STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

ANDREW I. LEVY, )

)

Petitioner, ) CASE NO. 88-1145

)

vs. )

)

FLORIDA BOARD OF PODIATRY, )

)

Respondent )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases on May 17, 1988, at Tampa, Florida.

APPEARANCES

For Petitioners: Gardner W. Beckett, Jr., Esquire

123 Eighth Street North

St. Petersburg, Florida 32701

For Respondent: William A. Leffler, III, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

By letters dated January 25, January 29, and February 8, 1988, Phillip DeCubellis, Richard J. Elliston, Darrall J. Moore, Claudia Samuel-Spence, and Andrew I. Levy, Petitioners, by and through their attorney, requested hearings to challenge the grades awarded them on the July 1987 Podiatric Medicine License Examination by the Department of Professional Regulation, Examination Services. All Petitioners challenged the grades on identical grounds, and these cases were consolidated for hearing.

As grounds for the challenge, it is alleged:

1. The examination was unreasonably harsh (67% failed) and as such was a violation of substantive due process under the Fourteenth Amendment to the federal constitution and the corresponding provision of the Florida Constitution.

   
   

2. There is no official "source" (or authority) for each question on the examination which establishes its officially correct answer.

   
   

3. There is an inadequate (unreasonable) procedure for documenting the correctness of an answer which has been rejected (no references allowed at the informal review session).

   
   

4. No procedure exists for challenging the correctness of answers which were not challenged at the review session.

   
   

5. No check is made by the Board to verify the statistical performance of each question on the examination.

   
   

6. Through machine error credit for some of this candidate's and other candidates' answers in one section of the examination was transferred and credited to a different section, resulting in a higher or lower score in the section to which the transfer was made than would have resulted had only answers been used which were attributable to that section. Because the examination was in nine separate sections, each of which a candidate had to pass, this not only failed candidates who would have passed, but also passed candidates who would have failed.

   
   

7. Error was committed with respect to every examination question to which objection was made by this candidate at the informal review session as to the official answer thereto, and for which credit for a correct answer was not then given to this candidate as a result of his objection.

   
   

8. No written explanation was ever provided to this candidate as to the basis upon which his objection to each question objected to by him at the informal review session was overruled and his answer thereto was decided to be incorrect.

At the hearing, Petitioners abandoned claims of error regarding specific questions, and no specific question on the examination was challenged.

Thereafter, Petitioner called five witnesses, Respondent called two witnesses, and twenty exhibits were admitted into evidence.

Proposed findings have been submitted by the parties. Although the parties were granted an extension of time in which to submit proposed findings, they were not received prior to the date to which extended, July 17, 1988. On July 19, 1988, the undersigned called the attorney for Respondent to inquire regarding the status of the proposed recommended orders and, after advising the attorney that no further extension would be granted, a draft recommended order from Respondent was delivered that date with certain information purported to have been submitted by Petitioners. This latter comprises a nine page document which appears to challenge the merit of numerous questions on the examination, although no evidence was presented at the hearing specifically challenging any question. Furthermore, that document cites questions with reference given for the correct answer and comment that Petitioners did not have access to that reference. No evidence was presented at the hearing in this regard.

Accordingly, as a proposed recommended order, that nine page document is rejected as unsupported by evidence presented at the hearing. Treatment accorded Respondent's draft recommended order is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Each of the Petitioners qualified and took the State of Florida examination in July 1987 for licensure as a podiatrist. Initially, there were nine Petitioners in these proceedings, but four were subsequently given a passing grade on review of their examinations, and these four Petitioners were dismissed.

   
   

2. Each of the Petitioners successfully passed national board examinations for podiatrists prior to sitting for the July 1987 examination here at issue, and all failed to receive an average grade of 75% on the nine subjects on which they were examined.

   
   

3. The questions included in the July 1987 examination were taken from a large group of questions assembled into each category or subject on which the applicant for licensure is tested.

   
   

4. To compile these questions and put together an examination, a group of experts in the field of podiatry was assembled to determine the subjects to be included on the examination. These subjects were subsequently enacted in Rule 21T-11.002, Florida Administrative Code. These subjects were referred to "item writers", generally academicians in the field of podiatric medicine, each of whom prepared a minimum of 50 questions on each subject. Upon return of these questions to Respondent, these items were reviewed by five content specialists on the Board of Podiatry to insure the validity of the questions and then placed in the item bank from which a certain number from each subject is withdrawn for the examinations. Not all of the items submitted by the item writers are found valid in this review and added to the item bank. For the 1987 examination, no new items were entered, and all questions used were taken from the item bank. Accordingly, most of the questions had been used on earlier examinations.

   
   

5. In selecting questions for the 1987 examination, certain questions used on the 1986 examination were used so the group being examined in 1987 can be compared to the group examined in 1986. Comparing the correct answers given by the 1986 group of examinees to these questions common to both examinations, with the correct answer given by the 1987 examinees, showed the earlier examinees performed better than the group in which these Petitioners were examinees. Projecting that percentage to the entire examination shows the 1986 examinees scored five to eight points higher than the 1987 group overall.

   
   

6. When the 1987 examinations were scored initially, only some 31% of those taking the examination received a passing grade. These scores were obtained from a computer scoring of the answer sheet submitted. Following receipt of these results, those questions which were marked incorrectly by the highest number of examinees were reviewed and submitted to the Board for review. As a result of this review, some of those questions were credited as being correct if another choice than the correct choice were selected by the examinee or if the exam key was in error. The tests were regraded, and those scores were sent out to the candidates with a notice of their right to challenge questions and answers.

7. Following the candidates being given an opportunity to review the questions and answers on their individual examination with DPR personnel, the Test Development Specialist at DPR, Mrs. Hall, who is in charge of preparing the podiatry examination, again reviewed the questions and answers and presented to the Board a list of questions (by number) for which a large number of examinees had submitted an incorrect answer, to have the Board reconsider to determine if these questions were too difficult and to give credit for any answers as correct. As a result, the Board gave additional credit to all examinees, and four of the original nine Petitioners received a passing grade. A total of 57 adjustments were made in these scorings involving miss-keys, ambiguous questions and too difficult questions.

   
   

8. Petitioner presented two witnesses who purported to testify to the merits of this challenge. Dr. Black is a podiatrist at Bay Pines Veterans Administration Hospital near St. Petersburg who operates a residency program in which he has trained four residents each year for the past five years. Petitioner Ellison is the only resident in Dr. Black's program who failed the Florida Podiatry examination, and Dr. Black considers Ellison to be as fully qualified for licensure as the other residents who completed the program and passed the examination.

   
   

9. Petitioners' other witness, who was also not a Petitioner, was James F. Pruchniewski. This witness was an original Petitioner who received a passing grade on a regrading of the examination and withdrew his petition for hearing. Dr. Pruchniewski opined that the July 1987 podiatry examination was "inferior". He had earlier been a science teacher in high school and had frequently checked examinations prepared by fellow teachers. He has never been involved in preparing professional examinations, but considers the initial 31% passing rate to be outrageously lopsided. In view of this witness' lack of experience or training in preparing or grading professional examinations, his opinions are given little weight.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. In Chapter 461, Florida Statutes, the Legislature finds that the practice of podiatric medicine by unskilled and incompetent practitioners presents a danger to the public health and safety and provides that applicants desiring licensure in Florida to practice podiatric medicine must pass an examination to demonstrate their competency. That chapter established a Board of Podiatric Medicine with authority to make rules governing the practice of podiatric medicine to carry out the purposes of the Chapter.

    
    

12. Pursuant to this authority, the Board in Chapter 21T- 11, Florida Administrative Code, established procedures for administering the examinations, security of the examinations, right of the examinees to review the examination papers following notification of the results of the grading of the examination, and other details pertaining to applying for and taking the examination. Rule 21T-11.002, Florida Administrative Code, establishes nine categories of professional subjects on which the applicants for licensure are to be examined, and provides that an overall passing grade of 75% is necessary to achieve a passing grade. Here none of the Petitioners achieved an overall passing grade of 75%.

13. The Petitioners have the burden to prove, by a preponderance of the evidence, that the grades assigned to them are incorrect and that correcting these grades will result in the assignment of a passing score on the examination. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). No such evidence was presented. To the contrary, at the hearing Petitioners challenged no answer deemed correct for any question on the examination.

    
    

14. This leaves only the claim that the examination was unreasonably harsh as to be a violation of substantive due process under the Florida and United States Constitutions. The only evidence presented by Petitioners to support this position was that a lower percentage passed this examination than passed earlier examinations.

    
    

15. However, on the correctness of the answers to questions common to both the 1986 and 1987 examinations, the 1986 examinees scored much higher than the 1987 examinees. If this difference between correct answers obtained by the two groups of applicants is carried forward to the other questions on the examination, the overall score for the 1987 examinees would increase five to eight points (Finding No. 5). Adding eight points to the grades received by these Petitioners would result in three of them attaining an overall passing average. This fact strongly militates against any finding that the examination was so difficult that it violated due process.

    
    

16. From the foregoing, it is concluded that Petitioners have failed to prove, by a preponderance of the evidence, that they were wrongfully accorded a failing grade on the 1987 podiatric medicine examination or that the examination was so difficult as to violate the due process clauses of the Florida or United States Constitutions. It is

Recommended that a Final Order be entered dismissing the appeals of Phillip DeCubellis, Richard J. Elliston, Darrall J. Moore, Claudia Samuel-Spence and Andrew I. Levy.

ENTERED this 26th day of July, 1988, in Tallahassee, Florida.

K. N. AYERS 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 26th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-1138, 88-1139, 88-1141, 88-1143, 88-1145

Treatment Accorded Respondent's Proposed Findings 1.

1. Included in H.O. #1.

2. Included in H.O. #3 to #5.

3. Included in H.O. #5 and 6.

5, 6, 7, 10, 11, 14. Accepted. Not included because unnecessary to conclusions reached.

8, 9. Included in H.O. #7.

12, 13. Included in H.O. #7.

COPIES FURNISHED:

Gardner W. Beckett, Jr., Esquire

123 Eighth Street North

St. Petersburg, Florida 32701

William A. Leffler, III, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Marcelle Flanagan Executive Director

Board of Podiatric Medicine Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001138

Orders for Case No: 88-001138