The Issue The central issue in this case is whether Respondent is guilty of the violation alleged in the administrative complaint dated July 28, 1988; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Richard Bergida, is a licensed optician, license number DO 1387. At all times material to the allegations of the administrative complaint, Respondent was employed at Sea-View Optical, Inc. located in Delray, Florida. On or about November 13, 1986, Wilson K. Wallace, M.D., issued a prescription for bifocal eyeglasses for a patient, Joseph Marks. Shortly thereafter, Mr. Marks went to Sea-View Optical, Inc. and requested that the prescription be filled. After meeting with Respondent, Mr. Marks and his wife selected a desired frame for the new glasses. A few days later, at an agreed upon date and time, Mr. Marks returned to Sea-View in order to pick up the glasses. Since Mr. Marks had selected a new frame, Respondent adjusted the glasses to allow for comfortable wear. At that time, Mr. Marks paid the balance owed on the glasses (the entire amount, $135) by VISA charge card. In January, 1987, Mr. Marks returned to Sea-View to complain about the placement of the bifocal lens. Mr. Marks described the bifocal portion of the lens as being too high. Respondent had computed the placement of the bifocal segment based upon Mr. Marks' old glasses which had been brought to the office on the first visit. Since the position of the bifocal segment was the same as the old pair (when measured with the glasses on the face), Respondent believed the glasses had met Mr. Marks' original request. In February, 1987, during his fourth visit to Sea-View, Mr. Marks became very angry with Respondent and requested that the bifocal glasses be remade. Again, since Respondent believed the height was as ordered, he refused to discuss the matter further. Mr. Marks persisted in the discussion and disrupted Respondent's business. Finally, Respondent requested that he leave the premises. When Mr. Marks refused to leave, the police were summoned and Mr. Marks was escorted outside of the office. Subsequently, Mr. Marks wrote two letters to Respondent seeking resolution of the issue. Whether Respondent received the letters is unknown; Respondent did not respond to the letters. Mr. Marks made another appointment to see Dr. Wallace and was given a second prescription for new bifocal glasses. The second prescription requested that the bifocals be remade due to the segment height being too high. Mr. Marks did not give the second prescription to Respondent. In April, 1987, Mr. Marks filed a small claims action against Respondent which sought reimbursement of the $135 and damages of $1000. The trial of the matter was scheduled for June, 1987, but Mr. Marks was unable to attend. Consequently, the case was dismissed. Mr. Marks vacationed in Vermont from June through September, 1987. En route to Vermont, Mr. Marks stopped in Maryland and had new bifocal glasses made. When he arrived in Vermont, Mr. Marks decided to notify VISA of a challenge to the Sea-View bill. VISA credited Mr. Marks' account for the full $135 amount. Mr. Marks retained possession of the glasses from Sea-View. Mr. Marks contacted the Department regarding his complaint against Respondent and was referred to Dr. Provost for an examination in early 1989. Dr. Provost has been a licensed optometrist in Florida for twenty-six years. According to Dr. Provost, bifocal glasses are designed to meet the individual needs of the patient. Consequently, the intended use by the wearer may effect the placement of the bifocal segment. In Mr. Marks' case, the bifocal segment was too high for his normal use. Accordingly, under normal situations, it would have been appropriate for the glasses to be remade. Dr. Provost has, on occasion, remade glasses after the patient determined the placement was inappropriate. There is no specific standard for the placement of the bifocal segment, however, since individual wearers' needs may vary. The correct procedure for measuring the bifocal segment is performed with the glasses correctly positioned on the patient's face. Mr. Marks did not notify the Department that he had received a credit on his VISA account and that, therefore, he had not paid for the glasses from Sea-View. The glasses presented to Dr. Provost (represented by Mr. Marks to be the glasses manufactured by Respondent) were not marked or identifiable by optician. While Mr. Marks claimed that the glasses, exhibit 5, had been unsuitable, the glasses show some sign of wear, including at least one scratch.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Opticianry enter a final order finding the Respondent not guilty of the alleged violation. DONE and ENTERED this 26th day of July, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 26th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4349 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. With regard to paragraph 3, it is accepted that the "old glasses" measured by Dr. Provost are as described in paragraph 3, there is no certainty that the glasses, exhibit 4, were the same ones measured by Respondent or Dr. Provost. Paragraph 4 is accepted. Paragraph 5 is rejected as contrary to the weight of credible evidence. The normal acceptable tolerance for a patient may be dictated by the wearer's intended use. In this case, Dr. Provost indicated that it is not uncommon to have to work with the patient until the use and segment placement correspond. Unfortunately, the parties to this transaction were unable to communicate effectively and the Respondent did not change or remake the glasses. Mr. Marks, however, did not give the second prescription to Respondent and sought a refund from VISA which he received. Paragraph 6 is rejected as contrary to the weight of credible evidence or unsupported by the record. Paragraph 7 is rejected as argument or comment. Paragraph 8 is accepted, however, see paragraph 2, above. Paragraph 9 is accepted only to the extent that it references findings reached by Dr. Provost it is not concluded the "old glasses" were the same as measured by Respondent. See paragraph 2 above. Paragraph 10 is accepted to the extent that Dr. Wallace wrote the prescription requesting the glasses be remade. Had Mr. Marks delivered that prescription, not disrupted Respondent's place of business, not sued Respondent, not sought a refund or otherwise acted reasonably Respondent would have probably remade the glasses. As it was, these men clearly could not communicate and certainly did not act as one might hope adults would. It is unfortunate that their personality differences interfered with their conduct. It is not reasonable to presume Respondent would have wanted to call the police to escort Mr. Marks off the property. Good business policies would not dictate that such conduct would enhance client relations. Paragraph 11 is rejected as argument, conclusion of law or comment. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 3 are accepted. With regard to paragraph 4, it is accepted that Mr. Marks notified VISA that he disputed the bill from Sea-View and received a full credit for the amount. Consequently, Respondent did not receive payment for the glasses dispensed. The dispute did not arise until after Mr. Marks had had the glasses for several weeks. With regard to paragraph 5, it is accepted only in part. Whether Mr. Marks used the glasses on a full-time basis is unknown. It is accepted that he had possession of the glasses for several months. He did, however, complain about the segment location, did seek a review from Dr. Wallace, and did talk to Respondent about remaking the glasses. Mr. Marks claimed he used his old glasses until a new pair were made in Baltimore. Paragraph 6 is accepted. Paragraph 7 is accepted to the extent that Mr. Marks did not advise the Department that VISA had credited his account, the Department was advised that Mr. Marks retained the glasses. Paragraph 8 is accepted. Paragraph 9 is accepted if clarified to include the fact that Mr. Marks' vacation in Vermont during the warmest months was as suggested by his physician in response to his heart condition. Paragraph 10 is rejected as irrelevant, immaterial, or unnecessary to the resolution of this matter. Paragraph 11 is rejected as irrelevant, immaterial, or unnecessary to the resolution of this matter. Mr. Marks is not a party to this proceeding. Paragraph 12 is rejected as argument, irrelevant, or unnecessary. Paragraph 13 is accepted Paragraph 14 is accepted. Paragraph 15 is rejected as argument or conclusion of law. COPIES FURNISHED: Cynthia Gelmine Staff Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Harvey H. Harling Town Executive Center 6100 Glades Road Suite 201 Boca Raton, Florida 33434 LouElla Cook Executive Director Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750
The Issue The issues in this case concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, Board of Opticianry (Petitioner) against Samuel Rosenberg (Respondent).The allegations in that administrative complaint are directed to claimed improprieties on the part of the Respondent in his actions as a sponsoring optician for the benefit of David Somerville, an apprentice optician, both men licensed in the state of Florida. Respondent is said to have violated various provisions of Chapters 455 and 484, Florida Statutes, and Chapter 21P, Florida Administrative Code.
Findings Of Fact Part A The following facts are found based upon the stipulation entered into by the parties: Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of opticianry, pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 484, Florida Statutes. Respondent is a licensed optician in the state of Florida, having been issued license number 0001618. Respondent's last known address is 542 White Street, Daytona Beach, Florida. David Somerville is not a licensed optician in the state of Florida. He is currently registered as an apprentice. A successful completion of this apprenticeship would enable him to sit for the Florida Examination to become licensed as an optician. An individual who is registered as an apprentice can perform no independent opticianry functions. An apprentice optician's activities must be directly supervised by a licensed optician. The Respondent is David Somerville's supervising apprentice sponsor. In February 1985, for a period of two or three weeks, Respondent had been an employee at Brandywine Optical, the business premises of David Somerville. Respondent then agreed to act as Somerville's sponsoring optician, supervising Somerville for forty hours per week. Part B Factual findings based upon the testimony adduced at hearing and in consideration of exhibits admitted at hearing: As reflected in Petitioner's Exhibit 7 admitted into evidence, on March 14, 1985, Samuel Rosenberg made application as sponsor of an apprenticeship program for the benefit of David Somerville. In that application it was indicated that Rosenberg would supervise the apprenticeship of Somerville for a period of forty hours a week. Rosenberg believes that Somerville is capable of performing opticianry work. He states that based upon Somerville's past experience and performance, he, Rosenberg, can afford to step out for a cup of coffee, and while he is out of Brandywine Optical, Somerville can do as fine a job of adjusting a pair of glasses as Rosenberg could. He also feels that it would be acceptable to leave Somerville alone while Rosenberg goes to the post office to mail things. Rosenberg does not feel responsible to monitor Somerville's activities at the Brandywine Optical business other than within the forty hours for which he is involved with Somerville. In supervising Somerville, Rosenberg had an arrangement early on in which twelve hours' supervision was given at a flea market and an additional twenty-eight hours at the Brandywine Optical store. This changed to eight hours on Saturday at the flea market and thirty-two hours a week at Brandywine Optical. The thirty-two hours is from Monday through Thursday. On Friday, Rosenberg understands that an optometrist is in attendance at the Brandywine Optical, and Somerville is only answering the phone and showing frames to customers. Nonetheless, Rosenberg admits that he has never been at the Brandywine Optical on Friday to confirm this arrangement in which Somerville is purported to do no opticianry work. Rosenberg assumes that Somerville in good conscience will not do anything irregular related to activities by an apprentice optician while Rosenberg is not attendance on Fridays. Otherwise, Rosenberg assumes that the optometrist at the business on Friday is responsible for Somervilles activities. Robert Schwalm, a licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985;. and April 17, 1985, while seated in the parking lot adjacent to the Brandywine Optical store and using 50 power binoculars, observed Somerville without supervision of an optician, optometrist or opthalmologist, practice opticianry, to wit, adjusting, delivering, fitting and collecting money for glasses. Adjustments would include working on frames etc. Rosenberg was not in attendance while these activities were being conducted by Somerville. On these occasions, when Rosenberg would arrive at the store, the witness Schwalm would depart. Similarly, Harry Rowley, licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985; and April 17, 1985, observed Somerville's participating in the practice of opticianry. Except for one of these instances in which Rosenberg came into the store, Somerville was practicing opticianry outside the presence of Rosenberg. Somerville's practice of opticianry included dispensing glasses, adjusting glasses and collecting fees. On July 22, 1985, an investigator with the Department of Professional Regulation, Philip T. Hundermann, went to the Brandywine Optical store and parked outside the store. He arrived between 9:30 a.m. and 10:00 a.m. At 10:00 a.m. a person was observed leaving the store. At 10:05 a.m. Rosenberg was seen parking his car and then was observed entering the premises. The investigator went into the store at 10:10 a.m. and observed Somerville talking to a male customer while Rosenberg was standing at the counter. The investigator then requested that Rosenberg participate in an interview. Rosenberg and the investigator left the business premises and in another location held a discussion about concerns related to a complaint against Rosenberg's license. Rosenberg told the investigator that he supervised Somerville for a period of forty hours a week as the sponsoring optician. Rosenberg said that typically he would arrive at the Brandywine Optical store at 10:00 a.m. and leave around 4:00 or 4:30 p.m. This would mean that Somerville was unsupervised from 9:00 a.m. to 10:00 a.m. and from 4:00 or 4:30 p.m. to 5:00 p.m. On August 27, 1985, Douglas Vanderbllt, an investigator with the Department of Professional Regulation, went to the Brandywine Optical store. When he entered the store, Somerville and another customer were the only persons in attendance. The customer was trying on frames and making a selection of frames, with the assistance of Somerville. Vanderbilt picked out some frames that he wanted to buy. Somerville took the glasses that Vanderbilt had and made measurements from those glasses. This was in furtherance of the preparation of a new pair of spectacles at a cost of $1lO. Sixty dollars was paid down. Some of the measurements Somerville made pertaining to Vanderbilt involved bifocals. No prescription had been presented by Vanderbilt and Somerville used the old glasses which Vanderbilt had as a basis for measurement. Vanderbilt was presented with a business card which may be found as Petitioner's Exhibit 1 admitted into evidence. The business card reflects Brandywine Optical, prescriptions filled, eye glasses and contact lenses. It gives the business address and indicates that David Somerville is the dispensing optician. This card is similar to a card sitting on the counter where Vanderbilt was seated. Respondent was aware of the information set forth on the card received as an exhibit. Somerville, upon the questioning of Vanderbilt, confirmed that the name Somerville reflected on the card and the Respondent Somerville were one and the same person. On September 9, 1985, Vanderbilt returned to the business premises at Brandywine Optical. At that time, only Somerville was present. Somerville broke the black stainlesse steel frame across the bridge of the new glasses. Consequently, Vanderbilt picked out a brown frame, and Somerville fitted the brown pair of glasses on Vanderbilt.
Findings Of Fact David R. Ness, Petitioner, attended Southern College of Optometry in Memphis, Tennessee, and graduated in May 1990. Part of his training included a three-month externship with James C. Lanier, O.D., an optometrist practicing in Jacksonville, Florida. Dr. Lanier found him a very competent student, thorough in his fact finding and case histories; and satisfactory, if not above average, in his examination of the patients. Dr. Lanier did not participate in the grading of the examination in issue and has no personal knowledge of Petitioner's performance on the examination. Petitioner sat for the September 1990 Optometry licensure examination. He passed the certification portion of the examination and the laws and rules section; he failed the pharm./ocular portion and the clinical portion. After several challenges to the examination, the Board adjusted some scores, but Petitioner's scores in the pharm./ocular section and the clinical sections were still below passing. Written Examination The pharmacology/ocular written portion of the examination consists of a series of case histories, with five questions directed to each. Petitioner explained that he challenged his score on the following specific questions: History #1, question #4; History #5; question #23; History #7, questions #32-35; and History #10, question #48. Case history #1 describes a 19-year old female soft contact lens wearer with symptoms correctly identified by Petitioner as Giant Papillary Conjunctivitis. The patient relies on her contact lenses because she is an actress. The severity of her condition is 3+ on a scale of 1-4, with four being the most severe. Question #4 requires selection from six choices of the initial management course of choice. Petitioner chose "c", Pred Forte suspension, every two hours. Pred Forte is the strongest commercially available steroid and its application every two hours is reserved for very severe cases. While the condition described is moderate to severe, the better answer is "f", "switch to preservative free system, enzyme cleaning 1 time a week". The patient's cleaning solution, described in the case history, is an old solution with a preservative which is known to cause conjunctivitis. While the safest course would be to discontinue contact lens wear, this is a radical option for a patient who must wear the lenses for her work. The preferred course then is to change the solution to see if the condition improves before moving to a less conservative treatment such as Pred Forte. Case history #5 describes symptoms and includes a color photograph of the eye in issue. Petitioner correctly identified the differential diagnosis as "Essential Iris Atrophy" and "Reiger's Anomaly". The next question, #23, states that the fellow eye shows similar findings in a slit lamp examination, and asks which of the differential diagnoses is the final diagnosis. Petitioner selected "Essential Iris Atrophy". The correct answer is "Reiger's anomaly". Essential Iris Atrophy is almost always unilateral and Reiger's is bilateral. The question required the examinee to know this distinction. Case history #7, describes a 37-year old patient with alleged recent vision field loss which occurred after thoracic surgery. The history describes an examination in which the patient remarks that he "isn't going to sue the physician" and where, with coaxing, his vision is much better than he admits. The patient also presented summary results of carotid artery testing and CT studies, which were normal. In his answers to questions 32-35, Petitioner chose diagnoses and treatment based on his conviction that he should try to help anyone who would come to him. He missed the fact that the patient described in the case history is a malingerer who likely is trying to sue his surgeon, and who requires no treatment. Case history #10 describes a 68-year old patient who is being examined for fitting of an extended wear contact lens. The best corrected vision is 20/50 OD, with or without a contact lens. The examination question includes two photographs, one of the fundus examination, the other of a fluorescein angiogram. An angiogram is obtained by injecting dye in the forearm and taking pictures with a special filter as the dye circulates through the blood vessels within the eye. This process is able to reveal abnormalities in the eye. Petitioner missed the question relating to the final diagnosis, which should have been "age-related macular degeneration with secondary choroidal neovascular membrane". Final diagnosis relied, in part, on the fluorescein angiogram. While Petitioner is not arguing that his answer is correct, he contends that the question itself is invalid, because it depends on a process which optometrists are not licensed to perform and it was too technical for recent graduates. People coming out of school have been exposed to live patients and have seen fluorescein angiograms performed and have seen their photographs. Moreover, in Florida, the number of elderly patients makes it necessary that optometrists be proficient in diagnosing age-related macular degeneration. The Practical/Clinical Examination Section 1 of the clinical portion of the practical examination involves the two examiners' review of the examinee's performance of an actual eye examination of a live patient. The two examiners are briefed extensively prior to the examination as to what to look for, but they do not confer during the examination when scoring various functions. For this reason, there may be disagreement between the two examiners. The scores are averaged. On section 1, item #6, with regard to the patient's case history, "follow-up information", the point spread is 0-7, with points being subtracted for failure to follow up on certain information. One examiner gave Petitioner the maximum number of points for the entire case history section. The other examiner gave Petitioner a "no" (0 points) under "personal ocular history", and commented on the examination score sheet that the examinee did not ask ocular history. The same examiner took off 2 points on item #6, "follow-up information" and commented, "did not ask ocular history". At some point during Petitioner's initial challenge, he was given credit for item #3, because it was determined that he did obtain an ocular history. The additional points were not restored to item #6, but should have been; as the failure to obtain that history is the basis for the reduced score. The examiner was not present at hearing to explain any other basis. Section 2 of the clinical portion of the practical examination requires the examinee to perform a series of functions under the scrutiny of two examiners (not the same two as in section 1). Again, the scores are awarded without consultation and there are discrepancies. In each area the examiner marks "yes" or "no" as to whether the procedure is properly performed. A "no" must be supported with the examiner's comment. Two yes marks entitle the examinee to 2 points; a yes/no is worth one point; and two no's are scored zero. For each function, the examinee must demonstrate twice. That is, he says "ready", and the first examinee views the result, then he prepares again and signals, "ready", for the second examiner. For section 2, the candidate is performing techniques or functions on his own patient, a patient whom he brings to the examination and with whom he is familiar. Petitioner is challenging the grading method for Section 2. In 6 out of 16 techniques or functions, the two examinees disagreed; that is, one gave a "yes", and the other, a "no". Petitioner contends that he should get full credit anytime he got one "yes", since that indicates that two people, the examinee and one examiner, agree. There are several reasons why two examiners may disagree on whether the examinee performed a function or technique properly. In some instances one examiner may give the individual the benefit of the doubt; in other cases the patient might move or blink or the examinee might lose his focus. The fact that two examiners independently assess the results gives the examinee two chances to demonstrate his skill. The third section of the clinical examination requires an examination of a live patient where the refractive error of the patient's vision is determined, and a prescription is made. Before being presented to the examinee, the patient is examined independently by three licensed optometrists serving as "monitors". Their examinations give the refraction results against which the examinee's results are compared. Their examinations also determine whether the patient is suitable; that is, the eye must be refracted correctable to 20/20 and the other eye correctable to 20/50. A fourth monitor reviews the results before the patient is presented to the examinee. In this case the patient was examined by the monitors and was found acceptable. Petitioner had problems with the patient; the best he could read was the 20/25 line. Petitioner felt that the patient should have been disqualified and commented in writing on that at the end of his examination, as was appropriate. The comments were reviewed by Dr. Attaway, who considered that the patient had met the criteria when examined by the monitors. Petitioner's refractions varied significantly from the monitors' refractions, which also varied somewhat from each other. Petitioner received a score of 3, out of possible 20, on this portion of the examination. Dr. Attaway did not, himself, examine the patient and the monitors who performed the examinations were not present to testify. The only evidence to rebut Petitioner's findings was the written report of the monitors. Pass Rate for the Examination Out of 130 candidates, approximately 34 percent passed all parts of the September optometry examination. In 1986, 51 percent passed; in 1987, 33.5 percent passed; in 1988, 59.6 percent passed; and in 1989, 52 percent passed. These figures do not, alone, establish that the test is too technical or unfair, nor does the fact that very good students failed. When the examinations are evaluated, when the examinee's performance is rated, there is no established pass rate; the monitors have no idea how close the individual examinee is to passing, either originally or when a challenge is being addressed. Petitioner was a very articulate and candid witness. His two experts were clearly knowledgeable and were sincerely concerned that he should be licensed. None had the experience of Respondent's witnesses, also well-qualified licensed optometrists, in working with the examination. With the exception of the inconsistent score on Section 1, item #6, Petitioner failed to prove that he is entitled to a higher score on any portion of the examination, or that the examination itself was invalid or unfair.
Recommendation Based on the foregoing, it is hereby, recommended that Petitioner's final score on Section 1 of the clinical examination be adjusted to reflect full credit for Item #6; that he be permitted to retake Section 3 of the clinical examination; and that his remaining challenges to the examination be denied. RECOMMENDED this 29th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0700 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings 1.-2. Adopted in paragraph 2. 3. Adopted in substance in paragraph 20. 4.-6. Rejected as irrelevant. Adopted in summary in paragraph 2. Rejected as contrary to the evidence. Finding of Fact #15 reflects the grades after adjustment. Rejected as unnecessary. Adopted in paragraph 1. Rejected as unnecessary. Rejected as irrelevant. This fact does not make the examination invalid so long as it fairly evaluates the qualification of the applicant. 13.-14. Rejected as statements of statutory language rather than findings of fact. Respondent's Proposed Findings The Hearing Officer is unable to find where in the record the exact final score of Petitioner is reflected. Adopted in paragraph 1. Rejected as restatement of testimony rather than findings of fact. 4.-5. Rejected as unnecessary. 6.-15. Rejected as restatement of testimony; summary statements, or argument, rather than findings of fact. COPIES FURNISHED: David R. Ness 611 Poinsettia Avenue Titusville, FL 32780 Vytas J. Urba, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Patricia Guilford, Exec. Director Dept. of Professional Regulation Board of Optometry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue Whether Petitioner is entitled to receive a passing score on the clinical portion of the August 1999 optometry licensure examination.
Findings Of Fact Petitioner, Sandra Farhady (Farhady), took the Florida optometry licensure examination in August 1999. The examination is divided into four portions: laws and rules, pharmacology, clinical, and certification. Prior to the administration of the test, each examiner is given grading standards, which are the requirements that must be met by a candidate to successfully demonstrate a particular procedure. All examiners receive standardization training, during which the examiners are trained to apply grading standards consistently. Examiners are instructed to wear their best corrective lenses. Examiners are instructed to grade each applicant independently of each other and are not permitted to confer with each other concerning a candidate's score. If both examiners agree, the candidate receives no credit or full credit, depending on whether they considered the candidate to have properly performed the procedure requested. If they disagree, the candidate is given partial credit on that procedure. The clinical portion of the examination requires the applicant to perform a number of tasks while two examiners evaluate the procedures. The examiners observe the procedure through a viewing system known as a teaching tube which is attached to the optometrist's equipment used by the candidate. Only one teaching tube is used so each examiner views the procedure separately. The candidate may ask the first examiner to grade his view and hold the view for the second examiner without having to refocus, or the candidate may perform the procedure for each examiner. Farhady passed the laws and rules, pharmacology, and certification portions of the examination, but failed the clinical portion of the examination with a score of 69.1. The passing score for the clinical examination is 75.0. Farhady challenged the score that she received on question 11a of the clinical examination. The question dealt with a procedure called retinoscopy, and the Department conceded at final hearing that Farhady should have been given credit for her answer. The additional points associated with question 11a raised Farhady's final score to 70.125. Farhady challenged the score she received for questions 33a, 33b, 33c, and 34a of the clinical examination. The questions relate to a procedure known as applanation tonometry, which is used to check a patient for glaucoma by measuring the intraocular pressure. This portion of the examination was worth ten points. Applanation tonometry is performed using a tonometer. The tonometers used by all the candidates for the August 1999 examination were part of a Zeiss slit lamp, which is also called a Zeiss microscope. It is an apparatus commonly used by optometrists within the scope of their practice. Each of the tonometers had a large fixation device mounted on the left side of the microscope. On the day of the clinical portion of the examination, the tonometer used by Farhady was in working order. No other candidate made a complaint concerning the working condition of the tonometer. The tonometer used by Farhady was not altered before, during, or after Farhady's session. There are time limits for section two of the clinical portion of the examination, which includes the applanation tonometry procedure. The Candidate Information Booklet for the Optometry Examination, which is provided to all candidates prior to the examination, provides: To protect the patient and to evaluate clinical competency, we will put time limits on the amount of time you will have to attempt each of the Section Two procedures. Timing will start after you receive the initial instructions for each procedure from the examiners and will continue until completion of the procedure or until time expires. . . . The time limit for the applanation tonometry procedure is six minutes. Farahady was unable to complete the applanation tonometry within the time allowed during the examination. She could not make the probe of the tonometer contact the patient's eye. During the procedure she advised the examiners, "Something is up with the tonometer." Farhady filled in a Candidate Comment Form and stated the following: Unable to acquire a view on tonometry. Mires were clear but fluorescent pattern not correct. It appeared like ground glass. I reapplied NAFI, but same view was seen so no grading was possible & I ran out of time. One of the examiner's noted the following on the Examiner's Comment Form: Pt. Ran out of time on tonometry--was apparently unable to see mires. Mires did not 'Flouress' well but was easily visible. Light source was close to 90 [degrees] away which may have contributed. Tonometry was repeated by this examiner without instilling new NaFl successfully by brightening the light source & bringing it to 60 [degrees]. Farhady contends that the position of the fixation device prevented her from being able complete the tonometry procedure. The fixation device can be easily moved to one side, pushed back, or folded up. If the fixation device was hindering Farhady in bringing the tonometer probe in contact with the patient's eye, Farhady could have quickly and easily moved the device out of her way. The position of the fixation device is not a defect in the tonometer equipment, which would have prevented a candidate from successfully performing applanation tonometry. Item 33a was the evaluation of whether the illumination source was a proper angle of 40 to 60 degrees. Item 33b evaluated whether the mires were the proper width. Item 33c evaluated whether the mires alignment was correct. Item 34 was the evaluation of whether the candidate obtained an accurate reading of the intraocular pressure. Farhady did not have the proper angle, did not demonstrate whether the mires were the proper width, did not align the mires correctly, and did not obtain a reading of intraocular pressure. Farhady challenged the score she received for questions 25a, 26a, 27a, 28a, 30a, and 32a, in section two of the clinical examination. These questions relate to a procedure referred to as biomicroscopy of the fundus. The scores given by the examiners for these questions were not identical. Examiner 199 did not give Farhady any points for questions 25a, 26a, 27a, 28a, and 32a. Examiner 199 noted that Farhady did not establish the proper focus with respect to these procedures. While examiner 231 did give Farhady points for procedure 25a, examiner 231 noted that Farhady had achieved only a borderline focus. Both examiners noted poor focus with respect to question 32a and did not give Farhady credit for that question. Question 25a required proper focus of nerve head. Examiner 199 noted the following on the grade sheet with respect to question 25a: Could not get it in view in left ocular. Candidate even verbalized this. For questions 26a, 27a, and 28a, examiner 199 noted that Farhady had no focus. For question 32a, examiner 199 noted, "could not/would not maintain focus." Farhady challenges the scores she received for questions 2a and 4a on section one of the clinical examination. These questions relate to visual field testing. The candidate is shown a visual field and is asked questions pertaining to the visual field. When Farhady was shown the visual field, she immediately said out loud that it was a glaucomatous loss before the examiner could read the instructions to her. The examiner said, "no" and began to read the instructions. Farhady thought that the examiner meant that it was not a glaucomatous loss. The examiner manual advises the examiners to avoid any comments which the candidate could interpret as favorable or unfavorable. For question 2a, Farhady was asked to name the visual field defect. She stated that it was arcuate scotoma. The correct answer was superior arcuate scotoma. Credit is not given for partial answers. It is important that the candidate identify whether it is a superior or an inferior arcuate scotoma in order to establish the location of the lesion so that the correct diagnosis can be made. Whether the examiner said "no" is irrelevant to the answer which Farhady gave to question 2a because she did identify that it was an arcuate scotoma. For question 4a, Farhady was asked which disease would be most consistent with the visual field defect. Farhady answered supracellar craniopharyngioma, which is incorrect. In layman's terms, a supracellar craniopharyngioma is a tumor of the pituitary gland. A visual field of a tumor of the pituitary gland is a bitemporal configuration not an arcuate configuration, meaning that Farhady's answer did not correlate in any way with the visual field defect. It was improper for the examiner to have said "no" after Farhady responded that it was a glaucomatous loss. It could have been interpreted by a candidate, as it was by Farhady, that her response was incorrect. The examiner should have told Farhady to wait until the instructions were read. Question 4a was worth 1.5 points, giving Farhady a total percent score of 71.6, which is not a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandra D. Farhady did not pass the clinical portion of the August 1999 optometry licensure examination and dismissing her petition. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Sandra D. Farhady 6404 Wiley Street Hollywood, Florida 33023
Findings Of Fact At all times material to this proceeding, Respondent, Antonio R. Gasset, M.D. (Dr. Gasset), is and has been a licensed physician in the State of Florida. His license number is ME 0015074. Dr. Gasset specializes in opthamology. Petitioner, Agency for Health Care Administration (AHCA), is the State agency charged with regulating the practice of medicine pursuant to Section 20.165, and Chapters 455 and 458, Florida Statutes. In April 1986, Dr. Nelvis Velazquez, worked with Dr. Gasset at the Miami Eye Institute, Inc., which was owned and operated by Dr. Gasset and his immediate family. On April 14, 1986, Dr. Velazquez saw Patient #1 who was complaining of not seeing well. She performed an eye exam which consisted of checking his vision, checking his eye pressure, and dilating his pupils. She diagnosed his problem as cataracts. On April 23, 1986, she performed cataract surgery on Patient #1's right eye. She saw him again on April 24, 25, and May 2 and removed the stitches on May 16. On June 6, 1986, Dr. Velazquez did a slit lamp examination and a fundus exam on Patient #1. On July 18, Patient #1 saw Dr. Velazquez, complaining that his eye lids were coming down so far that they interfered with his vision. She examined his eyes and determined how much the lids were interfering with his vision. On September 26, she did the pre-op for lid surgery. On October 8, she performed lid surgery and saw Patient #1 for post-op on October 9. Dr. Velazquez removed the stitches on October 13. On October 27 she again saw Patient #1 and noted the wrinkling of a membrane which is left behind after cataract surgery. On October 31, she performed a yag laser capsulotomy to remove the membrane. Patient #1 returned to the Miami Eye Institute on November 7 and was seen by Dr. Gasset. A slit lamp eye examination was performed. He noted a cataract in the left eye, which was the same diagnosis made by Dr. Velazquez on Patient #1's initial visit to the Miami Eye Institute. On December 19, Dr. Gasset saw Patient #1 for a routine checkup after laser treatment. Patient #1 was complaining of a floater. A slit lamp examination was performed. Patient #1 did not appear at the Miami Eye Institute again until July 14, 1987, at which time he was seen by Dr. Velazquez. His vision had decreased. Dr. Velazquez performed a vision test, a slit lamp examination, and dilated his eyes. On July 21, Patient #1 had an infection in his eyelid. On August 4, he was seen again but his vision was 20/40 with no explanation for the decrease in the vision. Dr. Velazquez told Patient #1 to return, which he did on August 11. He still had an eyelid infection, and Dr. Velazquez drained the lid. On August 25, 1987, Patient #1 came in for a fluorescein angiogram. As a result of the test, Dr. Velazquez diagnosed a macular edema. On September 1, she performed a slit lamp examination and a vision test, injected a cortiocosteroid, and placed him on Pred Forte, cortiocosteriod drops, for the macular edema. On September 15, Dr. Velazquez gave Patient #1 another injection and told him to continue with the Pred Forte drops. He was again seen on September 29 at which time his vision had improved a little. Dr. Velazquez again told him to continue with the Pred Forte. Based on financial and operational disagreements, Dr. Velazquez terminated her working relationship with Dr. Gasset on October 9, 1987. On October 23, 1987, Patient #1 returned to the Miami Eye Institute and was seen by Dr. Gasset. The patient complained of decreased vision. Dr. Gasset performed a slit lamp examination. Patient #1's next visit to the Miami Eye Institute was on May 13, 1988, when he was seen by Dr. Gasset. The patient complained of poor night vision. He was given a slit lamp examination and a pressure check and was told to return in six months. On October 10, 1989, Patient #1 came to Dr. Gasset for a routine checkup. A slit lamp examination was performed as well as a pressure check. The patient's visual acuity was 20/25 OD and 20/60, left eye. Patient #1's next visit to Dr. Gasset was on August 28, 1990. Patient #1 came to the office complaining that he had lost his reading glasses. Having judged the credibility of Patient #1, I find that Patient #1 did not tell Dr. Gasset that he was seeing "a black ball" in his eye or in any way indicate that he was experiencing floaters. Based on Patient #1's complaint, Dr. Gasset performed a pressure check, noted a cataract on the left eye, and wrote "status quo" on the patient's chart. Patient #1's vision was 20/20 minus in his right eye and 20/60 minus in his left eye. Dr. Gasset did not dilate Patient #1's eyes during his examination. On the same date, Dr. Gasset prescribed glasses for Patient #1, and Patient #1 obtained eyeglasses from the optical department at the Miami Eye Institute. Dr. Gasset did not dilate Patient #1's eyes from October 23, 1987, through August 28, 1990. On September 17, 1990, Patient #1 went to see Dr. Velazquez, complaining that he had had decreased visual acuity in his right eye for approximately 20 days. An eye examination was performed and Patient #1's visual acuity was 20/100 in the right eye and 20/70 in his left eye. A pressure check was also performed. Dr. Velazquez dilated Patient #1's eyes and discovered a retinal detachment. A retinal detachment refers to a condition wherein a tear or hole develops in the retina and the fluid dissects, causing the retina to bulge forward, affecting the vision. Patient #1 had a horseshoe tear in the superior nasal quadrant of his eye. The detachment was bullous, meaning that it was billowing out like a sail. Because of the location and nature of the tear, the retinal detachment most probably occurred very rapidly. Additionally, it is more likely than not, the tear was not present when Dr. Gasset saw Patient #1 on August 28, 1990. Dr. Velazquez sent Patient #1 to the Bascom Palmer Eye Institute (Bascom Palmer) that same day. Patient #1 had retinal detachment surgery at Bascom Palmer on the following day. The next time Dr. Velazquez saw Patient #1 was on December 10, 1990. His best corrected vision was 20/200. He was still being seen by the doctor at Bascom Palmer. Patient #1's next visit to Dr. Velazquez was on January 28, 1991. Dr. Velazquez did a slit lamp exam and a vision check and dilated his eyes to check his retina. On March 18, 1991, Patient #1 was again seen by Dr. Velazquez. He was complaining of distorted vision. The best that she could get him to see was 20/100. Patient #1 was rather nearsighted in the right eye and farsighted in the other eye. The disparity between the visual acuity in his eyes bothered him. Based on the testimony of Drs. Segall and Velazquez, the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in the instant case would be dilation of Patient #1's eyes at least once each year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count Two of the Administrative Complaint, dismissing the portion of Count One of the Administrative Complaint which alleged that Respondent failed to reach an appropriate diagnosis, finding that Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to dilate Patient #1's pupils on a timely basis, issuing a reprimand, and imposing an administrative fine of $1,000. DONE AND ENTERED this 2nd day of November, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 2nd day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3887 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraph 4: Based on the credibility of the witnesses, it is rejected. Paragraphs 5-7: Rejected as unnecessary. Paragraph 8: Accepted in substance. Paragraphs 9-12: Rejected as unnecessary. Paragraphs 13-17: Accepted in substance. Paragraph 18: Rejected as subordinate to the facts actually found. Paragraphs 19-21: Accepted in substance. Paragraphs 22-23: Rejected as subordinate to the facts actually found. Paragraph 24: Accepted in substance. Paragraphs 25: Rejected as constituting recitation of testimony. Paragraph 26: Accepted to the extent that it states the standard of care but rejected to the extent that it implies that Patient #1 complained of floaters to Dr. Gasset. Paragraph 27: Accepted in substance but rejected to the extent that it implies that Patient #1 told Dr. Gasset that he had decreased vision and floaters. Paragraphs 28-29: Rejected as unnecessary. Paragraph 30: Rejected as recitation of testimony. Paragraph 31: Having judged the credibility of Patient #1, I reject the portion which states that Patient #1 told Dr. Gasset that he was having difficulty in reading because he could see a little black ball while reading. The remainder is accepted in substance. Paragraph 32-34: Rejected as recitation of testimony. Paragraphs 35-40: Rejected as unnecessary. Paragraph 41: Rejected as recitation of testimony. Paragraph 42: Rejected as subordinate to the facts actually found. Paragraph 43: Rejected as constituting recitation of testimony. Respondent's Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: Rejected as unnecessary. Paragraph 4: Accepted in substance. Paragraph 5: Rejected as unnecessary and constituting argument. Paragraph 6: Rejected as unnecessary. Paragraph 7: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: Rejected as recitation of testimony. Paragraph 10: Accepted in substance. Paragraph 11: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraph 12: Rejected as constituting argument. Paragraph 13: The first sentence is rejected as constituting a conclusion of law. Paragraph 14: Rejected as constituting recitation of testimony. Paragraph 15: Rejected as constituting recitation of testimony and argument. Paragraphs 16-17: Rejected as constituting argument. Paragraph 18: Accepted in substance. Paragraph 19: The first sentence is rejected as constituting recitation of testimony. The last sentence is accepted in substance. Paragraphs 20: Rejected as recitation of testimony and constituting argument. Paragraph 22: Rejected as recitation of testimony. Paragraph 22-23: Rejected as unnecessary. Paragraphs 24-25: Rejected as recitation of testimony. COPIES FURNISHED: Carlos J. Ramos, Esquire Kenneth J. Metzger, Esquire Agency For Health Care Administration Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 David P. Dittmar, Esquire Roland Continental Plaza, Suite 400 3250 Mary Street Coconut Grove, Florida 33133 Dr. Marm Harris Executive Director Board of Medicine Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Harold D. Lewis, Esquire The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue to be resolved in this proceeding concerns whether Rule 61F8- 3.015, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes, and whether the Petitioners have standing to challenge that rule.
Findings Of Fact Petitioner POF is a non-profit Florida corporation organized under the laws of Florida for the purpose of representing its members who are licensed opticians. Petitioner Riddlebaugh is a board-certified, licensed optician pursuant to the laws of Florida and has been so licensed since 1987. After first becoming licensed in Florida, Petitioner Riddlebaugh worked in his family's optical business in Ormond Beach, Florida. He later worked for Burdine's Optical and Omni Optical. From April 1990 to February 1994, he owned and operated an independent opticianry business in Florida and was the sole employee of that business during the entire time of its operation. The Respondent is a state agency authorized to promulgate rules and regulations concerning the practice of optometry and licensure of optometrists, by authority of Chapter 463, Florida Statutes. The Intervenor is a non-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, and who are authorized to practice optometry in Florida. Petitioner POF's organizational purposes are to promote, protect, and improve the professional status of persons engaged in the practice of opticianry and to encourage, establish, and maintain standards of competence, knowledge, and performance through the provision of educational programs, training, and uniform licensing of optical dispensers. Petitioner POF has seven classes of membership entitled Professional Member Class I, Professional Member Class II, Professional Non-Licensed Member, Associate Member, Affiliate Member, Student Member, and Honorary Member. Only Professional Member Class I has Florida licensed opticians as members. Any member of Petitioner POF may terminate membership upon 60 days written notice to the executive director. Members of POF who fail to pay dues and other obligations within 60 days are removed from the membership rolls. It is impossible to determine the number of members of Petitioner POF, since the membership roster can change daily, based upon resignations and terminations. Petitioner POF did not introduce its most current or any membership roll designating the members by their appropriate membership class. The 1993-94 directory and desk guide of Petitioner POF lists the members of Petitioner POF followed by a number designation in parentheses. The number designation (1), which does not indicate only Professional Member Class I membership, as defined by the Bylaws of the association, represents members who are not licensed in Florida as opticians, as well as some members who are licensed in Florida as opticians. It is impossible to determine how many members besides Riddlebaugh and Richard W. Williams are licensed in Florida as opticians, although a substantial number of the total membership are Florida licensed opticians. No preponderant evidence was offered to show that the membership of Petitioner POF was substantially affected by the challenged rule. During the six years the rule has been in effect, Petitioner POF did not gather any information to show how or if the challenged rule affected its membership even though it had challenged the rule when first promulgated, later withdrawing the challenge. The number of licensed Florida opticians has increased during the entire six-year period the challenged rule has been in effect. Petitioner Riddlebaugh is a Florida licensed optician who was licensed in 1987. He closed his optical business "Spectacles" in February 1994. He closed that business because of generally declining economic conditions in Volusia County, Florida, where he practiced, due in large part to the competitive effects on his business in that vicinity posed by physicians (ophthalmologists), who, in addition to practicing as ophthalmologists, can also practice opticianry. Additional competition was posed by optometrists, other opticians, and large optical purveying firms, such as Opti-World, Pearle Vision Express, J.C. Penney Company, Inc., Lens Crafters, Inc., and Sears Optical. Petitioner Riddlebaugh was able to obtain employment at Omni Optical from February 1989 to February 1990 during the time the challenged rule was in effect, it having taken effect in 1988. He was able to open his business in April 1990 and operate it for four years during the time the rule was in effect. Ophthalmologists and optometrists are allowed under their practice acts to employ non-licensed personnel, who can perform optician-type functions and duties under appropriate supervision, delineated in those practice acts. This poses competition to opticians situated such as Petitioner Riddlebaugh, wholly apart from perceived and purported competitive effects posed by the subject rule under challenge. Petitioners POF and Riddlebaugh simply failed to demonstrate that any deleterious competitive effects imposed on Petitioner Riddlebaugh's business, or the business of any members of Petitioner POF, were occasioned by the operative effects of the rule under challenge. Although Petitioner Riddlebaugh testified that one of the primary factors for closing his business was the competition posed by the effect of the rule, that testimony is not deemed preponderant nor credible as evidence, since Petitioner Riddlebaugh had previously given testimony by deposition that another set of rules promulgated by the Board, unrelated to the challenged rule, was the only reason for closing his business. It appears, however, that the real reason for the closing of his business was due to the combined effects of competition from various optical establishments and other optometric and ophthalmologic professionals, as well as a general economic decline in Volusia County, Florida, in the early 1990's when he was attempting to operate his business and ultimately closed it. Unlicensed persons may work for opticians doing all functions within the definition of opticianry, under appropriate supervision, as delineated in the pertinent provisions of Chapter 484, Florida Statutes, and the opticianry practice rules promulgated thereunder. Unlicensed persons working for opticians can perform such functions as selection of frames and transfer of optical devices without the optician being on the premises. Unlicensed persons can also work for ophthalmologists, performing opticianry duties. In October 1986, the Respondent, with a view toward promulgating this rule, requested that the Board of Opticianry define "fitting, adjusting, and dispensing". This was an effort by the Respondent to avoid conflicting with the legally-defined practice requirements for opticianry. The Board of Opticianry was aware of the rule promulgation effort by the Respondent, however, it never responded to the request. Because it never obtained any definitional information from the Board of Opticianry, the Respondent elected to delete the terms "dispensing" and "measuring" from its proposed rule at that time. The words "delivery of eyeglasses" were inserted. Optician, Richard E. Williams, who testified at the hearing, defined "dispensing" as being the adjustments necessary to make certain that eyeglasses properly fit a patient. Mr. Williams defined "fitting" as determining whether the glasses were set properly on an individual's face. He also defined "fitting" as making certain that pupillary distance was accurate and defined "dispensing" as fitting and adjusting. Petitioner Riddlebaugh defined "fitting" as making certain that the frames of eyeglasses were properly adjusted to the patient. According to the preponderant evidence of record, the "adjustment of frames" is not the practice of opticianry. The purpose of adjusting frames is simply to get them to set comfortably and properly on a patient's face. Adjusting may also be used to align lenses properly within the frame. The "delivery of eyeglasses" is not the practice of opticianry either, nor is the "selection of frames". Unlicensed persons can also work for ophthalmologists, performing opticianry. Petitioner Riddlebaugh testified that the challenged rule affects the integrity of his opticianry license and the viability of his practice because it allows unlicensed persons to perform opticianry functions when working for an optometrist or an ophthalmologist. His testimony is not preponderant or credible, however, since there is no limit to the number of unlicensed persons that opticians themselves can employ to perform opticianry functions under appropriate supervision, just as optometrists and ophthalmologists may employ such unlicensed personnel to perform opticianry under the appropriate supervision, as delineated in their practice act and rules. There is no meaningful distinction between the competitive effects of unlicensed persons working for an optician and those working for ophthalmologists and optometrists. Richard E. Williams, a licensed optician, testified that he had to close his office in Panama City Beach, Florida, because a "group of doctors" opened an office in competition with him. On some days, their office was only staffed by unlicensed persons. He did not indicate in his testimony whether the "group of doctors" were ophthalmologists or optometrists. His testimony also described his practice on Panama City Beach dwindling because of the effects of ophthalmologists, regulated by Chapter 458, Florida Statutes, and the rules promulgated thereunder, who were in practice in the Panama City area. The Petitioners adduced evidence of preparation and dispensing of eyeglasses by unlicensed personnel in an optometry practice and establishment, done under general, rather than direct, supervision, which were more than merely ministerial in nature. Tasks which were performed under purported authority of the challenged rule, that were more than ministerial in nature, and constituted the practice of opticianry by an unlicensed person, were shown by the testimony of Deborah L. Metz-Andrews. Ms. Andrews is not licensed in either opticianry, optometry, or ophthalmology. She was employed by the Newberry Eye Clinic in Chipley, Florida, from January 1991 to August 1992. That establishment is an optometric practice owned and operated by an optometrist and which has an optical department. It has satellite offices in Chipley, Port St. Joe, Panama City Beach, and Panama City, Florida. While employed at Newberry, Ms. Andrews was referred to as "the optician" by the optometrist, but her job title was really "optical technician". During her employment with Newberry, she neutralized glasses with the use of a lensometer, to determine the prescription on the existing glasses worn by a patient. She took prescriptions and determined what the prescription was, what kind of frame would facilitate that prescription, and performed pupillary distance measurements. She determined if a patient needed trifocals or bifocals and did all of the required measurements. She also was responsible for ordering the eyeglasses from the laboratory in Panama City. Once the glasses were made and returned to Chipley, she would place them in the lensometer to check them, and the patient would be notified that the glasses were ready to be picked up. When the patient came in to pick up the glasses, she typically performed the following duties: She fit the glasses on the patient, double- checking the segment height, if they were bifocals; fit the eyeglasses to the nose; adjusted the frame; and made sure that the pantoscopic tilt was correct. She would inquire of the patient's ability to see and if satisfied, the patient would take the eyeglass case, go to a window, pay the bill, and leave. She performed these duties, some of which fall within the practice of opticianry, without the optometrist being on the premises in direct supervision. She stated that she did not feel confident doing some of the types of duties and tasks she was performing and received no guidance from the optometrist. Mr. Williams was accepted as an expert in the practice of opticianry (excluding the field of contact lenses). He opined that the duties being performed by Ms. Andrews, purportedly pursuant to the challenged rule, constitute the practice of opticianry. Dr. John McClane is a licensed Florida optometrist. Dr. McClane's Florida office employs 10 or 11 employees, only one of whom is a licensed optician. The unlicensed personnel in his office adjust frames and perform neutralization of lenses without the lenses having been checked by a licensed optometrist before final delivery to the patient. In operating a lensometer in the neutralization process, unlicensed personnel in Dr. McClane's office also read prisms and transpose prescriptions. The glasses are not always checked by either the licensed optician or the licensed optometrist prior to final delivery to the patient by the unlicensed personnel. According to Dr. McClane's understanding of the term "ministerial", as used in the rule, an unlicensed person can perform any tasks that an optometrist orders and determines, if it is appropriate for patient care. Any delegated task, by his understanding, may be performed under general, rather than direct, supervision. He believes that "direct supervision" is a situation where the optometrist is on the premises directly supervising the work of the unlicensed person. Even if the duties, or some of them, performed by unlicensed personnel at the Newberry and McClane establishments constitute the practice of opticianry by unlicensed personnel, under the general, rather than direct, supervision of optometrists, the testimony of Ms. Andrews and Dr. McClane does not definitively indicate which of the purported opticianry duties Ms. Andrews and other unlicensed personnel performed were actually done with the optometrist away from the premises and not in direct supervision. Further, even if such unlicensed personnel were doing some task which constituted the practice of opticianry, without the direct supervision of an optometrist, there was no competent, credible evidence to show that such practices, under the aegis of the challenged rule, are so widespread or common in practice as to indicate that the language and terminology embodied in the rule is fraught with vagueness so as to cause frequent, recurring misunderstandings by optometrists in conducting their practices with the use of unlicensed personnel. Rather, these two examples offered by the Petitioners may raise simply an issue of the application of the subject rule and a question as to uniformity of its enforcement. In 1986, the legislature enacted a substantial amendment to Section 463.009, Florida Statutes, regarding supportive personnel, by allowing such unlicensed personnel to perform functions for an optometrist under either general or direct supervision. The definition of direct supervision was changed and a definition of general supervision was added in Section 463.002(6)&(7), Florida Statutes. See Chapter 86-288, Laws of Florida. Pursuant to the 1986 amendments, the Respondent began rule-making at its August 21, 1986 annual meeting and rule workshop. The resulting Rule 21Q-3.015, Florida Administrative Code, at paragraph (3), listed the tasks which unlicensed personnel could perform under general supervision as dispensing, selection of frames, measuring and adjusting eyeglasses, and instruction in the insertion, removal and care of contact lenses. On October 3, 1986, Petitioner POF filed a rule challenge to the proposed rule alleging, inter alia, that the rule allowed unlicensed persons to practice opticianry under general supervision, thus, purportedly constituting a departure from the authorizing statute. After the filing of the rule challenge, at a public hearing on October 15, 1986, the Respondent withdrew the proposed rule. During that October public hearing, a member of the Respondent was requested by the Board Chairman to attend the Opticianry Board's rules committee meeting the following day, on October 16, 1986, and to request the opticianry rule committee to develop a rule to provide a definition of "fit, adapt, adjust, and dispense". During the October 16, 1986 meeting of the rules committee of the Board of Opticianry, a member of the Board, Ms. Card, reported that the Respondent was waiting for the Board of Opticianry to define "fitting and adjusting" before the Respondent continued with its rule-making regarding support personnel. She also stated that the Respondent had a meeting scheduled for December 19, 1986. The Board of Opticianry met on November 20, 1986 and approved the minutes of the rules committee meeting of October 16, 1986, but took no action regarding promulgating rules defining the terms which the Respondent requested it to define, even though the Board of Opticianry took extensive action on rule-making on other subjects. Thereafter, at the January 22, 1987 meeting of the Respondent, after receiving no information from the Board of Opticianry regarding the definitions requested, the Respondent approved an amended version of Rule 21Q-3.015, Florida Administrative Code, changing the list of tasks in paragraph (3) to "delivery of eyeglasses, selection of frames, adjustment of frames, and instruction in insertion and removal and care of contact lenses". The tasks of "dispensing and measuring and adjusting eyeglasses", contained in the prior version of the rule, were deleted. A meeting and public hearing was again held on April 10, 1987, during which the proposed rule was addressed; and it was reported that Petitioner POF had again filed a rule challenge to Rule 21Q-3.015, Florida Administrative Code. The proposed rule was then again withdrawn. Workshops by the Respondent were thereafter held in November 1987 and on February 12, 1988 concerning Rule 21Q-3.015, Florida Administrative Code, and the rule was noticed for promulgation on April 29, 1988. Rule challenges were thereafter filed by Petitioner POF and Jack Eckerd Corporation. The Respondent then met on August 5, 1988 and changed the word "employee" to "nonlicensed, supportive personnel" in paragraph (4) of the proposed rule. The two rule challenges were then voluntarily dismissed by those petitioners, and the rule was adopted and became effective on October 23, 1988 and has been in effect since. The Board of Opticianry was well aware of the Respondent's efforts to promulgate the rule on support personnel. The Board of Opticianry never promulgated rules defining "fitting, adjusting, and dispensing" of optical devices, despite the Respondent's request. During the time period that the Respondent was considering the rule in its present form, the members of the Board of Opticianry never agreed on a definition of "dispensing".
Findings Of Fact The Respondent, Alan Goldberg, is an optician licensed to practice in the State of Florida under license number 0000901 issued in 1974. The Respondent has been practicing opticianry for the past seven years under the name of Insight Optical, Inc., at 3801 North University Drive, in Sunrise, Florida. In addition, since 1978 the Respondent has been a 50 percent partner in an optical store in Davie, Florida, located at 4280 South University Drive. The other 50 percent partner in this store was Myron Kirschner. The Respondent provided opticianry services to both of these stores in that he was in charge of producing eyeglasses for them. The Respondent was also responsible for all medicare forms in the partnership store as well as his own store. In July of 1979, approximately, Florence Blanchard went to Insight Optical, Inc., in Davie, and ordered eyeglasses. The glasses which were dispensed to her were made by the Respondent, and he submitted a medicare claim to Blue Cross/Blue Shield for Aphakic eyeglasses. The glasses prepared for and dispensed to Florence Blanchard were not Aphakic glasses. Aphakic eyeglasses are prescribed for patients who have had cataract surgery, and they are much more expensive than standard bifocal or reading glasses. Medicare will reimburse patients only for Aphakic glasses. In order to receive payment, the optician submits to the health insurance company a medicare claim form using a special code number, 03050, to indicate that the eyeglasses provided to the patient are Aphakic glasses. It is a common practice for patients to obtain a pair of temporary glasses immediately after surgery, and then, when their eyes have healed, to obtain a second pair of permanent glasses. Medicare will pay for both sets of eyeglasses if they are the Aphakic type. Mrs. William Feldman was another patient at Insight Optical, Inc. After cataract surgery, she presented two prescriptions to Insight Optical, Inc. and received two pair of eyeglasses. The Respondent submitted to Blue Cross/Blue Shield two claim forms, one for temporary Aphakic glasses and another for permanent Aphakic glasses. Neither pair of eyeglasses dispensed to Mrs. Feldman were Aphakic glasses. Dr. Robert Reeves was a subcontractor employed by the Respondent to work in the Davie store, but who also worked in the Sunrise store. He was instructed by the Respondent to have patients sign two medicare reimbursement forms whenever the patient was eligible for medicare. He did this for each medicare- eligible patient he saw, including a patient named Thelma Hall. He never dispensed two pair of eyeglasses to a patient on the same occasion, including Thelma Hall, and he never had to dispense replacement glasses after the first pair had been dispensed. When he questioned the Respondent about the practice of having patients sign two medicare claim forms, the Respondent advised him not to worry. However, Dr. Reeves felt that he could be looking for trouble by continuing to work for Insight Optical, Inc., and he left. In 1978 and 1979 the Respondent submitted to Blue Cross/Blue Shield between 50 and 75 medicare claims for providing temporary and permanent Aphakic eyeglasses to patients when only one pair of Aphakic glasses had been dispensed, or when a different and less expensive type of glasses had actually been issued. The total overbilling by the Respondent during 1978 and 1979 amounted to $10,843.04. In December of 1980, Blue Cross/Blue Shield made demand upon the Respondent for repayment of the $10,843.04 in overbilling, but no money has been received, and no repayment arrangement was made by the Respondent. Since then, Blue Cross/Blue Shield has placed the Respondent on a financial offset plan in which any claims payable to Insight Optical, Inc., are held as offsets against the repayment that is due. This offset amounts to approximately $1,300 now. Since 1980 the Respondent has not been taking an assignment of medicare claims, but these claims have been submitted directly to Blue Cross/Blue Shield by the patients. The Respondent contends that any overpayment he might have received was the result of simple billing errors, and that any improper claims that might have been submitted by him were due to the failure of the governmental or insurance authorities to properly instruct him relative to claim procedures. However, these contentions are not supported by the weight of the credible evidence. During the course of the Respondent's responsibility for the preparation and submission of medicare forms for both stores, he signed and filed such forms with Blue Cross/Blue Shield between 50 and 75 times. In connection with each claim the Respondent inserted the code number 03050, which is the only code number that indicated that Aphakic eye glasses had been dispensed. The Respondent knew or should have known that medicare would only pay for Aphakic eyeglasses, and that the code number 03050 indicated that Aphakic glasses had been dispensed to the patient. The Respondent also was familiar with the circumstances under which Medicare will pay for two pair of eyeglasses, and his testimony reflects a familiarity with when the Medicare-Blue Cross/Blue Shield computer will and will not authorize payment. After the Respondent was asked to repay the amount of his over-charges, his claims for assigned payment stopped.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Alan Goldberg, be found guilty as charged in the Administrative Complaint, and that his license number 0000901 be REVOKED. THIS RECOMMENDED ORDER entered on this 13th day of January, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Gerald S. Bettman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Barry S. Franklin, Esquire Suite 306 4601 Sheridan Street Hollywood, Florida 33021 Fred Varn, Executive Director Florida Board of Opticianry 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1983. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTICIANRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DOAH Case Number 82-1118 vs. License Number DO 0000733 ALAN GOLDBERG, Respondent. /
The Issue The issue in this case is whether Respondent is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of cosmetology and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed cosmetologist, holding license number CL 0143625. She has been licensed for about ten years. Her license is current and in good standing. Respondent has been applying acrylic nails since 1989. She also performs manicures and pedicures. On May 28, 1992, Sharon Seamon visited the Hair Plus salon, which is located in the Belk-Lindsey department store. Ms. Seamon works at Belk-Lindsey. During the May 28 visit, Respondent applied a full set of acrylic nails onto Ms. Seamon's existing fingernails. Although she dried the nails with a towel, Respondent failed to apply a dehydrating agent to the existing nails before applying the acrylic nails. However, the evidence does not establish that this omission resulted in the fungus that later attacked Ms. Seamon's natural fingernails. On June 6, 1992, Ms. Seamon returned to Hair Plus, and Respondent filled her nails. At this time, the natural fingernails were fine. On June 12, 1992, Ms. Seamon returned to Hair Plus and complained about black spots that had showed up on about four of her fingernails. Respondent advised Ms. Seamon that the spots were bruises. In fact, the spots were fungus. On July 7, 1992, Ms. Seamon returned to Hair Plus and showed Respondent her fingernails. All ten had black lines on them. The nails were clearly infected with fungus. However, Respondent did not indicate what the problem was, if she knew, and failed to give Ms. Seamon pertinent advice as to how to care for the problem. Ms. Seamon promptly visited a physician, who correctly diagnosed the problem as a fungus. After two or three months, the fungus cleared up completely.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Cosmetology enter a final order finding Respondent guilty of gross negligence in the practice of cosmetology, reprimanding Respondent's license, and imposing an administrative fine of $300. ENTERED on April 19, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of April, 1993. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-10 (first sentence): adopted or adopted in substance. 10 (second sentence): rejected as irrelevant. 11: rejected as unsupported by the appropriate weight of the evidence. 12: adopted. 13: rejected as subordinate. 14-21: rejected as unnecessary. Liability in this case is predicated upon Respondent's failure to diagnose. Petitioner did not prove by clear and convincing evidence that the liability may be predicated by the inception of the fungus. 22-23: adopted. 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted. 26-29: rejected as legal argument. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kaye Howerton, Executive Director Board of Cosmetology 1940 North Monroe Street Tallahassee, FL 32399-0792 Anthony Cammarata, Senior Attorney Department of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Delia Urrutia, pro se 8307 Paddle Wheel Tampa, FL 33637
