01-004389 University Of Bridgeport vs. Department Of Health, Board Of Chiropractic Medicine Status: Closed Recommended Order on Tuesday, March 5, 2002.

Summary: Board`s interpretation of "classroom hours" in the context of continuing education requirements was reasonable, used the ordinary meaning of "classroom," and was not clearly erroneous.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY OF BRIDGEPORT, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4389

)

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC MEDICINE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on January 17, 2002, in Tallahassee, Florida, before the

Division of Administrative Hearings by its designated

Admi nistrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Paul Powers, D.C.

Qualified Representative

University of Bridgeport

Post Office Box 15

Rocky Hill, Connecticut 06067

For Respondent: Donna Erlich, Assistant General Counsel

Departme nt of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner’s application

for continuing education course approval should be granted by

the Board of Chiropractic Me dicine.

PRELIMINARY STATEMENT

On July 24, 2001, Petitioner submitted an application for

continuing education course approval for ChiroCredit.com. The

application was determined to be complete on August 22, 2001.

On October 9, 2001, the Board of Chiroprac tic Medicine (the

Board) issued a Notice of Intent to Deny Application for

Continuing Education Course Approval.

Petitioner disputed the Notice of Intent to Deny

Application and filed a Petition for hearing involving disputed

issues of material fact. Th e Petition was forwarded to the

Division of Administrative Hearings on or about November 8,

2001. A formal hearing was scheduled for January 17, 2002.

Petitioner requested that Paul Powers, D.C., appear as

Petitioner's Qualified Representative. An Order dated

December 14, 2001, authorized Paul Powers, D.C., to appear as

Petitioner's Qualified Representative in this case.

At the hearing, Petitioner presented testimony of two

witnesses, Stephanie Baxley and Joseph Boyle, D.C. Petitioner’s

Exhibits numbere d 1 - 6 and 8, including the deposition transcript

of Terry Heller, Ph.D., were admitted into evidence.

Petitioner's Exhibit number 7 was rejected. Respondent

presented the testimony of two witnesses, Sharon Guilford and

Vicki Grant. Respondent’s Exhibits numbered 1 - 3, including the

deposition transcript of David Brown, D.C., were admitted into

evidence.

A transcript consisting of one volume was filed on

February 4, 2002. Proposed Recommended Orders were determined

to be due 15 days after the filing of t he Transcript. The

parties timely filed Proposed Recommended Orders which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Board of Chiropractic Medicine, is the

state agency responsible for the licensu re and regulation of

chiropractic medicine in the State of Florida. Section

456.013(6) and Chapter 460, Florida Statutes. The Board has the

responsibility to approve continuing education courses sponsored

by chiropractic colleges. Section 460.408, Flori da Statutes.

2. Continuing education providers established through

medical osteopathic or chiropractic colleges send their initial

courses to the Board for approval. Ordinarily, once the course

is approved they become an approved provider and do not send

subsequent continuing courses to the Board for approval.

Petitioner is an approved continuing education course provider.

3. On July 24, 2001, Petitioner submitted an application

of an online course to the Board for approval. The submitted

course, Ch iroCredit.com, is a 13 - hour course consisting of nine

regular hours, two HIV/AIDS hours, and two risk management

hours.

4. With the application, Petitioner submitted a letter

dated July 19, 2001, by Drs. Richard Saporito and Paul Powers,

Petitioner’s re presentative. The letter requested the Board “to

review the issue of acceptance of distance based online

education credits for Chiropractors continuing education

requirements in the State of Florida.”

5. On August 22, 2001, Stephanie Baxley, Regulator y

Specialist for the Board, sent a memorandum to Dr. Gene Jenkins,

D.C., chair of the Continuing Education Committee, requesting

continuing education review. Dr. Jenkins signed and marked the

memorandum "approved" on August 29, 2001. On the same date,

Dr . Jenkins also indicated approval of an online course offered

by another provider, Logan College. Ms. Baxley wrote to

Dr. Richard Saporito notifying him that ChiroCredit.com had been

approved for continuing education credit.

6. Vicki Grant is a programs operations administrator with

the Department of Health. Her responsibilities include managing

the licensing and discipline of four professions, including

chiropractic medicine. Ms. Grant received a phone call from

Dr. Jenkins who informed her that he ha d made a mistake by

indicating approval of the online course offered by Petitioner.

In response to his inquiry as to how to proceed, she advised him

to notify the continuing education staff, tell them he had made

a mistake, and ask that the matter be pres ented to the full

board. She also spoke to Sharon Guilford regarding the matter.

Ms. Guilford is Ms. Baxley's supervisor.

7. Sharon Guilford is a program operations administrator

with the Department of Health. One of her responsibilities is

serving as the administrator for the continuing education

section that consists of six professions, including chiropractic

medicine. Ms. Guilford and Ms. Grant spoke about Dr. Jenkins'

phone call. On September 11, 2001, Ms. Guilford wrote a note on

a copy of the A ugust 29, 2001 letter from Ms. Baxley to

Dr. Saporito that stated as follows: "Per Dr. Jenkins - course

should've never been approved. Send letter correcting the error

of approval."

8. On September 11, 2001, Ms. Baxley sent a letter to

Dr. Saporito advi sing him that the approval letter of August 29,

2001, was sent in error and that the Board would take up the

matter at their October 2001 meeting. 1/

9. The Board did address the matter at their October 1,

2001 meeting which was held via teleconference. Dr. Saporito

and Dr. Paul Powers spoke to the Board on behalf of Petitioner.

During the last part of the Board's consideration of this

matter, various board members expressed concern that the Board

did not have enough information to vote for an approval of the

course and discussed having an opportunity to receive more

information. After much discussion, the Board unanimously voted

to deny Petitioner's application for approval of the course for

continuing education purposes. At the same meeting, the Board

also denied an application of Logan College to provide

continuing education via an online course.

10. The Notice of Intent to Deny states the grounds for

denial:

As grounds for denial, the Board found that

the course did not meet the requirements of

Flor ida Administrative Code Rule 64B2 -

13.004. Specifically, the rule does not

contemplate the awarding of credit for

virtual courses or those taken online by use

of a computer. The Board opined that

'classroom hours' as used in the rule means

in - person educa tion and not time spent in

front of a computer. The course offered by

the applicant is an online offering.

Additionally, the Board expressed concerns

about the educational merit and security

protocols used by online course providers,

but welcomes more in formation regarding

these topics.

11. The Board has never approved an online, homestudy, or

video - taped presentatio n for continuing education course credit.

The courses presented to the Board by Petitioner and Logan

College were the first online cour ses to be presented for Board

approval.

12. The Board interprets its applicable rule, which

requires each licensee to obtain 40 classroom hours of

continuing education, to require live and in - person classroom

hours.

13. Petitioner offered the testi mony of two expert

witnesses, Dr. Terry Heller and Dr. Joseph Boyle. Dr. Heller

has knowledge regarding theories of learning and education, but

lacks knowledge about chiropractors, chiropractic education, or

chiropractic continuing education and does not appear to be very

familiar with Petitioner’s particular online course.

14. Dr. Boyle is familiar with both chiropractic

continuing education and Petitioner's course. He disagrees with

the Board's interpretation that the term "classroom hours" must

mean a lecture or live format. However, Dr. Boyle described the

broadest definition of "classroom" to be "anywhere, anyplace, at

any pace, anytime." He acknowledged that the Board could set up

criteria for online courses that differ from the criteria for

trad itional classrooms.

15. Respondent’s expert witness, Dr. David Brown, noted

that most chiropractors practice in isolation and very few have

staff privileges at hospitals. In his opinion, a legitimate

policy reason for requiring chiropractors to obtain a certain

amount of in - person continuing education is that they can “rub

shoulders with their peers” and learn from one another.

Dr. Brown noted that many states impose restrictions on the

number of online hours that may be taken or on the type of

license es who are eligible to receive credit.

16. Dr. Brown interpreted the word "classroom" within the

context of the rule containing the requirement of 40 classroom

hours of continuing education to mean ". . . to physically sit

in a room, in a classroom t ype environment which could be an

auditorium or some other environment, with your peers who are

also taking the class in order to obtain course credit. I think

that's a traditional type of view." Dr. Brown's interpretation

of "classroom" within the conte xt of the Board's rule is more

persuasive than those of Petitioner's experts.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida S tatutes.

18. The Petitioner seeks Board approval of a continuing

education course. Accordingly, as the party asserting the

affirmative of the issue, Petitioner has the burden of proving

by a preponderance of the evidence that the Board should have

appr oved the continuing education course. Florida Department of

Transportation v. J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA

1981); Section 120.57(1)(j), Florida Statutes. In this case,

the burden has not been met.

19. Subsection 456.013(6), Florida Sta tutes, governs

continuing education for all the health care boards under the

Department of Health, and reads in pertinent part:

As a condition of renewal of a license, the

Board of Medicine, the Board of Osteopathic

Medicine, the Board of Chiropractic

Medi cine , and the Board of Podiatric

Medicine shall each require licensees which

they respectively regulate to periodically

demonstrate their professional competency by

completing at least 40 hours of continuing

education every 2 years. The boards may

require by rule that up to 1 hour of the

required 40 or more hours be in the area of

risk management or cost containment. This

provision shall not be construed to limit

the number of hours that a licensee may

obtain in risk management or cost

containment to be cre dited toward satisfying

the 40 or more required hours. This

provision shall not be construed to require

the boards to impose any requirement on

licensees except for the completion of at

least 40 hours of continuing education every

2 years. Each of such boa rds shall determine

whether any specific continuing education

requirements not otherwise mandated by law

shall be mandated and shall approve criteria

for, and the content of, any continuing

education mandated by such board. . . .

(emphasis added)

20. Subsection 456.013, Florida Statutes, clearly requires

the Board of Chiropractic Medicine to approve criteria for and

the content of any continuing education which it mandates.

21. Subsection 460.408(1)(a), Florida Statutes, in

pertinent part provides t hat “[c]ontinuing education courses

sponsored by chiropractic colleges whose graduates are eligible

for examination . . . shall be approved by the board if all

other requirements of board rules setting forth criteria for

course approval are met.”

22. The Board’s continuing education rule reads in

pertinent part:

64B2 - 13.004 Continuing Education.

(1) For the purpose of renewing or

reactivating a license, an applicant must

demonstrate to the Board that he or she

participated in at least forty (40)

classr oom hours of continuing chiropractic

education , during all bienniums during which

the license was inactive, or for purposes of

renewal during the past two years, of which

at least one (1) hour concerned risk

management and at least two (2) hours

concerned the laws and rules of the board

and the regulatory agency under which the

Board operates. For the purpose of this

rule, risk management means the

identification, investigation, analysis, and

evaluation of risks and the selection of the

most advantageous me thod of correcting,

reducing or eliminating identifiable risks.

The laws and rules of the Board and the

regulatory agency under which the Board

operates include Chapters 456 and 460,

Florida Statutes, and Rule Chapter 64B2,

F.A.C.

(2) Only those classroo m hours earned at

Board approved continuing education programs

or under the provisions of this rule will be

acceptable.

(3) Continuing education providers,

including providers of AIDS and risk

management, seeking initial approval by the

Board shall pay a fee of $250. Continuing

education providers seeking renewal of

provider status shall also pay a $250 fee

each biennium. To receive Board approval, a

continuing education program:

(a) Should be submitted for the Board’s

approval prior to the date of th e scheduled

presentation;

(b) Must be offered for the purpose of

keeping the licensee apprised of

advancements and new developments in at

least two of the following areas: . . . .

[listed]

(c) Shall have its sponsor submit to the

Board at least the following:

1. A detailed course outline or syllabus,

including such items as method of

instruction, testing materials, if any; and

2. A current curriculum vitae of each

speaker or lecturer appearing in the

program; and

3. The procedure to be used for recording

attendance of those attendees seeking to

apply for continuing education credit and

the procedure for certification by the

program’s registrar of attendance to be

submitted to the Board as verification;

(d) Shall be taught by one or more sp eakers

or lecturers with at least one of the

following qualifications:

1. A faculty level instructor of a

chiropractic college or school . . .; or

2. A post - graduate level instructor of a

chiropractic college or school maintaining a

standard and rep utability approved by the

Board, or a post - graduate level instructor

at a medical or osteopathic college or a

university which college or university is

accredited by, or has status with, an agency

or its successor which is recognized and

approved by the Un ited States Office of

Education or the Council on Post Secondary

Accreditation.

(4) When attending an approved program, a

licensee must sign in and out each day and

his or her attendance must be certified by

the program’s registrar and submitted to the

Board as verification.

(5) Out of State licensees may satisfy the

requirement of continuing education in the

laws and rules of the Board ... by

certifying that they have obtained and read

a copy of Chapters 456 and 460, Florida

Statutes, and Rule Chapt er 64B2, F.A.C. A

copy of said laws and rules may be obtained

from the Board Office.

(6) Hours completed to satisfy the

requirements of Rule 64B2 - 11.012, F.A.C.,

[acupuncture certification] shall satisfy

the requirements of this Rule.

(7) Subsequen t to the renewal or

reactivation period of a license, the Board

may perform random audits of licensees for

verification of attendance at programs

indicated for CE credit on their reporting

forms.

(8) Five hours of continuing chiropractic

education in th e subject area of risk

management may be obtained by attending

. . . a board meeting at which disciplinary

hearings are conducted by the Board . . . in

compliance with the following:

1. The licensee must sign in with the

Executive Director of the B oard before the

meeting day begins.

2. The licensee must remain in continuous

attendance.

3. The licensee must sign out with the

Executive Director of the Board at the end

of the meeting day or at such other earlier

time as affirmatively authorized by the

Board. . . .

(9) A member of the Board . . ., or a

previous member serving in a probable cause

panel, may obtain five (5) hours of

continuing chiropractic education in . . .

risk management for attendance at one Board

meeting or probable cause pa nel. The maximum

CE hours allowable per biennium under this

paragraph shall be ten (10).

(10) In addition to the . . . above, any

volunteer expert witness . . ., shall

receive five (5) hours of credit in the area

of risk management for each case revie wed up

to a maximum of ten (10) hours per biennium.

. . . (emphasis added).

23. As written, Rule 64B2 - 13.004, Florida Administrative

Code, does not reference online continuing education classes.

It references "classroom hours." Moreover, it referen ces

procedures for recording attendance by the program's registrar,

and a requirement that the course be taught by speakers and

lectures with certain qualifications. When read as a whole, the

rule contemplates "classroom" in the ordinary sense.

24. Th e parties' experts hold different views as to the

meaning of the word "classroom." No definition of the word

"classroom" appears in the applicable statutes. Thus, the

common ordinary meaning applies. Amisub v. Department of Health

and Rehabilitative Ser vices , 577 So. 2d 648 (Fla. 1st DCA 1991),

citing Shell Harbor Group, Inc., v. Department of Business

Regulation , 487 So. 2d 1141, 1142 (Fla. 1st DCA 1986).

Webster's New College Dictionary (1999), defines classroom as "a

room in which classes meet."

25. Unless unrelated to the functions of the agency, the

courts generally defer to an agency’s interpretation of its own

statutes and rules. Chiles v. Department of State , 711 So. 2d

151, 155 (Fla. 1st DCA 1998). The agency's interpretation is

usually accor ded substantial deference unless the interpretation

is clearly erroneous. Pan American Word Airways v. Fla. Public

Service Commission , 427 So. 2d 716 (Fla. 1983).

26. In Board of Podiatric Medicine v. Florida Medical

Association , 779 So. 2d 658 (Fla. 1st DCA 2001), the Court held

that the board had the authority to define the terms “human leg”

and “surgical treatment” as they relate to the practice of

podiatry. Similarly, Respondent Board has the authority to

define the term “classroom hours” as it relat es to setting the

continuing education criteria for chiropractic course providers.

27. In this instance, Respondent Board's position that it

may not approve any online courses under its continuing

education rule as currently written is not clearly erron eous and

is reasonable.

28. The Board possesses special knowledge and expertise

regarding continuing education and the practice of chiropractic

medicine.

29. Petitioner's reliance on Chapters 228 and 241, Florida

Statutes, is misplaced. These sta tutes expressly apply to

public schools and public education and reference agencies with

no authority over the Board, its functions, or its

responsibilities regarding continuing education. In any event,

the Legislature's approval of specific distance lear ning

mechanisms in Chapters 228 and 241, Florida Statutes, does not

overcome the express intent of the Legislature giving the Board

authority to approve criteria for and the content of continuing

education courses pursuant to Section 456.013(6), Florida

St atutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED:

That a Final Order be entered denying Petitioner’s

application for continuing education course approval. 2/

DONE AND ENTERED this 5th day of March, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March , 2002.

ENDNOTES

1/ At hearing, Pe titioner's Qualified Representative stated

that they were not at hearing to challenge the approval in

error, but were at hearing regarding the definition of

"classroom hours" as defined by the Board.

2/ The Board's discussion at its October 1, 2001 me eting left

the door open for further consideration as to whether and within

what parameters online continuing education courses may or may

not be approved.

COPIES FURNISHED:

Paul Powers, D.C.

Qualified Representative

University of B ridgeport

Post Office Box 15

Rocky Hill, Connecticut 06067

Donna Erlich, Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Joe Baker, Jr., Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE O F 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.