The Issue The issue in this case is whether Respondent, Park Imaging, Inc., was obligated to file a report and pay an indigent care assessment pursuant to Section 395.1015, Florida Statutes, (1991) and, if so, whether Respondent should be fined or otherwise sanctioned for its failure to do so.
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Park Imaging owned and operated a fixed-site diagnostic imaging center in Coral Springs, Florida. Park Imaging also owned and operated a mobile diagnostic service which is described in more detail below. Since 1984, hospitals in Florida have been required to pay an assessment based on net operating revenue to the Public Medical Assistance Trust Fund ("PMATF") for the funding of health care services to indigent persons. See Chapter 84-35, Laws of Florida, codified at Section 395.101, Florida Statutes (1989). Effective July 1, 1991, the statutory requirement to file a report with the AHCA and pay the PMATF assessment was expanded to include certain additional health care entities including "diagnostic imaging centers." See, Section 177, Chapter 91-112, Laws of Florida, codified at Section 395.1015, Florida Statutes (1991). For the health care entities that fell under the 1991 statute, the first reporting period began July 1, 1991 and ran through December 31, 1991. The report was due on or before March 31, 1992 and the assessment was to be paid by April 30, 1992. Park Imaging filed the required report and paid the applicable assessment for its fixed-site diagnostic imaging center. Park Imaging did not file a report or pay any assessment regarding its mobile diagnostic service. Except for diagnostic imaging centers, all of the "health care entities" that were required to file a report and pay an indigent care assessment pursuant to Section 395.1015, Florida Statutes, are licensed or registered by the State. Thus, there was no question as to the need for those entities to comply with the statute. Diagnostic imaging centers, on the other hand, are not licensed or registered and, consequently, there was less certainty as to the types of providers or services that fell into this category. Park Imaging has a separate medical care provider number for its mobile operation. The AHCA has treated the two operations as separate entities and sent Park Imaging separate reporting forms with different identifying numbers for each of the operations. Park Imaging's mobile operation consists of the transportation of ultrasound equipment in vans to private physicians' offices. No services are performed within the vans. The equipment is off-loaded from the van into the physician's office. The physicians utilize the equipment for their patients. All power necessary to operate the equipment is provided by the physician's office. The equipment can be plugged into a standard electrical wall socket in the physician's office. During the period from July 1, 1991 to December 31, 1991, Park Imaging's diagnostic operation provided ultrasound service primarily to cardiac and obstetric patients. In all cases, a physician ordered the test and defined the protocol to be followed during the test. Park Imaging provided technical expertise, including an onsite employee of the company. Park Imaging's technician provided the expertise necessary for running the equipment and executed the protocol established by the physician. The physician was responsible for interpretation of the test results and for managing the outcome of the results of the test and communicating the results to the patient. Section 395.1015, Florida Statutes (1991) defined "diagnostic imaging centers" that were subject to the reporting and assessment requirements as follows: Diagnostic imaging centers that are free- standing outpatient facilities that provide specialized services for the identification or determination of a disease through examination and also provide sophisticated radiological services such as computed tomography scans and magnetic resonance imaging, and in which services are rendered by a physician licensed by the Board of Medicine under Section 458.311, Section 458.313, or Section 458.327, or by an osteopathic physician licensed by the Board of Osteopathic Medical Examiners under Section 459.006, Section 459.007, or Section 459.0075. Park Imaging contends that its mobile operations do not have a "facility" upon which an assessment can be levied under Section 395.1015, Florida Statutes, (1991) (subsequently amended and renumbered as Section 395.7015). Park Imaging also contends that its mobile operations did not provide "sophisticated radiological services" as that term is used in Section 395.1015, Florida Statutes. In this regard, Park Imaging argues that the equipment utilized in the mobile operations was much less sophisticated than many of the other types of services provided in a fixed setting. The evidence established that Park Imaging's mobile operations provided ultrasound services. There is no evidence that Park Imaging's mobile operations provided computed tomography (CT) scans or magnetic resonance imaging (MRI) or any other services other than ultrasound. CT and MRI equipment could not be transported in a van or off-loaded into a physician's office. CT and MRI equipment require special lead-wall shielding in the structure in which they are used. The investment for CT and MRI equipment is significantly higher than ultrasound as are the government reimbursement rates. Park Imaging's decision not to file the report and pay the assessment on its mobile operations was based upon advice of legal counsel. Park Imaging did not attempt to hid or conceal its decision from the AHCA. In several letters to the AHCA in the fall of 1992, Park Imaging advised the AHCA that it did not believe its mobile operations fell within the scope of the statute. By letter dated September 29, 1992 from Carolyn Turner, who at the time was the Administrator of the AHCA's Ambulatory Health Section, to Joseph Burlandi, corporate counsel for Park Imaging, the AHCA notified Park Imaging that it's mobile diagnostic operations were not exempt from the provisions of Section 395.1015, Florida Statutes (1991) and that Park Imaging would be considered delinquent from that time forward if the report was not filed and the assessment was not paid. This position was subsequently reaffirmed in a letter dated October 30, 1992 from Julia P. Forrester, senior attorney for the AHCA, to Joseph Burlandi. In a letter dated November 23, 1992, the Agency once again reaffirmed its position that Park Imaging 's mobile operations fell within the scope of the statute None of these letters from the AHCA to Park Imaging were sent by certified mail. When Park Imaging continued to refuse to file the report and pay the assessment on its mobile operations, the AHCA issued an Administrative Complaint dated February 22, 1993 seeking to impose penalties against Park Imaging for failure to comply with the requirements of what had subsequently been renumbered as Section 395.7015, Florida Statutes, and Rule 59B-6, Florida Administrative Code, for the reporting period July 1, 1991 through December 31, 1991. At the hearing in this matter, Fran Buie, the current Administrator of the AHCA's Ambulatory Health Section, testified that the AHCA has consistently construed and applied Section 395.1015, Florida Statutes (1991) to mobile facilities. She also testified that her review of the Agency's records confirms that a number of mobile units have complied with the statutory requirements. The evidence did not establish the types of services provided by these other mobile operations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Healthcare Administration enter a final order requiring Respondent, Park Imaging, Inc. to comply with the provisions of Section 395.1015, Florida Statutes (1991) and establishing a due date for the report and assessment after which a fine should be assessed in accordance with the applicable statute and rules. DONE and ENTERED this 9th day of February 1994, at Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 9th day of February 1994.
The Issue At issue in this proceeding is whether Respondent, Department of Health ("Department"), acted contrary to the agency's governing statutes, rules or policies, or the bid specifications in its proposed decision to award the contract for Invitation to Bid No. DOH 12-007 (the "ITB") to Intervenor Quest Diagnostics Clinical Laboratories, Inc. ("Quest").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: On July 10, 2012, the Department issued the ITB. The ITB solicited bids for a three-year contract for the provision of clinical laboratory services to the Department and county health departments. The ITB estimated that the winning bidder will perform approximately 861,000 tests annually, which will produce sales of $9.3 million per year. Bids were received from four vendors: LabCorp, Quest, Florida Reference Laboratory, and Ecolab Group Co. The bids were opened on August 17, 2012. The Department found all four bids responsive. The ITB specified that the Department would make a single award based on the grand total of pricing for specified "core tests" for the initial three-year term and for a contingent three-year renewal term. Quest was the lowest bidder, and LabCorp was the second lowest bidder. The sum of Quest's core test pricing for the original three-year term and the contingent three-year renewal term for the relevant laboratory services was $29,555,864.96. The sum of LabCorp's core test pricing for the original three-year term and the contingent three-year renewal term was $36,059,437.52. Section 3.2 of the ITB provided definitions pertinent to the bid, including the following: Mandatory Requirements or Minimum Requirements -- means that the Department has established certain requirements with respect to proposals to be submitted by Respondent.1/ The use of shall, must, or will (except to indicate simple futurity) in this solicitation indicates compliance is mandatory. Failure to meet mandatory requirements will cause rejection of the bid or termination of the Contract/Purchase Order. Minor Irregularity -- used in the context of this solicitation and prospective Contract/Purchase Order, indicates a variation from the proposal terms and conditions which does not affect the price of the response, or give the respondent an advantage or benefit not enjoyed by other Bidders, or does not adversely impact the interests of the Department.2/ Section 4.15 of the ITB, titled "Responsive and Responsible," provided as follows: The Bidder shall complete and submit the following mandatory information or documentation as a part of the Bid Package. Any response which does not contain the information below shall be deemed non- responsive. Licensures-- Centers for Medicare & Medicaid Services, Clinical Laboratory Improvement Amendments, Certificate of Compliance and State of Florida Agency for Health Care Administration Clinical Laboratory License Staffing Plan Attachment I Bid Price Pages-- Attachment III Initial Term & Renewal term (including balance of line minimum volume discount and phlebotomy services Required Certifications, Attachment VI The ITB provided no further clarification regarding the contents of the "Staffing Plan" beyond directing the bidders to "Attachment I" to the ITB. Attachment I was titled "Specifications of Clinical Laboratory Services" and contained six pages of additional specifications regarding services included in the bidders' prices, contractor liability, minimum tasks to be completed by the winning bidder, deliverables, and other requirements. Attachment I included the following specifications regarding staffing: Staffing Levels Each prospective offeror shall include its proposed staffing for technical, administrative, and clerical support including but not limited to a Contract Representative, Quality Control Manager, Staff Pathologist, Project Manager, Technical Support Manager, Technical Support Staff and statewide field representatives. The bidder shall provide hourly rate pricing, as an option to the contract, for an on-site Phlebotomist. The successful offeror shall maintain an adequate administrative organizational structure and support staff sufficient to discharge its contractual responsibilities. In the event the Department determines that the successful bidder's staffing levels do not conform to those promised in the proposal, it shall advise the successful offeror in writing and the successful offeror shall have 30 days to remedy the identified staffing deficiencies. Professional Qualification The successful bidder will be responsible for the staff affiliated with this proposal, insuring that they have the education, any professional licensure or certification which may be required by law, and experience necessary to carry out their duties. Staffing Changes The successful bidder shall staff the project with key personnel identified in the bidder's proposal, which are considered by the Department to be essential to this project. The bidder shall keep the Department notified of key staffing changes that directly impact services related to this solicitation. (Textual emphasis added.) The underscored language required the prospective offerer to include "proposed staffing" and required that the winning bidder staff the project with "key personnel identified in the bidder's proposal." The issue is whether the "Staffing Levels" and "Staffing Changes" provisions quoted above required the bidder to name the specific persons who would fill the "proposed staffing" and "key personnel" positions, or whether it would suffice for a bidder to indicate that it would fill those positions with qualified persons to be named after the bid is awarded. The term "key personnel" is undefined by the ITB. It is unclear from the specifications whether the "key personnel" referenced in "Staffing Changes" is synonymous with the "proposed staffing" referenced in "Staffing Levels." LabCorp interpreted "key personnel" to mean those persons named in the "Staffing Levels" provision: Contract Representative, Quality Control Manager, Staff Pathologist, Project Manager, Technical Support Manager, Technical Support Staff, and statewide field representatives. In its staffing plan, LabCorp provided the names of persons corresponding to each of the "Staffing Levels" positions named in the ITB, including a list of 69 field representatives and 19 sales support persons. The staffing plan submitted by Quest stated as follows: Quest Diagnostics has more than adequate staffing and capacity to meet the needs of the Florida Department of Health. Quest Diagnostics employs a Customer Solutions Manager (contract representative), Quality Assurance Manager (quality control manager), Medical Director and Senior Staff Pathologists, Project Manager, Specimen Processing Manager (technical support manager), Lab Manager (technical support staff), and Account Managers (statewide field representatives). Job descriptions for these positions are attached. Following this statement was a series of detailed job descriptions setting forth the qualifications, experience requirements and responsibilities for each of the named positions. Thus, Quest provided the Department with a set of job qualifications corresponding to the "Staffing Levels" provision of Attachment I to the ITB, but did not provide the name of a specific person to fill any of the positions. The Department concluded that Quest had sufficiently "identified" its key personnel. LabCorp did not provide the detailed job descriptions that Quest provided. For example, Sharon Kaplan is listed as "Project Manager" without further description of her qualifications, experience or duties. LabCorp contends that the ITB required the vendors to name specific persons who would fill those positions. The Department counters that the requirement to "identify" key personnel does not necessarily mean that the bidder must name the persons involved, and that Quest satisfied the ITB's requirement by "identifying" the positions it intended to fill and the qualifications for the positions named in the "Staffing Levels" section of Attachment I. Regina Taylor, the administrative service director of the Department's Bureau of Public Health Laboratories, performed the "responsive and responsible" review of the bids.3/ Ms. Taylor testified that the ITB "left the staffing plan a bit open-ended and left it up to the vendor as to how they would present it to us." The Department found both bids responsive though Quest and LabCorp each took a different approach to describing its staffing plan. Ms. Taylor stated that Quest would be able to name its personnel during the implementation process. She noted that LabCorp's bid provided the names of personnel but offered no detailed information regarding the qualifications or responsibilities of those persons beyond their job titles, whereas Quest provided detailed job descriptions without naming the persons who would fill the jobs. Ms. Taylor was not overly concerned about either company's ability to satisfy the requirements of the ITB. She stated, "Both Quest and LabCorp are national companies, so I'm sure that they have the adequate staff." The "Professional Qualification" section of Attachment I provides that the successful bidder is responsible for insuring that staff is properly qualified and certified. The "Staffing Levels" section allows the Department to review the successful bidder's staffing levels and require the bidder to remedy any deficiencies within 30 days of the Department's written notice. Ms. Taylor testified that the staffing provision section of the ITB was intended to ensure that the winning bidder had within its organization certain critical positions. The Department relied on its own experience in operating the state public health laboratory to identify the staffing requirements of the ITB. LabCorp points out that Quest was the only bidder that failed to submit a list of names of key personnel. Like LabCorp, Florida Reference Laboratory, and Ecolab Group Co. submitted the names of their key personnel. LabCorp also points out that Ms. Taylor's initial reaction to Quest's staffing plan submission was to call it "lame." Ms. Taylor's pronouncement on the quality of the Quest staffing plan was not a part of her review or of the Department's decision. Whether or not it she found it "lame," Ms. Taylor concluded that Quest's staffing plan was responsive to the bid criteria. The ITB requires the bidder to "identify" the "key personnel" with whom it proposes to staff the project. The ITB also states that the Department considers these key personnel to be "essential to this project." However, the ITB does not expressly define the term "key personnel." LabCorp named persons to fill the positions named in the Staffing Levels provision of Attachment I, which it reasonably took to be synonymous with "key personnel" referenced in the Staffing Changes provision of Attachment I. Via its staffing plan, Quest "identified" the key personnel without naming them. Given the lack of precision in these "open-ended" ITB specifications, both LabCorp and Quest made reasonable responses to the staffing requirements. Each chose a different way of "identifying" key personnel. Neither could be found to have clearly failed to comply with the bid specifications. The Department acted reasonably in finding both bids responsive. If LabCorp were correct that Quest's bid response did not comply with the staffing specifications, the question would arise as to whether Quest's deviation from the ITB specifications was a "minor irregularity" that could be waived by the Department. As noted above, the ITB defines "minor irregularity" as a variation from the bid specifications that does not affect the bidder's price or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interests of the Department. LabCorp has not identified any adverse impact on the Department that Quest's failure to name its proposed staff or key personnel would have. Indeed, LabCorp is hard pressed to state what advantage the Department gains by having the vendor name 69 field representatives and 19 sales support persons in its bid. The names are likely meaningless to the Department. "Sharon Kaplan, Project Manager" provides no more useful information than does Quest's description of the education, knowledge, and experience it requires of a project manager. The Department's concern was vendor capability to adequately staff the project, and the Department reasonably concluded that both vendors' bids demonstrated that capability. The basis for award of this bid was the lowest price. There was no scored evaluation of the ITB responses, no ranking of the staffing plans, and no effort contemplated by the Department to investigate the qualifications of the named personnel. The staffing plans submitted by LabCorp and Quest were of equal value to the Department as an indication of the vendors' understanding of the bid criteria and ability to fill the necessary positions. The ITB anticipates that the Department will deal with any staffing problems after the contract is awarded and the successful bidder begins to implement its program. LabCorp fails to identify any price advantage that Quest would gain by not naming the persons who would fill the key personnel positions, and none is apparent. Whether or not the personnel are named in the bid, the key positions would have to be filled at a cost that would presumably be roughly the same for each vendor. Again, the ITB gives the Department the power to raise staffing questions with the successful bidder and to require that problems be remedied within 30 days of written notice. LabCorp contends that Quest's failure to name key personnel gave it an advantage not enjoyed by other bidders. LabCorp argues that it went to the time and expense of preparing a detailed staffing plan, whereas Quest cut corners by submitting a set of generic job descriptions. Quest's method of setting forth its staffing plan may or may not have made its bid preparation easier, but did nothing to improve its competitive position in the bidding process. Quest's commitment to fill the required staffing positions was equal to LabCorp's. LabCorp points out that its own staffing plan included persons who are already on its payroll. LabCorp did not offer an estimate as to the likelihood that all of the approximately 102 persons named in its staffing plan would still be on its payroll by the time the company commenced performing the contract. LabCorp has no way of guaranteeing that all of those persons will be present to perform on the contract. Under the "Staffing Changes" provision, LabCorp would be allowed to substitute other qualified LabCorp employees for the named persons should the need arise. The virtual certainty of employee turnover supports the Department's position that the ITB did not require that bidders undertake the task of naming the employees who would fill the positions set forth in the "Staffing Levels" section of Attachment I. LabCorp argues that Quest's staffing plan gives it the opportunity to delay or avoid altogether hiring the staff necessary to perform the contract to the Department's satisfaction. As noted above, the inclusion of employee names in the bid could not guarantee that the named employees would still be working for LabCorp after the bid award. Quest's commitment to staff the project was no less than LabCorp's. LabCorp's argument suggests that Quest's bid should be rejected because Quest may later choose to breach the contract, which specifically requires the vendor to provide adequate qualified staff. In any procurement, there is always a remote potential that the winning vendor will breach or default. The Department's contract provides remedies for such defaults. In summary, it is found that the bids of both LabCorp and Quest met the requirements of the ITB as to staffing plans. Even if LabCorp's narrow interpretation of the ITB's requirements were correct, Quest's non-conforming response would constitute a minor irregularity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Health enter a final order dismissing Laboratory Corporation of America, Inc.'s formal written protest and awarding the contract for Invitation to Bid No. DOH 12-007 to Quest Diagnostics Clinical Laboratories, Inc. DONE AND ENTERED this 10th day of December, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of December, 2012.
The Issue Whether Petitioner is entitled to a Certificate of Need ("CON") authorizing establishment of an (ophthalmological) ambulatory surgical center in Palm Beach County, Florida. Subordinate issues are: Whether the proposed facility satisfies the CON criteria of Sections 381.494-499, Florida Statutes, as implemented by Respondent, Department of Health and Rehabilitative Services ("HRS) rule and non-rule policy; Whether the proposed facility will result in unnecessary duplication of services, underutilization of existing services and increased health care costs to the community; Whether adequate resources are available for the construction and operation of the proposed facility; and Whether the proposed facility is financially feasible.
Findings Of Fact (Numbering corresponds to numbering used in proposed findings.) Preliminary findings: 1-4. Approved. On issue of compliance with applicable criteria: 1-7. Approved. 8. Approved, with caveat that this is subject to supplying an adequate record basis for the policy at hearing. 9-13 Approved. Approved but no presumption of correctness attaches to HRS earlier or more recent evaluation of the application. See, Boca Raton, supra. Approved. Approved but modified to more accurately reflect that HRS takes HMO's into account, but this factor was not used or relied on (in connection with the non-rule policy or standing alone) as the basis for granting Petitioner's application. Approved. 18-32. Approved, in the sense that an HRS expert witness at hearing offered conclusions as to compliance with each statutory criteria; rejected, in that his conclusions (except for those concerning quality of care, financial feasibility, the inapplicability of some criteria, and the cost advantages of modifying an existing facility instead of constructing a new one) are rejected as unsubstantiated by the facts. On the Issue of Need: 1-8. Approved. Approved. Modified to reflect that this is one estimate among several offered by experts. Rejected as unsupported by the credible evidence of record. Approved. Approved. First sentence, approved, in that this is the stated "attempt" of HRS' challenged non-rule policy. Second sentence, rejected as unsupported by the credible evidence; the profitable performance of outpatient surgery at a physician's office does logically compel a conclusion that his office should be licensed as an ambulatory surgical facility. On the issue of adequate resources: 1-8. Approved. On the issue of financial feasibility: 1-19 Approved. 20. Rejected as argumentative. RULINGS ON INTERVENOR'S PROPOSED FINDINGS 1-4. Approved. 5. Approved except for reference to equipment costs, of which there will be none. 9-16 Approved. 17. Such broad-brush incorporation of all facts asserted in argument is not susceptible to explicit rulings. RULINGS ON POST-HEARING MOTIONS. Intervenor's "Motion to Stay Issuance of Recommended Order" is denied. Intervenor's "Request for Hearing Officer to Take Official Recognition" of the Final Order of Hearing Officer Robert T. Benton II, in consolidated DOAH Case Nos. 85-2962R, 85-2963R and 85-3193R (attached to a "Notice of Supplemental Authority" dated November 1, 1985) is granted. The order is made a part of the record of this proceeding. A final order entered by another hearing officer of the Division of Administrative Hearings the authenticity of which is not in question, is an appropriate document to be accorded official recognition. See, Health Quest Realty XII v. HRS, 10 FLW 1729 (Fla. 1st DCA July 16, 1985, pet. for reh. pending). COPIES FURNISHED: Eric B. Tilton, Esquire 104 S. Monroe St. Tallahassee, Florida 32301 Theodore E. Mack, Esquire 1323 Winewood Blvd. Tallahassee Florida 32301 William B. Wiley, Esquire Post Office Box 2174 Tallahassee, Florida 32316
Recommendation Based on the foegoing it is RECOMMENDED: That Petitioner's application for a CON authorizing establishment of an ambulatory surgical facility at his offices in Palm Beach County, Florida, be DENIED. DONE and ORDERED this 15th day of January, 1986, in Tallahassee Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986.
The Issue At issue herein is whether Petitioner, Ellen Moldoff, is qualified for a supervisor's license in microbiology under Section 10D-41.24(10), Florida Administrative Code.
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the following relevant facts are found. On February 27, 1979, George S. Tylor, Jr., B.A., Clinical Laboratory program, advised Ellen Moldoff, petitioner, that her application for licensure as a supervisor was being denied under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, in that, "You do not have the 60 semester hours and the 10 years experience required under Section 10D-41.24 (10), of the Florida Administrative Code." Petitioner timely appealed the Department's denial of her application for a supervisor's license in microbiology. During the course of the hearing, Petitioner acknowledged the fact that she failed to satisfy either the sixty-semester-hour requirement or its equivalent in quarter or semester hours (two years of academic study) in an accredited college or university or that she possessed the ten years pertinent experience requirement as set forth in Chapter 10D-41.24 (10), Florida Administrative Code. However, Petitioner introduced four letters of recommendation written by employees and other supervisors who were familiar with the Petitioner's skills and abilities. It suffices to say that they all spoke highly of Petitioner's qualifications and highly recommended her to take the supervisor examination in microbiology. Petitioner, during the hearing, alluded to numerous persons whom she considered less qualified than she who were permitted to take the supervisory examination based on an overstatement of qualifications in their applications for licensure as a supervisor. Finally, Petitioner felt that her honesty alone prevented her from being permitted to take the supervisory examination Petitioner expressed her opinion that based on her observation of the clinical supervisors and the duties to which she is assigned, she considered herself as qualified, if not more qualified than those she observed. Respondent does not question Petitioner's ability to fulfill supervisory functions; however, it hastens to add that it has no authority to waive the qualifications for supervisory laboratory personnel as set forth in Chapter 10D-41.24(10), Florida Administrative Code.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner's appeal of the Respondent's determination that she is ineligible to take the supervisory examination be DENIED. DONE and ENTERED this 6th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Ellen Moldoff 3690 Inverrary Drive Lauderhill, Florida 33319 Harold Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. He applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology, histology, and chemistry (special). On March 25, 1980, Respondent denied Petitioner's application for technologist's license for the reason that Petitioner has not completed the sixty semester hours required by Section 10D-41.25(9), Florida Administrative Code. Petitioner holds a high school equivalency diploma. He has taken courses at Chicago City College, Southeast Junior College, Roosevelt University, Olive-Harvey, and the U.S. Army medical school. He is a graduate of the American Academy of Medical Technology; however, the Academy is not an accredited school. He holds a Medical Technologist`s Certificate from the Registry of the American Medical Technologists. He has been employed as a technologist for over twelve years, principally at Michael Reese Hospital and Medical Center, and is licensed as a medical technologist in the State of Illinois. Based upon his college transcripts, the Respondent has given Petitioner credit for forty-eight hours of academic work and as advised the Petitioner that he need obtain only twelve additional credits for satisfying educational requirements. An approved course of study is available to him at Miami-Dade Community College. Petitioner has not taken the U. S. Public Health Service proficiency examination in clinical laboratory technology.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 16th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Yehuda Weinbaum 536 Euclid Avenue Miami Beach, Florida 33139 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Recommendation The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows: Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology. (There was no agreement as to paragraph 3) Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause." In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS, that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Steven Rowitt 5966 N.W. 28th Street Sunrise, Florida 33313 Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 4. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 6 and 7.I Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 14. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Rejected as argumentative. Adopted in Finding of Fact 16. Rejected as legal argument. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.
Findings Of Fact Petitioner has 13 semester hours of science credits in college. She is also certified with the American Society of Clinical Pathologists. Petitioner's sole contention is that her certification is the equivalent of the seven remaining semester hours of academic instruction she needs to reach the 20 hours of science courses required for licensure by Rule 10D-49.68, Florida Administrative Code.
