STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA ALA VEDRA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1337

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 25, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John H. Duhig, Esquire

Attorney at Law

702 National Bank Building

25 West Flagler Street Miami, Florida 33130-1770

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to temporary licensure as a physician assistant pending her successful completion of the licensure examination.

PRELIMINARY STATEMENT

Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. That Order denied Petitioner's request that she be temporarily licensed as a physician assistant pending the successful completion of the examination. Petitioner timely challenged the denial of her request for temporary licensure and this proceeding followed.

At the formal hearing Petitioner testified on her own behalf and presented eight exhibits, each of which was accepted into evidence. Respondent presented the testimony of Dr. Gary Winchester and presented one exhibit, a copy of Petitioner's application, which was accepted into evidence.

A transcript of the proceeding has been filed. The proposed findings of fact submitted on behalf of Respondent are adopted in material part by this Recommended Order. Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner was found by Respondent to be eligible to sit for the licensure examination. Petitioner also requested a temporary certificate as a physician assistant, which request was denied by the Respondent.

   
   

2. In requesting temporary certification, Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows:

   
   

   (b)1. . . . [T]he department shall examine each applicant who the board certifies:

   1. Has completed the application form ...

   2. Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization ..

   3. Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991.

   4. Was a resident of this state on July 1, 1990. . .

   1. The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1.

      
      

   2. Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. The Order also denied her request for temporary certification because she had not recently worked in the field of medicine and because she had not received significant continuing education in the interim. The Board determined that Petitioner had not established her ability to currently practice as a physician assistant with reasonable skill and safety to the public. The Board determined that Petitioner could establish that ability by passing the licensure examination.

      
      

   3. Petitioner graduated from medical school in Ecuador in December 1975. Between March 1976 and April 1980, she was in medical residency in Ecuador. She has not practiced medicine since April 30, 1980, when she moved from Ecuador to the United States.

      
      

   4. Physician assistants in Florida work under the supervision of a supervising physician. A physician assistant is permitted to examine patients, to diagnose conditions, and to prescribe treatment plans. Because of the rapid changes that occur in the field of medicine, the current ability to practice as a physician assistant should be demonstrated. The applicant can demonstrate that current ability through recent practice, through recent education, or through examination.

      
      

   5. Petitioner's testimony and the documentary evidence she presented at the formal hearing fail to establish that she is currently able to practice as a physician assistant with reasonable skill and safety to the public. She has not practiced medicine since 1980. Her participation in a program at the University of Miami School of Medicine in December 1991 and her volunteer work for Dr.

      Rodolfo Binker from August 1991 to November 1991, do not establish her current ability. The evidence offered by Petitioner as to continuing medical education likewise fail to establish her current ability. Both the quality and the quantity of her continuing education fail to meet the level of continuing education required of physician assistants.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   7. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to the temporary licensure she seeks. See, Rule 28- 6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977. Petitioner has failed to meet that burden.

      
      

   8. Respondent has discretion in determining whether to issue a temporary certificate pursuant to Section 458.347(7)(b)2., Florida Statutes. In this proceeding, Respondent established that it clearly was acting within its discretion in denying Petitioner's application for temporary certification.

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 temporary certification as a physician assistant.

DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993.

COPIES FURNISHED:

John H. Duhig, Esquire

702 National Bank Building

25 West Flagler Street Miami, Florida 33130-1770

Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 93-001337

Orders for Case No: 93-001337