The Issue The issue to be determined is whether Respondent violated sections 456.072(1)(h), 456.072(1)(w), and 480.041(1)(b), Florida Statutes (2010), as alleged in the Amended Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43 and chapters 456 and 480, Florida Statutes (2013). At all times relevant to the Amended Administrative Complaint, Respondent has been a licensed massage therapist in the State of Florida, having been issued license number MA 63711. Respondent is a native of China, and immigrated to the United States in approximately 2007. She speaks limited English. Respondent wanted to become a massage therapist. To that end, Respondent attended the massage therapy training program offered at Healing Hands Institute for Massage Therapy (Healing Hands) and completed her training program on or about October 17, 2010. The program at Healing Hands consisted of a 600-hour curriculum. At all times relevant to the allegations in the Amended Administrative Complaint, Healing Hands was a school accredited by the Commission on Massage Therapy Accreditation (COMPTA) and approved by the New Jersey Board of Massage Therapy. It was not, however, a Florida board-approved school for purposes of obtaining licensure in Florida. After Respondent’s attendance at Healing Hands, the school closed in good standing with COMPTA. Healing Hands had campuses in Flushing, New York, as well as in New Jersey. Respondent completed most of her course work at the Flushing campus because there were people there who spoke Chinese, making it easier for her to understand the curriculum. While still a student at Healing Hands, Respondent took and passed the National Certification Examination for Therapeutic Massage and Bodywork. She received notification that she had passed the examination by letter dated June 8, 2010. It is unclear from the letter whether it is actually dated June 8, 2010, or is referring to an examination given that date. In any event, after receiving notice that she had passed the necessary examination, Respondent applied for and received a license to practice massage therapy in the State of New Jersey. Her original license was issued February 24, 2011, and her current license in New Jersey is valid through November 30, 2014. Respondent received assistance in filling out the paperwork related to her New Jersey application from a friend named “Mike” who is a lawyer. Mike did not charge her for his assistance. According to Respondent, Mike completed the application forms for her and she reviewed them and signed them. There are no allegations in the Amended Administrative Complaint to indicate that her educational program at Healing Hands was not legitimate; that she did not take and pass the National examination; or that any actions taken to obtain her New Jersey license were fraudulent. Respondent was not required to provide any additional coursework or certifications beyond her Healing Hands transcript and proof of passing her national certification exam in order to obtain her New Jersey license. Respondent wished to move to Florida because she had heard that there are good jobs in massage therapy here. She knew that she would have to obtain a Florida license in order to work in Florida. To that end, she sought assistance from a person at Healing Hands that she identified as “Sean.” Although she referred to Sean as one of her instructors who taught the majority of her courses, there is no instructor listed on her transcript whose first name is identified as Sean. Although there is no direct evidence other than Respondent’s testimony regarding Sean, it seems more likely that, rather than being an instructor, Sean was an interpreter for the students who spoke Chinese. Respondent asked Sean to assist her with the process for getting a Florida license because other students had told her he had assisted them in obtaining licenses from other states. She paid Sean $1,000.00 to cover the cost of applying for her Florida license. Some of the money was paid in cash, and some was in the form of a money order. Respondent could not remember how much of the total was in money order form. The application fee and initial license fee are significantly less than $1,000. Respondent received her license to practice massage therapy in Florida on June 5, 2011. However, what actually happened between the time she asked Sean for help and when she got her license is unclear at best. On or about March 17, 2011, Respondent’s State of Florida application for licensure as a massage therapist was submitted to the Florida Department of Health, Board of Massage Therapy. The application was submitted electronically, and does not include Respondent’s signature. Respondent testified that she never filled out the application and never saw it before it was submitted to the Department of Health. While it is clear that Respondent did not personally submit the application, it is not clear who did. There is no competent evidence to demonstrate who completed the application and submitted it to the Board office. Respondent’s application indicated that she did not attend an apprenticeship program. It also indicates that, at the time of the application, she has never held a license or certificate, regardless of status, to practice any licensed profession; that she has not completed a 10-hour Florida laws and rules course; that she has not completed a two-hour course in the prevention of medical errors; and that she has not completed a three-hour HIV/AIDS course. On or about May 9, 2011, a transcript from the Florida College of Natural Health (FCNH) was submitted to the Department of Health in support of Respondent’s application. Also submitted were a Transfer of Credit Form and FCNH Certificates of Completion for 12 hours of Therapeutic Massage Training Program and two hours of Prevention of Medical Errors. Also submitted that day were a transcript from Healing Hands and a copy of the Official Candidate Score Report for the National Certification Examination for Therapeutic Massage and Bodywork, indicating that Respondent had achieved a passing grade. FCNH is an incorporated, nonpublic, post-secondary educational entity which holds a license issued by the Florida Commission for Independent Education, which regulates nonpublic post-secondary institutions pursuant to section 1005.32, Florida Statutes. FCNH is also accredited by the Accrediting Commission of approved schools and Colleges and by the Commission on Massage Therapy. FCNH is a board-approved massage school as that term is defined in section 480.033. In order to be a board-approved massage school, a school is required to offer a course of study that includes, at a minimum, 500 class hours, and is also required to supply to the Board as part of its application a sample transcript and diploma; a copy of curriculum, catalog or other course descriptions; faculty credentials; and proof of licensure by the Department of Education. Fla. Admin. Code Rule 64B7-32.003. As a licensed, accredited, and board-approved massage school, FCNH was and continues to be authorized to evaluate the transferability of credits from another institution to FCNH, including schools that are not board-approved. Any transferred credits could then be applied by FCNH toward the award of a diploma from FCNH, provided that FCNH adhered to the standards in rule 64B7-32.004, and completed, signed, and attached to the school’s transcript, the Board’s Transfer of Credit form, certifying the extent to which a student’s previously-earned credits were acceptable for transfer to FCNH. While the minimum number of class hours for licensure is 500 hours, the program at FCNH consists of 768 hours. At all times relevant to the allegations in the Amended Administrative Complaint, Glenda Johnson was FCNH’s registrar. Ms. Johnson had been employed by FCNH since 1996, and had the apparent authority to evaluate the transferability of credits from other educational institutions to FCNH, and to execute a Transfer of Credit Form certifying to the Board that a student’s credits earned at another institution would be acceptable to FCNH. The Transfer of Credit form stated that FCNH had evaluated Respondent’s transcript from Healing Hands and that the evaluation was conducted on April 18, 2011. The form indicated that Respondent needed ten hours of Florida laws and rules and two hours of medical errors instruction in order to qualify for licensure. The form, which was signed by Glenda Johnson as Registrar of FCNH, accepted a total of 488 hours from Healing Hands, including three hours for HIV/AIDS education. The FCNH transcript, signed by Glenda Johnson as registrar of FCNH, indicated completion of 500 program hours, including three hours for HIV/AID education as of April 22, 2011. It indicates completion of coursework regarding prevention of medical errors or Florida laws and rules. Like the transcript and the Transfer of Credit form, the certificates of completion for Therapeutic Massage Training Program (Transfer of Licensure) and for Prevention of Medical Errors were signed by Glenda Johnson. Respondent’s transcript from Healing Hands was also submitted with the documents received by the Board office on May 9, 2011. The transcript indicates that Respondent completed a 600-hour program at Healing Hands, including three hours for HIV/AIDS awareness. It appears that the documents submitted on May 9, 2011, were most likely submitted to the Board office by Glenda Johnson, as many of them are signed by her and appear to be documents from FCNH, where she worked. As registrar of the school, Ms. Johnson had the apparent authority to evaluate Respondent’s hours at Healing Hands for transfer, and that evaluation can be performed electronically. In other words, a student did not have to visit a FCNH campus in order for his or her prior credits to be evaluated for transfer. Neither Ms. Johnson nor Sean testified at hearing. Respondent testified that she never met Ms. Johnson and never set foot on any of FCNH’s campuses. While it was assumed at hearing that Sean conspired with Ms. Johnson to create false documents in order for Respondent to obtain a Florida license, there was no competent evidence from which such a finding can be made. There is no evidence from which it can be determined whether Sean was complicit in fraud or being duped by Ms. Johnson. The only finding that can be made based on the evidence presented is that someone submitted, on Respondent’s behalf, documents that indicate that sufficient credits were transferred from Healing Hands to FCNH, a board-approved school; completion of all required courses; successful completion of the national examination; and that those documents on their face were sufficient to demonstrate Respondent met the requirements for licensure. Melissa Wade is a managerial employee of FCNH. At some point after Respondent received her license, Ms. Wade received a telephone call from someone from the National Certification Board for Therapeutic Massage and Bodywork (NCB) to report that NCB had received several applications to sit for the national certification examination from purported FCNH graduates whose transcripts seemed irregular. Respondent was not among those individuals identified as having suspicious credentials, as she had taken the examination prior to any purported contact with FCNH. Ms. Wade reviewed the credentials for those applicants identified by NCB, and found several things in the documents that she considered to be suspicious. While these irregularities may have been red flags for Ms. Wade and those who routinely review transcripts, it is not clear that these irregularities would be apparent to a casual observer. However, the students for whom the transcripts and Transfer Forms were prepared were not found in FCNH’s records as actually being students of the school. Ms. Wade confronted Ms. Johnson regarding the irregular transcripts and certificates. Ms. Johnson was terminated by FCNH in December 2011. Ms. Wade notified the Board of Massage that some people who had applied for licensure as graduates of FCNH might not have met the requirements for graduation. The Department initiated an investigation, with which FCNH cooperated. This investigation uncovered approximately 200 graduates, including Respondent, whose credentials FCNH could not confirm. Although Ms. Wade reviewed Respondent’s documents that comprise Respondent’s application for licensure and testified that Ms. Johnson did not have the authority to evaluate the hours from Healing Hands for transfer to FCNH, she did not testify that the courses which were purportedly accepted for transfer would in fact be unacceptable. Anthony Jusevitch, Executive Director for the Board of Massage Therapy, testified that typically it is the school, as opposed to the applicant, that submits transcripts and certificates regarding completion of curriculum requirements. There was no credible, competent evidence to indicate exactly who decided to create the documents submitted to the Board of Massage on Respondent’s behalf, or that Respondent knew of or authorized their creation. What is clear, however, is that Respondent did not know of their creation or their submission to the Board office. Once Respondent was notified of the alleged deficiency in her credentials for her Florida license, she took two home- study courses through Life Education of Florida on the subjects of Medical Errors and HIV/AIDS, for two and three hours, respectively. She also took a Florida Laws and Rules course for 10 hours through Advanced Massage Techniques’ online program. The use of continuing education courses is valid for obtaining initial licensure. Respondent currently meets all of the requirements for licensure in the State of Florida. She continues to live in New Jersey. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, at the time her licensure application was processed by the Board staff, Respondent did not meet the requirements for licensure because she had not taken the required prevention of medical errors and Florida Laws and Rules courses.
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 dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 9th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of September, 2013.
The Issue The issues presented in this case are whether Respondent has violated the provisions of chapters 456 and 480, Florida Statutes, as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The following findings of fact are based on the testimony, evidence admitted at the formal hearing, and the agreed facts in the pre-hearing stipulation. The Department is the state agency charged with regulating the practice of massage therapy pursuant to section 20.43, Florida Statutes, and chapters 456 and 480. At all times material to the allegations in this case, Respondent was licensed to practice as a massage therapist in the State of Florida, having been issued license number MA 79509. At all times material to the allegations in this matter, Respondent was employed as a massage therapist at Daytona College, in Daytona Beach, Florida. Respondent’s address of record is 10 Spanish Pine Way, Ormond Beach, Florida 32174. S.W. is a licensed mental health counselor who has been licensed for approximately 22 years. She resides in Clermont, Florida, which is where she lived at the time of the massage. In July 2017, S.W. and C.W., her 23-year-old daughter, traveled to the Daytona Beach area to visit S.W.’s elderly mother. On July 19, 2017, S.W. and C.W. went to Daytona College, for the first time, for a massage. Upon arriving at the school, they were greeted by the receptionist. S.W. and C.W. were scheduled for 80-minute massages to take place at 3:30 p.m. However, the ladies arrived ten minutes late, so the massages began late. Upon arrival, the ladies were asked whether they needed to use the restroom, which they did. After using the restroom, the ladies were taken to the massage area for their services. S.W. selected the male massage therapist based on her past positive experiences with male therapists. S.W. had received a number of massages in the past, including massages by men. She allowed her daughter to be scheduled with the female massage therapist because she believed her daughter preferred a woman. S.W. was scheduled for a massage with Respondent, and C.W. was scheduled with Elizabeth Branson. Respondent escorted S.W. to the massage room first. Ms. Branson escorted C.W. to the room a few minutes later. As Respondent escorted S.W. to the massage room, S.W. described the areas in which she wanted special attention, including her neck, shoulders, scalp, and feet. Respondent asked S.W. whether she needed massage in the sciatic area. S.W. had problems in the sciatic area, so she consented to have the area massaged. The common room where massages occurred at Daytona College contained eight massage tables separated by curtains. Respondent took S.W. into the massage room and instructed her to undress to her comfort level. Respondent left the room while S.W. undressed down to her underwear. When Respondent reentered the room, S.W. was draped with a sheet. Respondent tucked the drape into S.W.’s underwear and lowered it onto her buttocks. A short time later, S.W. could hear her daughter in the area near her, but she could not see her. C.W. whispered to S.W. to let her know she was in the room. At some point, S.W. heard her daughter exit the room. C.W. finished her massage before S.W., even though S.W.’s service began before C.W.’s. C.W. recalled that her mother was unusually quiet during the massage instead of being “chatty,” as she normally would be. C.W. waited in the hallway outside the massage room for four or five minutes for S.W.’s massage to finish. After S.W. came out of the massage room, C.W. immediately noticed that something was wrong. When S.W. exited the room, she was “wired” and not relaxed, as she would normally appear after a massage. C.W. described her as appearing nervous and agitated. C.W. could tell that something was wrong, but S.W. did not say anything at that time. The two ladies walked to the front desk. As was her routine, S.W. paid for both massages and left a $10 tip. She did not make a complaint regarding the massage with the receptionist before leaving the school. Concerned regarding her mother’s behavior, C.W. asked S.W. what happened. S.W. stated that something weird happened. The ladies left the school and began driving to their destination. S.W. continued to be upset and ultimately, began crying. She was so upset that initially, she could not articulate what occurred. S.W. ultimately told C.W. that Respondent had placed his hand under her underwear and touched her clitoris. S.W. contacted her friend Mike, a law enforcement officer. S.W. explained to Mike what happened, and he suggested that she contact the police to report what happened to her. S.W. and C.W. called the police and requested that an officer meet the ladies at Daytona College. They also contacted the school and advised them that S.W. had been inappropriately touched during her massage. They arrived back at the school approximately 20 minutes later. The officer arrived shortly after S.W. and C.W. The officer interviewed S.W. and she reported to him that while massaging her thighs, Respondent “grazed” her vaginal area with his finger. S.W. also reported that Respondent touched her clitoris with his finger. S.W. declined to pursue criminal charges and stated she would file a complaint with the Department. However, she expressed that she wanted to ensure there was a record of the incident so another woman would not have the same experience. On or about July 26, 2017, one week later, S.W. filed a complaint with the Department of Health. S.W. submitted a typewritten statement regarding the events involving Respondent. S.W. related that at the beginning of the massage, she gave Respondent permission to pull down her underwear and tuck in the drape. She stated that toward the end of the massage, Respondent “grazed” her vagina outside her underwear. He then placed his finger under her underwear and began massaging her clitoris for a couple of seconds. She stated that she grabbed Respondent’s hand and pushed it away. In response, Respondent abruptly told S.W. that the massage was done. In addition to the report to the police and the Department, S.W. also reported the incident to the school administrators, Dr. Ali and Mr. Brooks. Dr. Ali met with S.W. and C.W. when they returned to the school. Dr. Ali described S.W. as appearing embarrassed, subdued, and uncomfortable. Mr. Brooks was also present during the meeting. He was called to campus after he received a report that something inappropriate happened. He observed that S.W. appeared upset. Although there was no expert offered to testify in this matter, Chris Brooks, LMT, provided insight regarding the type of massage provided to S.W. He explained the difference between sensualized touch and sexualized touch. A sensualized touch is not uncommon in massage. On the other hand, sexualized touch is used to evoke sexual pleasure. At hearing, S.W. was clear and unwavering in her recollection of the events involving Respondent touching her vaginal area. S.W. appeared anxious, uncomfortable, and her voice cracked when she testified that Respondent moved her underwear and touched her vaginal area. Specifically, she testified that Respondent grazed her vagina on top of the front of her underwear. She was in such shock that it happened she could not say anything. Respondent then put a bare finger underneath her underwear and began massaging her clitoris. She still could not speak, so she quickly grabbed his hand and pushed it away. Consistent with her statement to the police officer and her written statement, she credibly testified that Respondent touched her vaginal area with his finger. At hearing, Respondent denied touching S.W.’s vagina during the massage. He also denied rubbing her clitoris. Mr. Brooks, who is personally and professionally acquainted with Respondent, testified that Respondent seemed shocked to learn of S.W.’s complaint. Respondent testified that he draped S.W.’s legs in such a way that it caused the draping to “bunch” between the area massaged and the genitalia. Respondent argues that S.W. could not determine whether the draping touched her genitals when Respondent massaged her legs. However, when pressed on this point, S.W. unequivocally testified that she was certain it was Respondent’s finger that touched her clitoris. Respondent had no prior complaints of inappropriate touching before S.W.’s complaint. Although Mr. Brooks asked him about the complaint on the date of the incident, there was no evidence offered at hearing that Respondent was formally interviewed by the school administration. However, Respondent was terminated from his job at Daytona College based on S.W.’s complaint. Respondent was also not interviewed by the police officer investigating the complaint. Respondent was not charged with a crime. Respondent has no prior disciplinary action involving his license to practice massage therapy. The evidence demonstrates that Respondent crossed the boundaries of appropriate massage into sexual misconduct when he massaged S.W.’s clitoris with his finger. While Respondent’s testimony seemed sincere, S.W. was more persuasive. Based on the totality of the evidence presented at hearing, there is clear and convincing evidence that Respondent touched S.W.’s vaginal area or clitoris with his finger. The placement of a massage therapist’s finger on the vaginal area or clitoris of a patient is outside the scope of the professional practice of massage therapy.
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 guilty of violating sections 480.046(1)(p) and 480.0485 as further defined in rule 64B7-26.010; Imposing a fine of $2,500; and Revoking Respondent’s license to practice massage therapy. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 5th day of April, 2019.
The Issue The issues in this case are whether Respondent, a massage therapist, obtained a license: (a) by means of fraudulent misrepresentations; (b) which she knew had been issued in error; and/or (c) without having completed a course of study at an approved school, as Petitioner alleges. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact The Department issued Hao license number MA 60237, which authorized her to practice massage therapy in the state of Florida. The Department and the Board of Massage Therapy ("Board") have regulatory jurisdiction over licensed massage therapists such as Hao. The Department provides investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done this instance, when cause exists to suspect that a licensee has committed a disciplinable offense. The Florida College of Natural Health ("FCNH") is an incorporated nonpublic postsecondary educational entity. FCNH 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. 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 480.033.2/ 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- (Apr. 25, 2010), which provided in pertinent 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. 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.3/ Regarding these required practices, section 1005.04, Florida Statutes (2009), 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; Ensure that all advertisements are accurate and not misleading; Publish and follow an equitable prorated refund policy for all students, and follow both the federal refund guidelines for students receiving federal financial assistance and the minimum refund guidelines set by commission rule; Follow the requirements of state and federal laws that require annual reporting with respect to crime statistics and physical plant safety and make those reports available to the public; and Publish and follow procedures for handling student complaints, disciplinary actions, and appeals. 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. If a licensed institution has entered into written articulation agreements with other institutions, a list of those other institutions may be provided to students, along with any conditions or limitations on the amount or kinds of credit that will be accepted. Such written agreements with other institutions must be valid and in effect at the time the information is disclosed to the student. The agreements shall be kept on file at all times and available for inspection by Commission representatives or students. Any change or termination of the agreements shall be disclosed promptly to all affected students. 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. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (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.4/ 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. At all relevant times, FCNH's registrar was Glenda Johnson. As registrar, Ms. Johnson had apparent authority, at a minimum, to evaluate the transferability of credits, and she possessed actual authority to generate and execute the Transfer of Credit Form certifying to the Board that an applicant's previously earned credits were acceptable to FCNH. In December 2011, an individual with the National Certification Board for Therapeutic Massage and Bodywork ("NCB") placed a telephone call to Melissa Wade, a managerial employee of FCNH, to report that the NCB had received a number of applications to sit for the National Certification Examination from FCNH graduates whose transcripts seemed irregular. (Hao's application was not among these; she had taken, and passed, a national licensing examination in February 2010.) What these applicants had in common was that they had earned their massage therapy diplomas from Royal Irvin College in Monterey Park, California, and they had fewer credit hours on their transcripts than FCNH's typical students. The NCB sent copies of the suspicious credentials to FCNH. Ms. Wade reviewed the materials and detected purported 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 with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them. Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. Ms. Wade later notified the Board 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 fully cooperated. The investigation uncovered some 200 graduates whose credentials FCNH could not confirm. One of them was Hao. Hao was born in China and at some point immigrated to the United States. In 2007 Hao studied massage therapy at Acupuncture and Massage Institute of America ("AMIA") in Hacienda Heights, California. At AMIA, Hao successfully completed a 750-hour curriculum in massage therapy, graduating on December 18, 2007. Thereafter, Hao relocated to Florida intending to work as a massage therapist. Before she could begin working, however, Hao needed to obtain a Florida license. Because AMIA was not a Board-approved massage school, Hao needed to complete either a course of study at an approved school or, alternatively, an apprenticeship program. In June 2010, Hao went to the Pompano campus of FCNH, where she met with Ms. Johnson. Hao decided to enroll in FCNH, and Ms. Johnson prepared the necessary documents. Hao gave Ms. Johnson copies of her educational credentials from AMIA. In her capacity as registrar, Ms. Johnson completed a Transfer of Credit Form, and FCNH's internal Calculation Form for a Graduate From Another Massage Therapy School. Ms. Johnson took Hao's FCNH enrollment forms and collected $400.00 in cash as the fee for handling the transfer of Hao's credits and her registration as a student of FCNH. Having collected the money, Ms. Johnson furnished Respondent with several items, including an FCNH document titled "Certificate of Completion — 15 Hours of Therapeutic Massage Training Program (Transfer of Licensure)" that bore Ms. Johnson's signature and the school's seal; an FCNH document titled "Certificate of Completion — 2 Hours of Prevention of Medical Errors," which bore FCNH's seal, as well as Ms. Johnson's signature; the Transfer of Credit Form signed by Ms. Johnson, which indicates that FCNH accepted Hao's credits from AMIA; and an FCNH transcript (signed by Ms. Johnson and bearing the school's seal) showing that Hao had completed a 500- hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)." 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. The several documents comprising Hao's FCNH diploma will be referred to hereafter, collectively, as the "Diploma." Ms. Johnson produced a Department of Health application for a massage therapy license and helped Hao fill it out. Hao then signed the three-page application, which is dated June 17, 2010. The application which Hao executed states, truthfully, that she obtained a massage therapy certificate in December of 2007 from AMIA and that the school is not Board approved. The application states, correctly, that Hao completed 750 hours of study at AMIA. The evidence does not establish that Hao knowingly made a false statement of material fact in the application or otherwise intended to perpetrate a fraud on the Department. Ms. Johnson forwarded Hao's application and supporting documents to the Department, and soon afterward the Department issued Hao a license to practice as a massage therapist. The evidence fails to support a finding that Hao misrepresented her educational attainments when she met with Ms. Johnson. The evidence, moreover, does not support a finding that Hao knew or should have known that Ms. Johnson's evaluation of her credits was anything but routine and in accordance with FCNH's academic policies. The evidence does not support a finding that Hao knew or should have known that FCNH, as the transferee school accepting her AMIA courses, would award her academic credit or credentials which she had not legitimately earned. Hao was not shown to have had any prior familiarity with FCNH forms and documents; its recordkeeping practices; or its internal policies regarding the registration and enrollment of students, the evaluation of transcripts for the purpose of transfer of credits, or the issuance of certificates and other educational credentials. Hao was not shown to have had any reason to suspect that the FCNH Enrollment Agreement she signed would not be properly entered into the school's records, or to believe that the FCNH transcript issued for her benefit purported to award her any credits other than those she rightfully had earned. To sum up Hao's transaction with FCNH, she went to the Board-approved, state-licensed massage school in June 2010, where she met with the registrar, Ms. Johnson, a member of the school's administration who she had no reason to believe would deceive her. It was reasonable under the circumstances for Hao to rely upon Ms. Johnson, and she was entitled under the law to receive accurate information from the registrar regarding, among other things, the transferability of credits to FCNH, and the relationship between FCNH's academic program and the state's licensure requirements for massage therapists. Further, Ms. Johnson, who at all times was acting within the course and scope of her employment as the school's registrar, had actual authority to prepare and certify educational credentials on behalf of FCNH. The evidence does not establish that Hao was or should have been aware of any limitations on Ms. Johnson's authority, nor does the evidence show that Hao gave Ms. Johnson false information. From Hao's perspective, Ms. Johnson had apparent authority, at least, to accept Hao's credits from AMIA and to prepare, execute, and issue such transcripts and certificates as would be appropriate to the situation. Hao has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. FCNH has not initiated a legal proceeding to revoke or withdraw Hao's Diploma. At present, therefore, there is no legally binding or enforceable determination that the Diploma is void or that Hao is without rights and privileges thereunder.
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 Hao not guilty of the offenses charged in the Complaint. DONE AND ENTERED this 20th day of August, 2013, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of August, 2013.
The Issue The issues in this case are whether Respondent committed the allegations contained in the 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 August 1, 2007, the Department issued Respondent license number MA 50975, which authorized her to practice massage therapy in the state of Florida. Respondent's address of record is 3558 Silver Lace Lane, Boynton Beach, Florida 33436. 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. In or around September 2005, Respondent immigrated to the United States and became a citizen of the state of Massachusetts. Some six months later, Respondent relocated to Florida, where she resided until December 2006; at that point, Respondent moved to California to attend Royal Irvin College ("Royal Irvin"), an institution that offered massage therapy instruction. On March 14, 2007, upon Respondent's successful completion of a course of study comprising 500 hours, Royal Irvin awarded her a degree. Subsequently, on July 12, 2007, Respondent passed the National Certification Examination for Therapeutic Massage and Bodywork. At or around that time, Respondent relocated to Pompano Beach area to seek employment as a massage therapist. 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. At the suggestion of an acquaintance, Respondent decided to contact the Florida College of Natural Health ("FCNH"), a Board-approved massage school located in Pompano Beach. An initial inquiry of FCNH was made by Respondent's ex-husband, who, at Respondent's request, telephoned the institution and spoke with one of its employees. Thereafter, on or about July 27, 2007, Respondent and her ex-husband traveled to FCNH's campus and met with the institution's registrar, Glenda Johnson. Respondent's ensuing dealings with Ms. Johnson and her 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).2/ 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 246, F.S. [now Ch. 1005, Fla. Stat.], 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.3/ 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. Units or credits applied toward the award of a credential may be derived from a combination of any or all of the following: Units or credits earned at and transferred from other postsecondary institutions, when congruent and applicable to the receiving institution's program and when validated and confirmed by the receiving institution. Successful completion of challenge examinations or standardized tests demonstrating learning at the credential level in specific subject matter areas. Prior learning, as validated, evaluated, and confirmed by qualified instructors at the receiving institution. * * * (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.4/ 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 FCNH's registrar, Ms. Johnson, on July 27, 2007. Notably, Ms. Johnson possessed actual authority, on that date and at all relevant times, to generate official transcripts and diplomas on behalf of FCNH.5/ 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 Pompano Beach campus. Upon Respondent's arrival at the main entrance, a receptionist summoned Ms. Johnson, who, a short time later, appeared in the lobby and escorted Respondent (and Respondent's ex-husband) to her office. During the meeting that ensued, Respondent reiterated, with her limited English skills, her desire to obtain licensure in Florida as a massage therapist. To that end, Respondent presented Ms. Johnson with various documents, which included her diploma and transcript from Royal Irvin, as well as proof of her national certification. At one point during the meeting, and in response to a question from Respondent's ex-husband, Ms. Johnson informed Respondent——erroneously——that her existing coursework was sufficient for licensure and that Respondent could simply transfer her previously-earned credits to FCNH. (Among other things, Ms. Johnson should have advised Respondent that Board- approved coursework in "HIV/AIDS," which Respondent did not complete until after6/ the Complaint was filed in this matter, was required for licensure.) All Respondent needed to do, Ms. Johnson incorrectly explained, was read an FCNH-prepared booklet concerning the prevention of medical errors. Consistent with Ms. Johnson's instructions, Respondent took the booklet7/ home and reviewed its contents. As the meeting progressed, Ms. Johnson collected $468.00 in fees from Respondent and helped her complete a three- page form titled, "State of Florida Application for Massage Therapist Licensure." In the application, 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. (Although the evidence establishes that Respondent failed to review the rules and statutes pertaining to massage therapy prior to signing the application——the plain language of which requires applicants to certify that the rules and statutes have been read——the Department failed to charge this conduct in the Complaint.) Thereafter, and on Respondent's behalf, Ms. Johnson submitted to the Department Respondent's application for licensure. The application was accompanied by a number of supporting documents, including two "Certificates of Completion," both of which bore Ms. Johnson's signature and FCNH's official seal. The first such certificate reflected that Respondent had satisfied a two-hour course relating to the prevention of medical errors, while the second indicated the completion of a "Therapeutic Massage Training Program (Transfer of Licensure)." The application package prepared and submitted by Ms. Johnson also contained: a "Transfer of Credit Form" signed by Ms. Johnson, which indicated that FCNH accepted Respondent's credits from Royal Irvin, and, further, that Respondent's coursework at Royal Irvin included a three-credit course concerning "HIV/AIDS"; an FCNH transcript that bore Ms. Johnson's signature and indicated that Respondent had completed a 500-hour program titled "Therapeutic Massage Training Program (Transfer of Licensure)"; Respondent's diploma and transcript from Royal Irvin; and proof of Respondent's national certification as a massage therapist. 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.") Subsequently, on August 1, 2007, the Department issued Respondent her license to practice massage therapy. With the exception of the instant proceeding, there is no evidence that Respondent's license has been the subject of prior disciplinary action. 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, a managerial employee of FCNH, 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. 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 with the problematic transcripts and certificates. Ms. Johnson admitted that she had created and signed them, but she denied——falsely, 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.) Shortly thereafter, in December 2011, FCNH terminated Ms. Johnson's employment. 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 240 graduates, including Respondent, whose credentials FCNH could not confirm. Respondent has not surrendered her Diploma or otherwise acceded to the allegation that the credentials FCNH conferred upon her are invalid. Although Ms. Wade credibly testified at hearing that Ms. Johnson should not have awarded Respondent an FCNH Diploma based on Respondent's Royal Irvin credits, 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 18th day of July, 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 18th day of July, 2013.
