STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL EVALUATION )

CONSULTANTS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-0464

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHYSICAL ) THERAPISTS, )

)

Respondents. )

)

RECOMMENDED ORDER

A final hearing in this case was held pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 27, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Cecil E. Howard, Esquire

320 Williams Street Tallahassee, Florida 32303

For Respondent: Michael A. Mone', Esquire

Assistant Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF ISSUES

The ultimate issue is whether International Evaluation Consultants, Inc. (International), is qualified under Rule 21MM-3.011(3), Florida Administrative Code, to evaluate the credentials of foreign graduates to determine that they have education and training which is the equivalent of a bachelor's degree in physical therapy in the United States.

The factual issue is whether Roland H. Gaines, as the Registrar of Florida Agricultural and Mechanical University, (Florida A&M University) possesses the requisite skills to evaluate the credentials of foreign graduates to determine whether their education and training is the equivalent of a bachelor's degree in physical therapy in the United States.

The basis for determining the case is whether the Board through Rule 21MM- 3.001(3), Florida Administrative Code, can limit the persons evaluating the credentials of foreign graduates to three named corporations and the offices of the registrar of educational institutions in the United States, approved for the training of physical therapists by the American Physical Therapy Association.

PRELIMINARY STATEMENT

The Petitioner applied to the Respondent for certification as a credentialing agency with the Board of Physical Therapists (the Board). The Board issued an order denying the Petitioner's request to be identified as a credentialing agency pursuant to Section 486.031, Florida Statutes, and filed a copy of this order with the Clerk of the Department of Professional Regulation on December 12, 1992. This order cites Rule 21MM-3.001(3), Florida Administrative Code, as the reason for denying Petitioner's request. The Petitioner filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, on December 23, 1992. This request was forwarded by the Department to the Division of Administrative Hearings on January 28, 1993.

The case was noticed for hearing, and an order entered on February 25, 1993, requiring the Petitioner to advise the hearing officer if his petition was a rule challenge. On March 9, 1993, the Respondent filed a Motion to Relinquish Jurisdiction on the basis that there were no factual issues in dispute, and on the basis that the Petitioner had failed to comply with the Hearing Officer's Order of February 5, 1993. On March 11, 1993, the Petitioner filed an amended petition for an administrative hearing citing Section 120.57(1), Florida Statutes, as the authority for the requested hearing, and alleging that the Petitioner is the Registrar of Florida A&M University and meets the criteria of 21MM-3.001(3), Florida Administrative Code, for evaluating the credentials of foreign graduates. On March 19, 1993, the hearing officer denied the Respondent's motion to relinquish jurisdiction upon a determination that factual issues had been raised.

The hearing in this case was held, after one continuance, on September 27, 1993. Following the hearing, both parties submitted proposed findings of fact which were read and considered. The Appendix to this order states which of these proposed findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case.

   
   

2. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association.

   
   

3. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination.

   
   

4. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy.

   
   

5. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the

   university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity.

   
   

6. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect.

   
   

7. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint.

   
   

8. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students.

   
   

9. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

11. Petitioner, who is seeking to establish its qualifications for designation as an evaluator of the educational and training credentials of foreign graduates, has the burden of establishing its qualifications under Rule 21MM-3.001(3), Florida Administrative Code. See Florida Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

12. Rule 21MM-3.001, Florida Administrative Code, provides as follows:

    
    

    Every applicant for examination for licensure as a physical therapist shall demonstrate to the Board that he satisfies the following qualifications:

    1. That he is eighteen years old.

    2. That he possesses a good moral character.

    3. That he has received a bachelor's degree or its equivalent, in physical therapy, which course of study has been approved for the training of physical therapists by the American Physical Therapy Association, the appropriate accrediting agency recognized by the Council on Postsecondary Accreditation, at the time of his graduation; and if a foreign graduate, determination that his credentials as being deemed equivalent to a bachelors degree in physical therapy in the United States is

       required by one of the following appropriate agencies identified by the Board:

       1. International Education Research Foundations, Inc., Credentials Evaluation Service, P. O. Box 66940, Los Angeles, California 90066;

       2. International Consultants, Inc., of Delaware, 914 Pickett Lane, Newark, Delaware 19711;

       3. International Credentialing Associates, Inc., 150 Second Avenue, North,

          Suite 1600, St. Petersburg, Florida 33701; or

       4. The registrar of any United States education institution approved for training of physical therapists by the American Physical Therapy Association.

          
          

          Specific Authority 486.025(1), 486.031(3),

          F.S. Law Implemented 486.031, F.S. History - New 8-6-84, Amended 6-2-85,

          Formerly 21M-7.20, Amended 5-18-86, Formerly 21M-7.020.

          
          

13. The Board's position in this case is simple. The Board asserts that it has designated only three evaluators in addition to the offices of the registrar of U.S. educational institutions maintaining approved schools of physical therapy in the United States. The record in this case shows the Board in designating these three corporate evaluators did not explicate the basis for its decision to approve such evaluators in such a manner that would permit others to determine whether they meet the Board's criteria for an evaluator. Neither has the Board adopted by rule any criteria for the designation of evaluators.

    
    

14. The Board cannot arbitrarily limit the number of evaluators by failing to adopt a method for designation with specific criteria to judge the qualifications of applicants. Because the Board has elected to recognize three evaluators, but has not adopted rules providing qualifications for evaluators, the rules which the Board has adopted must be interpreted and applied in such a manner as to establish a method and standard for the assessment of other applicants.

    
    

15. If the Board's rules were not construed in this manner, the scheme of regulation adopted by the Board would fail because it confers a special status upon a narrow group of individuals without establishing a method and standard for others to qualify for the same benefits. Rule 21MM-3,001(3), Florida Administrative Code, must be construed more generally than urged by the Board in order to set forth objective criteria for others to obtain designation as evaluators of the credentials of foreign graduates.

    
    

16. Construed in this manner, the term "The registrar of any United States education institution approved for training of physical therapists by the American Physical Therapy Association" must be construed to define a specific type of experience, as opposed to an office.

17. The facts in this case reveal that the Petitioner, International, is the alter ego of Roland H. Gaines, who is the sole stockholder and officer of the Petitioner. Mr. Gaines has served in various capacities within the office of the registrar of the Florida A&M University and is now the registrar of the University.

    
    

18. The Petitioner, through its sole stockholder, officer and employee, has the requisite skill and experience to appropriately evaluate the educational credentials of foreign graduates. Mr. Gaines has served for many years as the assistant deputy registrar, assistant registrar as well as registrar of an educational institution having an approved program for training physical therapists approved by the American Physical Therapy Association. Petitioner has this experience and expertise by virtue of his experience in the Office of the Registrar of Florida A&M University.

    
    

19. In order to avoid the equal protection problems arising from the Board's designation of three specific corporate evaluators without establishing a method for the designation of others, paragraph (3)(d) must be read to establish criteria for additional designees.

    
    

20. Applying these criteria to the Petitioner, the Petitioner's sole officer, employee and stockholder possesses the requisite experience and the Petitioner should be designated.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy.

DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464

The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why:

Petitioner's Findings:

1 through 3. Adopted in paragraph 1.

1. Adopted in paragraph 2.

2. Adopted in paragraph 3.

3. Adopted in paragraph 4.

4. Adopted in paragraph 5.

5. Subsumed in paragraphs 3 and 5.

6. Adopted in paragraph 6.

10.-13. Subsumed in paragraph 5.

1. Rejected as hearsay.

2. Adopted as paragraph 7.

Respondent's Findings:

1. Adopted as paragraph 8.

2. Adopted as paragraph 9.

4.-10 Preliminary Statement.

1. Adopted as paragraph 11.

2. Adopted as paragraph 1.

3. Conclusion of Law.-

COPIES FURNISHED:

Cecil E. Howard, Esquire

320 Williams Street Tallahassee, Florida 32303

Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050

Jack McRay

Acting General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dr. Marm Harris, Executive Director Board of Physical Therapy

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0789

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 93-000464

Orders for Case No: 93-000464