The Issue The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
Findings Of Fact 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 The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether the 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 At all times relevant hereto Respondent was licensed as a physical therapist assistant in Florida. He has held a physical therapist assistant license for approximately 18 years and worked approximately five and one-half years as an orthotec. In June 1985, Respondent was employed by Southeast Rehabilitation Services (Southeast) as a physical therapist assistant. On or about June 3, 1985, a patient had been transferred to Southeast with one knee immobilized. The physician's order transferring the patient to Southeast directed the immobilizer be removed. When Respondent provided treatment to the patient, he removed the immobilizer without first having received written instructions from the physical therapist to do so. On or about June 11, 1985, Respondent provided treatment to a patient at Southeast which consisted of strengthening exercises using small weights, when the physical therapist orders called only for range of motion exercises without weights. Respondent had been working at Southeast only a short while and had been taken on rounds by another physical therapist assistant. When Respondent gave treatment to this patient on his own, he couldn't locate the patient's chart and relied on his memory to provide treatment. He thought he remembered the other physical assistant gave this patient strengthening exercise, but this was incorrect. Respondent readily acknowledged committing the violations alleged, but contended the June 11 incident was a simple mistake and that he had followed physician's orders at other physical therapy centers at which he had worked, without waiting for written orders from the physical therapist.
The Issue Whether Tina Pate violated Subsection 486.125(1)(b), Florida Statutes, by committing deceit in obtaining a license as a physical therapist, and, if so, what penalty should be imposed; and whether Tina Pate violated Subsection 455.624(1)(w), Florida Statutes, for failing to report to the Board of Physical Therapy her conviction of aggravated child abuse, and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony of Pate and the evidence submitted, the following findings of fact are made: At all times material, Pate held a license as a Physical Therapist in the State of Florida. The Department of Health, through the Board of Physical Therapy Practice, is the state agency that licenses and has regulatory jurisdiction of physical therapists. As authorized by Florida Statutes, AHCA performs investigative and prosecutorial services for the Department of Health. Pate pled nolo contendere to a charge of aggravated child abuse in 1979. Aggravated child abuse is a felony (AHCA Exhibit 2). Pate applied for a physical therapy license on August 1, 1996. The license application contained, among other things, the following question: "12. Have you ever been convicted or found guilty of a felony, regardless of adjudication? (A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges)." Pate answered "No" to this question. Pate testified that she was advised and that she believed that having successfully completed three years of probation that her record would be expunged. She further testified that because she found Question 12 and another question on the application regarding criminal convictions confusing, she sought legal counsel prior to answering the questions and answered the question as counseled. In this particular factual situation, based on the nature of the felony, the text of the question, the counsel she received, and her mistaken belief that the record of criminal conviction had been expunged, Pate's incorrect answer to Question 12 was not deceitful. Late in 1998, Pate discovered, as a result of an investigation by a prospective employer, that the 1979 nolo contendere plea was still a matter of public record. On February 15, 1999, Pate applied to AHCA for an exemption hearing. Subsection 400.215(4)(b), Florida Statutes, states: (b) As provided in s. 435.07 the appropriate regulatory board within the Department of Health, or that department itself when there is no board, may grant an exemption from disqualification to an employee or prospective employee who is subject to this section and who has received a professional license or certification from the Department of Health or a regulatory board within that department. Subsection 435.07(1), Florida Statutes, states: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: (a) Felonies committed more than 3 years prior to the date of disqualification; In response to Pate's request for exemption hearing, Mr. Joe Baker, Acting Bureau Chief, Heath Care Practitioner Regulation, by letter dated February 24, 1999, granted her request stating, "an exemption from disqualification for the above disqualifying offense(s) is granted." Subsection 456.072(1)(w), Florida Statutes, states: The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: * * * (w) Failing to report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. Convictions, findings, adjudications, and pleas entered into prior to the enactment of this paragraph must be reported in writing to the board, or department if there is no board, on or before October 1, 1999. While she was preparing her request for exemption hearing, Pate had telephone conversations at the Board of Health with an individual she identified as Kay Howerton, who Pate believed had reviewed her request for exemption hearing. Pate's request for exemption hearing contains specific reference to her plea of nolo contendere to the November 3, 1978, Pasco County, Florida, charge of aggravated child abuse. It is not unreasonable for a lay person, having made an application to AHCA for an exemption from licensure disqualification for having pled nolo contendere to aggravated child abuse, and having received a letter from the Board of Health granting her the exemption, to believe that she had reported her plea of nolo contendere to the Board in writing as required by Subsection 456.072(1)(w), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Physical Therapy Practice, find Tina Pate not guilty of having violated Subsections 486.12(1)(b) and 455.624(1)(w), Florida Statutes, and dismiss the Administrative Complaint filed against her. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 9th day of March, 2001. COPIES FURNISHED: Herbert Allen, Jr., Esquire 2000 Highway A1A, 2nd Floor Indian Harbour Beach, Florida 32937-3525 Mary Denise O'Brien, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
