STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK I. NEWCOMER, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2464RX

) BOARD OF MEDICAL EXAMINERS, )

)

Respondent. )

) PIERRE ANDRE, M.D., )

)

Petitioner )

)

vs. ) CASE NO. 85-2647RX

) BOARD OF MEDICAL EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was held on September 9, 1985, in Tallahassee, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings, to determine the validity of Rule 21M-22.18, Florida Administrative Code. The parties were represented as follows:

Petitioner: James R. Hubbard, Esquire

1250 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131

(For Jack I. Newcomer)

Deborah J. Miller, Esquire 2121 Ponce de Leon Boulevard Suite 450

Coral Gables, Florida 33134

and

Paul Watson Lambert Esquire

1114 East Park Avenue Tallahassee,, Florida 32301 (For Pierre Andre, M.D.)

Respondent: Catherine Lannon

Assistant Attorney General The Capitol

Tallahassee, Florida 32301

At the commencement of the hearing, a motion to consolidate these cases was filed on behalf of Jack I. Newcomer, and said motion was granted; a motion to dismiss the Department of Professional Regulation as a party-Respondent which had been filed on August 5, 1985 was also granted, and the styling of these cases has been changed accordingly. Prehearing stipulations between the parties were filed, and based thereon five (5) exhibits were received on behalf of Andre, one (1) on behalf of Newcomer, and three (3) on behalf of the Board. In addition one (1) joint exhibit, and one (1) exhibit offered by the Board as to Newcomer only were also received. The Board called Drs. Charles P. Gibbs and Robert B. Katims to testify. A transcript of the hearing was filed on September 23, 1985.

The time within which parties were allowed to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes; was extended to October 11, 1985. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Jack I. Newcomer, a foreign medical school graduate, applied for licensure by endorsement and the Board of Medical Examiners considered his application on April 12, 1985. Newcomer's application was denied by Order of the Board dated May 9, 1985, on the following ground:

   
   

   The applicant's supervised clinical training was not obtained in either a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association or in a residency program approved by the Accreditation Council for Graduate Medical Education as required by

   Florida Administrative Code Rule 21M21.18[sic].

   
   

2. Pierre Andre, M.D., a foreign medical-school graduate certified by the Educational Commission for Foreign Medical Graduates (ECFMG) applied for licensure by endorsement. Andre had passed the ECFMG examination and also the Foreign Licensure

   Examination (FLEX). The Board considered his application, and denied said application on the ground that his supervised training was not obtained in either a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which his clinical training was obtained as required by Rule 21M-22.18, Florida Administrative Code.

   
   

3. The Board adopted Rule 21M-22.18, which took effect on November 28, 1984, and it provided:

   
   

   Foreign Medical Graduates: Qualification Requirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada is admitted to take the written licensure examination or be licensed by endorsements[sic], he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training received in the United States as part of the curriculum of the foreign medical school was obtained either in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association or in a residency program approved by the Accreditation Council for Graduate Medical Education.

   
   

4. The Board subsequently amended Rule 21M-22.18, and the amendment took effect March 13, 1985, to provide:

   
   

   Foreign Medical Graduates: Qualification Requirements. Before any graduate of a medical school not accredited by the Liaison Committee on

   Medical Education, except a graduate of an accredited school in Canada, is admitted to take the written licensure examination or be licensed by endorsement; he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training received in the United States as part of the curriculum of the medical

   school was obtained either in a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is being obtained.

   
   

5. This rule, as well as its amendment, were adopted to implement Sections 458.311 and 458.313(4), Florida Statutes.

   
   

6. The parties stipulated at the hearing that only Rule 21M-22.18 as originally enacted was applied to Petitioners and not the amendment which took effect March 13, 1985.

   
   

7. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital and former chairman of the clerkship committee at Shands, clerkships are an essential part of a medical education because they are the first time the student is introduced to the real practice of medicine and contact with patients. Clerkships occur in the third and fourth years of a medical education, after the student has had courses in the basic sciences, pathology, pharmacology and an introduction to clinical medicine. During a clerkship, the student participates as part of a team and does patient histories, physicals, participates in discussions about patient care, observes operations and attends lectures.

   
   

8. Dr. Gibbs testified that written exams, such as FLEX or the National Board, are important in measuring a student's cognitive knowledge and determining minimum qualifications, but cannot measure clinical qualities of a doctor such as how he relates to patients and reacts in stress situations, how he works with colleagues, and how he communicates. Clerkships are important in determining a student's performance level in these clinical qualities.

   
   

9. The Liaison Committee on Medical Education has adopted standards for the accreditation of medical education programs which were ratified by the Council on Medical Education of the American Medical Association on March 1, 1985, and the Executive Council of the Association of American Medical Colleges on April 4, 1985, and which state in part:

   
   

   The traditional required clinical subjects, which should be offered in the

   form of required experiences in patient care (customarily called clerkships), are internal medicine, obstetrics and gynecology, pediatrics, psychiatry and surgery. Additionally, many schools require a clerkship in family medicine

   . . . .

   
   

   The curriculum must provide grounding in the body of knowledge represented in the disciplines that support the fundamental clinical subjects, for example, diagnostic imaging and clinical pathology. Students must have opportunities to gain knowledge in those content areas that incorporate several disciplines in providing medical care, for example, emergency medicine and the care of the elderly and disabled. In addition, students should have the opportunity to participate in research and other scholarly activities of the faculty.

   
   

10. Robert B. Katims, M.D., testified as a member of the Board and Chairman of the Foreign Medical Graduates Committee of the Board. As Committee Chairman he had noted problems with the clinical experience being received by graduates of certain foreign medical schools that are not accredited and that are relatively new schools whose primary purpose is to train United States students rather than their own nationals. Dr. Katims observed that problems with the clinical experience offered at these schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students cannot receive clinical training in those countries through a clerkship. Instead, they must arrange their own clinical experience, usually a preceptorship, in the United States. A preceptorship differs substantially from a clerkship in that it is usually either a one on one affiliation with a practicing physician with very little structured training, or occurs at an outpatient prepaid health plan facility. Dr. Katims testified that preceptorships do not meet the clinical training standards of the Liaison Committee on Medical Education, and do not represent supervised clinical training.

    
    

    CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.56, Florida Statutes.

    
    

12. Both Petitioners have standing to challenge Rule 21M

    22.18 because the effect of this rule on them has been real and immediate, and represents an "injury in fact." Petitioners have been denied licensure by endorsement because Respondent determined they did not meet the requirements of this rule. As such, Petitioners' injury is real, immediate and specific and they are clearly within the zone of interest protected by statute. See Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1235-1236, (Fla. 1st DCA 1978), cert.den. 359 So.2d 1215 (Fla. 1978); All Risk Corporation of Florida v. State, Department of Labor and Employment Security, 413 So.2d 1200, 1202 (Fla. 1st DCA 1982); Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985).

    
    

13. The validity of rules normally will be sustained as long as they are reasonably related to the purpose of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corporation v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975); Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert.den. 376 So.2d 74 (Fla. 1979); Jax's Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, et al., 388 So.2d 1306 (Fla. 1st DCA 1980); Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). As stated by the Court in Department of Professional Regulation, Board of Medical Examiners v. Durrani 455 So.2d 515 (Fla. 1st DCA 1984):

    
    

    The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties.

    Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (Fla. 1st DCA 1982). An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous.

    Pan American World Airways, Inc. v. Florida Public Service Commission, 427

    So.2d 716 (Fla. 1983); Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary and capricious. The burden is upon petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975).

    Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations. Department of Health and Rehabilitative Services v.

    Wright, 439 So.2d 937 (Fla. 1st DCA 1983) (Ervin, C.J., dissenting); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). . . .

    
    

    See also General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984).

    
    

14. The party contesting the validity of a rule carries the burden of proving by a preponderance of the evidence that the challenged rule is without authority, arbitrary and capricious. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d. 889 (Fla. 1st DCA 1985); Department of Natural Resources v. Sailfish Club of Florida, Inc., 473 So.2d 261 (Fla. 1st DCA 1985). In this case, Petitioners have failed to meet this burden.

    
    

15. Respondent promulgated Rule 21M-22.18 partly under the following statutory authority:

    
    

    458.313 Licensure by endorsement.

    (4) The board may promulgate rules and regulations, to be applied on a uniform and consistent basis, which may be necessary to carry out the provisions of this section. (Emphasis supplied.)

    
    

    Within Section 458.313 it is provided that a license by endorsement shall be issued to an applicant who, in addition to other requirements, is a graduate of a medical school or college maintaining a standard or reputation approved by the Board pursuant to Section 458.311. See Section 458.313(1)(c).

    Section 458.311 was also cited as authority for the rule in question and states:

    
    

    458.311 Licensure by examination.

    1. Any person desiring to be licensed as a physician shall apply to the department

       to take the licensure examination. The department shall examine each applicant who the board certifies has:

       * * *

       (b) Graduated from an allopathic medical school or allopathic college recognized

       and approved by an accrediting agency recognized by the United States Office of Education.

       * * *

    2. Notwithstanding the provisions of paragraph (1)(b), graduates of foreign medical schools, except approved schools in Canada, who are otherwise qualified, whose medical credentials have been evaluated by the Educational Commission for Foreign Medical Graduates, and who have passed the Educational Commission for Foreign Medical Graduates examination may be accepted for the examinations in this state. However, a graduate of a foreign medical school need not present the certificate of such educational commission or pass the Educational Commission for Foreign Medical Graduates examination if:

       1. He is licensed through written examination in at least one state of the United States whose examination requirements have been approved by the board as substantially equivalent to or

          more stringent than the Florida examination; his license is in good standing in that state; and he has continuously and actively engaged in the practice of medicine in that state for any

          4 of the preceding 5 years immediately prior to application; and

       2. He has been examined and certified as a specialist by one of the appropriate American specialty boards accredited by

          the Council on Medical Education of the American Medical Association.

    3. Notwithstanding the provisions of paragraph (1)(b), a graduate of a foreign medical school need not present the certificate issued by the Educational Commission for Foreign Medical Graduates or pass the Educational Commission for Foreign Medical Graduates examination if he:

    * * *

    (d) Has completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association and upon completion has passed part II of the National Board of Medical Examiners examination or the Educational Commission for Foreign Medical Graduates examination equivalent. . . . (Emphasis supplied.)

    
    

    See also Respondent's general rulemaking authority at Section 458.309, Florida Statutes.

    
    

16. Because it is given the authority in Section 458.313(4) to adopt rules which are necessary to carry out the entirety of Section 458.313, and because Section 458.313(1)(c) allows Respondent to approve standards for medical schools pursuant to Section 458.311, we must examine Section 458.311.

    If the authority for the standard for foreign medical schools set forth in Rule 21M-22.18 is found in Section 458.311, then it cannot be said that the rule is without specific authority.

    Section 458.311(2) allows the Respondent to determine if graduates of foreign medical schools are "otherwise qualified", in addition to other stated requirements, and then also provides that they "may" be accepted for examination. More particularly,

    Section 458.311(3)(d) specifies that supervised clinical training for graduates of foreign medical schools shall be "in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association."

    
    

17. Therefore, in adopting Rule 21M-22.18 under Section 458.313(4), Respondent could look to Sections 458.311(2) and (3)(d) and determine that in order for an applicant to be "otherwise qualified" he must demonstrate that his supervised clinical clerkship was obtained in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association. This was provided for in Rule 21M-22.18 when it took effect on November 28, 1984 which, by stipulation, is the rule that was applied to Petitioners. See Barker v. Board of Medical Examiners, Department of Professional Regulation, 428 So.2d 720 (Fla. 1st DCA 1983).

    
    

18. Where, as here, an agency construes the statute in its charge in a permissible way, that interpretation must be sustained though another may be possible or even, in the view of some, preferable. State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238

    241 (Fla. 1st DCA 1981); Pan American World Airways, Inc. v. Florida Public Service Commission and Florida Power and Light Co., 427 So.2d 716, 719 (Fla. 1983). Petitioners have failed to show that the Board's interpretative rule is clearly erroneous or unauthorized. See, Department of Revenue v. Skop, 383 So.2d 678 (Fla. 5th DCA 1980); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981).

    
    

19. Petitioners contend that Rule 21M-22.18 is not applied on a "uniform and consistent basis" as required by Section 458.313(4), but the evidence produced does not support their contention. All foreign medical graduates whose supervised clinical training occurs in the United States must comply. Simply because Petitioners would have the rule also apply to foreign graduates whose clinical training occurs abroad is not grounds to invalidate the rule. The evidence produced through the testimony of Drs. Gibbs and Katims establishes a rational basis for the rules' application since the problem faced by the Board has been with foreign graduates obtaining unsupervised and substandard clinical training in the United States.

    
    

20. Petitioners further argue that Respondent has no authority to look behind a foreign medical degree to determine if in fact they have received a "medical education." This

    ignores Sections 458.313(1)(c),(4) and 458.311(2),(3)(d), above. It would also require Respondent to ignore the purpose behind Chapter 458, Florida Statutes, which "is to ensure that every physician practicing in this state meet minimum requirements for safe practice." Section 458.301. Clearly Respondent has the authority to prescribe minimum requirements for practice which include a medical education with approved clinical training.

    Petitioners' argument would lead to the absurd conclusion that Respondent would have no authority to look behind a "foreign medical degree" even if that degree was conferred by a mail- order college which the student never attended, and even if the student's "clinical training" consisted solely of mailing in his money for the degree. The legislature could not have intended such a result.

    
    

21. While it is clear that agencies in Florida do not possess inherent rulemaking authority, the Courts have recognized that rulemaking authority may be implied to the extent necessary to properly implement a statute. This is particularly so when an agency is defining or clarifying by rule terms which are within the agency's field of expertise and which are necessary for the agency to carry out its responsibilities. Department of Professional Regulations Board of Professional Engineers v. Florida Society of Professional Land Surveyors, et al., Case No. AY-273 (Fla. 1st DCA, Opinion filed September 4, 1985). The principle of implied rulemaking authority is applicable when it comes to rules enacted to implement licensing statutes since licensing is one area where the general ruled that the legislature must provide certain and specific guidelines, does not apply. It is impractical for the legislature to provide definite, comprehensive standards in licensing statutes enacted to determine the fitness of applicants to practice a profession, and therefore the standard of reasonableness applies. Florida Waterworks v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985); Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Jones, 474 So.2d 359 (Fla. 1st DCA 1985); Astral Liquors; Inc. v. Department of Business Regulation

463 So.2d 1130; 1132 (Fla. 1985). In this case the Board has reasonably interpreted its delegated statutory authority in a manner which is necessary for it to carry out its license- regulatory responsibilities. While the cited statutory authority for this rule does represent a sufficient basis for its adoption by the Boards at the very least the authority for Rule 21M-22.18 can also be reasonably implied from the Board's rulemaking authority since it represents the application of the Board's special expertise to the interpretation of the statute

it is responsible to implements and further since it is reasonably necessary in order for the Board to determine the fitness of applicants to practice medicine in this state.

Accordingly, based upon the foregoing, it is, ORDERED THAT:

Rule 21M-22.18, effective November 28, 1984, is a valid exercise of delegated legislative authority and the relief sought herein by Petitioners is denied.

DONE and ORDERED this 28th day of October, 1985, at Tallahassee, Florida.

DONALD D. CONN, 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 28th day of October, 1985.

APPENDIX TO RECOMMENDED ORDER, CASE NOs. 85-2464RX & 85- 2647RX

Rulings on Petitioner Newcomer's Proposed Findings of Fact:

1. Adopted, in part, in Finding of Fact 1, but rejected as to when his application was submitted since there is noevidence of this in the record.

2. Rejected as not based upon competent substantial evidence. There was no evidence submitted at the hearing concerning Newcomer's clinical training.

3. Rejected as a conclusion of law rather than a proposed finding of fact.

4. Adopted in Finding of Fact 1.

Rulings on Petitioner Andre's Proposed Findings of Fact: (It is difficult to identify those matters which can be considered proposed findings of fact since they are not separately identified or numbered in the Proposed Recommended Order that has been submitted, and since conclusions of law and legal argument are contained throughout the Proposed Recommended Order. Nevertheless the paragraphs have been consecutively numbered for purposes of reference by the Hearing Officer.)

1. Adopted in introductory material.

2. Adopted in Findings of Fact 1 and 2.

3. Adopted in introductory material.

4. Adopted in Finding of Fact 6.

5-7 Adopted in part as Findings of Fact 7 and 8 but

not

otherwise rejected as a summation of testimony and

a proposed finding of fact.

8, 9 Adopted in part as Finding of Fact 9 but otherwise rejected as a summation of testimony and not a proposed finding of fact.

10-24 Rejected as containing conclusions of law and legal argument and not proposed findings of fact. These matters have been considered as proposed conclusions of law in addition to the proposed conclusions set forth on page 11 of the Proposed Recommended Order.

Rulings on Respondent's Proposed Findings of Fact: (Despite Respondent's failure to comply with Rule 22I-6.31(3) by failing to include specific citations to the record in support of Proposed Findings of Fact numbered 2, 3, 4, 5, 6, 7, 8, the Hearing Officer has specifically ruled on each proposal).

1 Adopted in Findings of Fact 3, 4, 6.

2-4 Adopted in Findings of Fact 7, 9 (regarding the distinction between a preceptorship and clerkship).

5-6 Adopted in Finding of Fact 9, 7 (regarding the content

of a supervised clinical training experience).

1. Rejected as unnecessary and immaterial.

2. Adopted in Finding of Fact 9.

3. Adopted in Finding of Fact 8.

4. Rejected as unnecessary and immaterial.

5. Rejected as unnecessary and immaterial.

6. Rejected since it is not a Proposed Finding of Fact.

COPIES FURNISHED:

James R. Hubbard, Esquire AmeriFirst Buildings Suite 1250 One Southeast Third Avenue Miami, Florida 33131

M. Catherine Lannon Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301

Deborah J. Miller Esquire 2121 Ponce de Leon Boulevard

Suite 450

Coral Gables, Florida 33134

Paul Watson Lambert Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32301

Dorothy Faircloth executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68; FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW; WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DIS TRICT COURT OF APPEAL IN THe APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 85-002464RX

Orders for Case No: 85-002464RX