Findings Of Fact Petitioner received his M.A. degree from New School of Social Research, Graduate Faculty of Political and Social Science in New York, New York, in sociology. He received further training in counseling as part of a Ph.D. program in clinical psychology at the Florida Institute of Technology. He is scheduled to receive his Ph.D. this year, having completed all coursework. Petitioner worked as a counselor under the supervision of Dr. Limbillo of the Naples Community Hospital Mental Health Clinic, in 1973 and 1974. He also worked as a counselor under the supervision of Dr. Hughes from 1975 to 1977 and Dr. Roca from 1977 to 1979.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's application for licensure as a marriage and family therapist by exception. DONE and ENTERED this 27th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 27th day of May, 1983. COPIES FURNISHED: Daniel D. Peck, Esquire Suite A-204, Park Square 4089 Tamiami Trail, North Naples, Florida 33940 Drucilla Bell, Esquire 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
The Issue Whether Rule 64B4-21.007, formerly numbered 59P-21.007, Florida Administrative Code, is an invalid exercise of delegated legislative authority. Case No. 97-5032RU Whether the determination, in the first instance, by the Respondent of whether a petitioner for a Chapter 120, Florida Statutes, formal hearing has raised a disputed issue of material fact, is a statement that constitutes a rule, pursuant to Section 120.52(15), Florida Statutes.
Findings Of Fact Based on the stipulation of the parties and the evidence educed at hearing, the following findings of fact are found: Petitioner filed an application for licensure as a marriage and family therapist pursuant to Section 491.005, Florida Statutes. After consideration of the documents submitted by Petitioner, Respondent issued its Order of Intent to Deny filed August 1, 1997. The grounds stated by the Respondent for denying Petitioner's application are that Petitioner did not demonstrate that he completed two years of clinical supervision under the supervision of a supervisor that meets the qualifications stated in Rule 64B4-21.007, Florida Administrative Code. Petitioner completed six semester hours of graduate coursework in marriage and family systemic theories and techniques at an accredited university. The courses were taught by Petitioner's clinical supervisor. Petitioner's supervisor for his clinical experience is a licensed psychologist who did not complete, as a student, six semester hours or eight quarter hours of graduate coursework in marriage and family systemic theories and techniques. The Board interprets Rule 64B4-21.007 to require the supervisor to take the coursework as a student. Teaching these subjects is not considered coursework. Petitioner filed a timely Petition for Formal Hearing which alleged that he had completed two years of clinical supervision under a qualified supervisor. Respondent denied Petitioner's Petition for Formal Hearing on the grounds that Petitioner had not raised a disputed issue of material fact. Petitioner filed a notice of appeal of Respondent's Order denying the Petition for Formal Hearing. Said appeal is pending before the Florida First District Court of Appeal. When Respondent receives petitions for hearing on licensure denials requesting a hearing pursuant to Section 120.57(1), Florida Statutes, the Board reviews the petition and the application file and determines if the applicant has raised a disputed issue of material fact. Rule 64B4-21.007, Florida Administrative Code, was originally adopted on July 6, 1988, as Rule 21CC-21.007. The rule, as originally promulgated, defined "qualified supervisor" as, inter alia, a licensed psychologist who also meets the educational requirements for licensure as a marriage and family therapist. The language requiring the licensed psychologist to meet the educational requirements for licensure as a marriage and family therapist was deleted by the Board in 1993. The deleted language would have required the supervisor to demonstrate not only six semester hours of graduate coursework in marriage and family systemic theories and techniques, but also to demonstrate all of the coursework required for licensure as a marriage and family therapist, a practicum in marriage and family therapy under a qualified supervisor as defined by the Board, and supervised experienced under a qualified supervisor as defined by the Board. In 1996, the Board amended the rule to define "qualified supervisor" as, inter alia, a licensed psychologist who "can document a minimum of six semester or eight quarter hours of graduate coursework in marriage and family systemic theories and techniques." The purpose of the amendment was to provide interns access to qualified people to supervise applicants for licensure in marriage and family therapy, while ensuring that the supervisor was in fact supervising for marriage and family therapy, i.e., training marriage and family interns. Significant differences exist between the profession of marriage and family therapy and the use of marriage and family systemic theories as a modality in the practice of psychology. The legislature recognizes those differences and requires specific education for each of the licenses issued under Chapter 491. The uniqueness of marriage and family therapy as a distinct profession is an acceptance and integration of a systemic paradigm of thought. The professional marriage and family therapist sees the whole as greater than the sum of its parts and seeks to understand the interrelationship of the parts. The education and training required for entry into the profession of marriage and family therapy provides socialization into the systemic framework of the profession, and the two years of supervised clinical experience is a part of that socialization process. The Respondent alleges that it would not be appropriate for the Board to accept only teaching experience in lieu of coursework for an individual to meet the requirements a qualified supervisor. The Board accepts various kinds of educational experiences as meeting the educational requirements of Rule 64B4-21.007(1)(d), including audited courses and externships from recognized clinics. In requiring "qualified supervisors" to demonstrate education, as opposed to teaching experience, the Board seeks to establish a standard and fair evaluation procedure. There is a standardization that has an element of fairness in a paper review in accepting a transcript from a regionally accredited institution as proof of the required education. The Respondent also alleges that accepting teaching experience as meeting the educational requirements of Rule 64B4-21.007 presents a daunting task and would amount to accreditation by the Board of courses taught by persons applicants seek to have approved as qualified supervisors.
Findings Of Fact Jack I. Newcomer, a foreign medical school graduate, applied for licensure by endorsement and the Board of Medical Examiners considered his application on April 12, 1985. Newcomer's application was denied by Order of the Board dated May 9, 1985, on the following ground: The applicant's supervised clinical training was not obtained in either 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 Florida Administrative Code Rule 21M21.18[sic]. Pierre Andre, M.D., a foreign medical-school graduate certified by the Educational Commission for Foreign Medical Graduates (ECFMG) applied for licensure by endorsement. Andre had passed the ECFMG examination and also the Foreign Licensure Examination (FLEX). The Board considered his application, and denied said application on the ground that his supervised 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 his clinical training was obtained as required by Rule 21M-22.18, Florida Administrative Code. The Board adopted Rule 21M-22.18, which took effect on November 28, 1984, and it provided: Foreign Medical Graduates: Qualification Requirements. Before any foreign medical school graduate, except a graduate of an approved school in Canada is admitted to take the written 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 medical school was obtained either in 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. 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 graduate of a medical school not accredited by the Liaison Committee on Medical Education, except a graduate of an accredited school in Canada, is admitted to take the written licensure 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 received in the United States as part of the curriculum 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 parties stipulated at the hearing that only Rule 21M-22.18 as originally enacted was applied to Petitioners and not the amendment which took effect March 13, 1985. According to Charles P. Gibbs, M.D., Assistant Dean for Curriculum at Shands Teaching Hospital and former chairman of the clerkship committee at Shands, 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. 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. Dr. Gibbs testified that written exams, such as FLEX or the National Board, are important in measuring a student's cognitive knowledge and determining minimum qualifications, but cannot measure clinical qualities of a doctor such as how he relates to patients and reacts in stress situations, how he works with colleagues, and how he communicates. Clerkships are important in determining a student's performance level in these clinical qualities. The Liaison Committee on Medical Education 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 required experiences in patient care (customarily called clerkships), are internal medicine, obstetrics and gynecology, pediatrics, psychiatry and surgery. Additionally, many schools require a clerkship in family medicine . . . . The curriculum must provide grounding in the body of knowledge represented in the disciplines that support the fundamental clinical subjects, for example, diagnostic imaging and clinical pathology. Students must have opportunities to gain knowledge in those content areas that incorporate several disciplines in providing medical care, for example, emergency medicine and the care of the elderly and disabled. In addition, students should have the opportunity to participate in research and other scholarly activities of the faculty. 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 schools that are not accredited and that are relatively new schools whose primary purpose is to train United States students rather than their own nationals. Dr. Katims observed that problems with the clinical experience offered at these schools arise because there are not enough teaching hospitals in some foreign countries, and therefore students cannot receive clinical training in those countries through a clerkship. Instead, they must arrange their own clinical experience, usually a preceptorship, in the United States. A preceptorship differs substantially from a clerkship in that it is usually either a one on one affiliation with a practicing physician with very little structured training, or occurs at an outpatient prepaid health plan facility. Dr. Katims testified that preceptorships do not meet the clinical training standards of the Liaison Committee on Medical Education, and do not represent supervised clinical training.
The Issue The issue presented is whether Petitioner's application for licensure as a physician by examination pursuant to Section 458.311(8), Florida Statutes, should be granted.
Findings Of Fact Petitioner attended medical school in Cuba from September 1978 through July 1984. In that country, the academic year commences in September and ends in July. The medical school program in Cuba is a six-year curriculum which is divided into three phases, with each phase lasting two years. Phase I involves the study of normal structures and functions of the human body (basic science courses); Phase II involves the study of pathological structures and functions (clinical rotations in hospitals); and Phase III involves integral medical care. Clinical rotations continue through the first half of Phase III, the student's fifth year in medical school. During the second half of Phase III, the medical student undertakes a rotating internship in four disciplines or a vertical internship in an individual discipline. The four disciplines are internal medicine, pediatrics, obstetrics and gynecology, and surgery. The student must pass a theoretical and practical examination in each discipline in order to proceed to the next rotation. After the medical student successfully completes each Phase, including the internship, the student is awarded the degree of Doctor en Medicina. During Phase III, instruction is given in the form of lectures, small group seminars, individual instruction, practical training, and problem-oriented instruction. Students rotate to different teaching hospitals and polyclinics. At the teaching hospitals, students review clinical records with the principal professors and discuss, as a group, patient symptoms, diagnoses, and treatment. The polyclinics are neighborhood clinics emphasizing preventative medicine. While students are working at the polyclinics, they are not members of the staff; rather, the staff doctors supervise and consult with the medical students rotating through the various polyclinics. A medical student graduates after completion of the sixth year's curriculum without the necessity of taking a written examination. To practice medicine in Cuba, however, it is necessary for the medical school graduate to obtain a license and register with the national health registry. Upon registering, the physician receives a medical card, which carries the picture and signature of the physician. Petitioner completed a rotating internship from September 1983 through July 1984 as part of her medical education. She was assigned to a physician/specialist in each field of study during her internship rotation. She examined patients in front of her fellow students and/or the professor. She participated in discussions regarding pathology or symptoms, particular diagnoses, and appropriate treatments. She interviewed patients, performed physical examinations, and ordered laboratory tests if indicated. She did not participate in surgical procedures during the surgical rotation of her internship. Although Petitioner completed her medical school curriculum in July 1984, she did not receive a diploma. She did not register with the national registry and, therefore, did not receive a medical card. In September 1984 Petitioner left Cuba and went to Venezuela. Petitioner offered no evidence as to her activities from July 1984 when she completed her medical school curriculum until September 1984 when she left Cuba. Petitioner has taken the examination offered by the Educational Commission for Foreign Medical Graduates once, but she did not receive a passing grade on that examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure pursuant to Section 458.311(8), Florida Statutes. DONE and ENTERED this 22nd day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 22nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1, 4, 5, and 5 [sic] have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the evidence in this cause. Respondent's proposed findings of fact numbered 2-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1 and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. COPIES FURNISHED: Frank Valladares, Esquire 2955 Southwest 8th Street Suite 204 Miami, Florida 33135 Gregory A. Chaires, Esquire Christopher E. Butler, Legal Intern Office of the Attorney General Suite PL01, The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. Petitioner applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology and chemistry. On February 11, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours or HEW exam required under Section 10D-41.25(9) or (10), Florida Administrative Code. Petitioner holds a high school equivalency diploma. Petitioner attended the Manhattan Medical Assistants' School in 1960-1961 and graduated from that school, receiving a diploma as a Laboratory Technologist. When Petitioner attempted to obtain a transcript of his studies at that school, he discovered that the school is no longer in business; and, accordingly, he is unable to obtain a transcript reflecting his studies there. Petitioner does not have a bachelor's degree from an a"credited college or university. Through the years, Petitioner has taken a number of continuing education courses, but these courses have not been affiliated with an accredited college or university. Prior to moving to Florida, petitioner was employed for seventeen years as a Laboratory Technologist at the New Rochelle Hospital Medical Center and was a supervisor of the evening and night shifts at that Center. Petitioner's witnesses testified as to the quality of Petitioner's work as an employee of the Department of Pathology at South Miami Hospital. Petitioner has taken the U. S. Public Health Service proficiency examination in clinical laboratory technology. A satisfactory score on all sections of that examination must be obtained in order to Pass the examination. Petitioner passed each section of the examination except for the hematology section. He attempted to retake the examination but was advised that the March 30, 1979, examination was the last test scheduled by HEW. That examination has been administered on five different occasions between the years 1975 and 1979. There is no information available as to whether the HEW examination will or will not ever be administered again. That examination is not the same as the licensure examination given by the Respondent but can act as a prerequisite, if satisfactorily completed, to the state licensure examination. An approved course of study is available to Petitioner at Miami-Dade Community College. Personnel at that school have advised him that he would receive thirty-two credits for his life's work and that he would be required to take six or seven examinations plus approximately a year's worth of courses. Petitioner does not desire to attend that college even on a part-time basis several times a week, since he is employed at two full-time jobs at this time.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: Richard N. Krinzian, Esquire 8585 Sunset Drive, Suite 190 Miami, Florida 33143 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, David Mark McGrew, was licensed as a medical doctor by petitioner, Department of Professional Regulation, Agency for Health Cost Administration, Board of Medicine (Board), having been issued license number ME 0042526. Respondent is engaged in the practice of medicine as a family practitioner at 4655 Keysville Avenue, Spring Hill, Florida. He has been licensed by the Board since 1983, is board certified in family practice, and is president of the Florida chapter of the Academy of Hospice Physicians. Except for this proceeding, which is based on a failure by respondent to comply with a previous Board final order disposing of a complaint, there is no evidence that respondent has been subjected to prior disciplinary action. The facts which gave rise to this dispute are as follows. On an undisclosed date in 1988 or 1989, the Board issued an administrative complaint against respondent alleging generally that he had inappropriately prescribed certain pain medication to a longtime patient. Although respondent was not represented by counsel, he entered into negotiations with the prosecuting attorney and eventually executed a stipulation wherein he agreed to certain conditions, including the imposition of a $500 fine to be paid within thirty days from date of the final order, a reprimand, and a requirement that he attend a three day course at the University of South Florida School of Medicine. However, respondent did not admit that his prescribing was inappropriate or excessive. The stipulation was presented to the Board at a meeting held on August 5, 1989. The dialogue of the relevant portion of the meeting was introduced into evidence as a part of joint exhibit 1 and petitioner's exhibit 3. It should be noted that a considerable amount of discussion was given to whether new conditions should be substituted for those contained in the stipulation. The discussion in the transcript does contain comments, albeit somewhat unclear, which lend support to the Board's contention that it intended to add a number of new conditions to the agreement but also retain the $500 fine. At the same time, however, the transcript discloses that respondent, who was not represented by counsel at the meeting, did not fully understand that certain features of the original agreement were being retained in the new agreement. This is evidenced by the fact that near the end of the meeting, respondent was requested to reiterate his understanding of the terms and when he did he failed to include a fine. No one corrected his misunderstanding. Accordingly, respondent left the meeting with the impression that the original stipulation had been rejected by the Board and a new agreement approved which required that respondent be reprimanded, he complete a course of at least two weeks duration in pharmacotherapeutics and addictionology within six months from the date of the final order, and for a period of one year after completion of the course, he use sequentially numbered duplicate prescriptions in prescribing controlled substances, retain one copy of the prescription in the patient's records, and furnish a DPR investigator a copy of all such prescriptions within thirty days after being written. Respondent believed that the Board no longer intended to impose a $500 fine, particularly since no specific mention of the fine was made by the Board's members while discussing the new conditions and because the Board had imposed a new (and more costly) requirement that he attend a two-week approved course. Finally, respondent was under the impression that the Board would lend assistance in finding a course of the nature prescribed at the meeting since respondent was unaware of any formal course of that duration. On August 17, 1989, the Board issued its final order concerning the stipulation. The order provided that "the (original) Stipulation as submitted be and is hereby approved and adopted in toto and incorporated by reference herein with the following additions:" Thus, the Board actually approved the original stipulation, including the fine, with certain modifications. The final order did not carry the advice that if respondent disagreed with the order, he must file an appeal with the district court of appeal within thirty days. This was probably because, in the original stipulation, respondent had specifically waived "all further procedural steps, and expressly waive(d) all rights to seek judicial review of or to otherwise challenge or contest the validity of the joint stipulation". Thus, the final order was never appealed, and its specific terms were not timely satisfied. However, for the reasons stated later, the failure by respondent to satisfy these conditions was not intentional and occurred because of his misunderstanding of the agreement and his failure to find a satisfactory two-week course. On August 22, 1989, respondent wrote the Board a letter acknowledging receipt of the final order and stating that he believed the Board had specifically rejected the fine in favor of a two-week educational course and that he "did not agree to a $500 fine." He asked what he should do about this disagreement, and then noted that he had contacted fourteen schools, individuals or organizations regarding courses that might satisfy the educational requirement imposed by the Board, and had been offered an internship at a pain clinic. After receiving no reply to his August 22, 1989, letter, respondent again wrote the Board on October 17, 1989, regarding his prior inquiry. He added that "it is my sincere desire to get this matter resolved at the earliest convenience." A second follow-up letter was sent by respondent to the Board on January 19, 1990, with copies of his two earlier letters. In addition, he made several telephone calls to the Board seeking to obtain a reply to his inquiries. On June 11, 1990, or some ten months after respondent's first letter, a Board administrative assistant replied to respondent's letter and acknowledged that "there was some confusion as to the administrative fine imposed by the Final Order dated August 17, 1989." The letter also stated: The tape of your appearance before the Board of Medicine on August 5, 1989, has been reviewed and there is no indication that the Board agreed to waive the $500 administrative fine which was due September 16, 1989. The amendment to the Stipulation concerned a formal course in pharmacotherapeutics and addictionology, to be a minimum of two weeks in length and approved by the Board. This course was to have been taken as soon as possible, but in any event, no later than six months after the date of the Final Order. After completion of the course reference (sic) above, the one year monitoring of your prescribing habits was to begin. At this time, there is no indication in your file that such a course has been approved by the Board or completed by you. In order to avoid possible disciplinary action against your license, please comply as soon as possible with the requirements of the Final Order. If you have further questions regarding this matter, please contact the Board office. (Emphasis in original) This letter prompted further correspondence between respondent and the Board. On June 26, 1990, respondent wrote another letter to the Board in which he acknowledged receipt of the Board's recent letter and gave a lengthy description of his unsuccessful efforts to find a course of the nature prescribed by the Board in its final order. He identified several shorter courses he had already attended plus future courses he planned to attend and asked that they be used collectively to satisfy the two weeks of educational training. He also asked for a copy of the tape of the Board's meeting. On July 25, 1990, a Board administrative assistant replied to respondent's letter and advised him that he was "in violation of the Final Order." The letter further stated that he was required to pay a $500 fine no later than September 16, 1989, or thirty days after the final order. As to the educational requirement, the assistant noted that the Board "acknowledges your attempts to receive guidance regarding the course of education, therefore, if it is your wish to attempt to comply with the requirement of the Order, we suggest that you consider the following individuals." The letter then identified two physicians in Minnesota who had "experience in assisting physicians fulfill particular course requirements." Finally, the letter noted that "failure to comply with a lawful order of the Board may be grounds for further disciplinary action." On August 18, 1990, respondent again wrote the Board and stated that he had just learned the Board was considering the issuance of another administrative complaint and was surprised. He also indicated he had contacted the two individuals mentioned in the Board's letter of July 25, 1990, and the courses offered by those individuals were "unstructured internship programs" of a type which had been previously rejected by the Board as being insufficient. Finally, respondent mentioned that he could attend a two-week course offered by a substance abuse center if this met the Board's approval. By letter dated August 29, 1990, a Board administrative assistant replied to respondent's letter and told him his suggested coursework would be presented to the Board at its September 20, 1990, meeting, and he would be notified of its decision. Thereafter, on October 8, 1990, respondent was advised by letter that the Board had rejected his request for approval of the two-week course at the substance abuse center. The Board also advised that respondent's request for partial credit for attending a conference on prescription drug abuse had been rejected. On October 24, 1990, the Board filed an administrative complaint against respondent for failing to comply with the terms of the final order issued on August 22, 1989. That prompted respondent to initiate this proceeding. At hearing respondent established that, although he had not yet attended a formal two-week course in pharmacotherapeutics and addictionology, he had no intent to defy the Board's order. Indeed, respondent has made a genuine effort to comply with this requirement by contacting numerous schools, individuals and organizations, including several suggested by the Board, but he has had no success in finding a two-week course that would meet the Board's approval. He has repeatedly asked the Board for assistance in finding such a course but was offered only very limited assistance. To illustrate his willingness to attend continuing medical education courses, respondent identified twenty-five courses of varying duration (but all less than two weeks) he has attended since the Board's final order, many of which deal with pain management and therapy. These courses total 173.25 hours, or twice the hours that would be included in a formal two-week course. He was also certified as a diplomate in the American Academy of Pain Management in 1990, which evidences further skills and knowledge obtained in this area after the Board's final order. He has expressed a complete willingness to attend the requisite course if he can find one that meets the Board's satisfaction. In the alternative, he has asked that the hours spent attending shorter courses in the same subject matter be used as credit towards satisfying the two-week course. This is a reasonable alternative and should be approved since the number of hours far exceeds the number he would receive in a two-week course. As to the fine, respondent has reviewed the transcript of the Board's meeting and still maintains that there is no indication in the transcript that the Board intended to assess a $500 fine when it imposed the new conditions. However, because he has now, for the first time, been given his "day in court" in this proceeding to explain his side of the story, he is willing to pay the fine if in fact the Board still intends to assess one. There is no evidence to show that respondent deliberately defied the Board's order that he pay the fine since he genuinely believes his position on that issue is correct. Finally, respondent is concerned that if he is found guilty in this proceeding, the disposition will be reported to the National Practitioners Data Bank and will be a permanent mark against his license to practice medicine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order dismissing with prejudice the administrative complaint. Respondent should also be required to comply with the terms of the final order issued on August 17, 1989, as discussed in paragraph 17 of this order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of September 1992. DONALD R. ALEXANDER 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 18th day of September 1992. APPENDIX Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6-8. Partially accepted in finding of fact 4. 9. Rejected as being unnecessary. 10. Partially accepted in finding of fact 13. 11-14. Partially accepted in finding of fact 3. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17. Partially accepted in finding of fact 11. 18. Partially accepted in finding of fact 4. Respondent: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6. Partially accepted in finding of fact 4. 7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11-12. Partially accepted in finding of fact 7. Rejected as being unnecessary. 14-18. Partially accepted in finding of fact 3. 19. Rejected as being contrary to the evidence. 20-22. Partially accepted in finding of fact 3. 23. Partially accepted in finding of fact 4. 24. Partially accepted in finding of fact 7. 25. Partially accepted in finding of fact 8. 26. Partially accepted in finding of fact 10. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in findings of fact 9 and 10. 30. Partially accepted in finding of fact 10. 31. Partially accepted in finding of fact 11. 32. Partially accepted in finding of fact 12. 33. Rejected as being unnecessary. 34. Partially accepted in finding of fact 13. 35. Rejected as being unnecessary. 36. Partially accepted in finding of fact 13. 37. Rejected as being unnecessary. 38-39. Rejected as being irrelevant. 40-41. Partially accepted in finding of fact 10. 42-43. Partially accepted in finding of fact 13. 44. Rejected as being irrelevant. 45. Rejected as being unnecessary. 46-47. Partially accepted in finding of fact 13. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, not supported by the evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Richard A. Grumberg, Esquire Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lee Sims Kniskern, Esquire Suite 630 2121 Ponce de Leon Coral Gables, Florida 33134-5222 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue At issue in this proceeding is whether petitioner's application for a medical license by endorsement should be approved.
Findings Of Fact The Findings of the Facts of tbe Recommended Order are adopted by the Board of Medicine as being based on competent substantial evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered certifying petitioner's application to the Department of Professional Regulation, for licensure by endorsement with, should the Board be persuaded that such is appropriate, placement of petitioner on probation for such term and subject to such conditions as the Board may reasonably specify. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of April 1991. WILLIAM J. KENDRICK 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 24th day of April 1991.
The Issue The issue posed for decision herein is whether or not the Petitioner, Herman D. Rudnick, M.D., is entitled to be licensed as a mental health counselor, by exception, pursuant to Section 490.013, Florida Statutes. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, 2/ and the entire record compiled herein, the following relevant facts are found:
Findings Of Fact Herman D. Rudnick received his M.D. degree from Hahnemann Medical College in Philadelphia, Pennsylvania in 1943. He served an internship at the Philadelphia General Hospital, specializing in psychiatry. The Petitioner applied to the Respondent for a license by exception as a mental health counselor, pursuant to Section 490.013, Florida Statutes. Respondent denied Petitioner's request for a license as a mental health counselor by finding that Petitioner failed to meet the educational requirements pursuant to the statutes. Specifically, by letter dated December 10, 1982, Jane Raker, Executive Director for Psychological Services, Department of Professional Regulation, denied Petitioner's application for licensure by exception as a mental health counselor for the following reasons: Petitioner failed to satisfy the requirement of a minimum of an earned Masters Degree in a planned, supervised, and integrated program in mental health counseling, community counseling, psychology, guidance counseling, or rehabilitation counseling required by Section 490.013(3)(b), Florida Statutes, and including course work defined in 21U-500.08, Florida Administrative Code. Petitioner failed to satisfy the requirement of completing eighteen (18) graduate level semester hours in one or more of the following areas: counseling theories in practice, counseling guidance, theory of human behavior and methods required by 21U-500.08(1)(a), Florida Administrative Code. Petitioner failed to satisfy the graduate level course work in at least one (1) of the following areas: evaluation, research, appraisal, assessment, or testing procedures required by 21U-500.08(1)(b), Florida Administrative Code. Petitioner failed to satisfy the requirement of completion of graduate level supervised practicum, internship, or field experience in a counseling setting required by 21U-500.08 (1)(c), Florida Administrative Code. Petitioner is presently a diplomate in psychiatry. Petitioner has been employed in private practice as a psychiatrist since 1949 and has had more than three years experience in the practice of mental health counseling, including training other mental health professionals. Petitioner is a resident of the State of Florida. Petitioner is a medical doctor, and is certified as a specialist in psychiatry. Petitioner, as stated, completed his M.D. degree in 1943 and a transcript of his exact course work and credit hours is no longer available. Petitioner received further psychiatric training from the U.S. Army at the Columbia Medical Center in New York, and eventually received diplomate status in the American Medical Association in psychiatry. Petitioner received two years of course work and supervision from the Veterans Administration in Coatsville, Pennsylvania in psychiatry during 1947- 48. Petitioner participated in a supervised program at the Philadelphia Psychoanalytic Institute from 1948 to 1954. Petitioner did not receive any degree from that program, nor is the Philadelphia Psychoanalytic Institute an accredited institution. Petitioner received graduate training in mental health counseling and psychology under the auspices of Columbia University during his stay in the Army. The exact nature or amount of such training was not established. Columbia University is accredited and approved by the United States Department of Education. Petitioner contends that he received graduate and postgraduate training under the auspices of the Temple University Medical School during 1952 and 1953 and that such training was equivalent to an earned Masters Degree in planned and supervised counseling in mental health work and course work far exceeding the eighteen hours of course work required pursuant to Rule 21U- 500.08, Florida Administrative Code. Respondent's training while at Temple University Medical School Department of Psychiatry was not verified by an official from the school. Temple medical School Department of Psychiatry is a school which is accredited by an accrediting agency approved by the United States Department of Education. (Rule 21U-500.08(1)(c) , Florida Administrative Code.)
The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement. Specific to the grounds for denial are the issues of whether Petitioner is of good moral character and whether he is able to practice with skill and safety.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Norman M. Phillips, M.D., is a graduate of St. George's University School of Medicine, Grenada, West Indies, a foreign medical school. Petitioner holds a certificate from the Educational Commission on Foreign Medical Graduates (ECFMG) and has passed the ECFMG examination. Petitioner obtained a passing score on the licensing examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). Petitioner is licensed to practice medicine in New Jersey. Petitioner is over 21 years of age. Petitioner has completed at least one year of an approved residency. The Petitioner has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician, pursuant to Section 458.331(1) or (2), Florida Statutes. Petitioner applied for licensure by endorsement as a physician in Florida. On March 26, 1988, Petitioner appeared before the Credentials Committee of the Board regarding his application for licensure. The Credentials Committee recommended to the Board that Petitioner's application be denied. The basis for this recommendation was Petitioner's alleged inability to practice medicine with reasonable skill and safety due to a mental condition and his prior performance during his medical training. The recommendation also claimed Petitioner was not of good moral character. The Board adopted the recommendation of the Credentials Committee and issued an Order stating its intent to deny the Petitioner's application. Thereafter, Petitioner timely filed for an administrative review of the denial. After graduation from medical school, Petitioner was accepted into a residency program at St. Peter's Medical Center, New Brunswick, New Jersey. This program was in internal medicine and was to cover three years of postgraduate work. After the first year, Petitioner was evaluated and offered a contract for the second year of the program. Dr. Andrew L. Hahn was the program director of the internal medicine residency program. Dr. Hahn is an expert in the matter of residency training of medical students. Dr. Hahn evaluated Petitioner's performance as satisfactory. During the second year of the residency, Petitioner received an unfavorable evaluation which placed him on notice of a need to improve in order to receive a contract for the third year of the program. Petitioner ably made necessary corrections, improved his work performance, and, consequently, received a contract for the third year. After Petitioner had received notice of his contract for the third year, he was required to perform a rotation in radiology. This rotation was selected as it was the only available course given in the time period. While Petitioner would have preferred another topic, he accepted the assignment and agreed to the rotation. The rotation consisted of approximately three weeks of classroom lectures given at a location away from Petitioner's hospital assignments. After attending a few early sessions, Petitioner determined that he had already studied the subject matter of the course in medical school and that further attendance would not benefit him. Petitioner erroneously concluded attendance was not required. Instead of attending the rotation course lectures, Petitioner remained home studying other materials, performed his hospital duties, and made applications relating to future work. Petitioner's patients did not suffer as a result of the missed classroom sessions. Petitioner attended the clinic he was assigned to during the rotation period. When Petitioner's superiors were informed of the failure to attend the classroom sessions, they approached Petitioner for a satisfactory explanation which he was unable to provide. Since they (including Dr. Hahn) considered the failure to attend a serious breach of his professional responsibility, Petitioner was given the choice of either resigning his third year placement or being terminated. Petitioner agreed to resign his third year and was given a certificate for the two years he completed. At the time of his resignation Petitioner offered to repeat the classroom work but that option was rejected by Dr. Hahn. After resigning, Petitioner told his superiors that he had worked in a pharmacy (he is a licensed pharmacist) during the time he was supposed to have been in the radiology classes. He indicated he had done this because he needed money. Petitioner had not worked in a pharmacy, however, and had fabricated the story in a lame effort to excuse his nonattendance. Subsequently, Petitioner was interviewed by Dr. Bernard Sandler for a residency program in physical medicine and rehabilitation at the Robert Wood Johnson, Jr. Rehabilitation Institute of the John F. Kennedy Medical Center in Edison, New Jersey. Petitioner was accepted into the program and fell under the supervision of Dr. Thomas Edmund Strax. Petitioner successfully completed this program in December, 1987. Petitioner did not disclose the underlying facts of his resignation from the internal medicine program to either Dr. Sandler or Dr. Strax, however, neither physician questioned him at length about it either. Petitioner did not misrepresent any pertinent history; he simply did not volunteer embarrassing information. During his residency in rehabilitation, Petitioner was observed by Drs. Sandler, Harold Arlen, and Fazal Panezai. All of these physicians found Petitioner to be able to practice medicine with skill and safety. Petitioner did not exhibit any problem related to malfeasance or incompetence. Petitioner got along with staff and worked well with others. As a resident in the rehabilitation program, Petitioner was evaluated by Dr. Strax who determined that Petitioner would require improvement in order to meet the high standards Dr. Strax maintained for his course of study. Petitioner was able to make the necessary improvements and satisfactorily met Dr. Strax's objectives. Dr. Strax is an expert in the matter of residency training of medical students. Dr. Strax had an opportunity to review Petitioner's work on numerous occasions. Dr. Strax recommended Petitioner for licensure and - found him to be qualified and competent. Petitioner is presently employed as a physician at the Veterans Administration Medical Center in Miami, Florida. Petitioner is not required to be licensed in his present employment since such position is exempt from licensure. Petitioner's present supervisor is Dr. Dorothea Glass, Chief of Rehabilitation Services. Dr. Glass interviewed Petitioner and reviewed references Petitioner had given to her. Dr. Glass knows Dr. Strax who recommended Petitioner for the position which he currently holds. While Dr. Strax advised Dr. Glass to "keep an eye on him," Dr. Glass has done as she would with all young doctors. Dr. Glass has worked with Petitioner on a daily basis since February, 1988, and believes he is competent, hardworking and honest. Petitioner is able to practice medicine with skill and safety. Petitioner is of good moral character. Petitioner did not misrepresent material information when he appeared before the credentials committee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Medicine enter a final order approving the application for licensure by endorsement for the Petitioner, Norman M. Phillips, M.D. DONE and RECOMMENDED this 30th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of May, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 9 are accepted. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 10 through 32 are accepted. Paragraphs 33 through 36, are accepted but are irrelevant to the issues of this case. Paragraph 37 is accepted. Paragraph 38 is rejected as speculation or argument. Paragraph 39 is accepted. Paragraphs 40 through 51 are accepted. Paragraph is rejected as irrelevant. Paragraphs 53 through 63 are accepted. To the extent addressed in findings of fact paragraph 21, paragraphs 64 through 68 are accepted. Paragraphs 69 through 71 are accepted. Paragraphs 72 through 73 are rejected as immaterial, recitation, or argument. Paragraphs 74 through 76 are rejected as recitation of testimony or argument. See findings of fact paragraph 20. Paragraph 77 is rejected as argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 10 are accepted. Paragraph 11 is rejected as irrelevant to the extent that it refers to Petitioner's performance as "marginal." Petitioner was rated satisfactory and was permitted to continue. There were areas in which he required improvement, which he was able to correct. Paragraph 12 is accepted with the clarification that the radiology rotation was selected because it was the only one available to Petitioner at the given time. That portion of paragraph 12 which relates a fourth week work in the emergency room is rejected as contrary to the weight of credible evidence. With regard to paragraph 13, that portion which states Petitioner did not attend the classroom radiology rotation is accepted, the remainder is rejected as either unsupported by the record, contrary to the weight of the evidence, or irrelevant. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 14 through 16 are accepted otherwise rejected as irrelevant or contrary to the weight of the credible evidence. It should be noted that any reference to emergency work deficiencies have not been credited nor are they supported by this record. Paragraph 17 is rejected as argument. Paragraph 18 is rejected as contrary to the weight of the credible evidence or argument. Paragraph 19 is rejected as argument, irrelevant, or immaterial to the issues of this case. Paragraph 20 is rejected as argument. Paragraph 21 is rejected as unsupported by the weight of credible evidence or argument. Paragraph 22 is accepted to the extent addressed In findings of fact paragraph 17; otherwise rejected as irrelevant or contrary to the weight of credible evidence. To the extent addressed in findings of fact paragraph 19, paragraph 23 is accepted. Paragraph 24 is accepted. Paragraph 25 is rejected as recitation of testimony, argument, or irrelevant. Paragraph 26 is accepted. Paragraph 27 is rejected as unsupported by the weight of the credible evidence, irrelevant, or argument. COPIES FURNISHED: Robert S. Turk VALDES-FAULI, COBB, PETREY & BISCHOFF, P.A. Suite 3400-One Biscayne Tower Two S. Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050
The Issue Whether the Petitioner has met the requirements for licensure as a medical doctor in the State of Florida set forth in Section 458.311(1)(f), Florida Statutes (1986 Supp.), as required by Section 458.313(1), Florida Statutes (1986 Supp.)?
Findings Of Fact The Petitioner applied for licensure by endorsement as a medical doctor in Florida in September of 1986. Following notification by the Respondent that additional materials were required to complete the Petitioner's application, the Petitioner timely submitted the materials. In March of 1987, the Petitioner appeared before the Foreign Medical Graduate Committee of the Respondent. On April 5, 1987, the Respondent entered an Order titled Notice of Intent to Deny the Application for Licensure by Endorsement of Hien B. Nguyen. The stated basis for the denial of the Petitioner's application was that the Petitioner had failed to demonstrate that he graduated from a medical school. The Petitioner began medical school in 1967 at the University of Saigon, Faculty of Medicine, in Saigon, Republic of Vietnam. The Petitioner Successfully completed the six years required course work in medicine at the University of Saigon, Faculty of Medicine, in 1974. Following the completion of the course work required to earn a medical degree at the University of Saigon, Faculty of Medicine, the Petitioner was drafted into the Republic of Vietnam's military. He attended training for approximately six months immediately following the completion of his medical degree course work. The Petitioner was required to complete a thesis before being eligible for a medical degree from the University of Saigon, Faculty of Medicine. Upon completion of military training, the Petitioner commenced and completed work on his thesis. The Petitioner's thesis consisted of a translation of "Central Nervous Disease in Children," of Nelson's Pediatric Textbook, from English into Vietnamese. The Petitioner presented his thesis on April 14, 1975. Thuc R. Bach, M.D. attended the presentation of his wife's thesis on April 14, 1975, and witnessed the Petitioner's thesis presentation. The Petitioner was awarded a Certificate from the University of Saigon, Faculty of Medicine, on April 14, 1975, which indicated that the Petitioner had completed work necessary to be awarded a medical degree. The Certificate was issued temporarily. After approximately five years the Petitioner was required to return the Certificate at which time he could be issued an official diploma. On approximately April 30, 1975, the government of the Republic of Vietnam fell to the army of North Vietnam. Following the fall of the Republic of Vietnam, the Petitioner was confined to a concentration camp where the Petitioner acted as camp doctor. Following the Petitioner's release from confinement in 1976, the Petitioner worked as a physician at Saint Paul Clinic in Saigon until 1979. From 1977 until 1980 the Petitioner also attended and taught at a medical training center in Saigon. In October, 1980, the Petitioner escaped from Vietnam. He resided in Galang, Indonesia until March, 1981, when he moved to the United States. The Petitioner has completed the following since his arrival in the United States: December, 1981: Sat for the Federation Licensing Examination and was subsequently certified by the Federation of State Medical Boards; January 24, 1983: Certified by the Educational Commission for Foreign Medical Graduates; July, 1984 - June, 1985: Interned at the Cook County Hospital, Chicago, Illinois; July, 1985 - June, 1987: Residency program at Cook County Hospital, and February 19, 1986: Licensed as a physician by the State of Illinois (the license is currently active and unrestricted). The Petitioner was presented with a certificate from the Faculty- Council-in-Exile of the Faculty of Medicine of the University of Saigon dated April 20, 1981. The certificate affirms that the Petitioner "Successfully completed the course of study leading to the degree of Doctor of Medicine..." The certificate is signed by the Dean Emeritus of the University and Dao Huu Anh, M.D., Associate Dean of the University. Prior to the fall of the government of the Republic of Vietnam, graduates of the University of Saigon, Faculty of Medicine, were presented with a certificate authorizing them to practice as a physician without restriction upon completion of the required courses of study and a thesis. Graduates were not issued an Official Diploma until five years had passed since the issuance of their certificate. Although the Petitioner completed the required courses of study, presented his thesis and received a certificate authorizing him to practice as a physician, the Petitioner was not able to obtain an Official Diploma five years later because of the fall of the government of the Republic of Vietnam. In light of the fall of the government of the Republic of Vietnam, it is doubtful that the records of the University of Saigon, Faculty of Medicine are available or that the Petitioner could obtain an Official Diploma. The Petitioner is a graduate of the University of Saigon, Faculty of Medicine, a medical school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's application for licensure by endorsement as a medical doctor in the State of Florida. DONE AND ORDERED this 25th day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2969 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 5. 5 6. 6 7-10. 7 11-12. 13. The Petitioner worked at the training center from 1977 through 1980. 15. The Petitioner went from Vietnam to Indonesia in October of 1980. He did not travel to the United States until March of 1981. 10-12 Cummulative, summary of the evidence and unnecessary. Dr. Nghia Van Tran's letter was not accepted into evidence. 13 16. The last sentence is cummulative, a summary of evidence and unnecessary. The footnote is irrelevant. The burden of proof in this proceeding was on the Petitioner. The Respondent is not required to verify the signature of Dr. Dao. 14 10 and 17. 15 17-18. 16-18 Cummulative, summary of the evidence and unnecessary. The Respondent's Proposed Findings of Fact 1 1 and 3. 2-5 The Respondent's remaining proposed findings of fact are essentially summaries of the Respondent's inter- pretation of the evidence and argument concerning the evidence. The Respondent's interpretation of the evidence is rejected. The following is a brief discussion of why the Respondent's arguments have been rejected. The first two sentences are true and support the finding of fact that the Petitioner began medical school in 1967, completed his course work in 1974 and presented his thesis in April of 1975. See findings of fact 4-5 and 9. The third and fourth sentences are true but the Respondent has overlooked the fact that the Petitioner presented other evidence which supports his position. Therefore, even if the fifth sentence were correct, there is other evidence which supports findings of fact 4-5 and 9. The sixth sentence is irrelevant. Although the Board may have raised a question, the correct answer to that question is a matter of proof. The seventh sentence is true but irrelevant. The eighth sentence is not supported by the weight of the evidence. There was no testimony sufficient to support any finding of fact concerning Dr. Dao's signature on any document. Although the ninth sentence is correct, the weight of the evidence does not support the alleged fact set out in the tenth sentence. The eleventh sentence was taken into account in the weight given to Dr. Dao's statement. Although the twelfth sentence is correct the thirteenth and fourteenth sentences are not supported by the weight of the evidence. While it is true that the Petitioner's testimony with regard to when he completed his course work at the University of Saigon was not totally consistent, the weight of the evidence supports a conclusion that the Petitioner finished his course work in June of 1974. The Petitioner's explanation concerning the inconsistency in his testimony was credible. The first and second sentences are true. The third sentence is true but overlooks the fact that it corroborates non-hearsay evidence. The fourth sentence is law. The fifth sentence is true. The sixth and seventh sentences are true. The eight sentence is not supported by the weight of the evidence. The ninth and tenth sentences are true but they do not support the ultimate conclusion the Respondent suggests. It is possible that the Certificate in question could have been based upon other credible evidence. The first sentence is true. The second sentence is not supported by the weight of the evidence. The Petitioner testified that he completed his course work in 1974. The third sentence is true. The fourth and fifth sentences are not supported by the weight of the evidence. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams 420 First Florida Bank Building Post Office Box 6526 Tallahassee, Florida 32314 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
