13-004651
Leon Rawner, M.D. vs.
Board Of Medicine
Status: Closed
Recommended Order on Monday, April 28, 2014.
Recommended Order on Monday, April 28, 2014.
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.
- Date
- Proceedings
- PDF:
- Date: 04/28/2014
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- 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: 01/15/2014
- 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 Request for Admissions filed.
- PDF:
- Date: 12/16/2013
- Proceedings: Petitioner's Notice of Serving First Set of Interrogatories to Respondent filed.
- PDF:
- Date: 12/13/2013
- 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.
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
-
Michael Todd Flury, Esquire
Address of Record -
Donna C. McNulty, Esquire
Address of Record -
Amy W. Schrader, Esquire
Address of Record -
Amy W Schrader, Esquire
Address of Record