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."
Findings Of Fact 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. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. 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. 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. 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. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. 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. 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. 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.
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. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. 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
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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. /
The Issue The issue presented for decision herein is whether or not Respondent's license as a Physical Therapist should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 486, Florida Statutes, as is more particularly set forth hereinafter and which is contained in a Second Amended Administrative Complaint filed December 12, 1986.
Findings Of Fact Respondent, Steven R. Bernstein, is and at all times material, was a licensed physical therapist having been issued license number PT 0002304. (Stipulation) Respondent maintained two separate offices in Fort Lauderdale: 4580 North State Road 7, Suite K, and 2951 Northwest 49th Avenue, Suite 308. (Stipulation) From March 1981 to March 1983, Respondent employed Kathy Schillace as an aide at both of his offices. At no time was Schillace licensed as a physical therapist or a physical therapist assistant. (Stipulation) Schillace's duties included giving treatments to patients such as electrical stimulation, range of motion exercises and ultrasound. To perform these duties, Schillace reviewed patient charts and determined what procedures were needed based on notations which had been recorded by Respondent or one of his licensed physical therapists employed in one of the two offices. Schillace received on the job training from Respondent and Susan Trider, a licensed physical therapist, on how to operate the equipment. Susan Trider supervised Schillace during most of her employment with Respondent. Susan Trider worked for Respondent from November 16, 1981 thru June 21, 1982. Trider was licensed in Florida by endorsement on June 3, 1982. Trider was licensed in Massachusetts in April 1980. (Petitioner's Exhibit 4) From April 1982 to May 1983, Respondent employed Patricia Sears as an aide at both of his offices. At no time was Sears licensed as a physical therapist or a physical therapist assistant. (Stipulation) Sears routinely performed treatments on patients with electrical stimulation, range of motion and ultrasound exercises. Although Sears felt that she did not receive adequate training to do the treatments she performed for patients, it is found that Sears received adequate training and there were ample licensed supervisory personnel on hand to answer any inquires or provide the needed assistance. As example, it is alleged that based on the inadequate training and lack of supervision that Sears received, she burned a patient with the electrical stimulation machine. Upon review of the testimony concerning that incident, it is found that Sears was working under the supervision of an employee of Respondent, Paula Allia, a licensed physical therapist. (Petitioner's Exhibit 1, pages 12, lines 21-25; page 13 lines 1-4). Respondent had a policy of requiring licensed physical therapists to be on the premises at all times while aides were administering treatment to patients. The training included reviewing contra-indications, the indications, what procedures the equipment was capable of doing, reviewing the operating manuals and explaining the various equipment including hands-on training by licensed personnel. (TR 76-77) Prior to administering any procedures to patients, the aides were given a training exam and they had to demonstrate their abilities by passing the exam and by providing treatment to the licensed personnel. Respondent endeavors to insure that the aides were adequately trained by duplicating the training program that he received while in school to become licensed. (TR 77, lines 23-25) After they were trained, the typical case would be that the aides would only perform procedures diagnosed by a licensed physical therapist. While performing the procedures, licensed therapists were on the premises throughout the period during which the procedures were being administered. (TR 78-79) The procedures that were performed by the aides were procedures ordered by private physicians and all patients of Respondent's were referred from private physicians. Respondent constantly checked the administration of procedures by licensed personnel. (Testimony of Fran Wade, TR 97-98. Testimony of Susan Trider, TR 104) During times material herein, the procedures that Respondent's aides performed were the typical procedures engaged in by aides at other hospitals and private physical therapists in South Florida. (Testimony of Todd Williams, (TR 116-117) Respondent's offices were small and it was possible to hear communications between the patients, aides and the licensed physical therapist constantly monitored the treatment modalities administered by the aides. (Testimony of Respondent, R 92) In the opinion of Paul Hughes, an expert physical therapist, a physical therapist actively involved in the treatment or who is in the immediate area to provide supervision to an aide, is engaged in an acceptable practice in Florida. (TR 39) The testimony of other licensed physical therapists herein support Respondent's position that the treatment modalities that Respondent allowed his aides to administer were the type modalities which were considered acceptable by the local community. (Testimony of Diane Siweck, Sue Chestnut, Todd Williams and Fran Wade).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 29th day of June 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of June 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Hubert, Esquire Paragon Center Suite 512 2400 East Commercial Boulevard Fort Lauderdale, Florida 33308 Dorothy Faircloth, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings T. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 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 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 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
The Issue Whether the Petitioner is entitled to reimbursement for medical treatments received by his wife for 4 manipulation treatments received in 1983?
Findings Of Fact At all times pertinent hereto, the Petitioner was an insured employee under the State of Florida Employees' Group Health Insurance Plan, as provided in Section 110.123, Florida Statutes. Nora Gomez, the Petitioner's wife, is entitled to participate in the Plan as an eligible dependent. Mrs. Gomez first visited David L. Hartz, a chiropractic physician on August 2, 1983. Dr. Hartz's office is located at 1610 West Plaza Drive, Tallahassee, Florida. Dr. Hartz treated Mrs. Gomez primarily for upper back and neck pain. Between August 2, 1983, and December 14, 1983, Dr. Hartz treated Mrs. Gomez 33 times. Initially, Mrs. Gomez received chiropractic manipulations 3 times per week. Visits were subsequently reduced to 2 times a week and from November 1, 1983, until December 14, 1983, when treatments stopped, her treatments were reduced to once a week. Twenty-nine of the 33 visits received by Mrs. Gomez have been paid by the Respondent. The Respondent is not seeking to be reimbursed for payments made to the Petitioner in excess of 26. The Respondent has refused to pay for 4 of the visits. The Petitioner was charged $18.00 per visit for Mrs. Gomez's treatments. The Respondent has refused to pay the Petitioner a total of $72.00 (4 visits x $18.00). Mrs. Gomez received her 26th treatment on November 1, 1983. Mrs. Gomez's condition at that time was, according to Dr. Hartz, as follows: I show that she had improved considerably over her initial findings but she still had some persistent pain in her neck and upper back and some inflammation, some nerve roots in her neck and some persistent muscle weakness. Deposition testimony of Dr. Hartz, page 15, lines 18-21. Dr. Hartz also indicated that he believed that Mrs. Gomez "could still improve some past that point." Deposition testimony of Dr. Hartz, page 11, lines 12-13. Based upon Dr. Hartz's testimony, Mrs. Gomez's problem was of a type which could be eventually treated on a "periodic supportive type treatment, on a periodic nature." Dr. Hartz was trying to treat Mrs. Gomez's problem, however, during 1983 to a point where she could receive such treatment. She did not, however, continue the treatments long enough to reach that point because of the Respondent's position that only 26 treatments would be reimbursed by the Petitioner's insurance. The Respondent reimburses for rehabilitative therapy but not for maintenance therapy under the State Plan. The Respondent determined that Mrs. Gomez's treatments after November 1, 1983 (her 26th visit) were for maintenance and not rehabilitative therapy because the Respondent determined that her condition stabilized. Therefore, the Respondent refused to make further payments. Dr. Hartz did indicate that Mrs. Gomez reached a point where she had persistent pain that would feel better for a while and then would return, and therefore, he "either had a choice to extend her treatment and let her hurt or treat her and keep her feeling as good as possible." This statement and the rest of Dr. Hartz's testimony is not sufficient to conclude, however, that Mrs. Gomez stabilized as of November 1, 1983, and therefore was receiving maintenance treatment only after that date. Dr. Hartz did not, however, based upon all his testimony, believe that Mrs. Gomez had reached a point during her treatment in 1983 where her treatment was in the nature of maintenance only. Dr. Hartz was still treating Mrs. Gomez through her last visit in 1983 in an effort to correct her condition sufficiently for her to receive only maintenance treatments. The 4 visits in 1983 for which reimbursement has not been made, were part of Dr. Hartz's effort to get Mrs. Gomez to a point where she would only need maintenance type treatment. The visits were in the nature of rehabilitative therapy, for which the Petitioner is entitled to reimbursement.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent reimburse the Petitioner $72.00 for the 1983 treatments received by the Petitioner's wife for which reimbursement has been refused. DONE AND RECOMMENDED this 3rd day of December, 1986, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2595 The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." Paragraph Number of Petitioner's Proposed Findings of Fact: Accepted in RO 1-2. Accepted in RO 3-4. Accepted in RO 5. Accepted in RO 6. Accepted in RO 6-7. Accepted in RO 7. Accepted in RO 9-10. Accepted in RO 11 and 15. The quotation of Dr. Hartz's testimony contained in the last sentence of this proposed findings of fact is taken slightly out of context. See RO 15. Accepted in RO 14. This proposed finding of fact is rejected as contrary to the weight of the evidence. See RO 15-16. COPIES FURNISHED: Michael J. Gomez 2404 Harbor Drive Tallahassee, Florida 32303 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gilda Lambert, Secretary 435 Carlton Building Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent: (a) was convicted of a crime which directly relates to the practice of physical therapy; (b) failed to timely report a criminal conviction to the Board of Physical Therapy Practice; and (c) was terminated from the Medicaid program, as Petitioner has alleged; and, if one or more of these allegations are established, whether the Board should impose discipline on Respondent's physical therapy license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Marly Delis Cueto ("Cueto"), P.T., was licensed as a physical therapist in the state of Florida. Petitioner Department of Health ("Department") has regulatory jurisdiction over licensed physical therapists such as Cueto. In particular, the Department is authorized to file and prosecute an administrative complaint against a physical therapist, as it has done in this instance, when a panel of the Board of Physical Therapy Practice ("Board") has found that probable cause exists to suspect that the therapist has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged Cueto with three such offenses, namely, being convicted of a crime which directly relates to the practice of physical therapy; failing to report this conviction to the Board; and being terminated from the state Medicaid program. It is undisputed that, on November 5, 2008, in a case styled State of Florida v. Cueto, No. 08-16209CF10A, the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, accepted Cueto's plea of nolo contendere to the single count of grand theft (a third-degree felony) with which she had been charged; withheld adjudication of guilt; and sentenced her to a term of two years' probation with special conditions. The conditions were that Cueto pay the Agency for Health Care Administration ("AHCA") $28,000 as restitution to the Medicaid program, from which she had stolen funds; and that she relinquish her Medicare and Medicaid provider numbers while on probation. Cueto did not explain the reasons for, and circumstances surrounding, her plea of nolo contendere. There is, at bottom, no persuasive evidence in the record upon which to base any findings of an exculpatory nature concerning the underlying criminal charge for which Cueto was sentenced. Where, as here, there is insufficient proof of objectively reasonable grounds for entering a plea of no contest, which are consistent with innocence, the undersigned presumes that the licensee entered the plea because of a guilty conscience or in surrender to overwhelming odds of conviction. Thus, it is determined that Cueto's plea of nolo contendere constituted a conviction. The conduct which gave rise to Cueto's conviction is relevant only for the limited purpose of determining whether the crime directly relates to the practice of physical therapy. In this regard, the undersigned finds that during the period from January 1, 2007 to April 22, 2008, Cueto——who, as a licensed physical therapist, was an enrolled Medicaid provider——knowingly and intentionally submitted multiple claims to the Florida Medicaid program for physical therapy services that she had not actually rendered, on which false claims she was paid at least $28,000 to which she was not entitled. It is determined that Cueto was convicted of a crime which directly relates to the practice of physical therapy. Cueto did not report to the Board that fact that she had pleaded nolo contendere to a crime, as she was legally required to do within 30 days after entering the plea. On September 30, 2009, AHCA entered a Final Order terminating Cueto from participation as a provider in the Florida Medicaid program. AHCA imposed this sanction against Cueto pursuant to Florida Administrative Code Rule 59G-9.070(8) (2008)——as it was authorized to do under section 409.913(13), Florida Statutes (2009)——because she had been convicted of grand theft on November 5, 2008. As of the final hearing in this case, Cueto had not been reenrolled as a Medicaid provider.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order finding Marly Delis Cueto guilty of the offense described in section 486.125(1)(c), Florida Statutes, i.e., being convicted of a crime that directly relates to the practice of physical therapy; guilty of the offense defined in section 456.072(1)(x), namely failing to timely report a criminal conviction to the Board; and guilty of the offense defined in section 486.125(1)(k), in consequence of having been terminated from the Medicaid program, which latter constitutes a disciplinable offense under section 456.072(1)(kk). It is further RECOMMENDED that the Board impose an administrative fine of $14,000 and suspend Cueto's physical therapy license for two years, to be followed by two years of probation on such reasonable terms and conditions as the Board establishes, which may include the requirement that Cueto pay in full the $28,000 she has been ordered to remit to AHCA as restitution of the stolen funds. DONE AND ENTERED this 19th day of July, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 19th day of July, 2011.
