The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On March 13, 2007, the Department issued Respondent license number MA 49800, which authorized her to practice massage therapy in the state of Florida. With the exception of the instant proceeding, Respondent's license has not been the subject of prior disciplinary action. Respondent's Training and Application for Licensure Respondent was born in China and, at all times relevant to this proceeding, was a citizen of China. Respondent ultimately immigrated to the United States (the record is silent as to the date) and, on July 6, 2007, enrolled at Royal Irvin College ("Royal Irvin"), an institution located in Monterey Park, California, that offered massage therapy instruction. Some five months later, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Subsequently, on February 26, 2007, Respondent passed the National Certification Examination for Therapeutic Massage and Bodywork. At or around that time, Respondent relocated to south Florida in pursuit of employment as a massage therapist. From what can be gleaned from the record, it seems that the owner of a massage studio, Ming Goa, informed Respondent that she required a Florida license to be eligible for hire. Owing to the fact that Royal Irvin was not a Board-approved massage school, Respondent needed to complete a course of study at an approved institution or, alternatively, an apprenticeship program. On or about March 5, 2007, and at the apparent suggestion of Mr. Goa, Respondent traveled to the Fort Lauderdale campus of the Florida College of Natural Health ("FCNH"), a Board-approved massage school. On that occasion, Respondent met with FCNH's registrar, Glenda Johnson, to discuss the steps necessary to obtain a Florida license. The particulars of Respondent's dealings with Ms. Johnson and Respondent's subsequent application for licensure are discussed shortly; first, though, a description of FCNH——and its responsibilities under Florida law——is in order. FCNH, an incorporated nonpublic postsecondary educational entity, holds a license by means of accreditation that authorizes its operation in Florida as an independent college. The Florida Commission for Independent Education ("CIE"), which regulates nonpublic postsecondary institutions, issued the necessary license to FCNH pursuant to section 1005.32, Florida Statutes (2012).3/ In addition to being duly licensed by the state, FCNH is accredited by the Accrediting Commission of Career Schools and Colleges and by the Commission on Massage Therapy. Finally, FCNH is a "Board- approved massage school" within the meaning of that term as defined in section 480.033, Florida Statutes. At the times relevant to this proceeding, the minimum requirements for becoming and remaining a Board-approved massage school were set forth in Florida Administrative Code Rule 64B7- (Aug. 16, 1998), which provided in relevant part as follows: In order to receive and maintain Board of Massage Therapy approval, a massage school, and any satellite location of a previously approved school, must: Meet the requirements of and be licensed by the Department of Education pursuant to Chapter 1005, F.S., or the equivalent licensing authority of another state or county, or be within the public school system of the State of Florida; and Offer a course of study that includes, at a minimum, the 500 classroom hours listed below . . . . Apply directly to the Board of Massage Therapy and provide the following information: Sample transcript and diploma; Copy of curriculum, catalog or other course descriptions; Faculty credentials; and Proof of licensure by the Department of Education. (emphasis added). As an institution holding a license by means of accreditation, FCNH must comply with the fair consumer practices prescribed in section 1005.04 and in the rules of the CIE.4/ Regarding these required practices, section 1005.04, Florida Statutes (2007), provided during the relevant time frame as follows: Every institution that is under the jurisdiction of the commission or is exempt from the jurisdiction or purview of the commission pursuant to s. 1005.06(1)(c) or (f) and that either directly or indirectly solicits for enrollment any student shall: Disclose to each prospective student a statement of the purpose of such institution, its educational programs and curricula, a description of its physical facilities, its status regarding licensure, its fee schedule and policies regarding retaining student fees if a student withdraws, and a statement regarding the transferability of credits to and from other institutions. The institution shall make the required disclosures in writing at least 1 week prior to enrollment or collection of any tuition from the prospective student. The required disclosures may be made in the institution's current catalog; Use a reliable method to assess, before accepting a student into a program, the student's ability to complete successfully the course of study for which he or she has applied; Inform each student accurately about financial assistance and obligations for repayment of loans; describe any employment placement services provided and the limitations thereof; and refrain from promising or implying guaranteed placement, market availability, or salary amounts; Provide to prospective and enrolled students accurate information regarding the relationship of its programs to state licensure requirements for practicing related occupations and professions in Florida; * * * In addition, institutions that are required to be licensed by the commission shall disclose to prospective students that additional information regarding the institution may be obtained by contacting the Commission for Independent Education, Department of Education, Tallahassee. (emphasis added). At the time of the events giving rise to this proceeding, the CIE's rule relating to fair consumer practices provided in relevant part as follows: This rule implements the provisions of Sections 1005.04 and 1005.34, F.S., and establishes the regulations and standards of the Commission relative to fair consumer practices and the operation of independent postsecondary education institutions in Florida. This rule applies to those institutions as specified in Section 1005.04(1), F.S. All such institutions and locations shall demonstrate compliance with fair consumer practices. * * * (6) Each prospective student shall be provided a written copy, or shall have access to an electronic copy, of the institution's catalog prior to enrollment or the collection of any tuition, fees or other charges. The catalog shall contain the following required disclosures, and catalogs of licensed institutions must also contain the information required in subsections 6E- 2.004(11) and (12), F.A.C.: * * * (f) Transferability of credits: The institution shall disclose information to the student regarding transferability of credits to other institutions and from other institutions. The institution shall disclose that transferability of credit is at the discretion of the accepting institution, and that it is the student's responsibility to confirm whether or not credits will be accepted by another institution of the student's choice. . . . No representation shall be made by a licensed institution that its credits can be transferred to another specific institution, unless the institution has a current, valid articulation agreement on file. * * * (11) An institution is responsible for ensuring compliance with this rule by any person or company contracted with or employed by the institution to act on its behalf in matters of advertising, recruiting, or otherwise making representations which may be accessed by prospective students, whether verbally, electronically, or by other means of communication. Fla. Admin. Code R. 6E-1.0032 (July 23, 2007)(emphasis added). As a duly-licensed, accredited, Board-approved massage school, FCNH was, at all relevant times, authorized to evaluate the transferability of credits to FCNH from other massage schools, so that credits earned elsewhere (including from schools that were not Board-approved) could be applied toward the award of a diploma from FCNH. In making such an evaluation, FCNH was obligated to follow the standards for transfer of credit that the Board had established by rule.5/ Further, when exercising its discretion to accept transfer credits, FCNH was required to complete, sign, and attach to the student's transcript the Board's Transfer of Credit Form, by which the school's dean or registrar certified that the student's previously-earned credits, to the extent specified, were acceptable in lieu of the student's taking courses at FCNH. Returning to the events at hand, Respondent met with Ms. Johnson, FCNH's registrar, on March 5, 2007. Notably, it has not been shown that Ms. Johnson lacked the authority to create official diplomas and transcripts on behalf of FCNH; on the contrary, the greater weight of the evidence establishes that Ms. Johnson possessed the actual authority, on that date and at all relevant times, to generate such records.6/ The meeting, which took place on a weekday during normal business hours, was held in Ms. Johnson's office——located on the first floor of a multi-story building on FCNH's Fort Lauderdale campus. Upon Respondent's arrival (at the main entrance), a receptionist summoned Ms. Johnson, who, a few minutes later, appeared in the lobby and escorted Respondent to her office. During the meeting that ensued, Respondent advised Ms. Johnson (with her limited English skills) that she was a recent graduate of Royal Irvin and that she wished to obtain licensure in Florida as a massage therapist. Ms. Johnson immediately telephoned Royal Irvin, spoke with an employee of that institution, and requested that Respondent's records be faxed to FCNH. It appears that the Royal Irvin records were furnished a short time later, at which point Ms. Johnson informed Respondent, erroneously, that her existing coursework was sufficient for licensure and that she could simply transfer her previously-earned credits to FCNH. All Respondent needed to do, Ms. Johnson incorrectly explained, was study FCNH-prepared materials concerning the Florida rules and statutes relevant to massage therapy. Significantly, Ms. Johnson also informed Respondent——again, incorrectly——that her Royal Irvin credits satisfied the requirement that a Florida applicant complete two hours of board-approved coursework relating to the prevention of medical errors.7/ As their March 5, 2007, meeting wound to a close, Ms. Johnson escorted Respondent to FCNH's library, which was located on the second floor of the same building. Respondent examined the materials that had been provided to her until roughly 5:00 p.m., at which time Ms. Johnson advised her to return the following morning "to study for another day." Ms. Johnson also instructed Respondent bring funds to cover the licensure application fee and FCNH's tuition. As instructed, Respondent returned the next morning to FCNH's library, where she continued her studies until mid-to late-afternoon. At that point, Ms. Johnson had Respondent sign an application for a Florida massage therapy license, wherein Respondent truthfully disclosed, among other things, that she had completed 500 hours of study at Royal Irvin; that Royal Irvin was not approved by the Board; and that she had not attended an apprenticeship program. Upon her collection of the license application fee (as well as "tuition" for FCNH——more on this in a moment), Ms. Johnson furnished Respondent with a portfolio that contained several items, including an FCNH document titled "Certificate of Completion – Therapeutic Massage Training Program (Transfer of Licensure)" that bore Ms. Johnson's signature. In the days that followed, Ms. Johnson furnished Respondent's application for licensure to the Department. The application was accompanied by various supporting documents, which included: the "Certificate of Completion" identified in the preceding paragraph of this Order; a "Transfer of Credit Form" signed by Ms. Johnson, which indicates that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included two credit hours involving the prevention of medical errors and three credit hours relating to HIV/AIDS; an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's transcript from Royal Irvin; and a copy of Respondent's national certification as a massage therapist. Subsequently, on March 13, 2007, the Department notified Respondent that her application had been granted and that she would be mailed her license in four to six weeks. Six weeks came and went without a license, at which point Respondent contacted the Department and learned that certain documentation was missing. Unsure of what records the Department still required, Respondent contacted Ms. Johnson, who, in turn, furnished the Department with an FCNH document titled "Certificate of Completion – 2 Hours of Prevention of Medical Errors." This certificate bore FCNH's seal, as well as Ms. Johnson's signature. Collectively, the credit transfer form, the FCNH certificates, and the FCNH transcript "signify satisfactory completion of the requirements of an educational or career program of study or training or course of study" and constitute a "diploma" within the meaning of that term as defined in section 1005.02(8), Florida Statutes. (These documents, which Respondent's FCNH diploma comprises, will be referred to hereafter, collectively, as the "Diploma.") Although the Department seeks to characterize the issuance of Respondent's license as a "mistake" on its part, such a contention is refuted by the final hearing testimony of Anthony Jusevitch, the executive director of the Board. Mr. Jusevitch testified, credibly, that Respondent's application materials contained no facial irregularities or flaws that would have justified a denial: Q. Okay. Now, based on both your experience, and your review of this application file, is there anything in that application file that you would see that would be an apparent error or omission in this file? A. No, there's nothing in this file that's an apparent error or omission. Final Hearing Transcript, p. 20. Subsequent Events In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, an FCNH managerial employee, to report that the NCB had received a number of applications to sit for the National Certification Examination (which the NCB administers) from FCNH graduates whose transcripts seemed irregular. What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin, and that the same member of FCNH's administration——i.e., Ms. Johnson——had accepted their transfer credits. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected some anomalies in them. She was unable to find records in the school's files confirming that the putative graduates in question had been enrolled as students. Ms. Wade confronted Ms. Johnson, who admitted that she had created and signed the problematic certificates, but denied——untruthfully, at least with respect to her dealings with Respondent——ever having taken money for doing so. (Ms. Johnson provided the rather dubious explanation that she had been merely trying to "help" people.) Ms. Johnson's employment with FCNH was terminated a short time later. Thereafter, Ms. Wade notified the Department that some of FCNH's diplomates might not have fulfilled the requirements for graduation. This caused the Department to launch an investigation, with which FCNH cooperated. The investigation uncovered approximately 220 graduates, including Respondent, whose credentials FCNH could not confirm. At present, Respondent has neither surrendered her Diploma, nor has she otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although the evidence demonstrates that Ms. Johnson should not have awarded Respondent an FCNH Diploma (because, among other reasons, Respondent had not completed two hours of board- approved coursework in the area of medical error prevention), there is no evidence that FCNH has initiated a legal proceeding to revoke or withdraw Respondent's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Respondent is without rights and privileges thereunder. Further, and just as important, it has not been shown that Respondent provided Ms. Johnson (or any other FCNH employee) with false information, nor does the evidence support a finding that Respondent knew or should have known that Ms. Johnson's issuance of the Diploma was anything but routine and in accordance with FCNH's academic policies. Under the circumstances, it was entirely reasonable for Respondent to rely upon Ms. Johnson's representations, as Respondent was entitled under the law to receive accurate information from FCNH concerning, among other things, the transferability of credits to FCNH, as well as the relationship between FCNH's academic program and the state's licensure requirements for massage therapists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 6th day of August, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2013.
