STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID SANDERS, )

)

Petitioner, )

vs. ) CASE NO. 92-2709

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

CHIROPRACTIC EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on July 21, 1992, in Melbourne, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: David Sanders, pro se

359 Glenwood Avenue

Satellite Beach, Florida 32937

For Respondent: Vytas J. Urba

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner should be granted additional credit for the responses given during his practical examination for licensure which was conducted during November, 1991, and for which Petitioner entered this challenge.

PRELIMINARY STATEMENT

This case began on April 15, 1992, when the Petitioner, David Sanders, filed a request for a formal hearing to review the denial of his examination results. The Petitioner, whose candidate for licensure number is 200142, had received a score of 64.0 on the practical examination for licensure and had, consequently, received a notice from the Department of Professional Regulation, Board of Chiropractic Examiners (Department) indicating he had failed to achieve a sufficient grade for licensure. The minimum score to pass the practical examination was 75.0. Petitioner challenged the neurological and diagnosis portions of case 1, and the case history, physical, laboratory, and diagnosis portions for case 2.

The case was forwarded to the Division of Administrative Hearings for formal proceedings on May 4, 1992. At the hearing, the Petitioner testified in his own behalf and offered the testimony of Dr. Rayann Kelly, a licensed doctor of chiropractic. Petitioner's exhibits numbered 3 and 4 were received into evidence. Petitioner's exhibits 1 and 2 were proffered for the record as authority for the opinions expressed by Petitioner and Dr. Kelly.

The Respondent presented the testimony of Dr. Thomas Hyde, a licensed doctor of chiropractic, and Dr. Eunice Loewe, a psychometrician employed by the Department. Respondent's exhibits numbered 1 through 3 were admitted into evidence. The videotape of Petitioner's practical examination has also been filed and admitted into evidence. It, together with Petitioner's exhibits numbered 3 and 4, have been sealed in an envelope to protect the confidentiality of the materials they contain.

The transcript of the hearing was filed on August 20, 1992. The Respondent filed a proposed recommended order which has been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. Petitioner, David Sanders, is a candidate for chiropractic licensure. His candidate for licensure number is 200142, and he took the November, 1991, practical examination administered by the Department.

   
   

2. Petitioner received a score of 64.0 on the practical examination. Petitioner's score fell below the minimum score for passing, 75.0. Petitioner timely challenged the examination results and claimed that the Department had incorrectly graded Petitioner's responses and performance during the examination.

   
   

3. In this case, the practical examination was administered by two examiners who, independently of one another, scored the responses given by Petitioner when presented with two case studies.

   
   

4. For Case 1, the scoring was divided into fourteen sections or subsections where the candidate was evaluated and given points based upon the responses given.

   
   

5. For the orthopedics section of Case 1, the Petitioner was given a scenario of facts from which he was to determine the appropriate tests to be administered to the patient. Following selection of the tests to be given, Petitioner was required to perform the test. For an inappropriate test, no points were awarded, even if the candidate performed the test correctly. Of the nine tests listed, four were to be chosen and performed. One point was awarded for each appropriate test correctly performed.

   
   

6. In response to the orthopedics section, Petitioner selected three appropriate tests to perform. Consequently, the maximum grade, per examiner, he could have received was a score of three. Petitioner received a score of two from one examiner, and a three from the other. The first examiner commented that the Yeomans test was wrong. Since Yeomans was an appropriate test to

   perform, and Petitioner correctly performed the test, Petitioner should have received a three on that section from that examiner.

   
   

7. Under the neurological subsections of Case 1, Petitioner was required to identify, based upon the fact scenario given, four muscles which should be examined and tested. Petitioner only identified three relevant muscles. Consequently, he received a score of three from each examiner. The scoring on this subsection was correct.

   
   

8. Under subsection 8 of the neurological portion Petitioner received no credit as he failed to select three appropriate tests and correctly interpret the responses. Accordingly, the scoring on this subsection was correct.

   
   

9. The final subsection of the neurological portion was the diagnosis rendered based upon all the findings of the scenario and test results. Since Petitioner rendered an inappropriate diagnosis, no points were awarded. The scoring on this subsection was correct.

   
   

10. Case 2 of the physical examination contained nine sections or subsections for which Petitioner could have received credit.

    
    

11. The first section of Case 2 required Petitioner to obtain a history from the patient. To achieve a perfect score on this section, the candidate had to inquire into seven or more areas of relevant history. If so, the score for the section would be a four. In this case, Petitioner should have received a four from both examiners regarding the history taken. As it was, Petitioner only received a three from the examiners.

    
    

12. In order to receive credit on the physical-selection portion of the test, Petitioner was required to auscultate the heart and lungs, and purcuss the chest. Since he failed to do so, the scoring on this subsection was correct.

    
    

13. In connection with subsections 18 and 19 of Case 2, Petitioner failed to receive full credit because he did not indicate an appropriate laboratory test. Had Petitioner requested a SMAC test, full credit would have been given for both subsections. As it was, because Petitioner failed to request a SMAC test, he could not receive credit on either subsection. The scoring on these subsections was correct.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

15. When a candidate for licensure receives a failing grade through no fault of his own, such candidate should be granted permission to retake the examination at the next scheduled testing date at no charge. See Rule 21- 11.013(1), Florida Administrative Code.

    
    

16. The Petitioner bears the burden of proof to show that his responses to the practical examination were incorrectly scored or graded in order to receive credit for the responses given. Where the examiner acts within the testing criteria and accurately scores the responses, a test result may not be altered.

    
    

17. In this case, Petitioner has established that he should have received a score of three from both examiners on Case 1, orthopedics. Based upon that change, Petitioner would have received a seventy-five percent for that section.

18. Further, Petitioner should have received a four from both examiners on the subsection case history in Case 2. Based upon that change, Petitioner would have scored one hundred percent for that subsection.

    
    

19. Except as noted above, the Petitioner has failed to establish the practical examination was scored incorrectly by the Department.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Board of Chiropractic Examiners enter a final order changing Petitioner's score on the November, 1991, physical examination as noted above in order to recalculate and determine whether or not Petitioner failed the examination through no fault of his own.

DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1992.

APPENDIX TO CASE NO. 92-2709

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. None submitted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. With regard to paragraph 1, with the deletion of the words "on physical diagnosis" in sentence 1, the paragraph is accepted.

2. Paragraph 2 is accepted.

3. Paragraph 3 is rejected as contrary to the weight of the evidence.

4. Paragraph 4 is accepted.

5. Paragraphs 5 through 9 are accepted.

COPIES FURNISHED:

David Sanders

359 Glenwood Avenue

Satellite Beach, Florida 32937

Vytas J. Urba

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Diane Orcutt Executive Director

Board of Chiropractic Examiners 1940 North Monroe, Suite 60

Tallahassee, Florida 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. Some agencies allow a larger period within 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: 92-002709

Orders for Case No: 92-002709