STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCY WEI-NOR YU, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3209

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on February 11, 1982, in Daytona Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Appeared on her own behalf

Mr. Peter Lu, translator

For Respondent: Drucilla E. Bell,

Tallahassee, Florida

The Petitioner has filed an application with the Department of Professional Regulation for licensure as an acupuncturist. By letter dated November 19, 1981, the Department denied the application and refused to allow the Petitioner to sit for the acupuncture examination. Petitioner requested a formal administrative hearing. By letter dated December 22, 1981, the Department forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The hearing was scheduled as set out above by notice dated January 28, 1982.

At the hearing, the Petitioner testified through her interpreter, Peter Lu, as a witness on her own behalf; and Mr. Lu also testified in support of Petitioner's application. Respondent's Exhibits 1 and 2 were offered into evidence and were received. A letter was submitted by Mr. Lu subsequent to the hearing in support of Petitioner's application; and the Department has filed a proposed recommended order, which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the findings and conclusions which follow. They have been otherwise rejected as contrary to the evidence, not supported by the evidence, irrelevant to the issues, or erroneous as a matter of law.

The issue in this proceeding is whether the Petitioner meets the qualifications for licensure as an acupuncturist and should therefore be permitted to take the acupuncture examination.

FINDINGS OF FACT

1. Petitioner graduated from high school in the People's Republic of China in 1972. She thereafter worked for a short time in a factory that manufactured Chinese medicines as a foreman. She became interested in Chinese medicine and enrolled in Kenchow Chinese Medical College, a nighttime professional university. She studied chemistry, biochemistry, and Chinese medicine. As a part of this program, she studied acupuncture meridians and points. For a full year, she spent two hours per day in classroom studies directly related to acupuncture and two hours practicing acupuncture as an apprentice. Thereafter, from 1973 until 1980, she worked as an acupuncturist for four hours per day, six days per week. She worked at a Chinese medicine industrial research center. In addition to her work with patients as an acupuncturist, she was involved in field studies regarding herbs and Chinese medicines and in the recording of statistics and research data. During this same time, the Petitioner enrolled in a correspondence course at Western Pacific College in Hong Kong. This program included courses in the basic theory of Chinese medicine, including courses specifically dealing with the theory and practice of acupuncture. The Petitioner enrolled at Western Pacific College so that she could receive certification as an acupuncturist. She already had completed similar work at Kenchow, and she was able to complete the course work by devoting approximately two hours per week to it. She received a certification from Western Pacific College that she completed the acupuncture course. The certification is dated January 20, 1980.

   
   

2. In January, 1981, Petitioner moved to the United States. Since May, 1981, she has worked under the supervision of physicians performing acupuncture treatments in Volusia County, Florida. Petitioner appears to have sufficient education and experience to practice as an acupuncturist.

   
   

3. The Department of Professional Regulation has not approved any programs of education in acupuncture or any apprenticeship programs in acupuncture.

   There is insufficient evidence in the record in this matter from which it could be determined that the programs offered at either Kenchow Chinese Medical College or Western Pacific College should be approved by the Department.

   Inquiries directed to the schools by the Department have not been answered, and the Petitioner has been unable to obtain transcripts of her course work. It cannot be determined whether anyone in any of the clinical portions of the educational programs attended by Petitioner were certified acupuncturists.

   
   

4. The Department of Professional Regulation has not approved any apprenticeship programs for the practice of acupuncture. While it appears that Petitioner has an ample theoretical and practical background as an acupuncturist, it does not appear that prior to her coming to the United States she was ever supervised by a person who is licensed under Chapters 458, 459, or 468, Florida Statutes. Indeed, since all of her experience was in China, it is extremely unlikely that she was supervised by any such person.

   
   

5. Petitioner has been practicing as an acupuncturist since May, 1981, under supervision as required under Chapters 458 and 459, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1) and 120.60, Florida Statutes.

7. The qualifications for certification as an acupuncturist are set out in Section 468.323, Florida Statutes. In order to be eligible to sit for an examination, an applicant for licensure must establish that he or she: [Section 468.323(2)(b)]

   
   

   1. Has completed a 2-year program of education in acupuncture in a school

      or college approved by the department; or

   2. Has completed 2 years in an appren- ticeship program in accordance with subsection (3); provided that prior to July 1, 1981, full-time and continuous practice of acupuncture under chapter

      458 or chapter 459 may be substituted on an equivalent basis for all or part of the 2-year apprenticeship program approved by the department.

      
      

      The requirements for an approved apprenticeship program are set out at Section 468.323(3) as follows:

      
      

      The department may approve programs of apprenticeship to be served under a supervised licensee under chapter

      458 or chapter 459 or a certified acu- puncturist who has been approved by the department, provided the programs do not involve the training or employ- ing of more than three apprentices at any time under one supervisor, the licensee or acupuncturist

      remains on the premises while the apprentice is performing acupuncture, and the name of the apprentice is filed with the department prior to commencement of training.

      
      

      Therefore, in order to qualify to sit for the acupuncture examination, an applicant must either have attended a program of education approved by the Department, completed an apprenticeship program approved by the Department, or practiced as an acupuncturist under Chapters 458 or 459, Florida Statutes, for two years prior to July 1, 1981. Since the Department has not approved any programs of education or apprenticeship programs, it is only possible for an applicant to qualify to sit for the examination if he or she completed two years of practice of acupuncture under Chapters 458 or 459 prior to July 1, 1981.

      
      

   3. There is insufficient evidence in the record in this proceeding to establish that the program of education completed by Petitioner should be approved by the Department. Indeed, the Department's rules require that a program of education in order to gain approval must include a clinical portion of supervised practice under the supervision of a certified acupuncturist. Department of Professional Regulation Rules 21-12.08(1)(d) and (i). Since the educational programs attended by Petitioner were located in China, it is highly unlikely that she was supervised by anyone who is certified to practice acupuncture in Florida.

   4. There is insufficient evidence in the record of this proceeding from which it could be concluded that the Petitioner's experience in China should be accepted as a proper apprenticeship program. Indeed, the statutes and the Department's rules (Rule 21-12.18) require that such apprenticeship programs be sponsored and supervised by persons who are licensed under either Chapters 458, 459, or 468, Florida Statutes. Since the Petitioner's experience was in China, it is highly unlike that she was supervised by any person licensed under the laws of Florida.

      
      

   5. Since the Petitioner did not come to the United States until January, 1981, it is evident that she did not achieve two years of experience under the provisions of Chapters 458 or 459, Florida Statutes, prior to July 1, 1981. It is, of course, impossible that she could ever achieve experience prior to a date that is now past.

      
      

   6. Petitioner does not qualify for licensure as an acupuncturist in Florida under Florida Statutes, Chapter 468, or under the Department of Professional Regulation's rules, Chapter 21-12, Florida Administrative Code. Unless the Department acts to approve some educational program or apprenticeship program, it is impossible for the Petitioner to ever qualify for licensure.

This case presents an unhappy situation where a person is competent and able in a field, but as a result of statutory and regulatory aberrations is unable to practice her profession.

RECOMMENDATION

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

RECOMMENDED:

That a final order be entered denying the application of Lucy Wei-Nor Yu for licensure as an acupuncturist in Florida.

RECOMMENDED this 9th day of March, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 9th day of March, 1982.

COPIES FURNISHED:

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Lucy Wei-Nor Yu 1360 Ridgewood Avenue

Holly Hill, Florida 32017

Mr. Samuel R. Shorstein Secretary, Department of

Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003209

Orders for Case No: 81-003209