Findings Of Fact On January 27, 1989, Gloria Suarez Mujica, Petitioner, applied for examination to be licensed as an occupational therapist by the Board of Medical Examiners, Occupational Therapy Council, Respondent. By Order dated August 16, 1989, the Occupational Therapy Council denied her request. The Board of Medical Examiners has delegated the authority to certify applicants for examination to the Occupational Therapy Council. The rulemaking authority for the policy and procedures concerning occupational therapy rests with the Board of Medical Examiners after review and recommendation by the Council. On March 23, 1980, Ms. Mujica received an Associate in Science degree from Fiorello H. LaGuardia Community College of the City University of New York, and on June 20, 1980, the University of the State of New York certified Ms. Mujica as an occupational therapy assistant. while at LaGuardia, Ms. Mujica successfully completed eight months of internship work, three months in pediatrics, three months in fixed disc and two months in psychology. During the internships, Ms. Mujica worked with actual patients and was supervised and evaluated. The internships constitute successful completion of eight months of supervised fieldwork experience. On July 19, 1980 the American Occupational Therapy Association enrolled Ms. Mujica as a certified occupational therapy assistant. Ms. Mujica was licensed by the State of New York as an occupational therapy assistant on June 20, 1980, and, subsequently, has maintained that license in good standing. In 1980, Ms. Mujica moved to Florida. On November 3, 1980, she was employed as an occupational therapy assistant by South Miami Hospital. Since her employment in 1980, Ms. Mujica has worked consistently as an occupational therapy assistant, except for two maternity leaves of three months each. On June 20, 1982, Ms. Mujica was licensed by the State of Florida Board of Medical Examiners as an occupational therapy assistant and currently maintains that license in good standing. An occupational therapist is trained and licensed to perform independently certain functions which an occupational therapist assistant is not so trained or licensed to execute. Some of those functions include examination and assessment of patients. After assessing the patient, the occupational therapist develops a plan or prescription of treatment for the patient, and the occupational therapy assistant implements the plan. However, an occupational therapist assistant is trained about the plans and, under the supervision of an occupational therapist, does implement them, observing the patient and making suggestions during the course of treatment. Currently, the trend is toward more independent activity by an occupational therapist assistant. In other words, rather than providing direct supervision, an occupational therapist operates as a consultant, leaving the occupational therapy assistant to implement the treatment plan. In fact, Ms. Mujica has worked the majority of her career under the later scheme. During the winter of 1989, the staff of the Council reviewed Ms. Mujica's application for licensure as an occupational therapist and made the determination that Ms. Mujica was qualified to sit for the examination for licensure as an occupational therapist. Under the authority delegated to the staff by the Council, the Executive Director of the Council issued a temporary license to practice as an occupational therapist under the supervision of a licensed occupational therapist on March 23, 1989. Ms. Mujica worked as an occupational therapist until she was notified that the Council had rejected her request for certification to sit for the examination. According to the Executive Director, the Council met on June 14, 1989 and voted to deny her request for licensure. By letter dated June 22, 1989, the Executive Director informed the American Occupational Therapy Certification Board, which administers the examination, of the Council's decision. By letter dated July 11, 1989, the American Occupational Therapy Certification Board, Inc. informed Ms. Mujica that the Council had rejected her request to sit for the examination. This letter was received by Ms. Mujica too late. In good faith, she took the examination on a Saturday in July, 1989. The following Tuesday she received the letter. She was unsuccessful on the examination. On August 16, 1989, the Executive Director informed Ms. Mujica of the Council's decision of June 14, 1989 and revoked her temporary license. The Order issued on the same date states, in pertinent part, The Occupational Therapy Council reviewed and considered your application for licensure on June 14, 1989, in Tallahassee, Florida, and has determined that said application be DENIED, stating as grounds therefore; The six months supervised fieldwork experience that you completed was in an occupational therapy assistant program, not in a program approved and authorized to give occupational therapist training. See 468.209(1)(c), Florida Statutes. The application, however, was filed-under section 468.209(2), Florida Statutes. The dispute here does not center on Ms. Mujica's failure to pass the examination, but, instead, on the Council's decision that Ms. Mujica does not possess the requisite supervised fieldwork experience. Under existent law, Ms. Mujica's supervised fieldwork experience does meet the requirements of supervised fieldwork experience for the purposes of the law under which her application was filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Medical Examiners issue a Final Order stating that Petitioner has met the supervised fieldwork requirement pursuant to subsection 468.209(2), Florida Statutes DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March, 1990. JANE C. HAYMAN 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 19th day of March, 1990.
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."
Findings Of Fact At all times material to this proceeding, the Petitioner has been in the custody of the Respondent pursuant to an Order entered by the Circuit Court in Pinellas County, Florida, pursuant to Chapter 917, Florida Statutes. Petitioner is presently housed at the Florida State Hospital in Chattahoochee, Florida, where he is receiving treatment in the hospital program for mentally disordered sex offenders. The Respondent has informally determined that it has exhausted all appropriate treatment of the Petitioner in its program. The program for mentally disordered sex offenders at Florida State Hospital and at other institutions requires a high degree of motivation on the part of the patient. The primary treatment program is group therapy. The Petitioner has participated in group therapy sessions and adjunctive therapy programs, such as Alcoholics Anonymous, school, and leather "occupational therapy. His condition has been diagnosed as borderline mental retardation, possible organic brain syndrome as epilepsy, personality disorder sexual deviation, and a seizure disorder. The patient's participation in the adjunctive therapy programs has been adequate. His participation in group therapy, however, which is of primary importance, has not been adequate. He has attended sessions regularly, but has participated very little. He has not talked about his own or other people's difficulties. At times during group sessions he laughed inappropriately. In order to improve his communications skills, the petitioner was referred to a communications skills assertiveness training group in January, 1980. He attended the program and was cooperative, but it did not improve his participation in the primary group therapy program. The Petitioner has not been an overt management problem at the hospital, but he has been resentful, argumentative, and uncooperative. He appears comfortable with his life-style at the hospital, and with his propensity to commit sex offenses. The Petitioner was presented to a staff disposition conference which consisted of members of the treatment team in the program for mentally disordered sex offenders. The consensus of the staff was that the Petitioner had not shown distress about his problems and did not appear motivated to change. The Petitioner's case was presented to representatives of other programs for mentally disordered sex offenders in Florida, but noise of the participants felt that the Petitioner would benefit from their programs. It appears that the Respondent has exhausted all of the treatment possibilities that could be of benefit to the Petitioner. The Petitioner has complained of numerous physical ailments, for which he asserts he has received inadequate attention at the hospital. He contends that had he received better treatment for his medical difficulties, he would have participated more freely in the primary treatment program. The Petitioner also contends that if he were placed in a program near to where his family lives, he would be more motivated to treatment. The Petitioner's effort to blame his lack of motivation on the staff at the hospital rather than on himself indicates further that it is not likely that he would receive benefit from a program that requires a high degree of motivation.
Findings Of Fact Marlene Solomon is the Respondent in this case and at all times pertinent to this hearing was licensed by the State of Florida as a registered physical therapist under License No. PT0001665. As of the date the hearing commenced, her license issued on September 2, 1975, was in good standing, and there was no derogatory information in her file. Her licence will be current through December 31, 1984. Marlene B. Holland was employed by Respondent as receptionist-secretary in her Orlando Physical Therapy & Fitness Center (OPTFC) from May 15 to December 21, 1978. She was not a physical therapist. From June until the end of October 1978, she and Ms. Solomon were the only people in the facility, which was open for business from 8:00 a.m. to 5:00 p.m. Monday through Friday. Respondent was not always present when therapy prescribed by a physician was given to a patient. When that was the case, Ms. Holland administered the treatment at the direction of Respondent. One of these patients to whom Ms. Holland administered treatment was a Dr. Douglas, who was receiving whirlpool treatments for his broken arm. This treatment consisted of heating up tile whirlpool bath, helping him into it, and standing by and talking with him while he was in the pool. At no time did she manipulate his arm or request that he flex it through the range of motion, nor did she apply ultrasound without direction. She had no freedom of choice to decide what treatment was to be given or when. Anything she did was done either by written or oral direction of Respondent whether Respondent was physically present or not. Another physical therapist, Mr. Rolf Kuhns, contends this constitutes the practice of physical therapy and, if done by a non licensed individual, must be done under the direct supervision of a physical therapist. Mr. Kuhns initially adamantly claimed there were no exceptions to this position but thereafter substantially relaxed his position. In any case, it is quite apparent, though he denies it, that as a direct competitor of Respondent he would benefit by the discipline of her license and the attendant loss of business she would suffer and, in fact, gratuitously provided information about her difficulties to physicians and others who had been or were clients of Respondent at the time. Marilyn Roofner, a registered physical therapist, works for Respondent from November 1 to December 21, 1978, at OPTFC with Ms. Holland. One of Respondent's patients during November 1978 was a Ms. Marilyn Caswell. During the entire period of time Ms. Roofner worked for Respondent, she saw Ms. Caswell come into the facility on approximately three occasions. On none of these occasions, however, did she give Ms. Caswell any physical therapy treatment. She did try, however, on one occasion to treat Ms. Caswell. In This particular instance, Ms. Caswell had an appointment for a treatment. Ms. Roofner saw her sitting in Respondent's office talking to her and asked if she were ready for her treatment. Ms. Caswell stated she was not. Therefore, Ms. Roofner made up a hot pack and took it to Respondent's office. When Respondent saw her, she frowned and waved her away. On the other visits Ms. Roofner is aware of, she did not see Ms. Caswell receive any treatment but instead observed her just sit there and talk with Respondent. During the period of her employment, she became concerned about the business practices of Respondent and how they might impact on her own professional standing. She observed appointments in the Respondent's appointment book marked "cancelled" or "no-show," which entries were later erased, and the insurance company would be billed for treatment that was not given. This occurred on November 3, November 6, November 13 and November 20, 1978. She heard the administrative employee, Ms. Holland, discuss this practice with Respondent, who advised her to do what she was told--it was none of her business. She heard Ms. Holland chastised by Respondent for calling Ms. Caswell and asking her to come in for treatments. When she realized that the scope of this practice was larger than she thought, she realized she would have to take steps to protect her own license. As a result, she resigned from employment with Respondent. Before doing so, she made copies of the appointment book and ledger cards to support what she had found and thereafter wrote a letter to the president of the Florida chapter of the American Physical Therapy Association. As a result of this letter, after investigation by that Association and findings that Respondent had been engaged in unethical billing practices, Respondent was conditionally suspended from the Association for one year. The Respondent met the condition imposed, and the suspension was forestalled. Respondent was paid $400.00 by Ms. Caswell's insurance company on October 4, 1978, for treatment rendered. She received another $240.00 on October 25, 1978, for additional treatment, and $700.00 on December 22, 1978. Each treatment was billed at $20.00, and billing records show that on several occasions Ms. Caswell allegedly received two treatments in one day. On December 27, 1978, Respondent returned the check for $700.00, indicating there had been a billing error, and thereafter submitted a bill for $320.00 for the period October 22, 1978, Through December 15, 1978. This latter bill included billings on November 3, 6, 13 and 20, 1978. Comparison of these dates with the Respondent's appointment book for these same dates shows that the appointments on November 3, 13 and 20, 1978, were marked "no-show," meaning the patient, Ms. Caswell, did not show up; and that for November 6, 1978, was cancelled. It is clear, therefore, that even after the correction Respondent billed the insurance company for treatment not rendered. By affidavit submitted July 29, 1983, Respondent denies both improper billing, as alleged in Count One of the Administrative Complaint, and allowing an unlicensed individual to practice physical therapy unsupervised, as alleged in Count Two. There was extensive evidence on both sides which indicates an unhealthy relationship existing between Respondent and her employees. As a result, the credibility of Ms. Holland and, to a lesser degree, Ms. Roofner, is in question. Discounting this to a substantial degree, there still remains the documentary evidence in the form of four pages from Respondent's appointment book showing missed appointments on the dates set out supra and the billing statements reflecting physical therapy treatments on those days for each which $20.00 was charged. On none of the appointments book pages is there a showing of a second or alternate appointment for that day. The fact that the bill on these dates postdates the alleged audit of the account and the return of the prior check to the insurance company makes it unlikely there was any mistake on the part of the Respondent, here. Further, the testimony of Dr. Johnson that a part of treatment can include counselling to a distraught patient is not persuasive here. That may well be proper medical treatment for which a physician, counselor, psychologist or psychiatrist can bill, but by no stretch of the imagination can counselling not related to physical therapy be considered a part of billable physical therapy. The very use of the term "physical" in the description of the procedure would exclude such a conclusion. It is clear, therefore, that improper bills were submitted for at least November 3, 6, 13, and 20, 1978.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent's license as a physical therapist in the State of Florida be suspended for six months. RECOMMENDED this 14th day of September, 1983, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael Sigman, Esquire 125 East Jefferson Street Orlando, Florida 32801 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. Case No. 82-659 MARLENE SOLOMON, R.P.T., License No. PT 1665 Respondent. /
