STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM DUFF SKELTON, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3041
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) ANNA TEDDER ALVAREZ, )
)
Petitioner, )
)
vs. ) CASE NO. 83-069
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) JAMES R. BISSLAND, )
)
Petitioner, )
)
vs. ) CASE NO. 83-070
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) DAVID N. BOLE, )
)
Petitioner, )
)
vs. ) CASE NO. 83-071
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
)
MARIE W. BURLESON, )
)
Petitioner, )
)
vs. ) CASE NO. 83-072
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
)
STEPHEN M. CHOTA, )
)
Petitioner, )
)
vs. ) CASE NO. 83-073
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) PAUL V. GONZALEZ, )
)
Petitioner, )
)
vs. ) CASE NO. 83-074
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) HARVEY J. KALTSAS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-075
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) CHARLES H. McWILLIAMS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-076
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
)
HENRY W. MERITT, )
)
Petitioner, )
)
vs. ) CASE NO. 83-077
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) VICTORIA M. PATRIGNANI, )
)
Petitioner, )
)
vs. ) CASE NO. 83-078
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) EDWARD S. RUMSEY, JR. )
)
Petitioner, )
)
vs. ) CASE NO. 83-079
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) WALTER FISCHMAN, )
)
Petitioner, )
)
vs. ) CASE NO. 83-452
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above-styled cases on March 9, 10 and 14, 1983, at Tallahassee, Florida.
APPEARANCES
For Petitioners: Carlos Alvarez, Esquire and
Carolyn S. Raepple, Esquire Post Office Box 6526 Tallahassee, Florida 32314
For Respondent: Drucilla E. Bell, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
By letter dated September 23, 1983, William D. Skelton requested an administrative hearing to contest the results of the acupuncture licensing test, Part IV, taken by him in August, 1982. As grounds therefor, it is alleged the examiners were unprofessional and the points selected for needling by the applicant were improperly checked by the examiners; and, hence, incorrectly graded by them. The other Petitioners filed petitions for hearing attaching thereto an enclosure detailing their objections to the grades they received on Part IV of the August, 1982, licensing exam. These Petitioners generally allege the examiners ware unprofessional; that the examiners could not possibly determine the accuracy of the point selected for needling without physically measuring to locate this point, and that they did not so measure; that the Respondent or examiners did not fully explain to Petitioners exactly what they were to be graded on; that some of the criteria used by the examiners in assigning grades are of no value and, hence, are invalid; that the examiners were not in a position where they could actually observe Petitioners demonstrate point location and needling techniques; that the examiners were inconsistent in their grading, that this inconsistency rendered the grades unreliable, and that another examiner should have been available where the two examiners did not award the same grade for a particular task; that "manipulation" was scored twice by each examiner for each of the three acupuncture points in items 8, 10, 13, 15, 18, and 20 on the test sheets; that grading criteria was not furnished the candidates; and that those items on which the examiners differed should be disregarded in computing applicants' final scores. Perhaps the most significant allegation made by Petitioners, particularly in their proposed recommended orders, is that the examinees were not adequately informed by Respondent of exactly what they were required to demonstrate to the examiners to receive a passing score, and the Examiners Manual prepared by Respondent for use by the examiners unduly restricted the grades awarded by the examiners.
Prior to the commencement of the hearing, the parties submitted a prehearing stipulation from which admitted facts have been accepted in the findings of fact below.
At the hearing 14 witnesses were called by Petitioners, of which 10 were Petitioners, and the other 4 testified as experts; 4 expert witnesses were called by Respondent; and 38 exhibits were admitted into evidence.
Proposed findings submitted by the parties and not included below are not supported by the evidence or were deemed immaterial to the results reached.
FINDINGS OF FACT
Regulation of those practicing acupuncture first became law in Florida with the passage of Chapter 80-375, Laws of Florida (1980). Therein it was declared unlawful for any person to practice acupuncture in this state unless
such person has been certified by the Department of Professional Regulation. This statute, as amended, and now contained in Section 468.323, Florida Statutes (1981), requires an applicant for certification to practice acupuncture in this state to pass an examination which tests the applicant's competence and knowledge of the practice of acupuncture and "includes a practical examination of the skills required to practice acupuncture, covering diagnostic techniques and procedures, point/meridian selection, needle insertion, manipulation and removal, patient care, sanitation and antiseptic application." The technique of point/meridian selection, needle insertion, manipulation and removal, which Section 468.323 requires a successful applicant to demonstrate are techniques basic to traditional Chinese acupuncture. All of these Petitioners failed the clinical practical portion of the examination given in August, 1982.
The August, 1982, examination was the second examination given in this state to applicants for certification to practice acupuncture. The first examination was given in December, 1981.
Due to the lack of known-to-be qualified examiners in Florida, Respondent contacted the State of California, who has licensed acupuncture practitioners since 1976, and arranged to have acupuncturists who have served as examiners in California, serve as examiners for the practical part of the Florida examination for the examinations given in December, 1981, and August, 1982. All of the examiners who administered and graded the practical portion of the August, 1982, examination have practiced acupuncture for at least five years and have served as examiners in California for at least three years. Most of these examiners hold degrees in medicine or oriental medicine and all are highly qualified acupuncturists. All of these examiners were assembled before the commencement of the examination and instructed for twelve to eighteen hours to assure that all were grading on the same scale and their grades would be as consistent as practicable. They were provided with Acupuncture Examiner Manual (Exhibit 14) which contains grading criteria for each task on the practical examination. Petitioners contend that this examiner manual established grading criteria for procedures that are unnecessary and/or not practiced by many acupuncturists, thereby taking from the examiners the initiative to grade the examinees on their overall demonstration of acupuncture techniques. A careful review of Exhibit 14 does not compel this conclusion. To the contrary, Exhibit
provides the examiners with examples of techniques that demonstrate competence as well as techniques demonstrating superior performance. As noted below, the areas in which the greatest number failed was in location of acupuncture point and length of needle/angle of insertion/manipulation. In the former a passing grade was given if the candidate needled on the proper meridian. A superior grade resulted if the candidate was less than one-half inch off point and on the meridian. In the latter the candidate received a passing score if he got two of the three, viz, angle of insertion, length of needle and/or manipulation, correct. Either twisting and twirling or lifting and thrusting of the needle was accepted for manipulation for either tonification or sedation.
Instructions were mailed to all applicants advising of the time and place of their examination; the format of the examination; the bibliography of books to study for Part II of the examination, Theory and Practice of Acupuncture; how Part IV of the practical examination will be graded and that it will consist of: (1) Needle Insertion, Manipulation and Removal and (2) Patient Care, Sanitation and Antiseptic Application (Exhibit 4). Also forwarded to the applicants were the rules governing acupuncture clinics, Chapter 10D-81, Florida Administrative Code, and Chapter 21-12, Florida Administrative Code, covering licensing procedures for acupuncturists, including scope of the examination.
Every examinee's scores for items 6, 11, and 16 on Part IV.1 of the August, 1982, examination intended to test examinees' performance in needle inspection prior to insertion were invalidated by Respondent at the examination because:
Candidates did not adhere to this criteria, it would appear that while this is a vital precautionary measure to be utilized in the practice of acupuncture, candidates, however, consistently failed this criteria. The contention is that since applicants used newly purchased pre-packaged needles, disposable needles, and their personal needles, the assumption is that candidates were confident of the "good" condition of needles, and with the exception of one candidate this appears to be true.
Prior to the August, 1982, acupuncture licensure examination, Respondent did not specify to Petitioners any text as reference for the clinical practical portion (Part IV) of the examination, nor did Respondent expressly notify Petitioners that they would be tested on points/meridian location in Part
IV.1 of the examination.
Respondent did not instruct examiners for the August, 1982, examination that they had to determine the accuracy of Petitioners' point/meridian location through the examinees' use of the proportional measurement method, including the comparison of the size of their hand to Petitioners' hands, and then palpation, and the examiners did not use this method of determining the accuracy with which Petitioners located acupuncture points on the clinical practical examination.
Respondent did not notify Petitioners expressly in writing prior to the examination that they were required to insert the needle at an angle, either with or against the flow of energy along the meridian, in order to receive a score for "correct angle" on the August, 1982, acupuncture licensure clinical practical examination.
Respondent did not notify Petitioners expressly in writing prior to the examination that they had to demonstrate one of the needle manipulation techniques known as "twisting and twirling" or "lifting and thrusting" in order to receive a score for "correct manipulation" on the August, 1982, acupuncture licensure clinical examination.
Respondent did not notify Petitioners by rule or otherwise that "needle manipulation" would be graded in two separate items on the grade sheet for each acupuncture point on the examination. Nor did Respondent notify Petitioners expressly in writing prior to the examination that they had to close the hole for tonification and leave the hole open for sedation in order to receive a score for "proper removal" of the needle on this examination.
Respondent did not notify Petitioners expressly in writing prior to the examination that they had to cleanse hands by washing with soap or scrubbing with alcohol or an antiseptic solution prior to handling needles and that they had to maintain "sterile hands" when handling any of the needles in order to receive a "pass" score for item 2 of Part IV.2 of the examination. Nor did Respondent so notify Petitioners that they had to use an antiseptic agent, such
as betadine solution, hydrogen peroxide, or alcohol, to cleanse the skin area in which needle insertion was to be performed in order to receive a pass score for item 3 of Part IV.2 of this examination.
Nor did Respondent so notify Petitioners that once their hands had been cleansed the cleansed hands could not be used to adjust their clothing or in any other manner that would not maintain sterility in order to receive a "pass" score for item 4 of Part IV.2 of the examination.
Respondent did not adopt a rule specifying the criteria by which examiners were to be selected prior to the August, 1982, acupuncture examination, nor did Respondent adopt a rule specifying point/meridian location as a grading criterion for the August, 1982, examination.
"Superior manipulation" and "extreme care exercised" are not terms of art in the practice of acupuncture.
Acupuncture is defined in the statutes and rules to mean "the insertion of needles into the human body, or the treatment of specific skin areas by means of mechanical, thermal, or the electrical stimulation, for the purpose of controlling and regulating the flow and balance of energy in the body." There are numerous "schools" of acupuncture throughout the world where "masters" teach different techniques. However, all of these schools teach the traditional Chinese theory of acupuncture which is to balance the energy in the body by "tonifying" those areas where there is insufficient energy and "sedating" those areas with too much energy. No evidence was presented that different acupuncture "points" are used at the differing schools of acupuncture or that proper results can be obtained if the needle is not inserted accurately on the point to he needled. These "points" are where needles are inserted and manipulated to increase or decrease the flow of energy on that meridian. The differences in these schools of acupuncture, including the western or scientific, consists mainly of techniques used to attain the desired end. Of these techniques, depth of needle, angle of insertion, and how a needle is manipulated to stimulate the point are perhaps the most significant.
Of the three texts referred to the applicants for study, two describe the traditional Chinese art of acupuncture, while the third, by Felix Mann, tests the Chinese art of acupuncture against western scientific bases to demonstrate the efficacy or lack thereof of some of these procedures. While a scientific basis for certain of the traditional Chinese theories cannot be demonstrated, Mann, and others in the scientific world, contend these theories to be without merit.
Pursuant to the Chinese school of acupuncture, both depth and angle of insertion of the needle are important. For tonification this school teaches that the needle be angled with the flow of energy, and stimulation of the point is attained by: (1) Repeatedly lift the needle gently subtaneously, then thrust it back with force; (2) Twist and twirl the needle back and forth with small amplitudes and slowly; (3) Insert the needle slowly, twirl it gently. When withdrawing, rest the needle just beneath the skin for a short interval, then withdraw it swiftly; and (4) After withdrawing the needle, close the acupuncture hole by applying slight pressure over it, preventing the vital energy from the channel from escaping. For sedation the needle is inserted against the flow and the manipulations above-noted for tonification are, insofar as practicable, reversed and the hole is left open for the excess energy to escape (Exhibit 6).
Traditional Chinese acupuncture emphasizes the importance of point location, angle of insertion, depth of penetration of the needle, the type manipulation used and opening or closing of the hole. All schools emphasize the importance of point location. Some schools, finding little scientific basis for angle and depth of insertion, de-emphasize the importance of these techniques. Many contend that there is no basis for angled insertions solely for tonification or sedation, that with adequate stimulation, depth of needle is unimportant and that almost any type of stimulation is adequate for either tonification or sedation. Little scientific basis for leaving the hole open or closing the hole for sedation and tonification, respectively, has been demonstrated. Since many acupuncture practitioners in the western world, particularly medical doctors, attain stimulation by the use of electricity, and electricity will pass through body tissue easier than manually transmitted vibrations of the needle, the depth of penetration for these practitioners using electrical stimulation is not particularly important. Accordingly, those practitioners give little weight to depth of penetration.
Manipulation of the needle during and after insertion consists principally of lifting and thrusting or twisting and twirling. The needle can be moved only in three dimensions, but the speed and amplitude of those movements can be varied. Variations of the speed, amplitude and direction of the movement of the needle are obtained by "plucking" the needle, "scraping" the needle, "shaking" the needle, "flying" the needle, and "trembling" the needle. (Exhibit 28) Movements in certain directions with emphasis are specified for tonification and other movements for sedation are important in the practice of traditional Chinese acupuncture.
In the instructions given to the applicants, including all of these Petitioners, they were directed to bring acupuncture needles of various sizes they would use in their practice and all material needed for sanitation and antiseptic application. For Part IV of the examination, each applicant was advised prior to the examination (Exhibit 5) that he/she would be required to perform needle insertion, manipulation and removal on themselves for three different acupuncture points, that the examiner will designate the points on which needle insertion, manipulation and removal are to be performed; that they were to demonstrate for the examiners how they would treat a patient in their clinic when performing needle insertion, manipulation and removal; that they are required to demonstrate only the proper sterilization and sanitation procedures and proper needling techniques for the designated acupuncture points; and that
minutes is allotted for this portion of the test.
The examination was conducted in a motel room having a sink for the applicant to wash his hands, a straight chair and coffee table for applicant to sit on and set up his equipment and two chairs for the two examiners. Upon entry into the room, each applicant was given the information contained in Exhibit 10. Several Petitioners testified Exhibit 10 was not read to them, while all examiners testified that Exhibit 10 was read to each applicant. All Petitioners who testified prepared a lower leg for acupuncture, all acknowledged that they used a different needle for each insertion, and each acknowledged that he/she was directed to tonify or sedate three specific points. Exhibit 10 directs the procedures each Petitioner testified he followed with the possible exception of the words "using correct angle and needle manipulation" following the directions to "tonify spleen 6" or "sedate liver 4." While a few of the Petitioners attributed their failure to use correct needle angle prescribed by traditional Chinese acupuncture to the failure of the examiners to so instruct them, most of the Petitioners who didn't angle the needle testified that they used a perpendicular needle angle of insertion of the needle because they didn't
believe in the efficacy of angling the needle; or to the instruction to insert the needle as they would on a patient in their clinic. Since they didn't use angled insertions on their patients or "close the hole" or "leave the hole open" when treating their patients, they didn't demonstrate the use of those techniques on the examination.
Petitioners' primary complaints about the examination concern the failure of Respondent to more specifically tell them exactly what they would be required to do on the practical part of the examination to obtain a passing grade. Su Liang Ku was a successful applicant for licensure on the August, 1982, examination and testified as an expert witness in these proceedings. He acknowledged that the instructions that he was given were not all-encompassing and that he did not always "close the hole" when applying tonification procedures to patients in his office; however, he clearly recognized the need to demonstrate to the examiners all of the appropriate techniques when taking an examination. Ku had taken exams in Burma, China and California before taking the Florida examination and was not surprised by the tests he was asked to perform on the practical examination or uncertain whether the needle should be angled, the hole closed or left open, or whether he should demonstrate more than one technique used to stimulate the point. Had some of these Petitioners recognized and kept in mind this innate distinction between adequate clinical procedures and examination procedures, they, too, would have passed this examination.
Petitioner William Skelton failed Part IV of the examination largely because he was graded zero by both examiners for "needle manipulation and removal" for two of the three points. He was also given a below average by both examiners on needle length for one point. Skelton understood he would be examined on traditional Chinese acupuncture, and to tonify a point, he angled the needle in the direction of flow. He also understood point location was very important and that when told to tonify Spleen 6 he was expected to insert the needle at the correct point. Despite his acknowledgment that he understood he was being examined in traditional Chinese acupuncture, Skelton closed the hole on one point traditional Chinese acupuncture indicates should be left open.
Petitioner Anna Alvarez failed Part IV of the August, 1982, examination largely as a result of the marks she received from both examiners on length of needle/angle of insertion/manipulation. These marks were 2 for both examiners for points 2 and 3 while for point 1 examiner A scored her performance zero and examiner B scored it 2. Had a passing mark from each examiner been awarded for all three points on this item of the examination, she would easily have passed Part IV of the examination. Ms. Alvarez testified that she did not understand she was being graded on point selection; however, she received passing marks in accuracy of location of acupuncture points from both examiners for all three points. Ms. Alvarez also testified that she achieved chi at two points and after receiving chi it is not necessary to manipulate the needle. While this procedure may well be appropriate in practice, the examiner can hardly determine that the applicant is competent as an acupuncturist unless acupuncture techniques are demonstrated. Simply announcing the arrival of "chi" after which additional stimulation may not be necessary, does not demonstrate manipulation. On the third point, Liver 4, she testified that she did not want sedation so she did not try to get chi. She also testified that the needle was inserted perpendicular to the skin for each point. One of the criteria tested on this part of the practical examination is angle of insertion. While the efficacy of angle of insertion is disputed by many, it is entrenched in traditional Chinese acupuncture and all candidates were aware that the examination would be in this field. Applicants were not given a failing score
if needle was not angled, but received a higher score if this technique was demonstrated.
Petitioner Paul Gonzalez failed Part IV of the August, 1982, examination largely because of the grades he received in accuracy of location of acupuncture point and in length of needle/angle of insertion/manipulation. For point one, Gonzalez was marked zero by both examiners. He testified that he was told to do Liver 8 and he got mixed up and inserted the needle at Kidney 8. He also testified that he had brought only 1-1/2 inch needles to the examination despite instructions received in Exhibit 4. On cross examination he testified that he had other needles with him but used only 1-1/2 inch needles in the examination. Gonzalez expected to he tested on traditional Chinese acupuncture procedures and attempted to demonstrate those techniques and needle insertion and manipulation. However, of the six grades received for each of the four sections on which the candidates were graded (two examiners x three points) Gonzalez received 2 - 3's and 4 - 2's for length of needle/angle of insertion/manipulation. Only on point 3 did his total score for a point reach the passing level of 3. Gonzalez angled the needle against the flow when he was told to sedate Gall Bladder 41. He also testified he was not told to tonify or sedate the other two points; however, this is contrary to the testimony of the examiners that they read Exhibit 5 to all applicants and to the testimony of other witnesses that they were told to tonify or sedate each point to be needled.
Petitioner Edward Rumsey failed Part IV of the August, 1982, examination after receiving zeros from both examiners on point selection for point 1, a 3 and a 0 for point selection for point 2, and 2 - 2's for point selection for point 3. For needle manipulation and removal he received zeros from both examiners for points 1 and 2. In each of the 4 techniques tested for the three points, Rumsey received a total score less than 12 which reduces to an average score of less than 3 needed for passing. Rumsey testified he studied the books on Chinese acupuncture listed on Exhibit 4. When told to tonify Stomach 36, he inserted needle perpendicular to the skin. When told to tonify Spleen 10, he inserted the needle at an angle to the flow. When told to sedate Gall Bladder 41, he again inserted needle perpendicular to the skin. Rumsey further testified the only manipulation technique he used was twisting the needle and he didn't demonstrate closing the hole or leaving the hole open. As with other applicants, the examiners who tested Rumsey were seated in chairs facing Rumsey and could observe him clearly. Rumsey, as did several other witnesses, contended the examiners could not ascertain the needle was inserted more than 1/2 inch from the correct point unless they actually measured. The various acupuncture points are located a certain number of "cuns" from an anatomical landmark and there are a specified number of cuns between two anatomical landmarks. For example, Exhibit 9, p 91, shows there are 8 cuns between the nipples on a man's chest. An experienced acupuncturist should be able to locate a point with considerable accuracy by viewing the anatomical landmark and, by eye, selecting the point 3/8, 1/4, etc. of the distance between these landmarks.
Petitioner, David Bole, failed part IV of the August, 1982, examination because he received an average score high enough to pass only one of the four criteria graded by the examiners, viz, "condition of needle - handle comes in contact with skin." On needle manipulation and removal, he received for point 1 a 0 and a 3; for point 2 - 3 zeros; and for point 3 - 2 fours. On accuracy of point location, Bole received 2 - 3's for point 1; a zero and a 3 for point 2; and a 4 and a 3 for point 3. For length of needle/angle of insertion/manipulation, he received scores of 3 and 2 for point 1; 2 and 3 for
point 2; and 3 and 4 for point 3. Bole also received a mark of at least one fail by both examiners in the sanitation part of Part IV. Any grade of fail in the sanitation portion of the examination results in a final grade of fail.
Bole testified he holds a Ph.D. in psychology and has been practicing acupuncture under the supervision of a medical doctor. He studied the recommended texts to prepare for the examination, but relied on his experience, past training and instruction to proceed as he would with a patient in his own clinic, in demonstrating his proficiency in traditional Chinese acupuncture.
Bole testified he inserted the needle at an angle with the flow when directed to tonify and against the flow when directed to sedate. He also demonstrated closing the hole or leaving the hole open as appropriate. He used the same swab to clean all points as well as to seal the hole and he used 1-1/2 inch needles for all points. Bole acknowledged that knowing length of needle used allows the examiner to determine the depth the needle is inserted. His principal objection is that insufficient directions were given to applicants for the applicants to understand exactly what they were expected to demonstrate.
Harvey J. Kaltsas failed Part IV of the August, 1982, examination by reason of the low scores he received in accuracy of locating acupuncture point and length of needle/angle of insertion/manipulation. On point location Kaltsas received passing grades of 3 by each examiner for points 1 and 2, but for point 3, received grades of 0 and 2. For length of needle/angle of insertion/manipulation he received a 2 from each examiner for point 1, a 3 from each examiner for point 3, and one 2 and one 3 for point 2. Kaltsas testified that in his training, the angle of insertion of the needle is the most important factor in needling. To prepare for the examination Kaltsas studied the texts recommended in Exhibit 10 and assumed the examiners would be looking for methods of tonification and sedation discussed in the books on traditional Chinese acupuncture. For each of the three points he was told to tonify or sedate, he inserted the needle perpendicular to the skin. Kaltsas also testified he didn't think the examiners were looking for point location because they didn't take physical measurements to check the accuracy of each point he needled.
Petitioner Marie Burleson failed Part IV of the August, 1982, examination partly as a result of running out of time before point 3 was needled. However, even if the score on point 3 could be ignored, Burleson would have failed all of the criteria except "needle manipulation and removal." For the accuracy of location of the two points needled, Ms. Burleson received two 2's for point 1 and one 2 and one 3 for point 1. Zeros were given for point 3. For length of needle/angle of insertion/ manipulation, Burleson received a score of 3 from one examiner for points 1 and 2, but a score of 1 from the other examiner. For a "condition of needle" Petitioner received a score of 4 from one examiner for points 1 and 2, but received a score of 0 and 3 from the other examiner. Both the examiners scored Burleson zero on point 3. Burleson attributed her difficulty in not completing point 3 to the fact that she had no comfortable place to put her foot while she was needling the leg. She testified that when she started to insert the needle in point 3, her foot slipped off the chair and the needle was bent. Burleson is a graduate of an acupuncture school in California from which she took most of her studies by correspondence. She spent only one month full-time in classrooms before graduation. At the examination, Burleson used a one-inch needle inserted perpendicular to the skin for both points 1 and 2. She demonstrated closing the hole for the two points tonified.
Petitioner Henry Meritt failed Part IV of the August, 1982, examination as the result of failing all of the criteria except "condition of needle" for which he was graded a 3 by each examiner for each of the 3 points.
He also failed the sanitary part of Part IV with respect to his handling of needles. For accuracy of location of acupuncture point Meritt scored 3's for points 1 and 2 and zero for point 3 by both examiners. For length of needle/angle of insertion/manipulation, Meritt scored a zero and 2 for point 1, two 2's for point 2, and a zero and a 3 for point 3. For "needle manipulation and removal" both examiners scored Meritt zero for points 1 and 2 and he received a 2 and a 4 for point 3. Meritt contends he was not instructed to demonstrate how he located the points to be needled and that he thought, as did others, that point location was to be graded only in Parts II and III of the examination. In view of Finding of Fact 5 above, that point location is the most important element in acupuncture, such contentions are simply not credible. Without inserting the needle on the point or at least on the meridian on which this point is located, the desired results are not obtainable. This Petitioner testified tonification is obtained simply by leaving the needle inserted and without manipulation, that he used 1-1/2 inch needles for all points, that it was immaterial what length needle he used because they were inserted only 1/4 inch and that his two examiners were unprofessional during the time he was in the room taking his practical examination. He graduated from Doctor Dale's Institute in New York and refers to himself as Dr. Meritt although he has no doctoral degree in medicine or anything else.
Petitioner Charles McWilliams failed Part IV of the August, 1982, examination by reason of obtaining a total score from both examiners below that required for passing in all of the criteria tested except "condition of needle - handle comes in contact with skin" on which he received a score of 3 from each examiner for each of the 3 points. For accuracy of location of acupuncture points, examiner A gave him a 4 for each of the 3 points, while examiner B awarded him scores of 3, 2 and 0 for points 1, 2 and 3, respectively. For length of needle/angle of insertion/manipulation for point 1 he received scores of 1 and 2; for point 2 scores of 2 and 3; and for point 3 scores of 2 and 2. For "needle manipulation and removal" for point 1 he received scores 2 and 0; for point 2 scores of 2 and 0; and for point 3 scores of 0 and 3. McWilliams testified he understood the practical part of the examination would be based on the texts to which he had been referred in Exhibit 4; that he angled his needle; that a 1-1/2 inch needle was used to tonify Stomach 36 (point 1) and Spleen 10 (point 2) and a 1-inch needle was used to sedate Gall Bladder 41 (point 3); that when he withdrew the needle from point 3, a drop of blood appeared and he put a swab on the hole; and if the latter motion constituted closing the hole, he closed the hole at point 3. McWilliams does not adhere to the theory that closing the hole or leaving the hole open is effective in tonification or sedation.
Petitioner James Bissland failed Part IV of the August, 1982, examination because of failing scores received in accuracy of location of acupuncture point and length of needle/angle of insertion/manipulation and because he received a fail score from examiner A on the use of antiseptic solution on the skin prior to needle insertion on all three points needled. Bissland's scores for accuracy of point location were 2's for points 1 and 2 and 3's for point 3. For length of needle/angle of insertion/manipulation he scored a 1 and a 2 for point 1; a 1 and a 2 for point 2; and 2's for point 3. Bissland contends he did not know he would be graded on accuracy of point location but, had he known, he would have done nothing different than he did on the examination. Bissland studied the texts referred to in Exhibit 4 and expected Part IV of the examination to be a demonstration of the knowledge presented in Parts II and III. When told (by Exhibit 5) that he should demonstrate to the examiners the procedures he used in his own clinic, Bissland testified that is what he did. For each point Bissland used a 1-inch needle and a Japanese
shallow needle technique with each needle penetrating 1/4 to 1/2 inch. No angling of the needles was performed. Bissland normally provides stimulation by electricity and does not angle the needles unless anatomically necessary. Since he was advised that electrical stimulation would not be allowed on the examination, he demonstrated slow and rapid insertion of the needle, slow and rapid rotation of the needle, and what he considered proper removal of the needle.
Petitioners' expert witness, Peter Lu, took and passed the acupuncture examination in August, 1982. His father and grandfather were both Chinese medical doctors and Lu graduated from Hong Kong Western Pacific College where he studied acupuncture and Chinese medicine for four years. He considers point location and depth of needle insertion very important in acupuncture and an examiner can judge the depth of insertion by the length of the needle used. He was taught for tonification to angle the needle with the flow and to close the hole to prevent the escape of energy. For sedation he was taught to angle the needle against the flow and to leave the hole open to release the undesirable energy. Lu would consider a demonstration unsatisfactory if an examinee bent a needle while needling himself.
Petitioners presented an expert witness who opined that test results on a practical examination were unreliable when two examiners on a scale of 0 to
4 gave scores 3 or more points apart. Here, the examiners were directed to give the applicant being tested a passing score if they could not clearly see what the applicant was demonstrating. This expert also testified the grades are unreliable where one examiner awards a pass and the other a fail. On the sanitation and antiseptic application part of the examination, the only grades authorized are pass and fail. At one point on the scale on which such performance is weighed there must be a equipoise between pass and fail. Thereafter, whichever way the scale is tilted determines the grade assigned. In this examination, the two examiners agreed on the grade to be assigned for 81 percent of the applicants. Part of the 19 percent on which they disagreed can be attributed to the instructions to award a pass score if the demonstration couldn't be clearly seen by the examiner. Even without this instruction, a difference of only 19 percent is a reasonable deviation in scores assigned by two examiners.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Among the requirements for certification to practice acupuncture included under Section 468.233(2)(c) is that the applicant
Passes an examination, administered by the Department, which tests the applicant's competency and knowledge of the practice of acupuncture. The examination shall include a practical examination of the skills required to practice acupuncture, covering diagnostic techniques and procedures, point/meridian selection, needle insertion, manipulation and removal, patient care, sanitation and antiseptic application . . .
Of those skills whose demonstration is required on the practical clinical portion of the examination, point/meridian selection, needle insertion, manipulation and removal are skills strongly emphasized in the art of traditional Chinese acupuncture. Knowledgeable acupuncturists should recognize that a technique calling for needle removal carries with it something different than simply withdrawing a needle and that a demonstration of closing the hole or leaving the hole open is implicit in this technique.
Section 455.217(1), Florida Statutes, provides in pertinent part:
(b) 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 scores 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 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.
The various boards to which Chapter 455 speaks are those established pursuant to Section 20.30, Florida Statutes. No acupuncture board is there established and consequently there is no board to promulgate the rules referred to in Chapter 455.
As noted earlier, licensing of individuals as certified acupuncturists is relatively new in Florida and only two examinations so far have been given. Absent rules, the examinations must comply with the statutory requirements.
The only real issues in these proceedings are whether the practical portion of the examination given in August, 1982, complied with the statutory requirements above-quoted and whether the examination was conducted in a fair and impartial manner.
Although individual Petitioners testified that their examiners were unprofessional (in dress, conduct, language and manner of conducting the examination), the competence of these examiners was not seriously questioned. Some of Petitioners' experts opined that the accuracy of point selection could only be determined by measurement and then palpation; however, none of the witnesses so testifying had the experience of the examiner nor have they ever served as an examiner. As noted in the findings above, an experienced acupuncturist could come within 1/2 inch of a designated point by "eye balling" the space between two anatomical landmarks.
Rule 21-12.22, Florida Administrative Code, was adopted by Respondent prior to the August, 1982, acupuncture examination. Therein the statutory requirements for a practical examination are repeated and the grading scale to be used on the examination is set forth. While no rule has been promulgated by an acupuncture board establishing the qualifications for examiners of the clinical practical portion of the examination as required by Section 455.217(b), Florida Statutes, there is no acupuncture board to enact such rule. Even if this statutory provision could be interpreted to require Respondent to promulgate such rules when no board exists, failure to do so constitutes
harmless error when, as here, no evidence has been submitted indicating the examiners are not fully qualified. Peoples Bank of Indian River County v. State of Florida, et al., 395 So.2d 521 (Fla. 1981).
Further, the fact that no rule for qualification of examiners was extant at the time these examiners were selected does not necessarily mean their appointment was void. Barker v. Board of Medical Examiners, Department of Professional Regulation, 428 So.2d 720 (1983). The penalty in such a case is the agency must defend the non rule policy used to select examiners. Id. Here this agency has clearly met that requirement.
The burden is on Petitioners to establish by a preponderance of the evidence that in conducting this examination the Respondent did not establish appropriate tasks or criteria to adequately test an applicant's competency and knowledge of the practice of acupuncture. The practical portion of this examination followed closely the statutory requirement. Respondent interprets those requirements to comprise demonstrations of those techniques espoused by the traditional Chinese school of acupuncture. The agency's interpretation of the statute it is called upon to enforce is entitled to great weight. San Souci
v. Division of Florida Land Sales and Condominiums, Department of Business Regulation, 421 So.2d 623 (Fla. 1st DCA 1982). The statutory language, especially, "point/meridian selection, needle insertion manipulation and removal," refers to traditional Chinese acupuncture techniques and supports this interpretation of the statute.
Petitioners' primary complaint is that they were not more adequately apprised of exactly what they were required to demonstrate to the examiners on this clinical practical portion of the examination. Their argument that they were told to perform similar to the methods used in their clinics, that in their practice they do not angle the needle or close the hole or leave the hole open; and therefore, they should not be required to demonstrate those techniques in the examination, is without merit. Most of the Petitioners are aware of the various acupuncture techniques espoused by traditional Chinese acupuncturists but declined to demonstrate such techniques during their examination. These examinees apparently overlooked the fact that on an examination the examinee is generally required to "go by the book," otherwise he fails to demonstrate that he knows what the examination is intended to divulge.
It is undoubtedly true that some of these Petitioners would have passed the clinical practical portion of this examination if they had known exactly what the examiners expected them to demonstrate. This does not mean that they should have been given such explicit instructions. The bibliography, the wording of the statute and the directions to "tonify using the correct angle and needle manipulation" should certainly place the examinee, with a modicum of training, on notice that he was being graded on his demonstration of traditional Chinese acupuncture techniques.
From the foregoing it is concluded that Petitioners have failed to show, by a preponderance of the evidence, that the clinical practical portion of the August, 1982, acupuncture examination was unfair or improper or that they were improperly or unfairly graded on this examination. It is
RECOMMENDED that all of these petitions be dismissed.
ENTERED this 26th day of May, 1983, at Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1983.
COPIES FURNISHED:
Carlos Alvarez, Esquire and Carolyn S. Raepple, Esquire Post Office Box 6526 Tallahassee, Florida 32314
Drucilla E. Bell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
H. F. Bevis, Director Division of Professions
Department of professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION
WILLIAM DUFF SKELTON, ET AL.,
Petitioner,
vs. | CASE | NOS. | 82-3041, | 83-069 |
83-070, | 83-071 | |||
DEPARTMENT OF PROFESSIONAL | 83-072, | 83-073 | ||
REGULATION, | 83-074, | 83-075 | ||
83-076, | 83-077 | |||
Respondent. | 83-078, | 83-079 | ||
/ | 83-452 |
FINAL ORDER
THIS MATTER came on to be heard before the Honorable Fred Roche, Secretary of the Department of Professional Regulation, to determine whether the Petitioners should be licensed as acupuncturists in the State of Florida.
Having reviewed the complete record in this matter, including exceptions filed by the Petitioners and having heard oral argument in this matter, it is ORDERED AND ADJUDGED:
The Findings of Fact of the Hearing Officer are supported by the evidence in the record, except as follows:
In Finding of Fact #3, on page 6, there is an error in the statements regarding the grading of point location and length of needles/angle of insertion/manipulation, which should read "In the former a passing grade was given if the candidate was 1/2 inch off point and on meridian. A superior grade resulted if the candidate was exactly on point and on meridian. In the latter the candidate received a passing score if he got all three, viz, angle of insertion, length of needle and/or manipulation, correct."
In Finding of Fact #5, in line 4, instead of "at the examination", it should read "after administration of the examination."
In Finding of Fact #7, line 3 should read "of Petitioner's point/meridian location through the examiners' use", instead of "examinees".
In Finding of Fact #15, on page 10, line 3, it should read "these techniques, depth of needle insertion, angle of insertion, and", as the word "insertion" after needle was deleted.
In Finding of Fact #21, on page 12, line 7, it should read "not read to them, while all of the examiners who testified, stated that Exhibit 10".
In Finding of Fact #22, line 14, it should read "was not surprised by the tasks he was asked to perform on the".
In Finding of Fact #24, on page 15, lines 10, 11, and 12, that sentence should read "applicants were given a failing score of 2 points if not angled correctly, and were given a passing score if this technique was demonstrated."
In Finding of Fact #27, line 6, it should read "for point 1 a 0 and a 3; for point 2 - 2 zeros; and for point 3".
In Finding of Fact #29, page 18, line 7, should read "received two 2's for point 1 and one 2 and one 3 for location on point 2".
In Finding of Fact #31, on page 20, lines 7 and 8, it should read "accuracy of location of acupuncture points, examiner B gave him a 4 for each of the 3 points, while examiner A awarded".
In Finding of Fact #34, on page 23, line 1, it should read "agreed on the grade to be assigned for overall pass/fail determination of 81 percent of the applicants".
The Findings of Fact, as modified in paragraph one, support the Conclusions of Law that the Department prepared the August 1982 licensure examination for acupuncture which tested a candidate's minimal competency in the theory and practice of this profession in that the Petitioners having the burden of proof have not shown by a preponderance of the evidence that the Department arbitrarily land capriciously failed to give them passing grades on the acupuncture examination in question, or that there was a fatal infirmity in the manner in which the examination was developed, administered and/or graded. The evidence further supports the conclusion of law that the Department did adopt grading criteria, as required by Section 455.217(1)(b), Florida Statutes, which is in Rule 21-12.22(5)(a)-(e), Florida Administrative Code; that the failure of the Department to adopt rules regarding the criteria for examiner selection was harmless error in that at no time were the credentials or competency of the examiners challenged.
That the recommendation of the Hearing Officer is hereby adopted and that the applications of the Petitioners for licensure as acupuncturists be denied, based on their failure to achieve a passing grade on the August 1982 acupuncture examination.
DONE and ORDERED this 23rd day of August, 1983, in Tallahassee, Florida.
Fred Roche, Secretary
Department of Professional Regulation
COPIES FURNISHED:
Carlos Alvarez, Esq.
and Carolyn S. Raepple, Esq.
Post Office Box 6526 Tallahassee, FL 32314
K. N. Ayers, Hearing Officer
| Issue Date | Proceedings |
|---|---|
| Aug. 25, 1983 | Final Order filed. |
| May 26, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 23, 1983 | Agency Final Order | |
| May 26, 1983 | Recommended Order | Cases challenging the clinical practical portion of state acupuncture exam fail to show exam was improper or grading of exam improper. |
