The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
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 for determination in this proceeding is whether Respondent's award of a contract pursuant to a request for proposal was arbitrary, capricious, or beyond the scope of Respondent's discretion.
Findings Of Fact Respondent, like other public school systems in Florida, is required to provide therapy services for students in need of such services. The demand for therapy services far exceeds the available therapists. The shortage of therapists is expected to worsen in the foreseeable future. Respondent historically has been unable to obtain a sufficient number of therapists by direct hire. Respondent has relied on contract services to obtain therapists. Such contract services have been provided by Professional Health Care Services ("Professional"), Cross Country Health Care ("Cross Country"), and Petitioner. In November, 1992, Petitioner was awarded a contract to provide occupational and physical therapy services for the remainder of the 1992-1993 school year. Petitioner provided the number of therapists required by Respondent in a timely manner. Virtually all of the therapists provided by Petitioner during the 1992- 1993 school year were foreign nationals. Some of the therapists had inadequate written and verbal communication skills in the English language. The lack of such communication skills created problems for the faculty, staff, and students, and was the subject of complaints by some parents. Some of the therapists provided by Petitioner during the 1992-1993 school year had no transportation to travel from school to school to perform their regular duties. Respondent determined that the supervision provided by Petitioner was inadequate in light of the communication and transportation problems peculiar to some of the foreign nationals Petitioner provided as therapists. When competent therapists are provided through contract services, Respondent typically attempts to hire such therapists as full time employees in the school system. Provisions in the contract between Petitioner and the therapists provided by Petitioner make it economically impractical for Respondent to hire competent therapists provided by Petitioner. The contract prohibits a therapist from competing with Petitioner (the "non- compete clause") and, alternatively, requires that Petitioner be reimbursed for costs incurred in obtaining the therapist's work permit and temporary license and requires that Petitioner be compensated based on a percentage of an individual therapist's salary. Neither the therapist nor Respondent typically have the funds necessary to make such payments in lieu of the non-compete clause. Petitioner does not permit Respondent to evaluate the therapists provided by Petitioner prior to accepting the therapists. Respondent has no opportunity to interview a therapist and make an independent determination of the therapist's communication skills or means of transportation. For the 1993-1994 school year, Respondent issued a request for proposals to provide 11 occupational therapists and 10 physical therapists who were permanently licensed or, alternatively, a combination of therapists and therapist assistants. The request for proposal was issued to approximately 85 providers. The only providers that responded were Petitioner, Cross Country, and Professional. Each company that submitted a proposal had a prior business history with Respondent. Respondent is familiar with the management personnel of each company. The successful proposal was selected based on three categories of information provided in each proposal. The categories were: therapist or agency qualifications; scope of services; and cost of services. Each responsive company was required to provide information in regard to: the company itself; the availability of therapists, their license status, and their supervision; the costs to Respondent; and the ability of Respondent to recruit the therapists provided by the company. Representatives from each of the three companies that submitted proposals were invited to be interviewed concerning their company's respective proposal. Each representative was interviewed by members of Respondent's administrative staff including Ms. Sue Hays, Supervisor of Occupational and Physical Therapy, Ms. Liz Argott, Director of Exceptional Student Education, Ms. Myrna Robinson, General Director of Special Instructional Services, Mr. Bill Borrer, Supervisor of Purchasing, and Ms. Mary Gillette, Director of Physical/Mental Health and Social Services. Each representative was asked questions that were applicable to all three companies as well as questions that were unique to the specific proposal of each company. The three main issues discussed with Petitioner concerned communication problems posed by foreign nationals, temporary licensing, and adequate supervision. Respondent had previously advised Petitioner to pursue its proposal even though Petitioner represented that virtually all of its therapists would be temporarily licensed. At the interview following the submission of proposals, however, Petitioner notified Respondent that Petitioner would agree to be a secondary vendor only if Petitioner had a minimum of 10 therapists working for the School Board. At the conclusion of the interviews, each of the companies submitting proposals was awarded a numerical score. Cross Country received a score of 410 points. Professional received a score of 331 points. Petitioner received a score of 296 points. Petitioner scored lowest among the three companies that submitted proposals. Cross Country recruits approximately 80 percent of its therapists within the United States. Cross Country provides transportation and housing for its therapists. Both Cross Country and Professional provide permanently licensed therapists. Petitioner's proposal was not the lowest in cost. Petitioner would have charged an additional $1.80 per hour for each therapist in order to provide the supervision required under the circumstances. Moreover, the difference between Petitioner's actual score and a perfect score of 30 for cost of services would not be sufficient to raise Petitioner's score by the amount needed to give Petitioner the second highest score. The matter was submitted to Respondent on July 20, 1993. The contract for primary vendor was awarded to Cross Country and the contract for secondary vendor was awarded to Professional. Respondent's decision was reasonable under the circumstances and was not arbitrary and capricious. Cross Country was the lowest and best proposal. Respondent followed its specifications in the request for proposals and properly utilized the evaluation system prescribed in the request for proposals. Petitioner would have provided temporarily licensed therapists in violation of the specifications in the request for proposals. Respondent did not implicitly waive the express requirement for permanently licensed therapist when Respondent advised Petitioner to pursue its proposal. The request for proposal also sought proposals for assistant therapists which Petitioner was willing to recruit. Even if Respondent was willing to accept temporarily licensed therapists from a secondary vendor, Respondent did not learn until the interview with Petitioner that Petitioner was unwilling to function as a secondary vendor unless Petitioner had a minimum of 10 therapists employed by Respondent. Respondent had a legitimate concern over the ability of therapists provided by Petitioner to communicate verbally and in writing in the English language. While the parties to this proceeding dispute the significance of that issue, Respondent would not have the right to interview prospective therapists and make an independent determination of the ability of the therapist to communicate at a level necessary to provide effective services in the school system. For the same reason, Respondent had no way to make an independent determination of whether a prospective therapist had adequate transportation to perform the services required by Respondent. Respondent historically has been unable to obtain a sufficient number of therapists through direct hires. Respondent was effectively precluded by the terms of the contract between Petitioner and the individual therapists from hiring competent therapists in permanent positions within the school system. The demand for therapy services far exceeds the supply of therapists. The shortage of therapists is expected to worsen in the foreseeable future. The ability to hire competent therapists as permanent members of the staff is a reasonable and legitimate factor for Respondent to consider in determining the highest and best proposal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's written formal protest. RECOMMENDED this 29th day of September, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4486BID Petitioner's Proposed Findings Of Fact. 1.-3. Irrelevant and immaterial 4.-11. Accepted in substance Rejected as inconsistent with credible and persuasive evidence Accepted in substance Irrelevant and immaterial 15.-18. Accepted in substance Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence 21.-22. Accepted in substance 23.-27. Irrelevant an immaterial Accepted in substance Rejected as inconsistent with credible and persuasive evidence 30.-31. Accepted in substance 32. Rejected for lack of credible and persuasive evidence 33.-35. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance 38.-41. Rejected as inconsistent with credible and persuasive evidence 42. Irrelevant and immaterial 43.-44. Accepted in substance 45.-46. Rejected as inconsistent with credible and persuasive evidence 47.-48. Irrelevant and immaterial 49. Rejected as inconsistent with credible and persuasive evidence 50.-51. Irrelevant and immaterial Rejected as inconsistent with credible and persuasive evidence Accepted in substance, but credible and persuasive evidence showed that particular therapists who were foreign trained in fact caused some problems for Respondent Rejected as inconsistent with credible and persuasive evidence Rejected as inconsistent with credible and persuasive evidence Accepted in substance Respondents' Proposed Findings Of Fact. Accepted as part of preliminary statement Irrelevant and immaterial Rejected as recited testimony 4.-9. Accepted in substance 10.-15. Rejected as recited testimony Accepted in substance Rejected as recited testimony COPIES FURNISHED: Dr. Walter L. Sickles, Superintendent School Board of Hillsborough County Post Office Box 3408 Tampa, Florida 33601-3408 M. Teresa Harris, Esquire Post Office Box 90 St. Petersburg, Florida 33731 W. Crosby Few, Esquire Few & Ayala 109 North Bush Street, Suite 202 Tampa, Florida 33602 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida Sydney H. McKenzie General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 007919. Respondent is an orthopedic surgeon, practicing in Hallandale, Florida. Respondent first met N. L. on March 6, 1985, when she came to him for treatment of injuries which she received in a motor vehicle accident on March 2, 1985. N. L. began receiving physical therapy in Respondent's office and was examined by Respondent on a regular basis. The primary medication given to N. L. by Respondent was B-12 IM. On a number of occasions, Respondent gave N. L. a prescription for valium (Diazepam). Diazepam is a Schedule IV controlled substance as defined by Chapter 893, Florida Statutes. Respondent made a notation in N. L.'s records whenever he gave her a prescription for medication and whenever he gave her a sample of medication which he had received from manufacturers' representatives. Although subsequently released from active treatment, N. L. continued to return to Respondent's office for treatment and therapy due to continued complaints and due to episodes of exacerbation of the injuries which she had previously received. Respondent saw N. L. as a patient for the last time on February 20, 1987. Respondent gave her no prescriptions for valium subsequent to that date. Thereafter, Respondent did see N. L. socially. She was a friend of his children and dated one of his sons. She was a guest in Respondent's home on a number of occasions. On occasion, she accompanied his sons when they came to Respondent's office. On several occasions, she flew with Respondent in his airplane. N. L. was never drunk or "stoned" when she was in Respondent's presence. Respondent never saw any evidence that N. L. was an alcohol and/or drug abuser. On or about July 25, 1989, N. L. died as a result of a car accident. Some Diazepam was found in her blood at the time of her death. Her blood also revealed a high alcohol content. Respondent kept his blank prescription pads in more than one location in his office. He kept some in his desk and kept some in a cabinet in the hallway across from the examining rooms. According to the records of Eckerd Drug Store, on May 18, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled in increments on May 18 and May 19 by the pharmacists working at Eckerd. According to the records of Eckerd Drug Store, on June 13, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled on June 13, 1989, was refilled on June 27, 1989, and was refilled on July 18, 1989, by the pharmacists working at Eckerd. Although the signature on the two prescriptions described above is similar to Respondent's, Respondent did not sign or issue those prescriptions to N. L. C. F. is a 28-year-old female who slipped and fell in her apartment on August 23, 1989. She sought medical treatment immediately following her fall. She then retained an attorney to represent her in the civil litigation she would be filing as a result of her fall, and that attorney referred her to Respondent for treatment and physical therapy. Respondent's first contact with C. F. occurred on her first visit to his office on August 31, 1989. At that time, Respondent performed a full physical examination on C. F. and started her on a course of physical therapy. It was not Respondent's practice to see each patient every time that patient came in for physical therapy. Rather, Respondent would see such patients once a week, either in the physical therapy room or in one of his examining rooms. On November 2, 1989, Respondent saw C. F. in the therapy room. C. F. listed her complaints, and Respondent examined her and dictated notes for her medical chart. C. F. asked Respondent if she could talk to him in a different room. She was placed in one of the examining rooms. When Respondent came into the examining room, C. F. asked if the door could be closed and if it could be secured. Respondent then closed the sliding door to the examining room, securing it with a pin. C. F. then told Respondent that she was "very good at giving head." Respondent replied that that was nice but he was busy. C. F. continued to joke and was laughing when she left the examining room. Thinking it insignificant, Respondent gave no further thought to the banter which had taken place. As C. F. left the office, she stopped at the front desk and made an appointment for a physical therapy treatment the following week. On November 7, 1989, C. F. arrived for her scheduled physical therapy treatment. She was not scheduled to see Respondent on that date. While C. F. was lying on the traction table, she asked the physical therapist if Respondent were in the office that day. The therapist responded that he was and asked if C. F. needed to speak to him. At first, C. F. said she did not need to see Respondent, but she later became insistent that Respondent see her. By the end of C. F.'s therapy session, C. F. was demanding that she be seen by Respondent, taking the position that she would not leave without seeing him even if that meant that she had to wait all day. The therapist told Respondent that C. F. was demanding to see him, and Respondent told the therapist to put C. F. in an examining room. Respondent then became busy, and the therapist did not have an opportunity to tell Respondent that C. F. was acting "a little eerie." C. F. was taken to an examining room. She waited for approximately an hour before Respondent was able to see her. When Respondent entered the examining room, C. F. asked him to close the door and motioned to him to lock it by putting the locking pin in place. Respondent closed the door and inserted the pin. C. F. walked over to Respondent, abruptly opened his belt, opened his pants, pulled his pants down, pulled down his underwear, pulled up his shirt, and told Respondent to "hold this," referring to his penis. C. F. then told Respondent that she had to get a napkin. She turned, took two steps toward her pocketbook, reached in, pulled out a camera, and instantly shot two pictures of Respondent. She then ran to the door shouting for her husband whom she had brought with her to her therapy session on that day. Respondent reached for her pocketbook, but C. F. pulled the pin out of the door, opened the door, and ran out still loudly calling her husband's name. C. F. and Respondent were alone in the examining room for no more than two minutes. By this time, her husband Patrick had entered the examining room area, where he immediately attacked the x-ray technician, placing his hands around the x-ray technician's throat and attempting to strangle him. C. F. told her husband he had gotten the wrong doctor, and Patrick then ran to Respondent and placed a stranglehold on him. C. F. and Patrick left Respondent's office, stopped by the gas station where C. F. worked, and then went to the Hallandale police station. Within 24 hours from the time that C. F. seduced Respondent in his office, she had contacted the attorney representing her in her "slip and fall" lawsuit regarding his filing an action against Respondent, had had a "falling out" with that attorney over him representing her, had hired a different attorney to file a lawsuit against Respondent, had been referred by that second attorney to a third attorney who would represent her along with the second attorney in suing Respondent, had been interviewed by a local television station at the office of one of her new attorneys, her interview and the interview with her new attorneys had been shown on both the early evening and the late evening news, and contact had been made between C. F.'s new attorneys and Respondent's attorney regarding C. F.'s demand for money from Respondent. No civil suit was ever filed by C. F. against Respondent. Numerous contacts took place between C. F.'s attorneys and Respondent's attorney. Additionally, C. F.'s attorneys contacted the Department's investigator a number of times attempting to obtain confidential information from the investigator to be used in C. F.'s claim against Respondent. Over the next several months, C. F.'s attorneys continued to demand money from Respondent and threatened Respondent with additional publicity. In the face of C. F.'s threats of expanded publicity against Respondent, a settlement was entered into in February of 1990. Under the terms of that settlement, C. F. received a cash payment from Respondent's medical malpractice carrier with an "extremely nominal" contribution from Respondent. Respondent was immediately devastated by his encounter with C. F. on November 7, 1989. He walked down the hallway in his office building and made an appointment to see Dr. Burton Cahn, a psychiatrist practicing in that building. He was not able to see Dr. Cahn until November 9, 1989. Dr. Cahn began treating Respondent for his depression, seeing Respondent at first twice a week and then once a week. Respondent was still seeing Dr. Cahn regularly at the time of the final hearing in this cause. Respondent voluntarily ceased practicing medicine on November 9, 1989, to avoid the possibility that the problems with C. F. would distract him from providing good quality medical care. He resumed his office practice on March 7, 1990, with Dr. Cahn's full approval and following Dr. Cahn's suggestion that Respondent never see a female patient without another female in the room. Respondent had ceased performing hospital surgical procedures by approximately August of 1989, two months before the incident with C. F., since he was not doing much surgery in a hospital setting and had someone else in his office who was performing hospital surgical procedures. When he resumed his office practice on March 7, 1990, Respondent did not resume performing hospital surgical procedures since he thought he might be "too rusty". Respondent is able to practice orthopedic surgery. He does not represent a danger to himself or to the people in the community. A further suspension of Respondent from his practice would be of no benefit to him or to the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty and dismissing the Amended Administrative Complaint filed against him. DONE and ENTERED this 18th day of October, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1565 Petitioner's proposed findings of fact numbered 1-4, 6-9, 22, 28, and 31 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 10, 13-18, 23, and 24 have been rejected as being subordinate to the issues under consideration herein. Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 25, 26, 29, 30, and 35 have been rejected as not being supported by the weight of the credible and/or competent evidence in this cause. Petitioner's proposed findings of fact numbered 19, 27, and 36-41 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 32-34 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's four unnumbered paragraphs contained in the Findings of Fact section of his post hearing Report and Recommendation of Referee have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Bogenschutz, Esquire 633 Southeast Third Avenue Fort Lauderdale, Florida 33301
Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
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. /
