STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCAR BUSSO, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0009

)

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 27, 1997, in Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Oscar Busso, pro se

2501 South Ocean Drive, No. 934

Hollywood, Florida 33019

For Respondent: Edward M. Lerner, Esquire

Steven A. Grigas, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to be licensed as a physician assistant.

PRELIMINARY STATEMENT

In October 1995, Petitioner took the examination that is a prerequisite to licensure as a physician assistant. The

examination was divided into four parts. Petitioner received a passing score on all parts of the examination except the part referred to as “Clinical Exam.” Petitioner failed the licensure examination because he did not pass the Clinical Exam.

Petitioner thereafter timely challenged the grading of his performance on the Clinical Exam,1 the matter was referred to the Division of Administrative Hearings, and this formal proceeding followed.

At the formal hearing, the Petitioner testified on his own behalf, but presented no other witness and no exhibit.

Respondent presented the testimony of Eunice Philar and Richard

E. Wilkes. Dr. Philar, a psychometrician employed by Respondent, was permitted to express expert opinions within the scope of her expertise. Mr. Wilkes, a physician’s assistant who has extensive experience as a test examiner, was also permitted to express expert opinions within the scope of his expertise. Respondent offered 12 exhibits, each of which was admitted into evidence. One of Respondent’s exhibits was a video of Petitioner’s performance during the Clinical Exam portion of the licensure examination. The parties agreed that the video would not be played at the formal hearing, but that the undersigned would view the video after the formal hearing. The undersigned has viewed the video in its entirety.

A transcript of the proceedings has been filed. The Respondent filed a proposed recommended order, which has been

duly considered by the undersigned in the preparation of this Recommended Order. Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner sat for the physician assistant licensure examination administered by Respondent October 6 - 9, 1995. Petitioner passed all portions of the examination except for the “Clinical Exam” part of the examination. Because he did not pass the Clinical Exam, Petitioner failed the licensure examination.

2. Thereafter, Petitioner requested the opportunity to review the scoring of his examination and the video that was made of the performance. Petitioner was given ninety minutes for that review.

3. The clinical exam required the candidate to physically examine “patients” with stated vital signs and presenting symptoms. The “patients” were healthy models. The candidate's examination of each patient was closely viewed by two examiners who separately graded various components of the candidate’s performance. The performance was video taped. The video tape included audio so that the verbal instructions to the candidate and the candidate's explanation of his examination could be heard.

4. The Petitioner challenged the scoring of 17 components of the examination. Upon review of Petitioner’s challenge, Respondent gave him additional credit for 10 of the challenged

   components. That additional credit raised his score from 425 to 500, still short of the 600 points needed for a passing grade.

5. Respondent established that Petitioner was given all the credit he deserved for his performance on the clinical examination. Even if Respondent had given additional credit for all 17 components he challenged, the Petitioner would not have achieved a passing score.

6. This test was not arbitrary or capricious. The questions used were consistent with the instructions given the candidates and similar in nature to those used in other clinical examinations.

7. Petitioner failed to establish that he was entitled to additional credit for his performance on the Clinical Exam portion of the physician assistant licensure examination.

   CONCLUSIONS OF LAW

   
   

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

9. Section 455.2173, Florida Statutes, provides, in pertinent part, as follows:

   (1)(a) The Agency for Health Care Administration shall provide services for the preparation and administration of all examinations. The agency shall ensure that the examinations adequately and reliably measure an applicant’s ability to practice the profession regulated by the agency . . .

   * * *

   (2) ... The board, or when there is no board, the agency shall make available an

   examination review procedure for applicants and charge an examination review fee not to exceed $75 per review. Unless prohibited or limited by rules implementing security or access guidelines of national examinations, the applicant is entitled to review his examination questions, answers, papers, grades, and grading key. . . .

10. Because Petitioner was a foreign trained physician, he had a temporary license to work as a physician assistant at the time he took the licensure examination. Because he did not elect to defer taking the licensure exam, Petitioner was required to pass the licensure examination to continue his work as a physician assistant.2 To continue his work as a physician assistant, Petitioner was required to pass the licensure examination administered by Respondent. See, Section 458.347(7), Florida Statutes.

11. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

12. The exhibits in this proceeding shall be sealed to protect the confidentiality of the examination process.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s challenge to the scoring of his performance on the clinical exam portion of the physician assistant examination administered in October 1995.

DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997

ENDNOTES

1/ In addition to challenging the scoring of 17 components of his performance on the Clinical Exam, Petitioner’s letter to Respondent’s bureau chief on April 15, 1996, set forth in nine separately numbered paragraphs reasons he believed he had been unfairly treated by Respondent. None of the reasons would provide a basis to order that the evaluation of his performance on the Clinical Exam be changed from a failing grade to a passing grade. At most, the reasons cited by Petitioner would establish a basis to order that he be permitted to take the examination a second time. That opportunity is already available to Petitioner.

2/ The first numbered paragraph in Petitioner’s letter asserts that Respondent failed to timely inform him as to the options he had as to taking the test. These options were the result of litigation brought against Respondent by a non-profit group named Medical Graduates Physicians Assistant Association. To settle that litigation, Respondent agreed to permit foreign trained physicians who were sitting for the physician assistant examination to work as a physician assistant with temporary licensure until the results of a second licensure examination were known. The second examination was to be administered no sooner than July 15, 1996. The options made available to the candidates were straightforward. Petitioner was advised in writing that he could continue to work as a physician assistant under his temporary license until the results of the second examination were known. Respondent attempted to mail the explanation of the three options to the candidates prior to the

date of the examination. Petitioner did not receive that information from Respondent prior to the day the examination

began. Although Petitioner testified, credibly, that he felt pressured to make a decision, it is clear that he made an informed decision to take the exam in October 1995.

COPIES FURNISHED:

Mr. Oscar Busso

2501 South Ocean Drive, No. 934

Hollywood, Florida 33019

Steven A. Grigas, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Building 3

Tallahassee, Florida 32317-4229

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000009

Orders for Case No: 97-000009