STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD M. KNAPP, )

)

Petitioner, )

)

vs. ) CASE No. 86-1218

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 25, 1986, at Tampa, Florida.

APPEARANCES

For Petitioner: B. Larry Smith, Esquire

527 First Avenue North

St. Petersburg, Florida 33701

For Respondent: M. Catherine Lannon, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

By Petition for Formal Hearing forwarded March 31, 1986, Richard M. Knapp,

1. D., Petitioner, contests the denial of his application for licensure by endorsement by the Florida Board of Medical Examiners, Respondent. Petitioner contends that the residency program upon which he embarked July 1, 1984, at the University of South Florida, College of Medicine, was for a period of not less than 12 calendar months and that he met the requirements for licensure by endorsement on June 30, 1985.

   
   

   At the commencement of the hearing, the parties stipulated that during the time period here involved, Bayfront Medical Center was an accredited institution for residency in family practice and University affiliated hospitals at the University of South Florida (USF) were accredited hospitals for residency training in pathology.

   
   

   The parties further stipulated the issue to be whether Petitioner completed one year's residency requirement for licensure by endorsement on June 30, 1985. This issue is significant only because on the date of this hearing Petitioner had completed the one year's residency in family practice and one year's residency in pathology, and was fully qualified for licensure by endorsement upon application and paying the application fee. Accordingly, this hearing

   involves only whether Petitioner is qualified for licensure by endorsement without paying a second application fee.

   
   

   At the hearing Petitioner called three witnesses, including himself, Respondent called one witness and four exhibits were admitted into evidence. There is no dispute regarding the facts in this case. Accordingly, proposed findings submitted by Petitioner are accepted. Respondent's Proposed Findings No. 2, 3 and 6, are rejected insofar as they purport to be mere testimony of witnesses. No. 4 is rejected as a conclusion, and No. 7 is rejected. No credible evidence was presented that a residency at an approved hospital receives a specific AMA approval.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner graduated from the Oral Roberts University with a degree of Doctor of Medicine on April 29, 1984. Thereafter, he successfully completed all examinations required for certification by the National Board of Medical Examiners. (NBME)

      
      

   2. On July 1, 1984, Petitioner embarked on a residency program in pathology at a University affiliated hospital of South Florida University (SFU). Petitioner also desired to obtain qualifications in family practice and the chairman of the pathology department and professor at SFU concurred that Petitioner's pathology residence should be interrupted with training in family practice.

      
      

   3. Prior to 1950, all medical school graduates were required to have one year of rotating internship before admission to practice medicine in all states. During the 1950's this practice changed and medical school graduates generally went directly into the residency in which they desired to qualify. More recently it has become recognized that practitioners of the various specialties in medicine are better prepared if they are exposed to different disciplines than the one in which they specialize. As a result some, but not all, residencies now require some form of rotating internship with their residency training.

      
      

   4. In July 1985, the American Medical Association Board changed the requirement for pathology residents to include training in family practice. In 1984, when Petitioner entered the pathology residency program, the joint program had not been approved by the AMA. However, the chairman of the pathology department at USF considered the family practice training which would interrupt Petitioner's pathology residence to be part and parcel of the pathology residency.

      
      

   5. Petitioner was enrolled in the pathology residency program at a University affiliated hospital on July 1, 1984, and trained as a pathologist until December 31, 1984. He again devoted his training to pathology from October 1, 1985 to December 31, 1985. On January 1, 1985, until September 30, 1985, (9 months) he was in the family practice residency program at Bayfront General Hospital. There he was under the direct supervision of the chairman of the family practice medicine at Bayfront General, Dr. Aucremann who also accepted Petitioner primarily as a pathology resident.

      
      

   6. From January 1, 1986, until March 31, 1986, Petitioner returned to the family practice residency program and on April 1, 1986, he resumed his pathology residency. While working in the family practice program Petitioner was paid a salary by the hospital from family practice funds, and while working in the

      pathology department his pay came from funds allocated to the pathology department. As a primary pathology resident Petitioner was not counted in the allowed quota of residents in the family practice residency program.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   8. Section 458.311, Florida Statutes, establishes various requirements for licensure as a physician in Florida and Sub- section (1)(c) thereof specifically requires the applicant to have completed an approved internship of at least one year or at least five years of licensed practice.

      
      

   9. The parties stipulated that the sole issue in these proceedings is whether Petitioner met the approved internship requirement.

      
      

   10. Rule 21M-22.04, Florida Administrative Code, was relied upon by Respondent to deny Petitioner's licensure by endorsement. That rule defines internship program as:

       
       

       An approved internship program of at least one year constitutes a course of study and training by a person holding a medical degree as a medical doctor in a hospital which has been approved for the training and teaching of physicians by the Council of Medical Education and Hospitals (CMEH) of the American Medical Association (AMA) for a period of not less than twelve calendar months in a rotating program or one specialty area.

       
       

   11. Petitioner completed a one year course of study in hospitals approved by the Council of Medical Education of the AMA. The first year internship program consisted of 6 months in pathology and 6 months in family practice. This program was approved by the chairman of the pathology department. Residency in pathology requires three year's training.

       
       

   12. Respondent takes the position that Petitioner could have qualified within the one year he was in training had he been in a rotating internship or, stayed one year in the same discipline, but cannot qualify by spending 6 months in each of two disciplines.

       
       

   13. An Agency is afforded a wide discretion in the interpretation of a statute which it administers which will not be overturned unless clearly erroneous. The court will defer to any interpretation within the range of possible interpretations. The Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984), Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984), Sans Souci v. Division of Land Sales, 421 So.2d 623 (Fla. 1st DCA 1982).

       
       

   14. Here Respondent has interpreted Section 458.311(1)(c) in Rule 21M- 22.04, Florida Administrative Code, above quoted. That rule provides simply that an approved internship program of at least one year duration in a hospital approved for training and teaching of physicians satisfies the statutory requirement for licensure contained in Section 458.311(1)(c). The hospitals in

       which Petitioner took his internship are approved for training by the AMA. The program Petitioner took was approved by the Chairman of the pathology department at USF. No evidence was presented that the Council of Medical Education of the AMA must put it imprimatur on all internship programs for these program to qualify as "approved internship programs."

       
       

   15. While the agency's interpretation of the statute which it is called upon to enforce is entitled to great weight, Durrani, Supra, the agency must also honor its own substantive rules until these rules are amended or abrogated. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977).

       
       

   16. From the foregoing it is concluded that the internship program pursued by Petitioner from July 1, 1984 until June 30, 1985, is an approved internship program as defined in Rule 21M- 22.04, Florida Administrative Code, and that Petitioner is qualified for licensure by endorsement. It is

RECOMMENDED that a FINAL ORDER be entered finding Richard M. Knapp, M. D., qualified for licensure by endorsement.

ENTERED this 3rd day of September 1986, at Tallahassee, Florida.

K. N. AYERS, 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 3rd day of September, 1986.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

B. Larry Smith, Esquire

527 First Avenue North

St. Petersburg, Florida 33701

M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Richard M. Knapp, M.D. 15204 Monet Drive

Tampa, Florida 33613

Docket for Case No: 86-001218

Orders for Case No: 86-001218