STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY OF BRIDGEPORT, )

)

Petitioner, )

)

vs. ) Case No. 01-4389

)

DEPARTMENT OF HEALTH, ) BOARD OF CHIROPRACTIC MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 17, 2002, in Tallahassee, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Paul Powers, D.C.

Qualified Representative University of Bridgeport Post Office Box 15

Rocky Hill, Connecticut 06067

For Respondent: Donna Erlich, Assistant General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner’s application for continuing education course approval should be granted by the Board of Chiropractic Medicine.

PRELIMINARY STATEMENT

On July 24, 2001, Petitioner submitted an application for continuing education course approval for ChiroCredit.com. The application was determined to be complete on August 22, 2001. On October 9, 2001, the Board of Chiropractic Medicine (the Board) issued a Notice of Intent to Deny Application for Continuing Education Course Approval.

Petitioner disputed the Notice of Intent to Deny Application and filed a Petition for hearing involving disputed issues of material fact. The Petition was forwarded to the Division of Administrative Hearings on or about November 8, 2001. A formal hearing was scheduled for January 17, 2002.

Petitioner requested that Paul Powers, D.C., appear as Petitioner's Qualified Representative. An Order dated December 14, 2001, authorized Paul Powers, D.C., to appear as Petitioner's Qualified Representative in this case.

At the hearing, Petitioner presented testimony of two witnesses, Stephanie Baxley and Joseph Boyle, D.C. Petitioner’s Exhibits numbered 1-6 and 8, including the deposition transcript of Terry Heller, Ph.D., were admitted into evidence.

Petitioner's Exhibit number 7 was rejected. Respondent presented the testimony of two witnesses, Sharon Guilford and Vicki Grant. Respondent’s Exhibits numbered 1-3, including the

deposition transcript of David Brown, D.C., were admitted into evidence.

A transcript consisting of one volume was filed on February 4, 2002. Proposed Recommended Orders were determined to be due 15 days after the filing of the Transcript. The parties timely filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Board of Chiropractic Medicine, is the state agency responsible for the licensure and regulation of chiropractic medicine in the State of Florida. Section 456.013(6) and Chapter 460, Florida Statutes. The Board has the responsibility to approve continuing education courses sponsored by chiropractic colleges. Section 460.408, Florida Statutes.

2. Continuing education providers established through medical osteopathic or chiropractic colleges send their initial courses to the Board for approval. Ordinarily, once the course is approved they become an approved provider and do not send subsequent continuing courses to the Board for approval. Petitioner is an approved continuing education course provider.

3. On July 24, 2001, Petitioner submitted an application of an online course to the Board for approval. The submitted course, ChiroCredit.com, is a 13-hour course consisting of nine

   regular hours, two HIV/AIDS hours, and two risk management hours.

4. With the application, Petitioner submitted a letter dated July 19, 2001, by Drs. Richard Saporito and Paul Powers, Petitioner’s representative. The letter requested the Board “to review the issue of acceptance of distance based online education credits for Chiropractors continuing education requirements in the State of Florida.”

5. On August 22, 2001, Stephanie Baxley, Regulatory Specialist for the Board, sent a memorandum to Dr. Gene Jenkins, D.C., chair of the Continuing Education Committee, requesting continuing education review. Dr. Jenkins signed and marked the memorandum "approved" on August 29, 2001. On the same date, Dr. Jenkins also indicated approval of an online course offered by another provider, Logan College. Ms. Baxley wrote to

   Dr. Richard Saporito notifying him that ChiroCredit.com had been approved for continuing education credit.

6. Vicki Grant is a programs operations administrator with the Department of Health. Her responsibilities include managing the licensing and discipline of four professions, including chiropractic medicine. Ms. Grant received a phone call from Dr. Jenkins who informed her that he had made a mistake by indicating approval of the online course offered by Petitioner. In response to his inquiry as to how to proceed, she advised him

   to notify the continuing education staff, tell them he had made a mistake, and ask that the matter be presented to the full board. She also spoke to Sharon Guilford regarding the matter. Ms. Guilford is Ms. Baxley's supervisor.

7. Sharon Guilford is a program operations administrator with the Department of Health. One of her responsibilities is serving as the administrator for the continuing education section that consists of six professions, including chiropractic medicine. Ms. Guilford and Ms. Grant spoke about Dr. Jenkins' phone call. On September 11, 2001, Ms. Guilford wrote a note on a copy of the August 29, 2001 letter from Ms. Baxley to

   Dr. Saporito that stated as follows: "Per Dr. Jenkins-course should've never been approved. Send letter correcting the error of approval."

8. On September 11, 2001, Ms. Baxley sent a letter to

   
   

   Dr. Saporito advising him that the approval letter of August 29, 2001, was sent in error and that the Board would take up the matter at their October 2001 meeting.1/

9. The Board did address the matter at their October 1, 2001 meeting which was held via teleconference. Dr. Saporito and Dr. Paul Powers spoke to the Board on behalf of Petitioner. During the last part of the Board's consideration of this matter, various board members expressed concern that the Board did not have enough information to vote for an approval of the

   course and discussed having an opportunity to receive more information. After much discussion, the Board unanimously voted to deny Petitioner's application for approval of the course for continuing education purposes. At the same meeting, the Board also denied an application of Logan College to provide continuing education via an online course.

10. The Notice of Intent to Deny states the grounds for denial:

    As grounds for denial, the Board found that the course did not meet the requirements of Florida Administrative Code Rule 64B2-

    13.004. Specifically, the rule does not contemplate the awarding of credit for virtual courses or those taken online by use of a computer. The Board opined that 'classroom hours' as used in the rule means in-person education and not time spent in front of a computer. The course offered by the applicant is an online offering. Additionally, the Board expressed concerns about the educational merit and security protocols used by online course providers, but welcomes more information regarding these topics.

    
    

11. The Board has never approved an online, homestudy, or video-taped presentation for continuing education course credit. The courses presented to the Board by Petitioner and Logan College were the first online courses to be presented for Board approval.

12. The Board interprets its applicable rule, which requires each licensee to obtain 40 classroom hours of

    continuing education, to require live and in-person classroom hours.

13. Petitioner offered the testimony of two expert witnesses, Dr. Terry Heller and Dr. Joseph Boyle. Dr. Heller has knowledge regarding theories of learning and education, but lacks knowledge about chiropractors, chiropractic education, or chiropractic continuing education and does not appear to be very familiar with Petitioner’s particular online course.

14. Dr. Boyle is familiar with both chiropractic continuing education and Petitioner's course. He disagrees with the Board's interpretation that the term "classroom hours" must mean a lecture or live format. However, Dr. Boyle described the broadest definition of "classroom" to be "anywhere, anyplace, at any pace, anytime." He acknowledged that the Board could set up criteria for online courses that differ from the criteria for traditional classrooms.

15. Respondent’s expert witness, Dr. David Brown, noted that most chiropractors practice in isolation and very few have staff privileges at hospitals. In his opinion, a legitimate policy reason for requiring chiropractors to obtain a certain amount of in-person continuing education is that they can “rub shoulders with their peers” and learn from one another.

    Dr. Brown noted that many states impose restrictions on the

    number of online hours that may be taken or on the type of licensees who are eligible to receive credit.

16. Dr. Brown interpreted the word "classroom" within the context of the rule containing the requirement of 40 classroom hours of continuing education to mean ". . . to physically sit in a room, in a classroom type environment which could be an auditorium or some other environment, with your peers who are also taking the class in order to obtain course credit. I think that's a traditional type of view." Dr. Brown's interpretation of "classroom" within the context of the Board's rule is more persuasive than those of Petitioner's experts.

    CONCLUSIONS OF LAW

    
    

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

18. The Petitioner seeks Board approval of a continuing education course. Accordingly, as the party asserting the affirmative of the issue, Petitioner has the burden of proving by a preponderance of the evidence that the Board should have approved the continuing education course. Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981); Section 120.57(1)(j), Florida Statutes. In this case, the burden has not been met.

19. Subsection 456.013(6), Florida Statutes, governs continuing education for all the health care boards under the Department of Health, and reads in pertinent part:

    As a condition of renewal of a license, the Board of Medicine, the Board of Osteopathic Medicine, the Board of Chiropractic Medicine, and the Board of Podiatric Medicine shall each require licensees which they respectively regulate to periodically demonstrate their professional competency by completing at least 40 hours of continuing education every 2 years. The boards may require by rule that up to 1 hour of the required 40 or more hours be in the area of risk management or cost containment. This provision shall not be construed to limit the number of hours that a licensee may obtain in risk management or cost containment to be credited toward satisfying the 40 or more required hours. This provision shall not be construed to require the boards to impose any requirement on licensees except for the completion of at least 40 hours of continuing education every

    2 years. Each of such boards shall determine whether any specific continuing education requirements not otherwise mandated by law shall be mandated and shall approve criteria for, and the content of, any continuing education mandated by such board. . . .

    (emphasis added)

    
    

20. Subsection 456.013, Florida Statutes, clearly requires the Board of Chiropractic Medicine to approve criteria for and the content of any continuing education which it mandates.

21. Subsection 460.408(1)(a), Florida Statutes, in pertinent part provides that “[c]ontinuing education courses sponsored by chiropractic colleges whose graduates are eligible for examination . . . shall be approved by the board if all

    other requirements of board rules setting forth criteria for course approval are met.”

22. The Board’s continuing education rule reads in pertinent part:

    64B2-13.004 Continuing Education.

    
    

    1. For the purpose of renewing or reactivating a license, an applicant must demonstrate to the Board that he or she participated in at least forty (40) classroom hours of continuing chiropractic education, during all bienniums during which the license was inactive, or for purposes of renewal during the past two years, of which at least one (1) hour concerned risk management and at least two (2) hours concerned the laws and rules of the board and the regulatory agency under which the Board operates. For the purpose of this rule, risk management means the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing or eliminating identifiable risks. The laws and rules of the Board and the regulatory agency under which the Board operates include Chapters 456 and 460, Florida Statutes, and Rule Chapter 64B2, F.A.C.

       
       

    2. Only those classroom hours earned at Board approved continuing education programs or under the provisions of this rule will be acceptable.

       
       

    3. Continuing education providers, including providers of AIDS and risk management, seeking initial approval by the Board shall pay a fee of $250. Continuing education providers seeking renewal of provider status shall also pay a $250 fee each biennium. To receive Board approval, a continuing education program:

       1. Should be submitted for the Board’s approval prior to the date of the scheduled presentation;

          
          

       2. Must be offered for the purpose of keeping the licensee apprised of advancements and new developments in at least two of the following areas: . . . .

          [listed]

          
          

       3. Shall have its sponsor submit to the Board at least the following:

          
          

          1. A detailed course outline or syllabus, including such items as method of instruction, testing materials, if any; and

             
             

          2. A current curriculum vitae of each speaker or lecturer appearing in the program; and

             
             

          3. The procedure to be used for recording attendance of those attendees seeking to apply for continuing education credit and the procedure for certification by the program’s registrar of attendance to be submitted to the Board as verification;

          
          

       4. Shall be taught by one or more speakers or lecturers with at least one of the following qualifications:

          
          

          1. A faculty level instructor of a chiropractic college or school . . .; or

             
             

          2. A post-graduate level instructor of a chiropractic college or school maintaining a standard and reputability approved by the Board, or a post-graduate level instructor at a medical or osteopathic college or a university which college or university is accredited by, or has status with, an agency or its successor which is recognized and approved by the United States Office of Education or the Council on Post Secondary Accreditation.

    4. When attending an approved program, a licensee must sign in and out each day and his or her attendance must be certified by the program’s registrar and submitted to the Board as verification.

       
       

    5. Out of State licensees may satisfy the requirement of continuing education in the laws and rules of the Board ... by certifying that they have obtained and read a copy of Chapters 456 and 460, Florida Statutes, and Rule Chapter 64B2, F.A.C. A copy of said laws and rules may be obtained from the Board Office.

       
       

    6. Hours completed to satisfy the requirements of Rule 64B2-11.012, F.A.C., [acupuncture certification] shall satisfy the requirements of this Rule.

       
       

    7. Subsequent to the renewal or reactivation period of a license, the Board may perform random audits of licensees for verification of attendance at programs indicated for CE credit on their reporting forms.

       
       

    8. Five hours of continuing chiropractic education in the subject area of risk management may be obtained by attending

       . . . a board meeting at which disciplinary hearings are conducted by the Board . . . in compliance with the following:

       
       

       1. The licensee must sign in with the Executive Director of the Board before the meeting day begins.

          
          

       2. The licensee must remain in continuous attendance.

          
          

       3. The licensee must sign out with the Executive Director of the Board at the end of the meeting day or at such other earlier time as affirmatively authorized by the Board. . . .

    9. A member of the Board . . ., or a previous member serving in a probable cause panel, may obtain five (5) hours of continuing chiropractic education in . . . risk management for attendance at one Board meeting or probable cause panel. The maximum CE hours allowable per biennium under this paragraph shall be ten (10).

       
       

    10. In addition to the . . . above, any volunteer expert witness . . ., shall receive five (5) hours of credit in the area of risk management for each case reviewed up to a maximum of ten (10) hours per biennium.

        . . . (emphasis added).

        
        

23. As written, Rule 64B2-13.004, Florida Administrative Code, does not reference online continuing education classes. It references "classroom hours." Moreover, it references procedures for recording attendance by the program's registrar, and a requirement that the course be taught by speakers and lectures with certain qualifications. When read as a whole, the rule contemplates "classroom" in the ordinary sense.

24. The parties' experts hold different views as to the meaning of the word "classroom." No definition of the word "classroom" appears in the applicable statutes. Thus, the common ordinary meaning applies. Amisub v. Department of Health and Rehabilitative Services, 577 So. 2d 648 (Fla. 1st DCA 1991), citing Shell Harbor Group, Inc., v. Department of Business Regulation, 487 So. 2d 1141, 1142 (Fla. 1st DCA 1986). Webster's New College Dictionary (1999), defines classroom as "a room in which classes meet."

25. Unless unrelated to the functions of the agency, the courts generally defer to an agency’s interpretation of its own statutes and rules. Chiles v. Department of State, 711 So. 2d 151, 155 (Fla. 1st DCA 1998). The agency's interpretation is usually accorded substantial deference unless the interpretation is clearly erroneous. Pan American Word Airways v. Fla. Public

    Service Commission, 427 So. 2d 716 (Fla. 1983).

    
    

26. In Board of Podiatric Medicine v. Florida Medical Association, 779 So. 2d 658 (Fla. 1st DCA 2001), the Court held that the board had the authority to define the terms “human leg” and “surgical treatment” as they relate to the practice of podiatry. Similarly, Respondent Board has the authority to define the term “classroom hours” as it relates to setting the continuing education criteria for chiropractic course providers.

27. In this instance, Respondent Board's position that it may not approve any online courses under its continuing education rule as currently written is not clearly erroneous and is reasonable.

28. The Board possesses special knowledge and expertise regarding continuing education and the practice of chiropractic medicine.

29. Petitioner's reliance on Chapters 228 and 241, Florida Statutes, is misplaced. These statutes expressly apply to public schools and public education and reference agencies with

no authority over the Board, its functions, or its responsibilities regarding continuing education. In any event, the Legislature's approval of specific distance learning mechanisms in Chapters 228 and 241, Florida Statutes, does not overcome the express intent of the Legislature giving the Board authority to approve criteria for and the content of continuing education courses pursuant to Section 456.013(6), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered denying Petitioner’s application for continuing education course approval.2/

DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002.

ENDNOTES

1/ At hearing, Petitioner's Qualified Representative stated that they were not at hearing to challenge the approval in error, but were at hearing regarding the definition of "classroom hours" as defined by the Board.

2/ The Board's discussion at its October 1, 2001 meeting left the door open for further consideration as to whether and within what parameters online continuing education courses may or may not be approved.

COPIES FURNISHED:

Paul Powers, D.C. Qualified Representative University of Bridgeport Post Office Box 15

Rocky Hill, Connecticut 06067

Donna Erlich, Assistant General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 01-004389

Orders for Case No: 01-004389