The Issue The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew E. Haynes Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401
The Issue The issue is whether Petitioner can prove Medicaid overpayments to Respondent and, if so, how much Petitioner is entitled to recoup.
Findings Of Fact Respondent is a licensed physician with an office in Stuart. He is Board-certified in neurology and pain medicine. During the audit period and until recently, Respondent was an enrolled Medicaid provider. The audit in this case involved 237 claims on behalf of 30 recipients. Of these 237 claims, Petitioner determined that 59 were overpayments. After determining the total of these 59 overpayments, Petitioner referred the file to a statistician, who extended these 59 overpayments to the total overpayment shown in the Final Audit Report. The statistician based the extension on generally accepted statistical methods that he explained, at the hearing, to everyone's satisfaction, as evidenced by the fact that no one asked to hear more. During the statistician's testimony, the parties agreed that, if the overpayments in the Final Audit Report are altered in the Final Order, Petitioner will refer the new determinations to a statistician for another extension, based again, of course, on generally accepted statistical methods. Recipients will be identified by the numbers assigned them in Petitioner Exhibit 7. The only recipients addressed are those for whom Petitioner has determined overpayments. Nine billings are at issue with Recipient 1. On March 8, 2007, Respondent saw Recipient 1 and billed a CPT Code 99245 office consultation. Petitioner downcoded this to a CPT Code 99244 office consultation and generated an overpayment of $20.39. The CPT describes these office consultation codes as follows: 99244 Office consultation for a new or established patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of moderate complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. 99245 Office consultation for a new or established patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of high complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80 minutes face-to-face with the patient and/or family. Recipient 1 was the victim of a severe beating at the hands of her husband in July 2006. Petitioner's determinations concerning this case partly arose out of the failure of its consultant to find in Respondent's medical records a date of incident, but Respondent provided this information at the hearing. Recipient 1 suffered fractures of the skull and orbital bone from the spousal battery. Continuously since the incident, she had suffered headaches; vertigo, especially when blowing her nose; memory loss; and a complete inability to use her left hand. The initial office consultation was on March 8, 2007, and Respondent billed it correctly, given the complexity of the medical decisionmaking. She had five diagnoses, and Respondent gave her 11 recommendations. Considerable time and effort were required of Respondent to address her case at this initial office consultation, for which there is thus no overpayment. On March 20, 2007, Recipient 1 underwent an MRI of the brain, for which Respondent billed a CPT Code 70553, which is for brain MRIs with and without dye or contrast. Petitioner downcoded this to a CPT Code 70551, with a reduction of $76.59, because Respondent had ordered only an MRI of the brain without dye. Respondent produced at hearing a copy of the prescription, which cryptically states: "MRI Brain c /o contrast." The "c" and the "o" have dashes over them. The "c" with a dash is a traditional abbreviation of cum, so it means "with." The meaning of the dash over the "o" is unclear. Lacking a conjunctive symbol in the space between the letters, it appears that the combination means "without," rather than "with" and "without." The downcoding is appropriate, and the overpayment is $76.59. On the same date, Recipient 1 underwent an MRI of the neck and spine without dye. Petitioner denied this billing, which was for $233.47, for lack of medical necessity due to the absence of appropriate pain symptoms, especially radiating pain. At the hearing, Respondent explained that Recipient 1 suffered from moderate to severe stenosis, and he needed to rule out neck involvement in the patient's inability to use her left arm. The neck and spine MRI was medically necessary, so there is no overpayment for this test. On May 2, 2007, Recipient 1 underwent a muscle test, one limb--billed as CPT Code 95860; a sense nerve conduction test--billed as CPT Code 95904; and a motor nerve conduction test--billed as CPT 95903. On the next day, she underwent the identical tests--all billed under the identical codes. Petitioner denied all of these, and generated overpayments of $40.81, $73.05, $65.60, $40.81, $73.05, and $65.60, respectively. Petitioner denied these tests because Respondent had not ordered them. This does not seem to have been inadvertent on Respondent's part. None of these tests appeared to be part of Respondent's treatment plan for this patient. Petitioner thus determined correctly that these six sums are overpayments. Five billings are at issue with Recipient 3. The first is an office consultation on April 9, 2008. Petitioner has downcoded this from CPT Code 99245 to CPT Code 99244 due to a lack of complexity of decisionmaking. This generates an overpayment of $20.18. Respondent testified that Recipient 3 was a 63-year- old patient with "total body pain." Respondent testified that the patient complained of neck pain, low back pain, and chronic pain, all emanating from a bicycle accident five years earlier that had necessitated the placement of a titanium rod in the patient's leg. However, the eight diagnoses and 18 recommendations do not, on these facts, merit the complexity of decisionmaking claimed by Respondent in his billing. Petitioner has proved an overpayment of $20.18. Recipient 3 raises the issue of the reimbursability of an sNCT administered by Respondent. On April 21, Recipient 3 underwent two procedures billed as sense nerve conduction tests under CPT Code 95904 at $143.70 each. Two days later, Recipient 3 underwent two procedures billed under the same name and CPT Code at $141.70 and $143.70. Petitioner has disallowed all four of these billed amounts. CPT Codes 95900-95904 describe nerve conduction tests that measure the nerve's response to an electrical stimulation in terms of speed, size, and shape. CPT Code 95904 is "nerve conduction, amplitude and latency/velocity study, each nerve; sensory." A procedure meeting the definition of CPT Code 95904 must measure the nerve's response in terms of amplitude and latency/velocity. Amplitude is a measure of size. Latency is a measure of time of travel, so, provided travel distance is known, as it typically is, velocity, or speed, may be derived from latency. The device used by Respondent for all of the sense nerve conduction tests that he billed as CPT Code 95904 was an Axon II device. The inventor of the device testified at the hearing and explained how conventional sense nerve conduction tests, which were developed during World War II, are appropriate for the detection of gross injuries because they detect damage in the large nerve fibers. Fifty to 100 times smaller than these large fibers are the small nerve fibers, which transmit pain. Among these fibers are the fast-transmitting A-delta fibers and the slow-transmitting fibers are C-fibers. The Axon II focuses on the activity of the A-delta fibers. Originally, the witness produced a neurometer that relied on patient response to the application of increasing voltage to the point that the nerve produced a response in the form of a stimulus. Seven years later, in 2002, the witness added a potentiometer, or voltage meter, to allow what he terms a psychophysical assessment of a sensory nerve conduction test that applies electricity and records amplitude, but not latency or velocity. The witness claims that the A-delta fibers are too small for a useful test of latency or velocity. Among A-delta fibers, the only useful parameter for measurement is amplitude. He added that, similarly, the shape of the signal emanating from the nerve is also irrelevant when dealing with the smaller A- delta fibers. Whatever larger issues of medical necessity that may attach to the Axon II device, the issue in this case is whether it may be billed under Florida Medicaid law, which reimburses only those services designated in Chapter 2, Physician Services Coverage and Limitations Handbook. Pursuant to this requirement, Respondent billed the sNCTs that he performed with the Axon II device under CPT Code 95904. But, as noted above, this code requires at least a measure of latency and possibly measures of latency and velocity, and the sNCTs do not provide latency or velocity data. Respondent thus miscoded all of the sNCT procedures that he performed in this case. The sNCTs performed with the Axon II device are described by CPT Code 95999, which is assigned to unlisted neurological diagnostic procedures, and Code G0255, which is a unique code for sNCTs. If the sNCTs performed in this case were properly coded only under CPT Code 95999, another issue would emerge because the fee schedule for this code in the Physician Services Coverage and Limitations Handbook bears an "R" code. This means that the provider performing a procedure falling into the residual category of CPT Code 95999 may submit "either documentation of medical necessity for the procedure performed. . . or information . . . in order to review and price the procedure correctly." Physician Services Coverage and Limitations Handbook, p. 3-3. It is unnecessary to determine whether Respondent complied with the "by-report procedure" established for procedures classified within CPT Code 95999, or whether, consistent with the de novo nature of the proceeding, as discussed in the Conclusions of Law, Respondent could first present such evidence at hearing. The Centers for Medicare and Medicaid Services (CMS) created CPT Code G0255 for sNCTs because it determined that the devices producing this data were not medically necessary, and Medicare and Medicaid would not reimburse claims for these procedures. On March 19, 2004, CMS revised its National Coverage Determinations Manual regarding sNCTs. Noting that these procedures are different from the assessment of nerve conduction velocity, amplitude, and latency, section 160.23 of the manual states that providers may not use codes for tests eliciting nerve conduction velocity, latency, or amplitude for sNCTs. CMS has clearly expressed its intent that, although falling within the residual CPT Code 95999 procedures, sNCTs are ineligible for reimbursement, even by the "by-report procedure." Petitioner thus correctly disallowed the four procedures performed on April 21 and 23, 2008, because they were miscoded and are ineligible for Medicaid reimbursement. Recipient 3 raises another recurring issue. This one concerns an H-Reflex Test, CPT Code 95934. For Recipient 3, it was billed on May 8, 2008, for $27.49. Petitioner properly disallowed the billing because the procedure was not done. Respondent concedes that he never performed an H-Reflex Test on an upper extremity and explains that an inexperienced office worker misconstrued a handwritten mark indicative of a negative to mean that the test had in fact been ordered and conducted. The issue on the H-Reflex Test is not whether Respondent was initially entitled to reimbursement--it was not. The issues are 1) whether this overpayment may be extended to the larger total overpayment determined in this case and 2) whether Respondent has already reimbursed Petitioner for this overpayment of $27.49, if not considerably more. The answer to the first question is no, and the answer to the second question is probably not. The bottom line is that Petitioner may add $27.49 to the total overpayment, but may not include this sum in the extension calculations due to Respondent's timely correction of this billing error. Respondent discovered that his office had wrongly billed this procedure on 28 different occasions, but he (or his wife/office manager) informed Petitioner of this fact prior to the audit. Among the 30 patients randomly selected for the audit, four of them had these incorrect billings for an H-Reflex Test on an upper extremity. For obvious reasons, corrections after the start of an audit may not be allowed, but a timely correction remedies the overbilling, as though it had never taken place. Respondent contends that the situation is even more complicated. Respondent's wife testified that she voided the claims on Petitioner's automated electronic claims paying process, which is the proper procedure, but, for some reason, all other procedures performed on the same day as the procedure date reported for the H-Reflex Tests were also voided. If so, it would mean that Respondent has already reimbursed Petitioner for the $27.49 erroneous billing, and Petitioner must credit Respondent--and possibly extend the credit--for any other allowable procedures performed on the same date. For Recipient 3 on May 8, 2008, for instance, this would amount to a direct credit of $107.78 for the two other allowable procedures performed on the same day that the H-Reflex Test was reported as performed. Respondent's wife failed to detail these wrongfully aggregated voids, nor did anyone on Petitioner's side of the hearing room have any idea what she was talking about. On this record, it is impossible to credit the testimony so as to require Petitioner to restore the value of other procedures billed on the same date as the H-Reflex Test (here, $107.78), extend this value to a much higher credit, or even restore the value of the H-Reflex Test itself ($27.49). Three billings are at issue with Recipient 6. Two of them are sNCTs billed under CPT Code 95904 for two procedures done on February 27, 2008. They were billed at $141.70 and $143.70, respectively. For the reasons discussed above, these are miscoded and are ineligible for reimbursement, so they are overpayments. The third issue involves an office visit on April 3, 2008, which Respondent billed under CPT Code 99211. Respondent admitted at the hearing that he lacked documentation for this office visit, so Petitioner properly disallowed the $12.48 associated with it. One billing is at issue with Recipient 7. It is a brain MRI with and without dye, which is billed on May 23, 2007, under CPT Code 70553. Petitioner properly disallowed the entire $410.85 because it was obviously double-billed, and Petitioner allowed the "other" procedure. Three billings are at issue with Recipient 9. On November 2, 2007, Respondent billed a neck and spine MRI without dye as CPT Code 72141 and a lumbar spine MRI without dye as CPT Code 72148. On November 13, 2007, Respondent billed a head angiography without dye as CPT Code 70544. Citing a lack of medical necessity, Petitioner denied all of these items, which amount to $233.47, $236.65, and $300.09, respectively. At the time of the procedures in question, Respondent had been seeing this 37-year-old patient for only one month. Another physician had referred the patient, who, for three months, had been suffering from headaches in the right frontal temporal area. The pain was severe enough to cause the patient to go to the hospital emergency room three times. Finally, the emergency room physicians instructed the patient not to come to the emergency room, and they referred him to a neurologist--who had been dead for two years at the time of the referral. The emergency room physicians had prescribed Dilaudin, but the patient, who was also on a blood thinner, presented to Respondent with the need for a full neurological workup. He was a construction worker and needed to return to work. Respondent ordered the angiography to rule out vascular malformation, which could have caused the headaches and could be fatal. Respondent ordered the MRIs to assess significant anatomical problems and rule out metastatic disease. These three procedures were medically necessary, so there is no overpayment due in connection with them. One billing is at issue with Recipient 11. On January 10, 2007, Respondent billed an office consultation under CPT Code 99243. Petitioner allowed only an office visit, not an office consultation, resulting in an overpayment of $15.33. Respondent has not contested this adjustment, which appears to be correct. Four billings are at issue with Recipient 15. They are sNCTs billed under CPT Code 95904 for two procedures done on March 4, 2008, and two procedures done on March 24, 2008. Two of the procedures were billed at $141.70 and two were billed at $143.70. For the reasons discussed above, these are miscoded and are ineligible for reimbursement, so they are overpayments. Four billings are at issue with Recipient 16. They are sNCTs billed under CPT Code 95904 for two procedures done on January 22, 2008, and two procedures done on March 5, 2008. They are billed the same as those described in the preceding paragraph. They are miscoded and ineligible for reimbursement, so they are overpayments. Three billings are at issue with Recipient 17. They are sNCTs billed under CPT Code 95904 for one procedure done on March 17, 2008, and two procedures done on March 19, 2008. They are billed at $141.70 for two procedures and $143.70 for the third procedure. They are miscoded and ineligible for reimbursement, so they are overpayments. Four billings are at issue with Recipient 20. They are sNCTs billed under CPT Code 95904 for two procedures done one June 24, 2008, and two procedures done on June 30, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. Six billings are at issue with Recipient 21. Four are sNCTs billed under CPT Code 95904 for two procedures done on February 20, 2008, and two procedures done on February 28, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. The other two billings are for H-Reflex Tests of upper extremities--one on March 25, 2008, and one on April 2, 2008. As noted above, Respondent never performed these tests, but corrected the misbilling prior to the audit. The $27.49 billed for each of these tests may not be extended in determining the total overpayment, but Petitioner may add $54.98 to the total overpayment determination, and Petitioner is not required to credit Respondent for additional sums due to claimed problems in voiding these billings. Four billings are at issue with Recipient 25. They are sNCTs billed under CPT Code 95904 for two procedures done on June 5, 2008, and two procedures done on June 10, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. One billing is at issue with Recipient 26. On February 15, 2007, Respondent billed an office visit under CPT Code 99205, which Petitioner reduced by $16.64 by downcoding it to CPT Code 99204. The CPT Manual describes these office visit codes as follows: 99204 Office or other outpatient visit of the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of moderate complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205 Office or other outpatient visit of the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of high complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. Recipient 26 is a 43-year-old with migraines. She has suffered three headaches weekly since fourth grade. An MRI of her lower back in 2004 revealed a herniated disk, and she has pain in her right leg and foot numbness, if she drives too long. The medical decisionmaking was no more than moderately complex, so Petitioner properly downcoded this office visit, resulting in an overpayment of $16.64. Four billings are at issue with Recipient 27. On January 15, 2008, Respondent billed an office visit under CPT Code 99205, which Petitioner reduced by $18.64 by downcoding it to CPT Code 99204. Recipient 27 was referred by her obstetrician and saw Respondent two and one-half months post-partum. She was unable to lift her right arm. She had pain in her right outside shoulder. Her fingers were numb. Based on a physical examination, Respondent detected nerve damage in the axilla, and she reported cervical radiculopathy. The constellation of symptoms suggested three or four problems that obviously required immediate attention to facilitate her caring for her newborn. The medical decisionmaking was highly complex, so there is no overpayment for this office visit. Respondent billed two sNCTs under CPT Code 95904 for two procedures done on January 24, 2008, for $143.70 each. They are miscoded and ineligible for reimbursement, so they are overpayments. Respondent billed an H-Reflex Test under CPT Code 95934 on February 7, 2008, for $27.49. As noted above, Respondent never performed this test, but corrected the misbilling prior to the audit. The $27.49 may not be extended in determining the total overpayment, but Petitioner may add $27.49 to the total overpayment determination, and Petitioner is not required to credit Respondent for additional sums due to claimed problems in voiding these billings. Petitioner conceded error in its disallowance concerning Recipient 28, for whom Respondent billed $41.00 under CPT Code 95860 for a muscle test conducted on February 21, 2008. See Petitioner's proposed recommended order, paragraph 21. This is therefore not an overpayment. Three billings are at issue with Recipient 29. On February 7, 2007, Respondent billed an office consultation under CPT Code 99245, which Petitioner reduced by $46.24 by downcoding it to CPT Code 99205, which is for an office visit. This was an office visit, not an office consultation, as billed by Respondent, so the downcoding was correct, and there is an overpayment of $46.24. On February 16, 2007, Respondent billed for a neck and spine MRI without dye under CPT Code 72141 and a chest and spine MRI without dye under CPT Code 72146--twice each. Petitioner properly disallowed $357.60 and $305.18 for one pair of these procedures, which obviously were double-billed, so there are overpayments of these amounts. Two billings are at issue with Recipient 30. Respondent billed two sNCTs under CPT Code 95904 for two procedures done on April 14, 2008, for $141.70 and $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. The Final Audit Report claims that the audit cost $5658.09, but Petitioner failed to produce any evidence on these costs.
Recommendation It is RECOMMENDED that: Petitioner submit the file to a statistician for an extension, using generally accepted statistical methods, of the redetermined overpayments, as set forth in the Findings of Fact, to a total overpayment determination. Petitioner issue a Final Order determining that Petitioner is entitled to recoup the total overpayment determined in the preceding paragraph, statutory interest on this sum from the date of the Final Order, and a $4,000 administrative fine for multiple violations of Florida Administrative Code Rule 59G-9.070(7)(e). DONE AND ENTERED this 19th day of May, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of May, 2011. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 L. William Porter, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Monica Ryan, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Jeffries H. Duvall, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
The Issue The issue is whether Petitioner's son is eligible for assistance from the Developmental Services Program.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Petitioner, Donald Hall, Sr., has appealed an eligibility decision of Respondent, Department of Children and Family Services (Department), which denied an application for mental retardation assistance for his son, Donald Hall, Jr. (Don), now almost 21 years of age, under the Developmental Services Program (Program). As a ground, the Department simply stated that the son was "not eligible for assistance." As clarified at hearing, Respondent takes the position that Don does not meet the statutory definition of a retarded person and therefore he does not qualify for assistance. The test for assistance The Program provides services to persons with specific developmental disabilities, such as mental retardation, cerebral palsy, spina bifida, and autism. In order to be eligible for mental retardation assistance, an individual must meet the definition of "retardation," as that term is defined in Section 393.063(44), Florida Statutes (1999). That provision defines the term as meaning "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." As further defined by the same statute, the term "significantly subaverage general intellectual functioning" means "performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department." In this case, the mean score is 100, and the standard deviation is 15; thus, an individual must have general intellectual functioning of at least two deviations below 100, or a score of less than 70, in order to qualify under this part of the definition. To determine intellectual functioning, standardized testing is performed; one such test is the Wechsler Intelligence Scale for Children (Wechsler), as revised from time to time, which was administered to Don. "Adaptive behavior" is defined as "the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community." In plainer terms, adaptive behavior means the individual's ability to function in everyday tasks in the world. This includes such things as providing personal care to oneself, expressing oneself, and finding one's way around. This behavior is measured by instruments such as the Vineland Adaptive Behavior Scale (Vineland). Finally, both the subaverage general intellectual functioning and deficits in adaptive behavior must have manifested and been present before the individual reached the age of 18. In this case, the Department asserts that it is "eighty percent" sure that Don is not mentally retarded. It acknowledges, however, that he does have "significant difficulties in all areas of functioning." More specifically, the Department bases its denial on the fact that Don's 1995 tests indicated that his adaptive behavior was equivalent to other children of the same age, and that his intellectual functioning tests, principally the 1990 test and one score in 1995, revealed that he is in the borderline range between low average and mentally retarded. Don's background Don was born on November 5, 1979. Even while attending an educable mentally handicapped class at Parkwood Heights Elementary School, a public school in Duval County, Florida, Don experienced difficulty in coping with the curriculum. Indeed, after he had already repeated the first and third grades, and he was in danger of failing the fourth grade as well, public school officials transferred Don from the public school to Morning Star School (Morning Star), a private school for students with learning disabilities, including those who are mildly mentally handicapped. Later, when teachers at Morning Star expressed concern that Don had "gone as far as they could help him," and he was too old to retain eligibility, Don was referred by a child study team to Alden Road Exceptional Student Center (Alden Road), a public school (grades 6-12) for mentally handicapped students. Due to his present age (almost 21), he has only one year of eligibility left at Alden Road. At the school, Don receives limited academic instruction and has a supervised job. Don became eligible for Social Security death benefits when his natural mother died. Recently, his parents (father and stepmother) made application for those benefits to be converted to greater, more permanent Social Security benefits because of his condition. Their request was quickly approved, and Donald now receives lifetime monthly Social Security benefits. Don's test results for general intellectual functioning On April 24, 1990, when Don was 10 years old, he was given a psychological evaluation, which included the Wechsler test, to produce verbal, performance, and full scale intelligence quotients (IQs). The verbal IQ is a composite score of several subtests that make up the intelligence scale, including verbal reasoning, verbal memory, and verbal expressive skills. The performance score is based on a group of nonverbal tests, such as putting blocks and puzzles together, sequencing pictures, and marking coded symbols in a timed environment. Those results indicated a verbal IQ of 78, a performance IQ of 77, and a full scale IQ of 76. These scores placed him in the "borderline range" of intellectual functioning somewhere between low average and mentally retarded. The Wechsler test was revised in 1991 to provide a more valid estimate of intellectual functioning compared to the current day population. This resulted in students who retook the test scoring at least 5 points lower, and sometimes even lower, than they did on the earlier version of the test. Therefore, it is not surprising that Don attained lower scores on subsequent tests. The evidence establishes that a child will typically attain higher IQ scores at an earlier age, and that as he grows older, his scores will "tail off." This is because a child's intellectual skills reach a plateau, and the child is not learning new skills at a higher level as his age increases. Therefore, later tests scores are more indicative of Don's intellectual functioning. In 1993, when he was 13 years old, Don was again evaluated by the Duval County School Board and received a verbal IQ of 65, a performance IQ of 54, and a full scale IQ of 56 on the Wechsler test. More than likely for the two reasons given above, these scores were substantially lower than the scores achieved in 1990, and they indicated that Don was "in the range of mild mental retardatation" and therefore eligible for services. In 1995, when Don was 16 years old, he was again given the Wechsler test by a psychologist and was found to have a verbal IQ of 71, a performance IQ of 54, and a full scale IQ of Except for the verbal score, Don's IQ scores placed him in the range of mild mental retardation. On the 1995 verbal IQ score, which is made up of ten subtests, Don had one subtest with a score of 91, which raised his overall verbal IQ score to 71. Without that score, the verbal IQ would have been in the 60s, or in the mildly mentally retarded range. The evidence shows that it is quite common for children with mild to moderate deficiencies to score within the average range on some types of achievement measures. For example, some mildly retarded children will achieve a high level on academic tests, such as in the 80s or 90s, but they have little comprehension as to what those words mean. More than likely, Don fits within this category, and an overall verbal score of less than 70 is more reflective of his intellectual functioning. Based on the 1993 and 1995 tests, Don has general intellectual functioning of at least two deviations below 100, and therefore he qualifies for assistance under this part of the test. Adaptive behavior skills As noted above, this category measures Don's ability to deal with everyday tasks. To be eligible for services, an applicant must have deficits in his adaptive behavior which manifested before the age of 18. Presently, and for eight months out of the year, Don works from noon until 8:00 p.m. Monday through Friday at Jacksonville University "in the skullery room and [doing] tables." He relies on community transportation (from door to door) to get to and from work. When not working, he attends Alden Road where he receives limited academic instruction. According to a Vineland instrument prepared by an Alden Road teacher in December 1995, Don then had an overall adaptive behavior composite of 16 years old, or one roughly equivalent to other children of the same age. More specifically, in terms of communication, he was functioning at the age of 16; in terms of daily living skills, he was reporting at a greater level than the 18-year-old level; and in terms of socialization, he was slightly lower than a 16-year-old. The teacher who prepared the raw data on which the test score was derived was surprised to learn that her data produced a result which indicated that Don had adaptive skills equivalent to someone his own age. Based on her actual experience with him in the classroom, she found Don to be "functioning way below" her own son, who was the same age as Don. She further established that he can follow only the most "simple" instructions, and he will always need someone "looking out for him." This was corroborated by Don's parents and family friends. The Vineland test result also differs markedly from Don's real life experience. Don lives at home with his father and stepmother; he requires "constant supervision all day," even while working; and he is unable to live by himself. He is a "very trusting person," is easily subject to unscrupulous persons who could take advantage of him, and cannot manage his own money. Indeed, his psychologist described him as being "an easy target to be taken advantage of [by others]." Although Don is able to administer to some of his basic personal hygiene needs, he still requires constant reminders to do such things as wash his hair or brush his teeth. Finally, Don has minimal problem solving skills, and he is easily confused by instructions unless they are "very simple." In short, these are real deficits in adaptive behavior and are sufficient to make Don eligible for Program services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for Program benefits for Donald Hall, Jr. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of July, 2000. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josefina M. Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kathryn L. Sands, Esquire 1830 Atlantic Boulevard Jacksonville, Florida 32207-3404 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether the Petitioner is eligible for developmental services provided by the Department of Children and Family Services?
Findings Of Fact The Petitioner, Sharon G. Young, is a 23-year old white female, who is currently a patient in a rehabilitation facility for treatment of permanent disabilities suffered when she contracted encephalitis when she was 19-years old. After a series of serious seizures as an infant, Petitioner was identified has having a seizure disorder and mental disabilities. As a result she was medicated with Phenobarbital and placed in special education programs in the public school system. She was tested in this program periodically. Because Petitioner's current condition prevents assessing her status now to determine what her condition was prior to contracting encephalitis, the degree of her mental disability must be determined using the tests performed by the school system. Reports of tests performed in 1978, 1983, 1986, and 1989 were introduced. The Department's expert, Filipinas Ripka, conducted the review of these tests' reports to determine whether Petitioner was eligible for services. Ms. Ripka was accepted as an expert in psychological testing. She did not examine the Petitioner, and had never tested the Petitioner. Her opinion was based solely upon review of the reports prepared by the school psychologists in the years indicated above. According to her testimony, Ms. Ripka gave different emphasis to the various tests and reached different conclusions regarding Petitioner's condition than the school psychologists. The initial test in 1978 was conducted when Petitioner was approximately 3 years, 7 months old (40 months). That test report references an earlier evaluation on February 16, 1978, when Petitioner was 33 months old. At 33 months the Petitioner exhibited expressive language development of 12 months, receptive language development of 16-20 months, perceptual performance abilities in the range of 20-25 months, social skills at 30 months, fine motor skills at 18-23 months, cognitive/linguistic/ verbal skills at 17-20 months, and gross motor skills at 18-20 months. The school psychologist examined and tested Petitioner, and observed that she was easily distracted and had a short attention span. Assessment of Petitioner was attempted using several different tools. On those tests upon which Petitioner could be scored, she tested in the mild range of retardation with an IQ of 50. She was unable to perform certain of these tests sufficiently to reliably score her; however, the results of those tests were consistent with the findings that she was mildly mentally retarded, i.e., had an IQ of 50. In 1983, the Petitioner was retested. That report references tests performed in 1981, and their results showed Petitioner had a Verbal IQ of 82, a Performance IQ of 73, and a Full Scale IQ of 76. The examiner found the Petitioner was functioning at the borderline level according to a Wechsler Intelligence Scale of 70. However, she demonstrated an inability to copy abstract symbols, which placed her six standard deviations below the expectancy of her age group on the Bender Visual Motor Gestalt Test. She was two standard deviations below her expectancy on the VADS score, indicating a significant weakness for processing digits. Her Draw-A-Person Test was interpreted to indicate neurological impairment. The Petitioner was re-tested in 1986 when she was 11 years old because she was not performing well and was having academic difficulty in her school placement. Petitioner had scored in the 19th percentile in reading, the 16th percentile in math, and 23rd percentile in language on the Stanford Achievement Test. Upon testing, Petitioner had a Verbal IQ of 70, and Performance IQ of 68, and a Full Scale IQ of 68 on the Wechsler Intelligence Scale for Children-Revised. Petitioner had a score of 58 on the Peabody Picture Vocabulary Test, or an age equivalence of 6 years, 6 months. Her Bender Visual Motor Gestalt Test showed an age equivalency of 5 years, 8 months, and her error score was more than four standard deviations below the mean age. Her short-term retention was within one standard deviation relative to chronological are. In 1989, Petitioner was tested for triennial evaluation. Petitioner was 13 years old and cooperated with the examiner. On the Wechsler Intelligence Scale, Petitioner received a Verbal IQ of 64, a Performance IQ of 80, and a Full Scale IQ of 70 plus or minus 3. The examiner concluded that there was a 68 percent probability that her true IQ was between 67 and 73. She showed a significant difference between her Performance IQ and Verbal IQ. The examiner found Petitioner functioned in the lower end of the Borderline range of intelligence, and that her strengths were her ability to visually analyze and her fine motor skills. Her lowest scores were in the area of word knowledge. She demonstrated a processing deficit in visual-motor integration. The Respondent is the state agency charged with providing developmental services to eligible persons in Florida. A score of 70 or less places a person two standard deviations below the mean score on the Wechsler Intelligence Scale.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that the Petitioner is eligible for developmental services. DONE AND ENTERED this 10th day of August, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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) 921-921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998. COPIES FURNISHED: Robert Bencivenga, Esquire Jacksonville Area Legal Aid, Inc. 126 West Adams Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to additional credit for his response to Question Number 146 of the Principles and Practice of Engineering examination administered on October 31 through November 1, 1997.
Findings Of Fact Petitioner took the professional engineering licensing examination with emphasis in mechanical engineering on October 31, 1997. Passing score on the examination was 70. Petitioner obtained a score of 65 and a raw score of 43. A score of 70 would have generated a raw score of 48. Petitioner needed at least 5 additional raw score points to achieve a passing grade and a converted score of 70. Out of a possible 10 points on Question Number 146, Petitioner received a score of 4 points. The National Council of Examiners for Engineering and Surveying (NCEES), the organization that produces the examination, provides a Solution and Scoring Plan outlining the scoring process for question 146. Further, NCEES rescored Petitioner’s test but found no basis to award additional points. There are 5 categories to question 146. All six elements of question 146 must be completely and correctly answered to receive full credit of 10 points for the question. Instructions for the question provide: A perfect solution is not required, as the examinee is allowed minor psychometric chart reading errors (two maximum) or minor math errors (two maximum). The total number of minor errors allowed is two. Errors in solution methodology are not allowed. Examinee handles all concepts (i.e., sensible and total heat, sensible heat ratio, coil ADP and BF, adiabatic mixing, and coil heat transfer) correctly. (emphasis supplied.) Testimony at the final hearing of Petitioner’s expert in mechanical engineering establishes that Petitioner did not qualify for additional points for answers provided for question 146. Petitioner failed to use the definition of bypass factor indicated in the problem. Instead, Petitioner used the Lindenburg method rather than the Carrier method to calculate the bypass factor. The Carrier Method was implied in the problem due to the way the problem was structured. The system outlined in question 146 did not have the special configuration that would be listed if the Lindenburg method were utilized. Petitioner also missed the total coil capacity due to misreading the psychometric chart. By his own admission at the final hearing, Petitioner misread the data provided because they were printed one right above the other in the question. Petitioner read the point on the psychometric chart for an outdoor dry bulb temperature at 95 degrees and a 78 percent relative humidity as the outdoor air. The question required a dry bulb temperature of 95 degrees and a wet bulb temperature of 78 degrees. Petitioner’s misreading constituted an error in methodology as opposed to a minor chart reading error. Question Number 146 on the examination was properly designed to test the candidate’s competency, provided enough information for a qualified candidate to supply the correct answer, and was graded correctly and in accord with the scoring plan.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered confirming Petitioner’s score on the examination question which is at issue in this proceeding. DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Vadim J. Altshuler 9794 Sharing Cross Court Jacksonville, Florida 32257 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida teacher, holding Florida Educator's Certificate 573730 (covering the areas of elementary education and administration/supervision) which is valid through June 30, 2006. At all times material to this case, the Respondent was employed as a teacher at Clearview Elementary School in the Pinellas County School District. In January of 2000, a test known as the Parallel Reading Florida Comprehensive Assessment Test (PR-FCAT) was administered to Pinellas County elementary school students in the third, fourth, and fifth grades. The PR-FCAT is a "practice" examination, but is used by teachers to assess the reading and writing ability of students. School officials also use the test as a predictive tool in identifying students who may be eligible for summer school programs. The test is administered three times a year. Other than encouraging students to complete the test, teachers are directed to refrain from assisting students taking the PR-FCAT. Teachers are not allowed to read questions to students or to record answers. Teachers are not to provide any direction related to the content of student's answers to questions on the test. After the test is administered, the teacher grades the student responses and then returns the materials to the "test coordinator" for the school. The test coordinator for Clearview Elementary in January of 2000 was Joyce Beattie. A "dual scoring" system is used to grade the exam. The test coordinator cuts the score sheets to remove the grades marked by the class teacher, and distributes the score sheets to a second teacher for grading. When the second teacher completes grading the student responses, the score sheets are returned to the test coordinator who consolidates the grades. After administration of the PR-FCAT at issue in this case, Ms. Beattie did not immediately receive the Respondent's test booklets. Eventually, Ms. Beattie asked the Respondent for the materials and received them from her. Contrary to the established procedure, the score sheets returned to Ms. Beattie had been cut and taped back together prior to Ms. Beattie's receipt of the materials. The Respondent asserts that she did not cut the score sheets prior to returning them to Ms. Beattie. Ms. Beattie is certain that when she received the sheets, they were already cut and taped. Ms. Beattie believes that the Respondent directly handed the score sheets to her, but does not recall commenting to the Respondent on the unusual cutting and taping of the score sheets. After administration of the tests and before they were returned to Ms. Beattie, other school employees had access to test materials. When the Respondent initially attempted to turn in the test materials to Ms. Beattie, the Respondent could not locate Ms. Beattie and left them in a mailroom accessible to other employees. Several days later, the test booklets were back in the Respondent's mailbox, apparently having been returned to her. Thereafter, the tests were returned to Ms. Beattie. The evidence is insufficient to establish how, and by whom, the score sheets were cut and taped. In any event, because the score sheets had been altered improperly, Ms. Beattie discussed the issue with an assistant principal, and they decided to replace the cut score sheets and forward the tests to a second teacher for grading. Although Ms. Beattie originally planned to use two teachers identified as "Painter" and "Carlton" to grade the tests taken by the Respondent's class, time for completing the grading process was short, and so she gave the tests to Amy Van Wormer. Ms. Van Wormer is a teacher who was familiar with some of the students in the Respondent's class. As she graded the tests, she noticed that in some answers, the handwriting was inconsistent and appeared to be that of more than one person. She completed her scoring and reported her concern to Ms. Beattie. The school principal and, subsequently, the school district's Professional Standards Office were informed of the situation. Michael Bessette, an administrator from the district's Professional Standards Office, investigated the situation. He met several times with the Respondent. At the first meeting between the Respondent and Mr. Bessette, the Respondent denied having provided any assistance to students in her class during the testing process. A second meeting between the Respondent and Mr. Bessette occurred after the students had been interviewed and a handwriting analysis had been performed. Based on the student interviews and the handwriting analysis, Mr. Bessette had concluded that the Respondent had written one of the student's answers and believed she had written in others. At the second meeting, after confronting the Respondent with the information, the Respondent acknowledged having written one answer in a student's test book, and asserted she had forgotten offering the assistance and therefore had denied providing assistance in the prior meeting. At hearing, the Respondent testified that she observed a student crying with her head down on her desk, that the Respondent inquired as to the problem, and that the student said she was sick and could not write. The Respondent testified that she wrote down an answer dictated by the child. Based on the stipulation between the parties and admitted into evidence, the child was ill and wanted to go home, the child asked the Respondent for help, and the Respondent wrote the answer after the child said what she would have written. At the hearing, the Petitioner presented the deposition testimony of Thomas W. Vastrick, a certified forensic document examiner, who reviewed writing samples and some of the test books at issue in this case. Mr. Vastrick's testimony concurs with the evidence clearly establishing that the Respondent wrote an answer in one student's test book. The Petitioner also alleges that the Respondent supplemented the answers in other students' test books. The evidence fails to support the allegation. Based on the testimony of Mr. Vastrick, the evidence establishes that in answers written by some students were supplemented with additional information, but is insufficient to establish that the Respondent is the person who wrote the additional information. Mr. Vastrick testified that although there were "indications" that the Respondent wrote the additional information, he could not make such a determination "with a degree of certainty."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order reprimanding the Respondent for violating the Principles of Professional Conduct, and placing her on probation for a period of one year. DONE AND ENTERED this 23rd day of August, 2002, in Tallahassee, Leon County, Florida. 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 23rd day of August, 2002. COPIES FURNISHED: Pamela Cooper, Esquire 118 North Monroe Street Tallahassee, Florida 32399 Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Robert F. McKee, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The first issue to be determined is whether Respondent, Annette Jones Walker, violated the provisions of section 1012.795(1)(a), (d), (j), or (k), Florida Statutes (2010), and/or Florida Administrative Code Rule 6A-10.081(3)(a), and (5)(a), (g), and (h). If any violations of these provisions are found, then it must be determined what penalty may be appropriate.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate number 948631, covering the areas of elementary education and English for speakers of other languages, which is valid through June 30, 2019. At all times pertinent to the allegations in the Second Amended Administrative Complaint, Respondent was employed as a teacher at Greensboro Elementary School in the Gadsden County School District (District). In April of 2011, Respondent was teaching fifth grade. Her daughter, Tunisia Hairston, taught fifth grade in the classroom adjacent to hers. Respondent worked as a substitute teacher for approximately 14 years and as a full time teacher for 10 years. She currently teaches second grade in the same school. The Florida Comprehensive Assessment Test (FCAT) is a state-wide assessment administered pursuant to section 1008.22(3)(c), Florida Statutes (2010). For the 2010-2011 school year, the reading component was given to grades three through ten; math was given to grades three through eight; science was given to grades five and eight; and writing was given to grades four, eight, and ten. At issue in this case is the administration of the science portion of the FCAT to fifth graders in Ms. Hairston’s and Ms. Walker’s classrooms at Greensboro Elementary. Pearson, Inc., was the company with whom the State of Florida contracted to provide the 2011 FCAT. The evidence presented indicates that Pearson provided the test booklets to each county, which then distributed the test booklets to each school. The school’s test assessment coordinator would then distribute the tests to each teacher, matched with a list of the students each teacher was supposed to test. After the tests were completed, they were returned by the teacher to the assessment coordinator, who in turn returned the test booklets to the district. Pearson picked up each district’s test booklets and transported them to either Austin, Texas, or Cedar Rapids, Iowa, for scoring. There is no allegation or evidence presented to indicate that there was any irregularity with regard to the test booklets before they arrived at Greensboro Elementary or after the test was completed. Test booklets are “consumable,” meaning that there is no separate answer sheet. Multiple-choice answers are recorded in the test booklet itself. A subcontractor of Pearson’s, Caveon Data Forensics (Caveon), ran an analysis on the erasure marks on the answer portion of the test booklets for each grade, in order to set baseline data for similarities of answers in a particular test group code or school with respect to erasures. Generally, erasure analysis is performed to identify potential anomalies in the testing and to identify potential questions for review in terms of question validity. Standing alone, the erasure analysis provides nothing useful. It must be viewed in conjunction with other information. The erasure analysis performed by Caveon identified 21 Florida schools with scores that were above the threshold set for erasures. Gadsden County had three schools fitting within that category: Stewart Street Elementary School for third-grade reading, Greensboro Elementary School for fifth-grade science, and West Gadsden High School for tenth-grade reading retake. The science classes affected at Greensboro Elementary were those of Ms. Hairston and Ms. Walker. The Superintendent for each district with a high erasure index, including Superintendent Reginald James of Gadsden County, was notified by letter dated June 9, 2011, of the testing groups involved. The letter requested the Superintendent to conduct an internal investigation to examine the administration of the affected tests for any testing irregularities, including testing conditions and test security protocols at the schools. The Superintendent was notified that each school would initially receive an “I” for its 2010-2011 accountability outcomes until the erasure issue was resolved, or the Commissioner determined that sufficient data was available to accurately assign the schools a grade. Deputy Superintendent Rosalyn Smith conducted an internal investigation for Gadsden County, with the assistance of the District’s testing coordinator Shaia Beckwith-James. According to Ms. Smith, the two of them collected documents and submitted them to the Department of Education, with Ms. Beckwith- James performing a lot of “legwork” on the investigation.3/ Both Ms. Hairston and Ms. Walker were interviewed and the interviews recorded. Ms. Smith testified that she did not find that either teacher had violated any testing protocols, but could not explain the high erasures. Both Ms. Walker and Ms. Hairston were removed as administrators from future administrations of the FCAT, a move that both teachers welcomed. No evidence was presented to indicate that the District considered, or that either teacher was notified that, removal as a test administrator was considered discipline. On June 16, 2011, Superintendent James forwarded to DOE information collected as part of the District’s internal investigation related to those schools with high erasure indexes. Superintendent James asked that the Department exclude the scores of any students with an erasure index of 1.3 or higher from the school’s letter grade calculation in order to assign the schools a letter grade as opposed to an “I” rating. On June 29, 2011, Deputy Commissioner Chris Ellington wrote back to Superintendent James regarding the schools in his district with high erasure indexes. With respect to Greensboro Elementary, he stated, While your investigation found no improprieties for Grade 5 Science at Greensboro Elementary School, there is sufficient statistical evidence that student test results may have been advantaged in some way. . . . Because this high percentage of three or more net wrong-to-right erasures is extremely unusual, the Department’s decision is to remove these test results from the 2010-2011 accountability outcomes for this school. Consequently, the “I” designation will be removed and the accountability outcomes will be calculated without these student test results. Greensboro Elementary subsequently received an A grade for the year. On March 6, 2012, then-Commissioner Gerard Robinson notified Superintendent James that he was requesting the Department’s Office of Inspector General to investigate whether there was any fraud with respect to the administration of the 2011 FCAT. The Inspector General’s Office then conducted an administrative investigation of four schools: Chaffee Trail Elementary; Charter School of Excellence; Greensboro Elementary; and Jefferson County Elementary. The Inspector General’s investigation was conducted by Bridget Royster and Anthony Jackson. They received the results from the District’s investigation, and requested testing booklets from the Division of Accountability and Research Management, who had the students’ test booklets for fifth-grade science shipped from Texas. Ms. Royster counted the number of erasures on each test booklet and created answer keys for each student. She also developed questions to ask each student to determine if the erasures were theirs. She and Mr. Jackson interviewed some, but not all, of the students from the two classes based upon their availability at the time, and interviewed Principal Stephen Pitts; Cedric Chandler, the school’s guidance counselor who served as the testing coordinator; and Tamika Battles and Valorie Sanders, who both served as proctors for the 2011 FCAT. They attempted to interview Ms. Walker and Ms. Hairston, who both declined to be interviewed,4/ preferring instead to seek counsel. Ms. Royster and Mr. Jackson recorded answers from the students on the questionnaire form they had developed. However, a review of the handwriting on the forms submitted into evidence reveals that they were filled out by Ms. Royster and Mr. Jackson, as opposed to being filled out by the students themselves. The statements made also refer to the students in the third person, supporting the belief that these are statements as understood by the investigators, as opposed to the actual statements of the students. Based on these interviews, the investigative report prepared by Ms. Royster and Mr. Jackson states in part: “although evidence does not support that fifth-grade teachers, Annette Walker and Tunisia Hairston, altered student answer tests, statements taken during the investigation reveal that they did coach or interfere with their students’ responses during the administration of the FCAT.” Ms. Royster acknowledged that erasures can be caused by students going over their answers a second time; by cheating; by a student’s confusion; by a student changing his or her mind about the answer; and by other unspecified reasons. She also acknowledged that they did not ask the students whether they cheated, as that was not the focus of the investigation. Respondent administered the 2011 Science Comprehensive Assessment Test (FCAT) for students in her classroom on April 19 and 20, 2011. The science portion of the FCAT was the last portion to be administered. It consisted of two sessions on successive days, with 29 questions on one day and 31 questions on the other. Both sessions were 55 minutes long. All 60 questions are in the same booklet. There may be one or two questions per page, depending on the question, so the test booklet is approximately 50-60 pages long. There are different forms of the test, but the core items are the same for each student. Teachers were trained regarding testing protocols and security measures by Cedric Chandler, Greensboro Elementary’s Guidance Counselor and Assessment Coordinator. Each teacher responsible for administering the FCAT was provided with a testing administration manual, including a copy of Florida Administrative Code Rule 6A-10.042, which governs the administration of the test. There is also a form that is signed by educators when they attend the training that indicates that they understand and have read the rules. The FCAT/FCAT 2. Administration and Security Agreement signed by Respondent states in pertinent part: Florida State Board of Education Rule 6A- 10.042, F.A.C., was developed to meet the requirements of the Test Security Statutes, s. 1008.24, F.S., and applies to anyone involved in the administration of a statewide assessment. The Rule prohibits activities that may threaten the integrity of the test. . . . Examples of prohibited activities are listed below: Reading the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY test administration, initial OR make-up, materials must be returned immediately to the school assessment coordinator and placed in locked storage. Secure materials should not remain in classrooms or be taken out of the building overnight. The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. I, (insert name), have read the Florida Test Security Statute and State Board of Education Rule in Appendix B, and the information and instructions provided in all applicable sections of the 2011 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the Florida Comprehensive Assessment Test (FCAT/FCAT 2.0) according to these procedures. Further, I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. Respondent signed the Security Agreement on April 7, 2011. Teachers are also given a specific script to read for every grade and subject being tested. For the fifth-grade science test, the script is approximately five pages long. Teachers are instructed that they are to read the script and that their actions should comport with the directions in the script. Victoria Ash is the bureau chief for K-12 assessment at the Florida Department of Education. Her office is charged with the development, administration, assessment, scoring, and reporting of the FCAT. Ms. Ash indicated that there are no stakes attached to the science test at the state level. When asked about protocols to follow in the administration of the FCAT, Ms. Ash indicated that it is not permissible for teachers to assist students, as teacher interference would cause results not to be an accurate measure of the students’ ability. It is not permissible to walk up to a student, point to a question and answer and tell the student to take another look at that question. Such behavior is not permitted either verbally or by some other physical cue. When a student calls a teacher over during the FCAT to ask a question, the teacher is to avoid any specific response. However, it is acceptable, according to Ms. Ash, for a teacher to say things such as “just keep working hard,” “think about it more, you will eventually get it,” or “do your best.” To say something like “just remember the strategies we discussed” would be, in Ms. Ash’s view, “going right up to the edge” of permissible responses. As long as the response is not to a specific question, a teacher would not be violating the protocols to tell students to read over their answers again, and to make sure the students answered every question. The Second Amended Administrative Complaint alleges that Respondent provided inappropriate assistance to students in her fifth-grade class as they took the 2011 Science FCAT by pointing to incorrect test answers or telling students to look again at certain answers. Five students from Ms. Walker’s class testified at hearing with respect to the 2011 science FCAT examination. Of those five, one student’s testimony could be construed as supporting the allegations in the Administrative Complaint. D.M. testified that Ms. Walker just walked around the classroom. She “wasn’t giving nobody answers. . . . She just tell you that maybe you should redo that one.” She testified that Ms. Walker told her to “relook” at a question, but also testified that she did not think Ms. Walker actually said anything, but rather pointed to the test booklet. D.M. admitted that her memory was not very clear, stating, “it was so long ago.” Students S.B., J.J., A.M., and E.S. also testified. S.B. said she “kind of” remembered the test, but that nothing about the test really stood out. She believed that in response to a question she had about the test, Ms. Walker may have given a general answer, such as, check over the page again. She did not remember Ms. Walker giving any hints to the class. S.B.’s testimony is vague and general at best, and does not support a finding of inappropriate assistance. J.J. testified that she was focused on the test, and was not paying attention to what others were doing. She stated that Ms. Walker did not go around the room giving hints to students during the test, and she did not recall Ms. Walker putting her finger on anyone’s test in a “hinting manner.” Similarly, A.M. testified that she did not remember Ms. Walker going around giving hints about how students should answer questions. Ms. Walker did not give any hints to A.M. and A.M. did not hear Ms. Walker give any hints to anyone else. A.M. stated that it was really quiet in the room, and while it is hard to remember that far back, if a teacher was giving hints on the FCAT, she would remember it. E.S. also testified that it was pretty quiet during the FCAT. She was not paying attention, but did not think that Ms. Walker went around the room giving hints about answers. She admitted that she did not remember much about the test, and could not separate out what happened in the science part of the test as opposed to the rest of the FCAT, but thinks it would have stood out if something inappropriate happened. She was focused on the test but aware of what was going on in the classroom, and Ms. Walker never pointed to anything on her test booklet, and thinks she would have heard something if Ms. Walker said anything inappropriate. Valorie Sanders was the proctor assigned to Ms. Walker’s class.5/ She does not recall exactly what Ms. Walker said during the test, but believed it was for the students to focus. She did not see Ms. Walker do anything that would violate testing protocols, for which she had received training; did not recall Ms. Walker giving hints to any students; did not recall any instance where Ms. Walker implied a student should change an answer from wrong to right; and did not see Ms. Walker point to an answer on a student’s test. Finally, Ms. Walker denied that she gave any inappropriate assistance to students during the test. She stated that she made statements such as “pay attention,” “focus,” “go back over your tests if you finish early,” and “make sure you have an answer for every question,” but did not make any comments about specific questions on the test. Ms. Walker testified that she remained seated during most of the testing because it is painful for her to walk. She did walk around once when she saw Mr. Chandler in Ms. Hairston’s class next to hers, and if she saw students staring off into space she would touch the student’s desk to get them back on task, but did not point to specific questions. Ms. Walker testified that she had been giving tests to students for 20 years and had never been accused of any impropriety. She, like her daughter, welcomed the decision not to proctor any more FCAT tests. After careful review of the evidence presented, it is found that Ms. Walker did not violate testing protocols by providing assistance to students during the 2011 science FCAT. She did not point to specific questions/answers or tell a student (or indicate without talking) that the student should change the answer to any particular question. The type of coaching alleged in the Second Amended Administrative Complaint would be quite difficult to do, given the structure of the test and the testing environment. There is no answer key to the test, and according to Ms. Ash, there are different forms of the test. Some pages have one question while others have two. Students are given a set amount of time to complete the test, but worked at different speeds. Many finished early, while some may not have completed it. In order for Ms. Walker to give the kind of assistance alleged, she would have to stand by the testing student, read the question on the page, see the answer given, recognize it as wrong, and point out the error to the student. Such a scenario is improbable at best, given that the testimony is undisputed that Ms. Walker had a difficult time walking6/ and only walked around the one time she saw Mr. Chandler. The explanation that she would point to the desk in order to gain a child’s attention and get them to focus is reasonable. It is not clear from the record at hearing when the Department of Education began or ended the investigation with respect to Respondent’s license. The Administrative Complaint was signed by the Commissioner on September 18, 2013. Ms. Walker testified that she did not remember receiving the Administrative Complaint, although she knew that there was an Administrative Complaint regarding the FCAT. She received a lot of paperwork during this time period, but did not read it all. She hired Mr. Caldwell to represent her during the investigative stage. On October 3, 2013, an Election of Rights form was filed on Ms. Walker’s behalf requesting time to negotiate a settlement with the Office of Professional Practices, and if an agreement was not reached during that time, electing a formal hearing. The Election of Rights form is signed by counsel, and not by Ms. Walker. On March 13, 2014, Ms. Walker completed an application for renewal form for renewal of her educator’s certificate. The form has a variety of questions, all of which Ms. Walker answered “no.” The questions listed included the following: Have you ever been convicted of a criminal offense? Have you ever been found guilty of a criminal offense? * * * Are there currently charges pending against you for any criminal offense? Have you ever had a professional license or certificate sanctioned or disciplined in this state or any other state? * * * Do you have any current disciplinary action pending in this state or any other state against a professional license or certificate or against an application for a professional license or certificate? Following the questions was a box that stated the following: Florida Law requires you to provide a YES or NO answer to the questions within the Legal Disclosure section of your application, even if previously submitted. If you answered YES to any question in the Legal Disclosure section on the application form, you must provide detailed complete information for each affirmative response within the corresponding section in this Legal Disclosure Supplement. * * * Having a criminal history or administrative sanction against a professional license does not automatically disqualify a person from receiving a Florida Educator’s Certificate, but such incidents will prompt a review by the Office of Professional Practices Services. For the section labeled “Professional License or Certificate Sanction(s),” the form required the applicant to identify the state, year, and issuing agency, as well as the license or certificate affected and the “Sanction and Reason.” Above the signature line, the form states: “I do hereby affirm by my signature that all information provided in this application is true, correct, and complete.” At the time Ms. Walker filled out the application, no discipline against her certificate had been imposed. There was, however, a proceeding in which Petitioner sought to impose discipline against her certificate. However, at that time, there would have been no year, sanction, or reason for her to list in the disclosure supplement. Applications for renewal are completed at the school district and forwarded to the Department of Education for processing. Ms. Walker testified that she went to the district office at the end of the day and was in a hurry when she filled out the application. At first she skipped the question about “current disciplinary action pending” because she did not understand the question. She bubbled it “no” because she was in a hurry. Veronica White of the Department of Education Bureau of Educator Certification explained the process for renewing educator certificates. She has been employed by the bureau since 1998. Ms. White was asked about the meaning of the term “pending disciplinary action” on the application form: Q. Ms. White, you referred to a question, referred to the application, the renew application of Ms. Walker. Let me ask you about a question on that application. When the Education Practices Commission, I will call it EPC. When EPC has ordered discipline, but it has not yet gone into effect; is that pending discipline? A. You are asking me questions that I can’t answer. I don’t work in Professional Practices Services. Q. Okay. A. I can only answer from the certification side. I am sorry. Q. Okay. Can I ask you about the meaning of pending discipline on the application form; is that something you feel you have expertise in, the meaning of pending discipline? A. No. Q. You can’t? Okay. All right. So you do not know the meaning of pending discipline on that application form? A. No, I really don’t. At the time Ms. Walker completed her renewal application, there was no final order imposing discipline against her license. There were disciplinary proceedings seeking to impose discipline that had not yet been resolved. It was not unreasonable, given the structure of the application, for her to answer “no” to the question as phrased, especially in light of the information sought in the legal disclosure supplement. She did not seek to obtain the renewal of her teaching certificate by fraudulent means. Some of Ms. Walker’s evaluations were admitted into evidence. A review of Respondent’s Exhibit 3 reveals that there are multiple copies of some of the evaluations, and the evaluation for 2010-2011 lacks a signature page. With respect to those evaluations that are complete, Ms. Walker was rated “outstanding” and “effective.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order dismissing the Second Amended Administrative Complaint in its entirety. DONE AND ENTERED this 6th day of February, 2015, 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 6th day of February, 2015.
The Issue The issues are whether Respondent violated standardized testing procedures while proctoring the SAT-9 Test for her first grade class, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 467712, covering the area of Elementary Education. Her certificate is valid through June 30, 2007. Respondent has been a public school teacher in Florida for 21 years. During that time, she has worked as a classroom teacher in fifth and first grades at four different schools. At all times material here, Respondent was a first grade teacher at Niblack Elementary School (Niblack) in Columbia County, Florida. Respondent was the curriculum resource teacher at Niblack for the 2000/2001 school term, the first year Niblack was established. She helped organize the new school, selecting textbooks and other school materials. She assisted in the development of school improvement plans and the creation of the Parent Teacher Organization. Respondent worked long hours beyond the normal school hours to ensure the success of Niblack as a neighborhood school. She had good report with the parents and the community. After her first year at Niblack, Respondent returned to the classroom as a first grade teacher because she missed being with the children. Prior to the incident at issue here, Respondent has never been the subject of any disciplinary action. She has always received positive teacher evaluations. For the school years 1999/2000, 2000/2001, and 2001/2002, Respondent's evaluations reflect that she met or exceeded expectations. When school began in the Fall of 2001, Nikki Crawford was the paraprofessional assigned to work with the first grade students at Niblack. In the first week of classes, a conflict arose between Ms. Crawford and some of the first grade teachers, including Respondent. The initial conflict involved the scheduling of Ms. Crawford's time in each of the first grade classrooms. Eventually, Mark Crutcher, Niblack's Principal, and personnel at the school district level had to intervene in order to resolve the conflict. The purpose of the intervention was to clarify that the teachers and not Ms. Crawford were in control of the classrooms. The SAT-9 is a standardized test that is used to evaluate student performance. The staff at Niblack uses the test results as a guide to determine what the students learned over the past year, how they compared to other students nationally, and where the students should be placed the following school year. The test results do not benefit an individual teacher personally or professionally. The school does not receive a grade or funding based on the test results. The administration of the SAT-9 in the first grade is the first time that students at Niblack experience a standardized test. For the 2001/2002 school year, the test was administered in April 2002. The SAT-9 is a secure test that requires teachers and proctors to undergo training on test procedures. Amber Todd, Niblack's guidance counselor and testing coordinator, provided that training for the 2001/2002 school term. During the training, Ms. Todd gave Respondent a copy of the state statutes governing testing procedures. On or about April 5, 2002, Respondent signed a document indicating that she had received a copy of the test security requirements for the 2001/2002 administration of the SAT-9. Ms. Todd gave Respondent a document outlining the general testing procedures at Niblack. The document explained the mechanics of distributing and returning the tests to the guidance counselor's office. In regard to test preparation, the document listed spatial seating as one of several topics. The topics relating to procedures during testing included, but were not limited to, cheating and disruptive behavior. The document did not reference appropriate or inappropriate communication between teachers and students during the test. Ms. Todd gave Respondent a photocopy of the test security page out of the test manual but did not give her a copy of the test manual. However, Ms. Todd informed Respondent that she could review the manual in Ms. Todd's office. Respondent had prior experience in administering the SAT-9. She did not take advantage of the opportunity to review the test manual in Ms. Todd's office prior to the test in April 2002. Ms. Todd informed Respondent that the desks in the classroom needed to be separated. Ms. Todd and the test manual directed Respondent to read the script in the manual verbatim and to strictly follow the time allowed for each test section. Finally, Ms. Todd told Respondent and Ms. Crawford that they had discretion to redirect students but not to coach them. Respondent and Ms. Crawford could tell students to stay in their seats, to stop talking, and to pay attention. Teachers and proctors were allowed to tell students they were working in the wrong section, to erase the answers in the wrong section, and to go back to the correct section. Ms. Crawford was assigned to proctor the SAT-9 in Respondent's class in April 2002. When the test began, Respondent had not separated all of the students' desks. With the exception of a couple of desks that had been moved to one side, the desks were arranged in the normal classroom configuration with desks touching in groups of threes. The only other change in the classroom was that the seating location of some students had been rearranged. Respondent did not separate the desks because she wanted room to walk between the students during the test. The classroom was small and crowded with 18 desks. However, the most persuasive evidence is that Respondent did not make an effort to separate the desks to the extent possible. When Respondent began the first section of the test, she read the script of the instructions to her students. She read the sample question, which was in a story format, and the multiple choice answers as required. Pursuant to the test instructions, Respondent had to direct some of the students to erase their answers to the sample question and to mark the correct answers. Respondent then deviated from the script by reading aloud the first part of the first test question and telling the students to put their finger where the question began. She did not read the answers to the first question. Respondent did not improperly read any other portion of the test. Respondent was responsible for timing each section of the test. At one point during the test, Ms. Crawford asked Respondent how long the students had to finish a test section. Respondent replied that they had until 9:20 a.m. Ms. Crawford's testimony that Respondent began the timed test at 8:54, allowing the students an extra 6 minutes to complete the section is not persuasive. Students are not allowed to work on test sections that are not being timed. In other words, if a student begins to work in section 2 while section 1 is being timed, the teacher and the proctor should tell the student to erase his or her answers in section 2 and go back to work on section 1. During the test, Ms. Crawford informed Respondent that a student named Tyler was working in the wrong section. Respondent then told Tyler to go back to the section she should have been working on. Respondent's communication with Tyler was not improper according to the training provided by Ms. Todd. Ms. Crawford also had to redirect a couple of Respondent's students to erase their answers in the wrong section of the test and to begin working in the correct test section. A second student named Latrice put her head on her desk and closed her booklet within five minutes after a timed test began. Respondent did not believe Latrice could not have finished the test so quickly. Respondent picked up and opened Latrice's booklet. Respondent told Latrice that she could not possibly be finished and needed to go back and check her answers. Respondent also told Latrice she must have some of the answers wrong. Respondent made this statement to Latrice without actually checking to see if any of her answers were wrong. Even so, Respondent's communication with Latrice was inappropriate. If Latrice had finished the test and closed her booklet, Respondent should have taken the booklet without telling Latrice that she needed to keep working because she must have some of the answers wrong. After the test, Ms. Crawford informed Ms. Todd that Respondent had violated the reading portion of the SAT-9 test procedures by failing to separate the desks, by failing to properly time the test on one section, by failing to follow the script, and by improperly coaching two students. Ms. Todd then informed Mr. Crutcher about the allegations of improper test procedures. The Columbia County School District decided to invalidate the reading portion of the SAT-9 test for Respondent's first grade class. They did not invalidate the math portion of the test. The school district then administered a substitute reading test to the students. The Columbia County School District subsequently suspended Respondent without pay from May 21, 2002, through May 28, 2002. Respondent transferred to another Columbia County school for the 2002/2003 school term. As of the date of the hearing, Respondent continued to be employed by the Columbia County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the EPC enter a final order, placing Respondent’s teaching certificate on probation for a period of five years. DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 20th day of November, 2003. COPIES FURNISHED: Betty N. Goggins 1291 East Camp Street Lake City, Florida 32025 William B. Graham, Esquire Ginger L. Barry, Esquire McFarlain & Cassedy 305 South Gadsden Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by Petitioner against Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a Florida teacher, holding Florida Educator's Certificate 780153 (covering the area of Emotionally Handicapped education) valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher of emotionally handicapped third-grade students at Skycrest Elementary School in the Pinellas County School District. Respondent was employed by the Pinellas County School Board as a teacher of emotionally handicapped students for more than six years. The Pinellas County School District assessed student and instructional performance through the use of the "Pinellas Instructional Assessment Portfolio." The portfolio consisted of two tests administered three times each school year. The tests were known as the "Parallel Reading-Florida Comprehensive Assessment Test" and the "Parallel Math-Florida Comprehensive Assessment Test." The portfolio tests were used by the school district to gauge progress towards meeting the Sunshine State Standards established by the Florida Department of Education (DOE) to determine the academic achievement of Florida students. The portfolio tests, administered over a two-day period, also served to prepare students to take the Florida Comprehensive Assessment Test (FCAT). The FCAT was administered according to requirements established though the DOE and was designed to measure progress towards meeting Sunshine State Standards. Third-grade students were required to achieve a passing score on the FCAT in order to move into the fourth grade. One of the purposes of the portfolio tests was to measure student progress and provide information relative to each student's abilities. Based on test results, additional instruction was provided to remedy academic deficiencies and further prepare students to pass the FCAT. Emotionally handicapped students were required to take the reading and the math portfolio tests. The school district had specific procedures in place related to administration of the tests. Teachers responsible for administration of the tests received instruction on appropriate test practices. Respondent was aware of the rules governing administration of the tests. The procedures permitted teachers to offer general encouragement to students, but teachers were prohibited from offering assistance. Teachers were not allowed to read questions to students. Teachers were not permitted to provide any information to students related to the content of test responses. During the December 2002 testing period, Respondent provided improper assistance to the nine emotionally handicapped students he taught. During the test, Respondent reviewed student answers to multiple-choice questions and advised students to work harder on the answers, indicating that the answers were incorrect. Respondent assisted students by reading questions, helping students to pronounce words and phrases, and advising students as to the location in the test materials where answers could be found. Some of Respondent's students were apparently overwhelmed by the test process and ceased working on the tests. Respondent reviewed their progress and advised the students to continue answering questions. There is no evidence that Respondent directly provided answers to students, but Respondent clearly assisted students to determine which responses were correct. The assistance provided by Respondent to his students exceeded that which was allowed under test rules. Respondent acknowledged that the assistance was inappropriate, but asserted that he did so to provide confidence to the students that they could take and pass the FCAT, and advance to the fourth grade. Respondent's improper assistance to his students prevented school officials from obtaining an accurate measurement of the academic abilities of his students. The test results were invalidated and the students were retested. According to the parties, a newspaper article related to the matter was published in a local newspaper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent for violating Florida Administrative Code Rule 6B-1.006(3)(a), and placing him on probation for a period of one year. DONE AND ENTERED this 18th day of May, 2005, 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 18th day of May, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, Esquire Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
