STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUI-MIN TSAI, )

)

Petitioner, )

)

vs. ) CASE NO. 83-571

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ACUPUNCTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on June 21 and 22, 1983, in Orlando, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Clarine Smissman, Esquire

217 North Eola

Orlando, Florida 32801

For Respondent: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

This matter arose on Petitioner's challenge to his failing grade on the acupuncture licensing examination administered by Respondent in August, 1982. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Petitioner passed all parts of the acupuncture examination except section one of Part Four, which was the clinical practical segment of the examination. That portion required the demonstration of various needling techniques and was independently graded by two observer-examiners. Respondent then averaged the two grades to arrive at a single score for each technique Petitioner was required to demonstrate.

   
   

2. Respondent administered its first acupuncture examination in December, 1981, and its second in August, 1982 (at issue here). The examinations were developed and administered in consultation with California examiners, since that state had the greatest experience in testing and licensing acupuncturists.

   
   

3. Petitioner raised no factual dispute with respect to examiner credentials, qualifications tested, or the scoring system. Rather, Petitioner pointed to alleged errors by the examiners in administering and grading certain questions. Additionally, Petitioner contends the reading list given for the

   written portion of the examination was misleading in that it was not intended to apply to the practical portion.

   
   

4. Petitioner points to several questions where he received full credit from one examiner and a much lower grade from the other. Rather than averaging the two grades, Petitioner believes the lower grades should be thrown out as errors. However, Respondent instructed its examiners to give full credit where they failed to observe a specific technique or were otherwise uncertain of the performance. Thus, there was no showing that these diverse grades were other than a result of an examiner's failure to observe (for which Petitioner was not penalized).

   
   

5. Petitioner further challenges the instructions given, contending the examiner erred in administering certain questions. Again, however, it is at least as likely that Petitioner misinterpreted instructions which were properly given.

   
   

6. Petitioner contends he was misled by the reading list provided in advance of the examination. It was not clear, as Respondent argues, that the reading list was intended only for the written portions of the examination. However, Petitioner did not show that this misunderstanding prevented him from performing satisfactorily on the practical portion of the examination.

   
   

7. Petitioner challenges the examiner's "eyeballing" techniques to grade his selection of proper acupuncture points. Respondent concedes this is not a precise method in all cases. However, the tolerance permitted on point location will allow for slight examiner error as well as reasonable candidate error.

   This was shown to be an acceptable scoring method by the testimony of Respondent's expert witness.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 468.323, Florida Statutes (1981), provides in part:

   
   

   1. It is unlawful for any person to practice acupuncture in this state unless such person has been certified by the department.

   2. A person may become certified to practice acupuncture if he:

      (c) Passes an examination, administered by the department, which tests the applicant's competency and knowledge of the practice of acupuncture. The examination shall include a practical examination of the skills required

      to practice acupuncture covering diagnostic techniques and procedures, point/meridian selection, needle insertion, manipulation and removal, patient care, sanitation, and antiseptic application; . . .

      
      

9. The above procedures require the administration of the examination at issue here. Respondent's examination and the administration of it conform to these provisions and the requirements of Chapter 21-11, Florida Administrative Code.

   
   

10. Petitioner, who seeks to have his individual examination amended, has the burden of persuasion in these proceedings. Florida D.O.T. v. J.W.C. Co.,

Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet such burden, having presented only uncorroborated claims of examiner error, and self- serving theories which ignore plausible explanations for assigned scores.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 14th of July, 1983, in Tallahassee, Florida.

COPIES FURNISHED:

Clarine Smissman, Esquire

217 North Eola

Orlando, Florida 32801

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ann Mayne, Executive Director Board of Acupuncture Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

R. T. CARPENTER 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 14th day of July, 1983.

Docket for Case No: 83-000571

Orders for Case No: 83-000571