The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On June 18, 2009, the Department issued Respondent license number MA 56426, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 7027 West Broward Boulevard, Box 278, Plantation, Florida 33317. The Events Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In 2006, Respondent immigrated to the United States and, some two years later, enrolled at Royal Irvin College ("Royal Irvin"), an institution located in Monterey Park, California, that offered massage therapy instruction. In March 2009, upon Respondent's successful completion of a course of study comprising 500 classroom hours, Royal Irvin awarded her a degree. Subsequently, on May 22, 2009, Respondent passed the National Certification Examination for Therapeutic Massage and Bodywork. At or around that time, and in response to a help- wanted advertisement, Respondent relocated to Florida to pursue a career in massage therapy. Upon Respondent's arrival in Florida, her potential employer, Woody McLane, advised her that she needed to obtain a Florida license in order to be hired as a massage therapist. Owing to the fact that Royal Irvin was not a Board-approved massage school, only two paths to licensure were available to Respondent: complete a course of study at an approved institution; or, alternatively, satisfy the requirements of an apprenticeship program. On May 26, 2009, Respondent and Mr. McLane traveled to the Pompano Beach campus of the Florida College of Natural Health ("FCNH"), a Board-approved massage school. Respondent's ensuing dealings with FCNH's registrar are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order. FCNH, an incorporated nonpublic postsecondary educational entity, holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).3/ In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board- approved massage school" within the meaning of that term as defined in section 480.033, Florida Statutes. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- 32.003 (Oct. 30, 2007), which provided in relevant part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. (emphasis added). As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.4/ Regarding these required practices, section 1005.04, Florida Statutes (2008), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; * * * In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. . . . No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly-licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere (including from schools such as Royal Irvin, which are not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.5/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with FCNH's registrar, Glenda Johnson, on May 26, 2009. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH.6/ The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Pompano Beach campus. Upon Respondent's arrival at the main entrance, a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent and Mr. McLane (as noted previously, Respondent's potential employer) to her office. During the meeting that ensued, Respondent reiterated (with her limited English skills) her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, as well as proof of her national certification. From what can be fairly inferred from the record, it appears that Ms. Johnson led Respondent to believe, erroneously, that her existing coursework and credentials were sufficient for licensure and that all Respondent needed to do was transfer her previously-earned credits to FCNH. (Among other things, Ms. Johnson should have informed Respondent that Board-approved coursework in "HIV/AIDS" and the "prevention of medical errors"——neither of which Respondent completed until after7/ the Complaint was filed in this matter——was required8/ for licensure.) As the meeting progressed, Ms. Johnson made copies of Respondent's records and asked her to sign an FCNH enrollment agreement, which Respondent did. The agreement reflects (and Respondent's credible testimony confirms) that, on the date of their meeting, Ms. Johnson collected a cash payment from Respondent totaling $418.98.9/ Ms. Johnson also furnished Respondent with a receipt, the face of which indicated that the payment was for a "transfer of [licensure]." In addition to the enrollment agreement, Respondent signed a three-page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. At the end of the meeting, Ms. Johnson advised Respondent that no further action on her part was required and that all she need do was "go home and wait." Thereafter, and on Respondent's behalf, Ms. Johnson submitted to the Department Respondent's application for licensure. The application was accompanied by a number of supporting documents, including two "Certificates of Completion," both of which bore Ms. Johnson's signature and FCNH's official seal. The first such certificate reflected that Respondent had satisfied a two-hour course relating to the prevention of medical errors, while the second indicated the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." The application package prepared and submitted by Ms. Johnson also contained: a "Transfer of Credit Form" signed by Ms. Johnson, which indicated that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a two-credit class involving the prevention of medical errors and a three-credit course concerning "HIV/AIDS"; an FCNH transcript that bore Ms. Johnson's signature and indicated that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; proof of Respondent's national certification as a massage therapist; and a copy of Respondent's permanent resident card. Notably, of the FCNH documents listed above, Respondent was aware only of the "Transfer of Credit Form" prior to the initiation of the current proceeding. Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.") Subsequently, on June 18, 2009, the Department issued Respondent her license to practice massage therapy. With the exception of the instant proceeding, there is no evidence that Respondent's license has been the subject of prior disciplinary action. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected some anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——untruthfully, at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered numerous graduates, including Respondent, whose credentials FCNH could not confirm. Respondent has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. While Ms. Wade testified at hearing that Ms. Johnson should not have conferred Respondent an FCNH Diploma based on Respondent's Royal Irvin credits, there is no evidence that FCNH has initiated a legal proceeding to revoke or withdraw Respondent's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Respondent is without rights and privileges thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 26th day of June, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 26th day of June, 2013.
The Issue The issues in this case are whether Respondent: (a) was convicted of a crime which directly relates to the practice of physical therapy; (b) failed to timely report a criminal conviction to the Board of Physical Therapy Practice; and (c) was terminated from the Medicaid program, as Petitioner has alleged; and, if one or more of these allegations are established, whether the Board should impose discipline on Respondent's physical therapy license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Marly Delis Cueto ("Cueto"), P.T., was licensed as a physical therapist in the state of Florida. Petitioner Department of Health ("Department") has regulatory jurisdiction over licensed physical therapists such as Cueto. In particular, the Department is authorized to file and prosecute an administrative complaint against a physical therapist, as it has done in this instance, when a panel of the Board of Physical Therapy Practice ("Board") has found that probable cause exists to suspect that the therapist has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged Cueto with three such offenses, namely, being convicted of a crime which directly relates to the practice of physical therapy; failing to report this conviction to the Board; and being terminated from the state Medicaid program. It is undisputed that, on November 5, 2008, in a case styled State of Florida v. Cueto, No. 08-16209CF10A, the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, accepted Cueto's plea of nolo contendere to the single count of grand theft (a third-degree felony) with which she had been charged; withheld adjudication of guilt; and sentenced her to a term of two years' probation with special conditions. The conditions were that Cueto pay the Agency for Health Care Administration ("AHCA") $28,000 as restitution to the Medicaid program, from which she had stolen funds; and that she relinquish her Medicare and Medicaid provider numbers while on probation. Cueto did not explain the reasons for, and circumstances surrounding, her plea of nolo contendere. There is, at bottom, no persuasive evidence in the record upon which to base any findings of an exculpatory nature concerning the underlying criminal charge for which Cueto was sentenced. Where, as here, there is insufficient proof of objectively reasonable grounds for entering a plea of no contest, which are consistent with innocence, the undersigned presumes that the licensee entered the plea because of a guilty conscience or in surrender to overwhelming odds of conviction. Thus, it is determined that Cueto's plea of nolo contendere constituted a conviction. The conduct which gave rise to Cueto's conviction is relevant only for the limited purpose of determining whether the crime directly relates to the practice of physical therapy. In this regard, the undersigned finds that during the period from January 1, 2007 to April 22, 2008, Cueto——who, as a licensed physical therapist, was an enrolled Medicaid provider——knowingly and intentionally submitted multiple claims to the Florida Medicaid program for physical therapy services that she had not actually rendered, on which false claims she was paid at least $28,000 to which she was not entitled. It is determined that Cueto was convicted of a crime which directly relates to the practice of physical therapy. Cueto did not report to the Board that fact that she had pleaded nolo contendere to a crime, as she was legally required to do within 30 days after entering the plea. On September 30, 2009, AHCA entered a Final Order terminating Cueto from participation as a provider in the Florida Medicaid program. AHCA imposed this sanction against Cueto pursuant to Florida Administrative Code Rule 59G-9.070(8) (2008)——as it was authorized to do under section 409.913(13), Florida Statutes (2009)——because she had been convicted of grand theft on November 5, 2008. As of the final hearing in this case, Cueto had not been reenrolled as a Medicaid provider.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order finding Marly Delis Cueto guilty of the offense described in section 486.125(1)(c), Florida Statutes, i.e., being convicted of a crime that directly relates to the practice of physical therapy; guilty of the offense defined in section 456.072(1)(x), namely failing to timely report a criminal conviction to the Board; and guilty of the offense defined in section 486.125(1)(k), in consequence of having been terminated from the Medicaid program, which latter constitutes a disciplinable offense under section 456.072(1)(kk). It is further RECOMMENDED that the Board impose an administrative fine of $14,000 and suspend Cueto's physical therapy license for two years, to be followed by two years of probation on such reasonable terms and conditions as the Board establishes, which may include the requirement that Cueto pay in full the $28,000 she has been ordered to remit to AHCA as restitution of the stolen funds. DONE AND ENTERED this 19th day of July, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 July, 2011.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against a licensee on the basis of alleged misconduct set forth in a two-count Administrative Complaint.
Findings Of Fact At all times material to this case, the Respondent, Andrea L. Snyder, was a licensed Massage Therapist, having been issued license number MA-0024773 by the Florida Board of Massage Therapy. At all times material to this case, the Respondent was employed part-time at D & D of Broward, Inc., doing business as "Stress Massage Clinic" at an establishment located at 179 State Road 7, Margate, Florida. On February 9, 1998, Broward County Sheriff Detective Steve Drum entered the Stress Massage Clinic, where he encountered the Respondent. Detective Drum arranged for a one- half hour therapy session with the Respondent for a thirty- dollar fee. The Respondent accepted the fee. The Respondent escorted Detective Drum to a private room and advised him to get comfortable. Detective Drum removed his clothing and then laid himself face down on a massage table, naked, and undraped. Shortly thereafter, the Respondent entered the room and began to massage Detective Drum. After a few minutes, the Respondent asked Detective Drum to turn over. Still naked and undraped, Detective Drum turned over onto his back, and the Respondent continued to massage him. The Respondent then asked Detective Drum if he wanted her to put oil on his genital area. He indicated that he did. The Respondent then indicated that she expected additional compensation for doing so, and Detective Drum agreed to additional compensation. Thereupon, the Respondent removed her shirt, which left her naked from the waist up. She then placed oil on her hands and grabbed Detective Drum's penis and attempted to masturbate him. Detective Drum stopped the attempted masturbation. The Respondent made a second attempt to grab the detective's penis, but he stopped her from doing so, and began to get dressed. Detective Drum then paid the Respondent an additional forty dollars and left the establishment. On March 12, 1998, Detective Drum called the Stress Massage Clinic and made an appointment for a two-girl session. Upon entering the facility on March 12, 1998, Detective Drum was greeted by the Respondent and by another female employee named Kira Talis. Detective Drum paid a fee and was escorted to a massage room. The March 12, 1998, massage session began with Detective Drum lying naked and undraped on a massage table. Both the Respondent and Ms. Talis began performing a massage on Detective Drum. Shortly thereafter, the Respondent and Ms. Talis both removed their shirts and both were naked from the waist up. During the course of the March 12, 1998, massage session, both the Respondent and Ms. Talis attempted to masturbate Detective Drum by grabbing his penis. Detective Drum promptly stopped these attempts to masturbate him by moving the women's hands away from his penis, and by asking them to massage other parties of his body. At the conclusion of the March 12, 1998, massage session, Detective Drum gave a one hundred dollar bill to one of the women to be divided between the two of them.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Massage Therapy issue a final order in this case finding the Respondent guilty of the violations alleged in the Administrative Complaint and imposing a penalty consisting of the following: (a) revocation of the Respondent's license; an administrative fine in the amount of $1,000.00; and assessments of costs related to the investigation and prosecution of this case. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2001.
The Issue Whether the allegations in the Amended Administrative Complaint have been proven by clear and convincing evidence and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Physical Therapy Practice, (Petitioner or Board) is the state agency that licenses and has regulatory jurisdiction of physical therapists. At the time of the hearing, Respondent Raymond Cralle (Cralle) had practiced physical therapy for three decades and was known to colleagues as a competent and innovative professional. He holds licenses in Florida, Virginia, Iowa, and other states by reciprocity, and also holds a specialized certification in physical therapy for persons suffering from injuries to the brain and spinal cord. Cralle received his academic training from the University of Iowa’s School of Allied Health. Upon graduation, he began a hospital based practice at Good Samaritan Hospital in West Palm Beach, Florida, and thereafter built a large and successful private practice in the Greater West Palm Beach area. Over the years, Cralle was also active in professional activities. In addition to speaking, writing and consulting, Cralle was heavily involved in legislative advocacy work on behalf of his profession. Throughout his career, his clinics have usually had some type of formal or informal relationship with schools of physical therapy, offering opportunities for students to intern or to perform other types of work. By 1992, Cralle was operating 13 clinics. That year, he sold some of his practice to HealthSouth and the rest to Novacare, two publicly traded companies. Not ready to retire, Cralle opened another private practice in Delray Beach, Florida. At the time of the events giving rise to the charges against Cralle, his clinic had space to treat eight patients at a time. In addition to Cralle, three physical therapists, one occupational therapist, and one physical therapy intern were working regularly on the premises. In addition, aides were employed to perform non- professional chores such as setting up equipment, assisting patients in making their way to treatment rooms, draping patients, and the like. For approximately three months in the year 2000, the precise dates of which are not reflected in the record, physical therapy student Helen Mesa (Mesa) was employed as an aide in Cralle’s clinic. When treating patients, Cralle was frequently accompanied by a colleague, either an aide or a more highly trained staffer, who would be asked to enter notes on the patient’s chart. The notes were dictated by Cralle. Cralle used staff this way to avoid having to interrupt treatment in order to document treatment. When accompanied by student interns or aides such as Mesa, the dictation served a teaching function as well. Mesa's brief tenure at Cralle’s clinic is consistent with her pattern of unstable employment. Since she left Cralle’s employ, she has worked in at least three jobs, including one in a supermarket and two involving physical therapy, and each of these jobs lasted roughly three months. Mesa’s instability is further evidenced by the fact that initially she resigned from Cralle’s clinic, saying she could not handle the stress of the job and single motherhood. Cralle hired a replacement while Mesa worked out her notice. Then, Mesa changed her mind and asked to stay. Cralle, having promised her job to another, said no. The circumstances surrounding her departure may or may not be the cause of Mesa’s hostility toward Cralle, but the hostility was unmistakable during her testimony in this case. Her demeanor under oath was prosecutorial. She would volunteer information and argue with defense counsel about what questions he should be asking her. As a student, Mesa was taught a method of documenting patient progress known as SOAP notes. The acronym stands for Subjective-Objective-Assessment-Plan. Under the SOAP methodology, the “S(ubjective)” portion includes everything that the patient says about how he feels. The “O(bjective)” portion states what was done with the patient. The “A(ssessment)” portion states what progress the patient is making toward short or long-term goals. The “P(lan)” portion reflects what is expected by or at the next treatment. Cralle does not like the SOAP form of note-taking and generally does not use it in his practice. No law or rule requires the use of the SOAP format in documenting, or “charting” patient progress. However, when assisted by Mesa, Cralle often used the SOAP format when dictating notes, because it was familiar to Mesa from her studies. Mesa is the only complaining witness. At hearing her claims about Cralle’s charting practices went well outside the boundaries of the amended administrative complaint. She claimed that she worked on patients with no supervision and that some of “her” patients did not have an evaluation sheet in their chart, although such sheets are the most basic tool of physical therapy practice. Mesa also provided the only testimony in support of the Board's primary charge, which is that she wrote entire SOAP notes on charts without any input, let alone dictation, from Cralle or other qualified personnel. In addition, Mesa claimed that none of the patient files in which she wrote notes had been signed by Cralle the next time she worked with that patient. Yet, it is undisputed that of the 103 partial patient charts reviewed by the parties during discovery, all but about 15 percent of the patient entries in Mesa's handwriting had been signed off on by Cralle. Of 17 unsigned notes placed in evidence, at least some reflect a degree of technical knowledge and vocabulary that Mesa did not have. Her claim to have written each of them, entirely on her own, is not credited. There was no evidence as to whether, or under what circumstances, a physical therapist is required to initial patient notes, and none of the allegations of the Amended Administrative Complaint allege errors or omissions with respect to Cralle's signature, initials, of lack thereof. There was no evidence that any or all of the alleged charting deficiencies compromised patient care or safety in any way. Rather, as Petitioner’s attorney stated during the questioning of its only other witness, physical therapy expert Linda Nash (Nash), “As you know, this case is about what duties a physical therapist can delegate to unlicensed personnel . . . what are [a] physical therapist’s responsibilities as far as the record keeping itself?” Nash’s answer was instructive. She replied: Well, we have a responsibility to document everything and, and document it in a form be it SOAP or narrative or any way that demonstrates that that patient, where they were the moment that they came in and how they were continuing to progress. For several reasons. Number one, for your own benefit because if you have to defend yourself in a case you have, you know, notes that are documented as to what went on and what you did for insurance purposes. Insurance companies don’t like to pay if they’re, if the patient is not making progress. And you need to be able to document those kinds of things in the notes. After revealing that her primary interest in good documentation is as a means of covering herself in malpractice litigation or to obtain insurance reimbursement, a theme which would recur again on her cross-examination (in her words, “so that I covered my tail”), Nash eventually turned her attention to issues pertinent to the state’s interest in protecting the public’s health and safety, but provided no testimony indicating that any or all of Cralle's charts constituted a danger to any patient. Nash acknowledged that in her years of experience, she has never seen a "perfect chart." Nash, as well as the experts who testified on behalf of Cralle, agreed that it would be improper to delegate to an unlicensed aide the task of assessing the patient and determining the content of a plan of care. The most that could properly be delegated is the documentation of tasks and activities performed by patients in the presence of the unlicensed person. It was also undisputed among the experts that there is nothing improper about dictating notes to an unlicensed aide. The uncorroborated testimony of Mesa that she was delegated tasks which may be lawfully performed only by a physical therapist is not worthy of belief when evaluated in the context of Cralle’s 30 years as a successful and well-regarded physical therapist. Cralle had a number of associates and employees of long standing whose qualifications were entirely appropriate for all aspects of patient care and record keeping. It is illogical to assume that Cralle would delegate vital functions to a brand new employee with no experience, and there is no credible evidence that he did. Petitioner's expert Nash realized that because the state’s entire case rested upon Mesa’s credibility, it would be important ”. . . to insure that no misrepresentations [were] provided, the office manager as well as the current PT techs and PTs are interviewed for accuracy.” Petitioner did not follow-up on that recommendation. Had those individuals been interviewed, and additional office records been examined, the true circumstances surrounding Cralle's record keeping practices could have been ascertained. In the absence of such evidence and witnesses, there is no clear and convincing evidence of the Rule violations alleged. Mesa claimed that two physical therapists working in Cralle’s clinic instructed Mesa not to write in the charts of their patients, and, further, that these therapists complained to Cralle about his practice of permitting Mesa to write in his charts. Petitioner offered no corroboration for these claims, even though one of the physical therapists to whom Mesa's testimony on this matter referred was present and testifying on behalf of Cralle. A number of notes in Mesa's handwriting included frequent use of phrases such as “patient tolerated treatment well due to no complaints” and “continue with plan of care.” These are not models of informative note writing, but neither are they clear and convincing evidence of improper delegation when viewed in light of the entire record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order dismissing the Amended Administrative Complaint against Raymond Cralle. DONE AND ENTERED this 27th day of November, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 27th day of November, 2001. COPIES FURNISHED: Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building Three Tallahassee, Florida 32308 Richard Willits, Esquire 2290 10th Avenue North, Suite 404 Lake Worth, Florida 33461 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Education Practices Commission should discipline the Respondent for statutory and rule violations alleged in the Petitioner’s Administrative Complaint.
Findings Of Fact The Respondent, Peter Zanfagna, holds Florida Educator’s Certificate 1022509 covering the area of physical education, which is valid through June 30, 2017. In August 2013, the Respondent was hired as the physical education teacher for Westbrooke Elementary School in the Orange County School District. The Respondent’s classes combined two regular classrooms and consisted of approximately 42 to 70 children, depending on absences. Without a paraprofessional to assist him for the first two to three weeks of the school year, the Respondent made do with the assistance of a parent of a student and managed his classes well. He was widely considered to be a big improvement over his predecessor in the job. He had good lesson plans, followed his lesson plans and managed to maintain order. He received a good evaluation when his assistant principal, Carl Sousa, assessed him. Once, the school’s administration asked him to avoid using the playground when other classes were using it for recess, as he was doing on what he called “Fun Friday.” The Respondent immediately complied with the request. On Friday, October 11, the Respondent was attempting to supervise a large group of kindergarteners as they moved from the playground to a pavilion where lumber, some with nails sticking out, was stacked in preparation for its use in setting up for the school’s annual fall carnival scheduled for that weekend. Just before the maneuver began, the Respondent explained to the children his safety concerns about them having to walk past the lumber to get where they were going and told them he wanted them to walk in single file behind him. As he began walking along a sidewalk outside some classrooms, several students ran up beside him. Concerned for the students’ safety and upset that they ignored his instructions, the Respondent reprimanded them by yelling or screaming at them in a very loud voice. Two teachers were startled by the loud yelling or screaming. They looked out the window and saw it was the Respondent. One said the yelling or screaming was extreme and in a sharp, harsh tone. The other said the Respondent was pointing a finger six-to-eight inches from the face of one child. She heard him yelling or screaming at the child, “I told you to stay behind me, not in front of me, not next to me, but behind me.” Both thought the Respondent’s behavior was over-the-top, especially for children so young. Neither knew the reason for the Respondent’s behavior. One of the teachers who witnessed the incident said she heard children sobbing and screaming. The other said one child was crying and another was starting to cry. They believed the children were crying because of the Respondent’s loudness. The Respondent conceded that he yelled or screamed at the children to “stop” and “hold up.” He testified that his main concern during this incident, as always, was the safety of the children. He suggested the children’s crying may have been in reaction to his message to them that they could be seriously hurt if they ran into the lumber and nails. The Respondent also pointed out that he was saddled unfairly with the difficult task of supervising and monitoring a very large number of small children without adequate help. Even so, there was no evidence of any other similar incident. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to sit on concrete for entire class periods. When students were misbehaving so as to endanger other students or were not following the Respondent’s instructions, the Respondent would place the students in “timeout” by having them sit apart from the rest of the class for periods of time. Sometimes this occurred when the class was in the pavilion, which is where his classes gathered for attendance and for dismissal. The pavilion had a concrete floor and no walls but had a roof and was not an inappropriate place for students to be in time-out. Early in the school year, the Respondent sometimes left children in time-out for inappropriately long periods of time. When this was reported to administration, the Respondent was given a directive to limit time-out to ten minutes. The Respondent testified that he complied with that directive throughout the rest of the school year until he resigned, effective April 25, 2014. With one exception, there was no evidence that the Respondent failed to comply with this directive. On April 16, 2014, a school psychologist attempted to observe one of the Respondent’s kindergarten or first-grade students to help a school “staffing” determine if the child was autistic and eligible for special education. Near the beginning of the class, while the class was in the pavilion, the Respondent placed the child in time-out for not listening to instructions. The Respondent proceeded with his class, and the child remained in time-out for approximately 20 or more minutes. On that day, the Respondent had no assistant and was attempting to teach a class of 40 or more students by himself. The psychologist conceded that he might have lost track of time and left her “target” in time-out longer than intended. The Respondent did not recall the incident. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to do laps for entire class periods. First, the evidence was clear that the Respondent did not force his students to run laps. They always had the option of running or walking. Second, after attendance was taken in the pavilion, all classes began with stretching and warm-ups. Third, running or walking laps was sometimes a class activity, not discipline. Fourth, when laps were being run or walked, the duration of the activity or discipline could be determined by how well the students were performing; if they were not performing well, extra laps could be added to the activity or discipline. The charge that the Respondent made A.O., a twelve-year old fifth-grader, continue running after she complained of pain in her recently injured ankle arose from an incident on January 15, 2014. As to how recently A.O.’s ankle had been injured, her ankle was in a boot for about a month after the injury, and she had been out of the boot for about a week at the time in question. The evidentiary basis for the rest of the charge consisted of the written statements A.O. and the testimony of her and her mother. A.O. wrote an ambiguous statement the day after the incident. It started saying that the Respondent made the class run for the whole class period but then said he would let some people sit down and make others keep running. She stated her ankle started hurting after 20 minutes, so she asked if she could stop running, but he said to keep running. She did not state that she told the Respondent her ankle hurt. A.O. wrote another ambiguous statement for the Petitioner’s investigator in September 2014. In it, she said the Respondent did not make the class run the whole class period every day. She said, “[t]hat day we were walking and we were not running so he made us run the whole time.” Although “that day” was not specified, it reasonably can be inferred that the investigator was asking about January 15, 2014. In this statement, A.O. did not mention her own ankle hurting but stated another student claimed to have fallen and hurt his ankle, may or may not have told the Respondent about it, and seemed fine after the class. She also stated that when a student actually got hurt in class, the Respondent would send them to the clinic to get ice for the injury. At the hearing, counsel for the Petitioner had A.O. adopt her January statement and led her to testify that she told the Respondent that her ankle hurt, and asked him if she could stop running and sit down, and that he told her “no.” She then said she “kept walking.” Counsel then asked if the Respondent said, “no, keep running,” and she said, “yes.” She then said “no” to the suggestions that she was about to cry and was uncomfortable. She said she told her mother that evening that her ankle was hurting. On cross, she clarified that she “might have not been running as much as the other kids. I only said since it was hurting could I sit down. And you said, no, keep walking.” She then said she could not remember exactly what the Respondent said to her but only knew she asked to stop and sit down, and the Respondent said no, she had to keep going. On redirect, she agreed with counsel for the Petitioner that her memory of events would have been better at the time of her January statement than her September statement. A.O.’s mother testified that A.O. told her on the evening of January 15, 2014, that her ankle was hurting while running, that she asked the Respondent to stop, and that he said, no. She did not give any testimony on whether her daughter told the Respondent that her ankle was hurting. The Respondent denied that A.O. told him her ankle was hurting and that he refused to let her stop. He stood by his testimony that students always were given the option to walk and that he asked A.O. if she could walk slowly, she said she could, and she did. For that reason, he was not aware of any cause for concern. He testified persuasively, with strong corroboration from Robert Flynn, who was the Respondent’s teaching assistant for the last part of the Respondent’s tenure at Westbrooke and is the current physical education teacher there, and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have made any student run or walk if he thought there was a risk of injury. Taken together, the evidence was not clear and convincing that the Respondent made A.O. keep running after being told her ankle was hurting. The charge that the Respondent refused to allow A.L., a ten-year-old fourth-grader, to go to the clinic for an asthma treatment arose from an incident on April 18, 2014. The evidentiary basis for this charge consisted of two written statements by A.L. and the testimony of A.L. and her mother. A.L.’s first written statement was on April 21, 2014. It said she was in the Respondent’s class running at 12:15 p.m. when she had an asthma attack and went up to the Respondent to ask him if she could go to the nurse, “but before I can say anything he said no I can’t go to the nurse because I sometimes ask him if I can go to the nurse for my inhaler. Then I had to walk slow.” A.L. gave a second statement, this time to the Petitioner’s investigator, which was essentially consistent with the first one. Neither statement made it clear that A.L. told the Respondent she was having an asthma attack or that she needed her inhaler. At the hearing, she testified that she was running in class, felt an asthma attack, and asked the Respondent if she could go to the nurse to take her inhaler, and that he said, no, keep running. She then was led by counsel for the Petitioner to testify that she also told the Respondent she “couldn’t run and needed [her] inhaler.” Counsel for the Petitioner also led her to testify that she told her mother after school that she had gone to the Respondent and told “her [sic?]” that “[she] needed to see the nurse.” A.L.’s mother testified that her daughter had tears in her eyes when picked up after school. The mother could tell her daughter was having an asthma attack but no one else in the pickup area noticed. The mother took her daughter to the hospital, where it was determined that after a full medical workup that A.L. had walking pneumonia. A.L. spent a few days in the hospital and returned to school with a new medication for the pneumonia to take in addition to her inhaler. The Respondent denied that A.L. asked him to go to the clinic. He testified persuasively, with strong corroboration from Robert Flynn and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have refused to allow A.L. or any student go the clinic upon request for a medical reason. It appears from the greater weight of the evidence, including A.L.’s shy demeanor, and the number of children in the Respondent’s class, that A.L.’s medical request was not made known to the Respondent at the time. Taken together, the evidence was not clear and convincing that the Respondent refused to allow A.L. to go to the clinic for an asthma treatment. After A.L.’s parents reported to Westbrooke’s administration why A.L. was out of school, the school’s administration blamed the Respondent for refusing to allow A.L. to go to the clinic for an asthma treatment. This was the culmination of deteriorating relations between the Respondent and the school administration that began when the Respondent got his first paraprofessional assistant, Laura Fogarty. Ms. Fogarty was a private school physical education teacher, coach and athletic director in Chicago, who had moved to Orlando and took the paraprofessional job while she was awaiting her Florida certification. The Respondent felt she was undermining and disrespecting him and angling to replace him and felt that the school’s administration was siding with her when disagreements between them were presented to the school’s administration. The Respondent became increasingly antagonistic to Ms. Fogarty and the school’s administration. When the A.L. incident occurred, the school’s administration decided to ask the Respondent to resign or be fired. The Respondent chose to resign. After resigning, the Respondent was employed by a charter school in Manatee County as a physical education teacher, coach, and athletic director. He testified that he has been there for a year and a half with “zero problems.” On cross, it was brought out that the Respondent actually had been on administrative leave for about the last two weeks, apparently since counsel for the Petitioner questioned the charter school’s principal in preparation for the hearing and made the principal aware of the Petitioner’s investigation and disciplinary case against the Respondent’s state educator certificate. Cross-examination of the Respondent by counsel for the Petitioner also attempted to have the Respondent contradict his testimony regarding his positive teaching experiences at other Florida schools before he was hired by Westbrooke. Those attempts at impeachment were unsuccessful, and the Petitioner presented no evidence to contradict the Respondent’s testimony, which is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying the Petitioner’s request for a five- year suspension and dismissing the charges against the Respondent. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016.
