The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Gerardo Hevilla, completed the application for licensure by endorsement and submitted all degrees, test results, certificates, recommendations, and other documents required by law to be considered for licensure by endorsement as a medical doctor in Florida. The degrees, test results, recommendations and other documents submitted by Petitioner are authentic. Petitioner obtained a doctor of medicine degree from the Universidad Nacional De Rosario in Argentina on July 1, 1980. Universidad Nacional De Rosario Medical School (School) is a medical school duly listed by the World Heath Organization. Graduates of the School are eligible to seek medical licensure in Florida by endorsement pursuant to the provisions found in Section 458.313, Florida Statutes, and the rules and regulations promulgated by the Board of Medicine (Board). On November 20, 1985, Petitioner satisfied the requirements of the Educational Council on Foreign Medical Graduates (ECFMG) and was issued ECFMG certificate no. 339-394-9. Petitioner obtained a passing score on the Federated Licensing Examination (FLEX) within 10 years immediately preceding his application for licensure by endorsement in Florida. Petitioner successfully completed one year of post- graduate training at Lincoln Medical and Mental Health Center as a resident in general surgery. Petitioner has satisfied all preliminary requirements of the Board to be considered for licensure by endorsement. Petitioner came to Florida in April, 1981. At that time he did not speak English and, therefore, was not able to pass the English portion of the ECFMG examination. In order to learn English, he enrolled at Miami High School. While enrolled at the high school, Petitioner volunteered his services to a clinic located approximately two blocks from the school. Petitioner worked at this clinic, LeGran Familia Clinic (Clinic), from 1982 until 1984, while he attempted to learn English. Since many of the doctors and patients at the Clinic spoke Spanish, Petitioner did not have difficulty. The Clinic had 20-22 licensed physicians on staff during the time Petitioner worked there. During the time Petitioner worked at the Clinic, he was primarily under the supervision of Dr. Mirabal. According to Dr. Mirabal, Petitioner was a brilliant, though ambiguous, physician. Petitioner did not represent himself to patients as a physician but was responsible for taking vital statistics, patient histories, and transcribing Dr. Mirabal's dictation. A licensed physician was present at the clinic at all times during which Petitioner performed these services. Subsequently, the Clinic came under investigation for Medicaid fraud. Petitioner was named as one of several defendants in the criminal prosecution. This charge was later dismissed by the prosecuting State Attorney and is not claimed as a basis for the denial of Petitioner's application for licensure. A second charge, the unauthorized practice of medicine, was alleged against Petitioner in State of Florida v. Gerardo Hevilla, Dade County Circuit Court, Criminal Division, case no. 84-8608. Initially, Petitioner pled not guilty to this charge. On May 3, 1985, Petitioner changed his plea to nolo contendere based upon a representation by the State Attorney to the trial judge that the Department of Professional Regulation had been contacted and had agreed that such plea would not be used against Petitioner in his future licensing efforts. This representation was made on the record and is a part of the plea colloquy. Prior to this presentation, Petitioner had refused, and intended to continue to refuse, to change his plea because of his concern that such a plea would adversely affect his ability to become licensed. The estimated cost to defend the criminal case exceeded $25,000. Petitioner accepted the negotiated plea as a financial concession only after the assurances were given that it would not affect his ability to become licensed. In January or February, 1984, Petitioner became employed at the South Florida Medical and Surgical Center (Center). He remained associated with the Center until June, 1986. While at the Center, Petitioner worked as a surgical assistant and helped the licensed surgeons as they directed. Petitioner did not treat patients independently of the licensed doctors and did not hold himself out as a licensed physician. He told one patient, Zoraida Wong, that he was a student. Petitioner assisted Dr. DeGeronimo and Dr. Alexander at the Center. These doctors found Petitioner to be competent, skilled, and a good worker. In fact, Dr. DeGeronimo was so pleased with Petitioner's work that he employed him at his private office until June, 1986. The work performed by Petitioner at the Center and with Dr. DeGeronimo consisted of setting up the operating area, ordering supplies, assisting in surgery by wiping blood, holding retractors, or cutting stitches, and bandaging wounds. All work was done under a licensed physician's supervision. From June, 1986 until July, 1987, Petitioner performed a one year residency at the Lincoln Medical Hospital. During this period, Petitioner was supervised by Drs. Stahl, the program director, and Kazigo, an associate professor. According to these physicians, Petitioner is qualified for licensure, possesses the requisite knowledge and skill, and successfully completely the residency program. Following the completion of his residency, Petitioner returned to Miami and is employed again as an assistant to Dr. DeGeronimo in his plastic surgery practice. Petitioner did not perform facial plastic surgery on the patient, Zoraida Wong. Petitioner did not withhold facts regarding his criminal plea from the Board.
Recommendation Based on the foregoing, it is RECOMMENDED: That The Board of Medicine enter a final order approving Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 30th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. 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 30th day of December, 1987. APPENDIX TO RECOMMENDED ORDER RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: The first sentence in Paragraph 1 is accepted. With regard to the sentence, that portion which alleges Petitioner took courses at the University of Miami is accepted the rest is rejected as beyond the scope of evidence presented or irrelevant to these proceedings. Paragraph 2 is accepted as to all parts. With regard to paragraph 3A. with the exception of the reference to full-time study of English it is accepted. The record does not conclude whether or not Petitioner was in school full-time, he did enroll at Miami High School to learn English so to that extext it is accepted, otherwise rejected as not supported by the record. Paragraphs 3B-D are accepted. Paragraph 4 is accepted. Paragraph 5A. is accepted. The first sentence and last sentence of the first paragraph of paragraph 5B are accepted; the remainder of the first paragraph is rejected as irrelevant, immaterial, not supported by the record or speculation. The second, third and fourth paragraphs of Paragraph 5B are accepted. The first paragraph of SC is accepted. The second paragraph of SC is rejected as irrelevant; the Board has not claimed the allegations relating to the alleged Medicaid fraud were a basis for denial of Petitioner's license. The first three sentences of the first paragraph of Paragraph 6 are accepted. The remainder of the first paragraph is rejected as a recitation of testimony, irrelevant, or unsupported by the record. The second paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The third paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The fourth paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. With regard to these paragraphs, see finding of fact which concludes Petitioner did not operate on the patient Wong. Petitioner's testimony, Dr. DeGeronimo's, and Urquiza's testimony were deemed credible. Dr. Garcia-Lavin and Wong were not. The fifth paragraph of Paragraph 6 is rejected as argument, but as to facts therein see explanation in p. 13 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-11c are accepted. The first sentence of paragraph 12 is accepted. The remainder of paragraph 12 is rejected as contrary to the weight of credible evidence. Petitioner was not eligible to take the residency until he had mastered English to a sufficient level to pass required examinations. Petitioner's explanation for the period was acceptable. Paragraph 13 is accepted. Paragraph 14 is rejected as contrary to the credible evidence, argument or irrelevant. Petitioner is found to be credible. Paragraph 15 is rejected as contrary to the evidence, argument or irrelevant. Paragraph 16 is rejected as irrelevant, unsupported by the credible evidence or argument. Paragraph 17 is rejected as irrelevant or argument. That the Department did not actually pledge to hold Petitioner harmless by reason of the plea is not a disputed issue Petitioner had a reasonable basis for believing that to be the case; however, and was induced to change his plea on that basis. Paragraph 18 is accepted but is irrelevant; see p. 7 above. The first three sentences of paragraph 19 are accepted. The record does not disclose how many licensed physicians may performed surgery at the Center; therefore the fourth sentence is rejected. The record does support a finding that Drs. Alexander, DeGeronimo, and Garcia-Lavin worked there and that the facility only used one surgical room. Paragraph 20 is rejected as irrelevant to the issues of this case. Paragraph 21 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues of this case. Paragraph 22 is rejected as irrelevant, immaterial, contrary to the evidence or unnecessary to the resolution of the issues of this case. The first two sentences of paragraph 23 are accepted, the remainder is rejected as contrary to the credible evidence, irrelevant, or immaterial to the resolution of the issues of this case. Paragraphs 24-26 are rejected as contrary to the weight of the evidence, irrelevant or immaterial to the resolution of the issues of this case. It is possible that Petitioner remained associated with the Center and also worked for Dr. DeGeronimo. The testimony of the three (Petitioner, Alexander, and DeGeronimo) does not conflict. COPIES FURNISHED: Rodney W. Bryson Bryson & Berman, P.A. Suite 219 8525 N.W. 53rd Terrace Miami, Florida 33166 Ann Cocheu Assistant Attorney General Department of Legal Affairs Suite 1603, 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 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue At issue in this proceeding is whether petitioner's application for a medical license by endorsement should be approved.
Findings Of Fact The Findings of the Facts of tbe Recommended Order are adopted by the Board of Medicine as being based on competent substantial evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered certifying petitioner's application to the Department of Professional Regulation, for licensure by endorsement with, should the Board be persuaded that such is appropriate, placement of petitioner on probation for such term and subject to such conditions as the Board may reasonably specify. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of April 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April 1991.
The Issue The issues presented here are based upon an Administrative Complaint filed by the Petitioner against the Respondent seeking the revocation, suspension, or other disciplinary action against the Respondent, and his license to practice medicine in the State of Florida. Count I to the Administrative Complaint accuses the Respondent of making misleading, deceptive, untrue and fraudulent representations in obtaining his license to practice medicine in the State of Florida. It is further contended that Respondent has not and cannot demonstrate that he graduated from medical school, and alleges that Respondent cannot demonstrate that he has met the minimal medical education, training and experience necessary for licensure by the Petitioner. Based upon these allegations, Respondent has purportedly violated Subsection 455.1201(1)(a), Florida Statutes (1977), by failing to demonstrate qualifications and standards for licensure contained in Chapter 455, Florida Statutes, or the rules and regulations of the Board of Medical Examiners. Count II, utilizing the same factual basis as has been alleged in the initial count, accuses the Respondent of violating Subsection 455.1201(1)(b) , Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. Count III accuses the Respondent, based upon the aforementioned facts, with violating Subsection 458.1201(1) Florida Statutes (1977), by engaging in unethical, deceptive or deleterious conduct or practice harmful to the public. Count IV is based upon the facts as related in Count I and asserts that Respondent has violated Subsection 455.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, negligence or willful misconduct. Count V, utilizing the facts related in Count I, alleges that Respondent has violated Subsection 455.327(2)(c), Florida Statutes (1951), and thereby violated Subsection 458.331(1)(x), Florida Statutes (1981), by violating a provision of Chapter 455, Florida Statutes. Finally, Count VI, asserting the facts as discussed herein, alleges that Respondent has violated Subsection 455.331(1)(a), Florida Statutes (1951), by attempting to obtain and obtaining a license to practice medicine by fraudulent misrepresentations CASE HISTORY On September 24, 1981, the Petitioner filed the Administrative Complaint against the Respondent which is the subject of this proceeding and which is referred to in summary fashion by the Issues statement to this Recommended Order. Subsequently, Respondent requested a hearing in this cause on November 11, 1981, by indicating, in substance, that he disputed the allegations as contained in the Administrative Complaint. On that same date, Respondent, through counsel, answered the Administrative Complaint. This answer was made a part of the record in the course of the final hearing and is being forwarded with the Recommended Order in this action. On November 30, 1981, the Division of Administrative Hearings received the case from Petitioner, the Petitioner having requested the Division to conduct a formal hearing in this matter. On December 3, 1981, Respondent's initial counsel withdrew from representation of Respondent. Respondent subsequently obtained the assistance of his present counsel, Rodney Smith, Esquire, and a final hearing was conducted on March 9, 1982, in keeping with Subsection 120.57(1), Florida Statutes. Petitioner's presentation consisted of testimony by Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, State of Florida. Petitioner also offered seven (7) items as evidence. All those items, with the exception of Nos. 5 and 6, have been received. Respondent gave testimony and presented as witnesses Edward M. Crawford, President, High Springs, Florida, Chamber of Commerce; Lorna J. Peters, resident, High Springs, Florida; Leslie Ann Morgan, X-Ray Technologist in the office of Respondent; Angela Anderson, employee of Respondent; Mireya Braga, Respondent's wife; Lacey William Register, Mayor, High Springs, Florida; a Mr. Westmoreland, resident, High Springs, Florida; Cybil M. Crawford, Vice- President, High Springs Bank, High Springs, Florida; and Thomas William Wolfe, Chief of Police, High Springs, Florida. Respondent offered six (6) items of evidence. All items have been received. The parties, in the person of counsel, have offered proposed recommended orders and supporting argument. Those matters have been reviewed prior to the entry of this Recommended Order. To the extent that those items are consistent with this Recommended Order, they have been utilized. To the extent that the matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact In February, 1976, Respondent made his initial application to the Board of Medical Examiners to become a licensed physician in the State of Florida. A copy of that application may be found as Petitioner's Exhibit No. 1, admitted into evidence. This application was received beyond the time of the deadline for filing and as a consequence, Respondent was required to submit a further application. The second application was made on January 17, 1977. A copy of that application may be found as Petitioner's Exhibit No. 2, admitted into evidence. Both applications were prepared by the Respondent and sworn to as to their accuracy. This attestation also acknowledged that if false information was given in the application, that Respondent agreed that the act of falsifying the application constituted cause for denial, suspension or revocation of his license to practice medicine in the State of Florida. Following the submission of the second application for licensure, Braga stood the Board of Medical Examiners' license examination, given in English, and was a successful candidate for licensure. He was awarded License No. ME0032004 and has renewed that license by the payment of applicable fees since the initial award of the license in 1978. The Administrative Complaint which has been discussed in the course of this Recommended Order challenges the accuracy of the information presented in the applications which were submitted by Respondent. In the initial application filed by the Respondent for licensure dating from February, 1976, Braga states that he attended Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from February, 1971, through December, 1967. In the application, Respondent indicates that he practiced and/or was employed at the INPS (Institute National of Providence Social) , Sao Paulo, Brazil, in General Practice, between 1970 through 1972; Clinica Nuesta Senora, Sao Paulo, Brazil, in General Practice, between 1971 through 1972; Heliopolis Hospital, Sao Paulo, Brazil, between 1969 through 1970, and the Fundacao Centro Nacional, San Paulo, Brazil, between January, 1968 and December, 1968. The initial application of February, 1976, also contained a document written in Portuguese, which was sworn and certified to by Braga as being a true, authentic and legitimate photocopy of the original of his medical diploma issued by Medic Sciences of Santos in Brazil. (See Petitioner's Exhibit No. 1) There is also contained in the application of February, 1976, an indication, under oath by Respondent, concerning a document as attached, purportedly issued by Heliopolis Hospital in San Paulo, Brazil. Finally, Respondent had attached to the form application, and found in Petitioner's Exhibit No. 1, affidavits from three physicians; Antonio J. Maniglia, Jorge Macedo and Humberto Munoz. These affidavits indicated that the physicians swore and affirmed that, by their personal knowledge, Respondent attended and graduated from Faculdade de Ciencias Medicas de Santos, and practiced lawfully in the profession of medicine in Brazil in the years 1968 through 1972, and further indicated that the physicians had practiced in Brazil during that time. It has been proven and Respondent acknowledges that the application of February, 1976, Petitioner's Exhibit No. 1, was false to the extent that it indicated his attendance at Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, during the years 1971 through 1967; to the extent that the application indicated he practiced in the hospitals and clinics as set forth above, and to the extent that the application indicated that the physicians who had signed the affidavits had personal knowledge of Respondent's graduation from the medical school and his practice of medicine in Brazil. In the January, 1977, application with associated documents, found as Petitioner's Exhibit No. 2, admitted into evidence, Respondent indicates to the Board of Medical Examiners that he attended Faculdade de Ciencias Medicas de Santos, Sao Paulo, Brazil, from December 1967 to February, 1971, and received his degree of Doctor of Medicine from that school on January 7, 1967. He indicates in the application, on the subject of residency or other postgraduate training, that he worked at the Fundacao Lusiada, Faculdade de Ciencias Medicas de Santos, from January, 1967, through October, 1967; and attended a Vascular Surgery Course, in the Heliopolis Hospital, Sao Paulo, Brazil, November, 1970. His employment was described in the application as being at the INPS (Institute National of Providence Social) Hospital, Sao Paulo, Brazil, General Practice, 1970 through 1972; at Clinica Nuestra Senora, Sao Paulo, Brazil, General Practice, 1971 through 1972; at Heliopolis Hospital, Sao Paulo, Brazil, General Practice, 1969 through 1970; and Fundacao Centro Nacional, General Practice, January, 1968 through December, 1968. The second application, which is found as Petitioner's Exhibit No. 2, attached a medical diploma purportedly from the School of Medical Sciences of Santos (Faculdade de Ciencias Medicas de Santos). This document shows a date of January 7, 1967, and was dissimilar to the diploma document which was attached to the February, 1976, application. There were certain affidavits with the January, 1977, application from physicians Jose A. Pardo, Jaime Motta and Pedro Melo, which affidavits indicated that the physicians had personal knowledge of Braga's attendance and graduation from Faculdade de Ciencias Medicas de Santos, in Sao Paulo, Brazil, and that he had lawfully practiced the profession of medicine in Brazil in the years 1967 through 1972. It was shown and Respondent admits that the January, 1977 application for licensure was false, in that Respondent did not attend the Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from December 1967 through February, 1971; that be had not practiced medicine in the hospitals and clinics as listed; that be had not attended residency or postgraduate training programs as shown in the application; and that the physicians who signed the affidavits for Respondent did not have personal knowledge of his graduation from medical school or his practice of medicine in Brazil. In reality, while it is accepted, that Respondent, who is a native of Brazil, has obtained a medical doctor's knowledge, Braga is not found to have graduated from a medical school either in that country or elsewhere or to have, following graduation from a medical school, practiced medicine as a general practitioner for five years or practiced in a one-year internship program, prior to licensure in Florida. Respondent departed Brazil sometime either in 1968 or 1969. Fe did so in the face of circumstances in his country, in which Respondent had been imprisoned. After gaining his freedom he migrated to the United States. When Braga arrived in the United States, he moved to Chicago, Illinois, and practiced medicine in that community without the benefit of a medical license. He subsequently left the State of Illinois and moved to Florida. After arriving in Florida and while employed in the Milagrosa Clinic in Miami, Florida, practiced medicine. At that time he had not been licensed by the State of Florida to practice medicine. Prior to the date of licensure by the State of Florida, Respondent attended and successfully completed the Florida State Board of Medical Examiners' continuing education program for 1977, which was offered by the Office of International Medical Education, University of Miami, School of Medicine, In turn, he successfully stood the requisite medical examination offered in English and was licensed. After receiving his medical license in 1975, Respondent moved to High Springs, Florida, and opened a medical practice which is primarily involved with the general practice of medicine. In the course of his practice, he has treated some 15,000 to 20,000 patients. Respondent offered as witnesses many persons from the community of High Springs, Florida, who, from the point of view of these individuals, are impressed with his good moral character. No evidence was presented from either side on the subject of Respondent's reputation as a medical practitioners as perceived by members of his profession.
Findings Of Fact In February, 1984 Petitioner applied to Respondent for licensure by examination under Section 458.311(2), F.S., but after review of said application at a meeting held on June 10, 1984, Respondent issued an Order dated July 21, 1984 denying said application. Petitioner received a degree which is designated Doctor of Medicine on May 2, 1983 from the Universidad Techologica de Santiago, (UTESA), Santo Domingo, Dominican Republic. He has been in residency at Orlando Regional Medical Center since June 28, 1983. Various required clerkships were performed by Petitioner between August 2, 1982 and February 28, 1983 in hematology, obstetrics and gynecology, pediatrics, dermatology and ENT/0phth., and were performed completely, or partially at osteopathic hospitals, or under the supervision of osteopathic physicians. An additional one month elective clerkship was also performed in April 1983 at Southeastern College of Osteopathy. Petitioner passed the exam given by the Educational Commission for Foreign Medical Graduates (ECFMG) on March 15, 1983, but has not been certified due to the need for additional institutional verification. Respondent informed Petitioner of the decision of ECFMG to withhold verification of certification and also informed Petitioner of its duty to approve or deny an application for licensure within ninety (90) days, unless waived by the applicant. Petitioner declined to consent to a waiver and requested Respondent to act on his application without verification of an ECFMG certificate.
The Issue The issue in these cases is whether certain rules proposed by the Agency for Health Care Administration (AHCA) related to adult interventional cardiovascular services are an invalid exercise of delegated legislative authority.
Findings Of Fact By stipulation of the parties, all Petitioners and Intervenors in these cases are acute care hospitals licensed in Florida pursuant to Chapter 395, Florida Statutes; are substantially affected by the proposed rules at issue in these cases; and have standing to participate in this proceeding. AHCA is the state agency responsible for licensure of hospitals pursuant to Chapter 395, Florida Statutes, and responsible for promulgation of the proposed rules at issue in these cases. This dispute specifically involves proposed rules related to the licensure of adult cardiovascular services in Florida hospitals. Such services include percutaneous cardiac intervention (PCI), also referred to as percutaneous transluminal coronary angioplasty (PCTA). PCI involves the insertion of a device placed into an artery and directed to the site of a coronary artery blockage. The device is used to compress or remove the blockage material and restore arterial blood flow to heart tissue. A mechanism called a "stent" may be left in place at the site of the former blockage to reduce the potential for re-blockage ("restenosis") of the artery. The procedure is performed in a cardiac catheterization laboratory ("cath lab"). PCI that is performed on an emergency basis to open an arterial blockage causing myocardial infarction (heart attack) is referred to as "primary" or "emergent" PCI. PCI performed to resolve symptoms of coronary artery disease manifesting in presentations other than through myocardial infarction is referred to as "elective" PCI. Previous law restricted PCI services to those hospitals with onsite cardiac surgery (commonly referred to as "open heart" surgery). Hospitals are required to obtain a Certificate of Need (CON) from AHCA to operate a cardiac surgery program. Accordingly, in order to offer PCI services, a hospital was required to obtain a cardiac surgery program CON from AHCA. As cardiac catheterization procedures have become more widely available and physician training and experience have increased, the relative safety of the procedures has improved. The volume of open heart cardiac surgery has declined as the patient outcomes for non-surgical coronary artery disease treatments have improved, yet Florida hospitals seeking to provide PCI were still operating under the CON-based restrictions. There is an ongoing debate within the medical community related to the issue of whether non-emergent patients should receive PCI services at hospitals which lack cardiac surgery programs. The historic rationale for restricting the availability of elective PCI procedures to hospitals where onsite cardiac surgery was also available was related to the possibility that an unsuccessful PCI would require immediate resolution through surgery. The evidence establishes that PCI-related events requiring immediate access to onsite cardiac surgery have become less frequent, at least in part due to increased training and experience of practitioners, as well as an increased technical ability to resolve some events, such as arterial ruptures or perforations, within the cath lab. Nonetheless, there is also evidence that the outcomes of cardiac catheterization procedures performed in hospitals with onsite cardiac surgery may be superior to those performed in hospitals where onsite cardiac surgery is not available. In 2004, the Florida Legislature adopted two bills that, insofar as are relevant to this proceeding, had an impact on the regulatory process related to adult interventional cardiovascular services. The effect of the legislation was to shift the regulation of PCI programs away from CON-based restrictions and towards a licensing process. Both bills established a two-level classification of hospitals providing adult interventional cardiology services. House Bill 329 limited the provision of PCI at hospitals without onsite cardiac surgery to emergent patients and provided, in relevant part, as follows: In establishing rules for adult interventional cardiology services, the agency shall include provisions that allow for: Establishment of two hospital program licensure levels: a Level I program authorizing the performance of adult primary percutaneous cardiac intervention for emergent patients without onsite cardiac surgery and a Level II program authorizing the performance of percutaneous cardiac intervention with onsite cardiac surgery. (Emphasis supplied) Senate Bill 182 did not limit PCI services on the basis of onsite cardiac surgery availability and provided, in relevant part, as follows: Section 2. Notwithstanding conflicting provisions in House Bill 329, Section 408.0361, Florida Statutes, is amended to read: * * * In establishing rules for adult interventional cardiology services, the agency shall include provisions that allow for: Establishment of two hospital program licensure levels: a Level I program authorizing the performance of adult percutaneous cardiac intervention without onsite cardiac surgery and a Level II program authorizing the performance of percutaneous cardiac intervention with onsite cardiac surgery. (Emphasis added) Both the House Bill and the Senate Bill were signed into law. The legislation was codified as Section 408.0361, Florida Statutes (2004), which provided, in relevant part, as follows: 408.0361 Cardiology services and burn unit licensure.-- * * * In establishing rules for adult interventional cardiology services, the agency shall include provisions that allow for: Establishment of two hospital program licensure levels: a Level I program authorizing the performance of adult percutaneous cardiac intervention without onsite cardiac surgery and a Level II program authorizing the performance of percutaneous cardiac intervention with onsite cardiac surgery. Extensive evidence was offered at the hearing to support both sides of the debate regarding the appropriateness of performing elective PCI in hospitals without onsite cardiac surgery, and it is clear that the debate continues. However, the evidence establishes that the Florida Legislature specifically chose not to restrict non-emergent PCI to Florida hospitals with onsite cardiac surgery units and has determined that properly-licensed Florida hospitals may provide PCI services without regard to the availability of on-site cardiac surgery. It is reasonable to assume that had the Legislature intended to restrict provision of adult PCI in hospitals without cardiac surgery programs to emergent patients, the "notwithstanding" language contained in Senate Bill 182 would not have been adopted. There is no credible evidence that the Legislature was unaware of the continuing debate within the cardiology community at the time the legislation was adopted in 2004. The Legislature has acknowledged the distinction between emergent and elective PCI as indicated by Subsection 408.036(3)(o), Florida Statutes (2008), which provides under certain circumstances that a hospital without an approved "open heart surgery program" can obtain an exemption from CON requirements and provide emergent PCI services to "patients presenting with emergency myocardial infarctions." It is reasonable to assume that had the codification of the 2004 legislation been incorrect, the Florida Legislature would have subsequently amended the statute to reinstate the restriction. In fact, the Legislature has revised the referenced statute without substantively altering the relevant language establishing the two-level licensure designation. Section 408.0361, Florida Statutes (2008), the current statute directing AHCA to adopt the rules at issue in this proceeding, provides, in relevant part, as follows: 408.0361 Cardiovascular services and burn unit licensure.-- Each provider of diagnostic cardiac catheterization services shall comply with rules adopted by the agency that establish licensure standards governing the operation of adult inpatient diagnostic cardiac catheterization programs. The rules shall ensure that such programs: Comply with the most recent guidelines of the American College of Cardiology and American Heart Association Guidelines for Cardiac Catheterization and Cardiac Catheterization Laboratories. Perform only adult inpatient diagnostic cardiac catheterization services and will not provide therapeutic cardiac catheterization or any other cardiology services. Maintain sufficient appropriate equipment and health care personnel to ensure quality and safety. Maintain appropriate times of operation and protocols to ensure availability and appropriate referrals in the event of emergencies. Demonstrate a plan to provide services to Medicaid and charity care patients. Each provider of adult cardiovascular services or operator of a burn unit shall comply with rules adopted by the agency that establish licensure standards that govern the provision of adult cardiovascular services or the operation of a burn unit. Such rules shall consider, at a minimum, staffing, equipment, physical plant, operating protocols, the provision of services to Medicaid and charity care patients, accreditation, licensure period and fees, and enforcement of minimum standards. The certificate-of-need rules for adult cardiovascular services and burn units in effect on June 30, 2004, are authorized pursuant to this subsection and shall remain in effect and shall be enforceable by the agency until the licensure rules are adopted. Existing providers and any provider with a notice of intent to grant a certificate of need or a final order of the agency granting a certificate of need for adult cardiovascular services or burn units shall be considered grandfathered and receive a license for their programs effective on the effective date of this act. The grandfathered licensure shall be for at least 3 years or until July 1, 2008, whichever is longer, but shall be required to meet licensure standards applicable to existing programs for every subsequent licensure period. In establishing rules for adult cardiovascular services, the agency shall include provisions that allow for: Establishment of two hospital program licensure levels: a Level I program authorizing the performance of adult percutaneous cardiac intervention without onsite cardiac surgery and a Level II program authorizing the performance of percutaneous cardiac intervention with onsite cardiac surgery. For a hospital seeking a Level I program, demonstration that, for the most recent 12-month period as reported to the agency, it has provided a minimum of 300 adult inpatient and outpatient diagnostic cardiac catheterizations or, for the most recent 12-month period, has discharged or transferred at least 300 inpatients with the principal diagnosis of ischemic heart disease and that it has a formalized, written transfer agreement with a hospital that has a Level II program, including written transport protocols to ensure safe and efficient transfer of a patient within 60 minutes. For a hospital seeking a Level II program, demonstration that, for the most recent 12-month period as reported to the agency, it has performed a minimum of 1,100 adult inpatient and outpatient cardiac catheterizations, of which at least 400 must be therapeutic catheterizations, or, for the most recent 12-month period, has discharged at least 800 patients with the principal diagnosis of ischemic heart disease. Compliance with the most recent guidelines of the American College of Cardiology and American Heart Association guidelines for staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety. Establishment of appropriate hours of operation and protocols to ensure availability and timely referral in the event of emergencies. Demonstration of a plan to provide services to Medicaid and charity care patients. In order to ensure continuity of available services, the holder of a certificate of need for a newly licensed hospital that meets the requirements of this subsection may apply for and shall be granted Level I program status regardless of whether rules relating to Level I programs have been adopted. To qualify for a Level I program under this subsection, a hospital seeking a Level I program must be a newly licensed hospital established pursuant to a certificate of need in a physical location previously licensed and operated as a hospital, the former hospital must have provided a minimum of 300 adult inpatient and outpatient diagnostic cardiac catheterizations for the most recent 12- month period as reported to the agency, and the newly licensed hospital must have a formalized, written transfer agreement with a hospital that has a Level II program, including written transport protocols to ensure safe and efficient transfer of a patient within 60 minutes. A hospital meeting the requirements of this subsection may apply for certification of Level I program status before taking possession of the physical location of the former hospital, and the effective date of Level I program status shall be concurrent with the effective date of the newly issued hospital license. (5)(a) The agency shall establish a technical advisory panel to develop procedures and standards for measuring outcomes of adult cardiovascular services. Members of the panel shall include representatives of the Florida Hospital Association, the Florida Society of Thoracic and Cardiovascular Surgeons, the Florida Chapter of the American College of Cardiology, and the Florida Chapter of the American Heart Association and others with experience in statistics and outcome measurement. Based on recommendations from the panel, the agency shall develop and adopt rules for the adult cardiovascular services that include at least the following: A risk adjustment procedure that accounts for the variations in severity and case mix found in hospitals in this state. Outcome standards specifying expected levels of performance in Level I and Level II adult cardiovascular services. Such standards may include, but shall not be limited to, in-hospital mortality, infection rates, nonfatal myocardial infarctions, length of stay, postoperative bleeds, and returns to surgery. Specific steps to be taken by the agency and licensed hospitals that do not meet the outcome standards within specified time periods, including time periods for detailed case reviews and development and implementation of corrective action plans. Hospitals licensed for Level I or Level II adult cardiovascular services shall participate in clinical outcome reporting systems operated by the American College of Cardiology and the Society for Thoracic Surgeons. As required by Subsection 408.0361(5), Florida Statutes (2004), AHCA created the TAP, which convened and met over the course of two years at a series of public hearings. The TAP also received written materials and comments from interested parties. Thereafter, AHCA convened rule development workshops to formulate the proposed rules at issue in this proceeding. The proposed rules were initially noticed in the September 28, 2007, Florida Administrative Weekly (Vol. 33, No. 39). Subsequent Notices of Changes to the proposed rules were published in the Florida Administrative Weeklies of November 16, 2007 (Vol. 33, No. 46); March 28, 2008 (Vol. 34, No. 13); and May 9, 2008 (Vol. 34, No. 19). There is no evidence that AHCA failed to comply with statutory requirements related to the rule adoption process. As required by Subsection 408.0361(3)(a), Florida Statutes (2008), the proposed rules set forth the procedures by which a hospital may apply for licensure as a Level I or Level II provider of adult cardiovascular services without differentiation based on the availability of on-site cardiac surgery. The proposed rules applicable to a hospital seeking licensure as a Level I provider of adult cardiovascular services are set forth at Proposed Rule 59A-3.2085(16). The proposed rules applicable to a hospital seeking licensure as a Level II provider of adult cardiovascular services are set forth at Proposed Rule 59A-3.2085(17). Subsection 408.0361(3)(b), Florida Statutes (2008), establishes minimum volume reporting requirements for licensure as a Level I program. Accordingly, Proposed Rule 59A- 3.2085(16)(a) provides, in relevant part, as follows: 1. A hospital seeking a license for a Level I adult cardiovascular services program shall submit an application on a form provided by the Agency (See Form 1: Level I Adult Cardiovascular Services License Application Attestation; AHCA Form, Section 18(a) of this rule ), signed by the chief executive officer of the hospital, attesting that, for the most recent 12-month period, the hospital has provided a minimum of 300 adult inpatient and outpatient diagnostic cardiac catheterizations or, for the most recent 12-month period, has discharged or transferred at least 300 inpatients with the principal diagnosis of ischemic heart disease (defined by ICD-9-CM codes 410.0 through 414.9). Reportable cardiac catheterization procedures are defined as single sessions with a patient in the hospital’s cardiac catheterization procedure room(s), irrespective of the number of specific procedures performed during the session. Reportable cardiac catheterization procedures shall be limited to those provided and billed for by the Level I licensure applicant and shall not include procedures performed at the hospital by physicians who have entered into block leases or joint venture agreements with the applicant. (Emphasis supplied) Subsection 408.0361(3)(c), Florida Statutes (2008), establishes minimum volume reporting requirements for licensure as a Level II program. Accordingly, Proposed Rule 59A- 3.2085(17)(a) provides in relevant part as follows: 1. A hospital seeking a license for a Level II adult cardiovascular services program shall submit an application on a form provided by the Agency (See Form 2: Level II Adult Cardiovascular Services License Application Attestation; AHCA Form , Section 18(b) of this rule ) to the Agency, signed by the chief executive officer of the hospital, attesting that, for the most recent 12-month period, the hospital has provided a minimum of a minimum of 1,100 adult inpatient and outpatient cardiac catheterizations, of which at least 400 must be therapeutic cardiac catheterizations, or, for the most recent 12-month period, has discharged at least 800 patients with the principal diagnosis of ischemic heart disease (defined by ICD-9-CM codes 410.0 through 414.9). a. Reportable cardiac catheterization procedures shall be limited to those provided and billed for by the Level II licensure applicant and shall not include procedures performed at the hospital by physicians who have entered into block leases or joint venture agreements with the applicant. (Emphasis supplied) St. Anthony's asserts that the proposed rule is invalid on the grounds that it fails to provide a clear and reasonable methodology for assessing and verifying the number of diagnostic catheterization procedures performed. St. Anthony's asserts that the exclusion of cardiac catheterization procedures performed within the hospital's cardiac cath lab but not billed by the hospital is arbitrary and capricious, modifies, enlarges, or contravenes the specific provisions of the statute implemented, fails to establish adequate standards for agency decision making, and vests unbridled discretion in the agency. The evidence fails to support these assertions. Although the phrase "block lease" is undefined by statute or rule, the evidence establishes that insofar as relevant to this proceeding, the term refers to a practice by which a group of cardiologists lease blocks of time from a hospital for exclusive use of a hospital's cardiac cath lab. St. Anthony's has a leasing arrangement with a group of cardiologists identified as the "Heart and Vascular Institute South" ("HAVI South") whereby St. Anthony's leases blocks of time in a cardiac cath lab to HAVI South cardiologists. The facility is located in a privately-owned medical office building physically attached to St. Anthony's hospital building. St. Anthony's leases the medical office building from a developer. HAVI South cardiologists perform cardiac catheterization procedures at the St. Anthony's facility during both leased and non-leased time. St. Anthony's provides personnel to staff the cardiac cath lab regardless of whether the procedure is performed during leased or non-leased time. The HAVI South cardiology group develops the schedule of cardiac catheterization procedures to be performed during the leased time and notifies St. Anthony's of the schedule. The HAVI South cardiology group bills for both their professional fees and the facility charges (referred to as the "technical component") for the cardiac catheterization procedures performed during leased time. St. Anthony's does not bill for cardiac catheterization procedures performed during the leased time. For the cardiac catheterization procedures performed during non-leased time, the HAVI South cardiology group bills for professional fees, and St. Anthony's bills for the technical component. Patricia Sizemore, vice-president for patient services at St. Anthony's, acknowledged that other hospitals could have block-leasing arrangements different from those existing between St. Anthony's and the HAVI South group. The proposed rules would preclude St. Anthony's from including the outpatient cardiac catheterization procedures done by HAVI South during the block-leased time within those procedures available to meet the numeric threshold requirements identified in the statute. The evidence fails to establish that the proposed rule fails to provide a clear and reasonable methodology for assessing and verifying the number of diagnostic catheterization procedures performed. The relevant language of Subsection 408.0361(3), Florida Statutes (2008), identifies the hospital as the applicant and requires that the applicant "provide" the procedures or discharges being reported to meet the specified volume thresholds. The applicable definition of hospital is set forth at Subsection 408.032(11), Florida Statutes (2008), which defines a hospital as a health care facility licensed under Chapter 395, Florida Statutes. Subsection 395.002(12), Florida Statutes (2008), sets forth the following definition: (12) "Hospital" means any establishment that: Offers services more intensive than those required for room, board, personal services, and general nursing care, and offers facilities and beds for use beyond 24 hours by individuals requiring diagnosis, treatment, or care for illness, injury, deformity, infirmity, abnormality, disease, or pregnancy; and Regularly makes available at least clinical laboratory services, diagnostic X- ray services, and treatment facilities for surgery or obstetrical care, or other definitive medical treatment of similar extent, except that a critical access hospital, as defined in s. 408.07, shall not be required to make available treatment facilities for surgery, obstetrical care, or similar services as long as it maintains its critical access hospital designation and shall be required to make such facilities available only if it ceases to be designated as a critical access hospital. Physicians are not "hospitals" and are not licensed or regulated by Chapter 395, Florida Statutes. Physicians are not authorized to apply for licensure under the provisions of the statute and proposed rules at issue in this proceeding. Nothing in the statute suggests that entities other than hospitals may apply for licensure of a Level I or Level II adult cardiovascular services program. The rationale underlying the restriction of reportable procedures to those for which the applicant hospital issues bills for payment is based upon AHCA's reasonable intention to validate the procedure volume data submitted by applicant hospitals. Jeffrey Gregg, chief of AHCA's Bureau of Health Facility Regulation and CON Unit, testified that "the only practical, realistic way" for AHCA to routinely verify the accuracy of the procedure volume identified by a hospital's licensure application is through AHCA's ambulatory patient database. The reporting requirements for the ambulatory patient database are set forth at Florida Administrative Code Chapter 59B-9 and include elements such as demographic information, diagnosis codes, and charges. The database provides AHCA with access to patient record documentation and directly allows AHCA to verify the procedure volume identified in the licensure application. Because St. Anthony's has no charges related to the procedures performed by HAVI South cardiologists during the leased time, St. Anthony's has not reported procedures performed during leased time to the ambulatory patient database. St. Anthony's reports far more cardiac catheterization procedures to the local Suncoast Health Council than it does to AHCA's ambulatory patient database and asserts that AHCA could rely on health council data. AHCA has no organizational relationship with the local health council, and the evidence fails to establish that such data is as reliable as that collected by the ambulatory patient database. AHCA asserts that an additional basis to exclude procedures performed by entities other than the applicant hospital is that AHCA has no direct regulatory authority over the non-hospital entity. St. Anthony's asserts that AHCA would have its customary authority over the hospital and, by extension, over the third-party leasing the cardiac cath lab from the hospital. At best, AHCA's authority to obtain records from the non-hospital operator of the hospital's cardiac cath lab is unclear. St. Anthony's position effectively would permit a third-party operator to lease all of the time in a hospital's cardiac cath lab, yet allow the hospital to apply for and receive an adult cardiovascular service license. Nothing in Section 408.0361, Florida Statutes (2008), suggests that the Legislature intended to provide such an option. The proposed rule designating the reportable cardiac catheterization procedures is logical and rational, is not arbitrary or capricious, and does not modify, enlarge or contravene the specific provisions of the statute implemented. The evidence fails to establish that the designation of appropriately reportable cardiac catheterization procedures constitutes a failure to establish adequate standards for agency decision making or vests unbridled discretion in the agency. Subsection 408.0361(3)(d), Florida Statutes (2008), requires that the proposed rules include provisions "that allow for" compliance with the most recent guidelines of the American College of Cardiology and AHA guidelines for "staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety." Subsection 408.0361(5), Florida Statutes (2008), requires that the TAP "develop procedures and standards for measuring outcomes" and that, based thereon, AHCA adopt rules that include a risk adjustment procedure that accounts for variations in severity and case mix, outcome standards specifying expected levels of performance, and "specific steps to be taken by the agency and the licensed hospitals" that fail to meet outcome standards. The statute also requires that licensed hospitals participate in clinical outcome reporting systems operated by the American College of Cardiology and the Society of Thoracic Surgeons. The TAP determined that the appropriate method of measuring outcome was to utilize the data available through the clinical outcome reporting systems referenced in the statute. Accordingly, Proposed Rule 59A-3.2085(16)(a) identifies the guidelines applicable to Level I adult cardiovascular services; identifies the specific provisions of the guidelines with which a Level I hospital must comply; requires that the Level I hospital participate in the statutorily-identified data reporting system; and requires that Level I hospitals document a quality improvement plan to meet performance measures set forth by the data reporting system. The proposed rule provides, in relevant part, as follows: All providers of Level I adult cardiovascular services programs shall operate in compliance with subsection 59A- 3.2085(13), F.A.C., the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-214 and the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention) guidelines regarding the operation of adult diagnostic cardiac catheterization laboratories and the provision of percutaneous coronary intervention. The applicable guidelines, herein incorporated by reference, are the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-214; and the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention). Aspects of the guideline related to pediatric services or outpatient cardiac catheterization in freestanding non-hospital settings are not applicable to this rule. Aspects of the guideline related to the provision of elective percutaneous coronary intervention only in hospitals authorized to provide open heart surgery are not applicable to this rule. Hospitals are considered to be in compliance with the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-214 and the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention) guidelines when they adhere to standards regarding staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety. Hospitals must also document an ongoing quality improvement plan to ensure that the cardiac catheterization program and the percutaneous coronary intervention program meet or exceed national quality and outcome benchmarks reported by the American College of Cardiology-National Cardiovascular Data Registry. Level I adult cardiovascular service providers shall report to the American College of Cardiology-National Cardiovascular Data Registry in accordance with the timetables and procedures established by the Registry. All data shall be reported using the specific data elements, definitions and transmission format as set forth by the American College of Cardiology-National Cardiovascular Data Registry. Proposed Rule 59A-3.2085(17)(a) identifies the guidelines applicable to Level II adult cardiovascular services; identifies the specific provisions of the guidelines with which a Level II hospital must comply; requires that the Level II hospital participate in the statutorily-identified data reporting system; and requires that Level II hospitals document a quality improvement plan to meet performance measures set forth by the data reporting system. The proposed rule provides in relevant part as follows: All providers of Level II adult cardiovascular services programs shall operate in compliance with subsections 59A-3.2085(13) and 59A-3.2085(16), F.A.C. and the applicable guidelines of the American College of Cardiology/American Heart Association regarding the operation of diagnostic cardiac catheterization laboratories, the provision of percutaneous coronary intervention and the provision of coronary artery bypass graft surgery. The applicable guidelines, herein incorporated by reference, are the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-214; and ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention; and ACC/AHA 2004 Guideline Update for Coronary Artery Bypass Graft Surgery: A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (Committee to Update the 1999 Guidelines for Coronary Artery Bypass Graft Surgery) Developed in Collaboration With the American Association for Thoracic Surgery and the Society of Thoracic Surgeons. Aspects of the guidelines related to pediatric services or outpatient cardiac catheterization in freestanding non-hospital settings are not applicable to this rule. Hospitals are considered to be in compliance with the guidelines in the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-214; in the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention; and in the ACC/AHA 2004 Guideline Update for Coronary Artery Bypass Graft Surgery: A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (Committee to Update the 1999 Guidelines for Coronary Artery Bypass Graft Surgery) Developed in Collaboration With the American Association for Thoracic Surgery and the Society of Thoracic Surgeons when they adhere to standards regarding staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety. Hospitals must also document an ongoing quality improvement plan to ensure that the cardiac catheterization program, the percutaneous coronary intervention program and the cardiac surgical program meet or exceed national quality and outcome benchmarks reported by the American College of Cardiology-National Cardiovascular Data Registry and the Society of Thoracic Surgeons. In addition to the requirements set forth in subparagraph (16)(a)7. of this rule, each hospital licensed to provide Level II adult cardiovascular services programs shall participate in the Society of Thoracic Surgeons National Database. The Petitioners generally assert that the proposed rules insufficiently identify or establish the minimum standards identified as "guidelines" and "benchmarks" in the rule. The evidence fails to support the assertion. The guidelines are specifically identified and incorporated by reference within the rule. There is no evidence that the documents identified do not constitute the "most recent guidelines of the American College of Cardiology and the American Heart Association" as required by the statute. Hospitals are not obligated to meet all of the requirements set forth in the guidelines. A licensed hospital is deemed to be in compliance when, as specified in the statute, the hospital adheres to the standards related to staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety. The Petitioners generally assert that such distinctions between the various compliance elements are unclear. The evidence fails to support the assertion. There is no credible evidence that the guidelines, albeit technical and complex, are not commonly understood by appropriate medical practitioners and hospital administrators. Martin Memorial asserts that the Proposed Rule 59A-3.2085(16)(a)5. is vague on grounds that it requires Level I hospitals to operate in compliance with the referenced guidelines while Proposed Rule 59A-3.2085(16)(a)9. authorizes provision of elective PCI at Level I hospitals. Martin Memorial further asserts that because the proposed rules provide for elective PCI in hospitals without onsite cardiac surgical programs, the proposed rules enlarge, modify or contravene the enacting statute. Subsection 408.0361(3)(d), Florida Statutes (2008), requires that AHCA include "provisions that allow for" the following: Compliance with the most recent guidelines of the American College of Cardiology and American Heart Association guidelines for staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety. (Emphasis supplied) Proposed Rule 59A-3.2085(16)(a)9. provides as follows: Notwithstanding guidelines to the contrary in the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-214 and the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention), all providers of Level I adult cardiovascular services programs may provide emergency and elective percutaneous coronary intervention procedures. Aspects of the guidelines related to pediatric services or outpatient cardiac catheterization in freestanding non-hospital settings are not applicable to this rule. (Emphasis supplied) Martin Memorial's disagreement with the proposed rule is premised on the following statement in the ACC/AHA/SCAI 2005 Guideline Update: Elective PCI should not be performed at institutions that do not provide onsite cardiac surgery. (Level of Evidence: C) The statement is contained within subsection 4.3 ("Role of Onsite Cardiac Surgical Backup") within Section 4 ("Institutional and Operator Competency"). The statement is defined as a "Class III" standard, meaning within the "conditions for which there is evidence and/or general agreement that a procedure/treatment is not useful/effective and in some cases may be harmful." According to the "Level of Evidence: C" identification, the statement reflects "consensus opinion of experts, case studies, or standard of care." A footnote to the statement provides as follows: Several centers have reported satisfactory results based on careful case selection with well-defined arrangements for immediate transfer to a surgical program (citation omitted). A small but real fraction of patients undergoing elective PCI will experience a life-threatening complication that could be managed with the immediate onsite availability of cardiac surgical support but cannot be managed effectively by urgent transfer. Wennberg, et al., found higher mortality in the Medicare database for patients undergoing elective PCI in institutions without onsite cardiac surgery (citation omitted). This recommendation may be subject to revision as clinical data and experience increase. The guidelines are statements of "best practices" in health care delivery. They are intended to assist practitioners and facility administrators in making appropriate decisions. The cited statement neither prohibits nor requires performance of elective PCI in hospitals without onsite cardiac surgical programs. Whether a practitioner performs elective PCI in a licensed Level I hospital remains a medical decision under the provisions of the enacting statute and proposed rules. The footnote recognizes that elective PCI is available at some hospitals without onsite cardiac surgery through "careful case selection with well-defined arrangements for immediate transfer to a surgical program." The proposed rule specifically establishes staff and transfer requirements designed to facilitate rapid transfer of a patient from a Level I to a Level II facility. There is no evidence that such staff and transfer requirements are insufficient or otherwise inappropriate. Patient selection criteria are those which expressly identify clinical presentations of patients who are appropriate for revascularization through PCI. Section 5 of the referenced ACC/AHA/SCAI 2005 Guideline Update, titled "Clinical Presentations" explicitly addresses such criteria and constitutes the patient selection criteria contained within the document. The patient selection criteria do not regulate the location where PCI procedures are performed. As stated previously, the Florida Legislature, presented with the option of limiting the availability of cardiac catheterization services available at Level I hospitals to emergent patients, rejected the limitation. The evidence fails to establish that Proposed Rule 59A-3.2085(16)(a)5. is vague or that Proposed Rule 59A-3.2085(16)(a)9. enlarges, modifies or contravenes the enacting statute. Martin Memorial and St. Anthony's assert that the proposed rule contravenes Subsection 408.0361(5)(a), Florida Statutes (2008), which provides that AHCA adopt rules that include "at least the following" elements: A risk adjustment procedure that accounts for the variations in severity and case mix found in hospitals in this state. Outcome standards specifying expected levels of performance in Level I and Level II adult cardiovascular services. Such standards may include, but shall not be limited to, in-hospital mortality, infection rates, nonfatal myocardial infarctions, length of stay, postoperative bleeds, and returns to surgery. Specific steps to be taken by the agency and licensed hospitals that do not meet the outcome standards within specified time periods, including time periods for detailed case reviews and development and implementation of corrective action plans. The TAP recommended to AHCA that existing outcome data reporting systems created by the American College of Cardiology and the Society of Thoracic Surgeons be utilized for data collection related to licensed hospital adult cardiovascular services programs. Subsection 408.0361(5)(b), Florida Statutes (2008), requires that hospitals licensed under the proposed rules participate in clinical reporting systems operated by the American College of Cardiology and the Society of Thoracic Surgeons. The requirement was adopted by the 2007 Legislature based on the TAP recommendation. Proposed Rule 51A-3.2085(16)(a)8. requires licensed Level I hospitals to participate in the American College of Cardiology-National Cardiovascular Data Registry (ACC-NCDR) and sets forth additional directives related to such participation. The ACC-NCDR system is a risk adjusted outcome reporting system that accounts for variation in severity and case mix. It collects approximately 200 data elements and is in use in approximately 2,000 hospitals. Proposed Rule 51A-3.2085(17)(a)6. directs licensed Level II hospitals to participate in the Society of Thoracic Surgeons National Database (STS database) and sets forth additional requirements related to such participation. The STS database provides information generally similar to the ACC-NCDR database. Although Proposed Rule 59A-3.2085(17)(a)5. states that the Level II hospital must meet or exceed the performance standards identified within the ACC-NCDR, there appears to be no specific requirement in the proposed rules that a Level II hospital participate in the ACC-NCDR system. Proposed Rule 59A-3.2085(17)(a)6. contains a citation to Proposed Rule 59A-3.2085 (16)(a)7. The cited paragraph consists of text that is similar to the paragraph preceding the citation. The intent of the reference is unclear. If the reference were intended to incorporate the ACC- NCDR reporting requirements with those applicable to Level II hospitals, the citation in Proposed Rule 59A-3.2085(17)(a)6. should have been to Proposed Rule 59A-3.2085(16)(a)8., where the ACC-NCDR requirements are identified. In any event, the statute requires participation by licensed hospitals in the reporting systems, and, as stated previously, Level II hospitals must document plans to ensure that the cited standards are met; so, it is logical to presume that Level II hospitals will participate in the ACC-NCDR system, in addition to the STS database. Martin Memorial and St. Anthony's assert that the proposed rule does not include the "outcome standards specifying expected levels of performance" required by Subsection 408.0361(5)(a)2., Florida Statutes (2008), and that the proposed rules fail to identify the "national quality and outcome benchmarks" referenced therein. The evidence fails to support the assertions. 93. Proposed Rules 59A-3.2085(16)(a)7. and 59A- 3.2085(17)(a)5. require that each licensed hospital must document a "quality improvement plan to ensure" that the specified cardiac services meet or exceed "national quality and outcome benchmarks" reported by the ACC-NCDR and the STS databases. The word "benchmark" is not defined by statute or rule. Merriam Webster's dictionary defines "benchmark" as "a point of reference from which measurements may be made" or "something that serves as a standard by which others may be measured or judged." The evidence establishes that the "national quality and outcome benchmarks" referenced in the proposed rules are the "expected levels of performance" identified through the ACC-NCDR system. Each hospital participating in the ACC-NCDR system receives a detailed quarterly outcome report indicating the particular hospital's performance relative to all other reporting hospitals on a variety of elements associated with cardiac catheterization and PCI provided at the hospital. Accompanying each periodic report is an "Executive Summary" that identifies the relative performance of the hospital receiving the report on ten specific "PCI and Diagnostic Catheterization Performance Measures," including six "PCI Quality Measures," two "PCI Utilization Measures," and two "Diagnostic Quality Measures." The Executive Summary information visually displays the data through a set of "box and whisker plots" that present the range of data reported by all participating hospitals on each specific measure. The summary received by each hospital identifies its specific performance through an "arrow" and numeric data printed on the plot. The plot visually displays "lagging" and "leading" performance levels. The plot identifies hospitals performing below the tenth percentile of all participating hospitals as "lagging" hospitals. The plot identifies hospitals performing above the 90th percentile as "leading" hospitals. The evidence, including review of the ACC-NCDR data reporting system, establishes that the "expected levels of performance" are rationally those levels within the broad range of hospitals which are neither "leading" nor "lagging" according to the data. It is reasonable to assume that a "leading" hospital is performing at a level higher than expected and that a "lagging" hospital is performing at a level lower than expected. By reviewing the plot for each measure, a hospital can determine its performance relative to other participating hospitals on the ten measures included in the Executive Summary. The additional numeric data contained within the quarterly report permit additional comparison between an individual hospital and all other participating hospitals. Subsection 408.0361(5)(a)2., Florida Statutes (2008), does not require that AHCA establish numeric minimal standards, but only requires that the rule identify "outcome standards specifying expected levels of performance." The ACC-NCDR reporting system required by the statute and adopted by the proposed rules sufficiently identifies expected levels of performance. By their very nature, the outcome standards are not fixed. It is reasonable to presume that as hospital practices change, measurements of relative performance will also change. The rule requires only that each licensed hospital include within a quality improvement plan, documentation to ensure that such outcome standards will be met or exceeded, essentially encouraging a pattern of continual improvement by licensed programs. Subsection 408.0361(5)(a)3., Florida Statutes (2008), requires that the rule include the "specific steps to be taken by the agency and licensed hospitals that do not meet the outcome standards within specified time periods, including time periods for detailed case reviews and development and implementation of corrective action plans." The proposed rule complies with the requirements of the statute. Enforcement of outcome standards requirements applicable to Level I programs is addressed at Proposed Rule 59A-3.2085(16)(f) which provides as follows: Enforcement of these rules shall follow procedures established in Rule 59A-3.253, F.A.C. Unless in the view of the Agency there is a threat to the health, safety or welfare of patients, Level I adult cardiovascular services programs that fail to meet provisions of this rule shall be given 15 days to develop a plan of correction that must be accepted by the Agency. Failure of the hospital with a Level I adult cardiovascular services program to make improvements specified in the plan of correction shall result in the revocation of the program license. The hospital may offer evidence of mitigation and such evidence could result in a lesser sanction. Enforcement of outcome standards requirements applicable to Level II programs is addressed at Proposed Rule 59A-3.2085(17)(e), which provides as follows: Enforcement of these rules shall follow procedures established in Rule 59A-3.253, F.A.C. Unless in the view of the Agency there is a threat to the health, safety or welfare of patients, Level II adult cardiovascular services programs that fail to meet provisions of this rule shall be given 15 days to develop a plan of correction that must be accepted by the Agency. Failure of the hospital with a Level II adult cardiovascular services program to make improvements specified in the plan of correction shall result in the revocation of the program license. The hospital may offer evidence of mitigation and such evidence could result in a lesser sanction. AHCA does not routinely conduct surveys of accredited hospitals. Such surveys are conducted by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). AHCA generally conducts hospital surveys only during the investigation, pursuant to Florida Administrative Code Rule 59A-3.253(8), of a complaint filed against a hospital. AHCA would likely review ACC-NCDR and Society of Thoracic Surgeons data reports associated with the investigation of a specific complaint related to adult cardiovascular services. Assuming that AHCA's review of the data identified a deficiency, the proposed rules provide the licensee a 15-day period to develop a plan of correction acceptable to AHCA, unless the issue poses "a threat to the health, safety or welfare of patients" in which case it is reasonable to expect that a more prompt resolution of a deficiency would be required. Pursuant to Florida Administrative Code Rule 59A- 3.253, a hospital could be sanctioned for failing to submit a plan of correction related to an identified deficiency, or for failing to implement actions to correct deficiencies specified in an approved plan of correction. There is no evidence that AHCA's enforcement authority under the proposed rules differs in any significant manner from the general enforcement authority already available to the agency. There is no evidence that the proposed rules would result in any alteration of AHCA's investigative practices. Martin Memorial notes that, while the proposed rule provides a 15-day period for development of a plan of correction, AHCA's general enforcement rules already provide a ten-day period and asserts that the proposed rule is therefore inconsistent, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the agency. The specific time period set forth in the proposed rule is clearly applicable, and there is no credible evidence of legitimate confusion in this regard. AHCA has suggested that "lagging" hospitals could be specifically regarded as failing to meet the outcome benchmarks identified in the ACC-NCDR data, but the proposed rule makes no specific reference to any systematic classification of hospital performance, and the statute does not require that a minimal performance level be established. Martin Memorial asserts that the Proposed Rule 59A- 3.2085(17)(a)6. is capricious because it requires that "each hospital licensed to provide Level II adult cardiovascular services programs shall participate in the Society of Thoracic Surgeons National Database," but only physicians can participate in the database. The enacting statute requires such participation. Subsection 408.0361(5)(b), Florida Statutes (2008), directs AHCA to adopt rules that require Level I or Level II licensed hospitals to "participate in clinical outcome reporting systems operated by the American College of Cardiology and the Society for Thoracic Surgeons." The proposed rule clearly implements the directive established by the statute. There is no credible evidence that the proposed rule is irrational or that a licensed Level II hospital would be unable to meet the obligations of the rule by requiring that its thoracic surgeons participate in the STS database. Martin Memorial asserts that the requirement that an applicant hospital's chief executive officer attest to compliance with certain guidelines is vague because "it is unclear what guidelines apply and what guidelines will not." The evidence fails to support the assertion. The referenced requirement applicable to a hospital seeking licensure as a Level I facility is set forth at Proposed Rule 59A-3.2085(16)(a)2., which provides as follows: The request [for licensure] shall attest to the hospital’s intent and ability to comply with the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-214; and the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention); including guidelines for staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety. The referenced requirement applicable to a hospital seeking licensure as a Level II facility is set forth at Proposed Rule 59A-3.2085(17)(a)2., which provides as follows: The request [for licensure] shall attest to the hospital’s intent and ability to comply with applicable guidelines in the American College of Cardiology/Society for Cardiac Angiography and Interventions Clinical Expert Consensus Document on Cardiac Catheterization Laboratory Standards: Bashore et al, ACC/SCA&I Clinical Expert Consensus Document on Catheterization Laboratory Standards, JACC Vol. 37, No. 8, June 2001: 2170-2; in the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention); and in the ACC/AHA 2004 Guideline Update for Coronary Artery Bypass Graft Surgery: A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (Committee to Update the 1999 Guidelines for Coronary Artery Bypass Graft Surgery) Developed in Collaboration With the American Association for Thoracic Surgery and the Society of Thoracic Surgeons, including guidelines for staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety. Proposed Rule 59A-3.2085(16)(a)6. designates the guidelines applicable to the operation of Level I hospital services. Proposed Rule 59A-3.2085(17)(a) designates the guidelines applicable to the operation of Level II hospital services. The specific elements of the referenced guidelines are identified in both the statute and the proposed rules. Martin Memorial asserts that the proposed rule is vague as to training requirements applicable for physicians performing elective PCI in Level I hospitals. In making the assertion, Martin Memorial references training requirements established at Proposed Rule 59A-3.2085(16)(b)2. and applicable to Level I physicians performing emergent PCI with less than 12 months experience. There is no credible evidence that the proposed rule is vague. Proposed Rule 59A-3.2085(16)(b), in relevant part, provides as follows: Each cardiologist shall be an experienced physician who has performed a minimum of 75 interventional cardiology procedures, exclusive of fellowship training and within the previous 12 months from the date of the Level I adult cardiovascular licensure application or renewal application. Physicians with less than 12 months experience shall fulfill applicable training requirements in the ACC/AHA/SCAI 2005 Guideline Update for Percutaneous Coronary Intervention A Report of the American College of Cardiology/American Heart Association Task Force on Practice Guidelines (ACC/AHA/SCAI Writing Committee to Update the 2001 Guidelines for Percutaneous Coronary Intervention) prior to being allowed to perform emergency percutaneous coronary interventions in a hospital that is not licensed for a Level II adult cardiovascular services program. The rule provides that a physician with less than 12 months experience working in a Level I facility can perform emergent PCI only if applicable training requirements have been met. The proposed rule does not authorize performance of elective PCI in a Level I hospital by a physician not meeting the minimum annual procedure volume requirements. Proposed Rule 59A-3.2085(17)(b) clearly identifies the requirements applicable to Level II physicians and in relevant part provides as follows: Each cardiac surgeon shall be Board certified. New surgeons shall be Board certified within 4 years after completion of their fellowship. Experienced surgeons with greater than 10 years experience shall document that their training and experience preceded the availability of Board certification. Each cardiologist shall be an experienced physician who has performed a minimum of 75 interventional cardiology procedures, exclusive of fellowship training and within the previous 12 months from the date of the Level II adult cardiovascular licensure application or renewal application. Martin Memorial asserts that the experience requirements set forth at Proposed Rule 59A-3.2085(16)(b)3. (related to Level I hospitals) and Proposed Rule 59A- 3.2085(17)(b)3. (related to Level II hospitals) are arbitrary or capricious. The evidence fails to support the assertion. The text of both proposed rules provides as follows: The nursing and technical catheterization laboratory staff shall be experienced in handling acutely ill patients requiring intervention or balloon pump. Each member of the nursing and technical catheterization laboratory staff shall have at least 500 hours of previous experience in dedicated cardiac interventional laboratories at a hospital with a Level II adult cardiovascular services program. They shall be skilled in all aspects of interventional cardiology equipment, and must participate in a 24-hour-per-day, 365 day-per-year call schedule. Martin Memorial argues that there is no evidence to suggest that 500 hours of experience indicates that appropriate competency levels has been achieved. The evidence establishes that the required experience level was developed by AHCA's hospital licensure unit staff and is the training level currently applicable for hospitals providing emergency PCI services under existing exemptions from CON requirements. The training requirements are not arbitrary or capricious. Martin Memorial asserts that the Proposed Rule 59A-3.2085(16)(c)1. is arbitrary or capricious. The cited rule requires that a Level I hospital make provisions for the transfer of an emergent patient to a Level II hospital, as follows: A hospital provider of Level I adult cardiovascular services program must ensure it has systems in place for the emergent transfer of patients with intra-aortic balloon pump support to one or more hospitals licensed to operate a Level II adult cardiovascular services program. Formalized written transfer agreements developed specifically for emergency PCI patients must be developed with a hospital that operates a Level II adult cardiovascular services program. Written transport protocols must be in place to ensure safe and efficient transfer of a patient within 60 minutes. Transfer time is defined as the number of minutes between the recognition of an emergency as noted in the hospital’s internal log and the patient’s arrival at the receiving hospital. Transfer and transport agreements must be reviewed and tested at least every 3 months, with appropriate documentation maintained. Martin Memorial asserts that the rule is arbitrary or capricious because it does not include a requirement that a Level I hospital make provisions for the transfer of an elective patient to a Level II hospital. There is no credible evidence to support the assertion. There is no evidence that a patient undergoing elective PCI at a Level I would not be regarded as an emergent patient were circumstances such that an emergent transfer to a Level II hospital warranted. There is no credible evidence to suggest a rationale for transferring a non-emergent patient from a Level I to a Level II hospital. Martin Memorial asserts that the proposed rule enlarges, modifies or contravenes the enacting statute on grounds that, although AHCA is directed to adopt rules to ensure compliance "with the most recent guidelines of the American College of Cardiology and American Heart Association Guidelines for Cardiac Catheterization and Cardiac Catheterization Laboratories," the proposed rule provides that "in case of conflicts between the provisions of this rule and the designated guidelines" the rule provisions "shall prevail." Such provisions appear in Proposed Rule 59A-3.2085(13)(j), Proposed Rule 59A-3.2085(16)(g), and Proposed Rule 59A-3.2085(17)(f). The enacting statute requires that hospitals licensed under the provisions of the proposed rules comply with guidelines "for staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety." To the extent that guidelines that relate to elements other than "staffing, physician training and experience, operating procedures, equipment, physical plant, and patient selection criteria to ensure patient quality and safety," the enacting statute does not require compliance by properly- licensed Florida hospitals. Other than as addressed elsewhere herein, the evidence fails to identify any specific conflicts between the guidelines and the proposed rules and, accordingly, fails to establish that the cited proposed rules enlarge, modify or contravene the enacting statute.
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
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 Whether Petitioner's application for medical licensure by endorsement has expired and Respondent is therefore without authority to act on the application, as Petitioner claims? If not, whether the application should be denied on the grounds that Petitioner is guilty of violating Section 458.331(1)(a) and (gg), Florida Statutes,1 as Respondent has preliminarily determined.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' December 8, 2005, Prehearing Stipulation3: Petitioner is now, and has been since 1998, a Napperville, Illinois anesthesiologist licensed to practice medicine in the State of Illinois. At no time has she resided in Florida or used a Florida mailing address. "[A]t the end of 2002," Petitioner hired US Medical Licensing (USML) to help her obtain licenses to practice medicine in Florida, California, and Nevada, including "put[ting] together the application[s for such licensure] for [her]." In making these arrangements with USML, Petitioner dealt with USML's Melinda Hilterbrand, with whom she spoke over the telephone. Petitioner paid USML by credit card. USML first "charged [Petitioner's] credit card in January" of 2003 (using the credit card number Petitioner had given Ms. Hilterbrand during their telephone conversation). Petitioner provided USML, at USML's request, information and documentation (including a "standard credentialing application [she used in] Illinois") for USML to utilize in "put[ing] together [her Florida, California, and Nevada] application[s]." None of the information and documentation Petitioner provided was, to her knowledge, false or inaccurate. USML "put together the application[s]," as it had agreed to do. It then submitted them to the Florida, California, and Nevada medical licensing agencies without Petitioner's review, approval, or signature, notwithstanding that Petitioner had not given USML authorization to make such submissions. On June 16, 2003, Respondent received the Florida application that USML had "put together" for Petitioner (Petitioner's Florida Application) using the appropriate Respondent-developed form . Petitioner's Florida Application gave Petitioner's mailing address as "5631 Ballybunion Drive, Pace, Florida" (Pace, Florida Address). This was actually USML's mailing address, not Petitioner's. Petitioner's Florida Application gave Petitioner's telephone number as "(850) 994-4646." This was actually USML's telephone number, not Petitioner's. 10. Items 12, 12a., 12b., 15a., and 19b. on the application form on which Petitioner's Florida Application was submitted (Florida Application Form) asked the following questions: 12. Was attendance in Medical school for a period other then the normal curriculum? (If "yes," explain on a separate sheet providing accurate details.) 12a. Did you take a leave of absence during medical school? (If "yes," explain on a separate sheet providing accurate details.) 12b. Were you required to repeat any of your medical education? (If "yes," explain on a separate sheet providing accurate details.) 15a. Have you ever been dropped, suspended, placed on probation, expelled or requested to resign from a postgraduate training program? (If "yes," explain on a separate sheet providing accurate details.) 19b. Have you ever applied for, taken an examination for, or failed to receive specialty board certification or recertification for any reason?" (If "yes," explain on a separate sheet, providing full details). Each of these questions was incorrectly answered "no" on Petitioner's Florida Application. Item 15 on the Florida Application Form asked the applicant to "[l]ist in chronological order from date of graduation from Medical school, to present, all professional/postgraduate training (Internship/Residency/ Fellowship)." In response to this request, Petitioner's Florida Application listed her participation (following graduation from medical school) in programs at the University Medical Center in Las Vegas, Nevada, at the Medical College of Ohio in Toledo, Ohio, at the Advocate Illinois Masonic Medical Center in Chicago, Illinois, and at St. Anthony's Hospital in Chicago, Illinois. No other post-graduate programs were listed, notwithstanding that Petitioner had also received post-graduate training at the Vanderbilt University Medical Center. At the time, Petitioner did not even know that her Florida Application had been submitted, much less that it contained any erroneous information, inasmuch as she had not seen it or been made aware of its contents. As will be discussed in more detail below, it was not until approximately three months later that she first learned of her Florida Application’s submission, and it was even later, at her July 24, 2004, appearance before Respondent’s Credentials Committee, that she first became aware "that there was any incorrect information on [her] application." No one from USML had ever contacted Petitioner and asked her for her responses to items 12, 12a., 12b., 15, 15a., 19b. or any other item on the Florida Application Form. Item 18 on the Florida Application Form was an Affidavit of Applicant, which read, in pertinent part, as follows: I affirm that these statements are true and correct and recognize that providing false information [ma]y result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083 and 775.084, Florida Statutes. I hereby authorize all hospitals, institutions, my references, personal physicians, employers (past and present) and all governmental agencies and instrumentalities (local, state, federal or foreign) to release to the Florida Board of Medicine information which is material to my application for licensure. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice Medicine in the State of Florida. * * * Date of Expiration (Signature of Applicant required) 4 (Date Signed required) The Affidavit of Applicant in Petitioner's Florida Application contained what purported to be, but was not, Petitioner's signature. It was dated May 30, 2003. Petitioner had not authorized USML to sign her Florida Application on her behalf or otherwise "submit documents using [her] signature," nor was she "aware that [USML was] going to do [so]." On July 14, 2003, Respondent prepared and sent to the Pace, Florida Address (which, as noted above, was USML’s, not Petitioner’s, mailing address) a notice advising that Petitioner's Florida Application was "deficient" and explaining what needed to be done in order for the application to be considered "complete" (July 14, 2003, Deficiency Notice). The July 14, 2003, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of medical school transcripts from St. George's University Medical School and Ross University Medical School. It appears you transferred to Ross University after your third year. The transcript received from Ross University indicates your third year of medical school was repeated. Please submit a written explanation regarding attend[ing] two medical schools and why you answer[ed] no to question 12 (Was attendance in Medical School for a period other than the normal curriculum?) and 12b (Were you required to repeat any of your medical education?). A letter has been sent to St. George's University to confirm you left the medical school in good standing. Your file has been submitted in for advisement regarding your examination score reports submitted to the board office. It appears question 1 of your licensure application was left blank. However, you should apply by endorsement. Enclosed is a copy of page 1, please check the appropriate box. On page 3, question 10 needs to list the date your medical degree was granted. On page 3, question 15 needs to list the specialty area of training. Please complete the enclosed copy of page 4. Explain why you switched training programs from Medical College of Ohio to Advocate Illinois Masonic Medical Center. Did you leave the program in good standing? Were you offered a contract to continue and complete the program? A letter has been sent to the Medical College of Ohio to retrieve[] further information on your performance. Submit a written explanation on why you started your training programs with Medical College of Ohio and Advocate Illinois Masonic Medical Center off cycle. Please complete the enclosed fingerprint card. Submit a written account of your employment/non-employment activities from 1/89 to 6/92 and 6/93 to 4/94, and 5/96 to 1/97, and 11/98 to 2/99, and 11/02 to Present. Submit a copy of your legal name change document. Explain in writing why the name "Randa Mariana Prochazka" appears on your supporting documentation. The copy of your valid ECFMG certificate submitted to the board office is unreadable. The valid through area is not readable. Please resubmit a copy to the board office. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. Submit two current letters of recommendation, addressed to the Florida Board of Medicine. "To Whom It May Concern" is not acceptable. Recommendation letter(s) must be current, original, personable and from physician(s). We await licensure verification from the Illinois State Medical Board. The National Practitioner Data Bank, self-query has not been received. You may contact the NPDB at (800)767-6732. The AMA Physician Profile sheet has not been received. You may contact the AMA at (312) 484-5199. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -University Medical Center, regarding your Internship, from 6/92 to 6/93 -Medical College of Ohio, regarding your Residency, from 4/94 to 5/96 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 -Valley Ambulatory Surgery Center, verifying your staff privileges and good standing. * * * On August 15, 2003, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (August 15, 2003, Deficiency Notice). The August 15, 2003 Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of medical school transcripts from St. George's University Medical School and Ross University Medical School. It appears you transferred to Ross University after your third year. The transcript received from Ross University indicates your third year of medical school was repeated. Please submit a written explanation regarding attend[ing] two medical schools and why you answer[ed] no to question 12 (Was attendance in Medical School for a period other than the normal curriculum?) and 12b (Were you required to repeat any of your medical education?). We are in receipt of the evaluation form submitted by Valley Ambulatory Surgery Center. They indicate you did not perform competently and you were not regularly appointed. Please submit a written explanation. It appears question 1 of your licensure application was left blank. However, you should apply by endorsement. Enclosed is a copy of page 1, please check the appropriate box. On page 3, question 10 needs to list the date your medical degree was granted. On page 3, question 15 needs to list the specialty area of training. Please complete the enclosed copy of page 4. Explain why you switched training programs from Medical College of Ohio to Advocate Illinois Masonic Medical Center. Did you leave the program in good standing? Were you offered a contract to continue and complete the program? Submit a written explanation on why you started your training programs with Medical College of Ohio and Advocate Illinois Masonic Medical Center off cycle. Please complete the enclosed fingerprint card. Submit a written account of your employment/non-employment activities from 1/89 to 6/92 and 6/93 to 4/94, and 5/96 to 1/97, and 11/98 to 2/99, and 11/02 to Present. Submit a copy of your legal name change document. Explain in writing why the name "Randa Mariana Prochazka" appears on your supporting documentation. The copy of your valid ECFMG certificate submitted to the board office is unreadable. The valid through area is not readable. Please resubmit a copy to the board office. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. Submit two current letter of recommendation, addressed to the Florida Board of Medicine. "To Whom It May Concern" is not acceptable. Recommendation letter(s) must be current, original, personable and from physician(s). The National Practitioner Data Bank, self-query has not been received. You may contact the NPDB at (800) 767-6732. The AMA Physician Profile sheet has not been received. You may contact the AMA at (312) 484-5199. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -University Medical Center, regarding your Internship, from 6/92 to 6/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * It was not until sometime in or around September of 2003, during a telephone conversation (she had initiated) with USML's Ken Carroll, that Petitioner first learned that her Florida Application had been submitted to Respondent. Petitioner was "very surprised" when Mr. Carroll told her about the application's submission because she had thought that she was "going to get to look at the application" and "go over it" before it was sent to Respondent and she had not been given this opportunity. Nonetheless, she did not voice any objections to Mr. Carroll during her telephone conversation with him. Rather, "[she merely] asked him if there were any problems with [the application], and he said that everything was okay." Petitioner assumed, erroneously, that USML had completed the application accurately. She did not, at that time, request a copy of the application to verify the application's accuracy, nor did she do anything to indicate that she did not want Respondent to treat the application as hers. Indeed, until becoming aware of the actual contents of the application, it was her desire that Respondent act on the application and grant her licensure, and her actions were consistent with such a desire. On September 17, 2003, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application remained "deficient" and explaining what needed to be done in order for the application to be considered "complete" (September 17, 2003, Deficiency Notice). The September 17, 2003, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of medical school transcripts from St. George's University Medical School and Ross University Medical School. It appears you transferred to Ross University after your third year. The transcript received from Ross University indicates your third year of medical school was repeated. Please submit a written explanation regarding attend[ing] two medical schools and why you answer[ed] no to question 12 (Was attendance in Medical School for a period other than the normal curriculum?) and 12b (Were you required to repeat any of your medical education?). We are in receipt of the evaluation form submitted by Valley Ambulatory Surgery Center. They indicate you did not perform competently and you were not regularly appointed. Please submit a written explanation. It appears question 1 of your licensure application was left blank. However, you should apply by endorsement. Enclosed is a copy of page 1, please check the appropriate box. On page 3, question 10 needs to list the date your medical degree was granted. On page 3, question 15 needs to list the specialty area of training. Please complete the enclosed copy of page 4. Explain why you switched training programs from Medical College of Ohio to Advocate Illinois Masonic Medical Center. Did you leave the program in good standing? Were you offered a contract to continue and complete the program? Submit a written explanation on why you started your training programs with Medical College of Ohio and Advocate Illinois Masonic Medical Center off cycle. Please complete the enclosed fingerprint card. Submit a written account of your employment/non-employment activities from 1/89 to 6/92 and 6/93 to 4/94, and 5/96 to 1/97, and 11/98 to 2/99, and 11/02 to Present. Submit a copy of your legal name change document. Explain in writing why the name "Randa Mariana Prochazka" appears on your supporting documentation. The copy of your valid ECFMG certificate submitted to the board office is unreadable. The valid through area is not readable. Please resubmit a copy to the board office. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. Submit one current letter of recommendation, addressed to the Florida Board of Medicine. "To Whom It May Concern" is not acceptable. Recommendation letter(s) must be current, original, personable and from physician(s). The National Practitioner Data Bank, self-query has not been received. You may contact the NPDB at (800) 767-6732. The AMA Physician Profile submitted to the board office list[s] your graduation year incorrectly. Please have the AMA [Physician Profile] corrected. You may contact the AMA at (312) 464-5199. The AMA Physician Profile submitted to the board office indicates you had training with Vanderbilt University in Anesthesiology from 7/93 to 11/93. However, this training is not listed on question 15 of your licensure application. Please submit a written explanation. Also, a training evaluation form will have to be completed. A letter has been sent to the training program to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board office indicates your training with Medical College of Ohio is incomplete. Please provide a written explanation. A letter has been sent to the program to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to . . . our office. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency from 7/93 to 11/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * On September 26, 2003, Respondent received a letter, dated September 23, 2003, that was addressed to one of its employees, Lakeisha Henderson, and purported to be, but was not, from Petitioner and signed by her (September 26, 2003, Letter). The September 26, Letter, of which Petitioner had no knowledge, read as follows: In answer to your questions in the letter you sent me 9/17/03 [sic], I am providing these answers: I left St. George's because of the war in Grenada. I waited till I was sure the situation was stable and I also took a leave to study for my ECFMG. I was not satisfied with the situation at the school so I transferred/moved to Ross. One course prior to the start of my clinicals was required at Ross before I could start there in the clinical phase. This was a repeat from St. George[']s, but the only one. During this period, I had numerous child care and child health issues with my children which caused me to not be available for work and surgery. Page one is attached. Page three is attached. Page 4 is attached. In answer to question #7, there was a change at Medical College of Ohio. The Program Director left due to illness and subsequently the program started changing, so I finished my second year and then did my third year at another program. I left in good standing, getting credit for everything. I could have continued if I had elected to do so but I declined. In question 8, I started my third year based on what was needed to complete and where the class was. I was having a child and was allowed to start off cycle. Non-Employment Dates: 01/89-6/92-Child Birth and child care, studied for tests. 05/96-01/97-Unemployed 11/98-02/99-Moving and vacation 11/02-04/03-Unemployed 05/03-Present @ Surgical Center of Downers Grove, IL I thought the fingerprint card had been sent to your office (Question #9) Item #11 has been requested. Question #12. I was married for a short period of time and while married took the last name of husband Prochazka. When we divorced I retained my maiden name. Question #18- The program was overfilled with Residents and I elected to leave with no credit as I only attended for a short period of time. Question #19- I was given full credit for my training there, so I do not understand the question. I have attached my diploma. All other items have been requested and will be sent directly to you. On September 30, 2003, Respondent received another letter, also dated September 23, 2003, that was addressed to Ms. Henderson and purported to be, but was not, from Petitioner and signed by her (September 30, 2003, Letter). The September 30, 2003, Letter, of which Petitioner had no knowledge, read as follows: I am sorry I forgot to include the fact that I was arrested for disturbing the peace. I have included all those documents. I forgot till Ken Carroll asked. I thought it was not needed as it was over 10 years ago, sorry to cause any issues. I have also included my divorce papers. Among the documents that were "included" with the September 30, 2003, Letter to Ms. Henderson was a statement in Petitioner’s handwriting, dated June 10, 1996, which provided an explanation of the circumstances surrounding Petitioner’s arrest. This handwritten statement was among the materials that Petitioner had furnished USML for use in the application preparation process. On October 16, 2003, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (October 16, 2003, Deficiency Notice). The October 16, 2003, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. We are in receipt of the letter dated September 23, 2003, [in which] you indicate employment with Surgical Center of Downers [Grove]. Do you hold staff privileges with this hospital? If so, an evaluation form will have to be completed. On page 3, question 10 needs to list the date your medical degree was granted. A letter has been sent to the Medical College of Ohio to confirm your written explanation. Submit a written account of your employment/non-employment activities from 6/93 to 4/94. The copy of your valid ECFMG certificate submitted to the board office is unreadable. The valid through area is not readable. Please resubmit a copy to the board office. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. We are in receipt of the letter of recommendation from Dr. Kianoosh Jafari. Please submit an additional letter of recommendation, addressed to the Florida Board of Medicine. "To Whom It May Concern" is not acceptable. Recommendation letter(s) must be current, original, personable and from physician(s). The National Practitioner Data Bank, self-query has not been received. You may contact the NPDB at (800) 767-6732. The AMA Physician Profile submitted to the board office list[s] your graduation year incorrectly. Please have the AMA [Physician Profile] corrected. You may contact the AMA at (312) 484-5199. A letter has been sent to Vanderbilt University Medical Center to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. 19. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency, from 7/93 to 11/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * Respondent received, in response to the October 16, 2003, Deficiency Notice, a letter that purported to be, but was not, from Petitioner and signed by her. The letter, of which Petitioner had no knowledge, read as follows: Question #5 from letter of 10/13/03 [sic] I left [the] program after one year to move closer to my husband at the time wh[o] was in the Midwest. I spent the time from 7-93 till 4-94 looking for a program and applying to programs. Petitioner was not married during the time period referenced in the letter. To the extent that the letter suggests otherwise, it is inaccurate. In or around the end of October of 2003, Petitioner received a letter from the Nevada State Board of Medical Examiners (Nevada Board) concerning an application for licensure that USML had submitted to the Nevada Board on her behalf. The letter, which was dated October 28, 2003, read as follows: Dear Dr. Sawan: Please find enclosed a new application for medical licensure for the State of Nevada. You will be required to complete this application without the assistance of a credentialing service. The Nevada State Board of Medical Examiners does not accept any documentation from the credentialing company U.S. Medical Licensing and Credentialing. After receiving this letter, Petitioner telephoned Mr. Carroll and asked him why "this Nevada licensure application . . . was not accepted." Mr. Carroll, in response to Petitioner’s inquiry, explained that "there were some other doctors that did not get their licenses and they were upset with [USML]" and had complained to the Nevada Board. Having received this response to her inquiry, Petitioner "did not dig anymore" into the matter. Petitioner subsequently completed the application form she had been sent by the Nevada Board and then returned it. Approximately, four and a-half months later she received her Nevada medical license On November 17, 2003, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (November 17, 2003, Deficiency Notice). The November 17, 2003, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. We are in receipt of the letter dated September 23, 2003, [in which] you indicate employment with Surgical Center of Downers [Grove]. Do you hold staff privileges with this hospital? If so, an evaluation form will have to be completed. On page 3, question 10 needs to list the date your medical degree was granted. A letter has been sent to the Medical College of Ohio to confirm your written explanation. The copy of your valid ECFMG certificate submitted to the board office is unreadable. The valid through area is not readable. Please resubmit a copy to the board office. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. The AMA Physician Profile submitted to the board office list[s] your graduation year incorrectly. Please have the AMA [Physician Profile] corrected. You may contact the AMA at (312) 484-5199. A letter has been sent to Vanderbilt University Medical Center to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency, from 7/93 to 11/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * Respondent received, in response to the November 17, 2003, Deficiency Notice, a letter that purported to be, but was not, from Petitioner and signed by her. The letter, of which Petitioner had no knowledge, read as follows: Question #2 from letter of 11/14/03 [sic] Downers Grover Surgical Center is an out patient center. Not a hospital. Question #5 A copy of my ECFMG is enclosed. On December 19, 2003, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (December 19, 2003, Deficiency Notice). The December 19, 2003, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. On page 3, question 10 needs to list the date your medical degree was granted. A letter has been sent to the Medical College of Ohio to confirm your written explanation. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. The AMA Physician Profile submitted to the board office list[s] your graduation year incorrectly. Please have the AMA [Physician Profile] corrected. You may contact the AMA at (312) 484-5199. A letter has been sent to Vanderbilt University Medical Center to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency, from 7/93 to 11/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * The December 19, 2003, Deficiency Notice was accompanied by a letter from Ms. Henderson, addressed to Petitioner at the Pace, Florida Address (December 19, 2003, Deficiency Letter), which read as follows: Your application remains incomplete. Please review the attached update [the December 19, 2003, Deficiency Notice] outlining the remaining deficiencies. Please be advised previous malpractice, criminal charges, discipline, addictions/impairment, unfavorable evaluations, etc. may require that you appear before the Credentials Committee for determination of eligibility for licensure. If your appearance is required, you will be notified in writing once your file is complete. Any information received by this office may require additional explanation and/or documentation to be requested in order to further determine licensure eligibility. After all requested documentation is received, your file will be submitted for a standard supervisory review. Should additional information be required, you will be notified. Once your file is determined complete, it will be presented to the Board for consideration at the next scheduled meeting. As documentation is received in our office, an updated list of deficiencies will be mailed to you. Your application will remain incomplete until all deficiencies are completed. In addition, notify the Board office immediately in writing of any occurrence(s) that would in any way change or affect any answer given in the application or an answer provided in response to any of our direct questions to you. If I can be of any assistance, please contact me at (850) 245-4131 extension 3512 or e-mail me at Lakeisha_Henderson @doah.state.fl.us. On January 22, 2004, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (January 22, 2004, Deficiency Notice). The January 22, 2004, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. On page 3, question 10 needs to list the date your medical degree was granted. A letter has been sent to the Medical College of Ohio to confirm your written explanation. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. The AMA Physician Profile submitted to the board office list[s] your graduation year incorrectly. Please have the AMA [Physician Profile] corrected. You may contact the AMA at (312) 484-5199. A letter has been sent to Vanderbilt University Medical Center to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency, from 7/93 to 11/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * On February 24, 2004, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (February 24, 2004, Deficiency Notice). The February 24, 2004, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. A letter has been sent to the Medical College of Ohio to confirm your written explanation. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. The AMA Physician Profile submitted to the board office list[s] your graduation year incorrectly. Please have the AMA [Physician Profile] corrected. You may contact the AMA at (312) 484-5199. A letter has been sent to Vanderbilt University Medical Center to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency, from 7/93 to 11/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * On March 24, 2004, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (March 24, 2004, Deficiency Notice). The March 24, 2004, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. A letter has been sent to the Medical College of Ohio to confirm your written explanation. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. The AMA Physician Profile submitted to the board office list[s] your graduation year incorrectly. Please have the AMA [Physician Profile] corrected. You may contact the AMA at (312) 484-5199. A letter has been sent to Vanderbilt University Medical Center to retrieve[] further information on your performance. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. We await responses to inquiry/evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency, from 7/93 to 11/93 -Advocate Illinois Masonic Medical Center, regarding your Residency, from 1/97 to 11/98 * * * The March 24, 2004, Deficiency Notice was accompanied by a letter from Ms. Henderson, addressed to Petitioner at the Pace, Florida Address (March 24, 2004, Deficiency Letter). The body of the March 24, 2004, Deficiency Letter was identical to the body of the December 19, 2003, Deficiency Letter. On March 31, 2004, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (March 31, 2004, Deficiency Notice). The March 31, 2004, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION'S EXPIRATION DATE IS: June 15, 2004 APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. We are in receipt of the training evaluation form from Valley Ambulatory Surgery Center. The evaluation form indicates you resigned and your staff privileges were terminated. It appears you should have answered yes to question 18c. Please submit a written explanation as well [as] explain the no answer given for question 18c. A letter has been sent to Valley Ambulatory Surgery Center to retrieve[] further information. Enclosed for your review is a copy of the evaluation form. A letter will be sent to each training program requesting a copy of your training file. A letter has been sent to the Medical College of Ohio requesting further clarification on the letter submitted from them dated July 22, 2003. A letter has been sent to Vanderbilt University Medical Center to retrieve[] further information on your performance. We await verification of ECFMG examination results, direct from ECFMG, which must be requested by the applicant. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. We await responses to evaluation forms, which were mailed from our office to the following: -Vanderbilt University Medical Center, Department of Anesthesiology, regarding your Residency, from 7/93 to 11/93 * * * The March 31, 2004, Deficiency Notice was accompanied by a letter from Ms. Henderson, addressed to Petitioner at the Pace, Florida Address (March 31, 2004, Deficiency Letter). The body of the March 31, 2004, Deficiency Letter was identical to the bodies of the December 19, 2003, and March 24, 2004, Deficiency Letters. In or around March of 2004, during a telephone conversation with Mr. Carroll, Petitioner inquired as to whether her "talk[ing]" to Respondent "could help expedite" the processing of her Florida Application. Mr. Carroll, in turn, gave Petitioner Ms. Henderson’s name and telephone number and suggested Petitioner call Ms. Henderson. Petitioner followed Mr. Carroll’s suggestion and spoke with Ms. Henderson. Petitioner asked Ms. Henderson "if there [was] any problem with the application" and offered to provide "anything extra that [Ms. Henderson] may need." Ms. Henderson "did not say that there were any problems," but she did indicate "that she would like additional information," which she described for Petitioner. After speaking with Ms. Henderson, Petitioner prepared a handwritten letter, which she sent to Ms. Henderson by facsimile transmission on April 9, 2004. The letter read as follows: You requested an explanation for why staff privileges at Valley Ambulatory Surgery Center were terminated. It has been my understanding from their contract agreement that once I stop working there (resign), the staff privileges are automatically terminated. The following day, April 10, 2004, Petitioner sent to Ms. Henderson by facsimile transmission a handwritten list of references, as well as letters of recommendation (from others about her). Ms. Henderson had not asked Petitioner to provide these materials, but Petitioner sent them anyway, thinking that Ms. Henderson "might like to have them." On May 4, 2004, Respondent prepared and sent to the Pace, Florida Address a notice advising that Petitioner's Florida Application was still "deficient" and explaining what needed to be done in order for the application to be considered "complete" (May 4, 2004, Deficiency Notice). The May 4, 2004, Deficiency Notice read, in pertinent part, as follows: We will consider no application complete for licensure until we receive all requested documentation by the board. The applicant must ensure that the board receives all requested documentation. Verbal responses are inadmissible. * * * YOUR APPLICATION EXPIRATION DATE IS: June 15, 2004. APPLICATION SUBMITTED REMAINS DEFICIENT FOR LACK OF THE FOLLOWING: We are in receipt of the evaluation form from Advocate Illinois Medical Center. The evaluation form indicates they recommend you with some reservation. Please review the enclosed copy of the evaluation and provide a written response. Also, a letter has been sent to Advocate Illinois Medical Center to retrieve[] further information. A letter will be sent to each training program requesting a copy of your training file. A letter has been sent to Medical College of Ohio requesting further clarification on the letter submitted from them dated July 22, 2003. The AMA Physician Profile submitted to the board indicates you have an inactive resident license in Nevada. Please have the Nevada State Medical Board send a license verification letter to our office. * * * The May 4, 2004, Deficiency Notice was accompanied by a letter from Ms. Henderson addressed to Petitioner at the Pace, Florida Address (May 4, 2004, Deficiency Letter). The body of the May 4, 2004, Deficiency Letter was identical to the bodies of the December 19, 2003, March 24, 2004, and March 31, 2004, Deficiency Letters. Petitioner never received the May 4, 2004, Deficiency Notice or the May 4, 2004, Deficiency Letter; nor had she ever received any of the previous deficiency notices and letters. On June 15, 2004, Petitioner’s Florida Application was still incomplete inasmuch as Respondent had not received all of the information it had requested in the May 4, 2004, Deficiency Notice (including the letter from Petitioner requested in item 1 of the notice, the training files from University Medical Center in Las Vegas, Nevada, and Vanderbilt University Medical Center requested in item 2 of the notice, and the "license verification letter" requested in item 4 of the notice, which were all materials that were reasonable for Respondent to have asked for as part of the application review process). On June 28, 2004, Chandra Prine, Respondent’s Program Operations Administrator (and Ms. Henderson’s supervisor), prepared and sent to the Pace, Florida Address a letter addressed to Petitioner (June 28, 2004, Letter) advising her that she was required to make a personal appearance before the Credentials Committee on July 24, 2004, to discuss: Your medical education and your failure to answer yes to questions numbers 12, 12a & 12b on the licensure application. Failure to list your training at Vanderbilt from 7/93-11/93 and your failure to answer yes to question number 15a on the licensure application. In addition, the Committee may inquire into any other issues relating to your application and eligibility for licensure. Petitioner did not receive this letter. In July of 2004, Petitioner telephoned Ms. Henderson to inquire about the status of Petitioner’s Florida Application. She was unable to speak with Ms. Henderson, so she left a message asking Ms. Henderson to return the call. Petitioner subsequently received a telephone message from Ms. Henderson. In her message, Ms. Henderson stated that she thought Petitioner "was going to be going to a hearing" on her Florida Application, but suggested that Petitioner telephone Ms. Prine "just to be sure." Ms. Henderson did not say anything about there being "questions that were answered incorrectly on [the] application." After receiving Ms. Henderson’s message, Petitioner telephoned Ms. Prine and spoke with her. Petitioner told Ms. Prine that Ms. Henderson had left a message about an upcoming hearing concerning Petitioner’s Florida Application and had suggested that Petitioner contact Ms. Prine regarding the matter. Ms. Prine responded, "Yes, we sent you a letter saying you have to show up for this hearing," referring to the June 28, 2004, Letter. Petitioner replied that she had "not received any letter" from Respondent. Ms. Prine then "gave [Petitioner] the address" to which the June 28, Letter had been mailed. Petitioner informed Ms. Prine that this address (the Pace, Florida Address) was not hers. She then "gave [Ms. Prine] her home address for [Ms. Prine] to send [her] another letter." Petitioner asked Ms. Prine during their telephone conversation "what the hearing was going to be about." Ms. Prine's response was that Petitioner should be prepared to answer questions at the hearing regarding certain specific items on her Florida Application, which Ms. Prine identified by number. Petitioner told Ms. Prine that she "had never seen the application," to which Ms. Prine retorted, "Oh, but you signed it." Petitioner insisted that she "didn’t remember signing anything" and asked Ms. Prine to send her, along with the letter concerning the hearing, "a copy of whatever [she supposedly] signed." At no time during the telephone conversation did Ms. Prine tell Petitioner that her Florida Application contained any incorrect information, nor did she reveal to Petitioner anything about those items on the application that Petitioner would be questioned on at the hearing other than what their numbers were and that they pertained to her "schooling and training." It did not come as surprise to Petitioner that the Credentials Committee "wanted to hear from [her]" about her "schooling and training" given the difficulties she had encountered in these areas. Petitioner did not ask Ms. Prine to elaborate any further on what the Credentials Committee would inquire about at the hearing. Two days after her telephone conversation with Ms. Prine, Petitioner received a letter dated July 14, 2004, from Ms. Prine (July 14, 2004, Letter). The July 14, 2004, Letter was addressed to Petitioner at her Naperville, Illinois address and read as follows: This is in further reference to your application for licensure by endorsement. Please be advised that you are required to make a personal appearance before the Credentials Committee of the Board of Medicine to discuss the following: Your medical education and your failure to answer yes to questions numbers 12, 12a & 12b on the licensure application. Failure to list your training at Vanderbilt from 7/93-11/93 and your failure to answer yes to question number 15a on the licensure application. In addition, the Committee may inquire into any other issues relating to your application and eligibility for licensure. Date: Saturday, July 24, 2004 Time: 8:00 a.m. Location: Radisson Hotel 415 N. Monroe St. Tallahassee, FL 32301 (850) 224-6000 The meeting room will be posted in the lobby of the Hotel. Additionally, the Committee's recommendation on your application will be presented to the Board of Medicine, August 6-7, 2004 for final action. Thank you for your continued cooperation. Should you have any question regarding this matter, please feel free to contact me. Along with the July 14, 2004, Letter, Petitioner received from Ms. Prine the signature page of the September 26, 2003, Letter. After reviewing the latter, Petitioner telephoned Ms. Prine and left a message advising Ms. Prine that the signature on that document was not hers. The July 14, 2004, Letter was not accompanied by a copy of Petitioner’s Florida Application. Petitioner made a "personal appearance" before the Credentials Committee on July 24, 2004, as scheduled. As noted above, it was during this appearance that she first learned that her Florida Application contained information that was incorrect. In response to questioning, Petitioner truthfully told the Credentials Committee that she had not "even seen the application" and that it was "not [her] signature" that was on the application in that she did not sign it. The Credentials Committee voted to recommend the denial of Petitioner’s Florida Application, a recommendation that Respondent subsequently followed. On August 2, 2004, following her appearance before the Credentials Committee, Petitioner prepared and sent a letter to Ms. Prine formally requesting, for the first time, a "complete copy of [her] application for the Florida medical license [be] mailed to [her]" at her Napperville, Illinois address. On August 10, 2004, Petitioner prepared and sent to Ms. Prine another letter, which read as follows: I am writing to ask that you do not accept any communication from the USML agency regarding my application. I am not working through them anymore. Please call me directly at (773) 405-3718, or send all mail to: RANDA SAWAN M.D. 1304 Dunrabin Road Naperville, IL 60540 Your assistance with this matter will be greatly appreciated. Thank you. After Petitioner had made several post-Credential Committee hearing requests to Mr. Carroll that he send her copies of "anything [he had] involving [her] application," Petitioner received the following letter, dated September 23, 2004, from Mr. Carroll: I am sorry to inform you but your files along with several hundred other physicians' files were destroyed while in our storage area due to Hurricane Ivan which made a direct hit on Pensacola. Our Pensacola office is operating but has limited phone and no internet or cable. Again I apologize for this inconvenience. Petitioner never received any of the documents she had requested from Mr. Carroll.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a final order finding that Petitioner's Florida Application expired, without being acted on, one year after it was filed and that it is therefore too late for Respondent to either approve or deny the application. DONE AND ENTERED this 7th day of March, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2006.
