STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN R. WIEDOW, D.C., )

)

Petitioner, )

)

vs. ) CASE NO. 89-0501

) DEPARTMENT OF PROFESSIONAL ) REGULATION and FLORIDA ) STATE BOARD OF CHIROPRACTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 22, 1989, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward J. Richardson, Esquire

Richard T. Melendi, Esquire Woodlief, Rush, Smith & Richardson

101 East Kennedy Boulevard, Suite 3140 Tampa, Florida 33602

For Respondent: Allen R. Grossman, Esquire

Theresa M. Bender, Esquire Assistant Attorneys General Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Respondent, the Florida State Board of Chiropractic, should grant the application(s) of the Petitioner, Norman

1. Wiedow, D. C., for licensure by endorsement under Section 460.4065, Florida Statutes (1987), on the asserted ground that "the requirements for licensure in [Pennsylvania, where the Petitioner is licensed] are substantially similar to, equivalent to, or more stringent than the current requirements of this chapter [460, Florida Statutes.]"

   
   

   PRELIMINARY STATEMENT

   
   

   In April, 1987, the Petitioner, Norman R. Wiedow, D. C., filed an application with the Florida Board of Chiropractic for licensure by endorsement. The Board denied the application, and the Petitioner requested a formal proceeding under Section 120.57(1), Florida Statutes (1987). During the pendency of the proceeding, the Petitioner re-applied for licensure by

   endorsement in June, 1989. The second application also was denied and, although the written notice of intent to deny the second application had not yet been issued, the parties agreed that both applications would be heard at the final hearing in this proceeding.

   
   

   At the final hearing, the parties presented a Joint Stipulation of Facts and Joint Exhibit 1, consisting of the Board's entire file on the Petitioner's application. The Petitioner also entered into evidence a copy of portions of the Pennsylvania and Oklahoma statutes as Petitioner's Exhibits 1 and 2, respectively. No other evidence or testimony was presented.

   
   

   Explicit rulings on the proposed findings of fact submitted by the parties may be found in the attached Appendix to Recommended Order, Case No. 89-0501.

   
   

   FINDINGS OF FACT

   
   

   1. On April 27, 1987, Petitioner filed an application for licensure by endorsement with the Board of Chiropractic (the Board.) On September 13, 1988, an Order stating the Board's intention to deny Petitioner's application for licensure by endorsement was filed by the Board. Petitioner timely filed a request for formal proceedings resulting in the above-styled matter being placed before the Division of Administrative Hearings.

      
      

   2. As a result of attempts to negotiate a settlement between Petitioner and Respondent, Petitioner filed a second application for licensure on or about June 19, 1989. At the July 27, 1989, meeting of the Board, Petitioner's second application for licensure by endorsement was denied. At the time of the final hearing, an Order had not yet been filed, but was to be forthcoming.

      
      

   3. The grounds for the Board's denial of Petitioner's April, 1987, application were that: Pennsylvania did not require applicants for licensure to receive a score of at least 75% on each portion of the state licensure exam; Pennsylvania did not require completion of continuing education as required of licensees in Florida; and Pennsylvania permitted licenses to be inactive for five years before said licenses became null and void. The Board of Chiropractic determined that the requirements for licensure in Pennsylvania are not substantially similar to, equivalent to, or more stringent than the current requirements of Chapter 460, Florida Statutes. At the hearing, counsel for Respondent waived the grounds regarding inactive licenses and completion of continuing education.

      
      

   4. The grounds for the Board's denial of Petitioner's June, 1989, application for licensure by endorsement are that the Pennsylvania requirements for licensure are not substantially similar to, equivalent to, or more stringent than the current requirements of Chapter 460, Florida Statutes. Specifically, the licensure examination administered by the Pennsylvania State Board of Chiropractic does not cover physical diagnosis and x-ray interpretation of chiropractic and pathology films, both of which are covered in the practical examination given by the Florida Board of Chiropractic as a requirement for licensure.

      
      

   5. Petitioner has taken and successfully completed parts I and II of the National Beard written examination.

      
      

   6. Petitioner has not taken or passed the National Board Written Clinical Competency Examination (which has been administered only since September, 1987).

   7. Petitioner has taken and successfully completed the Pennsylvania state licensure examination in chiropractic.

      
      

   8. Petitioner has been licensed as a chiropractor in Pennsylvania for 6 years.

      
      

   9. The pertinent Pennsylvania law in effect at the time that the Board considered Petitioner's applications for licensure by endorsement is set out in the following portions of Section 625.501 and Section 625.502, 63 Pennsylvania Statutes:

      
      

      s. 625.501 Applications for license

      1. Requirement for licensure.-- An applicant for a license under this act shall submit satisfactory proof to the board that the applicant meets all of the following: (1) Is 21 years of age or older.

         1. Is of good moral character.

         2. Has a high school diploma or its equivalent.

         3. Has completed two years of college or 60 credit hours.

         4. Has graduated from an approved college of chiropractic, with successful completion of not less than the minimum number of hours of classroom and laboratory instruction required by regulation of the board, which minimum shall be at least 4,000 hours.

         5. Has passed the examination required under this act.

         6. Has not been convicted of a felonious act prohibited by the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or of an offense under the laws of another juris- diction which if committed in this Commonwealth would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act, unless the applicant satisfies

            all of the following criteria:

            1. At least ten years have elapsed from the date of conviction.

            2. Satisfactorily demonstrates to the board that he has made sig- nificant progress in personal rehabilitation since the conviction such that licensure of the appli- cant should not be expected to create a substantial risk of harm to the health and safety of his patients or the public or a substantial risk of further

               criminal violations.

            3. Satisfies the qualifica- tions contained in this act.

         An applicant's statement on the application declaring the absence of a conviction shall be deemed satisfactory evidence of the absence of a conviction, unless the board has some evidence to the contrary. As used in this section the term "convicted" shall include a judgment, an admission of guilt or a plea of nolo contendere.

         * * *

         s. 625.502. Examination

         * * *

      2. Nature and content of examination.-- The examination shall be oral, practical and written, upon the principles and technique of chiropractic and shall include the following subjects: anatomy, physiology, histology, chemistry, pathology, physics, bacteriology, diagnosis, hygiene and sanitation, symptomatology, chiropractic analysis,

      x-ray, chiropractic principles and a practical demonstration of chiropractic technique.

      * * *

      1. Testing organization.-- All written, oral and practical examinations required under this section shall be prepared and administered by a qualified and approved professional testing organization in accordance with section 812.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929, except that the oral and practical examinations shall not be subject to section 812.1 until such examinations are available from a testing organization.

      2. Score.-- A license shall be granted to an applicant who meets the requirements of this act and who achieves:

         1. An overall score of at least 75% on the entire examination; or

         2. An average score of at least 75% on the oral and practical examina-

      tion and a passing score on the written examination administered by the National Board of Chiro- practic Examiners as such

      passing score is determined by the national board.

      
      

      (Emphasis added.)

   10. The Pennsylvania Board of Chiropractic does not have any published rules regarding licensure of applicants in the State of Pennsylvania.

       
       

   11. The Petitioner did not prove that the Pennsylvania Board of Chiropractic examines applicants in the area of x-ray interpretation and physical diagnosis.

       
       

   12. The Petitioner did not prove that the Pennsylvania State Board of Chiropractic required applicants to re-take Pennsylvania's entire examination if any portion was failed.

       
       

   13. The Petitioner did not prove that the requirement of the Florida Board of Chiropractic that applicants for licensure be tested on ability to make physical diagnoses and to interpret chiropractic and pathology x-ray films is unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it creates or maintains an economic condition that unreasonably restricts competition.

       
       

   14. The Petitioner did not prove that the requirement of the Florida Board of Chiropractic that applicants for licensure must re-take the entire licensure examination if any portion of the examination is failed is unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it creates or maintains an economic condition that unreasonably restricts competition.

       
       

   15. The Petitioner did not prove either that it would be unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it would create or maintain an economic condition that unreasonably restricts competition for the Florida Board of Chiropractic to decide that "the requirements for licensure in Pennsylvania are [not] substantially similar to, equivalent to, or more stringent than the current requirements of this chapter [460, Florida Statutes.]" Cf. Section 460.4065, Florida Statutes (1987 and Supp. 1988).

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Petitioner's April, 1987, application for licensure by endorsement is governed by the provisions of Section 460.4065, Florida Statutes (1987), which states in pertinent part:

       
       

       1. The, department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee set by the board, demonstrates to the board that he is of good moral character, is not less than 18 years of age, is a graduate of a chiropractic college as defined in s. 460.406(1)(c), and:

          1. Has held for at least 5 years an active license to practice chiropractic in another state of the United States, the District of Columbia, or a territory of the United States, provided that the requirements for licensure in the issuing jurisdiction are substantially similar to, equivalent to, or more stringent than the current requirements of this chapter; or

          2. Meets the qualifications of s.

             460.406 and has successfully completed a state, regional, or national examination which is substantially equivalent to or more stringent than the examination given by the department.

             
             

   17. Paragraph (b) of the governing statute was amended by Chapter 88-276, Laws of Florida (1988), and Section 460.4065(1)(b), Florida Statutes (Supp. 1988), governing the application the Petitioner filed in June, 1989, 1/ states:

       
       

       1. Meets the qualifications of Section 460.406.

          
          

   18. Under both applications, the Petitioner seeks licensure by endorsement only under paragraph (a) of Section 460.4065(1) of the applicable statute.

       Since paragraph (a) was not affected by the 1988 amendments, the issue under both applications is the same: whether "the requirements for licensure in [Pennsylvania] are substantially similar to, equivalent to, or more stringent than the current requirements of this chapter [460]."

       
       

   19. Pennsylvania's licensure requirements are set out in Sections 625.501 and 625.502, 63 Penn. Statutes. See Finding of Fact 9, above.

       
       

   20. Section 460.406, Florida Statutes (1987), sets out Florida's statutory licensure requirements:

       
       

       460.406 Licensure by examination. -

       1. Any person desiring to be licensed as a chiropractic physician shall apply to the

          department to take the licensure examination. There shall be an application fee set by the board not to exceed $100 which shall be nonrefundable. There shall also be an examination fee not to exceed $250 which may be refundable if the applicant is found ineligible to take the examination. The department shall examine each applicant who the board certifies has:

          1. Completed the application form and remitted the appropriate fee.

          2. Submitted proof satisfactory to the department that he is not less than 18 years of age.

          3. Submitted proof satisfactory to the department that he is a graduate of a chiropractic college accredited by, or has status with an agency or its successor which is recognized and approved by, the U.S. Office of Education or the Counsel on Postsecondary Accreditation or by the department, provided that the department applies the same standards used by the U.S. Office of Education which are applicable to this state when approving an agency. In evaluating any applicant for approval as an accrediting agency, the department shall give

             full recognition to the different philosophies of chiropractic prevailing in the profession and shall not reject any application solely because the accrediting agency is an adherent of one such philosophy as distinguished from another. Any application for approval filed by any accrediting agency shall be acted upon by the department within 180 days of the filing of the application.

          4. Completed at least 2 years of residence college work, consisting of a minimum of one-half the work acceptable for a bachelor's degree granted on the basis of a 4-year period of study, in a college or university accredited by an accrediting agency recognized and approved by the U.S. Department of Education. However, each applicant who has matriculated after July 1, 1990, in a chiropractic college shall have been granted a bachelor's degree by a college or university accredited by an accrediting agency recognized and approved by the Department of Education.

       2. For those applicants who have matriculated prior to July 1, 1996, in a chiropractic college, the board shall waive the provisions of paragraph (1)(c) if the applicant is a graduate of a chiropractic college which has been denied accreditation or approval on the grounds that its curriculum does not include all of, or is deficient in, the subjects necessary for the completion of the certification examinations or is a graduate of a chiropractic college where such subjects are not taught or offered if the college is accredited by or has status with an accrediting agency which is recognized and approved by the U.S. Department of Education.

       3. An applicant for licensure examination may elect not to take certification examinations which address phlebotomizing, physiotherapy, acupuncture, or administration of proprietary drugs. The department shall, in addition to the licensing exam, offer examinations for certification to phlebotomize, use physiotherapy or acupuncture, or administer proprietary drugs. An applicant may elect to take one or more of the certification examinations at the time of taking the licensure examination. Passage of one or more of the certification examinations shall not grant any applicant the right to practice chiropractic absent the passage of the licensing examination.

       Chapter 88-276, laws of Florida (1988), added (e) and (f) to Section 460.406(1):

       
       

       1. Completed a 3-month training program in this state of not less than 300 hours with a chiropractic physician licensed in this state. The chiropractic physician candidate may perform all services offered by the licensed chiropractic physician but must be under the supervision of the licensed chiropractic physician.

       2. Successfully completed the National Board of Chiropractic Examiners certification examination in parts I and II and clinical competency, with a score approved by the board, within 20 years immediately preceding application to the department for licensure.

       
       

   21. In addition to the statutory requirements set out in Section 460.406, Florida Statutes, Florida sets out licensure requirements in the Florida Administrative Code. At the time of the Petitioner's April, 1987, application,

       1. Rule 21D-11.003 provided:

          
          

          21D-11.003 Licensure Examination.

          1. The Board requires the examination developed and administered by the National Board of Chiropractic Examiners (hereinafter NBCE), which consists of the written examination and the Written Clinical Competency Examination.

          2. A scaled score of 75 shall be

             necessary on each section of both Part I and Part II of the National Board written examination and a scaled score of 75 shall be necessary on the Written Clinical Competency Examination. These examinations shall be successfully completed within 10 years immediately preceding application to the department for licensure.

          3. In addition to the examination in subsection (2), the Board requires the examination developed and administered by the Department of Professional Regulation, which measures an applicant's knowledge of Chapter 460, Florida Statutes, and the rules promulgated thereunder. A score of 75% shall be necessary to achieve a passing score on this part of the examination.

          4. Also, in addition to the above, the Board requires a practical examination developed by the Department of Professional Regulation, which measures competency in the following subject areas:

             1. X-ray interpretation of chiropractic and pathology films.

             2. Technique with special emphasis as taught at the candidate's particular college. Notwithstanding the special emphasis taught

                at the candidate's particular college, technique will encompass the whole body.

             3. Physical diagnosis, which may include the following: case history, chiropractic examination, general physical examination, orthopedic examination, neurological examination, X-ray technique, X-ray diagnosis, nutrition, differential diagnosis, clinical judgment.

          5. A score of 75% on each area in subsection (4) shall be necessary to achieve a passing score on the practical portion of the examination outlined in subsection (4). The taking of the subject areas of the practical examination may not be fragmented as all the subject areas of the practical examination must be taken and passed at the same examination.

          6. An applicant who is a diplomate of the American Board of Chiropractic Roentgenology shall not be required to take the portion of the practical examination measuring X-ray interpretation of chiropractic and pathology films. An applicant who is a diplomate of the American Board of Chiropractic

       Orthopedics shall not be requested to take the portion of the practical examination

       measuring orthopedic diagnosis. 2/

       
       

   22. The Florida Board of Chiropractic denied the Petitioner's April, 1987, application because of its understanding that Pennsylvania does not require candidates for licensure to re-take the entire examination if the applicant fails any portion of the examination. The Petitioner attempted to prove that the Florida Board's decision was based on a misapprehension of the facts. The Petitioner, as an applicant for licensure, carries the burden of proof to establish his eligibility for licensure. Balino v. Department of Health and Rehabilitative Service, 348 So.2d 349 (Fla. 1st DCA 1977). See also F.A.C. Rule 28-6.008. In light of the clear language of the Pennsylvania statute, and the ambiguous evidence presented at the hearing, it was found, and must be concluded, that the Petitioner did not prove that Pennsylvania did not, at the time of the Petitioner's April, 1987, application, require applicants for licensure to re-take the entire examination if the applicant failed any portion of the examination.

       
       

   23. The Florida Board of Chiropractic denied the Petitioner's June, 1989, application because of its understanding that the Pennsylvania licensure examination does not cover physical diagnosis and x-ray interpretation of chiropractic and pathology films. Again, it was found, and must be concluded, that the Petitioner did not meet his burden of proving that Pennsylvania tests on physical diagnosis and x-ray interpretation of chiropractic and pathology films.

       
       

   24. The, ultimate issue, as previously stated, is neither whether Pennsylvania requires its candidates to re-take the entire examination if the applicant fails a portion of it, nor whether Pennsylvania tests on physical diagnosis and x-ray interpretation of chiropractic and pathology films, but is whether "the requirements for licensure in [Pennsylvania] are substantially

       similar to, equivalent to, or more stringent than the current requirements of this chapter [460]." On the ultimate issue, not only are Pennsylvania's statutory requirements relevant, but the manner in which Pennsylvania implements its statutes also is relevant.

       
       

   25. Again, in light of the clear language of the Pennsylvania statute, and the ambiguous evidence presented on the manner in which Pennsylvania implements its statutes, it was found, and must be concluded, that the Petitioner did not prove that "the requirements for licensure in [Pennsylvania] are substantially similar to, equivalent to, or more stringent than the current requirements of this chapter [460]."

       
       

   26. Florida tests on the ability of a chiropractor to make physical diagnoses and to interpret both chiropractic and pathology x-ray films. Implicitly, the State of Florida tells its citizens that they can expect Florida licensed chiropractors to be competent in the performance of these services in conjunction with other chiropractic services. It would be a substantial difference between Florida's and Pennsylvania's requirements if Pennsylvania did not test the ability of its licensed chiropractors to make physical diagnoses or to interpret chiropractic and pathology x-ray films.

       
       

   27. It also would be a substantial difference between Pennsylvania's requirements and Florida's requirements if Pennsylvania did not require a passing grade of 75% on all three parts of its licensure examination. If, as its statute provides, Pennsylvania's licenses applicants who are able to average 75% on the oral, practical and written (national board) parts of the examination, it could license applicants who score as low as 25% on one part of the examination. 3/

       
       

   28. In light of the above Findings of Fact and Conclusions of Law, the Florida licensure standards applied to the Petitioner are not violative of Section 455.201(3) Florida Statutes (1987).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Chiropractic enter a final order denying the applications of the Petitioner, Norman R. Wiedow, D. C., for licensure by endorsement.

DONE and RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1989.

ENDNOTES

1/ By enacting Chapter 89-162, Laws of Florida (1989), the Legislature repealed Section 460.4065, eliminating licensure by endorsement, effective July 1, 1989.

2/ The parties stipulated at final hearing that this version of the rule should be used for comparing Florida's requirements to Pennsylvania's requirements.

3/ In this case, the parties stipulated that the Petitioner has taken and successfully completed parts I and II of the National Board written examination, but the evidence did not prove what the Petitioner scored on the other parts of the Pennsylvania examination.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0501

To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact:

1. Petitioner's Proposed Findings of Fact

   
   

   1.-15. Accepted (as the Joint Stipulation of Facts) and incorporated to the extent necessary and relevant.

   16.-17. Accepted but subordinate to facts not proven by a preponderance of the evidence.

   1. Rejected as not proven by a preponderance of the evidence.

   2. Rejected as not proven by a preponderance of the evidence. In addition, not only are the statutory requirements in Pennsylvania relevant on this ultimate fact issue, but the manner in which Pennsylvania implements its statutory requirements also is relevant.

   3. See 18 and 19, above.

   21.-23. Rejected as not proven by a preponderance of the evidence. 24.-25. Rejected as not proven by a preponderance of the evidence.

   
   

2. Respondent's Proposed Findings of Fact.

1.-14. Accepted (as the Joint Stipulation of Facts) and incorporated to the extent necessary and relevant.

15.-18. Accepted. Subordinate to facts found.

COPIES FURNISHED:

Edward J. Richardson, Esquire Richard T. Melendi, Esquire Woodlief, Rush, Smith & Richardson

101 East Kennedy Boulevard, Suite 3140 Tampa, Florida 33602

Allen R. Grossman, Esquire Theresa M. Bender, Esquire Assistant Attorneys General Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050

Patricia Guilford, Executive Director Florida State Board of Chiropractic Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0729

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 89-000501

Orders for Case No: 89-000501