The Issue The issue presented for decision herein is whether or not Respondent engaged in the conduct set forth in the preceeding paragraphs, and, if so, what, if any, disciplinary action is appropriate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the state agency charged with regulating the practice of optometry pursuant to chapters 455, 463, and 20, Florida Statutes. The Respondent is licensed to practice optometry in the state of Florida, having been issued license number OP-0001674. Respondent shares office space with Robert's Optical Center at 23 East Prospect Road in Fort Lauderdale. On or about January 8, 1986, Respondent performed an examination of visual analysis upon DPR's investigator Allison Lichtenstein. Lichtenstein used the alias, Allison Smith. During the course of the examination of Allison Lichtenstein Respondent failed to perform visual field testing. In addition to Respondent's failure to conduct a visual field test of Lichtenstein, Respondent also failed to perform the following minimum procedures: Pupillary examination, biomicroscopy and extra-ocular muscle balance assessment. At Lichtenstein's request, Respondent did not perform tonometry. After the Respondent's examination of Lichtenstein, she paid the examination fee to Robert Mann, an optician with Robert's Optical Center, Inc. Mann provided Lichtenstein with a copy of her prescription written on the Respondent's prescription form. (Petitioner's Exhibit 3). Mann is not a salaried employee of Respondent. Prior to Respondent's examination of Lichtenstein, Respondent was aware that Mann was writing prescriptions on his prescription pad. Despite this knowledge, Respondent allowed Mann to continue this practice and Respondent continues to allow Mann to collect fees and dispense receipts on his behalf. On or about January 8, 1986, Respondent performed an examination for visual analysis upon Petitioner's investigator, Mary Pfab. Pfab used the alias, Mary Parker. Dr. Mary Pfab is licensed to practice optometry in Florida, Tennessee, Virginia and North Carolina. She is currently engaged in the practice of optometry in Virginia. Pfab is familiar with the minimum procedures for vision analysis as required by rule 21Q-3.007, Florida Administrative Code. She was tendered and accepted as an expert witness in the practice of optometry. At the time of the examination, Pfab was wearing rigid contact lenses. Pfab told Respondent that she was then 28 years old and was taking the medication Ibruprofen. During Respondent's examination of Pfab, the following minimum procedures for vision analysis were not performed: pupillary examination and visual field testing. At Pfab's request, tonometry was not performed on her by Respondent. At the conclusion of Respondent's examination of Pfab, Pfab paid Robert Mann the examination fee. Respondent gave Pfab a copy of her prescription and Mann provided Pfab with a receipt on Respondent's prescription pad. Mann wrote Pfab's prescription on his pad. (Petitioner's Exhibit 2b). On or about April 2, 1986, Petitioner's investigator, Allison Lichtenstein revisited Respondent's office and conducted an investigation. She found that Respondent did not have a tangent screen, which is necessary to perform visual field testing. Corrective action has subsequently been taken by Respondent, and Respondent has now purchased a tangent screen. Respondent now includes visual field testing in routine eye examinations. Dr. David Chambers, a Florida licensed optometrist who has been engaged in the practice of Optometry in Florida since 1974, was accepted as an expert witness in the practice of optometry in Florida. Chambers testified as to the consequences which could result to a patient when an optometrist fails to perform the various required minimum procedures. A pupillary examination detects neurological problems produced by tumors, aneurysms or other diseases, particularly neurosyphilis. An optometrist who does not perform the pupillary examination could miss these problems and patients accordingly will not be referred to a neurologist as they should be. Visual field testing indicates the integrity of the eye's retina and detects a large family of diseases including glaucoma, pigmentation degeneration, diabetes and cataracts. Failure to performs visual field testing could result in the optometrist's missing these types of diseases which affect the visual system and the controlling nerve systems. Visual field testing and tonometry are two of the three procedures which detect glaucoma. The importance of performing visual field testing is increased when tonometry is not performed at the patient's request. Biomicroscopy detects lid and corneal diseases including allergic conjunctivitis, bacterial conjunctivitis, herpes, chlazions and aureola. These lid and corneal diseases could not be detected, diagnosed and/or referred for treatment by an optometrist who fails to perform biomicroscopy. The extraocular muscle balance assessment determines how well the two eyes work together. By failing to perform the extraocular muscle balance assessment, an optometrist could fail to diagnose a phoria or tropia problem. A phoria problem is a tendency for the eye to turn and a tropia problem is an actual turning of the eye. Failure to detect and treat these problems could result in the patient having headaches, seeing double, or using only one eye. John C. Danner is a real estate appraiser engaged in appraising commercial real estate property since 1975. Danner was received as an expert appraiser in commercial real estate. He is familiar with market rental values of commercial property in the Fort Lauderdale/Broward County area. Surveys conducted by Danner to determine the market rent for space near the Respondent's office reveal that the market rent for similar space is between $90 to $100 per month. Additionally, it would cost an optometrist between $300 to $400 per month to lease the type of equipment which has been provided by Robert's Optical to Respondent. Robert's Optical provides Respondent with both his office space and equipment for $50 per month. By the inducement of paying only nominal rent for office space and equipment, Respondent has engaged in the practice of optometry with Robert's Optical Center, Inc. Respondent does not maintain full and total responsibility and control of all files and records relating to patients. Rather, an optician with Robert's Optical Center provides patients with prescriptions written on the Respondent's prescription forms, and Respondent's patients pay their examination fees to an optician affiliated with Robert's Optical. Respondent charged Lichtenstein $25 for an "eye exam" (Petitioner's Exhibit 3) and charged Pfab $35 for a "contact lens exam" (Petitioner's Exhibit 2b). These examinations were not complete in that a number of the required minimum procedures were omitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent's license to practice optometry be suspended for three (3) months, and upon the conclusion of the suspension Respondent be placed on probation for a period of twelve (12) months under such terms and conditions as required by the Board of Optometry. An administrative fine be imposed upon Respondent in the amount of twenty-five hundred dollars ($2,500) payable to Petitioner within thirty (30) days after the entry of the Petitioner's Final Order. DONE and ORDERED this 4th day of November, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 4th day of November, 1987. COPIES FURNISHED: Robert Newell, Jr., Esquire Phillip B. Miller, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Edward Paul Kreiling, Esquire Parkway Professional Building 6151 Miramar Parkway Miramar Florida 33023 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Case History On April 10, 1987, Petitioners filed a Petition for Formal Administrative Hearing and for Administrative Determination of Invalidity of a Rule as described in the Issues statement to this Order. On April 20, 1987, Intervenors requested intervention. On April 20, 1987, Respondent Board moved to dismiss the petition filed by the Petitioners and to stay the proceedings. On April 27, 1987, oral argument was held on the petition to intervene, the motion to dismiss, and the request to stay proceedings. On April 29, 1987, an order was entered which granted the intervention, and denied the motions to dismiss and to stay. The case was originally scheduled to be heard on May 5 and 6, 1987. Upon stipulation and agreement of the parties to waive the requirement set forth in Section 120.56, Florida Statutes, calling for the conduct of the final hearing within 30 days of assignment of this matter to a Hearing Officer, the case was rescheduled for hearing to be held on June 11 and 12, 1987. The First District Court of Appeal in Dept. of Professional Regulation, et al. v. William J. Broussard, M.D., et al., Case Nos. 87-238/87-260, issued an order staying the conduct of the hearing to be held on June 11 and 12, 1987. The stay was eventually dissolved as a result of an order entered by the First District Court of Appeal on July 23, 1987, in the aforementioned appellate court cases. The administrative case was then returned to an active status before the Division of Administrative Hearings and scheduled for hearing on dates including October 5 and 6, 1987, the eventual dates for hearing. Prior to the commencement of the hearing, Intervenors sought action on a motion to dismiss the Florida Medical Association as a petitioner. That motion was denied. Another preliminary matter related to the September 2, 1987, request for production of documents from the physician petitioners. On October 2, 1987, Petitioners had objected to that request for production. On October 5, 1987, Intervenors had filed a motion to compel physician petitioners to produce certain economic information and financial records related to allegations of standing. Prior to the commencement of the hearing on October 5, 1987, and in the face of remarks by counsel for the Petitioners, it was determined that the physician petitioners did not intend to advance a claim of economic injury in the sense of a change in economic circumstances in their practices with the advent of the licensure of certified optometrists. As a consequence, the requested production became a moot question and the motion to compel was denied. Enabling Legislation In 1986, the Florida Legislature reenacted the Optometry Practices Act, as Chapter 86-289, Laws of Florida. Section 6 of that Act set forth the opportunity for practitioners licensed as certified optometrists to administer and prescribe topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions of the human eye and its appendages. The specific provisions which establish the requirements for certification are announced in Section 463.0055(2), Florida Statutes (1986 Supp.) as: The board shall issue certification for the administration and prescription of topical ocular pharmaceutical agents in the diagnosis and treatment of ocular conditions to licensed practitioners who have completed the appropriate forms as required by the board and who have submitted proof of fulfilling all of the following requirements: Successful completion of at least 110 hours of approved transcript-quality coursework and clinical training in general and ocular pharmacology, as determined by the board. However, no course in pharmacology shall be approved by the board unless the course is conducted by an institution which has facilities for both the didactic and clinical instructions in pharmacology and which is accredited by a regional or professional accrediting organization that is recognized and approved by the Council on Post-secondary Accreditation or the United States Department of Education. Completion of at least 1 year of supervised experience in differential diagnosis of eye disease or disorders as part of the optometric training or in a clinical setting as part of optometric experience. Successful completion of an examination approved by the board which tests knowledge of general and ocular pharmacology with particular emphasis on the topical applica- tion of pharmaceutical agents for the eye and the side effects of such pharmaceutical agents. A related provision at Section 463.002(9), Florida Statutes (1986 Supp.), describes "transcript-quality" as follows: (9) "Transcript-quality" means a course which is in conjunction with or sponsored by a school or college of optometry or equivalent educational entity, which course is approved by the board and requires a test and passing grade. Section 463.0055(3), Florida Statutes (1986 Supp.), pertains to the payment of fees associated with becoming a certified optometrist. It states: (3) The board shall establish by rule an application fee, not to exceed $250, and an examination fee, not to exceed $250, for certification pursuant to this section. Section 463.0055(4), Florida Statutes (1986 Supp.), establishes a formulary committee which will assist DPR in identifying those topical ocular pharmaceutical agents that may be utilized by the certified optometrist in his or her practice. The decision to enact legislation providing for certification of optometrists to use topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions in the human eye was passed in a setting in which optometrists within Florida had historically been involved with the administration and prescription of diagnostic and therapeutic drugs. The overall facts of this case demonstrate that this legislation was designed to specifically set forth the framework for allowing the employment of those pharmaceutical agents or drugs in the future. Adoption of Rule 21Q-10.001, Florida Administrative Code, etc. In an attempt to effectuate the purposes of Section 463.0055(2), Florida Statutes (1986 Supp.), the Board adopted Rule 21Q-10.001, Florida Administrative Code. The rule was first noticed for adoption in Vol. 12, No. 38 of the Florida Administrative Weekly, published September 19, 1986. The rule was adopted by the Board and filed with the Secretary of State on October 31, 1986. The effective date of Rule 21Q-10.001, Florida Administrative Code, is November 20, 1986. In the issue of the Florida Administrative Weekly described in the previous paragraph, the Board published amendments to the rule pertaining to fees which is Rule 21Q-6.001, Florida Administrative Code. Those amendments were filed with the Office of the Secretary of State on October 31, 1986. They became effective on November 20, 1986. Within that set of amendments on fees, the Board created a $100 application fee "for certification as a certified optometrist" and a $250 examination fee "for certification as a certified optometrist." The text of Rule 21Q-10.001, Florida Administrative Code, states: 21Q-10.001 Application for Certification. To be certified to administer and prescribe topical ocular pharmaceutical agents a licensed practitioner must submit a completed application form provided by the Board, remit the application fee for certification speci- fied in Rule 21Q-6.001(9), and demonstrate compliance with the following requirements: Successful completion of at least 110 hours of Board approved transcript quality coursework and clinical training in general and ocular pharmacology conducted by an accredited institution which has facilities for both didactic and clinical instruction in pharmacology. The institution must document the applicant's successful completion. The Board will accept coursework and clinical training in general and ocular pharmacology received by the applicant during his basic optometric curriculum or at postgraduate courses if this coursework and training was provided by a Board approved school of optometry or equivalent educational entity; Completion of at least one (1) year of supervised experience in differential diagnosis of eye diseases or disorders. The one year of supervised experience shall be received either during optometric training or in a clinical setting as part of optometric experience. The requisite one year of supervised experience in a clinical setting may be obtained in an academic or non- academic environment. For the purpose of this rule, one year of supervised experience in an academic setting is understood to mean three (3) quarters or two (2) semesters and one (1) year of supervised experience in a non-academic setting is understood to mean a twelve month period; Successful completion of a Board approved examination testing knowledge of general and ocular pharmacology with particular emphasis on the topical application of pharmaceutical agents. In order to be approved by the Board, the examination must have been administered in a Board approved school of optometry or at the conclusion of a post- graduate course conducted by a Board approved school of optometry, and the examination must be approved by the Board. Board Activities in Certifying Optometrists In preparation for implementing the statute, in July 1986 Board Chairman Edward K. Walker, O.D., appointed Jon S. Jacobs, O.D., as an ad hoc committee of one to begin gathering information from the schools and colleges of optometry. Dr. Jacobs' mission was to gather information from the schools and colleges to present to the Board so that it could determine whether the level and quality of the education, curriculum, examinations and supervised clinical experience in differential diagnoses received by optometry graduates of the various schools satisfied the criteria contained in Section 463.0055(2), Florida Statutes (1986 Supp.). Licensed practitioners of optometry in Florida have been educated at eighteen different schools and colleges of optometry. Dr. Jacobs contacted either the president or dean of each of these institutions in order to obtain information for the Board's consideration. On August 1, 1986, Dr. Jacobs wrote each of the schools and colleges. In his letter Jacobs cited the language of the statute and asked the schools to respond to the different sections of the law by providing the Board with information concerning whether and when graduates of their institution satisfied the statutory criteria. He requested specific information from the schools concerning how many clock hours of coursework in general and ocular pharmacology they required and in what years they required them. He inquired whether or not students had to pass the pharmacology courses in order to graduate. He asked that the schools provide the Board with the pharmacology examinations given to their graduates. Dr. Jacobs also requested that the schools provide the Board with the information which would establish the beginning year in which the institution required of their graduates one year of supervised experience in differential diagnosis of eye disease or disorders. In addition to requesting information concerning the school's basic curricula leading to the O.D. degree, Dr. Jacobs also requested information on postgraduate and continuing education coursework offered by the institutions. The Board interprets the 110-hour requirement as referring to "clock hours" and not to "credit hours." The Board has determined that the accreditation of a school is evidence of its having facilities for both the didactic and clinical instructions in pharmacology. The optometric schools in question are accredited. All of the schools responded with information from which the Board could determine if and when the school met the 110 clock hour requirement and the requirement of one year of supervised experience in differential diagnosis. All of the schools provided information to the Board which indicated that their students were required to pass the pharmacology courses in order to graduate and therefore satisfied the "successful completion of at least 110 hours" criterion. Follow-up correspondence and telephone conversations with the presidents or deans were necessary to clarify the Board's request and verify the school's response. Many of the schools and colleges expressed concern about the confidentiality of the examinations which the Board had requested. The Board assured the schools that it would not be reviewing the exams for any purpose other than complying with its statutory responsibilities. The information was submitted to the Board in various forms by the schools and colleges and included catalogs, lists of pharmacology courses, and narrative or individual curriculum descriptions of pharmacology courses offered by the institutions. All of the schools and colleges submitted examinations to the Board, but not all examinations given in the relevant courses. Some of the schools submitted as many as eight examinations. The exams submitted were administered by the schools at various times. Many of the schools submitted information which indicated that they maintain computerized banks of examination questions from which they draw randomly in constructing examinations. In some instances, the Board received representative examinations because all of the exams the school had ever administered were not available. With the assistance of the Board's executive director, Dr. Jacobs compiled the information he had gathered from the various schools in chart form and presented it to the Board for its consideration. The ad hoc committee of one composed of Dr. Jacobs evolved into a three member certification committee. In August of 1986, Peter Liane, O.D., became chairman of the Board and appointed Dr. Jacobs as chairman of the Board's Certification Committee. Dr. Liane also appointed himself and Dr. Walker to the committee. The mission of the certification committee was to determine the minimum requirements of the statute, further organize the information Jacobs had gathered, and recommend to the Board those who were to be certified or not based upon documentation and evidence of what they deemed to be compliance with the statute. In reviewing the information it had gathered, the Board viewed the statutory criteria as requiring it to answer three questions: (1) Have applicants for certification received the requisite quantity and quality of coursework?; (2) Have applicants obtained the requisite differential diagnosis experience?; and (3) Are applicants safe to prescribe and administer topical ocular pharmaceutical agents based on passage of a Board approved examination which tested their knowledge of pharmacology and the side effects related to topically applied pharmaceutical agents? The Board reviewed the curriculum and the catalogs and information it received from the schools of optometry. The Board was satisfied about the accuracy of the information it received from the schools and colleges based upon the Board's knowledge of the programs in the schools, including experiences of four members of the Board who sit on the boards of trustees of various colleges of optometry. The Board relied upon the information, statements, and representations they received from the deans and colleges concerning when their graduates complied with certain statutory criteria. The Board determined that it would accept education, training, and examinations from the schools and colleges of optometry and other equivalent entities in order to satisfy statutory criteria for certification. When asked to describe in general terms what the Board was looking for in reviewing the exams to determine if the coursework in pharmacology was in compliance with Section 463.0055(2)(a), Florida Statutes (1986 Supp.), Board members identified that they reviewed examinations to determine whether the course content, as set forth in the exam instrument, was at least 75 percent related to general and ocular pharmacology. The 75 percent standard was chosen by the Board as an arbitrary number which represented "a substantial portion of the test." A number of courses and their exams were not recommended for approval on the basis that the examinations lacked enough questions related to pharmacology to meet this requirement established by the Board. Although the deans and colleges assured the Board that their school's coursework satisfied the pharmacology criterion, it was the Board's understanding that the Legislature intended for the Board to "approve" the coursework by looking at it to determine the quality and level of that coursework. The Board was of the view that, even though an applicant took a course for the requisite number of hours, unless the Board specifically approved the course and determined that it was of sufficient quality, the course would not satisfy the first statutory criterion. Therefore, the Board reviewed the material each institution submitted on an individual basis, and approved portions of that material as satisfying the criterion for coursework. The Board believed that the best way to evaluate the quality of a course was to look at the examination which was required in that course. The Board reviewed each of the examinations which they received from the schools or colleges. Although the Board did not review each and every exam administered by all schools, it did review exams from all schools. Each Board member received copies of the exams. The exams were reviewed and discussed question by question at public meetings. The Board conducted its review based on the expertise of its members who are practicing optometrists with a knowledge of optometric education and professional practice. The statutory term "successful completion" was determined by the Board to mean successful passage of an examination for the course. The deans of the schools certified to the Board that their graduates were required to have taken 110 hours of coursework in pharmacology and had passed an exam in such coursework. With regard to the "110 hours," the Board determined that even if an applicant indicated that he or she had received that quantity of coursework, at least 75 percent of the 110 hours (83 hours) would need to be satisfied in a core course. None of the exams which the Board reviewed for the 83 hour core courses were "take home" exams. Some examinations for which partial credit was given were of that type. In satisfying the statutory criterion of "transcript-quality coursework," the Board determined whether the coursework was given by a school or college of optometry or equivalent entity, and whether the student had taken and passed an examination on the coursework. The Board also determined that the coursework which was submitted in satisfaction of the 110 hour requirement, in fact, included "clinical training." The Board made this determination by observing that information in the curriculum presented by the various schools and colleges. As to the specific clinical training criterion for certification, Dr. Jacobs assumed that the schools "automatically would have their clinical training in their curriculum." Also, Dr. Jacobs indicated that, because the schools were accredited, "we could then assume that these were the quality schools and, therefore, would be administering quality coursework and quality testing." The courses which were approved by the Board as having satisfied the 110 hours of "pharmacology" criterion were courses which dealt with the properties, chemistry, actions and uses of drugs. The courses approved also dealt with the effects of drugs on the body and on the eye, the diagnostic use of drugs, the therapeutic use of drugs, and the side effects of drugs. The Board also determined that the pharmacology coursework was "conducted by an institution which has facilities for both the didactic and clinical instruction in pharmacology." The Board did not approve courses taught by individuals, but only recognized courses conducted by colleges of optometry with both the physical facilities and faculty expertise in teaching and research necessary to provide didactic and clinical instruction in pharmacology. The Board also determined that each approved course was conducted by an institution accredited by the Council on Post-secondary Accreditation. This information was readily accessible to the Board because of the Board's continuing responsibility to review the accreditation status of various optometry schools in order to enforce the Board's existing requirement that applicants for licensure in Florida be graduates of accredited schools. Accreditation, however, did not mean a school's coursework was automatically accepted as satisfying the statutory criterion. Of the eighteen accredited schools of optometry recognized for licensure purposes in Florida, coursework from only sixteen were approved for certification purposes. Two accredited schools, the University of Montreal and Interamerican University of Puerto Rico, were disqualified because they did not meet the statutory requirements for certification. However, the Board believes that the statutory and rule requirement that approved coursework must be "conducted by" an accredited institution which has facilities for both didactic and clinical instruction in pharmacology does not require that such courses be taken at that institution or at a location that, in fact, has didactic and clinical instruction facilities. The Board also reviewed and approved continuing education courses and postgraduate courses which could be used in partial satisfaction of statutory criterion number one. The Board went through the same process with regard to reviewing and approving the examinations for the continuing and postgraduate courses. However, unlike the groups of representative exams which the Board was sent by schools and colleges, the Board reviewed each and every one of the continuing education and postgraduate examinations. Although the Board had previously reviewed and approved the continuing education course exams when the courses were approved for continuing education credit, the Board reviewed the exams a second time to determine if they satisfied the certification criterion concerning appropriate coursework. The Board has approved approximately forty continuing education, seminar, extension and postgraduate courses. The Pennsylvania College of Optometry continuing education course referred to as "PCO 701" is an example of this type of course approved by the Board. The "PCO 701" course was designed for practicing optometrists. The instructors for the course were Ph.D.s in pharmacology and ophthalmologists from the Jefferson Medical School in Philadelphia. The instructors flew in to several areas of Florida every weekend to conduct the three month continuing education course. As to the requirement of one year of supervised experience in differential diagnosis, the Board has determined that this may be obtained in either an academic or a non-academic environment. In order to determine compliance with the "one year of supervised experience" criterion, the Board requested the schools and colleges to provide it with the year in which the institution required at least one year of clinically supervised training in differential diagnosis of their graduates. The catalogs and curricula submitted by the schools to the Board also indicated that clinical training was provided as part of pharmacology coursework. The third criterion requires an examination approved by the Board. The Board did not prepare or administer an examination in order to determine an applicant's compliance with this criterion. Concerning the requirement of successful completion of an examination which tests knowledge of general and ocular pharmacology, the rule implements the Board's policy decision to not prepare and administer a separate pharmacology exam for certification purposes. The Board has determined that examinations administered in optometry school or in postgraduate courses suffice. In order to determine whether applicants satisfied the third criterion, the Board reviewed and approved the examinations which applicants had been required to pass either at the end of their coursework in optometric school or at the end of their postgraduate education. Since 1972, the Board has tested for the side effects of pharmaceutical agents as required by criterion three on the pharmacology portion in its general licensing examination, to become a "licensed practitioner." The pharmacology portion of the Board's exam is a prerequisite to obtaining licensure in Florida. Part I of the examination tests ocular pathology and pharmacology. Applicants must obtain a score of 70 percent or better in each subject in Part I of the exam in order to obtain a passing grade. Part II of the exam consists of the clinical portion and a pharmacology/ocular disease portion. An applicant must obtain a score of 80 points or better in order to secure a passing grade on the clinical portion of the practical exam. The National Board of Examiners in Optometry Education also tests ocular pathology, ocular pharmacology, and treatment and management of ocular disease. The NBEO exam tests: Clinical science which measures a candidate's application of the fundamental knowledge base to the prevention, diagnosis, management, and treatment of clinical conditions within the scope of optometric practice and consists of the following subject areas: systemic conditions; ocular disease/trauma. The International Association of Boards of Examiners in Optometry examination on the treatment and management of ocular disease (IAB examination) is an examination which must also be passed by Florida applicants in order to obtain general licensure. The IAB examination is designed to assess the cognitive skills deemed essential in utilizing pharmacologic agents for therapeutic purposes. A passing score is 75. The subject areas tested on the IAB examination include selection of the therapeutic regime; dosage and/or duration; contraindications/side effects; and the follow-up prognosis. The Board of Optometry approves the Florida examinations for general licensure. This function includes reviewing all of the examinations, working with DPR staff in the design of those examinations, actual selection of examination questions, and determination of the scope of the exam. The Board has approved all of the general licensure examinations which have been administered subsequent to 1972. Although Board members have been aware that since 1972 applicants for general licensure have been required to pass the Board approved examination in pharmacology which tests for side effects, the Board has never specifically stated or adopted a policy that this examination satisfies the third criterion to become a certified optometrist. While the Board seems satisfied that the post-1972 licensure exam would be sufficient to satisfy that criterion, the Board relied on and approved the exam which the applicant took either in school or at the end of their postgraduate training as the exam which satisfied the third criterion. Eight hundred seventy three (873) optometrists had been certified in Florida at the point of final hearing. Each of the 873 optometrists who have been certified were existing licensed practitioners in Florida at the time they were certified. Paradoxically, though the Board did not rely on the general optometric examinations for certification, it did rely on the 1972 and forward examination results in classifying the successful candidates for certification. The Board related that 570 of the 873 certified optometrists took the Florida licensure exam in 1972 or thereafter. Three hundred three (303) took the Florida licensure exam prior to 1972. Two hundred sixty three (263) of the 303 took and passed the PCO 701 course for which the Board reviewed each examination and determined that it satisfied the third criterion because it tested for the use of topical application of pharmaceutical agents and side effects. Of the remainder of the applicants who were examined for general licensure prior to 1972, 37 took the PCO 750-B course which was another course in pharmacology for which the Board had reviewed exams and found that they satisfy the third criterion. Of the remaining three applicants, one took the New England diagnostic pharmacology course and one took the Indiana DBF course in ocular pharmacology. The Board reviewed and approved each of these exams as having satisfied the third criterion. The lone applicant remaining of the 873 was a 1971 graduate from the University of Houston. The Board did not review the actual exam which the University of Houston applicant took, although the Board reviewed a number of representative exams which were sent by the University of Houston. Based on its review of the representative exams provided by the University of Houston, the Board determined that the one applicant for certification who had taken an examination which tested for side effects, but which actual exam was not approved by the Board, was sufficiently qualified to demonstrate compliance with the third criterion. The Chairman of the Board personally knows the single candidate from the University of Houston and has a personal knowledge of his practice abilities and competence. The Application/Certification Form The application form, which is challenged as an unpromulgated rule, sets out an activity section for the benefit of the Board which would indicate if a candidate has been approved for certification, the assigned certification number if approved, and other items related to this review. The application form contains a place where the applicant sets forth his or her name and the mailing address. The application form identifies the fact that $100 fee for application is required. The form asks that the candidate name the school or college of optometry which he or she attended and the year of graduation, and to provide and 8 1/2 X 11 inch photocopy of the diploma received from that school. The application form provides for the applicant's signature which is to be notarized. The application form in its second page gives further instruction and cites the text of Rule 21Q-10.001, Florida Administrative Code, and Rule 21Q-10.002, Florida Administrative Code. The latter rule deals with the administration and prescription of topical pharmaceutical agents. The application form in its substance, set out in Sections 1 through 4 of the first page, establishes the exact formula for obtaining certification to practice optometry, beyond the payment of fees and other preliminary matters which have been addressed in these factual findings. In effect, there are four alternatives by which a candidate may obtain certification. This has formed the basis for examining the credentials of candidates since the inception of the certified optometrist program within the State of Florida. The only changes that have been made concern the fact that the application form has been expanded upon through the recognition of additional postgraduate courses which could count toward the obtainment of 110 hours of approved coursework in general and ocular pharmacology. The form does not contemplate the idea of independent testing to address the third statutory criterion. The details of the four alternatives are as set forth below: 1. I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which his certified to the Board that graduates received 110 hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination (463.0055(1)(a)(c)). At least one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of the optometric training for graduation (463.0055(1)(b)). Optometrists who graduated from the following schools in the year listed below, or in subsequent years, have been approved by the Board as meeting all of the requirements of 463.0055(1)(a)(b)(c) F.S. PLEASE CHECK THE APPROPRIATE BOX, IF THIS IS YOUR CATEGORY. Univ. of Alabama 1973 Univ. of Houston 1975 U. of CA at Berkley 1977 Illinois College 1976 Southern California 1979 Indiana Univ. 1976 Ferris State College 1979 Univ. of Missouri 1984 Pennsylvania College 1976 Southern College 1976 Waterloo, Canada 1976 New England College 1977 Northeastern State 1983 Ohio State 1972 Pacific University 1977 State Univ., New York 1975 I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which has certified to the Board that graduates received 88 or more hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination. At least one year of supervised experience in differential diagnosis of eye disease or disorders which included as part of the optometric training for graduation. I graduated from the school checked below and have attended the following approved courses, as indicated, to meet the 110 hour requirement for certification. SCHOOLS Univ. of Houston 1966-74 90 hours Illinois College 1974-75 102 hours Waterloo, Canada 1972-76 84 hours COURSES (attach verification of passing the exam) FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/83 6 hours FOA/Univ. of AL-10/85 6 hours FOA/Univ. of AL-10/86 6 hours FOA/PA College-5/78 6 hours FOA/PA College-10/84 6 hours I am applying to become a certified optometrist based on 88 or more hours of approved transcript quality courses in general and ocular pharmacology, which included clinical training and passing a Board-approved examination. At least one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of my optometric training for graduation. The following courses have been approved by the Board as meeting the criteria above: (Check any courses you attended and attach proof of passing the exam.) PA College Course 750B 110 hours Illinois College Courses 1986-87 85 hours PA College Course 701 98 hours PA College Course 701 105 hours Florida Optometric Assoc/ PA College 1/31/87 110 hours If applicable to meet the 110 hours, the following approved courses may be included in your documentation for certification: FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/85 6 hours FOA/PA College-5/78 6 hours FOA/Univ. of AL-10/85 6 hours FOA/PA College-10/84 6 hours FOA/Univ. of AL-10/86 6 hours I do not fit into any of the above categories. However, my educational coursework and clinical training meet all three (3) requirements of 463.055(2)(a)(b) and (c). I have attached a detailed report and all required documentation as necessary. Sections 1-4 within the application form are based upon the information gathered by Dr. Jacobs from the schools of optometry and concerning postgraduate coursework. The Certification Committee reviewed the information which Dr. Jacobs had gathered, and made a recommendation to the Board pertaining to how the information should be used. Dr. Jacobs presented a suggested format for the application form to the Board's office based upon the charts he prepared which summarized the information he had gathered. The Board's office modified Dr. Jacobs' suggested format and sent it to the Board members for their approval. After the Board approved both the use of the information gathered and the format of the application, the Board office prepared the application form for printing and distribution. By including the information concerning the school and year attended by the applicant, the Board was able to avoid having to search through existing Board licensure files which already contain this information and also enabled the Board to refer to the data which the Board had already gathered and analyzed, without the necessity to do it for each applicant. The Board did not accept the form alone in its decision-making process. The associated documentation was reviewed by the Board prior too approval for certification. Applicants were disqualified if they did not provide proper documentation. The Certification Committee reviewed all individual applications and made recommendations to the Board. Each application was reviewed individually by two different committee members. If the two committee members disagreed on certifying the applicant, the third member of the committee reviewed the application and cast the deciding vote concerning whether to recommend certification or not to the Board. The Board then voted on the application and decided whether or not to certify the applicant. The form was designed to act as a facilitator. Nonetheless, it is the substantive standard for review in all instances. The application form implements the Board's previous decision to accept the substantive information which it had been provided. Within the form, Section 1 applicants are those optometrists relying solely on their graduation from one of sixteen optometry schools in the United States and Canada on or after the year designated on the form for that school. Section 2 applicants are those optometrists relying on graduation from the University of Houston (1966-1974), Illinois College of Optometry (1974-1975), or University of Waterloo (1972-1976), in conjunction with completion of courses sponsored by the Florida Optometric Association. Section 3 applicants are those optometrists seeking certification based on completion of one post-graduation "core course" of 83 hours or more, and additional continuing education courses necessary to achieve the 110-hour total. Section 4 was created for applicants who may not fit in any of the three previously-described sections, but who may be able to establish their qualification for certification through other means. An example of use of the form is that when an applicant checked Section 1 on the form indicating the school and year of graduation, the Board reviewed the diploma to determine whether the graduation date on it coincided with the date of graduation, and the school checked in Section 1. Having previously determined that graduates of that institution subsequent to the year indicated on the form satisfied the statutory criteria, the Board used the form to confirm the applicant's credentials in the request for certification. The determination as to whether or not to certify the applicant was made after the Board examined the application form and verified that the applicant had graduated from that particular school by checking the diploma, signature, and notary certificate. Section 3 of the form shows eleven courses. As mentioned before, there are other courses that since have been determined by the Board to be acceptable towards the 110 hour total. These courses were not listed on the form because the Board was unaware of them at the time the form was printed. An applicant under Section 3 who wanted to claim credit for courses which were not listed, could write in those courses and send documentation from the school in the form of a letter or transcript which indicated that the applicant had been tested on the course and had passed the exam. The Board would then confirm that the course was given and would review the exam for course quality. With respect to applicant who checked Section 3, the Board also determined satisfaction of the one year of supervised clinical experience requirement by referring back to the information which had been provided previously by the optometry schools. For Sections 2 and 3 applicants, the continuing education courses relied on to supplement optometric school coursework or post-graduation "core courses" were all sponsored by the Florida Optometric Association in conjunction with optometric schools. Section 4 of the application form afforded applicants who did not fit categories 1, 2 or 3 an opportunity to demonstrate that they satisfied the statutory criteria. For instance, one applicant who applied under this category was a pharmacist before he was an optometrist. He did not fit into any of the other categories because his coursework was obtained in pharmacy school, and he wished to rely on that training to satisfy requirements for certification. A review of the minutes of the Board meetings from the amendment of Chapter 463 in June, 1986, through August, 1987, indicates that the certification form was not adopted as a Board rule. Dr. Walker, Board member, in his testimony confirmed that the application form was not adopted as a Board rule. The certification form-was first used by the Board at the first meeting at which it certified optometrists, April 11, 1987. It certified 455 optometrists at that first meeting; 200 more at its May 9, 1987 meeting; 174 more at its July 6, 1987 meeting; and 45 more at its August 28, 1987 meeting. Of the continuing education courses for which information is available, the "smaller courses" of 10 hours or less were offered in a "seminar" setting, with faculty from optometry schools, most notably UAB, Pennsylvania, Southern College, New England, Indiana, and Houston. In addition to the Florida Optometric Association, other non-school entities such as the Southern Council of Optometrists, the American Academy of Optometry, the Southwest Florida Optometric Association, the Northeast Florida Optometric Society, and the Bay Point Anterior Segment Symposium, Inc., sponsored some of these continuing education courses. Some of the approved continuing education courses described in the form were given at resorts, hotels, or meeting centers. Legislative Intent Petitioners' Composite Exhibits Nos. 6 and 7 were offered in an attempt to describe legislative intent related to Senate Bill 3-B, which forms the basis of the amendments to Chapter 463, Florida Statutes, which took place in 1986. This included Section 463.0055, Florida Statutes (1986 Supp.). Having considered those exhibits and the proposed facts of the parties, the intent which the Legislature had in the passage of Section 463.0055, Florida Statutes (1986 Supp.) cannot be gleaned. Therefore, conclusions about the meaning of that legislation must be made based upon a literal reading of its text, together with other provisions within Chapter 463, Florida Statutes. In a related vein, the Board of Optometry and the Intervenors have suggested facts concerning an April 15, 1987, Senate Committee on Economic, Community and Consumer Affairs request for information from the State of Florida, Department of Professional Regulation, on the topic of the Board of Optometry's implementation of the certification process. In particular, reference is made to that committee's request concerning which schools and coursework satisfied the 110 hour and one year of supervised clinical experience requirements contained within the statute. The committee also wanted documentation of the procedures and standards used in approving examinations which satisfied the requirement for examination set forth in the third criterion. The Secretary of DPR requested the Board of Optometry to prepare the report and it was prepared and delivered to the Senate Committee. That report generally describes the activities of the Board of Optometry in its efforts at certification, as announced in the fact findings herein. Because the Senate Committee did not respond to the report made by the Department of Professional Regulation, the Intervenors and the Board urge that the silence by the Senate Committee somehow recognizes the acceptability of the procedures employed by the Board of Optometry in its certification process. Likewise, the Intervenors and the Board of Optometry seem to take some comfort in the fact that no further legislation was passed in 1987 pertaining to Section 463.0055(2)(c), Florida Statutes (1986 Supp.), which dealt with the need to have the Board prepare an independent examination document as opposed to the technique which has been employed of using other examination instruments to satisfy the terms of that statutory reference. The exact position of the Senate Committee concerning this dispute and the need for independent testing to address the third criterion is not described in this record, nor can its silence or that of the full Legislature in its 1987 Session be seen as creating any inference about the proper construction to be given the language within Section 463.0055, Florida Statutes (1986 Supp.), and especially Section 463.0055(2)(c), Florida Statutes (1986 Supp.). Standing Ophthalmologists and optometrists who practice their professions in Florida are to a significant extent offering similar health care. In particular, the opportunities provided the certified optometrist for practice coincide with part of the practice available to ophthalmologists. Petitioner, Florida Society of Ophthalmology, is an organization concerned with, among other things, the educational interests of ophthalmologists and the quality of eye and health care delivered to the patients of ophthalmologists. It is also concerned on behalf of its members about the quality of eye care and health care of Floridians treated with medication by optometrists. Petitioner Florida Medical Association has the same concerns, responsibilities and purposes. Petitioner, Tully C. Patrowicz, M.D., is a physician and ophthalmologist practicing in Mount Dora, Florida, since 1972. Dr. Patrowicz is a Board-certified ophthalmologist since 1974, and is also a past officer and president of Petitioner Florida Society of Ophthalmology. He is currently a member of both Florida Society of Ophthalmology and Florida Medical Association. Petitioner, William J. Broussard, M.D., is a physician and ophthalmologist who has practiced in Melbourne, Florida, since 1967. He is a Board-certified ophthalmologist since 1966. Dr. Broussard is also a member and former office of Petitioner Florida Society of Ophthalmology. Florida Optometric Association is a not-for-profit organization with membership comprised of licensed optometrists in Florida. The purpose of Florida Optometric Association is to promote and protect the general public in ensuring the availability of high quality optometric services at affordable prices. Approximately 850 of the 1,100 practicing optometrists in Florida are members of Florida Optometric Association. Approximately 650 certified optometrists are members of Florida Optometric Association. Florida Optometric Association participates in administrative proceedings, legislative activities, and court litigation on behalf of optometry. The president of Florida Optometric Association has authorized retention of counsel for those purposes with the permission of the Executive Board and a vote of the membership. Florida Optometric Association members who are certified optometrists are subject to Rule 21Q-10.001, Florida Administrative Code. Florida Optometric Association participated in the legislative activities which resulted in the Optometric Practice Act of 1986. Dr. Howard J. Braverman, O.D., is President of the Florida Optometric Association and is a certified optometrist engaged in the active practice of optometry in Florida. If the certified optometry rule is invalidated, it will have a significant impact on the practice of certified optometry by Dr. Braverman and by the members of the Florida Optometric Association who are certified optometrists. It would also significantly affect their patients. Petitioner Baxter H. Byerly, M.D., and Intervenor Frank A. Broome, O.D., did not appear at the hearing and no indication was given concerning the exact nature of their claims as petitioner and intervenor, respectively. Respondent State of Florida, Board of Optometry, is an agency of the State of Florida within the Department of Professional Regulation with authority to regulate the practice of optometry. Sections 463.001, 463.003, 463.005, Florida Statutes (1986 Supp.). Activities subject to the Board's regulatory and rulemaking authority include standards of practice of optometry, the administration and prescription of topical ocular pharmaceutical agents, and the certification of optometrists to administer and prescribe such drugs in their practice. See Sections 463.005(1)(a) and (g), and 463.0055, Florida Statutes (1986 Supp.). Respondent State of Florida, Department of Professional Regulation, is an agency of the State of Florida that generally assists the various professional regulatory Boards, such as the Respondent Board of Optometry, in the examination and licensure of professionals. See Section 455.217, Florida Statutes.
The Issue Whether Petitioner should be given a passing grade for the pharmacology portion of the Optometry Licensure Examination given on August 1999.
Findings Of Fact Jackson took the optometry licensure examination given on August 5-8, 1999. The examination consisted of three parts: clinical, laws and rules, and pharmacology. Jackson failed the pharmacology portion of the examination with a score of 65.70. The minimum passing score for the pharmacology portion is 70. The pharmacology portion is a practical examination that tests the candidate's competency in diagnosing and treating ocular diseases. The pharmacology examination consists of a series of case studies followed by questions of varying point values. Each case study is worth seven points. The questions for each case study require the candidate to correctly identify a differential diagnosis, a second differential diagnosis, and a final diagnosis and to answer two follow-up questions, giving the best answer. Jackson challenged the scores that she received for the answers to questions 86, 31, 33, 85, 7, 9, 80, 111, 113, 66, and 69. Question 86 dealt with a differential diagnosis for a patient who was complaining of tenderness in one eye. An initial scraping and cytology showed some organisms but no hyphae or gram negative cocci. Jackson listed a homograft rejection as the first differential diagnosis. Her answer was incorrect because the case study did not present the characteristics of a homograft rejection and did give indicators of a bacterial infection. The correct answer was "F," and Jackson gave "C" as the answer. Questions 31 and 33 dealt with a case study of a patient who was complaining of some tearing, feeling like something was in her eye when nothing was there, light sensitivity, and redness in her right eye. For question 31, Jackson answered that a differential diagnosis was gonococcal conjunctivitis, which is incorrect because the patient did not have a severe purulent discharge, which is characteristic of gonococcal conjunctivitis. The correct answer for question 31 was "G," and Jackson gave "L" as the answer. Question 33 was for the final diagnosis, and Jackson again answered gonococcal conjunctivitis. The answer was incorrect because of the absence of a severe purulent discharge. The correct answer to question 33 was "A," and Jackson answered "L." Question 85 dealt with a patient who was complaining of decreased vision in one eye. The applicant was asked to pick the next step in the management of care to be taken if the appropriate medical care had been unsuccessful. Jackson incorrectly indicated that the answer was retinal focal laser therapy. Such treatment would be appropriate for a patient who had diabetic macular edema but not for the diagnosis of the patient in question. The correct answer to question 85 was "A," and Jackson answered "H." Questions 7 and 9 dealt with a patient complaining of floaters and decreased vision. Question 7 called for a second differential diagnosis. Jackson answered rheumatoid arthritis, which is incorrect because the patient was experiencing chronic granulomatous uveitis. The correct answer to question 7 is "I," and Jackson answered "E." Question 9 asked the candidate to identify the testing which would be appropriate for the correct final diagnosis. Jackson correctly identified the final diagnosis, but did not correctly identify the appropriate treatment. Jackson's answer gave the appropriate test for rheumatoid arthritis, which was not the final diagnosis. The correct answer was "B," and Jackson answered "G." For question 80, Jackson stated that she bubbled in the wrong answer. She bubbled in "F," and the correct answer was "E." The responsibility for bubbling in the correct answer rests with the candidate; thus, "F" is considered an incorrect answer even if it was bubbled in by mistake. Questions 111 and 113 dealt with a patient complaining of intermittent haloes and blurred vision. Question 111 asked for a differential diagnosis. Jackson answered acute angle closure glaucoma, which is incorrect because the patient did not present the characteristics of acute angle disclosure glaucoma, particularly with an intraocular pressure of 27. The correct answer was "C," and Jackson answered "A." Question 113 asked for the final diagnosis. Again Jackson answered acute angle closure glaucoma, which is incorrect. Questions 66 and 69 dealt with a patient who had a dark shadow which obscured the vision in his right eye six hours before his visit to the doctor. Question 66 asked for a differential diagnosis. Jackson answered traumatic vitreous hemorrhage, which is incorrect because there was no evidence of trauma given in the case study. The correct answer was "F," and Jackson answered "K." Question 69 asked for the immediate treatment or management which would be indicated for the right eye. Jackson answered vitrectomy, which is incorrect because a vitrectomy would not be performed on a hemorrhage which had been present for only six hours. The correct answer is "D," and Jackson answered "F."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Karen Jackson failed to earn a passing score of 70 on the pharmacology portion of the optometrist licensure examination given in August 1999. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 31st day of July, 2000. COPIES FURNISHED: Karen Jackson Post Office Box 7157 West Palm Beach, Florida 33405 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The charges against Dr. Morton J. Schomer allege the following factual violations: Failure to display his license at the location of his practice of optometry; Failure to have an entry sign at the location of his practice indicating he was an optometrist practicing optometry; Failure to have all equipment required in the office where he engaged in the practice of optometry; and Failure to perform all tests and record the results as required for two patients, Edward Leswing and Steven Bachen. Dr. Schomer was afforded the opportunity by the Board of Optometry for an informal conference to discuss the allegations. This conference was conducted. Dr. Schomer requested the Board for a formal hearing, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57, Florida Statutes. Prior to the formal hearing the Respondent moved to dismiss the proceedings and in support thereof asserted factual matters contrary to those alleged in the Administrative Complaint. Respondent asserted that he was working for Dr. Ortelio Olazabal, was under the doctor's control and supervision, and was not engaged in the practice of optometry. Therefore, Respondent asserted that he was not required to display his license or to have an entry sign, and the Board lacked jurisdiction over because his practice with Dr. Olazabal was governed by Chapter 458, Florida Statutes, Medical Practice Act. This motion presented what were essentially affirmative defenses. The motion was denied by an order dated November 19, 1980. Respondent was afforded the opportunity to present evidence in support of his factual assertions at the formal hearing. Respondent also moved for a continuance. This motion was also denied by the order mentioned above. Respondent moved for an order in aid of discovery. The order cited above provided specific dates for the parties to complete various portions of prehoaring discovery and disclosure. The parties were able to comply with the schedule established, and the formal hearing was begun on December 12, 1980. The hearing could not be completed on that date and was continued on February 25, 1981, after which the parties stipulated to submit proposed findings within 30 days. Motions for Directed Verdict by Respondent were made and denied at the close of Petitioner's case and at the conclusion of the hearing. Proposed findings of fact were filed by Respondent. Petitioner did not file proposed findings. The Hearing Officer has read the proposed findings of fact submitted by the Respondent. To the extent that the following Findings of Fact do not contain the proposed findings, they have been rejected as not being relevant to the issues or not being based upon evidence adduced at the hearing, or as being inconsistent with evidence which the Hearing Officer deems more credible.
Findings Of Fact Counts I, II and V Dr. Morton J. Schomer is an optometrist licensed by the Florida Board of Optometry for approximately the past five years. Until just prior to November, 1979, he was a practicing optometrist in Ohio. At that time he moved to Hallandale, Florida. Dr. Schomer responded to a newspaper advertisement by Dr. Ortelio Olazabal and was hired by Dr. Olazabal to work as an optometrist at 518 NE 167th Street, North Miami, Florida. Dr. Schomer practiced optometry at that address three days per week from late November, 1979, until February, 1980. During that time Dr. Schomer did not have his Florida license displayed and did not have an entry sign at that address indicating he was engaged in optometric practice. (Transcript, Volume II; December 12, 1380 - Page 236.) Count III In January of 1980, Dr. Schomer examined Edward Leswing, a 57-year-old male who is an investigator for the Department of Professional Regulation. Dr. Schomer used a keratometer and phoropter to examine Leswing's eyes together with a projector and eye charts. Dr. Schomer asked Leswing about his health and conducted a field test (Transcript, supra - Pages 242 and 254). Dr. Schomer prescribed soft contact lenses and reading glasses for Leswing based on this examination. Dr. Schomer accurately recorded or caused to be recorded the results of the examinations conducted and pertinent personal data. Dr. Schomer did not use a tonometer or retinoscope or perform an unaided visual acuity test on Leswing. (See Leswing's testimony and Dr. Michael Kondell's comments on Leswing's record, Dr. Kondell's Deposition - Pages 39 and 40.) In the opinion of Dr. Michael Kendell (Deposition - Page 59) Dr. Schomer's examination was insufficient to prescribe soft contact lenses for Leswing. Dr. Kondell is a physician specializing in ophthalmology. He is board eligible and is accepted as an expert in diseases of the eye and their treatment, and the examination of the eye for prescribing contact lenses and glasses. Count IV At the time Leswing was examined, Dr. Schomer used a keratemeter, a phoropter, and projector and eye charts, and these items were present in the office (Transcript, Volume II; December 12, 1980 - Pages 238 and 239). Dr. Schomer used his hands to conduct a field test (Transcript, supra - Page 254). At the time Leswing was conducting a covert investigation and did not ask Dr. Schomer to produce or identify any of the equipment present in the office. Dr. Schomer kept his hand-held equipment in a wooden box which he covered with a clipboard. Count VI Steven Bachen, a 14-year-old male, was seen by Dr. Schomer during January, 1980. Dr. Schomer accurately recorded or caused to be recorded the results of his examination of Bachen and his pertinent personal data. Dr. Schomer performed a keratometric and retinoscopic examination of Steven Bachen. (See Petitioner's Exhibit 12 and Deposition of Dr. Michael Kondell - Pages 36 through 38.) Dr. Schomer also used a phoropter to examine Steven Bachen's eyes (Transcript, Volume II; December 12, 1980 - Page 157). Dr. Schomer prescribed soft contact lenses for Bachen as a result of this examination. In the opinion of Dr. Kondell, Dr. Schomer's examination was sufficient to prescribe soft contact lenses for Steven Bachen (see Dr. Michael Kondell's Deposition - Pages 43 and 58). Count VII During the examination of Steven Bachen, Dr. Schomer used a phoropter, keratometer, projector and charts, and retinoscope. These items were present in the office. Count VIII At the time Dr. Schomer examined Steven Bachen he conducted a keratometric examination of Bachen. Bachen's glasses were removed when this examination was performed. Count IX No evidence was introduced concerning prior violations of Chapter 463, Florida Statutes, by Dr. Schomer. The only evidence presented of violations of Chapter 463, supra, was with regard to Counts I through VIII above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law thee Hearing Officer recommends that Dr. Morton J. Schomer receive a letter of reprimand and be placed on probation for a period of one year, during which time his premises and records will be subject to examination by the Board of Optometry to ensure that he is in compliance with all applicable statutes and rules. DONE and ORDERED this 1st day of May, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 1st day of May, 1981. COPIES FURNISHED: Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael B. Udell, Esquire 2020 NE 163rd Street, Suite 204 North Miami Beach, Florida 33162 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the Respondent is subject to discipline for engaging in practice beyond the scope of opticianry.
Findings Of Fact At all times material to this action, Dory Gomez-De Rosas has been a licensed optician in the State of Florida, holding License DO 0001724. She was an owner of and employed as a licensed optician at Care Optics, located at 1057 North Homestead Boulevard, Homestead, Florida. On May 16, 1989, Patient #1 went to Care Optics to have her eyes examined after having made an appointment about a week earlier. A complete eye examination was performed on Patient #1 by the only woman who was present in the office. That examination included a glaucoma test. Patient #1 intended to buy her glasses elsewhere. She paid $30 for the examination. Patient #1 received a business card from the woman who performed her eye examination which contained measurements. Those measurements were findings of the refractive indices for Patient #1, which would be used in making eye glasses. The information provided on the back of the card, however, was incomplete. The information was not written on a prescription form, as would an ordinary prescription nor was it signed by anyone. A prescription must be signed by an optometrist or opthalmologist. Patient #1 took the card to her regular optician, Mr. Stellabotte. Because he could not prepare glasses from the information on the back of the card, he attempted to contact the opthalmologist or optometrist who seemingly had prescibed the lenses for Patient #1 at Care Optics. There was no opthalmologist or optometrist at Care Optics when Mr. Stellabotte called. The Department delivered a subpoena duces tecum to Care Optics to obtain the records of Patient #1, but Care Optics was unable to locate any records for Patient #1, and provided an affidavit to that effect. Patient #1 returned to Care Optics and received a refund of the $30 she had paid. She then was examined by another optometrist in Homestead and had the prescription filled by Mr. Stellabotte. Patient #1 identified the Respondent as the woman who performed the total eye examination and glaucoma test on her at Care Optic after seeing a photocopy of the examination photograph which Respondent had provided to the Board as part of her licensure application as an optician. After viewing the Respondent at the hearing, it is obvious that the licensure photograph which Patient #1 identified is a photograph of the Respondent. The Respondent engaged in the diagnosis of the human eyes by performing a glaucoma test on Patient #1, and by determining the refractive power for Patient #1's eyes during the examination which the Respondent performed at the office of Care Optics on May 16, 1989. She also was guilty of deceit by leading Patient #1 to believe that she was an optometrist who was competent to examine her eyes. The Respondent attempted to prescribe lenses for Patient #1 by providing the Respondent with a business card which contained on its back her findings of refractive powers for correction of Patient #1's eyes. This is not an ordinary way to provide a prescription for lenses.
Recommendation It is recommended that a Final Order be entered by the Board finding the Respondent guilty of the violation of Sections 484.013(3), Florida Statutes, and 484.014(1)(f) and (m), Florida Statutes, that a fine of $1,750.00 should be imposed; that the Respondent should be suspended from the practice of opticianry for a period of 90 days, and should be placed on probation for a period of one year. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of January, 1991. WILLIAM R. DORSEY, JR. 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 16th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4970 Rulings on findings proposed by the Department: All findings by the Department have been adopted, although they have been edited in the findings of fact made here. Rulings on findings proposed by the Respondent: 1 and 2. Adopted in Finding 1. Rejected. The photograph was sufficiently identified as that of the Respondent, and could be readily determined to be a photograph of the Respondent after seeing the Respondent at the hearing. See, Finding 6. Rejected as unnecessary. The identification by Patient #1 of the Respondent was sufficient. The photocopy of the photograph in the Department's files was sufficient for use by the patient in identifying the Respondent. Rejected as insufficiently persuasive. Patient #1 was able to recall, in a general fashion, the test given to her by the Respondent. They were not the type of tests which an optician could perform. Patient #1's testimony has been accepted. See, Finding 4. Patient #1 obviously went to Care Optics to obtain a prescription, since she always intended to buy her glasses from Mr. Stellabotte. Accepted in Finding 3. The information written on the back of the card did not constitute a prescription, but it was given to Patient #1 by the Respondent at Care Optic. Rejected. The testimony of Mr. Stellabotte as to the nature of the card he received from the Respondent is not fully accepted. The card which Patient #1 received from the Respondent is exhibit #3, and any testimony to the contrary by Mr. Stellabotte is the result of imperfect recollection. Rejected as unnecessary. The identification of the photograph of the Respondent from the Department's licensure files adequately identified the Respondent as the person who performed the eye examination. It was not necessary for the Department to produce any handwriting analysis. The testimony of Patient #1 is sufficient on this point. Rejected as argument. The testimony of Patient #1 identifying the Respondent is sufficient. Rejected as unnecessary. Rejected as inconsistent with the testimony of Patient #1. She had her eyes examined. The information she received from the Respondent was not derived from a mechanical analysis of the glasses she then had. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Garfield & Associates 3500 North State Road 7, Suite 333 Fort Lauderdale, Florida 33319 LouElla Cook, Executive Director Department of Professional Regulation Board of Opticianry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner took the optometry examination administered to candidates for certification for licensure to practice optometry in the State of Florida in July of 1980. The written portion of the optometry examination consisted of four sections or sub-parts; ocular pathology, theory and practice, pharmacology and laws and rules. The ocular pathology section consisted of 100 written and 20 slide questions. One and one-half hours were allotted for completion of the ocular pathology section. Thirty minutes was permitted for the completion of the slide portions of the ocular pathology sub-part. The written and slide portions of the ocular pathology section were separated by the administration of the theory and practice sub-part of the optometry exam, which consisted of one hundred items with one and one-half hours permitted for completion. The Petitioner completed the ocular pathology section of the exam and received a final grade of 69. A minimum passing grade of 70 was required by the Respondent on that portion of the optometry exam. Ocular pathology was the only portion of the exam which the Petitioner failed. An item analysis of the items on the ocular pathology portion of the examination was undertaken by the Department of Professional Regulation staff subsequent to administration of the examination. The item analysis undertaken was in conformity with standard post-test procedures for determining the validity of test items. Following the item analysis review, members of the Board of Optometry who formulated the exam received the item analysis results and recommended to the Board that credit be given to all candidates, including Petitioner, for each item on the ocular pathology portion of the examination which was determined to be invalid. As a result of the Board's authorization, credit was given to all candidates for 22 percent of the examination. The ocular pathology portion of the examination had a higher error or adjustment rate than the other subparts of the examination which ranged from 2 percent to 15 percent. The points awarded by the Board on the ocular pathology portion of the exam to compensate for invalid test questions were awarded in a manner commensurate with accepted testing techniques for evaluating test questions. Petitioner's score on the ocular pathology portion of the exam was adjusted from 46 to 58 points following the Board's first authorized analysis. Following a second regrading that the Board authorized to compensate for questions eliminated as a result of examinee review, the Petitioner's score on the ocular pathology portion was again adjusted upward from 58 to 69 points. The method utilized by the Department in reviewing examinations authorizes credit for questionable exam items. Such an approach to testing results in scores which are adjusted upward as test items are eliminated. This is a liberal approach to testing philosophy which effectively resolves doubts regarding a correct answer in favor of the examinee. Petitioner completed the ocular pathology portion of the examination but did not have sufficient time to review all his responses before turning in the test. Petitioner did not, however, participate in a review of his examination when given an opportunity to do so by the Department within thirty (30) days after the announcement of test scores.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying the Petitioner's request that his score pathology portion of the July, 1980 optometry examination be adjusted to reflect a passing grade. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH, 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 30th day of July, 1981. COPIES FURNISHED: Robert D. Newell, Esquire OERTEL AND LARAMORE, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32302 Robert E. McGuire, O.D. 2530 Stern Drive Atlantic Beach, Florida 32233
Findings Of Fact At all times material hereto, Respondent was a licensed medical doctor in the State of Florida having been issued License No. 0020340. Respondent specializes in the practice of ophthalmology, and is board-certified in that specialty. As indicated above, Respondent has been charged in a three-count complaint with various violations concerning his treatment of three patients. For purposes of clarity, the Findings of Fact section of this Recommended Order will, therefore, treat each such patient separately. ETTA ROSE Respondent first saw Etta Rose as a patient on March 17, 1980. At that time Ms. Rose gave a history of having had "floaters" in both eyes, in her left eye for three months and in her right eye for approximately the past three years. She also indicated a history of hypertension of five years duration. On her initial visit, Ms. Rose informed Respondent that she had last had an eye examination in December of 1978, but could not recall the name of the examining doctor. Upon physical examination on the initial visit of March 17, Respondent determined that the patient had intraocular pressures of 25 in her right eye and 26 in her left eye. In this connection, intraocular pressures of from 12 to 21 are considered roughly normal in a general patient population, and any readings above those levels are generally considered to be elevated. In addition to the above-noted intraocular pressures, Respondent also determined-on this initial visit that the patient had asymmetric nerve heads, the nerve heads in her left eye being markedly larger than those in the right. This degree of difference, according to Respondent's determination, could not be attributed to a congenital defect. Since this degree of differential in the size of the optic nerve heads occurs in less than one percent of the population, this fact, taken together with the patient's elevated intraocular pressures, resulted in Respondent's diagnosis of probable glaucoma. As a result of Respondent's physical findings as outlined above, together with the lack of information from prior treating physicians, Respondent determined that in order to avoid potentially irreversible damage to the patient's eyes, he needed to administer as high a dosage of medication to bring down the patient's intraocular pressures as rapidly as possible. Accordingly, on March 17, 1980, Respondent prescribed a one percent solution of pilocarpine to be administered to the patient's eyes every four hours. Pilocarpine is an old conservative glaucoma medication used specifically to reduce intraocular pressures. A one percent pilocarpine solution' is a relatively light dosage. Therefore, on March 20, 1980, Respondent increased the dosage of pilocarpine to two percent every four hours, and on March 24, 1980, again increased the dosage of pilocarpine to four percent every four hours. Additionally, on March 28, 1980, Respondent added the drug timolol to his attempted medical management of the patient's pressures. It is not medically advisable to start a patient directly on a four percent pilocarpine solution because of the distinct danger of side effects, such as headaches and dimness of vision. As a result, Respondent utilized a process known as "titrating," by starting the patient on a lowered dosage of medication, and rapidly bringing the patient to a maximum dosage, watching carefully during this period for evidence of side effects. The patient in this case apparently experienced no such ill side effects. During his second office visit with the patient on March 20, 1980, Respondent performed a gonioscopy to evaluate the angle where the patient's cornea touched near the iris. This procedure showed the patient to have wide open angles and no scarring. Respondent therefore concluded that the patient suffered from chronic open-angle glaucoma, which was consistent with his initial diagnosis on the first visit of March 17, 1980. On March 20, 1980, the patient's intraocular pressures were 21 in the right eye and 23 in the left eye. During the entire course of his treatment of this patient, Respondent saw the patient in his office on the following dates: March 17, 20, 24, and 28, 1980; April 3, 8, and 22, 1980; May 20, 1980; and June 24, 26, and 27, 1980. Because of the asymmetry in the patient's optic nerve heads, her elevated pressures, and her lack of medical history to demonstrate the progress, if any, of glaucoma, Respondent determined it to be necessary to develop as accurate a profile on the patient as quickly as possible. The purpose of these office visits, which occurred at different times during the day, was to approximate a "diurnal curve." A diurnal curve is a method for determining fluctuating intraocular pressures of a patient, and is customarily obtained by admitting the patient to a hospital, and checking pressures in the patient's eyes approximately every two hours over a 24-hour period. The purpose of the procedure is to obtain an accurate 24-hour reading of the patient's pressures, since pressures within the eye can fluctuate markedly during different times of the day. Respondent determined admitting Ms. Rose to the hospital to be impractical, and set upon a course of seeing her in his office on several rather closely spaced days at different times of the day in order to get a more accurate understanding of her condition. By the time Respondent last saw the patient in his office on June 26, 1980, the patient was on a four percent pilocarpine solution four times a day, .5 percent timolol, and diomox b.i.d., and her pressure in her left eye still remained 26. At that time Respondent determined that he had the option of continuing to carry the patient on these dosages of medication, in which case he determined that the patient would probably go on to progressive damage, or, alternatively, surgical intervention. Respondent determined this amount of medication to have maximized medical therapy and, as a result, recommended a trabeculectomy to attempt to lower the patient's pressures. This surgical recommendation was made on June 27, 1980, at which time Respondent invited the patient to seek a second opinion, recommending that she consult ophthalmologists at the Bascom Palmer Eye Institute at the University of Miami Medical School. The patient sought such an opinion, and elected not to undergo the surgery recommended by Respondent. As a result, the office visit of June 27, 1980, was the last time Respondent saw Etta Rose as a patient. Respondent's diagnosis of the patient at the last visit was chronic open-angle glaucoma that was uncontrollable on medical therapy. The patient was apparently seen by an ophithalmologist on May 15, 1981, and again in January of 1982. The physician who last examined the patient determined that the patient, although she had slightly elevated intraocular pressures, "probably" did not have glaucoma, but should be followed as a "glaucoma suspect" because of the difference in the size of her optic nerves. The record in this cause establishes that there are three parameters generally accepted for diagnosing glaucoma: intraocular pressures; visual fields; and the appearance of the optic nerve. As previously indicated pressures above 21 are generally considered elevated. Throughout Respondent's treatment of Ms. Rose it appears that her intraocular pressures were at all times elevated, and that the optic nerve heads in her left eye were markedly larger than those in her right eye. The record also demonstrates that she evidenced no visual field loss while being treated by Respondent or thereafter. A trabeculectomy is a surgical procedure used in the treatment of glaucoma as a last resort when all other treatment modalities have been exhausted. There is some degree of danger inherent in the procedure, and it is associated with a high failure and complication rate, and can lead to the formation of cataracts. As indicated above, Respondent is charged in the Administrative Complaint with requiring Ms. Rose to come to his office an excessive number of times, with prescribing excessive medication for her condition, and with recommending unnecessary surgery. With respect to the charge of requiring excessive office visits, it is specifically concluded that Respondent exercised that level of care, skill, and treatment which was reasonable under the circumstances given the fact that the patient had elevated intraocular pressures, asymmetric optic nerve heads, and was unable to furnish Respondent with a history that would justify less aggressive treatment than the methods employed by Respondent. Because of these factors, Respondent reasonably determined that the patient should be seen often during the initial stages of therapy particularly in order to evaluate fluctuations in the patient's intraocular pressures. At final hearing, Petitioner adduced credible testimony from two board-certified ophthalmologists that Respondent prescribed excessive medication to Ms. Rose over his period of treatment of that patient. Specifically, these physicians took exception to Respondent's increasing the dosages of pilocarpine from one percent to a four percent solution over an approximately 11-day period. These physicians felt the better practice would have been to proceed more slowly to determine how the patient's pressures were reacting to medication. Equally credible, however, was testimony from the Respondent himself and from another board-certified ophthalmologist that the procedure known as "titrating" whereby the patient is started on a lower dosage and worked to a higher dosage over a short span of time was also reasonable medical treatment under the circumstances. The patient was seen frequently so that any side effects from this increase in medication could be monitored by Respondent. In addition, because of the high degree of difference in the size of the optic nerve heads in the patient's two eyes, Respondent reasonably assumed that glaucoma, if it were present, had progressed to such an extent that it was necessary to get the patient's intraocular pressures under control as rapidly as possible. Respondent reasoned that, should the pressures be brought under control at a higher level of medication, the medication could always be cut back, whereas, if he proceeded more slowly irreversible damage might occur in the interim. This record simply reflects that reasonable ophthalmologists might disagree with respect to the proper administration of medication in this context and, as a result, it cannot be determined from this record that Respondent acted unreasonably in his course of prescribing medications to Etta Rose. Finally, Petitioner adduced credible testimony at final hearing that the trabeculectomy recommended by Respondent was improper because Respondent had not reached maximum medical management of the patients condition in that he had not utilized oral diuretics or epinephrine as treatment modalities. The reasoning here is that until maximum medical management proves unsuccessful in controlling a patient's pressures, a remedy as drastic as a trabeculectomy should not be utilized. Petitioner's witnesses testified that based on the patient's marginally elevated pressures and the fact that she demonstrated no visual field loss, surgical intervention was improper. Again, equally credible testimony from both the Respondent and another board-certified ophthalmologist called as a witness by Respondent establishes that an equally reasonable interpretation of the data available to Respondent was that the patient was, indeed, under maximum medical management, and her intraocular pressures had not responded appropriately to this treatment regime. Further, the record also establishes that it is very unusual to find the degree of difference in the size of the optic nerve heads in this patient without visual field loss. Patients who demonstrate this size differential without visual field loss often do not develop visual field loss until relatively late in the progress of the disease, but when that loss occurs it occurs abruptly and profoundly. Thus, it appears that the risk of performing a trabeculectomy had to be weighed against the danger of irreversible damage from the progress of glaucoma. Under these circumstances, it was reasonable for Respondent to recommend surgery. It should be noted also that at the time Respondent recommended the surgical procedure, he also advised the patient that she was free to seek a second opinion. In addition, Respondent also adduced credible testimony that based on the drugs which he had prescribed medical management of this patient's condition would not have been furthered by adding epinephrine to his course of treatment. Accordingly, the facts of record in this cause do not establish that Respondent caused Etta Rose to visit his office an excessive number of times, that he prescribed excessive medication for his treatment of that patient, or that unnecessary surgery was recommended by Respondent. ALBERT MILLER Respondent first saw Albert Miller as a patient on September 29, 1976. Upon physical examination of the patient, Respondent had no reason to suspect the presence of glaucoma. The patient was next seen on March 16, 1977, for a check of his retina because of his history of diabetes. In addition to diabetes, the patient also had a history of hypertension. There were no changes in the patient's condition on the March 16, 1977, visit, and Respondent instituted no treatment. The patient was next seen for an annual check on May 22, 1978. The patient's vision with his glasses had worsened in both eyes at that time. The patient's history indicates that the patient's diabetes had been high just two months prior to this examination. The diabetes had apparently also affected the patient's intraocular pressures because they were found to be 20 in both eyes on this examination, whereas they had been 17 in the right eye and 16 in the left eye on September 29, 1976, when the patient was first seen by Respondent. Respondent chose not to institute active treatment of the patient after the May 22, 1978, visit. The patient was next seen on July 17, 1979. At that time his pressures were still 20 in both eyes and Respondent noted some slight increase in cataract formation and the presence of retinal hemorrhages in the patient's right eye, indicating some diabetic retinal changes that could make the patient's eyes more susceptible to disease. The patient was next seen on July 15, 1980, at which time his intraocular pressures were measured to be 26 in the right eye and 24 in the left eye. Although there is a notation in Respondent's record that the patient was "squeezing," which can artificially elevate pressures, the Respondent testified without contradiction that the "squeezing" noted in his records did not affect the accuracy of these recorded pressures. As of the July 15, 1980, office visit, Respondent diagnosed the patient as a "glaucoma suspect," which is someone who, because of existing physical factors, runs a substantial chance of developing future glaucoma. As a result of this diagnosis, the Respondent scheduled the patient for visual fields on July 17, 1980, and a gonioscopy on July 18, 1980. Visual fields performed by Respondent showed visual field defects which were suggestive of actual visual field loss on threshold stimulus testing. As a result the Respondent concluded that the patient might already have had early visual field loss, and started the patient on a one percent pilocarpine solution in both eyes, every four hours. The patient was next seen on July 22, 1980, at which time his pressures were measured to be 22 in the right eye and 20 in the left eye at 1:35 p.m. The patient was next seen on July 25, 1980, at which time his pressures were 24 in the right eye and 18 in the left eye. Respondent did not feel that a pressure of 24 in the right eye was adequate medical control, so he increased the patient's medication to two percent pilocarpine solution, and scheduled the patient to return on July 29, 1980. The July 25, 1980, pressure readings were conducted at 8:55 a.m., so the patient was scheduled to return in the early afternoon on July 29, 1980, in order to obtain pressure readings at a different time of day. On that occasion, the patient's pressures were 20 in the right eye and 22 in the left eye, which Respondent still determined not to be adequate medical management. Accordingly, Respondent increased the dosage of pilocarpine to a four percent solution. The patient was next seen on August 1, 1980, at which time his pressures were 21 in the right eye and 22 in the left eye. Respondent concluded the reading of 22 in the left eye, in light of possible visual field defects, was not adequate medical management, so he added 0.25 percent timolol to the four percent pilocarpine prescription. The effect of timolol is usually observable within 48 hours. The patient was next seen on August 5, 1980, at which time his pressures were 17 in the right eye and 18 in the left eye. Respondent was pleased with the lowering of the patient's pressures, and scheduled the patient to return on August 11, 1980. At that time the patient's pressure was 20 in both eyes. Respondent was pleased with these results, and felt that he did not need to see the patient again for a two-week period. The patient never returned. The last time the patient was seen by Respondent on August 11, 1980, the Respondent's diagnosis was "glaucoma suspect," although Respondent felt that he needed to follow the patient longer to monitor his visual fields and optic nerve heads. However, with the patient's history of diabetes, myopia, hypertension, and Respondent's determination that he showed early visual field changes, Respondent felt confident with his final diagnosis of "glaucoma suspect." The patient was subsequently examined by another ophthalmologist in the Fort Lauderdale area on August 28, 1980. At that time the patient's pressures were 19 in the right eye and 20 in the left eye. The patient was given a complete examination, which showed presence of dot and blot hemorrhages throughout the entire retina of both eyes, which was to be expected of a patient who was diabetic for the past 15 years, and had been taking insulin for that condition for the past eight years. The patient's optic nerves were normal, and the patient's cup to disc ratio was also normal. Because the patient's optic nerves were normal, he was taken off the pilocarpine which had been prescribed for him by the Respondent. A visual field test was also administered to the patient to determine the presence of any visual field loss secondary to glaucoma, but that test indicated normal vision. The normal cup to disc ratio found by the subsequent treating physician in examining the patient has remained stable throughout his entire course of treating the patient. The patient was last seen by the subsequent treating physician on May 25, 1982, at which time he had intraocular pressures of 16 in the right eye and 18 in the left eye without medication. Another visual field test was performed on that date, which again disclosed normal vision. The subsequent treating physician, like Respondent, diagnosed the patient to be a potential "glaucoma suspect." In the Administrative Complaint, Respondent is charged with requiring Mr. Miller to make an excessive and unnecessary number of office visits. The Respondent is also charged with failing to maintain records revealing the frequency of use of the pilocarpine prescribed for Mr. Miller, and further with failing to maintain records indicating the percentage dosage of timolol and the date of beginning of use of that drug. With respect to the latter charge, the record contains no facts to substantiate those allegations and, in fact, contains evidence that Respondent clearly noted in his records the information charged as lacking in the Administrative Complaint. The Administrative Complaint also charges Respondent with having required the patient to visit his office a total of ten times between July 17, 1980, and August 11, 1980, which is alleged to be ". . . an excessive an[sic] unnecessary number of office visits." The record in this cause establishes that the patient visited Respondent's office a total of eight times during that period. As indicated above, the patient had been seen by Respondent over a period of approximately four years before there was ever any indication of even marginally elevated pressures. Given the patient's history of diabetes and hypertension Respondent, in the exercise of his clinical judgment, determined to treat the condition with medication. Although the record in this cause contains credible testimony that some physicians would not have treated the condition at all, or would have seen the patient at most once a week, equally credible evidence contained in this record establishes that once the decision to treat was made and the patient was started on medication, it was entirely proper to monitor the patient closely to determine the effect that the medication was having on the patient's pressures. It should be noted that the Respondent is not charged in the Administrative Complaint with prescribing excessive or unnecessary medication. Based upon the foregoing, it is therefore concluded that there is an insufficient factual basis in the record in this proceeding to establish that, under the conditions present here, the Respondent departed from reasonable medical practice in seeing the' patient on eight occasions during approximately a one-month period. ELEANOR DRAGER This patient was first seen by Respondent on January 7, 1980. At that time the patient gave a history of having had her vision go blurry for 15 to 20 minutes on two occasions since the beginning of the year. An examination of the patient's eyes showed her vision to be 20/29 in her right eye and 20/100 in her left eye. Intraocular pressures were 30 in her right eye and 28 in the left eye, both of which are considered to be quite high. The patient's last eye examination had been in October of 1978. The patient was next seen on January 9, 1980, at which time Respondent determined it necessary to perform cataract surgery and to implant an intraocular lens. The surgery was performed on January 30, 1980, and, in addition to removing a cataract and implanting a lens, Respondent performed a posterior sclerotomy, a procedure performed by making a tiny hole in the eye wall and inserting a needle to aspirate vitreous fluid, thereby allowing the remaining vitreous to resume a normal position. The patient was seen postoperatively on February 1, 1980, and again on February 7, 1900. Respondent's practice is to visit frequently with postoperative patients in order to closely monitor the patient's condition. On the February 7, 1980, examination, the patient's vision was 20/70 in her left eye, which Respondent considered excellent for one week postsurgery. The pressure in the eye was 20 and there were no other changes of note. The patient was next seen on February 13, 1980, at which time her vision was only 20/200 in her left eye. The only other finding of note on this date was that the lens implant had shifted to a position closer to the cornea. The patient was next seen on March 13, 1980, at which time her vision was still 20/290 in the left eye, and her pressures were 22 in the right eye and 44 in the left eye. Respondent improved the patient's vision to 20/60 in her left eye with a lens change in her glasses. The patient was next seen on March 25, 1980, in response to a call from the patient indicating that on the previous day she had experienced foggy vision in her left eye, and within an hour could see nothing at all out of the eye., The patient had treated the problem herself with eye drops and, within a couple of hours, her vision had improved. Upon examination, Respondent discovered the patient's vision to be 20/200 in the left eye, with a pressure of Respondent restored the patient's vision to 20/25 with a glasses change, leading him to suspect, in view of the patient's recent surgery, that there was a possibility of retinal detachment or retinal tear with possible vitreous hemorrhage. Respondent was unable to see the entirety of the back of the Patient's eye in order to determine the presence of a retinal tear because a view of certain portions of the eye was blocked by the intraocular lens implant. The patient was next seen on March 31, 1980, complaining of "haze" over her left eye. The patient's vision has worsened to 20/40 in her left eye, and her intraocular pressures were 26 in both eyes. The Respondent again changed the lenses in the patient's glasses, restoring her vision to 20/25 in the left eye. The patient was next seen on April 14, 1980, still complaining of the "haze" over her left eye and an additional complaint of many black dots in the left eye since her last visit. Respondent dilated the eye, and found a large number of vitreous floaters present. Respondent concluded from the presence of these floaters that the patient had probably suffered a vitreous hemorrhage. The most common reason for floaters to be present in a postsurgical cataract patient with a vitreous hemorrhage is retinal tear. Respondent could not, however, actually see the retinal tear upon visual examination. The patient was seen again on April 16 and on April 18, 1980, complaining of an increase of black soots in her left eye. Upon examination, Respondent noted the presence of vitreous traction in the left eye, and determined that the patient should be scheduled for cryo-pexy surgery to be performed in his office on April 21, 1980. Cryo-pexy surgery is an operation that involves the application of cold, in this case a local drop of opthane, to the eyeball in order to produce a tissue destruction to release adhesions thereby avoiding potential retinal tear or detachment. The procedure can be performed in a physician's office, as opposed to a hospital, and requires only 10 to 15 minutes to perform. At the time cryo-pexy surgery was to be performed, Respondent had been unable to actually observe a retinal tear, although he had noted the presence of retinal traction. Respondent felt, however, that a retinal tear could have been caused by the placement of the needle through the pars plana during the course of performing the posterior sclerotomy on January 30, 1980. In fact, many ophthalmalogists perform cryo- pexy at the same time as a posterior schlerotomy in order to prevent a retinal tear from developing as a result of that procedure. Respondent chose to recommend cryo-pexy surgery for a variety of reasons. Among them were the recent cataract surgery, the implantation of an intraocular lens, the performance of the posterior sclerotomy, and the' patient's history of heart disease which would have made it more complicated to perform cutting surgery as opposed to cryo-pexy should an actual retinal detachment occur. The patient had a history of recent phlebitis which had hospitalized her, so that the possibility of placing her under general anesthesia in order to perform major surgery for a retinal detachment thereby leaving her inactive in a hospital bed for a period of days could have resulted in a complication of her phlebitis. The decision to perform cryo-pexy surgery involved the exercise of clinical judgment. Respondent, by necessity, had to weigh the dangers of performing the surgery against problems that might be associated with failure to perform the procedure. The three principal reasons advanced in this record for not performing this procedure were that Respondent's records indicated only the presence of "floaters" and not an actual vitreous hemorrhage; Respondent could not actually visualize the retinal tear prior to recommending surgery; and, the performance of cryo-pexy could have further traumatized an eye which had already been subjected to considerable surgical manipulation. In response to these considerations, Respondent testified, without contradiction, that he considered the presence of "floaters" to be synonymous with vitreous hemorrhage and, therefore, saw no reason to actually note the presence of hemorrhage in his notes. Further, although Respondent could not actually see a retinal tear in the patient's eye, based on his course of treatment of the patient he was aware of the site through which he had placed the needle in performing the posterior sclerotomy, and reasonably concluded that the performance of that procedure, in the presence of so great a quantity of floaters in the patient's eye, could have resulted in a retinal tear. In short, the patient's symptoms were consistent with development of a vitreous hemorrhage following cataract extraction. In light of the fact that the cataract extraction included the performance of a posterior sclerotomy through the pars plana, there was every reason to believe that the patient might have had a hole somewhere in the region of the sclerotomy site. Under these conditions cryo-pexy is an acceptable means of treating this condition despite being unable to see an actual retinal tear. The risk in delaying the performance of the cryo-pexy was that the retina could detach and the problem thereby become more difficult to manage. In making the decision to perform cryo-pexy, the Respondent weighed the risk of performing the procedure against the risk of not performing it, and reasonably determined that the best course of treatment was to perform the procedure.
The Issue The issue for consideration in this case is whether alleged statements attributed to the Board of Optometry were made by the Board, and if so, whether the statements constitute unpromulgated rules prohibited by Section 120.54(1)(a), Florida Statutes, (Supp. 1996).
Findings Of Fact The parties stipulated as a matter of fact that: The FOA is a not-for-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, to practice optometry in Florida. All FOA members are subject to and regulated by the Board of Optometry and its rules. The FOA has approximately 1,022 members. The Board of Optometry is the agency responsible for regulating the optometric practice of all FOA members. Board rules and agency statements of general applicability regulate the optometric practice of all FOA members. Individual members of the FOA, being subject to and regulated by the rules and policy of the Board of optometry, are persons whose substantial interests will be affected by the alleged agency statements and are thus substantially affected persons within the meaning of Section 120.56(1)(e), Florida Statutes (Supp. 1966). As all members of the FOA are subject to and regulated by Board rules and statements of general applicability, a substantial number of the FOA’s members would be substantially affected by the alleged statements. The objective of the FOA is to promote and protect the interests of the general public and licensed optometrists in ensuring the availability of high quality eye care at an affordable price. The FOA represents its members through the provision of education and training, and by participation in administrative proceedings, legislative activities, and court litigation. Petitioner, Brian Lloyd Weber, O.D., is an optometrist licensed and practicing in Florida. Petitioner, 29/49 Optical Inc., (29/49), is a corporation which operates optical establishments in Florida. The Board of Optometry is the state agency in Florida which licenses optometrists and regulates the practice of optometry in this state. On January 29, 1992, the Probable Cause Panel of the Board of Optometry determined there was probable cause to discipline the license of Dr. Weber because of an alleged violation of Section 463.014(1)(b), Florida Statutes, involving the corporate practice of optometry. Thereafter, on February 2, 1992, an Administrative Complaint was filed with the Board which alleged that Dr. Weber had violated the cited statute by engaging in the practice of optometry with a corporation not composed of other health care providers; by entering into a corporate arrangement which permitted an unlicensed person to practice optometry through Dr. Weber, in violation of Rule 21Q-3.008, (now Rule 59V-3.008, Florida Administrative Code); and by holding himself out to the public as available to render professional services in a manner which implies he is professionally associated with an entity which is not a licensed practitioner, also in violation of the Rule. The investigation conducted by the then Department of Professional Regulation, which led up to the action of the panel and the filing of the Administrative Complaint indicated that Dr. Weber owned 250 shares of stock in 29/49, along with an optician, Anthony Record, not licensed to provide optometry services, who also owns stock in the corporation. Allegedly, the corporation operated at five different locations, at one or more of which eye examinations were performed. It was also alleged that 29/49 had publicly advertised itself as an entity which provided complete eye examinations, and that Dr. Weber performed the eye examinations described in the advertisements. In fact, Dr. Weber is a director and officer of 29/49. He holds a 75% ownership share in the corporation. Both Dr. Weber and Mr. Record control the corporation and share the duties and profits of the operation. The firm provides optitianry services, as defined in Sections 484.002(3) and (7), Florida Statutes. Dr. Weber asserts that the operations of 29/49 are separate from the operations of his optometric practice, and claims that the Board’s direction to him to change the corporate structure of 29/49 so as to dissolve his partnership with a lay person is a continuation of what he claims is a long-standing policy of prohibiting the joint ownership of an optitianry between and optometrist and a lay person. Before a hearing was held on the Administrative Complaint, Dr. Weber and counsel for the Board entered into a stipulation which, if accepted by the Board, would have resolved the pending disciplinary action. The stipulation was presented to the Board at its July 8, 1993 meeting, at which time the Board voted to reject it and to propose a counter-stipulation. At that meeting, the Board did not enunciate any of the alleged agency statements at issue here nor did it take a position as to what Dr. Weber must do to rectify the practice situation to its satisfaction. Nonetheless, by Order dated September 9, 1993, the Board formally rejected the proposed stipulation and proposed its own stipulation. On September 12, 1996, Dr. Weber and the Agency’s counsel presented a second stipulation to the Board for settlement of the disciplinary matter, but again the Board voted to reject the stipulation and to offer its own second counter- stipulation. This counter-proposal called for Dr. Weber to change his corporate structure so that he no longer violated the statutory prohibition against practicing optometry with non- licensed individuals, and that he no longer practice with a lay person. This second counter-proposal by the Board did not enunciate any of the alleged agency statements at issue herein. This second counter-proposal was promulgated in an Order of the Board issued on October 15, 1996. Sections 463.014(1)(a)&(b), Florida Statutes, provide: No corporation, lay body, organization, or individual other than a licensed practitioner shall engage in the practice of optometry through the means of engaging the services, upon a salary, commission, or other means or inducement, of any person licensed to practice optometry in this state. Nothing in this section shall be deemed to prohibit the association of a licensed practitioner with a multidisciplinary group of licensed health care professionals, the primary objective of which is the diagnosis and treatment of the human body. No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group or lay individual. This provision shall not prohibit licensed practitioners from employing, or from forming partnership or professional associations with, licensed practitioners licensed in this state or with other licensed health care professionals, the primary objective of whom is the diagnosis and treatment of the human body. Consistent therewith, the Board of Optometry has promulgated Rule 59V-3.008, Florida Administrative Code, which implements the provisions of the statute. Rule 59V-3.008, Florida Administrative Code, restates the intent of the legislature regarding the need for licensure of practitioners of optometry, defines a “licensed practitioner”, and thereafter outlines with particularity those actions which may and those which may not be carried on by licensed optometrists in Florida. The rule is quite clear in its definitions and leaves little room for misunderstanding regarding what constitutes the practice of optometry and optometric services; those individuals who must be licensed; what professional activities a licensed practitioner may perform and what activities constitute a violation of Section 463.014,Florida Statutes. Of specific relevance to the issues herein are: (15)(b) Entering into any agreement (whether written or oral) which allows, permits or facilitates an entity which itself is not a licensed practitioner to practice optometry, to offer optometric services to the public, or to control through any means whatever any aspect of the practice of optometry. Allowing, permitting, encouraging, forbearing, or condoning any advertisement including those placed in a newspaper, magazine, brochure, flier, telephone directory, or on television or radio, which implies or suggests that the licensed practitioner is professionally associated or affiliated with an entity which itself is not a licensed practitioner. Occupying or otherwise using professional office space in any manner which does not clearly and sufficiently indicate to the public that his/her practice of optometry is independent of and not associated with an entity which itself is not a licensed practitioner. , (I), and(j), [which all refer with specificity to some action which relates to the practice of optometry by a licensed practitioner with an entity which itself is not a licensed licensed practitioner.] This rule has been challenged in the courts and determined to be a valid exercise of delegated legislative authority. Petitioner claims that pronouncements by the Board of Optometry since the passage of the relevant statute and the promulgation of the relevant rule, including a Declaratory Statement by the Board in response to a Petition therefore by Phillip R. Sidran, O.D. in 1991, found at 13 FALR 4804; and in discussion of members at various meetings of the Board’s Probable Cause Panel; all indicate that the Board has formulated a policy regarding the instant issue which is neither a statute nor a properly promulgated rule. In 1991, Dr. Sidran, a licensed optometrist, sought a declaratory statement from the Board regarding the propriety of having a licensed optician share the revenues and responsibilities deriving from the optical portion of his practice. In its Declaratory Statement, issued on October 9, 1991, the Board specifically referred to and quoted the controlling portions of the statute and the rule which it then interpreted as indicating such an arrangement was prohibited. At no time did the Board promulgate new guidelines or expand the strictures imposed by the existing statute and rule. It applied an existing statute and rule to the factual situation posed by Dr. Sidran and concluded that under the facts of that case, the existing statute and rule prohibited the proposed relationship. The subsequent discussion of that opinion at the meeting of the Board’s Probable Cause Panel, convened on January 29, 1992, to consider proposed disciplinary action against Dr. Weber for the situation described here with 20/49, again interpreted existing statute and rule but did not formulate policy. Petitioner further refers to two additional meetings of the Board of Optometry at its meetings on July 8, 1993 and September 12, 1996, at both of which the members present discussed the situation regarding Dr. Weber’s business relationship in 29/49. He claims that in both situations, the Board members made policy statements which should have been formalized through the promulgation of a rule amendment or supplement. Review of the transcripts of those meeting does not support Dr. Weber’s position, however. It is clear that in each case the Board members examined the facts presented to them, applied the existing statutory and rule provisions to those facts, and concluded that the Petitioner’s actions constituted a violation of existing law. The Board’s position vis a vis Dr. Weber’s business arrangement was made a part of the Board’s counter-proposal to the stipulation of settlement initially agreed to by Dr. Weber and the Department’s counsel. In it’s counter-stipulation, which came out of the September 12, 1996 Board meeting, the Board required Dr. Weber to “... change his corporate structure so he is no longer in violation of Section 463.014(1)(b), Florida Statues, and that [his] practice be changed so that he is no longer practicing with a lay person.”
Findings Of Fact At all times material hereto, Respondent was a licensed optometrist in the State of Florida, having been issued license number OP-0000437. On or about January 4, 1986, Clara Piskura was examined and fitted by Respondent for soft contact lenses. She had worn hard contact lenses for approximately 15 years. Respondent issued soft contact lenses to Piskura on January 4, 1986, but she immediately informed him she could not see well with the soft contact lenses. She subsequently reported headaches and a continuing inability to see. On or about January 8 and 18, 1986 Piskura had follow-up visits with Respondent, but when she went to Respondent's office on January 27, 1986, he refused to examine her. Her headaches and inability to see were not corrected in these follow-up visits. Piskura returned the soft contact lenses to Respondent, and received a 50 percent refund of the $110.00 she paid for the soft contact lenses, pursuant to an Agreement she signed on January 4, 1986. According to John Walesby, O.D., who was accepted as an expert in optometry, Respondent failed to keep acceptable minimum optometric records relating to his patient, Clara Piskura. He did not record a patient history or chief complaint, an internal or external examination of the patient, or a visual field testing in an acceptable manner. There is no recording of pupillary examination, or biomicrososcopy (monocular or binocular). Based upon his failure to keep adequate patient records which would meet minimum optometric standards, Respondent's examination and treatment of Piskura was negligent or incompetent in that it was incomplete, and did not allow anyone reviewing the records to interput or understand those records or the patient's condition. However, the evidence does not establish that Respondent's actions constituted misconduct in his profession or gross malpractice. Respondent testified that he conducted a complete and thorough exam of Piskura, but his records do not document or confirm his testimony, or otherwise explain his use of check-marks in his patient records. Respondent has been licensed, and has practiced in the State of Florida, for over 30 years and has never been the subject of license disciplinary action prior to this proceeding.
Recommendation Based upon the foregoing, it is recommended that the Board of Optometry enter a Final Order finding Respondent in violation of Sections 463.016(1)(g) and (k), Florida Statutes, and placing his license on probation for a period of 3 months, conditioned upon his successful completion of 6 hours of continuing optometric education in addition to the hours regularly required to maintain his license and the payment of a $500 administrative fine. DONE AND ENTERED this 7th day of January, 1988, in Tallahassee, Florida. DONALD D. CONN 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 7th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4902 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as unnecessary and irrelevant. 3-4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. 7-14. Adopted in Finding of Fact 5. 15-16. Rejected as unnecessary and cumulative. Respondent did not file Proposed Findings of Fact upon which explicit findings could be made. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Jack L. Hargraves 1211 South Dale Mabry Tampa, Florida 33629 Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
