The Issue Whether Petitioner is entitled to receive a passing score on the clinical portion of the August 1999 optometry licensure examination.
Findings Of Fact Petitioner, Sandra Farhady (Farhady), took the Florida optometry licensure examination in August 1999. The examination is divided into four portions: laws and rules, pharmacology, clinical, and certification. Prior to the administration of the test, each examiner is given grading standards, which are the requirements that must be met by a candidate to successfully demonstrate a particular procedure. All examiners receive standardization training, during which the examiners are trained to apply grading standards consistently. Examiners are instructed to wear their best corrective lenses. Examiners are instructed to grade each applicant independently of each other and are not permitted to confer with each other concerning a candidate's score. If both examiners agree, the candidate receives no credit or full credit, depending on whether they considered the candidate to have properly performed the procedure requested. If they disagree, the candidate is given partial credit on that procedure. The clinical portion of the examination requires the applicant to perform a number of tasks while two examiners evaluate the procedures. The examiners observe the procedure through a viewing system known as a teaching tube which is attached to the optometrist's equipment used by the candidate. Only one teaching tube is used so each examiner views the procedure separately. The candidate may ask the first examiner to grade his view and hold the view for the second examiner without having to refocus, or the candidate may perform the procedure for each examiner. Farhady passed the laws and rules, pharmacology, and certification portions of the examination, but failed the clinical portion of the examination with a score of 69.1. The passing score for the clinical examination is 75.0. Farhady challenged the score that she received on question 11a of the clinical examination. The question dealt with a procedure called retinoscopy, and the Department conceded at final hearing that Farhady should have been given credit for her answer. The additional points associated with question 11a raised Farhady's final score to 70.125. Farhady challenged the score she received for questions 33a, 33b, 33c, and 34a of the clinical examination. The questions relate to a procedure known as applanation tonometry, which is used to check a patient for glaucoma by measuring the intraocular pressure. This portion of the examination was worth ten points. Applanation tonometry is performed using a tonometer. The tonometers used by all the candidates for the August 1999 examination were part of a Zeiss slit lamp, which is also called a Zeiss microscope. It is an apparatus commonly used by optometrists within the scope of their practice. Each of the tonometers had a large fixation device mounted on the left side of the microscope. On the day of the clinical portion of the examination, the tonometer used by Farhady was in working order. No other candidate made a complaint concerning the working condition of the tonometer. The tonometer used by Farhady was not altered before, during, or after Farhady's session. There are time limits for section two of the clinical portion of the examination, which includes the applanation tonometry procedure. The Candidate Information Booklet for the Optometry Examination, which is provided to all candidates prior to the examination, provides: To protect the patient and to evaluate clinical competency, we will put time limits on the amount of time you will have to attempt each of the Section Two procedures. Timing will start after you receive the initial instructions for each procedure from the examiners and will continue until completion of the procedure or until time expires. . . . The time limit for the applanation tonometry procedure is six minutes. Farahady was unable to complete the applanation tonometry within the time allowed during the examination. She could not make the probe of the tonometer contact the patient's eye. During the procedure she advised the examiners, "Something is up with the tonometer." Farhady filled in a Candidate Comment Form and stated the following: Unable to acquire a view on tonometry. Mires were clear but fluorescent pattern not correct. It appeared like ground glass. I reapplied NAFI, but same view was seen so no grading was possible & I ran out of time. One of the examiner's noted the following on the Examiner's Comment Form: Pt. Ran out of time on tonometry--was apparently unable to see mires. Mires did not 'Flouress' well but was easily visible. Light source was close to 90 [degrees] away which may have contributed. Tonometry was repeated by this examiner without instilling new NaFl successfully by brightening the light source & bringing it to 60 [degrees]. Farhady contends that the position of the fixation device prevented her from being able complete the tonometry procedure. The fixation device can be easily moved to one side, pushed back, or folded up. If the fixation device was hindering Farhady in bringing the tonometer probe in contact with the patient's eye, Farhady could have quickly and easily moved the device out of her way. The position of the fixation device is not a defect in the tonometer equipment, which would have prevented a candidate from successfully performing applanation tonometry. Item 33a was the evaluation of whether the illumination source was a proper angle of 40 to 60 degrees. Item 33b evaluated whether the mires were the proper width. Item 33c evaluated whether the mires alignment was correct. Item 34 was the evaluation of whether the candidate obtained an accurate reading of the intraocular pressure. Farhady did not have the proper angle, did not demonstrate whether the mires were the proper width, did not align the mires correctly, and did not obtain a reading of intraocular pressure. Farhady challenged the score she received for questions 25a, 26a, 27a, 28a, 30a, and 32a, in section two of the clinical examination. These questions relate to a procedure referred to as biomicroscopy of the fundus. The scores given by the examiners for these questions were not identical. Examiner 199 did not give Farhady any points for questions 25a, 26a, 27a, 28a, and 32a. Examiner 199 noted that Farhady did not establish the proper focus with respect to these procedures. While examiner 231 did give Farhady points for procedure 25a, examiner 231 noted that Farhady had achieved only a borderline focus. Both examiners noted poor focus with respect to question 32a and did not give Farhady credit for that question. Question 25a required proper focus of nerve head. Examiner 199 noted the following on the grade sheet with respect to question 25a: Could not get it in view in left ocular. Candidate even verbalized this. For questions 26a, 27a, and 28a, examiner 199 noted that Farhady had no focus. For question 32a, examiner 199 noted, "could not/would not maintain focus." Farhady challenges the scores she received for questions 2a and 4a on section one of the clinical examination. These questions relate to visual field testing. The candidate is shown a visual field and is asked questions pertaining to the visual field. When Farhady was shown the visual field, she immediately said out loud that it was a glaucomatous loss before the examiner could read the instructions to her. The examiner said, "no" and began to read the instructions. Farhady thought that the examiner meant that it was not a glaucomatous loss. The examiner manual advises the examiners to avoid any comments which the candidate could interpret as favorable or unfavorable. For question 2a, Farhady was asked to name the visual field defect. She stated that it was arcuate scotoma. The correct answer was superior arcuate scotoma. Credit is not given for partial answers. It is important that the candidate identify whether it is a superior or an inferior arcuate scotoma in order to establish the location of the lesion so that the correct diagnosis can be made. Whether the examiner said "no" is irrelevant to the answer which Farhady gave to question 2a because she did identify that it was an arcuate scotoma. For question 4a, Farhady was asked which disease would be most consistent with the visual field defect. Farhady answered supracellar craniopharyngioma, which is incorrect. In layman's terms, a supracellar craniopharyngioma is a tumor of the pituitary gland. A visual field of a tumor of the pituitary gland is a bitemporal configuration not an arcuate configuration, meaning that Farhady's answer did not correlate in any way with the visual field defect. It was improper for the examiner to have said "no" after Farhady responded that it was a glaucomatous loss. It could have been interpreted by a candidate, as it was by Farhady, that her response was incorrect. The examiner should have told Farhady to wait until the instructions were read. Question 4a was worth 1.5 points, giving Farhady a total percent score of 71.6, which is not a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandra D. Farhady did not pass the clinical portion of the August 1999 optometry licensure examination and dismissing her petition. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Sandra D. Farhady 6404 Wiley Street Hollywood, Florida 33023
Findings Of Fact On October 28, 1985 Petitioner was employed by the City of Miami Fire Department. He began attending fire college. In November 1985 Respondent received Petitioner's application for certification as a firefighter. Petitioner's application and those of his classmates were transmitted in a group to Respondent by the City of Miami. On January 22, 1986 Respondent wrote a letter to the Chief of Training for the City of Miami Fire Department advising him that Petitioner needed his vision re-checked. There is no evidence that that letter was ever received by the City of Miami, and the evidence is uncontroverted that Petitioner was never advised of its contents. Respondent's file copy of that letter admitted in evidence reflects a "received" date stamp of June 16, 1988. Petitioner graduated from fire college and took the state licensure examination. He passed the examination on February 12, 1986, receiving a score of 82 on the written portion and a score of 93 on the practical portion. By letter dated July 27, 1988, Respondent advised Petitioner that his application for certification as a firefighter filed with Respondent in November of 1985 was denied due to Petitioner's failure to meet the visual acuity standard. That letter from Respondent was the first communication from Respondent to Petitioner regarding his application for certification. Pursuant to instructions from Respondent, the City of Miami Fire Department removed Petitioner from combat status although he had successfully performed his duties in combat status for approximately two and one half years. Petitioner is still employed by the City of Miami Fire Department. Petitioner's uncorrected vision is 20/67 in his right eye and 20/50 in his left eye. His corrected vision with glasses is 20/29 in his right eye and 20/20 in his left eye. On June 28, 1988 the Chief of Training for the City of Miami Fire Department wrote to Respondent (most probably in response to the City's receipt of Respondent's January 22, 1986 letter on June 16, 1988) regarding the status of the three individuals, including Petitioner, inquired about in Respondent's January 22, 1986 letter. The Chief of Training advised Respondent that Petitioner would be undergoing corrective surgery. Although Petitioner has pursued through several medical examinations the possibility of corrective surgery to his eyes, the doctors have declined to operate on Petitioner's eyes because his visual deficiencies are so minimal that they cannot justify the risk of surgery or the possibility of the surgery worsening Petitioner's visual acuity. The City of Miami is not the applicant for certification as a firefighter. It is simply the entity which mailed the applications of Petitioner and his classmates to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered certifying Petitioner as a firefighter effective February of 1986. DONE AND ORDERED this 28th day of February, 1989 in 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 28th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-4090 Each of the unnumbered paragraphs contained in Petitioner's Proposed Recommended Order has been rejected as not constituting a finding of fact. Respondent's proposed findings of fact numbered 5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. COPIES FURNISHED: Dwight K. Nobley 652 N.W. 46th Street Miami, Florida 33127 Lisa Santucci, Esquire Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300
Findings Of Fact David R. Ness, Petitioner, attended Southern College of Optometry in Memphis, Tennessee, and graduated in May 1990. Part of his training included a three-month externship with James C. Lanier, O.D., an optometrist practicing in Jacksonville, Florida. Dr. Lanier found him a very competent student, thorough in his fact finding and case histories; and satisfactory, if not above average, in his examination of the patients. Dr. Lanier did not participate in the grading of the examination in issue and has no personal knowledge of Petitioner's performance on the examination. Petitioner sat for the September 1990 Optometry licensure examination. He passed the certification portion of the examination and the laws and rules section; he failed the pharm./ocular portion and the clinical portion. After several challenges to the examination, the Board adjusted some scores, but Petitioner's scores in the pharm./ocular section and the clinical sections were still below passing. Written Examination The pharmacology/ocular written portion of the examination consists of a series of case histories, with five questions directed to each. Petitioner explained that he challenged his score on the following specific questions: History #1, question #4; History #5; question #23; History #7, questions #32-35; and History #10, question #48. Case history #1 describes a 19-year old female soft contact lens wearer with symptoms correctly identified by Petitioner as Giant Papillary Conjunctivitis. The patient relies on her contact lenses because she is an actress. The severity of her condition is 3+ on a scale of 1-4, with four being the most severe. Question #4 requires selection from six choices of the initial management course of choice. Petitioner chose "c", Pred Forte suspension, every two hours. Pred Forte is the strongest commercially available steroid and its application every two hours is reserved for very severe cases. While the condition described is moderate to severe, the better answer is "f", "switch to preservative free system, enzyme cleaning 1 time a week". The patient's cleaning solution, described in the case history, is an old solution with a preservative which is known to cause conjunctivitis. While the safest course would be to discontinue contact lens wear, this is a radical option for a patient who must wear the lenses for her work. The preferred course then is to change the solution to see if the condition improves before moving to a less conservative treatment such as Pred Forte. Case history #5 describes symptoms and includes a color photograph of the eye in issue. Petitioner correctly identified the differential diagnosis as "Essential Iris Atrophy" and "Reiger's Anomaly". The next question, #23, states that the fellow eye shows similar findings in a slit lamp examination, and asks which of the differential diagnoses is the final diagnosis. Petitioner selected "Essential Iris Atrophy". The correct answer is "Reiger's anomaly". Essential Iris Atrophy is almost always unilateral and Reiger's is bilateral. The question required the examinee to know this distinction. Case history #7, describes a 37-year old patient with alleged recent vision field loss which occurred after thoracic surgery. The history describes an examination in which the patient remarks that he "isn't going to sue the physician" and where, with coaxing, his vision is much better than he admits. The patient also presented summary results of carotid artery testing and CT studies, which were normal. In his answers to questions 32-35, Petitioner chose diagnoses and treatment based on his conviction that he should try to help anyone who would come to him. He missed the fact that the patient described in the case history is a malingerer who likely is trying to sue his surgeon, and who requires no treatment. Case history #10 describes a 68-year old patient who is being examined for fitting of an extended wear contact lens. The best corrected vision is 20/50 OD, with or without a contact lens. The examination question includes two photographs, one of the fundus examination, the other of a fluorescein angiogram. An angiogram is obtained by injecting dye in the forearm and taking pictures with a special filter as the dye circulates through the blood vessels within the eye. This process is able to reveal abnormalities in the eye. Petitioner missed the question relating to the final diagnosis, which should have been "age-related macular degeneration with secondary choroidal neovascular membrane". Final diagnosis relied, in part, on the fluorescein angiogram. While Petitioner is not arguing that his answer is correct, he contends that the question itself is invalid, because it depends on a process which optometrists are not licensed to perform and it was too technical for recent graduates. People coming out of school have been exposed to live patients and have seen fluorescein angiograms performed and have seen their photographs. Moreover, in Florida, the number of elderly patients makes it necessary that optometrists be proficient in diagnosing age-related macular degeneration. The Practical/Clinical Examination Section 1 of the clinical portion of the practical examination involves the two examiners' review of the examinee's performance of an actual eye examination of a live patient. The two examiners are briefed extensively prior to the examination as to what to look for, but they do not confer during the examination when scoring various functions. For this reason, there may be disagreement between the two examiners. The scores are averaged. On section 1, item #6, with regard to the patient's case history, "follow-up information", the point spread is 0-7, with points being subtracted for failure to follow up on certain information. One examiner gave Petitioner the maximum number of points for the entire case history section. The other examiner gave Petitioner a "no" (0 points) under "personal ocular history", and commented on the examination score sheet that the examinee did not ask ocular history. The same examiner took off 2 points on item #6, "follow-up information" and commented, "did not ask ocular history". At some point during Petitioner's initial challenge, he was given credit for item #3, because it was determined that he did obtain an ocular history. The additional points were not restored to item #6, but should have been; as the failure to obtain that history is the basis for the reduced score. The examiner was not present at hearing to explain any other basis. Section 2 of the clinical portion of the practical examination requires the examinee to perform a series of functions under the scrutiny of two examiners (not the same two as in section 1). Again, the scores are awarded without consultation and there are discrepancies. In each area the examiner marks "yes" or "no" as to whether the procedure is properly performed. A "no" must be supported with the examiner's comment. Two yes marks entitle the examinee to 2 points; a yes/no is worth one point; and two no's are scored zero. For each function, the examinee must demonstrate twice. That is, he says "ready", and the first examinee views the result, then he prepares again and signals, "ready", for the second examiner. For section 2, the candidate is performing techniques or functions on his own patient, a patient whom he brings to the examination and with whom he is familiar. Petitioner is challenging the grading method for Section 2. In 6 out of 16 techniques or functions, the two examinees disagreed; that is, one gave a "yes", and the other, a "no". Petitioner contends that he should get full credit anytime he got one "yes", since that indicates that two people, the examinee and one examiner, agree. There are several reasons why two examiners may disagree on whether the examinee performed a function or technique properly. In some instances one examiner may give the individual the benefit of the doubt; in other cases the patient might move or blink or the examinee might lose his focus. The fact that two examiners independently assess the results gives the examinee two chances to demonstrate his skill. The third section of the clinical examination requires an examination of a live patient where the refractive error of the patient's vision is determined, and a prescription is made. Before being presented to the examinee, the patient is examined independently by three licensed optometrists serving as "monitors". Their examinations give the refraction results against which the examinee's results are compared. Their examinations also determine whether the patient is suitable; that is, the eye must be refracted correctable to 20/20 and the other eye correctable to 20/50. A fourth monitor reviews the results before the patient is presented to the examinee. In this case the patient was examined by the monitors and was found acceptable. Petitioner had problems with the patient; the best he could read was the 20/25 line. Petitioner felt that the patient should have been disqualified and commented in writing on that at the end of his examination, as was appropriate. The comments were reviewed by Dr. Attaway, who considered that the patient had met the criteria when examined by the monitors. Petitioner's refractions varied significantly from the monitors' refractions, which also varied somewhat from each other. Petitioner received a score of 3, out of possible 20, on this portion of the examination. Dr. Attaway did not, himself, examine the patient and the monitors who performed the examinations were not present to testify. The only evidence to rebut Petitioner's findings was the written report of the monitors. Pass Rate for the Examination Out of 130 candidates, approximately 34 percent passed all parts of the September optometry examination. In 1986, 51 percent passed; in 1987, 33.5 percent passed; in 1988, 59.6 percent passed; and in 1989, 52 percent passed. These figures do not, alone, establish that the test is too technical or unfair, nor does the fact that very good students failed. When the examinations are evaluated, when the examinee's performance is rated, there is no established pass rate; the monitors have no idea how close the individual examinee is to passing, either originally or when a challenge is being addressed. Petitioner was a very articulate and candid witness. His two experts were clearly knowledgeable and were sincerely concerned that he should be licensed. None had the experience of Respondent's witnesses, also well-qualified licensed optometrists, in working with the examination. With the exception of the inconsistent score on Section 1, item #6, Petitioner failed to prove that he is entitled to a higher score on any portion of the examination, or that the examination itself was invalid or unfair.
Recommendation Based on the foregoing, it is hereby, recommended that Petitioner's final score on Section 1 of the clinical examination be adjusted to reflect full credit for Item #6; that he be permitted to retake Section 3 of the clinical examination; and that his remaining challenges to the examination be denied. RECOMMENDED this 29th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0700 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings 1.-2. Adopted in paragraph 2. 3. Adopted in substance in paragraph 20. 4.-6. Rejected as irrelevant. Adopted in summary in paragraph 2. Rejected as contrary to the evidence. Finding of Fact #15 reflects the grades after adjustment. Rejected as unnecessary. Adopted in paragraph 1. Rejected as unnecessary. Rejected as irrelevant. This fact does not make the examination invalid so long as it fairly evaluates the qualification of the applicant. 13.-14. Rejected as statements of statutory language rather than findings of fact. Respondent's Proposed Findings The Hearing Officer is unable to find where in the record the exact final score of Petitioner is reflected. Adopted in paragraph 1. Rejected as restatement of testimony rather than findings of fact. 4.-5. Rejected as unnecessary. 6.-15. Rejected as restatement of testimony; summary statements, or argument, rather than findings of fact. COPIES FURNISHED: David R. Ness 611 Poinsettia Avenue Titusville, FL 32780 Vytas J. Urba, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Patricia Guilford, Exec. Director Dept. of Professional Regulation Board of Optometry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue The issue in this case concerns whether Respondent violated Section 484.014(1)(f), Florida Statutes, in the manner alleged in an administrative complaint and, if so, what penalties should be imposed.
Findings Of Fact Respondent is, and at all times material has been, a licensed optician in the State of Florida, having been issued license number DO 2390 on November 29, 1984. At all times material, Respondent has operated, or has assisted in the operation of, a business named Fast Eyes Optical, located at 8246 Jog Road, Boynton Beach, Florida 33437. On or about January 3, 2002, customer R.S., accompanied by a friend (L.E.), visited Fast Eyes Optical, where they were attended by Respondent. Both R.S. and L.E. decided they would each buy a pair of Oakley sunglasses. Respondent quoted an initial price of $634.00 per pair for the Oakley sunglasses with prescription lenses. Ultimately, Respondent agreed to sell the Oakley sunglasses for $500.00 per pair. At the time in question, the Oakley sunglasses came from the manufacturer with non-prescription lenses made from a material known as polycarbonate. Polycarbonate lenses are noted for being impact resistant. Polycarbonate lenses are more impact resistant than lenses made of a plastic material known as CR-39. Polycarbonate lenses are particularly desirable for people who frequently engage in sports or otherwise lead a very active lifestyle in which they are at greater risk of some form of impact to their eyewear. Plastic lenses made from CR-39 have better optical characteristics than polycarbonate lenses, and, from a visual acuity point of view, are a better choice material than polycarbonate. R.S. wanted to have prescription lenses in his new Oakley sunglasses. Respondent told R.S. that Respondent could put prescription lenses in the new Oakley sunglasses that would duplicate the prescription in the glasses R.S. was wearing when he came into the store, but that he would have to send off for the prescription lenses for the Oakley sunglasses. It was ultimately agree that Respondent would obtain prescription lenses for the new Oakley sunglasses and that when the new sunglasses were ready, Respondent would mail them to R.S. at R.S.'s home in Ohio.1 Using a device called a lensometer, Respondent examined the glasses R.S. was wearing when he came into the shop and determined the prescriptions that were in the lenses in those glasses. Respondent ordered lenses for the Oakley sunglasses that matched the prescriptions in the glasses R.S. was wearing that day. While R.S. was still in the shop, Respondent explained to him that Oakley did not (at that time) make prescription lenses for the frame model R.S. was buying, that the prescription lenses for the sunglasses would not be Oakley lenses, and that the lenses would be made from a plastic material called CR-39 because Respondent thought CR-39 was a better choice lens material in view of the purposes for which R.S. was buying the sunglasses.2 In due course Respondent mailed a pair of Oakley sunglasses to R.S. in Ohio. Shortly after receiving the sunglasses, R.S. went on a trip to Mexico. While in Mexico, and while wearing the sunglasses he had received from Respondent, R.S. fell down at least three different times at the same place on the same set of stairs in the same Mexican restaurant. His last fall on those stairs caused R.S. to have a bruised chin, a bruised wrist, and a broken big toe on his left foot.3 Shortly after returning from his trip to Mexico, R.S. went to an optician in Ohio and asked the Ohio optician to examine the Oakley sunglasses he had purchased from Respondent. Upon examining the sunglasses made by Respondent, the Ohio optician communicated the following conclusions to R.S.: The right lens in those sunglasses did not match R.S.'s prescription, the lenses were made from CR-39 plastic material, and the lenses were chipped.4 On March 14, 2002, the Ohio optician sold R.S. a pair of prescription polycarbonate lenses in his correct prescription for his Oakley frame, and replaced the plastic lenses that Respondent had originally placed in the Oakley frame. The Ohio optician charged $321.00 for the new lenses. The polycarbonate lenses sold by the Ohio optician were not Oakley lenses. Not long after his visit with the Ohio optician, R.S. communicated with Respondent and complained about the things the Ohio optician had told him were wrong with the lenses furnished by Respondent. Respondent told R.S. that R.S. should mail the sunglasses to Respondent and Respondent would correct any problems with the sunglasses. R.S. refused to send the sunglasses back to Respondent because he no longer had any confidence in Respondent. Instead, R.S. asked Respondent to send him a refund of approximately $300.00 to cover the cost of the lenses R.S. bought from the optician in Ohio. Respondent refused to send a refund to R.S., but repeated his offer to make any necessary corrections to the sunglasses. Respondent has a policy of not giving refunds to customers, but Respondent also has a policy of doing whatever is necessary to correct any problems with any of the products he sells.5
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Opticianry enter a Final Order concluding that the violations charged in the Administrative Complaint should be dismissed because the evidence is insufficient to prove the violations alleged by clear and convincing evidence. DONE AND ENTERED this 1st day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2004.
The Issue The issue in this case is whether Petitioner is entitled to receive a passing grade on her optometry examination.
Findings Of Fact Petitioner took the optometry licensure examination on September 22-24, 1991. Following review of her initial scores, Respondent informed her by notice dated February 22, 1991, that she earned 100 points on Florida law and rules, which was a passing grade; 52.5 points on pharmacology and ocular diseases, which was below the minimum passing grade of 70; and 77 points on clinical, which was below the minimum passing grade of 80. Petitioner challenged her grades on the pharmacology and ocular diseases and clinical portions of the examination. However, at the beginning of the hearing, shedropped her challenge to the pharmacology and ocular diseases portion of the examination. The clinical portion of the examination is divided into two sections. In the first section, the applicant sees a "patient." Two examiners watch and listen as the applicant examines the "patient," who is unknown to the applicant and has been prepared with certain information. The applicant is graded under various areas within the broad categories of case history, visual acuity, pupillary exam, confrontation visual fields, and extra-ocular muscle balance assessment. In the second section, the applicant brings with him to the test site his own "patient." Two examiners, who are different from the examiners for section one, evaluate the applicant's ability to use various types of clinical equipment on his "patient." In the first section, Petitioner challenged the grades that she received for Questions 6, 8-10, and 11, which are all worth two points except for Question 10. Question 10 is worth four points. In the second section, Petitioner challenged the grades that she received for Questions 1-4, which are all worth five points, except for Question 4. Question 4 is worth four points. Any combination of additional points adding up to two or more would give Petitioner a passing grade on the pharmacology and ocular disease portion of the examination. As noted below, Petitioner received partial credit for certainanswers. Each of the four examiners completed a scoresheet while grading Petitioner. When no or partial credit was awarded, the examiner would write comments explaining what the problem was. Testifying for Respondent at the hearing, a licensed optometrist, who was one of the examiners of Petitioner for section two, explained adequately each of the scores awarded Petitioner for each of the challenged questions. He established that the equipment was carefully calibrated prior to each test session and for each individual applicant. A psychometrician employed by Respondent also testified that she had analyzed the variance of the scores among the examiners, in terms of overall scores for all applicants, and found no variances tending to discredit the grades. The challenged questions and clinical procedures provided a reliable measure of an applicant's relevant ability, knowledge, and skill. Petitioner's grades were a fair evaluation of her performance on the challenged questions.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Optometry enter a final order dismissing Petitioner's challenge to her scores in pharmacology and ocular diseases and clinical portions of the September, 1990, optometry licensure examination. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of June, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792 Chidiebere Ekenna-Kalu P.O. Box 621507 Orlando, FL 32862-1507 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792
The Issue Whether Porter failed to display his license prominently and permitted his license to be used by an unlicensed person when Porter was not present.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Board suspend the license of Stanley T. Porter for a period of sixty (60) days. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1978. COPIES FURNISHED: Thomas Lang, Esquire Suite 302 801 North Magnolia Avenue Orlando, Florida 32803 Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida
The Issue This cause arose as an action pursuant to Section 120.56(2), Florida Statutes, challenging the validity of the amendment to Rule 59U-16.002(2), Florida Administrative Code, proposed and published by the Board of Opticianry on February 14, 1997. The issues are: Do Petitioners have standing to bring this rule challenge? Is the following proposed amendment of Rule 59U- 16.002(2), Florida Administrative Code, an invalid exercise of delegated legislative authority, pursuant to Sections 120.52(8)(c) and (8)(e), Florida Statutes? A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. (Amended language underlined) Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?
Findings Of Fact All persons seeking to be licensed as opticians in Florida must first pass a minimal qualifications licensure examination. Before being qualified to sit for this examination, one of the following courses of preparation provided in Section 484.007, Florida Statutes, must be met. In relevant part, this section provides that one must have (1) received an associate degree, or its equivalent, in Opticianry from an accredited educational institution; (2) be an individual who is licensed to practice the profession of Opticianry in another state, territory, or jurisdiction, who has actively practiced for more than three years; or (3) come from a state or jurisdiction which is not licensed and have actively practiced in that state, territory, or jurisdiction for more than five years immediately preceding application; or (4) be an individual who has completed an apprentice program consisting of 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the law of this state. Respondent Board of Opticianry published on February 14, 1997 a proposed change to Rule 59U-16.002(2), Florida Administrative Code, as set out below. The underlined language is the only substantive change: 59U-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: No change. A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. Specific Authority - 484.005 F.S. Law Implemented - 484.007(1)(d)4. F.S. The parties' Amended Prehearing Stipulation agreed that, Petitioners did not request a public hearing pursuant to the Florida Administrative Weekly notice. A Notice of Additional Public Hearing scheduled for May 16, 1997, was published on April 18, 1997, Volume 23, No. 16, Florida Administrative Weekly. At that hearing, the Board of Opticianry discussed and approved an amendment to proposed amendment to Rule 59U- 16.002. At formal hearing, counsel for the Board represented that the Board had voted to amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out of state prior to passing the Florida Opticianry licensure examination from acting as sponsors of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until a Final Order is entered on the instant challenge. The Board's position was that this vote did not constitute a stipulation of invalidity, arbitrariness, capriciousness, or overreaching its statutory authority. According to the Board, this representation was made only because the Board would not be putting on evidence to support certain portions of the rule language, as published. Nonetheless, Sam Jones, licensed optician and Board member, testified, on behalf of the Board, that new Florida licensees from out of state could not properly sponsor apprentices for at least one year because they "need a little more exposure" to Florida laws and rules before teaching others and because some other states have no licensure criteria at all and no continuing education requirements. The Petition challenges the ability of the Board to require that opticians be licensed for at least one year prior to serving as apprentice sponsors, alleging that the Board lacks statutory authority to promulgate such a rule and that the proposed change is arbitrary and capricious and not based on appropriate factual or legal justification. Petitioner Lenscrafters, Inc. is a corporation that does business in the State of Florida, offering optical services and goods to the public. Lenscrafters hires employees to work as opticians, as well as hiring other unlicensed store employees. Petitioner Sanjiv Matta is Lenscrafters' Regional Trainer of Operations and apparently Lenscrafters' primary Florida employment recruiter. He also locates coaches for Lenscrafters' training programs. He has been a licensed optician in Florida for more than one year. He does not currently sponsor an apprentice. Lenscrafters and Mr. Matta allege that they will be substantially affected because the proposed rule amendment will reduce the number of available sponsors, which will in turn reduce the number of apprentices, which will in turn reduce the number of available employees now and the number of available licensed opticians in the future. As a subset of this alleged chain of unavailability of sponsors, apprentices, and employees generally, Petitioners claim great difficulty will arise in attempting to coordinate apprentice work hours with sponsor work hours. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores. Approximately 25 of the 200 opticians employed by Lenscrafters in Florida have been licensed for less than one year. These 25 were among the 60 new employees hired by Lenscrafters last year. Some of the licensed opticians Lenscrafters hires unilaterally elect to serve as sponsors to other employees who would like to obtain their opticianry license by completing an apprenticeship program. However, according to Mr. Matta, it would not be "integrity based" for Lenscrafters to urge or encourage optician employees to take on sponsorship. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ. Although Lenscrafters provides programs to help all its employees, including apprentices, achieve expertise in fitting and adjusting eyeglasses and provides situational training, equipment training, training tests, performance tests, and lending libraries, it has no specific apprenticeship program, as such, in place. Some of Lenscrafters' programs assist apprentices in attaining credit hours towards licensure. Some supplement the apprentice program requirements. The primary purpose of Lenscrafters' programs is to educate and train its employees for servicing its customers. The ultimate testimony of Mr. Matta that there currently are three opticians employed by Lenscrafters who have been licensed in Florida for less than one year and who are also currently serving as sponsors was anecdotal at best and at worst was speculative and self-contradictory of prior testimony. Lenscrafters currently has 66 apprentices in its employ in Florida. Pursuant to Board rules, each sponsor may oversee two apprentices and any apprentice may have both a primary and a secondary sponsor. Credit hours in the apprentice program are only earned when the apprentice works under a sponsor's supervision. Board rules would permit Lenscrafters' 200 opticians to sponsor 400 apprentices if each licensee had two apprentices. The proposed change in the rule would allow 175 Lenscrafters' opticians to sponsor 350 apprentices. Simple mathematics shows that Lenscrafters has between 33 and 66 optician employees who serve as apprentice sponsors, primary or secondary. Clearly, Lenscrafters currently employs many more non-sponsors than sponsors. Section 484.011, Florida Statutes, allows any employee of an optician to perform any of the functions an optician performs, as long as the acts are performed under the direct supervision of the optician. Lenscrafters allows apprentices to perform more tasks than other unlicensed employees. Lenscrafters considers apprentices to have greater expertise, employee commitment, and career commitment than other unlicensed employees. Lenscrafters pays apprentices more than other unlicensed employees. Lenscrafters and Mr. Matta believe that apprentices who have worked in Lenscrafters' stores and trained on Lenscrafters' equipment will eventually provide a pool of trained opticians for hire or promotion. However, Lenscrafters submitted no statistical data to confirm this "belief" expressed by Mr. Matta, and based on the ratio of available sponsors to apprentices which was developed at formal hearing, this "belief" constitutes pure speculation. It could be just as beneficial for Lenscrafters to train non-apprentices at a lower salary. Intervenor Odette Gayoso has been involved in opticianry for 15 years. She has an Associate of Arts (AA) degree in Optical Science and has been licensed as an optician in Puerto Rico since 1991. Ms. Gayoso is employed as an optician by Lenscrafters. She has been a licensed optician in Florida since December 1996. Therefore, at the time of formal hearing, she had been Florida- licensed for less than one year. Under the proposed rule amendment, she would be unable to act as a sponsor for five more months. Ms. Gayoso does not sponsor an apprentice currently, although the current rule permits her to do so. She has never applied to be a sponsor. No apprentice currently wants her as a sponsor. In the past, two Lenscrafters employees needed sponsors, but both left Lenscrafters' employ before any agreements concerning sponsorship were reached. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing. Mr. Matta and Ms. Gayoso testified that they recruit for Lenscrafters. Ms. Gayoso is an assistant retail manager in a single store. Mr. Matta recruits state-wide. Only Mr. Matta testified that, in his experience, there is a shortage of qualified opticians available to be hired. Only Mr. Matta testified that due to the Board's rule requirement of direct supervision it was difficult for him to match apprentices' work hours with those of their sponsors. Ms. Gayoso did not corroborate Mr. Matta's perception that it is difficult to match apprentices' work hours with those of their sponsors. Although she could see how that could be, it apparently was not a problem in her store where the optician/manager sponsored two apprentices and where another optician who had been employed less than 90 days was prohibited by Lenscrafters from acting as a sponsor. The fact that Lenscrafters prohibits some of its licensed opticians from sponsoring apprentices undermines Lenscrafters' position that the proposed rule change alone would undermine apprentices locating willing sponsors. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment. The Board office receives approximately 86 calls about the apprenticeship program each month. The Board has never received a call concerning a prospective apprentice's inability to find a sponsor. There are currently approximately 2,500 actively licensed opticians in Florida. Of these 2,500 licensees, 174 were licensed last year. This number of annual new licensees has stayed relatively stable for many years. Of 544 current apprentices in Florida, only 27 currently have sponsors of less than one year licensure. The statistics show that many more potential sponsors are available both state-wide and within Lenscrafters' Florida operation than there are those who want to be apprentices. Under the current rule, only those licensees who are currently under disciplinary action are precluded from being sponsors. Under the proposed rule, and excluding any disciplinary concerns, only the 174 new admittees could not be sponsors for one year. A year later, those 174 could become sponsors. So in effect, the only licensees who could not be sponsors each year are the newest licensees, while each year the total number of potential sponsors grows respectively. Of course, the number of eligible physicians and optometrists who could also serve as sponsors would not fall below the current number and would continue to grow respectively year by year. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year. Approximately half of the successful opticianry licensure examinees come from the AA program, and half come from the apprentice program. There is a 90 percent first time pass rate on the examination. The number of apprentice program examinees who fail on both the initial examination and "retake" examinations is higher than for AA degree holders. Since 1991, the Board has been concerned that the apprenticeship route has not been adequately educating future opticians and ensuring the safety of their public practice after licensure even if they were being adequately prepared to pass the standardized minimal qualifications examination. The Board consulted no empirical data for formulating its rule as published, but it held between nine and 12 Board meetings which included discussions on upgrading the apprenticeship program. Board members reported information from nationally recognized professional associations and reviewed a national trend whereby more states are requiring licensure and more states are phasing out apprenticeship programs. Some Board members took the minimum qualifications licensure examination so that they could understand what was involved and how the examination could be improved and report back to the Board. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted. These Board meetings were open to the public and solicited public input. Some were referred to as "workshops," although they might not meet the generally understood Chapter 120, Florida Statutes, definition of "workshop." In 1996, a bill to amend Chapter 484, Florida Statutes, so as to require optician licensees to have three years of licensure before becoming sponsors did not pass into law. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination. Sam Jones was one of the Board members who retook and passed the current licensure examination. On behalf of the Board, he stated that the teaching of how to pass the licensure examination did not equate with teaching the practice of opticianry. In drafting the rule challenged herein to apply to all new optician licensees regardless of which of the four alternative routes they had taken to licensure, the Board viewed the new one-year requirement as constituting an internship akin to the internship required of other health care professionals. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor. In not applying the one-year requirement to physicians and optometrists, but only to opticians, the Board considered that licensed physicians and optometrists already had clinical experience in excess of licensed opticians. The parties stipulated that the Board is authorized to make such rules as are necessary to protect the health, safety, and welfare of the public as it relates to the practice of opticianry and is authorized, "to establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the Board."
Findings Of Fact Petitioner is an applicant for licensure as an optometrist in the State of Florida. He received a Bachelor's Degree in Biology from Youngstown State University in 1985. In 1989, Dr. Martuccio graduated from the Ohio State University College of Optometry where he had followed a four-year course of study prior to receiving his optometry degree. Dr. Martuccio has been practicing optometry in Ohio since 1989. When Dr. Martuccio took the 1989 optometry examination for licensure in Florida, he received a passing grade on the written portion of the examination but not on the clinical portion. That passing grade on the written examination remained valid when he took the 1990 optometry exam. Therefore, in 1990 Dr. Martuccio only had to repeat the clinical part of the examination. Dr. Martuccio received lower than a passing grade on that clinical examination. For the clinical examination, an applicant is required to bring his or her own "patient." The clinical examination is conducted by having a candidate perform procedures requested by the examiners on the "patient." The clinical portion of the optometry examination is divided into two sections. On Section 1 an applicant can receive a possible score of 48 points. Dr. Martuccio received a perfect score of 48 points on that Section. The total passing grade for Section 1 and Section 2 is 80 points. Therefore, Dr. Martuccio needed to receive a total of 32 points out of a possible 52 points on Section 2. However, the grades given to Dr. Martuccio on Section 2 totaled only 27.5. His total score for the clinical portion of the 1990 optometry exam was, therefore, 75.5. Section 2 of the clinical examination is divided into 16 different procedures. Each of the 16 procedures has a maximum score that varies depending on the weight given to the procedure. The grading is done by two examiners who are practicing optometrists. If both examiners agree, the candidate either receives no credit or full credit depending on whether they considered him to have properly performed the procedure requested. If they disagree, the candidate is given one-half of the possible points on that procedure. Dr. Martuccio has challenged the scores he received on four of the procedures in Section 2 of the September, 1990, clinical exam. Those four procedures, in the order in which they were performed, are: BIO 2 (Binocular Indirect Opthalmoscope), Anterior Biomicro 4 (Anterior Biomicroscopy), Anterior Biomicro 9 (Anterior Biomicroscopy), and Gonio 15 (Gonioscopy). In Binocular Indirect Opthalmoscope 2 Dr. Martuccio was required to show a clear view of the fundus (back of the eye). The back of the eye is visible through the dilated eye by means of a binocular headpiece worn by the candidate and a hand-held lens, which are focused together. This procedure is very simple to perform. It is a procedure which he has been doing since "day one in optometry school," and which Petitioner performs daily in his private practice. One of the graders who evaluated Dr. Martuccio's performance on BIO 2 indicated that he performed the procedure properly, but the other grader indicated that his demonstration was "out of focus". Dr. Martuccio's sight is perfect in both eyes, and he is capable of detecting whether an image is out of focus. Since the "patient" did not move during the examination process, then one of the graders made a mistake in his evaluation. Dr. Martuccio correctly performed BIO 2, and he should receive 2.5 additional points for that procedure. The next procedure in dispute is Anterior Biomicroscopy 4, which was worth a total of four points. The two graders disagreed as to whether Dr. Martuccio properly performed the procedure, and he, therefore, received only two points. This procedure required him to display the corneal endothelium. To do that, Dr. Martuccio used a slit lamp which is an instrument that projects a beam of light into the patient's eye. One grader gave Dr. Martuccio full credit for this procedure. The other gave no credit, commenting that Dr. Martuccio used an optic section rather than a parallelpiped. There is an elementary and fundamental difference between a parallelpiped and an optic section of light projected from a slit lamp. The slit lamp has a separate adjustment that determines the width of this beam of light. Since Dr. Martuccio did not change the width of the beam of light after he began the procedure, that width did not change between the time the first examiner and the second examiner evaluated his work. One of the examiners was mistaken in grading Dr. Martuccio's performance, and Dr. Martuccio was scored incorrectly on this procedure. For Anterior Biomicroscopy 9, Dr. Martuccio was instructed to focus on the anterior vitreous, part of the gel-like substance in the middle of the eye. In some patients vitreous strands are present and may be visible during the examination. However, in healthy patients vitreous strands are not present and the anterior vitreous is extremely clear. In those situations, the beam of light from the slit lamp will have nothing from which to reflect. Dr. Martuccio utilized the standard method of examining the anterior vitreous by focusing the instrument on the back of the lens, which is immediately adjacent to the beginning of the anterior vitreous. The focus is then projected inward, into the eye, which will automatically set the focus within the anterior vitreous. Dr. Martuccio's patient had no vitreous strands, protein particles, or other objects in his anterior vitreous. Thus, there was an absence of particles which would reflect light back to the observer from the subject. The examiner who gave Dr. Martuccio no points for this procedure noted, as his explanation, that vitreous strands were not visible. However, as explained by Dr. Martuccio and corroborated by the Department's expert witness, that was an inappropriate comment if the patient had no vitreous strands. Since the examiner's comments were inappropriate, indicating he used an erroneous criterion, Dr. Martuccio was given an incorrect score on this procedure. Instead of two points, he should have received the full four points. The last procedure in issue is Gonio 15. This was worth a total of four points for which Dr. Martuccio received only two. This process requires a gonioscope to be placed on the patient's eye, in much the same fashion as a contact lens is placed on the eye. Once the gonioscope is placed, a mirror inside this instrument allows the optometrist to examine structures of the eye at a sideways angle and see portions of the eye which are not visible by looking straight into the eye. Dr. Martuccio installed the gonioscope properly and adjusted it so that the structures in question were clearly visible. He received full credit from one of the examiners but no credit from the other examiner whose comment was that the structures were "out of focus". It is unreasonable to believe that Dr. Martuccio did not keep the structures of the eye in question in focus during this examination. He was able to perform all of the procedures easily, without any delays, and had no problem doing all the procedures in the allotted time, which was relatively brief. Dr. Martuccio's "patient" was an ideal subject who did not move in any fashion so as to cause the focus to change for any of these procedures. Further, Dr. Martuccio is knowledgeable about structures of the eye and the use of all of the instruments involved in this case. He has had extensive training and experience in these areas not only through his formal education in optometry, but also due to the fact that Dr. Martuccio has been in private practice for over two years, using these instruments on a daily basis. Considering that Dr. Martuccio has perfect vision in both eyes, it is difficult to conceive that he could not keep his instruments in focus for the few seconds it took for both examiners to review his work. The Department's expert witness, Dr. Chrycy, characterized the procedures that are called for in Section 2 of the clinical examination as being fundamental and relatively simple. Candidates who cannot perform these functions are clearly unqualified to be an optometrist. Dr. Chrycy expects all graduates of optometric school to be able to keep images in focus. Dr. Martuccio has been licensed in the State of Ohio for over two years and has recently been licensed in the state of Pennsylvania. He passed the National Board examination which is recognized in at least 10 states for licensure. Both the National Board and the Ohio licensure examinations have clinical components similar to Florida's. Dr. Martuccio passed both of those clinical examinations on his first attempt. When considered in light of Dr. Chrycy's characterization that the examination tests fundamental, basic ability and is not difficult, one cannot accept the proposition that Dr. Martuccio was fairly graded in this examination process. The general passing rates that candidates taking the Florida optometry exam have experienced since 1986 are quite low. In 1987, only 51% of those taking the clinical portion of the examination passed; in 1988, 59%; in 1989, 57%, and in 1990, 53%. The overall pass rate for the entire exam is even lower: in 1987, only 30%; in 1988, only 42%; in 1989, only 45%, and in 1990, only 34%. If taken literally, these scores mean that the typical applicant for licensure as an optometrist in Florida is incompetent at using the basic, everyday instruments employed by optometrists and by optometric technicians and is incapable of identifying the different parts of the eye. Such a conclusion is without credibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered awarding to Petitioner 8.5 additional points on the clinical portion and finding that Petitioner achieved a passing score on the September, 1990, optometry examination. RECOMMENDED this 13th day of November, 1991, 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 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2354 Respondent's proposed findings of fact numbered 1-3 have been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 5 and 7 have been rejected as being irrelevant to the issues under determination herein. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Diane Orcutt, Executive Director Department of Professional Regulation/Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination in this case is whether Respondent's license to practice medicine in the State of Florida should be disciplined for disseminating, or causing the dissemination of an advertisement that was false, deceptive or misleading in violation of Rule 59R-11.001, Florida Administrative Code, and Section 458.331(1)(x), Florida Statutes.
Findings Of Fact Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with the statutory authority under Chapter 458, Florida Statutes, to regulate the practice of medicine. Respondent, JONATHAN M. FRANTZ, M.D., is and at all material times has been, a licensed physician in the State of Florida, having been issued license number ME 0054884. Respondent graduated from the University of Miami School of Medicine in 1983, and thereafter entered a residency program in Opthamology at the Louisiana State University Eye Center in New Orleans, Louisiana, where from 1987 to 1989 Respondent was a Fellow in Cornea, External Disease, and Refractive Surgery. During his Fellowship at the Louisiana State University Eye Center, Respondent participated in the initial research projects involving the Excimer Laser Procedure, which at that time was exclusively an investigational device. The term "investigational device" is a technical term used by the Food and Drug Administration (FDA) and medical researchers. The term means that a device has yet to be approved for treatment of human patients by the FDA and that its use is limited by the FDA to research investigations. The Excimer Laser is a device that projects a wavelength of light over the surface of the cornea to treat nearsightedness and astigmatism. The wavelength of light removes irregularities on the surface of the cornea or anterior corneal tissue in order to change the refraction of the eye and improve the patient's eyesight. At all material times, the Excimer Laser was an investigational device. Radial Keratotomy is, and at all material times was an FDA approved procedure for the treatment of nearsightedness and astigmatism. The Excimer Laser procedure differs from Radial Keratotomy in that Radial Keratotomy is a procedure in which incisions are made to the corneal tissue itself. The incisions allow for the flattening of the center of the cornea, and thus, unlike the Excimer Laser, actually change the structure of the cornea. During his Fellowship, Respondent participated in primate and human research involving the Excimer Laser, and assisted in the development of protocols for use in the first treatment of human patients with the device. Respondent received a research award from the National Eye Institute for his investigative work with the Excimer Laser. Respondent has published several articles in medical literature relating to the Excimer Laser. Respondent is certified by the American Board of Opthamology, and is a member of the American Academy of Opthamology. After completion of his Fellowship, Respondent entered private practice in Ft. Myers, Florida. While in private practice, Respondent continued his research work with the Excimer Laser. In 1990, Respondent was selected as one of a small group of physicians to conduct Excimer Laser investigational treatments on patients. As a principal investigator, Respondent treated patients with all degrees of nearsightedness and astigmatism. In May of 1993 Respondent was employed by Eye Centers of Florida located in Ft. Myers, Florida. Respondent performed Excimer Laser investigational procedures while so employed. At this time, the Excimer Laser procedure was also being performed by Dr. James J. Rowsey, Jr., Chairman of the Department of Opthamology at the University of South Florida in Tampa, Florida. The Excimer Laser procedure performed at the University of South Florida offered a different protocol than that offered by Respondent at the Eye Centers of Florida. Respondent was the only Opthamologist in Florida offering Excimer Laser procedures for patients with all degrees of nearsightedness and astigmatism, as well as offering Radial Keratotomy. In addition to his expertise in Opthamology, Dr. Rowsey has extensive expertise in the area of ethical medical advertising. On May 23, 1993, the following advertisement was published in the Charlotte Sun Herald, a Florida newspaper: Jonathan M. Frantz, M.D., corneal specialist with the Eye Centers of Florida, invites you to join him for an exciting lecture on the newest breakthroughs in eye surgery - the Excimer laser and Radial Keratotomy (RK). Eye Care Centers of Florida is the only eye care center in Florida that offers both options. Come to our free seminar and find out how you can reduce your need for glasses or contact lenses. EXCIMER LASER RADIAL KERATOTOMY THE CORRECTION OF NEARSIGHTEDNESS AND ASTIGMATISM FREE ADMISSION AND SCREENING FOR EXCIMER LASER AVAILABLE PLEASE BRING GLASSES AND/OR CURRENT EYE GLASS PRESCRIPTION WEDNESDAY, MAY 26 7:00 PM FIRST FEDERAL BANK BUILDING 3524 D TAMIAMI TRAIL (SECOND FLOOR) PORT CHARLOTTE RESERVATIONS 1-800-226-3377 OR 1-813-939-3456 EYE CENTERS OF FLORIDA Helping You See Your Best 4101 Evans Avenue Fort Myers, Florida (Caution: The Excimer Laser is an Investigational Device. Limited by Federal Law to Investigational Use.) The advertisement also contained Respondent's picture, and the logo for the Eye Centers of Florida. The advertisement was composed by a marketing agency retained by the Eye Centers of Florida. Respondent was generally aware of the contents of the advertisement, but did not give specific approval for the placement of the advertisement. Respondent was aware that the advertisement of the Excimer Laser required cautionary language stating that the procedure was an investigational device limited by the FDA. The advertisement clearly states that the Excimer Laser is an investigational device limited by the FDA. The advertisement is a public invitation to attend a lecture given by Respondent concerning the Excimer Laser and Radial Keratotomy. At the lecture, Respondent explained that the Excimer Laser was an investigational device. Thereafter a person seeking Excimer Laser treatment was given a consent form that explained in detail the investigatory nature of the procedure. As a principal investigator Respondent was limited in the number of patients he could treat with the Excimer Laser. Respondent received an economic benefit from the treatment of patients with the Excimer Laser. As a result of the investigational efforts of Respondent and other medical researchers, the Excimer Laser was proved to have beneficial results in the treatment of nearsightedness and astigmatism. Subsequent to the publication of the advertisement, the Excimer Laser received FDA approval. The advertisement was reviewed by Norman S. Levy, M.D., Ph.D., an Opthamologist, and Director of the Florida Opthamologic Institute in Gainesville, Florida. As an expert in Opthamology, Dr. Levy opined that the advertisement published in this case was deceptive in that the advertisement implied that the Excimer Laser and Radial Keratotomy procedures were equally available, and the experimental nature of the Excimer Laser procedure was not clear from the advertisement. The advertisement was also reviewed by Dr. Rowsey, who opined that the advertisement was not misleading or deceptive, that the advertisement clearly contained cautionary language stating that the Excimer Laser was at that time an investigational device, and that the advertisement was merely a public invitation to a lecture to obtain more information regarding these procedures. In this respect, Dr. Rowsey has specific and extensive experience with the Excimer Laser, as well as in medical ethics, and his opinion on this issue is deemed more credible. There is no evidence that a patient of the Respondent's was deceived or mislead by the advertisement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner, the AGENCY FOR HEALTH CARE ADMINISTRATION, enter a final order dismissing the Administrative Complaint filed against Respondent JONATHAN M. FRANTZ, M.D., in the above-styled case. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of January, 1996. RICHARD HIXSON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3773 Petitioner's Proposed Findings of Fact. 1.-6 Accepted and incorporated. Rejected to the extent that Respondent personally approved the advertisement. Rejected to the extent that a lay person could be misled. Rejected as not supported by the weight of evidence. Respondent's Proposed Findings of Fact. 1.&2. Accepted and incorporated. 3. Rejected as irrelevant. 4.-.7. Accepted and incorporated. 8.&9. Rejected as not necessary. 10.-12. Accepted and incorporated. 13. Rejected as not necessary. 14.-16. Accepted and incorporated. 17. Rejected as not necessary. 18.-26. Accepted and incorporated. COPIES FURNISHED: Joseph S. Garwood, Esquire AHCA - Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Lauro, Esquire Barnett Plaza, Suite 3950 101 East Kennedy Boulevard Tampa, Florida 33602
The Issue The charges against Dr. Morton J. Schomer allege the following factual violations: Failure to display his license at the location of his practice of optometry; Failure to have an entry sign at the location of his practice indicating he was an optometrist practicing optometry; Failure to have all equipment required in the office where he engaged in the practice of optometry; and Failure to perform all tests and record the results as required for two patients, Edward Leswing and Steven Bachen. Dr. Schomer was afforded the opportunity by the Board of Optometry for an informal conference to discuss the allegations. This conference was conducted. Dr. Schomer requested the Board for a formal hearing, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57, Florida Statutes. Prior to the formal hearing the Respondent moved to dismiss the proceedings and in support thereof asserted factual matters contrary to those alleged in the Administrative Complaint. Respondent asserted that he was working for Dr. Ortelio Olazabal, was under the doctor's control and supervision, and was not engaged in the practice of optometry. Therefore, Respondent asserted that he was not required to display his license or to have an entry sign, and the Board lacked jurisdiction over because his practice with Dr. Olazabal was governed by Chapter 458, Florida Statutes, Medical Practice Act. This motion presented what were essentially affirmative defenses. The motion was denied by an order dated November 19, 1980. Respondent was afforded the opportunity to present evidence in support of his factual assertions at the formal hearing. Respondent also moved for a continuance. This motion was also denied by the order mentioned above. Respondent moved for an order in aid of discovery. The order cited above provided specific dates for the parties to complete various portions of prehoaring discovery and disclosure. The parties were able to comply with the schedule established, and the formal hearing was begun on December 12, 1980. The hearing could not be completed on that date and was continued on February 25, 1981, after which the parties stipulated to submit proposed findings within 30 days. Motions for Directed Verdict by Respondent were made and denied at the close of Petitioner's case and at the conclusion of the hearing. Proposed findings of fact were filed by Respondent. Petitioner did not file proposed findings. The Hearing Officer has read the proposed findings of fact submitted by the Respondent. To the extent that the following Findings of Fact do not contain the proposed findings, they have been rejected as not being relevant to the issues or not being based upon evidence adduced at the hearing, or as being inconsistent with evidence which the Hearing Officer deems more credible.
Findings Of Fact Counts I, II and V Dr. Morton J. Schomer is an optometrist licensed by the Florida Board of Optometry for approximately the past five years. Until just prior to November, 1979, he was a practicing optometrist in Ohio. At that time he moved to Hallandale, Florida. Dr. Schomer responded to a newspaper advertisement by Dr. Ortelio Olazabal and was hired by Dr. Olazabal to work as an optometrist at 518 NE 167th Street, North Miami, Florida. Dr. Schomer practiced optometry at that address three days per week from late November, 1979, until February, 1980. During that time Dr. Schomer did not have his Florida license displayed and did not have an entry sign at that address indicating he was engaged in optometric practice. (Transcript, Volume II; December 12, 1380 - Page 236.) Count III In January of 1980, Dr. Schomer examined Edward Leswing, a 57-year-old male who is an investigator for the Department of Professional Regulation. Dr. Schomer used a keratometer and phoropter to examine Leswing's eyes together with a projector and eye charts. Dr. Schomer asked Leswing about his health and conducted a field test (Transcript, supra - Pages 242 and 254). Dr. Schomer prescribed soft contact lenses and reading glasses for Leswing based on this examination. Dr. Schomer accurately recorded or caused to be recorded the results of the examinations conducted and pertinent personal data. Dr. Schomer did not use a tonometer or retinoscope or perform an unaided visual acuity test on Leswing. (See Leswing's testimony and Dr. Michael Kondell's comments on Leswing's record, Dr. Kondell's Deposition - Pages 39 and 40.) In the opinion of Dr. Michael Kendell (Deposition - Page 59) Dr. Schomer's examination was insufficient to prescribe soft contact lenses for Leswing. Dr. Kondell is a physician specializing in ophthalmology. He is board eligible and is accepted as an expert in diseases of the eye and their treatment, and the examination of the eye for prescribing contact lenses and glasses. Count IV At the time Leswing was examined, Dr. Schomer used a keratemeter, a phoropter, and projector and eye charts, and these items were present in the office (Transcript, Volume II; December 12, 1980 - Pages 238 and 239). Dr. Schomer used his hands to conduct a field test (Transcript, supra - Page 254). At the time Leswing was conducting a covert investigation and did not ask Dr. Schomer to produce or identify any of the equipment present in the office. Dr. Schomer kept his hand-held equipment in a wooden box which he covered with a clipboard. Count VI Steven Bachen, a 14-year-old male, was seen by Dr. Schomer during January, 1980. Dr. Schomer accurately recorded or caused to be recorded the results of his examination of Bachen and his pertinent personal data. Dr. Schomer performed a keratometric and retinoscopic examination of Steven Bachen. (See Petitioner's Exhibit 12 and Deposition of Dr. Michael Kondell - Pages 36 through 38.) Dr. Schomer also used a phoropter to examine Steven Bachen's eyes (Transcript, Volume II; December 12, 1980 - Page 157). Dr. Schomer prescribed soft contact lenses for Bachen as a result of this examination. In the opinion of Dr. Kondell, Dr. Schomer's examination was sufficient to prescribe soft contact lenses for Steven Bachen (see Dr. Michael Kondell's Deposition - Pages 43 and 58). Count VII During the examination of Steven Bachen, Dr. Schomer used a phoropter, keratometer, projector and charts, and retinoscope. These items were present in the office. Count VIII At the time Dr. Schomer examined Steven Bachen he conducted a keratometric examination of Bachen. Bachen's glasses were removed when this examination was performed. Count IX No evidence was introduced concerning prior violations of Chapter 463, Florida Statutes, by Dr. Schomer. The only evidence presented of violations of Chapter 463, supra, was with regard to Counts I through VIII above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law thee Hearing Officer recommends that Dr. Morton J. Schomer receive a letter of reprimand and be placed on probation for a period of one year, during which time his premises and records will be subject to examination by the Board of Optometry to ensure that he is in compliance with all applicable statutes and rules. DONE and ORDERED this 1st day of May, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1981. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael B. Udell, Esquire 2020 NE 163rd Street, Suite 204 North Miami Beach, Florida 33162 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
