The Issue The issue presented for decision herein is whether or not Respondent's license as a Physical Therapist should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 486, Florida Statutes, as is more particularly set forth hereinafter and which is contained in a Second Amended Administrative Complaint filed December 12, 1986.
Findings Of Fact Respondent, Steven R. Bernstein, is and at all times material, was a licensed physical therapist having been issued license number PT 0002304. (Stipulation) Respondent maintained two separate offices in Fort Lauderdale: 4580 North State Road 7, Suite K, and 2951 Northwest 49th Avenue, Suite 308. (Stipulation) From March 1981 to March 1983, Respondent employed Kathy Schillace as an aide at both of his offices. At no time was Schillace licensed as a physical therapist or a physical therapist assistant. (Stipulation) Schillace's duties included giving treatments to patients such as electrical stimulation, range of motion exercises and ultrasound. To perform these duties, Schillace reviewed patient charts and determined what procedures were needed based on notations which had been recorded by Respondent or one of his licensed physical therapists employed in one of the two offices. Schillace received on the job training from Respondent and Susan Trider, a licensed physical therapist, on how to operate the equipment. Susan Trider supervised Schillace during most of her employment with Respondent. Susan Trider worked for Respondent from November 16, 1981 thru June 21, 1982. Trider was licensed in Florida by endorsement on June 3, 1982. Trider was licensed in Massachusetts in April 1980. (Petitioner's Exhibit 4) From April 1982 to May 1983, Respondent employed Patricia Sears as an aide at both of his offices. At no time was Sears licensed as a physical therapist or a physical therapist assistant. (Stipulation) Sears routinely performed treatments on patients with electrical stimulation, range of motion and ultrasound exercises. Although Sears felt that she did not receive adequate training to do the treatments she performed for patients, it is found that Sears received adequate training and there were ample licensed supervisory personnel on hand to answer any inquires or provide the needed assistance. As example, it is alleged that based on the inadequate training and lack of supervision that Sears received, she burned a patient with the electrical stimulation machine. Upon review of the testimony concerning that incident, it is found that Sears was working under the supervision of an employee of Respondent, Paula Allia, a licensed physical therapist. (Petitioner's Exhibit 1, pages 12, lines 21-25; page 13 lines 1-4). Respondent had a policy of requiring licensed physical therapists to be on the premises at all times while aides were administering treatment to patients. The training included reviewing contra-indications, the indications, what procedures the equipment was capable of doing, reviewing the operating manuals and explaining the various equipment including hands-on training by licensed personnel. (TR 76-77) Prior to administering any procedures to patients, the aides were given a training exam and they had to demonstrate their abilities by passing the exam and by providing treatment to the licensed personnel. Respondent endeavors to insure that the aides were adequately trained by duplicating the training program that he received while in school to become licensed. (TR 77, lines 23-25) After they were trained, the typical case would be that the aides would only perform procedures diagnosed by a licensed physical therapist. While performing the procedures, licensed therapists were on the premises throughout the period during which the procedures were being administered. (TR 78-79) The procedures that were performed by the aides were procedures ordered by private physicians and all patients of Respondent's were referred from private physicians. Respondent constantly checked the administration of procedures by licensed personnel. (Testimony of Fran Wade, TR 97-98. Testimony of Susan Trider, TR 104) During times material herein, the procedures that Respondent's aides performed were the typical procedures engaged in by aides at other hospitals and private physical therapists in South Florida. (Testimony of Todd Williams, (TR 116-117) Respondent's offices were small and it was possible to hear communications between the patients, aides and the licensed physical therapist constantly monitored the treatment modalities administered by the aides. (Testimony of Respondent, R 92) In the opinion of Paul Hughes, an expert physical therapist, a physical therapist actively involved in the treatment or who is in the immediate area to provide supervision to an aide, is engaged in an acceptable practice in Florida. (TR 39) The testimony of other licensed physical therapists herein support Respondent's position that the treatment modalities that Respondent allowed his aides to administer were the type modalities which were considered acceptable by the local community. (Testimony of Diane Siweck, Sue Chestnut, Todd Williams and Fran Wade).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 29th day of June 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of June 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Hubert, Esquire Paragon Center Suite 512 2400 East Commercial Boulevard Fort Lauderdale, Florida 33308 Dorothy Faircloth, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings T. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
The Issue Whether the Petitioner committed the violation alleged in the Administrative Complaint dated April 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity charged with the responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Whitney was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 4840. Dr. Whitney's address of record is 1011 North Federal Highway, Unit 106, Hallandale Beach, Florida 33009. Dr. Whitney has been a licensed chiropractic physician in Florida since January 1985 and has never had disciplinary action taken against his license. On or about September 7, 2001, Williston Orthopedic Rehab, Inc. ("Clinic"), opened in Williston, Florida. Dr. Whitney was the medical director of the Clinic; Robert Andrews was the owner of the Clinic. Mr. Andrews had worked with Dr. Whitney in his chiropractic practice for more than 10 years. A sign was erected in front of the Clinic identifying the facility and the services provided. Dr. Whitney's name, "Dr. Robert Whitney," was prominently shown on the sign, and he was identified as "Medical Director." The services provided by the Clinic, as shown on the sign, were as follows: Automobile Accidents - Injuries Work Related Injuries Physical Therapy Alternative Medicine Chiropractic Care Massage On or about September 7, 2001, several photographs were taken of Dr. Whitney and others standing in front of the sign. The photographs appeared in the September 13, 2001, edition of both The Williston Pioneer newspaper and of the Williston Sun Suwannee Valley News newspaper, together with articles about the new Clinic, its staff, and the services offered. Dr. Whitney was identified in one article as a "Doctor of Chiropractic," and Mr. Andrews was identified in the same article as the "practice administrator." Dr. Whitney had no ownership interest in the Clinic and had no role in the administration of the Clinic. His primary duty as medical director was to review charts, and he worked at the Clinic part-time. Mr. Andrews ordered the sign that was placed in front of the Clinic, and Dr. Whitney was not consulted about the information that was to be placed on the sign or asked to approve the contents of the completed sign. Dr. Whitney did not see the sign prior to arriving at the Clinic on or about September 7, 2001, to have his photograph taken for the newspaper stories. As soon as Dr. Whitney saw the sign, he notified Mr. Andrews that it failed to identify him as a chiropractic physician. Dr. Whitney immediately told Mr. Andrews to have the sign modified to include the designation "D.C." after his name. Mr. Andrews agreed to modify the sign, but he failed to have the sign corrected. The sign remained in front of the Clinic for several weeks before it was removed. Dr. Whitney left his position at the Clinic several weeks after he asked Mr. Andrews to correct the sign. The sign in front of the Clinic was misleading in that it did not, in any manner, identify Dr. Whitney as a chiropractic physician. He was identified only as "Dr. Robert Whitney," the "Medical Director" of the Clinic. The inclusion of "chiropractic care" among the services provided at the Clinic is not sufficient, standing alone, to provide notice to the public that Dr. Whitney is a chiropractic physician. Although Dr. Whitney did not disseminate or cause the dissemination of the misleading information in the sign, the sign remained outside the Clinic for several weeks with his apparent acquiescence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Robert Whitney, D.C., guilty of having violated Section 460.413(1)(d), Florida Statutes, and imposing a penalty consisting of a $500.00 administrative fine and a letter of concern. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 31st day of July, 2007.
The Issue The issue in the case is whether the Petitioner's application for licensure by endorsement as a physical therapist should be approved.
Findings Of Fact The Petitioner is an applicant for licensure as a physical therapist in the State of Florida. The Petitioner attended German educational institutions and graduated in 1994 from a "gymnasium," which appears to be the equivalent of a secondary school unit in the United States. After graduating from the gymnasium, the Petitioner then attended the physical therapy training program at the University of Nurenberg in Erlangen, Germany, from where she graduated in 1997. In 1998, the Petitioner applied for licensure as a physical therapist in the State of Colorado where she took and passed the National Physical Therapy Examination (NPTE) offered by the Federation of State Boards of Physical Therapy (FSBPT). The FSBPT's NPTE is the same examination used by the Respondent as the Florida licensing examination. The State of Colorado granted a license in 1998 to the Petitioner, presumably determining that, in addition to passing the exam, the Petitioner's education met the requirements of Colorado law. At all times material to this case, the Petitioner remained licensed as a physical therapist by the State of Colorado, but never practiced physical therapy in Colorado. The Petitioner moved to Florida in 2006 and began to inquire as to becoming licensed "by endorsement" as a physical therapist in the state. She eventually filed the application at issue in this proceeding. The Respondent has denied the Petitioner's application for licensure on the grounds that the Petitioner has failed to demonstrate that she has met Florida's minimum education requirements and to demonstrate that the licensure standards in Colorado are the equivalent of those in Florida. The evidence establishes that by operation of Florida Administrative Code Rule 64B17-3.003, the licensure standards between Colorado and Florida are equivalent. The evidence fails to establish that the Petitioner has met Florida's minimum education requirements. There was no credible evidence presented that the Petitioner's German education met the minimum education requirements for licensure as a physical therapist within the State of Florida. There was no evidence presented that would permit any determination or comparison of the quality of the Petitioner's German education and experience with that available from an accredited educational unit within Florida or the United States. The Respondent apparently relies on evaluations performed by credentialing agencies that review materials supplied by applicants and render determinations of educational equivalency. The Petitioner has apparently been unable to have her German education and experience evaluated by any credentialing agency, allegedly because of the nature of available records. The Petitioner acknowledged that no written comparative evaluation of her German education and experience has been completed. None have been supplied to the Respondent, and there was no evidence of any educational credentialing determination offered into the record of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice issue a final order denying the Petitioner's application for licensure. DONE AND ENTERED this 22nd day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2008. COPIES FURNISHED: Richard Linquanti, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susie K. Love, Executive Director Board of Physical Therapy Practice 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue for determination in this proceeding is whether Respondent's award of a contract pursuant to a request for proposal was arbitrary, capricious, or beyond the scope of Respondent's discretion.
Findings Of Fact Respondent, like other public school systems in Florida, is required to provide therapy services for students in need of such services. The demand for therapy services far exceeds the available therapists. The shortage of therapists is expected to worsen in the foreseeable future. Respondent historically has been unable to obtain a sufficient number of therapists by direct hire. Respondent has relied on contract services to obtain therapists. Such contract services have been provided by Professional Health Care Services ("Professional"), Cross Country Health Care ("Cross Country"), and Petitioner. In November, 1992, Petitioner was awarded a contract to provide occupational and physical therapy services for the remainder of the 1992-1993 school year. Petitioner provided the number of therapists required by Respondent in a timely manner. Virtually all of the therapists provided by Petitioner during the 1992- 1993 school year were foreign nationals. Some of the therapists had inadequate written and verbal communication skills in the English language. The lack of such communication skills created problems for the faculty, staff, and students, and was the subject of complaints by some parents. Some of the therapists provided by Petitioner during the 1992-1993 school year had no transportation to travel from school to school to perform their regular duties. Respondent determined that the supervision provided by Petitioner was inadequate in light of the communication and transportation problems peculiar to some of the foreign nationals Petitioner provided as therapists. When competent therapists are provided through contract services, Respondent typically attempts to hire such therapists as full time employees in the school system. Provisions in the contract between Petitioner and the therapists provided by Petitioner make it economically impractical for Respondent to hire competent therapists provided by Petitioner. The contract prohibits a therapist from competing with Petitioner (the "non- compete clause") and, alternatively, requires that Petitioner be reimbursed for costs incurred in obtaining the therapist's work permit and temporary license and requires that Petitioner be compensated based on a percentage of an individual therapist's salary. Neither the therapist nor Respondent typically have the funds necessary to make such payments in lieu of the non-compete clause. Petitioner does not permit Respondent to evaluate the therapists provided by Petitioner prior to accepting the therapists. Respondent has no opportunity to interview a therapist and make an independent determination of the therapist's communication skills or means of transportation. For the 1993-1994 school year, Respondent issued a request for proposals to provide 11 occupational therapists and 10 physical therapists who were permanently licensed or, alternatively, a combination of therapists and therapist assistants. The request for proposal was issued to approximately 85 providers. The only providers that responded were Petitioner, Cross Country, and Professional. Each company that submitted a proposal had a prior business history with Respondent. Respondent is familiar with the management personnel of each company. The successful proposal was selected based on three categories of information provided in each proposal. The categories were: therapist or agency qualifications; scope of services; and cost of services. Each responsive company was required to provide information in regard to: the company itself; the availability of therapists, their license status, and their supervision; the costs to Respondent; and the ability of Respondent to recruit the therapists provided by the company. Representatives from each of the three companies that submitted proposals were invited to be interviewed concerning their company's respective proposal. Each representative was interviewed by members of Respondent's administrative staff including Ms. Sue Hays, Supervisor of Occupational and Physical Therapy, Ms. Liz Argott, Director of Exceptional Student Education, Ms. Myrna Robinson, General Director of Special Instructional Services, Mr. Bill Borrer, Supervisor of Purchasing, and Ms. Mary Gillette, Director of Physical/Mental Health and Social Services. Each representative was asked questions that were applicable to all three companies as well as questions that were unique to the specific proposal of each company. The three main issues discussed with Petitioner concerned communication problems posed by foreign nationals, temporary licensing, and adequate supervision. Respondent had previously advised Petitioner to pursue its proposal even though Petitioner represented that virtually all of its therapists would be temporarily licensed. At the interview following the submission of proposals, however, Petitioner notified Respondent that Petitioner would agree to be a secondary vendor only if Petitioner had a minimum of 10 therapists working for the School Board. At the conclusion of the interviews, each of the companies submitting proposals was awarded a numerical score. Cross Country received a score of 410 points. Professional received a score of 331 points. Petitioner received a score of 296 points. Petitioner scored lowest among the three companies that submitted proposals. Cross Country recruits approximately 80 percent of its therapists within the United States. Cross Country provides transportation and housing for its therapists. Both Cross Country and Professional provide permanently licensed therapists. Petitioner's proposal was not the lowest in cost. Petitioner would have charged an additional $1.80 per hour for each therapist in order to provide the supervision required under the circumstances. Moreover, the difference between Petitioner's actual score and a perfect score of 30 for cost of services would not be sufficient to raise Petitioner's score by the amount needed to give Petitioner the second highest score. The matter was submitted to Respondent on July 20, 1993. The contract for primary vendor was awarded to Cross Country and the contract for secondary vendor was awarded to Professional. Respondent's decision was reasonable under the circumstances and was not arbitrary and capricious. Cross Country was the lowest and best proposal. Respondent followed its specifications in the request for proposals and properly utilized the evaluation system prescribed in the request for proposals. Petitioner would have provided temporarily licensed therapists in violation of the specifications in the request for proposals. Respondent did not implicitly waive the express requirement for permanently licensed therapist when Respondent advised Petitioner to pursue its proposal. The request for proposal also sought proposals for assistant therapists which Petitioner was willing to recruit. Even if Respondent was willing to accept temporarily licensed therapists from a secondary vendor, Respondent did not learn until the interview with Petitioner that Petitioner was unwilling to function as a secondary vendor unless Petitioner had a minimum of 10 therapists employed by Respondent. Respondent had a legitimate concern over the ability of therapists provided by Petitioner to communicate verbally and in writing in the English language. While the parties to this proceeding dispute the significance of that issue, Respondent would not have the right to interview prospective therapists and make an independent determination of the ability of the therapist to communicate at a level necessary to provide effective services in the school system. For the same reason, Respondent had no way to make an independent determination of whether a prospective therapist had adequate transportation to perform the services required by Respondent. Respondent historically has been unable to obtain a sufficient number of therapists through direct hires. Respondent was effectively precluded by the terms of the contract between Petitioner and the individual therapists from hiring competent therapists in permanent positions within the school system. The demand for therapy services far exceeds the supply of therapists. The shortage of therapists is expected to worsen in the foreseeable future. The ability to hire competent therapists as permanent members of the staff is a reasonable and legitimate factor for Respondent to consider in determining the highest and best proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's written formal protest. RECOMMENDED this 29th day of September, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4486BID Petitioner's Proposed Findings Of Fact. 1.-3. Irrelevant and immaterial 4.-11. Accepted in substance Rejected as inconsistent with credible and persuasive evidence Accepted in substance Irrelevant and immaterial 15.-18. Accepted in substance Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence 21.-22. Accepted in substance 23.-27. Irrelevant an immaterial Accepted in substance Rejected as inconsistent with credible and persuasive evidence 30.-31. Accepted in substance 32. Rejected for lack of credible and persuasive evidence 33.-35. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance 38.-41. Rejected as inconsistent with credible and persuasive evidence 42. Irrelevant and immaterial 43.-44. Accepted in substance 45.-46. Rejected as inconsistent with credible and persuasive evidence 47.-48. Irrelevant and immaterial 49. Rejected as inconsistent with credible and persuasive evidence 50.-51. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance, but credible and persuasive evidence showed that particular therapists who were foreign trained in fact caused some problems for Respondent Rejected as inconsistent with credible and persuasive evidence Rejected as inconsistent with credible and persuasive evidence Accepted in substance Respondents' Proposed Findings Of Fact. Accepted as part of preliminary statement Irrelevant and immaterial Rejected as recited testimony 4.-9. Accepted in substance 10.-15. Rejected as recited testimony Accepted in substance Rejected as recited testimony COPIES FURNISHED: Dr. Walter L. Sickles, Superintendent School Board of Hillsborough County Post Office Box 3408 Tampa, Florida 33601-3408 M. Teresa Harris, Esquire Post Office Box 90 St. Petersburg, Florida 33731 W. Crosby Few, Esquire Few & Ayala 109 North Bush Street, Suite 202 Tampa, Florida 33602 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida Sydney H. McKenzie General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
