Getting Your License, Keeping Your License, and Losing Your License.

Transcription

1 Getting Your License, Keeping Your License, and Losing Your License.

2 Getting Your License, Keeping Your License, and Losing Your License. by Mark R. Brengelman, JD, MA Attorney at Law PLLC, Midway, Ky September 12, :15 p.m. - 2:45 p.m. Nolan C. Allen Hall, Room 460A 2

3 Getting Your License, Keeping Your License, and Losing Your License. originally developed in part for and presented at: Federation of State Boards of Physical Therapy 2013 Annual Meeting and Delegate Assembly San Antonio, Texas 3

4 After this program, you will be able effectively: To identify the general process to obtain a license to practice physical therapy; To develop knowledge of the requirements to keep your license to practice physical therapy; To understand the ways in which you may lose your license to practice physical therapy; 4

5 After this program, you will be able effectively: To identify the interface of state statutes and administrative regulations and the APTA Code of Ethics for the Physical Therapist; To identify the nature of recent complaints adjudicated by a state licensure board; To develop knowledge of the state licensure board complaint process, and; To understand the types of sanctions available to the state licensure board. 5

6 This presentation will then examine specific, recent complaints adjudicated by a state licensure board; coverage will include: The nature of the complaint; The process of adjudication, and; The ethical issues involved. Kentucky Physical Therapy Association 6

7 Disclaimer! These are not the opinions of the KPTA or the Kentucky Board of Physical Therapy; This is my work-product, and these are my opinions to you, and; All information was obtained via records from the Kentucky Board available to the public. 7

8 Definition of terms and focus of this continuing education: Board means the Kentucky Board of Physical Therapy, a state agency created by the Kentucky General Assembly in Kentucky Revised Statutes, Chapter 327, and the administrative regulations at 201 Kentucky Administrative Regulations, Chapter 22; This is what may apply to most of you as licensed physical therapists, certified physical therapist assistants, or applicants for such a credential, and; General principles apply to all physical therapists and physical therapist assistants. 8

9 I. Introduction: What does the Kentucky Board govern? The practice of physical therapy as defined by state statute this is the practice act; Title protection, to use the letters, words, abbreviations, or insignia indicating or implying directly or indirectly that physical therapy is provided or supplied or to bill for physical therapy and to use physical therapy, physical therapist, physiotherapist, P.T., L.P.T., and; All statutes and administrative regulations of the Board. 9

10 I. Introduction: What does the Board not govern? The Code of Ethics for the Physical Therapist of the American Physical Therapy Association (eff. Sept. 7, 2012), and; APTA: The Code of Ethics for the Physical Therapist delineates the ethical obligations of all physical therapists as determined by the House of Delegates of the American Physical Therapy Association. 10

11 I. Introduction: What does the Board not govern? What about physical therapist assistants? Does the APTA Code of Ethics govern all physical therapists, or only those physical therapists who are members of the American Physical Therapy Association (whose membership is voluntary)? and; In Kentucky, the APTA Code of Ethics is not adopted into law; other states may have done so, and they are binding and enforceable under law in those states (to the extent practical) how do you incorporate the APTA Code of Ethics into law? see also KRS Chapter

12 II. What is the Board? Kentucky Physical Therapy Association The Kentucky General Assembly created the Board: There is hereby established a State Board of Physical Therapy which shall consist of seven (7) members appointed by the Governor. and; One (1) lay member and six (6) members who have engaged in the practice of physical therapy in Kentucky for the past five (5) years other qualifications apply, too. 12

13 II. What is the Board? Kentucky Physical Therapy Association The Board regulates the profession and enforces the minimum standards to be a licensed physical therapist and certified physical therapist assistant; The license or certificate to practice is a property right under law; The government cannot deprive a person of his/her life, liberty, or property without due process of law, and; Due process is notice and opportunity to be heard by an impartial decision maker. 13

14 II. What is the Board? Kentucky Physical Therapy Association The Board enforces statutes passed by the Kentucky General Assembly and signed by the Governor into law; The General Assembly only meets for 60 working days in even numbered years, and 30 working days in odd numbered years; The Board also promulgates administrative regulations, which can be filed at any time during the year, and; This starts the notice and comment rulemaking process under KRS Chapter 13A. 14

15 II. What may the Board do as a sanction to protect the public? KRS (1): The Board, after due notice and an opportunity for an administrative hearing conducted in accordance with KRS Chapter 13B may take any one (1) or a combination of the following actions against any licensee, certificate holder, or applicant: (a) Refuse to license or certify any applicant; (b) Refuse to renew the license or certificate of any person; (c) Suspend or revoke or place on probation the license or certificate of any person; 15

16 II. What may the Board do as a sanction to protect the public? KRS (1), continued: (d) Impose restrictions on the scope of practice of any person; (e) Issue an administrative reprimand to any person; (f) Issue a private admonishment to any person; and (g) Impose fines for violations of this chapter not to exceed two thousand five hundred dollars ($2,500). As to fines, is that per person, per case, or per violation? 16

17 II. What may the Board do as a sanction to protect the public? KRS (1), continued: (d) Impose restrictions on the scope of practice of any person; (e) Issue an administrative reprimand to any person; (f) Issue a private admonishment to any person; and (g) Impose fines for violations of this chapter not to exceed two thousand five hundred dollars ($2,500). As to private admonishment, how does that work? One time rule. 17

18 III. How do you become a physical therapist? KRS (1): It shall be the duty of the State Board of Physical Therapy to receive applications from persons desiring to become physical therapists and to determine whether said applicants meet the qualifications and standards required by this chapter of all physical therapists. (Emphasis added.) How do you get to this point? 18

19 III. How do you become a physical therapist? KRS (1): Before applying for licensure by the board as a physical therapist, a person shall have successfully completed an accredited program in physical therapy approved by the board. No school shall be approved by the board unless it has been approved for the educational preparation of physical therapists by the recognized national accrediting agency for physical therapy educational programs. Completion of accredited program accredited by national accrediting agency for physical therapy programs. 19

20 III. How do you become a physical therapist? KRS (1): Any person who possesses the qualifications required by this chapter and who desires to apply for licensure as a physical therapist in Kentucky shall make written application to the board, on forms to be provided by the board. The application shall be accompanied by a nonrefundable application fee in an amount to be determined by the board, but not to exceed two hundred fifty dollars ($250). (Emphasis added.) 20

21 III. How do you become a physical therapist? Completion of accredited program accredited by national accrediting agency for physical therapy programs; How do you find out what accrediting agency this is? Administrative regulation of the Board 201 KAR 22:010 1(2) Commission on Accreditation in Physical Therapy Education, and; Master s versus doctoral degrees use of the title Doctor and the abbreviation Dr. 21

22 III. How do you become a physical therapist? Examination: KRS (3) and (4): If it appears from the application that the applicant possesses the qualifications required by this chapter and has not yet successfully completed the board-approved examination, the applicant shall be allowed to sit for the examination and tested in the subjects the board may determine to be necessary. Examinations shall be held within the state at least once a year at the time and place as the board shall determine, and; See temporary permits, KRS (5) and 201 KAR 22:020 4 and 5. 22

23 III. How do you become a physical therapist? Examination: FSBPT and fixed date testing: The Board requires the NPTE, the National Physical Therapy Examination for physical therapists and physical therapist assistants 201 KAR 22:010 1(13); Examinations used to be offered at computer centers six days a week, and then.... Cheating scandal changes the FSBPT to offer fixed date testing of examinations with unique examination questions that are retired thereafter. 23

24 III. How do you become a physical therapist? Examination: Passing the examination failing the examination: KRS (6): An applicant who receives a passing score as determined by the board and who meets the other qualifications required by this chapter shall be licensed as a physical therapist. KRS (7): An applicant who fails to receive a passing score on his examination shall not be licensed, but the board may, by administrative regulation, permit applicants to take the examination more than once. 24

25 III. How do you become a physical therapist? Examination: Passing the examination failing the examination: 201 KAR 22:020 2(3): After three (3) failed attempts in taking the examination, an applicant shall complete a board-approved remediation plan based on identified deficits as provided on the Federation of State Boards of Physical Therapy (FSBPT) Examination Performance Feedback report prior to registering for each subsequent examination. 25

26 III. How do you become a physical therapist? Examination: Passing the examination failing the examination: 201 KAR 22:020 2(4): Effective July 1, 2012, after six (6) failed attempts at either the physical therapist or physical therapist assistant examination, or combination thereof, in any jurisdiction, an applicant shall not be eligible to register for any additional examinations. An applicant for a license to practice physical therapy may apply for and sit for the examination to be a physical therapist assistant, subject to the six strikes rule, above. 26

27 III. How do you become a physical therapist? Other details apply: 201 KAR 22:020 2(4): Effective July 1, 2012, after six (6) failed attempts at either the physical therapist or physical therapist assistant examination, or combination thereof, in any jurisdiction, an applicant shall not be eligible to register for any additional examinations. An applicant for a license to practice physical therapy may apply for and sit for the examination to be a physical therapist assistant, subject to the six strikes rule, above, and; Temporary permits apply under KRS (5) and 201 KAR 22:020 4 and 5 this has come and gone and come again. 27

28 III. How do you become a physical therapist? Temporary permits: Temporary permits allowed under KRS (5): An applicant who is admitted to the examination or an applicant who has submitted satisfactory evidence that he has been accepted as a candidate for licensure by examination in a state which offers an examination approved by the board may be granted a temporary permit which shall be valid until his examination is graded and he is notified by the board of his score. The board may summarily withdraw a temporary permit upon determination that the person has made any false statement to the board on the application, or the person fails to pass an examination approved by the board. 28

29 IV. How do you keep being a physical therapist? KRS (8) and (9): All licenses and certificates shall be renewed biennially, upon payment on or before March 31 of each uneven-numbered year of a renewal fee in an amount to be promulgated by the board by administrative regulations. Licenses and certificates which are not renewed by March 31 of each uneven-numbered year shall lapse. 29

30 IV. How do you keep being a physical therapist? KRS (8) and (9): There is no grace period to renew the license, they lapse; What are the implications of this drop dead deadline where at midnight on April 1 st the license lapses? Unlicensed practice? Title act violations?..in addition to a reinstatement fee of $ (and impaired practitioner s fee) instead of the renewal fee of $ (and impaired practitioner s fee). 30

31 IV. How do you keep being a physical therapist? 201 KAR 22: This includes showing proof of continued competence; this is 30 hours for the physical therapist and 20 hours for the physical therapist assistant each is to include the 2.0 hour jurisprudence examination; KRS (10): The board may promulgate administrative regulations establishing a measure of continued competency as a condition of license renewal. (Emphasis added.) Enacted in 2004 by statute and starting with the renewal cycle. 31

32 IV. How do you keep being a physical therapist? 201 KAR 22: Isn t this simply continuing education? More than that.; Hardship vs. non-hardship extensions or exemptions; Three year records requirement in 201 KAR 22:045 2(4), and; Licensees are subject to audit for continued competency how does that work? 32

33 Summary so far... getting your license, keeping your license, and losing your license. What s next? Some of the most common violations of law; The intersection of law and ethics; A review of actual cases from the Board, and; A look at actual sanctions handed out all of these were by agreement of the parties (the Board and the physical therapist or physical therapist assistant); and what if you don t agree? 33

34 V. Vignette No. 1 failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. The case of L.M. From on or about October 25, 2010, to on or about November 1, 2011, L.M., a minor patient, received physical therapy services from the Respondent including an initial evaluation on October 25, Reassessments on L.M. were performed by the Respondent and documented for the dates of January 12, 2011, February 27, 2011, April 17, 2011, August 7, 2011, September 17, 2011, and November 1, A physical therapist s assistant provided weekly physical therapy services. 34

35 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. The case of E.S. From on or about December 26, 2010, to on or about November 3, 2011, E.S., a minor patient, received physical therapy services by the Respondent. Between December 26, 2010, to November 3, 2011, reassessments on E.S. were performed by the Respondent and documented for the dates of April 23, 2011, June 7, 2011, September 28, 2011, and November 3, A physical therapist s assistant provided weekly physical therapy services. 35

36 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. The case of D.W. From on or about September 7, 2010, to on or about December 20, 2011, D.W. received physical therapy services from the Respondent including an initial evaluation on September 7, Reassessments on D.W. were performed by the Respondent and documented for the dates of December 30, 2010, February 1, 2011, May 5, 2011, August 23, 2011, October 4, 2011, November 8, 2011, and December 20, A physical therapist s assistant provided weekly physical therapy. 36

37 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What factual conclusions? Are you seeing a pattern here? Were reassessments documented every thirty (30) days? Were they actually performed every thirty (30) days, but simply not documented? If both, what violation(s)? If one (1), what violation(s)? 37

38 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What violations? Not performing the reassessments could be substandard care; Actually performing the reassessments, but simply not documenting them, could be a mere documentation violation only how could you prove they were actually performed? The physical therapist? The patient? Who? Related were the reassessments billed? 38

39 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What violations? Not performing the reassessments = substandard care; Performing the reassessments, but not documenting them = documentation violation only; Not performing the reassessments, but billing for them = billing misconduct and a hypertechnical, medico-legal term of art for the violation. 39

40 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What violations? Not performing the reassessments, but billing for them and creating documentation to show the reassessments = billing misconduct, documentation violation, and substandard care; How to prove not performing the reassessments when there is documentation? Admission by physical therapist? Staff testimony? Calendar conflict with patient record? Sameness of each clinical entry? 40

41 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What violations? 201 KAR 22:053 5(3)(h)(2) by not reassessing L.M./ E.S./D.W. every thirty (30) days following the initial eval or subsequent reassessment, and; KRS (2)(b) by engaging in the performance of substandard patient care due to a deliberate or negligent act or failure to act by continuing to treat L.M./E.S./D.W. when the Respondent had not performed and documented a reassessment every thirty (30) days following the initial eval or subsequent reassessment. 41

42 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What violations? KRS (2)(h) by engaging in fraud or material deception in the delivery of professional services, including reimbursement by failing to perform and document a reassessment every thirty (30) days following the initial eval or subsequent reassessment but billing for the reassessment which was not performed and documented. 42

43 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What ethical issues? Principle #7: Physical therapists shall promote organizational behaviors and business practices that benefit patients/clients and society. #7E: Physical therapists shall be aware of charges and shall ensure that documentation and coding for physical therapy services accurately reflect the nature and extent of the services provided. 43

44 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What ethical issues? Principle #3: Physical therapists shall be accountable for making sound professional judgments. #3B: Physical therapists shall demonstrate professional judgment informed by professional standards, evidence (including current literature and established best practice), practitioner experience, and patient/client values. 44

45 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What ethical issues? Principle #5: Physical therapists shall fulfill their legal and professional obligations. #3A: Physical therapists shall comply with applicable local, state, and federal laws and regulations. 45

46 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What sanctions? Effect Upon Licensure Status: Probation and Monitoring with Costs Disciplinary action: 1) Probation for one (1) year; 2) Fine of $1,800 and costs of $500 in lieu of an additional fine; 3) Passage of the Board s open book jurisprudence examination [now required for continued competency requirements]; 46

47 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What sanctions? Effect Upon Licensure Status: Probation and Monitoring with Costs Disciplinary action: 4) Monitored practice by a Board-designated physical therapist every 90 days of the entire practice for one (1) year [with detailed explanation of monitoring process] with payment of up to $500 per monitoring visit. 47

48 V. Vignette No. 1, continued failure to adhere to administrative regulation about the documentation of periodic reassessments of the patient s condition every thirty (30) days. What sanctions? Effect Upon Licensure Status: Probation and Monitoring with Costs Where these fair? Not harsh enough? A case falling into the 95% remedial and rehabilitative category. 48

49 V. Vignette No. 2 billing fraud to the employer. The case of J.M.F. a physical therapist. On or about June 18, 2010, the Respondent J.M.F. recorded for billing and payment purposes as having been physically present and performing physical therapy on patients at ABC Nursing and Rehab, City 1, from 12:00 noon to 4:45 p.m. by using a time-clock stamp for check-in and check-out, and also recorded for billing and payment purposes by signing in by hand on an entry/exit log as also having been physically present and performing physical therapy on patients at XYZ Nursing Home, a facility approximately twenty miles away in City 2, from 8:00 a.m. to 2:00 p.m. the same day. 49

50 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. On or about July 24, 2010, the Respondent J.M.F. recorded for billing and payment purposes as having been physically present and performing physical therapy on patients at LMNOP Rehab, City 3, from 8:00 a.m. to 4:30 p.m. by using a time-clock stamp for check-in and check-out, and also recorded for billing and payment purposes by signing in by hand on an entry/exit log as also having been physically present and performing physical therapy on patients at a Nursing Home, City 4, a facility approximately thirty miles away, from 11:40 a.m. to 1:40 p.m. the same day. 50

51 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. On or about July 26, 2010, the Respondent J.M.F. recorded for billing and payment purposes as having been physically present and performing physical therapy on patients at ABC Nursing and Rehab, City 1, from 6:30 a.m. to 3:05 p.m. by using a time-clock stamp for check-in and check-out, and also recorded for billing and payment purposes by signing in by hand on an entry/exit log as also having been physically present and performing physical therapy on patients at XYZ Nursing Home, a facility approximately twenty miles away in City 2, from 3:00 p.m. to 7:00 p.m. the same day. 51

52 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. At XYZ Nursing Home, the facility that was approximately twenty miles away in City 2, was changed by the Respondent to 3:35 p.m. to 5:15 p.m. when confronted by the Respondent s employer with this discrepancy from the original times of 3:00 p.m. to 7:00 p.m. the same day. Is this probative? Evidentiary value? Show intent or motive? Mitigation of violation? 52

53 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. On or about May 2, 2010, the Respondent J.M.F. recorded for billing and payment purposes as having been physically present and performing physical therapy on patients at L.C. Healthcare Center, City 5, from 6:45 a.m. to 2:00 p.m., and then recorded for billing and payment purposes as also having been physically present and performing physical therapy on patients at ABC Nursing Home and Rehab, City 1, a facility several miles away, for an additional eight (8.0) hours that same day (no start/stop time) when services were not usually provided before 7:30 a.m. or after 6:00 p.m. on any day. 53

54 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What violations? KRS (2)(h) for engaging in fraud or material deception in the delivery of professional services, including reimbursement. This violation involved the Respondent s recording for billing and payment purposes as having been physically present and performing physical therapy on patients at two different locations on the same day when the Respondent could not have been physically present at the same time at both locations on that same day. Multiple violations provable in multiple ways! 54

55 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What ethical issues? Principle #7: Physical therapists shall promote organizational behaviors and business practices that benefit patients/clients and society. #7E: Physical therapists shall be aware of charges and shall ensure that documentation and coding for physical therapy services accurately reflect the nature and extent of the services provided. Include patient chart and employer record? 55

56 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 1) Active suspension for sixty (60) consecutive days beginning September 15, 2011, to conclude treatment/transfer patients and physical therapy records documentation, and shall not practice physical therapy as defined in statute and shall not provide any health care service to the public during suspension; 56

57 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 2) Probation for three (3) years from either: A) November 15, 2011, or; B) the date of the Respondent s return to practicing as a physical therapist in the Commonwealth of Kentucky, whichever is later; 57

58 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 3) the Respondent shall not practice as a physical therapist in a solo/independent practice setting, in a home health setting, or in a patient s home or school setting, for the three (3) year period of probation; however, the Respondent may so practice upon Board review of employer s billing/documentation systems; 58

59 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 4) Pay $1, for investigative, administrative, and legal costs in handling this matter, and a fine in the amount of $ per violation under KRS (1)(g)(total fine: $9,500.00), for a total amount of $10,500.00, in monthly installments of $ without interest for a period of one (1) year; 59

60 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 5) Monitored practice by a Board-designated physical therapist every 90 days of the entire practice for three (3) years [with detailed explanation of monitoring process] with payment of up to $500 per monitoring visit; 60

61 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 6) With appropriate, documented compliance, after two (2) years of probation and eight (8) successful monitoring visits, the Respondent, with the written approval of the Board monitor, may file a request in writing with the Board to be relieved of further monitoring or to reduce the frequency of monitoring; 61

62 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 7) The Respondent shall file as soon as practical a copy of this Settlement Agreement with the Respondent s current employer and with any future employer during the above period of probation, and shall file contemporaneous proof with the Board of its filing with the Respondent s employer, during probation; 62

63 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 8) Notify the Board, in writing, not later than five (5) days prior to the Respondent s date of employment as a physical therapist in the Commonwealth of Kentucky; 63

64 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 9) Complete continued competency course work consisting of the APTA Online Professionalism Course, Series Modules 1, 2, and 3, with proof of completion; said continuing education course work shall be in addition to the continued competency hours otherwise required by 201 KAR 22:045; 64

65 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 10) Complete with an unconditional pass continued competency course work consisting of the ProBE P.T. Program (Professional/Problem Based Ethics) sponsored by the Center for Personalized Education, New Brunswick, New Jersey, in addition to continuing education course already required; 65

66 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 11) Shall successfully complete continuing education course work consisting of the APTA Values Based Behaviors selfassessment, with proof of completion; said continuing education course work shall be in addition, and; 66

67 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs 12) Shall fully cooperate with any current or former employer which may be involved in obtaining restitution from the Respondent. Restitution not a specific remedy, but this above may be agreed to. 67

68 V. Vignette No. 2, continued billing fraud to the employer. The case of J.M.F. a physical therapist. What sanctions? Effect Upon Certificate Status: Active Suspension; Probation with Practice Restriction; Costs/Fine; Monitoring with Costs Where these fair? Not harsh enough? A case falling into the 5% category not directly punitive, but necessary to protect the public. 68

69 V. Vignette No. 3 sexual misconduct. The case of K.F. a physical therapist. From on or about May 7, 2003, to on or about October 26, 2003, the Respondent treated patient C.G., an insurance patient, developing a personal relationship by discussing his personal life, including that he was divorcing his spouse, that the spouse was unfaithful during the marriage, that he had cancer with a likelihood of not surviving, that he would treat C.G. better than the husband of C.G., and that C.G. should divorce. The Respondent made sexually provocative comments to C.G. 69

70 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. C.G. was married when he began physical therapy treatment, but the Respondent gave the impression to C.G., and otherwise allowed C.G. to believe, that the he would divorce his spouse and marry C.G. They traveled together to be together once in Miami, Florida, and twice in Cincinnati, Ohio. He purchased a car for C.G., gave several thousand dollars to C.G., and gave other gifts to C.G., and sent C.G. to a dentist for a treatment plan costing approximately $10,000.00, which the Respondent represented to C.G. that the Respondent would pay for. 70

71 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. C.G. divorced her husband in reliance on the various romantic representations made by the Respondent; On or about August 7, 2003, the Respondent and C.G. began a sexual relationship, which occurred at a motel, at his residence, and at the residence of C.G. and concluded on or about late- March 2004, or early-april

72 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. The Respondent treated C.G. at the clinic with a discharge summary dated June 6, 2003, in the physical therapy record of C.G. The Respondent continued physical therapy treatment of C.G. at the clinic from on or about June 6, 2003, to on or about August 7, 2003, while treating C.G. without charge; 72

73 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. From on or about August 7, 2003, to on or about October 23, 2003, the Respondent treated C.G. at the clinic offices as well as at the home of C.G., while treating C.G. without charge. The Respondent removed an ultrasound unit owned by the clinic for use in the home of C.G. for the physical therapy treatment of C.G. The Respondent removed prescription hydrocortisone cream owned by the clinic for use in the home of C.G. for the physical therapy treatment of C.G. The hydrocortisone cream was not prescribed for C.G. 73

74 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. From on or about October 23, 2004, to on or about late-march 2004, or early-april 2004, the Respondent treated C.G. at the home of C.G., while treating C.G. without charge, and while continuing the use of the ultrasound machine and prescription hydrocortisone cream; From on or about June 6, 2003, to on or about late-march 2004, or early-april 2004, the Respondent performed physical therapy services on C.G. and failed to maintain documentation of said treatments and failed to perform and document reassessments of G.C. 74

75 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. The evidence? When confronted by a management member of the clinic regarding the Respondent s sexual relationship with G.C., the Respondent resigned from the clinic under threat of termination from employment. 75

76 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. The evidence? What evidentiary value is it to have the resignation? Is that an admission of a violation of law? Or just an employment matter? Was C.G. a patient? Did she think she was a patient? If she was a patient but being treated for free, does the physical therapist have to comply with the documentation and reassessment laws? 76

77 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What violations? KRS (2)(c)(2) by having engaged in or attempted to engage in a course of lewd or immoral conduct with C.G. -- having a sexual relationship with C.G. while C.G. was a patient of the Respondent from August 7, 2003, to on or about late- March 2003, or early-april 2004; 201 KAR 22:053 2(1) by failing to respect the rights and dignities of all individuals -- discussing the Respondent s personal life with C.G., and the exploitation of C.G. for the personal benefit of the Respondent. 77

78 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What violations? 201 KAR 22:053 3(3) and 6 by failing to be responsible for the physical therapy record of G.C. by failing to create and maintain the physical therapy record of C.G. from on or about June 6, 2003, to on or about late-march 2004 or early-april 2004.; 201 KAR 22:053 3(4) by failing to provide services that meet or exceed the generally accepted practice of the profession by failing to perform and document reassessments of G.C. 78

79 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What ethical issues? Principle #2: Physical therapists shall be trustworthy and compassionate in addressing the rights and needs of patients/clients. #2A: Physical therapists shall adhere to the core values of the profession and shall act in the best interests of patients/clients over the interests of the physical therapist. 79

80 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What ethical issues? Principle #4: Physical therapists shall demonstrate integrity in their relationships with patients/clients[.] #4B: Physical therapists shall not exploit persons over whom they have supervisory, evaluative, or other authority (e.g., patients/clients). #4E: Physical therapists shall not engage in any sexual relationship with any of their patients/clients[.] 80

81 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What sanctions? Effect Upon Licensure Status: Two (2) Year Active Suspension The parties agree to the following as the agreed upon disciplinary action: 1) Two (2) year active suspension, not to engage in the practice of physical therapy as defined by law, shall not be employed in Kentucky by a health facility as defined by law or by a licensed physical therapist during two (2) year active suspension; 81

82 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What sanctions? Effect Upon Licensure Status: Two (2) Year Active Suspension The parties agree to the following as the agreed upon disciplinary action: 2) Shall complete physical therapy services on existing patients of record by [date], or shall make a written referral as appropriate by [date], and shall, within a reasonable time thereafter, complete all documentation as mandated by 201 KAR 22:

83 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What sanctions? Reinstatement provisions equally important in getting someone out of the profession is governing when, how, and if they may apply to return. 1) Fitness for Duty and Mental Health Examination; 2) Undergo and document mental health treatment and psychotherapy during active suspension; 3) Renew license during the period of suspension and obtain all required continued competency; 4) Pass jurisprudence examination of the Board; 5) Pay $1,000 for investigative costs. 83

84 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What sanctions? Probationary provisions equally important in getting someone out of the profession is governing when, how, and if they may apply to return, and how they continue. 1) Five (5) year probation; 2) Participation in Impaired Physical Therapy Practitioners Committee; 3) Not practice in a home health setting. 84

85 V. Vignette No. 3, continued sexual misconduct. The case of K.F. a physical therapist. What sanctions? Where these fair? Not harsh enough? A case falling into the 5% category not directly punitive, but necessary to protect the public. 85

86 VI. Conclusions. Kentucky Physical Therapy Association Identified the general process to obtain a license to practice physical therapy; Developed knowledge of the requirements to keep your license to practice physical therapy; Reviewed the ways in which you may lose your license to practice physical therapy; 86

87 VI. Conclusions. Examined recent complaints adjudicated by a state licensure. Coverage included: The nature of the complaint; Kentucky Physical Therapy Association The process of adjudication, and; The legal versus the ethical issues involved. 87

88 Questions? 88

89 Mark R. Brengelman, Attorney at Law Hazelrigg & Cox, LLP 415 West Main Street, Suite 1 Post Office Box 676 Frankfort, Kentucky MBrengelman@hazelcox.com Office: (502) Fax: (502) Website:

90 Thank you!