13-004651 Leon Rawner, M.D. vs. Board Of Medicine
 Status: Closed
Recommended Order on Monday, April 28, 2014.


View Dockets  
Summary: Petitioner demonstrated that he met the requirements for licensure by endorsement. Petitioner did not demonstrate the Board was relying on an unadiopted rule.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8LEON RAWNER, M.D.,

11Petitioner,

12vs. Case No. 13 - 4651

18BOARD OF MEDICINE,

21Respondent.

22_______________________________/

23RECOMMENDED ORDER

25This case is before Administrative Law Jud ge Lisa Shearer

35Nelson of the Division of Administrative Hearings pursuant to the

45partiesÓ Joint Motion to Cancel Hearing and Set Date to File

56Proposed Recommended Orders. Consistent with the joint motion of

65the parties, the case was submitted for decisio n based upon a

77stipulated record.

79APPEARANCES

80For Petitioner: Amy W. Schrader, Esquire

86GrayRobinson, P.A.

88301 South Bronough Street

92Post Office Box 11189

96Tallahassee, Florida 32302

99For Respondent: Donna C. McNulty, Esquire

105Mich ael T. Flury, Esquire

110Office of the Attorney General

115The Capitol, Plaza Level One

120Tallahassee, Florida 32399

123STATEMENT OF THE ISSUE S

128The issue s to be determined are whether Petitioner meets the

139requirements for licensure by endorsement pursuant to section

147458.313, Florida Statutes (2013) , and whether the BoardÓs

155interpretation of section 458.311(3), Florida Statutes, is an

163unadopted rule in violation of section 120.54(1) , Florida

171Statutes (2013) .

174PRELIMINARY STATEMENT

176On October 22, 2013 , the Respondent, Florida Board of

185Medicine (the Board), entered an Amended Notice of Intent to Deny

196Licensure to Petitioner, Leon Rawner, M.D. (Dr. Rawner), based on

206the BoardÓs determination that Dr. Rawner failed to meet the

216requirements for licensure. Petitioner filed a Petition for

224Administrative Hearing on November 15, 2013, and on November 27,

2342013, the case was referred to the Division of Administrative

244Hearings for the assignment of an administrative law judge.

253The case was originally noticed for hearing to commence on

263Ja nuary 27, 2014. O n January 21, 2014, the parties filed a Joint

277Motion to Cancel Hearing and Set Date to File Proposed

287Recommended Orders or in the Alternative to Continue Hearing. In

297the motion, the parties indicated that they be lieved there are no

309disputed issues of material fact, and requested that the parties

319be permitted to submit proposed recommended orders or motions as

329directed by the administrative law judge. In the event that the

340motion was denied, the parties requested that the hearing be

350continued.

351The hearing was canceled by Order Canceling Hearing and

360Setting Schedule entered on January 22, 2014 . Consistent with

370the January 21, 2014 , motion, the Order canceled the hearing and

381directed the parties to file a Joint St ipulation no later than

393February 10, and proposed recommended orders no later than

402February 17, 2014. The Joint Stipulation and the Proposed

411Recommended Orders were timely filed and have been carefully

420considered in the preparation of this Recommended Ord er and the

431stipulated facts, where relevant, have been included in the

440findings of fact below . Joint Exhibits 1 - 6 were also filed with

454the Division on February 17, 2014. Joint Exhibit 6, comprising

464over 1,000 pages of legislative materials, was the subje ct of a

477Motion for Official Recognition filed January 16, 2014. Given

486the partiesÓ designation of the se same materials as Joint Exhibit

4976, the Motion for Official Recognition is denied as moot.

507FINDING S OF FACT

511Based upon the stipulations of the parties and the

520documentary evidence presented , the following facts are found:

5281. Petitioner, Leon Rawner, M.D., is a licensed medical

537doctor in the s tate of Wisconsin and an applicant for licensure

549as a medical doctor by endorsement in Florida.

5572. The Florida Board of Medicine is the agency charged with

568the licensing and regulation of allopathic medical doctors

576pursuant to section 20.43 and chapters 456 and 458, Florida

586Statutes. Applicants for licensure by endorsement must meet the

595requirements specified in section 458.313. Those requirements

602include meeting the qualifications identified in section

609458.311(1)(b) - (g) (al ternative one) or section 458.31 1 (1) (b) - (e),

623(g), and ( 3 ) (alternative two).

6303 . Petitioner is over 21 years of age, and has submitted a

643set of fingerprints on a form and under procedures specified by

654the Department of Health, along with a payment in an amount equal

666to the costs incurred by the Department of Health. Petitioner

676has successfully passed the required criminal background

683screening.

6844 . PetitionerÓs application for licensure by endorsement

692demonstrates that he is licensed to practice medicine in another

702jurisdiction, the state of Wisconsin, and that he has been active

713in the practice of medicine for at least two of the four years

726imm ediately preceding the application.

7315 . Petitioner has a clean record in his current medical

742practice in Wisconsin and is not under any investigation in any

753jurisdiction for an act or offense which would constitute a

763violation under section 458.331 , and ha s not committed any act or

775offense in any jurisdiction which would constitute the basis for

785disciplining a physician pursuant to section 458.331.

7926 . Petitioner has completed the equivalent of two academic

802years of pre - professional, postsecondary education , as determined

811by rule of the Board , which included, at a minimum, courses in

823anatomy, biology, and chemistry prior to entering medical school.

8327 . Petitioner received a bachelorÓs degree from Brandeis

841University, an accredited United States university.

8478 . Petitioner has passed the appropriate medical licensure

856examinations, the U nited States Medical Licensing E xamination,

865Step - 1, Step - 2, and Step - 3.

8759 . Petitioner holds an active, valid certificate issued by

885the Educational Commission for Foreign Medical Graduates (ECFMG)

893and has passed the examination used by the C ommission.

90310 . In 2006, Petitioner graduated with a degre e of Doctor

915of Medicine from American University of the Caribbean School of

925Medicine.

9261 1 . Petitioner graduated from an allopathic fore ign medical

937school (American University of the Caribbean School of Medicine)

946which is recognized by the World Health Organization.

9541 2 . Petitioner completed all of the formal requ irements for

966graduation from American University of the Caribbean School of

975M edicine.

9771 3 . PetitionerÓs application for licensure demonstrates

985that he has completed the academic year of supervised medical

995training prior to graduation as required under section

1003458.311(3)(d).

10041 4 . Petitioner did not graduate from an allopathic medica l

1016school or allopathic college recognized and approved by an

1025accrediting agency recognized by the United States Office of

1034Education.

10351 5 . Petitioner did not graduate from an allopathic medical

1046school or allopathic college within a territorial jurisdiction of

1055the United States recognized by the accrediting agency of the

1065governmental body of that jurisdiction.

10701 6 . Petitioner is not a graduate of an allopathic foreign

1082medical school registered with the World Health Organization and

1091certified pursuant to secti on 458.314, Florida Statutes, as

1100having met the standards required to accredit medical schools in

1110the United States or reasonably comparable standards.

11171 7 . Petitioner has not completed an approved residency or

1128fellowship of at least two years in one specia lty area.

11391 8 . PetitionerÓs application for licensure demonstrates

1147that he does not meet the postgraduate training r equirements

1157under section 458.31 1(1)(f)3.

116119 . Petitioner completed one year of residency training in

1171th e Internal Medicine Program at M t. S inai - Elmhurst Hospital

1184Center, Queens, New York.

11882 0 . Besides the residency training program at Mt. Sinai Î

1200Elmhurst Hospital Center, Queens, New York, Petitioner has not

1209completed any other residency or fellowship training.

12162 1 . Petitioner does not have t wo years of any residency or

1230fellowship training which can be counted toward regular or

1239subspecialty certification by a board recognized and certified by

1248the American Board of Medical Specialties.

12542 2 . Since January 24, 2011, Dr. Rawner has been practicing

1266medicine in Wausau, Wisconsin, as a staff physician with Knee

1276Pain Solutions Center. Accordingly, he has been in the active

1286practice of medicine for the two years preceding his Florida

1296application.

12972 3 . Dr. Rawner submitted his application for licensure by

1308endorsement on March 13, 2013.

13132 4 . Supplemental documentation was filed with the Board by

1324letter dated March 18, 2013. In that letter, Dr. Rawner

1334expressly stated that he was relying on the second alternative

1344for establishing licensure by endorsement, which does not include

1353the requirements identified in subsection 458.311(1)(f).

13592 5 . On April 3, 2013, the Board requested additional

1370information, and in response, Dr. Rawner provided a copy of his

1381undergraduate degree and information related to his one y ear of

1392supervised medical training.

13952 6 . Other information requested in the April 3, 2013,

1406letter was sent directly to the Board office by the appropriate

1417age ncies, including an official United States medical examination

1426transcript, indicating that Dr. Raw ner passed USMLE Steps I, II,

1437and III; a letter from the residency program director, indicating

1447that Dr. Rawner completed one year of residency training;

1456confirmation from the Wisconsin Medical Board confirming his

1464current, valid medical license in the sta te of Wisconsin; an

1475American Medical Association (AMA) profile letter; an d

1483Dr. RawnerÓs fingerprints and clear background check.

14902 7 . Program Operations Administrator Chandra Prine notified

1499Dr. Rawner by l etter dated June 26, 2013, that he was required to

1513appear before the Credentials Committee of the Board. The

1522purpose of the appearance was to discuss:

1529¤ Failure to meet the training requirement

1536pursuant to section 458.313(1)(a),

1540458.311 (1) (f)3.c., Florida Statutes.

1545¤ Failure to complete an academic year of

1553supervised clinical training pursuant to

1558section 458.311(3)(d), Florida Statutes.

15622 8 . Dr. Rawner appeared before the credentials committee of

1573the Board of Medicine on August 1, 2013. The committee

1583recommended that his license be denied.

158929 . On Aug ust 22, 2013, the Board of Medicine issued a

1602Notice of Intent to Deny Licensure, stating that it intended to

1613deny Dr. RawnerÓs application because Dr. Rawner did not meet the

1624requirements of section 458.313(1), which requires an applicant

1632to meet the quali fications outlined in either section

1641458.311(1)(b) - (g) (alternative one) , or in section 458.311(1)(b) -

1651(e), (g) and (3) (alternative two) . The notice stated that with

1663respect to alternative one, Dr. Rawner did not meet the

1673requirements of section 458.311(1 )(f)3., because he had not

1682completed an approved residency or fellowship of at least two

1692years in one specialty area. With respect to alternative two,

1702the Board determined that Dr. Rawner did not meet the

1712requirements of section 458.311(3)(c) because, in the BoardÓs

1720view, the section was inapplicable to Dr. Rawner because he had

1731completed all requirements of the foreign medical school, with

1740none outstanding, and did not meet the requirement of (3)(d)

1750because he had not completed an academic year of supervi sed

1761clinical training in a hospital affiliated with a medical school

1771approved by the Council on Medical Education of the American

1781Medical Association.

17833 0 . Dr. Rawner filed a Petition for Administrative Hearing

1794with respect to the Notice of Intent to Deny , and the matter was

1807reconsidered at the credentials committeeÓs meeting on October 3,

18162013 . The credentials committee voted to reconsider the

1825application based on the issues presented in the Petition.

18343 1 . On October 22, 2013, the Board issued an Amende d Notice

1848of Intent to Deny Licensure. With respect to alternative two, in

1859the Amended Notice , the Board stated:

1865[t]he ap plication file reveals that

1871Dr. Rawner fails to meet subsection (3) for

1879the reasons set forth below. Subsection (3)

1886provides:

1887Notwith standing the provisions of

1892subparagraph (1)(f)3., a graduate

1896of a foreign medical school need

1902not present the certificate issued

1907by the Educational Commission for

1912Foreign Medical Graduates or pass

1917the examination utilized by that

1922commission if the graduate :

1927(a) Has received a bachelorÓs

1932degree from an accredited United

1937States college or university.

1941(b) Has studied at a medical

1947school which is recognized by the

1953World Health Organization.

1956(c) Has completed all of the

1962formal requirements of the foreign

1967medi cal school, except the

1972internship or social science

1976requirements, and has passed part

1981I of the National Board of Medical

1988Examiners examination or the

1992Educations Commission for Foreign

1996Medical Graduates examination

1999equivalent.

2000(d) Has completed an academ ic

2006year of supervised clinical

2010training in a hospital affiliated

2015with a medical school approved by

2021the Council on Medical Education

2026of the American Medical

2030Association and upon completion

2034has passed part II of the National

2041Board of Medical Examiners

2045examin ation or the Educational

2050Commission for Foreign Medical

2054Graduates examination equivalent.

2057Subpart (3)(c) provides in relevant part all

2064of the formal requirements of the foreign

2071medical school, except the internship or

2077social service requirements, and has passed

2083certain examinations. A plain reading of

2089this subpart is that the foreign medical

2096school has an internship or social service

2103requirement and that the internship or

2109social service requirement has not been

2115completed. The application file

2119demonstrate s that Dr. Rawner graduated in

2126June, 2006, with a degree of Doctor of

2134Medicine from the American University of the

2141Caribbean School of Medicine. Thus, subpart

2147(3)(c) is inapplicable to Dr. Rawner,

2153because the application file reveals that he

2160completed all of the formal requirements of

2167the foreign medical school and there are no

2175outstanding or pending internship or social

2181service requirements.

2183Based on the foregoing, the Board finds

2190that the Applicant has not demonstrated that

2197he meets the requirements fo r licensure by

2205endorsement set forth in Section

2210458.313(1)(a), Florida Statutes.

2213The Amended Notice no longer listed failure to complete an

2223academic year of supervised clinical training as a basis for the

2234denial of Dr. RawnerÓs application.

22393 2 . There is no persuasive evidence presented that

2249RespondentÓs interpretation of the requirements of section

2256458.311, Florida Statutes , as it applies to this case , is a

2267statement of general applicability.

2271CONCLUSIONS OF LAW

22743 3 . The Division has jurisdiction over th e parties and the

2287subject matter of this proceeding pursuant to sections 120.569,

2296120.57(1), and 120.60, Florida Statutes.

230134. Dr. Rawner is applying for licensure as a medical

2311doctor in the State of Florida . As an applicant, he has the

2324burden of proving that he meets the requirements of licensure by

2335a preponderance of the evidence. DepÓt of Bank ing & Fin. v.

2347Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Espinoza v.

2359DepÓt of Bus. & ProfÓl Reg. , 739 So. 2d 1250 (Fla. 3d DCA 1999);

2373§ 120.57(1)(k), Fla. Stat.

23773 5 . Dr. Rawner is applying for licensure by endorsement

2388pursuant to section 45 8.313. This section states in pertinent

2398part:

2399(1) The department shall issue a license by

2407endorsement to any applicant who, upon

2413applying to the department on forms

2419furn ished by the department and remitting a

2427fee set by the board not to exceed $500, the

2437board certifies:

2439(a) Has met the qualifications for

2445licensure in s. 458.311(1)(b) - (g) or in

2453s. 458.311(1)(b) - (e) and (g) and (3);

2461(b) Prior to January 1, 2000, has obtained a

2470passing score, as established by rule of the

2478board, on the licensure examination of the

2485Federation of State Medical Boards of the

2492United States, Inc. (FLEX), on the United

2499States Medical Licensing Examination

2503(USMLE), or on the examination of t he

2511National Board of Medical Examiners, or on a

2519combination t hereof, and on or after

2526January 1, 2000, has obtained a passing

2533score on the United States Medical Licensing

2540Examination (USMLE); and

2543(c) Ha s submitted evidence of the active

2551licensed practice o f medicine in another

2558jurisdiction, for at least two of the

2565immediately preceding 4 years, or evidence

2571of successful completion of either a board -

2579approved postgraduate training program

2583within 2 years preceding filing of an

2590application or a board - approved c linical

2598competency examination within the year

2603preceding the filing of an application for

2610licensure. For purposes of this paragraph,

2616Ð active licensed practice of medicine Ñ means

2624that practice of medicine by physicians,

2630including those employed by any gove rnmental

2637entity in community or public health, as

2644defined by this chapter, medical directors

2650under s. 641.495(11) who are practicing

2656medicine, and those on the active teaching

2663faculty of an accredited medical school.

2669(Emphasis added.)

267136. Section 458.3 11 , referenced in section 458.313(1)(a),

2679identifies the qualifications for a person applying to become

2688licensed as a medical doctor by examination. It provides in

2698pertinent part:

2700(1) Any person desiring to be licensed as a

2709physician, who does not hold a valid license

2717in any state, shall apply to the department

2725on forms furnished by the department . The

2733department shall license each applicant who

2739the board certifies:

2742(a) Has comple ted the application form and

2750remitted a nonrefundable application fee not

2756to exceed $500.

2759(b) Is at least 21 years of age.

2767(c) Is of good moral character.

2773(d) Has not committed any act or offense in

2782this or any other jurisdiction which would

2789constitu te the basis for disciplining a

2796physician pursuant to s. 458.331 .

2802(e) For any applicant who has graduated

2809from medical school after October 1, 1992,

2816has completed the equivalent of 2 academic

2823years of preprofessional, postsecondary

2827education, as determined by rule of the

2834board, which shall include, at a minimum,

2841courses in such fields as anatomy, biology,

2848and chem istry prior to entering medical

2855school.

2856(f) Meets one of the following medical

2863education and postgraduate training

2867requirements:

28681.a. Is a graduate of an allopathic medical

2876school or allopathic college recognized and

2882approved by an accrediting agency recognized

2888by the United States Office of Edu cation or

2897is a graduate of an allopathic medical

2904school or allopathic college within a

2910territorial jurisdiction of the United

2915States recognized by the accrediting agency

2921of the governmental body of that

2927jurisdiction;

2928b. If the language of instruction of t he

2937medical school is other than English, has

2944demonstrated competency in English through

2949presentation of a satisfactory grade on the

2956Test of Spoken English of the Educational

2963Testing Service or a similar test approved

2970by rule of the board; and

2976c. Has compl eted an approved residency of

2984at least 1 year.

29882.a. Is a graduate of an allopathic foreign

2996medical school registered with the World

3002Health Organization and certified pursuant

3007to s. 458.314 as having met the standards

3015required to accredit medical schools in the

3022United States or reasonably comparable

3027standards;

3028b. If the language of instruction of the

3036foreign medic al school is other than

3043English, has demonstrated competency in

3048English through presentation of the

3053Educational Commission for Foreign Medical

3058Graduates English proficiency certificate or

3063by a satisfactory grade on the Test of

3071Spoken English of the Educati onal Testing

3078Service or a similar test approved by rule

3086of the board; and

3090c. Has completed an approved residency of

3097at least 1 year.

31013.a. Is a graduate of an allopathic foreign

3109medical school which has not been certified

3116pursuant to s. 458.314 ;

3120b. Has had his or her medical credentials

3128evaluated by the Educational Commission fo r

3135Foreign Medical Graduates, holds an active,

3141valid certificate issued by that commission,

3147and has passed the examination utilized by

3154that commission; and

3157c. Has completed an approved residency of

3164at least 1 year; however, after October 1,

31721992, the appli cant shall have completed an

3180approved residency or fellowship of at least

31872 years in one specialty area . However, to

3196be acceptable, the fellowship experience and

3202training must be counted toward regular or

3209subspecialty certification by a board

3214recognized a nd certified by the American

3221Board of Medical Specialties.

3225(g) Has submitted to the department a set

3233of fingerprints on a form and under

3240procedures specified by the department,

3245along with a payment in an amount equal to

3254the costs incurred by the Department of

3261Health for the criminal background check of

3268the applicant .

3271* * *

3274(3) Notwithstanding the provisions of

3279subparagraph (1)(f)3., a graduate of a

3285foreign medical school need not present the

3292certificate issued by the Educational

3297Commission for Foreign Medical Graduates or

3303pass the examination utilized by that

3309comm ission if the graduate :

3315(a) Has received a bachelorÓs degree from

3322an accredited United States college or

3328university.

3329(b) Has studied at a medical school which

3337is recognized by the World Health

3343Organization.

3344(c) Has completed all of the formal

3351requir ements of the foreign medical school,

3358except the internship or social service

3364requirements, and has passed part I of the

3372National Board of Medical Examiners

3377examination or the Educational Commission

3382for Foreign Medical Graduates examination

3387equivalent.

3388(d ) Has completed an academic year of

3396supervised clinical training in a hospital

3402affiliated with a medical school approved by

3409the Council on Medical Education of the

3416American Medical Association and upon

3421completion has passed part II of the

3428National Board of Medical Examiners

3433examination or the Educational Commission

3438for Foreign Medical Graduates examination

3443equivalent. (Emphasis added.)

344637. The parties have stipulated that Dr. Rawner does not

3456meet the qualifications for licensure under alternative one, i. e.,

3466the requirements identified in section 458.311(1)(b) - (g), because

3475he does not meet the postgraduate training requiremen ts in

3485subsection (f). Dr. Rawner has stated consistently that he was

3495seeking licensure under alternative two, however, which require s

3504meeting the qualifications in subsection 458.311(3) , instead of

3512those listed in subsection 458.311(1)(f).

351738. Dr. Rawner has received a bach elorÓs degree from

3527Brandeis University, an accredited United States college or

3535university. Dr. Rawner has met t he qualification specified in

3545subsection 458.311(3)(a).

354739. Dr. Rawner has studied at American University of the

3557Caribbean Medical School, a medical school recognized by the World

3567Health Organization. Dr. Rawner has met the qualification

3575specified in su bsection 458.311(3)(b).

358040. Dr. Rawner completed all of the formal requirements of

3590American University of the Caribbean Medical S chool and graduated.

3600He has also passed the appropriate examination. Therefore, he has

3610met the qualification specified in s ubsection 458.311(3)(c).

361841. Dr. Rawner has completed an academic year of supervised

3628clinical training at an appropriate hospital. He has met the

3638qualificatio n specified in subsection 458.31 1(3)(d).

364542. T he Amended Notice of Intent to D eny states that section

3658458.311(3) is inapplicable to Dr. Rawner because he graduated from

3668medical school in 2006, thus completing all of the formal

3678requirements of the medical school. This reading of the statute

3688ignores the fact that section 458.311(3) specifically spe aks in

3698terms of the graduate of a foreign medical school . The statute

3710clearly contemplates that all applicants using this avenue for

3719licensure must graduate in order to qualify.

372643. Moreover, section 458.313(1)(a) requires that applicants

3733for licensure by endorsement satisfy all Ð qualifications Ñ for

3743licensure. Ð Qualification Ñ means Ð the possession of qualities or

3754properties (such as fitness or capacity ) inherently or legally

3764necessary to make one eligible for a position or office, or to

3776perform a public duty or function. Ñ Blacks Law Dictionary (9th

3787edition). The fact that a particular applicant may exceed the

3797specific requirements identified does not nullify the fact that he

3807or she meets those requirements.

381244. The Board takes the position that the s chool must have

3824internship or social service requirements in order for a graduate

3834to be considered for licensure. S ection 458.311(3) simply does

3844not include that requirement. S ection 458.311(3)(b) requires that

3853the graduate have studied Ð at a medical sch ool which is recognized

3866by the World Health Organization. Ñ To add the requirement that

3877the school have internship and residency requirements, as

3885advocated by the Board, means adding a requirement for the medical

3896school that the Legislature has not include d . Gaudet v. Fla. Bd.

3909of ProfÓl EngÓrs , 900 So. 2d 574, 581 (Fla. 1 st DCA 2005); Indiaan

3923v. DepÓt of ProfÓl Reg., Bd. of Chiropractic , 695 So. 2d 709 (Fla.

39361 st DCA 1995) ; DepÓt of ProfÓl Reg. v. Sherman College of Straight

3949Chiropractic , 682 So. 2d 559 (Fl a. 1 st DCA 1995).

396045. In Gaudet , the Board of Professional Engineers

3968considered a licensure applicat ion from an engineer trained and

3978licensed in Pennsylvania. The Board determined that the applicant

3987was not eligible for licensure because he did not re ceive a degree

4000from a board - approved engineering program, and that because at the

4012time of his Pennsylvania licensure, Pennsylvania did not require

4021accreditation from the Board of Engineering and Technology (ABET),

4030PennsylvaniaÓ s engineering licensure requi rements were not

4038substantially the same as FloridaÓs. Section 471.015(3)(b)

4045provided that an applicant could be licensed as an engineer when

4056the applicant, in addition to other qualifications, Ð holds a valid

4067license to practice engineering issued in anoth er state or

4077territory of the United States, if the criteria for issuance of

4088the license were substantially the same as the licensure criteria

4098that existed in this state at the time the license was issued. Ñ

4111The Board of Professional Engineers adopted a rul e that

4121essentially limited Ð board approved engineering programs Ñ to those

4131accredited by ABET.

413446. The First District reversed the BoardÓs denial of

4143GaudetÓs application and stated,

4147This court is not at liberty to re - write the

4158legislative enactment by ad ding the words

4165Ð in lieu of Ñ that are simply not there . .

4177. . Therefore, this court holds that

4184section 471.013(1)(a) requires that the

4189Board promulgate rules to review schools and

4196courses of study and that the adoption of

4204rules providing for the acceptan ce of the

4212approval and accreditation of schools and

4218courses of study by a nationally accepted

4225accreditation organization does not relieve

4230the Board of the duty to adopt the required

4239rules.

4240If the Board is of the opinion that the

4249interests of the citizens of this state

4256would best be served by allowing only

4263graduates of ABET accredited schools to

4269become engineers, it can seek a legislative

4276amendment that creates such a requirement

4282. . . . However, the legislature did not

4291include such a requirement in the statute in

4299question, and therefore, the BoardÓs

4304creation of such a requirement exceeds the

4311legislatureÓs statutory delegation of

4315authority. See DepÓt of ProfÓl Regulation

4321v. Sherman Coll. of Straight Chiropractic ,

4327682 So. 2d 559, 561 (Fla. 1 st DCA 1995).

4337Gaudet , 900 So. 3d at 580 - 581.

434547. The same can be said here. Had the legislature intended

4356that graduates of foreign medical schools could only be eligible

4366if the school had internship or social services requirements, it

4376could have provided that the g raduate Ð has studied at a medical

4389school which is recognized by the World Health Organization and

4399that requires internships or social service for graduation. Ñ It

4409did not do so.

441348. The Board urges that the Ð plain meaning Ñ of subsection

4425(3)(c) is that th e foreign medical school must have requirements

4436for internships or social service . Actually , the plain meaning of

4447the provision is that an applicant need complete all of the formal

4459requirements of the school except internship and social service

4468requiremen ts. It is a limitation on the requirements of the

4479school that the applicant must meet, not an expansion of the

4490programs that the medical school must require . To say that an

4502applicant is ineligible because his or her medical school did not

4513require a program or course that he or she was not required to

4526complete for licensure is illogical at best.

453349 . The parties submitted as a Joint Exhibit the legislative

4544history related to section 458.311. While the undersigned ha s

4554reviewed all of the lengthy material submitted, nothing in the

4564legislative history sheds light on the choice of the specific

4574language actually contained in section 458.3 11(3 )(b) or (c).

458450 . The Notice of Intent to Deny also states that the second

4597alte rnative is unavailable to Petitioner because he actually has a

4608certificate from the ECFMG. S ection 458.313 gives applicants two

4618alternatives. It does not limit the applicability of the second

4628alternative to those applicants who have no ECFMG certificate.

4637Further, it must be noted that subsection 458.311 (3) is part of

4649the statute governing licensure by examination, and is cross -

4659referenced in section 458.313. The ECFMG certificate is a

4668requirement under section 458.311(1)(f)3.b. for applicants for

4675licensu re by examination , and examination applicants are not given

4685the choice of the two alternatives afforded applicants for

4694licensure by endorsement . G iven the LegislatureÓs express

4703direction in section 458.313 that an applicant for endorsement may

4713meet the re qu irements in section 458.311(1)(b ) - (g) or section

4726458.311(1)( b ) - (e), (g) and (3) , th ere is nothing in section

4740458.311 or section 458.313 to indicate that holding the ECFMG

4750certification referenced in alternative one would render an

4758applicant ineligible fo r alternative two.

476451 . Petitioner also contends that the BoardÓs interpretation

4773of section 458.311(3 ) is an unadopted rule. A rule is an Ð agency

4787statement of general applicability that implements, interprets, or

4795prescribes law or policy. Ñ § 120.52( 16), Fla. Stat. Here, th ere

4808is insufficient evidence to show that the interpretation meets the

4818definition of a rule, as there is little , if anything , to

4829demonstrate that the BoardÓs interpretation is one of general

4838applicability. Petitioner request s that bot h a recommended order

4848and a final order be issued in order to address this issue.

4860However, Dr. RawnerÓs Petition for Administrative Hearing does not

4869reference section 120.5 6( 4 ) . It makes reference only to section

4882120.57(1)(e) and alleges that the Board i s attempting to make Ð new

4895non - rule policy preventing graduates of certain foreign medical

4905schools from qualifying for licensure by endorsement, contrary to

4914section 120.57(1)(e). Ñ No agency action recommended in this

4923Recommend Order relies on an unadopted rule. Given that

4932Dr. Rawner has not filed a petition seeking relief pursuant to

4943section 120.56(4), and has not asked for the remedies provided in

4954section 120.56(4)(c) - (e), the undersigned has concluded that no

4964final order is appropriate.

4968RECOMMENDATION

4969Based on the foregoing Findings of Fact and Conclusions of

4979Law, it is RECOMMENDED that the Florida Board of Medicine enter a

4991Final Order approving Leon Rawner, M.D.Ós application for

4999licensure by endorsement.

5002DONE AND ENTERED this 28th day of April , 2014 , in

5012Tallahassee, Leon County, Florida.

5016S

5017LISA SHEARER NELSON

5020Administrative Law Judge

5023Division of Administrative Hearings

5027The DeSoto Building

50301230 Apalachee Parkway

5033Tallahassee, Florida 32399 - 3060

5038(850) 488 - 9675

5042Fax Filin g (850) 921 - 6847

5049www.doah.state.fl.us

5050Filed with the Clerk of the

5056Division of Administrative Hearings

5060this 28th day of April , 2014 .

5067COPIES FURNISHED:

5069Donna C. McNulty, Esquire

5073Office of the Attorney General

5078The Capitol, Plaza Level 01

5083Tallahassee, Flo rida 32399

5087Amy W. Schrader, Esquire

5091GrayRobinson, P.A.

5093301 South Bronough Street, Suite 600

5099Post Office Box 11189

5103Tallahassee, Florida 32302

5106Allison M. Dudley, Exec utive Dir ector

5113Board of Medicine

5116Department of Health

5119Divisi on of Medical Quality Assu rance

5126Boards/Councils/Commissions

51274052 Bald Cypress Way

5131Tallahassee, Florida 32399

5134Jennifer A. Tschetter, General Counsel

5139Department of Health

51424052 Bald Cypress Way, Bin A02

5148Tallahassee, Florida 32399

5151Edward A. Tellechea, Esquire

5155Office of the Attor ney General

5161The Capitol, Plaza Level 01

5166Tallahassee, Florida 32399

5169NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5175All parties have the right to submit written exceptions within

518515 days from the date of this Recommended Order. Any exceptions

5196to this Recommended Order should be filed with the agency that

5207will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/19/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 06/18/2014
Proceedings: Agency Final Order
PDF:
Date: 04/28/2014
Proceedings: Recommended Order
PDF:
Date: 04/28/2014
Proceedings: Recommended Order. CASE CLOSED.
PDF:
Date: 04/28/2014
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/17/2014
Proceedings: Joint Exhibits 2 and 6 (not available for viewing) filed.
PDF:
Date: 02/17/2014
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 02/17/2014
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 02/17/2014
Proceedings: Notice of Filing Joint Exhibits 2 and 6 filed.
PDF:
Date: 02/17/2014
Proceedings: Joint Exhibits 1,3, 4 and 5 (not available for viewing) filed.
PDF:
Date: 02/10/2014
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 01/22/2014
Proceedings: Order Canceling Hearing and Setting Schedule (parties to advise status by February 10, 2014).
PDF:
Date: 01/21/2014
Proceedings: Joint Motion to Cancel Hearing and Set Date to File Proposed Recommended Orders or in the Alternative Continue the Hearing filed.
PDF:
Date: 01/21/2014
Proceedings: Respondent's Responses to Petitioner's First Request for Admissions filed.
PDF:
Date: 01/17/2014
Proceedings: Petitioner's Notice of Serving Responses Respondent's First Set of Interrogatories filed.
PDF:
Date: 01/17/2014
Proceedings: Petitioner's Response to Respondent's First Request for Admissions filed.
PDF:
Date: 01/16/2014
Proceedings: Respondent's Motion for Official Recognition filed.
PDF:
Date: 01/15/2014
Proceedings: Notice of Serving Respondent's Answers to Request for Production of Documents filed.
PDF:
Date: 01/15/2014
Proceedings: Notice of Serving Respondent's Answers to Interrogatories filed.
PDF:
Date: 01/15/2014
Proceedings: Notice of Serving Respondent's Answers to Request for Admissions filed.
PDF:
Date: 12/16/2013
Proceedings: Petitioner's Notice of Serving First Set of Interrogatories to Respondent filed.
PDF:
Date: 12/16/2013
Proceedings: Petitioner's First Request for Production to Respondent filed.
PDF:
Date: 12/16/2013
Proceedings: Petitioner's First Request for Admissions to Respondent filed.
PDF:
Date: 12/13/2013
Proceedings: Notice of Serving Respondent's Request for Admissions to Petitioner filed.
PDF:
Date: 12/13/2013
Proceedings: Notice of Serving Respondent's First Set of Interrogatories to Petitioner filed.
PDF:
Date: 12/04/2013
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 12/04/2013
Proceedings: Notice of Hearing (hearing set for January 27, 2014; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 12/04/2013
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 11/27/2013
Proceedings: Initial Order.
PDF:
Date: 11/27/2013
Proceedings: Notice of Intent to Deny Licensure filed.
PDF:
Date: 11/27/2013
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 11/27/2013
Proceedings: Amended Notice of Intent to Deny Licensure filed.
PDF:
Date: 11/27/2013
Proceedings: Referral for Hearing filed.

Case Information

Judge:
LISA SHEARER NELSON
Date Filed:
11/27/2013
Date Assignment:
11/27/2013
Last Docket Entry:
06/19/2014
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (14):