STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEILA JOY SUTTLE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1880

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida on June 19, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lawrence J. Robinson, Esquire

Robinson, Robinson & Fogleman, P.A.

100 Wallace Avenue, Suite 380

P.O. Box 2720

Sarasota, Florida 34230-2720

For Respondent: Edward A. Haman, Esquire

DHRS

7827 North Dale Mabry Highway Tampa, Florida 33614

STATEMENT OF THE ISSUES

Should Petitioner be considered eligible for licensure and licensed as a clinical laboratory supervisor in the specialties sought.

PRELIMINARY STATEMENT

In November, 1989, Petitioner filed an application with the Respondent, Department of Health and Rehabilitative Services, (Department), to add the areas of clinical chemistry and immunohematology to her existing license as a clinical laboratory supervisor. By letter dated January 2, 1990, Patricia A. Johns, Ph.D., administrator of the Department's laboratory personnel licensure division, advised Petitioner that her application was being denied as she was determined to be ineligible for the licensure sought since she did not have the qualifications for the license as provided under pertinent provisions of the Florida Administrative Code. On January 31, 1990, through counsel, Petitioner filed a Petition for formal administrative hearing, and on March 23, 1990, the matter was forwarded to the Division of Administrative Hearings for appointment

of a Hearing Officer. After Initial Order and response thereto by both parties, by Notice of Hearing dated April 16, 1990, the undersigned set the case for hearing on June 19, 1990, at which time it was held as scheduled.

At the hearing, Petitioner testified in her own behalf and presented the testimony of Dr. Barbara Jean Harty-Golder, a pathologist practicing in Sarasota. Petitioner also introduced Petitioner's Exhibits 1 through 6.

Respondent presented the testimony of Nancy Chapman, assistant administrator of the Department's laboratory licensure division, and introduced Respondent's Exhibit A.

No transcript was presented, but both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the matters in issue here, Petitioner was licensed as a clinical laboratory supervisor in the State of Florida in the areas of hematology, serology and microbiology, under the provision of Chapter 483, Part I, Florida Statutes. This licensure is based upon her passing an examination in those subjects and her certification as qualified pursuant to Section 241, Public Law 92-603 by the Bureau of Quality Assurance, Public Health Service of the United States Department of Health, Education and Welfare. She is not certified in the areas in which certification is herein sought.

   
   

2. The Department is the state agency responsible for the licensure and regulation of clinical laboratory personnel, including supervisors, in Florida.

   
   

3. Petitioner has been licensed as a clinical laboratory supervisor in the disciplines set out above for approximately 12 years, the last six of which, she has spent at the laboratory at Doctor's Hospital in Sarasota, a laboratory approved by the State of Florida.

   
   

4. In November, 1989, she applied for supplemental licensure as a clinical laboratory supervisor in the fields of chemistry and immunohematology, but was denied the requested licensure because she does not have either a bachelor's degree with a major in science, or 90 semester hours study in that field at an accredited college or university.

   
   

5. Her educational and experience background are, however, impressive. Between June, 1965 and December, 1966, she was in training in the areas of hematology, serology, chemistry, microbiology and immunohematology. In January, 1967, she went to work in a doctor's office and set up his laboratory in which she worked in hematology testing, chemistry and urinalysis. In September, 1967, she went back to a hospital as a technologist in all phases of laboratory work. In July, 1973, she moved to Sarasota and went to work in the laboratory at Doctors Hospital, working with all five subspecialties. She held the job of technician and supervisor in all fields in which she was licensed. Petitioner asserts, and the Department agrees, that she was licensed in Florida as a supervisor in hematology in 1978, and in the areas of microbiology and serology in 1979.

   
   

6. In April, 1980, Petitioner went to work for several doctors in Bradenton as a laboratory technician/technologist, remaining there through December, 1980, when she went back to Doctors Hospital, again working in all five specialty areas, and remained there as a technologist and supervisor in those areas in which she was licensed, until October, 1989. Since that time,

   she has worked in a Sarasota oncology laboratory, in hematology and clinical chemistry. She does no on-site chemical testing, however, since all is sent out.

   
   

7. Through cross examination of the Petitioner, Respondent established that in 19878, and again in 1979, Petitioner took and failed to pass the Florida examination for supervisor in clinical chemistry and hematology. In the instant case, however, her protest is not about the grade she received on those examinations, but of the refusal to grant her licensure without examination on the basis of her experience.

   
   

8. Petitioner is well thought of by the physician's for whom she works. Dr. Barbara J. Harty-Golder, a pathologist and her current supervisor, has known her since 1983 and has indirectly supervised her work since that time. She feels that Petitioner's performance in laboratory technology in the areas in which she seeks certification, is quite good. She has rarely worked with anyone as proficient and competent. Petitioner has exceptionally good people skills. She keeps up with current advances, and based on the witness' experience, which comes from supervision of several laboratories, she feels the Petitioner is fully qualified to be a supervisor in the areas in which she seeks certification.

   
   

9. In late November, 1989, after Petitioner had submitted her request for licensure without examination, Ms. Nancy Chapman, assistant administrator of the Department's laboratory licensure division, and the individual responsible for evaluating Petitioner's application, wrote to her requesting information which was not on file in the Department's records. This information related to Petitioner's holding a bachelor's degree with a major in science. Petitioner did not respond to that request, and Petitioner stipulates that she does not possess the technical formal education specified in the Department's rules.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. Section 483.051, Florida Statutes, is the enabling legislation authorizing the Department to adopt rules for the qualification of clinical laboratory personnel in Florida. Under the terms of the statute, the Department's rules, "may require appropriate education, training, or experience, or the passing of an examination in appropriate subjects or any combination of these."

    
    

12. Along with this enabling legislation, Section 483.161 requires the Respondent to "prescribe minimal qualifications for clinical laboratory personnel."

13. Consistent with this enabling legislation, the Department has promulgated Chapter 10D-41, Florida Administrative Code, as its rules governing clinical laboratory and laboratory personnel in this state. This rules states, in pari materia:

    
    

    10D-41.068 Laboratory personnel- qualifications-supervisor.

    A supervisor shall meet one of the following requirements:

    (3) ... Is qualified as a clinical laboratory technologist pursuant to the provisions of Rule 10D-41.069(1), (2), or (3).

    10D-41.069 Laboratory Personnel - Qualifications - Technologist.

    A technologist 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 one year of pertinent laboratory experience at the technician level covering the specialties in which the candidate seeks licensure ..."

    
    

14. Petitioner claims that by accepting and recognizing her certification by the federal government previously, the Department is now estopped from rejecting that certification for the purpose of the additional licensure sought. This argument is without merit.

    
    

15. It is without question that Petitioner is a highly qualified and experienced laboratory technologist and an excellent supervisor in those area to which her current certification and licensure relates. It is also most probable that based on her extended experience, she could serve creditably and effectively as a supervisor in those additional areas in which she now seeks licensure. However, the Department has chosen to implement its own licensure rules which, upon application to this Petitioner, bar her from licensure with the academic credentials she holds.

16. Petitioner does not meet any of the requirements for licensure as a supervisor as set out in rule 10D-41.068. She holds neither the doctorate nor the master's degree called for in subsections (1) or (2). Though she has 6 years experience in an approved laboratory, she holds neither the acceptable bachelor's degree nor the appropriate 90 semester hours of college work which are outlined in 10D-41.069 (1), (2), and (3).

    
    

17. Review of the rule in question indicates it was promulgated in June, 1985. It is a different rule than was in effect at the time Petitioner was previously certified and licensed. That previous licensure does not estop the Department from now applying the terms and requirements which are in existence at the time Petitioner applies for additional licensure. Clearly, Petitioner does not now meet the regulatory requirements for licensure as a laboratory supervisor in the areas sought.

RECOMMENDATION

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

RECOMMENDED that the Secretary enter a Final Order denying Petitioner's application to add the specialty areas of clinical chemistry and immunohematology to her clinical laboratory supervisor's license.

RECOMMENDED this 25th day of July, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1880

The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. Accepted and incorporated herein.

2. Accepted that Petitioner is a duly certified laboratory technologist, but not proven as to the subject matters in which so certified.

3. & 4. Accepted and incorporated herein.

5. Accepted and incorporated herein.

FOR THE RESPONDENT:

1. & 2. Accepted and incorporated herein.

COPIES FURNISHED:

Edward A. Haman, Esquire DHRS

7827 North Dale Mabry Highway Tampa, Florida 33614

Lawrence J. Robinson, Esquire Robinson, Robinson & Fogleman, P.A.

P.O. Box 2720

Sarasota, Florida 34230-2720

John Miller General Counsel DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power Agency Clerk DHRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 90-001880

Orders for Case No: 90-001880