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 By a three Count Administrative Complaint filed August 22, 1987, Petitioner sought to discipline Respondent's medical license. Counts II and III were voluntarily dismissed ore tenus at the commencement of formal hearing and they are therefore dismissed as a matter of law. The remaining Count I alleges violations of Section 458.327(1)(c), Florida Statutes, attempting to obtain or obtaining a license to practice by a knowing misrepresentation and of Section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining or renewing a license to practice medicine by bribery, fraudulent misrepresentations or through an error of the Board of Medicine. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Respondent as an adverse witness and introduced deposition testimony of 5 other witnesses. Petitioner had 5 exhibits (including depositions) admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of 4 other witnesses, John C. McCloskey, Dr. John K. Robinson, Dr. William M. Straight, and Hilda Bengochea and the deposition testimony of 1 other witness. Respondent had 5 exhibits (including one deposition) admitted in evidence. The Joint Prehearing Stipulation was admitted as Hearing Officer Exhibit A. The transcript in this cause was duly filed and the parties timely filed their respective proposed findings of fact and conclusions of law, the findings of fact of which have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number 0040981. Respondent's last known address is 555 Biltmore Way, Suite 201, Coral Gables, Florida 33134. On or about May 11, 1982, Respondent submitted an application to the Florida Board of Medical Examiners for licensure to practice medicine in the State of Florida. Based on the application, Respondent was granted licensure by endorsement and was issued Florida Medical License ME 0040981 from the Board of Medicine in September, 1982. On the above-mentioned application Respondent represented that he had attended Universidad Nacional Pedro Henriguez Urena (UNPHU) from January 1975 to January 1979 and that he had attended Universidad Centro de Estudios Technicos Medical School (CETEC) between January 1979 and December 1980. Respondent further failed to include his attendance at Instituto Technologico de Santo Domingo Medical School (INTEC) between approximately October 1979 and June 1980 (approximately 8 or 9 months). Respondent's actual attendance at UNPHU was from January 1975 to June 1979. From June 1979 to October 1979 Respondent was to all intents and purposes on summer vacation. He was in attendance at INTEC from October 1979 to June 1980 and at CETEC from June 1980 to December 1980. All of these medical schools are physically located in the Dominican Republic. In September, 1979 Respondent had applied for a transfer from UNPHU to INTEC. He was accepted in September, 1979 and began his course of study at INTEC in 0ctober, 1979. INTEC required that, in order for Respondent to graduate from that institution, he must repeat a number of courses that he had previously taken and passed at UNPHU. As a consequence, Respondent took approximately six courses (during two academic quarters) at INTEC, which courses he had previously taken and passed at UNPHU. Under the auspices of INTEC, after completing two quarters, Respondent was required for three months, until June, 1980, to do field medical work to assist those in the Dominican Republic countryside who needed medical assistance as a result of hurricanes Frederick and David. Respondent also did clinical rotations at one or two local hospitals in the city of Santo Domingo. He did well at INTEC and was not asked to leave that university. In June 1980, Respondent applied and was accepted at CETEC. CETEC's school of medicine first began its admission process in December 1979 but CETEC did not start its first classes until January, 1980. Respondent was admitted into the M.D. program in June 1980. Respondent never lived on any campus in the Dominican Republic but lived independently in town. He does not recall if he switched residences between institutions. CETEC gave Respondent credit ("convalidated") for the courses he had taken at both UNPHU and INTEC. Petitioner has pointed to no evidence that his convalidation was inappropriate under the circumstances. Respondent's motivation when he transferred to CETEC was that CETEC allowed him to participate in a rare opportunity--an externship program at the University of Miami School of Medicine at Jackson Memorial Hospital in Miami, Florida. Respondent changed his Santo Domingo residence to one in his hometown of Miami when he moved there. He completed his rotations in the United States under the auspices of CETEC. The evaluations from the University of Miami School of Medicine indicated that Respondent did extremely well during these rotations. Respondent graduated from CETEC and was granted a diploma in December, 1980. Subsequently, Respondent applied for, and was accepted and worked in a residency training program in Pensacola, Florida, for three years. The evaluations from his residency indicate that Respondent's performance was well above average and he was appointed as chief resident in his last year of this residency. The application for Florida licensure containing the inaccuracies stated in Finding of Fact 5, supra, was filed during Respondent's year of internship, when he was on call every other night. The application form requested him to list his medical education and to "be specific" and "account for each year". He did not have his records with him in his physical location in Pensacola at the time he discovered that the Florida Board only accepted applications once a year and he had little time in which to meet the time limit for his only possible application for 1982. The inaccuracies of Respondent amount to a wrong date for departure from UNPHU; a wrong date (18 months early) for beginning at CETEC, which date predates CETEC's first medical school class, and complete omission of his INTEC experience. In addition to the speed and stress of the application period and the absence of accurate backup records, Respondent explains the application's inaccuracies by pointing to his contemporaneous belief that he was being accurate and his incorrect perception at that time, based on prior experience, that the question was only seeking the name of the medical school from which he graduated and his date of graduation. He also never considered his INTEC attendance as part of his medical education since it was short term and largely repetitive of previous course work he had successfully completed. Apparently recognizing that the question was ambiguous or at least could be better worded, the Board has since revised its application form to specifically require listing of all schools, clerkships, etc. by date. Dr. John Robinson, M.D., Associate Dean for Student Affairs at the University of Miami Medical School for twenty-one years testified on Respondent's behalf. As part of his duties at the medical school, Dr. Robinson acts as the Registrar who keeps students records and certifies their education. It is common within Dr. Robinson's education, training, and experience that students and physicians alike frequently but unintentionally mistake the dates and places they attend medical school. Based on his personal good opinion of Respondent's past medical background and practice and Respondent's reputation for truth and veracity, it was Dr. Robinson's opinion that the application inaccuracies represented human error of Respondent and common error within Respondent' s experience. Respondent presented testimony of other prominent physicians and lay witnesses in the community who attested to his good character, reputation for truth and veracity, excellent patient care, and community service through his medical practice. Generally, Petitioner did not affirmatively demonstrate any improper motive or establish that Respondent had any intent to conceal or misrepresent his medical education on his application. Nor did Petitioner establish that Respondent had anything to gain by the inaccurate information on his application. The dates given by Respondent were correct to the extent that they indicate the date he began his medical education, the date he ended his medical education, and the medical school (CETEC) from which he graduated and which gave him credit for his work at the two previous schools (UNPHU and INTEC). Dorothy Faircloth, Medical Board Executive Director, confirmed that in 1982 the Board's process was to verify the education of an applicant only from the school which issued his medical degree. Specifically, it was not affirmatively demonstrated that Respondent would not have been licensed had he disclosed his attendance at INTEC and noted the correct dates of his interim medical education. At the time of Respondent's application, the Board had no rule or policy relating to the number of schools an applicant had attended and nothing in the transcripts and official documents of any of the three universities attended by Respondent reflect unfavorably on Respondent. The Board has licensed a number of medical physicians who graduated from CETEC but who previously attended one or more medical schools prior to attending CETEC. Respondent was a bona fide student in attendance at CETEC and graduated in good standing. Except for alleging misrepresentation and fraud in the application, Petitioner has not attacked the thoroughness, efficiency, or efficacy of Respondent's actual education, nor his ability to practice medicine safely. Respondent is presently in private practice with two other medical physicians in Coral Gables, Florida. He has staff privileges at six area hospitals, he has never been charged or accused of malpractice, and he has not, until this case, been investigated by the Board of Medicine or had any action taken against his license. He is also currently licensed in Georgia.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Medicine enter a Final Order dismissing Count I against Respondent. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Divisionf Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-0401 The parties' proposed findings of fact (PFOF) are ruled on pursuant to Section 120.59(2), Florida Statutes, as follows: Petitioner's PFOF A. 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5-6. Covered in FOF 5. 7-8. Covered in FOF 11. B. 1-2. Covered in FOF 5. 3-4. Covered in FOF 19. 5. Covered in FOF 9. 6-8. Covered in FOF 10. 9. Rejected as not supported by the record, taken in context. SeeTR 35-36. 10-11. Accepted but unnecessary. Accepted but out of context and not dispositive of any issue at bar. Accepted but unnecessary and not dispositive of any issue at bar. Unnecessary. Unnecessary and not dispositive of any issue at bar. Rejected as stated because it is misleading as to the competent substantial record evidence as a whole and it is not an ultimate FOF. See FOF 19 and 22. Covered in FOF 4. Respondent's PFOF 1. Covered in Substance in FOF 2. 2-3. Covered in FOF 23. 4. Covered in FOF 3-4. 5-6. Covered in FOF 6. Covered in FOF 6-7. Covered in FOF 6-8. Covered in FOF 9. Subordinate, and also not clear from the record. The Respondent could just as easily mean that several different professors and not a single professor taught him at INTEC. 11-12. Covered in FOF 10. Covered in FOF 11. Covered in FOF 13. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. 18. Covered in FOF 17. 19. Covered in FOF 18. 22-23. Covered in FOF 19. 24. Covered in substance in FOF 19. 25-27. Cumulative. 28-29. Covered in FOF 19. 30. Covered in Substance in FOF 19. 31. Except as cumulative or subordinate, covered in FOF 19. 32. Covered as a conclusion of law. 33. Covered in FOF 19. 34. Unnecessary and not dispositive of the single count of the Administrative Complaint remaining at issue. 35. Rejected as argument of counsel. 36-39. Covered in FOF 20. 40. Covered in substance in FOF 20. 41-46. Except as subordinate, covered in FOF 21. 47-49. Unnecessary, but see FOF 21. 50-51. Except as subordinate, covered in FOF 21. 52. Unnecessary. 53-56. Covered in FOF 22. 57-58. Unnecessary and subordinate. 59 . Covered in FOF 22. 60. Covered in substance in FOF 19. 61-69. Unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert S. Turk, Esquire Suite 3400, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent graduated from the University of Havana Medical School in 1951 and practiced medicine in Cuba from that time until he immigrated to the United States in 1960. In Cuba his practice was primarily in the fields of obstetrics and gynecology. In his application dated 9 February 1975 to take the Florida Medical Examination, Respondent listed work at Hudson County Hospital for Mental Diseases (New Jersey) in 1960, work for the American Plasma Company (Miami) from 1965 to 1968, work at the Opa Locka General Hospital from 1967 to 1970, and that he was presently working as assistant doctor at 620 Southwest 1st Street, Miami. Prior to commencing this work at the Southwest Medical Clinic he contacted Physicians's Association of Clinics, Hospitals and Annex (PACHA), an organization which helps Cuban doctors obtain Florida licenses, and was told he could work at the clinic under Dr. Tomas and should register with the Board of Medical Examiners. Respondent registered with the Florida State Board of Medical Examiners as an unlicensed physician in two undated registrations, copies of which were admitted into evidence as Exhibit 5. In the earlier registration he states he is not a naturalized citizen and in the later application he states he is a naturalized citizen, although the year of naturalization is not shown. Anne West, who was apparently running an abortion referral service, called the State's Attorneys office in Miami on behalf of Respondent and was told Respondent could work at the clinic under a licensed doctor. She subsequently became Mrs. Bulas. Respondent testified he commenced doing medical work in the Miami area in 1975 when he became associated with and worked under the supervision of Kamel Tomas, M.D. in a clinic located at 620 Southwest 1st Street, Miami. He subsequently worked at this clinic under the supervision of two other licensed doctors whose names are Hernandez and Martin. In 1976 Respondent successfully passed the Florida Medical Examination and was licensed in July 1976. While working at the clinic on Southwest 1st Street Respondent performed several abortions. In an 18-count Information filed 23 March 1978 (Exhibit 1) for the period 1 May 1975 through 5 March 1976 Respondent was charged with 11 counts of unlawful practice of medicine, 6 counts of larceny and one count of unlawful termination of pregnancy. At his trial and upon the advice of counsel he pleaded nolo contendere, was found guilty of 10 counts of unlawful practice of medicine, six counts of grand larceny and one count of unlawful termination of pregnancy, and Adjudication of Guilt was withheld (Exhibit 2). Most of these charges alleged felonies. In Exhibit 3 the court stayed imposition of sentence and placed Respondent on probation for 5 years with a condition of probation that he be confined in the Dade County Jail for a term of one year. From reading the counts of the Information, as well as from the testimony of Respondent, it is clear that the larcenies alleged resulted from the fees charged by the clinic to those patients treated by Respondent, which formed the bases for the unlawful practice of medicine counts. The information alleging unlawful termination of pregnancy was based upon the performance of an abortion by Respondent while not licensed in Florida. The testimony was unrebutted that numerous clinics in Miami employ Cuban doctors who are unlicensed in Florida. In a class conducted at Jackson Memorial Hospital to prepare former Cuban doctors for the Florida examination there were about 460 in the class attended by Respondent, most of whom worked in clinics in Miami. At the time Respondent worked at the clinic he believed that so long as he was under a licensed doctor the medical work he performed was lawful. However, Respondent was not under the direct supervision of the licensed doctor as each was working on a different patient in separate examining rooms at the same time. No evidence was presented to indicate Respondent was not fully qualified by training and experience to perform the medical practices that he performed prior to receipt of his Florida license.
The Issue The issues to be considered concern the attempt by Petitioner to take disciplinary action against Respondent for violation of Section 458.331(1)(b), Florida Statutes, premised upon action that had been taken by the Medical Licensure Commission of the State of Alabama through a consent order. The action in Alabama was for violations of Section 34-24-360(8), Code of Alabama. The disposition pursuant to the consent order, briefly stated was: (a) Suspension of Respondent's license to practice for a period one year, (b) a fine in the amount of $500, and (c) upon the expiration of the suspension a period of probation.
Findings Of Fact On August 7, 1987, Respondent was issued a license to practice medicine in the State of Florida. That license number is ME0051286. Respondent failed to renew his license at the appropriate time, and his license became inactive on December 31, 1989. If he fails to take any further action to renew his license before December 31, 1991, the license will move from an inactive status to a void status. At present, Respondent is a resident of Stillwater, Oklahoma. He practices medicine in Oklahoma under a license from that state. Respondent attended the University of North Dakota and the University of Oklahoma in gaining his medical education. He interned at Thomasen General Hospital in El Paso, Texas, and completed a year of residency at Central State Hospital in Norman, Oklahoma. Concerning his practice in Florida, no indication was given a hearing that he had ever practiced medicine in Florida before becoming licensed in this state, nor that he had practiced medicine in Florida at a time his Florida license was inactive. On June 20, 1988, the Alabama State Board of Medical Examiners brought an action against Respondent before the Medical Licensure Commission of the State of Alabama. That administrative complaint and the ultimate disposition of that case may be found in Petitioner's Composite Exhibit 1. The Alabama administrative complaint charged the Respondent with practicing medicine in a manner such as to endanger the health of his patients; prescribing, dispensing, furnishing, or supplying controlled substances to persons other than for legitimate purposes; aiding and abetting the practice of medicine by a person not licensed; refusal to appear before the Board of Medical Examiners after having been formally requested to do so in writing; having had his staff privileges in Jay, Florida, removed for lack of medical competence, moral turpitude, or drug or alcohol abuse; being unable to practice medicine with reasonable skill and safety due to excessive use of drugs, narcotics, alcohol, chemicals or other substances and having engaged in immoral, unprofessional or dishonorable conduct as defined in the rules and regulations of the Medical Licensure Commission of Alabama. The administrative complaint goes on to describe the factual basis for the allegations. The administrative complaint was accompanied by an order temporarily suspending his license and setting a hearing to have the Respondent answer the allegations of the administrative complaint. The Alabama case was concluded based upon a stipulation of October 11, 1988, calling for the entry of a consent order. That consent order was entered on October 26, 1988. (On the subject of the failure to appear before the State Board of Medical Examiners in Alabama, it was determined that Respondent had not received the notice requiring his appearance and could not be said to have refused to make that appearance. This pertains to allegations at paragraph 2d of the administrative complaint in Alabama. The explanation of this matter is further explained in Respondent's Exhibit 3, correspondence from a staff attorney from the Alabama Board of Medical Examiners directed to counsel for Respondent.) The salient features of the stipulation include the Respondent's admission that the allegation in paragraphs 3 through 31 of the administrative complaint were true to the extent that persons named there were furnished with prescriptions for the specified controlled substances. On the other hand, Respondent denied that the prescribing of the controlled substances was for other than legitimate purposes and that the amounts supplied were for other than reasonable use. He consented to the entry of the consent order attached to the stipulation as it pertained to paragraphs 3 through 31. Respondent admitted the allegations in paragraph 36a in his refusal to submit to blood or urine screen without advice of counsel. The parties did stipulate that Respondent submitted to a blood and urine screening at a later date and that the results were negative. As to the balance of the allegations in the administrative complaint, the Respondent neither admitted or denied those matters and went on to agree to submission of the stipulation and consent order without further adjudication of the allegations contained in paragraphs 32, 33, 34, 35, 36(b), 36(c) and 37 of the Administrative Complaint. The Board of Medical Examiners for its part, as stated in the stipulation, felt that the case could be reasonably disposed of under the terms of the agreement without the necessity of making any further findings of fact or adjudication of the facts with respect to the allegations. As part of his agreement, Respondent promised to render cooperation to the Alabama Board of Medical Examiners and the Medical Licensure Commission, in particular as it related to reports and evaluations by a board certified psychiatrist and another individual who held a Ph.D. and J.D., advisers to the Oklahoma Medical Licensing Board. Those evaluations included blood and urine sampling for a period of 45 days. The Alabama authorities in the agreement held Respondent accountable for complying with the matters set forth in this paragraph five to the stipulation upon pain of revocation of his Alabama license. 9 The consent order states that based upon the facts set forth in the administrative complaint and the stipulation that the Medical Licensing Commission made findings of multiple violations of Section 34-24-360(a), Code of Alabama 1975). The reference to paragraph 2b in the consent order is one which appears to have been reconciled concerning his failure to appear before the Board of Medical Examiners as spoken to in paragraph 2d of the administrative complaint previously described. Through the consent order, the Alabama Medical License Commission reserved jurisdiction to determine the issue of whether or not Respondent is capable of practicing medicine in Alabama with reasonable skill and safety to patients associated with inebriation or the excessive use of drugs, narcotics, alcohol, chemicals, or other substances. The discipline that was imposed is that described in the Statement of Issues and more completely described in Petitioner's Exhibit 1 admitted into evidence. Page three of that discipline announced in the consent order is missing in the exhibit that was offered. That does not prohibit a sufficient impression of the events in Alabama to aid in addressing the Florida prosecution. The consent order reminded the Respondent that if he violated his probation, he would be subject to suspension or revocation for such violation, and it reserved jurisdiction to enter further orders or directives that might be required to implement the terms of its consent order. At the final hearing in this cause, Respondent continued to factually deny that he had prescribed, dispensed, furnished or supplied controlled substances to persons for other than legitimate medical purposes, a violation of Section 34-24-360(a), Code of Alabama (1975), and the basis for disposition by a consent order. Respondent and his father in their testimony at hearing indicated that the reason for not defending the Alabama charges was principally in order to facilitate the Respondent's readmission to practice medicine in Oklahoma. In the arrangement to settle the Alabama case, they were not thinking about his license in Florida. Respondent's position on the effect of the Alabama disciplinary action as it pertains to his acknowledged violation of Section 458.331(1)(b), Florida Statutes, is announced in his response to the second administrative complaint described in the Preliminary Statement and acknowledged by the present reference in these Findings of Fact. There was no indication provided at hearing that the Respondent has failed to abide by the terms of the stipulation and consent order that he entered into in Alabama.
Recommendation Based upon the consideration of the facts, and in view of the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which fines Respondent in the amount of $500 for violation of Section 458.331(1)(b), Florida Statutes. DONE and ENTERED this 31st day of October, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 31st day of October, 1990. APPENDIX The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: 1-4. Subordinate to facts found. Irrelevant. Subordinate to facts found. 7, to include a-c. Subordinate to facts found. 7d. Not accepted in that the information set out in that subparagraph was not provided with Petitioner's Composite Exhibit 1. Subordinate to facts found. Irrelevant. Subordinate to facts found. Subordinate to facts found, with the exception that the Respondent and his attorneys were considering the effect of the Alabama disciplinary action on a license to practice in Oklahoma. Respondent's Facts: 1-10. Subordinate to facts found. The first sentence of paragraph 11 constitutes legal argument. The remaining sentences in paragraph 11 are subordinate to facts found. Subordinate to facts found. COPIES FURNISHED: Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Neil H. Butler, Esquire 911 East Park Avenue Tallahassee, FL 32301 Dorothy Faircloth Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issues under consideration in this case concern an administrative complaint placed by the Petitioner against Respondent accusing him of practicing medicine with an inactive license for the period of January 1, 1988 until on or about October 27, 1988. For this alleged activity Respondent is said to have violated Sections 458.327(1) (a) and 458.331(1)(x), Florida Statutes.
Findings Of Fact Respondent attended the University of Rochester from 1977 to 1990 and received a B.A. in biology and a B.S. in neuro- science. He then received his medical education at Upstate Medical Center in Syracuse, New York, from 1984 until 1985 and graduated as an M.D. He served surgical internship at Geisinger Medical Center, a general surgery internship, in the year 1985. From 1985 until the point of hearing, he had been receiving training as a resident at the University of Florida Department of Orthopedic Surgery. As such, he is employed by the University of Florida. The residency program in the Department of Orthopedics at the University of Florida is approved by the Council on Graduate Medical Education. His duties as a resident physician include assisting the attending physician and making diagnosis and carrying out treatment, as well as prescribing medication. These duties are performed in Shands Teaching Hospital in Gainesville, Florida, and at the Veteran's Administration Hospital in that same community. In the period January and February, 1988, he was at Shands Teaching Hospital in pediatric orthopedic service. He then served four months at the Veteran's Administration Hospital in the general orthopedic rotation. He then returned to Shands Teaching Hospital as part of the adult reconstructive service. At no time while participating in those programs did he undertake other medical employment. On March 4, 1985, Respondent executed a form provided by the Board of Medical Examiners entitled "Registration Application for Unlicensed Physicians." It may be found as Petitioner's Exhibit 3B-1 admitted into evidence. The purpose of this form was to identify his participation as a resident at Shands Teaching Hospital. In response to the questionnaire, Respondent indicated that he did not intend to become licensed in Florida. This form was submitted to the Department of Orthopedic Surgery at the University of Florida and was subsequently forwarded to the Department of Professional Regulation. Notwithstanding the lack of intention on the part of the Respondent to practice medicine in Florida as expressed in his application as executed on March 4, 1985, Respondent applied for and was given an active license to practice medicine issued on November 22, 1985. The medical license is no. ME0047478. He took this step at the instigation of his employer the University of Florida who remitted the necessary fees to obtain that license. On January 16, 1986, Shands Teaching Hospital submitted a list of unlicensed physicians participating in programs within the University of Florida College Medicine as of January 14, 1986 and employed by the University of Florida. This list was sent to Dorothy J. Faircloth, Executive Director of Board of Medical Examiners (Board of Medicine). The attached list included the Respondent's name as being among those persons who were unlicensed physicians working at the University of Florida College of Medicine, Shands Teaching Hospital a that time. A copy of the correspondence of January 16, 1986, is found as Petitioner's exhibit 3-C admitted into evidence and the list itself is Petitioner's exhibit 3-D admitted into evidence. A copy of a list dating from July 1, 1986 describing unlicensed physicians at the University of Florida reflects Respondent's name. However, a line is drawn through his name and other identifying data concerning the Respondent. It is unclear from this record who had drawn that line through the name as reported. A copy of that report may be found as Petitioner's exhibit 3- E admitted into evidence. The list of licensed physicians at the University of Florida as of July 1, 1987, submitted to the Board of Medicine did not reflect the Respondent's name. This can be seen in an examination of Petitioner's exhibit no. 3-G admitted into evidence. Likewise, on January 15, 1988, correspondence was directed to Ms. Dorothy Faircloth, Executive Director of the Board of Medicine, a copy of which is Petitioner's 3-H, admitted into evidence. A list of unlicensed physicians at the University of Florida was attached. That attachment is Petitioner's exhibit no. 3-I, admitted into evidence and it does not show the Respondent's name. That list reflects the circumstance of unlicensed physicians as of January 15, 1988. The Respondent's initial registration as a resident physician on March 4, 1985, was in an effort to comply with the requirements set forth in Section 458.345, Florida Statutes. The submission of the list of the resident physicians and other physicians by the University of Florida, College of Medicine, in the periods as reported above was in an effort to comply with that institution's obligations under Section 458.345, Florida Statutes. In late October or early November, 1987, Respondent received a notice from the Petitioner concerning the renewal of the medical license which had been issued on November 22, 1985. Following the receipt of that notice, he executed the necessary paperwork and submitted it to the accountant at the University of Florida who was responsible for paying Respondent's fees for the medical license as an employee of the University of Florida, School of Medicine, within the Department of Orthopedic Surgery. Respondent took no further action to assure that his license was renewed until late March or early April, 1988. It was at that point that the Respondent was made aware that the replica of his medical license that he kept in his wallet reflected an expiration of that license. He made this discovery when attempting to use that replica as a form of identification. At that juncture he reported to Ms. Jeri Dobbs, an employee of the University of Florida, who indicated that paperwork associated with this license may have been destroyed in a fire at Johnson Hall where certain records of the Department of Orthopedic Surgery were kept. Ms. Dobbs' responsibility in the relevant time period under question, encompassed money matters within the Department of Orthopedics. This included the payment of license fees for residents in the University of Florida Department of Orthopedics. The technique was to request a check from the University of Florida and send that check along with the requisite forms to the Department of Professional Regulation. Sometime in November or early December, 1987, a fire occurred in Johnson Hall at the University of Florida. Within that building were found invoices to be paid or checks requested and they were lost in the fire. In November, 1987, Ms. Dobbs had originally requested a check from the finance and accounting office at Johnson Hall to pay for the re-licensure of certain physicians. The names of those physicians are set forth in Respondent's exhibit no. 3, admitted into evidence. The package of paperwork on license renewal related to the named physicians was lost in the Johnson Hall fire. Respondent's name is not found in that list. Nonetheless, the circumstance that occurred with the physicians listed there may have well have occurred to the Respondent and in his conversation in late March or early April, 1988 with Ms. Dobbs he was impressed with the idea that his paperwork on license renewal may have been destroyed as was the situation with those other physicians. The physicians whose names are listed on Respondent's exhibit no. 3 would have had their medical licenses expire on December 31, 1987, as was the case with Respondent's license. In March, 1988, through efforts of Ms. Dobbs, the licenses of those physicians set forth in Respondent's exhibit no. 3 were renewed upon the payment of a $50 reinstatement or penalty fee as required by Petitioner. There is no indication that those persons as listed in Respondent's exhibit no. 3, were ever subject to disciplinary action for practicing medicine with an inactive license as has been the fate of Respondent in the present case, even though it can be fairly inferred that they had been participating as physicians at the University of Florida in the period January 1, 1988 through latter March, 1988 while their medical license had not been renewed before expiration on December 31, 1987. In conversations between Ms. Dobbs and someone associated with the Petitioner, she expressed her concern at having to pay an additional $50 late fee in the face of the circumstance in which records had been lost in the Johnson Hall fire. In this conversation she was not lead to believe that there would be any problem with the practice of those physicians who were on that list found in Respondent's exhibit no. 3. In her testimony, although Ms. Dobbs acknowledges that Respondent's name is not on the list of physicians whose licenses were reapplied for, she also indicates that she could not say for an absolute fact that these names were the only ones whose information on license renewal was lost. Being of the belief based upon his conversation with Ms. Dobbs that the necessary paperwork for renewal had been destroyed in the Johnson Hall fire, Respondent took the initiative to ascertain the appropriate method to rectify the situation of his license renewal. To this end, at approximately the same time period as the discussion with Ms. Dobbs, he spoke with Ms. Faircloth. He explained the circumstances to Ms. Faircloth of his renewal and specifically the idea in which he was persuaded that his renewal papers had been burned up in the fire at the University of Florida. Her instructions to him were that the paperwork would be forthcoming, to fill it out as quickly as possible and that he should not worry that this sort of thing happened all the time. He was not told by Ms. Faircloth that he should not continue in his duties as a resident physician, given the status of his license renewal. Having not heard from Ms. Faircloth within the week of his initial contact with her, he called her a second time. At that point she said that he should have received the materials. A month after the second contact, another call was made from the Respondent to Ms. Faircloth because he had not received the materials. She indicated that by that time the materials should have been received and therefore she was going to send another set of those forms for him to fill out. A further call was made to Ms. Faircloth and she indicated to the Respondent that the forms had been sent out, and sometime in late June or early July, 1988, information concerning the obtaining of his renewed license began to be received by Respondent. Documents pertaining to the activity of gaining a new license may be found within Petitioner's composite exhibit no. 2 admitted into evidence, in particular those portions 2D through 2J. Throughout this process Respondent cooperated and made timely responses to what was asked of him to effectuate these purposes. Finally, effective October 24, 1988, Respondent obtained his renewed license. Throughout this endeavor neither Ms. Faircloth in conversations with Respondent nor anyone else associated with Petitioner indicated that the Respondent should cease his practice pending the issuance of the renewed license. None of the materials that were forwarded to the Respondent for purposes of license renewal had any admonition against his carrying forward his duties as a resident of the University of Florida pending the resolution of this license problem. After returning the necessary materials to obtain his license, Respondent had not heard from the Department of Professional Regulation, so he checked with Jeri Dobbs and was told that the necessary cash had been remitted for renewal. He called someone within the Petitioner's organization and that person confirmed that the check in furtherance of his license renewal fee had been cashed and that it was probably still in the computer that the license had been printed, but probably had not been sent in the mail. According to Barbara Kemp an employee of Petitioner, who has responsibility for processing requests for license renewal, the detailed requirements set forth in Petitioner's composite exhibit 2 are utilized in the instance wherein the license was not renewed in the ordinary period for renewal. Respondent's situation was perceived in that way. Ms. Kemp refers to this as the reactivation of a license and describes this exhibit as being an indication of the materials necessary to reactivate. As Ms. Kemp explained in her remarks, typically the renewal packet is dispatched 60 days prior to the expiration of the license. That would correspond in this instance to 60 days before December 31, 1987. That circumstance, unlike the situation reflected in Petitioner exhibit no. 2 admitted into evidence, does not contemplate the need to document compliance with certain requirements related to license renewal. In the reactivation mode, that documentation as evidenced by items set forth in Petitioner's exhibit no. 2 would be necessary. According to Ms. Kemp, in the instance where there is a belief that the practitioner has been practicing medicine without the benefit of an active license, a memorandum is sent to those persons within the Petitioner's organization who are responsible for considering administrative complaints. This does not usually occur within the first couple of months beyond the period of license expiration. In this instance, that would correspond to the first couple of months beyond December 31, 1987. The reason for not reporting tardiness in license renewal is due to the fact that Petitioner is busy trying to renew a high number of licenses and the computer takes time to catch up and conclude that activity. This describes the time necessary for data to be entered in the computer system. In this instance, Ms. Kemp complained to the investigatory arm of her organization about the Respondent's possible practice without the benefit of a license and that complaint was made on September 16, 1988.
Recommendation Based upon the findings of fact made and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses this administrative complaint. DONE and ENTERED this 13th day of February, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of February, 1990. APPENDIX The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-8 and all of paragraph 9 save the last phrase are subordinate to facts found. The idea of a supposition by the Board of Medicine that Respondent had withdrawn from the residency program and had become licensed is not crucial to the disposition of this case. Paragraphs 10 and 11 are subordinate to facts found. Paragraph 12 is contrary to facts found. Paragraphs 13-17 are subordinate to facts found. Respondents's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 with the exception of the last sentence is subordinate to facts found. The exact whereabouts of the paperwork necessary for renewal was not established with certainty. Paragraphs 11-20 are subordinate to facts found. Copies furnished: Wellington H. Meffert II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara C. Wingo Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The following facts were stipulated by the parties and required no proof at hearing: Petitioner, University Hospital, Ltd., is a Florida limited partnership and is the licensee of University Hospital and University Pavilion Hospital, both located on North University Drive, Tamarac, Florida. Petitioner Sebastian Hospital, Inc., is a Florida corporation, and is the licensee of Sebastian Hospital and SandyPines Hospital. Both hospitals are located on separate premises. Petitioner Haines City HMA, Inc., is a Florida corporation, and is the licensee of Heart of Florida Hospital, Inc. and Palmview Hospital. Both hospitals are located on separate premises. Petitioners timely filed their respective Petitions to determine the invalidity of the proposed rules at issue. Petitioners would be regulated by the proposed rules and are substantially affected parties with standing to challenge the proposed rules at issue. No proof is necessary to prove the standing of these Petitioners. Prior Rule 59C-1.004(2)(i) (the "License Consolidation Rule") required CON application and approval for license consolidations pursuant to Section 395.003, F.S. It was declared invalid in University Hospital, Ltd., et al. v. AHCA, 16 F.A.L.R. 3312 (final order dated July 22, 1994). [This decision is referenced throughout as University Hospital.] Prior to invalidation of the License Consolidation Rule, six CON applicants sought issuance of a single, or consolidated, license to replace former separate licenses held by the same licensee for facilities located on separate premises. Each of these six prior applicants involved a general acute care hospital and a specialty psychiatric hospital. Those applicants resulted in an issuance of CON numbers 7303, 6954, 7712, 7311, 7167, and 7047. Each of those six applications was ulti- mately approved in the form of a single license. When the single licenses were issued, no restrictions were placed on the licensees regarding eligibility for Medicaid reimbursement. As reflected in the respective SAARS, a significant result of approval of each of these applications was that the formerly separately licensed psychiatric hospital became eligible for Medicaid reimbursement for treatment of Medicaid patients. All of these prior applicants had licenses issued and became eligible for Medicaid. Such Medicaid reimbursement was not available to the separately licensed psychiatric facilities prior to issuance of a single, or consolidated, license. Aside from the rules under challenge, there has been no change in pertinent state statutes or rules subsequent to the final order in University Hospital Ltd., v. AHCA 16 F.A.L.R. 3312. After invalidation of the Consolidated License Rule, AHCA's interpretation is that issuance of a single, or consolidated, license for a general acute care hospital and a psychiatric hospital does not result in Medicaid eligibility. Petitioners did not participate in any of the rule workshops conducted on June 22, July 7, and November 2, 1994 or the public hearing held on February 13, 1995. Petitioners did not send in any written comments, questions, or materials, or request an economic impact statement. A holding of the Final Order in University Hospital, was that a Certificate of Need was not required prior to the issuance of a single consol- idated license for multiple premises. University Hospital, 16 F.A.L.R. at 3321. The Agency has no discretion regarding rule- making pursuant to Section 120.535. (Joint Prehearing Stipulation, filed 3/14/95) Approximately eighteen months ago and well before the University Hospital decision, the Agency for Health Care Administration (AHCA) commenced a major rewrite of the hospital license rules that had been promulgated by its predecessor agency, the Department of Health and Rehabilitative Services (HRS). After a series of public workshops, the revisions were noticed in the January 20, 1995, Florida Administrative Weekly. These substantial revisions of rule chapter 59A-3 comprise about fifty pages of the Florida Administrative Weekly. The challenged portions comprise only several paragraphs of the revisions. The challenged portions of the proposed rules are: 59A-3.203 Licensure Procedure. (2) All persons requesting licensure for the operation of a hospital under the provisions of Chapter 395, F.S., shall make application to the Agency, on forms provided, AHCA Form 3130- 8003-January 1995, and AHCA Form 3130-8001-January 1995, and shall receive a regular or provisional license prior to the acceptance of patients for care or treatment. * * * (e) An application for the addition of beds or off-site outpatient facilities to a hospital's license must include: A valid certificate of need or letter of exemption as required by ss. 488.041 - 408.045, F.S., and Approval from the Agency's Office of Plans and Construction. * * * (i) A single license will be issued to a licensee for facilities located on separate premises, upon request of the applicant. The license will specifically state the location of the facilities, their services, and the licensed beds available on each separate premises. Such a license shall also specifically identify the general or specialty classification of hospitals located on separate premises. (6) Each license shall specifically state the name of the licensed operator of the hospital, the class of hospital, and the name and location of the hospital. Any beds in the hospital which are regulated under the certificate of need program, as specified in Chapter 59C-1, F.A.C., shall be listed, including the number of licensed beds by type. The license for hospitals having facilities on more than one premises shall specifically state the location of each facility, their general or specialty classification, their services, and the licensed beds available on each separate premises. * * * Specific Authority 395.003, 395.004, 455.239, F.S. Law Implemented, 395.001, 395.003, 395.004, 395.1005, 408.035, 408.036, 455.239, F.S. History New. (emphasis added) Prior to the decision in the University Hospital case in July 1994, the proposed revisions did not include the requirement that the license for facilities on separate premises identify separately the general or specialty classification of each. That provision was added by the agency because it concluded that when it could no longer require a CON for "consolidated" licenses, then general acute care beds and free-standing psychiatric beds could not be "consolidated" on a single license. It is uncontroverted that the substantial effect of the requirement that each facility retain its prior classification is that a facility classified as a class III (specialty) facility is not eligible for Medicaid reimbursement. The agency agrees that proposed rule is based on, and is compelled by section 395.003(2)(d), F.S., which provides as follows: (d) The Agency shall, at the request of a licensee, issue a single license to a licensee for facilities located on separate premises. Such a license shall specifically state the location of the facilities, the services, and the licensed beds available on each separate premises. If a licensee requests a single license, the licensee shall designate which facility or office is responsible for receipt of information, payment of fees, service of process, and all other activities necessary for the Agency to carry out the provision of this part. (Emphasis supplied). It is immediately obvious from a comparison of the text of the proposed rule and the text of the law implemented that the law does not require that the license state the general or specialty classification for the separate facilities. This distinction was not lost on the agency since it included in its legislative package for the 1995 legislative session a proposed amendment to section 395.003(2)(d), F.S. that would cure the inconsistency by adding the proposed rule language to the statute. (Petitioner's exhibit number 16, p. 25) There is a statute which restricts Medicaid reimbursement for treatment in free-standing psychiatric hospitals. The agency argues that the proposed rules give effect to that statute, section 409.905(5), F.S., which provides, in pertinent part: . . . A licensed hospital maintained primarily for the care and treatment of patients having mental disorders or mental diseases is not eligible to participate in the hospital inpatient portion of the Medicaid program except as provided in federal law. . . . (emphasis supplied). Reliance on Section 409.905(5) is misplaced, however, because it is nowhere cited in the proposed rules as authority or law implemented. Moreover, evidence presented at hearing describes federal policy that when two hospitals are consolidated under one license and have a total capacity that is less than 50 percent psychiatric in nature, the premises are both eligible for Medicaid reimbursement, even though one remains primarily for the treatment of mental disorders. (Petitioners' exhibits number 20-22) The federal policy on Medicaid reimbursement was in effect in 1993, prior to the University Hospital decision and prior to the current version of the proposed rules. Section 409.905(5), F.S. has been in effect since 1991, before the six consolidated licenses referenced in paragraph 1, above, were issued. Section 395.003(2)(d), F.S. has been in effect in its current form at all times material. Nothing in the law has changed to support the agency's contention that, after the University Hospital decision, it can no longer issue a single license with a single license classification for separate premises. No evidence nor specific argument was presented with regard to the alleged invalidity of proposed rule 59A-3.203(2)(e), which on its face relates to the addition of beds or an outpatient facility to a hospital's license. Issues related to that portion of the proposed rule are not the issues invoked in this proceeding with regard to Petitioner's facilities. (See Petitioners' exhibit 26, p. 71, deposition of Tanya Williams)
