05-003128PL Department Of Health vs. Michael G. Westrope, P.T.A. Status: Closed Recommended Order on Friday, April 7, 2006.

Summary: Respondent falsified patient records by documenting services when no services were provided.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PHYSICAL THERAPY, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3128PL

)

M ICHAEL G. WESTROPE, P.T.A. )

)

Respondent. )

)

RECOMMENDED ORDER

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

on January 25 , 2006 , in Clearwater , Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Lynne A. Quimby - Pennock, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Louis Kwall, Esquire

K wall, Showers, Coleman

& Barack , P.A.

133 North Fort Harrison Avenue

Clearwater , Florida 33 755

STATEMENT OF THE ISSUES

Whether R espondent violated Subsection 486 . 125 (1)( e),

Florida Statutes (2004 ), 1 and, if so, what discipline should be

imposed.

PRELIMINARY STATEMENT

On June 15 , 2005, Pe titioner, Department of Health , Board

of Physical Therapy ( Department), filed an Administrative

Complaint against Respondent, Mich ael G. Westrope, P.T.A. ,

alleging that he violated Subsection 468 . 125 (1)( e ), Florida

Statutes. Mr. Westrope requested an administrative hearing, and

the case was forwarded to the Division of A dministrative

Hearings on August 29 , 2005, for assignment to an A dministrative

L aw J udge. On September 30, 2005, Mr. Westrope filed a Motion

for Brief Continuance , whic h was granted by order dated

October 5, 2005. The hearing was rescheduled for January 25,

2006.

Prior to the final hearing, the parties submitted a Joint

Prehearing Stipulation, which contained facts to which the

parties agreed. Those facts , which are contained in Section E

of the Joint Prehearing Stipulation , are incorporated into this

Recommended Order to the extent relevant.

At the final hearing, the Department called the following

witnesses: D.D. ; Michelle Hulse ; Catherine Page, P.T. , Ph.D. ,

M.P.H .; Gaspard de Laaf , P.T. ; Tammy Hain , R.N. ; and

Robert Hudson , O.T . P etitioner's Exhibits 1 through 8 were

admitted into evidence .

Mr. Westrope test ified on his own behalf and presented

Tammy Hain and Robert Hudson as witnesses. Mr. Westrope did not

offer any exhibits into evidence.

The official Transcript was filed on February 1 3 , 200 6.

The parties timely filed their Pro posed Recommended Order s ,

which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the

regulation of medicine pursuant to Chapters 20, 456, and 458,

Florida Statutes.

2. Mr. Westrope is , and was at all tim es material to this

proceeding, a licensed physic al therapy assistant in the State

of Florida, having been issued license number P T A 1170 .

3. Beginning in or about September 2004, D. D. was being

provided physical therapy services through Girling Health Car e,

Incorporated (Girling). Girling contracted with Rehab Action,

Incorporated (Rehab) to provide home health physical therapy to

p atient s. Rehab contracted with Mr. Westrope to perform the

physical therapy in the patients' homes.

4. In or about Septembe r 2004, Mr. Westrope was assigned

to provide physical therapy to D.D. , who had undergone a

complete knee replacement. D.D. had been assessed by

Mr. Westrope’s supervising physical therapist , Gaspard de Laaf ,

on September 29, 2004, prior to Mr. Westrope b eginning his

physical therapy services on September 30, 2004.

5. Mr. Westrope was required by Rehab to complete a

visitation slip at the end of each physical therapy session.

Mr. de Laaf had provided instruction to M r. Westrope on how to

complete the for m. Mr. Westrope would send the completed form

to Mr. de Laaf, who reviewed the form and sent i t to Girling for

reimbursement.

6 . When Mr. Westrope provided physical therapy to D.D.,

she would lie on her bed and perform therapy exercises, and then

move i nto the kitchen where Mr. Westrope would measure the bend

in her knee. When each session was over, Mr. Westrope would

complete a visit slip for the treatment , and D.D. signed them to

verify that she received the services. D.D. is visually

impaired and ca n only see light. In order to sign the forms,

D.D. requested Mr. Westrope to place the forms near the end of

the kitchen table so that she could align her arm with the table

edge so that her signature would be in a straight line. D.D.

always signed her s ignature as " D.A.D. " D.D. prided herself on

her independence and did not allow anyone else to sign the visit

slips for her.

7 . Mr. Westrope provided physical therapy services to D.D.

on September 30 and October 1, 5, 6, 8, 12, 15, and 22, 2004.

Mr. de L aaf evaluated D.D. and provided physical therapy

services to her on October 25, 2004. Mr. Westrope provided

services to D.D. on October 28, 2004.

8 . Mr. Westrope completed and submitted v isit s lip

documentation for physical therapy treatment of D.D. , w hich he

claimed to have provided on October 16, 2004 ; October 18, 2004 ;

October 20, 2004 ; October 30, 2004 ; and November 1, 2004.

However, Mr. Westrope did not provide services to D.D. on those

da tes .

9. On or about November 3, 2004, D.D. contacted Gir ling

complaining that she had not received physical therapy from

Mr. Westrope in a while . On or about November 4 , 2004,

Mr. de Laaf was notified by Girling regarding the complaint it

received from D.D. Mr. de Laaf then prohibited Mr. Westrope

from seei ng any Girling patients after Girling indicated that it

did not want Mr. Westrope performing any of its services. Mr.

de Laaf then resumed the treatment of D.D.

1 0 . O n or about November 5, 2004, Tammy Hain , R.N. , and

Rob Hudson, O.T., who are supervisors employe d by Girling,

visited D.D. to verify that she had not been receiv ing physical

therapy from Mr. Westrope on October 16, 2004 ; October 18, 2004 ;

October 20, 2004 ; October 30, 2004 ; and November 1, 2004. D.D.

verified that she had not received servi ces on those dates.

1 1 . D.D.'s daughter has been assisting D.D. with her

financial transactions for 15 years and is familiar with D.D. 's

signature. At the final hearing, D.D.'s daughter reviewed for

the first time the visit slips submitted by Mr. Westrop e for

services to D.D. After reviewing the visit slips, D.D.'s

daughter concluded that the signatures on t he visit slips for

October 16, 2004 ; October 18, 2004 ; October 20, 2004 ;

Octobe r 30, 2004 ; and November 1, 2004, were not written by D.D.

D.D.'s da ughter verified that D.D. always uses her middle

initial “A” when signing her signature . The signature s on the

disputed dates do not contain D.D.'s middle initial and are

different in appearance from the signatures on the vis it slips

on which Mr. Westrope documented services that he did provide to

D.D.

1 2 . On five occasions d uring the time that Mr. Westrope

was providing services to D.D., Robert Hudson also provided

occupational therapy services to D.D . on five occasions. At the

end of the therapy sess ions with Mr. Hudson, D.D. signed the

visit slips “D.A.D.”

13. T he parties stipulated that if Mr. Westrope did not

provide the services to D.D. on the dates he indicated on the

visit slips, then Mr. Westrope violated the rules of the

Department and Subse ction 486.125(1)(e), Florida Statutes.

CO NCLUSIONS OF LAW

14 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2005 ).

15 . The Department has the b urden to establish by clear

and convincing evidence the allegations in the Administrative

Complaint. Department of Banking and Finance v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996). The Department has alleged

that M r. Westrope violated Subsection 486 . 125 (1)( e ), Florida

Statutes, which p rovides that the following act constitute s

grounds for disciplinary action:

Failing to maintain acceptable standards

of physical therapy practice as set forth by

the Board in rules adopted pursuant to

Chapter 486, Florida Statutes.

16. Florida Administrative Code Rule 64B17 - 6.001(2)(e)

p rovides:

[P]hysical therapy assistants shall not

use or participate in the use of any form of

communication containing false , fraudulent,

misleading, deceptive, unfair, or

sensat ional statement or claim, nor use

bribery in any form, nor use false

advertising, nor misrepresentation o f

services or self, nor engage in other

unprofessional conduct, including, but not

limited to,

1. Inaccurately recorded, falsified, or

altered pati ent records[.]

1 7 . The Department alleged that Mr. Westrope violated

Subsection 4 8 6 . 125 (1)( e), Florida Statutes, when he "falsely

documented physical therapy treatments to Patient D.D. when he

failed to perform the treatment modalities.” The Department has

established this allegation by clear and convincing evidence.

The documentation presented by the Department demonstrates that

the visit slips did not contain D.D.’s authentic signature for

the treatment dates October 16, 2004 ; October 18, 2004 ;

Octob er 20, 2004 ; October 3 0, 2004 ; and November 1, 2004.

Mr. Westrope did not provide services on those dates , but

submitted visit slips showing that he did provide services on

those dates . Thus, Mr. Westrope failed to maintain acceptable

standards of physi cal therapy practice by falsifying D.D. 's

patient records in violation of Florida Administrative Code Rule

64B17 - 6.001(2)(e)1. and Subsection 486 .125(1)(e) , Florida

Statutes.

1 8 . Florida Administrative Code Rule 64B17 - 7.001 (1)(e)

provides a range of penal ties for violations of Subsection

486.125(1)(e), Florida Statutes, and states:

Section 486.125(1)(e) or 456.072(1)(b),

F.S.: Failure to maintain acceptable

standards of practice as set forth in rules -

from a minimum fine of $1,000 and a letter

of concern , up to a maximum fine of $6,000

and/or two years of suspension followed by

two years of probation. . . .

RECOMMENDATION

Based on the foregoing f indings of f act and c onclusions of

l aw, it is

RECOMMENDED that a f inal o rder be entered finding that

Michael G. Westrope, P.T.A. , violate d Subsection 4 8 6 . 125 (1)( e ),

Florida Statutes, and imposing a penalty of a $ 2 ,000 fine and a

six - month suspension followed by one y ear of probation with the

terms to be set by the Department at the conclusion of the

suspension p eriod and requiring Respondent to complete five

hours of Continuing Education in physical therapy medical

records documentation .

DONE AND ENTER ED this 7 th day of April, 2006 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 7 th day of April , 2006 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Flori da

Statutes shall be to the 2004 version.

COPIES FURNISHED :

Lynne A. Quimby - Pennock, Esquire

Department of Health

40 52 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Dr. Kaye Howerton, Executive Director

Board of Physical Therapy

Department of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 1701

Louis Kwall, Esquire

Kwall, Showers, Colem an

& Barack, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 33755

Tim othy M. Cerio, 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 f inal o rder in this case.