STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAUL A. GONZALEZ, )

)

Petitioner, )

)

vs. ) Case No. 98-4469

) DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 1, 1999, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Raul A. Gonzalez, pro se

446 Southwest 191st Terrace Pembroke Pines, Florida 33029

For Respondent: Anne Marie Frazee, Esquire

Department of Health Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner is entitled to receive a passing grade on the Physician Assistant licensure examination administered in June of 1998.

PRELIMINARY STATEMENT

In June of 1998, the Petitioner took the Physician Assistant licensure examination. By means of an examination grade report dated August 20, 1998, the Petitioner was notified that he had failed all three portions of the licensure examination. The Petitioner timely submitted a request for a hearing to contest the grading of the examination. In due course, the matter was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. By notice issued November 5, 1998, the case was scheduled for final hearing on February 1, 1999.

At the final hearing the Petitioner testified on his own behalf. The Petitioner did not call any additional witnesses. The Petitioner did not offer any exhibits. The Respondent presented the testimony of one witness, Dr. Eunice Filar. The Respondent also offered 80 exhibits, all of which were received in evidence.

At the conclusion of the hearing, the parties were allowed

10 days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript of the final hearing was filed with the Division of Administrative Hearings on March 11, 1999. On March 19, 1999, both parties filed their respective proposed recommended orders.1

FINDINGS OF FACT

1. The Petitioner, Raul A. Gonzalez, sat for the Physician Assistant licensure examination administered in June of 1998.

   The Physician Assistant licensure examination is made up of three parts: (1) a general written examination; (2) a surgical specialty examination; and (3) a primary care specialty examination. In order to pass the overall examination and be eligible for licensure, an applicant must pass the general written examination and must also pass at least one of the two specialty examinations. The general written examination and both of the specialty examinations are all multiple-choice examinations.

2. A scaled score of 600 is required to pass each of the three examinations. The following grades were assigned to the Petitioner's examinations: 595.50 on the primary care specialty examination; 554.50 on the surgery specialty examination; and

   591.90 on the general written examination. On the basis of these grades, the Petitioner was advised that he had failed all three portions of the examination.

3. In order to receive a passing grade on the overall examination, the Petitioner needs credit for correct answers to three additional questions on the general written portion of the examination, and either (a) credit for a correct answer to one additional question on the primary care specialty examination, or

   (b) credit for correct answers to ten additional questions on the surgery specialty examination.

4. The Petitioner is entitled to credit for a correct answer to one additional question on the primary care specialty examination. With credit for the one additional correct answer, the Petitioner is entitled to a passing grade on the primary care specialty examination.2

5. The subject licensure examination was prepared and conducted in accordance with the standard testing and security procedures of the Department of Health. The post-examination review of the subject licensure examination was conducted in accordance with the standard examination review procedures of the Department of Health. There is no competent substantial evidence in the record of this case of any material defects or deficiencies in those procedures. There is no competent substantial evidence of any material departure from established procedures during the course of the preparation of the subject licensure examination, the administration of the examination, the grading of the examination, or the post-examination review of the examination.

6. Except as noted above in paragraph 4, there is no competent substantial evidence in the record of this case of any error or omission in the scoring and grading of the Petitioner's answers on the subject licensure examination.

   CONCLUSIONS OF LAW

   
   

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

8. In a case of this nature, the party seeking licensure bears the burden of demonstrating entitlement to the license sought. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). If the proof is insufficient to demonstrate entitlement to the license, the license must be denied.

9. By stipulation of the Respondent, the Petitioner is entitled to a passing grade on the primary care specialty examination.

10. The Petitioner has failed to prove that the Respondent misgraded either of the other two portions of the subject examination.

11. The evidence in this case is insufficient to support the Petitioner's arguments about the validity of some of the questions on the subject examination.3

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the Petitioner is entitled to a passing grade on the primary care specialty examination; that the Petitioner failed the other two

portions of the examination; and that the Petitioner is not entitled to the license he seeks.

DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1999.

ENDNOTES

1/ The Petitioner's Proposed Recommended Order consists of a summary of his arguments and opinions regarding the quality of the examination questions and the examination review process. The Respondent's Proposed Recommended Order contains separately stated proposed findings of fact and proposed conclusions of law. Both documents have been carefully considered during the preparation of this Recommended Order.

2/ The findings in paragraph 4 are based on a stipulation by the Respondent during the course of the final hearing. Transcript page 43, lines 16 through 21.

3/ Even if it had been proved that numerous questions on the examination were invalid, the Respondent would not be entitled to licensure, but only to another opportunity to take the examination. Alvarez v. Department of Professional Regulation, 458 So. 2d 808 (Fla. 1st DCA 1984).

COPIES FURNISHED:

Raul A. Gonzalez

446 Southwest 191st Terrace Pembroke Pines, Florida 33029

Anne Marie Frazee, Esquire Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

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: 98-004469

Orders for Case No: 98-004469