The Issue The issue presented for decision herein is whether or not Respondent's license as a Physical Therapist should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 486, Florida Statutes, as is more particularly set forth hereinafter and which is contained in a Second Amended Administrative Complaint filed December 12, 1986.
Findings Of Fact Respondent, Steven R. Bernstein, is and at all times material, was a licensed physical therapist having been issued license number PT 0002304. (Stipulation) Respondent maintained two separate offices in Fort Lauderdale: 4580 North State Road 7, Suite K, and 2951 Northwest 49th Avenue, Suite 308. (Stipulation) From March 1981 to March 1983, Respondent employed Kathy Schillace as an aide at both of his offices. At no time was Schillace licensed as a physical therapist or a physical therapist assistant. (Stipulation) Schillace's duties included giving treatments to patients such as electrical stimulation, range of motion exercises and ultrasound. To perform these duties, Schillace reviewed patient charts and determined what procedures were needed based on notations which had been recorded by Respondent or one of his licensed physical therapists employed in one of the two offices. Schillace received on the job training from Respondent and Susan Trider, a licensed physical therapist, on how to operate the equipment. Susan Trider supervised Schillace during most of her employment with Respondent. Susan Trider worked for Respondent from November 16, 1981 thru June 21, 1982. Trider was licensed in Florida by endorsement on June 3, 1982. Trider was licensed in Massachusetts in April 1980. (Petitioner's Exhibit 4) From April 1982 to May 1983, Respondent employed Patricia Sears as an aide at both of his offices. At no time was Sears licensed as a physical therapist or a physical therapist assistant. (Stipulation) Sears routinely performed treatments on patients with electrical stimulation, range of motion and ultrasound exercises. Although Sears felt that she did not receive adequate training to do the treatments she performed for patients, it is found that Sears received adequate training and there were ample licensed supervisory personnel on hand to answer any inquires or provide the needed assistance. As example, it is alleged that based on the inadequate training and lack of supervision that Sears received, she burned a patient with the electrical stimulation machine. Upon review of the testimony concerning that incident, it is found that Sears was working under the supervision of an employee of Respondent, Paula Allia, a licensed physical therapist. (Petitioner's Exhibit 1, pages 12, lines 21-25; page 13 lines 1-4). Respondent had a policy of requiring licensed physical therapists to be on the premises at all times while aides were administering treatment to patients. The training included reviewing contra-indications, the indications, what procedures the equipment was capable of doing, reviewing the operating manuals and explaining the various equipment including hands-on training by licensed personnel. (TR 76-77) Prior to administering any procedures to patients, the aides were given a training exam and they had to demonstrate their abilities by passing the exam and by providing treatment to the licensed personnel. Respondent endeavors to insure that the aides were adequately trained by duplicating the training program that he received while in school to become licensed. (TR 77, lines 23-25) After they were trained, the typical case would be that the aides would only perform procedures diagnosed by a licensed physical therapist. While performing the procedures, licensed therapists were on the premises throughout the period during which the procedures were being administered. (TR 78-79) The procedures that were performed by the aides were procedures ordered by private physicians and all patients of Respondent's were referred from private physicians. Respondent constantly checked the administration of procedures by licensed personnel. (Testimony of Fran Wade, TR 97-98. Testimony of Susan Trider, TR 104) During times material herein, the procedures that Respondent's aides performed were the typical procedures engaged in by aides at other hospitals and private physical therapists in South Florida. (Testimony of Todd Williams, (TR 116-117) Respondent's offices were small and it was possible to hear communications between the patients, aides and the licensed physical therapist constantly monitored the treatment modalities administered by the aides. (Testimony of Respondent, R 92) In the opinion of Paul Hughes, an expert physical therapist, a physical therapist actively involved in the treatment or who is in the immediate area to provide supervision to an aide, is engaged in an acceptable practice in Florida. (TR 39) The testimony of other licensed physical therapists herein support Respondent's position that the treatment modalities that Respondent allowed his aides to administer were the type modalities which were considered acceptable by the local community. (Testimony of Diane Siweck, Sue Chestnut, Todd Williams and Fran Wade).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 29th day of June 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of June 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Hubert, Esquire Paragon Center Suite 512 2400 East Commercial Boulevard Fort Lauderdale, Florida 33308 Dorothy Faircloth, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings T. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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 Should discipline be imposed against Respondent's physical therapist license for violation of Sections 486.125(1)(j), and (k), Florida Statutes (2002), and Florida Administrative Code Rule 64B17-6.001(2)(g), (3)(f) and (3)(h)?
Findings Of Fact Stipulated Facts Petitioner is the state agency charged with the regulation of Physical Therapy Practice pursuant to Chapters 20, 456, and 486, Florida Statutes. Respondent, Snehal Jawaharlai Patel, is a licensed Physical Therapist in the State of Florida, having been issued license number PT 20254. Respondent's mailing address of record is 2601 NW 44th Place, Gainesville, Florida 32605. Respondent was an employee working for Rehab Therapy Works and providing physical therapy services at Timber Ridge in February 2003. Respondent provided services to Patient R.G. while she was a resident at Timber Ridge. Dr. Pares was R.G.'s primary physician as reflected on the Timber Ridge Intake Sheet dated February 15, 2003. The February 17, 2003, Plan of Treatment Mr. Patel prepared was approved and signed by Dr. Pares on February 17, 2003. Dr. Cannon's April 14, 2003, correspondence to Timber Ridge indicates that Ms. G's patella was reduced and well- aligned on her February 25, 2003, office visit. The February 25, 2003, office note of Dr. Cannon indicating no bending of the knee was misfiled by Timber Ridge and was not transcribed by Timber Ridge. Patient R.G.: Her Care On February 10, 2003, Patient R.G. was 76-years old when admitted to Munroe Regional Medical Center (MRMC) in Ocala, Florida. The patient was brought to the emergency room at that facility having slipped in a puddle at Langley Medical Center causing her to fall on her right knee. X-ray findings at MRMC revealed a right patella fracture. Patient R.G. was treated by Odest Frank Cannon, Jr., M.D., an orthopedic surgeon. On February 12, 2003, Dr. Cannon addressed the patient's condition by performing a right patella open reduction internal fixation (ORIF). On February 15, 2003, Patient R.G. was transferred from MRMC to Timber Ridge Nursing and Rehabilitation Center (Timber Ridge) in Ocala, Florida, for rehabilitation. The nature of the rehabilitation to be provided at Timber Ridge was in relation to speech therapy, physical therapy, occupational therapy and management of medical care. Principally, the patient was placed at Timber Ridge to receive physical therapy following the knee surgery. When Patient R.G. was referred to Timber Ridge by Dr. Cannon, it was pursuant to the Physicians' Referral Form 3008 (Form 3008), establishing what Dr. Cannon had in mind by way of physician's orders, guidance in caring for the patient at Timber Ridge. The physician's referral was faxed to Timber Ridge on February 15, 2003, and bore Dr. Cannon's signature. In the pre-established format, Form 3008 refers to physical therapy where it reflects Dr. Cannon's comments and execution as follows: PHYSICAL THERAPY: [ ] New Referral [x] Continuation of Therapy - Assist SLR Walker gait - TDWB R leg TREATMENT GOALS: (Please Check) Frequency of Treatment _ Sensation Impaired [ ] Yes [ ] No Restrict Activity [ ] Yes [ ] No [ ] Stretching [ ] Coordinating Activities [ ] Progress Bed to Wheelchair [ ] Passive ROM [ ] Non-weight Bearing [x] Recovery to Full Function [x] Active Assistance [x] Partial Weight Bearing [ ] Wheelchair Independent [x] Active [ ] Full Weight Bearing [ ] Complete Ambulation [ ] Progressive Resistive Precautions: [ ] Cardiac Other Segismundo Pares, M.D., is a family-physician who was employed at Timber Ridge when Patient R.G. was treated. Dr. Pares as a family-physician is licensed in Florida. He is board-certified in family practice, geriatric medicine and hospice and palliative care. In his time at Timber Ridge, he was assigned to manage the medical problems that patients at Timber Ridge may have experienced, such as cardiac disease, lung disease, kidney disease, etc. The orthopaedic condition for patients undergoing rehabilitation at Timber Ridge was the responsibility of a physiatrist, a rehabilitation doctor at Timber Ridge, in conjunction with specialists in physical therapy, occupational therapy and speech therapy. The physiatrist was also involved in other matters of rehabilitation. The physiatrist at Timber Ridge was a Dr. Scott. Dr. Pares relied on Dr. Scott as a physiatrist to attend weekly team meetings, during which Patient R.G.'s physical therapy needs would be discussed. His expectation was that Dr. Scott would address any problems in providing physical therapy to the patient. For the most part, Dr. Pares primarily managed medical care for patients. But he had overall oversight over patient care. In his oversight role, Dr. Pares' plan of treatment for physical therapy in relation to Patient R.G. involved certifying the appropriateness of that therapy, relying upon Respondent who had produced the plan of treatment in that discipline. At present Dr. Pares has no recollection of Patient R.G. while she was at Timber Ridge. Another form of orders established in providing patient care at the facility, was telephone orders or facsimile orders from outside health care practitioners. Dr. Pares as the attending physician at Timber Ridge was responsible for signing off on those orders after review. This process did not involve conversations between Dr. Pares and the health care provider who initiated the telephone order or facsimile order. In addition, Dr. Pares would give his own telephone orders concerning patient care. One of the telephone orders signed off by Dr. Pares was dated February 17, 2003. It refers to: "PT clarification order: PT 5X weekly X 4 weeks for therapy, gait transfer, safety training, neuromuscular . . . " and other matters that Dr. Pares could not interpret at the hearing. The complete clarification order written down by the Respondent stated: "PT Clarification Order: PT 5 x weekly x 4 weeks for therex, gait transfer, safety training, neuromuscular reeducation & modalities PRN." Respondent signed the notations. Dr. Pares signed this outside telephone order on February 20, 2003, as the reviewing authority. Dr. Pares has no recollection of conversations with other persons concerning that telephone order. Respondent wrote the details of the February 17, 2003, telephone order on the form maintained at Timber Ridge in relation to Patient R.G. Dr. Pares relied upon Respondent when signing the telephone order under Respondent's recorded information, without knowledge of where the instructions originated that established the substance of the telephone order received on that date. Respondent's role in that act will be explained. Respondent's Treatment of Patient R.G. After he was licensed as a physical therapist in Florida in 2002, Respondent began his practice. In February 2003 when he provided treatment to Patient R.G., he was a staff physical therapist at Timber Ridge. His duties at that facility were to direct clinical care provided by his assistant, after evaluation and assessment of patients needs, as well as provide treatment and physical therapy to the patients. On February 15, 2003, when Patient R.G. came to Timber Ridge, Respondent's interpretation of the orders from Dr. Cannon on Form 3008 in the physical therapy section, was "Assist with straight leg raise (which is a separate clause), walker gait, touch down weight-bearing right leg, active assistive range of motion, active range of motion, also partial weight-bearing and recovery to full function." These orders were in view of Dr. Cannon's primary diagnosis set forth in the Form 3008 pertaining to a patella fracture, with ORIF on the patient's right knee. Respondent observed that the Form 3008 did not list any precautions in addressing the patient's physical therapy needs. Based upon the information set forth in the Form 3008 Respondent proceeded with the belief that Dr. Cannon expected that the physical therapy for Patient R.G. immediately begin with the performance of active range of motion. This was in keeping with Respondent's experience with this type of patient. At the time of hearing, the Respondent had dealt with approximately a dozen cases in provision of physical therapy to patients with this condition. Nothing in the Form 3008 from Dr. Cannon, pertaining to physical therapy, created an impression in Respondent's mind that he should have not performed range of motion exercises on Patient R.G. There was a question in Respondent's mind concerning the weight-bearing status of Patient R.G., a separate consideration from the question of active range of motion. Respondent addressed the weight-bearing status question by seeking clarification from Dr. Cannon. When Respondent called Dr. Cannon to clarify the weight bearing status, he took the opportunity to make certain of other aspects of the orders previously given by Dr. Cannon, should there be an error of perception concerning other items set forth in Form 3008 pertaining to the patient physical therapy. On February 17, 2003, Respondent wrote the note in the patient's chart concerning Dr. Cannon's physician's telephone order. The note refers to the "PT clarification order" and the expectation that the patient have "therex." Respondent intended by his entry in the patient chart, that he understood Dr. Cannon's orders to include range of motion. The note on the clarification order does not specifically refer to the term "range of motion." It does not specifically refer to "weight bearing," the issue which prompted the call for a clarification order. Respondent concedes that the term "therex" has a number of possible definitions when addressing types of therapeutic exercise. After receiving the clarification order from Dr. Cannon, Respondent prepared a plan of treatment for Patient R.G. It called for active range of motion exercises to be performed by the patient, increasing the range over time. Leslie Sutack, a physical therapy assistant supervised by Respondent provided the physical therapy to Patient R.G. Ms. Sutack's efforts were overseen by Respondent on a daily basis. Respondent was in the same room while Ms. Sutack provided physical therapy to Patient R.G. Dr. Pares signed the plan of treatment for Patient R.G. in relation to physical therapy. Dr. Scott was aware that Patient R.G. was receiving physical therapy that included range of motion. On April 9, 2003, Respondent became aware that Patient R.G. had seen Dr. Cannon earlier and that Dr. Cannon's order was for no range of motion on the part of the patient. Respondent was unaware of this choice by Dr. Cannon prior to that date in April 2003 because of an institutional error at Timber Ridge, in which Dr. Cannon's order against range of motion had been misplaced. Ordinarily, Dr. Cannon's order would have been provided to the physical therapy department at Timber Ridge where Respondent was employed. The order from Dr. Cannon was dated February 25, 2003, prohibiting range of motion therapy. Without awareness, Respondent preceded with range of motion treatment from February 15, 2003 until the April 2003 date based upon his understanding of Dr. Cannon's February 15, 2003, orders in the Form 3008 for Patient R.G. Mike Mandarino was the director of rehabilitation at Timber Ridge while Patient R.G. was undergoing treatment. He has experience with orders from physicians at MRMC for patient care after transferring to Timber Ridge. The orders would be provided on the Form 3008. Absent an addendum to the Form 3008 by the referring physician, Timber Ridge personnel would use the Form 3008 as controlling when determining the doctor's choices for treatment. Mr. Mandarino explains that Dr. Pares' role at Timber Ridge at the time was that as the person responsible for the overall patient care. Dr. Scott oversaw rehabilitation received by a patient. In his testimony, Mr. Mandarino confirmed that Dr. Cannon's February 25, 2003, order prohibiting range of motion for Patient R.G. had been misfiled at Timber Ridge. Expert Opinion Dana Lameier is licensed in Florida as a physical therapist. She has been licensed for 14 years. She earned a Bachelor's degree in physical therapy from the University of South Alabama. She also holds a master's degree in health care administration from Webster University. She actively practices physical therapy. On occasion she has served as a teacher in physical therapy. She had been an adjunct instructor for Pope Community College. Ms. Lameier's present position is as Director of Rehabilitation at Osceola Regional Medical Center. She is responsible for supervising the therapy services provided in the hospital and through the outpatient services in that facility. Those therapy services include physical therapy. Ms. Lameier supervises three physical therapy assistants. She treats patients in the hospital setting and as outpatients. Ms. Lameier has familiarity with the expectations for documentation of services provided by a physical therapist. She gained that understanding through her formal education, continuing education, reading of books, on the job training, and through the Joint Commission on Accreditation of Health Care Organizations (JACHO). Ms. Lameier is familiar with the standards of practice for physical therapists in Florida. She is familiar with the standard of care for physical therapists in addressing orthopaedic cases. Ms. Lameier is familiar with the circumstances of patients who are dealing with recovery from knee surgery, this through her schooling and her work experience, involving somewhere between 20 and 50 cases. Ms. Lameier is uncertain concerning the number of knee rehabilitation patients that she has assisted who have undergone ORIF. Although Ms. Lameier is not certain of the number of patients she has treated following ORIF of the petalla, she agrees that it would be less than 20 patients. The nature of her work done in physical therapy has involved extensive association with orthopedic surgeons. Concerning Patient R.G., Ms. Lameier understood that the patient had a severely comminuted fracture. In addressing rehabilitation for that type of surgery, Ms. Lameier believes that full recovery of the function is expected in six months. Bone healing would take place within six to eight weeks. In addressing a person who had undergone ORIF, before providing physical therapy, Ms. Lameier would wish to know the medical history, such as problems with diabetes, osteoporosis, opteopenia, medications taken by the patient and other matters that might influence the rehabilitation. Age is a factor that enters into the discussion because elder patients heal more slowly and tend to have more medical issues. According to Ms. Lameier, when addressing physical therapy for a patient, the therapist, like other health care professionals, needs to be concerned that no harm befall the patient. If there is a question concerning the approach to care, Ms. Lameier would take a more conservative approach until certain of the underlying status of the patient. Ms. Lameier was accepted as an expert in the standard of care expected of physical therapists practicing in Florida. Ms. Lameier is familiar with the requirements of a plan of a treatment for a patient undergoing physical therapy. Following an evaluation of the patient's condition, consistent with the requirements of law, the physical therapist prepares a plan that lists the short-term and long-term goals for the patient. The plan includes the interventions that are involved with the care, the modalities to be used and a discharge plan. The physical therapist is responsible for creating the plan of care based upon his or her judgment. In performing the evaluation leading to the plan of care, a review of documents pertaining to the patient is made. Tests are performed to ascertain the patient's strength, balance, potentiality for range of motion, all directed toward gaining an impression of the patient's ability to perform physical activities. The plan of care may be changed to address the patient's status at a given time. The plan of care may be referred to as a plan of treatment, as it was in Patient R.G.'s case. According to Ms. Lameier, in relation to telephone orders, the physical therapist is expected to discuss the order with the physician, physician assistant, or nurse practitioner who gave the order and read back the order once the physical therapist has written it down. The written information concerning the order recorded by the physical therapist would reflect the name of the practitioner who gave the order and the physical therapist, with the physical therapist's signature affixed. In reviewing the plan of treatment created by Respondent to address Patient R.G.'s condition, Ms. Lameier commented on information available to the Respondent before he created the plan of treatment. To arrive at her opinions concerning the care Respondent provided Patient R.G., Ms. Lameier reviewed documents from Timber Ridge, MRMC, documentation from Dr. Cannon's office, and certain affidavits. Part of that information came from the Form 3008 created by Dr. Cannon. Ms. Lameier expressed the opinion that Respondent did not meet the standard of care expected of him in preparing the plan of care for Patient R.G. She arrived at this opinion based upon her knowledge of the Form 3008 for the patient, her training as a physical therapist, and basic protocols, for what she describes as the orthopedic process. In her opinion, when you have a patella fracture, such as the case at issue, which she again describes as a severely communited patella fracture, the standard of care is to leave the knee in extension until it is radiographically demonstrated that bone healing is taking place. As a physical therapist, Ms. Lameier believes that the bone healing in a healthy individual generally requires 6 to 8 weeks. In an elderly person with diabetes, and osteoporosis it may take longer, as with Patient R.G. Ms. Lameier mentions the protocol for immobilization of the knee as 3 to 6 weeks in that case. Ms. Lameier's opinion concerning Respondent's care provided Patient R.G. is in recognition of the need for Respondent to practice with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapist, as being acceptable under similar conditions and circumstances. Ms. Lameier does not believe that the Respondent met the standard of care in that he was not knowledgeable of the basic protocols for bone healing and of the orthopedics involved with Patient R.G.; that he performed a range of motion early and without specific recommendation from the orthopedic surgeon, and that his choices could have caused harm or failure of the device that was created to hold the patella together. Respondent had identified range of motion as a goal for Patient R.G. to be carried out by the physical therapist assistant. Ms. Lameier thinks this was inappropriate given the severity of the knee injury experienced by the patient and that the physical therapy was undertaken prematurely. In describing the duties of the doctor and the physical therapist, the referring physician makes the diagnosis for the patient and the physical therapist determines the appropriate rehabilitation to be provided in view of the diagnosis, according to Ms. Lameier. In this example, the physician's diagnosis was fractured patella and the physical therapy treatment that Respondent was to provide was a response to the patient's difficulty walking. Ms. Lameier expressed the opinion that Respondent failed to properly interpret the physician's referral in Patient R.G. Had there been some question or uncertainty on Respondent's part, he should have contacted the physician, the physician assistant, or the nurse practitioner associated with the physician. Ms. Lameier believes that Respondent should have made the physical therapy assistant under his supervision aware of special problems or cautioned that person of special problems or contraindications for Patient R.G., that might limit her range of motion because of the surgery that the patient had undergone. In Ms. Lameier's opinion, having failed to properly interpret the physician's referral in Form 3008, Respondent did not follow up for specific clarification of that referral. He then created a plan of care to utilize what Ms. Lameier refers to as "pretty aggressive range of motion for something that has a protocol of general immobility initially." In addition, Ms. Lameier expressed the opinion that Respondent did not document clearly the precautions, special problems, or contraindications that were involved in the diagnosis. There is a requirement for documentation of contraindications in Ms. Lameier's opinion. Ms. Lameier's reading of Dr. Cannon's instructions in the Form 3008 for physical therapy, is that Dr. Cannon calls for continuation of therapy; assists with SLR, referring to straight leg raises; walker gait; and TWB, referring to touchdown weight- bearing on the right leg. More specifically, the straight leg raise would mean lifting the leg straight up with no bend at the knee, with the pivot point being at the hip. The reference to assist with straight leg raise is describing circumstances after a patella fracture or an injury to the patella. There is a weakness in the quadricep muscle that would prohibit being able to lift the leg independently, so assistance is required. On the subject of any orders that Dr. Cannon gave concerning active range of motion for Patient R.G., Ms. Lameier expressed the belief that the physician included in his treatment goals for active assist movement and active movement, referring to the assist with the straight leg raise. The check off of the word "active" meant active range of motion that the therapist does not participate in. While the Form 3008 could be interpreted as an order to begin an immediate active range of motion for Patient R.G., Ms. Lameier does not believe that it would be a range of motion to the knee. The straight leg raise is a hip exercise. The reference within the Form 3008 to "active assistance" pertained to assistance with the straight leg raise, in her view. Recognizing precautions and contraindications related to the underlying diagnosis for Patient R.G., Ms. Lameier does not believe that Dr. Cannon would ask a physical therapist to perform active range of motion to the knee. This in connection with the reference to assisting with the straight leg raise, meaning that the doctor would like active assistance during those exercises progressing to active range of motion. Ms. Lameier acknowledges that a physical therapist might form a different interpretation of Dr. Cannon's orders but any question about active range of motion to the knee to commence immediately, would raise a "red flag" that would cause her to contact the physician to clarify the order, if that were the interpretation arrived at. However, if a physician wanted to inform a physical therapist of precautions for the patient, such as not bending the knee or keeping the knee immobile at all times, Ms. Lameier would "hope" that it would be stated in the Form 3008. That would be her expectation. No precautions were indicated by Dr. Cannon in the Form 3008 in the case involving Patient R.G. Ms. Lameier's reading of the reference to walker gait, is that when the patient walks she uses a walker and that she only puts her toe down for weight bearing, to be used as a balance on the right leg side. The reference to walker gait does not mean bending the leg, according to Ms. Lameier's interpretation of Dr. Cannon's orders. TWB does not mean bend the leg. Walker gait - TWB does not mean bend the leg. The box that is checked for "active assistance" to be provided Patient R.G., in Ms. Lameier's interpretation, means that the therapist would provide some of the work, in that the patient is unable to do it independently. This reference does not refer to range of motion, nor to the expectation that Patient R.G.'s knee be bent, as Ms. Lameier perceives it. In the box marked "active" in relation to physical therapy to be provided Patient R.G., it is interpreted by Ms. Lameier to mean that the physician wanted the patient to progress toward active movement. As Ms. Lameier comments, "So the straight leg raise needs active assistance to begin; but we would hope that as she recovers and gains more function and strength, that she would be able to perform those actively, meaning the therapist would not need to assist with the movement." According to Ms. Lameier in her understanding of the box marked "partial weight bearing," this would mean " . . . approximately 50 percent of the weight . . . " Ms. Lameier remarks, "and again, the treatment goal when she started out as touch down weight-bearing, meaning just her toe down for balance and the goal being that she would progress to partial weight- bearing." Finally, there is a reference in the physical therapy section in Form 3008 for Patient R.G. checked in the box as "recovery to full function." This is understood by Ms. Lameier to be a long-term goal for the patient to return to full function, live independently, as she had prior to the injury. In commenting on the February 17, 2003, clarification order, Ms. Lameier's interpretation is that it called for five times weekly times four weeks for therex, gait transfer, safety training, neuromuscular-education and modalities PRN, as signed by Respondent. It was also signed by Dr. Pares. Ms. Lameier refers to this as a "standard clarification order" that is required for every patient in the skilled nursing facility. In the sequence, the physical therapist must make certain that there is an initial order for physical therapy, evaluation and treatment, followed by the performance of an evaluation, creation of a plan of care and then a clarification order, which includes all the interventions in the plan that the therapist would use. In her reading, Ms. Lameier does not believe that the February 17, 2003, clarification order makes mention of weight-bearing status pertaining to Patient R.G., nor does it contain any direction on performing bending of the knee exercises. Ms. Lameier's emphasis on the February 17, 2003, telephone order was that it did not specify or confirm active range of motion for Patient R.G. It did not include an indication or directive to bend the knee to perform knee exercises involving bending of the knee; and it did not comment on weight-bearing. Her interpretation of "therex" is that it is a broad term intended to refer to therapeutic exercises, everything from aerobic exercises, stretching, strength exercises, range of motion, etc. The reference to the term in this case is not apparent as to the exercise(s) expected to be performed by Patient R.G., according to Ms. Lameier. Ms. Lameier expressed the opinion that Respondent failed to ask for clarification or contraindicators for Patient R.G., in that she finds no indication in the patient chart that supports that Respondent made contact with the physician, or others on the physician's staff to make those determinations. Assuming that Respondent called the orthopedic physician to receive clarification with regard to weight bearing and range of motion, Ms. Lameier did not find documentation in the Timber Ridge records to reflect receipt of a clarification order on those subjects. In her opinion, to be an acceptable clarification order it needs to be written verbatim. In expressing her opinion concerning the comminuted fracture, Ms. Lameier acknowledged that information provided to Timber Ridge only referred to a right patella fracture with ORIF. Concerning her comments on the comminuted fracture, the reference is out of the operative record or report from Dr. Cannon which refers to "the inferior pole was comminuted . . . ." That report was rendered on February 10, 2003. No indication of precautions concerning the fracture were provided prior to February 25, 2003, the physician's note of February 25, 2003, information not made known to Respondent until April 2003. The misfiled note from Patient R.G.'s chart maintained by Dr. Cannon, dated February 25, 2003, refers to "no bending of RLE." The RLE was understood to mean right lower extremity. John Hisamoto is a physical therapist. He was licensed in Florida in 1981. He has practiced physical therapy in Florida since that time. At present Mr. Hisamoto practices at Proactive Physical Therapy. He has been in that position for 14 years. Mr. Hisamoto has experience treating patients who have suffered knee injuries. He has treated in excess of 5,000 who were seen following knee surgery. Mr. Hisamoto is an instructor at the University of South Florida, where he teaches therapeutic rehabilitation and modalities. Mr. Hisamoto acts as a consultant to a number of professional sports teams: the New York Yankees (baseball), the Tampa Yankees (baseball) and the Tampa Bay Lightning (hockey). More specifically Mr. Hisamoto is familiar with the protocol when treating a fractured patella with ORIF, such as experienced by Patient R.G. Mr. Hisamoto was accepted as an expert in physical therapy to offer opinion testimony. In connection with the physical therapy to be provided a patient with that condition, the patient has undergone a reduction in the fracture to improve the congruency in the joints and to hasten bone healing. There is the effort to improve the capacity to perform early range of motion to lessen stiffness and problems associated with the knee. The physical therapy that the patient who has undergone ORIF would be exposed to, could include use of a knee immobilizer to perform some touchdown weight-bearing activities. Here the Timber Ridge treatment plan called for the use of a knee immobilizer on the right knee. The patient is taught to do transfers, how to begin touchdown positions. One of the other considerations in the therapy is the range of motion exercises that the patient is taught to perform. In Mr. Hisamoto's experience, after ORIF, two or three days beyond the operation is allowed for wound healing. Then the range of motion exercises begin. This is a choice made by the physician. From Mr. Hisamoto's experience, the patient will have been put through a full range of motion by the physician at the time of surgery. The full range of motion is through an arc of 0 to 90 degrees. Given the degree of swelling following an injury, the full range of motion within that arc is not immediately available when performing physical therapy. In the case such as Patient R.G.'s early range of motion would be 0 to 30 degrees or 0 to 45 degrees. Mr. Hisamoto's opinion is that Respondent's plan of treatment calling for range of motion increased by 10 degrees in the first two weeks was a very conservative choice, not an inappropriate response to Patient R.G.'s case. Mr. Hisamoto offered no criticism of Respondent's choice to call for clarification of the initial orders on the Form 3008. He finds the initial orders in the Form 3008 provided by Dr. Cannon evident in the diagnosis and the expectation by the physician that what was to occur was the use of active-assist range of motion, the accepted standard of care for ORIF of the patella. In Mr. Hisamoto's opinion, he would have expected any precautions to be set forth in the Form 3008 if Dr. Cannon had that intention. They were not detailed. From Dr. Cannon's notes concerning the operation on Patient R.G.'s knee, Dr. Cannon had confirmed the range of motion in the patient's knee while in the operating room. Dr. Cannon noted that the fracture was very stable. Under those circumstances, Mr. Hisamoto believes that it would be appropriate for the patient to be exposed to early range of motion exercises by the physical therapist. In that connection, Mr. Hisamoto described the pursuit of active range of motion exercises as depending on the physician who performed the surgery and any complications that may have been experienced in relation to the wound, the incisional site. Active range of motion would occur in the first week, taking into account the need to pay attention to the incisional site. That is what transpired in Respondent's care provided Patient R.G. as to timing. Mr. Hisamoto expressed the opinion that Respondent met the standard of care in providing services to Patient R.G. consistent with what would be expected of a physical therapist in Florida. This included necessary communication by Respondent with physicians involved with Patient R.G.'s treatment. Finally, concerning the clarification order notations made by Respondent on February 17, 2003, Mr. Hisamoto expressed the opinion that there are multiple definitions that may be ascribed to the term "therex". Marty Huegel is a licensed physical therapist in Florida. He received his license in 1979. Since that time he has consistently practiced physical therapy. Currently Mr. Huegel is the Director of Physical Therapy for Quest Physical Therapy in Gainesville, Florida. He also serves as the Director of Rehabilitation for the University of Florida Athletic Association. Mr. Huegel has experience treating patients with knee problems. He has treated approximately 6,000 knee patients following their surgery. Mr. Huegel is familiar with the protocol for treating a fracture of the patella with ORIF, such as the case of Patient R.G. Mr. Huegel has had what he describes as "quite a few" cases involving patients in the age group represented by Patient R.G. Mr. Huegel was received as an expert in the field of physical therapy to offer opinion testimony. Mr. Huegel expressed his opinion concerning the appropriate protocol or standard of care for patients such as Patient R.G. when addressing an ORIF after patella fracture by provision of physical therapy. The primary concern is that stabilization of the fracture be achieved. The surgeon will provide assurance to the physical therapist through the operative note that the patient has been taken through the range of motion following the surgery. This is in anticipation of the need to move the knee to avoid stiffness. Ordinarily the only thing that would prohibit the movement of the knee would be wound issues. Those wound issues would be more prevalent in older patients. If the wound is closed and appears to be healing, then the physical therapist is interested in immediate motion for the patient in the knee. With some patients the movement of the knee can occur the day after surgery. In older patients it may be a few days before that would be an appropriate choice, principally in relation to wound management. In the elderly patients Mr. Huegel has a concern that the range of motion exercises begin early because those patients, if they experience stiffness, can become disabled. Mr. Huegel agrees with Respondent's choice to begin range of motion physical therapy for Patient R.G. on February 17, 2003. Mr. Huegel refers to the immobilizer that was prescribed for Patient R.G. He explains that when physical therapy is being provided to the patient, the immobilizer would be removed in the setting where physical therapy was being provided. Otherwise the patient would utilize the immobilizer. Mr. Huegel does not believe that it would be the appropriate standard of care to wait for radiographic evidence of healing before range of motion exercises are undertaken. That would be important if the surgeon were concerned that there was not the expected fixation in the fracture. Mr. Huegel would expect the physician to mention the problem with fixation if it were there and indicate that the knee not be moved for a period of time or limit the range of motion and its arc. In Patient R.G.'s case, the operative report was to the effect that the fracture was stable as Mr. Huegel understood the circumstances. That information would have been relied upon by Mr. Huegel in his plan of care, consistent with his belief that the patient was a proper candidate for early range of motion exercise. In reviewing the Form 3008 in the section pertaining to physical therapy, Mr. Huegel expressed his understanding of Dr. Cannon's orders. His interpretation was that the doctor expected assistance with straight leg raises. Dr. Cannon wants the patient to use a walker for gait. The form in it depiction of the goals refers to the "active" box being checked and what Mr. Huegel refers to as "assisted active" concerning range of motion. The placement of those terms on the form under the term for "passive range of motion (ROM)," leads him to conclude that the doctor was absolute in his expectation that the knee be moved right away. Nothing in the doctor's orders found on Form 3008 led Mr. Huegel to believe that the physician did not intend that immediate active range of motion begin for Patient R.G. Mr. Huegel considers the matter set forth in the Form 3008 pertaining to physical therapy, to constitute the original order for physical therapy prepared by Dr. Cannon. Mr. Huegel would not have sought clarification from Dr. Cannon of the information set forth in the physical therapy section to Form 3008. He believes the explanation in the Form 3008 is straight forward enough. Mr. Huegel believes that he could have prepared a plan of treatment based upon the information set forth in the physical therapy section to the Form 3008 related to Patient R.G. Mr. Huegel reviewed the plan of treatment prepared by Respondent for Patient R.G. He believes that that plan was appropriate, with the exception that he deemed it to be conservative in its reference to as goal of 10 degrees of range of motion. Mr. Huegel would have extended the range of motion and the arc 30 to 40 degrees. Otherwise Mr. Huegel offered no criticism of Respondent's plan of treatment. This reference is to the expectation of physical therapy within the first two weeks as to the arc or range of motion. Mr. Huegel does not believe that the treatment provided by Respondent for Patient R.G. was too aggressive. Mr. Huegel does not believe that there were any precautions that Respondent should have taken in treating Patient R.G. that were not taken. Respondent properly documented the treatment of Patient R.G. in Mr. Huegel's opinion. In Mr. Huegel's opinion, Respondent practiced physical therapy with the level of care, skill and treatment recognized by a reasonably similar physical therapist as acceptable under similar conditions and circumstances. Mr. Huegel expressed the opinion that Respondent communicated appropriately with physicians regarding the patient's treatment. Mr. Huegel expressed the opinion that Respondent properly interpreted the orders received from Dr. Cannon and followed those orders. Having considered the opinions of the experts in view of the allegations of the Administrative Complaint and facts found, the opinions expressed by Mr. Hisamoto and Mr. Huegel that Respondent practiced with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapy practitioner as being acceptable under similar conditions and circumstances is more persuasive. Their opinion that Respondent interpreted and acted in accordance in the orders from Dr. Cannon, known to Respondent, is accepted. Their opinion that Respondent participated appropriately, as part of the collaborative effort to treat Patient R.G. is accepted. Based upon their opinion, nothing in the Respondent's conduct in relation to the treatment provided Patient R.G. is considered beyond the opportunity provided under his license or outside his competence to perform. Prior Disciplinary History There was no indication of prior discipline imposed against Respondent's physical therapist license.
Recommendation Based upon the findings of facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Counts One and Two to the Administrative Complaint. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 2nd day of August, 2007. COPIES FURNISHED: Lynne A. Quinby-Pennock, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Donna M. Keim, Esquire Bice Kohl Law Firm, P.L. Post Office Box 1860 Alachua, Florida 32616 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
The Issue 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 On February 26, 2008, the Department issued Peng license number MA 52684, 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 Peng. 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 (2012). 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 480.033.1/ 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 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.2/ 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; 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.3/ 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 actual authority to evaluate the transferability of credits and to 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. (Peng's application was not among these; she had taken, and passed, the national examination in December 2007.) 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 Peng. Peng was born in China, immigrated to the United States, and became a citizen of this country. In 2005 and 2006 Peng studied massage therapy at BodyConcepts Wellness Institute ("BodyConcepts") in East Rutherford, New Jersey. At BodyConcepts, Peng successfully completed a 610-hour curriculum in massage therapy. Her certificate was issued on February 10, 2006. In 2007, Peng moved to California. There, Peng attended Royal Irvin College in Monterey Park, where she completed a 250-hour course for which she was issued a Massage Technician II certificate on November 7, 2007. Soon after graduating from Royal Irvin College, as mentioned above, Peng took and passed the National Certification Examination for Therapeutic Massage and Bodywork. Thereafter, Peng relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Peng needed to obtain a Florida license. Because neither Royal Irvin College nor BodyConcepts was a Board- approved massage school, Peng needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. Opting for the former, Peng researched Board-approved schools on the Board's website and identified FCNH as a potential school. On or about January 22, 2008, Peng went to the Pompano campus of FCNH. Upon her arrival at FCNH, Peng signed her name at the reception desk and waited to be seen. After some time, an FCNH employee, identified by Peng as Glenda Johnson, emerged from the offices behind the reception area. Ms. Johnson brought Peng back to her office. Once inside the office, Peng inquired as to whether she could transfer her out-of-state credits to FCNH in order to obtain a Florida license. After reviewing Peng's transcripts from Royal Irvin College and BodyConcepts, Ms. Johnson advised Peng that her credits could be transferred to FCNH. Ms. Johnson informed Peng that she would have to take two Florida-specific classes, namely Prevention of Medical Errors and Florida Laws and Rules. Peng decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. As part of the enrollment process, Peng executed an Enrollment Agreement, a release, a Drug Free School Statement, and a privacy rights disclosure statement. Among other things, the Enrollment Agreement provided that "[t]he school will evaluate collegiate and post secondary training, military experience, or civilian occupations, and students will be given appropriate credit if criteria to measure the value of such training and/or experience are met, as determined by the school." For her part, Ms. Johnson completed several forms in her capacity as registrar. These documents included portions of the Enrollment Agreement, the Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson produced a Department of Health application for a massage therapy license. Peng filled out the parts of the application requesting personal information such as name, Social Security number, date of birth, and phone number, and Ms. Johnson completed the rest. Peng then signed the three- page application, which is dated January 22, 2008. The application which Peng executed states, truthfully, that she obtained a massage therapy certificate in November of 2007 from Royal Irvin College, and that the school is not Board approved. The application states, inaccurately, that Peng completed 610 hours of study at Royal Irvin College, when in fact she earned only 250 hours of credit there. The 610-hour massage therapy program which Peng completed was offered not at Royal Irvin College, but at BodyConcepts, a fact which for reasons unknown was omitted in response to the pertinent question on the application. This was obviously a mistake, however, and not——as the Department now contends——a "false statement" intended to deceive, for Peng's application package included the diplomas and transcripts from both Royal Irvin College and BodyConcepts. These credentials clearly state Peng's educational attainments and the number of hours completed at each institution. The evidence does not establish that Peng knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson took Peng's FCNH enrollment forms and collected $520.00 in cash as the fee for handling the transfer of Peng's credits and her enrollment in the required courses. The total reflects a $250.00 fee for transferring credits to FCNH and a $270.00 fee for tuition. Peng paid the fees to Ms. Johnson in cash because she did not have a checking account or credit card at that time. Ms. Johnson signed a receipt for the $520.00 payment and handed it to Peng. After Peng had completed the paperwork in Ms. Johnson's office, an unidentified female FCNH employee escorted Peng to a classroom on the campus. This woman provided Peng with materials for the Prevention of Medical Errors and Florida Laws and Rules courses she was to take. While at FCNH, Peng apparently received some classroom instruction. She remained in class at FCNH into the night of January 22, 2008, and departed campus after completion of an exam. The next day, Peng returned to FCNH, where she spent all day in a classroom, departing the campus via taxi in the evening. During these two days of study, Peng made handwritten notes on nearly every page of the written materials she was provided. She used a translating device to translate difficult English words into her native Mandarin Chinese. After completion of the courses at FCNH, Peng submitted her application for licensure. By letter dated February 4, 2008, the Department notified Peng that her application was incomplete due to some missing documents. Specifically, the letter requested additional information regarding her legal name change as well as proof of attendance at a Board-approved school. Peng sent the Department a copy of her divorce decree, satisfying the first part of the request. Because FCNH had not provided Peng any certificates of completion, however, she returned to FCNH on February 22, 2008, seeking proof of attendance. There, Peng again met with Ms. Johnson. Ms. Johnson assured Peng that she had completed all of the requirements. Peng asked Ms. Johnson to send the Department proof of such completion, as requested in the letter dated February 4, 2008. Ms. Johnson gave copies of two Certificates of Completion to Peng and promised her that they would be sent to the Department. Ms. Johnson forwarded the documents to the Department, and soon afterward Peng's application was deemed complete. The Department notified Peng by letter dated February 26, 2008, that she had been issued a license to practice as a massage therapist. At the time Peng obtained her license, Florida law required as a condition of licensure that an applicant take a three-hour course on HIV/AIDS. See § 456.034, Fla. Stat. (2007).4/ Peng credibly testified that Ms. Johnson, when evaluating her transcript, had asked whether Peng had taken an HIV/AIDS course. Peng told Ms. Johnson that she had taken the course at both Royal Irvin College and at BodyConcepts. Ms. Johnson informed Peng that so long as she had taken the course within the past year, the credits would transfer to FCNH and she would not have to take the course again.5/ Among the documents that were sent to the Department in connection with Peng's application was the Transfer of Credit Form. This form states that FCNH has evaluated and agreed to accept 485 hours of Peng's previously awarded credits. The form is signed by Ms. Johnson, as evaluator and registrar, who certified "that the transcript credit for the . . . courses [applicant previously attended for credit] is acceptable credit from . . . Royal Irvin College." Ms. Johnson prepared this document on her own without input or review by Peng. The evidence provides no explanation for why Ms. Johnson did not identify BodyConcepts on the credit-transfer form itself. She evidently included the credits earned from that school in her calculation, however, because the majority of Peng's previously earned credits were from BodyConcepts. Ms. Johnson also signed and submitted to the Department an FCNH transcript showing that Peng had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." Ms. Johnson did not show this document to Peng. Even if she had, however, the transcript would not have seemed irregular to Peng because it appears on its face to be an official FCNH credential, listing the courses that FCNH had accepted for transfer credit as well as those that Peng had completed at FCNH on January 22 and 23, 2008. Peng was not shown to have had any prior familiarity with FCNH documents; she had no reason to believe that the FCNH transcript purported to award her any credits other than those she rightfully earned at FCNH or one of the other schools she had attended. Finally, as mentioned above, Ms. Johnson prepared, signed, and submitted to the Department two Certificates of Completion reflecting Peng's completion of: "15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" and "2 Hours Prevention of Medical Errors." Because Peng had taken courses at FCNH on January 22 and 23, 2008, her receipt of these certificates did not signify anything unusual. As far as Pend knew, she had taken the courses Ms. Johnson informed her she needed to take and, accordingly, had earned the certificates presented to her. Collectively, the credit-transfer form, the transcript, and the certificates "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). The several documents comprising Peng's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." The evidence does not support a finding that Peng misrepresented her educational attainments when she met with Ms. Johnson. The evidence does not support a finding that Peng 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 Peng knew or should have known that FCNH, as the transferee school accepting her Royal Irvin College and BodyConcepts courses, would award her academic credit or credentials which she had not legitimately earned. Peng had no reason to suspect the FCNH Enrollment Agreement she signed would not be properly entered into the school's records. Nor did Peng have any reason to suspect that the courses she completed would not be properly credited to her academic record. To sum up Peng's transaction with FCNH, she went to the Board-approved, state-licensed massage school on January 22, 2008, 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 Peng 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. It was also reasonable for Peng to assume that the course materials and courses she took were part of her apparently legitimate enrollment in FCNH. Moreover, 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 evaluate transfer credits on behalf of FCNH. The evidence does not establish that Peng was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Peng gave Ms. Johnson false information. From Peng's perspective, Ms. Johnson had apparent authority, at least, to accept Peng's credits from Royal Irvin College and BodyConcepts, and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Peng has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although Ms. Wade testified at hearing that Ms. Johnson should not have awarded Peng an FCNH Diploma based on Peng's Royal Irvin College and BodyConcepts credits, FCNH has not initiated a legal proceeding to revoke or withdraw Peng's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Peng 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 Peng not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 6th day of June, 2013, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2013.
