00-003895PL Department Of Health, Board Of Optometry vs. Michael R. Duenas Status: Closed Recommended Order on Wednesday, December 6, 2000.

Summary: Certified optometrist was not required to perform a dilated fundus examination on a patient where it was not medically indicated and where the visit was not the patient`s initial presentation. Standard of care met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) Case No. 00-3895PL

)

MICHAEL R. DUENAS, O.D., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Notice was given and on November 6, 2000, a final hearing

was held in this case and conducted pursuant to Sections 120.569

and 120.57(1), Florida Statutes. The final hearing was held at

the Recreation Center, 131 Oak Street, Chattahoochee, Florida.

The hearing was conducted by Charles A. Stampelos, Administrative

Law Judge.

APPEARANCES

For Petitioner: Deborah B. Loucks, Esquire

Agency fo r Health Care Administration

Post Office Box 14229

Mail Stop 39

Tallahassee, Florida 32317-4229

For Respondent: Stewart E. Parsons, Esquire

101 North Madison Street

Quincy, Florida 32351

STATEMENT OF THE ISSUES 1

1. Whether the standard of care for the practice of

optometry required that patient, J.P., be dilated by Respondent

at the January 1998 appointment.

2. Whether the standard of care for the practice of

optometry required Respondent to note in patient J.P.'s patient

record the reason for not dilating J.P. at the January 1998

appointment.

PRELIMINARY STATEMENT

On July 14, 2000, the Department of Health, Board of

Optometry (Petitioner) alleged that Michael R. Duenas, O.D.,

(Respondent) is subject to discipline pursuant to Section

463.016(1)(h), Florida Statutes, through violation of Florida

Administrative Code Rule 64B13-3.007(2)(f), by failing to perform

and record an internal examination, including the failure to

perform a dilated fundus examination as required by Florida

Administrative Code Rule 64B13-3.010(10)(a), or failing to note

justification for not dilating the patient in the patient's case

record. Respondent disputed several allegations of material fact

contained in the Amended Administrative Complaint and requested a

hearing. The Department forwarded the request for hearing to the

Division of Administrative Hearings, which scheduled the

proceeding.

Prior to the final hearing, Respondent filed a Motion to

Dismiss or Strike and Petitioner filed a Response. Ruling was

deferred. The Motion is granted for the reasons stated herein.

See Conclusion of Law 44.

The parties entered into a Pre-Hearing Stipulation offered

into evidence as Joint Exhibit Number 1. At the hearing,

Petitioner presented the testimony of J.P., the patient of

Respondent, who is mentioned in the Amended Administrative

Complaint. Kenneth Lawson, O.D., an expert witness, also

testified. Respondent testified in his behalf and also offered

the testimony of Walter Hathaway, O.D. and Adam Gordon, O.D.,

M.P.H., expert witnesses. The parties offered into evidence

Florida Administrative Code Rules 64B13-3.007 and 64B13-3.010,

which are applicable in this proceeding. See Joint Exhibit

Number 2.

The Transcript of the hearing was filed on November 21,

2000. Both parties filed proposed recommended orders, which have

been reviewed and utilized in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of optometry in the State of Florida.

2. At all times material to this case, Respondent has been

licensed as a certified optometrist in the State of Florida,

holding license number 1734. Respondent practices optometry in

Chattahoochee, Florida.

3. Respondent received his Doctor of Optometry degree from

the University of Alabama in Birmingham in 1982. He is licensed

to practice optometry in Georgia and Florida, and in the latter

since June of 1982. Respondent has been a certified optometrist

in Florida since 1984-1985.

4. Respondent specializes in diseases of the retina which

include, but are not limited to, diabetes and hypertension.

Respondent is engaged in the private practice of optometry, but

also practices hospital-based optometry as a physician-

consultant with Florida State Hospital. He has lectured and

published extensively in the area of optometry, including issues

on public health and the importance of high blood pressure and

diabetes.

5. Respondent sits on the Council on Optometric Education

which is an 11-member board that accredits all of the optometry

schools and residency programs in the United States and Canada.

6. As a certified optometrist, Respondent is competent to

perform a dilated fundus examination.

Respondent's examination and treatment of J.P.

7. Respondent provided optometry services to patient, J.P.,

a registered nurse, for the first time on February 21, 1989.

This was J.P.'s initial patient visit. Respondent performed a

dilated fundus examination on J.P. which indicated his peripheral

retina was completely normal. J.P. did not report any history of

high blood pressure/hypertension at that time.

8. On August 20, 1990, Respondent performed a full and

general examination of J.P.'s eyes and all of the components of

that examination were recorded in J.P.'s patient record. J.P.

did not report any history of hypertension at that time. No

dilation was performed nor was it required.

9. In late 1994, J.P. was working as a nurse at Florida

State Hospital when a patient slapped him on the face. J.P.

suffered a corneal abrasion. On December 13, 1994, Respondent

examined J.P. Respondent diagnosed J.P.'s problem as "mild

iritis," and medical treatment was afforded. Respondent

performed a thorough examination of J.P.'s retina, including the

peripheral examination with dilation. All aspects of the retina

were within normal limits. There was no sign of any hypertensive

changes at that time, nor any sign of any trauma related to the

incident. J.P.'s injury resolved satisfactorily, and, J.P. had

no further trouble whatsoever. J.P. was told to return in one

week for a follow-up visit, but he did not. J.P. has not had any

trouble with his eyes after the December incident and after being

treated by Respondent in December of 1994.

10. J.P. has had borderline high blood

pressure/hypertension since he was a teenager. He started taking

daily medication in 1990. J.P. advised Respondent of his

hypertension and the nature of his medication on a form when he

visited in 1994. J.P.'s hypertension was well-controlled with

medication at the time of J.P.'s December 1994 visit through his

next examination in January 1998. He suffers no symptoms from

his high blood pressure/hypertension.

11. J.P. returned to Respondent in January 1998 to obtain a

prescription for reading glasses. J.P.'s January 1998 visit with

Respondent was not his initial presentation or visit.

12. J.P was questioned about his hypertension and J.P. told

Respondent it was in good control. J.P. had been seeing Dr.

Richardson, a local physician. Dr. Richardson refers patients

with ocular complications of systemic diseases to Respondent for

examination. Dr. Richardson, who was familiar with J.P.'s

health, did not express any concern to Respondent regarding

J.P.'s hypertension.

13. Because Respondent had not examined J.P. for over two

(2) years, he performed a comprehensive examination and all of

the minimal procedures for vision analysis including

consideration of J.P.'s patient history and visual acuity's,

which were done and recorded. He performed an external

examination, with a slit lamp, which was done and recorded.

Respondent also performed a pupillary examination, which was

recorded as normal. Visual field and confrontation testing were

done and recorded. He also graded the blood vessel status for

any abnormalities. He recorded the cup-to-disk ratio having

performed an internal examination by direct ophthalmoscopy.

There were no recorded arteriosclerotic changes, and no

hypertensive retinopathy. He graded the ratio between the

arteries and the veins, which was normal at two-thirds. An extra

ocular muscle balance assessment was done. Respondent, using a

direct ophthalmoscope, was able to view the majority of the

retina and assess the blood vessel status for any signs of

retinopathy, at which point there was no sign of retinopathy,

which was consistent with the patient's history of having

controlled hypertension. Tonometry was performed and the results

for a glaucoma check recorded. Refraction was performed and

results with acuity recorded.

14. J.P. had no physical limitation or medical condition,

such as diabetes, which may have required this examination.

J.P.'s blood pressure or hypertension was reported as being in

good control, and the record does not reveal otherwise. While

performing the vision analysis, Respondent had a good view of the

retina because J.P. did not have cataracts or other media

opacities in the lens or cornea or vitreous of the eye that could

cause problems seeing the retina, which might require dilation.

Respondent also weighed the risks of dilation. Respondent's

explanations for not performing the dilated fundus examination

and for not noting same in J.P.'s patient chart are reasonable.

15. A treatment plan was devised for J.P. and J.P. was

apprised of the findings of the examination. Respondent advised

J.P. to return in one year. J.P. did not return. Respondent

issued a prescription for glasses for J.P.

16. J.P. never encountered any unresolved medical problems

nor encountered any medical problems with his eyes that resulted

from the lack of a dilated fundus examination on his eyes in

January 1998. This examination was not medically indicated.

Standard of Care for performing a dilated fundus examination

and notation in the patient's record

17. A dilated fundus examination is performed to enable the

optometrist to examine the anterior part of the eye, -- in

particular, the peripheral part of the retina -- and to assess

the condition of the lens, looking for cataracts, for example.

Eyedrops are placed in the eye to enlarge or dilate the pupil.

This helps the optometrist to view a larger area of the retina in

greater detail than can be done without dilation of the pupil.

18. Florida Administrative Code Rule 64B13-3.007 provides

for "minimum procedures for vision analysis" and specifically

subsection (2)(f) provides: "An examination for vision analysis

shall include the following minimum procedures, which shall be

recorded on the patient's case record . . .[ i] nternal examination

(direct or indirect ophthalmoscopy recording cup disc ratio,

blood vessel status and any abnormalities) . . . ."

19. Florida Administrative Code Rule 64B13-3.007(4), not

referenced in the Amended Administrative Complaint, provides:

"Except as otherwise provided in this rule, the minimum

procedures set forth in paragraph (2) above shall be performed

prior to providing optometric care during a patient's initial

presentation, and thereafter at such appropriate intervals as

shall be determined by the optometrist's sound professional

judgment. Provided, however, that each optometric patient shall

receive a complete vision analysis prior to the provision of

further optometric care if the last complete vision analysis was

performed more than two years before."

20. Florida Administrative Code Rule 64B13-3.010 provides

the "standard of practice for licensed optometrists."

Subsection(10)(a) provides: "To be in compliance with Rule

64B13-3.007(2)(f), certified optometrists shall perform a dilated

fundus examination during the patient's initial presentation and

thereafter whenever medically indicated. If in the certified

optometrist's sound professional judgement, dilation should not

or can not be performed because of the patient's age or physical

limitations or conditions, the reason(s) shall be noted in the

patient's medical record." There is no cited agency precedent

interpreting subsection (10)(a).

21. The Board's expert, Kenneth Lawson, O.D., is a

certified optometrist licensed to practice optometry in the State

of Florida. He has been a consultant for the Board of Optometry

for approximately three (3) years and has reviewed twenty-five

(25) to thirty-five (35) cases involving complaints filed against

optometrists.

22. According to Dr. Lawson, Florida Administrative Code

Rule 64B13-3.010(10)(a) was enacted in 1995 because there had

been an ambiguity with respect to the dilation standard of care.

It is Dr. Lawson's opinion that this rule requires a certified

optometrist to perform a dilated fundus examination on every

initial patient and where medically indicated. He interprets the

word "initial" to mean the first time the patient is seen by the

optometrist and also when the patient has not been examined by an

optometrist for a period of three (3) years. Dr. Lawson opines

that every patient becomes an initial patient every three (3)

years if not examined and dilated within the three-year period.

He also believes dilation is required during every visit if there

has been trauma to the eye or if the patient has had a history of

ocular trauma or other factors such as hypertension, regardless

of whether the hypertension is under good control during each

visit. See Conclusion of Law 46.

23. As a rule, however, Dr. Lawson dilates every patient

over sixty-five (65) years old every year and all patients under

sixty-five (65) every two years. These time periods can vary

depending on the health of the patient. For example, Dr. Lawson

stated that there is a low risk or probability that hypertension

would lead to blindness or impairment of visual acuity if the

hypertension is well-managed by medication and the patient is

younger than sixty (60). Dr. Lawson conceded that the Board's

rule does not require dilation every year, only every three

years. Dr. Lawson also opines that there should be some

documentation on the patient's chart indicating why dilation was

not performed.

24. Dr. Lawson relied on the Physician's Current Procedural

Terminology (CPT) textbook, volume IV, to support his position

that an "initial" patient is one who has not received any

services from the physician within a three-year period. Dr.

Lawson believes that the words "initial" and "medically

indicated," appearing in subsection (10)(a), are referenced by

the three-year period. He concludes that it is the standard of

care for dilation to be performed every three (3) years.

25. However, the CPT instructs physicians on how to bill

for procedures and enables an optometrist to receive a higher

rate of reimbursement rate for the visit; it is not a standard of

care. The textbook or physician code book was not offered in

evidence and is not a credible source. Dr. Lawson's explanation

of the relevant standard of care is not persuasive.

26. Walter Hathaway, O.D. and Adam Gordon, O.D., M.P.H.

testified on behalf of Respondent as expert witnesses.

27. Dr. Hathaway is a certified optometrist in the State of

Florida and has practiced for thirty-four (34) years. He has

served as an expert reviewer for the State of Florida, Board of

Optometry, and has served as an expert witness twelve (12) times.

28. Dr. Hathaway opined that a dilation is required during

the patient's initial evaluation or presentation and when

medically indicated; for example, when the patient has a history

of diabetes, flashes, or floaters, which indicates retinal

detachment.

29. Dr. Hathaway opined that a dilated fundus examination

is not required in all cases where a patient reports a history of

hypertension if the hypertension is under control.

30. Dr. Hathaway was asked to consider a hypothetical set

of facts based upon the facts of record regarding J.P.'s health

and Respondent's examinations of J.P. Based on his professional

judgment, Dr. Hathaway concluded that Respondent was not required

to perform a dilated fundus examination on J.P. during the course

of his examination on January 6, 1998.

31. Dr. Gordon is a licensed optometrist in the State of

Alabama, has practiced for eighteen (18) years, and has been a

Clinical Associate Professor at the University of Alabama-

Birmingham School of Optometry for sixteen (16) years. He also

examines patients in a private group practice. Formerly, he

served as a faculty member at Johns Hopkins University Hospital

in Baltimore, Maryland.

32. Dr. Gordon was also asked to consider a hypothetical

set of facts based upon the facts of record regarding J.P.'s

health and Respondent's examinations of J.P. and stated, that in

his professional judgment, a dilated fundus examination was not

medically indicated for this patient on January 6, 1998.

Likewise, Dr. Gordon stated that this examination is not required

on all patients reporting a history of hypertension. Conversely,

he would consider dilation if the patient reported his or her

high blood pressure was out of control or if he or she stopped

seeing a physician or had stopped taking medication for the

condition, factors absent here.

33. It was not medically indicated for Respondent to

automatically give J.P. a dilated fundus examination in January

1998, because J.P.'s hypertension was under control at that time.

J.P. testified that his hypertension had been controlled with

medication through and including his January 1998 visit with

Respondent. Further, J.P. had no problems with his eyes after

his 1994 visit with Respondent. A dilation examination may have

been required if J.P.'s hypertension had been uncontrolled or if

J.P. exhibited some other medical problem such as diabetes, or if

J.P. had stopped taking prescribed medication. These factors are

not present here.

34. The weight of the evidence supports only one finding:

there was no medical indication which would have required

Respondent to perform a dilated fundus examination on J.P. during

his January 1998 examination. The weight of the evidence

supports Respondent's exercise of professional judgement in not

performing a dilated fundus examination on J.P. during the

January 1998 visit.

35. The weight of the evidence proves that the standard of

care set forth in Florida Administrative Code Rule 64B13-

3.010(10)(a) for performing a dilated fundus examination does not

require this examination automatically every three (3) years.

Rather, dilation should be performed during the "initial

presentation," and when "medically indicated" based on the

certified optometrist's exercise of sound professional judgment

in light of the patient's medical history and current health.

36. Further, the weight of the evidence proves that the

standard of care set forth in Subsection (10)(a) does not require

a certified optometrist to note in a patient record the reason

why a dilated fundus examination was not performed unless

dilation was not performed based solely on the patient's age or

physical limitations or conditions, all absent here. The latter

criteria are the only ones stated in the rule, and the weight of

the evidence does not prove that additional criteria should be

considered.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

38. The Department of Health, Board of Optometry, is

responsible for disciplinary proceedings against certified

optometrists in Florida. Chapter 463, Florida Statutes.

39. The Department has the burden of proving the

allegations against Respondent by clear and convincing evidence.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). "Where the

licensee is charged with a violation of standards of professional

conduct and the specific acts or conduct required of the

professional are explicitly set forth in the statute or a valid

rule promulgated pursuant thereto, the burden on the agency is to

show a deviation from the statutorily-required acts . . . ."

McDonald v. Department of Professional Regulation, Board of Pilot

Commissions , 582 So. 2d 660, 670 (Fla. 1st DCA 1991) ( Zehmer, J.,

specially concurring) (citing Purvis v. Department of

Professional Regulation , 461 So. 2d 134 (Fla. 1st DCA 1984)).

Further, because Section 463.016(1)(h), Florida Statutes, and

Florida Administrative Code Rules 64B13-3.007(2)(f) and 64B13-

3.010(10)(a) authorize revocation or suspension of a professional

license, they are penal in nature and are strictly construed in

favor of the licensed certified optometrist. See Breesmen v.

Department of Professional Regulation, Board of Medicine , 567 So.

2d 469, 471 (Fla. 1st DCA 1990). "This being true the statute

[and here the rules] must be strictly construed and no conduct is

to be regarded as included within it that is not reasonably

proscribed by it. Furthermore, if there are any ambiguities

included such must be construed in favor of the applicant or

licensee." Lester v. Department of Professional and Occupational

Regulations, State Board of Medical Examiners , 348 So.2d 923, 925

(Fla. 1st DCA 1977). As in Lester , Chapter 463 and the rules at

issue here have been enacted in the interest of the public

welfare and are generally to be liberally construed so as to

advance that purpose. However, this "laudable question or

purpose" does not justify a construction that would deny to

Respondent the right to know in advance from a reading of the

language what conduct is proscribed by the Legislature, and here,

by the Board of Optometry. Id.

40. An agency interpretation of statutes and rules it

administers is entitled to great deference. Childers v.

Department of Environmental Protection , 696 So. 2d 962, 964 (Fla.

1st DCA 1997); see also Amisub (North Ridge General Hospital,

Inc.,) d/b/a North Ridge Medical Center v. Department of Health

and Rehabilitative Services , 577 So. 2d 648, 649 (Fla. 1st DCA

1991). However, this general statement of construction cannot

prevail over a principle of law as firmly established in

disciplinary proceedings of a penal nature, i.e. , that the

optometry practice act must be strictly construed in favor of the

licensed certified optometrist.

41. Petitioner alleges that Respondent violated Section

463.016(1)(h), Florida Statutes, and Florida Administrative Code

Rules 64B13-3.007(2)(f) and 64B13-3.010(10)(a), because he was

required to perform a dilated fundus examination on J.P. during

the January 1998 examination or failed to note any justification

for not performing the examination in J.P.'s patient record.

42. During his January 1998, examination of J.P.,

Respondent performed all of the minimum procedures for vision

analysis required in Florida Administrative Code Rule 64B13-

3.007(2). Florida Administrative Code Rule 64B13-3.010(10)(a)

establishes a specific standard of care dictating when and under

what circumstances a certified optometrist is required to perform

a dilated fundus examination, as opposed to other procedures.

Thus, the two-year provision in Florida Administrative Code Rule

64B13-3.007(4) does not apply.

43. Florida Administrative Code Rules 64B13-3.007(2)(f) and

64B13-3.010(10)(a) set forth the standard of care applied in this

case and only required Respondent to perform a dilated fundus

examination during J.P.'s initial visit or presentation in 1998

and, thereafter, only whenever medically indicated. The weight

of the evidence proves that given the good condition of J.P.'s

health in January of 1998, as explained to and understood by

Respondent, a dilated fundus examination was not "medically

indicated" nor was this his "initial presentation."

44. Further, the clear meaning of the second sentence of

Subsection (10)(a) required Respondent to note in J.P.'s medical

record his reason(s) for not performing the dilated fundus

examination only if the examination was not performed because of

J.P.'s age or physical limitations or conditions. These

situations are absent here. Thus, Subsection (10)(a) did not

require Respondent to note in J.P.'s record why he did not

perform a dilated fundus examination on J.P. in January of 1998.

45. One additional point merits discussion. The court

noted in Breesmen that "[b]asic due process requires that a

professional or business license not be suspended or revoked

without adequate notice to the licensee of the standard of

conduct to which he or she must adhere. The opinions of the

expert witnesses offered by the parties cannot make certain,

after-the-fact, those standards of conduct that are not clearly

set forth in the statute or a rule." Breesmen , 567 So. 2d at

471.

46. The Board may choose within its statutory authority to

amend its rules to require certified optometrists to perform the

dilated fundus examination more frequently and under different

circumstances. For example, if appropriate and if considered and

adopted pursuant to the requirements of Chapter 120, Florida

Statutes, the Board may choose to adopt Dr. Lawson's position.

However, Dr. Lawson's opinions are not reasonably derived from

the statute and rules at issue. As noted herein, the weight of

the evidence does not support his position nor the bases for his

position in this case. To the extent Dr. Lawson's testimony is

offered to support a non-rule policy, it is rejected. See

Section 120.57(1)(e), Florida Statutes. It would not be

appropriate for the Board to create and apply a new standard of

care after-the-fact as a basis for discipline in this case. See

Section 120.54(1)(f), Florida Statutes ("An agency may not adopt

retroactive rules, including retroactive rules intended to

clarify existing law, unless that power is expressly authorized

by statute.")

47. Petitioner did not prove its case against Respondent by

clear and convincing evidence. The Amended Administrative

Complaint should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Amended Administrative Complaint filed

against Respondent be dismissed with prejudice.

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

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

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 6th day of December, 2000.

ENDNOTE

1/ The parties stipulated to these issues of fact remaining to be

litigated which have been rephrased slightly. Joint Exhibit

Number 1.

COPIES FURNISHED:

Stewart E. Parsons, Esquire

101 North Madison Street

Quincy, Florida 32351

Deborah B. Loucks, Esquire

Agency for Health Care Administration

Post Office Box 14229

Mail Stop 39

Tallahassee, Florida 32317-4229

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director

Board of Optometry, Department of Health

4052 Bald Cypress Way

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.