11-005094 Fawzi M. Awad vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, January 12, 2012.

Summary: Petitioner's application for licensure as a healthcare risk manager was complete upon submission of his college transcripts, even if his academic degree should ultimately prove insufficient for licensure.

Case No. 11-5094

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

FAWZI M. AWAD, ) )

)

Petitioner, )

vs. )

)

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Respondent. )

)

On December 8 and 20, 2011, a duly-noticed hearing was held

in Tallahassee, Florida, with Petitioner appearing by telephone

from Minnesota, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Fawzi M. Awad, pro se

on December 8, 2011

1717 Fair Oaks Drive

White Bear, Minnesota 55110

Thomas K. Cambre, Qualified Representative

on December 20, 2011

Merrigan, Brandt, Ostenso & Cambre, P.A.

25 Ninth Avenue North

Hopkins, Minnesota 55343-0458

For Respondent: D. Carlton Enfinger II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for licensure

as a health care risk manager is complete, pursuant to sections

408.806 and 395.10974, Florida Statutes (2011) 1/ and implementing

regulations.

PRELIMINARY STATEMENT

In a notice dated September 15, 2011, Respondent advised

Petitioner that his application for licensure as a health care

risk manager was deemed incomplete and was being withdrawn from

further consideration pursuant to section 408.806(3)(b). On

September 26, 2011, Petitioner requested an administrative

hearing. On October 3, 2011, Respondent referred the matter to

the Division of Administrative Hearings for assignment of an

administrative law judge to conduct the final hearing.

In a Joint Response to Initial Order, the parties requested

that Petitioner be permitted to appear by telephone from

Minnesota. The Notice of Hearing granted this request, provided

that the Petitioner arrange for the services of a Notary Public

to swear in Petitioner and other witnesses at the Minnesota

location. At the December 8, 2011, hearing, Respondent

presented the testimony of two witnesses, and offered five

exhibits, which were received into evidence. Petitioner cross-

examined Respondent’s witnesses, but did not have a notary

public present and was not permitted to testify. The hearing

was continued until December 20, 2011. Petitioner requested

representation by a Qualified Representative, which was

approved. Petitioner testified and offered three exhibits,

which were received into evidence.

Neither party requested a copy of the transcript. Both

parties submitted Proposed Recommended Orders on December 30,

2011, which were considered.

FINDINGS OF FACT

Based on the evidence presented at hearing, the following

Findings of Fact are made:

1. Petitioner filed an application with Respondent for

licensure as a health care risk manager on August 15, 2011. He

sought licensure based upon his attainment of credentials as a

Health Care Administrator.

2. On August 20, 2011, Petitioner received by certified

mail a notice from Respondent acknowledging receipt of his

application and advising that the application was incomplete.

The letter listed three omissions: an application addendum;

documentation of background screening requirements; and evidence

of credentials as a Health Care Administrator. The third

omission, the one relevant here, was described as follows:

Evidence of credentials as a Health Care

Administrator as defined in Rule 59A-

10.032(14), F.A.C. An official transcript

submitted from the college that satisfies

the above rule.

The letter explained that the missing information had to be

submitted within 21 days from the receipt of the letter or the

application would be denied.

3. On the day Petitioner received the deficiency letter,

he telephoned Respondent to get clarification about the

omissions. He also contacted the University of Wisconsin – Eau

Claire and arranged for them to send Respondent his college

transcripts.

4. Respondent received Petitioner’s transcripts on

September 9, 2011, when they were date-stamped as received by

Central Systems Management Unit, before the deadline of

September 12. The transcripts were date-stamped within Health

Facility Regulation, Hospital and Outpatient Services almost a

week later on September 15, 2011.

5. Petitioner’s degrees, as reflected in his transcripts,

were a Bachelor of Science in Environmental and Public Health

and a Master of Science in Environmental and Public Health.

Petitioner does not have a degree in hospital administration,

hospital finance, hospital management, or public health

administration.

6. Petitioner’s transcripts demonstrate successful

completion of the following college level courses: ALLH 215,

Public Health Programs; ALLH 470, Public Health Administration;

BEAM 517, Administrative Management; ENPH 730, Environmental

Health Administration; BEAM 627, Seminar in Administrative

Management, ENPH 780, Practicum in Environmental Health, and

ENPH 797, Independent Study.

7. After reviewing Petitioner’s filings in response to the

Agency’s omissions letter, Respondent made a preliminary

determination that the educational transcripts submitted by

Petitioner in support of his application were insufficient, as

his degrees did not appear to meet the criteria set forth in

Florida Administrative Code Rule 59A-10.032(14), defining

“Health Care Administrator.”

8. Respondent sent a letter to Petitioner dated

September 15, 2011, informing him of the Agency’s intent to deem

his application incomplete and withdraw it from further review,

stating that the outstanding issue was the failure to timely

submit evidence of credentials as a Health Care Administrator.

As stipulated at hearing, other omissions or deficiencies in

Petitioner’s application were corrected and are not in issue in

this proceeding.

9. In a letter dated September 20, 2011, Petitioner

requested reconsideration of Respondent’s decision and inquired

about the possibility of variance or waiver of rule 59A-

10.032(14), although he did not file a petition meeting the

requirements of section 120.542, Florida Statutes, or applicable

rules.

10. On September 26, 2011, Petitioner requested a formal

hearing on Respondent’s intent to deem his application

incomplete and withdraw it from further review.

11. Petitioner is substantially affected by the intended

action of Respondent.

12. Testimony at hearing demonstrated that the courses

enumerated above, including the practicum at Sacred Heart

Hospital, taught management and administration of health care

facilities, though not management or administration of Florida-

licensed health care facilities.

13. Petitioner is currently enrolled in Walden University

and expects to receive a Doctorate in Healthcare Administration

by the end of 2012.

14. Testimony at hearing demonstrated that Petitioner has

extensive practical experience in management of health care

facilities. He had experience in Jeddah, Saudi Arabia as the

Public Health and Preventative Medicine Section Manager with

National Guard Medical Services, overseeing 10 or 11 primary

care health clinics; experience as the Quality Assurance Manager

at the 500-bed National Guard Hospital in Jeddah; experience as

the Senior Environmental Health Specialist with the Ramsey

County (Minnesota) Department of Public Health; experience as

the Director of Total Quality Management Department at the

International Medical Center, a Joint Commission Accredited 300-

bed hospital and Cleveland Clinic Partner in Saudi Arabia, all

in a career spanning over 24 years.

15. Petitioner’s application for licensure as a health

care risk manager was complete on September 9, 2011.

16. Petitioner’s transcripts demonstrate successful

completion of two degrees with college level courses in the

management and administration of health care facilities, but not

college level courses in the management or administration of a

Florida hospital licensed under chapter 395 or a Florida

ambulatory surgical center licensed under chapter 395.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

18. Respondent is the state agency responsible for the

licensing and regulation of health care risk managers pursuant

to sections 395.10971–10975.

19. Petitioner has demonstrated standing to maintain this

proceeding.

20. Under section 395.10973(1), Respondent has been given

authority to adopt rules to implement its licensing

responsibilities.

21. Respondent has adopted Florida Administrative Code

Rule 59A-10.033, containing the general qualifications for

licensure as a health care risk manager. It has adopted rule

section 59A-10.032, containing definitions relating to licensure

of health care risk managers. It has also adopted rule section

59A-10.002 containing definitions with application to licensure

“under Parts I and II” of chapter 59A-10.

22. Rule section 59A-10.033(1) provides:

(1) Any person desiring to be certified as

a health care risk manager shall submit an

application on Form AHCA/RM-001, entitled

“Application for Health Care Risk Manager

Licensure.” Form AHCA/RM-001 is hereby

incorporated by reference and shall become

effective on July 9, 1986. This form may be

obtained from the Agency for Health Care

Administration, Risk Management Office, 2727

Mahan Drive, Tallahassee, Florida 32308. In

order to qualify, the applicant shall submit

evidence satisfactory to the department

which demonstrates the applicant’s

competence, by education, training, or

experience, in the following areas:

(a) Applicable standards of health care

risk management.

(b) Applicable federal, state, and local

health and safety laws and rules.

(c) General risk management administration.

(d) Patient care.

(e) Medical care.

(f) Personal and social care.

(g) Accident prevention.

(h) Departmental organization and

management.

(i) Community interrelationships.

(j) Medical terminology.

(2) An applicant shall be considered

qualified as competent in the areas required

by subsection (1) if he or she submits

evidence of one of the following:

(a) Attainment of Nominee Level or advanced

credential status from the International

Healthcare Security and Safety Foundation.

(b) Attainment of credentials as a Fellow

or Diplomate of the American Society for

Hospital Risk Management.

(c) Attainment of credentials as a Health

Care Professional as defined above and:

1. Satisfactory completion of a risk

management educational program approved

pursuant to Rule 59A-10.037, F.A.C.; or

2. Experience which qualifies under

paragraphs (a), (b), (c), (g), and (h) of

subsection 59A-10.036(2), F.A.C.

(d) Attainment of credentials as a Health

Care Administrator as defined above and:

1. Satisfactory completion of a risk

management educational program approved

pursuant to Rule 59A-10.037, F.A.C.; or

2. Experience which qualifies under

paragraphs (a) and (g) of subsection 59A-

10.036(2), F.A.C.

(e) Satisfactory completion of an

educational program accredited by the

Committee on Allied Health Education

Accreditation for Medical Record

Administrators or Medical Record Technicians

and satisfactory completion of a risk

management educational program approved

pursuant to Rule 59A-10.037, F.A.C.

(f) Attainment of credentials as a Basic

Risk Manager as defined above and:

1. Satisfactory completion of a health care

educational program approved pursuant to

Rule 59A-10.037, F.A.C.; or

2. Experience which qualifies under

paragraphs (c), (d), (e), (f), and (g) of

subsection 59A-10.036(2), F.A.C.

(g) Attainment of a degree from an

accredited law school and attainment or

completion of one of the following:

1. An advanced degree in health law from an

accredited law school or a degree in a

health related field from an accredited

institution of higher learning; or

2. Satisfactory completion of a health care

educational program approved pursuant to

Rule 59A-10.037, F.A.C.; or

3. Experience with health care risk

management or medical malpractice claims

administration as a result of being employed

or retained for a period of one year by a

health care facility to advise, direct, or

coordinate a risk management program.

(h) Satisfactory completion of a one year

Health Care Risk Manager Training Program

approved pursuant to Rule 59A-10.034, F.A.C.

(i) Satisfactory completion of two years of

college level studies approved pursuant to

Rule 59A-10.035, F.A.C.

(j) Satisfactory completion of one year of

practical experience in health care risk

management which meets the requirements of

Rule 59A-10.036, F.A.C.

23. Rule subsection 59A-10.033(1) therefore establishes

qualifications for licensure as a health care risk manager,

requiring demonstration of competency in ten competency areas,

while subsection (2) then creates several distinct pathways

through which an applicant “shall be considered” as competent in

the areas set forth in subsection (1). Paragraph (2)(d)

establishes one such pathway as attainment of credentials as a

Health Care Administrator.

24. It is not entirely clear from the structure of rule

section 59A-10.033 whether the pathways of (2) are to be

construed as “safe harbors” or if the rule is instead intended

to limit applicants to one of the pathways. If the latter, the

rule purports to deny licensure to an applicant otherwise

demonstrating qualification under all criteria of the statute,

but simply failing to fit into any of the particular pathways

established by Agency rule. Section 395.10974(3) provides that

the Agency shall issue a license to practice health care risk

management to any applicant who qualifies under the statute.

25. Rule 59A-10.032(14) provides that:

“[T]he term ‘Health Care Administrator’

means a person who has a degree, awarded by

an accredited institution of higher

learning, in hospital administration,

hospital finance, hospital management,

public health administration, or other such

education which included successful

completion of college level courses in the

management and administration of a health

care facility.”

26. Rule section 59A-10.002(15) provides that, “‘health

care facility’ or ‘facility’ means a facility described in

subsections (2) and (3) above.”

27. Rule 59A-10.002(2) and (3) in turn provide that,

Statutes and Chapter 59A-3, F.A.C.” and “‘Ambulatory surgical

center’ means an ambulatory surgical center licensed under

Chapter 59A-3, F.A.C.”

28. The definitions contained in rule 59A-10.002 seem

outdated. Several terms that are defined, such as “Personnel

action” in fact are apparently no longer even in the chapter.

seem to have been originally intended to be applicable to

provisions governing the administration of Florida licensed

facilities.

29. Respondent suggests that acceptable college level

coursework must teach the management and administration of

Florida-licensed health care facilities. Since the specific

requirement that an applicant may demonstrate successful

completion of coursework in management and administration of a

health care facility does not appear in section 395.10974, it is

not clear whether or not imposing a “Florida-licensed”

requirement would result in a conflict with the implemented

statute. Section 395.10974(1) permits an applicant to

demonstrate competence in each area by education or experience.

Section 395.10974(2)(c)2. refers only to “college-level

studies.” Cf. Dep’t of HRS v. McTigue , 387 So. 2d 454 (Fla. 1st

DCA, 1980)(addition by rule of the adjective “Florida” before

the word “physician” was invalid contravention of statutory

language).

30. The issue here is whether or not the omission of

“evidence of credentials as a Health Care Administrator as

defined in Rule 59A-10.032(14), F.A.C.” was corrected by

Petitioner’s submission of his transcripts.

31. Respondent contends that the coursework reflected on

the transcripts is not sufficient to demonstrate that the

awarded degrees qualify Petitioner as a Health Care

Administrator. Even if true, this is not determinative. The

question for this hearing is not whether the application is

sufficient, but only whether it is complete. As noted above,

the identified omission was:

Evidence of credentials as a Health Care

Administrator as defined in Rule 59A-

10.032(14), F.A.C. An official transcript

submitted from the college that satisfies

the above rule.

Taken in a pedantic sense, it is true that no transcript

submitted by any applicant could ever result in a “complete”

application unless and until it was determined that the

transcript was in fact sufficient to meet requirements for

licensure. But this interpretation merges the concepts of

completeness and sufficiency in a manner inconsistent with the

license application process set forth in sections 408.806 and

120.60.

32. Section 408.806(3) provides:

(3)(a) Upon receipt of an application for a

license, the agency shall examine the

application and, within 30 days after

receipt, notify the applicant in writing of

any apparent errors or omissions and request

any additional information required.

(b) Requested information omitted from an

application for licensure, license renewal,

or change of ownership, other than an

inspection, must be filed with the agency

within 21 days after the agency’s request

for omitted information or the application

shall be deemed incomplete and shall be

withdrawn from further consideration and the

fees shall be forfeited.

(c) Within 60 days after the receipt of a

complete application, the agency shall

approve or deny the application.

33. Under the statute, a complete application does not

conclude the review process. Rather, the “60-day clock” within

which Respondent must evaluate and grant or deny the application

begins to run only when the application is complete.

34. Section 120.60(1) provides:

An application is complete upon receipt of

all requested information and correction of

any error or omission for which the

applicant was timely notified or when the

time for such notification has expired.

35. Petitioner’s original application did not include

college transcripts or other evidence of Petitioner’s academic

degrees and coursework. Respondent notified Petitioner of this

omission within 30 days, consistent with statutory provisions.

Petitioner then supplied transcripts showing his degrees and

coursework. This corrected the omission from his application.

While Respondent may ultimately conclude that Petitioner’s

degrees and coursework are not sufficient

to demonstrate that

Petitioner possesses an appropriate degree, this does not mean

the application is therefore “incomplete.” Petitioner’s

application for licensure as a health care risk manager was

complete on September 9, 2011.

36. Should Respondent desire additional information not

requested within 30 days of the application’s submittal, it may

request it, but it may not subsequently deny the application on

the procedural ground of failure to supply this information, but

only on substantive grounds after evaluating the application.

§ 120.60(1), Fla. Stat. Respondent may give an applicant an

opportunity to waive “default” licensure provisions to allow

processing to continue.

37. During a section 120.57 hearing process to consider

whether or not an application is complete, the approval process

timelines are tolled. Silver Show v. Dep’t of Bus. & Prof’l

Reg. , 706 So. 2d 386, 389 (Fla. 4th DCA 1998).

38. Petitioner has the burden of proving his application

is complete and will have the burden to show he is qualified to

obtain licensure as a health care risk manager. Dep’t of

Banking & Fin. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla.

1996).

39. Under section 120.542, an agency may grant a variance

or waiver to requirements of their rules if the person subject

to the rule demonstrates that the purpose of the statute has

been achieved and application of the rule would create a

substantial hardship or would violate principles of fairness.

40. Section 120.542(4) provides that agencies shall

provide certain information on waivers and variances to persons

who inquire about the possibility of relief from rule

requirements.

41. Pursuant to section 120.57(4), informal disposition

may be made of any proceeding by stipulation, agreed settlement,

or consent order.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is:

RECOMMENDED that the Agency for Health Care Administration

enter a final order finding that Petitioner's application for

licensure as a health care risk manager was complete on

September 9, 2011, and proceed to process his application.

DONE AND ENTERED this 12th day of January, 2012, in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2012.

ENDNOTE

1/ All statutory references are to the 2011 Florida Statutes,

except as otherwise indicated. Since a final order has not yet

been issued in this case, Petitioner's application for licensure

is governed by current law. See Agency for Health Care Admin.

v. Mount Sinai Med. Ctr. , 690 So. 2d 689, 691 (Fla. 1st DCA

1997)(agency must apply law in effect at the time it makes its

final decision).

COPIES FURNISHED:

D. Carlton Enfinger, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Fawzi M. Awad

1717 Fair Oaks Drive

White Bear, Minnesota 55110

Thomas K. Cambre, Qualified Representative

Merrigan, Brandt, Ostenso & Cambre, P.A.

25 Ninth Avenue North

Hopkins, Minnesota 55343-0458

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

William Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.