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07/06/90 MARGARET A. ROBERTS v. DISTRICT COLUMBIA

July 6, 1990

MARGARET A. ROBERTS, PETITIONER
v.
DISTRICT OF COLUMBIA BOARD OF MEDICINE, RESPONDENT



Petition for Review of a Decision of the District of Columbia Board of Medicine

Terry, Schwelb, and Farrell, Associate Judges. Opinion for the court by Associate Judge Farrell. Opinion Concurring in part and Dissenting in part by Associate Judge Schwelb.

The opinion of the court was delivered by: Farrell

Dr. Margaret A. Roberts, a psychiatrist at Saint Elizabeths Hospital in Washington, D.C., petitions for review of an order of the District of Columbia Board of Medicine (the Board) denying her application for a license to practice medicine in the District of Columbia under statutory provisions for endorsement and reciprocity. *fn1 Dr. Roberts' application, submitted to the Board on November 15, 1987, was based upon her license to practice medicine in the state of Michigan. The Board concluded, however, that the requirements for licensure in Michigan at the time Dr. Roberts sat for the state's qualifying examination (December 1970) were not "substantially equivalent" to current standards in the District of Columbia. D.C. Code § 2-3305.7 (1988). Although Michigan gave the same exam as that now required by the District, the Federation Licensing Examination (FLEX), *fn2 and required a passing score of 75% as does the District, it adjusted upwards the scores of some applicants, like Dr. Roberts' who sat for the exam in 1970. *fn3 Dr. Roberts' actual score, as certified by the Federation of State Medical Boards (the Federation), was 73.3 but was adjusted to 75 by the Michigan examiners. Since the Board requires that all applicants receive a Federation-certified score of 75, Dr. Roberts' applications for a license by endorsement and reciprocity were denied.

In this court, Dr. Roberts contends first that the Board's reliance only upon her FLEX results and refusal to consider her eighteen years of experience in the practice of psychiatry unconstitutionally denied her the right to continue in her chosen profession. She maintains that, as an experienced practitioner, she was entitled to a more searching inquiry into her qualifications including her post-FLEX experience in psychiatry. She further argues that by requiring out-of-state applicants to have scored at least a Federation-certified 75 on the FLEX (required of District examinees), the Board arbitrarily substituted "strict equivalence" for the statutory requirement of "substantial equivalence" governing licensure by endorsement and reciprocity. Finally, Dr. Roberts contends that, when examined in light of the Board's contemporaneous treatment of at least one other identified applicant for licensure from a state which did not require the FLEX, the rejection of her application was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." D.C. Code § 1-1510 (3)(A) (1987). That applicant, Dr. Emma Dacquel, also a psychiatrist at Saint Elizabeths, was granteda license to practice in the District of Columbia on the basis of her license from the state of Florida. As far as we can tell from the record, the Board accepted Dr. Dacquel's license at face value without conducting any inquiry into the comparability of Florida's examination procedure with the District's. Dr. Roberts argues that the Board acted arbitrarily by requiring strict equivalency in the case of FLEX states yet accepting without question the license granted by non-FLEX states such as Florida at the time it admitted Dr. Dacquel.

The Board responds that it was neither constitutionally required nor statutorily permitted to take Dr. Roberts' current qualifications (her accumulated experience) into account when considering her application for a license in the District. It further argues that it could reasonably require all new applicants from jurisdictions administering the FLEX to have scored the same minimum grade of 75 required on the District's exam, and was not bound to accept Michigan's appraisal of Dr. Roberts' qualifications (boosting her FLEX grade on the basis of other considerations) over the objective, uniform indicator of competence provided by FLEX. As to D. Dacquel, the Board points out that in non-FLEX jurisdictions this objective measure of competence is lacking, and so it can reasonably treat the fact of licensure by those states differently in considering applications for endorsement and reciprocity.

After setting forth the relevant background, we analyze these contentions in order. We conclude that concerns of basic evenhanded treatment require a remand to the Board for further explanation of how, at the time of Dr. Roberts' application, it treated applications for a license by endorsement, reciprocity or waiver by persons from non-FLEX states.

I.

Dr. Roberts has been practicing psychiatry since 1971. She received her medical education in India and was certified to practice medicine and surgery in that country. In 1965, she came to the United States and, after passing an examination for graduates of foreign medical schools, received an internship at Miriam Hospital in Providence, Rhode Island. In January of 1966 she accepted a residency in psychiatry at the University of Michigan Hospital and, after completing this residency in 1970, sat for exams in Michigan that consisted of a basic science exam *fn4 and the FLEX. The passing grade for eachexam was 75. In 1971 Dr. Roberts was informed by the Michigan State Board of Registration in Medicine that she had received a weighted FLEX average of 75 and was given a license to practice medicine.

Between 1971 and 1983 Dr. Roberts worked in Michigan as a psychiatrist and hospital administrator at Northville State Hospital and Providence Hospital. At Northville she began as a staff psychiatrist and was later promoted to assistant director of psychiatric education and training. In 1976 she accepted a position at Providence Hospital as medical director of the out-patient clinic and day treatment center. In 1973 she took and passed specialty examinations administered by the American Board of Psychiatry and Neurology. She later became a diplomate of that board and served as one of its examiners. In 1977 she sat for the Canadian specialty exam and was certified as a specialist in psychiatry by the Royal College of Physicians and Surgeons of Canada.

From 1984 to the present she has worked full-time at Saint Elizabeths Hospital in Washington, D.C. She began as a psychiatrist in the out-patient department and was later named Acting Medical Director in the Division of Community Living. Until October 1, 1987, the Hospital was run by the federal government, and the doctors working at the facility were exempt from the District's licensure requirements while performing the duties of their employment. See D.C. Code § 2-3305.2 (2) (1988). On October 1, 1987, jurisdiction over the Hospital was transferred to the District of Columbia Commission on Mental Health Services, and physicians were required to meet all local licensure requirements. See Saint Elizabeths Hospital and District of Columbia Mental Health Services Act, Pub. L. 98-621, 98 Stat. 3369 (1984), D.C. Code §§ 32-621 to -628 (1988). *fn6

Licensure for health related occupations in the District is governed by the "District of Columbia Health Occupations Revision Act of 1985" (the Act). D.C. Code §§ 2-3301.1 to -3312.1 (1988). To be licensed, an applicant must, among other requirements, pass "an examination administered by the board or recognized by the Mayor." Section 3305.3 (a)(4). *fn7 A Board, however, may waive the examination requirements, in its discretion,

for any applicant who otherwise qualifies for licensure and who is currently licensed or certified under the laws of a state or territory of the United States with standards which, in the opinion of the board, were substantially equivalent at the date of the licensure or certification to the requirements of this chapter . . . .

Section 2-3305.6 (e)(1). Similarly, a Board, in its discretion, may issue a license by "reciprocity" or "endorsement" to an applicant "ho is licensed or certified and in good standing under the laws of another state with requirements which, in the opinion of the board, were substantially equivalent at the time of licensure to the requirements of this chapter . . . ." Section 2-3305.7 (1). *fn8

On November 15, 1987, Dr. Roberts submitted her application for license by endorsement on the basis of her Michigan license On March 15, 1988, the Board issued a notice of intent to deny her application on the ground that she had "failed to establish [that she was] professionally qualified to be issued a license by endorsement pursuant to D.C. Code § 2-3305.7 (1)." The Board concluded that since Dr. Roberts had been licensed in Michigan on the basis of a 73.30 FLEX score as reported by the Federation, *fn9 and since the District of Columbia requires a passing score of 75, the "State of Michigan's licensure requirements were not, at the time of [Dr. Roberts'] licensure, substantially equivalent to those now in effect in the District . . . ." *fn10 Dr. Roberts then requested a hearing and, on May 23, submitted an application for a license by reciprocity. *fn1 At the hearing, held on June 1, 1988, she presented evidence of both her education and experience in the practice of psychiatry. The Board made clear, however, that in ruling on her application for licensure by endorsement, it could not consider her presentqualifications but only the conditions under which she was originally licensed in Michigan and whether the conditions were substantially equivalent to those imposed by the District. As part of the government's case, the Corporation Counsel introduced the instructions accompanying each application for licensure. The instructions state that in addition to meeting all general requirements, applicants for licensure by endorsement of their FLEX scores "must have received a certified score of at least 75 on the FLEX at a single sitting." The Corporation Counsel introduced a letter dated May 26, 1988, from Marcia Malouin of the Michigan Department of Licensing and Regulation confirming that Dr. Roberts' score had been 75 only after adjustment. Ms. Malouin stated:

he Michigan Board of Medical Examiners, the predecessor board to the Michigan Board of Medicine, adjusted the scores of the candidates who sat for the first and second administrations of the FLEX ...


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