STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS VERDEZA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4257

) BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 5, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mr. Carlos Verdeza, pro se.

4712 Southwest 144th Avenue Miami, Florida 33175

For Respondent: Alan Grossman, Esquire

PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's temporary certificate to practice as a physician assistant is null and void.

PRELIMINARY STATEMENT

By letter dated February 9, 1994, the Board of Medicine advised Petitioner that due to his late payment of the fee for the examination, his temporary certificate to practice as a physician assistant was rendered null and void.

Petitioner timely requested a formal hearing regarding that determination. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner Carlos Verdeza testified on his own behalf, and Bobbie Sawner testified on behalf of Respondent. Additionally, Petitioner's exhibits numbered 1-3 and Respondent's exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner applied for certification as a physician assistant by application dated June 29, 1991.

   
   

2. Under the statutory scheme regulating physician assistants, in certain circumstances, the Board of Medicine may grant temporary certification to applicants for licensure. The temporary certification is good only until the applicant receives notice of the applicant's scores received on the first available examination.

   
   

3. At its meeting of October 30 through November 1, 1992, the Board approved Petitioner for temporary certification contingent upon his completion of specified requirements prior to such temporary certification and his completion of 25 hours of continuing medical education after issuance of such certification. Petitioner completed the specified requirements for issuance of the temporary certification and was issued a temporary certificate. Petitioner was so notified by letter dated October 4, 1993.

   
   

4. Petitioner was first notified of the need to pay a required fee for the licensure examination by letter dated February 27, 1993. That letter set forth that the fee must be paid by March 31, 1993. Petitioner did not pay the fee by that deadline.

   
   

5. On June 8, 1993, Petitioner was notified that the deadline for payment of the required examination fee had been moved to June 25, 1993. The extension had been given because the Board was still involved with processing applications for this special licensure program. Petitioner did not pay the fee by that deadline.

   
   

6. On October 11, 1993, Petitioner was sent another letter notifying him that the deadline had been extended once again. This time the deadline was set for November 15, 1993.

   
   

7. The notice sent to Petitioner specified three times that the required examination fee must be received in the office of the Board by November 15, 1993. It specifically informed Petitioner that a postmark of November 15, 1993, would not be sufficient. Furthermore, the notice informed Petitioner that if he failed to submit the required examination fee in a timely fashion, he would not be eligible to take the licensure examination.

   
   

8. Although Petitioner testified that he was confused with regard to when the required fee could be sent, it was established that he could read the letter and that he understood that his failure to timely pay the examination fee would result in his not being permitted to take the licensure examination.

   
   

9. Petitioner did not have the money for the required examination fee until November 14, 1993.

   
   

10. Petitioner mailed the examination fee from Miami to the Board office in Tallahassee by certified United States mail on November 15, 1993. Although Petitioner testified that he believed the fee would be delivered the same day or the next day, Petitioner did not use any type of special delivery to provide same day or next day delivery at the Board's office.

    
    

11. The fee submitted by Petitioner in the form of three Travelers Express Company checks was received in the Board's office on December 22, 1993.

12. Petitioner did not submit the required examination fee in a timely manner for any of the three deadlines set by the Board.

    
    

13. With the exception of one case involving an applicant with a heart condition, the Board has uniformly denied any request for the late payment of the required examination fee.

    
    

14. If he does not take and pass the first available licensure examination, Petitioner will not be able to receive his permanent certification as a physician assistant.

    
    

15. The licensure examination for persons in Petitioner's category has not yet been given by the Board. Therefore, none of the applicants for certification as physician assistants through this special licensure program have yet been tested.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

17. Section 458.347(7)(b)2, Florida Statutes, gives the Board discretion to grant temporary certification to an applicant who meets the statutory requirements to sit for the physician assistant certification examination as set forth in Section 458.347(7)(b)1. Subsection (7)(b)1.a, Florida Statutes, requires each applicant to submit an examination fee. Subsection (7)(b)2, Florida Statutes, provides that any temporary certificate shall expire upon receipt of notice of that applicant's scores on the first available examination following certification by the Board and that an applicant who fails the examination is no longer temporarily certified and is ineligible for any further temporary certification.

    
    

18. It is clear that the statutory scheme set forth in Section 458.347(7)(b), Florida Statutes, provides for temporary certification only for those applicants who may become entitled to permanent certification by passage of the licensure examination. Petitioner's failure to submit the required examination fee by any of the three deadlines established by the Board results in Petitioner being ineligible to take, and therefore pass, the licensure examination. Without passing the examination, Petitioner cannot obtain certification as a physician assistant pursuant to the special program pertaining to persons in Petitioner's category.

    
    

19. Petitioner's argument that he may have misunderstood the clearly- stated deadline of November 15, 1993, is not persuasive. Had Petitioner chosen to comply with either of the two earlier deadlines, the fee would have been paid and Petitioner would be eligible to sit for the examination when it is given. Similarly unpersuasive is Petitioner's argument that one candidate was permitted by the Board to make a late payment of the examination fee since the only evidence offered concerning that applicant is that he had a heart condition. No evidence was offered as to the specific circumstances surrounding that applicant's late payment or as to any similarity between Petitioner and that applicant. Finally, Petitioner's argument that the examination has not yet been given is irrelevant.

20. It would be contrary to the statutory scheme to allow Petitioner to continue to hold and use his temporary certification as a physician assistant. He has precluded himself from taking the examination which would determine if his temporary certificate should be voided either because he failed the examination and was no longer eligible for further temporary certification or because he passed the examination and was therefore entitled to permanent certification. To allow Petitioner to continue to hold his temporary certification would, in effect, transform that temporary certification into a permanent certification without Petitioner taking the licensure examination to determine if he were qualified for permanent certification. Accordingly, the Board's determination that Petitioner's temporary certification as a physician assistant should be declared null and void is appropriate and in compliance with the statutory scheme for temporary certification for persons in Petitioner's category.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding that Petitioner is not eligible to take the physician assistant examination and that Petitioner's temporary certification is null and void.

DONE and ENTERED this 9th day of February, at Tallahassee, Florida.

LINDA M. RIGOT

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 9th day of February, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-4, 7-9, and 13 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 5 has been rejected as being irrelevant.

3. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate.

4. Petitioner's proposed findings of fact numbered 10-12 have been rejected as being not supported by any evidence.

5. Respondent's proposed findings of fact numbered 1-17 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed finding of fact numbered 18 has been rejected as not constituting a finding of fact.

COPIES FURNISHED:

Allen R. Grossman, Esquire Office of the Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050

Alexander J. Alfano, Esquire

45 Southwest 9th Avenue Miami, Florida 33130

Dr. Marm Harris, Executive Director Agency for Health Care Administration,

Board of Medicine

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Tom Wallace, Assistant Director

Agency for Health Care Administration, Board of Medicine

1940 North Monroe Street, Suite 60

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 10 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

CARLOS VERDEZA,

Petitioner,

vs. CASE NO. 94-4257

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Respondent.

/

FINAL ORDER

THIS CAUSE came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 9, 1995, in Ft. Lauderdale, for consideration of the Hearing Officer's Recommended Order, attached hereto as Exhibit A in the above styled cause. Petitioner, Carlos Verdeza, was present and represented by Alexander J. Alfano, Esquire. Respondent, the Board of Medicine, was represented by Allen Grossman, Esquire.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The Findings of Fact of the Hearing Officer as set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

4. Paragraph 20 of the Conclusions of Law in the Recommended Order declaring Petitioner's certification as a physician assistant null and void, is rejected based upon Petitioner's ultimate payment of the certification fee.

   
   

5. The remaining Conclusions of Law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

6. There is competent substantial evidence to support the remaining Conclusions of Law.

RECOMMENDATION

The Recommendation of the Hearing Officer that the Petitioner's temporary physician assistant certification be declared null and void and that the Petitioner is ineligible to take the physician assistant examination, is rejected. Upon a complete review of the record in this case, the Board determines that the Petitioner's temporary certificate as a physician assistant is restored and that the Petitioner is eligible to take the physician assistant examination.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the Petitioner's

temporary physician assistant certification is restored and Petitioner is eligible to take the physician assistant examination.

This Final Order takes effect upon filing with the Clerk of the Agency for Health Care Administration.

DONE AND ORDERED this 11th day of May, 1995.

Board of Medicine

Gary E. Winchester, M.D. Chairman

Notice of Right to Judicial Appeal

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and by filing the filing fee and copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date of this Order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to Alexander J. Alfano, Attorney for Petitioner, at 45 Southwest 9th Avenue, Miami, Florida 33130, and Allen R. Grossman, Esquire, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399- 1050, by US Mail, this day of May, 1995.*

*

Marm Harris Executive Director Board of Medicine

*filed undated and unsigned.

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Carlos Verdeza, 4712 SW 143rd Avenue, Miami, Florida 33175, Alexander J. Alfano, Attorney for Petitioner, 45 Southwest 9th Avenue, Miami, Florida 33130, Allen Grossman, Esquire, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1550, and by interoffice delivery to Larry G. McPherson, Chief Medical Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, at or before 5:00 p.m., this 15th day of May, 1995.

Marm Harris

Docket for Case No: 94-004257

Orders for Case No: 94-004257