In the Matter of the Complaint Against BORINQUEN UNIVERSITY Post Office Box S-4068 at Old San Juan, Puerto Rico 00905 and BORINQUEN UNIVERSITY at Old San Juan, Puerto Rico 00904 This address added to Complaint by amendment prior to the hearing. P.S. Docket No. 6/14 09/26/77 Duvall, William A. Chief Administrative Law Judge Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C. 20260 Frank Carbo, Esq. DeDiego 309 (P.D.A.) 22, Santurce, Puerto Rico 00912 Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated on June 2, 1977, when the Office of Consumer Protection, Law Department, U. S. Postal Service, the Complainant, filed a complaint in which it charged that Borinquen University at various addresses in San Juan, Puerto Rico, is engaged in conducting a scheme for obtaining money or property through the mails by means of false representations in violation of 39 U. S. Code 3005.
The specific representations alleged by Complainant as being falsely made by the Respondent are as follows, from Paragraph 3 of the Complaint:
"(a) BORINQUEN UNIVERSITY has the physical facilities, faculty, finances, staff and curriculum necessary for the operation of a bona fide Medical School;
"(b) BORINQUEN UNIVERSITY has, or will have, a bona fide Medical School in operation offering a four-year American Medical Studies program with classes commencing in September 1977;
"(c) The BORINQUEN UNIVERSITY Medical School is currently approved by the Department of Public Instruction of the Commonwealth of Puerto Rico;
"(d) BORINQUEN UNIVERSITY Medical School will be operating with a provisional accreditation of the Council of Higher Education in Puerto Rico; and
"(e) BORINQUEN UNIVERSITY Medical School has applied for accreditation and expects to receive a 'letter of reasonable assurance' (viz., a kind of provisional accreditation) during its first academic year from the Liaison Committee on Medical Education of the Association of American Medical Colleges and the American Medical Association."
On July 11, 1977, and within extensions of time granted for that purpose, the Respondent filed its answer to the Complaint in which it (1) admits doing business in Puerto Rico for years as a teaching institution, but denies that it is engaged in conducting a scheme for obtaining money through the mail by means of false representations in violation of 39 U. S. Code 3005 or any other Federal, State, or local statute; (2) denies that any advertisement or direct mail promotional materials are used to attract, induce, or in any other unwarranted method have money or property remitted through the mail; (3) denies that exhibits submitted with the Complaint are used for the purposes alleged in the Complaint or that other such material as well as oral interviews with prospective students are so used; and (4) denies making the representations alleged in Paragraph 3 and its Subparagraphs of the Complaint, or those that are implied in all of the Complaint, including Paragraph 4 thereof.
As affirmative defenses, Respondent alleges: (1) The Liaison Committee, the Complainant, or both of them, are attempting to discredit the school, prevent its interviewing further applicants, and prevent its opening a medical school as planned; (2) the Order obtained to detain all mail addressed to Respondent and other mail addressed to other persons and entities at various addresses is a violation of the civil rights of persons and entities not a part of Respondent; and (3) failure of Respondent to prevail in this procedure could result in the inability of the school to start functioning as planned and could very well lead people to think that the allegations in the Complaint are true.
Some advertising material used by the Respondent was attached to the Complaint as Exhibit 1 thereto, consisting of an advertisement appearing in the New York Times of April 17, 1977. Exhibit 2 to the Complaint consists of a thirteen-page piece of direct mail promotional material, not all of which pages are mailed at the same time. Exhibit 3 to the Complaint is an excerpt from the Wall Street Journal of June 10, 1977, on which appears an advertisement of Borinquen University. These items are attached hereto as Appendices A, B and C to this decision.
The hearing in this proceeding was held on July 19 and 20, 1977, in San Juan, Puerto Rico, and on August 22, 1977, in New York City. On the first day of the hearing, the depositions of the following individuals, whose depositions will be summarized, were received into the record. (Tr. 8, 13, 14).
1. James Roy Schofield, M.D. Dr. Schofield's educational training, experience, military service, national professional assignments, bibliography, and the like are outlined in his curriculum vitae which is Exhibit 1 to his testimony. Presently, he is the Director of the Division of Accreditation of the Association of American Medical Colleges, and during the 1976-1977 academic year he served as the Secretary of the Liaison Committee on Medical Education, acting in behalf of the Association of the American Medical Colleges, and during the 1976-1977 academic year he served as the Secretary of the Liaison Committee on Medical Education, acting in behalf of the Association of the American Medical Colleges and the American Medical Association. 2/
2/
Hereafter in this decision, the Liaison Committee on Medical
Education will be referred to sometimes as the Liaison Committee,
the Committee, LCME or LC.
Historically, for a period of about one hundred years, medical
schools sought some kind of peer recognition and this was obtained
from the Association of American Medical Colleges and from the
Council of Medical Education of the American Medical Association.
In 1942 the accreditation functions of these two organizations were
merged into the Liaison Committee. Graduation from a medical
school accredited by the Liaison Committee automatically renders
the graduate eligible to take an examination for licensing in any
State, Commonwealth, or Territory of the United States. Each State
or Territory has its own medical licensure laws, but graduation
with the M.D. degree from a medical school accredited by the
Liaison Committee is a prerequisite for direct licensure to
practice medicine in the United States. (Schofield deposition,
page 25)
The United States Office of Education, under the Commissioner
of Education, maintains a system of recognition of all institutions
of higher learning in the United States. This system includes
institutions for instruction in medicine, law, and other
professions. The supervision of the activity and the accreditation
of medical schools is under the Liaison Committee, and this
Committee is the nationally recognized accrediting agency for
medical schools. (Schofield deposition, page 57)
On or about May 2, 1977, Dr. Schofield accompanied by Dr. Perry
Culver, M.D., of Harvard University, Dr. John Kemph, M.D., Dean of
the Medical College of Ohio and a member of the Liaison Committee,
Dr. Stanley W. Olsen, M.D., the Provost of the Northeastern Ohio
School of Medicine, Dr. Carlos Valvon, M.D., Professor and
Chairman, Department of Community Medicine, Baylor
College of Medicine, Houston, and C. R. Morris, M.D., Director of
Pediatric Nephrology at the University of North Carolina School of
Medicine, made a consultative visit to Borinquen University. They
met Borinquen President, George Haggerty, Dr. Jose Muriente, a
graduate in Dentistry, who is the Dean of Borinquen, Mr. John
Haggerty, Vice-President, and Mr. Frank Carbo, 3/ Respondent's
Counsel, and a young lady who was a secretary of Borinquen
University.
3/ Although Mr. Carbo is noted herein as being
present at many meetings, interviews, conferences and the like, he
insists that he has no proprietary interest in Respondent, but that
his function is solely that of legal counsel to Respondent, its
officers and staff.
On asking about quarters for the Medical School, the Committee
was told that a building to be used for that purpose was being
acquired. That such a building could be acquired and furnished in
time to permit students to be enrolled by September, 1977, was
doubted by the consultative committee. The representatives of
Borinquen University then told the committee that a library was not
necessary for first-year medical students. The witness, Dr.
Schofield, observed that this was a remarkable departure from the
usual planning of a medical school. (Schofield deposition, page
13)
In short, the information about such matters as faculty,
clinical and hospital affiliation and availability, and finances
was to the effect that little or nothing had been accomplished in
any of those fields, but that there are plans for their
accomplishment and completion in time for the Fall semester, 1977,
enrollment. In respect to Borinquen University's plans to operate
entirely on a tuition cost basis, Dr. Schofield stated that of the
146 medical schools in the United States and Canada none is able to
operate accredited programs solely on the basis of tuition income.
(Schofield deposition, page 16)
With respect to the admission program, the thirty-five dollar
fee for filing an application for admission appears to be
reasonable. Applicants are given the Miller Analogies Test, a
standard test widely used, for which Borinquen University charges a
fee of $350 to cover the test and interview. This test can be
taken almost any place in the United States for from ten to fifteen
dollars. (Schofield deposition, pages 18-19) The student who is
accepted as a student is requested to send a certified check for
$6,500 to reserve a place in the class. The general practice in
this regard in the usual medical school is to call for a deposit
ranging from $50 to $100, after which time arrangements are made
for the payment of the remainder of the costs over a longer period
of time.
In the establishment of a new medical school, the Liaison
Committee regards the date of the appointment of a competent Dean
as the date to be considered as the beginning of the process. In
the thirty new medical schools established since 1960, the length
of time between the appointment of the Dean to the enrollment of
the first class has ranged from eighteen months to fifty-two
months, with the mean of the experience of those thirty schools
being about twenty-six to twenty-eight months. Based on this
experience, it was the conclusion of Dr. Schofield and his
colleagues that, as of the time of their May 2, 1977, visit it
would not be possible for Borinquen University to make all the
appropriate arrangements before the scheduled enrollment of the
first class in September of 1977. (Schofield deposition, pages
22-25)
Dr. Schofield's office receives many inquiries, most of them
from Northeastern United States, about Borinquen University and
whether it is accredited. Borinquen University has not applied to
the Liaison Committee for accreditation. (Schofield deposition,
page 26)
There is a status for medical schools known as "provisional"
accreditation, which is the first step leading to professional
accreditation. For example, early in its experience an institution
asks the accrediting agency (1) to come to judge whether it has a
satisfactory plan for the development of a medical school, (2) to
make a judgment as to whether the resources to implement such a
plan can be obtained, and (3) to make a judgment whether the plan
has a good chance of being implemented if these conditions are met.
If the answers to these questions are in the affirmative, the
Liaison Committee can issue what is known as a "letter of
reasonable assurance," which is a legal determination sufficient to
satisfy the requirements of statutes under which Federal funds may
be transferred to the newly-formed medical school. (Schofield
deposition, pages 26, 27)
Stage two in the procedure is usually at least a year before
the enrollment of the first class, and this step is called
"provisional" accreditation. Borinquen University has applied for
neither a letter of reasonable assurance nor provisional
accreditation. (Schofield deposition, page 28)
In Item 6, page 12 of Appendix 2, it is stated, "Borinquen
University has as one of its objectives and goals the full
accreditation of the Liaison Committee on Medical Education. This
full accreditation cannot be obtained by any school until the first
graduating class." This statement is incorrect, because
"provisional accreditation" has usually been granted about twelve
months before the enrollment of the first student. The schools are
inspected each year and if a school maintains the required
standards, by the time the M.D. degree is conferred upon the first
class, the school is a candidate for full accreditation.
(Schofield deposition, page 29) Since Borinquen University Medical
School states that it plans to start in September, 1977, and since
provisional accreditation precedes enrollment of the first student,
this time schedule precludes the possibility of the first enrollee
graduating from a fully accredited school.
A bona fide medical school is one which has a reasonable
likelihood of being accredited by the Liaison Committee or one
which already is accredited by the Liaison Committee. Based upon
his observations of May 2, 1977, and upon what the Committee was
told by the officers of Borinquen University in the conference of
May 2, 1977, it is the witness's opinion that Borinquen University
is not a bona fide medical school. (Schofield deposition, page 34)
In May, 1977, the faculty and the library of Borinquen
University were inadequate, but Dr. Schofield was not aware of any
development that might have taken place between May 2 and June 14,
the date of his testimony.
On cross-examination, Dr. Schofield testified that there were
in June, 1977, two medical schools operating in Puerto Rico without
accreditation by the Liaison Committee. These schools are
Universidad Internacional Eugenio Maria de Hostas and Universidad
del Caribe, Escuela de Medicina. These schools and the Catholic
University of Puerto Rico have "provisional" accreditation and they
have applied for accreditation by the Committee. (Schofield
deposition, page 69) But, as of the date of the Schofield
deposition, no decision had been announced on those applications.
(Schofield deposition, pages 42 and 44) If, as apparently
happened, these schools (Hostas and Caribe) enrolled students
before they became accredited, they would not necessarily have to
wait with the usual 18 to 15 months between the appointment of the
Dean and the enrollment of the first year class of medical
students. (Schofield deposition, page 53)
The Catholic University does not enroll students yet, but all
three of these schools have libraries, faculty, classroom
facilities, laboratory facilities, and equipment. If Borinquen
University requests accreditation and meets the stipulated
procedures, the Committee would hold an inspection and make a
decision in accordance with the regular procedure. (Schofield
deposition, page 54)
It is suggested in the record (Schofield deposition, page 58)
that the accrediting authority of the Liaison Committee which
formerly extended for a period of four years recently was reduced
to a two-year period, but this fact has no bearing on this
proceeding.
In addition to Dr. Schofield's curriculum vitae which was
Exhibit A to his deposition, the following exhibits were received
in connection with his testimony: Complainant's Exhibit B, a
pamphlet entitled "Accreditation of Schools of Medicine: Policy
Documents and Guidelines"; Complainant's Exhibit C, a document
entitled "Liaison Committee on Medical Education Procedures Leading
to Provisional Accreditation of New Medical Schools"; Complainant's
Exhibit D, a document entitled "Accreditation of Medical Colleges
By the Liaison Committee on Medical Education"; Complainant's
Exhibit E, a document entitled "Projected Budget for
Borinquen University Medical Division, 1977-1978;" Respondent's
Exhibit 1, a copy of an article entitled, "More Trouble for Doctors
and Lawyers," from page 102 of April 25, 1977, issue of Business
Week.
2. David Shanker was another witness whose deposition was
received. Mr. Shanker saw Respondent's advertisement in the New
York Times (Complainant's Exhibit 1 to the Shanker deposition) and
he sent in a request for an application, together with $35 to pay
the fee, on February 13, 1977. The application was received
(Complainant's Exhibit 2 to the Shanker deposition) and an
interview was arranged and held on March 6, 1977. Present were
George Haggerty, John Haggerty, Frank Carbo, Esq.
and two other
representatives of Borinquen University, and David Shanker was
accompanied by his father, Sidney Shanker, although Sidney Shanker
was not present at the actual interview.
At the interview, the fee of $350 was paid, after which David
Shanker was given an examination consisting of multiple choice
questions and some mathematical questions. After the test, he was
asked "three or four" questions, but the interview was cut short
because the Borinquen University representatives said they had
obtained the necessary information from Sidney Shanker. David was
told that the University was going to seek a "letter of reasonable
assurance," which should be forthcoming in May, 1977. (David
Shanker's deposition, page 9)
At the conclusion of the interview, David was given a letter
notifying him that he had been accepted as a student by Borinquen
University (Complainant's Exhibit 3 to David Shanker deposition).
A letter of acceptance advises the recipient of the requirement
to forward the first year's tuition in the amount of $6,500 to
Borinquen University, and it also advised the recipient of the
refund schedule in the event of the withdrawal of the student at
certain time periods. Based upon information received from (a) two
doctors whose names were mentioned at the interview by Borinquen
University representatives; (b) two letters from the Council of
Higher Education in Puerto Rico (Complainant's Exhibits 4 and 5 to
the D. Shanker deposition); and (c) a friend of the Shankers living
in Puerto Rico, or persons who were friends of a friend of the
Shankers, the tuition was never sent to Borinquen University. Dr.
Shanker and David Shanker sent a memorandum of the events of their
experience with Borinquen University to, among other addressees,
the Attorney General of the State of New York (Complainant's
Exhibit 6 to the David Shanker deposition).
3. Sidney Shanker, Ph.D., David's father, was also deposed.
Dr. Shanker is a professor of English at the City University of New
York. He went with David when he was interviewed as mentioned
above. Dr. Shanker was told that a Dr. Sherman, a professor of
Anatomy from Downstate Medical College, would head the faculty on a
rotating basis. He was also told that a Dr. Goldberg, of the
Borough of Queens, would be in charge of curriculum and the elder
Shanker was encouraged to contact both individuals. Mr. Haggerty
also mentioned the name of a Mr. Landes, a New York State
legislator representing the Great Neck area. As a result of
communications from the three references given by Borinquen
University's Mr. Haggerty, Dr. Shanker decided not to pay the
$6,500 tuition, and he wrote a letter to Borinquen University
requesting the refund of the $350 fee for the test and interview.
The last request went unanswered.
During the course of David's interview, Dr. Shanker was told by
Borinquen University representatives that there was a hospital that
had dormitory facilities that would be available for students
during their first year, and that the laboratory facilities also
would be available for September, 1977, school opening. (Sidney
Shanker's deposition, pages 10 and 11)
There was cross-examination of Dr. Shanker but it served
principally to buttress the testimony he had given on direct. An
exhibit to his testimony was a letter from a Mrs. Helen Margarida,
a friend of one of Dr. Shanker's Washington, D.C. friends. Mrs.
Margarida replied to some of Dr. Shanker's inquiries concerning
Borinquen University.
4. The next deposition was that of Dr. Harry Elbaum, a
dentist, 87-18 Avenue A, Brooklyn, New York. A friend of Dr.
Elbaum's, Bruce Weiner, had given him an envelope (Elbaum
deposition, Ex. 1) containing a number of papers including a letter
addressed "Dear Applicant" (Elbaum deposition, Ex. 2A); a Borinquen
University Medical School checklist (Ex. 2B), part of which (Ex.
2C) advises the applicant of the requirement to deposit the $6,500
within one week to assure his place in class; a curriculum covering
a four-year period (Ex. 2D); and a listing of Borinquen University
Medical Division admission requirements (Ex. 2E). Dr. Elbaum sent
to Borinquen University, as directed, a money order for $35 with
his application. A week later he received a telephone call from a
woman in Puerto Rico who said that she was the secretary of
Borinquen University. She told Dr. Elbaum to report to Howard
Johnson's at Kennedy Airport on the following Saturday, but this
date was inconvenient for Dr. Elbaum, so he later went to Puerto
Rico for the interview on or about the 17th or 18th of April, 1977.
(Copies of the airline tickets are Exhibits 4A and B to the Elbaum
deposition) Dr. Elbaum took a test which lasted about twenty
minutes and he was then interviewed by persons whom he identified
as George Haggerty, someone else named Haggerty, and a third,
unknown, person. After the interview, he saw, on the third floor,
a computer and a classroom that would seat about ten people. The
interview had been conducted on the sixth floor, and Dr. Elbaum was
told that there were more facilities, including laboratories, on
the upper floors but he was not shown those other facilities.
Also, he was told that Borinquen University was in the process of
acquiring another building. (Elbaum deposition, page 13) Dr.
Elbaum was told that
a Dean and a staff had been appointed and the Borinquen University
representatives showed him resumes of the staff. Dr. Elbaum paid
for the test and the interview with his check for $350. (Exhibit 5
to the Elbaum deposition)
On the same date, Dr. Elbaum was given copies of a letter from
the Liaison Committee on Medical Education (Exhibits 6A and B of
his deposition) and from the World Health Organization (Elbaum
deposition Exhibit 7) addressed to George Haggerty, President of
Borinquen University. The letter from the Liaison Committee is
dated March 21, 1977, and related to a prospective visit to
Borinquen University by a survey team in response to a formal
request by Borinquen University for a letter of reasonable
assurance. In this letter, Borinquen University was cautioned not
to indicate that it was accredited. The letter is signed "J. R.
Schofield/ms" over the typed name, "J. R. Schofield, M.D., LCME
Secretary, 1976-77." On the left side of the page are the initials
"JRS:ms." The World Health Organization's letter dated March 9,
1977, points out that the World Health Organization neither
accredits nor recognizes medical schools. It publishes a list or
directory of medical schools, but the mention in the directory does
not indicate accreditation.
After the interview, Dr. Elbaum was given a letter of
acceptance as a student at Borinquen University (Exhibit 8 to his
deposition) in which he was told he was required to send the usual
$6,500 for the first year's tuition. The withdrawal refund
schedule also is set forth in this letter. Later, Dr. Elbaum
requested that he be allowed until May 21, 1977, to make the
required payment. (Exhibit 9 to the Elbaum deposition)
Dr. Elbaum was told by Borinquen University's representatives
that they were not accredited by the American Medical Association,
but that such accreditation was easy to get. (Elbaum deposition,
page 26)
Dr. Elbaum was told, also, that in the following weeks
Borinquen University representatives would meet with
representatives of the Commonwealth of Puerto Rico, and that the
school was almost guaranteed to get accredited by Puerto Rico.
Dr. Elbaum never sent the $6,500 tuition fee because his
suspicions and doubts were aroused about the school by (1) Mr.
Haggerty's quick acceptance of the qualifications of another
applicant whose papers Dr. Elbaum had taken with him, (2) by the
remarks of Postal Inspector Pack, and (3) by the remarks of the man
who had picked him up and given him a lift to the school that
morning. (Elbaum deposition, transcript pages 30-31, and Exhibit
9)
5. The next deposition was that of Norman Phillips of 200
Winston Drive, Cliffside Park, New Jersey. Mr. Phillips said he
received from a friend exhibits identical to Exhibit 2A through 2E
to the Complaint. He sent in the application and the check for
$35. He later received word that he had been preliminarily
accepted at Borinquen University and he was asked to go to New York
for an interview. He went for the interview, which was attended by
Mr. George Haggerty and two unknown persons. He was given the
Miller Analogy Test and a minor I.Q. type of examination. (Norman
Phillips deposition, page 7) The interviewers showed Mr. Phillips
letters from the Liaison Committee and from the World Health
Organization, and they asked him to interpret these letters. He
said that he read the letters to mean that there was a possibility
that accreditation might not be forthcoming. The Borinquen
University representatives specified that they might not get
accreditation and they stressed this. The only question asked by
Mr. Phillips related to living conditions. In reply to this
question, he was told that Borinquen University was going to take
over a hotel or other facility so that the students could live
together in a dormitory setting. About five minutes after the
interview, he was told that he had been accepted by Borinquen
University. Within the following week, as specified in the letter
of acceptance, he paid the first year's tuition. (Norman Phillips
deposition, page 10)
On cross-examination Mr. Phillips said that his letters of
inquiry to the school had gone unanswered because, he understood,
the mail was being detained. He added that it is very hard to run
a school with this type of investigation in progress. He stated
that he felt that accreditation would be almost impossible. On
June 27, 1977, he wrote to Borinquen University requesting the
refund of his tuition payment. This letter was prompted by
information obtained by Mr. Phillips' father, who is a medical
doctor, from Dr. Schofield, and from Dr. Muriente, the Dean of
Borinquen University.
6. The next deposition is that of Saul H. Phillips, M.D., a
radiologist and the father of the previous witness, Norman
Phillips. After the interview of Norman, nothing was received by
the family for several weeks. Then Norman sent to his father all
the literature he had received from Borinquen University.
Dr. Phillips called Dr. Schofield who said Borinquen
University's application for accreditation had been withdrawn by
the school late in May. Dr. Phillips then called George Haggerty,
who told him to call Dr. Muriente. Dr. Muriente said there was no
application for accreditation and that Borinquen University had
written a letter asking for information that would help Borinquen
follow the steps for accreditation.
After the rulings were made with respect to the foregoing
depositions, Complainant called as its first witness at the
hearing, Dr. Enrique Perez-Santiago, M.D., Dean of the University
of Puerto Rico's Medical School, which is accredited by the Liaison
Committee on Medical Education and by the Superior Education
Council of the Commonwealth of Puerto Rico. Graduates
of this medical school are entitled to take State Board
examinations in any State, Commonwealth or Territory of the United
States.
The initial studies relating to the establishment of a medical
school in Puerto Rico began in 1944. (Tr. 19) The actual process
of establishing the legal basis, the location of funds, the
recruiting of a faculty, and so forth, began in 1948 and it
required two years, or until 1950, for their completion. The
current cost per student at the University of Puerto Rico Medical
School is approximately $12,000 per year per student. Before it
admitted its first student, the University of Puerto Rico Medical
School had a letter of reasonable assurance from the LCME. It
received full accreditation after the graduation of the first
class, in 1954.
The University of Puerto Rico Medical School could not teach
250 medical students on a budget of $1,625,000, which is the budget
of Borinquen University. Puerto Rico Medical School has a total of
510 students in all classes and it now admits about 150 students
each year. (Tr. 23, 24) The current annual budget is over
$8,000,000.
The proposed curriculum for Borinquen University covers more or
less the same subjects that are taught in medical schools having a
departmental type of curriculum, but, based on his experience, Dr.
Perez-Santiago said it would not be possible to teach 250 students
these subjects with the proposed budget for Borinquen University.
(Tr. 26) Four or five laboratories would be needed, as would a
classroom that would accommodate 250 students and other facilities
so that these students could be divided into groups and taught
individually. Affiliation with a hospital is vital to a medical
school, and arrangements with a hospital will have to be concluded
prior to admitting the first class. (Tr. 27) The University of
Puerto Rico Medical School has affiliations with hospitals having a
total of 2,500 beds. Freshman medical students do some of their
work in hospitals, (Tr. 28) although this depends to some extent on
the curriculum. (Tr. 38)
On cross-examination it was pointed out that some medical
schools are operating in Puerto Rico without accreditation.
Because of a law passed by the Commonwealth Legislature in 1976,
these schools that were in operation when the law became effective
have a right to a temporary license. The University of Puerto Rico
Medical School is the only fully accredited medical school in
Puerto Rico. (Tr. 35) There is one school that has a temporary
license for one year in Puerto Rico from the Superior Educational
Council. Dr. Perez-Santiago repeated that in the experience of the
Medical School of the University of Puerto Rico, 125 students could
not be taught for the money in Borinquen University's budget.
The next witness was Miss Myrna Fuentes, a legal adviser in the
Department of Education of Puerto Rico. The Department of
Education does accreditation of educational institutions at the
non-graduate level, but not at the graduate level such as medical
and law schools. Hence, a statement to the effect that a medical
school is currently approved by the Department of Public
Instruction of the Commonwealth of Puerto Rico would be a statement
of a legal impossibility. (Tr. 52) The Technical School in
computer sciences which is run by Mr. Haggerty is approved by the
Department of Public Instruction of Puerto Rico. (Tr. 57)
Postal Inspector Carlyle Pack was the next witness. He is
domiciled in Newark, New Jersey, and in the course of his duties he
was given the papers received by Dr. Harry Elbaum. Among these
papers was the letter (Elbaum deposition 6A and B) to Mr. George
Haggerty of Borinquen University from Dr. Schofield of the Liaison
Committee. Inspector Pack checked with Dr. Schofield, who verified
the authenticity of that letter.
Inspector Pack visited Borinquen University premises at 403 del
Parque, Santurce, San Juan, Puerto Rico. This is the location of a
fourteen-story condominium or apartment building of which four
floors are occupied by Borinquen University. These floors are
divided into classrooms with chairs and long tables in them. At
the time of Inspector Pack's visit, there were some rooms with
blackboards on the walls and there were some office spaces. There
was a room designated as a library, but it contained nothing that
appeared to be related to a medical school. Inspector Pack had not
seen a list of faculty members, and, so far as he knew, at the time
of his testimony, Dr. Muriente, the Dean, was the only faculty
member. (Tr. 75)
During his investigation, the Inspector learned that
representations were made by Borinquen University's representatives
that the University was affiliated with Whitestone Hospital in New
York. Through an Inspector located in New York, it was developed
that Whitestone Hospital is not affiliated with Borinquen
University; there have been no discussions by Whitestone regarding
affiliation with Borinquen University; and there is no relationship
between Borinquen University and Whitestone Hospital.
(Complainant's Exhibit 1. See also, the testimony of Mr. Seymour
Post, who testified on August 22, 1977, Tr. 3-49).
Inspector Pack received a letter (Complainant's Exhibit 3) from
the Assistant to the Executive Secretary for the Council on Higher
Education of the Commonwealth of Puerto Rico, in which it is stated
that this Council had a representative to meet with Borinquen
University's President on April 20, 1977, to discuss the procedures
to be followed to apply for a license for the proposed School of
Medicine. The President of Borinquen was also interested in
licensing three other existing institutional units that offer
technical courses. Mr. Haggerty said that the
application would be submitted in the near future in respect to the
medical school proposal to be inaugurated by Borinquen University.
But as of May 9, 1977, the application had not been received by the
Council on Higher Education.
Inspector Pack sent two test letters of inquiry to Borinquen
University, in return for which he received materials attached to
the Complaint as Exhibit 2, with the exception of pages 11, 12 and
13 of Exhibit 2, which is Appendix B to this decision. (Tr. 98)
The first test letter of inquiry was under the name of James
Henderson; and the second was under the name of Linda Colgate. The
reply to the second letter is Complainant's Exhibit 6 and consists
of documents which are the same, or the same in substance as pages
1 through 10 of Appendix B to this decision. Later, there was
received by the Inspector a correction to the sheet headed "A note
on accreditation." (Complainant's Exhibit 7) Complainant's
Exhibit No. 8 is a copy of the completed application in the name of
Linda Colgate and the money order receipt in the amount of $35.
Names of other applicants were obtained by means of a mail
cover, which means that incoming mail addressed to Borinquen
University was checked to get the return address of the persons who
were writing to Borinquen University. No mail was opened.
Postal Inspector Linda Colgate was the next witness. Borinquen
University sent to "Linda Colgate," a name identified above as
having been used in one of Inspector Pack's test letters, a receipt
for the thirty-five-dollar application fee. (The receipt is in the
record as Complainant's Exhibit No. 9) By letter dated May 19,
1977, (Complainant's Exhibit No. 10) Linda Colgate was advised that
Borinquen University was to act further on her application for
admission, and she was asked to appear at 10 a.m. on May 28, 1977,
at the Hilton Inn at J.F.K. Airport for an interview and for
testing. She was also asked to come with a certified check for
$350 to pay for the test and interview.
On May 28, 1977, Inspector Colgate took the test and she was
interviewed, but in Puerto Rico, by Mr. George Haggerty and a man
who identified himself as VanVorgamin. Inspector Colgate paid for
the test and the interview with two money orders -- one for $300
and the other for $50 (Complainant's Exhibit 11) which she endorsed
to Borinquen University and for which she was given a receipt.
(Complainant's Exhibit 12)
Inspector Colgate was presenting herself as a prospective
student and was trying to get information about the school. All
that she saw was a couple of classrooms and a computer room with a
computer in it. (Tr. 153) She was taken to the tenth floor and
shown a building a few blocks away where the medical school was to
be located. She did not meet any of the faculty, but she did meet
the Dean, Dr. Muriente. The Dean told her that he was hiring
faculty members, that he had advertised in a magazine addressed to
doctors, and that he had a friend at the University of Puerto Rico
Medical School who would be able to help out on a part-time basis.
In respect to accreditation, she was told, first, that they
would take into account all possibilities of accreditation,
including a local license to operate the school. Next, they
mentioned the Liaison Committee and they indicated that there was
some problem there, but they were quite sure that after four years
they would be accredited. If trouble was encountered and
accreditation by the third year did not seem possible, they would
begin negotiations with some "banana republic" where the students
would go for a few months. The students would attend the
university of that country and graduate as foreign medical
students, and then go to the United States, take the appropriate
examinations and, then, practice medicine.
The tour conductors, Messrs. Haggerty and VonVorgamin, said
they couldn't get information out of the LCME and that if you
called the office of the Committee, you would be told that the
application had been withdrawn. They indicated that there was some
kind of problem, but they would carry the battle for accreditation
to court, if necessary.
The Borinquen University representatives told Inspector Colgate
that there were new laws in Puerto Rico and that the law required a
license. They were getting a license for the technical schools and
they were pretty sure they would get a license for the medical
school. They indicated that since they were recognized by the
Puerto Rican government, Inspector Colgate would have no trouble
practicing medicine in Puerto Rico when she graduated.
They told her that after graduation (Tr. 2-155, 156) she could
take a "flex" exam and some other type of examination and that she
wouldn't have to worry about State Board examination unless she
wanted to practice in a particular State. If so, she would have to
take the State examination. They also told her that when she
graduated from Borinquen University, eligibility to practice in
Puerto Rico would be automatic. They added, however, that it would
not be a good idea to practice in Puerto Rico because she would
then be competing with local Puerto Rican doctors. (Tr. 2-156)
Messrs. Haggerty and VonVorgamin told their guest that they
needed affiliation with a hospital having about 1500 beds and that
negotiations had been opened with Whitestone Hospital in Queens.
When "student" Colgate was ready to do clinical practice, she would
have to go to New York and work at that hospital, which posed some
problems for the University because the University then could not
keep an eye on the students. The Borinquen University
representatives stated that they preferred affiliation with a local
hospital in Puerto Rico, if it is possible to work out such an
arrangement. (Tr. 2-157)
On cross-examination it was developed that Inspector Colgate
carried a transmitter on her person when she went to the school for
the test and interview. The conversation was transmitted to a car
outside the building where it was recorded. (Tr. 2-14, 15) She
was at the school on Saturday, May 28, 1977, the first time, and
the second time she was at the school was the following Tuesday.
On both occasions she was carrying a transmitter. (Tr. 2-16) No
tapes of the conversations that took place on those occasions were
played during the course of the hearing, nor has this
Administrative Law Judge ever heard, or seen a transcript of, such
tapes.
Complainant's next witness was Mr. Luis E. Gonzales-Vales,
Executive Secretary on the Council of Higher Education,
Commonwealth of Puerto Rico, hereafter referred to as the Council.
The Council, by law, is the accrediting body for private
institutions of higher education in Puerto Rico. Under Public Law
No. 31, of May 10, 1976, the Council is the Government Agency
empowered to license private institutions of higher education in
Puerto Rico. Any person or entity who establishes a private
institution of higher learning in Puerto Rico must obtain a license
from the Council. (Tr. 2-35)
There was a meeting on April 20, 1977, at the Council's
offices, attended by the witness's assistant, Mr. Jose
Carmelo-Cristobal and by representatives of Borinquen University
concerning the latter's request for a license from the Council.
Originally, Borinquen University was established to offer programs
in computer sciences, with centers located in San Juan, Ponce and
Mayaguez. The Council was advised at the April 20, 1977 meeting of
the University's plans to establish a medical school, and Borinquen
University's representatives were advised of the need to present to
the Council the necessary documentation to justify the granting of
a license. A letter under Mr. Gonzales' signature went to
Borinquen University on April 20, 1977, enumerating the number of
documents which had to be submitted in order for the license
request to be considered. (Tr. 2-36, 37)
Borinquen University was requested to provide information
concerning the background of the medical school, its purposes,
objectives, the faculty, the curriculum vitae of each faculty
member, administrative personnel and their curriculum vitae, the
organization and administrative structure, description of
facilities, and much other information. (Tr. 2-37, 38) None of
these items was supplied by Borinquen University. Had such date
been supplied, the Council would have applied the criteria used by
the LCME in evaluating such data. (Tr. 2-38)
Under Public Law 31 of May 10, 1976, the Council must
promulgate regulations which, at the time of the hearing, had been
approved by the Council and were in the hands of the Governor
awaiting his signature. When those regulations are approved, the
institutions that must abide by them will have a one-year period in
which to comply with them. If the institutions do not comply with
the regulations within one year, then they are subject to legal
action requiring them to cease and desist from their operation.
(Tr. 2-39) Any institution that was in operation at the time the
law was enacted will be granted a temporary license to operate, and
each such institution will have one year subsequent to the approval
of the regulations to meet the standards set forth in the
regulations. Borinquen University Medical School, so far as the
witness was aware, was not in existence at the time of the
enactment of the law and, hence, it would not be entitled to a
one-year period in which to meet the requirements of the
regulations. If an institution had been established and operated
between 1 July and 31 December, 1976, it would have been eligible
for recognition under the "grandfather" clause. (Tr. 2-40) A copy
of "Regulations for the Granting of License to Private Institutions
on Post-Secondary Education," promulgated by the Council and
approved by the Council on June 9, 1977, was admitted in evidence
as Complainant's Exhibit No. 13. (Tr. 2-41) That is the set of
regulations which, at the time of the hearing in San Juan, was in
the hands of the Governor awaiting his signature, or his refusal to
sign it. No information was furnished for the record to show what
action the Governor of Puerto Rico took with respect to those
regulations.
On Page 12 of Appendix B to this decision, it is stated that
Borinquen University would be operating with a provisional
accreditation by the Council. The Executive Secretary of the
Council testified that the Council does not grant provisional
accreditation.
It is the Council's position that Public Law 31, approved 10
May, 1976, contained a grandfather provision which stated that any
institution that was effectively operating within six months after
the approval of the law would automatically be issued a license.
The license so issued would be effective for a period of one year
following the approval by the Governor of the Commonwealth of
Puerto Rico of regulations issued by the Council, within which year
the institution must meet the requirements of the regulations.
(Tr. 2-70) This matter presently is being litigated in the Courts
of the Commonwealth of Puerto Rico and as of the July 19 and 20,
1977, hearings in this proceeding had not been decided.
Based on information received at the hearing, Borinquen
University applied for licensure under the new law, but because it
was seeking to broaden the scope of its operations to include the
medical school in addition to the computer sciences program, the
documents were rejected and they were returned to Borinquen
University with the Council's letter of April 20, 1977, requesting
additional information and documentation. (Tr. 2-71) The
requested information for the technical courses has been supplied
but, inexplicably, no license had been issued as of the date of
the July, 1977, hearings in the instant matter. (Tr. 2-73). It
was the opinion of the witness that any school organized after 31
December, 1976, is not covered by either of the two provisional
conditions of the statute. (Tr. 2-94)
We next move to the session of the hearing which was held on
August 22, 1977. At this hearing, the Complainant presented two
witnesses. The first was Inspector Peggy Agard, whose signature
appears on Complainant's Exhibit 1, which is the statement of that
Inspector's findings with respect to any arrangement between
Borinquen University and Whitestone Hospital, in the Borough of
Queens, with respect to affiliation of the two institutions. After
Inspector Agard verified the authenticity of this document, it was
received in evidence. (Tr. 3-27, et seq.)
The second witness presented by the Complainant was Seymour
Post, Attorney at Law, 233 Broadway, New York, New York 10007. Mr.
Post is the General Counsel of the Whitestone General Hospital and
he is the legal adviser to the Board of Governors. That hospital
is a 103-bed hospital and it is designated by its general counsel
as an acute care hospital. It has no affiliation with any teaching
medical institution.
Mr. Post concluded his testimony by stating that Whitestone
Hospital is not affiliated with Borinquen University Medical
School; there have been no discussions regarding affiliation with
Borinquen University; and there is no relationship between
Borinquen University and the Whitestone Hospital. (Tr. 3-40 et
seq.)
There is a contract, in which Dr. Cole 4/ is interested,
relating to the sale of Whitestone Hospital, but the contract
provides that if the sale is not consummated by January 1, 1978,
the contract will be cancelled. Other contracts for the sale of
this hospital have failed to mature. (Tr. 3-49, 50) After the
testimony of Mr. Post, the Complainant rested.