The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner is eligible for licensure by endorsement as a marriage and family counselor in Florida on account of her licensure in California. The Petitioner contends that California licensure requirements are equivalent to or more stringent than Florida's and that she is therefore entitled to he licensed in Florida. The Respondent contends that California's requirements are less stringent than Florida's and that the Petitioner must therefore take an examination in order to be licensed in Florida.
Findings Of Fact Petitioner applied for licensure by endorsement as a marriage and family therapist. The Department of Professional Regulation denied the application. Petitioner requested a formal administrative hearing, and this proceeding ensued. Petitioner meets all of the qualifications for licensure by examination as a marriage and family therapist in Florida except that she has not yet taken the examination. She has not taken the examination because the Department has never administered one. The Department does plan to administer an examination sometime in November, 1983. Petitioner received a master's degree in marriage and family practice in 1977. She has had in excess of 4,600 hours of supervised experience as a marriage and family therapist in California and approximately 2,750 hours of supervised experience in the field of marriage and family therapy in Boston, Massachusetts. Petitioner is a member of various professional associations and is certified by the American Association of Sex Educators, Counselors and Therapists as a sex counselor. The Petitioner has been licensed as a marriage and family therapist in the State of California since 1980. She met all of the California licensure requirements and passed the examination administered by the State of California. The requirements for licensure as a marriage and family therapist in California are remarkably similar to the requirements in Florida, but they differ in two respects. First, California would accept experience supervised by a physician licensed as a psychiatrist as supervised work experience. Florida would not necessarily accept supervision by a psychiatrist as adequate. This distinction does not render the California requirements less stringent than Florida's. A psychiatrist is fully capable by reason of education and experience to supervise a marriage and family therapist. Second, California requires two years of experience in marriage and family therapy prior to licensure. Florida requires three years of experience, two years of which must be under the supervision of a qualified person, and all of the three years of experience must have occurred subsequent to the receipt of a master's degree. In California, experience received prior to the receipt of a master's degree could be included. In this respect, California's requirements are less stringent than Florida's. Petitioner is the only person who has applied for licensure by endorsement in Florida since the adoption of statutes pertaining to the licensure of marriage and family therapists. Chapter 81-235, Laws of Florida. The Department of Professional Regulation adopted a rule finding that the examinations and requirements for licensure as marriage and family therapists in all other states "shall not be presumed to be substantially equivalent to or more stringent than those in this State." Rule 21U-500.10(1), Florida Administrative Code. This rule overcame the statutory presumption that had been established by the Legislature. Section 490.006(2), Florida Statutes. The rule has been held to constitute an invalid exercise of delegated legislative authority and was declared invalid in a rule challenge proceeding initiated by the Petitioner. Riley v. Department of Professional Regulation, Case No. 83-1854R before the Division of Administrative Hearings (Order entered September 6, 1983).
Conclusions Having reviewed the administrative complaint dated May 13, 2009, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed January 12, 2010 11:44 AM Division of Administrative Hearings. 1 Upon full execution of this Final Order the parties agree to the following: For purposes of settlement, Count I [Tag A700] will be reduced to a Class II deficiency; Respondent agrees to pay $2,000.00 in administrative fines to the Agency within thirty (30) days of the entry of the Final Order. A check should be made payable to the "Agency for Health Care Administration." The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS # 14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this _2_day of , 20..V, in Tallahassee, Leon County, Florida. Thom , Agency f h Care Administrati A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY .., OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Michael P. Gennett, Esq. Attorney for Respondent Akerman Senterfitt One S. E. Third Avenue 25th Floor Miami, Florida 33131 (U. S. Mail) Alba M. Rodriguez, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Eleanor M. Hunter Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) ' . CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was ry/ , served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the 'i>p.day of 20/0. Richard J. Shoop Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 922-5873 A
The Issue The issues are whether, in violation of sections 120.54(1)(a) and 120.56(4), Florida Statutes, Respondent has made an agency statement that is an unadopted rule in implementing a 2017 statutory amendment broadening the category of first-time test-takers to be counted when calculating the passing rate of the graduates of Petitioner’s prelicensure professional nursing education program (Program) and whether, pursuant to section 57.111, Petitioner may recover attorneys’ fees and costs from Respondent. At Petitioner’s request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passage rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test-takers who had taken the exam within six months of graduating (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program’s New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner’s relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program’s Graduates failed the NCLEX, so the Program’s passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program’s test-takers were New Graduates, and only three of them failed, so the Program’s passing rate was adequate at 75%. Respondent clearly applied the Statutory Amendment retroactively to January 1, 2017, in the Order Extending Probation because the order states that that the passing rate of the Program’s Graduates for 2017 was only 60% and therefore extends Petitioner’s probationary status for 2018. The Order Extending Probation provides Petitioner with a clear point of entry to request an administrative hearing. Each party applies the Statutory Amendment without regard to the effective date of June 23, 2017, but Respondent reaches the correct conclusion: the passing rate of the Program’s graduates for 2017 was inadequate. The NCLEX is administered throughout the year, and the dates of graduation are available for Petitioner’s Graduates taking the NCLEX in 2017, so it is possible to calculate a combined passing rate, using only New Graduates under the old law for testing dates through June 22 and all Graduates under the new law for testing dates after June 22. From January 1 through June 22, 2017, five of the Program’s test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program’s passing rate was nine divided by thirteen, or 69%, which was inadequate for 2017.
The Issue The Administrative Complaint in Case No. 90-7826 alleges violations of Chapter 464, Florida Statutes, governing the professional practice of nursing, when Respondent is alleged to have left a medication vial, syringe and needle in a place accessible to patients, in an alcohol and drug detoxification facility in Cocoa Beach, Florida. The Administrative Complaint in Case No. 91-7581 alleges that Respondent is unable to practice nursing with reasonable skill and safety to patients, by reason of illness, or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition, as provided in Section 464.018(1)(j), Florida Statutes. The issues initially submitted for disposition were whether those allegations are true, and if so, what discipline or action regarding Respondent's license should be taken. As discussed below, the parties have resolved the issues with a stipulation.
Findings Of Fact The following constitute the parties' stipulated findings of fact. Ms. Beecher is a licensed nurse in the State of Florida, holding license number RN 1238832 and, therefore, is subject to the jurisdiction of the Department and the Board of Nursing. Ms. Beecher was placed on probation for a period of one year as a result of disciplinary action filed in Department of Professional Regulation Case No. 90740. A term of the probation was that Ms. Beecher obtain and continue in counseling for the term of the probation, and thereafter until discharged. During the probationary period, Ms. Beecher received counseling from Marianne Jones, R.N., L.C.S.W., C.A.P. Ms. Beecher caused Ms. Jones to submit a probation report to the Board of Nursing in August 1990. Ms. Jones indicated that Ms. Beecher was not capable of safely engaging in the practice of nursing because of Ms. Beecher's mental illness and her lack of cooperation with her treatment program. Ms. Beecher appeared at the Board of Nursing meeting on October 12, 1990, at which time the Board members and staff were concerned about her erratic and irrational behavior. Ms. Beecher was examined in or around August and September, 1991 by Dr. Burton Podnos, M.D., a psychiatrist, who opined that Ms. Beecher was schizophrenic and, therefore, that she was not capable of safely engaging in the practice of nursing.
Recommendation Based on the foregoing, the parties have stipulated to the following recommended disposition: that a final order be entered suspending the nursing license of Linda Krasnay Beecher until such time as she is able to demonstrate that she is capable of safely engaging in the practice of nursing, and requiring that she enroll in the Intervention Program for Nurses (IPN) and complete their program for mentally impaired nurses. The final order should also reflect dismissal of the complaint in Case No. 90-7826. DONE and ENTERED this 4th day of March, 1992, in Tallahassee, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1992. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Lois Lepp, Esquire Department of Professional Regulation 1940 N Monroe Street Suite 60 Tallahassee, Florida 32399-0792 David Young, Esquire 1227 S. Florida Avenue Rockledge, Florida 32955
Findings Of Fact Florida law requires that persons employed to serve in instructional capacities in the public schools hold valid certificates to teach. The Respondent, Florida Department of Education, is charged by statute with the responsibility of issuing such teaching certificates, and with the concomitant responsibility to suspend or revoke teaching certificates under appropriate circumstances. Sections 231.14 - 231.28, Florida Statutes. Purporting to act under authority of this statutory framework, the Respondent has adopted Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code, as its rules establishing practices to be followed in suspending or revoking teaching certificates. The Respondent's rules establish a procedure whereby a teacher charged with conduct that would justify suspension or revocation of a teaching certificate is presented with the options of taking no action, which results in informal procedures at which the appropriate penalty is the only issue; or of requesting a hearing. If a hearing is requested, the teacher is permitted to choose between a hearing conducted by a Hearing Officer of the Division of Administrative Hearings as provided in Section 120.57(1), Florida Statutes, or a hearing conducted by a panel of the Professional Practices Council ("PPC" hereafter). Rule 6A-4.37(2) provides in pertinent part as follows: When the commissioner of education finds that probable cause exists, he shall direct a filing of a formal petition against the certificate holder for the revocation or suspension of a teacher's certificate, together with a form permitting waiver of a hearing officer pursuant to section 120.57(1), Florida Statutes, as hereinafter provided. If section 120.57(1), Florida Statutes, shall be waived by both the respondent and the chairman of the professional practices council by executing and filing the waiver form with the commissioner of education within twenty (20) days from service of the petition upon the respondent, the commissioner of education shall direct the chairman of the professional practices council to prosecute the matter before a hearing panel of three members of the professional practices council each of whom has not participated in nor was an informed party in any preliminary investigation of the cause. If section 120.57(1) Florida Statutes, is not waived by the parties, the matter shall be prosecuted before a hearing officer of the division of administrative hearings. The professional practices council may retain an attorney to prosecute the cause. The professional practices council may retain a different attorney to advise the hearing committee and act as a law officer for said committee. On completion of the hearing as hereinafter set forth, the hearing panel or officer, shall transmit through the commissioner of education to the state board of education a transcript of the proceedings and a report, which shall contain specific findings of fact, conclusions of law, interpretations of rules and a recommended order. The state board of education shall review the transcript of testimony and the report. The waiver form utilized is as follows: WAIVER OF RIGHT TO A HEARING BEFORE A HEARING OFFICER OF THE DIVISION OF ADMINISTRATIVE HEARINGS IN PREFERENCE TO A HEARING BEFORE A PANEL OF THE PROFESSIONAL PRACTICES COUNCIL In the matter of the revocation of the teaching certificate of and pursuant to the provisions of 120.57, Florida Statutes, I hereby waive my right to a hearing before a hearing officer of the Division of Administrative Hearings. In the alternative I do hereby request that this matter be heard before a panel of professional educators from the membership of the Professional Practices Council as provided in 6A-4.37, Rules of the State Board of Education. DATE RESPONDENT The remaining paragraphs of 6A-4.37 delineate specific procedures to be followed whether the hearing is conducted by a Hearing Officer, or by a PPC panel. The rule was adopted at a May, 1977 meeting of the State Board of Education. Prior to its adoption, public hearings were conducted, and members of the public, including the Petitioner, were allowed an opportunity to comment. The Joint Administrative Procedures Committee of the Florida Legislature reviewed the rule. The rules set out at Chapter 6B-2.01 through 6B-2.16, Florida Administrative Code, establish additional procedures for public hearings conducted by the PPC. These rules pertain to teaching certificate suspension or revocation proceedings and to other matters. They are in large part inconsistent with the provisions of Rule 6A-4.37, and with the Administrative Procedure Act (Ch. 120, Florida Statutes). The rules are no longer followed by the PPC except those provisions which relate to the appointment of a law officer to aid a PPC panel in conducting hearings. The Respondent has been in the process of revising these rules for more than one year. Rule 6B-2.17 relates to probable cause hearings to be conducted by an executive committee. The rule is somewhat vague, but it appears to relate to proceedings under Section 231.57, Florida Statutes, rather than teaching certificate suspension or revocation proceedings. The rule does not relate to the issue of whether a final hearing will be conducted by a Hearing Officer of the Division of Administrative Hearings, or a panel of the PPC. During 1977, three-member PPC panels conducted thirteen hearings in teaching certificate suspension or revocation proceedings. Fourteen such hearings were conducted by Hearing Officers. During 1978, eighteen were conducted by PPC panels, and eleven by Hearing Officers. The Petitioner, Florida Education Association/United AFT-AFL-CIO, is a statewide organization composed of persons involved in the field of education. The members are primarily teachers. The Petitioner is a confederation of local affiliates. Its local affiliates serve as collective bargaining representatives for teachers in approximately half of the local school districts in Florida. Among the Petitioner's functions are to protect its members, and members of the teaching profession with respect to the terms and conditions of their employment as teachers. The Petitioner provides services which local affiliates are largely unable to perform, including legal assistance and lobbying assistance. In many instances the Petitioner provides legal counsel to its members in connection with teaching certificate suspension or revocation proceedings. At the Petitioner's October, 1978 convention, its members authorized Petitioner's executive council to examine the status of the PPC, and to take steps to clarify the role of the PPC. The instant rule challenge was authorized by the executive council in accordance with that mandate of the membership. There are approximately 90,000 teachers in Florida. The Petitioner represents approximately 30,000 of them.
The Issue Whether the Petitioner achieved a passing score on the Laws and Rules Part of the August 13, 1993, Optometry Examination and thereby receiving an overall passing grade.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the relief sought by the Petitioner. RECOMMENDED this day 18th of February, 1994, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5809 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, James R. Coppola's Proposed Findings of Fact. Petitioner did not number his proposed findings of fact; however, I have taken the liberty to number them 1 through 14, beginning with the second full paragraph. Proposed findings of fact 1 and 3 are covered in the Preliminary Statement of the Recommended Order. Proposed findings of fact 2, 11 and 13 are neither material nor relevant to this proceeding. Proposed findings of fact 4 - 10, 12 and 14 are rejected for the reasons stated in Findings of Fact 7 - 19. Respondent, Department's Proposed Findings of Fact. Respondent has broken his proposed findings of fact into three categories and numbered each category separately; however, I have taken the liberty to renumber them 1 through 20, beginning with number 1 under Statement of the Case through 5 under Second Challenge. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(3,4); 8-9(10); 10(12); 11(18); 12(9); 14(7); 15(10); 16(14); 17(15); 18(18) and; 19-20(14). Proposed findings of fact 2 - 7 are covered in the Preliminary Statement of the Recommended Order. Proposed finding of fact 13 is adopted in Finding of Fact 10, except that portion concerning the statement that the language "not to exceed $2500" does not appear in Chapter 21Q-15, Florida Administrative Code, which is rejected. See the language of Chapter 21Q-15, Florida Administrative Code, in Finding of Fact 10. COPIES FURNISHED: James B. Coppola 254 Felton Avenue Port Charlotte, Florida 33952 William M. Woodyard, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Diane Orcutt, Executive Director Board of Optometry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
