STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADAM AUSTER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1502

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 7, 1990, in Ft. Lauderdale, Florida before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Adam Auster, pro se

801 South Federal Highway Pompano Beach, Florida 33062

For Respondent: E. Harper Field, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue in this proceeding is whether Petitioner has been unfairly denied licensure as a podiatrist due to unreasonable or incorrect grading of the licensure examination.

PRELIMINARY STATEMENT

By letter dated January 8, 1990, the Petitioner requested a hearing to contest the failing grade he received on the podiatry licensure examination given on July 1, 1989. At the initial review of his exam, Petitioner challenged questions 5, 6, 9, 12, 22, 27, 28, 32, 39, 45, 46, 47, 49, 50, 51, 57, 62, 64,

69, 72, 77, 79, 86, 101, 102, 103, 106, 109, 112, 113, 116, 118, 129, 135, 139,

154, 160, 167, 177, 188, 189, 198 and 199 on the A.M. portion of the exam.

Petitioner also challenged questions 1, 5, 12, 15, 18, 22, 23, 24, 25, 26, 31,

39, 42, 67, 75, 100, 110, 151 and 152 on the P.M. portion of the exam.

Prior to the commencement of the hearing, Petitioner abandoned his challenge to all of the questions except questions 28, 45, 46, 47, 62, 64, 69,

79, 101, 116, 139, 160, and 189 on the A.M. portion of the exam and questions 1, 12, 18, and 24 on the P.M. portion of the exam.

At the hearing, Petitioner testified on his own behalf and also presented the testimony of John Fenev, a Florida licensed podiatrist. During the presentation of this case, Petitioner identified four (4) separate medical references to support his challenge to certain questions. Petitioner was directed to submit copies of those references to counsel for the Respondent and then to the Hearing Officer within twenty one (21) days of the date of the hearing. As of the date of this Recommended Order, no copies have been provided.

Respondent presented the testimony of three witnesses: David Bolton, who was accepted as an expert in the area of examination development. Dr. Melvin Fried, who was accepted as an expert in the area of biochemistry; and Dr.

Warren Simmonds, who is a licensed podiatrist and a member of the Board of Podiatric Medicine in the state of Florida. Dr. Simmonds was accepted as an expert in the area of podiatry.

At the hearing, Respondent produced all of the questions challenged in Petitioner's initial review of the exam. The A.M. questions and answers were marked as Respondent's Exhibit 1. The P.M. questions and answers were marked as Respondent's Exhibit 2. Pursuant to Section 455.230, Florida Statutes (1989), the examination questions and answers have been sealed and are not open to public inspection.

At the conclusion of the hearing, Petitioner requested an opportunity to submit additional medical references to support his challenge to certain questions. Petitioner was instructed to submit his proposed late-filed exhibits to counsel for the Respondent within ten days (10) of the date of the hearing.

Respondent was granted five days (5) to respond to the proposed exhibits which were to be submitted to the Hearing Officer within twenty one (21) days of the date of the hearing. As of the date, of this Recommended Order, no late-filed exhibits have been submitted.

A transcript of the hearing was filed on July 3, 1990. The parties were instructed at the conclusion of the hearing that post-hearing submittals, including proposed recommended orders, were due within ten days (10) after the date the transcript was filed. Respondent has timely filed a proposed recommended order. As of the date of this Recommended Order, no submittal has been received from the Petitioner.

FINDINGS OF FACT

Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact:

1. In order for Petitioner to obtain a license as a podiatrist in Florida, he is required to successfully complete a licensure examination. The exam is administered by the Department of Professional Regulation. There are nine subject areas determined by the Board and set forth in the Board Rules which are tested on the exam. The questions are developed by consultants and reviewed by individuals within the profession. After the exam, the results are evaluated

   and those questions that were missed by a significant portion of the applicants are again reviewed by content experts before the final "correct answer" is determined.

   
   

2. In July of 1989, Petitioner took the licensure exam and received a grade of 261. A score of 270 was necessary for Petitioner to receive a passing grade on the exam.

   
   

3. Each of the challenged questions are worth one point. Therefore, Petitioner must receive credit for nine of the challenged questions in order to achieve a passing score.

   
   

4. The exam instructions direct the candidates to select the best answer or the most appropriate answer.

   
   

5. The examination is developed to test minimum competency for an entry level podiatrist.

   
   

6. Although Petitioner challenged the overall validity of the examination, no evidence was presented to substantiate the contention that the exam does not reasonably test minimum competency.

   
   

7. During the hearing, Petitioner abandoned his challenge to questions 28, 45, 62, 64, 101, 139 and 160 on the A.M. portion of the exam and no evidence was presented in connection with those questions.

   
   

8. Question 46 on the A.M. portion of the exam deals with enzyme catalyzed reactions. While Petitioner testified that he did not understand the question, the question was not unreasonably written or unduly confusing. The evidence established that the answer deemed "correct" by Respondent was the only choice listed which properly answered the question.

   
   

9. Question 47 on the A.M. portion of the exam asked the applicant to pick the enzyme that is lacking as a result of the inborn error of galactose metabolism, galactosemia. Petitioner selected answer B, galactose-1-phosphate uridylyltransferse. The evidence established that there is no such substance as that listed in answer B. The correct answer according to the Respondent is answer C, hexose-1-phosphate uridylyltransferse. While Petitioner contends that he was not familiar with the spelling of the enzyme listed in answer C, the evidence indicates that the spelling in that answer is an accepted alternative spelling and answer C was the most correct answer.

   
   

10. Question 79 on the A.M. portion of the exam asks the exam taker to select the answer that explains what indirect bilirubin refers to. Petitioner challenged the question as confusing. Petitioner testified that he was unfamiliar with the term "indirect bilirubin" which is contained in the stem of the question. The evidence indicates that the term is used interchangeably with the term "conjugated bilirubin" with which Petitioner was familiar. The term "indirect bililrubin" is well-known and accepted in medical fields and included in most medical texts. Therefore, the question was not unduly misleading or confusing. There is no dispute that the answer deemed correct by Respondent's was the only choice listed which correctly answered this question.

    
    

11. Question 116 on the A.M. portion of the exam requires the exam taker to choose the age by which the babinski reaction is normally outgrown. The correct answer according to the Respondent is answer B, two and a half years.

    Petitioner selected answer A, 10 months. The reference cited by Respondent in

    support of its answer indicates that the babinski reaction may persist until two and half years. However, some recognized medical texts state that the babinski reaction is typically outgrown by the age of eight (8) to ten (10) months.

    Because the question is framed in terms of "normally outgrown", it is misleading and Petitioner's answer should be accepted as correct.

    
    

12. With respect to question 139 on the A.M. portion of the exam, after reviewing the question and the Respondent's answer, Petitioner agreed that the Respondent's answer was the only correct response. Therefore, Petitioner withdrew his challenge to this question.

    
    

13. Question 189 on the A.M. portion of the exam concerns a patient who presents with a persistent complaint of bluish red mottling upon exposure to cold. The question requires the applicant to choose the most likely diagnosis. The correct answer according to the Respondent is answer B, livedo reticularis. Petitioner's chose answer C, raynaud's disease. There is no dispute that Petitioner's answer is incorrect. Petitioner contends that the question is misleading because the skin of a patient with livedo reticularis may return to normal upon warming. However, while the skin of some patients may return to normal, there is no evidence that the skin of all patients with the condition will return to normal upon warming. Thus, the question is not misleading.

    
    

14. With respect to question 1 on the P.M. portion of the exam, after reviewing the question and the Respondent's answer, Petitioner agreed that the Respondent's answer was the only correct response. Therefore, Petitioner withdrew his challenge to this question.

    
    

15. With respect to question 12 on the P.M. portion of the exam, after reviewing the question and the Respondent's answer, Petitioner agreed that the Respondent's answer was the only correct response. Therefore, Petitioner withdrew his challenge to this question.

    
    

16. Question 18 on the P.M. portion of the exam requires the exam taker to choose the primary physiologic action of secretin. According to the Respondent, the correct answer is B, stimulate pancreatic bicarbonate secretion. Petitioner concedes that the Respondent's answer is one of the physiological actions of secretin. However, he contends that it is not the "primary" physiological action. Even if Petitioner's contention is true, none of the other possible answers were physiological actions of secretin. Therefore, the Respondent's choice of the correct answer was the best answer available.

    
    

17. With respect to question 24 on the P.M. portion of the exam, both parties concede that none of the answers listed are correct and, therefore, the question should be disregarded.

    
    

18. Other than the questions discussed above, Petitioner presented no evidence in support of a challenge to any other questions.

    
    

19. The evidence established that Petitioner is entitled to credit for two

    (2) of the questions that he challenged on the exam. Granting him credit for those questions would raise his score to 263. Petitioner still has not achieved a high enough score to pass the exam.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

21. The Respondent has the authority to administer an examination to determine the qualifications of a person seeking to be licensed as a podiatrist in this state. Section 461, Florida Statutes (1989) and Rule 21T-11, Florida Administrative Code.

    
    

22. Petitioner has the burden of proof in this case and must prove that the Respondent acted erroneously or arbitrarily or capriciously in the administration and grading of the exam.

    
    

23. The Petitioner has failed to carry his burden of proof in this proceeding. While the evidence established that Petitioner was entitled to credit for two (2) of the questions he challenged, Petitioner has still not achieved a passing score on the exam.

    
    

24. Petitioner did not present any evidence regarding the overall validity of the exam or his contention that the exam did not fairly test minimum competency. See, Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984).

    
    

25. Petitioner failed to establish that Respondent improperly denied him a license through unfair or incorrect grading of the licensure examination.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his July, 1989 examination for a podiatrist's license be regraded in order to award him a passing grade be DENIED.

DONE and ORDERED this 30 day of July, 1990, in Tallahassee, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30 day of July, 1990.

APPENDIX

The Respondent submitted a Proposed Recommended Order including proposed findings of fact and conclusions of law. The Petitioner did not submit any post-hearing filings.

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order were Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 2.

2. Adopted in substance in Findings of Fact 3.

3. Included in the preliminary statement.

4. Included in the preliminary statement.

5. Included in the preliminary statement.

6. Included in the preliminary statement.

7. Included in the preliminary statement.

8. Included in the preliminary statement.

9. Adopted in substance in the preliminary statement and in Findings of Fact 4 and 5.

10. Rejected as constituting argument rather

    
    

    than a finding of fact.

    The subject

    matter is addressed in Findings of Fact 6.

11. Adopted in substance in Findings of Fact 7.

12. Adopted in substance in Findings of Fact 7.

13. Adopted in substance in Findings of Fact 8.

14. Adopted in substance in Findings of Fact 9.

15. Adopted in substance in Findings of Fact 10.

16. Subordinate to Findings of Fact 11.

17. Adopted in substance in Findings of Fact 13.

18. Adopted in substance in Findings of Fact 16.

19. Adopted in substance in Findings of Fact 17.

20. Included in the preliminary statement.

21. Adopted in substance in Findings of Fact 18.

COPIES FURNISHED:

E. Harper Field, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Adam Auster

801 South Federal Highway Pompano Beach, Florida 33062

Patricia Guilford Executive Director

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 90-001502

Orders for Case No: 90-001502