00-001184 Zenia Flores De Apodaca vs. Department Of Health, Board Of Clinical Laboratory Personnel Status: Closed Recommended Order on Monday, December 4, 2000.

Summary: Petitioner failed to prove that she possesses the required experience to be entitled to licensure as a clinical laboratory technologist in microbiology.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZENIA FLORES DE APODACA, )

)

Petitioner, )

)

vs. ) Case No. 00-1184

)

DEPARTMENT OF HEALTH, BOARD OF )

CLINICAL LABORATORY PERSONNEL, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on October 5, 2000, in Miami, Florida.

APPEARANCES

For Petitioner: Zenia Flores de Apodaca, pro se

1698 West 65th Street

Hialeah, Florida 33012

For Respondent: Mary S. Miller, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to

licensure as a clinical laboratory technologist in microbiology.

PRELIMINARY STATEMENT

Respondent Board of Clinical Laboratory Personnel filed its

Notice of Intent to Deny the Petitioner's application for

licensure as a medical technologist in microbiology on

August 30, 1999. Petitioner filed her hearing request

challenging the Board's decision on September 13, 1999,

requesting an informal hearing. At its January 2000 meeting the

Board determined that Petitioner was asserting a factual dispute

and that her request should, therefore, be referred to the

Division of Administrative Hearings to conduct an evidentiary

proceeding. On March 20, 2000, this case was referred to the

Division of Administrative Hearings.

Petitioner testified on her own behalf and presented the

testimony of Biarda Villaverde and Caridad Gonzalez. The Board

presented the testimony of Andrea Gereg. Additionally, Joint

Exhibit numbered 1 and the Board's Exhibits numbered 1 and 2

were admitted in evidence.

Only the Board submitted a proposed recommended order.

That document has been considered in the entry of this

Recommended Order.

FINDINGS OF FACT

1. Applications for licensure as a medical technologist in

microbiology are available from the Board's office. With the

application, the Board staff sends directions for completing the

application form, a copy of the relevant statutes and Board

rules, the names and addresses of accredited and Board-approved

medical technology training programs, and other materials.

2. Petitioner's application for licensure as a medical

technologist is dated January 20, 1999. She submitted that

application and all required fees for licensure to the Board.

3. Petitioner received her degree as a doctor of medicine

from the Higher Institute of Medical Sciences in Havana, Cuba.

That degree satisfies the educational requirements for licensure

as a medical technologist in the State of Florida.

4. In addition to minimum educational requirements,

licensure as a technologist requires certain minimum experience

working in a clinical laboratory performing a wide array of

tests or completion of a technologist-level accredited or Board-

approved medical technology training program. This requirement

is clearly set forth in the materials the Board forwarded to

Petitioner as part of her application package.

5. The training program Petitioner completed in Cuba is

not on the list of the Board's approved or accredited medical

technology training programs. Petitioner acknowledges that she

has not enrolled in, or completed, a technologist-level

accredited or Board-approved technology training program.

Therefore, in order to take the licensure examination and

qualify for licensure Petitioner must have completed three years

of full-time employment in a clinical laboratory performing a

wide array of tests.

6. None of Petitioner's work experience has been in the

United States. With her application, Petitioner did not submit

any employment verification forms from her employers. Instead,

Petitioner submitted affidavits from people who knew her in Cuba

and in Nicaragua. These affidavits conflict with each other,

with Petitioner's resumé she submitted to the Board along with

her application, and with Petitioner's testimony at the final

hearing.

7. On her application, Petitioner represented under oath

that she was employed from June 1994 to July 1996 at the

Institute of Tropical Medicine Pedro Kouri in Havana, from

August 1996 to July 1997 at the Julio Trigo General Hospital in

Havana, and from October 1997 to July 1998 at the National

Center of Diagnostic and References in Managua, Nicaragua. She

represented that she performed a wide variety of testing at each

of these institutions, processing patient samples.

8. However, on her resumé, which she submitted to the

Board along with her application, Petitioner represents that at

these three institutions, she was employed as a laboratory

supervisor, charged with assessing laboratory personnel, and as

a researcher. Her resumé also lists extensively the research

studies she performed and her teaching experience.

9. In support of her testimony at the final hearing that

she possesses the required three years of pertinent clinical

experience performing the required testing, Petitioner presented

the testimony of Caridad Gonzalez and Biarda Villaverde.

10. Ms. Gonzalez is a licensed medical technologist

currently employed in the State of Florida. She testified that

she worked with Petitioner at the Institute of Tropical Medicine

Pedro Kouri from 1994 through 1996 and at the Julio Trigo

General Hospital from 1996 through 1998. These dates conflict

with those set forth in two affidavits Gonzalez provided to the

Board as part of Petitioner's application for licensure.

Further, in her own sworn application for licensure filed with

the Board, Gonzalez never mentioned having been employed at the

Institute of Tropical Medicine Pedro Kouri. Additionally,

Gonzalez left Cuba and came to the United States in April 1997

and was not, therefore, employed in Cuba with Petitioner through

1998. Her testimony at final hearing, therefore, lacks

credibility.

11. Biarda Villaverde testified that she worked with

Petitioner at the Institute of Tropical Medicine Pedro Kouri

from June 1994 to June 1995 in a clinical setting. However,

Villaverde and Petitioner worked in different laboratories at

that institution. Villaverde, therefore, cannot support

Petitioner's testimony as to the work performed by Petitioner

since she did not work in the same laboratory. Further, the

facility was a diagnostic, research, and teaching facility,

where some tests were performed on animals, depending upon the

type of research conducted. Villaverde testified that

Petitioner was assigned to the research division at this

facility.

12. Research does not qualify for the work experience

required for licensure as a medical technologist. Even if some

of Petitioner's research experience could be counted toward the

required clinical experience, Petitioner both admitted and

denied at the final hearing that she performed research,

primarily representing that she worked full-time performing the

required array of testing on patient samples.

13. Several of the accredited or Board-approved

technologist training programs are located in South Florida,

where Petitioner resides. A training program takes one to two

years to complete, depending upon the program. Although

Petitioner expressed her unhappiness with the length of time her

application for licensure has been pending, she could have

completed a program, thus obtaining the minimum required

experience for licensure, had she chosen to do so upon learning

the minimum requirements for licensure.

14. Petitioner's argument that she should be given credit

for her work in the laboratories in Cuba and Nicaragua since

they complied with World Health Organization quality control

standards is without merit. The World Health Organization does

not regulate or set quality control standards for clinical

laboratories. The World Health Organization only gathers

statistical data and publishes studies.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

16. Section 483.823, Florida Statutes, authorizes the

Board to prescribe minimal qualifications for clinical

laboratory personnel, including education, training, and

experience. The Board's Rule 64B3-5.003(1), Florida

Administrative Code, sets forth the minimum qualifications for

licensure as a technologist. The law is well settled that

Petitioner has the burden of proof in establishing entitlement

to licensure. Petitioner has failed to meet her burden of proof

in this proceeding.

17. Although Petitioner meets the educational requirements

for licensure, she has failed to demonstrate that she has the

required experience in order to be qualified to take the

licensure examination. Since she admittedly has not completed

an accredited or Board-approving training program, she can only

qualify for licensure, and for taking the licensure examination,

by proving that she has a minimum of three years of pertinent

clinical experience. Due to the conflicts in Petitioner's

representations to the Board in her resumé, her application, and

her testimony at final hearing, and due to the conflicting and

insufficient affidavits she submitted to the Board, and due to

the lack of competent, credible testimony of her witnesses at

final hearing, Petitioner has failed to prove any amount of

required experience.

18. Although Rule 64B3-2.003(8), Florida Administrative

Code, allows the Board to consider research experience as

pertinent clinical laboratory experience, such can be done only

if the research experience involved human subjects and used

methodologies, quality control, and quality assurance techniques

comparable to those of clinical laboratories. Petitioner

offered no competent evidence that any research she did utilized

methodologies, quality control, or quality assurance techniques

comparable to those of clinical laboratories.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying

Petitioner's application for licensure as a clinical laboratory

technologist in microbiology.

DONE AND ENTERED this 4th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 4th day of December, 2000.

COPIES FURNISHED:

Zenia Flores de Apodaca

1698 West 65th Street

Hialeah, Florida 33012

Mary S. Miller, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Joe Baker, Jr., Executive Director

Board of Clinical Laboratory Personnel

Department of Health

4052 Bald Cypress Way

Bin A07

Tallahassee, Florida 32399-3257

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

A02

Tallahassee, Florida 32399-1701

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.