STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELLY GANS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3670

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings in Ft. Lauderdale, Florida, on January 2, 1987. The transcript of the hearing was filed on March 30, 1987. Proposed findings of fact and conclusions of law were submitted by the parties by May 18, 1987. Rulings on the proposed findings of fact are made in the Appendix to this Recommended Order.

For Petitioner: Shelly Gans, Pro Se

For Respondent: Michael O. Mathis, Esquire

Tallahassee, Florida ISSUE

The issue is whether Ms. Gans is qualified to sit for the technologist examination in the specialty of clinical chemistry. The Department of Health and Rehabilitative Services had denied Ms. Gans the opportunity to sit for the examination on the grounds that she did not have sixty (60) college semester hours, with 20 hours in academic science such as chemical, physical, or biological science as required by Rule 10D-41.069(5), Florida Administrative Code.

FINDINGS OF FACT

1. The Petitioner, Shelly Gans, graduated from high school in June, 1973. She attended Broward Community College during terms 1 and 3 of the 1973-74 academic year, where she earned fifteen (15) credits. She does not have two years of academic study as required by Rule 10D-41.069(5). She then attended Sheridan Vocational Technical Center from February, 1974 to February, 1975. She was thereafter employed by Dr. Stephen Katzman from March, 1975 through August, 1979 as a technologist doing laboratory testing including phlebotomy. She was thereafter employed at Florida Medical Center as a technologist doing blood banking, hematology, chemistry and part time phlebotomy.

   
   

2. Ms. Gans passed the October, 1983 proficiency examination for clinical laboratory technologists given by the U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control. After passing the

   U.S. Department of Health and Human Services examination, Ms. Gans was licensed as a clinical laboratory technician by the Department of Health and Rehabilitative Services Office of Licensure and Certification, Laboratory Personnel Licensure, through June 30, 1986.

   
   

3. In October, 1984, Ms. Gans was examined by HRS for licensure as a clinical laboratory technologist in the specialties of clinical chemistry, hematology and immuno- hematology. She passed the immunohematology examination but failed the hematology and clinical chemistry examinations. She re-applied and took those examinations in April, 1985 when she passed the hematology examination but failed the chemistry examination a second time. Under Rule 10D- 41.071(9), Florida Administrative Code, Ms. Gans was required to take continuing education before she could re-apply to sit for the chemical chemistry examination a third time.

   
   

4. Ms. Gans enrolled in Broward Community College in the second term of the 1985-1986 school year and took three hours in general chemistry. That course ended after January 1, 1986. She re-applied for examination as a technologist in the specialty of clinical chemistry on July 14, 1986. Her application for that examination was denied on August 14, 1986 because she did not have sixty (60) semesters of college credits which the Department believed was required under Section 10D-41.C69(5), Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1) and 120.60, Florida Statutes (1985).

   
   

6. A laboratory technologist is licensed in the specialties or subspecialties of microbiology, serology, clinical chemistry, hematology, immunohematology, histology, cytology, radioassay, blood gas analysis or cytogentics. The application for licensure must include the education, training and experience of the applicant and a designation of the clinical laboratory specialties in which licensure is sought. Rule 10D-41.072(1)(b) and (c), Florida Administrative Code.

   
   

7. To qualify for licensure, a technologist is "required to pass an examination given by the department in each of the specialties or subspecialties for which the license is sought." Rule 10D-41.071(1), Florida Administrative Code. If a candidate fails an examination twice the candidate is required to demonstrate retraining or continuing education prior to retaking the examination. Rule 10D-41.071(9), Florida Administrative Code.

   
   

8. In order to qualify to sit for any of the specialty examinations, the applicant must meet education requirements set in Rule 10D-41.069, Florida Administrative Code which states in pertinent part:

   
   

   "A technologist shall meet one of the following requirements:

   * * *

   (6) For applicants qualifying prior to January 1, 1986, achievement of a satisfactory grade on the U.S. Office of Health and Human Services approved proficiency examination in clinical

   laboratory technology and at least 6 years of pertinent experience in an approved laboratory."

   
   

9. Ms. Gans passed the U.S. Office of Health and Human Services examination. Her examination score and her prior years of experience, together with successful completion of two HRS examinations, qualified her for the licensure as a technologist she currently holds in immunology and hematology.

   
   

10. The Department of Health and Rehabilitative Services takes the position that the option of using past experience and the U.S. Office of Health and Human Services examination can be used only by those applicants whose applications are received by the Department prior to January 1, 1986. This position is not tenable, based on the language of the rule. If the Department had meant 10D-41.069(6) to phase out the option of using clinical experience and success on the federal test as a way of substituting for the other academic training requirements found in Rule 10D-41.069(1), (2), (3), (4) or (5), Florida Administra- tive Code, the rule should read:

    
    

    "For applicants qualifying applying for specialty or subspecialty examinations prior to January 1, 1986, achievement of a satisfactory grade on the U.S. Office of Health and Human Services approved proficiency examination in clinical laboratory technology and at least 6

    years of pertinent experience in an approved laboratory."

    
    

11. Here, Ms. Gans already "qualified" as a technologist prior to January 1, 1986 because she actually was licensed as a technologist in immunohematology based on the examination that she took in October, 1984, and was then licensed in hematology in April, 1985 after passing the reexamination in that area.

    
    

12. Rule 10D-41.069(6), as currently written, does have the effect of phasing out the option of substituting success on the federal examination and having six years of experience for the other academic requirements in certain circumstances. If an applicant had passed the federal examination and had the requisite experience under Rule 10D-41.069(6), but had not taken the Department of Health and Rehabilitative Services examination in one of the technologist specialty areas as required by Rule 10D-41.071, Florida Administrative Code, that applicant would not have "qualified" as a technologist "prior to January 1, 1986" under Rule 10D-41.069(6), Florida Administrative Code and would not come within that grandfather provision. Those persons who were already licensed as a technologist under some specialty or subspecialty as of January 1, 1986 may use the education grandfather provision found in Rule 10D-41.069(6), Florida Administrative Code, indefinitely into the future unless the rule is amended.

RECOMMENDATION

It is RECOMMENDED that Shelly Gans be permitted to sit for the technologist examination in clinical chemistry when it is next given because she meets the requirements of Rule 10D- 41.069(6), as currently written and has taken retraining in clinical chemistry after she twice failed the examination, as is required by Rule 10D-41.071(9), Florid Administrative Code.

DONE and ORDERED this 23rd day of July, 1987, in Tallahassee, Florida.

WILIAM R. DORSEY, JR.

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 23rd day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3670

The following constitute my rulings on proposed findings of fact pursuant to Section 120.59(2), Florida Statutes, (1985).

Rulings on Proposed Findings by Petitioner

The proposals by the Petitioner are generally in the form of argument rather than proposed findings of fact. Relevant proposed factual findings have been made in the Recommended Order.

Rulings on Proposed Findings by Respondent

1. Covered in Finding of Fact 4.

2. Covered in Finding of Fact 4.

3. Covered in Finding of Fact 1.

4. Rejected as an improper reading of Rule 10D-41.069(6).

5. Rejected because the issue is not when notice of the rule was given, but what the rule says.

6. Rejected as based on hearsay. Moreover, even if it was the intention of Centers of Disease Control that the Department of Health and Human Services examination not be a permanent means of credentialing in lieu of education and experience requirements, the Department of Health and Rehabilitative Services has not implemented that intent in the rule which it enacted.

7. Rejected as unnecessary.

8. That Ms. Gans' application was received after January 1, 1986 is covered in Finding of Fact 4.

9. Rejected as unnecessary.

COPIES FURNISHED:

Michael O. Mathis Staff Attorney

HRS Office of Licensure & Certification

2727 Mahan Drive

Tallahassee, Florida 32308

Shelly Gans

4163 Southwest 67th Avenue Apartment 104C

Davie, Florida 33314

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-003670

Orders for Case No: 86-003670