Findings Of Fact David R. Ness, Petitioner, attended Southern College of Optometry in Memphis, Tennessee, and graduated in May 1990. Part of his training included a three-month externship with James C. Lanier, O.D., an optometrist practicing in Jacksonville, Florida. Dr. Lanier found him a very competent student, thorough in his fact finding and case histories; and satisfactory, if not above average, in his examination of the patients. Dr. Lanier did not participate in the grading of the examination in issue and has no personal knowledge of Petitioner's performance on the examination. Petitioner sat for the September 1990 Optometry licensure examination. He passed the certification portion of the examination and the laws and rules section; he failed the pharm./ocular portion and the clinical portion. After several challenges to the examination, the Board adjusted some scores, but Petitioner's scores in the pharm./ocular section and the clinical sections were still below passing. Written Examination The pharmacology/ocular written portion of the examination consists of a series of case histories, with five questions directed to each. Petitioner explained that he challenged his score on the following specific questions: History #1, question #4; History #5; question #23; History #7, questions #32-35; and History #10, question #48. Case history #1 describes a 19-year old female soft contact lens wearer with symptoms correctly identified by Petitioner as Giant Papillary Conjunctivitis. The patient relies on her contact lenses because she is an actress. The severity of her condition is 3+ on a scale of 1-4, with four being the most severe. Question #4 requires selection from six choices of the initial management course of choice. Petitioner chose "c", Pred Forte suspension, every two hours. Pred Forte is the strongest commercially available steroid and its application every two hours is reserved for very severe cases. While the condition described is moderate to severe, the better answer is "f", "switch to preservative free system, enzyme cleaning 1 time a week". The patient's cleaning solution, described in the case history, is an old solution with a preservative which is known to cause conjunctivitis. While the safest course would be to discontinue contact lens wear, this is a radical option for a patient who must wear the lenses for her work. The preferred course then is to change the solution to see if the condition improves before moving to a less conservative treatment such as Pred Forte. Case history #5 describes symptoms and includes a color photograph of the eye in issue. Petitioner correctly identified the differential diagnosis as "Essential Iris Atrophy" and "Reiger's Anomaly". The next question, #23, states that the fellow eye shows similar findings in a slit lamp examination, and asks which of the differential diagnoses is the final diagnosis. Petitioner selected "Essential Iris Atrophy". The correct answer is "Reiger's anomaly". Essential Iris Atrophy is almost always unilateral and Reiger's is bilateral. The question required the examinee to know this distinction. Case history #7, describes a 37-year old patient with alleged recent vision field loss which occurred after thoracic surgery. The history describes an examination in which the patient remarks that he "isn't going to sue the physician" and where, with coaxing, his vision is much better than he admits. The patient also presented summary results of carotid artery testing and CT studies, which were normal. In his answers to questions 32-35, Petitioner chose diagnoses and treatment based on his conviction that he should try to help anyone who would come to him. He missed the fact that the patient described in the case history is a malingerer who likely is trying to sue his surgeon, and who requires no treatment. Case history #10 describes a 68-year old patient who is being examined for fitting of an extended wear contact lens. The best corrected vision is 20/50 OD, with or without a contact lens. The examination question includes two photographs, one of the fundus examination, the other of a fluorescein angiogram. An angiogram is obtained by injecting dye in the forearm and taking pictures with a special filter as the dye circulates through the blood vessels within the eye. This process is able to reveal abnormalities in the eye. Petitioner missed the question relating to the final diagnosis, which should have been "age-related macular degeneration with secondary choroidal neovascular membrane". Final diagnosis relied, in part, on the fluorescein angiogram. While Petitioner is not arguing that his answer is correct, he contends that the question itself is invalid, because it depends on a process which optometrists are not licensed to perform and it was too technical for recent graduates. People coming out of school have been exposed to live patients and have seen fluorescein angiograms performed and have seen their photographs. Moreover, in Florida, the number of elderly patients makes it necessary that optometrists be proficient in diagnosing age-related macular degeneration. The Practical/Clinical Examination Section 1 of the clinical portion of the practical examination involves the two examiners' review of the examinee's performance of an actual eye examination of a live patient. The two examiners are briefed extensively prior to the examination as to what to look for, but they do not confer during the examination when scoring various functions. For this reason, there may be disagreement between the two examiners. The scores are averaged. On section 1, item #6, with regard to the patient's case history, "follow-up information", the point spread is 0-7, with points being subtracted for failure to follow up on certain information. One examiner gave Petitioner the maximum number of points for the entire case history section. The other examiner gave Petitioner a "no" (0 points) under "personal ocular history", and commented on the examination score sheet that the examinee did not ask ocular history. The same examiner took off 2 points on item #6, "follow-up information" and commented, "did not ask ocular history". At some point during Petitioner's initial challenge, he was given credit for item #3, because it was determined that he did obtain an ocular history. The additional points were not restored to item #6, but should have been; as the failure to obtain that history is the basis for the reduced score. The examiner was not present at hearing to explain any other basis. Section 2 of the clinical portion of the practical examination requires the examinee to perform a series of functions under the scrutiny of two examiners (not the same two as in section 1). Again, the scores are awarded without consultation and there are discrepancies. In each area the examiner marks "yes" or "no" as to whether the procedure is properly performed. A "no" must be supported with the examiner's comment. Two yes marks entitle the examinee to 2 points; a yes/no is worth one point; and two no's are scored zero. For each function, the examinee must demonstrate twice. That is, he says "ready", and the first examinee views the result, then he prepares again and signals, "ready", for the second examiner. For section 2, the candidate is performing techniques or functions on his own patient, a patient whom he brings to the examination and with whom he is familiar. Petitioner is challenging the grading method for Section 2. In 6 out of 16 techniques or functions, the two examinees disagreed; that is, one gave a "yes", and the other, a "no". Petitioner contends that he should get full credit anytime he got one "yes", since that indicates that two people, the examinee and one examiner, agree. There are several reasons why two examiners may disagree on whether the examinee performed a function or technique properly. In some instances one examiner may give the individual the benefit of the doubt; in other cases the patient might move or blink or the examinee might lose his focus. The fact that two examiners independently assess the results gives the examinee two chances to demonstrate his skill. The third section of the clinical examination requires an examination of a live patient where the refractive error of the patient's vision is determined, and a prescription is made. Before being presented to the examinee, the patient is examined independently by three licensed optometrists serving as "monitors". Their examinations give the refraction results against which the examinee's results are compared. Their examinations also determine whether the patient is suitable; that is, the eye must be refracted correctable to 20/20 and the other eye correctable to 20/50. A fourth monitor reviews the results before the patient is presented to the examinee. In this case the patient was examined by the monitors and was found acceptable. Petitioner had problems with the patient; the best he could read was the 20/25 line. Petitioner felt that the patient should have been disqualified and commented in writing on that at the end of his examination, as was appropriate. The comments were reviewed by Dr. Attaway, who considered that the patient had met the criteria when examined by the monitors. Petitioner's refractions varied significantly from the monitors' refractions, which also varied somewhat from each other. Petitioner received a score of 3, out of possible 20, on this portion of the examination. Dr. Attaway did not, himself, examine the patient and the monitors who performed the examinations were not present to testify. The only evidence to rebut Petitioner's findings was the written report of the monitors. Pass Rate for the Examination Out of 130 candidates, approximately 34 percent passed all parts of the September optometry examination. In 1986, 51 percent passed; in 1987, 33.5 percent passed; in 1988, 59.6 percent passed; and in 1989, 52 percent passed. These figures do not, alone, establish that the test is too technical or unfair, nor does the fact that very good students failed. When the examinations are evaluated, when the examinee's performance is rated, there is no established pass rate; the monitors have no idea how close the individual examinee is to passing, either originally or when a challenge is being addressed. Petitioner was a very articulate and candid witness. His two experts were clearly knowledgeable and were sincerely concerned that he should be licensed. None had the experience of Respondent's witnesses, also well-qualified licensed optometrists, in working with the examination. With the exception of the inconsistent score on Section 1, item #6, Petitioner failed to prove that he is entitled to a higher score on any portion of the examination, or that the examination itself was invalid or unfair.
Recommendation Based on the foregoing, it is hereby, recommended that Petitioner's final score on Section 1 of the clinical examination be adjusted to reflect full credit for Item #6; that he be permitted to retake Section 3 of the clinical examination; and that his remaining challenges to the examination be denied. RECOMMENDED this 29th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0700 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings 1.-2. Adopted in paragraph 2. 3. Adopted in substance in paragraph 20. 4.-6. Rejected as irrelevant. Adopted in summary in paragraph 2. Rejected as contrary to the evidence. Finding of Fact #15 reflects the grades after adjustment. Rejected as unnecessary. Adopted in paragraph 1. Rejected as unnecessary. Rejected as irrelevant. This fact does not make the examination invalid so long as it fairly evaluates the qualification of the applicant. 13.-14. Rejected as statements of statutory language rather than findings of fact. Respondent's Proposed Findings The Hearing Officer is unable to find where in the record the exact final score of Petitioner is reflected. Adopted in paragraph 1. Rejected as restatement of testimony rather than findings of fact. 4.-5. Rejected as unnecessary. 6.-15. Rejected as restatement of testimony; summary statements, or argument, rather than findings of fact. COPIES FURNISHED: David R. Ness 611 Poinsettia Avenue Titusville, FL 32780 Vytas J. Urba, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Patricia Guilford, Exec. Director Dept. of Professional Regulation Board of Optometry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue The issue in this case is whether the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), should enter into a contract with Southern Photo Supply as low responsive bidder under Invitation to Bid (ITB) 052-98; the Petitioner, E. L. Cole Photography, Inc., contends such a contract would breach the Petitioner's contract under ITB 055-97.
Findings Of Fact On May 14, 1997, the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), awarded a contract for miscellaneous photographic supplies to the Petitioner, E. L. Cole Photography, Inc., as the low responsive bidder under ITB 055-97. ITB 055-97 replaced a similar contract awarded to Southern Photo Supply, as the low responsive bidder under ITB 039-94. Both ITBs were restricted to minority business enterprises (MBEs). Both ITBs (039-94 and 055-97) specified supplies listed under "Product Groups." The preamble to the "Product Groups" list in the bid specifications for both ITBs stated: The following product groups include the listed representative products and the anticipated order quantities for the representative products during the . . . contract period. These lists are based on a combination of experience and estimation, and are furnished to assist bidders to determine their interest in the contract and to estimate the type and volume of business that might be derived from the contract. However, the agency reserves the right to vary both products used and quantities required as may best serve the interests of the agency in carrying out agency business. Both lists included a group consisting of various types of color negative standard roll film in quantities ranging from 120 to 360 rolls. ITB 039-94 was for an eighteen-month contract (through June 30, 1995), renewable for two additional twelve-month terms. ITB 055-97 was for a five-year contract (through June 30, 2002), renewable for one additional five-year term. Both ITBs (039-94 and 055-97) included the following provision entitled "Additions/Deletions": "As products and agency requirements change over the life of the contract the agency may add new or different products to an appropriate discount group, or increase the use of products, at the same discount rate, or discontinue or reduce the use of products." Twice during the life of the 1994 contract, the Department solicited price quotes from Southern Photo for a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94. Southern Photo responded that it would sell the film to the Department at a 33% discount, which was even higher than the already deep 32% discount for color negative standard roll film in Southern Photo's response to ITB 039-94. The Department saw no need to solicit price quotes from other suppliers to verify that Southern Photo's 33% discount was deep enough to justify foregoing the issuance of an ITB for the film, with attendant administrative costs and delay. Instead, the Department added the purchase to the 1994 contract using the "Additions/Deletions" clause. The second time the Department added a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94 was about the time it was awarding the contract to the Petitioner under ITB 055-97. In the Petitioner's response to ITB 055-97, the discount for color negative standard roll film in the Petitioner's response to ITB 055-97 was 18%. Upon inquiry, the Department was advised that Southern Photo again would sell the large order at a 33% discount. Given the depth of Southern Photo's discount, as compared to the discount for color negative standard roll film offered in the Petitioner's response to ITB 055-97, the Department's decision was logical and reasonable. The Department assumed that the Petitioner would not reduce its price for color negative standard roll film from an 18% discount down to a 33% discount. It also was logical and reasonable for the Department to believe that it would not get a price quote from any other MBE that would be enough below Southern Photo's price quote to justify the administrative cost and delay of issuing an ITB for the film. On or about April 22, 1998 (long after Southern Photo's contract under ITB 039-94 had expired and well into the Petitioner's contract under ITB 055-97), the Department decided it needed to place another large (11,000-roll) order of color negative standard roll film that was not specifically listed under "Product Groups" in ITB 055-97, namely Kodak Ektapress PJ400 135/36 (PJ400). The Department asked the Petitioner for a price quote. The Petitioner took the position that the order was covered by its contract under ITB 055-97 and quoted a price ($4.95 a roll) that would reflect the 18% discount offered on color negative standard roll film in the Petitioner's response to ITB 055-97. The Department believed that it could buy the PJ400 film at a price low enough to justify the administrative cost and the delay of issuing an ITB for the film instead of adding it to the Petitioner's contract at $4.95 a roll. To ascertain if its belief was accurate, the Department solicited price quotes from several other MBEs and was able to obtain lower quotes, including a quote from Southern Photo of $3.96 a roll. The Department decided that the prospect of possibly saving $11,000 or more would be worth the administrative cost and delay of issuing an ITB for the film. On or about May 22, 1998, the Department issued ITB 052-98 for 11,000 rolls of PJ400 film. Both the Petitioner and Southern Photo responded. Southern Photo again offered a price of $3.96 a roll. Recognizing that it was not bound by the 18% discount in its response to ITB 055-97, the Petitioner bid $4.30 a roll. However, the Petitioner submitted its response "under protest." The Petitioner made clear in the cover letter to its response that the Petitioner still believed that the 11,000 rolls of PJ400 film should be added to the Petitioner's contract under ITB 055-97. On June 4, 1998, the Department posted notice of its intent to award the contract to Southern Photo. The Petitioner filed a notice of protest on June 9 and a formal protest on June 22, 1998. In its protest, the Petitioner took the position that the intended award of the contract to Southern Photo would breach the Petitioner's contract under ITB 055-97. In part, the Petitioner based its protest on its understanding that, at the opening of the responses to ITB 055-97, the Department's Chief of Contract Purchasing, William R. Rothman, answered in the affirmative a question from the Petitioner's principal, Eddie Lee Cole, Sr., as to whether the Petitioner would be the supplier of all of the Department's needs for photographic supplies under ITB 055-97. Cole's testimony in support of the Petitioner's protest is rejected as being either a miscommunication or a misunderstanding on his part. It is not believed that the Department's Chief of Contract Purchasing would have answered such a question in the affirmative in the face of the provisions of ITB 055-97. See Findings 2 through 4, supra. Despite the possible ambiguity injected by the use of the phrase "representative products" in the preamble to the "Product Groups" list in the bid specifications for ITB 055-97, Rothman testified that he viewed the purpose of the phrase to be to give the Department flexibility in the use of the "Additions/Deletions" clause. In particular, Rothman understood the purpose of the phrase to be to alert bidders that the Department would not necessarily purchase all listed products or purchase them in the listed quantities. Given Rothman's interpretation of ITB 055-97, it is not likely that Rothman would have given an affirmative answer to Cole's alleged question. If he did, it is found that Rothman's answer was intended to incorporate the provisions of the ITB as defining the contractual relationship between the Department and the Petitioner. The Petitioner's protest also was based in part on evidence that, on at least one occasion, the Department purchased from the Petitioner photographic supplies not specifically listed under "Product Groups" in ITB 055-97 without making formal use of the "Additions/Deletions" clause. However, it is found that the Department's action in that regard was an oversight from not carefully comparing its purchase orders to the "Product Groups" list. Reading the ITB in its entirety and in pari materia, it is found that the phrase "representative products" was not intended to require the Department to purchase large (11,000- roll) orders of color negative standard roll film not specifically listed under "Product Groups" in ITB 055-97 from the Petitioner. (Despite this finding, it is suggested that rephrasing the language in future ITBs may eliminate ambiguity, as well as the cost and delay it apparently caused in this case.) The Petitioner's protest also was based in part on its concern that, despite virtually identical pertinent ITB provisions, the Petitioner was not treated under its contract (ITB 055-97) the same way as the Department treated Southern Photo under its contract (039-94). However, as reflected in these findings, the Department actually treated both contractors the same; the outcome of that treatment was different only because Southern Photo's price quotes for large orders of color negative standard roll film not specifically listed under "Product Groups" were much lower than the Petitioner's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the Petitioner's bid protest and awarding the contract under ITB 052-98 to Southern Photo Supply. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Barbara Hobbs, Esquire Cummings, Hobbs and Wallace, P.A. 1020 East Lafayette Street, Room 205 Tallahassee, Florida 32301 Judson M. Chapman, Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issues in this case are whether Respondent violated Subsections 458.331(1)(m), 458.331(1)(t), and 458.331(1)(u), Florida Statutes (1997),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of medicine pursuant to Section 20.43, and Chapters 456 and 458, Florida Statutes (2006). At all times material to this proceeding, Dr. Geller was a licensed physician within the State of Florida, having been issued license number 35800 on December 18, 1979. Dr. Geller is board-certified in Ophthalmology. Patient P.K. first presented to Dr. Geller's office on February 17, 1998, for evaluation for refractive surgery. At the time of her first visit, P.K. was 56 years old. She had been experiencing difficulty tolerating contact lenses due to dry eyes, seasonal allergies, and some night vision problems, and did not want to wear glasses. Prior to P.K.'s first visit to Dr. Geller, P.K. had been evaluated by Dr. Jonathan Frantz to determine if she was a good candidate for laser refractive surgery. Dr. Frantz informed P.K. that she was not a candidate for laser refractive surgery. Dr. Geller examined P.K.'s eyes on February 17, 1998, at which time he recorded P.K.'s visual acuity with corrective lenses for both eyes. He did not record her uncorrected visual acuity. The evidence did not establish that the failure to determine and record P.K.'s uncorrected visual acuity prior to surgery was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. During the examination on February 17, 1998, Dr. Geller determined P.K.'s anterior chamber depth to be 2.78 by using an optical device and 2.76 - 2.8 by using a sonogram. Dr. Herbert Gould testified as an expert witness for Dr. Geller. It was Dr. Gould's opinion that at least 2.8 millimeters of depth was needed in the anterior chamber for the insertion of a phakic lens. Dr. Osama Omar testified as an expert for the Department. Dr. Omar was of the opinion that an anterior chamber depth of three millimeters was needed for the insertion of a phakic intraocular lens; however, Dr. Omar's opinion was based on a course that he had taken involving an Artisan lens, not a Phakic 6 intraocular lens, which was used in P.K.'s surgery. Dr. Gould's testimony concerning the anterior chamber depth needed for the insertion of a phakic lens is more credible. Dr. Geller measured P.K.'s preoperative endothelial cell count for both eyes by specular microscopy. The reading was more than 2400. Based on his examination of February 17, 1998, Dr. Geller diagnosed P.K. with hyperopia (farsightedness) in both eyes. Dr. Geller told P.K. that he could implant a phakic intraocular lens in each eye that could correct the refractive errors. When a phakic intraocular lens is used, the patient's natural, crystalline lens is left in place, and the intraocular lens is placed either right in front of the iris or in the pupil area plane right behind the iris. Dr. Geller discussed the risks and benefits associated with the insertion of a phakic intraocular lens with P.K. and made a notation of the discussion on P.K.'s medical records for February 17, 1998. His notes established that he had discussed over and under correction, fluctuating vision, corneal disease, and future surgery with her. P.K. was scheduled for the insertion of a phakic intraocular lens in her left eye on March 10, 1998, and in her right eye on March 31, 1998. P.K. signed a consent form for each surgery scheduled to be performed. The consent forms provided: INFORMED CONSENT FOR LENS IMPLANTATION CORRECTION OF REFRACTIVE ERRORS Dear Patient, The South Florida Eye Clinic and Dr. Scott L. Geller have prepared this "informed consent" so that you may understand some of the major details of 'permanent contact lens' intraocular lens implantation. This informed consent naturally is limited in scope and we will just address some major issues related to all ophthalmic surgery. Your discussion with Dr. Geller can elaborate on any of these issues and can touch on other considerations that you may have. Implants performed for correction of refractive error (to get you minimal eyeglass correction, or no eyeglass correction at all) have been performed since the early 1950's. However, in the last ten years, they have been widely performed throughout the world especially in Europe and South America. Lens implants for correction of refractive errors are performed by individual doctors in the United States under 'the scope of medical practice.' At this juncture no FDA approved lenses are available. The lenses being used in our practice have been obtained by Dr. Geller for use in our ongoing clinical studies for correction of errors of refraction. Lens implants have been performed by our office during and after cataract surgery for the past 15 years and Dr. Geller has extensive experience in all lens implant operations. The lens implant operation for the correction of refractive error is very similar to the operation performed for correction of aphakia that has been done by ophthalmologist [sic] worldwide for well over 20 years. Lens implant for refractive error however have [sic] only been performed widely for about the past eight years. We can only predict based on our experience with this and similar surgeries that the operation is safe and effective. However we cannot predict the future and we want you to understand this. The problems that can be associated with any kind of intraocular surgery include [sic] intraocular lens implantations are hemorrhage, infection, cataract, glaucoma, and the necessity for future corneal surgery. We will remind you that these are potential problems that can occur with any similar surgery, and are rarely seen during the career of any ophthalmologist. There have been reported optical aberrations rarely after lens implantation surgery, notably glare or a refractive error that is not exactly as predicted. This may necessitate a change of the lens or a revision of the wound. These problems are extremely rare. Dr. Geller wants to assure you that he is totally confident that this procedure is the most effective for you at this time. In studying this procedure under a world renowned ophthalmologist and has seen patients who have had several years or internal contact lens use. If you should have any further questions, please don't hesitate to ask Dr. Geller directly. Dr. Geller told P.K. that he had done many lens implants. Dr. Geller's assistant also told P.K. that Dr. Geller had been doing lens implants for a long time with good results. Based on the representations from Dr. Geller and his assistant and the information contained in the consent form, P.K. understandably was left with the impression that Dr. Geller had been doing the implantations of Phakic 6 intraocular lenses in his office on a regular basis and that he had done many of the implantations without problems. On March 10, 1998, when Dr. Geller performed the scheduled lens implantation surgery on P.K.'s left eye, he noted her corrected visual acuity, but did not record her uncorrected visual acuity. During the surgery, Dr. Geller inserted a Phakic 6 intraocular lens manufactured by Ophthalmic Innovations into P.K.'s left eye. On March 31, 1998, P.K. presented at Dr. Geller's office for lens implantation in her right eye. Prior to the surgery, Dr. Geller checked the uncorrected visual acuity of P.K.'s right eye, which was 20/150. During the surgery, Dr. Geller inserted a Phakic 6 intraocular lens manufactured by Ophthalmic Innovations into P.K.'s right eye. In March of 1998, the lenses which were inserted in P.K.'s eyes were not approved by the Food and Drug Administration (FDA). The Phakic 6 intraocular lens had been approved for use in Canada and some countries in Europe, Asia, and South America. At the time of P.K.'s surgery, the phakic lenses were not available through standard, mainstream commercial sources within the United States. Dr. Omar opined that the use of a lens which has not been approved by the FDA falls below the standard of care which should be used by a reasonably prudent similar physician. Dr. Herbert Gould and Dr. James Rowsey, who also testified as expert witness for Dr. Geller, opined that the use of a lens which has not been approved by the FDA, by itself, does not equate to a failure to practice with that level of care, skill, and treatment, which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The testimony of Drs. Gould and Rowsey are more credible. It should be noted that the FDA did not ban the use of the Phakic 6 lens, but that the lens had not been investigated and approved by the FDA. There have been other products which have not been approved by the FDA, but which physicians use without falling below the standard of care required of the physicians. One such product is glue which was used by physicians in eye surgery. P.K. returned to Dr. Geller's office for postoperative care in March and April 1998. She was in Canada during the summer of 1998 and did not see Dr. Geller from April to October 1998. On October 15, 1998, P.K. presented to Dr. Geller complaining of sensitivity to light and poor visual acuity. Dr. Geller diagnosed P.K. as having iritis. On October 21, 1998, Dr. Geller indicated in P.K.'s medical notes to "get spec micros ou," which indicates a specular microscopy for both eyes. Such a test would indicate P.K.'s endothelial cell count. Dr. Geller's notes indicate a similar entry on November 2, 1998. Dr. Geller's medical notes for P.K.'s visit on November 17, 1998, indicate "spec done ou," but reveal a pachymetry reading of 56/48 and do not indicate an endothelial cell count. Pachymetry is a test which is used to determine the health of a cornea by measuring the thickness of the cornea. The specular microscopy measures the endothelial cell density of the cornea. The testimony of Dr. Omar is credited that a postoperative specular microscopy was required to be done in order to compare the preoperative and postoperative endothelial cell counts. On November 17, 1998, Dr. Geller identified a corneal edema in P.K.'s right eye. He did not refer P.K. to a corneal specialist. Dr. Geller had experience in treating corneal problems, including performing corneal transplants. His experience and training was sufficient to treat P.K.'s corneal edema without having to refer her to a corneal specialist. Dr. Geller treated the edema with anti-inflammatory drugs. The edema continued to be present on subsequent visits on December 1, 3, and 9, 1998. On December 9, 1998, Dr. Geller recommended the removal of the phakic intraocular lens from P.K.'s right eye. He removed the lens on December 15, 1998. Dr. Geller provided postoperative care for P.K. through March 1999. P.K. did not return to see Dr. Geller after March 1999. P.K. returned to Canada and in June 1999 saw Dr. Peter J. Agapitos, who diagnosed her with corneal edema in both eyes and recommended that P.K. return to Florida to have Dr. Geller remove the intraocular lens in the left eye. On June 21, 1999, P.K. called Dr. Geller's office complaining that her left eye was very sensitive to light, crusty, and irritated. Dr. Geller's office referred P.K. to a physician in Canada. P.K. had the intraocular lens in her left eye removed. Additionally, she has required cataract surgery and more than one corneal transplant since Dr. Geller performed the phakic intraocular lens implantations. Dr. Omar was of the opinion that the implantation of a phakic intraocular lens to treat refractive error was experimental in 1998. He defined "experimental" as "a treatment that's currently untested, not developed to the point which can be offered in a mainstream fashion, has not demonstrated safety, ethicacy [sic] in the correction of the problem that the patient may need." Drs. Gould and Rowsey did not feel that the procedure was experimental by 1998. Dr. Rowsey did opine that the procedure was "uncommon" in the United States. Physicians in Europe, Asia, and South America were doing phakic intraocular implants during the 1980's. By 1998, there were peer reviewed literature published concerning phakic intraocular implants and a considerable amount of presentations given concerning the use of phakic intraocular lenses. The production of the Phakic 6 intraocular lens began in 1992, and by the time of P.K.'s surgery, approximately 4,000 to 5,000 implants of the Phakic 6 intraocular lens had been done successfully worldwide. However, few physicians in the United States were performing phakic intraocular lens implantations by 1998, and only a couple of dozen phakic intraocular lens implants had been done in the United States by 1998, representing less than one percent of the total intraocular lens implantations. In 1998, there was no doctor in the United States who was routinely implanting these lenses except as part of a study. In 1997, Dr. Geller went to New York City to the surgery center of Dr. Miles Galin, who was performing implantations of phakic intraocular lenses. Dr. Geller observed several preoperative and postoperative cases on the day he visited Dr. Galin. Dr. Geller also "scrubbed in" and observed at least one implantation being performed by Dr. Galin. Prior to performing surgery on P.K., Dr. Geller had performed less than five implantations of phakic intraocular lenses and had reviewed literature in American and European journals concerning phakic intraocular lenses. The procedures and skills used to insert an intraocular lens implant are substantially similar to those procedures and skills necessary to place an anterior chamber lens after a cataract removal. Dr. Geller's practice involves anterior segment surgery, including cataract surgery. The evidence established that Dr. Geller had adequate education and training to be able to insert phakic intraocular lenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Geller violated Subsections 458.331(1)(m), 458.331(1)(t) and 458.331(1)(u), Florida Statutes; imposing a reprimand; imposing an administrative fine of $1,000 for each violation for a total of $3,000; placing Dr. Geller on probation for one year on the terms to be set by the Board of Medicine; and requiring Dr. Geller to attend continuing medical education courses to be specified by the Board of Medicine. DONE AND ENTERED this 2nd day of November, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd of November, 2006.
The Issue The issues presented herein are: (1) whether or not the Respondent, Kenneth T. Risco, D.D.S., permitted an unlicensed dental employee (Wilbert E. Bolyea) to examine and diagnose the mouth of Dr. Erwin Ochs for treatment or treatment planning in violation of Chapters 466.024(4)(b) and 455.026(1)(c), Florida Statutes (1979); whether Respondent, thereby aided, assisted, procured or advised an unlicensed person to practice dentistry or dental hygiene contrary to Chapter 466.028(1)(g), Florida Statutes (1979); whether Respondent knowingly permitted Bolyea to take an impression for the purpose of fabricating an intra- oral restoration, to wit: upper and lower dentures, in violation Chapter 466.024(1)(a) and (c), Florida Statutes (1979); whether Respondent thereby delegated professional responsibilities to a person with knowledge or reason to know that such person did not qualify by licensure to perform such tasks in violation of Section 466.028(1)(aa), Florida Statutes (1979); whether Respondent permitted Bolyea to engage in the examination, diagnosis and treatment planning of conditions within the human oral cavity audits adjacent tissues in conjunction with the supplying of dentures to patients in Respondent's office in violation of Chapter 466.026(1)(c), Florida Statutes (1979), and thereby knowingly employed a person to perform duties outside the scope allowed such persons in violation of Chapter 466.024(4)(b), Florida Statutes (1979).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By its eight (8) count Administrative Complaint filed herein on November 6, 1980, the Petitioner seeks to revoke, suspend or take disciplinary action against Respondent as a licensee and his license as a dentist under the laws of Florida. Respondent, Kenneth T. Risco, is a licensed dentist having been issued license No. DN6971, since approximately August of 1975. On approximately January 7, 1980, Respondent because professional associated with Wilbert Bolyea (Bolyea) whom he employed as an expanded duty assistant. In summary fashion, the complaint allegations are that Respondent, during the period January 7 through 18, 1980, permitted Bolyea, his expanded duty assistant, to engage in the examination, diagnosis, treatment planning and the taking of impressions for the purpose of fabricating prosthetic dentures and the adjusting of such dentures in violation of Chapter 466, Florida Statutes (1979). Petitioner's proof herein consists of testimony adduced from a deposition of Respondent taken on January 18, 1980, in Collier County Circuit Court, Case No.79-1029 captioned Bolyea v. Wittenberg; Dr. Erwin Ochs, who is now deceased, testimony was received as an unavailable declarant pursuant to Chapter 90-803(18), Florida Statutes; and testimony taken during the hearing herein on February 24, 1981, in Naples, Florida. Ruppert Bliss, a licensed dentist and a member of Petitioner's Board, has been practicing dentistry since approximately 1956. Dr. Bliss is a member of several professional associations and expressed familiarity with the terms of art peculiar to the dental profession. Dr. Bliss was received as an expert in prosthetic dentistry in this proceeding. According to Dr. Bliss, the treatment and diagnosis of a patient with dental problems should proceed as follows. First, the patient is examined by a visual inspection of the patient's pathological signs. A working relationship is then developed with the patient and a study model is made to follow and coordinate subsequent diagnostic procedures. This includes a study of a patient's tissue contours which aids in making a model to trace registrations and to effect proper adjustments which affect a patient's ability to bite. Throughout the procedure, the patient is constantly examined and a final adjustment is made to ensure that the dentures, as constructed and fitted, enable the patient to bite properly and that the bone and tissue conditions are not adversely affected. Dr. Bliss described the difference between the terms of art in the dental profession known as a "remediable" versus nd "irremediable" task. A "remediable" task is one that can be reversed whereas an "irremediable' task can not be reversed. Dr. Bliss included in the list of irremediable tasks, the adjustment of prosthetic appliances since they affect a patient's bite; may worsen bone or tissue conditions and also impacts on a patient's mannerisms. The diagnosis of a denture problem and its adjustment is an irremediable task. (Tr. 41) Respondent's Defense Dr. Riso is a 1975 graduate of the University of Pennsylvania. Upon graduation, he became licensed to practice in the states of Florida, New Jersey and Pennsylvania. Respondent's spouse, Dr. Rebecca Weber, is also a dentist licensed to practice in Florida and practices jointly with Respondent. Respondent, during the instant hearing on February 24, 1981, denied permitting Bolyea or any unlicensed person employed by him to practice dentistry or to examine patients without any supervision by him. Respondent became professionally associated with Bolyea on January 7, 1980, as an expanded duty assistant. In keeping with this employment relationship, Respondent and Bolyea entered into an employment agreement which delineated the procedures under which Bolyea was authorized to carry out his employment functions. (See Respondent's Exhibit No. 1) According to Respondent, he first learned of the services performed for Dr. Ochs by Bolyea, at the contempt hearing on January 21, 1980. Pursuant to the employment agreement, Bolyea was authorized to greet patients; take patients' dental history; determine the need for dentures and report back to Respondent. (Tr. pp. 53 and 67) Respondent therefore claims that he was unaware of any dental adjustments by Bolyea during times material to the allegations herein. (Se Respondent's Exhibit No. 1 and Tr. p 69) When Dr. Ochs visited Respondent's office for treatment on January 11, 1980, the employment relationship in effect between Respondent and Bolyea had been effective approximately two days. Dr. Ochs was not seen or examined by Respondent. On January 11, 1980, Dr. Ochs, a former dentist for approximately 35 years, visited Respondent's denture clinic in Naples for an examination and, if necessary, to have dentures made. After being greeted by an office assistant, Bolyea began talking to Ochs about the price and quality or dentures. At the outset of the examination by Bolyea, Ochs explained that he only needed an upper denture made since his lower denture was all right. Bolyea donned a pair of rubber gloves; removed Ochs' upper denture and placed it on a try. Bolyea then examined Ochs' mouth; massaged his lower gum with his finger; remarked that his ridge was very flat and had been pounded to almost nothing. (Petitioner's Exhibit 7, pp 3 and 4) After a mirrored view of Ochs' oral cavity while in the protruding position, Bolyea remarked that "there is contact anteriorly and posteriorly, but in the space between there, you have quite a space. That is why you are pounding your ridge to pieces, because your bite is not right." Bolyea advised Ochs that he could not help him with only a lower denture and that his only solution was to construct a complete set of dentures to correct his bite. Thereafter, Bolyea took a wax bite of Ochs' mouth. According to Respondent, the study model is made by Bolyea after a patient is initially screened. Thereafter, examines the model and a custom tray is made from which a final impression is made by Respondent. Respondent physically delivers the appliance after the third appointment. At some point during the course of fabricating the dentures, Respondent examines the patient. This occurred, in the usual case, during the second or third visit. Respondent's testimony during the contempt hearing held on January 21, 1980, is as follows. Patients desiring dentures were required to make three visits and at some point during the diagnostic procedures of the patient (by Bolyea), Respondent diagnosed and examined the patient. Respondent considered that Bolyea's actions in feeling dr. Ochs' gums and advising him as to the condition of the ridges included the corrective measures he would employ to correct his bite were "physical observations" rather than an examination and diagnosis. Respondent authorized Bolyea to make those determinations. (Petitioner's Exhibit 6 at p 48) Respondent did not check to determine the corrections of Bolyea's judgment as to the necessity for a new set of dentures. (Petitioner's Exhibit 6 at p 48) Respondent also stated that a patient was free to, and in fact would, return to his office if he was dissatisfied with the dentures (as fitted or adjusted by Bolyea). However, Respondent agreed that an improperly adjusted denture could result in irreversible harm to the muscles and soft tissues of the mouth. In this regard, Respondent's and Ms. Chesser's testimony during the hearing, to the effect that he (Respondent) was unaware of Respondent making adjustments to patients' dentures is contrary to Respondent's testimony on January 21, 1980. Respondent's sworn statements, when he was not under the pressure of disciplinary sanction by the Petitioner is considered more credible than the subsequent testimony herein when the threat of disciplinary action existed. To the extent that his testimony herein differs from the version offered by him during the prior proceedings, the more recent testimony is rejected. Likewise, Ms. Chesser's testimony to the effect that Respondent was unaware of Bolyea's actions relative to the adjustments of dentures is contrary to Respondent's testimony on January 21, 1980, and is also rejected. Joyce Chesser was employed by Messr. Dolyea from approximately July 1979, through March of 1980. She was hired as an assistant and officer manager. Based on Bolyea's procedures, dentures were completed during a span of not less than four weeks subsequent to a patient's first visit. Bolyea made adjustments to patients' dentures without Respondent's knowledge, permission or authorization (Tr. 76 thru 82). Bolyea also examined patients and went behind Respondent's back to adjust dentures which were already prepared prior to any employment relationship with Respondent. 2/ Respondent's wife, Dr. Rebecca Weber, was also familiar with the employment relationship between Respondent and Bolyea. Dr. Weber denied that Respondent permitted Bolyea to examine or otherwise diagnose patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Petitioner, Board of dentistry, enter a final order herein finding the Respondent guilty of the allegations set forth in Counts 1 through 8 of the Administrative Complaint filed herein and suspending the Respondent's license to practice dentistry in the State of Florida for a period of six (6) months. RECOMMENDED this 1st day of May 1981, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May 1981.
The Issue Whether the changes to the Department's Invitation to Bid (Rebid II) suggested by Polaroid and/or NBS should be made? GENERAL. The Parties. The Department is the state agency charged with, among other things, the responsibility to adopt and implement a program for the production of color photographic drivers' licenses for the State of Florida, pursuant to Chapter 322, Florida Statutes. Polaroid and NBS are the two major suppliers of equipment and materials used in the majority of states to produce color photographic drivers' licenses. Both serve approximately 50 percent of the States. NBS is the current supplier of color photographic drivers' licenses in the State of Florida. Definitions. Florida's color photographic drivers' license is essentially a picture of the driver and a data card containing pertinent information about the driver. A camera takes a picture of the driver and the data card simultaneously. The picture is developed in a relatively short period of time and the resulting picture is laminated with a clear plastic. The size of the portion of the driver photographed and the data card are reduced, obviously, when the picture is taken. The terms reduction factor refer to the size of the resulting license compared to the original data card. For example, a requirement that the license not have a reduction factor of greater than 40 percent means that the resulting size of the picture of the data card photographed must be a least 60 percent of its original size. The resulting picture of the driver and the data card is referred to as the core. The core consists of a picture of the driver's face, neck and shoulders, the data card and a "header bar" which is the area above the data card containing "Florida Driver License" on the currently used drivers' license in Florida. The core may be fully laminated with clear plastic. If so, the laminate may be sealed in two ways: "flush-cut" or "lip-seal." If the lamination goes just to the edges of the core, this is referred to as a flush- cut design. If the laminate goes beyond the edges of the core and the front and back lamination is sealed together, this is referred to as a lip-seal design. The type of film used generally is referred to as either "paper-based film" or "plastic or polyester-based film." If the core consist of paper-based film the core will consist of a layer of plastic on the front and back and a paper center. If the core consist of plastic-based film the core will be all plastic. An ultraviolet or black-light security feature means that letters or an image of some kind can be seen with the naked eye only under an ultraviolet or black-light. HISTORY OF FLORIDA'S COLOR PHOTOGRAPHIC DRIVERS' LICENSE. The Initial Contract. Color photographic drivers' licenses (hereinafter referred to as "License" or "Licenses"), have been used in the State of Florida since December 3, 1973. The initial contract entered into by the Department for the provision of Licenses (hereinafter referred to as the "Initial Contract") was with DEK Processes Division of Scott & Fetzer Company. The DEK Processes Division of Scott & Fetzer Company was acquired by NBS in March of 1985. The Initial Contract was entered into for the period 1973 to 1977. The Licenses produced pursuant to the Initial Contract were laminated with a lip seal, measured 3-3/8" x 2-1/8", had a paper-based film core which measured 2-3/4" x 1-3/4" and cost the State 37.98 cents per License. The Initial Contract was renewed in 1977. The renewed contract was valid through 1981 and provided for Licenses which measured 3-3/8" x 2-1/8", flush-cut sealed lamination, a polyester-based film core and cost the State 36.725 cents per License. By using a flush-cut seal, the size of the film core increased to the same size as the License. This increase in size was instituted because of negative reactions to the legibility of the Licenses produced under the Initial Contract raised by law enforcement, merchants and the public. The 1982 Contract. In 1981 the Department solicited bids for a new four-year contract with a four-year extension option (increasing the length of the contract to June 30, 1990). The 1981 Invitation to Bid allowed a large or small license and the use of a paper-based or plastic-based film core. Both Polaroid and NBS submitted bids on the 1981 Invitation to Bid. NBS was awarded the contract, which it entered into with the Department on February 22, 1982 (hereinafter referred to as the "1982 Contract"). The 1982 Contract contained the following relevant provisions: The initial term of the contract was through June 30, 1986; Licenses were to be lip-sealed; The Licenses were to measure not less than 2-3/4" wide and 1-3/4" high and not more than 3-3/8" x 2-1/4" before lamination; A paper-based film core measuring 2-3/9" x 2-3/4"; The price per License to the State during the first four years was to be 42.9 cents; The price per License to the State during any extension was to be 42.9 cents plus or minus the increase or decrease in the cost of material; and The contract could be extended for an additional four years through June 30, 1990. The laminate had to be bonded to the License in such a way that it would be impossible to remove the laminate without destroying the License; and The License had to have an ultraviolet or "black- light" security feature. The current Florida License is produced pursuant to an extension of the 1982 Contract. The First Invitation to Bid - 1985. In June of 1985 the Department decided to issue an invitation to bid seeking to let a new License contract rather than exercising the option to renew the 1982 Contract. This decision was made because of a desire to improve the legibility, security and durability of the currently produced License. In June, 1985, Major Clay W. Keith, former Director of the Department's Division of Drivers' Licenses, proposed the appointment of a task force to study the License in use in 1985 under the 1982 Contract and possible improvements thereto. Major Keith proposed the task force in anticipation of the June, 1986, expiration of the initial four-year term of the 1982 Contract. Three major concerns were raised by the Department with regard to any License the State issued: legibility, durability and security. The Department had received complaints from law enforcement and merchants concerning eligibility of the existing License and previous Licenses. The Department had also received complaints concerning the ability to counterfeit or alter the existing License and previous Licenses. The Department had also had problems with the durability of previous Licenses. Additionally, current law allows renewal of Licenses for six year terms and up to eight or ten years in some cases. On July 3, 1985, Major Keith advised Mr. Leonard R. Mellon, the Director of the Department, and Mr. Fred Dickinson, Deputy Director of the Department, by memorandum that a task force of persons with the expertise believed to be needed to study the existing License was being formed to decide what type of License to use in the future. 0n July 10, 1985, Mr. Mellon wrote a note to Major Keith indicating the following: I do not want a task force established for this purpose. Please see me as soon as possible to discuss this matter. Major Keith, as directed, saw Mr. Mellon. Mr. Mellon gave Major Keith a sample License and told Major Keith that the sample License was what the Department wanted. The sample License was an all-plastic License, similar in design and thickness to a credit card. It had embossed letters, like a credit card, of certain information. Mr. Mellon explained that the sample License would meet the Department's desire to provide a License which was durable, legible and secure. Mr. Mellon obtained the sample License he gave to Major Keith from representatives of NBS, including Barry Horenbein, during a demonstration of identification cards made by DEK sometime during 1985. The 1985 demonstration was attended by Mr. Mellon, Mr. Horenbein, Mr. Vince Toffany, Mr. Carlos Urrutia and Mr. Bobby Bowick. Mr. Toffany, Mr. Urrutia and Mr. Bowick are representatives of NBS. Mr. Horenbein is the legislative liaison of NBS in Florida and has been a close personal friend of Mr. Mellon for over 27 years. The Department ultimately learned that the sample License given to Major Keith by Mr. Mellon could not be produced in the manner that Licenses are produced in Florida. The sample License was produced in a laboratory-type setting and it would be too costly to produce "over the counter" as Licenses are produced in Florida. In the Fall of 1985 the Department issued an invitation to bid instead of renewing the 1982 Contract with NBS and decided not to attempt to produce a License identical to the sample License given to Major Keith by Mr. Mellon. The Department decided to issue an invitation to bid in order to obtained a more legible, durable and secure License. The Department issued an Invitation to Bid on November 27, 1985 (hereinafter referred to as the "First ITB"). Among the specifications contained in the First ITB, were the following: The film core of the License was to be a plastic-based film core; Lamination: flush-cut seal; The License was to measure 3-3/8" x 2-1/8"; and An ultraviolet security system. No requirement as to the maximum reduction factor was contained in the First ITB. At the time the First ITB was issued, Polaroid did not yet have plastic-based film. The Department was not aware of this fact at the time. NBS did have plastic-based film. Based upon information provided to the Department by Polaroid representative, the Department believed that Polaroid could provide a plastic-based film. In fact, Christ Rousseff, an employee of Polaroid, sent a letter dated August 2, 1985, to Mr. Mellon informing him that Polaroid could provide an all plastic-based License. Polaroid and NBS submitted bids in response to the First ITB in January, 1986. Polaroid's bid cost per License was 49.9 cents and NBS's bid cost per License was 56.6 cents. On January 27, 1986 the first bid tabulations indicated that Polaroid's bid was non-responsive as a result of Department of Agriculture testing of the License bid by Polaroid. Polaroid had used a paper-based film core which was revealed in the testing and was contrary to the specifications of the First ITB. NBS's bid to the First ITB was also rejected because the Department of General Services determined that there had not been two responsive bids submitted. The rejection of bids on the First ITB became final agency action. The Department began to prepare a new invitation to bid. On March 6, 1986, Polaroid, at the request of the Department, conducted a demonstration of the type of License it could provide to the Department. Polaroid demonstrated a fully-laminated, lip-sealed, paper-based film core License. The demonstration was attended by Major Keith, Mr. James W. McInnis and other employees of the Department. Mr. Mellon spent about 5 minutes at the demonstration. On March 12, 1986, Major Keith sent a memorandum to Mr. Mellon through Mr. Dickinson concerning the Polaroid demonstration. The Memorandum indicated that Division of Drivers' License personnel agreed that Polaroid had demonstrated the ability to provide an acceptable License. Extension of the 1982 Contract. On March 23 1986, a Sunday, Mr. Mellon and Mr. Dickinson spent the afternoon at the home of Mr. Horenbein. Present were Mr. Horenbein, Mr. Toffany and Mr. Bowick, all of whom represented NBS. A buffet dinner was served. Discussions occurred on this date concerning the price which would be charged for Licenses and whether additional cameras could be provided if the 1982 contract was extended for an additional four years pursuant to the renewal option contained in the 1982 Contract. Mr. Mellon, on behalf of the Department, and the representatives of NBS agreed at the Sunday dinner that the 1982 Contract would be extended. Agreement was reached on a price per License to be paid and on the provision of additional cameras. Other discussions had taken place concerning whether to extend the 1982 Contract. On Monday, March 24, 1986, Mr. Dickinson met with Department personnel and informed them that the 1982 Contract would be extended. A Renewal of Color Photographic Driver License Agreement was prepared. This agreement provided that the price per License for the extended term would be a set price of 42.9 cents instead of the 42.9 cents per License adjusted for any increase or decrease in the cost of sensitized photographic materials and laminates as specified in the 1982 Contract. The renewal also provided that NBS would provide additional camera equipment. The Department executed and tendered to the Department of General Services its proposed exercise of the option to renew the 1982 Contract. This action by the Department extended the 1982 Contract through June, 1990. Major Keith was not aware of the renewal until after the renewed agreement had been executed. At the time the Department exercised its option to extend the 1982 Contract, the Department only had one week left in which to exercise its option. The option to renew had to be exercised at least ninety days prior to the expiration of the initial term of the 1982 Contract. Because of the lack of time remaining during which the Department could exercise its option, Mr. Mellon decided that renewing the 1982 Contract was in the best interest of the Department. The Department was able to obtain a License at no substantial increase in cost for an additional four years. Following the execution of the renewal of the 1982 Contract, Polaroid filed two Notices of Protest which were filed with the Division of Administrative Hearings by the Department. The Protests were assigned case numbers 86-1337 and 86-1372. On May 6, 1986, Polaroid, the Department and NBS entered into an agreement settling the dispute in case numbers 86-1337 and 86-1372. Pursuant to the settlement agreement, NBS agreed to continue providing Licenses at a cost of 49.58 cents per License. The term of the renewal was shortened to expire on August 31, 1987 and the parties agreed that there would be no further extensions of the 1982 Contract agreed upon without the approval of the Governor and the Cabinet. Finally, the parties agreed that a new invitation to bid would be issued to obtain a provider of Licenses beginning September 1, 1987. The Governor and Cabinet approved the settlement in May of 1986. The settlement became final agency action. Licenses currently being produced in Florida pursuant to the renewal agreement approved by the Governors and the Cabinet contain a core slightly smaller than 1-3/4" x 2-3/4", are enclosed in lip-sealed lamination and use ultraviolet security markings on the back of the Licenses. The data card reduction factor is 42 percent. Rebid I. On June 6, 1986, the Department issued a Request for Information in an effort to preclude the development of noncompetitive specifications for future invitations to bid. In response to this request, Polaroid informed the Department that it could not provide an all-plastic License and NBS indicated that it could. On July 22, 1986, Mr. McInnis circulated the first draft of the specifications for the next invitation to bid to Department personnel. It specified a License with full lamination, lip-seal and a plastic-based or paper- based film core. The draft provided that the core of the License was to measure 3-1/8" x 1-7/8" prior to lamination. Ultraviolet light security markings were also required. For the first time, the draft of the specifications included a reduction factor requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall not be less than 60 percent of the size of the photographed document. Section 4.8.1 of the draft invitation to rebid. This provision was included partially because of the responses to the Request for Information submitted to the Department by Polaroid and NBS. Major Keith was told by Mr. Dickinson that "the front office" wanted Rebid I to require a plastic-based film core. Major Keith understood the "front office" to mean Mr. Mellon. In developing the next invitation to bid, the Department determined that enhanced security was a critical concern that needed to be addressed. At least in part, the Department's concern for security was based upon questions raised about security from the Governor's office, the Cabinet and law enforcement. The Department attempted to determine what security features were available. The Department received sales and promotional brochures for various security products from Polaroid, 3M and Armstrong World Industries, Inc. Polaroid, NBS and 3M were all invited to demonstrate their security features to the Department and they made presentations. Polaroid demonstrated "Polasecure" and 3M demonstrated "Confirm." These products and Armstrong's "Armstrong Advantage" are security markings contained in laminating materials which change appearance when the viewing angle of a License changes. Polaroid and NBS made their presentations to the Department, at the Department's request, in September of 1986. The primary emphasis of the demonstrations was security. On October 3, 1986, the Department issued Invitation to Bid (Rebid I) (hereinafter referred to a "Rebid I"). In Rebid I, the Department included the same overall size requirement (3-3/8" x 2-1/8") included in the First ITB. The requirement that the film core be plastic (polyester, polycarbonate or an equivalent plastic) included in the First ITB was also included in Rebid I. The Department changed the seal specified in Rebid I to a lip-seal, added a requirement that the reduction factor should not exceed 40 percent and required a new security feature. Because lip-seal was specified, the Department also provided that the core of the License should measure 3-1/8" x 1-7/8." Rebid I also included the following security requirement which was not included in the First ITB: The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. Section 4.8.3. of Rebid I. The new security feature specified in Rebid I provided for the following: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core ... The security marking feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security marking must be easily discernible with the naked eye, requiring no auxiliary reading devises for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. [Emphasis added]. Section 4.8.4 of Rebid I. Although the Department did not intend to provide any competitive advantage to Polaroid in specifying the security feature of Section 4.8.4 of Rebid I, NBS informed the Department that the description of the security feature underlined in finding of fact 65 was a generic description of "Polasecure." In fact, the language used came out of a speech given by a Mr. DeKeiver at a conference held in Washington D.C. Although Mr. DeKeiver apparently had no connection with Polaroid, the copy of the speech relied upon in drafting Section 4.8.4 of Rebid I was provided to the Department by Mr. Weer, a Polaroid representative. Rebid I provided that potential bidders could submit written changes to the specifications recommended by a potential bidder. In a letter dated October 16, 1986, NBS recommended that "the state require a specific security feature or security product... " other than Polasecure which would be available to both Polaroid and NBS. NBS also recommended that Section 4.8.3 of Rebid I be changed to require a full-cut seal instead of a lip-seal. Polaroid, in a letter dated October 16, 1986, recommended that paper- based film be allowed. On October 21, 1986, the Department rejected Polaroid's recommended change to allow paper-based film and NBS's recommendation to require a full-cut seal. The Department, because of its concern that Section 4.8.4 of Rebid I contained a description of Polasecure, accepted, in part, NBS's recommendation concerning the security feature. The Department changed the security requirement to provide that "Armstrong Advantage or Polaroid Polasecure or department approved equivalent pre-applied security markings ... " be affixed to the inside of the laminate. The Department made this change in an effort to eliminate any competitive advantage to potential bidders. Polaroid and NBS both submitted bids in response to Rebid I. On December 10, 1986, the Department's committee which evaluated the bids submitted in response to Rebid I reviewed the results of tests conducted on the License bid by Polaroid and NBS. NBS's bid was rejected because its License failed to disintegrate, as required by Rebid I, when the laminate was separated from the core. The committee therefore rejected NBS's bid without considering the price it had bid. Although NBS had recommended that the Department specify Armstrong Advantage as a security feature, this security feature was incompatible with the requirement that the photographic image be destroyed upon removal of the laminate. NBS was aware of this and so informed the Department. NBS did not timely inform the Department, however. NBS's proposed License failed to satisfy the test performed on the License because of this incompatibility. Polaroid's bid met the specifications of Rebid I and, upon opening the cost proposals, it was determined that Polaroid's bid price was 71.804 cents per License. On December 10, 1986, the evaluation committee prepared a memorandum in which it indicated that the Polaroid bid should be accepted. Major Keith approved the recommendation and sent the recommendation to Mr. Dickinson. Mr. Dickinson also recommended approval of Polaroid's bid and sent the recommendation on to Mr. Mellon. Mr. Mellon rejected Polaroid's bid because the Department had only budgeted 60.9 cents per License and Polaroid's bid of 71.804 cents was too far in excess of the budgeted amount. The amount budgeted by the Department was based in part on Polaroid's bid in the State of Ohio in September of 1986. Polaroid had bid 55.9 cents per license in Ohio. The Department arrived at 60.9 cents per License by adding approximately 5 cents to the amount bid in Ohio for the additional requirement contained in Rebid I of Polasecure. The product bid in Ohio was not, however, sufficiently similar to the License being sought by the Department to arrive at a budgeted amount for the Florida License. Ohio, unlike Florida, was not seeking a License with full lamination. Therefore, Ohio did not include the cost of laminating equipment, laminating materials or die cutters. There were other differences in Ohio's program which affected the cost bid by Polaroid in Ohio. The Department was not aware of the differences with the License bid in Ohio and the License the Department was seeking in Rebid I. The Department posted its tabulation on December 16, 1986. The Department indicated its decision to reject Polaroid's bid because "cost exceeds budget request." The Department's action with regard to Rebid I is final agency action. Rebid II. In January, 1987, the Department began drafting specifications for the next invitation to bid. Mr. McInnis was one of the primary technical drafters of the invitation to bid. Under the normal "chain-of-command" in the Department, Mr. McInnis received his instructions through or from Major Keith. In early January of 1986, Mr. McInnis was given a note on Mr. Dickinson's note paper by Mr. McCaskill containing the following: Plastic Size Security - Negotiable Maintenance/Serviceability Number of Cameras Mr. McCaskill explained to Mr. McInnis that the first two items, plastic and size, were not negotiable and that the 16 other items were to be studied further. Mr. McCaskill explained that the next invitation to bid was to provide for a License with a plastic- based film core and was to be the same size as in Rebid I, 3-1/8" x 1-7/8". The note from Mr. Dickinson was not received through Major Keith, which was the normal way that Mr. McInnis received instructions from Mr. Dickinson. Mr. McInnis prepared draft specifications and showed them to Major Keith along with the note from Mr. Dickinson. Major Keith instructed Mr. McInnis to submit the revised specifications back to Mr. Dickinson in the chain that he had received the note since Major Keith had not been involved in the instructions Mr. McInnis had received. Mr. Mellon's decision to instruct Mr. McInnis to specify plastic and to stick to the larger size License was made because Mr. Mellon believed that those items would insure a License that was durable, readable and had some security to it. The Department asked for the assistance of the Department of General Services in reviewing the draft of the invitation to bid. The Department of General Services reviewed the draft primarily with regard to the special conditions and not the technical specifications of the draft invitation to bid. On January 27, 1987, the Department issued its third invitation to bid, Invitation to Bid (Rebid II)(hereinafter referred to as "Rebid II"). Rebid II specified that the License was to have a plastic-based film core, lip seal, no more than a 40 percent reduction factor and was to measure 3- 1/8" x 1-7/8". These were the same specifications contained in Rebid I. The security feature contained in Rebid I was replaced with the ultraviolet light requirement of the First ITB. The decision to continue to require plastic-based film core was made by the Department because of Mr. Mellon's belief that it would result in a more durable, readable and secure License. The elimination of the security feature to be contained in the laminate was based upon the Department's desire to obtain a cost bid within the Department's budget. Potential bidders were required to submit any suggested changes to Rebid II in writing. On February 3, 1987, Polaroid timely submitted recommended changes in writing to the Department. The relevant recommended changes included the following: That the requirement of Section 4.8.1 of Rebid II that "photo sensitized polyester, polycarbonate, or an equivalent plastic material be changed to "photo sensitized material Polaroid recommended this change based upon its argument that sealing the photo core in a sealed and bonded polyester laminate would provide the necessary security and durability the Department was seeking and that paper-based film offered substantial cost savings; That the requirement of Section 4.8.1 of Rebid II as to the size of the photo core be changed to allow a range of sizes from 2-3/4" x 1-3/4" to 3-1/8" x 1-7/8". Polaroid recommended this change based upon its argument that the 40 percent maximum reduction factor could be met on a smaller film core and therefore reduce the cost of Licenses; That the ultraviolet light security feature be replaced with a requirement that Polasecure, Armstrong Advantage or equivalent security laminate be provided. Polaroid recommended this change based upon its argument that security would be enhanced at relatively little cost. The recommended changes in the size of the License and the film-core material are similar to the current License specifications. NBS did not submit any written recommended changes to Rebid II. By letter dated February 4, 1987, Secretary of State George Firestone asked Mr. Mellon about the Department's response to the suggested changes from Polaroid and requested an explanation of the specifications of Rebid II. In response to the Secretary of State's inquiry, Mr. Mellon submitted a letter and report to the Secretary of State. In part, Mr. Mellon told the Secretary of State the following: Both Polaroid and NBS have demonstrated their ability to provide a plastic core license. However, NBS informed the Department in a presentation made on September 17, 1986, that it will be unable to obtain paper film after the conclusion of their current contract with the State of Florida (August 31, 1987). They will be unable to bid on any contract for paper-based licenses after that date. In order to provide the State of Florida with the most durable license at the lowest cost, at least two bids providing the same durable core must be considered. Allowing vendors to bid two unlike products, either paper or plastic, would create a situation in which the products could not be objectively evaluated. That type of specification would also give a built-in price advantage to the vendor bidding a paper core, thereby prohibiting a competitive bid for the license, and increasing the price for the State. Mr. Mellon also suggested that the Department's decision to require a large license would make the License more legible and that requiring only an ultraviolet light feature for security was designed to reduce cost. In the draft of the response to the Secretary of State, the Department indicated that Polasecure, Armstrong advantage or similar security laminate would improve security and was preferred by the Department. This language was not contained in the final letter. On February 17, 1987, a meeting was conducted by the Department. It was attended by Mr. Mellon, Mr. Dickinson, Major Keith, Jim Cox and Mr. McCaskill. As a result of this meeting the Department decided to amend the specification contained in Section 4.8.1 of Rebid II pertaining to the film-core of the License. The Department decided to allow a paper-based or plastic-based film core in the hope that the cost bid by the vendors would come within the Department's budgeted amount. Polaroid's other suggested changes were rejected. On February 19, 1987, the Department issued Addenda III to Rebid II. Addenda III amended Rebid II by deleting the requirement that the core be plastic-based film and substituted the requirement that the core be "full color photosensitized material", i.e., paper-based or plastic-based. Addenda III also amended the requirements pertaining to samples. 0n February 20, 1987, Polaroid submitted a Notice of Protest to Rebid II, as amended. NBS submitted a Notice of Protest to Rebid II, as amended, on February 23, 1987. Polaroid and NBS both subsequently timely filed Formal Protests and Requests for Administrative Hearing. THE ALLEGED DEFICIENCIES OF REBID II, AS AMENDED. General Requirements of Rebid II, as Amended. A successful bidder to Rebid II would be required to furnish the Department with camera systems, photographic backdrops, film, laminating materials and equipment, training, support, maintenance and all other equipment and supplies necessary to produce Licenses and identification cards at License issuing offices of the Department throughout Florida. For each License or identification card produced, three film negatives must also be produced. The Department's License examiners will operate the equipment and produce Licenses. Approximately 1,000 examiners will have to be trained and supported. A fixed price for each License actually issued will be paid. Licenses not issued because of equipment problems or defective materials are not paid for by the Department. The driver, data card and header bar are photographed simultaneously and the images are optically combined by the camera system on a single piece of instant photographic film. The film is trimmed to the appropriate size in a "die cutter." The combined image recorded on the film core is simultaneously recorded on color negative roll film. Each negative is imprinted with a number. Two black and white, 16 millimeter roll film negative copies are made. A "rapid retrieval system" including two microfilm reader/printers, to retrieve copies of the negatives must be furnished by the successful bidder. The film core is to be laminated with a 1/8" lip seal. The License is to be the same size as a credit card, 2-1/8" high by 3-3/8" wide. This is the size of Licenses issued in most states. The License must be sufficiently durable to last seven years without deteriorating to the point that its functions are compromised. Printed data on the License should be sufficiently legible for law enforcement officers and others who rely on the License as a form of identification. The License should be secure it should be difficult to alter a License or to product a counterfeit License without the altered or counterfeit License being detectable. The primary goal of the Department in issuing Rebid II, as amended, was to provide a License at a reasonable cost which is legible, durable and secure. Polaroid's and NBS's Challenge to Rebid II, as Amended. Rebid II, as amended, represents the Department's third attempt to let a new contract for the issuance of Licenses. The Department's rejection of the first two attempts, the First ITB and Rebid I, have become final agency action. The extension of the 1982 Contract has also become final agency action. In this proceeding NBS has challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that the film core is to be "full color photo sensitized material." NBS has contended that the film core should be composed of "polyester, polycarbonate or equivalent plastic material." The requirement of Section 4.8.1 of Rebid II that the "document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the date card shall be not less than 60 percent of the size of the photographed document." NBS has contended that a 30 percent reduction factor should be specified. The requirement of Section 4.8.3 of Rebid II that a lip-seal lamination design be used. NBS contends that a flush-cut design should be required. Polaroid challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III that the film core be "3-1/8 inches wide and 1-7/8 inches high prior to lamination." Polaroid contends that a range of sizes should be specified, from 2-7/8 to 3-1/8 inches wide and from 1- 3/4 to 1-7/8 inches high. The requirement of Section 4.8.4 of Rebid II which requires a black-light security feature. Polaroid contends that the Department should specify a security marking applied to the inside of the front laminate which is visible in ordinary light and is alternately visible and invisible as the angle of viewing the License is changed. The requirement of Section 4.10.4 of Rebid II that no applicant be required to wait for a second applicant before the first applicant's License is processed. The parties stipulated that this challenge arose as a result of a misunderstanding of the requirements of Section 4.10.4 of Rebid II. Based upon a clarification of this Section by the Department Polaroid agreed not to pursue this portion of its challenge to Rebid II. At the final hearing, Polaroid and NBS maintained that the Department had evidenced a bias in favor of the other. Film Core; Section 4.8.1 of Rebid II, as Amended by Addendum III. Section 4.8.1 of Rebid II, as amended by Addendum III, provides, in pertinent part: The finished color photo core of the driver license or identification card shall be full color photo sensitized material .... This provision replaces the requirement of Rebid II before amendment that the License be "full color photosensitized polyester, polycarbonate, or an equivalent plastic material Other pertinent provisions of Rebid II which affect the type of film- core material include the following: The Color photographic image must remain stable and survive intact under conditions of strenuous wear and tear and the photographic image must not significantly deteriorate or become illegible during the life of the license (seven years). The Contractor shall bear the cost of materials and supplies for the reissuance of each license or identification card which must be reissued due to failure to meet these requirements. The license or identification card shall be fully laminated, front and back, with a 1/3 inch lip seal. The laminate shall be not less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the side of the laminate. The finished license shall be 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. The finished license shall be not less than .021 inch and not more than .062 inch thick after lamination. The contractor shall be responsible for the supply of laminating equipment, materials, support services (e.g. training) and all other commodities necessary to assure that driver licenses have appropriate protection and security laminates. As a part of their equipment demonstration, bidders shall submit with their bid twenty- five (25) sample licenses and ten (10) sample identification cards for testing and evaluation by the State of Florida. The samples must be identical to the proposed license and identification cards. If the proposed samples submitted for testing do not fulfill the requirements of this ITB, the State may reject the bid solely on this basis. Samples must be submitted at no additional cost to the State and additional quantities specified by the Department for further testing after opening of the bid must be supplied as long as said quantity does not exceed 100. Sample licenses and identification cards will be tested by the Division of Chemistry, Department of Agriculture and Consumer Services of the State of Florida. These tests will include a tear test, an abrasion test, a tensile test, the use of a fadeometer, and a test of the ease of alteration. The tear test must exhibit a strength of at least 100 lbs., while the license must have a tensile strength of at least 250 lbs/in of width. The abrasion resistance must show either no or only a slight dulling of the surface after 300 strokes with a dry nylon brush and there should be no or only slight fading visible with the use of the fadeometer. The provision of Rebid II pertaining to the film-core material used cannot be reviewed in a vacuum. The provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II quoted above have not been challenged by Polaroid or NBS and must be considered when reviewing the film-core material requirement of Rebid II. When the provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II and the film-core requirement of Rebid II, as amended, are taken into account, the Department's goal of providing a legible, secure and durable License should be insured. The effect of Addendum III is to allow potential vendors to bid a License which contains a paper-based or plastic-based film core. NBS has contended that the Department is restricting competition by allowing a paper-based film core License to be bid. The evidence fails to support this contention. Polaroid is the primary manufacturer of paper-based instant photographic film, producing as much as 85 percent of such film. There is, however, at least one other manufacturer of paper-based film. That manufacturers is currently supplying paper-based film to NBS for use in producing the current License used in Florida. NBS has been notified by its current supplier of paper-based film that the film cannot be produced and supplied to NBS at the current price because it is only being manufactured for NBS's use in Florida. The evidence did not prove whether the statements made to NBS are true. Even if it is assumed that NBS cannot obtain paper-based film except at a higher price, the evidence did not prove that NBS cannot obtain paper-based film. Nor did the evidence prove that only one of the potential bidders could produce a License with "full color photo sensitized material." In the response to Rebid I, Polaroid and NBS produced a license which would meet this requirement. NBS's plastic-based film which it uses to produce Licenses has better contrast and resolution than Polaroid's paper-based film. NBS's Dekachrome polyester material, which is manufactured by Ciba-Geigy, will resolve in excess of 100 lines per millimeter, and may resolve up to 140 lines per millimeter, resulting in the ability to render a high degree of resolution for smaller items, including type or letters. Polaroid's film generally resolves at approximately 14 lines per millimeter, with a maximum resolution of 20 lines per millimeter. The NBS Dekachrome film has approximately a five to one factor of sharpness and clarity over Polaroid film. The contrast ratio of NBS Dekachrome material is approximately 77 percent and the contrast ratio of Polaroid film is approximately 73 percent. The difference in contrast and resolution can be measured in the laboratory. The evidence failed to prove that the differences significantly affect the legibility of Licenses actually produced using the film of Polaroid or NBS. The evidence also failed to prove that there is any significant difference in the legibility of Licenses produced with plastic-based film or paper-based film. There is no difference between Polaroid's plastic-based film and its paper-based film with regards to contrast and resolution. The difference in Polaroid film and NBS film is caused by the instant development process used by Polaroid and not by the difference in the material it uses. Therefore, the differences in contrast and resolution would exist even if Polaroid bid a plastic-based film. The evidence failed to prove that plastic-based alterations to Licenses or counterfeiting of Licenses. Rebid II, as amended, provides that sample Licenses are to be produced under the Department's supervision after bids are submitted. Those Licenses then must pass tests for tear strength, tensile strength, scratch resistance and resistance to fade. These provisions of Rebid II have not been challenged. These provisions will test the durability of the Licenses whether paper-based film or plastic-based film is used. Rebid II, as amended, allows the laminate to be a minimum of 0.007 inches to a maximum of 0.062 inches thick. The thickness of the laminate selected and the film core will affect the tear strength and tensile strength of Licenses. Use of a lip-seal laminate will also affect the durability of the License and eliminate the durability problems of paper-based film. Both Polaroid and NBS can bid in response to the requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that plastic-based or paper-based film be used. Reduction Factor; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, provides, in pertinent part, the following requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall be not less than 60 percent of the size of the photographed documents. The above quoted portion of Section 4.8.1 of Rebid II was contained in the original Rebid II issued by the Department on January 27, 1987, and was not amended by the Department. Section 4.8.1 of Rebid II also requires that the License core is to be 3-1/8 inches wide and 1-7/8 inches high prior to lamination. Section 4.8.3 of Rebid 11 requires that the finished License is to measure 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. These requirements were contained in the original Rebid II issued by the Department on January 27, 1987, and were not amended by the Department. Sections 3.2 and 3.3.2 of Rebid II provide for consideration by the Department of proposed changes to Rebid II. Section 3.3.2 of Rebid II provides the following requirements with regard to the manner in which changes were to proposed by potential bidders: The bidder, who requests changes to the State's specifications, must identify and describe the bidder's difficulty in meeting the State's specifications, must provide detailed justification for a change, and must provide recommended changes to the specifications. Requests for changes to the Invitation to Bid must be received by the state not later than 5:00 p.m., February 3, 1987. A Bidder's failure to request changes by the date described above, shall be considered to constitute bidder's acceptance of State's specifications. NBS's challenge to the 40 percent reduction factor requirement of Section 4.8.1 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that the maximum 40 percent reduction factor be changed to a maximum 30 percent reduction factor. Sections 3.2 and 3.3.2 of Rebid II have not been challenged by Polaroid or NBS. At the commencement of the final hearing of this case the Department announced that it intended to change the reduction factor requirement of Section 4.8.1 of Rebid II to require a maximum reduction factor of 30 percent instead of the maximum of 40 percent contained in Rebid II as challenged in this proceeding. Lip Seal; Section 4.8.3 of Rebid II, as Amended. Section 4.8.3 of Rebid II requires, in pertinent part, the following: The license or identification card shall be fully laminated, front and back, with a 1/8 inch lip seal. The laminate shall be no less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the inside of the laminate. The finished license shall be 3- 3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed... [Emphasis added]. NBS's challenge to the lip-seal lamination requirement of Section 4.8.3 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that a flush-cut seal be substituted for a lip-seal method of sealing the lamination. The estimated cost per unit of lip-seal lamination for NBS's Licenses is six to eight cents per License. The requirement of a lip-seal laminate contained in Rebid II was intended to provide additional security and durability. Lamination tends to prevent moisture, which causes deterioration of the License, from penetrating the photo emulsion of the photo-core. Whether plastic-based or paper-based film is used, the film emulsion layer may be scratched off if no lamination is used. Emulsion can also be removed from plastic-based film by moistening the film surface. The Department used a plastic, unlaminated License in 1978. The photo emulsions of this License came unattached from the license core and had to be laminated. The Department tried to use a flush-cut seal on paper-based film as a result of the problems it had with deterioration of the License produced by NBS in 1978. Flush-cut sealing of a paper-based film License does not stop the deterioration problems caused by water damage. The requirement of Section 4.8.3 of Rebid II that the License be lip- sealed is reasonably calculated to enhance the security and durability of the License. It will also enhance legibility by eliminating deterioration of the License. The requirement of Section 4.8.3 of Rebid II concerning lip-seal lamination does not restrict competition. Both Polaroid and NBS can bid a License with lip-seal lamination. F. Security; Section 4.8.4 of Rebid II, as Amended. Section 4.8.4 of Rebid II provides: The finished license or identification card shall contain security markings to be specified by the Department. The security markings shall be printed in fluorescent dye or a similar process so that they become visible when exposed to ultraviolet light. The security markings may be a part of the laminating process. Section 4.8.4 of Rebid I, as amended by Addenda III, provided: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core. The graphic design of the pro- applied security markings must be approved by the Department. The security markings feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security markings must be easily discernible with the naked eye, requiring no auxiliary reading devices for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. The First ITB contained the same security feature contained in Rebid II. A security feature like Polasecure, which changes appearance when the viewing angle changes, would provide a bettor deterrent to alterations and counterfeiting of Licenses than ultraviolet light. Such a security feature can be seen by law enforcement and others without any auxiliary viewing devices or special lighting. Although the security feature contained in Rebid I would enhance the security of Licenses, it was eliminated from Rebid II because of the inability of NBS to bid a License which contains such a feature and is consistent with the adhesion of the lamination specifications contained in Rebid I and Rebid II and because of the additional cost of such a feature. Polaroid had represented to the Department that Polasecure would increase the cost of a License by approximately five cents per License. The evidence failed to prove that this information is correct. The evidence suggests that additional cost of Polasecure is in excess of five cents per License. The ultraviolet security feature will provide security against unsophisticated counterfeiters and ensure the security goal of the Department is met. The Department is attempting to provide security against amateurs. Given enough time, any security feature can be counterfeited. Even products like Polasecure can be stolen from driver license offices and used to produce counterfeit Licenses. The Department properly weighed the need for a security feature for Licenses and the cost of such security features and has provided a reasonable security feature in Rebid II. Polaroid and NBS can produce a License which meets the security requirement of Rebid II. License Size; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, requires that the core of Licenses measure 1-7/8 inches by 3-1/8 inches. Polaroid has suggested that this provision be changed to allow a range of 1-3/4 inches by 2-3/4 inches to 1-7/8 inches by 3-1/8 inches. The smaller size core suggested by Polaroid is used in 26 of the 27 states presently served by Polaroid and by various agencies of the federal government. If the smaller size core is allowed, Polaroid can produce two Licenses from one sheet of its film. If the larger size core is required Polaroid can only make one License from each sheet of film. The Department has required a larger License size in order to improve the legibility of Licenses. The Department is concerned about complaints it has received from law enforcement officers and others about the legibility of the currently used License. The current License is legible by anyone who meets the vision requirements for employment by the Florida Highway Patrol, given good lighting and proper lenses to correct any vision problems the person may have. Not everyone, however, meets the vision requirements for employment by the Florida Highway Patrol. More importantly, law enforcement officers are sometimes required to read Licenses under poor lighting conditions. It is therefore reasonable for the Department to attempt to improve License legibility. Factors which affect the legibility of a License include the quality of the printing on the data card used, the degree of contrast on the data card, the optical-reduction factor in the camera, and the quality of the photographic image produced by the camera and the film. The evidence did not prove that the difference in the size of the License specified in Section 4.8.1 of Rebid II, as amended, and the size suggested by Polaroid will affect the legibility of the License. Although evidence was presented during the final hearing concerning plans of the Department to improve the method in which the data card is printed, Sections 3.18 and 4.6.5 of Rebid II, as amended, specify that the Department's existing and currently used data card is to be used in submitting bids to Rebid II, as amended. These provisions have not been challenged. Legibility will be affected by the extent of the maximum reduction factor allowed. The smaller the maximum reduction factor allowed, the better the legibility will be. Once reduced, the data card must fit into the size specified for the License core. Therefore, the reduction factor specified and the size of the License core must be consistent. In the current License produced in Florida, the data card is reduced by 42 percent from its original size. The License produced in 1978 featured a 33 percent reduction factor. The requirement as to the size of the License core and the maximum 40 percent reduction factor contained in Rebid II, as amended, are inconsistent. Mr. McCaskell conducted a study which indicated that if a 40 percent reduction factor is used there will be a considerable amount of unused space on a License core which measures 1-7/8 inches by 3-1/8 inches. If the size of the License core is reduced to allow a License core measuring 1-3/4 inches by 2-3/4 inches, a data card reduced by 40 percent will not leave unused space. The specification as to the maximum 40 percent reduction factor was included in Rebid II as a compromise between what Polaroid and NBS had informed Mr. McInnis they could produce. It was not based upon any scientific analysis by Mr. McInnis. Although a data card reduced by a maximum 40 percent reduction factor will fit on the smaller License suggested by Polaroid, the legibility of the License will not be improved. If the maximum reduction factor is reduced from 40 percent to 30 percent, however, the legibility of the License will be enhanced. A data card reduced by a maximum reduction factor of 31 percent will fit into the space for the data card specified for a License core of the size specified in Section 4.8.1 of Rebid II, as amended. If the header bar is reduced slightly a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the size specified in Section 4.8.1 of Rebid II, as amended. A data card reduced by a maximum reduction factor of 31 percent will also fit into the space for the data card specified for a License core of the smaller size suggested by Polaroid. If the header bar and the area for the driver's picture are reduced slightly, a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the smaller size suggested by Polaroid. The size specified by the Department in Rebid II, as amended, will not directly affect the goal of improving the legibility of the License. Reducing the maximum reduction factor to 31 percent will improve legibility and will be consistent with the other requirements of Rebid II, as amended, as to the size of the header bar and the size of the photograph of the driver. Allowing the range of sizes in the License core suggested by Polaroid is consistent with a reduction of the maximum reduction factor. Allowing the suggested range of sizes may also result in a cost savings to the Department since Polaroid would be able to produce two Licenses from one sheet of film. The Department's actions with respect to the License core size and the reduction factor have been arbitrary. Reducing the maximum reduction factor and allowing the Polaroid's suggested range of sizes for the License core are more reasonable specifications. Both Polaroid and NBS can bid a License meeting a 31 percent maximum reduction factor requirement and the Polaroid suggested range of License core sizes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department add a paragraph to its invitation to bid informing potential bidders that failure to challenge the specifications of the invitation to bid within the time prescribed in Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003(2)(b), Florida Administrative Code, will constitute a waiver of proceedings under Chapter 120, Florida Statutes. It is further RECOMMENDED that NBS's suggested changes to Rebid II, as amended, concerning the film core material specified in Section 4.8.1 of Rebid II, as amended, and lip-seal lamination specified in Section 4.8.3 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow a maximum reduction factor of 30 percent. It is further RECOMMENDED that Polaroid's suggested changes to Rebid II, as amended, concerning the type of security feature specified in Section 4.8.4 of Rabid II, as amended, and the specification of Section 4.10.4 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow the film core to measure 2-7/8 to 3-1/8 inches wide and 1-3/4 to 1-7/0 inches high. It is further RECOMMENDED that the size of the header bar and the space for the drivers' photograph be modified to accommodate a maximum 30 percent reduction factor and the smaller size License core. DONE and ENTERED this 4th day of June, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 4th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1125BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in, the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Polaroid's Proposed Findings of Fact Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1. 1. 2. This proposed finding of fact is irrelevant except to the extent that Polaroid and NBS serve about half of the states. See paragraph 2. 3. 103. 4. 104. 5. 105. 6. 4 and 6. 7. 106. 8. 107. 9. 7 and 108. 10. 109. 11. 7. 12. 108. 13. 113. 14. 110. 15. 111. 16. 112. 17. Not supported by the weight of the evidence. 18. 114. 19. 116 and 117. 20-22 116. The portion of proposed finding of fact 22 which begins "but careful ..." is rejected as argument. 23-25. 117. 26. 114. 27. 118. 28-31. 20. 32. 52. 33-36. Hereby accepted. 37-38. Irrelevant. 39. 22-24. 40. 28. 41. 29. 42. 30-31. 43. 32-33. 44. 34-35. The last sentence is not supported by the weight of the evidence. 45. 36. 46. 37 and 40. 47. 40-41. 48. 42. 49. 43. 50. 44. 51. 45-46. 52. 45 and 48-49. 53. 48. 54. Hereby accepted. 55. 56. 49. The fact that "the Department did not approach Polaroid Corporation to determine if Polaroid could temporarily supply driver license systems during the same interim period is irrelevant. Irrelevant. 57. 50. 58. 51. 59-60. 53. 61. 54. 62. 54 and 63. 63. 54. 64-65. 55. 66. Not supported by the weight of the evidence. 67. 56. 68-69. 57. 70-71. 58. 72. 60. 73. 158. 74. 60. 75. 61. 76. 160. 77. Irrelevant. 78. 62. 79. 63. 80. 64. 81. 65. 82. 66. 83. Irrelevant. 84. 67. 85. 70. 86. 68. 87. 69. 88-90. 71. 91. 72. 92. 73. 93. 75. 94. Irrelevant. 95. Hereby accepted. 96. 75. 97. 76. 98-99. 77. 100. 82. 101. 78. 102. 79. 103. 80. 104. Irrelevant. 105. 83. Mr. McInnis was one of the 106. primary technical drafters. 84-85. The last sentence is not 107-108. supported by the weight of the evidence. 84. 109. 86. The last sentence is irrelevant. 110-111. 88. 112. 89. 113. 90. 114. 91-92. 115. 90. 116-117. Irrelevant. 118. 93. 119. 94. 120. 96. 121. 97. 122-123. 98. 124. Not supported by the weight of the evidence. 125-126. 99. 127-132. Not supported by the weight of the evidence. 133-134. 100. Irrelevant. Not supported by the weight of the evidence. 137. 101. 138. Not supported by the weight of the evidence. 139. 101 and 119. 140. 138. 141. 126. 142-144. Statements of law. 145. 128 and 133. 146. 132. 147. 134. 148. 135. 149. 136. 150. 137. 151. 153. 152. 150 and 153. 153. 151. 154. 164-165. 155. 166. 156. 157. 167. The last two sentences are not supported by the weight of the evidence. 168. 158. 169. 159. 170. 160. 161-165. Not supported by the weight of the evidence. Irrelevant. 166. 174-175. 167. Irrelevant. 168. 174. 169. Irrelevant. 170. 180. 171. 179. 172. 181. 173. Not supported by the weight of the evidence. 174-175. 183. 176. 184. 177. Hereby accepted. 178. Not supported by the weight of the evidence. 179. 159. 180. Not supported by the weight of the evidence. NBS's Proposed Findings of Fact 1. 1. 2. 2. The last-sentence is irrelevant. 3. 10-14. 4. 15. The last sentence is not supported by the weight of the evidence. 5. 16-18, 20-21 and 51. 6. 19. 7. 23. 8. 24. 9. 25-27. 10. Not supported by the weight of the evidence. 11. 37. 12. 35. 13. 36. The last sentence is irrelevant. 14. 38-40. 41. The second sentence is uncorroborated hearsay. 47-48. The last sentence is not supported by the weight of the evidence. 46. The last sentence is not supported by the weight of the evidence. 18. 49. 19. 50. 20. 51. 21. 43-44. Polaroid did not request permission to conduct a demonstration Polaroid was requested by the Department. The opinion expressed by Major Keith was the opinion of his office. 22. 53, 61-63, 65-68 and 71. 23. 72 and 74. 24. 73 and 75. 25. 76. 26. 76-77. 27. Irrelevant. 28. 77. 29. 89-90 and 93. 30. 94. 31. 97. 32. 98. 33. 100. 34. 101. 35. 102. 36. 139, 141 and 164. 37. 144. 38. Hereby accepted. 39. 177. 40. 174. 41. 179. 42. 175-176. 43. 175. Hereby accepted. Hereby accepted. 46. 145. 47. 7. Not supported by the weight of the evidence. Irrelevant. Not supported by the weight of the evidence. 51. 147. 52-56. Not supported by the weight of the evidence. 57. Irrelevant. 58. 155. 59. 156. 60. 157. 61. 162. 62-63. 66. 64-65. Irrelevant. 66-67. 74. 68. Not supported by the weight of the evidence. 69. 160. 70. 163. 71. 101 and 119. 72. 119. Not supported by the weight of the evidence. 125. The evidence failed to prove that "there exists virtually no other economical source for a similar paper based instant photographic product." 75. 126. 76-80. Not supported by the weight of the evidence. 81. 134. 82. Irrelevant. 83-86. Not supported by the weight of the evidence. 87. 128. 88. 129. 89. 130. 90. 131. 91. Irrelevant. 92. 133. The last sentence is not supported by the weight of the evidence. 93. 138. 94. 113. 95-96. Irrelevant. 97-102. Not supported by the weight of the evidence, irrelevant or statement of law. The Department's Proposed Findings of Fact 1. 4. 2. 119. 3-5. 120. 6. 121-122. 7. Statement of position. 8. 128. 9. 145. 10. 148-149. 11. 152. 12. 151-152. 13. Hereby accepted. 14. 154. 15. 139 and 144. 16-17. 168. 18. 173. 19. 179. 20. 172-173. 21. 22. 172. The last sentence is not supported by the weight of the evidence. 164. 23. 24. Not supported by the weight of the evidence. 113. 25. Irrelevant. 26. 27. Not supported by the weight of the evidence. 180. 28. 185. 29. 155. 30. 156. 31-32. 74 and 81. 33. 159. 34. 160. 35-38. 161. 39. 163. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Enoch J. Whitney, Esquire General Counsel Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 H. Michael Madsen, Esquire Douglas J. Rillstone, Esquire Messer, Vickers, Caparello, French & Madsen Post Office Box 1876 Tallahassee, Florida 32302-1876 Keith C. Tischler, Esquire Parker, Skelding, McVoy & Labasky Post Office Box 669 Tallahassee, Florida 32302 Robert G. Holderness, Esquire Robert G. Holderness & Associates 925 L. Street, Suite 1490 Sacramento, California 95814
The Issue This cause arose as an action pursuant to Section 120.56(2), Florida Statutes, challenging the validity of the amendment to Rule 59U-16.002(2), Florida Administrative Code, proposed and published by the Board of Opticianry on February 14, 1997. The issues are: Do Petitioners have standing to bring this rule challenge? Is the following proposed amendment of Rule 59U- 16.002(2), Florida Administrative Code, an invalid exercise of delegated legislative authority, pursuant to Sections 120.52(8)(c) and (8)(e), Florida Statutes? A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. (Amended language underlined) Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?
Findings Of Fact All persons seeking to be licensed as opticians in Florida must first pass a minimal qualifications licensure examination. Before being qualified to sit for this examination, one of the following courses of preparation provided in Section 484.007, Florida Statutes, must be met. In relevant part, this section provides that one must have (1) received an associate degree, or its equivalent, in Opticianry from an accredited educational institution; (2) be an individual who is licensed to practice the profession of Opticianry in another state, territory, or jurisdiction, who has actively practiced for more than three years; or (3) come from a state or jurisdiction which is not licensed and have actively practiced in that state, territory, or jurisdiction for more than five years immediately preceding application; or (4) be an individual who has completed an apprentice program consisting of 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the law of this state. Respondent Board of Opticianry published on February 14, 1997 a proposed change to Rule 59U-16.002(2), Florida Administrative Code, as set out below. The underlined language is the only substantive change: 59U-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: No change. A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. Specific Authority - 484.005 F.S. Law Implemented - 484.007(1)(d)4. F.S. The parties' Amended Prehearing Stipulation agreed that, Petitioners did not request a public hearing pursuant to the Florida Administrative Weekly notice. A Notice of Additional Public Hearing scheduled for May 16, 1997, was published on April 18, 1997, Volume 23, No. 16, Florida Administrative Weekly. At that hearing, the Board of Opticianry discussed and approved an amendment to proposed amendment to Rule 59U- 16.002. At formal hearing, counsel for the Board represented that the Board had voted to amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out of state prior to passing the Florida Opticianry licensure examination from acting as sponsors of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until a Final Order is entered on the instant challenge. The Board's position was that this vote did not constitute a stipulation of invalidity, arbitrariness, capriciousness, or overreaching its statutory authority. According to the Board, this representation was made only because the Board would not be putting on evidence to support certain portions of the rule language, as published. Nonetheless, Sam Jones, licensed optician and Board member, testified, on behalf of the Board, that new Florida licensees from out of state could not properly sponsor apprentices for at least one year because they "need a little more exposure" to Florida laws and rules before teaching others and because some other states have no licensure criteria at all and no continuing education requirements. The Petition challenges the ability of the Board to require that opticians be licensed for at least one year prior to serving as apprentice sponsors, alleging that the Board lacks statutory authority to promulgate such a rule and that the proposed change is arbitrary and capricious and not based on appropriate factual or legal justification. Petitioner Lenscrafters, Inc. is a corporation that does business in the State of Florida, offering optical services and goods to the public. Lenscrafters hires employees to work as opticians, as well as hiring other unlicensed store employees. Petitioner Sanjiv Matta is Lenscrafters' Regional Trainer of Operations and apparently Lenscrafters' primary Florida employment recruiter. He also locates coaches for Lenscrafters' training programs. He has been a licensed optician in Florida for more than one year. He does not currently sponsor an apprentice. Lenscrafters and Mr. Matta allege that they will be substantially affected because the proposed rule amendment will reduce the number of available sponsors, which will in turn reduce the number of apprentices, which will in turn reduce the number of available employees now and the number of available licensed opticians in the future. As a subset of this alleged chain of unavailability of sponsors, apprentices, and employees generally, Petitioners claim great difficulty will arise in attempting to coordinate apprentice work hours with sponsor work hours. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores. Approximately 25 of the 200 opticians employed by Lenscrafters in Florida have been licensed for less than one year. These 25 were among the 60 new employees hired by Lenscrafters last year. Some of the licensed opticians Lenscrafters hires unilaterally elect to serve as sponsors to other employees who would like to obtain their opticianry license by completing an apprenticeship program. However, according to Mr. Matta, it would not be "integrity based" for Lenscrafters to urge or encourage optician employees to take on sponsorship. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ. Although Lenscrafters provides programs to help all its employees, including apprentices, achieve expertise in fitting and adjusting eyeglasses and provides situational training, equipment training, training tests, performance tests, and lending libraries, it has no specific apprenticeship program, as such, in place. Some of Lenscrafters' programs assist apprentices in attaining credit hours towards licensure. Some supplement the apprentice program requirements. The primary purpose of Lenscrafters' programs is to educate and train its employees for servicing its customers. The ultimate testimony of Mr. Matta that there currently are three opticians employed by Lenscrafters who have been licensed in Florida for less than one year and who are also currently serving as sponsors was anecdotal at best and at worst was speculative and self-contradictory of prior testimony. Lenscrafters currently has 66 apprentices in its employ in Florida. Pursuant to Board rules, each sponsor may oversee two apprentices and any apprentice may have both a primary and a secondary sponsor. Credit hours in the apprentice program are only earned when the apprentice works under a sponsor's supervision. Board rules would permit Lenscrafters' 200 opticians to sponsor 400 apprentices if each licensee had two apprentices. The proposed change in the rule would allow 175 Lenscrafters' opticians to sponsor 350 apprentices. Simple mathematics shows that Lenscrafters has between 33 and 66 optician employees who serve as apprentice sponsors, primary or secondary. Clearly, Lenscrafters currently employs many more non-sponsors than sponsors. Section 484.011, Florida Statutes, allows any employee of an optician to perform any of the functions an optician performs, as long as the acts are performed under the direct supervision of the optician. Lenscrafters allows apprentices to perform more tasks than other unlicensed employees. Lenscrafters considers apprentices to have greater expertise, employee commitment, and career commitment than other unlicensed employees. Lenscrafters pays apprentices more than other unlicensed employees. Lenscrafters and Mr. Matta believe that apprentices who have worked in Lenscrafters' stores and trained on Lenscrafters' equipment will eventually provide a pool of trained opticians for hire or promotion. However, Lenscrafters submitted no statistical data to confirm this "belief" expressed by Mr. Matta, and based on the ratio of available sponsors to apprentices which was developed at formal hearing, this "belief" constitutes pure speculation. It could be just as beneficial for Lenscrafters to train non-apprentices at a lower salary. Intervenor Odette Gayoso has been involved in opticianry for 15 years. She has an Associate of Arts (AA) degree in Optical Science and has been licensed as an optician in Puerto Rico since 1991. Ms. Gayoso is employed as an optician by Lenscrafters. She has been a licensed optician in Florida since December 1996. Therefore, at the time of formal hearing, she had been Florida- licensed for less than one year. Under the proposed rule amendment, she would be unable to act as a sponsor for five more months. Ms. Gayoso does not sponsor an apprentice currently, although the current rule permits her to do so. She has never applied to be a sponsor. No apprentice currently wants her as a sponsor. In the past, two Lenscrafters employees needed sponsors, but both left Lenscrafters' employ before any agreements concerning sponsorship were reached. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing. Mr. Matta and Ms. Gayoso testified that they recruit for Lenscrafters. Ms. Gayoso is an assistant retail manager in a single store. Mr. Matta recruits state-wide. Only Mr. Matta testified that, in his experience, there is a shortage of qualified opticians available to be hired. Only Mr. Matta testified that due to the Board's rule requirement of direct supervision it was difficult for him to match apprentices' work hours with those of their sponsors. Ms. Gayoso did not corroborate Mr. Matta's perception that it is difficult to match apprentices' work hours with those of their sponsors. Although she could see how that could be, it apparently was not a problem in her store where the optician/manager sponsored two apprentices and where another optician who had been employed less than 90 days was prohibited by Lenscrafters from acting as a sponsor. The fact that Lenscrafters prohibits some of its licensed opticians from sponsoring apprentices undermines Lenscrafters' position that the proposed rule change alone would undermine apprentices locating willing sponsors. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment. The Board office receives approximately 86 calls about the apprenticeship program each month. The Board has never received a call concerning a prospective apprentice's inability to find a sponsor. There are currently approximately 2,500 actively licensed opticians in Florida. Of these 2,500 licensees, 174 were licensed last year. This number of annual new licensees has stayed relatively stable for many years. Of 544 current apprentices in Florida, only 27 currently have sponsors of less than one year licensure. The statistics show that many more potential sponsors are available both state-wide and within Lenscrafters' Florida operation than there are those who want to be apprentices. Under the current rule, only those licensees who are currently under disciplinary action are precluded from being sponsors. Under the proposed rule, and excluding any disciplinary concerns, only the 174 new admittees could not be sponsors for one year. A year later, those 174 could become sponsors. So in effect, the only licensees who could not be sponsors each year are the newest licensees, while each year the total number of potential sponsors grows respectively. Of course, the number of eligible physicians and optometrists who could also serve as sponsors would not fall below the current number and would continue to grow respectively year by year. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year. Approximately half of the successful opticianry licensure examinees come from the AA program, and half come from the apprentice program. There is a 90 percent first time pass rate on the examination. The number of apprentice program examinees who fail on both the initial examination and "retake" examinations is higher than for AA degree holders. Since 1991, the Board has been concerned that the apprenticeship route has not been adequately educating future opticians and ensuring the safety of their public practice after licensure even if they were being adequately prepared to pass the standardized minimal qualifications examination. The Board consulted no empirical data for formulating its rule as published, but it held between nine and 12 Board meetings which included discussions on upgrading the apprenticeship program. Board members reported information from nationally recognized professional associations and reviewed a national trend whereby more states are requiring licensure and more states are phasing out apprenticeship programs. Some Board members took the minimum qualifications licensure examination so that they could understand what was involved and how the examination could be improved and report back to the Board. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted. These Board meetings were open to the public and solicited public input. Some were referred to as "workshops," although they might not meet the generally understood Chapter 120, Florida Statutes, definition of "workshop." In 1996, a bill to amend Chapter 484, Florida Statutes, so as to require optician licensees to have three years of licensure before becoming sponsors did not pass into law. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination. Sam Jones was one of the Board members who retook and passed the current licensure examination. On behalf of the Board, he stated that the teaching of how to pass the licensure examination did not equate with teaching the practice of opticianry. In drafting the rule challenged herein to apply to all new optician licensees regardless of which of the four alternative routes they had taken to licensure, the Board viewed the new one-year requirement as constituting an internship akin to the internship required of other health care professionals. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor. In not applying the one-year requirement to physicians and optometrists, but only to opticians, the Board considered that licensed physicians and optometrists already had clinical experience in excess of licensed opticians. The parties stipulated that the Board is authorized to make such rules as are necessary to protect the health, safety, and welfare of the public as it relates to the practice of opticianry and is authorized, "to establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the Board."
The Issue Whether Trinitee Ra' Myah Lewis, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Cedric Lewis and Brandi Scriven-Lewis are the natural parents and guardians of Trinitee Ra' Myah Lewis, a minor. Trinitee was born a live infant on November 11, 2004, at Orange Park Medical Center, Inc., a licensed hospital located in Orange Park, Florida. The physician providing obstetrical services at the time of Trinitee's birth was Richard L. Bridgewater, M.D., and at all times material, Dr. Bridgewater was a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Trinitee is the result of a single gestation, and her birth weight was in excess of 2,500 grams. To address the cause and timing of Trinitee's neurologic impairment, if any, the parties stipulated to medical records related to Mrs. Scriven-Lewis' antepartum course and to those records associated with Trinitee's birth and subsequent development. Mrs. Scriven-Lewis' prenatal course was without significant complications. On November 8, 2004, Mrs. Scriven-Lewis was admitted to Orange Park Medical Center to rule out labor and possible rupture of membranes. A vaginal examination at 7:00 p.m.,3 indicated that she was 1 cm dilated, 50% effaced, and at station -3. The fetal heart rate was baselined in the 120-130's with accelerations. Mrs. Scriven-Lewis was admitted for 23-hour observation for pregnancy-induced hypertension, with a 24-hour urine study in progress. Over time, labor was ruled out, but she was noted to have elevated blood pressure of 160/90 with lower extremity swelling. On November 9, 2004, the fetal heart rate was reactive and reassuring with irregular contractions. A vaginal examination at 10:36 a.m., indicated that Mrs. Scriven-Lewis was 1 cm dilated, 50% effaced, and at station -3. She was diagnosed with mild preeclampsia with borderline thrombocytopenia at term. Also on November 9, 2004, Mrs. Scriven-Lewis' pregnancy-induced hypertension symptoms were stable and another vaginal examination indicated that she was 1.5 cm dilated, 50% effaced, and the baby was at a high station. The baby's fetal heart rate remained reactive and reassuring with contractions that were spaced. Pitocin was discontinued, and the records indicate that a normal spontaneous vaginal delivery was expected upon onset of active labor. Another vaginal examination was performed at 9:50 p.m., indicating Mrs. Scriven-Lewis was dilated to 1.5 cm, 50% effaced, and at station -2. Mrs. Scriven-Lewis continued to labor on through November 10, 2004. A vaginal examination was performed at 6:54 a.m., with findings indicating she was 2 cm dilated, 70% effaced, and at station -2. The fetal heart rate was reactive and reassuring in the 140's, with good short- and long- term variability with accelerations. Mrs. Scriven-Lewis' membranes were ruptured, and moderate meconium was observed. Pitocin was started, as well as an amnio-infusion, due to decreased amniotic fluid at 3 cm per a sonogram showing fetal weight at eight pounds, two ounces. A normal spontaneous vaginal delivery was still expected at that time. Labor slowly and consistently progressed on November 11, 2004, into the second stage of labor, and pitocin was discontinued. The fetal heart rate was reassuring and a vaginal examination at 7:05 a.m., was at anterior lip, station zero, with some molding. Dr. Bridgewater noted "overall reassuring maternal and fetal status" and believed there was a transition into the second stage of labor. On November 11, 2004, at 8:13 a.m., Mrs. Scriven-Lewis had a low-grade fever of 100 degrees, but the fetal heart rate was reassuring. She had reached complete dilation and effacement and was at station 2+. She was instructed on pushing techniques and was pushing in the correct manner. Mrs. Scriven-Lewis progressed to complete dilation with spontaneous contractions without pitocin. She began pushing with a reassuring fetal heart pattern in the 140-150's. Pitocin was restarted for the second stage of labor to increase the frequency of contractions. However, even with aggressive pushing, she was unable to force the fetus' presenting parts beyond a 2+ station. Subsequently, abdominal, lower extremity and vulvovaginal edema were noted. A fetal assessment was notable for molding and mild caput. The pelvis was adequate, and a vacuum assist was offered for traction and was agreed- upon. A vacuum assist was performed without complications, although there was one pop-off. The molded forehead was delivered at 9:13 a.m., by vacuum-assisted delivery over a midline episiotomy. The elongated forehead was delivered with obvious "turtle sign" to the level of the orbits. A partial McRoberts maneuver was used to deliver the posterior shoulder. When the head was delivered, DeLee catheter suctioning of the naso-oropharynx was performed on the perineum with some moderate meconium. At 9:14 a.m., the McRoberts corkscrew maneuver was applied with suprapubic pressure without success. When delivery attempts failed, Mrs. Scriven-Lewis' episiotomy was cut to a fourth degree level at 9:15 a.m. The suprapubic pressure paradoxically appeared to have worsened the delivery of the anterior shoulder. At 9:19 a.m., a "stat" cesarean section was called. The shoulder dystocia was reduced at 9:22 a.m., with continued attempts using the McRoberts corkscrew, and Trinitee was delivered in floppy condition. Upon delivery, she was handed off to a neonatologist in attendance. Trinitee's Apgar scores were 0 at one minute, 1 at 5 minutes; 4 at 10 minutes; 4 at 15 minutes; 6 at 20 minutes; and 7 at 25 minutes. Trinitee's cord blood was drawn with a pH of 7.21 with a base excess of -9.1. Upon delivery, Trinitee was noted to be limp, pale and apneic. Minimal meconium-stained fluid was aspirated. She was then intubated, and treated with compressions, oxygen and 100 percent ambu [bag]. Due to lack of an auscultated heart rate (heart rate heard via device), three doses of epinephrine were administered at 9:24, 9:25, and 9:27 a.m., in addition to continued oxygen and chest compressions. At 9:28 a.m., Trinitee's heart rate was <100, so chest compressions and oxygen were continued. Chest compressions ceased at 9:32 a.m., when there was a regular heart rate of 160, but oxygen continued. At 9:38 a.m., Trinitee had a spontaneous gasp and opened her eyes. Boluses were administered between 9:31 a.m., and 9:42 a.m., for metabolic acidosis. At 9:46 a.m., irregular respirations were noted, and oxygen continued during Trinitee's transport to NICU. Upon arrival in NICU, she was placed on a ventilator. At 11:05 a.m., Dr. Robert D. Garrison from Shands Hospital arrived to evaluate Trinitee. He noted that she had no spontaneous respiratory effort, and had hypotonia, eyelid fasiculations, pink color with adequate skin perfusion and a large boggy scalp in the occiput area. A chest X-ray showed a small right pneumothorax which subsequently resolved. An antibiotics course was started, due to maternal temperature of 100.5 and rupture of membranes at 16 hours. Trinitee was then transferred to Shands' NICU. Trinitee was admitted to Shands NICU at 1:10 p.m., for neonatal depression and respiratory distress. Her physical examination upon admission determined that neurologically she was hypotonic; had a clenched right fist; was tremulous with occasional arching; and was able to move her right arm and lower extremities. However, she could not move her left arm. She also was not alert. While at Shands, Trinitee was treated for neonatal depression, right pneumothorax, respiratory failure, sepsis, patent ductus arteriosus (a shunt allowing blood to bypass the lungs until they are fully developed), seizures, brachial plexus palsy, cephalohematoma, hypoxic-ischemic encephalopathy and a subdural hematoma. On November 18, 2004, Trinitee was transferred to Baptist-Wolfson's Children's Hospital in guarded condition on room air. She was discharged from Baptist-Wolfson's Children's Hospital on December 8, 2004, after being treated for right phrenic nerve paralysis, murmur, thrush, hematologic surveillance, seizures, and left brachial plexus palsy. Trinitee received follow-up neurological treatment at Nemours Children's Clinic after her discharge from Baptist- Wolfson's Hospital. Upon examination when Trinitee was six weeks of age, Dr. William Turk, neurologist, felt that, considering her early history, Trinitee was doing surprisingly well. On January 17, 2005, at two-and-a-half months of age, Trinitee's brachial plexus injury was thought by the orthopedic clinic physician to be a candidate for exploration and possible repair due to persistent lack of movement of the upper extremity. At three months of age, Trinitee was seizure-free and had a normal EEG, so she was tapered off phenobarbital. A report generated by Dr. Peter Murray, of Nemours' orthopedic clinic, described Trinitee's visit on March 1, 2005, by stating that Trinitee's mother had reported that Trinitee had some increased spontaneous activity with the left upper extremity while lifting from the shoulder in a recumbent position as well as wrist and finger flexion and that the mother had not noted any active elbow flexion. On examination, Dr. Murray noted Trinitee had abduction in that shoulder to about 30 degrees, 15 degrees flexion contracture of the elbow and internal shoulder rotation, but there was no evidence of active external rotation of the shoulder. Trinitee was noted to have full abduction of the shoulder passively as well as external rotation of the shoulder being complete passively. A pin test showed some impaired perception and sensibility in the fingers and dorsum of her left hand and palm, which had improved from her initial sensory examination at one month of age. Nemours has continued to assist in and monitor Trinitee's progress. On May 18, 2005, Trinitee underwent a left brachial plexus acute repair of C5, C6, and C7 nerve roots at Baptist- Wolfson, with bilateral sural nerve grafting. There were no complications. Thereafter, Trinitee received occupational therapies during her hospital course which continued after her discharge. Therapy included weight-bearing exercises for the left upper extremity and positioning of the left wrist. On August 9, 2005, an occupational therapy evaluation determined that Trinitee had bilateral upper extremity passive range of motion within normal limits. Her left upper extremity active range of motion was severely limited at the shoulder, elbow, wrist, and hand, but her fine motor skills were considered age appropriate, given her limited left upper extremity use. Trinitee's August 12, 2005, physical therapy evaluation by "Pediatric Therapy Works!" found that her left arm was floppy with no intentional movement noted, but that with total body movement, the tone increased in the left upper extremity. Hereafter, the term "left upper extremity" includes the left arm and hand, unless stated otherwise. By August 2005, Trinitee was tolerant of weight- bearing exercises to her left upper extremity, and with taping, she was noted to extend her thumb and first two fingers while keeping her wrist in neutral. She was also noted to accept more weight bearing to the left upper extremity and was more tolerant to challenges. At a September 21, 2005, neurology visit, Trinitee's mother reported to Dr. Turk some modest improvement in Trinitee's left arm function and some increased shoulder abduction and finger flexion. At ten months of age, Trinitee was seizure-free and making reasonable progress developmentally. At that point, she was discharged by Drs. Turk and Usmani-urishi, but continued upon a follow-up consultation nine months later. Trinitee brought her wrist to neutral and her first three fingers into extension in October and November 2005. Mrs. Scriven-Lewis also reported to Dr. Murray on October 4, 2005, that Trinitee had no overall change in her left upper extremity except for some mild early forward flexion of the left shoulder. Physical examination was absent for biceps flexion and any left shoulder elevation. Some adduction of the left arm across the chest was noted. Her occupational therapy records indicate that in October and November 2005, Trinitee had improved tonus of the left upper extremity holding weight bearing with minimal elbow assist once her hand was positioned. She also showed good shoulder extension while reaching to activate musical toys. In December 2005, Trinitee's occupational therapist reported that Trinitee showed increased tone in her left upper extremity distally. She also kept her left extremity wrist in neutral with tape. At the same time, Trinitee was noted to have increased distal tone in the left upper extremity and had increased active grasp to hold a toy. In January 2006, Trinitee grasped beads with the fingers of her left hand extended, and achieved 80 degrees shoulder flexion to place the beads over her mother's head. In February 2006, Trinitee had movement of the left upper extremity 70-80 degrees actively in shoulder flexion to manipulate toys on a table. Active movement of the thumb and first and second fingers was also noted. Trinitee's February 21, 2006, re-evaluation by Caterina A. Tsombanidis, her physical therapist, indicated that Trinitee was using her left hand to assist occasionally to keep objects in place and manipulate objects. She was able to move the first three fingers involving radial and median nerves and raised her left upper extremity in shoulder flexion to 70 degrees actively and about 60 degrees abduction. She was able to prop up on elbows in prone position and to bear weight on bilateral extended upper extremities, especially on the left side. At that time, Trinitee's physical therapist's treatment note indicated that Trinitee had a partial range of motion and active range of motion to the left upper extremity while playing the "so big game" and that she was able to pick up three rings and place them into her left hand spontaneously. The occupational therapy re-evaluation on February 20, 2006, found that Trinitee's left upper extremity's passive range of motion was within normal limits with active range of motion improved to 80 degrees left shoulder flexion and 20 degrees elbow and wrist flexion, and that her left hand finger extension could grasp a toy. She fully bore weight on her left upper extremity when given an assist for elbow extension. When crawling, she only bore weight on her right upper extremity (right arm). Physical therapy notes in March 2006, indicate that Trinitee continued to improve being able to lift her left upper extremity to 60 degrees to reach for a toy. Trinitee was also able to lift that upper extremity while sitting, to place it on a table actively 70 degrees in shoulder abduction and flexion. Active movement was noted at wrist, improving slightly, moving to neutral. In March 2006, Trinitee was noted by the occupational therapist to bring her left shoulder to 90 degrees actively and to place her hand on the table independently. She also had partial and active range of motion to the left upper extremity while on a ball to increase spontaneous movement, and she used her left upper extremity in two-handed play. In April 2006, Trinitee used a hand-over-hand assist with her left-hand shoulder flexion to 90 degrees to make an art project. Trinitee was subsequently removed from the occupational schedule due to poor attendance. As of April 4, 2006, her mother reported her as actively using her shoulder, and a physical examination by Dr. Murray at Nemours found Trinitee with active shoulder abduction and forward flexion to approximately 80 degrees, and forward flexion to approximately 70 degrees, respectively. During ambulation, she was noted to carry the elbow at approximately 60 degrees of flexion, but also would extend the elbow during ambulation, and she was seen to have digital and wrist extension to neutral. An April 2006 physical therapy note indicated that Trinitee was extending her upper extremity nicely on the left side and was reaching with increased skill, as well as having increased movement of the wrist in neutral position with manipulation of activities. Trinitee was more active with activities of her left upper extremity when her right upper extremity movement was limited. She was also found to flex her trunk to the right to increase her left upper extremity movement when lifting above 90 degrees. As of June 2006, Trinitee continued to show increased functional ability with the left upper extremity, by grabbing, attempting to throw, and using her left upper extremity to put objects into a container. She also had increased range of motion, active 90-110% with a tendency to extend backwards to increase her range of motion with activities. Despite her improvement, she was discharged from "Pediatric Therapy Works!" on August 30, 2006, for non-compliance with its attendance policy and a less than 50% attendance rate. By age two, neurologically, Trinitee was making good progress, including talking, putting words together, and understanding what was being said to her, and her parents felt that she was quite intelligent. Since she was seizure-free and developmentally making progress, Trinitee was not scheduled for any follow-up appointments with Dr. Murray at that time. On January 16, 2007, at age two, during a follow-up evaluation, Mrs. Scriven-Lewis reported that Trinitee was continuing to make progress in her left upper extremity function. A physical examination determined that Trinitee was undergoing continued recovery of her left upper extremity brachial plexus reconstruction with forward flexion of the left shoulder to 90 degrees, abduction to 90 degrees, biceps flexion to 90 degrees, wrist extension to -10 degrees, and digital extension to neutral. On July 10, 2007, Trinitee's mother reported no complaints regarding her progress. At that time, her essentially routine physical examination by Dr. Murray revealed that Trinitee had excellent biceps flexion at 3+/5, extended the wrist to neutral, and extended her index finger to beyond neutral. Forward flexion and abduction of the shoulder were both to 90 degrees, with passive forward flexion of her left shoulder to 170 degrees and external rotation to 90 degrees in abduction. A Hoffer latissimus transfer was discussed with Mrs. Scriven-Lewis, and Trinitee was to return to the clinic again in November 2007. On May 9, 2008, "after a long hiatus," Mrs. Scriven- Lewis indicated that Trinitee's left upper extremity was working well but that she had concerns about Trinitee's left shoulder animation. Physical examination revealed abduction of the left arm to approximately 80 degrees, forward flexion to approximately 80 degrees with the shoulder in the internally rotated position. Biceps strength was found to be excellent at 4/5, and Trinitee was able to extend her wrist to neutral with digital extension and good grasp and release. Her left shoulder could be passively externally rotated to 45 degrees in the adducted position and 80 degrees in the abducted position. At that point in time, Mrs. Scriven-Lewis agreed to have Trinitee undergo a left shoulder Hoffer latissimus transfer. Trinitee returned for an orthopedic visit to Nemours and Dr. Murray on November 20, 2009. At that visit, her mother indicated that Trinitee's left upper extremity was working well, but that Trinitee could not raise her arm above her head or put her hand behind her head. It also was reported that Trinitee was doing well in kindergarten. Examination revealed passive range of motion of the left shoulder was forward flexion 170 degrees, external rotation in abduction 80 degrees, and external rotation in adduction 80 degrees. Forward flexion of the shoulder was 80 degrees and also for abduction. Left elbow range of motion was 30/130 with strength at 4/5. Left wrist extension was to 120 degrees, but Trinitee was unable to touch the back of her head, due to loss of internal rotation of the left shoulder. A latissimus transfer was discussed to augment Trinitee's left shoulder external rotation. On December 18, 2009, due to lack of wrist extension and lack of shoulder external rotation, Trinitee underwent, at Nemours, a left wrist flexor carpi ulnaris to extensor carpi radialis brevis tendon transfer; a left latissimus dorsi and left teres major tendon transfer to left supraspinatus tendon and a one-and-a-half shoulder spica cast application without complications. She was five years old at the time. At her surgical follow-up visit on February 3, 2010, Trinitee showed evidence of early range of motion of the shoulder in abduction and external rotation, both at 90 degrees. By March 5, 2010, she was able to touch the back of her head and needed to wear her brace only at night. Trinitee currently attends Discovery Point Child Development Center. The medical evaluation completed by Suncoast Pediatric Care dated March 3, 2009, indicates that "This child may participate fully in school activities including physical education." Additionally, her Individual Child Profile for the fall checkpoint date of October 16, 2009, indicates that she does not often use her left arm, but, nonetheless, she has balance while moving, climbs up and down, pedals and steers a tricycle, and can throw, kick, and catch, with increasing control. She also uses tools for writing and drawing to make basic strokes and some recognizable objects. In all other areas of her development, she met the goal for the fall checkpoint date. Regarding Trinitee's general development, Mrs. Scriven-Lewis indicated on the Oak Hill Hospital Rehabilitation Center Pediatric/Adolescent Intake Form, filled out when Trinitee was five years old, that Trinitee held her head up between 3-6 months; stood at 1-2 years; was bowel- trained at 2-3 years; sat unsupported at 1-2 years; walked unaided at 1-2 years; and fed herself with a spoon at 12 months. According to her mother, Trinitee's favorite activities at age five included playing, riding her bike, and coloring. With regard to communication skills, her mother represented that Trinitee did not have difficulty expressing her thoughts, feelings, and needs to other people, either verbally or non- verbally; that her primary form of communication is verbal; and that her speech is a little slurred, but her voice is normal. Trinitee also appeared to understand speech normally for her age. She did not repeat questions. She did not have any issues with coughing, choking while swallowing, or with chewing and swallowing. She had not had any issues regarding her ability to read or write. For recreational activities, Trinitee rode her bike, colored, painted and played on a swing and with cards. On March 2, 2010, Trinitee was five years and three- plus months of age, and took a Preschool Language Scale-3 test. Her auditory comprehension score indicated that she was at the age equivalent of five years and eight months old. Her expressive comprehension score indicated that she was at the equivalent age of five years and 11 months old. Her total language score indicated that she was at the age equivalent of five years and seven months old. Her March 2, 2010, Oak Hill Rehabilitation Services Outpatient Pediatric Assessment for speech therapy indicated, in the clinical findings, that Trinitee had an auditory comprehension age equivalent of five years eight months, and that she had an expressive language score of five years, 11 months. However, she obtained an articulation (speaking, pronunciation, enunciation) score of only three years, 11 months. On September 30, 2010, Trinitee was discharged from therapy because she stopped coming in. Pertinent to this case, coverage is afforded by the Birth-Related Neurological Injury Compensation Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord of a live infant . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. Based on the parties' stipulations, the issue to be resolved herein is whether the record supports the conclusion that, more likely than not, any injury that Trinitee may have sustained during the statutory period resulted in a permanent and substantial mental and physical impairment as required for coverage under the Plan. See § 766.302(2), Fla. Stat. NICA's position is that Trinitee has a substantial motor impairment because she has brachial plexus palsy, but that her injury does not arise from damage to the brain or spinal cord. In addition, it is NICA's position that Trinitee does not have any permanent or substantial mental impairment Among the items in evidence is a report of Donald C. Willis, M.D., an expert in maternal-fetal obstetrics, who concluded that there had been an obstetrical event (shoulder dystocia), that caused loss of oxygen to the brain and mechanical trauma to the spinal nerve roots. He was unable to comment as to the severity of the injuries. Apparently, Dr. Willis' conclusion was based solely on a records review, because his report does not mention an examination of Trinitee. In contrast, Dr. Michael S. Duchowny, a board- certified pediatric neurologist, examined Trinitee. According to Dr. Duchowny, Trinitee has a substantial motor impairment because she has a brachial plexus palsy. However, it was also Dr. Duchowny's opinion that Trinitee's brachial plexus palsy resulted from a peripheral nerve injury and was not the result of damage to the brain or spinal cord. While the foregoing condition was characterized by Dr. Duchowny as permanent, and he described Trinitee's palsy as "permanent," and "moderate to severe," it was also Dr. Duchowny's opinion that Trinitee did not have any permanent or substantial mental impairment. In particular, Dr. Duchowny testified, in pertinent part, as follows: * * * A: . . . I thought that Trinitee did have a substantial motor impairment because she had a brachial plexus palsy, which involved multiple cervical and probably high thoracic segments of her brachial plexus, so this was a severe motor impairment. However, the motor impairment resulted from damage to the brachial plexus, which is outside the spinal cord and, therefore, outside the central nervous system. So even though there was a substantial impairment and permanent motor impairment, it did not arise from damage to the central nervous system, either the brain or spinal cord. I also thought that Trinitee did have a speech dysarthria, which was highly [likely] to be developmentally based, but overall, her examination showed no findings that suggested a substantial or permanent mental impairment. * * * My opinion, I do not believe that Trinitee's motor impairment is a result of an injury to the brain or spinal cord. * * * . . . I believe that she had neither a permanent nor substantial mental impairment. * * * I didn't find any evidence of brain damage in Trintee. * * * Q: Well, based on your understanding of what is required in order for a child to receive compensation through NICA, did Trinitee Lewis sustain such an injury with respect to her physical impairment? A: I'm sorry, I need to qualify my previous answer. I don't think she met any of the criteria because her physical impairment is due to an injury outside the central nervous system, so she doesn't meet criteria on that basis. Q: Doctor, if you would, help me understand that again briefly. When you say her injury was outside the central nervous system, where in your opinion was the injury? A: The nerve root in the brachial plexus. Q: And the nerve root in your opinion then does not connect to the central nervous system? A: It connects, but is part of the peripheral nervous system. * * * Q: Doctor, this will be a somewhat broad question, but I'm going to rely on you to fill in the details. If you would please give me in as minute details as possible all the reasons you believe that Trinitee Lewis does not qualify for having a mental impairment that would provide her with compensation under NICA. * * * A: The examination doesn't reveal findings one would expect to see with a substantial mental impairment. In order to have a substantial mental impairment, one would anticipate that the child would have severe mental problems, probably be mentally retarded; and on the examination that I performed, it is clear that Trinitee was not mentally retarded. So, you know, I think that was fairly evident from the examination, and that would suggest that she was not eligible for NICA on that basis. * * * Q: . . . Doctor, do you have an opinion as to whether or not that speech dysarthria will be permanent or is that is [sic] something that will subside with time? A: I think it will improve with time. I don't know where it will ultimately end up. I think she will be better as time goes on. While it is clear that Trinitee had a difficult delivery and permanent and substantial motor (physical) impairment, given the record, it must be resolved that Trinitee did not suffer an injury to the brain or spinal cord; and does not suffer from permanent and substantial mental impairment.
