The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Gerardo Hevilla, completed the application for licensure by endorsement and submitted all degrees, test results, certificates, recommendations, and other documents required by law to be considered for licensure by endorsement as a medical doctor in Florida. The degrees, test results, recommendations and other documents submitted by Petitioner are authentic. Petitioner obtained a doctor of medicine degree from the Universidad Nacional De Rosario in Argentina on July 1, 1980. Universidad Nacional De Rosario Medical School (School) is a medical school duly listed by the World Heath Organization. Graduates of the School are eligible to seek medical licensure in Florida by endorsement pursuant to the provisions found in Section 458.313, Florida Statutes, and the rules and regulations promulgated by the Board of Medicine (Board). On November 20, 1985, Petitioner satisfied the requirements of the Educational Council on Foreign Medical Graduates (ECFMG) and was issued ECFMG certificate no. 339-394-9. Petitioner obtained a passing score on the Federated Licensing Examination (FLEX) within 10 years immediately preceding his application for licensure by endorsement in Florida. Petitioner successfully completed one year of post- graduate training at Lincoln Medical and Mental Health Center as a resident in general surgery. Petitioner has satisfied all preliminary requirements of the Board to be considered for licensure by endorsement. Petitioner came to Florida in April, 1981. At that time he did not speak English and, therefore, was not able to pass the English portion of the ECFMG examination. In order to learn English, he enrolled at Miami High School. While enrolled at the high school, Petitioner volunteered his services to a clinic located approximately two blocks from the school. Petitioner worked at this clinic, LeGran Familia Clinic (Clinic), from 1982 until 1984, while he attempted to learn English. Since many of the doctors and patients at the Clinic spoke Spanish, Petitioner did not have difficulty. The Clinic had 20-22 licensed physicians on staff during the time Petitioner worked there. During the time Petitioner worked at the Clinic, he was primarily under the supervision of Dr. Mirabal. According to Dr. Mirabal, Petitioner was a brilliant, though ambiguous, physician. Petitioner did not represent himself to patients as a physician but was responsible for taking vital statistics, patient histories, and transcribing Dr. Mirabal's dictation. A licensed physician was present at the clinic at all times during which Petitioner performed these services. Subsequently, the Clinic came under investigation for Medicaid fraud. Petitioner was named as one of several defendants in the criminal prosecution. This charge was later dismissed by the prosecuting State Attorney and is not claimed as a basis for the denial of Petitioner's application for licensure. A second charge, the unauthorized practice of medicine, was alleged against Petitioner in State of Florida v. Gerardo Hevilla, Dade County Circuit Court, Criminal Division, case no. 84-8608. Initially, Petitioner pled not guilty to this charge. On May 3, 1985, Petitioner changed his plea to nolo contendere based upon a representation by the State Attorney to the trial judge that the Department of Professional Regulation had been contacted and had agreed that such plea would not be used against Petitioner in his future licensing efforts. This representation was made on the record and is a part of the plea colloquy. Prior to this presentation, Petitioner had refused, and intended to continue to refuse, to change his plea because of his concern that such a plea would adversely affect his ability to become licensed. The estimated cost to defend the criminal case exceeded $25,000. Petitioner accepted the negotiated plea as a financial concession only after the assurances were given that it would not affect his ability to become licensed. In January or February, 1984, Petitioner became employed at the South Florida Medical and Surgical Center (Center). He remained associated with the Center until June, 1986. While at the Center, Petitioner worked as a surgical assistant and helped the licensed surgeons as they directed. Petitioner did not treat patients independently of the licensed doctors and did not hold himself out as a licensed physician. He told one patient, Zoraida Wong, that he was a student. Petitioner assisted Dr. DeGeronimo and Dr. Alexander at the Center. These doctors found Petitioner to be competent, skilled, and a good worker. In fact, Dr. DeGeronimo was so pleased with Petitioner's work that he employed him at his private office until June, 1986. The work performed by Petitioner at the Center and with Dr. DeGeronimo consisted of setting up the operating area, ordering supplies, assisting in surgery by wiping blood, holding retractors, or cutting stitches, and bandaging wounds. All work was done under a licensed physician's supervision. From June, 1986 until July, 1987, Petitioner performed a one year residency at the Lincoln Medical Hospital. During this period, Petitioner was supervised by Drs. Stahl, the program director, and Kazigo, an associate professor. According to these physicians, Petitioner is qualified for licensure, possesses the requisite knowledge and skill, and successfully completely the residency program. Following the completion of his residency, Petitioner returned to Miami and is employed again as an assistant to Dr. DeGeronimo in his plastic surgery practice. Petitioner did not perform facial plastic surgery on the patient, Zoraida Wong. Petitioner did not withhold facts regarding his criminal plea from the Board.
Recommendation Based on the foregoing, it is RECOMMENDED: That The Board of Medicine enter a final order approving Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 30th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of December, 1987. APPENDIX TO RECOMMENDED ORDER RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: The first sentence in Paragraph 1 is accepted. With regard to the sentence, that portion which alleges Petitioner took courses at the University of Miami is accepted the rest is rejected as beyond the scope of evidence presented or irrelevant to these proceedings. Paragraph 2 is accepted as to all parts. With regard to paragraph 3A. with the exception of the reference to full-time study of English it is accepted. The record does not conclude whether or not Petitioner was in school full-time, he did enroll at Miami High School to learn English so to that extext it is accepted, otherwise rejected as not supported by the record. Paragraphs 3B-D are accepted. Paragraph 4 is accepted. Paragraph 5A. is accepted. The first sentence and last sentence of the first paragraph of paragraph 5B are accepted; the remainder of the first paragraph is rejected as irrelevant, immaterial, not supported by the record or speculation. The second, third and fourth paragraphs of Paragraph 5B are accepted. The first paragraph of SC is accepted. The second paragraph of SC is rejected as irrelevant; the Board has not claimed the allegations relating to the alleged Medicaid fraud were a basis for denial of Petitioner's license. The first three sentences of the first paragraph of Paragraph 6 are accepted. The remainder of the first paragraph is rejected as a recitation of testimony, irrelevant, or unsupported by the record. The second paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The third paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The fourth paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. With regard to these paragraphs, see finding of fact which concludes Petitioner did not operate on the patient Wong. Petitioner's testimony, Dr. DeGeronimo's, and Urquiza's testimony were deemed credible. Dr. Garcia-Lavin and Wong were not. The fifth paragraph of Paragraph 6 is rejected as argument, but as to facts therein see explanation in p. 13 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-11c are accepted. The first sentence of paragraph 12 is accepted. The remainder of paragraph 12 is rejected as contrary to the weight of credible evidence. Petitioner was not eligible to take the residency until he had mastered English to a sufficient level to pass required examinations. Petitioner's explanation for the period was acceptable. Paragraph 13 is accepted. Paragraph 14 is rejected as contrary to the credible evidence, argument or irrelevant. Petitioner is found to be credible. Paragraph 15 is rejected as contrary to the evidence, argument or irrelevant. Paragraph 16 is rejected as irrelevant, unsupported by the credible evidence or argument. Paragraph 17 is rejected as irrelevant or argument. That the Department did not actually pledge to hold Petitioner harmless by reason of the plea is not a disputed issue Petitioner had a reasonable basis for believing that to be the case; however, and was induced to change his plea on that basis. Paragraph 18 is accepted but is irrelevant; see p. 7 above. The first three sentences of paragraph 19 are accepted. The record does not disclose how many licensed physicians may performed surgery at the Center; therefore the fourth sentence is rejected. The record does support a finding that Drs. Alexander, DeGeronimo, and Garcia-Lavin worked there and that the facility only used one surgical room. Paragraph 20 is rejected as irrelevant to the issues of this case. Paragraph 21 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues of this case. Paragraph 22 is rejected as irrelevant, immaterial, contrary to the evidence or unnecessary to the resolution of the issues of this case. The first two sentences of paragraph 23 are accepted, the remainder is rejected as contrary to the credible evidence, irrelevant, or immaterial to the resolution of the issues of this case. Paragraphs 24-26 are rejected as contrary to the weight of the evidence, irrelevant or immaterial to the resolution of the issues of this case. It is possible that Petitioner remained associated with the Center and also worked for Dr. DeGeronimo. The testimony of the three (Petitioner, Alexander, and DeGeronimo) does not conflict. COPIES FURNISHED: Rodney W. Bryson Bryson & Berman, P.A. Suite 219 8525 N.W. 53rd Terrace Miami, Florida 33166 Ann Cocheu Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact STIPULATED FACTS The facts set forth below in paragraphs 1.-20. are stipulated to by the parties. The initial notarized application of Petitioner, Henry Calas, for licensure by endorsement was filed on September 29, 1993, and is known as the "September 29 Application." A second notarized application submitted by Dr. Calas on or about January 27, 1994, is known as the "January 27 Application." A third notarized applcation was submitted by Dr. Calas on or April 25, 1994, and is identified as the "April 25 Application." This third application was filed at the direction of the Credentials Committee during its March 25, 1994 meeting. On March 25, 1994, Petitioner appeared before the Credentials Committee of the Board of Medicine. At the time, the Credentials Committee had two applications before it, the September 29 Application and the January 27 Application. On May 13, 1994, Dr. Calas appeared before the Credentials Committee of the Board of Medicine. At that time, the Credentials Committee had before it all materials dated prior to that time that are presently contained in the parties' joint exhibit 1. This exhibit consists of all materials in Petitioner's application file. By order filed August 10, 1994, the Board of Medicine approved Dr. Calas' application for licensure: . . .contingent upon applicant being on probation for 2 years, 6 months of said probation shall be under indirect supervision by a licensed physician who shall review 50 percent of patient records including billing. The Board hereby states as the basis for this decision that you misrepresented your qualifi- cations on your application for licensure. See Section 458.331(1)(gg). Petitioner timely filed his Petition for Formal Hearing disputing the Board's finding that he had misrepresented his qualifications on his application and requested that he be granted an unrestricted Florida medical license. Dr. Calas obtained his Doctor of Medicine degree from Universidad Central Del Este in the Dominican Republic on February 3, 1984. Dr. Calas participated in a residency in Internal Medicine at Northwestern Ohio College of Medicine from May 15, 1989, until December 30, 1990. Throughout that time, the program director was Dr. Andre J. Ognibene, Professor of Medicine and Chairman of the Department of Medicine. Dr. Callas successfully completed a three year residency in Neurology at Albany Medical College, Albany Medical Center Hospital, Albany, New York from January 1, 1991 to December 31, 1993. During his third year, Petitioner served as Chief Resident. Dr. Calas meets all statutory educational and training qualifications required of him for licensure as a physician in Florida. THE ELLIS HOSPITAL ISSUE In his September 29, 1993 application on page 3, Dr. Calas represented that he currently had privileges at Ellis Hospital stating "Ellis Hospital 1101 Nott St. Schenectady NY 12308 I just obtained privieleges (sic), and I have not begun to work there yet." Dr. Michael SS. Jakubowski, Vice President, Medical Affairs, Ellis Hospital, wrote the Florida Board of Medicine regarding Petitioner on April 6, 1994. THE NORTHEASTERN OHIO COLLEGE OF MEDICINE ISSUE On October 18, 1990, Dr. Calas and Dr. Ognibene met regarding the Petitioner's record and performance in his Internal Medicine Residency. That meeting was memorialized by Dr. Ognibene in a document entitled, "Counseling Session/Longitudinal Evaluation" and signed by Dr. Ognibene and placed in Petitioner's file at Northeastern College of Medicine. On October 18, 1993, Dr. Andre J. Ognibene wrote the Florida Board of Medicine to return a training and evaulation form of the Board regarding Petitioner. On October 28, 1993, the Medical Board staff wrote Dr. Ognibene inquiring, in part, "Accordingly, please clarify why [Calas] left prior to completion, or if he was given credit for a complete year, on what basis(es); indicate whether he left in good standing and specify if he was (or would have been) offered a contract to continue to complete the program." On November 4, 1993, Dr. Ognibene responded by letter to the Board staff's letter of October 28, 1993. On February 11, 1994, the Medical Board staff wrote Dr. Ognibene, acknowledged receipt of his November 4, 1993 letter and inquired as follows: Please specify if he was (or would have been) offered a contract to continue to complete your program? On February 14, 1994, Dr. Ognibene responded by letter to Board staff's letter of February 11, 1994. At the request of Dr. Calas, Dr. Ognibene wrote a letter to the Board of Medicine dated April 25, 1994, which was received by the Board in time for the Credentials Committee meeting of May 13, 1994. OTHER FACTS By letter dated January 12, 1994, Petitioner represented to the Board of Medicine that he "completed PGY-1 [Post Graduate Year 1] in good standing" and "chose not to remain in medicine despite the offer of a PGY-2 contract" in the residency program at Northeastern Ohio College of Medicine's internal medicine program. By letter dated January 15, 1994, to an administrative assistant to the Board, Petitioner stated he "declined" the contract for a second year. In actuality, Petitioner had completed PGY-1 in good standing, but was counseled by Dr. Andre J. Ognibene, the program director, to seek another specialty. Petitioner was perceived as deficient in organizational skills necessary to meet the complexities of internal medicine. Petitioner elected neurology. Ognibene concurred with Petitioner's choice "because he could then focus on one organ system and not 17 organ systems which were rather difficult for him [Petitioner] to assimilate." If Petitioner were unable to secure a PGY- 2 position in neurology, Ognibene agreed that Petitioner would be permitted to stay for another year in internal medicine, although there was no expectation by Ognibene that Petitioner could complete the internal medicine residency. Petitioner, in effect, was promised a safety net in the event he did not secure a neurology position, but he was not "offered" a position for the subsequent year in internal medicine which he could have immediately accepted or declined. Petitioner's statement on the September 29 application that he currently had privileges at Ellis Hospital was also artfully inaccurate. Petitioner possessed no documentary evidence confirming any grant of privileges from the hospital to himself at the time he completed the application. Instead, if his testimony is credited, he relied upon the representation of a clerical worker at the hospital made to him in the course of a telephone conversation which he instigated wherein he was allegedly told that "all approvals had been received and he was ready to begin." This recital by Petitioner of a statement made to him on the telephone by an individual known only as "Nancy" is not corroborated by other direct evidence and is further complicated by Petitioner's almost hypertonic demeanor and behavior while testifying; consequently, Petitioner's testimony on this point is not credited. Although his application was pending, privileges are granted only when a staff vacancy ocurrs and employment begins. Petitioner knew at the time that he stated he had privileges at Ellis Hospital that a neurology position on the staff was not yet available and added the words "I have not begun to work there yet." As stated by Petitioner at the final hearing, he would have better served his own interest by not representing that he possessed privileges since the purpose of disclosure of such information is to enable the Board of Medicine to review an applicant's performance. Petitioner's action in stating that he possessed privileges at Ellis Hospital constituted misrepresentation by him, notwithstanding the addition by him on the application of the words "I have not begun to work there yet".
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application, absent the legal determination of the Board of Medicine to permit the conditioned admission of Petitioner to the practice of medicine in the State of Florida. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 6th day of December, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Adopted. Adopted as to first sentence, remainder rejected as redundant. 3.-12. Adopted. 13.-35. Rejected, subordinate to HO findings. Respondent's Proposed Findings. 1.-10. Adopted, but not verbatim and frankly in much more condensed form than that proposed by Respondent's counsel. COPIES FURNISHED: Wilson Jerry Foster Attorney at Law 227 E. Virginia St. Tallahassee, FL 32301 Gregory A. Chaires Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Harold D. Lewis General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration The Northwood Centre 1940 N. Monroe St. Tallahassee, Florida 32399-0750
Findings Of Fact In February, 1984 Petitioner applied to Respondent for licensure by examination under Section 458.311(2), F.S., but after review of said application at a meeting held on June 10, 1984, Respondent issued an Order dated July 21, 1984 denying said application. Petitioner received a degree which is designated Doctor of Medicine on May 2, 1983 from the Universidad Techologica de Santiago, (UTESA), Santo Domingo, Dominican Republic. He has been in residency at Orlando Regional Medical Center since June 28, 1983. Various required clerkships were performed by Petitioner between August 2, 1982 and February 28, 1983 in hematology, obstetrics and gynecology, pediatrics, dermatology and ENT/0phth., and were performed completely, or partially at osteopathic hospitals, or under the supervision of osteopathic physicians. An additional one month elective clerkship was also performed in April 1983 at Southeastern College of Osteopathy. Petitioner passed the exam given by the Educational Commission for Foreign Medical Graduates (ECFMG) on March 15, 1983, but has not been certified due to the need for additional institutional verification. Respondent informed Petitioner of the decision of ECFMG to withhold verification of certification and also informed Petitioner of its duty to approve or deny an application for licensure within ninety (90) days, unless waived by the applicant. Petitioner declined to consent to a waiver and requested Respondent to act on his application without verification of an ECFMG certificate.
The Issue Whether or not Respondent should be disciplined for violations charged under Count I of the Administrative Complaint pursuant to Rule 210- 10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [for intentionally or negligently failing to file a report or record required by state or federal law] and pursuant to Rule 210-10.005(1)(e)1. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, inaccurate recording, falsifying or altering of patient records]; under Count II pursuant to Rule 210- 10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, acts of negligence or gross negligence, either by omission or commission]; and under Count III pursuant to Rule 210- (1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, practicing beyond the scope of the licensee's license, educational preparation or nursing experience].
Findings Of Fact At all times material, Respondent was licensed as a registered nurse in the state of Florida, Board of Nursing license number 84080-2. At all times material, Respondent was employed as a registered nurse/nurse supervisor with North Florida Reception Center (NFRC) Hospital, part of the Florida Department of Corrections. On December 13, 1989, Officer Russell Adler was on duty in 05 dormitory. It was called to Officer Adler's attention and he observed that an inmate, Artis Baker, was crawling around on the floor and was having trouble breathing. At approximately 11:29 p.m. Officer Adler turned over custody of inmate Baker to Officer Willie Hogan for escort to the emergency room. Officer Hogan escorted inmate Baker to the emergency room and went elsewhere while inmate Baker was seen by Respondent, who was the nurse on duty. Shortly thereafter, Respondent returned custody of inmate Baker to Officer Hogan. Officer Hogan testified that the Respondent informed him at that time that he, the Respondent, had given Baker a shot "to calm him down to rest." Hogan escorted inmate Baker back to his dormitory. Officer Adler testified that Hogan told him that Respondent had given Baker "some sleeping medication." However, other witnesses testified that when Respondent was questioned by Dr. Richtine and others after Baker was found dead, Respondent denied that he had medicated Baker. In light of the objective evidence of the autopsy, these contrary so-called "admissions" of Respondent are not sufficient for making a finding of fact that Respondent, did, in fact, administer any drug to Baker. See, Finding of Fact 14. Contrary to NFRC policy, neither inmate Baker's visit to the emergency room nor any medication which may have been administered by Respondent was recorded by Respondent in inmate Baker's patient record. Diane Richtine, M.D., was the on-call physician that night. Contrary to NFRC policy and protocol, Respondent never notified Dr. Richtine that there was an inmate who had presented himself to the emergency room for possible treatment. The foregoing NFRC policies requiring notations in the patient's record and the notification by the on-duty nurse to the on-call physician are contained in a written policy and procedure manual, receipt and reading of which Respondent had acknowledged in writing prior to December 13, 1989, but there was no affirmative proof that these policies or the reports/records required by them are "reports or records required by state or federal law." No statute or Florida Administrative Code rule adopting the Department of Corrections NFRC policy manual was introduced by Petitioner or referenced by any witness. Inmate Baker was returned by Officer Willie Hogan to the dormitory at approximately midnight on December 13, 1989. At 5:55 a.m. on December 14, 1989, Officer Larry Feltner was informed by other inmates that inmate Baker was not responding to the wake-up calls. Officer Feltner checked inmate Baker for a pulse, but was unable to locate one and then called the control room to inform its occupants of the incident. Sergeant Allan Ross and Captain J.D. Wainwright responded. They entered the dormitory and checked inmate Baker for a pulse, and finding none, removed Baker from his bunk and attempted to administer cardiopulmonary resuscitation. The Respondent, David Pearl, then entered the dormitory and while Captain Wainwright and Sergeant Ross were present, checked inmate Baker for life signs and found none. Baker's body was thereafter removed from the dormitory and taken to the NFRC morgue. The Respondent failed to notate inmate Baker's death on his patient records. The first notation of death was made by E. Johnson, R.N., at 8:15 a.m. on December 14, 1989. Patricia K. Bassitt, R.N., was accepted as an expert witness on general nursing practices and record keeping. In her expert opinion, Respondent's failures to notate inmate Baker's visit to the emergency room, to notate his administration of medication to inmate Baker (which administration of medication the expert witness erroneously took to be factually established), and to notate Baker's subsequent death constituted inaccurate keeping of patient records; also in her opinion, Respondent's actions constituted negligent actions and actions below minimum standards of acceptable care. Further, Ms. Bassitt opined that Respondent had acted beyond the scope of good nursing practice, had acted contrary to good nursing practice, and that his actions had been "very lacking." Despite an autopsy performed on inmate Baker, it was not possible to determine the cause of his death. Nothing beyond his regular medications for chronic hypertension was found in his system. No toxic substance, legend drug, or drug which would cause him to sleep was found.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a Final Order finding Respondent not guilty of the portion of Count I of the Administrative Complaint brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [intentionally or negligently failing to file a report or record required by state or federal law], guilty of the portion of Count I brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct, specifically, inaccurate recording of patient records]; guilty of Count II brought pursuant to Rule 210-10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically acts of simple negligence]; and not guilty of Count III brought pursuant to Rule 210-10.005(1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically practicing beyond the scope of the licensee's license, educational preparation or nursing experience], reprimanding Respondent for his actions, and placing his license on probation for two years with the special condition that he successfully complete courses in charting/assessment in addition to other normally required continuing education courses, together with a $250 administrative fine. RECOMMENDED this 27th day of February, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4408 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-5 are accepted. 6-7 are covered in FOF 6 and 10 and the conclusions of law. 8-19 are accepted. 20-22 are accepted as modified to accurately reflect the witness' testimony and to the extent they are not accepted, they are rejected as contrary to the credible record evidence. Respondent's PFOF: None submitted. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 David Pearl 1106 1/2 West Princeton Street Orlando, Florida 32804 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner is entitled to sit for the examination for licensure as a physician assistant.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: 1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization ... Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. The Order cited the following four grounds for the denial: The applicant (Petitioner) does not have a medical degree as required by Sections 458.347(b)1.b. and 458.311(1)(f)3.a., Florida Statutes. The applicant has been unable to provide adequate evidence that he was a resident in Florida on July 1, 1990. The applicant has failed to account for all time and activities on his application from July 1981 - May 1982. The applicant has failed to list all employment activities on his application when compared to the Resume of Qualifications he submitted. Petitioner attended medical school at the Universidad Central del Este (UCE) in the Dominican Republic from 1975 to 1981. Petitioner testified that he completed his assigned curriculum and that he participated in graduation exercises. Petitioner did not receive a diploma or a medical degree from UCE because he owed the university for tuition. In response to an inquiry from Respondent, the Dean of Medicine of UCE provided the following information: ... [W]hile it is true that [Petitioner] completed the curriculum of our School of Medicine, he has other requisites to be completed. Among these is an outstanding debt for registration fees at our University. Until this debt is satisfied he cannot be awarded the degree of Doctor of Medicine, nor can any documents be issued. Petitioner's application and the documentation he initially submitted in support thereof did not establish that Petitioner met the residency requirements of Section 458.347(7)(b)1.d., Florida Statutes. The evidence submitted at the formal hearing established that Petitioner was a resident of the State of Florida on July 1, 1990, and at all other times pertinent to this proceeding since that time. Petitioner, in his application for licensure, failed to set forth his activities between July 1981 and May 1982./1 Petitioner has subsequently provided that information to the Respondent. During that time, Petitioner was unemployed and studying for his medical examinations. Petitioner, in his application for licensure, failed to completely set forth his employment history, including his work as a medical health counselor and as a mental health supervisor. His employment history is required by the application form and should have been included as part of his application package. All information pertinent to his employment has now been provided by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application on the grounds that he is not a graduate of a medical school recognized by the World Health Organization. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of July, 1993.
Findings Of Fact The application of Petitioner, John David Young, M.D., for licensure by endorsement initially was filed on March 13, 1991. The initial application was not completed within one year and, under F.A.C. Rule 61F6-22.016, was not acted upon by the Board of Medicine. The Petitioner reapplied on September 1, 1992, and his application was denied by Respondent's Order rendered on November 4, 1993. The basis of denial stated in the November 4, 1993, Order is: You failed to show a medical education as that term is used in Chapter 458 in Sections 458.313(1)(a) and 458.311(1)(f) and have failed to show medical practice as required by Section 458.313(1)(c). Additionally, you have misrepresented your education. Sections 458.313(1)(a) and (7); 458.311(1)(c) and (d); 458.331(1)(a) and (gg), F.S. Medical Education Dr. Young received his Doctorate of Medicine Degree from Grace University School of Medicine, St. Kitts, Nevis, West Indies, June 4, 1986. Grace University is registered with the World Health Organization. Dr. Young began his medical education on May 5, 1981, at the Universidad de Mundial, Dominican Republic, where he completed one year as reflected by the transcripts found at Joint Exhibit 1, page 195. Dr. Young transferred to CETEC, Dominican Republic, because of his concerns that Universidad de Mundial would close within a few years. The transfer to CETEC occurred in late December, 1981. CETEC allowed Dr. Young to take pathology and physiology at the University of Southern California on the condition that CETEC would administer exams on those subjects before they would give him credit. The University of Southern California did not give credit for the courses, which was not a concern to Dr. Young because he was seeking credit from CETEC upon taking the CETEC examination. CETEC attempted to establish a liaison with Orange State University School of Medicine in Southern California whereby students could take courses at Orange State and receive credit by CETEC. Dr. Young completed his basic science course work at Orange State as reflected by the transcript at Joint Exhibit 1, page 193, for which CETEC gave him credit. Melvin A. Shiffman, M.D., was temporary dean at Orange State University and submitted a letter to the Board of Medicine confirming Dr. Young's attendance from May through August, 1982, and that Dr. Young took the CETEC final examinations on all the subjects taught at Orange State for which they gave credit. Dr. Young began his clinical rotations upon completion of his basic sciences as follows: Basic Medicine at Pine Ridge Indian Health Hospital, Pine Ridge, South Dakota, from August 31, 1982 to September 30, 1982; surgery at Oral Roberts University School of Medicine from October 4, 1982 to December 22, 1982; surgery at Fitkin Hospital, Swaziliand, South Africa, in 1983; basic medicine at Pine Ridge Indian Hospital, Pine Ridge, South Dakota, from April 18, 1983 to May 29, 1983. While at Pine Ridge Indian Hospital the second time, Dr. Young was asked to leave by the acting hospital administrator, on the allegation that he was attending CETEC, which was not an approved school, which in fact it was. In shock at being asked to leave based on those allegations, Dr. Young travelled to Kansas City to stay with relatives to study for the Educational Commission for Foreign Medical Graduates (ECFMG) examination required for all foreign medical graduates. The Petitioner took and passed the ECFMG examination on July 27, 1983. Upon completion of the examination, Dr. Young continued his clinical rotations as follows: Psychiatry at Bay Front Medical Center, University of South Florida, St. Petersburg, Florida; medicine at University of Natal, Republic of South Africa, from September 26, 1983 to January 1, 1984; obstetrics/gynecology at Addington Hospital, University of Natal, Republic of South Africa, from January 3, 1984 to March 4, 1984; pediatrics from March 12 to May 13, 1984 at Addington Hospital; University of Natal; and surgery from May 13, 1984 to July 16, 1984 at Addington Hospital, University of Natal. In late May or early June, 1984, while Dr. Young was in the surgery rotation, he learned, upon calling home and speaking to his mother, that CETEC closed as of March 4, 1984. Dr. Young was shocked at learning of the closing, but decided to complete the surgery rotation, since he was working with a well known professor, and to return to the U.S. after that to try to find another medical school. Dr. Young registered at the University of Health Science in Antigua in September, 1984. The University of Health Science required Dr. Young to take their exams for credit of his basic sciences course work, which he took in December, 1984. Because the transcripts from CETEC were not available, Dr. Young produced to the University of Health Sciences cancelled checks showing payment for his tuition, which was accepted. The University of Health Sciences, therefore, required Dr. Young to pass their examinations for the basic science courses in lieu of the CETEC transcript. Dr. Young found the exams to be suspicious in that they seemed to be random photocopies of medical text book pages. Accordingly, Dr. Young went to the U.S. Embassy at Antigua to discuss the medical school and was advised to change schools because of problems they were having with the school. Dr. Young learned later that 30 former students filed suit in federal court against the school for the irregularities. Upon completion of the examinations, Dr. Young continued his rotations. He did a rotation in cardiology at Bay Pines Veterans Hospital, St. Petersburg, Florida from December 18, 1984 to January 31, 1985. He did a rotation in internal medicine at Metropolitan General Hospital, Pinellas Park, Florida from February 1, 1985 to April 30, 1985. He did a rotation in pediatrics with Dr. DeGall at All Childrens Office in St. Petersburg, Florida from May 1 to July 29, 1985. Dr. Young then enrolled in Grace University Medical School, St. Kitts, Nevis, West Indies, in December, 1985. Grace University gave Dr. Young credit for course work done for previous medical schools approved by the World Health Organization, but told him that he would be required to take validation exams for that course work and would probably need to take some additional clerkships. This was explained to the Board of Medicine by the Vice President and CEO of Grace University, J.P. McNaughton-Louden, M.D., by letter dated February 20, 1991, found at Joint Exhibit 1, page 103. In that letter, Dr. Louden also confirms that CETEC was approved by the World Health Organization, that CETEC closed while Dr. Young was taking rotations in South Africa, that students at University of Health Sciences in Antigua were advised by the U.S. Consul authorities to transfer because of problems, that Dr. Young would be given credit for studies done at medical schools approved by the World Health Organizations co-validated by examinations at Grace University, and that Dr. Young's clerkships had been accepted and that he graduated on June 4, 1986. The transcripts of Grace University found at Joint Exhibit 1, page 104, shows that Dr. Young was admitted in March, 1984, even though his actual enrollment was December, 1985, because the school dated the admission retroactively to the date that CETEC closed. Dr. Young listed what he considered to be his accurate date of enrollment on his application for licensure as December 21, 1985. Dr. Young did the following additional rotations for Grace University: pediatrics with Dr. DeGall in St. Petersburg, from December 29, 1985 to February 26, 1985; and general medicine and emergency medicine at a refugee camp under the auspices of the United States and Christian Missionary Life from March 3 to April 30, 1985. FLEX Exam Dr. Young took and passed the Federation of State Medical Boards' Licensing Examination (known as "FLEX") on the first attempt in December, 1988. Residency 21 Dr. Young completed one year of residency in internal medicine at Marshall University on January 31, 1989. Maurice A. Mufson, M.D., Dr. Young's professor and Chairman of the Department of Internal Medicine, submitted an evaluation of the residency to the Board of Medicine recommending him as qualified and competent. After completion of the one year residency in internal medicine, Dr. Young realized that in order to fulfill his desire to practice missionary medicine, he would need a broader education. Accordingly, he changed his residency to family practice. Marshall University gave Dr. Young seven months credit from his one year of internal medicine residency towards his family practice residency which was completed in June, 1991. Robert B. Walker, M.D., Dr. Young's professor and Chairman of the Department of Family and Community Health, submitted to the Board of Medicine and evaluation of Dr. Young's family practice residency recommending him as qualified and competent. The AMA physician profile on Dr. Young, submitted to the Board of Medicine by the AMA, shows that Dr. Young completed the family practice residency and one year of internal medicine residency. However, the AMA profile mistakenly shows Dr. Young's internal medicine residency as from 2/87 to 1/88, instead of the accurate dates of 2/88 to 1/89. Dr. Young brought this error to the attention of the AMA which did not correct it. Letters recommending Dr. Young for licensure were sent to the Board of Medicine by: Stephen Petrany, M.D., Dr. Young's former Director of the Family Medicine Residency at Marshall University; and Jack Ditty, M.D., a Board certified dermatologist in Kentucky who was adjunct professor at University of Kentucky and Marshall University (who writes that Dr. Young is of high moral character and has knowledge and experience which would be necessary to practice medicine in Florida.) Post-Residency After completion of his residency in 1991, Dr. Young became licensed to practice medicine in West Virginia. Since his licensure, there have been no complaints or probable cause determinations made against his license, and no malpractice claims have been filed against him. Since completion of his residency, he has served as Assistant Professor of Clinical Medicine at the University of West Virginia and as Adjunct Professor of Medicine at Marshall University School of Medicine. He also has worked as a ship's doctor for a cruise line, worked as Assistant Professor of Medicine at University of West Virginia, moonlighted as an emergency room doctor in Beckley, West Virginia, lectured extensively in the Republic of South Africa on sexually transmitted diseases, and has worked as an emergency room doctor for the U.S. Military in Arizona. ECFMG Certification The Educational Commission for Foreign Medical Graduates (ECFMG) verifies the medical education of each person to whom it awards a certificate following passage of its examination. The ECFMG's investigation of Dr. Young's medical education took several years, because of allegations involving a Mr. Pedro de Mesones falsifying information from some medical schools in the Dominican Republic, including CETEC, on behalf of some applicants to various state medical boards. Dr. Young never met nor spoke with Pedro de Mesones nor was he involved with him in any way. The ECFMG advised Dr. Young of this investigation by letter dated June 7, 1984, found at Joint Exhibit 1, page 167. Further complicating the ECFMG investigation of Dr. Young's medical education was the closing of CETEC. The Dominican Republic government established an agency known as CONES to assist in getting transcripts of students who attended CETEC. Dr. Young wrote to CONES in an attempt to obtain his CETEC transcript from CONES. Even though Dr. Young was unable to obtain transcripts of CETEC from CONES, ECFMG verified all of Dr. Young's medical education, clinical rotations, and residency. The ECFMG investigation of Dr. Young's medical education concluded with no irregularities in his credentials having been found. The ECFMG issued its certificate to Dr. Young on October 13, 1987; it is valid indefinitely. Specialty Board Certification Dr. Young is certified as a diplomate of the American Board of Family Practice for the period of 1992 - 1999. The certificate from the American Board of Family Practice indicates: that Dr. Young met the requirements to be certified as a Diplomate of the Board; that he has completed a 3-year residency; and that the American Board verified Dr. Young's medical education and found it to be authentic. Board of Medicine Investigation As part of the routine investigation of Dr. Young's application for licensure filed with the Board of Medicine, the Board staff wrote to CONES requesting confirmation of the CETEC education and received a response dated March 6, 1992, by letter found at Joint Exhibit 1, page 87, stating that Dr. Young was not found on their lists and that they could not process the Board's request until they had Dr. Young's student registration number. However, an earlier certification by CONES dated May 12, 1987, found at Joint Exhibit 1, pages 9 and 10, shows that CONES did have Dr. Young's student identification number and had a file on him. Paul L. Allyn, M.D. also confirmed to the Board of Medicine by letter dated June 30, 1993, found at Joint Exhibit 1, page 88, that Dr. Young did attend CETEC. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on the March 6, 1992, letter rather than the May 12, 1987, letter. The Board staff contacted the University of Health Sciences to confirm Dr. Young's attendance and received a letter from its President dated October 21, 1991, found at Joint Exhibit 1, page 99. That letter states that Dr. Young did not receive credit for his previous medical education, that he attended the institution from September 19, 1984 to July 11, 1985, that he did not leave the institution in good standing, and that he was dismissed because he was unable to provide the school with official transcripts from the previous medical school he attended. Dr. Young had not seen that letter until a few months before hearing while reviewing the Board's file on him in preparation for the hearing. Dr. Young takes issue with the statements in the letter because the school did give him credit for the rotations he completed while enrolled at Universidad de Mundial and because he never had been told that he left the institution in poor standing. Dr. Young left the University upon advice of the U.S. Consulate in Antigua. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on this letter rather than Dr. Young's affidavits submitted with his application which contradict the letter. The Board obtained and reviewed the ECFMG file on Dr. Young in considering his application. In the ECFMG file at Joint Exhibit 1, page 230, is a letter to the ECFMG from John Casken, Quality Assurance Coordinator, Department of Health, Education, and Welfare, dated May 15, 1985, relating to Dr. Young's second clinical rotation at Pine Ridge Indian Health Hospital in 1983. In the letter, Mr. Casken states: that a closer look at Dr. Young's credentials after he presented himself for the second time showed that he had basically no medical education; that Dr. Young was asked to leave; and that, had they known in 1982 when he appeared for his first rotation what they knew in 1983, they would not have taken on Dr. Young as a m edical student. Dr. Young first saw that letter a few months before the hearing while preparing for trial. Dr. Young disagrees with that letter in that the schools he was attending, Universidad de Mundial, and after that, CETEC, were both approved by the World Health Organization. Further, a letter written on April 18, 1985, by Leonard L. Finger, Hospital Administrative Officer, Department of Health, Education, and Welfare, to the ECFMG, found at Joint Exhibit 1, page 231 , verifies Dr. Young's rotation without adverse comment. Further, the ECFMG found no problem with Dr. Young's education or with the rotations at Pine Ridge. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on Dr. Caskin's letter rather than Mr. Finger's letter and the fact that all of Dr. Young's medical schools were approved by the World Health Organization. Board of Medicine Practice and Policy The Board of Medicine has licensed individuals who have attended CETEC. The Board of Medicine and its staff rely upon the ECFMG certifications of applicants as verification of their education. The certification by the American Board of Family Practice complies with the requirement of Rule 61F6-22.004(2) and 61F6-22.018(3)(d). The ECFMG certificate complies with the requirements of Section 458.311(1)(f), (2), and (3), Florida Statutes; There is nothing in the rules of the Board or Chapter 458, and no Board policy or practice, which prohibits an applicant from going to more than one university or medical school, from going to more than one medical school and failing out of one, or from going to a school that later goes out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Medicine, enter a final order granting the Petitioner's application for licensure by endorsement. RECOMMENDED this 30th day of September, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7146 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and unnecessary. 5.-15. Accepted and incorporated. 16. The pediatrics rotation at Addington Hospital, University of Natal was from March 12 to May 13, 1984, and the surgery rotation was from May 13, 1984 to July 16, 1984. Otherwise, accepted and incorporated. 17.-30. Accepted and incorporated. 31.-37. Accepted but subordinate and unnecessary. 38. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. First sentence, rejected as being contrary to the greater weight of the evidence. Second sentence, accepted but subordinate and unnecessary. 7.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lack of a credible Orange State transcript to support the Petitioner's testimony is more a reflection on Orange State's credibility than on the Petitioner's. Orange State was in existence for a short period of time, never was recognized by the State of California, and has been defunct for about ten years. It is understandable why the Petitioner has had difficulty getting a credible response from Orange State. The irregularities in the response from Orange State do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, it is even more understandable why the Petitioner has had difficulty getting a credible response from CETEC. As with Orange State, CETEC was closed about ten years ago. In the case of CETEC, which was in the Dominican Republic, the closing was under allegations of misconduct and fraud. Records were unavailable for a period of time while the government of the Dominican Republic investigated. Later, records were destroyed. As with Orange State, the irregularities in the response from CETEC do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Rejected as contrary to the greater weight of the evidence that the Respondent did not leave UHSA in good standing. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence. First sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Third and fourth sentences, rejected as contrary to the greater weight of the evidence. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. 20.-21. Accepted and incorporated to the extent not subordinate or unnecessary. The city in South Africa was Durban, not Durham. CETEC was the affiliate until it closed in March, 1994. The rest is accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted. The rest is rejected as being contrary to the greater weight of the evidence. 24.-25. Accepted and incorporated. 25. Accepted but unnecessary. (No such finding was made.) COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires Assistant Attorney General Department of Legal Affairs Administrative Law Section PL-01, The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issues to be determined are whether Petitioner meets the requirements for licensure by endorsement pursuant to section 458.313, Florida Statutes (2013), and whether the Board’s interpretation of section 458.311(3), Florida Statutes, is an unadopted rule in violation of section 120.54(1), Florida Statutes (2013).
Findings Of Fact Based upon the stipulations of the parties and the documentary evidence presented, the following facts are found: Petitioner, Leon Rawner, M.D., is a licensed medical doctor in the state of Wisconsin and an applicant for licensure as a medical doctor by endorsement in Florida. The Florida Board of Medicine is the agency charged with the licensing and regulation of allopathic medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Applicants for licensure by endorsement must meet the requirements specified in section 458.313. Those requirements include meeting the qualifications identified in section 458.311(1)(b)-(g) (alternative one) or section 458.311(1)(b)-(e), (g), and (3) (alternative two). Petitioner is over 21 years of age, and has submitted a set of fingerprints on a form and under procedures specified by the Department of Health, along with a payment in an amount equal to the costs incurred by the Department of Health. Petitioner has successfully passed the required criminal background screening. Petitioner’s application for licensure by endorsement demonstrates that he is licensed to practice medicine in another jurisdiction, the state of Wisconsin, and that he has been active in the practice of medicine for at least two of the four years immediately preceding the application. Petitioner has a clean record in his current medical practice in Wisconsin and is not under any investigation in any jurisdiction for an act or offense which would constitute a violation under section 458.331, and has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to section 458.331. Petitioner has completed the equivalent of two academic years of pre-professional, postsecondary education, as determined by rule of the Board, which included, at a minimum, courses in anatomy, biology, and chemistry prior to entering medical school. Petitioner received a bachelor’s degree from Brandeis University, an accredited United States university. Petitioner has passed the appropriate medical licensure examinations, the United States Medical Licensing Examination, Step-1, Step-2, and Step-3. Petitioner holds an active, valid certificate issued by the Educational Commission for Foreign Medical Graduates (ECFMG) and has passed the examination used by the Commission. In 2006, Petitioner graduated with a degree of Doctor of Medicine from American University of the Caribbean School of Medicine. Petitioner graduated from an allopathic foreign medical school (American University of the Caribbean School of Medicine) which is recognized by the World Health Organization. Petitioner completed all of the formal requirements for graduation from American University of the Caribbean School of Medicine. Petitioner’s application for licensure demonstrates that he has completed the academic year of supervised medical training prior to graduation as required under section 458.311(3)(d). Petitioner did not graduate from an allopathic medical school or allopathic college recognized and approved by an accrediting agency recognized by the United States Office of Education. Petitioner did not graduate from an allopathic medical school or allopathic college within a territorial jurisdiction of the United States recognized by the accrediting agency of the governmental body of that jurisdiction. Petitioner is not a graduate of an allopathic foreign medical school registered with the World Health Organization and certified pursuant to section 458.314, Florida Statutes, as having met the standards required to accredit medical schools in the United States or reasonably comparable standards. Petitioner has not completed an approved residency or fellowship of at least two years in one specialty area. Petitioner’s application for licensure demonstrates that he does not meet the postgraduate training requirements under section 458.311(1)(f)3. Petitioner completed one year of residency training in the Internal Medicine Program at Mt. Sinai-Elmhurst Hospital Center, Queens, New York. Besides the residency training program at Mt. Sinai– Elmhurst Hospital Center, Queens, New York, Petitioner has not completed any other residency or fellowship training. Petitioner does not have two years of any residency or fellowship training which can be counted toward regular or subspecialty certification by a board recognized and certified by the American Board of Medical Specialties. Since January 24, 2011, Dr. Rawner has been practicing medicine in Wausau, Wisconsin, as a staff physician with Knee Pain Solutions Center. Accordingly, he has been in the active practice of medicine for the two years preceding his Florida application. Dr. Rawner submitted his application for licensure by endorsement on March 13, 2013. Supplemental documentation was filed with the Board by letter dated March 18, 2013. In that letter, Dr. Rawner expressly stated that he was relying on the second alternative for establishing licensure by endorsement, which does not include the requirements identified in subsection 458.311(1)(f). On April 3, 2013, the Board requested additional information, and in response, Dr. Rawner provided a copy of his undergraduate degree and information related to his one year of supervised medical training. Other information requested in the April 3, 2013, letter was sent directly to the Board office by the appropriate agencies, including an official United States medical examination transcript, indicating that Dr. Rawner passed USMLE Steps I, II, and III; a letter from the residency program director, indicating that Dr. Rawner completed one year of residency training; confirmation from the Wisconsin Medical Board confirming his current, valid medical license in the state of Wisconsin; an American Medical Association (AMA) profile letter; and Dr. Rawner’s fingerprints and clear background check. Program Operations Administrator Chandra Prine notified Dr. Rawner by letter dated June 26, 2013, that he was required to appear before the Credentials Committee of the Board. The purpose of the appearance was to discuss: Failure to meet the training requirement pursuant to section 458.313(1)(a), 458.311(1)(f)3.c., Florida Statutes. Failure to complete an academic year of supervised clinical training pursuant to section 458.311(3)(d), Florida Statutes. Dr. Rawner appeared before the credentials committee of the Board of Medicine on August 1, 2013. The committee recommended that his license be denied. On August 22, 2013, the Board of Medicine issued a Notice of Intent to Deny Licensure, stating that it intended to deny Dr. Rawner’s application because Dr. Rawner did not meet the requirements of section 458.313(1), which requires an applicant to meet the qualifications outlined in either section 458.311(1)(b)-(g) (alternative one), or in section 458.311(1)(b)- (e), (g) and (3) (alternative two). The notice stated that with respect to alternative one, Dr. Rawner did not meet the requirements of section 458.311(1)(f)3., because he had not completed an approved residency or fellowship of at least two years in one specialty area. With respect to alternative two, the Board determined that Dr. Rawner did not meet the requirements of section 458.311(3)(c) because, in the Board’s view, the section was inapplicable to Dr. Rawner because he had completed all requirements of the foreign medical school, with none outstanding, and did not meet the requirement of (3)(d) because he had not 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. Dr. Rawner filed a Petition for Administrative Hearing with respect to the Notice of Intent to Deny, and the matter was reconsidered at the credentials committee’s meeting on October 3, 2013. The credentials committee voted to reconsider the application based on the issues presented in the Petition. On October 22, 2013, the Board issued an Amended Notice of Intent to Deny Licensure. With respect to alternative two, in the Amended Notice, the Board stated: [t]he application file reveals that Dr. Rawner fails to meet subsection (3) for the reasons set forth below. Subsection (3) provides: Notwithstanding the provisions of subparagraph (1)(f)3., a graduate of a foreign medical school need not present the certificate issued by the Educational Commission for Foreign Medical Graduates or pass the examination utilized by that commission if the graduate: Has received a bachelor’s degree from an accredited United States college or university. Has studied at a medical school which is recognized by the World Health Organization. Has completed all of the formal requirements of the foreign medical school, except the internship or social science requirements, and has passed part I of the National Board of Medical Examiners examination or the Educations Commission for Foreign Medical Graduates examination equivalent. 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. Subpart (3)(c) provides in relevant part all of the formal requirements of the foreign medical school, except the internship or social service requirements, and has passed certain examinations. A plain reading of this subpart is that the foreign medical school has an internship or social service requirement and that the internship or social service requirement has not been completed. The application file demonstrates that Dr. Rawner graduated in June, 2006, with a degree of Doctor of Medicine from the American University of the Caribbean School of Medicine. Thus, subpart (3)(c) is inapplicable to Dr. Rawner, because the application file reveals that he completed all of the formal requirements of the foreign medical school and there are no outstanding or pending internship or social service requirements. Based on the foregoing, the Board finds that the Applicant has not demonstrated that he meets the requirements for licensure by endorsement set forth in Section 458.313(1)(a), Florida Statutes. The Amended Notice no longer listed failure to complete an academic year of supervised clinical training as a basis for the denial of Dr. Rawner’s application. There is no persuasive evidence presented that Respondent’s interpretation of the requirements of section 458.311, Florida Statutes, as it applies to this case, is a statement of general applicability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order approving Leon Rawner, M.D.’s application for licensure by endorsement. DONE AND ENTERED this 28th day of April, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2014. COPIES FURNISHED: Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Amy W. Schrader, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302 Allison M. Dudley, Executive Director Board of Medicine Department of Health Division of Medical Quality Assurance Boards/Councils/Commissions 4052 Bald Cypress Way Tallahassee, Florida 32399 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
