STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GARY I. JONES, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1314
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
ACUPUNCTURE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff in Tallahassee, Florida, on September 22, 1986. The appearances were as follows:
APPEARANCES
For Petitioner: Gary I. Jones, pro se
3714 Zephyr Street
Houston, Texas 77021
For Respondent: H. Reynolds Sampson, Esquire
Deputy General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
This cause arose upon the Petitioner's unsuccessful completion of the examination required for licensure as an acupuncturist. The Petitioner challenged the examination grade and after an unfavorable review decision from the Board, he elected to seek a formal proceeding before the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes.
The Petitioner failed the clinical practical portion of the examination because, in the view of the exam graders, the Petitioner's adhesive dots, which were placed upon a model to indicate the Petitioner's knowledge of recognized acupuncture points on the human body, were not sufficiently within the tolerance area the promulgators of the exam considered to accurately represent each acupuncture point. Thus, on six of the questions, the examiners admitted that the dot placement touched the designated acupuncture point tolerance area, but gave the Petitioner no credit because of their view that 50 percent of the adhesive dot indicating the candidate's choice of point placement, was not inside the tolerance area circle.
Regarding two other questions, the examiners acknowledged that the Petitioner's dots were within 1/4 of an inch and an 1/8 of an inch, respectively, of the designated tolerance area for the acupuncture point
involved, but did not give credit for those two "answers." On one additional question, the dot was within 1/4 of an inch of the designated area according to one examiner and the other examiner allegedly could not find the dot. Thus, on the point location part of the clinical-practical part of the examination, the Petitioner was not given credit for the above-mentioned points out of 18 total acupuncture points he was required to find and indicate with an adhesive dot.
The cause came on for hearing as noticed, at which the Petitioner presented the testimony of Phillip Puddy, a licensed acupuncturist; Harvey Kaltsas, also a licensed acupuncturist and acupuncture instructor. The Respondent presented the testimony of Ella D. Hall, an examination development specialist for the Board of Acupuncture. Petitioner's Exhibits 1, 2 and 3 were admitted into evidence, as were Respondent's Exhibits 1, 2 and 3. The parties elected to obtain a transcript of the proceedings and reserved the right to file Proposed Findings of Fact and Conclusions of Law, concomitantly waiving the time requirement of Rule 28-5.402, Florida Administrative Code. The Petitioner timely filed its Proposed Findings of Fact and Conclusions of Law, which are treated in this Recommended Order and once again addressed in the Appendix attached hereto and incorporated by reference herein. The Respondent failed to file Proposed Findings of Fact and Conclusions of Law.
The issue to be resolved concerns whether the Petitioner sufficiently located the contested acupuncture points so as to demonstrate a basic safe level of competency and knowledge of acupuncture such that, in conjunction with the remaining portions of the exam, which he passed, he could be accorded a passing score on the entire examination.
FINDINGS OF FACT
The Petitioner sat for the July 1985 acupuncture exam. The examination consisted of two written parts, which the Petitioner passed. The practical portion of the examination (Part III) consisted of two sections. Section I consisted of a written clinical competency examination and Section II was a clinical practical examination, both of which are based on traditional oriental theories of acupuncture. Each section was graded based upon a scale of 100.
The Petitioner also passed the written portion of the practical examination and the only portion of the examination at issue is the clinical practical examination, and specifically that portion concerning location of acupuncture points on models employed for purposes of administering the examination. The Petitioner additionally successfully passed the needling technique and sanitation portions of the examination, including evaluation in such areas as proper sanitation and sterilization, the accuracy of point locations, the insertion of the needle in proper direction of flow, the proper depth of insertion, proper needle manipulation, and proper needle removal.
In addition to the needling technique portion of the examination, which the Petitioner passed, he was required to locate acupuncture points on a model provided by the Department. He was required to demonstrate basic knowledge of acupuncture points and meridian location. The point location portion of the clinical practical examination at issue, consisted of locating 18 acupuncture points on the models provided. The candidates were required to locate each point on the designated models in the anatomical position in which the models were presented. The candidates were allowed to palpate the models or press them with the fingers to aid in locating the points. Once the candidate located the point accurately, he was to place an adhesive dot on that point. The candidates were given a sheet listing the points that should be located and given 25 minutes to do so, then they were required to leave the examination room. Two
examiners then evaluated the accuracy of their point location. The examination candidates were not allowed to use point finding devices or tape measures to aid in locating the points. In order to pass the practical examination, including the section at issue involving acupuncture point location, the candidate was required to get a score of at least 70 on a scale of 100. The Petitioner scored a 56 out of a possible 100 on this portion of the examination. Six of his point locations were shown on the graders' score sheets, in evidence as Respondent's Exhibit 3, as "just touching" the circle of the acupuncture point "area of tolerance" determined by Respondent's examiners to delineate the correct area on the model of the acupuncture point involved. Those points are described as follows:
REN 12 ZHONGWAN
SP. 3 TAIBAI
U.B.64 JINGGU
S.J.4 YANGCHI
S.I.5 YANGGU
K.6 ZHAOHAI
The two graders involved were inconsistent in grading some point locations. Thus Grader "A" (depicted on Respondent's Exhibit 3) found that no dot had been placed at point "P.5 JIANSHI" at question number 257 on the examination, while Examiner "B" found that a dot had been placed at that point but graded it as being incorrect because he described it as being "1/2 inch off the point and too high." The graders also varied as to their description of the margin of error on those points which they counted as being described incorrectly by the Petitioner. On several occasions, as to those point locations graded as incorrect, the graders varied as much as 1/4 inch from each other in describing the distance the point was placed away from the acceptable tolerance circle. In one instance, at question number 266, point number "S.J.14 JIANLIAO," Grader "A" found the Petitioner's dot to be two inches off the point and too high, while Grader "B" found the Petitioner's dot to be placed only 1/4 inch too high, a significant discrepancy between the two graders. Question number 263 is another such instance. This is one of the six points mentioned above involving the dot just touching the margin of the tolerance circle.
Grader "A" found that 1/3 of the dot was inside the circle and Grader "B" found that the dot was just touching the tolerance circle surrounding that point. In fact, as to all but one of the indicated distances on the grading sheets in Respondent's Exhibit 3, where the graders describe the distance in fractions of an inch that the Petitioner's point location dot varied away from the tolerance circles delineating acceptable point location, the examiners' distances described in their comments were at least 1/8 inch and generally at least 1/4 inch different from each other. This is obviously because the examiners used no measuring device in determining the distance Petitioner's "answer dot" was from the acupuncture point or the tolerance circle surrounding it. No measuring device was used to determine how much of a given answer dot extended inside of acceptable tolerance circle.
In this connection, Witness Hall established that there was a "50 percent rule," that is, a requirement by the Department that the examination graders count an answer as correct only if 50 percent or more of the answer dot was inside the tolerance circle. This requirement is not published as a rule and was not related to the candidates before they took the examination. Given the showing by the expert testimony adduced by the Petitioner of the imprecision in point location permissible in the field of acupuncture, because of the variables described below, and because the imprecision can be "allowed for" by needle angle and manipulation, etc., the failure to inform the candidates of the
"50 percent dot within the circle" requirement was likely a significant factor causing the candidates, including the Petitioner, to locate their points with less precision. Generally accepted acupuncture practice does not require such absolute precision on all point locations.
The Respondent presented the testimony of witnesses Phillip Puddy and Harvey Kaltsas. These gentlemen have taken the Florida examination and are licensed in Florida. Witness Puddy, in fact, was at the same examination as the Petitioner and corroborated his testimony that none of the candidates were informed that their dots had to be 50 percent within the defined area of tolerance. Both witnesses acknowledged various texts on acupuncture practice and theory, introduced by the Petitioner, as being authoritative and which show that the relative imprecision of location of acupuncture points is in accord with the teachings of Chinese medicine, which is the basis for the art of acupuncture.
The "proportional measurement method" is designed to measure gross distances on the body and to determine the approximate locations of points only. Then the acupuncturist feels for a slight hollow with his fingers which more precisely locates the point before employing the use of acupuncture needles. An important part of point location is the patient's sensitivity, which the acupuncturist observes and uses in aiding him in determining the precise point location. In any event, proportional measurement alone does not necessarily accurately locate an acupuncture point, but merely provides a gross measurement and location.
The points used on the models in the examination were depicted on the models in invisible ink by the examination graders (illustrated by "black light" in the grading process). They were located by proportional measurement only. Thus, Witness Puddy established that the method of measurement used to locate the acupuncture points on the examination models is not characterized by any significant level of precision in itself, for purposes of judging the relative imprecision of a candidate's answer dot locations. Further, Witness Puddy established that there is a margin of error of 1/4 inch to one inch, depending upon which acupuncture point is involved and that if a candidate touched those areas within such a margin of error that would show a basic, competent knowledge of acupuncture. Both the Petitioner's witnesses acknowledged that various factors can alter acupuncture point locations, such as the position of the patient; the true location of a point as being beneath the skin of a patient, such that the skin can move in relation to the point location so that the point's depiction on the skin surface is an imprecise indicator, as well as the fact that the anatomical point locations simply vary because not all patients are anatomically the same.
It was established by both witnesses that an imprecision in point location by practicing acupuncturists is permissible since a point's location is judged not merely by physical measurement, but by palpation and concomitant observance of the patient's reaction and sensitivity. In this connection, when the needles are used, the insertion of the needle can vary as to its location because such factors as needle angle and means of manipulation can overcome a relative lack of precision in locating the precise acupuncture point before needle insertion. Both witnesses agreed that the use of proportional measurement does not precisely define an acupuncture point, but rather serves to locate the general tolerance area which point must then be precisely located by the use of the acupuncturist's touch, combined with observing the patient's sensitivity to touch at that point. Thus, the location of acupuncture points as done in the examination preparation is in itself a relatively imprecise means of
locating the points. In short, these witnesses established that acupuncturists differ as to what is an appropriate margin for error in locating an acupuncture point and established that there is no absolute standard for location of acupuncture points such as the "50 percent-of-the-dot" unwritten requirement in the grading of this examination. Both witnesses opined that if a candidate placed his answering dot in such a way as to contact the defined area of acupuncture point tolerance, then he has exhibited a basic understanding and competency as to acupuncture point location. These opinions were not rebutted and are accepted. Acupuncture point location is appropriately accomplished by taking into consideration the various variables involved and discussed above, many of which are subjective and peculiar to the individual patient. As shown by Respondent's only witness, Ella Hall, the preparers of the examination encircled each purported acupuncture point with an invisible ink circle delineating the tolerance area which varied anywhere from 5/16 to 15/16 of an inch and then enforced the Board's internal, unpublished requirement that the answer dot of the candidate had to be at least 50 percent within that varying tolerance circle. The graders, in turn, then used no measuring device to determine whether 50 percent of a dot was within the circle or not, nor in determining the size of the dot nor the size of the circle itself. These witnesses thus established that there was a significant level of imprecision in the point location portion of the examination's preparation and format.
Witness Puddy's testimony, as well as the authoritative text, in evidence as Petitioner's Exhibit 2, (at page 124) establishes that the purpose of proportional measurement is to determine approximate locations of points over gross distances on the body rather than to establish a single, absolute standard for making fine measurements. It was thus demonstrated by the Petitioner that the application of the requirement of the dot being 50 percent within the requested tolerance circle, located by proportional measurement, is contrary to generally accepted theory and principles of acupuncture as described by the two expert witnesses presented by the Petitioner, as well as the text material in evidence. The location of further points by this means is contrary to the generally accepted purpose of proportional measurement in the practice of acupuncture.
In summary, it has been demonstrated that the Petitioner's location of the above-mentioned six acupuncture points, which both examiners agreed touched the tolerance areas of the requested points, but for which they accorded no credit to the Petitioner, in reality are adequate demonstrations of accurate point locations. Petitioner's expert witnesses, and corroborating authoritative texts establish such point location as demonstrating a sufficiently clear and concise understanding of the prevailing principles and theories of acupuncture as to meet the purpose and intent of the examination as described in the authority discussed below.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes. Section 457.105, Florida Statutes, concerns certification and provides at Subsection (1), paragraph (c) that prior to practicing acupuncture in this State, a person who has not been certified under any of the various (nonpertinent) "grandfather" provisions must pass an examination which tests the applicant's "competency and knowledge of the practice of acupuncture." Rule 21- 12.22, Florida Administrative Code, at paragraph (4) provides that "the practical examination shall measure competency" and, as to Part III of that
exam, concerning point/meridian selection, paragraph (5) of that Rule establishes that performance shall be scored based upon exhibited competency and clinical ability.
The Petitioner has established that had the six acupuncture points, which he located by placing a dot which touched, as opposed to overlapping, the tolerance circle drawn by the test examiners, been scored correctly, he would have passed the practical examination with a grade of 72. Because the examiners were verbally instructed to mark such answers wrong if the point placement dot was not at least 50 percent within the tolerance circle, these six answers were marked as incorrect and Petitioner's failing grade resulted. The Petitioner's expert witnesses established, however, that acupuncture points vary to a significant degree in their location from patient to patient and are not capable of being located with any significant precision by the proportional measurement method, which was used by the preparers of the examination. In fact, a patient's anatomical differences which are not readily observable, as well as the position of the patient's body and the fact that certain acupuncture points lie beneath the surface of the skin and can be adequately contacted by needles inserted at varying angles from points outside even a 15/16 inch diameter circle, establish that the location of the six subject acupuncture points with the indicator dots merely touching the so-called tolerance circles does not indicate a lack of sufficient competency and clinical ability as to this facet of the examination.
In fact, the expert witnesses established that acupuncture points cannot be located precisely with mere gross proportional measurements in the first place and that palpation must be used often to locate a small hollow in the patient's body which constitutes the precise acupuncture point. Further, these witnesses established that it is thoroughly possible to adequately and safely treat a patient even from needle insertion points further away than the subject 5/16 to 15/16 tolerance circles by varying the angle and method of manipulation of the needles. They established that the necessity for precise location of the needle insertion point varies from patient to patient, depending upon which acupuncture point is involved in terms of patient sensitivity and the like. In short, these expert witnesses established with unrebutted testimony that the location of the six acupuncture points by placing the locator dots so as to merely touch the tolerance circle described by the examiners was an adequate location of the relevant acupuncture points so as to demonstrate adequate competency and clinical ability to justify a passing grade for each of these six points. These witnesses demonstrated that, in terms of a measure of competency and clinical ability, (which the Statute and Rules require to be measured by the examination), that the so-called "50 percent of the dot within the circle" requirement, which is neither a published rule nor a written agency policy, bears little or no relationship to a candidate demonstrating adequate competency and clinical ability in performing and practicing acupuncture.
Moreover, it is particularly noteworthy that the candidates for the examination, including the Petitioner, were not informed that they would be required to locate their dots at least 50 percent within the so-called tolerance circle. It is quite possible that had the candidates known of this requirement, that some greater precision might have been exhibited by the candidates, including Petitioner. In fact, however, the Petitioner and the other candidates were merely informed of the accepted acupuncture text from which the principles and theories of acupuncture could be drawn and employed in their exam preparation and weighed in their minds in supplying their examination answers. It has been shown by the Petitioner and Petitioner's expert witnesses that those
generally accepted texts do not generally dictate such a clear boundary of demarcation in locating an acupuncture point sufficiently to treat a patient.
It is equally noteworthy that in determining the diameter of the tolerance circles employed by the examiners that Ms. Hall's testimony established that no measuring devices were used such that the tolerance circles themselves were not shown to be drawn with any precision and indeed an answer dot placed by the Petitioner, which touched the tolerance circle, was not shown to necessarily have merely contacted as opposed to overlapping an accurately measured and drawn tolerance circle, even if that were proven to be the definitive means for accurately locating an acupuncture point, which was not the case.
In Alvarez vs. Department of Professional Regulation, Acupuncture, 458 So.2d 808 (Fla. 1st DCA 1984), the agency was held to have erred in denying certain applicants' licenses based upon failing to receive passing scores on the clinical practical portion of the acupuncture examination when its instructions as to required competency and performance of needle insertion, manipulation and removal were substantially insufficient and misleading. It certainly would appear that if the agency failed to instruct at all regarding a requirement that the answer dots should be located at least 50 percent within the invisible tolerance circle, this could potentially have misled or at least not sufficiently informed candidates concerning the precision the agency expected them to employ in locating these acupuncture points. Finally, for the reasons enunciated in the above Findings of Fact and Conclusions of Law, it having been shown that the "50 percent overlap of the answer dot" standard, which is not published nor is a written agency policy, and which was not communicated to the Petitioner, is arbitrary as applied to the Petitioner in this instance in view of the unrefuted expert testimony which establishes that that requirement or standard bears little or no relationship to the purposes and goals of the examination, which is to test an adequate level of competency and clinical ability in the practice of acupuncture. Witness Ella Hall's testimony regarding this standard cannot establish this requirement's reasonableness, efficacy, and consistent application as an agency policy because she had no part in the decision to employ it as an examination standard and has no knowledge of the theory and practice of acupuncture. The person allegedly possessed of such knowledge who apparently arrived at the requirement was not presented as a witness. It has clearly been demonstrated by the Petitioner that the use of the
50 percent overlap-of-answer-dot standard is an arbitrary decision or practice by the agency which resulted in the Petitioner's being accorded a failing grade on the examination when Petitioner's proof clearly showed that the answers given, in terms of the dots merely touching the tolerance circle, were sufficient to demonstrate competence and adequate clinical ability. An agency's decision (and policy) must be supported by evidence of record. McDonald vs. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). If there is no factual basis or justification for an agency's decision, then it is arbitrary. "An arbitrary decision is one not supported by facts or logic or is despotic. Administrative discretion must be reasoned and based upon competent, substantial evidence." Agrico Chemical Company vs. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978). It has thus been established that the agency's decision to accord a failing score to the Petitioner based upon this so-called "50 percent standard" is contrary to the preponderant evidence of record and the above Findings of Fact and was arbitrary, given the above found circumstances. The Petitioner's answers were reasonable under the circumstances and reflected sufficient competency and clinical ability to comport with the Legislative intent expressed in Section
457.101, Florida Statutes, in protecting the public interest in the area of regulation of the practice of acupuncture. The Petitioner should be accorded a passing grade upon the acupuncture examination at issue.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that a Final Order be entered by the Board of Acupuncture according the Petitioner a passing grade of 72 upon the subject acupuncture examination.
DONE and ORDERED this 17th day of February, 1987, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1314
Petitioner's Proposed Findings of Fact
Accepted.
Accepted.
Accepted.
Accepted.
Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter.
Accepted.
Accepted.
Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter.
Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter.
Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter.
Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial.
Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.
COPIES FURNISHED:
Gary I. Jones
3714 Zephyr Street
Houston, Texas 77021
H. Reynolds Sampson, Esquire Deputy General Counsel Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Wings S. Benton, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Marcelle Flanagan Executive Director Board of Acupuncture
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
| Issue Date | Proceedings |
|---|---|
| Feb. 17, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 17, 1987 | Recommended Order | Student gets passing grade on acupuncture exam. Agency standard used in grading was vague, bore no relation to skill being tested and not published policy; expert Testimony. |
