STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOIS BUXBAUM, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3398

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

CHIROPRACTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on November 2, 1990, in Tallahassee, Florida.

APPEARANCES

FOR PETITIONER: Lois Buxbaum, pro se

23 Jones Street, #1 New York, New York

FOR RESPONDENT: Vytas J. Urba, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether the Respondent should grant the Petitioner a passing grade and, therefore, a license to practice chiropractic in the State of Florida on the basis of the licensing examination taken on November 9, 1989.

PRELIMINARY STATEMENT

The Petitioner passed written portions of the examination. On the practical part of the examination, the Petitioner received a grade of 73 on the physical diagnosis portion of the examination and a grade of 71.2 on the technique portions. In March of 1990, the Petitioner viewed the videotape and submitted a written challenge, as a result of which her grade on the physical diagnosis portion was raised to 75 (passing). Thereafter, the Petitioner timely requested an administrative hearing. The following exhibits were introduced into evidence by the Petitioner:

1. Grade sheets for physical diagnosis examination;

2. Examiner manual;

3. Affidavit from Dr. Sid Williams dated September 10, 1990;

4. Depositions from Dr. Gary Gordon and Dr. Bill Willis; and

5. Letter and Life College Bulletin (1978-1980) from Dr. Ronald Hash.

The Petitioner presented Dr. Richard Carr as an expert witness and herself as a witness. The following exhibits were introduced into evidence by the Respondent:

1. Grade sheets for the technique examination;

2. Curricula vitae for Dr. Stephen Ordet and David Bolton; and

3. Letter from George John, Bureau of Examination Services dated April 19, 1990.

The Respondent presented David Bolton as an expert witness and Dr. Steve Ordet as an expert witness (by telephone). Additionally, the Hearing Officer took notice of Florida Administrative Code, Board of Chiropractic, Rules, Chapter 21D, and Florida Statutes, Chapter 460, Chiropractic.

A transcript of the hearing was provided to counsel for Respondent on November 26, 1990 and was filed with the Division of Administrative Hearings on the same date. The Petitioner filed proposed findings of fact on December 14, 1990, and the Respondent filed proposed findings of fact on December 21, 1990. These were read and considered. The Appendix, attached hereto and incorporated by reference herein, states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner took the chiropractic licensure practical examination administered in November of 1989 and received a score of 71.2%. The minimum passing score was 75%. The Petitioner needs 1.5 additional raw score points in order to obtain a minimal passing grade.

   
   

2. The Petitioner challenged portions of the practical portion of the chiropractic examination. The practical examination includes the areas of x-ray technique, chiropractic technique, and physical diagnosis.

   
   

3. Stephen Ordet, D.C., testified on behalf of the Respondent. He was received as an expert in chiropractic medicine (TR, page 117, line 19). He testified that he has been an examiner for the Florida chiropractic practical examination since approximately 1980 (TR, page 102, line 18).

   
   

4. The practical portion of the chiropractic examination was administered to the Petitioner by two of several doctors of chiropractic, who were examiners at this examination. The practical examination questions asked the Petitioner were developed by the two examining doctors. The various areas which can be included on the technique examination include cervical, lumbar, thoracic, occipital, pelvic, rib, soft tissue, and extremities.

   
   

5. The examiners' questions to the Petitioner did not address the lumbar, occipital or rib areas. Examiner No. 12 gave the Petitioner a score of 4 on cervical, 3 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 1 on extremities. Examiner No. 13 gave the Petitioner a score of 4 on cervical, 3.5 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 2 on extremities.

6. Each portion of the examination has a possibility of 4 points. A candidate must average 3 points fob each question on the examination or a score of 75%.

   
   

7. The school which the Petitioner attended is an accredited school.

   
   

8. The Petitioner's responses to various questions from the examiners were scored by the examiners under more than one phase of the examination.

   
   

9. The Petitioner received a grade of 4 (excellent) from both examiners on the cervical portion of the examination.

   
   

10. The Petitioner's expert witness testified that the Petitioner's responses to the questions on the pelvic and thoracic were complete answers. The grades given the Petitioner by one of the examiners were 3.5 and 3, and the grades given by the other examiner were 3 and 3. The grades given are consistent with the petitioner's expert's characterization of her performance. There is no evidence that these questions or grading were arbitrary or capricious.

    
    

11. The Petitioner was given an extremities question, and she began an examination of the patient. Thereafter, she advised the examiners that her school had not taught adjustment of the extremities and had not known she would be examined in this area. Additional evidence presented at the bearing shows that extremities were not taught at the Petitioner's school when she attended based upon the school's philosophy relating to spinal adjustment.

    
    

12. The two remaining areas addressed in the practical portion of the examination were soft tissue and extremities. Grader 13 scored the Petitioner

    2.5 on soft tissue and 2 on extremities. Grader 12 scored the Petitioner 2.5 on soft tissue and 1 on extremities.

    
    

13. Dr. Ordet opined that extremity technique as a necessary part of chiropractic medicine (TR, page 100, line 11). He referred to several technique books in chiropractic to support the necessity of extremity technique. The text books included Anatomical Adjustment Techniques by Dr. Homer Beatty.

    
    

14. One of the examiners responded that they would move onto another area and gave her a new question referring back to the patient with torticollis.

    
    

15. The responses by the Petitioner regarding manipulative relief of the torticollis were not addressed by the Petitioner's witness. There is no basis for concluding that the examiners were clearly erroneous in their evaluation of the Petitioner's response.

    
    

16. The Respondent's expert witness revealed that the examination did not place special emphasis on the technique taught at the candidate's particular college.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, pursuant to Section 120.57, Florida Statutes. Section 460.406(1), Florida Statutes, provides that the Respondent shall examine each applicant certified by the Board. Section 460.406(1)(c), supra, goes on to state: "No application for a license to practice chiropractic shall be denied solely because the applicant is a graduate

    of a chiropractic college that subscribes to one philosophy of chiropractic as distinguished from another." Rule 21D-11.003, Florida Administrative Code, provides for a practical examination which measures competency in the following subject areas:

    
    

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

    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. (emphasis supplied).

    
    

18. The Respondent's expert witness revealed that the examination did not place special emphasis on the technique taught at the candidate's particular college. The examination did encompass the whole body. The Petitioner was asked to adjust the knee of the patient. The Petitioner advised the examiners that her school had not taught extremities. The Petitioner proved at the hearing that the absence of extremities in the curriculum was tied to the school's philosophy. The Petitioner has established that the examination did not emphasize the technique taught at her school and that she was asked a graded question regarding a technique not taught at her school.

    
    

19. The Respondent argues that if the Petitioner proves her case, she is only entitled to take the examination again. However, the Respondent and the Board inappropriately by rule cannot narrow the relief sought. The Petitioner's challenge is not to a certain question or questions. The Petitioner's challenge is to the process.

    
    

20. The Board's rules say that they will test technique with a special emphasis on the technique taught at the candidate's particular college, and the Board's statute says that the philosophy of a given school will not be the stole basis for denial. The Board argues that Rule 21D-11.003(1)(b), Florida Administrative Code, authorizes the Respondent to examine candidates on the whole body.

    
    

21. Although the language grants authority to examine on the whole body; this authority must be considered in the context of the limits created by the first portion of Rule 21D-11.003(1)(b), Florida Administrative Code, which states: "Technique with special emphasis as taught at the candidate's particular college..."; and Section 460.406(1), Florida Statutes, which states: "No application. shall be denied solely because the applicant is a graduate of a chiropractic college that subscribes to one philosophy of chiropractic as distinguished from another."

    
    

22. The Petitioner showed that when she attended, the technique of extremities was not taught at Life Chiropractic College because the school's philosophy was based upon the premise that chiropractic involves the location and correction of spinal subluxation. See Petitioner's Exhibit 3.

    
    

23. If the Respondent examined every candidate upon each and every aspect of all of the techniques, the inclusion of "extremities" under the "whole body" theory might have some merit. However, the facts reveal that all candidates are not examined on the aspects of all techniques. If some candidates are not examined on some techniques based upon chance and caprice, there is sufficient departure from examining on the whole body in the examining process to exclude

    an aspect of technique because it was not taught at one's school because it was not part of the school's philosophy.

    
    

24. The correct remedy is to eliminate the offending question and average the remaining portions. When the extremities grade is excluded, the Petitioner's score is the average of her scores by both examiners on cervical (4+4), thoracic (3.5+3), pelvic (3+3), and soft tissue (2.5+2.5), or 3.18, or more than 75%.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the extremities question be stricken from the techniques attempted; the Petitioner receive the average of her remaining techniques scores; and receive a passing score on the examination.

DONE AND ENTERED this 15th day of February, 1991, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 15th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3398

Petitioner's Proposed Findings of Fact

1. Adopted and renumbered.

2. Adopted and renumbered.

3. Rejected. The state of the Petitioner's health when this examination was given is conjectural.

4. The Petitioner was given added credit upon a review of her examination; however, one cannot say the examiners were unfair.

5. The testimony about the amount of time for each examination is conflicting. The Petitioner did not clearly establish this point.

6. True but irrelevant.

7. Contrary to the facts.

8. Contrary to the facts.

9. True but irrelevant.

Respondent's Proposed Findings of Fact

1. Adopted and rewritten.

2. Not a finding.

3. Not a finding.

4. Adopted and rewritten.

5. Adopted.

6. Adopted in part, rewritten in part, and rejected in part.

7. Adopted first sentence.

8. Adopted.

9. Adopted.

COPIES FURNISHED:

Ms. Patricia Guilford Executive Director Board of Chiropractic

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esq.

General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Lois Buxbaum

23 Jones Street, #19 New York, NY

Vytas J. Urba, Esq.

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF CHIROPRACTIC

LOIS BUXBAUM,

Petitioner,

vs. DOAH CASE NO: 90-3398

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF CHIROPRACTIC,

Respondent.

/

FINAL ORDER OF THE BOARD OF CHIROPRACTIC

This matter came before the Board of Chiropractic (the "Board") pursuant to Section 120.57(1)(b) 9 and 10, Florida Statutes, on April 11, 1991, in Tallahassee, Florida for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A) and exceptions, if any. Respondent, Department of Professional Regulation, was represented by Vytas Urba, Esquire.

Petitioner was not present nor represented. Neither party filed exceptions to the Recommended Order.

Upon review of the Recommended Order, the Exceptions, if any, the arguments, and the complete record in this case; being otherwise fully advised in the premises, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The Hearing Officer's findings of fact are hereby by approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the Hearing Officer's findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), and Chapter 460, Florida Statutes.

   
   

2. The Board rejected those conclusions of law that addresses philosophy of chiropractic. The issue in this cause was not the issue of the philosophy of chiropractic as distinguished from another. The facts in the record support that any candidate who takes the examination and is tested on Chapter 460, Florida Statutes and the rules adopted by the Board, should be aware that they will be tested on the whole body. Furthermore, in this case, the candidate (Petitioner) attempted to perform the question on technique, but only when she

   could not perform the technique, did she state that she was not taught the technique. If she was not taught the particular technique, she should have not attempted to perform it. The remainder of the Hearing Officer's conclusions of law set forth in the Recommended Order are hereby approved and adopted to the extent that they are not inconsistent with the Board's conclusions of law.

   
   

3. There is competent, substantial evidence to support the Conclusions of Law by the Board.

DISPOSITION

Upon a complete review of the record in this case, the Findings of Fact, Conclusions of Law, and the arguments, the Board determined that the disposition recommended by the Hearing Officer be REJECTED as inconsistent with the Conclusions of Law.

THEREFORE IT IS ORDERED THAT:

That the extremities question not be stricken from the techniques attempted; the Petitioner does not receive the average of her remaining techniques scores; and will not receive a passing score on the examination.

THIS FINAL ORDER TAKES EFFECT UPON FILING with the Clerk of the agency. ORDERED this 1st day of May, 1991.

BOARD OF CHIROPRACTIC

Stanley Kaplan, D.O. Chairperson

NOTICE OF RIGHT TO JUDICIAL REVIEW UNLESS WAIVED

Pursuant to Section 120.59, Florida Statutes, any person which is substantially affected by this Final Order, may appeal this Final Order, unless right is waived, by filing one copy of the Notice of Appeal with the Clerk of the Department of Professional Regulation, and by filing a filing fee and one copy of the Notice of Appeal with the District Court of Appeal within 30 days of the date this order is filed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Final Order was provided by U.S. Mail to Lois Buxbaum, 23 Jones Street, #19, New York, New York 10014 and by hand delivery to Vytas Urba, Esquire, Department of Professional Regulation, 1940 North Monroe Tallahassee, Florida 23299-0750, this 7th day of May, 1991.

Patricia B. Guilford Executive Director Board of Chiropractic

Docket for Case No: 90-003398

Orders for Case No: 90-003398