The Issue The issue for consideration in this matter is whether Respondent's license as a clinical laboratory supervisor should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, Board of Clinical Laboratory Personnel, was the state agency in Florida responsible for the licensing of clinical laboratory personnel and the regulation of the clinical laboratory profession in this state. Respondent was licensed by Petitioner as a clinical laboratory supervisor holding license number JC 10663. Respondent came to Florida in 1973. He held a bachelor’s degree at that time and immediately took the test for licensure as a laboratory technician, which he passed. A year later, he also took the test for licensure as a laboratory supervisor and passed that test as well. His licenses require that he take 24 continuing education course hours in his specialty every two years. During the course of a routine departmental audit of the continuing education requirements for the biennium of July 1, 1996 to June 30, 1998, Respondent was asked for evidence of his completion of the required continuing education courses. He went through his personal continuing education file and extracted the records on file for the required period. In doing so, Respondent claims he found evidence of a course in chemistry he had completed and sent in to the provider, Anderson Continuing Education, for grading and completion certification, but he received no certificate of his completion of this course. Respondent is adamant that he mailed the completed course materials to Anderson on June 14, 1998. He claims he also sent the Board copies of what he sent in, along with other information he had. Records at the Board reflect Respondent submitted certificates reflecting completion of 25 continuing education hours. However, 12 of those hours, those for chemistry, were not shown to have been completed during the biennium. Mr. Moore was advised of this by the Board. The records available reflect that on July 30, 1996, Respondent was granted a completion certificate for three continuing education hours for advanced troubleshooting (Course CC-0019741); on May 14, 1998, a certificate for completing one hour for Course CC-0021660 and two hours in Advances on the AIDS Horizon: 1998; and on June 2, 1998, a certificate for seven hours in Clinical Application of Laboratory Data. The certificate of completion for the 12-hour course in Clinical Chemistry; Theory, Analysis, Correlation, Section 1, reflected the completion date of January 13, 1999. Respondent contends he completed the course materials and sent them in to Anderson for grading within the required biennium, and the answer sheet submitted by Respondent at the hearing reflects on the top of the first page thereof Respondent’s hand-written notation that it was sent to Anderson on June 12, 1998. This contradicts the notation by Anderson that the required material was not submitted for certification until January 13, 1999, well after the completion of the pertinent biennium. Respondent contends he is aware of what is required and when the deadlines are. He is also aware of how long it generally takes Anderson to grade the submitted materials. Though he contends he submitted the 12-hour chemistry course materials in June 1998, he claims he didn’t realize Anderson had not received it or graded it. It was not until the audit, he contends, when he found he had not received a completion certificate, that he sent the answer sheet in again. Respondent asked Anderson if the Board would backdate the certificate for the 12-hour chemistry course to reflect it was completed during the biennium. Respondent claims it was not his idea to do so, but he did it at the request of the Board auditors who asked him to get a statement from Anderson that they could not backdate certificates. When Respondent was notified of the audit, he wrote to the Board and indicated the out-of-biennium date on the chemistry certificate was inaccurate. Based on that claim, a representative of the Board made a courtesy call to Anderson to advise the Board of the problem. Anderson did not admit that a mistake had been made. If Anderson had admitted a mistake, Respondent would have received credit for the course. Respondent contends he was selected for this audit of his continuing education as retaliation because he requested to take the test for licensure in microbiology. He indicates he requested the test on December 18, 1998, and called the Department frequently thereafter when he did not hear anything. It was shortly thereafter that he was notified that he was being audited. According to Sharon L. Knight, a program administrator in continuing education and education audit for two of the Department’s regulatory Boards, of which one is the Petitioner herein, usually 10 percent of the licensed practitioners in a profession are subjected to an audit of their continuing education each cycle. Audits are usually conducted within four to six months after the end of a biennium. The list of those selected is computer-generated. Respondent was identified by the computer for audit. Based on the evidence presented, it is found there is no evidence the audit of Respondent’s continuing education record was in any way retaliation for his request to take the microbiology examination, or based on any other improper foundation. Respondent is adamant that he completed the required chemistry course material and submitted it to Anderson for certification within the biennium. However, he admits he did not check with Anderson when he did not receive a timely certificate of completion, but he attributes this to the fact that at that time his mother moved in with him. Absent any indication of irregularity in Anderson’s grading process, it is found that the chemistry course, accounting for 12 hours of continuing education, was not completed by Respondent and submitted for grading within the biennium in issue. Any gratuitous comments which may have been made to Respondent by the Department’s investigator regarding the seriousness of the allegations are irrelevant and not considered herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent pay an administrative fine of $250.00 and that he be reprimanded. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 6th day of April, 2000. COPIES FURNISHED: Lawrence F. Kranert, Jr., Esquire Agency for Health Care Administration Post Office Box 14229 Mail Station 3 Tallahassee, Florida 32317 Steven Moore 1735 Michigan Avenue Northeast St. Petersburg, Florida 33703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Pete Petersen, General Counsel Department of Health 2020 Capital Circle Southeast Tallahassee, Florida 32399-1701 Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. He applied to the Respondent for licensure as a Clinical Laboratory Technologist, specializing in clinical chemistry. On April 1, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours required by Section 10D- 41.25(9), Florida Administrative Code. Petitioner is a high school graduate. There after he graduated from Charron-Williams Paramedical College, technician training school. He has not attended an accredited college or university. Petitioner has been employed as a technician for approximately five years, and his witnesses testified as to the quality of his work. Petitioner has not taken the U.S. Public Health Service proficiency examination in clinical laboratory technology.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 16th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Mr. Devon L. Carter 16615 S.W. 103rd Court Miami, Florida 33157 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact By application dated July 20, 1995, Petitioner applied to Respondent for a Clinical Laboratory Supervisor's license. Petitioner has not earned a doctoral degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a masters degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a baccalaureate degree in medical technology, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does have a baccalaureate degree in business administration and has taken college level courses in biology, human anatomy and chemistry. Petitioner has demonstrated that she has five years of pertinent experience following receipt of the degree. Accompanying her application for licensure, Petitioner presented documentation that she completed an advanced clinical practicum as a Specialist in Blood Bank Technology in 1995 and has been certified by the national Board of Registry in Chicago, Illinois. Petitioner did submit an evaluation of her college transcript by a qualified staff member of the Board of Registry, Chicago, Illinois. Petitioner did not submit an evaluation of her college transcript by a Chairperson of a chemical or biological science department of a regionally accredited U. S. college or university. Petitioner did not file a motion for an extension of time in which to submit an evaluation of her college transcript prior to the expiration of the thirty day extension period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a Clinical Laboratory Supervisor. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 27th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-2187 Petitioner's proposed findings of fact. Petitioner did not submit proposed findings. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,4,5,6,7,8,9,10. Rejected as subsumed or irrelevant and immaterial: Paragraphs 2 (see Preliminary Statement) and 3 (see preliminary statement). COPIES FURNISHED: Lealand L. McCharen Assistant Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Diane Orcutt, Executive Director Board of Clinical Laboratory Personnel Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Mary Donna Lee, pro se 2544 Robert Trent Jones Drive Apartment Number 816 Orlando, Florida 32835
Findings Of Fact The Petitioner, Ms. Ann E. MacPherson, is on continuing contract with the Monroe County School District, and has been a teacher for that District for 19 years. She started first as a physical education teacher in elementary school for one year, and next taught physical education for six or seven years in middle school. Subsequently she started having health problems, and on doctor's advice, switched to teaching something other than physical education. She switched to science. She had had no formal education to teach science, except for courses in her physical education degree. However, she is now certified in Science and Physical Education. For the past two years, the Petitioner has taught General Science and Health at Key West High School. In October 1981, Ms. MacPherson injured her foot on sharp glass. She was then a diabetic, and the injury failed to heal properly. Over the next several years, she had surgery nine times in one foot and seven times in the other foot. Her injuries caused her to require lengthy hospitalization and recuperation periods away from the class room. In the school year 1981-82, she was absent 60.5 days, in the year 1982-83, she was absent 74 days and in the year 1983-84 the Petitioner was absent 48 days. The school year is 180 days. During some of her periods of recovery, Ms. MacPherson was able to work in the classroom, but was not able to walk around the classroom due to her foot injuries. On the days that the Petitioner was absent from her classroom, she continued to supervise the work of the teacher substitute from her home. She continued to prepare the lesson plans, correct notebooks, make up the tests, grade tests, and help the substitute teacher through continuing contact. She asked for a substitute teacher by name to help with continuity of instruction. Ms. MacPherson taught Intermediate Science Curriculum Study (ISCS) initially in the middle school for six or seven years, and then at Key West High School since at least 1980, except for one year when she taught Health. The ISCS program placed special emphasis upon individualized learning. Students were expected to select science areas for investigation or experiment from a list prepared by the teacher, and then to progress at their own rate to conduct the investigation or experiment. Continuity of instruction by the same teacher was especially important for the ISCS course. Other teachers who taught the ISCS program were required to take a summer training course, but the Petitioner was not. The Petitioner received some informal training from Ms. Betty Cox, the school district curriculum coordinator. During the time that the Petitioner taught science at the middle school (Horace O'Bryant), she organized and used field trips as an instructional technique. She was unique among other teachers in this respect in the emphasis that she placed upon field trips, and the fact that she used her own car for transportation and paid expenses from her own pocket. Also while she was at Horace O'Bryant Middle School, the Petitioner applied for and obtained several small grants from the Department of Education for teaching environmental education. An administrator of these grants testified that only about one-half of those who apply are successful, and that the Petitioner's projects were very good. By the 1979-1980 school year, the Petitioner had transferred to Key West High School. Almost all of her students, if not all, were not headed for college. Typically these students were probably going to take jobs fishing, as clerks, or waitresses, after leaving high school, and were of average or less than average academic ability. Homer B. Herrick, Jr., was Chairman of the Department of Science at Key West High School for the school years 1979-80 to 1983-84, and in that capacity, was supervisor of the Petitioner. During the first two years, Mr. Herrick observed no significant problems with Petitioner's teaching. Mr. Herrick observed Petitioner in the classroom during these two years. He had routine lesson plan problems with the Petitioner, of a type that all teachers had, and found that the Petitioner was willing to implement his suggestions, and did so. In the school year 1979-80, the Petitioner received a performance evaluation, Petitioner's Exhibit 6. The evaluation was very good. Ms. MacPherson was praised for her extraordinary efforts to enhance her science program by use of field trips and slide/sound track presentations. The annual evaluation stated that she was a "dedicated instructor, who goes all out for her students." She was commended for "many extra hours" she spent to enhance her program, and the evaluation concluded that she "works well with other members of her department." Ms. MacPherson was criticized in two areas: coordination of field trips, and greater use of the guidance staff to control classroom discipline. These, however, were minor observations, as the evaluation concluded that "overall discipline is very good." The evaluation was signed by the Principal of Key West High School, Clarence Phillips, and was prepared by the Assistant Principal, Thomas Roberts. Mr. Roberts could not remember if his evaluation was based upon his own observations, or the combined observations of himself, Department of Science Chairman Herrick, and a Mr. Gallagher. During the school year 1980-81 Principal Phillips assigned Assistant Principal Roberts, Department of Science Chairman Herrick, and District Curriculum Coordinator Betty Towns Cox to conduct a series of classroom observations of the Petitioner to evaluate her teacher skills. The date is established by Petitioner's Exhibit 3, a letter from Alvin Burney, President, United Teachers of Monroe, to the Petitioner dated February 24, 1981. The date of February 1981 as the date of the first intensive observations was corroborated, apparently, by Ms. Cox's log of visits, which indicated she spent 14 hours in that month in the classroom observing the Petitioner with Mr. Roberts and Mr. Herrick. Transcript, p. 75. (The log is not in evidence.) Ms. Cox, however, placed primary emphasis in her testimony upon observations she made in the 1982-83 and 1983-84 school years. The Petitioner placed the observation period in the 1981-82 school year, Mr. Roberts could not remember if it was in the 1980-81 or 1981-82 school year, and Mr. Herrick placed the date of the observations in the 1981-82 school year. The written evidence of the date is better evidence than the conflicting memories of the witnesses. Department Chairman Herrick was one of those requested to conduct these observations. The observations were almost daily, and went on for about two weeks. To Mr. Herrick, discipline in the classroom was the primary problem. The observers were looking for a teaching deficiency as a potential cause of the discipline problem, but Mr. Herrick did not recall any problem with Ms. MacPherson's delivery of instruction. Mr. Herrick testified that after these observations, extensive plans were formulated for improvement, and these plans were discussed with the Petitioner. In the following months, there seemed to be less problem with discipline, and it was his opinion that the Petitioner had incorporated and implemented their suggestions. Assistant Principal Thomas Roberts also observed Ms. MacPherson during this period of intensive observations in the 1980-81 school year. Tee agreed with Mr. Herrick that the primary problem causing the observations was discipline in Petitioner's classroom. Mr. Roberts observed the Petitioner 5 to 8 times over a period of about a month. Each of the observations were for a continuous 2 to 3 hour time each day. He became "extremely concerned" about the lack of discipline maintained by the Petitioner in some of her classes. In the area of teaching, Assistant Principal Roberts was "pleased that she was making a strong effort in terms of not only the field trips and the slide series, but, you know, she was interested in any information that was given her by Mr. Herrick or Mrs. Cox in terms of her planning process, the things teachers need to do. And more importantly, her interaction with children, you know, she was concerned about that." Transcript, p. 135. Assistant Principal Roberts, however, felt that he was not competent to give an opinion as to Petitioner's competence in instruction, that Mr. Herrick and Ms. Cox were assigned at that time to evaluate that area, and that he himself focused primarily on the discipline issue. He concluded that the Petitioner at that time (1980-81) needed more training in classroom discipline skills. One of the causes of disciplinary problems that year was one student who caused many problems in one of the Petitioner's classes. The Petitioner had had the older brother of this student, and both were significant disciplinary problems. Mr. Roberts agreed that the Petitioner had more serious problems in one class in particular. Transcript, pp. 133-34. The Petitioner testified that the administration failed to help her discipline this one student. Transcript, pp. 164-65. However, it is clear from the testimony of Mr. Herrick and Mr. Roberts above that the Petitioner in general had problems disciplining her classes, and the problem was not confined to one student. In late 1980 and early 1981, Alvin Burney was President of the United Teachers of Monroe, and in that capacity he was contacted by Ms. MacPherson with regard to the evaluation process that had been instituted by Principal Phillips. Mr. Burney met with Principal Phillips, and Petitioner's Exhibit 3, a letter from Mr. Burney to Ms. MacPherson, summarizes what Mr. Burney says he heard from Mr. Phillips at that meeting. In the letter to Ms. MacPherson, Mr. Burney listed items which he said he would submit to Principal Phillips as suggestions for resolving these problems. The suggestions in the letter were apparently not implemented by Principal Phillips, except that the suggestion that fewer observations be conducted was implemented. At about the same time, Mr. Burney talked with the Superintendent, and the Superintendent told him that he had a list of teachers that were not, in his opinion, performing to his standards, and that he wanted to look at ways these teachers could be improved or be terminated. The Petitioner was one of these teachers. The Respondent objected to this testimony as hearsay, and lack of foundation: time, who said it, and so forth. The record contains an adequate foundation. Transcript, p. 114. The testimony is the testimony of an agent of the Respondent, and admissible as an exception to the hearsay rule. Section 90.803(18)(d), Fla. Stat. (1984). When the Petitioner testified, she misplaced the period of intensive observations as having occurred in the 1981-82 school year. As discussed above, other more credible evidence establishes the period as February 1981 in the 1980-81 school year. The Petitioner did not mention the problem of discipline in the classroom as a cause for the observations, but emphasized instead what she characterized as a misunderstanding at the beginning of the year as to what was expected of her in teaching the ISCS program that year. She said that at the beginning of the year, there was not enough money to buy equipment for physics, chemistry, and her ISCS course, and that with the knowledge and approval of Mr. Herrick and Ms. Cox, the Petitioner planned to present only one ISCS unit at the beginning of the year, to present more general science instruction, and then to present two ISCS units at the end of the year. But midway through the year, Mr. Phillips called her in and criticized her for not teaching the ISCS units, and started the observations by Herrick, Roberts, and Cox. The Petitioner said that apparently Mr. Phillips had not been told of the plans approved earlier by Cox and Herrick. Ms. MacPherson's position at the hearing was the same as that which she expressed in June 1981 as a response to her 1980-81 evaluation, and is credible. See paragraph A.1., attachment to Petitioner's Exhibit 5. At the end of the school year 1980-81 (May 20, 1981) Petitioner received her annual teacher evaluation, Petitioner's Exhibit 5. The evaluation was signed by Principal Phillips. The evaluation rated the Petitioner acceptable in only 3 categories. In the following categories the Petitioner was rated needs improvement:" preparation and planning, techniques of instruction, teacher-student and parents, and personal qualities. The Petitioner was evaluated as "unacceptable" in classroom management. However, Principal Phillips did not personally observe the Petitioner in the classroom that year, transcript, p. 217, and there is no other testimony in the record to support the conclusions of this annual evaluation, except classroom management, which was improved. Indeed, the testimony of Mr. Herrick and Mr. Roberts lead the Hearing Officer to conclude that Ms. MacPherson responded to the assistance and evaluations that occurred on an intensive basis, and made suitable and adequate improvements. Based upon all of the foregoing, it is the finding of the Hearing Officer that the Petitioner ultimately performed her job adequately for the 1980-81 school year, but that she had had significant disciplinary problems during the school year, which she was able to improve by the end of the year. At the beginning of the next school year (1981-82) following the year in which intensive observations had been conducted, the Petitioner made a special effort to request the assistance of Department Chairman Herrick to develop her lesson plans. The Petitioner wanted to avoid the problems she had had the previous year. In October of 1981, as discussed above, Ms. MacPherson injured her foot, and her serious medical problems began. She was absent 60.5 days during the 1981-82 school year. During the times she was able to attend class that year, her infected feet were open and draining, and standing aggravated her condition. At some time during that school year, Principal Phillips suggested that Ms. MacPherson take a medical retirement. Ms. MacPherson again contacted Mr. Burney, and Mr. Burney, on her behalf, wrote a letter dated February 22, 1982, to Mr. Phillips. It was Mr. Burney's position at that time that in his conversations with Mr. Phillips the year before, Mr. Phillips had agreed to "make arrangements during pre-planning of this school term to outline detailed expectations" for the Petitioner, and this was not done. The letter further stated, on behalf of the Petitioner, that it was the Petitioner's contention that since no more observations had been scheduled, the deficiencies complained of in the previous year had been corrected. At the end of the 1981-82 school year, the Petitioner again received her annual evaluation signed by Mr. Phillips. Mr. Phillips did not personally observe the Petitioner, and the record does not contain any other competent evidence, either pro or con, concerning Ms. MacPherson's performance that year. Neither Mr. Herrick or Mr. Phillips testified specifically about her performance that year, and Ms. Cox's testimony cannot be adequately dated as pertaining to that year. The 1981-82 annual evaluation rated the Petitioner "acceptable" in the following area in which she had been rated "needs improvement" the year before: preparation and planning, professional responsibility, and relationship with staff and parents. Her grating in classroom management, which had been unacceptable in 1980-81, was rated acceptable. Ms. MacPherson was rated "needs improvement" in techniques of instruction and teacher-student relationship, which was the same rating in these categories as the prior year, and was rated unacceptable in personal qualities. Mr. Phillips commented in the evaluation that "although she says she wants to teach, I feel that her physical health is of an extremely serious nature and the suggestion of medical retirement should be reinvestigated." Respondent's Exhibit 1. The Petitioner attached a general rebuttal to the evaluation, simply disagreeing with critical ratings therein. It is the finding of the Hearing Officer from the foregoing that the Petitioner performed her duties adequately during the 1981-82 school year, except that her injuries caused her to miss a substantial number of classroom days, and her performance was impaired by her injuries. During the 1982-83 school year, as discussed above, Ms. MacPherson continued to have serious health problems with her feet. She was absent from school 74 days. In November 1982, she wrote to her Principal to try to schedule surgery and arrange for a permanent substitute so that the substitute, who she suggested by name in her letter, would provide some continuity of instruction for the students in the ISCS program. In preparation for this lengthy absence, Ms. MacPherson set up all the teaching units and day by day lesson plans for her substitute to follow, and prepared instructions for finding the equipment, how to use it, and how to monitor student use. She went over these plans with the substitutes assigned to her. But her hospitalization continued for longer than planned, and during this period she continued to make lesson plans at the hospital, to correct all the tests, correct notebooks, average grades, have frequent discussions of teaching with the substitute, and do the work she could do in the hospital or at hone. All of this work she did without pay because she was then on leave with pay, having exhausted her sick leave. During both the 1982-83 and 1983-84 school years, Ms. Cox, the school district curriculum coordinator, at the request of Principal Phillips, worked with the Petitioner on her lesson plans on a number of occasions. Ms. Cox also observed the Petitioner's performance in the classroom. Ms. Cox estimated that her observation periods lasted from as short as ten minutes to as long as a full hour, and that during the 1982-83 school year, she visited Petitioner's classroom about six times per month. Petitioner's counsel attempted to impeach Ms. Cox's testimony by cross-examination from logs prepared by Ms. Cox which recorded classroom visits she had made. The resulting record does not impeach the evidence provided by Ms. Cox. Much of the transcript simply consists of counsel's characterization of the logs, not testimony of a witness, and the logs were not offered into evidence. Further, it appears that the logs covered the period from 1980 to June 25, 1982, which is a period largely irrelevant to Ms. Cox's period of observations. Transcript, pp. 77, 76-77. Ms. MacPherson testified that the only times she remembered being observed by Ms. Cox was in 1976 and "when Mr. Phillips asked her to on that extensive evaluation." Transcript, p. 161. Ms. MacPherson placed the period of intensive observations, at the request of Principal Phillips, as the school year 1981-82. Transcript, pp. 173-75. At other times, the Petitioner testified that Ms. Cox did not stay in the classroom to observe her, but only beckoned her to come to the door, or visited in some other way so as to not disrupt the class. With respect to lesson plans, Ms. Cox's testimony did not disparage the Petitioner. Ms. Cox testified that she worked on lesson plans with the Petitioner, and that the end result contained some of her suggestions and some of the Petitioner's. Transcript, p. 42. The Hearing Officer concludes from this testimony that the Petitioner functioned adequately in collaboration with Ms. Cox on lesson plans, and had a good attitude in the process. Ms. Cox criticized the Petitioner in the classroom for failing to be "up and moving around, acting as a facilitator . . ." and testified that as a result, she observed a number of students not doing science. Transcript, p. 43. From this Ms. Cox stated her opinion that since the State now requires 72 hours of laboratory cork in science class, that "it would be very, very difficulty for a teacher as inactive as Ms. MacPherson to do seventy-two hours of lab work." Transcript, p. 45-46. In the same vein, she testified that the Petitioner would need a "tremendous" amount of training to be effective in the new science program. Transcript, p. 57. On cross-examination, Ms. Cox was asked specifically to state the factual predicated for her opinion. In addition to the question of moving about the room, Ms. Cox mentioned "facilitating" and "delivery of instructions." Transcript, p. 59. Ms. Cox defined "facilitating" to mean moving around the classroom, observing and instructing, so that concept was simply a short-hand way of combining the concept of motion, observation band delivery. Transcript, p. 59. Ms. Cox's criticism concerning delivery of instruction was that she said that the Petitioner delivered instructions only once, and that repetition was needed. Transcript, pp. 59-60. But when asked whether she had had enough day to day observation of the Petitioner to say "for a fact that her delivery was one shot," Ms. Cox admitted "no, I did not observe that frequently, but we talked about it." Transcript, p. 60. When asked to say whether she talked about it frequently, Ms. Cox testified: "I don't know if I said several occasions, or that we talked about it." Id. Thus, Ms. Cox did not have a sufficient basis upon which to concluded that Ms. MacPherson had any problems with delivery of instructions. With regard to the problem observed of students not on task, and Ms. MacPherson's failure to move around the room, Ms. Cox's opinion was not reliable for two reasons. First, she denied that average and less than average students would be expected to be less on task in an individually motivated science program than above average students. Transcript, p. 66. This is contrary to common sense and indicates that Ms. Cox did not have an adequate appreciation of the problems of teaching a science curriculum that depended substantially upon self-discipline and self-motivation. Further, Ms. Cox was aware that Petitioner's physical mobility in the classroom was significantly impaired due to her foot injuries, transcript, pp. 51-52, but she failed to evaluate how much of the "immobility" and "inactivity" of Ms. MacPherson was due to her feet, and how much may have been due to lack of teaching skills or motivation. Ms. Cox's opinion that Petitioner would have difficulty teaching the new science course because it requires 72 hours of laboratory work also appears not reliable. The ISCS program is no longer in existence at Key West High School, and the Petitioner would be required to teach a more traditional science course having 72 hours of laboratory work. Ms. Cox made no distinction between the ISCS individual laboratory curriculum and the new 72 hour requirement, but that is facially not reasonable. Since the new science program is no longer individualized study, then the 72 hours of laboratory work would also not be individualized. Thus, it would be much easier to teach this laboratory work because all students would probably be involved in the same laboratory experiment during the class period, and would not be able to choose individual experiments. Finally, Ms. Cox significantly limited the usefulness of her opinions by stating that she saw her role as one of assisting the Petitioner only, and not a responsibility for rigorous professional evaluation. She explicitly admitted: "I did not evaluate Ms. MacPherson. . . ." Transcript, pp. 47-48 (E.S.). For these reasons, Ms. Cox's opinions that the Petitioner was an "inactive" teacher, that she had problems with delivery of instruction, that she did not move among the students enough, and that she could not successfully teach the new science curriculum, are rejected as not being based upon sufficiently reliable evidence. On of the reasons given to Ms. Cox for taking steps to help the Petitioner was that parents had complained about the instruction of science by the Petitioner. However, since the complaints mentioned in the record were not complaints made personally to Ms. Cox, such purported complaints are hearsay within hearsay. Transcript, p. 50. As such, no finding can be made that such complaints in fact were actually made. The finding contained in the first sentence of this paragraph, however, can be made. Ms. Cox testified that by being absent sixty days or more in a one hundred eighty day school year, the Petitioner could not have provided her students with a minimum educational experience. Transcript, p. 45. Ms. Cox's opinion explicitly assumed that "the students had to miss a lot of instruction, because a substitute teacher could not just walk in and teach that program." Id. (E.S.). But Ms. Cox's opinion was not based upon an actual evaluation performed by Ms. Cox, but rather was based upon her generalized opinion drawn solely from the absences of Ms. MacPherson. Transcript, p. 56. Ms. Cox admitted that she did not test Ms. MacPherson's students to discover the actual educational level achieved, and that she had no objective criteria for her opinion. Id. Further, there is no evidence that Ms. Cox observed the degree to which Ms. MacPherson had supervised her substitutes, and the quality of instruction provided by the substitutes. For these reasons, Ms. Cox's opinion that Ms. MacPherson failed in fact to provide a minimal educational experience for her students is not sufficiently reliable as a basis for that finding. The fact that Ms. MacPherson candidly admitted that her students would have been better served had she not been absent so much, transcript, pp. 21, 25, does not support the conclusion that she failed to provide a minimal educational experience. At the end of the 1982-83 School year, the Petitioner received her annual evaluation, Respondent's Exhibit 2. She was evaluated as needing improvement in 2 of 8 relevant categories concerning classroom management, was evaluated as needing improvement in 2 of 5 relevant categories in delivery of instruction, needing improvement in the 1 relevant category of assessment techniques, and needing improvement in 6 of 11 relevant categories of professional characteristics. Principal Phillips emphasized the number of absences that Petitioner had had during the school year and her future health in the comments section. The evaluation was signed by Mr. Phillips, but he did not observe the Petitioner in the classroom during that year. At the end of the evaluation, Ms. MacPherson asked to be allowed the opportunity to submit a rebuttal if the criticisms in the evaluation were directed at her teaching skills unassociated with her illness and injuries. That question was not answered by the Respondent, and the Petitioner did not submit further rebuttal. In the pre-planning stages before the beginning of the 1983-84 school year, Ms. MacPherson contacted her Departmental Chairman, Mr. Herrick, and told him that she felt she was on unfirm ground, and that she wanted to be sure that she fulfilled what was expected of her. At that point, Mr. Herrick was no longer making observations of Ms. MacPherson, but he did look over her lesson plans a few times at that time, and he concluded that her lesson plans were satisfactory. Mr. Herrick sought to explain why he was no longer observing and evaluating the performance of the Petitioner at this time by stating that he had "conflicting duties" as a department chairman, wherein he was supposed to help teachers, and he felt it would have been difficult for him to make judgements in a "dismissal type situation." Transcript, p. 145(a). There was no other explanation for Mr. Herrick's departure from his expected normal role as direct supervisor of Ms. MacPherson. It must be concluded from Mr. Herrick's apparent exit from evaluative responsibilities and his excuse that he was too close to the Petitioner to participate in a "dismissal type situation" that by the fall of 1983, a decision had been made to actively pursue evaluation aimed at dismissal of the Petitioner. Nicholas A. Fischer, Director of Human Resources for the Respondent, is responsible in part for professional development and training of teachers, and other duties as assigned by the Superintendent. Dr. Fischer holds a Doctorate in Administration, Planning, and Social Policy from Harvard University. In September 1983, Dr. Fischer was requested by Principal Phillips to observe and evaluate the teaching skills of the Petitioner. Prior to conducting these evaluations, Dr. Fischer had no prior training or knowledge of the curriculum of the ISCS program, and to provide himself with some basis for conducting the evaluations, Dr. Fischer telephoned Dr. William Snyder by telephone. Dr. Snyder is a professor of science education at Florida State University and was one of those involved with writing the ISCS program. From this telephone conversation, Dr. Fischer developed the teaching standard for evaluating the Petitioner. Dr. Fischer conducted his first evaluations on October 13 and 14, 1983. The time spent in observation of the Petitioner was three class periods. Transcript, p. 95. Dr. Fischer was accompanied on at least one of these observation periods by Principal Phillips. At the end of the observations, Dr. Fischer and Principal Phillips prepared the observation form, Respondent's Exhibit 6. Dr. Fischer testified that he observed the Petitioner observing student activity and behavior from the front of the room and by walking around. He criticized her for not discussing with students the tasks on which they were working. At the beginning of the period, the Petitioner told the students to continue on the individual work they had been doing the prior day. Once they completed those tasks, the students were told to begin new work to be chosen by them from a list on the board. After class began, Dr. Fischer noted that the Petitioner failed to discuss the progress of work with individual students, and did not ask students to explain what they were doing, what they intended to do next, and whether they were having problems. Instead, the Petitioner stood in front of the room, or walked around, looking at student work and monitoring behavior, but not orally instructing. Dr. Fischer further testified that the Petitioner did not actively check the students at the beginning for comprehension of her instructions, and did not explain to the students what was expected in their work. Expectations that Petitioner should have communicated to the students included the amount of time to spend on the task, the process to be used to obtain help, and how the students were supposed to work on particular tasks. Dr. Fischer concluded from his observations that the Petitioner did not adequately instruct students at the beginning of the class, and did not adequately instruct student activities during the class. The observation form, Respondent's Exhibit 6, contains additional areas thought by Dr. Fischer to be deficient in Petitioner's teaching. The form mentions a failure to make objectives in lesson plans more specific, activities matched to objectives, and methods of evaluation both made more specific and correlated with objectives and activities. He concluded that it was difficult to determine if lesson plans were followed due to vagueness. In one period, Dr. Fischer observed 50 percent of the students on task 60 percent or less of the time. With regard to behavior of students and professional attitude interacting with students, Dr. Fischer found that the Petitioner needed to be firmer, consistent, and interact in a way that defined what was expected, minimally involving other students. He found that the interactions with students were more confrontations than conversation, and statements were made to the entire class when only the behavior of a few was to be corrected. At the end of the two days in which observations were conducted, Dr. Fischer net with the Petitioner and discussed the contents of his evaluations contained in Petitioner's Exhibit 6. Next, Dr. Fischer developed a professional development plan, which is Respondent's Exhibit 7. The plan follows the topical categories contained in the observation form. The plan sets forth a number of goals to be accomplished by the Petitioner to remedy the matters criticized by Dr. Fischer in the observation form. Dr. Fischer discussed the plan with the Petitioner and scheduled another observation for December 1983. The professional development plan called for daily evaluation of each student's progress. The Petitioner found that daily evaluation was too time consuming and not effective, since students did not make enough progress each day to make evaluation meaningful, and also because there was not enough time each day to both instruct and evaluate each student. Transcript, 185-86. This was corroborated by Respondent's Exhibit 6, which indicates that a class period was about 60 minutes, and Petitioner had 13 students in the third period. While 13 students in a single class is a very small number compared to typical classrooms, it still allows perhaps 10 minutes at the beginning for general instruction and getting out equipment, 10 minutes at the end for equipment storage and summation, and only 180 seconds per student for the remaining 40 minutes in which to monitor behavior, instruct, observe, and evaluate. The Petitioner discussed with Ms. Cox the requirement of daily evaluation, and Ms. Cox told the Petitioner that she agreed that daily evaluation was not possible, but that the Petitioner should try to satisfy "them" (Dr. Fischer and Mr. Phillips) and do it that way for two or three weeks, and then when the period of Scrutiny was over, to go back to doing it the way she had done before. Transcript, pp. 185-86. (As testimony relating that Ms. Cox is fact said these things, the foregoing is not hearsay. To the extent that Ms. Cox's opinion is in the record to corroborate the Petitioner's own opinion that daily evaluation was impossible, it is hearsay, as such, may be relied upon as corroborative of direct evidence on the point). The professional development plan also called for the Petitioner to observe other teachers teaching laboratory science courses in "classes identified by the Principal." Respondent's Exhibit 7, p. 3. Apparently the Petitioner was given the name of one teacher in her own school who taught laboratory science (but not ISCS, since that program had been discontinued), but was not given the names of other teachers in other schools to observe as promised. Further, she was never told when she could be released from her classes to observe these teachers. Transcript, pp. 178-79. Thus, it was impossible for her, on her own, to leave her classes to follow up on these observations. (Dr. Fischer's testimony, which only asserts that "resources" of an identified nature were "suggested" does not contradict Petitioner's testimony. See transcript, p. 100). Other than the matters discussed in the last two paragraphs, the Petitioner was responsible, on her own initiative, to implement all other aspects of the professional development plan. The Petitioner did not ask Dr. Fischer for any help with implementation of the professional development plan, transcript, p. 106, but she did ask for help from Ms. Cox, transcript, p. 187. Dr. Fischer recognized that after a teacher had been evaluated and instructed on areas needing improvement, that the teacher should be afforded a period of time to implement the suggestions. Transcript, pp. 98-99. He estimated that a minimum of a month would be needed to afford a teacher a reasonable period of time to become more specific in plans for instruction, and would need two or three months for some aspects of classroom management. Transcript, p. 99. Other corrections, such as announcing a rule in class, he thought should require only a week to correct, and others, such as stopping fights immediately, should be implemented the next day. Transcript, pp. 98-99. To improve rapport with students, a teacher needed at least two months for implementation. Transcript, p. 99. Applying Dr. Fischer's expectations to the professional development plans, Respondent's Exhibit 7, the development plan consists almost entirely of goals for improvement that would require one to three months to correct. The professional development plan lists goals and objectives stated in broad terms falling within the categories discussed in paragraph 45 above: development of more specific lesson plans, general principles for improving classroom management, and for improving rapport with student. A few of the objectives of the development plan (delivery of instruction, paragraphs 4 and 5, classroom management, paragraphs 1 and 5) would probably be such that it would be reasonable to expect correction and implementation in a few days. But overall the development plan states that implementation of the various sections were to have been accomplished by either December 1, 1983 (five weeks) or January 1, 1984 (nine weeks). At some point between October 26, 1983, when the professional development plan was discussed with and signed by the Petitioner, and December 1983, the Petitioner again became ill due to her feet. The scheduled second observation thus did not occur in December, but occurred on "change-over" day in January, 1984. Change-over day is apparently the day when the second semester begins, and is a day when the skills of a teacher in explaining new material and setting new directions for a class are more extensively tested and required. While it is not a normal teaching day, it is a suitable day to observe a teacher's skills under stress. At the end of the observations that day, Dr. Fischer concluded that the Petitioner had not made significant improvement since his evaluations in October. He felt that some improvement had been made in lesson plans, but still was not satisfied that the plans were sufficiently specific. He gave no examples, however. He said he was still "not clear" on the relationship between the techniques used for evaluating student performance and the objectives for student performance on a given day. And he expressed continued concern for clarity of directions in the classroom and the amount of time students were expected to be on task. Transcript, p. 87. Dr. Fischer's evaluation in January 1984 was based solely upon the observations in the classroom made on that day, and was not based upon observations of or knowledge of the steps that the Petitioner took to improve during the interim. Transcript, p. 88. Dr. Fischer knew that the Petitioner was absent during the period from October 1983 to January 1984, but he did not know the exact number of days of such absence. Transcript, p. 100. Dr. Fischer testified that it would probably not make a difference in his January 1984 evaluation if Ms. MacPherson had been absent due to illness for the majority of the time from the date of the first observations and the beginning of the professional development plan. Transcript, p. 101. In both the October 1983 evaluations and the January 1984 evaluation Dr. Fischer concluded that the Petitioner was not an effective or a competent teacher. Dr. Fischer was of the opinion that he had had an adequate amount of time to observe the Petitioner to develop the above opinion, but that "normally" he would have hoped to have had more time. The students in the Petitioner's ISCS classes were average and below average in skills and intelligence. Ms. Cox did not think that this factor was relevant to her assessment of Petitioner's teaching skills. Dr. Fischer felt Use factor was relevant, and was of the opinion that such students could be taught effectively only by a "highly skilled teacher." Transcript, p. 105. Ms. Cox's failure to consider the skill level of the students in the ISCS science course, with its total emphasis upon learning through self- discipline and self-motivation, severely undermines her credibility as an evaluator of the Petitioner. Dr. Fischer's opinion that only a highly skilled teacher could teach average or below average students in the ISCS science program is accepted as credible. Continuity of teaching by the same teacher is important for proper instruction of students. Unless the teacher is present continuously with the same students, he or she has no adequate way to judge the progress of the student, and from that evaluation of progress, tailor future instruction. Continuity of instruct ion was especially important in the ISCS program because students were not lectured and given the same homework, followed by testing, but progressed at different rates based upon individual choice. With respect to the school years 1981-82, 1982-83, and 1983-84, based solely upon the absences of the Petitioner, it was Dr. Fischer's opinion that the Petitioner could not deliver a minimum educational experience to her students. Transcript, pp. 89-90. Like Ms. Cox, this opinion was not based upon actual testing of students who were taught by Ms. MacPherson in those years, but was based rather upon inferences drawn from the absences themselves, coupled with Dr. Fischer's own expertise. Mr. Herrick also addressed himself to the issue of the Petitioner's absences. He testified that due to the great length of the Petitioner's absences, he had to use several substitutes since there was a rule limiting the time that one substitute could be used. He testified that use of several substitutes resulted in substitutes not always familiar with the materials and student progress, and that he passed by the classroom frequently and could see that the class was "rather chaotic." Transcript, p. 148. Hut Mr. Herrick did not attribute this fact to a lack of skill by Ms. MacPherson: he stated that it would happen to any teacher who had been absent so long. Id. Due to the fact that Dr. Fischer and principal Phillips were faced with a deadline of February 1984 in which to decide whether to recommend to the school board that the Petitioner be returned to annual contract, he and others had to make a decision shortly after the January 1984 observations. Transcript, p. 104. On February 29, 1984, the Superintendent, A. J. Henriquez, wrote to the Petitioner stating that he would recommend to the school board that the Petitioner be returned to annual contract for the school year 1984-1985. Respondent's Exhibit 9. The purpose of returning the Petitioner to annual contract would be to provide her time to improve, and to terminate her if she did not improve. Transcript, p. 107. The Respondent would be legally free to terminate a teacher on annual contract without cause simply by failing to renew the annual contract at the end of one year. In the two previous years, Mr. Phillips wrote to the Petitioner warning that he might recommend that she be returned to annual contract. On April 30, 1982, Mr. Phillips wrote suggesting medical retirement and warning he would recommend return to annual contract if the Petitioner's attendance did not improve. Respondent's Exhibit 4. On March 14, 1983, Mr. Phillips stated that he planned to recommend that Ms. MacPherson be returned to annual contract. Respondent's Exhibit 8. This recommendation, however, was held in abeyance for another year. Respondent's Exhibit 5. In both 1982 and 1983, the basis for the proposed return to annual contract was solely Petitioner's attendance problems, and was not based in upon any claim that the Petitioner lacked teaching skills. In view of the foregoing history of contemplation of return of the Petitioner to annual contract, it is very likely that if the Petitioner is returned to annual contract, her contract will not be renewed at the end of the annual term. Mr. Phillips signed the Petitioner's annual evaluation for the school year 1983-84. The evaluation does not rate the Petitioner unacceptable in any area, but rates her as needing improvement in preparation and planning, classroom management, techniques of instruction, assessment techniques, professional responsibility, school contributions, and personal qualities. The Petitioner was rated acceptable in knowledge of subject matter, teacher-student relationships, and relationships with staff and parents. Evidently due to the fact that no one provided Petitioner with a copy of the evaluation or asked her to sign it, and because the Petitioner was not present at school after school ended that year, the Petitioner did not see the evaluation, and thus it was not then (apparently) discussed with her. Transcript, p. 34. During the 1984-85 school year, the Petitioner took leave of absence without pay to try to heal her feet completely. The last surgery was in October 1984, and since then her feet have been healing well, without flare-up. The Petitioner testified that her feet were now completely healed, and she would be able to walk around a classroom without endangering her feet or her health. She further testified that her doctor felt her feet were healed. Transcript, p. 189. (While this is hearsay, it is corroborative of the Petitioner's own testimony concerning the condition of her own feet, and may be relied upon for that purpose.) The Respondent did not introduce any rebuttal or contradictory evidence as to the current condition of Petitioner's health. The Petitioner will have a lower salary if the Respondent changes her contract from continuing to annual status. The parties have proposed a number of findings of fact, many of which have been considered and are a part of the findings above. The following proposed findings of the parties are considered separately: Finding number 20 proposed by the Petitioner is rejected in part. Mr. Burney's opinion as to the Petitioner's competence as a teacher is rejected for lack of a predicate to show that Mr. Burney had observed the Petitioner as a teacher and had the competence to form such an opinion. To the extent that his opinion was based upon conversations with Mr. Herrick and Mr. Roberts, findings have already been made as to their opinions, and Mr. Burney's reiteration of what they said is cumulative and adds nothing to the record. See also ruling at page 123, transcript. The Petitioner's failure to remember what the initials "ISCS" stood for, which is Respondent's proposed finding 6, is largely irrelevant. That failure might have been relevant had it been the only such event in the record. But since counsel for the school board, Ms. Cox, and Dr. Fischer appear to also disagree as to what the letters mean (compare Respondent's proposed finding 6; transcript, p. 42; and Respondent's Exhibit 7, p. 1), the only finding that could possibly be justified is that there is disagreement among the witnesses who were professionally involved with the administration, evaluation, and delivery of the ISCS curriculum. Finding number 20 proposed by Respondent concerning complaints by parents and students is rejected. No parents or students testified. Neither did Principal Phillips. This is hearsay upon hearsay. Respondent's proposed finding 39 proposes a finding that Ms. Cox rendered an opinion that Petitioner was not providing a minimal educational experience for students "based upon her observations and experience," citing the transcript, page 45. Ms. Cox did not respond based upon her "observations." The question asked was "in light of your experience and background and education." Thus, the opinion, as discussed above, was a generalized opinion based solely upon a stated general number of absences. Ms. Cox was not asked to render an opinion based upon her observations of Ms. MacPherson, and the proposed finding is rejected to that extent. With respect to Respondent's proposed finding 46, Petitioner did testify that most students who missed from sixty to seventy-four days out of a school year of 180 days would not receive a minimum educational experience. The Respondent did not show, however, whether the absence of Ms. MacPherson was the equivalent to total absence of the students themselves for those days, and thus the finding is only of marginal relevance. It has been the intent of the Hearing Officer to explicitly comment upon every proposed finding of fact unless such proposed findings are cumulative, subordinate, or unnecessary. If a finding is immaterial, it is the intent of the Hearing Officer to have explicitly identified such finding as immaterial.
Recommendation For these reasons, it is recommended that a final order be entered that good and sufficient reasons do not exist to return the Petitioner, Ann E. M, to annual contract. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM C. SHERRILL, JR. 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 10th day of May, 1985. COPIES FURNISHED: Thomas W. Young, III, Esquire General Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Michael Casey, III, Esquire 2 South Biscayne Boulevard Suite 1800 Miami, Florida 33131 A. J. Henriquez, Ph.D. Superintendent The School Board of Monroe County, 242 White Street P.O. Drawer 1430 Key West, Florida 33040-1430 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact Patricia Wilkins has been licensed as a laboratory technologist since 1976. She held a laboratory technician license from 1974 until 1976. She has been working continuously as a technician or technologist since 1974. (Testimony of Patricia Wilkins.) Ms. Wilkins obtained her Associate of Science degree from Valencia Community College in April 1974. Her major course of study was Medical Laboratory Technology. In May 1953, she was awarded a Bachelor of Science degree from Tennessee State University, with a major course of study in business. She obtained a masters in Business Administration from Vanderbilt University in July 1985. (Petitioner's application and transcript.) The Department of Health and Rehabilitative Services is responsible for administering Chapter 483, F.S., related to health testing services. The Department prescribes minimum qualifications and licenses clinical laboratory personnel. (Section 483.161, F.S.) Ms. Wilkins' application cites Section 10D-41.68(3)(a), Florida Administrative Code, as the rule under which she believed she qualified for licensure as a supervisor. (Petitioner's application.) The Department's denial letter dated July 23, 1986, is based upon Ms. Wilkins' lack of a bachelor's degree in a chemical, physical or biological science required by Section 10D-41.68(3), Florida Administrative Code.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Patricia Williams' application for licensure as a clinical laboratory supervisor be DENIED. DONE and ORDERED this 8th day of December 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of December 1986. COPIES FURNISHED: James A. Sawyer, Jr. District Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida 32801 Pat Wilkins 1630 Grange Circle Longwood, Florida 32750 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue As to Case 93-6927, whether Respondent, a licensed physician, violated the provisions of Section 458.331(1)(m), (t), (v), and (dd), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6928, whether Respondent violated the provisions of Section 458.319(5), 458.327(1)(a), and 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6929, whether Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida that regulates the practice of medicine. Respondent is a licensed physician in the State of Florida and has been issued license number ME 0028412 by the Petitioner. CASE NO. 93-6927 On December 12, 1990, Susan D. Bernhardt conducted an inspection for the Florida Department of Health and Rehabilitative Services (DHRS) of an abortion clinic named Miami International Esthetics Center (MIEC). Ms. Bernhardt was hired as a consultant by DHRS to conduct random inspections of MIEC pursuant to a stipulation between DHRS and MIEC. Ms. Bernhardt is a registered nurse and is experienced in surgical procedures. Ms. Bernhardt observed Respondent perform an abortion on a patient at MIEC on December 12, 1990. Also present in the operating room was a nurse anesthetist, to whom Respondent referred as Mr. Martin. Respondent, Mr. Martin, and Ms. Bernhardt were present in the operating room at all times during the procedure. Mr. Martin administered anesthesia and the patient lost consciousness. Shortly after losing consciousness, the patient began making sounds which Ms. Bernhardt described as "crowing noises" and to which Dr. Van Eldik referred to as "stridors". These sounds indicate that the patient's air passages are blocked, a condition that requires prompt action from the physician or from the person administering anesthesia since the condition can be life threatening. Ms. Bernhardt testified that she went to the patient and used her stethoscope to confirm that the patient was having breathing difficulties. She thereafter tilted the patient's head and restored her breathing. The amount of time that lapsed between the time the patient first experienced difficulties breathing and the time Ms. Bernhardt acted was not established. While it is clear that neither Respondent or Mr. Martin 1/ acted to provide the patient with any relief or to assure that her air passages were open so that she could receive adequate oxygen, it is not clear whether the action of Ms. Bernhardt obviated the necessity for either the physician or the nurse anesthetist to act. Consequently, it is found that Petitioner failed to establish by clear and convincing evidence that Respondent failed to properly supervise Mr. Martin by failing to order him to assist the patient when Ms. Bernhardt acted promptly to relieve the patient. Emergency equipment was maintained on a crash cart that was in the operating room during the procedure Ms. Bernhardt observed. As the operating surgeon, Respondent was responsible for making sure that appropriate emergency equipment was readily available. Appropriate emergency equipment would include emergency drugs on the crash cart. Throughout the procedure there were no emergency drugs present on the crash cart. Respondent failed to adequately supervise Mr. Martin to ensure that appropriate emergency equipment was readily available. As part of her inspection of MIEC, Ms. Bernhardt reviewed medical records at the clinic pertaining to patients of the Respondent. Some of the records that were reviewed by her are contained in Petitioner's Exhibit 5. Respondent's records reviewed by Ms. Bernhardt were of overall poor quality. Documentation concerning physical examination was scanty and often failed to include the size of the patient's uterine and a description of the presumptive signs of pregnancy. Anesthesia records were not filled out. Documentation concerning the recovery room period was virtually nonexistent. No vital signs or progress notes were charted. There was no follow-up documentation evidencing a pelvic examination and no notation of patient complaints or symptoms. The records reviewed by Ms. Bernhardt during her inspection did not justify or adequately document the course of treatment for the respective patients. A subpoena was served on Respondent by one of Petitioner's investigators that required him to turn over all medical records pertaining to certain named patients. A similar subpoena was served on Mr. Angel Caso, the owner of MIEC. In response to the subpoena that was served on his client, Respondent's attorney informed the investigator that Respondent did not have any medical records other than those that would have been maintained at the MIEC. In response to the subpoena that was served on him, Mr. Caso turned over medical records pertaining to 45 patients. These records reflect that the Respondent was their attending physician. Mr. Caso could not be subpoenaed by Petitioner to compel his attendance at the formal hearing because he could not be located. The medical records that were turned over to Petitioner pursuant to subpoena were admitted into evidence as Petitioner's Exhibit 5 as records received by Petitioner during the course of an official investigation. There was no evidence that any other medical records pertaining to these patients exist. The medical records that constitute Petitioner's Exhibit 5 do not justify or adequately document the course of treatment of the respective patients. CASE NO. 93-6928 Section 458.319(5), Florida Statutes, provides, as follows: (5) The licensee must have on file with the department the address of his primary place of practice within the state prior to engaging in that practice. Prior to changing the address of his primary place of practice, whether or not within this state, the licensee shall notify the department of the address of his new primary place of practice. The Petitioner maintains the addresses of physicians by computer. There is no statute or rule that requires a physician to notify the Department in writing as to a change of address, but the Department's policy is to require that address changes be in writing and that the request for a change of address come from the physician. There was no written notification from Respondent to the Petitioner that his business address had changed prior to September 1992. At the time of the formal hearing, Respondent's business address was 102 East 49th Street, Hialeah. His former business address was 4821 West 4th Avenue, Hialeah, Florida. At the times pertinent to this proceeding, Respondent's home address was 14710 Day Pine Avenue, Miami, Florida. As of December 17, 1990, Petitioner had been informed of that address. Petitioner's investigator, Diane Robie, interviewed Respondent at his business address on East 49th Street on August 22, 1991. Respondent had been at this address for approximately eight months as of August 22, 1991. This new business address was reflected by Ms. Robie's report, which was filed with Petitioner on October 8, 1991, but that report did not trigger a change of the business address Petitioner maintained for Respondent in its computers. Respondent's license to practice medicine was scheduled to expire on December 31, 1991. In mid October 1991, the Department of Professional Regulation (Department) mailed a renewal notice to Respondent's former business address on West 4th Avenue. As required by Section 458.319(4), Florida Statutes, the Department routinely mails to the physician a renewal form that the physician must use to renew his license. This mailing takes place 60 days before the physician's license is scheduled to expire. This renewal form is generated by computer and is sent to the mailing address that is on record with the Department and maintained by computer. It was the Department's policy to try to notify a physician at his home address if a renewal notice is returned from a stale office address. There was no evidence that the renewal notice and the renewal form that was mailed to Respondent at his former address in October 1991 was returned to the Department as being an incorrect address. The evidence failed to establish what happened to the renewal notice that was mailed to Respondent in mid-October 1991. There was no further attempt by the Department following the mid-October 1991 mailing to notify the Respondent at his home address or business address that his license was about to expire. Respondent's license expired on December 31, 1991, and his licensure automatically reverted to inactive status pursuant to Section 458.319(3), Florida Statutes. Respondent made no effort to contact the Department until June 1992 at which time his secretary/office manager contacted the Department by telephone and advised that Respondent had not received the renewal documentation. On August 10, 1992, the Petitioner wrote to Respondent at his home address. This was the first written communication between the parties since the mid-October 1991 mailing. Respondent mailed a check in the amount of $500.00 for the renewal of his license to the Department in September 1992. On October 6, 1992, the Department wrote Respondent at his former address on West 4th Avenue and advised that prior to the renewal of his license, Respondent had to pay an additional fee in the amount of $350.00 for the processing of his renewal application and that he would also have to submit proof that he had earned required continuing medical education credits. On February 15, 1993, the Department sent to Respondent a letter at his East 49th Street address that provided as follows: This letter is in response to your (sic) to your submission to renew your Florida medical license which was received in the Board office on 9-15-92. Unfortunately the Board of Medicine cannot comply with your request until the follow- ing is received: $350.00 renewal fee. (in addition to the $500 already submitted) You did not fill out the Financial Respon- sibility portion of the renewal application, therefore, you will need to fill out a new form, and have it properly notarized. Please submit an affidavit for your active practice activities between January 1, 1992, and the present date. Any person applying for reactivation of a license must show either that such licensee main- tained tail insurance coverage which provided liability coverage for incidents that occurred on or after January 1, 1987, or the initial date of licensure in this state, whichever is later, and incidents that occurred before the date on which the license became inactive; OR that such licensee MUST SUBMIT A NOTARIZED AFFIDAVIT STATING THAT SUCH LICENSEE HAS NO UNSATISFIED MEDICAL MALPRACTICE JUDGMENTS OR SETTLEMENTS AT THE TIME OF APPLICATION FOR REACTIVATION. After July 1, 1992, you will need to submit copies of at least 40 hours of Category I CME earned between January 1, 1990, and the present date. Five of these hours must be in Risk Management. Also one hour of HIV/AIDS Category I CME needs to be submitted. Once the above items are received, we will proceed with the issuance of an active Florida medical license. (Emphasis is in the original.) Respondent met all requirements for the renewal of his medical license on March 16, 1993, the date on which his license was reactivated. Between January 1, 1992, and March 15, 1993, Respondent engaged in the practice of medicine in the State of Florida without an active license. Case 93-6929 Petitioner filed an Administrative Complaint against Respondent on April 27, 1988, which was subsequently referred to the Division of Administrative Hearings and assigned DOAH Case No. 88-5546. On February 28, 1989, the parties to that proceeding executed a "Stipulation" which settled the dispute. On April 19, 1989, the Board of Medicine entered a Final Order that accepted the Stipulation and ordered the parties to abide by its terms. Pertinent to this proceeding, Paragraph 4 of the Stipulation required the following: 4. Within one (1) year of the date of filing of the Final Order incorporating the terms of this stipulation, Respondent shall complete twenty-five (25) hours of Category I Continuing Medical Education in the areas of Risk Management and/or Medical Records Keeping. Such continuing education shall be in addition to that amount required for renewal of licensure. Category I Continuing Medical Education is a course approved by the American Medical Association as a top level course. In March 1990, Respondent completed a 25 hour course sponsored by Jackson Memorial Hospital in the area of "Medical Records Keeping". Respondent notified Petitioner on March 21, 1990, that he had completed this course. This was the only course that Respondent claimed to have taken in satisfaction of the Final Order entered in DOAH Case 88-5546. This course has not been designated as a Category I Continuing Medical Education course by Jackson Memorial Hospital. The Petitioner advised the Respondent that the course he had taken did not satisfy its order. Respondent thereafter requested that the matter be reviewed by Petitioner's Probation Committee. This request was granted, but the Probation Committee determined that the course was not acceptable. Respondent did not comply with the order until March 16, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and which incorporates the following: Find Respondent not guilty of practicing beyond the scope of his competence in violation of Section 458.331(1)(v), Florida Statutes, as alleged in Count One of Case 93-6927. Find Respondent not guilty of practicing below the standard of care in violation of Section 458.331(1)(t), Florida Statutes, as alleged in Count Two of Case 93-6927. Find Respondent guilty of failing to keep proper medical records in violation of Section 458.331(1)(m), Florida Statutes, as alleged in Count Three of Case 93-6927. For this violation, Respondent should be reprimanded, assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent not guilty of failing to properly supervise the nurse anesthetist when the patient experienced breathing difficulties in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93- 6927. Find Respondent guilty of failing to ensure that the crash cart was appropriately equipped, thereby failing to properly supervise the nurse anesthetist in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93-6927. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.319(5), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by failing to timely notify Petitioner of his change of business address as alleged in Count One of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.327(1)(a), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by practicing medicine in the State of Florida after his license expired as alleged in Count Two of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent guilty of violating the provisions of Section 458.331(1)(x), Florida Statutes, by failing to timely comply with an order of the Board of Medicine alleged in Case 93-6929. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. DONE AND ENTERED this 31st day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of January, 1995.
Findings Of Fact After the hearing was called to order in the above styled cause, the parties submitted the following stipulation: Sometime in December of 1978, the Petitioner, MARY KANNER applied tot he DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Clinical Laboratory Registra- tion and Licensure Program, for a Clinical Laboratory Technologist License. After reviewing the petitioner's application and supporting documents, the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES discovered that she did not have the sixty (60) semester hours required by Section 10D-41.25(9). MRS. KANNER was notified of her failure to qualify for the requested Technologist license by letter from the Department dated January 30, 1979. Subsequently, MRS. KANNER requested an Administrative hearing. Pursuant to her inquires, Mrs. Kanner received several communications from the Respondent Department. One letter dated January 30, 1979, from Nathan B. Schneider, Director of the Office of Laboratory Services, stated that it was the finding of the Respondent Department that Mrs. Kanner might be eligible for licensure as a clinical laboratory technician, and the letter authorized her to work in that capacity until the next scheduled examination, or no later than July 1, 1979. The letter stated that Mrs. Kanner would be notified in advance of the time and place of the examination. A second letter dated January 30, 1979, to Mrs. Kanner from Nathan B. Schneider, acknowledged the receipt of her application for licensure as a technologist but informed her that she was apparently ineligible because she did not have the required sixty (60) semester hours, but also advised her of her entitlement to an administrative hearing. Petitioner submitted letters as follows: a letter to Dr. Schneider from Alice Browner, Registrar of the Canadian Sociaety of Laboratory Technologist. The letter stated in pat that Petitioner had trained for a period of six (6) months, mainly September, 1966, to March of 1967, in a training program in the hematology department. The training was listed as follows: Bacteriology 1 evening a week February - May Biochemistry Sunday afternoons March - June Histology Saturday mornings March - Middle of May Blood Bank One evening a week January, February & March Hematology 6 months formal training Experience - 23 months (excluding formal training) (Resume in Hematology written previously) A letter dated March 29, 1979, to Dr. Schneider from Arthur Rosenberg, Chief of the Department of Hematology at the Sir Mortimer B. Davis - Jewish General Hospital, stated in part that Petitioner started her course in medical technology in 1966, and that in 1969, she wrote the hematology subject examination and received her Canadian registration. She worked as a hematology technologist until 1971, and as a department supervisor from 1971, to 1974. The letter stated that the preparation time prior to writing her examination subject would be the "equivalent of 60-plus semester hours of study." A letter was submitted to Counsel for the Respondent Department dated July 16, 1979, in which John V. Briscoe, Director of Hospital Services for the Sir Mortimer B. Davis - Jewish General Hospital, supplied a document which stated that the Jewish General Hospital is "an affiliated teaching hospital with McGill University, Montreal, Quebec, and is fully accredited by the Canadian Council on Hospital Accreditation, the date of the last accreditation survey being September 26, 1977." In answer to the statement by the Respondent Department that the Petitioner did not have documented evidence of the required sixty (60) semester hours direct from a university, Petitioner explained that in Montreal, Canada, in 1966, all English-speaking schools for nursing and technology took place in various accredited hospitals, using the same format as would be used at a university. In a separate section of the hospital was the school of nursing and the school of technology, but in recent years all of the schools were at the universities. Dr. Howard R. Rarick, Chief of the Clinical Laboratory Improvement Program for the Respondent Department, reviewed Petitioners application and supporting documents and did not find a transcript showing completion of sixty (60) hours credit or its equivalent as required by the State statute and rule promulgated thereunder. The Respondent Department does not evaluate the credits from foreign schools or institutions but forwards the credits to the International Education Research Foundation, which evaluates and determines the equivalent American credits that should be allowed. The Petitioner had no certified transcript from the hospital or university in which the foreign credits were earned and, therefore, was unable to send this to the Research Foundation to convert the foreign credits. The letters submitted by Petitioner are insufficient to substitute for a certified transcript for evaluation purposes. Both parties submitted a stipulation of facts, and the Respondent Department submitted a memorandum of law. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Mary Kanner, to sit for examination as a technologist be denied. DONE and ORDERED this 30th day of August, 1979, in Tallahassee, Leon County, Florida. DELPHIAN C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mrs. Mary Kanner 1901 North 51st Avenue Hollywood, Florida 33021
Recommendation The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows: Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology. (There was no agreement as to paragraph 3) Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause." In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS, that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, 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 26th day of February, 1986. COPIES FURNISHED: Steven Rowitt 5966 N.W. 28th Street Sunrise, Florida 33313 Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 4. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 6 and 7.I Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 14. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Rejected as argumentative. Adopted in Finding of Fact 16. Rejected as legal argument. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.
Findings Of Fact In October 1985, Dennis J. Donegan, Petitioner, qualified for and took the examination for medical technologist in hematology. He passed the examination and was subsequently so licensed. Effective January 1, 1986 new rules were adopted increasing the requirements for eligibility for applicants to take examinations in the various fields of medical technologist specialties. Although this rule was adopted by Respondent after complying with the procedural requirements for adopting rules, Petitioner was not personally notified of the change and was unaware of the increased requirements until his application to take the fall 1986 examinations in chemistry and microbiology specialties was denied. By letter dated August 27, 1986 Respondent denied the application because Petitioner did not meet the education requirements established by the rule which became effective January 1, 1986. Petitioner contends that had he known of the proposed rule change he would have applied and sat for all of the various laboratory technologist specialty examinations before the rule change became effective. Petitioner further contends that under Rule 10D-41.69(6) he is qualified to sit for the examination by reason of being an applicant who was qualified to sit for an examination prior to January 1, 1986.
