STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD SHANE, O.D., )

)

Petitioner, )

)

vs. ) CASE NO. 82-3213

) STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on April 11, 1983, in Hearing Room 2, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida. This Recommended Order is being entered following the receipt and review of the transcript of hearing which was filed with the Division of Administrative Hearings on May 5, 1983. 1/

APPEARANCES

For Petitioner: Martin S. Friedman, Esquire

Myers, Kenin, Levinson, Ruffner Frank & Richards

1020 East Lafayette Street Tallahassee, Florida 32301

For Respondent: Ms. Druci1la Bell

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

ISSUES

The issues herein concern the question of the Petitioner's entitlement to retake portions of the examination of the Board of Optometry which he failed in July, 1982. Petitioner proposes, in his request for relief, to stand those elements of the examination in lieu of the current style of examination which is a national examination. The prior examination had a local emphasis. In addition, Petitioner seeks additional time between re-examination segments to allow nourishment and exercise to address symptoms of an alleged handicap.

FINDINGS OF FACT

1. Petitioner is a licensed optometrist practicing in the State of Pennsylvania. He graduated from Pennsylvania State College of Optometry in 1959 and began his practice of optometry in that state in 1962.

2. In 1979, Petitioner was stricken with Stevens-Johnson Syndrome, a form of autoimmune reaction. As a result of this circumstance, Petitioner was hospitalized for a period of several months and suffered loss of skin and hair and temporary blindness. In the course of this illness, Petitioner suffered extreme high temperatures and lost 65 pounds in the period of 18 days. As a result of his affliction, Petitioner was advised to locate in a climate which was warmer than that of Pennsylvania, in view of the fact that his condition did not allow him to tolerate cold temperatures. Petitioner is also an insulin variable diabetic and that condition was brought about by the treatment for Stevens-Johnson Syndrome. The diabetic condition, in the face of the Stevens- Johnson Syndrome, is difficult to treat because utilization of the compounds which control diabetes cause complications with Stevens-Johnson Syndrome. Subsequent to the time that the problem occurred with the Stevens-Johnson Syndrome, Petitioner suffered a miocardial infarct. These events related to Petitioner's health have made it difficult for him to be involved in sustained activities which require use of his vision, such as academic studies.

   
   

3. In response to his health circumstance, Petitioner decided to seek a license to practice optometry in the State of Florida. Initially, in correspondence dated June 2, 1980, a copy of which may be seen as Petitioner's Exhibit No. 1 admitted into evidence, Petitioner requested licensure based upon reciprocity between the states of Pennsylvania and Florida. This correspondence was addressed to Mildred Gardner, who is the Executive Director of the Board of Optometry. In that correspondence, Petitioner also indicated the problems experienced with Stevens-Johnson Syndrome, his diabetic condition, and the miocardial infarct. Petitioner wrote to Ms. Gardner again on July 10, 1980. A copy of that correspondence may be found as Petitioner's Exhibit 2 admitted into evidence. In this correspondence, he alludes to a letter from Ms. Gardner of June 10, 1980, and his concern that he not be required to undergo the study necessary to stand an examination for licensure in the State of Florida. Petitioner also expressed his desire to communicate with members of the Optometric Board in the State of Florida.

   
   

4. Dr. Edward K. Walker, a member of the Florida State Board of Optometry, advised the Petitioner that he would have to undergo the examination for licensure and would not be entitled to licensure by endorsement or reciprocity. In response to this indication, Petitioner wrote to Dr. Walker on August 13, 1981. A copy of that correspondence may be found as Petitioner's Exhibit No. 3 admitted into evidence. In this letter, Petitioner explains his concern about the ability to undertake the necessary studies to prepare to stand the license examination. Particular emphasis is placed upon the problem with diabetes which hinders his recall function and the fact that variance in the blood sugar level during the course of his day will determine the outcome of the quality of Petitioner's performance in an examination. In the letter, Petitioner also alludes to his problems related to the Stevens-Johnson Syndrome which makes it difficult to sustain "near work". Finally, Petitioner indicates that his cardiologist had suggested that the Petitioner should not be involved with induced tension. Petitioner later told Dr. Walker, in the course of a telephone conversation, that his condition was such that he could not spend a great deal of time studying, and would not be able to stand any "long term" examination, because of his health. In this discussion, Petitioner was told he would have to stand the examination. Subsequently, Petitioner requested the necessary forms to make application for licensure.

   
   

5. Petitioner made application for examination and was provided examination information as set forth in Petitioner's Composite Exhibit No. 4.

   The information was related to the July 23-25, 1982, sitting. The examination information pamphlet pointed out that the written portion would be given on July 23, 1982, and specifically set forth the various sections within that examination schedule. The examination written portion was for a period of 10 hours with an hour break for lunch. Petitioner was provided a telephone number and the name of Mr. Thomas P. Gabriele, should he need further assistance on the topic of the examination. Petitioner was not made aware, prior to standing the examination, of the existence of Rule 21-11.8, Florida Administrative Code, which indicates that examinees who have certifiable handicaps and need special consideration or accommodation must make necessary arrangements with the Department of Professional Regulation before the examination date.

   
   

6. In the course of the preparation for the examination, Petitioner sustained a problem with a vitreous detachment in one of his eyes. In effect, the retina became detached. Consequently, Petitioner would be able to read for a period of 15 minutes in his study, but then had to cease the activity. Petitioner's diabetic condition also was fluctuating during the course of his preparation for the examination and affected his vision. Petitioner also would become "giddy" during this period due to the diabetic condition, and had difficulty concentrating. He also suffered palpitations and heart pain during the sequence of preparation.

   
   

7. Notwithstanding the problems encountered in preparing for the examination, and the concern which Petitioner had about the rigorous schedule on the day the written portion of the licensure examination would be given, Petitioner did not notify the State of Florida, Department of Professional Regulation, Office of Examination Services, about problems either through contact with Mr. Gabriele or other persons within the testing agency. Had Petitioner made contact and requested special consideration for his diabetic condition and related matters, he would have been allowed to bring food into the room, to take breaks, to provide himself with insulin, or other special Opportunities.

   
   

8. The license examination of July 23, 1982, was con- ducted by an employee of the Department of Professional Regulation who was experienced in the administration of examinations and with the assistance of proctors who were trained in the proper methods of examination administration.

   
   

9. On July 23, 1982, the date of the written examination, Petitioner managed to perform in an acceptable manner in the initial parts of the examination; however, at approximately 11:30 a.m., Petitioner began to experience difficulty. Those difficulties were related to problems with the insulin which he was receiving, to the extent that the words on the examination documents became blurred and his hands began to shake. Nonetheless, he was able to complete that aspect of the written examination because of the ability to work from an open (book). That particular phase of the examination did not require the utilization of recall. In summary, Petitioner was successful as a candidate on those portions of the examination given on the morning of July 23, 1982. At lunchtime, Petitioner did not find the available food in the restaurant in the examination facility acceptable, in view of his diabetic condition and only was able to eat toast and a salad to sustain him. During the lunch break, Petitioner also ate dried fruit, which he had provided for himself, and took a tranquilizer. After taking his lunch, Petitioner still felt ill. He began to notice that his lip gave him a tingling sensation and had difficulty sustaining his efforts at reading. He realized that he was going to have problems with the afternoon portion of the examination, in that in addition to other symptoms described, he began to have palpitations related to his heart

   problem. In the afternoon testing session, Petitioner's lip started to swell beyond dimensions noted at lunchtime. Respondent felt "giddy" and subject matter which he felt was relatively easy to answer in the examination was difficult to comprehend. When he attempted to obtain food from his coat pocket, he was advised that he could not take things out of his pocket. This admonition was given based upon a concern that candidates for licensure not cheat in the course of the examination process. Petitioner did not adequately explain the reason for his attempt to retrieve the food from his pocket, nor did he at any time during the course of the license examination on the date in question, explain to examination officials that he was experiencing physical problems.

   Petitioner did not pass those portions of the written examination administered in the afternoon of July 23, 1982, although he attempted to overcome his physical problem related to concentration, associated physical manifestations, to include vision and induced euphoria. Those subjects were pharmacology and theory and practice of optometry. (The Florida Board of Optometry now utilizes a national optometry examination in substitution for the examination in pharmacology and the theory and practice of optometry which was given in the afternoon of July 23, 1982.)

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.

    
    

11. It was appropriate for the Florida Board of Optometry to require Petitioner to undergo the license examination of July, 1982. Petitioner having knowledge of that requirement and the fact that it entailed a strenuous day's activity related to the written portion of the examination, should have made arrangements for Respondent to accommodate his special health problems prior to the time of the examination. Failing to make those arrangements, Petitioner should have advised the Respondent's examination employees at the moment that he began to experience difficulty on the day of the written examination. This obligation was placed upon the Petitioner, notwithstanding prior comments which he had made to officials of the State of Florida, Department of Professional Regulation and Florida Board of Optometry on the subject of his health condition, in his efforts to gain licensure by reciprocity. Once Petitioner became aware that reciprocity was not available to him, that he must stand the license examination, it was necessary for Petitioner to undertake affirmative measures to accommodate his special needs, only at that moment would Respondent become obligated to assist Petitioner in addressing those particular concerns. Respondent was not required to reveal the existence of Rule 21-11.08, Florida Administrative Code, dealing with the provisions related to certifiable handicaps, prior to the date of the license examination or on the date of that examination. That rule obligates Petitioner to take the initial steps to advise Respondent of his health condition when it says Petitioner must make necessary arrangements with the Department before the examination date". Respondent would have replied to the request in keeping with the terms and conditions set forth in the rule, because of the existence of that rule, whether Petitioner had been made aware of the rule prior to the examination date or not. Petitioner failed to make the necessary arrangements with Respondent and was not successful in his candidacy for licensure on those portions of the examination which were given in the afternoon. He is not, under these facts, entitled to re-examination on those portions which he failed utilizing an examination which is similar to that given in July, 1982. Petitioner must undergo examination on the basis of the test in existence then should he choose to be re-examined for licensure by the Florida Board of Optometry. See Subsection 455.217(2), Florida Statutes, and

Subsection 463.006(2), Florida Statutes. At any future examination session, Petitioner must notify Respondent of special needs prior to the examination dates or at the time of the examination, should an emergency occur, before he is entitled to special attention. It is, therefore,

RECOMMENDED:

That a Final Order be entered which denies Petitioner's requested relief related to re-examination under the format of the examination given in July, 1982, on the subjects of pharmacology and theory and practice of optometry.

DONE and ENTERED this 7th day of June, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1983.

ENDNOTE

1/ The parties, in the person of counsel, have offered proposed recommended orders. These proposals have been considered prior to the entry of the Recommended Order. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected.

COPIES FURNISHED:

Martin S. Friedman, Esquire Myers, Kenin, Levinson, Ruffner

Frank & Richards

1020 East Lafayette Street Tallahassee, Florida 32301

Ms. Drucilla Bell Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Mildred Gardner Executive Director Board of Optometry

130 North Monroe Street Tallahassee, Florida, 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida, 32301

Docket for Case No: 82-003213

Orders for Case No: 82-003213