STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARSHALL J. BARKER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2813

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter at Tallahassee, Florida on November 19, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: None

For Respondent: Chris D. Rolle, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301

This proceeding arose as a result of a denial by Respondent, Board of Medical Examiners, of Petitioner's application for licensure as a physician under Chapter 458, Florida Statutes, wherein he sought licensure by endorsement. Petitioner appealed the denial to the First District Court of Appeal and, by Order dated September 23, 1982, the Court remanded the cause to the Board for a period of sixty (60) days for a Section 120.57(1) or (2) proceeding, as deemed appropriate by the Board.

The Board elected to refer the case to this Division for assignment of a Hearing Officer to conduct a Section 120.57 (1), Florida Statutes, hearing, and said request was filed in the Division on October 13, 1982.

The case was thereafter assigned to the undersigned Hearing Officer and Notice of Hearing was issued on October 15, 1982 for final hearing scheduled on October 22, 1982 at Tallahassee, Florida. The parties thereafter filed a Joint Motion for Continuance of the hearing and said motion was granted for good cause shown, by Order dated October 22, 1982, conditioned upon the representation that the parties would immediately seek an extension of the time period specified by the First District Court of Appeal. The Court thereafter, by memorandum to counsel, dated November 5, 1982, extended the time for remand until December 22, 1982.

The final hearing was rescheduled for November 19, 1982 by Order dated November 17, 1982. Petitioner waived appearance at the hearing, but, pursuant to agreement with Respondent, was permitted to submit documentary materials for consideration on or before November 24, 1981. A similar request by counsel for Respondent was granted at the commencement of the hearing.

At the hearing, Respondent presented the testimony of Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, and submitted five exhibits which were received in evidence. Subsequent to the hearing, Petitioner submitted various materials consisting of excerpts from articles appearing in Science magazine, and several pamphlets published by the American Osteopathic Association. Respondent submitted a list of accredited medical schools as a late-filed exhibit. (Petitioner's Exhibit 1, Respondent's Exhibit 6)

FINDINGS OF FACT

1. Petitioner Marshall J. Barker filed an application for licensure by endorsement with Respondent Department of Professional Regulation, Board of Medical Examiners on July 27, 1981. The application reflected that he sought licensure on the basis of certification by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). The application further showed that Petitioner had obtained the degree of Doctor of Osteopathic Medicine from the West Virginia School of Osteopathic Medicine on May 30, 1980, and that he had interned at various hospitals in Pensacola under the Pensacola Educational Program from July 1, 1980 through June 30, 1981. The internship was one approved by the American Medical Association. Petitioner was certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. on July 27, 1981. He was licensed to practice medicine in the State of North Carolina in June, 1981, and in the State of Alabama on July 16, 1981. (Respondent's Exhibit 5)

   
   

2. Petitioner personally appeared before the Respondent Board of Medical Examiners on September 13, 1981 at its meeting when his application was considered. In a written submission, Petitioner pointed out to the Board that he could not be licensed in Florida as an osteopath because he had engaged in a medical internship rather than one in osteopathic medicine. He urged, however, that he be licensed to practice medicine because Section 458.311, Florida Statutes, had been changed in 1979 to permit recognition of graduation from a medical school or college recognized and approved by an accrediting agency recognized by the United States Office of Education, and that the West Virginia School of Osteopathic Medicine is recognized by the American Osteopathic Association and by the Council on Post-Secondary Accreditation under the U.S. Department of Education. He also sought to amend his application to be one for licensure by examination rather than by endorsement. (Respondent's Exhibit 5).

   
   

3. By Order, dated October 2, 1981, Respondent denied Petitioner's application for licensure by endorsement on the ground that he is not specialty board certified, or a graduate of a medical school or college recognized and approved by an accrediting agency recognized by the United States Office of Education. It was therefore concluded by the Board that he had not met the statutory requirements for licensure by endorsement pursuant to Sections 458.313 and 458.311(4), Florida Statutes. The Petitioner was informed in the Order that he could petition for a hearing under Sections 120.57 and 120.60, Florida Statutes. Petitioner did not request an administrative hearing, but appealed the decision of the Board to the First District Court of Appeal. (Respondent's Exhibits 4-5)

4. Prior to 1979, the Medical Practice Act required an applicant for licensure to be a graduate of a medical school or college approved by the Board of Medical Examiners. (Sections 458.05 and 458.08, F.S.) The Board had implemented the statute by promulgation of Rule 21M-1.06, Florida Administrative Code, which read as follows:

   
   

   21M-1.06 Approved Medical Schools - An approved medical school or college is one located within the United States or Canada, maintaining a standard and reputability as that adopted by the Council on Medical Education and Hospitals of the American Medical Association and the Association

   of American Medical Colleges.

   
   

   The rule was repealed in 1980 as a result of the repeal of Chapter 458, Florida Statutes (1978), and the enactment of Chapters 79-36 and 79-302 Laws of Florida, which required new rules regarding requirements for admission to the practice of medicine. New rules on the accreditation of medical schools have not yet been adopted by the Board. However, current Board policy recognizes those medical schools or colleges approved by the Liaison Committee on Medical Education (LCME) of the Council on Medical Education of the American Medical Association. (Testimony of Faircloth, Respondent's Exhibits 1-2)

   
   

5. The United States Department of Education recognizes separate accrediting agencies for "medicine" and "osteopathic medicine" as reliable authorities concerning the quality of education or training offered by educational institutions or programs. In its publication "Accredited Postsecondary Institutions and Programs," the Department of Education recognizes the Liaison Committee on Medical Education of the Council on Medical Education of the American Medical Association and the Executive Council of the Association of American Medical Colleges as the accrediting agency for medicine, and the American Osteopathic Association as the accrediting agency for osteopathic medicine. (Respondent's Exhibit 3)

   
   

6. No evidence was presented by the parties concerning the legislative history of subsection 458.311(1)(b), Florida Statutes.

   
   

7. The West Virginia School of Osteopathic Medicine is not recognized by the American Medical Association as a school offering an accredited program leading to an MD degree. (Respondent's Exhibit 6)

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 458.313, Florida Statutes (1981) concerning requirements for licensure to practice medicine by endorsement provides pertinently as follows:

   
   

   458.313 Licensure by endorsement.--

   (1) The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee not to exceed $250 set by the board, demonstrates to the board that he has met the qualifications for licensure in s.

   458.311 and:

   1. Is a graduate of a medical school

      or college maintaining a standard and reputation approved by the board pursuant to s. 458.311; and:

   2. Has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) . . .: provided that said examination required shall have been so certified within the 10 years immediately preceding the filing of his application for licensure under this section.

   
   

   Subsections 458.311(1)(b) and (c) provide, inter alia, that the department shall examine each applicant who the board certifies has:

   
   

   1. Graduated from a medical school or college recognized and approved by an ac- crediting agency recognized by the United States Office of Education.

   2. Completed an approved internship of at least 1 year or at least 5 years of licensed practice.

   
   

9. Petitioner contends that he is entitled to licensure by virtue of the fact that he has been certified by licensure examination of FLEX, has served an approved internship of at least one year, and has graduated from a medical school recognized and approved by the American Osteopathic Association which is an accrediting agency recognized by the United States Office of Education.

   
   

10. It appears from the foregoing that Petitioner's claim hinges on the determination of whether or not the West Virginia School of Osteopathic Medicine is a "medical" school within the meaning of subsection 458.311(1)(b), Florida Statutes. In considering this question, the First District Court of Appeal, in its Order remanding this case to the Board of Medical Examiners, directed that the Board address the following matters:

    
    

    1. Legislative history of the statute here in question, including the significance, if any, of the repeal of Section 458.01, Florida Statutes (1977), which had authorized the Board to "pass upon the good standard and reputability of any medical school or college . . ." (It is apparent that the Court was referring to Section 458.08, Florida Statutes (1977))

       
       

    2. The significance of and reason for the Board's withdrawal of Rule 21M-1.06, Florida Administrative Code, in 1980.

       
       

    3. Whether the United States Office of Education separately recognizes accrediting agencies for "medical schools" and accrediting agencies for "osteopathic medicine schools."

       
       

    4. Any other fact bearing upon the question of whether "medical school" as employed in Section 458.311(1)(b), includes or does not include schools of "osteopathic medicine."

       
       

11. No evidence was presented by the parties concerning the legislative history of subsection 458.311(1)(b) or the predecessor statute as contained in Sections 458.05 and 458.08, Florida Statutes (1977) concerning approved medical schools. The latter provision authorized the Board to determine those medical schools which maintain a standard of training sufficient to admit their

    graduates to the medical examinations given by the Board. Rule 21M-1.06, F.A.C., implemented Section 458.08, and provided that an approved medical school was one maintaining a standard and reputability as that adopted by the Council on Medical Education and Hospitals of the American Medical Association and the Association of American Medical Colleges. It is noteworthy that the current accrediting agency is an arm of the American Medical Association's Council on Medical Education, and that the standards that were acceptable under Rule 21M-

    1.06 as to approved medical schools also were those adopted by the Council on Medical Education. Hence, there was virtually no change in the practical effect of the statutory revision.

    
    

12. As heretofore found, the reason for the Board's repeal of Rule 21M- 1.06, F.A.C., in 1980 was the enactment of a new Chapter 458 which required new rules pursuant to Chapter 79-302, Laws of Florida, based on the determination of the Board that the then current rule was inconsistent with the new statute. The repeal of the rule is considered to be of little significance since it has, in effect, been substantially embodied in the current subsection 458.311(1)(b), F.S.

    
    

13. The United States Department of Education separately recognizes accrediting agencies for "medical schools" and accrediting agencies for "osteopathic medical schools."

    
    

14. Although the documents submitted after the hearing by Petitioner indicate that the traditional differences between training of physicians at medical schools and osteopathic schools have substantially lessened in recent years, it is evident that the legislature through enactment of separate regulatory acts contained in Chapters 458 and 459 has determined that the two professions remain distinct and subject to their own specialized requirements for licensure. The clear legislative distinction between the practice of "medicine" and the practice of "osteopathic medicine" is made in Sections

    458.301 and 458.305(3) and in Sections 459.001 and 459.003(3), Florida Statutes. A distinction is also made in the requirements for licensure under Section 458.311(1)(b) concerning graduation from a "medical school or college," and that of Section 459.006(1)(b) as to the requirement that an individual be a graduate of a "college of osteopathic medicine recognized and approved by the American Osteopathic Association."

    
    

15. In view of the foregoing, it is concluded that Petitioner has failed to establish that the school from which he graduated is a "medical school" within the meaning and application of subsection 458.311(1)(b), Florida Statutes, and that therefore he has failed to meet the requirements for licensure by endorsement under Section 458.313, Florida Statutes.

RECOMMENDATION

It is recommended that the Board of Medical Examiners deny the application of Petitioner, Marshall J. Barker.

DONE and ENTERED this 1st day of December, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 1st day of December, 1982.

COPIES FURNISHED:

Bruce A. McDonald, Esquire Emmanuel, Sheppard & Condon Post Office Drawer 1271 Pensacola, Florida 32596

Chris D. Rolle, Esquire Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002813

Orders for Case No: 82-002813