The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, David James Pesek (Respondent) was licensed in the State of Florida as a nutrition counselor, having been issued license number NC 0000199 on February 21, 1990. Respondent’s last known address is 375 Paradise Lane, Waynesville, North Carolina 28786. At all times material hereto, Respondent was the owner of the Center for Effective Living (Center) in Deerfield Beach, Florida. On June 11, 1992, Patient A. S. presented to the Center for treatment of an eating disorder. Patient A. S. was overeating and wanted to lose weight. Patient A. S. was examined by Dr. Schocoff, M.D. that same day. Dr. Schocoff performed a brief physical examination of Patient A. S. Dr. Schocoff’s medical impression was that Patient A. S. suffered from a food addiction, food allergy, and aerophagia. At no time did Dr. Schocoff diagnose Patient A. S. as suffering from fatigue, hypercholesterolemia, or abnormal liver function. At no other time did Dr. Schocoff evaluate Patient A. S. At no other time was Dr. Schocoff involved in any way in the treatment of Patient A. S. Dr. Schocoff was employed by Respondent and the Center. Dr. Schocoff’s duties were to obtain patient history and perform physical examinations only. At no time did Dr. Schocoff give any opinion as to a patient’s health or perform any treatment of a patient or supervise patient treatment. On July 29, 1992, lab work was performed on Patient A. S., as ordered by Dr. Schocoff. The lab work consisted of blood and urine chemistry tests. The results of the tests did not indicate a need for nutritional supplements. Patient A. S. was referred to Respondent for a supervised nutritional and dietary program. On September 1, 1992, Patient A. S. presented to Respondent for the supervised program. After reviewing the blood test results, Respondent informed Patient A. S. that his liver was breaking down and that something had to be done for his liver problem immediately. Respondent had diagnosed Patient A. S. with suffering from a liver disorder. Patient A. S.’ medical records indicate that, among other things, the levels of three substances were tested by the blood test: two liver enzymes (GGT and SGPT) and cholesterol. The blood test results indicated that the levels of all three substances were elevated; however, increased levels of GGT, SGPT, and cholesterol are not conclusive indices of liver disorder. A nutrition counselor is not qualified to make a diagnosis of a liver disorder. It is below the acceptable standards of practice2 as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose a liver disorder. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately diagnosing Patient A. S. with a liver disorder. Respondent did not refer Patient A. S. to a physician for his suspected liver disorder. Instead, Respondent prescribed treatment for the disorder in the form of nutrients and dietary supplements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to refer a patient to a physician for diagnosis and treatment of a suspected liver disorder. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately attempting to treat Patient A. S. for a liver disorder. Eventually, Respondent suggested iridology analysis to Patient A. S. On October 28, 1992, Respondent performed iridology analysis on Patient A. S. Iridology is not an accepted diagnostic procedure by the Board of Medicine and Nutrition Council. Respondent treated and undertook treatment of a human ailment by means other than dietetics and nutrition practice. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to use forms of treatment and diagnosis which are not accepted. On October 28, 1992, Respondent also ordered testing of Patient A. S.’ nutrient mineral levels. The testing of Patient A. S.’ nutrient mineral levels was performed by Analytical Research Labs, Inc., on November 5, 1992. The test results were inconclusive, since they failed to reflect specific units based on amount/volume in which each mineral was measured, and no determination of nutritional recommendations could be effectively made, or, stated differently, the results did not support a need for nutritional supplements. Notwithstanding, Respondent ordered and sold to Patient A. S. multiple nutritional supplements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose and undertake to treat nutrient mineral deficiencies from inconclusive test results. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by diagnosing Patient A. S. with nutrient mineral deficiency from inconclusive test results. On November 13, 1992, as ordered by Respondent, food sensitivity testing was performed on Patient A. S. at Immuno Laboratories, Inc. The results of the test included foods that Patient A. S. should and should not eat, and Immuno Laboratories provided a diet for Patient A. S. Respondent’s assessment of the lab work performed by Analytical Research Labs and Immuno Laboratories was insufficient to determine the appropriateness of the diet provided for Patient A. S. Furthermore, Respondent failed to develop a personalized, specific diet plan for Patient A. S., which included a target weight and caloric intake requirements. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to develop a personalized diet plan which includes a target weight and caloric intake requirements. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by allowing someone other than himself to develop a diet for Patient A. S. and by failing to develop a personalized diet plan for Patient A. S., which included a target weight and caloric intake requirements. During Respondent’s treatment of Patient A. S., Respondent advised him that his addictive behavior was caused by nutrient imbalances. This advice from Respondent was false. During the first two months under Respondent’s care and treatment for an overeating disorder and to lose weight, Patient A. S. gained 17 pounds. During the three-month period from June to September 1992, Patient A. S. gained a total of 25 pounds. For the period from September 1, 1992 through February 22, 1993, Respondent submitted insurance claims for the services and treatment that he provided to Patient A. S., utilizing the medical diagnoses determined by Respondent. Moreover, Respondent filed the claims under the name of the Center's physician, Dr. Schocoff, with a signature purporting to be that of Dr. Schocoff. However, Dr. Schocoff was not aware that his name appeared on the claim forms; and neither did he sign the claim forms nor authorize Respondent to use or sign his name on the claim forms. Claims paid by the insurance company were paid to the Center, which was wholly owned by Respondent. An inference is made and a finding of fact is made that Respondent knowingly used Dr. Schocoff's name and signature on the claim forms without Dr. Schocoff's knowledge and authorization. Moreover, due to this finding of fact, it is further found that Respondent knew that he was fraudulently submitting claims to an insurance company for the payment of services provided by himself, not by a physician. By submitting claims for services provided to Patient A. S. under the name of the Center's physician, Dr. Schocoff, Respondent committed an act of fraud or deceit in the practice of dietetics and nutrition.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license as a nutrition counselor. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 15th day of January, 1999.
The Issue Whether Respondent failed to timely correct discrepancies noted during the survey of January 31, 1992 and, if so, what penalty is appropriate.
Findings Of Fact During the Annual Survey of Respondent ACLF on January 31, 1992 numerous discrepancies were found and at the exit interview Respondent was notified of these discrepancies and given a time frame in which to correct these discrepancies. In a follow-up inspection on April 29, 1992 more than one month later than Respondent was given to correct the discrepancies, the following deficiencies reported on the January 31, 1992 survey still existed. Residents were not provided the opportunity to plan the menus; Menus were not reviewed by a registered or licensed dietitian on a regular basis; The therapeutic diets provided did not document on the menu the food items which enable residents to comply with their therapeutic diet; and Respondent failed to have an annual nutritional review by a registered or licensed dietitian.
Recommendation RECOMMENDED that Willie Mae Johnson d/b/a Leisure Living be assessed an administrative fine of $250 each for the two violations for a total administrative fine of $500. RECOMMENDED this 3rd day of March, 1993, at Tallahassee, Florida. K. N. AYERS 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 3rd day of March, 1993. COPIES FURNISHED: Thomas W. Caufman, Senior Attorney Agency for Health Care Administration Office of Licensure and Certification 7827 North Dale Mabry Drive Tampa, Florida 33614 Willie Mae Johnson, Owner Leisure Living 401 S.W. 9th Avenue Mulberry, Florida 33860 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 John Knox Road Tallahassee, Florida 32303
The Issue The issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Jun Ping Hao, based on the manner in which she applied for and obtained her license.
Findings Of Fact The Respondent, who was born in China, came to the United States in 2009 and enrolled in the Healing Hands Institute for Massage Therapy (Healing Hands) in New Jersey. She completed a 600-hour course of study and graduated in March 31, 2010. In December 2010, she sat for and passed the examination administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The Respondent wanted to move to Florida and work as a licensed massage therapist. She was referred to the Florida College of Natural Health (FCNH) by a friend, who had a friend who had graduated from FCNH's Board-approved course of study and was licensed in Florida. The friend made an appointment for the Respondent, who traveled to FCNH's Pompano campus in late December 2010 or early January 2011. On arrival, the Respondent was escorted by someone who worked there to the office of the registrar, Glenda Johnson. The Respondent showed Johnson her Healing Hands transcript and her NCBTMB certificate, which Johnson reviewed. It is not FCNH's normal practice for the registrar to review transcripts to determine how much credit to accept from another school. This is normally done by the school's education department. However, Johnson appeared to have the authority to make the determination, and it was reasonable for the Respondent to believe that Johnson was authorized to do so. Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 600-hour course of study at Healing Hands and her NCBTMB certificate. Johnson helped the Respondent answer questions she could not understand. Everything in the application filled out and signed by the Respondent was true and correct at that time. Johnson then gave the Respondent a copy of the statutes and rules governing the practice of massage therapy in Florida. The Respondent spent about two hours in the registrar's office studying the statutes and rules. There was no instructor present. The Respondent did not ask anyone any questions about the statutes and rules, and she was not tested or graded on what she studied. When the Respondent finished studying the statutes and rules, she paid Johnson $830 in cash and left the application with her. The Respondent asked if she had to take any more classes, Johnson said she would let her know. She trusted Johnson, as the school's registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements). Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from Healing Hands, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida-specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present. Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986). The Respondent did not recall Johnson saying she would submit the Respondent's application to the Board. The Respondent left the application she had filled out and signed on Johnson's desk when she left. She never spoke to Johnson or returned to FCNH again. At some point after the Respondent left the Pompano campus, Johnson completed a transfer of credit form and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting the following hours from Healing Hands: 150 credit hours in the category Anatomy and Physiology; 100 credit hours in the category Basic Massage Therapy; 125 credit hours in the category Clinical Practicum; 76 credit hours in the category Allied Modalities; 15 credit hours in the category Business; 15 credit hours in the category Theory and Practice of Hydrotherapy; 4 credit hours in the category Professional Ethics; and 3 credit hours in the category HIV/AIDS Education. The form did not specify the course taken at Healing Hands. The form indicated that to qualify for licensure, the Respondent needed ten hours in the category Florida Laws and Rules and two hours in Medical Errors. Finally, the form showed the total credit hours for all schools, which indicated that the additional hours needed for licensure had been taken. At some point after the Respondent left the Pompano campus, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH, namely ten in Florida Statutes and Rules and two in Introduction to Allied Modalities), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 earned at FCNH). In fact, the Respondent did not take any classes at FCNH. At some point after the Respondent left the Pompano campus, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class in Prevention of Medical Errors and 20 hours of FCNH's Therapeutic Massage Training Program (Transfer of License) between January 6 and 7, 2011. In fact, the Respondent did not take FCNH's class in Prevention of Medical Errors or any other classes at FCNH. Johnson sent the Respondent's license application (with $155 fee), Healing Hands transcript, and NCBTMB certificate, together with the documents Johnson completed after the Respondent left the Pompano campus, to the Board. She did not provide copies to the Respondent. Based on those submissions, the Board issued the Respondent massage therapy license MA 61844. There was no evidence as to what happened to the balance of the cash paid to Johnson, but subsequent events suggest that Johnson probably pocketed it. The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson. In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never actually registered these individuals as students. Johnson was terminated from her employment as registrar for the school. Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board. In September 2012, it came to the Respondent's attention that the Department had concerns regarding the veracity of the Respondent's application for licensure. In October 2012, in an attempt to resolve the Department's concerns, the Respondent took and successfully completed Board-approved continuing education (CE) classes titled Living with HIV/AIDS (three CE hours), Massage Therapy Laws and Rules--Legal Update 2011 (ten CE hours), and Preventing Medical Errors (two CE hours). Later in October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent. During the time the Respondent practiced as a licensed massage therapist in Florida, there have been no complaints of any kind against her either by the Department or any consumer. During that time, the Respondent also became licensed as a massage therapist in Connecticut and Virginia. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Healing Hands and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors at FCNH. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 11th day of June, 2013. COPIES FURNISHED: Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health Bin C06 4052 Bald Cypress Way Tallahassee, Florida 32399-3256 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Martin P. McDonnell, Esquire Rutledge, Ecenia, and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32302-0551 Candace Rochester, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of massage therapy, in violation of section 480.0485, Florida Statutes; engaged in improper sexual activity, in violation of Florida Administrative Code Rule 64B7-26.010; or failed to appropriately drape a client, in violation of rule 64B7-30.001(5); and, if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Massage Therapy, is the state agency charged with regulating the practice of massage therapy within the state of Florida, pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Mr. Rodriguez is a licensed massage therapist within the state of Florida, having been issued license number MA 75735. He has been licensed since 2014. Mr. Rodriguez's current address and address of record is 812 Northeast 2nd Street, Apartment 1, Hallandale, Florida 33009. On or about January 9, 2017, Mr. Rodriguez was employed at Om'echaye Wellness & Fitness Center (Om'echaye) located at 1100 East Hallandale Beach Boulevard, Hallandale Beach, Florida 33009. On or about January 9, 2017, Patient R.A., a 24-year- old female, received a body scrub and a massage from Respondent. Patient R.A. had never received a massage at Om'echaye before, though she and her boyfriend lived close by and had eaten lunch at the Om'echaye restaurant a few times. It was on one of these earlier visits that she saw a special promotion for a body scrub and Swedish massage. She bought a gift card for the promotion for her boyfriend for his birthday. He was not enthusiastic about getting a massage there, however, so they decided that Patient R.A. would use the card herself. She reported what happened during the massage shortly after the incident. Her testimony at hearing was detailed and was consistent with previous accounts. These factors, along with her demeanor at hearing, made her testimony clear and convincing, and her testimony is credited. Patient R.A.'s appointment was at 6:15 p.m., and she arrived a few minutes early. The receptionist introduced her to Mr. Rodriguez. In the massage room, Patient R.A., having never received a body scrub before, asked Mr. Rodriguez whether she should leave her underwear on, as she had always done during massages she had received. He told her that no one did that, saying that otherwise it would be difficult to perform the body scrub. Patient R.A. asked if she should go under covers, but he directed her not to. He asked her to lie face up on the massage table and left the room so that she could undress. There were two 16" x 24" towels on the table, with which she covered herself notwithstanding his instruction, placing one over her lower body and one over her breasts. Mr. Rodriguez returned to the room and began to wet her skin with a hot towel. He asked her how she heard about Om'echaye. She told him about the gift card she had originally bought for her boyfriend's birthday, and that it was almost her birthday and that she was using the card. He learned that she was a foreign student from Germany studying psychology. He told her that his sister-in-law was a psychologist in Brazil. Patient R.A. asked him if he was from Brazil, and he told her no, that he was from Peru. He began the body scrub as they were talking. He applied a coconut and sugar body scrub solution, pushing her legs apart as he quickly worked up her legs, the back of his hands touching her vagina several times. As he bent her leg at the knee the towel slid onto her stomach, exposing her. He removed the towel completely, touched her vagina again, and then scrubbed the front part of her vagina with the body scrub. Mr. Rodriguez continued working up her body, removing the upper towel and, without asking her, began scrubbing her breasts. Afterwards, he removed the scrubbing solution from the front of her body with a hot towel. He then asked her to turn over. Mr. Rodriguez scrubbed the back body of Patient R.A. He scrubbed her buttocks and touched her anus with the side of his hands. After wiping off the body scrub solution, he told her that he would begin the Swedish massage. Mr. Rodriguez did not receive consent from Patient R.A. that she would remain undraped. He dripped hot oil onto Patient R.A. and rubbed it over her body, rubbing her buttocks, with his hands frequently against her anus, spilling oil down her buttocks. He then asked her to turn over. He massaged Patient R.A.'s front, including her breasts, and touched her vagina. He then began to rub his finger against her clitoris. Patient R.A. grabbed his wrist and told him not to touch her down there. He then returned his massage to her breast area and began to tickle her nipples. He moved his hands to her lower body several other times, touching her vagina. He came close to her clitoris, but did not touch her there again. Less clear and convincing was Patient R.A.'s testimony that Mr. Rodriguez pressed his penis against her elbow at some point during the massage. In cross examination, she stated: Q: Now, did you say in your direct testimony that there was an erect penis that touched you? A: At first was the--I believe so, but I'm not sure. That's what I said first. And even--then I mentioned I felt his genitals, but I don't think he was erect. I'm not sure. I felt it, but if he was erect-- Q: Okay. So something-- A: --I'm not sure-- Q: --something touched you, but you don't know whether it was his penis or his arm or-- A: His genitals. Patient R.A. stated at the hearing that she did not see Mr. Rodriguez touch her, but felt him touch her right arm. She did not remember how many times. Her testimony that Mr. Rodriguez pressed his penis against her was not clear and convincing. After the massage, Mr. Rodriguez asked Patient R.A., "How was it?" Patient R.A. responded that it was not a Swedish massage and that he needed to be careful about the way he performed massages. She asked him if he always did his massages like that. He responded saying, "That's how I do it with my clients. I don't know what other massage therapists do." She again said that he needed to be very careful with what he was doing. He apologized, saying, "Thank you for being cool." He gave her his business card. He offered to give her a deep tissue massage for free at his studio. He said that all of his clients come there because "it is too expensive here." Patient R.A. declined. The door to Om'echaye was locked because of the late hour that she was leaving, and Mr. Rodriguez had to open the door to let her out. At hearing, Patient R.A. said that she did not do more to prevent the assault because at first she refused to believe it was happening and later she was afraid. Patient R.A. was ashamed of herself when she got outside Om'echaye, thinking she should have stood up for herself more. At first, she was not going to tell anyone that she had been sexually assaulted, but ended up telling her boyfriend and going back to Om'echaye early the next morning and talking to the owner. She met with police later that day and gave them statements. She later notified the Department. Respondent denied Patient R.A.'s account in every material element. He testified that he never touched her vagina, anus, breasts, nipples, or clitoris, either intentionally or accidently. He testified that he acted within the scope of massage therapy practice and that no sexual misconduct occurred. He testified that she remained properly draped the entire time. He suggested that Patient R.A. made up the entire incident and that there was no video recording or witnesses.1/ Respondent also asserted that he would not have committed sexual misconduct against Patient R.A. because she was a female and he was gay, and so was not attracted to her. Curiously, Mr. Rodriguez sought to bolster this claim with testimony that he had performed some massage therapy at Ed Logan's, represented to be a gay resort, and that at one time he had advertised in a gay publication. Since the massage therapist-patient relationship does not appropriately involve sexual motivation of any kind--whether homosexual, bisexual, or heterosexual--it is not entirely clear why Mr. Rodriguez was suggesting that these activities, even had they been supported by additional documentary evidence of some sort, somehow confirmed his testimony. In any event, the assertion that he was gay, even if accepted, would not exonerate Mr. Rodriguez in light of the clear and credible testimony of R.A. in this case. The definition of sexual activity is not limited to physical contact intended to erotically stimulate the therapist, but also includes contact intended to erotically stimulate the patient, as well as contact which is likely to cause such stimulation, regardless of intention, as discussed further in the Conclusions of Law below. Respondent's touching of Patient R.A.'s breasts, nipples, anus, vagina, and clitoris, as described by Patient R.A., was direct physical contact likely to erotically stimulate either person or both. It was clearly outside the scope of practice of massage therapy. The touching described by Patient R.A. was sexual activity as defined under the rule. Patient R.A.'s testimony was clear and convincing and proved that Respondent used the therapist-patient relationship to engage in sexual activity. Patient R.A. testified that after reporting the incident, she "could not function anymore." She saw a poster saying "get a massage for $20 for 30 minutes" on campus, and she broke out in tears. She started counseling and soon after that was put on an antidepressant for a period of five months. Mr. Rodriguez testified that he depends on his massage business to make his living, that he is no longer working at Om'echaye spa, and that he has been painting buildings to pay his bills. There was no evidence to indicate that Mr. Rodriguez has ever had any prior discipline imposed in connection with his massage therapy license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Massage Therapy, enter a final order finding Ernesto Rodriguez in violation of section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7-26.010 and 64B7-30.001(5), constituting grounds for discipline under section 480.046(1)(p), Florida Statutes; imposing a fine of $2,500.00; revoking his license to practice massage therapy; and imposing costs of investigation and prosecution. DONE AND ENTERED this 30th day of August, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 30th day of August, 2017.
The Issue The issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Meihua Qiu, based on the manner in which she applied for and obtained her license.
Findings Of Fact The Respondent, who was born in China, came to the United States in 2001. She enrolled in Royal Irvin College in California to study massage therapy. She completed a 500-hour course of study and graduated in September 2007. The course of study included classes on HIV/AIDS and prevention of medical errors. In November 2007, she sat for and passed the examination administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The Respondent moved to Florida because she had family and friends there. One of her friends knew someone who had gone to the Florida College of Natural Health (FCNH), which is approved by the Board of Massage Therapy (Board). In December 2007, the Respondent went to FCNH’s Pompano campus to determine what was necessary for the Respondent to be licensed in Florida as a massage therapist. When the Respondent arrived at FCNH's Pompano campus on December 21, 2007, the receptionist directed her to see Glenda Johnson, who was the school's student coordinator and functioned as the registrar. The Respondent showed Johnson a copy of her Royal Irvin College diploma and transcript and her NCBTMB certificate, which Johnson reviewed. The diploma and transcript were not official, but the Department does not dispute that they are true and correct. It was not FCNH's normal practice at the time for Johnson to review transcripts to determine how much credit to accept from another school. This was normally done by the school's education department. However, Johnson was acting as the school’s registrar and appeared to have the authority to make the determination; and it was reasonable for the Respondent to believe that Johnson was authorized to do so. Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 500-hour course of study at, and diploma from, Royal Irvin College and her NCBTMB certificate. Everything in the application filled out and signed by the Respondent was true and correct at that time. Johnson also had the Respondent fill out and sign an FCNH enrollment agreement. Johnson signed the agreement, acting as school registrar, to enroll the Respondent at FCNH. The enrollment agreement included a statement that FCNH would evaluate collegiate and post-secondary training, military experience, or civilian occupations, and that the Respondent would be given appropriate credit, if criteria to measure the value of such training and experience were met, as determined by FCNH. Johnson then gave the Respondent a copy of the April 2003 edition of the statutes and rules governing the practice of massage therapy in Florida and materials for FCNH’s course in Prevention of Medical Errors and brought her to a classroom. There was an instructor in the classroom who explained the materials to the Respondent and answered her questions as she read and studied the materials for about three to four hours. There were other students and staff in the classroom with the Respondent but they were not studying the same materials as the Respondent and the instructor was directing his explanations and answers to questions to the Respondent, not the other students. The Respondent was not tested or graded on what she studied. When the Respondent finished studying the materials, Johnson told her that she had completed the course requirements. The Respondent did not have any reason to doubt Johnson, who was acting as the school’s registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic, secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements). Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from the Royal Irvin College, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida- specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present. Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986). Johnson had the Respondent pay $520 for FCNH's tuition and the Board's $205 license application fee. Johnson said she would file the application for the Respondent. The Respondent did not speak to Johnson again or return to FCNH’s Pompano campus after December 21, 2007. At some point in time on or after December 21, 2007, Johnson completed section III of the Florida license application, which is a transfer of credit form, and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting: 150 credit hours from Royal Irvin College in the category Anatomy and Physiology (for a course titled Musculoskeletal); 225 credit hours in the category Basic Massage Therapy and Clinical Practicum (for a course titled Neuromuscular Massage); 15 credit hours in the category Theory and Practice of Hydrotherapy (without specifying the course taken); 95 credit hours in the category Allied Modalities (for a course titled Sports Massage); and 3 hours in the category HIV/AIDS (for a course titled HIV/AIDS). The form indicated that to qualify for examination the Respondent needed to take ten hours in the category Statutes/Rules and History of Massage and two hours in the category Allied Modalities (for medical errors prevention) at FCNH. Finally, the form showed the total credit hours for all schools: 150 credit hours in the category Anatomy and Physiology; 225 credit hours in the category Basic Massage Therapy and Clinical Practicum; ten credit hours in the category Statutes/Rules and History of Massage; 15 credit hours in the category Theory and Practice of Hydrotherapy; 97 credit hours in the category Allied Modalities; and 3 credit hours in the category HIV/AIDS. At some point in time on or after December 21, 2007, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 credit earned at FCNH). At some point in time on or after December 21, 2007, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class titled Prevention of Medical Errors and 12 hours of FCNH's Therapeutic Massage Training Program (Transfer of License). Johnson sent the Respondent's license application (with $205 fee), Royal Irvin College diploma and transcript, and NCBTMB certificate, together with the documents Johnson completed on or after December 21, 2007. She did not provide copies to the Respondent. The Board received the submission on December 27, 2007. On December 28, 2007, the Board sent the Respondent a copy of her application, without the supporting documentation, and a letter saying the application was incomplete because her driver license number was omitted. The Respondent added the driver license number and re-submitted the application on January 7, 2008. On January 9, 2008, the Board issued the Respondent massage therapy license MA 52312. The Respondent paid Johnson by check. There was no evidence as to what happened to the balance of the money paid to Johnson. No canceled check was produced, and the evidence is not clear if the check was made payable to FCNH or to Johnson. Either way, subsequent events suggest Johnson probably pocketed the difference between the $520 paid and the $205 license application fee. The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson. In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never registered these individuals as enrolled students. Johnson was terminated from her employment as registrar for the school. Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as enrolled students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board. At some point in time, the Respondent became aware of the Department’s concerns about the manner in which she obtained her Florida massage therapist license. In October 2012, in an attempt to resolve the Department's issues regarding her license, the Respondent took and successfully completed a Board-approved continuing education (CE) course consisting of six hours of Ethics and Standards, two hours of Preventing Medical Errors, two hours of Laws and Rules Massage Practice, two hours of Pathology of Chronic Conditions for Massage Therapists, and Living with HIV/AIDS. In October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent. Between her licensure and the emergency suspension order, the Respondent practiced massage therapy in Florida. During that time, there were no complaints of any kind against the Respondent either by the Department or any consumer. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Royal Irvin College and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took 12 hours of classes at FCNH, including a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 17th day of June, 2013. COPIES FURNISHED: Candace Rochester, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Maggie M. Schultz, Esquire Rutledge, Ecenia and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32302 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health Bin C06 4052 Bald Cypress Way Tallahassee, Florida 32399-3256 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jennifer Cason is the owner/operator of Jennifer's Adult Care. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care; (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following: Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services; the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. Copies furnished to: Paula M. Kandel, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, FL 33614 William P. Murphy, Esquire 1500 Morgan Street Tampa, FL 33602 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
The Issue Whether Respondent Sabina Dahlberg's Massage Therapy violated Sections 480.46(1)(k) and 480.043(7), Florida Statutes (1993), whether Respondent Sabina Dahlberg violated Section 480.046(1)(k), Florida Statutes (1993), and if so, what penalties should be imposed.
Findings Of Fact Respondent Sabina Dahlberg (Dahlberg) holds a massage therapy license from the state of Florida, license number, MA0011128. Dahlberg owns Sabina Dahlberg’s Massage Therapy which holds a massage establishment license from the state of Florida, license number MM004301. In March, 1993, Dahlberg opened a vitamin store, Powerhouse Vitamins, at 732 S. Federal Highway, Dania, Florida. At that time Dahlberg was involved in professional body building and did not provide massage therapy services. Subsequent to the opening of the vitamin store, Dahlberg began to give massages in the rear of the building. There is a neon sign in the front window of the store which says "massages." Dahlberg filed an application with the Department of Business and Professional Regulation (Department) to obtain the necessary license for a massage therapy establishment. The license was issued to Sabina Dahlberg’s Massage Therapy located at the 732 South Federal Highway address. Between August 1993 and March 1994, Dahlberg employed licensed massage therapists Cynthia Williams and Dorothy Martin. Donna Booras, who was then under the apprenticeship of Dorothy Martin, also worked at Dahlberg’s establishment. In August, 1993, Ruth "Debbie" Cerminaro was also working at the establishment known as Powerhouse Vitamins. Ms. Cerminaro had a cosmetology license and was hired to perform facials, body wraps, and body waxing. Ms. Cerminaro did not have a license to give massages. Sometimes Dahlberg’s mother, Ursula Metzler, would help out at the store by answering the telephones and selling vitamins. At one time Ms. Metzler was considering becoming an apprentice in order to obtain a license to practice massage. Dahlberg testified that her mother never performed massages; however the pages from the store’s appointment book indicate that on March 3, 1994, Ursula had two appointments. In each massage room there is a sign which tells the customers, "Don’t even ask" for illegitimate acts. A customer could get a half-hour massage for $25 or a full hour massage for $45. The half-hour massage consisted of massaging the back and the back of the legs. The hour massage consisted of massaging the back, the front and back of the legs, the arms, the chest, and the colon. It was not unusual for customers to leave tips. In 1993 and 1994, Dahlberg had an arrangement with Dr. and Mrs. Spingarn to give the Spingarn’s massage therapy. Mrs. Spingarn had been involved in an accident and was receiving massage therapy as well as pool therapy from Dahlberg. For the most part, Mrs. Spingarn’s therapy was paid through workers’ compensation insurance. Dr. Spingarn was a dentist and at times Dahlberg would provide massage therapy to Dr. Spingarn in exchange for dental services. Dr. Spingarn would be given the massages at his office, the Powerhouse Vitamins’ location, or at his home. Because of the severity of her injuries, Mrs. Spingarn usually received her massage therapy at home, but she had also been given therapy at her husband’s office. When she received therapy at home, Dahlberg would massage her for about one and one-half hours and provide therapy in the swimming pool for about an hour. The home sessions would usually begin in the morning around ten or eleven o’clock and go into the afternoon. Around August 2, 1993, the Broward County Sheriff’s office received information alleging that Dahlberg and other employees at her business had engaged in sexual activity with customers at the business. Detectives Chris Percival (Percival) and Joseph Ventura (Ventura) of the Broward County Sheriff’s Office were assigned to conduct an undercover operation to determine if prostitution was occurring at Dahlberg’s place of business. On August 7, 1993, Ventura went to Powerhouse Vitamins and requested a massage. He was shown to a room in the back of the store, where he removed his clothes and placed a towel around his waist. A female named Debbie entered the massage room and told him to lay on his belly on the massage table. Debbie put lotion on her hands and began to massage Ventura’s back. Halfway through the massage, Ventura asked Debbie if she worked for tips and what could he get for a tip. Debbie wanted to know what he wanted, and he told her that he wanted to be taken care of. She told him to roll over on his back. Debbie wanted to know if Ventura was a cop and he assured her that he was not. Debbie began to rub lotion on his upper leg area. She removed the towel, poured lotion on his groin area, and began to masturbate Ventura. Ventura told her to stop that he was nervous. Debbie stopped and then resumed the back massage. A few minutes later the massage ended. Ventura paid her for the massage, including a tip, and left. On August 10, 1993, Detective Chris Percival (Percival) went to Powerhouse Vitamins for an appointment with Dahlberg for a massage at 4:30 p.m. During the massage, Percival told Dahlberg that he was impotent. About twenty to twenty-five minutes into the massage, Dahlberg applied lotion to her hands and began to masturbate Percival. Percival stopped her and told her that he thought that she had taken care of his problem. He paid her for the massage and included a tip. On August 10, 1993, Dahlberg gave a massage to Pat Spingarn at Mrs. Spingarn’s home. The message session started at ten o’clock and lasted for about one and one-half hours. They broke for lunch and then did pool therapy for an hour. The distance from Mrs. Spingarn’s home to Dahlberg’s establishment is approximately a 45 minute drive. There was sufficient time for Dahlberg to provide therapy to Mrs. Spingarn and return to her business establishment to give a massage to Percival beginning at 4:30 P.M. On the afternoon of March 2, 1994, Percival went to Powerhouse Vitamins for a massage with Sabina at 4:30. Sabina remembered him from his previous visit. Percival was shown to a room in the rear of the building where he disrobed. Sabina came in and began to give him a massage. About half way through the massage, Sabina told Percival to roll over face up. Sabina put a lubricant on her hands and massaged his penis. Once Percival achieved an erection, Sabina stopped. Percival paid her and left. Respondent’s Exhibit Three is a page from the business’s appointment book for March 2, 1994. There is a notation that Sabina was not working that afternoon; however, the notation was written over an erasure that appeared to be an appointment from 4:30 to 5:30 p.m.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent Sabina Dahlberg’s Massage Therapy is guilty of the violations set forth in Counts I and II of the Administrative Complaint in DOAH Case No. 94-01866 and revoking the massage establishment license of Sabina Dahlberg’s Massage Therapy and that a Final Order be entered finding that Sabina Dahlberg is guilty of the violation set forth in Count I of the Administrative Complaint in DOAH Case No. 96-1991, dismissing Count II of the Administrative Complaint in DOAH Case No. 96- 1991, and revoking the massage therapy license of Sabina Dahlberg. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1997. COPIES FURNISHED: Ruby Seymour Barr, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Jerome H. Shevin, Esquire 100 North Biscayne Boulevard, 30th Floor Miami, Florida 33132 Joe Baker, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issue for determination is whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact At all times material hereto, Miami-Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within Petitioner's district, pursuant to Article IX, Florida Constitution, and Section 230.03, Florida Statutes. At all times material hereto, Raynard W. Pasteur (Respondent) was employed by Petitioner as a school security monitor at Frank C. Martin Elementary School (Martin Elementary). Respondent began his employment with Petitioner on August 31, 1990, at Palmetto Middle School (Palmetto) as a school security monitor and remained at Palmetto until September 29, 1991. On January 27, 1994, Respondent began working as a school security monitor at Martin Elementary. At all times material hereto, Respondent was a member of the United Teachers of Dade (UTD). As a member of the UTD, Respondent was subject to the collective bargaining agreement (UTD Contract) between Petitioner and the UTD, as well as any Memorandum of Understanding between Petitioner and UTD. On February 2, 1998, a conference-for-the-record (CFR) was held with Respondent. In attendance at the CFR were Respondent; two of his union representatives; Isaac Rodriguez, Director of Petitioner's Office of Professional Standards (OPS); Dr. Jose Carbia, Petitioner's Director of Region V; and Pamela Siplin, Principal at Martin Elementary. The purpose of the CFR was to address Respondent's medical fitness to perform his assigned duties, to review Respondent's records, and to address Respondent's future employment status with Petitioner. Prior to the CFR, Jose Garcia, a clinical coordinator with Petitioner's Employee Assistance Program (EAP), performed an assessment of Respondent. After performing the assessment, Mr. Garcia determined that he had a duty-to-warn situation. The circumstances of a duty-to-warn situation demonstrate that serious bodily harm or injury may result or that there is a threat of serious bodily harm or injury. Having made such a determination, Mr. Garcia contacted his supervisor and discussed the duty-to-warn situation involving Respondent. Afterwards, Mr. Garcia contacted OPS. Mr. Garcia, his supervisor, and OPS subsequently contacted Dr. Carbia. Mr. Garcia informed Dr. Carbia that his (Mr. Garcia's) assessment of Respondent presented a duty-to-warn situation and that potentially bodily harm or injury could be inflicted against certain employees of Region V. Mr. Garcia did not discuss any details with OPS or with Dr. Carbia. An employee's participation in the EAP program is confidential and voluntary. Breach of the confidentiality by a clinical coordinator is permitted when a duty-to-warn situation presents itself in order to warn the affected persons of the threat of serious bodily harm or injury without discussing details of the situation. Under the circumstances, Mr. Garcia was permitted to breach the confidentiality afforded Respondent. A written statement dated February 2, 1998, explaining Petitioner's justification for requiring Respondent to submit to a medical examination, was presented to Respondent. The written statement stated, among other things, the following: This employer [Petitioner] has need to determine your fitness to carry out your assigned duties. Because of your exhibited behavior at the worksite as well as your self reported medical condition, this employer has reason to seek an immediate medical examination which will be considered relative to your future and continued employment with Miami-Dade County Public Schools. According to Ms. Siplin, the principal at Martin Elementary, Respondent's attendance was good and, in most instances, he was cooperative. She never reported any erratic or unusual behavior exhibited by Respondent. As observed by Ms. Siplin, Respondent's behavior at the worksite was acceptable and satisfactory. However, the behavior complained of referred to the Respondent's behavior at the work site as assessed by Mr. Garcia. A finding of fact is made that the written statement dated February 2, 1998, is a sufficient written statement justifying Petitioner's requirement for Respondent to submit to a medical examination regarding his fitness to carry out his assigned duties. At the CFR, a determination was made, among other things, that a medical fitness evaluation, i.e., a fitness-for- duty evaluation, was required. During the CFR, a representation was made to Respondent that Mr. Garcia had spoken to Respondent's psychiatrist because of Mr. Garcia's concern for Respondent and the staff at Martin Elementary; however, Mr. Garcia did not reveal any details of Respondent's assessment to OPS or the Director of Region V. The representation has no effect on the determination that a fitness-for-duty evaluation was required. A finding of fact is made that, regardless of the representation, a sufficient basis existed for such a determination and that it was reasonable and appropriate to require a fitness-for-duty evaluation of Respondent. A fitness-for-duty evaluation is an assessment by a psychologist or psychiatrist to determine whether an employee is psychologically competent to perform his or her job and whether that employee could potentially be a danger to himself or herself, co-workers, or students. The fitness-for-duty evaluation is designed to identify what it would take to get the employee back to work. The employee chooses the medical practitioner to perform the fitness-for-duty evaluation. According to the UTD Contract, when there has been a written statement of the need for an examination, the employee is to choose the medical practitioner from Petitioner's list of State-licensed physicians, psychologists, and psychiatrists. Respondent and his union representatives were provided a list of Petitioner approved psychiatrists and psychologists from which Dr. Larry Harmon, Ph.D., was chosen by Respondent. An appointment was made by OPS for Respondent with Dr. Harmon and was scheduled for February 6, 1998, at 9:00 a.m. At the CFR, Respondent was also placed in an alternative assignment at home during the process of the fitness-for-duty evaluation. Certain directives were given to Respondent during the CFR. The directives were as follows: Keep your scheduled appointment with Larry Harmon, Ph.D. Call Ms. Pamela Siplin at 238-3688, each work day between 7:30-7:40 a.m. and 3:50- 4:00 p.m. Be available at home during work hours for phone calls from your work site. Notify the work site of any appointments that would necessitate your absence from your alternative assignment (home) during work hours. Respondent was advised that failure to comply with the directives would necessitate a review by OPS for the imposition of disciplinary measures, including suspension, demotion or dismissal. At the CFR, Respondent was also provided a copy of Petitioner's Rule 6Gx13-4A-1.21, Employee Conduct and Rule 6Gx13-4C-1.02, Non-Instructional Personnel. Dr. Larry Harmon, Ph.D., conducted the fitness-for- duty evaluation which was administered for approximately nine hours over a three-day period, beginning on February 6, 1998. The evaluation consisted of Dr. Harmon reviewing background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; reviewing Respondent's job description; conducting a clinical interview with Respondent; performing psychological testing of Respondent; consulting with Mr. Garcia of EAP; and conferring with Respondent's parents. Dr. Harmon was unable to consult with Respondent's treating psychiatrist and psychologist. Routinely, Dr. Harmon requests that his patients sign a release and consent for the fitness-for-duty evaluation. The release and consent provides for the exchange and release of information and discussion with OPS, as well as EAP. Respondent signed Dr. Harmon's release and consent and, as a result, Dr. Harmon was able to consult with Mr. Garcia of EAP. Dr. Harmon also attempted to obtain a release from Respondent regarding the exchange of information with Respondent's treating psychologist, Dr. Eve McNanamy, Ph.D., and treating psychiatrist, Dr. Edgar Patino, M.D. In Dr. Harmon's opinion, the outside information from Respondent's treating psychologist and psychiatrist was essential to corroborate Respondent's self-report. However, Respondent refused to sign the release. Respondent did not "like" some of Dr. Harmon's methods or the way Dr. Harmon kept his office. Moreover, Respondent's psychiatrist, Dr. Patino, advised Respondent that he (Respondent) was not required to sign the release and that his (Respondent's) failure to sign could not be held against him. Having reviewed background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; having reviewed Respondent's job description; having conducted a clinical interview with Respondent; having performed psychological testing; having consulted with Mr. Garcia of EAP; and having conferred with Respondent's parents, Dr. Harmon formed an opinion as to Respondent's psychological condition. In his report dated March 1, 1998, (Report), Dr. Harmon made the following observations in his "Summary and Recommendations": With respect to diagnosis -- based on clinical interview, mental status examination, psychological test results, collaborative consultation, and review of related written records -- he [Respondent] presents, according to the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), with a probable as follows: Axis I: Clinical Disorders and Conditions Delusional Disorder (297.1), Persecutory Type [emphasis in original] Axis II: Personality Disorders Deferred. [emphasis in original] Axis III: Physical Disorders and Conditions Deferred. [emphasis in original] Given the information with which this psychologist was able to utilize, there is no clear evidence of any severe cognitive or affective disorder which would absolutely prevent him form currently performing any kind of work at all. However, because he was highly guarded and reluctant to share his current life circumstances, history, and current treatment recommendations, it is difficult to rule out the probability of a potential direct threat, especially to coworkers. With respect to his current position as a School Security Monitor II, the job requirements include, but are not limited to, both physical and interpersonal tasks . . . He appears to be capable of performing the physical requirements of the job . . . In addition, he is probably able to perform the non-interpersonal responsibilities of his job description . . . However, individuals with Delusional Disorder may have significant difficulties effectively and objectively performing complex interpersonal job tasks . . . His current symptoms -- clearly consistent with Delusional Disorder -- are likely to cause his thinking to be suspicious and potentially impair his judgement. In fact the DSM IV states that "People with persecutory delusions are often resentful and angry, and may resort to violence against those they believe are hurting them." Based on the above information, there appears to be a potentially significant risk of substantial harm to coworkers based on the following factors: The results of this individualized Fitness for Duty assessment . . . The results of objective psychological assessment, based on current psychological knowledge and assessment tools and techniques, suggest a potential for unpredictable and highly aggressive behavior. A review of prior history [criminal history]. . . A review of current information that suggests he is a current risk based in part on this evaluation as well as upon Jose Garcia's (of the M-D.C.P.S. E.A.P.) report that Mr. Pasteur recently called him and stated, among other comments, that "I am going to stop them." And "I'm just telling you that in case I have to do something." Finally, Mr. Pasteur reports that his psychiatrist's efforts to treat him with medication are obstructed by his unwillingness to follow his psychiatrist's recommendations and so it appears that efforts to reduce or eliminate his delusional thinking are not fruitful which, therefore, maintain the current level potential of significant risk of substantial harm to others. Therefore, because he is considered a potential direct threat and, thus, a significant risk of substantial harm to others, there is insufficient supporting information based on this assessment to clear him to return to work. Therefore, he is considered as the present time not fit for duty. [emphasis in original] His Delusional Disorder appears to seriously impair major life functions such as his social judgement, an essential requirement for his job which requires significant skills to interact effectively in interpersonal interactions. In his Report, Dr. Harmon continued with the following recommendations in his "Summary and Recommendations": In order for Mr. Pasteur [Petitioner] to be eventually cleared to return to work, it is recommended that M-D.C.P.S. support Mr. Pasteur's efforts to reduce and, hopefully, eliminate the probability that he will be a potentially direct threat to others. The following accommodations are recommended in order to assist him to get appropriate and effective treatment so that he may return to work: Provide Mr. Pasteur with at least one month of medical leave, consistent with medical leave benefits and policies for all other employees in his category, so that he may receive appropriate mental health treatment. It is recommended that he follow all of his psychiatrist's recommendations which are designed to reduce the symptoms of his Delusional Disorder to a sufficient extent that he is fit for duty. Participate in psychotherapeutic treatment with Eve McNanamy, Ph.D., his treating psychologist, and follow all recommendations designed to reduce the symptoms of his Delusional Disorder and improve his social judgement and interpersonal functioning to the extent that he is no longer a potentially direct threat and is able to function adequately in the School Security Monitor II position. In order to provide assurance that he is no longer a potentially direct threat and that he is fit for duty, that Mr. Pasteur provide me with a limited Release of Information for all of his mental health professionals which restricts the release of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to his Fitness for Duty determination. . . . Because of his likely resistance [to take prescribed antipsychotic medication], and in order to support that his continuation and increased frequency of psychotherapeutic and psychiatric treatment render him fit for duty, it is recommended that Mr. Pasteur sign a Release of Information which enables the Employee Assistance Program to communicate directly with his psychologist and psychiatrist to assist him in getting additional treatment sessions approved, etc. It is recommended that he be re- evaluated for fitness for duty after at least one month to determine the extent to which he is adhering to treatment recommendations, responding to treatment as evidenced by reduced symptoms, displaying symptomoloty which could impair his job performance, and free of symptoms which render him a potentially direct threat to others. Dr. Harmon's fitness-for-duty evaluation was forwarded to Petitioner. On March 3, 1998, a CFR was conducted to address Respondent's medical fitness for continued employment, to review the record, and to address Respondent's future employment status. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; a representative for Dr. Carbia; and Ms. Siplin. Respondent's father was allowed to attend but only as an observer. Prior to the CFR, Respondent was provided a copy of Dr. Harmon's Report and read it. After reading the Report, Respondent requested, and Mr. Rodriguez complied with the request, that no one at the CFR be allowed to review the Report. Respondent was advised that the focus of the CFR was Dr. Harmon's recommendations contained in the Report. During the CFR held on March 3, 1998, Respondent's father interrupted the CFR several times. Finally, Respondent's father was asked to leave the CFR and, unfortunately, the last interruption by Respondent's father caused the CFR to end. A Summary of the CFR dated April 30, 1998, was sent to Respondent. The Summary included, among other things, directives from Mr. Rodriguez which were that Respondent was required to comply with Dr. Harmon's recommendations and to comply within five (5) days of receipt of the Summary. The Summary also advised Respondent, among other things, that Mr. Rodriguez would verify his (Respondent's) compliance with the directives; that, as of March 16, 1998, Respondent's status on Petitioner's payroll record was on leave-without-pay authorized; that Respondent had applied for a medical leave of absence retroactive from March 17, 1998, through May 17, 1998, which complies with one of Dr. Harmon's recommendations; and that Respondent's failure to comply with the directives could lead to suspension or dismissal. By memorandum dated May 20, 1998, Respondent was notified by the executive director of OPS that clearance from OPS was required in order for his return to work. Respondent was further advised that a clearance conference was a requirement for his return to work; that he must schedule a clearance conference before May 27, 1998; and that failure to schedule and/or attend the clearance conference would result in disciplinary action. Respondent failed to comply with the directives given him in the Summary of the CFR dated April 30, 1998. As a result, a CFR was held on June 4, 1998, essentially to address his noncompliance with the directives. The attendees of the CFR on June 4, 1998, were Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and a representative for Dr. Carbia. One of the directives was for Respondent to comply with Dr. Harmon's recommendations; Respondent had complied with only one of the recommendations which was to obtain extended medical leave. At the CFR, among other things, Respondent was directed to make an appointment with Dr. Harmon by a date certain and to obtain a medical leave extension to cover his present absence and future absence to be recommended by Dr. Harmon. By memorandum dated August 4, 1998, from Mr. Rodriguez, Respondent was provided with a written Summary of the CFR held on June 4, 1998. The Summary also contained events that had occurred since the CFR. Mr. Rodriguez indicated in the Summary, among other things, that Respondent had provided notification that he (Respondent) was currently being treated by Dr. Patino; that Dr. Harmon's office had notified OPS that Respondent had scheduled an appointment and had later cancelled the appointment, but had not rescheduled the appointment; that Respondent failed to obtain approved leave and was on non- approved leave status; and that Respondent continued to be in noncompliance with the directives. Mr. Rodriguez again gave Respondent directives in the memorandum of August 4, 1998. The directives were as follows: You [Respondent] are advised of the availability of services from the District's [Petitioner's] support referral service. You must comply with Dr. Harmon's recommendations as stated in his report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leave of absence to cover the period from 5/19/98 through the necessary recommended time by Dr. Harmon. Mr. Rodriguez further advised Respondent in the memorandum that failure to comply with the directives would compel Petitioner to take further disciplinary action including dismissal. Respondent continued to fail to comply with the directives. As a result, a CFR was held on September 21, 1998. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and the personnel director for Petitioner's Region V, Clarence Jones. At the CFR on September 21, 1998, among other things, Respondent indicated that he had not complied with Dr. Harmon's recommendations and had not applied for and obtained an approved medical leave of absence. However, Respondent indicated that he had obtained an appointment with Dr. Harmon which was scheduled for September 25, 1998. Consequently, Respondent requested that he be allowed to keep his appointment with Dr. Harmon, obtain an approved medical leave of absence, and again attempt to resolve the matter after the appointment and a review of his medical evaluation report. Mr. Rodriguez did not agree to Respondent's request, but advised Respondent that his (Respondent's) matter would be forwarded for legal review and possible disciplinary action including suspension or dismissal. Even after the CFR of September 21, 1998, OPS attempted to give Respondent another opportunity to comply with the directives. By letter dated November 9, 1998, the senior executive director of OPS, Dr. Joyce Annunziata, notified Respondent that he was again being provided an opportunity to comply with the directives. The directives in the letter were as follows: You [Respondent] must comply with all of Dr. Harmon's initial recommendations as stated in his March 1, 1998, medical fitness for duty [sic] report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leaves [sic] of absence to cover absences starting May 19, 1998 through the present. (Leave application attached.) Dr. Annunziata further directed Respondent to comply with the above directives within three (3) working days of receipt of the letter. She advised and notified Respondent that his continued failure to comply would be considered gross insubordination and would lead to disciplinary action including dismissal. Respondent failed to comply with the directives given him by Dr. Annunziata. Because Respondent failed to schedule another appointment with Dr. Harmon to provide Dr. Harmon an opportunity to re-evaluate Respondent, Dr. Harmon's initial evaluation remained valid. Respondent remained unfit to return to work. Respondent had a right not to execute a consent and release of information for Dr. Harmon to contact and exchange information with his (Respondent's) treating psychiatrist and psychologist. Such an exchange of information would have immensely assisted Dr. Harmon, and in his Report, Dr. Harmon referred to such exchange of information as essential. Respondent had no understanding that his refusal to sign a consent and release would have such serious ramifications, i.e., dismissal proceedings. Even though lack of information from Respondent's treating psychiatrist and psychologist warrant finding Respondent unfit to return to work, Respondent cannot be disciplined for exercising his right to not execute a consent and release of information. Moreover, this Administrative Law Judge is persuaded that Respondent continued to believe that, as long as he was not refusing to be seen by Dr. Harmon and as long as he was being continually treated by his psychiatrist and psychologist, he (Respondent) could and would be permitted to reschedule his appointment with Dr. Harmon. Respondent did not appreciate the serious ramifications, i.e., dismissal proceedings, of not keeping his appointments with Dr. Harmon. Even at the hearing before this Administrative Law Judge, Respondent continued with his disbelief that failure to reschedule and keep the appointment with Dr. Harmon was such a serious course of action on his part. Respondent presented no medical evidence at hearing to contradict Petitioner's medical evidence and to demonstrate that he is medically fit to return to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Raynard W. Pasteur without pay, but not dismissing him from employment, and reinstating Raynard W. Pasteur under the terms and conditions deemed appropriate. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. Hearings Hearings ERROL H. POWELL Administrative Law Judge Division of Administrative 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 this 23rd day of July, 1999.
