STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY A. DIETHELM, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4476

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MASSAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on January 6, 1988, in Clearwater, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows: For Petitioner: Kimberly A. Diethelm, pro se

6450 78th Avenue North, Apartment 21

Pinellas Park, Florida 34665

For Respondent: Bill O'Neil, Esquire

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

BACKGROUND

Petitioner took the May, 1987, examination for a massage license. Shortly thereafter, Respondent notified Petitioner that she had passed the practical portion of the examination but failed the written portion. She received a score of 67. The minimum passing score was 70. After review of the examination with Respondent, Petitioner filed a written request on July 29, 1987, for a formal hearing concerning the fairness of her failing grade on the written portion of the examination.

Initially, Petitioner objected to six questions. By letter dated October 1, 1987, Respondent noted that it gave all candidates credit for question number 29, which was one of the questions to which Petitioner had objected.

Just prior to the hearing, the parties resolved Petitioner's objection to certain of the disputed questions. The parties announced at the commencement of the hearing that the remaining dispute involved only three questions.

Petitioner presented two witnesses. Respondent presented one witness.

Petitioner offered into evidence only a single exhibit, which consisted of the text of the three disputed examination questions. This exhibit was admitted into evidence. Respondent offered no exhibits into evidence. Reference was made during the hearing to certain standard textbooks.

Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner took the May, 1987, massage examination. She failed the written portion of the examination. She needed 70 points to pass and earned only 67. Each question on this portion of the examination was worth one point.

   
   

2. Petitioner has challenged the following questions:

   
   

   15. Which of the following is not a type of connective tissue?

   
   

   1. bone

   2. cartilage

   3. lymph

   4. blood ANSWER: C

   29. Which of the following is not an effect of a hot foot bath?

   
   

   1. relieves congestive headache

   2. general warming of the body

   3. reduces edema of feet and ankles

   4. relieves chest congestion ANSWER: C

   73. Which of the following is not an appropriate stroke to apply to the abdomen?

   
   

   1. percussion (tapotement)

   2. centripetal stroking

   3. kneading (petrissage)

   4. all are appropriate strokes for the abdomen ANSWER: A

3. Petitioner's answer to question number 15 was bone." "Bone" is clearly incorrect. Petitioner and her witness, Sherry Fears, who owns and operates the school of massage that Petitioner attended, testified that the word "lymph" connotes the entire lymphatic system including lymph nodes. Lymph nodes are connective tissue. However, the Anthony and Thibodeau massage textbook which Petitioner used in school and upon which Petitioner relies distinguishes clearly between lymph and lymph nodes.

   
   

4. Petitioner's answer to question number 29 was that a hot foot bath would not relieve a congestive headache. Respondent's witness, David Boltin, Examination Review Specialist for Respondent, admitted that Petitioner's answer

   was "less wrong" than the answer for which Respondent gave credit. A hot foot bath is effective to reduce inflammation, which is an important cause of edema or swelling.

   
   

5. Petitioner answered question number 73 by stating that all strokes are appropriate. In part, she justified her answer on the assertion that the practical portion of the examination required the use of percussion strokes to the abdomen. Mr. Boltin testified that, if such strokes were required during the practical portion of the examination, it was only to demonstrate the candidate's knowledge of the stroke and not to endorse the use of the stroke in the area in which it was applied. Mr. Boltin testified that it was impractical to have a candidate use different, and possibly more appropriate, portions of the body to demonstrate the series of strokes tested during the practical portion of the examination. Mr. Boltin also testified that 77% of the candidates gave the correct answer to this question. However, Petitioner produced at the hearing a recognized massage textbook that prohibits percussion strokes to the abdomen "without specific orders from the physician." Respondent did not contest the accuracy of this qualification to the general prohibition against this stroke to the abdomen.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes, and Rule 21-11.012, Florida Administrative Code.

   
   

7. Respondent is charged with the responsibility of licensing duly qualified persons seeking to practice massage in the State of Florida. Section 480.041, Florida Statutes. Respondent is also required to administer the licensing examination, which must be passed in order to receive a license to practice massage in the State of Florida. Section 480.042, Florida Statutes.

   
   

8. The examination must "adequately measure ... an applicant's competency." Section 480.042, Florida Statutes. To measure adequately a candidate's competency, the questions must be fair and Respondent must give credit for correct answers and not wrong answers.

   
   

9. Petitioner deserves no credit for her inaccurate answer to question number 15. The question was clear and unambiguous.

   
   

10. Petitioner deserves credit for her answer to question number 29. Her answer was admittedly superior to the answer for which Respondent gave credit. Giving credit to Petitioner for her answer to this question is consistent with Respondent's prior decision, reported in its letter of October 1, 1987, giving all candidates credit for this question.

    
    

11. Question number 73 raises more difficult problems. Assuming that candidates were required to demonstrate a percussion stroke to the abdomen, Respondent has invited confusion as to the suitability of this stroke to the abdomen. Also, in view of the limited suitability of the stroke, the question would have been clearer if phrased in a qualified manner, such as: "Which of the following is not an appropriate stroke to apply to the abdomen without specific orders from a physician?" On the other hand, over three-quarters of the candidates answered the question correctly. In addition, Petitioner's answer is incorrect. It simply cannot be said that all three of the listed strokes are appropriate strokes to the abdomen. The percussion stroke is

appropriate only under a physician's orders. Although it is a close question, Petitioner does not deserve credit for her answer to question number 73.

Based on the foregoing, it is hereby

RECOMMENDED that Respondent enter a Final Order determining that Petitioner failed the written portion of the May, 1987, massage examination by two points, subject to any further point recalculations permitted by Respondent's policy as a result of any other successful challenges to other questions on the subject examination for which Petitioner received no credit.

DONE and RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 27th day of January, 1988.

COPIES FURNISHED:

Bill O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kimberly A. Diethelm 6450 78th Avenue North No. 21

Pinellas Park, Florida 34665

Tom Gallagher Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Linda Biedermann Executive Director Board of Massage

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004476

Orders for Case No: 87-004476