The Issue The issues presented are whether check marks that Respondent placed on the test booklets of some students during the second day of a Florida Comprehensive Assessment Test violated Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B-1.006(3)(a), (b), (d), and , (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate No 484481 (teaching certificate). Respondent is certified to teach physical education through June 30, 2009. The Hillsborough County School District (District) has employed Respondent as a physical education teacher for 10 years. In March 2004, the District employed Respondent as a physical education teacher at Gorrie Elementary School (Gorrie). At Gorrie, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth grade students sometime in March 2004. Ms. Jacquelyn Cross was the teacher and test administrator for the class. As a proctor, Respondent's responsibilities during the FCAT were minimal. Respondent was responsible to assist the test administrator and to be available in the event of an emergency. It is undisputed that during the second day of testing Respondent made check marks in the test booklets of some students. The check marks coached the affected students during the FCAT test in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Neither Petitioner nor the legislature has defined the term "coach" for the purpose of the cited statute. Nor did Petitioner adduce evidence to support a finding that the definition is a matter within the scope of agency expertise. The plain and ordinary meaning of the term "coach," in relevant part, is to "train or tutor" a student. The American Heritage Dictionary of the English Language, 353 (4th ed. Houghton Mifflin Company 2000) (American Heritage). Respondent tutored the affected students because the check marks had the effect of instructing the affected students. American Heritage at 1860. Respondent "knowingly or willfully" coached the affected students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Respondent intended a check mark to signal a student that the student should reread the particular question or passage. No aggravating factors are evidenced in the record. However, several mitigating factors are in evidence. For reasons discussed hereinafter, no finding is made that Respondent had actual knowledge that her actions violated the relevant statute. The evidence to support such a finding is less than clear and convincing. Similarly, the evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(d), (e), (4)(b), and (5)(a), respectively, by intentionally suppressing or distorting subject matter relevant to a student's academic program, intentionally exposing a student to unnecessary embarrassment or disparagement, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, or by failing to maintain honesty in all professional dealings. The evidence is less than clear and convincing that Respondent received any training from either her employer or Petitioner in how to proctor an FCAT. Gorrie administrators assigned Respondent to proctor approximately a week before the scheduled test. During the first day of testing, the test administrator walked through the classroom and pointed to incorrect answers recorded by some of the students. The test administrator also used verbal prompts such as, "you obviously haven't read that passage," and "you need to go back and reread that." During the second day, Respondent followed the example set by the test administrator during the first day of the FCAT and chose check marks as a means of prompting the students to recheck their answers. The test administrator had received training in the administration of the FCAT. Respondent's reliance on the example of the test administrator was reasonable under the circumstances. Nothing in the record shows that the check marks made by Respondent on the test booklets intentionally distorted or misrepresented facts concerning an educational matter within the meaning of Florida Administrative Code Rule 6B-1.006(4)(b). Respondent would not accept similar assistance from a proctor during a test Respondent was taking and was concerned about the actions she took during the second day of testing. That night during a class attended by Respondent, she asked a peer if the actions of the test administrator and Respondent were appropriate. The peer stated the actions were inappropriate and explained that Respondent could be disciplined for her actions. When Respondent proctored the FCAT on the third day of testing, Respondent did not coach the examinees. Another teacher reported to the assistant principal that some of the students proctored by Respondent had received assistance during the FCAT. When the assistant principal questioned Respondent, Respondent freely admitted her actions, but denied that she knew at the time that her actions were inappropriate. Nothing in the record shows that Respondent failed to maintain honesty in all her professional dealings within the meaning of Florida Administrative Code Rule 6B-1.006(5)(a). Although Respondent had proctored the FCAT in previous years, the evidence is less than clear and convincing that Respondent had received any training in how to proctor an FCAT. Respondent's name does not appear on the sign-in sheet for the FCAT training session in March of 2003. The evidence is less than clear and convincing that Respondent did anything in previous years except follow the lead of the test administrator. Respondent did not receive a copy of the 2004 FCAT test manual. Gorrie administrators did not ask Respondent to read the manual or instruct Respondent as to its contents. The evidence is less than clear and convincing that the check marks provided by Respondent were a material violation. It is less than clear and convincing that the check marks altered or interfered with the responses of the affected students within the meaning of Subsection 1008.24(1)(c), Florida Statutes (2003). Although some test booklets showed changes in student answers, it is less than clear and convincing that any check mark by Respondent caused a student to change his or her answer. None of the affected students testified. In the absence of clear and convincing evidence that Respondent's actions affected the answers of examinees, no finding is made that Respondent assisted examinees in answering test questions in violation of Florida Administrative Code Rule 6A-10.042(1)(c). For the same reasons, no finding is made that Respondent violated Florida Administrative Code Rules 6A- 10.042(1)(d) and 6B-1.006(3)(a) and (b), respectively, by interfering with an examinee's answers to questions, failing to make a reasonable effort to protect examinees from conditions harmful to learning, or unreasonably restraining a student from independent action in his or her pursuit of learning. Nothing in the record shows that the check marks on test booklets were intended to suppress or distort subject matter within the meaning of Florida Administrative Code Rule 6B-1.006(3)(d). Gorrie administrators invalidated the test results of the 15 students in the test administrator's class. However, the invalidation of those tests did not invalidate the FCAT as a whole and did not prevent students with invalidated results from progressing to a higher grade. It is less than clear and convincing that the violation committed by Respondent was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). No rule applicable to the discipline of a teaching certificate defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the violation was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the violation satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2003). Although Respondent's employer issued a letter of reprimand to Respondent, suspended her without pay for two days, and transferred Respondent to a different school, the District continues to employ Respondent. The testimony of District personnel, including fellow teachers and parents, makes it clear that Respondent has been and continues to be an effective teacher. Although the incident received attention in two newspaper articles, the articles are not in evidence, and no finding can be made concerning the adverse effect of the publicity. For similar reasons, no finding is made that the check marks on test booklets violated Florida Administrative Code Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment or disparagement. None of the affected students testified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of coaching students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003), not guilty of the remaining charged violations, issuing a written reprimand to Respondent, and requiring Respondent to complete relevant training before proctoring another FCAT. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of December, 2005. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether proposed rules 590-2.002, 590-3.003, 590-5.001, 590- 5.002, 590-5.006, 590-9.002, 590-9.004, 590-10.004 and 590-13.006 are an invalid exercise of delegated legislative authority.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background These cases arose after respondent, Board of Clinical Laboratory Personnel (Board), published in the Florida Administrative Weekly its notice of intent to adopt certain revisions in Chapters 59O-2, 59O-3, 59O-5, 59O-6, 59O-9, 59O-10 and 59O-13, Florida Administrative Code. The proposed rules deal with the subject of alternate site testing within the state. The Board was created by the legislature in 1992 to regulate clinical laboratory personnel. Its authority and duties are set forth in Part IV of Chapter 483, Florida Statutes. The Board's purpose is to ensure the protection of public health, safety, and welfare through the regulation of clinical laboratory personnel. To this end, the Board is required by law to prescribe minimal qualifications for clinical laboratory personnel. Alternate site testing is any "laboratory testing done under the administrative control of a hospital, but performed out of the physical or administrative confines of the central laboratory." It can only exist in a hospital under the direct supervision of the central clinical laboratory and its clinical laboratory director. The alternate site laboratory does the same type of testing as does the central laboratory but it uses different equipment. Alternate site testing is performed using ten to twelve instruments specifically designed for that purpose, and which specifically incorporate safeguards to prevent misuse or misinterpretation. Clinical laboratory personnel are persons who perform clinical laboratory examinations on specimans derived from the human body for the purpose of delineating information for the diagnosis, management and treatment of patients. There are four classes of clinical laboratory personnel, namely, technician, technologist, supervisor and director. Within the category of technician are various specialty categories including clinical chemistry, hematology, immunohematology, histology, radioassay, serology, microbiology, exclusive use and alternate site. In general terms, the proposed rules define an alternate site technician, set forth the curriculum requirements for training programs for alternate site technicians, state the minimum standards for licensure as an alternate site technician, prescribe the initial licensure and renewal fees for alternate site technicians, set forth the scope of practice for all clinical laboratory personnel, and enumerate the responsibilities of alternate site technicians including limits on tests that can be performed with this type of licensure. These rules were adopted after various workshops, public meetings and member conference calls were conducted by the Board in 1993 and 1994. As clarified by a more definite statement, petitioners in Case No. 94- 5968RP, Florida Perfusion Society (FPS) and Florida Hospital Association (FHA), contend that all or parts of proposed rules 590-2.002, 590-3.003, 590-5.006, 590-9.002, 590-9.004, 590-10.004 and 590-13.006 are invalid on the grounds (a) the Board exceeded its rulemaking authority, (b) the rules are arbitrary and capricious, and (c) the rules contravene the law being implemented. Petitioners in Case No. 94-5969RP, Florida Society of Pathologists (FSP) and Dr. Louis S. McCann, Jr., have challenged proposed rules 590-5.001 and 590-5.002 on the grounds the two rules contravene the statutes being implemented and are arbitrary and capricious. Petitioner in Case No. 94-5970RP, Florida League of Hospitals (FLH), has challenged the validity of all the proposed rules on the ground the Board has exceeded its rulemaking authority. In addition, it has challenged Rules 590-2.002(7), 590-5.006(2), 590-9.002(4), 590-9.004(7) and 590-13.006 on the ground they contravene the statutes being implemented. Intervenor, Florida Coalition of Professional Laboratory Organizations, Inc., is a nonprofit corporation representing twelve organizations who represent the interests of laboratory professionals licensed under Part IV of Chapter 483, Florida Statutes. It supports the challenged rules and is aligned with the Board in these proceedings. Standing Respondent has stipulated to the standing of the FSP, a professional association of pathologists, and Dr. McCann, its president-elect, and thus there is no dispute that those petitioners are substantially affected by the proposed rules. FPS is a statewide professional medical society representing professional cardiovascular perfusionists in Florida. Perfusionists are principally known for the safe operation and maintenance of the heart-lung machine in open heart surgery. The FPS currently has more than one hundred members, most of whom are actively engaged in the practice of perfusion. The purpose of the FPS is to promote perfusion education and clinical expertise and to address the professional interests of perfusionists on issues affecting the profession, including representation before governmental bodies. Perfusionists are regularly required to perform the type of tests that are performed at alternate sites as part of their profession. The proposed rules would directly regulate their practice. In addition, a substantial number of FPS members would be affected by the proposed rules because they would be required to obtain a license as a laboratory professional in order to continue practicing using alternate test sites, or to use alternate test sites in the future. As such, they are substantially affected by the proposed rules. The FHA is a statewide, nonprofit trade association representing all types of hospitals in the state. As of August 1994, or three months before the hearing, it had 233 institutional members (licensed hospitals), plus various organizational and individual members. Its purpose is to serve its members by developing and promoting programs and services that will enhance their ability to provide comprehensive, efficient, high quality health care to the people of Florida. The association also represents its members at the state and national levels in providing an effective health care system. Only hospitals with clinical laboratories can have alternate site laboratories where alternate site technicians would be employed. The number of institutional members having clinical laboratories is not of record nor is the number of hospitals who plan to operate alternate site laboratories. Even so, it may be reasonably inferred that at least some of the hospitals provide clinical laboratory services in their facilities and, in the future, they intend to provide alternate site testing. Because the proposed rules require medical professionals already licensed or certified to obtain an additional license, limit the professionals who can provide these services, and impose regulatory and financial requirements on the provision of those services, the institutional members of the FHA are substantially affected by these proceedings. Moreover, because the proposed rules impose new training requirements on medical personnel, the hospitals who employ such individuals would be required to absorb the cost of training these employees and providing coverage for their duties while they are being trained. In these respects, they are further impacted by the rules. The FLH is a trade association comprised of seventy-six for-profit hospitals. Of its seventy-six members, seventy-three have clinical laboratories. Because the proposed rules limit the categories of hospital personnel who could be licensed as alternate site testing technicians and restrict the tests that these licensees can perform, the FLH is substantially affected by the proposed rules. Legislative History of Alternate Site Testing In 1993, the Florida Legislature adopted Chapter 93-178, Laws of Florida. That act specifically provided for the implementation of alternate site testing in Florida. The section relating to alternate site testing, which has been codified as Subsection 483.051(9), Florida Statutes, provides as follows: (9) Alternate Site Testing.- The agency, in consultation with the Board of Clinical Laboratory Personnel, shall adopt, by rule, the criteria for alternate-site testing to be performed under the supervision of a clinical laboratory director. The elements to be addressed in the rule include, but are not limited to: a hospital internal needs assessment; a protocol of implementation including tests to be performed and who will perform the tests; criteria to be used in selecting the method of testing to be used for alternate-site testing; minimum training and education requirements for those who will perform alternate-site testing, such as documented training, licensure, certification, or other medical professional background not limited to laboratory professionals; documented inservice training as well as initial and ongoing competency validation; an appropriate internal and external quality control protocol; an internal mechanism for identifying and tracking alternate-site testing by the central laboratory; and recordkeeping requirements. Alternate-site testing locations must register when the clinical laboratory applies to renew its license. For purposes of this subsection, the term "alternate-site testing" means any laboratory testing done under the administrative control of a hospital, but performed out of the physical or administrative confines of the central laboratory. (emphasis added) The bill which became Chapter 93-178, Laws of Florida, originated as PCB 93-01 of the House Committee on Health Care. It was later filed as House Bill 2071 (HB 2071), Medical Tests and Procedures/Sunset. The overall purpose of the bill was to review provisions of Part I of Chapter 483 related to clinical laboratories, which was scheduled for sunset review under Section 11.61, Florida Statutes. The original version of PCB 93-01, dated January 28, 1993, had no provisions relating to alternate site testing. During consideration of the bill on February 3, 1993, the House Committee on Health Care amended PCB 93-01 to provide for rulemaking by the Board. Specifically, the amendment stated that "(t)he board shall adopt rules for alternate site testing to be performed under the supervision of clinical laboratory director." However, the authority for the Board to adopt rules was subsequently removed from the bill by amendment on the House floor on March 23, 1993. The House bill was then considered by the Senate, which amended the House bill on March 31, 1993. The amendment was a "strike everything after the enacting clause" amendment. In effect, the amendment substituted all new bill language in place of the House bill, while retaining the bill number of HB 2071. The alternate site testing language substituted was identical to the bill that had been considered in the Senate as SB 156, which, among other things, added subsection 483.051(9), relating to alternate site testing. This provision gave rulemaking authority to the Agency for Health Care Administration (ACHA) "in consultation with the Board of Clinical Laboratory Personnel." The Senate passed the amended bill and this version was returned to the House. The House then passed HB 2071 as it had been amended and passed in the Senate (with two amendments not related to alternate site testing). The Senate then concurred in the final House version. The amendment relating to subsection 483.051(9) (on alternate site testing) remained intact and eventually became the current Subsection 483.051(9), Florida Statutes. Subsection 483.051(9), as adopted, specifically delegates the rulemaking authority for alternate site testing to AHCA. That provision calls for "consultation" with the Board, but does not give the Board any rulemaking authority. The Board had a designated member, George Mavros, who represented the Board during the legislative session. Initially, the Board recognized ACHA's exclusive rulemaking authority in a report from its legislative liason and in discussions with affected public at its regularly scheduled meetings. That position was reiterated in an official letter to a representative of an affected organization from the Board's chairman. The chairman was specifically authorized to speak for the Board, and the letter reflected the official position of the Board at that time. In its discussions and letters, the Board specifically stated that the newly adopted statute did not give the Board rulemaking authority. Such public statements and letters are evidence of the Board's contemporaneous construction of the statute that it had no authority to adopt rules governing alternate site testing. Since that time, however, the Board has taken an opposing position, that is, that it has authority to adopt rules pertaining to alternate site testing requirements, and the rules under challenge are the end product of this changed position. The statute authorizing AHCA to adopt rules is clear on its face and unambiguous. Moreover, the legislative history reveals that during the 1993 session the legislature specifically considered the delegation of rulemaking authority to the Board in an early version of the bill. The provision giving specific rulemaking authority to the Board was deleted by later action of the same legislature. The final version of the bill contains a delegation of rulemaking authority to AHCA and omits any delegation to the Board. This is clear evidence that the legislature considered giving rulemaking authority to the Board, and instead evinced a clear intent to give exclusive rulemaking authority to AHCA. The legislature cannot be said to have simply forgotton the authority of the Board. Subsection 483.051(9) specifically sets forth the Board's role as a consultant. If the legislature had intended to "split" the rulemaking authority for alternate site testing between the Board and AHCA, it would not have specifically set out a different role in the statute. The legislative staff analyses of the bill support these findings. The staff analyses of subsection 483.051(9) refer solely to AHCA when referencing rulemaking authority for alternate site testing. Therefore, the Board did not have statutory authority to adopt the rules. For the reasons given in the conclusions of law portion of this order, the statutes which the Board relies upon for its rulemaking authority are not deemed to be controlling or relevant. Are the Challenged Rules Invalid for Other Reasons? Nothwithstanding the above findings, and solely for the sake of judicial economy in the event an appeal is taken by any party, additional findings are made relative to each of the challenged rules. In making these findings, it is noted that where new grounds for invalidating a rule have been raised for the first time in a party's proposed order, they have been disregarded as being untimely. Further, where a party has not addressed a previously raised ground in its proposed order, the undersigned has assumed that ground has been abandoned. Where a party speaks to a rule in general terms, and not a specific part thereof, and the undersigned is unable to discern which part of the rule is being attacked, that contention has been disregarded. a. Rule 59O-2.002(7) The first challenged rule is 59O-2.002(7), which defines the term "technician in the specialty of Alternate Site Testing" as follows: (7) Technician in the specialty of Alternate Site Testing means a person qualified to be a technician in the specialty of alternate site testing pursuant to the rules of the Board who under the general supervision of a laboratory director, supervisor or technologist may perform specific testing authorized by the Agency pursuant to rule chapter 59A-7 and the Board pursuant to rule chapter 59O-13 in a hospital based alternate site testing environ- ment approved by the Agency pursuant to section 483.051(9), F. S. and whose practice is limited to an alternate site testing environment. The Board had cited Subsections 483.805(4) and 483.811(3) and (4), Florida Statutes, as the specific authority for adopting the rule while Subsections 483.803 and 483.811(3) and (4), Florida Statutes, are cited as the laws being implemented. Besides leveling the broad charge that the Board lacks statutory authority to adopt the rule, a contention already decided in their favor, petitioners FPS and FHA contend that the rule is arbitrary and capricious because it sets up an impossible condition for qualifying as an alternate site technician since necessary related rules in Chapter 59A-7 have never been adopted by AHCA. In order for the proposed rule to become operable, AHCA must first adopt amendments to its Chapter 59A-7, which pertain to alternate site testing laboratories. Also, AHCA must approve a "hospital based alternative site testing environment" in which such tests can take place. At the time of hearing, a draft of new proposed rules 59A-7.034 and 59A-7.035 was being circulated by AHCA, but had not yet been adopted. Even so, the fact that the Board's rule is contingent on further rules being adopted by another agency does not render the rule arbitrary or capricious. The contention is accordingly rejected. (b) Rule 59O-3.003(3)(e) This rule sets out the proposed requirements for training for individuals performing specific alternate site tests. As modified by the notice of change published in the Florida Administrative Weekly on November 10, 1994, the challenged portion of the rule now provides the following training requirements: (e) Notwithstanding all other provisions of rule chapter 59O-3.003, the only require- ments for training in the specialty of Alternate Site Testing shall be 4 contact hours of instruction per test system with an additional 0.5 contact hour of instruction for each analyte above 8 analytes performed on the same test system. The contact hours of instruction shall be by a Board approved continuing education provider approved pursuant to rule chapter 59O-11 which shall include as a minimum instruction in the tasks defined as follows: * * * The terms "analyte" and "test system," which are the guages on which training is measured, are not defined anywhere in the Board's rules. Besides the argument that the Board lacks statutory authority to adopt the rule, petitioners FPS and FHA contend the proposed rule is arbitrary and capricious in that the requirements are excessive and inflexible. They also contend that the rule contravenes the provisions of Subsection 455.201(4), Florida Statutes, which prohibits a regulatory board from adopting "unreasonably restrictive and extraordinary standards" for a given profession. In proposing the number of hours of training for alternate site testing, the Board relied mainly upon its own members' expertise and judgment. It also relied on public comment given at a Board meeting on August 7, 1993, including testimony from a manufacturer's representative. Finally, it relied upon a training and certification program manual by i-Stat Corporation, a manufacturer of equipment used in clinical laboratories, and on other unspecified "documents and manuals." It did not conduct any surveys of professional literature or other outside services, nor did its staff conduct any research on the subject. Initially, it is noted that the proposed rule gives no consideration to the relative levels of medical training and education in the various professions regulated by the rules, even though that can affect how much training time is needed. For some professionals, such as an ICU nurse or emergency physician nurse, four hours of training is excessive, based on approved manufacturer's training protocol. By providing uniform instruction for all professionals, regardless of their prior training, and without any factual basis for doing so, the Board acted in an arbitrary manner. In arriving at the number of hours of instruction required for each test system, the Board relied in part on the testimony of a manufacturer's representative (Mallinckrodt) given at the August 7, 1993 meeting. A review of his comments, however, reveals that the representative recommended far fewer hours of instruction than is provided for in the rule. Moreover, in prescribing four hours training per test system, the Board relied primarily on its own judgment rather than on technical material submitted by other affected persons. Likewise, the basis for the additional 0.5 hours per analyte over eight analytes was not grounded on empirical data. Indeed, analytes and test systems are not even defined in the rule. Given these shortcomings, it cannot be said that the requirements of the rule are based on facts or logic. The rule is accordingly deemed to be arbitrary and capricious. Given this finding, it is unnecessary to reach the issue of whether the rule contravenes Subsection 455.201(4), Florida Statutes, by providing unreasonable and restrictive standards. (c) Rule 59O-5.001(1)(b), (2)(a), and (2)(b) This rule prescribes the educational requirements for the director of a clinical laboratory. Under current standards (rule 10D-41.067), a director must be a physician or a doctoral scientist. By its rule, the Board proposes to allow a person with a master's degree to become licensed as a clinical laboratory director. The challenged portions of the rule read as follows: Education. An applicant shall meet one of the following education requirements: * * * (b) Have a master's degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Experience. An applicant who qualifies pursuant to rule 59O-5.001(1) shall meet one of the following requirements: (a) Have full time pertinent clinical laboratory experience in an approved laboratory subsequent to receipt of the relevant degree as follows: * * * If qualifying under rule 59O-5.001(b), 8 years of experience. * * * Petitioners FSP and Dr. McCann generally contend the foregoing rule contravenes Section 483.800, Florida Statutes, and is arbitrary and capricious in that it allows untrained persons to become laboratory directors. All state clinical laboratories and their personnel are subject to federal regulation under the federal Clinical Laboratory Improvement Act (CLIA). Regulations promulgated thereunder classify clinical laboratories based on the complexity of the tests performed. The three category of tests are waived, moderately complex and highly complex. Laboratories performing waived tests, or those that are simple and pose no risk to the public, are not regulated by CLIA while those performing moderate to highly complex testing must meet CLIA's minimum requirements for quality control, quality assurance and personnel. CLIA regulations link personnel requirements with the complexity of testing. The requirements for moderate and highly complex testing personnel are defined separately and are significantly different. Those facilities providing only moderately complex testing may use directors having both master's level and bachelor's level degrees. In recognition of both the sophistication of highly complex tests and the broad scope of a laboratory director's duties and responsibilities, however, CLIA regulations require directors of clinical laboratories performing any highly complex testing whatsoever to be either physicians or doctoral scientists. It is noted that hospital laboratories and independent laboratories perform highly complex testing, and that any hospital laboratory, including rural hospitals, providing full service functions will perform highly complex testing. Under CLIA regulations, laboratories which perform highly complex testing allow the director to reapportion performance of responsibilities to persons having less qualifications. The overall responsibility, however, rests with the director, and the regulations do not allow a master's level individual to direct the clinical laboratory performing highly complex testing, or to delegate responsibilities to a more qualified individual. The proposed rule would allow master's degree scientists to direct laboratories performing highly complex testing so long as that individual hired a "co-director" who was a physician or a doctoral scientist. Under this arrangement, the co-director would be left with only those responsibilities that the lesser qualified master's level director called upon him or her to perform. In this respect, the proposed rule is at variance with federal regulations. While the Board justifies this change on the ground a study shows a shortage of various professionals in the rural hospital setting, the study itself was not introduced into evidence. Moreover, the rule would apply to all hospitals, whether rural or not. Even though the proposed rule is inconsistent with CLIA, in its filing with the Joint Administrative Procedures Committee, the Board represented that "(t)here is no ascertainable parallel federal rule or standard with which to make a comparison." It is reasonable to infer that this response was given so that the Board would not have to give an explanation of the rule's inconsistency with CLIA. Although the Board had a wide range of input regarding this rule, it failed to address a number of valid concerns raised by the opponents. Because of the nature of the testing involved in laboratories performing highly complex testing, severe injury or even death can result from an incorrect test result being reported by one of the clinical laboratory personnel. It is esential, therefore, that clinical laboratories performing highly complex testing be directed by the most competent and trained personnel. This goal is not attained in the proposed rule. The appointment of a lesser qualified person would also mean that a director would not be able to perform all work functions in the laboratory, something current directors can now perform. Further, the proposed allocation of responsibilities would place virtually all of the professional liability on the "co-director" (physician or doctoral scientist) even though the co-director does not "direct" the laboratory. Finally, even though a laboratory can be licensed by specialty, this does not eliminate the above concerns since a specialty is not limited to moderately complex testing. Given the lack of a factual basis or logic to support the rule as presently proposed, subsections (1)(b), (2)(a) and (2)(b) of rule 59O-5.001 are deemed to be arbitrary and capricious and are thus invalid. These portions of the rule also contravene Section 483.800, Florida Statutes, which requires, among other things, the "licensure of clinical laboratory personnel who meet minimum requirements for safe practice." (d) Rule 590-5.006 This rule sets forth the educational requirements necessary for the specific types of licensure and certification for clinical laboratory personnel. As modified by the Board on November 10, 1994, the rule now reads as follows: 59O-5.006 Technician in the Specialty of Alternate Site Testing. Those persons licensed as a director, supervisor, technologist or technician pursuant to part IV of chapter 483, F.S., can work in the specialty of alternate site testing without additional licensure or certification. Persons only performing waived tests as defined in section 483.041(9), F. S. in a laboratory holding a certificate of exemption pursuant to section 483.106, F. S., are not required to be licensed and need not meet these requirements. Persons certified only under this rule shall not perform testing beyond that defined in rule 590-13.006. Persons who perform testing defined in rule 590-13.006 at alternate testing sites as defined in section 483.051(9), F.S., shall meet the requirements of rule 590-5.006(1), (2) and (3) as follows: Education. Have a high school diploma or its equivalent and Have completed 4 contact hours of HIV/AIDS continuing education pursuant to rule chapter 59O-11. Training. For purposes of this rule the term "licensed" requires a full permanent license not a temporary license. An applicant who qualifies under the education requirements of rule 59O-5.006(1) shall in addition meet one of the following requirements: Is licensed as a registered nurse pursuant to chapter 464, F. S. Is licensed as a radiologic technologist pursuant to chapter 468, part IV, F. S. Is licensed as a respiratory therapist or as a respiratory care practitioner certified to perform critical care services pursuant to chapter 468, part V, F. S. Is a perfusionist certified by the American Board of Cardiovascular Perfusion-ists. Additional Training. An applicant who qualifies under the education requirements of rule 590-5.066(1) and the training requirements of rule 590.006(2) shall in addition meet one of the following requirements: Have successfully completed a Board approved Clinical Laboratory Personnel Technician training program in general laboratory practice principles pursuant to rule 590-3.003(3)(d). Have successfully completed alternate site testing training for each test the applicant will be performing which provides instruction in all subject matter areas of rule 590-3.003(3)(e). After completing the training, the applicant shall submit verification from the laboratory director that the applicant has successfully completed the alternate site testing training. Have received instruction in all subject matter areas of rule 590-3.003(3)(d) or (e) while enrolled in a program leading to licensure under chapters 464, 468, part IV, or 468, part V, F. S., or certification by the Board of Cardiovascular Perfusionists and shall submit verification from the program director of such instruction. Although a number of grounds for invalidating the rule were raised in the initial petitions, in their joint proposed order, the FPS, FHA and FLH have limited their grounds to four: (a) the Board was arbitrary and capricious in limiting the application of the rule to five professions; (b) the Board did not comply with Section 455.201, Florida Statutes; (c) the proposed rule contravenes Section 468.351(2), Florida Statutes, by making the terms of the rule applicable to respiratory therapists and respiratory care practitioners, and (d) the Board was arbitrary and capricious by requiring training for waived tests. The allegation regarding the validity of the requirement in subsection (1)(b) for HIV/AIDS continuing education training has been disregarded as being untimely. The rule applies to respiratory therapists and respiratory care practitioners even though Subsection 468.351(2), Florida Statutes, which governs the practice of those professions, clearly provides that "it is the intent of the Legislature that personnel certified or registered pursuant to this part shall be exempt from the licensure provisions of chapter 483." There is no basis in the record for the Board's contention that the exemption in subsection 468.351(2) applies only to blood gas testing, and no others. Given this lack of support for that limitation, the rule contravenes the provisions of the cited statute, and paragraph (2)(c) is deemed to be invalid. The contention is also made that the Board selected the remaining three classes of professions (registered nurses, radiologic technologists and perfusionists) without any justification. Although the Board contended it studied the type of training and education received by these professions, there is no evidence of such a discussion in the Board records, nor is there evidence that rules regarding education and training of other professions were ever presented to all of the Board members. Further, there is no evidence that the Board ever considered other professionals of equal medical educational background. While the Board did receive information from the American Board of Cardiovascular Perfusionists regarding the certification requirements for that organization, that by itself is an insufficient factual basis to justify the limitation imposed by the rule. Under these circumstances, it cannot be said that the remainder of the rule is supported by facts or logic. Petitioners further contend that the rule contravenes the provisions of Subsection 455.201(4), Florida Statutes, which makes it unlawful for the Board to "create unreasonably restrictive and extraordinary standards that deter qualified persons from entering the various professions." Since the Board acted arbitrarily and capriciously in limiting the approved professions that are subject to the rule, it is found that the proposed rule creates unreasonably restrictive and extraordinary standards for the profession. Finally, by modification to the rule on November 10, 1994, the Board added the following sentence in the first paragraph: "Persons only performing waived tests as defined in section 483.041(9), F. S., in a laboratory holding a certificate of exemption pursuant to section 483.106, F. S., are not required to be licensed and need not meet these requirements." In order to obtain a certificate of exemption, a laboratory must be engaged only in waived tests. These are tests that are relatively simple and pose little risk of harm to the public. Petitioners complain that, while providing this exception to training for waived tests at laboratories holding a certificate of exemption, the Board did not remove the requirement for training for waived tests performed at alternate site testing facilities, and thus the rule is arbitrary. Under the proposed rule, any person performing waived tests, who later becomes certified to perform a moderately complex test, must receive additional training in the waived test as well. While the Board suggests that a hospital can avoid this double training by setting up multiple laboratories in the same location, it failed to provide any justification for this excessive testing. The challenged sentence is accordingly deemed to be arbitrary. (e) Rules 59O-9.002(4) 59O-9.004(7) These two proposed rules levy a $20 fee for the initial and renewal certification of alternate site testing technicians, respectively. In its petition, the FLH contended that the Board lacked statutory authority to adopt both rules, a contention already resolved in petitioner's favor. In its posthearing filing, however, it argues for the first time that the rules are arbitrary and capricious. This contention has accordingly been rejected as not being timely. The FPS and FHA have similarly contended that rule 59O-9.004(7) is invalid on the ground the agency lacks statutory authority to adopt the rule. They also contend for the first time that the rule is arbitrary. This untimely allegation has been disregarded. (f) Rule 59O-10.004 This proposed rule sets forth minimum standards that all laboratory professionals must meet. At issue here are the requirements that all clinical laboratory personnel provide the following services: (14) Process aliquots or components of specimens for analysis according to the type of specimen and procedure to be performed. * * * (18) Recognize output signals and observations and convert them to prescribed units for recording and reporting. * * * In their initial petition, as clarified by a more definite statement, FPS and FHA contended the Board exceeded its rulemaking authority by including professionals engaged in alternate site testing as clinical laboratory personnel subject to Board regulations, a ground already discussed. In their proposed order, petitioners have added the contention that the rule is vague because it contradicts the terms of another rule. Because this newly raised ground is untimely, it has been disregarded. (g) Rule 59O-13.006 The final rule being challenged describes the responsibilities of alternate site testing technicians. Among other things, the rule prescribes the tests that the technicians can perform. The specific portions of the rule which are being challenged read as follows: Alternate Site Testing Technican shall: * * * (b) Perform only tests from the following list provided the requirements of Rule 59O-13.006 have been met: 1. Tests designated as waived pursuant to 42 CFR 493.15, incorporated by reference. * * * 3. Tests designated as moderately complex pursuant to 42 CFR 493.10 and 42 CFR 493.17 which employ whole blood and require no pre- analytical, analytical or post-analytical specimen or reagent manipulation, treatment, extraction, separation or other processing of any kind and must employ an automated single, closed, dry or electrochemical sensor reagent system. The instrumentation shall provide for instrument calibration without any operator adjustment. Post analytical instrument output signals must be directly reportable in the correct units of measure- measure without need for data conversion or other manipulation. Electronic instrumen- tation must have a mechanism whereby the operator is alerted when patient results exceed reportable limits and when internal or external quality control or calibration is not acceptable. Such results shall not be used for the diagnosis, treatment, management or monitoring of patients and shall be validated through the central laboratory. Validation shall be documented at the alternate test site. * * * (j) When affixing the name or signature to any laboratory record or patient report, indicate the professional status by adding the designation "ASTT" to designate Alternate Site Testing Technician immediately following the name or signature if holding a current Florida certificate. The holder of temporary certification must use the designation "GASTT" to designate Graduate Alternate Site Testing Technician until such time as certification is granted by the Board. * * * The specific authority for adopting the rule is Subsection 483.805(4), Florida Statutes, while the laws being implemented are Sections 483.800, 483.813 and 483.825, Florida Statutes. Although a number of grounds for invalidating the rule were raised in the petitions filed by the FLH, FPS and FHA, these grounds have been narrowed in their joint proposed order. As to the newly raised contention that certain parts of the rule, including subparagraph (1)(b)3., are vague, this contention has been disregarded as not being timely. Similarly, the argument that subparagraph (1)(b)3. contravenes the provisions of Subsection 455.201(4), Florida Statutes, was not specifically pled by any party. Likewise, the assertion that paragraph (1)(a) is invalid because its effectiveness is dependent on other rules being enacted has been rejected as being untimely. Since no other viable claim has been raised, the rule is deemed to be invalid on the single ground that the agency has exceeded its rulemaking authority.
The Issue The issue for determination is whether Respondent's certification as a correctional officer should be revoked under the facts and circumstances of this case.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on November 26, 1981 and issued Certificate Number 19-81-500-03. The Respondent was a correctional officer with the Metro-Dade Department of Corrections ("MDDC") during the first four months of 1988. During the year 1988, all correctional officers with MDDC were required to take an annual physical exam which included a urine test. In February of 1988, the Respondent took his physical exam. As part of that exam, Respondent gave a urine sample at Mount Sinai Medical Clinic. The procedures followed in handling and testing the urine sample are set forth in paragraphs 13-26 of these Findings of Fact. The result of the toxicology report from that exam indicated the Respondent had tested positive for cocaine. The Respondent was informed of the test results by the Director of Operations for MDDC, Jerry Meese, who explained to Respondent the steps and conditions that would be necessary in order for Respondent to continue employment with the MDDC as a correctional officer. Respondent voluntarily signed an agreement whereby he acknowledged that he had tested positive for cocaine on or about February 12, 1988. Pursuant to that agreement, Respondent, also agreed to a leave of absence during which time he was to enter a rehabilitation program which he was to continue until he no longer needed assistance. Upon returning to his job, Respondent agreed to submit to random periodic drug screening for a period of twenty four months and agreed that any positive test results during that time period would result in termination. The Respondent did not contest the conditions for continued employment set forth above. After a ten day suspension, Respondent returned to work at MDDC. Respondent was referred by MDDC to New Horizons, a drug counseling program where he received treatment free of charge. On April 14, 1988, Mr. Meese instructed the Respondent to promptly present himself at the testing office to give a urine sample for drug testing. The Respondent stated that he had a family emergency and could not report for testing at that time. Mr. Meese gave Respondent a time period during that day during which he could report. However, Respondent subsequently called and stated he could not come for testing that day because of his family problems. Respondent never reported for testing on April 14 as ordered. On April 15, 1988, the Respondent was again ordered to submit to a urine test as per the drug testing agreement. Later that same day, the Respondent reported to the Mount Sinai Medical Center, which was responsible for the collection of urine samples for the MDDC. On both occasions when the Respondent gave urine samples, (February 12 and April 15) he reported to the Mount Sinai Medical Clinic where the sample was provided by Respondent in a sterile plastic sample bottle with a metal cap. Upon production of a quantity of Respondent's urine into the bottle, the bottle was promptly sealed with its cap and then with evidence tape. On both occasions when Respondent gave a urine sample, a label was placed on the sample bottle containing a unique bar code number. That bar code number was also placed on the chain of custody form which accompanied the bottle. That form included the social security number and signature of the person giving the sample who in each instance in question here was Respondent. On each occasion, the Respondent's bottled urine sample was placed in a locked box and transmitted by courier to Toxicology Testing Service, Miami, Florida, for testing. Until immediately prior to testing, the Respondent's sample was kept in a locked box. The Respondent's first urine sample arrived at Toxicology Testing Services ("TTS") in Miami on February 12, 1988. The second sample arrived on April 15, 1988. On both occasions, the seals placed on the bottles at Mount Sinai were intact upon arrival at Toxicology Testing Services. Both of the sample bottles were opened by Israel Sanchez, a forensic toxicologist technologist. The first sample was opened on February 12, 1988 and the second on April 16, 1988. On each occasion, TTS followed a procedure designed to control the urine sample in the laboratory. Mr. Sanchez dispensed a small amount of each of the samples and introduced it into the laboratory's Hitachi Analyzer for purposes of screening the sample for the possible presence of controlled substances. On each occasion, the samples screened positive for cocaine during this initial screening test. A second screening test was performed on each of the samples and again the screening tests results were positive for cocaine. After the initial screening test results were positive for cocaine, a confirmatory analysis of each of the samples was performed utilizing the gas chromatography mass spectrometry method ("GSMS"). The first GSMS test was performed by Dr. Terry Hall, an expert in the field of forensic toxicology. The first sample was tested in this manner on February 14, 1988 and the second was performed on April 21, 1988 by John de Canel, an expert in the field of forensic toxicology and chemistry. GSMS is an extremely accurate testing procedure (more than 99% accurate) and is the accepted method among forensic toxicologists for identifying drugs and their metabolites. Dr. Hall confirmed that the Respondent's first urine sample contained a metabolite of cocaine, methyl ethylene, in a concentration of 100 nanograms per milliliter. The second urine sample also tested positive for cocaine metabolite. The GSMS test on the second sample revealed a concentration well in excess of 100 nanograms per milliliter and perhaps as much as 1000 nanograms. The concentration levels of 100 nanograms per milliliter on each of the GSMS test results are the result of Respondent's voluntary use of cocaine. Furthermore, the higher level found in the second test is the result of the use of cocaine subsequent to the first test on February 15, 1988. Respondent was dismissed from the MDDC following receipt of the test results from the April 15, 1988 urine test.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent Harry T. Williams' correctional officer certification. Respectfully submitted and entered this 3rd day of November, 1989, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Harry T. Williams 3545 Florida Avenue Miami, Florida 33133
Findings Of Fact The National Council of Examiners for Engineering and Surveying (hereinafter "NCEES") writes and otherwise prepares the examinations for candidates seeking engineering licenses in 55 states and jurisdictions. The examinations are then administered by the states and jurisdictions which constitute NCEES' member boards. Respondent, State of Florida, Board of Professional Engineers, is a member board and uses NCEES' examinations. The Fundamentals of Engineering (hereinafter "FE") examination is given twice a year, in April and in October. The FE examination measures the basic knowledge a candidate has acquired in a bachelor degree program in the first two years during which the candidate takes basic engineering and science courses. Passage of the examination does not result in licensure as an engineer; it results in either an "engineer intern" or an "engineer in training" certificate which shows that the examinee has completed the necessary educational requirements to sit for that eight-hour examination and to have passed it. The next step is that a successful candidate will then complete four years of experience and then pass a principles and practices examination called the "PE" examination in order to then be licensed as a professional engineer. The FE exam is a minimal competency examination. Questions for the FE examination are written by individuals and are then reviewed by a committee. That committee is composed of registered professional engineers who are practicing engineers and engineers from the academic world, from consulting firms, and from governmental entities. Each question or item on the examination is reviewed by at least 12 to 15 individuals during the review process which takes from one to one and a half years. As part of the development process, individual items appear on examinations as pre-test questions. The purpose of using pre-test questions is to determine the characteristics of that specific item, as to how hard or easy the item is when used on the target population (candidates for the FE examination), and to verify that minimally competent candidates can answer the test item correctly. If pre-test questions perform as expected, they are used on subsequent examinations. If they do not perform adequately, the questions go back to the committee to be changed or to be discarded. Pre-test questions on examinations are not scored, and whether an examinee correctly answers that question is irrelevant to the raw score or final grade achieved by that candidate on the examination. Pre-test questions are distributed proportionately throughout the examination, and no subject area on the examination ever consists of only pre-test questions. Pre-test questions are used by other national testing programs. No unfairness inures to candidates from the presence of pre-test questions on an examination for two reasons. First, all candidates are treated equally. Candidates do not know that the examination contains pre-test questions, and, even if they did, they do not know which questions are pre-test questions and which questions will be scored. Second, the length of the examination itself is not increased by adding pre-test questions. The examination has the same number of questions whether pre-test questions are included or not. In the actual exam preparation, NCEES uses American College Testing and/or Educational Testing Service as contractors. The contractors pull the proper number of items in each subject area from the item bank and assemble the examination which is then sent to the NCEES committee of registered professional engineers to see if changes in the examination are necessary. Once approved, the contractor then prints the examination booklets and sends them to the member boards to administer the examination. Answer sheets from an exam administration are transmitted to the contractor for scanning and statistical analysis. The contractor then recommends a passing point based on a scaling and equating process so that future exams are no easier or harder than past exams. When NCEES approves the passing point, the contractor sends the examination scores or results to the member boards. When the examination is changed in some fashion, a new base line or pass point must be established to ensure that the new examination remains equal in difficulty to past examinations and remains a good measure of competency. The new examination is referred to as the anchor examination. The October, 1990, FE examination was an anchor exam. The member boards of NCEES determined that the October, 1993, FE examination would be changed to a supplied reference document examination, meaning that the candidate during the examination could use only the supplied reference handbook, a pencil, and a calculator. Candidates would no longer be able to bring their own reference materials to use during the examination. One of the reasons for the change was fairness to the candidates. The FE examination was not being administered uniformly nationwide since some member boards prohibited bringing certain publications into the examination which were allowed by other member boards. Accordingly, it was determined that NCEES would write and distribute at the examination its Fundamentals of Engineering Reference Handbook, thereby placing all candidates nationwide on an equal footing in that all examinees would be using this same reference material of charts, mathematical formulas, and conversion tables during the examination, and no other reference materials would be used during the examination itself. In August of 1991, NCEES approved the concept of a supplied reference handbook, and a beginning draft was sent to the FE sub-committee of the examination committee for review. The individual members of the sub-committee actually took two FE examinations using the draft of the supplied reference document to ensure that all material needed to solve the problems on an FE examination was included in the reference document and that the document was accurate. On a later occasion the committee took the examination that would be administered in October of 1993 using a subsequent draft of the supplied reference handbook. The last review of the handbook occurred in February of 1993 when the committee used that draft to review the October 1993 examination for the second time, and NCEES' Fundamentals of Engineering Reference Handbook, First Edition (1993) was finished. When NCEES received its first copies back from the printer, it mailed copies to the deans of engineering at 307 universities in the United States that have accredited engineering programs for review and input. As a result, NCEES became aware of some typographical and other errors contained in that document. In July of 1993 NCEES assembled a group of 12 individuals for a passing point workshop for the October 1993 a/k/a the '93 10 examination. The group consisted of three members of the committee, with the remainder being persons working in the academic world or as accreditation evaluators, and recent engineer interns who had passed the FE examination within the previous year and were not yet professional engineers. That group took the '93 10 FE examination using the first edition of the Handbook and then made judgments to determine the pass point for that examination. During that two day workshop, the errors in the Handbook were pointed out to the working group so it could determine if any of the errors contained in the Handbook had any impact on any of the problems contained in the '93 10 examination. The group determined that none of the errors in the Handbook impacted on any test item on the '93 10 FE examination. In September of 1993 subsequent to the passing point workshop, the '93 10 FE exam and the first edition of the Handbook went back to the committee of registered professional engineers for a final check, and that committee also determined that none of the errors in the Handbook would have any impact on the questions in the '93 10 FE examination. An errata sheet to the first edition of the Handbook was subsequently prepared but was not available until December of 1993. In September of 1994 the second printing of the Handbook was completed, and that version incorporated the changes contained on the errata sheet. Of the errors contained in the first edition of the Handbook, only one error was substantive; that is, one mathematical equation was wrong. However, no item on the '93 10 FE exam could be affected by that mathematical error. The remaining errors were typographical or simply matters of convention, i.e., errors in conventional terminology and symbols found in most textbooks such as the use of upper case instead of lower case or symbols being italicized as opposed to being non-italicized. Candidates for the '93 10 FE examination were able to purchase in advance as a study guide, a Fundamentals of Engineering sample examination which had its second printing in March of 1992. The sample examination was composed of questions taken from previous FE exams which would never be used again on an actual FE examination. The sample examination consisted of actual test questions and multiple choice answers. The sample examination did not show candidates how to solve the problems or work the computation, but merely gave multiple choice responses. Errors were contained on the two pages where the answers to the sample examination were given. The answer key was wrong as to two items on the morning sample examination and was wrong for all of the electrical circuit items, one of the subject areas included in the afternoon sample examination. An errata sheet was prepared and distributed in September of 1993 to those who had purchased the sample examination. Petitioner took the '93 10 FE examination, which contained 140 items during the morning portion and 70 items during the afternoon portion. Approximately 25 percent of the questions on the examination were pre-test questions. The minimum passing score for that examination was 70, and Petitioner achieved a score of only 68. Accordingly, Petitioner failed that examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to achieve a passing score on the October 1993 Fundamentals of Engineering examination and dismissing the amended petition filed in this cause. DONE and ENTERED this 14th day of April, 1995, at Tallahassee, 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 14th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-5 and 8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 6 and 9 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being unnecessary to the issues involved herein. COPIES FURNISHED: Wellington H. Meffert, II Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dorian Kenneth Zinck, pro se 521 Beech Road West Palm Beach, Florida 33409 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?
Findings Of Fact Petitioner sat for the certified general contractors' examination on February 18, 1989. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close." Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor. DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 and 2 are rejected as not supported by the record. 3 is accepted but immaterial to the facts ash found and issue raised herein. Respondent's PFOF: 1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward K. Fewox, Jr. 3924 Wormwood Circle Jacksonville, Florida 32210 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration herein is whether Respondent's license as a physician in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Rolando C. Jamilla, was licensed as a physician in Florida. The Board of Medicine is the state agency charged with the regulation of the practice of medicine in this state. Respondent's office for the practice of general medicine in located in Ft. Myers, Florida and Respondent is also the medical director at the Lee Convalescent Center, a nursing home for the elderly with between 140 and 160 beds. Patient A. J. entered the emergency room at Lee Memorial Hospital in Ft. Myers on the afternoon of August 13, 1983, complaining of shortness of breath. A 55 year old male, he previously had been diagnosed as having chronic lung disease, and was a heavy smoker. The physician on duty in the emergency room, Dr. Gavin, treated A.J. with intravenous aminophylline, a bronchodilator, and ordered a theophylline level drawn. Theophylline is a medication the level of which can be measured in the patient's serum. It is a drug which falls within the purview of the proscription in Section 458.331(1). The theophylline test ordered by Dr. Gavin indicated that A.J. had a theophylline level of 11.0 mcg/ml. A normal therapeutic range for theophylline is 10 to 20 mcg/ml. Excessive levels of the substance can result in theophylline toxicity manifested by rapid cardiac rhythm disturbances and possible cardiac arrest. It can also cause neurotoxicity and neurologic seizures. Respondent first saw A.J. at about midnight after his admission and confirmed the orders previously given by Dr. Gavin, continuing the aminophylline. When he saw A.J. the following day, Respondent continued the aminophylline regimen for another day at which time A.J.'s breathing was much more regular and easy and the aminophylline treatment was discontinued. Respondent did not order an aminophylline level test at that time because, in his opinion, since the therapy was being discontinued, the test would not have been of value. A.J.'s condition continued to improve after Respondent discontinued the aminophylline therapy on August 15, 1983 and on the morning of August 18, 1983, Respondent indicated his intent to discharge the patient the following day. However, during that evening, prior to discharge, A.J.'s condition worsened and the proposed discharge for the following day was cancelled by Dr. Bercau, the on-call physician. At this time, A.J. was again suffering severe shortness of breath, and aminophylline, along with other broncodilators, was again ordered by Dr. Bercau. Since, on August 19, 1983, A.J. was still experiencing breathing difficulties, Respondent continued the aminophylline therapy and ordered a series of tests be run on the patient which included an electrocardiogram, a chest x-ray, and a CPK (measure of blood enzyme). Respondent also requested that A.J. be seen in consultation by Dr. Charles, a cardiac specialist. On August 20, 1983, Dr. Bercau, believing that the patient was experiencing cardiac problems, had him transferred to the telemetry unit for continued and detailed monitoring of his cardiac situation and ordered a theophylline level test run on him. This showed that the patient's theophylline level was 36.8 mgc/ml, considered to be in the toxic range. Both Respondent and his expert agreed that at this point, A.J. was experiencing theophylline toxicity. As a result of the chemical tests, Dr. Bercau ordered the aminophylline therapy be discontinued as of the evening of August 20, 1983 and directed another theophylline level test be run. The result of this test, done on the morning of August 21, 1983, indicated A.J.'s theophylline level had reduced to 27.6 mcg/ml, still considered to be in the toxic range, and the doctor's notes for this day indicate that though the theophylline level was high, it was much better than it had been. Notwithstanding this entry in the doctor's notes, on August 22, 1983, Respondent again ordered the resumption of aminophylline therapy. The records do not reflect any indication that Respondent attempted to determine his patient's theophylline level before resuming this therapy. On August 24, 1983, A.J. began to have premature ventricular contractions, a cardiac rhythm disturbance. When Dr. Charles saw the patient that same day, he indicated that these arrhythmias were "most likely" due to the effect of the aminophylline administered. Dr. Charles ordered this drug be discontinued at that time. On August 30, 1983, A.J. was examined by Dr. Dosani, a pulmonary specialist, who ordered the administration of steroids in an effort to counteract the patient's bronchospasms. This apparently was successful since the patient's condition improved and he was discharged from the hospital on September 3, 1983. Aminophylline is a drug which can produce cardiac arrythmia and both cardiac and neurological toxicity can be an outgrowth of theophylline toxicity. Respondent admitted at the hearing he was aware that aminophylline can produce cardiac arrythmia. Respondent's expert, Dr. Chadha, a specialist in lung diseases, utilizes aminophylline on a daily basis since it is widely used in his specialty. Dr. Chadha could find no reason for Respondent to order a theophylline level test when there were no indications of problems manifested to Respondent and he had discontinued the administration of the drug. The patient presented no evidence of toxicity and the two other physicians who were treating the patient at the time both prescribed administration of aminophylline as well as other medication at the time Respondent did. Petitioner's expert, Dr. Cohen, opined that the prescribing of aminophylline simultaneously with oral choledyl is inappropriate and excessive and life-threatening to the patient. According to Dr. Chadha, a review of theophylline level test results at Lee Memorial Hospital for June, 1989, revealed that 31% showed a level in excess of the maximum therapeutic level of 20 mgc/ml. In Dr. Chadha's opinion,, levels of this drug within the body are extremely hard to control. Whereas Dr. Cohen was of the opinion that the Respondent's treatment of his patient, A.J., in these particulars, constituted a failure to practice medicine with the appropriate level of care, skill and treatment recognized as reasonably prudent by similar physicians under similar circumstances, Dr. Ratnesar, an internist testifying as an expert for the Respondent, was of the opinion after reading the medical charts involved, that the care and treatment given in this case by Respondent was well within medical standards. This opinion was confirmed by Dr. Charles, the cardiologist mentioned previously. Respondent admitted another patient, J.H., to the hospital on August 27, 1983. The admitting documents indicated the patient was being admitted for the treatment of pulmonary distress when in reality as admitted by Respondent at hearing, the hospital admission was primarily a "social admission" necessary as a prerequisite to the placement of the patient in a nursing home. The patient, J.H., was not in any actual pulmonary distress either at the time of admission nor at any time during his stay, and Respondent admits this. Nonetheless, Respondent prescribed Theo-Dur, a theophylline bronchodilator, and Halcion, a tranquilizer, for the patient. It is well accepted in medical circles that Halcion should be used with caution when a patient is known to have a respiratory condition because the medication effects the central nervous system which, when depressed, can have an adverse effect on the respiratory function. Dr. Cohen is of the opinion that the prescription of Theo-Dur and Halcion, conjunctively, to the patient was inappropriate and the medical records on this patient fail to indicate a medical basis for it. The records make no reference to diagnostic tests ordered by Respondent for the patient and in Cohen's opinion, they are inadequate and do not justify the treatment provided. Respondent rebuts this contention urging that the use of the two drugs together is neither contraindicated nor harmful. This position is supported by information from the manufacturer of Halcion that there is no known contraindication for its use with Theo-Dur. In fact, none of the witnesses, including Dr. Cohen, could provide any firm evidence of contraindication in the use of the two drugs. Further, the four physicians who testified on behalf of Respondent were of the opinion that his records regarding this patient were adequate. Patient C.T. was a 79 year old woman admitted to the hospital on April 13, 1983, suffering from vaginal bleeding. She was admitted from a nursing home where Respondent had been her treating physician. She was a patient in the nursing home as a result of a stroke she sustained in 1976. Several days prior to her admission to the hospital, Respondent had attempted a pelvic and a bimanual examination of the patient at the nursing home to attempt to confirm the area from which the patient was bleeding. The bimanual examination was unsatisfactory due to her obesity and, because she had a protruding hernia in the abdominal wall. Upon admission, Respondent did not perform any additional specified area examination of the patient either with a speculum or bimanually because of her advanced age and the fact that her family preferred no further discomfort be imposed on her. As a result, Respondent made a presumptive diagnosis that the patient was suffering from cancer of the uterus/cervix, but this was not confirmed by actual examination. The patient was treated medically to stop the bleeding and she was returned to the nursing home with no further complications. Though the examination at the nursing home by the Respondent was characterized as satisfactory and though no positive diagnosis could be confirmed of the cause of the bleeding, Respondent failed to request a gynecological consultation for the purpose of further diagnosis. Due to the family's wishes, however and the advanced age of the patient, this may not necessarily constitute a failure to take proper care. When Dr. Cohen gave his opinion that the failure to do a bimanual and pelvic examination was improper, he was apparently unaware that Respondent had done these examinations at the nursing home three days prior to the patient's admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Rolando C Jamilla, M.D., be placed on probation by the Board of Medicine for a period of two (2) years under such terms and conditions as are specified by the Board, and that as a part thereof, he complete no less than 40 hours of continuing medical education in subjects specified by the Board. RECOMMENDED this 18th day of September, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5414 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. Accepted and incorporated herein. 2.-4. Accepted and incorporated herein. 5. Accepted and, as it pertains to failure to monitor theophylline levels, incorporated herein. 6.-11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.&14. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for the finding that the patient's life was endangered. Rejected. 21.&22. Accepted and incorporated herein., Accepted and incorporated herein but not necessarily dispositive. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. &29. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected. Accepted and incorporated herein. For the Respondent: 1.&2. Accepted and incorporated herein. 3.&4. Accepted and incorporated herein. 5. Accepted and incorporated herein. 6.&7. Accepted and incorporated herein. 8.-11. Not a Finding of Fact but a recitation of testimony. 12.-16. Restatements of the evidence. 17.&18. Accepted and incorporated herein. 19A-D. Not a Finding of Fact but a recitation of testimony. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 James A. Neel, Esquire 3440 Marinatown Lane, N.W. North Fort Myers, Florida 33903 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issue for consideration in this hearing is whether Respondent's license as a physician in Florida 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, Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was licensed as a physician in Florida, holding medical license ME0024661. Respondent is certified in internal medicine. From December 28, 1993, through August 2, 1994, B. O. was the patient of Dr. Martin Marks, during which time the patient was administered several PSA (Protein Specific Antigen) tests at Dr. Marks' order. The first was done on December 28, 1993, and showed a level of 16.6. A PSA test is a blood screening test used in conjunction with a digital rectal examination to detect cancer of the prostate. A PSA test is not, by itself, indicative of the presence or absence of prostate cancer. It is used as a screening tool to help the physician determine whether a patient should be evaluated further for prostate cancer. A digital rectal exam is an exam in which the physician palpates the patient's prostate to determine its size and whether it has an abnormal texture or contains nodules. The digital rectal exam, used in conjunction with the PSA test, ultrasound examination, and biopsy, can determine the presence of prostate cancer. Not all abnormalities of the prostate gland are cancerous. Prostatitis is a non-cancerous inflammation and/or infection of the prostate gland. It is can cause an elevated PSA level and also is diagnosed through the use of a digital rectal exam and urinalysis. Under the state of practice existing in 1994/1995, the physician would "milk" the prostate. This involved applying pressure to the prostate during a digital rectal exam to force the prostate to secrete a discharge which is then excreted from the body in urine and detected and evaluated in a urine test. The normal range for a PSA test is from 0 to 4.0. During the period that Dr. Marks was treating B. O., the patient's PSA test result was, as stated previously, 16.6 on December 28, 1993. Later tests showed a level of 13.2 in January 1994, 7.9 in February 1994, 9.5 in March 1994, and 9.5 in May 1994. During this period, B. O. was treated with an antibiotic for a prostate infection, and, as is seen, his PSA rate declined from 16.6 to 7.9, rising again to 9.5. However, a PSA reading of 7.9 is still almost twice that considered at the top of the maximum range. Respondent first saw B. O. for an insect bite on August 8, 1994. A PSA reading taken on that date showed a level of 10. At that time, B. O. was fifty-seven years old. Proper medical practice provides that a male over fifty years of age, with an elevated PSA reading, normally should receive further evaluation to rule out cancer of the prostate. Respondent noted on the patient's record that date, "show Dr. Marks." Dr. Marks subsequently annotated the record with his own comment on the lab form, reading, "stable." The standard of care in the medical community at that time called for an abnormal PSA result with either additional tests in the office or referral of the patient to a urologist for further evaluation. Respondent did neither. Petitioner's expert claims that when Respondent took over treatment of the patient, who was presenting with an elevated PSA result, he should have at least performed a digital rectal examination or should have referred the patient to a urologist. However, Respondent was aware of the previous higher PSA readings which had been responsive to the administration of antibiotic therapy, and he was satisfied the patient suffered from an infection of the prostate, not cancer. As a result, he did no more on August 8, 1994, than order the patient to have another PSA test, which showed a level of 10, and set up another appointment for the patient with Dr. Marks for three months later. B. O. did not keep the appointment with Dr. Marks. Respondent saw B. O. next again on February 15, 1995, for a complaint unrelated to the patient's elevated PSA reading. Respondent did not do a digital rectal examination of the patient at that time. He only ordered another PSA test to be taken and made an entry in the patient's medical record to make a referral to a urologist if the PSA results were higher. The results of the PSA test taken on February 15, 1995, showed a level of 14.6. Clearly, and consistent with Respondent's entry in B. O.'s record on February 15, 1995, B. O. should have been referred to a urologist immediately. Respondent admits this. However, because B. O. refused a referral, none was made. B. O. saw Respondent on May 2, 1995, and asked for a referral to a orthopedic specialist for a broken hand and fever. Respondent evaluated the hand and also evaluated B. O.'s prostate condition, but did not order a PSA test at that time. Respondent scheduled an appointment with B. O. for May 22, 1995, and on that date, ordered a PSA test. When the result showed a reading of 28.8, Respondent referred the patient to a urologist who diagnosed cancer of the prostate. B. O.'s cancer was treated with a combination of hormonal and radiation therapy. Petitioner's expert, Dr. John M. Harvey, Board- certified in internal medicine and pulmonary diseases, reviewed B. O.'s patient records kept by Drs. Marks and Braunstein. Based on his review, he concluded that Respondent's treatment of B. O. fell below standard because Respondent did not do a digital examination of the patient, even after being made aware of the elevated PSA level; did not document prostatitis in the patient's records; and did not refer the patient to a urologist when the PSA level did not stabilize. In 1994, as now, it is the standard of care in the medical community that any abnormal PSA level should be followed up and should consist of a digital rectal examination and evaluation by another physician or referral to a urologist. Here, in the opinion of Dr. Harvey, a proper follow- up was not done. Albeit a repeated PSA was done, the prostate was not examined. If, as apparent, Respondent chose not to do a digital examination of the patient, he should have referred the patient to another physician who would do it. Dr. Harvey also rejected Respondent's thesis that he believed B. O. was suffering from prostatitis. Treatment of this condition is by antibiotic over a 4 to 6-week course, which was done here. Dr. Harvey has no quarrel with Respondent's treatment of the prostatitis. However, when the condition continued to exist for 9 months, as appears to have been the case here, the physician should have begun to wonder if something else was going on, and Dr. Harvey is convinced that Respondent should have done other diagnostic procedures. Dr. Harvey admits that the SOAP standard for medical records existing in 1994 was met by Respondent. SOAP stands for Subjective (what the patient relates), Objective (the results of examinations and tests), Analysis, and a Plan for treatment. The records show that a diagnosis was made and a referral to a urologist considered but not done, initially. Only after the PSA levels continued to elevate was a referral made, and a digital examination first done. It is Dr. Harvey's opinion that a digital rectal examination should have been done and a referral to a urologist made earlier on. Respondent cannot, in Dr. Harvey's opinion, rely on the patient's refusal to accept a referral. Under the standard in effect in 1994, when B. O. failed to return and refused to accept a referral, Respondent should have documented the refusal in the patient's record, which he failed to do. Dr. Harvey also contends that "watchful waiting," as appears to have been done here by Respondent, does not rule out the use of a digital rectal examination. If the PSA is elevated, and a digital rectal exam is normal, the physician can be more comfortable with "watchful waiting." However, it would not be prudent to fail to do anything more than the PSA. Dr. Harvey admits he did not know that Dr. Marks had done a digital rectal examination of B. O. prior to the December 28, 1994, PSA reading and had conferred with Respondent about it. It is his opinion, however, because of the length of time that had elapsed, he would have repeated the examination even if the initial diagnosis was prostatitis. Also, even though the large drop in the PSA level would tend to indicate prostatitis, Harvey would wonder why the level remained so far above normal. In that regard, prostatitis generally takes between four and nine weeks to cure. Respondent's expert, however, admits that if the condition is chronic, it may take as much as nine months to cure. There is a substantial body of medical authority which argues against the efficacy of the PSA test, contending that the cost of the test is not supported by the diagnostic value. However, when the test has been done and it gives an abnormal reading, it is not appropriate to disregard it. Under the circumstances of the instant situation, a referral to a urologist was appropriate as early as February 15, 1995, when Respondent first suggested it. That suggestion was not followed up, however. Dr. Mitchel Seleznick, a Board-certified internal medicine specialist on the staff of the University of South Florida Medical School, testifying for Respondent, related that the PSA test was developed because the success of the digital rectal examination as a screen for prostate cancer was so poor. Medical opinion was that the PSA, coupled with an ultrasound examination was better. The Public Health Service uttered its call for cancer screening as a preventive measure, but the results, according to Dr. Seleznick, showed a measurable decrease only in women. Dr. Seleznick contends that to date there is no showing at all that the death rate from prostate cancer can be reduced by the PSA screen. Although Medicare now pays for PSA tests, up until approximately one year ago it did not because the test was not considered significant enough to justify the expense. Dr. Seleznick considers the PSA test to be so unreliable, he does not use it. This is somewhat consistent with the testimony of Dr. Harvey that the PSA test is not determinative. If done, however, the results should be considered. The physicians who testified at hearing both contend that the PSA test will not, by itself, establish the presence of cancer. However, the medical evidence presented establishes clearly that the PSA test is a beacon of abnormality and, as such, should not be ignored. Clearly, early identification of cancer of the prostate, through whatever means, and aggressive treatment must have a reductive impact on the mortality rate. Dr. Seleznick opined that Respondent did what was appropriate for B. O. in his treatment of the patient. He recognized the PSA evaluation. He repeated it to verify the initial findings. He referred the patient to a urologist for treatment, and Dr. Seleznick believes that both the referral and the timing of the referral were appropriate. Three months is not, in his opinion, unreasonable. The patient was successfully treated by the urologist and is currently cancer- free. Because a digital rectal examination previously had been done by Dr. Marks, Respondent did not have to repeat it. Dr. Seleznick considers the digital rectal examination to be notoriously unreliable. Further, Dr. Seleznick contends that a reasonable physician would not require a patient to undergo a biopsy, with its attendant risks, without its being absolutely necessary, and, considering the circumstances of this case known to Respondent at the time, he does not consider it to have been necessary. Dr. Braunstein justifies his failure to perform a digital rectal examination on August 8, 1994, on several grounds. Respondent knew another PSA test was to be done and he knew that the digital rectal exam could have an effect on the reading. The patient had come in for an insect bite, not with a complaint related to the prostate. Respondent discussed the patient with Dr. Marks and knew that Dr. Marks would follow up after the PSA test was done. In fact, Dr. Marks did follow up and wrote "stable" on the lab result. When B. O. saw Respondent on February 15, 1995, he was complaining of severe indigestion and did not mention any uro-genital or prostate-related problems. On that visit, Respondent queried B. O. as to why he had not come back as requested. He also discussed the PSA level with the patient and suggested a referral to a urologist. The patient declined a referral at that time, even though Respondent indicated that if the PSA level came back higher, he would make the referral anyway. When the PSA test came back the next day showing a reading of 14.6, Respondent determined a referral to a urologist was appropriate, but before the referral could be made, B. O.'s chart was taken from Respondent's desk, and Respondent then forgot to make the referral. It was only when B. O. came back on May 2, 1995, with the injury to his hand that Respondent remembered the referral. He immediately wrote out the referral to Dr. Acosta for May 24, 1995. On May 22, 1995, Respondent ordered another PSA test which revealed a level of 28.8. This report was immediately forwarded by fax to Dr. Acosta. B. O.'s prostate condition was managed by Dr. Acosta from that point on.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order finding Respondent guilty of practicing medicine in a manner blow professional standards, placing Respondent on probation for two years under such terms and conditions as prescribed by the Board, and imposing an administrative fine of $1,000. DONE AND ENTERED this 20th day of February, 2001, 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2001. COPIES FURNISHED: Ephraim D. Livingston, Esquire John E. Terrel, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32317-4229 William B. Taylor, IV, Esquire Macfarlane, Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601-1531 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
