Findings Of Fact Petitioner is the agency of the State of Florida responsible for the licensing and regulation of the practice of massage therapy. Petitioner also certifies those eligible to perform colonic irrigations in the State of Florida. Chapter 480, Florida Statutes, is known as the "Massage Practice Act". Section 480.033(6), Florida Statutes, defines the term "colonic irrigation" as follows: (6) "Colonic irrigation" means a method of hydrotherapy used to cleanse the colon with the aid of a mechanical device and water. Colonic irrigations can be performed by a licensed massage therapist only at a licensed massage establishment. Section 480.046(1), Florida Statutes, provides certain grounds for the discipline of licensed massage therapists, including the following: (1)(n) Practicing massage at a site, location, or place which is not duly licensed as a massage establishment, except that a massage therapist, as provided by rules adopted by the board, may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. Petitioner's Rule 61G11-30.001(1)(m), Florida Administrative Code, provides, in pertinent part, as follows: (1)(m) . . . a massage therapist may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show. . . . At all times pertinent to this proceeding, Respondent was licensed by Petitioner as a massage therapist and was certified by Petitioner to perform colonic irrigations. Respondent's massage therapist license number is 7954. Respondent placed an advertisement in the Yellow Pages of the 1993 telephone book for Miami, Florida, that advertised the following service on an outcall basis: COLON IRRIGATION WITH DISPOSABLES. Lexa Jones is licensed by Petitioner as a massage therapist and is certified to perform colonic irrigations. Ms. Jones teaches massage therapy in Fort Lauderdale, Florida. One of her students brought to her attention the Respondent's advertisement in the Miami Yellow Pages. Ms. Jones testified at the formal hearing that she called the number listed in the advertisement and talked to a woman who stated that she had placed the advertisement. Respondent is the person who placed the advertisement and Ms. Jones clearly believed that she was talking with the Respondent. Ms. Jones was unable to testify that the person with whom she talked by telephone was the Respondent. 1/ Based on the statements made to her by telephone and on the contents of the advertisement, Ms. Jones filed a complaint against Respondent with the Board of Massage. Mr. Charles Frear, an environmental inspector employed by Petitioner, investigated this complaint. On October 6, 1993, Mr. Frear inspected Respondent's home and interrogated her about the services she was performing. The Respondent told Mr. Frear that she had placed the advertisement in the telephone book, but that the service she was performing on an outcall basis was a "colon irrigation" and that she performed this service in hotel rooms. Respondent showed Mr. Frear an enema kit that Respondent said she used to perform the "colon irrigation." The kit, intended for one time use, was sterile and sealed in a plastic carton. The kit included an enema bag, a tube, soap, and lubricating jelly. Respondent told Mr. Frear that she believed that there was a difference between a "colonic irrigation" and a "colon irrigation" since the former involves a large machine that is used to regulate the flow of water while the latter uses an enema bag and a tube. An enema forces liquid into the colon by means of an enema bag and tubing. The injection of liquid through the anal canal and into the colon serves to remove fecal material and bacteria from the colon. A clean, hygienic area is needed for the administration of the enema and its subsequent evacuation on a toilet. There was no evidence that Respondent used any tool in performing her services other than the enema kit and water. Respondent asserts that the enema kit should not be construed to be a "mechanical device" as that term is used in defining "colonic irrigation" by Section 480.033(6), Florida Statutes. The term "mechanical device" as used in Section 480.033(6), Florida Statutes, is not defined by statute or rule. The American Heritage Dictionary of the English Language contains the following definitions pertinent to this proceeding. A "device" means "something devised or constructed for a particular purpose; especially a machine used to perform one or more relatively simple tasks." "Mechanical" means "of or pertaining to machines or tools." A "machine" is "any system, usually of rigid bodies, formed and connected to alter, transmit, and direct applied forces in a predetermined manner to accomplish a specific objective, such as the performance of useful work [or] a simple device, such as a lever, pulley, or inclined plane, that alters the magnitude or direction, or both, of an applied force. ..." A "tool" can mean "anything regarded as necessary to carry out one's occupation or profession." The enema kit is used to force water through a person's anal canal and rectum for the purpose of cleaning the colon. Based on the foregoing definitions and on the expert testimony presented, it is found that an enema kit is a mechanical device. It is further found that an enema is a form of "colonic irrigation".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and finds Respondent guilty of violating the provisions of Section 480.046(1)(n), Florida Statutes. It is FURTHER RECOMMENDED that the Petitioner issue to Respondent a letter of reprimand and fine her the sum of $500.00. DONE AND ENTERED this 29th day of December, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of December, 1994.
The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
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 The issues in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact On June 10, 2009, the Department issued Diamond license number MA 56376, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy have regulatory jurisdiction over licensed massage therapists such as Diamond. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).1 In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy.2 Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.3 At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- 32.003 (Oct. 30, 2007), which provided in pertinent part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.4 Regarding these required practices, section 1005.04, Florida Statutes (2008), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; Ensure that all advertisements are accurate and not misleading; Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule; Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and Publish and follow procedures for handling student complaints, disciplinary actions, and appeals. In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. * * * (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere——including from schools that were not Board-approved——could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.5 Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had actual authority to evaluate the transferability of credits and to execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. Ms. Johnson had begun working for FCNH in 1996, starting as a receptionist. In 2007, an anonymous complaint was made to the Board accusing Ms. Johnson——by then the school's registrar——and another individual of engaging in some kind of inappropriate conduct involving massage therapists or massage students. The complaint was forwarded to the CIE, which evidently notified the school, for FCNH opened an investigation into the matter. Ms. Johnson denied any wrongdoing, and FCNH ultimately closed the investigation after finding no evidence to the contrary. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination—— which the NCB administers——from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and that the same member of FCNH's administration had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied ever having taken money for doing so, explaining that she merely had been trying to help people. She claimed that she had acted alone. Ms. Johnson gave a written statement to FCNH describing what she had done.6 Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. In due course Ms. Wade notified the Board that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Diamond. Diamond was born in China and, at the times relevant to this case, was a citizen of China. In 2003, Diamond married an American citizen and immigrated to the United States, becoming a resident of Iowa. She later moved to Florida and after that to California, where——from July 30, 2008 to March 30, 2009——she attended Royal Irvin College. At the California school, Diamond successfully completed a 500-hour course of study in massage therapy. Soon after graduating from Royal Irvin College, Diamond took and passed the National Certification Examination for Therapeutic Massage and Bodywork. Diamond returned to Florida intending to work as a massage therapist. She found a position with a provider called Royal Oriental Massage. Before she could begin working, however, Diamond needed to obtain a Florida license. This meant——because Royal Irvin College was not a Board-approved massage school——that she needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. Researching Board-approved schools, Diamond learned about FCNH. On or about May 26, 2009, Diamond went to the Pompano campus of FCNH. A man whom Diamond identified only as her former boss accompanied her. At FCNH, where Diamond arrived during regular business hours, she was introduced to Ms. Johnson, the registrar. Diamond had not asked to see Ms. Johnson and had not met her previously. The evidence is wanting in completeness as to what happened next. Evidently Ms. Johnson advised Diamond that her Royal Irvin College credits could be transferred, one for one, to FCNH, and that such transfer credits, without more, would fulfill FCNH's conditions for the issuance of a diploma that would meet state licensure requirements; explained the process of applying for state licensure; and produced an application form, which Diamond's former boss filled out. Diamond signed the three-page application, which is dated May 26, 2009. The application which Diamond executed states, truthfully, that Diamond obtained her massage therapy certificate in March 2009 from Royal Irvin College, completing a 500-hour course of study; that Royal Irvin College is not Board approved; and that she had not attended an apprenticeship program. The evidence does not establish that any statement in the application was untrue or incorrect. Ms. Johnson took Diamond's application, together with Diamond's check, payable to the Department of Health, for the $205.00 license application fee. In addition, Ms. Johnson collected $418.98 in cash as the fee for handling the transfer of Diamond's credits. (Diamond did not have that much cash on hand, so her boss paid Ms. Johnson. Diamond later wrote a check for $418.98, payable to Royal Oriental Massage, to reimburse her boss.) Ms. Johnson signed a receipt for the $418.98 payment and handed it to Diamond. The receipt states that the money was for "Transfer of Lic." Ms. Johnson told Diamond that she (Ms. Johnson) would submit Diamond's application to the Department. Ms. Johnson did submit Diamond's application, as promised, along with other documents. The Department received the application on or about June 4, 2009. By letter dated June 10, 2009, the Department notified Diamond that her application was complete and that a license had been issued to her. One of the documents that Ms. Johnson sent to the Department in connection with Diamond's application was the Transfer of Credit Form. This form states that FCNH has evaluated and agreed to accept Diamond's 500 hours of credit from Royal Irvin College; it is signed by Ms. Johnson, as registrar, who certified "that the transcript credit for the . . . courses [applicant previously attended for credit] is acceptable credit from . . . Royal Irvin College." Ms. Johnson prepared and submitted this document on her own, without showing it to Diamond. Ms. Johnson also prepared, signed, and submitted to the Department an FCNH transcript showing that Diamond had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Ms. Johnson did not show this document to Diamond. Finally, Ms. Johnson prepared, signed, and submitted to the Department two Certificates of Completion reflecting Diamond's completion of: "12 Hours of Therapeutic Massage Training Program" and "2 Hours Prevention of Medical Errors." Ms. Johnson did not show these certificates to Diamond. Collectively, the credit transfer form, the transcript, and the certificates "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8). The several documents comprising Diamond's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Diamond testified credibly (and the undersigned finds) that she never saw the Transfer of Credit Form, FCNH transcript, or the certificates before the instant dispute arose. Diamond's testimony in this regard was corroborated by the Board's executive director, whose testimony, which the undersigned credits, revealed that applicants do not typically submit documents of this kind, which are, instead, usually sent directly from the schools. The evidence does not support a finding that Diamond misrepresented her educational attainments when she met with Ms. Johnson. The evidence does not support a finding that Diamond knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Diamond knew or should have known that FCNH, as the transferee school accepting her Royal Irvin College courses, would award her academic credit or credentials which she had not legitimately earned. To sum up Diamond's transaction with FCNH, she went to the Board-approved, state-licensed massage school on May 26, 2009, where she met with the registrar, Ms. Johnson, a member of the school's administration whom she had no reason to believe would deceive her. At the time, Diamond had been living in the United States for only about six years, and even at present, nearly four years later, she possesses relatively limited English language skills. It was reasonable under the circumstances for Diamond to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists. Moreover, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to evaluate transfer credits on behalf of FCNH. The evidence does not establish that Diamond was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Diamond gave Ms. Johnson false information. From Diamond's perspective, Ms. Johnson had apparent authority, at least, to accept Diamond's credits from Royal Irvin College and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Diamond has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although Ms. Wade testified at hearing that Ms. Johnson should not have awarded Diamond an FCNH Diploma based on Diamond's Royal Irvin College credits, FCNH has not initiated a legal proceeding to revoke or withdraw Diamond's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Diamond is without rights and privileges thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Diamond not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2013.
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."
