vs. ) CASE NO. 82-3037
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on January 24 and 25, 1983, in Tallahassee, Florida. The transcript was filed on February 14, 1983, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. These were timely filed, and have been considered. Where not adopted, they were found to be irrelevant or immaterial, or not supported by the weight of the credible evidence.
Carolyn S. Raepple, Esquire Post Office Box 6526 Tallahassee, Florida 32314
For Respondent: Drucilla E. Bell, Esquire
The Petitioner, Frederick Norman, took the August, 1982, examination for licensure as an acupuncturist. He failed to receive a passing grade, and brings this proceeding to challenge the validity of the examination and the manner in which it was devised, conducted, and graded. Thus, the issue presented is whether parts of the August, 1982, acupuncture examination were so improperly developed, administered, and scored as to be invalid, and the Petitioner's grades on the invalid portions upgraded to passing or not counted, or whether the Petitioner should be graded solely on the unchallenged portion of the examination which he passed.
The Petitioner testified in his own behalf, and presented two witnesses who are acupuncturists in Florida and experts in this field, and the testimony of the Department of Professional Regulation exam specialist who developed the examination in question. Thirteen exhibits were offered and received in evidence, including the deposition of one of the persons who examined the Petitioner. The Respondent presented three witnesses, its exam specialist who was also called to testify by the Petitioner, another specialist who assisted in
the development of the subject examination, and an osteopathic physician and surgeon who was qualified as an expert in the field of acupuncture. Four exhibits were offered by the Respondent and received in evidence.
Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts:
The Petitioner, Frederick Norman, is an orthodontist and acupuncturist who is licensed to practice in both disciplines in New York and in Aruba. He is in the process of moving from Long Island to Naples, Florida, and he seeks to become licensed to practice acupuncture in Florida.
To this end, the Petitioner took the August, 1982, acupuncture examination in Florida. He passed all parts of this examination except Part IV which he failed. Part IV is the clinical practical portion of the exam, testing needle insertions, manipulation, and removal.
In approximately July, 1981, Harriet Williams, employed as an examination development specialist by the Department of Professional Regulation, began the development of the Florida acupuncture examination. She commenced by reviewing the acupuncture statute and rules for the definition of acupuncture, and the general areas to be tested.
In order to prepare the examination, Ms. Williams consulted practicing acupuncture experts regarding the scope of knowledge involved in acupuncture, and what activities are critical to the practice, the basic training requirements for the practice, and which skills would have to be demonstrated to show competency and not be dangerous to the public.
Ms. Williams then investigated testing feasibility on the different critical areas of acupuncture in order to develop the practical examination. Practical examinations are by definition not referenced to specific textbooks, but are based on the actual practice of a profession.
Other states with acupuncture licensure examinations were consulted and, based on the definition in the statute and the practicalities of the situation, it was decided that the Florida acupuncture examination would involve needle insertion into basic common points, and methods of stimulation which are fundamental and basic to the practice of acupuncture, and that the needling would be done on the candidates themselves.
Since the State of California had been conducting licensure examinations and had been licensing acupuncturists since 1976, it was decided that examiners would be requested from California for both the December, 1981, and the August, 1982, examinations. Examiners with five years experience, doctorate degrees in Medicine or Oriental Medicine, vast training, California certification, and active acupuncture practices were requested.
The regulation of acupuncture is new and unique in Florida because of the State's limited experience with it. In December, 1981, the Department of Professional Regulation gave the first acupuncture examination for licensure in Florida.
In August, 1982, prior to the examination which is the subject of this proceeding, California acupuncture licensure examiners were brought into
Florida, and were trained to administer the Florida acupuncture licensure performance examination. They were trained extensively as to their responsibilities and the standards which the State of Florida was looking for.
The Department did not specify by rule the criteria by which these examiners were to be selected, as required by Section 455.217(1)(b), Florida Statutes. However, the actual qualifications of the examiners were not challenged in this proceeding. The examiners were selected by the Department on the basis of guidelines which required them to be licensed in California and actually treating patients, to have at least five years experience, extensive training in acupuncture, and a degree in Medicine or Oriental Medicine.
The examiners were given standards or guidelines to assist them in judging how to grade a candidate's performance, and they administered the practical acupuncture examination August 2-5, 1982, which was taken by the Petitioner.
The Petitioner has a fear of needles which he considers a phobia but not a handicap. He could not look at the acupuncture point while he inserted the needle, because of his phobia.
Examiners Miles Roberts and Miriam Lee observed the Petitioner's practical acupuncture performance and marked their examination grade sheets accordingly. From one examiner the Petitioner received a barely passing grade on all three points, and from the other examiner, the Petitioner received a barely failing grade on two points and a low failing grade on the third point.
Drchi is the needle sensation which indicates that a specific point has been properly stimulated. The Petitioner claimed to have attained drchi on at least two points, but he was not sure on the third one. There is no objective way for the examiners to ascertain whether or not a candidate has achieved drchi.
In order to demonstrate acupuncture needling, it is helpful to do it into a human body, and it is necessary to do it into a specific acupuncture point. Angling of the needle with and against the flow of energy, twisting and twirling, lifting and thrusting the needle, and closing the hole or leaving it open for sedation and tonification, are basic fundamental techniques in the practice of acupuncture, but candidates are not penalized for using any auxiliary methods in addition.
The grading criteria for the acupuncture examination is contained in Section 21-12.22(5)(a)-(e), Florida Administrative Code. This rule essentially describes how the examiner should reach a decision about how a grade is cast. This particular grading criteria must be applied through the use of expert judgment. The weight for each grading criteria is also given in this rule.
The grading criteria are general in nature, rather than specific and detailed, because of the uniqueness of acupuncture as a technique in Florida. The techniques tested by the exam, however, are basic, fundamental, acupuncture techniques which all entry level licensed acupuncturists should know.
The examiners agreed on whether a candidate should pass or fail the August, 1982, acupuncture examination on approximately 81 percent of their observations. On their observations of the Petitioner, this agreement was 86 percent.
The pass rate for the August, 1982, acupuncture examination was in the range of 30 percent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Chapter 468, Part VII, Florida Statutes, imposes State regulation upon the practice of acupuncture for the purpose of protecting the health and welfare of the public while making this healing art available to those who seek it.
Section 468.323, Florida Statutes, prescribes the qualifications for licensure as an acupuncturist. Subsection (2)(c) of this statute requires an applicant for a license to practice acupuncture to pass an examination which tests the applicant's competency and knowledge of the practice of acupuncture. This examination is required to include a practical examination of the skills needed to practice acupuncture, covering diagnostic techniques and procedures, point/meridian selection, needle insertion, manipulation and removal, patient care, sanitation, and antiseptic application.
Section 455.217(1)(a), Florida Statutes, requires that the Department, in conjunction with the Division of Administrative Services, ensure that the examinations adequately and reliably measure an applicant's ability to practice the profession.
Subsection (b) of this statute provides that to the extent not otherwise specified by statute, the board shall by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade. If a practical examination is deemed to be necessary, the rules shall specify the criteria by which examiners are to be selected, the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade.
It is undisputed that the Petitioner failed the acupuncture practical examination in that he received failing grades from one of the examiners and barely passing grades from the other examiner. It is the Petitioner's contention that the examiner who awarded him the barely passing grades was the correct examiner, and that the other examiner was not paying attention, could not see what the Petitioner was doing, and/or did not measure with the Petitioner's hand to see if he had located the points properly. It is also the Petitioner's contention that he should not have had to locate points on the performance part of the practical examination, that superior manipulation and extreme care have no meaning in the practice of acupuncture and, therefore, should not have been given a higher point value than a mere showing of minimal competency. The Petitioner also contends that since criteria for the selection of examiners were not specified by the Department by rule, the practical portion of the examination is rendered invalid. The Petitioner further claims that the Department failed to adopt grading criteria as required by Section 455.217(1)(b), Florida Statutes, and thus his failing grades on the practical portion of the exam should be disregarded.
Action of an administrative agency when within the power conferred upon it is presumed to be valid and correct in the absence of proof to the contrary. Hayes v. Bowman, 91 So.2d 795 (Fla.1957). As required by Section
455.217(1)(b), Florida Statutes, the Department did adopt a rule regarding the grading criteria for the examination and the weight to be assigned to each criterion, which is found in Section 21-12.22(5)(a)-(e), Florida Administrative Code. These are general criteria because of the uniqueness of acupuncture. The examiners are expected to utilize their expert judgment and to calculate the candidate's grade by using this expert judgment. While other boards may have more detailed grading criteria, the grading criteria for acupuncture are still relatively general compared to specific types of performances involved in other professions. The Petitioner provided no testimony contrary to that of the Department, which indicates that Rule 21-12.22(5)(a)-(e), Florida Administrative Code, does constitute the grading criteria, as required by Section 455.217(1)(b), Florida Statutes.
The Petitioner also contends that the instructions given to candidates were insufficient to inform them what performance was expected. The testimony of examiner Miles Roberts indicates that from his experience as an examiner in California and as an acupuncturist, the instructions were adequate to inform the candidates what to do without being given any further information. In addition, both of the acupuncture experts used by the Petitioner as witnesses are licensed Florida acupuncturists who took and passed the examination in August, 1982, utilizing the same instructions available to the Petitioner. Thus, while the instructions were unclear to the Petitioner, they were sufficient to inform candidates what performance was expected.
The Petitioner further claims that the Department failed to adopt a rule specifying the criteria for examiner selection, and that this deficiency invalidates the practical portion of the examination which he failed. Yet the Petitioner has neither challenged the qualifications of the examiners nor attempted to show that they are not qualified. The Department did establish standards for the California examiners, such as five years experience, extensive training in acupuncture, a Medical Doctor or Doctor of Oriental Medicine degree, licensure in California and actually treating patients. These standards are only guidelines, however, since Florida was dependent upon the use of whomever California could provide from its examiner pool. Without a showing of substantial prejudice from the Department's failure to adopt a rule stating the criteria for selection of examiners, or a showing that this failure resulted in the use of unqualified or incompetent examiners, the Department's procedural omission constitutes harmless error. Peoples Bank of Indian River County v. State of Florida, et al, 395 So.2d 521 (Fla. 1981).
The Petitioner also questions the authority of the Department to test on point location in the practical examination when it was tested in other parts of the examination. The technique of locating points is an essential part of acupuncture, and the Petitioner testified that he expected to have to locate points. One of his expert witnesses testified that point location is crucial to the practice of acupuncture. The points which were chosen for location are basic, common points found on the leg, and one of the points was described as a "very, very important point" in acupuncture. Point location being such a vital part of the practice of acupuncture, this contention of the Petitioner is without merit.
The Petitioner further asserts that the method of locating points used by the examiners was not proper. His expert witnesses explained the proportional method of locating points, and they testified that two examiners who utilized this method of locating points could not differ in their conclusions. However, neither of the Petitioner's expert witnesses has ever served in the capacity of an examiner, and they have had no training in
observation. The California examiners utilized by the Department had many years of experience as examiners, and they have worked under similar conditions when administering the California examinations. They are accustomed to determining whether candidates have properly located acupuncture points. During their training, the examiners were instructed that if they had any doubt about the accuracy of the point location, they were to get up and make a closer examination, and if for any reason they missed watching a performance, they were to give the candidate credit. Therefore, if there is a correct and incorrect observation in a situation where there was a wide discrepancy between examiners, the examiner who marked the lower grade might just as likely be the correct examiner.
Considering all of the evidence presented in this proceeding, there is sufficient evidence to support a finding that the Department prepared the August, 1982, licensure examination for acupuncture that tested a candidate's minimal competency in the theory and practice of this profession. Moreover, the Petitioner having the burden of proof, he has not shown by a preponderance of the evidence that the Department arbitrarily and capriciously failed to give him passing grades on the acupuncture examination in question, or that there is a fatal infirmity in the manner in which this examination was developed, administered and graded.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Frederick Norman for licensure as an
acupuncturist be DENIED, based on his failure to achieve a passing grade on the August, 1982, acupuncture examination.
THIS RECOMMENDED ORDER entered this 5th day of April, 1983, in Tallahassee, Florida.
WILLIAM B. THOMAS
Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1983.
Carlos Alvarez, Esquire, and Carolyn S. Raepple, Esquire Post Office Box 6526 Tallahassee, Florida 32314
Drucilla E. Bell, Esquire
Mrs. Ann Mayne
