97-004400 Carol Rangel vs. Board Of Massage Status: Closed Recommended Order on Monday, July 6, 1998.

Summary: Petitioner failed to demonstrate specialized training for purposes of approval as a continuing educational provider in massage therapy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL RANGLE GILMORE, )

)

Petitioner, )

)

vs. ) Case Nos. 97-4400

) 98-1344

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD OF )

MASSAGE THERAPY, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 20, 1998, at Tampa, Florida, before Richard A. Hixson, a

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Carol Rangle Gilmore, pro se

520 107th Avenue North

Naples, Florida 34108

For Respondent: Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

The issues for determination in these consolidated cases are

whether Petitioner's applications for approval as a continuing

education provider should be approved.

PRELIMINARY STATEMENT

On July 10, 1997, Respondent, Board of Massage Therapy

(Board), denied the initial application of Petitioner, Carol

Rangle Gilmore, for approval as a continuing education provider.

Petitioner's initial application sought approval as a continuing

education provider for several courses including professional

ethics, manual lymph drainage, reflexology, and aromatherapy.

Petitioner also initially sought approval for a course entitled

Understanding Muscle Balance; however, Petitioner no longer

offers this course, and is not presently seeking approval for

this course. Subsequent to the Board's denial of her initial

application, Petitioner filed a timely request for formal hearing

which was referred to the Division of Administrative Hearings on

September 17, 1997. This matter was designated as Case

No. 97-4400, and set for hearing to be held on January 16, 1998.

On January 9, 1998, the Board denied Petitioner's second

application for approval as a continuing education provider.

Petitioner's second application pertained to courses for sports

massage and HIV/AIDS. Petitioner filed a timely request for

formal hearing, which was referred to the Division of

Administrative Hearings and designated as Case No. 98-1344.

Pursuant to an agreed motion for continuance and consolidation,

the above-referenced cases were consolidated and rescheduled for

hearing on May 20, 1998.

At hearing Petitioner testified in her own behalf and

presented eight exhibits which were received in evidence.

Respondent presented the testimony of one witness, Joe R. Baker,

Jr., Executive Director of the Board of Massage Therapy, and

submitted five exhibits which were received in evidence. At the

conclusion of the hearing the parties requested and were granted

leave to file their proposed recommended orders fifteen days

subsequent to the filing of the transcript of the hearing. On

June 1, 1998, Petitioner filed a letter stating her position with

regard to the matters presented at hearing. The transcript of

the hearing was filed on June 5, 1998. On June 17, 1998,

Respondent filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Carol Rangle Gilmore, is a licensed massage

therapist in the State of Florida. Petitioner also holds a

certificate to practice massage therapy which was issued by the

city of San Diego, California.

2. On February 12, 1991, Petitioner received a certificate

from the Mueller College of Holistic Studies in San Diego,

California, stating that Petitioner had completed the prescribed

course of training in anatomy, physiology, and human relations,

and passed a creditable examination in the art of massage.

Petitioner completed 9 credit hours in anatomy, 9 credit hours in

physiology, 9 credit hours in history, theory and ethics, and 75

credit hours in practice and demonstration, for a total of 100

credit hours of instruction at Mueller College of Holistic

Studies. The certificate of completion issued to Petitioner by

Mueller College of Holistic Studies was as a Massage Technician.

3. Mueller College of Holistic Studies was not at the time

of the issuance of Petitioner's certificate of completion in

1991, nor is Mueller College of Holistic Studies now, a Board-

approved massage school for purposes of licensure in Florida

under Rule 64B7-32.003, Florida Administrative Code.

4. On September 16, 1992, Petitioner received a certificate

of completion of a course of 1000 hours of holistic studies from

the Desert Resorts School of Soma Therapy (Desert Resorts) in

Desert Hot Springs, California. Petitioner's certificate of

completion from Desert Resorts states that the course of study

consisted of a 100-hour massage technician certificate course

(which was credited from Mueller College), and 900 hours of

"postgraduate work" in anatomy, physiology, acupressure,

nutrition, business ethics, history, theory, and practice of both

Eastern and Western forms of massage, specializing in specific

forms used in various types of bodywork. Petitioner's transcript

from Desert Resorts reflects the 100 hours of credit for her

massage technician course from Mueller College, and 48 credit

hours in each of the following subjects: Acupressure I;

Acupressure II; Advanced Massage I (Aromomatherapy, Manual Lymph

Drainage); Advanced Massage Therapy II (Sports Massage); Anatomy

& Physiology; Kinesiology; Communication Skills & Ethics;

Body/Mind Integration; and Health and Nutrition. Additionally,

Petitioner's transcript from Desert Resorts reflects 468 credit

hours in Assessment & Remediation. Petitioner's certificate from

Desert Resorts designated her a holistic health practitioner.

5. Desert Resorts School of Soma Therapy was not at the

time of the issuance of Petitioner's certificate of completion in

1992, nor is Desert Resorts now, a Board-approved massage school

for purposes of licensure in Florida under Rule 64B7-32.003,

Florida Administrative Code.

6. Subsequent to completion of her studies at Mueller

College of Holistic Studies and Desert Resorts School of Soma

Therapy, Petitioner applied for licensure as a massage therapist

in the State of Florida. Rule 64B7-32-002, Florida

Administrative Code, requires graduation from a Board-approved

massage school for licensure eligibility in Florida. Pursuant to

Rule 64B7-32.003, Florida Administrative Code, the minimum

requirements for Board approval of a massage school includes 500

classroom hours of coursework as follows: 150 hours in Anatomy

and Physiology; 225 hours in Basic Massage Theory and Clinical

Practicum; 10 hours in Florida Statutes/Rules and History of

Massage; 15 hours in Theory and Practice of Hydrotherapy; 97

hours in Allied Modalities; and 3 hours in HIV/AIDS. Because

neither Mueller nor Desert Resorts were Board-approved massage

schools, Petitioner, in order to meet Florida licensure

eligibility requirements, was required to transfer credit through

a massage school approved by the Board. To meet Florida

requirements, Petitioner was further required to complete

coursework in HIV/AIDS, Florida statutes and rules, and the

history of massage therapy. Petitioner successfully completed

the Florida licensure eligibility requirements by receiving

further instruction at the Core Institute in Tallahassee,

Florida, a Board-approved massage school, and by completing her

HIV/AIDS course at another Board-approved massage school in

Atlanta, Georgia. Petitioner's coursework from Mueller and

Desert Resorts was transferred through, and included in, her

credited hours for licensure eligibility in Florida by completion

of her instruction at the Board-approved massage schools she

attended in Florida and Georgia.

7. As indicated above, subsequent to her licensure as a

massage therapist in Florida, Petitioner applied to the Board for

approval as a continuing education provider for six courses in

the following subjects: professional ethics, manual lymph

draining, reflexology, aromatherapy, sports massage, and

HIV/AIDS. For several years Petitioner has been preparing and

offering correspondence or home study courses related to massage

therapy under the corporate name Tranquility, Inc. Petitioner's

correspondence courses are used as part of the curriculum of

Applied Kinesiolgy Studies, a school of massage/bodywork in

Reston, Virginia. Applied Kinesiolgy Studies is not a Board-

approved massage school. Petitioner's home study courses are

also used as part of the continuing education program at the

Alternative Conjunction, which is a Board-approved school of

massage in Lemoyne, Pennsylvania.

8. The requirements for approval as a continuing education

provider are set forth in Rule 64B7-28.010, Florida

Administrative Code, as more fully set out below. There is no

dispute that Petitioner is ineligible for approval as a

continuing education provider under Rule 64B7-28.010(2)(c )1.,

2.a., or 2.b., Florida Administrative Code, in that Petitioner

does not hold a bachelor's degree from a college or university

accredited by the Department of Education, has not had a minimum

of two years teaching experience in the subject matter to be

offered, and has not taught the courses three times in the past

two years before a professional convention, professional group,

or at a massage therapy school. Although Petitioner's

correspondence courses are offered through at least two massage

therapy schools, Petitioner does not serve on the faculty of any

massage therapy school, and does not present classes of

instruction at any massage therapy school.

9. The dispute in this matter arises in regard to the

application of Rule 64B7-28.010(2)(c ) 2.c., Florida

Administrative Code, which allows for approval as a continuing

education provider if a person has graduated from a school of

massage which has equivalency to a Board-approved school, has

completed three years of professional experience in the practice

of massage, and "has completed specialized training in the

subject matter and has a minimum of two years of practical

experience in the subject." Petitioner takes the position that

her coursework at Desert Resorts, which includes 900 hours of

"postgraduate work," constitutes "specialized training" for the

purposes of approval as a continuing education provider under

Rule 64B7-28.010, Florida Administrative Code. Respondent takes

the position that Petitioner's "postgraduate" coursework at

Desert Resorts in California was not specialized training, but

primarily basic massage training. Moreover, Respondent contends

that Petitioner's training was not conducted at a Board-approved

massage school, and the credit for this training was already

considered as part of the fulfillment of Petitioner's basic

licensure eligibility requirements which was afforded Petitioner

by the Board approved schools she attended in order to obtain

licensure in Florida.

10. A comparison of the educational requirements for

licensure in Florida found in Rule 64B7-32.003, Florida

Administrative Code with the coursework completed by Petitioner

at Mueller College and Desert Resorts Schools shows that:

(a) Petitioner completed 75 hours of practice and

demonstration at Mueller College and 468 hours of assessment and

remediation at Desert Resorts, a combined 543 hours which

correspond to the requirements in basic massage theory and

clinical practicum. The transcript shows that 318 of the 500

hours Petitioner completed in excess of the Florida minimum

requirements were in clinical practicum, and not in the subjects

in which Petitioner seeks specialized training designation and

continuing education provider approval.

(b) Petitioner's training in lymphatic systems is part of

the Florida requirement for 150 hours of study in anatomy and

physiology, and is not specialized training.

(c) The coursework credited by Desert Resorts School to

meet the requirement of 150 hours in anatomy and physiology does

not total 150 hours, but 109 hours as follows: Massage

Technician 13 hours; Anatomy and Physiology 48 hours; Advanced

Massage/Active 48 hours. Accordingly, when Petitioner's credits

were transferred to a Florida approved massage school, additional

credits were needed to meet the Florida anatomy and physiology

requirements, which Petitioner would have had to take at the Core

Institute although her transcript from Core was not submitted.

(d) 144 hours coursework taken at the Desert Resorts School

are not equivalent to any of the Florida requirements, and

include 48 hours of study in each of the following:

communication skills and ethics, body/mind integration, and

health and nutrition. None of these courses relate to the six

topics of continuing education courses for which Petitioner seeks

approval, and are therefore irrelevant.

(e) Of the 500 excess hours of study taken by Petitioner at

Desert Resort, 462 of those hours do not constitute advanced or

specialized training in manual lymph drainage, aromatherapy,

sports massage or HIV/AIDS. There is nothing on the transcripts

that indicated any study in reflexology, for which Petitioner

seeks approval as a continuing education provider and there is no

indication from the transcript that reflects study in HIV/AIDS.

(f) The only training Petitioner has demonstrated in

HIV/AIDS is the continuing education courses necessary to renew

her license.

11. The documentation Petitioner provided does not

demonstrate any specialized training in addition to the

transcripts from which she was granted initial licensure in

Florida, and there is no evidence other than what was reflected

on Petitioner's transcripts in the areas of manual lymph

drainage, relexology, aromatherapy, or sports massage.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter of this cause,

pursuant to Section 120.56(5), Florida Statues.

13. Rule 64B7-28.010(2)(c), Florida Administrative Code,

requires that approved continuing education programs be

instructed by a person who meets at least one of the following

criteria:

1. Holds a minimum of a bachelor's

degree from a college or university which

is accredited by a regional accrediting

body recognized by the U.S. Department of

Education or a substantially equivalent

accrediting body of a foreign sovereign

state, with a major in a subject directly

related to the content of the program to

be offered, or

2. Has graduated from a school of

massage or an apprenticeship program

which has a curriculum equivalent to

requirements in this state and was

approved by a state licensing authority,

a nationally recognized massage therapy

association, or a substantially

equivalent accrediting body, or the

Board, and has completed three years of

professional experience in the practice

of massage, and

(a) Has, within the last five years of

practical experience, had a minimum of

two years teaching experience in the

subject matter to be offered, or

(b) Has taught the same courses on this

approved subject a minimum of 3 times in

the past 2 years before a professional

convention, professional group or at a

massage therapy school, or

(c) Has completed specialized training

in the subject matter and has a minimum

of two years of practical experience in

the subject, or

3. Is licensed as a massage therapist in

another state or foreign sovereign state

having standards of education or

apprenticeship training substantially

similar to or more stringent than those

required for licensure in Florida and has

practiced massage therapy for a minimum

of 10 years teaching experience in the

subject matter to be offered, or

a. Has, within the last five years of

practical experience, had a minimum of

two years teaching experience in the

subject matter to be offered, or

b. Has taught same courses on this

approved subject a minimum of 3 times in

the past 2 years before a professional

convention, professional group or at a

massage therapy school, or

c. Has completed specialized training in

the subject matter and has a minimum of

two years of practical experience in the

subject, or

4. Has taught at a school of massage

which has a curriculum equivalent to

requirements in this state and was

approved by a state licensing authority,

a nationally recognized massage therapy

association, or a substantially

equivalent accrediting body, or the Board

for a minimum of two years, and

a. Has, within the last five years of

practical experience, had a minimum of

two years teaching experience in the

subject matter to be offered, or

b. Has taught the same courses on this

approved subject a minimum of 3 times in

the past 2 years before a professional

convention, professional group or at a

massage therapy school, or

c. Has completed specialized training in

the subject matter and has a minimum of

two years of practical experience in the

subject.

14. For courses in areas other than massage theory, history

or techniques, Rule 64B7-28.010(2)(d) requires the instructor to

meet at least one of the following criteria:

1. Holds a minimum of a bachelor's

degree from a college or university which

is accredited by a regional accrediting

body recognized by the U.S. Department of

Education or a substantially equivalent

accrediting body of a foreign sovereign

state, with a major in a subject directly

related to the content of the program to

be offered, or

2. Has, within the last five years of

practical experience, had a minimum of

two years teaching experience in the

subject matter to be offered, or

3. Has taught the same courses on this

approved subject a minimum of 3 times in

the past 2 years before a professional

convention, professional group or at a

massage therapy school, or

4. Has completed specialized training in

the subject matter and has a minimum of

two years of practical experience in the

subject.

15. Petitioner has the burden of establishing entitlement

to approval as a continuing education provider. Golfcrest

Nursing Home v. Agency for Health Care Administration , 662 So. 2d

1330 (Fla. 1st DCA 1995); Young v. Department of Community

Affairs , 625 So. 2d 831 (Fla. 1993).

16. Petitioner has not established her entitlement to

approval as a continuing education provider. Petitioner's

training in four of the areas for which she seeks approval,

professional ethics, manual lymph drainage, aromatherapy, and

sport massage was taken as part of her basic massage therapy

instruction at a school not approved by the Board, and cannot be

considered specialized training under Rule 64B7-28.010, Florida

Administrative Code. There is no indication of specific training

in reflexology. Petitioner's instruction in HIV/AIDS (the sixth

subject), although credited from a Board approval school, was

taken to meet Florida licensure eligibility requirements, and

likewise cannot be considered specialized training under

Rule 64B7-28.010, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order denying

Petitioner's request for approval as a continuing education

provider.

DONE AND ENTERED this 6th day of July, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

RICHARD A. HIXSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July, 1998.

COPIES FURNISHED:

Carol Rangle Gilmore, pro se

520 107th Avenue North

Naples, Florida 34108

Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Lynda L. Goodgame

General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Joe Baker, Executive Director

Board of Massage

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.