The Issue By this petition, Horace R. Morgan, Jr., M. T. seeds a review of the Division of Health's denial of Mr. Morgan's application for licensure as a clinical laboratory supervisor.
Findings Of Fact The facts herein involved are largely undisputed. Mr. Morgan acknowledges that the experience computations made by the Respondent from the attachment to his application for licensure, Exhibit 3 herein, are correct; and that, as computed, the total experience of Mr. Morgan comprises seven years and four months. Mr. Morgan, however, contends that the practice of the Respondent in allowing credit only for months inn which an applicant is employed in a laboratory and requiring twelve months of such employment for one year's credit is not correct. The Petitioner's position appears to be that he should be given credit from the time he was initially employed as a laboratory technician through the intervening years he has been employed without regard to periods in which he was not so engaged. Petitioner's second point of contention is that, as acknowledged by the Respondent, he has a total of 70 credit hours in academic training, and therefore his experience requirements should be reduced accordingly. Rule 10D- 41.04, F.A.C. Laboratory Personnel Qualifications Supervisor, provides the minimum qualifications of a supervisor. These include successful completion of three years of academic study (a minimum of 90 semester hours or equivalent) in an accredited college or university, and at least seven years of experience in a clinical laboratory; or successful completion of two years of academic study ( a minimum of 60 semester hours or equivalent) in an accredited college or university and at least ten years of experience in a clinical laboratory. Petitioner contends that 70 hours of academic study should result in a lessening of the amount of practical experience required. Petitioner's basic contention is that the additional ten hours of academic study should be equivalent to one year of of experience, inasmuch as 60 hours of academic study requires ten years experience to qualify for supervisor, whereas with 90 hours academic study, only seven years experience is required to qualify as supervisor. On the other hand, Respondent's witness, who is in charge of reviewing all applications such as Morgan's, testified that the Division has interpreted the regulations to require a successful completion of three years of academic study and seven years experience, or successful completion of two years academic study and ten years experience in order to qualify as a laboratory supervisor. No interpolations have been allowed between these two requirements, and this interpretation of the rule has been followed since the rule was promulgated some seven or eight years ago. She further testified that she had credited Morgan with his experience periods in the manner that has been used to credit all other applicants since the rules were adopted. Under this long standing interpretation of the regulations, Morgan has seven years and four months experience as indicated on his application, and he also has 70 hours credit for academic study. Accordingly, even had Morgan been credited with nine years experience as he would have if given credit for every year he has been licensed, he still would not meet the minimum requirements to qualify as a supervisor.
The Issue At issue herein is whether Petitioner, Ellen Moldoff, is qualified for a supervisor's license in microbiology under Section 10D-41.24(10), Florida Administrative Code.
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the following relevant facts are found. On February 27, 1979, George S. Tylor, Jr., B.A., Clinical Laboratory program, advised Ellen Moldoff, petitioner, that her application for licensure as a supervisor was being denied under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, in that, "You do not have the 60 semester hours and the 10 years experience required under Section 10D-41.24 (10), of the Florida Administrative Code." Petitioner timely appealed the Department's denial of her application for a supervisor's license in microbiology. During the course of the hearing, Petitioner acknowledged the fact that she failed to satisfy either the sixty-semester-hour requirement or its equivalent in quarter or semester hours (two years of academic study) in an accredited college or university or that she possessed the ten years pertinent experience requirement as set forth in Chapter 10D-41.24 (10), Florida Administrative Code. However, Petitioner introduced four letters of recommendation written by employees and other supervisors who were familiar with the Petitioner's skills and abilities. It suffices to say that they all spoke highly of Petitioner's qualifications and highly recommended her to take the supervisor examination in microbiology. Petitioner, during the hearing, alluded to numerous persons whom she considered less qualified than she who were permitted to take the supervisory examination based on an overstatement of qualifications in their applications for licensure as a supervisor. Finally, Petitioner felt that her honesty alone prevented her from being permitted to take the supervisory examination Petitioner expressed her opinion that based on her observation of the clinical supervisors and the duties to which she is assigned, she considered herself as qualified, if not more qualified than those she observed. Respondent does not question Petitioner's ability to fulfill supervisory functions; however, it hastens to add that it has no authority to waive the qualifications for supervisory laboratory personnel as set forth in Chapter 10D-41.24(10), Florida Administrative Code.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner's appeal of the Respondent's determination that she is ineligible to take the supervisory examination be DENIED. DONE and ENTERED this 6th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Ellen Moldoff 3690 Inverrary Drive Lauderhill, Florida 33319 Harold Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311
The Issue Should Petitioner be considered eligible for licensure and licensed as a clinical laboratory supervisor in the specialties sought.
Findings Of Fact At all times pertinent to the matters in issue here, Petitioner was licensed as a clinical laboratory supervisor in the State of Florida in the areas of hematology, serology and microbiology, under the provision of Chapter 483, Part I, Florida Statutes. This licensure is based upon her passing an examination in those subjects and her certification as qualified pursuant to Section 241, Public Law 92-603 by the Bureau of Quality Assurance, Public Health Service of the United States Department of Health, Education and Welfare. She is not certified in the areas in which certification is herein sought. The Department is the state agency responsible for the licensure and regulation of clinical laboratory personnel, including supervisors, in Florida. Petitioner has been licensed as a clinical laboratory supervisor in the disciplines set out above for approximately 12 years, the last six of which, she has spent at the laboratory at Doctor's Hospital in Sarasota, a laboratory approved by the State of Florida. In November, 1989, she applied for supplemental licensure as a clinical laboratory supervisor in the fields of chemistry and immunohematology, but was denied the requested licensure because she does not have either a bachelor's degree with a major in science, or 90 semester hours study in that field at an accredited college or university. Her educational and experience background are, however, impressive. Between June, 1965 and December, 1966, she was in training in the areas of hematology, serology, chemistry, microbiology and immunohematology. In January, 1967, she went to work in a doctor's office and set up his laboratory in which she worked in hematology testing, chemistry and urinalysis. In September, 1967, she went back to a hospital as a technologist in all phases of laboratory work. In July, 1973, she moved to Sarasota and went to work in the laboratory at Doctors Hospital, working with all five subspecialties. She held the job of technician and supervisor in all fields in which she was licensed. Petitioner asserts, and the Department agrees, that she was licensed in Florida as a supervisor in hematology in 1978, and in the areas of microbiology and serology in 1979. In April, 1980, Petitioner went to work for several doctors in Bradenton as a laboratory technician/technologist, remaining there through December, 1980, when she went back to Doctors Hospital, again working in all five specialty areas, and remained there as a technologist and supervisor in those areas in which she was licensed, until October, 1989. Since that time, she has worked in a Sarasota oncology laboratory, in hematology and clinical chemistry. She does no on-site chemical testing, however, since all is sent out. Through cross examination of the Petitioner, Respondent established that in 19878, and again in 1979, Petitioner took and failed to pass the Florida examination for supervisor in clinical chemistry and hematology. In the instant case, however, her protest is not about the grade she received on those examinations, but of the refusal to grant her licensure without examination on the basis of her experience. Petitioner is well thought of by the physician's for whom she works. Dr. Barbara J. Harty-Golder, a pathologist and her current supervisor, has known her since 1983 and has indirectly supervised her work since that time. She feels that Petitioner's performance in laboratory technology in the areas in which she seeks certification, is quite good. She has rarely worked with anyone as proficient and competent. Petitioner has exceptionally good people skills. She keeps up with current advances, and based on the witness' experience, which comes from supervision of several laboratories, she feels the Petitioner is fully qualified to be a supervisor in the areas in which she seeks certification. In late November, 1989, after Petitioner had submitted her request for licensure without examination, Ms. Nancy Chapman, assistant administrator of the Department's laboratory licensure division, and the individual responsible for evaluating Petitioner's application, wrote to her requesting information which was not on file in the Department's records. This information related to Petitioner's holding a bachelor's degree with a major in science. Petitioner did not respond to that request, and Petitioner stipulates that she does not possess the technical formal education specified in the Department's rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary enter a Final Order denying Petitioner's application to add the specialty areas of clinical chemistry and immunohematology to her clinical laboratory supervisor's license. RECOMMENDED this 25th day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1880 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted that Petitioner is a duly certified laboratory technologist, but not proven as to the subject matters in which so certified. & 4. Accepted and incorporated herein. 5. Accepted and incorporated herein. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. COPIES FURNISHED: Edward A. Haman, Esquire DHRS 7827 North Dale Mabry Highway Tampa, Florida 33614 Lawrence J. Robinson, Esquire Robinson, Robinson & Fogleman, P.A. P.O. Box 2720 Sarasota, Florida 34230-2720 John Miller General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
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, specializing in clinical chemistry. On April 1, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours required by Section 10D- 41.25(9), Florida Administrative Code. Petitioner is a high school graduate. There after he graduated from Charron-Williams Paramedical College, technician training school. He has not attended an accredited college or university. Petitioner has been employed as a technician for approximately five years, and his witnesses testified as to the quality of his work. 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: Mr. Devon L. Carter 16615 S.W. 103rd Court Miami, Florida 33157 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact At some time prior to August 14, 1986, the Petitioner herein, Marilyn L. Edwards, submitted an application for examination for licensure as a technologist in Florida under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes. Petitioner's application was reviewed in the Office of Licensure and Certification of DHRS by Mr. George S. Taylor, Jr. Assistant Administrator of the Laboratory Personnel Licensure Section. The criteria for licensure as a technologist are outlined in Section 10D-41.69, Florida Administrative Code, which provides that the applicant must have one of the following: A bachelor's degree, from an accredited college or university in an approved Medical Technology Program, or 90 semester hours at an accredited college or university in addition to one year in an AMA approved school of medical technology, or A bachelor's degree from an accredited college or university in one of the chemical, physical, or biological sciences with one year laboratory experience at the technician level, or An associate degree or 60 semester hours at an accredited college or university in an approved Medical Laboratory Technician Program which includes 8 hours in chemistry and 8 hours in biological science, or 60 semester hours at an accredited college or university including 20 hours of science of which at least 8 hours is in chemistry and 8 in biological science plus 4 years experience as a chemical laboratory technician. Petitioner's application was filed under the provisions of Rule 10D- 41.69(4), Florida Administrative Code, above. However, Petitioner did not meet that criteria. The school at which she was trained a program administered by the Veteran's Administration, (VA), Hospital in Dublin, Georgia, was not an accredited college as required. Ms. Edwards attended a VA certified laboratory assistant program in Dublin, Georgia, approved by the American Society of Clinical Pathology during 1970 and 1971. After graduating from that program, she took and passed the technician's examination in Florida. The course work included in the VA program included 1388 of classroom hours of course work which have not, to this date, been converted to equivalent credit hours. The course work did, however include such subject matters as anatomy, organic and inorganic chemistry, hematology parasitology, microbiology, urinalysis coagulation, and aminohematology. Ms. Edwards contends that according to the current schedule of Miami-Dade Community College the above courses make up the course work for the Associate degree in technology and in addition to the above, Ms. Edwards did her practicals, which included phlebotomy training, at the VA Hospital in Dublin. Ms. Edwards has had fourteen years of training and experience in the medical technician field. Based on the course work taken and her fourteen years experience, she contends she meets the criteria for examination. It is her opinion that the agency, in denying her application for examination, has failed to consider the years of experience she has and it is her contention that some of the programs approved by the agency are not as thorough in the laboratory sciences as that which she took. Ms. Edwards feels she has the knowledge to be a technologist, but admits the rules currently existing prohibit her certification because of the fact that she does not have the required course work at an approved college or university. The American Medical Association approves various types of allied health education and three types of medical technology education which are referenced in the agency rule. These are: Medical technologist (a four year degree program from an accredited academic institution), A medical laboratory technician associate degree program offered by various community colleges (This is very similar to and generally geared to the technician levels but there is more academics involved than for the technician certification. This second pathway meets the academic requirements for certification.), and A one year medical laboratory technician course (not referenced for technologist licensure but for technician only). There is a difference between a technician and a technologist. The former can perform with supervision and undertake tasks requiring limited judgment. The latter may work independently without supervision. Petitioner is already designated as a medical technician. In her application, according to the agency, Petitioner submitted evidence of a course of training for a technician in order to be certified as such. She also submitted the same educational background with her application for licensure as a technologist. The Veteran's Administration Hospital's course is not accredited for college credit. Even though she applied under Section (4) of the rule, she could be considered under Subsection (5) which calls for 60 semester hours plus 20 hours of scientific courses in biology and chemistry, along with four years clinical laboratory experience. Petitioner has the clinical laboratory experience and has taken some courses, but she is not considered as meeting the academic requirement because the institution where her educational courses were taken is not an accredited academic institutions as outlined in the Education Directory published by the National Center for Education Statistics sponsored by the United States Department of Education. As a result, the courses she took do not qualify as college academic courses at the technologist level. DHRS does not establish equivalent course work. The 1388 hours of classroom work taken by the applicant are not semester hours. Though Mr. Taylor said that if she had an accredited junior college or other academic institution translate the equivalents within its degree program and give her academic credit for them and if it is determined by the institution that her course work is equivalent to the required 60 hours for licensure, Petitioner will be permitted to sit for the examination, this really cannot be done. The equivalents outlined in the rule refer to equivalent courses that is semester hours to quarter or trimester hours - not equivalent institutions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Lawn it is, therefore: RECOMMENDED that Petitioner, Marilyn Edwards, be denied examination for 1icensure as a certified laboratory technologist in Florida based on her current educational background. RECOMMENDED this 23rd day of July, 1987, at Tallahassee Florida. ARNOLD H. POLLOCK, 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 23rd day of July, 1987. COPIES FURNISHED: Sam Powers, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Marilyn L. Edwards 2300 Northwest 94th Street Miami, Florida 33147 Leonard T. Helfand Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd venue, Suite 1040 Miami, Florida 33128
Findings Of Fact Gerald A. Tobey holds a clinical laboratory technologist license in the specialities of microbiology, chemistry, and hematology. He has been so certified since 1976. In 1985, Tobey allowed his license to become delinquent, but it was reinstated at his request. In July, 1987, Tobey requested certification to add the specialty of immunohematology to his license. The application he filed asked in Question 9 if he had ever been convicted of a felony or crime involving moral turpitude. Tobey left the question blank. HRS wrote to him requesting an answer. Tobey responded by letter dated September 23, 1987, indicating that the answer was "No." In fact, Tobey pleaded guilty and was adjudicated guilty on February 4, 1985, of the offense of causing a minor to participate in harmful or obscene motion picture exhibitions, shows or presentations, a felony. In exchange for the guilty plea, one count of sexual battery on a minor, his daughter, was nolle prossed. The crime is undeniably a crime involving moral turpitude. Tobey was sentenced to 36 months in a facility operated by the Department of Corrections.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order revoking the clinical laboratory technologist license of Gerald A. Tobey. DONE and ENTERED this 6th day of April, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 6th day of April, 1988. COPIES FURNISHED: Don Royston, Esquire HRS District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, Florida 32601 Gerald A. Tobey 364 Blue Parrot Lady Lake, Florida 32659 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a clinical laboratory technologist's license be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-99775 COPIES FURNISHED: Terry L. Bennett Route 6, Box 249 Lake City, FL 32055 Also mailed to Ms. Bennett at the following address: 1461 Cedar Bay Road Jacksonville, FL 32218 Robert M. Eisenberg District IV Counsel Post Office Box 2417F Jacksonville, FL 32231 William J. Page, Jr. Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32301
Findings Of Fact Petitioner filed an application for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, a special avenue of certification as a physician assistant for graduates of foreign medical schools. In furtherance of that application, he appeared before the Physician Assistant Committee of the Board of Medicine. Subsequent to his appearance before that Committee, on August 13, 1992, Respondent sent Petitioner a letter which provides, in pertinent part, as follows: This is to advise that your application for issuance of a temporary certification with the requirement that prior to issuance of temporary certificate you submit within 30 days of date of appearance, a new corrected and complete application to be reviewed by the Board staff. Please complete the enclosed application. You will be required, as a condition to take the examination, 2 new personalized letters of recommendation, specifically recommending you as a physician assistant. The letter did not enclose an application form for Petitioner to complete. Respondent admits that the information in the letter was incorrect because it confused temporary certification with the requirements for examination. It is apparent that the letter is also incorrect because it fails to advise Petitioner if his application was being granted or denied; moreover, the wording of the letter makes no sense. By Order dated August 26, 1992, the Board of Medicine notified Petitioner that his application for temporary certification as a physician assistant was denied pursuant to the Committee's August 1 determination and the Board's August 9 determination that the length of time since Petitioner had last worked in the field of medicine or received significant medical education or training precluded him from being able to establish that he could practice as a physician assistant with reasonable skill and safety to the public. That Order further advised Petitioner, however, that the Board had granted Petitioner's application to sit for the certification examination pursuant to Section 458.347(7)(b), Florida Statutes, because Petitioner was eligible to take the examination to become certified as a physician assistant and that passage of the examination would serve to establish Petitioner's qualifications for practice. The Order specifically provided that the Board's permission for Petitioner to sit for the certification examination was "contingent upon and subsequent to receipt within 30 days" of Petitioner's appearance before the Physician Assistant Committee of (1) a complete and correct application and (2) two more letters of recommendation which specifically recommend Petitioner as a physician assistant. It would have been difficult for Petitioner to timely comply with the Order entered August 26 requiring him to file documents within 30 days of his August 1 appearance before the Committee. By letter dated August 31, 1992, Petitioner requested an extension of one week by which to obtain the second letter of recommendation due to the devastation produced by Hurricane Andrew and Petitioner's inability to communicate with the doctor who would sign it. Petitioner did, however, submit another application which was postmarked August 31, 1992, and received by Respondent early in September. At hearing, Respondent advised that it was waiving the 30-day deadline contained in the August 26, 1992, Order due to the intervention of Hurricane Andrew and because Respondent had not strictly enforced such deadlines as to other applicants. Rather, Respondent simply required that Petitioner comply with its Order within a reasonable period of time. By letter dated December 21, 1992, Respondent advised Petitioner that his application was incomplete because the Board had only received Petitioner's new application, one letter of recommendation, and Petitioner's request for an extension of time for submittal of the second letter. The letter further advised that the Board's staff's review of Petitioner's recent application had revealed some discrepancies requiring an explanation by Petitioner. The letter, therefore, advised Petitioner to submit one more recommendation letter, provide an explanation for six specified areas, and submit pages 8 and 9 of the application regarding Petitioner's clerkships. The letter further advised Petitioner that all information must be received by the Board no later than December 31, 1992. On January 20, 1993, Respondent received an undated letter from Petitioner referencing Respondent's December 21, 1992, letter which was received by Petitioner on December 30. Petitioner's letter enclosed the additional letter of recommendation requested by the Board, responded specifically to the six areas of inquiry, and enclosed pages 8 and 9 of the Board's application form. On January 20, 1993, the Board received a letter from Dr. Jose M. Bermudez, recommending Petitioner as a physician assistant. On January 28, 1993, the Board sent Petitioner a letter advising him that the Board had received the letter of recommendation from Dr. Bermudez and pages 8 and 9 of the application. That letter further provided as follows: However, the Physician Assistant Committee required you to submit a new complete and accurate application, and two (2) additional letters of recommendation which specifically recommend you as a physician assistant. Enclosed you will find a complete physician assistant application. Please fill the application out in its entirety and submit it to the Board of Medicine as soon as possible. In compliance with that request, Petitioner submitted yet another application for certification as a physician assistant, which was received by the Board on February 8, 1993. On February 24, 1993, the Board of Medicine entered its Order denying Petitioner's application for certification as a physician assistant. The Order recited that the denial was based upon the determination made by the Physician Assistant Committee on January 8 and by the Board on January 13 because Petitioner "failed to submit a new and complete and accurate application and one new personalized letter of recommendation within the time frame allotted by the Board." That Order does not mention Petitioner's application to sit for the certification examination, the issue pending before the Board, since the Board had already denied Petitioner's application for certification by Order entered August 26, 1992. That February Order also advised Petitioner of his right to request an administrative hearing regarding the Board's determination. On February 26, 1993, the Board's staff sent Petitioner a letter advising him that he had been certified by the Board to take the examination for licensure as a physician assistant to be administered in September, 1993. On March 10, 1993, the staff sent Petitioner a letter acknowledging Petitioner's "request for a hearing on the denial of your application for certification as a physician assistant," and advising Petitioner that the February letter advising him that he had been certified to take the examination for licensure as a physician assistant had been sent to Petitioner in error. A "corrected" letter was enclosed. That "corrected" letter dated March 10 advised Petitioner that the Board had preliminarily denied him certification to take the examination for licensure as a physician assistant. By letter dated March 18, 1993, the Board's staff sent an additional letter to Petitioner advising Petitioner as to the correct dates for the examination. In applying for temporary certification as a physician assistant and/or to sit for the certification examination, Petitioner has filed an additional application each time he has been instructed to do so by the Board or by the Board's staff and has submitted a letter explaining the information given in his applications each time that the Board's staff has requested that he do so. Petitioner has filed at least three such applications and has responded by letter to inquiries regarding the contents of his applications at least three times. Additionally, Petitioner has personally appeared before the Physician Assistant Committee on August 1, 1992, to be questioned regarding his qualifications. The Board has discovered some "discrepancies" or omissions in analyzing those various documents. Petitioner's August application states that the ending date for medical school, assumedly the date he received his degree, was February 25, 1965. That date appears in three places. Further, the copy of his diploma submitted to the Board reflects that date. Yet, the December 21, 1992, form from the Board to Petitioner advises him that he must explain his ending date for medical school. In response to that indication that he must provide different information, Petitioner's letter received by the Board on January 20, 1993, states that the ending date for medical school was February 29, 1962. At hearing, Petitioner explained that he attempted to differentiate between the date he completed classes and the date he completed all requirements, including internships, in order to receive his diploma. The information contained in Petitioner's application is correct. The August application contains an answer in the negative to question numbered 9 asking Petitioner if he is or has ever been emotionally or mentally ill. Although Petitioner's subsequent February 1993 application contains no answer to that question, the Board did not have before it the February application when it decided in January to deny Petitioner's application. Even so, Petitioner had no intention to be incomplete or inaccurate when he failed to answer that question on the February application. In his August application Petitioner does not list the completion of any social service work in either section inquiring about post-graduate training or practice employment. In an application that Petitioner filed in 1985 requesting licensure as a physician, Petitioner had specifically detailed the social service work performed by him as part of his medical school training. In that application he listed the dates as January 1, 1963 to December 31, 1963. The letter Petitioner wrote to the Board in response to its December 1992 request for a better explanation states that his social service work was done between March 1, 1963 and September 30, 1963. There is no dispute regarding whether Petitioner did in fact complete his social service work requirement as part of his education in order to receive his diploma, and it is clear that such work was done in 1963. Although there is a discrepancy regarding which months during 1963 he did his social work, the discrepancy as to the months during which Petitioner did something 30 years ago does not make his application inaccurate. In fact, the August application may be more accurate than the 1985 application form. The August application required Petitioner to list in chronological order from the date of graduation to the present all practice experience and/or employment. Petitioner advised that from February 28, 1970, to April 30, 1976, he was in private practice in Nicaragua. The Board's December 1992 letter asked for clarification because a prior application indicated additional activity. Petitioner's response letter advised that he was also in pediatric practice at the General Hospital of Managua from 1970 to 1972. His 1985 application did not mention the pediatric practice at General Hospital. At final hearing, Petitioner explained that he was in private practice at the same time that he practiced at the clinic in the hospital. Petitioner's 1985 and February 1993 applications, although not the subject of this proceeding, also contained some minor discrepancies regarding Petitioner's employment experience. For example, one shows Petitioner beginning his employment with the Nicaraguan Red Cross on May 1, 1976, and the other shows Petitioner's employment beginning on May 31, 1976. The parties do not dispute that Petitioner in fact practiced with the Nicaraguan Red Cross during that time period. In further response to the question requiring Petitioner to list all of his practice experience or employment, Petitioner did not list his activities from September 10, 1984, and thereafter. The Board's December 21, 1992, letter to him requested that he account for all his activities for the time period of January 1, 1984, and thereafter. In his response he did not identify those activities except to say that during that time period he was living in Miami. The detailed information had been provided to the Board in response to a letter to Petitioner from the Board dated March 8, 1992, in conjunction with his original application for certification as a physician assistant, although he did not again provide that information when he was ordered by the Board to file a new application. In Petitioner's August application, he listed no ending date regarding his private practice begun on January 1, 1984 in Managua, Nicaragua. Petitioner's 1985 physician license application showed that that employment ended September 10, 1984, whereas his February application showed that practice to have ended on September 15, 1984. Such a discrepancy is not material to Petitioner's application or eligibility. The application form contains a section regarding clerkships and requests that each clerkship be specified. In the August application Petitioner did not specify his four individual clerkships. After being asked pursuant to the Board's staff's December 1992 letter to resubmit pages 8 and 9 as to his clerkships, Petitioner did so by referring to them as a group rather than breaking them down individually. He did the same in the February 1993 application. The parties do not dispute that Petitioner performed the required clerkships. It is unclear how many letters recommending him as a physician assistant Petitioner has submitted to the Board. Petitioner referenced his submittal of photocopies of the "last two" letters of recommendation, the originals of which had previously been submitted to the Board, in a letter that Petitioner sent the Board in March of 1992. In correspondence from the Board to Petitioner in May of 1992 reference is made to the requirement that Petitioner submit another letter of recommendation because the Board did not have the original of that letter in its file. When the Board's staff instructed Petitioner to appear before the Physician Assistant Committee on August 1, 1992, the absence of necessary letters of recommendation was not one of the reasons given. The Board's August 26, 1992, Order requests "two more letters", which indicates that letters had been previously submitted. The staff's December 21, 1992, communication to Petitioner acknowledges receipt of one additional letter but requests another, which request was complied with at least by the submittal of the letter from Dr. Bermudez received by the Board on January 20, 1993. Petitioner applied to be certified as a physician assistant and the Board determined that he was eligible to take the examination. Thereafter, through a series of mistakes and correct acts, the Board's staff requested Petitioner on a number of occasions to file additional applications which he did. When the Board's staff asked for clarification he responded in writing and by telephone call, and the Board agrees that it has telephone slips in Petitioner's file. Each time the Board's staff asked for different information than had been given in Petitioner's previous application(s), Petitioner provided more and/or different information. There is no suggestion that Petitioner attempted to provide inaccurate or false information, and it is found that Petitioner provided correct and complete information to the best of his ability. Petitioner's mistakes are certainly no greater than the mistakes made by the Board's staff in sending Petitioner conflicting instructions, conflicting correspondence, and one letter that did not make any sense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered permitting Petitioner to sit for the physician assistant examination to be administered during September of 1993. DONE and ENTERED this 12th day of July, 1993, at Tallahassee, 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 12th day of July, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-1550 Respondent's proposed findings of fact numbered 1-10 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: Catherine Lannon, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Enrique Rueda Arguello 9409 Fountainbleau Boulevard, Apt. #101 Miami, Florida 33172 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact After the hearing was called to order in the above styled cause, the parties submitted the following stipulation: Sometime in December of 1978, the Petitioner, MARY KANNER applied tot he DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Clinical Laboratory Registra- tion and Licensure Program, for a Clinical Laboratory Technologist License. After reviewing the petitioner's application and supporting documents, the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES discovered that she did not have the sixty (60) semester hours required by Section 10D-41.25(9). MRS. KANNER was notified of her failure to qualify for the requested Technologist license by letter from the Department dated January 30, 1979. Subsequently, MRS. KANNER requested an Administrative hearing. Pursuant to her inquires, Mrs. Kanner received several communications from the Respondent Department. One letter dated January 30, 1979, from Nathan B. Schneider, Director of the Office of Laboratory Services, stated that it was the finding of the Respondent Department that Mrs. Kanner might be eligible for licensure as a clinical laboratory technician, and the letter authorized her to work in that capacity until the next scheduled examination, or no later than July 1, 1979. The letter stated that Mrs. Kanner would be notified in advance of the time and place of the examination. A second letter dated January 30, 1979, to Mrs. Kanner from Nathan B. Schneider, acknowledged the receipt of her application for licensure as a technologist but informed her that she was apparently ineligible because she did not have the required sixty (60) semester hours, but also advised her of her entitlement to an administrative hearing. Petitioner submitted letters as follows: a letter to Dr. Schneider from Alice Browner, Registrar of the Canadian Sociaety of Laboratory Technologist. The letter stated in pat that Petitioner had trained for a period of six (6) months, mainly September, 1966, to March of 1967, in a training program in the hematology department. The training was listed as follows: Bacteriology 1 evening a week February - May Biochemistry Sunday afternoons March - June Histology Saturday mornings March - Middle of May Blood Bank One evening a week January, February & March Hematology 6 months formal training Experience - 23 months (excluding formal training) (Resume in Hematology written previously) A letter dated March 29, 1979, to Dr. Schneider from Arthur Rosenberg, Chief of the Department of Hematology at the Sir Mortimer B. Davis - Jewish General Hospital, stated in part that Petitioner started her course in medical technology in 1966, and that in 1969, she wrote the hematology subject examination and received her Canadian registration. She worked as a hematology technologist until 1971, and as a department supervisor from 1971, to 1974. The letter stated that the preparation time prior to writing her examination subject would be the "equivalent of 60-plus semester hours of study." A letter was submitted to Counsel for the Respondent Department dated July 16, 1979, in which John V. Briscoe, Director of Hospital Services for the Sir Mortimer B. Davis - Jewish General Hospital, supplied a document which stated that the Jewish General Hospital is "an affiliated teaching hospital with McGill University, Montreal, Quebec, and is fully accredited by the Canadian Council on Hospital Accreditation, the date of the last accreditation survey being September 26, 1977." In answer to the statement by the Respondent Department that the Petitioner did not have documented evidence of the required sixty (60) semester hours direct from a university, Petitioner explained that in Montreal, Canada, in 1966, all English-speaking schools for nursing and technology took place in various accredited hospitals, using the same format as would be used at a university. In a separate section of the hospital was the school of nursing and the school of technology, but in recent years all of the schools were at the universities. Dr. Howard R. Rarick, Chief of the Clinical Laboratory Improvement Program for the Respondent Department, reviewed Petitioners application and supporting documents and did not find a transcript showing completion of sixty (60) hours credit or its equivalent as required by the State statute and rule promulgated thereunder. The Respondent Department does not evaluate the credits from foreign schools or institutions but forwards the credits to the International Education Research Foundation, which evaluates and determines the equivalent American credits that should be allowed. The Petitioner had no certified transcript from the hospital or university in which the foreign credits were earned and, therefore, was unable to send this to the Research Foundation to convert the foreign credits. The letters submitted by Petitioner are insufficient to substitute for a certified transcript for evaluation purposes. Both parties submitted a stipulation of facts, and the Respondent Department submitted a memorandum of law. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Mary Kanner, to sit for examination as a technologist be denied. DONE and ORDERED this 30th day of August, 1979, in Tallahassee, Leon County, Florida. DELPHIAN C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mrs. Mary Kanner 1901 North 51st Avenue Hollywood, Florida 33021
