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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEON RAWNER, M.D.,

Petitioner,

vs. Case No. 13 - 4651

BOARD OF MEDICINE,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case is before Administrative Law Jud ge Lisa Shearer

Nelson of the Division of Administrative Hearings pursuant to the

partiesÓ Joint Motion to Cancel Hearing and Set Date to File

Proposed Recommended Orders. Consistent with the joint motion of

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

stipulated record.

APPEARANCES

For Petitioner: Amy W. Schrader, Esquire

GrayRobinson, P.A.

301 South Bronough Street

Post Office Box 11189

Tallahassee, Florida 32302

For Respondent: Donna C. McNulty, Esquire

Mich ael T. Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level One

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issue s to be determined are whether Petitioner meets the

requirements for licensure by endorsement pursuant to section

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

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

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

Statutes (2013) .

PRELIMINARY STATEMENT

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

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

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

the BoardÓs determination that Dr. Rawner failed to meet the

requirements for licensure. Petitioner filed a Petition for

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

2013, the case was referred to the Division of Administrative

Hearings for the assignment of an administrative law judge.

The case was originally noticed for hearing to commence on

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

Motion to Cancel Hearing and Set Date to File Proposed

Recommended Orders or in the Alternative to Continue Hearing. In

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

disputed issues of material fact, and requested that the parties

be permitted to submit proposed recommended orders or motions as

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

motion was denied, the parties requested that the hearing be

continued.

The hearing was canceled by Order Canceling Hearing and

Setting Schedule entered on January 22, 2014 . Consistent with

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

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

February 10, and proposed recommended orders no later than

February 17, 2014. The Joint Stipulation and the Proposed

Recommended Orders were timely filed and have been carefully

considered in the preparation of this Recommended Ord er and the

stipulated facts, where relevant, have been included in the

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

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

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

Motion for Official Recognition filed January 16, 2014. Given

the partiesÓ designation of the se same materials as Joint Exhibit

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

FINDING S OF FACT

Based upon the stipulations of the parties and the

documentary evidence presented , the following facts are found:

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

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

as a medical doctor by endorsement in Florida.

2. 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) (al ternative one) or section 458.31 1 (1) (b) - (e),

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

3 . 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.

4 . PetitionerÓs 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

imm ediately preceding the application.

5 . 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 ha s not committed any act or

offense in any jurisdiction which would constitute the basis for

disciplining a physician pursuant to section 458.331.

6 . 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.

7 . Petitioner received a bachelorÓs degree from Brandeis

University, an accredited United States university.

8 . Petitioner has passed the appropriate medical licensure

examinations, the U nited States Medical Licensing E xamination,

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

9 . Petitioner holds an active, valid certificate issued by

the Educational Commission for Foreign Medical Graduates (ECFMG)

and has passed the examination used by the C ommission.

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

of Medicine from American University of the Caribbean School of

Medicine.

1 1 . Petitioner graduated from an allopathic fore ign medical

school (American University of the Caribbean School of Medicine)

which is recognized by the World Health Organization.

1 2 . Petitioner completed all of the formal requ irements for

graduation from American University of the Caribbean School of

M edicine.

1 3 . PetitionerÓs 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).

1 4 . Petitioner did not graduate from an allopathic medica l

school or allopathic college recognized and approved by an

accrediting agency recognized by the United States Office of

Education.

1 5 . 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.

1 6 . Petitioner is not a graduate of an allopathic foreign

medical school registered with the World Health Organization and

certified pursuant to secti on 458.314, Florida Statutes, as

having met the standards required to accredit medical schools in

the United States or reasonably comparable standards.

1 7 . Petitioner has not completed an approved residency or

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

1 8 . PetitionerÓs application for licensure demonstrates

that he does not meet the postgraduate training r equirements

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

19 . Petitioner completed one year of residency training in

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

Center, Queens, New York.

2 0 . Besides the residency training program at Mt. Sinai Î

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

completed any other residency or fellowship training.

2 1 . Petitioner does not have t wo 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.

2 2 . 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.

2 3 . Dr. Rawner submitted his application for licensure by

endorsement on March 13, 2013.

2 4 . 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).

2 5 . 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 y ear of

supervised medical training.

2 6 . Other information requested in the April 3, 2013,

letter was sent directly to the Board office by the appropriate

age ncies, including an official United States medical examination

transcript, indicating that Dr. Raw ner 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 sta te of Wisconsin; an

American Medical Association (AMA) profile letter; an d

Dr. RawnerÓs fingerprints and clear background check.

2 7 . Program Operations Administrator Chandra Prine notified

Dr. Rawner by l etter 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.

2 8 . Dr. Rawner appeared before the credentials committee of

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

recommended that his license be denied.

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

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

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

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

to meet the quali fications 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 BoardÓs

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 supervi sed

clinical training in a hospital affiliated with a medical school

approved by the Council on Medical Education of the American

Medical Association.

3 0 . 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 committeeÓs meeting on October 3,

2013 . The credentials committee voted to reconsider the

application based on the issues presented in the Petition.

3 1 . On October 22, 2013, the Board issued an Amende d Notice

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

the Amended Notice , the Board stated:

[t]he ap plication file reveals that

Dr. Rawner fails to meet subsection (3) for

the reasons set forth below. Subsection (3)

provides:

Notwith standing 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 :

(a) Has received a bachelorÓs

degree from an accredited United

States college or university.

(b) Has studied at a medical

school which is recognized by the

World Health Organization.

(c) Has completed all of the

formal requirements of the foreign

medi cal 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.

(d) Has completed an academ ic

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

examin ation 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

demonstrate s 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 fo r 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. RawnerÓs application.

3 2 . There is no persuasive evidence presented that

RespondentÓs interpretation of the requirements of section

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

statement of general applicability.

CONCLUSIONS OF LAW

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

subject matter of this proceeding pursuant to sections 120.569,

120.57(1), and 120.60, Florida Statutes.

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

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

burden of proving that he meets the requirements of licensure by

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

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

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

§ 120.57(1)(k), Fla. Stat.

3 5 . Dr. Rawner is applying for licensure by endorsement

pursuant to section 45 8.313. This section states in pertinent

part:

(1) The department shall issue a license by

endorsement to any applicant who, upon

applying to the department on forms

furn ished by the department and remitting a

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

board certifies:

(a) Has met the qualifications for

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

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

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

passing score, as established by rule of the

board, on the licensure examination of the

Federation of State Medical Boards of the

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

States Medical Licensing Examination

(USMLE), or on the examination of t he

National Board of Medical Examiners, or on a

combination t hereof, and on or after

January 1, 2000, has obtained a passing

score on the United States Medical Licensing

Examination (USMLE); and

(c) Ha s submitted evidence of the active

licensed practice o f medicine in another

jurisdiction, for at least two of the

immediately preceding 4 years, or evidence

of successful completion of either a board -

approved postgraduate training program

within 2 years preceding filing of an

application or a board - approved c linical

competency examination within the year

preceding the filing of an application for

licensure. For purposes of this paragraph,

Ð active licensed practice of medicine Ñ means

that practice of medicine by physicians,

including those employed by any gove rnmental

entity in community or public health, as

defined by this chapter, medical directors

under s. 641.495(11) who are practicing

medicine, and those on the active teaching

faculty of an accredited medical school.

(Emphasis added.)

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

identifies the qualifications for a person applying to become

licensed as a medical doctor by examination. It provides in

pertinent part:

(1) Any person desiring to be licensed as a

physician, who does not hold a valid license

in any state, shall apply to the department

on forms furnished by the department . The

department shall license each applicant who

the board certifies:

(a) Has comple ted the application form and

remitted a nonrefundable application fee not

to exceed $500.

(b) Is at least 21 years of age.

(c) Is of good moral character.

(d) Has not committed any act or offense in

this or any other jurisdiction which would

constitu te the basis for disciplining a

physician pursuant to s. 458.331 .

(e) For any applicant who has graduated

from medical school after October 1, 1992,

has completed the equivalent of 2 academic

years of preprofessional, postsecondary

education, as determined by rule of the

board, which shall include, at a minimum,

courses in such fields as anatomy, biology,

and chem istry prior to entering medical

school.

(f) Meets one of the following medical

education and postgraduate training

requirements:

1.a. Is a graduate of an allopathic medical

school or allopathic college recognized and

approved by an accrediting agency recognized

by the United States Office of Edu cation or

is a graduate of 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;

b. If the language of instruction of t he

medical school is other than English, has

demonstrated competency in English through

presentation of a satisfactory grade on the

Test of Spoken English of the Educational

Testing Service or a similar test approved

by rule of the board; and

c. Has compl eted an approved residency of

at least 1 year.

2.a. Is a graduate of an allopathic foreign

medical school registered with the World

Health Organization and certified pursuant

to s. 458.314 as having met the standards

required to accredit medical schools in the

United States or reasonably comparable

standards;

b. If the language of instruction of the

foreign medic al school is other than

English, has demonstrated competency in

English through presentation of the

Educational Commission for Foreign Medical

Graduates English proficiency certificate or

by a satisfactory grade on the Test of

Spoken English of the Educati onal Testing

Service or a similar test approved by rule

of the board; and

c. Has completed an approved residency of

at least 1 year.

3.a. Is a graduate of an allopathic foreign

medical school which has not been certified

pursuant to s. 458.314 ;

b. Has had his or her medical credentials

evaluated by the Educational Commission fo r

Foreign Medical Graduates, holds an active,

valid certificate issued by that commission,

and has passed the examination utilized by

that commission; and

c. Has completed an approved residency of

at least 1 year; however, after October 1,

1992, the appli cant shall have completed an

approved residency or fellowship of at least

2 years in one specialty area . However, to

be acceptable, the fellowship experience and

training must be counted toward regular or

subspecialty certification by a board

recognized a nd certified by the American

Board of Medical Specialties.

(g) Has submitted to the department a set

of fingerprints on a form and under

procedures specified by the department,

along with a payment in an amount equal to

the costs incurred by the Department of

Health for the criminal background check of

the applicant .

* * *

(3) 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

comm ission if the graduate :

(a) Has received a bachelorÓs degree from

an accredited United States college or

university.

(b) Has studied at a medical school which

is recognized by the World Health

Organization.

(c) Has completed all of the formal

requir ements of the foreign medical school,

except the internship or social service

requirements, and has passed part I of the

National Board of Medical Examiners

examination or the Educational Commission

for Foreign Medical Graduates examination

equivalent.

(d ) 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. (Emphasis added.)

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

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

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

he does not meet the postgraduate training requiremen ts in

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

seeking licensure under alternative two, however, which require s

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

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

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

Brandeis University, an accredited United States college or

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

subsection 458.311(3)(a).

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

Caribbean Medical School, a medical school recognized by the World

Health Organization. Dr. Rawner has met the qualification

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

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

American University of the Caribbean Medical S chool and graduated.

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

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

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

clinical training at an appropriate hospital. He has met the

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

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

458.311(3) is inapplicable to Dr. Rawner because he graduated from

medical school in 2006, thus completing all of the formal

requirements of the medical school. This reading of the statute

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

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

clearly contemplates that all applicants using this avenue for

licensure must graduate in order to qualify.

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

for licensure by endorsement satisfy all Ð qualifications Ñ for

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

properties (such as fitness or capacity ) inherently or legally

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

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

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

specific requirements identified does not nullify the fact that he

or she meets those requirements.

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

internship or social service requirements in order for a graduate

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

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

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

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

the school have internship and residency requirements, as

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

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

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

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

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

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

45. In Gaudet , the Board of Professional Engineers

considered a licensure applicat ion from an engineer trained and

licensed in Pennsylvania. The Board determined that the applicant

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

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

time of his Pennsylvania licensure, Pennsylvania did not require

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

PennsylvaniaÓ s engineering licensure requi rements were not

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

provided that an applicant could be licensed as an engineer when

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

license to practice engineering issued in anoth er state or

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

the license were substantially the same as the licensure criteria

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

The Board of Professional Engineers adopted a rul e that

essentially limited Ð board approved engineering programs Ñ to those

accredited by ABET.

46. The First District reversed the BoardÓs denial of

GaudetÓs application and stated,

This court is not at liberty to re - write the

legislative enactment by ad ding the words

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

. . Therefore, this court holds that

section 471.013(1)(a) requires that the

Board promulgate rules to review schools and

courses of study and that the adoption of

rules providing for the acceptan ce of the

approval and accreditation of schools and

courses of study by a nationally accepted

accreditation organization does not relieve

the Board of the duty to adopt the required

rules.

If the Board is of the opinion that the

interests of the citizens of this state

would best be served by allowing only

graduates of ABET accredited schools to

become engineers, it can seek a legislative

amendment that creates such a requirement

. . . . However, the legislature did not

include such a requirement in the statute in

question, and therefore, the BoardÓs

creation of such a requirement exceeds the

legislatureÓs statutory delegation of

authority. See DepÓt of ProfÓl Regulation

v. Sherman Coll. of Straight Chiropractic ,

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

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

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

that graduates of foreign medical schools could only be eligible

if the school had internship or social services requirements, it

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

school which is recognized by the World Health Organization and

that requires internships or social service for graduation. Ñ It

did not do so.

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

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

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

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

requirements of the school except internship and social service

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

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

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

applicant is ineligible because his or her medical school did not

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

complete for licensure is illogical at best.

49 . The parties submitted as a Joint Exhibit the legislative

history related to section 458.311. While the undersigned ha s

reviewed all of the lengthy material submitted, nothing in the

legislative history sheds light on the choice of the specific

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

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

alte rnative is unavailable to Petitioner because he actually has a

certificate from the ECFMG. S ection 458.313 gives applicants two

alternatives. It does not limit the applicability of the second

alternative to those applicants who have no ECFMG certificate.

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

the statute governing licensure by examination, and is cross -

referenced in section 458.313. The ECFMG certificate is a

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

licensu re by examination , and examination applicants are not given

the choice of the two alternatives afforded applicants for

licensure by endorsement . G iven the LegislatureÓs express

direction in section 458.313 that an applicant for endorsement may

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

458.311(1)( b ) - (e), (g) and (3) , th ere is nothing in section

458.311 or section 458.313 to indicate that holding the ECFMG

certification referenced in alternative one would render an

applicant ineligible fo r alternative two.

51 . Petitioner also contends that the BoardÓs interpretation

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

statement of general applicability that implements, interprets, or

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

is insufficient evidence to show that the interpretation meets the

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

demonstrate that the BoardÓs interpretation is one of general

applicability. Petitioner request s that bot h a recommended order

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

However, Dr. RawnerÓs Petition for Administrative Hearing does not

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

120.57(1)(e) and alleges that the Board i s attempting to make Ð new

non - rule policy preventing graduates of certain foreign medical

schools from qualifying for licensure by endorsement, contrary to

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

Recommend Order relies on an unadopted rule. Given that

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

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

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

final order is appropriate.

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.Ós 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 Filin g (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, Flo rida 32399

Amy W. Schrader, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302

Allison M. Dudley, Exec utive Dir ector

Board of Medicine

Department of Health

Divisi on of Medical Quality Assu rance

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 Attor ney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

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.