STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NIGEL MOLINA, )

)

Petitioner, )

)

vs. ) Case No. 98-5232

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 2, 1999, in Miami, Florida, before Patricia Hart Malono, a duly-designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig A. Brand, Esquire

Brand & Fernandez, P.A. Ocean Optique Building Two Northeast 40th Street Fourth Floor

Miami, Florida 33137

For Respondent: Adam Keith Ehrlich, Esquire

Florida Department of Health General Counsel's Office

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703 STATEMENT OF THE ISSUE

Whether the Petitioner correctly answered questions 37, 44, 49, 83, and 206 of the General Written Exam portion of the

Physician Assistant Examination administered June 25 through

June 29, 1998.

PRELIMINARY STATEMENT

On June 25 through June 29, 1998, Nigel Molina sat for the Physician Assistant Examination. Mr. Molina was notified by the Department of Health 1/ ("Department") in a grade report dated August 20, 1998, that he had failed the Physician Assistant Examination. Specifically, Mr. Molina was advised in the grade report that he had received a passing score on the Primary Care Specialty Exam portion of the examination but had received failing scores on the Surgery Specialty Exam and the General Written Exam portions of the examination; the minimum passing score on these portions of the examination was 600 points, and Mr. Molina received scores of 581.80 points and 591.90 points, respectively.

Mr. Molina timely filed a petition disputing his score on the General Written Exam portion of the examination, and the Department forwarded Mr. Molina's letter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was held

December 2, 1999.

At the hearing, Mr. Molina presented the testimony of Jack Michel, M.D., and Petitioner's Exhibits 1 through 5 were offered

and received into evidence. 2/ The Department presented the testimony of Eunice Filar, Ph.D., a psychometrician employed by the Department, and of Clara Salazar-Vust, who was qualified as an expert in Physician Assisting. Respondent's Exhibits 1 through 16 were offered and received into evidence.

The transcript of the proceeding was filed with the Division of Administrative Hearings, and the Respondent timely filed proposed findings of fact and conclusions of law.

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. The Department of Health is the state agency responsible for licensing and regulating physician assistants. Sections 455.574 and 458.347(7), Florida Statutes (1997).

2. Mr. Molina sat for the Physician Assistant Examination administered on June 25 though 29, 1998. At the hearing, he disputed the Department's determination that the answers he gave to questions 37, 44, 49, 83, and 206 are incorrect.

3. The questions that comprise the General Written Exam portion of the June 1998 Physician Assistant Examination were objective, multiple-choice questions. The questions were drawn from a bank of questions written by licensed physician assistants trained by a psychometrician employed by the

   Department. Prior to being included in the question bank, these questions were reviewed and field-tested to ensure that they were good, fair questions that adequately and reliably tested the applicant's ability to practice as a physician assistant with reasonable skill and safety. After the test questions for the June 1998 examination were selected from the question bank, the questions were reviewed before the examination and after the examination.

4. The candidates taking the examination in June 1998 were directed in the instructions to the examination to choose the best answer from among four possible answers. This instruction was included in the examination booklet provided to each candidate, and the Department's normal procedure was to read the instructions aloud prior to the examination.

5. According to the Department, the correct answer to question 37 is "C"; Mr. Molina chose answer "B." Although question 37 is, on its face, clear and unambiguous, the reference book relied upon by the Department to support its answer, although an authoritative source for physician assistants, does not, in fact, unambiguously support the Department's answer. Question 37 refers to the "entire anterior chest," and the answer to the question can be derived from the "Rule of Nines." The "Rule of Nines" is a standard rule used in the practice of medicine and is illustrated in an authoritative

   text entitled Current Medical Diagnosis and Treatment, which

   
   

   contains a chart showing the outline of the human body divided into sections, each representing approximately nine percent of the body's surface area. The chart shows, in pertinent part, the trunk of the human body divided into the "posterior" upper trunk and the "posterior" lower trunk, with a line drawn somewhat above the umbilicus to illustrate the division of the trunk into the upper and lower portions. The Department's expert testified, without explanation, that the "entire anterior chest" is composed of both the upper and the lower trunk. This conclusion cannot be drawn from the chart contained in the reference book relied upon by the Department, and Mr. Molina's answer to question 37 is as reasonable as the answer the Department considers correct. Accordingly, Mr. Molina should receive credit for his answer to question 37.

6. According to the Department, the correct answer to question 44 is "D"; Mr. Molina chose answer "B." Question 44 asks for the "MOST likely diagnosis" based on the facts contained in the question. Question 44 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be derived from information included in the reference book entitled Ophthamology for the Primary Care Physician, which is considered an

   authoritative text by physician assistants. Mr. Molina should

   not receive credit for his answer to question 44 because the answer he gave is not the correct answer. 3/

7. According to the Department, the correct answer to question 49 is "A"; Mr. Molina chose answer "C." Question 49 asks for the "MOST likely" diagnosis based on the facts contained in the question. Question 49 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 1 of Harrison's Principles of Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 49 because the answer he gave is not the correct answer.

8. According to the Department, the correct answer to question 83 is "D"; Mr. Molina chose answer "C." Question 83 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume

   1 of Harrison's Principles of Internal Medicine, a reference

   
   

   book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to

   question 83 because the answer he gave is not the correct answer.

9. According to the Department, the correct answer to question 206 is "C"; Mr. Molina chose answer "A." Question 206 asks for the "MOST common" presentation of a precancerous lesion. Question 206 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 2 of Harrison's Principles of

   Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 206 because the answer he gave is not the correct answer.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

11. Section 458.347, Florida Statutes (1997), provides in pertinent part:

    (7) PHYSICIAN ASSISTANT CERTIFICATION.--

    1. Any person desiring to be certified as a physician assistant must apply to the department. The department shall issue a certificate to any person certified by the

       council as having met the following requirements:

       
       

       * * *

       
       

       1. Has satisfactorily passed a proficiency examination by an acceptable score established by the National Commission on Certification of Physician Assistants. If an applicant does not hold a current certificate issued by the National Commission on Certification of Physician Assistants and has not actively practiced as a physician assistant within the immediately preceding 4 years, the applicant must retake and successfully complete the entry-level examination of the National Commission on Certification of Physician Assistants to be eligible for certification.

       2. Has completed the application form and remitted an application fee not to exceed

          $300 as set by the boards. An application for certification made by a physician assistant must include:

          1. A certificate of completion of a physician assistant training program specified in subsection (6).

             
             

             * * *

             
             

    2. 1. Notwithstanding subparagraph (a)2. and sub-subparagraph (a)3.a., the department shall examine each applicant who the Board of Medicine certifies:

    1. Has completed the application form and remitted a nonrefundable application fee not to exceed $500 and an examination fee not to exceed $300, plus the actual cost to the department to provide the examination. . . .

    2. Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization who has not previously taken and failed the examination of the National Commission on Certification of Physician Assistants and who has been certified by the Board of Medicine as having met the requirements for licensure as a

    medical doctor by examination as set forth in s. 458.311(1), (3), (4), and (5), with

    the exception that the applicant is not required to have completed an approved residency of at least 1 year and the applicant is not required to have passed the licensing examination specified under s.

    458.311 or hold a valid, active certificate issued by the Educational Commission for Foreign Medical Graduates.

    
    

    * * *

    
    

    3. Notwithstanding any other provision of law, the examination specified pursuant to subparagraph 1. shall be administered by the department only five times. Applicants certified by the board for examination shall receive at least 6 months' notice of eligibility prior to the administration of the initial examination. Subsequent examinations shall be administered at intervals determined by the department after the reporting of the scores of the first examination. For the purposes of this paragraph, the department may develop, contract for the development of, purchase, or approve an examination, including a practical component, that adequately measures an applicant's ability to practice with reasonable skill and safety. The minimum passing score on the examination shall be established by the department, with the advice of the board. Those applicants failing to pass that examination or any subsequent examination shall receive notice of the administration of the next examination with the notice of scores following such examination. Any applicant who passes the examination and meets the requirements of this section shall be certified as a physician assistant with all rights defined thereby.

    
    

12. Mr. Molina has the burden of proving by a preponderance of the evidence that the Department's decision to

give him no credit for his answers to the challenged examination questions is arbitrary or capricious or constitutes an abuse of discretion. See State ex rel. Glasser v. J. M. Pepper, 155 So. 2d. 383 (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, Mr. Molina has failed to meet this burden with respect to questions 44, 49, 83, and 206.

However, based on the facts found herein, Mr. Molina has met his burden of proving that the Department's decision to give him no credit for his answer to question 37 is arbitrary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order

1. finding that Nigel Molina is entitled to credit for his answer to question 37 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998;

2. finding that Mr. Molina is not entitled to credit for his answers to questions 44, 49, 83, and 206 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998; and

3. recalculating Mr. Molina's score on the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998.

DONE AND ENTERED this 8th day of February, 2000, 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

(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 8th day of February, 2000.

ENDNOTES

1/ Although the responsibility for administering examinations to health care professionals was transferred to the Department of Health in 1997, Mr. Molina was notified of his examination status on a Department of Business and Professional Regulation form.

2/ Although Mr. Molina was sworn as a witness, he rested his case before he testified.

3/ The expert witness testifying on behalf of Mr. Molina asserted that he would not test ocular pressure because, in his experience, such a test could worsen an injury to the cornea.

He would immediately refer a patient presenting with an eye injury with the symptoms identified in question 44 to an ophthalmologist. While this may be true, it does not change the "most likely diagnosis" of the injury, given the facts presented in the question and the four available answers.

COPIES FURNISHED:

Adam Keith Ehrlich, Exam Attorney Office of the General Counsel Department of Health

2020 Capital Circle Southeast Bin A02

Tallahassee, Florida 32399-1703

Craig A. Brand, Esquire Brand & Fernandez, P.A. Ocean Optique Building Two Northeast 40th Street Fourth Floor

Miami, Florida 33137

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary Department of Health

2020 Capital Circle, Southeast Bin A00

Tallahassee, Florida 32399-1701

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: 98-005232

Orders for Case No: 98-005232