STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL C. YU, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4050

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ACUPUNCTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Samuel C. Yu, pro se

Deerfield Beach, Florida

For Respondent: Jeffrey H. Barker, Esquire

Tallahassee, Florida

This matter was heard by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings in Miami, Florida, on March 25, 1987. The parities submitted Proposed Recommended Orders. Rulings on Proposed Recommended Order. No transcript was filed.

ISSUE

The issue is whether Samuel Yu was properly graded for his performance on the acupuncture license exam given July 18, 1986, for the location of acupuncture point Ren. 17 Shanzhong.

FINDINGS OF FACT

1. Samuel C. Yu took the acupuncture examination administered by the State Board of Acupuncture on July 18-20, 1986.

   
   

2. The examination includes demonstration of practical clinical skills.

   
   

3. Dr. Yu received a failing grade for the practical clinical portion of the examination. He challenged the method by which his performance on the clinical examination was graded. If given credit for the location of the point at issue, he would have passed the examination.

   
   

4. In the clinical portion of the examination the candidates are required to locate certain acupuncture points on a person who serves as a model for the examination candidates. A committee of examiners locates the points on the body of the model and, after consultation, marks the point with ink which is invisible except under ultra violet light.

   
   

5. Candidates do not actually insert needles at those points during the examination, but are required to place small adhesive dots at the point

   location. That placement is evaluated by illuminating the area with ultra violet light. If more than half the surface of the adhesive dot is within the point location established with the ultra violet ink, the candidate receives credit for the exercise. If more than 50 percent of the dot is outside of the pre-marked point, no score is given.

   
   

6. The examiners who evaluated Mr. Yu both agreed that he did not correctly identify point Ren. 17 Shanzhong. The Board of Acupuncture had not taken photographs of Mr. Yu's or any other candidates performance. The evidence about Mr. Yu's examination performance was established through oral testimony of Examiner R. Yang.

   
   

7. Although Dr. Yu demonstrated that three of the textbooks recommended by the Board of Acupuncture describe the point Ren. 17 Shanzhong somewhat differently, the variations are not great, and the tolerance area which the examiners establish is sufficiently large so that a minimally competent candidate would be able to locate point Ren. 17 Shanzhong.

   
   

8. The collegial decision of three expert acupuncturists to locate the point on the examination model and choose a further tolerance area provides candidates who have minimal skills a fair opportunity to demonstrate their abilities. The method of administration of the examination in general, and with respect to the grading of Dr. Yu's performance in particular, was fair and valid.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Petitioner has the burden to prove the inaccuracy or the incorrectness of the score received on the acupuncture examination. Rule 28- 6.008(3), Florida Administrative Code.

   
   

10. Mr. Yu's evidence failed to demonstrate that the Board of Acupuncture improperly denied him a license by erroneously scoring clinical practical portion of the acupuncture examination. Alvarez v. Department of Professional Regulation, Board of Acupuncture, 458 So.2d 808 (Fla. 1st DCA 1984).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the petition of Samuel C. Yu for regrading of his preformance on the acupuncture practical licensure examination be DISMISSED.

DONE AND ORDERED this 16th day of April, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4050

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

The filing made by Mr. Yu constitutes a recitation of evidence and argument, but not findings of fact. Consequently, no rulings on the proposals can be made.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 2.

3. Covered in Finding of Fact 3.

4. Rejected as a recitation of evidence.

5. Generally covered in Finding of Fact 6.

6. Covered in Finding of Fact 8.

7. Not adopted as unnecessary.

8. Covered in Finding of Fact 8.

9. To the extent necessary, covered in Finding of Fact 8.

10. Rejected as unnecessary.

COPIES FURNISHED:

Mr. Samuel C. Yu 628 Lock Road

Deerfield Beach, Florida 33442

Jeffrey H. Barker, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Marcelle Flanagan, Executive Director Board of Acupuncture

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004050

Orders for Case No: 86-004050