n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MYRIAM LUCIA NALDA, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2966

) BOARD OF MEDICAL EXAMINERS, ) PHYSICAL THERAPY COUNCIL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard on May 19, 1937 in Fort Lauderdale, Florida, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. A transcript was filed on June 23, 1937 and parties submitted proposed findings of fact and conclusions of law. Ruling on the proposed findings of fact are made in the appendix to this Recommended Order.

APPEARANCES

For Petitioner: Myriam Lucia Nalda, pro se

9115 S.W. 150th Avenue Miami, Florida 33196

For Respondent: Patricia V. Russo, Esquire

Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399

ISSUE

The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).

BACKGROUND

Petitioner presented her own testimony and documents from her application file. Among these are a temporary permit to practice physical therapy dated May 23, 1934; a copy of her licensure as a physical therapist in the State of Indiana; a copy of a Report of Evaluation of Educational Credentials done by International Consultants of Delaware, Inc., detailing the general education coursework necessary to make her studies in Colombia equivalent to a U.S. bachelor's degree in physical therapy, and a copy of a transcript for coursework completed at Miami Dade Community College.

Respondent presented the testimony of Mrs. Dorothy Faircloth, the Executive Director of the Board of Medicine and the Physical Therapy Council at the times relevant to Ms. Nalda's application. A composite exhibit was received, composed of Ms. Nalda's first application for licensure by examination received October 10, 1933; a letter evaluating Ms. Nalda's foreign education credentials dated December 5, 1983 from the International Education Research Foundation, Inc.; a notice dated February 26, 1984, that Ms. Nalda had failed the licensure examination; Ms. Nalda's second application for licensure received on May 21, 1984; a notice dated August 21, 1984, that Ms. Nalda failed the second examination; Ms. Nalda's third application for licensure received November 7, 1964; a notice dated March 11, 1985, that Ms. Nalda failed the third licensure examination; Ms. Nalda's fourth application for licensure, received April 2, 1985; a memorandum dated October 22, 1985 explaining the denial of Ms. Nalda's application for examination because she lacked educational credentials equivalent to those required in this country; a letter of evaluation dated July 29, 1986, of Ms. Nalda's foreign education credentials from the International Education Research Foundation, Inc.; and a letter dated September 24, 1986, evaluating Ms. Nalda's foreign educational credentials from International Consultants of Delaware, Inc. A second composite exhibit was received consisting of a letter from Jane Hogencamp, consultant to International Education Research Foundation, Inc., to Ivan Kline, chairman of the Physical Therapy Council, dated June 3, 1984; the minutes of the December 1984 meeting of the Physical Therapy Council; and the minutes of the March 1985 meeting of the Physical Therapy Council.

FINDINGS OF FACT

1. Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part:

   
   

   The Diploma is recognized as equivalent to a valid bachelor's degree in the United States.

   
   

2. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way.

   
   

3. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed.

   
   

4. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical

   Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation.

   
   

5. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology.

   
   

6. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process.

   
   

7. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people.

   
   

8. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes (Supp. 1986).

   
   

10. The Physical Therapy Council of the Board of Medicine certifies applicants for examination and licensure as physical therapists in Florida under Section 486.025(2)(a), Florida Statutes (1985) and Rule 21M-9.020, Florida Administrative Code (1986).

    
    

11. Ms. Nalda bears the burden of establishing her entitlement to licensure in this proceeding. Rule 28-6.008(3), Florida Administrative Code (1986).

    
    

12. This is a de novo hearing. The statutory and rule licensure requirements in effect at the time of the hearing apply to the facts proven at the hearing. Grove Isle, Ltd. v. Bayshore Homeowners' Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982), rev. den., 430 So.2d 451 (Fla. 1983).

    
    

13. Under Section 486.031(3)(b), Florida Statutes (1985), a foreign- trained applicant must possess educational credentials "deemed equivalent to those required for the educational preparation of physical therapists in this country, as recognized by the appropriate agency as identified by the Physical Therapy Council."

14. The educational preparation of physical therapists in this country consists of a bachelor's degree in physical therapy from a program approved by the American Physical Therapy Association at the time of the applicant's graduation. See Rule 21M-7.020(3), Florida Administrative Code (1986). Foreign graduates must demonstrate that their credentials are equivalent to a physical therapy degree in the United States. The two organizations which evaluated Ms. Nalda's foreign education credentials are agencies specifically approved, under Rule 21M-7.020(3)(a) and (b), to perform equivalency evaluations. The specific deficiencies in Ms. Nalda's training identified by International Consultants of Delaware, Inc., which kept her credentials from being regarded as equivalent to a bachelor's degree in physical therapy in the U.S. were the lack of ten credits in the humanities and two credits in natural sciences. The deficiencies did not relate to her training in physical therapy itself.

    
    

15. Ms. Nalda's transcript from Miami Dade Community College demonstrates that she has obtained three credits in English writing, twelve credits in elementary and intermediate Spanish, and three credits in general education biology.

    
    

16. Under the evaluation of her credentials by International Consultants of Delaware, Inc., Ms. Nalda has now met the requirement of Rule 21M-7.020(3), Florida Administrative Code (1986). Ms. Nalda need not go back to International Consultants of Deleware, Inc., so that it may re-affirm that Ms. Nalda needs 10 credits in humanities and 2 in natural sciences or declare that these deficiencies have been satisfied by the coursework at Miami Dade Community College. In this de novo proceeding evidence of the statement of deficiencies determined by one of the agencies designated in Rule 21M-7.020(3) to evaluate foreign credentials along with the entry of the transcript into the record (without objection) demonstrate that Ms. Nalda's credentials now are adequate for her to sit for the examination. To require her to pay for another evaluation to re-affirm what the credentialing agency has already stated would be useless. Her application to sit for the licensure examination as a physical therapist should be granted.

RECOMMENDATION

It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED.

DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966

The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985).

Rulings on Proposed Findings of Fact Submitted by Petitioner

The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a

1. bachelor's degree in physical therapy.

   
   

   Rulings on Proposed Findings of Fact Submitted by Respondent

   
   

   1. Covered in Finding of Fact 1.

   2. Covered in Findings of Fact 1 and 2.

   3. Covered in Finding of Fact 2.

   4. Covered in Finding of Fact 3.

   5. Covered in Finding of Fact 4.

   6. Rejected as unnecessary.

   7. Covered in Finding of Fact 6.

   8. Covered in Finding of Fact 8.

COPIES FURNISHED:

Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation

130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs

The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional

Regulation

Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional

Regulation Marcelle Flannigan, Director

Board of Medicine Physical Therapy Council

130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

PHYSICAL THERAPY COUNCIL

MYRIAM LUCIA NALDA,

Petitioner,

vs

DEPARTMENT OF PROFESSIONAL DOAH CASE NO. 86-2966 REGULATION, BOARD OF MEDICINE

PHYSICAL THERAPY COUNCIL,

Respondent.

/

FINAL ORDER

This matter came before the Physical Therapy Council of the Board of Medicine, Department of Professional Regulation on September 25, 1987. The Council after having reviewed the Recommended Order entered in this case by William R. Dorsey, Jr., Hearing Officer of the Division of Administrative Hearings on July 17, 1987, (Exhibit A), the Exceptions to the Recommended Order filed by the Respondent (Exhibit R), and the complete record, and after hearing oral argument of the Parties and being otherwise fully advised in the premises enters the following Order:

1. Petitioner, Myriam Lucia Nalda, appeared on her own behalf, Respondent was represented by Paticia V. Russo, Assistant Attorney General.

   
   

2. The Council has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes, Chapters 455 and Chapter 486, Florida Statutes, and Rule 21M-9.20, Florida Administrative Code.

RULINGS ON EXCEPTIONS FILED BY RESPONDENT

1. Respondent took Exception to the Conclusion of Law found on page 5 in paragraph 6 of the Recommended Order for the reasons set forth in Respondent's Exceptions (Exhibit B). The Council finds that this Exception is well-founded. Rule 21M-7.020, Florida Administrative Code requires a determination of equivalency from an appropriate accrediting agency. However, said rule does not authorize the Council to attach any legal import to a deficiency statement provided by such an accrediting agency. The Council adopts the Exception filed by the Respondent.

1. Respondent took Exception to the conclusion of Law found on page 5 in paragraph 7 of the Recommended Order for the reasons set forth in said Exception which is attached hereto as Exhibit B. The Council determines that this Exception is well-founded. The Council determines that the Hearing Officer has erroneously concluded that Rule 21M-7.020, Florida Administrative Code authorizes the Council to accept a statement of deficiency from a credentialing agency and a transcript purporting to cure such deficiency in lieu a determination of equivalency from an appropriate accrediting agency. The Council adopts the second Exception of the Respondent.

   
   

2. Respondent took Exception to the Conclusion of Law found on pages 5 and 6 in paragraph 8 of the Recommended Order for the reasons set forth in said

   Exception attached as Exhibit B. The Council determines that said Exception is well-founded. The Council determines that Rule 21M-7.020, Florida Administrative Code provides no authority to the Council to substitute a statement of deficiency and a transcript purporting to cure such deficiency in lieu of a determination of equivalency from an appropriate accrediting agency. The Council adopts the third Exception of the Respondent.

   
   

3. Respondent took Exception to the Conclusion of Law found on page 6 in the last sentence of paragraph 8 of the Recommended Order of the Hearing Officer for the reasons set forth in Respondent's Exceptions attached as Exhibit B. The Council determines that this Exception is well-founded. The Council determines that Petitioner's application to sit for licensure examination as a Physical therapist should be denied, in that Petitioner has failed to provide the determination of equivalency from an appropriate accrediting agency as required by Rule 21M-7.020, Florida Administrative Code. In addition, the Council determines that Petitioner has failed to pass the examination in 3 attempts and has not yet supplied evidence of additional educational or training requirements as required by Section 486.051, Florida Statutes (1986). The Council adopts the fourth Exception of the Respondent.

   
   

4. Respondent took Exception to the Hearing Officer's failure to address and include a Conclusion of Law in regard to the conduct of the formal hearing in this cause for the reasons set forth in Respondent's fifth Exception. The Council adopts this Exception for the reasons set forth in Respondent's Exceptions.

The Findings of Fact as set forth in the Recommended Order are adopted by the Physical Therapy Council as being based on competent substantial evidence. The remaining Conclusions of Law as set forth ion the Recommended Order as modified by the adoption of the Respondent's Exceptions are adopted by the Physical Therapy Council.

The Council concludes that the Recommendation of the Hearing Officer must be rejected, and the application of the Petitioner must be denied.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

WHEREFORE, the Physical Therapy Council hereby Orders that the Petitioner's Application for Licensure as a Physical Therapist be denied.

DONE and ORDERED this 5th day of November 1987 by the Physical Therapy Council.

James A. Ball

Chairman, Physical Therapy Council

Docket for Case No: 86-002966

Orders for Case No: 86-002966