11-002025 Tyler Wayne Weldon vs. Board Of Orthotists And Prosthetists Status: Closed Recommended Order on Tuesday, August 2, 2011.

Summary: Petitioner did not demonstrate that he met the experience requirements for licensure as an orthotic fitter.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TYLER WAYNE WELDON, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2025

)

BOARD OF ORTHOTISTS )

AND PROSTHETISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

On Ju ne 17, 2011 , a duly - noticed h earing was held in

Tallahassee , Florida, before Li sa Shearer Nelson, an

Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Frank Edward Maloney, Jr., Esquire

Maccl enny City Attorney

445 East Macclenny Avenue, Suite 1

Macclenny, Florida 32063 - 2217

For Res pondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza L evel 01

Tallahassee, Florida 32399 - 6536

ST ATEMENT OF THE ISSUE S

The issues are whether Petitioner has sufficiently

completed the requirements necessary to receive a license to

practice orthotic fitting from the Board of Orthotists and

Prosthetists and whether the Petitioner has violated sec tion

468.809, Florida Statutes , by practicing orthotics without a

license or registration.

PRELIMINARY STATEMENT

This cause arose when the Petitioner submitted an

application to the Board of Orthotists and Prosthetists (Board)

for licensure as an Orthotic Fit ter . On March 16, 2011 t he

Board notified Petitioner of its Intent to Deny PetitionerÓs

application.

Petitioner filed a Petition for Review and Request for

Administrative Hearing on April 6, 2011 , regarding the Notice of

Intent to Deny . R e s pondent referr ed the case to the Division of

Administrative Hearings (DOAH) requesting DOAH to assign an

a dministrative l aw j udge to hear the disputed issues of fact

arising from the Notice of Intent to Deny PetitionerÓs licensure

application . The undersigned Administr ative Law Judge was

assigned to hear the matter.

The cause came on for hearing as noticed . The proceedings

were recorded but no transcript was filed. At the hearing

Petitioner presented his own testimony in addition to the

testimony of Ray McK inney Patte rson, an expert in physical

therapy education, and Danny Wayne Weldon, P etitionerÓs father

and licensed physical therapist . Petitioner also introduced

three exhibits which were admitted into evidence . Respondent

presented the testimony of Sharon Lee Guil ford, and one joint

exhibit was also admitted into evidence . Upon conclusion of the

hearing the parties were informed of their option to submit

proposed recommended orders by July 11, 2011 . Both parties

timely filed P roposed R ecommended O rders which have been

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The two rules governing the requirements for licensure

as on orthotic fitter in the state of Florida are found in

s ection 469.803(5)(c), Florid a Statutes (2010) , and Florida

Administrative Code Rule 64B14 - 4.110(1)(b) . Section

468.803(5)(c) requires :

(c) to be licensed as an o r thotic fitter

the applicant must pay a license fee not to

exceed $500 and must have:

1 . A high school diploma or its equivalent;

2 . A minimum of 40 hours of training in

orthotics education, as approved by the

board;

3 . Two years of supervised experience in

orthotics acquired after completion of the

required education, as approved by the board;

a nd

4 . Completed the mandatory courses.

2. Petitioner requested information from the Board

regarding the requirements for licensure and received a

publication containing both chapter 468, F lorida Statutes, Part

XIV, and r ule 64B14. He completed the prerequisite education

required by section 468.8 03(5)(c), on June 22, 2009 . However,

Petitioner testified t hat he only reviewed the requirements

identified in section 468.803(5)(c) and did n o t consider the

definition of "experience" contained in r ule 64B14 - 4.110(1), for

applicants for licen sure as an o rthotic fitter .

3. Florida Administrative Code Rule 64B14 - 4.110(1)(b)

construes supervised "experience" to require an applicant to

complete two years of experience in orthotic s under the

supervision of a Florida licensed orthotist . The two years of

exp erience may only begin accruing after the applicant has

successfully completed the requisite education courses.

4 . Petitioner applied for a license in orthotic fitting on

November 22, 2010 , only 17 months after the completion date of

h is educational cours es . Assuming Petitioner started gaining

experience immediately upon completion of his education courses,

Petitioner was still seven months shy of the two years of

experience required to obtain a license as an orthotic fitter.

5 . Petitioner testified at h earing regarding the orthotic

experience gained prior to applying for licensure . According to

h is testimony, his experience consisted of activity more

accurately described as assistance than experience . The

experience described was limited to helping pat ients stand up,

holding a measuring stick, assisting with paperwork , and

explaining paperwork to the patient . PetitionerÓs role involved

little more than observing and occasionally assisting a licensed

physical therapist . This is surely not what is meant by

Ðexperience in orthotics under the direct supervision of a

Florida licensed orthotist,Ñ as contemplated by r ule 64B14 -

4.110(1)(b).

6 . The assistance provided by Petitioner was performed

under the supervision of a licensed physical therapist . While

h i s actions, as described at hearing, did not meet the

requirement s for supervision specified by r ule 64B14 - 9.110, they

also did not rise to the level of unlicensed activity.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings has

jurisdiction ov er the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1),

Florida Statutes (2010) .

8 . Petitioner has applied to the Board for licensure to

practice o rthotic f itting . As the a pplicant for a new license,

Petit ioner has the burden of presenting evidence of his fitness

for licensure . Dep't of Banking & Fin . v . Osborne Stern & Co. ,

670 So . 2d 932 (Fla . 1996) . If Petitioner presents evidence

supporting his fitness for licensure, the burden of going

forward with e vidence shifts to Respondent to show any violation

of statutes or rules supporting denial . However, the ultimate

burden of persuasion remains with Petitioner . Id .

9 . Respondent did not provide sufficient evidence to p rove

Petitioner was practicing o rtho tics without a license .

Respondent and Petitioner both failed to provide any evidence

that Petitioner was involved in anything more than providing

aide to a licensed physical therapist . This behavior is not in

violation of section 468.809.

10 . Florida A dministra tive Code Rule 64B14 - 4.110(1)(b)

requires an applicant for licensure as an orthotic fitter to

demonstrate :

(a) Successful completion of the 32 - hour

Trulife Healthcare or the 32 - hour Surgical

Appliance Industries orthotics course and

examination, and completion of an approved

eight hour course in custom - molded shoes.

(b) Two years experience in orthotics under

the direct supervision of a Florida licensed

orthotist . Candidates licensed by the Board

as an orthotic fitter assistant may earn the

two years of experience u nder the direct

supervision of a Florida licensed orthotic

fitter . Experience in orthotics earned

outside of Florida may also be earned under

the direct supervision of an ABC certified

orthotist . This paragraph shall not be

construe d to authorize any person to

supervise, assist or engage in the

unlicensed practice of orthotics,

prosthetics or pedorthics . The education

required by paragraph (1)(a) above shall be

completed prior to earning the experience

required by this paragraph, ex cept that the

required custom molded shoe course may be

completed no less than one year prior to the

end of the two year period of orthotics

experience the applicant relies on to

qualify for licensure . This paragraph shall

not be construed to authorize an y person

licensed by the Board to practice beyond the

scope of their license, unless supervised

pursuant to the requirements of Chapter 468

Part XIV, F.S., and rules of the Board.

1 1 . The rule specifies that the education requirements

listed in paragraph ( a) must be completed prior to earning the

two years of experience required by paragraph (b) . Petitioner

testified at hearing that his application for licensure w as

submitted only 17 months after completion of the requisite

education courses, rendering it impossible for Petitioner to

have complie d with r ule 64B14 - 4.110(1)(b) .

1 2 . Rule 64B14 - 1.110(1)(b) also requires that the two

years of experience in orthotics must be completed under the

supervision of a Florida licensed o rthotist . While the duties

an d qualifications of a physical therapist and an orthotist

undoubtedly overlap, r ule 64B14 - 4.110(1)(b) does not allow for

the required experience for licensure to b e performed under the

supervision of any licensed professional alternative to an

orthotist . There is no provision for supervision by so meone of

comparable credentials: the rule only allows for experience to

come at the direct supervision of a licensed orthotist.

1 3 . Compliance with r ule 64B14 - 4.110(1)(b) is a necessary

licensure requirement tha t an applicant must complete prior to

gaining a license in o rthotic f itting . The rule clearly calls

for two years of experience in orthotics under the supervision

of a Florida licensed orthotist and Petitioner has not complied

with this rule given that Pe titioner has, at best, 17 months of

experience under the supervision of a licensed physical

therapist.

14 . Petitioner did not meet his burden of demonstrating

that he met the requirements for licensure . PetitionerÓs own

admissions at hearing, showing t hat he had not complied with all

of the prerequisites for a grant of his application for

licensure, demonstrate that he is not entitled to licensure at

this time .

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered by the Board of Orthotists

and Prosthetists denying PetitionerÓs application for licensure

as an o rthotic f itter.

DONE AND ENTERED this 2nd day of August, 2011, in

Tallahassee, Leon Cou nty, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of August, 2011.

COPIES FURNISHED:

Frank Edward Maloney, Jr., Esquire

Macclenny City Attorney

445 East Maccl enny Avenue, Suite 1

Macclenny, Florida 32063 - 2217

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 6536

Bruce Deterding, Executive Director

Board of Orthotists and Prosthetists

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 1701

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin 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.