The Issue Should discipline be imposed against Respondent's physical therapist license for violation of Sections 486.125(1)(j), and (k), Florida Statutes (2002), and Florida Administrative Code Rule 64B17-6.001(2)(g), (3)(f) and (3)(h)?
Findings Of Fact Stipulated Facts Petitioner is the state agency charged with the regulation of Physical Therapy Practice pursuant to Chapters 20, 456, and 486, Florida Statutes. Respondent, Snehal Jawaharlai Patel, is a licensed Physical Therapist in the State of Florida, having been issued license number PT 20254. Respondent's mailing address of record is 2601 NW 44th Place, Gainesville, Florida 32605. Respondent was an employee working for Rehab Therapy Works and providing physical therapy services at Timber Ridge in February 2003. Respondent provided services to Patient R.G. while she was a resident at Timber Ridge. Dr. Pares was R.G.'s primary physician as reflected on the Timber Ridge Intake Sheet dated February 15, 2003. The February 17, 2003, Plan of Treatment Mr. Patel prepared was approved and signed by Dr. Pares on February 17, 2003. Dr. Cannon's April 14, 2003, correspondence to Timber Ridge indicates that Ms. G's patella was reduced and well- aligned on her February 25, 2003, office visit. The February 25, 2003, office note of Dr. Cannon indicating no bending of the knee was misfiled by Timber Ridge and was not transcribed by Timber Ridge. Patient R.G.: Her Care On February 10, 2003, Patient R.G. was 76-years old when admitted to Munroe Regional Medical Center (MRMC) in Ocala, Florida. The patient was brought to the emergency room at that facility having slipped in a puddle at Langley Medical Center causing her to fall on her right knee. X-ray findings at MRMC revealed a right patella fracture. Patient R.G. was treated by Odest Frank Cannon, Jr., M.D., an orthopedic surgeon. On February 12, 2003, Dr. Cannon addressed the patient's condition by performing a right patella open reduction internal fixation (ORIF). On February 15, 2003, Patient R.G. was transferred from MRMC to Timber Ridge Nursing and Rehabilitation Center (Timber Ridge) in Ocala, Florida, for rehabilitation. The nature of the rehabilitation to be provided at Timber Ridge was in relation to speech therapy, physical therapy, occupational therapy and management of medical care. Principally, the patient was placed at Timber Ridge to receive physical therapy following the knee surgery. When Patient R.G. was referred to Timber Ridge by Dr. Cannon, it was pursuant to the Physicians' Referral Form 3008 (Form 3008), establishing what Dr. Cannon had in mind by way of physician's orders, guidance in caring for the patient at Timber Ridge. The physician's referral was faxed to Timber Ridge on February 15, 2003, and bore Dr. Cannon's signature. In the pre-established format, Form 3008 refers to physical therapy where it reflects Dr. Cannon's comments and execution as follows: PHYSICAL THERAPY: [ ] New Referral [x] Continuation of Therapy - Assist SLR Walker gait - TDWB R leg TREATMENT GOALS: (Please Check) Frequency of Treatment _ Sensation Impaired [ ] Yes [ ] No Restrict Activity [ ] Yes [ ] No [ ] Stretching [ ] Coordinating Activities [ ] Progress Bed to Wheelchair [ ] Passive ROM [ ] Non-weight Bearing [x] Recovery to Full Function [x] Active Assistance [x] Partial Weight Bearing [ ] Wheelchair Independent [x] Active [ ] Full Weight Bearing [ ] Complete Ambulation [ ] Progressive Resistive Precautions: [ ] Cardiac Other Segismundo Pares, M.D., is a family-physician who was employed at Timber Ridge when Patient R.G. was treated. Dr. Pares as a family-physician is licensed in Florida. He is board-certified in family practice, geriatric medicine and hospice and palliative care. In his time at Timber Ridge, he was assigned to manage the medical problems that patients at Timber Ridge may have experienced, such as cardiac disease, lung disease, kidney disease, etc. The orthopaedic condition for patients undergoing rehabilitation at Timber Ridge was the responsibility of a physiatrist, a rehabilitation doctor at Timber Ridge, in conjunction with specialists in physical therapy, occupational therapy and speech therapy. The physiatrist was also involved in other matters of rehabilitation. The physiatrist at Timber Ridge was a Dr. Scott. Dr. Pares relied on Dr. Scott as a physiatrist to attend weekly team meetings, during which Patient R.G.'s physical therapy needs would be discussed. His expectation was that Dr. Scott would address any problems in providing physical therapy to the patient. For the most part, Dr. Pares primarily managed medical care for patients. But he had overall oversight over patient care. In his oversight role, Dr. Pares' plan of treatment for physical therapy in relation to Patient R.G. involved certifying the appropriateness of that therapy, relying upon Respondent who had produced the plan of treatment in that discipline. At present Dr. Pares has no recollection of Patient R.G. while she was at Timber Ridge. Another form of orders established in providing patient care at the facility, was telephone orders or facsimile orders from outside health care practitioners. Dr. Pares as the attending physician at Timber Ridge was responsible for signing off on those orders after review. This process did not involve conversations between Dr. Pares and the health care provider who initiated the telephone order or facsimile order. In addition, Dr. Pares would give his own telephone orders concerning patient care. One of the telephone orders signed off by Dr. Pares was dated February 17, 2003. It refers to: "PT clarification order: PT 5X weekly X 4 weeks for therapy, gait transfer, safety training, neuromuscular . . . " and other matters that Dr. Pares could not interpret at the hearing. The complete clarification order written down by the Respondent stated: "PT Clarification Order: PT 5 x weekly x 4 weeks for therex, gait transfer, safety training, neuromuscular reeducation & modalities PRN." Respondent signed the notations. Dr. Pares signed this outside telephone order on February 20, 2003, as the reviewing authority. Dr. Pares has no recollection of conversations with other persons concerning that telephone order. Respondent wrote the details of the February 17, 2003, telephone order on the form maintained at Timber Ridge in relation to Patient R.G. Dr. Pares relied upon Respondent when signing the telephone order under Respondent's recorded information, without knowledge of where the instructions originated that established the substance of the telephone order received on that date. Respondent's role in that act will be explained. Respondent's Treatment of Patient R.G. After he was licensed as a physical therapist in Florida in 2002, Respondent began his practice. In February 2003 when he provided treatment to Patient R.G., he was a staff physical therapist at Timber Ridge. His duties at that facility were to direct clinical care provided by his assistant, after evaluation and assessment of patients needs, as well as provide treatment and physical therapy to the patients. On February 15, 2003, when Patient R.G. came to Timber Ridge, Respondent's interpretation of the orders from Dr. Cannon on Form 3008 in the physical therapy section, was "Assist with straight leg raise (which is a separate clause), walker gait, touch down weight-bearing right leg, active assistive range of motion, active range of motion, also partial weight-bearing and recovery to full function." These orders were in view of Dr. Cannon's primary diagnosis set forth in the Form 3008 pertaining to a patella fracture, with ORIF on the patient's right knee. Respondent observed that the Form 3008 did not list any precautions in addressing the patient's physical therapy needs. Based upon the information set forth in the Form 3008 Respondent proceeded with the belief that Dr. Cannon expected that the physical therapy for Patient R.G. immediately begin with the performance of active range of motion. This was in keeping with Respondent's experience with this type of patient. At the time of hearing, the Respondent had dealt with approximately a dozen cases in provision of physical therapy to patients with this condition. Nothing in the Form 3008 from Dr. Cannon, pertaining to physical therapy, created an impression in Respondent's mind that he should have not performed range of motion exercises on Patient R.G. There was a question in Respondent's mind concerning the weight-bearing status of Patient R.G., a separate consideration from the question of active range of motion. Respondent addressed the weight-bearing status question by seeking clarification from Dr. Cannon. When Respondent called Dr. Cannon to clarify the weight bearing status, he took the opportunity to make certain of other aspects of the orders previously given by Dr. Cannon, should there be an error of perception concerning other items set forth in Form 3008 pertaining to the patient physical therapy. On February 17, 2003, Respondent wrote the note in the patient's chart concerning Dr. Cannon's physician's telephone order. The note refers to the "PT clarification order" and the expectation that the patient have "therex." Respondent intended by his entry in the patient chart, that he understood Dr. Cannon's orders to include range of motion. The note on the clarification order does not specifically refer to the term "range of motion." It does not specifically refer to "weight bearing," the issue which prompted the call for a clarification order. Respondent concedes that the term "therex" has a number of possible definitions when addressing types of therapeutic exercise. After receiving the clarification order from Dr. Cannon, Respondent prepared a plan of treatment for Patient R.G. It called for active range of motion exercises to be performed by the patient, increasing the range over time. Leslie Sutack, a physical therapy assistant supervised by Respondent provided the physical therapy to Patient R.G. Ms. Sutack's efforts were overseen by Respondent on a daily basis. Respondent was in the same room while Ms. Sutack provided physical therapy to Patient R.G. Dr. Pares signed the plan of treatment for Patient R.G. in relation to physical therapy. Dr. Scott was aware that Patient R.G. was receiving physical therapy that included range of motion. On April 9, 2003, Respondent became aware that Patient R.G. had seen Dr. Cannon earlier and that Dr. Cannon's order was for no range of motion on the part of the patient. Respondent was unaware of this choice by Dr. Cannon prior to that date in April 2003 because of an institutional error at Timber Ridge, in which Dr. Cannon's order against range of motion had been misplaced. Ordinarily, Dr. Cannon's order would have been provided to the physical therapy department at Timber Ridge where Respondent was employed. The order from Dr. Cannon was dated February 25, 2003, prohibiting range of motion therapy. Without awareness, Respondent preceded with range of motion treatment from February 15, 2003 until the April 2003 date based upon his understanding of Dr. Cannon's February 15, 2003, orders in the Form 3008 for Patient R.G. Mike Mandarino was the director of rehabilitation at Timber Ridge while Patient R.G. was undergoing treatment. He has experience with orders from physicians at MRMC for patient care after transferring to Timber Ridge. The orders would be provided on the Form 3008. Absent an addendum to the Form 3008 by the referring physician, Timber Ridge personnel would use the Form 3008 as controlling when determining the doctor's choices for treatment. Mr. Mandarino explains that Dr. Pares' role at Timber Ridge at the time was that as the person responsible for the overall patient care. Dr. Scott oversaw rehabilitation received by a patient. In his testimony, Mr. Mandarino confirmed that Dr. Cannon's February 25, 2003, order prohibiting range of motion for Patient R.G. had been misfiled at Timber Ridge. Expert Opinion Dana Lameier is licensed in Florida as a physical therapist. She has been licensed for 14 years. She earned a Bachelor's degree in physical therapy from the University of South Alabama. She also holds a master's degree in health care administration from Webster University. She actively practices physical therapy. On occasion she has served as a teacher in physical therapy. She had been an adjunct instructor for Pope Community College. Ms. Lameier's present position is as Director of Rehabilitation at Osceola Regional Medical Center. She is responsible for supervising the therapy services provided in the hospital and through the outpatient services in that facility. Those therapy services include physical therapy. Ms. Lameier supervises three physical therapy assistants. She treats patients in the hospital setting and as outpatients. Ms. Lameier has familiarity with the expectations for documentation of services provided by a physical therapist. She gained that understanding through her formal education, continuing education, reading of books, on the job training, and through the Joint Commission on Accreditation of Health Care Organizations (JACHO). Ms. Lameier is familiar with the standards of practice for physical therapists in Florida. She is familiar with the standard of care for physical therapists in addressing orthopaedic cases. Ms. Lameier is familiar with the circumstances of patients who are dealing with recovery from knee surgery, this through her schooling and her work experience, involving somewhere between 20 and 50 cases. Ms. Lameier is uncertain concerning the number of knee rehabilitation patients that she has assisted who have undergone ORIF. Although Ms. Lameier is not certain of the number of patients she has treated following ORIF of the petalla, she agrees that it would be less than 20 patients. The nature of her work done in physical therapy has involved extensive association with orthopedic surgeons. Concerning Patient R.G., Ms. Lameier understood that the patient had a severely comminuted fracture. In addressing rehabilitation for that type of surgery, Ms. Lameier believes that full recovery of the function is expected in six months. Bone healing would take place within six to eight weeks. In addressing a person who had undergone ORIF, before providing physical therapy, Ms. Lameier would wish to know the medical history, such as problems with diabetes, osteoporosis, opteopenia, medications taken by the patient and other matters that might influence the rehabilitation. Age is a factor that enters into the discussion because elder patients heal more slowly and tend to have more medical issues. According to Ms. Lameier, when addressing physical therapy for a patient, the therapist, like other health care professionals, needs to be concerned that no harm befall the patient. If there is a question concerning the approach to care, Ms. Lameier would take a more conservative approach until certain of the underlying status of the patient. Ms. Lameier was accepted as an expert in the standard of care expected of physical therapists practicing in Florida. Ms. Lameier is familiar with the requirements of a plan of a treatment for a patient undergoing physical therapy. Following an evaluation of the patient's condition, consistent with the requirements of law, the physical therapist prepares a plan that lists the short-term and long-term goals for the patient. The plan includes the interventions that are involved with the care, the modalities to be used and a discharge plan. The physical therapist is responsible for creating the plan of care based upon his or her judgment. In performing the evaluation leading to the plan of care, a review of documents pertaining to the patient is made. Tests are performed to ascertain the patient's strength, balance, potentiality for range of motion, all directed toward gaining an impression of the patient's ability to perform physical activities. The plan of care may be changed to address the patient's status at a given time. The plan of care may be referred to as a plan of treatment, as it was in Patient R.G.'s case. According to Ms. Lameier, in relation to telephone orders, the physical therapist is expected to discuss the order with the physician, physician assistant, or nurse practitioner who gave the order and read back the order once the physical therapist has written it down. The written information concerning the order recorded by the physical therapist would reflect the name of the practitioner who gave the order and the physical therapist, with the physical therapist's signature affixed. In reviewing the plan of treatment created by Respondent to address Patient R.G.'s condition, Ms. Lameier commented on information available to the Respondent before he created the plan of treatment. To arrive at her opinions concerning the care Respondent provided Patient R.G., Ms. Lameier reviewed documents from Timber Ridge, MRMC, documentation from Dr. Cannon's office, and certain affidavits. Part of that information came from the Form 3008 created by Dr. Cannon. Ms. Lameier expressed the opinion that Respondent did not meet the standard of care expected of him in preparing the plan of care for Patient R.G. She arrived at this opinion based upon her knowledge of the Form 3008 for the patient, her training as a physical therapist, and basic protocols, for what she describes as the orthopedic process. In her opinion, when you have a patella fracture, such as the case at issue, which she again describes as a severely communited patella fracture, the standard of care is to leave the knee in extension until it is radiographically demonstrated that bone healing is taking place. As a physical therapist, Ms. Lameier believes that the bone healing in a healthy individual generally requires 6 to 8 weeks. In an elderly person with diabetes, and osteoporosis it may take longer, as with Patient R.G. Ms. Lameier mentions the protocol for immobilization of the knee as 3 to 6 weeks in that case. Ms. Lameier's opinion concerning Respondent's care provided Patient R.G. is in recognition of the need for Respondent to practice with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapist, as being acceptable under similar conditions and circumstances. Ms. Lameier does not believe that the Respondent met the standard of care in that he was not knowledgeable of the basic protocols for bone healing and of the orthopedics involved with Patient R.G.; that he performed a range of motion early and without specific recommendation from the orthopedic surgeon, and that his choices could have caused harm or failure of the device that was created to hold the patella together. Respondent had identified range of motion as a goal for Patient R.G. to be carried out by the physical therapist assistant. Ms. Lameier thinks this was inappropriate given the severity of the knee injury experienced by the patient and that the physical therapy was undertaken prematurely. In describing the duties of the doctor and the physical therapist, the referring physician makes the diagnosis for the patient and the physical therapist determines the appropriate rehabilitation to be provided in view of the diagnosis, according to Ms. Lameier. In this example, the physician's diagnosis was fractured patella and the physical therapy treatment that Respondent was to provide was a response to the patient's difficulty walking. Ms. Lameier expressed the opinion that Respondent failed to properly interpret the physician's referral in Patient R.G. Had there been some question or uncertainty on Respondent's part, he should have contacted the physician, the physician assistant, or the nurse practitioner associated with the physician. Ms. Lameier believes that Respondent should have made the physical therapy assistant under his supervision aware of special problems or cautioned that person of special problems or contraindications for Patient R.G., that might limit her range of motion because of the surgery that the patient had undergone. In Ms. Lameier's opinion, having failed to properly interpret the physician's referral in Form 3008, Respondent did not follow up for specific clarification of that referral. He then created a plan of care to utilize what Ms. Lameier refers to as "pretty aggressive range of motion for something that has a protocol of general immobility initially." In addition, Ms. Lameier expressed the opinion that Respondent did not document clearly the precautions, special problems, or contraindications that were involved in the diagnosis. There is a requirement for documentation of contraindications in Ms. Lameier's opinion. Ms. Lameier's reading of Dr. Cannon's instructions in the Form 3008 for physical therapy, is that Dr. Cannon calls for continuation of therapy; assists with SLR, referring to straight leg raises; walker gait; and TWB, referring to touchdown weight- bearing on the right leg. More specifically, the straight leg raise would mean lifting the leg straight up with no bend at the knee, with the pivot point being at the hip. The reference to assist with straight leg raise is describing circumstances after a patella fracture or an injury to the patella. There is a weakness in the quadricep muscle that would prohibit being able to lift the leg independently, so assistance is required. On the subject of any orders that Dr. Cannon gave concerning active range of motion for Patient R.G., Ms. Lameier expressed the belief that the physician included in his treatment goals for active assist movement and active movement, referring to the assist with the straight leg raise. The check off of the word "active" meant active range of motion that the therapist does not participate in. While the Form 3008 could be interpreted as an order to begin an immediate active range of motion for Patient R.G., Ms. Lameier does not believe that it would be a range of motion to the knee. The straight leg raise is a hip exercise. The reference within the Form 3008 to "active assistance" pertained to assistance with the straight leg raise, in her view. Recognizing precautions and contraindications related to the underlying diagnosis for Patient R.G., Ms. Lameier does not believe that Dr. Cannon would ask a physical therapist to perform active range of motion to the knee. This in connection with the reference to assisting with the straight leg raise, meaning that the doctor would like active assistance during those exercises progressing to active range of motion. Ms. Lameier acknowledges that a physical therapist might form a different interpretation of Dr. Cannon's orders but any question about active range of motion to the knee to commence immediately, would raise a "red flag" that would cause her to contact the physician to clarify the order, if that were the interpretation arrived at. However, if a physician wanted to inform a physical therapist of precautions for the patient, such as not bending the knee or keeping the knee immobile at all times, Ms. Lameier would "hope" that it would be stated in the Form 3008. That would be her expectation. No precautions were indicated by Dr. Cannon in the Form 3008 in the case involving Patient R.G. Ms. Lameier's reading of the reference to walker gait, is that when the patient walks she uses a walker and that she only puts her toe down for weight bearing, to be used as a balance on the right leg side. The reference to walker gait does not mean bending the leg, according to Ms. Lameier's interpretation of Dr. Cannon's orders. TWB does not mean bend the leg. Walker gait - TWB does not mean bend the leg. The box that is checked for "active assistance" to be provided Patient R.G., in Ms. Lameier's interpretation, means that the therapist would provide some of the work, in that the patient is unable to do it independently. This reference does not refer to range of motion, nor to the expectation that Patient R.G.'s knee be bent, as Ms. Lameier perceives it. In the box marked "active" in relation to physical therapy to be provided Patient R.G., it is interpreted by Ms. Lameier to mean that the physician wanted the patient to progress toward active movement. As Ms. Lameier comments, "So the straight leg raise needs active assistance to begin; but we would hope that as she recovers and gains more function and strength, that she would be able to perform those actively, meaning the therapist would not need to assist with the movement." According to Ms. Lameier in her understanding of the box marked "partial weight bearing," this would mean " . . . approximately 50 percent of the weight . . . " Ms. Lameier remarks, "and again, the treatment goal when she started out as touch down weight-bearing, meaning just her toe down for balance and the goal being that she would progress to partial weight- bearing." Finally, there is a reference in the physical therapy section in Form 3008 for Patient R.G. checked in the box as "recovery to full function." This is understood by Ms. Lameier to be a long-term goal for the patient to return to full function, live independently, as she had prior to the injury. In commenting on the February 17, 2003, clarification order, Ms. Lameier's interpretation is that it called for five times weekly times four weeks for therex, gait transfer, safety training, neuromuscular-education and modalities PRN, as signed by Respondent. It was also signed by Dr. Pares. Ms. Lameier refers to this as a "standard clarification order" that is required for every patient in the skilled nursing facility. In the sequence, the physical therapist must make certain that there is an initial order for physical therapy, evaluation and treatment, followed by the performance of an evaluation, creation of a plan of care and then a clarification order, which includes all the interventions in the plan that the therapist would use. In her reading, Ms. Lameier does not believe that the February 17, 2003, clarification order makes mention of weight-bearing status pertaining to Patient R.G., nor does it contain any direction on performing bending of the knee exercises. Ms. Lameier's emphasis on the February 17, 2003, telephone order was that it did not specify or confirm active range of motion for Patient R.G. It did not include an indication or directive to bend the knee to perform knee exercises involving bending of the knee; and it did not comment on weight-bearing. Her interpretation of "therex" is that it is a broad term intended to refer to therapeutic exercises, everything from aerobic exercises, stretching, strength exercises, range of motion, etc. The reference to the term in this case is not apparent as to the exercise(s) expected to be performed by Patient R.G., according to Ms. Lameier. Ms. Lameier expressed the opinion that Respondent failed to ask for clarification or contraindicators for Patient R.G., in that she finds no indication in the patient chart that supports that Respondent made contact with the physician, or others on the physician's staff to make those determinations. Assuming that Respondent called the orthopedic physician to receive clarification with regard to weight bearing and range of motion, Ms. Lameier did not find documentation in the Timber Ridge records to reflect receipt of a clarification order on those subjects. In her opinion, to be an acceptable clarification order it needs to be written verbatim. In expressing her opinion concerning the comminuted fracture, Ms. Lameier acknowledged that information provided to Timber Ridge only referred to a right patella fracture with ORIF. Concerning her comments on the comminuted fracture, the reference is out of the operative record or report from Dr. Cannon which refers to "the inferior pole was comminuted . . . ." That report was rendered on February 10, 2003. No indication of precautions concerning the fracture were provided prior to February 25, 2003, the physician's note of February 25, 2003, information not made known to Respondent until April 2003. The misfiled note from Patient R.G.'s chart maintained by Dr. Cannon, dated February 25, 2003, refers to "no bending of RLE." The RLE was understood to mean right lower extremity. John Hisamoto is a physical therapist. He was licensed in Florida in 1981. He has practiced physical therapy in Florida since that time. At present Mr. Hisamoto practices at Proactive Physical Therapy. He has been in that position for 14 years. Mr. Hisamoto has experience treating patients who have suffered knee injuries. He has treated in excess of 5,000 who were seen following knee surgery. Mr. Hisamoto is an instructor at the University of South Florida, where he teaches therapeutic rehabilitation and modalities. Mr. Hisamoto acts as a consultant to a number of professional sports teams: the New York Yankees (baseball), the Tampa Yankees (baseball) and the Tampa Bay Lightning (hockey). More specifically Mr. Hisamoto is familiar with the protocol when treating a fractured patella with ORIF, such as experienced by Patient R.G. Mr. Hisamoto was accepted as an expert in physical therapy to offer opinion testimony. In connection with the physical therapy to be provided a patient with that condition, the patient has undergone a reduction in the fracture to improve the congruency in the joints and to hasten bone healing. There is the effort to improve the capacity to perform early range of motion to lessen stiffness and problems associated with the knee. The physical therapy that the patient who has undergone ORIF would be exposed to, could include use of a knee immobilizer to perform some touchdown weight-bearing activities. Here the Timber Ridge treatment plan called for the use of a knee immobilizer on the right knee. The patient is taught to do transfers, how to begin touchdown positions. One of the other considerations in the therapy is the range of motion exercises that the patient is taught to perform. In Mr. Hisamoto's experience, after ORIF, two or three days beyond the operation is allowed for wound healing. Then the range of motion exercises begin. This is a choice made by the physician. From Mr. Hisamoto's experience, the patient will have been put through a full range of motion by the physician at the time of surgery. The full range of motion is through an arc of 0 to 90 degrees. Given the degree of swelling following an injury, the full range of motion within that arc is not immediately available when performing physical therapy. In the case such as Patient R.G.'s early range of motion would be 0 to 30 degrees or 0 to 45 degrees. Mr. Hisamoto's opinion is that Respondent's plan of treatment calling for range of motion increased by 10 degrees in the first two weeks was a very conservative choice, not an inappropriate response to Patient R.G.'s case. Mr. Hisamoto offered no criticism of Respondent's choice to call for clarification of the initial orders on the Form 3008. He finds the initial orders in the Form 3008 provided by Dr. Cannon evident in the diagnosis and the expectation by the physician that what was to occur was the use of active-assist range of motion, the accepted standard of care for ORIF of the patella. In Mr. Hisamoto's opinion, he would have expected any precautions to be set forth in the Form 3008 if Dr. Cannon had that intention. They were not detailed. From Dr. Cannon's notes concerning the operation on Patient R.G.'s knee, Dr. Cannon had confirmed the range of motion in the patient's knee while in the operating room. Dr. Cannon noted that the fracture was very stable. Under those circumstances, Mr. Hisamoto believes that it would be appropriate for the patient to be exposed to early range of motion exercises by the physical therapist. In that connection, Mr. Hisamoto described the pursuit of active range of motion exercises as depending on the physician who performed the surgery and any complications that may have been experienced in relation to the wound, the incisional site. Active range of motion would occur in the first week, taking into account the need to pay attention to the incisional site. That is what transpired in Respondent's care provided Patient R.G. as to timing. Mr. Hisamoto expressed the opinion that Respondent met the standard of care in providing services to Patient R.G. consistent with what would be expected of a physical therapist in Florida. This included necessary communication by Respondent with physicians involved with Patient R.G.'s treatment. Finally, concerning the clarification order notations made by Respondent on February 17, 2003, Mr. Hisamoto expressed the opinion that there are multiple definitions that may be ascribed to the term "therex". Marty Huegel is a licensed physical therapist in Florida. He received his license in 1979. Since that time he has consistently practiced physical therapy. Currently Mr. Huegel is the Director of Physical Therapy for Quest Physical Therapy in Gainesville, Florida. He also serves as the Director of Rehabilitation for the University of Florida Athletic Association. Mr. Huegel has experience treating patients with knee problems. He has treated approximately 6,000 knee patients following their surgery. Mr. Huegel is familiar with the protocol for treating a fracture of the patella with ORIF, such as the case of Patient R.G. Mr. Huegel has had what he describes as "quite a few" cases involving patients in the age group represented by Patient R.G. Mr. Huegel was received as an expert in the field of physical therapy to offer opinion testimony. Mr. Huegel expressed his opinion concerning the appropriate protocol or standard of care for patients such as Patient R.G. when addressing an ORIF after patella fracture by provision of physical therapy. The primary concern is that stabilization of the fracture be achieved. The surgeon will provide assurance to the physical therapist through the operative note that the patient has been taken through the range of motion following the surgery. This is in anticipation of the need to move the knee to avoid stiffness. Ordinarily the only thing that would prohibit the movement of the knee would be wound issues. Those wound issues would be more prevalent in older patients. If the wound is closed and appears to be healing, then the physical therapist is interested in immediate motion for the patient in the knee. With some patients the movement of the knee can occur the day after surgery. In older patients it may be a few days before that would be an appropriate choice, principally in relation to wound management. In the elderly patients Mr. Huegel has a concern that the range of motion exercises begin early because those patients, if they experience stiffness, can become disabled. Mr. Huegel agrees with Respondent's choice to begin range of motion physical therapy for Patient R.G. on February 17, 2003. Mr. Huegel refers to the immobilizer that was prescribed for Patient R.G. He explains that when physical therapy is being provided to the patient, the immobilizer would be removed in the setting where physical therapy was being provided. Otherwise the patient would utilize the immobilizer. Mr. Huegel does not believe that it would be the appropriate standard of care to wait for radiographic evidence of healing before range of motion exercises are undertaken. That would be important if the surgeon were concerned that there was not the expected fixation in the fracture. Mr. Huegel would expect the physician to mention the problem with fixation if it were there and indicate that the knee not be moved for a period of time or limit the range of motion and its arc. In Patient R.G.'s case, the operative report was to the effect that the fracture was stable as Mr. Huegel understood the circumstances. That information would have been relied upon by Mr. Huegel in his plan of care, consistent with his belief that the patient was a proper candidate for early range of motion exercise. In reviewing the Form 3008 in the section pertaining to physical therapy, Mr. Huegel expressed his understanding of Dr. Cannon's orders. His interpretation was that the doctor expected assistance with straight leg raises. Dr. Cannon wants the patient to use a walker for gait. The form in it depiction of the goals refers to the "active" box being checked and what Mr. Huegel refers to as "assisted active" concerning range of motion. The placement of those terms on the form under the term for "passive range of motion (ROM)," leads him to conclude that the doctor was absolute in his expectation that the knee be moved right away. Nothing in the doctor's orders found on Form 3008 led Mr. Huegel to believe that the physician did not intend that immediate active range of motion begin for Patient R.G. Mr. Huegel considers the matter set forth in the Form 3008 pertaining to physical therapy, to constitute the original order for physical therapy prepared by Dr. Cannon. Mr. Huegel would not have sought clarification from Dr. Cannon of the information set forth in the physical therapy section to Form 3008. He believes the explanation in the Form 3008 is straight forward enough. Mr. Huegel believes that he could have prepared a plan of treatment based upon the information set forth in the physical therapy section to the Form 3008 related to Patient R.G. Mr. Huegel reviewed the plan of treatment prepared by Respondent for Patient R.G. He believes that that plan was appropriate, with the exception that he deemed it to be conservative in its reference to as goal of 10 degrees of range of motion. Mr. Huegel would have extended the range of motion and the arc 30 to 40 degrees. Otherwise Mr. Huegel offered no criticism of Respondent's plan of treatment. This reference is to the expectation of physical therapy within the first two weeks as to the arc or range of motion. Mr. Huegel does not believe that the treatment provided by Respondent for Patient R.G. was too aggressive. Mr. Huegel does not believe that there were any precautions that Respondent should have taken in treating Patient R.G. that were not taken. Respondent properly documented the treatment of Patient R.G. in Mr. Huegel's opinion. In Mr. Huegel's opinion, Respondent practiced physical therapy with the level of care, skill and treatment recognized by a reasonably similar physical therapist as acceptable under similar conditions and circumstances. Mr. Huegel expressed the opinion that Respondent communicated appropriately with physicians regarding the patient's treatment. Mr. Huegel expressed the opinion that Respondent properly interpreted the orders received from Dr. Cannon and followed those orders. Having considered the opinions of the experts in view of the allegations of the Administrative Complaint and facts found, the opinions expressed by Mr. Hisamoto and Mr. Huegel that Respondent practiced with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapy practitioner as being acceptable under similar conditions and circumstances is more persuasive. Their opinion that Respondent interpreted and acted in accordance in the orders from Dr. Cannon, known to Respondent, is accepted. Their opinion that Respondent participated appropriately, as part of the collaborative effort to treat Patient R.G. is accepted. Based upon their opinion, nothing in the Respondent's conduct in relation to the treatment provided Patient R.G. is considered beyond the opportunity provided under his license or outside his competence to perform. Prior Disciplinary History There was no indication of prior discipline imposed against Respondent's physical therapist license.
Recommendation Based upon the findings of facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Counts One and Two to the Administrative Complaint. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2007. COPIES FURNISHED: Lynne A. Quinby-Pennock, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Donna M. Keim, Esquire Bice Kohl Law Firm, P.L. Post Office Box 1860 Alachua, Florida 32616 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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 The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
