The Issue Whether Dunlop violated Rules 21P-1.012 and 21P-6.07, Florida Administrative Code, by permitting an unlicensed person to use his license for the purpose of dispensing optics.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Dispensing Opticians take no action against the license of Francis (Frank) Dunlop. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32304 Thomas F. Lang, Esquire Suite 302 801 North Magnolia Avenue Orlando, Florida 32803 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF DISPENSING OPTICIANS In the Matter of the Suspension or revocation of the License to Practice the Trade or Occupation of Dispensing Optician in this State of FRANCIS NELSON DUNLAP DOAH CASE NO. 77-2291 As a duly licensed dispensing optician authorized to supervise the preparing, fitting and adjusting of optical devices at Vent-Air Contact Lens Service, Florida National Bank Building, Jacksonville, Florida /
The Issue The issue is whether Petitioner is entitled to a passing score on the clinical examination of the July 2002 optometry licensure examination.
Findings Of Fact Petitioner earned a bachelor of science degree in mathematics from Baylor University in 1978 and a doctor of optometry degree from the University of Houston in 1982. He subsequently became licensed to practice optometry in West Virginia and Texas. After practicing for years in West Virginia, Petitioner practiced for 13 years in Texas before moving to Florida in June 1999. In July 2002, Petitioner took the clinical examination portion of the optometry licensure examination. To obtain a license, a candidate must pass this portion of the examination, as well as the portions pertaining to pharmacology and ocular disease and Florida laws and rules. Petitioner has already passed these other portions, so the clinical examination is what he must pass to earn a Florida license. The clinical examination is a practical examination in which a candidate must demonstrate specific procedures. Respondent selects the procedures to be demonstrated on the basis of their importance to the practice of optometry. Respondent scores the clinical examination by averaging the scores of two examiners, who score the candidate's work independent of each other. The clinical examination is divided into two sections, and a different pair of examiners score each section. An examiner must be a Florida-licensed optometrist for at least three years prior to the examination. The examiner may not be under investigation or have been found to have violated Chapter 456 or 463, Florida Statutes. Prior to performing their duties, examiners must attend a standardization program, at which they are trained in identifying the skills to be examined and the standards to be applied. All of the examiners for a specific examination date attend the same standardization program, at which Respondent's coordinators present several hundred slides showing correct and incorrect procedures and answer any questions that examiners may have. In general, Petitioner challenges the work of one of Respondent's staff in rescoring his examination and calculating his score as 74.10. Although still not a passing grade, 74.10 is one point closer to passing than was his originally reported score of 73.10. However, this staffperson rechecked her work and later confirmed that 73.10 was the correct score. At the hearing, Petitioner specifically challenged Questions 33(b), 33(c), 35(b), 37(a), and 38(b). These questions are all from the same section of the examination, so the same two examiners scored each of them. In Questions 33(b) and (c), the candidate must perform tonometry on a nondilated eye and demonstrate the proper mires width and correct mire alignment, respectively. For Question 33(b), Examiner 143 gave Petitioner no credit, noting that the mires width was "too thin," and Examiner 242 gave Petitioner no credit, noting that the mires width was "too thin" and there was "not enough flourescein." For Question 33(c), Examiner 143 gave Petitioner no credit, noting that the mires were "no [sic] aligned," and Examiner 242 gave Petitioner no credit, noting that the "mires [were] off." Petitioner has failed to prove error in either score. For Question 33(b), both examiners found the same condition. The candidate, not the examiner, as Petitioner claimed, is responsible for adding flourescein. Insufficient flourescein would leave the mires too thin. Examiner 242's additional note explains the source of Petitioner's error in Question 33(b). Petitioner's argument that he could still obtain a proper ultimate reading despite insufficient flourescein and thin mires lines misses the point of the question, which is to determine if candidates can take the conventional steps toward the ultimate objective of estimating intraocular pressure. For Question 33(c), both examiners drew similar pictures showing that Petitioner's mires lines were misaligned. Petitioner produced no evidence to the contrary. His argument that he could not have answered Question 34 correctly without solving Question 33(c) misses the point of Question 34, which is merely to determine if a candidate can accurately read a dial. For Question 35(b), the candidate must demonstrate proper illumination of an inferior angle of the eye. Examiner 242 gave Petitioner credit, but Examiner 143 gave Petitioner no credit, noting "poor lighting." It is entirely possible that Examiner 242, who was first to examine the demonstrated angle, found adequate lighting, but, due perhaps to patient movement with no readjustment, Examiner 143 found inadequate lighting. In this procedure, only one examiner can check the angle at a time. For Question 37(a), the candidate must determine the presence of iris processes by showing the correct response and clear focus. Examiner 242 gave Petitioner credit, noting that Petitioner "repositioned [patient] and got focus of angle and answered correctly," but Examiner 143 gave Petitioner no credit, noting "no view or focus." As noted by Examiner 242, Petitioner had to reposition the patient and did so to earn credit for this item. Evidently, Petitioner failed to do so for Examiner 143. For Question 38(b), the candidate must demonstrate the specified angle of the eye with proper illumination. Examiner 242 gave Petitioner credit, but Examiner 143 gave Petitioner no credit, noting "no view of angle." Again, the most likely reason for the loss of a view was patient movement without an accompanying readjustment of the focus. Petitioner has failed to prove that he is entitled to any additional points for the clinical examination portion of the optometry licensing examination that he took in July 2002.
Recommendation It is RECOMMENDED that the Board of Optometry enter a final order dismissing Petitioner's challenge to the clinical examination portion of the July 2002 optometry licensure examination. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 April, 2003. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 A. S. Weekley, Jr. Holland & Knight LLP Post Office Box 1288 Tampa, Florida 33602 Cassandra Pasley Senior Attorney Office of the General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996.
The Issue The issues in this case are whether Respondent used fraudulent, false, misleading, or deceptive advertising and whether Respondent willfully submitted a claim to a third-party payor for services not rendered to a patient; and, if so, what is the appropriate sanction.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of optometry pursuant to section 20.43, Florida Statutes, and chapters 456 and 463, Florida Statutes. At all times material to this proceeding, Respondent was a licensed optometrist in the State of Florida, having been issued license number OPC 1738. Respondent is the owner of One Price Optical in Cape Coral, Florida, where he practices optometry and sells eyeglasses. He opened his business in 2000. For the first 13 years of his business, Respondent advertised in an area newspaper, offering a free eye exam for glasses. The advertisement that he published in newspapers until sometime in 2013 is in evidence. At the top of the ad, the words “FREE EYE EXAM” appeared in large, white, all capital letters, against a solid black background. Immediately below, also on the black background in smaller white, all capital letters, was the following: FOR YOU • FOR GLASSES • PATIENTS 7 YEARS & UP Below the prominent white-on-black section, the ad contained information about the business in black print against a white background. The name of the business was the only print as large as the “FREE EYE EXAM” message at the top of the ad. Looking at the ad as a whole, the eyes are drawn to two messages: “FREE EYE EXAM” and “ONE PRICE OPTICAL.” The smaller black print on the white background identified Respondent as the optometrist, provided the address, telephone number, and hours, and listed names of third-party payors, including Medicare, vision plans, and insurance plans. The bottom of the ad contained one more very small black banner with tiny white print, setting forth a disclaimer required by statute and Board rule, regarding a patient’s right to a refund. N.P. saw the newspaper advertisement, and on October 4, 2012, he went to One Price Optical to obtain his free eye exam for glasses. N.P. already had glasses, but wanted to get an updated prescription. N.P. brought the ad with him. N.P. was greeted by staff member Hope Fior who asked what brought him to One Price Optical that day. N.P told her that he wanted the free eye exam. Patients are asked to complete a two-sided patient information form provided to them on a clipboard. Ms. Fior does not recall whether she was the staff person who gave N.P. the clipboard paperwork to fill out, but her initials, “HF,” appear at the top of the first page in the blank for “staff,” suggesting that it was her. Just as Ms. Fior did not specifically recall that she was the “staff” initialing N.P.’s paperwork--after all, it has been nearly seven years since the encounter--N.P. also did not recall filling out paperwork, although he remembers that he spoke with a female staff member (and Ms. Fior was the only female staff member). Nonetheless, N.P. was able to identify his handwriting on the form, such as his name, address, and telephone number on the first page (the front of the two-sided page). At the bottom of the first page, the form instructs Medicare patients that they “MUST READ & SIGN THE OTHER SIDE.” (Pet. Ex. 2, handwritten p. 29, lower left corner). The second page (the other side of the two-sided form) was referred to by Respondent as the “how are you going to pay” page, requiring patients to select one of several options, initial and/or sign the selection, and sign at the bottom of the page. One section is designated for “If You Have Medicare.” This section states that if a patient has Medicare, “We will bill Medicare for your eye exam according to the Medicare Laws [CPT code] 92004: New Patient, Comprehensive [or CPT code] 92014: Previous Patient, comprehensive. Please provide the staff with your: 1) Medicare card; 2) Medicare Advantage Card; 3) Any supplemental card; 4) Any other non-governmental health insurance card.” Below these provisions, the Medicare section concludes with the following: “If you do not have all of your insurance cards today, we will not be able to exam [sic] you today and will reschedule you.” (Pet. Ex. 2, p. 30). N.P.’s completed “how are you going to pay” page has a handwritten “X” in the box selecting the “If You Have Medicare” section, with N.P.’s initials next to the “X” (because he was a Medicare patient, and, therefore, required to complete this section as written). A check mark also appears next to “Medicare Advantage Card” in the portion requiring the patient to provide staff with insurance cards. Above the “If You Have Medicare” section, a separate section is provided for “Free Exam For Glasses,” with the following description: “The free eye exam for glasses is free. You do not have to buy anything at all. The free exam does not come with any prescription. If you wish, you may pay an exam fee and get a prescription for eye Glasses to take with you.” (emphasis added). At the bottom of this section, two options are provided, with spaces for the patient’s signature. One option is: “I would like the free exam with no RX”; the other option is: “I would like the $48 exam and get my RX.” On N.P.’s completed form, the “Free Exam For Glasses” section has no “X” in the selection box, and neither of the two options was signed by N.P. However, there are hand-drawn circles around the $48 exam option and the signature space to select that option, suggesting that this option was called to N.P.’s attention. There were no circles around the “free exam with no RX” option--the only option that was truly “free.” That option would not have met N.P.’s objective in coming into One Price Optical, which was to get an updated eyeglasses prescription. Another section on the second page is called “Vision Plans.” This section provides: “We will follow all the procedures, rules, and regulations according to the terms of your plan. The free exam for glasses above can not [sic] be combined with any part of your vision plan. You may not mix and match different coupons, promotions, store discounts, etc. with your Vision Plan.” On N.P.’s completed form, there is no “X” in the box provided to select this section, no initials by N.P., and no hand-drawn circles to indicate that this provision was called to N.P.’s attention as potentially applicable. N.P. signed the bottom of the “how are you going to pay” page (with only the Medicare/Medicare Advantage section initialed), next to the handwritten date, October 4, 2012. According to Respondent, his staff would have carefully walked N.P. through the examination and payment options when he came in and asked for the advertised free eye exam. This would have included asking Respondent whether he was covered by Medicare, whether he had “Medicare supplement” insurance coverage, and whether he had any other “vision plan” coverage. If so, he would have been asked to produce his insurance cards and the staff would have investigated what type of coverage was available for eye examinations. According to Respondent, N.P. made the voluntary election to undergo a comprehensive eye examination, which would be paid for under his Medicare Advantage insurance plan, instead of the “free eye exam.” Respondent acknowledged that a comprehensive eye examination must be completed on a patient in order to write a prescription for eyeglasses. One required component of a comprehensive eye examination is an internal examination of the eyes, to the back of the eyes (examination of the fundus). See Fla. Admin. Code R. 64B13-3.007. Respondent admitted that the so-called free eye exam for glasses offered by the advertisement was actually only a “screening” or a “consultation” with a patient to determine if the patient might need eyeglasses. Respondent admitted that the “free eye exam” (screening/consultation) would not be sufficient to enable Respondent to write a prescription for glasses. The advertisement does not mention this. What is offered for “free” is called an “eye exam for glasses,” not a screening that would be insufficient for Respondent to write a prescription for glasses. Staff person Hope Fior acknowledged that the advertisement caused confusion, not only for N.P., but for others. She blamed their confusion on the failure to read the fine print that she believed was in the ad, which she described as making clear that the offer of a free eye exam for glasses could not be used in combination with vision plans. That language did not appear in the advertisement, in fine print or otherwise. Respondent’s claim that N.P. made the voluntary election to forego the advertised free eye examination is contrary to the credible evidence. What N.P. wanted was a “free eye exam for glasses,” as advertised. N.P. was not offered a free eye exam that would have allowed him to obtain an updated prescription for his glasses. Respondent performed an eye examination on N.P. However, Respondent did not complete all steps required for a comprehensive eye examination. In particular, as the parties stipulated, Respondent did not perform a fundus examination on N.P. A comprehensive eye examination, including fundus examination, can be done with or without dilation. Examination of the fundus, the interior examination to the back of the eyes, is generally done after dilation drops are administered. The fundus examination can be done by other means if the patient does not want dilation, but generally dilation is preferable. In fact, Respondent testified that he “always” administers dilation drops, unless a particular patient asks him not to, in which case he makes them sign a form declining dilation. Respondent administered dilation drops to N.P. There is no persuasive evidence establishing that N.P. was resistant to receiving dilation drops, but there is also no persuasive evidence that N.P. was offered a choice or told that he could decline dilation. More importantly, there is no persuasive credible evidence that N.P. was informed before the drops were administered that he would be charged $39.00 as a dilation fee.3/ Instead, N.P. credibly testified that he was not told he would have to pay any fee until later. After Respondent put dilation drops in N.P.’s eyes, he directed N.P. to go down the hall to the reception/store area where eyeglasses are displayed for purchase, and was told he could wait there and look at glass frames while the drops took effect in 15 to 20 minutes. While N.P. was in the optical area, staff member Todd Dutton spoke with him about whether he might want to purchase glasses. The conversation about glasses did not progress, however, because Mr. Dutton also told N.P. that there was a $39.00 charge for dilation, and asked him to pay. N.P. got very upset with this new information, because up until that point, he was still under the impression that he was getting a free eye exam, as advertised. When Mr. Dutton did not retreat from the position that N.P. would have to pay $39.00 for the dilation drops he had received, N.P. walked out, rather than returning to the examination room for Respondent to complete the comprehensive examination. He did not ever return. Inexplicably, Respondent said he was not aware until much later on October 4, 2012, that N.P. walked out. Respondent did not come back for N.P., or send a staff person to bring N.P. back to the examination room, after the short period of time needed for the dilation drops to have taken effect. No explanation was provided for this lapse. It was not until an hour or two later, when Respondent was going over the patient paperwork for the day, that he realized that he never retrieved N.P. to complete N.P.’s comprehensive examination by performing the fundus examination. Respondent completed the patient record form as best he could, as the form he had created did not have an option to indicate an incomplete comprehensive examination, nor did his form provide the option of recording that an intermediate examination was done (which would not require a fundus examination, but would not be sufficient for writing a prescription for eyeglasses). Respondent selected the option called “No Dilation” and circled “Yes” to indicate that dilation was declined. Then he attempted to clarify in handwriting that there was no internal examination because the patient left the office. Despite not performing a fundus examination, Respondent produced a prescription for N.P. that he said he prepared after the incomplete examination. N.P. testified that he does not recall whether he asked for a prescription before he left the office, but he is sure that no prescription was offered to him. Todd Dutton confirmed that there was no discussion with N.P. about a prescription. The prescription presumably could not have been finalized and actually issued to N.P. before the comprehensive examination was completed, so whatever Respondent prepared must be viewed, at best, as preliminary. Respondent’s advertisement that offered a “free eye exam . . . for glasses” was misleading and deceptive. A reader would have been led to believe, just as N.P. did believe, that there would be no charge to anyone--the patient or the patient’s insurer--for an eye exam that would be sufficient to allow Respondent to prescribe glasses. N.P. was misled and deceived by the advertisement, as were others who were confused by the ad’s offer of a free eye exam for glasses. Respondent testified that he discontinued the advertisement, after 13 years of publishing it in the newspaper, sometime the next year (2013) when it came up for renewal. He said that he discontinued it, in part, in response to N.P.’s complaint to the Department, but also because he did not believe the ad was worth the cost of publication. Respondent did not say that he discontinued the advertisement out of remorse for falsely advertising free eye exams for glasses. He was steadfast in disputing the charge that his advertisement was in any way false, misleading, or deceptive. After N.P.’s incomplete examination, Respondent proceeded to bill N.P.’s vision insurance plan. He submitted a claim under CPT code 92004 in the amount of $139.00, and a claim under CPT code 92019 in the amount of $39.00. Current Procedural Terminology (CPT) codes are used by optometrists to define the services provided to patients in submitting claims to third-party payors for payment. Each CPT code has a definition set forth in a book maintained and distributed by the American Medical Association. The CPT code book has been officially adopted by the Department of Health and Human Services as the standard medical data code set, which must be used by “covered entities” under the Health Insurance Portability and Accountability Act, for physician services and other health care services, including vision services. See 45 C.F.R. §§ 162.1000 and 162.1002(a)(5)(vi) and (b)(1). CPT codes have uniform objective definitions that do not change based upon the type of practitioner or setting in which they are used. CPT code 92004 is defined as a comprehensive ophthalmological examination, including fundus examination. CPT code 92019 is defined as an ophthalmological examination and evaluation under general anesthesia. Respondent admits that he did not complete the comprehensive eye examination of N.P. The parties stipulated that Respondent did not perform the fundus examination. Respondent stated that by submitting a claim to N.P.’s vision insurance plan using CPT code 92004, he intended to bill the vision plan for performing a dilated fundus examination on N.P. He admits to having willfully submitted a claim to a third- party payor for services not provided to a patient. Respondent contends he should be excused for submitting the claim because the reason Respondent did not perform the dilated fundus examination on N.P. is that N.P. walked out. While that explains why Respondent did not provide the service to N.P., it does not justify Respondent’s claim seeking insurance reimbursement for a service he admittedly did not provide. Respondent testified that he was left in a quandary as to how to handle the billing, as there was no option for billing the vision plan for three-quarters or some other fraction of CPT code 92004. Petitioner’s expert, Dr. Kline, offered a viable alternative that would have solved Respondent’s quandary without submitting a claim for a service that was not provided. Dr. Kline testified that Respondent could have submitted a claim under CPT code 92002, for an intermediate eye examination. CPT code 92002 is appropriate to use by an optometrist who has performed a less extensive examination than a comprehensive examination. In particular, the fundus does not have to be examined in an intermediate exam. While an intermediate eye examination was insufficient to meet N.P.’s objective of securing a legal updated prescription (which requires a comprehensive eye examination), the unrebutted evidence in this record shows that submitting a claim using CPT code 92002 would have been accurate in identifying the service actually provided to N.P. Dr. Kline opined that submitting no claim to N.P.’s third-party payor was also an option that would have solved Respondent’s quandary, and in his opinion, would have been the most reasonable course of action under the circumstances. It would have been what he would have done. In light of Respondent’s advertisement for a “free eye exam,” Dr. Kline’s opinion is credited: the most appropriate option would have been to not submit a claim to N.P.’s third-party payor, thereby providing a “free,” albeit incomplete exam. Respondent defended his claim under CPT code 92004 for a comprehensive eye exam, under the guise of it being acceptable practice to perform a comprehensive eye examination in more than one sitting. According to Respondent, as long as the examination is going to be completed, it is acceptable to bill the third- party payor for the entire examination after only part of it has been done. This may be true when (as Respondent was told in a seminar), the completion of the exam is scheduled for the next day, within the next few days, or perhaps as much as a week later. For example, on occasion a patient might request to not be dilated on the day the examination is initiated and mostly completed, and arrangements are made for the patient to return for the dilation and fundus examination on a day when dilated eyes do not present a problem for the patient. However, that is not what occurred with N.P. N.P. never contacted Respondent to complete the examination, nor did Respondent ever attempt to contact N.P. to schedule his return for the fundus examination. It was obvious that N.P never intended to return. Indeed, Respondent admitted that he would not have attempted to contact N.P. because of N.P.’s anger when he left One Price Optical. Respondent’s justification for billing the vision insurance plan under the CPT code for a comprehensive examination could only be accepted if, at the time Respondent submitted the bill, arrangements had already been set for the examination to be completed, either because N.P. had scheduled a return visit before leaving, or because Respondent had called the patient and succeeded, before submitting the bill, in scheduling N.P.’s return visit to complete the exam. Under the circumstances here, at the time Respondent submitted the claim to N.P.’s vision plan, he knew that he had not completed a comprehensive eye examination of N.P., and he knew that no arrangements had been made to complete the examination. A fundus examination is a service that is a required component of CPT code 92004. Respondent willfully submitted a claim to a third-party payor for a service that was admittedly not provided to N.P. Respondent also admitted that he did not provide an eye examination to N.P. while under general anesthesia, which is the service defined by CPT code 92019, but he submitted a claim to the third-party payor using that CPT code. Respondent contended that he intended to use that CPT code to submit a claim for dilation charges. Respondent attempted to explain that some vision plans do not strictly follow the CPT code definitions, and some of them use CPT code 92019 to mean dilation. He testified that he just does his best using their claim forms and the descriptions they use for the CPT codes. Respondent did offer evidence that a different vision plan, not the one administering N.P.’s Medicare Advantage plan’s vision benefits, described CPT code 92019 as “dilation” in its online claim form. If a claim submitted to that other vision plan were at issue here, Respondent’s explanation might be accepted as evidence that Respondent did not willfully submit a claim for a service not provided. However, the evidence does not support Respondent’s explanation in this instance. In the “Explanation of Payment” printed from N.P.’s vision insurance plan’s website, CPT code 92019 was specifically described (in the available space) as “ophthalmological examination and evaluation under general an” and not as dilation. (Pet. Ex. 2, p.35) (emphasis added). Respondent said that he does all of the billing and coding for One Price Optical, and that he has tried to find out what is required. His claim that so-called “vision plans” are not considered insurance and do not strictly follow the CPT code definitions rings hollow, at least as applied to the facts here, where everything in N.P.’s patient records speaks to Medicare Advantage health care insurance. The “how are you going to pay” form completed by N.P. directed him, as a Medicare patient with Medicare Advantage insurance, to authorize billing under that coverage, which Respondent’s form assured would be done in compliance with Medicare laws and rules. The claim processing paperwork calls N.P.’s plan “Universal Health Care – Medicare,” and the plan’s explanation of denied payment for the claim under CPT code 92019 used the code definition from the CPT code book.4/ Respondent testified that he always very carefully checks to see how a particular vision plan uses and defines the CPT codes, and that he submits his claims using the CPT codes as defined by the particular plan. He therefore admitted that he willfully submitted a claim to N.P.’s vision plan under CPT code 92019, defined as “ophthalmological examination and evaluation under general an[esthesia].” The undersigned is not persuaded by Respondent’s assertion that in billing under CPT Code 92019, he should be found to have not willfully submitted a claim for a service not rendered because he knew that the claim would not be paid. The fact remains that Respondent knowingly, intentionally, and willfully submitted a claim to N.P.’s vision insurance plan, coded under CPT code 92019, claiming to have performed an eye exam under general anesthesia on N.P. on October 4, 2012, as explained in the Explanation of Payment. (Pet. Ex. 2, p. 35). Whether Respondent intended to get paid or expected to get paid is not germane to the question of whether he willfully submitted the claim for a service not provided.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Optometry, issue a final order finding Respondent guilty of violating section 463.016(1)(f) and (1)(j), Florida Statutes (2012); and, as discipline, imposing a fine of $6,000.00 and issuing a 12-month probationary period on such terms and conditions as the Board deems appropriate. DONE AND ENTERED this 12th day of June, 2019, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2019.
Findings Of Fact Respondent, Rafael Daman, is an optician, having been issued License No. 0001712. (Petitioner's Exhibit 1) Respondent filed an apprentice application with the Board of Opticianry. (Petitioner's Exhibit 1) As part of that application, a form entitled "Apprentice Application to be Completed by Employer" was submitted to the Board of Opticianry. (Petitioner's Exhibit 1) This form is signed and sworn to by Ramon del Busto, M.D., as supervisor of Respondent. (Petitioner's Exhibit 1) Dr. del Busto acknowledged his signature on this document. (Deposition 7) Additionally, Ramon del Busto, M.D., submitted an Affidavit By Sponsor, and swore that he was the sponsor of the Respondent. (petitioner's Exhibit 1, Deposition 5) Respondent was not employed by Ramon del Busto, M.D. (Transcript - 22, Deposition 7, 8, 9) However, Respondent worked as an unpaid employee or student of Dr. del Busto (Transcript -48, Deposition 8, 9) The Apprentice Application to be Completed by Employer was actually completed by the Respondent and a secretary employed by G&B Optical. (Transcript - 36, 38) Ramon del Busto, M.D., signed the Apprentice Application to be Completed by Employer, but had no personal knowledge of the accuracy of the information contained therein. (Transcript - 24, 36, 38; Deposition - 7, 8, 9) Ramon del Busto, M.D., supervised the Respondent when they were both at G&B Optical, but Dr. del Busto was present at G&B Optical only on Tuesdays, Thursdays, and others times as necessary. Transcript - 22, 35, 36, 37, 40, 41; Deposition - 5, 9) However, Respondent was always present when Dr. del Busto was in this office. (Deposition - 9) Dr. del Busto did not remain on the premises while all the work of Respondent was being accomplished. (Transcript - 46)
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of procuring an optician's license by misrepresentation in violation of Subsection 484.015(1)(a) , F.S., and placing Respondent on probation under the supervision of another optician as provided by Subsection 484.015(2)(e), F.S., until Respondent demonstrates compliance with Section 484.007, F.S. DONE and ORDERED this 23rd day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire Davis, Kiesling & McCall 517 East College Avenue Tallahassee. Florida 32302 Mr. Rafael Daman 5426 N.W. 169th Street Mr. Samuel R. Shorstein Miami, Florida Secretary Department of Professional Mr. Fred Varn, Executive Director Regulation Board of Dispensing Opticians 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Petitioner, vs. CASE NO. 82-337 LIC. NO. 0001712 RAFAEL DAMAN, Respondent. /
The Issue The central issue in this case is whether the Petitioner's document filed with the Division of Administrative Hearings on January 8, 1992, which was initially construed to be a petition challenging an existing rule, and which was assigned to the undersigned on January 16, 1992, should be dismissed as argued in the motion to dismiss filed by the Respondent on January 28, 1992.
Findings Of Fact Petitioner is a second year medical student currently enrolled at the University of South Florida, College of Medicine, in Tampa, Florida. Petitioner is a licensed optometrist in the State of Florida and graduated valedictorian from the University of Houston, College of Optometry in May, 1990. In Florida, the Board of Optometry (Board) retains licensed optometrists who write the questions for the licensing examination administered by the Board. In some instances, the same examination drafters are retained by the Board to administer the practical portions of the examination. Thus, the drafter of the questions may proctor the examination given to examinees. Further, in some instances, the examination drafters have working in their employ unlicensed optometrists or optometry students who receive training from such employer. When that occurs, the unlicensed employee may receive assistance from the employer not available to others who would seek licensure by examination. This appearance of assistance or potential assistance is created because the drafter of the examination is also the grader and employer of the unlicensed person who must be tested for licensure. It is the Petitioner's position that licensed optometrists who provide both the content of the written test and administer the practical portions of the examination for licensure should not also serve as mentor or employer of those seeking licensure by the same examination. Petitioner has not cited an existing rule that regulates the activities described. Rule 21Q-4.006, Florida Administrative Code, adopts by reference Rule 21-11.014, Florida Administrative Code, as the rule governing examination security and monitoring for the Board. That rule provides, in pertinent part: Any individual found by the Department or any board within the Department to have engaged in conduct which subverts or attempts to subvert the examination process may have his or her scores on the examination withheld and/or declared invalid, be disqualified from the practice of the profession, and/or be subject to the imposition of other appropriate sanctions by the Department or, if administered by a board within the Department, by the applicable board. Conduct which subverts or attempts to subvert the examination process includes: Conduct which violates the security of the examination materials. . . Petitioner has not alleged that anyone violated the foregoing rule. Rather, Petitioner maintains that allowing the activities described above to continue gives the appearance of impropriety or increases the potential for impropriety.
Findings Of Fact The following facts are based upon the stipulation of the parties (Exhibit 1): Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Massachusetts in 1979. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Connecticut in 1980. Petitioner, KAREN G. THIBODEAU, was an apprenticed optician with various licensed opticians in the States of Massachusetts and Connecticut for the past four to five years. Petitioner, KAREN G. THIBODEAU, on or about May, 1980, while living and employed in Connecticut, made a telephone call to the Board of Opticians in the State of Florida, with reference to her eligibility in taking the examination for a dispensing opticians license. After Petitioner detailed her formal training and work experience, she was advised that she was qualified to take the Florida Opticians Examination as the result of her having been licensed in both the States of Massachusetts and Connecticut and having five years apprentice experience. The Board of Opticians then mailed her an application form which she filled out and returned to them with a seventy five dollar ($75.00) money order for the examination and twenty dollars ($20.00) to register with the State of Florida. As a direct result of this telephone conversation with a representative of the Board of Opticians of the Department of Professional Regulations of the State of Florida, the Petitioner, KAREN G. THIBODEAU, quit her job in Connecticut and moved to Florida anticipating taking the aforesaid examination. After she had moved to Florida in reliance of the representations made to her by the Board of Opticians, she was notified that she was not qualified to take the said examination. Petitioner's application was considered by the Board of Opticianry on July 10, 1981 in Tallahassee, Florida and it was found that the Petitioner, KAREN G. THIBODEAU, did not meet the statutory requirements of s. 484.007(1), Florida Statutes (1979), although at the time she contacted the Board, she did meet the requirements of s. 484.03, Florida Statutes (1977), which was the prior licensing statute for the Board of Opticianry and was no longer in effect at the time. The Board further held that they did not have the authority to admit Petitioner, KAREN G. THIBODEAU, into the examination .for licensure as an optician in the State of Florida since she did not qualify under the current statute, s. 484.007(1), Florida Statutes (1979), even if they felt she had relied on the Board's prior representations that she would be allowed to take the examination to her detriment. The sole issue for consideration at this hearing is whether the Board of Opticianry has the authority to allow the Petitioner, KAREN G. THIBODEAU, to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board of Opticianry is estopped for asserting the new statute as a denial of her right to sit for the next exam since she has detrimentally relied on their representation that her qualifications under the old statute, s. 484.03, Florida Statutes (1977), qualified her to sit immediately for said examination." The following are additional Findings of Fact based upon testimony adduced at the hearing: When Petitioner made her telephone call to the Board of Opticians in May, 1980, she asked to speak to one of the Board members, but was assured by a woman who answered the phone that she could answer any questions Petitioner might have concerning her qualifications. At this time, Petitioner informed the person taking the call that she planned to move to Florida if she was qualified to take the examination for a dispensing optician license. Petitioner thereafter moved to Florida and is now employed by Sheppard Optical at Delray Beach, Florida where she is earning $200.00 a week. She was making approximately $300.00 a week when she left Connecticut and anticipated a higher income when she commenced practicing under her opticians license in Connecticut. (Testimony of Petitioner) Prior to the consolidation of the various state licensing boards into the Department of Professional Regulation in 1979, the practice of the Board of Opticianry, under the apprentice requirements of Section 484.03, Florida Statutes, (1977) was to permit individuals who had apprenticed in another state, but not in Florida, for the specified time of not less than three years, to register with the Board, and then make application for and take the examination for licensure. This was frequently done by means of telephone calls authorizing the individual to make application. In some cases, letters were sent which contained a similar authorization. Subsequent to Petitioner's telephone call to the Board in May, 1980, the new Executive Director of the Board of Opticianry, Herbert F. Varn, changed this practice to conform to the applicable statute which requires individuals to register as an apprentice with the Board and not admit such individuals to examination until after they had thereafter completed the requisite three year period of apprenticeship. In some isolated cases, the Board had permitted individuals who had previously received a letter authorizing them to take the examination, even though they had not been registered in Florida for the requisite three year period, to take the examination. However, after reorganization, the Board did not permit individuals to take the examination based solely upon any oral assurances received from persons in the prior Executive Director's office. (Testimony of Varn) The order of the Board of Opticianry, dated September 2, 1981, denying Petitioner's application stated that she had not met the statutory requirements for licensure by examination pursuant to Section 484.067(1), Florida Statutes, because she had not completed the requisite two school year course of study in a recognized school of opticianry, had not actively practiced as a licensed optician in another state for more than three years preceding the application, and had not registered as an apprentice with the Department and served not less than a three year apprenticeship under appropriate supervision. The present Executive Director of the Board is of the opinion that there would be no detriment to the public if Petitioner was allowed to sit for the examination based on her prior training and experience, but acknowledges that this is a matter for Board determination. (Testimony of Varn, pleadings)
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent's opticianry license should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Max A. Vinson is currently a licensed optician, holding license No. DO 601. On December 24, 1986, the Board of Opticianry entered a Final Order in DPR Case No. 0060708 and therein assessed a fine of $500.00 against Vinson. The fine was to have been paid within thirty days of the Final Order. Vinson never paid the fine. On October 17, 1989, the Board of Opticianry again entered a Final Order in Case No. 0106315. This Final Order was based on the failure to pay the fine from the first action. Another fine of $1,000.00 was assessed and Vinson's license was suspended until the fines were paid. Vinson never paid this fine. Vinson is charged with violating Section 484.014(1)(i), Florida Statutes, based on his failure to obey these two lawful orders of the Board of Opticianry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Opticianry enter a Final Order and therein revoke license No. DO 601 issued to Max A. Vinson. Vinson may not reapply for a license until all fines have been paid. DONE and ENTERED this 9th day of April, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991. COPIES FURNISHED: E. Renee Alsobrook, Senior Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Max A. Vinson 12512 Caron Drive Jacksonville, FL 32258 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 LouElla Cook Executive Director Board of Opticianry 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner is an applicant for licensure as an optometrist in the State of Florida. He received a Bachelor's Degree in Biology from Youngstown State University in 1985. In 1989, Dr. Martuccio graduated from the Ohio State University College of Optometry where he had followed a four-year course of study prior to receiving his optometry degree. Dr. Martuccio has been practicing optometry in Ohio since 1989. When Dr. Martuccio took the 1989 optometry examination for licensure in Florida, he received a passing grade on the written portion of the examination but not on the clinical portion. That passing grade on the written examination remained valid when he took the 1990 optometry exam. Therefore, in 1990 Dr. Martuccio only had to repeat the clinical part of the examination. Dr. Martuccio received lower than a passing grade on that clinical examination. For the clinical examination, an applicant is required to bring his or her own "patient." The clinical examination is conducted by having a candidate perform procedures requested by the examiners on the "patient." The clinical portion of the optometry examination is divided into two sections. On Section 1 an applicant can receive a possible score of 48 points. Dr. Martuccio received a perfect score of 48 points on that Section. The total passing grade for Section 1 and Section 2 is 80 points. Therefore, Dr. Martuccio needed to receive a total of 32 points out of a possible 52 points on Section 2. However, the grades given to Dr. Martuccio on Section 2 totaled only 27.5. His total score for the clinical portion of the 1990 optometry exam was, therefore, 75.5. Section 2 of the clinical examination is divided into 16 different procedures. Each of the 16 procedures has a maximum score that varies depending on the weight given to the procedure. The grading is done by two examiners who are practicing optometrists. If both examiners agree, the candidate either receives no credit or full credit depending on whether they considered him to have properly performed the procedure requested. If they disagree, the candidate is given one-half of the possible points on that procedure. Dr. Martuccio has challenged the scores he received on four of the procedures in Section 2 of the September, 1990, clinical exam. Those four procedures, in the order in which they were performed, are: BIO 2 (Binocular Indirect Opthalmoscope), Anterior Biomicro 4 (Anterior Biomicroscopy), Anterior Biomicro 9 (Anterior Biomicroscopy), and Gonio 15 (Gonioscopy). In Binocular Indirect Opthalmoscope 2 Dr. Martuccio was required to show a clear view of the fundus (back of the eye). The back of the eye is visible through the dilated eye by means of a binocular headpiece worn by the candidate and a hand-held lens, which are focused together. This procedure is very simple to perform. It is a procedure which he has been doing since "day one in optometry school," and which Petitioner performs daily in his private practice. One of the graders who evaluated Dr. Martuccio's performance on BIO 2 indicated that he performed the procedure properly, but the other grader indicated that his demonstration was "out of focus". Dr. Martuccio's sight is perfect in both eyes, and he is capable of detecting whether an image is out of focus. Since the "patient" did not move during the examination process, then one of the graders made a mistake in his evaluation. Dr. Martuccio correctly performed BIO 2, and he should receive 2.5 additional points for that procedure. The next procedure in dispute is Anterior Biomicroscopy 4, which was worth a total of four points. The two graders disagreed as to whether Dr. Martuccio properly performed the procedure, and he, therefore, received only two points. This procedure required him to display the corneal endothelium. To do that, Dr. Martuccio used a slit lamp which is an instrument that projects a beam of light into the patient's eye. One grader gave Dr. Martuccio full credit for this procedure. The other gave no credit, commenting that Dr. Martuccio used an optic section rather than a parallelpiped. There is an elementary and fundamental difference between a parallelpiped and an optic section of light projected from a slit lamp. The slit lamp has a separate adjustment that determines the width of this beam of light. Since Dr. Martuccio did not change the width of the beam of light after he began the procedure, that width did not change between the time the first examiner and the second examiner evaluated his work. One of the examiners was mistaken in grading Dr. Martuccio's performance, and Dr. Martuccio was scored incorrectly on this procedure. For Anterior Biomicroscopy 9, Dr. Martuccio was instructed to focus on the anterior vitreous, part of the gel-like substance in the middle of the eye. In some patients vitreous strands are present and may be visible during the examination. However, in healthy patients vitreous strands are not present and the anterior vitreous is extremely clear. In those situations, the beam of light from the slit lamp will have nothing from which to reflect. Dr. Martuccio utilized the standard method of examining the anterior vitreous by focusing the instrument on the back of the lens, which is immediately adjacent to the beginning of the anterior vitreous. The focus is then projected inward, into the eye, which will automatically set the focus within the anterior vitreous. Dr. Martuccio's patient had no vitreous strands, protein particles, or other objects in his anterior vitreous. Thus, there was an absence of particles which would reflect light back to the observer from the subject. The examiner who gave Dr. Martuccio no points for this procedure noted, as his explanation, that vitreous strands were not visible. However, as explained by Dr. Martuccio and corroborated by the Department's expert witness, that was an inappropriate comment if the patient had no vitreous strands. Since the examiner's comments were inappropriate, indicating he used an erroneous criterion, Dr. Martuccio was given an incorrect score on this procedure. Instead of two points, he should have received the full four points. The last procedure in issue is Gonio 15. This was worth a total of four points for which Dr. Martuccio received only two. This process requires a gonioscope to be placed on the patient's eye, in much the same fashion as a contact lens is placed on the eye. Once the gonioscope is placed, a mirror inside this instrument allows the optometrist to examine structures of the eye at a sideways angle and see portions of the eye which are not visible by looking straight into the eye. Dr. Martuccio installed the gonioscope properly and adjusted it so that the structures in question were clearly visible. He received full credit from one of the examiners but no credit from the other examiner whose comment was that the structures were "out of focus". It is unreasonable to believe that Dr. Martuccio did not keep the structures of the eye in question in focus during this examination. He was able to perform all of the procedures easily, without any delays, and had no problem doing all the procedures in the allotted time, which was relatively brief. Dr. Martuccio's "patient" was an ideal subject who did not move in any fashion so as to cause the focus to change for any of these procedures. Further, Dr. Martuccio is knowledgeable about structures of the eye and the use of all of the instruments involved in this case. He has had extensive training and experience in these areas not only through his formal education in optometry, but also due to the fact that Dr. Martuccio has been in private practice for over two years, using these instruments on a daily basis. Considering that Dr. Martuccio has perfect vision in both eyes, it is difficult to conceive that he could not keep his instruments in focus for the few seconds it took for both examiners to review his work. The Department's expert witness, Dr. Chrycy, characterized the procedures that are called for in Section 2 of the clinical examination as being fundamental and relatively simple. Candidates who cannot perform these functions are clearly unqualified to be an optometrist. Dr. Chrycy expects all graduates of optometric school to be able to keep images in focus. Dr. Martuccio has been licensed in the State of Ohio for over two years and has recently been licensed in the state of Pennsylvania. He passed the National Board examination which is recognized in at least 10 states for licensure. Both the National Board and the Ohio licensure examinations have clinical components similar to Florida's. Dr. Martuccio passed both of those clinical examinations on his first attempt. When considered in light of Dr. Chrycy's characterization that the examination tests fundamental, basic ability and is not difficult, one cannot accept the proposition that Dr. Martuccio was fairly graded in this examination process. The general passing rates that candidates taking the Florida optometry exam have experienced since 1986 are quite low. In 1987, only 51% of those taking the clinical portion of the examination passed; in 1988, 59%; in 1989, 57%, and in 1990, 53%. The overall pass rate for the entire exam is even lower: in 1987, only 30%; in 1988, only 42%; in 1989, only 45%, and in 1990, only 34%. If taken literally, these scores mean that the typical applicant for licensure as an optometrist in Florida is incompetent at using the basic, everyday instruments employed by optometrists and by optometric technicians and is incapable of identifying the different parts of the eye. Such a conclusion is without credibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered awarding to Petitioner 8.5 additional points on the clinical portion and finding that Petitioner achieved a passing score on the September, 1990, optometry examination. RECOMMENDED this 13th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2354 Respondent's proposed findings of fact numbered 1-3 have been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 5 and 7 have been rejected as being irrelevant to the issues under determination herein. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Diane Orcutt, Executive Director Department of Professional Regulation/Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
