Findings Of Fact Background Respondent, Michael Guirgis Sedra, is now and was at all times material hereto a licensed physical therapist in the State of Florida, having been issued license number PT 0004299. During June 1990, respondent was under contract with Professional Health Care Services Agency to provide physical therapy services, and on June 24, 1990, was assigned to Humana Hospital of South Broward (Humana Hospital) to render physical therapy services in the absence of the assigned therapist. On such date, respondent arrived at the hospital at or about 8:00 a.m., and rendered services to approximately 20-24 patients. Included among the patients treated by respondent that day was R. I. (the "patient"), the complaining witness in the instant case. The patient was admitted to Humana Hospital on June 18, 1990, complaining of abdominal pain, primarily in the right lower quadrant radiating towards the back. The patient's initial diagnosis was stated to be abdominal pain, electrolyte imbalance, and diabetes mellitus, and her ultimate diagnosis chrolecystolithiasis, hepatomegaly with fatty infiltration, uncontrolled diabetes mellitus, hypertension, electrolyte imbalance, and degenerative joint disease of the right hip. During the patient's course of treatment at Humana Hospital, her physician entered an order on June 24, 1990, for physical therapy. Pursuant to such order, respondent visited the patient in her room, at some time between 10:00 a.m. and 12:00 p.m., and performed a brief examination. Following such examination, respondent advised the patient that he would return that afternoon to transport her to the physical therapy department to render the treatments ordered by her physician. These would be the first physical therapy treatments ever experienced by the patient. At 2:35 p.m., June 24, 1990, respondent transported the patient, by wheelchair, from her room to the physical therapy department, which was located downstairs and vacant at the time. Once the patient was on the treatment table, lying on her left side, respondent provided hot pack treatment for approximately 20 minutes and an ultrasound with electrical stimulation treatment for approximately six minutes to the patient's right side. The ultrasound treatment combines a form of deep heat with electrical stimulation, which produces a feeling of contraction and relaxation of the area to which it is applied. Here, because the patient's pain was located in the right hip area, such treatment was mostly applied to her sacroiliac joint (the tail bone) and right hip area. Following treatment, respondent returned the patient to her room between 3:00 p.m. and 3:15 p.m. There is no significant dispute regarding the foregoing facts, nor the propriety of the hot pack and ultrasound treatments rendered to the patient. Rather, respondent's evaluation and treatment was deemed not only within the prevailing standards of practice, but "top notch," by petitioner's expert. What is in dispute, however, is whether following the course of such treatments any improprieties occurred or, more specifically, whether respondent sexually assaulted the patient in the physical therapy room. The participants The patient, age 62 at the time in question, was born in Hungary, immigrated to the United States at age 29, and is a naturalized citizen. She resides in Hollywood, Florida, where she shares a home with her son and daughter-in-law, is retired, and has been divorced since 1980. The patient's formal education is limited to the eight years she attained in her native country; she contends she neither reads nor writes the English language; and she speaks the English language in a somewhat accented and broken manner. Her comprehension of the language, based on her testimony at trial and a review of the record, is, however, sound. Notwithstanding, her testimony regarding many material matters was conflicting and lacked candor. The respondent was born in Cairo, Egypt, on January 20, 1954, immigrated to the United States in or about 1982, and is a naturalized citizen. He resides in Lauderhill, Florida, with his wife and two daughters, 5 and 9 years of age, and has been licensed as a physical therapist in the State of Florida since August 1985. But for the pending charges, respondent has never been the subject of disciplinary action. He is articulate, genteel in manner, considered truthful and honest by those who know him, as well as competent, considerate and compassionate. The dispute To support its case, petitioner offered the testimony of the patient, who testified that on Sunday, June 24, 1990, respondent transported her from her room, which was located on the fourth floor of the hospital, to the physical therapy department room, which was located on the first floor. According to petitioner, no one else was present in the area, and as respondent wheeled her into the room he paused momentarily and locked the door. Respondent then assisted the patient onto a physical therapy table, where he positioned her on her left side, placed three pillows between her legs, and then, over the course of the next 20 to 30 minutes, treated her with hot packs and ultrasound with electrical stimulation. Respondent concedes that he transported the patient to the physical therapy room as asserted by the patient, but avers that the area was not empty at the time. According to respondent, the physical therapy department abuts two other departments in the hospital, respiratory and EKG, and at least the respiratory department was staffed that day. Moreover, the physical therapy department is located near the entrance to the hospital, the cafeteria, and the elevators, all of which are subject to public access. As to the remainder of the patient's assertions, respondent denies that the door was locked, or even capable of being locked, and denies that he placed three pillows between the patient's legs. Rather, he avers that he assisted her onto a physical therapy table where he positioned her on her left side, placed one pillow between her legs and two under her head, and then, over the course of the next 30 minutes, treated her with hot packs and ultrasound with electrical stimulation. 1/ Following the treatments, the patient avers that the respondent sexually assaulted her before returning her to her room. Respondent denies such assertion, contends that no improprieties occurred, and that following the conclusion of the treatments he returned her to her room. Where the truth lies is, at best, elusive. 2/ The patient's description at hearing, concerning respondent's sexual assault and her reactions, when compared to previous statements she had given (respondent's exhibits 1, 3, and 8), is a gross exaggeration, and conflicts in material respects with prior recountings, which she either denies or rejects. Juxtaposed with such uncertain proof, the proof offered on behalf of the respondent was consistent and appeared worthy of belief. Under such circumstances, it cannot be concluded, with the requisite degree of certainty required by law, which version accurately reflects what transpired on the day in question or that any offense was committed. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of June 1993. WILLIAM J. KENDRICK 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 22nd day of June 1993.
The Issue Whether the allegations in the Amended Administrative Complaint have been proven by clear and convincing evidence and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Physical Therapy Practice, (Petitioner or Board) is the state agency that licenses and has regulatory jurisdiction of physical therapists. At the time of the hearing, Respondent Raymond Cralle (Cralle) had practiced physical therapy for three decades and was known to colleagues as a competent and innovative professional. He holds licenses in Florida, Virginia, Iowa, and other states by reciprocity, and also holds a specialized certification in physical therapy for persons suffering from injuries to the brain and spinal cord. Cralle received his academic training from the University of Iowa’s School of Allied Health. Upon graduation, he began a hospital based practice at Good Samaritan Hospital in West Palm Beach, Florida, and thereafter built a large and successful private practice in the Greater West Palm Beach area. Over the years, Cralle was also active in professional activities. In addition to speaking, writing and consulting, Cralle was heavily involved in legislative advocacy work on behalf of his profession. Throughout his career, his clinics have usually had some type of formal or informal relationship with schools of physical therapy, offering opportunities for students to intern or to perform other types of work. By 1992, Cralle was operating 13 clinics. That year, he sold some of his practice to HealthSouth and the rest to Novacare, two publicly traded companies. Not ready to retire, Cralle opened another private practice in Delray Beach, Florida. At the time of the events giving rise to the charges against Cralle, his clinic had space to treat eight patients at a time. In addition to Cralle, three physical therapists, one occupational therapist, and one physical therapy intern were working regularly on the premises. In addition, aides were employed to perform non- professional chores such as setting up equipment, assisting patients in making their way to treatment rooms, draping patients, and the like. For approximately three months in the year 2000, the precise dates of which are not reflected in the record, physical therapy student Helen Mesa (Mesa) was employed as an aide in Cralle’s clinic. When treating patients, Cralle was frequently accompanied by a colleague, either an aide or a more highly trained staffer, who would be asked to enter notes on the patient’s chart. The notes were dictated by Cralle. Cralle used staff this way to avoid having to interrupt treatment in order to document treatment. When accompanied by student interns or aides such as Mesa, the dictation served a teaching function as well. Mesa's brief tenure at Cralle’s clinic is consistent with her pattern of unstable employment. Since she left Cralle’s employ, she has worked in at least three jobs, including one in a supermarket and two involving physical therapy, and each of these jobs lasted roughly three months. Mesa’s instability is further evidenced by the fact that initially she resigned from Cralle’s clinic, saying she could not handle the stress of the job and single motherhood. Cralle hired a replacement while Mesa worked out her notice. Then, Mesa changed her mind and asked to stay. Cralle, having promised her job to another, said no. The circumstances surrounding her departure may or may not be the cause of Mesa’s hostility toward Cralle, but the hostility was unmistakable during her testimony in this case. Her demeanor under oath was prosecutorial. She would volunteer information and argue with defense counsel about what questions he should be asking her. As a student, Mesa was taught a method of documenting patient progress known as SOAP notes. The acronym stands for Subjective-Objective-Assessment-Plan. Under the SOAP methodology, the “S(ubjective)” portion includes everything that the patient says about how he feels. The “O(bjective)” portion states what was done with the patient. The “A(ssessment)” portion states what progress the patient is making toward short or long-term goals. The “P(lan)” portion reflects what is expected by or at the next treatment. Cralle does not like the SOAP form of note-taking and generally does not use it in his practice. No law or rule requires the use of the SOAP format in documenting, or “charting” patient progress. However, when assisted by Mesa, Cralle often used the SOAP format when dictating notes, because it was familiar to Mesa from her studies. Mesa is the only complaining witness. At hearing her claims about Cralle’s charting practices went well outside the boundaries of the amended administrative complaint. She claimed that she worked on patients with no supervision and that some of “her” patients did not have an evaluation sheet in their chart, although such sheets are the most basic tool of physical therapy practice. Mesa also provided the only testimony in support of the Board's primary charge, which is that she wrote entire SOAP notes on charts without any input, let alone dictation, from Cralle or other qualified personnel. In addition, Mesa claimed that none of the patient files in which she wrote notes had been signed by Cralle the next time she worked with that patient. Yet, it is undisputed that of the 103 partial patient charts reviewed by the parties during discovery, all but about 15 percent of the patient entries in Mesa's handwriting had been signed off on by Cralle. Of 17 unsigned notes placed in evidence, at least some reflect a degree of technical knowledge and vocabulary that Mesa did not have. Her claim to have written each of them, entirely on her own, is not credited. There was no evidence as to whether, or under what circumstances, a physical therapist is required to initial patient notes, and none of the allegations of the Amended Administrative Complaint allege errors or omissions with respect to Cralle's signature, initials, of lack thereof. There was no evidence that any or all of the alleged charting deficiencies compromised patient care or safety in any way. Rather, as Petitioner’s attorney stated during the questioning of its only other witness, physical therapy expert Linda Nash (Nash), “As you know, this case is about what duties a physical therapist can delegate to unlicensed personnel . . . what are [a] physical therapist’s responsibilities as far as the record keeping itself?” Nash’s answer was instructive. She replied: Well, we have a responsibility to document everything and, and document it in a form be it SOAP or narrative or any way that demonstrates that that patient, where they were the moment that they came in and how they were continuing to progress. For several reasons. Number one, for your own benefit because if you have to defend yourself in a case you have, you know, notes that are documented as to what went on and what you did for insurance purposes. Insurance companies don’t like to pay if they’re, if the patient is not making progress. And you need to be able to document those kinds of things in the notes. After revealing that her primary interest in good documentation is as a means of covering herself in malpractice litigation or to obtain insurance reimbursement, a theme which would recur again on her cross-examination (in her words, “so that I covered my tail”), Nash eventually turned her attention to issues pertinent to the state’s interest in protecting the public’s health and safety, but provided no testimony indicating that any or all of Cralle's charts constituted a danger to any patient. Nash acknowledged that in her years of experience, she has never seen a "perfect chart." Nash, as well as the experts who testified on behalf of Cralle, agreed that it would be improper to delegate to an unlicensed aide the task of assessing the patient and determining the content of a plan of care. The most that could properly be delegated is the documentation of tasks and activities performed by patients in the presence of the unlicensed person. It was also undisputed among the experts that there is nothing improper about dictating notes to an unlicensed aide. The uncorroborated testimony of Mesa that she was delegated tasks which may be lawfully performed only by a physical therapist is not worthy of belief when evaluated in the context of Cralle’s 30 years as a successful and well-regarded physical therapist. Cralle had a number of associates and employees of long standing whose qualifications were entirely appropriate for all aspects of patient care and record keeping. It is illogical to assume that Cralle would delegate vital functions to a brand new employee with no experience, and there is no credible evidence that he did. Petitioner's expert Nash realized that because the state’s entire case rested upon Mesa’s credibility, it would be important ”. . . to insure that no misrepresentations [were] provided, the office manager as well as the current PT techs and PTs are interviewed for accuracy.” Petitioner did not follow-up on that recommendation. Had those individuals been interviewed, and additional office records been examined, the true circumstances surrounding Cralle's record keeping practices could have been ascertained. In the absence of such evidence and witnesses, there is no clear and convincing evidence of the Rule violations alleged. Mesa claimed that two physical therapists working in Cralle’s clinic instructed Mesa not to write in the charts of their patients, and, further, that these therapists complained to Cralle about his practice of permitting Mesa to write in his charts. Petitioner offered no corroboration for these claims, even though one of the physical therapists to whom Mesa's testimony on this matter referred was present and testifying on behalf of Cralle. A number of notes in Mesa's handwriting included frequent use of phrases such as “patient tolerated treatment well due to no complaints” and “continue with plan of care.” These are not models of informative note writing, but neither are they clear and convincing evidence of improper delegation when viewed in light of the entire record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Physical Therapy Practice enter a final order dismissing the Amended Administrative Complaint against Raymond Cralle. DONE AND ENTERED this 27th day of November, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 27th day of November, 2001. COPIES FURNISHED: Mary Denise O'Brien, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building Three Tallahassee, Florida 32308 Richard Willits, Esquire 2290 10th Avenue North, Suite 404 Lake Worth, Florida 33461 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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 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 This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(k), 458.331(1)(m), and 458.331(1)(n), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0059304. The Respondent is an experienced physician, having practiced medicine in several jurisdictions over a period of approximately 24 years. The Respondent is a native of Uruguay, where he studied medicine and graduated from medical school in 1974. English is the Respondent's second language. The Respondent began his private medical practice in the State of Florida in 1990. From January of 1992 until February 3, 1993, the Respondent treated patients C. P. and F. P.2 on several occasions. Patient C. P. was approximately 90 years old. His wife, patient F. P., was approximately 80 years old. At all times material, patients C. P. and F. P. were Medicare recipients. On January 12, 1993, the patient C. P. appeared at the Respondent's medical office for examination and treatment. On that day the patient C. P. had a number of complaints and concerns. The Respondent interviewed the patient, and obtained a history from the patient that included the fact that the patient had been hospitalized approximately six months earlier for injuries incurred in an automobile accident. The Respondent also examined the patient. Based on the examination of the patient and on the history obtained from the patient, the Respondent concluded that the patient C. P. needed to have some further testing of his heart rhythm. The Respondent ordered a series of tests which were to be performed with a portable Cardiotrace monitor. A total of five such tests were performed. One of the Cardiotrace tests was performed in the Respondent's office. The other four were performed at patient C. P.'s home by a technician employed by and trained by the Respondent. The Cardiotrace monitor equipment transmitted heart rhythm information by telephone line directly to equipment that prepared a tracing of the heart rhythm. A copy of the rhythm tracing was then transmitted to the Respondent by fax transmission. Five such rhythm tracings regarding the patient C. P. were received by the Respondent. The Respondent reviewed and interpreted each of the rhythm tracings. Subsequently, the Respondent billed Medicare for his review and interpretation of each of the five rhythm tracings regarding the patient C. P. The services for which the Respondent billed Medicare in this regard were services that were actually performed.3 Based on the examination of the patient and on the history obtained from the patient on January 12, 1993, the Respondent concluded that the patient C. P. also needed some physical therapy. The Respondent referred the patient C. P. for physical therapy services at the Respondent's medical office. The Respondent prepared a physical therapy plan for the patient C. P. The plan provided for the patient to initially receive physical therapy three days per week for three weeks. The plan also provided for the patient to receive six modalities of physical therapy on each treatment day. The Respondent billed Medicare for providing physical therapy to patient C. P. on January 12, 14, 16, 19, 21, 26, 28, and on February 1 and 3, 1993. For each of these physical therapy sessions, the Respondent billed Medicare for six modalities of physical therapy. These modalities included hot or cold pack therapy, therapeutic exercises for thirty minutes, functional activity therapy, ultrasound therapy, massage therapy, and kinetic therapy. The Respondent had two separate rooms in his office dedicated to and equipped for physical therapy. The Respondent had equipment in his physical therapy rooms for all six modalities of physical therapy ordered for the patient C. P. During the time when the Respondent was treating the patient C. P., it was the Respondent's practice to keep separate medical records and physical therapy records for patients who were receiving physical therapy at his medical office. The physical therapy records were kept on forms the Respondent had designed for that purpose. It was also the Respondent's practice at that time to keep the separate records in separate places. The Respondent has not been able to locate any records of any physical therapy services that were provided to the patient C. P. The Respondent's medical records for the patient C. P. contain only two references to the physical therapy. On January 12, 1993, there is a brief note to refer the patient to the physical therapy department. On February 3, 1993, there is a note to continue physical therapy. There are no other notes specifically referring to the status of or the justification for the physical therapy. Although the patient C. P. sustained injuries in a motor vehicle accident in July of 1992 which caused him to be hospitalized for several days, the Respondent's medical records contain no mention of that accident. The Respondent's records regarding his care and treatment of the patient C. P. are sufficient to justify the testing of the patient's heart rhythm, which was accomplished by means of the Cardiotrace portable monitor. The Respondent's records regarding his care and treatment of the patient C. P. are not sufficient to justify the physical therapy which was ordered by the Respondent.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Count One and Count Three of the Administrative Complaint on the basis of insufficient evidence, Concluding that the Respondent has violated section 458.331(1)(m), Florida Statutes, a charged in Count Two of the Administrative Complaint, by his failure to keep written medical records justifying the physical therapy for the patient C. P., and, Imposing a penalty for the violation of Section 458.331(1)(m), Florida Statutes, consisting of an administrative fine in the amount of $2,500.00 and a letter of reprimand. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 25th day of January, 1999.
The Issue Whether Respondent violated Subsection 486.125(1)(e), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of medicine pursuant to Chapters 20, 456, and 458, Florida Statutes. Mr. Westrope is, and was at all times material to this proceeding, a licensed physical therapy assistant in the State of Florida, having been issued license number PTA1170. Beginning in or about September 2004, D.D. was being provided physical therapy services through Girling Health Care, Incorporated (Girling). Girling contracted with Rehab Action, Incorporated (Rehab) to provide home health physical therapy to patients. Rehab contracted with Mr. Westrope to perform the physical therapy in the patients' homes. In or about September 2004, Mr. Westrope was assigned to provide physical therapy to D.D., who had undergone a complete knee replacement. D.D. had been assessed by Mr. Westrope’s supervising physical therapist, Gaspard de Laaf, on September 29, 2004, prior to Mr. Westrope beginning his physical therapy services on September 30, 2004. Mr. Westrope was required by Rehab to complete a visitation slip at the end of each physical therapy session. Mr. de Laaf had provided instruction to Mr. Westrope on how to complete the form. Mr. Westrope would send the completed form to Mr. de Laaf, who reviewed the form and sent it to Girling for reimbursement. When Mr. Westrope provided physical therapy to D.D., she would lie on her bed and perform therapy exercises, and then move into the kitchen where Mr. Westrope would measure the bend in her knee. When each session was over, Mr. Westrope would complete a visit slip for the treatment, and D.D. signed them to verify that she received the services. D.D. is visually impaired and can only see light. In order to sign the forms, D.D. requested Mr. Westrope to place the forms near the end of the kitchen table so that she could align her arm with the table edge so that her signature would be in a straight line. D.D. always signed her signature as "D.A.D." D.D. prided herself on her independence and did not allow anyone else to sign the visit slips for her. Mr. Westrope provided physical therapy services to D.D. on September 30 and October 1, 5, 6, 8, 12, 15, and 22, 2004. Mr. de Laaf evaluated D.D. and provided physical therapy services to her on October 25, 2004. Mr. Westrope provided services to D.D. on October 28, 2004. Mr. Westrope completed and submitted visit slip documentation for physical therapy treatment of D.D., which he claimed to have provided on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. However, Mr. Westrope did not provide services to D.D. on those dates. On or about November 3, 2004, D.D. contacted Girling complaining that she had not received physical therapy from Mr. Westrope in a while. On or about November 4, 2004, Mr. de Laaf was notified by Girling regarding the complaint it received from D.D. Mr. de Laaf then prohibited Mr. Westrope from seeing any Girling patients after Girling indicated that it did not want Mr. Westrope performing any of its services. Mr. de Laaf then resumed the treatment of D.D. On or about November 5, 2004, Tammy Hain, R.N., and Rob Hudson, O.T., who are supervisors employed by Girling, visited D.D. to verify that she had not been receiving physical therapy from Mr. Westrope on October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004. D.D. verified that she had not received services on those dates. D.D.'s daughter has been assisting D.D. with her financial transactions for 15 years and is familiar with D.D.'s signature. At the final hearing, D.D.'s daughter reviewed for the first time the visit slips submitted by Mr. Westrope for services to D.D. After reviewing the visit slips, D.D.'s daughter concluded that the signatures on the visit slips for October 16, 2004; October 18, 2004; October 20, 2004; October 30, 2004; and November 1, 2004, were not written by D.D. D.D.'s daughter verified that D.D. always uses her middle initial “A” when signing her signature. The signatures on the disputed dates do not contain D.D.'s middle initial and are different in appearance from the signatures on the visit slips on which Mr. Westrope documented services that he did provide to D.D. On five occasions during the time that Mr. Westrope was providing services to D.D., Robert Hudson also provided occupational therapy services to D.D. on five occasions. At the end of the therapy sessions with Mr. Hudson, D.D. signed the visit slips “D.A.D.” The parties stipulated that if Mr. Westrope did not provide the services to D.D. on the dates he indicated on the visit slips, then Mr. Westrope violated the rules of the Department and Subsection 486.125(1)(e), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Michael G. Westrope, P.T.A., violated Subsection 486.125(1)(e), Florida Statutes, and imposing a penalty of a $2,000 fine and a six-month suspension followed by one year of probation with the terms to be set by the Department at the conclusion of the suspension period and requiring Respondent to complete five hours of Continuing Education in physical therapy medical records documentation. DONE AND ENTERED this 7th day of April, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2006.
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
