The Issue Whether Respondent violated Subsection 486.125(1)(e), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of medicine pursuant to Chapters 20, 456, and 458, Florida Statutes. Mr. Westrope is, and was at all times material to this proceeding, a licensed physical therapy assistant in the State of Florida, having been issued license number PTA1170. Beginning in or about September 2004, D.D. was being provided physical therapy services through Girling Health Care, Incorporated (Girling). Girling contracted with Rehab Action, Incorporated (Rehab) to provide home health physical therapy to patients. Rehab contracted with Mr. Westrope to perform the physical therapy in the patients' homes. In or about September 2004, Mr. Westrope was assigned to provide physical therapy to D.D., who had undergone a complete knee replacement. D.D. had been assessed by Mr. Westrope’s supervising physical therapist, Gaspard de Laaf, on September 29, 2004, prior to Mr. Westrope beginning his physical therapy services on September 30, 2004. Mr. Westrope was required by Rehab to complete a visitation slip at the end of each physical therapy session. Mr. de Laaf had provided instruction to Mr. Westrope on how to complete the form. Mr. Westrope would send the completed form to Mr. de Laaf, who reviewed the form and sent it to Girling for reimbursement. When Mr. Westrope provided physical therapy to D.D., she would lie on her bed and perform therapy exercises, and then move into the kitchen where Mr. Westrope would measure the bend in her knee. When each session was over, Mr. Westrope would complete a visit slip for the treatment, and D.D. signed them to verify that she received the services. D.D. is visually impaired and can only see light. In order to sign the forms, D.D. requested Mr. Westrope to place the forms near the end of the kitchen table so that she could align her arm with the table edge so that her signature would be in a straight line. D.D. always signed her signature as "D.A.D." D.D. prided herself on her independence and did not allow anyone else to sign the visit slips for her. Mr. Westrope provided physical therapy services to D.D. on September 30 and October 1, 5, 6, 8, 12, 15, and 22, 2004. Mr. de Laaf evaluated D.D. and provided physical therapy services to her on October 25, 2004. Mr. Westrope provided services to D.D. on October 28, 2004. Mr. Westrope completed and submitted visit slip documentation for physical therapy treatment of D.D., which he claimed to have provided on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. However, Mr. Westrope did not provide services to D.D. on those dates. On or about November 3, 2004, D.D. contacted Girling complaining that she had not received physical therapy from Mr. Westrope in a while. On or about November 4, 2004, Mr. de Laaf was notified by Girling regarding the complaint it received from D.D. Mr. de Laaf then prohibited Mr. Westrope from seeing any Girling patients after Girling indicated that it did not want Mr. Westrope performing any of its services. Mr. de Laaf then resumed the treatment of D.D. On or about November 5, 2004, Tammy Hain, R.N., and Rob Hudson, O.T., who are supervisors employed by Girling, visited D.D. to verify that she had not been receiving physical therapy from Mr. Westrope on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. D.D. verified that she had not received services on those dates. D.D.'s daughter has been assisting D.D. with her financial transactions for 15 years and is familiar with D.D.'s signature. At the final hearing, D.D.'s daughter reviewed for the first time the visit slips submitted by Mr. Westrope for services to D.D. After reviewing the visit slips, D.D.'s daughter concluded that the signatures on the visit slips for October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004, were not written by D.D. D.D.'s daughter verified that D.D. always uses her middle initial “A” when signing her signature. The signatures on the disputed dates do not contain D.D.'s middle initial and are different in appearance from the signatures on the visit slips on which Mr. Westrope documented services that he did provide to D.D. On five occasions during the time that Mr. Westrope was providing services to D.D., Robert Hudson also provided occupational therapy services to D.D. on five occasions. At the end of the therapy sessions with Mr. Hudson, D.D. signed the visit slips “D.A.D.” The parties stipulated that if Mr. Westrope did not provide the services to D.D. on the dates he indicated on the visit slips, then Mr. Westrope violated the rules of the Department and Subsection 486.125(1)(e), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Michael G. Westrope, P.T.A., violated Subsection 486.125(1)(e), Florida Statutes, and imposing a penalty of a $2,000 fine and a six-month suspension followed by one year of probation with the terms to be set by the Department at the conclusion of the suspension period and requiring Respondent to complete five hours of Continuing Education in physical therapy medical records documentation. DONE AND ENTERED this 7th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of April, 2006.
The Issue Whether Tina Pate violated Subsection 486.125(1)(b), Florida Statutes, by committing deceit in obtaining a license as a physical therapist, and, if so, what penalty should be imposed; and whether Tina Pate violated Subsection 455.624(1)(w), Florida Statutes, for failing to report to the Board of Physical Therapy her conviction of aggravated child abuse, and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony of Pate and the evidence submitted, the following findings of fact are made: At all times material, Pate held a license as a Physical Therapist in the State of Florida. The Department of Health, through the Board of Physical Therapy Practice, is the state agency that licenses and has regulatory jurisdiction of physical therapists. As authorized by Florida Statutes, AHCA performs investigative and prosecutorial services for the Department of Health. Pate pled nolo contendere to a charge of aggravated child abuse in 1979. Aggravated child abuse is a felony (AHCA Exhibit 2). Pate applied for a physical therapy license on August 1, 1996. The license application contained, among other things, the following question: "12. Have you ever been convicted or found guilty of a felony, regardless of adjudication? (A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges)." Pate answered "No" to this question. Pate testified that she was advised and that she believed that having successfully completed three years of probation that her record would be expunged. She further testified that because she found Question 12 and another question on the application regarding criminal convictions confusing, she sought legal counsel prior to answering the questions and answered the question as counseled. In this particular factual situation, based on the nature of the felony, the text of the question, the counsel she received, and her mistaken belief that the record of criminal conviction had been expunged, Pate's incorrect answer to Question 12 was not deceitful. Late in 1998, Pate discovered, as a result of an investigation by a prospective employer, that the 1979 nolo contendere plea was still a matter of public record. On February 15, 1999, Pate applied to AHCA for an exemption hearing. Subsection 400.215(4)(b), Florida Statutes, states: (b) As provided in s. 435.07 the appropriate regulatory board within the Department of Health, or that department itself when there is no board, may grant an exemption from disqualification to an employee or prospective employee who is subject to this section and who has received a professional license or certification from the Department of Health or a regulatory board within that department. Subsection 435.07(1), Florida Statutes, states: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: (a) Felonies committed more than 3 years prior to the date of disqualification; In response to Pate's request for exemption hearing, Mr. Joe Baker, Acting Bureau Chief, Heath Care Practitioner Regulation, by letter dated February 24, 1999, granted her request stating, "an exemption from disqualification for the above disqualifying offense(s) is granted." Subsection 456.072(1)(w), Florida Statutes, states: The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: * * * (w) Failing to report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. Convictions, findings, adjudications, and pleas entered into prior to the enactment of this paragraph must be reported in writing to the board, or department if there is no board, on or before October 1, 1999. While she was preparing her request for exemption hearing, Pate had telephone conversations at the Board of Health with an individual she identified as Kay Howerton, who Pate believed had reviewed her request for exemption hearing. Pate's request for exemption hearing contains specific reference to her plea of nolo contendere to the November 3, 1978, Pasco County, Florida, charge of aggravated child abuse. It is not unreasonable for a lay person, having made an application to AHCA for an exemption from licensure disqualification for having pled nolo contendere to aggravated child abuse, and having received a letter from the Board of Health granting her the exemption, to believe that she had reported her plea of nolo contendere to the Board in writing as required by Subsection 456.072(1)(w), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Physical Therapy Practice, find Tina Pate not guilty of having violated Subsections 486.12(1)(b) and 455.624(1)(w), Florida Statutes, and dismiss the Administrative Complaint filed against her. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 9th day of March, 2001. COPIES FURNISHED: Herbert Allen, Jr., Esquire 2000 Highway A1A, 2nd Floor Indian Harbour Beach, Florida 32937-3525 Mary Denise O'Brien, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times relevant hereto Respondent was licensed as a physical therapist assistant in Florida. He has held a physical therapist assistant license for approximately 18 years and worked approximately five and one-half years as an orthotec. In June 1985, Respondent was employed by Southeast Rehabilitation Services (Southeast) as a physical therapist assistant. On or about June 3, 1985, a patient had been transferred to Southeast with one knee immobilized. The physician's order transferring the patient to Southeast directed the immobilizer be removed. When Respondent provided treatment to the patient, he removed the immobilizer without first having received written instructions from the physical therapist to do so. On or about June 11, 1985, Respondent provided treatment to a patient at Southeast which consisted of strengthening exercises using small weights, when the physical therapist orders called only for range of motion exercises without weights. Respondent had been working at Southeast only a short while and had been taken on rounds by another physical therapist assistant. When Respondent gave treatment to this patient on his own, he couldn't locate the patient's chart and relied on his memory to provide treatment. He thought he remembered the other physical assistant gave this patient strengthening exercise, but this was incorrect. Respondent readily acknowledged committing the violations alleged, but contended the June 11 incident was a simple mistake and that he had followed physician's orders at other physical therapy centers at which he had worked, without waiting for written orders from the physical therapist.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and was at all times material hereto, a physician authorized to practice medicine in the State of Florida under license number ME 0031424. Respondent has an office located at S.W. 8th Street and S.W. 34th Avenue in Miami, Florida. Delores Prado has worked in Respondent's office for the past ten years. Her duties are primarily administrative in nature. On occasion, however, Prado assists Respondent by administering physical therapy to Respondent's patients. She does so, though, only at the specific directive of Respondent, who provides her with detailed instructions regarding the precise treatment each patient is to receive. Prado never treats a patient when Respondent is not on the premises and immediately available if needed. During her first year of employment with Respondent, Prado received training in the practice of physical therapy. Prado is not now, nor was she at any time material hereto, licensed or certified to render any health care services in the State of Florida, including, but not limited to, those that licensed or certified physicians, registered nurses, practical nurses, physical therapists, and physical therapist assistants are authorized to perform. At all times material hereto, Respondent knew or should have of known of Prado's unlicensed status. On September 2, 1988, Thomas Daniels, an Investigative Specialist II with the Department, visited Respondent's office to investigate a complaint that Respondent was permitting unlicensed individuals to administer physical therapy to his patients. Upon his arrival at the office, Daniels was greeted by a young woman seated behind the reception desk. During the course of his conversation with the woman, Daniels inquired as to whether she had ever administered physical therapy to any of Respondent's patients. She replied in the negative. Daniels then showed her a copy of a letter, addressed to the U.S. Security Insurance Company and bearing her signature, which reflected the contrary. Confronted with this letter, the woman conceded that she and her fellow employees performed physical therapy on Respondent's patients. Respondent, who was nearby in a position where he could overhear the conversation, did not interject and deny the statement that his employee had made to Daniels. Later during his September 2, 1988, visit, Daniels met with Respondent and was shown the office's physical therapy area. He then left. Daniels returned to Respondent's office on September 6, 1988. On this visit, he was greeted by Prado. He asked her if he could speak with Respondent. Prado replied that Respondent was out of the office and she did not expect him back until later that afternoon. Daniels then asked Prado if he could take photographs of the physical therapy area. Prado indicated that she had no objection to him doing so. Daniel thereupon went into the physical therapy area where he observed one of Respondent's patients seated in a chair with "hot packs" on her neck and shoulders. The patient was in the midst of receiving physical therapy administered by Prado pursuant to the specific directive of Respondent. Notwithstanding what Prado had told Daniels, Respondent was in fact on the premises, albeit outside of the physical therapy area and beyond Daniels' view, and was immediately available if needed. Daniels took photographs of the physical therapy area and then concluded his visit. During the ten minutes that Daniels was in Respondent's office on September 6, 1988, he spoke to Prado and no one else. Their conversation was in English and Prado appeared to have little difficulty understanding what Daniels was saying to her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order finding that Respondent did not commit the offenses charged and dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of August, 1990. STUART M. LERNER 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 17th day of August, 1990.
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided 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 passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country 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. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read 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 [sic] 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 [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
The 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).
Findings Of Fact 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. 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. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. 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. 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. 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. 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. 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.
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 bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. 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 =================================================================
