The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent without pay for ten days for gross insubordination or misconduct in office or both, as set forth in the letter of suspension to Respondent from Superintendent Paul Hagerty, dated May 16, 2000. By letter dated May 16, 2000, Petitioner suspended Respondent from his employment. Respondent timely requested an administrative hearing.
Findings Of Fact Prior to his suspension Respondent was employed as a teacher by Petitioner. During the 1999-2000 school year Respondent was a Physical Education teacher at Sterling Park Elementary School. Respondent taught for 13 years in Ohio before moving to Florida. He has been employed by Petitioner for the last 12 years. On or about October 17, 1997, Respondent received a written directive from Principal Deborah Wright. An addendum to that letter followed on April 27, 1998. Those letters addressed concerns about Respondent’s physical interactions with students relating to discipline. On or about September 16, 1999, Respondent received a letter from Superintendent Paul J. Hagerty. The stated purpose of the letter was to "clearly communicate the School Board’s policy and expectations regarding physical contact by teachers and other school personnel with students. . ." The policy described by the Superintendent is that school personnel will not have physical contact with students except for five enumerated reasons. One basis for allowing physical contact is: "To praise a child, such as a high five, a pat on the back, or the like, but never a pat on the buttocks." Principal Wright agreed with the Superintendent’s interpretation of the School Board’s policy. Respondent was never directed not to touch a student for purposes of offering praise. H.S. was a student in Kristen Brotsch’s class and had Respondent for physical education ("P.E."). On January 12, 2000, H.S. was the line leader for purposes of leading the class to the field for P.E. At the beginning of the class, Brotsch saw Respondent make a gesture toward H.S.'s face. The purpose of the gesture was to signal the class to go out to the field. Brotsch was between seven and ten feet from Respondent and H.S. when she witnessed the gesture. She did not see Respondent touch H.S. According to Brotsch, Respondent was not upset with the class or H.S. at the time he made the gesture. The gesture did not cause her any concern. She went back to her classroom after the class went to P.E. Following the P.E. class, H.S. told Brotsch Respondent had punched her in the face prior to class. The following day Brotsch reported the accusation to Principal Wright. On the night of January 12, 2000, H.S. told her parents Respondent had punched her in the side of the face that day in school. She physically re-enacted the incident by moving her hand approximately a foot from her mother’s arm. H.S. punched her mother hard enough that it "stung." The parents contacted Principal Wright about the incident the next day. On or about January 13, 2000, Principal Wright interviewed H.S. H.S. told her Respondent had hit her in the jaw with his fist, that it hurt, and that her friend T.P. had witnessed the incident. T.P. then told Principal Wright she had witnessed the incident and repeated H.S.’s story. According to H.S., Respondent was not upset or mad at the beginning of class on January 12, 2000. He did not say anything to H.S. H.S. was the line leader on that day and had done a good job of organizing the students to go out to P.E. When Respondent touched H.S. she did not cry. She did not believe he was trying to hurt her, and no one around said anything about the incident. H.S. told T.P. about the alleged incident on the playground during the P.E. class. Respondent has no recollection of touching H.S. anytime before class began on January 12, 2000. The P.E. class had gone exceptionally well on January 12, 2000, and Respondent was very pleased with the class. At the end of the class period, the students lined up to go back to the building. Respondent praised the entire class for their performance. Respondent turned to H.S. as the first person in line and grazed over her chin with the back of his partially closed hand while saying "great job, and let’s go." Respondent has been using the gesture involving grazing a person’s chin as a congratulatory gesture throughout his 25-year teaching career. H.S. did not appear to Respondent to be upset with the gesture. Rather, H.S. smiled as they went back to the building. Whether the touching alleged by H.S. occurred before or after class, it was not a disciplinary action. All of the testimony indicates Respondent was not upset with the students either before or after class on January 12, 2000, and was not seeking to correct any behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the School Board enter a Final Order finding Respondent not guilty of the charges against Respondent. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
Findings Of Fact At all times relevant hereto Respondent was licensed as a physical therapist assistant in Florida. He has held a physical therapist assistant license for approximately 18 years and worked approximately five and one-half years as an orthotec. In June 1985, Respondent was employed by Southeast Rehabilitation Services (Southeast) as a physical therapist assistant. On or about June 3, 1985, a patient had been transferred to Southeast with one knee immobilized. The physician's order transferring the patient to Southeast directed the immobilizer be removed. When Respondent provided treatment to the patient, he removed the immobilizer without first having received written instructions from the physical therapist to do so. On or about June 11, 1985, Respondent provided treatment to a patient at Southeast which consisted of strengthening exercises using small weights, when the physical therapist orders called only for range of motion exercises without weights. Respondent had been working at Southeast only a short while and had been taken on rounds by another physical therapist assistant. When Respondent gave treatment to this patient on his own, he couldn't locate the patient's chart and relied on his memory to provide treatment. He thought he remembered the other physical assistant gave this patient strengthening exercise, but this was incorrect. Respondent readily acknowledged committing the violations alleged, but contended the June 11 incident was a simple mistake and that he had followed physician's orders at other physical therapy centers at which he had worked, without waiting for written orders from the physical therapist.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 007919. Respondent is an orthopedic surgeon, practicing in Hallandale, Florida. Respondent first met N. L. on March 6, 1985, when she came to him for treatment of injuries which she received in a motor vehicle accident on March 2, 1985. N. L. began receiving physical therapy in Respondent's office and was examined by Respondent on a regular basis. The primary medication given to N. L. by Respondent was B-12 IM. On a number of occasions, Respondent gave N. L. a prescription for valium (Diazepam). Diazepam is a Schedule IV controlled substance as defined by Chapter 893, Florida Statutes. Respondent made a notation in N. L.'s records whenever he gave her a prescription for medication and whenever he gave her a sample of medication which he had received from manufacturers' representatives. Although subsequently released from active treatment, N. L. continued to return to Respondent's office for treatment and therapy due to continued complaints and due to episodes of exacerbation of the injuries which she had previously received. Respondent saw N. L. as a patient for the last time on February 20, 1987. Respondent gave her no prescriptions for valium subsequent to that date. Thereafter, Respondent did see N. L. socially. She was a friend of his children and dated one of his sons. She was a guest in Respondent's home on a number of occasions. On occasion, she accompanied his sons when they came to Respondent's office. On several occasions, she flew with Respondent in his airplane. N. L. was never drunk or "stoned" when she was in Respondent's presence. Respondent never saw any evidence that N. L. was an alcohol and/or drug abuser. On or about July 25, 1989, N. L. died as a result of a car accident. Some Diazepam was found in her blood at the time of her death. Her blood also revealed a high alcohol content. Respondent kept his blank prescription pads in more than one location in his office. He kept some in his desk and kept some in a cabinet in the hallway across from the examining rooms. According to the records of Eckerd Drug Store, on May 18, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled in increments on May 18 and May 19 by the pharmacists working at Eckerd. According to the records of Eckerd Drug Store, on June 13, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled on June 13, 1989, was refilled on June 27, 1989, and was refilled on July 18, 1989, by the pharmacists working at Eckerd. Although the signature on the two prescriptions described above is similar to Respondent's, Respondent did not sign or issue those prescriptions to N. L. C. F. is a 28-year-old female who slipped and fell in her apartment on August 23, 1989. She sought medical treatment immediately following her fall. She then retained an attorney to represent her in the civil litigation she would be filing as a result of her fall, and that attorney referred her to Respondent for treatment and physical therapy. Respondent's first contact with C. F. occurred on her first visit to his office on August 31, 1989. At that time, Respondent performed a full physical examination on C. F. and started her on a course of physical therapy. It was not Respondent's practice to see each patient every time that patient came in for physical therapy. Rather, Respondent would see such patients once a week, either in the physical therapy room or in one of his examining rooms. On November 2, 1989, Respondent saw C. F. in the therapy room. C. F. listed her complaints, and Respondent examined her and dictated notes for her medical chart. C. F. asked Respondent if she could talk to him in a different room. She was placed in one of the examining rooms. When Respondent came into the examining room, C. F. asked if the door could be closed and if it could be secured. Respondent then closed the sliding door to the examining room, securing it with a pin. C. F. then told Respondent that she was "very good at giving head." Respondent replied that that was nice but he was busy. C. F. continued to joke and was laughing when she left the examining room. Thinking it insignificant, Respondent gave no further thought to the banter which had taken place. As C. F. left the office, she stopped at the front desk and made an appointment for a physical therapy treatment the following week. On November 7, 1989, C. F. arrived for her scheduled physical therapy treatment. She was not scheduled to see Respondent on that date. While C. F. was lying on the traction table, she asked the physical therapist if Respondent were in the office that day. The therapist responded that he was and asked if C. F. needed to speak to him. At first, C. F. said she did not need to see Respondent, but she later became insistent that Respondent see her. By the end of C. F.'s therapy session, C. F. was demanding that she be seen by Respondent, taking the position that she would not leave without seeing him even if that meant that she had to wait all day. The therapist told Respondent that C. F. was demanding to see him, and Respondent told the therapist to put C. F. in an examining room. Respondent then became busy, and the therapist did not have an opportunity to tell Respondent that C. F. was acting "a little eerie." C. F. was taken to an examining room. She waited for approximately an hour before Respondent was able to see her. When Respondent entered the examining room, C. F. asked him to close the door and motioned to him to lock it by putting the locking pin in place. Respondent closed the door and inserted the pin. C. F. walked over to Respondent, abruptly opened his belt, opened his pants, pulled his pants down, pulled down his underwear, pulled up his shirt, and told Respondent to "hold this," referring to his penis. C. F. then told Respondent that she had to get a napkin. She turned, took two steps toward her pocketbook, reached in, pulled out a camera, and instantly shot two pictures of Respondent. She then ran to the door shouting for her husband whom she had brought with her to her therapy session on that day. Respondent reached for her pocketbook, but C. F. pulled the pin out of the door, opened the door, and ran out still loudly calling her husband's name. C. F. and Respondent were alone in the examining room for no more than two minutes. By this time, her husband Patrick had entered the examining room area, where he immediately attacked the x-ray technician, placing his hands around the x-ray technician's throat and attempting to strangle him. C. F. told her husband he had gotten the wrong doctor, and Patrick then ran to Respondent and placed a stranglehold on him. C. F. and Patrick left Respondent's office, stopped by the gas station where C. F. worked, and then went to the Hallandale police station. Within 24 hours from the time that C. F. seduced Respondent in his office, she had contacted the attorney representing her in her "slip and fall" lawsuit regarding his filing an action against Respondent, had had a "falling out" with that attorney over him representing her, had hired a different attorney to file a lawsuit against Respondent, had been referred by that second attorney to a third attorney who would represent her along with the second attorney in suing Respondent, had been interviewed by a local television station at the office of one of her new attorneys, her interview and the interview with her new attorneys had been shown on both the early evening and the late evening news, and contact had been made between C. F.'s new attorneys and Respondent's attorney regarding C. F.'s demand for money from Respondent. No civil suit was ever filed by C. F. against Respondent. Numerous contacts took place between C. F.'s attorneys and Respondent's attorney. Additionally, C. F.'s attorneys contacted the Department's investigator a number of times attempting to obtain confidential information from the investigator to be used in C. F.'s claim against Respondent. Over the next several months, C. F.'s attorneys continued to demand money from Respondent and threatened Respondent with additional publicity. In the face of C. F.'s threats of expanded publicity against Respondent, a settlement was entered into in February of 1990. Under the terms of that settlement, C. F. received a cash payment from Respondent's medical malpractice carrier with an "extremely nominal" contribution from Respondent. Respondent was immediately devastated by his encounter with C. F. on November 7, 1989. He walked down the hallway in his office building and made an appointment to see Dr. Burton Cahn, a psychiatrist practicing in that building. He was not able to see Dr. Cahn until November 9, 1989. Dr. Cahn began treating Respondent for his depression, seeing Respondent at first twice a week and then once a week. Respondent was still seeing Dr. Cahn regularly at the time of the final hearing in this cause. Respondent voluntarily ceased practicing medicine on November 9, 1989, to avoid the possibility that the problems with C. F. would distract him from providing good quality medical care. He resumed his office practice on March 7, 1990, with Dr. Cahn's full approval and following Dr. Cahn's suggestion that Respondent never see a female patient without another female in the room. Respondent had ceased performing hospital surgical procedures by approximately August of 1989, two months before the incident with C. F., since he was not doing much surgery in a hospital setting and had someone else in his office who was performing hospital surgical procedures. When he resumed his office practice on March 7, 1990, Respondent did not resume performing hospital surgical procedures since he thought he might be "too rusty". Respondent is able to practice orthopedic surgery. He does not represent a danger to himself or to the people in the community. A further suspension of Respondent from his practice would be of no benefit to him or to the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty and dismissing the Amended Administrative Complaint filed against him. DONE and ENTERED this 18th day of October, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1565 Petitioner's proposed findings of fact numbered 1-4, 6-9, 22, 28, and 31 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 10, 13-18, 23, and 24 have been rejected as being subordinate to the issues under consideration herein. Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 25, 26, 29, 30, and 35 have been rejected as not being supported by the weight of the credible and/or competent evidence in this cause. Petitioner's proposed findings of fact numbered 19, 27, and 36-41 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 32-34 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's four unnumbered paragraphs contained in the Findings of Fact section of his post hearing Report and Recommendation of Referee have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 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 Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Bogenschutz, Esquire 633 Southeast Third Avenue Fort Lauderdale, Florida 33301
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(k), 458.331(1)(m), and 458.331(1)(n), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0059304. The Respondent is an experienced physician, having practiced medicine in several jurisdictions over a period of approximately 24 years. The Respondent is a native of Uruguay, where he studied medicine and graduated from medical school in 1974. English is the Respondent's second language. The Respondent began his private medical practice in the State of Florida in 1990. From January of 1992 until February 3, 1993, the Respondent treated patients C. P. and F. P.2 on several occasions. Patient C. P. was approximately 90 years old. His wife, patient F. P., was approximately 80 years old. At all times material, patients C. P. and F. P. were Medicare recipients. On January 12, 1993, the patient C. P. appeared at the Respondent's medical office for examination and treatment. On that day the patient C. P. had a number of complaints and concerns. The Respondent interviewed the patient, and obtained a history from the patient that included the fact that the patient had been hospitalized approximately six months earlier for injuries incurred in an automobile accident. The Respondent also examined the patient. Based on the examination of the patient and on the history obtained from the patient, the Respondent concluded that the patient C. P. needed to have some further testing of his heart rhythm. The Respondent ordered a series of tests which were to be performed with a portable Cardiotrace monitor. A total of five such tests were performed. One of the Cardiotrace tests was performed in the Respondent's office. The other four were performed at patient C. P.'s home by a technician employed by and trained by the Respondent. The Cardiotrace monitor equipment transmitted heart rhythm information by telephone line directly to equipment that prepared a tracing of the heart rhythm. A copy of the rhythm tracing was then transmitted to the Respondent by fax transmission. Five such rhythm tracings regarding the patient C. P. were received by the Respondent. The Respondent reviewed and interpreted each of the rhythm tracings. Subsequently, the Respondent billed Medicare for his review and interpretation of each of the five rhythm tracings regarding the patient C. P. The services for which the Respondent billed Medicare in this regard were services that were actually performed.3 Based on the examination of the patient and on the history obtained from the patient on January 12, 1993, the Respondent concluded that the patient C. P. also needed some physical therapy. The Respondent referred the patient C. P. for physical therapy services at the Respondent's medical office. The Respondent prepared a physical therapy plan for the patient C. P. The plan provided for the patient to initially receive physical therapy three days per week for three weeks. The plan also provided for the patient to receive six modalities of physical therapy on each treatment day. The Respondent billed Medicare for providing physical therapy to patient C. P. on January 12, 14, 16, 19, 21, 26, 28, and on February 1 and 3, 1993. For each of these physical therapy sessions, the Respondent billed Medicare for six modalities of physical therapy. These modalities included hot or cold pack therapy, therapeutic exercises for thirty minutes, functional activity therapy, ultrasound therapy, massage therapy, and kinetic therapy. The Respondent had two separate rooms in his office dedicated to and equipped for physical therapy. The Respondent had equipment in his physical therapy rooms for all six modalities of physical therapy ordered for the patient C. P. During the time when the Respondent was treating the patient C. P., it was the Respondent's practice to keep separate medical records and physical therapy records for patients who were receiving physical therapy at his medical office. The physical therapy records were kept on forms the Respondent had designed for that purpose. It was also the Respondent's practice at that time to keep the separate records in separate places. The Respondent has not been able to locate any records of any physical therapy services that were provided to the patient C. P. The Respondent's medical records for the patient C. P. contain only two references to the physical therapy. On January 12, 1993, there is a brief note to refer the patient to the physical therapy department. On February 3, 1993, there is a note to continue physical therapy. There are no other notes specifically referring to the status of or the justification for the physical therapy. Although the patient C. P. sustained injuries in a motor vehicle accident in July of 1992 which caused him to be hospitalized for several days, the Respondent's medical records contain no mention of that accident. The Respondent's records regarding his care and treatment of the patient C. P. are sufficient to justify the testing of the patient's heart rhythm, which was accomplished by means of the Cardiotrace portable monitor. The Respondent's records regarding his care and treatment of the patient C. P. are not sufficient to justify the physical therapy which was ordered by the Respondent.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Count One and Count Three of the Administrative Complaint on the basis of insufficient evidence, Concluding that the Respondent has violated section 458.331(1)(m), Florida Statutes, a charged in Count Two of the Administrative Complaint, by his failure to keep written medical records justifying the physical therapy for the patient C. P., and, Imposing a penalty for the violation of Section 458.331(1)(m), Florida Statutes, consisting of an administrative fine in the amount of $2,500.00 and a letter of reprimand. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 25th day of January, 1999.
Findings Of Fact Marlene Solomon is the Respondent in this case and at all times pertinent to this hearing was licensed by the State of Florida as a registered physical therapist under License No. PT0001665. As of the date the hearing commenced, her license issued on September 2, 1975, was in good standing, and there was no derogatory information in her file. Her licence will be current through December 31, 1984. Marlene B. Holland was employed by Respondent as receptionist-secretary in her Orlando Physical Therapy & Fitness Center (OPTFC) from May 15 to December 21, 1978. She was not a physical therapist. From June until the end of October 1978, she and Ms. Solomon were the only people in the facility, which was open for business from 8:00 a.m. to 5:00 p.m. Monday through Friday. Respondent was not always present when therapy prescribed by a physician was given to a patient. When that was the case, Ms. Holland administered the treatment at the direction of Respondent. One of these patients to whom Ms. Holland administered treatment was a Dr. Douglas, who was receiving whirlpool treatments for his broken arm. This treatment consisted of heating up tile whirlpool bath, helping him into it, and standing by and talking with him while he was in the pool. At no time did she manipulate his arm or request that he flex it through the range of motion, nor did she apply ultrasound without direction. She had no freedom of choice to decide what treatment was to be given or when. Anything she did was done either by written or oral direction of Respondent whether Respondent was physically present or not. Another physical therapist, Mr. Rolf Kuhns, contends this constitutes the practice of physical therapy and, if done by a non licensed individual, must be done under the direct supervision of a physical therapist. Mr. Kuhns initially adamantly claimed there were no exceptions to this position but thereafter substantially relaxed his position. In any case, it is quite apparent, though he denies it, that as a direct competitor of Respondent he would benefit by the discipline of her license and the attendant loss of business she would suffer and, in fact, gratuitously provided information about her difficulties to physicians and others who had been or were clients of Respondent at the time. Marilyn Roofner, a registered physical therapist, works for Respondent from November 1 to December 21, 1978, at OPTFC with Ms. Holland. One of Respondent's patients during November 1978 was a Ms. Marilyn Caswell. During the entire period of time Ms. Roofner worked for Respondent, she saw Ms. Caswell come into the facility on approximately three occasions. On none of these occasions, however, did she give Ms. Caswell any physical therapy treatment. She did try, however, on one occasion to treat Ms. Caswell. In This particular instance, Ms. Caswell had an appointment for a treatment. Ms. Roofner saw her sitting in Respondent's office talking to her and asked if she were ready for her treatment. Ms. Caswell stated she was not. Therefore, Ms. Roofner made up a hot pack and took it to Respondent's office. When Respondent saw her, she frowned and waved her away. On the other visits Ms. Roofner is aware of, she did not see Ms. Caswell receive any treatment but instead observed her just sit there and talk with Respondent. During the period of her employment, she became concerned about the business practices of Respondent and how they might impact on her own professional standing. She observed appointments in the Respondent's appointment book marked "cancelled" or "no-show," which entries were later erased, and the insurance company would be billed for treatment that was not given. This occurred on November 3, November 6, November 13 and November 20, 1978. She heard the administrative employee, Ms. Holland, discuss this practice with Respondent, who advised her to do what she was told--it was none of her business. She heard Ms. Holland chastised by Respondent for calling Ms. Caswell and asking her to come in for treatments. When she realized that the scope of this practice was larger than she thought, she realized she would have to take steps to protect her own license. As a result, she resigned from employment with Respondent. Before doing so, she made copies of the appointment book and ledger cards to support what she had found and thereafter wrote a letter to the president of the Florida chapter of the American Physical Therapy Association. As a result of this letter, after investigation by that Association and findings that Respondent had been engaged in unethical billing practices, Respondent was conditionally suspended from the Association for one year. The Respondent met the condition imposed, and the suspension was forestalled. Respondent was paid $400.00 by Ms. Caswell's insurance company on October 4, 1978, for treatment rendered. She received another $240.00 on October 25, 1978, for additional treatment, and $700.00 on December 22, 1978. Each treatment was billed at $20.00, and billing records show that on several occasions Ms. Caswell allegedly received two treatments in one day. On December 27, 1978, Respondent returned the check for $700.00, indicating there had been a billing error, and thereafter submitted a bill for $320.00 for the period October 22, 1978, Through December 15, 1978. This latter bill included billings on November 3, 6, 13 and 20, 1978. Comparison of these dates with the Respondent's appointment book for these same dates shows that the appointments on November 3, 13 and 20, 1978, were marked "no-show," meaning the patient, Ms. Caswell, did not show up; and that for November 6, 1978, was cancelled. It is clear, therefore, that even after the correction Respondent billed the insurance company for treatment not rendered. By affidavit submitted July 29, 1983, Respondent denies both improper billing, as alleged in Count One of the Administrative Complaint, and allowing an unlicensed individual to practice physical therapy unsupervised, as alleged in Count Two. There was extensive evidence on both sides which indicates an unhealthy relationship existing between Respondent and her employees. As a result, the credibility of Ms. Holland and, to a lesser degree, Ms. Roofner, is in question. Discounting this to a substantial degree, there still remains the documentary evidence in the form of four pages from Respondent's appointment book showing missed appointments on the dates set out supra and the billing statements reflecting physical therapy treatments on those days for each which $20.00 was charged. On none of the appointments book pages is there a showing of a second or alternate appointment for that day. The fact that the bill on these dates postdates the alleged audit of the account and the return of the prior check to the insurance company makes it unlikely there was any mistake on the part of the Respondent, here. Further, the testimony of Dr. Johnson that a part of treatment can include counselling to a distraught patient is not persuasive here. That may well be proper medical treatment for which a physician, counselor, psychologist or psychiatrist can bill, but by no stretch of the imagination can counselling not related to physical therapy be considered a part of billable physical therapy. The very use of the term "physical" in the description of the procedure would exclude such a conclusion. It is clear, therefore, that improper bills were submitted for at least November 3, 6, 13, and 20, 1978.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent's license as a physical therapist in the State of Florida be suspended for six months. RECOMMENDED this 14th day of September, 1983, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael Sigman, Esquire 125 East Jefferson Street Orlando, Florida 32801 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. Case No. 82-659 MARLENE SOLOMON, R.P.T., License No. PT 1665 Respondent. /
