STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES BAROCAS, )

)

Petitioner, )

)

vs. ) Case No. 98-5241

) DEPARTMENT OF HEALTH, BOARD OF ) ORTHOTISTS AND PROSTHETISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 23, 1999, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Barocas, pro se

Post Office Box 7440 Seminole, Florida 33775

For Respondent: Lee Gustafson, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, Charles Barocas, should be licensed as an orthotist in Florida without examination.

PRELIMINARY STATEMENT

The Respondent, the Department of Health, Board of Orthotists and Prosthetists (the Board), denied the Petitioner's

application for licensure as an orthotist without examination on August 31, 1998. The Petitioner asked for a formal administrative proceeding, and the matter was referred to the Division of Administrative Hearings (DOAH) on December 1, 1998. Final hearing was scheduled for February 23, 1999.

At final hearing, the Petitioner testified and had Petitioner's Exhibits 1 through 6, 8 through 9, and 13 admitted in evidence. The Board's objection to Petitioner's Exhibit 7 was sustained, and ruling was reserved on the Board's objections to Petitioner's Exhibits 10 through 12. It is now ruled that the objections to Petitioner's Exhibits 10 and 11 are overruled, and those exhibits are admitted in evidence; the objection to Petitioner's Exhibit 12 is sustained. The Board called one witness, who ultimately testified in support of licensure.

The Board ordered a transcript of the final hearing, and the parties were given ten days from the filing of the transcript to file proposed recommended orders. The Transcript was filed on March 11, 1999. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The Petitioner, Charles Barocas, applied for licensure as an orthotist in Florida without examination before March 1, 1998.

2. Barocas has many years of experience as an orthotist in New York. He became involved in the field after receiving

   medical training in the Army during the war in Vietnam and developing an interest in acute care. When he returned to the United States, Barocas obtained additional health care training and began working with orthopedic surgeons in New York. His work included primarily direct patient care, taking X-rays, casting, and fracture bracing.

3. In about 1975, Barocas started a three-year program of study to become an orthotist in New York. The program, which was offered through the New York Board of Certified Orthotists and Prosthetists, included a great deal of clinical experience. Barocas completed the program in 1979 and became a New York certified orthotist in 1980. Because he valued and enjoyed working with patients through the continuum of care, Barocas continued to work with orthopedic surgeons, taking X-rays, casting, removing casts, fitting and, in some cases, fabricating braces or making molds for central fabricating shops, adjusting braces, and following-up until the end of patient treatment. Barocas' work with the patients was under general prescriptions or orders of the orthopedic surgeon; however, the physicians gave him discretion in evaluating, treatment formulating, measuring, designing, fabricating, assembling, fitting, adjusting, servicing, and providing initial training.

4. Barocas moved to Florida and continued his work with South Palm Orthopedics in Palm Beach County from September 1991 through April 1993. As in New York, Barocas worked with an

   orthopedic surgeon at South Palm Orthopedics, namely David Buchalter, M.D. The nature of Barocas' work with Dr. Buchalter was the same as his work with orthopedic surgeons in New York.

5. In June 1992, Barocas began also working for Florida Bracing Center in Fort Lauderdale. Florida Bracing Center had a contract with area health maintenance organizations (HMOs) to do the kind of work Barocas was doing for Dr. Buchalter. To perform under its agreement with the HMOs, Florida Bracing Center contracted with Barocas and assigned him patients primarily in Palm Beach County. In this work, Barocas would receive a physician's prescription or order and go to see the patient. There, Barocas would evaluate the patient; formulate treatment; measure, design, and either fabricate an orthotic device or make a mold for central fabrication; assemble the device, if necessary; fit, adjust, and service the device; and provide initial training and follow-up adjustments and training, as necessary. Barocas continued to work for Florida Bracing Center until August 1993.

6. In September 1993, Barocas began working for Baysports Orthopedic Center in St. Petersburg, Florida, under Jeffrey L. Tedder, M.D. The nature of Barocas' work with Dr. Tedder was the same as his work with Dr. Buchalter and with the New York orthopedic surgeons. Barocas continued in his employment at Baysports Orthopedic Center through June 1997.

7. In June 1997, Barocas decided not to continue to endure the physical rigors of his brand of practice (which included lifting patients) full-time and initiated efforts to begin a school for the education and training of orthotists and related health care professionals which Barocas named the Institute for Orthopedic Technology. (Barocas continued to accept a limited number of referrals from an area orthopedic surgeon for fracture bracing.)

8. Barocas was about to teach a course in "Orthopedic Technology and Casting" at the St. Petersburg Junior College when he learned about the new Florida Board of Orthotists and Prosthetists. He presented his course to the Board for approval. When approval was not forthcoming, Barocas cancelled the class at St. Petersburg Junior College.

9. While Barocas has been unable to obtain course approval from the Florida Board of Orthotists and Prosthetists, he has developed correspondence/Internet courses in the field that are being utilized by seven national organizations of related health care professionals for continuing education. In addition, Barocas has courses designed to educate and train sales representatives and customers of manufacturers of casts and braces. Last year, Barocas had approximately 500 correspondence students; he expects approximately 600 correspondence students in 1999.

10. The Board's own expert witness conceded that Barocas has at least five years of practice experience as an orthotist in Florida, as defined under Section 468.80(7), Florida Statutes (1997). The witness was of the opinion, however, that some of Barocas' experience in his chosen brand of practice (namely, taking X-rays and casting) was not experience as an orthotist, as defined by the statute. He also pointed out that Barocas did not have much if any experience in the business of operating a shop where orthotic devices are fabricated. Barocas countered that he did have experience making braces in the presence of the patient out of low temperature plastics and out of fiberglass and rivets and in making the molds used by central fabrication shops. In addition, Barocas pointed out that, by not operating a fabrication shop, little if any of his time has been spent in the business of contracting with insurance companies and HMOs and other third party payers, preparing the paperwork they require, and obtaining payment from them; instead, his time was spent on direct patient care. Finally, Barocas contends that casting is part of the practice of orthotics as defined by the statute.

    CONCLUSIONS OF LAW

    
    

11. Section 468.805(1), Florida Statutes (1997), provides for licensure as an orthotist in Florida, without examination, for orthotists who have five years of practice experience in Florida, as defined under Section 468.80(7), provided that application was made before March 1, 1998.

12. Section 468.80(7), Florida Statutes (1997), defines "orthotics" as follows:

    "Orthotics" means the practice, pursuant to a licensed physician's written prescription, of evaluating, treatment formulating, measuring, designing, fabricating, assembling, fitting, adjusting, servicing, or providing the initial training necessary to accomplish the fitting of an orthosis or pedorthic device; however, the repair, replacement, adjustment, or servicing of any existing orthosis may be performed without an additional prescription from the patient's physician, unless the original prescription states otherwise. If a patient is under the care of a licensed occupational therapist or physical therapist, the orthotist must consult with the therapist if the therapist has requested consultation regarding the fitting, design, or fabrication of an orthosis or regarding treatment with an orthosis.

13. Section 468.80(4), Florida Statutes (1997), defines "orthosis" as follows:

    "Orthosis" means a medical device used to provide support, correction, or alleviation of neuromuscular or musculoskeletal dysfunction, disease, injury, or deformity, but does not include the following assistive technology devices: upper extremity adaptive equipment used to facilitate the activities of daily living, including specialized utensils, combs, and brushes; finger splints; wheelchair seating and equipment that is an integral part of the wheelchair and not worn by the patient; elastic abdominal supports that do not have metal or plastic reinforcing stays; arch supports; nontherapeutic accommodative inlays and nontherapeutic accommodative footwear, regardless of method of manufacture; unmodified, over-the-counter shoes; prefabricated foot care products; durable medical equipment such as canes, crutches, or walkers; dental appliances; or devices implanted into the body by a physician. For

    purposes of this subsection, "accommodative" means designed with the primary goal of conforming to the individual's anatomy and "inlay" means any removable material upon which the foot directly rests inside the shoe and which may be an integral design component of the shoe.

    
    

14. It is clear from the evidence that Barocas has at least five years of Florida practice experience as an orthotist, as defined under Section 468.80(7), Florida Statutes (1997). It is not necessary to reach the question whether casting is part of the practice of orthotics as defined by the statute.

RECOMMENDATION

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

RECOMMENDED that the Board of Orthotists and Prosthetists enter a final order granting the application of the Petitioner, Charles Barocas, for licensure as an orthotist without examination.

DONE AND ENTERED this 19th day of April, 1999, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1999.

COPIES FURNISHED:

Charles Barocas

Post Office Box 7440 Seminole, Florida 33775

Lee Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-005241

Orders for Case No: 98-005241