The Issue The issue posed for decision herein is whether or not the Petitioner meets the educational requirements for entitlement to licensure as a psychologist. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and consideration of the Respondent's proposed memorandum, I hereby make the following relevant:
Findings Of Fact Petitioner made application to Respondent to obtain a psychology license by exception pursuant to the provisions of Section 1 of Chapter 81-235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) At Petitioner's request, Respondent (herein sometimes referred to as the Board of Psychological Examiners or Board) reconsidered his application. It was reaffirmed that his doctoral degree was not from a program primarily psychological in nature because the program did not include at least one course in biological bases of behavior, cognitive-affective bases of behavior, individual behavior, or methodology for the application of psychological knowledge as required by sub-paragraphs (a), (b), (4), and (f), of subsection (2) of Rule 21U-11.05, Florida Administrative Code. (Joint Exhibit #1) Respondent presented the testimony of board member Edward Murray, Ph.D., who was received as an expert in these proceedings in the subject matter of psychology. In order to receive a license in Florida, an applicant, pursuant to Chapter 490, Florida Statutes, must receive a degree from a program primarily psychological in nature. The Board, in carrying out the statutory requirements, promulgated Rule 21U-11.05 to determine whether or not a program was primarily psychological in nature. In so doing, the Board has set forth a requirement that a full course be devoted entirely to the content of the following areas: (a) biological bases of behavior; (b) cognitive-affective bases of behavior; (c) social bases of behavior; (d) individual differences; (e) statistics; and (f) methodology and application of psychological knowledge. (TR-49) Without reciting the Petitioner's testimony, in hoc verba, it suffices to say that the Petitioner has taken several courses which touch upon some of the areas required in the above-referred rule (21U-11.05, Florida Administrative Code). However, Petitioner failed to establish that he had taken a class which was primarily in the "biological bases of behavior" as was required. Additionally, Petitioner failed to establish that he had taken a course which primarily dealt with the cognitive bases of behavior which was required in order to satisfy the requirements of subsection (2)(b) of Rule 21U-11.05, Florida Administrative Code. Further, Petitioner, while having taken several sociology courses, failed to satisfy the requirement of having taken a course which dealt primarily with individual behavior. Finally, Petitioner failed to satisfy the requirement of establishing that he had taken a course to satisfy the requirement of research methodology for the application of psychological knowledge. The Board requires one individual course in each specific area set forth in Rule 21U-11.05 and does not permit an applicant to piece together parts of several courses to satisfy the requirements. (Testimony of Dr. Murray, TR 51-54) Respondent's Position Respondent graduated from the University of Illinois with a Ph.D. in Social Psychology. Respondent's position is that, based on the numerous courses that he has taken, both graduate and post-graduate, including his years of experience in the counseling and advisory areas, he more than satisfies the requirements of Rule 21U-11.05, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a psychologist by exception be DENIED. RECOMMENDED this 29th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 29th day of July, 1983.
The Issue Whether respondent committed the acts alleged in paragraphs 3-7 of the Administrative Complaint and, if so, whether such acts constitute violations of Subsections 231.28(1)(c) and (f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code.
Findings Of Fact The respondent holds Florida Teaching Certificate No. 259659 covering the areas of biology and science. At all times pertinent hereto, the respondent was employed as a science teacher at Franklin Junior High School in the Hillsborough County School District. In September, 1986, the Tampa Police Department received information from the principal of Franklin Junior High School and the resource officer that two teachers at the school might be involved in the use of cocaine or some other type of drug. Detective Cindy Stanbro was assigned to investigate the allegation. Detective Stanbro worked in an undercover capacity as a student intern teacher at Franklin Junior High School. Detective Stanbro was placed in the classroom of science teacher Keith Layton, who was aware of her true identity. Detective Stanbro initially reported to Franklin Junior High School on Friday, September 19, 1986. On the Friday that she reported to Franklin Junior High School, she was able to meet the respondent and Michael Behl, the two individuals who were the subjects of the investigation. Before the end of the school day, Detective Stanbro invited the respondent to go out for drinks with a group of teachers. The respondent was unable to go, but he told Detective Stanbro he would take a rain check. On the following Monday, September 22, 1986, at about 1:20 p.m., Detective Stanbro went to respondent's classroom and asked him if he'd like to go to Casa Gallardo to have a drink after school. Respondent stated that he had come to work with somebody else, so he would need a ride home. Detective Stanbro told him that she could take him home, and respondent accepted her invitation. Detective Stanbro and the respondent left the school at about 4:30 p.m. in Detective Stanbro's automobile. After stopping at a music store so that respondent could pick up some cassette tapes, respondent and Detective Stanbro went to Casa Gallardo, arriving at about 4:50 p.m. No one else joined them at the restaurant; however, backup surveillance units were at the restaurant observing Detective Stanbro and respondent. After ordering drinks and engaging in general conversation about the school and why Detective Stanbro wanted to be a teacher, Detective Stanbro brought up the subject of drugs. She asked respondent if he liked to "get high." Respondent said that he did. He said that he liked to smoke marijuana and snort cocaine. Respondent told Detective Stanbro that he had erected a partition in the back of his classroom which allowed him to look out and see his class but did not allow them to observe him. Respondent stated that he had put the partition up so that he could snort cocaine in the back of the room without the students seeing him. Respondent said that he used cocaine during fifth or sixth period because he would be mentally exhausted by the end of the day and he needed something as a "pickup." He stated he used cocaine because he didn't have a coffee maker in his classroom. During the conversation the respondent and Detective Stanbro also discussed prices paid for cocaine. Respondent told Detective Stanbro that he paid $50 for a half gram of cocaine. Detective Stanbro, who acted as if she used cocaine all the time, stated that the price was too high and told respondent that she knew a Colombian dealer from whom she could buy cocaine for $60 a gram. Respondent told Detective Stanbro that when his coke ran out, he would get Detective Stanbro to buy cocaine for him. Detective Stanbro and respondent were not together at the restaurant the entire time, since respondent went to the restroom at some point during the evening. Sergeant Cuesta, who was part of the surveillance unit, happened to be in the restroom when respondent entered. Sergeant Cuesta left the restroom before respondent. Detective Stanbro and the respondent left the restaurant at approximately 6:45 p.m. As they were getting ready to leave the restaurant parking lot, Detective Stanbro asked respondent if he had any cocaine on him. The respondent indicated that he did and produced a small smoke-colored glass vial. Respondent wanted her to snort some then, but Detective Stanbro said she couldn't because she had to go to dance class and she didn't want to be high on cocaine while dancing. She asked him if he would give her some so that she could have it later. She gave him a dollar bill, and he put some of the substance from the vial on the dollar bill. Detective Stanbro folded the bill and kept it. There was approximately a half a gram of cocaine left in the vial. Respondent placed the glass vial back into his pocket. Detective Stanbro took respondent home, then went back to the office and did a Vol-Tox test on the substance provided by respondent. The substance tested positive for the presence of cocaine. Detective Stanbro then placed the dollar bill containing the cocaine into the property room for safekeeping. The evidence was later chemically analyzed by use of ultraviolet spectrophotometry and gas chromatography mass spectrometry tests; which established conclusively that the substance contained cocaine. Detective Stanbro saw respondent the following day at school, September 23, 1986, at approximately 10:20 in the morning. Detective Stanbro was in a little conference room in the back of Mr. Layton's biology class, and respondent came in to see her. Respondent handed Detective Stanbro $60 and stated that he needed to buy a gram of cocaine. Detective Stanbro told him that she would introduce him to the person who was selling the cocaine. However, Detective Stanbro kept the $60. Respondent then left the room. The next contact Detective Stanbro had with respondent was on September 25, 1986, at about 1:45 p.m. Detective Stanbro went to see respondent in his classroom. Respondent was showing a film and the classroom was very dark. Detective Stanbro went to the back of the classroom to talk to respondent. Respondent was at his desk behind the partition. Detective Stanbro asked respondent if he had any cocaine on him, and respondent said that he had a little bit. Respondent stated that she could have a "snoot" if she wanted. Respondent took the glass vial out of his pocket. It was the same vial that he had at the restaurant; however, there was only a small amount of cocaine left in the vial. Detective Stanbro told respondent that she was afraid to snort any cocaine in the classroom because of the children being present, but respondent stated that it was easy and demonstrated by placing the vial, which had a flared screw-in top, up to his nostril and inhaling. Detective Stanbro then took the vial and attempted to put some of the substance in the vial on a Kleenex so that it could be saved for evidence, but there was not enough cocaine in the vial for her to get a sample without scraping the sides, which she thought would look suspicious. During the course of conversation with Detective Stanbro at the back of the classroom, respondent mentioned the $60 he had given her on Tuesday and asked about the gram of cocaine he was supposed to receive. He stated that it was a great deal and that he had never purchased cocaine so cheaply before. He added that the best price he had ever gotten before was $75 a gram. Detective Stanbro told him that they would get the gram of cocaine the next day around lunch time. She left respondent's class at about 2:40 p.m. The next day, Friday, September 26, 1986, at about 10:20 a.m., respondent went to Mr. Layton's classroom to see Detective Stanbro. Respondent acted differently than he had before. He stated that he had just received a $300 electric bill and that he wouldn't be able to buy the cocaine. He wanted the $60 back. He stated that he was being too blatant about his use of cocaine at the school and told Detective Stanbro that he had decided to "cool it" for a while. He also asked Detective Stanbro very specific questions about her college background, including the classes and teachers that she had. Detective Stanbro felt that respondent was acting very suspiciously and concluded that respondent suspected her of being an undercover police officer. After respondent left the classroom at about 10:45 a.m., respondent called Sergeant Cuesta and advised him of the situation. Detective Stanbro went back to the vice office and a decision was made to prepare a warrant for respondent's arrest. At 2:45 p.m. Detective Stanbro returned to the school and placed respondent under arrest for possession and delivery of cocaine of less than a gram in weight. Respondent's arrest occurred during the school day while students were present on campus. The time and place of arrest was the decision of the Vice Control Bureau. Shortly after his arrest, at about 4:15 p.m., Sergeant Cuesta interviewed the respondent after respondent was advised of his Miranda rights and signed a "Consent to be Interviewed" form. Respondent admitted telling Detective Stanbro that he got high on cocaine, but stated that he told her he did not enjoy smoking marijuana. He admitted having cocaine with him and providing some of the cocaine to Detective Stanbro. He admitted to Sergeant Cuesta that he used cocaine at school. He said that working with children was emotionally draining and that he would get very tired at the end of the school day. He stated that because there wasn't a coffee maker in his classroom, he snorted cocaine. Respondent emphasized that he did not use cocaine in front of his students and stated that one of the reasons he put up a screen in front of his desk was to hide his cocaine use from the students. Respondent stated that he bought about a gram of cocaine at a time and it would last him about six months. Respondent became very emotional and stated that he was ashamed of himself for the embarrassment he had caused to his colleagues and to his family. He said he had a drug problem. Respondent's testimony at the hearing was not credible and is rejected. Respondent testified that when he went to the restroom at the Casa Gallardo, there was a stranger in the restroom who offered respondent the vial with the substance in it. The stranger said "Your girlfriend seems to be really into doing things. Why don't you give her some of this?" Respondent stated that the stranger wanted him to buy the substance, but when respondent said no, the stranger just gave him the vial with the substance in it. Respondent testified that he didn't know what was in the vial. However, he also testified that he gave the entire contents of the vial to Detective Stanbro the night they went to the restaurant when she asked for cocaine. It is not only beyond belief that a stranger would approach the respondent in a public restroom and simply give him what turned out to be an expensive contraband drug, it is also beyond belief that the respondent would then give the entire contents of the vial to Detective Stanbro, fully believing that she would later consume the substance, when he had no idea what the substance was. About four months after his arrest, respondent went to see Dr. M. K. El-Yousef, a psychiatrist, for the purpose of establishing that he was not a drug abuser. Respondent was given five tests by a substance abuse counselor and had a one hour interview with Dr. El-Yousef. The only information provided to Dr. El-Yousef was provided by the respondent. Based on the results of the five tests and his interview with the respondent, Dr. El-Yousef opined that respondent "is not a substance abuser" and is a "relatively naive adult who means well as a teacher who got set up and fell as he described." (e.s.) Obviously, Dr. El-Yousef believed that respondent was being truthful in describing the events leading up to his arrest. However, the events respondent related to Dr. El-Yousef simply did not occur. Respondent told Dr. El-Yousef that he met a girl at a bar who had approached him and asked him if he wanted to get high; that he "played it cool and said sure"; that he then bought some cocaine from an individual that the girl pointed out to him; and that when the girl and he left to go to his apartment to use the cocaine, the police picked him up outside the bar. Since respondent was not entirely truthful with Dr. El- Yousef, the validity of Dr. El-Yousef's opinion concerning respondent's drug use or abuse is questionable. His opinion that respondent "got set up and fell as he described" is clearly erroneous. From all the evidence presented, it is apparent that respondent's effectiveness as an employee of the school board has been seriously reduced. The respondent's arrest and subsequent trial and sentencing received a good deal of coverage in the local news media. However, it is not only the amount of coverage that respondent's activities received that has reduced his effectiveness as a teacher, it is respondent's own conduct that has seriously reduced his effectiveness as a teacher. By his conduct, respondent has established that he has extremely poor judgment and a total lack of awareness of the responsibilities of a teacher. Student drug possession is considered a serious matter by the Hillsborough County Schools. If a student at Franklin Junior High is caught with drugs in his possession, he is turned over the police for arrest. Approximately 70 percent of the school resource officer's teaching time is devoted to discouraging drug usage among students. Teachers set an example for their students; they serve as role models. By his conduct, respondent showed that he had little concern about the effect his drug use might have on his students. In his proposed findings of fact, respondent suggests that Detective Stanbro "did entice" the respondent to a bar where the respondent "went along with the prompting of the undercover officer . . ." From the evidence presented, it is apparent that respondent has convinced himself that he was simply an innocent victim "set up" by an attractive woman who used the bait of romance to lure him into talking about drug use. However, respondent's rationalization of the events in question simply does not coincide with the facts, and his perception of this matter only emphasizes respondent's lack of awareness of the responsibilities of his profession. Respondent has completely overlooked the fact that throughout this episode he believed that Detective Stanbro was an intern, a college student placed in the school system to learn by experience and by example how to be a teacher. Had respondent possessed the slightest sense of responsibility to the educational process or his school system, he would not have condoned or encouraged an intern's use of drugs, regardless of the amount of "prompting" he received or his own desire for a romantic relationship. The respondent, however, not only indicated to this "intern" that the use of drugs by a teacher was acceptable, he explained how a teacher could use cocaine in the classroom without getting caught by the students and then demonstrated how easy it was by snorting cocaine in front of the intern during one of his classes. This is clearly not the behavior of an educator who has any concern for his profession. Respondent is currently on court-ordered probation for a period of 15 years. One of the conditions of his probation is that he submit to periodic drug testing. The drug abuse screens reported to the Department of Corrections on August 14, September 10, September 25, October 8, November 10, November 20, and December 8, 1987, did not reveal the presence of cocaine or any other drug. The evidence presented did not indicate that respondent was ever a "heavy" drug user. Detective Stanbro testified that her impression was that respondent was a "casual" user. Further, respondent presented the testimony of a great number of his fellow teachers and other school staff, all of whom testified that respondent had never appeared to be disoriented or intoxicated.
Recommendation Based on the foregoing findings of fact and conclusions of law, and pursuant to Section 231.262(5), Florida Statutes, it is RECOMMENDED that a final order be entered revoking respondent's teaching certificate. DONE AND ORDERED this 27th day of April, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 27th day of April, 1988. APPENDIX Petitioner's Proposed Findings of Fact: 1-11. Accepted. 12. Accepted generally as stated in paragraph 12 of the Recommended Order. 13-17. Accepted generally. 18-20. Accepted. 21. Accepted though not as stated. 22-23. Rejected as unnecessary and because of lack of competent evidence regarding the school board's action. Rejected because it is not a finding of fact; further, although the drug screen tests are not relevant to the allegations of the complaint, they may be considered as relevant in considering the penalty. Rejected as not a finding of fact. Rejected as a finding of fact; however, report submitted not relied upon for any factual findings. Accepted that Dr. El-Yousef's opinion is questionable for reasons stated in paragraph 1. Rejected as irrelevant. 29-30. Accepted generally in that despondent was not considered a credible witness. 31. Accepted generally. 32-33. Accepted to the degree it relates findings of fact. Respondent's Proposed Findings of Fact: Respondent's only finding of fact, on page five of his proposed order, is rejected for the reasons stated in the Recommended Order. The evidence does not support a finding that Detective Stanbro "did entice" respondent to a bar. There was no evidence that respondent "went along with the prompting" of Det. Stanbro. Merely asking respondent if he liked to get high is hardly prompting. Respondent admitted to both Det. Stanbro and Sgt. Cuesta that he used cocaine in the classroom and Det. Stanbro observed him doing so. Respondent's admissions and his actions can hardly be classified as "only joking." COPIES FURNISHED: J. David Holder, Esquire RIGSBY & HOLDER 325 John Knox Rd., Suite C-135 Tallahassee, Florida 32303 W. Dale Gabbard, Esquire 412 East Madison Street Suite 901 Tampa, Florida 33602 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Martin B. Schapp Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
Findings Of Fact During October, 1980, the staff of Polk Community College prepared a cost analysis for the 1979-80 school year in accordance with requirements imposed by the State Board of Education. One of the purposes of this annual cost analysis is to allow comparison of costs among community colleges. The cost analysis for the 1979-80 school year indicated that Polk Community College had high instructional costs per full-time student in comparison to other community colleges. The District Board of Trustees of Polk Community College accordingly requested that the college staff conduct further studies to examine the cost effectiveness of the instructional program. These further studies revealed that Polk Community College employs more full-time instructors in various academic fields than there are classes available for the instructors to teach. This situation is the apparent result of a shift in student demand. The psychology grouping of academic subjects is among those which has been overstaffed with instructional personnel at Polk Community College in recent years. When the number of instructional personnel available to teach in the psychology grouping is considered against an optimum class size of thirty- five students and compared to the number of students who actually took courses in the psychology grouping, it is apparent that the psychology grouping had .1 more faculty members than needed for the academic year which began in September, 1977; .8 more instructors than needed for the academic year which began in September, 1978; 1.2 more faculty members than needed for the academic year which began in September, 1979; and 1.8 more faculty members than needed for the academic year which began in September, 1980. Projections for the 1981 academic year indicate that the psychology grouping will again be overstaffed by 1.8 instructors. Overstaffing of instructional personnel such as has consistently occurred in the psychology grouping of academic courses results in several inefficiencies. In order that instructional personnel can carry full course loads as required by law, it is necessary to allow some courses to be taught with fewer students than is considered efficient. Alternatively, faculty members are given special projects to complete in lieu of teaching a course. These special projects have very little value to the community college. Furthermore, by maintaining excessive instructional staffs to teach academic subjects where student demand is decreasing, the college is unable to hire instructional personnel to teach subject areas where student demand is increasing. There has been an increase in student demand for courses in data processing at Polk Community College. The college administration desires to reallocate its resources to provide more faculty members to teach data processing courses rather than courses in psychology for which student demands have decreased. The administration has accordingly recommended to the college's District Board of Trustees that one psychology instructor be terminated. The Respondent, James E. Durant, IV, is a psychology instructor at Polk Community College. The college administration has recommended that his employment be terminated due to the overstaffing in the Psychology Department. In making this recommendation, the administration evaluated the Respondent vis- a-vis other psychology instructors in the following areas: the capacity of the faculty members to meet the educational needs of the community, including consideration of past and anticipated demand for courses and their cost effectiveness, and future curriculum needs; the efficiency of the faculty members as indicated by such factors as professional evaluations; the educational qualifications of the faculty members including their versatility, level of degree, field, and length of service; and whether the faculty members have a continuing contract or annual contract with the community college. The administration concluded that there were no significant differences among instructional personnel in the psychology grouping in the areas of future curriculum needs, educational qualifications and type of contract. This conclusion is supported by the evidence. It does not appear that curriculum needs within the psychology grouping are changing. All of the faculty members in the psychology grouping have either master's degrees or doctorates and have been employed at the community college for a lengthy period. All are on continuing contract. The administration contends that the Respondent is the least cost effective of the psychology instructors and that he has been the least efficient. The administration based its conclusion that the Respondent was the least cost effective of the psychology faculty members through an analysis of weak and cancelled sections that have been taught by psychology faculty members. Weak sections are those classified as having been taught with fewer than fifteen students. Cancelled classes are those for which there was so little student interest that a scheduled course was cancelled. There are several deficiencies with use of a "weak and cancelled section matrix" as a means of determining the cost effectiveness of an instructor. The fact that a class runs weak or must be cancelled can be the result of factors which would reflect favorably upon an instructor. For example, if an instructor develops experimental classes or teaches courses beyond the introductory sort, there is likely to be less demand for the courses, but the courses would have an important function in the community college curriculum. Furthermore, student demand for classes depends to some extent upon factors that are beyond the control of the instructor. Student demand for classes is high, for example, during certain times of the day and low during others. Classes are scheduled by the administration, and not by the instructors. Despite these deficiencies of considering weak and cancelled sections as evidence of poor cost effectiveness, it is appropriate to do that in this instance. For the 1977 through 1981 academic years, the Respondent had a total of 32 weak or cancelled sections. No other faculty member in the psychology grouping had more than 13 weak and cancelled sections during that period, and the four other faculty members combined had only 34 weak and cancelled sections. These figures establish that there is significantly less demand for courses taught by the Respondent than courses taught by other members of the psychology grouping, and that he is therefore the least cost effective instructor within the grouping. The administration's contention that the Respondent is the least efficient instructor within the psychology grouping is supported by the evidence. The Respondent has consistently received the lowest supervisory and student evaluations of instructors within the psychology grouping since the 1975 academic year. Furthermore, there have been more student complaints lodged with respect to the Respondent than for all other members of the psychology grouping combined. The large number of student complaints resulted in remedial action being taken with respect to the Respondent during the 1979 academic year. The Respondent's classes were monitored more closely than is usual, and the number of complaints was reduced for a short period. During the 1980 academic year, however, the large number of student complaints has persisted. Typical student complaints have been that the Respondent is not accessible to answer questions, and that he degrades students by making them wait for inordinate periods outside his office or classroom. While it does appear that the Respondent is trained to teach courses outside of the psychology grouping, it appears that he has taught primarily psychology courses for a number of years. The evidence would not sustain a conclusion that he is qualified to teach in areas where there is a need for instructional personnel. The Respondent has contended that he is qualified to teach mathematics and French; however, there is no competent evidence in the record to support these contentions. The Respondent has contended that inappropriate factors were considered by the administration in recommending that he be terminated. He contends that the reasons given by the administration for terminating him are actually a subterfuge, and that the administration is seeking to terminate him because of the Respondent's political activities, and because of his views on controversial subjects. These contentions are not supported by the evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the District Board of Trustees of Polk Community College enter a final order accepting the recommendation that the Respondent, James E. Durant, IV, be terminated from his position as an instructor of the community college, and that the Respondent be terminated effective at the conclusion of the 1980-81 academic year. RECOMMENDED this 29th day of July, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1981. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell, Boswell & Conner Post Office Box 1578 Bartow, Florida 33830 Dr. James E. Durant, IV 2605 Reef Court Orlando, Florida 32805 Mr. Frederick T. Lenfestey President Polk Community College 999 Avenue H, Northeast Winter Haven, Florida 33880
The Issue This case concerns the administrative prosecution by the Petitioner against the Respondent through an Administrative Complaint and amendment to that Administrative Complaint. The original statement in the Administrative Complaint accuses the Respondent of purchasing a forged transcript, which transcript indicated that the Respondent had completed requirements for a masters degree from the Florida A & M University and had received that degree, and that the Respondent in turn used the forged transcript to fraudulently receive a certification from the Florida Department of Education, Office of Certification, to the effect that the Respondent held a masters degree. These acts on the part of the Respondent purportedly violate Section 231.28, Florida Statutes, in particular, for reason that the Respondent has committed an act of gross immorality, used fraudulent means to secure a teacher's certificate, and engaged in conduct which seriously reduces her effectiveness. The Respondent is also accused of violating Section 231.09, Florida Statutes, for failing to provide a proper example for students and to have violated Chapter 6B-1, Florida Administrative Code, by not practicing her profession at the highest ethical standard. By amendment to the Administrative Complaint, the Respondent is also accused of violating Subsection 231.28(1), Florida Statutes, by being charged with uttering a forgery and for that charge being adjudicated guilty of a felony and placed on three years probation, due to her plea of nolo contendere to felony charges. Adjudication in this matter allegedly was made on August 3, 1981.
Findings Of Fact The Petitioner, by Administrative Complaint and the amendment to that complaint, attempts to discipline the Respondent by action in revocation or suspension of the teacher's certificate of Delma M. Dawson, or other appropriate action. The Respondent having been afforded the opportunity for a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, availed herself of that opportunity and the formal hearing was conducted on September 10, 1981. At present, the Respondent is the holder of a teacher's certificate issued by the State of Florida, Department of Education, No. 423465, issued on October 31, 1979, and valid through June 30, 1986. This is a regular certificate, masters level. Dawson had obtained this certificate through the process of an application filed with the Teacher's Certification Section of the Florida Department of Education. The date of the filing was June 29, 1979. The application and accompanying transcript to that application may be found as Petitioner's Exhibit No. 7, admitted into evidence. The transcript associated with the application reflects completion of a masters program at Florida A & M University, with the award of a Master of Education Degree with a major in Elementary Education. In fact, this transcript was a fraudulent transcript which the Respondent had purchased from am individual at Florida A & M University named Eugene Sutton. Sutton had access to certain school materials which allowed him to fabricate the bogus transcript. Dawson was to pay $3,500.00 for the purchase of the bogus transcript indicating her achievement of a masters degree and, in fact, paid $3,000.00 for that purchase. At the time of the purchase, she knew that she had not completed the necessary course work and complied with the other requirements for receipt of the alleged graduate degree. Dawson had been a continuing education student at Florida A & M University beginning in January, 1976, and had earned 23 hours of credit. This credit earned was not part of the 54 hours necessary to achieve the masters degree she claimed to have, but was instead, credit towards the validation of her undergraduate degree from Edward Waters College of Jacksonville, Florida. That institution not being accredited, the credit earned from Florida A & M University was for purposes of validating a degree from that unaccredited school. The actual transcript of credit hours earned from Florida A & M University may be found in Petitioner's Exhibit No. 1A. At present, the Respondent is an employee of the Duval County, Florida, School System. She was hired to work as a teacher in Duval County on August 23, 1977. On November 6, 1979, she presented the masters level certificate issued by the Florida Department of Education to the officials in Duval County which was an upgrade in her status and through the presentation of this credentials change, it ostensibly entitled her to approximately $900.00 a year in additional compensation in school years 1979- 80 and 1980-81. This is a differential between this teacher at the masters level rank of certification as contrasted with the teacher at a bachelors level of certification employed by the Duval County School System. Dawson never received this additional compensation in view of the discovery of her activities in purchasing a degree which she had not earned. Since the time of her involvement in the purchase of an illegal graduate degree, the Respondent has been charged in the Circuit Court in Leon County, Florida, under the provisions of Section 831.02, Florida Statutes, with uttering a forgery, a third degree felony and entered a nolo contendere plea to that offense. For this plea, the defendant was adjudged guilty and placed on probation for a period of three (3) years. The terms of the disposition of Respondent's case may be found in petitioner's Exhibit No. 16, admitted into evidence, which is a copy of the judgment of guilt and placement of the defendant on probation. At present, the Respondent is being used as a substitute teacher in the Duval County School System and as an employee in the library services of that school system. Her most recent evaluation, as well as those evaluations made of her performance during the pendency of her service with bits Duval County School System, has shown her to be a satisfactory employee.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the license rights of the Respondent to teach in the State of Florida and the associated certificate No. 413465 be permanently revoked far the violations as established herein. 1/ DONE and ENTERED this 16th day of October, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 16th day of October, 1981.
The Issue The issue in this case is whether the Petitioner is eligible for licensure by examination, with waiver of the national examination, as a psychologist in the State of Florida. Specifically the issues for determination are: Whether the Petitioner has a Ph.D. in psychology from the University of Toledo, or received a doctoral-level psychological education as defined in Florida Statutes; Whether the Petitioner's Ph.D. was obtained from a program comparable to an the American Psychological Association (APA) accredited program; and Whether the Petitioner's internship met the requirements of experience in association with or under the supervision of a licensed psychologist as identified in Florida Statutes and the Florida Administrative Code.
Findings Of Fact Ilene R. Berson (Petitioner) received a Master of Education degree with a major in school psychology from the University of Toledo, in Toledo, Ohio, on or about August 25, 1990. The Petitioner received a Ph.D. from the University of Toledo on or about June 14, 1997. The doctoral program completed by the Petitioner at the University of Toledo was not accredited by the American Psychological Association (APA) at the time of her attendance, and remained unaccredited at the time of this hearing. The APA does not accredit the Petitioner's doctoral internship program. The Petitioner has not enrolled in any program to augment her education since the award of her Ph.D. in 1997. In June 1998, the Petitioner applied for licensure as a Florida psychologist by examination with waiver. The Petitioner has taken and passed the EPPP exam, a national psychology licensure exam. On or about March 2, 1999, the Board of Psychology (Board) issued a Notice of Intent to Deny Application for Licensure. In order to be eligible for licensure as a psychologist in Florida, an applicant must have a doctoral-level degree in psychology or an appropriate equivalent. The Petitioner does not have a Ph.D. in psychology. According to the Petitioner's college transcript, the Petitioner earned a Ph.D. in Education with a major in "Guidance and Counselor Education." According to the Petitioner's application for licensure as a psychologist, the Petitioner earned a Ph.D. in Guidance and Counseling Education with a school psychology concentration. There is evidence that the University of Toledo doctoral program completed by the Petitioner awarded degrees in "school psychology" and in "counselor education." Letters from University officials suggest that, despite the transcript's identification of her degree, the Petitioner's degree is in school psychology. Assuming that assertions related to the title of the Petitioner's degree are correct, the Petitioner has a Ph.D. in school psychology. The award of degrees and licensure in school psychology and general psychology involve separate courses of study and differing types of practice. Florida law provides for specific licensure of school psychologists. The evidence fails to establish that the Petitioner has a Ph.D. in psychology. Because the Petitioner's Ph.D. is not in psychology, the Petitioner must establish that she received a "doctoral- level" psychological education, as the term is defined by statute. The applicable statutory definition requires that her degree be granted by an accredited institution, and that her education be provided through an accredited program. The North Central Association of Colleges and Schools accredits the University of Toledo, an accrediting agency recognized and approved by the U.S. Department of Education. The APA does not accredit the psychology program at the University of Toledo. The APA is the only agency recognized and approved by the U.S. Department of Education to accredit doctoral programs in psychology. Because the University of Toledo does not have programmatic accreditation, the Petitioner must demonstrate that the psychology program at the University of Toledo is comparable to an APA-accredited program. As part of her application, the Petitioner submitted a comparability letter from Dr. Janet Graden. Dr. Graden is the director of the APA-accredited doctoral program in school psychology at the University of Cincinnati. Dr. Graden opined in her letter that based upon a review of the University of Toledo School Psychology Program Handbook and a review of the Petitioner's transcript, the Petitioner's doctoral program of study at the University of Toledo was comparable to the school psychology doctoral program at the University of Cincinnati. A school psychology program is not the equivalent of a psychology program. The Graden letter is insufficient to establish that the University of Toledo's psychology program is comparable to an APA-accredited psychology program. The Petitioner also offered the deposition testimony of Dr. George Batsche and Dr. Thomas Oakland in support of the assertion that the University of Toledo program was comparable to an APA-accredited program. In response, the Board offered the deposition testimony of Dr. Russell Bauer. Based upon review of the deposition testimony, the testimony of Dr. Bauer is persuasive and is credited. Dr. Oakland also submitted a comparability letter at the time of his post-hearing deposition. Dr. Oakland's letter states that he believes the Petitioner's "academic and professional experiences in conjunction with the . . . program from the University of Toledo together with her other professional experiences result in her being comparable to graduates of [Dr. Oakland's program at the University of Florida.]" According to Dr. Oakland's curriculum vitae, he is currently the director of the school psychology program at the University of Florida. Dr. Oakland's letter fails to establish that the doctoral program completed by the Petitioner is comparable to an APA-accredited program in psychology. Dr. Oakland's letter states only that the Petitioner is comparable to a graduate of the University of Florida program. The comparability of program graduates is not at issue in this proceeding. The greater weight of the credible evidence establishes that the University of Toledo doctoral course of study completed by the Petitioner is not comparable to an APA-approved doctoral program in psychology. Review of the Petitioner's transcript and course materials indicates that the coursework completed as part of the doctoral program at the University of Toledo is not comparable to an APA-approved psychology doctoral program. Dr. Bauer testified as to the factors considered by the APA in determining whether a program meets the minimum requirements for accreditation. Dr. Bauer opined that the University of Toledo program would likely not meet the minimum requirements for APA accreditation. Dr. Bauer reviewed the APA accreditation requirements and the University of Toledo doctoral program completed by the Petitioner. Dr. Bauer specifically addressed the coursework completed by the Petitioner as part of her doctoral program. Dr. Bauer opined that the University of Toledo program is not comparable to an APA-accredited program. Dr. Bauer's testimony is credited. Another requirement of Florida law for licensure as a psychologist is completion of appropriate internship and residency programs, each of at least 2,000 hours, for a total experience requirement of at least 4,000 hours. The evidence fails to establish that the Petitioner has completed the appropriate experience requirement. The evidence fails to establish that the Petitioner completed an appropriate 2,000-hour internship program. The Petitioner's application for licensure indicates that she interned with Dr. Jerome Zake, Dr. Constance Dorr, and with the Toledo public school system from September 8, 1990 through August 30, 1992. The application indicates that the internship included one and one-half hours of clinical supervision per week, and "at least" one hour of individual clinical supervision per week, and states a total number of hours at 1,580. The majority of the Petitioner's internship time was spent in a school setting: two elementary schools, a middle/high school, and a center for emotionally handicapped children. The public school internship was not APA accredited. The total number of hours of the Petitioner's internship is substantially less than 2,000. According to Dr. Zake, his supervision of the Petitioner extended from September 8, 1990 to August 30, 1992. Dr. Zake's submission to the board states that the Petitioner worked for him for a total of 250 hours in addition to her public school work. Dr. Zake's supervision included weekly half-hour meetings with the Petitioner. Dr. Zake indicates that all of the Petitioner's time was spent in evaluation, measurement and assessment of intellectual ability, aptitudes, or achievement that directly relates to learning or behavioral problems in an educational setting. Although the Petitioner disputes the information provided by Dr. Zake as to this point, there is no credible evidence to support her assertion that her work was other than as reported by Dr. Zake. According to Dr. Dorr, her supervision of the Petitioner extended from August 1991 to June 1992 while the Petitioner interned with the Toledo public school system. Dr. Dorr's submission to the board states that the Petitioner worked for a total of 1,330 hours as a "school psychologist intern." Dr. Dorr's supervision included twice-weekly one-hour meetings with the Petitioner. Dr. Dorr indicates that approximately one-half of the Petitioner's time was spent in evaluation, measurement and assessment of intellectual ability, aptitudes, or achievement that directly relates to learning or behavioral problems in an educational setting. Although the Petitioner disputes the information provided by Dr. Dorr as to this point, there is no credible evidence to support her assertion that her work was other than as reported by Dr. Dorr. Dr. Dorr was the Petitioner's primary supervisor during the internship. Dr. Dorr is unlicensed, and is not a member of the University of Toledo faculty. Dr. Zake is a licensed psychologist in Ohio, and was an adjunct faculty member of the University of Toledo. The evidence fails to establish that the Petitioner's internship complies with applicable requirements for licensure as a psychologist in Florida. Another Florida requirement for licensure as a psychologist is a 2,000-hour post-doctoral residency experience. In the license application, the Petitioner indicates that she worked as an "evaluator/therapist" from December 13, 1994 to June 16, 1998, with Psychology Associates of Mt. Pleasant, South Carolina, under the supervision of Dr. Lucia Horowitz. The Petitioner received her Ph.D. in June 1997. Therefore, according to the information set forth on the application, a substantial portion of the Petitioner's residency was completed prior to receipt of her doctoral degree. The application indicates that her position as an evaluator/therapist included 20 hours weekly for 156 weeks. The application states that her work included one hour of clinical supervision per week, and one hour of individual clinical supervision per week, and states the total numbers of hours at 3,120. According to Dr. Horowitz, her supervision of the Petitioner extended from June 15, 1997 to June 19, 1998. Dr. Horowitz reports that the Petitioner completed supervised experience of at least 2,000 hours in the year of her residency, including at least 900 hours in service-related experience, at least two hours of clinical supervision per week, and at least one hour of individual supervision per week. Dr. Horowitz identifies the location of the residency as "Psychology Associates of Mt. Pleasant" and "Lowcountry Children's Center." According to the Horowitz submission, the Lowcountry Children's Center is located in Charleston, South Carolina. The Petitioner's application for licensure does not identify the Lowcountry Children's Center as the site of a portion of her residency. The evidence fails to establish that the Petitioner's residency meets the requirements of law applicable to application for licensure as a psychologist in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order denying the Petitioner's application for licensure by examination as a psychologist in Florida. DONE AND ENTERED this 16th day of February, 2000, in Tallahassee, Leon County, Florida. 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 February, 2000. COPIES FURNISHED: Betsy S. Singer, Esquire Paul & Singer, P.A. First Union Center 100 South Ashley Drive, Suite 1720 Tampa, Florida 33602 Donna Erlich, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Psychology Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner should be granted a license to practice medicine in the State of Florida.
Findings Of Fact Dr. Thomas Vincent Savino, M.D., is presently licensed in New York and New Jersey. He has taken and passed all the necessary examinations in order to be licensed under Florida law. Prior to medical school, Petitioner was enrolled in osteopathic medical school for one year. Eventually in part due to financial considerations and in part because Petitioner desired to go to medical school, Dr. Savino was accepted to medical school at the State University of New York (SUNY) medical school. While in medical school, Dr. Savino had some academic difficulties that were documented in the transcript presented to the Board. His academic difficulty was unrelated to his abilities to render medical care. Eventually, the problems he had at SUNY were the subject of a lawsuit against the University. The lawsuit took over a year during which time Petitioner was enrolled and attended classes at SUNY, including a neurology course or clerkship. The neurology course was successfully completed as attested to in a letter from the Dean of Students of SUNY. The letter was submitted to the Board. Petitioner eventually lost his suit against the University and did not receive credit for the neurology course. Therefore, Petitioner's transcript from SUNY showed that Dr. Savino eventually successfully completed every required course except neurology. Neurology is not required by most medical schools. However, Petitioner was permitted to take the course. He successfully completed the course at St. Vincent's Medical Center. Dr. Savino did not list the neurology course under the area designated for listing medical school clerkships in the application. The reason that the neurology clerkship was not listed in Petitioner's application was that Petitioner did not receive credit for it despite completing the course successfully. Petitioner reasonably believed that listing the neurology course as a clerkship would have implied that he had received credit for it. The information was not hidden, but was contained in other documentation to the application. Clearly Petitioner was not attempting to mislead or hide the information from the Board. Petitioner finished his last year of medical school at Ross University. Petitioner was awarded an M.D. degree from Ross University School of Medicine in 1990. Petitioner adequately documented that he attended and passed the medical school curriculum necessary for licensure in the State of Florida. Importantly, since Petitioner has been in practice, there have been no allegations of malpractice made against him, nor have there been any Medicare or Medicaid complaints filed against him. He has had a successful career after graduation. The Board contends that Petitioner misrepresented the facts in response to question 11 on the application. Question 11 states: Was attendance in medical school for a period other than the normal curriculum? Petitioner answered "no" to question 11. In Petitioner's case, he took 4 years to complete medical school while he was officially enrolled in various medical school programs. The question is at best vague, ambiguous, and subject to varying interpretations, especially on facts like those here. Moreover, the dates of Petitioner's attendance at medical school were documented in his application. The Board was never misled by Petitioner's negative response and was well aware of Petitioner's time in medical school. The Board discussed this very subject at its meeting regarding Dr. Savino. In short, the answer to question 11 was not material to any matter necessary to be found by the Board and does not demonstrate bad character. The Board, in its order, and in its pretrial statement, contends that Dr. Savino misrepresented a material fact by stating on his curriculum vitae that he was an Assistant Clinical Physician at a time prior to when he graduated from medical school. It was a phrase Petitioner made up in order to describe his position while he was employed as an assistant office manager/aide in his father's medical practice. Petitioner's father was a clinical physician. The curriculum vitae itself shows that Dr. Savino was not awarded an medical degree until 1990. The curriculum vitae listed the assistant clinical physician's job from 1987-1988. Additionally, Dr. Savino properly reflected his job in his father's office as "assistant and office manager" in a letter he wrote to the Board dated May 6, 1996. The letter was written to the Board prior to the curriculum vitae's becoming an issue. In reviewing the record, all the facts regarding Petitioner's job with his father were contained in Petitioner's application. They were not hidden from the Board. In short, the statement regarding Petitioner's job with his father is not a material misrepresentation. It was a poor choice of words and use of the English language. Finally, the Board asserted that Petitioner received his other medical licenses and medical degree through fraudulent means. The Board bases this charge on the job description discussed above. However, the record is devoid of any evidence that any other jurisdiction or school relied on or used this information or description in any manner or that any fraud was committed by Dr. Savino in regard to these other jurisdictions. There is no evidence that Dr. Savino intended to mislead the Board as to either when he became licensed elsewhere or when he began active practice. There is no evidence in the record that contradicts either his testimony or the written evidence that he supplied concerning the jobs he has held in the past or his medical education, all of which was in Petitioner's favor. None of the technicalities raised by the Board demonstrate that Petitioner is of bad character, lacks candor, or has committed any fraud or misrepresentation to the Board or in any other jurisdictions. Therefore, Petitioner is entitled to licensure by endorsement.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered granting the Petitioner's license to practice medicine in the State of Florida. DONE AND ENTERED this 3rd day of April, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1998. COPIES FURNISHED: Eric B. Tilton, Esquire Gustafson, Tilton, Henning and Metzger, P.A. 204 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Lynne Quimby Pennock, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Dr. Marm Harris, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health Building 6, Room 102-E 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner made application to Respondent to obtain a license as a psychologist by exception pursuant to the provisions of Section 1 of Chapter 81- 235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. It was stipulated by and between the Petitioner and the Respondent that Petitioner's doctoral degree did not meet the specific course requirements of Rule 21U-11.05, Florida Administrative Code. Petitioner received his B.A. degree from Rutger's University, a master's degree in counselor education from Florida State University, and a Ph.D. in marriage and family counseling from Florida State University. Petitioner's doctoral dissertation concerned itself with one of the key aspects of Adlerian psychology called "social interest." This dissertation was of such professional significance as to result in an appearance of Petitioner for the purpose of presenting the paper to the American Society of Adlerian Psychologists. Petitioner's course of study for his doctoral degree focused primarily on Adlerian psychology. The total course work completed by the Petitioner exceeded the minimum requirements for his Ph.D. In addition to his educational training, the Petitioner has done individual counseling and psychotherapy for approximately eleven years. Within the general field of psychology there are a host of different subdivisions. One of these subdivisions is counseling psychology. Within counseling psychology there are different theories or methods relative to dealing with individuals, and one of these methods is the Adlerian method. It was this method which was the focus of the Petitioner's dissertation for his doctoral degree. Petitioner sought his licensure by exception by contending that he obtained a doctoral degree from an approved university in a program that is primarily psychological in nature. The Petitioner's application for licensure was denied on the basis that his course of study was not primarily psychological in nature because the program did not include at least one course in biological bases of behavior or cognitive-affective bases of behavior as required by subparagraphs (a) and (b) of Subsection (2) of Rule 21U-11.05, Florida Administrative Code. Three other individuals, Dr. Kerr, Dr. Simpson, and Dr. Shreenan, applied for and were granted licensure as psychologists during the same period of time in which Petitioner applied and was denied licensure. Petitioner's educational qualifications were equal to or exceeded those of Drs. Kerr, Simpson, and Shreenan. Dr. Kerr, Dr. Simpson, and Dr. Shreenan were certified by the Florida Association of Practicing Psychologists and gained licensure as psychologists pursuant to Chapter 81-235 as amended by Section 37 of Chapter 82- 179, Laws of Florida, which mandated licensure of persons so certified. Petitioner did not apply for certification by the Florida Association of Practicing Psychologists. The evidence did not establish that Petitioner's failure to apply for such certification was in any part due to actions or inactions on the part of the Respondent. The specific course requirements of Rule 21U-11.05, Florida Administrative Code, were not applicable to those individuals gaining licensure through certification by the Florida Association of Practicing Psychologists. Rule 21U-11.05 was promulgated by the Board of Psychological Examiners in order to establish an objective method for evaluating the educational programs of those applying for licensure. The rule establishes the minimum qualifications for a program of study to be considered primarily psychological in nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for licensure as a psychologist be DENIED. DONE AND ENTERED this 29th day of September, 1983, at Tallahassee, Florida. MARVIN E. CHAVIS, 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 29th day of September, 1983. COPIES FURNISHED: Mallory E. Horne, Esquire Randall A. Holland, Esquire BORNE, RHODES, JAFFRY & Assistant Attorney General HORNE Administrative Law Suite 800, Barnett Bank Bldg. 1601-The Capitol Tallahassee, Florida 32301 Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Psychology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner filed with the Board of Medical Examiners an application for licensure by examination in 1983. Included with that application were original "affidavits" submitted on Petitioner's behalf by Dr. Borroto and Dr. Velez. Petitioner filed an application for licensure by endorsement in October of 1984. In conjunction with his application for licensure by endorsement, Petitioner submitted photocopies of the "affidavits" submitted with his 1983 application for licensure by examination. These photocopies of Dr. Borroto's and Dr. Velez's "affidavits" were submitted by Petitioner with notarized attestations that the notary had in fact seen the originals. Petitioner knew that this was not true. On December 28, 1984, Dorothy Faircloth, Executive Director of the Board of Medical Examiners (hereinafter "the Board"), sent Petitioner a letter indicating, among other things, that Petitioner had submitted photocopies rather than original letters establishing his five years of licensed medical practice. Furthermore, he was notified that his application would not be complete until the originals were received. The same letter notified Petitioner that all documents to be notarized must be certified as true and correct copies of the original and stated so by the notary. Petitioner was specifically warned that the notary must see the original and copy in order to make the required statement. In January of 1985, Petitioner submitted new affidavits concerning five years of licensed medical practice. On August 2, 1985, Petitioner attended a meeting of the Board's Foreign Medical Graduate Committee (hereinafter "FMGC") in order to address problems with his application for licensure by endorsement. At that meeting, Petitioner failed to satisfactorily address the issues concerning affidavits attesting to his five years of licensed medical practice. The committee voted to recommend denial of Petitioner's application based upon the lack of personal knowledge of the affiants, improper notarization of the purported affidavits and fraudulent notarization of the 1983 affidavits of Dr. Borroto and Dr. Velez. The Board considered Petitioner's application for licensure by endorsement on August 3, 1985, and voted to deny licensure based on the recommendations of the FMGC. An Order to that effect was filed on August 26, 1985. On October 4, 1985, the FMGC reconsidered Petitioner's application, including new affidavits from Dr. Oscar R. Bravo-Campa, Dr. Juan A. Enriquez- Elesgaray and two other licensed physicians. However, the FMGC determined that the new affidavits did not overcome the problems raised during Petitioner's original attempt to obtain licensure by endorsement and voted to reaffirm their previous recommendation. On October 5, 1985, the Board reconsidered Petitioner's application for licensure by endorsement and voted to reaffirm its previous denial. An Order to that effect was filed on March 27, 1986. Dr. Pedro G. Velez's certification dated January 10, 1983, stated that he had personal knowledge of Petitioner's medical practice in Cuba from January 1971 to June 1980. At the final hearing in this cause, Dr. Velez testified that he has known Petitioner personally only since the 1980s and that he did not know him professionally in Cuba at all. Dr. Velez also testified that he left Cuba in 1966 and that he might have met Petitioner when Petitioner was a student in 1964. Dr. Velez further testified that he signed a second letter in behalf of Petitioner. He testified that Petitioner had probably prepared it for his signature and that no one was present when he signed it. Specifically, the notary who attested to his signature was not present. Dr. Pedro G. Velez clearly had no personal knowledge that Petitioner was licensed to practice or did practice medicine in Cuba from January 1971 through June 1980. The certification completed by Dr. Esperanza Arce-Nunez, regarding Petitioner's five years of licensed medical practice and submitted by Petitioner to the Board in 1985, was not notarized as an affidavit. Dr. Arce-Nunez testified that she could not remember anything about seeing Petitioner in a practice setting in 1971, one of the years covered by her certification. In fact, her only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Oscar R. Bravo-Campa testified that he coincided with Petitioner during annual medical rotations in Havana every year. He also testified that he could not remember when or where he saw Petitioner in a practice setting during the nine years covered by his affidavit, which specifically stated that he had contact with Petitioner in a practice setting three times a year in addition to rotations every year between 1971 and 1980. In fact, his only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Ignacio Coro initially testified that he knew Petitioner for six years. In fact, Petitioner has resided in this country for approximately six years, since June of 1980. Dr. Coro subsequently claimed to know Petitioner longer than six years, about thirteen years. Although Dr. Coro's certification claimed he saw Petitioner in a practice setting twice a year from 1971 to 1980, he testified that he saw Petitioner only once in 1980. Dr. Coro could not remember seeing Petitioner in a practice setting during 1973. Dr. Coro further testified that the clarification statement, dated September 20, 1985 and attached to his September 9, 1985 affidavit, was included because Petitioner specifically requested it, and he did not know where the document was typed. The certification prepared by Dr. Juan A. Enriquez-Elesagaray and submitted by Petitioner did not contain a notarization. Petitioner testified that the letters dated September 20, 1985 and signed by Dr. Esperanza Arce-Nunez, Dr. Oscar R. Hravo-Campa, Dr. Ignacio Core, and Dr. Juan A. Enriquez- Elesgaray were each composed by the individual doctors. However, the letters are almost identical as to their wording, punctuation mistakes and misspellings. Petitioner testified both that he received his medical degree in 1971 and in 1977. Petitioner further testified that he allowed his application to be notarized by someone who did not witness his signature. Dorothy Faircloth, Executive Director of the Board, testified that the Board initially had concerns about Petitioner's application, specifically because he submitted affidavits with attestations stating that the notary had seen the originals. The Board doubted the veracity of such a statement because the originals were in the Board's possession. Ms. Faircloth also testified that the change in the Board's certification forms that took place subsequent to 1983 was an attempt to clarify and emphasize the Board's previous requirement that affiants have actual knowledge, by determining the basis and frequency of such knowledge. Petitioner took his blank application (except for Petitioner's signature) to Dr. Luis Manuel Rodriguez Molina who prepares licensure application documents for Cuba doctors seeking licensure in Florida. Molina translated and/or filled in all documents, obtained signatures, and then later had his son notarize those documents even though none was actually signed in the presence of his son, the notary public. When he submitted it to the Board, Petitioner knew that he had not signed his application in front of a notary public, and, therefore, Petitioner's affidavit portion of his application was knowingly false. The purported "personal knowledge" of each affiant and witness testifying as to Petitioner's five years of actual practice is that each between the years of 1971 and 1980 saw Petitioner at the equivalent of medical association meetings. These meetings were, however, also attended by students. Only Dr. Elesgaray could testify that he saw Petitioner in a practice setting twice each year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 13th day of January, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 13th day of January, 1987. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Ramon S. Santos, Jr., Esquire 1000 Ponce de Leon Boulevard, Suite 303 Coral Gables, Florida 33134 M. Catherine Lannon, Esquire Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Having listened to the testimony and considered the evidence presented in this cause, it is found as follows: Dr. Richard M. Dunham is licensed to practice psychology in the State of Florida by the State Board of Examiners of Psychology. Dr. Dunham is primarily employed as a tenured professor on the faculty of Florida State University. Dr. Dunham is not trying to build a private practice, and over a two or three month period may see three to four people professionally. In connection with this limited private practice he maintains an office in his home in Wakulla County and did so at all times pertinent to this cause. It was Dr. Dunham's usual practice to see patients for counseling in his home, rather than in his office on the University campus or some other place. In 1973, Dr. Dunham was acquainted, through his service in the United States Naval Reserve, with Dan Holsenbeck, then the husband of Judy Holsenbeck. He was likewise acquainted with Judy Holsenbeck. Dr. Glenn King, a clinical psychologist with the Auburn University Clinic, counseled Mrs. Holsenbeck on October 23, 1973, in Auburn, Alabama. Over the next five or six weeks, he saw her a total of five times for counseling, the last session being November 5, 1973. She related to Dr. King that she was concerned because she was sexually attracted to other men and she was unable, to achieve orgasm during intercourse with her husband. Further, she was depressed because she felt she could not be faithful to her husband. Dr. King counseled her and found her to have a passive aggressive personality disorder with depressive features. In early December, 1973, Mrs. Holsenbeck moved to Tallahassee, Florida. Through her husband's contact with Dr. Dunham, she met with him in his office on the FSU campus sometime around December 20, 1973, to discuss her psychological problems and to seek counseling. Dr. Dunham suggested several other psychologists whom she could consult, and, in the alternative, offered to take Mrs. Holsenbeck as a patient himself. Mrs. Holsenbeck requested Dr. Dunham to take her as patient, to which request he acceded. The psychological problems Mrs. Holsenbeck related to Dr. Dunham for which she sought counseling, involved her sexual activity and were similar in nature to those related to Dr. King at Auburn. After the initial meeting on or about December 20, 1973, Dr. Dunham saw Mrs. Holsenbeck as a patient on five separate occasions. These were as follows: December 27, 1973; January 1, 1974; January 17, 1974; February 6, 1974; and February 28, 1974, which meeting Mrs. Holsenbeck recalls occurring on March 6, 1974. Each of these meetings was a counseling session and took place at the home of Dr. Dunham in Wakulla County. It was alleged that in the course of the counseling sessions on January 17, 1974, and February 6, 1974, Dr. Dunham engaged in sexual intercourse and other sexual activities with Mrs. Holsenbeck. It was further alleged, that at the last counseling session, which occurred on February 28, 1974, Dr. Dunham made sexual advances toward Mrs. Holsenbeck, which were rebuffed. No one other than Dr. Dunham and Mrs. Holsenbeck were present in the home of Dr. Dunham at the time of the counseling sessions on January 17, 1974, and February 6, 1974. Similarly, no one other than Dr. Dunham and Mrs. Holsenbeck were present at the inception of the last counseling session. However, Mrs. Dunham, Dr. Dunham's wife of 7 or 8 years, came home during that counselling session. Mrs. Dunham was aware of Mrs. Holsenbeck's presence in the house and was not aware of any sexual activity or problem between Dr. Dunham and Mrs. Holsenbeck at that time. The counseling sessions on January 17, 1974, and February 6, 1974, took place at approximately 9:00 a.m. and lasted from one hour to one and one-half hours. The last counseling session occurred in the early evening. In December of 1973, and continuing through the date of the last counseling session, Mrs. Holsenbeck worked in a race relations program headed by Dr. Dunham at F.S.U. Mrs. Holsenbeck was very dissatisfied and eventually withdrew from it in the spring of 1974. On April 18, 1974, Dr. King contacted Mrs. Holsenbeck, at the request of her husband, whereupon Mrs. Holsenbeck alleged that Dr. Dunham had made certain sexual advances toward her during the course of his treatment of her. After a further meeting with Mrs. Holsenbeck, Dr. King told her that Dr. Dunham's alleged conduct was a serious breach of ethics and asked her if she would lodge a complaint against Dr. Dunham. Thereafter, Dr. King put Mrs. Holsenbeck in touch with Dr. Wallace Kennedy, also of the FSU faculty, and under whom Dr. King had studied. Dr. King had Mrs. Holsenbeck contact Dr. Kennedy so that her allegations might be conducted to the Florida State Board of Examiners of Psychology for action by them. There was evidence presented of a serious professional and, perhaps, personal disagreement between Dr. Dunham and Dr. Kennedy, who are both in the same psychology department at FSU. This disagreement arose long before December, 1973. Both the Petitioner, Florida State Board of Examiners of Psychology and the Respondent, Dr. Richard Dunham, agree that acts of the nature alleged constitute a serious ethical breach warranting suspension or revocation of a license to practice psychology. It was not proved by clear and convincing evidence that Dr. Richard Dunham made sexual advances toward, nor engaged in sexual activities with Mrs. Holsenbeck at any time. It is a very unwise practice on the part of Dr. Dunham to counsel patients in the privacy of his own home with no one else present, particularly when such a patient is a female manifesting sexual problems. Had Dr. Dunham been more circumspect concerning this practice, there would probably have been no opportunity for charges such as those presented herein.
Recommendation There having been no finding of fact that the Respondent, Dr. Richard Dunham, engaged in the alleged activities of misconduct, it is hereby recommended that the Florida State Board or Examiners of Psychology take no action against the Respondent and dismiss the charges herein. DONE and ORDERED this 26th day of September, 1975, in Tallahassee, Florida. CHRIS H. BENTLEY, 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 26th day of September, 1975. COPIES FURNISHED: Ronald C. LaFace, Esquire W. Dexter Douglass, Esquire P. O. Box 1752 Douglass & Powell Tallahassee, Florida 32302 Post Office Box 1674 Attorney for Petitioner Tallahassee, Florida 32302 Attorney for Respondent
The Issue The issue in this matter is whether Lauren Zaifert suffered a "birth- related neurological injury," as defined by section 766.302(2), for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Lauren was born to Petitioner Jacqueline Mayer on May 24, 2016. Lauren was delivered at Tampa General, in Tampa, Florida. 2 By requesting a deadline for filing post-hearing submissions beyond ten days after the Transcript was filed, the 30-day time period for filing the Final Order was waived. See Fla. Admin. Code R. 28-106.216. Petitioners Ms. Mayer and Jonathan Zaifert are Lauren's mother and father. Thanh-Xuan Le, ARNP, CNM, a certified nurse midwife, delivered Lauren at Tampa General. Ms. Le was a "participating physician" in the Plan at the time she rendered obstetrical services on May 24, 2016. See §§ 766.302(7) and 766.314(4), Fla. Stat. Dawn Palaszewski, M.D., assisted Ms. Le at Lauren's birth. Dr. Palaszewski was also a "participating physician" under section 766.302(7). Lauren was born full term weighing 2,980 grams (six pounds, nine ounces) at delivery. The parties do not dispute that Lauren suffered an injury at her birth, from which she continues to experience both mental and physical impairments. The parties do dispute the degree of Lauren's injuries, as well as the specific cause of her injuries. The statutory language that controls the determination in this matter is found in section 766.302(2), which states: "Birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation … caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. (emphasis added). Petitioners contend that Lauren's injuries were due to oxygen deprivation during her labor and delivery. Petitioners further assert that Lauren's injuries are "substantial." Therefore, Lauren's claim should be considered compensable under the Plan. Conversely, NICA disputes that Lauren's injuries are "substantial." NICA also maintains that the evidence does not establish that Lauren's injury was caused by oxygen deprivation. Consequently, NICA argues that Lauren did not suffer a "birth-related neurological injury," as defined in section 766.302(2), and Petitioners' claim should be denied. Lauren's Birth: Both Ms. Mayer and Mr. Zaifert were present at Lauren's birth. Just after Lauren was delivered, Petitioners heard a nurse sound a code over a radio. Quickly thereafter, five to six medical personnel rushed into the room. Mr. Zaifert recalled that it was "very clear" that something was not right. He immediately thought that "something traumatic" was happening. Lauren was rushed to the newborn intensive care unit ("NICU") shortly after she was born. Upon admission, Lauren's medical records note that she lay "supine in open crib, lethargic, unresponsive to exam." On May 25, 2016 (the day after Lauren was born), Ms. Le noted in Lauren's medical records: Delivery of infant's head was atraumatic. There was not difficulty delivering the shoulder. The infant did not cry at delivery. … NICU was called, meconium noted at delivery. [F]emale infant "Lauren" weighing 2980g with Apgars[3] 4 and 6 and was transferred to NICU for care. … Mom and baby stable. Lauren was discharged from Tampa General on May 31, 2016, seven days after her delivery. Her discharge summary provides a more detailed description of the circumstances surrounding Lauren's birth, reporting: The infant was floppy at delivery; the APGAR scores were 5 at one minute and 5 at five minutes, 5 at 10 minutes. … On exam, infant was noted to be neurologically devastated with no gag, corneal, or suck reflex. Infant was hypotonic. Due to neurologic status and unresponsiveness infant was transferred to the NICU. Birth was not traumatic. 3 An APGAR score is a numerical expression of the condition of the newborn and reflects the sum total of points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color. Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828, 834 (Fla. 2011). APGAR stands for appearance, pulse, grimace, activity, and respiration. Her discharge summary also provides an account of Lauren's time in the NICU, stating: The patient met 5/6 clinical criteria for moderate encephalopathy and due to concern for HIE,[4] she was started on a 72 hour cooling protocol. … The infant did have subclinical seizure activity after cooling began … . Infant's neurological exam improved throughout admission as she had a suck reflex, palmar/plantar reflexes, and improved tone. She still did not have complete moro reflex at the time of discharge. The discharge summary incorporated a "Patient Active Problem List," which included the following entries: Term birth of female newborn HIE (hypoxic-ischemic encephalopathy), moderate Neonatal seizure Lauren's neurologic assessment at her discharge recorded: Abnormal neurological exam immediately after birth, possible HIE. No birth trauma reported or concerns during the pregnancy. Infant met 5 of 6 clinical criteria for moderate encephalopathy. On the other hand, Lauren's neurological exam also reported that her condition improved throughout her hospital stay, and by the time of her discharge, her neurological status was noted to be alert and active, with a strong suck, intact plantar/palmar grasps bilaterally, and normal tone. An MRI performed on May 31, 2016, reported, "CEREBRAL ISCHEMIA, 7-day-old female with abnormal neurologic examination."5 The record then noted, "There is normal brain development, formation, and gray- white matter differentiation." 4 Hypoxic-ischemic encephalopathy. 5 Ischemia is a term for inadequate blood supply. On June 6, 2016, Ms. Mayer returned with Lauren to the hospital complaining of Lauren's "poor oral intake." An MRI obtained on June 6, 2016, reported: While there does appear to be some mildly decreased signal within the cerebellum on the ADC images, there is no signal abnormality seen on any additional sequences suggesting that this is likely artifactual. There is no mass, hemorrhage, or acute infarct. There is normal brain development, formation, and gray-white matter differentiation. The impression from the MRI was "normal." Lauren was discharged from her second stay at Tampa General on June 9, 2016. Lauren's Medical Condition: To support their position that Lauren suffered a qualifying "birth- related neurological injury," Petitioners rely on a number of entries in Lauren's medical records. Of primary significance to Petitioners are records that indicate that Lauren suffered hypoxic-ischemic encephalopathy, with seizures, at birth. As summarized by Ms. Mayer, Petitioners assert that Lauren experienced hypoxia (lack of oxygen in the blood) when she was born, which resulted in seizures that lasted until Lauren was approximately seven months old. Petitioners also point to medical records that describe Lauren's physical injuries as consistent with hypotonic cerebral palsy. Generally, cerebral palsy is a motor disability caused by damage to the brain before, during, or shortly after birth. "Hypotonic" cerebral palsy is characterized by low muscle tone. Ms. Mayer represented that Lauren was formally diagnosed with cerebral palsy in December 2020. Lauren has received regular physical and occupational therapy over the last four years. Pertinent entries from Lauren's therapeutic records offer the following information: In December 2017, Lauren underwent an occupational therapy evaluation. Ms. Mayer reported to the therapist that Lauren had been walking for about two months. However, Lauren was falling frequently and was having difficulty with motor skills, as well as displayed poor spatial awareness. A physical examination found that Lauren had "slightly decreased" muscle tone throughout and poor balance. On the other hand, her range of motion and strength were noted to be within normal or functional limits. Lauren was recommended for weekly occupational therapy. Physical therapy records from July 2019 state that Lauren had a "[f]lat foot pattern with intermittent toe/heel pattern." When running Lauren "exhibited decreased proximal stability resulting in excessive hip IR during swing phase bilaterally, excessive horizontal plane movement, and poor eccentric control." Following a physical assessment, the therapist recorded activity limitations including "global strength, static and dynamic balance, gait and running pattern, sitting posture, jumping, stair navigation." Lauren's records also register that Lauren sat up at seven months, crawled at 12 months, and walked at 17 months. The physical therapist noted Lauren's rehabilitation potential was "good." Occupational therapy records from August 2019 report that, "Lauren presents with significant delays in self-care skills affecting her daily independence." The occupational therapist detailed that "Lauren requires assistance to doff all clothing except shoes, and only moves arms or legs slightly to assist with donning of clothing." In addition, Lauren ate "a variety of foods, except only broccoli for vegetables; Drinks through a straw, however not from an open cup. … Attempts utensil use, however, will pick up food and push onto end of fork. Will bring loaded spoon to mouth, however, frequently spills." On the other hand, Lauren was able to independently blow bubbles and open a marker. Lauren also "completed a 9 piece puzzle with picture clues with ease." Developmental Behavioral Clinic notes from August 12, 2019, record a diagnosis of chronic hypoxic-ischemic brain injury. However, the examining physician remarked; "Counseled parent that findings were not clearly consistent with cerebral palsy, but establishing that diagnosis is outside my scope of practice." Physical therapy records from January 2020 report that Lauren "exhibits a 6 month delay in stationary tasks and a 18 month delay and locomotion tasks … secondary to decreased strength, stability, and gross motor skills including stair navigation and jumping." For participation restrictions, the physical therapist documented "global strength for stair negotiation and play on playground, static and dynamic balance for safe navigation of community, gait and running pattern for play with peers, sitting posture for joint integrity, jumping for play with peers, stair negotiation for exploration of environment, tricycle for play with peers." Once again, her rehabilitation potential was noted as "good." Following a January 17, 2020, occupational therapy visit, the therapist recorded that Lauren "has difficulty using a utensil during feeding. She is able to drink from an open cup." The therapist further reported that Ms. Mayer had concerns with Lauren's "distractibility," and that Lauren "struggles with maintaining attention to therapist-directed tasks." Lauren's rehabilitation potential was still characterized as "good." During a February 18, 2021, occupational therapy visit, the therapist recorded that Lauren: Presents with signs and symptoms of high complexity and performance deficits in fine motor coordination, strength, dexterity, attention, perception, problem solving, safety awareness, interpersonal interactions, habits, behaviors, and coping strategies which impact activity participation and functional performance indicating skilled occupational therapy treatment is indicated to address these deficits. During the examination, Lauren produced a writing sample "with large print and poor spacing." Further, while she needed "maximum assistance to attain a correct scissor grip," Lauren was able to "cut a sheet of paper in half without assistance but with fair coordination." She also scored within her age limit in fine motor and visual skills testing. During a February 2021 physical therapy visit, the therapist commented that, "Lauren exhibits global strength deficits, impaired static and dynamic balance, atypical gait and running pattern, delayed gross motor skills, and poor jumping and coordination skills. These impairments may be related to Lauren's diagnosis of hypotonic cerebral palsy." Lauren's rehabilitation potential was again listed as "good." Lauren has also undergone several neuropsychological evaluations since her birth. Pertinent entries record the following: In December 2020 and January 2021, Lauren's overall cognitive functioning was evaluated. Progress Notes from December 16, 2020, list findings "consistent with hypotonic cerebral palsy." In addition, the neuropsychologist found that, "Lauren's milestone development was delayed in gross motor, fine motor and speech/language skills." Lauren was noted to have been previously diagnosed with Specific Developmental Disorder of motor function, Phonological Disorder, and Fluency Disorder. The neuropsychologist, based on her own evaluation, also diagnosed Lauren with an Unspecified Mood Disorder. On the other hand, the neuropsychologist ruled out a diagnosis of Attention-Deficit/Hyperactive Disorder. The neuropsychologist also commented that Lauren had remained seizure free for four years and, as such, her current cognitive difficulties were not associated with seizures, and no clinically significant cognitive deficit was discovered. The neuropsychologist concluded: [R]esults from the tests revealed an average performance on tests assessing verbal comprehension, working memory and processing speed skills. Lauren's performance revealed mild deficits within visual spatial skills and fluid reasoning. However, her scores within tasks assessing visual motor integration and visual perception fell within normal limits. On February 3, 2021, Lauren was seen at Johns Hopkins All Children's Hospital regarding Petitioners' concerns with the delay in Lauren's gross motor development. A neurological examination recorded that Lauren was cooperative and followed commands well. Her speech was clear and language was normal. Lauren was able to draw people and objects and name their parts. The medical provider ultimately agreed that Lauren suffered from "mild hypotonic cerebral palsy." The physician commented: We do feel that in time, [Lauren] can continue to develop strength. She may continue to be somewhat uncoordinated or hypotonic, though we do feel she will develop all skills as time continues. Beginning in 2017, Lauren has also regularly received weekly speech therapy. Lauren's speech therapy records note concerns regarding speech language development, stuttering, intelligibility, and oral motor planning/sequencing. By October 10, 2019, her speech had improved. A Speech Language Pathology Progress Report documents that Lauren displayed age appropriate skills in "receptive language, play, [and] expressive language." Further, a speech therapy assessment from September 2020 reported: Lauren is able to use sentences that are age appropriate in length and complexity. She is able to ask and answer questions appropriately, and vocabulary is age appropriate, as well. Results of informal assessment indicate receptive and expressive language skills to be within normal limits. … Lauren was observed to have a moderate fluency disorder, which may be developmental in nature. Her speech language pathologist concluded: Overall, Lauren presents with language skills which are within normal limits. Articulation skills are currently mildly delayed. Fluency skills are currently moderately impacted. The pathologist also reported that Lauren's prognosis was "[g]ood for continued growth in speech/language and reading skills given recommendations are followed." Lauren's Current Condition: Ms. Mayer described Lauren's current mental and physical impairments, which both she and Mr. Zaifert consider to be "substantial." Ms. Mayer represented that Lauren's physical injuries include gross motor delay. She further stated that Lauren is "always clumsy" and experiences problems with coordination, fine motor skills, and grasping. Ms. Mayer relayed that Lauren has difficulty jumping and swimming. In addition, Lauren's "awkward gait" causes her to trip and fall several times a day. Ms. Mayer stated that Lauren has issues with daily living activities, such as caring for and dressing herself. Lauren will likely not play sports. Ms. Mayer further expressed that Lauren's mental injuries include a neurological language disorder, which causes speech issues. Ms. Mayer conveyed that the speech evaluation at Johns Hopkins resulted in a diagnosis of apraxia, which is a motor speech disorder that makes speaking difficult. Ms. Mayer claimed that Lauren suffers from a mood disorder, which makes daily living very difficult. Ms. Mayer advised that, despite her injuries, Lauren's speech and motor skills have improved with therapy. Currently, Lauren is able to jump, run, and swim without assistance. Lauren also enjoys playing on the stairs and the slide on the playground. Lauren also demonstrates imaginative play and can entertain herself. However, while Lauren's condition has improved since her birth, Ms. Mayer declared that Lauren will never be fully normal. Lauren will continue to need occupational, physical, and speech therapy for the foreseeable future. Finally, Ms. Mayer relayed that Lauren currently attends preschool. However, Ms. Mayer expressed that due to her developmental delays, Lauren has below average scores, and younger children were far ahead of her. Consequently, Lauren will likely start kindergarten a year behind. Ms. Mayer further stated that Lauren was evaluated by Hillsborough County Public Schools for language and literacy concerns. Lauren was found to have difficulty with participation and displayed poor effort and focus. Lauren also engages in impulsive behavior, which impedes her ability to problem solve and follow instructions. At the present time, Lauren is on an independent educational plan with the Hillsborough County school district. NICA's Position: NICA does not dispute Petitioners' claim that Lauren suffered an injury during her birth that has left her permanently impaired. However, NICA contends that Lauren's medical condition is not "substantial" enough to meet the statutory definition of "birth-related neurological injury" in section 766.302(2). Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Lauren's medical records and condition. NICA sought to determine whether Lauren suffered a "birth-related neurological injury," as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Lauren experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Lauren permanently and substantially mentally and physically impaired. Dr. Willis performed a forensic review of Lauren's medical records and noted the following: The mother was admitted to the hospital at 39 weeks gestational age in active labor. * * * Delivery was by spontaneous vaginal birth and stated to be atraumatic. … Despite being described as "neurologically devastated" at birth, the arterial cord blood gas was reasonable … . Cooling protocol was initiated due to suspected hypoxic ischemic encephalopathy (HIE). NICU admission evaluation noted the baby to be unresponsive, hypotonic and with no gag or suck reflex. * * * The initial EEG was consistent with diffuse encephalopathy and seizure activity. Clinical seizure was also noted. MRI on DOL 7 had non- specific abnormal signals in the cerebellum, possibly related to HIE vs artifactual. * * * In summary, spontaneous vaginal delivery at term was noted to be atraumatic. The baby had low Apgar scores of 5/5/5, but a reasonable cord blood pH of 7.15, suggesting the newborn depression was not related to oxygen deprivation at birth. The initial EEG was abnormal with diffuse encephalopathy, but MRI was essentially normal. Based on his review of the medical records, Dr. Willis opined that, "There was no obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery, or the immediate post- delivery period. Although the child was subsequently found to have global developmental delay, this does not appear to be birth related." NICA also introduced (via deposition) the testimony of Dr. Bello- Espinosa. Dr. Bello-Espinosa reached the same conclusion as Dr. Willis that Lauren did not suffer injuries that qualify her for inclusion in the NICA Plan. Dr. Bello-Espinosa reviewed Lauren's medical records, as well as conducted an independent medical examination on December 11, 2020, which included a comprehensive neurological examination. Dr. Bello-Espinosa's examination occurred when Lauren was approximately four and one-half years old and lasted approximately 40 minutes. Following his examination, Dr. Bello-Espinosa prepared a report, in which he recorded: Lauren was quite alert and interactive. She smiled and tracked. She had great attention. She grabbed objects and toys with both hands without difficulties. She had a dysfluent speech but no drooling. She following directions appropriately for her age. * * * On the motor exam: She had mildly decreased tone of her arms and legs, but the axial tone was normal. … No tremors, or myoclonias were present. Here strength was 5/5. She was able to sit, walk on her own power without difficulties. * * * Gait: She walked with a narrow base. The [sic] was no ataxia, or abnormal tiptoe walking. She walked with mild inversion of her left toe. When I asked [her] to run along the hallway, she ran spontaneously, without falling. Her running was mildly asymmetric with asymmetric arm swinging and slight left foot dragging. Summarizing his findings, Dr. Bello-Espinosa wrote: Lauren comprehensive neurological examination today shows mild dysfluency of speech, but normal receptive language, mild non-specific hypotonia, a mild clumsy gait, but no major neurological sequelae. She does not have evidence of brain dysfunction, no evidence of abnormal upper or lower motor neuron signs, nor extrapyramidal signs, and no signs of cerebellar dysfunction. She does not have remote symptomatic seizures. Dr. Bello-Espinosa concluded, "The prognosis of full recovery is excellent. Lauren has a normal estimated life expectancy." Dr. Bello-Espinosa then opined: In reviewing all the available documents, there are no impairments consistent with an injury acquired due to oxygen deprivation or mechanical injury occurring during labor, delivery or the immediate post-delivery period. Considering the clinical presentation, I do feel that there is no evidence to recommend Lauren is included in the NICA program. Regarding the degree of Lauren's injuries, in his deposition, Dr. Bello- Espinosa opined, within a reasonable degree of medical probability, that Lauren "did not have a substantial impairment," either mentally or physically. Expanding on his medical opinion, Dr. Bello-Espinosa commented that the word "substantial" is not a specific term he uses in his clinical practice. Dr. Bello-Espinosa explained: We would use the term severe or catastrophic[,] so she did not have any of those … neither severe neurological outcome were present. On the other hand, Dr. Bello-Espinosa acknowledged that Lauren received an early diagnosis of hypoxic-ischemic encephalopathy, which he defined as "a lack of oxygen to the brain and lack of blood supply to the brain." However, Dr. Bello-Espinosa did not believe that the medical records he reviewed confirmed that Lauren experienced HIE as a result of something related to her labor or delivery. Specifically, Dr. Bello-Espinosa testified that Lauren did not have MRI or EEG findings that indicate HIE. He also noted that Lauren did not have arterial blood gas changes or other systemic changes that would point to HIE. Dr. Bello-Espinosa was also cognizant that Lauren's medical records included potential "indicators" of some form of neurological injury. He recognized that Lauren was noted to have hypotonia (low tone) and seizures in the NICU. She also had no gagging or sucking reflex, and her speech was "not as fluent as it should be." He further commented that Lauren's Apgar scores of 5/5/56 were "abnormal." In light of these statements, Dr. Bello- Espinosa conceded that Lauren "may not be 100 percent of what we suspect at development for [her] age." He further commented that Lauren would likely benefit from ongoing occupational, physical, and speech therapy in the future. However, Dr. Bello-Espinosa stated that children who experience HIE at birth are not automatically left with permanent and substantial impairments and can live normal, healthy lives. Dr. Bello-Espinosa was further aware that a neurologist diagnosed Lauren with hypotonic cerebral palsy, which he explained causes a child to have "decreased tone of the arms or the legs, as well as the trunk as a result of the injury to the brain." However, despite recognizing the "possibility" that Lauren's injuries are due to a neurological deficit, Dr. Bello-Espinosa firmly characterized Lauren's hypotonia as "mild," not moderate or severe. Additionally, while he "respected" the neurologist's findings, Dr. Bello- Espinosa expressed that in his personal opinion, Lauren does not suffer from cerebral palsy. Following his independent medical examination, Dr. Bello- 6 A score of five out of ten at one minute after birth, five minutes after birth, and ten minutes after birth. Espinosa reported that Lauren followed directions appropriate for her age, had good attention, and ran without falling. Based on his observation, Dr. Bello-Espinosa determinedly expressed that Lauren "does not have a substantial physical impairment." The evidence adduced at the final hearing reveals no medical opinions disputing the findings and impressions of Dr. Willis and Dr. Bello-Espinosa. Their conclusions are credible and are credited. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Lauren suffered a "birth-related neurological injury," as defined in section 766.302(2). While Lauren's medical records show that she did experience some injury at the time of her birth, the evidence does not support a finding that Lauren has sustained an injury to her brain or spinal cord that has rendered her "permanently and substantially mentally and physically impaired."7
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED: 1. Petitioners' Petition for compensation under the NICA Plan is DENIED, with prejudice. DONE AND ORDERED this 20th day of October, 2021, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2021. COPIES FURNISHED: (via certified mail) Amie Rice, Investigation Manager Consumer Services Unit Department of Health 4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275 (Certified No. 7020 2450 0000 1058 5236) Kim Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (Certified No. 7020 2450 0000 1058 ) Jacqueline Mayer 15608 Starling Water Drive Lithia, Florida 33547 (Certified No. 7020 2450 0000 1058 5274) Jonathan N. Zaifert 1580 West Cleveland Street Tampa, Florida 33606 (Certified No. 7020 2450 0000 1058 5243) Simone Marstiller, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (Certified No. 7020 2450 0000 1058 5250) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (Certified No. 7020 2450 0000 1058 5267) Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317 (Certified No. 7020 2450 0000 1058 5281) Brooke M. Gaffney, Esquire Smith, Stout, Bigman & Brock, P.A. 444 Seabreeze Boulevard, Suite 900 Daytona Beach, Florida 32118 (Certified No. 7020 2450 0000 1058 5298)
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
