Findings Of Fact The parties stipulated as follows: Raul Ivan Vila, Petitioner, applied to Respondent for licensure by endorsement after having graduated from a foreign medical school, passed the Federation Licensing Examination (FLEX) and having been certified by the Educational Commission for Foreign Medical Graduates (ECFMG). He was denied licensure on the grounds that the supervised clinical training he received in the United States was not obtained in wither a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association, or in a residency program approved by the Accreditation Council for Graduate Medical Education as required by Rule 21M-22.18, Florida Administrative Code, which took effect on November 28, 1984. Petitioner had completed his supervised clinical training in the United States and had received his medical degree prior to the effective date of this rule. Petitioner's application would also be denied under amended Rule 21M-22.18, Florida Administrative Code, which took effect on March 13, 1985, because the supervised clinical training he received in the United States was not obtained in either a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education, or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is obtained. The following findings are based upon the evidence received and matters officially recognized: The Board adopted Rule 21M-22.18, which took effect on November 28, 1984, and it provided: Foreign Medical Graduates: Qualification Re- quirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada, is admitted to take the writ- ten licensure examination or be licensed by endorsements [sic], he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training received in the United States as part of the curriculum of the foreign medi- cal school was obtained either in a hospital affiliated with a medical school approved by the Council on Medical Education of the Ameri- can Medical Association or in a residency pro- gram approved by the Accreditation Council for Graduate Medical Education. The Board subsequently amended Rule 21M-22.18, and the amendment took effect March 13, 1985, to provide: Foreign Medical Graduates: Qualification Requirements. Before any gra- duate of a medical school not accredited by the Liaison Committee on Medical Education, ex- cept a graduate of an accredited school in Canada, is admitted to take the written licen- sure examination or be licensed by endorsement, he or she must demonstrate (in addition to other requirements set forth in Chapter 458, F.S.) that the supervised clinical training re- ceived in the United States as part of the cur- riculum of the medical school was obtained either in a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is being obtained. This rule, as well as its amendment, were adopted to implement Sections 458.311 and 458.313(4), Florida Statutes. The Liaison Committee on Medical Education, which reviews and accredits medical schools in the United States, has adopted standards for the accreditation of medical education programs which were ratified by the Council on Medical Education of the American Medical Association on March 1, 1985, and the Executive Council of the Association of American Medical Colleges on April 4, 1985, and which state in part: The traditional required clinical subjects, which should be offered in the form of requir- ed experiences in patient care (customarily called clerkships), are internal medicine, ob- stetrics and gynecology, pediatrics, psychia- try and surgery. Additionally, many schools require a clerkship in family medicine. . . . Each required clinical clerkship must allow the student to undertake thorough study of a series of selected patients having the major and common types of disease problems represent- ed in the primary and related disciplines of the clerkship. . . . The required clerkships should be conducted in a teaching hospital or ambulatory care fa- cility where residents in accredited programs of graduate medical education, under faculty guidance, may participate in teaching the stu- dents. In an ambulatory care setting, if faculty supervision is present, resident par- ticipation may not be required. If required clerkships in a single discipline are conduct- ed in several hospitals, every effort must be made to ensure that the students receive equivalent educational experiences. No schools outside the United States are accredited by the Liaison Committee. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital, chairman of the clerkship committee at Shands, and an expert in medical education, clerkships are an essential part of a medical education because they are the first time the student is introduced to the real practice of medicine and contact with patients in a supervised setting. Clerkships occur in the third and fourth years of a medical education, after the student has had courses in the basic sciences, pathology, pharmacology and an introduction to clinical medicine. During a clerkship, the student participates as part of a team and does patient histories, physicals, participates in discussions about patient care, observes operations and attends lectures. Clerkships are usually taken in fields such as obstetrics and gynecology, pediatrics, internal medicine, surgery, community health, family medicine and psychiatry. The Liaison Committee reviews the clinical clerkship program as part of the accreditation process. Dr. Gibbs testified that written exams, such as FLEX or the National Board, are important in measureing a student's cognitive knowledge and determining minimum qualifications, but cannot measure clinical qualities of a doctor such as how he works with colleagues, and how he communicates. Clerkships are important in determining a student's performance level in these clinical qualities. Robert B. Katims, M.D., testified as a member of the Board and Chairman of the Foreign Medical Graduates Committee of the Board. As Committee Chairman he had noted problems with the clinical experience being received by graduates of certain foreign medical school that are not accredited by the Liaison Committee. All medical schools in the United States are accredited. Dr. Katims observed that problems with the clinical experience offered at these foreign medical schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students must arrange their own clinical experience in the United States. There have been repeated instances of little of or no supervision in these clinical experiences, which frequently consist of a one-on-one affiliation with a practicing physician with very little structured training. Under these circumstances, the foreign medical student does not receive the kind of supervised clinical training which is a vital part of a medical education.
The Issue The issue in this case is whether the Petitioner, Rene Delgado Leon, M.D., is eligible for examination for licensure to practice medicine in the state of Florida. The Petitioner, of course, contends that he is eligible. The Respondent, Board of Medical Examiners, contends that the Petitioner has failed to demonstrate eligibility, having previously advised him, inter alia: Your application and supporting documentation contained substantial omissions of material information relative to your medical education. Additionally, your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.301, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Dr. Rene Pedizo Delgado Leon, was born on November 26, 1936, in Cuba. All of his formal education prior to medical school was obtained in Cuba. He attended medical schools, off and on, at various times and places between 1955 and June of 1980. His medical education commenced in 1955 at the Medical School of the University of Havana and ended when he-was awarded his medical degree from the University of Dominica in June of 1980. The Petitioner's first language was Spanish and he is not completely fluent in the English language. When communicating in English he appears to have a tendency to interpret statements and questions in a very literal manner. The Petitioner does not appear to have intended to deceive the Board of Medical Examiners or to misrepresent information about his education and experience. Nevertheless, he has not been very clear about a number of details. Since receiving his degree from the University of Dominica in 1980, the Petitioner has completed a residency in pathology, has passed the FLEX exam in conjunction with his application for licensure in the state of Georgia, and has been licensed to practice medicine in the state of Georgia. There were several discrepancies between information given by the Petitioner to the Board of Medical Examiners and to the Hearing Officer concerning various aspects of his background, particularly concerning his medical education. With regard to his medical education, Petitioner listed on his first application that he attended medical school in Havana, Cuba, from April 1954 until December 1962. On his second application he stated that he attended medical school in Havana, Cuba, from September 1955 until September 1960. He testified before the Foreign Medical Graduate Committee that he attended medical school at the University of Havana from 1955 until 1962. At the final hearing he testified that he attended the University of Havana from 1955 until 1962. On his first application, in response to the direction that he list all universities or colleges where he attended classes and received training as a medical student, he stated only that he attended the University of Dominica from June of 1977 until June of 1980. He subsequently filed a form, received by the Board on October 26, 1983, stating that he had attended the University of Zaragoza, Zaragoza, Spain, and received training as a medical student from November of 1974 until April of 1975. On his second application, he stated that he had attended the University of Zaragoza as a medical student from November of 1974 until April of 1975. At the final hearing he testified that in 1973 while he was in Zaragoza he applied to revalidate old courses taken in Havana and that thereafter he took all examinations up to the third year. He stated that he took other courses in Zaragoza, but that he did not take the examinations for any of the medical courses taken in Zaragoza. He also testified that he was given credit for courses at Zaragoza even though he did not take the examinations. The next segment of his medical education was consistently testified to as having been had at the Universidad Central del Este in the Dominican Republic. He attended the Universidad Central del Este for only one semester, during which he took six or seven subjects. He testified that Universidad Central del Este did give him some credit for the third year of medical school; in spite of the fact that he did not take examinations in any of the third-year courses he took in Zaragoza. In January of 1979 he transferred to Universidad Nordestana and spent approximately one year there. Univeraidad Nordestana gave him two and one half to three years of credit. Although his initial application showed that he had attended the University of Dominica in the West Indies from June of 1977 until June of 1980, his subsequent written and oral testimony was that he was enrolled at the University of Dominica only from January of 1980 until June of 1980. He testified before the Foreign Medical Graduate Committee that at the time he transferred from Nordestana, he was basically finished with his medical education and he said he transferred to Dominica because they did not talk in English in Santo Domingo. He also testified that he transferred to Dominica so that he could get some exposure to how medicine was practiced in the United States. Petitioner testified that although he transferred to the University of Dominica and he received his degree from the University of Dominica six months after he transferred there, he did not pay any monies to the University of Dominica. His explanation of why he did not pay money to the University of Dominica is that he wrote things for them, like a pathology booklet. The application form which Petitioner completed requested that he specify all places of residence since beginning medical training. On his first application he showed that he resided in Dominica, West Indies, from January of 1980 until June of 1980. On his second application he listed as residences since initiation of medical training only the University of Miami, Jackson Memorial, VA Hospital, and the University of South Florida, Tampa. In August of 1983 he followed up the second application with a letter to Mrs. Faircloth which stated that his place of residence while attending medical school was the "students quarters and dormitories" at Portsmouth, University of Dominica, West Indies. However, at the hearing before the Foreign Medical Graduate Committee and at the final hearing, Petitioner admitted that he was, in fact, on the campus of the University of Dominica only one day, and that was on graduation day. In fact, when he testified before the Foreign Medical Graduate Committee, he was specifically asked, "When you left Nordestana, where did you go?" To that question he replied, "Oh, to Dominica." However, he later admitted that when he left Nordestana, he went to Miami and he did not go to Dominica until he went six months later in order to graduate. On both of his written applications, Petitioner was asked to list the degrees earned other than M.D. On neither application did he list a bachelor's degree. Yet, in testimony before the Committee and at the final hearing, he testified that he had earned the equivalent of a B.S. in chemistry at the University of Havana. He testified that the reason that he omitted it was that he thought the question referred to medical education. However; in response to the same question, he listed that he had obtained a Licensee in Science and a Doctor in Science from the University of Zaragoza. With regard to the matter of what clerkships, if any, Petitioner performed as part of his medical education, the record shows that he was enrolled at the University of Dominica, the school from which he received a medical degree, from January or February of 1980 until June of 1980. The record also shows that during that five- or six-month period he performed what purported to be clerkships at the VA Hospital and at Coral Gables Hospital, in Miami, and at the same time was an employee of the VA Hospital. He testified that his clerkship at the VA Hospital was in pathology and that he was employed full time in the same area as he was receiving clerkship credit. He arranged the clerkships himself and informed the university of the clerkships. He testified that he did the same activities as the other clerks did, but he worked approximately forty hours and they worked thirty to forty hours. He effected his transfer to the University of Dominica by writing to the New York office and by taking some "required" examinations in basic sciences and clinical studies. He took the examinations in Miami and passed everything but gynecology. He eventually passed gynecology, but not until May of 1980 after he had almost completed clerkships. He testified that when he did his "rotation" at the VA Hospital, he was told that he could "moonlight." He testified that he did all of the autopsies while the other medical students watched. He testified that he went in to work at about 7:00 a.m. and left around 4:00 p.m. and that the other residents did not arrive until about 8:00 a.m. However, he did testify that the clerks arrived at 6:00 a.m. Petitioner testified that he was doing a clerkship at the time, not a residency, and that it was the extra time that he put in that justified his being both paid and given credit for an educational experience. Dr. Robert M. Clark was Petitioner's supervisor during the period of approximately January of 1980 until June of 1980. Petitioner worked in the morgue as a Physician's Assistant and also did "resident physician work." Petitioner was paid at the same time as he was doing a rotation because there was a shortage of residents. Petitioner had the same exposure to pathology as the other residents, all of whom were from the University of Miami. None of the other students were paid employees. A Physician's Assistant requires two years of medical school. Dr. Clark was introduced to Petitioner by Dr. Kuhnhardt. Dr. Kuhnhardt was not connected in any way with the medical school at the University of Dominica. The only other purported clerkship about which there was testimony at the hearing related to a clerkship at Coral Gables Hospital. That clerkship was under Dr. Hurst. That clerkship was done from January of 1980 until June of 1980, the same period during which the clerkship at the VA Hospital was done. Petitioner testified that he went to Coral Gables Hospital after he left the VA Hospital, usually after 4:00 p.m., and stayed however long was necessary, possibly as late as 8:00 or midnight. Dr. Hurst only let the students observe medical procedures. That clerkship was conducted in a community hospital. As for the supervision by the school, the testimony was that the school played no role in arranging the clerkships. Petitioner testified that people from the school came for general meetings every once in a while during the clerkships. As for evaluation, Petitioner testified that the school sent evaluation forms to him and he distributed the forms to whoever was supervising him.
Recommendation Based upon all of the foregoing it is my recommendation, because of the contradictions and uncertainties on the record in this case regarding the nature of the Petitioner's medical education, that the Board of Medical Examiner issue a final order denying the Petitioner's application for licensure by examination without prejudice to the filing of any future application for licensure by examination or endorsement, unless; for reasons analogous to those set forth in the Lopez decision, supra, the Board is persuaded that the shortcomings in the application and its supporting evidence may be overlooked in light of the Petitioner's achievements since 1980. DONE AND ORDERED this 3rd day of January, 1986, at Tallahassee, Florida. MICHAEL M. 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 3rd day of January, 1986. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301 Jorge A. Sibila, Esquire 2751 Coral Way Miami, Florida 33145 Dorothy Faircloth; Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on Petitioner's proposed findings: The Petitioner's proposed findings of fact consist of a two- line introductory clause and six unnumbered indented paragraphs. The six unnumbered indented paragraphs are addressed below in the order in which they appear in the Petitioner's proposed findings of fact. First Paragraph: Rejected. This paragraph is merely a commentary on the state of the record and does not contain any proposed finding of fact. Second Paragraph: Rejected for the same reason as the first paragraph. Third Paragraph: Rejected in part and accepted in part. Rejected portions are rejected for the most part for the same reason as the rejection of the first two paragraphs. The "fully explained" portion of this paragraph is rejected as not supported by the greater weight of the evidence. Findings have been made consistent with the portions of this paragraph relating to when Petitioner's medical education began and ended, his completion of a residency in pathology, and his passing of the FLEX examination. Fourth Paragraph: The first sentence of this paragraph is rejected in part because it is merely a commentary on the state of the record and in part because it is inconsistent with the evidence of record. Dr. Clark did not explain the Petitioner's work in detail: to the contrary, his testimony was rather vague about a number of the details and he failed to recall a number of specific details. The last sentence of this paragraph is rejected because it is not supported by competent substantial evidence. Fifth Paragraph: Rejected for the same reason as the first paragraph. Sixth paragraph: The first sentence of this paragraph is rejected because the Petitioner's explanations were incomplete. With regard to the second sentence of this paragraph, it is accepted that the Petitioner is "not fluent/native in the English language or in legal terminology," and that the Petitioner did not intend to deceive the Board or misrepresent information to the Board. m e remainder of the second sentence is rejected on the grounds that it is in part irrelevant and immaterial as well as on the grounds that the ultimate factual conclusion urged in the second sentence is not warranted by the evidence in the record. Rulings on Respondent's proposed findings: The Respondent's proposed findings of fact consist of seventeen separately numbered paragraphs. The paragraph numbers which follow correspond to the numbers of the paragraphs of the Respondent's proposed findings. Accepted in substance with certain gratuitous editorial material deleted. Accepted in substance. Accepted in substance with the exception of the sentence reading: "In contradiction, he testified at the final hearing, on both direct and cross-examination, that he furthered his medical education in Spain in 1970." The quoted sentence is rejected because it does not accurately reflect the totality of the Petitioner's testimony on this subject. Some other redundant material in this paragraph is also rejected. Rejected on the grounds that it consists of irrelevant and cumulative details which are not necessary to the disposition of this case. Accepted in substance with certain gratuitous editorial material deleted. The first sentence of this paragraph is accepted. The second sentence is accepted with the exception of the words ". . . at which time he needed three years." The quoted language is rejected as not being supported by persuasive competent substantial evidence. Accepted. The first two sentences of this paragraph are accepted in substance. The last sentence is rejected as irrelevant in part, cumulative in part, and not supported by competent substantial evidence in part. Accepted in substance with certain gratuitous editorial material deleted. Accepted. Accepted in part and rejected in part. Reasons for rejection include the feet that although most of this paragraph is an accurate summary of portions of the Petitioner's testimony; some of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. The parenthetical mention of the pathology booklet is rejected because there is no competent substantial evidence as to when Petitioner wrote any pathology books Accepted in substance. Accepted in part and rejected in part. Reasons for rejection include the fact that although much of this paragraph is an accurate summary of portions of Dr. Clark's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Portions of this paragraph have also been rejected on the grounds that they constitute commentary on the quality of the testimony or argument and are not proposed findings of fact. Accepted in part and rejected in part. Reasons for rejection include the fact that although most of this paragraph is an accurate summery of portions of the Petitioner's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Accepted. Rejected as findings of fact because it constitutes argument rather than proposed findings of fact. [Much of the argument is well taken, but it is argument nevertheless and not appropriately part of the findings of fact.] Rejected for the same reason as Paragraph 16.
The Issue The primary issue in this case is whether Petitioner is qualified for reinstatement of his license to practice medicine in the State of Florida. There are two principal areas of concern: Petitioner's conviction of illegally dispensing a controlled substance in Dougherty County, Georgia, on March 19, 1982; and Whether Petitioner has obtained the 36 hours of Class I Continuing Medical Education (CME) credit required (12 hours for each year his license was inactive since 1979).
Findings Of Fact The Petitioner, Fred Louis Vidal, M.D., obtained licensure in Florida in 1949, holding License #4369. In 1966, Petitioner's license was suspended for nonpayment of fees. Section 458.321, Florida Statutes (1979), requires the Board of Medical Examiners to adopt a rule setting forth the type and required number of hours of Continuing Medical Education (CME) needed to reactivate a license. The Board's rule concerning this is Rule 21M-28.01, Florida Administrative Code, which requires 12 hours per year for each year the license is inactive. Therefore, Petitioner must show evidence of 36 hours of Class I, American Medical Association CME. Petitioner's request for reinstatement was denied by Order of the Board rendered March 9, 1982. The Board's Order contained a typographical error which was corrected by its Amended Order rendered on March 22, 1982. Petitioner offered no evidence at the hearing or before the record was closed on June 7, 1982, proving his attendance at any Class I, AMA approved CME courses. Petitioner testified that on March 19, 1982, he was convicted for illegally dispensing a controlled substance in Dougherty County, Georgia. The sentence ordered by the court in this case placed Petitioner on probation for five years and provided that he not practice medicine in the State of Georgia during that period of probation. Regarding his conviction, Petitioner was convicted of prescribing Percodan to a nurse who worked for the group of physicians employing the Petitioner. He prescribed Percodan for this nurse because she was suffering from severe headaches associated with tension. Petitioner stopped prescribing for the woman when he ceased to work for the group. Petitioner had warned the woman about depending upon the drug, but while working with her he saw no evidence that she was abusing it. At the time he left the group he ceased to write prescriptions for this woman.
Recommendation Having failed to show that he has the required number of Continuing Medical Education units, it is determined that the Petitioner, Fred Louis Vidal, M.D., is not qualified at this time for reinstatement of his license, and it is recommended that his application be denied. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of July, 1982. COPIES FURNISHED: Fred Louis Vidal, M. D. 20 Wayah Street Franklin, North Carolina 28734 Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301 Dorothy Faircloth, Executive Samuel Shorstein, Secretary Director Department of Professional Board of Medical Examiners Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Immaculate Espejo Asuncion, of St. Paul, Minnesota, filed an application with Respondent, Board of Medical Examiners, on September 21, 1982, for licensure by endorsement to practice medicine. (Testimony of Petitioner, Joint Exhibit No. 1) On March 7, 1983, Respondent issued a Notice of Intent to Deny Endorsement Licensure on the grounds that Petitioner had not obtained a 75 percent FLEX weighted average on the licensure examination of the Federation of State Medical Boards of the United States, Inc., as required by Rule 21M- 29.01(2), Florida Administrative Code, and was not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement, as required by Section 458.313(1)(d), Florida Statutes. Petitioner thereafter requested a hearing on the proposed denial of her application. (Testimony of Faircloth, Joint Exhibit No. 1) Petitioner was licensed to practice medicine in the state of Minnesota in 1978. She obtained such licensure by satisfactorily passing the clinical science and clinical competence portions of the FLEX examination, and by successfully completing a basic sciences examination administered by the Minnesota State Board of Examiners. (Testimony of Petitioner, Joint Exhibit No. 1) Petitioner is a graduate of a foreign medical school and is therefore not eligible to take the examination of the National Board of Medical Examiners. The alternate method of obtaining licensure by endorsement is by certification through licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). This examination has three parts and is taken over a period of three days. The three parts of the examination are basic science, clinical science, and clinical competence. The scores on the three parts are averaged under a formula to produce a weighted average score. Respondent's Rule 21M-29.01(2), Florida Administrative Code, requires that an applicant have a FLEX weighted average of 75 percent from one complete sitting on the examination. Petitioner took only the clinical science and clinical competence portions of the examination and therefore did not obtain a certified FLEX weighted average score. The Minnesota basic sciences examination taken by Petitioner was not the same basic sciences examination administered as part of the FLEX examination. (Testimony of Faircloth, Joint Exhibit No. 1)
Recommendation That Respondent enter a Final Order denying Petitioner's application for licensure by endorsement. DONE and ENTERED this 16th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 16th day of June, 1983. COPIES FURNISHED: Immaculate Espejo-Asuncion, M.D. Dorothy J. Faircloth 80 Battle Creek Place Executive Director St. Paul, Minnesota 55119 Board of Medical Examiners 130 North Monroe Street John Griffin, Esquire Tallahassee, Florida 32301 Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent, Diane Velez, violated section 1012.795(1)(g) and (j), Florida Statutes (2017), and Florida Administrative Code Rule 6A-10.081(2)(a)1., and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor of the witnesses, the testimony given, and the documentary evidence received, the following Findings of Fact are made. Respondent holds Florida Educator’s Certificate 789520, covering the areas of Elementary Education, English for Speakers of Other Languages, (ESOL), and Exceptional Student Education (ESE), which is valid through June 30, 2020. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an ESE teacher at Stillwell Middle School (Stillwell) in the Duval County School District. She has been teaching for approximately 20 years, with no prior discipline. Respondent teaches in a wing at Stillwell that is referred to as the SLA Unit, which stands for Supported Level Academics. The students in the SLA Unit are cognitively delayed and have all of their classes in this self- contained unit. The SLA Unit is located in a wing at the back of the school, near the bus loop. If someone is looking down the hall from the doors closest to the rest of the school, there are female and male bathrooms for students to the left and right, respectively, closest to those doors. From those bathrooms, there are five classrooms on each side of the hall. Ms. Velez’s classroom is the third classroom on the right-hand side of the hallway. There are additional restrooms in the wing, all congregated in the area between the third and fourth classrooms on the left hand side of the hallway. At least one of those bathrooms is entered from within a classroom. Stillwell had a policy that if a student was given permission to leave the classroom, the student should not be gone for more than eight to ten minutes without the teacher calling for assistance to locate the student. Teachers could call for assistance from Ronald Messick, the lead ESE teacher; send a paraprofessional to look for the student; or call the front office or a resource officer. The eight-to-ten minute window was not a written policy, but was discussed during pre-planning meetings at the beginning of the year, as well as at faculty meetings. While attendance logs from pre-planning and faculty meetings were not introduced to establish that Respondent was present during faculty meetings or pre-planning meetings, no evidence was presented to indicate that she was absent. In addition, the 2017-2018 Faculty Handbook (Handbook) for Stillwell had more than one section that addressed supervision of students. For example, under the caption “Supervision of Students,” beginning on page 12 of the Handbook, it states:1 It is the responsibility of the school to provide supervision for students in attendance. It is the teacher’s responsibility to make sure that students in his/her charge are supervised at all times. Teachers should be aware of the legal and progressive discipline aspects of failure to provide adequate supervision. Students should always have adult supervision. Under the caption “Hall Passes,” on page 16 of the Handbook, it states: Hall passes are to be used for emergencies only. In an effort to reduce the number of students out of class during instructional time, each classroom will have either a lime/orange vest or a Colored clipboard. Students needing to leave the classroom are required to wear the vest or carry the clipboard. Please make sure students continue to sign-out when leaving/returning to your classroom so if the vest/clipboard disappears, you will know who was in possession of it last. Only one student per class may be on a hall pass at any given time. If it is necessary that a student leave your classroom to go to an Administrative Office and your vest/clipboard is already being used, security will need to escort student(s) to and from the classroom. While it is our desire that no student be in the halls during instructional time, there are absolutely NO hall passes for any reason during the first/last 30 minutes of each class and NO hall passes during 2nd block each day unless called by an Administrator. Students who are found out of class during the first/last 30 minutes of the block will have the vest or clipboard taken and given to the Assistant Principal for you to retrieve. Students who are out of class, unaccompanied by security, and do not have a vest/clipboard will be 1 All italics, underlining, and bold used in the quoted material is as it appears in the Handbook. considered skipping and appropriate consequences will be assigned. The teacher will also be held accountable if not following school procedure. Finally, under the heading “Hall and Campus Monitoring,” it states in all capitals and bold letters, “STUDENTS SHOULD NEVER WALK BY THEMSELVES.” On or about January 11, 2018, J.L. was an 11-year-old female student in the sixth grade. J.L. was assigned to Respondent’s classroom, and has an Individual Education Plan (IEP). J.L. was a student in a class containing students who functioned cognitively at the lowest level for students at Stillwell. While those who testified could not state definitively what the IQ level was for the class, it was generally around 67-70. Ms. Velez described the class as one for which there was “a need to have eyes on them.” J.L. was new to the school during the 2017-2018 school year. On August 22, 2017, Ronald Messick sent an email to J.L.’s teachers, including Respondent, stating that J.L. could not be left alone and that she would “leave with a complete stranger.” He advised that when J.L. uses the restroom, she likes to play in it, and directed that the teacher who has J.L. the last period of the day needed to make sure she used the restroom. J.L.’s mother had called Mr. Messick the first week of school with concerns that J.L. had been unsupervised in the bus pick-up area. Her mother explained her concerns to Mr. Messick regarding J.L.’s need for constant supervision. The email referenced making sure that J.L. went to the bathroom before boarding the bus simply because she would have a long ride home from school. An IEP meeting was conducted for J.L. on October 12, 2017. Mr. Messick was present as the LEA (lead educational agency) representative, along with Ms. Velez, who wrote the IEP, and three others. J.L.’s IEP states that “[s]he has Williams Syndrome which is a developmental disorder that affects many parts of her body.” The IEP also states that J.L. “is a very trusting child and will walk away with a stranger. She does not distinguish friend from stranger and this causes danger to her safety,” and that J.L. “needs increased supervision to ensure her safety.” The statement that J.L. needs increased supervision to insure her safety is included in two separate sections of her IEP. Respondent was J.L.’s case manager. As her case manager, Respondent reviews, completes entries, and inputs other appropriate data in J.L.’s IEP. She was aware of the information contained in J.L.’s IEP. On January 11, 2018, J.L. was present in Ms. Velez’s classroom during the last period of the day. At approximately 2:05, she asked for, and received, permission to go to the bathroom. Ms. Velez allowed J.L. to go by herself. No adult or other student accompanied her. Allowing J.L. to go the restroom alone was not permitted by her IEP. Further, it appears to violate the policies outlined in the Handbook, which prohibits allowing hall passes for the first 30 minutes of each class. The final class of the day began at 2:05.2 It also runs afoul of the email sent by Mr. Messick at the beginning of the school year, which specifically directed that J.L. not be left alone. After J.L. was permitted to leave the classroom, T.B., a male student in Respondent’s class, also asked to go the bathroom, and was allowed to leave the classroom. Ms. Velez did not check to see where J.L. was before letting T.B. leave the classroom. T.B. was also unaccompanied. J.L. was absent from the classroom for approximately 24 minutes. There are no credible circumstances presented at hearing by which a student should be absent from the classroom for that length of time, regardless of 2 The Administrative Complaint does not charge Respondent with violating this policy, and no discipline is recommended for apparently doing so. It is included simply to show that there were multiple guidelines in place to prohibit allowing J.L. outside of the classroom alone. their mental capacity, the policy contained in the Handbook, or any policy discussed at faculty meetings. T.B. returned to the classroom before J.L. After he entered Ms. Velez’s classroom, T.B. apparently told Ms. Velez that J.L. was in the boys’ bathroom. Ms. Velez testified that she was about to look for her when J.L. returned to the classroom. Ms. Velez testified that she noticed J.L. had “a lot of energy,” and was breathing hard and her hands were shaking. Ms. Velez asked J.L. if she had been in the boys’ bathroom, and testified at hearing that J.L. responded that she did not want to get in trouble. J.L. became upset and asked to speak with the school nurse. Ms. Velez allowed her to go to the nurse’s office, this time accompanied by an eighth grade girl. While Ms. Velez described the child who accompanied J.L. as “very responsible,” it is noted that she was also a child in this classroom of children who represented the lowest functioning students at Stillwell. Lana Austin was the school nurse at Stillwell, and her office was down the hall from Ms. Velez’s room in the SLA wing. She testified T.B. was in her office when J.L. arrived. It was not explained at hearing whether T.B. had also asked Ms. Velez to go to the nurse’s office or just how he came to be there. When she arrived at the nurse’s office, J.L. was crying and somewhat distraught, and T.B. was also getting upset. Ms. Austin tried to get J.L. to tell her what was wrong, and J.L. kept saying they were trying to get her in trouble. J.L. wanted to call her mother, and Ms. Austin let her do so, because she believed it would calm her down. A paraprofessional came into Ms. Austin’s office while J.L. was on the phone with her mother. So while the paraprofessional was in the office with the students, Ms. Austin contacted Ms. Raulerson, the principal at Stillwell, and notified her there might be a problem so that someone could look at the hallway video and find out if anything happened. Ms. Austin knew that J.L. was a student who needed to be escorted. She was always brought to the nurse’s office by an adult. On this occasion, there was no adult. Jennifer Raulerson was the principal at Stillwell during the 2017-2018 school year. She is now the executive director for middle schools in Duval County. Ms. Raulerson testified that J.L.’s father came to the school immediately after J.L.’s telephone call home, and started asking questions. Because of the nature of his questions, consistent with school protocols, Ms. Raulerson contacted Stillwell’s school resource officer (SRO), Officer Tuten, as well as Mr. Messick and Ms. Hodges, who was the dean of students, to discuss with J.L.’s father what needed to be done to investigate what actually happened.3 The following morning, Ms. Raulerson, Ms. Hodges, and Mr. Messick spoke to J.L., T.B., and M.N., another student in the hallway, about what happened the day before. Based on their answers, Ms. Raulerson gave Ms. Hodges a basic timeframe, and asked her to check the cameras to see if she saw anything that would indicate that something happened involving J.L. and T.B. Ms. Hodges testified that a person can type in a date and time on the computer and look at a specific timeframe on the video, which is what she did. Once she viewed the video and realized how long a student had been out of the classroom, she went to Ms. Raulerson and they looked at the video again. Mr. Messick also watched the video with them. Administrators at the school could access the surveillance video on their computers. The surveillance video software has dates and times from which you can retrieve a time period to watch. However, when you download 3 Although they were under subpoena, neither J.L. nor J.L.’s father appeared to testify at hearing. Any statements attributed to them cannot support a finding of fact for the truth of the matter asserted. § 120.57(1)(c), Fla. Stat. Statements by J.L. that are included in this Recommended Order are not intended to establish the truth of her statements, but rather, to explain why teachers and administrators took the actions they did in response to the situation. a section of the surveillance video, the downloaded portion does not include the timestamp. When Ms. Raulerson viewed the surveillance video on the computer screen, she could see the time stamp. While the video in evidence as Petitioner’s Exhibit 17E does not contain the time stamp, Ms. Raulerson credibly testified that it is the same video she and the others viewed to determine whether J.L. and T.B. were out of the classroom and how long they were out of the classroom. Petitioner’s Exhibit 17E is a type of evidence commonly relied upon by reasonably prudent persons in the conduct of their responsibilities as a school administrator. There is no evidence that the tape itself has been altered, edited, or tampered with in any way. The lack of a time stamp is not all that important. What is important is not so much the time of day when J.L. and T.B. were absent from Respondent’s classroom, but the length of time that they were absent.4 Ms. Velez admits that she allowed both students to leave her classroom on January 11. She simply disputes how long J.L. was gone. The surveillance video is 39 minutes and 53 seconds long. The times given in the summary of the video activity below are based on the times recorded on the video, as opposed to the time of day. A comparison of those timeframes with the timeline made by Ms. Austin and Mr. Messick shows that the timelines are essentially the same. The video shows the following: 4 Respondent claims she is prejudiced by the admission of the video, because she was not able to view it with the time-stamps to verify that it was, in fact, the video for January 11, 2018. It is noted that Respondent initiated no discovery in this case. Petitioner filed an exhibit list that included a reference to a video as early as July 24, 2020, some three weeks before hearing. Moreover, the Order of Pre-Hearing Instructions specifically requires not only a list of all exhibits to be offered at hearing, but also any objections to those exhibits and the grounds for each objection. Respondent did not note any objection in the Second Amended Joint Pre-Hearing Statement to the admission of any of the videos admitted as Petitioner’s Exhibit 17. At eight minutes, 17 seconds, J.L. leaves Ms. Velez’s classroom and heads down toward the girls’ bathroom at the end of the hall.5 She is wearing an over-sized jacket, but is not wearing a vest or carrying a clipboard. At nine minutes, 15 seconds, she comes out of the girls’ bathroom and speaks to an adult in the hallway, and then heads back to the bathroom. At the 13-minute, 4-second mark, T.B. walks down the hall from Ms. Velez’s classroom and, curiously, walks over toward the girls’ bathroom before going over to the boys’ bathroom. At 14 minutes, 39 seconds, T.B. comes out of the boys’ bathroom and walks over toward the girls’ bathroom a second time. After approximately ten seconds, he exits the area near the girls’ bathroom and heads back to the boys’ bathroom. At approximately 15 minutes into the video, and almost seven minutes after leaving Ms. Velez’s classroom, J.L. comes out of the girls’ bathroom, peers down the hallway in both directions, and goes over to the boys’ bathroom. At this point, she is still wearing her jacket. At approximately 18 minutes, 16 seconds into the video, a second male student, later identified as M.N., walks down the hall. M.N. is not in Ms. Velez’s class during this class period. He also goes toward the girls’ bathroom first, and then stands in the hallway outside the boys’ bathroom. After approximately 30 seconds, he walks down the hall and back, before going toward the boys’ bathroom and out of sight at 19 minutes and 40 seconds. At 20 minutes, 16 seconds into the video, other students start lining up in the hallway. Approximately four classes line up in the hallway, with no one coming out of the boys’ bathroom. At approximately 29 minutes, 5 Respondent established at hearing that one cannot actually see students enter and exit the bathrooms from the surveillance video. The sight line for the video stops just short of the doors to the two bathrooms. However, the only other alternative to going in the bathrooms would be for students to exit the SLA unit through the doors near the bathrooms. If that were the case, J.L. would be subject to harm as well, given that the doors lead to the rest of the school and the bus loading zone. 26 seconds, girls in line outside the bathroom are seen looking toward the boys’ bathroom and appear to be laughing. J.L. comes out of the boys’ bathroom at the 29-minute, 53-second mark, followed by T.B. J.L. is not wearing her jacket, and her belt is undone. T.B. throws J.L.’s jacket on the floor and walks down the hallway with his hands up in the air. Both J.L. and T.B. walk down the hall toward Ms. Velez’s room, and then turn around and return to their respective bathrooms. At the 31-minute, 53-second mark, J.L. comes out of the bathroom with her shirt tucked in and her belt fastened. She is still not wearing her jacket, a small portion of which can be seen on the floor of the hallway. She does not pick it up, but stays in the hallway until T.B. comes out of the bathroom, then both go down the hall toward Ms. Velez’s class, with T.B. running and J.L. walking. J.L. re-enters Ms. Velez’s classroom at 32 minutes, 21 seconds into the video. Finally, at 32 minutes, 30 seconds, M.N. comes out of the boys’ room, picks up J.L.’s jacket and heads down the hall. Based on the surveillance video, J.L.was out of the classroom for slightly over 24 minutes. T.B. was absent from the classroom for over 18 minutes. Ms. Velez is never seen in the hallway. There is no admissible evidence to demonstrate what actually occurred during the time that J.L. appeared to be in the boys’ restroom. Regardless of what actually happened, no female student should be in the boys’ bathroom, and a female student already identified as needing increased supervision should not be allowed to be unsupervised outside of her classroom at all, much less for such a lengthy period of time. The potential for harm was more than foreseeable, it was inevitable. Ms. Velez did not go in the hallway or send Ms. Kirkland, the paraprofessional present in her classroom that day, to check on J.L. or T.B. She did not call the SRO, the front office, or Mr. Messick to ask for assistance in locating either child. She also did not contact Ms. Raulerson, Mr. Messick, or J.L.’s parents after T.B. told her that J.L. had been in the boys’ restroom. She testified that, while J.L. certainly should not be in the boys’ restroom, there was nothing that led her to believe or suspect that there could be neglect or abuse. Ms. Velez acknowledged that she allowed J.L. to go to the bathroom unsupervised, and stated that she was training J.L. to go to the bathroom by herself. If that was the case, doing so was directly contrary to Mr. Messick’s email of August 22, 2017, and to the requirements of J.L.’s IEP. Ms. Velez had approximately 18 students in her classroom. Her focus, according to her, was on providing instruction to the students in her class. She denied losing track of time, but stated that once the students were engaged, she took her time with the lesson, which “led me to not noticing what time it was as normally as I should,” and she “possibly got distracted.” She did not take any responsibility for her actions. Instead, she blamed the situation on the fact that, at the time of the incident, she did not have a full- time paraprofessional assigned to her classroom. While the paraprofessional position for her class was not filled at the time of this incident, Ms. Kirkland traveled with the class and was present in Ms. Velez’s class when J.L. was allowed to leave the classroom. Ms. Velez also appeared to minimize the importance of providing increased supervision for J.L., and claimed that she was training her to go to the bathroom by herself. Yet, she described the class as a whole as one that needed “eyes on them” at all times. Further, J.L.’s parents clearly felt the increased supervision was crucial, and called early in the school year to make sure that staff knew J.L. was not to be left alone. Ms. Velez gave no explanation as to why she would “train” J.L. to leave the room unsupervised (and one wonders what training could be taking place, if the child is allowed to go alone outside the classroom), when she knew that to do so was clearly contrary to J.L.’s parents’ wishes. On January 22, 2018, the Duval County School District (the District) began an investigation into the incident concerning J.L. that occurred on January 11, 2018. During the District investigation, Ms. Raulerson notified the Department of Children and Families (DCF) and law enforcement of the incident. Both entities conducted investigations. The results of those investigations are not part of this record. On March 16, 2018, the District reprimanded Respondent and suspended her for 30 days for failing to provide adequate supervision of her students. The School Board’s approval of the suspension and the basis for it was reported in the press.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1. It is further recommended that Respondent pay a fine of $750, and that her certificate be suspended for a period of one year, followed by two years of probation, with terms and conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 29th day of October, 2020, 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 29th day of October, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephanie Marisa Schaap, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent is and at all times has been a licensed physician, holding Florida license number ME 0029977. He has been licensed in Florida since about 1976. G.L. is 73 years old. He has a third grade education. Previously, he was a farmworker in the fields. He is at most barely literate. In any event, he would not appreciate the meaning of a document of the type described below. G.L. and his companion, A.M., who is 59 years old and unemployed, had been patients of Respondent for about eight years at the time of the subject incident. From time to time, Respondent has lent his patients money, such as for transportation or medicine. Respondent's daughter, who serves as his office manager, has even provided transportation for patients in order to get them to the office and back home. On certain occasions, Respondent has lent G.L. money or paid for his medicine, although the amounts involved were not significant. On many other occasions, Respondent provided G.L. with free medication by giving him samples. Respondent did not keep track of the amounts involved because of the unlikelihood of any repayment. Between 1980 and the time of the incident, G.L.'s total charges for medical services rendered by Respondent were less than $5000. Medicare or Medicaid paid for about 80% of these costs. In May, 1986, G.L. suffered injuries as a result of an automobile accident. Respondent treated G.L., who had a balance due of about $824 at the time in question. Respondent referred G.L. to Franklin Douglas McKnight, who also served as Respondent's attorney, for representation in the recovery of damages for personal injuries. By January, 1987, Mr. McKnight was close to settling the case. At this point, Respondent visited Mr. McKnight and said that G.L. had agreed to pay Respondent a percentage of the settlement. The net amount that was estimated to be due G.L. was roughly $25,000, and Respondent was claiming $12,500. Mr. McKnight informed Respondent that he could not pay him a percentage and, in any event, could not pay him anything unless G.L. signed a letter authorizing the disbursement to Respondent. Mr. McKnight showed Respondent a simple example of such a letter. Respondent then prepared a letter for G.L. to sign. The letter stated: To Whom It May Concern: For past services, medical, social and humane assistance and personal loans rendered to me [G.L.] and my family during last many years. We hereby agree that the sum of $12,500 ... may be deducted from the net proceeds recovered as a result of the automobile accident, of date 5-30-86. I, [G.L.] Hereby thus authorize you, Mr. Douglas McKnight, (My representing Lawer) to disburse above amount out of net proceeds to Dr. Prem N. Tandon, M.D. without reservations. Thanking you: [Signed by G.L. and A.M. as witness.] During an office visit, Respondent presented the letter to G.L. and A.M. for their signature. Little if any meaningful explanation accompanied the signing. G.L. and A.M. signed the letter based on their trust of Respondent as their physician. When Respondent delivered the signed letter to Mr. McKnight, he told Respondent that he would not disburse any sums to Respondent without the consent of G.L. at the time of disbursement. G.L. later refused to honor the disbursement letter. Confronted with conflicting claims to nearly $12,000 of the settlement proceeds, Mr. McKnight interpleaded the sum in Orange County Circuit Court. Respondent has been disciplined twice previously. In a Final order dated February 27, 1984, Petitioner found Respondent guilty of violating Section 458.331(1)(r), Florida Statutes, by unlawfully prescribing to himself two legend drugs, Nembutal and Ritalin. Petitioner imposed an administrative fine of $200 and placed Respondent on probation for one month. In a Final Order dated June 15, 1988, Petitioner found, Respondent guilty of various statutory violations concerning generally recordkeeping requirements with respect to controlled substances. Petitioner imposed an administrative fine of $1500, reprimanded his license, required him to attend 60 hours of Category I Continuing Medical Education courses in legal aspects of dispensing controlled substances, and restricted his license by prohibiting him from dispensing drugs in an office setting and maintaining drugs for the purpose of dispensing until he complied with certain conditions concerning recordkeeping requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating of Section 458.331(1)(n), Florida Statutes, suspending Respondent's license for six months, and imposing an administrative fine of $5000. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1989. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-3 Adopted. 4 Adopted in substance. 5-7 Adopted. Adopted except as to the mischaracterization of the document as a promissory note. Rejected as irrelevant, contrary to the greater weight of the evidence, and recitation of testimony. Whether G.L. was able to read is beside the point. He was incapable of understanding the meaning of the document that he signed. Rejected as against the greater weight of the evidence. Rejected as cumulative and, to the extent not cumulative, irrelevant. 12-15 Rejected as recitation of testimony and subordinate. 16-17 Adopted in substance. 18 Rejected as recitation of evidence and legal argument. 19-21 Rejected as recitation of testimony and subordinate except that the first sentence of Paragraph 21 is adopted. Rejected as irrelevant. Rejected as recitation of testimony. Rejected as against the greater weight of the evidence. Adopted. Rejected as cumulative and, to the extent not cumulative, irrelevant. Rejected as legal argument contrary to the cited statutory definition of the practice of medicine. Rejected as recitation of testimony. Adopted in substance. Treatment Accorded Respondent's proposed Findings 1-4 Adopted. 5-6 Rejected as subordinate. Adopted. Rejected as irrelevant and, to the extent implying that G.L. understood the meaning of the document that he was signing, against the greater weight of the evidence. 9-10 Rejected as irrelevant. See Paragraph 9 in preceding section. 11-14 Adopted. 15 Adopted in substance. 16-19 Adopted in substance except that the first sentence of Paragraph 16 is rejected as against the greater weight of the evidence. Rejected as irrelevant. First sentence adopted. Second sentence rejected as irrelevant. Adopted. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 David G. Pius, Esq. Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph M. Taraska, Esq. Launa K. Cartwright, Esq. Taraska, Grower, Unger and Ketcham, P.A. Post Office Box 538065 Orlando, FL 32853-0065 =================================================================
Findings Of Fact Petitioner, the Board of Medicine, is the state agency charged with regulating the practice of medicine and respiratory care. Respondent is, and has been at times material hereto, a licensed respiratory care practitioner in Florida, having been issued license number TT 0002632. As a condition of renewal of her certificate/ registration to practice respiratory care, Petitioner requires licensed registrants, as Respondent, to periodically demonstrate their professional competency by completing at least twenty-four (24) hours of continuing education every two (2) years, of which at least three (3) hours shall concern Human Immune Deficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS). The criteria for and content of the continuing education courses are required to be approved by the Board prior to a registrant obtaining credit for such courses. To be accepted, Petitioner requires the registrant to demonstrate, inter alia, that the course was either presented by a live faculty or it was approved by the Board's Advisory Council. As part of her effort to renew her certificate, on or about December 16, 1988, Respondent signed the following statement which was thereafter submitted as part of her renewal request to practice respiratory care: I hereby affirm that I have earned the CONTINUING EDUCATION UNIT hours required by the DEPARTMENT OF PROFESSIONAL REGULATION to renew my license. I understand within the next two years I maybe required to submit a listing of my courses along with proof of completion if my license number is selected for audit. I also understand that it is my responsibility to maintain for a review by the DEPARTMENT, all CONTINUING EDUCATION DOCUMENTATION referenced herein. I affirm that these statements are true and correct and recognize that providing false information may result in a fine, suspension, or revocation of my license as provided in F.S. 455.2275, F.S. 775.082, or F.S. 775.084. The above statement was required to be completed by Respondent as part of her renewal process for the licensing period from January 1, 1987 through December 31, 1988. Petitioner relied on Respondent's affirmation that she completed the required courses when her renewal application was considered. Without executing that statement, Respondent could not have renewed her license to practice respiratory care in Florida. Respondent successfully renewed her license application to practice respiratory care in Florida, which renewal was, in part, based on Respondent's execution of the above-referenced statement regarding completion of the required continuing education credits. Subsequently, Respondent was the subject of a random audit by Petitioner to verify her continuing education credits for the period in question. On or about June 26, 1990, Respondent submitted verification for twenty-four (24) hours of continuing education. However, four (4) of the courses submitted by Respondent were self-study courses given by videotape, were not approved by the Board, and did not qualify for the required continuing education. The courses that Respondent took through the Department of Health and Rehabilitative Services in Gainesville did not have a provider number from either the AMA, AARC, RJRCTE, nor any other approval body or accredited association. The Advisory Council for Respiratory Therapy never indicated or agreed to accept or use HRS hours for continued education units from Respondent which were not approved. Eight (8) of the hours submitted by Respondent for satisfaction of the continuing educational requirement, in addition to the HRS hours, do not have an appropriate certified provider number. Respondent did not maintain or provide to Petitioner the required documentation for the Board's random audit to verify that she successfully completed the continuing education requirements for the biennium in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: (1) Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00) payable to the Board of Medicine within thirty (30) days of entry of its Final Order, (2) Petitioner impose a requirement in such Final Order that Respondent demonstrate compliance with two (2) future bienniums with additional continuing education requirements in each biennium, and (3) Petitioner issue a written reprimand to Respondent. 1/ DONE and ENTERED this 17th day of September, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 17th day of September, 1991.
Findings Of Fact The Petitioner made application to the Board and its physician assistant committee for certification as a physician assistant, pursuant to Section 458.347(7)(b), Florida Statutes. After three appearances before the committee, the committee recommended and the Board voted to deny his application by order of February 9, 1993. That order indicated that the Petitioner had failed to demonstrate to the committee's satisfaction that he had received a medical education, as the term is defined and employed in Chapter 458, Florida Statutes (specific citations omitted). The Petitioner timely sought a formal proceeding to contest that denial, which resulted in the matter being referred to the Division of Administrative Hearings and the undersigned Hearing Officer for conduct of that proceeding. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering the provisions of Chapter 458, Florida Statutes, and related rules involved in regulating entry and licensing of persons entering the physician assistant professional field. Among other duties, the Respondent agency is charged with ascertaining whether an applicant for certification has completed an appropriate medical education so as to be entitled under the relevant statutes for admission to the certification examination. Such a determination was made in this case, which resulted in the denial of the application and this formal proceeding. In addition to finding in its order of February 9, 1993 that, in effect, the medical education of the Petitioner was deficient under the relevant statutes, the Board also determined that there were discrepancies in the applications on file with the Board and in the supporting documentation and testimony before the Physician Assistant Committee (Committee). The Board also determined that due to the extended length of time since the Petitioner last worked in the field of clinical medicine and because of the length of time since any significant medical education or training had taken place, the Petitioner had not established that he was currently able to practice as a physician assistant with reasonable skill and safety to the public, as envisioned by Sections 458.331(4) and 458.301, Florida Statutes (1991). Prior to the hearing, the Hearing Officer granted a motion to amend the denial order to add as a basis for denial the Petitioner's alleged ineligibility to sit for the examination for certification because of failure to pay the required fee. See Section 458.347(7)(b), Florida Statutes. A passing score on the certification examination is a prerequisite to being certified as a physician assistant. There are certain discrepancies between the applications that the Petitioner filed with the Board, as well as with regard to documentation submitted to the Committee and to the Board. The Petitioner filed three applications with the Board. On each, he, in essence, swore that he had carefully read the questions on the application, had answered them completely without reservation, and that all statements were true and correct. On all of the applications, the questions required the applicant Petitioner to be specific as to the medical schools attended, to account for each year, and to list all universities and colleges attended where medical training was received. On the first application, the Petitioner stated, in response to the question to list all universities or colleges attended or where medical training was received, that he attended Universidad Central De Este (UCE) from November 1977 to August 1980, and that he attended CETEC University from August 1980 to June 1982. When he appeared before the Committee, he acknowledged also attending classes or receiving training at Ross University (formerly known as the University of Dominica). After that appearance before the Committee, he filed a second application and in response to the same question concerning his medical education, he responded that he had attended UCE from November 29, 1977 to August 24, 1980; that he attended the University of Dominica (Ross) from August 24, 1980 to August 7, 1981; and that he attended CETEC University from August 24, 1980 to June 12, 1982. Thus, he claimed that his attendance at Ross and CETEC actually overlapped. Documentation submitted, contained in Petitioner's exhibit 17 and in the Respondent's composite exhibit, reveals that he was not accepted as a student at CETEC until August 7, 1981, however. Subsequently, he filed a third application. On this application, he, in response to that same question, as pertinent to this issue, listed attendance at UCE from November 29, 1977 to August 24, 1980; at University of Dominica from August 24, 1980 to August 6, 1981; at CETEC from August 7, 1981 to June 12, 1982; at CJ Institute from April 26, 1982 to June 8, 1982; at Adelphi University from April 4, 1981 to June 12, 1981; and CETEC (graduation) on June 12, 1982. The Petitioner, at the hearing, admitted that he had not completed an application listing Ross University until after the Committee already knew he had attended Ross. When asked at the hearing why he omitted Ross from his first application, he testified that he did not put it on the application because he did not consider that he had attended Ross. This response as to why he had made a misrepresentation on his initial application is lacking in credibility. His own testimony and evidence established that he took examinations at Ross on August 24 and 25, 1980, but he paid $9,000.00 in entrance fees to Ross in the fall of 1980, that Ross arranged a psychiatry clerkship, that he took a course in physical diagnosis specifically because Ross informed him that he needed to do so in order to take future medical clerkships; that he paid $75.00 in the spring of 1981 for malpractice coverage for those clerkships under the alleged auspices of Ross and that he was still considered a student at Ross when he began his pediatric clerkship. If he did all of this educational effort supposedly in connection with Ross University, according to his own testimony and other evidence, it is unbelievable that he could not have considered that he had attended Ross University when he filled out the subject application. His own sworn affidavit submitted to the Board explaining why he did not list Ross on the applications stated that he did not list Ross University because he did not think that there were any transcripts to indicate that he had attended Ross. He testified and stated on affidavits to the Board that the reason he transferred from Ross to CETEC was because of a sudden demand by Ross for an additional $24,000.00 in order for him to continue his education there, in excess of the amount the initial agreement had provided for. Even if that is the case, it does not change the fact that, by his own testimony, he knew that he had attended Ross University and did, in fact, attend it. Thus, under all of these circumstances, it is apparent that, for whatever reason, he intentionally misrepresented this portion of his educational history. Another discrepancy or area of misrepresentation occurred on the three applications concerning the medical clerkships which the Petitioner supposedly completed. On all three applications, he was requested to specifically describe and account for each clerkship, giving specific dates, type of rotation, the name and location of the hospital, institution or individual where or with whom the clerkship was performed or supervised. He was required to list all affiliated universities or colleges. In responding to this question, he listed on his first application the following: Psychiatry October 13, 1980 to January 1, 1981. Pediatrics July 13, 1981 to December 4, 1981. Internal medicine September 7, 1981 to October 5, 1981. Internal medicine October 5, 1981 to February 1, 1982. Surgery February 1, 1982 to April 30, 1982. OB/GYN May 1, 1982 to June 6, 1982. On the second application, he added a third internal medicine clerkship stating that it took place from October 3, 1981 to February 28, 1982. It thus overlapped his surgery clerkship. On his fourth application, he added a clerkship for radiology, showing that that clerkship had taken place from February 1, 1982 to April 30, 1982. During parts of February 1982, the Petitioner was taking clerkships in three subject areas at the same time, internal medicine, surgery, and radiology, if the disclosures on his third application are true. In discussing the radiology clerkship on cross- examination, the Petitioner acknowledged that it was somewhat of a combined surgery and obstetrics and gynecology clerkship as part of the same program. The Petitioner received an M.D. degree from CETEC. He began his medical education at UCE. He attended this university as a resident student on its campus. His transcript from UCE shows a lack of a passing score on nine courses. Ross University wrote a letter to him dated June 16, 1981, which he, in turn, provided to the Board, to the effect that he needed transcripts from UCE showing passing scores in histology, biochemistry, neuroanatomy, micro- biology, or that he would otherwise receive F's in those courses. However, the later CETEC transcript shows that CETEC "convalidated" those four courses, even though there was no evidence that he passed them. Convalidation means that the courses were accepted as having been taken and passed at another school. In fact, the accuracy and sufficiency of his medical education is complicated by the fact that his CETEC transcript credits him with courses as having actually been taken at CETEC that even the Petitioner acknowledges were not actually taken at CETEC, such as: community health III and IV, human behavior III, physiopathology, and family medicine. His speculation as to what courses he took at UCE must have counted at CETEC misses the point that CETEC does not "count" them as convalidated, but as taken at CETEC. These discrepancies bring into question the validity of his CETEC education and the documentation submitted regarding it. Whether the inaccuracy is the Petitioner's or attributable to the fault of CETEC is of no moment in determining whether the Petitioner actually received the medical education claimed or the medical education actually "documented". The Petitioner called into question Ross University's record-keeping accuracy, blamed Ross for changing its requirements, for losing his records, and allegedly reneging on certain promises, such as counting courses he supposedly previously took at UCE. However, the Petitioner has not shown any explanation of the CETEC record-keeping "errors" which give him credit for completion of courses at CETEC which he did not even take at CETEC, for his completion of courses at UCE which UCE documents as incomplete, nor for his completion of courses or credits at Ross for which there is no documentation either. It is also noted that he "attended Ross" without ever going to its campus and attended "CETEC" by only appearing on campus for his graduation. Additionally, besides the discrepancies in the academic courses established, there were a number of discrepancies related to the clerkships and preparation for the clerkships. The first of these was that he stated that he had to take a course in physical diagnosis before he could take a pediatrics clerkship through Ross. He therefore obtained an old family friend, Dr. Fleisher, to teach him physical diagnosis. Additionally, he took two nursing courses in physical diagnosis at Adelphi University. Dr. Fleisher is not an M.D., however, but rather is a podiatrist. Dr. Winchester, testifying as an expert in the medical field at hearing, established that a podiatrist cannot teach a physical diagnosis course sufficiently detailed and thorough for a medical student seeking an M.D. degree because a podiatrist is trained, experienced and qualified only to practice at or below the knee. When podiatrists are on hospital staffs in Florida, they may admit patients for surgery, but they must have an M.D. perform the history and the physical examination because of their limited expertise. See, Section 461.003(3), Florida Statutes. A medical student cannot obtain the appropriate education and physical diagnosis by taking a nursing course. In fact, physical diagnosis is an integral part of any quality medical education program and, although it may not be taught as a separate course in all of the accredited medical schools in the United States, it is taught as part of the ongoing education by the faculty of the medical school itself. Students are not sent off to find their own tutors or to attempt to obtain physical diagnosis training from taking nursing school courses in medical schools or medical education programs which are deemed in Florida to be programs or schools which have furnished their successful graduates an adequate medical education. It is thus found, based upon Dr. Winchester's testimony, that the Petitioner's education under the auspices of Ross or CETEC, whichever it was, did not constitute a medical education with regard to the physical diagnosis education. The clerkships were not taught by faculty members of medical schools or in teaching hospitals. In fact, the Petitioner began the pediatrics clerkship under the auspices of one school and finished under the auspices of another school. As established by Dr. Winchester at hearing, this would be unheard of in an accredited medical school in the United States. Since the clerkships are supervised by faculty of the medical school, a student would not transfer medical schools without having to change from one school's clerkship program to another. In addition, the clerkships are characterized by physicians writing letters of verification as to their clerkships or observerships. An observership is an educational experience in which a student only observes what is going on with regard to a particular procedure and does not actually participate. Finally, the testimony revealed that the Petitioner received clinical credit for taking an examination preparation course. This, too, would be unacceptable in a legitimate medical education setting, as shown by Dr. Winchester. Additionally, it is noted that three of the clerkships, internal medicine, surgery, and radiology all overlapped in some point in time, with all three being taken during February of 1982. A clerkship is essentially a full- time experience. A medical education, as that term is used in Florida, does not contemplate taking multiple clerkships at the same time. It is expected that a medical student will give full attention to the area of study and to the patients to which the student is assigned during the clerkship. This cannot be done if three clerkships are being performed at the same time. That this might be perceived as inadequate, even by the Petitioner, is evident in his letter of November 11, 1992 to the Board in which he stated that he had not mentioned his radiology clerkship previously because it overlapped his surgery clerkship. In summary, as to the clerkships, it is determined that they were not of the quality required to be considered a medical education in the State of Florida. This finding is based upon the testimony of Dr. Winchester, which is accepted over that of the Petitioner. Ability to Practice with Reasonable Skill and Safety The testimony and evidence of record does not indicate that the Petitioner has had an adequate medical education. In addition to the inadequacies in his medical education described in the above Findings of Fact, he has not practiced medicine since his graduation from medical school in 1982 nor has he had employment or practice experience related to the field of medicine. He has not worked in a hospital, doctor's office, clinical laboratory, or any other setting in which he might keep his medical knowledge current. He has taken a large number of continuing medical education courses of late, since he filed his initial application. The concept of continuing medical education, however, is that a person should be continually building on an actual basic medical education. The Petitioner has not demonstrated that he is currently able to practice medicine with reasonable skill and safety because of this lack of continuing medical experience and education when added to the basic inadequacy of his underlying medical education, as proven by the evidence in this record. Examination Fee Section 458.347(7)(b)1., Florida Statutes, requires that an applicant pay the application fee and the examination fee. This statutory provision specifically provides that the applicant must pay the fee for the examination and if he is later deemed ineligible to take the examination, then the fee will be refunded. The Petitioner admits that he never paid the examination fee. He insists that he should not have to pay the fee until after he is declared eligible for the examination. While one can understand the applicant feeling that he should not have to pay the fee until after being ruled eligible, the legislature decided otherwise and directed that the fee be paid in order for an applicant to be considered eligible for the examination on a threshold basis. Ms. Faircloth testified that the names of students who were to take the examination have to be sent to the Bureau of Examination Services prior to the examination so that expense and other arrangements can be made for the correct number of examination booklets and proctors for the practical examination. This is a practical policy reason underlying the passage of the statute providing for the advance payment of the fee and for the manner in which the agency interprets that statute. Educational Commission for Foreign Medical Graduates Examination. The Petitioner submitted evidence that he had obtained a score of 65 on the Educational Commission for Foreign Medical Graduates Examination (ECFMGE). He thus maintained at hearing that he was eligible for certification as a physician assistant simply because he had received a score of 65. This evidence was presented and admitted over objection by the Respondent on the grounds that the Respondent had not been placed on notice of such issue because it was not raised in the petition. Be that as it may, the Petitioner has failed to establish eligibility for examination under that provision for the reasons stated in the Conclusions of Law below.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Board of Medicine denying the Petitioner's application for certification as a physician assistant. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1310 Petitioner's Proposed Findings of Fact 1-5. Accepted. 6. Rejected, as not in itself dispositive of the issue presented. 7-15. Accepted. 16. Rejected, as unnecessary and immaterial. 17-23. Accepted. 24. Accepted, but not itself dispositive of material issues. 25-30. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and to some degree not supported by the preponderant evidence of record. 31-33. Rejected, as immaterial. 34-35. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, although the fact that he took a physical diagnosis course from Dr. Fleischer is accepted. Rejected, as not itself materially dispositive of the relevant issues. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in itself dispositive of material issues. 39-43. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in themselves materially dispositive findings of fact. 44. Rejected, as not supported by the preponderant evidence of record. 45-46. Accepted, but not in themselves materially dispositive. 47. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 48-50. Accepted, but not in themselves materially dispositive findings of fact. 51-60. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accord with the preponderant evidence of record. 61-73. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in their entirety materially dispositive. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself material, and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. 77-84. Accepted, in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not in themselves materially dispositive. 85. Accepted. 86-98. Accepted, but not in themselves materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. 99-101. Accepted, but not in themselves material. Respondent's Proposed Findings of Fact 1-31. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Robert J. Boyd, Esquire BOND & BOYD 411 East College Avenue Post Office Box 26 Tallahassee, FL 32302 M. Catherine Lannon, Esquire Assistant Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner, David U. Ewing-Chow, filed an application for licensure by examination as a medical doctor with respondent, Department of Professional Regulation, Board of Medical Examiners, on February 24, 1984. The application was reviewed and considered by respondent at a meeting on December 2, 1984, and proposed agency action denying the application was issued on January 9, 1985. As grounds for denying the application, the agency stated that: . . . the applicant has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety. See Section 458.311 (3), F.S. Further, the applicant has not graduated from medical school or college as required by Section 458.311(1)(b), F.S. The proposed agency action prompted this proceeding. In his request for a hearing, petitioner challenged the agency's signs, and contended he satisfied both objections raised by the agency. Petitioner first enrolled as a regular medical student in October, 1969 at the University of the West Indies in Kingston, Jamaica. He remained in the school's medical program until he failed the preclinical examination a second time in 1972. Because successful completion of that examination was required to remain in medical school, he withdrew from school and moved to England. There he successfully completed the conjoint preclinical examination administered by the Conjoint Society of Apothecaries Preclinicals in London, England. Having passed that examination, Ewing-Chow was readmitted in October, 1972 to the University of the West Indies as a non-degree seeking student to pursue clinical medical courses to qualify him to take the licensure examination in England. Although he was a special student, Ewing-Chow's curriculum was identical to the coursework required of medical degree seeking students. He completed the program in 1975, but did not receive a medical degree from the university. After completing his medical coursework, EwingChow returned to England where, based upon his medical education, he qualified to take the examination for a License in Medicine and Surgery administered by the Society of Apothecaries of London (Society). To qualify for this examination, one need not graduated from a medical school. The Society is not a school or university, and offers no instruction. Rather, it conducts examinations for a License in Medicine and Surgery, and is described in The World Directory of Medical Schools as a "nonuniversity licensing bod(y)." After passing the examination EwingChow received a "Diploma of Licentiate in Medicine and Surgery" from the Society. The Diploma of Licentiate is not a degree in medicine, but is a title or qualification which allows the individual to "temporarily" register for an internship. A one-year internship is required before one can be issued a certificate of registration by the General Medical Council (Council), a statutory body responsible for registering all medical practitioners in Great Britain. Like the Society, the Council grants no degrees, but merely issues a certificate of registration to qualified physicians. In the case at bar, Ewing-Chow completed a one-year internship program in both Trinidad and the University of West Indies. Thereafter, he was certified in full registration by the Council and was accordingly authorized to practice medicine in the United Kingdom. Full registration is the British equivalent to a license to practice medicine in the United States. He also received a license to practice in the European Economic Community. In addition, he is licensed to practice in Trinidad, Jamaica and Tobago. After spending some thirty months in Trinidad as a government physician, Ewing-Chow moved to Miami, Florida in September, 1980, and enrolled in the three-year residency program in the Department of Family Medicine at Jackson Memorial Hospital. He successfully completed this program in June. 1985 and is now chief resident in the family practice residency program. As such, he is in charge of supervising thirty-six other residents in the program. He is eligible to take the examination for board certification in the family practice specialty, but must first be licensed by the State of Florida in order to take the examination. Ewing-Chow has also submitted his credentials to the Educational Commission for Foreign Medical Graduates (ECFMG), and has passed the examination administered by that body. The evidence clearly demonstrates that Ewing-Chow is capable of safely engaging in the practice of medicine with reasonable skill and safety. This was attested to by the chief of family practice at the University of Miami School of Medicine at Jackson Memorial Hospital and is evident from Ewing-Chow's present responsibilities as chief resident in that program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of David U. Ewing-Chow for licensure as a medical doctor by examination be DENIED. DONE and ORDERED this 26th day of March, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986.
The Issue At the commencement of the final hearing the parties stipulated that the specific issue for determination is whether Dr. Walker's medical clerkships constituted allopathic medical education. Counsel for respondent argued that this proceeding affects only Dr. Walker's eligibility to take the licensure exam. For the reasons set forth below, that characterization is rejected.
Findings Of Fact Ralph Waldo Walker II graduated from the American University of the Caribbean in Plymouth, Montserrat, British West Indies. He obtained his medical school diploma in May 1982. As part of the curriculum in medical school he partiipated in clinical clerkship training at Mercy Medical Center in Des Moines, Iowa. All of his clerkships, except psychiatry, were at that hospital and were completed during 1981 and 1982. (Exhibit 1) In Iowa, hospitals are not licensed as osteopathic or allopathic, but rather are simply licensed as hospitals. In Des Moines there is only one hospital that is identified as osteopathic: Des Moines General. Unless a hospital is specifically identified as osteopathic, it is considered allopathic. It is possible, however, for both allopathic medical doctors and osteopaths to practice at either hospital. (transcript, p. 17, 18; Deposition of Dr. Gay, p. 5-7) During the time that Dr. Walker served his clerkship, Mercy Hospital had medical students from the medical school in Guadalajara, Mexico, the American University of the Caribbean, and the University of Osteopathic Medicine and Health Sciences in Des Moines. Less than half of the students rotating on a regularly scheduled basis were from the osteopathic school. Less than half of the students at Mercy during 1981 and 1982 were under the direct supervision of an osteopathic physician. (deposition of Dr. Gay, pp. 8, 10) In his clerkship experience at Mercy Medical Center, Dr. Walker was never supervised by an osteopathic physician. (transcript, p. 17) Mercy Medical Center is listed in the 1980-81 Directory of Residency Training Programs as a hospital approved by the American Medical Association for allopathic residency training in the speciality area of pathology. (deposition of Dorothy Faircloth, pp. 10-11) Dr. Waldo first applied for licensure in Florida in 1983. He paid the $350 application fee, and on February 10, 1984, he appeared before the Board of Medical Examiners' Foreign Medical Graduate Committee where he was guestioned at length regarding his background and education. Upon the affirmative recommendation of that committee, the full board voted to allow him to take the examination. (Exhibit 1, including transcript of the February 10, 1984, appearance) He took the June 1984 exam and failed; he repeated the process and failed the December 1984 exam. He applied for the June 1985 exam and was sent an admission card, but he decided instead to stay out and study. He applied again in August l985, and was sent an admission card for the December 1985 exam. (Exhibit 1) He was a1so reguired to appear again before the Board on November 23, 1985. The basis for the appearance, as stated by Executive Director Dorothy Faircloth, was a letter from a patient in Georgia. The letter was discussed and explained, and the Board questioned Dr. Waldo regarding his clerkships at Mercy Medical Center. The outcome of this appearance was denial of Dr. Waldo's application for licensure. The grounds for denial stated in the Board's order filed on February 6, 1986 are: The applicant's supervised clinical training was not obtained in either a hospital affiliated with a medical school accredited by the Liaison Committee on Medical Education or in a residency program accredited by the Accreditation Council for Graduate Medical Education in the specialty area in which the clinical training is being obtained, as required by Florida Administrative Code Rule 21M-22.18. Furthermore, the applicant's core clerkships were performed in an osteopathic institution, rather than an allopathic institution and do not constitute medical education as that term is used in Chapter 458, Florida Statutes. (Exhibit 1, including transcript of November 23, 1985, appearance before the Board) Dr. Walker. took the Federation licensing Examination (FLEX) in the State of Iowa and passed with scores of 78 and 81. A score of 75 on each component is considered a passing score in Florida. Dr. Walker became licenced to practice medicine in Iowa on August 22 1986. (Exhibit l, transcript, pp. 14, 26)
Recommendation Based on the foregoing, it is recommended that a final order be entered approving Ralph Waldo Walker's application for licensure to practice medicine in the state of Florida. DONE and RECOMMENDED this 31st day of December, 1986 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1986.
