STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEJANDRO M. TIRADO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1943

)

BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 12, 1991. Petitioner set out posthearing argument in a letter dated June 19, 1991, received by the Division of Administrative Hearings the following day.

Respondent's proposed recommended order, filed June 26, 1991, contains proposed findings of fact, which have been adopted, in substance, insofar as material.

APPEARANCES

For Petitioner: Alejandro M. Tirado

606 First Street

Neptune Beach, Florida 32266

For Respondent: Vytas J. Urba, Esquire

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

Whether petitioner should have been awarded a passing grade on the clinical portion of the September 1990 optometry licensure examination?

PRELIMINARY STATEMENT

After petitioner learned he had failed the clinical portion of the optometry licensure examination, he asked for a review, which took place in December of 1990. Unable to persuade reviewers that he should be deemed to have passed this portion of the examination, he filed a pleading respondent construed as a petition for formal administrative hearing, and referred to the Division of Administrative Hearings for hearing, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

In that pleading, he stated objections to the score he received on his performance of an objective refraction (two of eight possible points), on his performance of a subjective refraction (three of twelve possible points), for his evaluation of the anterior chamber depth of an eye (none of four possible points) and for his performance of Goldmann tonometry.

FINDINGS OF FACT

1. As instructed, petitioner reported for the clinical portion of his optometry licensure examination with his own retinoscope. But the patient he brought with him was not suitable (as a subject for another candidate) because neither of her eyes had

   
   

   spherical objective and subjective error cali- brated in minus cylinder form within +6.0D to

   -6.0D and . . . an astigmatic correction objectively and subjectively within +0.75 to

   +4.0D or -0.75 to -4.0D.

   
   

   Respondent's Exhibit No. 1. Once this was discovered, petitioner left the examination site, recruited another patient, and returned in time to take the examination with a group of about ten other applicants.

   
   

2. An information pamphlet explained beforehand what the candidates would be asked to do during the clinical examination:

   
   

   . . . You will be allowed 35 minutes to com- plete this section. Two licensed optometrists will independently observe and grade you. You may conduct the specified procedures in any appropriate order. A blank sheet of paper will be provided to you to record the results of your examination. You are allowed a brief period of time to make notes on the blank sheet of paper before you enter the examination room.

   Tests should be done on both eyes (including dilated eye). Points will be assigned according to the criteria listed below:

   
   

   1. Patient History (5 points)

      1. Chief complaint

      2. Personal medical history

      3. Personal ocular history

      4. Family medical history

      5. Family ocular history

         
         

   2. Follow-up Information (7 points)

      Follow-up as necessary on the above criteria.

      
      

   3. Visual Acuity (2 points)

      
      

   4. Pupillary Examination (6 points)

      1. Pupil size

      2. Direct and consensual response to light

      3. Afferent Pupillary Reflex

         
         

   5. Confrontation Fields Test (4 points) Confrontation Fields test should be done as described in Duane, J.D. Clinical Ophthal- mology, Harper and Row.

   6. Extra-ocular muscle balance (4 points)

      1. Versions

      2. Distance cover test

         
         

   7. Objective examination (retinoscopy)

      (8 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists.

      
      

   8. Subjective refraction (12 points)

Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists.

In the second section, you will examine your own patient's eyes. This portion will be graded by examiners different from the exam- iners of Section 1. They will give you direc- tions and request certain views of the eye or ask for information as observe your performance through a teaching arm on the slit lamp or a teaching mirror on the BIO. They will assign grades independently. You will be asked to do the following procedures according to the specified criteria:

1. Binocular indirect ophthalmoscopy (15 points)

   Accurately views and evaluates retinal land- marks as requested. Five points will be given for each of the three areas. Note: Patient will be in reclined position during this pro- cedure. We will supply a Keeler BIO headset. However, you will be allowed to use your own BIO if it has attached teaching mirrors.

   
   

2. Biomicroscopy (anterior segment) (16 points) Demonstrates requested view of anterior struc- tures of the eye. Four points each will be given for performance related to:

   1. Cornea

   2. Anterior chamber

   3. Lens

   4. Anterior vitreous

   
   

3. Goldman[n] tonometry (5 points) Accurately measures intra-ocular pressure.

   
   

4. Biomicroscopy (posterior segment) (8 points)

   Accurately views and evaluates posterior pole landmarks as requested with two points each for four designated areas.

   Note: The Zeiss slit lamps are equipped with Hruby lenses. If you prefer a fundus contact lens, or a 90 diopter lens, you must provide your own lens.

5. Gonioscopy (8 points)

Accurately views and evaluates angle structure.

To protect the patient, we will put time limits on the amount of time you will have to attempt each of the section two procedures. Timing will start after you receive the instructions from the examiner and will continue until you notify the examiner to grade the procedure.

Respondent's Exhibit No. 1. After petitioner's return with a patient whose eyes met the examiners' criteria, he was tested in the manner the candidate information booklet had described, which is the same procedure that has been followed since 1986.

Refractions

1. Robert Roos, a 43-year-old compound myopic astigmatic (who was assigned the number 079), was the patient it fell to petitioner to examine in section one. Before petitioner saw Mr. Roos, three licensed optometrists independently evaluated Roos' eyes. After objective refraction or retinoscopy of his right eye, they recorded astigmatic orientation or axis values of 110o, 115o and 116o, spherical values of -2.75, -2.5 and -1.75 diopters, and cyllindrical values of - 1.0, -1.75 and -1.75 diopters. Their subjective examination of the same eye yielded axis values of 107o, 110o and 111o, spherical values of -2.25,

   -2.25 and -1.75 diopters, and cyllindrical values of -1.5, -1.5 and -2.0 diopters.

   
   

2. After the examiners' retinoscopy and subjective refraction, but before the candidates evaluate the patients, their left eyes are dilated with drops containing 1.0% tropicamide and 2.5% neosynephrine, the same solution that has been used since 1983. The result is left-eyed cycloplegia, paralysis of the intraocular muscle which precludes normal pupillary response of the kind petitioner observed (and reported as +4) in Mr. Roos' right eye, just before performing the refractions. (Patients' left eyes are dilated so candidates can perform other procedures.)

   
   

3. As required, petitioner performed his own objective refraction with a retinoscope. He reported an astigmatic orientation of 105o, assigned a spherical value of -0.75 diopters, and put the cylindrical value at -2.25 diopters, for Mr. Roos' (undilated) right eye. After subjective evaluation, he reported a prescription he said effected a correction to 20/20 (a claim no examiner had occasion to evaluate), an axis value of 100o, a spherical value of

   -1.25 diopters and a cylindrical value of -2.0 diopters.

   
   

4. In keeping with the grading protocol applied evenhandedly to all candidates, petitioner's evaluations were compared, item by item, to those of the examiner who most nearly agreed with his conclusions. This yielded discrepancies of 5o, 1.0 and 0.5 diopters for the retinoscopic or objective refraction results; and of 7o, 0.5 and 0.0 diopters for the subjective results. In no case did his results fall between differing examiners' results, although he agreed with one examiner on one result. Petitioner received two points for the objective refraction portion of the test and three points for the subjective portion.

   Chamber Depth

   
   

5. For section two of the clinical portion of the test, Mr. Roos returned to the candidate with whom he came to the examination, and petitioner turned to the eleventh-hour recruit who had accompanied him. Reading the prescribed script, an examiner instructed petitioner in these words:

   
   

   Estimate the depth of the anterior chamber using the Von Herrick-Shaffer technique.

   Remember that IV is wide open and I is narrow.

   
   

   Respondent's Exhibit No. 2. The anterior chamber is deepest at the center and shallowest near the limbus, where the cornea joins the sclera, and aqueous fluid filters out of the eye. Because the angle at the junction affects the rate of flow, the depth at the chamber periphery is more likely to be of clinical significance than the depth at the center.

   
   

6. The Von Herrick-Shaffer technique is a means of measuring chamber depth at the periphery, and not in the middle: a slit lamp casts the cornea's shadow on the chamber floor, and the ratio between the length of the shadow and the width of the cornea is determined. By whatever technique, custom and practice mandate measurement of the depth of the anterior chamber at the edge. When petitioner reported the depth at the center of the chamber, neither examiner (both of whom evaluated independently) awarded any points.

   
   

   Tonometry

   
   

7. The Goldmann tonometry portion of the test required candidates to gauge intraocular pressure by placing fluorescein on the white of the patient's eye, then placing a probe and aligning the mires of the tonometer. An examiner read to each candidate these directions beforehand:

   
   

   Add fluorescein to non-dilated eye. Perform applanation tonometry and indicate when you have the proper measurement. You will be given a maximum of 2 minutes to perform this procedure.

   
   

   Respondent's Exhibit No. 2. Because the first examiner gave petitioner full credit, and the second gave him no credit, he received half credit for this part of the examination.

   
   

8. At hearing, petitioner testified that he was not ready for the second examiner to grade, and conceded that the mires were no longer in alignment when the second examiner checked. (The second examiner also noted a misplaced light source.) But petitioner, who had the prerogative to "indicate when [he] ha[d] the proper measurement," Respondent's Exhibit No. 2, and did so before the first examiner checked, said nothing to the second examiner (who followed closely on the first) to indicate that he felt the measurement was no longer "proper."

   
   

   CONCLUSIONS OF LAW

   
   

9. Since the Board of Optometry referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

10. The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour,Inc., v. State Division of Beverage,

    347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

11. The evidence refuted the suggestion that eyedrops in Mr. Roos' left eye in any way affected his right eye. Respondent scored petitioner's refractions in keeping with its rule on the subject, which provides:

    
    

    1. Objective Examination (Retinoscopy)

       1.1 Obtains and records accurate

       retinoscopy findings 8

       (Points shall be assigned for this criterion as follows: 8 points - Sphere, cylinder, axis within the following tolerances:

       sphere: +/-0.50D

       cylinder: +/-0.50D

       for cylinder power: axis tolerance: 0.75 D to 1.25 D +/-10

       1.50 D or greater +/-8

       6 points - No more than one component beyond tolerance above and not beyond tolerances below:

       sphere: +/-0.75D

       cylinder: +/-0.75D

       for cylinder power: axis tolerance: 0.75 D to 1.25 D +/-15

       1.50 D or greater +/-10

       4 points - No more than two components beyond tolerances for score of 8 points and not beyond tolerances for score of 6 points.

       2 points - Sphere, cylinder or axis in error by the following tolerances:

       sphere: +/-1.00D

       cylinder: +/-1.00D

       for cylinder power: axis tolerance:

       0.75 D to 1.25 D +/-16 to 22

       1.50 D or greater +/-11 to 17

       0 points - Sphere or cylinder error greater than or equal to +/-1.25 D or axis beyond tolerance for score of 2 points.

    2. Subjective Refraction

    1.1 Obtains and records accurate

    subjective refraction finding 12

    (Points shall be assigned for this criterion as follows: 12 points - Sphere, cylinder, axis within the following tolerances:

    sphere: +/-.025D

    cylinder: +/-0.25D

    for cylinder power: axis tolerance: 0.75 D to 1.25 D +/-5

    1.50 D or greater +/-3

    9 points - No more than one component beyond tolerances above and not beyond tolerances below.

    sphere: +/-0.50D

    cylinder: +/-0.50D

    for cylinder power: axis tolerance:

    0.75 D to 1.25 D +/-7

    1.50 D or greater +/-5

    6 points - No more than two components beyond tolerances for score of 12 points and not beyong tolerances for score of 9 points.

    3 points - Sphere, cylinder, or axis in error by the following tolerances:

    sphere: +/-0.75D

    cylinder: +/-0.75D

    for cylinder power: axis tolerance:

    0.75 D to 1.25 D +/-8 to 12

    1.50 D or greater +/-6 to 10

    0 points - Sphere or cylinder error greater than or equal to +/-1.00 D or axis error greater than tolerances for score of 3 points.)

    
    

    The 1.0 diopter deviation in spherical values precluded a score of more than two points for retinoscopy, while the 7o deviation in axis values on the subjective refraction limited that score to three points.

    
    

12. Petitioner's failure to report the anterior chamber depth that the specified technique would have yielded justified withholding any credit for that answer. Under test protocol of which petitioner was duly apprised, his failure to alert the second tonometric examiner that he needed to realign the tonometer's mires made the award of half credit for tonometry appropriate. In short, petitioner has demonstrated no unfairness in the scoring of the clinical portion of his optometry licensure examination nor any reason why he is entitled to licensure.

RECOMMENDATION

It is, accordingly, recommended that respondent deny petitioner's application for licensure on the basis of the September 1990 optometry licensure examination, without prejudice to any subsequent application.

RECOMMENDED this 10th day of September, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1991.

COPIES FURNISHED:

Alejandro M. Tirado 606 First Street

Neptune Beach, FL 32266

Vytas J. Urba, Esquire 1940 North Monroe Street

Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Patricia Guilford, Executive Director Board of Optometry

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-001943

Orders for Case No: 91-001943