Findings Of Fact Petitioner, Dr. Winifred Chambers received a master's degree in religion and art in 1957, a second master's degree in 1968 in philosophy with a specialization in ethics and social philosophy and a Ph.D. (with honors) in 1975 in the philosophy of science, all from the University of Chicago. While working on her dissertation, she studied at the Chicago Institute of Psychoanalysis. After working around hospitals and conducting classes and workshops on medical ethics for medical personnel, Petitioner decided to attend medical school. Because her educational training did not include extensive background in certain scientific areas, Petitioner was concerned with her ability to score well on the MCATS, which are the entrance examinations required by all medical schools in the United States. In addition, Petitioner's age (she was in her mid 40's at the time) was considered a negative factor by many medical schools in the United States. As a result, she inquired about attending certain foreign medical schools. She was limited in the schools that she could consider because she did not speak Spanish. Medical Education In 1979, Petitioner applied to the American University of the Caribbean (AUC). AUC taught its medical courses in English and Petitioner was only required to make up a few undergraduate science courses (including physics) in order to enroll in the medical school. Petitioner enrolled in classes at AUC in May of 1980. She actually started classes a few days after the semester began. She completed the first two semesters from May to December 1980 and then went home during the Christmas break. During the break, Petitioner learned that she had received an F in her course in neurosciences. Petitioner met with the professor from that course to discuss the failing grade she received and also met with the President of AUC. As a result of these meetings, it was her understanding that the grade was changed to a passing grade. In January of 1981, Petitioner visited CETEC (another Caribbean medical school located in the Dominican Republic,) and met with officials of the school to discuss transferring from AUC to CETEC. Petitioner applied to CETEC during her visit and, prior to leaving, was informed of her acceptance into medical school at CETEC. Petitioner returned to AUC and completed her third semester at the school. In May of 1981, she officially enrolled at CETEC by initiating clinical rotations at Sharp Hospital in San Diego, California. Even though Petitioner had only completed three semesters at AUC, she was granted status as a fifth semester medical student. She contends that she was granted this status based upon CETEC'S evaluation of her transcript and the number of hours she took at AUC. Prior to her enrollment at CETEC, Petitioner provided CETEC with a transcript indicating she had passed neurosciences at AUC and CETEC gave her credit for the course. From May 4, 1981 to June 6, 1982, Petitioner participated in clinical rotations at Sharp Memorial Hospital in San Diego, California as part of her medical education at CETEC. During this time period, Petitioner also participated in a clinical rotation at Children's Hospital in San Diego, California (from 12/28/81 to 2/20/82). Beginning in 1983, the media and some state licensing agencies began challenging the validity and/or authenticity of the credentials and training of some CETEC medical graduates. CETEC medical school was ultimately closed in 1984. The Dominican Republic government formed an agency to verify and certify the transcripts of CETEC graduates. This agency was called the "Counsel For Superior Education" also referred to by the acronym of CONES. CONES verified and certified the legitimacy of higher education credentials from all Dominican schools submitted to other countries. As part of her pending Florida Application, Petitioner has submitted a certification from CONES dated October 15, 1987 attesting to Petitioner's graduation from medical school at CETEC on June 12, 1982. Petitioner has also submitted a second certification from CONES dated July 8, 1988 confirming her graduation on June 12, 1982. Included as part of the documents submitted by Petitioner from CONES is a Certification of Clinical Rotations dated July 14, 1987 (the "CONES Report") and an academic transcript dated July 14, 1987 (the "CONES Transcript.") The "Education Commission For Foreign Medical Graduates" ("ECFMG") provides a certification of the education of applicants from foreign medical schools who seek licensure in the various United States and offers an examination required by some state licensing boards for licensure of applicants graduating from foreign medical schools. Petitioner passed the ECFMG examination and was certified by the ECFMG in 1982. However, after the CETEC scandal began in 1983, the ECFMG started an investigation of graduates of CETEC (including Petitioner) for the purpose of reverifying their medical training. The ECFMG required clearance from CONES of Petitioner's CETEC education before reverifying her ECFMG certificate. The ECFMG reinstated Petitioner's ECFMG certification on June 26, 1987. The earliest certification from CONES that has been submitted by Petitioner is dated July 14, 1987, approximately two and a half weeks after the ECMFG certification. It is not clear what the ECFMG relied upon in reissuing a certification to Petitioner. While Petitioner contends that CONES had originally certified her CETEC transcript shortly after her graduation in June of 1982, no competent evidence was presented to establish when or if an earlier CONES certification was issued. In any event, Petitioner currently holds a valid ECFMG certificate. In certifying Petitioner's medical degree from CETEC, CONES gave Petitioner credit for courses taken and work done at non-medical schools (i.e., the University of Chicago) prior to entering medical school. These credits are discussed in more detail in Findings of Fact 17. Although the ECFMG has apparently accepted CONES' certification of Petitioner's medical education at CETEC, there are several inconsistencies on the face of the CONES Report. The CONES Report states that during the period from May 4, 1981 to June 6, 1982, Petitioner completed fifty six (56) weeks of clinical rotations. However, in reaching this total the CONES Report provides one week of credit for a rotation (from 5/24/82 to 5/28/82) in obstetrics and gynecology which overlapped with another rotation (from 5/10/82 to 6/5/82) in obstetrics and gynecology. It it also provides double credit for a single two week clinical rotation (from 5/4/81 to 5/16/81) in obstetrics and gynecology. In addition, there are two periods of time (from 2/21/82 to 3/14/82 and from 4/25/82 to 5/9/82, which total approximately five (5) weeks), during which no clinical rotations were taken. Since the period between May 4, 1981 and June 6, 1982 consisted of approximately fifty seven (57) weeks, it does not appear that Petitioner actually completed fifty six (56) weeks of rotations as listed. Deleting the double credit received for the 5/4/81 to 5/16/81 clinical rotation, the CONES Report only appears to certify completion of fifty four (54 weeks) of clinical rotations. Moreover, those fifty four (54) weeks of rotations include one week of credit for five (5) days in obstetrics and gynecology (from 5/24/82 to 5/28/82) which directly overlapped a separately listed clinical rotation in obstetrics and gynecology, and one (1) week of credit for six (6) days in obstetrics and gynecology from 6/1/82 to 6/6/82. Thus, on the face of the CONES Report it appears that Petitioner actually completed only fifty three (53) weeks of rotations at most. This conclusion is bolstered by the fact that, according to the CONES Report, there were approximately five (5) weeks of the fifty-seven (57) week period during which no clinical rotations were taken. Petitioner contends that the CONES Report fails to take into account a five (5) week clerkship in family medicine which she completed at Sharp Hospital and which was accepted by the ECFMG when Petitioner applied for licensure in California. This clerkship is reflected in the CETEC Transcript even though it is not reflected in the CONES Report. It is not clear why this rotation was not included in the CONES Report However, the evidence did establish that Petitioner completed the rotation. One of the five weeks of this family medicine rotation overlaps with an OB/GYN rotation (from 5/4/82 -5/8/82). The time frame of the family medicine rotation roughly coincides with the period of time during which no rotations are reflected in the CONES Report. Thus, this rotation would only add four more weeks to the clerkship total listed on the CONES Report. Even if this four week rotation is added to the fifty three (53) weeks certified in the CONES Report, the Report would still only indicate that Petitioner completed a total of fifty seven (57) weeks of clinical rotations. According to the boiler-plate language on the CONES Report, sixty (60) to seventy-two (72) total weeks of clinical rotations had to be completed by CETEC students who took their clinical rotations outside of the Dominican Republic. Thus, the CONES Report does not reflect completion of the required weeks of clinical rotations even though CONES has issued a certification that purports to certify successful completion of the degree requirements. This discrepancy has not been adequately explained. The CONES Report does not reflect any clinical rotations by Petitioner in psychiatry. However, the CETEC Transcript does indicate that Petitioner was granted eight hours credit for her graduate studies at the University of Chicago from 1971-1973. Petitioner contends she is entitled to at least four hours of clerkship in psychiatry for those studies. However, it appears from the CONES Transcript that the credit she received was applied towards classes in Human Conduct which were a part of the curriculum during the first two years of medical school. There is no evidence to indicate that CETEC or CONES granted or should have granted Petitioner credit for clinical rotations in psychiatry based upon her graduate studies at the University of Chicago. During a three week period (between her second and third semesters at AUC) from December 20, 1980 to January 10, 1981, Petitioner participated in an OB/GYN clinical rotation at Sharp Memorial Hospital in San Diego, California (hereinafter this rotation will be referred to as the "Unsanctioned Rotation.") This rotation is usually not done until after a student completes the third semester of medical school. Petitioner's participation in this Unsanctioned Rotation was not authorized by any medical school and was not a part of any medical school program. Petitioner contends that she satisfied the required sixty (60) clerkship weeks if the Unsanctioned Rotation at Sharp Hospital from December 20, 1980 to January 10, 1981 is added to the undisputed clinical rotations and the family medicine rotation discussed in Findings of Fact 15. However, the Unsanctioned Clerkship was not accepted by CONES and Petitioner has not provided sufficient evidence to establish that it should be counted towards her required clinical rotations. Although CETEC had previously granted Petitioner credit for the neurosciences course at AUC, CONES was not able to verify that Petitioner passed the course and CONES required Petitioner to retake the course in order to obtain the 1987 certification from CONES. Petitioner attended Northwestern University during the spring quarter of 1987 and completed a four credit hour course (based on a quarter system) in neurosciences. This neurosciences course was apparently given five hours ex post facto credit by CONES to fulfill the neurosciences requirement for Petitioner's 1982 CETEC medical diploma. From December, 1987 to March, 1988, Petitioner attended Xochicalco Medical School in Ensenada, Mexico in order to take additional coursework in partial fulfillment of a requirement by the California licensing board in a stipulated agreement for additional medical training before licensure. (Petitioner's stipulation with the State of California is discussed in more detail in Findings of Fact 47-50.) The courses taken at Xochicalco were approved by the California licensing agency and included clinical pathology, pharmacology (two courses) and physiology (two courses). Petitioner successfully passed all of the courses. However, no evidence was presented as to the accreditation status of this school. Petitioner completed a five week rotation in emergency medicine at Cruze Roja Hospital in Mexico in 1988 while she was completing the remedial science classes required by the California Licensing Board. Post-Graduate Training Petitioner completed one year of post graduate training from July 1, 1982 to June 30, 1983 in the family medicine residency program at Holston Valley Community Hospital through East Tennessee State University's Quillen-Dishner College of Medicine. Petitioner has presented a certificate verifying succcessful completion of her first post graduate year of training in this program. Petitioner performed her residency at two hospitals which are part of the East Tennessee State University Quillen-Dishner College of Medicine: Kingsport Family Practice Center and Holston Valley Community Hospital. She saw patients at the Kingsport Family Practice Center for 7 months, one afternoon each week under the supervision of various physicians. The rest of Petitioner's residency was performed at the Holston Valley Community Hospital. Dr. Lee S. Hyde was the program director of the Kingsport Family Medicine Center. Petitioner's contact with Dr. Hyde was limited, but she did have several consultations with him about patients. In an evaluation submitted to the Florida Board of Medicine in connection with Petitioner's application for licensure, Dr. Hyde evaluated Petitioner's diagnostic ability and relationships with patients as poor. He also stated that Petitioner came to the program with a "poor fund of knowledge, clinical habits, and basic medical education". Although he felt Petitioner made progress during the residency program, he did not think it was sufficient. However, his overall evaluation was to recommend with reservations. Dr. Hyde's evaluation of Petitioner to the Board was received by the Board on July 18, 1983. Dr. Hyde noted on the back of the evaluation form that Petitioner was not ready to begin a second year of unsupervised practice. Petitioner was not and would not have been offered a contract for a second year in the residency program. Dr. Hyde also commented that Petitioner demonstrated poor judgment by once going "AWOL" from the program. While Petitioner did take a three (3) day leave over a weekend while assigned to a particular rotation with another physician contrary to the rules of the program, she did so with the permission of her supervisor at the time. Prior to the negative evaluation submitted by Dr. Hyde in July of 1983, Dr. Hyde had previously written a letter dated March 24, 1983 to the Florida Board of Medicine recommending Dr. Chambers for licensure stating that she was in good standing with the program and of reasonable professional competence and excellent moral character. Leslie P. Reynolds, Jr., M.D., was a professor of Family Medicine, assistant Dean, and Director of Medical Education at the Holston Valley Hospital during Petitioner's year of residency. In a June 29, 1983 evaluation form submitted to the Florida Board, Dr. Reynolds, gave an evaluation of Petitioner's performance during the family medicine residency and recommended her as an outstanding applicant. Dr. Reynolds subsequently submitted an affidavit to the Florida Board of Medicine dated October 21, 1987 attesting that Petitioner earned the respect of both her instructors and fellow residents and that the hospital's records suggest that she performed well on all her services and that she was very helpful to other residents. Several other physicians who served as clinical supervisors during Petitioner's residency at Holston Valley have submitted letters of recommendation and virtually all other evaluations of her work were positive. Aside from the letter from Dr. Hyde, (Dr. Hyde did not testify and his letter is hearsay,) no other evidence was presented to demonstrate that Petitioner is incapable of practicing medicine with reasonable skill and safety. The weight of the evidence established that Petitioner is capable of practicing with reasonable skill and safety. Numerous letters from the physicians who have worked with Petitioner over the last several years corroborate to her ability to practice medicine with reasonable skill and safety. Petitioner was employed as a house physician at Jackson Memorial Hospital in Miami from July 11, 1983 to October 31, 1983. Her position was under the supervision of the Department of Family Medicine in the Ambulatory Care Unit of the Emergency Room Department and the Family Medicine Clinical Faculty from the University of Miami. However, the position was not an advanced residency program and the nature of the supervision and training that Petitioner received has not been fully explained. Furthermore, the evidence did not establish the exact nature of her duties and functions. From October 1984 to March 1985, Petitioner participated in a series of clinical rotations at the Wesley Medical Center which is affiliated with the University of Kansas. The exact nature of Petitioner's position is not clear. The position at the Wesley Medical Center was a non-paying position during which Petitioner completed an eight week rotation in Internal Medicine, twelve weeks in General Surgery and four weeks in psychiatry functioning in each rotation at the level of a first-year resident. Petitioner was not officially enrolled as a resident in this program. However, she did receive evaluations from the attending physicians and her evaluations by the supervising physicians in that program were acceptable. In 1988, Petitioner completed an eight month internship at Universal Medical Center in Plantation, Florida Universal Medical Center is an osteopathic teaching institution. This internship was undertaken to satisfy a requirement of the California licensing authority for eight months of "remedial" clinical work. See, Findings of Fact 50. Petitioner was evaluated as performing in a competent and professional manner in this program. At the Universal Medical Center, Petitioner completed thirty three (33) weeks of clinical rotations. The program extended from March 21, 1988 through November 3, 1988. Her duties and responsibilities were similar to other interns in the program. In sum, Petitioner has successfully completed several additional science courses and completed at least thirty eight (38) additional weeks of clinical training beyond her medical school rotations and first post-graduate year residency. Those weeks of training include thirty three (33) weeks at Universal Medical Center which is an approved osteopathic medical training program that was accepted by the California Licensing Agency for purposes of Petitioner's remedial clinical work. Licensure Applications Petitioner passed the FLEX exam in June, 1982 with a score of 78. She also passed the ECFMG exam in January, of 1982 with a score of 76. In addition, she passed an oral examination administered by the California State Licensing Board in 1988. After graduating from CETEC in June 1982, Petitioner initiated efforts to obtain licensure in several states. In her initial attempts at licensure, Petitioner submitted several misleading applications which have backfired into a morass of complications and confusion. In 1982, Petitioner knowingly submitted a fraudulent application to the State of Oregon. Petitioner filed the application with the Oregon licensing authority in order to take the Federal Licensing Examination known as the FLEX. Oregon was one of the few states which allowed applicants to take the FLEX examination prior to graduation and also granted applicants some choice in the location of the exam. Petitioner took the FLEX in the Virgin Islands in June of 1982. This was the nearest location to the Dominican Republic where she was attending graduation ceremonies at CETEC around the same time. On the application to take the FLEX exam filed with Oregon, Petitioner falsely stated that she attended AUC from May, 1979 to April, 1981. She actually attended AUC from May, 1980 through April, 1981. In the early part of 1983, Petitioner submitted applications for licensure to South Carolina, California, Georgia, New Mexico, and Florida. South Carolina determined that Petitioner was not eligible for licensure in that state because she had not completed the required post-graduate training. Her application for licensure in that state was returned without action. In her applications to Georgia, California and Florida in 1983, Petitioner misrepresented her attendance at CETEC as having commenced in May, 1979 rather than reporting attendance at AUC starting in May, 1980 and ending in May, 1981 when she transferred to CETEC. Petitioner admits that she falsely stated that she began her medical education in May, 1979 on the Oregon FLEX application, as well as the California, Georgia and 1983 Florida applications. In an attempt to justify these false statements, Petitioner points out that the Dean from CETEC had issued a letter to these licensing agencies stating that Petitioner had completed eight (8) semesters at CETEC from 1979 to 1982. Petitioner claims she completed the misleading applications because she wanted her statements to be consistent with the CETEC Dean's certification of attendance. It would appear that an additional motivation for falsifying the applications was to avoid having to explain that she had received medical education credit for some of her non-medical course work at the University of Chicago approximately ten years earlier. It is unclear why the Dean's certification letters were not accurate. While no evidence was presented to directly link Petitioner to the issuance of these incorrect Dean's letters, the shady circumstances surrounding her involvement with Pedro de Mesones around this same time period (discussed in Findings of Fact 87-95 below) leads to an inference that Petitioner was at least indirectly responsible for these misleading letters. In her February 1983 application to New Mexico, Petitioner accurately stated the dates and locations of her medical school education. No adequate explanation was given as to why the correct dates were listed on this 1983 application but not the other applications filed around the same time in Georgia, Florida and California. Petitioner listed the correct dates of attendance at AUC and CETEC on her 1984 Florida application and the 1988 filing which are discussed in more detail in Findings of Fact 69-72 below. Georgia and New Mexico granted Petitioner licensure based upon the 1983 applications. California initially denied her licensure. However, as described in Findings of Fact 47-51 below, Petitioner challenged that decision. Florida permitted Petitioner to withdraw her 1983 Application rather than go to hearing on the Board's intent to deny licensure. See Findings of Fact 67-68. Petitioner's application for licensure in California was filed in the Spring of 1983. Petitioner received a letter in April of 1983 returning her application without action. Petitioner requested reconsideration of her application which, eventually, resulted in a proposed order of denial dated June 9, 1986. Petitioner requested a hearing on that proposed denial. The proposed denial was resolved without hearing by a stipulation between Petitioner and the California licensing agency in an order dated November 5, 1987 (the "California Stipulation"). The stipulated findings of fact in the November 5, 1987 California Stipulation recognize that the application filed by Petitioner in March, 1983 remained pending without action until the 1987 California Stipulation was entered. The California Stipulation notes that the proposed denial of her application in 1986 was based on the grounds that: (a) Petitioner had not listed on her application her attendance at AUC; (b) she had falsely stated under oath that she began her medical education at CETEC beginning in May, 1979; and (c) her medical education did not conform to California requirements. The California Stipulation provides that it supersedes the reasons set forth in the 1986 proposed denial so long as Dr. Chambers abides by the terms of the Stipulation. The California Stipulation makes no findings of fact or conclusions of law regarding wrongdoing on the part of the Petitioner. The California Stipulation provides that Petitioner would be issued a license to practice medicine in California upon completion of remedial medical education specified in the Stipulation, completion of an additional academic year of clinical training before September, 1990, satisfactory proof of certification by CONES, and passage of an oral examination. The California Stipulation also provides that Petitioner shall take forty (40) hours of continuing medical education within the first two (2) years of licensure in addition to the continuing education classes statutorily required for licensure in California. Petitioner was issued her license to practice medicine in California on November 11, 1988 demonstrating that she satisfied the requirements of the November 1987 California Stipulation. In her application to the State of Georgia in June of 1983, the Petitioner specifically represented that she attended CETEC from May of 1979 to April 1980, attended AUC from April, 1980 to May, 1981 and CETEC again from April 1981 through June, 1982. The Dean of CETEC certified to the Georgia licensing agency that Petitioner enrolled in the school of medicine in May, 1979 and attended eight semesters of 4.2 months each. As discussed in Findings of Fact 43, the basis for this certification by the Dean is unclear. Petitioner obtained a license to practice medicine in Georgia based on her 1983 application and did in fact practice medicine in that state from January, 1984 to August, 1984. On August 17, 1984 the Georgia State Board of Medical Examiners issued a Notice of Hearing to Petitioner setting forth charges against her including failure to meet the standards for licensure and/or intentionally making false statements in obtaining a license to practice medicine. The charges also included an allegation that Petitioner "was denied a license by the Board of Medical Quality Assurance of the State of California based on evidence of making false statements on a sworn application and submitting false and/or inaccurate certificates of education to obtain a license to practice in that state." In fact, in 1984 the California licensing authority had not formally denied Petitioner's application for licensure. The proposed denial of Petitioner's California application was pending, but not acted upon. Indeed, a formal denial of her California application was never finalized. Instead, the issues were resolved by the California Stipulation in November, 1987. On September 22, 1984, Petitioner executed a "Voluntary Surrender" which was approved by the Georgia State Board of Medical Examiners and served as the final order of that agency with respect to the Notice of Hearing discussed in Findings of Fact 54. By voluntarily surrendering her license to practice medicine in Georgia, Petitioner waived her right to a hearing on the charges contained in the Notice of Hearing. The first paragraph of the "Voluntary Surrender" states: "I hereby acknowledge that this surrender shall have the same effect as revocation of my license, and I knowingly forfeit and relinquish all right, title and privilege of practicing medicine in the State of Georgia, unless and until such time as my license may be reinstated, in the sole discretion of the Board." Notwithstanding this language, Petitioner contends the "Voluntary Surrender" should be distinguished from a revocation because she did not admit to any wrongdoing and because she was allowed to seek reinstatement upon application and demonstration of the ability to safely practice medicine. The Voluntary Surrender of the Georgia license contains no specific findings of fact or conclusions of law that establish any wrongdoing on the part of the Petitioner. The "Voluntary Surrender" states that Petitioner did not admit to any wrongdoing and it allows Petitioner to seek reinstatement. The Executive Director of the Composite State Board of Medical Examiners of Georgia certified to the Florida Board of Medicine on August 2, 1988, that Petitioner's Georgia license had been issued in 8/83, surrendered in 9/84 and that license had not been "suspended or revoked." Thus, while disciplinary action was clearly initiated against Respondent in Georgia, her license was not revoked. Petitioner was licensed to practice medicine in the State of New Mexico in November, 1983. On January 10, 1985, the New Mexico Board of Medical Examiners served on Petitioner a Notice of Contemplated Action notifying her of charges including having made misrepresentations in applying for and procuring a license to practice medicine in New Mexico and having her license in Georgia revoked. The New Mexico case was referred to a hearing officer who considered argument and briefs by the parties regarding the nature and effect of Petitioner's surrender of her Georgia license. By an order of the New Mexico State Board of Medical Examiners, Petitioner's New Mexico medical license was revoked in January, 1986. The New Mexico order of revocation treated Petitioner's voluntary surrender of her Georgia medical license as the functional equivalent of a revocation for purposes of the New Mexico licensing statute. In reaching this determination, the New Mexico Board relied upon the wording of the Voluntary Surrender and the Georgia Statutes which both indicate that a voluntary surrender shall have the same effect as revocation. No other specific grounds were cited by the New Mexico Board in its Findings of Fact and Conclusions of Law, Decision and Order. As indicated above, Petitioner's initial application to the Florida Board of Medicine (the "Board") for licensure was filed March, 1983. When the Board proposed denial, Petitioner requested a formal hearing. Prior to hearing, the Board obtained leave from the hearing officer to amend the basis for denial to include grounds relating to information presented to the Board by U.S. Postal Service investigators regarding Petitioner's truthfulness on her application form and the validity of certain documents she utilized in her attempt to obtain a Florida medical license. The Board was granted leave to amend as requested by order dated February 20, 1984. Shortly thereafter, Petitioner filed with the hearing officer a motion to withdraw her application because of the new information presented from the "federal investigation." The Board granted the request to withdraw the 1983 Application in an order rendered May 29, 1984. The Board's proposed denial of Petitioner's 1983 Application was on the basis that the Board had reason to believe that Petitioner, "as a graduate of CETEC, was not capable of safely engaging in the practice of medicine as a result of a report of the California Board of Medical Quality Assurance which indicated gross irregularities in the degree granting process of CETEC University and which raised serious doubts about the adequacy of medical education certified by CETEC." Petitioner filed with the Board a second application for licensure in Florida in December of 1984 (hereinafter referred to as the 1984 Application.) In response to a request for additional information from the Board regarding this second application, Petitioner executed a waiver of the requirement that the Board act upon the application within 90 days. As a result, the 1984 Application was left pending. The 1984 Application was for licensure by endorsement based upon Petitioner's license in New Mexico. As discussed in Findings of Fact 62-66, action was initiated against that New Mexico license in January, 1985 ultimately leading to the revocation of the license in January, 1986. After her New Mexico license was revoked, Petitioner did not hold a valid license to practice medicine in any other state until California issued her a license in November, 1988. On August 1, 1988, Petitioner filed another application with the Board as an update to the 1984 Application. (This August 1988 application is referred to as the "1988 Filing.") In her 1988 Filing, Petitioner included a recertification from ECFMG. At the time she filed her 1984 Florida application, Petitioner's original ECFMG certification had been placed on hold because of the CETEC scandal. Petitioner was required to provide a revalidation of her medical education by ECFMG in order to obtain consideration of her application in Florida. This revalidation was not provided until the 1988 Filing. On September 12, 1988, Petitioner filed a supplement to the 1988 Filing. On November 2, 1988 the Board requested additional information relating to the application. On December 12, 1988 Petitioner filed a response to this request. The Board issued an Order of Intent to Deny on March 3, 1989 stating as grounds for denial in Paragraph 2: You have had licenses in Georgia, New Mexico and California acted against by the licensing bodies of those states. See, Subsections 458.331(1)(b) and 458.311(1)(d), Florida Statutes (1988). The only year of training you received was in 1982-1983 at Holston Valley Community Hospital and the Kingsport Family Practice Center through the auspices of East Tennessee State University Quillen-Dishner College of Medicine. You were recommended less than favorably by both hospitals and you were not permitted to return for a second year of residency training by the College of Medicine. Your poor performance in your only year of medical training evidences your inability to practice medicine with reasonable skill and safety. See, Sections 458.301 and 458.331(4), Florida Statutes (1988). There are material discrepancies between answers and information provided in your 3 different applications and supporting documents submitted to the Board; and you have provided fraudulent information and misrepresented or concealed information regarding your medical education. See Subsections 458.311(1)(c) and 458.331(1)(a) and (hh), Florida Statutes (1988). Inconsistencies in the Application There are several discrepancies between Petitioner's 1983 Florida Application, her 1984 Application, and her 1988 Filing. On the 1984 Application, Petitioner reported her participation in the Unsanctioned Rotation at Sharp Memorial Hospital from December 20, 1980 to January 10, 1981 as part of her clinical clerkships. The Unsanctioned Rotation is not listed on the 1988 Filing. Petitioner contends that it was not until after submission of the 1984 Application that she found out that CONES refused to recognize the clerkships taken in 1980 because Petitioner was not enrolled as a student at CETEC at the time. Therefore, Petitioner deleted those unapproved clerkship weeks from the 1988 Filing. However, while specific reference to the clerkship was deleted in 1988, Petitioner admitted at the hearing that she counted the Unsanctioned Rotation as part of sixty (60) weeks of clerkships claimed in the 1988 Filing. The 1988 Filing states Petitioner completed sixty (60) weeks of clinical clerkships as part of her medical education at CETEC. However, as discussed in Findings of Fact 13 through 18, Petitioner's submitted a CONES verification of clinical rotations that only details fifty six (56) weeks (including duplicate and overlapping credit) of clinical clerkships. In the 1988 Filing, Petitioner did report the actions taken against her medical licenses in Georgia and New Mexico and mentioned her problems obtaining licensure in California. On the 1984 Application, Petitioner responded to the question "Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct?" by stating "after my voluntary surrender, notice of hearing in Georgia, [sic] charging denial and Flafalse documents re licensure (both false)." Both the Notice of Hearing and the Voluntary Surrender in Georgia were issued prior to the completion of Petitioner's 1984 Florida Application. Thus, while Petitioner did disclose the voluntary surrender, she only provided a brief and somewhat misleading explaination. The 1984 Application does not mention Petitioner's application in South Carolina (which was returned without action) nor does it discuss Petitioner's licensure difficulties in California other than to say she had been denied a license because of "informal deficiencies." The 1984 Application also omits Petitioner's licensure problems in New Mexico which is understandable since the Notice of Contemplated Action in that case was not filed until January, 1985. The application form requires the applicant to list all universities or colleges where the applicant "took classes/received training." Petitioner listed her training at the University of Kansas, Wesley Medical Center under the medical education section of her 1984 Application. In the 1984 application, she refers to it as a "externship". That position is also listed in the medical education section of the 1988 Filing with an explanation indicating that she was not actually a resident. As discussed in Findings of Fact 30, her position at the Wesley Medical Center is not easily described due to the unusual circumstances that led to her participating in the program. She was repeating clerkships in certain areas in accordance with the stipulation reached with the California licensing agency. Although Petitioner was not officially enrolled in classes or a residency program in that position, she considers it as part of her medical education and training and, therefore, listed it as such. In her 1984 Application, Petitioner listed time spent at Jackson Memorial Hospital (University of Miami) and Wesley Medical Center (Unversity of Kansas) on a sheet entitled graduate and post-graduate education. On her 1988 Filing, she listed both positions as post-graduate training. Both of these positions were actually house staff positions rather than part of the training programs of the affiliated medical schools. In the 1984 Application, Petitioner listed her dates of training at the Wesley Medical Center as October, 1984 to April 1985 (which was her projected completion date.) The 1984 Application was filled out and filed with the Board in December 1984, four months prior to the projected completion date of the Wesley position. In the 1988 Filing, Petitioner listed her actual completion date of March, 1985, which was approximately two weeks earlier than the projected completion date referred to in the 1984 Application. From January 1984 to August 1984, Petitioner worked for Spectrum Emergency Care in emergency rooms and free-standing clinics in Georgia. Petitioner listed different dates of service with Spectrum on the 1984 Application and the 1988 Filing. Petitioner contends the differences are due in part because the 1988 Filing included employment at Spectrum in New Mexico in December 1984 and January 1985 after submission of the 1984 Application. However, the 1988 Filing states that Petitioner was continuously employed by Spectrum from January 1984 - January 1985. In fact, she was not employed during the months of August, September, October and November, 1984. Moreover, her employment with Spectrum in New Mexico in December, 1984 and January, 1985 overlaps with her "externship" at the Wesley Medical Center/University of Kansas which took place from October, 1984 through March, 1985. Apparently, this overlap was possible because her work for Spectrum in December, 1984 consisted of one weekend and a holiday and in January, 1985 consisted of one weekend. In sum, the 1988 Filing significantly overstates her actual experience with Spectrum. The 1988 Filing contains several inconsistent statements regarding Petitioner's employment as a ship's physician. Under the practice/employment section of that Filing, she states she was a ship's physician for SeaEscape from April, 1985 to September, 1985 and a ship's physician for Commodore Cruise Lines from February, 1986 to September, 1986. Later in the application, under postgraduate medical training and work experience, she states she was a Chief Medical Officer for cruise ships from April, 1985, through September, 1986. However, according to the previously cited information, for at least a four month period during that time frame, she was not employed. In another portion of her application, Petitioner lists under clinical medicine that she worked on the two ships from April, 1985 through September, 1987. Even assuming that there is a typographical error and Petitioner meant September, 1986 as indicated in the other listings, by deleting any reference to the four months that she was not employed, an impression is created that Petitioner has more clinical experience than was actually true. There is a conflict between the AUC transcript that Petitioner submitted with the 1988 Filing and earlier versions of the transcript that appear in her records. The course titles are consistent in the transcripts, but the numbers of some of the courses are different. Only the last digit of the course numbers are different. Whether a course is listed in the 100 series, 200 series and 300 series is consistent in all of the transcripts. The series numbers reflect first semester, second semester and third semester courses respectively. The AUC transcript submitted with the 1988 Filing was the most recent one obtained by Petitioner from AUC. That transcript was prepared in June, 1986 and reflects a failing grade in the neurosciences course. However, as discussed in Finding of Fact 4, that grade was changed to a passing grade as reflected in a 1981 transcript from AUC which was submitted to CETEC when Petitioner transferred to that school. No adequate explanation has been given to explain why the 1986 AUC transcript is not consistent with the earlier one. Postal Investigation The confusing circumstances surrounding Petitioner's medical education are further complicated by her involvement with Pedro de Mesones. The circumstances surrounding her involvement with Pedro de Mesones have not been fully explained. While Pedro de Mesones' exact status or position is unclear, Petitioner believed him to be a representative of CETEC. He has subsequently been convicted of mail fraud in connection with selling medical diplomas and has been sentenced to a federal prison term. Between July, 1981 and January, 1982, while Petitioner was conducting her clinical rotations in San Diego, she attempted to get information and documentation from CETEC, but she had trouble getting responses to her repeated telephone calls, letters and telegrams. Petitioner sought the help of Pedro de Mesones in getting cooperation and/or responses from CETEC regarding transcripts and other documents necessary for the loan applications and residency applications which she had to file prior to her anticipated medical school graduation date of June, 1982. Another reason Petitioner hired Pedro de Mesones was to get confirmation that CETEC would give her credit towards her medical degree for her prior work on her Ph.D. at the University of Chicago. These credits were necessary for Petitioner to graduate in June of 1982 as she anticiapted. Petitioner was advised by others familiar with the school that Pedro de Mesones could help her in her dealings with CETEC. She first contacted Pedro de Mesones by telephone in February, 1982. She agreed to pay him a total of more than $8,000 for his services. Petitioner explains her payments to Pedro de Mesones as a $3000 fee, plus the next two (2) semester's tuition payments totaling an additional $5000.00 plus a $100.00 graduation fee. Pedro de Mesones advised Petitioner that she had to pay CETEC's tuition totalling $5,000 for two (2) additional semesters even though she did not have to take any classes at CETEC because she was given credit for her work at the University of Chicago. At one point during her dealings with Pedro de Mesones, Petitioner signed a false transcript from a Mexican medical school at Pedro de Mesones' request. This transcript reflected work which Petitioner never completed. No adequate explanation was given as to why these false transcripts were ever prepared. While Petitioner contends that she asked Pedro de Mesones not to use the false Mexican transcript for any purpose, it appears that these transcripts were prepared in the event that Petitioner could not secure two semesters credit from CETEC for her Ph.D. work at the University of Chicago. Ultimately, CETEC decided to give her credit for some of the Ph.D. course work she completed at the University of Chicago. As a result, Petitioner was able to graduate in June of 1982 from CETEC without having to use the false Mexican transcripts. It does not appear that the fraudulent Mexican transcript were ever used by Petitioner in any of her applications. Petitioner provided Pedro de Mesones with two false transcripts regarding her AUC medical education. It is clear that she intended for him to use those transcripts, if necessary, to get a dean's certification from CETEC. One of the false AUC transcripts she prepared made its way into the records of CETEC. It is not clear how CETEC obtained that transcript. Because Petitioner was given credit for her graduate work at the University of Chicago, she did not need the extra credits reflected on the false AUC transcripts. Petitioner subsequently wrote the Dean of CETEC requesting removal of the false AUC transcript after she saw it in her CETEC records during a visit to CETEC to obtain a letter from the Dean showing her to be in good standing. Petitioner asked Pedro de Mesones to provide her with letters signed by the CETEC Dean showing her to be in good standing and on track for graduation in June, 1982. She intended to use these letters in applying for licensure for residency programs. Petitioner felt that she was on track to graduate and indicated to Pedro de Mesones that because of time pressures, she felt it would be acceptable for him to forge the signature of the Dean on the letters required by the various state licensing agencies. However, there is no indication that he did so. While none of the false transcripts prepared by Petitioner were directly submitted by her in any of the applications for licensure filed with any state licensing authorities, it is clear the Dean's certification letters included in Petitioner's 1983 Applications in some of the states were false. See Findings of Fact 39-44. No direct connection has been drawn between the false Dean's certification letters submitted with Petitioner's applications in Georgia and California and Pedro de Mesones. However, the circumstances surrounding Petitioner's dealings with Pedro de Mesones raise a question as to how the certifications were obtained. More importantly, it is clear that Petitioner was aware that the representations contained in the Dean's certifications and the dates of attendance at medical school listed on her 1983 Applications were false. Nevertheless, she still submitted the applications. Petitioner's dealings with Pedro de Mesones ended on June 14, 1982, two days after her graduation ceremonies at CETEC. Practice Experience Petitioner has at various times practiced medicine in Georgia and New Mexico prior to surrendering or losing her license in those states. She has also worked on cruise ships as a ship's doctor for several months. She is currently licensed and practicing in California. She has been licensed in that state since November, 1988. She has practiced emergency medicine at various hospitals and has been practicing as a primary care physician for Castle Air Force Base in California since December 1988. There is no indication that she has been deficient in carrying our her professional duties in any of these positions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medical Examiners enter a Final Order granting Petitioner's application for licensure as a physician in the State of Florida subject to a probationary period of two years upon such terms and conditions as the Board deems appropriate. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of July, 1990. J. STEPHEN MENTON 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 2nd day of July, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 37, 46-50 and 67. 2. Aubored in substance in Findings of Fact 67 and 68. 3. Adopted in substance in Findings of Fact 69. 4. Adopted in substance in Findings of Fact 70. 5. Adopted in substance in Findings of Fact 71. 6. Adopted in substance in Findings of Fact 72. Adopted in substance in the preliminary statement. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2-4 and 6. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6. Suborindate to Findings of Fact 6 and 8. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11 and 33. Subordinate to Findings of Fact 87. Subordinate to Findings of Fact 87 and 88. Subordinate to Findings of Fact 88. Subordinate to Findings of Fact 89. Subordinate to Findings of Fact 90-94. The first sentence is rejected as constituting argument. The second sentence is subordinate to Findings of Fact 94. Adopted in substance in Findings of Fact 95. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Adopted in substance in Findings of Fact 36. Subordinate to Findings of Fact 36 and 39- 42. Adopted in substance in Findings of Fact 45. The first sentence is adopted in Findings of Fact 87. The remainder is rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 47-66. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 51. Adopted in substance in Findings of Fact 49. Subordinate to Findings of Fact 54. Adopted in substance in Findings of Fact 55. Subordinate to Findings of Fact 57, 59-60. Subordinate to Findings of Fact 58. Suborindate to Findings of Fact 61. Adopted in substance in Findings of Fact 59. Subordinate to Findings of Fact 62-66. Subordinate to Findings of Fact 66. Subordinate to Findings of Fact 66. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 20-30. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 22 and 27. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 24. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 25-26. Adopted in substance in Findings of Fact 27. Subordinate to Findings of Fact 24 and 25. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 74. See proposed findings 26-30 above. Subordinate to Findings of Fact 79-80. Subordinate to Findings of Fact 81. Subordinate to Findings of Fact 82-83. Subordinate to Findings of Fact 38. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 83. Subordinate to Findings of Fact 77. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 84. Addressed in Findings of Fact 12-18. Rejected as irrelevant. Subordinate to Findings of Fact 12-19. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Subordinate to Findings of Fact 9 and 13. Subordinate to Findings of Fact 13 and 14. Subordinate to Findings of Fact 16. Subordinate to Findings of Fact 18. Subordinate to indings of Fact 35. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 44. Subordinate to Fndings of Fact 46-52 and 67- 68. Adopted in substance in Findings of Fact 69. Subordinate to Findings of Fact 78. Subordinate to Findings of 78. Subordinate to Findings of Fact 76. Adopted in substance in Findings of Fact 70. Subordinate to Findings of Fact 76, 77 and 78. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of 72. 26. Adopted in substance in the preliminary statement. 27. Adopted in substance in Findings of Fact 73. 28. Adopted in substance in Findings of Fact 73. 29. Adopted in substance in Findings of Fact 54. 30. Adopted in substance in Findings of Fact 56. 31. Adopted in substance in Findings of Fact 78. 32. Adopted in substance in Findings of Fact 63. 33. Adopted in substance in Findings of Fact 65. Subordinate to Findings of Fact 47-51. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 24-26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 25. Subordinate to Findings of Fact 31 and 79- 81. Subordinate to Findings of Fact 29. Adopted in substance in Findings of Fact 12 and 17. Adopted in substance in Findings of Fact 19. Subordinate to Findings of Fact 87-95. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 97. Subordinate to Findings of Fact 87-95. Rejected as not supported by competent substantial evidence. Adopted in substance in Findings of Fact 40. Rejected as not supported by competent substantial evidence. Subordinate to Findings of Fact 47-68. Rejected as constituting argument. Rejected as constituting argument. Copies furnished: Paul Watson Lambert, Esquire Attorney at Law 1355 Mahan Drive P. O. Box 31 Tallahassee, Florida 32308 Allen R. Grossman, Esquire Assistant Attorney General Suite 1602 - The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the Respondent properly denied the Petitioner’s request to be a “recognizing agency” within the parameters of Rule 59R-11.001, Florida Administrative Code.
Findings Of Fact Chelation therapy is the introduction of a man-made amino acid into a patient’s vein. It has been approved by the U.S. Food and Drug Administration and is used for the treatment of heavy medal toxicity and the removal of lead. American Board of Chelation Therapy (ABCT) is an autonomous organization that provides education and certification to any physician who wishes to become knowledgeable in Chelation therapy. ABCT was established in 1982 for the purpose of establishing the criteria necessary for certification in the area of Chelation therapy. The Board of Medicine is a statutory entity, established by Chapter 458, Florida Statutes, as the primary regulatory authority for the practice of allopathic medicine in the State of Florida. Pursuant to section 458.301, Florida Statutes, the legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The section further provides that the primary legislative purpose in enacting the medical practices act is to “ensure that every physician practicing in this state meets minimum requirements for safe practice.” In keeping with the legislative mandate to ensure that purpose of the medical practices act, the legislature created the Board of Medicine and authorized the Board to create administrative rules for the purpose of implementing chapter 458. Rule 59R-11.001, Florida Administrative Code, is the advertising rule of the Board of Medicine.3 The rule codifies provisions of section 458.331(1)(d), Florida Statutes, and provides criteria for identifying false, deceptive, or misleading advertising. In particular, the rule governs advertising on physician letterhead and limits the use of the term “specialist” unless the specialty is recognized by (1) a specialty board of the American Board of Medical Specialties (ABMS) or (2) a board that meets the requirements of Rule 59R-11.001, Florida Administrative Code. For those specialties recognized by organizations that do not meet the requirements of the rule, the physicians may still advertise their specialty so long as they provide a disclaimer. By rule the disclaimer must state the following “The Specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Medicine.” ABMS is generally recognized in the United States as the agency that approves allopathic medical specialty boards and the Board of Medicine has historically relied upon ABMS and its standards and, as reflected in the current rule, continues to rely on ABMS and its standards for approving recognizing agencies. On July 17, 1995, the Petitioner, ABCT submitted an application to Florida Board of Medicine for the purpose of being certified as a “recognizing agency” pursuant to rule 59R-11.001. ABCT is not a specialty board of the ABMS. Because ABCT is not a member board of the ABMS, the Board of Medicine looked to the requirements of rule 59R- 11.001(2)(f) to determine whether ABCT met the criteria enunciated in the rule and whether it is therefore a “recognizing agency” capable of bestowing specialty status on a physician. Rule 59R-11.001(2)(f), Florida Administrative Code, provides that non-ABMS Boards may seek recognition as “recognizing agencies” if they meet the following criteria: The recognizing agency must be an independent body that certifies members as having advanced qualifications in a particular allopathic medical specialty through peer review demonstrations of competence in the specialty being recognized. Specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada that includes substantial and identifiable training in the allopathic specialty being recognized. Specialty recognition must require successful completion of a comprehensive examination administered by the recognizing agency pursuant to written procedures that ensure adequate security and appropriate grading standards. The recognizing agency, if it is not an ABMS board, must require as part of its certification requirement that each member receiving certification be currently certified by a specialty board of the ABMS. The recognizing agency must have been determined by the Internal Revenue Service of the United States to be a legitimate not for profit entity pursuant to Section 501 (c) of the Internal Revenue Code. The recognizing agency must have full time administrative staff, housed in dedicated office space which is appropriate for the agency’s program and sufficient for responding to consumer or regulatory inquiries. The recognizing agency must have written by-laws, and a code of ethics to guide the practice of its members and an internal review and control process including budgetary practices, to ensure effective utilization of resources. However, a physician may indicate the service offered and may state that practice is limited to one or more types of services when this is in fact the case; On April 15, 1996, the Board of Medicine issued an order denying the ABCT’s application for specialty status. As basis for the denial, the order stated that the application of the ABCT failed to establish compliance with the requirements for approval as set forth in Rule 59R-11.001(2)(f), Florida Administrative Code. Specifically, the order stated: The requirements for diplomat status in ABCT do not require advanced qualifications in a particular allopathic medicine specialty; specialty recognition given by ABCT does not require completion of an allopathic medical residency program approved by the ACGME or the Royal College of Physicians and Surgeons of Canada that include substantial and identifiable training in the allopathic specialty being recognized; specialty recognition provided by the ABCT does not require successful completion of a comprehensive examination pursuant to written procedures that ensure adequate security and appropriate grading standards in that ABCT requires only a score of 60% to pass the examination, the examination consists of true false questions and answers, and the examination is not a medically comprehensive examination; ABCT is not an ABMS board and does not require that each member it certifies be currently certified by an ABMS board; and ABCT has not provided evidence that it is a legitimate not-for-profit entity pursuant to Section 501(c) of the Internal Revenue Code as determined by the Internal Revenue Service. Each of the requirements of rule 59R-11.001(2)(f) were addressed at the administrative hearing. With regard to criteria (1) of rule 59R-11.001(2)(f), advanced qualifications in a particular allopathic medical specialty through peer review, the ABCT does not require an advanced qualification in a particular allopathic medical specialty. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(1). Criteria (2) of rule 59R-11.001(2)(f) provides that the specialty recognition must require completion of an allopathic medical residency program approved by either the Accreditation Council of Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada. The ACGME is generally recognized as the organization that sets criteria for graduate medical education in the United States. The Board of Medicine has incorporated that recognition in the rule by requiring that the advanced education component of the rule be ACGME approved. The Royal College of Physicians and Surgeons of Canada is ACGME’s counterpart in Canada. With regard to criteria (2) of rule 59R-11.001(2)(f), ABCT does not require completion of an allopathic residency program approved by either the ACGME or the Royal College of Physicians and Surgeons of Canada. In fact, ABCT has no requirement for a residency program. ABCT reasoned that a there is no need for a residency program for Chelation therapists because Chelation therapy does not require overnight hospital stay. The only requirement remotely relating to residency is an ABCT requirement that applicants for diplomat status administer a minimum of 1000 Chelation treatments. There is no requirement that these treatments be supervised and no requirement for verification that the minimum number of treatments were administered. With regard to criteria (3) of rule 59R-11.001(2)(f), requiring successful completion of a comprehensive examination, ABCT does not require all applicants for diplomat status to complete a written examination in order to obtain certification. Specifically, some candidates are grandfathered in without being required to complete the written examination. For those applicants that are required to submit to an examination, Dr. Arthur L. Koch testified that the examination is composed of approximately sixty percent true/false questions. In addition, Dr. Koch testified that another ten percent of the test is not medically oriented but rather addresses the history and politics of Chelation therapy in the United States. At the hearing, ABCT submitted its Spring 1994 examination as an exhibit. That examination contained a majority true/false questions and a few multiple choice questions. To pass the ABCT diplomat examination, the candidate is required to achieve a score of 62.5 percent. In contrast, the Board of Medicine generally requires a passing score of at least 75%. The Board of Medicine expressed concern about the low passing score accepted by ABCT on its certification examination. The Board of Medicine also expressed concern over the large number of true/false questions used in the example examination submitted by ABCT. Uncontroverted testimony was presented at the hearing to support a finding that an examination consisting of a majority of true/false questions is not a viable method of testing knowledge. With regard to criteria (4) of rule 59R-11.001(2)(f), requiring members of non-ABMS boards to also be certified by a specialty board of the ABMS, the ABCT does not require that each physician seeking diplomat status be currently certified by an ABMS specialty board. Furthermore, ABCT admitted that it does not meet the requirement of rule 59R-11.001(2)(f)(4). With regard to criteria (5) of rule 59R-11.001(2)(f), that the recognizing agency must be a legitimate not for profit entity under the Internal Revenue Code, evidence was presented to verify that ABCT is a non-profit, tax-exempt organization. With regard to criteria (6) of rule 59R-11.001(2)(f), requiring the recognizing agency to have full-time administrative staff sufficient to respond to consumer or regulatory inquiries, no evidence was presented at the hearing relating to this criteria. With regard to criteria (7) of rule 59R-11.001(2)(f), requiring the recognizing agency to have written by-laws and a code of ethics to guide the practice of its members, ABCT submitted its Constitution and Bylaws as adopted in March of 1982 and subsequently amended. The Constitution and bylaws, however, did not include a written code of ethics and therefore did not fully comply with the requirements of the rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that in Case No. 96-3173, the Board of Medicine enter a Final Order denying ABCT’s application for approval as a “recognizing agency” pursuant to Rule 59R-11.001, Florida Administrative Code.DONE and ENTERED this 5th day of June, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1997.
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 filed an application for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, a special avenue of certification as a physician assistant for graduates of foreign medical schools. In furtherance of that application, he appeared before the Physician Assistant Committee of the Board of Medicine. Subsequent to his appearance before that Committee, on August 13, 1992, Respondent sent Petitioner a letter which provides, in pertinent part, as follows: This is to advise that your application for issuance of a temporary certification with the requirement that prior to issuance of temporary certificate you submit within 30 days of date of appearance, a new corrected and complete application to be reviewed by the Board staff. Please complete the enclosed application. You will be required, as a condition to take the examination, 2 new personalized letters of recommendation, specifically recommending you as a physician assistant. The letter did not enclose an application form for Petitioner to complete. Respondent admits that the information in the letter was incorrect because it confused temporary certification with the requirements for examination. It is apparent that the letter is also incorrect because it fails to advise Petitioner if his application was being granted or denied; moreover, the wording of the letter makes no sense. By Order dated August 26, 1992, the Board of Medicine notified Petitioner that his application for temporary certification as a physician assistant was denied pursuant to the Committee's August 1 determination and the Board's August 9 determination that the length of time since Petitioner had last worked in the field of medicine or received significant medical education or training precluded him from being able to establish that he could practice as a physician assistant with reasonable skill and safety to the public. That Order further advised Petitioner, however, that the Board had granted Petitioner's application to sit for the certification examination pursuant to Section 458.347(7)(b), Florida Statutes, because Petitioner was eligible to take the examination to become certified as a physician assistant and that passage of the examination would serve to establish Petitioner's qualifications for practice. The Order specifically provided that the Board's permission for Petitioner to sit for the certification examination was "contingent upon and subsequent to receipt within 30 days" of Petitioner's appearance before the Physician Assistant Committee of (1) a complete and correct application and (2) two more letters of recommendation which specifically recommend Petitioner as a physician assistant. It would have been difficult for Petitioner to timely comply with the Order entered August 26 requiring him to file documents within 30 days of his August 1 appearance before the Committee. By letter dated August 31, 1992, Petitioner requested an extension of one week by which to obtain the second letter of recommendation due to the devastation produced by Hurricane Andrew and Petitioner's inability to communicate with the doctor who would sign it. Petitioner did, however, submit another application which was postmarked August 31, 1992, and received by Respondent early in September. At hearing, Respondent advised that it was waiving the 30-day deadline contained in the August 26, 1992, Order due to the intervention of Hurricane Andrew and because Respondent had not strictly enforced such deadlines as to other applicants. Rather, Respondent simply required that Petitioner comply with its Order within a reasonable period of time. By letter dated December 21, 1992, Respondent advised Petitioner that his application was incomplete because the Board had only received Petitioner's new application, one letter of recommendation, and Petitioner's request for an extension of time for submittal of the second letter. The letter further advised that the Board's staff's review of Petitioner's recent application had revealed some discrepancies requiring an explanation by Petitioner. The letter, therefore, advised Petitioner to submit one more recommendation letter, provide an explanation for six specified areas, and submit pages 8 and 9 of the application regarding Petitioner's clerkships. The letter further advised Petitioner that all information must be received by the Board no later than December 31, 1992. On January 20, 1993, Respondent received an undated letter from Petitioner referencing Respondent's December 21, 1992, letter which was received by Petitioner on December 30. Petitioner's letter enclosed the additional letter of recommendation requested by the Board, responded specifically to the six areas of inquiry, and enclosed pages 8 and 9 of the Board's application form. On January 20, 1993, the Board received a letter from Dr. Jose M. Bermudez, recommending Petitioner as a physician assistant. On January 28, 1993, the Board sent Petitioner a letter advising him that the Board had received the letter of recommendation from Dr. Bermudez and pages 8 and 9 of the application. That letter further provided as follows: However, the Physician Assistant Committee required you to submit a new complete and accurate application, and two (2) additional letters of recommendation which specifically recommend you as a physician assistant. Enclosed you will find a complete physician assistant application. Please fill the application out in its entirety and submit it to the Board of Medicine as soon as possible. In compliance with that request, Petitioner submitted yet another application for certification as a physician assistant, which was received by the Board on February 8, 1993. On February 24, 1993, the Board of Medicine entered its Order denying Petitioner's application for certification as a physician assistant. The Order recited that the denial was based upon the determination made by the Physician Assistant Committee on January 8 and by the Board on January 13 because Petitioner "failed to submit a new and complete and accurate application and one new personalized letter of recommendation within the time frame allotted by the Board." That Order does not mention Petitioner's application to sit for the certification examination, the issue pending before the Board, since the Board had already denied Petitioner's application for certification by Order entered August 26, 1992. That February Order also advised Petitioner of his right to request an administrative hearing regarding the Board's determination. On February 26, 1993, the Board's staff sent Petitioner a letter advising him that he had been certified by the Board to take the examination for licensure as a physician assistant to be administered in September, 1993. On March 10, 1993, the staff sent Petitioner a letter acknowledging Petitioner's "request for a hearing on the denial of your application for certification as a physician assistant," and advising Petitioner that the February letter advising him that he had been certified to take the examination for licensure as a physician assistant had been sent to Petitioner in error. A "corrected" letter was enclosed. That "corrected" letter dated March 10 advised Petitioner that the Board had preliminarily denied him certification to take the examination for licensure as a physician assistant. By letter dated March 18, 1993, the Board's staff sent an additional letter to Petitioner advising Petitioner as to the correct dates for the examination. In applying for temporary certification as a physician assistant and/or to sit for the certification examination, Petitioner has filed an additional application each time he has been instructed to do so by the Board or by the Board's staff and has submitted a letter explaining the information given in his applications each time that the Board's staff has requested that he do so. Petitioner has filed at least three such applications and has responded by letter to inquiries regarding the contents of his applications at least three times. Additionally, Petitioner has personally appeared before the Physician Assistant Committee on August 1, 1992, to be questioned regarding his qualifications. The Board has discovered some "discrepancies" or omissions in analyzing those various documents. Petitioner's August application states that the ending date for medical school, assumedly the date he received his degree, was February 25, 1965. That date appears in three places. Further, the copy of his diploma submitted to the Board reflects that date. Yet, the December 21, 1992, form from the Board to Petitioner advises him that he must explain his ending date for medical school. In response to that indication that he must provide different information, Petitioner's letter received by the Board on January 20, 1993, states that the ending date for medical school was February 29, 1962. At hearing, Petitioner explained that he attempted to differentiate between the date he completed classes and the date he completed all requirements, including internships, in order to receive his diploma. The information contained in Petitioner's application is correct. The August application contains an answer in the negative to question numbered 9 asking Petitioner if he is or has ever been emotionally or mentally ill. Although Petitioner's subsequent February 1993 application contains no answer to that question, the Board did not have before it the February application when it decided in January to deny Petitioner's application. Even so, Petitioner had no intention to be incomplete or inaccurate when he failed to answer that question on the February application. In his August application Petitioner does not list the completion of any social service work in either section inquiring about post-graduate training or practice employment. In an application that Petitioner filed in 1985 requesting licensure as a physician, Petitioner had specifically detailed the social service work performed by him as part of his medical school training. In that application he listed the dates as January 1, 1963 to December 31, 1963. The letter Petitioner wrote to the Board in response to its December 1992 request for a better explanation states that his social service work was done between March 1, 1963 and September 30, 1963. There is no dispute regarding whether Petitioner did in fact complete his social service work requirement as part of his education in order to receive his diploma, and it is clear that such work was done in 1963. Although there is a discrepancy regarding which months during 1963 he did his social work, the discrepancy as to the months during which Petitioner did something 30 years ago does not make his application inaccurate. In fact, the August application may be more accurate than the 1985 application form. The August application required Petitioner to list in chronological order from the date of graduation to the present all practice experience and/or employment. Petitioner advised that from February 28, 1970, to April 30, 1976, he was in private practice in Nicaragua. The Board's December 1992 letter asked for clarification because a prior application indicated additional activity. Petitioner's response letter advised that he was also in pediatric practice at the General Hospital of Managua from 1970 to 1972. His 1985 application did not mention the pediatric practice at General Hospital. At final hearing, Petitioner explained that he was in private practice at the same time that he practiced at the clinic in the hospital. Petitioner's 1985 and February 1993 applications, although not the subject of this proceeding, also contained some minor discrepancies regarding Petitioner's employment experience. For example, one shows Petitioner beginning his employment with the Nicaraguan Red Cross on May 1, 1976, and the other shows Petitioner's employment beginning on May 31, 1976. The parties do not dispute that Petitioner in fact practiced with the Nicaraguan Red Cross during that time period. In further response to the question requiring Petitioner to list all of his practice experience or employment, Petitioner did not list his activities from September 10, 1984, and thereafter. The Board's December 21, 1992, letter to him requested that he account for all his activities for the time period of January 1, 1984, and thereafter. In his response he did not identify those activities except to say that during that time period he was living in Miami. The detailed information had been provided to the Board in response to a letter to Petitioner from the Board dated March 8, 1992, in conjunction with his original application for certification as a physician assistant, although he did not again provide that information when he was ordered by the Board to file a new application. In Petitioner's August application, he listed no ending date regarding his private practice begun on January 1, 1984 in Managua, Nicaragua. Petitioner's 1985 physician license application showed that that employment ended September 10, 1984, whereas his February application showed that practice to have ended on September 15, 1984. Such a discrepancy is not material to Petitioner's application or eligibility. The application form contains a section regarding clerkships and requests that each clerkship be specified. In the August application Petitioner did not specify his four individual clerkships. After being asked pursuant to the Board's staff's December 1992 letter to resubmit pages 8 and 9 as to his clerkships, Petitioner did so by referring to them as a group rather than breaking them down individually. He did the same in the February 1993 application. The parties do not dispute that Petitioner performed the required clerkships. It is unclear how many letters recommending him as a physician assistant Petitioner has submitted to the Board. Petitioner referenced his submittal of photocopies of the "last two" letters of recommendation, the originals of which had previously been submitted to the Board, in a letter that Petitioner sent the Board in March of 1992. In correspondence from the Board to Petitioner in May of 1992 reference is made to the requirement that Petitioner submit another letter of recommendation because the Board did not have the original of that letter in its file. When the Board's staff instructed Petitioner to appear before the Physician Assistant Committee on August 1, 1992, the absence of necessary letters of recommendation was not one of the reasons given. The Board's August 26, 1992, Order requests "two more letters", which indicates that letters had been previously submitted. The staff's December 21, 1992, communication to Petitioner acknowledges receipt of one additional letter but requests another, which request was complied with at least by the submittal of the letter from Dr. Bermudez received by the Board on January 20, 1993. Petitioner applied to be certified as a physician assistant and the Board determined that he was eligible to take the examination. Thereafter, through a series of mistakes and correct acts, the Board's staff requested Petitioner on a number of occasions to file additional applications which he did. When the Board's staff asked for clarification he responded in writing and by telephone call, and the Board agrees that it has telephone slips in Petitioner's file. Each time the Board's staff asked for different information than had been given in Petitioner's previous application(s), Petitioner provided more and/or different information. There is no suggestion that Petitioner attempted to provide inaccurate or false information, and it is found that Petitioner provided correct and complete information to the best of his ability. Petitioner's mistakes are certainly no greater than the mistakes made by the Board's staff in sending Petitioner conflicting instructions, conflicting correspondence, and one letter that did not make any sense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered permitting Petitioner to sit for the physician assistant examination to be administered during September of 1993. DONE and ENTERED this 12th day of July, 1993, 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 12th day of July, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-1550 Respondent's proposed findings of fact numbered 1-10 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: Catherine Lannon, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Enrique Rueda Arguello 9409 Fountainbleau Boulevard, Apt. #101 Miami, Florida 33172 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be determined are whether Petitioner meets the requirements for licensure by endorsement pursuant to section 458.313, Florida Statutes (2013), and whether the Board’s interpretation of section 458.311(3), Florida Statutes, is an unadopted rule in violation of section 120.54(1), Florida Statutes (2013).
Findings Of Fact Based upon the stipulations of the parties and the documentary evidence presented, the following facts are found: Petitioner, Leon Rawner, M.D., is a licensed medical doctor in the state of Wisconsin and an applicant for licensure as a medical doctor by endorsement in Florida. The Florida Board of Medicine is the agency charged with the licensing and regulation of allopathic medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Applicants for licensure by endorsement must meet the requirements specified in section 458.313. Those requirements include meeting the qualifications identified in section 458.311(1)(b)-(g) (alternative one) or section 458.311(1)(b)-(e), (g), and (3) (alternative two). Petitioner is over 21 years of age, and has submitted a set of fingerprints on a form and under procedures specified by the Department of Health, along with a payment in an amount equal to the costs incurred by the Department of Health. Petitioner has successfully passed the required criminal background screening. Petitioner’s application for licensure by endorsement demonstrates that he is licensed to practice medicine in another jurisdiction, the state of Wisconsin, and that he has been active in the practice of medicine for at least two of the four years immediately preceding the application. Petitioner has a clean record in his current medical practice in Wisconsin and is not under any investigation in any jurisdiction for an act or offense which would constitute a violation under section 458.331, and has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to section 458.331. Petitioner has completed the equivalent of two academic years of pre-professional, postsecondary education, as determined by rule of the Board, which included, at a minimum, courses in anatomy, biology, and chemistry prior to entering medical school. Petitioner received a bachelor’s degree from Brandeis University, an accredited United States university. Petitioner has passed the appropriate medical licensure examinations, the United States Medical Licensing Examination, Step-1, Step-2, and Step-3. Petitioner holds an active, valid certificate issued by the Educational Commission for Foreign Medical Graduates (ECFMG) and has passed the examination used by the Commission. In 2006, Petitioner graduated with a degree of Doctor of Medicine from American University of the Caribbean School of Medicine. Petitioner graduated from an allopathic foreign medical school (American University of the Caribbean School of Medicine) which is recognized by the World Health Organization. Petitioner completed all of the formal requirements for graduation from American University of the Caribbean School of Medicine. Petitioner’s application for licensure demonstrates that he has completed the academic year of supervised medical training prior to graduation as required under section 458.311(3)(d). Petitioner did not graduate from an allopathic medical school or allopathic college recognized and approved by an accrediting agency recognized by the United States Office of Education. Petitioner did not graduate from an allopathic medical school or allopathic college within a territorial jurisdiction of the United States recognized by the accrediting agency of the governmental body of that jurisdiction. Petitioner is not a graduate of an allopathic foreign medical school registered with the World Health Organization and certified pursuant to section 458.314, Florida Statutes, as having met the standards required to accredit medical schools in the United States or reasonably comparable standards. Petitioner has not completed an approved residency or fellowship of at least two years in one specialty area. Petitioner’s application for licensure demonstrates that he does not meet the postgraduate training requirements under section 458.311(1)(f)3. Petitioner completed one year of residency training in the Internal Medicine Program at Mt. Sinai-Elmhurst Hospital Center, Queens, New York. Besides the residency training program at Mt. Sinai– Elmhurst Hospital Center, Queens, New York, Petitioner has not completed any other residency or fellowship training. Petitioner does not have two years of any residency or fellowship training which can be counted toward regular or subspecialty certification by a board recognized and certified by the American Board of Medical Specialties. Since January 24, 2011, Dr. Rawner has been practicing medicine in Wausau, Wisconsin, as a staff physician with Knee Pain Solutions Center. Accordingly, he has been in the active practice of medicine for the two years preceding his Florida application. Dr. Rawner submitted his application for licensure by endorsement on March 13, 2013. Supplemental documentation was filed with the Board by letter dated March 18, 2013. In that letter, Dr. Rawner expressly stated that he was relying on the second alternative for establishing licensure by endorsement, which does not include the requirements identified in subsection 458.311(1)(f). On April 3, 2013, the Board requested additional information, and in response, Dr. Rawner provided a copy of his undergraduate degree and information related to his one year of supervised medical training. Other information requested in the April 3, 2013, letter was sent directly to the Board office by the appropriate agencies, including an official United States medical examination transcript, indicating that Dr. Rawner passed USMLE Steps I, II, and III; a letter from the residency program director, indicating that Dr. Rawner completed one year of residency training; confirmation from the Wisconsin Medical Board confirming his current, valid medical license in the state of Wisconsin; an American Medical Association (AMA) profile letter; and Dr. Rawner’s fingerprints and clear background check. Program Operations Administrator Chandra Prine notified Dr. Rawner by letter dated June 26, 2013, that he was required to appear before the Credentials Committee of the Board. The purpose of the appearance was to discuss: Failure to meet the training requirement pursuant to section 458.313(1)(a), 458.311(1)(f)3.c., Florida Statutes. Failure to complete an academic year of supervised clinical training pursuant to section 458.311(3)(d), Florida Statutes. Dr. Rawner appeared before the credentials committee of the Board of Medicine on August 1, 2013. The committee recommended that his license be denied. On August 22, 2013, the Board of Medicine issued a Notice of Intent to Deny Licensure, stating that it intended to deny Dr. Rawner’s application because Dr. Rawner did not meet the requirements of section 458.313(1), which requires an applicant to meet the qualifications outlined in either section 458.311(1)(b)-(g) (alternative one), or in section 458.311(1)(b)- (e), (g) and (3) (alternative two). The notice stated that with respect to alternative one, Dr. Rawner did not meet the requirements of section 458.311(1)(f)3., because he had not completed an approved residency or fellowship of at least two years in one specialty area. With respect to alternative two, the Board determined that Dr. Rawner did not meet the requirements of section 458.311(3)(c) because, in the Board’s view, the section was inapplicable to Dr. Rawner because he had completed all requirements of the foreign medical school, with none outstanding, and did not meet the requirement of (3)(d) because he had not completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association. Dr. Rawner filed a Petition for Administrative Hearing with respect to the Notice of Intent to Deny, and the matter was reconsidered at the credentials committee’s meeting on October 3, 2013. The credentials committee voted to reconsider the application based on the issues presented in the Petition. On October 22, 2013, the Board issued an Amended Notice of Intent to Deny Licensure. With respect to alternative two, in the Amended Notice, the Board stated: [t]he application file reveals that Dr. Rawner fails to meet subsection (3) for the reasons set forth below. Subsection (3) provides: Notwithstanding the provisions of subparagraph (1)(f)3., a graduate of a foreign medical school need not present the certificate issued by the Educational Commission for Foreign Medical Graduates or pass the examination utilized by that commission if the graduate: Has received a bachelor’s degree from an accredited United States college or university. Has studied at a medical school which is recognized by the World Health Organization. Has completed all of the formal requirements of the foreign medical school, except the internship or social science requirements, and has passed part I of the National Board of Medical Examiners examination or the Educations Commission for Foreign Medical Graduates examination equivalent. Has completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association and upon completion has passed part II of the National Board of Medical Examiners examination or the Educational Commission for Foreign Medical Graduates examination equivalent. Subpart (3)(c) provides in relevant part all of the formal requirements of the foreign medical school, except the internship or social service requirements, and has passed certain examinations. A plain reading of this subpart is that the foreign medical school has an internship or social service requirement and that the internship or social service requirement has not been completed. The application file demonstrates that Dr. Rawner graduated in June, 2006, with a degree of Doctor of Medicine from the American University of the Caribbean School of Medicine. Thus, subpart (3)(c) is inapplicable to Dr. Rawner, because the application file reveals that he completed all of the formal requirements of the foreign medical school and there are no outstanding or pending internship or social service requirements. Based on the foregoing, the Board finds that the Applicant has not demonstrated that he meets the requirements for licensure by endorsement set forth in Section 458.313(1)(a), Florida Statutes. The Amended Notice no longer listed failure to complete an academic year of supervised clinical training as a basis for the denial of Dr. Rawner’s application. There is no persuasive evidence presented that Respondent’s interpretation of the requirements of section 458.311, Florida Statutes, as it applies to this case, is a statement of general applicability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order approving Leon Rawner, M.D.’s application for licensure by endorsement. DONE AND ENTERED this 28th day of April, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2014. COPIES FURNISHED: Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Amy W. Schrader, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302 Allison M. Dudley, Executive Director Board of Medicine Department of Health Division of Medical Quality Assurance Boards/Councils/Commissions 4052 Bald Cypress Way Tallahassee, Florida 32399 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Findings Of Fact Dr. Koplin initially filed an application for a Public Health Certificate on May 20, 1986. As part of the application review process in effect at the time of the application, a candidate for certification was required to take an abbreviated oral examination, which was to be administered by the Board. Dr. Koplin's application was not formally reviewed by the Board until April 5, 1987. By this date, the legislature had amended the statute which pertained to the granting of Public Health Certificates. An abbreviated oral examination was no longer required. Instead, the candidate was required to meet all of the requirements of Section 458.311(1)(a) - (f) and (s), Florida Statutes. Under the new requirements, a candidate was required to complete an approved residency of at least 12 months. Dr. Koplin was unable to meet this new requirement because his formal medical education internship occurred during World War II, and his residency was completed in January, 1944, under a concentrated ten-month program. Dr. Koplin's application, Petitioner's Exhibit No. 1, provides the Board with publications regarding the accelerated program. During this era, the medical schools in the United States and the Surgeons General of the Army and Navy recognized that an accelerated internship and residency program was the most feasible method to use during wartime conditions when medical education deferments had to be balanced against the need for commissioned medical officers, commissioned officers, and the need for residents in civilian hospitals to assist with the growth in patient loads. Immediately after Dr. Koplin completed his ten-month accelerated residency and his additional two-month internship in pathology, his military deferment ended. His active duty in the Public Health Service began on March 15, 1944. The Board did not address the wartime exception to the twelve-month residency program during the formal review of Dr. Koplin's application on April 5, 1987. Instead, the Board chose to apply the law in effect at the filing of the application as opposed to the law in effect during the time of the Board's review. The decision to administer an impromptu abbreviated oral examination was made at the time of review. Dr. Koplin had not been made aware that an oral examination would be administered to him on that date, and he was given no notice of the areas to be covered by the examination. The examination administered by the Board on April 5, 1987, consisted of a few open ended, general questions in the area of public health. Dr. Koplin was asked to tell the Board about the modern treatment of tuberculosis and the treatment of venereal disease. During the course of the examination, it became apparent through Dr. Koplin's answers to the questions and his own admissions, that he had not been involved in primary patient care for over ten years. He was unable to answer the examination questions to the Board's satisfaction. The Board voted unanimously to deny the application for the Public Health Certificate based upon the Board's belief that Dr. Koplin was not currently qualified to provide adequate primary medical care to indigents in Florida. Dr. Koplin was present during the Board's vote on the application, and he was aware that he would not be granted a certificate. In spite of verbal and written notice to Dr. Koplin that the Board would deny his application, no written Final Order was ever issued by the Board with respect to that application. On December 28, 1987, Dr. Koplin submitted a new application for Public Health Certification to the Board. On August 6, 1988, the Board reviewed and considered Dr. Koplin's application and determined that the license should be denied for the following reasons: In regard to Dr. Koplin's previous application for Public Health Certificate in 1987, the Board of Medicine found Dr. Koplin to be unable to demonstrate that he was capable of practicing with reasonable skill and safety because of his lack of medical knowledge. The Board finds now that Dr. Koplin has failed to present any evidence that he is currently capable of safely engaging in the practice of medicine. See Section 458.301 and 458.331(4), Florida Statutes (1988). Dr. Koplin presently holds a temporary medical certificate under Section 458.315, Florida Statutes, which was issued on December 12, 1987. This certificate allows him to practice medicine in Glades County, Florida, an area of critical medical need. He has been practicing medicine in Glades County since the license was issued until the date of the hearing. During the administrative hearing, Dr. Koplin presented the deposition testimony of three physicians who have worked with him in Florida, and who have had an opportunity to consult with him and review his patient charts. These physicians gave their opinions that Dr. Koplin is a competent physician who provides quality medical care. In addition, Dr. Koplin submitted an updated transcript of medical courses he has taken since his original application to the present in order to update his medical knowledge in the public health field. Dr. Koplin presented himself at hearing, and gave more complete answers to the questions originally asked by the Board in the abbreviated oral examination.
Recommendation Accordingly, based upon the foregoing, it is RECOMMENDED: That a Final Order be entered by the Board of Medicine approving Dr. Koplin's application for a Public Health Certificate based upon his initial application filed on May 20, 1986, and reviewed on April 5, 1987. DONE AND ENTERED this 8th day of June, 1989, in Tallahassee, Leon County, Florida. VERONICA DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER The Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See paragraph 3 and paragraph 5. Accepted. See paragraph 12. Accepted. See paragraph 11. Accept all but the last sentence. See paragraph 9 and paragraph 10. Accepted. See paragraph 7 and paragraph 8. Accepted. Accepted. See paragraph 11. The Respondent's proposed findings of fact are addressed as follows: Accepted. See paragraph 1. Accepted. Accepted. See paragraph 12. Accepted. See paragraph 2, paragraph 6 and paragraph 9. Accepted. See paragraph 9. Accepted. Accepted. Accepted. Accepted. See paragraph 11. Rejected. Irrelevant. Accepted. See paragraph 11. Accepted. See paragraph 11. Accepted. See Preliminary Matters. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #9. Accepted. Rejected. Improper conclusion. Contrary to factual determination by Hearing Officer. Accepted. See HO #9. Accepted. Rejected. Speculative. Rejected. Contrary to fact. Accepted that Dr. Koplin has been providing primary care since he received his temporary Florida license. Rejected that this testimony is in conflict with prior testimony. Contrary to fact. See HO #12. Accepted. See HO #13. Accepted. Rejected. Improper conclusion. Rejected. Goes to weight as opposed to sufficiency. See HO #13. Rejected. Sufficiency to be determined by Hearing Officer. Accepted. Rejected. Sufficiency to be determined by Hearing Officer. Accepted. Rejected. Sufficiency to be determined by Hearing Officer. Rejected. Sufficiency to be determined by Hearing Officer. See HO #13. Accepted. See HO #3 - #6. Accepted. See HO #5. Accepted. See HO #13. Accepted. See HO #7. Accepted. Accepted. See HO #8. Accepted. See HO #7. Accepted. See HO #9. Rejected. Improper summary. Accepted. Rejected. Irrelevant. Not a factual matter. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire CUMMINGS, LAWRENCE & VEZINA, P.A. Post Office Box 589 Tallahassee, FL 32302-0589 Allen R. Grossman, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050 Dorothy Faircloth, Executive Director Florida Board of Medicine Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 =================================================================
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 Whether Petitioner is entitled to sit for the examination for licensure as a physician assistant.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: 1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization ... Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. The Order cited the following four grounds for the denial: The applicant (Petitioner) does not have a medical degree as required by Sections 458.347(b)1.b. and 458.311(1)(f)3.a., Florida Statutes. The applicant has been unable to provide adequate evidence that he was a resident in Florida on July 1, 1990. The applicant has failed to account for all time and activities on his application from July 1981 - May 1982. The applicant has failed to list all employment activities on his application when compared to the Resume of Qualifications he submitted. Petitioner attended medical school at the Universidad Central del Este (UCE) in the Dominican Republic from 1975 to 1981. Petitioner testified that he completed his assigned curriculum and that he participated in graduation exercises. Petitioner did not receive a diploma or a medical degree from UCE because he owed the university for tuition. In response to an inquiry from Respondent, the Dean of Medicine of UCE provided the following information: ... [W]hile it is true that [Petitioner] completed the curriculum of our School of Medicine, he has other requisites to be completed. Among these is an outstanding debt for registration fees at our University. Until this debt is satisfied he cannot be awarded the degree of Doctor of Medicine, nor can any documents be issued. Petitioner's application and the documentation he initially submitted in support thereof did not establish that Petitioner met the residency requirements of Section 458.347(7)(b)1.d., Florida Statutes. The evidence submitted at the formal hearing established that Petitioner was a resident of the State of Florida on July 1, 1990, and at all other times pertinent to this proceeding since that time. Petitioner, in his application for licensure, failed to set forth his activities between July 1981 and May 1982./1 Petitioner has subsequently provided that information to the Respondent. During that time, Petitioner was unemployed and studying for his medical examinations. Petitioner, in his application for licensure, failed to completely set forth his employment history, including his work as a medical health counselor and as a mental health supervisor. His employment history is required by the application form and should have been included as part of his application package. All information pertinent to his employment has now been provided by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application on the grounds that he is not a graduate of a medical school recognized by the World Health Organization. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993.
Findings Of Fact In February, 1984 Petitioner applied to Respondent for licensure by examination under Section 458.311(2), F.S., but after review of said application at a meeting held on June 10, 1984, Respondent issued an Order dated July 21, 1984 denying said application. Petitioner received a degree which is designated Doctor of Medicine on May 2, 1983 from the Universidad Techologica de Santiago, (UTESA), Santo Domingo, Dominican Republic. He has been in residency at Orlando Regional Medical Center since June 28, 1983. Various required clerkships were performed by Petitioner between August 2, 1982 and February 28, 1983 in hematology, obstetrics and gynecology, pediatrics, dermatology and ENT/0phth., and were performed completely, or partially at osteopathic hospitals, or under the supervision of osteopathic physicians. An additional one month elective clerkship was also performed in April 1983 at Southeastern College of Osteopathy. Petitioner passed the exam given by the Educational Commission for Foreign Medical Graduates (ECFMG) on March 15, 1983, but has not been certified due to the need for additional institutional verification. Respondent informed Petitioner of the decision of ECFMG to withhold verification of certification and also informed Petitioner of its duty to approve or deny an application for licensure within ninety (90) days, unless waived by the applicant. Petitioner declined to consent to a waiver and requested Respondent to act on his application without verification of an ECFMG certificate.
The Issue The issues presented here are based upon an Administrative Complaint filed by the Petitioner against the Respondent seeking the revocation, suspension, or other disciplinary action against the Respondent, and his license to practice medicine in the State of Florida. Count I to the Administrative Complaint accuses the Respondent of making misleading, deceptive, untrue and fraudulent representations in obtaining his license to practice medicine in the State of Florida. It is further contended that Respondent has not and cannot demonstrate that he graduated from medical school, and alleges that Respondent cannot demonstrate that he has met the minimal medical education, training and experience necessary for licensure by the Petitioner. Based upon these allegations, Respondent has purportedly violated Subsection 455.1201(1)(a), Florida Statutes (1977), by failing to demonstrate qualifications and standards for licensure contained in Chapter 455, Florida Statutes, or the rules and regulations of the Board of Medical Examiners. Count II, utilizing the same factual basis as has been alleged in the initial count, accuses the Respondent of violating Subsection 455.1201(1)(b) , Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. Count III accuses the Respondent, based upon the aforementioned facts, with violating Subsection 458.1201(1) Florida Statutes (1977), by engaging in unethical, deceptive or deleterious conduct or practice harmful to the public. Count IV is based upon the facts as related in Count I and asserts that Respondent has violated Subsection 455.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, negligence or willful misconduct. Count V, utilizing the facts related in Count I, alleges that Respondent has violated Subsection 455.327(2)(c), Florida Statutes (1951), and thereby violated Subsection 458.331(1)(x), Florida Statutes (1981), by violating a provision of Chapter 455, Florida Statutes. Finally, Count VI, asserting the facts as discussed herein, alleges that Respondent has violated Subsection 455.331(1)(a), Florida Statutes (1951), by attempting to obtain and obtaining a license to practice medicine by fraudulent misrepresentations CASE HISTORY On September 24, 1981, the Petitioner filed the Administrative Complaint against the Respondent which is the subject of this proceeding and which is referred to in summary fashion by the Issues statement to this Recommended Order. Subsequently, Respondent requested a hearing in this cause on November 11, 1981, by indicating, in substance, that he disputed the allegations as contained in the Administrative Complaint. On that same date, Respondent, through counsel, answered the Administrative Complaint. This answer was made a part of the record in the course of the final hearing and is being forwarded with the Recommended Order in this action. On November 30, 1981, the Division of Administrative Hearings received the case from Petitioner, the Petitioner having requested the Division to conduct a formal hearing in this matter. On December 3, 1981, Respondent's initial counsel withdrew from representation of Respondent. Respondent subsequently obtained the assistance of his present counsel, Rodney Smith, Esquire, and a final hearing was conducted on March 9, 1982, in keeping with Subsection 120.57(1), Florida Statutes. Petitioner's presentation consisted of testimony by Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, State of Florida. Petitioner also offered seven (7) items as evidence. All those items, with the exception of Nos. 5 and 6, have been received. Respondent gave testimony and presented as witnesses Edward M. Crawford, President, High Springs, Florida, Chamber of Commerce; Lorna J. Peters, resident, High Springs, Florida; Leslie Ann Morgan, X-Ray Technologist in the office of Respondent; Angela Anderson, employee of Respondent; Mireya Braga, Respondent's wife; Lacey William Register, Mayor, High Springs, Florida; a Mr. Westmoreland, resident, High Springs, Florida; Cybil M. Crawford, Vice- President, High Springs Bank, High Springs, Florida; and Thomas William Wolfe, Chief of Police, High Springs, Florida. Respondent offered six (6) items of evidence. All items have been received. The parties, in the person of counsel, have offered proposed recommended orders and supporting argument. Those matters have been reviewed prior to the entry of this Recommended Order. To the extent that those items are consistent with this Recommended Order, they have been utilized. To the extent that the matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact In February, 1976, Respondent made his initial application to the Board of Medical Examiners to become a licensed physician in the State of Florida. A copy of that application may be found as Petitioner's Exhibit No. 1, admitted into evidence. This application was received beyond the time of the deadline for filing and as a consequence, Respondent was required to submit a further application. The second application was made on January 17, 1977. A copy of that application may be found as Petitioner's Exhibit No. 2, admitted into evidence. Both applications were prepared by the Respondent and sworn to as to their accuracy. This attestation also acknowledged that if false information was given in the application, that Respondent agreed that the act of falsifying the application constituted cause for denial, suspension or revocation of his license to practice medicine in the State of Florida. Following the submission of the second application for licensure, Braga stood the Board of Medical Examiners' license examination, given in English, and was a successful candidate for licensure. He was awarded License No. ME0032004 and has renewed that license by the payment of applicable fees since the initial award of the license in 1978. The Administrative Complaint which has been discussed in the course of this Recommended Order challenges the accuracy of the information presented in the applications which were submitted by Respondent. In the initial application filed by the Respondent for licensure dating from February, 1976, Braga states that he attended Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from February, 1971, through December, 1967. In the application, Respondent indicates that he practiced and/or was employed at the INPS (Institute National of Providence Social) , Sao Paulo, Brazil, in General Practice, between 1970 through 1972; Clinica Nuesta Senora, Sao Paulo, Brazil, in General Practice, between 1971 through 1972; Heliopolis Hospital, Sao Paulo, Brazil, between 1969 through 1970, and the Fundacao Centro Nacional, San Paulo, Brazil, between January, 1968 and December, 1968. The initial application of February, 1976, also contained a document written in Portuguese, which was sworn and certified to by Braga as being a true, authentic and legitimate photocopy of the original of his medical diploma issued by Medic Sciences of Santos in Brazil. (See Petitioner's Exhibit No. 1) There is also contained in the application of February, 1976, an indication, under oath by Respondent, concerning a document as attached, purportedly issued by Heliopolis Hospital in San Paulo, Brazil. Finally, Respondent had attached to the form application, and found in Petitioner's Exhibit No. 1, affidavits from three physicians; Antonio J. Maniglia, Jorge Macedo and Humberto Munoz. These affidavits indicated that the physicians swore and affirmed that, by their personal knowledge, Respondent attended and graduated from Faculdade de Ciencias Medicas de Santos, and practiced lawfully in the profession of medicine in Brazil in the years 1968 through 1972, and further indicated that the physicians had practiced in Brazil during that time. It has been proven and Respondent acknowledges that the application of February, 1976, Petitioner's Exhibit No. 1, was false to the extent that it indicated his attendance at Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, during the years 1971 through 1967; to the extent that the application indicated he practiced in the hospitals and clinics as set forth above, and to the extent that the application indicated that the physicians who had signed the affidavits had personal knowledge of Respondent's graduation from the medical school and his practice of medicine in Brazil. In the January, 1977, application with associated documents, found as Petitioner's Exhibit No. 2, admitted into evidence, Respondent indicates to the Board of Medical Examiners that he attended Faculdade de Ciencias Medicas de Santos, Sao Paulo, Brazil, from December 1967 to February, 1971, and received his degree of Doctor of Medicine from that school on January 7, 1967. He indicates in the application, on the subject of residency or other postgraduate training, that he worked at the Fundacao Lusiada, Faculdade de Ciencias Medicas de Santos, from January, 1967, through October, 1967; and attended a Vascular Surgery Course, in the Heliopolis Hospital, Sao Paulo, Brazil, November, 1970. His employment was described in the application as being at the INPS (Institute National of Providence Social) Hospital, Sao Paulo, Brazil, General Practice, 1970 through 1972; at Clinica Nuestra Senora, Sao Paulo, Brazil, General Practice, 1971 through 1972; at Heliopolis Hospital, Sao Paulo, Brazil, General Practice, 1969 through 1970; and Fundacao Centro Nacional, General Practice, January, 1968 through December, 1968. The second application, which is found as Petitioner's Exhibit No. 2, attached a medical diploma purportedly from the School of Medical Sciences of Santos (Faculdade de Ciencias Medicas de Santos). This document shows a date of January 7, 1967, and was dissimilar to the diploma document which was attached to the February, 1976, application. There were certain affidavits with the January, 1977, application from physicians Jose A. Pardo, Jaime Motta and Pedro Melo, which affidavits indicated that the physicians had personal knowledge of Braga's attendance and graduation from Faculdade de Ciencias Medicas de Santos, in Sao Paulo, Brazil, and that he had lawfully practiced the profession of medicine in Brazil in the years 1967 through 1972. It was shown and Respondent admits that the January, 1977 application for licensure was false, in that Respondent did not attend the Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from December 1967 through February, 1971; that be had not practiced medicine in the hospitals and clinics as listed; that be had not attended residency or postgraduate training programs as shown in the application; and that the physicians who signed the affidavits for Respondent did not have personal knowledge of his graduation from medical school or his practice of medicine in Brazil. In reality, while it is accepted, that Respondent, who is a native of Brazil, has obtained a medical doctor's knowledge, Braga is not found to have graduated from a medical school either in that country or elsewhere or to have, following graduation from a medical school, practiced medicine as a general practitioner for five years or practiced in a one-year internship program, prior to licensure in Florida. Respondent departed Brazil sometime either in 1968 or 1969. Fe did so in the face of circumstances in his country, in which Respondent had been imprisoned. After gaining his freedom he migrated to the United States. When Braga arrived in the United States, he moved to Chicago, Illinois, and practiced medicine in that community without the benefit of a medical license. He subsequently left the State of Illinois and moved to Florida. After arriving in Florida and while employed in the Milagrosa Clinic in Miami, Florida, practiced medicine. At that time he had not been licensed by the State of Florida to practice medicine. Prior to the date of licensure by the State of Florida, Respondent attended and successfully completed the Florida State Board of Medical Examiners' continuing education program for 1977, which was offered by the Office of International Medical Education, University of Miami, School of Medicine, In turn, he successfully stood the requisite medical examination offered in English and was licensed. After receiving his medical license in 1975, Respondent moved to High Springs, Florida, and opened a medical practice which is primarily involved with the general practice of medicine. In the course of his practice, he has treated some 15,000 to 20,000 patients. Respondent offered as witnesses many persons from the community of High Springs, Florida, who, from the point of view of these individuals, are impressed with his good moral character. No evidence was presented from either side on the subject of Respondent's reputation as a medical practitioners as perceived by members of his profession.
