Findings Of Fact The following facts are based upon the stipulation of the parties (Exhibit 1): Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Massachusetts in 1979. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Connecticut in 1980. Petitioner, KAREN G. THIBODEAU, was an apprenticed optician with various licensed opticians in the States of Massachusetts and Connecticut for the past four to five years. Petitioner, KAREN G. THIBODEAU, on or about May, 1980, while living and employed in Connecticut, made a telephone call to the Board of Opticians in the State of Florida, with reference to her eligibility in taking the examination for a dispensing opticians license. After Petitioner detailed her formal training and work experience, she was advised that she was qualified to take the Florida Opticians Examination as the result of her having been licensed in both the States of Massachusetts and Connecticut and having five years apprentice experience. The Board of Opticians then mailed her an application form which she filled out and returned to them with a seventy five dollar ($75.00) money order for the examination and twenty dollars ($20.00) to register with the State of Florida. As a direct result of this telephone conversation with a representative of the Board of Opticians of the Department of Professional Regulations of the State of Florida, the Petitioner, KAREN G. THIBODEAU, quit her job in Connecticut and moved to Florida anticipating taking the aforesaid examination. After she had moved to Florida in reliance of the representations made to her by the Board of Opticians, she was notified that she was not qualified to take the said examination. Petitioner's application was considered by the Board of Opticianry on July 10, 1981 in Tallahassee, Florida and it was found that the Petitioner, KAREN G. THIBODEAU, did not meet the statutory requirements of s. 484.007(1), Florida Statutes (1979), although at the time she contacted the Board, she did meet the requirements of s. 484.03, Florida Statutes (1977), which was the prior licensing statute for the Board of Opticianry and was no longer in effect at the time. The Board further held that they did not have the authority to admit Petitioner, KAREN G. THIBODEAU, into the examination .for licensure as an optician in the State of Florida since she did not qualify under the current statute, s. 484.007(1), Florida Statutes (1979), even if they felt she had relied on the Board's prior representations that she would be allowed to take the examination to her detriment. The sole issue for consideration at this hearing is whether the Board of Opticianry has the authority to allow the Petitioner, KAREN G. THIBODEAU, to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board of Opticianry is estopped for asserting the new statute as a denial of her right to sit for the next exam since she has detrimentally relied on their representation that her qualifications under the old statute, s. 484.03, Florida Statutes (1977), qualified her to sit immediately for said examination." The following are additional Findings of Fact based upon testimony adduced at the hearing: When Petitioner made her telephone call to the Board of Opticians in May, 1980, she asked to speak to one of the Board members, but was assured by a woman who answered the phone that she could answer any questions Petitioner might have concerning her qualifications. At this time, Petitioner informed the person taking the call that she planned to move to Florida if she was qualified to take the examination for a dispensing optician license. Petitioner thereafter moved to Florida and is now employed by Sheppard Optical at Delray Beach, Florida where she is earning $200.00 a week. She was making approximately $300.00 a week when she left Connecticut and anticipated a higher income when she commenced practicing under her opticians license in Connecticut. (Testimony of Petitioner) Prior to the consolidation of the various state licensing boards into the Department of Professional Regulation in 1979, the practice of the Board of Opticianry, under the apprentice requirements of Section 484.03, Florida Statutes, (1977) was to permit individuals who had apprenticed in another state, but not in Florida, for the specified time of not less than three years, to register with the Board, and then make application for and take the examination for licensure. This was frequently done by means of telephone calls authorizing the individual to make application. In some cases, letters were sent which contained a similar authorization. Subsequent to Petitioner's telephone call to the Board in May, 1980, the new Executive Director of the Board of Opticianry, Herbert F. Varn, changed this practice to conform to the applicable statute which requires individuals to register as an apprentice with the Board and not admit such individuals to examination until after they had thereafter completed the requisite three year period of apprenticeship. In some isolated cases, the Board had permitted individuals who had previously received a letter authorizing them to take the examination, even though they had not been registered in Florida for the requisite three year period, to take the examination. However, after reorganization, the Board did not permit individuals to take the examination based solely upon any oral assurances received from persons in the prior Executive Director's office. (Testimony of Varn) The order of the Board of Opticianry, dated September 2, 1981, denying Petitioner's application stated that she had not met the statutory requirements for licensure by examination pursuant to Section 484.067(1), Florida Statutes, because she had not completed the requisite two school year course of study in a recognized school of opticianry, had not actively practiced as a licensed optician in another state for more than three years preceding the application, and had not registered as an apprentice with the Department and served not less than a three year apprenticeship under appropriate supervision. The present Executive Director of the Board is of the opinion that there would be no detriment to the public if Petitioner was allowed to sit for the examination based on her prior training and experience, but acknowledges that this is a matter for Board determination. (Testimony of Varn, pleadings)
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS 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 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Prior to hearing, Respondent moved to dismiss the administrative complaint. This motion was granted in part and denied in part for the reasons stated in the order dated June 22, 1982. Those portions of the amended complaint asserting violation of Sections 484.03 and 484.09, Florida Statutes, were stricken by an order dated June 22, 1982, leaving only the allegation that the Respondent misrepresented material information on his application contrary to Section 484.014(1)(a), Florida Statutes. This was the only issue remaining for resolution at the hearing. Specifically, the factual dispute surrounded the representation by Respondent on his application that he had done his apprenticeship at House of Vision in South Hadley, Massachusetts, between 1973 and 1976. The Board of Opticianry asserted that the Respondent had not done his apprenticeship as he had represented. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Gilbert Rosenbrier, is a licensed optician under the laws of the State of Florida, holding License #DO 0001378 issued by the Board of Opticianry. On or about December 2, 1977, Respondent filed an application for admission to the licensure examination in ophthalmic dispensing with the Florida State Board of Dispensing Opticians (now Board of Opticianry). A copy of said application was received as Petitioner's Exhibit #2. Respondent's application contains a form for reporting experience in ophthalmic dispensing under a licensed optician, optometrist or physician. The Respondent completed such a form as follows: Print full name: Gilbert Rosenbrier Street Address: 7825 Red Road Miami FL Title of position held: Optician Employed in position from: Nov 1973 to August 1976 Print full name of employer: House of Vision Full address of employer: Mountain Farms Mall, So Hadley Mass Print full name of supervisor: Harry Marsh Full address of supervisor (if different from employer): Presently: 7825 Red Road, Miami Fl. 33143 Check the type of establishment or office: (applicant indicated) Ophthalmic dispensers Check the specific duties of applicant and give approximate time (in hours) engaged in each during a normal work week of approximately 40 hours: (Applicant indicated) Fitting and adjusting spectacles to human faces 15 hours; Interpreting prescriptions and verifying optical calculations 10 hours; Optical laboratory work (Manufacturing) 15 hours House of Vision was owned by Harry Marsh. Marsh sold it to Kent Whalen. Whalen worked for Marsh and House of Vision of Mountain Farms Mall in South Hadley, Massachusetts, from May of 1974, until Whalen purchased the business in late 1976. Whalen knew the Respondent as a neighbor of Marsh's but only saw the Respondent in the store on two occasions, late in 1976. Whalen stated that to the best of his knowledge Respondent was never an employee of House of Vision. The Respondent testified in his own behalf. He had become interested in opticianry in 1973 by virtue of his association with his neighbor, Marsh. At that time, Respondent had started working at House of Vision with Marsh at a time when the Respondent was supervisor of an educational consulting firm and could set his own hours. Marsh's store had to be open during the hours the mall was open, and Marsh needed the Respondent's help. In the spring of 1974, Respondent needed to spend more time with his business but still wanted to learn about opticianry. Marsh agreed to provide Respondent with optical equipment of the type used at the store, which Respondent placed in his basement, in exchange for Respondent's promise that the would invest money in a venture with Marsh at a later date. This equipment was used by Respondent to perform the shaping of lenses, assembly of frames, tinting of lenses, etc., under Marsh's supervision in the afternoons, on weekends, and during Respondent's other free time. In addition, Respondent would go to the store on weekends and help Marsh when Whalen was off. Marsh sold the store in November of 1976, and he and Respondent came to Florida, where Respondent did invest money in a joint venture with Marsh in the opticianry business. Witnesses who had known Respondent and had visited his home between 1973 and 1976, corroborated the fact that the Respondent had optical laboratory equipment in his basement during that time, had spent his spare time working with this equipment, and had made one of the witnesses a pair of glasses using frames picked out at House of Vision. Respondent did not spend his time doing a specific task while he was learning opticianry, but started with simple procedures such as tinting and assembling frames and progressed to making patterns for grinding lenses, shaping, and grinding lenses in his basement lab. He obtained his experience in fitting glasses and selling at the store prior to the spring of 1974, and after that date when he worked with Marsh on weekends. Respondent did not mention drawing a salary from Marsh but gave the impression that this time was traded to Marsh for Marsh's expertise in teaching him. The Respondent has a doctorate degree in an academic area and was engaged in academic work and consultant work for years prior to 1973.
Recommendation Having found that the statute under which the Board of Opticianry seeks to discipline the Respondent, Gilbert Rosenbrier, was passed after the alleged acts occurred upon which the complaint is based, it is recommended that the Board dismiss the amended administrative complaint and take no action. DONE and ORDERED this 3rd day of September, 1982, in Tallahassee, Florida, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of September, 1982. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lionel Barnet, Esquire Miller Square 13842 Southwest 56 Street Miami, Florida 33183 H. Fred Varn, Executive Director Board of Opticianry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of January, 1996.
Findings Of Fact At all times material to this proceeding, Respondent was and remains a licensed optometrist in the State of Florida, having been issued License No. 000595. Respondent's present address is 4636 North Dale Mabry, #619, Tampa, Florida 33614. The Respondent, prior to relocating his office to Tampa, Florida, practiced optometry in Tallahassee, Florida, in an office adjacent to the Pearle Vision Center in the Governor's Square Mall. He closed that office the last week of December, 1980. Treatment of Wendell Harrison The Respondent first saw Wendell Harrison on October 11, 1980. At that time, Respondent was offering a special of $59.00 for three visits which included an examination and prescription, contact lenses, and the fitting of those lenses. The first of the three visits was the initial examination and prescription. The second visit occurred after the patients received their lenses, and the third visit was a follow-up visit for the purpose of ensuring that the lenses were fitted properly and there were no problems. On October 11, 1980, Mr. Harrison was examined by Dr. Hunter and given a prescription for contact lenses. On that date, Mr. Harrison paid the Respondent $40.00 of the $59.00 total charge. On October 22, 1980, Mr. Harrison received his contact lenses and returned to the Respondent's office for his second visit. During that visit, he was shown how to insert the lenses and also saw a film on how to care for the lenses. At this time, he paid the $19.00 balance of the total charge of $59.00. Subsequent to the second visit, Mr. Harrison experienced blurred vision and pain, especially in his left eye. He returned to Dr. Hunter and informed him of the blurred vision and pain. Dr. Hunter made no examination of Mr. Harrison's eyes or the lenses and informed him the lenses would tighten up and that he should continue to wear them. Mr. Harrison continued to have problems and returned to Dr. Hunter's office the first week of January, 1981. The office was closed. Mr. Harrison did not recall seeing a sign in the window or door of the closed office, but was informed by someone employed at the Pearle Vision Center next door that Dr. Hunter had left and that a Dr. Ian Field was handling problems with Dr. Hunter's patients. Mr. Harrison then made an appointment to see Dr. Field. After an examination, Dr. Field told Mr. Harrison not to put the lenses back into his eyes and not to use them. Dr. Field wrote a prescription for new lenses and refitted Mr. Harrison with the new lenses. Mr. Harrison experienced only minor problems in getting used to the new lenses and had no problem with blurred vision with the new lenses. The prescription of the lenses prescribed for Wendell Harrison by Dr. Hunter was improper in that the lenses corrected the vision in his right eye to only 20/40 which is the minimum for driving a vehicle in Florida. The left eye was corrected only to 20/40 and three additional letters on the next line of the chart. The lenses were also improperly fitted to Mr. Harrison's eyes, and as a result, moved around too much and would ride up underneath the upper lids of his eyes. By letter dated February 3, 1981 (see Petitioner's Exhibit 3), Mr. Harrison contacted Dr. Hunter and requested a full refund of his $59.00 fee. Dr. Hunter responded by letter dated February 9, 1981 (see Petitioner's Exhibit 4) and refunded with that letter $9.00 of the $59.00 paid by Mr. Harrison. Treatment of Maureen Sue Woodward Sometime in the Fall of 1980, Maureen Sue Woodward visited the office of the Respondent in Governor's Square Mall for the purpose of an examination and fitting of contact lenses. On the first visit, Ms. Woodward was examined by Dr. Hunter and was given a prescription for contact lenses. She took the prescription next door to Pearle Vision Center to have the prescription filled. Ms. Woodward, on the first visit, was quoted a price of $75.00 for three visits and this is the amount she paid Dr. Hunter. The three visits were to consist of first, an examination and prescription, secondly, the actual insertion and instruction on care of the lenses, and lastly, a follow-up visit to make certain there were no problems. After she received her contact lenses, she returned to Dr. Hunter's office for instruction on how to insert them and care for them. She watched a film about the cleaning of the lenses. Following the second visit, she wore the contacts just as she had been instructed to wear them and began to experience problems. Her eyes were bloodshot, burning, and tearing as a result of the contact lenses. Ms. Woodward returned to Dr. Hunter's office a third time and explained the problems she was experiencing. Dr. Hunter performed no examination of her eyes or the lenses but told her she was not cleaning them properly. She returned home and continued to clean the lenses as prescribed in the written instructions she had been given by Dr. Hunter and continued to have the same problems of bloodshot eyes, tearing, and burning. Dr. Hunter had told her to come back if she had any further problems. When she returned to Dr. Hunter's office in early January, 1981, the office was closed and there was a note on the door of the closed office referring patients to Dr. Ian Field in the Tallahassee Mall. Her third visit with Dr. Hunter had been approximately a week earlier and he had not mentioned the possibility that he might be leaving Tallahassee. The only information given by the note on the door was that Dr. Hunter's patients were referred to Dr. Field. On January 7, 1981, Mrs. Woodward was seen by Dr. Ian Field. The contact lenses which had been prescribed by the Respondent had an improper prescription. Prescriptions for contact lenses are in plus or minus. A prescription at zero has no prescription at all and is clear glass. A nearsighted person needs something for distance and requires a minus prescription and a farsighted person requires a plus prescription. The power of both lenses prescribed by Dr. Hunter for Mrs. Woodward were more plus than they should have been. When Mrs. Woodward saw Dr. Field on January 7, 1981, she was continuing to wear the contacts prescribed by Dr. Hunter. She was also experiencing blurred vision and bloodshot eyes. Her right eye felt scratchy. Treatment of Barbara Magnusson Stathos The Respondent examined Barbara Magnusson Stathos and prescribed contact lenses sometime prior to September 29, 1980. The agreed fee was $59.00 for three visits and Ms. Stathos had her second visit with Dr. Hunter on September 29, 1980, after picking up her contacts. After receiving her contacts Ms. Stathos experienced problems and called Dr. Hunter's office. She spoke with Dr. Hunter at that time. She continued to have problems and when she returned to Dr. Hunter's office, he had left the area. Barbara Stathos was then seen as a patient by Dr. Walter Hathaway, an optometrist, on January l7,1981. She was using a liquid chemical method of disinfectant for the lenses Dr. Hunter had prescribed for her. Thirty to forty percent of the population has an allergic reaction to these particular chemical disinfectants. There were deposits and coatings on the lenses which had been prescribed for Barbara Stathos by Dr. Hunter. Dr. Hathaway replaced her lenses and switched her to a heat disinfectant method. This solved her problem. The problem of coatings and deposits on her lenses would not have corrected itself. Such a condition would have required an optometrist to correct it. Treatment of Marianne Topjian On December l2, 1980, Marianne Topjian was given a prescription by Dr. Hunter for contact lenses. Subsequent to December 12, 1980, she received her contact lenses. On January 8, 1981, Marianne Topjian saw Dr. Ian Field. She was having problems with the contact lenses prescribed by Dr. Hunter. These lenses had an improper prescription in that they did not correct her vision for close work. The lenses should correct for distance as well as close work. Standard of Care and Requirement for Due Notice The standard of care for optometrists in the Tallahassee community in 1980 and 1981 required proper follow- up care in order to ensure that contact lenses fit properly, that the prescription was proper, and that the patient was not experiencing any problems requiring correction by the optometrist. The follow-up care includes necessary examinations to determine the source of any problems being experienced by the patient. Some degree of follow-up care is required with every patient who is fitted with contact lenses by an optometrist. The standard of care in the Tallahassee community, as well as the nation, requires that when a physician leaves his practice and relocates to another community, he must give notice to his patients and make certain that patients under his active care are taken care of by another optometrist. The relocating optometrist must also make arrangements to make the records of his patients available to them. Neither Wendell Harrison nor Maureen Woodward were given notice by the Respondent that he was leaving Tallahassee and relocating elsewhere. Wendell Harrison and Maureen Woodward were under his active care at the time Dr. Hunter left Tallahassee, and no proper arrangements were made by Dr. Hunter for the follow-up care for the problems that these two persons had complained about. Dr. Hunter saw Maureen Woodward approximately one week prior to his departure, and he did not inform her that he was considering leaving Tallahassee. Prior to leaving Tallahassee, the only arrangements made by Dr. Hunter involved one phone call with a Dr. Orb who planned to move into Dr. Hunter's office in Governor's Square Mall. Dr. Orb agreed generally to take care of any of Dr. Hunter's patients, but no specific financial arrangement was made for such treatment and no specific patients experiencing current problems were discussed. Dr. Hunter did not know when Dr. Orb would be moving into the office, and there was no evidence that he called Dr. Orb in Tallahassee after his departure to determine if Dr. Orb was, in fact, caring for his patients. No arrangement at all had been made with Dr. Ian Field. The Respondent was negligent and fell below the standard of care in the community by failing to provide proper follow-up care to Wendell Harrison. The Respondent specifically failed to examine Mr. Harrison and take appropriate steps to determine the cause of the blurred vision and discomfort complained of by Mr. Harrison on his third visit Having been made aware by an active patient that the patient was having ongoing continuous problems with the new contacts, the Respondent failed to make arrangements upon his departure from Tallahassee to ensure that Mr. Harrison would receive the necessary care to correct his problems, if they continued. As a result of failing to provide proper follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Mr. Harrison. The Respondent was negligent and fell below the standard of care in the community in his treatment of Maureen Sue Woodward by failing to provide her with proper follow-up care after she was fitted with contact lenses by the Respondent. After Maureen Woodward complained of bloodshot eyes, burning and tearing, the Respondent did not perform an examination of her eyes or contact lenses in order to determine the cause of these problems. Having been made aware of these problems, he did not make proper arrangements upon his departure from Tallahassee to ensure that Ms. Woodward would receive the necessary follow- up care to correct these problems in the event that the problems continued. By failing to perform the appropriate examinations and to provide the appropriate follow-up care, the Respondent failed to diagnose and correct the improper prescription in the lenses received by Maureen Woodward. There was insufficient evidence to show that the Respondent breached any standard of care in the community with regard to his treatment of Marianne Topjian and Barbara Magnusson Stathos. Neither of these patients testified in the administrative proceedings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of Counts 6, 8, 9, and 11 of the First Amended Administrative Complaint and that he be required to pay an administrative fine of $1,000. It is further recommended that the Respondent be placed on probation for a period of six (6) months subject to such conditions as the Board deems appropriate to ensure that the Respondent is completely familiar with and follows the requirements for proper follow-up care with patients being fitted with contact lenses. It is recommended that Counts 1 through 5, 7, 10, and 12 through 16 of the Administrative Complaint be dismissed. DONE and ENTERED this 25th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Daniels, Esquire 127 East Park Avenue Tallahassee, Florida 32302 Ms. Mildred Gardner Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
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
Findings Of Fact Respondent John Thomas Beckum, a graduate of Bolles Military School and an alumnus of the University of Florida, is a second generation optometrist. His father was chairman of Florida's first Opticians' Board. In 1956, when he earned a B. S. degree and a doctorate of optometry at the Southern College of Optometry in Memphis, Tennessee, respondent graduated salutatorian. On July 31, 1960, respondent obtained his Florida optometrist's license. He worked for an older optometrist in Jacksonville, Florida, before he moved to Gainesville and began his own practice in 1961. It was also about that time he ceased to be a "formal member" (T. 350) of the Optometric Extension Program (OEP), but he has remained active in several other optometric organizations and has attended continuing education courses. He keeps up with the latest in new equipment in chats with the Gainesville ophthalmologist to whom he refers some of his patients. At the time of the hearing, respondent still practiced in Gainesville and held optometrist's license No. 668. He has been licensed by petitioner at all pertinent times. As a result of a complaint unrelated to this case, Ellen Williams, a program monitor in the medicaid office of the Department of Health and Rehabilitative Services (HRS) "requested a printout of [Dr. Beckum's] practice," (T. 85) and examined this computer compilation of information about medicaid claims respondent had submitted. In the period July 1, 1979, to June 30, 1980, Dr. Beckum saw 272 medicaid patients of whom 210 received eyeglasses. Of the 272, there were 112 children ten and under. Of these 112 children, 98 received eyeglasses. Of the 98 bespectacled children, 39 were under age six. At the suggestion of an HRS consultant, Dr. James A. Stephens, some of the respondent's records were examined and copied by HRS investigators., A random group of children's records was copied on the first trip to Dr. Beckum's office and a random group of adult patients' records was gathered, on a second visit. These records, which are in evidence as Petitioner's Exhibits 4A, 4B and 4C, were examined by Dr. ,Stephens, and, eventually, by Drs. Cherdack, Devine and Albert, served as volunteers on a peer review committed of the Florida Optometric Association. MEDICAID FRAMES Catherine Wright, mother of Shawn and Craig Wright and of Farnell and Preston Walker, sent her children to Dr. Beckum in the late '70s at the suggestion of school authorities. Each child received, eyeglasses under the medicaid program. Dr. Beckum told Ms. Wright that the medicaid program would cover the cost of some of the frames but not others. Two of her children chose frames Dr. Beckum told her Medicaid did not cover. On each occasion, Ms. Wright paid respondent's office seventeen dollars ($17.00). Ms. Wright understood she would not have incurred these charges if other frames had been selected; she just wanted to indulge her children by getting them the frames they picked out. After Tracy Boykin started school, her mother to her to Dr. Beckum's office. Eyeglasses were prescribed, and Tracy tried on several frames. She was a medicaid recipient at the time of this visit, in the fall of 1980. None of the "medicaid frames" looked right because her face is real narrow and all the frames that she tried on was small. So, he had a row of frames up on the shelf [and Mrs. Phyllis Smith, Tracy's mother] picked a pair from up there," (T. 134 for which she paid respondent's office seventeen dollars ($17.00). On Tracy's chart appears the pithy comment: "THIN HEAD." Sylvia Webb did not testify at hearing but on the basis of the parties' stipulation that she would have testified as Ms. Smith did, she is found to have paid Dr. Beckum seventeen dollars' ($17.00) for eyeglass frames for herself, while she was a medicaid recipient, some time between the fall of 1978 and the fall of 1980. MEDICAID POLICY? As an optometric consultant to HRS, Dr. Stephens has spoken to more than a hundred optometrists about medicaid policies. It is widely known among Florida's optometrists, he testified, that either "the patient pays for the glasses in their [entirety] or Medicaid pays for it, you cannot charge extra for tints or a special frame or anything of that nature." (T. 86) Elaine Beckum, respondent's wife of 25 years, has worked, for the last five and one half years, as a receptionist at respondent's office. In 1978 or 1979 she spoke to somebody in a Gainesville HRS medicaid program office, "Ms. Uelsmann's office," (T. 150),who told her, she testified, that medicaid patients "are permitted extras [s]uch as tints, better frames, better lenses" and "that if patients wanted these "extras, that they could have them." (T. 150) It was Mrs. Uelsmann herself she talked to (T. 156) She contacted Mrs. Uelsmann; and Mrs. Uelsmann answered her questions [if she's] not mistaken, if [she] remember[s] correctly." (T. 157) She communicated the substance of this telephone call to Dr. Beckum. Why Mrs. Beckum telephoned Mrs. Uelsmann is not clear from the record, because Sylvia Jones, who worked as respondent's receptionist and secretary/bookkeeper, before she left in 1977, had already called Mrs. Uelsmann, at respondent's behest, and inquired about "extras." She was advised that time that the patient could pay a difference and get a different type of frames, if they so chose" (T. 304) which advice she related to respondent. MINIMUM PROCEDURES Rule 21Q-3.07, Florida Administrative Code, took effect on November 13, 1979, and prescribed the following minimum procedures for a vision analysis: Complete case history (recorded); Unaided visual acuity, and acuity with present correction, if any; External examination including cover test and visual field testing (confrontation or other); Ophthalmoscopic examination (direct or indirect) including a study of the media, fundus, blood vessels, cup disc ratio. Biomicroscopy (binocular or monocular); Static retinoscopy or other objective refraction; Test for binocularity; Subjective refraction with recorded visual acuity; Tonometry; Other tests and procedures that may be indicated by case history or objective signs and symptoms discovered during the eye examination; Diagnosis and treatment. Joint Exhibit No. 1. At all pertinent times, even before adoption of the rule, there were minimum standards of prevailing and generally accepted optometric practice. These standards obtained throughout Florida and have not changed significantly in the last four or five years. Just as vision screening with snellen letters entails certain minimal steps, so an optometrist's vision analysis, which is considerably more comprehensive, consists of certain procedures at a minimum. At all pertinent times, generally accepted and prevailing minimum procedures included all those now codified in Rule 21Q-3,07, Florida Administrative Code, except for tonometry on persons younger than 35 years old and visual field testing. The better practice has always been to record the results of every procedure, but not all practitioners did this before the recent amendment to Rule 21Q3.07, Florida Administrative Code, effective April 24, 1980. Generally accepted and prevailing standards of practice have always required recordation, however, of significant or pertinent findings. Members of the Florida Optometric Association's peer review committee asked respondent why so many of his patients' records were devoid of the results of testing required by generally accepted and prevailing standards and, more recently, by formal administrative rule, as well. Dr. Beckum responded that he was familiar with Florida's Optometric Statutes and Rules concerning minimal examination procedures and the necessity for recording their results. Be said he had conducted more of these tests than were recorded, but just had failed to notate it on his records. He also stated that many of the required tests could not be done due to the lack of maturity of the children involved. However he failed to record this reason on his exam record. Dr. Beckum further .explained that in his philosophy of testing, some of the State's mandated tests were unnecessary (and not done) in order for him to do an adequate examination. Exhibit/ Attachment No. 2 to Petitioner's Exhibits Nos. 6 and 7. By his own admission, to the committee, respondent has failed to perform some of the minimum procedures required by Rule 21Q-3.07, Florida Administrative Code, and has failed to record the results of others. The patients' records, as to which these admissions relate, are in evidence as attachments to Petitioner's Exhibits Nos. 6. and 7. Among these records are several examinations that took place after April of 1980. Drs. Albert, Cherdack and Devine were three of the five members of the peer review committee which, as a whole, examined 146 patient records from Dr. Beckum's office and concluded: There was no justified excuse for the lack of recording, in so many cases, the minimum test results, required by the State of Florida. Neglect, or negligence is not a good reason. There was no valid reason given to us for not doing the minimal tests required by the State. Exhibit/Attachment No. 2 to Petitioner's Exhibit Nos. 6 and 7. In these respects, the peer review committee's findings are adopted, without qualification. Of the more than 100 patient records prepared by Dr. Beckum that he reviewed, Dr. James Stephens could not remember a single one on which all the test results that generally accepted and prevailing minimum procedures would have yielded were recorded. Nor was there any record of a reason for not recording these results. The overwhelming majority of these records were made in or after January of 1979 and in or before March of 1981. Some were later than April of 1980. Dr. Stephens did not review the records specifically in order to determine compliance with minimum visual analysis procedures, however. He was not on the peer review committee; he reviewed the records, as a medicaid consultant, for possible fraud and abuse. CASE IN POINT Dr. Beckum saw six year old Tony Baker on February 9, 1981, and wrote down Tony's complaint: His eyes run water all the time. No other information was recorded under the heading "Ocular History." Even though respondent made no record of any near point testing, he prescribed low plus lenses (.25 for each eye) for Tony, and did so without making any, record of having performed the pathology examination that might have uncovered the reason that his eyes watered. The p1us .25 diopter prescription for the optic sphere in each lens would not have alleviated this problem: [A] quarter of optic sphere in each eye would not prevent a patient's eyes from running water There was no slitlamp testing done here, nothing recorded to show that there was a pathology exam done. The thing that concerns me more than whether the glasses were prescribed, which is important, especially to Medicaid when the taxpayers are funding the money, is the lack of pathology testing done. You might have a kid that had some kind of problem that wasn't uncovered. You are not going to harm him by putting on glasses that he does not need. He will lose them or something. But the lack of pathology testing [or at least recordation] does concern me. Deposition of Dr. Stephens, pp. 689. Among others whose visual analysis examinations were performed by Dr. Beckum, but whose examinations did not comport with prevailing and generally accepted minimum requirements, were Kenja Brooks, Carla Michelle Dallas, Eva Mae Dawson, Donia Durden, Twana Evans, Dorothy Jerisesha Farr, Roosevelt Forbes, Sharon Futch, Simeon Griffin, Delores Harrel, Laura Spates, Geneva Tart, Curtis Thorp, Vera Wilson, Elnora Wright, Nicole Young, Andrew Daniels, Christine Neddo, Stephen Cook, Stacey Thomas and Dorothy A. Strickland. LOW, LOW, LOW POWER Respondent has prescribed "low plus" lenses for his own family and for numerous patients, children and adults, including a Joyce Courtney, who came to him in 1973 complaining of difficulty focussing on objects 30 to 40 feet away and who felt that Dr. Beckum resolved her problem by prescribing low plus lenses. A "low plus" lens has an optical sphere of less than one half /1 diopter. A diopter is a unit of the refractive or "focussing" power of a lens. Unlike many optometrists, Dr. Beckum subscribes to the views on stress relieving, low plus lenses held by the OEP of which he was once a member. Optometrists who share these beliefs, like Dr. O.C. Clarke, think low plus lenses should be prescribed for a "number of possible reasons, most of which you will find in near point vision care [and that] low plus lenses reduce the stress of the near-point task." (T. 195) Among the possible indications of a child's need for low plus lenses, according to is the school of optometry that holds there can ever be any need, are when the child is unable to work at his desk for more than a short period of time without becoming restless or fidgety. He may become tense or may work too close to his page; he may turn or cock his head to view the page. He may frequently stare off into space or look out the window. may eyes lid or the conjunctivia may appear reddened. If asked about his vision he may report that the print runs together or blurs after he has been reading for a short time, so that he cannot copy from the blackboard to his desk. Headaches may also be an indication. Sometimes there are no specific symptoms other than the fact that he is a bright child but just getting by in school. Respondent's Exhibit No. 3 But in Developmental Lenses for Children by Richard J. ApeIl, O. D., Respondent's Exhibit No. 3, the author states: Developmental [low plus] lenses are, of course, no panacea for the myriad of visual problems that we find among, school aged children. What are the symptoms that indicate a real need for developmental glasses? It is plain that distance vision is no criterion. Respondent's Exhibit No. 3. Low plus lenses have been advocated since the 1940s. The advocates claim that a prescription for low plus lenses is justified by symptoms of accommodative stress in reading or other near point tasks, but not otherwise. 20 Optometrists who doubt the efficacy of low plus lenses are unlikely ever to prescribe a lens of less than one half diopter. These skeptics, who are in the majority, view such low powered lenses as almost the same as window glass. They point out that prescription errors of a quarter diopter are routinely overlooked, and that a lens of less than one half diopter (a "low- plus" lens) has no measurable effect on visual acuity. Such lenses could be called "low, low, low power," Dr. Stephens testified. Medicaid pays optometrists $25 for examining eligible patients and an additional $7.00 for dispensing eyeglasses. Optometrists like Dr. Beckum who provide the frames get an additional $18.25 for "single vision" eyeglasses and $20.50 for bifocals, about half of which is profit. Dr. Donald Albert, who testified for petitioner on deposition, examined numerous (at least 20) records of examinations Dr. Beckum had prepared. He was amazed at the number of low power prescriptions he saw. On no patient's chart he saw was there a recorded visual acuity with the aid of the low power prescription. " Deposition of Dr. Albert, p. 80. The peer review committee found: Dr. Beckum's examination techniques and prescribing procedures (the magnitude of extremely low power prescriptions) are certainly outside the mainstream of current professional optometric philosophy and practice. This Committee believes that it is not necessarily wrong to be outside a mainstream, but if one is, he must certainly be able to defend this philosophy with complete research, documentation and/or complete testing procedures as well as to provide comprehensive recorded follow up testing to justify or satisfy a peer review and/or State Board Review, if he is not satisfying his State's minimum examination procedures. We find that Dr. Beckum has not documented, explained or provided adequate follow up care to justify to this Committee his questionable examination and prescribing procedures which we believe have resulted in multiple cases of unnecessary eyeglasses being prescribed. However, our Committee does feel that Dr. Beckum honestly believes his techniques and prescriptions are correct and warranted. Our Committee believes when dealing with claims in great numbers it is possible and probable for any doctor to have a small percentage of errors in his billings as to amount and copayments; especially when dealing with third party claims as almost all third party carriers have different and sometimes conflicting rules and regulations on payments, co payments and covered items. However it is out of this Committee's expertise and jurisdiction to deal with possible legal questions that arise concerning possibly nonvalid payments. In accordance with the FOA Professional Standards Review, we recommend to the Florida Department of Health and Rehabilitative Services, the following cou[r]ses of action in this case. Admonish Dr. Beckum in those areas of his misunderstanding and unintentional irregularities in the form of a reprimand. Establish a prepayment review as a corrective/educational device. By this, we mean that if Dr. Beckum is to be allowed to continue seeing Medicaid patients, he must agree to perform and record all tests as required by the State and to evaluate his prescribing and prescriptions in a standard and acceptable manner. Dr. Beckum must further agree to monthly submit copies of his examination records to the Medicaid Optometric Consultant (or this PSRO if payment should be granted. This review procedure should be undertaken for a minimum of six months, at which time, termination of this review may be considered. H.R.S. should have its own staff decide on repayment and/or other actions regarding the eight records where recipients had made payment over and above the Medicaid payment. H.R.S. should have its own staff decide on repayment and/or other actions regarding the three recipients who did not receive eyeglasses for which Medicaid was billed. Copies of this report and other pertinent data in this investigation should be sent to the Department of Professional Regulation for this review. Exhibit/Attachment No. 2 to Petitioner's Exhibits Nos. 6 and 7. The committee acknowledged that respondent's views on low plus lenses are "not necessarily wrong" because they are "outside a mainstream," but concluded that respondent prescribed eyeglasses that were unnecessary under any theory. UNNECESSARY PRESCRIPTIONS Dr. Beckum prescribed low plus (.37 for both eyes) lenses for Samuel Rochelle, Jr. after an eye examination in May of 1980 or January of 1981 in the course of which he recorded unaided acuities at distance, a phoria finding, subjective refraction with recorded acuity and the results of a static retinoscopy, but made no record of any near-point testing, because none was done. Dr. Beckum, made no record of anything that would justify the glasses he prescribed to Samuel Rochelle, Jr. on any theory. Dr. Beckum also prescribed plus (.37 for both eyes) lenses for Tony M. Adkins, a fifth grader, after an examination in November of 1978 or January of 1980 during which various findings were recorded, but nothing that would explain or justify, on any theory, the controversial prescription which Dr. Beckum wrote and Medicaid filled for Tony M. Adkins. In February of 1980, Dr. Beckum prescribed low plus (.25 for both eyes) lenses for 10 year old Joyce E. Rochelle for reasons the record of her examination does not reveal. No near point testing results were recorded either in February or in November of the same year, when Dr. Beckum wrote another low plus prescription (.37 in each eye) for the same child. The patient's record contains nothing to justify or explain, on any theory, the first prescription, the second prescription or the reason for the change. Each of Dr. Beckum's patient records is a form complete with possible symptoms printed on it, for circling, to facilitate the taking of a patient's history. Among those symptoms printed on the form are "Headaches," "Eyes: Ache, Tire," "Blur," "Pains)" "Nausea," and "Nervous." None of these symptoms was circled on the records of Joyce E. Rochelle, Tony M. Adkins, or Samuel Rochelle, Jr. The evidence did not establish that the prescriptions Dr. Beckum wrote for these children were warranted. They would only be justified if written "for the relief of accommodative spasm for subjective symptoms such as headache poor focussing ability, discomfort [and] tiredness of the eyes. Deposition of Joseph R. Devine, pp. 71-72. Dr. Beckum prescribed low plus lenses (.37 in each eye) for Anthony Boykin, a kindergartner, on August 18 or October 5, 1978, and again on November 20, 1979. No history whatsoever appears on this patient's records after August 18, 1980, and there is no record of any near point testing at any time. Similarly Dr. Beckum twice prescribed low plus lenses (.37 in both eyes) for Tracy Boykin, once on October 5, 1978, when she was in first grade, and again on November 20, 1979, after she had broken her first pair of glasses, without recording any history or any near point testing or anything" else that would, on any theory, explain or justify the prescriptions. There is no case history of any sort. There are no points of acuity before or after arriving at the prescription. There is no health testing that is listed here; no corneal curvature measurement, no near point testing, no binocularity testing. Deposition of Leonard Cherdack, p. 52. On March 10, 1980, Dr. Beckum prescribed low plus lenses (.25 for each eye) for Terri Lynn George and later the same year wrote a second, different prescription for low plus lenses (.37 for each eye) for Terri Lynn George. Again the patient's record is devoid of any finding or history that could, on any theory, explain or justify either the first or the second prescription, or account for the change: "No case history, no near point acuities, no health testing, no binocularity testing, no corneal reading," Deposition of Leonard ,Cherdack, p. 66 were recorded. The records Dr. Beckum kept of his two examinations of David Matthew Dixon reveal nothing that could justify or explain, on any theory, the two different low plus lens prescriptions he wrote for this child. In August of 1978, he prescribed .37 for both eyes, but the prescription was changed to .25 for both eyes approximately a year later. "There is no case history. There is no near point acuity recorded. No health history recorded." Deposition of Leonard Cherdack, p. 88. Dr. Beckum wrote two low plus lens prescriptions (both were .25 for each eye) for David Eric Dixon but nothing in David's records would explain or justify these prescriptions. Andrew Daniels saw respondent in February of 1979 and again about a year later. Both times Dr. Beckum prescribed low plus lenses (.25 for each eye), even though nothing in Andrew's records indicates the need for any prescription. He had "excellent distance acuity [20/15]." Deposition of Leonard Cherdack, p. 90. No patient history was recorded. "There is no near point acuity. No health testing no binocularity testing. There is no objective determination which shows nothing, no prescription. There is no subjective determination." Deposition of Leonard Cherdack, p. 90. Dr. Beckum took downs David S. Cooper's complaint when he examined this 8year old on December 20, 1979. "I don't know if I see well," is the complete history recorded on David's chart. But, at the time of the examination, David's unaided visual acuity at distance was 20/15 for both eyes and 20/15 for each. Dr. Beckum nevertheless prescribed glasses (.25 for each eye) which, if they had any effect, could have reduced the unaided acuities at distance. On deposition, Dr. Cherdack testified, "He sees worse with this prescription than he saw before he came into the office p. 95. Dr. Cherdack had not examined David Cooper, however. On March 11, 1981, Dr. Beckum saw Tonya Miller for the second time. When he had first seen her, on August 8, 1979 he had written a low plus (.25 for the right, .50 for the left) lens prescription which Dr. Stephens described as "questionable." Dr. Beckum prescribed new low plus (.25 for each eye) eyeglasses for Tonja Miller in March of 1981 even though her unaided acuities at distance were better than normal, viz., 20/15. Her complaint, which Dr. Beckum recorded, was "I can't see too good," but "when a patient is seeing 20/15 ths, then they are seeing good." Deposition of Dr. Stephens, p. 57. Nothing in Tonya Miller's records justifies or explains, on any theory, the prescription respondent wrote and filled for her on March 11, 1981. In scores of other cases, as well, respondent prescribed low plus eyeglasses for medicaid recipients and others who did not need them, including Tabetha Ann Evans, Betilda Gwenethe George, Andrew Daniels, Stephen Cook, Tammy Richardson and Melinda Cooper.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent is, and was at all times material to these proceedings, a licensed optometrist in the state of Florida, having been issued license number OP 000773. Respondent has been a practicing optometrist in the state of Florida for 24 years having graduated from the Southern College of Optometry in Memphis, Tennessee in 1964. Respondent has maintained his practice in Orange Park, Florida since 1964. Respondent has been treating patients with orthokeratology for approximately 20 years. Count I: Treatment of Keith Roberson with Orthokeratology and Follow-Up Care Therefor. On or about October 23, 1979, Alan Keith Roberson and his mother visited Respondent for the first time concerning a program of orthokeratology. During that visit, Respondent gave Roberson literature regarding orthokeratology. Roberson expressed a strong desire to obtain a driver's license. Roberson was 21 years of age at the time. Respondent told Roberson that orthokeratology would possibly enhance his vision and possibly enable him to achieve those things that he desired, more specifically, a driver's license. Orthokeratology has been defined as the programmed application of contact lenses to reduce or eliminate refractive anomalies and to sphericalize the cornea in order to reduce myopia, contain myopia, and to bring back a more functional vision. Orthokeratology has also been used for the reduction of astigmatism. The American Academy of Optometry does not recognize diplomacy for orthokeratology. Neither the American Optometric Association nor the Florida Optometric Association recognizes orthokeratology as a separate section. No special license or certification is required to practice orthokeratology in Florida. The initial refraction of Roberson by Respondent showed that the patient's eyes were a minus 21 diopter. Roberson was extremely myopic, which means he was extremely nearsighted. Roberson also had a high degree of nystagmus (constant movement of the eyes from side to side) and very large eyes. Respondent treated Roberson with a modified orthokeratology program in an attempt to improve Roberson's vision so that Roberson could obtain a driver's license. Through this modified orthokeratology program, Respondent hoped to reduce and contain Roberson's myopia, to reduce Roberson's nystagmus, and to improve Roberson's vision. Roberson's aided vision improved from the initial visit of 20/200 in each eye to that of 20/70 in the right eye and 20/100 in the left eye. Although Petitioner contends that Roberson's improved vision was not attributable to the orthokeratology treatment, there is insufficient evidence to show otherwise. From 1979 through September 1982, Roberson's vision did not slip and his myopia did not get any worse, and indeed, his vision had improved. During that period, Roberson was seen approximately eight times by Respondent, of which six visits were for orthokeratology and contact lens treatment. On March 17, 1981, Roberson was issued an operator's license with corrective lens restrictions by the State of Florida, Department of Highway Safety and Motor Vehicles. Prior to the issuance of this driver's license, Roberson had obtained a form entitled "Report of Eye Examination with a Certification of Eye Specialist" which was completed and apparently used to obtain Roberson's driver's license. There is insufficient evidence to show that Respondent completed and signed that portion of the form entitled "Certification of Eye Specialist". Although Roberson testified that his driver's license was issued the day after this form was dated on October 4, 1980, it is clear from the record that Roberson's driver's license was not issued until March 17, 1981. Respondent did not make any promises to Roberson that treatment with modified orthokeratology would improve his vision, unaided by glasses or contact lenses, so that Roberson could pass the vision requirement of the Florida Driver's Test unaided by glasses or contact lens, notwithstanding that the ultimate goal of orthokeratology may be to allow the patient to go for periods of time without refractive devices and function normally. Although Roberson's condition at the time of his first visit may have contraindicated a "strict" orthokeratology treatment, there were indications that the "modified" orthokeratology treatment suggested and used by the Respondent, after full explanation to Roberson, would produce the results that Roberson was seeking. In fact, it did improve Roberson's vision aided by refractive device sufficiently to allow Roberson to obtain a driver's license. Respondent did not promise Roberson that the "modified" orthokeratology treatment would enhance his vision, unaided by refractive devices, to the point of allowing Roberson to pass the driver's license test or that Roberson would be able to function normally for any period of time without refractive devices to aid his vision. There is insufficient evidence to show that Respondent could have obtained the same results using a less expensive treatment such as gas permeable contact lens. There was insufficient evidence that Respondent's follow-up care of Roberson was inadequate, particularly considering the use of "modified" orthokeratology treatment. There was insufficient evidence to show that Respondent's treatment of Roberson with "modified" orthokeratology fell below the standard of care in the community or that such treatment was inappropriate under the facts and circumstances of this case. Count II: Whether Respondent charged Patient Roberson an Excessive Fee for Orthokeratology. Because Roberson was the highest myopic (-21 diopter) patient ever seen by Respondent and initially unsure whether orthokeratology would work on this patient, Respondent quoted a fee of $1,000.00 with the understanding that if treatment was not successful then the fee would only be $500.00. The parties stipulated that Respondent ultimately received $1,000.00 in payment from Roberson for orthokeratology. Dr. Carter's normal fee in 1979 for orthokeratology was $2,000.00. There is insufficient evidence to show that Respondent prescribed orthokeratology treatment for Roberson to facilitate charging him a higher fee. Count III: Whether Respondent Failed to Properly Treat Patient Roberson and Follow Patient Roberson's Condition. At approximately 7:30 p.m., on September 7, 1982, Roberson visited Respondent's office after accidentally being "poked" in the left eye four days earlier causing a bright blue flash of light resulting in a curtain over Roberson's eye and poor sight vision in the nasal field. Roberson complained about fluctuating vision, seeing light flashes, a veil-like curtain coming over his left eye, watering of the left eye and slipping of contact lens. Respondent spent approximately 20-25 minutes examining Roberson. After examining Roberson's visual acuities, Respondent examined Roberson with a slitlamp or biomicroscope and attempted an optomoscopy in an attempt to view Roberson's retina. Because of Roberson's high degree of myopia and nystagmus and because Respondent did not dilate eyes during this time period, Respondent was unable to determine for certain that Roberson had a detached retina. However, Respondent was aware of the high possibility that Roberson had a detached retina. Although Respondent may have advised Roberson to visit his previous ophthalmologist the next day, Respondent did not call an ophthalmologist on the evening of September 7, 1982 to facilitate referral, nor did Respondent follow- up by calling a ophthalmologist at any other time. After Roberson left Respondent's office he went home. The next day Roberson went to work and while at work he continued to experience the veil like curtain over his eye and a dark spot. Roberson then went home and played drums for about 3 1/2 to 4 hours. When he finished playing the drums he took a shower. While shaking his hair dry he lost the vision in his left eye. Roberson, on the advice of his mother, then went to the University Hospital where he was immobilized and diagnosed as having a probable retinal detachment, and thereafter transported to Shands Hospital, where he was diagnosed as having a giant retinal tear. While at Shands Hospital, Roberson underwent three major operations on his eye and 45 minutes of laser surgery. He was informed that he would probably always be blind in his left eye. Because of Roberson's high degree of myopia, statistically he was at a very high risk of experiencing a detached retina with or without injury. Respondent was aware that patient's eyes were sensitive to a retinal detachment as early as 1979. In 1979, Respondent went to great lengths to inform Respondent that if he ever had the symptoms of a detached retina he should go directly to an ophthalmologist. The classic symptoms of a detached retina are flashes of light with what appears to be a veil or curtain floating over the eye. Roberson experienced the classic symptoms of a retinal detachment and communicated them to Respondent on the evening of September 7, 1982. A detached retina usually occurs secondarily to a retinal tear. A detached retina becomes an ocular emergency once detected or when it should have been detected. The circumstances presented in this case, inter alia, the history of the patient's eyes; a high degree of myopia; difficulty Respondent had with viewing patient's eyes and the symptoms complained of made the situation an ocular emergency. It was of paramount importance to get the patient to an ophthalmic specialist. The failure to promptly refer a patient who has a possible detached retina to the appropriate specialist is a grave departure from the prevailing standard of care for reasonable and prudent optometrists in Respondent's community under similar circumstances. The longer the blood supply is cut off from the retina the less chance there is that the retina will continue to function. The fact that 4 days had elapsed between the time Roberson had been struck in the eye on September 3, 1982, and the time he visited Respondent on September 7, 1982, makes referral that much more important. Merely telling Roberson to see an ophthalmologist the next day is not enough. Respondent should have called the retinal specialist and made the referral. The appropriate referral protocol and standard of care under the circumstances presented in this case would have been for Respondent to call the ophthalmologist himself that evening and, if the ophthalmologist was not in the office, it would have been appropriate to leave a message with the doctor's service explaining the emergency nature of the circumstances. Count IV: Whether Patient Roberson's Records were Altered or Made After the Fact by Respondent. When Roberson first visited Respondent's office in 1979, Respondent recorded Roberson's case history on a 5 x 8 card which was kept with Roberson's patient jacket. The results of Respondent's examination and testing of patients were records on a letter size document. In 1984, after receiving and responding to numerous inquiries regarding Roberson, Respondent transferred information from the 5 x 8 card onto the larger patient record so that all of the information would be contained on one form. The 5 x 8 card was then returned to the patient jacket. Respondent no longer has the patient jacket as all of his original records were subpoenaed from him during the civil litigation. While Dr. Carter candidly admits to transferring part of the patient record from one document onto another document, there was no testimony or evidence presented that Dr. Carter altered or changed any of the patient records or added any information thereto. Count V: Whether Respondent has Engaged in Gross or Repeated Malpractice in the Practice of Optometry Regarding his Treatment and Examination of Keith Roberson. The Respondent was disciplined by the Board of Optometry in its Final Order dated July 17, 1981 in Department of Professional Regulation v. R.T. Carter, O.D., Case No. 81-403, wherein Respondent was assessed an administrative fine of $5,000.00, ordered to make restitution in the total amount of $1,471.00, placed on probation for 18 months and had restrictions placed on his advertising. In General Although the record reveals that Petitioner has not always timely complied with time limits set out in Section 455.225(2) and (3), Florida Statutes, there has been no showing by the Respondent that he was prejudiced by the delays.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of Count III and Count V, in regard to Count III of the Amended Administrative Complaint, and suspending his license to practice optometry in the state of Florida for a period of one year followed by one (1) year of supervised probation with conditions the Board may consider appropriate, and imposing an administrative fine of $5,000.00. It is further RECOMMENDED that Count I, Count II, Count IV and Count V as it relates to Counts I, II and IV be dismissed. RESPECTFULLY SUBMITTED and ENTERED this 8th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 8th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2032 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings in Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, except date which was October 23, 1979. Adopted in Findings of Fact 4. Adopted in substance' in Finding of Fact 5, except last sentence which is rejected as not being supported by the substantial competent evidence in the record. 5.-6. Adopted in Findings of Fact 6 and 7, respectively. Subordinate to facts actually found in this Recommended Order. The first sentence adopted in Findings of Fact 10. The balance of this findings of rejected as not being supported by substantial competent evidence in the record. 9.-12. Subordinate to facts actually found in the Recommended Order. Adopted in Finding of Fact 20. Rejected as not being supported by substantial competent evidence in the record. 15.-22. Adopted in Findings of Fact 23,24,25,27,28,29,30 and 31, respectively. The first sentence is only a restatement of Respondent's testimony rather than a finding of fact. The balance of this finding is subordinate to the facts actually found in this Recommended Order. Adopted in Findings of Fact 26 and 35. 25.-28. Adopted in Findings of Fact 32, 33, 34 and 40. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-13. Adopted in Findings of Fact 1, 2, 3, 7, 3, 2, 5, 8, 9, 10, 11, 12 and 16, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 17 and 18. -20. Are not findings of fact, but statements as to the weight given certain evidence. Adopted in Findings of Fact 17 and 18. Covered in Background. 23.-26. Adopted in Findings of Fact 19, 19, 20 and 21, respectively. 27.-28. Not a finding of fact, but rather a restatement of testimony. 29.-35. Adopted in Findings of Fact 23, 23, 24, 25, 25, 25 and 25, respectively. Adopted in Findings of Fact 25 and 26, but modified. The first sentence is subordinate to facts actually found in this Recommended Order. The balance is adopted in Finding of Fact 27. 39.-41. Adopted in Finding of Fact 28. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 28. Is a restatement of testimony rather than a finding of fact but, if stated as a finding of fact would reject as subordinate to facts actually found in this Recommended Order. Rejected as being argument rather than a finding of fact. Covered in Background. Rejected as not being material or relevant. 48.-51. Adopted in Findings of Fact 36, 37, 38 and 39. Rejected as argument not a finding of fact. The first, third and fifth sentences are rejected as not being supported by substantial competent evidence in the record. The balance of this finding is subordinate to facts actually found in this Recommended Order. 54.-67. Rejected as not being material or relevant since Respondent produced insufficient evidence to show that he was prejudiced by these acts. 68. Rejected as not supported by substantial competent evidence in the record. 69.-70. Rejected as not being material or relevant. 71. Rejected as not being supported by substantial competent evidence in the record. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Gary J. Anton, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
