07-003370 Terry Buckley vs. Board Of Physical Therapy Practice Status: Closed Recommended Order on Wednesday, January 16, 2008.

Summary: Petitioner`s request for waiver/variance from statutory examination limitation can not be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY BUCKLEY , )

)

Petitioner , )

)

vs. ) Case No. 07 - 3370

)

BOARD OF PHYSICAL THERAPY )

PRACTICE , )

)

Respondent . )

)

RECOMMENDED ORDER

On October 11, 2007, a formal administrative hearing in

this case was held by video teleconference between Tallahassee

and Fort Myers, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitio ner: Patrick E. Geraghty, Esquire

Geraghty Dougherty & Edwards, P.A.

Post Office Box 1605

Fort Myers, Florida 33902 - 1605

For Respondent: Reginald D. Dixon, Esquire

Department of Legal Affairs

The Capitol, PL - 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in the case is whether Terry Buckely (Petitioner)

should be granted a variance or waiver pursuant to

Section 120.542, Florida Statutes (2007), from the provisions of

Florida Administrative Code Rule 64B17 - 3.003 which limits the

number of times a candidate for licensure as a physical

therapist can take a national examination. The cited rule

implements Section 486.051, Florida Statutes (2007).

PRELIMINARY STATEMENT

The Petitioner is an applicant for licensure as a physical

therapist by endorsement. On February 16, 2007, the Petitioner

filed a petition for variance from, or waiver of, Florida

Administra tive Code Rule 64B17 - 3.003, seeking to have the Board

of Physical Therapy (Respondent) grant a waiver or variance from

the prohibition against licensure of an applicant who failed to

pass the national examination in five attempt s.

On April 24, 2007, the Re spondent denied the Petitioner's

request to receive a waiver or variance from the restrictions

set forth at Florida Administrative Code Rule 64B17 - 3.003 .

By Petition for Hearing dated May 21, 2007, the Petitioner

disputed the Respondent's decision and requ ested a formal

hearing. The Respondent forwarded the request to the Division

of Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner testified on his own behalf

and had one exhibit admitted into evidence. The Respondent

presented the testimony of one witness and had two exhibits

admitted into evidence. The Petitioner was granted leave to

file deposition transcripts of five additional witnesses, which

we re filed on November 6, 2007.

A T ranscript of the hear ing was filed on October 26, 2007.

Both parties filed Proposed Recommended Orders that were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an applicant for licensure by

endors ement as a physical therapist .

2. The Petitioner graduated in 1994 with a Bachelor 's of

Science d egree from Youngstown State University in Youngstown,

Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale.

3. After receiving the b achelor's d egree, the Petitioner

attended Edison Community College in Fort Myers, Florida, and

completed several courses including two in chemistry and two in

physics wit h a GPA of 3.2 on a 4.0 scale.

4. The Petitioner next graduated in 2003 with a m aster's

d egree in p hysical t herapy from Florida Gulf C oast University in

Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale.

5. The Petitioner completed his college education without

the provision of any special services or accommodations related

to any disability or disorder.

6. After receiving the m aster's d egree, the Petitioner

sought licensure in Florida as a physical therapist and was

approved to sit for the national examination.

7. In August 2003, December 2003, April 2004 , and

July 2004, the Petitioner took the national examination in

Flori da and failed on each of the four attempts.

8. The Petitioner subsequently obtained the services of

Dr. Stephen P. Schengber, a licensed psychologist and clinical

neuropsychologist, whose neuropsychological evaluation was

admitted into evidence without objection. Dr. Schengber

apparently administered a battery of tests to the Petitioner

and, in relevant part, rendered a written report which included

the following summary and recommendation:

Overall, the current test results are

consistent with a mild vi sual attentional

disorder, as well as a severe disorder of

reading comprehension. There were also some

scattered areas of neuropsychological

dysfunction, but the results were quite

consistent with the two main areas of

dysfunction. In addition, the test results

were consistent with a mild dysthymic

condition.

Due to the patient's history, as well as the

current results of the neuropsychological

evaluation, it is my professional and

clinical opinion that Mr. Buckley should be

entitled to special accommo dations in the

administration of his licensure exam to

become a licensed physical therapist. These

accommodations should include the

opportunity to retake the past four failures

on the licensure examination, as well as the

provision of extra time to compl ete the

exam.

9. Apparently based on Dr. Schengber's recommendation, the

Petitioner took the June 2005 national examination in Florida

and was provided with time and a half to complete the exam, b ut

failed on his fifth attempt.

10. The Petitioner subs equently applied to take the

national examination in Michigan, which did not impose any

limitation on the number of times an applicant could sit for the

examination. The Petitioner took the October 2005 examination

in Michigan and was provided with time a nd a half to complete

the exam, but failed on this sixth attempt.

11. After failing to pass the national exam in Michigan,

the Petitioner applied to take the national examination in

Colorado, which also imposed no limitation on the number of

times an ap plicant could sit for the examination. The

Petitioner took the May 2006 examination in Colorado and was

provided with time and a half to complete the exam, but failed

on this seventh attempt.

12. In August 2006, the Petitioner sat for the national

exam in Colorado, was provided with time and a half to complete

the exam, and passed the test on the eighth attempt.

13. After passing the examination, the Petitioner obtained

licensure in Colorado, but has never practiced physical therapy

in Colorado ; and , shortly after becoming licensed in Colorado,

the Petitioner applied for Florida licensure by endorsement.

14. At the hearing, the Respondent presented the testimony

of Zohre Bahraymi, Ph.D., accepted as an expert in examination

development and testing .

15. Dr. Bahraymi testified that the first score received

on an examination is an accurate reflection of an applicant's

entry level knowledge of the material being tested, but that

"since they might have had a bad day and something happens and

they did get a lower score . . . it is fair to let them retake

the test once or twice." Dr. Bahraymi stated that the more

often a person takes an examination, the higher a score should

be as an applicant's exposure to the content of the test

increased.

16. Dr. B ahraymi also testified that a person with a

disability would be able to receive an accommodation, including

additional time, and that she would anticipate scores to

increase in the event that a person with previous exposure to

the content of the test also received additional time to

complete the examination.

17. The Petitioner's test scores increased on each but the

fourth attempt at the examination.

18. No evidence was offered contrary to Dr. Bahraymi's

testimony , and it is credited.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007 ).

20. As the applicant for the variance or waiver, the

Petitioner has the burden of es tablishing entitlement to the

relief sought by a preponderance of the evidence. Dept. of

Banking and Finance, Div. of Securities and Investor Protection

v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Florida

Department of Transportation v. J.W.C. Co. , 396 So. 2d 778 (Fla.

1st DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). In this case , the

burden has not been met.

21. Section 120.542, Florida Statutes (2007) , provides in

relevant part as f ollows:

120.542 Variances and waivers. --

(1) Strict application of uniformly

applicable rule requirements can lead to

unreasonable, unfair, and unintended results

in particular instances. The Legislature

finds that it is appropriate in such cases

to a dopt a procedure for agencies to provide

relief to persons subject to regulation. A

public employee is not a person subject to

regulation under this section for the

purpose of petitioning for a variance or

waiver to a rule that affects that public

employe e in his or her capacity as a public

employee. Agencies are authorized to grant

variances and waivers to requirements of

their rules consistent with this section and

with rules adopted under the authority of

this section. An agency may limit the

duration of any grant of a variance or

waiver or otherwise impose conditions on the

grant only to the extent necessary for the

purpose of the underlying statute to be

achieved. This section does not authorize

agencies to grant variances or waivers to

statutes or to rules required by the Federal

Government for the agency's implementation

or retention of any federally approved or

delegated program, except as allowed by the

program or when the variance or waiver is

also approved by the appropriate agency of

the Feder al Government. This section is

supplemental to, and does not abrogate, the

variance and waiver provisions in any other

statute.

(2) Variances and waivers shall be granted

when the person subject to the rule

demonstrates that the purpose of the

underlyi ng statute will be or has been

achieved by other means by the person and

when application of a rule would create a

substantial hardship or would violate

principles of fairness. For purposes of

this section, "substantial hardship" means a

demonstrated econ omic, technological, legal,

or other type of hardship to the person

requesting the variance or waiver. For

purposes of this section, "principles of

fairness" are violated when the literal

application of a rule affects a particular

person in a manner signi ficantly different

from the way it affects other similarly

situated persons who are subject to the

rule.

* * *

(8) An agency shall grant or deny a

petition for variance or waiver within 90

days after receipt of the original petition,

the last i tem of timely requested additional

material, or the petitioner's written

request to finish processing the petition.

A petition not granted or denied within 90

days after receipt of a completed petition

is deemed approved. A copy of the order

granting or denying the petition shall be

filed with the committee and shall contain a

statement of the relevant facts and reasons

supporting the agency's action. The agency

shall provide notice of the disposition of

the petition to the Department of State,

which sha ll publish the notice in the next

available issue of the Florida

Administrative Weekly. The notice shall

contain the name of the petitioner, the date

the petition was filed, the rule number and

nature of the rule from which the waiver or

variance is sough t, a reference to the place

and date of publication of the notice of the

petition, the date of the order denying or

approving the variance or waiver, the

general basis for the agency decision, and

an explanation of how a copy of the order

can be obtained. The agency's decision to

grant or deny the petition shall be

supported by competent substantial evidence

and is subject to ss. 120.569 and 120.57.

Any proceeding pursuant to ss. 120.569 and

120.57 in regard to a variance or waiver

shall be limited to the agency action on the

request for the variance or waiver , except

that a proceeding in regard to a variance or

waiver may be consolidated with any other

proceeding authorized by this chapter.

(Emphasis supplied)

22. Section 120.52, Florida Statutes (2007 ) , provides the

following relevant definitions:

(18) "Variance" means a decision by an

agency to grant a modification to all or

part of the literal requirements of an

agency rule to a person who is subject to

the rule. Any variance shall conform to the

s tandards for variances outlined in this

chapter and in the uniform rules adopted

pursuant to s. 120.54(5).

(19) "Waiver" means a decision by an agency

not to apply all or part of a rule to a

person who is subject to the rule . Any

waiver shall conform t o the standards for

waivers outlined in this chapter and in the

uniform rules adopted pursuant to

s. 120.54(5). (Emphasis supplied)

23. The limitation on the number of times an applicant for

licensure in Florida can sit for examination is established a t

Section 486.051, Florida Statutes (2007) , which provides as

follows:

The examinations of an applicant for

licensing as a physical therapist shall be

in accordance with rules adopted by the

board, to test the applicant's

qualifications and shall include t he taking

of a test by the applicant. If an applicant

fails to pass the examination in three

attempts, the applicant shall not be

eligible for reexamination unless she or he

completes additional educational or training

requirements prescribed by the board . An

applicant who has completed the additional

educational or training requirements

prescribed by the board may take the

examination on two more occasions. If the

applicant has failed to pass the examination

after five attempts, she or he is no longer

e ligible to take the examination. (Emphasis

supplied)

24. The Respondent has no authority under the provisions

of Section 120.542, Florida Statutes (2007) , to grant a waiver

or variance to requirements imposed by statute, even if the

request for waiver o r variance was otherwise warranted.

25. Section 486.081, Florida Statutes ( 2007 ), provides in

relevant part as follows:

486.081 Physical therapist; issuance of

license without examination to person

passing examination of another authorized

examining boa rd; fee. --

(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 p hysical

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

coun try are determined by the board to be as

high as those of this state, as established

by rules adopted pursuant to this chapter .

Any person who holds a license pursuant to

this section may use the words "physical

therapist" or "physiotherapist," or the

lett ers "P.T.," in connection with her or

his name or place of business to denote her

or his licensure hereunder. (Emphasis

supplied )

26. Florida Administrative Code Rule 64B17 - 3002 identifies

the specifically - endorsed licensure examination and provides as

follows:

(1) The licensure examination shall be the

National Physical Therapy Examination (NPTE)

for Physical Therapists developed by the

Federation of State Boards of Physical

Therapy. An applicant for licensure by

examination must have obtained a passi ng

score on the NPTE examination within the

five (5) years immediately prior to the

filing of the application.

(2) Applicants must obtain a passing score

on the National Physical Therapy Examination

for Physical Therapists developed by the

Federation of State Boards of Physical

Therapy.

(3) An applicant must reapply in order to

retake the examination. If an applicant

wishes to take the examination for the

fourth time, the applicant must submit to

the Board for approval satisfactory evidence

of having s uccessfully completed the

following since the last taking of the

examination: successful completion of a

course of study or internship designed to

prepare the applicant for the physical

therapy examination. An applicant who has

completed these additional requirements may

take the examination on two more occasions.

(Emphasis supplied)

27. Florida Administrative Code Rule 64B17 - 3.003 (the rule

to which the variance or waiver is being sought) addresses the

issue of licensure by endorsement and provides as follows:

64B17 - 3.003 Licensure by Endorsement.

An applicant demonstrating that he or she

meets the requirements of Rule 64B17 - 3.001,

F.A.C., may be licensed to practice physical

therapy by endorsement by presenting

evidence satisfactory to the Board th at the

applicant has active licensure in another

jurisdiction and has passed an examination

before a similar, lawful, authorized

examining board in physical therapy in such

other jurisdiction if their standards for

licensure are as high as those maintained in

Florida. The standard for determining

whether the standards of another

jurisdiction are as high as the standards in

Florida shall be whether the written

examination taken for licensure in such

other jurisdiction by applicants meeting

Florida’s minimum educational qualifications

was through the national physical therapy

examination provider certified by the

Department. An applicant who has failed to

pass the National Physical Therapy

Examination for Physical Therapists by or on

the fifth attempt, regar dless of the

jurisdiction through which the examination

was taken, is precluded from licensure .

(Emphasis supplied)

28. In this case, the evidence fails to establish that the

standards for licensure in Michigan and Colorado are as high as

those adopted in Florida. Although the same examination is

utilized in all three states, Florida limits the number of times

an applicant can si t for the examination to five.

29. The evidence establishes that an applicant's initial

test score is an accurate reflection of entry level knowledge

and that a second attempt is warranted to address situations

where a test - taker had a "bad day." An applicant's test score

is expected to increase as familiarity with test content

expands. Permitting an applicant an unlimited num ber of

attempts to pass an examination would likely result in increased

passage rates and fails to establish that the standards in

states permitting unlimited examination attempts are as high as

th ose adopted in Florida. Accordingly the Florida Legislatur e

has by statute limited the number of attempts an applicant has

to pass the examination, and the Respondent has extended that

limitation by rule to applicants see king licensure by

endorsement.

30. The Petitioner has specifically not challenged the

validi ty of Florida Administrative Code Rule 64B17 - 3.003;

accordingly, the rule is presumed to be valid, and this Order

does not address whether the rule is an invalid exercise of

delegated legislative authority. Clemons v. State Risk

Management Trust Fund , 870 So. 2d 881, 884 (Fla. 1st DCA 2004)

(Benton, J., concurring opinion) .

31. As stated at Section 120.542, Florida Statutes (2007) ,

"variances and waivers shall be granted when the person subject

to the rule demonstrates that the purpose of the underlying

s tatute will be or has been achieved by other means by the

person and when application of a rule would create a substantial

hardship or would violate principles of fairness."

32. The evidence fails to establish that the purpose of

the underlying statute has been achieved by other means. The

purpose of the testing requirement is presumably to require an

applicant for licensure in Florida to demonstrate a basis of

academic knowledge prior to licensure. The Petitioner offered

the deposition testimony of fi ve persons for whom, or with whom,

he is employed, which suggest that at least in their opinions,

the Petitioner is capable of acceptably providing physical

therapy services to patients to the extent that the deponents

have observed the Petitioner. The de position testimony is

insufficient to establish that the Petitioner has the entry

level of academic knowledge which would be included on the

national examination. The licensing statute does not require a

demonstration of proficiency at vari ous types of ph ysical

therapy.

33. Finally, the Petitioner has asserted that the Florida

limitation of the number of attempts to pass the exam violates

federal disability law. This assertion is outside the

jurisdiction of this forum and has not been addressed herein.

R ECOMMENDATION

Based on the foregoing F indings of Fact and Conclusions

of Law, it is RECOMMENDED that the Respondent enter a f inal

o rder denying the Petitioner's request for variance from , or

waiver of , the provisions of Florida Administrative Code

Rule 64 B17 - 3.003.

DONE AND ENTERED this 16th day of January , 2008 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

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 16th day of January , 2008 .

COPIES FURNISHED :

Patrick E. Geraght y, Esquire

Geraghty Dougherty & Edwards, P.A.

Post Office Box 1605

Fort Myers, Florida 33902 - 1605

Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Susie K. Love, Executive Director

Board of Physical Therapy Practice

Department of Health

4052 Bald Cypress Way, Bin C - 05

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 0 2

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 c ase.