b

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY C. NOUS )

)

Petitioner, )

)

vs. ) CASE NO. 95-1847

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on July 19, 1995, in Tampa, Florida.

APPEARANCES

For Petitioner: Joseph Bohren, Esquire

2507 Clark Road

Tampa, Florida 33618

For Respondent: Laura Gaffney, Esquire

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue for determination in this case is whether Petitioner should be granted a temporary certificate to practice midwifery in an area of critical need.

PRELIMINARY STATEMENT

On November 3, 1994, Respondent, Agency for Health Care Administration, denied the application of Petitioner, Mary C. Nous, for issuance of a temporary certificate to practice midwifery in an area of critical need. Petitioner filed a timely notice of request for formal hearing, and on April 17, 1995, the case was referred to the Division of Administrative Hearings, (DOAH), to conduct all further proceedings.

Pursuant to the Prehearing Order entered on June 16, 1995, the parties filed a Prehearing Stipulation on July 7, 1995. At hearing, Petitioner testified on her own behalf, and presented the testimony of three witnesses, Quentin DeHaan, M.D., JoAnne Hodge, L.M., and Shawna Doran, M.S., A.R.N.P., L.M.. Petitioner also presented twenty-five exhibits which were received into evidence. Respondent presented the testimony of Dianne Clark. A transcript of the hearing was filed July 27, 1995.

Each party filed a Proposed Recommended Order. Separate rulings on the proposed findings of the parties are set forth in the Appendix attached hereto.

FINDINGS OF FACT

1. On September 2, 1994, Petitioner, Mary C. Nous, filed an application with Respondent, Agency for Health Care Administration, for a temporary certificate to practice midwifery in Hillsborough County, Florida, an area of critical need.

   
   

2. Petitioner holds a valid certificate (No. LMW-11) to practice midwifery in the State of South Carolina which was originally issued to Petitioner on December 21, 1992.

   
   

3. At the time Petitioner received her certificate to practice midwifery in South Carolina, South Carolina did not require graduation from a formal midwifery program, nor did South Carolina require passage of an examination for certification as a midwife.

   
   

4. Petitioner has not graduated from a formal midwifery program.

   
   

5. On November 3, 1994, Respondent denied Petitioner's application for a certificate to practice midwifery in an area of critical need on the grounds: 1) that Petitioner had not graduated from a formal midwifery program; and, 2) that the statutory requirements of South Carolina at the time Petitioner received her certificate to practice midwifery were not substantially equivalent to, nor did they exceed the requirements for licensure as established by Florida law.

   
   

6. Although Petitioner has not graduated from a formal midwifery program, Petitioner has obtained extensive practical experience and training working with health care professionals providing obstetric health care.

   
   

7. Beginning in 1983, Petitioner was employed as an assistant to Quentin DeHaan, M.D., an experienced obstetrician, who at that time had an obstetrics practice in Hillsborough County, Florida. Petitioner's practical training with Dr. DeHaan included patient management during the prenatal period, nutritional aspects of pregnancy, and prenatal counseling. Petitioner also was trained in the labor and birth process, and management of the complications of pregnancy.

   
   

8. Prior to her employment with Dr. DeHaan, Petitioner had attended a Licensed Practical Nursing program at Albany Medical Center in New York, and had worked with the Visiting Nurse Association.

   
   

9. On June 13, 1984, Petitioner received her Diploma of Graduation from Leto Adult High School in Tampa, Florida.

   
   

10. On September 13, 1984, Petitioner also received a Diploma of Graduation for a Medical Secretary from the Medical Education Center in Tampa, Florida.

    
    

11. In 1984 Dr. DeHaan decided to move his obstetrics office and to open the Natural Childbirth Center (Center) in Tampa, Florida. The Center offered midwifery services. Shortly thereafter, Petitioner went to work at the Center. At the Center, Petitioner first worked with Barbara Hammond, a Licensed Midwife in the State of Florida. From 1984-1989, Petitioner also worked with Shawna Duran, a Licensed Midwife in the State of Florida at the Center. Petitioner continued her practical training while assisting the midwives at the Center.

12. In 1990 Dr. DeHaan sold the Center to JoAnne Hodge, L.M., who now operates the New Beginnings Natural Childbirth Center. Petitioner has been employed with Ms. Hodge at New Beginnings since that time.

    
    

13. During the course of her work experience, Petitioner has participated in more than nine hundred deliveries. Petitioner's skills relating to prenatal care, counseling, nutrition and the birthing process are highly regarded by Dr. DeHaan and the midwives she has worked with at the Center. Except for some theoretical aspects of the practice of midwifery, Petitioner's midwifery skills are comparable to the skills of a midwife who has graduated from a formal program. Petitioner's practical training and experience encompass the subject areas included in a formal midwifery program.

    
    

14. In addition to her practical training, Petitioner has completed courses and seminars on childbirth offered by the International Childbirth Education Association. Petitioner also has served as an instructor on childbirth and nutrition during pregnancy at Hillsborough Community College, and is highly regarded in this capacity.

    
    

15. Current Florida requirements for a formal midwifery program include a three-year curriculum; however, the Respondent agency has on one previous occasion, approved the application for a temporary certificate in an area of critical need of a midwife, licensed in a foreign jurisdiction, who had completed a two-year formal midwifery program which was deemed substantially equivalent by the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Chapter 467, Florida Statutes, provides two methods for licensure to practice midwifery. The first statutory method under Section 467.011, Florida Statutes, provides for licensure by examination. This provision requires an applicant to graduate from an approved formal midwifery program as set forth in Section 467.009, Florida Statutes, and to successfully complete the licensed midwifery examination. Under Section 467.009(2), Florida Statutes, an approved formal program includes a course of study and clinical training for a minimum of three years.

    
    

18. The second statutory method for licensure to practice midwifery is set forth in Section 467.0125, Florida Statutes, and provides for licensure by endorsement. This provision has a threshold requirement that an applicant either have graduated from a medical or midwifery institution or midwifery program with equivalent requirements, or that an applicant hold a valid certificate or license to practice midwifery in another state, provided that the requirements therefor are deemed by the department to be substantially equivalent, or to exceed those established under Florida law. An applicant qualifying for licensure under Section 467.0125, Florida Statutes, is then required to complete a four-month prelicensure course, and to successfully pass the licensed midwifery examination.

    
    

19. Section 467.0125(2), Florida Statutes, provides that the department may issue a temporary certificate to practice midwifery in an area of critical need to an applicant who is qualifying for licensure by endorsement.

20. The requirements for licensure in South Carolina at the time Petitioner was issued her license were not substantially equivalent to those established under Florida law. Accordingly, Petitioner does meet the threshold requirement of Section 467.0125(1)(a)2., Florida Statutes, and is not qualifying for licensure by endorsement as required by Section 467.0125(2), Florida Statutes, for issuance of a temporary certificate to practice midwifery in an area of critical need. While Petitioner by her practical training and experience has obtained the skills necessary to practice midwifery, Florida law does not provide a method for licensure to practice midwifery through practical training and experience.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner's application for a temporary certificate to practice midwifery in an area of critical need be DENIED.

RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of August, 1995.

RICHARD HIXSON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1995.

APPENDIX

As to Petitioner's Proposed Findings in Recommended Order No. 1: 1-4. These paragraphs constitute proposed conclusions of law,

not proposed findings of fact.

As to Petitioner's Proposed Findings in Recommended Order No. 2:

1. Accepted and incorporated.

2-4. These paragraphs constitute proposed conclusions of law. As to Petitioner's Proposed Findings in Recommended Order No. 3:

1. Accepted and incorporated.

2-5. These paragraphs constitute proposed conclusions of law. As to Respondent's Proposed Findings:

1-5. Accepted and incorporated.

COPIES FURNISHED:

Joseph Bohren, Esquire 2507 Clark Road

Tampa, Florida 33618

Laura Gaffney, Senior Attorney Agency for Health Care

Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Douglas M. Cook, Director Agency for Health Care

Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome Hoffman, General Cousel Agency for Health Care

Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk AHCA

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 95-001847

Orders for Case No: 95-001847