Z ie STATE OF FLORIDA BOARD OF PODIATRIC MEDICINE Final Order No. DOH-02-0710- FOE-MQA FILED DATE -_> 2 ~ Department of Héalth AY \ L 0. Ver PERRY V. VERLENI, By: Deputy Agency Clerk Petitioner, EJ pe ia “EL DS vs. DOAH CASE NO. 01-2093 mo . fi) DEPARTMENT OF HEALTH, a = ns : Respondent. © ~ / 27 FINAL ORDER = “3 my on This cause came before the Board of Podiatric Medicine pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on April 26, 2002, by telephone conference call for the purpose of considering the Recommended Order, Respondent’s Exceptions to Recommended Order, and Petitioner’s Response thereto (copies of which are attached hereto as Exhibits A, B, and C, respectively). Petitioner was represented by Charles J. Pellegrini, and Respondent was represented by Cherry A. Shaw. Upon review of the Recommended Order, the Exceptions, and Response to Exceptions, the argument of both counsel, and after review of the complete record in this case, the Board enters this final order as follows. RULINGS ON EXCEPTIONS I In paragraph three of Respondent’s Exceptions, the Department asks that the last sentence of paragraph 18 of the Recommended Order be stricken, to wit: “This finding does not, however, rule out podiatric medical proof of Petitioner’s competence on a question-by-question basis.” Respondent characterizes this as a factual finding for which there was no competent and substantial evidence. The Board does not consider this so much a factual finding as a statement of a legal standard. Pursuant to Seciten 120.57(1)(1), Florida Statutes, the Board May reject a clin finding which “did not comply with the essential requirements of law.” The burden on a Petitioner challenging his failure of an exam is to show that the exam was arbitrary and capricious. Harac v. Department of Business and Professional Regulation, 484 So. 2d 1333, 1537 (Fla. 3d DCA 1986); or an abuse of discretion. See State ex rel, Glasser y. JM. Pepper, 155 So. 2d 383 (Fla. ist DCA 1963); State ex rel. Topp v. Board of Electrical Examiners, 101 So. 2d 583 (Fla. Ist DCA 1958). As the Administrative Law Judge noted in her paragraph 4, candidates were “expected to answer only the question asked and to select the best answer, not merely an arguably correct answer, from four options.” Further she found in paragraph 5 “candidates frequently read too much into questions, and this causes them to answer incorrectly.” By permitting a question by question challenge, the Administrative Law Judge abandoned the arbitrary and capricious standard. Compare Alvarez v. Department of Professional Regulation, Acupuncture, 458 So. 2d 808 (Fla. Ist DCA 1984) in which misleading instructions including not identifying the particular techniques of practice rendered the exam itself fundamentally erroneous. Therefore the Board strikes the final sentence of paragraph 18 of the Recommended Order. I. The Board considered Respondent’s Exceptions in its paragraphs 7 through 37 en masse rather than on an individual basis. Respondent argues extensively that exam questions four, seven, eighteen, twenty-one, thirty, and thirty-one were valid and various findings of fact were not based upon competent, substantial evidence. The Board concluded the fact finding hearing consisted in part of Petitioner’s expert presenting testimony that his answer was a correct answer and Respondent’s expert presenting a different professional opinion. Throughout the recommended order, the Administrative Law Judge makes rulings as to which expert opinion she accepts. That completely ignores the structure of the exam to determine the best answer and to hold Petitioner to the burden of establishing the exam as a whole is arbitrary and capricious. Yet in paragraphs 10 and 11, the Administrative Law Judge recognized that the exam itself underwent an appropriate professional psychometrically sound development process. That included some question evaluators disagreeing about a particular question. The Administrative Law Judge’s findings, in particular, as to questions four, seven, and twenty show that 91%, 54%, and 81% of candidates correctly answered those questions, respectively. Given her recognition that an exam has some questions that may be more difficult than others, it only follows that the percentage of correct answers should vary by question. That someone may find one of these questions ambiguous or that Petitioner may have misunderstood questions the majority of test takers answered correctly does not as a matter of law establish arbitrariness and capriciousness of the exam. The Board does not conclude the Administrative Law Judge did not have proper evidence in the record upon which to base her specific findings. Instead the legal conclusions and the basic premise (i.e. was the exam in toto sound) were flawed. Nothing in the case law cited by the Administrative Law Judge or the parties shows that a question by question challenge is appropriate to demonstrate an exam is arbitrary or capricious. The findings challenged by Respondent clearly do not comply with the essential requirements of law. Therefore the factual findings challenged by Respondent in its paragraphs 7 through 25 are not specifically overruled. Instead the conclusions drawn that the questions should be discarded or Petitioner’s incorrect answers be scored as correct are deemed to depart from the long-standing standards for examination challenges. Ill. Respondent further takes exceptions to the Administrative Law Judge’s Conclusions of Law in paragraphs 74-76 of the Recommended Law. The Board grants these exceptions for the legal reasons previously stated and the legal argument in paragraphs 27-37 of Respondent’s Exceptions. UNCONTESTED FINDINGS OF FACT 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact. CONCLUSIONS OF LAW 1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes. 2. The Board accepts paragraphs 71-73 of the Administrative Law Judge’s Recommended Conclusions of Law. 3. Paragraph 74 is modified due to acceptance of the Respondent’s Exception to State, “Petitioner has failed to meet that burden.” 4. Paragraph 75 is rejected in that the exam was not shown to be arbitrary and capricious. 5. Paragraph 76 is rejected and will read, “Petitioner has not passed the licensure examination.” DISPOSITION Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd

Docket for Case No: 01-002093

Orders for Case No: 01-002093