STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-659

)

MARLENE SOLOMON, R.P.T., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on April 12 and 14, and July 18, 1983. The issue for determination was whether the Respondent's Florida license as a physical therapist should be disciplined be cause of the alleged violations of Florida Statutes set out in the Administrative Complaint.

APPEARANCES

For Petitioner: Jerry Frances Carter, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Michael Sigman, Esquire

125 East Jefferson Street Orlando, Florida 32801

BACKGROUND INFORMATION

By Administrative Complaint dated January 20, 1982, and amended on February 2, 1982, the Petitioner has charged Respondent with being guilty of fraud and conduct unbecoming a registrant in the practice of physical therapy, in violation of Sections 486.081(2) and (7), Florida Statutes; and with allowing uncertified and unregistered personnel to apply physical therapy procedures in Respondent's office without her direction, in violation of Sections 486.091(2) and (7), Florida Statutes. In an Election of Rights form executed on February 22, 1982, Respondent disputed the allegations and requested a formal hearing.

At the hearing, Petitioner presented the testimony of Marlene B. Holland, Sue Harrison, Marilyn Roofner and Michael Kuhns, and introduced Petitioner's Exhibits 1 through 4. Respondent submitted her affidavit, presented the testimony of Dr. James C. Johnson, Glenda D. Mean, Marilyn G. Carswell, Minnie Meadows and Sydele Home, and introduced Respondents Composite Exhibit A.

FINDINGS OF FACT

1. Marlene Solomon is the Respondent in this case and at all times pertinent to this hearing was licensed by the State of Florida as a registered physical therapist under License No. PT0001665.

   
   

2. As of the date the hearing commenced, her license issued on September 2, 1975, was in good standing, and there was no derogatory information in her file. Her licence will be current through December 31, 1984.

   
   

3. Marlene B. Holland was employed by Respondent as receptionist-secretary in her Orlando Physical Therapy & Fitness Center (OPTFC) from May 15 to December 21, 1978. She was not a physical therapist. From June until the end of October 1978, she and Ms. Solomon were the only people in the facility, which was open for business from 8:00 a.m. to 5:00 p.m. Monday through Friday. Respondent was not always present when therapy prescribed by a physician was given to a patient. When that was the case, Ms. Holland administered the treatment at the direction of Respondent.

   
   

4. One of these patients to whom Ms. Holland administered treatment was a Dr. Douglas, who was receiving whirlpool treatments for his broken arm. This treatment consisted of heating up tile whirlpool bath, helping him into it, and standing by and talking with him while he was in the pool. At no time did she manipulate his arm or request that he flex it through the range of motion, nor did she apply ultrasound without direction. She had no freedom of choice to decide what treatment was to be given or when. Anything she did was done either by written or oral direction of Respondent whether Respondent was physically present or not.

   
   

5. Another physical therapist, Mr. Rolf Kuhns, contends this constitutes the practice of physical therapy and, if done by a non licensed individual, must be done under the direct supervision of a physical therapist. Mr. Kuhns initially adamantly claimed there were no exceptions to this position but thereafter substantially relaxed his position. In any case, it is quite apparent, though he denies it, that as a direct competitor of Respondent he would benefit by the discipline of her license and the attendant loss of business she would suffer and, in fact, gratuitously provided information about her difficulties to physicians and others who had been or were clients of Respondent at the time.

   
   

6. Marilyn Roofner, a registered physical therapist, works for Respondent from November 1 to December 21, 1978, at OPTFC with Ms. Holland. One of Respondent's patients during November 1978 was a Ms. Marilyn Caswell. During the entire period of time Ms. Roofner worked for Respondent, she saw Ms. Caswell come into the facility on approximately three occasions. On none of these occasions, however, did she give Ms. Caswell any physical therapy treatment.

   
   

7. She did try, however, on one occasion to treat Ms. Caswell. In This particular instance, Ms. Caswell had an appointment for a treatment. Ms. Roofner saw her sitting in Respondent's office talking to her and asked if she were ready for her treatment. Ms. Caswell stated she was not. Therefore, Ms. Roofner made up a hot pack and took it to Respondent's office. When Respondent saw her, she frowned and waved her away. On the other visits Ms. Roofner is aware of, she did not see Ms. Caswell receive any treatment but instead observed her just sit there and talk with Respondent.

8. During the period of her employment, she became concerned about the business practices of Respondent and how they might impact on her own professional standing. She observed appointments in the Respondent's appointment book marked "cancelled" or "no-show," which entries were later erased, and the insurance company would be billed for treatment that was not given. This occurred on November 3, November 6, November 13 and November 20, 1978. She heard the administrative employee, Ms. Holland, discuss this practice with Respondent, who advised her to do what she was told--it was none of her business. She heard Ms. Holland chastised by Respondent for calling Ms. Caswell and asking her to come in for treatments. When she realized that the scope of this practice was larger than she thought, she realized she would have to take steps to protect her own license.

   
   

9. As a result, she resigned from employment with Respondent. Before doing so, she made copies of the appointment book and ledger cards to support what she had found and thereafter wrote a letter to the president of the Florida chapter of the American Physical Therapy Association. As a result of this letter, after investigation by that Association and findings that Respondent had been engaged in unethical billing practices, Respondent was conditionally suspended from the Association for one year. The Respondent met the condition imposed, and the suspension was forestalled.

   
   

10. Respondent was paid $400.00 by Ms. Caswell's insurance company on October 4, 1978, for treatment rendered. She received another $240.00 on October 25, 1978, for additional treatment, and $700.00 on December 22, 1978. Each treatment was billed at $20.00, and billing records show that on several occasions Ms. Caswell allegedly received two treatments in one day. On December 27, 1978, Respondent returned the check for $700.00, indicating there had been a billing error, and thereafter submitted a bill for $320.00 for the period October 22, 1978, Through December 15, 1978.

    
    

11. This latter bill included billings on November 3, 6, 13 and 20, 1978. Comparison of these dates with the Respondent's appointment book for these same dates shows that the appointments on November 3, 13 and 20, 1978, were marked "no-show," meaning the patient, Ms. Caswell, did not show up; and that for November 6, 1978, was cancelled. It is clear, therefore, that even after the correction Respondent billed the insurance company for treatment not rendered.

    
    

12. By affidavit submitted July 29, 1983, Respondent denies both improper billing, as alleged in Count One of the Administrative Complaint, and allowing an unlicensed individual to practice physical therapy unsupervised, as alleged in Count Two. There was extensive evidence on both sides which indicates an unhealthy relationship existing between Respondent and her employees. As a result, the credibility of Ms. Holland and, to a lesser degree, Ms. Roofner, is in question. Discounting this to a substantial degree, there still remains the documentary evidence in the form of four pages from Respondent's appointment book showing missed appointments on the dates set out supra and the billing statements reflecting physical therapy treatments on those days for each which

    $20.00 was charged. On none of the appointments book pages is there a showing of a second or alternate appointment for that day. The fact that the bill on these dates postdates the alleged audit of the account and the return of the prior check to the insurance company makes it unlikely there was any mistake on the part of the Respondent, here. Further, the testimony of Dr. Johnson that a part of treatment can include counselling to a distraught patient is not persuasive here. That may well be proper medical treatment for which a physician, counselor, psychologist or psychiatrist can bill, but by no stretch of the imagination can counselling not related to physical therapy be considered

    a part of billable physical therapy. The very use of the term "physical" in the description of the procedure would exclude such a conclusion. It is clear, therefore, that improper bills were submitted for at least November 3, 6, 13, and 20, 1978.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

14. Respondent is charged in the Administrative Complaint with two violations of subsections of Chapter 486, Florida Statutes, but the complaint fails to refer to any particular year in either the conduct complained of or the statute violated. Further, there is no indication where the conduct complained of took place. This is inartful pleading at its worst, and, had counsel for Respondent moved for appropriate relief, no doubt the motion would have been granted. However, he did not do so, and the evidence introduced by Petitioner, unchallenged by Respondent in these particulars, clarified the situation for the Respondent and all concerned. In any event, complaints in administrative proceedings do not have to be set forth with the exactness required of court pleading; Respondent failed to seek a more definite statement of the allegations prior to or at the hearing; and the record clearly demonstrates she was not misled or hindered in the preparation of her defense. Therefore, there is no basis for technical correction at this point. See Jacker v. School Board of Dade County, 426 So.2d 1149 (Fla. 3d DCA 1983).

    
    

15. In Count One of the Administrative Complaint, Respondent is alleged to have, in the practice of physical therapy, caused to be billed to insurance companies and others invoices for physical therapy treatments not actually provided and, in doing so, to have fraudulently altered billing records, patient records and other records, in violation of Sections 486.091(2) and (7), Florida Statutes. The 1978 Supplement to the 1977 edition of this statute reads:

    
    

    The board may refuse to register any applicant and may suspend or revoke the registration of any registered person:

    * * *

    (2) Who is guilty of fraud in the practice of physical therapy or deceit in obtaining his registration as a physical therapist.

    * * *

    (7) Who is guilty of conduct unbecoming a person registered as a physical therapist or detrimental to the best interest of the public.

    
    

16. At the close of Petitioner's case, Respondent moved to strike certain portions of the Amended Administrative Complaint, i.e., the plural of the word "patients," the word "fraudulently," the words "altered billing records," the words "patient records," and the words "other records" in Count One. Respondent also moved that all words in Count One from and including "been engaged" to and including "Respondent" be stricken, as well as the words from and including "medical personnel" to and including "therapy procedures." They are hereby denied except for the plural of the word "patients," which is hereby stricken.

17. Returning to Count One, the fact that Respondent did submit bills for physical therapy treatments on Ms. Caswell on November 3, 6, 16 and 20, 1878, when the appointment book clearly showed the appointments had been either cancelled or not kept, constitutes a fraudulent act. Whether this fraud is "in the practice of physical therapy" or not requires further consideration. The statute in question was designed to protect the public from abuses and fraudulent practices in the physical therapy setting. This billing practice clearly falls within its purview. Consequently, as modified, this allegation has been sufficiently proven.

    
    

18. In Count Two, The situation is somewhat different. Notwithstanding the testimony of Mr. Kuhns, whose motivation is somewhat suspect, Ms. Holland's conduct for Respondent, while in her employ, was so supervised as to not constitute a violation of the statute. There is no showing of fraud, nor does the employment of nonlicensed personnel constitute conduct unbecoming of a registered physical therapist or detrimental to the best interests of the public under the circumstances.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That Respondent's license as a physical therapist in the State of Florida be suspended for six months.

RECOMMENDED this 14th day of September, 1983, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1983.

COPIES FURNISHED:

Jerry Frances Carter, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael Sigman, Esquire

125 East Jefferson Street Orlando, Florida 32801

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

vs. Case No. 82-659

MARLENE SOLOMON, R.P.T.,

License No. PT 1665

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board hereinafter) pursuant to Section 120.57(1)(b)9., Florida Statutes, on October 9, 1983, in Amelia Island, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled matter. The Petitioner was represented by Joseph W. Lawrence, II, Esquire. The Respondent was represented by Michael Sigman, Esquire. After review of the Recommended Order, the argument of the parties, and after a review of the complete record in this matter, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence in the record to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence in the record to support the Board's conclusions of law.

   
   

3. The hearing officer's recommended penalty of a six (6) month suspension is rejected as being inappropriate under the circumstances.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent, Marlene Solomon, R.P.T., is found guilty of violating Sections 486.091(2) and (7), Florida Statutes, as charged in Count I of the Amended Administrative Complaint.

Respondent is found not guilty of violating Section 486.091(2) and (7), Florida Statutes, as charged in Count II of the Amended Administrative Complaint. The Florida physical therapy license of the Respondent be and is hereby suspended for a period of six (6) months beginning the date of rendition of this Order.

However, this suspension is stayed and Respondent is placed on probation for a period of three (3) years beginning the date of rendition of this Order and she shall make semi-annual appearances before the Board during this probationary period.

This Order becomes effective upon filing.

DONE AND ORDERED this 19th day of October, 1983.

BOARD OF MEDICAL EXAMINERS

Richard J. Feinstein, M.D. Chairman, Board of Medical Examiners

cc: All Counsel of Record Marlene. Solomon, R.P.T.

Docket for Case No: 82-000659

Orders for Case No: 82-000659