STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAUL IVAN VILA, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2861RX

) BOARD OF MEDICAL EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was held on October 10, 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:

For Petitioner: Edward P. de la Parte, Jr.

Attorney at Law

705 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Catherine Lannon

Assistant Attorney General The Capitol

Tallahassee, Florida 32301

At the commencement of the hearing Petitioner moved to amend his Petition to encompass Rule 21M-22.18, Florida Administrative Code, as originally enacted and also as amended on March 13, 1985, and said motion was granted.

Pursuant to Section 120.61, Florida Statutes, and Rule 22I- 6.20, Florida Administrative Code, official recognition was taken of Rule 21M-22.18 as enacted on November 28, 1984, and as amended on March 13, 1985, as well as Chapter 458, Florida Statutes, Chapter 458, Florida Statutes (1984 Supp.) and Chapter 85-344, Laws of Florida. Petitioner introduced, without objection, the deposition of Charles P.

Gibbs, M.D., and a publication by the Liaison Committee on Medical Education entitled, "Functions and Structure of a Medical School." Respondent introduced, without objection, a publication by the Association of American Medical College entitled, "A Description of Teaching Hospital Characteristics" and also called Robert Katims, M.D., to testify. By stipulation of the parties, Dr. Gibbs was accepted as an expert in the area of medical education. A transcript of the hearing was filed on October 21, 1985.

The parties were allowed to submit posthearing proposed Final Orders pursuant to Section 120.57(1)(b)4, Florida Statutes, and Petitioner's motion for extension of time until November 4, 1985, is hereby granted. A ruling on each proposed finding of fact has been made in this Final Order, as reflected in the attached Appendix.

FINDINGS OF FACT

The parties stipulated as follows:

1. Raul Ivan Vila, Petitioner, applied to Respondent for licensure by endorsement after having graduated from a foreign medical school, passed the Federation Licensing Examination (FLEX) and having been certified by the Educational Commission for Foreign Medical Graduates (ECFMG). He was denied licensure on the grounds that the supervised clinical training he received in the United States was not obtained in wither 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 Rule 21M-22.18, Florida Administrative Code, which took effect on November 28, 1984. Petitioner had completed his supervised clinical training in the United States and had received his medical degree prior to the effective date of this rule.

   
   

2. Petitioner's application would also be denied under amended Rule 21M-22.18, Florida Administrative Code, which took effect on March 13, 1985, because the supervised clinical training he received in the United States 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 the clinical training is obtained.

   
   

   The following findings are based upon the evidence received and matters officially recognized:

   
   

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

   
   

   Foreign Medical Graduates: Qualification Re- quirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada, is admitted to take the writ- ten 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 medi- cal school was obtained either in a hospital affiliated with a medical school approved by the Council on Medical Education of the Ameri- can Medical Association or in a residency pro- gram 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 gra- duate of a medical school not accredited by

   the Liaison Committee on Medical Education, ex- cept a graduate of an accredited school in Canada, is admitted to take the written licen- sure 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 re- ceived in the United States as part of the cur- riculum 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 Liaison Committee on Medical Education, which reviews and accredits medical schools in the United States, 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 requir- ed experiences in patient care (customarily called clerkships), are internal medicine, ob- stetrics and gynecology, pediatrics, psychia- try and surgery. Additionally, many schools require a clerkship in family medicine. . . .

   
   

   Each required clinical clerkship must allow the student to undertake thorough study of a series of selected patients having the major

   and common types of disease problems represent- ed in the primary and related disciplines of the clerkship. . . .

   
   

   The required clerkships should be conducted in a teaching hospital or ambulatory care fa- cility where residents in accredited programs of graduate medical education, under faculty

   guidance, may participate in teaching the stu- dents. In an ambulatory care setting, if faculty supervision is present, resident par- ticipation may not be required. If required clerkships in a single discipline are conduct- ed in several hospitals, every effort must be made to ensure that the students receive equivalent educational experiences.

   
   

   No schools outside the United States are accredited by the Liaison Committee.

   
   

7. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital, chairman of the clerkship committee at Shands, and an expert in

   medical education, 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 in a supervised setting. 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. Clerkships are usually taken in fields such as obstetrics and gynecology, pediatrics, internal medicine, surgery, community health, family medicine and psychiatry. The Liaison Committee reviews the clinical clerkship program as part of the accreditation process.

   
   

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

   
   

9. 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 school that are not accredited by the Liaison Committee. All medical schools in the United States are accredited. Dr. Katims observed that problems with the clinical experience offered at these foreign medical schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students must arrange their own clinical experience in the United States. There have been repeated instances of little of or no supervision in these clinical experiences, which frequently consist of a one-on-one affiliation with a practicing physician with very little structured training. Under these circumstances, the foreign medical student does not receive the kind of supervised clinical training which is a vital part of a medical education.

   
   

   CONCLUSIONS OF LAW

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

    
    

11. Petitioner has standing to challenge Rule 21M-

    22.18 because the effect of this rule on him has been real and immediate, and represents an "injury in fact." Petitioner has been denied licensure by endorsement because Respondent determined he did not meet the requirements of this rule. As such, Petitioner's injury is real, immediate and specific and he is 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).

    
    

12. 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 agen- cies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and con- sistent with the agencies' general statutory du- ties. 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 un- less clearly erroneous. Pan American World Airways, Inc. v. Florida Public Service Com-

    mission, 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 promul- gated in rulemaking proceedings, the validity of such rule must be upheld if it is reason- ably related to the purposes of the legisla- tion 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 Re- gulation, 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); De- partment 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).

    
    

13. 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, Petitioner has failed to meet this burden.

    
    

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

    
    

    458.313 Licensure by endorsement.--

    (4) The board may promulgate rules and regu- lations, to be applied on a uniform and consis- tent basis, which may be necessary to carry

    out the provisions of this section. (Emphasis supplied.)

    
    

15. 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 depart- ment shall examine each applicant who the board certifies has:

       * * *

       (b) Graduated from an allopathic medical school or allopathic college recognized and ap- proved by an accrediting agency recognized by the United States Office of Education.

       * * *

    2. Notwithstanding the provisions of para- graph (1)(b), graduates of foreign medical schools, except approved schools in Canada, who are otherwise qualified, whose medical credentials have been evaluated by the Educa- tional Commission for Foreign Medical Graduates, and who have passed the Educational Commission for Foreign Medical Graduates ex- amination may be accepted for the examinations in this state. However, a graduate of a fo- reign 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 examina- tion in at least one state of the United States whose examination requirements have been ap- proved by the board as substantially equivalent to or more stringent than the Florida examina- tion; 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 speciality boards accredited by the Council on Medical Education of the American Medical Association.

    3. Notwithstanding the provisions of para- graph (1)(b), a graduate of a foreign medical school need not present the certificate issued by the Educational Commission for Foreign Medi- cal Graduates or pass the Educational Commis- sion for Foreign Graduates examination if he:

    * * *

    (d) Has completed an academic year of super- vised clinical training in a hospital affiliat- ed with a medical school approved by the Coun- cil on Medical Education of the American Medi- cal Association and upon completion has passed part II of the National Board of Medical Ex- aminers examination or the Educational Commis- sion 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, and as amended on March 13, 1985. 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). Petitioner has 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. Respondent has a responsibility to look behind a foreign medical degree to determine if in fact Petitioner in this case has received a "medical education." To argue otherwise is to ignore Sections 458.313(1)(c), (4) and 458.311(2), (3)(d). 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. A contrary conclusion would lead to the absurd result 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 no have intended such a result.

    
    

20. 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 Regulation, 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 rule, 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 Board, 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 implement, 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 on the foregoing, it is, ORDERED THAT:

Rule 21M-22.18, effective November 28, 1984, and as amended March 13, 1985, is a valid exercise of delegated legislative authority and the relief sought herein by Petitioner is denied.

DONE AND ORDERED this 12th day of November, 1985, at Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1985.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-2861RX

Rulings on Petitioner's Proposed Findings of Fact: 1-7 Adopted in finding of Fact 1.

8, 9 Rejected as irrelevant and unnecessary to resolve

the

issues in this Section 120.56 case.

1. Adopted in Finding of Fact 7.

2. Rejected as irrelevant and unnecessary to resolve the

issues in this Section 120.56 case.

12, 13 Rejected as unnecessary, and also not based on competent

substantial evidence.

14 Adopted in Finding of Fact 6.

15-32 Rejected as irrelevant and unnecessary to resolve the

issues in this Section 120.56 case

1. Rejected as not based on competent substantial evidence.

2. Rejected as a statement of position or policy rather than

a finding of fact.

1. Rejected as irrelevant and unnecessary to resolve the

   issues in this Section 120.56 case.

   
   

   Rulings on Respondent's Proposed Findings of Fact:

   
   

   1. Adopted in Findings of Fact 2 and 3.

   2. Adopted in Finding of Fact 1.

   3. Adopted in Finding of Fact 2.

   4. Adopted in Finding of Fact 3.

   5. Adopted in Finding of Fact 4.

6-9 Adopted in part in Findings of Fact 6 and 7, but otherwise rejected as irrelevant and unnecessary.

10-15 Adopted in part in Finding of Fact 7, but otherwise rejected as irrelevant and unnecessary.

1. Adopted in part in Finding of Fact 5.

2. Rejected as irrelevant and unnecessary to resolve the

issues in this Section 120.56 case.

COPIES FURNISHED:

Edward P. de la Parte, Jr., Esquire 705 East Kennedy Boulevard

Tampa, Florida 33602

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

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 DISTRICT 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: 85-002861RX

Orders for Case No: 85-002861RX