99-005247 Gary Randall Ostoski vs. Department Of Health, Board Of Physical Therapy Practice Status: Closed Recommended Order on Thursday, April 13, 2000.

Summary: Applicant who received a Bachelor of Science from a non-accredited foreign university, passed the national examination in Colorado, and is licensed in Colorado is entitled to a Florida license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY RANDALL OSTOSKI, )

)

Petitioner, )

)

vs. ) Case No. 99-5247

)

DEPARTMENT OF HEALTH, BOARD )

OF PHYSICAL THERAPY PRACTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on March 6, 2000, in

Tallahassee, Florida, by Daniel Manry, Administrative Law Judge

("ALJ"), Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Wilson Jerry Foster, Esquire

1342 Timberlane Road, Sui te 101A

Tallahassee, Florida 32312-1775

For Respondent: Ann Cocheu, Esquire

Office of the Attorney General

Administrative Law Section

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should grant

Petitioner's request for licensure by endorsement as a physical

therapist pursuant to Sections 486.031 or 486.081, Florida

Statutes (1997), and Florida Administrative Code Rule 64B17-

3.003. (All statutory references are to Florida Statutes (1997)

unless otherwise stated. All references to rules are to rules

promulgated in the Florida Administrative Code in effect on the

date of this Recommended Order.)

PRELIMINARY STATEMENT

By order filed on July 8, 1999 ("Denial Order") the Board of

Physical Therapy Practice (the "Board") denied Petitioner's

application for licensure as a physical therapist. Petitioner

timely filed a Petition for DOAH Hearing on August 4, 1999. On

December 13, 1999, the Board referred the matter to DOAH for

assignment of an ALJ to conduct the hearing.

At the hearing, Petitioner testified in his own behalf and

called no other witnesses. Respondent called one witness. The

parties submitted four joint exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the Transcript of the hearing

filed on March 17, 2000. The parties timely filed their

respective proposed recommended orders on March 31, 2000.

FINDINGS OF FACT

1. It is uncontroverted that Petitioner is 48 years old and

of good moral character within the meaning of Section 486.031(1)

and (2). Petitioner has been a resident of Florida for 34 years.

He is licensed in Florida as a chiropractor and is a graduate of

a four-year degree program at Palmer College of Chiropractic

("Palmer College").

2. Petitioner is board certified as a chiropractor

orthopedist and as a chiropractic neurologist. Both board

certifications required additional training after graduation from

Palmer College.

3. In June 1995, Petitioner attended the University of

Health Sciences Antigua School of Allied Health Professionals and

received a Bachelor of Science in Physical Therapy from that

institution in August 1996. Petitioner traveled to the

University of Antigua eight times in two years for education

sessions. Each session lasted approximately two weeks.

4. In addition to the hours Petitioner spent at the

University of Antigua, Petitioner spent approximately 1,200 hours

during an eight-month period at a physical therapy facility

associated with the hospital in Antigua. In addition, Petitioner

spent approximately 650 hours interning at the Spinal

Rehabilitation Institute in Titusville, Florida. The University

of Antigua required Petitioner to complete the 1,200 hours at the

physical therapy facility and the 650 hours as an intern as part

of its educational program.

5. After obtaining a degree in physical therapy fro m the

University of Antigua, Petitioner applied to the State of

Colorado to take an examination prepared under the auspices of

Profession Examination Services ("PES"). Colorado evaluated

Petitioner's education and allowed Petitioner to take the PES

exam. Petitioner passed the PES exam and has been licensed as a

physical therapist in Colorado since April 11, 1997.

6. On February 9, 1999, Petitioner applied to the State of

Florida for a license as a physical therapist. Petitioner

received and relied upon application materials provided by

Respondent. In particular, Petitioner utilized Respondent's

"List of Currently Qualified Credentialing Agencies" to select

the International Education Research Foundation (the

"Foundation") to evaluate Petitioner's foreign education. The

Foundation is the appropriate agency identified by the Board,

within the meaning of Section 486.031(3)(b), to determine whether

Petitioner has educational credentials equivalent to those

required for the educational preparation of physical therapists

in the United States.

7. The Foundation gave Petitioner credit for 60 semester

hours of physical therapy education including six clinical hours.

The Foundation determined that Petitioner has the U.S. equivalent

of a Bachelor of Science in Physical Therapy (non-traditional

program awarded by nonaccredited colleges and universities). The

Foundation prepared its evaluation:

. . . in accordance with guidelines developed

by several state licensing boards and was

completed in close collaboration with a

physical therapy consultant. Records from

the institution attended showing coursework

completed, hours of study and grades earned,

were used as the basis for this report.

Joint Exhibit 1 at 399.

8. The Board denied Petitioner's application for the

following reasons:

The applicant does not meet the requirements

of Sections 486.031(3)(b) or 486.081(1) . . .

and Rules 64B17-3.001(3) and (4) or 64B17-

3.003 . . . in that the applicant does not

possess credentials that are deemed

equivalent to a bachelor's degree in physical

therapy in the United States.

At best the applicant's training is a six

week lecture series that would constitute a

continuing education course. It is not the

length and content of a CAPTE approved

bachelors or masters in science program in

physical therapy that would be the bulk of

the final year of training.

Denial Order at 1.

9. The actual basis for Respondent's denial has little to

do with factual disputes concerning Petitioner's educational

hours. As Respondent admits in its PRO:

While there may be some factual disputes

about Petitioner's educational hours, both in

modules and clinical time, these are not

really material facts for the [ALJ] to

resolve. The real issue is the legal

interpretation of . . . Sections 486.031 and

486.081. . . .

Respondent's PRO at 5.

The findings in paragraphs 12-15 of Respondent's PRO are not

material to the real issue concerning the interpretation of

Sections 486.031 and 486.081.

10. Respondent does not approve the physical ther apy

program at the University of Antigua for the educational

preparation of physical therapists within the meaning of Section

486.031(3)(a). The record does not show whether the United

States Department of Education approves the program.

11. Petitioner has received a diploma from a program in a

foreign country within the meaning of Section 486.031(3)(b). The

Foundation, as the appropriate agency identified by the Board,

has determined that Petitioner possesses educational credentials

required for the educational preparation of physical therapists

in this country.

12. Petitioner passed the Colorado PES exam in 1997.

Petitioner passed a national examination approved by the Board to

determine Petitioner's fitness to practice as a physical

therapist within the meaning of Section 486.031(3)(a) and (b).

13. Petitioner is entitled to licensure in Florida without

examination, pursuant to Section 486.031(3)(c), as provided in

Section 486.081. Petitioner passed the PES exam in 1997. The

written examination taken by Petitioner for licensure in Colorado

was an examination prepared under the auspices of the

Professional Examination Services within the meaning of Rule

64B17-3.003.

14. Respondent has long construed applicable Florida

Statutes to require an applicant for licensure without

examination to pass the requisite national examination and to

meet those educational requirements approved by the Commission on

Accreditation for Physical Therapy ("CAPTE") in accordance with

the requirements of Section 486.031(3)(a). Respondent's legal

interpretation of applicable statutes and rules is a legal

interpretation rather than a matter within the ambit of agency

expertise.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the parties and the subject

matter. Section 120.57(1). The parties were duly noticed for

the hearing.

16. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of evidence that Petitioner's application

for licensure satisfies the requirements of Sections 486.031 or

486.081. Section 120.57(1)(h); Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

17. Petitioner satisfied his burden of proof. Petitioner

showed by a preponderance of the evidence that he satisfies the

requirements of Sections 486.031 and 486.081.

18. To be eligible for licensing as a physical therapist,

Section 486.031(3), in relevant part, requires that an applicant

must:

(a) Have been graduated from a school of

physical therapy which has been approved for

the educational preparation of physical

therapists by the appropriate accrediting

agency recognized by the Commission on

Recognition of Postsecondary Accreditation or

the United States Department of Education at

the time of her or his graduation and have

passed, to the satisfaction of the board, the

American Registry Examination prior to 1971

or a national examination approved by the

board to determine her or his fitness for

practice as a physical therapist as

hereinafter provided;

(b) Have received a diploma from a program in

physical therapy in a foreign country and

have educational credentials deemed

equivalent to those required for the

educational preparation of physical

therapists in this country, as recognized by

the appropriate agency as identified by the

board, and have passed to the satisfaction of

the board an examination to determine her or

his fitness for practice as a physical

therapist as hereinafter provided; or

(c) Be entitled to licensure without

examination as provided in s. 486.081.

(emphasis supplied)

19. When the legislature uses the disjunctive "or" after

Section 486.031(3)(b), it should be given its common and ordinary

meaning unless such a meaning would frustrate legislative intent.

Cole Vision Corporation v. Department of Business and

Professional Regulation, Board of Optometry , 688 So. 2d 404, 410

(Fla. 1st DCA 1997); Eager v. Florida Keys Aqueduct Authority ,

580 So. 2d 771, 772 (Fla. 3d DCA 1991). Section 486.031(3)(a)

prescribes the licensing requirements applicable to graduates of

educational programs in the United States and does not apply to

graduates of foreign universities including Petitioner. Section

486.031(3)(b) prescribes the licensing requirements applicable to

graduates of educational programs outside the United States and

applies to Petitioner. Section 486.031(3)(c) prescribes a third

alternative for licensing. Section 486.031(3)(c) also applies to

Petitioner and incorporates by reference the provisions of

Section 486.081.

20. Petitioner is entitled to licensure in Florida pursuant

to Section 486.031(3)(b). The Foundation, as the agency

identified by Respondent, determined that Petitioner possesses

educational credentials equivalent to those required for the

educational preparation of physical therapists in this country.

21. Respondent's disapproval of the University of Antigua

educational program is statutorily authorized as a consideration

only for graduates of educational programs in the United States

pursuant to Section 486.031(3)(a). Respondent's disapproval of

the University of Antigua program is not statutorily authorized

as a consideration for graduates of educational programs outside

the United States pursuant to Section 486.031(3)(b).

22. Neither the Board nor DOAH can adopt an interpretation

of Section 486.031(3)(b) that enlarges, modifies, or contravenes

the prerequisites prescribed in the statute. Sections

120.52(8)(c); 120.58(7)(3)4. See also DeMario v. Franklin

Mortgage & Investment Co., Inc. , 648 So. 2d 210, 213-214 (Fla.

4th DCA 1994), rev . denied , 659 So. 2d 1086 (Fla. 1995) (agency

lacks authority to impose time requirement not found in statute);

Department of Health and Rehabilitative Services v. Johnson and

Johnson Home Health Care, Inc. , 447 So. 2d 361, 362 (Fla. 1st DCA

1984) (agency action that ignores some statutory criteria and

emphasizes others is arbitrary and capricious).

23. Rule 64B17-3.001(3) requires graduates of foreign

universities to satisfy the requirement in Section 486.031(3)(b)

for an equivalency determination by an identified agency such as

the Foundation and to satisfy the requirement in Section

486.031(3)(a) to obtain a bachelor's degree in a course of study

approved by CAPTE. See Respondent's PRO at 3-4. However, a rule

cannot impose a requirement not found in a statute or otherwise

enlarge, modify, or contravene the terms of a statute. Section

120.52(8)(c). See also DeMario , 648 So. 2d at 213-214 (agency

lacked authority to impose time requirement not found in

statute); Booker Creek Preservation, Inc. v. Southwest Florida

Water Management District , 534 So. 2d 419, 423 (Fla. 5th DCA

1988) (agency cannot vary impact of statute by creating waivers

or exemptions) reh. denied . Where an agency rule conflicts with

a statute, the statute prevails. Hughes v. Variety Children's

Hospital , 710 So. 2d 683, 685 (Fla. 3d DCA 1998); Johnson v.

Department of Highway Safety & Motor Vehicles, Division of

Driver's Licenses , 709 So. 2d 623, 624 (Fla. 4th DCA 1998);

Willette v. Air Products , 700 So. 2d 397, 401 (Fla. 1st DCA

1997), reh. denied ; Florida Department of Revenue v. A. Duda &

Sons, Inc. , 608 So. 2d 881, 884 (Fla. 5th DCA 1992), reh. denied ;

Department of Natural Resources v. Wingfield Development Company ,

581 So. 2d 193, 197 (Fla. 1st DCA 1991) reh. denied . See also

Capeletti Brothers, Inc. v. Department of Transportation , 499 So.

2d 855, 857 (Fla. 1st DCA 1987)(rule cannot expand statutory

coverage) rev. denied , 509 So. 2d 1117.

24. Neither Respondent nor DOAH has authority to construe

Rule 64B17-3.001(3) as imposing a requirement not found in a

statute. Hughes , 710 So. 2d at 685; Johnson , 709 So. 2d at 624;

Willette , 700 So. 2d at 401; DeMario , 648 So. 2d at 213-214; Duda

& Sons , 608 So. 2d at 884; Wingfield , 581 So. 2d at 197; Booker

Creek , 534 So. 2d at 423; Capeletti Brothers , 499 So. 2d at 857.

The requirements in Rule 64B17-3.001(3) must be construed in a

manner that is consistent with the statutory authority in Section

486.031(3)(b).

25. Even if it were determined that Petitioner is not

entitled to licensure pursuant to Section 486.031(3)(b),

Petitioner is entitled to licensure pursuant to Sections

486.031(3)(c) and 486.081. Section 486.031(3)(c) expressly

authorizes licensure without examination if Petitioner satisfies

the requirements of Section 486.081.

26. Section 486.081 provides, in relevant part:

(1) The board may cause a license to be

issued through the department without

examination to any applicant who presents

evidence satisfactory to the board of having

passed the American Registry Examination

prior to 1971 or an examination in physical

therapy before a similar lawfully authorized

examining board of another state, the

District of Columbia, a territory, or a

foreign country, if the standards for

licensure in physical therapy in such other

state, district, territory, or foreign

country are determined by the board to be as

high as those of this state , as established

by rules adopted pursuant to this chapter

. . . . (emphasis supplied)

27. Rule 64B17-3.003 provides in relevant part:

. . . The standard for determining whether

the standards of another state . . . are as

high as the standards in Florida shall be

whether the written examination taken for

licensure in such other jurisdiction was an

examination prepared under the auspices of

the Profession Examination Services.

(emphasis supplied)

28. Neither Respondent nor DOAH can deviate from the terms

of Rule 64B17-3.003. An agency's deviation from a valid existing

rule is invalid and unenforceable. Section 120.68(7)(e)(2);

Federation of Mobile Home Owners of Florida, Inc. v. Florida

Manufactured Housing Association, Inc. , 683 So. 2d 586, 591-592

(Fla. 1st DCA 1996); Gadsden State Bank v. Lewis , 348 So. 2d 343,

346-347(Fla. 1st DCA 1977); Price Wise Buying Group v. Nuzum , 343

So. 2d 115, 116 (Fla. 1st DCA 1977).

29. Respondent argues that Rule 64B17-3.003 requires an

applicant to satisfy the educational requirements in Rule 64B17-

3.001(3) and therefore incorporates by reference the requirement

in the latter rule for Petitioner to satisfy the requirement in

Section 486.031(3)(a) to obtain a bachelor's degree in a course

of study approved by CAPTE. For reasons stated in paragraphs 42-

43, Respondent's argument suffers the same legal fallacy as that

in Rule 64B17-3.001(3)(a). Rule 64B17-3.003 cannot, by reference

to Rule 64B17-3.001(3)(a), impose a requirement not found in the

statute. See Section 120.52(8)(c) and cases cited in paragraph

42.

30. Respondent's legal argument that its position is

supported by reading Sections 486.031 and 486.081 in pari materia

is not persuasive. Sections 486.031(3)(a)-(c) are separate

disjunctive provisions that prescribe alternative requirements

for licensure. Section 486.031(3)(a) prescribes licensure

requirements for graduates of universities in the United States.

Section 486.031(3)(b) prescribes licensure requirements for

graduates of universities outside the United States. Section

486.031(3)(c) and 486.081 prescribe licensure requirements for

any applicant, such as Petitioner, who has passed a PES

examination other than the PES examination given in Florida. Any

other statutory construction of Sections 486.031 and 486.081

would be unreasonable and reduce the separate subsections to

nullities or redundancies. The legislature does not intend its

enactments to be redundant or a nullity. See , e.g. , North Miami

General Hospital v. Central National Life Insurance Company , 419

So. 2d 800, 802 (Fla. 3d DCA 1982); City of Indian Harbour Beach

v. City of Melbourne , 265 So. 2d 422, 423 (Fla. 4th DCA 1972)

(courts should avoid interpretation that renders legislatively

created provision ineffective or purposeless).

31. Respondent argues that its interpretation of Sections

486.031 and 486.081 is entitled to great weight because the Board

is the state agency responsible for administering those statutes.

The rule that gives great weight to an administrative

construction of a statute by the agency responsible for its

administration is limited to matters infused with agency

expertise.

32. The matter at issue in this proceeding is not infused

with agency expertise. It requires no technical expertise in

physical therapy. The Board's construction of Sections 486.031

and 486.081 requires only legal skills that do not enjoy the

presumption of validity applicable to matters of agency

expertise. Zopf v. Singletary , 686 So. 2d 680 (Fla. 1st DCA

1997), reh. denied ; SAVE the St. Johns River v. St. Johns River

Water Management District , 623 So. 2d 1193, 1202 (Fla. 1st DCA

1993).

33. Even if the Board's contention were infused with agency

expertise, the contention is clearly erroneous. The Board's

interpretation conflicts with the plain language of Sections

486.031 and 486.081. An agency's construction that conflicts

with the unambiguous language of a statute is clearly erroneous.

Legal Environmental Assistance Foundation, Inc. v. Board of

County Commissioners of Brevard County , 642 So. 2d 34, 36 (Fla.

1994); Hughes v. Variety Children's Hospital , 710 So. 2d 683, 685

(Fla. 3d DCA 1998); Arbor Health Care Company v. State, Agency

for Health Care Administration , 654 So. 2d 1020, 1021 (Fla. 1st

DCA 1995); Wingfield , 581 So. 2d at 197. The statute controls

any conflict.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order granting

Petitioner's request for a license in Florida as a physical

therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and

486.081.

DONE AND ENTERED this 13th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April, 2000.

COPIES FURNISHED:

Dr. Kaye Howerton, Executive Director

Board of Physical Therapy Practice

Department of Health

Division of Medical Quality Assurance

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0750

William Large, General Counsel

Department of Health

Bin A02

2020 Capitol Circle, Southeast

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Ann Cocheu, Esquire

Office of the Attorney General

Administrative Law Section

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Wilson Jerry Foster, Esquire

1342 Timberlane Road, Suite 101A

Tallahassee, Florida 32312-1775

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.