STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM S. HUANG, )

)

Petitioner, )

)

vs. ) CASE NO. 83-490

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on August 17, 1983, in Orlando, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: William S. Huang

697 East Altamonte Drive Altamonte Springs, Florida 32701

For Respondent: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

This matter arose on Petitioner's challenge to the grade he received on Respondent's acupuncture licensing examination- . Respondent submitted proposed findings of fact. Those findings not incorporated herein are found to be either sub- ordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Petitioner was an applicant for licensure to practice acupuncture in the State of Florida and took the acupuncture licensing examination in August, 1982.

   
   

2. Information was provided to the candidate prior to the administration of the examination which identified refer- ence books to study for the written part of the examination. This included an outline of Chinese acupuncture which explained the technique of opening and closing the hole. There were no texts specified for the practical examination.

   
   

3. The acupuncture technique of opening or closing the hole for sedation or tonification was graded as part of the removal portion of the examination. However, Petitioner did not utilize the acupuncture technique of opening or closing the hole as part of his removal technique and was penalized for this omission.

4. The acupuncture examiners were professional examiners from California who are familiar with the different schools of acupuncture thought. Grading procedures were standardized in advance of examination administration and examiners were requested to utilize their professional judgment in assigning grades on each criteria in the performance of three needle insertions.

   
   

5. Petitioner contends that he should not have been penalized for failing to close or leave open the acupuncture hole upon needle removal. In the view of Respondent's experts and as stated in the reference material (outline of Chinese acupuncture) this is an essential procedure relative to sedation and tonification. Therefore, Petitioner was correctly graded as to needle removal.

   
   

6. Petitioner contends that he would have passed the examination had the practical portion scores been averaged. Under the grading procedures followed by Respondent, Part III (diagnostic written portion) and Section A, Part IV (technique) of the practical examination are graded separately, and the candidate must obtain a satisfactory score on each section. Respondent's separate grading procedures are consistent with Section 468.323, Florida Statutes (Supp. 1982). This provision requires the candidate to cass an examination which tests his knowledge and competency in specified areas including needle removal. This could not be accomplished if an unacceptable score in needle removal were permitted merely because Petitioner did well on other portions of the practical examination.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 468.323, Florida Statutes (Supp. 1982), provides in part:

   
   

   1. It is unlawful for any person to practice acupuncture in this state unless such person has been certified by the department.

   2. Prior to July 1, 1983, a person may become certified to Practice acupuncture if the applicant:

      * * *

      (c) 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 anti- septic application; .

      
      

8. The above procedures require the administration of the examination at issue here. Respondent's examination and the administration of it conform to these provisions and the requirements of Chapter 21-11, Florida Administrative Code.

   
   

9. Petitioner, who seeks to have his individual examination amended, has the burden of persuasion in these proceedings. Florida D.O.T. v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet such burden, having demonstrated no errors by Respondent which were not resolved in his favor, or departure from statutorily required testing and grading procedures.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Respondent enter a Final Order denying the petition.

DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida.

R. T. CARPENTER 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. William S. Huang 697 E. Altamonte Drive

Altamonte Springs, Florida 32701

Drucilla E. Bell, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ann Mayne, Executive Director Board of Acupunture Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Flori4a 32301

Docket for Case No: 83-000490

Orders for Case No: 83-000490