STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. BRYAN L. FOSS, )

)

Petitioner, )

)

vs. ) Case No. 97-1750

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 18, 1997, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was held via video teleconference, with the Petitioner and the Respondent appearing at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Bryan L. Foss, D.C., pro se

867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441

For Respondent: Kim A. Kellum, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building No. 3 Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.

PRELIMINARY STATEMENT

In an examination grade report dated December 20, 1996, Bryan L. Foss, D.C., was notified by the Florida Department of Business and Professional Regulation, Bureau of Testing, that he had failed the physical diagnosis portion of the chiropractic licensure examination administered in November, 1996. The minimum passing score for the examination was 75.00, and Dr. Foss scored 67.70. As a result, Dr. Foss failed the overall examination.

Dr. Foss timely submitted a request to the Agency for Health Care Administration ("Agency") for a hearing to contest the grading of his answers to Questions 6, 8, 15, and 27. The Agency forwarded the file to the Division of Administrative Hearings for assignment of an administrative law judge. By notice dated

April 30, 1997, the case was scheduled for hearing July 18, 1997.

At the start of the hearing, the Agency stated that it would give Dr. Foss full credit for his answer to Question 6, leaving his answers to Questions 8, 15, and 27 in dispute. The additional credit brings Dr. Foss's score on the examination to 71.7.

Dr. Foss testified in his own behalf at the hearing, and Petitioner's Exhibits 1, 2, and 3 were offered and received into evidence. The Agency presented the testimony of Bhaskar R. Dawadi, an expert in psychometrics, and Dr. John Gentile, an expert in chiropractics. Respondent's Exhibits 1 through 9 were

offered and received into evidence. The Agency requested in a Motion for In Camera Review of Evidence filed July 17, 1997, that Respondent's Exhibits 3, 4, and 5, consisting of the examination booklet, the examination videotape, and the examiners' sheets, respectively, be sealed pursuant to the confidentiality provisions in Section 455.229, Florida Statutes. The motion was granted at the hearing, and these exhibits shall be sealed.

The transcript of the proceeding was filed with the Division of Administrative Hearings on July 28, 1997, and the parties timely filed proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes.

2. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996.

3. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical

   examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner.

4. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade.

5. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical

   patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion.

6. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion.

7. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous.

   Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes (Supp. 1996).

9. Any person desiring to practice chiropractic in Florida is required to pass the licensure examination developed by the Agency to test an applicant's competency as a chiropractic physician. Sections 460.406 and 455.2173, Florida Statutes (1995).

10. Dr. Foss had the burden of proving by a preponderance of the evidence that the decision to award him no points for his

answers to Questions 8 and 27 and one-half of a point for his answer to Question 15 was arbitrary or capricious or constituted an abuse of discretion. See State ex rel. Glasser v. J. M. Pepper, 155 So. 2d 28 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners, 101 So. 2d 583 (Fla. 1st DCA 1958). Based on the facts found herein, Dr. Foss failed to meet that burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination.

DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 26th day of August, 1997.

COPIES FURNISHED:

Kim A. Kellum, Esquire Agency for Health Care

Administration

2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403

Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205

Deerfield Beach, Florida 33441

Sam Power, Agency Clerk Agency for Health Care

Administration

2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403

Jerome W. Hoffman, General Counsel Agency for Health Care

Administration 2727 Mahan Drive

Tallahassee, Florida 32308

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: 97-001750

Orders for Case No: 97-001750