STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIRAN KUMAR M. UPADHYAYA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-407

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on June 9, 1981, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Kiran Kumar M. Upadhyaya, pro se

7610 Sterling Road Apartment C-106 Hollywood, Florida 33034

For Respondent: Harold L. Braynon, Esquire

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

The Petitioner seeks licensure as a medical technologist in the specialty of cytotechnology (cytology). The Petitioner is a licensed clinical laboratory technologist licensed in six areas of expertise specified in Section 483.161, Florida Statutes. He seeks licensing in cytotechnology and timely filed his application accordingly. That application was denied by letter of denial by the Respondent on February 6, 1981. The grounds for denial were that the Petitioner had not complied with Rule 10D-4l.25(11)(a) and (b) , Florida Administrative Code, promulgated pursuant to the above statutory section in that the Petitioner had not successfully completed two years of academic study (a minimum of 60 semester hours or the equivalent in quarter or trimester hours) in an accredited college or university with chemical, physical or biological sciences as his major subject, had not successfully completed one year of training or internship in cytotechnology in a program approved by the Council on Medical Education of the American Medical Association or an equivalent accepted by the Respondent.

Neither had the Petitioner achieved a satisfactory grade in the US Public Health Service proficiency examination in cytotechnology, according to the Respondent. Thus, the issue is whether the Respondent's denial of the Petitioner's application for licensure in the area of cytotechnology was warranted on this basis.

The Petitioner testified on his own behalf, and Respondent presented one witness and two exhibits.

FINDINGS OF FACT

1. The Petitioner holds a Bachelor of Science degree in microbiology from Gujarat University in India. He has also worked in a master's program in medical microbiology as well as taken courses in zoology at Maharashtra University in Bombay, India. Since then he worked from 1970 through 1974 in various laboratory technologist capacities at a medical laboratory as well as at several hospitals in India. Since coming to the United States he has worked at Doctors Hospital in Hollywood, Florida, apparently working in all his presently attained specialties. While in India, the Petitioner worked not only as a medical technologist, but as a supervisor and director of medical technologists as well during the years above-mentioned and up through the early portion of 1980. He began working in that capacity at Doctors Hospital in Hollywood in May of 1980. The Petitioner filed his application for licensure in the field of cytology on February 3, 1981. After review, the Respondent denied the application by letter of February 6, 1981, indicating that, as described above, the required educational requirements for licensure had not been met. The Respondent timely requested a hearing, and at the hearing he presented evidence as outlined above of his experience in the various fields of medical technology. He has a keen interest in pursuing a career in cancer research based upon his family history involving a number of family members who were cancer victims, as well as the fact that medicine is his family's traditional profession. He has set a goal of acquiring specialties in all the fields of medical technology with a view toward working in the area of cancer research and research in extending the human life span. The Petitioner presented evidence, with the stipulation of the Respondent, in the form of a letter from the General Secretary of the Indian Red Cross Society attesting to his position as supervisor of a blood bank in India, as well as one from an Indian blood bank attesting to his ability in the area of hematology. There is no question, however, and the Petitioner ultimately conceded, that he does no have the required educational course work approved by the Council on Medical Education of the American Medical Association, th required internship, nor has he taken the US Public Health Service proficiency examination, all of which are prerequisites to licensure as a medical technologist in the specialty of cytology. The Petitioner's testimony establishes that although hi past experience and education entitled him to licensure in the areas of specialty described above, he was unaware when he applied that these requirements had to be met before he could be licensed in cytology, especially in view of the fact that he had worked in that field extensively during his experience in India. The Petitioner expressed a willingness to immediately enroll in an internship program apparently offered at Jackson Memorial Hospital in Dade County in the field of cytology, and there has been shown to be no legal impediment to his licensure in this field once he completes the educational requirements embodied in the above rule.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

   
   

3. Section 483.161, Florida Statutes, provides as follows:

   
   

   Qualifications of clinical laboratory personnel.--The Department of Health and Rehabilitative Services shall prescribe minimal qualifications for clinical labora-

   tory personnel in microbiology, serology, chemistry, hematology, immunohematology, biophysics, cytotechnology or histopatholo- gical technology and shall issue a license to any person who meets the minimum quali- fications and who demonstrates that he possesses the character, training and ability to qualify in those areas for which

   the license is sought. Examinations required shall be given by the department.

   
   

4. Section 483.141, Florida Statutes, provides in pertinent part that no person shall conduct a clinical laboratory examination or report the results of such examination unless he is licensed under that section to perform such procedures. Section 483.151 provides in its materiality that applications for clinical laboratory personnel licenses . . . shall be made under oath on forms provided by the Department and shall be issued authorizing the performance and procedures of one or more categories."

   
   

5. Rule 10D-41.25(11)(a) and (b), Florida Administrative Code, is promulgated under the above statutory authority and provides as pertinent hereto that a candidate for licensure in cytotechnology must successfully complete two years of academic study or a minimum of 60 semester hours, or their equivalent in quarter or trimester hours, in an accredited college or university with a chemical, physical or biological science major as well as one year of training in an internship program in that specialty approved by the Council on Medical Education of the American Medical Association or an equivalent accepted by the Department or must have achieved a satisfactory grade on the US Public Health Service proficiency examination in cytotechnology.

   
   

6. There is no question based upon the evidence in this record, and indeed the Petitioner ultimately admitted, that he does not possess at the present time the required educational background for a specialty in cytology or cytotechnology. Thus, he cannot at this time be legally licensed in that area of specialty as a clinical laboratory technologist. He is keenly desirous of obtaining that specialty and being duly licensed, and there has been shown to be no other legal impediment to his obtaining licensure in that specialty. Indeed, the record establishes in an uncontroverted manner that the Petitioner has worked in that area of specialty for at least a year in India, but the question of recognition of that experience as fulfilling a portion of the requirements of the above rule was not put at issue in this cause. The fact remains that the Petitioner has unfortunately not yet complied with the standards for that specialty extant in the State of Florida and embodied in the above rule. This he must do before he can be licensed in this state. Therefore, although the Petitioner may be qualified from the standpoint of experience, he must obtain the required educational and internship experience recognized in this state before he may be licensed as a clinical laboratory technologist in the specialty of cytotechnology.

RECOMMENDATION

Having considered the evidence in the record, the candor and demeanor of the witnesses and the arguments of the parties, it is therefore

RECOMMENDED:

That the application of Kiran Kumar M. Upadhyaya for licensure as a clinical laboratory technologist in the specialty of cytotechnology be denied without prejudice to the Petitioner's renewing his application for licensure when he has complied with the requirements of Rule 10D-41.25(11)(a) and (b) Florida Administrative Code.

DONE AND ENTERED at Tallahassee, Florida, this 7th day of August, 1981.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981.

COPIES FURNISHED:

Kiran Kumar M. Upadhyaya 7610 Sterling Road Apartment C-106 Hollywood, Florida 33034

Harold L. Braynon, Esquire District Ten Legal Counsel Department of HRS

800 West Oakland Park Blvd. Ft. Lauderdale, Florida 33311

Docket for Case No: 81-000407

Orders for Case No: 81-000407