00-000202 Department Of Health, Board Of Clinical Laboratory Personnel vs. Steven Moore Status: Closed Recommended Order on Thursday, April 6, 2000.

Summary: Respondent who failed to complete and submit proof of completion of required continuing education course is guilty of misconduct subject to minor disciplinary action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CLINICAL LABORATORY PERSONNEL, )

)

Petitioner, )

)

vs. ) Case No. 00-0202

)

STEVEN R. MOORE, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

A hearing was held in this case was held in St. Petersburg,

Florida, on February 24, 2000, before Arnold H. Pollock, an

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Peti tioner: Lawrence F. Kranert, Jr. Esquire

Agency for Health Care Administration

Post Office Box 14229

Mail Station 3

Tallahassee, Florida 32317

For Respondent: Steven R. Moore, pro se

1735 Michigan Avenue, Northeast

St. Petersburg, Florida 33703

STATEMENT OF THE ISSUE

The issue for consideration in this matter is whether

Respondent's license as a clinical laboratory supervisor should

be disciplined because of the matters alleged in the

Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated October 22, 1999, Nancy

Snurkowski, Esquire, Chief Attorney in the Agency for Health Care

Administration on behalf of the Department of Health's Board of

Clinical Laboratory Personnel, charged Respondent with a

violation of Section 483.825(7), Florida Statutes, and

Rule 64B3-11.001(1), Florida Administrative Code, by failing to

supply proof that he had complied with the continuing education

requirements of the Board of Clinical Laboratory Personnel for

the biennium of 1996-1998. Respondent requested formal hearing

on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Sharon

Guilford, a program administrator for the Department of Health's

continuing education and continuing education audit divisions;

Harry F. Knight, an investigator with the Department; and

Respondent, Steven R. Moore. Petitioner also introduced

Petitioner's Composite Exhibit 1 and Exhibit 2. Respondent

testified in his own behalf and introduced Respondent's

Exhibit A.

A Transcript of the proceedings was filed March 3, 2000.

Subsequent to the receipt thereof, only Respondent submitted

matters in writing. This was carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein the

Petitioner, Board of Clinical Laboratory Personnel, was the state

agency in Florida responsible for the licensing of clinical

laboratory personnel and the regulation of the clinical

laboratory profession in this state. Respondent was licensed by

Petitioner as a clinical laboratory supervisor holding license

number JC 10663.

2. Respondent came to Florida in 1973. He held a

bachelor’s degree at that time and immediately took the test for

licensure as a laboratory technician, which he passed. A year

later, he also took the test for licensure as a laboratory

supervisor and passed that test as well. His licenses require

that he take 24 continuing education course hours in his

specialty every two years.

3. During the course of a routine departmental audit of the

continuing education requirements for the biennium of July 1,

1996 to June 30, 1998, Respondent was asked for evidence of his

completion of the required continuing education courses. He went

through his personal continuing education file and extracted the

records on file for the required period. In doing so, Respondent

claims he found evidence of a course in chemistry he had

completed and sent in to the provider, Anderson Continuing

Education, for grading and completion certification, but he

received no certificate of his completion of this course.

4. Respondent is adamant that he mailed the completed

course materials to Anderson on June 14, 1998. He claims he also

sent the Board copies of what he sent in, along with other

information he had. Records at the Board reflect Respondent

submitted certificates reflecting completion of 25 continuing

education hours. However, 12 of those hours, those for

chemistry, were not shown to have been completed during the

biennium. Mr. Moore was advised of this by the Board.

5. The records available reflect that on July 30, 1996,

Respondent was granted a completion certificate for three

continuing education hours for advanced troubleshooting (Course

CC-0019741); on May 14, 1998, a certificate for completing one

hour for Course CC-0021660 and two hours in Advances on the AIDS

Horizon: 1998; and on June 2, 1998, a certificate for seven hours

in Clinical Application of Laboratory Data.

6. The certificate of completion for the 12-hour course in

Clinical Chemistry; Theory, Analysis, Correlation, Section 1,

reflected the completion date of January 13, 1999. Respondent

contends he completed the course materials and sent them in to

Anderson for grading within the required biennium, and the answer

sheet submitted by Respondent at the hearing reflects on the top

of the first page thereof Respondent’s hand-written notation that

it was sent to Anderson on June 12, 1998. This contradicts the

notation by Anderson that the required material was not submitted

for certification until January 13, 1999, well after the

completion of the pertinent biennium.

7. Respondent contends he is aware of what is required and

when the deadlines are. He is also aware of how long it

generally takes Anderson to grade the submitted materials.

Though he contends he submitted the 12-hour chemistry course

materials in June 1998, he claims he didn’t realize Anderson had

not received it or graded it. It was not until the audit, he

contends, when he found he had not received a completion

certificate, that he sent the answer sheet in again.

8. Respondent asked Anderson if the Board would backdate

the certificate for the 12-hour chemistry course to reflect it

was completed during the biennium. Respondent claims it was not

his idea to do so, but he did it at the request of the Board

auditors who asked him to get a statement from Anderson that they

could not backdate certificates.

9. When Respondent was notified of the audit, he wrote to

the Board and indicated the out-of-biennium date on the chemistry

certificate was inaccurate. Based on that claim, a

representative of the Board made a courtesy call to Anderson to

advise the Board of the problem. Anderson did not admit that a

mistake had been made. If Anderson had admitted a mistake,

Respondent would have received credit for the course.

10. Respondent contends he was selected for this audit of

his continuing education as retaliation because he requested to

take the test for licensure in microbiology. He indicates he

requested the test on December 18, 1998, and called the

Department frequently thereafter when he did not hear anything.

It was shortly thereafter that he was notified that he was being

audited.

11. According to Sharon L. Knight, a program administrator

in continuing education and education audit for two of the

Department’s regulatory Boards, of which one is the Petitioner

herein, usually 10 percent of the licensed practitioners in a

profession are subjected to an audit of their continuing

education each cycle. Audits are usually conducted within four

to six months after the end of a biennium. The list of those

selected is computer-generated. Respondent was identified by the

computer for audit. Based on the evidence presented, it is found

there is no evidence the audit of Respondent’s continuing

education record was in any way retaliation for his request to

take the microbiology examination, or based on any other improper

foundation.

12. Respondent is adamant that he completed the required

chemistry course material and submitted it to Anderson for

certification within the biennium. However, he admits he did not

check with Anderson when he did not receive a timely certificate

of completion, but he attributes this to the fact that at that

time his mother moved in with him.

13. Absent any indication of irregularity in Anderson’s

grading process, it is found that the chemistry course,

accounting for 12 hours of continuing education, was not

completed by Respondent and submitted for grading within the

biennium in issue. Any gratuitous comments which may have been

made to Respondent by the Department’s investigator regarding the

seriousness of the allegations are irrelevant and not considered

herein.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

15. The Board of Clinical Laboratory Personnel seeks to

discipline the Respondent’s license as a licensed laboratory

supervisor because of his failure to supply to the Board proof

that he had complied with the minimum continuing education

requirements for continued licensure, in violation of Section

483.825(7), Florida Statutes. The burden rests with the Board to

establish Respondent’s misconduct by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

16. Rule 64B3-11.001(1), Florida Administrative Code,

requires individuals licensed as Respondent is to complete a

specified number of hours (24) of approved continuing education

courses every two years, and to provide proof thereof to the

Board. In the instant case, Respondent was subjected to a random

audit of his continuing education hours for the 1996-1998

biennium. His report to the Board reflected that he had

completed a 12-hour chemistry course during the biennium but when

the certificate of completion of that course was sent in, it

reflected the course had not been taken by Respondent during the

relevant biennium.

17. Respondent contends he took the required course and

sent the completion sheet to the provider within the appropriate

time period, but has no evidence in support of that contention.

In fact, the only documentation relating to the chemistry course

in issue reflects the completion sheet was not submitted to the

provider until January 13, 1999, well after the end of the

pertinent biennium. Respondent’s assertion that the completion

sheet was sent in on time is not supported by credible evidence

of record and is not persuasive.

18. The thrust of the allegation of misconduct is two-fold.

One allegation relates to the failure to complete the required

education within the prescribed period, and the other relates to

the failure of Respondent to send in the appropriate certificate

of attendance in the proper form. Taken together, the evidence

clearly establishes that Respondent failed to provide the

necessary proof of completion of the required attendance. He,

therefore, did not comply with the requirements for continuing

education for the 1996-1998 biennium. His failure to do so

constitutes a violation of the agency’s rules regarding

continuing education which is a basis for disciplinary action as

set out in the statute alleged.

19. Section 483.827, Florida Statutes, sets out the

administrative penalties authorized for established violations of

the agency’s rules. Under the provisions of this section, the

Board may suspend, revoke, annul, or limit renewal of a license;

and impose an administrative fine of not in excess of $500.00 for

each violation established. The statute also sets out those

factors that should be considered in assessing a penalty. These

include the severity of the violation and the severity of the

potential harm to the safety of any person that has or may

result; actions taken by the licensee to correct the violation,

previous violations by the licensee, and financial benefit to the

licensee.

20. Counsel for the Board did not submit any information

suggesting any specific penalty for Respondent’s misconduct.

While the failure to pay sufficient attention to ensure the

Board’s continuing education requirements are met in a timely

fashion raises some question as to the seriousness with which the

Respondent considers these requirements, there is no evidence

that anyone was harmed by Respondent’s misconduct or that he was

financially benefited thereby. By the same token, no evidence

was introduced regarding any prior misconduct by Respondent.

Under the circumstances of this case, it appears that Respondent

has been made aware of the need to ensure his continuing

education requirements are met, and a severe penalty to include

revocation or suspension of his license would serve no legitimate

purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Respondent pay an administrative

fine of $250.00 and that he be reprimanded.

DONE AND ENTERED this 6th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of April, 2000.

COPIES FURNISHED:

Lawrence F. Kranert, Jr., Esquire

Agency for Health Care

Administration

Post Office Box 14229

Mail Station 3

Tallahassee, Florida 32317

Steven Moore

1735 Michigan Avenue Northeast

St. Petersburg, Florida 33703

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

Pete Petersen, General Counsel

Department of Health

2020 Capital Circle Southeast

Tallahassee, Florida 32399-1701

Eric G. Walker, Executive Director

Board of Clinical Laboratory

Personnel

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.