The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
Findings Of Fact At all times relevant hereto Respondent was licensed as a physical therapist assistant in Florida. He has held a physical therapist assistant license for approximately 18 years and worked approximately five and one-half years as an orthotec. In June 1985, Respondent was employed by Southeast Rehabilitation Services (Southeast) as a physical therapist assistant. On or about June 3, 1985, a patient had been transferred to Southeast with one knee immobilized. The physician's order transferring the patient to Southeast directed the immobilizer be removed. When Respondent provided treatment to the patient, he removed the immobilizer without first having received written instructions from the physical therapist to do so. On or about June 11, 1985, Respondent provided treatment to a patient at Southeast which consisted of strengthening exercises using small weights, when the physical therapist orders called only for range of motion exercises without weights. Respondent had been working at Southeast only a short while and had been taken on rounds by another physical therapist assistant. When Respondent gave treatment to this patient on his own, he couldn't locate the patient's chart and relied on his memory to provide treatment. He thought he remembered the other physical assistant gave this patient strengthening exercise, but this was incorrect. Respondent readily acknowledged committing the violations alleged, but contended the June 11 incident was a simple mistake and that he had followed physician's orders at other physical therapy centers at which he had worked, without waiting for written orders from the physical therapist.
Findings Of Fact Petitioner, Constance M. Liccione, is a licensed clinical laboratory technician, having received said license in October, 1979 from respondent, Department of Health and Rehabilitative Services (HRS). In the summer of 1983, petitioner began making inquiry with HRS concerning the requirements to take the clinical laboratory supervisor examination. Because of either a communication's breakdown, or a failure of the agency to promptly reply to her request, she was not told of the specific requirements until 1984, and it was only in April, 1985 that she was able to get confirmation from HRS that she had nine years and one month of clinical experience, and when coupled with her 90 semester hours of academic study in the science field, she was eligible to sit on the supervisor examination. For some unexplained reason, she also was unable to obtain an application form from HRS and finally she had to obtain one from a local junior college. On April 5, 1985, Liccione filed her application to take the October, 1985 supervisor examination. At that time, the examination consisted of two parts: (a) administration and supervision, and (b) technical specialties for which the applicant wished to be licensed. In June, 1985, HRS adopted a sweeping change in its rules (Chapter lOD-41) governing eligibility for all supervisor examinations taken after October, 1985. Under the new rules, HRS requires an applicant for licensure as a supervisor to meet all new requirements for a clinical technologist. This will require Liccione to either have a bachelor's degree in science, or to have completed 90 semester hours or equivalent and to have completed a one-year internship in an approved school of Medical Technology. In addition, in view of the more stringent eligibility requirements, the examination no longer includes testing on the technical specialties, but only has testing in the administration and supervision area. Liccione meets neither of the two new requirements. Therefore, she is barred from taking any examination after the October 1985 examination until she either obtains a college degree in science or completes a one-year internship. Liccione is understandably upset because it took almost two years to learn from HRS if she was qualified under the old rules to take the supervisor examination, and therefore she missed 3 or 4 opportunities to take the examination under the old criteria. Because of the new rules, it is now an all or nothing proposition on the October, 1985 examination. When Liccione became aware of the impending rule change, she contacted HRS to determine if she could get a waiver of the old rule which required her to take an examination in various technical specialties. The old rules required supervisor candidates to pass an examination in each of the specialties or subspecialties for which the license is sought. Based upon her nine plus years of experience, Liccione desired a waiver in the five technical specialties of microbiology, serology, chemistry, hematology and immunohematology for which she is already licensed as a technologist. After considerable give and take between the two, HRS agreed to present her request for a waiver to the Clinical Laboratory Advisory Council (Council). The Council considered the same on October 3, 1985 and denied her request. That prompted the instant proceeding. As a result of HRS's decision, she was required to take both parts of the old examination. Her results are not of record. There have been no waivers of the technical specialty part of the examination granted since HRS began regulating clinical laboratories in 1967. However, under the provisions of Rule 10D-41.27, Florida Administrative Code, as they existed prior to June, 1985, examination in each of the specialties area was permissive, and not mandatory since the rule merely required that ". . . supervisors. . . may be required to pass an examination given by (HRS) in each of the specialties. . . for which the license is sought." (Emphasis added.) Liccione presently has an HRS issued temporary supervisor license which expires after she receives the results of the October, 1985 examination. She is acting as the supervisor of a clinical laboratory for a medical doctor in Port St. Lucie, Florida and as such is in charge of all technical aspects of the operation. She has written the procedures manual for the laboratory which was approved by HRS inspectors, and is active in all five specialties for which she seeks a waiver. As noted above, by this time she has almost ten years of practical experience, and has worked in hospitals and laboratories in both a technician and supervisor capacity. These qualifications were not disputed. At final hearing HRS did not question the above qualifications but relied instead upon statistics which reflected that candidates with qualifications comparable to Liccione had done poorly on the examination. It also pointed out that when Liccione took the specialties examination for a technician, her scores were "never. . . more than 4% higher than minimum established competency in any technical specialty." From this, HRS opined that Liccione's chance of success on the examination was not good, and that she was not entitled to the requested waiver. It also fears that a bad precedent will be set if Liccione's request for a waiver is approved. However, the undersigned finds the uncontradicted practical experience, education and training to be the more persuasive and credible evidence on the issue of whether such training, education and experience is adequate to warrant a waiver of the five technical specialties on the examination. In this regard, it is noted that there was no evidence to show that such experience, education, and training was not comparable to the new requirements in Rule 10D-41.69(2), Florida Administrative Code, or that such experience, education and training was not adequate to demonstrate competence in the five specialties in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for a waiver of the technical specialty part of the October, 1985 examination be GRANTED, and if petitioner receives a passing grade on the administration and supervision portion of the examination, she be issued a clinical laboratory supervisor license. All other requests for relief should be DENIED. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2Oth day of January, 1986. COPIES FURNISHED: James A Liccione 168 S.W. Selva Court Port St. Lucie, Florida 33452 K. C. Collette, Esquire 111 Georgia Ave., Third Floor West Palm Beach, Florida 33401
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background By application dated March 29, 1989, petitioner, Stuart B. Novick, sought licensure by examination as a psychologist. The application was filed with respondent, Board of Psychological Examiners (Board), which has statutory authority to license and regulate the psychologist profession. In action taken act its August 1989 meeting, the Board voted to deny the application on the ground petitioner did not satisfy the educational and work experience requirements imposed by statute and rule. In addition, the Board concluded that Novick had not submitted proof of completion of an educational course concerning HIV and AIDS, as required by agency rule. This decision was conveyed to Novick in an order issued by the Board on September 15, 1989. This proceeding involves petitioner's challenge of that preliminary decision. The specific objections to licensure will be dealt with separately in the findings below. Educational Requirements The Board's preliminary decision made the following findings pertinent to petitioner's education: Your doctoral program was not completed at an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Education or an institution which is publicly recognized as a member in good standing with the Association of Universities and Colleges of Canada. In addition, your doctoral program was not approved by the American Psychological Association as required by Chapter 490.005(1)(b), Florida Statutes and Chapter 21U-11.006(1)(b)1., 9., and 10., Florida Administrative Code. Petitioner received a bachelor of arts in political science from the University of California - Los Angeles in December 1970. He then obtained a masters degree in educational psychology and guidance from California State University Northridge in January 1974. In the summer of 1977 he enrolled at California Graduate Institute (CGI), an institution of higher learning in Los Angeles. After attending CGI fulltime for approximately five years, Novick was awarded a doctorate in psychology in October 1982. At issue in this case is whether CGI and its psychology program meet the requirements of the law for licensure. According to applicable statutory requirements, petitioner was required to submit satisfactory proof that he had received a doctoral degree with a major in psychology from a program which at the time petitioner was enrolled and graduated was accredited by the American Psychological Association (APA). As to this requirement, Novick conceded that when he attended CGI from 1977 until 1982, that institution was not fully accredited by the APA. Therefore, petitioner did not meet that requirement. In lieu of satisfying the requirement described in the preceding paragraph, petitioner was authorized by law to submit satisfactory proof that he received a doctoral degree in psychology from a program which at the time petitioner was enrolled and graduated maintained a standard of training comparable to the standards of training of those programs accredited by the APA. In this regard, the more persuasive evidence, including the program analysis form submitted by petitioner with his application, shows that petitioner's doctoral program did not require each student to demonstrate knowledge and use of scientific and professional ethics and standards, research design and methodology, statistics, psychological measurements, and history and systems of psychology. The foregoing educational requirements are embodied in Rule 21U-11.006(1)(b)10., Florida Administrative Code, and must be satisfied in order to show comparability. In view of these deficiencies, it is found that petitioner failed to satisfy this part of the requirements for licensure. In addition to the foregoing comparability requirement, petitioner was obligated to show that his education and training in psychology wash received in an institution of higher education fully accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation. As to this requirement, petitioner conceded that CGI's psychology program was not accredited by a recognized regional accrediting body. That admission is corroborated by a letter dated May 15, 1989 from the chairperson of CGI's department of psychology to the Board. Therefore, this criterion was not met. Work Experience In its proposed agency action, the Board cited the following concerns with petitioner's work experience: You have not completed the two years or 4000 hours of supervised experience in the field of psychology as required by Chapter 490.005(1)(c), Florida Statutes, and Chapter 21U-11.006(1) (c), Florida Administrative Code and in compliance with Chapter 21U-17, Florida Administrative Code. The experience under Dr. Milana was experience as a marriage and family therapist, rather than as a psychological resident in compliance with Chapter 21U-17, Florida Administrative Code. As explained further at hearing by the Board's executive director, although petitioner's "supervising psychologist verification form" facially complied with the required work experience in the field of psychology, the Board was concerned with the fact that Novick has been licensed as a marriage and family therapist (MFT) since September 1986, was employed as a MFT when much of the work experience was obtained, and may have rendered services in that capacity rather than as a psychological resident. After graduation from CGI, petitioner was employed as an outpatient therapist by Northside Centers (the center), a mental health clinic in the Tampa area. During the course of that employment, petitioner obtained approval from Dr. Suzette Milana, a licensed psychologist, to train under her supervision as a psychological resident at the center. According to petitioner, as confirmed by Dr. Milana's testimony as well as documents in his application file, he worked, at least part of the time, under Dr. Milana's supervision from July 1984 until the application was filed. The supervising psychologist verification form completed by Dr. Milana reflects that Novick was supervised for 228 weeks, rendered approximately 2200 hours of psychological services to clients, and was employed by the center for a total of 4880 hours. According to Dr. Milana, petitioner is now competent to perform without supervision adult, adolescent and child treatment. Doctor Milana verified that, during his supervised period of employment, petitioner participated in the following activities: evaluation and assessment, intake activity, formulation of treatment plans, treatment intervention, case management and crisis intervention, all being activities normally engaged in by psycholgical residents. However, Novick did no psychological testing since the clinic already had an employee assigned to that job. Even so, there was no evidence to establish that psychological testing is a current required part of a resident's work experience. Doctor Milana described petitioner's supervision to be the same that she received when she was fulfilling her work experience requirement for licensure. By agency rule effective October 3, 1985, the Board imposed the requirement that, during one's training period, an applicant shall be known by the title "psychological resident". In addition, a requirement was added that all business cards, signs, stationery and the like naming the applicant must also bear the name and affiliation of the supervisor/associate. Finally, each resident is obliged to advise each client at the time services are initiated of his status as a resident, the requirements of a supervised status and of the name of his supervisor. The requirement concerning the disclosure of the supervisor's identity is necessary since the supervisor must ultimately take full responsibility for the resident's patients and their treatment. During the period after October 1985 and until the application was filed, petitioner continued to use business cards issued by the center which reflected his title as being a "marriage and family therapist" and did not disclose the name of his supervisor. According to petitioner, he never indicated on any reports or insurance forms that he was a psychological resident. Further, Dr. Milana did not co-sign any reports. Although petitioner told all of his patients that he was an outpatient therapist or a MFT, he told only "some" that he was working under the supervision of Dr. Milana. Except as to these departures from the rule, petitioner's training was in conformity with the Board rule. Course in HIV and AIDS The Board's order noted that Novick had not furnished "proof of completion of an educational course concerning HIV and AIDS in compliance with Chapter 21U-21, Florida Administrative Code". According to Rule 21U- 21.001, Florida Administrative Code (1989), each person applying for licensure subsequent to July 1, 1989 shall be required to complete an educational course approved by the Board and consisting of education on the transmission, control treatment and prevention of Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome with emphasis on appropriate behavior and attitude change. Novick did not submit proof of completion of such a course with his initial application. However, at hearing he stated he had completed a Board approved course at a local hospital in April 1989 and shortly thereafter forwarded a copy of his diploma to the Board. Although no documentary proof was submitted at hearing to support this claim, it was not contradicted by the Board, and it is accordingly found that Novick has satisfied this part of the licensure requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner for licensure as a psychologist by examination be DENIED. DONE and ORDERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1236 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990.
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Alvin V. Walker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in the psychiatric wing of a local hospital with persons suffering from mental illness. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on August 8, 1990. On that date, petitioner was arrested for the offense of "prostitution," a misdemeanor under Chapter 796, Florida Statutes. The circumstances surrounding the incident were not discussed at final hearing. However, the Florida Department of Law Enforcement report stipulated into evidence indicates that on April 30, 1991, adjudication of guilt was withheld by the Duval County Court, and the arrest was sealed. Although the denial of petitioner's request was based solely on his 1990 arrest, at hearing petitioner candidly acknowledged that in 1992 he was invited into the automobile of an undercover police officer in Duval County and was asked what type of sexual things he liked to do. After answering the question, he was given a citation for an undisclosed offense and later pled nolo contendere to the charge. For this, he received one month's probation. Since that time, his record is unblemished. Shortly after the 1992 incident, petitioner began counseling sessions with a mental health counselor. He has continued his therapy since that time. The counselor described petitioner as a "very decent" person with "high morals," and someone who has shown improvement in terms of stability since he began his counseling sessions. From June 1993 until May 1995, petitioner was employed as a rehabilitation counselor with Renaissance Center, Inc. (Renaissance), a residential treatment facility for adults eighteen years of age and older with chronic mental illnesses. In June 1995, Renaissance was acquired by Mental Health Resources and petitioner continued doing the same type of work for the successor firm. He left there in January 1996 for employment with the St. Johns River Hospital as a mental health assistant in the facility's psychiatric unit. In April 1996, however, a background screening disclosed his 1990 arrest, and he was forced to resign pending the outcome of this proceeding. If petitioner's request is approved, the facility will rehire him. Petitioner's former employer at Renaissance established that petitioner was a very conscientious, responsible, and reliable employee who poses no threat to his clients. The employer considered petitioner to be of "good moral character." For the last four or five years, petitioner has been actively involved in the "Outreach" ministry of his church. That program involves providing spiritual support, services and counseling to prisoners in the Duval County Jail each Sunday with follow-up sessions during the week. Members of his church attested to his good moral character. Based on the testimony of witnesses Britt, Toto, Cross and DeWees, as corroborated by petitioner's own testimony, it is found that petitioner has presented sufficient evidence of rehabilitation since his 1990 arrest, he is of "good character," and he poses no threat to the safety or well-being of his clients. The request for an exemption should accordingly be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 10th day of September, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 200-X Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Pauline M. Ingraham-Drayton, Esquire 200 West Forsyth Street, Suite 80 Jacksonville, Florida 32202 Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Bret L. Lusskin (Respondent) was a licensed physician in the State of Florida, having been issued license number ME 0007919. Respondent has been practicing medicine in Florida for approximately 33 years. Respondent is board-certified in orthopedic surgery. On January 8, 1992, the Department of Professional Regulation, Board of Medicine (Board of Medicine) filed a Final Order of disciplinary action against Respondent in DOAH Case No. 90-1565, DPR Case Nos. 89-07389, 89-011684, and 89- 011856. By the Final Order, the Board of Medicine reprimanded Respondent's license and further ordered the following: Within 60 days, Respondent must be evaluated by a psychiatrist approved by the Physician's Recovery Network and must comply with all recommendations of said psychiatrist including entering into and complying with a contract with the Physician's Recovery Network, if applicable. Respondent shall not examine or treat any female patients without a female employee who is a health care professional licensed by the Department of Professional Regulation present in the room. Respondent must complete the continuing medical education course offered by the University of South Florida and the Florida Medical Association entitled, "Protecting Your Medical Practice: Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs," or an equivalent course approved by the Board. Respondent appealed the Board of Medicine's Final Order to Florida's Fourth District Court of Appeal, Case No. 92-0251. The appellate court filed its decision, which was "Per Curiam Affirmed," on December 9, 1992, and issued its Mandate on February 26, 1993. On April 7, 1993, the Board of Medicine filed a Final Order of disciplinary action against Respondent in DPR Case Nos. 90-03022 and 92-03622, in which Administrative Complaints were filed against Respondent. One of the Administrative Complaints, Case No. 92-03622, filed on July 13, 1992, was based upon Respondent's failure to present himself for evaluation by a psychiatrist approved by the Physician's Recovery Network (PRN) within 60 days of the Board of Medicine's Final Order filed on January 8, 1992. The Final Order in DPR Case Nos. 90-03022 and 92-03622 approved a consent agreement involving the cases. The consent agreement provided, among other things, that Respondent neither admitted nor denied the allegations of fact in the Administrative Complaints, that Case No. 92-03622 be dismissed, that Respondent be reprimanded, and that an administrative fine of $2,000 be imposed. On January 29, 1993, following the appellate decision, a psychiatric evaluation of Respondent was performed at the University of Florida, College of Medicine in Gainesville, Florida, by Dr. George W. Barnard, M.D., a psychiatrist, and Dr. Michael J. Herkov, Ph.D. Dr. Barnard was a professor and Director of the Forensic Psychiatry Division at the University, and Dr. Herkov was an assistant professor at the University. Dr. Barnard was approved by PRN. Among other things, Drs. Barnard and Herkov administered several psychological tests to Respondent. The tests were the Minnesota Multiphastic Personality Disorder (MMPI), Million Clinical Multiaxial Inventory (MCMI), and the Rorschach Inkblot Test. Drs. Barnard and Herkov opined, among other things, that Respondent suffers from a "dysthymic condition" and from "characterological problems that play a considerable role in his [Respondent's] behavior." Further, Drs. Barnard and Herkov opined that Respondent denies any responsibility for his inappropriate conduct, instead blaming his patients, and that such denial places Respondent "at serious risk to continue to engage in these inappropriate behaviors." Drs. Banard and Herkov made several recommendations. Concerned with the "intransigence of [the] characterological traits and the strength and pervasiveness of his [Respondent's] current denial," Drs. Banard and Herkov recommended, among other things, that Respondent participate in a structured and intensive inpatient psychotherapy treatment program, specializing in sex offenders; that, after the inpatient treatment, Respondent receive long-term psychotherapy in his local community with a therapist trained in dealing with sexual offenders, noting that prior outpatient psychotherapy had been ineffective; that periodic reports be made to the PRN; that Respondent become a member of the local Caduceus Group; and that Respondent continue the practice of always having a female assistant present when examining a female patient. Furthermore, Drs. Banard and Herkov stated that Respondent's "motivation for change appears to be poor, and any intervention program hinges to a great extent on patient [Respondent] willingness to change" and that Respondent "may have to be faced with dire consequences before he possesses the necessary motivation to participate in such a program." Respondent desired a second opinion. On April 9, 1993, a second psychiatric evaluation of Respondent was performed at the University of South Florida, Tampa, Florida, by Dr. Anthony Reading, M.D., a psychiatrist, and Dr. Irving B. Weiner, Ph.D. Dr. Reading was the Chairperson of and a professor at the Department of Psychiatry and Behavioral Medicine at the University. Making no specific diagnosis, Dr. Reading opined, among other things, in the evaluation that Respondent does not represent an ongoing danger to female patients through inappropriate sexual behavior and that Respondent has a number of emotionally constricted personality attributes which are under control. Dr. Reading recommended, among other things, that the requirement of having a female professional present during Respondent's examination of female patients be continued and that Respondent receive outpatient psychiatric treatment, conducted by a PRN-approved individual who is trained in the therapy particularly associated with Respondent's problems and who has no prior social or professional relationship with Respondent. A copy of Dr. Reading's evaluation was forwarded to the PRN. A review of the evaluations by Drs. Banard and Reading was conducted by Dr. Raymond Pomm for the PRN. Dr. Pomm was a PRN staff psychiatrist who renders opinions to PRN's director, Dr. Roger Goetz, regarding psychiatric, chemical dependency and boundary violation cases. Based on Dr. Pomm's review, PRN took the position that Dr. Reading's evaluation was based on incomplete information and was, therefore, invalid. Wanting to obtain an independent review, PRN forwarded a copy of the two evaluations performed by Drs. Banard and Reading to Dr. James Edgar, a psychiatrist at the South Tampa Medical Center, Tampa, Florida, for his review. Having reviewed the evaluations, Dr. Edgar reached several conclusions and notified PRN of his conclusions by letter dated May 5, 1993.2 Dr. Edgar concluded that Respondent suffers from "a characterological disorder characterized by narcissistic traits of self-centeredness and relative callousness to the needs of others, denial of personal responsibility for his action and a preference for getting his own needs met without much regard for the needs of others." Dr. Edgar determined that Respondent's prognosis was "extremely guarded if not poor" and that Respondent "shows no evidence of motivation for treatment." Further, Dr. Edgar concluded that Respondent had misrepresented himself to Dr. Reading and that Respondent was a "significant risk" to patients. Moreover, Dr. Edgar concluded that, if Respondent was to be allowed to continue his practice under the auspices of the PRN, Respondent should be participating in a "well structured treatment plan." Dr. Edgar provided specifics regarding the treatment plan, including an autonomous female attendant, inpatient treatment and, after the inpatient treatment, outpatient psychotherapy. Also, Dr. Edgar indicated that he was "pessimistic" that the inpatient treatment would have any significant impact on Respondent's personality structure. Dr. Edgar's report was presented to the PRN. After reviewing the evaluations and Dr. Edgar's report, PRN required Respondent to present himself for admission for inpatient therapy and provided Respondent with a choice of facilities for the therapy. The Menninger Clinic at the C.F. Menninger Memorial Hospital in Topeka, Kansas, was chosen. It was agreed by Respondent and PRN that they would abide by the recommendations made by The Menninger Clinic. On or about May 3, 1993, Respondent presented himself to The Menninger Clinic for evaluation by Dr. Donald E. Rosen, M.D., Director of the Professionals in Crisis Program at The Menninger Clinic, and by Dr. Rosen's staff. However, inpatient admission did not occur. In his report, Dr. Rosen stated, among other things, that Respondent "clearly did not desire inpatient treatment (or treatment in general)"; that Respondent, during the initial interview, "denied the presence of any psychiatric symptoms, psychological conflicts, or presence of any treatment goals that he would hope to accomplish in a treatment process"; and that Respondent was openly cautious and withheld some information, with his withholding being "overt and in other ways, more subtle." Dr. Rosen was, therefore, unable to make any specific recommendation, stating, among other things, that "no specific recommendations for ongoing psychiatric treatment are made at this time." Further, in his report Dr. Rosen addressed the situation of a female attendant being present during Respondent's treatment and examination of female patients. Dr. Rosen was concerned with Respondent's manipulative behavior and stated that, considering Respondent's "long-standing history of sexual relations with his patients, his lack of guilt about these relationships, his inability to see this behavior as a personal ethical issue, and the overt manipulativeness that surrounded this evaluation," he could not "state with confidence that the patient [Respondent] will not attempt to make his employees allow him to see female patients without a female healthcare professional in the room at all times." It is undisputed that Dr. Rosen did not make any recommendations. By letter dated May 6, 1993, to Respondent and written at Respondent's request, Dr. Rosen confirmed that Respondent presented himself for inpatient admission but was not admitted. Furthermore, Dr. Rosen stated the reasons for Respondent not being admitted, which were because Respondent "denied the presence of any psychiatric symptoms, denied any psychological problems you [Respondent] wished to work on, and had no goals for what you [Respondent] hoped treatment would accomplish." These reasons were the same reasons expressed in Dr. Rosen's report. Inpatient treatment could not be accomplished, if Respondent refused to admit that he had psychological problems and that he needed to work on his psychological problems, and to establish goals for what he hoped the treatment would accomplish. By certified letter dated August 3, 1993, to Respondent, PRN confirmed its request made May 26, 1993, that Respondent not practice medicine until he completed inpatient treatment. Furthermore, in the letter PRN notified Respondent that, before he could return to the practice of medicine, his treating psychiatrist must confirm that he is able to return to the practice of medicine with reasonable safety to the public. By letter dated February 10, 1994, to the then Department of Business and Professional Regulation (Department), PRN notified the Department that Respondent was in violation of the Board of Medicine's Final Order filed January 8, 1992. PRN recapped, among other things, the evaluations performed, including the evaluation at The Menninger Clinic, and the results of the evaluations. Furthermore, PRN advised the Department of the request PRN made to Respondent in May 1993 that Respondent refrain from practicing medicine until he had undergone inpatient treatment at The Menninger Clinic and the same request it had made in August 1993. PRN concluded, among other things, that Respondent had violated the Final Order; that it (PRN) was unable to monitor Respondent, as to refraining from practicing medicine; that Respondent continued to need inpatient therapy at The Menninger Clinic; and that Respondent presented a danger to the public health, safety, and welfare. On July 20, 1994, Dr. Burton Cahn, M.D., a psychiatrist, wrote a letter addressed to "To Whom It May Concern," stating that Respondent "does not represent either a danger to himself or to others." Prior to writing the letter, Respondent was Dr. Cahn's patient from November 1989 through 1991. Dr. Cahn never conducted any diagnostic tests, such as the MMPI, on Respondent. Also, Dr. Cahn is a personal friend of Respondent. By letter dated September 6, 1994, the Compliance Officer for the Board of Medicine notified Respondent that he had complied with all of the requirements of the Final Order dated January 8, 1992. The letter further reminded Respondent of the restriction that a licensed female healthcare professional was required to be present when he treated or examined female patients. However, the Compliance Officer issued the letter in error. She had failed to communicate with the PRN, prior to issuing the letter, to determine whether Respondent had completed the requirements as to the PRN, such as being evaluated by a PRN- approved psychiatrist and complying with the recommendations of the psychiatrist. If the Compliance Officer had communicated with the PRN, she would have been informed by PRN that Respondent had not completed its requirements. Further, legal counsel with the Agency for Health Care Administration (AHCA)3 informed PRN that Respondent was under no obligation to comply with PRN's request of May 1993 and August 1993 to refrain from practicing medicine until he undergoes inpatient treatment at The Menninger Clinic. Moreover, the legal counsel further informed PRN that Respondent was only required to comply with the recommendations of the psychiatrist. By letter dated November 1, 1995, to the legal counsel of AHCA, the PRN again expressed, among other things, its concern that Respondent was capable of manipulating his staff when treating or examining a female patient. The PRN advised the legal counsel that it considered Respondent's impairment to affect his ability to practice medicine and that his impairment "constitutes an immediate, serious danger to the public health, safety and welfare." Subsequently, on February 22, 1996, the Administrative Complaint in the present case was filed by the Petitioner. At that time, the prevailing opinion amongst all of the PRN-approved psychiatrists, except for Dr. Rosen, was that Respondent was suffering from a psychological illness. Moreover, the prevailing opinion amongst all of the PRN-approved psychiatrists, except for Dr. Rosen, was that inpatient therapy was required. Dr. Rosen was unable to make any diagnosis or recommendations. Even though Respondent presented himself for inpatient admission, he was not admitted due to his denial that he had a psychological illness that required therapy; without Respondent admitting that he had a psychological problem, no treatment could be effectuated. Without treatment, Respondent remained ill; he suffered from a psychological illness. Without treatment, Respondent was a danger to his female patients and was unable to practice medicine with reasonable skill and safety to his patients by reason of illness.4 After the filing of the Administrative Complaint in the present case, the parties agreed that Respondent would be evaluated by a psychiatrist acceptable to the PRN. After consideration, including the location of Respondent's practice, which was on the East Coast, and Respondent's wish for a psychiatrist on the East Coast to conduct the evaluation, Dr. Ronald Shellow, a psychiatrist in Miami, was recommended by PRN, but PRN also indicated that Dr. Shellow was not an expert in the behavioral disorder with which Respondent had been diagnosed by other PRN approved psychiatrists. On August 7, 14, and 23, 1996, Dr. Shellow conducted an evaluation of Respondent, with each session lasting one hour. Dr. Shellow administered the Bender-Gestalt and the House-Tree- Person psychological tests. In his report dated September 2, 1996, Dr. Shellow states, among other things, that Respondent related to him the incident involving the female patient, on which the Administrative Complaint in the present case was filed, but that Respondent "would not say whether this had happened with other patients." Clearly, Respondent was not being forthright with Dr. Shellow because, prior to this incident, other incidents involving female patients had occurred. This additional information was not available to Dr. Shellow for his consideration in his evaluation. Again, Respondent was withholding information. In his evaluation, Dr. Shellow opined, among other things, that Respondent was not suffering from a psychiatric disturbance and that Respondent had no psychiatric disorder; however, based on Respondent's history, Dr. Shellow Respondent did have a dependent personality disorder. Dr. Shellow concluded, among other things, that the reoccurrence of the incident with another female patient was "unlikely" as long as Respondent's marriage remained "satisfying" and he continued to "see his psychiatrist on a quarterly basis." Dr. Shellow indicated that Respondent's present psychiatrist, Dr. Cahn, concurred with him. Subsequently, Dr. Shellow received a copy of the evaluation conducted by The Menninger Clinic from Dr. Cahn. Having reviewed The Menninger Clinic's evaluation, which revealed past encounters by Respondent with his female patients, by letter dated November 14, 1996, to Dr. Pomm of the PRN, Dr. Shellow notified PRN that his opinion had not changed. Dr. Cahn had begun treating Respondent again in 1995. His opinion remained, and remains, unchanged. Dr. Cahn is of the opinion that, even though Respondent was suffering from a personality disorder when he first began treating Respondent in 1989, Respondent no longer suffers from a psychological illness and, therefore, requires no psychiatric treatment.5 Dr. Cahn agrees that a personality disorder is a psychological illness. Considering the proof, the opinions of Dr. Cahn are less than persuasive, and it is concluded that Respondent continues to suffer from a psychological illness.6 Furthermore, Dr. Shellow expressed in his letter dated November 14, 1996, that he was of the opinion that Respondent could practice medicine with skill and safety under certain conditions. Dr. Shellow stated that if Respondent "is to continue practicing medicine with skill and safety, he should be in psychotherapy on some sort of sontinuing [sic] basis, and he should be supervised to prevent these actions from occurring again." Regarding the monitoring of Respondent's practice, Dr. Shellow was of the opinion that any monitoring should be devised and decided upon by the PRN and that, with Respondent being in his 60's, Respondent should enter into a contract with the PRN for as long as he practices medicine. Also, Dr. Shellow opined that some way should be developed to use Respondent's skills, but that, if Respondent prevented anyone in his office from reporting to the PRN, Respondent was not practicing medicine with skill and safety. At no time did Dr. Shellow receive or review the evaluations of Drs. Banard, Reading or Edgar. On December 2, 1996, AHCA filed an Order of Emergency Restriction of License against Respondent. His medical practice was restricted as to his treating or examining female patients, monitoring by PRN, and entering into a contract with PRN. On December 30, 1996, Respondent executed an advocacy contract with PRN. In the contract, Respondent designated, among other things, Dr. Cahn as his treating psychiatrist, with whom he would have quarterly psychiatric treatment meetings; Dr. Michael Langone, M.D., as his supervising practitioner; and Gretchen Nelson, a registered nurse, as the female chaperon during his treatment or examination of female patients. Dr. Cahn is known to the PRN. He has been a referral psychiatrist for PRN for several years. Nowhere on the advocacy contract was there a provision to identify the relationship of the supervising practitioner and the chaperon to the physician who is being monitored. Dr. Langone was an associate and employee of Respondent. Nurse Nelson was an employee of Respondent. On January 16, 1997, PRN executed the advocacy contract. By letter dated February 4, 1997, PRN notified the legal counsel for AHCA that an advocacy contract had been entered into between it and Respondent. In March 1997, PRN experienced a problem as to the female chaperon, Nurse Nelson. The PRN telephoned Respondent's office to confer with Nurse Nelson. Upon speaking with Nurse Nelson, among other things, PRN learned that she was not aware of her responsibility as the female chaperon to the advocacy contract and that she was employed by Respondent. By letter dated March 24, 1997, PRN notified Respondent that it had contacted his office several times and had problems contacting the individuals indicated in the advocacy contract; that the contract needed to be reviewed with the individuals; and that the individuals would be receiving random monitoring telephone calls from PRN to access compliance with the contract. Further, PRN notified Respondent that copies of the contract mailed to the female chaperon and the office staff person designated to handout and collect the Patient Survey Form were returned, and PRN requested that Respondent make sure that the individuals receive copies of the contract. After discovering that Respondent had designated an associate and employee as the supervising practitioner, PRN was concerned that Dr. Langone may have a conflict of interest. Also, PRN discovered that Dr. Langone was leaving Respondent's practice. PRN decided to no longer approve Dr. Langone as the supervising practitioner. By letter dated June 2, 1997, PRN notified the legal counsel for AHCA that PRN had attempted to monitor Respondent's practice without success and that Respondent was currently not being monitored by PRN. Furthermore, PRN stated that Respondent, in its opinion, continued to require monitoring by it. Respondent has not been charged with a violation of the advocacy contract. PRN has not notified the Petitioner that Respondent was not in compliance with the contract. Neither Dr. Cahn nor any individual designated in the contract has notified the PRN that Respondent was not in compliance with the contract. Dr. Cahn, Respondent's approved treating psychiatrist, is of the opinion that by having a licensed female professional present when Respondent examines or treats a female patient, Respondent can practice medicine with reasonable skill and safety. Dr. Pomm of PRN is of the opinion that, with a monitoring contract in place and compliance with the contract, Respondent can practice medicine with reasonable skill and safety. However, Dr. Pomm is also guarded as to the success of any future contract due to Respondent's history of manipulation and personality disorder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent violated Subsection 458.331(1)(s), Florida Statutes, in Count II of the Administrative Complaint. Dismissing Count I of the Administrative Complaint. Suspending Respondent's license until he is able to demonstrate that he is able to practice medicine with reasonable skill and safety. Placing Respondent on probation, under terms and conditions deemed appropriate by the Board of Medicine, for five years following the removal of the suspension. Imposing an administrative fine of $2,500. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
Findings Of Fact On January 27, 1989, Gloria Suarez Mujica, Petitioner, applied for examination to be licensed as an occupational therapist by the Board of Medical Examiners, Occupational Therapy Council, Respondent. By Order dated August 16, 1989, the Occupational Therapy Council denied her request. The Board of Medical Examiners has delegated the authority to certify applicants for examination to the Occupational Therapy Council. The rulemaking authority for the policy and procedures concerning occupational therapy rests with the Board of Medical Examiners after review and recommendation by the Council. On March 23, 1980, Ms. Mujica received an Associate in Science degree from Fiorello H. LaGuardia Community College of the City University of New York, and on June 20, 1980, the University of the State of New York certified Ms. Mujica as an occupational therapy assistant. while at LaGuardia, Ms. Mujica successfully completed eight months of internship work, three months in pediatrics, three months in fixed disc and two months in psychology. During the internships, Ms. Mujica worked with actual patients and was supervised and evaluated. The internships constitute successful completion of eight months of supervised fieldwork experience. On July 19, 1980 the American Occupational Therapy Association enrolled Ms. Mujica as a certified occupational therapy assistant. Ms. Mujica was licensed by the State of New York as an occupational therapy assistant on June 20, 1980, and, subsequently, has maintained that license in good standing. In 1980, Ms. Mujica moved to Florida. On November 3, 1980, she was employed as an occupational therapy assistant by South Miami Hospital. Since her employment in 1980, Ms. Mujica has worked consistently as an occupational therapy assistant, except for two maternity leaves of three months each. On June 20, 1982, Ms. Mujica was licensed by the State of Florida Board of Medical Examiners as an occupational therapy assistant and currently maintains that license in good standing. An occupational therapist is trained and licensed to perform independently certain functions which an occupational therapist assistant is not so trained or licensed to execute. Some of those functions include examination and assessment of patients. After assessing the patient, the occupational therapist develops a plan or prescription of treatment for the patient, and the occupational therapy assistant implements the plan. However, an occupational therapist assistant is trained about the plans and, under the supervision of an occupational therapist, does implement them, observing the patient and making suggestions during the course of treatment. Currently, the trend is toward more independent activity by an occupational therapist assistant. In other words, rather than providing direct supervision, an occupational therapist operates as a consultant, leaving the occupational therapy assistant to implement the treatment plan. In fact, Ms. Mujica has worked the majority of her career under the later scheme. During the winter of 1989, the staff of the Council reviewed Ms. Mujica's application for licensure as an occupational therapist and made the determination that Ms. Mujica was qualified to sit for the examination for licensure as an occupational therapist. Under the authority delegated to the staff by the Council, the Executive Director of the Council issued a temporary license to practice as an occupational therapist under the supervision of a licensed occupational therapist on March 23, 1989. Ms. Mujica worked as an occupational therapist until she was notified that the Council had rejected her request for certification to sit for the examination. According to the Executive Director, the Council met on June 14, 1989 and voted to deny her request for licensure. By letter dated June 22, 1989, the Executive Director informed the American Occupational Therapy Certification Board, which administers the examination, of the Council's decision. By letter dated July 11, 1989, the American Occupational Therapy Certification Board, Inc. informed Ms. Mujica that the Council had rejected her request to sit for the examination. This letter was received by Ms. Mujica too late. In good faith, she took the examination on a Saturday in July, 1989. The following Tuesday she received the letter. She was unsuccessful on the examination. On August 16, 1989, the Executive Director informed Ms. Mujica of the Council's decision of June 14, 1989 and revoked her temporary license. The Order issued on the same date states, in pertinent part, The Occupational Therapy Council reviewed and considered your application for licensure on June 14, 1989, in Tallahassee, Florida, and has determined that said application be DENIED, stating as grounds therefore; The six months supervised fieldwork experience that you completed was in an occupational therapy assistant program, not in a program approved and authorized to give occupational therapist training. See 468.209(1)(c), Florida Statutes. The application, however, was filed-under section 468.209(2), Florida Statutes. The dispute here does not center on Ms. Mujica's failure to pass the examination, but, instead, on the Council's decision that Ms. Mujica does not possess the requisite supervised fieldwork experience. Under existent law, Ms. Mujica's supervised fieldwork experience does meet the requirements of supervised fieldwork experience for the purposes of the law under which her application was filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Medical Examiners issue a Final Order stating that Petitioner has met the supervised fieldwork requirement pursuant to subsection 468.209(2), Florida Statutes DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March, 1990. JANE C. HAYMAN 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 19th day of March, 1990.
