JENNY C. CACERES, )
vs. ) Case No. 98-1502
Respondent. )
Pursuant to notice, a Section 120.57(1) hearing was held in this case on July 31, 1998, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Jenny P. Caceres, pro se
Whether Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination should be sustained.
By letter dated March 16, 1998, Petitioner requested a Section 120.57(1) hearing on her challenge to the failing grades she received on the "physical diagnosis" and "x-ray interpretation" portions of the November 1997 chiropractic licensure examination. On March 26, 1998, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.
As noted above, the hearing was held on July 31, 1998. At the outset of the hearing, Respondent, through counsel, announced that it had determined that Petitioner should have received additional points for her responses to questions 18 and 21 on the "physical diagnosis" portion of the November 1997 licensure examination. 1/
During the evidentiary portion of the hearing, Petitioner testified in support of her challenge to the scoring of her responses to questions 12, 13, 16, 17, 18, 19, and 20 on the "physical diagnosis" portion of the licensure examination. She also offered two exhibits into evidence in support of her position. Both of Petitioner's exhibits were admitted by the undersigned. Petitioner presented no evidence concerning the "x- ray interpretation" portion of the licensure examination, thereby abandoning her challenge to the failing grade she received on this portion of the examination.
Respondent offered the testimony of Zohre Bayrayni, a psychometrician with the Department of Business and Professional Regulation, and Dr. Philip Leon, a chiropractic physician. In addition, it introduced seven exhibits, all of which were received into evidence.
At the conclusion of the evidentiary portion of the hearing, the undersigned announced, on the record, that if the parties desired to file proposed recommended orders, they had to do so within ten days from the date the transcript of the final hearing was filed with the Division. The hearing transcript was filed with the Division on October 1, 1998.
Petitioner and Respondent filed their proposed recommended orders on August 26, 1998, and October 7, 1998, respectively.
These post-hearing submittals have been carefully considered by the undersigned.
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
Petitioner took the chiropractic licensure examination administered in November of 1997.
The examination consisted of four parts: "x-ray interpretation"; "technique"; "Florida laws and rules"; and "physical diagnosis." The minimum passing score for each part was 75.
Petitioner passed the "Florida laws and rules" and
"technique" portions of the examination. She failed the "x-ray interpretation" and "physical diagnosis" portions of the examination, with scores of 63.20 and 70.50. respectively.
As noted above, Petitioner's evidentiary presentation at hearing addressed only the "physical diagnosis" portion of the November 1997 licensure examination.
On this portion of the examination, candidates demonstrated their knowledge of physical diagnosis by responding to test questions, in the presence of two examiners, either verbally or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the examiners' scores.
Prior to the administration of the "physical diagnosis" portion of the November 1997 licensure examination (PD Test), examiners were provided with written instructions (Examiners' Instructions) regarding their role in the examination process and the standards they should follow in grading candidates' performance. In addition, examiners were required to attend a pre-examination organizational meeting at which they were provided with further instructions and training designed to enhance grading standardization.
Questions 11 through 13 on the PD Test covered the subject of orthopedics.
Candidates were presented with a written case history to which they were to refer in responding to these questions, as well as to all subsequent questions on the PD Test (including those at issue in the instant case).
In question 11, candidates were asked to select (from a list) four orthopedic tests which, under the circumstances presented in the case history, were appropriate to administer to
the "patient."
As Petitioner conceded at hearing, of the four tests she selected, only three were appropriate. The fourth test she selected, Yergason's Test, was not an appropriate test to administer in view of the "patient's" case history.
In question 12, candidates were asked to demonstrate on the "patient" how they would administer the tests they selected in response to question 11.
Question 12 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting and properly demonstrating four appropriate tests; three points for selecting and properly demonstrating three appropriate tests; two points for selecting and properly demonstrating two appropriate tests; and one point for selecting and properly demonstrating one appropriate test.
Both examiners awarded Petitioner two points for her response to question 12.
Although she selected three appropriate tests, she properly demonstrated only two of these three tests. The test she did not properly demonstrate was Tinel's Sign.
The "patient's" case history suggested that ulnar nerve, not median nerve, testing needed to be done on the "patient."
There are five types of Tinel's Sign tests. One is designed to test the ulnar nerve and involves tapping on the "funny bone." Another is for testing the median nerve and
involves tapping on the wrist.
Petitioner demonstrated the type of Tinsel's Sign test used to probe the median nerve, when she should have demonstrated the type used to test the ulnar nerve.
Because she selected only three appropriate tests and demonstrated only two of these tests properly, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 12.
Question 13 required candidates to state what conditions would be suggested by positive results from the tests selected and demonstrated.
Question 13 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting four appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; three points for selecting three appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; two points for selecting two appropriate tests and correctly stating, as to each, what condition would be indicated by positive results; and one point for selecting one appropriate test and correctly stating, as to that test, what condition would be indicated by positive test results.
Both examiners awarded Petitioner two points for her response to question 13.
Petitioner did not correctly name the condition suggested by a positive Cervical Compression test, one of the three tests she correctly selected in response to question 11.
Because Petitioner selected only three appropriate tests and, with respect to one of these tests (the Cervical Compression test), failed to correctly state what condition would be indicated by positive test results, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 13.
Questions 14 through 16 on the PD Test covered the subject of range of motion.
In question 16, candidates were asked to explain the difference and significance between active range of motion and passive range of motion.
Question 16 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for answers to question 16.
Neither examiner awarded Petitioner any credit for her response to question 16.
In responding to the question, Petitioner gave an accurate explanation of the difference between active range of motion and passive range of motion (by noting that the former, unlike the latter, is performed by the patient without assistance), but she did not accurately explain the significance
of the difference, as required by the second part of the question. Petitioner incorrectly stated, in attempting to answer this part of the question, that active range of motion is characterized by ligament involvement.
Because Petitioner did not correctly answer question 16 in its entirety, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for this question.
Questions 17 through 19 on the PD Test covered the subject of neurology and focused upon muscle testing.
Question 17 required candidates to name all relevant muscles that that they would test in light of the case history with which they were presented (which reflected that the "patient" had neck pain and numbness radiating down her right arm into her ring finger and little finger).
Question 17 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for naming four relevant muscles; one and a half points for naming three relevant muscles; one point for naming two relevant muscles; and a half point for naming one relevant muscle.
Neither of the two examiners awarded Petitioner any credit for her response to question 17.
There was no connection between the muscles Petitioner
named and the nerve root that the symptoms (described in the case history) suggested was the cause of the "patient's" problems.
Inasmuch as Petitioner named no relevant muscles, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for question 17.
Question 18 required candidates to demonstrate on the "patient" how to test two muscles selected by the examiners. Petitioner was asked to test the "patient's "triceps muscle and the interossei muscles of the "patient's" hand.
The Examiners' Instructions provided that candidates should be awarded two points (full credit) for correctly demonstrating both tests and one point for correctly demonstrating one of the two tests.
One examiner awarded Petitioner two points for her demonstration in response to question 18. The other examiner did not award Petitioner any points. Accordingly, Petitioner received one point (the average of the two examiners' point awards) for her response to question 18.
Petitioner tested the interossei muscles of the "patient's" hand in a manner that is unconventional, but nonetheless acceptable. She did not test the "patient's" triceps muscle correctly, however, inasmuch as she did not, during her demonstration, do what was necessary to isolate that muscle.
Because she performed only one of the two tests
correctly, awarding Petitioner more than the one point she has already received for her response to question 18 would be inconsistent with the grading guidelines set forth in the Examiners' Instructions.
To receive credit for question 19, candidates had to explain and interpret a grade level of muscle testing selected by the examiners. (There are six such grade levels: zero through five. The examiners were instructed to select one of these six grade levels.) Petitioner was asked by the examiners to explain and interpret grade level three testing.
Question 19 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for responses to question 19.
One examiner awarded Petitioner one point for her response to question 19. The other examiner did not award Petitioner any points. Accordingly, Petitioner received a half point (the average of the two examiners' point awards) for her response to question 19.
Petitioner incorrectly stated, in response to question 19, that grade level three testing involves range of motion without gravity. Grade level three testing actually involves range of motion with gravity.
Accordingly, pursuant to the scoring guidelines set forth in the Examiners' Instructions, Petitioner should not have received any credit for her response to question 19.
Questions 20 and 21 on the PD Test covered dermatomes and sensory testing.
Question 20 required candidates to name all relevant dermatome patterns that they would test for in light of the "patient's" case history and to demonstrate one of these tests (selected by the examiners) on the "patient." Petitioner was asked to demonstrate dermatome C5 testing.
Question 20 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for correctly naming all relevant dermatome patterns and correctly demonstrating the selected test, and one point if they correctly named all relevant dermatome patterns or correctly demonstrated the selected test (but failed to do both).
One examiner awarded Petitioner two points for her response to question 20. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 20.
Petitioner correctly named all of the relevant dermatome patterns, but she incorrectly demonstrated dermatome C5 testing inasmuch as she focused upon the trapezium ridge, rather than the lateral aspect of the arm.
Accordingly, pursuant to the grading guidelines set forth in the Examiners' Instructions, Petitioner should have received one point for question 20.
Question 21 was worth two points. One examiner awarded Petitioner two points for her response to question 21. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 21. Respondent concedes that Petitioner should have received full credit (two points) for her response to question 21, and there is no evidence
indicating otherwise.
CONCLUSIONS OF LAW
Any person seeking a license to practice chiropractic in the State of Florida must take and pass the licensure examination. Sections 460.406 and 460.411, Florida Statutes.
Such licensure examination must "adequately and reliably measure an applicant's ability to practice [chiropractic.]" Section 455.574(1)(a), Florida Statutes.
The Board of Chiropractic (Board) has been statutorily empowered to "by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade." Section 455.574(1)(b), Florida Statutes.
The Board has adopted such a rule. The rule, Rule 64B2-11.003, Florida Administrative Code, provides as follows:
The Board requires the candidate to pass the practical examination developed by the Department of Health, which measures competency in the following subject areas:
X-ray interpretation of chiropractic and pathology films. The subject areas and associated approximate weights for the x-ray examination shall be as follows:
Congenital anomalies and normal skeletal variants 12-25%
Trauma 15-20%
Arthritic disorders 10-15%
Tumors and tumorlike processes 5-10% Infection 1-5%
Hematological and vascular disorders 1-5%
Nutritional, metabolic, and endocrine disorder 1-5%
Chest 1-5%
Biomechanics 5-10%
Alternative 1-5%
Technique 5-10%
Anatomy 5-10%
Technique, which may include manipulation or adjustment of any of the following anatomical areas: the occiput, cervical, thoracic, lumbar, pelvis, ribs, extremities, soft tissue, and the whole body according to the following approximate weights:
Doctor/patient position 25% Location of segment 25% Contact point 25%
Line of drive 25%
Physical diagnosis, which may include any of the following: case history, chiropractic examination, general physical examination, orthopedic examination, neurological examination, X-ray technique and diagnosis, laboratory technique and diagnosis, nutrition, differential diagnosis, and clinical judgment according to the following approximate weights:
Orthopedic and neurological 30-35% Diagnostic imaging 20-25%
Case history and physical 15-20% Laboratory 5-10%
Diagnosis 15-20%
Clinical judgment 5-10%
A score of 75% on each subject area in subsection (1) shall be necessary to achieve a passing score on the practical portion of the examination outlined in subsection (1). Upon initial examination, an applicant must take the entire practical examination. The applicant must pass at least two (2) of the three (3) subject areas of the practical examination in order to retake any failed subject area. The applicant may retake a failed subject area only twice, upon which time the applicant must retake the entire practical examination.
In addition to the examinations in subsection (1), the Board also requires the candidate to pass the examination developed and administered by the Department of Health, 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.
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.
Upon written request from an applicant who has been approved for examination, the Department shall provide a translated version of the examination for licensure into a language other than English. If no such translated examination exists, however, the Department shall require the applicant to pay the cost of the translation before employing translators to perform the task.
A candidate's performance on the practical examination must be evaluated by at least two examiners. Each examiner is required to "independently evaluate the performance of each candidate." The candidate's final score is arrived at by averaging the independent grades of the examiners. Rules 64B-
1.006 and 64B-1.008, Florida Administrative Code.
Examiners must meet the qualifications prescribed by Rule 64B2-11.007, Florida Administrative Code, which provides as follows:
In order to be eligible to act as an examiner consultant for the licensure examination, the prospective examiner must meet the following criteria:
the prospective examiner must have five years of continuous practice in the State of Florida as a licensed chiropractor;
the prospective examiner must not have had a chiropractic license or other health care license suspended, revoked, or otherwise acted against. If the prospective examiner has had prior disciplinary actions, he or she may apply to the Board for permission to act as an examiner, and shall provide all information pertinent to that determination.
the prospective examiner must not be currently under investigation by the Department, or by any state or federal agency;
effective February 28, 1996, the prospective examiner must have completed not less than 20 additional hours of post graduate training or education beyond the continuing education required for renewal of licensure during the previous biennium;
the prospective examiner must submit a current vita including a list of all post graduate education.
In order to be eligible to act as an examiner consultant for a certification examination, the prospective examiner must meet the criteria established in subsection (1), and in addition, be certified in the area to be examined.
Individuals who meet the qualifications of subsections (1) and (2) of this rule must be certified pursuant to Rule 59-1.073(5),
F.A.C. The Department shall select, from the Board's recommended list, a sufficient number of individuals to insure that there will be an adequate pool from which to draw the requisite number of examiners.
Examiners are required, by rule, to attend "a standardization session prior to grading to discuss the scoring criteria and standards." Rule 64B-11.008(1)(d), Florida Administrative Code.
Pursuant to Rule 64B-1.013, Florida Administrative Code, a candidate who fails to attain a passing score on the chiropractic licensure examination has "the right to review the examination questions, answers, papers, grades, and grading keys" in the presence of a representative of Respondent.
If the candidate believes that an error was made in the grading of the examination, the candidate may request a hearing, pursuant to Chapter 120, Florida Statutes.
Petitioner requested such a hearing in the instant case to contest the failing grade (70.5, 4.5 points below the minimum passing grade) she received on the physical diagnosis portion of the November 1997, licensure examination. Respondent granted Petitioner's request for a hearing and referred the matter to the Division for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.
At the hearing, Petitioner had the burden of establishing by a preponderance of the evidence that her failing grade was the product of arbitrary or otherwise improper or erroneous grading. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); Florida Department of Health and Rehabilitative
Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974).
She failed to meet this burden of proof.
In attempting to meet her burden, Petitioner did not present the testimony of any independent expert witness.
Instead, she relied exclusively on her own testimony, which she was free to do notwithstanding her interest in the outcome of the case. See Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609-10 (Fla. 1st DCA 1993). Respondent countered Petitioner's testimony with the expert testimony of an experienced and knowledgeable practicing chiropractic physician, Dr. Philip Leon. Given Dr. Leon's impressive credentials and qualifications, his superior knowledge and expertise, and his apparent candor and lack of bias, the undersigned has credited Dr. Leon's expert testimony (concerning the appropriateness of Petitioner's responses to questions 12, 13, 16, 17, 18, 19 and
20) over Petitioner's testimony to the contrary. While it is undisputed that Petitioner should have received two, instead of one and a half, points for her response to question 21, it appears, based upon Dr. Leon's testimony, that none of the other challenged scores (that is, averaged point awards) Petitioner received on the PD Test (for questions 12, 13, 16, 17, 18, 19, and 20) was undeservingly low. Adding just a half point (for her response to question 21) to her total score on the PD Test would still give her a failing grade (of 71) on this portion of the
licensure examination.
Because the preponderance of the evidence does not establish that Petitioner's failing grade on the PD Test was the product of arbitrary or otherwise improper or erroneous grading, Petitioner's challenge to this failing grade should be rejected.
RECOMMENDED that a Final Order be entered rejecting Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination.
DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
1/ Respondent conceded that Petitioner was entitled to full credit for her response to question 21. It, however, did not agree that Petitioner also should have received full credit for her response to question 18, although it did admit that one of
the examiners erred in giving her no credit (instead of partial credit) for her response to this question.
Jenny P. Caceres, pro se 2809 Southwest 23rd Terrace Miami, Florida 33145
Angela T. Hall, Agency Clerk Department of Health
Eric G. Walker, Executive Director Board of Chiropractic
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
