STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA SUAREZ MUJICA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5298

) BOARD OF MEDICAL EXAMINERS, ) OCCUPATIONAL THERAPIST COUNCIL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on December 6, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: David R. Littman, Esquire

BERLEY & LITTMAN, P.A.

202 Brickell Executive Tower 1428 Brickell Avenue

Miami, Florida 33131

For Respondent: M. Catherine Lannon, Esquire

Office of the Attorney General The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issue presented is whether the Respondent's supervised fieldwork experience demonstrated in her application to take the examination for licensure as an occupational therapist qualifies as prerequisite, supervised fieldwork experience under section 468.209(2), Florida Statutes.

PRELIMINARY STATEMENT

By Order dated August 16, 1989, the Occupational Therapist Council denied the application of Respondent to take the examination to be licensed as an occupational therapist. The denial was based on Petitioner's interpretation that Respondent lacked the necessary fieldwork experience required by section 468.209, Florida Statutes.

By petition dated August 24, 1989, Petitioner contested the determination of Respondent and on September 28, 1989, Respondent requested that the Division of Administrative Hearings appoint a Hearing Officer to conduct a formal hearing in this case. On December 4, 1989, Petitioner filed a memorandum in support of her petition.

During preliminary matters at the hearing, Respondent filed a written motion for correction of the style of the case and requested that the Occupational Therapist Council be included therein. The motion was entertained and granted. Respondent also filed a written motion for official recognition of section 455.213, Florida Statutes (1987); Chapter 458, Florida Statutes (1987 and 1988 Sup.); Part III, Chapter 468, Florida Statutes (1987); and Rules 21M- 12, 21M-13, 21M-14, and 21M-15, Florida Administrative Code The motion was entertained and granted. Respondent also moved to dismiss the petition as moot. Ruling on Respondent's motion to dismiss was reserved and is addressed by this recommended order.

Petitioner presented the testimony of two witnesses and offered two exhibits which were received into evidence. Respondent presented the testimony of one witness and offered three exhibits which were also received into evidence. Respondent's exhibits 2 and 3 were received for the limited purpose of demonstrating that different forms and methods are used to evaluate an occupational therapist and an occupational therapist assistant. A transcript of the proceeding was filed on January 5, 1990. By stipulation of the parties, the provisions of Rule 28-5.402, Florida Administrative Code were waived and proposed recommended orders were due on January 25, 1990. Neither party filed proposed recommended orders.

FINDINGS OF FACT

1. On January 27, 1989, Gloria Suarez Mujica, Petitioner, applied for examination to be licensed as an occupational therapist by the Board of Medical Examiners, Occupational Therapy Council, Respondent. By Order dated August 16, 1989, the Occupational Therapy Council denied her request. The Board of Medical Examiners has delegated the authority to certify applicants for examination to the Occupational Therapy Council. The rulemaking authority for the policy and procedures concerning occupational therapy rests with the Board of Medical Examiners after review and recommendation by the Council.

   
   

2. On March 23, 1980, Ms. Mujica received an Associate in Science degree from Fiorello H. LaGuardia Community College of the City University of New York, and on June 20, 1980, the University of the State of New York certified Ms. Mujica as an occupational therapy assistant.

   
   

3. while at LaGuardia, Ms. Mujica successfully completed eight months of internship work, three months in pediatrics, three months in fixed disc and two months in psychology. During the internships, Ms. Mujica worked with actual patients and was supervised and evaluated. The internships constitute successful completion of eight months of supervised fieldwork experience.

   
   

4. On July 19, 1980 the American Occupational Therapy Association enrolled Ms. Mujica as a certified occupational therapy assistant. Ms. Mujica was licensed by the State of New York as an occupational therapy assistant on June 20, 1980, and, subsequently, has maintained that license in good standing.

   
   

5. In 1980, Ms. Mujica moved to Florida. On November 3, 1980, she was employed as an occupational therapy assistant by South Miami Hospital. Since her employment in 1980, Ms. Mujica has worked consistently as an occupational therapy assistant, except for two maternity leaves of three months each.

6. On June 20, 1982, Ms. Mujica was licensed by the State of Florida Board of Medical Examiners as an occupational therapy assistant and currently maintains that license in good standing.

   
   

7. An occupational therapist is trained and licensed to perform independently certain functions which an occupational therapist assistant is not so trained or licensed to execute. Some of those functions include examination and assessment of patients. After assessing the patient, the occupational therapist develops a plan or prescription of treatment for the patient, and the occupational therapy assistant implements the plan. However, an occupational therapist assistant is trained about the plans and, under the supervision of an occupational therapist, does implement them, observing the patient and making suggestions during the course of treatment. Currently, the trend is toward more independent activity by an occupational therapist assistant. In other words, rather than providing direct supervision, an occupational therapist operates as a consultant, leaving the occupational therapy assistant to implement the treatment plan. In fact, Ms. Mujica has worked the majority of her career under the later scheme.

   
   

8. During the winter of 1989, the staff of the Council reviewed Ms. Mujica's application for licensure as an occupational therapist and made the determination that Ms. Mujica was qualified to sit for the examination for licensure as an occupational therapist. Under the authority delegated to the staff by the Council, the Executive Director of the Council issued a temporary license to practice as an occupational therapist under the supervision of a licensed occupational therapist on March 23, 1989. Ms. Mujica worked as an occupational therapist until she was notified that the Council had rejected her request for certification to sit for the examination.

   
   

9. According to the Executive Director, the Council met on June 14, 1989 and voted to deny her request for licensure. By letter dated June 22, 1989, the Executive Director informed the American Occupational Therapy Certification Board, which administers the examination, of the Council's decision.

   
   

10. By letter dated July 11, 1989, the American Occupational Therapy Certification Board, Inc. informed Ms. Mujica that the Council had rejected her request to sit for the examination. This letter was received by Ms. Mujica too late. In good faith, she took the examination on a Saturday in July, 1989. The following Tuesday she received the letter. She was unsuccessful on the examination. On August 16, 1989, the Executive Director informed Ms. Mujica of the Council's decision of June 14, 1989 and revoked her temporary license. The Order issued on the same date states, in pertinent part,

    
    

    The Occupational Therapy Council reviewed and considered your application for licensure on June 14, 1989, in Tallahassee, Florida, and has determined that said application be DENIED, stating as grounds therefore;

    The six months supervised fieldwork experience that you completed was in an occupational therapy assistant program, not in a program approved and authorized to give occupational therapist training. See 468.209(1)(c), Florida Statutes.

    The application, however, was filed-under section 468.209(2), Florida Statutes.

    
    

11. The dispute here does not center on Ms. Mujica's failure to pass the examination, but, instead, on the Council's decision that Ms. Mujica does not possess the requisite supervised fieldwork experience. Under existent law, Ms. Mujica's supervised fieldwork experience does meet the requirements of supervised fieldwork experience for the purposes of the law under which her application was filed.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

13. Unless first licensed by the Board of Medical Examiners under the provisions of the Occupational Therapy Practice Act, part III, chapter 468, Florida Statutes, no person shall practice occupational therapy or hold himself out as an occupational therapist or an occupational therapy assistant. Section 468.207, Florida Statutes.

    
    

14. The Board of Medical Examiners (Board) has the authority to delegate such powers and duties to the Occupational Therapist Council (Council) 1/ as the Board may deem necessary including the examination of applicants and implementation of the provisions of the Occupational Therapy Practice Act. Section 468.205, Florida Statutes. The Board has delegated to the Council the certification of applicants for examination and the issuance of temporary licenses to applicants for certification. Rule 21M-12.003, Florida Administrative Code. Rule 21M-12.003 also sets out the procedure for rulemaking proposals concerning the practice of occupational therapy. The rules are adopted by the Board after first being presented to the Council. The Council, after consideration, recommends appropriate action on a proposed rule to the Board. Id.

    
    

15. Section 468.209, Florida Statutes, establishes the requirements for licensure as an occupational therapist or as an occupational therapist assistant. While certain exceptions and procedures relating to licensure are found in the remaining subsections of section 468.209, subsection (1) of section

468.209 provides the ultimate criteria which include a demonstration of the following:

1. Good moral character.

2. Successful completion of recognized academic requirements.

3. Successful completion of a period of recognized or approved supervised fieldwork experience.

4. Passage of a recognized or approved examination.

Subsection (2) of section 468.209, on the other hand, provides an alternative to licensure as an occupational therapist under subsection (1). Subsection (2) authorizes certain experienced occupational therapy assistants to waive the educational requirements for licensure as an occupational therapists found in subsection (1). The waiver provisions are met by the subsection (2) applicant's demonstration of a certain amount of experience and of the completion of a certain period of supervised fieldwork experience. It is subsection (2) under

which Petitioner has filed the subject application and which is at issue here. Subsection (2) of section 468.209 reads as follows:

(2) An applicant who has practiced as a state-licensed or American Occupational Therapy Association-

certified occupational therapy assistant for 4 years and who has completed a minimum of 6 months of supervised fieldwork experience may take the examination to be licensed as an occupational therapist without meeting the educational requirements for occupational therapists made otherwise applicable under paragraph (1)(b). (emphasis supplied). 2/

1. The burden is on the Petitioner to establish that she meets the requirements for the entitlement which she seeks. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). Here, Respondent denied Petitioner's request to sit for the examination for licensure as an occupational therapist because her supervised fieldwork experience was obtained while she was enrolled in the occupational therapy assistant program and not in a program approved and authorized to give training as an occupational therapist. Petitioner, however, asserted that her supervised fieldwork experience met the requirements of subsection (2) of

   section 468.209. 3/ Accordingly, the burden is on Petitioner to

   establish that she has completed the requisite supervised fieldwork experience.

   
   

2. It should be pointed out at this juncture that the parties do not dispute that Respondent successfully completed six months of supervised field work experience. The dispute centers on the meaning of supervised fieldwork experience for the purposes of subsection (2). 4/

   
   

3. A definition of supervised fieldwork experience for the purposes of the Occupation Therapy Practice Act does not appear in statute, in a rule of the Board 5/ nor was competent substantial evidence of the legislative intent supporting the meaning of supervised fieldwork experience demonstrated at the hearing. However, the phrase "supervised fieldwork experience" appears in paragraph (1)(c) of section 468.209. It is instructive to look there for further meaning of the phrase. Doctors Hospital, Inc. of Plantation v. Bowen, 811 F.2d 1448 (11th Cir. 1987). Paragraph (1)(c) sets out the supervised fieldwork experience required for the licensure under subsection (1). In pertinent part, paragraph (1)(c) provides the following:

   
   

   (c) Has successfully completed a period of supervised fieldwork experience at a recognized educational institution or a training program approved by the educational institution where [the applicant) met the academic requirements....

   
   

   Since the phrase is identical in both paragraph (1)(c) and subsection (2), and since both statutory provisions govern the qualifications for licensure as an occupational therapist, and since the procedure outlined in subsection (2) merely substitutes for the educational requirements of paragraph (1)(c) and does

   not defeat the remaining prerequisites for licensure under paragraph (1)(c), it is reasonable to assume that statutory qualifications placed on the phrase in paragraph (1)(c) would similarly apply to the phrase in paragraph (2). Thus, the supervised fieldwork experience required by subsection (2) must be supervised fieldwork experience which was either obtained at a recognized educational institution or through a training program approved by the educational institution at which the applicant met the educational requirement. Here, it is undisputed that Petitioner obtained six months of supervised fieldwork experience at Fiorella H. LaGuardia Community College. Given that Fiorella H. LaGuardia Community College was the school at which Petitioner was trained and met her educational requirements, Petitioner has completed the required supervised fieldwork experience for the purposes of subsection (2).

   
   

4. This construction is bolstered by the cogent argument proposed by Petitioner. Petitioner rightly asserted that it is reasonable to conclude that an occupational therapy assistant who has worked in the field under the supervision of an occupational therapist, 6/ may have gained, over a four year period, knowledge sufficient to making the additional training in a formal academic environment unnecessary. Also, the six month time period required to meet the supervised fieldwork experience under subsection (2) is more than the two month period required for initial licensure as an occupational therapist assistant under paragraph (1)(c). By having participated in the extended supervised fieldwork experience, the subsection (2) applicant has received more "on hands" exposure to the practice than the typical occupation therapy assistant. This additional exposure combined with the subsection (2) requirement for four years of practice makes the subsection (2) occupational therapist assistant more qualified for practice as an occupational therapist than a occupational therapist assistant without the extended exposure

   
   

5. Respondent denied Petitioner's request to take the examination based on its interpretation that the supervised fieldwork experience must be obtained in a program authorized to give occupational therapist training. This construction has no basis in law or rule, nor was it explicated at the hearing. Since no rule exists which endorses this construction, Respondent must then explicate whether the Council's interpretation is authorized as an incipient rule. See McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The proof failed to demonstrate by competent substantial evidence the reasons for the action. The existence of any such programs was

   
   

   periodic inspection of the actual treatment. ...

   
   

   not proven nor were the reasons for the Council's interpretation demonstrated. At most, competent testimony and evidence were received which indicated that the training of and the procedures authorized for an occupational therapist were different from the training of and the authorized procedures for an occupational therapy assistant. However, this proof, without more, did not explicate either interpretation by the Council.

   
   

6. At the hearing Respondent argued that the supervised fieldwork experience could be obtained in the practice of occupational therapy. This argument also has no basis in law or rule, nor was it proven at the hearing. It is recognized that great deference must be given to the construction given by an administrative agency to the law which the agency is charged with interpreting, PW Ventures, Inc. v. Nichols, 533 So.2d 281 (Fla. 1988), as the Council is charged with the licensure under Part III of Chapter 468, Florida Statutes. However, the general rule is modified by the caveat that the administrative

   construction is granted great deference unless by its action the administrative agency has rendered void a statutory provision. Palm Harbour Special Fire Control District v. Kelly, 516 So.2d (Fla. 1987).

   
   

7. Here, the administrative determination that the supervised fieldwork experience must occur in the practice of occupational therapy would be in conflict with and would render void the provisions of section 468.207 as it relates to occupational therapist assistants. Section 468.207 prohibits the practice of occupational therapy without the appropriate license. The practice of occupational therapy requires licensure separate and apart from the license required to practice as an occupational therapist assistant. To give effect to the construction proposed here would require an occupational assistant to practice occupational therapy without a license for the duration of six months while obtaining the required supervised fieldwork experience. Thus, this construction must fail.

   
   

8. Additionally Respondent asserted at the hearing, that subsection (2) was intended to implement an "upward mobility" program recognized in the occupational therapy field in the late 1970's. However, the competent substantial proof failed to demonstrate any such legislative intent. Respondent also argued that the six months of supervised fieldwork experience under subsection (2) was to occur after the applicant had attained the four years of practice. Again, the proof failed to support this construction.

   
   

9. Accordingly, Petitioner has met the requirement for supervised fieldwork experience under subsection (2) of section 468.209.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Board of Medical Examiners issue a Final Order stating that Petitioner has met the supervised fieldwork requirement pursuant to subsection 468.209(2), Florida Statutes

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March, 1990.

JANE C. HAYMAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1990.

ENDNOTES

1/ The Occupational Therapist Council is created under the supervision of the Board pursuant to section 468.205, F.S.

2/ Paragraph (1)(b) referenced in Subsection (2) or Section 468.209, F.S., states the academic requirements referred to above and is not at issue here.

3/ Both parties acknowledge that Respondent did take the licensure examination and did in fact fail the exam, making her qualification for 11-censure under the application at issue moot. Respondent moved to dismiss the case for mootness at the hearing based on that fact. However, the issue presented here, as narrowed by the original petition, is whether Petitioner met the requirement for supervised fieldwork experience within the meaning of subsection (2) of section

468.209 and that this fact may be determined prior to her filing a subsequent application.

4/ That the issue presented to the undersigned did not involve a dispute of an issue of material fact did not become apparent until the formal hearing had commenced. Although a motion to relinquish jurisdiction may have been in order, none was offered. Accordingly, the hearing proceeded, and this recommended order is issued in accordance with Section 120.57.

5/ The rules considered here were those officially recognized by the undersigned on motion by Respondent at the formal hearing.

6/ Section 468.201(6) defines and occupational therapy assistant as a person licensed to assist in the practice of occupational therapy, whose license is in good standing and "who works under the supervision of an occupational therapist,". "Supervision" is defined in subsection 468.203 (8) as

...responsible supervision and control, with the licensed occupational therapist providing both initial direction in developing a plan of treatment and

periodic inspection of the actual treatment...

COPIES FURNISHED:

David R. Berley, Esquire Berley & Littman, P.A.

1428 Brickell Avenue

Miami, Florida 33133

M. Catherine Lannon Assistant Attorney General Suite 1602 - The Capitol

Tallahassee, Florida 32399-1050

Suzanne Lee

Occupational Therapy Council Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth D. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-005298

Orders for Case No: 89-005298