STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KUAN-CHU KUO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3205

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on February 19, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Kuan-Chu Kuo, pro se

5506 Southwest 133 Place

Miami, Florida 33175

For Respondent: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

ISSUE

Whether Kuan-Chu Kuo's application to take the acupuncture examination should be granted or denied.

BACKGROUND

In August, 1981, petitioner Kuan-Chu Kuo ("Applicant") filed with respondent Department of Professional Regulation ("Department") an Application for Acupuncture Examination. By letter dated November 19, 1981, the Department notified Applicant that it intended to deny her application because of her alleged failure to qualify pursuant to Chapter 468, Part VII, and the rules adopted thereunder. By letter dated December 15, 1981, Applicant requested a Section 120.57 hearing on the Department's proposed denial. The Department granted her request and, on December 23, 1981, forwarded this case to the Division of Administrative Hearings for the conducting of the requested hearing.

At hearing, Applicant testified on her own behalf and called Jun Wu Xue as a witness; she also offered Petitioner's Exhibit 1 Nos. 1 through 10 into evidence, each of which was received. The Department offered Respondent's Exhibit 1/ No. 1 (composite) into evidence.

The Department filed proposed findings of fact and conclusions of law on February 26, 1982. No transcript of hearing has been prepared.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. On August 31, 1981, Applicant applied to take the state acupuncture examination administered by the Department. She sought to qualify by reason of her education, indicating that she attended Shanghai Medical College, Shanghai, China, from 1944 to 1950; and that she received her acupuncture education at the Chinese Academy of Medical Science of Jsinan, Shandung, China. (R-1, P-1.)

   
   

2. To qualify by reason of education, an applicant must submit a certificate of the dean or director of the acupuncture school which granted the degree. In satisfaction of that requirement, Applicant submitted a certificate, under seal, of the Shanghai Medical College, dated August 11, 1979, which translated under oath reads:

   
   

   Kuo Kuan-Chu, born in Fukien, age 53, was graduated from Shanghai Medical College (6 years curriculum) in 1950. She was with the Shanghai Medical College from Septem- ber 1944 to July 1950. (R-1, P-2.)

   
   

3. At Shanghai Medical College from 1944 to 1950, Applicant successfully completed a curriculum including such courses as anatomy, biochemistry, physics, acupuncture, Chinese medicine, surgery, pediatrics, internal medicine, radiology, obstetrics/gynecology, opthalmology, neurology, dermatology, physiology, microbiology, pathology, gross anatomy, epidemiology, and pharmacology. She attended classes six-to-eight hours a day during the first four years; during the last two years of study, she worked in a hospital practicing Chinese medicine, including acupuncture, under the supervision of a resident physician. (Testimony of Kuan-Chu Kuo; P-8.)

   
   

4. From 1960 to 1964, she studied at the Academy of Medical Science of Jsinan in Shandung, China. During that five-year program, she investigated the use of acupuncture to treat complications from radiotherapy. She authored several chapters in a textbook on practical gynecology. (Testimony of Kuan-Chu Kuo; R-1.)

   
   

5. On February 10, 1982, Applicant supplemented her application by submitting a Certification, dated November 23, 1981, from the president of the Academy of Medical Science of Jsinan. The Certificate states:

   
   

   Dr. Kuo Kuan-Chu had acupuncture education at Jsinan Hospital from 1960 to 1964.

   
   

   She had fulfilled all the Chinese medicine and acupuncture courses and completed her clinical experiences, a thesis was published in Jsinan medical journals. (R-1.)

6. Applicant has been certified by the Educational Commission for Foreign Medical Graduates as qualified to take an examination which would qualify her to take the Florida medical board exam. To obtain such certification, she was required to show that she completed at least four credit-years at a medical school listed in the "World Directory of Medical Schools." (Testimony of Kuan- Chu Kuo; P-5.)

   
   

7. In 1979, Applicant was invited to the United States to observe the operations of the University of Miami's Department of Obstetrics and Gynecology. (Testimony of Kuan-Chu Kuo.)

   
   

8. According to Jun Wu Xue, M.D., a visiting scholar from China, Shanghai Medical College is one of the most advanced colleges of higher learning in China. He testified that a course of "Medicine of Motherland," including Chinese traditional medicine and acupuncture, is taught at Chinese medical colleges. (Testimony of Jun Wu Xue.)

   
   

9. But, Applicant indicated on her application that she received her acupuncture education at the Academy of Medical Science of Jsinan. No detailed information was presented on the courses at the academy, its faculty, and its current accreditation status.

   
   

10. On September 22, 1981, the Department wrote Applicant requesting, among other things, an official transcript from her medical school. It relied on Rule 21-12.03, Florida Administrative Code, as providing authority for its request. Chapter 21-12 was filed with the Department of State on September 18, 1981. Applicant has been unable to supply the requested transcript because she attended medical school before the Chinese civil war. Institutional records, such as those kept at medical schools, were lost or destroyed by the war. (Testimony of Kuan-Chu Kuo; R-1.)

    
    

11. On September 22, 1981, the Department also wrote the Chinese Academy of Medical Science of Jsinan and asked for their latest catalog of courses and their description, a list of their current faculty members and their curriculum vitae, the name and location of their educational and/or governmental accrediting agency, a copy of their latest accrediting report, and a clearly defined course of study for acupuncture. This request for documentation was made pursuant to the procedure prescribed in Rule 21-12.08 a new rule adopted for evaluating and approving acupuncture schools. As of the date of hearing, the academy had not responded to the Department's request. (R-1.)

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s120.57(1), Fla. Stat. (1981).

    
    

13. When an agency has stated the grounds for its proposed denial of a license, the applicant has the burden of establishing entitlement to the license. Rule 28-6.08(3), F.A.C. See, Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

14. Section 468.323(2), Florida Statutes (1981), provides in relevant part, that:

    
    

    (2) A person may become certified to practice acupuncture if he:

    1. Furnishes satisfactory evidence to the department that he:

       1. Has completed a 2-year program of education in acupuncture in a school or col- lege approved by the department; . . . .

    2. Passes an examination, administered by the department, which tests the applicant's competency and knowledge of the practice of acupuncture. . . . (e. s.)

    
    

15. On September 18, 1981, the Department adopted and filed Chapter 21-12, its comprehensive new rules governing the administration of the acupuncture licensing program authorized by Part VII, Chapter 468, Florida Statutes (1981). These rules did not become effective until 20 days thereafter. See s120.54(12)(a), Fla. Stat. (1981). In proposing to deny Applicant's request to sit for the examination, the Department relies, in part, on the criteria contained in these new rules. But, since these rules were not adopted until after Applicant filed her application, they cannot be used as a basis for denial. 2/ Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976); See also Gulfstream Park Racing Association, Inc.

    v. Division of Pari-Mutual Wagering, 407 So.2d 263, 265 (Fla. 3rd DCA 1981).

    
    

16. Consequently, Applicant's failure to supply a school transcript--a requirement imposed only by Chapter 21-12--cannot justify denial of her application to take the examination. But, Section 468.323(2)(b) imposes a statutory requirement that an applicant's acupuncture education be completed in a school or college "approved by the [D]epartment." In this case, Applicant failed to show that the school where she obtained her acupuncture education has been or should be approved by the Department. Insufficient evidence was presented on the quality and nature of the acupuncture educational program offered at the Academy of Medical Science of Jsinan. Without detailed information on the acupuncture program, a reasoned accreditation judgment cannot be made. Since the record does not demonstrate that the Department should [for purposes of Section 468.323(2)] approve the academy at Jsinan, Applicant's application to take the acupuncture examination must be denied. But, if after receiving additional information the Department approves the academy, Applicant should be allowed to sit for the next acupuncture examination.

    
    

17. The Department's proposed findings of fact are adopted to the extent they are incorporated in this Recommended Order; otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issue presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the application of Kuan-Chu Kuo to take the acupuncture examination be denied. If and when the Department approves the acupuncture school attended by Applicant, she should be allowed to take the examination without further delay.

DONE AND RECOMMENDED this 23rd day of March, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1982.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

2/ Statutory changes will, however, ordinarily apply to applications pending at the time of enactment. See, Department of Environmental Regulation v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980)

COPIES FURNISHED:

Kuan-Chu Kuo

5506 Southwest 133 Place

Miami, Florida 33175

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003205

Orders for Case No: 81-003205