STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY R. CLAYCOMB, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2511

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on October 29, 1982, in Pensacola, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Anthony R. Claycomb

c/o Physicians' Laboratories

14 West Jordan Street Pensacola, Florida 32501

For Respondent: Jon Searcy, Esquire

Department of Health and Rehabilitative Services

Post Office Box 12836 Pensacola, Florida 32576

BACKGROUND

These proceedings began on September 7, 1982 when Petitioner, by a letter dated August 31, 1982, filed an appeal of Respondent's denial to license him as a medical technologist. The matter was forwarded to the Division of Administrative Hearings on September 10, 1982 for the assignment of a Hearing Officer and the scheduling of a final hearing. Because it was unclear from the Petitioner's letter of appeal if there were any facts in dispute between the parties, the Hearing Officer entered an Order on September 23, 1982, which required Petitioner to indicate if he disputed the facts asserted in the Department's letter denying his application. On October 5, 1982, Petitioner stated that a fact dispute existed. The case was thereafter scheduled for the final hearing held on October 29, 1982.

At that hearing, both parties presented the testimony of witnesses.

Petitioner offered Exhibits 1-6 which were received into evidence. Respondent offered Exhibits A and B which were received into evidence. At the request of Petitioner, the Hearing Officer took official notice of Subpart M of Part 405 of Chapter III of Title 20 CFR.

At the conclusion of the final hearing the parties were informed of their right to file proposed Recommended Orders and proposed Findings of Fact. The parties stated that they did not intend to submit any proposed findings or orders.

FINDINGS OF FACT

1. On August 4, 1982, Petitioner submitted an application to Respondent to be licensed as a medical technologist. The application stated that he attended High Forest Academy in Nashville, Tennessee, from October 1971 until September 1972. As the result of iris studies there he was issued a certificate of completion in the course of medical laboratory technician.

   
   

2. Mr. Claycomb's instruction at High Forest Academy was for a period of

   52 weeks with no vacations except for national holidays. The ordinary class day consisted of several hours of lecture in the morning with several hours of laboratory work in the afternoon. Class was held five days per week.

   
   

3. To determine if a school is "accredited" the Department relies on data published in the Education Directory of Colleges and Universities by the National Center for Educational Statistics. High Forest Academy is accredited for the instruction of medical technicians but is not accredited as a college or university.

   
   

4. Petitioner has not provided evidence that High Forest Academy is accredited by a nationally recognized accrediting agency or association as determined by the U.S. Commissioner of Education or the Florida Department of Education, or on an equivalent basis by the Department of Health and Rehabilitative Services.

   
   

5. The education Mr. Claycomb received at High Forest Academy, if it had been received at an accredited college or university, is equivalent to 30 to 45 semester hours of instruction.

   
   

6. Mr. Claycomb has been a medical technician for a period of 11 years.

   He is well experienced in the field and has the highest possible recommendations from his present and former employers. He is certified as both a medical technologist and as a medical laboratory technician on the register of American Medical Technologist (AMT). The AMT is a national society which provides certification only upon the passage of a competency examination.

   
   

7. According to one witness on behalf of Mr. Claycomb High Forest Academy is accredited by the Accrediting Bureau of Health Education Schools (ABHES). The witness, who is the past president of the Florida AMT chapter, also testified that the Department accepts ABHES accreditation for purposes of Section 10D-41.25, Florida Administrative Code. Her testimony is hearsay because she was relating what another person told her. There is no independent corroborating evidence; therefore, her testimony does not support a factual finding. 1/

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), Florida Statutes (1981).

9. Clinical laboratories in Florida are regulated by the Department of Health and Rehabilitative Services pursuant to the Florida Clinical Laboratory Law, Part I, Chapter 483, Florida Statutes (1981). Pursuant to Section 483.161, Florida Statutes (1981), the Department is required to prescribe minimal qualifications for clinical laboratory personnel. To discharge this responsibility the Department has promulgated Section 10D-41.25, which provides in part:

   
   

   A technologist shall meet one of the following requirements:

   (9) Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as a major subject, and at least four years of

   pertinent experience in an approved laboratory,

   . . .

   
   

10. petitioner does not meet this requirement for licensure. High Forest Academy is not an accredited college or university. Even if it were, his course of education is not the equivalent of more than 45 semester hours, 15 hours short of the minimum required.

    
    

11. Petitioner has argued that his experience is the equivalent of the academic credit which he is lacking. There is no question that he is practically well qualified. He has received glowing recommendations from his former employers and may have already performed the same functions as are routinely performed by a medical technologist; nevertheless, the rule as applicable here gives credit only for four years of experience.

16. Because the validity of Section 10D-41.25(9), Florida Administrative Code, has not been successfully challenged in a proceeding under Section 120.56, Florida Statutes, the rule is deemed to be valid and must be applied here. This conclusion is guided by the reasoning in Kiran Kumar N. Upadhyaya v. Florida Department of Health and Rehabilitative Services, 3 FALR 1852A (Florida Department of Health and Rehabilitative Services, Final Order, August 28, 1981). The Petitioner there sought a license as a medical technologist in the specialty of cytotechnology. He was well qualified in terms of practical experience but could not meet the literal terms of Section 10D-41.25(11)(a) and (b), Florida Administrative Code. The Hearing Officer's Recommended Order that his license application be denied was adopted by the Department.

RECOMMENDATION

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

That Mr. Anthony R. Claycomb's application to be licensed as a medical technologist be denied without prejudice to his reapplication upon the successful completion of two years of academic study at an accredited college or university.

DONE and RECOMMENDED this 3rd day of November, 1982, in Tallahassee, Florida.

MICHAEL P. DODSON

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 3rd day of November, 1982.

ENDNOTE

1/ Section 120.58(1)(a), Florida Statutes (1981).

COPIES FURNISHED:

Anthony R. Claycomb

c/o Physicians' Laboratories

14 West Jordan Street Pensacola, Florida 32501

Jon Searcy, Esquire Department of Health and

Rehabilitative Services Post Office Box 12836 Pensacola, Florida 32576

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Alicia S. Jacobs, Esquire General Counsel

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-002511

Orders for Case No: 82-002511