STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREA MARIE LINQUANTI,

Petitioner,

vs.

BOARD OF PHYSICAL THERAPY PRACTICE,

Respondent.

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) Case No. 07-4046

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RECOMMENDED ORDER

On November 13, 2007, a formal administrative hearing in this case was held by video teleconference between Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard Linquanti, Esquire

Carlton Fields, P.A. Post Office Box 3239

Tampa, Florida 33601-3239

For Respondent: Reginald D. Dixon, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner's application for licensure by endorsement as a physical therapist should be approved.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated July 24, 2007, the Board of Physical Therapy Practice (Respondent) notified Andrea Marie Linquanti (Petitioner) that her application for licensure by endorsement as a physical therapist had been denied. By Petition for Formal Administrative hearing filed August 17, 2007, the Petitioner challenged the proposed denial and requested a formal hearing. The Respondent forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on her own behalf and had Exhibits numbered 1 through 3 admitted into evidence.

The Respondent presented no testimony or evidence.

During the hearing, the parties jointly requested that, after the hearing, the case be placed in abeyance for a period of time to allow the parties to conclude settlement efforts.

The parties were directed to file a report by December 12, 2007, and advise as to the status of the dispute. The status report was timely-filed and stated that the settlement efforts had been unsuccessful and that the parties would proceed to file proposed recommended orders.

The hearing Transcript was filed on December 28, 2007. Proposed Recommended Orders were filed on January 11, 2008.

FINDINGS OF FACT

1. The Petitioner is an applicant for licensure as a physical therapist in the State of Florida.

2. The Petitioner attended German educational institutions and graduated in 1994 from a "gymnasium," which appears to be the equivalent of a secondary school unit in the United States.

3. After graduating from the gymnasium, the Petitioner then attended the physical therapy training program at the University of Nurenberg in Erlangen, Germany, from where she graduated in 1997.

4. In 1998, the Petitioner applied for licensure as a physical therapist in the State of Colorado where she took and passed the National Physical Therapy Examination (NPTE) offered by the Federation of State Boards of Physical Therapy (FSBPT).

5. The FSBPT's NPTE is the same examination used by the Respondent as the Florida licensing examination.

6. The State of Colorado granted a license in 1998 to the Petitioner, presumably determining that, in addition to passing the exam, the Petitioner's education met the requirements of Colorado law.

7. At all times material to this case, the Petitioner remained licensed as a physical therapist by the State of Colorado, but never practiced physical therapy in Colorado.

8. The Petitioner moved to Florida in 2006 and began to inquire as to becoming licensed "by endorsement" as a physical therapist in the state. She eventually filed the application at issue in this proceeding.

9. The Respondent has denied the Petitioner's application for licensure on the grounds that the Petitioner has failed to demonstrate that she has met Florida's minimum education requirements and to demonstrate that the licensure standards in Colorado are the equivalent of those in Florida.

10. The evidence establishes that by operation of Florida Administrative Code Rule 64B17-3.003, the licensure standards between Colorado and Florida are equivalent.

11. The evidence fails to establish that the Petitioner has met Florida's minimum education requirements. There was no credible evidence presented that the Petitioner's German education met the minimum education requirements for licensure as a physical therapist within the State of Florida.

12. There was no evidence presented that would permit any determination or comparison of the quality of the Petitioner's German education and experience with that available from an accredited educational unit within Florida or the United States.

13. The Respondent apparently relies on evaluations performed by credentialing agencies that review materials supplied by applicants and render determinations of educational equivalency.

14. The Petitioner has apparently been unable to have her German education and experience evaluated by any credentialing agency, allegedly because of the nature of available records.

15. The Petitioner acknowledged that no written comparative evaluation of her German education and experience has been completed. None have been supplied to the Respondent, and there was no evidence of any educational credentialing determination offered into the record of the hearing.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

17. The Notice of Intent to Deny states that the Petitioner has failed to demonstrate that she has met Florida's minimum education requirements and to demonstrate that the licensure standards in Colorado are as high as they are in Florida and cites Section 486.081, Florida Statutes (2007), and Florida Administrative Code Rules 64B17-3.003 and 64B16-3.001, as the law applicable to this dispute. Florida Administrative Code Rule 64B16-3.001 does not exist. Review of the

    Respondent's rules indicates that the applicable rule is Florida Administrative Code Rule 64B17-3.001.

18. The Petitioner has the burden of establishing entitlement to the licensure sought in this proceeding by a preponderance of the evidence. See Department of Banking & Finance, Division of Securities & Investor Protection v. Osborne

    Stern & Company, 670 So. 2d 932, 934 (Fla. 1966); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); § 120.57(1)(j), Fla. Stat. (2007).

19. As discussed herein, the Respondent has adopted a rule for determining whether the licensing standards of another state are as high as those in Florida, and, by operation of the rule, the Petitioner has met the burden of establishing that the licensure standards in Colorado are as high as they are in Florida.

20. As for the burden of establishing that the Petitioner has met Florida's minimum education requirements, the burden has not been met.

21. Section 486.081, Florida Statutes (2007), provides that the Respondent "may" license physical therapists without examination (i.e. "by endorsement") and, in relevant part, states as follows:

    486.081 Physical therapist; issuance of license without examination to person

    passing examination of another authorized examining board; fee.--

    
    

    (1) The board may cause a license to be issued through the department without examination to any applicant who presents evidence satisfactory to the board of having passed the American Registry Examination prior to 1971 or an examination in physical therapy before a similar lawfully authorized examining board of another state, the District of Columbia, a territory, or a foreign country, if the standards for licensure in physical therapy in such other state, district, territory, or foreign country are determined by the board to be as high as those of this state, as established by rules adopted pursuant to this chapter. Any person who holds a license pursuant to this section may use the words "physical therapist" or "physiotherapist," or the letters "P.T.," in connection with her or his name or place of business to denote her or his licensure hereunder. (Emphasis supplied)

    
    

22. Florida Administrative Code Rule 64B17-3.003 specifically addresses licensure by endorsement and provides as follows:

    An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written

    examination taken for licensure in such other jurisdiction by applicants meeting Florida’s minimum educational qualifications was through the national physical therapy examination provider certified by the Department. An applicant who has failed to pass the National Physical Therapy Examination for Physical Therapists by or on the fifth attempt, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. (Emphasis supplied)

    
    

23. According to the clear language of the rule, the standard for determining the equivalency of licensure standards is "whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida’s minimum educational qualifications was through the national physical therapy examination provider certified" by the Respondent.

24. The evidence establishes that both Colorado and Florida use the same national physical therapy examination provider, and, accordingly, the Petitioner "may be

    licensed . . . by endorsement" after demonstrating that "she meets the requirements of Rule 64B17-3.001, F.A.C."

25. Florida Administrative Code Rule 64B17-3.001, provides as follows:

    Every physical therapist who applies for licensure by examination shall satisfy and demonstrate to the Board that the applicant:

    
    

    1. Is eighteen years old.

       
       

    2. Possesses good moral character.

    3. Has received a degree in physical therapy from an institution that has been approved for the training of physical therapists by the Commission on Accreditation for Physical Therapy Education (CAPTE), at the time of graduation.

       
       

    4. For foreign graduates, has received a determination that the credentials are equivalent to education required for licensure as a physical therapist in the United States. Educational credentials equivalent to those required for the education and preparation of physical therapists in this country shall be determined by the Foreign Credentialing Commission on Physical Therapy (FCCPT) or any other Board approved credentialing agency that meets at least the following criteria:

       1. Has a comprehensive, standardized orientation and training program for all reviewers who must be experienced and knowledgeable in the area of physical therapy education.

       2. Has an audit and quality assurance or review committee that regularly meets to monitor the evaluation process and to provide random audits of the credentials reviews.

       3. Uses the Federation of State Boards of Physical Therapy (FSBPT) coursework evaluation tool.

       4. Employs full time staff support including an international expert in General Education credential equivalency and analysis.

       5. Has an updated, current, and comprehensive resource document library available for reference.

       6. Is recognized to perform visa screening by the Immigration and Naturalization Service of the federal government.

       7. Uses two independent physical therapists to perform the professional education component of the credentials reviews.

       8. Uses original documentation from the institution with institutional seals and signatures and does not permit notarized copies of transcripts or course descriptions for credentials reviews.

          
          

    5. Has attained and submitted to the Board the following:

       1. A minimum of 75 professional education credits with no deficiencies in the required content sections or areas as delineated in the FSBPT coursework evaluation tool.

       2. A minimum of 60 general education credits with no deficiencies in the required content sections or areas as delineated in the FSBPT coursework evaluation tool.

       3. Until and including December 31, 2006, evidence of successful completion of a Board approved English proficiency examination if English was not the language of instruction as evidenced by a minimum score of 220 on the computer based test or 560 on the paper test version of the Test of English as a Foreign Language (TOEFL) and 4.5 on the test of written English (TWE) and 50 on the test of spoken English (TSE).

       4. Effective January 1, 2007, evidence of successful completion of a Board approved English proficiency examination if English was not the language of instruction as evidenced by a minimum total score of 89 on the TOEFL as well as accompanying minimum scores in the test’s four components of:

          24 in writing; 26 in speaking; 21 in reading comprehension; and 18 in listening comprehension.

       5. A report from the credentialing agency, in which the educational expert or physical therapist evaluator is not affiliated with the institutions or individuals under review, interpreting the foreign credentials in terms of educational equivalency in the United States.

       6. At a minimum, the report shall contain the following information:

          1. A clear and definitive statement as to whether the education is equivalent to a

             CAPTE-accredited physical therapy educational program.

          2. Whether the institution is accredited by any governmental agency and, if so, which agency.

          3. A list of courses in general education and professional education with the United States post-secondary equivalent course indicated.

          4. All opinions contained in the report shall be substantiated by reference to the source materials which form the basis for the opinion. (Emphasis supplied)

          
          

26. Although a literal reading of the rule would suggest that an applicant must comply with all five numbered requirements, a reasonable application of the rule would require that an applicant satisfy items 1 and 2 and satisfy either items 3, 4, or 5, all of which require a demonstration that academic credentials have been obtained.

27. The Petitioner has not sought a variance from, or waiver of, the application of the rule as provided for in Section 120.542, Florida Statutes (2007).

28. The evidence offered at the hearing fails to establish that the Petitioner, a graduate of a foreign school, has received a determination that her educational credentials are equivalent to the education required for licensure as a physical therapist in the United States. The Petitioner testified that she has been unable to obtain such a determination.

29. In the Petitioner's Petition for Hearing and Proposed Recommended Order, the Petitioner asserted that an issue for

    determination in this case is the validity of Florida Administrative Code Rule 64B17-3.003. The Petitioner asserted that the rule "enlarges, modifies or contravenes" the provisions of Section 486.081, Florida Statutes.

30. This proceeding was filed under the provisions of Sections 120.569 and 120.57, Florida Statutes (2007). Provisions for challenging an administrative rule, including filing and notice requirements, as well as hearing deadlines, are set forth at Section 120.56, Florida Statutes (2007).

31. In this case, neither party presented evidence sufficient to permit a determination of whether the cited rule is an invalid exercise of delegated legislative authority. In a rule challenge proceeding, the Petitioner has the burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority as to the objections raised. See § 120.56(3)(a), Fla.

Stat. (2007). Had the issue been properly raised, the Petitioner would not have met the burden; however, a determination of whether the cited rule is invalid is outside the scope of this proceeding, and accordingly, the issue is not further addressed herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy

Practice issue a final order denying the Petitioner's application for licensure.

DONE AND ENTERED this 22nd day of February, 2008, in Tallahassee, Leon County, Florida.

S

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 22nd day of February, 2008.

COPIES FURNISHED:

Richard Linquanti, Esquire Carlton Fields, P.A.

Post Office Box 3239 Tampa, Florida 33601-3239

Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399

Susie K. Love, Executive Director Board of Physical Therapy Practice 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-004046

Orders for Case No: 07-004046