The Issue The issue is whether the examination, its administration, or its grading were arbitrary or capricious.
Findings Of Fact Su-Jung Shiuey sat for the acupuncture licensure examination on July 18 through 20, 1986, in Orlando, Florida. The examination included a requirement for candidates to demonstrate practical clinical skills including sanitation, needling technique, and point location. A passing score of 70 on the clinical practical portion of the examination is required of candidates. Su-Jung Shiuey failed to locate four points in the point location portion of the examination. See Respondent's exhibits 3 and 4. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Su-Jung Shiuey failed to demonstrate proper needling techniques. See Respondent's exhibits 2 and 3. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Each of the examiners was a licensed acupuncturist in Florida. Each of the examiners worked with a co-examiner, and all examiners are required to score candidates independently. Each of the examiners' grade sheets for these two portions of the examination made the same findings and similar observations. Su-Jung Shiuey received 66 points on the clinical practical portion of the examination and was denied licensure. Su-Jung Shiuey presented no independent testimony or evidence to discredit the qualifications of Respondent's witnesses or evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Dr. Su-Jung Shiuey's request for increased score, or reexamination without fee, should be DENIED. DONE AND ORDERED this 9th day of January, 1987, in Tallahassee, 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 9th day of January, 1987. COPIES FURNISHED: Dr. Su-Jung Shiuey (Petitioner's husband) 331 Bloomfield Avenue Nutley, New Jersey 07110 Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are: (1) whether the Petitioner should be given a passing grade on the podriatry examination he is challenging; and (2), in light of his failure to appear at the final hearing, whether the Department should assess attorney fees, costs and court costs under Section 455.229(3), Fla. Stat. (1993).
Findings Of Fact The Petitioner took the podiatry licensure examination administered by the Department on August 20, 1993, and received a failing grade. The Petitioner had due notice of the final hearing scheduled in this matter on June 14, 1994, by virtue of the Notice of Hearing issued on March 7, 1994. It also is clear that the Petitioner had actual notice of the scheduled final hearing. Counsel for the Department was in telephone communication with the Petitioner in the weeks before the scheduled final hearing and discussed the scheduled final hearing with the Petitioner. The Petitioner requested an opportunity to review the examination (for the second time) at 11:00 a.m. on the day of the final hearing (which was scheduled to begin at 1:00 p.m.) Counsel for the Department acceded to the Petitioner's request and, together with the Department's psychometrician, appeared at the final hearing site at 11:00 a.m. The Petitioner did not appear either at 11:00 a.m. or at 1:00 p.m. and had not appeared by the time the final hearing was concluded at approximately 1:33 p.m. The Petitioner gave no notice that he would not appear and has given no explanation why he did not appear. The Petitioner also has not responded to the Department's Motion for Recommended Order that Petitioner Pay Respondent's Reasonable Attorney's Fees, Costs, and Court Costs which was served on June 21, and filed on June 23, 1994. The Department expended $651.04 for fees and costs related to its attorney's preparation for, travel to and from, and participation in the final hearing. The Department expended $826.14 for fees and costs related to its psychometrician's preparation for, travel to and from, and participation in the final hearing. The Department expended $239.20 for fees and costs related to its podiatry expert's preparation for, travel to and from, and participation in the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a final order denying the Petitioner's examination challenge and assessing against the Petitioner attorney fees, costs, and court costs in the amount of $1,716.38. RECOMMENDED this 15th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of July, 1994. COPIES FURNISHED: Gerald J. Gambale 9713 Morehead Lane Port Richey, Florida 34668 Vytas J. Urba, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Diane Orcutt, Executive Director Board of Podiatric Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 the Respondent properly denied the Petitioner’s request to be a “recognizing agency” within the parameters of Rule 59R-11.001, Florida Administrative Code.
Findings Of Fact Chelation therapy is the introduction of a man-made amino acid into a patient’s vein. It has been approved by the U.S. Food and Drug Administration and is used for the treatment of heavy medal toxicity and the removal of lead. American Board of Chelation Therapy (ABCT) is an autonomous organization that provides education and certification to any physician who wishes to become knowledgeable in Chelation therapy. ABCT was established in 1982 for the purpose of establishing the criteria necessary for certification in the area of Chelation therapy. The Board of Medicine is a statutory entity, established by Chapter 458, Florida Statutes, as the primary regulatory authority for the practice of allopathic medicine in the State of Florida. Pursuant to section 458.301, Florida Statutes, the legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The section further provides that the primary legislative purpose in enacting the medical practices act is to “ensure that every physician practicing in this state meets minimum requirements for safe practice.” In keeping with the legislative mandate to ensure that purpose of the medical practices act, the legislature created the Board of Medicine and authorized the Board to create administrative rules for the purpose of implementing chapter 458. Rule 59R-11.001, Florida Administrative Code, is the advertising rule of the Board of Medicine.3 The rule codifies provisions of section 458.331(1)(d), Florida Statutes, and provides criteria for identifying false, deceptive, or misleading advertising. In particular, the rule governs advertising on physician letterhead and limits the use of the term “specialist” unless the specialty is recognized by (1) a specialty board of the American Board of Medical Specialties (ABMS) or (2) a board that meets the requirements of Rule 59R-11.001, Florida Administrative Code. For those specialties recognized by organizations that do not meet the requirements of the rule, the physicians may still advertise their specialty so long as they provide a disclaimer. By rule the disclaimer must state the following “The Specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Medicine.” ABMS is generally recognized in the United States as the agency that approves allopathic medical specialty boards and the Board of Medicine has historically relied upon ABMS and its standards and, as reflected in the current rule, continues to rely on ABMS and its standards for approving recognizing agencies. On July 17, 1995, the Petitioner, ABCT submitted an application to Florida Board of Medicine for the purpose of being certified as a “recognizing agency” pursuant to rule 59R-11.001. ABCT is not a specialty board of the ABMS. Because ABCT is not a member board of the ABMS, the Board of Medicine looked to the requirements of rule 59R- 11.001(2)(f) to determine whether ABCT met the criteria enunciated in the rule and whether it is therefore a “recognizing agency” capable of bestowing specialty status on a physician. Rule 59R-11.001(2)(f), Florida Administrative Code, provides that non-ABMS Boards may seek recognition as “recognizing agencies” if they meet the following criteria: The recognizing agency must be an independent body that certifies members as having advanced qualifications in a particular allopathic medical specialty through peer review demonstrations of competence in the specialty being recognized. Specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada that includes substantial and identifiable training in the allopathic specialty being recognized. Specialty recognition must require successful completion of a comprehensive examination administered by the recognizing agency pursuant to written procedures that ensure adequate security and appropriate grading standards. The recognizing agency, if it is not an ABMS board, must require as part of its certification requirement that each member receiving certification be currently certified by a specialty board of the ABMS. The recognizing agency must have been determined by the Internal Revenue Service of the United States to be a legitimate not for profit entity pursuant to Section 501 (c) of the Internal Revenue Code. The recognizing agency must have full time administrative staff, housed in dedicated office space which is appropriate for the agency’s program and sufficient for responding to consumer or regulatory inquiries. The recognizing agency must have written by-laws, and a code of ethics to guide the practice of its members and an internal review and control process including budgetary practices, to ensure effective utilization of resources. However, a physician may indicate the service offered and may state that practice is limited to one or more types of services when this is in fact the case; On April 15, 1996, the Board of Medicine issued an order denying the ABCT’s application for specialty status. As basis for the denial, the order stated that the application of the ABCT failed to establish compliance with the requirements for approval as set forth in Rule 59R-11.001(2)(f), Florida Administrative Code. Specifically, the order stated: The requirements for diplomat status in ABCT do not require advanced qualifications in a particular allopathic medicine specialty; specialty recognition given by ABCT does not require completion of an allopathic medical residency program approved by the ACGME or the Royal College of Physicians and Surgeons of Canada that include substantial and identifiable training in the allopathic specialty being recognized; specialty recognition provided by the ABCT does not require successful completion of a comprehensive examination pursuant to written procedures that ensure adequate security and appropriate grading standards in that ABCT requires only a score of 60% to pass the examination, the examination consists of true false questions and answers, and the examination is not a medically comprehensive examination; ABCT is not an ABMS board and does not require that each member it certifies be currently certified by an ABMS board; and ABCT has not provided evidence that it is a legitimate not-for-profit entity pursuant to Section 501(c) of the Internal Revenue Code as determined by the Internal Revenue Service. Each of the requirements of rule 59R-11.001(2)(f) were addressed at the administrative hearing. With regard to criteria (1) of rule 59R-11.001(2)(f), advanced qualifications in a particular allopathic medical specialty through peer review, the ABCT does not require an advanced qualification in a particular allopathic medical specialty. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(1). Criteria (2) of rule 59R-11.001(2)(f) provides that the specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada. The ACGME is generally recognized as the organization that sets criteria for graduate medical education in the United States. The Board of Medicine has incorporated that recognition in the rule by requiring that the advanced education component of the rule be ACGME approved. The Royal College of Physicians and Surgeons of Canada is ACGME’s counterpart in Canada. With regard to criteria (2) of rule 59R-11.001(2)(f), ABCT does not require completion of an allopathic residency program approved by either the ACGME or the Royal College of Physicians and Surgeons of Canada. In fact, ABCT has no requirement for a residency program. ABCT reasoned that a there is no need for a residency program for Chelation therapists because Chelation therapy does not require overnight hospital stay. The only requirement remotely relating to residency is an ABCT requirement that applicants for diplomat status administer a minimum of 1000 Chelation treatments. There is no requirement that these treatments be supervised and no requirement for verification that the minimum number of treatments were administered. With regard to criteria (3) of rule 59R-11.001(2)(f), requiring successful completion of a comprehensive examination, ABCT does not require all applicants for diplomat status to complete a written examination in order to obtain certification. Specifically, some candidates are grandfathered in without being required to complete the written examination. For those applicants that are required to submit to an examination, Dr. Arthur L. Koch testified that the examination is composed of approximately sixty percent true/false questions. In addition, Dr. Koch testified that another ten percent of the test is not medically oriented but rather addresses the history and politics of Chelation therapy in the United States. At the hearing, ABCT submitted its Spring 1994 examination as an exhibit. That examination contained a majority true/false questions and a few multiple choice questions. To pass the ABCT diplomat examination, the candidate is required to achieve a score of 62.5 percent. In contrast, the Board of Medicine generally requires a passing score of at least 75%. The Board of Medicine expressed concern about the low passing score accepted by ABCT on its certification examination. The Board of Medicine also expressed concern over the large number of true/false questions used in the example examination submitted by ABCT. Uncontroverted testimony was presented at the hearing to support a finding that an examination consisting of a majority of true/false questions is not a viable method of testing knowledge. With regard to criteria (4) of rule 59R-11.001(2)(f), requiring members of non-ABMS boards to also be certified by a specialty board of the ABMS, the ABCT does not require that each physician seeking diplomat status be currently certified by an ABMS specialty board. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(4). With regard to criteria (5) of rule 59R-11.001(2)(f), that the recognizing agency must be a legitimate not for profit entity under the Internal Revenue Code, evidence was presented to verify that ABCT is a non-profit, tax-exempt organization. With regard to criteria (6) of rule 59R-11.001(2)(f), requiring the recognizing agency to have full-time administrative staff sufficient to respond to consumer or regulatory inquiries, no evidence was presented at the hearing relating to this criteria. With regard to criteria (7) of rule 59R-11.001(2)(f), requiring the recognizing agency to have written by-laws and a code of ethics to guide the practice of its members, ABCT submitted its Constitution and Bylaws as adopted in March of 1982 and subsequently amended. The Constitution and bylaws, however, did not include a written code of ethics and therefore did not fully comply with the requirements of the rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that in Case No. 96-3173, the Board of Medicine enter a Final Order denying ABCT’s application for approval as a “recognizing agency” pursuant to Rule 59R-11.001, Florida Administrative Code.DONE and ENTERED this 5th day of June, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1997.
The Issue Whether Petitioner is entitled to receive a passing score on the clinical portion of the August 1999 optometry licensure examination.
Findings Of Fact Petitioner, Sandra Farhady (Farhady), took the Florida optometry licensure examination in August 1999. The examination is divided into four portions: laws and rules, pharmacology, clinical, and certification. Prior to the administration of the test, each examiner is given grading standards, which are the requirements that must be met by a candidate to successfully demonstrate a particular procedure. All examiners receive standardization training, during which the examiners are trained to apply grading standards consistently. Examiners are instructed to wear their best corrective lenses. Examiners are instructed to grade each applicant independently of each other and are not permitted to confer with each other concerning a candidate's score. If both examiners agree, the candidate receives no credit or full credit, depending on whether they considered the candidate to have properly performed the procedure requested. If they disagree, the candidate is given partial credit on that procedure. The clinical portion of the examination requires the applicant to perform a number of tasks while two examiners evaluate the procedures. The examiners observe the procedure through a viewing system known as a teaching tube which is attached to the optometrist's equipment used by the candidate. Only one teaching tube is used so each examiner views the procedure separately. The candidate may ask the first examiner to grade his view and hold the view for the second examiner without having to refocus, or the candidate may perform the procedure for each examiner. Farhady passed the laws and rules, pharmacology, and certification portions of the examination, but failed the clinical portion of the examination with a score of 69.1. The passing score for the clinical examination is 75.0. Farhady challenged the score that she received on question 11a of the clinical examination. The question dealt with a procedure called retinoscopy, and the Department conceded at final hearing that Farhady should have been given credit for her answer. The additional points associated with question 11a raised Farhady's final score to 70.125. Farhady challenged the score she received for questions 33a, 33b, 33c, and 34a of the clinical examination. The questions relate to a procedure known as applanation tonometry, which is used to check a patient for glaucoma by measuring the intraocular pressure. This portion of the examination was worth ten points. Applanation tonometry is performed using a tonometer. The tonometers used by all the candidates for the August 1999 examination were part of a Zeiss slit lamp, which is also called a Zeiss microscope. It is an apparatus commonly used by optometrists within the scope of their practice. Each of the tonometers had a large fixation device mounted on the left side of the microscope. On the day of the clinical portion of the examination, the tonometer used by Farhady was in working order. No other candidate made a complaint concerning the working condition of the tonometer. The tonometer used by Farhady was not altered before, during, or after Farhady's session. There are time limits for section two of the clinical portion of the examination, which includes the applanation tonometry procedure. The Candidate Information Booklet for the Optometry Examination, which is provided to all candidates prior to the examination, provides: To protect the patient and to evaluate clinical competency, we will put time limits on the amount of time you will have to attempt each of the Section Two procedures. Timing will start after you receive the initial instructions for each procedure from the examiners and will continue until completion of the procedure or until time expires. . . . The time limit for the applanation tonometry procedure is six minutes. Farahady was unable to complete the applanation tonometry within the time allowed during the examination. She could not make the probe of the tonometer contact the patient's eye. During the procedure she advised the examiners, "Something is up with the tonometer." Farhady filled in a Candidate Comment Form and stated the following: Unable to acquire a view on tonometry. Mires were clear but fluorescent pattern not correct. It appeared like ground glass. I reapplied NAFI, but same view was seen so no grading was possible & I ran out of time. One of the examiner's noted the following on the Examiner's Comment Form: Pt. Ran out of time on tonometry--was apparently unable to see mires. Mires did not 'Flouress' well but was easily visible. Light source was close to 90 [degrees] away which may have contributed. Tonometry was repeated by this examiner without instilling new NaFl successfully by brightening the light source & bringing it to 60 [degrees]. Farhady contends that the position of the fixation device prevented her from being able complete the tonometry procedure. The fixation device can be easily moved to one side, pushed back, or folded up. If the fixation device was hindering Farhady in bringing the tonometer probe in contact with the patient's eye, Farhady could have quickly and easily moved the device out of her way. The position of the fixation device is not a defect in the tonometer equipment, which would have prevented a candidate from successfully performing applanation tonometry. Item 33a was the evaluation of whether the illumination source was a proper angle of 40 to 60 degrees. Item 33b evaluated whether the mires were the proper width. Item 33c evaluated whether the mires alignment was correct. Item 34 was the evaluation of whether the candidate obtained an accurate reading of the intraocular pressure. Farhady did not have the proper angle, did not demonstrate whether the mires were the proper width, did not align the mires correctly, and did not obtain a reading of intraocular pressure. Farhady challenged the score she received for questions 25a, 26a, 27a, 28a, 30a, and 32a, in section two of the clinical examination. These questions relate to a procedure referred to as biomicroscopy of the fundus. The scores given by the examiners for these questions were not identical. Examiner 199 did not give Farhady any points for questions 25a, 26a, 27a, 28a, and 32a. Examiner 199 noted that Farhady did not establish the proper focus with respect to these procedures. While examiner 231 did give Farhady points for procedure 25a, examiner 231 noted that Farhady had achieved only a borderline focus. Both examiners noted poor focus with respect to question 32a and did not give Farhady credit for that question. Question 25a required proper focus of nerve head. Examiner 199 noted the following on the grade sheet with respect to question 25a: Could not get it in view in left ocular. Candidate even verbalized this. For questions 26a, 27a, and 28a, examiner 199 noted that Farhady had no focus. For question 32a, examiner 199 noted, "could not/would not maintain focus." Farhady challenges the scores she received for questions 2a and 4a on section one of the clinical examination. These questions relate to visual field testing. The candidate is shown a visual field and is asked questions pertaining to the visual field. When Farhady was shown the visual field, she immediately said out loud that it was a glaucomatous loss before the examiner could read the instructions to her. The examiner said, "no" and began to read the instructions. Farhady thought that the examiner meant that it was not a glaucomatous loss. The examiner manual advises the examiners to avoid any comments which the candidate could interpret as favorable or unfavorable. For question 2a, Farhady was asked to name the visual field defect. She stated that it was arcuate scotoma. The correct answer was superior arcuate scotoma. Credit is not given for partial answers. It is important that the candidate identify whether it is a superior or an inferior arcuate scotoma in order to establish the location of the lesion so that the correct diagnosis can be made. Whether the examiner said "no" is irrelevant to the answer which Farhady gave to question 2a because she did identify that it was an arcuate scotoma. For question 4a, Farhady was asked which disease would be most consistent with the visual field defect. Farhady answered supracellar craniopharyngioma, which is incorrect. In layman's terms, a supracellar craniopharyngioma is a tumor of the pituitary gland. A visual field of a tumor of the pituitary gland is a bitemporal configuration not an arcuate configuration, meaning that Farhady's answer did not correlate in any way with the visual field defect. It was improper for the examiner to have said "no" after Farhady responded that it was a glaucomatous loss. It could have been interpreted by a candidate, as it was by Farhady, that her response was incorrect. The examiner should have told Farhady to wait until the instructions were read. Question 4a was worth 1.5 points, giving Farhady a total percent score of 71.6, which is not a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandra D. Farhady did not pass the clinical portion of the August 1999 optometry licensure examination and dismissing her petition. DONE AND ENTERED this 13th day of April, 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 13th day of April, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Sandra D. Farhady 6404 Wiley Street Hollywood, Florida 33023
The Issue Whether Petitioner is entitled to a passing score on the pharmacology/ocular disease portion of the optometry licensing examination administered August 3, 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Optometry is created as a part of Respondent by Section 463.003(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Optometry, which will enter a Final Order. Section 463.006(1), Florida Statutes, provides that anyone seeking licensure as an optometrist must pass a licensure examination. Section 463.006(2), Florida Statutes, provides, in part, as follows: The examination shall consist of the appropriate subjects, including applicable state laws and rules and general and ocular pharmacology with emphasis on the topical application and side effects of ocular pharmaceutical agents. . . . The optometry licensing examination consists of four separate examinations, one of which is the pharmacology examination. A candidate cannot be licensed as an optometrist in Florida until he or she passes all four examinations. In 1999, Petitioner passed three of the four examinations, but he failed the pharmacology examination. Petitioner retook the pharmacology examination on August 3, 2000. Pursuant to Section 456.017(2), Florida Statutes, and Rule 64B13-4.002, Florida Administrative Code, Petitioner did not have to retake the three portions of the licensure examination he passed in 1999. A candidate who fails a licensure examination has the right to review the examination material to determine whether he or she wants to file a challenge to the grading of the examination. Pertinent to this proceeding, Section 456.017(2), Florida Statutes, requires the following of Respondent: . . . provide procedures for applicants who fail an examination to review their examination questions, answers, papers, grades, and grading key for the questions the candidate answered incorrectly or, if not feasible, the parts of the examination failed. . . . Respondent is required to maintain the examination material by Section 456.017(3), Florida Statutes, which provides as follows: (3) For each examination developed or administered by the department or a contracted vendor, an accurate record of each applicant's examination questions, answers, papers, grades, and grading key shall be kept for a period of not less than 2 years immediately following the examination, and such record shall thereafter be maintained or destroyed as provided in chapters 119 and 257. This subsection does not apply to national examinations approved and administered pursuant to this section. A candidate is not allowed to retain a copy of the examination material or to make any copy thereof. Rule 64B13- 4.003, Florida Administrative Code, provides as follows: (3) An applicant is entitled to review his examination questions, answers, papers, grades and grading key used in the state examination for licensure; however, no applicant may copy any materials provided for his review. . . . A candidate has the right to a second review of the examination material in order to prepare for an administrative hearing. The candidate's attorney can participate in this second review. Rule 64B-1.009(1), Florida Administrative Code, provides, in pertinent part, as follows: (1) After the candidate's petition, which is a written statement requesting a hearing pursuant to 120.57, Florida Statutes, and setting out the information required under rule 28-106.201 of the Florida Administrative Code, has been filed, the candidate, and/or the candidate's attorney shall be permitted to review the examination questions and answers at the department's headquarters for the purpose of preparing for the administrative hearing, as specified in board rule or by the department when there is no board. . . . The examination at issue in this proceeding was not a national examination. Respondent maintains its master examination item bank for the optometry examination by computer. 1/ Typically, an examination booklet for a particular examination is printed from that computer item bank only when the booklet is needed for a legitimate purpose, such as an examination, a review, or a hearing. Once the booklet has served its purpose, it is destroyed. A psychometrician and three consulting optometrists usually proofread the contents of a newly printed examination booklet before it is used for an examination. The pharmacology examination at issue in this proceeding consisted of different case histories, each of which described a patient’s presenting condition and pertinent medical history. Each case history was followed by five questions with multiple choice answers. Candidates were instructed to select the best answer to each question from the multiple choice answers provided in the examination booklet. Respondent printed Booklet D from its master examination item bank for use as an exhibit in this proceeding. Booklets A, B, and C were not available for use as exhibits. Following his review of the examination material on November 7, 2000, Petitioner filed the Petition that underpins this proceeding. Question 74 required a candidate to select the best treatment for a patient based on the patient's case history. The candidate had 7 possible answers, lettered A - G, from which to choose. Each of the choices was a prescription medicine. In discussing Question 74, the Petition alleged that according to the answer key, the best answer was a certain topical steroid, which was choice F on Booklet D. That assertion is wrong. Choice E, not choice F, was the choice identified by the answer key as being the best answer to Question 74. Petitioner's response to Question 74 on August 3, 2000, was choice B. In discussing Question 44, the Petition alleged that according to the case history, a particular diagnostic procedure had not been performed on the patient. The last sentence of the case history for this question in Booklet D reflected the results of the diagnostic procedure that Petitioner alleged was not performed. Petitioner reviewed the examination material, including Booklet C, to prepare for the final hearing in this proceeding on February 28, 2001. Petitioner testified at the final hearing that the medication identified by Respondent as being the best response (choice E in Booklets C and D) to Question 74 was not an available answer in Booklets A and B. Petitioner testified at the final hearing that the last sentence of the case history for Question 44 in Booklets C and D had been omitted from Booklets A and B. Petitioner continued to assert that his responses to Questions 44, 74, and 75 were the best responses as those questions were presented to him when he took the examination. Lee Skinner, a psychometrician employed by Respondent, supervised the administration of the pharmacology examination at issue in this proceeding. Mr. Skinner and three consulting optometrists proofread the examination booklets used for the August 3, 2000, pharmacology examination. Mr. Skinner testified that Booklet A was identical in all material respects to Booklet D and that the alleged omissions did not exist. Consistent with Respondent’s policies, the hard copy of Booklet A was destroyed following the administration of the examination. Petitioner's answer sheet and the notes he took during the examination were preserved and were admitted as exhibits. Consistent with Respondent's examination review policies, Petitioner was not permitted to retain a copy of or make notes as to Booklet A, B, or C. For reasons that cannot be attributed to him, Petitioner’s testimony as to the alleged omissions in Booklets A and B could not be corroborated because hard copies of the examination booklets at issue were not available. 2/ Because Petitioner could not have a copy of or make notes from the examination booklets, he had to rely on his memory when preparing the underlying Petition and in testifying. Mr. Skinner’s testimony that there were no material differences between Booklet A and Booklet D is credible and persuasive. Petitioner failed to prove the alleged discrepancies between Booklet A and Booklet D. A score of 70% is needed to pass the pharmacology examination. Petitioner's score on the pharmacology examination administered August 3, 2000, was a failing score of 68.5%. Each of the three questions at issue is worth 0.75%. Petitioner would have to receive credit for a correct answer to at least two of the three questions at issue in this proceeding to attain the additional 1.5% he needs to pass the examination. The case history for Question 44 contained all the information necessary for a candidate to select the correct answer. On August 3, 2000, Petitioner did not select the best answer to Question 44. Consequently, he is not entitled to additional credit for his answer to that question. The case history for Questions 74 and 75 contained all the information necessary for a candidate to select the correct answer. Petitioner received no credit for his answer to Question 74 because he did not select the best answer to that question. Question 75 required the candidate to select the correct dosage and manner of administration of the medicine that was the best answer to Question 74. Petitioner's incorrect answer to Question 74 caused him to miss Question 75. Petitioner received no credit for his answer to Question 75 because he did not select the correct answer to that question. In addition to proofreading an examination booklet, a psychometrician typically reviews all answers to a licensure examination to make sure that no question was invalid. A question is considered invalid if 30% or fewer candidates select the answer identified by Respondent as being the best answer. Mr. Skinner reviewed all answers to Questions 44, 74, and 75 to determine whether an abnormal number of candidates missed each question. Based on the number of candidates that correctly responded to the three questions at issue compared to the incorrect answers, Mr. Skinner opined that each of the three questions was a valid examination question. 3/ Petitioner failed to establish a basis to disqualify Questions 44, 74, or 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner's challenge to the grading of his responses to Questions 44, 74, and 75 of the pharmacology examination administered August 3, 2000. DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of June, 2001.
Findings Of Fact Petitioner Samuel Scardino is an optometrist who is currently licensed as such in the states of California, Illinois, Kentucky, and Michigan. He graduated from the Illinois College of Optometry in 1978, and successfully passed all parts of the National Board of Optometry examination in the same year. He has been a practicing optometrist in Battle Creek, Michigan, since 1978. (Testimony of Petitioner, Petitioner's Exhibit 4) By application dated May 10, 1983, Petitioner applied to take the Florida optometry examination. His application was received by Respondent on May 13, 1983. Petitioner's application was approved pursuant to Respondent's Rule 21QER83-1 which amended Rule 21Q-4.01, Florida Administrative Code, on May 19, 1983, to provide that an applicant must have obtained a qualifying score on the national examination within five years prior or two years subsequent to the date of passage of the state examination. It also provided that a passing score of 75 must be obtained on the pharmacology section of the national examination in 1983, or subsequent thereto, within five years prior or two years subsequent to passage of the state examination. By letter of May 18, 1983, Respondent acknowledged receipt of Petitioner's application and $250.00 fee, but indicated that the application was incomplete in that a final transcript must be sent by his school, and also that the National Board report of passing grades within the past five years and the pharmacology section in 1983 with a score of 75 or above were required. Petitioner complied with these requirements and received an admission card for the optometry examination to be held in July of 1983. Petitioner took the examination at that time and received notice in September 1983 that he had failed the pharmacology/pathology portion of Part II of the examination with a grade of 61. A review of Petitioner's objections to the grade resulted in a further letter from Respondent, dazed December 23, 1983, which advised Petitioner that the Board of Optometry review committee had reviewed the matter and changed his final grade for the pharmacology/pathology portion of the examination from 61 to 65, but that a final grade of 70 percent or better was required to achieve a passing status. He was thereupon advised of his right to a hearing under Section 120.57, Florida Statutes. (Testimony of Petitioner, Petitioner's Exhibit 1, 5-8, Respondent's Exhibit 1) On March 19, 1984, Petitioner filed an application for optometry reexamination with the Respondent, together with the $250.00 reexamination fee. The state application form for reexamination did not ask for any information concerning the National Board of Optometry examination, as did the original application form. Respondent's Rule 21Q-4.02, Florida Administrative Code, pertaining to reexamination, provided pertinently as follows: 21A-4.02 Reexamination.-- An applicant who fails either Part I or Part II of the state examination for licensure shall be required to retake only that part of the examination on which he failed to achieve a passing grade, provided that the applicant shall be limited to two retakes within a two year period from the date of original failure. If the applicant fails to achieve a passing grade as provided above, he shall be required to take the complete state examination for licensure in order to be entitled to be licensed as an optometrist. Reexamination shall be conditioned on payment of the reexamination fee. Respondent advised Petitioner by an undated letter which he received on April 7, 1984, that his National Board scores were no longer valid to take the Florida examination since they had been obtained more than five years prior to his application to take the 1984 examination. The letter further stated that 1983 was his last year of eligibility for examination under his 1978 National Board scores and that he had not been successful in his 1983 Florida examination. The letter enclosed an application for refund of his $250.00 fee for the 1984 examination. Petitioner thereafter spoke with the Executive Director of the Board of Optometry who indicated that the Board would be evaluating his and other questions of candidates at their May 4, 1984 meeting. (Testimony of Petitioner, Gardner, Petitioner's Exhibits 2, 9, 11) The minutes of a meeting of the Board of Optometry on May 3, 1984, contains the following item: Examination 1984 - After discussion with Board Counsel, the Board reiterated that Examination candidates must have passed all parts of the National Board within 5 years prior to application to take the Florida examination in order that all candidates who pass the Florida examination are immediately eligible to apply for licensure. Any candidate who applies to retake the Florida examination must also meet the requirements of passing the National Board within 5 years of applying to retake the Florida examination. All requirements of 21Q-4.01 apply to all candidates and no waiver of requirements shall be granted. Motion by Dr. Walker, seconded by Mrs. Chambers. Passed unanimously. The Board's Executive Director advised Petitioner of the action taken by the Board in a letter of May 14, 1984. He was also informed by this letter that if he completed the National Board requirements prior to the 1985 examination and applied for such examination, he would be required only to take the practical portion of Part II of the Florida examination, but that if he were not licensed in 1985, he would be required to take the entire Florida examination. After receiving the letter, Petitioner submitted his application for refund of the $250.00 reexamination fee which was approved on April 4, 1984 and thereafter paid to Petitioner. By Petition dated June 19, 1984, Petitioner requested an administrative hearing to contest the Respondent's denial of his application to retake the Florida optometry examination which was scheduled for August 1984. The instant rule challenge was subsequently filed in September 1984. (Testimony of Petitioner, Gardner, Petitioner's Exhibit 10) The policy statement announced by the Board at its May 3, 1984, meeting that applicants for reexamination must have passed the National Board examination within a period of five years prior to such application was first applied in 1984 and was uniformly applied to all applicants for reexamination who had not taken the National Board examination within the requisite period prior to application. (Testimony of Gardner)
The Issue The issues in this case are: (1) whether Petitioner’s application pursuant to Section 458.315, Florida Statutes, for a temporary certificate to practice in an area of critical need should be granted or denied; and (2) whether Petitioner is entitled to withdraw his application prior to action by the Board of Medicine on the merits of the application.
Findings Of Fact Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.” It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows: Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. [Emphasis added.] The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine. The full Board of Medicine denied Petitioner’s request to withdraw his application. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion. The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure by area of critical need by DENIED. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary actions and license application denials by state boards in the United States. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case granting Petitioner’s application for a temporary certificate to practice medicine in communities of Florida where there is a critical need for physicians. DONE AND ENTERED this 22nd day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 22nd day of April, 2004.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed to practice optometry in Florida. Respondent's license was suspended for 60 days and placed on probation for one year beginning in 1979, after he pled guilty to charges of violating rules relating to competence in the practice of optometry and patient record maintenance. The charges in the instant proceeding arose from his treatment of Linda (age 13) and Judy Agnew (age 11), beginning in June, 1981. He prescribed corrective glasses for both girls. Their mother, Mrs. Jean Braybrooks, had Linda's prescription filled, but became immediately dissatisfied when Linda could not see properly with the glasses. Mrs. Braybrooks advised Respondent she was stopping payment on her check to him and took the children to another optometrist, Dr. Palmisano. She received new prescriptions for her daughters from Dr. Palmisano and her daughters have had no difficulty with these glasses. Mrs. Braybrooks subsequently filed a complaint in this matter and Petitioner's investigators sought to obtain patient records on Linda and Judy Agnew from Respondent. The investigators contacted Respondent in October and November, 1981, but were advised on both occasions that he had destroyed those records. Petitioner presented the testimony of Dr. John Walesby, who was qualified as an expert witness in the practice of optometry, including accepted standards of optometric care in the Tampa Bay area. Dr. Walesby examined the Agnew children in December, 1981, and determined that the prescriptions they received from Respondent were improper. Dr. Walesby determined that the prescription for Linda Agnew was at considerable variance with the correct prescription and was unacceptable by community optometric care standards. 1/ The prescription for Judy Agnew, while not miscalculated, did not allow for the child's ability to adapt to the prescription. Again, this treatment failed to conform to accepted community standards. Apparently one of the prescriptions at issue was signed by an unlicensed employee of Respondent in his behalf. It was not established that this was done outside Respondent's supervision or that it was improper.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of the charges contained in the Administrative Complaint to the extent set forth herein and revoking his license to practice optometry in Florida. DONE and ENTERED this 22nd day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 22nd day of April, 1983.
Findings Of Fact Respondent is, and has been at all times material to this proceeding, a community pharmacy in the State of Florida, having been issued permit number 0008482. Respondent's last known address is A & C Pharmacy #2, 1053 Washington Avenue, Miami Beach, Florida 33139. On May 29, 1984, and May 30, 1984, an audit was conducted at respondent's pharmacy by investigators for the Department of Regulation. The audit covered the period from March 15 1984, the date the permit was first issued and the business first opened, to May 29, 1984. The audit revealed that the pharmacy was unable to produce records to account for shortages in the following controlled substances, 1/ as defined in Chapter 893, Florida Statutes, and the evidence revealed the shortages to be in the following amounts: DRUG SHORTAGE Librium 5 mg. 62 capsules Darvon Compound 65 120 capsules Tenuate 75 mg. 130 tablets Valium 5 mg. 55 tablets Valium 10 mg. 8 tablets Librium's generic name is chlordiazepoxide, Darvon Compound 65 contains propoxyphene, Tenuate's generic name is diethylpropion, and Valium's generic name is diazepam. Section 893.07(1)(b), Florida Statutes, requires that every person engaged in dispensing controlled substances maintain "on a current basis a complete and accurate record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him . . ." The audit revealed that the respondent did not have records that showed the disposition of the controlled substances listed above. The records of respondent were in disarray and, to some extent, were mixed with the records of a related pharmacy, A & C Pharmacy #1, located on Flagler Street. Controlled substances were often ordered at the same time for both pharmacies and, on occasion, drugs ordered by one store were delivered to the other. Indeed, due to the poor record keeping, there was some confusion concerning the amount of Tenuate received by the respondent and, accordingly, the amount of the shortage. It is undisputed that respondent received 200 tablets of diethylpropion or Tenuate, on April 9, 1984. On May 10, 1984, an additional 100 tablets of diethylpropion were ordered. The invoice revealed that these tablets were ordered by the A & C Pharmacy on Flagler Street. However, Mrs. Rodriguez provided the invoice to the auditors as part of respondent's records. She also told the auditors that 100 tablets of Tenuate had been transferred from the Flagler Street pharmacy to the respondent due to orders being mixed-up and drugs ordered by one store being delivered to the other. The auditors therefore determined that respondent and received 400 Tenuate tablets: 200 on April 9th, 100 on May 10th, and, an additional 100 transferred from the Flagler pharmacy. There were 170 tablets in respondent's inventory, and no records of any sale. Thus, the auditors determined that there was a shortage of 230 tablets. However, from the evidence presented at the hearing, it appears that the 100 tablets that Mrs. Rodriguez mentioned were the same 100 tablets shown on the invoice dated May 10, 1984. Ms. Jorge's testimony linked the tablets that were transferred to an invoice that had the Flagler pharmacy's address (T-73), and Mr. Bludworth's testimony established that the only records showing purchases were the invoices of April 9 and May 10, 1984. (T-34) Thus, the shortage of Tenuate was 130 tablets rather than 230 tablets. At the time of the audit some of respondent's records, the prescriptions filled, had been sent to Luis Cruz, a Medicaid preparer. However, there was no evidence that any of the prescriptions that had been sent to Luis Cruz were for the controlled substances audited. The evidence establishes that respondent has failed to maintain, on a current basis, a complete and accurate record of each substance manufactured received sold, delivered or otherwise disposed of by respondent. On May 10, 1984, an inspection of Respondent's pharmacy was conducted by an investigator for the Department of Professional Regulation. At the time of the inspection, Ada Rodriguez, the owner of A & C Pharmacy was in the prescription department. Ada Rodriguez is not a licensed pharmacist in the State of Florida. The pharmacist on duty was not present when Ada Rodriguez was in the prescription department. There was no pharmacist on the premises at the time the inspection began, and the prescription department was not locked. No activity was observed by the investigator which would be consistent with an unlicensed pharmacist dispensing drugs. When the inspection was conducted, the business hours for the store where respondent's pharmacy is located were 8:30 a.m. to 5:00 p.m., Monday through Friday, and 9:30 a.m. to 3:30 p.m. on Saturday. When the inspection was conducted, the prescription department hours were from 9:00 a.m. to 3:00 p.m., Monday through Friday, thus the prescription department was open a total of thirty (30) hours a week. Rule 215-1.14, Florida Administrative Code, provides in part as follows: [A]t all times when the prescription depart- ment is closed, either because of the absence of a . . . pharmacist or for any other reason, said prescription department shall be . . . locked or padlocked so as to prevent the entry into said department by persons not licensed to practice pharmacy in the State of Florida, and at such times no person other than a person licensed to practice pharmacy in Florida shall enter or be permitted to enter the prescription department. . . . Rule 215-1.24 provides, in part, as follows: Any person who receives a community pharmacy permit pursuant to Section 465.018, Florida Statutes, and commences to operate such a establishment shall, for the benefit of the public health and welfare, keep the prescription department of the establishment open for a minimum of forty (40) hours per week and sixty (60 percent) percent of the total hours the establishment is open each day. . . . Since Mrs. Rodriguez has been informed by the investigators of the restricted access requirement for the prescription department, she has not gone into the prescription department except when the licensed pharmacist has been present. Upon being informed by the investigators of the minimum-hour requirements, the respondent expanded the working hours of the licensed pharmacist in order to increase the number of open hours of the prescription department in order to meet the provisions of Rule 215-1.24. The Respondent's pharmacy meets the needs of the predominantly Spanish-speaking neighborhood by providing pharmacy services with a Spanish- speaking pharmacist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that respondent violated the requirements of section 893.07(1)(b), Florida Statutes, and rules 215-1.14 and 215-1.24, Florida Administrative Code, as alleged in Counts I, II and IV of the Administrative Complaint, and that, pursuant to section 465.023(1)(c), Florida Statutes, respondent be placed on probation for two (2) years, with the following terms: Respondent shall be inspected two (2) times per year, and respondent shall pay the reasonable costs of such inspections. Respondent shall remit a fine of $500 to the Board of Pharmacy within forty-five (45) days of filing the final order. DONE and ENTERED this 28th day of January, 1986, in Tallahassee Leon County Florida. DIANE A. GRUBBS 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 28th day of January 1986.
