99-001428 Alina De Armas vs. Department Of Health, Board Of Orthotists And Prosthetists Status: Closed Recommended Order on Wednesday, April 19, 2000.

Summary: Applicant lacked experience to be licensed as an orthotic fitter.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALINA DE ARMAS, )

)

Petitioner, )

)

vs. ) Case No. 99-1428

)

DEPARTMENT OF HEALTH, BOARD OF )

ORTHOTISTS AND PROSTHETISTS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

by video on February 29, 2000, at sites in Miami and

Tallahassee, Florida, before Claude B. Arrington, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David R. Slanton, Esquire

21 Southeast First Avenue, Suite 820

Miami, Florida 33131

For Respondent: Mary S. Miller, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to licensure as an orthotic

fitter.

PRELIMINARY STATEMENT

On July 21, 1998, Petitioner filed an Application for

Licensure with Respondent seeking to be licensed as an orthotic

fitter. On January 7, 1999, Respondent filed a notice that it

intended to deny her application. Petitioner thereafter timely

challenged the proposed action, the matter was referred to the

Division of Administrative Hearings, and this proceeding

followed. This matter was scheduled for final hearing on

June 11, 1999. On May 3, 1999, Respondent moved to abate the

proceeding based on an amendment to the licensing law by the

1999 Florida Legislature. It was the belief of the parties at

that time that the amendment would render this proceeding moot.

By Order of Abeyance entered May 5, 1999, the proceeding was

placed in abeyance until July 1, 1999. Subsequently, it was

determined that the amendment did not render the proceeding

moot. Consequently, the matter was rescheduled for final

hearing to be conducted August 27, 1999, in Miami, Florida.

Petitioner did not appear at the formal hearing. When contacted

by telephone by Respondent's counsel at the request of the

undersigned, Petitioner represented that she was too ill to

appear. Thereafter, the final hearing was rescheduled for final

hearing by video. All motions were resolved either by order of

the undersigned or by agreement of the parties prior to the

beginning of the final hearing.

At the final hearing, Petitioner testified on her own

behalf and presented the additional testimony of Raquel Fumero

and Joe R. Baker, Jr. Ms. Fumero was employed by Petitioner's

company at times pertinent to this proceeding. Mr. Baker is the

Executive Director of the Respondent Board. The parties

introduced one joint exhibit, which was accepted into evidence.

In addition, Petitioner presented five exhibits, each of which

was admitted into evidence. Respondent called Mr. Baker as its

only witness. Respondent offered no exhibits other than the one

joint exhibit. Official recognition was taken of all relevant

statutes and rules.

A Transcript of the proceedings was filed on March 17,

2000. Petitioner and Respondent filed proposed recommended

orders, which have been duly-considered by the undersigned in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Chapter 468, Florida Statutes, regulates miscellaneous

professions and occupations in Florida. Chapter 97-284, Laws of

Florida, created Sections 468.80-468.813, Florida Statutes.

These provisions, referred to as Part XIV of Chapter 468,

regulate the practice of orthotics, prosthetics, and pedorthics.

Respondent is the agency of the State of Florida responsible for

administering the provisions of Chapter 468, Florida Statutes.

2. Section 468.80(5), Florida Statutes, provides the

following definition pertinent to this proceeding:

(5) " Orthotic fitter" means a person

who is licensed to practice orthotics,

pursuant to a licensed physician's written

prescription, whose scope of practice is

limited to fitting prefabricated cervical

orthosis 1/ not requiring more than minor

modification; pressure gradient hose;

trusses; custom-molded therapeutic footwear;

prefabricated spinal orthoses, except for

those used in the treatment of scoliosis,

rigid body jackets made of thermoformable

materials, and "halo" devices; and

prefabricated orthoses of the upper and

lower extremities, except for those used in

the treatment of bone fractures.

3. Section 468.803, Florida Statutes, sets forth certain

criteria for licensure as an orthotic fitter. The parties to

this proceeding stipulated that Petitioner has met all criteria

for licensure as an orthotic fitter except the criteria found at

Section 468.803(3)(c)3., Florida Statutes, which requires two

years of experience in orthotics, as approved by the board.

4. Section 468.805, Florida Statutes, is the following

grandfathering provision:

(1) A person who has practiced

orthotics in this state for the required

period since July 1, 1990, who, before

March 1, 1998, applies to the department for

a license to practice orthotics may be

licensed as a orthotic fitter, as determined

from the person's experience, certification,

and educational preparation, without meeting

the educational requirements set forth in s.

468.803, upon receipt of the application fee

and licensing fee and after the board has

completed an investigation into the

applicant's background and experience. The

board shall require an application fee not

to exceed $500, which shall be

nonrefundable. The board shall complete its

investigation within 6 months after receipt

of the completed application. The period of

experience required for licensure under this

section is 2 years for an orthotic fitter.

5. On July 21, 1998, Petitioner filed an application for

licensure as an orthotic fitter. The application, on a form

adopted by Respondent as a rule, required the applicant to state

whether the applicant was seeking licensure based on examination

(pursuant to Section 468.803, Florida Statutes) or pursuant to

Section 468.805, Florida Statutes. Since the deadline for

filing pursuant to the grandfathering provision expired March 1,

1998, Petitioner marked the application to reflect that the

licensure was to be based on examination, the only option

available to her at that time.

6. Along with the application form, Respondent sends to

applicants for licensure copies of the relevant statutes and

rules with instructions that an applicant should read those

statutes and rules prior to completing the application.

Petitioner admitted that she had received those statutes and

rules and that she had read them before completing her

application for licensure.

7. Chapter 99-158, Laws of Florida, became effective on

May 13, 1999, and provides as follows:

Any person who met the period of

experience requirement set forth in section

468.805(1), Florida Statutes, prior to

March 1 , 1998, may apply for licensure

pursuant to section 468.805(1), Florida

Statutes, prior to July 1, 1999.

8. This provision was the basis for the Order of Abeyance

entered May 5, 1999, which placed the proceeding in abeyance

until July 1, 1999. Petitioner did not apply for licensure

pursuant to the provisions of Section 468.805(1), Florida

Statutes, after the enactment of Chapter 99-158, Laws of

Florida, nor did she request that her pending application be

amended to reflect that she was seeking licensure pursuant to

the grandfathering provision. 2/ At the final hearing,

Petitioner, through counsel, asserted that her application

should be considered to be pursuant to either examination or to

the grandfathering provision.

9. Under the grandfathering provision, an applicant must

demonstrate that he or she had practiced orthotics in the State

of Florida for two years between July 1, 1990, and March 1,

1998.

10. At all times pertinent to this proceeding, Petitioner

has been the owner and operator of Ultra Tech Medical Supply and

Equipment, Inc., a company she founded in 1991.

11. Ultra Tech's primary business is the selling and

renting of durable medical equipment such as wheelchairs, canes,

and crutches to patients and to physicians. As will be

discussed in more detail below, Ultra Tech occasionally sells

orthotic devices. On those occasions, Petitioner has served as

the fitter for those devices.

12. Ultra Tech has never had a licensed or certified

orthotist or medical doctor on its staff. Petitioner has never

worked under the direct supervision of a certified orthotist or

medical doctor. At the times pertinent to this proceeding,

Petitioner never worked under anyone else's supervision. She

has never served as an orthotic fitter assistant. 3/

13. Petitioner's exhibits include numerous invoices, some

of which represent orthotic devices she purchased and

subsequently fitted between November 1994 and January 2000.

Some of the invoices in the composite exhibits are duplicates

while others are for purchases of supplies or equipment that are

not orthotic devices. The invoices for orthotic devices

established that fitting orthotic devices was a very minor part

of Petitioner's work week in that she fitted an average of less

than two orthotic devices per week. The testimony established

that Petitioner spent much less than thirty hours per week

fitting orthotic devices.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

15. Petitioner has the burden of establishing by a

preponderance of the evidence that she is entitled to the

licensure she seeks. Florida Department of Transportation v.

JWC Company, Inc. (Fla. 1st DCA 1981).

16. Respondent has the authority to adopt rules to

implement the provisions of Chapter 468, Florida Statutes. See

Section 468.802, Florida Statutes.

17. Section 468.803(3)(c)3., Florida Statutes, requires an

applicant for licensure as an orthotic fitter to have two years

of experience in orthotics, as approved by Respondent.

18. Respondent has adopted Rule 64B14-4.003, Florida

Administrative Code, to implement Section 468.803, Florida

Statutes. That rule provides, in pertinent part, as follows:

(2) In order to establish eligibility

for licensure as an orthotic fitter under

section 468.803(3)(c), F.S., the applicant

must provide:

* * *

(c) Verification of Employment Form(s)

demonstrating two years of experience as an

orthotic fitter assistant signed by the

applicant's qualified supervisor(s).

19. Petitioner has not and cannot satisfy that

requirement. She has never worked as an orthotic fitter

assistant and she had not, at the times pertinent to this

proceeding, worked under anyone's supervision.

20. Petitioner did not apply for licensure under the

grandfathering provision. Even if her application is evaluated

pursuant to the grandfathering provision, the application should

be denied because she failed to establish that she has two years

experience in the practice of orthotics.

21. Rule 64B14-3.001, Florida Administrative Code,

contains the following definition pertinent to this proceeding:

(3) Actively practicing - working in

the field of orthotics/prosthetics at least

30 hours per week.

* * *

(22) One year of work experience -

1900 hours of work in the field of orthotics

. . . completed in no less than 10 months.

22. While it was established that on the average she

fitted one or two orthotic devices a week since 1994, that

evidence is insufficient to establish that she had two years of

experience in the practice of orthotics as required by the

grandfathering provision.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent enter a final order

denying Petitioner's application for licensure as an orthotic

fitter.

DONE AND ENTERED this 19th day of April, 2000, in

Tallahassee, Leon County, Florida.

____________________________ _______

CL AUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Divisio n of Administrative Hearings

this 19th day of April, 2000.

ENDNOTES

1/ Section 468.80(4), Florida Statutes, defines the term

orthosis as follows:

(4) " Orthosis" means a medical device

used to provide support, correction, or

alleviation of neuromuscular or

musculoskeletal dysfunction, disease,

injury, or deformity, but does not include

the following assistive technology devices:

upper extremity adaptive equipment used to

facilitate the activities of daily living,

including specialized utensils, combs, and

brushes; finger splints; wheelchair seating

and equipment that is an integral part of

the wheelchair and not worn by the patient;

elastic abdominal supports that do not have

metal or plastic reinforcing stays; arch

supports; nontherapeutic accommodative

inlays and nontherapeutic accommodative

footwear, regardless of method of

manufacture; unmodified, over-the-counter

shoes; prefabricated foot care products;

durable medical equipment such as canes,

crutches, or walkers; dental appliances; or

devices implanted into the body by a

physician. For purposes of this subsection,

"accommodative" means designed with the

primary goal of conforming to the

individual's anatomy and "inlay" means any

removable material upon which the foot

directly rests inside the shoe

and which may be an integral design

component of the shoe.

2/ Petitioner was not represented by counsel prior to July 1,

1999.

3/ The term orthotic fitter assistant is defined by Section

468.80(6), Florida Statutes.

COPIES FURNISHED:

Mary S. Miller, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

David R. Slanton, Esquire

Suite 820

21 Southeast First Avenue

Miami, Florida 33131

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

William Large, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Joe Baker, Executive Director

Board of Orthotists and Prosthetists

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.