STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS A. RYAN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-218

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a hearing in this case on April 23, 1981, in Melbourne, Florida. The transcript was certified by the reporter on May 7, 1981, but was not filed with this Division until June 4, 1981.

APPEARANCES

For Petitioner: Kenneth C. Crooks, Esquire

Post Office Box 37 Titusville, Florida 32780

For Respondent: Samuel P. Stafford, Esquire

Assistant District Counsel Department of Health and

Rehabilitative Services District VII, Suite 912

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue allegedly presented in this case is whether the Petitioner, Dennis A. Ryan, is eligible for recertification as a paramedic.

PRELIMINARY STATEMENT

Three witnesses testified on behalf of the Petitioner, including Mr. Ryan, a representative from the Brevard Count Community College, and the Director of Emergency Medical Services in Brevard County. The Respondent presented the Operations Service Manager of the Emergency Medical Services Division of the Department of Health and Rehabilitative Services. Three exhibits were offered and received in evidence.

FINDINGS OF FACT

1. Prior to November, 1980, the Petitioner was employed as a paramedic with Brevard County Emergency Medical Services, having been certified by HRS on August 31, 1979. The Department determined, and contended at the hearing, that this certification expired on August 31, 1980, and that a certificate holder has a 60 day grace period within which to renew a certificate after its expiration date. This grace period expired on October 30, 1980. HRS received the Petitioner's application for recertification together with the required fee on November 7, 1980. The recertification application and check having been received on a date which HRS contends is not within the prescribed grace period, HRS refused to recertify the Petitioner. Since November of 1980, therefore, he has worked in a clerical position with EMS of Brevard County, not as a paramedic.

   
   

2. HRS further contends that under the rules in existence up to and including the date of the hearing in this matter, a paramedic whose certification lapses by more than 60 days is not eligible for recertification, but must meet anew all of the requirements for an initial certification. There was some evidence presented relative to a pending change in the existing rules, designed to relax the recertification requirements, but there is not sufficient evidence in the record to support a finding of fact on this issue. At best, the prospective rule change would reduce, not eliminate, the eligibility requirements for recertification of individuals whose certificates have lapsed.

   
   

3. The Petitioner, Dennis A. Ryan, received his Emergency Medical Technician certification after a 156 hour college course and a State examination. This was a prerequisite for the 500 hour paramedic course which was completed at the Brevard County Community College. He also has completed adjunctive courses in life support under the standards of the American Heart Association. He is not certified as an associate instructor of Advanced Cardiac Life Support courses, and as instructor/trainer for CPR, advanced first aid, water safety and standard first aid. Under the evidence presented the Petitioner is highly qualified as a paramedic.

   
   

4. The certificate which HRS issued to the Petitioner on August 31, 1979, does not on its face set forth an expiration date. Certificate holders are also issued a wallet-size card on which there does appear an expiration date.

   Between January 1 and August 1, 1980, HRS gave notice by memo directly to persons whose certificates it determined had expired or were about to expire, advising them of the recertification requirements. However, after August 1, 1980, this practice was discontinued. Instead, notices were placed in various newsletters disseminated among the licensed ambulance providers in the State, advanced life support providers, training centers, etc. But without direct notification, or timely reference to his wallet-size card, the Petitioner did not submit his recertification application within the alleged grace period.

   
   

5. Further, until August 1, 1980, HRS engaged in the practice of making exceptions to the rigid paramedic recertification rules, allowing recertification when applied for after what it asserts to be the grace period. This practice was also discontinued after August 1, 1980. Consequently, as a result of the inadvertence of the Petitioner, and the cessation by HRS of its policy of flexibility, the Brevard County area has been deprived of the services of a skilled and experienced paramedic.

   CONCLUSIONS OF LAW

   
   

6. Section 10D-66.39, Florida Administrative Code, is the HRS rule relating to paramedic certification, recertification and training requirements. This rule was promulgated under the authority of Sections 401.21-401.47, Florida Statutes, known as the Florida Emergency and Nonemergency Medical Services Act. Section 10D-66.39(3)(b), Florida Administrative Code, states that certification [of paramedics] must be renewed annually, and it is this subsection which HRS contends establishes a one-year validity period for these certificates.

   
   

7. Having determined that a paramedic certificate is valid for one year, HRS refers to subsection 3(d) of the subject rule as its authority to grant a 60 day grace period, and to subsection 3(c) of the rule to require expired certificate holders to complete its requirements for recertification, which include completion of a U.S. DOT Paramedic Program (a course which the Petitioner now teaches at Brevard County Community College). The use by HRS of these criteria has led it to conclude first, that the Petitioner's certificate expired one year after issuance (August 31, 1980), second, that the prescribed

   60 day grace period expired on October 30, 1980, and, third, that the Petitioner's application for recertification which was received on November 7, 1980 was late, thus requiring that the Petitioner be retrained before recertification can be granted.

   
   

8. However, the initial premise used by HRS, that certificates expire after one year, is erroneous. It has ignored the provisions of Section 401.47(4), Florida Statutes, enacted in 1980. This statute states that "[P]aramedic certification shall be valid for a period of 3 years from the date of issuance." Further, Section 401.47(1), Florida Statutes, states that "[T]he provisions of this section shall become effective on July 1, 1980, and shall expire on July 1, 1981." Thus, the rule of HRS purporting to establish a one year validity period for paramedic certificates (Section 10D-66.39(3)(b), Florida Administrative Code) must yield to the statute quoted above [Grissom v. Van Orsdale, 137 So.2d 246 (Fla. 3d DCA 1962] with respect to certificates expiring between July 1, 1980, and July 1, 1981.

   
   

9. Accordingly, the issue in this case: whether the Petitioner is eligible for recertification as a paramedic, is irrelevant. His certificate was issued on August 31, 1979, and thus it does not expire until August 31, 1982. Consequently, the Petitioner is presently certified, and is not constrained legally from working as a paramedic.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services

advise the Petitioner, Dennis A. Ryan, that his paramedic certification is valid until August 31, 1982, and return to him the recertification application and fee submitted on November 7, 1980.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1981.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1981.

COPIES FURNISHED:

Kenneth C. Crooks, Esquire Post Office Box 37 Titusville, Florida 32780

Samuel P. Stafford, Esquire Assistant District Counsel HRS Disstrict VII, Suite 912

400 West Robinson Street Orlando, Florida 32801

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DENNIS A. RYAN,

Petitioner,

vs. CASE NO. 81-218

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services, having received a Recommended Order in this proceeding and being otherwise well advised in the premises, decides as follows:

The Recommended Order entered by Hearing Officer William B. Thomas on June 15, 1981 is found to be correct and the findings of fact and conclusions of law contained therein are adopted as a part of this Final Order with the following exception:

In the next to the last paragraph of the conclusions of law the hearing officer makes reference to a sentence in subsection (1) of Section 401.47, F.S. (1980 Supp.) which states that the provisions of this section shall be come effective on July 1, 1980 and shall expire on July 1, 1981. Thus, the hearing officer concludes that the provision of subsection (4) of Section 401.47 which provides that paramedic certification is valid for a period of three years only applies to those certificates which expire during the period from. July 1, 1980 through July 1, 1981. The implication of the hearing officer's conclusion of law is that Section 401.47 is not effective after July 1, 1981. However, it is clear that the legislative intent in the 1980 amendment was for the sentence in subsection (1) of Section 401.47 which specifies that this section shall become effective on July 1, 1980 and shall expire on July 1, 1981, to only have application to the immediate preceding sentence in subsection (1) of Section 401.47.

DONE and ORDERED this 25th day of 1981, in Tallahassee, Florida.

Alvin Taylor Secretary

Copies furnished:

Kenneth C. Crooks, Esquire

P. O. Box 37

Titusville, Florida 32780

Samuel P. Stafford, Esquire Assistant District Counsel HRS District VII, Suite 912

400 West Robinson Street Orlando, Florida 32801

William B. Thomas, Hearing Office Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Mr. O. H. Boorde Special Health Services Health Program Office Department of HRS

Oakland Building, Suite 280 Tallahassee, Florida 32301

Mr. D. Schottke

Emergency Medical Services Health Program Office Department of HRS

Oakland Building, Suite 260 Tallahassee, Florida 32301

Docket for Case No: 81-000218

Orders for Case No: 81-000218