STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD D. MAYFIELD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-451

)

DEPARTMENT OF PROFESSIONAL )

REGULATION (ACUPUNCTURE), )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in Lakeland, Florida, on July 21, 1983, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon a petition for hearing filed by the Petitioner, Donald D. Mayfield, which alleges that the respondent, Department of Professional Regulation, failed to fairly examine the Petitioner as required by Section 468.323, Florida Statues,, thereby denying Petitioner a license to practice acupuncture. The Petitioner's request for an administrative hearing was timely, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to the provisions of Section 120.57, Florida Statutes.

APPEARANCES

For Petitioner: Donald D. Mayfield, pro-se

211 Hoffman Court Casselberry, Florida 33707

For Respondent: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

PROCEDURAL BACKGROUND

The sole issue raised in this proceeding was whether the instructions given to the Petitioner were adequate to permit him to reasonably perform the practical examination administered by the Department.

Both parties submitted proposed findings of fact, which were read and considered. Those findings not incorporated herein unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. On August 2, 1983, the Petitioner, Donald D. Mayfield, took the examination to practice acupuncture administered by the Department of Professional Regulation.

2. The Petitioner's performance on the practical examination is completely documented in Joint Exhibit 3. This exhibit reflects that the Petitioner passed all portions of the practical examination except Part IV, which part must be passed in order for an applicant to be licensed.

   
   

3. Pages 2 and 3 of Joint Exhibit 3 reflect the Petitioner's scores on specific requirements upon which he was examined. Specifically, the Petitioner takes issue with the scores on times numbered 8, 10, 13, 15, 18 and 20. These items relate to insertion of the needle and withdrawal of the needle. The Petitioner failed to obtain at least an average score of 3 on item number 13 as graded by one grader, on item number 10 as graded by the other grader, and on item number 20 as graded by both graders.

   
   

4. The instructions received by the Petitioner prior to the examination were contained in Joint Exhibit 1. The instructions received by the Petitioner at the examination were received as respondent's Exhibit 1. The Petitioner stated that these instructions were not read to him in full when he was beginning the practical examination. No evidence to the contrary was received, and the testimony of his examiners was not offered.

   
   

5. The instructions received by the Petitioner directed him to perform required procedures in the manner he would perform them in his clinic. The Petitioner performed these operation without angling the needle in the direction of the flow of force and without regard to leaving the hole open or closed.

   This is the manner in which he performs these operations in his clinic, and this method of acupuncture is a widely accepted practice among more modern schools of acupuncture. These methods are, however, contrary to the classic Chinese procedures.

   
   

6. The examiners deducted points because the classic technique was not used. Nothing in the instructions would have indicated that the classical technique was required except directions contained in Respondent's Exhibit 1, which contained the language that the procedures should be performed by "properly angling the needle." These instructions were not read to the Petitioner.

   
   

7. In the absence of these instructions, the Petitioner could not reasonable be aware that the examiners expected him to use classical techniques. The failure of the examiners to score the Petitioner's performance on the basis of the instructions which he received, i.e., "perform the procedures as you would in your own clinic," constitutes an essentially unfair means of grading the examination.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Department of Professional Regulation is charged under Section 468.233(2)(c), Florida Statutes, with administering a practical examination for applicants for licensure in acupuncture. The Department has authority to administer this examination and authority to enter a Final Order in this cause pursuant to said statute. This Recommended Order is entered pursuant to the provisions of Section 120.57, Florida Statutes.

   
   

9. The Petitioner's only issue is whether the grading of his examination was fair given the instructions he received on the practical examination. The evidence is introverted that angling of the needle and leaving the hole open or closed, while accepted in classic Chinese acupuncture, are not required in other

   widely accepted schools of acupuncture. The only instructions that would have put the Petitioner on notice that grading was based on classic principles were not read to the Petitioner. The Petitioner performed the practical examination in accordance with the instructions he received, i.e., as he would have performed the procedures in his clinic. His procedures were in accordance with accepted principles of acupuncture. The sole reason the Petitioner did not get credit for these procedures was his failure to angle the needle and to have the hole open or closed in accordance with classical principles. The instructions received were ambiguous and permitted the Petitioner to perform the procedures in accordance with the school of acupuncture used in his clinic. It was unreasonable and arbitrary to reduce the Petitioner's grade because he failed to follow the classical procedures.

   
   

10. Rule 21-12.22, Florida Administrative Code, provides that acceptable performance by an examinee on the practical examination shall receive an award of three points. Therefore, the Petitioner should be given no less than an acceptable grade of three points on those items in dispute. This would add a total of six points to the scoring of item number 20, three points to the scoring of item number 13, and one point to the scoring of item number 10. The amended sum of scores by each examiner for the three procedures would be as follows: 14, 12, 11, 11, 13 and 13. The amended totals for each point (procedure) is as follows: 26, 22 and 26. The resulting averages are as follows: 3.25, 2.75 and 3.25. The total of the average scores for all three points is 9.25, and the average score for all three points is 3.083. Rule 21- 12.22, Florida Administrative Code, also provides that in order to pass Part III and Section 1 of Part IV of the practical examination, an applicant must obtain an overall score of 3 or better. After having his score adjusted to reflect his acceptable performance on the items in question, the Petitioner passed the examination.

    
    

    RECOMMENDATION

    
    

11. Having found that the Petitioner, Donald D. Mayfield, has proven that the examination give by the Department of Professional Regulation was not scored reasonably and fairly in consideration of the directions of Petitioner was given, and that the Petitioner did perform acceptably under the instructions he was given, and that his amended scores totaled more than 3 on Part III of the examination (the only part which he initially failed), it is recommended that the Department issue the Petitioner a license to practice acupuncture.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of September, 1983.

STEPHEN F. DEAN

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 29th day of September, 1983.

COPIES FURNISHED:

Mr. Donald D. Mayfield

211 Hoffman Court Casselberry, Florida 33707

Drucilla E. Bell, Esquire Department of Professional

Regulaion

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe St. Tallahassee, Florida 32301

Marcelle Flanagan, Executive Director Board of Acupuncture

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000451

Orders for Case No: 83-000451