Findings Of Fact Background Respondent, Michael Guirgis Sedra, is now and was at all times material hereto a licensed physical therapist in the State of Florida, having been issued license number PT 0004299. During June 1990, respondent was under contract with Professional Health Care Services Agency to provide physical therapy services, and on June 24, 1990, was assigned to Humana Hospital of South Broward (Humana Hospital) to render physical therapy services in the absence of the assigned therapist. On such date, respondent arrived at the hospital at or about 8:00 a.m., and rendered services to approximately 20-24 patients. Included among the patients treated by respondent that day was R. I. (the "patient"), the complaining witness in the instant case. The patient was admitted to Humana Hospital on June 18, 1990, complaining of abdominal pain, primarily in the right lower quadrant radiating towards the back. The patient's initial diagnosis was stated to be abdominal pain, electrolyte imbalance, and diabetes mellitus, and her ultimate diagnosis chrolecystolithiasis, hepatomegaly with fatty infiltration, uncontrolled diabetes mellitus, hypertension, electrolyte imbalance, and degenerative joint disease of the right hip. During the patient's course of treatment at Humana Hospital, her physician entered an order on June 24, 1990, for physical therapy. Pursuant to such order, respondent visited the patient in her room, at some time between 10:00 a.m. and 12:00 p.m., and performed a brief examination. Following such examination, respondent advised the patient that he would return that afternoon to transport her to the physical therapy department to render the treatments ordered by her physician. These would be the first physical therapy treatments ever experienced by the patient. At 2:35 p.m., June 24, 1990, respondent transported the patient, by wheelchair, from her room to the physical therapy department, which was located downstairs and vacant at the time. Once the patient was on the treatment table, lying on her left side, respondent provided hot pack treatment for approximately 20 minutes and an ultrasound with electrical stimulation treatment for approximately six minutes to the patient's right side. The ultrasound treatment combines a form of deep heat with electrical stimulation, which produces a feeling of contraction and relaxation of the area to which it is applied. Here, because the patient's pain was located in the right hip area, such treatment was mostly applied to her sacroiliac joint (the tail bone) and right hip area. Following treatment, respondent returned the patient to her room between 3:00 p.m. and 3:15 p.m. There is no significant dispute regarding the foregoing facts, nor the propriety of the hot pack and ultrasound treatments rendered to the patient. Rather, respondent's evaluation and treatment was deemed not only within the prevailing standards of practice, but "top notch," by petitioner's expert. What is in dispute, however, is whether following the course of such treatments any improprieties occurred or, more specifically, whether respondent sexually assaulted the patient in the physical therapy room. The participants The patient, age 62 at the time in question, was born in Hungary, immigrated to the United States at age 29, and is a naturalized citizen. She resides in Hollywood, Florida, where she shares a home with her son and daughter-in-law, is retired, and has been divorced since 1980. The patient's formal education is limited to the eight years she attained in her native country; she contends she neither reads nor writes the English language; and she speaks the English language in a somewhat accented and broken manner. Her comprehension of the language, based on her testimony at trial and a review of the record, is, however, sound. Notwithstanding, her testimony regarding many material matters was conflicting and lacked candor. The respondent was born in Cairo, Egypt, on January 20, 1954, immigrated to the United States in or about 1982, and is a naturalized citizen. He resides in Lauderhill, Florida, with his wife and two daughters, 5 and 9 years of age, and has been licensed as a physical therapist in the State of Florida since August 1985. But for the pending charges, respondent has never been the subject of disciplinary action. He is articulate, genteel in manner, considered truthful and honest by those who know him, as well as competent, considerate and compassionate. The dispute To support its case, petitioner offered the testimony of the patient, who testified that on Sunday, June 24, 1990, respondent transported her from her room, which was located on the fourth floor of the hospital, to the physical therapy department room, which was located on the first floor. According to petitioner, no one else was present in the area, and as respondent wheeled her into the room he paused momentarily and locked the door. Respondent then assisted the patient onto a physical therapy table, where he positioned her on her left side, placed three pillows between her legs, and then, over the course of the next 20 to 30 minutes, treated her with hot packs and ultrasound with electrical stimulation. Respondent concedes that he transported the patient to the physical therapy room as asserted by the patient, but avers that the area was not empty at the time. According to respondent, the physical therapy department abuts two other departments in the hospital, respiratory and EKG, and at least the respiratory department was staffed that day. Moreover, the physical therapy department is located near the entrance to the hospital, the cafeteria, and the elevators, all of which are subject to public access. As to the remainder of the patient's assertions, respondent denies that the door was locked, or even capable of being locked, and denies that he placed three pillows between the patient's legs. Rather, he avers that he assisted her onto a physical therapy table where he positioned her on her left side, placed one pillow between her legs and two under her head, and then, over the course of the next 30 minutes, treated her with hot packs and ultrasound with electrical stimulation. 1/ Following the treatments, the patient avers that the respondent sexually assaulted her before returning her to her room. Respondent denies such assertion, contends that no improprieties occurred, and that following the conclusion of the treatments he returned her to her room. Where the truth lies is, at best, elusive. 2/ The patient's description at hearing, concerning respondent's sexual assault and her reactions, when compared to previous statements she had given (respondent's exhibits 1, 3, and 8), is a gross exaggeration, and conflicts in material respects with prior recountings, which she either denies or rejects. Juxtaposed with such uncertain proof, the proof offered on behalf of the respondent was consistent and appeared worthy of belief. Under such circumstances, it cannot be concluded, with the requisite degree of certainty required by law, which version accurately reflects what transpired on the day in question or that any offense was committed. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of June 1993. WILLIAM J. KENDRICK 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 22nd day of June 1993.
Findings Of Fact Thomas Giallanzo is licensed as a chiropractic physician in the State of Florida, holding license number CH 5600. He practices at 356 E. Dania Beach Boulevard., Dania, Broward County, Florida 33004. The telephone number of his chiropractic office is (305) 921-2602. He operates a massage establishment, which is separately licensed, at the same location. Dr. Giallanzo was disciplined previously by the Department of Professional Regulation, in Case number 93996 for violating Subsections 460.413(1) (e) and (l), Florida Statutes, which govern advertising by chiropractic physicians. He was fined $500.00 and placed on probation. The Department's Final Order was filed with the agency clerk on December 1, 1988. Dr. Giallanzo was disciplined a second time by the Department in Case number 99171 for violating three statutory provisions, Subsection 460.413(1)(n), Florida Statutes, by failing to keep written chiropractic records justifying the course of treatment for a patient; Subsection 460.413(1)(s), Florida Statutes, for gross or repeated malpractice or the failure to practice chiropractic at a level of care, skill, and treatment which is recognized by a reasonably prudent chiropractic physician under similar conditions and circumstances; and Subsection 460.413(1)(w), Florida Statutes, by violating Rule 21D-17.003(3)(a), Florida Administrative Code. This discipline was imposed because from on or about December 26, 1987, Dr. Giallanzo treated a patient without obtaining a patient history, including weight, height, temperature or cause of illness; performed no x-rays; and referred the patient for peripheral vascular and cerebrovascular tests and ultrasonagraphy without justification. He failed to maintain progress notes or records justifying the need for six additional appointments for the patient. Dr. Giallanzo was fined $2,000 which was to be paid within thirty (30) days of the entry of the Final Order. Rule 21D-16.004, Florida Administrative Code. He also was placed on probation and ordered to obtain additional continuing education over and above the minimum required for renewal for his chiropractic license. That Final Order was entered September 7, 1989. Under the terms of the stipulation incorporated in the Final Order, his license was to be suspended pursuant to that Final Order if he failed to pay the fine within 30 days. Dr. Giallanzo only paid the fine more than two years later, on September 21, 1991, two days before the final hearing in this case. Dr. Giallanzo was disciplined a third time by the Department of Professional Regulation in Case Numbers 89-9848, 89-9849 and 89-9850 for violations of Subsections, 460.413(1)(v), Florida Statutes, by delegating professional responsibilities to a person, when he knew or had reason to know that person was not qualified to perform those responsibilities; Subsection 460.413(1)(w), Florida Statutes, by violating provisions of Chapter 460, and any rule implementing it; and Subsection 460.413(1)(w), Florida Statutes, by sexual misconduct in the practice of chiropractic. In those cases, Dr. Giallanzo employed, from October, 1988 through about August, 1989, unlicensed persons to perform sex acts and/or massages on clients. Dr. Giallanzo was ordered by the Board of Chiropractic to pay a $2,000 fine within ninety (90) days of the filing date of the Final Order in that case. His license also was suspended from January 1, 1991 to March 31, 1991 as discipline, and following the suspension his license was placed on two (2) years probation, with conditions. This Final Order was filed December 27, 1990. Dr. Giallanzo has never paid that fine, and he never returned his license to the Board during the period of his suspension. He continued to post his license in the reception area of his office while he was suspended. Dr. Giallanzo admitted in response to Requests for Admissions that he was suspended. The Respondent billed Patient One's insurance carrier without providing a copy of his bill to Patient One at the same time. Section 460.413(1)(bb), Florida Statutes, required him to do so, without regard to whether the patient specifically asked for a copy of the bill when it was submitted to the insurer. Dr. Giallanzo's attempt to re-interpret his answer to the admission at the final hearing, to claim that he sent a copy of the billing to Patient One, is rejected as unconvincing (Tr. 268). Teresa Tanya Chiappee, also known as Christine, only received her apprentice massage therapist license in March 1991, although she has worked for Dr. Giallanzo since September of 1989. Prior to Ms. Chiappee's licensure as a massage therapist, she was employed by Dr. Giallanzo. The contention that she was an independent contractor is rejected. Dr. Giallanzo admitted in the response to the Request for Admissions that he was her employer, and the testimony would independently lead to this finding. Dr. Giallanzo's attempted recantation of the admission during the hearing was unconvincing (TR. 243). Dr. Giallanzo allowed her to perform massage therapy on clients when he was not physically present at his chiropractic office providing direct supervision. The massage therapy Ms. Chiappee performed was the same as that provided by licensed massage therapists in Dr. Giallanzo's office. (Tr. 96). Dr. Giallanzo displayed on a wall in his office the licenses of Kathe Lynch who was a licensed massage therapists, when he did not employ her. Dr. Giallanzo never employed Kathe Lynch. Dr. Giallanzo displayed the license so that patients and members of the public could see it. The manner of display was designed to impart the erroneous belief that he currently employed licensed massage therapists at his office. On February 15, 1991, Patient Two entered Dr. Giallanzo's office as part of an investigation to determine whether Dr. Giallanzo was practicing chiropractic medicine while his license was under suspension. On that date, Dr. Giallanzo obtained a copy of Patient Two's insurance card, gave Patient Two a health questionnaire to complete, and advised Patient Two to return at a later date after Dr. Giallanzo verified Patient Two's insurance coverage, which would be used to pay bills for Dr. Giallanzo's treatment of Patient Two. On February 18, 1991, Patient Two returned to Respondent's office, watched Dr. Giallanzo's review the medical questionnaire he had completed, and watched Dr. Giallanzo place a telephone call to Patient Two's insurance company to verify insurance coverage. Because the line was busy, Dr. Giallanzo was unable to verify the insurance coverage. Dr. Giallanzo did not treat the patient because the coverage had not been verified. Dr. Giallanzo's contention that he called to determine whether charges for massage were covered by the insurance is rejected as less credible than that of Patient Two, who testified that he went to the office seeking chiropractic treatment, not massage. On February 21, 1991, Dr. Giallanzo examined Patient Two, reviewed his medical questionnaire, performed a manipulation and massage on Patient Two, and applied electric muscle stimulation and heat packs on Patient Two. Department of Professional Regulation, Investigator John Jorgensen, presented to Dr. Giallanzo a medical release for Patient Two's medical records and requested Dr. Giallanzo to turn over those records. Dr. Giallanzo has never supplied the medical records, through the time of the final hearing. Those records would be damaging to Dr. Giallanzo, for they would constitute additional proof of practice as a chiropractic physician while his license was suspended.
Recommendation Based on the Respondent's failure to comply with Chapter 460, Florida Statutes, the Florida Administrative Code, and the Final Orders of the Board of Chiropractic, Dr. Giallanzo has demonstrated that his continued practice as a chiropractor poses a danger to the public because he has repeatedly failed to conform his conduct to the law. From 1987 until the present, Dr. Giallanzo has engaged in a pattern of violations of the laws governing the practice of chiropractic. These violations have included such serious violations as malpractice, sexual misconduct by massage employees in his office, improper delegation of duties and/or responsibilities to unqualified people, failure to turn over patient records and use and practice on a suspended license. The Respondent has no convincing excuse for his conduct. I find no persuasive evidence that the Department or Board is engaged in a pattern of conduct designed to harass Dr. Giallanzo. He has ignored the Final Orders of the Board of Chiropractic and the laws of Florida by his practice while under suspension and by his failure to pay the fine in Department of Professional Regulation Case Numbers 89-9848, 89-9849, and 89-9850 or offer any convincing justification for his failure. Based on the foregoing findings of facts and conclusions of law for the twelve violations proven here, it is RECOMMENDED that the Florida Board of Chiropractic Medicine enter a Final Order imposing the following penalties for each count: Count I: A $1000 fine and Revocation of License Count III: A $500 fine Count IV: A $500 fine Count V: 6 months probation Count VII: 6 months probation Count VIII: Revocation of License Count IX: Revocation of License Count X: Revocation of License Count XI: Revocation of License Count XII: Revocation of License Count XIII: 1 year suspension Count XIV: Revocation of License It is also recommended, should Respondent reapply for licensure as a chiropractic physician in the State of Florida, that Respondent meet all criteria for initial licensure, including passing any examinations, required at the time of the Respondent's reapplication. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of November, 1991. WILLIAM R. DORSEY, JR. 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 27th day of November, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-8103 Rulings on findings proposed by the Department. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7, except that I find insufficient evidence that Dr. Giallinzo displayed the license of Janet Dean while she was not employed. The evidence is quite weak on when she left employment, and when the license was (or remained) posted. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rulings on findings proposed by the Respondent. Adopted in Finding of Fact 1 Discussed in Finding of Fact 6. Last sentence rejected as unnecessary and unsupported by the evidence of Mr. Jorgensen, which I credit. Rejected, see Finding of Fact 7. Rejected, see Findings of Fact 8, 9 and 10. Copies furnished: Elizabeth Renne Alsobrook, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth A. Wolis, Esquire Plaza One, 5th Floor 4601 Sheridan Street Hollywood, Florida 33021-3401 Diane Orcutt Executive Director Board of Chiropractic Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Case No. 90-8103
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 The Department issued Hao license number MA 60237, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Hao. 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. 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. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.2/ 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- (Apr. 25, 2010), 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.3/ Regarding these required practices, section 1005.04, Florida Statutes (2009), 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.4/ 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 apparent authority, at a minimum, to evaluate the transferability of credits, and she possessed actual authority to generate and execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. 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 from FCNH graduates whose transcripts seemed irregular. (Hao's application was not among these; she had taken, and passed, a national licensing examination in February 2010.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected purported 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. Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Ms. Wade later 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 Hao. Hao was born in China and at some point immigrated to the United States. In 2007 Hao studied massage therapy at Acupuncture and Massage Institute of America ("AMIA") in Hacienda Heights, California. At AMIA, Hao successfully completed a 750-hour curriculum in massage therapy, graduating on December 18, 2007. Thereafter, Hao relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Hao needed to obtain a Florida license. Because AMIA was not a Board-approved massage school, Hao needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. In June 2010, Hao went to the Pompano campus of FCNH, where she met with Ms. Johnson. Hao decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. Hao gave Ms. Johnson copies of her educational credentials from AMIA. In her capacity as registrar, Ms. Johnson completed a Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson took Hao's FCNH enrollment forms and collected $400.00 in cash as the fee for handling the transfer of Hao's credits and her registration as a student of FCNH. Having collected the money, Ms. Johnson furnished Respondent with several items, including an FCNH document titled "Certificate of Completion — 15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" that bore Ms. Johnson's signature and the school's seal; an FCNH document titled "Certificate of Completion — 2 Hours of Prevention of Medical Errors," which bore FCNH's seal, as well as Ms. Johnson's signature; the Transfer of Credit Form signed by Ms. Johnson, which indicates that FCNH accepted Hao's credits from AMIA; and an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Hao had completed a 500- hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "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), Florida Statutes. The several documents comprising Hao's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Ms. Johnson produced a Department of Health application for a massage therapy license and helped Hao fill it out. Hao then signed the three-page application, which is dated June 17, 2010. The application which Hao executed states, truthfully, that she obtained a massage therapy certificate in December of 2007 from AMIA and that the school is not Board approved. The application states, correctly, that Hao completed 750 hours of study at AMIA. The evidence does not establish that Hao knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson forwarded Hao's application and supporting documents to the Department, and soon afterward the Department issued Hao a license to practice as a massage therapist. The evidence fails to support a finding that Hao misrepresented her educational attainments when she met with Ms. Johnson. The evidence, moreover, does not support a finding that Hao 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 Hao knew or should have known that FCNH, as the transferee school accepting her AMIA courses, would award her academic credit or credentials which she had not legitimately earned. Hao was not shown to have had any prior familiarity with FCNH forms and documents; its recordkeeping practices; or its internal policies regarding the registration and enrollment of students, the evaluation of transcripts for the purpose of transfer of credits, or the issuance of certificates and other educational credentials. Hao was not shown to have had any reason to suspect that the FCNH Enrollment Agreement she signed would not be properly entered into the school's records, or to believe that the FCNH transcript issued for her benefit purported to award her any credits other than those she rightfully had earned. To sum up Hao's transaction with FCNH, she went to the Board-approved, state-licensed massage school in June 2010, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Hao 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. Further, 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 prepare and certify educational credentials on behalf of FCNH. The evidence does not establish that Hao was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Hao gave Ms. Johnson false information. From Hao's perspective, Ms. Johnson had apparent authority, at least, to accept Hao's credits from AMIA and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Hao has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. FCNH has not initiated a legal proceeding to revoke or withdraw Hao's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Hao is without rights and privileges thereunder.
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 finding Hao not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. 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 20th day of August, 2013.
Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
The Issue Whether Respondent violated Subsection 486.125(1)(e), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of medicine pursuant to Chapters 20, 456, and 458, Florida Statutes. Mr. Westrope is, and was at all times material to this proceeding, a licensed physical therapy assistant in the State of Florida, having been issued license number PTA1170. Beginning in or about September 2004, D.D. was being provided physical therapy services through Girling Health Care, Incorporated (Girling). Girling contracted with Rehab Action, Incorporated (Rehab) to provide home health physical therapy to patients. Rehab contracted with Mr. Westrope to perform the physical therapy in the patients' homes. In or about September 2004, Mr. Westrope was assigned to provide physical therapy to D.D., who had undergone a complete knee replacement. D.D. had been assessed by Mr. Westrope’s supervising physical therapist, Gaspard de Laaf, on September 29, 2004, prior to Mr. Westrope beginning his physical therapy services on September 30, 2004. Mr. Westrope was required by Rehab to complete a visitation slip at the end of each physical therapy session. Mr. de Laaf had provided instruction to Mr. Westrope on how to complete the form. Mr. Westrope would send the completed form to Mr. de Laaf, who reviewed the form and sent it to Girling for reimbursement. When Mr. Westrope provided physical therapy to D.D., she would lie on her bed and perform therapy exercises, and then move into the kitchen where Mr. Westrope would measure the bend in her knee. When each session was over, Mr. Westrope would complete a visit slip for the treatment, and D.D. signed them to verify that she received the services. D.D. is visually impaired and can only see light. In order to sign the forms, D.D. requested Mr. Westrope to place the forms near the end of the kitchen table so that she could align her arm with the table edge so that her signature would be in a straight line. D.D. always signed her signature as "D.A.D." D.D. prided herself on her independence and did not allow anyone else to sign the visit slips for her. Mr. Westrope provided physical therapy services to D.D. on September 30 and October 1, 5, 6, 8, 12, 15, and 22, 2004. Mr. de Laaf evaluated D.D. and provided physical therapy services to her on October 25, 2004. Mr. Westrope provided services to D.D. on October 28, 2004. Mr. Westrope completed and submitted visit slip documentation for physical therapy treatment of D.D., which he claimed to have provided on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. However, Mr. Westrope did not provide services to D.D. on those dates. On or about November 3, 2004, D.D. contacted Girling complaining that she had not received physical therapy from Mr. Westrope in a while. On or about November 4, 2004, Mr. de Laaf was notified by Girling regarding the complaint it received from D.D. Mr. de Laaf then prohibited Mr. Westrope from seeing any Girling patients after Girling indicated that it did not want Mr. Westrope performing any of its services. Mr. de Laaf then resumed the treatment of D.D. On or about November 5, 2004, Tammy Hain, R.N., and Rob Hudson, O.T., who are supervisors employed by Girling, visited D.D. to verify that she had not been receiving physical therapy from Mr. Westrope on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. D.D. verified that she had not received services on those dates. D.D.'s daughter has been assisting D.D. with her financial transactions for 15 years and is familiar with D.D.'s signature. At the final hearing, D.D.'s daughter reviewed for the first time the visit slips submitted by Mr. Westrope for services to D.D. After reviewing the visit slips, D.D.'s daughter concluded that the signatures on the visit slips for October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004, were not written by D.D. D.D.'s daughter verified that D.D. always uses her middle initial “A” when signing her signature. The signatures on the disputed dates do not contain D.D.'s middle initial and are different in appearance from the signatures on the visit slips on which Mr. Westrope documented services that he did provide to D.D. On five occasions during the time that Mr. Westrope was providing services to D.D., Robert Hudson also provided occupational therapy services to D.D. on five occasions. At the end of the therapy sessions with Mr. Hudson, D.D. signed the visit slips “D.A.D.” The parties stipulated that if Mr. Westrope did not provide the services to D.D. on the dates he indicated on the visit slips, then Mr. Westrope violated the rules of the Department and Subsection 486.125(1)(e), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Michael G. Westrope, P.T.A., violated Subsection 486.125(1)(e), Florida Statutes, and imposing a penalty of a $2,000 fine and a six-month suspension followed by one year of probation with the terms to be set by the Department at the conclusion of the suspension period and requiring Respondent to complete five hours of Continuing Education in physical therapy medical records documentation. DONE AND ENTERED this 7th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of April, 2006.
The Issue Whether Respondent violated Subsection 480.046(1)(l), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact Brevard was issued a massage establishment license numbered MM8462 on April 17, 1998, and was so licensed on August 29, 2001. As of August 31, 2003, Brevard no longer possesses a massage therapy license. Bruce Milburn, M.D., and his wife Anne Marie Milburn are the co-owners of Brevard. Dr. Milburn is a licensed physician, who practices medicine at Brevard. Although not required to obtain a license as a massage establishment because Dr. Milburn was practicing medicine at the facility and any massage therapy was in conjunction with his practice of medicine, Brevard chose to obtain a license for a massage therapy. Pursuant to Section 480.093, Florida Statutes, the Department is authorized to make periodic inspections of massage establishments. The inspections are done at least once a year and are unannounced. The purpose for having unannounced inspections is to allow the Department investigators to see how an establishment is operating normally without the establishment having an opportunity to "fix" any violations solely for the inspection time. On August 29, 2001, a week day, at approximately noon, Mark Plosila, a Department investigator, went to the Brevard facility at 375 South Courtney Parkway, No. 3, Merritt Island, Florida, to perform an unannounced routine inspection of the facility. Mr. Plosila had inspected Brevard on at least two previous occasions. At the time of the inspection and for months prior to the inspection, Brevard had not been providing massage therapy. Mr. Plosila entered the building by the front door, which was unlocked, and then entered the Brevard facility through another unlocked door. Mrs. Milburn was behind the counter when Mr. Plosila arrived. No patients were in the waiting area. There were no business hours posted on the premises. Mr. Plosila showed Mrs. Milburn his credentials and advised her that he was there to do a routine inspection of the premises. She told him that her husband had gone out for lunch and that he would be back around two o'clock. Mrs. Milburn told him that she could not get the insurance papers which Mr. Plosila would need to see because they were locked in Dr. Milburn's office and Dr. Milburn had the only key. She asked Mr. Plosila to come back later in the afternoon when Dr. Milburn would be in the office. On a prior inspection, the insurance papers were not readily available for inspection at the time Mr. Plosila made the inspection, and Mr. Plosila made the inspection and allowed Brevard three business days to send a copy of the insurance papers to him by facsimile transmission. Mrs. Milburn refused to allow Mr. Plosila to inspect the premises. He advised her that failure to allow him to inspect could result in his opening a complaint against Brevard's license. Mrs. Milburn continued to refuse to allow him to inspect the premises. When Dr. Milburn returned to the office, Mrs. Milburn informed him that Mr. Plosila had been there to inspect the premises, but that she had refused to allow him to do the inspection. Dr. Milburn called the Department and advised that he was back in the office and that an inspection could take place. Brevard was inspected on October 31, 2001, and passed the inspection. The evidence does not establish that Mrs. Milburn did not allow the inspection because she feared that the business would not pass inspection. Prior to Mr. Plosila's aborted attempt to inspect Brevard there had been a murder of a state employee in an office near Brevard. At the final hearing, Mrs. Milburn stated that she was nervous about allowing Mr. Plosila to inspect the facility because no patients or employees were present when Mr. Plosila arrived. She did not want to be alone with a man while he inspected the premises. Dr. Milburn sees patients on an appointment-only basis. He does not accept walk-in patients. The office is not always open all day, every day. However, on the day that Mr. Plosila attempted to inspect the facility, the doors were unlocked, no business hours were posted, and a co-owner of the business was present. Dr. Milburn had been seeing patients the morning of August 29, 2001, and would be seeing patients after he returned from lunch. Thus, the argument that the business was closed is not valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Brevard violated Subsection 480.046(1)(l), Florida Statutes, and imposing an administrative fine of $500. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 24th day of February, 2004.
