STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS J. DONEGAN, )

)

Petitioner, ) vs. )

) CASE NO. 86-4181 DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on February 17, 1987.

APPEARANCES

For Petitioner: Dennis J. Donegan, pro se

2389 Beacon Rose Blvd. Palm Harbor, Florida 33563

For Respondent: Barbara McPherson, Esquire

2255 East Bay Drive Clearwater, Florida

By letter dated September 25, 1986, Dennis J. Donegan, Petitioner, requested an administrative hearing to contest the denial by the Department of Health and Rehabilitative Services, Respondent, of his application to take further technologist level examinations in the State of Florida. His application to take the technologist license examination was denied because he failed to meet the educational requirements to sit for such examination.

At the hearing Petitioner testified in his own behalf and one witness was called by Respondent. No transcript of these proceedings was ordered and the parties waived the right to submit proposed Recommended Orders.

FINDINGS OF FACT

1. In October 1985, Dennis J. Donegan, Petitioner, qualified for and took the examination for medical technologist in hematology. He passed the examination and was subsequently so licensed.

   
   

2. Effective January 1, 1986 new rules were adopted increasing the requirements for eligibility for applicants to take examinations in the various fields of medical technologist specialties.

   
   

3. Although this rule was adopted by Respondent after complying with the procedural requirements for adopting rules, Petitioner was not personally notified of the change and was unaware of the increased requirements until his

   application to take the fall 1986 examinations in chemistry and microbiology specialties was denied. By letter dated August 27, 1986 Respondent denied the application because Petitioner did not meet the education requirements established by the rule which became effective January 1, 1986.

   
   

4. Petitioner contends that had he known of the proposed rule change he would have applied and sat for all of the various laboratory technologist specialty examinations before the rule change became effective. Petitioner further contends that under Rule 10D-41.69(6) he is qualified to sit for the examination by reason of being an applicant who was qualified to sit for an examination prior to January 1, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Rule 10D-41.69, Florida Administrative Code, establishes the requirements for laboratory technologists. Petitioner acknowledges that he does not have the academic qualifications established by this rule which become effective January 1, 1986, but contends he qualifies pursuant to subparagraph

   (6) which states:

   
   

   For applicants applying prior to January 1, 1986, achievement of a satisfactory grade on the Office of Health and Human Services approved proficiency examination in clinical laboratory technology and at least

   6 years of pertinent experience in an approved laboratory.

   
   

7. Petitioner's principal contention, that by qualifying prior to January 1, 1986, to take the laboratory technologist examination in hematology, he thereby qualified to take subsequent examinations in the other technologist specialties, is without merit. Had Petitioner qualified for those other specialty examinations prior to January 1, 1986, his position would have greater merit.

   
   

8. To hold, as Petitioner contends, that once qualified an applicant would thereafter always be qualified would negate the intended purpose of the rule change which is to upgrade the qualifications for laboratory technicians.

   
   

9. From the foregoing it is concluded that Petitioner's application to take the laboratory technologist examination in chemistry and microbiology in October 1986 was properly denied because he lacks the education requirements needed to take this examination. It is

RECOMMENDED that Petitioner's application to sit for laboratory technologist examination be denied.

ENTERED this 24th day of February, 1987, in Tallahassee, Florida.

K.N. AYERS 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 24th day of February, 1987.

COPIES FURNISHED:

Barbara McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive

Clearwater, Florida Dennis J. Donegan 2389 Beacon Groves Boulevard

Palm Harbor, Florida 33563

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-004181

Orders for Case No: 86-004181