Findings Of Fact Petitioner Martin Keith Donaldson is the party respondent in what was originally styled State of Florida, Department of Health and Rehabilitative Services v. Donaldson, DOAH Case No. 83-2544, but which is presently styled State of Florida, Department of Professional Regulation, Board of Hearing Aid Specialists v. Donaldson, a license disciplinary proceeding. (Joint Stipulation (Petitioner's Exhibit 3)) The licensing and regulation of persons for the fitting and selling of hearing aids was a function of the Department of Health and Rehabilitative Services under Chapter 468, Part II, Florida Statutes, until July 1, 1983. At that time, those functions were transferred to a newly created seven-member Board of Hearing Aid Specialists within the Department of Professional Regulation by Chapter 83-153, Laws of Florida. The Act provided that the Board members were to be appointed by the Governor within 30 days after June 30, 1983, and confirmed by the Senate. Official records of the Department of State, Division of Elections, reflect that although seven Board members were appointed by the Governor, effective September 8, 1983, the Secretary of State certified that they were duly appointed members of the Board for terms beginning variously on dates from September 22, 1983, to October 7, 1983, subject to confirmation by the Senate during the regular session of the Legislature. (Petitioner's Exhibit 1) On September 28, 1983, a Certification of Administrative Rules was filed with the Department of State. The certification reflected that Proposed Emergency Rule 21JJER83-7 of the Florida State Board of Hearing Aid Specialists had been approved on September 27, 1983, and the certification was signed by Marcelle Flanagan, Executive Director. Attached to the certification was a Notice of Emergency Rule Adoption and the text of the emergency rule. The Rule stated as follows: 21JJ ER83-7 Probable Cause Determination The determination as to whether probable cause exists to believe that a violation of the provisions of Chapter 455 or 83-153, F.S., or the rules promulgated thereunder has occurred, shall be made by the Depart- ment of Professional Regulation. SPECIFIC AUTHORITY: Section 120.53 (1)(c), 455.225(3), F.S. LAW IMPLEMENTED: 455.225 (.3), F.S. HISTORY: New The Notice of Emergency Rule Adoption stated the basis for finding an immediate danger to public health, safety and welfare, as follows: Emergency Rule 21JJ ER83-7 estab- lishes the procedure for implementation of a probable cause panel. The 1983 Legislature has affirmed the need for licensing Hearing Aid Specialists and has expressly noted that unskilled and incompetent Hearing Aid Specialists present a danger to the public health and safety. The Legis- lature has also affirmed the need to protect the public through swift and effective discipline for those prac- titioners who violate the law. The Board must act on an emergency basis to establish the procedure for implementation for a probable cause panel to ensure that those Hearing Aid Specialists who present a danger by their continued practice in violation of Chapter 83-153, Laws of Florida, shall be quickly prosecuted. To delay the initiation of disciplinary proceedings would significantly endanger the pub- lic. Thus, in order to avoid this danger resulting from the time-consuming process of general rulemaking, the follow- ing Emergency Rule has been adopted which will terminate in ninety (90) days from September 7, 1983. The notice stated the date and time that the rule would be effective as September 27, 1983. (Testimony of Flanagan, Petitioner's Exhibit 5) The Board of Hearing Aid Specialists did not hold its first meeting until October 6, 1983. It had not approved the Emergency Rule on September 27, 1983, as reflected in the Certification of Administrative Rules. The Executive Director of the Board testified at the hearing that she was unaware as to who had approved the Emergency Rule, although-she speculated that the document that she had signed was given to her by a staff member of the Attorney General's Office. (Testimony of Flanagan, Petitioner's Exhibit 4) The notice of the adoption of Emergency Rule No. 21JJ ER83-7 was published in the Florida Administrative Weekly, Vol. 9, No. 40, on October 7, 1983, which stated the effective date of the Rule to be September 27, 1983. (Joint Stipulation [Petitioner's Exhibit 3], Petitioner's Exhibit 2) The Board of Hearing Aid Specialists held its initial and organizational meeting on October 6, 1983. During the meeting, an Assistant Attorney General asked the Board to adopt an Emergency Rule which would permit the Department of Professional Regulation to make probable cause determinations in cases arising under Chapter 455, Florida Statutes, and Chapter 83-153, Laws of Florida. He stated that at least seven cases had been transferred from the Department of Health and Rehabilitative Services and that the Department of Professional Regulation was anxious to avoid any undue delay in processing and resolving those cases. The Board was not informed that the emergency rule had been filed prior to October 6, 1983. The Board voted ". . . to follow the recommendation of counsel to promulgate the subject rule to allow the Department to determine probable cause for a period of 90 days." (Testimony of Flanagan, Petitioner's Exhibit 4) Pursuant to Emergency Rule 21JJ ER83-7, the Department of Professional Regulation found probable cause on or about October 14, 1983, to prosecute the Petitioner. (Joint Stipulation [Petitioner's Exhibit 3] , Respondent's Exhibit 1) Materials to be published in the Florida Administrative Weekly must be received by the Department of State on or before noon Friday, the week prior to publication. (Testimony of Flanagan)
The Issue The issue allegedly presented in this case is whether the Petitioner, Dennis A. Ryan, is eligible for recertification as a paramedic.
Findings Of Fact Prior to November, 1980, the Petitioner was employed as a paramedic with Brevard County Emergency Medical Services, having been certified by HRS on August 31, 1979. The Department determined, and contended at the hearing, that this certification expired on August 31, 1980, and that a certificate holder has a 60 day grace period within which to renew a certificate after its expiration date. This grace period expired on October 30, 1980. HRS received the Petitioner's application for recertification together with the required fee on November 7, 1980. The recertification application and check having been received on a date which HRS contends is not within the prescribed grace period, HRS refused to recertify the Petitioner. Since November of 1980, therefore, he has worked in a clerical position with EMS of Brevard County, not as a paramedic. HRS further contends that under the rules in existence up to and including the date of the hearing in this matter, a paramedic whose certification lapses by more than 60 days is not eligible for recertification, but must meet anew all of the requirements for an initial certification. There was some evidence presented relative to a pending change in the existing rules, designed to relax the recertification requirements, but there is not sufficient evidence in the record to support a finding of fact on this issue. At best, the prospective rule change would reduce, not eliminate, the eligibility requirements for recertification of individuals whose certificates have lapsed. The Petitioner, Dennis A. Ryan, received his Emergency Medical Technician certification after a 156 hour college course and a State examination. This was a prerequisite for the 500 hour paramedic course which was completed at the Brevard County Community College. He also has completed adjunctive courses in life support under the standards of the American Heart Association. He is not certified as an associate instructor of Advanced Cardiac Life Support courses, and as instructor/trainer for CPR, advanced first aid, water safety and standard first aid. Under the evidence presented the Petitioner is highly qualified as a paramedic. The certificate which HRS issued to the Petitioner on August 31, 1979, does not on its face set forth an expiration date. Certificate holders are also issued a wallet-size card on which there does appear an expiration date. Between January 1 and August 1, 1980, HRS gave notice by memo directly to persons whose certificates it determined had expired or were about to expire, advising them of the recertification requirements. However, after August 1, 1980, this practice was discontinued. Instead, notices were placed in various newsletters disseminated among the licensed ambulance providers in the State, advanced life support providers, training centers, etc. But without direct notification, or timely reference to his wallet-size card, the Petitioner did not submit his recertification application within the alleged grace period. Further, until August 1, 1980, HRS engaged in the practice of making exceptions to the rigid paramedic recertification rules, allowing recertification when applied for after what it asserts to be the grace period. This practice was also discontinued after August 1, 1980. Consequently, as a result of the inadvertence of the Petitioner, and the cessation by HRS of its policy of flexibility, the Brevard County area has been deprived of the services of a skilled and experienced paramedic.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services advise the Petitioner, Dennis A. Ryan, that his paramedic certification is valid until August 31, 1982, and return to him the recertification application and fee submitted on November 7, 1980. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1981. COPIES FURNISHED: Kenneth C. Crooks, Esquire Post Office Box 37 Titusville, Florida 32780 Samuel P. Stafford, Esquire Assistant District Counsel HRS Disstrict VII, Suite 912 400 West Robinson Street Orlando, Florida 32801 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DENNIS A. RYAN, Petitioner, vs. CASE NO. 81-218 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
The Issue The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified as fire fighters and fire safety inspectors. Respondent is certified in the state as a fire fighter and fire safety inspector. She is currently employed by Volusia County Fire Services as an Emergency Medical Technician. On or about October 16, 1980, Respondent was charged in circuit court with vehicular manslaughter and driving under the influence of alcohol. Vehicular manslaughter is a felony under Sections 860.01(1)and (2), Florida Statutes. 1/ Driving under the influence of alcohol is a misdemeanor under Section 316.193. On or about April 15, 1981, Respondent entered a plea of nolo contendere to the charge of "Manslaughter by Operation of a Motor Vehicle while Intoxicated or Deprived of Full Possession of Normal Faculties." The court withheld adjudication, placed Respondent on probation for two years, and restricted her driver's license to business purposes for the first three months of her probation. Respondent successfully completed her probation on April 15, 1983. On or about September 15, 1992, Respondent completed an application for certification as a fire fighter. The application asked, "Do you have a record of conviction of a felony or a misdemeanor?" Respondent answered, "No." Respondent did not answer the foregoing questions untruthfully. Respondent was advised by counsel that there had never been an adjudication of guilt and that she should state that she had never been convicted of the charges in 1981. On or about September 10, 1993, Respondent completed an application for certification as a fire safety inspector. The application asked, "Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude?" Respondent answered, "No." Respondent believed that she had never been convicted of such an offense because adjudication of guilt had been withheld, and she had successfully completed her probation. Petitioner certified Respondent as a fire fighter and as a fire safety inspector. Petitioner relied, in part, upon Respondent's answers to the questions quoted in the preceding paragraphs. Respondent did not intentionally misrepresent her criminal history to Petitioner on either application. Respondent relied on advice of counsel and a good faith belief in the truthfulness and correctness of her responses. Respondent is actively employed as a fire fighter. She is seeking certification as a fire safety inspector to further her career and to obtain employment closer to her residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of all of the charges in the Administrative Complaint except the charge of pleading nolo contendere to a felony within the meaning of Section 633.081(6)(d). It is further recommended that Petitioner enter a Final Order authorizing the issuance of a written reprimand. RECOMMENDED this 9th day of January, 1995, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.
Findings Of Fact The Town of Palm Beach is a governmental unit of the State of Florida located in Palm Beach County. The town operates an advanced life-support system through its fire department. The system has two vehicles which can be used to transport injured persons to hospitals, and two which do not have that capability but can respond to first-aid calls. When a call for emergency medical services is received, a vehicle or vehicles are dispatched from one of the town's three fire stations. Personnel will provide advanced life-support assistance to injured persons, and if the injured person's life is threatened, will transport the person to a hospital. If there is a need for transportation which is not life threatening, the town requests that a private ambulance service be dispatched. The town does not routinely transport injured persons to hospitals unless there is a life-threatening circumstance. The Department of Health and Rehabilitative Services adopted Rules 10D- 66.31 through 10D-66.38, and 10D-66.39 through 10D-66.42, Florida Administrative Code, through the same rule adoption process. Rules 10D-66.31 through 10D-66.38 constituted various amendments to rules that had previously existed. They relate exclusively to ambulance services, i.e., services which routinely transport patients. They do not relate to an advanced life-support system such as that operated by the Town of Palm Beach. Rules 10D-66.39 through 10D-66.42 pertain to training and certification standards for advanced life-support service personnel, and to certification of advanced life-support providers. The rules were adopted pursuant to the legislative mandate set out at Chapter 401, Florida Statutes. Rule 10D-66.39 relates to certification, recertification, and training requirements for paramedics. Rule 10D-66.40 sets out requirements for application for certification by advanced life-support providers. Rule 10D-66.41 sets the standards and requirements for certification as an advanced life-support provider, and Rule 10D-66.42 sets out operating procedures for advanced life- support systems. A copy of these rules as filed with the Secretary of State was received in evidence at the final hearing as Hearing Officer's Exhibit 1. Rule 10D-66.40 requires that any governmental entity which is now providing advanced life-support services must apply to the Department of Health and Rehabilitative Services for certification as an advanced life-support service. The emergency medical services provided by the Town of Palm Beach clearly constitute advanced life-support services within the meanings of the rules and Chapter 401. The town is required under the rules to apply for certification, and its personnel are required to be certified. The Town of Palm Beach has not applied for certification in accordance with the Department's rules. The Department has advised the town of its obligation to apply, and in a letter dated December 10, 1979, advised the town: We would request that you return your application to this office no later than January 7, 1980. Failure to submit an application and to comply with the applicable statutory and regulatory requirements can place the Town of Palm Beach's Fire Rescue service in legal jeopardy. The town manager testified that he does not intend to apply for certification unless so advised by counsel and directed by the town commission. On or about April 24, 1978, the Department of Health and Rehabilitative Services filed a Notice of Proposed Rule Making, relating to the rules which were ultimately adopted as Rules 10D-66.39 through 10D-66.42, with the Office of the Secretary of State. Edward L. Wilson, presently the Assistant Director of the Department's Office of Emergency Medical Services, was responsible for technical input with respect to the proposed rules, and later became responsible for developing them into final form. His responsibilities included preparation of the economic impact statement. Prior to the filing of the proposed rules with the Office of the Secretary of State, Several workshops were conducted by Mr. Wilson and other employees of the Department. Advisory committees, including physicians, emergency medical providers, and medical personnel organizations, provided input, and an ad hoc task force was established to work with the rules. The task force included physicians, representatives of fire departments, and representatives of various other associations. Representatives of the Department personally contacted numerous organizations which were known to be providing emergency life-support services. Costs of implementation of new rules and the propriety of the rules were discussed. Mr. Wilson personally contacted employees of twenty such services, and other representatives of the Department contacted employees of at least fifteen other services. The rules were filed with the Office of the Secretary of State on August 21, 1978. As originally proposed, an economic impact statement was attached to the rules. In the period between the time that the rules were originally formally proposed and the time that they were finally filed with the Office of the Secretary of State, the statute regarding economic impact statements was amended by the Legislature, and the amendment became effective. The Department sought to adopt and file a new economic impact statement with the rules as finally filed. The Office of the Secretary of State refused to accept the revised economic impact statements for filing, and they have been retained in the files of the Department. The original economic impact statement contained no estimate of costs that providers of advanced life-support services would need to incur in order to qualify for certification under the rules. The amended statement contained only the following language respecting the cost to providers: It is estimated that it may be necessary for some services to increase their staffs to meet the minimum requirements established by these Rules. Further, it is estimated that some individuals may have their jobs terminated for failure to meet the minimum standards established by these Rules. There will also be some cost for those services who will be or are providing advanced life support to meet equipment requirements. Of the services contacted by Mr. Wilson, nearly all of them indicated that they already had equipment that would comply with the requirements of the new rules, and personnel who were either already certified, or eligible to be certified under the new rules. Those who did not have the equipment and personnel indicated that they were in the process of obtaining them. Mr. Wilson therefore concluded that the economic impact of the proposed rules upon providers would be negligible. The cost to any given provider could have been reliably determined by assessing the provider's equipment and personnel, and determining what new equipment and personnel would be required, and determining the cost based upon known expenses. The Town of Palm Beach has estimated that its costs in complying with the new rules would be prohibitive. An accountant retained by the town estimated that it would cost the town in excess of $30,000 to implement the new rules, and in excess of $100,000 per year on a continuing basis. The implementation costs were based upon a determination that all of the town's firemen would need to be certified as emergency medical technicians. While that might be desirable from the town's point of view, it was not established that it would be required. It appears that the town's needs for additional certified personnel could be satisfied by the addition of no more than three additional certified persons. More than three employees of the town's fire department have already applied for certification, and if they ultimately are successful in obtaining certification, the town's expenses will not be increased. The estimate of annual costs in excess of $100,000 is totally unjustified. It includes a five percent pay increase for all personnel and $44,000 fur supervisory physicians. There is no justification for basing a five percent pay increase for all fire department employees on the rule. The physician expenses were based upon the fact that the City of West Palm Beach has contracted with a physician for such services at a cost of $11,000. The accountant reasoned that since the Town of Palm Beach transports life-threatened patients to four different emergency room facilities, they would need a supervising physician at each facility. Thus, the Town of Palm Beach, which is considerably smaller than the City of West Palm Beach, would be paying four times more for the necessary medical assistance. The proposition is absurd. Most advanced life-support systems have obtained the necessary supervisory physician on a voluntary basis. The town has made no effort to determine what actual costs, if any, it would need to incur. The Town of Palm Beach was on the Department's list to receive notice of the proposed rules. It appears that no one in the town received notice of the rules. Nonetheless, the town was made aware of the public hearing that was conducted on May 18, 1978, in Tallahassee, and a representative of the town, its town manager, actually appeared at the hearing. It does not appear that the Town of Palm Beach was in any way prejudiced by the fact that it did not receive notice, nor does it appear that the failure occurred through any conscious error on the part of the Department. In fact, the Department records indicate that notice was sent.
