Findings Of Fact Petitioner, David U. Ewing-Chow, filed an application for licensure by examination as a medical doctor with respondent, Department of Professional Regulation, Board of Medical Examiners, on February 24, 1984. The application was reviewed and considered by respondent at a meeting on December 2, 1984, and proposed agency action denying the application was issued on January 9, 1985. As grounds for denying the application, the agency stated that: . . . the applicant has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety. See Section 458.311 (3), F.S. Further, the applicant has not graduated from medical school or college as required by Section 458.311(1)(b), F.S. The proposed agency action prompted this proceeding. In his request for a hearing, petitioner challenged the agency's signs, and contended he satisfied both objections raised by the agency. Petitioner first enrolled as a regular medical student in October, 1969 at the University of the West Indies in Kingston, Jamaica. He remained in the school's medical program until he failed the preclinical examination a second time in 1972. Because successful completion of that examination was required to remain in medical school, he withdrew from school and moved to England. There he successfully completed the conjoint preclinical examination administered by the Conjoint Society of Apothecaries Preclinicals in London, England. Having passed that examination, Ewing-Chow was readmitted in October, 1972 to the University of the West Indies as a non-degree seeking student to pursue clinical medical courses to qualify him to take the licensure examination in England. Although he was a special student, Ewing-Chow's curriculum was identical to the coursework required of medical degree seeking students. He completed the program in 1975, but did not receive a medical degree from the university. After completing his medical coursework, EwingChow returned to England where, based upon his medical education, he qualified to take the examination for a License in Medicine and Surgery administered by the Society of Apothecaries of London (Society). To qualify for this examination, one need not graduated from a medical school. The Society is not a school or university, and offers no instruction. Rather, it conducts examinations for a License in Medicine and Surgery, and is described in The World Directory of Medical Schools as a "nonuniversity licensing bod(y)." After passing the examination EwingChow received a "Diploma of Licentiate in Medicine and Surgery" from the Society. The Diploma of Licentiate is not a degree in medicine, but is a title or qualification which allows the individual to "temporarily" register for an internship. A one-year internship is required before one can be issued a certificate of registration by the General Medical Council (Council), a statutory body responsible for registering all medical practitioners in Great Britain. Like the Society, the Council grants no degrees, but merely issues a certificate of registration to qualified physicians. In the case at bar, Ewing-Chow completed a one-year internship program in both Trinidad and the University of West Indies. Thereafter, he was certified in full registration by the Council and was accordingly authorized to practice medicine in the United Kingdom. Full registration is the British equivalent to a license to practice medicine in the United States. He also received a license to practice in the European Economic Community. In addition, he is licensed to practice in Trinidad, Jamaica and Tobago. After spending some thirty months in Trinidad as a government physician, Ewing-Chow moved to Miami, Florida in September, 1980, and enrolled in the three-year residency program in the Department of Family Medicine at Jackson Memorial Hospital. He successfully completed this program in June. 1985 and is now chief resident in the family practice residency program. As such, he is in charge of supervising thirty-six other residents in the program. He is eligible to take the examination for board certification in the family practice specialty, but must first be licensed by the State of Florida in order to take the examination. Ewing-Chow has also submitted his credentials to the Educational Commission for Foreign Medical Graduates (ECFMG), and has passed the examination administered by that body. The evidence clearly demonstrates that Ewing-Chow is capable of safely engaging in the practice of medicine with reasonable skill and safety. This was attested to by the chief of family practice at the University of Miami School of Medicine at Jackson Memorial Hospital and is evident from Ewing-Chow's present responsibilities as chief resident in that program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of David U. Ewing-Chow for licensure as a medical doctor by examination be DENIED. DONE and ORDERED this 26th day of March, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986.
The Issue Whether Petitioner is entitled to sit for the examination for licensure as a physician assistant.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: 1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization ... Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. The Order cited the following four grounds for the denial: The applicant (Petitioner) does not have a medical degree as required by Sections 458.347(b)1.b. and 458.311(1)(f)3.a., Florida Statutes. The applicant has been unable to provide adequate evidence that he was a resident in Florida on July 1, 1990. The applicant has failed to account for all time and activities on his application from July 1981 - May 1982. The applicant has failed to list all employment activities on his application when compared to the Resume of Qualifications he submitted. Petitioner attended medical school at the Universidad Central del Este (UCE) in the Dominican Republic from 1975 to 1981. Petitioner testified that he completed his assigned curriculum and that he participated in graduation exercises. Petitioner did not receive a diploma or a medical degree from UCE because he owed the university for tuition. In response to an inquiry from Respondent, the Dean of Medicine of UCE provided the following information: ... [W]hile it is true that [Petitioner] completed the curriculum of our School of Medicine, he has other requisites to be completed. Among these is an outstanding debt for registration fees at our University. Until this debt is satisfied he cannot be awarded the degree of Doctor of Medicine, nor can any documents be issued. Petitioner's application and the documentation he initially submitted in support thereof did not establish that Petitioner met the residency requirements of Section 458.347(7)(b)1.d., Florida Statutes. The evidence submitted at the formal hearing established that Petitioner was a resident of the State of Florida on July 1, 1990, and at all other times pertinent to this proceeding since that time. Petitioner, in his application for licensure, failed to set forth his activities between July 1981 and May 1982./1 Petitioner has subsequently provided that information to the Respondent. During that time, Petitioner was unemployed and studying for his medical examinations. Petitioner, in his application for licensure, failed to completely set forth his employment history, including his work as a medical health counselor and as a mental health supervisor. His employment history is required by the application form and should have been included as part of his application package. All information pertinent to his employment has now been provided by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application on the grounds that he is not a graduate of a medical school recognized by the World Health Organization. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993.
The Issue The issues presented concern the question of whether Dr. Paul Joseph Rucinski (Petitioner) has completed the prerequisites for standing the license examination of the State of Florida, Department of Professional Regulation, Board of Medicine (Respondent). This examination is known as the FLEX examination. In particular, Petitioner has been denied the opportunity to take this examination based upon the perception held by the Respondent that Petitioner did not complete core clerkship training in internal medicine, one of the prerequisites to undergo the examination session.
Findings Of Fact Petitioner attended medical school at Ross University in the British West Indies and received his medical degree. Consequently, for purposes of license examination in Florida, Dr. Rucinski is considered to be a foreign medical graduate. Part of the medical training in his undergraduate course work was received in the United States. This education was in association with completion of clerkships necessary to obtain his medical degree. An organization known as the Jacksonville Health Education Program, constituted of certain hospitals in the city of Jacksonville, Florida, was providing clerkship training for medical students during the time within which Petitioner received his clerkship training. The Jacksonville Health Education Program (JHEP) was affiliated with the University of Florida School of Medicine and as such was part of that institution's educational program. In this connection, Petitioner was referred to JHEP as an organization which could arrange for his clinical clerkship training. As described in Petitioner's Exhibit 4 admitted into evidence, Petitioner received clerkship training in psychiatry, ob/gyn, surgery, pediatrics, family practice, dermatology, anesthesiology, general surgery, emergency room medicine and critical care, all through JHEP. Respondent takes no issue with the sufficiency of that training to establish credentials for license examination in Florida. This point of view is held because Respondent is convinced that the institutions within which the training in the various specialties was conducted were allopathic institutions. The only contention in this cause arises based upon the Respondent's belief that the clerkship training which Petitioner received in internal medicine was not given in an institution associated with JHEP and did not have allopathic emphasis. Instead, the focus of the training in internal medicine was alleged by the Respondent to be osteopathic. This speaks to core clerkship training the Petitioner received in internal medicine at Jacksonville General Hospital, Jacksonville, Florida, now known as Jacksonville Medical Center. The period of time within which the training was received was November 5, 1982, to January 27, 1983, and again on April 11, 1983, to June 17, 1983. The clerkship in internal medicine was supervised by Dr. Glenn J. Gerber, an osteopathic physician. According to Dr. Gerber, Petitioner successfully completed his core clerkship training in internal medicine as evidenced by the evaluation forms set forth in Petitioner's composite Exhibit 7 admitted into evidence. Although Dr. Gerber is not licensed pursuant to Chapter 458, Florida Statutes, to practice allopathic medicine, he was board certified by the American Board of Internal Medicine in the field of internal medicine effective 1978. This board is a board pertaining to allopathic medicine. Moreover, Dr. Gerber's unrefuted testimony establishes that training in internal medicine for allopathic medical students versus osteopathic medical students does not differ. To his understanding, textbooks do not exist which deal with osteopathic internal medicine separate and apart from allopathic internal medicine. During the time that Dr. Gerber taught at the Jacksonville General Hospital, to include the time of instruction pertaining to Petitioner, other students who sought medical degrees in allopathic medicine were involved in training which he conducted. Dr. Gerber served as the director of clinical education for the Jacksonville General Hospital during the period 1981 through 1984. The nature of the internal medicine training which Petitioner received through Jacksonville General Hospital was under the auspices of an internal medicine service for students as well as residents. The daily functions of the core internal medicine training included daily rounds where patients were met who had been admitted the night before and involvement with patients who were being managed on an ongoing basis. This training included frequent pathology rounds, cardiology rounds almost daily and radiology rounds daily. Typically, different topics were considered which had been assigned the night before. An example would be miocardial infraction. Discussions were entered into on current management and therapy. On October 18, 1976, Jacksonville General Hospital was informed by letter that it had been accepted as a member of the JHEP Consortium. This correspondence was from D. J. Lanahan, president of the JHEP Board of Trustees and appears on the stationery of J. Hillis Miller Health Center, College of Medicine, University of Florida, Jacksonville Division. A copy of the letter is found as Petitioner's Exhibit 10 admitted into evidence. This correspondence does not set forth a circumstance whereby Jacksonville General Hospital is received as a member for purposes of offering core clerkship training in allopathic medicine, nor does it establish a contrary position. On the other hand, Lois Gray, director of medical legal affairs at Jacksonville Medical Center, offered unrefuted testimony that Dr. Gerber held a faculty appointment with JHEP. Petitioner's Exhibit 11 admitted into evidence, which describes the nature of JHEP's affiliation with the University of Florida, J. Hillis Miller Health Center, speaks to the concept of undergraduate medical education but it is silent on the question of Jacksonville General Hospital's involvement in the education of undergraduate medical students and their clinical clerkship training. Respondent's Exhibit 4 admitted into evidence concerns the fact that the Jacksonville General Hospital in the years 1982 and 1983 was associated with the American Osteopathic Association and provided internship programs and residency programs related to osteopathic medicine; however, this excerpt of the yearbook and directory of osteopathic physicians does not exclude the possibility of affiliation with the accrediting organization related to hospitals that provide allopathic care. In fact, Jacksonville General Hospital was recognized as an allopathic facility by the Joint Commission on Accreditation of Hospitals in the relevant time frame. Further, an excerpt of the 1982-83 directory of residency training programs accredited by the accreditation council of graduate medical education, a complimentary copy from the American Medical Association, was offered and received as Respondent's Exhibit 5 admitted into evidence. This document speaks to the provision of residency training by Jacksonville hospitals affiliated with JHEP. It does not include an indication that Jacksonville General Hospital was one of the institutions providing residency training in the Jacksonville, Florida, area in the relevant years. However, it does not speak to undergraduate medical training. Therefore, it does not establish the fact that Jacksonville General Hospital did not offer allopathic medical training in internal medicine to the Petitioner as part of core clerkship training. Finally, Respondent's attempt to introduce the remarks of Dr. Will Neal of the University of Florida, School of Medicine, does not serve to corroborate competent evidence offered by the Respondent on the subject of Jacksonville General Hospital's lack of affiliation with JHEP and failure to provide undergraduate medical training in allopathic medicine. His remarks are hearsay and stand alone and cannot be utilized in fact finding for reasons explained in the conclusions of law. Jacksonville General Hospital, in 1982, had among its active staff, 40 M.D.s and 31 D.O.s. On the whole, Dr. Rucinski is found to have received appropriate allopathic medical training in his core clerkship in internal medicine. Dr. Rucinski is currently undergoing training at the University of Wisconsin, affiliated hospitals program, St. Luke's Hospital, Milwaukee, Wisconsin. This is a hospital that has association with the American Medical Association. Dr. Rucinski is a resident in postgraduate year 3. Dr. Rucinski is interested in general medicine, family practice. As part of his postgraduate training, he has had extensive training in internal medicine which he has successfully responded to. He has not been able to discern differences in the underlying emphasis in the internal medicine training received as a resident in St. Luke's Hospital and that received at Jacksonville General Hospital. Against this background, prior to August 15, 1986, Petitioner made timely application to take the FLEX examination to gain a license to practice medicine in the state of Florida. This examination was to be given December 2- 4, 1986. On November 12, 1986, Dr. Rucinski was invited to appear before the Foreign Medical Graduate Committee of the Board of Medicine. A copy of that invitation may be found as part of Petitioner's Exhibit 6 admitted into evidence. In addition to the invitation, a second item within that exhibit describes the subjects upon which he could be interrogated and makes specific reference to items which could be submitted in furtherance of this session, but these items were not exclusive. This speaks to his passport and visa involved with time periods when he was out of the United States during his medical training. The second page indicated that the Petitioner should be prepared to provide documentation of his physical location for periods of medical education. Petitioner made the appearance on November 21, 1986, and was examined by members of the Foreign Medical Graduate Committee, and it was determined to deny Petitioner's opportunity to stand the FLEX examination based upon the belief held by the committee members that his internal medicine clerkship was osteopathic training and unacceptable. Petitioner was made aware that the committee would recommend to the Board of Medicine that he not be allowed to take the FLEX examination. These remarks were offered at the time of Petitioner's appearance before the foreign medical graduate committee on November 21, 1986. On the next day, the Board of Medicine, in furtherance of the recommendation of the committee, declared Petitioner ineligible to stand examination. On November 24, 1986, Petitioner was advised in writing of the decision of the Board of Medicine. A copy of that exhibit may be found as Petitioner's Exhibit 5 admitted into evidence, and it states that the request to stand examination is denied. It goes on to suggest that an order would be prepared which set forth the reasons for denial. The letter identifies the fact that the Petitioner could then request a hearing pursuant to Section 120.57, Florida Statutes, following receipt of the final order. That final order was entered on February 19, 1987, and may be found as part of Respondent's composite Exhibit 1 admitted into evidence. It indicates that the reason for denial is that the Petitioner had failed to complete allopathic medical education as described in Chapter 458, Florida Statutes, related to the inadequacy, as the Board of Medicine saw it, of Petitioner's core clerkship in internal medicine, in that the training was osteopathic in nature and not allopathic medical education. The Petitioner received a copy of the order of denial in late February 1987. Petitioner took issue with this point of view and petitioned for a formal Section 120.57(1), Florida Statutes, hearing. That petition was received as filed before the Respondent on March 15, 1987. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes. Respondent's Exhibit 4 is admitted into evidence. The proffered testimony of Dr. Will Neal is not accepted as evidence which can lead to factual findings. This determination is made in accordance with Section 120.58, Florida Statutes. Although a reasonably prudent person might expect the individual who is associated with the University of Florida medical school, such as Dr. Neal, would have some understanding of those institutions which are part of the JHEP program, his remarks do not constitute an exception to the proposition that hearsay evidence is not competent evidence. Furthermore, his remarks do not serve to supplement, corroborate or explain otherwise competent evidence. Consequently, they cannot be relied upon in determining relevant facts in this inquiry. In the deposition of Dr. Gerber wherein he attempts to explain the similarities between the core clerkship program in internal medicine at Jacksonville General Hospital and the residency program in internal medicine that he had some involvement with at St. Vincent's Hospital in Jacksonville, Florida, is not accepted, based upon the belief that it is irrelevant testimony. Petitioner, who seeks licensure, has the burden to prove his entitlement to stand the FLEX examination. See Balino vs. Dept. of Health & Rehab. Serv., 348 So.2d 349 (Fla. 1st DCA 1977). To that end, Respondent has accepted his candidacy for licensure with the exception of the question of his training in internal medicine while a medical student. That training must have been allopathic medical education as envisioned by Section 458.331(3), Florida Statutes (Supp. 1986). On balance, Petitioner has carried the burden. He received training in an institution which he was led to believe had affiliation with JHEP, an accepted educational outreach from the University of Florida medical school. The institution where he received internal medicine training and core clerkship was one accredited by the accrediting agency for allopathic hospitals. The training was supervised by an osteopathic physician. Nonetheless, this physician and the Petitioner have established that the nature of training in internal medicine for allopaths and osteopaths at the student level is akin. Moreover, the expertise of Dr. Gerber in internal medicine had been recognized by the board certifying organization related to allopathic internal medicine practice. It is not unreasonable to expect that these credentials could be brought to bear in the training of Dr. Rucinski. Finally, although it does not speak directly to the question of his competence gained through undergraduate medical training at the point in time wherein he sought the opportunity to take the FLEX examination, Dr. Rucinski's successful performance in his residency program in an allopathic hospital in the subject area of internal medicine should allay any fears that he is not a fit candidate to stand examination at this point in time. Respondent, in considering the fitness of the Petitioner to stand license examination in the December 1986 examination session did not act contrary to the purposes of Section 120.60, Florida Statutes. Based upon a consideration of the facts found and conclusions of law reached, it is, RECOMMENDED: That a final order be entered which grants the Petitioner the opportunity to take the FLEX examination for licensure to practice medicine in the state of Florida in accordance with Section 458, Florida Statutes. DONE AND ENTERED this 10th day of September, 1987, at Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-1593 Having considered the fact proposals of the parties, those proposals were accepted with the following exceptions: Petitioner's facts At paragraph 2, the reference to December 21, 1986, is corrected to November 21, 1986. Paragraph 5 is subordinate to facts found. Paragraph 6 is a recitation of a statutory provision. It is not fact finding. Paragraphs 7 through 18 are subordinate to facts found. Paragraph 19 constitutes legal argument and not fact finding. Respondent's facts Paragraphs 1, 2 and 3 are subordinate to facts found. Paragraph 4 is accurate, but it is also noted that Jacksonville General Hospital offered allopathic care as well. Paragraphs 5 and 6 are subordinate to facts found. Paragraph 7 is contrary to facts found. Paragraph 8 is subordinate to facts found. COPIES FURNISHED: Frank M. Gafford, Esquire Post Office Box 1789 34 North Marion Street Lake City, Florida 32056-1789 Patricia V. Russo, Esquire M. Catherine Lannon, Esquire Assistant Attorneys General Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner applied for licensure as a physician through endorsement by application dated May 20, 1986. On October 9, 1986, Petitioner appeared before the Board of Medical Examiners, Foreign Graduate Committee regarding his application for licensure. The Board of Medical Examiners (hereinafter "Board") at its meeting of October 11, 1986, voted to deny his application for licensure by endorsement. The Board stated as grounds for the denial that Petitioner had failed to document that he was a legitimate graduate of a foreign medical school. The Petitioner attended the National Autonomous University of Nicaragua in the country of Nicaragua. The National Autonomous University of Nicaragua requires, under Nicaraguan law, the completion of "social service" prior to receipt of a medical school diploma. The social service requirement involves between 1 and 3 full years of medical service in Nicaragua, usually at or very near to, the war zone. The Petitioner completed all course work required for the Diploma of Doctor in Medicine and Surgery from the National Autonomous University of Nicaragua but completed only eleven months of the social service requirement. The Petitioner left Nicaragua and came to the United States in April 1981. The Petitioner was not awarded his medical diploma because he failed to complete the social service requirement. The Petitioner testified at the final hearing that he failed to complete the social service requirement and fled his native country because of political persecution. The Petitioner stated that he was in fear for his life when he left Nicaragua. In order to take the Federation of State Medical Board's licensure examination (FLEX), Petitioner needed a medical school diploma. While in this country, the Petitioner searched for a medical school that would award him a diploma for his work in Nicaragua. The Petitioner's search included schools in Mexico, Honduras, Puerto Rico and the Dominican Republic. The Petitioner received a favorable response from CIFAS University in the Dominican Republic. CIFAS reviewed the Petitioner's transcripts of completed course work from the National Autonomous University of Nicaragua. Petitioner did not do any additional course work or training through CIFAS. Upon completion of its review of the Petitioner's medical education and training, CIFAS awarded Petitioner a medical degree on January 10, 1983. On February 17, 1983, Petitioner was issued a certificate from the Education Commission for Foreign Medical Graduates. The Petitioner took and passed the FLEX in June of 1983 and received a medical license in the State of Georgia. At the time of filing his application, Petitioner was a permanent resident of the United States.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order granting Petitioner's application for licensure by endorsement. DONE and ORDERED this 25th day of May, 1988 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0979 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: (None submitted). Rulings on Proposed Findings of Fact Submitted by the Respondent: 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 3. Adopted in substance in Finding of Fact 3. 4. Adopted in substance in Finding of Fact 4. 5. Adopted in substance in Finding of Fact 7. 6. Adopted in substance in Finding of Fact 9. 7. Adopted in substance in Finding of Fact 6. 8. Adopted in substance in Finding of Fact 6. 9. Adopted in substance in Finding of Fact 7. 10. Adopted in substance in Finding of Fact 7. 11. Adopted in substance in Finding of Fact 13. 12. Adopted in substance in Finding of Fact 10. 13. Adopted in substance in Finding of Fact 11. 14. Adopted in substance in Finding of Fact 12. 15. Adopted In substance in Finding of Fact 12. 16. Adopted in substance in Finding of Fact 14. 17. Adopted in substance in Finding of Fact 15. COPIES FURNISHED: Alfonso Oviedo-Reyes, Esquire 2100 Coral Way, Suite 403 Miami, Florida 33145 Allen R. Grossman, Esquire Department of Legal Affairs The Capitol LL04 Tallahassee, Florida 32399-1050 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Omar J. Adams, was born in Pahokee, Florida, on July 18, 1950. He attended the University of Florida from 1968 to 1973 and was awarded the degree of Bachelor of Science in chemistry upon graduation. Immediately upon graduation, he spent one year teaching special high school students and in 1974 applied for admission to the medical school of the University of Florida but was not accepted. He also applied to other medical schools and, likewise, was not accepted. He thereafter applied for admission to the Program in Medical Sciences (PIMS) conducted jointly by Florida State University (FSU), Florida A & M University (FAMU) and the University of Florida College of Medicine (UF Med) and was accepted. This program is designed to provide to individuals not accepted to medical school a two-year course of study parallel to that given to first- and second-year medical students enrolled at UF Med, so that if a vacancy occurred in UF Med at the completion of the first two years of academics the PIMS student could step into that vacancy for the third and fourth years of clinical training. After two years in PIMS at FSU and FAMU in Tallahassee, Petitioner transferred to the University of Florida for two more semesters of science courses. UF MED was aware of his efforts to he admitted. In fact, his studies at the University of Florida after the PIMS years were courses taken at UF Med, and UF MED sponsored him for admission to a course in gross anatomy at McHarry College in Tennessee, although he was not enrolled in the medical school as a medical student. Petitioner's grade point average for the PIMS years and the additional studies at the University of Florida was 3.8 out of a possible 4. Petitioner fully expected to be admitted to UF Med in 1977 and was sponsored by that institution to take Part I of the examination of the National Board of Medical Examiners (National Boards), which he took both in June 1977 and June 1979, achieving a passing score each time. However, because an act passed by the United States Congress in 1977 gave preference for funds for admission to U.S. medical schools to U.S. students in foreign medical schools, he again was not admitted to UF MED or to any other medical school in the United States to which he had applied. In the fall of 1977, he heard that some foreign medical schools would permit their students to do their clinical training in the United States. After several months in both the Dominican Republic and Mexico studying Spanish and attempting to gain admission to medical school, he applied to medical school in the Dominican Republic and was provisionally accepted. He chose not to go there, because they would not give him transfer credit for his PIMS work and would have required him to take his third and fourth years of medical school in that country. When Petitioner left the Dominican Republic, he went to Mexico where, in early 1978, he applied for admission to and was accepted at the school of medicine of the Centro de Estudios Universitarios "Xochicalco," A.C. (CEUX), which was incorporated into the Universidad Autonoma de Guerrero (UAG). This school is approved by the World Health Organization. CEUX gave him full credit for the PIMS courses he took in 1976 and 1977 even though he did not take even one day of classes at that institution, which, coincidentally, was not established until December 18, 1977; nor did he ever see any of the institution's classrooms or laboratories. He paid a fee of approximately $5,000 per year for each of the two years work for which he was given credit and was admitted to the school's clinical program conducted out of a sparsely manned office in New York City. Under this program, Petitioner was responsible for arranging his own clinical training, which he did at teaching hospitals in the New York City area during 1978, 1979 and 1980. These hospitals and the medical schools with which they were affiliated, at which Petitioner took his externships, were: Medical, OB/GYN: New York Infirmary (NYU School of Medicine) Neurology, Pediatrics: Elmhurst City Hospital Center (Mount Sinai School of Medicine) Surgery: Beeckman Downtown Hospital (Cornell University Medical College) Cardiology: Downstate Medical Center (SUNY College of Medicine) Radiology, Pneumology: Mount Sinia Medical Center (Mount Sinai School of Medicine) Basic Medical Science Review: College of Physicians and Surgeons (Columbia University School of Medicine) Urology, Psychiatry: Beth Israel Medical Center (Mount Sinai School of Medicine) Otorhinolaryngology, Ophthalmology: Manhattan EET Hospital (Cornell University Medical College) Nephrology: VA Hospital (Bronx) (Mount Sinai School of Medicine) Forensic Medicine: Chief Medical Examiner' s Office (NYU School of Medicine) Family Practice: Brookdale Hospital (SUNY College of Medicine) Family Practice: Lutheran Medical Center (SUNY College of Medicine) Medicine, Dermatology: VA Hospital (Brooklyn)(SUNY College of Medicine) Family Practice: Halifax Hospital (Daytona Beach)(UP School of Medicine) Upon completion of these externships, Petitioner was awarded a Certificate of Completion on June 23, 1980, by the Dean of the School of Medicine at UAG. He was not awarded a diploma because, under the Mexican requirements, he would have had to complete a year of community service in Mexico as a condition precedent to the award of a diploma. He did not desire to do this and instead enrolled in the Fifth Pathway Program conducted-by the Mount Sinai Medical Center (Mount Sinai) in New York. This program, otherwise known as a supervised clinical clerkship, was established at that school in 1975 in accordance with guidelines proposed by the Council on Medical Education of the American Medical Association (AMA) to provide a year of supervised clinical training for students who completed their premedical requirements in the United States, were qualified but where unable to gain admission to a United States-medical school, and had completed the formal requirements of a foreign medical school except for internship and/or social service. The primary aim of the program is to provide an opportunity for superior students from foreign medical schools to benefit from a formal, supervised clinical training experience in an American medical school and to develop and refine their clinical abilities in preparation for obtaining the maximum benefits from internship and residency in the United States. Following completion of the program, the student is awarded a Certificate and is eligible to enter the first year of an AMA-approved graduate training program (internship and residency). Students are also eligible for licensure in those states in which the program is acceptable. Petitioner successfully completed the program in June 1981. Florida accepts this program when accompanied with passage of the ECFMG examination and completion of one year of internship or residency. Over a year prior to entering the Fifth Pathway Program in January 1979, Petitioner took and passed the written examination of the Educational Commission for Foreign Medical Graduates (ECFMG) and, in June 1981, passed the FLEX examination for certification for medical licensure in New York State. As a result, on October 13, 1981, Petitioner was issued license number 148022 to practice medicine and surgery by the State of New York. After getting his New York license, Petitioner decided he wanted a specialty in Family Practice, which requires a three-year residency. He applied to and was accepted in August 1981 into the program at Halifax Hospital in Daytona Beach, Florida, where he is currently enrolled under the supervision of Dr. Bernard Breiter, Director of the Family Practice Residency Program. In this program, Petitioner is subjected to an ongoing system of evaluation by all physicians with whom he works in the residency. Based on input from these evaluating physicians and his own observations of Petitioner, Dr. Breiter has very positive feelings about him and considers him well above average. Petitioner is comparable with all other residents at his same level of experience, all of whom are graduates of American medical schools. In May 1982, Petitioner applied to the State Board of Medical Examiners of Florida (Respondent) for licensure to practice medicine and surgery in Florida by endorsement. On the application, he listed his basis for the application as Federation Licensure Examination (FLEX). He also reflected he had attended the University of Florida from September 1968 to August 1973, which was true, and FSU from September 1975 to June 1976, which was also true. He neglected to reflect his schooling at FSU-FAMU during the 1974-1975 school year by oversight. The grades earned during that period, all As, certainly give no reason for intentional concealment. He also indicated on the application that he attended UAG from January 1976 to June 1980, and that he obtained the degree of Doctor of Medicine from that same university. Both entries are technically incorrect. Petitioner was not enrolled in UAG until 1978, at which time he was given credit for courses as if he had taken them in 1976 and 1977. A Certificate of studies issued by UAG medical school in March 1978 so indicates and was admitted into evidence as Petitioner's Exhibit 4. In addition, Petitioner was not awarded the degree of Doctor of Medicine, or its Mexican equivalent "Titulo," because he failed to perform the one-year community service requirement of the school. That this is a common situation for American graduates of foreign medical schools is recognized in the literature of the Fifth Pathway Program, introduced as Petitioner's Exhibit 10. The application form utilized by the Florida Board of Medical Examiners does not provide answer blocks appropriate to Petitioner's situation. He should have answered accurately and attached a certificate of explanation. He did not do so, however, though his entries, while technically false, are not fraudulent. Though Petitioner did not attend classes at a medical school as a full-time registered medical student, during 1978, 1979 and 1980, he was a full- time registered medical student when he attended his clinical training as outlined in paragraph 7, supra. The parties have stipulated Petitioner is of good moral character and there is no evidence to suggest he is not capable of safely engaging in the practice of medicine.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Board of Medical Examiners issue Petitioner a license to practice medicine in Florida by endorsement. RECOMMENDED this 22nd day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1983. COPIES FURNISHED: Edward F. Simpson, Jr., Esquire Post Office Box 305 Ormond Beach, Florida 32075 John E. Griffin, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Ms. Dorothy Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine and surgery based on the violations of Section 458.331(1), Florida Statutes, alleged in the Administrative Complaint filed in this proceeding.
Findings Of Fact The following paragraphs of the findings of fact submitted by the Respondent have been accepted and included in the findings of fact in this Recommended Order at least in substance and in most instances in their entirety. Editorial modifications have been made in some instances in the interests of accuracy and clarity; as well as when consolidating similar proposals submitted by both parties: 1, 2, 3, 4, 15, and 17. Paragraph 5 is rejected as constituting argument rather than proposed findings of fact. Paragraph 6 is rejected as constituting primarily argument about the credibility of witnesses rather than proposed findings of fact. To the extent findings are proposed in this paragraph, they are rejected as subordinate. The first two sentences of paragraph 7 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. The last sentence of paragraph 7 is accepted. The first five sentences of paragraph 8 are accepted. The last two sentences of paragraph 8 are rejected as constituting legal argument and/or subordinate facts. Paragraphs 9 and 10 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. The substance of the first three sentences of paragraph 11 is accepted. The last two sentences of paragraph 11 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. Paragraph 12 is rejected as for the most part constituting argument rather than proposed findings of fact. To the extent findings are proposed; they are rejected as subordinate. With the exception of the last sentence; all of paragraph 13 is rejected as for the most part constituting argument rather than proposed findings of fact. The substance of the last sentence of paragraph 13 is accepted. The fourth sentence of paragraph 14 is accepted with the deletion of the last clause. The remainder of paragraph 14 is rejected as constituting argument or as proposing irrelevant and/or subordinate facts. Paragraph 16 is accepted in substance, but only as to when and where the Respondent and Vicente met and as to what Vicente told the Respondent he was doing. Paragraph 18 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings. Paragraph 19 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings. Further, the implications of the arguments are rejected as being contrary to my resolution of credibility issues. The substance of the first two sentences of paragraph 20 is accepted. The remainder of paragraph 20 is rejected as irrelevant commentary about testimony rather than proposed findings on a material issue. Paragraphs 21, 22, and 23 are rejected as constituting argument rather than proposed findings of fact.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Medical Examiners enter a Final Order in this case dismissing all charges against the Respondent, Roberto Cuesta, M.D. DONE AND ORDERED this 12th day of March, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1986. COPIES FURNISHED: Leonard Sussman, Esquire 7195 S.W. 47th Street Suite #101 Miami, Florida 33155 Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. By way of preface to the specific rulings which follow, I feel constrained to make the following observations regarding three of the principal witnesses in order that the parties may more clearly understand the basis for certain of the findings of fact. With regard to conflicts between the testimony of the Respondent and the witness Carlos Ramirez, I have generally tended to credit the testimony of the Respondent, largely on the grounds that the Respondent's version was more consistent with other evidence. Further, I found the Respondent to be sincere, candid, accurate, and honest in his testimony. Accordingly, I have given a great deal of weight to the Respondent's testimony. I found the witness Armando R. Vicente to be otherwise. Accordingly; I have given very little weight to Mr. Vicente's testimony except to the extent that it was corroborated by other reliable evidence or constituted admissions against interest.
The Issue The issue presented is whether Petitioner's application for licensure as a physician by examination pursuant to Section 458.311(8), Florida Statutes, should be granted.
Findings Of Fact Petitioner attended medical school in Cuba from September 1978 through July 1984. In that country, the academic year commences in September and ends in July. The medical school program in Cuba is a six-year curriculum which is divided into three phases, with each phase lasting two years. Phase I involves the study of normal structures and functions of the human body (basic science courses); Phase II involves the study of pathological structures and functions (clinical rotations in hospitals); and Phase III involves integral medical care. Clinical rotations continue through the first half of Phase III, the student's fifth year in medical school. During the second half of Phase III, the medical student undertakes a rotating internship in four disciplines or a vertical internship in an individual discipline. The four disciplines are internal medicine, pediatrics, obstetrics and gynecology, and surgery. The student must pass a theoretical and practical examination in each discipline in order to proceed to the next rotation. After the medical student successfully completes each Phase, including the internship, the student is awarded the degree of Doctor en Medicina. During Phase III, instruction is given in the form of lectures, small group seminars, individual instruction, practical training, and problem-oriented instruction. Students rotate to different teaching hospitals and polyclinics. At the teaching hospitals, students review clinical records with the principal professors and discuss, as a group, patient symptoms, diagnoses, and treatment. The polyclinics are neighborhood clinics emphasizing preventative medicine. While students are working at the polyclinics, they are not members of the staff; rather, the staff doctors supervise and consult with the medical students rotating through the various polyclinics. A medical student graduates after completion of the sixth year's curriculum without the necessity of taking a written examination. To practice medicine in Cuba, however, it is necessary for the medical school graduate to obtain a license and register with the national health registry. Upon registering, the physician receives a medical card, which carries the picture and signature of the physician. Petitioner completed a rotating internship from September 1983 through July 1984 as part of her medical education. She was assigned to a physician/specialist in each field of study during her internship rotation. She examined patients in front of her fellow students and/or the professor. She participated in discussions regarding pathology or symptoms, particular diagnoses, and appropriate treatments. She interviewed patients, performed physical examinations, and ordered laboratory tests if indicated. She did not participate in surgical procedures during the surgical rotation of her internship. Although Petitioner completed her medical school curriculum in July 1984, she did not receive a diploma. She did not register with the national registry and, therefore, did not receive a medical card. In September 1984 Petitioner left Cuba and went to Venezuela. Petitioner offered no evidence as to her activities from July 1984 when she completed her medical school curriculum until September 1984 when she left Cuba. Petitioner has taken the examination offered by the Educational Commission for Foreign Medical Graduates once, but she did not receive a passing grade on that examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure pursuant to Section 458.311(8), Florida Statutes. DONE and ENTERED this 22nd day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1, 4, 5, and 5 [sic] have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the evidence in this cause. Respondent's proposed findings of fact numbered 2-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1 and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. COPIES FURNISHED: Frank Valladares, Esquire 2955 Southwest 8th Street Suite 204 Miami, Florida 33135 Gregory A. Chaires, Esquire Christopher E. Butler, Legal Intern Office of the Attorney General Suite PL01, The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Petitioner, Immaculate Espejo Asuncion, of St. Paul, Minnesota, filed an application with Respondent, Board of Medical Examiners, on September 21, 1982, for licensure by endorsement to practice medicine. (Testimony of Petitioner, Joint Exhibit No. 1) On March 7, 1983, Respondent issued a Notice of Intent to Deny Endorsement Licensure on the grounds that Petitioner had not obtained a 75 percent FLEX weighted average on the licensure examination of the Federation of State Medical Boards of the United States, Inc., as required by Rule 21M- 29.01(2), Florida Administrative Code, and was not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement, as required by Section 458.313(1)(d), Florida Statutes. Petitioner thereafter requested a hearing on the proposed denial of her application. (Testimony of Faircloth, Joint Exhibit No. 1) Petitioner was licensed to practice medicine in the state of Minnesota in 1978. She obtained such licensure by satisfactorily passing the clinical science and clinical competence portions of the FLEX examination, and by successfully completing a basic sciences examination administered by the Minnesota State Board of Examiners. (Testimony of Petitioner, Joint Exhibit No. 1) Petitioner is a graduate of a foreign medical school and is therefore not eligible to take the examination of the National Board of Medical Examiners. The alternate method of obtaining licensure by endorsement is by certification through licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). This examination has three parts and is taken over a period of three days. The three parts of the examination are basic science, clinical science, and clinical competence. The scores on the three parts are averaged under a formula to produce a weighted average score. Respondent's Rule 21M-29.01(2), Florida Administrative Code, requires that an applicant have a FLEX weighted average of 75 percent from one complete sitting on the examination. Petitioner took only the clinical science and clinical competence portions of the examination and therefore did not obtain a certified FLEX weighted average score. The Minnesota basic sciences examination taken by Petitioner was not the same basic sciences examination administered as part of the FLEX examination. (Testimony of Faircloth, Joint Exhibit No. 1)
Recommendation That Respondent enter a Final Order denying Petitioner's application for licensure by endorsement. DONE and ENTERED this 16th day of June, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1983. COPIES FURNISHED: Immaculate Espejo-Asuncion, M.D. Dorothy J. Faircloth 80 Battle Creek Place Executive Director St. Paul, Minnesota 55119 Board of Medical Examiners 130 North Monroe Street John Griffin, Esquire Tallahassee, Florida 32301 Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Petitioner meets the requirements for licensure by endorsement pursuant to section 458.313, Florida Statutes (2013), and whether the Board’s interpretation of section 458.311(3), Florida Statutes, is an unadopted rule in violation of section 120.54(1), Florida Statutes (2013).
Findings Of Fact Based upon the stipulations of the parties and the documentary evidence presented, the following facts are found: Petitioner, Leon Rawner, M.D., is a licensed medical doctor in the state of Wisconsin and an applicant for licensure as a medical doctor by endorsement in Florida. The Florida Board of Medicine is the agency charged with the licensing and regulation of allopathic medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Applicants for licensure by endorsement must meet the requirements specified in section 458.313. Those requirements include meeting the qualifications identified in section 458.311(1)(b)-(g) (alternative one) or section 458.311(1)(b)-(e), (g), and (3) (alternative two). Petitioner is over 21 years of age, and has submitted a set of fingerprints on a form and under procedures specified by the Department of Health, along with a payment in an amount equal to the costs incurred by the Department of Health. Petitioner has successfully passed the required criminal background screening. Petitioner’s application for licensure by endorsement demonstrates that he is licensed to practice medicine in another jurisdiction, the state of Wisconsin, and that he has been active in the practice of medicine for at least two of the four years immediately preceding the application. Petitioner has a clean record in his current medical practice in Wisconsin and is not under any investigation in any jurisdiction for an act or offense which would constitute a violation under section 458.331, and has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to section 458.331. Petitioner has completed the equivalent of two academic years of pre-professional, postsecondary education, as determined by rule of the Board, which included, at a minimum, courses in anatomy, biology, and chemistry prior to entering medical school. Petitioner received a bachelor’s degree from Brandeis University, an accredited United States university. Petitioner has passed the appropriate medical licensure examinations, the United States Medical Licensing Examination, Step-1, Step-2, and Step-3. Petitioner holds an active, valid certificate issued by the Educational Commission for Foreign Medical Graduates (ECFMG) and has passed the examination used by the Commission. In 2006, Petitioner graduated with a degree of Doctor of Medicine from American University of the Caribbean School of Medicine. Petitioner graduated from an allopathic foreign medical school (American University of the Caribbean School of Medicine) which is recognized by the World Health Organization. Petitioner completed all of the formal requirements for graduation from American University of the Caribbean School of Medicine. Petitioner’s application for licensure demonstrates that he has completed the academic year of supervised medical training prior to graduation as required under section 458.311(3)(d). Petitioner did not graduate from an allopathic medical school or allopathic college recognized and approved by an accrediting agency recognized by the United States Office of Education. Petitioner did not graduate from an allopathic medical school or allopathic college within a territorial jurisdiction of the United States recognized by the accrediting agency of the governmental body of that jurisdiction. Petitioner is not a graduate of an allopathic foreign medical school registered with the World Health Organization and certified pursuant to section 458.314, Florida Statutes, as having met the standards required to accredit medical schools in the United States or reasonably comparable standards. Petitioner has not completed an approved residency or fellowship of at least two years in one specialty area. Petitioner’s application for licensure demonstrates that he does not meet the postgraduate training requirements under section 458.311(1)(f)3. Petitioner completed one year of residency training in the Internal Medicine Program at Mt. Sinai-Elmhurst Hospital Center, Queens, New York. Besides the residency training program at Mt. Sinai– Elmhurst Hospital Center, Queens, New York, Petitioner has not completed any other residency or fellowship training. Petitioner does not have two years of any residency or fellowship training which can be counted toward regular or subspecialty certification by a board recognized and certified by the American Board of Medical Specialties. Since January 24, 2011, Dr. Rawner has been practicing medicine in Wausau, Wisconsin, as a staff physician with Knee Pain Solutions Center. Accordingly, he has been in the active practice of medicine for the two years preceding his Florida application. Dr. Rawner submitted his application for licensure by endorsement on March 13, 2013. Supplemental documentation was filed with the Board by letter dated March 18, 2013. In that letter, Dr. Rawner expressly stated that he was relying on the second alternative for establishing licensure by endorsement, which does not include the requirements identified in subsection 458.311(1)(f). On April 3, 2013, the Board requested additional information, and in response, Dr. Rawner provided a copy of his undergraduate degree and information related to his one year of supervised medical training. Other information requested in the April 3, 2013, letter was sent directly to the Board office by the appropriate agencies, including an official United States medical examination transcript, indicating that Dr. Rawner passed USMLE Steps I, II, and III; a letter from the residency program director, indicating that Dr. Rawner completed one year of residency training; confirmation from the Wisconsin Medical Board confirming his current, valid medical license in the state of Wisconsin; an American Medical Association (AMA) profile letter; and Dr. Rawner’s fingerprints and clear background check. Program Operations Administrator Chandra Prine notified Dr. Rawner by letter dated June 26, 2013, that he was required to appear before the Credentials Committee of the Board. The purpose of the appearance was to discuss: Failure to meet the training requirement pursuant to section 458.313(1)(a), 458.311(1)(f)3.c., Florida Statutes. Failure to complete an academic year of supervised clinical training pursuant to section 458.311(3)(d), Florida Statutes. Dr. Rawner appeared before the credentials committee of the Board of Medicine on August 1, 2013. The committee recommended that his license be denied. On August 22, 2013, the Board of Medicine issued a Notice of Intent to Deny Licensure, stating that it intended to deny Dr. Rawner’s application because Dr. Rawner did not meet the requirements of section 458.313(1), which requires an applicant to meet the qualifications outlined in either section 458.311(1)(b)-(g) (alternative one), or in section 458.311(1)(b)- (e), (g) and (3) (alternative two). The notice stated that with respect to alternative one, Dr. Rawner did not meet the requirements of section 458.311(1)(f)3., because he had not completed an approved residency or fellowship of at least two years in one specialty area. With respect to alternative two, the Board determined that Dr. Rawner did not meet the requirements of section 458.311(3)(c) because, in the Board’s view, the section was inapplicable to Dr. Rawner because he had completed all requirements of the foreign medical school, with none outstanding, and did not meet the requirement of (3)(d) because he had not completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association. Dr. Rawner filed a Petition for Administrative Hearing with respect to the Notice of Intent to Deny, and the matter was reconsidered at the credentials committee’s meeting on October 3, 2013. The credentials committee voted to reconsider the application based on the issues presented in the Petition. On October 22, 2013, the Board issued an Amended Notice of Intent to Deny Licensure. With respect to alternative two, in the Amended Notice, the Board stated: [t]he application file reveals that Dr. Rawner fails to meet subsection (3) for the reasons set forth below. Subsection (3) provides: Notwithstanding the provisions of subparagraph (1)(f)3., a graduate of a foreign medical school need not present the certificate issued by the Educational Commission for Foreign Medical Graduates or pass the examination utilized by that commission if the graduate: Has received a bachelor’s degree from an accredited United States college or university. Has studied at a medical school which is recognized by the World Health Organization. Has completed all of the formal requirements of the foreign medical school, except the internship or social science requirements, and has passed part I of the National Board of Medical Examiners examination or the Educations Commission for Foreign Medical Graduates examination equivalent. Has completed an academic year of supervised clinical training in a hospital affiliated with a medical school approved by the Council on Medical Education of the American Medical Association and upon completion has passed part II of the National Board of Medical Examiners examination or the Educational Commission for Foreign Medical Graduates examination equivalent. Subpart (3)(c) provides in relevant part all of the formal requirements of the foreign medical school, except the internship or social service requirements, and has passed certain examinations. A plain reading of this subpart is that the foreign medical school has an internship or social service requirement and that the internship or social service requirement has not been completed. The application file demonstrates that Dr. Rawner graduated in June, 2006, with a degree of Doctor of Medicine from the American University of the Caribbean School of Medicine. Thus, subpart (3)(c) is inapplicable to Dr. Rawner, because the application file reveals that he completed all of the formal requirements of the foreign medical school and there are no outstanding or pending internship or social service requirements. Based on the foregoing, the Board finds that the Applicant has not demonstrated that he meets the requirements for licensure by endorsement set forth in Section 458.313(1)(a), Florida Statutes. The Amended Notice no longer listed failure to complete an academic year of supervised clinical training as a basis for the denial of Dr. Rawner’s application. There is no persuasive evidence presented that Respondent’s interpretation of the requirements of section 458.311, Florida Statutes, as it applies to this case, is a statement of general applicability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order approving Leon Rawner, M.D.’s application for licensure by endorsement. DONE AND ENTERED this 28th day of April, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2014. COPIES FURNISHED: Donna C. McNulty, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Amy W. Schrader, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302 Allison M. Dudley, Executive Director Board of Medicine Department of Health Division of Medical Quality Assurance Boards/Councils/Commissions 4052 Bald Cypress Way Tallahassee, Florida 32399 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Findings Of Fact The Petitioner holds a Bachelor of Science degree in microbiology from Gujarat University in India. He has also worked in a master's program in medical microbiology as well as taken courses in zoology at Maharashtra University in Bombay, India. Since then he worked from 1970 through 1974 in various laboratory technologist capacities at a medical laboratory as well as at several hospitals in India. Since coming to the United States he has worked at Doctors Hospital in Hollywood, Florida, apparently working in all his presently attained specialties. While in India, the Petitioner worked not only as a medical technologist, but as a supervisor and director of medical technologists as well during the years above-mentioned and up through the early portion of 1980. He began working in that capacity at Doctors Hospital in Hollywood in May of 1980. The Petitioner filed his application for licensure in the field of cytology on February 3, 1981. After review, the Respondent denied the application by letter of February 6, 1981, indicating that, as described above, the required educational requirements for licensure had not been met. The Respondent timely requested a hearing, and at the hearing he presented evidence as outlined above of his experience in the various fields of medical technology. He has a keen interest in pursuing a career in cancer research based upon his family history involving a number of family members who were cancer victims, as well as the fact that medicine is his family's traditional profession. He has set a goal of acquiring specialties in all the fields of medical technology with a view toward working in the area of cancer research and research in extending the human life span. The Petitioner presented evidence, with the stipulation of the Respondent, in the form of a letter from the General Secretary of the Indian Red Cross Society attesting to his position as supervisor of a blood bank in India, as well as one from an Indian blood bank attesting to his ability in the area of hematology. There is no question, however, and the Petitioner ultimately conceded, that he does no have the required educational course work approved by the Council on Medical Education of the American Medical Association, th required internship, nor has he taken the US Public Health Service proficiency examination, all of which are prerequisites to licensure as a medical technologist in the specialty of cytology. The Petitioner's testimony establishes that although hi past experience and education entitled him to licensure in the areas of specialty described above, he was unaware when he applied that these requirements had to be met before he could be licensed in cytology, especially in view of the fact that he had worked in that field extensively during his experience in India. The Petitioner expressed a willingness to immediately enroll in an internship program apparently offered at Jackson Memorial Hospital in Dade County in the field of cytology, and there has been shown to be no legal impediment to his licensure in this field once he completes the educational requirements embodied in the above rule.
Recommendation Having considered the evidence in the record, the candor and demeanor of the witnesses and the arguments of the parties, it is therefore RECOMMENDED: That the application of Kiran Kumar M. Upadhyaya for licensure as a clinical laboratory technologist in the specialty of cytotechnology be denied without prejudice to the Petitioner's renewing his application for licensure when he has complied with the requirements of Rule 10D-41.25(11)(a) and (b) Florida Administrative Code. DONE AND ENTERED at Tallahassee, Florida, this 7th day of August, 1981. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981. COPIES FURNISHED: Kiran Kumar M. Upadhyaya 7610 Sterling Road Apartment C-106 Hollywood, Florida 33034 Harold L. Braynon, Esquire District Ten Legal Counsel Department of HRS 800 West Oakland Park Blvd. Ft. Lauderdale, Florida 33311
