STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALINA DE ARMAS, )

)

Petitioner, )

)

vs. ) Case No. 99-1428

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case by video on February 29, 2000, at sites in Miami and Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David R. Slanton, Esquire

21 Southeast First Avenue, Suite 820 Miami, Florida 33131

For Respondent: Mary S. Miller, Esquire

Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to licensure as an orthotic fitter.

PRELIMINARY STATEMENT

On July 21, 1998, Petitioner filed an Application for Licensure with Respondent seeking to be licensed as an orthotic fitter. On January 7, 1999, Respondent filed a notice that it intended to deny her application. Petitioner thereafter timely challenged the proposed action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. This matter was scheduled for final hearing on

June 11, 1999. On May 3, 1999, Respondent moved to abate the proceeding based on an amendment to the licensing law by the 1999 Florida Legislature. It was the belief of the parties at that time that the amendment would render this proceeding moot. By Order of Abeyance entered May 5, 1999, the proceeding was placed in abeyance until July 1, 1999. Subsequently, it was determined that the amendment did not render the proceeding moot. Consequently, the matter was rescheduled for final hearing to be conducted August 27, 1999, in Miami, Florida.

Petitioner did not appear at the formal hearing. When contacted by telephone by Respondent's counsel at the request of the undersigned, Petitioner represented that she was too ill to appear. Thereafter, the final hearing was rescheduled for final hearing by video. All motions were resolved either by order of the undersigned or by agreement of the parties prior to the beginning of the final hearing.

At the final hearing, Petitioner testified on her own behalf and presented the additional testimony of Raquel Fumero and Joe R. Baker, Jr. Ms. Fumero was employed by Petitioner's company at times pertinent to this proceeding. Mr. Baker is the Executive Director of the Respondent Board. The parties introduced one joint exhibit, which was accepted into evidence. In addition, Petitioner presented five exhibits, each of which was admitted into evidence. Respondent called Mr. Baker as its only witness. Respondent offered no exhibits other than the one joint exhibit. Official recognition was taken of all relevant statutes and rules.

A Transcript of the proceedings was filed on March 17, 2000. Petitioner and Respondent filed proposed recommended orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Chapter 468, Florida Statutes, regulates miscellaneous professions and occupations in Florida. Chapter 97-284, Laws of Florida, created Sections 468.80-468.813, Florida Statutes. These provisions, referred to as Part XIV of Chapter 468, regulate the practice of orthotics, prosthetics, and pedorthics. Respondent is the agency of the State of Florida responsible for administering the provisions of Chapter 468, Florida Statutes.

2. Section 468.80(5), Florida Statutes, provides the following definition pertinent to this proceeding:

   (5) "Orthotic fitter" means a person who is licensed to practice orthotics, pursuant to a licensed physician's written prescription, whose scope of practice is limited to fitting prefabricated cervical orthosis 1/ not requiring more than minor modification; pressure gradient hose; trusses; custom-molded therapeutic footwear; prefabricated spinal orthoses, except for those used in the treatment of scoliosis, rigid body jackets made of thermoformable materials, and "halo" devices; and prefabricated orthoses of the upper and lower extremities, except for those used in the treatment of bone fractures.

   
   

3. Section 468.803, Florida Statutes, sets forth certain criteria for licensure as an orthotic fitter. The parties to this proceeding stipulated that Petitioner has met all criteria for licensure as an orthotic fitter except the criteria found at Section 468.803(3)(c)3., Florida Statutes, which requires two years of experience in orthotics, as approved by the board.

4. Section 468.805, Florida Statutes, is the following grandfathering provision:

   1. A person who has practiced orthotics in this state for the required period since July 1, 1990, who, before March 1, 1998, applies to the department for a license to practice orthotics may be licensed as a orthotic fitter, as determined

      from the person's experience, certification, and educational preparation, without meeting the educational requirements set forth in s. 468.803, upon receipt of the application fee and licensing fee and after the board has

      completed an investigation into the applicant's background and experience. The board shall require an application fee not to exceed $500, which shall be nonrefundable. The board shall complete its investigation within 6 months after receipt of the completed application. The period of experience required for licensure under this section is 2 years for an orthotic fitter.

      
      

5. On July 21, 1998, Petitioner filed an application for licensure as an orthotic fitter. The application, on a form adopted by Respondent as a rule, required the applicant to state whether the applicant was seeking licensure based on examination (pursuant to Section 468.803, Florida Statutes) or pursuant to Section 468.805, Florida Statutes. Since the deadline for filing pursuant to the grandfathering provision expired March 1, 1998, Petitioner marked the application to reflect that the licensure was to be based on examination, the only option available to her at that time.

6. Along with the application form, Respondent sends to applicants for licensure copies of the relevant statutes and rules with instructions that an applicant should read those statutes and rules prior to completing the application. Petitioner admitted that she had received those statutes and rules and that she had read them before completing her application for licensure.

7. Chapter 99-158, Laws of Florida, became effective on May 13, 1999, and provides as follows:

   Any person who met the period of experience requirement set forth in section 468.805(1), Florida Statutes, prior to March 1, 1998, may apply for licensure pursuant to section 468.805(1), Florida Statutes, prior to July 1, 1999.

   
   

8. This provision was the basis for the Order of Abeyance entered May 5, 1999, which placed the proceeding in abeyance until July 1, 1999. Petitioner did not apply for licensure pursuant to the provisions of Section 468.805(1), Florida Statutes, after the enactment of Chapter 99-158, Laws of Florida, nor did she request that her pending application be amended to reflect that she was seeking licensure pursuant to the grandfathering provision. 2/ At the final hearing, Petitioner, through counsel, asserted that her application should be considered to be pursuant to either examination or to the grandfathering provision.

9. Under the grandfathering provision, an applicant must demonstrate that he or she had practiced orthotics in the State of Florida for two years between July 1, 1990, and March 1, 1998.

10. At all times pertinent to this proceeding, Petitioner has been the owner and operator of Ultra Tech Medical Supply and Equipment, Inc., a company she founded in 1991.

11. Ultra Tech's primary business is the selling and renting of durable medical equipment such as wheelchairs, canes,

    and crutches to patients and to physicians. As will be discussed in more detail below, Ultra Tech occasionally sells orthotic devices. On those occasions, Petitioner has served as the fitter for those devices.

12. Ultra Tech has never had a licensed or certified orthotist or medical doctor on its staff. Petitioner has never worked under the direct supervision of a certified orthotist or medical doctor. At the times pertinent to this proceeding, Petitioner never worked under anyone else's supervision. She has never served as an orthotic fitter assistant. 3/

13. Petitioner's exhibits include numerous invoices, some of which represent orthotic devices she purchased and subsequently fitted between November 1994 and January 2000.

    Some of the invoices in the composite exhibits are duplicates while others are for purchases of supplies or equipment that are not orthotic devices. The invoices for orthotic devices established that fitting orthotic devices was a very minor part of Petitioner's work week in that she fitted an average of less than two orthotic devices per week. The testimony established that Petitioner spent much less than thirty hours per week fitting orthotic devices.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

15. Petitioner has the burden of establishing by a preponderance of the evidence that she is entitled to the licensure she seeks. Florida Department of Transportation v. JWC Company, Inc. (Fla. 1st DCA 1981).

16. Respondent has the authority to adopt rules to implement the provisions of Chapter 468, Florida Statutes. See Section 468.802, Florida Statutes.

17. Section 468.803(3)(c)3., Florida Statutes, requires an applicant for licensure as an orthotic fitter to have two years of experience in orthotics, as approved by Respondent.

18. Respondent has adopted Rule 64B14-4.003, Florida Administrative Code, to implement Section 468.803, Florida Statutes. That rule provides, in pertinent part, as follows:

    1. In order to establish eligibility for licensure as an orthotic fitter under section 468.803(3)(c), F.S., the applicant must provide:

       
       

       * * *

       
       

       (c) Verification of Employment Form(s) demonstrating two years of experience as an orthotic fitter assistant signed by the applicant's qualified supervisor(s).

19. Petitioner has not and cannot satisfy that requirement. She has never worked as an orthotic fitter assistant and she had not, at the times pertinent to this proceeding, worked under anyone's supervision.

20. Petitioner did not apply for licensure under the grandfathering provision. Even if her application is evaluated pursuant to the grandfathering provision, the application should be denied because she failed to establish that she has two years experience in the practice of orthotics.

21. Rule 64B14-3.001, Florida Administrative Code, contains the following definition pertinent to this proceeding:

    1. Actively practicing - working in the field of orthotics/prosthetics at least

       30 hours per week.

       
       

       * * *

       
       

       (22) One year of work experience - 1900 hours of work in the field of orthotics

       . . . completed in no less than 10 months.

       
       

22. While it was established that on the average she fitted one or two orthotic devices a week since 1994, that evidence is insufficient to establish that she had two years of experience in the practice of orthotics as required by the grandfathering provision.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order

denying Petitioner's application for licensure as an orthotic fitter.

DONE AND ENTERED this 19th day of April, 2000, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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, 2000.

ENDNOTES

1/ Section 468.80(4), Florida Statutes, defines the term orthosis as follows:

1. "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.

2/ Petitioner was not represented by counsel prior to July 1, 1999.

3/ The term orthotic fitter assistant is defined by Section 468.80(6), Florida Statutes.

COPIES FURNISHED:

Mary S. Miller, Esquire

Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

David R. Slanton, Esquire Suite 820

21 Southeast First Avenue Miami, Florida 33131

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

William Large, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Joe Baker, Executive Director

Board of Orthotists and Prosthetists Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0750

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: 99-001428

Orders for Case No: 99-001428