STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZENIA FLORES DE APODACA, )

)

Petitioner, )

)

vs. ) Case No. 00-1184

) DEPARTMENT OF HEALTH, BOARD OF ) CLINICAL LABORATORY PERSONNEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on October 5, 2000, in Miami, Florida.

APPEARANCES

For Petitioner: Zenia Flores de Apodaca, pro se

1698 West 65th Street Hialeah, Florida 33012

For Respondent: Mary S. Miller, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to licensure as a clinical laboratory technologist in microbiology.

PRELIMINARY STATEMENT

Respondent Board of Clinical Laboratory Personnel filed its Notice of Intent to Deny the Petitioner's application for

licensure as a medical technologist in microbiology on August 30, 1999. Petitioner filed her hearing request challenging the Board's decision on September 13, 1999,

requesting an informal hearing. At its January 2000 meeting the Board determined that Petitioner was asserting a factual dispute and that her request should, therefore, be referred to the Division of Administrative Hearings to conduct an evidentiary proceeding. On March 20, 2000, this case was referred to the Division of Administrative Hearings.

Petitioner testified on her own behalf and presented the testimony of Biarda Villaverde and Caridad Gonzalez. The Board presented the testimony of Andrea Gereg. Additionally, Joint Exhibit numbered 1 and the Board's Exhibits numbered 1 and 2 were admitted in evidence.

Only the Board submitted a proposed recommended order.

That document has been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Applications for licensure as a medical technologist in microbiology are available from the Board's office. With the application, the Board staff sends directions for completing the application form, a copy of the relevant statutes and Board rules, the names and addresses of accredited and Board-approved medical technology training programs, and other materials.

2. Petitioner's application for licensure as a medical technologist is dated January 20, 1999. She submitted that application and all required fees for licensure to the Board.

3. Petitioner received her degree as a doctor of medicine from the Higher Institute of Medical Sciences in Havana, Cuba. That degree satisfies the educational requirements for licensure as a medical technologist in the State of Florida.

4. In addition to minimum educational requirements, licensure as a technologist requires certain minimum experience working in a clinical laboratory performing a wide array of tests or completion of a technologist-level accredited or Board- approved medical technology training program. This requirement is clearly set forth in the materials the Board forwarded to Petitioner as part of her application package.

5. The training program Petitioner completed in Cuba is not on the list of the Board's approved or accredited medical technology training programs. Petitioner acknowledges that she has not enrolled in, or completed, a technologist-level accredited or Board-approved technology training program. Therefore, in order to take the licensure examination and qualify for licensure Petitioner must have completed three years of full-time employment in a clinical laboratory performing a wide array of tests.

6. None of Petitioner's work experience has been in the United States. With her application, Petitioner did not submit any employment verification forms from her employers. Instead, Petitioner submitted affidavits from people who knew her in Cuba and in Nicaragua. These affidavits conflict with each other, with Petitioner's resumé she submitted to the Board along with her application, and with Petitioner's testimony at the final hearing.

7. On her application, Petitioner represented under oath that she was employed from June 1994 to July 1996 at the Institute of Tropical Medicine Pedro Kouri in Havana, from August 1996 to July 1997 at the Julio Trigo General Hospital in Havana, and from October 1997 to July 1998 at the National Center of Diagnostic and References in Managua, Nicaragua. She represented that she performed a wide variety of testing at each of these institutions, processing patient samples.

8. However, on her resumé, which she submitted to the Board along with her application, Petitioner represents that at these three institutions, she was employed as a laboratory supervisor, charged with assessing laboratory personnel, and as a researcher. Her resumé also lists extensively the research studies she performed and her teaching experience.

9. In support of her testimony at the final hearing that she possesses the required three years of pertinent clinical

   experience performing the required testing, Petitioner presented the testimony of Caridad Gonzalez and Biarda Villaverde.

10. Ms. Gonzalez is a licensed medical technologist currently employed in the State of Florida. She testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from 1994 through 1996 and at the Julio Trigo General Hospital from 1996 through 1998. These dates conflict with those set forth in two affidavits Gonzalez provided to the Board as part of Petitioner's application for licensure. Further, in her own sworn application for licensure filed with the Board, Gonzalez never mentioned having been employed at the Institute of Tropical Medicine Pedro Kouri. Additionally, Gonzalez left Cuba and came to the United States in April 1997 and was not, therefore, employed in Cuba with Petitioner through 1998. Her testimony at final hearing, therefore, lacks credibility.

11. Biarda Villaverde testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from June 1994 to June 1995 in a clinical setting. However, Villaverde and Petitioner worked in different laboratories at that institution. Villaverde, therefore, cannot support Petitioner's testimony as to the work performed by Petitioner since she did not work in the same laboratory. Further, the facility was a diagnostic, research, and teaching facility,

    where some tests were performed on animals, depending upon the type of research conducted. Villaverde testified that Petitioner was assigned to the research division at this facility.

12. Research does not qualify for the work experience required for licensure as a medical technologist. Even if some of Petitioner's research experience could be counted toward the required clinical experience, Petitioner both admitted and denied at the final hearing that she performed research, primarily representing that she worked full-time performing the required array of testing on patient samples.

13. Several of the accredited or Board-approved technologist training programs are located in South Florida, where Petitioner resides. A training program takes one to two years to complete, depending upon the program. Although Petitioner expressed her unhappiness with the length of time her application for licensure has been pending, she could have completed a program, thus obtaining the minimum required experience for licensure, had she chosen to do so upon learning the minimum requirements for licensure.

14. Petitioner's argument that she should be given credit for her work in the laboratories in Cuba and Nicaragua since they complied with World Health Organization quality control standards is without merit. The World Health Organization does

    not regulate or set quality control standards for clinical laboratories. The World Health Organization only gathers statistical data and publishes studies.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

16. Section 483.823, Florida Statutes, authorizes the Board to prescribe minimal qualifications for clinical laboratory personnel, including education, training, and experience. The Board's Rule 64B3-5.003(1), Florida Administrative Code, sets forth the minimum qualifications for licensure as a technologist. The law is well settled that Petitioner has the burden of proof in establishing entitlement to licensure. Petitioner has failed to meet her burden of proof in this proceeding.

17. Although Petitioner meets the educational requirements for licensure, she has failed to demonstrate that she has the required experience in order to be qualified to take the licensure examination. Since she admittedly has not completed an accredited or Board-approving training program, she can only qualify for licensure, and for taking the licensure examination, by proving that she has a minimum of three years of pertinent clinical experience. Due to the conflicts in Petitioner's

    representations to the Board in her resumé, her application, and her testimony at final hearing, and due to the conflicting and insufficient affidavits she submitted to the Board, and due to the lack of competent, credible testimony of her witnesses at final hearing, Petitioner has failed to prove any amount of required experience.

18. Although Rule 64B3-2.003(8), Florida Administrative Code, allows the Board to consider research experience as pertinent clinical laboratory experience, such can be done only if the research experience involved human subjects and used methodologies, quality control, and quality assurance techniques comparable to those of clinical laboratories. Petitioner offered no competent evidence that any research she did utilized methodologies, quality control, or quality assurance techniques comparable to those of clinical laboratories.

RECOMMENDATION

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

RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a clinical laboratory technologist in microbiology.

DONE AND ENTERED this 4thday of December, 2000, in

Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 4th day of December, 2000.

COPIES FURNISHED:

Zenia Flores de Apodaca 1698 West 65th Street Hialeah, Florida 33012

Mary S. Miller, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Joe Baker, Jr., Executive Director Board of Clinical Laboratory Personnel Department of Health

4052 Bald Cypress Way Bin A07

Tallahassee, Florida 32399-3257

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way A02

Tallahassee, Florida 32399-1701

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: 00-001184

Orders for Case No: 00-001184