STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AARON BENJAMIN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0926

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF ACUPUNCTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on March 18, 1993, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Arthur J. Springer, Esquire

215 Verne Street, Suite A Tampa, Florida 33601

For the Respondent: Vytas J. Urba, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue for consideration in this hearing was whether Petitioner should be granted additional credit for one or more of questions number 41, 44, 70, or

72 of the National Council for the Certification of Acupuncture, (NCCA), multiple choice examination administered on May 18, 1991.

PRELIMINARY MATTERS

By notice mailed July 16, 1991, the then Department of Professional Regulation advised Petitioner he had failed to achieve a passing score on the NCAA written portion of the acupuncture examination administered on May 18, 1991. In response, by letter dated December 22, 1991, Petitioner disputed the grade given him on four questions and requested formal hearing. This hearing ensued.

At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Dr. Louis

O. Celpa, a licensed acupuncturist and an expert in the field of traditional Chinese acupuncture, and introduced Respondent's Exhibit A.

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

FINDINGS OF FACT

1. Petitioner, Aaron Benjamin sat for the May 18, 1991 NCCA acupuncture certification examination administered by the Department of Professional Regulation and achieved a passing score on the clean needle technique portion of the examination. However, he received a score of 69 on the written portion of the examination for which a score of no less than 70 was passing.

   
   

2. Thereafter, Petitioner challenged four of the written questions on the exam; questions number 41, 44, 70 and 72, alleging that in each case, the question was worded in such a manner as to allow for more than one correct response and that his response, different from the accepted response, was also correct. This allegation was made notwithstanding the written examination instruction that there was "one and only one correct choice for each question."

   
   

3. In his challenge, Petitioner also asserted that the examination instructions provided by the NCCA did not limit the textbooks which might be used for preparation for the examination. He claimed that many of these texts encompassed different philosophies of traditional Chinese acupuncture. By the same token, he alleged, the NCCA also did not specify which school of acupuncture should be referenced when answering the challenged questions. There are numerous different acupuncture texts available for reference which are written through different schools of acupuncture and which represent the differing philosophies of acupuncture practitioners. Utilization of differing schools and differing philosophies could affect an examinee's answer choice.

   
   

4. Petitioner also asserted as a defect in the examination process the fact that he received his copy of the examination preparation booklet only two weeks prior to the examination rather than the 30 days which should have been provided. He raised these complaints to officials of both the Board of Acupuncture and the NCCA without success.

   
   

5. Question 41 in issue reads:

   
   

   If a patient comes to you with a swollen puffy face and complains of scanty urination, which of the Zang-Fu would you first suspect to be disordered?

   
   

   1. Lung

   2. Kidney

   3. Spleen

   4. Urinary Bladder

      
      

6. Petitioner answered this question with "3 - Spleen" while the Department's answer was "1 - Lung." He claims the question does not specify whether the diagnosis of the patient's condition should be from the beginning of the condition or at the time of examination. He asserts, however, that the spleen is an organ with which this condition may be associated since the accumulation of fluid in the interiors causing edema (swelling) is a syndrome of the spleen and incontinence of the urine also relate to that organ.

7. On the other hand, as indicated by the Department's expert, the lung dominates the vital functions of the entire body and greatly influences all its functional activities. It controls and disperses all fluid in the system. The accumulation of water in a patient with a puffy face and scanty urination, therefore, comes from the lung which is responsible for dispersion of water which might, originate from the spleen. Consequently, "Lung" is the correct answer.

   
   

8. Question 44 in issue reads:

   
   

   Bouts of dizziness that continue when a patient lies down are attributed to:

   
   

   1. deficiency

   2. excess

   3. heat

   4. cold

      
      

9. Petitioner answered this question with "1 - deficiency", claiming that either excess or deficiency could result in a patient remaining dizzy after lying down. He asserts the wording on the examination question does not provide sufficient information regarding the syndrome to allow the examinee to differentiate whether an excess or deficiency syndrome resulted in the patient's condition. He claims that if an individual suffered from a deficiency syndrome, and the body energy did not stabilize after the patient reclined, the dizziness would continue.

   
   

10. The Department's expert notes that the correct answer is "2 - excess" because in a deficiency syndrome, the vital energy, when one lays down, will come back. With an excess, however, even if one lays down, the excess will not go away. Dr. Celpa admits, however, that in western medicine, Petitioner's answer would be correct. However, in traditional Chinese medicine, which deals in philosophy (theory), one has to accept the specifics given by the Chinese. The correct answer, for the purposes of this examination is, therefore, "2 - excess."

    
    

11. Question 70 in issue reads:

    
    

    A tight and forceful pulse could indicate:

    
    

    1. Damp of the Spleen and Stomach.

    2. hyperactivity of the Yang of the Heart.

    3. penetration of Cold into Liver Channel.

    4. Yin deficiency of the Heart.

    
    

12. Petitioner answered "1 - Damp of the Spleen and Stomach, while the Department's correct answer was "3 - penetration of Cold into the Liver Channel." He notes that cold is indicated by a slow pulse and penetration of cold into the liver channel is indicated by a deep, wiry and slow pulse. A forceful pulse, he claims, can sometimes mean an accumulation of dampness in the spleen and stomach not allowing the body to metabolize food for distribution to other organs. If one has damp one has an accumulation. Petitioner answered as he did because of the study guide definitions. The study guide directs the examinees to use its definitions and there was no word for forceful included therein.

13. Dr. Celpa, on the other hand, contends "a penetration of cold in the lower channel" is the correct answer as asserted by the NCCA. Most written authorities on the subject indicate that a tight and forceful pulse relates to the liver. Included in these authorities are The Web That has No Weaver; Fundamentals of Chinese Medicine; Acumoxa; and Pulse Diagnosis. Therefore, he concludes that cold in the liver is the closest answer. He asserts, contrary to claims of the Petitioner, that the definition page contained in the examination packet contains all one needs to take the examination. The packet is put together by the Board of Acupuncture and directs definitions outlined in The Web That has No Weaver be used. This gives little room for error. Nonetheless, he admits this question should have more information available in it to assist the examinee and is a poor question.

    
    

14. Question 72 in issue reads:

    
    

    Which of the following will cause a foul or offensive smell of the discharge or excretion?

    
    

    1. Damp disorder combined with Cold.

    2. Damp disorder without Cold.

    3. Heat disorder of the Xu (deficiency) type.

    4. Heat disorder of the Shi (excess) type.

       
       

15. Petitioner's answer to this question was "1 - Damp disorder combined with Cold", and the correct answer, as indicated by the Respondent was "4 - Heat disorder of the Shi (excess) type." Petitioner's answer was based on the statement in Traditional Chinese Medicine to the effect that where there is damp there is odor. There is no reference therein to damp heat, so, looking at the remainder of the authoritative statement, he concluded that dampness is associated with odor.

    
    

16. On the other hand, Dr. Celpa indicated Petitioner's answer is wrong because damp is not necessary for odor. The heat disorder is the primary one giving an offensive odor. The Shi type adds to it. While damp could have a foul odor, the heat (Shi (excess)) is the only one which gives the discharge. All of the possible answers show something wrong, but the association of heat and excess best meets the test. Consequently, Petitioner's answer could not be correct.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

18. Petitioner has the burden of proof in this case which requires him to establish, by a preponderance of the evidence, that his answers to the questions in issue should have been graded as correct and he should have been given credit therefor.

    
    

19. The manner of administration of licensure examinations and the criteria for grading such examinations are outlined in Chapter 21, F.A.C. In addition, the Florida Board of Acupuncture requires that an application pass, with a minimum grade of 70, the examination provided by NCCA, which organization has the authority not only to develop the examination but also to grade it according to national standards.

20. In the case of each of the disputed questions, Petitioner gave his own opinion as to why his answer as to that question was correct or as correct as that accepted by the examiners as correct. In each case he referred to quotations from one of the printed authorities referenced above in support of his position, but it did not appear those authorities supported him. On the other hand, the Board presented the testimony of Dr. Celpa, a certified and licensed acupuncturist with many years experience in the field and an individual recognized by the Petitioner as an expert in the field of traditional Chinese acupuncture, who in the case of each disputed question, demonstrated the incorrectness of Petitioner's answer. In light of this evidence, it cannot reasonably be said that Petitioner sufficiently established his answers to the disputed questions were correct and deserving of additional credit. Petitioner also failed to establish that his examination was arbitrarily or capriciously graded, (State of Florida v. J.M. Pepper, 155 So.2d 383 (Fla. 1stDCA 1963)).

    
    

21. Petitioner also asserted, but did not sufficiently establish, that the Department's instructions to examination candidates was either substantially insufficient or misleading, notwithstanding Dr. Celpa's testimony that question

70 was a poor question. The criteria for grading the candidates' answers to the examination questions here legitimately were established by the NCCA. The fact that Petitioner's answers might have had some element of worth to them does not overcome the fact that they were not consistent with the acceptable answers as defined by the NCCA. Petitioner did not establish to the degree required that his answers were consistent with any authority cited as acceptable by the appropriate grading agency and he cannot properly be awarded any additional credit for them.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Board of Acupuncture denying Petitioner's request for additional credit.

RECOMMENDED this 28th day of September, 1993, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 28th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-926

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. & 2. Accepted and incorporated herein.

   1. Accepted as an accurate description of the thrust of Petitioner's complaint.

   2. Accepted.

   3. Accepted and incorporated herein.

   4. Accepted as Petitioner's justification for his answer but rejected as appropriate authority.

   5. Accepted as an accurate description of Petitioner's answer and the correct answer, and as Petitioner's justification for his answer, but rejected as appropriate authority.

   6. Accepted and incorporated herein.

   7. Accepted as an accurate description of Petitioner's justification for his answer and as a restatement of Respondent's position, but rejected as appropriate authority.

   8. Accepted and incorporated herein

   9. Accepted as Petitioner's justification for his answer but rejected as appropriate authority.

FOR THE RESPONDENT:

1. - 11. Accepted and incorporated herein.

COPIES FURNISHED:

Arthur J. Springer, Esquire

215 Verne Street, Suite A Tampa, Florida 33601

Vytas J. Urba, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay

Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt Executive Director Board of Acupuncture

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-000926

Orders for Case No: 92-000926