STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS ELMO HOWSE, )

)

Petitioner, )

)

vs. ) Case No. 99-1430

) DEPARTMENT OF HEALTH, BOARD OF ) ORTHOTISTS AND PROSTHETISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 21, 1999, a formal administrative hearing in this case was held in Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lee Ann Gustafson, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Thomas Elmo Howse, pro se

15227 Gulf Boulevard Madeira Beach, Florida 33708

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner's application for licensure as a pedorthist should be granted.

PRELIMINARY STATEMENT

In March 1998, Petitioner Thomas Elmo Howse applied for licensure by endorsement as a pedorthist. The application was

filed with the Respondent, Department of Health, Board of Orthotists and Prosthetists.

By letter dated October 21, 1998, the Respondent notified the Petitioner that at the Board's September meeting, the Board had decided not to implement licensure by endorsement as provided in Section 468.807, Florida Statutes, and therefore the application was proposed for denial. The letter also advised that the Petitioner could amend the application and seek licensure under Section 468.803, Florida Statutes.

The Board met in December 1998, and voted to deny the Petitioner's application.

By letter dated January 29, 1999, the Petitioner asked the Board to reconsider his application for licensure under the provisions of Section 468.805, Florida Statutes. The Board apparently treated the letter as a request for hearing, and an informal hearing was scheduled for the Board's March, 1999, meeting. At the Board meeting, the Board decided to forward the matter to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on his own behalf, presented the testimony of one witness, and had one composite exhibit admitted into evidence. The Respondent presented the deposition testimony of one witness and had Exhibits numbered 1-2 admitted into evidence. A Transcript of the hearing was filed on

September 27, 1999. The Respondent filed a Proposed Recommended Order.

FINDINGS OF FACT

1. The Department of Health, Board of Orthotists and Prosthetists, is responsible for licensure of pedorthists in the State of Florida.

2. The Petitioner has applied for licensure in Florida as a pedorthist.

3. In his license application, question 3L states as follows:

   Have you ever entered a plea of guilty or nolo contendere to, or been convicted of a crime? You must include all misdemeanors and felonies, even if adjudication as withheld.

   
   

4. The Petitioner responded to Question 3L by checking the box marked "Yes."

5. The Application provides as follows:

   
   

   Any "YES" answer must be accompanied by an attached written AFFIDAVIT (a sworn statement before a notary public) explaining in detail the "YES" answer. The affidavit must include all pertinent information such as explanation(s), date(s), address(es), employer(s), physician(s), institution(s), agency(ies), and hospital(s). Additional information may be requested, such as court documents, employment verification, evaluation letters from treating physicians, etc.

6. By letter dated February 28, 1998, accompanying the application, the Petitioner advised the Board that additional documentation would be forthcoming.

7. By letter dated April 10, 1998, the Board requested additional information, including the response to question 3L.

8. By affidavit dated July 13, 1998, the Petitioner states in material part as follows:

   In late 1982 I became ensnared in a check cashing 'scheme' while I was employed as Claims Manager for a large international moving & storage company which is headquartered in Tampa, FL. There were four other people involved including outside repair people and employees under my supervision. The unlawful activity was in process well before I was employed with the company. The problem was that I allowed it to continue after I found out about it, and since I was the supervisor, I was ultimately held responsible. Naturally, everyone got caught. I received ten years probation, which was served out in Nashville, TN. . . .

9. The Petitioner's affidavit fails to state the full extent of his participation in what he identified as the "scheme."

10. As the Claims Manager for a moving company, the Petitioner was responsible for the payment of property damage claims filed by customers of the company, after customers' possessions were damaged in moving or storage. While reviewing the books, the Petitioner determined that outside repair persons were receiving payments for work not performed and inflated payments for other work which was done. After discussing the situation with one of his employees, the Petitioner determined that company employees were receiving "kickbacks" from the outside repair people.

11. Although the Petitioner suggested he tried to stop the practice, the greater weight of the evidence establishes that he participated in and profited from the operation.

12. The company paid approximately $40,000 to $50,000 monthly in damage claims. The Petitioner was responsible for approval of approximately 90 percent of the claims each month.

13. In March of 1983, the Petitioner was charged with four counts of grand theft in Hillsborough County, Florida, related to his participation in the operation.

14. In May of 1983, the Petitioner was convicted of two counts of second-degree grand theft. A sentence of ten years' probation was imposed, and restitution was ordered. In the two remaining counts, the Petitioner entered a guilty plea and adjudication was withheld. A sentence of five years' probation as imposed and restitution was ordered.

15. The court terminated the Petitioner's probation on June 29, 1998.

16. The Petitioner has not had his civil rights restored.

    
    

17. The testimony of Jeffrey Hyman establishes that the practice of pedorthics provides opportunities for the commission of fraud. Insurance companies can be defrauded by billing for devices not provided to patients or by billing for expensive devices while providing less expensive devices to patients. Patients can be exploited by providing services that are unnecessary for which insurance reimbursement is available. A

    physician and pedorthist, both willing, could enter into a "kickback" scheme similar to that for which the Petitioner has previously been convicted. The Petitioner's prior convictions directly relate to the type of business in which a licensed pedorthist would engage.

18. The evidence fails to establish that the Petitioner meets the education and training requirements set forth by statute.

19. Section 468.805, Florida Statutes, exempts persons who practiced in Florida for two years between July 1, 1990 and March 1, 1998, from meeting certain education and training requirements. The Petitioner did not practice pedorthics in Florida for two years between July 1, 1990 and March 1, 1998.

20. The education and training requirements applicable to the Petitioner mandate 120 hours of board-approved training and completion of an 80-hour internship of "qualified working experience." The evidence fails to establish that the Petitioner has completed the training and education required for licensure.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

22. The Petitioner has the burden of proving, by a preponderance of the evidence, entitlement to the licensure

    sought. DOT v. J.W.C. Co. Inc., 396 So. 2d 778 (Fla. 1st DCA 1981.) In this case, the burden has not been met.

23. The Petitioner initially filed his application for licensure by endorsement as provided in Section 468.807, Florida Statutes. Notwithstanding the fact that the application form provides the option of applying for licensure by endorsement, the Board has for reasons unexplained during the hearing, not implemented the provisions of Section 468.807, Florida Statutes.

24. The section provides that the Board "may" issue such licenses. The authority for granting licensure under Section 468.807 rests with the Board's discretion, and therefore the Petitioner's application was proposed for denial.

25. The Board's October 21, 1998, letter to the Petitioner advised that licensure under the provisions of Section 468.807, Florida Statutes, would not occur, and offered the option of amending the application to one seeking licensure under Section 468.803, Florida Statutes. The letter stated that the matter would be considered at the Board's December 1998 meeting. There is no evidence that the Petitioner responded to the October 21 letter.

26. In relevant part, Section 468.803, Florida Statutes, provides as follows:

    468.803 Licensure requirements.--

    1. The department shall issue a license to practice orthotics, prosthetics, or pedorthics to qualified applicants. Licensure shall be granted independently in orthotics, prosthetics, or pedorthics, but a

       person may be licensed in more than one such discipline.

    2. An applicant for licensure must apply to the department on a form prescribed by it in order to take the appropriate licensure examination, including a practical examination demonstrating clinical patient management, when appropriate, and written examinations, one of which demonstrates orthotic, prosthetic, or pedorthic problem- solving skills. The board may accept the examination results of a national orthotic, prosthetic, or pedorthic standards organization in lieu of administering the state examination. In such cases, the department shall set fees appropriate to the level of practitioner and shall examine each applicant who the board verifies:

       1. Has completed the application form and

          paid an application fee, not to exceed $500, which shall be nonrefundable, an examination fee and the actual per applicant costs to the department for purchase or development of the examination, and a license fee not to exceed

          $500;

       2. Is of good moral character;

       3. Is 18 years of age or older;

       4. Has completed the appropriate educational preparation, including practical training requirements; and

       5. Has successfully completed an appropriate clinical internship in the professional area for which the license is sought.

    3. In addition to the requirements in subsection (2), to be licensed as:

    * * *

    1. A pedorthist, the applicant must have:

       1. A high school diploma or its equivalent;

       2. A minimum of 120 hours of training, as approved by the board; and

       3. An internship of 80 hours of qualified working experience, as determined by the board.

27. The Board met in December 1998, and voted to deny the Petitioner's application. The Board apparently considered the

    application under the provisions of Section 468.803, Florida Statutes.

28. As set forth in the Notice of Intent to Deny dated December 28, 1998, the grounds for denial are as follows:

    1. You applied for licensure under Section 468.807, Florida Statutes, which has not been implemented by the Board.

    2. You were convicted of a crime related to the practice of pedorthics or the ability to practice pedorthics, and you have not demonstrated restoration of your civil rights.

    3. You have not demonstrated good moral character.

    4. You have not demonstrated that you are capable of practicing pedorthics with reasonable skill and safety to patients.

29. By letter dated January 29, 1999, the Petitioner responded to the Notice of Intent to Deny, and requested that his application be amended to apply for licensure under the provisions of Section 468.805, Florida Statutes, which provides for a "provisional license" exempt from the education requirements applicable for full licensure. A provisional license may be issued "after the board has completed an investigation into the applicant's background and experience."

30. The Board considered the Petitioner's appeal of the application denial at its March 1999 meeting. There is no evidence that the Board considered the issue of the "provisional license" at the meeting. Following that meeting, the Board submitted the Petitioner's appeal to the Division of Administrative Hearings.

31. As to the issue of licensure under Section 468.803, Florida Statutes, the evidence establishes that the Petitioner is not qualified for licensure. The evidence fails to establish that the Petitioner has completed the education and training required for licensure.

32. Further, the evidence fails to establish that the Petitioner is of good moral character. Conviction of crimes that directly relate to the practice of pedorthics fails to establish good moral character.

33. The Petitioner's failure to fully disclose the nature of his own involvement in illegal activity on the application fails to establish good moral character. The application requires a full explanation at the time the application is filed. More than four months passed after the filing of the application before the Petitioner, after receiving a letter from the Board specifically addressing the issue, filed his affidavit.

34. In his affidavit, the Petitioner stated, "[t]he problem was that I allowed [the "scheme"] to continue after I found out about it, and since I was the supervisor, I was ultimately held responsible." In reality, the Petitioner not only allowed the scheme to continue, he participated in and profited by the fraudulent activity. Good moral character is not established by an attempt to mislead a licensing agency when disclosing the details of prior illegal activity.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Orthotists and Prosthetists, enter a final order denying the application for licensure of Thomas Elmo Howse.

DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1999.

COPIES FURNISHED:

Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Thomas Elmo Howse 15227 Gulf Boulevard

Madeira Beach, Florida 33708

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Joe Baker, Executive Director Board of Orthotist and Prosthetists Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-001430

Orders for Case No: 99-001430