STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAN LI CHING )

)

Petitioner, )

)

vs. ) CASE NO. 82-2930

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 4, 1983, in Miami, Florida.

Petitioner Man Li Ching appeared on his own behalf, and Respondent Department of Professional Regulation was represented by Drucilla E. Bell, Esquire, Tallahassee, Florida.

At the commencement of the formal hearing, Respondent moved to amend the style of this case, and that motion was granted. Accordingly, the style of this cause is as appears in this Recommended Order.

Respondent notified Petitioner that he had failed to achieve a passing grade on the August 1982, acupuncture examination, and Petitioner timely requested a formal hearing thereon. Accordingly, the issue for determination is whether Petitioner achieved a passing grade on the 1982 examination for licensure as an acupuncturist.

The Petitioner testified on his own behalf, and Harriet Williams testified on behalf of the Respondent. Additionally, a Joint Exhibit numbered 1 was admitted in evidence. Both parties have submitted proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Petitioner graduated from medical school in China, in 1953. While a physician in China, he had over 25 years experience as an acupuncturist. He came to the United States one year ago.

   
   

2. Petitioner applied for licensure to practice acupuncture in the State of Florida and took the acupuncture licensure examination in August 1982.

3. Petitioner failed to obtain a passing grade on Part I of the examination which concerned the statutes and rules regulating the practice of acupuncture in the State of Florida, and also Section 2 of Part IV of the practical examination which concerned sanitary procedures. Petitioner has only challenged his grade on the sanitation part of the practical examination.

   
   

4. Harriet Williams, an examination development specialist in Respondent's Office of Examination Services, developed the practical acupuncture examination after consulting with practicing acupuncturists who served as content specialists to determine the critical skills involved in the practice of acupuncture. She determined that the danger of hepatitis and other infections which can be contracted from the use of unclean needles mandated examining applicants for licensure on sanitation and sterilization procedures. She contacted Respondent's counterpart which regulates acupuncture in the State of California to obtain the services of persons experienced in grading the practical portion of that examination. She conducted a standardization process or training session for the examiners to discuss the proper method for marking the uniform grade sheet and evaluating a candidate's performance on the practical portion of the examination. The examiners were instructed to grade independently and to grade based only on their observations. They were instructed to sit three to four feet away from the candidate being examined. They were further instructed however, that if they were not paying attention or could not see the procedure clearly, they were to get up and move closer to the candidate; if they still could not see a procedure clearly, they were to give the candidate credit.

   
   

5. When Petitioner took the practical examination, both of the examiners observing his performance marked their grade sheets that he had failed to always handle in a sterile manner the needle which was inserted.

   
   

6. Petitioner failed the practical portion of the acupuncture examination due to his failure to maintain proper sterilization and sanitation procedures during that portion of the examination.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes (1981).

   
   

8. Chapter 468, Florida Statutes (1981) regulates the practice of acupuncture and requires that a practical examination be administered covering, inter alia, the areas of sanitation and antiseptic application. Section 468.323(2)(c), Florida Statutes (1981). Section 468.327, Florida Statutes (1981) grants to the Department of Professional Regulation, the authority to adopt rules regulating the practice of acupuncture and, specifically, the qualifying examinations. Pursuant thereto, the acupuncture rules in effect when Petitioner took the practical examination provide that if a candidate fails any criteria on Section 2 of Part IV of the examination, then the applicant shall be deemed to have failed Part IV of the examination. Section 21-12.22(6), Florida Administrative Code.

   
   

9. The parties hereto have stipulated that Petitioner meets all qualifications for certification as an acupuncturist except for passing the practical examination. In order to prevail in this proceeding, Petitioner must prove that he actually passed the examination, thereby demonstrating his competency to practice acupuncture in the State of Florida, and he must prove

that the Department arbitrarily and capriciously failed to give him the grade he earned. The Petitioner has failed to sustain his burden of proof. Petitioner has made no showing of any arbitrary or capricious conduct on the part of the Respondent in the administering or grading of the examination. Petitioner himself indicated that he may very well have placed his finger on the shaft of one of the needles which he was inserting. Further, it is significant that the examiners grading Petitioner did not disagree in that both of them marked their grading sheets that Petitioner had failed on the same criteria. Since acupuncture involves the insertion of needles into the human body, strict observation of antiseptic and sanitation procedures is mandated, and Petitioner's failure to maintain sterile procedures throughout the practical portion of the examination justifies the assessment of a failing grade.

Accordingly, Petitioner has failed to prove that he is entitled to certification because he in fact passed the examination or because the examination was developed or graded in an arbitrary or capricious manner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner failed to

achieve a passing grade on Part I and on Section 2 of Part IV, and therefore Part IV of the practical examination as an acupuncturist in the State of Florida.

DONE and RECOMMENDED this 27th day of April, 1983, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1983.

COPIES FURNISHED:

Man Li Ching

19100 Belaire Drive

Miami, Florida 33156

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002930

Orders for Case No: 82-002930