The Issue Whether Petitioner's application for the Principles and Practice Examination has met the requirements set forth in Subsection 471.013(1)(a), Florida Statutes (2006),1 and Florida Administrative Code Rule 61G15-20.002(1)(b).
Findings Of Fact On or about April 27, 2006, Petitioner filed an application (Application) with the Board seeking to take the Principles and Practice Examination for professional engineers. Petitioner is not licensed in any other state as a professional engineer. Petitioner is a resident of Florida, who is of good moral character, and completed his bachelor's degree in electrical engineering from Ohio State University in December 1999. On August 5, 2006, Petitioner was awarded the degree of Master's of Science in Electrical Engineering from UCF. Petitioner is seeking to take the Florida Professional Engineering Examination in the area of electrical engineering. Section 7 of the Application for the Licensure by Examination directs the Applicant to do the following: List, in order, all employment experience. A minimum of four years experience must be evidenced at time of submitting your application. All engineering experience after graduation or prior to graduation shall be verified by professional or practicing engineers. Non- engineering experience or periods of unemployment shall be listed, but is not required to be verified. List employment beginning with earliest experience. Refer to attached copy of Rule 61G15-20.002. Column # 1 of Section 7 directs the Applicant to identify the Experience Number. Column # 2 of Section 7 directs the Applicant to list Dates of Employment, Month, Day, and Year. Column # 3 of Section 7 directs the Applicant to list Title of Position, Names and complete address of the firm and immediate supervisor. Column # 4 of Section 7 directs the Applicant to list Total Time in # of Months in Professional (Engineering Related) and Non-Professional (Non-Engineering Related) work. Column # 5 of Section 7 directs the Applicant to provide the following: Details pertaining to nature of work. Distinguish clearly between professional and non- professional duties and responsibilities. For each employment, describe explicitly, but concisely, the work you did and one engineering decision you were required to make. Attach exhibits as necessary. Refer to definitions in Section 471.005, Florida Statutes, and Rule 61G15, Florida Administrative Code, when defining work, see attached copy of rule. All experience, whether or not engineering, shall be accounted for on this application. (Emphasis in Original) Petitioner listed four separate professional experiences under Section 7. From August 1, 1995, to March 1, 2000, Petitioner served as a research assistant in the Electroscience Laboratory at the Ohio State University, while studying for his degree in electrical engineering. Petitioner assisted Ph.D. researchers to investigate electrical phenomena built electrical research devices, in a laboratory setting. From March 1, 2000, to March 1, 2001, Petitioner was employed as an electrical engineer for Weldon Technologies in Columbus, Ohio, where he worked on design, construction and manufacture of electrical systems for integration onto mobile devices. Petitioner worked on designs for digital systems, multiplying systems, vehicle systems, mobile vehicle response systems, emergency vehicles, and airplane/aerospace powered supply designs. From March 1, 2001, to December 1, 2001, Petitioner was employed as an electrical engineer for National Technical Systems in Foxborough, Massachusetts, where he worked to design, construct and perform electrical testing for domestic and international certification requirements and compliance verification. From December 1, 2001, to the present, Petitioner has been employed as an electrical engineer for the Harris Corporation in Palm Bay, Florida, where he works to design and analyze electrical systems for performance and qualification verification on aircraft, mobile vehicles, and space communication systems. Although staff had recommended that Petitioner's application be approved, Petitioner understood that the Board had to hear and approve the application. Petitioner completed the application form himself and felt that he had fulfilled all of the requirements set forth in the Application, including those contained in Column 5 of Section 7. Although Petitioner testified as to the details of the nature of the work he did at each of his employments after graduation, Petitioner failed to describe explicitly the work he did as required in Section 7, Column 5. Petitioner was required to describe explicitly, but concisely, one engineering decision he was required to make during the course of his employment. Petitioner failed to do so on his application or at the formal hearing. Petitioner has failed to show that he has met the requirements, set for in the Florida Statutes and in the Florida Administrative Code Rules, that he is entitled to sit for the Principles and Practice Examination for Professional Engineers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Board of Professional Engineers enter a final order denying the application of Petitioner, Larry Freeman, for application for the Principles and Practice Examination. DONE AND ENTERED this 23rd day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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, 2007.
Findings Of Fact Petitioner is A graduate of the University of the East in Manila, Philippines. Petitioner is the holder of the state of Illinois C.P.A. Certificate No. 18012. On July 11, 1979, Petitioner filed an application to obtain a reciprocal certified public accountant certificate in Florida (licensure by endorsement) based upon his certificate issued by the State of Illinois. On December 14, 1979, the Board denied Petitioner's application for a reciprocal certificate for the reason that Petitioner had not graduated from an accredited four-year college or university and, accordingly, failed to satisfy the requirements set forth in Section 7(3)(b), Chapter 79-202, Laws of Florida, now codified as Section 473.308(3)(b), Florida Statutes (1979) The University of the East in Manila, Philippines, is not recognized by the Board as an accredited university in Florida and was not so recognized at the time that Petitioner received his certificate as a certified public accountant in the State of Illinois. The University of the East is not listed among the institutions of post secondary education by the Council on Postsecondary Accreditation, the official listing of accredited colleges and universities adopted by the Board to ensure the minimum competence of public accounting practitioners. Additionally, the University of the East in Manila, Philippines, has not been accredited by any of the regional accrediting agencies recognized by the Board. Douglas H. Thompson, Jr., the Respondent's Executive Director since 1968, is the Board's chief executive officer and, as such, carries out the Board's functions respecting applications for licensure. Mr. Thompson examined Petitioner's application pursuant to Petitioner's Illinois certificate to ascertain whether Petitioner's certificate was issued under criteria substantially equivalent to Florida's licensing criteria and determined that the criteria were not substantially equivalent. Petitioner's application was considered by the Board on two occasions and was rejected.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: Petitioner's application for a reciprocal certified public accountant certificate be denied. RECOMMENDED this 10th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1980. COPIES FURNISHED: Samuel Hankin, Esquire Commerce Building 226 South Main Street Gainesville, Florida 32602 Mr. Marianito Manalo Ilagan 9020 S.W. 56th Street Cooper City, Florida 33328 Ms. Nancy Kelley Wittenberg Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Petitioner Samuel Scardino is an optometrist who is currently licensed as such in the states of California, Illinois, Kentucky, and Michigan. He graduated from the Illinois College of Optometry in 1978, and successfully passed all parts of the National Board of Optometry examination in the same year. He has been a practicing optometrist in Battle Creek, Michigan, since 1978. (Testimony of Petitioner, Petitioner's Exhibit 4) By application dated May 10, 1983, Petitioner applied to take the Florida optometry examination. His application was received by Respondent on May 13, 1983. Petitioner's application was approved pursuant to Respondent's Rule 21QER83-1 which amended Rule 21Q-4.01, Florida Administrative Code, on May 19, 1983, to provide that an applicant must have obtained a qualifying score on the national examination within five years prior or two years subsequent to the date of passage of the state examination. It also provided that a passing score of 75 must be obtained on the pharmacology section of the national examination in 1983, or subsequent thereto, within five years prior or two years subsequent to passage of the state examination. By letter of May 18, 1983, Respondent acknowledged receipt of Petitioner's application and $250.00 fee, but indicated that the application was incomplete in that a final transcript must be sent by his school, and also that the National Board report of passing grades within the past five years and the pharmacology section in 1983 with a score of 75 or above were required. Petitioner complied with these requirements and received an admission card for the optometry examination to be held in July of 1983. Petitioner took the examination at that time and received notice in September 1983 that he had failed the pharmacology/pathology portion of Part II of the examination with a grade of 61. A review of Petitioner's objections to the grade resulted in a further letter from Respondent, dazed December 23, 1983, which advised Petitioner that the Board of Optometry review committee had reviewed the matter and changed his final grade for the pharmacology/pathology portion of the examination from 61 to 65, but that a final grade of 70 percent or better was required to achieve a passing status. He was thereupon advised of his right to a hearing under Section 120.57, Florida Statutes. (Testimony of Petitioner, Petitioner's Exhibit 1, 5-8, Respondent's Exhibit 1) On March 19, 1984, Petitioner filed an application for optometry reexamination with the Respondent, together with the $250.00 reexamination fee. The state application form for reexamination did not ask for any information concerning the National Board of Optometry examination, as did the original application form. Respondent's Rule 21Q-4.02, Florida Administrative Code, pertaining to reexamination, provided pertinently as follows: 21A-4.02 Reexamination.-- An applicant who fails either Part I or Part II of the state examination for licensure shall be required to retake only that part of the examination on which he failed to achieve a passing grade, provided that the applicant shall be limited to two retakes within a two year period from the date of original failure. If the applicant fails to achieve a passing grade as provided above, he shall be required to take the complete state examination for licensure in order to be entitled to be licensed as an optometrist. Reexamination shall be conditioned on payment of the reexamination fee. Respondent advised Petitioner by an undated letter which he received on April 7, 1984, that his National Board scores were no longer valid to take the Florida examination since they had been obtained more than five years prior to his application to take the 1984 examination. The letter further stated that 1983 was his last year of eligibility for examination under his 1978 National Board scores and that he had not been successful in his 1983 Florida examination. The letter enclosed an application for refund of his $250.00 fee for the 1984 examination. Petitioner thereafter spoke with the Executive Director of the Board of Optometry who indicated that the Board would be evaluating his and other questions of candidates at their May 4, 1984 meeting. (Testimony of Petitioner, Gardner, Petitioner's Exhibits 2, 9, 11) The minutes of a meeting of the Board of Optometry on May 3, 1984, contains the following item: Examination 1984 - After discussion with Board Counsel, the Board reiterated that Examination candidates must have passed all parts of the National Board within 5 years prior to application to take the Florida examination in order that all candidates who pass the Florida examination are immediately eligible to apply for licensure. Any candidate who applies to retake the Florida examination must also meet the requirements of passing the National Board within 5 years of applying to retake the Florida examination. All requirements of 21Q-4.01 apply to all candidates and no waiver of requirements shall be granted. Motion by Dr. Walker, seconded by Mrs. Chambers. Passed unanimously. The Board's Executive Director advised Petitioner of the action taken by the Board in a letter of May 14, 1984. He was also informed by this letter that if he completed the National Board requirements prior to the 1985 examination and applied for such examination, he would be required only to take the practical portion of Part II of the Florida examination, but that if he were not licensed in 1985, he would be required to take the entire Florida examination. After receiving the letter, Petitioner submitted his application for refund of the $250.00 reexamination fee which was approved on April 4, 1984 and thereafter paid to Petitioner. By Petition dated June 19, 1984, Petitioner requested an administrative hearing to contest the Respondent's denial of his application to retake the Florida optometry examination which was scheduled for August 1984. The instant rule challenge was subsequently filed in September 1984. (Testimony of Petitioner, Gardner, Petitioner's Exhibit 10) The policy statement announced by the Board at its May 3, 1984, meeting that applicants for reexamination must have passed the National Board examination within a period of five years prior to such application was first applied in 1984 and was uniformly applied to all applicants for reexamination who had not taken the National Board examination within the requisite period prior to application. (Testimony of Gardner)
The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
The Issue Validity of Respondent's policy that applicants to retake the examination administered for licensure as an optometrist must have passed all portions of the national board examination within five years prior to the filing of the application. This rule challenge arises under Section 120.56, Florida Statutes. It was consolidated for purposes of hearing with another case involving the same parties, DOAH Case No. 84-2647, wherein Petitioner is seeking to have his application to retake part of the state examination for optometrists approved. In that case, the Petitioner has provisionally denied his request based on the policy being challenged as a rule in this proceeding. At the hearing, Petitioner testified in his own behalf and called Mildred Gardner, Executive Director of the Board of Optometry, as a witness. Petitioner submitted 12 exhibits in evidence and the Respondent submitted one exhibit. The parties have submitted posthearing findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Findings Of Fact Petitioner Samuel Scardino is an optometrist who is currently licensed as such in the states of California, Illinois, Kentucky, and Michigan. He graduated from the Illinois College of Optometry in 1978, and successfully passed all parts of the National Board of Optometry examination in the same year. He has been a practicing optometrist in Battle Creek, Michigan, since 1978. (Testimony of Petitioner, Petitioner's Exhibit 4) By application dated May 10, 1983, Petitioner applied to take the Florida optometry examination. His application was received by Respondent on May 13, 1983. Petitioner's application was approved pursuant to Respondent's Rule 21QER83-1 which amended Rule 21Q-4.01, Florida Administrative Code, on May 19, 1983, to provide that an applicant must have obtained a qualifying score on the national examination within five years prior or two years subsequent to the date of passage of the state examination. It also provided that a passing score of 75 must be obtained on the pharmacology section of the national examination in 1983, or subsequent thereto, within five years prior or two years subsequent to passage of the state examination. By letter of May 18, 1983, Respondent acknowledged receipt of Petitioner's application and $250.00 fee, but indicated that the application was incomplete in that a final transcript must be sent by his school, and also that the National Board report of passing grades within the past five years and the pharmacology section in 1983 with a score of 75 or above were required. Petitioner complied with these requirements and received an admission card for the optometry examination to be held in July of 1983. Petitioner took the examination at that time and received notice in September 1983 that he had failed the pharmacology/pathology portion of Part II of the examination with a grade of 61. A review of Petitioner's objections to the grade resulted in a further letter from Respondent, dated December 23, 1983, which advised Petitioner that the Board of Optometry review committee had reviewed the matter and changed his final grade for the pharmacology/pathology portion of the examination from 61 to 65, but that a final grade of 70 percent or better was required to achieve a passing status. He was thereupon advised of his right to a hearing under Section 120.57, Florida Statutes. (Testimony of Petitioner, Petitioner's Exhibit 1, 5-8, Respondent's Exhibit 1) On March 19, 1984, Petitioner filed an application for optometry reexamination with the Respondent, together with the $250.00 reexamination fee. The state application form for reexamination did not ask for any information concerning the National Board of Optometry examination, as did the original application form. Respondent's Rule 21Q-4.02, Florida Administrative Code, pertaining to reexamination, provided pertinently as follows: 21A-4.02 Reexamination.-- An applicant who fails either Part I or Part II of the state examination for licensure shall be required to retake only that part of the examination on which he failed to achieve a passing grade, provided that the applicant shall be limited to two retakes within a two year period from the date of original failure. If the applicant fails to achieve a passing grade as provided above, he shall be required to take the complete state examination for licensure in order to be entitled to be licensed as an optometrist. Reexamination shall be conditioned on payment of the reexamination fee. Respondent advised Petitioner by an undated letter which he received on April 7, 1984, that his National Board scores were no longer valid to take the Florida examination since they had been obtained more than five years prior to his application to take the 1984 examination. The letter further stated that 1983 was his last year of eligibility for examination under his 1978 National Board scores and that he had not been successful in his 1983 Florida examination. The letter enclosed an application for refund of his $250.00 fee for the 1984 examination. Petitioner thereafter spoke with the Executive Director of the Board of Optometry who indicated that the card would be evaluating his and other questions of candidates at their May 4, 1984 meeting. (Testimony of Petitioner, Gardner, Petitioner's Exhibits 2, 9, 11) The minutes of a meeting of the Board of Optometry on May 3, 1984, contains the following item: Examination 1984 - After discussion with Board Counsel, the Board reiterated that Examination candidates must have passed all parts of the National Board within 5 years prior to application to take the Florida examination in order that all candidates who pass the Florida examination are immediately eligible to apply for licen sure. Any candidate who applies to retake the Florida examination must also meet the requirements of passing the National Board within 5 years of applying to retake the Florida examination. All requirements of 21Q-4.01 apply to all candidates and no waiver of requirements shall be granted. Motion by Dr. Walker, seconded by Mrs. Chambers. Passed unanimously. The Board's Executive Director advised Petitioner of the action taken by the Board in a letter of May 14, 1984. He was also informed by this letter that if he completed the National Board requirements prior to the 1985 examination and applied for such examination, he would be required only to take the practical portion of Part II of the Florida examination, but that if he were not licensed in 1985, he would be required to take the entire Florida examination. After receiving the letter, Petitioner submitted his application for refund of the $250.00 reexamination fee which was approved on April 4, 1984 and thereafter paid to Petitioner. By Petition dated June 19, 1984, Petitioner requested an administrative hearing to contest the Respondent's denial of his application to retake the Florida optometry examination which was scheduled for August 1984. The instant rule challenge was subsequently filed in September 1984. (Testimony of Petitioner, Gardner, Petitioner's Exhibit 10) The policy statement announced by the Board at its May 3, 1984, meeting that applicants for reexamination must have passed the National Board examination within a period of five years prior to such application was first applied in 1984 and was uniformly applied to all applicants for reexamination who had not taken the National Board examination within the requisite period prior to application. (Testimony of Gardner)
Findings Of Fact Case History On April 10, 1987, Petitioners filed a Petition for Formal Administrative Hearing and for Administrative Determination of Invalidity of a Rule as described in the Issues statement to this Order. On April 20, 1987, Intervenors requested intervention. On April 20, 1987, Respondent Board moved to dismiss the petition filed by the Petitioners and to stay the proceedings. On April 27, 1987, oral argument was held on the petition to intervene, the motion to dismiss, and the request to stay proceedings. On April 29, 1987, an order was entered which granted the intervention, and denied the motions to dismiss and to stay. The case was originally scheduled to be heard on May 5 and 6, 1987. Upon stipulation and agreement of the parties to waive the requirement set forth in Section 120.56, Florida Statutes, calling for the conduct of the final hearing within 30 days of assignment of this matter to a Hearing Officer, the case was rescheduled for hearing to be held on June 11 and 12, 1987. The First District Court of Appeal in Dept. of Professional Regulation, et al. v. William J. Broussard, M.D., et al., Case Nos. 87-238/87-260, issued an order staying the conduct of the hearing to be held on June 11 and 12, 1987. The stay was eventually dissolved as a result of an order entered by the First District Court of Appeal on July 23, 1987, in the aforementioned appellate court cases. The administrative case was then returned to an active status before the Division of Administrative Hearings and scheduled for hearing on dates including October 5 and 6, 1987, the eventual dates for hearing. Prior to the commencement of the hearing, Intervenors sought action on a motion to dismiss the Florida Medical Association as a petitioner. That motion was denied. Another preliminary matter related to the September 2, 1987, request for production of documents from the physician petitioners. On October 2, 1987, Petitioners had objected to that request for production. On October 5, 1987, Intervenors had filed a motion to compel physician petitioners to produce certain economic information and financial records related to allegations of standing. Prior to the commencement of the hearing on October 5, 1987, and in the face of remarks by counsel for the Petitioners, it was determined that the physician petitioners did not intend to advance a claim of economic injury in the sense of a change in economic circumstances in their practices with the advent of the licensure of certified optometrists. As a consequence, the requested production became a moot question and the motion to compel was denied. Enabling Legislation In 1986, the Florida Legislature reenacted the Optometry Practices Act, as Chapter 86-289, Laws of Florida. Section 6 of that Act set forth the opportunity for practitioners licensed as certified optometrists to administer and prescribe topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions of the human eye and its appendages. The specific provisions which establish the requirements for certification are announced in Section 463.0055(2), Florida Statutes (1986 Supp.) as: The board shall issue certification for the administration and prescription of topical ocular pharmaceutical agents in the diagnosis and treatment of ocular conditions to licensed practitioners who have completed the appropriate forms as required by the board and who have submitted proof of fulfilling all of the following requirements: Successful completion of at least 110 hours of approved transcript-quality coursework and clinical training in general and ocular pharmacology, as determined by the board. However, no course in pharmacology shall be approved by the board unless the course is conducted by an institution which has facilities for both the didactic and clinical instructions in pharmacology and which is accredited by a regional or professional accrediting organization that is recognized and approved by the Council on Post-secondary Accreditation or the United States Department of Education. Completion of at least 1 year of supervised experience in differential diagnosis of eye disease or disorders as part of the optometric training or in a clinical setting as part of optometric experience. Successful completion of an examination approved by the board which tests knowledge of general and ocular pharmacology with particular emphasis on the topical applica- tion of pharmaceutical agents for the eye and the side effects of such pharmaceutical agents. A related provision at Section 463.002(9), Florida Statutes (1986 Supp.), describes "transcript-quality" as follows: (9) "Transcript-quality" means a course which is in conjunction with or sponsored by a school or college of optometry or equivalent educational entity, which course is approved by the board and requires a test and passing grade. Section 463.0055(3), Florida Statutes (1986 Supp.), pertains to the payment of fees associated with becoming a certified optometrist. It states: (3) The board shall establish by rule an application fee, not to exceed $250, and an examination fee, not to exceed $250, for certification pursuant to this section. Section 463.0055(4), Florida Statutes (1986 Supp.), establishes a formulary committee which will assist DPR in identifying those topical ocular pharmaceutical agents that may be utilized by the certified optometrist in his or her practice. The decision to enact legislation providing for certification of optometrists to use topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions in the human eye was passed in a setting in which optometrists within Florida had historically been involved with the administration and prescription of diagnostic and therapeutic drugs. The overall facts of this case demonstrate that this legislation was designed to specifically set forth the framework for allowing the employment of those pharmaceutical agents or drugs in the future. Adoption of Rule 21Q-10.001, Florida Administrative Code, etc. In an attempt to effectuate the purposes of Section 463.0055(2), Florida Statutes (1986 Supp.), the Board adopted Rule 21Q-10.001, Florida Administrative Code. The rule was first noticed for adoption in Vol. 12, No. 38 of the Florida Administrative Weekly, published September 19, 1986. The rule was adopted by the Board and filed with the Secretary of State on October 31, 1986. The effective date of Rule 21Q-10.001, Florida Administrative Code, is November 20, 1986. In the issue of the Florida Administrative Weekly described in the previous paragraph, the Board published amendments to the rule pertaining to fees which is Rule 21Q-6.001, Florida Administrative Code. Those amendments were filed with the Office of the Secretary of State on October 31, 1986. They became effective on November 20, 1986. Within that set of amendments on fees, the Board created a $100 application fee "for certification as a certified optometrist" and a $250 examination fee "for certification as a certified optometrist." The text of Rule 21Q-10.001, Florida Administrative Code, states: 21Q-10.001 Application for Certification. To be certified to administer and prescribe topical ocular pharmaceutical agents a licensed practitioner must submit a completed application form provided by the Board, remit the application fee for certification speci- fied in Rule 21Q-6.001(9), and demonstrate compliance with the following requirements: Successful completion of at least 110 hours of Board approved transcript quality coursework and clinical training in general and ocular pharmacology conducted by an accredited institution which has facilities for both didactic and clinical instruction in pharmacology. The institution must document the applicant's successful completion. The Board will accept coursework and clinical training in general and ocular pharmacology received by the applicant during his basic optometric curriculum or at postgraduate courses if this coursework and training was provided by a Board approved school of optometry or equivalent educational entity; Completion of at least one (1) year of supervised experience in differential diagnosis of eye diseases or disorders. The one year of supervised experience shall be received either during optometric training or in a clinical setting as part of optometric experience. The requisite one year of supervised experience in a clinical setting may be obtained in an academic or non- academic environment. For the purpose of this rule, one year of supervised experience in an academic setting is understood to mean three (3) quarters or two (2) semesters and one (1) year of supervised experience in a non-academic setting is understood to mean a twelve month period; Successful completion of a Board approved examination testing knowledge of general and ocular pharmacology with particular emphasis on the topical application of pharmaceutical agents. In order to be approved by the Board, the examination must have been administered in a Board approved school of optometry or at the conclusion of a post- graduate course conducted by a Board approved school of optometry, and the examination must be approved by the Board. Board Activities in Certifying Optometrists In preparation for implementing the statute, in July 1986 Board Chairman Edward K. Walker, O.D., appointed Jon S. Jacobs, O.D., as an ad hoc committee of one to begin gathering information from the schools and colleges of optometry. Dr. Jacobs' mission was to gather information from the schools and colleges to present to the Board so that it could determine whether the level and quality of the education, curriculum, examinations and supervised clinical experience in differential diagnoses received by optometry graduates of the various schools satisfied the criteria contained in Section 463.0055(2), Florida Statutes (1986 Supp.). Licensed practitioners of optometry in Florida have been educated at eighteen different schools and colleges of optometry. Dr. Jacobs contacted either the president or dean of each of these institutions in order to obtain information for the Board's consideration. On August 1, 1986, Dr. Jacobs wrote each of the schools and colleges. In his letter Jacobs cited the language of the statute and asked the schools to respond to the different sections of the law by providing the Board with information concerning whether and when graduates of their institution satisfied the statutory criteria. He requested specific information from the schools concerning how many clock hours of coursework in general and ocular pharmacology they required and in what years they required them. He inquired whether or not students had to pass the pharmacology courses in order to graduate. He asked that the schools provide the Board with the pharmacology examinations given to their graduates. Dr. Jacobs also requested that the schools provide the Board with the information which would establish the beginning year in which the institution required of their graduates one year of supervised experience in differential diagnosis of eye disease or disorders. In addition to requesting information concerning the school's basic curricula leading to the O.D. degree, Dr. Jacobs also requested information on postgraduate and continuing education coursework offered by the institutions. The Board interprets the 110-hour requirement as referring to "clock hours" and not to "credit hours." The Board has determined that the accreditation of a school is evidence of its having facilities for both the didactic and clinical instructions in pharmacology. The optometric schools in question are accredited. All of the schools responded with information from which the Board could determine if and when the school met the 110 clock hour requirement and the requirement of one year of supervised experience in differential diagnosis. All of the schools provided information to the Board which indicated that their students were required to pass the pharmacology courses in order to graduate and therefore satisfied the "successful completion of at least 110 hours" criterion. Follow-up correspondence and telephone conversations with the presidents or deans were necessary to clarify the Board's request and verify the school's response. Many of the schools and colleges expressed concern about the confidentiality of the examinations which the Board had requested. The Board assured the schools that it would not be reviewing the exams for any purpose other than complying with its statutory responsibilities. The information was submitted to the Board in various forms by the schools and colleges and included catalogs, lists of pharmacology courses, and narrative or individual curriculum descriptions of pharmacology courses offered by the institutions. All of the schools and colleges submitted examinations to the Board, but not all examinations given in the relevant courses. Some of the schools submitted as many as eight examinations. The exams submitted were administered by the schools at various times. Many of the schools submitted information which indicated that they maintain computerized banks of examination questions from which they draw randomly in constructing examinations. In some instances, the Board received representative examinations because all of the exams the school had ever administered were not available. With the assistance of the Board's executive director, Dr. Jacobs compiled the information he had gathered from the various schools in chart form and presented it to the Board for its consideration. The ad hoc committee of one composed of Dr. Jacobs evolved into a three member certification committee. In August of 1986, Peter Liane, O.D., became chairman of the Board and appointed Dr. Jacobs as chairman of the Board's Certification Committee. Dr. Liane also appointed himself and Dr. Walker to the committee. The mission of the certification committee was to determine the minimum requirements of the statute, further organize the information Jacobs had gathered, and recommend to the Board those who were to be certified or not based upon documentation and evidence of what they deemed to be compliance with the statute. In reviewing the information it had gathered, the Board viewed the statutory criteria as requiring it to answer three questions: (1) Have applicants for certification received the requisite quantity and quality of coursework?; (2) Have applicants obtained the requisite differential diagnosis experience?; and (3) Are applicants safe to prescribe and administer topical ocular pharmaceutical agents based on passage of a Board approved examination which tested their knowledge of pharmacology and the side effects related to topically applied pharmaceutical agents? The Board reviewed the curriculum and the catalogs and information it received from the schools of optometry. The Board was satisfied about the accuracy of the information it received from the schools and colleges based upon the Board's knowledge of the programs in the schools, including experiences of four members of the Board who sit on the boards of trustees of various colleges of optometry. The Board relied upon the information, statements, and representations they received from the deans and colleges concerning when their graduates complied with certain statutory criteria. The Board determined that it would accept education, training, and examinations from the schools and colleges of optometry and other equivalent entities in order to satisfy statutory criteria for certification. When asked to describe in general terms what the Board was looking for in reviewing the exams to determine if the coursework in pharmacology was in compliance with Section 463.0055(2)(a), Florida Statutes (1986 Supp.), Board members identified that they reviewed examinations to determine whether the course content, as set forth in the exam instrument, was at least 75 percent related to general and ocular pharmacology. The 75 percent standard was chosen by the Board as an arbitrary number which represented "a substantial portion of the test." A number of courses and their exams were not recommended for approval on the basis that the examinations lacked enough questions related to pharmacology to meet this requirement established by the Board. Although the deans and colleges assured the Board that their school's coursework satisfied the pharmacology criterion, it was the Board's understanding that the Legislature intended for the Board to "approve" the coursework by looking at it to determine the quality and level of that coursework. The Board was of the view that, even though an applicant took a course for the requisite number of hours, unless the Board specifically approved the course and determined that it was of sufficient quality, the course would not satisfy the first statutory criterion. Therefore, the Board reviewed the material each institution submitted on an individual basis, and approved portions of that material as satisfying the criterion for coursework. The Board believed that the best way to evaluate the quality of a course was to look at the examination which was required in that course. The Board reviewed each of the examinations which they received from the schools or colleges. Although the Board did not review each and every exam administered by all schools, it did review exams from all schools. Each Board member received copies of the exams. The exams were reviewed and discussed question by question at public meetings. The Board conducted its review based on the expertise of its members who are practicing optometrists with a knowledge of optometric education and professional practice. The statutory term "successful completion" was determined by the Board to mean successful passage of an examination for the course. The deans of the schools certified to the Board that their graduates were required to have taken 110 hours of coursework in pharmacology and had passed an exam in such coursework. With regard to the "110 hours," the Board determined that even if an applicant indicated that he or she had received that quantity of coursework, at least 75 percent of the 110 hours (83 hours) would need to be satisfied in a core course. None of the exams which the Board reviewed for the 83 hour core courses were "take home" exams. Some examinations for which partial credit was given were of that type. In satisfying the statutory criterion of "transcript-quality coursework," the Board determined whether the coursework was given by a school or college of optometry or equivalent entity, and whether the student had taken and passed an examination on the coursework. The Board also determined that the coursework which was submitted in satisfaction of the 110 hour requirement, in fact, included "clinical training." The Board made this determination by observing that information in the curriculum presented by the various schools and colleges. As to the specific clinical training criterion for certification, Dr. Jacobs assumed that the schools "automatically would have their clinical training in their curriculum." Also, Dr. Jacobs indicated that, because the schools were accredited, "we could then assume that these were the quality schools and, therefore, would be administering quality coursework and quality testing." The courses which were approved by the Board as having satisfied the 110 hours of "pharmacology" criterion were courses which dealt with the properties, chemistry, actions and uses of drugs. The courses approved also dealt with the effects of drugs on the body and on the eye, the diagnostic use of drugs, the therapeutic use of drugs, and the side effects of drugs. The Board also determined that the pharmacology coursework was "conducted by an institution which has facilities for both the didactic and clinical instruction in pharmacology." The Board did not approve courses taught by individuals, but only recognized courses conducted by colleges of optometry with both the physical facilities and faculty expertise in teaching and research necessary to provide didactic and clinical instruction in pharmacology. The Board also determined that each approved course was conducted by an institution accredited by the Council on Post-secondary Accreditation. This information was readily accessible to the Board because of the Board's continuing responsibility to review the accreditation status of various optometry schools in order to enforce the Board's existing requirement that applicants for licensure in Florida be graduates of accredited schools. Accreditation, however, did not mean a school's coursework was automatically accepted as satisfying the statutory criterion. Of the eighteen accredited schools of optometry recognized for licensure purposes in Florida, coursework from only sixteen were approved for certification purposes. Two accredited schools, the University of Montreal and Interamerican University of Puerto Rico, were disqualified because they did not meet the statutory requirements for certification. However, the Board believes that the statutory and rule requirement that approved coursework must be "conducted by" an accredited institution which has facilities for both didactic and clinical instruction in pharmacology does not require that such courses be taken at that institution or at a location that, in fact, has didactic and clinical instruction facilities. The Board also reviewed and approved continuing education courses and postgraduate courses which could be used in partial satisfaction of statutory criterion number one. The Board went through the same process with regard to reviewing and approving the examinations for the continuing and postgraduate courses. However, unlike the groups of representative exams which the Board was sent by schools and colleges, the Board reviewed each and every one of the continuing education and postgraduate examinations. Although the Board had previously reviewed and approved the continuing education course exams when the courses were approved for continuing education credit, the Board reviewed the exams a second time to determine if they satisfied the certification criterion concerning appropriate coursework. The Board has approved approximately forty continuing education, seminar, extension and postgraduate courses. The Pennsylvania College of Optometry continuing education course referred to as "PCO 701" is an example of this type of course approved by the Board. The "PCO 701" course was designed for practicing optometrists. The instructors for the course were Ph.D.s in pharmacology and ophthalmologists from the Jefferson Medical School in Philadelphia. The instructors flew in to several areas of Florida every weekend to conduct the three month continuing education course. As to the requirement of one year of supervised experience in differential diagnosis, the Board has determined that this may be obtained in either an academic or a non-academic environment. In order to determine compliance with the "one year of supervised experience" criterion, the Board requested the schools and colleges to provide it with the year in which the institution required at least one year of clinically supervised training in differential diagnosis of their graduates. The catalogs and curricula submitted by the schools to the Board also indicated that clinical training was provided as part of pharmacology coursework. The third criterion requires an examination approved by the Board. The Board did not prepare or administer an examination in order to determine an applicant's compliance with this criterion. Concerning the requirement of successful completion of an examination which tests knowledge of general and ocular pharmacology, the rule implements the Board's policy decision to not prepare and administer a separate pharmacology exam for certification purposes. The Board has determined that examinations administered in optometry school or in postgraduate courses suffice. In order to determine whether applicants satisfied the third criterion, the Board reviewed and approved the examinations which applicants had been required to pass either at the end of their coursework in optometric school or at the end of their postgraduate education. Since 1972, the Board has tested for the side effects of pharmaceutical agents as required by criterion three on the pharmacology portion in its general licensing examination, to become a "licensed practitioner." The pharmacology portion of the Board's exam is a prerequisite to obtaining licensure in Florida. Part I of the examination tests ocular pathology and pharmacology. Applicants must obtain a score of 70 percent or better in each subject in Part I of the exam in order to obtain a passing grade. Part II of the exam consists of the clinical portion and a pharmacology/ocular disease portion. An applicant must obtain a score of 80 points or better in order to secure a passing grade on the clinical portion of the practical exam. The National Board of Examiners in Optometry Education also tests ocular pathology, ocular pharmacology, and treatment and management of ocular disease. The NBEO exam tests: Clinical science which measures a candidate's application of the fundamental knowledge base to the prevention, diagnosis, management, and treatment of clinical conditions within the scope of optometric practice and consists of the following subject areas: systemic conditions; ocular disease/trauma. The International Association of Boards of Examiners in Optometry examination on the treatment and management of ocular disease (IAB examination) is an examination which must also be passed by Florida applicants in order to obtain general licensure. The IAB examination is designed to assess the cognitive skills deemed essential in utilizing pharmacologic agents for therapeutic purposes. A passing score is 75. The subject areas tested on the IAB examination include selection of the therapeutic regime; dosage and/or duration; contraindications/side effects; and the follow-up prognosis. The Board of Optometry approves the Florida examinations for general licensure. This function includes reviewing all of the examinations, working with DPR staff in the design of those examinations, actual selection of examination questions, and determination of the scope of the exam. The Board has approved all of the general licensure examinations which have been administered subsequent to 1972. Although Board members have been aware that since 1972 applicants for general licensure have been required to pass the Board approved examination in pharmacology which tests for side effects, the Board has never specifically stated or adopted a policy that this examination satisfies the third criterion to become a certified optometrist. While the Board seems satisfied that the post-1972 licensure exam would be sufficient to satisfy that criterion, the Board relied on and approved the exam which the applicant took either in school or at the end of their postgraduate training as the exam which satisfied the third criterion. Eight hundred seventy three (873) optometrists had been certified in Florida at the point of final hearing. Each of the 873 optometrists who have been certified were existing licensed practitioners in Florida at the time they were certified. Paradoxically, though the Board did not rely on the general optometric examinations for certification, it did rely on the 1972 and forward examination results in classifying the successful candidates for certification. The Board related that 570 of the 873 certified optometrists took the Florida licensure exam in 1972 or thereafter. Three hundred three (303) took the Florida licensure exam prior to 1972. Two hundred sixty three (263) of the 303 took and passed the PCO 701 course for which the Board reviewed each examination and determined that it satisfied the third criterion because it tested for the use of topical application of pharmaceutical agents and side effects. Of the remainder of the applicants who were examined for general licensure prior to 1972, 37 took the PCO 750-B course which was another course in pharmacology for which the Board had reviewed exams and found that they satisfy the third criterion. Of the remaining three applicants, one took the New England diagnostic pharmacology course and one took the Indiana DBF course in ocular pharmacology. The Board reviewed and approved each of these exams as having satisfied the third criterion. The lone applicant remaining of the 873 was a 1971 graduate from the University of Houston. The Board did not review the actual exam which the University of Houston applicant took, although the Board reviewed a number of representative exams which were sent by the University of Houston. Based on its review of the representative exams provided by the University of Houston, the Board determined that the one applicant for certification who had taken an examination which tested for side effects, but which actual exam was not approved by the Board, was sufficiently qualified to demonstrate compliance with the third criterion. The Chairman of the Board personally knows the single candidate from the University of Houston and has a personal knowledge of his practice abilities and competence. The Application/Certification Form The application form, which is challenged as an unpromulgated rule, sets out an activity section for the benefit of the Board which would indicate if a candidate has been approved for certification, the assigned certification number if approved, and other items related to this review. The application form contains a place where the applicant sets forth his or her name and the mailing address. The application form identifies the fact that $100 fee for application is required. The form asks that the candidate name the school or college of optometry which he or she attended and the year of graduation, and to provide and 8 1/2 X 11 inch photocopy of the diploma received from that school. The application form provides for the applicant's signature which is to be notarized. The application form in its second page gives further instruction and cites the text of Rule 21Q-10.001, Florida Administrative Code, and Rule 21Q-10.002, Florida Administrative Code. The latter rule deals with the administration and prescription of topical pharmaceutical agents. The application form in its substance, set out in Sections 1 through 4 of the first page, establishes the exact formula for obtaining certification to practice optometry, beyond the payment of fees and other preliminary matters which have been addressed in these factual findings. In effect, there are four alternatives by which a candidate may obtain certification. This has formed the basis for examining the credentials of candidates since the inception of the certified optometrist program within the State of Florida. The only changes that have been made concern the fact that the application form has been expanded upon through the recognition of additional postgraduate courses which could count toward the obtainment of 110 hours of approved coursework in general and ocular pharmacology. The form does not contemplate the idea of independent testing to address the third statutory criterion. The details of the four alternatives are as set forth below: 1. I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which his certified to the Board that graduates received 110 hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination (463.0055(1)(a)(c)). At least one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of the optometric training for graduation (463.0055(1)(b)). Optometrists who graduated from the following schools in the year listed below, or in subsequent years, have been approved by the Board as meeting all of the requirements of 463.0055(1)(a)(b)(c) F.S. PLEASE CHECK THE APPROPRIATE BOX, IF THIS IS YOUR CATEGORY. Univ. of Alabama 1973 Univ. of Houston 1975 U. of CA at Berkley 1977 Illinois College 1976 Southern California 1979 Indiana Univ. 1976 Ferris State College 1979 Univ. of Missouri 1984 Pennsylvania College 1976 Southern College 1976 Waterloo, Canada 1976 New England College 1977 Northeastern State 1983 Ohio State 1972 Pacific University 1977 State Univ., New York 1975 I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which has certified to the Board that graduates received 88 or more hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination. At least one year of supervised experience in differential diagnosis of eye disease or disorders which included as part of the optometric training for graduation. I graduated from the school checked below and have attended the following approved courses, as indicated, to meet the 110 hour requirement for certification. SCHOOLS Univ. of Houston 1966-74 90 hours Illinois College 1974-75 102 hours Waterloo, Canada 1972-76 84 hours COURSES (attach verification of passing the exam) FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/83 6 hours FOA/Univ. of AL-10/85 6 hours FOA/Univ. of AL-10/86 6 hours FOA/PA College-5/78 6 hours FOA/PA College-10/84 6 hours I am applying to become a certified optometrist based on 88 or more hours of approved transcript quality courses in general and ocular pharmacology, which included clinical training and passing a Board-approved examination. At least one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of my optometric training for graduation. The following courses have been approved by the Board as meeting the criteria above: (Check any courses you attended and attach proof of passing the exam.) PA College Course 750B 110 hours Illinois College Courses 1986-87 85 hours PA College Course 701 98 hours PA College Course 701 105 hours Florida Optometric Assoc/ PA College 1/31/87 110 hours If applicable to meet the 110 hours, the following approved courses may be included in your documentation for certification: FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/85 6 hours FOA/PA College-5/78 6 hours FOA/Univ. of AL-10/85 6 hours FOA/PA College-10/84 6 hours FOA/Univ. of AL-10/86 6 hours I do not fit into any of the above categories. However, my educational coursework and clinical training meet all three (3) requirements of 463.055(2)(a)(b) and (c). I have attached a detailed report and all required documentation as necessary. Sections 1-4 within the application form are based upon the information gathered by Dr. Jacobs from the schools of optometry and concerning postgraduate coursework. The Certification Committee reviewed the information which Dr. Jacobs had gathered, and made a recommendation to the Board pertaining to how the information should be used. Dr. Jacobs presented a suggested format for the application form to the Board's office based upon the charts he prepared which summarized the information he had gathered. The Board's office modified Dr. Jacobs' suggested format and sent it to the Board members for their approval. After the Board approved both the use of the information gathered and the format of the application, the Board office prepared the application form for printing and distribution. By including the information concerning the school and year attended by the applicant, the Board was able to avoid having to search through existing Board licensure files which already contain this information and also enabled the Board to refer to the data which the Board had already gathered and analyzed, without the necessity to do it for each applicant. The Board did not accept the form alone in its decision-making process. The associated documentation was reviewed by the Board prior too approval for certification. Applicants were disqualified if they did not provide proper documentation. The Certification Committee reviewed all individual applications and made recommendations to the Board. Each application was reviewed individually by two different committee members. If the two committee members disagreed on certifying the applicant, the third member of the committee reviewed the application and cast the deciding vote concerning whether to recommend certification or not to the Board. The Board then voted on the application and decided whether or not to certify the applicant. The form was designed to act as a facilitator. Nonetheless, it is the substantive standard for review in all instances. The application form implements the Board's previous decision to accept the substantive information which it had been provided. Within the form, Section 1 applicants are those optometrists relying solely on their graduation from one of sixteen optometry schools in the United States and Canada on or after the year designated on the form for that school. Section 2 applicants are those optometrists relying on graduation from the University of Houston (1966-1974), Illinois College of Optometry (1974-1975), or University of Waterloo (1972-1976), in conjunction with completion of courses sponsored by the Florida Optometric Association. Section 3 applicants are those optometrists seeking certification based on completion of one post-graduation "core course" of 83 hours or more, and additional continuing education courses necessary to achieve the 110-hour total. Section 4 was created for applicants who may not fit in any of the three previously-described sections, but who may be able to establish their qualification for certification through other means. An example of use of the form is that when an applicant checked Section 1 on the form indicating the school and year of graduation, the Board reviewed the diploma to determine whether the graduation date on it coincided with the date of graduation, and the school checked in Section 1. Having previously determined that graduates of that institution subsequent to the year indicated on the form satisfied the statutory criteria, the Board used the form to confirm the applicant's credentials in the request for certification. The determination as to whether or not to certify the applicant was made after the Board examined the application form and verified that the applicant had graduated from that particular school by checking the diploma, signature, and notary certificate. Section 3 of the form shows eleven courses. As mentioned before, there are other courses that since have been determined by the Board to be acceptable towards the 110 hour total. These courses were not listed on the form because the Board was unaware of them at the time the form was printed. An applicant under Section 3 who wanted to claim credit for courses which were not listed, could write in those courses and send documentation from the school in the form of a letter or transcript which indicated that the applicant had been tested on the course and had passed the exam. The Board would then confirm that the course was given and would review the exam for course quality. With respect to applicant who checked Section 3, the Board also determined satisfaction of the one year of supervised clinical experience requirement by referring back to the information which had been provided previously by the optometry schools. For Sections 2 and 3 applicants, the continuing education courses relied on to supplement optometric school coursework or post-graduation "core courses" were all sponsored by the Florida Optometric Association in conjunction with optometric schools. Section 4 of the application form afforded applicants who did not fit categories 1, 2 or 3 an opportunity to demonstrate that they satisfied the statutory criteria. For instance, one applicant who applied under this category was a pharmacist before he was an optometrist. He did not fit into any of the other categories because his coursework was obtained in pharmacy school, and he wished to rely on that training to satisfy requirements for certification. A review of the minutes of the Board meetings from the amendment of Chapter 463 in June, 1986, through August, 1987, indicates that the certification form was not adopted as a Board rule. Dr. Walker, Board member, in his testimony confirmed that the application form was not adopted as a Board rule. The certification form-was first used by the Board at the first meeting at which it certified optometrists, April 11, 1987. It certified 455 optometrists at that first meeting; 200 more at its May 9, 1987 meeting; 174 more at its July 6, 1987 meeting; and 45 more at its August 28, 1987 meeting. Of the continuing education courses for which information is available, the "smaller courses" of 10 hours or less were offered in a "seminar" setting, with faculty from optometry schools, most notably UAB, Pennsylvania, Southern College, New England, Indiana, and Houston. In addition to the Florida Optometric Association, other non-school entities such as the Southern Council of Optometrists, the American Academy of Optometry, the Southwest Florida Optometric Association, the Northeast Florida Optometric Society, and the Bay Point Anterior Segment Symposium, Inc., sponsored some of these continuing education courses. Some of the approved continuing education courses described in the form were given at resorts, hotels, or meeting centers. Legislative Intent Petitioners' Composite Exhibits Nos. 6 and 7 were offered in an attempt to describe legislative intent related to Senate Bill 3-B, which forms the basis of the amendments to Chapter 463, Florida Statutes, which took place in 1986. This included Section 463.0055, Florida Statutes (1986 Supp.). Having considered those exhibits and the proposed facts of the parties, the intent which the Legislature had in the passage of Section 463.0055, Florida Statutes (1986 Supp.) cannot be gleaned. Therefore, conclusions about the meaning of that legislation must be made based upon a literal reading of its text, together with other provisions within Chapter 463, Florida Statutes. In a related vein, the Board of Optometry and the Intervenors have suggested facts concerning an April 15, 1987, Senate Committee on Economic, Community and Consumer Affairs request for information from the State of Florida, Department of Professional Regulation, on the topic of the Board of Optometry's implementation of the certification process. In particular, reference is made to that committee's request concerning which schools and coursework satisfied the 110 hour and one year of supervised clinical experience requirements contained within the statute. The committee also wanted documentation of the procedures and standards used in approving examinations which satisfied the requirement for examination set forth in the third criterion. The Secretary of DPR requested the Board of Optometry to prepare the report and it was prepared and delivered to the Senate Committee. That report generally describes the activities of the Board of Optometry in its efforts at certification, as announced in the fact findings herein. Because the Senate Committee did not respond to the report made by the Department of Professional Regulation, the Intervenors and the Board urge that the silence by the Senate Committee somehow recognizes the acceptability of the procedures employed by the Board of Optometry in its certification process. Likewise, the Intervenors and the Board of Optometry seem to take some comfort in the fact that no further legislation was passed in 1987 pertaining to Section 463.0055(2)(c), Florida Statutes (1986 Supp.), which dealt with the need to have the Board prepare an independent examination document as opposed to the technique which has been employed of using other examination instruments to satisfy the terms of that statutory reference. The exact position of the Senate Committee concerning this dispute and the need for independent testing to address the third criterion is not described in this record, nor can its silence or that of the full Legislature in its 1987 Session be seen as creating any inference about the proper construction to be given the language within Section 463.0055, Florida Statutes (1986 Supp.), and especially Section 463.0055(2)(c), Florida Statutes (1986 Supp.). Standing Ophthalmologists and optometrists who practice their professions in Florida are to a significant extent offering similar health care. In particular, the opportunities provided the certified optometrist for practice coincide with part of the practice available to ophthalmologists. Petitioner, Florida Society of Ophthalmology, is an organization concerned with, among other things, the educational interests of ophthalmologists and the quality of eye and health care delivered to the patients of ophthalmologists. It is also concerned on behalf of its members about the quality of eye care and health care of Floridians treated with medication by optometrists. Petitioner Florida Medical Association has the same concerns, responsibilities and purposes. Petitioner, Tully C. Patrowicz, M.D., is a physician and ophthalmologist practicing in Mount Dora, Florida, since 1972. Dr. Patrowicz is a Board-certified ophthalmologist since 1974, and is also a past officer and president of Petitioner Florida Society of Ophthalmology. He is currently a member of both Florida Society of Ophthalmology and Florida Medical Association. Petitioner, William J. Broussard, M.D., is a physician and ophthalmologist who has practiced in Melbourne, Florida, since 1967. He is a Board-certified ophthalmologist since 1966. Dr. Broussard is also a member and former office of Petitioner Florida Society of Ophthalmology. Florida Optometric Association is a not-for-profit organization with membership comprised of licensed optometrists in Florida. The purpose of Florida Optometric Association is to promote and protect the general public in ensuring the availability of high quality optometric services at affordable prices. Approximately 850 of the 1,100 practicing optometrists in Florida are members of Florida Optometric Association. Approximately 650 certified optometrists are members of Florida Optometric Association. Florida Optometric Association participates in administrative proceedings, legislative activities, and court litigation on behalf of optometry. The president of Florida Optometric Association has authorized retention of counsel for those purposes with the permission of the Executive Board and a vote of the membership. Florida Optometric Association members who are certified optometrists are subject to Rule 21Q-10.001, Florida Administrative Code. Florida Optometric Association participated in the legislative activities which resulted in the Optometric Practice Act of 1986. Dr. Howard J. Braverman, O.D., is President of the Florida Optometric Association and is a certified optometrist engaged in the active practice of optometry in Florida. If the certified optometry rule is invalidated, it will have a significant impact on the practice of certified optometry by Dr. Braverman and by the members of the Florida Optometric Association who are certified optometrists. It would also significantly affect their patients. Petitioner Baxter H. Byerly, M.D., and Intervenor Frank A. Broome, O.D., did not appear at the hearing and no indication was given concerning the exact nature of their claims as petitioner and intervenor, respectively. Respondent State of Florida, Board of Optometry, is an agency of the State of Florida within the Department of Professional Regulation with authority to regulate the practice of optometry. Sections 463.001, 463.003, 463.005, Florida Statutes (1986 Supp.). Activities subject to the Board's regulatory and rulemaking authority include standards of practice of optometry, the administration and prescription of topical ocular pharmaceutical agents, and the certification of optometrists to administer and prescribe such drugs in their practice. See Sections 463.005(1)(a) and (g), and 463.0055, Florida Statutes (1986 Supp.). Respondent State of Florida, Department of Professional Regulation, is an agency of the State of Florida that generally assists the various professional regulatory Boards, such as the Respondent Board of Optometry, in the examination and licensure of professionals. See Section 455.217, Florida Statutes.
Findings Of Fact Each of the Petitioners qualified and took the State of Florida examination in July 1987 for licensure as a podiatrist. Initially, there were nine Petitioners in these proceedings, but four were subsequently given a passing grade on review of their examinations, and these four Petitioners were dismissed. Each of the Petitioners successfully passed national board examinations for podiatrists prior to sitting for the July 1987 examination here at issue, and all failed to receive an average grade of 75% on the nine subjects on which they were examined. The questions included in the July 1987 examination were taken from a large group of questions assembled into each category or subject on which the applicant for licensure is tested. To compile these questions and put together an examination, a group of experts in the field of podiatry was assembled to determine the subjects to be included on the examination. These subjects were subsequently enacted in Rule 21T-11.002, Florida Administrative Code. These subjects were referred to "item writers", generally academicians in the field of podiatric medicine, each of whom prepared a minimum of 50 questions on each subject. Upon return of these questions to Respondent, these items were reviewed by five content specialists on the Board of Podiatry to insure the validity of the questions and then placed in the item bank from which a certain number from each subject is withdrawn for the examinations. Not all of the items submitted by the item writers are found valid in this review and added to the item bank. For the 1987 examination, no new items were entered, and all questions used were taken from the item bank. Accordingly, most of the questions had been used on earlier examinations. In selecting questions for the 1987 examination, certain questions used on the 1986 examination were used so the group being examined in 1987 can be compared to the group examined in 1986. Comparing the correct answers given by the 1986 group of examinees to these questions common to both examinations, with the correct answer given by the 1987 examinees, showed the earlier examinees performed better than the group in which these Petitioners were examinees. Projecting that percentage to the entire examination shows the 1986 examinees scored five to eight points higher than the 1987 group overall. When the 1987 examinations were scored initially, only some 31% of those taking the examination received a passing grade. These scores were obtained from a computer scoring of the answer sheet submitted. Following receipt of these results, those questions which were marked incorrectly by the highest number of examinees were reviewed and submitted to the Board for review. As a result of this review, some of those questions were credited as being correct if another choice than the correct choice were selected by the examinee or if the exam key was in error. The tests were regraded, and those scores were sent out to the candidates with a notice of their right to challenge questions and answers. Following the candidates being given an opportunity to review the questions and answers on their individual examination with DPR personnel, the Test Development Specialist at DPR, Mrs. Hall, who is in charge of preparing the podiatry examination, again reviewed the questions and answers and presented to the Board a list of questions (by number) for which a large number of examinees had submitted an incorrect answer, to have the Board reconsider to determine if these questions were too difficult and to give credit for any answers as correct. As a result, the Board gave additional credit to all examinees, and four of the original nine Petitioners received a passing grade. A total of 57 adjustments were made in these scorings involving miss-keys, ambiguous questions and too difficult questions. Petitioner presented two witnesses who purported to testify to the merits of this challenge. Dr. Black is a podiatrist at Bay Pines Veterans Administration Hospital near St. Petersburg who operates a residency program in which he has trained four residents each year for the past five years. Petitioner Ellison is the only resident in Dr. Black's program who failed the Florida Podiatry examination, and Dr. Black considers Ellison to be as fully qualified for licensure as the other residents who completed the program and passed the examination. Petitioners' other witness, who was also not a Petitioner, was James F. Pruchniewski. This witness was an original Petitioner who received a passing grade on a regrading of the examination and withdrew his petition for hearing. Dr. Pruchniewski opined that the July 1987 podiatry examination was "inferior". He had earlier been a science teacher in high school and had frequently checked examinations prepared by fellow teachers. He has never been involved in preparing professional examinations, but considers the initial 31% passing rate to be outrageously lopsided. In view of this witness' lack of experience or training in preparing or grading professional examinations, his opinions are given little weight.
