01-002928PL Department Of Health, Board Of Physical Therapy Practice vs. Raymond H. Cralle Status: Closed Recommended Order on Tuesday, November 27, 2001.

Summary: State failed to prove record keeping violation by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF PHYSICAL THERAPY PRACTICE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2928PL

)

RAYMOND CRALLE, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this ca se

on September 28, 2001, by video teleconference at sites in West

Palm Beach and Tallahassee, Florida, by Florence Snyder Rivas, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Mary Deni se O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building Three

Tallahassee, Florida 32308

For Respondent: Richard Willits, Esquire

2290 10th Avenue North, Suite 404

Lake Worth, Florida 33461

STATEMENT OF THE ISSUE

Whether the allegations in the Amended Administrative

Complaint have been proven by clear and convincing evidence and,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated May 8, 200 1,

Petitioner, Department of Health, Board of Physical Therapy

Practice, alleged that Respondent, Raymond Cralle, violated

Rule 64B17 - 6.001(3)(c), Florida Administrative Code, which

prohibits delegating activities that require the special

knowledge and jud gment of the physical therapist; Rule 64B17 -

6.001(5)(d), Florida Administrative Code, which prohibits

delegating portions of the skilled physical therapy functions to

lesser trained health personnel; Rule 64B17 - 6.007(5)(b)(2),

Florida Administrative Code, which prohibits delegating either

evaluation or reevaluation of patients; and Rule 64B17 -

6.007(6)(c), Florida Administrative Code, which prohibits

allowing unlicensed personnel to document progress notes other

than tasks and activities of a patient.

The Amended Administrative Complaint did not specifically

charge a violation of Rule 64B17 - 6.007(6)(b)(2), Florida

Administrative Code, which prohibits delegating the assessment

of the progress of the patient in relationship to the plan of

care; however, t his issue was tried by consent.

The allegation pertaining to Rule 64B17.6.007(5)(b)(2),

Florida Administrative Code, was dismissed prior to the hearing.

At the hearing, the Petitioner presented the testimony of

Helen Mesa and Linda Nash. Petition er offered two exhibits into

evidence.

Respondent testified in his own behalf and also presented

the testimony of Alvin Ponce De Leon, Kenneth Amsler, and Laurie

Poloskey. Respondent offered two exhibits into evidence.

A transcript of the hearing was fi led on October 12, 2001.

Proposed Recommended Orders were timely filed on November 15,

2001, and have been carefully considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Department of Health, Board of Physical

Therapy Practice, (Petitioner or Board) is the state agency that

licenses and has regulatory jurisdiction of physical therapists.

2. At the time of the hearing, Respondent Raymond Cralle

(Cralle) had practiced physical therapy for three decades and

was known to c olleagues as a competent and innovative

professional. He holds licenses in Florida, Virginia, Iowa, and

other states by reciprocity, and also holds a specialized

certification in physical therapy for persons suffering from

injuries to the brain and spinal cord.

3. Cralle received his academic training from the

University of Iowa’s School of Allied Health. Upon graduation,

he began a hospital based practice at Good Samaritan Hospital in

West Palm Beach, Florida, and thereafter built a large and

successfu l private practice in the Greater West Palm Beach area.

4. Over the years, Cralle was also active in professional

activities. In addition to speaking, writing and consulting,

Cralle was heavily involved in legislative advocacy work on

behalf of his profe ssion. Throughout his career, his clinics

have usually had some type of formal or informal relationship

with schools of physical therapy, offering opportunities for

students to intern or to perform other types of work.

5. By 1992, Cralle was operating 13 clinics. That year,

he sold some of his practice to HealthSouth and the rest to

Novacare, two publicly traded companies.

6. Not ready to retire, Cralle opened another private

practice in Delray Beach, Florida.

7. At the time of the events giving rise to the charges

against Cralle, his clinic had space to treat eight patients at

a time. In addition to Cralle, three physical therapists, one

occupational therapist, and one physical therapy intern were

working regularly on the premises.

8. In addition, a ides were employed to perform non -

professional chores such as setting up equipment, assisting

patients in making their way to treatment rooms, draping

patients, and the like.

9. For approximately three months in the year 2000, the

precise dates of which a re not reflected in the record, physical

therapy student Helen Mesa (Mesa) was employed as an aide in

Cralle’s clinic.

10. When treating patients, Cralle was frequently

accompanied by a colleague, either an aide or a more highly

trained staffer, who would be asked to enter notes on the

patient’s chart. The notes were dictated by Cralle. Cralle

used staff this way to avoid having to interrupt treatment in

order to document treatment.

11. When accompanied by student interns or aides such as

Mesa, the dict ation served a teaching function as well.

12. Mesa's brief tenure at Cralle’s clinic is consistent

with her pattern of unstable employment. Since she left

Cralle’s employ, she has worked in at least three jobs,

including one in a supermarket and two inv olving physical

therapy, and each of these jobs lasted roughly three months.

13. Mesa’s instability is further evidenced by the fact

that initially she resigned from Cralle’s clinic, saying she

could not handle the stress of the job and single motherhood.

Cralle hired a replacement while Mesa worked out her notice.

Then, Mesa changed her mind and asked to stay. Cralle, having

promised her job to another, said no.

14. The circumstances surrounding her departure may or may

not be the cause of Mesa’s hosti lity toward Cralle, but the

hostility was unmistakable during her testimony in this case.

Her demeanor under oath was prosecutorial. She would volunteer

information and argue with defense counsel about what questions

he should be asking her.

15. As a st udent, Mesa was taught a method of documenting

patient progress known as SOAP notes. The acronym stands for

Subjective - Objective - Assessment - Plan.

16. Under the SOAP methodology, the “S(ubjective)” portion

includes everything that the patient says about how he feels.

The “O(bjective)” portion states what was done with the patient.

The “A(ssessment)” portion states what progress the patient is

making toward short or long - term goals. The “P(lan)” portion

reflects what is expected by or at the next treatm ent.

17. Cralle does not like the SOAP form of note - taking and

generally does not use it in his practice. No law or rule

requires the use of the SOAP format in documenting, or

“charting” patient progress.

18. However, when assisted by Mesa, Cralle often used the

SOAP format when dictating notes, because it was familiar to

Mesa from her studies.

19. Mesa is the only complaining witness. At hearing her

claims about Cralle’s charting practices went well outside the

boundaries of the amended administrative complaint. She claimed

that she worked on patients with no supervision and that some of

“her” patients did not have an evaluation sheet in their chart,

although such sheets are the most basic tool of physical therapy

practice.

20. Mesa also provided the only testimony in support of

the Board's primary charge, which is that she wrote entire SOAP

notes on charts without any input, let alone dictation, from

Cralle or other qualified personnel.

21. In addition, Mesa claimed that none of the patient

files in which she wrote notes had been signed by Cralle the

next time she worked with that patient. Yet, it is undisputed

that of the 103 partial patient charts reviewed by the parties

during discovery, all but about 15 percent of the patient

entries in Mesa's h andwriting had been signed off on by Cralle.

22. Of 17 unsigned notes placed in evidence, at least some

reflect a degree of technical knowledge and vocabulary that Mesa

did not have. Her claim to have written each of them, entirely

on her own, is not cr edited.

23. There was no evidence as to whether, or under what

circumstances, a physical therapist is required to initial

patient notes, and none of the allegations of the Amended

Administrative Complaint allege errors or omissions with respect

to Cralle 's signature, initials, of lack thereof.

24. There was no evidence that any or all of the alleged

charting deficiencies compromised patient care or safety in any

way.

25. Rather, as Petitioner’s attorney stated during the

questioning of its only other w itness, physical therapy expert

Linda Nash (Nash), “As you know, this case is about what duties

a physical therapist can delegate to unlicensed personnel . . .

what are [a] physical therapist’s responsibilities as far as the

record keeping itself?”

26. Na sh’s answer was instructive. She replied:

Well, we have a responsibility to document

everything and, and document it in a form be

it SOAP or narrative or any way that

demonstrates that that patient, where they

were the moment that they came in and how

they were continuing to progress. For

several reasons. Number one, for your own

benefit because if you have to defend

yourself in a case you have, you know, notes

that are documented as to what went on and

what you did for insurance purposes.

Insurance companies don’t like to pay if

they’re, if the patient is not making

progress. And you need to be able to

document those kinds of things in the notes.

27. After revealing that her primary interest in good

documentation is as a means of covering herself in malpractice

litigation or to obtain insurance reimbursement, a theme which

would recur again on her cross - examination (in her words, “so

that I covered my tail”), Nash eventually turned her attention

to issues pertinent to the state’s interest in prote cting the

public’s health and safety, but provided no testimony indicating

that any or all of Cralle's charts constituted a danger to any

patient.

28. Nash acknowledged that in her years of experience, she

has never seen a "perfect chart."

29. Nash, as well as the experts who testified on behalf

of Cralle, agreed that it would be improper to delegate to an

unlicensed aide the task of assessing the patient and

determining the content of a plan of care. The most that could

properly be delegated is the doc umentation of tasks and

activities performed by patients in the presence of the

unlicensed person.

30. It was also undisputed among the experts that there is

nothing improper about dictating notes to an unlicensed aide.

31. The uncorroborated testimony o f Mesa that she was

delegated tasks which may be lawfully performed only by a

physical therapist is not worthy of belief when evaluated in the

context of Cralle’s 30 years as a successful and well - regarded

physical therapist.

32. Cralle had a number of as sociates and employees of

long standing whose qualifications were entirely appropriate for

all aspects of patient care and record keeping. It is illogical

to assume that Cralle would delegate vital functions to a brand

new employee with no experience, and there is no credible

evidence that he did.

33. Petitioner's expert Nash realized that because the

state’s entire case rested upon Mesa’s credibility, it would be

important ”. . . to insure that no misrepresentations [were]

provided, the office manager as well as the current PT techs and

PTs are interviewed for accuracy.” Petitioner did not follow - up

on that recommendation.

34. Had those individuals been interviewed, and additional

office records been examined, the true circumstances surrounding

Cralle's record keeping practices could have been ascertained.

In the absence of such evidence and witnesses, there is no clear

and convincing evidence of the Rule violations alleged.

35. Mesa claimed that two physical therapists working in

Cralle’s clinic instr ucted Mesa not to write in the charts of

their patients, and, further, that these therapists complained

to Cralle about his practice of permitting Mesa to write in his

charts. Petitioner offered no corroboration for these claims,

even though one of the ph ysical therapists to whom Mesa's

testimony on this matter referred was present and testifying on

behalf of Cralle.

36. A number of notes in Mesa's handwriting included

frequent use of phrases such as “patient tolerated treatment

well due to no complaints” and “continue with plan of care.”

These are not models of informative note writing, but neither

are they clear and convincing evidence of improper delegation

when viewed in light of the entire record.

CONCLUSIONS OF LAW

37. The Division of Administrat ive Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.57, Florida Statutes.

38. Rule 64B17 - 6.007, Florida Administrative Code, states:

(6) The physical therapist shall not

delegate:

* * *

(b) Those activities that require the

special knowledge, judgment, and skills of

the physical therapist assistant, which

include:

* * *

2. Assessment of the progress of the

patient in relationship to the plan of the

case.

* * *

(c) Patie nt progress notes. The

unlicensed personnel may document tasks and

activities of patients during the patient

treatment.

39. Rule 64B17 - 6.001, Florida Administrative Code, states:

(3) Physical Therapist Responsibilities.

* * *

(c) The physic al therapist shall not

delegate any function or task which requires

the skill, knowledge, and judgment of the

physical therapist.

40. Rule 64B17 - 6.001, Florida Administrative Code, states:

(5) Physical Therapist – Physical

Therapist Assistant Responsi bilities and

Supervisory Relationships.

* * *

(d) The physical therapist shall not

delegate portions of the skilled physical

therapy functions or tasks to any lesser

trained health personnel than the physical

therapist assistant.

41. Petitioner ha s the burden of proving by clear and

convincing evidence that Cralle has violated any or all of the

Rules charged. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1st

DCA 1987). As to each violation charged, Petitioner has failed

to meet that burden.

RECOMMEN DATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Board of Physical Therapy

Practice enter a final order dismissing the Amended

Administrative Complaint against Raymond Cralle.

DONE AND ENTERED th is 27th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of November, 2001.

COPIES FURNI SHED:

Mary Denise O'Brien, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building Three

Tallahassee, Florida 32308

Richard Willits, Esquire

2290 10th Avenue North, Suite 404

Lake Worth, Florida 33461

Theodore M. Henderson, Agency Cle rk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. Kaye Howerton, Executive Director

Board of Physical Therapy Practice

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

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.