The Issue The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004(27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.
Findings Of Fact Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained at the beginning of treatment and are reviewed daily with the clients. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS-sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger. Staffperson Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part: As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines: * * * August 27, 1993, 5:20 p.m., (report written August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with 10E-16.004(27)(a), F.A.C., requirements. (Petitioner's exhibit no. 6) HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision- making skills, would walk out. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part: In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parenti in declining to release a minor from treatment where such release is against the will of a parent or legal guardian and no court order has been issued to direct otherwise. The State of Florida , Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement. (Petitioner's exhibit no. 7) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56 and 120.57, Florida Statutes. The two cases consolidated above present two separate issues which must be addressed in separate orders, as one issue (the validity of Rule 10E- 16.004(27), Florida Administrative Code) is determined by the Hearing Officer, and the other issue (whether SAFE violated the rule) is determined by the agency upon a recommended order by the Hearing Officer. Notwithstanding the parties' earnest desire to obtain a resolution of the issue of when a program like SAFE can use physical restraint to prevent withdrawal, the Hearing Officer has no authority to issue a "declaratory statement." That function, addressed in Section 120.565, Florida Statutes, is reserved to the agency. Rule 10E-16.004(6)(a), [Florida Administrative Code], provides that "[t]he department shall impose a penalty of no more than $100 per day against a licensed program that commits a [significant violation pertaining to the health and safety of the clients.] ..." [emphasis added] Rule 10E-16.004(27)(a), Florida Administrative Code, provides: (27) Aggression Control Techniques. Programs which use verbal, psychological and physical intervention methods for managing client behavior shall be required to implement the procedures established under HRS Regulation Number 205-1 regarding the use of Aggression Control Techniques (ACT), or other techniques, as approved by the department. (a) Justification and Documentation of Use. In the event that physical intervention is used to restrict a client's movement, clinical justification shall be documented in the client record, and a complete, detailed report of the incident shall be maintained as part of the program's administrative records and reported to the department's district administrator. Physical intervention techniques shall be employed by trained adult staff to prevent a client from injuring himself or others, or to prevent serious disruption of the therapeutic environment. HRS contends that SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code, when the program restrained its minor client, S. B., from attempting to bolt without going through the "chain of command" described in SAFE's voluntary withdrawal procedures. HRS has the burden of proving the alleged violation. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) HRS does not claim that the techniques used on S. B. were by other than trained adult staff or that the required reports were not made to the agency and properly maintained by the program. Rather, HRS claims that a program such as SAFE cannot detain a child against his or her will. The rule cited by HRS simply does not include that prohibition. It states in the affirmative two circumstances in which a program shall use appropriate physical intervention: to prevent injury to the client or others, or to prevent serious disruption of the therapeutic environment. SAVE contends that permitting a child to leave at will, without following established withdrawal procedures would cause a serious disruption of the therapeutic environment. SAFE presented some competent credible testimony by its director to support its contention. HRS presented no evidence on that subject. HRS, moreover, has failed to justify its policy determination and interpretation of the rule in this case. It argues, for example, that parents do have a right to admit their children to a secure facility and to obtain a court order or alternative involuntary assessment. SAFE is not classified as a secure facility. The procedures and statutes referenced in HRS' proposed recommended order, however, were not in effect at the time of the incident at issue. Chapter 397, Florida Statutes, was substantially revised in 1993 and the revisions became effective October 1, 1993, after the incident at issue. See, Chapter 93-39, Section 51, Laws of Florida. The arguments made by HRS were specifically rejected by the court in Department of Health and Rehabilitative Services v. Straight, Inc., 497 So.2d 692 (Fla. 1st DCA 1986), a case decided prior to the 1993 amendments and therefore more relevant to the instant case. The determination that HRS has failed to meet its burden of proof in this case does not resolve for the parties their more global issue of whether a non-secure program such as SAFE can detain a child involuntarily placed by his or her parents or guardian. That issue is not resolved in Straight, supra, decided under a different statute; or by HRS' rule Chapter 10E-16.004, Florida Administrative Code, in its current form. Nor, contrary to SAFE's assertions, is the issue resolved in the stipulated judgement entered in the Palm Beach case referenced in paragraph 14, above, affecting a program which is not described in any competent evidence in this record. The conclusion in this case is properly limited to the facts and circumstances presented, and to consideration of a rule and statute in existence at the time of the incident at issue. The conclusion is merely that HRS failed to meet its burden of proving that by detaining S. B. on August 27, 1993, SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the January 12, 1994 amended complaint. DONE and ENTERED this 2nd day of April, 1996, in Tallahassee, Florida. MARY CLARK, 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 April, 1996. COPIES FURNISHED: Paul D. Newnum, Esquire TURNBULL, ABNER, DANIELS and ROOKS 147 West Lyman Avenue, Suite 100 Winter Park, Florida 32790-0100 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Sandy Coulter, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
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. /
The Issue The issue in this case is whether Respondent, because of intoxication, chemical dependency, or any other mental or physical condition, is unable to practice occupational therapy with reasonable skill and safety to patients.
Findings Of Fact Respondent Milton Kaufman ("Kaufman") is a Florida- licensed occupational therapist and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Department of Health ("Department"). At the time of the final hearing, Kaufman was not actively practicing occupational therapy, because his license had been suspended pursuant to an emergency order. On May 27, 2004, Kaufman was seen for the first time by a psychiatrist named Neville Marks. The appointment had been made at the instance of the Professionals Resource Network ("PRN"), a program that serves health care practitioners who have problems arising from substance abuse or dependency. (PRN had taken an interest in Kaufman after two persons in Kaufman's office had made complaints to PRN regarding Kaufman's behavior. Neither complainant testified at the final hearing, however, and no firsthand evidence was presented concerning the events about which they had complained.1 For that mater, no firsthand evidence of any of Kaufman's work-related conduct was adduced.2) The evaluation lasted only about 15 minutes, Kaufman having arrived late for the appointment. During the initial evaluation, Kaufman told Dr. Marks that he (Kaufman) did not have problems with chemical dependency. While there is no evidence explaining what Kaufman understood the term "chemical dependency" to mean, the undersigned accepts his denial as credible insofar as, more likely than not,3 Kaufman in fact was not relying upon a chemical to function in daily life or abusing a chemical to the point that his ability to function in daily life was substantially impaired or affected.4 Dr. Marks nevertheless felt that a full evaluation was needed, and he obtained a urine sample from Kaufman for testing. Dr. Marks next saw Kaufman on June 1, 2004. During this second visit, Dr. Marks told Kaufman that his urine had tested positive for the presence of Valium, hydrocodone (a painkiller), and marijuana. (The particular test Dr. Marks had used did not detect the amounts of these substances.) Kaufman then admitted to Dr. Marks (and he later testified at hearing) that he had used these drugs, an undisputed fact which the undersigned hereby finds. Although Dr. Marks and the Department make much of this urine test, the result is not as probative of the disputed material facts as it might seem, when placed in the proper factual context. As Kaufman explained to Dr. Marks on June 1, 2004, Kaufman had been taking pain medications to alleviate the discomfort caused by kidney stones, a condition from which he had suffered for about a year before seeing Dr. Marks. The Department presented no evidence contradicting this credible explanation or demonstrating that Kaufman had not taken the hydrocodone pursuant to a licit prescription.5 Given the state of the evidential record, the undersigned is not clearly convinced that Kaufman's use of hydrocodone was for any purpose other than to palliate the effects of a painful physical condition, or was undertaken except pursuant to a legal prescription. Concerning the presence of Valium in Kaufman's urine and his admitted use of that drug, the record simply lacks sufficient evidence on which to base any pertinent findings. There is, for starters, no clear and convincing evidence as to what Valium is. While the undersigned knows that Valium is a commonly prescribed sedative often used to treat anxiety and insomnia, among other things, his knowledge is not based on evidence in this record and thus findings to this effect cannot properly be made. Even if such findings were authorized, as being, for example, matters of common knowledge, the assumed facts would be consistent with Kaufman's statement to Dr. Marks that he had been taking two pills to fall asleep at night. In short, there is no clear and convincing evidence that Kaufman's use of Valium was illicit or improper. Regarding the use of cannabis, Kaufman testified at hearing that he smoked pot from time to time——though not regularly and never at or before work——and had done so about one month before he first saw Dr. Marks. This credible, uncontradicted testimony is consistent with what Kaufman told Dr. Marks when confronted by the latter with the urine test result, and the undersigned accepts it as true. A paucity of evidence precludes additional findings regarding Kaufman's use of marijuana. No proof was adduced, for example, as to what marijuana is or how it affects the user. While these matters might be commonly known, the undersigned cannot properly make fact findings about them without evidence of record. Of greater importance is that no evidence exists as to what effects, if any, the occasional, off-duty use of marijuana would typically have on the professional performance of an occupational therapist; on this the undersigned could only speculate.6 Owing to the lack of evidence, therefore, the undersigned is not clearly convinced that Kaufman's sporadic use of marijuana ever rendered him unable to practice occupational therapy safely and skillfully, or might someday do so. Kaufman next saw Dr. Marks on June 3, 2004. During this visit, Kaufman made several admissions, according to Dr. Marks. Allegedly, Kaufman told Dr. Marks that he (Kaufman) had an "addiction problem" and feared discontinuing the medication, from which he had once attempted to withdraw, spending 15 hours in bed feeling bad. Even accepting Kaufman's out-of-court declarations as truthful statements, the admissions in question are not especially probative. First, there is no evidence establishing that Kaufman is competent to diagnose an "addiction problem" from a clinical or medical perspective; the undersigned must assume, therefore, that if Kaufman used the term "addiction problem," he used it in a nontechnical sense. As a nontechnical term, "addiction problem" is ambiguous——and Kaufman was not asked at hearing to explain what he had meant by it. Indeed, it is not even clear what Kaufman supposedly admitted being addicted to. In any event, the undersigned does not accept Kaufman's putative out-of-court statement as clear and convincing proof that Kaufman had a clinically diagnosable mental or physical condition relating to addiction or dependency. Rather, as found above, Kaufman was likely able to perform life's ordinary activities without using a chemical to make it through the day. Kaufman's alleged statements about suffering from withdrawal are simply too ambiguous to constitute clear and convincing proof of relevant facts. It is not clear, for example, what "medication" Kaufman was supposedly withdrawing from. Assuming that the medication in question was the painkiller or the sedative he had been prescribed, the fact that Kaufman had wanted to stop taking the medication (perhaps because of addiction fears) but was afraid to do so (perhaps because unpleasant symptoms would reappear) and was having a hard time quitting would seem neither unique nor alarming, at least on this record, which is devoid of any evidence demonstrating that the use of a prescription pain medication and/or sedative in accordance with a doctor's orders necessarily would render a licensee unable to practice occupational therapy safely and skillfully. Indeed, there is no evidence as to what effects, if any, the use of hydrocodone and/or Valium——even longtime or addictive use——would have on the professional performance of an occupational therapist. Dr. Marks also reported that on June 3, 2004, Kaufman had told him that his (Kaufman's) wife had said that Kaufman was "acting weirdly." This alleged statement of Kaufman's wife—— which Dr. Marks relied upon in diagnosing Kaufman——is hearsay for which no exception was shown.7 Because there is no other competent proof that Kaufman had acted "weirdly," the wife's purported hearsay statement cannot be accepted as evidence for the truth of that assertion. It is undisputed that on June 3, 2004, Kaufman filled out and signed PRN's "Chemical Dependency Advocacy Contract" (the "PRN Contract") in which, among other things, he pledged to abstain from using any mood altering substances without an appropriate prescription, agreed to receive ongoing therapy from Dr. Marks, and consented to submit to random drug tests. This PRN Contract was never signed by PRN and thus appears not to have taken effect. Indeed, Kaufman testified at hearing that he had revoked or rescinded the agreement before it became binding, although there is no evidence that he did so in writing. In any event, the fact that Kaufman executed the PRN Contract constitutes an admission that Kaufman had some sort of problem. The admission is an ambiguous one, however, because by the time Kaufman signed the PRN Contract, he clearly did have a big problem——with the Department, which could (and later did) take away his professional license if he failed to cooperate with PRN. On the instant record, it is as likely that Kaufman signed the PRN Contract as an expedient means of forestalling threatened disciplinary action as that he signed the document acknowledging that he needed help with a chemical dependency problem. Consequently, the PRN Contract does not clearly convince the undersigned that Kaufman was, in fact, dependent on a chemical. After this, Kaufman saw Dr. Marks twice more, on June 11 and June 22, 2004. During these visits, Kaufman denied having chemical dependency problems. Dr. Marks did not accept these statements as truthful, but rather concluded that Kaufman was in "denial." Dr. Marks diagnosed Kaufman as being dependent on pain medications and marijuana. Dr. Marks conceded at hearing, however, that Kaufman did not meet the diagnostic criteria specified in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) for cannabis dependence. He did not identify the diagnostic criteria used in their place. Kaufman then stopped seeing Dr. Marks and was referred to a psychiatrist named Joseph Altieri. Dr. Altieri examined Kaufman and concluded, as he testified at hearing, that Kaufman did not meet the diagnostic criteria for chemical dependency. Instead, according to Dr. Altieri, Kaufman suffered from an adjustment disorder with mixed emotional features (i.e. anxiety and depression),8 and presented with a history of sporadic marijuana usage, and a history of prescription narcotics use for various medical conditions. Resolving a conflict in the evidence, the undersigned finds that Dr. Altieri's diagnosis is more credible than Dr. Marks's. Dr. Marks's opinions about Kaufman's condition suffer in comparison to Dr. Altieri's largely (though not exclusively) because Dr. Marks relied upon many facts for which there is no competent evidence in the record, e.g. the complaints about Kaufman that were purportedly made to PRN, and Kaufman's wife's alleged out-of-court assertion that Kaufman had been acting "weirdly."9 In contrast, Dr. Altieri's diagnosis is more consistent, the undersigned finds, with the persuasive evidence in the record.10 Accordingly, it is found that the evidence fails clearly and convincingly to prove that Kaufman has or had a diagnosable condition known as chemical dependency. Ultimate Factual Determinations There is no persuasive evidence that Kaufman, as a matter of historical fact, ever failed to practice occupational therapy with reasonable skill and safety to patients. Consequently, the undersigned is not (and could not be) clearly convinced that, at any time he was on duty, Kaufman was actually unable to practice occupational therapy with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.11 Kaufman suffered, and might continue to suffer, from a variety of illnesses and/or mental or physical conditions. These include kidney stones, insomnia, anxiety, and depression. There is no clear and convincing evidence in the record, however, that any of these conditions has rendered, or is reasonably likely to render, Kaufman unable to practice occupational therapy with reasonable skill and safety to patients. In this regard, the evidence is lacking both as to (a) the effects of these conditions, if any, on Kaufman's ability to practice occupational therapy and (b) the level of performance that constitutes "reasonable skill and safety to patients," which makes it impossible to determine whether any of Kaufman's "disabilities" might ever make him unable to meet the requisite standard of conduct.12 The evidence is undisputed that Kaufman has used legal prescription medications as well as marijuana. There is no clear and convincing evidence in the record, however, that Kaufman's use of these substances has rendered, or is reasonably likely to render, Kaufman unable to practice occupational therapy with reasonable skill and safety to patients. In this regard, the evidence is lacking as to: (a) the likelihood that Kaufman eventually would be under the influence of any such substance while on duty13; (b) the effects of these substances, if any, on Kaufman's ability to practice occupational therapy; and (c) the level of performance that constitutes "reasonable skill and safety to patients," making it impossible to determine whether the use of any of these substances might ever make Kaufman unable to meet the requisite standard of conduct. It is determined that the evidence fails clearly and convincingly to prove that Kaufman in fact meets the criteria for discipline set forth in Section 468.217(1)(t), Florida Statutes.14
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Kaufman not guilty of inability to practice occupational therapy with reasonable skill and safety to patients due to intoxication, chemical dependency, or any other mental or physical condition. DONE AND ENTERED this 5th day of April, 2005, 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 5th day of April, 2005.
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 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.
