The Issue The issue for consideration herein was whether Petitioner was properly graded for her performance of the Procedure in the Binocular Indirect Ophthalmoscopic testing on the Florida Optometry Examination conducted in Miami, Florida, on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Board of Optometry, (Board), was the state agency in Florida responsible for the licensing of optometrists in this state. Petitioner, Rhonda L. Wicks, graduated from the Southern California College of Optometry in 1985. She was licensed as a registered optometrist in California in 1985 and was thereafter commissioned in the United States Air Force in the grade of Captain. She was assigned as an optometrist at the MacDill Air Force Base Hospital in Tampa immediately thereafter, and in 1987, was made the Chief of the optometry service at that hospital, a position she still holds. In that capacity, she supervises several other optometrists and, in addition, sees approximately 20 patients per day for a total of over 14,000 patients since assuming that position. Approximately 10% of these involve the administration of the binocular indirect ophthalmoscopic, (BIO), procedure. In addition to passing the licensure examination in California, while still in school she passed the IAB, an internationally recognized certification examination, and, in addition, passed her national boards. Dr. Wicks took the 1988 Florida optometry examination given on September 16 - 18, 1988 at the Baskin-Palmer Eye Institute in Miami, Florida. When graded, she was found to have passed all portions of the examination except the clinical portion for which, on protest, she received an additional 2.5 points which raised her score to 73.5 out of a possible 100. The passing grade in this portion of the exam is 80. Primarily, her difficulties were in the area of the BIO procedure, worth 15 points, for which she was awarded only 2.5 points. She also experienced difficulty on the retinoscopy section for which she received 0 out of 8 possible points, but does not contest her score on that portion. She contests only the evaluation and grading of the BIO procedure. Dr. Wicks was graded by two examiners on the BIO procedure, each of whom gave her a "yes" or "no" grade on each of three sections. One examiner gave her three "no's" for a 0 score. The other examiner gave her two "no's" and a "yes". As a result, she was awarded one half credit or 2.5 points for the "yes" score given her by one examiner on one third of the procedure. In preparing for the written portions of the examination, she studied the materials furnished by the Department. She also considers her taking of the IAB as preparation for this examination. As for the clinical section, she felt comfortable using the practice she has carried on for three years as appropriate preparation except for 2 procedures for which she sought and received help from two ophthalmologists on staff at the MacDill Hospital. Prior to taking the examination, she read that portion of the study guide dealing with patient criteria, and was also familiar with that portion dealing with requirements of the BIO process. To her recollection, the study guide did not mention the required position of the patient during the accomplishment of the procedures but merely outlined what the candidate would be required to demonstrate. Examination of the study guide confirms Petitioner's understanding. The Department relies on that portion of the guide found on page 7 thereof which refers to the criteria for the patient supplied by the candidate and indicates that the patient must be willing to undergo a dilation procedure in the reclined position. The Board contends this indicates "advance notice" of the requirement that the BIO procedure be accomplished in the reclined position. This does not necessarily follow, however. The morning of the examination, one of the examiners briefed the candidates on the layout of the room in which the procedures would be done and the conditions under which they would be accomplished. It was at this time that Petitioner got her first notification that the BIO procedure would be done with the patient in the reclined position. It was also at this time, during the briefing, that the candidates were advised that they were not to be permitted to move the chair in which the patient was placed. At this point another candidate, who is, as is Petitioner, short of stature, asked if the candidate could sit the patient up in the chair and this candidate was advised that she could not. Under these conditions Petitioner attempted to perform the BIO procedure. When she found she could not do it because she was not tall enough, she notified her examiners of the problem and was told by one to "do the best you can." Her complaint of inability to accomplish the procedure because of the physical problem of her height was reiterated 3 times, and on each occasion, she received the same response. In the BIO procedure, the doctor examines the patient's eye through a lens in an attempt to get a view of the patient's retina. Petitioner contends that in order to properly and accurately accomplish the procedure, the doctor has to be 23 inches away from the patient's eye. This 23 inches is made up of the following segments: the distance between the instrument lens and the patient's eye must be approximately 2 inches; the lens in the instrument has a thickness of 1 inch; and the examiner should be approximately 20 inches away from the lens. Petitioner demonstrated through a diagram that the chair in which her patient was reclined placed the back of his head 30 inches from the floor. Added to that is the average 7 inch thickness of a human head from the back to the front of the eyeball. When that 37 inches is added to the 23 inches described, (patient's eye to examiner's eye), a total of 60 inches, (5 feet), is shown. To accomplish the procedure, the candidate must bend over so that the plane of his or her face is parallel to the floor in order to allow the candidate to look, with the instrument used, down through the lens into the patient's eye. According to Petitioner, when she places her head in the appropriate position to look down through the instrument, into her patient's eye, her eye is 53 inches from the floor. This is 7 inches below where it should be in order to properly accomplish the procedure with the patient reclined on the chair as it existed the day of this examination. Petitioner is 62 inches tall when standing straight, and 53 inches is insufficient to allow her to properly accomplish the procedure. She was not allowed either to move the chair or do the procedure with the patient sitting up. The day of the examination, Petitioner tried to accomplish the procedure by standing on her toes, by leaning back, and by taking other measures in an attempt to give her an appropriate view of the patient's eye. Nothing seemed to work. It was at this time she advised the two examiners observing her that she was physically unable to accomplish the procedure due to the height situation and was told, "do the best you can." Candidates are advised, prior to the examination, that if they experience difficulty of any nature during the examination, they are to bring it to the immediate attention of the examiner, and if that does not result in correction of the problem, to fill out and submit a comment card at the end of the examination whereon the candidate outlines the nature of the problem experienced. In this case, Petitioner did not fill in the comment card because she did not think it applied to her situation. She was of the opinion the card was to be filled out only when equipment did not work or the examination, for some other reason that could be corrected, was not appropriate. Here, the equipment worked as it should and the test was appropriate. In addition, the examiners also did what they were supposed to do. Gregory M. Smith served as a patient for Dr. DeFrank at the same examination taken by the Petitioner. During the course of Dr. DeFrank's testing, she performed the BIO examination on him just as Petitioner attempted to do with her patient. However, Dr. DeFrank, also a short woman, was allowed to have Mr. Smith sit up for her performance of the procedure and as a result, was able to accomplish it properly. Mr. Smith had been examined by the examiners prior to Dr. DeFrank's performance of the procedure, and one of the examiners performed the BIO procedure on him while he was in a reclined positions. However, before Dr. DeFrank entered the examination room with the other examiner, Smith was returned to the upright position and Dr. DeFrank did her procedure with him in that position. Dr. James J. Murtagh, an ophthalmologist and Chief of the Ophthalmology service at the MacDill hospital, and Petitioner's supervisor, has observed her in the performance of her duties for a period of two years. He is satisfied she is fully competent to do the procedure in question and, in fact, does it on a daily basis. In his expert opinion, there is no requirement that the BIO be accomplished with the patient in a reclined position. In fact, he feels it is best that the procedure be accomplished with the patient in a position most comfortable and convenient to both the patient and the doctor. The position of the patient, reclined or erect, has no bearing on the doctor's ability to do the procedure properly from an optometric or ophthalmological standpoint. The purpose of the BIO procedure is to examine the back side of the retina. It is necessary to extend the view out to the sides and, admittedly, this can best be done with the patient reclined. He is satisfied, however, that the major portion of the back of the eye, that portion to be observed through this procedure, can be seen easily in either the reclined or the upright position. Dr. Den Beste, Respondent's expert, is of the opinion that because of the nature of the area sought to be examined, it is best that the patient be reclined so that the doctor can, without discomfort, easily move to examine all portions of the retina from the top to the bottom and from side to side. Which procedure is better, however, is of little consequence here since the issue is not which procedure is better but whether the procedure legitimately can be accomplished in an upright position. In this regard, Dr. Murtagh's opinion that it can be is not necessarily inconsistent with Dr. Den Beste's opinion that it is better done in a reclining position. In its answers to Petitioner's Request For Admissions, the Respondent admitted that the BIO procedure can be accomplished on a patient seated in an upright position. The statute does not require that the supine position be utilized for an examination but the Board requires it in its examination because: (1) it is felt the supine position is better for examination purposes, and (2) it is easier for the examiners to observe the candidate's performance of the procedure. On the other hand, a representative of the manufacturer of the instrument utilized by the optometrist in performing the BIO procedure indicated that the instrument is best used in an upright position. Nonetheless, Dr. Den Beste disagrees with this when the instrument is to be used in a qualification examination situation. Under the physical conditions confronted by the Petitioner at the examination site, however, Dr. Murtagh is convinced it would be impossible for her to have accomplished the procedure with the patient reclined. Both Dr. Den Beste and Dr. Loewe, the Department's examination specialist, indicate that when Petitioner experienced her difficulty, she should have immediately pointed out her problem and called for help. They contend that Petitioner failed to do this. The evidence clearly shows, however, that after attempting the procedure, Petitioner, on at least three occasions, advised her examiners she was unable to accomplish the procedure because of the height and distance constraints, and was advised to do the best she could. The purpose of the comment card is to afford the examiners the opportunity to look into a problem situation, take corrective action on the spot if appropriate and possible, and to take future corrective action to prevent a recurrence of the problem at some later time. If the problem complained of is merely related to candidate technique, the examiners can do nothing about it. In the instant case, however, both Den Beste and Loewe feel the Petitioner should have filled out the form when she experienced the difficulty now reported and had she done so, something might have been done at that time. Both Den Beste and Loewe, however, indicate that to the best of their knowledge, the issue of the distance, as experienced by Petitioner here, has never been raised by any examinee in the past. At the hearing, Dr. Den Beste, while denying any prior knowledge of Petitioner's inability to perform the procedure because of her short stature, indicated that if someone did claim the procedure could not be accomplished because he or she was too short, there were some options open which included (1) lowering the chair, (2) adjusting the headset, or (3) pulling the patient's head into a different position so that the procedure could be accomplished. To now state that adjustments to the chair would have been acceptable provides no benefit to Petitioner here who, the evidence does not controvert, was told at the examination she was not allowed to adjust the chair at any time. According to Dr. Loewe, the test as it is configured is not designed to trick candidates. Tests are designed with the hope of fairly testing the skills of all candidates. If it appears there is a problem area, then test officials try to correct it or warn of it in the study guide. Dr. Loewe's inquiry into the examination conditions subsequent to Petitioner's examination revealed that there were several candidates who asked if it were necessary to do the BIO procedure with the patient in a supine position. She also admitted that filling out a comment card is not a prerequisite to filing a formal challenge to the grading or scoring. Dr. Loewe further indicated that if a legitimate reason existed to allow a candidate to perform the BIO procedure on a patient seated in an upright position because of some physical handicap, such as the candidate being confined to a wheel chair, they would make arrangements to accommodate the candidate. There appears to be little difference to be shown, from a practical standpoint, between someone who cannot examine a patient in a supine position because of their confinement to a wheel chair and one who cannot perform the examination appropriately because of his or her physical shortness and the resultant inability to get in a proper position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner be retested on the BIO procedure only, without payment of additional fee, either at a special examination held for that purpose or at the next regularly schedule optometry examination administered by Respondent Board of Optometry. RECOMMENDED this 23rd day of October, 1989 in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1912 The following constitutes my specific rulings pursuant to S 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 12. Accepted and incorporated herein. 13. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. - 29. Accepted and incorporated herein. 30. & 31. Accepted and incorporated herein. 32. & 33. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 40. Accepted and incorporated herein. 41. - 46. Accepted and incorporated herein. Accepted. - 51. Accepted and incorporated herein. Accepted and incorporated herein. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. - 62. Accepted. 63. & 64. Accepted and incorporated herein. 65. - 67. Accepted. 68. - 70. Accepted and incorporated herein. For the Respondent: 1. & 2. Accepted and incorporated herein. Not a Finding of Fact but a statement of the Petitioner's position. & 5. Accepted and incorporated herein. 6. & 7. Not Findings of Fact but a restatement of Petitioner's testimony. Accurate. Accepted and incorporated herein. Accepted as an accurate summary of the evidence on that point. Accepted that the problem could have been corrected. Accepted. COPIES FURNISHED: Richard M. Hanchett, Esquire Trenham, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. 2700 Barnett Plaza Post Office Box 1102 Tampa, Florida 33601 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Guilford Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this hearing was whether Petitioner should be granted additional credit for one or more of questions number 41, 44, 70, or 72 of the National Council for the Certification of Acupuncture, (NCCA), multiple choice examination administered on May 18, 1991.
Findings Of Fact Petitioner, Aaron Benjamin sat for the May 18, 1991 NCCA acupuncture certification examination administered by the Department of Professional Regulation and achieved a passing score on the clean needle technique portion of the examination. However, he received a score of 69 on the written portion of the examination for which a score of no less than 70 was passing. Thereafter, Petitioner challenged four of the written questions on the exam; questions number 41, 44, 70 and 72, alleging that in each case, the question was worded in such a manner as to allow for more than one correct response and that his response, different from the accepted response, was also correct. This allegation was made notwithstanding the written examination instruction that there was "one and only one correct choice for each question." In his challenge, Petitioner also asserted that the examination instructions provided by the NCCA did not limit the textbooks which might be used for preparation for the examination. He claimed that many of these texts encompassed different philosophies of traditional Chinese acupuncture. By the same token, he alleged, the NCCA also did not specify which school of acupuncture should be referenced when answering the challenged questions. There are numerous different acupuncture texts available for reference which are written through different schools of acupuncture and which represent the differing philosophies of acupuncture practitioners. Utilization of differing schools and differing philosophies could affect an examinee's answer choice. Petitioner also asserted as a defect in the examination process the fact that he received his copy of the examination preparation booklet only two weeks prior to the examination rather than the 30 days which should have been provided. He raised these complaints to officials of both the Board of Acupuncture and the NCCA without success. Question 41 in issue reads: If a patient comes to you with a swollen puffy face and complains of scanty urination, which of the Zang-Fu would you first suspect to be disordered? Lung Kidney Spleen Urinary Bladder Petitioner answered this question with "3 - Spleen" while the Department's answer was "1 - Lung." He claims the question does not specify whether the diagnosis of the patient's condition should be from the beginning of the condition or at the time of examination. He asserts, however, that the spleen is an organ with which this condition may be associated since the accumulation of fluid in the interiors causing edema (swelling) is a syndrome of the spleen and incontinence of the urine also relate to that organ. On the other hand, as indicated by the Department's expert, the lung dominates the vital functions of the entire body and greatly influences all its functional activities. It controls and disperses all fluid in the system. The accumulation of water in a patient with a puffy face and scanty urination, therefore, comes from the lung which is responsible for dispersion of water which might, originate from the spleen. Consequently, "Lung" is the correct answer. Question 44 in issue reads: Bouts of dizziness that continue when a patient lies down are attributed to: deficiency excess heat cold Petitioner answered this question with "1 - deficiency", claiming that either excess or deficiency could result in a patient remaining dizzy after lying down. He asserts the wording on the examination question does not provide sufficient information regarding the syndrome to allow the examinee to differentiate whether an excess or deficiency syndrome resulted in the patient's condition. He claims that if an individual suffered from a deficiency syndrome, and the body energy did not stabilize after the patient reclined, the dizziness would continue. The Department's expert notes that the correct answer is "2 - excess" because in a deficiency syndrome, the vital energy, when one lays down, will come back. With an excess, however, even if one lays down, the excess will not go away. Dr. Celpa admits, however, that in western medicine, Petitioner's answer would be correct. However, in traditional Chinese medicine, which deals in philosophy (theory), one has to accept the specifics given by the Chinese. The correct answer, for the purposes of this examination is, therefore, "2 - excess." Question 70 in issue reads: A tight and forceful pulse could indicate: Damp of the Spleen and Stomach. hyperactivity of the Yang of the Heart. penetration of Cold into Liver Channel. Yin deficiency of the Heart. Petitioner answered "1 - Damp of the Spleen and Stomach, while the Department's correct answer was "3 - penetration of Cold into the Liver Channel." He notes that cold is indicated by a slow pulse and penetration of cold into the liver channel is indicated by a deep, wiry and slow pulse. A forceful pulse, he claims, can sometimes mean an accumulation of dampness in the spleen and stomach not allowing the body to metabolize food for distribution to other organs. If one has damp one has an accumulation. Petitioner answered as he did because of the study guide definitions. The study guide directs the examinees to use its definitions and there was no word for forceful included therein. Dr. Celpa, on the other hand, contends "a penetration of cold in the lower channel" is the correct answer as asserted by the NCCA. Most written authorities on the subject indicate that a tight and forceful pulse relates to the liver. Included in these authorities are The Web That has No Weaver; Fundamentals of Chinese Medicine; Acumoxa; and Pulse Diagnosis. Therefore, he concludes that cold in the liver is the closest answer. He asserts, contrary to claims of the Petitioner, that the definition page contained in the examination packet contains all one needs to take the examination. The packet is put together by the Board of Acupuncture and directs definitions outlined in The Web That has No Weaver be used. This gives little room for error. Nonetheless, he admits this question should have more information available in it to assist the examinee and is a poor question. Question 72 in issue reads: Which of the following will cause a foul or offensive smell of the discharge or excretion? Damp disorder combined with Cold. Damp disorder without Cold. Heat disorder of the Xu (deficiency) type. Heat disorder of the Shi (excess) type. Petitioner's answer to this question was "1 - Damp disorder combined with Cold", and the correct answer, as indicated by the Respondent was "4 - Heat disorder of the Shi (excess) type." Petitioner's answer was based on the statement in Traditional Chinese Medicine to the effect that where there is damp there is odor. There is no reference therein to damp heat, so, looking at the remainder of the authoritative statement, he concluded that dampness is associated with odor. On the other hand, Dr. Celpa indicated Petitioner's answer is wrong because damp is not necessary for odor. The heat disorder is the primary one giving an offensive odor. The Shi type adds to it. While damp could have a foul odor, the heat (Shi (excess)) is the only one which gives the discharge. All of the possible answers show something wrong, but the association of heat and excess best meets the test. Consequently, Petitioner's answer could not be correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Board of Acupuncture denying Petitioner's request for additional credit. RECOMMENDED this 28th day of September, 1993, 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 28th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-926 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted as an accurate description of the thrust of Petitioner's complaint. Accepted. Accepted and incorporated herein. Accepted as Petitioner's justification for his answer but rejected as appropriate authority. Accepted as an accurate description of Petitioner's answer and the correct answer, and as Petitioner's justification for his answer, but rejected as appropriate authority. Accepted and incorporated herein. Accepted as an accurate description of Petitioner's justification for his answer and as a restatement of Respondent's position, but rejected as appropriate authority. Accepted and incorporated herein Accepted as Petitioner's justification for his answer but rejected as appropriate authority. FOR THE RESPONDENT: 1. - 11. Accepted and incorporated herein. COPIES FURNISHED: Arthur J. Springer, Esquire 215 Verne Street, Suite A Tampa, Florida 33601 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Acupuncture 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether petitioner should have been awarded a passing grade on the clinical portion of the September 1990 optometry licensure examination?
Findings Of Fact As instructed, petitioner reported for the clinical portion of his optometry licensure examination with his own retinoscope. But the patient he brought with him was not suitable (as a subject for another candidate) because neither of her eyes had spherical objective and subjective error cali- brated in minus cylinder form within +6.0D to -6.0D and . . . an astigmatic correction objectively and subjectively within +0.75 to +4.0D or -0.75 to -4.0D. Respondent's Exhibit No. 1. Once this was discovered, petitioner left the examination site, recruited another patient, and returned in time to take the examination with a group of about ten other applicants. An information pamphlet explained beforehand what the candidates would be asked to do during the clinical examination: . . . You will be allowed 35 minutes to com- plete this section. Two licensed optometrists will independently observe and grade you. You may conduct the specified procedures in any appropriate order. A blank sheet of paper will be provided to you to record the results of your examination. You are allowed a brief period of time to make notes on the blank sheet of paper before you enter the examination room. Tests should be done on both eyes (including dilated eye). Points will be assigned according to the criteria listed below: Patient History (5 points) Chief complaint Personal medical history Personal ocular history Family medical history Family ocular history Follow-up Information (7 points) Follow-up as necessary on the above criteria. Visual Acuity (2 points) Pupillary Examination (6 points) Pupil size Direct and consensual response to light Afferent Pupillary Reflex Confrontation Fields Test (4 points) Confrontation Fields test should be done as described in Duane, J.D. Clinical Ophthal- mology, Harper and Row. Extra-ocular muscle balance (4 points) Versions Distance cover test Objective examination (retinoscopy) (8 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. Subjective refraction (12 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. In the second section, you will examine your own patient's eyes. This portion will be graded by examiners different from the exam- iners of Section 1. They will give you direc- tions and request certain views of the eye or ask for information as observe your performance through a teaching arm on the slit lamp or a teaching mirror on the BIO. They will assign grades independently. You will be asked to do the following procedures according to the specified criteria: Binocular indirect ophthalmoscopy (15 points) Accurately views and evaluates retinal land- marks as requested. Five points will be given for each of the three areas. Note: Patient will be in reclined position during this pro- cedure. We will supply a Keeler BIO headset. However, you will be allowed to use your own BIO if it has attached teaching mirrors. Biomicroscopy (anterior segment) (16 points) Demonstrates requested view of anterior struc- tures of the eye. Four points each will be given for performance related to: Cornea Anterior chamber Lens Anterior vitreous Goldman[n] tonometry (5 points) Accurately measures intra-ocular pressure. Biomicroscopy (posterior segment) (8 points) Accurately views and evaluates posterior pole landmarks as requested with two points each for four designated areas. Note: The Zeiss slit lamps are equipped with Hruby lenses. If you prefer a fundus contact lens, or a 90 diopter lens, you must provide your own lens. Gonioscopy (8 points) Accurately views and evaluates angle structure. To protect the patient, 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 instructions from the examiner and will continue until you notify the examiner to grade the procedure. Respondent's Exhibit No. 1. After petitioner's return with a patient whose eyes met the examiners' criteria, he was tested in the manner the candidate information booklet had described, which is the same procedure that has been followed since 1986. Refractions Robert Roos, a 43-year-old compound myopic astigmatic (who was assigned the number 079), was the patient it fell to petitioner to examine in section one. Before petitioner saw Mr. Roos, three licensed optometrists independently evaluated Roos' eyes. After objective refraction or retinoscopy of his right eye, they recorded astigmatic orientation or axis values of 110o, 115o and 116o, spherical values of -2.75, -2.5 and -1.75 diopters, and cyllindrical values of - 1.0, -1.75 and -1.75 diopters. Their subjective examination of the same eye yielded axis values of 107o, 110o and 111o, spherical values of -2.25, -2.25 and -1.75 diopters, and cyllindrical values of -1.5, -1.5 and -2.0 diopters. After the examiners' retinoscopy and subjective refraction, but before the candidates evaluate the patients, their left eyes are dilated with drops containing 1.0% tropicamide and 2.5% neosynephrine, the same solution that has been used since 1983. The result is left-eyed cycloplegia, paralysis of the intraocular muscle which precludes normal pupillary response of the kind petitioner observed (and reported as +4) in Mr. Roos' right eye, just before performing the refractions. (Patients' left eyes are dilated so candidates can perform other procedures.) As required, petitioner performed his own objective refraction with a retinoscope. He reported an astigmatic orientation of 105o, assigned a spherical value of -0.75 diopters, and put the cylindrical value at -2.25 diopters, for Mr. Roos' (undilated) right eye. After subjective evaluation, he reported a prescription he said effected a correction to 20/20 (a claim no examiner had occasion to evaluate), an axis value of 100o, a spherical value of -1.25 diopters and a cylindrical value of -2.0 diopters. In keeping with the grading protocol applied evenhandedly to all candidates, petitioner's evaluations were compared, item by item, to those of the examiner who most nearly agreed with his conclusions. This yielded discrepancies of 5o, 1.0 and 0.5 diopters for the retinoscopic or objective refraction results; and of 7o, 0.5 and 0.0 diopters for the subjective results. In no case did his results fall between differing examiners' results, although he agreed with one examiner on one result. Petitioner received two points for the objective refraction portion of the test and three points for the subjective portion. Chamber Depth For section two of the clinical portion of the test, Mr. Roos returned to the candidate with whom he came to the examination, and petitioner turned to the eleventh-hour recruit who had accompanied him. Reading the prescribed script, an examiner instructed petitioner in these words: Estimate the depth of the anterior chamber using the Von Herrick-Shaffer technique. Remember that IV is wide open and I is narrow. Respondent's Exhibit No. 2. The anterior chamber is deepest at the center and shallowest near the limbus, where the cornea joins the sclera, and aqueous fluid filters out of the eye. Because the angle at the junction affects the rate of flow, the depth at the chamber periphery is more likely to be of clinical significance than the depth at the center. The Von Herrick-Shaffer technique is a means of measuring chamber depth at the periphery, and not in the middle: a slit lamp casts the cornea's shadow on the chamber floor, and the ratio between the length of the shadow and the width of the cornea is determined. By whatever technique, custom and practice mandate measurement of the depth of the anterior chamber at the edge. When petitioner reported the depth at the center of the chamber, neither examiner (both of whom evaluated independently) awarded any points. Tonometry The Goldmann tonometry portion of the test required candidates to gauge intraocular pressure by placing fluorescein on the white of the patient's eye, then placing a probe and aligning the mires of the tonometer. An examiner read to each candidate these directions beforehand: Add fluorescein to non-dilated eye. Perform applanation tonometry and indicate when you have the proper measurement. You will be given a maximum of 2 minutes to perform this procedure. Respondent's Exhibit No. 2. Because the first examiner gave petitioner full credit, and the second gave him no credit, he received half credit for this part of the examination. At hearing, petitioner testified that he was not ready for the second examiner to grade, and conceded that the mires were no longer in alignment when the second examiner checked. (The second examiner also noted a misplaced light source.) But petitioner, who had the prerogative to "indicate when [he] ha[d] the proper measurement," Respondent's Exhibit No. 2, and did so before the first examiner checked, said nothing to the second examiner (who followed closely on the first) to indicate that he felt the measurement was no longer "proper."
Recommendation It is, accordingly, recommended that respondent deny petitioner's application for licensure on the basis of the September 1990 optometry licensure examination, without prejudice to any subsequent application. RECOMMENDED this 10th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of August, 1991. COPIES FURNISHED: Alejandro M. Tirado 606 First Street Neptune Beach, FL 32266 Vytas J. Urba, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue for consideration in this case is whether Respondent's license as an optometrist 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, the Petitioner, Board of Optometry, was responsible for the licensing of optometrists and the regulation of the practice of optometry in this state. Respondent was licensed as an optometrist in Florida, practicing under license number OP0001451, originally issued on September 21, 1978. Some time prior to or during 1987, Respondent, Dr. Brian L. Weber, dissatisfied with what he found to be the practice of large optical dispensers with regard to pressuring optometrists to prescribe lenses, decided to open a facility where patients needing glasses could receive an eye examination from a licensed optometrist and also, if the patient so desired, obtain the eye wear prescribed. Consistent with what he perceived to be the rules of the Board of Optometry at that time, Dr. Weber entered into a business venture with Mr. Record, a licensed optician, through which a patient could do just that. In 1990, Dr. Weber and Mr. Record changed the name of the business to 29/49 Optical, Inc., and as of March 2, 1990, operated five separate stores under that name. Dr. Weber and Mr. Record incorporated the company within which each ultimately owned 50 percent of the stock of the corporation. Dr. Weber provided the funds to start the business, and Mr. Record, the "sweat equity." Mr. Record was made president of the company because he had the experience in opticianry and was responsible for operations. Weber was the "money man," and provided the overall business goals and strategy. Once the corporation was established and the initial filing was completed, Mr. Record was responsible for recurring filings as a matter of course. The firm, 29/49 Optical, Inc., was in the business of providing optician services. The leases for the stores were taken out in the name of the company which, in essence, provided a "turn-key" office to a licensed optometrist who was one of those individuals associated with Respondent in the optometry practice known as Brian L. Weber and Associates. Each of the optometrists in the association was an independent contractor, associated in practice with Respondent. None of them were employees of 29/49 Optical, Inc. In each of the offices of 29/49 Optical, Inc., was a display area where glass frames were displayed and fitted, a waiting room used both by customers of the optical shop and patients of the resident optometrist, a storage room, and, for the exclusive use of an optometrist, an examining room equipped with those items and supplies necessary for the accomplishment of eye examinations. As was the custom in the profession at the time, this office, owned or leased by 29/49 Optical, Inc., was furnished to the optometrist at little or no cost. Though it was hoped that the optometry patients would choose to have their prescriptions for glasses or contact lenses filled at 29/49 Optical, Inc., they were under no obligation to do so, and many did not. Patients seen by an optometrist in the 29/49 Optical, Inc. offices were billed by the optometrist for the optometry services and by the optical company for the cost of any glasses or contact lenses purchased. The two charges were paid separately, the payments placed in separate accounts. Payments for eye examinations by an optometrist were deposited to the account of Brian L. Weber, optometrist. Payments for glasses or lenses were deposited to the accounts of 29/49 Optical, Inc. The funds were neither mixed nor co-mingled, and funds placed in the account of Brian L. Weber were not used to pay the expenses of the 29/49 Optical, Inc. stores. Each optometrist maintained his or her own patient records which were stored in a filing cabinet maintained for that purpose separate and apart from the files relating to the operation of the 29/49 Optical, Inc. stores. Only the optometrists made entries to those records. Since the optometrists who manned the offices in the 29/49 Optical, Inc., stores were independent contractors, within basic guidelines as to routine procedures and office hours, they were free to work such hours as they chose and to charge what they believed to be appropriate fees for other than routine procedures. They were paid with funds drawn from the account of Brian L. Weber, into which the patient fees for optometry services were deposited. In addition to the associates who practiced at the individual shops, Dr. Weber also practiced at each and all of the shops periodically. Mr. Record was paid from the checking account maintained by 29/49 Optical, Inc., on which account either Record or the Respondent could write checks. Dr. Weber is quick to admit that the advertisement for 29/49 Optical, Inc., which appeared in the March 1, 1990, edition of the St. Petersburg Times is a poorly worded advertisement. So much of the advertisement which implies a total price to be paid to 29/49 which includes examination and glasses is admittedly inappropriate, and when he saw the proof prior to publication, he claims to have made appropriate changes which would have corrected the deficiencies. However, the corrections dictated by Respondent were not made, and the inappropriate advertisement was published. His immediate complaint to the newspaper after the first publication date resulted in an immediate correction. Respondent claims that when the disciplinary action was initiated against him in 1992, he immediately contacted the newspaper and requested a letter which would clarify the situation. He did not tell the paper what to say, and the subsequent letter from the paper relates to a failure to have his name appear in the March 1, 1990, advertisement. This is not the defect in the advertisement of which the Board complains. Dr. Liane, a Board certified optometric physician, a former Chairman of the Board of Optometry and now an expert for and consultant to the Board, reviewed the case file in this matter for the Board, along with the transcripts of other cases relating to Dr. Weber. None of the other matters was based on disciplinary action. To his recollection, the Board's rule on corporate practice was promulgated in 1986, at the time he was a member of the Board. At that time, the Board conducted numerous workshops around the state to advice practitioners of the standard of practice in that regard. Dr. Liane was also on the Board's legislative committee when Chapter 463, Florida Statutes, was enacted. The Board of Optometry was concerned with the protection of the public from the danger of allowing opticians or unlicensed entities to have input into whether lenses were needed. The Board, and the legislature, wanted to allow optometrists to practice with other licensed health care practitioners, but not with unlicensed opticians. After the legislation was passed, the Board promulgated its Rule 21O-3.008, which outlines factors which must be shown in order to prove corporate practice. One of the prohibitions in the rule relates to any practice or pronouncement which "implies" that the corporate or unlicensed entity is providing professional services. In the instant case, Dr. Liane is of the opinion that the original advertisement in question implies that 29/49 Optical, Inc., is offering a complete eye examination. As was noted previously, Respondent agrees, and it is so found. Having considered all the evidence available to him, including the advertisement of March 2, 1990, and the assumption of the lease arrangements existing prior and up to 1990, Dr. Liane concluded that Respondent was involved in an unauthorized corporate practice. While a side-by side practice between optometrists and opticians is common and approved, it may not be within a corporate practice by the same individuals who are in business together.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Optometry enter a Final Order dismissing Counts I and II of the Administrative Complaint; finding him guilty of Count III thereof and imposing an administrative fine of $250.00. DONE AND ENTERED this 3rd day of November, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1997. COPIES FURNISHED: Alexandria E. Walters, Esquire William C. Childers, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Angela T. Hall Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Grover Freeman, Esquire 201 East Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Eric G. Walker Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pete Peterson General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700
The Issue Whether the proposed changes to proposed Rule 64B-5.001 published in the Florida Law Weekly (FAW) on December 17, 2004, (the proposed changes), constitute an invalid exercise of delegated legislative authority pursuant to the provisions of Section 120.56(1) and (2), Florida Statutes (2004).1 Whether the proposed changes are inconsistent with the Final Order entered in DOAH Case 04-3172RP on November 23, 2004.
Findings Of Fact Petitioner sat for the August 24, 1991 Optometry licensure examination. He did exceedingly well on two of the three portions of the examination. His grade on the clinical portion (sections 1 and 2) was 71.5. The minimum passing score was 75.0. Petitioner challenged the behavior of the examiners in section 2 of the clinical portion of the examination, and the grade he received for several individual procedures tested. Petitioner's patient for the clinical examination was his wife, Susan Vazoulas. Mrs. Vazoulas testified that prior to Petitioner entering the examination room for section 2 of the clinical portion of the examination, she overheard the two examiners, one male and one female, discussing material already on their clipboards. The male examiner indicated he had given an "81". The female examiner indicated she had given an "84", but was a "hard liner." Petitioner was not present during this exchange. Mrs. Vazoulas did not see what was on the examiners' clipboards and could not testify with any certainty as to what was being discussed. Every reasonable inference suggests that the examiners' conversation did not apply to Petitioner's section 2 clinical test for the following reasons: The examiners' comments were made before the Petitioner entered the examination room and before he began to take his section 2 clinical examination. The numbers "81" and "84" bear no relationship to any of Petitioner's scores on any portion of his licensure examination. The examiners for section 2 were not the examiners for section 1, whereon Petitioner scored 100%. If anything, had the examiners reached two divergent scores of 81 and 84, respectively, it would more likely suggest the presence of independent judging and the lack of collusion, instead of the presence of collusion and absence of independence as assumed by Petitioner in this instance. The examination room in which section 2 of Petitioner's clinical examination was administered was very small, approximately 8 x 10 feet. During section 2, the two examiners separately viewed each of 16 procedures performed on Mrs. Vazoulas by Petitioner and after each procedure, they individually returned to their respective clipboards to record their scores. The two clipboards were placed on a countertop side by side while not in use. Petitioner and Mrs. Vazoulas each observed the examiners separately marking their respective clipboards but never saw what was written down by either of the examiners. Petitioner and Mrs. Vazoulas felt it would have been hard for each examiner to avoid seeing the score assigned by the other examiner, but neither Petitioner nor Mrs. Vazoulas observed any actual sharing of information or scores during Petitioner's section 2 clinical examination or afterwards. Petitioner and Mrs. Vazoulas testified in terms of the examiners having "the chance" to see each other's clipboard and "the opportunity" for collusion and absence of independence in grading. In this instance, Petitioner considered that identical grades given by both examiners was proof of their collusion and arbitrary and capricious grading. However, similarity of scores is equally susceptible of being interpreted as resulting from each examiner having observed the same performance by Petitioner on each of the 16 procedures and applied the same judging criteria to what s/he saw. The law does not presume illicit behavior without more evidence than that it "could have" happened. Petitioner challenged his section 2 grade for clinical procedures 4-9 for biomicroscopy, alleging that he was graded 17.5 out of a possible 20 points while all parts were checked "yes". In fact, the score sheets show that all parts were not checked "yes" by both examiners. One examiner graded procedure four with "N" for "no". This could result in an "all or nothing" score of zero for that item. Assuming, arguendo, the "yes" and "no" were averaged, Petitioner's score still would not have amounted to the additional 2.5 points Petitioner alleged he was entitled to out of this section of the examination. Respondent's Exhibit 2 is a document titled "Optometry Practical Examination Section 2 - Grading Standards August 1991." The instructions to the examiners state in the second paragraph of that document, "Comment on reason for any NO judgment. Comment if performance was a marginal YES." Thus, examiners could legitimately insert comments even where they responded "yes" in evaluating the performance of the candidate in a given procedure. They did so here. Petitioner challenged his grade on procedure number 15, gonioscopy, stating that partial credit should have been given for the showing of the proper angle. Petitioner's Exhibits 1 and 2, the grade sheets for section 2, reflect that Petitioner received no credit from either examiner. Both "no" responses have comments recorded next to them. Respondent's Exhibit 2, page 4, states the criteria for a "yes" response on procedure number 15, gonioscopy, as: Must be focused on nasal angle with proper illumination Gives proper response to question Both criteria must be satisfied to receive a "yes" response. Petitioner and Respondent concur that Petitioner correctly demonstrated the angle required in procedure 15, gonioscopy, which satisfied one of the two required criteria to receive a "yes" from either examiner. Petitioner attempted, by extrapolation of procedure 5, to show that the remaining criterion was also met. He was not persuasive in this attempt. The grade sheets reflect that Petitioner failed to satisfy the second criterion: to give the correct response to the question posed. Petitioner made no valid showing that he did answer the question correctly or that the points available from this answer would raise his total score 3.5 points for a passing grade. Petitioner challenged his grade for procedure number 1, binocular indirect ophthalmoscopy (BIO). Petitioner admitted that he did this procedure incorrectly by using the 3:00 o'clock position, rather than the 9:00 o'clock position requested by the examiners but felt six points should not have been deducted and it should have been marked "yes, marginal," awarding him a majority of the six lost points. Petitioner did not demonstrate good cause within the grading criteria in evidence why he should have received the "majority," presumably four, points. Petitioner presented no evidence concerning the grading of challenged procedures 11 and 14. As to all of the foregoing, Petitioner's challenge to the effect that he did not understand the grading system was not sufficient to carry his burden of proof to establish that the examination, scoring, and/or grading system was arbitrary or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Professional Regulation enter a final order ratifying the examination grade previously assigned to Petitioner. DONE and RECOMMENDED this 15th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2205 The following constitute specific rulings, pursuant to S120.59 (2) F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: None filed Respondent's PFOF: 1-6 Accepted except for unnecessary, subordinate on cumulative material. 7-13 Accepted except for subordinate material. It is noted that Petitioner bears the burden of proof herein, not Respondent. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 George L. Vazoulas 182C Chestnut Ridge Drive Harrisonburg, VA. 22801 Diane Orcutt, Executive Director Department of Professional Regulation, Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the Florida Medical Association and Florida Association of Physicians Assistants have standing to initiate this challenge to the proposed rules. (See Section 120.56(3) Florida Statutes.) Whether proposed Rules 64B1-4.010 and 64B1-4.011, Florida Administrative Code, constitute invalid exercises of delegated legislative authority because they exceed the Board of Acupuncture's rulemaking authority contained in Section 457.104, Florida Statutes. (See Section 120.52(8)(b), Florida Statutes.) Whether proposed Rules 64B1-4.010 and 64B1-4.011, Florida Administrative Code, constitute invalid exercises of delegated legislative authority because they enlarge, modify, or contravene the provisions of Section 457.102, Florida Statutes. (See Section 120.52(8)(c), Florida Statutes.)
Findings Of Fact It was stipulated that Petitioner FMA is organized and maintained for the benefit of approximately 16,000 licensed allopathic and osteopathic Florida physicians. FMA's standing in this proceeding has always been at issue. The foregoing stipulation encompasses all of the factual allegations about Petitioner contained in the Petition. Dr. Steven West, an allopathic physician licensed in the State of Florida pursuant to Chapter 458, Florida Statutes, and a member of FMA, testified as follows: Well, we have two interests. Certainly one interest is that we want to make certain that only qualified individuals and practitioners treat patients and diagnose patients because we have an interest in the health and welfare of the people of the State of Florida. Secondly, we have an interest in making certain that all of the hard work and time that we have spent in our training remains valuable and is considered unique and important. And so we have a concern about the devaluation of the practice of medicine. (TR-17) It was stipulated that there is only one Respondent, the Board of Acupuncture, created by the Florida Legislature and placed within the Florida Department of Health. It is axiomatic that Respondent has standing herein. There were no stipulations as to the standing of either intervenor, and both the Board and FSOMA have asserted in their respective Proposed Final Orders that FAPA, as well as FMA, is without standing to bring this rule challenge. However, no party has contested the veracity of the factual statements concerning standing in either Petition to Intervene, and no party opposed intervention. The Petitions to Intervene of FAPA and FSOMA were granted, subject to proving-up standing at hearing. Even stipulations as to standing do not preclude consideration of standing as a matter of law. Florida Medical Ass'n., Inc., et al. v. Dept. of Health, Florida Bd. of Nursing, et al., DOAH Case No. 99-5337RP (Final Order March 13, 2000), per curiam affirmed Bd. of Nursing, et al. v. Florida Medical Ass'n., Inc., et al, So. 2d (Fla. 1st DCA 2001). Therefore, under these circumstances, and applying that case, the intervenors' factual allegations for purposes of standing may be taken as true for findings of fact, but each intervenor's status still depends upon that of the respective party upon whose behalf each intervenor entered this case. Therefore, with regard to the status of FAPA, it is found that: FAPA is organized and maintained for the benefit of the licensed Florida physicians assistants who compromise [sic] its membership and has as one of its primary functions to represent the interests of its members before various governmental entities of the State of Florida, including the Department of Health and its boards. (FAPA Petition to Intervene) Therefore, with regard to the status of FSOMA, it is found that: FSOMA is a Florida nonprofit corporation comprised of over one-third of the doctors of oriental medicine and licensed acupuncturists under the regulatory aegis of the Board of Acupuncture, State of Florida Department of Health, Chapter 457, F.S., with a mission to represent the acupuncture and oriental medicine practitioner interests of its members in judicial, administrative, legislative and other proceedings. (FSOMA Petition to Intervene) The text of proposed Rule 64B1-4.010, set forth in the petition is no longer correct, because it has been altered by Notices of Change, pursuant to Chapter 120, Florida Statutes. Rule 64B1-4.010, as currently proposed, would provide: Traditional Chinese Medical Concepts, Modern Oriental Medical Techniques. Traditional Chinese medical concepts and modern oriental medical techniques shall include acupuncture diagnosis and treatment to prevent or correct malady, illness, injury, pain, addictions, other conditions, disorders, and dysfunction of the human body; to harmonize the flow of Qi or vital force; to balance the energy and functions of a patient; and to promote, maintain, and restore health; for pain management and palliative care; for acupuncture anesthesia; and to prevent disease by the use or administration of: stimulation to acupuncture points, ah-shi points, auricular points, channels, collaterals, meridians, and microsystems which shall include the use of: akabane; allergy elimination techniques; breathing; cold; color; correspondence; cupping; dietary guidelines; electricity; electroacupuncture; electrodermal screening (EDS); exercise; eight principles; five elements; four levels; hara; heat; herbal therapy consisting of plant, animal, and/or mineral substances; infrared and other forms of light; inquiring of history; jing-luo; listening; moxibustion; needles; NAET; observation; oriental massage -- manual and mechanical methods; palpation; physiognomy; point micro-bleeding therapy; pulses; qi; xue and jin-ye; ryodoraku; san-jiao; six stages; smelling; tongue; tai qi; qi gong; wulun- baguo; yin-yang; zang-fu; Ayurvedic, Chinese, Japanese, Korean, Manchurian, Mongolian, Tibetan, Uighurian, Vietnamese, and other east Asian acupuncture and oriental medical concepts and treatment techniques; French acupuncture; German acupuncture including electroacupuncture and diagnosis; and, the use of laboratory test and imaging findings. (Emphasis supplied). The "authority" cited by the Board for proposed Rule 64B1-4.010 is Sections 457.102 and 457.104, Florida Statutes. The Board cites the "law implemented" for Rule 64B1- 4.010 as Section 457.102, Florida Statutes. The text of Rule 64B1-4.011, as set forth in the petition also is no longer correct, because it has been changed by Notices of Change, pursuant to Chapter 120, Florida Statutes. Rule 64B1-4.011, as currently proposed, would provide: Diagnostic techniques which assist in acupuncture diagnosis, corroboration and monitoring of an acupuncture treatment plan or in making a determination to refer a patient to other health care providers shall include: traditional Chinese medical concepts and modern oriental medical techniques, recommendation of home diagnostic screening; physical examination; use of laboratory test findings; use of imaging films, reports, or test findings; office screening of hair, saliva and urine; muscle response testing; palpation; reflex; range of motion, sensory testing; thermography; trigger points; vital signs; first-aid; hygiene; and sanitation. (Emphasis supplied). The "authority" cited by the Board for proposed Rule 64B1-4.011 is Sections 457.102(1) and 457.104, Florida Statutes. The Board cites the "law implemented" for proposed Rule 64B1-4.011 as Section 457.102 (1), Florida Statutes. Section 457.104, Florida Statutes, currently provides: The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of this chapter conferring duties upon it. Section 457.102, Florida Statutes, currently provides: "Acupuncture" means a form of primary health care, based on traditional Chinese medical concepts and modern oriental medical techniques, that employs acupuncture diagnosis and treatment, as well as adjunctive therapies and diagnostic techniques, for the promotion, maintenance, and restoration of health and the prevention of disease. Acupuncture shall include, but not be limited to, the insertion of acupuncture needles and the application of moxibustion to specific areas of the human body and the use of electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies, as defined by board rule. "Acupuncturist" means any person licensed as provided in this chapter to practice acupuncture as a primary health care provider. "Board" means the Board of Acupuncture. "License" means the document of authorization issued by the department for a person to engage in the practice of acupuncture. "Department" means the Department of Health. "Oriental medicine" means the use of acupuncture, electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies. "Prescriptive rights" means the prescription, administration, and use of needles and devices, restricted devices, and prescription devices that are used in the practice of acupuncture and oriental medicine. (Emphasis supplied) The Board asserts that the use of a comma between "other adjunctive therapies" and "as defined by board rule" in the second sentence of Section 457.102(1), Florida Statutes, establishes that the clause "as defined by board rule" applies to "the insertion of acupuncture needles and the application of moxibustion to specific areas of the human body and the use of electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies," and those practices "included but not listed." Rule 64B1-3.001, Florida Administrative Code, most recently amended February 27, 1992, addresses "adjunctive therapies" of acupuncturists as follows: Acupuncture diagnostic techniques shall include but not be limited to the use of observation, listening, smelling, inquiring, palpation, pulses, tongues, physiognomy, five element correspondence, ryordoraku, akabani, German electro acupuncture, Kirlian photography, and thermography. (Emphasis supplied). * * * Adjunctive therapies shall include but not be limited to: Nutritional counseling and the recommendation of nonprescription substances which meet the Food and Drug Administration labeling requirements, as dietary supplements to promote health; Recommendation of breathing techniques and therapeutic exercises; and Lifestyle and stress counseling; The recommendation of all homeopathic preparations approved by the Food and Drug Administration and the United States Homeopathic Pharmacopeia Committee; and Herbology. This rule has not been challenged.1 Likewise, Rule 64B1-4.008, Florida Administrative Code, promulgated December 24, 2000, has not been challenged,2 and defines "adjunctive therapies," of acupuncturists as follows: Adjunctive therapies shall include the stimulation of acupuncture points, ah-shi points, auricular points, channels, collaterals, meridians, and microsystems with the use of: air; aromatherapy; color; cryotherapy; electric moxibustion; homeopathy; hyperthermia; ion pumping cords; iridology; kirlian photography; laser acupuncture; lifestyle counseling; magnet therapy; paraffin; photonic stimulation; recommendation of breathing techniques; therapeutic exercises and daily activities; sound including sonopuncture; traction; water; thermal therapy; and other adjunctive therapies and diagnostic techniques of traditional Chinese medical concepts and modern oriental medical techniques as set forth in Rule 64B1-4.010. (Emphasis supplied). Acupuncturists are, by law, "primary health providers." Subsections 457.102(1) and (2), Florida Statutes. (See Finding of Fact 14). A primary health care provider is a professional to whom patients can go without a referring physician and who, by diagnosis and treatment, assumes responsibility for patients' appropriate care. Allopaths and osteopaths are also primary health care providers. FSOMA asserted that the challenged rules are supported by Section 457.1085, Florida Statutes, which provides, 457.1085 Infection control--Prior to November 1, 1986, the board shall adopt rules relating to the prevention of infection, the safe disposal of any potentially infectious materials, and other requirements to protect the health, safety, and welfare of the public. Beginning October 1, 1997, all acupuncture needles that are to be used on a patient must be sterile and disposable, and each needle may be used only once. The traditional course of education, training, and experience for allopathic physicians and osteopathic physicians involves four years of undergraduate college education, four years of medical school, one-year internship, and one to two years of residency, but is more specifically set out for licensing purposes in Sections 458.311-458.318, Florida Statutes, for allopaths, and Sections 459.0055-459.008, Florida Statutes, for osteopaths. All of these courses/periods of learning involve, to a greater or lesser degree, learning to use and interpret modern laboratory and imaging tests. The traditional course of education for acupuncturists involves only two years of college and four years of acupuncture schooling, but is more specifically set out for licensing purposes by Section 457.105, Florida Statutes. Four hours per week for one year is about the extent of training in the use and interpretation of modern laboratory tests and imaging films afforded acupuncture students. There clearly are more stringent requirements for licensure of allopaths and osteopaths than for acupuncturists. Allopaths and osteopaths clearly spend more time training in the ordering, use, and interpretation of modern laboratory tests and film imaging. As previously stated (see Finding of Fact 14), an acupuncturist, as defined by law, . . . employs acupuncture diagnosis and treatment, as well as adjunctive therapies and diagnostic techniques for the promotion, maintenance, and restoration of health and the prevention of disease . . .(Emphasis supplied). Section 458.305(3), Florida Statutes, defines the "practice of medicine" as "Practice of medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or physical or mental condition. (Emphasis supplied). Section 459.003(3), Florida Statutes, defines the "practice of osteopathic medicine" as "Practice of osteopathic medicine means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health. (Emphasis supplied). The following statutes express the Legislature's intent with regard to regulation of acupuncturists, allopaths, and osteopaths: 457.101 Legislative Intent - The Legislature finds that the interests of the public health require the regulation of the practice of acupuncture in this state for the purpose of protecting the health, safety, and welfare of our citizens while making this healing art available to those who seek it. 458.301 Purpose - The Legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The Legislature finds further that it is difficult for the public to make an informed choice when selecting a physician and that the consequences of a wrong decision could seriously harm the public health and safety. The primary legislative purpose in enacting this chapter is to ensure that every physician practicing in this state meets minimum requirements for safe practice. It is the legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. 459.001 Purpose - The Legislature recognizes that the practice of osteopathic medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The Legislature finds further that it is difficult for the public to make an informed choice when selecting an osteopathic physician and that the consequences of a wrong decision could seriously harm the public health and safety. The primary legislative purpose in enacting this chapter is to ensure that every osteopathic physician practicing in this state meets minimum requirements for safe and effective practice. It is the legislative intent that osteopathic physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. There was competent testimony that allopathic and osteopathic physicians may utilize acupuncture in the practice of their professions, as defined respectively at Sections 458.305(3) and 459.003(3), Florida Statutes. They are permitted to perform acupuncture, although their traditional course of professional education and training involves fewer (or no) hours of acupuncture education and training than are required under Chapter 457, Florida Statutes, the acupuncture practice Act. Presumably, that is because their respective professions and the Legislature have recognized that the training of allopaths and osteopaths encompasses the appropriate skills for acupuncture. However, if they perform acupuncture, they can only be disciplined under their respective practice Acts, Chapters 458 and 459, Florida Statutes. The Board of Acupuncture has no authority to discipline them. The record is silent as to whether or not Physicians Assistants, whether FAPA members or not, may legitimately perform acupuncture. To "practice medicine" or to "practice osteopathic medicine," as those terms have been respectively defined by Sections 458.305(3) and 459.003(3), Florida Statutes, do not render modern laboratory tests and imaging films unique to medical or osteopathic diagnosis. However, Harvey Kaltsas, a Florida-licensed acupuncturist and a member of the Board of Acupuncture, testified that "traditional Chinese medical concepts," and "modern oriental medical techniques" include gynecological and obstetric services, abortions, and cut-and-stitch surgery and that these services are performed by acupuncturists in China today. He further testified that the Board of Acupuncture believed that these tasks are "better handled" by allopathic physicians, and therefore the Board of Acupuncture has promulgated rules (most particularly the unchallenged rules addressing adjunctive therapies) which do not list these services. The Board believed that by not listing these services, it was prohibiting its licensees from performing them. The Board further asserts that its challenged rules only define "traditional Chinese medical concepts" and "modern oriental medical techniques" as used in Chapter 457, Florida Statutes, to include the use of laboratory tests and imaging findings and to clearly specify that "diagnostic techniques" for acupuncturists also include the use of modern laboratory test findings, and use of imaging films, reports, and test findings. There was competent testimony that modern laboratory Chinese medical tests on urine and feces evolved from ancient and traditional concepts and are regularly used in China and the orient by acupuncturists today. There was competent testimony that comparison of x-rays, at least for gross chest problems or for placement of acupuncture needles, is taught in an acupuncture college in Florida as part of its usual and required curriculum today. Allopaths and osteopaths use laboratory tests, imaging films, and reports thereon to reach an initial diagnosis and to test and revise that diagnosis through a course of treatment. Dr. West testified that he relies on his own "reading" of x-rays for his specialty of cardiology, while other allopaths may rely on a radiologist to read x-rays for them or may rely on a radiology report. Diagnosis is also a part of acupuncture. Acupuncturists want to use modern laboratory tests and imaging films to reach an initial diagnosis and to test that diagnosis through a course of treatment. They want to use laboratory tests and film imaging to properly direct their own initial treatment efforts, such as using urinalysis to eliminate a urinary tract infection before treating muscles and bones for a backache. They want to determine blood clotting speeds via an INR test on persons presenting with a prescriptive history of blood-thinner use, such as Coumadin, before using acupuncture needles. They want to be able to eliminate conditions they do not feel competent to treat, i.e. cancer, and to properly refer those patients for treatment by allopaths and osteopaths. Modern laboratory test results are variously formatted, sometimes as a report or value and result. X-rays are frequently the subject of a narrative report from a radiologist. Some modern imaging results are available directly to the public, like mobile TB screenings.
The Issue The issue for consideration in this case is whether alleged statements attributed to the Board of Optometry were made by the Board, and if so, whether the statements constitute unpromulgated rules prohibited by Section 120.54(1)(a), Florida Statutes, (Supp. 1996).
Findings Of Fact The parties stipulated as a matter of fact that: The FOA is a not-for-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, to practice optometry in Florida. All FOA members are subject to and regulated by the Board of Optometry and its rules. The FOA has approximately 1,022 members. The Board of Optometry is the agency responsible for regulating the optometric practice of all FOA members. Board rules and agency statements of general applicability regulate the optometric practice of all FOA members. Individual members of the FOA, being subject to and regulated by the rules and policy of the Board of optometry, are persons whose substantial interests will be affected by the alleged agency statements and are thus substantially affected persons within the meaning of Section 120.56(1)(e), Florida Statutes (Supp. 1966). As all members of the FOA are subject to and regulated by Board rules and statements of general applicability, a substantial number of the FOA’s members would be substantially affected by the alleged statements. The objective of the FOA is to promote and protect the interests of the general public and licensed optometrists in ensuring the availability of high quality eye care at an affordable price. The FOA represents its members through the provision of education and training, and by participation in administrative proceedings, legislative activities, and court litigation. Petitioner, Brian Lloyd Weber, O.D., is an optometrist licensed and practicing in Florida. Petitioner, 29/49 Optical Inc., (29/49), is a corporation which operates optical establishments in Florida. The Board of Optometry is the state agency in Florida which licenses optometrists and regulates the practice of optometry in this state. On January 29, 1992, the Probable Cause Panel of the Board of Optometry determined there was probable cause to discipline the license of Dr. Weber because of an alleged violation of Section 463.014(1)(b), Florida Statutes, involving the corporate practice of optometry. Thereafter, on February 2, 1992, an Administrative Complaint was filed with the Board which alleged that Dr. Weber had violated the cited statute by engaging in the practice of optometry with a corporation not composed of other health care providers; by entering into a corporate arrangement which permitted an unlicensed person to practice optometry through Dr. Weber, in violation of Rule 21Q-3.008, (now Rule 59V-3.008, Florida Administrative Code); and by holding himself out to the public as available to render professional services in a manner which implies he is professionally associated with an entity which is not a licensed practitioner, also in violation of the Rule. The investigation conducted by the then Department of Professional Regulation, which led up to the action of the panel and the filing of the Administrative Complaint indicated that Dr. Weber owned 250 shares of stock in 29/49, along with an optician, Anthony Record, not licensed to provide optometry services, who also owns stock in the corporation. Allegedly, the corporation operated at five different locations, at one or more of which eye examinations were performed. It was also alleged that 29/49 had publicly advertised itself as an entity which provided complete eye examinations, and that Dr. Weber performed the eye examinations described in the advertisements. In fact, Dr. Weber is a director and officer of 29/49. He holds a 75% ownership share in the corporation. Both Dr. Weber and Mr. Record control the corporation and share the duties and profits of the operation. The firm provides optitianry services, as defined in Sections 484.002(3) and (7), Florida Statutes. Dr. Weber asserts that the operations of 29/49 are separate from the operations of his optometric practice, and claims that the Board’s direction to him to change the corporate structure of 29/49 so as to dissolve his partnership with a lay person is a continuation of what he claims is a long-standing policy of prohibiting the joint ownership of an optitianry between and optometrist and a lay person. Before a hearing was held on the Administrative Complaint, Dr. Weber and counsel for the Board entered into a stipulation which, if accepted by the Board, would have resolved the pending disciplinary action. The stipulation was presented to the Board at its July 8, 1993 meeting, at which time the Board voted to reject it and to propose a counter-stipulation. At that meeting, the Board did not enunciate any of the alleged agency statements at issue here nor did it take a position as to what Dr. Weber must do to rectify the practice situation to its satisfaction. Nonetheless, by Order dated September 9, 1993, the Board formally rejected the proposed stipulation and proposed its own stipulation. On September 12, 1996, Dr. Weber and the Agency’s counsel presented a second stipulation to the Board for settlement of the disciplinary matter, but again the Board voted to reject the stipulation and to offer its own second counter- stipulation. This counter-proposal called for Dr. Weber to change his corporate structure so that he no longer violated the statutory prohibition against practicing optometry with non- licensed individuals, and that he no longer practice with a lay person. This second counter-proposal by the Board did not enunciate any of the alleged agency statements at issue herein. This second counter-proposal was promulgated in an Order of the Board issued on October 15, 1996. Sections 463.014(1)(a)&(b), Florida Statutes, provide: No corporation, lay body, organization, or individual other than a licensed practitioner shall engage in the practice of optometry through the means of engaging the services, upon a salary, commission, or other means or inducement, of any person licensed to practice optometry in this state. Nothing in this section shall be deemed to prohibit the association of a licensed practitioner with a multidisciplinary group of licensed health care professionals, the primary objective of which is the diagnosis and treatment of the human body. No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group or lay individual. This provision shall not prohibit licensed practitioners from employing, or from forming partnership or professional associations with, licensed practitioners licensed in this state or with other licensed health care professionals, the primary objective of whom is the diagnosis and treatment of the human body. Consistent therewith, the Board of Optometry has promulgated Rule 59V-3.008, Florida Administrative Code, which implements the provisions of the statute. Rule 59V-3.008, Florida Administrative Code, restates the intent of the legislature regarding the need for licensure of practitioners of optometry, defines a “licensed practitioner”, and thereafter outlines with particularity those actions which may and those which may not be carried on by licensed optometrists in Florida. The rule is quite clear in its definitions and leaves little room for misunderstanding regarding what constitutes the practice of optometry and optometric services; those individuals who must be licensed; what professional activities a licensed practitioner may perform and what activities constitute a violation of Section 463.014,Florida Statutes. Of specific relevance to the issues herein are: (15)(b) Entering into any agreement (whether written or oral) which allows, permits or facilitates an entity which itself is not a licensed practitioner to practice optometry, to offer optometric services to the public, or to control through any means whatever any aspect of the practice of optometry. Allowing, permitting, encouraging, forbearing, or condoning any advertisement including those placed in a newspaper, magazine, brochure, flier, telephone directory, or on television or radio, which implies or suggests that the licensed practitioner is professionally associated or affiliated with an entity which itself is not a licensed practitioner. Occupying or otherwise using professional office space in any manner which does not clearly and sufficiently indicate to the public that his/her practice of optometry is independent of and not associated with an entity which itself is not a licensed practitioner. , (I), and(j), [which all refer with specificity to some action which relates to the practice of optometry by a licensed practitioner with an entity which itself is not a licensed licensed practitioner.] This rule has been challenged in the courts and determined to be a valid exercise of delegated legislative authority. Petitioner claims that pronouncements by the Board of Optometry since the passage of the relevant statute and the promulgation of the relevant rule, including a Declaratory Statement by the Board in response to a Petition therefore by Phillip R. Sidran, O.D. in 1991, found at 13 FALR 4804; and in discussion of members at various meetings of the Board’s Probable Cause Panel; all indicate that the Board has formulated a policy regarding the instant issue which is neither a statute nor a properly promulgated rule. In 1991, Dr. Sidran, a licensed optometrist, sought a declaratory statement from the Board regarding the propriety of having a licensed optician share the revenues and responsibilities deriving from the optical portion of his practice. In its Declaratory Statement, issued on October 9, 1991, the Board specifically referred to and quoted the controlling portions of the statute and the rule which it then interpreted as indicating such an arrangement was prohibited. At no time did the Board promulgate new guidelines or expand the strictures imposed by the existing statute and rule. It applied an existing statute and rule to the factual situation posed by Dr. Sidran and concluded that under the facts of that case, the existing statute and rule prohibited the proposed relationship. The subsequent discussion of that opinion at the meeting of the Board’s Probable Cause Panel, convened on January 29, 1992, to consider proposed disciplinary action against Dr. Weber for the situation described here with 20/49, again interpreted existing statute and rule but did not formulate policy. Petitioner further refers to two additional meetings of the Board of Optometry at its meetings on July 8, 1993 and September 12, 1996, at both of which the members present discussed the situation regarding Dr. Weber’s business relationship in 29/49. He claims that in both situations, the Board members made policy statements which should have been formalized through the promulgation of a rule amendment or supplement. Review of the transcripts of those meeting does not support Dr. Weber’s position, however. It is clear that in each case the Board members examined the facts presented to them, applied the existing statutory and rule provisions to those facts, and concluded that the Petitioner’s actions constituted a violation of existing law. The Board’s position vis a vis Dr. Weber’s business arrangement was made a part of the Board’s counter-proposal to the stipulation of settlement initially agreed to by Dr. Weber and the Department’s counsel. In it’s counter-stipulation, which came out of the September 12, 1996 Board meeting, the Board required Dr. Weber to “... change his corporate structure so he is no longer in violation of Section 463.014(1)(b), Florida Statues, and that [his] practice be changed so that he is no longer practicing with a lay person.”
