STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHONDA L. WICKS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1912

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on September 5, 1989, before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard M. Hanchett, Esquire

Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A.

2700 Barnett Plaza Post Office Box 1102 Tampa, Florida 33601

For Respondent: Laura P. Gaffney, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue for consideration herein was whether Petitioner was properly graded for her performance of the Procedure in the Binocular Indirect Ophthalmoscopic testing on the Florida Optometry Examination conducted in Miami, Florida, on September 16 - 18, 1988.

PRELIMINARY STATEMENT

On November 17, 1988, Petitioner, Rhonda L. Wicks, (nee Plotkin), was advised that she had failed the optometry examination given on September 16 - 18, 1988 at the Miami Examination Center in that she failed to receive a passing grade on the clinical portion thereof, having been awarded a score of 71.5 points out of a possible 100. She protested the scoring and thereafter was awarded an additional 2 points on the clinical portion which raised her score to

73.5 points on that section. She was awarded an additional 1.5 points on the pharmacy/ocular portion of the exam, which raised her grade on that part to 80. Thereafter, on March 29, 1989, she requested a formal hearing and on April 6,

1989, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. On April 20, 1989, the undersigned set the case for hearing on May 17, 1989 in Tampa, Florida. However, several requests for continuance filed by the Petitioner were granted, and on August 11, 1989, the undersigned set the matter for hearing on September 5, 1989, at which time it was held as scheduled.

At the hearing, Petitioner testified in her own behalf and presented the testimony of Gregory M. Smith, an individual who served as a patient for one of the examinees, (not Petitioner), at the 1988 optometry examination; and Dr.

James J. Murtaugh, an opthamologist and expert in the field of ophthalmology. Petitioner also introduced Petitioner's Composite Exhibit 1. Respondent presented the testimony of Dr. Bryan P. Den Beste, a practicing optometrist and expert in the field of optometry; and Dr. Unice D. Loewe, examination development specialist for the Department of Professional Regulation, (Department).

A transcript of the proceedings was provided and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues contained herein, Respondent, Board of Optometry, (Board), was the state agency in Florida responsible for the licensing of optometrists in this state.

   
   

2. Petitioner, Rhonda L. Wicks, graduated from the Southern California College of Optometry in 1985. She was licensed as a registered optometrist in California in 1985 and was thereafter commissioned in the United States Air Force in the grade of Captain. She was assigned as an optometrist at the MacDill Air Force Base Hospital in Tampa immediately thereafter, and in 1987, was made the Chief of the optometry service at that hospital, a position she still holds. In that capacity, she supervises several other optometrists and, in addition, sees approximately 20 patients per day for a total of over 14,000 patients since assuming that position. Approximately 10% of these involve the administration of the binocular indirect ophthalmoscopic, (BIO), procedure. In addition to passing the licensure examination in California, while still in school she passed the IAB, an internationally recognized certification examination, and, in addition, passed her national boards.

   
   

3. Dr. Wicks took the 1988 Florida optometry examination given on September 16 - 18, 1988 at the Baskin-Palmer Eye Institute in Miami, Florida. When graded, she was found to have passed all portions of the examination except the clinical portion for which, on protest, she received an additional 2.5 points which raised her score to 73.5 out of a possible 100. The passing grade in this portion of the exam is 80. Primarily, her difficulties were in the area of the BIO procedure, worth 15 points, for which she was awarded only 2.5 points. She also experienced difficulty on the retinoscopy section for which she received 0 out of 8 possible points, but does not contest her score on that portion. She contests only the evaluation and grading of the BIO procedure.

   
   

4. Dr. Wicks was graded by two examiners on the BIO procedure, each of whom gave her a "yes" or "no" grade on each of three sections. One examiner gave her three "no's" for a 0 score. The other examiner gave her two "no's" and a "yes". As a result, she was awarded one half credit or 2.5 points for the "yes" score given her by one examiner on one third of the procedure.

5. In preparing for the written portions of the examination, she studied the materials furnished by the Department. She also considers her taking of the IAB as preparation for this examination. As for the clinical section, she felt comfortable using the practice she has carried on for three years as appropriate preparation except for 2 procedures for which she sought and received help from two ophthalmologists on staff at the MacDill Hospital.

   
   

6. Prior to taking the examination, she read that portion of the study guide dealing with patient criteria, and was also familiar with that portion dealing with requirements of the BIO process. To her recollection, the study guide did not mention the required position of the patient during the accomplishment of the procedures but merely outlined what the candidate would be required to demonstrate. Examination of the study guide confirms Petitioner's understanding. The Department relies on that portion of the guide found on page

   7 thereof which refers to the criteria for the patient supplied by the candidate and indicates that the patient must be willing to undergo a dilation procedure in the reclined position. The Board contends this indicates "advance notice" of the requirement that the BIO procedure be accomplished in the reclined position. This does not necessarily follow, however.

   
   

7. The morning of the examination, one of the examiners briefed the candidates on the layout of the room in which the procedures would be done and the conditions under which they would be accomplished. It was at this time that Petitioner got her first notification that the BIO procedure would be done with the patient in the reclined position. It was also at this time, during the briefing, that the candidates were advised that they were not to be permitted to move the chair in which the patient was placed. At this point another candidate, who is, as is Petitioner, short of stature, asked if the candidate could sit the patient up in the chair and this candidate was advised that she could not.

   
   

8. Under these conditions Petitioner attempted to perform the BIO procedure. When she found she could not do it because she was not tall enough, she notified her examiners of the problem and was told by one to "do the best you can." Her complaint of inability to accomplish the procedure because of the physical problem of her height was reiterated 3 times, and on each occasion, she received the same response.

   
   

9. In the BIO procedure, the doctor examines the patient's eye through a lens in an attempt to get a view of the patient's retina. Petitioner contends that in order to properly and accurately accomplish the procedure, the doctor has to be 23 inches away from the patient's eye. This 23 inches is made up of the following segments: the distance between the instrument lens and the patient's eye must be approximately 2 inches; the lens in the instrument has a thickness of 1 inch; and the examiner should be approximately 20 inches away from the lens. Petitioner demonstrated through a diagram that the chair in which her patient was reclined placed the back of his head 30 inches from the floor. Added to that is the average 7 inch thickness of a human head from the back to the front of the eyeball. When that 37 inches is added to the 23 inches described, (patient's eye to examiner's eye), a total of 60 inches, (5 feet), is shown. To accomplish the procedure, the candidate must bend over so that the plane of his or her face is parallel to the floor in order to allow the candidate to look, with the instrument used, down through the lens into the patient's eye. According to Petitioner, when she places her head in the appropriate position to look down through the instrument, into her patient's eye, her eye is 53 inches from the floor. This is 7 inches below where it

   should be in order to properly accomplish the procedure with the patient reclined on the chair as it existed the day of this examination. Petitioner is

   62 inches tall when standing straight, and 53 inches is insufficient to allow her to properly accomplish the procedure. She was not allowed either to move the chair or do the procedure with the patient sitting up.

   
   

10. The day of the examination, Petitioner tried to accomplish the procedure by standing on her toes, by leaning back, and by taking other measures in an attempt to give her an appropriate view of the patient's eye. Nothing seemed to work. It was at this time she advised the two examiners observing her that she was physically unable to accomplish the procedure due to the height situation and was told, "do the best you can."

    
    

11. Candidates are advised, prior to the examination, that if they experience difficulty of any nature during the examination, they are to bring it to the immediate attention of the examiner, and if that does not result in correction of the problem, to fill out and submit a comment card at the end of the examination whereon the candidate outlines the nature of the problem experienced. In this case, Petitioner did not fill in the comment card because she did not think it applied to her situation. She was of the opinion the card was to be filled out only when equipment did not work or the examination, for some other reason that could be corrected, was not appropriate. Here, the equipment worked as it should and the test was appropriate. In addition, the examiners also did what they were supposed to do.

    
    

12. Gregory M. Smith served as a patient for Dr. DeFrank at the same examination taken by the Petitioner. During the course of Dr. DeFrank's testing, she performed the BIO examination on him just as Petitioner attempted to do with her patient. However, Dr. DeFrank, also a short woman, was allowed to have Mr. Smith sit up for her performance of the procedure and as a result, was able to accomplish it properly. Mr. Smith had been examined by the examiners prior to Dr. DeFrank's performance of the procedure, and one of the examiners performed the BIO procedure on him while he was in a reclined positions. However, before Dr. DeFrank entered the examination room with the other examiner, Smith was returned to the upright position and Dr. DeFrank did her procedure with him in that position.

    
    

13. Dr. James J. Murtagh, an ophthalmologist and Chief of the Ophthalmology service at the MacDill hospital, and Petitioner's supervisor, has observed her in the performance of her duties for a period of two years. He is satisfied she is fully competent to do the procedure in question and, in fact, does it on a daily basis.

    
    

14. In his expert opinion, there is no requirement that the BIO be accomplished with the patient in a reclined position. In fact, he feels it is best that the procedure be accomplished with the patient in a position most comfortable and convenient to both the patient and the doctor. The position of the patient, reclined or erect, has no bearing on the doctor's ability to do the procedure properly from an optometric or ophthalmological standpoint. The purpose of the BIO procedure is to examine the back side of the retina. It is necessary to extend the view out to the sides and, admittedly, this can best be done with the patient reclined. He is satisfied, however, that the major portion of the back of the eye, that portion to be observed through this procedure, can be seen easily in either the reclined or the upright position.

    
    

15. Dr. Den Beste, Respondent's expert, is of the opinion that because of the nature of the area sought to be examined, it is best that the patient be

    reclined so that the doctor can, without discomfort, easily move to examine all portions of the retina from the top to the bottom and from side to side. Which procedure is better, however, is of little consequence here since the issue is not which procedure is better but whether the procedure legitimately can be accomplished in an upright position. In this regard, Dr. Murtagh's opinion that it can be is not necessarily inconsistent with Dr. Den Beste's opinion that it is better done in a reclining position.

    
    

16. In its answers to Petitioner's Request For Admissions, the Respondent admitted that the BIO procedure can be accomplished on a patient seated in an upright position. The statute does not require that the supine position be utilized for an examination but the Board requires it in its examination because: (1) it is felt the supine position is better for examination purposes, and (2) it is easier for the examiners to observe the candidate's performance of the procedure. On the other hand, a representative of the manufacturer of the instrument utilized by the optometrist in performing the BIO procedure indicated that the instrument is best used in an upright position. Nonetheless, Dr. Den Beste disagrees with this when the instrument is to be used in a qualification examination situation.

    
    

17. Under the physical conditions confronted by the Petitioner at the examination site, however, Dr. Murtagh is convinced it would be impossible for her to have accomplished the procedure with the patient reclined.

    
    

18. Both Dr. Den Beste and Dr. Loewe, the Department's examination specialist, indicate that when Petitioner experienced her difficulty, she should have immediately pointed out her problem and called for help. They contend that Petitioner failed to do this. The evidence clearly shows, however, that after attempting the procedure, Petitioner, on at least three occasions, advised her examiners she was unable to accomplish the procedure because of the height and distance constraints, and was advised to do the best she could. The purpose of the comment card is to afford the examiners the opportunity to look into a problem situation, take corrective action on the spot if appropriate and possible, and to take future corrective action to prevent a recurrence of the problem at some later time. If the problem complained of is merely related to candidate technique, the examiners can do nothing about it. In the instant case, however, both Den Beste and Loewe feel the Petitioner should have filled out the form when she experienced the difficulty now reported and had she done so, something might have been done at that time. Both Den Beste and Loewe, however, indicate that to the best of their knowledge, the issue of the distance, as experienced by Petitioner here, has never been raised by any examinee in the past.

    
    

19. At the hearing, Dr. Den Beste, while denying any prior knowledge of Petitioner's inability to perform the procedure because of her short stature, indicated that if someone did claim the procedure could not be accomplished because he or she was too short, there were some options open which included (1) lowering the chair, (2) adjusting the headset, or (3) pulling the patient's head into a different position so that the procedure could be accomplished. To now state that adjustments to the chair would have been acceptable provides no benefit to Petitioner here who, the evidence does not controvert, was told at the examination she was not allowed to adjust the chair at any time.

    
    

20. According to Dr. Loewe, the test as it is configured is not designed to trick candidates. Tests are designed with the hope of fairly testing the skills of all candidates. If it appears there is a problem area, then test officials try to correct it or warn of it in the study guide.

21. Dr. Loewe's inquiry into the examination conditions subsequent to Petitioner's examination revealed that there were several candidates who asked if it were necessary to do the BIO procedure with the patient in a supine position. She also admitted that filling out a comment card is not a prerequisite to filing a formal challenge to the grading or scoring. Dr. Loewe further indicated that if a legitimate reason existed to allow a candidate to perform the BIO procedure on a patient seated in an upright position because of some physical handicap, such as the candidate being confined to a wheel chair, they would make arrangements to accommodate the candidate. There appears to be little difference to be shown, from a practical standpoint, between someone who cannot examine a patient in a supine position because of their confinement to a wheel chair and one who cannot perform the examination appropriately because of his or her physical shortness and the resultant inability to get in a proper position.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

23. Under the provisions of Section 463.006(1), Florida Statutes:

    
    

    Any person desiring to be a licensed practitioner [of optometry in Florida]

    ... shall apply to the department to take the licensure examination.

    At subsection (2), the statute provides:

    The examination shall consist of appropriate subjects, including applicable state laws and rules; however, the board may, by rule, substitute a national examination as part or all of the examination. The board may, by rule, offer a practical examination in addition to the written examination.

    
    

24. In the instant case, the Board administered a written examination to the Petitioner herein, which she passed. She did not pass the practical (clinical) examination, however, achieving a score, as corrected, of 73.5 out of a possible 100.

    
    

25. Petitioner contests the score awarded her in the BIO procedure wherein she was given 2.5 points out of a possible 15 points. She contends she was not able to perform the procedure not because of a lack of skill or knowledge but because of physical limitations due to her size and the decision made not to allow her to move the chair her patient was in.

    
    

26. The Board defends its award here on the basis that the Petitioner failed to avail herself of the opportunity to challenge the exam conditions at the scene and to file a comment card outlining her difficulties at the close of the examination.

    
    

27. The evidence of record, uncontroverted by Respondent, clearly shows that when Petitioner found she was unable to accomplish the procedure with her patient in a supine position, she immediately brought this to the attention of

    the examiners and was told to do the best she could. Further, she failed to submit a comment card at the end of the examination because she felt it was not appropriate in this case.

    
    

28. Though the examiners had, at the question period prior to the clinical examination, advised a questioner that the chairs could not be moved, and that the BIO had to be done with a patient in a supine position, there is unrefuted evidence that another diminutive candidate was allowed to do her procedure with her patient in an upright position. Even if there were no inconsistency in application as appears here, there was no showing of a bona fide requirement for the supine position and there is evidence that either position is accepted in practice. What is more, the manufacturer of the device used during the procedure apparently recommends its use with the patient in an upright position. Respondent's claim that the study guide indicates the procedure will be accomplished in a supine position is not supported by the evidence. Though the guide comment may be so interpreted, it is also capable of alternative interpretation.

    
    

29. The law is well settled that an examination precedent to licensure must be fairly and uniformly administered in accordance with lawful authority and the agency's rules and regulations. Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA, 1984); Jones v. Department of Professional Regulation, 524 So.2d 700 (Fla. 1st DCA, 1988). See also State ex rel Topp v. Jacksonville Board of Electrical Examiners, 101 So.2d 583 (Fla. 1st DCA 1958). When so accomplished, the judgement of the examiners as to the proper grading will not be disturbed unless shown to be arbitrary or devoid of logic or reason.

    
    

30. Here the Petitioner has carried her burden to establish by a preponderance of the evidence that she was not fairly examined by a preponderance of the evidence. The refusal to allow her either to adjust her patient's chair, or to examine him from an upright position, while allowing Dr. DeFrank to examine her patient sitting up constitutes an inequality of condition which prejudiced Petitioner's opportunity to fairly compete with her peers. It is also arbitrary, and in light of the evidence of the propriety of doing the procedure in an upright position, both illogical and unreasonable.

    
    

31. The appropriate remedy for this situation is to allow Petitioner to be reexamined, at no additional cost, on the BIO procedure at either a special examination for that purpose or at the next regularly scheduled optometry examination. (See Alvarez, Jones, supra). No provision exists for the payment of her travel, lodging or subsistence expenses.

RECOMMENDATION

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

RECOMMENDED that Petitioner be retested on the BIO procedure only, without payment of additional fee, either at a special examination held for that purpose or at the next regularly schedule optometry examination administered by Respondent Board of Optometry.

RECOMMENDED this 23rd day of October, 1989 in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1912

The following constitutes my specific rulings pursuant to S 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner:

1. - 4. Accepted and incorporated herein.

5. - 7. Accepted and incorporated herein.

8. - 12. Accepted and incorporated herein.

13. - 18. Accepted and incorporated herein.

19. - 21. Accepted and incorporated herein.

22. - 29. Accepted and incorporated herein.

30. & 31. Accepted and incorporated herein.

32. & 33. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted.

3. Accepted and incorporated herein.

4. - 40. Accepted and incorporated herein.

41. - 46. Accepted and incorporated herein.

1. Accepted.

2. - 51. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. & 54. Accepted.

1. Accepted and incorporated herein.

2. Accepted.

3. - 59. Accepted and incorporated herein.

60. - 62. Accepted.

63. & 64. Accepted and incorporated herein.

65. - 67. Accepted.

68. - 70. Accepted and incorporated herein.

For the Respondent:

1. & 2. Accepted and incorporated herein.

1. Not a Finding of Fact but a statement of the Petitioner's position.

2. & 5. Accepted and incorporated herein.

6. & 7. Not Findings of Fact but a restatement of Petitioner's testimony. Accurate.

1. Accepted and incorporated herein.

2. Accepted as an accurate summary of the evidence on that point.

3. Accepted that the problem could have been corrected.

4. Accepted.

COPIES FURNISHED:

Richard M. Hanchett, Esquire Trenham, Simmons, Kemker, Scharf,

Barkin, Frye & O'Neill, P.A.

2700 Barnett Plaza Post Office Box 1102 Tampa, Florida 33601

Laura P. Gaffney, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

DPR

1940 North Monroe Street Tallahassee, Florida 32399-0792

Patricia Guilford Executive Director Board of Optometry

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-001912

Orders for Case No: 89-001912