STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STUART SCHLEIN, D.C. )

)

Petitioner, )

)

vs. ) CASE NO. 87-2851

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

CHIROPRACTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Stuart Schlein, pro se for petitioner. William O'Neil, Esquire, Tallahassee, Florida, for respondent.

A hearing was held in Miami, Florida, on this matter on March 18, 1988, before William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. A transcript of the proceedings was filed, and the petitioner filed proposed findings of fact and conclusions of law. Rulings on the proposed findings are made in the appendix to this recommended order.

ISSUE

The issue is whether Dr. Schlein was properly graded on the November 1986 practical examination for chiropractic.

Preliminary matters

At the opening of the hearing, the petitioner, Dr. Stuart Schlein, inquired whether a former member of the Florida Board of Chiropractic Examiners, Dr.

Posner, could represent him in this proceeding. After inquiring about Dr. Posner's credentials, Dr. Posner was not accepted as a qualified representative, but Dr. Schlein was permitted to consult with Dr. Posner throughout the proceeding to assist in the presentation of Dr. Schlein's evidence.

At the hearing, David Paulson, Ph.D., and Robert Samuel Butler, Jr., D.C., testified on behalf of both parties. Petitioner introduced exhibits 1-14, and respondent introduced exhibits 1 and 2.

FINDINGS OF FACT

1. Stuart Schlein, the petitioner, was a candidate during the November 1986 chiropractic examination. He was exempt from Part I (Basic Sciences Examination) and Part II (Clinical Sciences Examination) because he had already passed the National Board of Chiropractic Examiners' examination. The practical examination consists of three portions, one on x-ray interpretation, one on chiropractic technique, and one on physical diagnosis. There was no dispute with respect to the scoring of Dr. Schlein on the x-ray interpretation portion

   of the exam, on which he received a grade of 74.2 percent. Dr. Schlein's grade on technique was 75.0 and on physical diagnosis was 72.5, for an overall score on the three portions of practical examination of 73.9 percent. Dr. Schlein would have been eligible for registration for licensure as a chiropractor if his overall grade was 75 percent or better on the practical examination. Rule 21D- 11.003(4), (5), Florida Administrative Code.

   
   

2. To conduct the technique and physical diagnosis portions of the practical examination, the Department of Professional Regulation hires examiners who have five or more years experience as licensed chiropractors in Florida who have not been disciplined or investigated by the Board. Rule 21D- 11.007(1), Florida Administrative Code. Pairs of examiners question each candidate. There is a standardization training session for examiners which lasts 2-3 hours the morning of the examination. During that training, the examiners learn the scoring scale to be used; candidates are scored on a scale from 1-4, with scores of four being the maximum. Examiners are told to independently evaluate the candidate's performance and are told how to record their answers on a sheet which can be scanned by computer, and are told the different content areas from which they may ask questions of candidates. For example, in the technique examination, there are four sub-areas to be covered, cervical, thoracic, occipital, and soft tissue. The examiner, individually, determines what he wishes to ask candidates from those subject areas. Both examiners' scores on each test are averaged to produce a candidate's final score for each test.

   
   

3. The examiners change partners from the morning to afternoon examination sessions. For approximately 30 minutes before the morning or afternoon sessions, the examiners paired for that session may discuss with each other the questions which they intend to ask. To use a legal analogy, this method of testing candidate's practical knowledge is not much different than placing two examining lawyers in a room to question and evaluate a bar applicant, after merely instructing the lawyers to "ask something about evidence, about constitutional law, and about criminal law." (Transcript 137).

   
   

4. There is no assurance that the questions posed by the examiners are at a proper level of difficulty to assess minimum qualifications for practice. There is no requirement that a given pair of examiners ask the same questions of their examinees during a morning or afternoon examination session. There is no assurance that the other examiner in the room even knows the answer to a question posed, yet both examiners are required to assign a grade for the candidate's performance on each sub-area. The Department makes a tape recording of the examination of each candidate for review.

5. Dr. Schlein's grades on the technique and diagnosis portions of the practical examination were as follows:

TECHNIQUE

Examiner I Examiner 4

Average score 75 percent DIAGNOSIS

Examiner 1 Examiner 4

1. Case History 3 3

2. Chiro. Exam. 2 2

1. Orthopedic 4 4

2. Neurological 4 3

1. Laboratory Diagnosis 3 2

2. Nutrition 2 [examiner failed to assign a grade] 18 14

   24 20

   = 75 percent = 70 percent Average score 72.5 percent

   Technique 75 percent

   Diagnosis 72.5 percent

   X-Ray 74.2 percent

   
   

   Final Average 73.9 percent

   
   

   1. Dr. Schlein objects to the grades he received for cervical and occipital on the technique exam and for neurological and nutrition in the diagnosis exam.

      
      

   2. With respect to the grade for nutrition, the Department of Professional Regulation could not explain why Examiner 4 failed to assign any grade for the candidate's answer with respect to the questions he was asked on nutrition.

      
      

   3. Dr. Schlein attempted to impeach the explanation given by Examiner 1, Dr. Butler, for the grades assigned on the four portions of the examination Dr. Schlein challenged by introducing portions of text books used in chiropractic schools which tend to support Dr. Schlein's oral answers. While the matter is not free from doubt, Dr. Schlein's text book excerpts have not convinced the Hearing Officer that the grades given are erroneous.

      
      

   4. Dr. Schlein was not properly graded, however, with respect to the area of nutrition since examiner 4 (who was not called as a witness) failed to assign any grade and the reason for his failure to do so was unexplained.

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over this matter. Section 126.57 (1), Florida Statutes (1987).

      
      

   6. As a candidate for licensure, Dr. Schlein bears the burden of demonstrating entitlement to licensure. Rule 28- 6.008(3), Florida Administrative Code, provides:

      
      

      Any hearing on the denial of a license shall be conducted in accordance with Section 120.57, and unless otherwise provided by law the applicant shall have the burden of establishing entitlement to the license.

      
      

   7. In this case, Dr. Schlein has not demonstrated that the grades he did receive were erroneous and that he is entitled to licensure.

      
      

   8. Under the decision in Alvarez v. Department of Regulation, 458 So.2d 808 (Fla. 1st DCA 1984), the Department of Professional Regulation is required to provide an examinee another opportunity to be examined where, through no fault of the applicant, there is an error in the grading of the applicant's performance on a practical examination. In Alvarez, the directions given in the acupuncture examination had misled candidates by failing to specify the school or technique of acupuncture which candidates would be required to demonstrate on the examination. As the result, the court applied Rule 21- 11.13(1) [now renumbered as Rule 21-11.013(1)], Florida Administrative Code, to require the examinees to be reexamined on the practical examination, without charge. The court stated:

      
      

      Under the circumstances, such action is fair to both sides and it protects the public [from substandard practice] but does not penalize examinees for the agency's inadequate and sometimes misleading directions. Alvarez at 811-12.

      
      

   9. Here, the procedure for examining candidates on the technique and physical diagnosis sections of the practical examination for chiropractic is exceptionally, if not excessively, subjective. Unexplained failure of one examiner to provide a score on the nutrition portion of the diagnois section of the examination is an impropriety in grading that arises from no fault of Dr. Schlein. The absence of a grade raises questions about the examiner's understanding of the grading instructions. Under all the circumstances, the appropriated remedy is to permit Dr. Schlein to be reexamined, without cost.

RECOMMENDATION

It is RECOMMENDED that Dr. Schlein be granted the opportunity to be reexamined on the practical portion of the chiropractic examination, at no cost to him.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June, 1988.

WILLIAM R. DORSEY

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988.

APPENDIX

The following are my rulings on the proposed findings of fact proposed by the petitioner.

1. Rejected as introduction.

2. Covered in paragraph 1.

3. Covered in paragraph 2.

4. Covered in paragraph 5.

5. Covered in paragraph 6.

6. Covered in paragraphs 1 and 5.

7. Rejected because it is not possible to tell what the effect of the failure of Examiner 4 to give a grade on nutrition was, other than to draw the conclusion expressed in paragraph 5 of the Conclusions of Law that the examiner did not completely understand the grading instructions.

8. Rejected for the reasons stated in paragraph 8.

9. The finding that the testimony establishes there is no uniform method for grading examinees is implicitly accepted in paragraph 3, the remainder of the paragraph is rejected as argument.

The following are my rulings of findings of fact proposed by the respondent.

The Department filed no proposed recommended order.

COPIES FURNISHED:

WILLIAM O'NEIL, ESQUIRE

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

STUART SCHLEIN, D. C. 1035 FRANKLING ROAD APARTMENT N-208 MARIETTA, GEORGIA 30667

PAT GUILFORD, EXECUTIVE DIRECTOR BOARD OF CHIROPRACTIC

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

Docket for Case No: 87-002851

Orders for Case No: 87-002851