The Issue By this petition, Horace R. Morgan, Jr., M. T. seeds a review of the Division of Health's denial of Mr. Morgan's application for licensure as a clinical laboratory supervisor.
Findings Of Fact The facts herein involved are largely undisputed. Mr. Morgan acknowledges that the experience computations made by the Respondent from the attachment to his application for licensure, Exhibit 3 herein, are correct; and that, as computed, the total experience of Mr. Morgan comprises seven years and four months. Mr. Morgan, however, contends that the practice of the Respondent in allowing credit only for months inn which an applicant is employed in a laboratory and requiring twelve months of such employment for one year's credit is not correct. The Petitioner's position appears to be that he should be given credit from the time he was initially employed as a laboratory technician through the intervening years he has been employed without regard to periods in which he was not so engaged. Petitioner's second point of contention is that, as acknowledged by the Respondent, he has a total of 70 credit hours in academic training, and therefore his experience requirements should be reduced accordingly. Rule 10D- 41.04, F.A.C. Laboratory Personnel Qualifications Supervisor, provides the minimum qualifications of a supervisor. These include successful completion of three years of academic study (a minimum of 90 semester hours or equivalent) in an accredited college or university, and at least seven years of experience in a clinical laboratory; or successful completion of two years of academic study ( a minimum of 60 semester hours or equivalent) in an accredited college or university and at least ten years of experience in a clinical laboratory. Petitioner contends that 70 hours of academic study should result in a lessening of the amount of practical experience required. Petitioner's basic contention is that the additional ten hours of academic study should be equivalent to one year of of experience, inasmuch as 60 hours of academic study requires ten years experience to qualify for supervisor, whereas with 90 hours academic study, only seven years experience is required to qualify as supervisor. On the other hand, Respondent's witness, who is in charge of reviewing all applications such as Morgan's, testified that the Division has interpreted the regulations to require a successful completion of three years of academic study and seven years experience, or successful completion of two years academic study and ten years experience in order to qualify as a laboratory supervisor. No interpolations have been allowed between these two requirements, and this interpretation of the rule has been followed since the rule was promulgated some seven or eight years ago. She further testified that she had credited Morgan with his experience periods in the manner that has been used to credit all other applicants since the rules were adopted. Under this long standing interpretation of the regulations, Morgan has seven years and four months experience as indicated on his application, and he also has 70 hours credit for academic study. Accordingly, even had Morgan been credited with nine years experience as he would have if given credit for every year he has been licensed, he still would not meet the minimum requirements to qualify as a supervisor.
The Issue At issue in this proceeding is whether Respondent, Department of Health ("Department"), acted contrary to the agency's governing statutes, rules or policies, or the bid specifications in its proposed decision to award the contract for Invitation to Bid No. DOH 12-007 (the "ITB") to Intervenor Quest Diagnostics Clinical Laboratories, Inc. ("Quest").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: On July 10, 2012, the Department issued the ITB. The ITB solicited bids for a three-year contract for the provision of clinical laboratory services to the Department and county health departments. The ITB estimated that the winning bidder will perform approximately 861,000 tests annually, which will produce sales of $9.3 million per year. Bids were received from four vendors: LabCorp, Quest, Florida Reference Laboratory, and Ecolab Group Co. The bids were opened on August 17, 2012. The Department found all four bids responsive. The ITB specified that the Department would make a single award based on the grand total of pricing for specified "core tests" for the initial three-year term and for a contingent three-year renewal term. Quest was the lowest bidder, and LabCorp was the second lowest bidder. The sum of Quest's core test pricing for the original three-year term and the contingent three-year renewal term for the relevant laboratory services was $29,555,864.96. The sum of LabCorp's core test pricing for the original three-year term and the contingent three-year renewal term was $36,059,437.52. Section 3.2 of the ITB provided definitions pertinent to the bid, including the following: Mandatory Requirements or Minimum Requirements -- means that the Department has established certain requirements with respect to proposals to be submitted by Respondent.1/ The use of shall, must, or will (except to indicate simple futurity) in this solicitation indicates compliance is mandatory. Failure to meet mandatory requirements will cause rejection of the bid or termination of the Contract/Purchase Order. Minor Irregularity -- used in the context of this solicitation and prospective Contract/Purchase Order, indicates a variation from the proposal terms and conditions which does not affect the price of the response, or give the respondent an advantage or benefit not enjoyed by other Bidders, or does not adversely impact the interests of the Department.2/ Section 4.15 of the ITB, titled "Responsive and Responsible," provided as follows: The Bidder shall complete and submit the following mandatory information or documentation as a part of the Bid Package. Any response which does not contain the information below shall be deemed non- responsive. Licensures-- Centers for Medicare & Medicaid Services, Clinical Laboratory Improvement Amendments, Certificate of Compliance and State of Florida Agency for Health Care Administration Clinical Laboratory License Staffing Plan Attachment I Bid Price Pages-- Attachment III Initial Term & Renewal term (including balance of line minimum volume discount and phlebotomy services Required Certifications, Attachment VI The ITB provided no further clarification regarding the contents of the "Staffing Plan" beyond directing the bidders to "Attachment I" to the ITB. Attachment I was titled "Specifications of Clinical Laboratory Services" and contained six pages of additional specifications regarding services included in the bidders' prices, contractor liability, minimum tasks to be completed by the winning bidder, deliverables, and other requirements. Attachment I included the following specifications regarding staffing: Staffing Levels Each prospective offeror shall include its proposed staffing for technical, administrative, and clerical support including but not limited to a Contract Representative, Quality Control Manager, Staff Pathologist, Project Manager, Technical Support Manager, Technical Support Staff and statewide field representatives. The bidder shall provide hourly rate pricing, as an option to the contract, for an on-site Phlebotomist. The successful offeror shall maintain an adequate administrative organizational structure and support staff sufficient to discharge its contractual responsibilities. In the event the Department determines that the successful bidder's staffing levels do not conform to those promised in the proposal, it shall advise the successful offeror in writing and the successful offeror shall have 30 days to remedy the identified staffing deficiencies. Professional Qualification The successful bidder will be responsible for the staff affiliated with this proposal, insuring that they have the education, any professional licensure or certification which may be required by law, and experience necessary to carry out their duties. Staffing Changes The successful bidder shall staff the project with key personnel identified in the bidder's proposal, which are considered by the Department to be essential to this project. The bidder shall keep the Department notified of key staffing changes that directly impact services related to this solicitation. (Textual emphasis added.) The underscored language required the prospective offerer to include "proposed staffing" and required that the winning bidder staff the project with "key personnel identified in the bidder's proposal." The issue is whether the "Staffing Levels" and "Staffing Changes" provisions quoted above required the bidder to name the specific persons who would fill the "proposed staffing" and "key personnel" positions, or whether it would suffice for a bidder to indicate that it would fill those positions with qualified persons to be named after the bid is awarded. The term "key personnel" is undefined by the ITB. It is unclear from the specifications whether the "key personnel" referenced in "Staffing Changes" is synonymous with the "proposed staffing" referenced in "Staffing Levels." LabCorp interpreted "key personnel" to mean those persons named in the "Staffing Levels" provision: Contract Representative, Quality Control Manager, Staff Pathologist, Project Manager, Technical Support Manager, Technical Support Staff, and statewide field representatives. In its staffing plan, LabCorp provided the names of persons corresponding to each of the "Staffing Levels" positions named in the ITB, including a list of 69 field representatives and 19 sales support persons. The staffing plan submitted by Quest stated as follows: Quest Diagnostics has more than adequate staffing and capacity to meet the needs of the Florida Department of Health. Quest Diagnostics employs a Customer Solutions Manager (contract representative), Quality Assurance Manager (quality control manager), Medical Director and Senior Staff Pathologists, Project Manager, Specimen Processing Manager (technical support manager), Lab Manager (technical support staff), and Account Managers (statewide field representatives). Job descriptions for these positions are attached. Following this statement was a series of detailed job descriptions setting forth the qualifications, experience requirements and responsibilities for each of the named positions. Thus, Quest provided the Department with a set of job qualifications corresponding to the "Staffing Levels" provision of Attachment I to the ITB, but did not provide the name of a specific person to fill any of the positions. The Department concluded that Quest had sufficiently "identified" its key personnel. LabCorp did not provide the detailed job descriptions that Quest provided. For example, Sharon Kaplan is listed as "Project Manager" without further description of her qualifications, experience or duties. LabCorp contends that the ITB required the vendors to name specific persons who would fill those positions. The Department counters that the requirement to "identify" key personnel does not necessarily mean that the bidder must name the persons involved, and that Quest satisfied the ITB's requirement by "identifying" the positions it intended to fill and the qualifications for the positions named in the "Staffing Levels" section of Attachment I. Regina Taylor, the administrative service director of the Department's Bureau of Public Health Laboratories, performed the "responsive and responsible" review of the bids.3/ Ms. Taylor testified that the ITB "left the staffing plan a bit open-ended and left it up to the vendor as to how they would present it to us." The Department found both bids responsive though Quest and LabCorp each took a different approach to describing its staffing plan. Ms. Taylor stated that Quest would be able to name its personnel during the implementation process. She noted that LabCorp's bid provided the names of personnel but offered no detailed information regarding the qualifications or responsibilities of those persons beyond their job titles, whereas Quest provided detailed job descriptions without naming the persons who would fill the jobs. Ms. Taylor was not overly concerned about either company's ability to satisfy the requirements of the ITB. She stated, "Both Quest and LabCorp are national companies, so I'm sure that they have the adequate staff." The "Professional Qualification" section of Attachment I provides that the successful bidder is responsible for insuring that staff is properly qualified and certified. The "Staffing Levels" section allows the Department to review the successful bidder's staffing levels and require the bidder to remedy any deficiencies within 30 days of the Department's written notice. Ms. Taylor testified that the staffing provision section of the ITB was intended to ensure that the winning bidder had within its organization certain critical positions. The Department relied on its own experience in operating the state public health laboratory to identify the staffing requirements of the ITB. LabCorp points out that Quest was the only bidder that failed to submit a list of names of key personnel. Like LabCorp, Florida Reference Laboratory, and Ecolab Group Co. submitted the names of their key personnel. LabCorp also points out that Ms. Taylor's initial reaction to Quest's staffing plan submission was to call it "lame." Ms. Taylor's pronouncement on the quality of the Quest staffing plan was not a part of her review or of the Department's decision. Whether or not it she found it "lame," Ms. Taylor concluded that Quest's staffing plan was responsive to the bid criteria. The ITB requires the bidder to "identify" the "key personnel" with whom it proposes to staff the project. The ITB also states that the Department considers these key personnel to be "essential to this project." However, the ITB does not expressly define the term "key personnel." LabCorp named persons to fill the positions named in the Staffing Levels provision of Attachment I, which it reasonably took to be synonymous with "key personnel" referenced in the Staffing Changes provision of Attachment I. Via its staffing plan, Quest "identified" the key personnel without naming them. Given the lack of precision in these "open-ended" ITB specifications, both LabCorp and Quest made reasonable responses to the staffing requirements. Each chose a different way of "identifying" key personnel. Neither could be found to have clearly failed to comply with the bid specifications. The Department acted reasonably in finding both bids responsive. If LabCorp were correct that Quest's bid response did not comply with the staffing specifications, the question would arise as to whether Quest's deviation from the ITB specifications was a "minor irregularity" that could be waived by the Department. As noted above, the ITB defines "minor irregularity" as a variation from the bid specifications that does not affect the bidder's price or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interests of the Department. LabCorp has not identified any adverse impact on the Department that Quest's failure to name its proposed staff or key personnel would have. Indeed, LabCorp is hard pressed to state what advantage the Department gains by having the vendor name 69 field representatives and 19 sales support persons in its bid. The names are likely meaningless to the Department. "Sharon Kaplan, Project Manager" provides no more useful information than does Quest's description of the education, knowledge, and experience it requires of a project manager. The Department's concern was vendor capability to adequately staff the project, and the Department reasonably concluded that both vendors' bids demonstrated that capability. The basis for award of this bid was the lowest price. There was no scored evaluation of the ITB responses, no ranking of the staffing plans, and no effort contemplated by the Department to investigate the qualifications of the named personnel. The staffing plans submitted by LabCorp and Quest were of equal value to the Department as an indication of the vendors' understanding of the bid criteria and ability to fill the necessary positions. The ITB anticipates that the Department will deal with any staffing problems after the contract is awarded and the successful bidder begins to implement its program. LabCorp fails to identify any price advantage that Quest would gain by not naming the persons who would fill the key personnel positions, and none is apparent. Whether or not the personnel are named in the bid, the key positions would have to be filled at a cost that would presumably be roughly the same for each vendor. Again, the ITB gives the Department the power to raise staffing questions with the successful bidder and to require that problems be remedied within 30 days of written notice. LabCorp contends that Quest's failure to name key personnel gave it an advantage not enjoyed by other bidders. LabCorp argues that it went to the time and expense of preparing a detailed staffing plan, whereas Quest cut corners by submitting a set of generic job descriptions. Quest's method of setting forth its staffing plan may or may not have made its bid preparation easier, but did nothing to improve its competitive position in the bidding process. Quest's commitment to fill the required staffing positions was equal to LabCorp's. LabCorp points out that its own staffing plan included persons who are already on its payroll. LabCorp did not offer an estimate as to the likelihood that all of the approximately 102 persons named in its staffing plan would still be on its payroll by the time the company commenced performing the contract. LabCorp has no way of guaranteeing that all of those persons will be present to perform on the contract. Under the "Staffing Changes" provision, LabCorp would be allowed to substitute other qualified LabCorp employees for the named persons should the need arise. The virtual certainty of employee turnover supports the Department's position that the ITB did not require that bidders undertake the task of naming the employees who would fill the positions set forth in the "Staffing Levels" section of Attachment I. LabCorp argues that Quest's staffing plan gives it the opportunity to delay or avoid altogether hiring the staff necessary to perform the contract to the Department's satisfaction. As noted above, the inclusion of employee names in the bid could not guarantee that the named employees would still be working for LabCorp after the bid award. Quest's commitment to staff the project was no less than LabCorp's. LabCorp's argument suggests that Quest's bid should be rejected because Quest may later choose to breach the contract, which specifically requires the vendor to provide adequate qualified staff. In any procurement, there is always a remote potential that the winning vendor will breach or default. The Department's contract provides remedies for such defaults. In summary, it is found that the bids of both LabCorp and Quest met the requirements of the ITB as to staffing plans. Even if LabCorp's narrow interpretation of the ITB's requirements were correct, Quest's non-conforming response would constitute a minor irregularity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Health enter a final order dismissing Laboratory Corporation of America, Inc.'s formal written protest and awarding the contract for Invitation to Bid No. DOH 12-007 to Quest Diagnostics Clinical Laboratories, Inc. DONE AND ENTERED this 10th day of December, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2012.
The Issue The issue for consideration in this matter is whether Respondent's license as a clinical laboratory supervisor should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, Board of Clinical Laboratory Personnel, was the state agency in Florida responsible for the licensing of clinical laboratory personnel and the regulation of the clinical laboratory profession in this state. Respondent was licensed by Petitioner as a clinical laboratory supervisor holding license number JC 10663. Respondent came to Florida in 1973. He held a bachelor’s degree at that time and immediately took the test for licensure as a laboratory technician, which he passed. A year later, he also took the test for licensure as a laboratory supervisor and passed that test as well. His licenses require that he take 24 continuing education course hours in his specialty every two years. During the course of a routine departmental audit of the continuing education requirements for the biennium of July 1, 1996 to June 30, 1998, Respondent was asked for evidence of his completion of the required continuing education courses. He went through his personal continuing education file and extracted the records on file for the required period. In doing so, Respondent claims he found evidence of a course in chemistry he had completed and sent in to the provider, Anderson Continuing Education, for grading and completion certification, but he received no certificate of his completion of this course. Respondent is adamant that he mailed the completed course materials to Anderson on June 14, 1998. He claims he also sent the Board copies of what he sent in, along with other information he had. Records at the Board reflect Respondent submitted certificates reflecting completion of 25 continuing education hours. However, 12 of those hours, those for chemistry, were not shown to have been completed during the biennium. Mr. Moore was advised of this by the Board. The records available reflect that on July 30, 1996, Respondent was granted a completion certificate for three continuing education hours for advanced troubleshooting (Course CC-0019741); on May 14, 1998, a certificate for completing one hour for Course CC-0021660 and two hours in Advances on the AIDS Horizon: 1998; and on June 2, 1998, a certificate for seven hours in Clinical Application of Laboratory Data. The certificate of completion for the 12-hour course in Clinical Chemistry; Theory, Analysis, Correlation, Section 1, reflected the completion date of January 13, 1999. Respondent contends he completed the course materials and sent them in to Anderson for grading within the required biennium, and the answer sheet submitted by Respondent at the hearing reflects on the top of the first page thereof Respondent’s hand-written notation that it was sent to Anderson on June 12, 1998. This contradicts the notation by Anderson that the required material was not submitted for certification until January 13, 1999, well after the completion of the pertinent biennium. Respondent contends he is aware of what is required and when the deadlines are. He is also aware of how long it generally takes Anderson to grade the submitted materials. Though he contends he submitted the 12-hour chemistry course materials in June 1998, he claims he didn’t realize Anderson had not received it or graded it. It was not until the audit, he contends, when he found he had not received a completion certificate, that he sent the answer sheet in again. Respondent asked Anderson if the Board would backdate the certificate for the 12-hour chemistry course to reflect it was completed during the biennium. Respondent claims it was not his idea to do so, but he did it at the request of the Board auditors who asked him to get a statement from Anderson that they could not backdate certificates. When Respondent was notified of the audit, he wrote to the Board and indicated the out-of-biennium date on the chemistry certificate was inaccurate. Based on that claim, a representative of the Board made a courtesy call to Anderson to advise the Board of the problem. Anderson did not admit that a mistake had been made. If Anderson had admitted a mistake, Respondent would have received credit for the course. Respondent contends he was selected for this audit of his continuing education as retaliation because he requested to take the test for licensure in microbiology. He indicates he requested the test on December 18, 1998, and called the Department frequently thereafter when he did not hear anything. It was shortly thereafter that he was notified that he was being audited. According to Sharon L. Knight, a program administrator in continuing education and education audit for two of the Department’s regulatory Boards, of which one is the Petitioner herein, usually 10 percent of the licensed practitioners in a profession are subjected to an audit of their continuing education each cycle. Audits are usually conducted within four to six months after the end of a biennium. The list of those selected is computer-generated. Respondent was identified by the computer for audit. Based on the evidence presented, it is found there is no evidence the audit of Respondent’s continuing education record was in any way retaliation for his request to take the microbiology examination, or based on any other improper foundation. Respondent is adamant that he completed the required chemistry course material and submitted it to Anderson for certification within the biennium. However, he admits he did not check with Anderson when he did not receive a timely certificate of completion, but he attributes this to the fact that at that time his mother moved in with him. Absent any indication of irregularity in Anderson’s grading process, it is found that the chemistry course, accounting for 12 hours of continuing education, was not completed by Respondent and submitted for grading within the biennium in issue. Any gratuitous comments which may have been made to Respondent by the Department’s investigator regarding the seriousness of the allegations are irrelevant and not considered herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent pay an administrative fine of $250.00 and that he be reprimanded. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 6th day of April, 2000. COPIES FURNISHED: Lawrence F. Kranert, Jr., Esquire Agency for Health Care Administration Post Office Box 14229 Mail Station 3 Tallahassee, Florida 32317 Steven Moore 1735 Michigan Avenue Northeast St. Petersburg, Florida 33703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Pete Petersen, General Counsel Department of Health 2020 Capital Circle Southeast Tallahassee, Florida 32399-1701 Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Constance M. Liccione, is a licensed clinical laboratory technician, having received said license in October, 1979 from respondent, Department of Health and Rehabilitative Services (HRS). In the summer of 1983, petitioner began making inquiry with HRS concerning the requirements to take the clinical laboratory supervisor examination. Because of either a communication's breakdown, or a failure of the agency to promptly reply to her request, she was not told of the specific requirements until 1984, and it was only in April, 1985 that she was able to get confirmation from HRS that she had nine years and one month of clinical experience, and when coupled with her 90 semester hours of academic study in the science field, she was eligible to sit on the supervisor examination. For some unexplained reason, she also was unable to obtain an application form from HRS and finally she had to obtain one from a local junior college. On April 5, 1985, Liccione filed her application to take the October, 1985 supervisor examination. At that time, the examination consisted of two parts: (a) administration and supervision, and (b) technical specialties for which the applicant wished to be licensed. In June, 1985, HRS adopted a sweeping change in its rules (Chapter lOD-41) governing eligibility for all supervisor examinations taken after October, 1985. Under the new rules, HRS requires an applicant for licensure as a supervisor to meet all new requirements for a clinical technologist. This will require Liccione to either have a bachelor's degree in science, or to have completed 90 semester hours or equivalent and to have completed a one-year internship in an approved school of Medical Technology. In addition, in view of the more stringent eligibility requirements, the examination no longer includes testing on the technical specialties, but only has testing in the administration and supervision area. Liccione meets neither of the two new requirements. Therefore, she is barred from taking any examination after the October 1985 examination until she either obtains a college degree in science or completes a one-year internship. Liccione is understandably upset because it took almost two years to learn from HRS if she was qualified under the old rules to take the supervisor examination, and therefore she missed 3 or 4 opportunities to take the examination under the old criteria. Because of the new rules, it is now an all or nothing proposition on the October, 1985 examination. When Liccione became aware of the impending rule change, she contacted HRS to determine if she could get a waiver of the old rule which required her to take an examination in various technical specialties. The old rules required supervisor candidates to pass an examination in each of the specialties or subspecialties for which the license is sought. Based upon her nine plus years of experience, Liccione desired a waiver in the five technical specialties of microbiology, serology, chemistry, hematology and immunohematology for which she is already licensed as a technologist. After considerable give and take between the two, HRS agreed to present her request for a waiver to the Clinical Laboratory Advisory Council (Council). The Council considered the same on October 3, 1985 and denied her request. That prompted the instant proceeding. As a result of HRS's decision, she was required to take both parts of the old examination. Her results are not of record. There have been no waivers of the technical specialty part of the examination granted since HRS began regulating clinical laboratories in 1967. However, under the provisions of Rule 10D-41.27, Florida Administrative Code, as they existed prior to June, 1985, examination in each of the specialties area was permissive, and not mandatory since the rule merely required that ". . . supervisors. . . may be required to pass an examination given by (HRS) in each of the specialties. . . for which the license is sought." (Emphasis added.) Liccione presently has an HRS issued temporary supervisor license which expires after she receives the results of the October, 1985 examination. She is acting as the supervisor of a clinical laboratory for a medical doctor in Port St. Lucie, Florida and as such is in charge of all technical aspects of the operation. She has written the procedures manual for the laboratory which was approved by HRS inspectors, and is active in all five specialties for which she seeks a waiver. As noted above, by this time she has almost ten years of practical experience, and has worked in hospitals and laboratories in both a technician and supervisor capacity. These qualifications were not disputed. At final hearing HRS did not question the above qualifications but relied instead upon statistics which reflected that candidates with qualifications comparable to Liccione had done poorly on the examination. It also pointed out that when Liccione took the specialties examination for a technician, her scores were "never. . . more than 4% higher than minimum established competency in any technical specialty." From this, HRS opined that Liccione's chance of success on the examination was not good, and that she was not entitled to the requested waiver. It also fears that a bad precedent will be set if Liccione's request for a waiver is approved. However, the undersigned finds the uncontradicted practical experience, education and training to be the more persuasive and credible evidence on the issue of whether such training, education and experience is adequate to warrant a waiver of the five technical specialties on the examination. In this regard, it is noted that there was no evidence to show that such experience, education, and training was not comparable to the new requirements in Rule 10D-41.69(2), Florida Administrative Code, or that such experience, education and training was not adequate to demonstrate competence in the five specialties in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for a waiver of the technical specialty part of the October, 1985 examination be GRANTED, and if petitioner receives a passing grade on the administration and supervision portion of the examination, she be issued a clinical laboratory supervisor license. All other requests for relief should be DENIED. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2Oth day of January, 1986. COPIES FURNISHED: James A Liccione 168 S.W. Selva Court Port St. Lucie, Florida 33452 K. C. Collette, Esquire 111 Georgia Ave., Third Floor West Palm Beach, Florida 33401
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: By letter dated August 11, 1986, the Respondent advised the Petitioner that her application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, was denied. The letter provided that the application was denied because the Petitioner does "not have a B.S. degree required under Section 10D-41.68(3), Florida Administrative Code." By letter dated September 9, 1986, the Petitioner requested a formal administrative hearing. The Petitioner took and passed the proficiency examination for clinical laboratory technologists given by the U.S. Office of Health and Human Services (formerly Department of Health, Education and Welfare) in 1977. Based in part on the Petitioner's satisfactory grade on the federal examination, she was licensed in the State of Florida as a clinical laboratory technologist in microbiology, clinical chemistry, hematology and histology. The Petitioner has over six years of pertinent clinical laboratory experience. The Petitioner does not have a bachelor's degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Charlotte Holton's application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, be DENIED. DONE AND ORDERED this 11th day of May, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4067 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner Rejected as subordinate and/or unnecessary. Adopted in substance in Findings of Fact 1 and 2. Addressed in Conclusions of Law section. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 5. Rejected as argument. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 4. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rejected as legal argument. Rejected as legal argument. COPIES FURNISHED: Ms. Charlotte Holton 4200 Northwest 76th Avenue Pompano Beach, Florida 33065 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue, Suite 790 Miami, Florida 33128 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On March 17, 1977, the Petitioner, Rosa M. Richardson, made application with the State of Florida, Department of Health and Rehabilitative Services, to become a licensed clinical laboratory technologist. After reviewing the application of the Petitioner, the application was rejected by the Respondent. The rejection was made in the form of a letter addressed to the Petitioner, that letter being dated April 12, 1977, and appearing in the record as Joint Exhibit #2 by the parties. Basis for the denial of the license application was the allegation by the Respondent that the Petitioner had failed to have 60 semester hours of academic study as required by Section 10D-41.25(9), Florida Administrative Code. Subsequently, by a pleading entitled Amendment to Notice of Denial of License, the Respondent indicated that it recommended the rejection of the license application on the additional ground that the Petitioner failed to have four years of pertinent experience in an approved laboratory, again under the provisions of Section 10D-41.25(9), Florida Administrative Code. The Petitioner disagreed with the opinion of the Respondent concerning the issue of her qualifications to become a licensed laboratory technologist, and by correspondence of May 9, 1977, requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings for consideration. On the initial date of hearing of August 18, 1977, the Petitioner gave testimony concerning her work experience. Some of that experience pertained to a job which she held in May, 1972 through July, 1975, this employment being with the Department of Business Regulation, Division of Pari-Mutual Wagering. The job there was working in the racing laboratory doing routine urinalysis of the horses who were running on the race program. An additional function was to do blood tests for the presence of drugs in certain prisoners who were incarcerated by the law enforcement officials in Dade County. Mrs. Richardson also worked six months at a regional laboratory as a laboratory technician I. This employment was during the year 1975. Those duties included DKU for new born babies, in other words testing for phenylhetonuria. In 1975 through 1977,to include the date of hearing, the Petitioner worked for the North American Biological Laboratory Inc. of Miami, Florida. This job was as a laboratory technician. Some of the duties included routine tests for hepatitis. Mrs. Richardson had also worked from July, 1968 through March, 1977 with the National Cardiac Childrens Hospital in Miami, Florida, as a laboratory assistant. All the work related experience stated above was in the position of a laboratory technician; that is to say that the work was in a position of a laboratory employee and under the supervision of a person qualified in laboratory work. Mrs. Richardson's educational background includes a high school diploma from the State of South Carolina; and two years of various courses at the Miami Dade Junior College to include courses in Math, Biology and Chemistry; however, the only courses in which the Petitioner received credit in this latter enrollment period was the credits for Math. The amount of total hours was three credit hours. This initial enrollment in the Miami Dade Junior College was in the years 1968 through 1970. Mrs. Richardson has also completed a course offered by Charron-Williams College, Paramedical Division. This course was offered in the City of Miami, Florida, and was completed by the Petitioner on August 2, 1974. Moreover, a diploma was given to Mrs. Richardson indicating that she had completed the prescribed course as a clinical laboratory technician. The Respondent concedes that the Petitioner is entitled to function as a laboratory technician and as a matter of fact the Petitioner is licensed by the Respondent in that capacity. As stated before, the opposition of the Respondent to the licensure of the Petitioner pertains to the attempt of the petitioner to be a licensed laboratory technologist. From the position taken at the hearing, the Respondent has abandoned its position in opposition to the licensure based upon the failure of the Petitioner to have completed at least four years of pertinent experience in an approved laboratory. This change in position by the Respondent has been made in view of the prior experience which the Petitioner has. On the second matter of opposition which pertains to the requirement of a minimum of 60 hours or equivalent in quarter or trimester hours in an accredited college or university with a chemical, physical or biological science as a major subject, the Respondent still asserts that the Petitioner has failed to meet those requirements. When this modified position was made known to the Petitioner in the course of the August 18, 1977 hearing, it was brought to the attention of the undersigned that the Petitioner was presently attending a college program which would lead to the completion of 60 semester hours or equivalent of work which would bring about an approval of her application to be a licensed laboratory technologist. By agreement of the parties, the hearing was recessed to allow the Petitioner to pursue that course study with the understanding that if the Petitioner decided that she was unable to achieve licensure through the completion of that course study, this knowledge could be made known to the undersigned and a recommended order would be drafted on the basis of the information which had been presented at the August 18, 1977 hearing. A period of time passed in which no one indicated their position on the question of requiring a recommended order to be made. This period of inactivity came to a close when the undersigned was made aware of the fact that the Petitioner wished to have a determination of the issue of her entitlement to a license as a laboratory technologist made before any completion of the current program in which she has enrolled. Therefore, on March 6, 1978 the hearing was reconvened. At that time it was offered into the record that 21 hours out of the needed 60 hours had been completed in the junior college program in which the Petitioner was now enrolled. Consequently, it left the hearing in the posture that any entitlement which the Petitioner would have to a license as a laboratory technologist must be conferred on the basis of the completion of the course with Charron-Williams College or some other alternative method expressed in Section 10D-41.25, Florida Administrative Code. This provision of the Florida Administrative Code pertains to the requirements for licensure as a laboratory technologist. A perusal of those requirements leads to the conclusion that the only possible basis for licensure which could be demonstrated, after an examination of that section, and in view of the testimony, would be the Section 10D-41.25(9), Florida Administrative Code, that provision states: 10D-41.25 Laboratory Personell -- Quali- fications, Technologist. A technologist shall meet one of the following requirements: * * * (9) Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as a major subject, and at least four years of pertinent experience in an approved laboratory, or There are insufficient credit hours in the current enrollment In the junior college to meet the 60 semester hours or equivalent demand. Likewise, an examination of the Composite Exhibit #2, by the Petitioner, which includes the diploma, would show that the course study with Charron-Williams College was for purposes of becoming a clinical laboratory technician and not for the purpose of becoming a laboratory technologist. Moreover, assuming for purposes of argument that the program was designed as a course for clinical laboratory technologists, the credit received from Charron-Williams would not qualify because Charron- Williams is not an accredited college or university within the meaning of the aforementioned section of the rule. That rule is Section 10D-41.25, Florida Administrative Code. This conclusion on the subject of accreditation has been reached by an examination of Section 483.051(11), Florida Statutes. That provision says that the Respondent may approve the curriculum in schools and colleges offering education and training leading toward the granting of a license. The Respondent has taken the opportunity to set the qualifications and by its Section 10D-41.22(11), Florida Administrative Code, has defined the term accredited. In that provision it states: 10D-41.22 Definitions. In addition to definitions set forth in Section 483.041, F.S., as used in this chapter, unless context indicates to the contrary, the following terms shall mean: (11) Accredited -- refers to educational accreditation by a nationally recognized accrediting agency or association as deter- mined by the U.S. Commissioner of Education, or the Florida Department of Education, or, on an equivalent basis by the Department of Health and Rehabilitative Services. In the course of the hearing proof was offered that the publication Higher Education-Education Directory (1974-75), published by the U.S. Department of Health, Education and Welfare, Education Division; is a directory which list the institutions accredited by agencies, which agencies are recognized by the U.S. Commissioner of Education as being an acceptable accrediting agency or association. That publication does not list Charron-Williams College as being an accredited institution for purposes of academic study, at the time that the Petitioner received her diploma from that college. Finally, the Charron-Williams College seems to recognize that it has not achieved sufficient status to even have its graduates licensed as clinical laboratory technicians, a lesser level of endeavor than that necessary to become a clinical laboratory technologist. This recognition is stated in the December 23, 1977 letter from the president of the Charron-Williams College, Miami, Florida, addressed to the Director of the Office of Laboratory Services within the State of Florida, Department of Health and Rehabilitative Services. This letter may be found as Respondent's Exhibit #1, entered into evidence. Through that correspondence, the president of the college is requesting of the Respondent those things necessary to have its students accepted for licensure. Upon the consideration of all the facts, the petitioner does not qualify for licensure as a laboratory technologist within the meaning of Chapter 483, Florida Statutes, and Section 10D-41.25, Florida Administrative Code.
Recommendation It is recommended that the license application made by the Petitioner, Rosa M. Richardson, to become a licensed laboratory technologist be denied. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Rosa M. Richardson Leonard Helfand, Esquire 17935 Northwest 47th Place Department of Health and Carol City, Florida 33055 Rehabilitative Services 2445 West Flagler Miami Florida 33135
Findings Of Fact By letter dated April 14, 1986, the Respondent denied the Petitioner's application to take the medical technologist examination in microbiology under the provisions of the Florida Clinical laboratory Law, Chapter 483, Florida Statutes because the Petitioner did not show "verification of 4 years pertinent microbiology experience required under Section 10D-41.69(5), Florida Administrative Code." By letter dated May 6, 1986, the Petitioner disputed the factual allegations contained in the Respondent's letter of denial and requested an administrative hearing. An informal administrative hearing was held in this cause on August 25, 1986. The hearing officer at the informal proceeding concluded that there were disputed issues of material fact and that the case should be reset for a formal hearing. On November 26, 1986, the Department of Health and Rehabilitative Services referred the matter to the Division of Administrative Hearings for conduct of a formal administrative hearing. On February 17, 1987, a Notice of Hearing was mailed to both parties setting this cause for April 15, 1987, in Miami, Florida. The Petitioner's notice was addressed to 461 Lee Drive, Miami Springs, Florida 33166. All documents within the case file indicate that that is the Petitioner's correct address. The Notice was not returned to the Division of Administrative Hearings by the postal service. The Petitioner failed to attend the formal hearing, did not send a representative and did not communicate with the undersigned in any way regarding the formal hearing. After waiting approximately 45 minutes past the scheduled time for commencement of the formal hearing, the hearing was opened and the Respondent indicated that it did not desire to present any evidence. Therefore, no evidence was taken and the hearing was adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petitioner's application to take the medical technologist examination in microbiology be denied. DONE and ORDERED this 6th day of day May, 1987 in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1987. COPIES FURNISHED: Leonard Helfand, Esquire District XI Legal Counsel 401 Northwest 2nd Avenue Suite 1040 Miami, Florida 33128 Robert Acle 461 Lee Drive Miami Springs, Florida 33166 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact This cause was scheduled for formal hearing to commence at 9:30 a.m. on August 19, 1996, by Notice of Hearing entered June 7, 1996. Although Respondent appeared for the formal hearing, Petitioner did not and no one appeared on Petitioner's behalf. The hearing was adjourned at 10:25 a.m. To date, Petitioner has made no contact and has filed no document or other pleading regarding Petitioner's failure to appear. As a result of Petitioner's failure to respond to Respondent's Request for Admissions, the following statements, inter alia, have been deemed admitted: Petitioner did not graduate from high school and does not have a graduation equivalency diploma (GED). Petitioner has not completed a Board- approved school-based ABHES program, a Board-approved laboratory-based training program with 400 hours in the specialty for which Petitioner seeks licensure plus a completed Board-approved general clinical laboratory course, or a medical licensed technician program accredited by CAHEA or CAAHEP or NAACLS. Petitioner has not completed coursework on HIV/AIDS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a clinical laboratory technician. DONE and ENTERED this 23rd day of September, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 23rd day of September, 1996. COPIES FURNISHED: Diane Orcutt, Executive Director Agency for Health Care Administration Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Jose N. Gonzalez 12820 Southwest 43rd Drive Apartment 232D Miami, Florida 33175 Michael Mone, Esquire Office of the Attorney General The Capitol PL-01 Tallahassee, Florida 32399-1050
Findings Of Fact On April 30, 1985, Petitioner filed an application for employment as a clinical laboratory technician with Indian River County, Florida and in support of that application presented a temporary license from Respondent authorizing Petitioner to work in the capacity of a clinical laboratory technician until the receipt of the April 27, 1985examination results but no later than December, 1985. The license provided that failure to appear to take the April 27, 1985 examination invalidated the temporary license. On April 30, 1985, Petitioner filed an application with Respondent for licensure as a clinical laboratory-technician. Prior to April 30, 1985, Petitioner had not filed an application for licensure as a clinical laboratory technician with Respondent. He did not take the April 27, 1985 examination. On May 2, 1985, Doris E. Roy, an employee of Indian River County, mailed a copy of the temporary license presented by Petitioner to the Respondent as a result of a telephone conversation with Nancy Chapman, an employee of Respondent. Prior to making application for employment with Indian River County, Petitioner had worked as a clinical laboratory technician with Insta Med Clinic, Inc. from June, 1984 to April, 1985 and had taken laboratory training as a clinical laboratory technician at University Community Hospital, Tamarac, Florida from September, 1982 until May, 1983. The temporary license presented by Petitioner to Indian River County had been altered to show Petitioner as the temporary licensee but the evidence was insufficient to prove that Petitioner had in any way altered the temporary license. Petitioner's testimony that he received the temporary license through the corporate office of his previous employee, Insta Med Clinic, Inc. is believable, but his testimony that he had no knowledge of, or any reason to believe that, the temporary license was anything other than genuine prior to presenting it to Indian River County on April 30, 1985 is not credible. This is based on the following considerations: Particularly when you consider: (a) Petitioner's completion of required laboratory training wherein individuals are trained to meet the requirements for licensure as a clinical laboratory technician in Florida; (b) Petitioner's knowledge of the language in the temporary license indicating that Petitioner's application had been reviewed when, in fact, Petitioner had never submitted an application: (c) the statutory language requiring the application to be under oath which puts Petitioner on notice that he must fill out the application personally and not rely on someone else to file his application; and, (d) Petitioner's failure to take the April 27, 1985 examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative Services enter a final order DENYING Petitioner's application for licensure as a clinical laboratory technician. Respectfully submitted and entered this 1st of November, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985. COPIES FURNISHED: K. C. Collette, Esq. HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401 Mr. Richard J. Strang 8775 20th Street, No. 157 Vero Beach, FL 32960 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301 ================================================================ =
