Florida’s Administrative Procedure Act
is intended to assure administrative fairness and a level playing
field in the resolution of disputes with the state’s regulatory
agencies.
The Act encourages meaningful advance disclosure
of agency procedures and requirements. In the area of professional
licensure this is accomplished through rule making and specific
notice requirements. Unfortunately, the practical operations
of the Board of Medicine’s Credentials Committee are not
very well defined by administrative rule or statute. Consequently,
the risk to the unprepared applicant can be significant.
The physician applicant is frequently invited
to appear before the Credentials Committee in response to specific
licensure inquiries or issues raised by the committee. The applicant’s
“testimony” is received under oath, recorded and
can and frequently is used against him in the determination
of licensure issues.
The Board of Medicine is represented by its
own legal counsel. The proceedings, unlike a probable cause
panel, are open to the public, and depending upon the length
and nature of the agenda, there can be a considerable audience.
After being
chastised by at least one appellate court, the Committee now
makes a more sincere effort to provide applicants with a reasonable
notice of the issues to be addressed at the hearing. Historically,
unnoticed issues have "spontaneously" developed during
the hearing process which can place licensure applicants in
the untenable position of responding to them without adequate
preparation.
An applicant’s
attempt to assume the dual roles of “witness” and
“advocate” can easily result in the needless compromise
of both. Protestations over a lack of adequate notice can be
misinterpreted as evasiveness or procrastination and the “boundaries”
between the licensee and the committee can be almost non-existent
in this setting. The ambiance of a Credentials Committee hearing
can range from friendly, casual and informative to prosecutorial.
A practical
aspect of Credentials Committee action is that once the committee
makes a recommendation with respect to licensure, the actual
review of that recommendation by the full board may be limited.
The Board of Medicine has on occasion refused to consider additional
testimony or input in its review of the committee’s recommendations
even in instances when the information offered did not exist
at the time of the Credentials Committee’s decision.
In some
instances, the Board’s review of the Credentials Committee’s
recommendations can transpire in a matter of two or three minutes
and accordingly the possibility of “rubber stamp approval”
of the committee’s recommendations cannot be lightly dismissed.
Unlike participants on a Probable Cause Panel, Credential Committee
members can and do vote on the same recommendation as members
of the full Board. Accordingly, it can not be presumed that
a licensee will automatically have a full second bite at the
apple before the full Board in the event of a less than favorable
Credentials Committee recommendation. There can be considerable
inertia to overcome in such instances.
Although every case is unique, Credentials Committee
proceedings can be a critical stage in the licensure process.
Appropriate preparation and vigilant participation during committee
proceedings by the licensee and /or his counsel are essential.
