On November 9, 2009, a formal administrative hearing was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: C. Erica White, Esquire
Quintairos, Prieto, Wood & Boyer, P.A.
The issue in this case is whether the Petitioner's application for certification by examination as a basic X-ray machine operator should be approved or denied.
By Notice of Intent to Deny, dated May 6, 2009, the Department of Health (Respondent) notified Eron D. McClendon (Petitioner) that his application for certification by examination as a basic X-ray machine operator had been denied. The Petitioner requested an administrative hearing to challenge the denial. The Respondent forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceedings.
On August 24, 2009, the previously assigned Administrative Law Judge (ALJ) granted the Respondent’s Motion for Leave to Amend the Notice of Intent to Deny, and an Amended Notice of Intent to Deny was filed on August 26, 2009.
The case was transferred to the undersigned ALJ on October 29, 2009.
At the hearing, the Petitioner presented the testimony of one witness, testified on his own behalf, and had two exhibits admitted into evidence. The Respondent presented the testimony of four witnesses and had Exhibits numbered 1-4 and 6-11 admitted into evidence.
The two-volume Transcript of the hearing was filed on November 30, 2009. Both parties filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.
In February 2009, the Petitioner submitted an application to the Respondent for certification by examination as a basic X-ray machine operator.
The application was submitted by “Ultimate Medical Academy” (UMA), where the Petitioner obtained his basic X-ray training, but the Petitioner provided the information contained therein and was responsible for the accuracy of the application.
On the Petitioner’s application, he stated that he was employed in “basic x-ray” at Palm Harbor MRI, and indicated that “100%” of his time at Palm Harbor MRI was related to duties other than radiography, nuclear medicine, or radiation therapy.
On February 19, 2009, the Respondent notified the Petitioner that the application was incomplete because it lacked a criminal history record from the Florida Department of Law Enforcement.
On April 14, 2009, the Respondent received the Petitioner’s criminal history record, which revealed convictions between the years 1993 and 2002, and related periods of incarceration, for retail theft, felony grand theft, felony uttering of forged checks, other forgeries, and failure to appear.
The Petitioner was also convicted of federal crimes, including possession of counterfeited checks in 2000 and felony uttering a forged check in 2002.
The Petitioner spent three years in federal prison and, in December of 2003, was transferred to a halfway house after his release. His most recent sentence included a probationary period that expired at the end of May of 2007.
As part of the application process, the Petitioner advised the Respondent that his civil rights had been restored on January 31, 2008. The Petitioner provided documentation to the Respondent that spelled his first name as “Erin.” For purposes of this Recommended Order, the restoration of civil rights has been deemed applicable to the Petitioner.
The Respondent reviewed the Petitioner’s application, including the criminal history and the restoration of civil rights, and denied the application because of the Petitioner’s criminal history.
The specific basis for the denial was the Respondent’s concern with the access an X-ray operator has to the personal belongings and medications of a patient while X-ray images are obtained, as well as to the personal and medical information contained within patient records.
After receiving the Respondent’s decision, the Petitioner requested an administrative hearing to challenge the denial.
After issuing the initial Notice of Intent to Deny, the Respondent became aware of potential issues related to the Petitioner’s employment during and after his training at UMA.
As part of his educational training, UMA placed the Petitioner into an externship at Palm Harbor MRI for a six-week period of clinical practice. The externship ended on April 4, 2008, when he graduated from the UMA.
The quality of the Petitioner’s job performance at Palm Harbor MRI is not at issue in this proceeding. There is no evidence that he was not competent to perform the tasks assigned to him during the externship.
On April 9, 2008, the Petitioner began working as a full-time employee at Palm Harbor MRI. He performed some customer contact duties, greeting patients and gathering information. His duties also included placing and positioning patients on the X-ray table, imputing the machine settings (“technique”) and operating the X-ray machine, including the administration of radiation to obtain the desired images.
Positioning patients for X-rays, machine technique, and operating the radiation equipment constitutes the practice of radiologic technology.
The Petitioner was supervised by a licensed technician at all times during his positioning of patients and operation of the machine. The Petitioner performed these duties without being properly licensed.
After the Respondent learned of the Petitioner’s job responsibilities at Palm Harbor MRI, the Respondent issued an
Amended Notice of Intent to Deny that identified the alleged unlicensed activity as an additional basis for denial of the application.
The Respondent also initiated a review of the Palm Harbor MRI facility’s operating procedures that was continuing at the time of the hearing.
The application information originally disclosed by the Petitioner was inaccurate because it failed to reveal that he was involved in performing radiography at Palm Harbor MRI.
In May 2009, the office manager at Palm Harbor MRI requested that the Petitioner provide a copy of his certificate, apparently unaware that the Petitioner had no license at that time. When he was unable to provide the certificate, his employment was terminated on May 18, 2009.
The Petitioner has asserted that he was exempt from licensure because he was a student attending St. Petersburg College (SPC) with the intention of being admitted to the SPC radiologic technology program, and ultimately to become licensed as a radiography technologist.
Students attending a medical school or “enrolled in and attending” a radiologic technology educational program are statutorily exempt from licensure during their educational period; however, there is no evidence that UMA students are entitled to the exemption.
Although SPC has a radiologic technology educational program, the Petitioner has neither been admitted to the program nor attended any classes within the program’s curriculum.
Additionally, Palm Harbor MRI is not an approved clinical training site for students enrolled in and attending the SPC radiography program.
The Petitioner had not applied to the SPC radiography program prior to termination of his employment from Palm Harbor MRI, and the applications subsequently submitted by the Petitioner for application to the SPC radiography program were denied.
There was no credible evidence presented at the hearing that the Petitioner was a medical student or was enrolled in and attending a radiologic technology educational program at any time relevant to this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).
The Petitioner has the burden of establishing by a preponderance of the evidence that he is entitled to approval of his application for certification as a basic X-ray machine operator. Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department
of Health and Rehabilitative Services, 348 So. 2d 349 (1st DCA 1977). In this case, the burden has not been met.
Section 468.304, Florida Statutes (2008), requires that an applicant for certification as a basic X-ray machine operator submit “satisfactory evidence” that the applicant “is of good moral character.”
The Petitioner has failed to submit satisfactory evidence that he is of good moral character. The Petitioner engaged in almost ten years of criminal activity for which he was incarcerated in jail and in federal prison. The Petitioner’s most recent probationary period expired in May 2007, just over two years prior to the hearing. While the Petitioner appeared intent on making better and more appropriate life decisions, the evidence of rehabilitation was scant and the period of time without the structure of institutional control was insufficient at this time to establish good moral character, given the nature and extent of the Petitioner’s previous criminal activity.
Additionally, Section 468.304, Florida Statutes (2008), provides, in relevant part, as follows:
The department may not certify any applicant who has committed an offense that would constitute a violation of any of the provisions of s. 468.3101 or the rules adopted thereunder if the applicant had been certified by the department at the time of the offense.
Section 468.3101, Florida Statutes (2008), provides, in relevant part, as follows:
468.3101 Disciplinary grounds and actions.-
The department may make or require to be made any investigations, inspections, evaluations, and tests, and require the submission of any documents and statements, which it considers necessary to determine whether a violation of this part has occurred. The following acts shall be grounds for disciplinary action as set forth in this section:
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(c) Being convicted or found guilty, regardless of adjudication, in any jurisdiction of a crime that directly relates to the practice of radiologic technology or to the performance of the duties of a radiologist assistant, or to the ability to practice radiologic technology or the ability to perform the duties of a radiologist assistant. Pleading nolo contendere shall be considered a conviction for the purpose of this provision.
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(f) Engaging in unprofessional conduct, which includes, but is not limited to, any departure from, or the failure to conform to, the standards of practice of radiologic technology or the standards of practice for radiologist assistants as established by the department, in which case actual injury need not be established.
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Violating any provision of this part, any rule of the department, or any lawful order of the department previously entered
in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.
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Employing, for the purpose of applying ionizing radiation or otherwise practicing radiologic technology or performing the duties of a radiologist assistant on a human being, any individual who is not certified under the provisions of this part.
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(m) Having been found guilty of, regardless of adjudication, or pleading guilty or nolo contendere to, any offense prohibited under
s. 435.03 or under any similar statute of another jurisdiction.
Although there is no evidence that the Petitioner has been convicted or found guilty of a crime that directly relates to the practice of radiologic technology or the performance of the duties of a radiologist assistant, the Petitioner’s criminal history included felony-level convictions for theft that adversely affect his ability to perform such employment. The potential issues presented by a radiologic technician or assistant with access to a patient’s personal possessions during the time a test is being performed, as well as access to the personal and medical information contained within patient records, is clear. The Petitioner has violated Section 468.3101(1)(c), Florida Statutes (2008), and pursuant to Section 468.304, Florida Statutes (2008), the Respondent may not certify
the Petitioner.
The evidence established that by engaging in the practice of radiologic technology without proper certification, the Petitioner engaged in unprofessional conduct. The Petitioner testified that he performed “positioning” and “technique” activities while employed at Palm Harbor MRI and operated the X-ray machine to obtain patient images. Florida Administrative Code Rule 64E-3.002(9) defines the practice of radiologic technology as “the performance of activities requiring special knowledge and skills, including positioning, technique, safe operation of radiation equipment and radiation protection.” Positioning is defined at Florida Administrative Code Rule 64E-3.002(5) as the “correct placement of the human body part to the image detector or radiation source, and the correct alignment of the radiation equipment to the landmarks of the body, and the major anatomical structures.” Technique is defined at Florida Administrative Code Rule 64E-3.002(7) as “the equipment setting and procedure protocol used to produce a diagnostic image or to accomplish the desired results.”
Pursuant to Section 468.304, Florida Statutes (2008), the Respondent may not certify the Petitioner due to the violation of Section 468.3101(1)(f), Florida Statutes (2008).
Further, Section 468.302(1), Florida Statutes (2008), prohibits the use of radiation or the practice of radiologic
technology or the performance of “any of the duties of a radiologist assistant on a human being” without being properly licensed. Section 468.311(1), Florida Statutes (2008), provides that such practice constitutes a second-degree misdemeanor.
There is no credible evidence that the Petitioner was exempt from license or certification requirements. By violating Section 468.302(1), Florida Statutes (2008), the Petitioner violated Section 468.3101(1)(i), Florida Statutes (2008).
Pursuant to Section 468.304, Florida Statutes (2008), the Respondent may not certify the Petitioner.
The evidence fails to establish that the Petitioner has violated Section 468.3101(1)(j), Florida Statutes (2008).
The Petitioner’s criminal history includes felony theft violations of Chapter 812, Florida Statutes, that are included within the offenses listed at Section 435.03, Florida Statutes, and accordingly, the Petitioner has violated Section 468.3101(1)(m), Florida Statutes (2008). Pursuant to Section 468.304, Florida Statutes (2008), the Respondent may not certify the Petitioner.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying the Petitioner's application for certification by examination as a basic X-ray machine operator.
DONE AND ENTERED this 29th day of December, 2009, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2009.
C. Erica White, Esquire
Quintairos, Prieto, Wood & Boyer, P.A.
Josefina M. Tamayo, General Counsel Department of Health
Dr. Ana M. Viamonte Ros, Secretary State Surgeon General
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.
