The Issue The issues in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact The Department issued Hao license number MA 60237, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Hao. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes. In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board-approved massage school" within the meaning of that term as defined in section 480.033.2/ At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- (Apr. 25, 2010), which provided in pertinent part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.3/ Regarding these required practices, section 1005.04, Florida Statutes (2009), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; Ensure that all advertisements are accurate and not misleading; Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule; Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and Publish and follow procedures for handling student complaints, disciplinary actions, and appeals. In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. * * * (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere——including from schools that were not Board-approved——could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had apparent authority, at a minimum, to evaluate the transferability of credits, and she possessed actual authority to generate and execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination from FCNH graduates whose transcripts seemed irregular. (Hao's application was not among these; she had taken, and passed, a national licensing examination in February 2010.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected purported anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them. Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Ms. Wade later notified the Board that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Hao. Hao was born in China and at some point immigrated to the United States. In 2007 Hao studied massage therapy at Acupuncture and Massage Institute of America ("AMIA") in Hacienda Heights, California. At AMIA, Hao successfully completed a 750-hour curriculum in massage therapy, graduating on December 18, 2007. Thereafter, Hao relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Hao needed to obtain a Florida license. Because AMIA was not a Board-approved massage school, Hao needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. In June 2010, Hao went to the Pompano campus of FCNH, where she met with Ms. Johnson. Hao decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. Hao gave Ms. Johnson copies of her educational credentials from AMIA. In her capacity as registrar, Ms. Johnson completed a Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson took Hao's FCNH enrollment forms and collected $400.00 in cash as the fee for handling the transfer of Hao's credits and her registration as a student of FCNH. Having collected the money, Ms. Johnson furnished Respondent with several items, including an FCNH document titled "Certificate of Completion — 15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" that bore Ms. Johnson's signature and the school's seal; an FCNH document titled "Certificate of Completion — 2 Hours of Prevention of Medical Errors," which bore FCNH's seal, as well as Ms. Johnson's signature; the Transfer of Credit Form signed by Ms. Johnson, which indicates that FCNH accepted Hao's credits from AMIA; and an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Hao had completed a 500- hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. The several documents comprising Hao's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Ms. Johnson produced a Department of Health application for a massage therapy license and helped Hao fill it out. Hao then signed the three-page application, which is dated June 17, 2010. The application which Hao executed states, truthfully, that she obtained a massage therapy certificate in December of 2007 from AMIA and that the school is not Board approved. The application states, correctly, that Hao completed 750 hours of study at AMIA. The evidence does not establish that Hao knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson forwarded Hao's application and supporting documents to the Department, and soon afterward the Department issued Hao a license to practice as a massage therapist. The evidence fails to support a finding that Hao misrepresented her educational attainments when she met with Ms. Johnson. The evidence, moreover, does not support a finding that Hao knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Hao knew or should have known that FCNH, as the transferee school accepting her AMIA courses, would award her academic credit or credentials which she had not legitimately earned. Hao was not shown to have had any prior familiarity with FCNH forms and documents; its recordkeeping practices; or its internal policies regarding the registration and enrollment of students, the evaluation of transcripts for the purpose of transfer of credits, or the issuance of certificates and other educational credentials. Hao was not shown to have had any reason to suspect that the FCNH Enrollment Agreement she signed would not be properly entered into the school's records, or to believe that the FCNH transcript issued for her benefit purported to award her any credits other than those she rightfully had earned. To sum up Hao's transaction with FCNH, she went to the Board-approved, state-licensed massage school in June 2010, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Hao to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists. Further, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to prepare and certify educational credentials on behalf of FCNH. The evidence does not establish that Hao was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Hao gave Ms. Johnson false information. From Hao's perspective, Ms. Johnson had apparent authority, at least, to accept Hao's credits from AMIA and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Hao has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. FCNH has not initiated a legal proceeding to revoke or withdraw Hao's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Hao is without rights and privileges thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Hao not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2013.
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 August 1, 2007, the Department issued Respondent license number MA 50975, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 3558 Silver Lace Lane, Boynton Beach, Florida 33436. Respondent's Training and Application for Licensure Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. In or around September 2005, Respondent immigrated to the United States and became a citizen of the state of Massachusetts. Some six months later, Respondent relocated to Florida, where she resided until December 2006; at that point, Respondent moved to California to attend Royal Irvin College ("Royal Irvin"), an institution that offered massage therapy instruction. On March 14, 2007, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Subsequently, on July 12, 2007, Respondent passed the National Certification Examination for Therapeutic Massage and Bodywork. At or around that time, Respondent relocated to Pompano Beach area to seek employment as a massage therapist. Owing to the fact that Royal Irvin was not a Board- approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. At the suggestion of an acquaintance, Respondent decided to contact the Florida College of Natural Health ("FCNH"), a Board-approved massage school located in Pompano Beach. An initial inquiry of FCNH was made by Respondent's ex-husband, who, at Respondent's request, telephoned the institution and spoke with one of its employees. Thereafter, on or about July 27, 2007, Respondent and her ex-husband traveled to FCNH's campus and met with the institution's registrar, Glenda Johnson. Respondent's ensuing dealings with Ms. Johnson and her application for licensure 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).2/ 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- (Aug. 16, 1998), 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 246, F.S. [now Ch. 1005, Fla. Stat.], 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.3/ Regarding these required practices, section 1005.04, Florida Statutes (2007), 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 that were not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.4/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with FCNH's registrar, Ms. Johnson, on July 27, 2007. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH.5/ 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 Respondent's ex-husband) 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. At one point during the meeting, and in response to a question from Respondent's ex-husband, Ms. Johnson informed Respondent——erroneously——that her existing coursework was sufficient for licensure and that Respondent could simply transfer her previously-earned credits to FCNH. (Among other things, Ms. Johnson should have advised Respondent that Board- approved coursework in "HIV/AIDS," which Respondent did not complete until after6/ the Complaint was filed in this matter, was required for licensure.) All Respondent needed to do, Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet7/ home and reviewed its contents. As the meeting progressed, Ms. Johnson collected $468.00 in fees from Respondent and helped her complete 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. (Although the evidence establishes that Respondent failed to review the rules and statutes pertaining to massage therapy prior to signing the application——the plain language of which requires applicants to certify that the rules and statutes have been read——the Department failed to charge this conduct in the Complaint.) 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 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; and proof of Respondent's national certification as a massage therapist. 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 August 1, 2007, 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. Subsequent Events 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. 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——falsely, 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 approximately 240 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. Although Ms. Wade credibly testified at hearing that Ms. Johnson should not have awarded 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. Further, and just as important, it has not been shown that Respondent provided Ms. Johnson (or any other FCNH employee) with false information, nor does the evidence support a finding that Respondent knew or should have known that Ms. Johnson's issuance of the Diploma was anything but routine and in accordance with FCNH's academic policies. Under the circumstances, it was entirely reasonable for Respondent to rely upon Ms. Johnson's representations, as Respondent was entitled under the law to receive accurate information from FCNH concerning, among other things, the transferability of credits to FCNH, as well as the relationship between FCNH's academic program and the state's licensure requirements for massage therapists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 18th day of July, 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 18th day of July, 2013.
The Issue The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue for determination in this proceeding is whether Respondent's award of a contract pursuant to a request for proposal was arbitrary, capricious, or beyond the scope of Respondent's discretion.
Findings Of Fact Respondent, like other public school systems in Florida, is required to provide therapy services for students in need of such services. The demand for therapy services far exceeds the available therapists. The shortage of therapists is expected to worsen in the foreseeable future. Respondent historically has been unable to obtain a sufficient number of therapists by direct hire. Respondent has relied on contract services to obtain therapists. Such contract services have been provided by Professional Health Care Services ("Professional"), Cross Country Health Care ("Cross Country"), and Petitioner. In November, 1992, Petitioner was awarded a contract to provide occupational and physical therapy services for the remainder of the 1992-1993 school year. Petitioner provided the number of therapists required by Respondent in a timely manner. Virtually all of the therapists provided by Petitioner during the 1992- 1993 school year were foreign nationals. Some of the therapists had inadequate written and verbal communication skills in the English language. The lack of such communication skills created problems for the faculty, staff, and students, and was the subject of complaints by some parents. Some of the therapists provided by Petitioner during the 1992-1993 school year had no transportation to travel from school to school to perform their regular duties. Respondent determined that the supervision provided by Petitioner was inadequate in light of the communication and transportation problems peculiar to some of the foreign nationals Petitioner provided as therapists. When competent therapists are provided through contract services, Respondent typically attempts to hire such therapists as full time employees in the school system. Provisions in the contract between Petitioner and the therapists provided by Petitioner make it economically impractical for Respondent to hire competent therapists provided by Petitioner. The contract prohibits a therapist from competing with Petitioner (the "non- compete clause") and, alternatively, requires that Petitioner be reimbursed for costs incurred in obtaining the therapist's work permit and temporary license and requires that Petitioner be compensated based on a percentage of an individual therapist's salary. Neither the therapist nor Respondent typically have the funds necessary to make such payments in lieu of the non-compete clause. Petitioner does not permit Respondent to evaluate the therapists provided by Petitioner prior to accepting the therapists. Respondent has no opportunity to interview a therapist and make an independent determination of the therapist's communication skills or means of transportation. For the 1993-1994 school year, Respondent issued a request for proposals to provide 11 occupational therapists and 10 physical therapists who were permanently licensed or, alternatively, a combination of therapists and therapist assistants. The request for proposal was issued to approximately 85 providers. The only providers that responded were Petitioner, Cross Country, and Professional. Each company that submitted a proposal had a prior business history with Respondent. Respondent is familiar with the management personnel of each company. The successful proposal was selected based on three categories of information provided in each proposal. The categories were: therapist or agency qualifications; scope of services; and cost of services. Each responsive company was required to provide information in regard to: the company itself; the availability of therapists, their license status, and their supervision; the costs to Respondent; and the ability of Respondent to recruit the therapists provided by the company. Representatives from each of the three companies that submitted proposals were invited to be interviewed concerning their company's respective proposal. Each representative was interviewed by members of Respondent's administrative staff including Ms. Sue Hays, Supervisor of Occupational and Physical Therapy, Ms. Liz Argott, Director of Exceptional Student Education, Ms. Myrna Robinson, General Director of Special Instructional Services, Mr. Bill Borrer, Supervisor of Purchasing, and Ms. Mary Gillette, Director of Physical/Mental Health and Social Services. Each representative was asked questions that were applicable to all three companies as well as questions that were unique to the specific proposal of each company. The three main issues discussed with Petitioner concerned communication problems posed by foreign nationals, temporary licensing, and adequate supervision. Respondent had previously advised Petitioner to pursue its proposal even though Petitioner represented that virtually all of its therapists would be temporarily licensed. At the interview following the submission of proposals, however, Petitioner notified Respondent that Petitioner would agree to be a secondary vendor only if Petitioner had a minimum of 10 therapists working for the School Board. At the conclusion of the interviews, each of the companies submitting proposals was awarded a numerical score. Cross Country received a score of 410 points. Professional received a score of 331 points. Petitioner received a score of 296 points. Petitioner scored lowest among the three companies that submitted proposals. Cross Country recruits approximately 80 percent of its therapists within the United States. Cross Country provides transportation and housing for its therapists. Both Cross Country and Professional provide permanently licensed therapists. Petitioner's proposal was not the lowest in cost. Petitioner would have charged an additional $1.80 per hour for each therapist in order to provide the supervision required under the circumstances. Moreover, the difference between Petitioner's actual score and a perfect score of 30 for cost of services would not be sufficient to raise Petitioner's score by the amount needed to give Petitioner the second highest score. The matter was submitted to Respondent on July 20, 1993. The contract for primary vendor was awarded to Cross Country and the contract for secondary vendor was awarded to Professional. Respondent's decision was reasonable under the circumstances and was not arbitrary and capricious. Cross Country was the lowest and best proposal. Respondent followed its specifications in the request for proposals and properly utilized the evaluation system prescribed in the request for proposals. Petitioner would have provided temporarily licensed therapists in violation of the specifications in the request for proposals. Respondent did not implicitly waive the express requirement for permanently licensed therapist when Respondent advised Petitioner to pursue its proposal. The request for proposal also sought proposals for assistant therapists which Petitioner was willing to recruit. Even if Respondent was willing to accept temporarily licensed therapists from a secondary vendor, Respondent did not learn until the interview with Petitioner that Petitioner was unwilling to function as a secondary vendor unless Petitioner had a minimum of 10 therapists employed by Respondent. Respondent had a legitimate concern over the ability of therapists provided by Petitioner to communicate verbally and in writing in the English language. While the parties to this proceeding dispute the significance of that issue, Respondent would not have the right to interview prospective therapists and make an independent determination of the ability of the therapist to communicate at a level necessary to provide effective services in the school system. For the same reason, Respondent had no way to make an independent determination of whether a prospective therapist had adequate transportation to perform the services required by Respondent. Respondent historically has been unable to obtain a sufficient number of therapists through direct hires. Respondent was effectively precluded by the terms of the contract between Petitioner and the individual therapists from hiring competent therapists in permanent positions within the school system. The demand for therapy services far exceeds the supply of therapists. The shortage of therapists is expected to worsen in the foreseeable future. The ability to hire competent therapists as permanent members of the staff is a reasonable and legitimate factor for Respondent to consider in determining the highest and best proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's written formal protest. RECOMMENDED this 29th day of September, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4486BID Petitioner's Proposed Findings Of Fact. 1.-3. Irrelevant and immaterial 4.-11. Accepted in substance Rejected as inconsistent with credible and persuasive evidence Accepted in substance Irrelevant and immaterial 15.-18. Accepted in substance Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence 21.-22. Accepted in substance 23.-27. Irrelevant an immaterial Accepted in substance Rejected as inconsistent with credible and persuasive evidence 30.-31. Accepted in substance 32. Rejected for lack of credible and persuasive evidence 33.-35. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance 38.-41. Rejected as inconsistent with credible and persuasive evidence 42. Irrelevant and immaterial 43.-44. Accepted in substance 45.-46. Rejected as inconsistent with credible and persuasive evidence 47.-48. Irrelevant and immaterial 49. Rejected as inconsistent with credible and persuasive evidence 50.-51. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance, but credible and persuasive evidence showed that particular therapists who were foreign trained in fact caused some problems for Respondent Rejected as inconsistent with credible and persuasive evidence Rejected as inconsistent with credible and persuasive evidence Accepted in substance Respondents' Proposed Findings Of Fact. Accepted as part of preliminary statement Irrelevant and immaterial Rejected as recited testimony 4.-9. Accepted in substance 10.-15. Rejected as recited testimony Accepted in substance Rejected as recited testimony COPIES FURNISHED: Dr. Walter L. Sickles, Superintendent School Board of Hillsborough County Post Office Box 3408 Tampa, Florida 33601-3408 M. Teresa Harris, Esquire Post Office Box 90 St. Petersburg, Florida 33731 W. Crosby Few, Esquire Few & Ayala 109 North Bush Street, Suite 202 Tampa, Florida 33602 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida Sydney H. McKenzie General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
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."
