STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN N. KOPLIN, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 88-4732

) DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 21, 1988, at Tallahassee, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

CUMMINGS, LAWRENCE & VEZINA

Post Office Box 589

Tallahassee, Florida 32302-0589

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General The Capitol, Suite 1603

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

Whether the Board of Medicine applied the appropriate law to Dr. Koplin's original application for a public health certificate when he appeared before the Board on April 5, 1987.

Whether a public health certificate should be issued because of the Board's failure to approve or deny the application within 90 days after receipt of the original application.

Whether the abbreviated oral examination administered by the Board was a reliable indicator that Dr. Koplin is currently incapable of practicing medicine with reasonable skill and safety.

Whether Dr. Koplin presented sufficient evidence at hearing that he is currently capable of safely engaging in the practice of medicine.

PRELIMINARY STATEMENT

On August 25, 1988, the Respondent, Board of Medicine (hereinafter the Board), notified the Petitioner Allen N. Koplin, M.D. (hereinafter Dr. Koplin),

of its intent to deny Dr. Koplin's application for licensure as a physician by endorsement. By petition filed on September 20, 1988, Dr. Koplin requested a formal administrative hearing to determine whether he is qualified for licensure by endorsement. In addition, Dr. Koplin seeks to have his application deemed approved due to the Board's failure to approve or deny the application within the lawful time period.

During the hearing, Dr. Koplin called two witnesses and testified in his own behalf. Six additional witnesses were presented through deposition testimony. These depositions were marked as Petitioner's Exhibits numbered four through nine. Three additional exhibits were filed by Dr. Koplin. No witnesses were presented by the Board, but two exhibits were submitted into evidence. All of the exhibits were accepted into evidence. Official notice was taken of the applicable rules and statutes that were in effect at various times during these proceedings.

A transcript of the proceedings was filed with the Hearing Officer on January 27, 1989. Additional time was requested by both parties for the filing of proposed findings of fact and conclusions of law. These were received from both parties by February 27, 1989. Rulings on the proposed findings of facts are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. Dr. Koplin initially filed an application for a Public Health Certificate on May 20, 1986. As part of the application review process in effect at the time of the application, a candidate for certification was required to take an abbreviated oral examination, which was to be administered by the Board.

   
   

2. Dr. Koplin's application was not formally reviewed by the Board until April 5, 1987. By this date, the legislature had amended the statute which pertained to the granting of Public Health Certificates. An abbreviated oral examination was no longer required. Instead, the candidate was required to meet all of the requirements of Section 458.311(1)(a) - (f) and (s), Florida Statutes.

   
   

3. Under the new requirements, a candidate was required to complete an approved residency of at least 12 months. Dr. Koplin was unable to meet this new requirement because his formal medical education internship occurred during World War II, and his residency was completed in January, 1944, under a concentrated ten-month program.

   
   

4. Dr. Koplin's application, Petitioner's Exhibit No. 1, provides the Board with publications regarding the accelerated program. During this era, the medical schools in the United States and the Surgeons General of the Army and Navy recognized that an accelerated internship and residency program was the most feasible method to use during wartime conditions when medical education deferments had to be balanced against the need for commissioned medical officers, commissioned officers, and the need for residents in civilian hospitals to assist with the growth in patient loads.

   
   

5. Immediately after Dr. Koplin completed his ten-month accelerated residency and his additional two-month internship in pathology, his military deferment ended. His active duty in the Public Health Service began on March 15, 1944.

6. The Board did not address the wartime exception to the twelve-month residency program during the formal review of Dr. Koplin's application on April 5, 1987. Instead, the Board chose to apply the law in effect at the filing of the application as opposed to the law in effect during the time of the Board's review.

   
   

7. The decision to administer an impromptu abbreviated oral examination was made at the time of review. Dr. Koplin had not been made aware that an oral examination would be administered to him on that date, and he was given no notice of the areas to be covered by the examination.

   
   

8. The examination administered by the Board on April 5, 1987, consisted of a few open ended, general questions in the area of public health. Dr. Koplin was asked to tell the Board about the modern treatment of tuberculosis and the treatment of venereal disease.

   
   

9. During the course of the examination, it became apparent through Dr. Koplin's answers to the questions and his own admissions, that he had not been involved in primary patient care for over ten years. He was unable to answer the examination questions to the Board's satisfaction. The Board voted unanimously to deny the application for the Public Health Certificate based upon the Board's belief that Dr. Koplin was not currently qualified to provide adequate primary medical care to indigents in Florida. Dr. Koplin was present during the Board's vote on the application, and he was aware that he would not be granted a certificate.

   
   

10. In spite of verbal and written notice to Dr. Koplin that the Board would deny his application, no written Final Order was ever issued by the Board with respect to that application.

    
    

11. On December 28, 1987, Dr. Koplin submitted a new application for Public Health Certification to the Board. On August 6, 1988, the Board reviewed and considered Dr. Koplin's application and determined that the license should be denied for the following reasons:

    
    

    In regard to Dr. Koplin's previous application for Public Health Certificate in 1987, the Board of Medicine found Dr. Koplin

    to be unable to demonstrate that he was capable of practicing with reasonable skill and safety because of his lack of medical knowledge. The Board finds now that Dr. Koplin has failed to present any evidence that he is currently capable of safely engaging in the practice of medicine. See Section 458.301 and 458.331(4),

    Florida Statutes (1988).

    
    

12. Dr. Koplin presently holds a temporary medical certificate under Section 458.315, Florida Statutes, which was issued on December 12, 1987. This certificate allows him to practice medicine in Glades County, Florida, an area of critical medical need. He has been practicing medicine in Glades County since the license was issued until the date of the hearing.

    
    

13. During the administrative hearing, Dr. Koplin presented the deposition testimony of three physicians who have worked with him in Florida, and who have had an opportunity to consult with him and review his patient charts. These physicians gave their opinions that Dr. Koplin is a competent physician who

    provides quality medical care. In addition, Dr. Koplin submitted an updated transcript of medical courses he has taken since his original application to the present in order to update his medical knowledge in the public health field.

    Dr. Koplin presented himself at hearing, and gave more complete answers to the questions originally asked by the Board in the abbreviated oral examination.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding, pursuant to Section 120.57(1), Florida Statutes.

    
    

15. The final hearing before the Division of Administrative Hearings is a de novo proceeding at which the Petitioner, Dr. Koplin carries the burden of proof to establish his eligibility for licensure. Florida Department of Transportation v. V.W.C. Inc., 396 So.2d. 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d. 349 (Fla. 1st DCA 1977); Rule 28-6.008, Florida Administrative Code.

    
    

16. In order to determine whether Dr. Koplin has met all of the requirements for licensure as a physician with a public health certificate, the law in effect at the time the agency makes its decision must apply. Bruner v. Board of Real Estate, 399 So.2d 4 (Fla. 1st DCA 1981). The applicable statute during the review of Dr. Koplin's application was Section 458.316, Florida Statutes (1986).

    
    

17. Under this statute, a physician requesting licensure is required to complete a twelve-month residency program. However, within his application, Dr. Koplin clearly demonstrated that his concentrated ten-month program was a wartime exception to the twelve-month residency program during World War II. As a matter of public policy and in recognition of federal supremacy during wartime, the Board must defer to the decision of the Procurement and Assignment Service to the Surgeon General of the Army and Navy to adopt a nine-month residency period in 1943 and 1944. Accordingly, Dr. Koplin has met his burden of proof that he is eligible for a license under the statutory criteria in effect during the time period in which his application was subject to review.

    
    

18. During its review of Dr. Koplin's application, the Board acquired information through the abbreviated oral examination process, which led the Board to believe that Dr. Koplin may not be able to practice medicine with reasonable skill and safety. As a response to this belief, the Board unanimously voted in Dr. Koplin's presence to deny his license.

    
    

19. Dr. Koplin contends that the examination was improper as such an examination was no longer a statutory requirement. In addition, a license should issue because the Board did not send Dr. Koplin a formal written denial of his application within 90 days after receipt of the completed application.

    
    

20. Although a written denial was not received by Dr. Koplin to reflect the Board's denial of his application, it is clear from the Board minutes and the behavior of all parties after the Board's review on April 5, 1987, that Dr. Koplin was well aware of the decision of the Board that he should not be granted a license. The failure of the Board to place its denial in the form of a written order does not detract from the result in this case and will not be considered as a basis upon which to grant a Public Health Certificate to Dr. Koplin.

21. The difficult question which occurs, once the Board determined that Dr. Koplin is unable to currently practice medicine with reasonable skill and safety is, whether this determination takes precedence over the statutory criteria.

    
    

22. Under the administrative hearing process, Dr. Koplin was given the opportunity to dispute the Board's factual finding that he is unable to currently practice medicine with reasonable skill and safety. He refuted this determination by presenting the deposition testimony of physicians who have worked with him and reviewed his patient charts in Florida since he began his medical practice under his temporary certificate. He presented evidence of continuing medical education in addition to his current applied medical practice. He answered the previously asked questions from the oral examination with confidence, and a personal belief that he is able to practice medicine with the prerequisite skill demanded by the Board of Medicine. He successfully challenged the presumption that the impromptu examination was a valid and reliable measure of competency through the use of an expert witness in the field of testing.

    
    

23. As a result, Dr. Koplin successfully met the statutory requirements for a Public Health Certificate and further overcame the mistaken factual determination that he currently is incapable of practicing medicine with reasonable skill and safety.

RECOMMENDATION

Accordingly, based upon the foregoing, it is RECOMMENDED:

That a Final Order be entered by the Board of Medicine approving Dr.

Koplin's application for a Public Health Certificate based upon his initial application filed on May 20, 1986, and reviewed on April 5, 1987.

DONE AND ENTERED this 8th day of June, 1989, in Tallahassee, Leon County, Florida.

VERONICA DONNELLY

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 8th day of June, 1989.

APPENDIX TO THE RECOMMENDED ORDER

The Petitioner's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted. See paragraph 3 and paragraph 5.

3. Accepted. See paragraph 12.

4. Accepted. See paragraph 11.

5. Accept all but the last sentence. See paragraph 9 and paragraph 10.

6. Accepted. See paragraph 7 and paragraph 8.

7. Accepted.

8. Accepted. See paragraph 11.

The Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See paragraph 1.

2. Accepted.

3. Accepted. See paragraph 12.

4. Accepted. See paragraph 2, paragraph 6 and paragraph 9.

5. Accepted. See paragraph 9.

6. Accepted.

7. Accepted.

8. Accepted.

9. Accepted. See paragraph 11.

10. Rejected. Irrelevant.

11. Accepted. See paragraph 11.

12. Accepted. See paragraph 11.

13. Accepted. See Preliminary Matters.

14. Accepted. See HO #9.

15. Accepted. See HO #9.

16. Accepted. See HO #9.

17. Accepted. See HO #9.

18. Accepted.

19. Rejected. Improper conclusion. Contrary to factual determination by Hearing Officer.

20. Accepted. See HO #9.

21. Accepted.

22. Rejected. Speculative.

23. Rejected. Contrary to fact.

24. Accepted that Dr. Koplin has been providing primary care since he received his temporary Florida license. Rejected that this testimony is in conflict with prior testimony. Contrary to fact. See HO #12.

25. Accepted. See HO #13.

26. Accepted.

27. Rejected. Improper conclusion.

28. Rejected. Goes to weight as opposed to sufficiency. See HO #13.

29. Rejected. Sufficiency to be determined by Hearing Officer.

30. Accepted.

31. Rejected. Sufficiency to be determined by Hearing Officer.

32. Accepted.

33. Rejected. Sufficiency to be determined by Hearing Officer.

34. Rejected. Sufficiency to be determined by Hearing Officer. See HO #13.

35. Accepted. See HO #3 - #6.

36. Accepted. See HO #5.

37. Accepted. See HO #13.

38. Accepted. See HO #7.

39. Accepted.

40. Accepted. See HO #8.

41. Accepted. See HO #7.

42. Accepted. See HO #9.

43. Rejected. Improper summary.

44. Accepted.

45. Rejected. Irrelevant. Not a factual matter.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire CUMMINGS, LAWRENCE & VEZINA, P.A.

Post Office Box 589 Tallahassee, FL 32302-0589

Allen R. Grossman, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050

Dorothy Faircloth, Executive Director Florida Board of Medicine

Department of Professional Regulation 1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF MEDICINE

ALLEN N. KOPLIN, M.D.,

Petitioner,

1. DOAH CASE NO. 88-4732

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE

   
   

   Respondent.

   /

   FINAL ORDER

   
   

   This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b), Florida Statutes, on August 6, 1989, in Orlando, Florida, for the purpose of considering the Recommended Order issued by the hearing officer.

   Petitioner did not appear. No one appeared on Petitioner's behalf. Respondent, the Board of Medicine, was represented by Allen R. Grossman, Assistant Attorney General.

   
   

   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.

   
   

   Rulings on Exceptions to Recommended Findings of Fact

   
   

   1. Respondent's First Exception is rejected. Competent substantial evidence does exist to support the pertinent factual finding.

      
      

   2. Respondent's Second Exception is rejected. Competent substantial evidence exists to support the pertinent factual finding.

      
      

   3. Respondent's Third Exception is accepted. Competent substantial evidence does not exist to support the pertinent factual finding.

      
      

   4. Respondent's Final Exception to the Hearing Officer's Findings of Fact (contained at page 8 of Respondent's Exceptions) is accepted insofar as it relates to the Hearing Officer's factual finding that: "Dr. Koplin presented himself at hearing, and gave more complete answers to the questions originally asked by the Board in the abbreviated oral examination". No competent substantial evidence exists to support this factual finding.

Findings of Fact

1. The findings of fact set forth in the Recommended Order are approved and adopted as amended by the Board's rulings on Respondent's exceptions as set forth above, and said findings of fact, as amended, are incorporated herein.

   
   

2. Competent substantial evidence exists to support the findings of fact, as amended.

Rulings on Exceptions to Recommended Conclusions of Law

1. Respondent's First Exception to the Recommended Conclusions of Law is accepted. The Board specifically finds that the Board has discretion to determine which law should be applied in cases where a statute has been significantly amended subsequent to the filing of an application. See Department of Health and Rehabilitative Services vs. Petty-Eifert, 443 So.2d 266 (Fla. 1st DCA 1983). In this case, the Board will apply the law in effect at the time that its decision was made.

   
   

2. Respondent's Second Exception to the Conclusions of Law is rejected. The Hearing Officer's legal conclusion is correct and supported by competent substantial evidence.

   
   

3. Respondent's Third Exception to the Conclusions of Law is accepted. The Hearing Officer's legal conclusion is erroneous. However, the Board does find, as a matter of law, that the "9-9-9 plan" as utilized by the military

   between 1943 and 1945 only is the substantial equivalent of a one year residency, as required by Section 458.311(1)(f), Florida Statutes.

   
   

4. Respondent's Fourth Exception to the Conclusions of Law is accepted. The Hearing Officer erroneously interpreted the law in this case. The Board shall not issue a license to an individual until such time as it is satisfied that such person is capable of safely engaging in the practice of medicine. Therefore, the issue of whether Dr. Koplin has demonstrated that he is capable of safely engaging in the practice of medicine must be addressed.

   
   

5. Respondent's Fifth Exception is accepted insofar as it refers to Respondent, at the formal hearing, "answering the previously asked questions from the oral examination with confidence". There is no competent substantial evidence to support this finding. Instead, the Board finds that the appropriate legal conclusion should read as follows:

Dr. Koplin believes that he is able to practice medicine with the prerequisite skill demanded

by the Board of Medicine. Based on the totality of the evidence presented, Dr. Koplin has established that the impromptu examination was not a reliable and valid measure of compentency.

Furthermore, based on the totality of the evidence presented, Dr. Koplin has demonstrated that he is capable of practicing medicine with the requisite skill demanded by statute.

Conclusions of Law

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

   
   

2. The Conclusions of Law set forth in the Recommended Order are approved and adopted, as amended by the Board's rulings on Respondent's Exceptions, and said Conclusions of Law, as amended, are incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of law, as amended.

Upon a complete review of the record in this case, the Board determines that the recommendation of the hearing officer be ACCEPTED.

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

application for a Public Health Certificate based upon his initial application filed on May 20, 1986, and reviewed on April 5, 1987, is hereby granted.

DONE AND ORDERED THIS 6th day of September, 1989.

BOARD OF MEDICINE

FUAD S. ASHKAR, M.D. CHAIRMAN

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 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 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 has been furnished to Joseph W. Lawrence, II, Esquire, Post Office Box 589, Tallahassee, Florida 32302-0589, to Allen N. Koplin, M.D., at 5703 Autumnwood Court, Ft.

Myers, Florida 33919, to Allen R. Grossman, Esquire, Department of Legal Affairs, Suite 1603, The Capitol, Tallahassee, Florida 32399-1050, and to Veronica Donnelly, Hearing Officer, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, by U.S. Mail this 11th day of September, 1988.

Dorothy Faircloth Executive Director Board of Medicine

Docket for Case No: 88-004732

Orders for Case No: 88-004732