Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
The Issue Whether the 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 material hereto, Respondent was employed by Petitioner on a continuing contract as a physical education teacher at North Ward Elementary School in the Pinellas County school system. Respondent holds a professional teaching certificate number 495697, issued by the State of Florida, Department of Education. On April 6, 1988, Respondent was conducting a physical education class at North Ward Elementary School. The students were playing "T-ball" outdoors, and during the game, one student, Michelle Washington, became upset with Respondent when she told the teams to change sides in order to allow all students to have a turn at bat. The student ran up to Respondent and began screaming in her face. Respondent asked her several times to stop and to calm down, but the screaming continued for between thirty and forty-five seconds. When it became apparent that Washington would not calm down, and after trying to verbally quiet her, Respondent slapped Washington on the cheek. No marks or bruises resulted, and at the end of the class period Respondent and Washington hugged and apologized to each other. Respondent reported the incident immediately to her principal, and also called the student's mother to apologize. During December, 1987 and January, 1988, Respondent grabbed Amudin (Deenie) Tzekas by the jaw, and Jason Owens by the arm in order to discipline and quiet them. These actions caused no physical injury to either student, and were not reported by Respondent or the students at the time. Based upon the testimony of students involved in these incidents, as well as Respondent's own testimony, the testimony of her principal, Marcia Morgan, and a written summary prepared by Steven Crosby of a conference held within a week of the incident involving Michelle Washington, it is found that Respondent slapped Washington on the face on April 6, 1988, after having grabbed Tzekas by the jaw and Owens by the arm earlier in the school year. These actions were taken by Respondent as forms of discipline, and to maintain control in her classes. Based upon the testimony of Marcia Morgan and Steven Crosby, who were accepted as experts in education, Respondent's actions involving these three students impair her effectiveness as a teacher due to the loss of respect among students and parents which has resulted. She failed to exercise good profession judgment, and instead her actions caused embarrassment to her students. This conduct by a teacher impairs the teaching profession as a whole. According to school board policy, teachers should never touch students in a punitive manner. By proper notice to Respondent, Petitioner sought to impose a three day suspension without pay as a result of these incidents, and Respondent has timely sought review of this proposed action. In August, 1987, prior to these incidents, Respondent was counseled by Marcia Morgan, her principal, about getting angry with people. Morgan told Respondent that if she violated school board policy, she could not help her.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a three day suspension without pay upon Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of October, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2291 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. Rejected as a finding of fact since this is a conclusion of law. Adopted in Finding of Fact 6. Rejected as not based on competent substantial evidence in the record. 6-8. Rejected since these are conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. 11-13. Adopted in Findings of Fact 3 and s. 14-15. Rejected as irrelevant and unnecessary. 16-17. Adopted in Finding of Fact 4. 18. Rejected as unnecessary. 19-20. Adopted in Finding of Fact 6. Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 6. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2 and 7. Adopted in Finding of Fact 7. Adopted and Rejected, in part, in Findings of Fact 3, 5. Rejected in Findings of Fact 4 and 5. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 4 and 5. Rejected in Finding of Fact 8. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Charleen C. Ramus, Esquire Post Office Box 75638 Tampa, Florida 33675
The Issue The issue to be determined is whether Respondent violated sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida Statutes (2010), as alleged in the Amended Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43 and chapters 456 and 480, Florida Statutes (2013). At all times relevant to the Amended Administrative Complaint, Respondent has been a licensed massage therapist in the State of Florida, having been issued license number MA 63711. Respondent is a native of China, and immigrated to the United States in approximately 2007. She speaks limited English. Respondent wanted to become a massage therapist. To that end, Respondent attended the massage therapy training program offered at Healing Hands Institute for Massage Therapy (Healing Hands) and completed her training program on or about October 17, 2010. The program at Healing Hands consisted of a 600-hour curriculum. At all times relevant to the allegations in the Amended Administrative Complaint, Healing Hands was a school accredited by the Commission on Massage Therapy Accreditation (COMPTA) and approved by the New Jersey Board of Massage Therapy. It was not, however, a Florida board-approved school for purposes of obtaining licensure in Florida. After Respondent’s attendance at Healing Hands, the school closed in good standing with COMPTA. Healing Hands had campuses in Flushing, New York, as well as in New Jersey. Respondent completed most of her course work at the Flushing campus because there were people there who spoke Chinese, making it easier for her to understand the curriculum. While still a student at Healing Hands, Respondent took and passed the National Certification Examination for Therapeutic Massage and Bodywork. She received notification that she had passed the examination by letter dated June 8, 2010. It is unclear from the letter whether it is actually dated June 8, 2010, or is referring to an examination given that date. In any event, after receiving notice that she had passed the necessary examination, Respondent applied for and received a license to practice massage therapy in the State of New Jersey. Her original license was issued February 24, 2011, and her current license in New Jersey is valid through November 30, 2014. Respondent received assistance in filling out the paperwork related to her New Jersey application from a friend named “Mike” who is a lawyer. Mike did not charge her for his assistance. According to Respondent, Mike completed the application forms for her and she reviewed them and signed them. There are no allegations in the Amended Administrative Complaint to indicate that her educational program at Healing Hands was not legitimate; that she did not take and pass the National examination; or that any actions taken to obtain her New Jersey license were fraudulent. Respondent was not required to provide any additional coursework or certifications beyond her Healing Hands transcript and proof of passing her national certification exam in order to obtain her New Jersey license. Respondent wished to move to Florida because she had heard that there are good jobs in massage therapy here. She knew that she would have to obtain a Florida license in order to work in Florida. To that end, she sought assistance from a person at Healing Hands that she identified as “Sean.” Although she referred to Sean as one of her instructors who taught the majority of her courses, there is no instructor listed on her transcript whose first name is identified as Sean. Although there is no direct evidence other than Respondent’s testimony regarding Sean, it seems more likely that, rather than being an instructor, Sean was an interpreter for the students who spoke Chinese. Respondent asked Sean to assist her with the process for getting a Florida license because other students had told her he had assisted them in obtaining licenses from other states. She paid Sean $1,000.00 to cover the cost of applying for her Florida license. Some of the money was paid in cash, and some was in the form of a money order. Respondent could not remember how much of the total was in money order form. The application fee and initial license fee are significantly less than $1,000. Respondent received her license to practice massage therapy in Florida on June 5, 2011. However, what actually happened between the time she asked Sean for help and when she got her license is unclear at best. On or about March 17, 2011, Respondent’s State of Florida application for licensure as a massage therapist was submitted to the Florida Department of Health, Board of Massage Therapy. The application was submitted electronically, and does not include Respondent’s signature. Respondent testified that she never filled out the application and never saw it before it was submitted to the Department of Health. While it is clear that Respondent did not personally submit the application, it is not clear who did. There is no competent evidence to demonstrate who completed the application and submitted it to the Board office. Respondent’s application indicated that she did not attend an apprenticeship program. It also indicates that, at the time of the application, she has never held a license or certificate, regardless of status, to practice any licensed profession; that she has not completed a 10-hour Florida laws and rules course; that she has not completed a two-hour course in the prevention of medical errors; and that she has not completed a three-hour HIV/AIDS course. On or about May 9, 2011, a transcript from the Florida College of Natural Health (FCNH) was submitted to the Department of Health in support of Respondent’s application. Also submitted were a Transfer of Credit Form and FCNH Certificates of Completion for 12 hours of Therapeutic Massage Training Program and two hours of Prevention of Medical Errors. Also submitted that day were a transcript from Healing Hands and a copy of the Official Candidate Score Report for the National Certification Examination for Therapeutic Massage and Bodywork, indicating that Respondent had achieved a passing grade. FCNH is an incorporated, nonpublic, post-secondary educational entity which holds a license issued by the Florida Commission for Independent Education, which regulates nonpublic post-secondary institutions pursuant to section 1005.32, Florida Statutes. FCNH is also accredited by the Accrediting Commission of approved schools and Colleges and by the Commission on Massage Therapy. FCNH is a board-approved massage school as that term is defined in section 480.033. In order to be a board-approved massage school, a school is required to offer a course of study that includes, at a minimum, 500 class hours, and is also required to supply to the Board as part of its application a sample transcript and diploma; a copy of curriculum, catalog or other course descriptions; faculty credentials; and proof of licensure by the Department of Education. Fla. Admin. Code Rule 64B7-32.003. As a licensed, accredited, and board-approved massage school, FCNH was and continues to be authorized to evaluate the transferability of credits from another institution to FCNH, including schools that are not board-approved. Any transferred credits could then be applied by FCNH toward the award of a diploma from FCNH, provided that FCNH adhered to the standards in rule 64B7-32.004, and completed, signed, and attached to the school’s transcript, the Board’s Transfer of Credit form, certifying the extent to which a student’s previously-earned credits were acceptable for transfer to FCNH. While the minimum number of class hours for licensure is 500 hours, the program at FCNH consists of 768 hours. At all times relevant to the allegations in the Amended Administrative Complaint, Glenda Johnson was FCNH’s registrar. Ms. Johnson had been employed by FCNH since 1996, and had the apparent authority to evaluate the transferability of credits from other educational institutions to FCNH, and to execute a Transfer of Credit Form certifying to the Board that a student’s credits earned at another institution would be acceptable to FCNH. The Transfer of Credit form stated that FCNH had evaluated Respondent’s transcript from Healing Hands and that the evaluation was conducted on April 18, 2011. The form indicated that Respondent needed ten hours of Florida laws and rules and two hours of medical errors instruction in order to qualify for licensure. The form, which was signed by Glenda Johnson as Registrar of FCNH, accepted a total of 488 hours from Healing Hands, including three hours for HIV/AIDS education. The FCNH transcript, signed by Glenda Johnson as registrar of FCNH, indicated completion of 500 program hours, including three hours for HIV/AID education as of April 22, 2011. It indicates completion of coursework regarding prevention of medical errors or Florida laws and rules. Like the transcript and the Transfer of Credit form, the certificates of completion for Therapeutic Massage Training Program (Transfer of Licensure) and for Prevention of Medical Errors were signed by Glenda Johnson. Respondent’s transcript from Healing Hands was also submitted with the documents received by the Board office on May 9, 2011. The transcript indicates that Respondent completed a 600-hour program at Healing Hands, including three hours for HIV/AIDS awareness. It appears that the documents submitted on May 9, 2011, were most likely submitted to the Board office by Glenda Johnson, as many of them are signed by her and appear to be documents from FCNH, where she worked. As registrar of the school, Ms. Johnson had the apparent authority to evaluate Respondent’s hours at Healing Hands for transfer, and that evaluation can be performed electronically. In other words, a student did not have to visit a FCNH campus in order for his or her prior credits to be evaluated for transfer. Neither Ms. Johnson nor Sean testified at hearing. Respondent testified that she never met Ms. Johnson and never set foot on any of FCNH’s campuses. While it was assumed at hearing that Sean conspired with Ms. Johnson to create false documents in order for Respondent to obtain a Florida license, there was no competent evidence from which such a finding can be made. There is no evidence from which it can be determined whether Sean was complicit in fraud or being duped by Ms. Johnson. The only finding that can be made based on the evidence presented is that someone submitted, on Respondent’s behalf, documents that indicate that sufficient credits were transferred from Healing Hands to FCNH, a board-approved school; completion of all required courses; successful completion of the national examination; and that those documents on their face were sufficient to demonstrate Respondent met the requirements for licensure. Melissa Wade is a managerial employee of FCNH. At some point after Respondent received her license, Ms. Wade received a telephone call from someone from the National Certification Board for Therapeutic Massage and Bodywork (NCB) to report that NCB had received several applications to sit for the national certification examination from purported FCNH graduates whose transcripts seemed irregular. Respondent was not among those individuals identified as having suspicious credentials, as she had taken the examination prior to any purported contact with FCNH. Ms. Wade reviewed the credentials for those applicants identified by NCB, and found several things in the documents that she considered to be suspicious. While these irregularities may have been red flags for Ms. Wade and those who routinely review transcripts, it is not clear that these irregularities would be apparent to a casual observer. However, the students for whom the transcripts and Transfer Forms were prepared were not found in FCNH’s records as actually being students of the school. Ms. Wade confronted Ms. Johnson regarding the irregular transcripts and certificates. Ms. Johnson was terminated by FCNH in December 2011. Ms. Wade notified the Board of Massage that some people who had applied for licensure as graduates of FCNH might not have met the requirements for graduation. The Department initiated an investigation, with which FCNH cooperated. This investigation uncovered approximately 200 graduates, including Respondent, whose credentials FCNH could not confirm. Although Ms. Wade reviewed Respondent’s documents that comprise Respondent’s application for licensure and testified that Ms. Johnson did not have the authority to evaluate the hours from Healing Hands for transfer to FCNH, she did not testify that the courses which were purportedly accepted for transfer would in fact be unacceptable. Anthony Jusevitch, Executive Director for the Board of Massage Therapy, testified that typically it is the school, as opposed to the applicant, that submits transcripts and certificates regarding completion of curriculum requirements. There was no credible, competent evidence to indicate exactly who decided to create the documents submitted to the Board of Massage on Respondent’s behalf, or that Respondent knew of or authorized their creation. What is clear, however, is that Respondent did not know of their creation or their submission to the Board office. Once Respondent was notified of the alleged deficiency in her credentials for her Florida license, she took two home- study courses through Life Education of Florida on the subjects of Medical Errors and HIV/AIDS, for two and three hours, respectively. She also took a Florida Laws and Rules course for 10 hours through Advanced Massage Techniques’ online program. The use of continuing education courses is valid for obtaining initial licensure. Respondent currently meets all of the requirements for licensure in the State of Florida. She continues to live in New Jersey. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, at the time her licensure application was processed by the Board staff, Respondent did not meet the requirements for licensure because she had not taken the required prevention of medical errors and Florida Laws and Rules courses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 9th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2013.
The Issue Whether the Proposed Rules 38F-7.800 thru 7.807, published in Volume 18, No. 19, Florida Administrative Weekly, promulgated by the Department of Labor and Employment Security (DLES) exceeded the authority delegated to the Department by the legislature. Specifically, whether (1) the Department's proposed rules impinge upon the practice of medicine by chiropractors, osteopaths, and homeopaths by restricting the reimbursement for care rendered for certain defined types of care within defined time frames to an occupational therapist and physical therapist, and (2) whether the department followed the correct procedures in approving a new medically necessary service.
Findings Of Fact STANDING The Department of Labor and Employment Security (DLES) is the agency responsible for administering the state's workmans' compensation program and promulgating the rules relating to workmans compensation which are the subject of the challenge in this proceeding. Donald H. Woeltjen, D.C., is a chiropractic physician licensed to practice in the State of Florida pursuant to Chapter 460, Florida Statutes. He treats patients who have been injured on the job, and receives compensation from the treatment of these patients. He is President of the Florida Chiropractic Association, Inc. The Florida Physical Therapy Association, Inc., is a Florida corporation organized by physical therapists licensed and working in the state. The financial interests of physical therapists are directly affected by the proposed rules and the challenge to the proposed rules. The Florida Chiropractic Association, Inc., is a Florida corporation representing doctors of chiropractic in the state. The financial interest of chiropractors are directly affected by the proposed rules. The time frames stated in the preliminary statement above for publishing the proposed rules, filing the petition challenging them, and intervening in this proceeding are adopted and made part of these findings of fact. GENERAL Among the changes which may occur to the injured person is a loss of physical conditioning as the result of the injury and treatment. Before the patient can regain his or her physical abilities, that lost strength and control must be regained. According to the department, the purpose of the proposed rules are to provide health care for this type of remedial treatment to increase endurance, strength, flexibility, and motor control. The department defined this type of medical service as "physical reconditioning." The particular portions of the proposed rules being challenged are indicated by underlining below: Proposed Rule 38F-7.802(1) provides: "Physical reconditioning" means an intensive, goal oriented, systematic process specifically designed to restore an individual's systemic neuromusculoskeletal structure and function (strength, endurance, flexibility and motor control). Proposed Rule 38F-7.802(5) provides: "Physical reconditioning provider" means an occupational therapist, licensed pursuant to Chapter 468, FS., or a physical therapis, licensed pursuant to Chapter 486, FS. Proposed Rule 38F-7.803(2) provides: Physical reconditioning shall not begin before 30 days have elapsed following the injury nor shall it begin or continue after 180 days following the date of injury, except on the specific recommenda-tion of a CARF-accredited interdisciplinary team's evaluation which includes musculoskeletal, behavioral, and vocational issues as well as a functional capacity evaluation (FCE) as provided in Rules 38F-8.021(7), F.A.C. Proposed Rule 38F-7.806(2),e, provides: Acute and sub-acute remedial physical medicine services for the purpose of pain control, muscular relaxation, improved circulation, and remobili-zation to promote normal function, which provided concurrently with a physical reconditioning program, shall be authorized to be provided solely by the physical reconditioning provider and shall be included in the reimbursement for the physical reconditioning program. Examples of modalities and procedures typically rendered in acute and sub-acute levels of care included moist heat, ice, electrical stimulation, massage, low intensity stretching and range of motion exercises, and training in proper body mechanics. Proposed Rule 38F-7.806(2),f, provides: Acute or sub-acute remedial physical medicine services as described in Rule 38F-7.806(1)(e), F.A.C., shall not be reimbursed to any physical medicine provider subsequent to 180 days from the injured employee's date of accident unless there is a medical necessity, documented by objective radiological findings or a neurological deficit or a surgical intervention necessitating the services. In conjunction with the proposed rules, the department is including the treatment modalities included in the numerical codes 97010 through 97145, 97530, 97531, 97540, 97541, 97701, 97720, 97752, and 97799 of the Workers' Compensation Health Care Provider Reimbursement Manual, which is incorporated in the Division's rules 38F-7.020, F.A.C., within "physical reconditioning." These modalities are included in the term "physical medicine" and are within the scope of practice of various types of physicians, to include chiropractors, osteopaths, and homeopaths. The department admits that these treatments are within the scope of practice of physical medicine, and that under the rule these physicians will not be reimbursed for rendering this care. RULE MAKING AUTHORITY Rulemaking authority is granted DLES in Sections 440.591, which provides as follows: 440.591 Administrative procedure; rulemaking authority. The division shall have the authority to adopt rules to govern the performance of any programs, duties, or responsibilities with which it is charged under this chapter. In publishing the proposed rules, the department stated that the laws implemented by the proposed rules are Sections 440.13,(1),(d) and (2),(d), Florida Statutes, which provide as follows: (1)(d) "Medically necessary" means any service or supply used to identify or treat an illness or injury which is appropriate to the patient's diagnosis, consistent with the location of service and with the level of care provided. The service should be widely accepted by the practicing peer group, should be based on scientific criteria, and should be determined to be reasonably safe. The service may not be of an experimental, investigative, or research nature, except in those instances in which prior approval of the division has been obtained. The division shall promulgate rules providing for such approval on a case-by-case basis when the procedure is shown to have significant benefits to the recovery and well-being of the patient. (2)(d) If the employer fails to provide such treatment, care, and attendance after request by the injured employee, the employee may do so at the expense of the employer, the reasonableness and the necessity to be approved by a judge of compensation claims. The employee shall not be entitled to recover any amount personally expended for such treatment or service unless he has requested the employer to furnish the same and the employer has failed, refused, or neglected to do so or unless the nature of the injury required such treatment, nursing, and services and the employer or the superintendent or foreman thereof, having knowledge of such injury, has neglected to provide the same. Nor shall any claim for medical, surgical, or other remedial treatment be valid and enforceable unless, within 14 days following the first treatment, except in cases where first-aid only is rendered, within 14 days following the date of maximum medical improvement of the date of final treatment , and at such intervals as the division by regulation may prescribe, the health care provider or health care facility giving such treatment or treatments furnishes to the employer, or to the carrier if the employer is not self-insured, a report of such injury and treatment on forms prescribed by the division; however, a judge of compensation claims, for good cause, may excuse the failure of the health care provider or health care facility to furnish any report within the period prescribed and may order the payment to such employee of such remuneration for treatment or service rendered as the judge of compensation claims finds equitable. Along with such reports, the health care provider shall furnish a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained. The sworn statement shall read as follows: "Under penalty of perjury, I declare that I have read the foregoing; that the facts alleged are true, to the best of my knowledge and belief; and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained." The proposed rules in no way implement any portion of Section 440.13,(2),(d), supra, quoted above. Section 440.13, supra, makes no mention of "physical reconditioning," "physical therapist," or "occupational therapist." Section 440.13, supra, defines medical services and supplies compensable under the act, and provides a mechanism for expanding those services. Section 440.13, supra, also defines "Health care facility," Health care provider," and "physician." Health care provider is defined by Section 440.13,(1),(b),supra, as, . . . a physician or any recognized practitioner who provides skilled services pursuant to the prescription of or under the supervision or direction of a physician. PHASES FOR RECOVERY It is accepted that an injured person may pass through three general phases between injury and recovery or maximum medical improvement: acute, subacute, and chronic. The acute phase is the period immediately following the injury in which treatment is directed at stopping bleeding, maintaining breathing, setting bones, and reducing or eliminating swelling and pain to promoting healing. This phase last from the time of injury until four to six weeks afterward. Nurses and other health care professionals would render care to a patient during this phase as prescribed and managed by the primary care physician. Primary care physical treatment modalities are defined in the department's manual to include hot or cold packs, traction, electrical stimulation, vasopneumatic devices, paraffin bath, microwave, whirlpool, diathermy, infrared, and ultraviolet. The proposed rules define these modalities as "physical reconditioning" and provide reimbursement only to physical therapists. The subacute phase is an intermediate phase, and lasts from four to six weeks after the injury until about 180 days after the injury. As one might expect, there is an overlapping of acute care and subacute care. Again, nurses and other health care professionals would render care to a patient during this phase as prescribed and managed by the primary care physician. Primary care physical treatment modalities, as described above, may be prescribed by the primary care physician during this phase. The last phase which may occur is the chronic phase in which the nature of the injury or its severity require continuing care or treatment of the residual effects of the injury. For purposes of the department's proposed rule, this phase is deemed to be 180 days after the initial injury on the basis that most people will recover from their injury within 180 days if they are going to recover. If they have not recovered within 180 days, most of them will continue to suffer some chronic effect of the injury. Medical treatment for the chronic or residual effects of injury is managed by the primary care physician. DEPARTMENT'S RATIONALE The department states that it limited reimbursement for physical treatment modalities for "physical reconditioning" because the use of physical therapists and occupational therapists in a Commission on Accreditation of Rehabilitation Facilities (CARF) interdisciplinary team was consistent with the Department's current standards, and education and training of those disciplines were more closely aligned with the concept of physical reconditioning. The department states that chiropractors do not offer the types of structured active exercise and job simulation programs sought to be provided by the proposed rules designed to promote "physical reconditioning." The department also states that it based the proposed rules on its legislative charge to contain the costs of providing health care to injured workers. The challenged rules purportedly reduce the cost of this care by limiting the reimbursement for 'remedial' physical treatment modalities to those rendered by a physical and occupational therapists in the acute, subacute, and chronic phases. COMPLIANCE WITH SECTION 440.13, FLORIDA STATUTES The department's intent was to create this new program, physical reconditioning, and limit reimbursement for providing physical reconditioning services to physical therapists. T-II, 196-197. The proposed rules, while purportedly implementing Section 440.13, Florida Statutes, were not the product of the peer review process for designated new medically necessary procedures outlined in Section 440.13, supra. The principal contributor to the department's rules, a physical therapist, stated he worked in conjunction with a department study group which contained no chiropractic or osteopathic physicians in promulgating the proposed rules. The new service of "physical reconditioning" has been designated by the proposed rules as a medically necessary service without the input of any of the physicians who would prescribe such a service. See T-II,158-159. The proposed rules include physical medicine services previously rendered by all types of physicians within the definition of "physical reconditioning," and deny the physicians reimbursement for those services. These are services which physicians are obliged to provide to their patients under their respective medical practice acts. CARF-ACCREDITED INTERDISCIPLINARY TEAMS The proposed rule provides in pertinent part: Physical reconditioning shall not begin before 30 days have elapsed following the injury nor shall it begin or continue after 180 days following the date of injury, except on the specific recommenda-tion of a CARF-accredited interdisciplinary team's evaluation [.] As used in the Proposed Rule 38F-7.803(2), CARF is either certifying teams or facilities. CARF is the certifying authority for physical therapy facilities operated by physical therapists. It does not certify "interdisciplinary teams" according to its director. CARF will not list a Chiropractic Physician as a provider. The proposed rule's requirement for CARF certification effectively prevents reimbursement of treatment in chiropractic physical therapy facilities. The department buttresses its requirement for "CARF- accredited interdisciplinary team evaluation" upon the department's requirement to publish a directory of rehabilitative facilities pursuant to Section 440.49, Florida Statutes. However, CARF is not mentioned in Section 440.49, supra. Section 440.13,(1),(a), supra, defines health care facility as: . . . any hospital licensed under chapter 395 and any health care institution licensed under Chapter 400. Section 440.13, supra, does not reference CARF and does not consider health care facilities other than those referenced above. The department's proposed rule attempts to create an new class of health care facility (CARF certified) not contemplated in the statute. Requiring CARF accreditation of facilities is contrary to the specific provisions of Section 440.13,(1),(a), supra, the statute which the proposed rules purportedly implement. Another accrediting organization exists, the Joint Commission of Accreditation of Healthcare Organizations (JCAHO), of which CARF was once a part. Chiropractic physicians do maintain facilities which provide a complete range of rehabilitative services. Some of the facilities operated by chiropractors employ physical therapists who the chiropractor supervises. However, the chiropractor would be the provider for reimbursement purposes. CARF is not subject to the regulation of the department, or any other agency of state government. COST CONTROL It was not demonstrated that the proposed rules would decrease the costs of care of injured workers. It was demonstrated that, under the proposed rules, reimbursement would be made to physical therapists for treatments within the area of practice of other health care professionals for care which these health care professionals currently render. To the extent that two providers would now be charging for the services formerly rendered by one provider, the costs of the services would more that likely increase. The cost of administration would certainly increase.
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
