12-003610PL Department Of Health, Board Of Massage Therapy vs. Yuping Jiang, L.M.T. Status: Closed Recommended Order on Tuesday, June 11, 2013.

Summary: DOH did not prove that licensee obtained massage therapy license by disciplinable means.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MASSAGE THERAPY ,

Petitioner ,

vs. Case No. 12 - 3610PL

YUPING JIANG, L.M.T. ,

Respondent .

/

RECOMMENDED ORDER

On Marc h 27, 2013, a final administrative hearing was held

in this case in Naples, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Candace Rochester, Esquire

Department of He alth

Bin C65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahass ee, Florida 32302 - 0551

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Health,

Board of Massage Therapy, should discipline the Respondent,

Yuping Jiang, based on the manner in which she applied for and

obtained her license.

PRE LIMINARY STATEMENT

The Department of Health (Department) filed an

Administrative Complaint against the Respondent alleging: in

Count I, that she obtained her license through the Department's

error or through fraudulent misrepresentation; in Count II, that

she failed to provide information or timely updated information,

or made misleading, untrue, deceptive, or fraudulent

representations on her license application; and, in Count III ,

that she failed to complete the course of study required for

licensure. T he Respondent disputed the charges and requested an

administrative hearing.

At the hearing, the Department had Petitioner's Exhibits 1

through 3 admitted in evidence. The Respondent testified and had

her Exhibits 1 through 4 admitted in evidence. The T ranscript of

the final hearing was filed, and the parties filed proposed

recommended orders that have been considered.

FINDING S OF FACT

1. The Respondent, who was born in China, came to the

United States in 2007 and enrolled in the Select Therapy

Institut e in California to study massage therapy. She completed

a 650 - hour course of study and graduated in February 2008. In

April 2009, she sat for and passed the examination administered

by the National Certification Board for Therapeutic Massage and

Bodywork (NCBTMB).

2. In May 2010, the Respondent moved to Fort Lauderdale to

work as a massage therapist. Her employer made an appointment

for her at the Pompano c ampus of the Florida College of Natural

Health (FCNH), which is approved by the Board of Massage Therapy

(Board), to determine what was necessary for the Respondent to be

licensed in Florida as a massage therapist.

3. When the Respondent and her employer arrived at FCNH's

Pompano campus, the receptionist directed them to see Glenda

Johnson, who wa s the school's registrar. The Respondent showed

Johnson her Select Therapy Institute diploma and transcript and

her NCBTMB certificate, which Johnson reviewed.

4. It is not FCNH's normal practice for the registrar to

review transcripts to determine how much credit to accept from

another school. This is normally done by the school's education

department. However, Johnson appeared to have the authority to

make the determination, and it was reasonable for the Respondent

to believe that Johnson was author ized to do so.

5. Johnson then had the Respondent fill out and sign an

application for licensure in Florida by examination based on her

650 - hour course of study at , and diploma from , Select Therapy

Institute and her NCBTMB certificate. Everything in th e

application filled out and signed by the Respondent was true and

correct at that time.

6. Johnson also had the Respondent fill out and sign an

FCNH enrollment agreement. Johnson signed the agreement, as

registrar, to enroll the Respondent at FCNH. T he enrollment

agreement included a statement that FCNH would evaluate

collegiate and post - secondary training, military experience, or

civilian occupations, and the Respondent would be given

appropriate credit , if criteria to measure the value o f such

train ing and experience we re met, as determined by FCNH.

7. Johnson then gave the Respondent a copy of the statutes

and rules governing the practice of massage therapy in Florida

and told the Respondent to study them. The Respondent spent

about three hours in the registrar's office studying the statutes

and rules. There was no instructor present. The Respondent did

not ask anyone any questions about the statutes and rules, and

she was not tested or graded on what she studied.

8. When the Respondent fini shed studying the statutes and

rules, she asked Johnson what else was required of her and was

told all she had to do was pay a total of about $650, which

covered both FCNH's tuition and the Board's $205 license

application fee. Although it did not seem th at much was being

required of her, she testified that she trusted Johnson, as the

school's registrar. Cf. § 1005.04(1)(a) & (d) , Fla. Stat.

(2012) (a nonpublic , secondary institution accredited by the

Commission for Independent Education must disclose to prospective

students the transferability of credit to and from other

institutions and accurate information regarding the relationship

of its programs to state licensure requirements).

9. Actually, even if credit for all other educational

requirements fo r Florida licensure by examination were

transferred from Select Therapy Institute, the Respondent was

required to complete a ten - hour class in Florida statutes and

rules. Fla. Admin. Code R. 64B7 - 32.003 (Apr. 25, 2007).

(Notwithstanding some testimony to the contrary, other mandatory

courses of study are not required by rule to be Florida -

specific.) Id. Like all other educational requirements for

licensure by examination, this class had to be taken in - person,

with a faculty member present. Fla. Admin. Code R. 64B7 - 32.001

(Mar. 25, 1986).

10. The Respondent paid Johnson in cash. Johnson said she

would submit the Respondent's application, fee, and necessary

supporting documentation to the Board. There was no evidence as

to what happened to the balance of the cash paid to Johnson, but

subsequent events suggest that Johnson probably pocketed it.

11. At some point after the Respondent left the Pompano

campus, Johnson completed s ection III of the Florida license

application, which is a transfer of credit form , and the

Respondent's FCNH transcript. The transfer of credit form

indicated that FCNH was accepting: 150 credit hours from the

Select Therapy Institute in the category Anatomy and Physiology

(for a course titled M usculoskeletal); 225 credit hours in the

category Basic Massage Therapy and Clinical Practicum (for a

course titled N euromuscular M assage); 10 credit hours in the

category Theory and Practice of Hydrotherapy (without specifying

the course taken); and 97 credit hours in the category Allied

Modalities (for a course titled S ports M assage). The form

indicated that the Respondent needed the following additional

hours to qualify for examination: ten hours in the category

Statutes/Rules and History of Massage; five hours in the category

Theory a nd Practice of Hydrotherapy; two hours in the category

Allied Modalities (for medical error prevention ); and three hours

in the category HIV/AIDS. Finally, the form showed the total

credit hours for all schools: 150 credit hours in the category

Anatomy a nd Physiology; 225 credit hours in the category Basic

Massage Therapy and Clinical Practicum; ten credit hours in the

category Statutes/Rules and History of Massage; 15 credit hours

in the category Theory and Practice of Hydrotherapy; 97 credit

hours in th e category Allied Modalities; and three credit hours

in the category HIV/AIDS.

12. At some point after the Respondent left the Pompano

campus, Johnson also completed a FCNH transcript for the

Respondent indicating that the Respondent completed all the

cr edit hours on the credit transfer form (a total of 500 credit

hours, including 20 hours having been taken at FCNH), and

assigning credits for those credit hours (a total of 25.84

credits, including 1.33 earned at FCNH). In fact, the Respondent

did not tak e any classes at FCNH.

13. At some point after the Respondent left the Pompano

campus, Johnson also completed FCNH certificates of completion

for the Respondent indicating that the Respondent took and

successfully com pleted FCNH's two - hour class titled P revention of

Medical E rrors and 20 hours of FCNH's Therapeutic Massage

Training Program (Transfer of License). In fact, the Respondent

did not take FCNH's Prevention of Medical Errors class or any

other classes at FCNH.

14. Johnson sent the Respondent's license application (with

$205 fee), Select Therapy Institute diploma and transcript, and

NCBTMB certificate, together with the documents Johnson completed

after the Respondent left the Pompano campus, to the Board. She

did not provide copies to the Resp ondent. Based on those

submissions, the Board issued the Respondent massage therapy

license MA 59583. The two - year license was renewed for another

two years in August 2011.

15. The Respondent's license application included both the

representation that the answers and statements in or in support

of her application were true and correct and the acknowledgement

that any false information on or in support of the application

was cause for denial, suspension, or revocation of her license.

Although true and c orrect when the Respondent filled it out and

signed it, the Respondent's application was not true and correct

as submitted to the Board on her behalf, with the false

supporting documentation prepared by Johnson.

16. In December 2011, it came to the atten tion of Melissa

Wade, FCNH's vice - president for Compliance and Institutional

Effectiveness, that a number of people were claiming to have

graduated from FCNH's Pompano campus based on documentation

indicating that they did not complete FCNH's 768 - hour cour se of

study that was approved by the Board. Wade investigated and was

unable to find any record of the individuals having been students

at FCNH. Wade investigated further and discovered discrepancies

in the documentation being submitted by those individu als. Wade

investigated further and discovered that Johnson never registered

these individuals as enrolled students. Johnson was terminated

from her employment as registrar for the school .

17. Beginning in January or February 2012, Wade began

notifying the Board about the individuals purporting to be FCNH

graduates , but who never actually were registered as enrolled

students and did not complete the school's Board - approved course

of study. As more such individuals were identified, the Board

was notified . The Respondent was one of the individuals reported

to the Board.

18. In August 2012, a Department investigator contacted the

Respondent regarding a complaint that she provided fictitious

transcripts and certificates to the Board as her basis for

licen sure. In September 2012, the Respondent explained that she

simply submitted her information to Johnson, who told her what

was required in order to receive a FCNH diploma and a Florida

license. She admitted it did not seem that much was being

required of her, but she stated that she trusted Johnson, as the

school's registrar.

19. In October 2012, in an attempt to resolve the

Department's issues regarding her license, the Respondent took

and successfully completed Board - approved continuing education

(CE) classes titled L iving with HIV/AIDS (three CE hours),

M assage T herapy L aws and R ules - Î L egal U pdate 2011 (ten CE hours),

and Pr eventing M edical E rrors (two CE hours).

20. Later in October 2012, the Department filed emergency

suspension orders and administ rative complaints against a number

of licensees who submitted suspect FCNH documentation with their

applications, including the Respondent.

21. During the time the Respondent practiced as a licensed

massage therapist in Florida, there have been no compla ints of

any kind against her either by the Department or any consumer.

22. It was not proven by clear and convincing evidence that

the Respondent had any intent to defraud the Department or the

Board. However, even assuming that Johnson had at least app arent

authority to transfer credit hours from Select Therapy Institute

and assign FCNH credit, it is clear that the application

submitted on the Respondent's behalf by Johnson was supported by

documentation that falsely represented that the Respondent took

20 hours of classes at FCNH, including a ten - hour class on

Florida statutes and rules and a two - hour class in P revention of

M edical E rrors. At the same time, those false misrepresentations

were made by FCNH, through its registrar, not by the Respondent.

CONCLUSIONS OF LAW

23. Since this is a license discipline case, the Department

must prove its allegations by clear and convincing evidence.

Dep't of Banking and Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 29 2 (Fla. 1987).

The Supreme Court has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in conf usion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2 d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

24. In Count I, the Department charged the Respondent with

"[a]ttempting to obtain, obtaining, or renewing a license to

practice a profession . . . by fraudulen t misrepresentation,

or through an error of the department or the board."

§ 456.072(1)(h), Fla. Stat. (2009 ). In Count II, the Department

charged the Respondent with "[f]ailing to comply with the

requirements for profiling and credentialing, including, b ut not

limited to, failing to provide initial information, failing to

timely provide updated information, or making misleading, untrue,

deceptive, or fraudulent representations on a profile,

credentialing, or initial or renewal licensure application."

§ 4 56.072(1)(w), Fla. Stat. (2009).

25. Fraud requires a false statement concerning a material

fact (which could include nondisclosure when under a duty to

disclose), made with knowledge of its falsity and with the intent

to induce another's reliance, and c onsequent injury to the person

acting in reliance on the false representation. See, e.g. , Cohen

v. Kravit Estate Buyers, Inc. , 843 So. 2d 989, 991 (Fla. 4th DCA

2003). The evidence was not clear and convincing that the

Respondent had the knowledge or int ent necessary to be guilty of

having made fraudulent misrepresentations in her license

application.

26. Similarly, the evidence was not clear and convincing

that the Respondent herself made misleading, untrue, or deceptive

representations on her license application, notwithstanding

Johnson's representations and statements in the application

signed by the Respondent that the answers and statements in or in

support of her application were true and correct and that any

false information on or in support of t he application was cause

for denial, suspension, or revocation of the license.

27. The evidence also was not clear and convincing that the

Respondent's license was issued through an error of the

Department or the Board. The Board was presented with an

a pplication supported by what appeared to be a transcript and

certificates of completion issued by FCNH, which indicated that

the Respondent had completed a Board - approved course of study and

was entitled to licensure by examination. See Fla. Admin. Code

R . 64B7 - 32.002 (Feb. 21, 1996).

28. Even if the Respondent's license were issued through an

error of the Department or Board, there would have to be some

culpable conduct on the part of the Respondent for her to be

discipline d for such an error. In this case, the evidence was

not clear and convincing that the Respondent engage d in any

conduct that would warrant discipline due to an error of the

Department or Board. That evidence indicates that it was just as

reasonable for the Respondent to rely on NCNH to determine

whether she was entitled to a transcript and certificates of

completion of NCNH's Board - approved course of study as it was for

the Department and Board to do so.

29. In Count III, the Department alleges that the

Respondent violated section 4 80.046(1)(o), Florida Statutes

(2009 ) , which subjects a licensee to discipline for violating any

provision of chapter 480 or 456, by violating section

480.041(1)(b), which sets out the qualifications for licensure ,

including the qualification of having co m pleted a course of study

at a B oard - approved massage school. First, section 480.046(1)(o)

sets out qualifications for an applicant for licensure; it does

not, strictly speaking, make it a violation to obtain a license

without being qualified. Second, if it did, it adds nothing to

the violations alleged in Counts I and II, and Count III would be

resolved as they were.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Massage Therapy enter a

final order dismissing the Administrative Complaint against the

Respondent.

DONE AND ENTERED this 11th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of June , 2013 .

COPIES FURNISHED:

Anthony Jusevitch, Executive Director

Board of Massage Therapy

Department of Health

Bin C06

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3256

Jennifer A. Tschetter, General Counsel

Department of Health

Bin A02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 3230 2 - 0551

Candace Rochester, Esquire

Department of Health

Bin C65

4052 Ba ld Cypress Way

Tallahassee, Florida 32399 - 3265

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 file d with the agency that

will issue the Final Order in this case.