The Department of Health and Rehabilitative Services is responsible for administering Chapter 483, F.S., related to health testing services. The Department prescribes minimum qualifications and licenses clinical laboratory personnel. (Section 483.161, F.S.)

   
   

4. Ms. Wilkins' application cites Section 10D-41.68(3)(a), Florida Administrative Code, as the rule under which she believed she qualified for licensure as a supervisor. (Petitioner's application.)

   
   

5. The Department's denial letter dated July 23, 1986, is based upon Ms. Wilkins' lack of a bachelor's degree in a chemical, physical or biological science required by Section 10D-41.68(3), Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57, F.S.

   
   

7. The Department has the authority to adopt rules prescribing the qualifications for licensure of clinical laboratory personnel. "Personnel qualifications may require appropriate education, training, or experience or the passing of an examination in appropriate subjects or any combination of these .

   . . ." Section 483.051(1), F.S.

   
   

8. Rule 10D-41.68, Florida Administrative Code, provides, in pertinent part:

   
   

   10D-41.68 Laboratory Personnel-- Qualifications--Supervisor. A supervisor shall meet one of the following requirements:

   * * *

   1. Is qualified as a clinical laboratory technologist pursuant to the provisions of Subsections 10D-41.69(1)(2) or (3) and in addition meets one of the following requirements:

      1. Holds a master's degree from an accredited academic institution with a major in Management

         or Allied Health and has 4 years of experience; or

         * * *

         
         

         This is the subsection of the rules which Ms. Wilkins claimed on her application was the authority for her licensure. A review of the remaining subsections reveals none other that relates to her circumstances.

9. Subsections 10D-41.69(1)(2) and (3), Florida Administrative Code, provide as follows:

   
   

   10D-41.69 Laboratory Personnel-- Qualifications--Technologist. A technolo- gist shall meet one of the following requirements:

   1. Holds a bachelor's degree from an accredited college or university, in a Medical Technology Program approved by the Committee on Allied Health Education and Accreditation, or

   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 12 months in a school of Medical Technology approved

      by the Committee on Allied Health Education and Accreditation, or

   3. Holds at least a bachelor's degree from an accredited college or university in one of the chemical, physical, or biological sciences and has at least 1 year of pertinent laboratory experience at the technician level covering the

   specialties in which the candidate seeks licensure provided the combination of training and experience has given the individual the

   equivalent in those specialties or subspecialties of the education and training described in Subsection 10D-41.69(1) or (2) above. A bachelor's degree in Clinical Chemistry from

   a program approved by the department according

   to the standards prescribed in Section 10D-41.78,

   Florida Administrative Code, shall be accepted in lieu of the experience requirement for licensure in the specialty of Clinical Chemistry, or

   * * *

   
   

10. Ms. Wilkins is qualified as a clinical laboratory technologist, and she holds a master's degree with a major in management and has four years of experience. However, she is not qualified as a clinical laboratory technologist pursuant to subsections 10D-41.69(1),(2) or (3).

    
    

11. As applicant, the burden of proving entitlement to licensure is on Ms. Wilkins. She admits that she does not meet the qualifications of the rules, cited above, which are now in effect and were in effect at the time of her application. She claims that she met some unspecified prior qualifications and argues that she should be "grandfathered." Ms. Wilkins cites no authority for this proposition nor has any authority been found by me to deviate from the standard principle that the relevant regulations are those in effect at the time of application. There is a "grandfather" provision in the rule establishing qualifications for laboratory supervisors. However, that rule only protects individuals already licensed as supervisors who do not meet the new requirements.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That Patricia Williams' application for licensure as a clinical laboratory supervisor be DENIED.

DONE and ORDERED this 8th day of December 1986, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of December 1986.

COPIES FURNISHED:

James A. Sawyer, Jr. District Counsel Department of Health and Rehabilitative Services

400 West Robinson Street Suite 911

Orlando, Florida 32801

Pat Wilkins

1630 Grange Circle

Longwood, Florida 32750

William Page, Jr.

Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-003669

Orders for Case No: 86-003669