The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
The Issue The issues in this case are whether Respondent: (a) was convicted of a crime which directly relates to the practice of physical therapy; (b) failed to timely report a criminal conviction to the Board of Physical Therapy Practice; and (c) was terminated from the Medicaid program, as Petitioner has alleged; and, if one or more of these allegations are established, whether the Board should impose discipline on Respondent's physical therapy license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Marly Delis Cueto ("Cueto"), P.T., was licensed as a physical therapist in the state of Florida. Petitioner Department of Health ("Department") has regulatory jurisdiction over licensed physical therapists such as Cueto. In particular, the Department is authorized to file and prosecute an administrative complaint against a physical therapist, as it has done in this instance, when a panel of the Board of Physical Therapy Practice ("Board") has found that probable cause exists to suspect that the therapist has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged Cueto with three such offenses, namely, being convicted of a crime which directly relates to the practice of physical therapy; failing to report this conviction to the Board; and being terminated from the state Medicaid program. It is undisputed that, on November 5, 2008, in a case styled State of Florida v. Cueto, No. 08-16209CF10A, the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, accepted Cueto's plea of nolo contendere to the single count of grand theft (a third-degree felony) with which she had been charged; withheld adjudication of guilt; and sentenced her to a term of two years' probation with special conditions. The conditions were that Cueto pay the Agency for Health Care Administration ("AHCA") $28,000 as restitution to the Medicaid program, from which she had stolen funds; and that she relinquish her Medicare and Medicaid provider numbers while on probation. Cueto did not explain the reasons for, and circumstances surrounding, her plea of nolo contendere. There is, at bottom, no persuasive evidence in the record upon which to base any findings of an exculpatory nature concerning the underlying criminal charge for which Cueto was sentenced. Where, as here, there is insufficient proof of objectively reasonable grounds for entering a plea of no contest, which are consistent with innocence, the undersigned presumes that the licensee entered the plea because of a guilty conscience or in surrender to overwhelming odds of conviction. Thus, it is determined that Cueto's plea of nolo contendere constituted a conviction. The conduct which gave rise to Cueto's conviction is relevant only for the limited purpose of determining whether the crime directly relates to the practice of physical therapy. In this regard, the undersigned finds that during the period from January 1, 2007 to April 22, 2008, Cueto——who, as a licensed physical therapist, was an enrolled Medicaid provider——knowingly and intentionally submitted multiple claims to the Florida Medicaid program for physical therapy services that she had not actually rendered, on which false claims she was paid at least $28,000 to which she was not entitled. It is determined that Cueto was convicted of a crime which directly relates to the practice of physical therapy. Cueto did not report to the Board that fact that she had pleaded nolo contendere to a crime, as she was legally required to do within 30 days after entering the plea. On September 30, 2009, AHCA entered a Final Order terminating Cueto from participation as a provider in the Florida Medicaid program. AHCA imposed this sanction against Cueto pursuant to Florida Administrative Code Rule 59G-9.070(8) (2008)——as it was authorized to do under section 409.913(13), Florida Statutes (2009)——because she had been convicted of grand theft on November 5, 2008. As of the final hearing in this case, Cueto had not been reenrolled as a Medicaid provider.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order finding Marly Delis Cueto guilty of the offense described in section 486.125(1)(c), Florida Statutes, i.e., being convicted of a crime that directly relates to the practice of physical therapy; guilty of the offense defined in section 456.072(1)(x), namely failing to timely report a criminal conviction to the Board; and guilty of the offense defined in section 486.125(1)(k), in consequence of having been terminated from the Medicaid program, which latter constitutes a disciplinable offense under section 456.072(1)(kk). It is further RECOMMENDED that the Board impose an administrative fine of $14,000 and suspend Cueto's physical therapy license for two years, to be followed by two years of probation on such reasonable terms and conditions as the Board establishes, which may include the requirement that Cueto pay in full the $28,000 she has been ordered to remit to AHCA as restitution of the stolen funds. DONE AND ENTERED this 19th day of July, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2011.
The Issue Whether Respondent violated Subsection 486.125(1)(e), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of medicine pursuant to Chapters 20, 456, and 458, Florida Statutes. Mr. Westrope is, and was at all times material to this proceeding, a licensed physical therapy assistant in the State of Florida, having been issued license number PTA1170. Beginning in or about September 2004, D.D. was being provided physical therapy services through Girling Health Care, Incorporated (Girling). Girling contracted with Rehab Action, Incorporated (Rehab) to provide home health physical therapy to patients. Rehab contracted with Mr. Westrope to perform the physical therapy in the patients' homes. In or about September 2004, Mr. Westrope was assigned to provide physical therapy to D.D., who had undergone a complete knee replacement. D.D. had been assessed by Mr. Westrope’s supervising physical therapist, Gaspard de Laaf, on September 29, 2004, prior to Mr. Westrope beginning his physical therapy services on September 30, 2004. Mr. Westrope was required by Rehab to complete a visitation slip at the end of each physical therapy session. Mr. de Laaf had provided instruction to Mr. Westrope on how to complete the form. Mr. Westrope would send the completed form to Mr. de Laaf, who reviewed the form and sent it to Girling for reimbursement. When Mr. Westrope provided physical therapy to D.D., she would lie on her bed and perform therapy exercises, and then move into the kitchen where Mr. Westrope would measure the bend in her knee. When each session was over, Mr. Westrope would complete a visit slip for the treatment, and D.D. signed them to verify that she received the services. D.D. is visually impaired and can only see light. In order to sign the forms, D.D. requested Mr. Westrope to place the forms near the end of the kitchen table so that she could align her arm with the table edge so that her signature would be in a straight line. D.D. always signed her signature as "D.A.D." D.D. prided herself on her independence and did not allow anyone else to sign the visit slips for her. Mr. Westrope provided physical therapy services to D.D. on September 30 and October 1, 5, 6, 8, 12, 15, and 22, 2004. Mr. de Laaf evaluated D.D. and provided physical therapy services to her on October 25, 2004. Mr. Westrope provided services to D.D. on October 28, 2004. Mr. Westrope completed and submitted visit slip documentation for physical therapy treatment of D.D., which he claimed to have provided on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. However, Mr. Westrope did not provide services to D.D. on those dates. On or about November 3, 2004, D.D. contacted Girling complaining that she had not received physical therapy from Mr. Westrope in a while. On or about November 4, 2004, Mr. de Laaf was notified by Girling regarding the complaint it received from D.D. Mr. de Laaf then prohibited Mr. Westrope from seeing any Girling patients after Girling indicated that it did not want Mr. Westrope performing any of its services. Mr. de Laaf then resumed the treatment of D.D. On or about November 5, 2004, Tammy Hain, R.N., and Rob Hudson, O.T., who are supervisors employed by Girling, visited D.D. to verify that she had not been receiving physical therapy from Mr. Westrope on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. D.D. verified that she had not received services on those dates. D.D.'s daughter has been assisting D.D. with her financial transactions for 15 years and is familiar with D.D.'s signature. At the final hearing, D.D.'s daughter reviewed for the first time the visit slips submitted by Mr. Westrope for services to D.D. After reviewing the visit slips, D.D.'s daughter concluded that the signatures on the visit slips for October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004, were not written by D.D. D.D.'s daughter verified that D.D. always uses her middle initial “A” when signing her signature. The signatures on the disputed dates do not contain D.D.'s middle initial and are different in appearance from the signatures on the visit slips on which Mr. Westrope documented services that he did provide to D.D. On five occasions during the time that Mr. Westrope was providing services to D.D., Robert Hudson also provided occupational therapy services to D.D. on five occasions. At the end of the therapy sessions with Mr. Hudson, D.D. signed the visit slips “D.A.D.” The parties stipulated that if Mr. Westrope did not provide the services to D.D. on the dates he indicated on the visit slips, then Mr. Westrope violated the rules of the Department and Subsection 486.125(1)(e), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Michael G. Westrope, P.T.A., violated Subsection 486.125(1)(e), Florida Statutes, and imposing a penalty of a $2,000 fine and a six-month suspension followed by one year of probation with the terms to be set by the Department at the conclusion of the suspension period and requiring Respondent to complete five hours of Continuing Education in physical therapy medical records documentation. DONE AND ENTERED this 7th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of April, 2006.
