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 Petitioner, Constance M. Liccione, is a licensed clinical laboratory technician, having received said license in October, 1979 from respondent, Department of Health and Rehabilitative Services (HRS). In the summer of 1983, petitioner began making inquiry with HRS concerning the requirements to take the clinical laboratory supervisor examination. Because of either a communication's breakdown, or a failure of the agency to promptly reply to her request, she was not told of the specific requirements until 1984, and it was only in April, 1985 that she was able to get confirmation from HRS that she had nine years and one month of clinical experience, and when coupled with her 90 semester hours of academic study in the science field, she was eligible to sit on the supervisor examination. For some unexplained reason, she also was unable to obtain an application form from HRS and finally she had to obtain one from a local junior college. On April 5, 1985, Liccione filed her application to take the October, 1985 supervisor examination. At that time, the examination consisted of two parts: (a) administration and supervision, and (b) technical specialties for which the applicant wished to be licensed. In June, 1985, HRS adopted a sweeping change in its rules (Chapter lOD-41) governing eligibility for all supervisor examinations taken after October, 1985. Under the new rules, HRS requires an applicant for licensure as a supervisor to meet all new requirements for a clinical technologist. This will require Liccione to either have a bachelor's degree in science, or to have completed 90 semester hours or equivalent and to have completed a one-year internship in an approved school of Medical Technology. In addition, in view of the more stringent eligibility requirements, the examination no longer includes testing on the technical specialties, but only has testing in the administration and supervision area. Liccione meets neither of the two new requirements. Therefore, she is barred from taking any examination after the October 1985 examination until she either obtains a college degree in science or completes a one-year internship. Liccione is understandably upset because it took almost two years to learn from HRS if she was qualified under the old rules to take the supervisor examination, and therefore she missed 3 or 4 opportunities to take the examination under the old criteria. Because of the new rules, it is now an all or nothing proposition on the October, 1985 examination. When Liccione became aware of the impending rule change, she contacted HRS to determine if she could get a waiver of the old rule which required her to take an examination in various technical specialties. The old rules required supervisor candidates to pass an examination in each of the specialties or subspecialties for which the license is sought. Based upon her nine plus years of experience, Liccione desired a waiver in the five technical specialties of microbiology, serology, chemistry, hematology and immunohematology for which she is already licensed as a technologist. After considerable give and take between the two, HRS agreed to present her request for a waiver to the Clinical Laboratory Advisory Council (Council). The Council considered the same on October 3, 1985 and denied her request. That prompted the instant proceeding. As a result of HRS's decision, she was required to take both parts of the old examination. Her results are not of record. There have been no waivers of the technical specialty part of the examination granted since HRS began regulating clinical laboratories in 1967. However, under the provisions of Rule 10D-41.27, Florida Administrative Code, as they existed prior to June, 1985, examination in each of the specialties area was permissive, and not mandatory since the rule merely required that ". . . supervisors. . . may be required to pass an examination given by (HRS) in each of the specialties. . . for which the license is sought." (Emphasis added.) Liccione presently has an HRS issued temporary supervisor license which expires after she receives the results of the October, 1985 examination. She is acting as the supervisor of a clinical laboratory for a medical doctor in Port St. Lucie, Florida and as such is in charge of all technical aspects of the operation. She has written the procedures manual for the laboratory which was approved by HRS inspectors, and is active in all five specialties for which she seeks a waiver. As noted above, by this time she has almost ten years of practical experience, and has worked in hospitals and laboratories in both a technician and supervisor capacity. These qualifications were not disputed. At final hearing HRS did not question the above qualifications but relied instead upon statistics which reflected that candidates with qualifications comparable to Liccione had done poorly on the examination. It also pointed out that when Liccione took the specialties examination for a technician, her scores were "never. . . more than 4% higher than minimum established competency in any technical specialty." From this, HRS opined that Liccione's chance of success on the examination was not good, and that she was not entitled to the requested waiver. It also fears that a bad precedent will be set if Liccione's request for a waiver is approved. However, the undersigned finds the uncontradicted practical experience, education and training to be the more persuasive and credible evidence on the issue of whether such training, education and experience is adequate to warrant a waiver of the five technical specialties on the examination. In this regard, it is noted that there was no evidence to show that such experience, education, and training was not comparable to the new requirements in Rule 10D-41.69(2), Florida Administrative Code, or that such experience, education and training was not adequate to demonstrate competence in the five specialties in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for a waiver of the technical specialty part of the October, 1985 examination be GRANTED, and if petitioner receives a passing grade on the administration and supervision portion of the examination, she be issued a clinical laboratory supervisor license. All other requests for relief should be DENIED. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2Oth day of January, 1986. COPIES FURNISHED: James A Liccione 168 S.W. Selva Court Port St. Lucie, Florida 33452 K. C. Collette, Esquire 111 Georgia Ave., Third Floor West Palm Beach, Florida 33401
Findings Of Fact Petitioner has 13 semester hours of science credits in college. She is also certified with the American Society of Clinical Pathologists. Petitioner's sole contention is that her certification is the equivalent of the seven remaining semester hours of academic instruction she needs to reach the 20 hours of science courses required for licensure by Rule 10D-49.68, Florida Administrative Code.
The Issue The issue for consideration in this case is whether Petitioner, Carol J. Cargill, was properly removed from her position as Director of the University's International Language Institute and the related stipend therefore properly terminated.
Findings Of Fact Dr. Cargill, a graduate of Brown, New York University, and Georgetown University, was recruited by the University in 1977. She was hired as a professor in linguistics on a nine month contract. In 1978 she began to develop the ILI, and thereafter took the title of Director, receiving therefor a 20 percent overload to her salary, separate and apart from her academic salary for a full time load. She was never officially appointed as "Director" of the ILI. Her duties with the ILI were separate and apart from her duties as a faculty member. Her appointment to the faculty at the University was as a 1.0 Full Time Effort, (FTE) professor in Linguistics in the Division of Modern Languages and Linguistics, for which she was tendered and signed a standard State University System contract for each year of her employment as a professor, and for which she received a salary pursuant to the United Faculty of Florida Collective Bargaining Agreement, (CBA). The "Directorship" of the ILI is not within the legislative classification of Director. Faculty and other appointments at the University are made either to a "position" which is a creation of the legislature, or to "Other Personnel Services", (OPS), which is, by its nature, temporary. On or about May 5, 1992, Dr. Roger Cole, Professor and Director of the Division of Modern Languages, requested that Dr. Cargill tender her resignation as Director of the ILI. Dr. Cargill refused to do so. Thereafter, on August 10, 1992, Dean Richmond, Dean of the College of Liberal Arts and Sciences, recommended to Provost Meisels that Dr. Cargill be replaced as Director of the ILI. In response to that recommendation, Provost Meisels appointed a three- person review panel to review the material accumulated regarding Dr. Cargill's directorship of the ILI and to conduct such interviews as it deemed necessary. Provost Meisels, in his charge to the panel, directed it to advise him as to whether, in its opinion, Dean Richmond's recommendation, based on information submitted by Dr. Cole, that Cargill be removed, "might be reached by a reasonable individual." On October 5, 1992, the review panel notified Provost Meisels that it had concluded the recommendation met the "reasonableness" standard articulated, and on October 27, 1992, Provost Meisels, in a two page letter to Dr. Cargill, "immediately" removed her as Director of the ILI, and stopped payment of the salary overload she was receiving for those services, effective November 1, 1992. In this letter, Provost Meisels advise Dr. Cargill no additional responsibilities would be assigned to her for the balance of the semester, and she was provided with a "leave with pay for one semester and one summer at 1.0 FTE anytime before the end of the calendar year 1994. Though no specifics were provided either in the letter or at hearing regarding the basis for the apparent dissatisfaction with Dr. Cargill's performance at ILI, the underlying tenor of the letter clearly indicates such existed. Dr. Meisels characterized his action as a reassignment pursuant to Board of Regents Rule 6C-5.130, and though the University's decision to reassign her was discretionary and authorized by that rule, she had the right to file a grievance regarding the matter pursuant to USF Rule 6C4-10.010. The University neither followed nor attempted to follow the procedures for removal for just cause set forth in Rule 6C4-10.009, F.A.C. Dr. Cargill timely filed a Notice of Grievance and Request for Hearing pursuant to Rule 6C4-10.010 and, thereafter, the Step 1 hearing was conducted on June 3, 1993, by Dean Richmond. In his determination dated July 20, 1993, Dean Richmond found, "... there is no substantive basis for grievance on the issue of improper process in the termination of Dr. Cargill as Director of the International Language Institute." Dr. Cargill appealed this decision to then Assistant Provost Wright. In his Step 2 decision, Dr. Wright found the termination or reassignment of Dr. Cargill concerned a substantial interest of the grievant, but she had not met the burden of proof as required under the grievance procedure. He concluded that the recommendation for Dr. Cargill's removal from her position at ILI was consistent with the Board of Regent's rule and that no violation of that rule had occurred, which constituted a denial of her grievance. Dr. Cargill thereafter timely filed her Petition for Relief which forms the basis for this hearing. Ordinarily, a faculty member's assigned duties include a combination of both teaching and research, and, in addition, some faculty members are assigned administrative duties as a component part of their FTE. Though varying slightly from year to year, Dr. Cargill's assigned duties as FTE professor primarily consisted of teaching two courses and administering the graduate program within the Division of Language and Linguistics as "Director of Graduate Studies" which, though encompassing one third of her FTE, she considered an "administrative assignment." For this directorship, she received a one course release time. Over and above all that were her activities with the ILI. Dr. Cargill's assignments as a faculty member were recorded on periodic individual assignment of duties forms and activities reports. Her FTE directorship of graduate studies was listed thereon as "advisement." None of the ILI duties was ever included on either form. Up to 1992, the ILI was funded through the auxiliary budget of the School of Continuing Education and Dr. Cargill's ILI performance was evaluated by the head of the College for Continuing Education. Her FTE teaching and graduate student advisement performance was evaluated by the Director of the Division of Modern Languages and Linguistics. When she was first employed at the University, Dr. Gargill was tendered a standard one year State University System, (SUS), contract for each year of her employment as a professor. This covered her FTE activities only over the nine month regular school year. At no time was she offered or given a SUS contract for her ILI activities. Those activities were compensated for by the periodic issuance of an overload authorization which was signed by Dr. Cargill, the chairperson of the Division, and the Dean for the nine month regular school year. Notwithstanding Dr. Cargill understood the authorization form to be a contract for her services with the ILI, the overload form does not serve as an employment agreement. It merely serves to encumber the funds to be used to pay for the overload upon a showing that the work called for has been accomplished. Dr. Cargill was also given an OPS appointment for her summer term ILI duties when she was assigned no other duties. Overloads are instructional duties in an extension or continuing education activity which are in excess of a full appointment. They are not administered by the University's personnel department but, in this case, by the School of Continuing Education. They have never been considered as a position through which a person may attain tenure or any other right of continuing employment. To the contrary, the CBA requires overloads be offered "equitably". No notice is required before an individual performing overload duties can be denied further such assignments. By the same token, an OPS appointment is also temporary. An OPS appointment was used to compensate Dr. Cargill during the summer term because an overload is allowed only when the faculty member is carrying a full load. Since she had no assigned duties during the summer term except those involving the ILI, an overload would not have been the proper vehicle for compensating her for her summer term duties with the ILI. It must be noted here that OPS appointments, like overloads, carry no right of continuing employment and may be terminated without advance notice. While Dr. Cargill was serving in her FTE position and leading the ILI as well, her overload paid her an amount equal to 20 percent of her faculty salary, and the OPS summer appointment paid her sums in addition to that. During 1991, she was paid approximately $41,000.00 out of the University's Expense and General Funds for her services as an FTE faculty member. During the same period, she was also paid approximately $23,000.00 out of the University's Extension Incidental Trust Fund for her ILI activities. In his October 27, 1992 letter advising Dr. Cargill that her duties with the ILI were being terminated, Dr. Meisels specifically referred to the provisions of Rule 6C-5.130, F.A.C.. She was not given any new duties as a result of or subsequent to her removal from her position with the ILI. Instead, she continued her FTE teaching load and her FTE position as Director of graduate studies within the Division of Modern Language and Linguistics, but was not given an OPS appointment for the 1993 summer term. Dr. Cargill agrees she could have been relieved of her duties with the ILI for cause or from her FTE position as Director of Graduate Studies without notice or cause. However, she contends, the position with the ILI was an administrative assignment from which she could not be removed except for cause or consistent with the provisions of the other pertinent rules. The University does not assert she was removed from her position with the ILI for cause. It is not disputed that Dr. Cargill's duties, title, and pay in her ILI position gave her added prestige both on and off the University campus. Her removal from that position meant she would no longer have the prestige or receive the pay and as a result, she experienced an immediate substantial pay reduction and claims she was humiliated in front of her students and the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Dr. Carol J. Cargill's Petition for Relief be denied. RECOMMENDED this 6th day of September, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of September, 1994. APPENDIX TO RECOMMENDED ORDER 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. FOR DR. CARGILL: Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 17. Accepted and incorporated herein. & 19. Accepted except for use of term, "appointed" which has a special meaning in the law. Correct word should be, "assigned." 20. - 22. Accepted and incorporated herein. 23. Accepted. 24. - 26. Accepted and incorporated herein. 27. & 28. Accepted. 29. - 32. Accepted. 33. & 34. Accepted and incorporated herein. 35. - 36. Accepted and incorporated herein. FOR THE UNIVERSITY: & 2. Accepted and incorporated herein. 3. & 4. Accepted. - 7. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 14. Accepted. Accepted and incorporated herein. - 19. Accepted and incorporated herein. 20. - 22. Accepted and incorporated herein. 23. & 24. Accepted. - 27. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Accepted. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, Florida 33602 Henry W. Lavandera, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250 Richard E. Fee, Esquire Glenn, Rasmussen & Fogarty 100 S. Ashley Drive, Suite 1300 Tampa, Florida 33601-3333 Noreen Segrest, Esquire Acting General Counsel University of South Florida ADM 250 4202 East Fowler Avenue Tampa, Florida 33620-6250
The Issue The issue in this case is whether Petitioner’s application for continuing education course approval should be granted by the Board of Chiropractic Medicine.
Findings Of Fact Respondent, Board of Chiropractic Medicine, is the state agency responsible for the licensure and regulation of chiropractic medicine in the State of Florida. Section 456.013(6) and Chapter 460, Florida Statutes. The Board has the responsibility to approve continuing education courses sponsored by chiropractic colleges. Section 460.408, Florida Statutes. Continuing education providers established through medical osteopathic or chiropractic colleges send their initial courses to the Board for approval. Ordinarily, once the course is approved they become an approved provider and do not send subsequent continuing courses to the Board for approval. Petitioner is an approved continuing education course provider. On July 24, 2001, Petitioner submitted an application of an online course to the Board for approval. The submitted course, ChiroCredit.com, is a 13-hour course consisting of nine regular hours, two HIV/AIDS hours, and two risk management hours. With the application, Petitioner submitted a letter dated July 19, 2001, by Drs. Richard Saporito and Paul Powers, Petitioner’s representative. The letter requested the Board “to review the issue of acceptance of distance based online education credits for Chiropractors continuing education requirements in the State of Florida.” On August 22, 2001, Stephanie Baxley, Regulatory Specialist for the Board, sent a memorandum to Dr. Gene Jenkins, D.C., chair of the Continuing Education Committee, requesting continuing education review. Dr. Jenkins signed and marked the memorandum "approved" on August 29, 2001. On the same date, Dr. Jenkins also indicated approval of an online course offered by another provider, Logan College. Ms. Baxley wrote to Dr. Richard Saporito notifying him that ChiroCredit.com had been approved for continuing education credit. Vicki Grant is a programs operations administrator with the Department of Health. Her responsibilities include managing the licensing and discipline of four professions, including chiropractic medicine. Ms. Grant received a phone call from Dr. Jenkins who informed her that he had made a mistake by indicating approval of the online course offered by Petitioner. In response to his inquiry as to how to proceed, she advised him to notify the continuing education staff, tell them he had made a mistake, and ask that the matter be presented to the full board. She also spoke to Sharon Guilford regarding the matter. Ms. Guilford is Ms. Baxley's supervisor. Sharon Guilford is a program operations administrator with the Department of Health. One of her responsibilities is serving as the administrator for the continuing education section that consists of six professions, including chiropractic medicine. Ms. Guilford and Ms. Grant spoke about Dr. Jenkins' phone call. On September 11, 2001, Ms. Guilford wrote a note on a copy of the August 29, 2001 letter from Ms. Baxley to Dr. Saporito that stated as follows: "Per Dr. Jenkins-course should've never been approved. Send letter correcting the error of approval." On September 11, 2001, Ms. Baxley sent a letter to Dr. Saporito advising him that the approval letter of August 29, 2001, was sent in error and that the Board would take up the matter at their October 2001 meeting.1/ The Board did address the matter at their October 1, 2001 meeting which was held via teleconference. Dr. Saporito and Dr. Paul Powers spoke to the Board on behalf of Petitioner. During the last part of the Board's consideration of this matter, various board members expressed concern that the Board did not have enough information to vote for an approval of the course and discussed having an opportunity to receive more information. After much discussion, the Board unanimously voted to deny Petitioner's application for approval of the course for continuing education purposes. At the same meeting, the Board also denied an application of Logan College to provide continuing education via an online course. The Notice of Intent to Deny states the grounds for denial: As grounds for denial, the Board found that the course did not meet the requirements of Florida Administrative Code Rule 64B2- 13.004. Specifically, the rule does not contemplate the awarding of credit for virtual courses or those taken online by use of a computer. The Board opined that 'classroom hours' as used in the rule means in-person education and not time spent in front of a computer. The course offered by the applicant is an online offering. Additionally, the Board expressed concerns about the educational merit and security protocols used by online course providers, but welcomes more information regarding these topics. The Board has never approved an online, homestudy, or video-taped presentation for continuing education course credit. The courses presented to the Board by Petitioner and Logan College were the first online courses to be presented for Board approval. The Board interprets its applicable rule, which requires each licensee to obtain 40 classroom hours of continuing education, to require live and in-person classroom hours. Petitioner offered the testimony of two expert witnesses, Dr. Terry Heller and Dr. Joseph Boyle. Dr. Heller has knowledge regarding theories of learning and education, but lacks knowledge about chiropractors, chiropractic education, or chiropractic continuing education and does not appear to be very familiar with Petitioner’s particular online course. Dr. Boyle is familiar with both chiropractic continuing education and Petitioner's course. He disagrees with the Board's interpretation that the term "classroom hours" must mean a lecture or live format. However, Dr. Boyle described the broadest definition of "classroom" to be "anywhere, anyplace, at any pace, anytime." He acknowledged that the Board could set up criteria for online courses that differ from the criteria for traditional classrooms. Respondent’s expert witness, Dr. David Brown, noted that most chiropractors practice in isolation and very few have staff privileges at hospitals. In his opinion, a legitimate policy reason for requiring chiropractors to obtain a certain amount of in-person continuing education is that they can “rub shoulders with their peers” and learn from one another. Dr. Brown noted that many states impose restrictions on the number of online hours that may be taken or on the type of licensees who are eligible to receive credit. Dr. Brown interpreted the word "classroom" within the context of the rule containing the requirement of 40 classroom hours of continuing education to mean ". . . to physically sit in a room, in a classroom type environment which could be an auditorium or some other environment, with your peers who are also taking the class in order to obtain course credit. I think that's a traditional type of view." Dr. Brown's interpretation of "classroom" within the context of the Board's rule is more persuasive than those of Petitioner's experts.
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 continuing education course approval.2/ DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 5th day of March, 2002.
Findings Of Fact At all times material to these proceedings, Petitioner received his salary from two sources: the University of South Florida College of Medicine and the James A. Haley Veterans Administration Medical Center (Haley V.A.). As a special condition of his employment with the University, Petitioner also received a salary supplement which was derived through the College of Medicine Faculty Practice Plan. In consideration for the supplement, Petitioner agreed to assign all rights to fees or other compensation for medical services rendered by him during his employment term to the College of Medicine Faculty Practice Plan (Practice Plan). In spite of the wording of the employment contract with the University, Petitioner has never been expected to assign his salary from his position at the Haley V.A. to the Practice Plan. V.A. salary is excluded from the assignment process because of the relationship between the Haley V.A. and the University. The Haley V.A. is an institution that operates as a "Dean's Hospital". Essentially, this designation means that a V.A. Hospital and a College of Medicine in the same locale operate under a personnel and resource sharing policy. For example, if a surgeon is needed by both the Haley V.A. and the University, the two institutions will share in his or her appointment. The individual's salary is paid proportionately by each institution based upon their respective need for his or her services in a forty hour work week. The time is broken down into segments measured by eighths (8ths) known as full time equivalents (FTEs). A forty hour work week consists of 8/8 FTEs. The dual appointments of a physician under the sharing agreement customarily occur in the following manner: An advisory board known as the "Dean's Committee" at the College of Medicine recommends the dual appointment to the V.A. Hospital. The Professional Standards Board at the hospital evaluates the applicant after he or she has completed a separate application for employment with the Veterans Administration. Once a recommendation for appointment and salary level from the Professional Standards Board is received by the Medical Center Director, the applicant is either granted or denied the V.A. appointment. If an appointment occurs, the University then enters into an employment contract for the remaining FTEs with the physician. Although the two institutions work together and have parallel staffing in many of their Departments, each institution is responsible for hiring and managing its own employees. This autonomy is required because the institutions have different missions. The Petitioner accepted dual appointments to the University's College of Medicine and the Haley V.A. in 1979. His original appointments were for 5/8 FTEs as Staff Surgeon in Peripheral Vascular Surgery at the Haley V.A. and 3/8 FTEs as an Associate Professor of Surgery at the University. Petitioner's employment at the Haley V.A. began on June 1, 1979. His employment at the University began on September 1, 1979. Petitioner's clinical competence, research and development accomplishments, surgical skills and teaching abilities are unassailable in both institutions. The attempted attacks on these talents during hearing were ineffective. When Petitioner assumed his responsibilities at both institutions, he eventually became head of the vascular surgery program at the Haley V.A. and Director of the Division of Vascular Surgery with the College of Medicine, a parallel position. Although Petitioner's services were originally allocated as 5/8 FTEs to the Haley V.A., both institutions knew his career goals were always focused upon his teaching position at the University and his administrative responsibilities there as Director of the Division of Vascular Surgery. During his early years at both institutions, Petitioner's responsibilities at each facility grew and became more demanding. Petitioner naturally focused on his primary career goals at the University and delegated many of his V.A. responsibilities to extremely competent physicians under his direction. In 1986, the Chief of Surgery at the Haley V.A. took steps to enforce the required tours of duty for academic doctors with V.A. appointments. Audits at another Dean's Hospital had revealed that the academic staff there had been lax in fulfilling the time requirements demanded by their individual employment contracts. This administrator did not want a similar occurrence at his hospital. On November 16, 1986, the Chief of Surgery asked the V.A. doctors he supervised to sign an affirmation of intent to work the amount of hours required by their individual appointments. Petitioner signed the affirmation and acknowledged that he would work 50 hours at the Haley V.A. during every two week time period, in accordance with his 5/8 FTEs V.A. appointment. Petitioner was unable to meet these hourly requirements during the biweekly time allocations. He voluntarily reduced his V.A. appointment from 5/8 to 4/8 FTEs, effective May 8, 1988. After his V.A. appointment reduction, Petitioner was still unable to meet the biweekly time requirement of 40 hours at the Haley V.A. Administrators at the V.A. wanted him to be physically present in the hospital during the time he spent on V.A. matters. Petitioner believed he was unable to comply with this requirement because of his obligations at the University. As Director of Vascular Surgery, he was responsible for the vascular surgery portion of the Residency Program at the Bay Pines V.A. Hospital in St. Petersburg and the Tampa General Hospital in downtown Tampa. On June 15, 1988, the Acting Director of the Haley V.A. corresponded with the Chairman of the Department of Surgery at the University. The Chairman at the University was notified by letter that a decision had been made to terminate Petitioner's V.A. appointment. The anticipated termination date was July 16, 1988. A discussion with the Chairman regarding this matter was requested by the Acting Director at the V.A. The Chairman replied to this letter on June 28, 1988. He advised the Acting Director that he had placed the matter on the Surgery Mini-Dean's Committee meeting scheduled for July. Petitioner did not receive copies of the correspondence between the Acting Director at Haley V.A. and the Chairman of the Department of Surgery at the University. Petitioner was not aware of the discussions between the University and the V.A. regarding the further reduction of his FTEs at Haley V.A. On August 23, 1988, Petitioner was advised in writing that his salary for the 1988/89 academic year had been budgeted at $145,000.00. This figure included his salary from the Haley V.A., the State of Florida and other funds within the USF Department of Surgery which were derived through the College of Medicine Faculty Practice Plan. He was also approved to receive a salary supplement of $30,000.00 should his productivity and funds in the Division of Vascular Surgery allow for this additional amount. These additional funds would have come from profits made within the Division and assigned to College of Medicine Faculty Practice Plan, according to the usual operating procedure. On August 24, 1988, Petitioner was offered his tenured 3/8 FTEs at the University. The length of the appointment was from August 8, 1988 to August 7, 1989. His salary from the Florida Legislature funding lines was scheduled as $23,801.00. As a special condition of employment, he was advised that his salary may be supplemented with funds derived through the College of Medicine Faculty Practice Plan, in consideration of his agreement not to engage in patient case activities other than as a faculty member. Petitioner accepted the contract on September 1, 1988. On September 27, 1988, Petitioner was advised by the Chairman of the Department of Surgery at the University that the Haley V.A. wanted to make changes in his appointment at that institution. On November 21, 1988, the Chief of Staff at the Haley V.A., the Dean of the College of Medicine and the Chairman of the Department of Surgery had a meeting regarding Petitioner's 4/8 FTEs at Haley V.A. Petitioner was not aware of the meeting nor was he invited to attend. The chief of staff at the V.A. advised the University that he was going to ask Petitioner to resign 3/8 of his remaining FTEs at the V.A. effective December 4, 1988. If he had failed to agree, the action would be taken administratively. The Dean told the Chairman of the Department of Surgery that he would approve supplementing Petitioner's total salary from funds received through the College of Medicine Faculty Practice Plan. The Dean and the Chairman agreed to restore Petitioner to the salary level he would have received that academic year if he had not had 3/8 FTEs from the Haley V.A. removed from his compensation. Although a letter was sent to Petitioner requesting resignation of a portion of his FTEs, he did not resign his 3/8 FTEs on December 4, 1988. On December 5, 1988, his V.A. appointment was converted to an intermittent appointment of 1/8 FTE by the Director of the Haley V.A. The Dean of the College of Medicine authorized a salary adjustment for Petitioner at the University. Petitioner was to be paid a salary equaling the level of salary he had expected for the year prior to the V.A. action. This additional salary compensation was derived through the College of Medicine Faculty Practice Plan. During the 1988/89 academic year, Petitioner was allocated the same total amount of compensation from all sources after his V.A. FTEs were reduced because of the approved increase in his compensation from the College of Medicine Faculty Practice Plan. Petitioner filed a grievance against the University for the reduction of his V.A. FTEs on February 3, 1989. The grievance filed with the University has no basis in law or fact because the Haley V.A. has the right to reduce the FTEs of its own employees. When one of the parties to the "Dean's Hospital" personnel sharing policy decides it does not want to continue to assign a certain number of FTEs to an employee, the other institution does not have a concomitant responsibility to provide that employee with a forty hour work week. The shared employee has two separate employment contracts. Petitioner has been continuously aware that his employment at the Haley V.A. was separate from his employment at the University. In his Memorandum to the Chairman of the Department of Surgery dated October 3, 1988, he wrote: ". . . that any decision regarding changing (sic) in my appointment status with the V.A. is entirely their responsibility." After the Haley V.A. reduced Petitioner's appointment to an intermittent 1/8 FTE, he was required by the Chairman of the Department of Surgery to cooperate with the Haley V.A. in the establishment of its vascular lab. He was also instructed to assist in the assignment of shared lab technicians under the "Dean's Hospital" sharing agreement. These two tasks were part of his duties as Director of the Division of Vascular Surgery. A meeting between Petitioner, the Department Chairman and administrators from the Haley V.A. on February 1, 1989, did not bring about a resolution of the conflicts between Petitioner and the V.A. regarding the hospital's creation of its own vascular lab. The Chief of Staff at the Haley V.A. wrote a letter to the Chairman of the Department of Surgery and made a proposal regarding the proposed sharing agreement on the vascular lab directly to him. This letter was received by the Department of Surgery on February 14, 1989. On March 1, 1989, the Chairman of the Department of Surgery had a meeting with Petitioner. By way of memorandum dated March 1, 1989, Petitioner was directed by the Chairman to pursue activity that would lead to a resolution of the problems between his Division and the Haley V.A. In particular, Petitioner was directed to assist in the establishment of a vascular laboratory at that facility. He was given four weeks to demonstrate he was complying with these directives. He was also advised that if the Chairman did not have evidence that these directives were being followed, he would ask Petitioner to step down as the Director of the Division of Vascular Surgery. On April 27, 1989, Petitioner was informed by the Chairman of the Department of Surgery that he was being removed as Director of the Division effective May 1, 1989. The reason given for his removal was that the Chairman had not detected any significant resolution of the problems cited in the memorandum. On May 1, 1989, the Chairman took over the administrative duties of the Division. The Chairman of the Department of Surgery had the authority and discretion to remove Petitioner as Division Director. Petitioner filed his second grievance on May 18, 1989, to challenge his removal as Division Director. This grievance urges that his removal as Director was an improper action based upon the following: 1) His removal was an act of retaliation in response to his filing the earlier grievance; 2) The Chairman of the Department of Surgery was incorrect in his determination that Petitioner had not attempted to resolve his differences with the Haley V.A.; and 3) The action was unconstitutional in that it interfered with his academic freedom and freedom of speech. Petitioner's removal was not related to the filing of the first grievance. There was no evidence presented at hearing to demonstrate that Petitioner took affirmative steps to resolve the conflict with the Haley V.A. about the V.A. vascular lab after he was directed to do so by the Department Chairman. Petitioner's academic freedom and freedom of speech were not violated by the Chairman's directives issued to Petitioner in his role as an administrator. The directives were given because the Division of Vascular Surgery was not fulfilling its obligations under the sharing agreement between the two institutions. When the directives were given, the Chairman advised Petitioner that his faculty position would not be affected by his response or lack of response to these administrative directives. The controversy with the Haley V.A. about the creation of its own vascular lab was the only problem Petitioner was directed to cure to maintain his position as Director. Based upon that representation from the Chairman, the allegations about other misdeeds or misconduct are rejected as matters which are irrelevant and immaterial. Petitioner did not have contract, tenure or traditional academic rights in the administrative appointment as Director of the Division of Vascular Surgery. Division Directors within the Department of Surgery serve at the will of the Chairman. A reasonable explanation was presented for Petitioner's removal from his administrative position. There was just cause for the Chairman's action. Petitioner's perception that his removal from the directorship was a disciplinary action is without merit. It was an administrative decision predicated upon the University's need to comply with the sharing agreement. One of the main reasons Petitioner objected to the establishment of a vascular lab at the Haley V.A. was that the lab would compete with the University lab and reduce its income. This, in turn, would affect the budget of the Division of Vascular Surgery and the contributions it would be able to make to the College of Medicine Faculty Practice Plan. All of the money previously received in Petitioner's Division from the vascular lab work done on behalf of the Haley V.A. would remain in house. As a result, the salary supplements received by Petitioner through the College of Medicine Faculty Practice Plan, would decrease in amount. Petitioner actually received $145,000.00 in salary from the state funding line and the College of Medicine Faculty Practice Plan during the 1988/89 academic year. In negotiations regarding Petitioner's annual salary for the 1989/90 academic year, the Chairman of the Department of Surgery agreed to pay him a salary of $145,000.00. These funds were to be provided through state funds at 3/8 FTEs and funds derived from the College of Medicine Faculty Practice Plan. The Chairman had the discretion to disburse the Faculty Practice Plan funds in this manner. Petitioner relied upon the representation that he would receive $145,000.00 as his salary when he began the 1989/90 academic year at the University on August 9, 1989. A written employment contract for the 1989/90 academic year was not placed into evidence. In order to receive a salary of $145,000.00, Petitioner's state salary had to be supplemented monthly with $9,326.33 in Faculty Practice Plan funds. This occurred during the first quarter of the academic year. On September 22, 1989, the Chairman sent a written memorandum to Petitioner which advised him that an adjustment was being made to reduce the amount of money he received from the Faculty Practice Plan by $1,893.33 per month for the remaining three quarters of the 1989/90 academic year. This would amount to a salary reduction of $17,039.97. As his reason for the reduction, the Chairman cited the financial condition of the Division of Vascular Surgery and Petitioner's removal as Director. A third grievance was filed by Petitioner after he received the memorandum about his salary reduction. The Petitioner has continuously predicted that the Division's financial condition would suffer as a result of the loss of two vascular surgeons and the loss of the profits from V.A. vascular lab business that was formerly conducted at the University lab. Ordinarily, the Chairman has the discretion to adjust monthly salary supplements derived through the College of Medicine Faculty Practice Plan based upon the financial condition of a Division and its contributions to the Plan. This occurs because salary supplements are given to the medical faculty if they have contributed to the Practice Plan and the money is available. In this case, however, the Chairman had earmarked salary funds for Petitioner through the Plan. These funds were not a supplement, they were part of Petitioner's total salary compensation from the University. The College of Medicine chose to compensate Petitioner in this manner instead of using 8/8 FTEs provided by the State Legislature. The University has the right to decide how Petitioner's employment at the institution is funded. Petitioner is entitled to an additional $17,039.97 in salary compensation derived through the College of Medicine Faculty Practice Plan for the 1989/90 academic year.
Recommendation Based upon the foregoing, it is RECOMMENDED: The first grievance should be dismissed as the University lacks jurisdiction over the subject matter. The Chairman's decision to remove Petitioner as Director of the Division of Vascular Surgery in the second grievance should be upheld. Petitioner does not have a protected property interest in the position. Petitioner should be awarded $17,039.97 in salary pursuant to his employment contract with the University during the 1989/90 academic year. DONE and ENTERED this 19th day of November, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1992. APPENDIX Petitioner's proposed findings of fact in his suggested Recommended Order are addressed as follows: Accepted. See HO #6. Rejected. Contrary to fact. See HO #1-#2. Rejected. Insufficient evidence. See HO #52. Accepted. See HO #8. Accepted. Rejected. Contrary to fact. See HO #29-#33. Accepted. Rejected. Contrary to fact. Accepted for the academic year 1989/90. See HO #49-#58. Rejected. Contrary to the evidence. See Conclusions of Law. Rejected. Contrary to fact. See HO #39 and #46. Rejected. Contrary to fact. See HO #32-#33, #39 and #40. Rejected. Contrary to fact and law. See HO #43-#44. Rejected. Contrary to fact. See HO #40. 15. Accepted 1988/89 and 1989/90. See HO #48 and #58. 16. Rejected. Contrary to fact. See Conclusions of law. Respondent's proposed findings of fact are addressed as follows: Current employment status beyond the scope of this hearing. Otherwise, accepted. See HO #6. Generally accepted. See HO #3-#5. Accepted. See HO #3. Accepted. Accepted. See HO #3. Accepted. See HO #6. Accepted. See HO #1. Accepted. Accepted. Rejected. Contrary to fact. See HO #49-#50. Rejected. Contrary to fact. See HO #22, #25 and #45. Accepted. See HO #20. Accepted. Accepted. Accepted. Accepted as to Division Directors. The rest is irrelevant. See HO #35. Accepted. Accepted. See HO #40. Accepted. Accepted. See HO #11. Accepted. See HO #13. Accepted. Rejected. Self serving and irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7. Accepted. Rejected. Irrelevant. Petitioner was not required to defend against such allegations in this proceeding. See HO #7. Accepted. See HO #13. Accepted. See HO #14. Rejected. Hearsay. Irrelevant. See HO #5. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. Rejected. Immaterial. See HO #7 and #14. Rejected. Improper conclusion. Petitioner was not required to defend against such allegations in these proceedings. Accepted that Petitioner's V.A. FTE reduction was a V.A. decision. Accepted. See HO #5. Rejected. Irrelevant. See HO #22 and #24. Rejected. Irrelevant. See HO #22 and #24. Rejected. Contrary to fact. See HO #22 and #24. Accepted. See HO #25. Accepted. See HO #47. Accepted. See HO #5. Accepted. See HO #47. Accepted. See HO #47. Rejected as to causation. Not sufficiently established at hearing. Accepted. See HO #30. Accepted. See HO #32. Accepted. See HO #35 and #40. Rejected. Immaterial. See HO #7 and #42. Accepted. See HO #33 and #39. Rejected. Not established at hearing. See HO #7 and #42. Accepted. See HO #25. Rejected. Speculative. Rejected. Irrelevant. See HO #42. Rejected. Contrary to fact. See HO #49-#58. Rejected. Contrary to fact. See HO #49-#58. Rejected. Immaterial. See HO #42, #55-#56. Rejected. Immaterial. See HO #7 and HO #42. Accepted. See Conclusions of Law. Accepted. See HO #26. Accepted. See HO #36. Accepted. Accepted. See HO #55. Accepted. COPIES FURNISHED: Jeremy E. Gluckman, Esquire Gluckman & Newman, P.A. 100 Twiggs Street, Suite 220 Tampa, FL 33602 William M. Blackshear, Jr., Department of Surgery, MDC, Box 16 12901 North 30th Street Tampa, FL 33612 Thomas M. Gonzalez, Esquire Robin E. Greiwe, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Tampa, FL 33601 Joline Micelli-Mullen, Esquire University of South Florida 4202 E. Fowler Avenue Tampa, FL 33620 Bryan Burgess, General Counsel University of South Florida ADM Building 250 4202 Fowler Avenue Tampa, FL 33620-6250 Jeannette Abin Marcus, Clerk Univeristy of South Florida Administration, Room 250 Tampa, FL 33620-6250 Francis T. Borkowski, President University of South Florida Administration, Room 250 Tampa, FL 33620-6250 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact By letter dated April 14, 1986, the Respondent denied the Petitioner's application to take the medical technologist examination in microbiology under the provisions of the Florida Clinical laboratory Law, Chapter 483, Florida Statutes because the Petitioner did not show "verification of 4 years pertinent microbiology experience required under Section 10D-41.69(5), Florida Administrative Code." By letter dated May 6, 1986, the Petitioner disputed the factual allegations contained in the Respondent's letter of denial and requested an administrative hearing. An informal administrative hearing was held in this cause on August 25, 1986. The hearing officer at the informal proceeding concluded that there were disputed issues of material fact and that the case should be reset for a formal hearing. On November 26, 1986, the Department of Health and Rehabilitative Services referred the matter to the Division of Administrative Hearings for conduct of a formal administrative hearing. On February 17, 1987, a Notice of Hearing was mailed to both parties setting this cause for April 15, 1987, in Miami, Florida. The Petitioner's notice was addressed to 461 Lee Drive, Miami Springs, Florida 33166. All documents within the case file indicate that that is the Petitioner's correct address. The Notice was not returned to the Division of Administrative Hearings by the postal service. The Petitioner failed to attend the formal hearing, did not send a representative and did not communicate with the undersigned in any way regarding the formal hearing. After waiting approximately 45 minutes past the scheduled time for commencement of the formal hearing, the hearing was opened and the Respondent indicated that it did not desire to present any evidence. Therefore, no evidence was taken and the hearing was adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petitioner's application to take the medical technologist examination in microbiology be denied. DONE and ORDERED this 6th day of day May, 1987 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 6th day of May, 1987. COPIES FURNISHED: Leonard Helfand, Esquire District XI Legal Counsel 401 Northwest 2nd Avenue Suite 1040 Miami, Florida 33128 Robert Acle 461 Lee Drive Miami Springs, Florida 33166 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Mrs. Yoder made a statement regarding her qualifications for licensure, and identified and introduced Exhibits 1-7. The Hearing Officer, upon her request, held the record open to allow her the opportunity to file a late filed exhibit, which has been received as Exhibit 8. It was stipulated that Mrs. Yoder had 17 years of experience and two (2) years of training in the field of cytology. This background placed her generally within the provisions of Subsections (5) and (6) of Rule 100-41.03, Florida Administrative Code. However, the issue became whether Mrs. Yoder had the required hours of college credit. Subsections (5) and (6) of Rule 100-41.03, F.A.C., requires an applicant: to have a minimum of 60 semester hours or equivalent in an accredited college or university with a chemical, physical, or biological science as a major subject. It was stipulated that Mrs. Yoder had successfully completed ten (10) hours of credit in an accredited college. The Hearing Officer finds from the evidence submitted that she has 75 hours of instruction from the Academy of Health Science, U.S. Army, Ft. Sea Houston, Texas. Mrs. Elizabeth Carter testified that she had evaluated Mrs. Yoder's application, and had determined that Mrs. Yoder lacked the required hours of college credit. It was proven by unrebutted testimony that the Academy of Health Science, U.S. Army, Ft. Sam Houston, Texas, is not an accredited college or university. Having reviewed the other matters presented to include Exhibits 1-5, the Hearing Officer finds that Mrs. Yoder is eminently qualified except for the lack of the 50 semester hours or its equivalent required by Rule 10D-41.05(5) and (6), F.A.C.
Recommendation The Hearing Officer therefore recommends that the Respondent agency deny the application. DONE and ORDERED this 16th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barbara Dell McPherson, Esquire Staff Attorney Division of Health Post Office Box 210 Jacksonville, Flora Geraldine K. Yoder 3101 N.W.. 4th Avenue, Apt. 1 Pompano Beach, Florida 33064
