Findings Of Fact At all times pertinent to the issues herein, the FBM, Respondent herein, was the state agency responsible for the licensing of medical doctors in Florida and the regulation of the practice of medicine in this state. Petitioner is a medical doctor licensed by the Board to practice in Florida. The parties stipulated to the following facts, and it is so found: The Florida Board of Medicine employs no specific criteria for the recognition of practitioners as specialists for advertising purposes other than the rule. The Board of Medicine has not reviewed the activities of the ABMS as it relates to its criteria for the recognition of specialists. The FBM has never adopted written standards, policies or guidelines governing the actions of the ABMS or their separately incorporated, financially independent member boards. The ABMS has never petitioned or applied to the FBM to be considered as a recognizing agency pursuant to Rule 61F6-24.001(2)(f), formerly rule 21M-24.001(2)(f). There are no written standards relating to qualifications for "recognizing agencies" as the term is used in the above-mentioned rule. Pursuant to the rule, the FBM designated specialty boards of the ABMS, a private organization, to be recognizing agencies without establishing any written standards or guidelines for the recognition of a physician as a specialist. The ABMS does not, itself, establish specific criteria standards or requirements for the certification of particular physician specialists. The ABMS utilizes guidelines and requirements established by separately incorporated, financially independent bodies known as specialty boards. The FBM has established no written standards, policies or guidelines to which the ABMS must adhere relating to the recognition of individual practitioners as specialists. The FBM has adopted no rules relating to the regulation or recognizing agencies as defined by the rule. The FBM has not established criteria relating to the qualification of non-ABMS organizations as recognizing agencies under the rule. The FBM has no input into the standards employed by the separately incorporated boards. There are no FBM rules requiring ABMS compliance. The FBM has no mechanism for review of the actions of either the ABMS or its separately incorporated boards. Regardless of standards employed by groups which recognize physicians as specialists, if the groups are not member organizations of the ABMS, advertising specialty achievements of these groups is not permitted under Florida law. Petitioner has been licensed as a physician by the FBM since 1976. He has completed a residency program in orthopedics but has not been certified in this specialty by a member board of the ABMS. However, he identifies himself as a diplomate of the American Academy of Neurological and Orthopedic Surgeons on his letterhead on correspondence mailed from his office and on various correspondence sent to Associated Insurance Brokers Claims Management in regard to a patient. Though he claims he did not intend his letterhead identification as a board diplomate to be advertising, he acknowledged such designation enhanced his stature as an orthopedic surgeon and many insurance carriers approve higher patient charges for various specialists. Thereafter, the FBM initiated disciplinary action against Petitioner on the basis that his "advertising" was in violation of rule 61F6-24.001(2)(f), F.A.C. which prohibited false, deceptive or misleading advertising, and which implied those conditions if the advertising stated or implied the physician was formally recognized as a specialist in a medical specialization unless such recognition was by an agency recognized by the ABMS or another FBM approved agency. Petitioner subsequently filed this challenge to that rule. In the interim, a Division of Administrative Hearings Hearing Officer held a formal hearing on the disciplinary administrative Complaint and on December 20, 1993, entered a Recommended Order in which he found that Petitioner had disseminated the alleged letterhead and that constituted advertising. Since the specialty certification was by an agency not recognized by the ABMS or any other approved recognizing agency, Petitioner was in violation of the rule. The FBM was scheduled to act on the Recommended Order at its meeting to be held on February 4 - 6, 1994. Whether such action was taken, or the nature thereof are not known to the undersigned. Dr. Michael Rask, a medical doctor licensed to practice in Oregon, California, Nevada, and Arizona, and certified in orthopedic surgery by an ABMS recognized board, is Chairman of the Board of the American Academy of Neurological and Orthopedic Surgeons, (Academy). The Academy is an educational, nonprofit, eleemosynary society of physicians and surgeons across America located in Las Vegas, Nevada. It has some international members. It is accredited by the American Federation for Medical Accreditation, (Federation), of which Dr. Rask is also the Chairman. The Federation has close to 50 specialty and sub-specialty boards in its membership, 35 of which are also members of the Academy. Membership in the Academy is neither illegal nor inconsistent with the lawful practice of medicine in Florida. Petitioner, Dr. Feldman, has been a member of the Academy since 1980. The Academy has approximately 650 certified members. For certification in orthopedic surgery as a specialty, the Academy requires completion of a five year residency in that service, in addition to 3 years practice experience. Both a written and an oral examination are required. The tests are formulated by the Academy's national examination committee who are members of the Academy. Between 50 and 60 percent of the committee members are also certified by ABMS recognized specialty boards, but Dr. Rask was unable to identify the members without reference to the Academy's archives, which were not available. Failure rate on the examinations runs from 25 to 28 percent and Dr. Rask feels the tests are comparable to those administered by ABMS member boards. The Academy publishes periodic medical journals edited by Dr. Rask as a part of its educational program and certifies continuing medical education courses accepted by both Texas and California as well as, "maybe some others." The Academy specialty board criteria have been approved by the US Department of Labor which, by letter dated December 18, 1984, recognized the Academy as a "bona fide medical specialty board" and indicated its diplomates could be accorded status equivalent to that of ABMS diplomates in their respective fields. Educational organizations have also recognized the Academy including the International College of Surgeons, United States Section. Nonetheless, it has not been recognized by the ABMS nor has any other recognition board sought approval from the FBM during the period between 1980 through April 1993. Since that time, four requests, including one from the American Academy of Neurologic and Orthopedic Surgeons, have been received by the FBM but they have been held in abeyance pending FBM rulemaking activity to develop appropriate criteria for approval. 10. Rule 61F-24.001(2)(f), F.A.C., formerly 21M-24.01, F.A.C., which is challenged in this matter, was adopted by the FBM in 1980 and amended the same year. In 1988 it was again amended to require ABMS recognition of specialty boards which certified individual physicians. At the time of adoption of the rule and of the amendment thereto, the FBM members recognized the organization and purpose of the ABMS and intended it to be the recognition agency for specialty certification as it relates to physician advertising. Dr. J. Lee Dockery has been Executive Vice-president of ABMS since July, 1991. Before that time he was in the private practice of medicine in Florida and a member of the Florida Board of Medicine. The ABMS is a nonprofit private organization not governmentally regulated, incorporated in Illinois. It is made up of 24 separately incorporated and financially independent specialty boards. There are approximately 126 other self-designated boards for the purposes of certification. The ABMS maintains no files on the standards of certification of these self-designated boards. According to Dr. Dockery, these self-designating boards are not accepted by the medical profession. The independent specialty boards within the ABMS framework develop the criteria for admission to the certifying examinations they administer. They also develop the examinations, determine the examinations' validity, score them, and report the passing scores to the individual physicians, along with certificates of qualification. The ABMS, on the other hand, is the agency which approves the establishment of a specialty or sub-specialty and the independent board for that specialty establishes the criteria and requirements for certification in that specialty. The ABMS does not prepare or grade specialty examinations nor does it review the results of the tests. It also does not establish the requirements for admission to specialty examinations. This is done by the individual certifying board. There are uniform standards among the 24 member boards which relate to the completion of required educational programs under which that specialty was approved for authorization purposes. These standards may vary in terms of length of years of training required but not as to the accreditation of that training. All member specialty boards require initial specialty training for sub-specialties in addition to the training for initial certification in the specialty. Once a physician is certified based on the requirements in place at the time, he does not lose that certification if the requirements for certification are subsequently increased. None of the fee paid by physicians to specialty boards is paid to the ABMS. The ABMS does not lobby, though it has, in some cases, given testimony before state medical boards concerning proposed legislation which, it feels, would inappropriately diminish the qualifications for certification, in order to insure the health of the public is protected. There is an organization for osteopathic physicians similar to the ABMS. It is called the American Osteopathic Association. The American Academy of Neurological and Orthopedic Surgeons is not and never has been recognized by ABMS, nor has the American Federation for Medical Accreditation. Using the term "diplomate" of an organization not affiliated with the ABMS is not improper since that term signifies only the passage of an examination and not certification of expertise. Also, placement of a credential in a cirriculum vitae is different from placing it in a letterhead. The issue is how the placement is to be used. Whereas the former has limited application, the latter may be widely disseminated.
The Issue Does Petitioner, Lee County School Board (Board or District), have just cause to terminate the employment of Respondent, Stacey Landau, from her position as a school teacher for submitting fraudulent medical documentation in support of applications for accommodations and benefits under the Americans With Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)?
Findings Of Fact The Board owns and operates the public schools in Lee County, Florida. It is responsible for hiring, terminating, and overseeing all employees in the school district. The District has employed Ms. Landau since January 19, 1998. Most recently, she was assigned to work as a teacher of students with disabilities at Patriot Elementary School. Ms. Landau is an instructional employee and is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). The District employs her pursuant to a professional services contract. Ms. Landau holds a Florida educator's certificate. She is certified in elementary education, English for speakers of other languages, and exceptional student education. Ms. Landau's performance assessments have always been satisfactory or better. The District has not previously disciplined her. Ms. Landau submitted documents to the District in 2012 and 2013 to support her requests for accommodations under ADA and FMLA. The documents included three dated July 25, 2012; August 16, 2012; and June 24, 2013. During a July 24, 2013, meeting of the District ADA Committee to review Ms. Landau's most recent request, members of the committee developed concerns about the authenticity of the June 24, 2013, document. It was one of three documents submitted by Ms. Landau that bore the signature of James Weiner, M.D. The other two were dated July 25, 2012, and August 16, 2012, also purportedly signed by Dr. Weiner. Ranice Monroe, the District's director of Professional Standards and Equity, contacted Dr. Weiner's office to determine the authenticity of the signature. After Dr. Weiner's staff advised Ms. Monroe that neither the doctor nor his staff had completed or signed the form, the District had Dr. Weiner review the other two forms to determine their authenticity. Dr. Weiner is a physician who works for the Sypret Institutes, a neurosurgical practice. He also worked, during the relevant period, for Southwest Florida Neurosurgical and Rehabilitation Associates. Dr. Weiner practices anesthesia, pain management, and rehabilitative medicine. He treated Ms. Landau for several years. During all time periods relevant to this proceeding, Ms. Landau was Dr. Weiner's patient. Ms. Landau was also the patient of an ophthalmologist, Dr. Elmquist, who was treating her for her deteriorating eyesight. Information provided by his office is not relevant to the issues in this proceeding. Throughout his career, Dr. Weiner has consistently followed the same practice when completing forms, such as forms for workers' compensation patients, medical certifications for benefits, and medical certifications for accommodations. He personally completes the forms by hand, usually during the evening at home. He never signs the forms in blank. Ordinarily, Dr. Weiner's staff does not complete these types of forms for him. Dr. Weiner's office does not have and has never had a typewriter. The forms that he completes for patients are never completed by typewriter or other mechanical printing device. Dr. Weiner keeps copies of forms that he completes in his patients' files, whether he provides them to the patient, an employer, or an insurance carrier. July 25, 2012, Form Ms. Landau submitted a form titled, Medical Certification of ADA Qualifying Impairment dated July 25, 2012, in support of her request for accommodations due to a disability. The form has four sections seeking identified information and provides room for physician-identifying information and the physician's signature. "Cervical spasmodic torticollis" is handwritten in the section asking for the "[n]ature and severity of the employee's impairment." "Chronic" is handwritten in the section seeking "[p]ermanent or long term impact." The handwriting for the responses in those two sections is the handwriting of Dr. Weiner. He completed those sections of the form. Dr. Weiner also completed the section of the form providing the name and contact information for the attending physician, which is also in his handwriting. The patient name on the form is in handwriting that Dr. Weiner says is not his. Handwriting that Dr. Weiner says is not his provides the response called for by a section stating: "Major life activities substantially limited by impairment " The response states that, among other things, Ms. Landau has a limited ability to engage in daily activities with her son, grocery shop, carry heavy objects, lift items out of the car, and walk. The following section seeks "[w]ork related restrictions that necessitate a reasonable accommodation for this employee." The response, in handwriting that Dr. Weiner says is not his, states: some physical restraint, deflecting aggressive attacks, [illegible] emotional stress that see daily and extend throughout the long [illegible]. Moving furniture to put classroom back together [illegible] has [illegible]. Dr. Weiner theorized that someone modified a form that he had completed changing the responses in the two sections quoted above. The physical evidence is not consistent with the theory. The form has lines on which to provide the responses. The lines on all sections in question are complete. There is nothing indicating that text on them was erased or pasted over. The writing is on the lines with the loops of letters such as "ys" and "fs" crossing below the lines in a natural manner. There is also plausible testimony from Ms. Landau's mother, also a patient of Dr. Weiner, that on occasion, his staff has completed parts of forms that he signs. Consideration of the persuasive and credible evidence does not result in the conclusion that it is more probable than not that Ms. Landau caused sections of the July 25, 2012, form to be altered after Dr. Weiner completed it. It is probable, accepting Dr. Weiner's testimony that he never signs blank forms, that in this instance, his staff assisted him in completing the form. Comparing the copy of the July 25, 2012, Medical Certification form that Ms. Landau provided the school with the copy of the form, if any, in Dr. Weiner's records, would have demonstrated whether the form that Ms. Landau provided to the school was one that Dr. Weiner had prepared. The record does not contain evidence of a file copy. August 16, 2012, Form The responses on the Medical Certification form dated August 16, 2012, that Ms. Landau provided the District are typed or otherwise mechanically printed. Only the signatures of Dr. Weiner are in script. The responses are typed or printed on pieces of paper that have been obviously pasted or taped over the lines on the form where responses are to be written. This includes the section for the address of the provider. The response to the "[n]ature and severity of the employee's impairment" section is markedly different from that of the form dated July 25, 2012, less than a month earlier. The printed response states: "Positive cervical nodes with intra-abdominal metastases and tumor invasion." The difference between the July 25 and August 16, 2012, response to the "[p]ermanent or long term impact" section is also marked. The printed response states: "Ms. Landau will require routine blood tests and pet scans to monitor for possible future growth. Ms. Landau requires monitoring and assistance with food consumption and nutrition." The responses to the other two sections calling for narrative responses are also very different from the responses in the July 25, 2012, form. These differences, the credible and persuasive testimony of Dr. Weiner that he has never used printed responses on these sorts of forms, and the fact that the responses are plainly added to the form over the lines provided, make it more probable than not that Ms. Landau altered the form intending to deceive the Board. June 24, 2013, Form This form is an acknowledged forgery. Britton Thorne, an unemployed family friend of Ms. Landau forged the responses on the four-page form and Dr. Weiner's signature on it. Because he was unemployed and Ms. Landau needed assistance due to her vision impairment, Mr. Thorne was living with her, helping with household chores, providing transportation, and attending doctor appointments with her. Mr. Thorne testified that he grew frustrated with his inability to have the form completed by Dr. Elmquist and was unwilling to leave the form at the doctor's office for completion. Consequently, he completed the form. He signed Dr. Weiner's name because he had a prescription from Dr. Weiner available with a signature to copy. Mr. Thorne then sealed the forged form in an envelope. He drove Ms. Landau to the District office to deliver the envelope with the forged form. Mr. Thorne did not tell Ms. Landau what he had done until Dr. Weiner's office advised Ms. Landau that he was discharging her because he had learned of the forgery from the District. Mr. Thorne's demeanor while testifying and his acknowledged concern about possible criminal prosecution for his actions made his testimony credible and persuasive. There is no credible, persuasive evidence that Ms. Landau knew of Mr. Thorne's forgery at the time she submitted the form to the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding just cause to terminate the employment of Stacey Landau and dismissing her from her position as a teacher with the Lee County School District. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2014.
The Issue Whether Maria E. Tuma, a teacher in the Dade County School System, has been grossly insubordinate or has willfully neglected her duties as a teacher so that she should be dismissed from employment by the School Board of Dade County?
Findings Of Fact The Parties Petitioner, The School Board of Dade County, is the authority that operates, controls, and supervises all free public schools in the Dade County School District, "[i]n accordance with the provisions of s. (4) (b) of Article IX of the State Constitution ...". Section 230.03(2), F.S. Respondent, Maria E. Tuma has been employed by the School Board of Dade County for 24 years. She presently holds a continuing contract of employment. Since 1983, Ms. Tuma has been employed at Naranja Elementary School, Air Base Elementary School, Palm Lakes Elementary School and Ojus Elementary School. Ms. Tuma possesses many of the talents of a good teacher as evidenced by the myriad awards her art students have won and the numerous commendations for teaching art she has received over the years. But beginning in 1983 with her employment at Naranja and until and through a leave of absence commenced in 1995 while employed at Ojus, Ms. Tuma's employment history has been chronically troubled. Naranja On October 31, 1983, Ms. Maedon Bullard, Principal of Naranja Elementary School issued a notice to Ms. Tuma, who was then employed as an art teacher at the school. The notice reads, in part, A parent brought to my attention that you distributed pocket Bibles to some students this date, October 31. * * * This is in violation of School Board Policy (citations omitted). I urge you to review this policy and to adhere strictly to its contents. THIS IS THE SECOND TIME YOU HAVE BEEN GIVEN THIS NOTICE. Petitioner's Exhibit No. 3. On the same day, October 31, 1983, Mrs. Bullard gave Ms. Tuma a copy of a memorandum with attachment on the subject of "Religion in the Public Schools." Dated October 25, 1977, the memorandum is from Ralph D. Turlington, Commissioner of Education in the State of Florida. The essence of the memorandum is a warning to school districts and teachers not to create an unconstitutional preference for one religion over another. With regard to the distribution of Bibles, the memorandum states, The distribution of free Bibles to children in the public schools tends to impair the rights of children to be free from governmental action which discriminates against the free exercise of religious belief. When in practice only a particular kind of religious literature is in fact distributed, "the school board's use of the school system as a means of distribution amounts to its placing, at least in eyes of children and perhaps their parents, its stamp of approval upon [that version], thus creating an unconstitutional preference for one religion over another." (citations omitted.) Petitioner's Ex. No. 2, p. 4 and 5. The memorandum further indicated that the Commissioner would not condone any violation of the law. Air Base On May 13, 1985, while Ms. Tuma was a teacher at Air Base Elementary School, a conference-on-the-record was held. In addition to others, present were Ms. Tuma and the school's principal, Mr. Turano. The conference was called because of complaints that Ms. Tuma had made statements to a student about praying and having faith. Ms. Tuma was instructed that it is a violation of federal law, school board policy and students' civil rights to engage in religious activity in the classroom. Ms. Tuma was warned that if her religious activity in the classroom continued, she could be cited for gross insubordination and could lose her teacher certification. Ms. Tuma promised to abide by school board policies in the future. Palm Lakes: Religion in the Classroom Again On October 24, 1985, it was reported that Ms. Tuma, then an art teacher at Palm Lakes Elementary School, hit a student on the neck with a pencil and cut a lock of hair with a scissors as discipline for fighting with another student. The complaint was assigned Case No. P-2607 by the Dade County Public School's Special Investigative Unit ("SIU,") and investigated. The investigator for the Special Investigative Unit reached the conclusion that the complaint was substantiated. On October 31, 1985, a complaint conference with Ms. Tuma was conducted by Palm Lakes Principal Steven Lovelass. In addition to the complaint about striking the student with a pencil and cutting his hair, other complaints were discussed at the conference. These included that Ms. Tuma discussed the Bible during class, made references to the devil and made references to her church. On December 4, 1985, Ms. Tuma was asked by her employer to undergo a medical examination to determine her "fitness to properly carry out [her] assigned duties." Petitioner's Ex. No. 8. One week later, Ms. Tuma was evaluated by Charles C. Barton, M.D., a psychiatrist. Dr. Barton reported that Ms. Tuma was religiously preoccupied, suffered from impairment of insight and judgment and recommended intervention and possible medication. On December 23, 1985, Ms. Tuma, on her own initiative, was seen by another psychiatrist, Francisco A. Campos, M.D. She related to Dr. Campos that "she does not feel that she needs to see a psychiatrist, but feels that she has to do it in order for her to keep her job." Petitioner's Ex. No. 10. Dr. Campos found her to be preoccupied with religious material and in need of treatment directed toward improving her ego strength and coping skills. Dr. Campos' written opinion was forwarded to Dr. Patrick Gray, then the Executive Director of the School Board's Office of Professional Standards. In the meantime, on December 10, 1986, a conference-on-the-record was held with Ms. Tuma in the office of the Superintendent for the North Area of Dade County. In attendance were Ms. Tuma; her principal, Mr. Lovelass; Superintendent Marvin Weiner; Ms. Doretha Mingo, Area Director; and Supervisor for the Office of Professional Standards, Mr. James E. Monroe. The conference was held to discuss, among other problems, the report in SIU Case No. P-2607 and Ms. Tuma's "continual acts of refusal to comply with both written and verbal directives to cease and desist from instructing (teaching) your students about your religious beliefs, to include issuing Bibles and other religious materials to your students." Petitioner's Ex. No. 12. On January 28, 1986, the principal at Palm Lakes, Mr. Lovelass, forwarded his recommendation in SIU Case No. P-2607 to the Area Superintendent for the North Area of Dade County. On the bases of the substantiation of the complaint after investigation, and Ms. Tuma's statement at the conference-for- the-record that she could not comply with all of the established School Board rules because of personal and religious views, Mr. Lovelass "strongly" recommended that Ms. Tuma, "be separated from employment with the Dade County Public Schools for [among others] misconduct in office and gross insubordination." Petitioner's Ex. No. 11. On February 4, 1986, a memorandum was written to Ms. Tuma by James E. Monroe, Supervisor for the Office of Professional Standards. The memorandum summarized the conference-on-the-record held the previous December 10. Under the heading "ACTION TO BE TAKEN," Mr. Monroe wrote the following to Ms. Tuma: During the conference Mr. Weiner expressed concern relative to your continual failure to comply with administrative directives. He expressed further concern relative to its adverse impact upon your effectiveness as a classroom teacher as reported, by the principal. Mr. Weiner stated that upon receipt of the principal's recommendation for disciplinary action, he would forward his recommendation to the Superintendent of Schools. You were informed that your future employment would be determined upon a review of the facts presented in this conference. You were also informed that the recommen- dations made by the Principal and Area Super- intendent will be reviewed by the Superinten- dent of Schools; approval of the recommended discipline would necessitate action by The School Board of Dade County, Florida. You were informed of the likelihood of this recommendation being presented to the School Board at its next regularly scheduled meeting. Petitioner's Ex. No. 12. On March 7, 1986, Dr. Gray, Assistant Superintendent for the School Board's Office of Professional Standards, by letter to Ms. Tuma, directed her to cease and desist all proselytizing of religion in the classroom. She was further directed in the letter: not to advise students with regard to powers of the devil or hell; not to read from the Bible, advocate the Bible, advocate membership in her church; and, not to make disparaging remarks against any group of people on the basis of race, religion, sex or national origin. The admonishment was repeated in the letter with a warning in unmistakable terms, "I repeat, you are specifically directed to cease any of the above activities; your failure to do so will be con[si]dered to be misconduct in office and gross insubordination, and will subject you to severe disciplinary action by The School Board of Dade County, Florida." Petitioner's Ex. No. 13. On March 20, 1986, Ms. Tuma received a document under the signature of Mr. Lovelass denominated, "Record of Observed Deficiencies/Prescription for Performance Improvement." Petitioner's Ex. No. 14. The deficiencies listed in the document related to non-compliance with School Board rules and policies and provisions of the labor contract that resulted from collective bargaining conducted between the School Board and the teachers' union. Deficiencies also related to non-compliance with published school-site rules and policies consistent with School Board rules and provisions of the contract. The document also provided a prescription or directive. Part of the prescription was for Ms. Tuma to review the Code of Ethics and Principles of Education Profession found in Chapter 6B-1 of the Florida Administrative Code. Another part was to take a "School Law Course," which Ms. Tuma was allowed to take during the summer of 1986. On May 28, 1986, a conference-on-the-record was conducted by Mr. Lovelass with Ms. Tuma to discuss her prescription and employment status. Ms. Tuma was directed to complete the prescription and comply with all directives. Further, she was warned that her upcoming evaluation and recommendation as to future employment were contingent upon "continued professional efforts in remediating all ... prescriptive activities by [the fall of 1986]. In Ms. Tuma's annual evaluation for the 1985/86 school year, her overall summary rating was "unacceptable." In the category of professional responsibility, too, she was rated "unacceptable." Nonetheless, she was recommended for employment to give her the opportunity to remediate her performance deficiencies through completion of the prescription. Due to the unacceptable rating, Ms. Tuma did not receive the step increase in her salary to which she was otherwise entitled. Ultimately, Ms. Tuma was given until October, 1986 to complete the prescription. She was determined in December of 1986 to have done so successfully. In 1989, Nicholas Rinaldi became principal at Palm Lakes. He began to encounter problems with Ms. Tuma in March of 1992. These included distribution of Bibles at school, formation of a secret club of students, solicitation of church membership on school time and intimidation of students. On March 3, 1992, Mr. Rinaldi notified Ms. Tuma of a conference-on- the-record to discuss these problems as well as distribution of a religious letter to a faculty member and inappropriate language to both students and staff. Ms. Tuma responded to the notification with a "Reply of Allegations," dated March 3, 1992. While Ms. Tuma denied or offered explanations for most of the allegations, she admitted giving Bibles to students with their parent's permission. She also admitted giving the letter to a teacher. About this incident, Ms. Tuma wrote in the response that, believing the teacher to be a Christian, she took the liberty to: A. Admonish her, B. Requested prayer for her son to the Pastor and 4 deacons and an elder 'friend' of her, C. I tried to inform some of her friends about the Love of Jesus. But she got real mad at me for: A., B., and C. I asked her to forgive me after I saw that she got mad, but evidently, she hasn't (sic)! In fact one of the 3 Scriptures I wrote in the letter was 'Forgive 70 x's 7" Matthews 18:22 Petitioner's Ex. "B" attached to Deposition of Nicholas Rinaldi, Petitioner's Ex. No. 1. Ms. Tuma's written response concludes, Id. I wish to see the day when we can truly and freely exercise FREEDOM OF RELIGION in our Public Schools. After all it was the Holy Bible the first book used to teach Reading in the Public Schools of America. And we better return to the BASICS or continue to perish! On March 6, 1992, the conference was held with Ms. Tuma, Mr. Rinaldi and Angela Santos, assistant principal, present. Mr. Rinaldi opened the conference with reference to previous violations of Board policy with which Ms. Tuma had been cited. He also quoted from school board officials who had dealt with Ms. Tuma before on similar issues in order to impress upon her that the conference was not dealing with an isolated incident but rather a pattern. Again, Ms. Tuma admitted distributing Bibles and sending the letter with religious references to a faculty member. On March 10, 1992, Mr. Rinaldi issued a summary of the conference-on- the-record in a memorandum to Ms. Tuma. The memorandum recited Mr. Rinaldi's opening of the conference with a review of prior incidents including the complaint conference conducted by Mr. Lovelass in October of 1985 concerning Ms. Tuma's discussion of religion in art class. Ms. Tuma wrote back to Mr. Rinaldi on her copy of his March 10, 1992, memo, "All I said was: 'The devil came to kill, steal & destroy & God came to give us life abundantly.' John 10:10". On March 20, 1992, Mr. Rinaldi provided Ms. Tuma with additional copies of school board rules discussed at the earlier conference. On April 30, 1992, Mr. Rinaldi conducted his second conference-on-the- record with Ms. Tuma to discuss her posting of religious posters on the bulletin boards and doors of her classroom. The previous conferences-on-the-record in February, March and October of 1986, and Mr. Rinaldi's earlier conference that year were discussed with Ms. Tuma as well as a reprimand in October of 1983 for distribution of Bibles. A memorandum summarizing the conference received by Ms. Tuma on May 5, 1992, concluded: In summary, I want to inform you that you have not complied with previous admin- istrative directives to cease all mention of religion at work. Continued violations and noncompliance will result in further disciplinary actions. Exhibit "G," attached to Petitioner's Ex. No. 1. In the meantime, on April 23, 1992, Dr. Joyce Annunziata, Director of the Office Professional Standards for the School Board, notified Ms. Tuma of a conference-on-the-record to be conducted on May 7, 1992, with regard to Ms. Tuma's violations of School Board policies concerning religious references, refusal to participate in a program of assistance, fitness to perform assigned duties, and her future employment status. With regard to the refusal to participate in a program of assistance, Ms. Tuma wrote on her copy of the notice, "Mr. Rinaldi offered it & I told him TWICE I didn't need it! THIS IS FOR PSYCHOLOGIST. I don't need or want to go. I don't believe in them!" Petitioner's Ex. No. 21. The conference was conducted as scheduled. Dr. Annunziata, in conformance with the applicable labor contract that allows the board to obtain a medical evaluation when performance appears to be affected by a teacher's mental health, directed Ms. Tuma to select a physician for an evaluation. Ms. Tuma, despite the directive, refused. On the same date as the conference, May 7, 1992, Ms. Tuma was issued a memorandum from Dr. Gray, Assistant Superintendent, to serve as a written basis, as called for by the applicable labor contract, for a required medical examination. The memorandum directed Ms. Tuma to select a physician from an attached list and to communicate that choice to Dr. Annunziata. Ms. Tuma continued to refuse to select a physician to conduct the evaluation. On June 18, 1992, Mr. Rinaldi conducted a conference-on-the-record to discuss with Ms. Tuma violations of professional responsibilities, noncompliance with directives and her annual evaluation. She was issued a prescription which included reading and summarizing applicable School Board Rules. In her annual evaluation for the 1991-92 school year, Ms. Tuma was rated "unacceptable" overall and in the category of professional responsibilities. As a result, for the second time in her career, she did not receive the salary "step" increase that she was due by virtue of the length of her employment with the School Board. In August of 1992, the School Board contemplated a suspension of Ms. Tuma and initiation of dismissal proceedings against her for gross insubordination and misconduct in office. Instead, at Ms. Tuma's request, the School Board allowed her to take a leave of office without pay from August 26, 1992 through December 30 of the same year to seek medical treatment. The School Board also referred her to the Employee Assistance Program (EAP). This office provides assistance to School Board employees having problems affecting job performance. As a condition of employment, Ms. Tuma was directed to undergo the medical evaluation and participate in a counseling/therapy program monitored by EAP during the leave of absence. In order to return to work she would have to receive medical clearance. She was also advised that upon return to the work site, any recurrence of the previous problems would lead to a termination of employment. On August 11, 1992, a second "Written Basis for Required Medical Examination," was issued to Ms. Tuma by Assistant Superintendent Gray. Ms. Tuma selected Dr. Anastasio Castiello to conduct the evaluation. The evaluation was conducted; no pathology was diagnosed but counseling was recommended by Dr. Castiello. Ms. Tuma's participation in EAP proceeded without incident. Following a delay in seeing Dr. Castiello in December in order to obtain clearance to return to work, Ms. Tuma was seen by Dr. Castiello in January of 1993. Dr. Castiello continued to recommend therapy for Ms. Tuma but he cleared her to return to work. Conditions of employment were attached to Ms. Tuma's return. Her involvement with a program of therapy was to be monitored. She was required to adhere to site directives, policy, prescriptive directives and the Code of Ethics. She was warned again that recurrence of behavior with regard to religion in the classroom would be considered an act of insubordination and would incur discipline. Ms. Tuma was placed at Ojus Elementary effective January 27, 1993. Ojus Failure to Continue Therapy Ms. Tuma finished the 1992/93 school year at Ojus. In June of 1993, it was determined that she had remediated the performance deficiencies listed on her 1991/92 evaluation. On September 22, 1993, however, EAP reported that it had no information that Ms. Tuma was participating in counseling and therapy. Four months later, Dr. Annunziata informed Ms. Tuma in writing that she was not in compliance with the directive that she participate in a program of counseling and therapy. Dr. Annunziata had learned that Ms. Tuma had been to only three sessions during the entire year of 1993. These sessions were with Dr. Stephan Tchividjian. In February of 1994, Dr. Tchividjian wrote Dr. Annunziata. He stated that the last time he had seen Ms. Tuma was in March of 1993. He relayed his opinion that Ms. Tuma needed to continue in therapy for her issues with religion. Ms. Tuma was referred again to the Employee Assistance Program. On March 1, 1994, Dr. Friedman, the principal at Ojus, conducted a conference-on-the-record with Ms. Tuma to discuss noncompliance with a site directive to modify her schedule for a field day and her failure to report when called to the office. Ms. Tuma was advised that her future employment status depended on compliance with school site directives. Once again, she was warned that noncompliance would be considered misconduct in office and insubordination that would subject her to disciplinary action. Personal Communication and Gifts for the Principal Ms. Tuma was also given another directive and a reminder. She was directed not to communicate with Dr. Friedman in writing about any matter unless it was school-related. She was reminded that Dr. Friedman was not allowed to receive gifts that exceed $25 in value. The directive and reminder were given because Dr. Friedman had received from Ms. Tuma numerous gifts as well as invitations to go on vacation and attend functions with her. Dr. Friedman summarized some of the communications and gift-giving as follows: ... Ms. Tuma would write me an inordinate amount of personal letters and cards. I have files of them. She would allege that I had eyes beautiful like Jesus. Gorgeous. She would allege that she wanted to take many photographs of me, that she wanted to do a painting of me and my daughters, that I would have to pose for her to do that. She would take pictures of me, and she would stand in the hallway and look at my pictures. Now that would send off signals to other people. Now she would just shower me with all kinds of gifts. This was just something that was extreme. (Tr. 141.) On March 7, 1994, Dr. Annunziata conducted a conference-on-the-record with Ms. Tuma to discuss her noncompliance with the directive to attend counseling and therapy, her medical fitness to perform assigned duties, and her future employment status. In addition to Dr. Annunziata and Ms. Tuma, Dr. Freidman and Dr. Joseph Burke, the Director of Region II for the School Board, were present. Ms. Tuma was directed to submit to another medical evaluation, this one by Dr. Ronald Bergman. Ms. Tuma complied; the evaluation was performed. Ms. Tuma was also directed to continue her program of counseling and therapy and to keep EAP informed of compliance. From April to September of 1994, contrary to the clear directive the previous March, Ms. Tuma continued to send Dr. Freidman presents and personal communications. For example, in September, Ms. Tuma, while on vacation in Greece, sent Dr. Friedman a post card and a birthday card. The birthday card contains the following hand-written message: May God Himself enlighten you fully & direct your paths. May He be your guide Savior & Friend ... May He bless you and keep you, May He let His face shine upon you & give you Peace - I HOPE you have a VISION of HIM & you can see for your self what I said of your eyes is real ... Let us aim to look like HIM in many of His ways: His Gentle- ness, His kindness & His LOVE! & know that in spite of them and in spite of you SE HAGA POPOLI! Petitioner's Ex. No. 43. "Se haga popoli," is Greek for "I love you a lot." The card is entirely personal in nature and does not relate at all to school matters. Parental Complaints and Continued Refusal of Therapy In October, 1994, Dr. Friedman received the first in a sequence of parental and staff complaints about Ms. Tuma's professional demeanor and negative comments about staff members. Furthermore, on October 4, 1994, Dr. Gray advised Ms. Tuma that she was not in compliance with the directive that she participate in a program of counseling/therapy. She was directed to begin a program of therapy promptly. She was directed again to adhere strictly to all prior directives. On October 7, 1994, Ms. Tuma wrote to Dr. Gray, "I categorically refuse to go to any psychologist because I don't believe in them." Petitioner's Ex. No. 44. On October 18, 1994, Dr. Gray, in response to the October 7 missive, advised Ms. Tuma in writing that her employment was conditioned upon compliance with a program of medical therapy. His letter ended, "If you do not initiate confirmed compliance within ten day of receipt of this letter, your employment is subject to termination." Petitioner's Ex. No. 45. On November 28, 1994, Ms. Tuma began treatment with Dr. Doris Amaya. More Meetings and Conferences On December 8, 1994, an informal meeting was held between Dr. Friedman and Ms. Tuma concerning the taking of attendance in art class, alteration of the children's art work by Ms. Tuma, and the need to treat children's self-esteem with sensitivity. During the meeting, Ms. Tuma called Dr. Friedman a liar. The meeting was memorialized in a memorandum to Dr. Gray from Dr. Friedman, in which Dr. Friedman wrote, Ms. Tuma continues to demonstrate a pattern of flagrant disrespect toward administrative authority. Please advise ... as to what supportive action I may expect from district level as to this accelerating problem. Petitioner' Ex. No. 48. On March 1, 1995, at a parent/teacher conference concerning a grade of "C" Ms. Tuma gave to the child of the parents present, Ms. Tuma was asked to explain the grade when the child had received "A's" and "B's" in all of his other classes. The parents complained to Dr. Friedman that Ms. Tuma advised them that "all of the teachers and faculty at Ojus Elementary School were after her, were against her, and involved in some conspiratorial way. She said that my children's grades were falsely stated as good in their classes when in fact, they were really 'bad' as reflected by her grades." Petitioner's Ex. No. 54, Attachment "C." The complaint went on to relay that the conference ended with Ms. Tuma accusing one of the parents of being in conspiracy with the faculty or being "some type of liar." Id. On March 6, 1995, Dr. Freidman conducted a parent/teacher conference with Ms. Tuma and the parent who had complained about Ms. Tuma's bizarre behavior at his March 1, 1996 conference with her. During this conference, Ms. Tuma again stated that some of the teachers at the school were against her and had given false grades to students while her grade of the student in question was correct. She also called the parent a "liar." On March 8, 1995, another parent/teacher conference of Ms. Tuma's was held in Dr. Freidman's presence. This conference involved a parent different from the conference two days earlier. The complaint in this case was that Ms. Tuma had given a grade to a student based on her conduct rather than her work. It became apparent that Ms. Tuma, indeed, was lowering students' work grades for misconduct. The next day, another a parent/teacher conference was held again with Dr. Freidman present. This conference concerned yet another parent and a third child. The conference was held because the child, an avid art student, was not enjoying Ms. Tuma's class. Again, it became apparent that Ms. Tuma was lowering grades for work due to perceived misconduct. Dr. Freidman apprised Ms. Tuma that this was contrary to School Board policy. In response, Ms. Tuma wrote on a summary of the conference which she was given, "Dr. Freidman has a personal vendetta against me, because I've Blown the Whistle about her & her favourite friends there; Dr. Friedman embraced the Negativism of these parents!" She also wrote, "The councelor (sic) told me: 'Don't be surprised if she: (Friedman); set these parents up in the telephone to say certain things against you." Petitioner's Ex. No. 51. On March 27, 1995, Dr. Freidman conducted a conference-on-the-record with Ms. Tuma to discuss her professional responsibilities, performance to date, and her future employment status. Also discussed were her unprofessional conduct during parent conferences, her noncompliance with the School Board's grading policy, accusations against faculty members, and violations of the Code of Ethics and the Principles of Professional Conduct in the Education Profession. Ms. Tuma was directed to read the section of the board's rules which indicate that academic and effort grades are independent of conduct grades. The March 1995 Prescription and Outright Refusal to Perform On March 29, 1995, Ms. Tuma was issued a "Record of Observed Deficiencies" with a "Prescription for Performance Improvement" for the category of professional responsibilities. Deficiencies cited in the document included: noncompliance with the grading policies found in School Board rules; violation of Rule 6B-1.006, Florida Administrative Code, by intentionally making false statements about colleagues to parents and staff; noncompliance with the labor contract; and noncompliance with school site rules and policies. While considerably more detailed, in summary, the plan activities under the prescription required Ms. Tuma to read and familiarize herself with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; read and summarize cited board rules on grading policy; read and summarize the 1994-95 School Improvement Plan Strategy to Improve Conduct; and read a handout related to effective attitudes for teachers and develop a parent involvement plan using guidelines in the handout. Ms. Tuma did not agree that she needed to complete the prescription, felt the prescription was unfair, and refused to make any effort to perform it. On March 30, 1995, Dr. Friedman directed Ms. Tuma to meet the next day to discuss a segment of the prescription. Ms. Tuma advised the principal that she would not attend the meeting. Dr. Friedman told her non-attendance would be gross insubordination. The next day, the day before spring break, Ms. Tuma took a sick leave day. Following the break, more than a week later, Ms. Tuma met with Dr. Friedman. At the meeting, she informed Dr. Friedman that she would not perform the prescription. Dr. Friedman regarded Ms. Tuma's refusal as very serious not only because it constituted, in her view, gross insubordination, but because the incidents leading to the prescription had involved the welfare of Ms. Tuma's students. Dr. Friedman requested that Ms. Tuma be reassigned to another school or that she be dismissed as a teacher. When presented with a document showing an alternative assignment, Ms. Tuma, contrary to district-wide procedure, refused to sign it. Ms. Louise Harms, then director of OPS, conducted a conference-on-the- record with Ms. Tuma to discuss the matters which had occurred at Ojus, including her refusal to perform the prescription, and Dr. Friedman's recommendation that she be dismissed as a teacher. At the conference, Ms. Harms had available to her a fax from Ms. Tuma's attorney advising that Ms. Tuma would not perform the prescription. As the conference got underway, Ms. Tuma reiterated her refusal to follow the prescription. She maintained this position for an extended period of time during the conference which lasted two hours. Present at the conference was Dr. Joseph Burke, Personnel Director of the Dade County Public Schools, and a region director. Toward the end of the conference, Dr. Burke informed Ms. Tuma that it was his recommendation that she be dismissed given her position of refusing to perform the prescription. In response, Ms. Tuma asked what would happen if she were to follow the prescription. The memorandum summarizing the conference shows Dr. Burke's reply to have been: The gross insubordination has occurred. You refused to do the Prescription. We can't change that fact. You are now saying that you are now willing to do what you blatantly refused to do even at the onset of this conference. I have a feeling that your change of mind is directly related to the recommendation for dismissal. Petitioner's Ex. No. 58, p. 12. Ms. Tuma then asked about the possibility of taking a leave of absence. Dr. Burke responded to Ms. Tuma that she would not be able to complete the prescription while on leave and asked her what she was requesting: to remain on faculty at Ojus and perform the prescription or to take leave during which time she would not be allowed to complete it. Ms. Tuma requested leave. The Leave of Absence It was decided that Ms. Tuma's request for leave would be granted from April 17, 1995 through January 29, 1996. Ms. Tuma's evaluation for the 1994/95 school year rated her, for the third time, "unacceptable" both overall and in the category of professional responsibilities. She was not recommended for employment. In July and August of 1995, while on leave, Ms. Tuma wrote to Dr. Friedman despite the directive not to communicate with her personally. While the letters relate marginally to a school-related matter, that is, whether Dr. Friedman should help her return to the school, they are largely personal communications. For example, the July letter states, "I do wish we could go skiing in the winter, snorkel in the summer, go to Greece in the Spring or fall." Petitioner's Ex. No. 63. The letter concludes with a post-script, "Please let me know; don't be so snobbish, hard and un-forgiving: Could we meet you for lunch one day?, me & mom - we'll treat you. Maybe Olive Garden or so ... Please?, then we'll talk a little bit more. Thank you." Id. On August 16, 1995, Dr. Gray met informally with Ms. Tuma and her attorney. In the meantime, Ms. Tuma requested that her leave be terminated and she be allowed to return to Ojus on the upcoming November 6. At the meeting, Ms. Tuma advanced the date of her request to terminate leave to the start of the school year. She said that she was repentant about having refused to perform the prescription and that she would do it once her leave was over in exchange for being allowed to return to work before her leave was scheduled to be up. Ms. Tuma's requests were denied and she was advised that she would be apprised of her status upon completion of review of her records. On September 8, 1995, Ms. Tuma's 1995/96 salary was frozen per denial of a salary step increment. f. School Board's Last Attempt On November 8, 1995, Dr. Gray conducted a conference-on-the-record with Ms. Tuma to discuss her performance assessment to date, her medical fitness to perform full classroom duties, her noncompliance with directives, rules, contract provisions, and her future employment status. At the November 8, 1995 meeting, in a final attempt to save Ms. Tuma her job, Dr. Gray gave her two options: to work as an adult education teacher or to be redirected to a paraprofessional position. Ms. Tuma rejected both options. Suspension and Dismissal Proceedings Having exhausted all avenues of assistance to Ms. Tuma, the School Board, on January 24, 1996, suspended her and initiated these dismissal proceedings for gross insubordination and willful neglect of duties.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the School Board of Dade County, Florida, issue a Final Order sustaining the suspension without pay of Maria E. Tuma and dismissing her as an employee of the School Board of Dade County, Florida, without back pay, for gross insubordination and willful neglect of duties, pursuant to Section 231.36(4), Florida Statutes. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0820 Petitioner's Proposed Findings of Fact Paragraphs 1-17, 19-62, insofar as material, are accepted. Paragraph 18 is rejected as irrelevant. It is not clear from the evidence that this event was part of Ms. Tuma's pattern of insubordination. Respondent's Proposed Findings of Fact Paragraph 1 is accepted except that Ms. Tuma's insubordination had an effect on her competency. Paragraph 2 is accepted. Paragraph 3 is rejected for containing conclusions of law. Paragraph 4 is rejected with the exception of the last two sentences which are accepted. COPIES FURNISHED: Octavio J. Visiedo Superintendent Dade County School Board 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez, Esquire 250 Bird Road, Suite 302 Coral Gables, Florida 33146 Ms. Maria E. Tuma 11320 Northwest 58th Place Hialeah, Florida 33012
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated August 7, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency authorized to regulate and discipline licensees pursuant to Chapters 455 and 473, Florida Statutes. The Respondent is a licensed certified public accountant, license number AC 3214 (election of rights submitted by Respondent). In connection with an investigation of another licensee (not at issue herein), the Respondent submitted to the Department a financial report that Respondent had performed for the entity identified as Moreil Interiors, Inc. (Moreil). That document (Department's exhibit 1) consisted of four pages and represented financial information related to Moreil for a 6 month period ending December 31, 1984. Certified public accounts are required to utilize specific guidelines in the performance of accounting services. Those guidelines are codified in the Statements on standards for Accounting and Review Services (SSARS). The failure to abide by the SSARS guidelines constitutes performance below acceptable accounting standards. The financial report identified in paragraph 3 failed to comply with the SSARS in at least four material ways. The level of service indicated by the Respondent's report is not accepted practice for certified public accountants and has been rejected by the American Institute of Certified Public Accountants. The type and number of the deficiencies in that report constitute negligence on Respondent's part and establish a failure to exercise professional competence and due professional care in the performance of accounting services.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Accountancy enter a final order requiring the Respondent to complete 24 hours of continuing education regarding compliance with the SSARS guidelines, and placing the Respondent on probation with his work to be reviewed, at his expense, by a consultant or certified public accountant approved by the Board, for a period of one year following completion of the continuing education. DONE and ORDERED this 19th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1990. COPIES FURNISHED: Tobi Pam Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Frank Berman P.O. Box 14156 North Palm Beach, Florida 33408 Martha Willis Executive Director Board of Accountancy Suite 16 4001 Northwest 43rd Street Gainesville, Florida 32606 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue to be determined is whether Florida Administrative Code Rule 64B13-4.001 (the Rule), adopted by the Florida Board of Optometry (the Board), is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Nicole Yontz, O.D. (Dr. Yontz), is a graduate of the Inter-American University of Puerto Rico, School of Optometry. Dr. Yontz passed all parts of the NBEO exam in 2007, and has practiced as an optometrist in Nevada for approximately eight years. Petitioner Tammy Johnson, O.D. (Dr. Johnson), graduated from Indiana University and passed all parts of the NBEO exam in 1998. She practiced in Michigan from 1998 through 2003, and in Indiana from 2003 through 2016. The Board is the state agency charged with the regulation of the practice of optometry in the State of Florida pursuant to chapter 463, Florida Statutes. Intervenor, Florida Optometric Association (FOA), is a non-profit organization of approximately 3,300 members. Approximately 1,700 Florida-licensed optometrists are members of FOA, and the parties do not dispute that FOA has standing to participate in this proceeding. Petitioners each desire to practice optometry in the State of Florida. For purposes of this rule challenge, Petitioners are “substantially affected” by the challenged rule, as required by section 120.56(1)(a). Each of the Petitioners sought a waiver from the requirements of the Rule in order to proceed through the licensure process. The Board considered Dr. Johnson’s Petition for Waiver on February 26, 2016, and despite its counsel’s recommendation to approve the request for waiver, the Board denied the Petition. It issued a Notice of Petition for Waiver and Variance to that effect on March 14, 2016, stating that Dr. Johnson had failed to establish that the purpose of the Rule would be achieved by other means; that application of the Rule would cause a substantial hardship; or that requiring adherence to the Rule would violate the principles of fairness. The Board considered Dr. Yontz’s Petition for Waiver on August 19, 2016, and denied it as well. A Notice of Petition for Waiver and Variance was filed to that effect on September 16, 2016, citing the same reasons that were included in the Notice addressing Dr. Johnson’s Petition for Waiver, which are the statutory criteria for consideration of a waiver or variance pursuant to section 120.542. The position taken by the Board is consistent with its resolution of a number of other petitions for variance or waiver of the Rule considered by the Board. In order to be eligible to practice optometry in Florida, under the terms of the Rule as it now exists, both Petitioners would be required to retake the NBEO exam. The rule at issue in this proceeding is Florida Administrative Code Rule 64B13-4.001, quoted below, with the language that is the subject of the challenge underlined: The licensure examination authorized in Section 463.006(2), F.S., shall consist of the following parts: Part I – the Applied Basic Science (ABS) portion of the examination developed by the National Board of Examiners in Optometry (NBEO); Part II – the Patient Assessment and Management (PAM) portion of the examination developed by the NBEO which includes an embedded Treatment and Management of Ocular Disease (TMOD) examination. An applicant for licensure in Florida must obtain a passing score on the TMOD section of the examination; Part III – the Clinical Skills (CSE) portion of the examination developed by the NBEO. In addition to an overall passing score on the CSE portion, an applicant for licensure in Florida must obtain a score of 75 percent (75%) or better on each of the Biomicroscopy, Binocular Indirect Ophthalmoscopy, and Dilated Biomicroscopy and Non-Contact Fundus Lens Evaluation skills individually; and Part IV – a written examination on applicable Florida laws and rules governing the practice of optometry developed yearly by Florida Board of Optomety approved consultants in conjunction with NBEO, and administered by NBEO. The Board shall review and approve the content of the laws and rules examination annually. An applicant for licensure must achieve a passing score on all four parts of the licensure examination. For Part III, an applicant must receive an overall passing score on the CSE, as well as the required score of 75 percent (75%) or better on each of the three (3) individually identified skills, on the same test attempt. A score of 84 percent (84%) or better must be obtained in order to achieve a passing score on Part IV of the licensure examination. Passing scores for Part I, Part II, and Part III of the licensure examination are established by the NBEO. Given constant advances in research, developing knowledge in the area of basic and clinical science as applied to the diagnosis, correction, remedy, and relief of insufficiencies or abnormal conditions of the human eyes and their appendages, variances the scope of optometric practice among the states, and the importance of fundamental clinical skills to patient health and safety, passing scores on Part I, Part II, Part III and Part IV of the licensure examination must be obtained within the seven (7) year period immediately preceding licensure application. Certification Examination. A licensee applying for certification must obtain a passing score on either the TMOD examination embedded in the Patient Assessment and Management portion of the examination developed by the NBEO or a passing score on the stand alone TMOD examination developed by the NBEO. The Rule requires that an applicant for licensure must achieve passing scores on Parts I, II, III, and IV of the licensure examination within the seven-year period immediately preceding licensure application. The seven-year requirement is referred to as the “look-back period.” Petitioners are not challenging the authority of the Board to require passage of Part IV of the examination. The challenge is directed to the authority of the Board to require the look-back period. The Rule has contained a look-back period since at least 1979. It has been, at various times, eight years, seven years, and five years. The Licensure and Examination Process for Optometry in Florida There is no statutory provision in chapter 463 that authorizes licensure of optometrists who are licensed in other states to obtain a license in Florida by endorsement. In order for a person to practice optometry in Florida, he or she must apply for licensure under the process required by section 463.006. This provision expressly requires those who desire to become licensed in Florida “shall apply to the department to take the licensure and certification examinations.” (emphasis added). Applicants must be at least 18 years of age, graduate from an accredited school or college of optometry approved by rule of the Board, be of good moral character, have completed at least 110 hours of transcript-quality course work and clinical training in general and ocular pharmacology under certain delineated requirements, and have completed at least one year of supervised experience. With respect to the examination, section 463.006 provides that the Board may by rule substitute a national examination, and may by rule offer a practical examination in addition to the written examination. Section 463.006(3) provides that “[e]ach applicant who successfully passes the examination and otherwise meets the requirements of this chapter is entitled to be licensed as a practitioner.” State or National Examination Section 463.006 allows the Board to adopt a rule that provides for the substitution of a national examination as all or part of the examination. Section 456.017(1)(c)4., Florida Statutes, which is included in the provision that governs the Department of Health’s responsibilities with respect to examinations, specifies that it is the intent of the Legislature to reduce the costs associated with state examinations and to encourage the use of national examinations whenever possible. Consistent with this legislative directive, the Department of Health has certified a national examination, and no longer supports a state-developed practical examination for optometry. The Board has designated Parts I, II, and III of the National Board Examinations offered by the NBEO as three of the four parts of the Florida licensure examination. Part IV is an examination on Florida laws and rules and also is offered by NBEO, but is only taken by applicants for licensure in Florida. The Rule was amended, effective February 27, 2014, to establish this change in examinations. The NBEO was established in 1951 and is an independent, non-governmental, non-profit organization that administers the standard National Board Examinations, which are designed to test minimum competency of students. Since August 2011, students taking the clinical portion of the exam (Part III) take the examination in a controlled environment in North Carolina at NBEO’s testing location, as opposed to various locations across the country. Students may begin taking the examinations in their third or fourth year of optometry school. The NBEO national examinations are not really “geared” for individuals who are already practicing optometry. Parts I, II, and III of the National Board Examinations offered by the NBEO are a “national examination” as that term is used in section 456.017(1). Because of the way the NBEO Part III is administered in North Carolina, the Department has, in effect, delegated both the development and the administration of the examination to NBEO. Although the Board required passage of a Florida- specific practical examination prior to 2014, neither the Board nor the Department of Health currently offers a State of Florida specific practical examination. The Statutory Authority for the Rule The Rule cites as its rulemaking authority sections 456.017(1), 463.005, and 463.006(2). The Rule cites as its law implemented sections 456.017(1) and 463.006(2). Section 456.017(1) provides: (1)(a) The department shall provide, contract, or approve services for the development, preparation, administration, scoring, score reporting, and evaluation of all examinations, . . . . For each examination developed by the department or contracted vendor, to the extent not otherwise specified by statute, the board, or the department when there is no board, shall by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade. . . . If a practical examination is deemed to be necessary, the rules shall specify the criteria by which examiners are to be selected, the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade. When a mandatory standardization exercise for a practical examination is required by law, the board, or the department when there is no board, may conduct such exercise. . . . The board, or the department when there is no board, shall approve by rule the use of one or more national examinations that the department has certified as meeting requirements of national examinations and generally accepted testing standards pursuant to department rules. Providers of examinations seeking certification shall pay the actual costs incurred by the department in making a determination regarding the certification. The name and number of a candidate may be provided to a national contractor for the limited purpose of preparing the grade tape and information to be returned to the board or department; or, to the extent otherwise specified by rule, the candidate may apply directly to the vendor of the national examination and supply test score information to the department. The department may delegate to the board the duty to provide and administer the examination. Any national examination approved by a board, or the department when there is no board, prior to October 1, 1997, is deemed certified under this paragraph. Neither the board nor the department may administer a state-developed written examination if a national examination has been certified by the department. The examination may be administered electronically if adequate security measures are used, as determined by rule of the department. The board, or the department when there is no board, may administer a state-developed practical or clinical examination, as required by the applicable practice act, if all costs of development, purchase, validation, administration, review, and defense are paid by the examination candidate prior to the administration of the examination. If a national practical or clinical examination is available and certified by the department pursuant to this section, the board, or the department when there is no board, may administer the national examination. It is the intent of the Legislature to reduce the costs associated with state examinations and to encourage the use of national examinations whenever possible. Each board, or the department when there is no board, shall adopt rules regarding the security and monitoring of examinations. The department shall implement those rules adopted by the respective boards. In order to maintain the security of examinations, the department may employ the procedures set forth in s. 456.065 to seek fines and injunctive relief against an examinee who violates the provisions of s. 456.018 or the rules adopted pursuant to this paragraph. . . . * * * (f) The department may adopt rules necessary to administer this subsection. (emphasis added). Section 463.005 provides in pertinent part: The Board of Optometry has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. Such rules shall include, but not be limited to, rules relating to: Standards of practice, including but not limited to, those provided for in s. 463.0135. Minimum equipment which a licensed practitioner shall at all times possess to engage in the practice of optometry. Minimum procedures which shall constitute a visual examination. Procedures for the safekeeping and transfer of prescription files or case records upon the discontinuation of practice. Supervision of supportive personnel. Courses and procedures for continuing education. Administration and prescription of ocular pharmaceutical agents. Section 463.006(2) provides: The examination shall consist of the appropriate subjects, including applicable state law and rules and general and ocular pharmacology with emphasis on the use and side effects of ocular pharmaceutical agents. The board may by rule substitute a national examination as part or all of the examination and may by rule offer a practical examination in addition to the written examination. There is nothing in any of these statutory provisions that expressly authorizes the Board to specify a time frame for taking the national examination prior to the time an application for licensure is filed. The Rule cites as a rationale for requiring the look- back period: constant advances in research; developing knowledge in the area of basic and clinical science as applied to the diagnosis, correction, remedy, and relief of insufficiencies or abnormal conditions of the human eyes and their appendages; variances in the scope of optometric practice among the states; and the importance of fundamental clinical skills to patient health and safety. In addition to the bases enunciated in the Rule, the purpose of the Rule is to ensure applicants are minimally competent to practice optometry with reasonable skill and safety. When the Board has been faced with petitions for variance and waiver seeking a waiver of the Rule’s look-back provision, Board members have consistently focused on their desire to protect the health, safety, and welfare of the public by ensuring that optometrists in Florida are well qualified and up to date in their skills. Since 2007, the Board has held multiple workshops and public hearings regarding the Rule, with the most recent occurring on May 13, 2016. The Rule is currently open for development, although the Board has not yet proposed any additional language. The Rule’s adoption history indicates that it has been amended multiple times over the years, most recently in 1999, 2002, 2004, 2010, 2011, 2012, 2014, and 2015. During the review of these amendments, the evidence presented did not indicate that the Joint Administrative Procedures Committee staff ever questioned the look-back language. While this information is evidence that can be considered in determining the validity of the look-back period, it is not dispositive. Two different attorneys serving as Board counsel have, by contrast, advised the Board that they did not believe that the Board has statutory authority for the look-back period contained in the Rule. Moreover, Terrance Nuberhaus, a former Board member now serving on the Board’s probable cause panel, could not identify any statute expressly providing authority for the Board to limit the acceptability of NBEO scores to any particular time frame. Equivalency Standards for the NBEO Exam NBEO exams have been revised over time. A copy of the NBEO equivalency statement is identified as Petitioners’ Exhibit 17, and Petitioners and Respondent agreed that this statement is considered an “adjunct to the deposition of Dr. Jack Terry.” The NBEO takes into account the revisions when determining whether a revised examination is equivalent to prior versions of the NBEO exams. The Board has recognized that the Part I and Part II National Board Examinations administered in 1991 are comparable to the Part I and Part II National Board Examinations administered today. The NBEO has developed equivalency statements which apply to any candidate who is attempting to complete the current three-part sequence of the NBEO exam, but who began the sequence under an earlier format. The purpose of equivalency is to keep the examinations equivalent, regardless of when the test was administered, and to reduce confusion and create a level of consistency, so that people can easily interpret and compare the results. The fact that NBEO has developed equivalency statements does not mean that the content of the examinations has remained static over time. Dr. Jack Terry, the Executive Director of NBEO, also testified that the skills evaluated in Part III of the test have changed over the years: Q. As to Part III, basically since 1993, am I correct that the main thing that has been added is a section dealing with injections? A. No. Since 1993, there have been many changes to the skills that have been added and some that have been taken away. I don’t have a full comprehensive list of those changes and when they occurred. For example, binocular ophthalmoscopy, I think, was added at some later point. Blood pressure measurements, I think, were added. A fundus contact lens evaluation was added. Punctal plugs and punctal plug insertion removal was added later on. Injections, as you indicated, was added later on. So there have been – and the purpose of the Part III Committee and Council is to look every year at the skills, currently there are 20 different skills, and to make sure that the Committee, the groups that give the National Board input are still comfortable with the 20 skills. Should it be increased. Should it be decreased. A few years ago, visual fields, confrontational visual fields were added. Just a small change. A few years ago saccadic eye movements were added to the exam. So there have been changes to the exam. It’s hard for me to say which one has been the biggest or the most or most profound. I think the changes have all been important. Q. But as far as the changes with additions or deletions, that has all been taken into account when the NBEO has determined its equivalency? * * * A. Yes, that’s all been taken into consideration in terms of the equivalence.
The Issue The issues to be resolved in this proceeding concern whether proposed rules 59O-2, 59O-3, 59O-5, 59O-7, 59O-9 and 59O-10, Florida Administrative Code, which revise and replace existing provisions of the same rules, are invalid exercises of delegated legislative authority to the above-named agency, in light of the standards set forth in Section 120.52(8), Florida Statutes.
Findings Of Fact This case arose when the Respondent, BOARD OF CLINICAL LABORATORY PERSONNEL (BOARD), published notice of its intent to adopt certain amendments to the rules described above. Publication was on August 23, 1996. The general effect of the proposed rules is to change definitions related to the practice of clinical laboratory technology and technicianry; to change certain provisions dealing with the qualifications; testing, and licensure of technicians and to provide certain national examinations for licensure for directors of clinical laboratories. The Board was created by the legislature in 1992, to regulate clinical laboratory personnel. These authorities and duties are set forth in Part IV of Chapter 483, Florida Statutes. The Board’s purpose is to protect the safety and welfare of the public from the hazards of improper performance by clinical laboratory personnel. To this end the Board is required by law to prescribe minimal qualifications for clinical laboratory personnel. Clinical laboratory personnel are persons who perform clinical laboratory examinations on specimens taken from the human body for the purpose of diagnoses, management or treatment of a medical condition. The field of clinical laboratory science is divided into two (2) areas: anatomical, which includes the disciplines of histology (tissues), cytology (cells); and clinical. The largest group of licensees fall under the clinical area and are licensed under five (5) specialties: Microbiology, Serolgy/Immunology, Chemistry, Hematology, and Immunohematology. The five (5) disciplines are collectively known as general laboratory practice. Florida licenses four (4) categories of clinical laboratory personnel: Director, Supervisor, Technologist, and Technician. Clinical laboratories are subject to Federal and State Regulation. Part I of Chapter 483, Florida Statutes, is the “Florida Clinical Laboratory Law”. It provides for the qualification and licensing of clinical laboratories. Regulations adopted pursuant to the Federal Clinical Laboratory Improvement Amendments of 1988 (CLIA), established the standards that all laboratories must meet to be certified to perform testing on human specimens. The regulations under CLIA provide for the certification and registration of laboratories, but not of the personnel employed therein. Persons working in clinical laboratories are subject to the requirements and regulations imposed under Part IV of Chapter 483, Florida Statutes. In addition, the qualifications of personnel working in clinical laboratories are also regulated indirectly through federal law. Although testing personnel are not licensed pursuant to CLIA, one of the standards which must be met by laboratories licensed under CLIA is the employment of testing personnel qualified pursuant to specifically enumerated training and educational requirements. In addition to setting laboratory standards by discipline, CLIA also sets standards by three (3) types of testing complexity: Waived, Moderate and High Complexity. Waived Tests are those for which there are no personnel standards or laboratory regulations, other than the requirement of a “Certificate of Waiver.” High Complexity Tests, as indicated by their name, are more difficult to perform and require more intervention on the part of the analysts. The FLORIDA COALITION OF PROFESSIONAL LABORATORY ORGANIZATIONS, INC., is a not-for-profit corporation which has twelve (12) member organizations, eleven (11) of which are joined in this proceeding. The coalition and its member organizations are independent organizations which represent the licensed laboratory personnel who are licensed by the Board. The coalition was created in 1992, about the same time that the Board was created by the Florida Legislature. The coalition was organized for three (3) main reasons: to educate the members of the profession, monitor legislative activity that would affect the members and their ability to practice their profession, and to unify the “laboratory voice” within the state. The coalition has regularly monitored all activities of the Board and has intervened in support of Board rules under challenge in the past. The coalition, its individual organizations, and the licensed laboratory personnel who are members of these organizations are affected by the proposed rules because the changes to the rules in the training, licensure qualifications, licensure examination, licensure by specialty and scope of practice of medical technicians will affect not only the currently licensed medical technicians, but also the medical technologists and the laboratory supervisors and directors who work with and supervise the medical technicians. It has been shown that these proposed changes will allow medical technicians to be licensed under different and lower standards than is required in the current rules and will allow a broadening of the scope of practice of the licensed medical technicians, thus directly and adversely affecting the practice of the profession and the currently licensed professionals. The other proposed and challenged changes to the rules similarly affect the members of the coalition and Petitioner organizations. The Petitioners have demonstrated that the coalition and its member organizations represent the interests of its individual members, the licensed laboratory personnel and that a substantial number of its members will be affected by the proposed rules. The rules are thus within the scope of interests for which the Petitioner coalition and its member organizations were organized. The Board was newly created in late 1992 and inherited a set of rules for licensure and discipline of laboratory personnel from the Department of Health and Rehabilitative Services. The Board undertook a systematic review of these rules in order to make them current with the changed and modern practice of clinical laboratory science. The Board also considered the changes to federal law and regulations regarding the practice of clinical laboratory science, especially the law and regulations known as CLIA. All laboratories in the country must comply with conditions imposed under CLIA and the CLIA amendment provides detailed and specific conditions under which all laboratories must operate in order to perform laboratory testing. CLIA does not require laboratory personnel to be licensed but state regulations require licensure, as in Florida, and CLIA requires that individuals performing moderate and highly complex tests “possess a current license issued by the state in which the laboratory is located.” (See 42 CFR, Sections 493, Subpart M). Although the Agency for Health Care Administration, which licenses and inspects laboratories, is statutorily mandated to assure that the laboratories meet the CLIA requirements (See Sections 483.821, 483.035, 483.051(a), 483.172(4), Florida Statutes), the Board of Clinical Laboratory Personnel is not similarly mandated by the legislature. The CLIA provisions are not to be exceeded by the Board when it adopts rules for the licensure, education and training of personnel in “exclusive use” laboratories. These personnel and laboratories are not at issue in the present case. The Board’s representative testified that compliance with the CLIA regulations was an overall goal for the state of Florida because if the state regulation of laboratories meets or exceeds the CLIA requirements, then the state can obtain an exemption from the federal requirements, thus eliminating a dual set of regulations. It is clear, however, that the legislature has not mandated that the Respondent Board incorporate the CLIA regulations into the Board’s rules. The proposed rules at issue substantially modify the existing laboratory personnel rules, the essential change being the elimination of licensure of medical technicians by specialty, with the end result of the proposed changes being the licensure of laboratory technicians as “generalists”. The following proposed rules effect these changes: Rule 59O-5.004, Qualifications for licensure as a technician, is substantially rewritten so that an individual must successfully complete a Board-approved technician level training program of one year of integrated study in order to become licensed as a general laboratory technician.(Proposed rule 59O-3.001(l)) The current rule, 59O-5004(2)(b), allows an individual to complete a training program which consists of 400 clock hours per specialty, and a course in general laboratory practice. The specialties are: microbiology, serology/Immunology, clinical chemistry, hematology, blood banking, immunohematology, cytology, and histology. Proposed Rule 59O-5004(3)(a), creates a general licensure category for technicians encompassing the five specialties. The proposed rules further would effect a change from a specialty licensure of technicians to a general technician licensure by changing the examination requirements of Rule 59O- 7.001(12), so that a generalist examination covering microbiology, serology/immunology, clinical chemistry, hematology, and immunohematology is given, rather than the current two-part examination: Part A, consisting of one technician level specialty examination in each of the five above-cited areas, and Part B, consisting of an exam in general laboratory practice. (Current rule 59O-77.001(4), F.A.C.). The proposed rule changes also create a route for qualification to sit for the generalist technician exam by allowing various periods of practical experience, depending on an individual’s education level, rather than requiring any formal training in laboratory procedures. (Proposed rule 59O-5.0904(d)) The Proposed rules add a definition of “general clinical laboratory experience” in proposed rule 59O-2.003(18), which has no counterpart provision in the current rules. The proposed changes to the current rules also have the net effect of changing and broadening the scope of practice of medical technicians by changing the definition of “direct supervision,” removing the current language of “reviews results prior to being made available for patient care,” and adding the language “is responsible for the oversight of testing and reporting of results” (Proposed rule 59O-2.002(8)), and making changes in rule 59O-2.002(4) (the definition of technician). These changes, together with proposed changes to rule 59O- 10.005(2)(a), allow technicians to practice in their category of licensure under the proposed new definition of “direct supervision”. These changes remove the requirement that the work of technicians be reviewed by a technologist, supervisor, or director before or after the results are released to the public. The Board has testified that the proposed revisions in the technician rules (qualifications [59O-5], training [59O-3] and scope of practice [59O-10]) were made in order to align the Board’s rules with federal regulations (CLIA 88), yet federal regulations mandate review of results and specifically require that certain results be reviewed by supervisory personnel within twenty-four (24) hours. The existing rules provide for similar requirements, consistent with these federal standards, whereas the proposed rules eliminate these requirements, in contradiction to the stated reason for proposing the changes in the rules (i.e., to meet federal standards). Proposed changes to rule 59O-5.004(3)(6), set up qualifications for two (2) types of technicians, “general” and those who perform “highly complex” tests. The current rule provides for the licensure of one type of technician only. Proposed rule 59O-3.001(1) provides a requirement for a technician training program of one (1) year of integrated study, including the five (5) specialty areas making up the “generalist” category of technician. The current rule requires 400 clock hours in each of the five (5) specialty areas that make up the generalist technician program. An individual can no longer take training in only one (1) or more (up to five (5)) of the individual specialty areas. (Rule 59O-3.003(3), Florida Administrative Code). Proposed rule changes to 59O-3.002(2) are also made to allow non-licensed personnel to teach clinical laboratory science, whereas the current rule requires a person to be licensed as supervisor or technologist and provides that the instructor may teach only in a specialty area in which he or she is currently licensed. (Rule 59O-3.002(2), Florida Administrative Code). Proposed changes to rule 59O-3.003 allow the Board to generally adopt without review, and by reference, curriculum standards of the Department of Education for clinical laboratory training programs for laboratory technicians. The current rule requires the Board to actually review and approve the Department of Education standards in relationship to the requirements in the current Board rule. (Rule 59O-3.003(2), Florida Administrative Code). Challenge is also made to proposed changes to rule 59O- 3.003(4)(e)i., which removes the current requirement that a licensed technologist must have received the training required of a technician. (Rule 59O-3.003(3)). Proposed rule changes regarding the examinations for laboratory directors would require candidates for the director license, to take and pass nationally certified examinations (Proposed rule 59O-7.001(1)), rather than the Board and agency-created examinations, as allowed in current rule 59O- 7.001(1), Florida Administrative Code. The proposed rules were published in the August 23, 1996, Florida Administrative Weekly. The Board offered no testimony or evidence that any change in circumstances had occurred with respect to the examination and licensure of medical technicians in effect nor reasons why there should be a general examination and licensure, rather than specialty examination and licensure. Neither did the agency offer any change in circumstances that had occurred with respect to the other challenged proposed changes in the current rules. The overriding argument of the Board was that the new Board had considered the recently promulgated rules and had decided to make changes based on a change in the philosophy of the new Board. No articulation was made of this change in philosophy or the basis for it. The Board offered, at hearing, several reasons for the proposed changes to the examination and licensure of medical technicians. First the Board argued that the changes were philosophical, that new Board members had been appointed to the Board, and that this Board could not be bound by a prior Board. The Board also offered that the long-standing practice had been to examine and license technicians as generalists, and that the fairly recent changes had been “controversial.” Further, this recent change had been challenged by the Agency for Health Care Administration (AHCA) because of the increased costs to applicants of taking each of the specialty exams and concern over the implementation date of the new exams. It was shown that in October 1995, as a result of a challenge, the Board had agreed to re-visit this issue in the future. However, it was also shown that the agency had withdrawn its challenge and that the current rule had been promulgated and published in the Florida Administrative Weekly in December 1995. The challengers presented several reasons why the proposed technician exams and licensure changes, as well as the other proposed changes are invalid. First, the process under which these rules were proposed and adopted did not comply with the applicable rule-making procedures of the Administrative Procedures Act, especially in contrast to the past procedures which had been used by the previous Board. The previous Board had established a pattern of rule-making procedures which gave notice to the public, accepted public input and provided open, full debate and consideration before rules were adopted. Second, the current rules, including those regarding licensure and examination of medical technicians, had only recently been adopted after full consideration of the industry practices and needs and the pros and cons of general versus specialty exams and licensure and after a systematic review of the state of the profession. The challengers presented evidence that the prior Board, in establishing the specialty exam for technicians, had evidence before it from examination specialists that the former 100-question, generalist technician exam was a poor test of the candidates’ knowledge of the practice. A candidate could fail three (3) of the five (5) specialty areas which were tested on the general exam and still pass the exam and become licensed as a technician and could therefore practice in all five (5) areas. Further, the chair of the prior Board testified to the detailed information the various considerations and debate that the prior Board had undertaken in order to reach the decision to change to a specialty exam and licensure by specialty for technicians. The evidence shows that these rule changes began when the Board met in March 1996. At that time a long-term member of the Board became the new chair of the Board and two (2) new Board members were present at their first full Board meeting at that time. The Board received a report from the recently created and appointed credentials committee. That committee recommended that the examination for medical technicians be changed from the two- part specialty exam, (one portion testing general laboratory principles and the other testing individuals in up to six (6) specialties) to a general exam covering all of the specialty areas. The evidence shows that with very little discussion and no other information before them, the Board voted to change the exam rule and instructed their attorney to prepare the necessary rule language for them. For the next full meeting of the Board in June 1996, the Board received, reviewed and voted on a wholesale package of proposed rule changes covering many rules, including the changes to the examination and licensure qualifications and scope of practice for technicians here under challenge. The Board did not complete consideration of these rule changes and continued their discussions and voting at a July conference-call meeting. The Petitioners maintain that the vote taken to change the technician exam rule at the March 1996 Board meeting was not properly noticed, because the agenda that was published for the Board meeting did not contain any notice that a rule change was being proposed and no indication that action, a vote, would be taken to change a rule. Promulgation of such a notice was the standard operating procedure for agendas of the previous Board meetings. The Board representatives who testified alleged that the agenda for the March meeting was submitted in a timely fashion to comply with Board rule 59O-1.008(4), Florida Administrative Code, as well as Section 120.53(1)(b), Florida Statutes. The coalition’s witness testifying about this matter, however, never received the amended agenda; and she had been on the mailing list to receive such agendas, based upon previous activity with regard to the Board’s official business, including rule-making. The amended agenda added language to the effect that the credentials committee was scheduled to make a recommendation for the technician exam rule change (See item No.6, agenda of March 1996 Board Meeting, Respondent’s composite Exhibit No.1). The coalition chair testified that she had received and read the original agenda, but did not receive any notice that the rule change recommendation was to be made, or that a vote would be taken to change the rule. Previous to this time notice of possible rule changes had been provided to the public via the Board’s agendas. The coalition had regularly monitored proposed rule changes by obtaining and reviewing the agendas and, after considering the proposed changes, gave input to the Board about the proposed rule changes. Section 120.53(1)(d), Florida Statutes, requires that agency rules concerning scheduling of meetings and workshops shall provide: An agenda shall be prepared by the agency in time to insure that a copy of the agenda be received at least seven (7) days before the event by any person in the state who requests a copy and pays a reasonable cost of the copy. The agenda shall contain items to be considered in the order of presentation. After the agenda has been made available, change shall be only for good cause, as determined by the person designated to preside, and state it in the record. Notification of such change shall be at the earliest practicable time. One of the organizational rules of the Board-Rule 59O-1.008(4), Florida Administrative Code, contains essentially the same language as Section 120.53(1). It appears that the immediate agenda was not made available to the public seven (7) days prior to the March 1996 Board meeting. Further, no announcement of good cause for the change to the agenda was made by the chair of the Board “at the earliest practicable time,” or at any other time. The order of items on the March agenda was also re- arranged without prior notice to the public, so that when a vote was taken to accept the recommendation of the credentials committee and to change the specialty exam for technicians to a general exam, one of the Board members was out of the room. Members of the public were not present and might have wanted to be there. The re-arrangement of the agenda placed the vote on the credentials committee recommendation to change the technician exam in between votes on discipline hearings and denial proceedings. Section 120.53(1)(d), Florida Statutes, requires that the agenda list items “in order of presentation.” Moreover, it had been announced that a public workshop on rules was to be held the second day of the scheduled meeting as part of the Board’s March meeting. The agenda indicates a rules workshop and lists each of the current rule chapters of the Board. There were no specific, proposed rule changes noticed or proposed new rule language available for the public to review. The purpose of the workshop was to obtain public comments on any of the current rules. Questions were raised by the public at the public workshop meeting, concerning the vote taken the previous day to change the technician exam, especially since the specialty exam was to be given for the first time in October 1996. The rule providing for it had only become effective in December 1995. Some persons spoke in favor of the change of the examination to a general one, while others spoke against that change. In June of 1996, the proposed re-write of the rules concerning technician exams, training and experience requirements for licensure, changes to the scope of practice for technicians, and changes to the director exam, among other changes, was proposed and voted on by the Board. The proposed rules were written by the new chair of the Board. The Board did not finish considering the changes at the June meeting and it was announced what the Board would continue its review and vote on the proposed changes at the July conference-call meeting. No new agenda was published for that July conference- call meeting and the Petitioners maintain that votes taken at that meeting, and at the March 1996 meeting, render the rules invalid for the failure of the Respondent Board to materially comply with applicable rule-making procedures provided for in Chapter 120. The Petitioners contend that the rule-making procedures followed by the Board through the March to August rule-making effort were flawed because no public input was sought or allowed during the rule-making process. No public workshops or notice of rule development were announced, scheduled or held until the rules were published in the August 23, 1996, Florida Administrative Weekly. No public comment was accepted at the three (3) Board meetings where the rules were re-written and voted on. Drafts of the proposed rule changes were not available to the public at the June or July meeting, either prior to or during the meeting. The new chair of the Board and the Board Administrator appear to have instigated this major revision. It represents a change from the philosophy and prescription contained in the current rules, even though there was objection to the proposed changes and despite serious doubts about the necessity; the lack of proper debate and deliberation; and the speed of adoption, which were expressed by a number of Board members and by the Board attorney. The motives for such a radical change in so short a time after the prior rules became effective in December 1995, after a number of years of rule-making effort, deliberation and consideration thereon are not clear. The chair did express concern about upcoming changes to the Administrative Procedure Act, to be effective October 1, 1996, and her resultant desire to have the rule changes accomplished before the new Administrative Procedure Act went into effect. The credentials committee of the Board was newly created in January 1996, approximately a month after the previously-enacted rules took effect in December 1995. It was created for the purpose of reviewing credentials of candidates for licensure. It was made up of two (2) new members of the Board, and one member who had been on the Board for only approximately six (6) months. It held one meeting to review credentials and then immediately thereafter proposed a change to the technician’s exam: from the specialty exam, only enacted in December 1995, to the “generalist” exam. Once the decision was made to return to the general exam for technicians, then related rule changes were made to the training criteria for technicians, required of candidates to be able to sit for the exam. No cogent reasons were offered by the Respondent as to why the training program requirements for medical technicians were changed in the proposed rules, except to assert that a requirement in the current rule (enacted in December 1995) providing for a four-hundred (400) clock hour training program was eliminated because there were only two (2) locations where the courses were offered. The Board apparently decided that once the decision was made to return to a general exam for technicians, then there was no need to allow an individual to take four-hundred (400) clock hours of training in each specialty of the general category. The Petitioners maintain that the reason the four- hundred (400) clock hour training requirement in each specialty and in general laboratory practices was developed was that they provide specific, quantifiable training requirements, so that all potential candidates are certain of the requirements for licensure. The proposed rule, however, provides only a vague standard for one to employ in determining how much training is provided in each specialty area in the “one year of integrated study” the new rule would require. Thus there are no uniform standards and the Board will have to proceed on a case-by-case basis (making incipient policy) in determining whether a particular candidate has been properly trained. The proposed rule is vague in comparison to the current rule. The proposed rule could tend to lower the standards for training of technicians and would not, therefore, meet the legislative mandate concerning protection of public health. Various changes to the current rules will change the scope of practice for technicians in that they may perform laboratory tests and immediately release their tests results to the public without review by licensed technologists, supervisors or directors. The Board offered no clear reasons why these proposed changes were made. Instead, it traced the history of the review of the work of technicians and contended that the proposed rules would simply clarify conflicts in the current rule. It also considered that the previous Board had heard conflicting views about the proper review of technician test results. The Board offered no new or different studies or considerations that it had learned of since the adoption of the current rules in December 1995. The Petitioners traced the history of the difference between the scope of practice of technologists and technicians to support the maintenance of the distinction between the two in the current rules. Technologists, by training and tradition, are professionals who exercise independent judgment while performing the three (3) phases of the laboratory test — the pre-analytical, the analytical, and post-analytical phases. A technician is trained only to perform manual analytical tasks and thus does not possess the skills and training to properly assess and relate the wider body of knowledge to the current tests in order to determine if the test result is correct, needs to be re-run, whether the tests controls were proper or any of a number of other possible errors. The end result of the changes in the scope of practice rules for technicians will create a blending of the two (2) levels of licensure which will create confusion as to the extent and scope of permissible practice of technologists and technicians. The Board has proposed a new means whereby one can become licensed as a medical technician by experience. The Petitioners claim that allowing this means the Board is not requiring minimal standards for licensure to ensure safe practice of laboratory science, for a number of reasons. An individual is not required to have any formal training in laboratory science and the amount of experience required to sit for the exam is vague. If an individual has a high school diploma, five (5) years of “pertinent general laboratory experience” accrued within the last ten (10) years is necessary. If a candidate has an associates degree then four (4) years, or, if a bachelors degree, then three (3) years of pertinent general laboratory experience is required. The new definition of clinical laboratory experience is “a minimum of six months of full-time experience in at least four of the five categories: microbiology, serology/immunology, chemistry, hematology, and immunohematology.” This last definition is vague and indefinite, allowing the Board to decide on a case by case basis what “six (6) months” means and what “full-time” means. Moreover, the proposed rule does not require a minimum of six (6) months in each of the four (4) specialty areas. The current training requirement of four-hundred (400) clock hours in each specialty area, provides a clear standard to determine if the individual has been properly trained. In allowing an individual to sit for the exam without this defined training and with no clear experience route, the Board has arbitrarily lowered the standards for safe practice of laboratory science or has so vaguely stated the requirements that such lower standards can be effected in decisions made on a case-by-case basis. No rationale was offered in evidence for requiring an individual to have experience in four (4) out of the five (5) specialty areas that make up the general category. Thus an individual could qualify to take the general exam with no formal training, have an undefined amount of experience in only four (4) specialty areas, have no experience in one (1) of the five (5) areas and still become licensed. When this situation is combined with the evidence that an individual could pass the generalist exam by failing all of the questions in three (3) of the five (5) specialty areas, then the result is a failure by the Board to set adequate minimum standards for safe practice of laboratory science by the proposed rule. The Board provided no new evidence concerning why it had now decided to establish an experience route to examination and licensure, other than to simply contend that there had always been individuals who wanted to qualify by experience. The evidence shows that the prior Board had systematically and recently reviewed all of the medical technician qualification rules and had decided not to provide an experience means for qualification. No preponderant evidence was offered of a clear, logical rationale for such changes, only a few short months after the current rules took effect in December 1995 and before an opportunity was even afforded to administer the first scheduled examination under the new rules (in October 1996). The Board also seeks to change the “Director Examination Rule” to provide that only national certification examinations will be given, rather than the current state examinations. The qualification requirements that a candidate would have to meet to qualify to sit for the various national examinations exceed the current qualifications needed to sit for the state examinations. The evidence shows that the prior Board had received reports from the state examination services that the national certification examinations now proposed to be required do not meet the state examination services rules for national examinations. It was also shown that by changing the rule to require Director candidates to sit for certain specified national certification examinations that there would be some individuals who could qualify under the state requirements to sit for the Director examination, but who could not qualify to take any of the specified national examinations. Thus, under the current qualification rule for Director, which was not proposed to be changed, there would be no available examination for such individuals to take. No evidence was produced by the Board as to why it had proposed to change the Director examination rules or any evidence that it has received any different information from its examination services or other sources, compared to what the prior Board had heard and considered when it adopted the current Director examination rule, effective December 1995. The Petitioners also challenge the proposed changes that would apparently create two (2) types of technician licensure, “general” and “high complexity.” In light of the statutory definition found in Section 483.803, Florida Statutes, it would seem to create two (2) categories of technicians, those who perform general practice and those who do high complexity testing. The Board argued that it was re-arranging existing provisions found in several current rules into one rule regarding the qualifications needed by a medical technician in order to perform high complexity testing. Additionally, the Board maintains that it was aligning the Board’s rules with the training and education requirements in CLIA, that personnel must have if they are going to perform high complexity testing (only). The Respondent asserts that the proposed rule “mirrors” the CLIA requirements and that the current rule does not. The Petitioners maintain that there is no statutory authorization for the Board to place in its rules any qualification standards which would permit technicians to perform high complexity testing, merely for the purpose of meeting CLIA standards. The Board’s evidence indicated that this was desirable so that the state could qualify for an exemption from CLIA inspections. However, the Board did not present any evidence of any change in the CLIA regulations or any change in circumstances since the enactment of the current rules, that the current Board had heard, that would warrant making the proposed rules “mirror” the CLIA regulations. The Board presented no testimony in response to the Petitioners’ argument that two (2) types of licensure were being created, and especially in light of the testimony that the previous Board had accepted advice of its counsel not to create that type of provision. Proposed Rule 59O-3.002(2), would allow non-licensed personnel to teach clinical laboratory courses. The only evidence offered by the Board was that it had received comments about the advantages and disadvantages of the two (2) possible options—licensed versus non-licensed instructors and that it had decided to change the rule. The Board did not specify when these comments were received and did not present any evidence to show that any different data, studies or information had been received by the current Board when it decided to change the current rule. Further, Section 483.811(2), Florida Statutes, provides a statutory requirement for licensure of personnel engaged in training of students of laboratory science. Thus the proposed rule conflicts with the statute. The Petitioners also maintain that the Board has abdicated its oversight of development and establishment of laboratory testing, training standards and programs by incorporating by reference the requirements of the Department of Education in this area, when Section 483.811, Florida Statutes, requires it to perform oversight of the development of such standards. This is with reference to the proposed change to current Rule 59O-3.003. The Board presented no evidence for the reason for this change or if any circumstances had changed or new information had come to the attention of the current Board, since the current rule was adopted in December 1995. The proposed rule which changes current Rule 59O-3.003, would fail to require those trained at the technologist level to meet the training requirements of the technician level, as shown by proposed Rule 59O-3.004. The result will be that the technologists who supervise the technicians will not be required to meet the training requirements of the technician personnel they are supervising. This can lead to a general lowering of the standards designed to protect the public health in violation of the legislative mandate, referenced above. No evidence was offered by the Board concerning why these requirements found in existing Rule 59O-3.003(4)(e)i., were eliminated by the proposed Rule 59O-3.004. Findings of Fact as to Intervenor Paragraphs two (2) through five (5) of the Intervenor’s Proposed Findings of Fact are adopted by reference. They concern establishment of the Intervenor’s standing and the agency has stipulated that the Intervenor FABB has standing to challenge the procedural notice and the manner in which the agency implemented rule-making proceedings. A proposal to terminate the blood banking specialty, enacted by the rules which took effect in December 1995, as it pertained to the subject proposed rules, was never agendaed nor discussed at any meeting of the Board. Based upon un-contradicted testimony, it was apparent that a course of communication, cooperation and assistance had occurred between representatives of the agency and its predecessors and representatives of the Florida Association of Blood Banks (FABB) regarding the development and implementation of the rule pertaining to the blood banking specialty designation. This included communications from representatives of the FABB to the agency and its predecessors to set up a committee to resolve various licensure issues pertaining to unique needs of blood bank personnel. The agency and the FABB worked closely together for a number of years to address the problem and develop a rule providing for a blood bank specialty and examination. That rule was adopted in December 1995, and the first examination under that new rule was scheduled to be administered in October of 1996. At no point during the period that the Board was presumably considering repeal of the rule providing for the blood bank specialty and related changes to rules pertaining to technologists and technicians, did it communicate or otherwise notify the FABB of its intended action, until the filing of a Notice of Proposed Rules in the Florida Administrative Weekly on August 23, 1996. The agenda for the meeting held in connection with the workshop and Board meeting on March 7-8, 1996, made no specific notice that a decision to delete the blood banking specialty would be considered. Rather, it noted only that a workshop would occur in which the Board would receive input from the public. Drafts of the proposed rule changes were not available for review by the public at the June 13th, 14th, and 15th meeting of the Board. The Board did not receive any public policy input regarding termination of the blood bank specialty rule, from the time it was adopted in December of 1995 through the Board’s decision to repeal it in June 1996. On August 23, 1996, the agency filed a Notice of Rule Making. The Notice of Rule Making provided that if requested, a hearing would be scheduled within twenty-one (21) days of the notice. There was no evidence presented by the agency that at any time prior to publication of the notice of August 23, 1996, it had held workshops or otherwise explicated its decision to terminate the rules pertaining to the blood banking specialty. While the agency referred to several workshops which were held in March and June of 1996, there was no testimony that repeal of the blood banking specialty was agendaed or discussed.
