STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE WILLIAM VATH, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1310

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE,)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on August 2, 1993, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

BOND & BOYD

411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302

For Respondent: M. Catherine Lannon, Esquire

Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner should be deemed eligible to sit for the physician assistant certification examination. Embodied within that general issue is a consideration of whether the Petitioner has established that he has an adequate and appropriate medical education, as required by the statutory authority cited below and whether he is not eligible to take the examination for certification as a physician assistant because of failure to pay the required fee.

PRELIMINARY STATEMENT

The Petitioner seeks certification in Florida as a physician assistant from the Respondent agency. That application was denied by the Board of Medicine's (Board) order entered on February 9, 1993, and the Petitioner requested a formal proceeding to contest that denial. The proceeding was originally scheduled for final hearing on June 14, 1993 but after two continuances, was heard on August 2, 1993.

The cause came on for hearing as noticed, at which the Petitioner presented his own testimony and 25 exhibits, which were admitted into evidence. The Respondent presented the testimony of two witnesses, Dorothy J. Faircloth, Executive Director of the Board; and Gary Winchester, M.D., Chairman of the Physician Assistant Committee of the Board and a member of the Board. The Respondent's composite exhibit 1 was admitted into evidence. The parties elected not to order a transcript of the proceeding and agreed to an abbreviated schedule to file exceptions to this Recommended Order so that the matter could be expeditiously considered by the Board before the examination was scheduled to be administered. Subsequent to the hearing, the relevant examination was postponed by action of the Board. The parties submitted Proposed Recommended Orders, which were considered in rendering this Recommended Order. The proposed findings of fact are specifically ruled upon in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner made application to the Board and its physician assistant committee for certification as a physician assistant, pursuant to Section 458.347(7)(b), Florida Statutes. After three appearances before the committee, the committee recommended and the Board voted to deny his application by order of February 9, 1993. That order indicated that the Petitioner had failed to demonstrate to the committee's satisfaction that he had received a medical education, as the term is defined and employed in Chapter 458, Florida Statutes (specific citations omitted). The Petitioner timely sought a formal proceeding to contest that denial, which resulted in the matter being referred to the Division of Administrative Hearings and the undersigned Hearing Officer for conduct of that proceeding.

   
   

2. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering the provisions of Chapter 458, Florida Statutes, and related rules involved in regulating entry and licensing of persons entering the physician assistant professional field. Among other duties, the Respondent agency is charged with ascertaining whether an applicant for certification has completed an appropriate medical education so as to be entitled under the relevant statutes for admission to the certification examination. Such a determination was made in this case, which resulted in the denial of the application and this formal proceeding.

   
   

3. In addition to finding in its order of February 9, 1993 that, in effect, the medical education of the Petitioner was deficient under the relevant statutes, the Board also determined that there were discrepancies in the applications on file with the Board and in the supporting documentation and testimony before the Physician Assistant Committee (Committee). The Board also determined that due to the extended length of time since the Petitioner last worked in the field of clinical medicine and because of the length of time since any significant medical education or training had taken place, the Petitioner had not established that he was currently able to practice as a physician assistant with reasonable skill and safety to the public, as envisioned by Sections 458.331(4) and 458.301, Florida Statutes (1991).

   
   

4. Prior to the hearing, the Hearing Officer granted a motion to amend the denial order to add as a basis for denial the Petitioner's alleged ineligibility to sit for the examination for certification because of failure to pay the required fee. See Section 458.347(7)(b), Florida Statutes. A passing score on the certification examination is a prerequisite to being certified as a physician assistant.

5. There are certain discrepancies between the applications that the Petitioner filed with the Board, as well as with regard to documentation submitted to the Committee and to the Board. The Petitioner filed three applications with the Board. On each, he, in essence, swore that he had carefully read the questions on the application, had answered them completely without reservation, and that all statements were true and correct. On all of the applications, the questions required the applicant Petitioner to be specific as to the medical schools attended, to account for each year, and to list all universities and colleges attended where medical training was received. On the first application, the Petitioner stated, in response to the question to list all universities or colleges attended or where medical training was received, that he attended Universidad Central De Este (UCE) from November 1977 to August 1980, and that he attended CETEC University from August 1980 to June 1982. When he appeared before the Committee, he acknowledged also attending classes or receiving training at Ross University (formerly known as the University of Dominica). After that appearance before the Committee, he filed a second application and in response to the same question concerning his medical education, he responded that he had attended UCE from November 29, 1977 to August 24, 1980; that he attended the University of Dominica (Ross) from August 24, 1980 to August 7, 1981; and that he attended CETEC University from August 24, 1980 to June 12, 1982. Thus, he claimed that his attendance at Ross and CETEC actually overlapped. Documentation submitted, contained in Petitioner's exhibit 17 and in the Respondent's composite exhibit, reveals that he was not accepted as a student at CETEC until August 7, 1981, however.

   
   

6. Subsequently, he filed a third application. On this application, he, in response to that same question, as pertinent to this issue, listed attendance at UCE from November 29, 1977 to August 24, 1980; at University of Dominica from August 24, 1980 to August 6, 1981; at CETEC from August 7, 1981 to June 12, 1982; at CJ Institute from April 26, 1982 to June 8, 1982; at Adelphi University from April 4, 1981 to June 12, 1981; and CETEC (graduation) on June 12, 1982. The Petitioner, at the hearing, admitted that he had not completed an application listing Ross University until after the Committee already knew he had attended Ross. When asked at the hearing why he omitted Ross from his first application, he testified that he did not put it on the application because he did not consider that he had attended Ross. This response as to why he had made a misrepresentation on his initial application is lacking in credibility. His own testimony and evidence established that he took examinations at Ross on August 24 and 25, 1980, but he paid $9,000.00 in entrance fees to Ross in the fall of 1980, that Ross arranged a psychiatry clerkship, that he took a course in physical diagnosis specifically because Ross informed him that he needed to do so in order to take future medical clerkships; that he paid $75.00 in the spring of 1981 for malpractice coverage for those clerkships under the alleged auspices of Ross and that he was still considered a student at Ross when he began his pediatric clerkship. If he did all of this educational effort supposedly in connection with Ross University, according to his own testimony and other evidence, it is unbelievable that he could not have considered that he had attended Ross University when he filled out the subject application.

   
   

7. His own sworn affidavit submitted to the Board explaining why he did not list Ross on the applications stated that he did not list Ross University because he did not think that there were any transcripts to indicate that he had attended Ross. He testified and stated on affidavits to the Board that the reason he transferred from Ross to CETEC was because of a sudden demand by Ross for an additional $24,000.00 in order for him to continue his education there, in excess of the amount the initial agreement had provided for. Even if that is

   the case, it does not change the fact that, by his own testimony, he knew that he had attended Ross University and did, in fact, attend it. Thus, under all of these circumstances, it is apparent that, for whatever reason, he intentionally misrepresented this portion of his educational history. Another discrepancy or area of misrepresentation occurred on the three applications concerning the medical clerkships which the Petitioner supposedly completed. On all three applications, he was requested to specifically describe and account for each clerkship, giving specific dates, type of rotation, the name and location of the hospital, institution or individual where or with whom the clerkship was performed or supervised. He was required to list all affiliated universities or colleges. In responding to this question, he listed on his first application the following:

   
   

   Psychiatry October 13, 1980 to January 1,

   1981. Pediatrics July 13, 1981 to December

   4, 1981. Internal medicine September 7, 1981

   to October 5, 1981. Internal medicine

   October 5, 1981 to February 1, 1982. Surgery

   February 1, 1982 to April 30, 1982. OB/GYN

   May 1, 1982 to June 6, 1982.

   
   

8. On the second application, he added a third internal medicine clerkship stating that it took place from October 3, 1981 to February 28, 1982. It thus overlapped his surgery clerkship. On his fourth application, he added a clerkship for radiology, showing that that clerkship had taken place from February 1, 1982 to April 30, 1982. During parts of February 1982, the Petitioner was taking clerkships in three subject areas at the same time, internal medicine, surgery, and radiology, if the disclosures on his third application are true. In discussing the radiology clerkship on cross- examination, the Petitioner acknowledged that it was somewhat of a combined surgery and obstetrics and gynecology clerkship as part of the same program.

   
   

9. The Petitioner received an M.D. degree from CETEC. He began his medical education at UCE. He attended this university as a resident student on its campus. His transcript from UCE shows a lack of a passing score on nine courses. Ross University wrote a letter to him dated June 16, 1981, which he, in turn, provided to the Board, to the effect that he needed transcripts from UCE showing passing scores in histology, biochemistry, neuroanatomy, micro- biology, or that he would otherwise receive F's in those courses. However, the later CETEC transcript shows that CETEC "convalidated" those four courses, even though there was no evidence that he passed them. Convalidation means that the courses were accepted as having been taken and passed at another school. In fact, the accuracy and sufficiency of his medical education is complicated by the fact that his CETEC transcript credits him with courses as having actually been taken at CETEC that even the Petitioner acknowledges were not actually taken at CETEC, such as: community health III and IV, human behavior III, physiopathology, and family medicine. His speculation as to what courses he took at UCE must have counted at CETEC misses the point that CETEC does not "count" them as convalidated, but as taken at CETEC. These discrepancies bring into question the validity of his CETEC education and the documentation submitted regarding it. Whether the inaccuracy is the Petitioner's or attributable to the fault of CETEC is of no moment in determining whether the Petitioner actually received the medical education claimed or the medical education actually "documented".

10. The Petitioner called into question Ross University's record-keeping accuracy, blamed Ross for changing its requirements, for losing his records, and allegedly reneging on certain promises, such as counting courses he supposedly previously took at UCE. However, the Petitioner has not shown any explanation of the CETEC record-keeping "errors" which give him credit for completion of courses at CETEC which he did not even take at CETEC, for his completion of courses at UCE which UCE documents as incomplete, nor for his completion of courses or credits at Ross for which there is no documentation either. It is also noted that he "attended Ross" without ever going to its campus and attended "CETEC" by only appearing on campus for his graduation.

    
    

11. Additionally, besides the discrepancies in the academic courses established, there were a number of discrepancies related to the clerkships and preparation for the clerkships. The first of these was that he stated that he had to take a course in physical diagnosis before he could take a pediatrics clerkship through Ross. He therefore obtained an old family friend, Dr. Fleisher, to teach him physical diagnosis. Additionally, he took two nursing courses in physical diagnosis at Adelphi University. Dr. Fleisher is not an M.D., however, but rather is a podiatrist. Dr. Winchester, testifying as an expert in the medical field at hearing, established that a podiatrist cannot teach a physical diagnosis course sufficiently detailed and thorough for a medical student seeking an M.D. degree because a podiatrist is trained, experienced and qualified only to practice at or below the knee. When podiatrists are on hospital staffs in Florida, they may admit patients for surgery, but they must have an M.D. perform the history and the physical examination because of their limited expertise. See, Section 461.003(3), Florida Statutes.

    
    

12. A medical student cannot obtain the appropriate education and physical diagnosis by taking a nursing course. In fact, physical diagnosis is an integral part of any quality medical education program and, although it may not be taught as a separate course in all of the accredited medical schools in the United States, it is taught as part of the ongoing education by the faculty of the medical school itself. Students are not sent off to find their own tutors or to attempt to obtain physical diagnosis training from taking nursing school courses in medical schools or medical education programs which are deemed in Florida to be programs or schools which have furnished their successful graduates an adequate medical education. It is thus found, based upon Dr. Winchester's testimony, that the Petitioner's education under the auspices of Ross or CETEC, whichever it was, did not constitute a medical education with regard to the physical diagnosis education.

    
    

13. The clerkships were not taught by faculty members of medical schools or in teaching hospitals. In fact, the Petitioner began the pediatrics clerkship under the auspices of one school and finished under the auspices of another school. As established by Dr. Winchester at hearing, this would be unheard of in an accredited medical school in the United States. Since the clerkships are supervised by faculty of the medical school, a student would not transfer medical schools without having to change from one school's clerkship program to another. In addition, the clerkships are characterized by physicians writing letters of verification as to their clerkships or observerships. An observership is an educational experience in which a student only observes what is going on with regard to a particular procedure and does not actually participate. Finally, the testimony revealed that the Petitioner received clinical credit for taking an examination preparation course. This, too, would be unacceptable in a legitimate medical education setting, as shown by Dr. Winchester.

14. Additionally, it is noted that three of the clerkships, internal medicine, surgery, and radiology all overlapped in some point in time, with all three being taken during February of 1982. A clerkship is essentially a full- time experience. A medical education, as that term is used in Florida, does not contemplate taking multiple clerkships at the same time. It is expected that a medical student will give full attention to the area of study and to the patients to which the student is assigned during the clerkship. This cannot be done if three clerkships are being performed at the same time. That this might be perceived as inadequate, even by the Petitioner, is evident in his letter of November 11, 1992 to the Board in which he stated that he had not mentioned his radiology clerkship previously because it overlapped his surgery clerkship. In summary, as to the clerkships, it is determined that they were not of the quality required to be considered a medical education in the State of Florida. This finding is based upon the testimony of Dr. Winchester, which is accepted over that of the Petitioner.

    
    

    Ability to Practice with Reasonable Skill and Safety

    
    

15. The testimony and evidence of record does not indicate that the Petitioner has had an adequate medical education. In addition to the inadequacies in his medical education described in the above Findings of Fact, he has not practiced medicine since his graduation from medical school in 1982 nor has he had employment or practice experience related to the field of medicine. He has not worked in a hospital, doctor's office, clinical laboratory, or any other setting in which he might keep his medical knowledge current. He has taken a large number of continuing medical education courses of late, since he filed his initial application. The concept of continuing medical education, however, is that a person should be continually building on an actual basic medical education. The Petitioner has not demonstrated that he is currently able to practice medicine with reasonable skill and safety because of this lack of continuing medical experience and education when added to the basic inadequacy of his underlying medical education, as proven by the evidence in this record.

    
    

    Examination Fee

    
    

16. Section 458.347(7)(b)1., Florida Statutes, requires that an applicant pay the application fee and the examination fee. This statutory provision specifically provides that the applicant must pay the fee for the examination and if he is later deemed ineligible to take the examination, then the fee will be refunded. The Petitioner admits that he never paid the examination fee. He insists that he should not have to pay the fee until after he is declared eligible for the examination. While one can understand the applicant feeling that he should not have to pay the fee until after being ruled eligible, the legislature decided otherwise and directed that the fee be paid in order for an applicant to be considered eligible for the examination on a threshold basis. Ms. Faircloth testified that the names of students who were to take the examination have to be sent to the Bureau of Examination Services prior to the examination so that expense and other arrangements can be made for the correct number of examination booklets and proctors for the practical examination. This is a practical policy reason underlying the passage of the statute providing for the advance payment of the fee and for the manner in which the agency interprets that statute.

    Educational Commission for Foreign Medical Graduates Examination.

    
    

17. The Petitioner submitted evidence that he had obtained a score of 65 on the Educational Commission for Foreign Medical Graduates Examination (ECFMGE). He thus maintained at hearing that he was eligible for certification as a physician assistant simply because he had received a score of 65. This evidence was presented and admitted over objection by the Respondent on the grounds that the Respondent had not been placed on notice of such issue because it was not raised in the petition. Be that as it may, the Petitioner has failed to establish eligibility for examination under that provision for the reasons stated in the Conclusions of Law below.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

19. The Petitioner filed an application for certification as a physician assistant, pursuant to Section 458.347(7)(b), Florida Statutes. This is a special provision which provides for the certification as a physician assistant (PA) of unlicensed physicians graduated from foreign medical schools. This one- time special avenue of licensure applied only to persons who applied for certification as PA's between July 1, 1990 and June 30, 1991. The Petitioner was one of those applicants.

    
    

20. The Board has been granted discretionary authority by the legislature to regulate an occupation which is potentially injurious to the public and is subject to the police power. The ability to practice medicine is not an absolute right but rather is a privilege and is subject to the police power because the practice of medicine can be potentially injurious to the public. See, Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985). The agency has the authority to determine fitness of those seeking licensure. Astral Liquors, Inc. v. Department of Business Regulation, 463 So.2d 1130 (Fla. 1985).

    
    

21. The Petitioner bears the burden of demonstrating his fitness to practice medicine as a PA and his compliance with the required conditions. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

22. Section 458.347(7)(g), Florida Statutes, provides that the Board may deny certification if a PA has been guilty of or is being investigated for any act which constitutes a violation of Chapter 458, Florida Statutes. Additionally, Section 458.347(11), Florida Statutes, provides for denial of certification if the Board determines that a PA has violated any provision of Chapter 458, Florida Statutes. Therefore, any violation of the provisions of Section 458.331(1), Florida Statutes, the disciplinary provisions of the medical practice act, by an applicant, are grounds for denial. See, Section 458.331(2), Florida Statutes. Section 458.311(1)(d), Florida Statutes, provides that a PA must not have committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician, pursuant to Section 458.331, Florida Statutes, and that he must be a graduate of a medical school, as provided by Section 458.311(1)(f), Florida Statutes.

23. Section 458.331(1)(a), Florida Statutes, provides for the denial of licensure of any person who attempts to obtain a license by fraudulent misrepresentation. Further, Section 458.331(1)(gg), Florida Statutes (1992 Supp.), provides for denial of a license if a person misrepresents or conceals a material fact at any time during any phase of a licensing process or procedure. (Subsection (gg) in the 1992 Supp. was Subsection (hh) in the 1991 statutes).

    
    

24. It is concluded that the Petitioner knowingly omitted listing Ross University in his first application and knowingly omitted listing any radiology clerkship on the first two applications. His explanation for not listing Ross because he did not consider that he had attended Ross is lacking in credibility, particularly in light of his extensive testimony at the hearing of his ties with Ross University, both financial and academic, and his explanation of the reason he omitted mentioning the radiology clerkship on the first two applications buttresses the finding of a violation. Regardless of whether his misrepresentations were actually fraudulent by being intentionally untruthful or inaccurate as executed, it is clear that the misrepresentations and concealment of material facts were made, as prohibited by Subsection 458.331(1)(gg), Florida Statutes. Thus, this is a basis for denial of licensure.

    
    

25. Section 458.311(1)(f), Florida Statutes, requires that an applicant be a graduate of a medical school. The Board has established in prior cases its clear authority to investigate the underlying education supporting the degree document which indicates that a person is a graduate of a medical school to ascertain whether that person actually obtained a medical education. See, Vila

    v. Board of Medical Examiners, Case No. 85-2861R (7 FALR 5529); and Newcomer v. Board of Medical Examiners, Case No. 85-2464R (7 FALR 5225). Both opinions stand for the proposition that the Board may look behind a medical degree to see if there is actually an adequate and appropriate medical education supporting it, but they also establish the Board's authority to review clerkships specifically to see if they constitute clinical, medical education, as that term is used and required in the Florida Statutes.

    
    

26. The Petitioner has failed to meet his burden of proof of showing that he actually received a medical education, as that term is used and required in the State of Florida. First of all, he obtained credits at some schools for courses taken at other schools, which courses were shown on the first school's transcript as not having been completed or passed. Further, although he recognized, and Dr. Winchester asserted, that physical diagnosis was a necessary predicate for all of the clerkships, except for psychiatry, the evidence is clear that the Petitioner did not receive an education from a medical school in this very crucial area. Rather, he sought to improvise this important element of an educational experience, consisting of tutoring by a podiatrist in the area of physical diagnosis, in conjunction with the taking of two nursing courses at Adelphi University in the area of physical diagnosis. While these courses may have been worthwhile, they have not been established to be education provided by a medical school in a subject required by medical schools in the manner established by the testimony of Dr. Winchester to be necessary for this to be considered an element of an appropriate medical education.

    
    

27. The clerkships were not obtained in teaching hospitals nor was there evidence that they contained sufficient time and quality of education and necessary educational links with a medical school so as to constitute a medical education. Specifically, the fact that the Petitioner was purportedly taking three different clerkships at the same time indicates that the quality and

    intensity of the experiences was not comparable to that given in an accredited medical school, as does the fact that he was given clinical credit for an examination preparation course.

    
    

28. Although the Petitioner has not applied for his education to be evaluated based upon Section 458.314, Florida Statutes, which is available if a foreign medical school seeks to be certified in the State of Florida, the Board's rule, which is promulgated as an implementation of that statute, sets forth the criteria for an adequate medical education. In Rule 21M-42.007(1)(d), Florida Administrative Code, reference is made specifically to the need for introduction into the fundamentals of medical interviewing, physical examination, and diagnosis. This rule characterizes the need for clinical experiences to be "intensive" and for direct supervision by the clinical faculty of the school. The rule, at Subsection 21M-42.007(5), Florida Administrative Code, also provides that the faculty must evaluate the student's performance. There is no evidence in this record that the student's performance was evaluated, nor were evaluations provided to CETEC of the clinical experiences which the Petitioner received. Interestingly, there are of record some evaluations provided for the Petitioner, but they were sent to Ross University, a school which he testified at hearing that he did not consider himself as having attended. Section 21M-42.0009(5), Florida Administrative Code, relating to clinical teaching facilities, at paragraph (a), specifically provides that the medical school must have adequate resources to provide clinical instruction to its medical students. Further, paragraph (5)(d) specifically provides, "[i]t is imperative that the academic programs remain under control of the faculty of the medical school in all medical school-hospital relationships." There is no competent, substantial evidence that the clinical clerkships taken by the Petitioner were actually supervised by the faculty of any medical school, let alone that the programs were under the control of such faculty.

    
    

    Ability to Practice with Reasonable Skill and Safety.

    
    

29. The evidence is insufficient to establish that the Petitioner is able to practice with reasonable skill and safety. The evidence is insufficient to establish that he actually received a medical education, and the evidence clearly shows that he has had no practice of medicine or other clinical experience in the field of medicine since 1982, the date of his purported graduation from medical school. Although he obtained a significant number of continuing medical education credits in fairly recent times in order to buttress his application effort, this is insufficient to make up for the lack of clinical experience and the lack of the underlying medical education upon which continuing medical education courses and credits must build. See, Sections

    458.301 and 458.331(4), Florida Statutes.

    
    

    Examination Fee

    
    

30. Section 458.347(7)(b), Florida Statutes, clearly requires that to be eligible to take the examination, an applicant must pay the fee. The Petitioner admittedly has not done so. He had adequate notice of this issue prior to hearing and could have paid the fee but refused to do so. The statute providing for the advance payment of the examination fee does not require the agency or the State to extend credit on his behalf or to make financial arrangements or otherwise so as to allow his participation in the examination in the absence of payment for those arrangements. Advance payment of the fee was shown to have a reasonable policy rationale involved in defraying the advance expenses necessary

    to produce and administer the examination and to accurately inform the agency and examination personnel of the identity and number of the examination candidates.

    
    

31. The Petitioner has also failed to establish eligibility for examination based upon his obtaining a score of 65 on the ECFMGE. Section 33 of Chapter 90-134, Laws of Florida, did set forth an avenue for licensure as a PA for foreign medical graduates who obtain at least a 65 score on the ECFMGE. However, that law took effect on October 1, 1990, and an injunction was obtained by the Florida Academy of Physician Assistants on October 3, 1990, from the Circuit Court in and for Leon County, Florida, enjoining the Department of Professional Regulation, its agents and employees, from taking any action to implement, enforce, or give effect to Section 33, Chapter 90-1234, Laws of Florida. The Petitioner did not file his application pursuant to this section of the law until late November of 1990. He was immediately written a letter dated December 4, 1990, informing him that the application could not be processed by the Department because of the injunction. His fee was returned. Another letter stating the same thing was sent to him on January 4, 1991. That provision of law at issue was repealed on April 23, 1991. Section 2, Chapter

    91-22, Laws of Florida. The injunction was then dissolved by the filing of a voluntary dismissal only after the repeal took effect. It is found that, although the new law had taken effect as of October 1, 1990, its implementation was enjoined until it was repealed. At the time the Petitioner filed his application, it was not allowed to be implemented and his fee was returned to him.

    
    

32. Even if the injunction had not been in effect or if it had been lifted prior to the repeal of the provision at issue, the question of which law would apply to ruling on the application would remain. The general principles concerning this issue contained at 51 AM JUR 2d Licenses and Permits, S.46, provide that a change in the law occurring during the pendency of an application will apply to consideration and ruling upon that application so that the law as changed, rather than as it existed at the time of filing of the application will determine whether a license should be granted. However, if action on an application is unreasonably delayed until after a change in the law becomes effective or if the appropriate officer arbitrarily fails to perform a duty to issue the license promptly when the application for the license conforms to the law in existence at the time of filing, then law at time of filing will ordinarily control. The Florida cases follow these general principles. In summary, the agency is generally authorized to apply the law in effect at the time the application is ruled upon. Bruner v. Board of Real Estate, Department of Professional Regulation, 399 So.2d 4 (Fla. 5th DCA 1981); Turro v. Department of Health and Rehabilitative Services, 458 So.2d 345 (Fla. 1st DCA 1984). The case of Department of Health and Rehabilitative Services v. Petti-Eifert, 443 So.2d 266 (Fla. 1st DCA 1983), provides that the agency is permitted to apply the law in effect at the time the application is filed, but it must apply that law if it had previously agreed to do so or if there was an unconscionable delay in the processing of the application for strategic advantage. See, also, Attwood v. State Ex Rel. Buchert, 53 So.2d 101 (Fla. 1951); Goldstein v. Sweeney, et al., 42 So.2d 367 (Fla. 1949).

    
    

33. Moreover, it is a basic principle of law that a change in the law is to be applied prospectively unless the legislature passing the law expressly declares that it intends the law to be applied retroactively. There is such an express declaration in Chapter 91-22, Laws of Florida. This law took effect on April 23, 1991. Section 2 of Chapter 91-22, Laws of Florida, provides that the new law applies to any person who "[h]as applied for certification as a

    physician assistant in this state between July 1, 1990, and June 30, 1991." Thus, it is the clear intent that the provisions of Chapter 91-22, Laws of Florida, be applied retroactively. Accordingly, applying Section 2 of Chapter 91-22, Laws of Florida, to the Petitioner's application, he is clearly not eligible for licensure by virtue of having obtained a grade of 65 on the ECFMGE.

    
    

34. Accordingly, for the reasons expressed in the above Findings of Fact and Conclusions of Law, it is concluded that the applicant has not established eligibility to sit for the certification examination. It is also not established that he is eligible for certification as a PA even should he take and pass the examination based upon the above Findings of Fact and Conclusions of Law.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered by the Board of Medicine denying the Petitioner's application for certification as a physician assistant.

DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1310

Petitioner's Proposed Findings of Fact 1-5. Accepted.

6. Rejected, as not in itself dispositive of the issue presented.

7-15. Accepted.

16. Rejected, as unnecessary and immaterial. 17-23. Accepted.

24. Accepted, but not itself dispositive of material issues.

25-30. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and to some degree not supported by the preponderant evidence of record.

31-33. Rejected, as immaterial. 34-35. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, although the fact that he took a physical diagnosis course from Dr. Fleischer is accepted.

2. Rejected, as not itself materially dispositive of the relevant issues.

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in itself dispositive of material issues.

39-43. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in themselves materially dispositive findings of fact.

44. Rejected, as not supported by the preponderant evidence of record.

45-46. Accepted, but not in themselves materially dispositive.

47. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

48-50. Accepted, but not in themselves materially dispositive findings of fact.

51-60. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accord with the preponderant evidence of record.

61-73. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in their entirety materially dispositive.

1. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted, but not itself material, and subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Accepted, but not itself materially dispositive. 77-84. Accepted, in part, but subordinate to the Hearing

Officer's findings of fact on this subject matter and not in themselves materially dispositive.

85. Accepted.

86-98. Accepted, but not in themselves materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter.

99-101. Accepted, but not in themselves material. Respondent's Proposed Findings of Fact

1-31. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

COPIES FURNISHED:

Robert J. Boyd, Esquire BOND & BOYD

411 East College Avenue Post Office Box 26 Tallahassee, FL 32302

M. Catherine Lannon, Esquire Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Ms. Dorothy Faircloth Executive Director Board of Medicine

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-001310

Orders for Case No: 93-001310