The Issue Whether the Petitioner has met the requirements for licensure as a medical doctor in the State of Florida set forth in Section 458.311(1)(f), Florida Statutes (1986 Supp.), as required by Section 458.313(1), Florida Statutes (1986 Supp.)?
Findings Of Fact The Petitioner applied for licensure by endorsement as a medical doctor in Florida in September of 1986. Following notification by the Respondent that additional materials were required to complete the Petitioner's application, the Petitioner timely submitted the materials. In March of 1987, the Petitioner appeared before the Foreign Medical Graduate Committee of the Respondent. On April 5, 1987, the Respondent entered an Order titled Notice of Intent to Deny the Application for Licensure by Endorsement of Hien B. Nguyen. The stated basis for the denial of the Petitioner's application was that the Petitioner had failed to demonstrate that he graduated from a medical school. The Petitioner began medical school in 1967 at the University of Saigon, Faculty of Medicine, in Saigon, Republic of Vietnam. The Petitioner Successfully completed the six years required course work in medicine at the University of Saigon, Faculty of Medicine, in 1974. Following the completion of the course work required to earn a medical degree at the University of Saigon, Faculty of Medicine, the Petitioner was drafted into the Republic of Vietnam's military. He attended training for approximately six months immediately following the completion of his medical degree course work. The Petitioner was required to complete a thesis before being eligible for a medical degree from the University of Saigon, Faculty of Medicine. Upon completion of military training, the Petitioner commenced and completed work on his thesis. The Petitioner's thesis consisted of a translation of "Central Nervous Disease in Children," of Nelson's Pediatric Textbook, from English into Vietnamese. The Petitioner presented his thesis on April 14, 1975. Thuc R. Bach, M.D. attended the presentation of his wife's thesis on April 14, 1975, and witnessed the Petitioner's thesis presentation. The Petitioner was awarded a Certificate from the University of Saigon, Faculty of Medicine, on April 14, 1975, which indicated that the Petitioner had completed work necessary to be awarded a medical degree. The Certificate was issued temporarily. After approximately five years the Petitioner was required to return the Certificate at which time he could be issued an official diploma. On approximately April 30, 1975, the government of the Republic of Vietnam fell to the army of North Vietnam. Following the fall of the Republic of Vietnam, the Petitioner was confined to a concentration camp where the Petitioner acted as camp doctor. Following the Petitioner's release from confinement in 1976, the Petitioner worked as a physician at Saint Paul Clinic in Saigon until 1979. From 1977 until 1980 the Petitioner also attended and taught at a medical training center in Saigon. In October, 1980, the Petitioner escaped from Vietnam. He resided in Galang, Indonesia until March, 1981, when he moved to the United States. The Petitioner has completed the following since his arrival in the United States: December, 1981: Sat for the Federation Licensing Examination and was subsequently certified by the Federation of State Medical Boards; January 24, 1983: Certified by the Educational Commission for Foreign Medical Graduates; July, 1984 - June, 1985: Interned at the Cook County Hospital, Chicago, Illinois; July, 1985 - June, 1987: Residency program at Cook County Hospital, and February 19, 1986: Licensed as a physician by the State of Illinois (the license is currently active and unrestricted). The Petitioner was presented with a certificate from the Faculty- Council-in-Exile of the Faculty of Medicine of the University of Saigon dated April 20, 1981. The certificate affirms that the Petitioner "Successfully completed the course of study leading to the degree of Doctor of Medicine..." The certificate is signed by the Dean Emeritus of the University and Dao Huu Anh, M.D., Associate Dean of the University. Prior to the fall of the government of the Republic of Vietnam, graduates of the University of Saigon, Faculty of Medicine, were presented with a certificate authorizing them to practice as a physician without restriction upon completion of the required courses of study and a thesis. Graduates were not issued an Official Diploma until five years had passed since the issuance of their certificate. Although the Petitioner completed the required courses of study, presented his thesis and received a certificate authorizing him to practice as a physician, the Petitioner was not able to obtain an Official Diploma five years later because of the fall of the government of the Republic of Vietnam. In light of the fall of the government of the Republic of Vietnam, it is doubtful that the records of the University of Saigon, Faculty of Medicine are available or that the Petitioner could obtain an Official Diploma. The Petitioner is a graduate of the University of Saigon, Faculty of Medicine, a medical school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's application for licensure by endorsement as a medical doctor in the State of Florida. DONE AND ORDERED this 25th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2969 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 5. 5 6. 6 7-10. 7 11-12. 13. The Petitioner worked at the training center from 1977 through 1980. 15. The Petitioner went from Vietnam to Indonesia in October of 1980. He did not travel to the United States until March of 1981. 10-12 Cummulative, summary of the evidence and unnecessary. Dr. Nghia Van Tran's letter was not accepted into evidence. 13 16. The last sentence is cummulative, a summary of evidence and unnecessary. The footnote is irrelevant. The burden of proof in this proceeding was on the Petitioner. The Respondent is not required to verify the signature of Dr. Dao. 14 10 and 17. 15 17-18. 16-18 Cummulative, summary of the evidence and unnecessary. The Respondent's Proposed Findings of Fact 1 1 and 3. 2-5 The Respondent's remaining proposed findings of fact are essentially summaries of the Respondent's inter- pretation of the evidence and argument concerning the evidence. The Respondent's interpretation of the evidence is rejected. The following is a brief discussion of why the Respondent's arguments have been rejected. The first two sentences are true and support the finding of fact that the Petitioner began medical school in 1967, completed his course work in 1974 and presented his thesis in April of 1975. See findings of fact 4-5 and 9. The third and fourth sentences are true but the Respondent has overlooked the fact that the Petitioner presented other evidence which supports his position. Therefore, even if the fifth sentence were correct, there is other evidence which supports findings of fact 4-5 and 9. The sixth sentence is irrelevant. Although the Board may have raised a question, the correct answer to that question is a matter of proof. The seventh sentence is true but irrelevant. The eighth sentence is not supported by the weight of the evidence. There was no testimony sufficient to support any finding of fact concerning Dr. Dao's signature on any document. Although the ninth sentence is correct, the weight of the evidence does not support the alleged fact set out in the tenth sentence. The eleventh sentence was taken into account in the weight given to Dr. Dao's statement. Although the twelfth sentence is correct the thirteenth and fourteenth sentences are not supported by the weight of the evidence. While it is true that the Petitioner's testimony with regard to when he completed his course work at the University of Saigon was not totally consistent, the weight of the evidence supports a conclusion that the Petitioner finished his course work in June of 1974. The Petitioner's explanation concerning the inconsistency in his testimony was credible. The first and second sentences are true. The third sentence is true but overlooks the fact that it corroborates non-hearsay evidence. The fourth sentence is law. The fifth sentence is true. The sixth and seventh sentences are true. The eight sentence is not supported by the weight of the evidence. The ninth and tenth sentences are true but they do not support the ultimate conclusion the Respondent suggests. It is possible that the Certificate in question could have been based upon other credible evidence. The first sentence is true. The second sentence is not supported by the weight of the evidence. The Petitioner testified that he completed his course work in 1974. The third sentence is true. The fourth and fifth sentences are not supported by the weight of the evidence. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams 420 First Florida Bank Building Post Office Box 6526 Tallahassee, Florida 32314 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue posed for decision herein is whether or not the Respondent is able to practice medicine with reasonable skill and safety to patients based on his mental condition. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence introduced, and the post-hearing memoranda, I hereby make the following:
Findings Of Fact By its Administrative Complaint filed herein dated July 2, 1982, Petitioner, Board of Medical Examiners, seeks to suspend, revoke or take other disciplinary action against the Respondent, Gordon Allen Genoe, as licensee and against his license as a physician under the laws of Florida, based on an alleged violation of Section 458.331(1)(s), Florida Statutes. Respondent is a physician and has been issued license No. ME0017002. The last known address of the Respondent is 1015 Southwest 9th Street, #F-2, Gainesville, Florida 32604 2/. Respondent suffers from a hi-polar, or manic depressive disorder, or possibly a borderline personality disorder, with a history of problems associated therewith which have been evident in an increasing fashion since birth. A manic depressive illness is an emotional or mental illness characterized by mood swings which leave such a person depressed. During the manic phase, that person is in lay terms, "high or accelerated" and displays a fast thinking process. He has been voluntarily admitted for psychiatric evaluation and treatment on numerous occasions for relatively short periods of time. On or about January 6, 1982, Judge Richard Miller, in and for the Circuit Court of Pinellas County, Florida, ordered that Respondent be admitted involuntarily to a mental health facility pursuant to Section 394.463(1)(b)1, Florida Statutes. The Order was based upon the sworn affidavit of three witnesses who swore to being witness to, or having knowledge of, aggressive, threatening, irrational, and unusual behavior on Respondent's part 3/. Following the entry of said Order, Respondent was admitted to Horizon Hospital in Clearwater, Florida, and was immediately discharged by the attending physician, Dr. Harry L. Sauers, a psychiatrist. At that time, Respondent represented to Dr. Sauers that he would immediately seek further psychiatric treatment at Goodwood Manor Psychiatric Center in Tallahassee, Florida. However, Respondent failed to submit himself to treatment at Goodwood Manor in Tallahassee. During July, 1982, Respondent made a serious attempt at suicide while under the care of Dr. Alfredo Hernandez, psychiatrist, and required emergency hospitalization and subsequent inpatient psychiatric treatment. Pursuant to an order of the Board of Medical Examiners, Respondent was examined by Sidney I. Holzberg, M.D., a psychiatrist. Dr. Holzberg, as did two other medical doctors trained in psychiatry, found that the Respondent suffers from either a bipolar, mixed mental disorder, or a personality disorder characterized as severe, either of which, when not under control, may seriously affect Respondent's ability to practice medicine consistently with reasonable skill and safety to patients. Dr. Holzberg's examination was conducted on November 4, 1982. At that time, Respondent presented himself as a calm and cooperative person whose mood was serious. There was no evidence of mental illness. Respondent's appearance was neat and he was able to intelligently comprehend questions and provide appropriate answers during that examination. At present, Respondent is receiving treatment from Dr. Hernandez for his mental condition and is being administered the drug lithium carbonate. Lithium carbonate is considered effective in the treatment and management of hi- polar disorders and has a success rate of between 60 and 80 percent, depending upon the phase of the mental condition that the patient is then suffering. Respondent appears to be in a state of remission from the symptoms of this chronic mental condition. Respondent has consented to continue ongoing treatment for his mental condition. Further, he has expressed a willingness to undergo reasonable detection and monitoring measures as required by the Petitioner. While the Respondent's mental disorder is under control, he poses no threat of danger to patients to the extent that he is actively practicing medicine. In this regard, Respondent has only practiced radiology for brief periods consisting of two temporary positions during the period 1980-1981. However, his license remains current and he may resume his practice of medicine at any time. Since 1981, to keep his knowledge of radiology and nuclear medicine current, Respondent reviews medical books and journals on a regular basis. Respondent's Educational Background Respondent has an exemplary educational background. He graduated in the top 2 percent of his high school graduating class. He attended his freshman year of college studies at Arizona State University where he received all A's with the exception of two B's in English. Respondent was highly sought after by college recruiters for graduate studies and from the Army for an appointment as a commissioned officer. After completing his freshman year at Arizona State University, Respondent transferred to Northwestern University (Illinois) and earned a grade point average of 3.4 out of a possible 4 points during his sophomore and junior years. Respondent was accepted in medical school at Northwestern after his junior year and earned sufficient credits during his first year in medical school to graduate from the undergraduate program at Northwestern. Respondent attended medical school at Northwestern University in Chicago. Respondent served an internship at Los Angeles County Hospital and completed two years of public health service. Following an appointment as a commissioned officer in the armed services, Respondent was accepted in the radiology program at the University of Chicago. He completed a two year residency in diagnostic and therapeutic radiology. That program is considered to be one of the leading radiology centers in the country. Following his residency, Respondent was appointed to the staff at the University of Chicago as a radiology instructor. In addition to his teaching duties, Respondent studied nuclear medicine, angiography research and wrote a scientific paper about the use of a technique called "bronchial brushing" in the diagnosis of various diseases such as lung cancer and infections. Respondent sat for and passed the medical licensure examination in Florida in 1971 on his first sitting. He thereafter joined the staff of University Medical Hospital in Jacksonville where he served as Chief of the Nuclear Medicine Department. While at University Hospital, Respondent was responsible for setting up the radiology department and instructed residents in phases of radiology, and more particularly nuclear medicine. Respondent also wrote a paper on the diagnosis of lung carcinoma utilizing the technique of bronchial brushing while at University Hospital. That paper was published in a major radiology journal. After serving two years at University Hospital, Respondent entered private practice at Doctors Hospital in Lake Worth, Florida. Respondent served as chief radiologist at Doctors Hospital. Respondent was also responsible for instituting both the radiology and nuclear medicine departments at Doctors Hospital. Respondent served in numerous positions at various hospitals, primarily in the south Florida area and based on contractual difficulties with professional associations (primarily financial in nature) Respondent became disenchanted with the practice of medicine and decided to pursue a career in law. Respondent has completed approximately two years of legal studies at the University of Florida and Stetson Law School.
Findings Of Fact This cause was scheduled for formal hearing to commence at 9:30 a.m. on August 19, 1996, by Notice of Hearing entered June 7, 1996. Although Respondent appeared for the formal hearing, Petitioner did not and no one appeared on Petitioner's behalf. The hearing was adjourned at 10:25 a.m. To date, Petitioner has made no contact and has filed no document or other pleading regarding Petitioner's failure to appear. As a result of Petitioner's failure to respond to Respondent's Request for Admissions, the following statements, inter alia, have been deemed admitted: Petitioner did not graduate from high school and does not have a graduation equivalency diploma (GED). Petitioner has not completed a Board- approved school-based ABHES program, a Board-approved laboratory-based training program with 400 hours in the specialty for which Petitioner seeks licensure plus a completed Board-approved general clinical laboratory course, or a medical licensed technician program accredited by CAHEA or CAAHEP or NAACLS. Petitioner has not completed coursework on HIV/AIDS.
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 licensure as a clinical laboratory technician. DONE and ENTERED this 23rd day of September, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 23rd day of September, 1996. COPIES FURNISHED: Diane Orcutt, Executive Director Agency for Health Care Administration Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Jose N. Gonzalez 12820 Southwest 43rd Drive Apartment 232D Miami, Florida 33175 Michael Mone, Esquire Office of the Attorney General The Capitol PL-01 Tallahassee, Florida 32399-1050
Findings Of Fact 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. 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. 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. 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.
Findings Of Fact By application dated July 20, 1995, Petitioner applied to Respondent for a Clinical Laboratory Supervisor's license. Petitioner has not earned a doctoral degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a masters degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a baccalaureate degree in medical technology, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does have a baccalaureate degree in business administration and has taken college level courses in biology, human anatomy and chemistry. Petitioner has demonstrated that she has five years of pertinent experience following receipt of the degree. Accompanying her application for licensure, Petitioner presented documentation that she completed an advanced clinical practicum as a Specialist in Blood Bank Technology in 1995 and has been certified by the national Board of Registry in Chicago, Illinois. Petitioner did submit an evaluation of her college transcript by a qualified staff member of the Board of Registry, Chicago, Illinois. Petitioner did not submit an evaluation of her college transcript by a Chairperson of a chemical or biological science department of a regionally accredited U. S. college or university. Petitioner did not file a motion for an extension of time in which to submit an evaluation of her college transcript prior to the expiration of the thirty day extension period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a Clinical Laboratory Supervisor. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 27th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-2187 Petitioner's proposed findings of fact. Petitioner did not submit proposed findings. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,4,5,6,7,8,9,10. Rejected as subsumed or irrelevant and immaterial: Paragraphs 2 (see Preliminary Statement) and 3 (see preliminary statement). COPIES FURNISHED: Lealand L. McCharen Assistant Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Diane Orcutt, Executive Director Board of Clinical Laboratory Personnel Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Mary Donna Lee, pro se 2544 Robert Trent Jones Drive Apartment Number 816 Orlando, Florida 32835
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. He applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology, histology, and chemistry (special). On March 25, 1980, Respondent denied Petitioner's application for technologist's license for the reason that Petitioner has not completed the sixty semester hours required by Section 10D-41.25(9), Florida Administrative Code. Petitioner holds a high school equivalency diploma. He has taken courses at Chicago City College, Southeast Junior College, Roosevelt University, Olive-Harvey, and the U.S. Army medical school. He is a graduate of the American Academy of Medical Technology; however, the Academy is not an accredited school. He holds a Medical Technologist`s Certificate from the Registry of the American Medical Technologists. He has been employed as a technologist for over twelve years, principally at Michael Reese Hospital and Medical Center, and is licensed as a medical technologist in the State of Illinois. Based upon his college transcripts, the Respondent has given Petitioner credit for forty-eight hours of academic work and as advised the Petitioner that he need obtain only twelve additional credits for satisfying educational requirements. An approved course of study is available to him at Miami-Dade Community College. Petitioner has not taken the U. S. Public Health Service proficiency examination in clinical laboratory technology.
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 a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 16th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Yehuda Weinbaum 536 Euclid Avenue Miami Beach, Florida 33139 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The agency presented the testimony of Martha Bass, who is an employee of HRS and works in that agency's section which licenses medical technologists and technicians. She testified that Mrs. Lucy Escalada had come to her office seeking information on licensure. While there, Mrs. Escalada had prepared an application for licensure as a medical technician with supporting documents which Mrs. Bass identified and which were received as Exhibit F. Mrs. Bass stated that on the day following Mrs. Escalada's visit she had found certain documents on the floors adjacent to where Mrs. Escalada had been sitting. Mrs. Bass identified Exhibits A, B, and C as the documents she had found. Exhibit A was identified as the original of a Registry Certificate from the American Society of Clinical Pathologists. Exhibit B was an apparent altered copy of certificates of high school completion. Copies of Exhibit A and B were attached to Mrs. Escalada's application. Mrs. Bass stated she had turned Exhibits A, B, and C over to the legal department of HRS who had sent them to the Florida department of Criminal Law Enforcement (FDCLE) crime laboratory for analysis. She further identified Exhibit D as the report which she received from FDCLE on Exhibits A, B. and C. Mrs. Bass testified that Mrs. Escalada had been written and advised that the documents supporting her application were unsuitable and that she would have to submit other proof of her completion of High school. This had not been done by Mrs. Escalada. The Hearing Officer has examined the Exhibits A, B, and C and, without reference to Exhibit D concludes that Exhibit B is an altered original of Exhibit A and that a photocopy of Exhibit B was attached to Exhibit F to prove Mrs. Escalada's completion of high school.
Recommendation The Hearing Officer having found that the document, Exhibit B, to be an altered copy of Exhibit A, and having further found that a photocopy oft Exhibit B was used to substantiate Mrs. Escalada's satisfactory completion of high school recommends that Mrs. Escalada's application be denied pending submission of appropriate documentation of her educational, background, and further that the temporary license issued Mrs. Escalada be revoked. DONE and ORDERED this 16th day of August, 1976, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barbara D. McPherson, Esquire Division of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida Mrs. Lucy M. Escalada 6110 S. W. 13th Terrace Miami, Florida 33144 also copy to: Mrs. Lucy M. Escalada at Manual Bocollao Apartado Postal #6-32 Guadalajara, Jalisco Mexico
Findings Of Fact Respondent holds a valid teaching certificate from the State of Florida, number 512951. Respondent's teaching certificate is valid through June 30, 1993. Respondent is certified to teach elementary education. Respondent is employed by the Dade County Public School Board (the "School Board"). Respondent was employed as a teacher at Palm Springs Elementary School in Dade County, Florida ("Palm Springs") for the school years 1989-1990 and 1990-1991. On or about April 30, 1991, Detective Michael Segarra, a police officer in Pembroke Pines, Florida, was investigating a bank robbery in that city at the site of the robbery. Respondent approached Detective Segarra and gave him relevant information concerning two men who may have committed the robbery. Respondent was riding in an automobile with two men who said they were going to rob a bank. Respondent was able to get out of the car by telling the two men that she wanted to go into a McDonald's restaurant across the street from the bank for some orange juice. The two men let her out of the car, and Respondent hid from them. They returned after the robbery was committed, searched without success for Respondent, and left. Respondent walked across the street and gave Detective Segarra the information she had. Based upon Respondent's unusual demeanor and behavior, Detective Segarra asked if he could inspect Respondent's purse. Respondent consented to the search, and Detective Segarra found nine small plastic bags of cocaine and a small cigarette with 20 grams or less of cannabis. Respondent admitted to Detective Segarra that she had used both controlled substances. Detective Segarra did not arrest Respondent at the time of the consent search because Respondent agreed to help him trace the source of the cocaine and the whereabouts of the two men during the previous day and a half. Detective Segarra questioned Respondent further at the police department, took her written statement, and then dropped her off at her residence. 5/ An Information was filed against Respondent on July 24, 1990, for possession of cocaine and cannabis. Respondent pled guilty to both charges on December 5, 1990. Adjudication of guilt was withheld. Respondent was ordered to pay a fine of $240 and placed on probation for two years. The terms of probation included random drug testing and regular drug evaluations. Respondent violated the terms of her probation by failing to timely pay her fine, by testing positive for cocaine, and by failing to report for regular drug evaluation. She was charged by affidavit dated February 15, 1991, with violating the terms of her probation. On April 5, 1991, Respondent pled guilty to violating her probation and to one count of possession of cocaine. Adjudication of guilt was again withheld, and her probation was revoked. Respondent was sentenced to two years of probation and required to complete a drug rehabilitation program at Mount Sinai Hospital. Respondent was removed from the classroom without pay sometime in August, 1990. She returned to the classroom in February, 1991, and was removed again without pay in April, 1991. Although Respondent has not returned to the classroom, the School Board never terminated her employment. She has remained on leave without pay for approximately a year and a half. 6/ Respondent is the first employee of the School Board to qualify for and participate in the Alternative Discipline Program (the "ADP"). The ADP is designed to rehabilitate employees with superior performance histories who have developed a chemical dependency and return them to the classroom as effective teachers. The program is adopted from a similar program developed at Mount Sinai Hospital for physicians with a chemical dependence. The ADP was developed in consultation with Dr. John Eustace, an addictionologist at Mount Sinai Hospital, and through the combined efforts of the School Board's Employee Assistance Program ("EAP"), the School Board's Office Of Professional Standards, and the United Teachers of Dade (the "UTD"). Respondent entered the ADP on August 15, 1991. The ADP is a two year program that places qualified employees with a chemical dependence on leave without pay. If the participant has no connection with a chemical substance for a period of two years, there is a very strong possibility of permanent recovery. Approximately 80 percent of the individuals who have no connection with a chemical substance for two years recover permanently. A participant in the ADP is not entitled to utilize hardship benefits or extra pay benefits while on leave without pay but retains other fringe benefits, including hospitalization. During his or her leave, the participant is hospitalized and receives medical treatment. The participant is required to live in a halfway house, then a three-quarter house, and then to participate in programs of recovery such as Alcoholics Anonymous ("AA") or Narcotics Anonymous ("NA"). If the participant completes that part of the program successfully, the participant is entitled to return to the classroom on a part time basis and then on a permanent basis subject to probation for a year or more. During probation, the participant's performance, attendance, and participation in a program of recovery is strictly monitored. The terms of probation require that the participant sign a letter of resignation and waiver of right to appeal any termination of employment if the participant fails to successfully complete the ADP. In order to participate in the ADP, an employee must enter into a written agreement in which he or she agrees to: participate in a drug screening program utilizing random urine and blood testing within 24 hours of notification; abstain from all mood altering substances, including alcohol, marijuana, crack/cocaine, over the counter preparations, stimulants, street drugs, and pharmaceuticals; participate in a structured chemical dependance program recommended by the EAP or designated program administrator; follow all recommendations of the treatment facility, including a residential long term treatment in a half-way house or other appropriate facility; participate in weekly aftercare upon completion of primary care at Mount Sinai Hospital; provide documentation of attendance at a minimum of five meetings a week at an appropriate program of recovery; obtain an AA or NA sponsor and complete a 12 step recovery program; encourage family members to attend their own 12 step support groups; utilize the comprehensive services available through EAP and the hospital for personal, physical, family, and stress related problems; seek part-time employment upon completion of the structured treatment program only with permission of the program; attend monthly monitoring conferences with a designated fitness supervisor, union representative, and EAP coordinator; and be responsible for all treatment fees not covered by insurance. A participant in the ADP further agrees to resign their employment and waive their right to appeal in the event the participant fails to successfully complete the terms of the ADP. Respondent is the first School Board employee to qualify for the ADP. Only teachers with good performance records qualify for the ADP. Prior to her substance abuse, Respondent had a good performance record. She was more than acceptable. She had very good performance evaluations and recommendations. Respondent executed the first written agreement utilized in the ADP. The written agreement executed by Respondent is substantially equivalent to but not identical to the form Settlement Agreement developed since Respondent entered the program. The form Settlement Agreement includes a letter of resignation which a participant must sign upon entering the ADP and which becomes effective immediately without appeal if the participant fails to complete the ADP successfully. Respondent has successfully completed the major portion of the ADP. She is currently eligible to return to the classroom as a substitute teacher for three days a week. If she successfully completes her part time employment, she will be eligible to return to full time teaching in August, 1992, on a probationary basis. Respondent will be required to execute a Settlement Agreement prior to returning to full time teaching on a probationary basis. Respondent, with the advice and consent of her attorney, agreed under oath during the formal hearing to immediately and voluntarily relinquish her teaching certificate if she failed to complete the remainder of the ADP. The ADP will not be successful if a participant has his or her teaching certificate revoked or suspended prior to completion of the program. Full time teaching on a probationary period for at least one year is an integral part of the ADP. If the participant has his or her teaching certificate revoked or suspended, he or she cannot complete the full time probationary phase of the ADP. Revocation of Respondent's teaching certificate would cause her to lose her continuing contract status. If she obtained a teaching certificate following revocation, she would be required sign an annual contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of violating Section 231.28(1)(e), Florida Statutes, and that Respondent be placed on probation pursuant to Section 231.262(6)(d), Florida Statutes. It is further recommended that the terms and conditions of Respondent's probation should be the same terms and conditions as those prescribed in the agreement entered into between Respondent and the Employee Assistance Program when Respondent entered the Alternative Discipline Program (the "ADP") and any additional terms and conditions contained in the Settlement Agreement Respondent will be required to enter into upon resumption of full time employment. As a further condition of probation, it is recommended that Respondent be required to successfully complete the ADP and, in the event Respondent fails to do so, voluntarily and immediately resign her employment from the Dade County School Board and surrender her teaching certificate to Petitioner. RECOMMENDED this 19th of February 1992, in Tallahassee, Florida. DANIEL MANRY 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 19th day of February 1992.
The Issue The central issue in this case is whether Petitioner should be granted additional credit for the responses given during his practical examination for licensure which was conducted during November, 1991, and for which Petitioner entered this challenge.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner, David Sanders, is a candidate for chiropractic licensure. His candidate for licensure number is 200142, and he took the November, 1991, practical examination administered by the Department. Petitioner received a score of 64.0 on the practical examination. Petitioner's score fell below the minimum score for passing, 75.0. Petitioner timely challenged the examination results and claimed that the Department had incorrectly graded Petitioner's responses and performance during the examination. In this case, the practical examination was administered by two examiners who, independently of one another, scored the responses given by Petitioner when presented with two case studies. For Case 1, the scoring was divided into fourteen sections or subsections where the candidate was evaluated and given points based upon the responses given. For the orthopedics section of Case 1, the Petitioner was given a scenario of facts from which he was to determine the appropriate tests to be administered to the patient. Following selection of the tests to be given, Petitioner was required to perform the test. For an inappropriate test, no points were awarded, even if the candidate performed the test correctly. Of the nine tests listed, four were to be chosen and performed. One point was awarded for each appropriate test correctly performed. In response to the orthopedics section, Petitioner selected three appropriate tests to perform. Consequently, the maximum grade, per examiner, he could have received was a score of three. Petitioner received a score of two from one examiner, and a three from the other. The first examiner commented that the Yeomans test was wrong. Since Yeomans was an appropriate test to perform, and Petitioner correctly performed the test, Petitioner should have received a three on that section from that examiner. Under the neurological subsections of Case 1, Petitioner was required to identify, based upon the fact scenario given, four muscles which should be examined and tested. Petitioner only identified three relevant muscles. Consequently, he received a score of three from each examiner. The scoring on this subsection was correct. Under subsection 8 of the neurological portion Petitioner received no credit as he failed to select three appropriate tests and correctly interpret the responses. Accordingly, the scoring on this subsection was correct. The final subsection of the neurological portion was the diagnosis rendered based upon all the findings of the scenario and test results. Since Petitioner rendered an inappropriate diagnosis, no points were awarded. The scoring on this subsection was correct. Case 2 of the physical examination contained nine sections or subsections for which Petitioner could have received credit. The first section of Case 2 required Petitioner to obtain a history from the patient. To achieve a perfect score on this section, the candidate had to inquire into seven or more areas of relevant history. If so, the score for the section would be a four. In this case, Petitioner should have received a four from both examiners regarding the history taken. As it was, Petitioner only received a three from the examiners. In order to receive credit on the physical-selection portion of the test, Petitioner was required to auscultate the heart and lungs, and purcuss the chest. Since he failed to do so, the scoring on this subsection was correct. In connection with subsections 18 and 19 of Case 2, Petitioner failed to receive full credit because he did not indicate an appropriate laboratory test. Had Petitioner requested a SMAC test, full credit would have been given for both subsections. As it was, because Petitioner failed to request a SMAC test, he could not receive credit on either subsection. The scoring on these subsections was correct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Chiropractic Examiners enter a final order changing Petitioner's score on the November, 1991, physical examination as noted above in order to recalculate and determine whether or not Petitioner failed the examination through no fault of his own. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1992. APPENDIX TO CASE NO. 92-2709 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: With regard to paragraph 1, with the deletion of the words "on physical diagnosis" in sentence 1, the paragraph is accepted. Paragraph 2 is accepted. Paragraph 3 is rejected as contrary to the weight of the evidence. Paragraph 4 is accepted. Paragraphs 5 through 9 are accepted. COPIES FURNISHED: David Sanders 359 Glenwood Avenue Satellite Beach, Florida 32937 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Chiropractic Examiners 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact On March 17, 1977, the Petitioner, Rosa M. Richardson, made application with the State of Florida, Department of Health and Rehabilitative Services, to become a licensed clinical laboratory technologist. After reviewing the application of the Petitioner, the application was rejected by the Respondent. The rejection was made in the form of a letter addressed to the Petitioner, that letter being dated April 12, 1977, and appearing in the record as Joint Exhibit #2 by the parties. Basis for the denial of the license application was the allegation by the Respondent that the Petitioner had failed to have 60 semester hours of academic study as required by Section 10D-41.25(9), Florida Administrative Code. Subsequently, by a pleading entitled Amendment to Notice of Denial of License, the Respondent indicated that it recommended the rejection of the license application on the additional ground that the Petitioner failed to have four years of pertinent experience in an approved laboratory, again under the provisions of Section 10D-41.25(9), Florida Administrative Code. The Petitioner disagreed with the opinion of the Respondent concerning the issue of her qualifications to become a licensed laboratory technologist, and by correspondence of May 9, 1977, requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings for consideration. On the initial date of hearing of August 18, 1977, the Petitioner gave testimony concerning her work experience. Some of that experience pertained to a job which she held in May, 1972 through July, 1975, this employment being with the Department of Business Regulation, Division of Pari-Mutual Wagering. The job there was working in the racing laboratory doing routine urinalysis of the horses who were running on the race program. An additional function was to do blood tests for the presence of drugs in certain prisoners who were incarcerated by the law enforcement officials in Dade County. Mrs. Richardson also worked six months at a regional laboratory as a laboratory technician I. This employment was during the year 1975. Those duties included DKU for new born babies, in other words testing for phenylhetonuria. In 1975 through 1977,to include the date of hearing, the Petitioner worked for the North American Biological Laboratory Inc. of Miami, Florida. This job was as a laboratory technician. Some of the duties included routine tests for hepatitis. Mrs. Richardson had also worked from July, 1968 through March, 1977 with the National Cardiac Childrens Hospital in Miami, Florida, as a laboratory assistant. All the work related experience stated above was in the position of a laboratory technician; that is to say that the work was in a position of a laboratory employee and under the supervision of a person qualified in laboratory work. Mrs. Richardson's educational background includes a high school diploma from the State of South Carolina; and two years of various courses at the Miami Dade Junior College to include courses in Math, Biology and Chemistry; however, the only courses in which the Petitioner received credit in this latter enrollment period was the credits for Math. The amount of total hours was three credit hours. This initial enrollment in the Miami Dade Junior College was in the years 1968 through 1970. Mrs. Richardson has also completed a course offered by Charron-Williams College, Paramedical Division. This course was offered in the City of Miami, Florida, and was completed by the Petitioner on August 2, 1974. Moreover, a diploma was given to Mrs. Richardson indicating that she had completed the prescribed course as a clinical laboratory technician. The Respondent concedes that the Petitioner is entitled to function as a laboratory technician and as a matter of fact the Petitioner is licensed by the Respondent in that capacity. As stated before, the opposition of the Respondent to the licensure of the Petitioner pertains to the attempt of the petitioner to be a licensed laboratory technologist. From the position taken at the hearing, the Respondent has abandoned its position in opposition to the licensure based upon the failure of the Petitioner to have completed at least four years of pertinent experience in an approved laboratory. This change in position by the Respondent has been made in view of the prior experience which the Petitioner has. On the second matter of opposition which pertains to the requirement of a minimum of 60 hours or equivalent in quarter or trimester hours in an accredited college or university with a chemical, physical or biological science as a major subject, the Respondent still asserts that the Petitioner has failed to meet those requirements. When this modified position was made known to the Petitioner in the course of the August 18, 1977 hearing, it was brought to the attention of the undersigned that the Petitioner was presently attending a college program which would lead to the completion of 60 semester hours or equivalent of work which would bring about an approval of her application to be a licensed laboratory technologist. By agreement of the parties, the hearing was recessed to allow the Petitioner to pursue that course study with the understanding that if the Petitioner decided that she was unable to achieve licensure through the completion of that course study, this knowledge could be made known to the undersigned and a recommended order would be drafted on the basis of the information which had been presented at the August 18, 1977 hearing. A period of time passed in which no one indicated their position on the question of requiring a recommended order to be made. This period of inactivity came to a close when the undersigned was made aware of the fact that the Petitioner wished to have a determination of the issue of her entitlement to a license as a laboratory technologist made before any completion of the current program in which she has enrolled. Therefore, on March 6, 1978 the hearing was reconvened. At that time it was offered into the record that 21 hours out of the needed 60 hours had been completed in the junior college program in which the Petitioner was now enrolled. Consequently, it left the hearing in the posture that any entitlement which the Petitioner would have to a license as a laboratory technologist must be conferred on the basis of the completion of the course with Charron-Williams College or some other alternative method expressed in Section 10D-41.25, Florida Administrative Code. This provision of the Florida Administrative Code pertains to the requirements for licensure as a laboratory technologist. A perusal of those requirements leads to the conclusion that the only possible basis for licensure which could be demonstrated, after an examination of that section, and in view of the testimony, would be the Section 10D-41.25(9), Florida Administrative Code, that provision states: 10D-41.25 Laboratory Personell -- Quali- fications, Technologist. A technologist shall meet one of the following requirements: * * * (9) Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as a major subject, and at least four years of pertinent experience in an approved laboratory, or There are insufficient credit hours in the current enrollment In the junior college to meet the 60 semester hours or equivalent demand. Likewise, an examination of the Composite Exhibit #2, by the Petitioner, which includes the diploma, would show that the course study with Charron-Williams College was for purposes of becoming a clinical laboratory technician and not for the purpose of becoming a laboratory technologist. Moreover, assuming for purposes of argument that the program was designed as a course for clinical laboratory technologists, the credit received from Charron-Williams would not qualify because Charron- Williams is not an accredited college or university within the meaning of the aforementioned section of the rule. That rule is Section 10D-41.25, Florida Administrative Code. This conclusion on the subject of accreditation has been reached by an examination of Section 483.051(11), Florida Statutes. That provision says that the Respondent may approve the curriculum in schools and colleges offering education and training leading toward the granting of a license. The Respondent has taken the opportunity to set the qualifications and by its Section 10D-41.22(11), Florida Administrative Code, has defined the term accredited. In that provision it states: 10D-41.22 Definitions. In addition to definitions set forth in Section 483.041, F.S., as used in this chapter, unless context indicates to the contrary, the following terms shall mean: (11) Accredited -- refers to educational accreditation by a nationally recognized accrediting agency or association as deter- mined by the U.S. Commissioner of Education, or the Florida Department of Education, or, on an equivalent basis by the Department of Health and Rehabilitative Services. In the course of the hearing proof was offered that the publication Higher Education-Education Directory (1974-75), published by the U.S. Department of Health, Education and Welfare, Education Division; is a directory which list the institutions accredited by agencies, which agencies are recognized by the U.S. Commissioner of Education as being an acceptable accrediting agency or association. That publication does not list Charron-Williams College as being an accredited institution for purposes of academic study, at the time that the Petitioner received her diploma from that college. Finally, the Charron-Williams College seems to recognize that it has not achieved sufficient status to even have its graduates licensed as clinical laboratory technicians, a lesser level of endeavor than that necessary to become a clinical laboratory technologist. This recognition is stated in the December 23, 1977 letter from the president of the Charron-Williams College, Miami, Florida, addressed to the Director of the Office of Laboratory Services within the State of Florida, Department of Health and Rehabilitative Services. This letter may be found as Respondent's Exhibit #1, entered into evidence. Through that correspondence, the president of the college is requesting of the Respondent those things necessary to have its students accepted for licensure. Upon the consideration of all the facts, the petitioner does not qualify for licensure as a laboratory technologist within the meaning of Chapter 483, Florida Statutes, and Section 10D-41.25, Florida Administrative Code.
Recommendation It is recommended that the license application made by the Petitioner, Rosa M. Richardson, to become a licensed laboratory technologist be denied. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Rosa M. Richardson Leonard Helfand, Esquire 17935 Northwest 47th Place Department of Health and Carol City, Florida 33055 Rehabilitative Services 2445 West Flagler Miami Florida 33135
