STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOELLEN L. DREYFUS, )

)

Petitioner, )

)

vs. ) Case No. 00-1419

) DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 25, 2000, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: E. Renee Alsobrook, Esquire

Post Office Box 37094 Tallahassee, Florida 32315-7094

For Respondent: Cherry A. Shaw, Esquire

Department of Health 4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, Joellen L. Dreyfus, should receive a passing grade on the May 1998 Chiropractic Board Examination.

PRELIMINARY STATEMENT

Petitioner filed her examination challenge on March 15, 2000. The challenge was referred to the Division of Administrative Hearings (DOAH) on April 3, 2000. After a request to extend the time to respond to the Initial Order was granted, a Notice of Hearing was issued on June 5, 2000, scheduling final hearing for August 25, 2000, in Tallahassee, Florida.

A Joint Response to Order of Pre-Hearing Instructions was filed on August 16, 2000. Included was a stipulation that Petitioner should have received a passing grade on the Technique section of the examination, leaving a failing grade in the Physical Diagnosis section of the examination.

At the outset of final hearing, a dispute arose as to which Physical Diagnosis questions Petitioner should be allowed to challenge. Petitioner sought to challenge Questions 21, 23, and 24; Respondent (the Department of Health) sought to limit the challenge to Questions 23 and 24 on the ground that any challenge to Question 21 was untimely.

The subject matter of the examination challenge in this case included the subject matter of Questions 23 and 24 but not the subject matter of Question 21. There was no record indication of any challenge to Question 21 (on use of X-rays) prior to final hearing. As late as the filing of the Joint Response to Order of Pre-Hearing Instructions, there was no indication of a challenge to Question 21. Nonetheless, Petitioner asserted that she still

could challenge Question 21 because the challenge was not discovered until the Petitioner's attorney's prehearing examination review on August 17, 2000. Petitioner first gave notice of her intention to challenge Question 21 by letter sent by fax late in the afternoon on August 21, 2000. Under those circumstances, it was decided to proceed on Questions 23 and 24 and to treat the request to consider Question 21 as a request to re-open final hearing for additional evidence on Question 21.

Ruling on the request may be found at the end of this Preliminary Statement.

Petitioner testified in her own behalf and called two expert witnesses in her case-in-chief. She also had Petitioner's Exhibits 1 and 2 admitted in evidence. Respondent called four witnesses (including two experts) and had Respondent's Exhibits 1-9, 11, and 13-16, 19-26, and 28 admitted in evidence. (Respondent's Exhibits 3 through 6 were confidential records admitted under seal.)

After presentation of evidence, Respondent requested a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders (PROs). Counsel for Petitioner then asked to be allowed to retain Petitioner's hearing copies of Respondent's Exhibits 4 and 5 for purposes of preparing Petitioner's PRO. Respondent objected, ruling was reserved, and final hearing was concluded, subject to ruling on the pending motions.

On August 31, 2000, an Order on Respondent's Exhibits 4 and

5 was entered, allowing a further in camera consideration of the exhibits.

The Transcript was filed on September 14, 2000. The further in camera consideration of the exhibits took place on

September 20, 2000. On September 25, 2000, both parties filed PROs, which have been considered.

Petitioner's request to re-open the evidence is denied.

Petitioner failed to establish that Respondent was to blame for delaying the prehearing examination review. In addition, Petitioner failed to file any motion to require an earlier prehearing examination review. Under those circumstances, Petitioner waived any challenge Question 21. Put another way, Petitioner's late challenge to Question 21 was untimely. See Recommended Order of Dismissal, Yates v. Dept. of Bus. Reg., Board of Prof. Land Surveyors, 1997 WL 1052912 (DOAH 1997), and Final Order Adopting Recommended Order entered June 19, 1997.

To the extent possible, this Recommended Order has been written in a manner so as to preserve the confidentiality of examination questions and answers.

FINDINGS OF FACT

1. Petitioner, Joellen L. Dreyfus, applied for examination and licensure as a chiropractor and arranged to take the May 1998 Chiropractic Board Examination. She received passing grades on two sections of the examination (Florida Laws and Rules, and X-

   ray Interpretation) but failing grades in Physical Diagnosis and Technique. During the pendency of this proceeding, it was stipulated that Petitioner should receive a passing grade in Technique, leaving only a failing grade of 74 (with 75 passing) in Physical Diagnosis. Since 75 was passing, Petitioner would pass the examination either if she is given credit for an additional answer, or if a question for which she did not get credit is eliminated.

2. On July 24, 1998, Petitioner telephoned Respondent, the Department of Health, to request that a "review form for Chiropractic" be sent to her address in Dunedin, Florida. On July 30, 1998, Petitioner requested a post-examination review, which provided the same address in Dunedin, Florida. Respondent arranged for the review on September 10, 1998, and attempted to notify Petitioner of the review by letter dated August 21 and postmarked August 25, 1998, and addressed to Petitioner at her address in Dunedin, Florida, certified mail, return receipt requested.

3. Not long after asking for the review, Petitioner moved to Georgia. Petitioner gave the United States Postal Service (USPS) a forwarding address in Cartersville, Georgia, but never notified Respondent of a change of address. When the USPS received Respondent's letter to Petitioner, it placed a postal stamp dated August 30, 1998, on the envelope, bearing the Cartersville address and a request addressed to Petitioner to

   notify the sender (Respondent) of Petitioner's Cartersville address.

4. The USPS attempted to deliver the letter to Petitioner at the Cartersville, Georgia, address on September 2 and 7, 1998, but could not and had to leave notices for Petitioner to claim the letter. When Petitioner did not claim the letter, the Postal Service "X"-ed out the postal stamp with the Cartersville address and returned the letter to Respondent on September 17, 1998, with a notation that Petitioner had not claimed the letter. The USPS "X"-ed out the postal stamp to signify that the Cartersville address was not a good address. Respondent received the returned letter on September 23, 1998.

5. Because the review notice could not be delivered, Petitioner never received notice. Not having received notice, Petitioner did not appear at the scheduled examination review and was recorded as a "no-show" even though the post office had not yet delivered a return receipt to Respondent.

6. Ten to fifteen percent of the 200 examination reviews a year do not "show." Respondent treats them the same way as it treated Petitioner in this case, which is the same way Respondent treats examination "no-shows." It is not Respondent's practice to attempt to contact either examination or review "no-shows."

7. Petitioner did not re-contact Respondent until August 1999. Initially, Petitioner applied to re-take the Chiropractic Examination in November 1999 but withdrew her application on

   September 27, 1999, when she realized that her national board part I score expired on December 31, 1998, and her national board scores for parts II and III were going to expire on December 31, 1999. On December 31, 1999, Petitioner attempted to "lock-in" her national board scores but was told that it was too late.

8. When Petitioner realized that there was no way to preserve her national board scores, she renewed her request to review the May 1998 examination. With the assistance of her new attorney, Petitioner persuaded Respondent to agree to an examination review, which was scheduled for February 2000.

9. In its proposed recommended order (PRO), Respondent contended that examination review in February 2000 was "for the sole purpose of preparing for the next examination." (Emphasis in PRO.) Respondent cited no evidence to support this contention, and none is found in the record. Petitioner's examination challenge was filed on March 15, 1998.

10. Respondent also contended in its PRO that Petitioner should be barred from challenging the May 1998 Chiropractic Board Examination under the doctrine of laches. But not only was laches not raised as a defense in the Joint Response to Order of Pre-Hearing Instructions or at any time prior to Respondent's PRO, there was no evidence that the delay in the examination challenge made it difficult for Respondent to defend against the challenge.

11. Petitioner's examination challenge blamed Respondent for the delay in reviewing the May 1998 examination and for the expiration of her national board scores. It also complained of alleged lack of anonymity and erasure marks on the answer key as well as on "the visceral portion of physical diagnosis." It then challenged two specific physiotherapy questions: one dealing with ultrasound (Question 23); and another dealing with cryotherapy (Question 24). As to the ultrasound, Petitioner essentially complained that she should not have been tested on ultrasound because, as a "straight" chiropractor (as opposed to a "mixer"), Petitioner did not use ultrasound in her practice and did not study it in school. As to the cryotherapy, Petitioner also complained that the answer she gave on the examination was correct and should have received credit. Finally, Petitioner challenged the Technique section of the examination (which Respondent eventually conceded).

12. Like Question 23, Question 24 was worth 5 points on the 100-point grading scale for the Physical Diagnosis section of the examination. Question 24 consisted of two parts, A and B, each worth 2.5 points.

13. Question 24 dealt with the use of cryotherapy. Part A required a demonstration, which Petitioner clearly failed. (Petitioner did not challenge part A.) After Petitioner attempted her demonstration, one of the examiners asked a question that approximated but was somewhat different from the

    actual first subpart of Question 24B. It does not appear from the evidence that Petitioner herself read the first subpart of Question 24B; she clearly did not read the question aloud. But it does not appear that Petitioner was confused by the way in which the examiner asked the first subpart of Question 24B.

14. Petitioner's answer to the first subpart of Question 24B varied from (was more conservative than) the accepted answer for time and length of cryotherapy treatment using ice packs. Petitioner testified that she answered conservatively because the hypothetical patient was 60 years old.

15. Petitioner's proposed, more conservative treatment may be appropriate for 60 year-olds with diabetes, fragile skin and blood vessels, or other hypersensitivity to cold due to aging. But for most other 60 year-olds, normal cryotherapy protocol is not contraindicated.

16. Question 24 was silent as to whether cryotherapy was contraindicated in the hypothetical patient. During the examination, Petitioner did not ask for clarification as to whether cryotherapy was contraindicated. It could not be ascertained from the videotape of the examination whether Petitioner's answer to the first subpart of Question 24B was adjusted to take into account possible contraindications due to age of the hypothetical patient.

17. The authoritative source for the accepted answer (Applied Physiotherapy, Second Edition, by Jaskoviak and Schafer,

    p. 249) stated:

    
    

    Cold packs are usually applied for 20-30 minutes when maximum effect is to be achieved. After 30 minutes, the packs lose their necessary degree of therapeutic coolness and must be returned to the refrigerated tank.

    
    

    The point of the authoritative source appears to be that cold packs do not remain cold enough for maximum therapeutic effect for longer than 30 minutes, not that cold packs must be used for

    30 minutes for maximum therapeutic effect. It also does not rule out more conservative treatment for a 60 year-old, even assuming no contraindications.

18. Respondent's expert testified persuasively that the authoritative source supported and bolstered his independent knowledge from personal education and extensive experience that the accepted answer was correct, not only generally but also in the case of a 60 year-old female with no contraindications. Petitioner's two experts testified to the contrary. But one had virtually no education, training, and experience in physiotherapy, and the other's education, training, and experience in physiotherapy was far less than Respondent's expert.

19. When Petitioner finished her answer to the first subpart of Question 24B, one of the examiners asked a question that approximated but differed significantly from the actual

    second subpart of Question 24B. The second subpart of Question 24B asked for a listing of physical sensations related to cryotherapy, in sequential order. But the examiner did not initially ask for them in sequential order. The evidence was clear that Petitioner herself did not reread the second subpart of Question 24B; again, she clearly did not read the question aloud.

20. Petitioner began to answer the examiner's question, naming second and fourth sensations in the sequence. As Petitioner paused in her response, one of the examiners told Petitioner that there were four sensations and that Petitioner was required to name all of them in sequential order. The examiner then repeated the sensation mentioned by Petitioner as the first in the sequence. Petitioner continued her response by repeating only the second sensation in the sequence, adding the third sensation in the sequence, and not repeating the fourth sensation in the sequence. Petitioner never named the first sensation in the sequence. At the end of her answer to the second subpart of Question 24B, she commented: "I'm sorry. That's the best I can do. I guess this is why I should have taken physiotherapy."

21. Petitioner argued that the examiner(s) violated the Examiner Manual for the Chiropractic Examination May 1998 (the Examiner Manual) and, in so doing, may have misled Petitioner into thinking that the first sensation mentioned by Petitioner in

    her answer to the second subpart to Question 24B was the first sensation in the sequence and may have caused Petitioner to omit the actual first sensation in the sequence.

22. The Examiner Manual stated in pertinent part:

    
    

    During the examination

    If necessary, remind the candidate to read the questions out loud for the video.

    Do not read the questions to the candidate or ask the candidate for additional information. (Emphasis in original.)

    
    

    We have agreed on the following solutions to possible problems:

    * * *

    The answer is incomplete: ask for a complete answer.

    * * * Avoid Giving Clues

    DO NOT ask any additional questions, and DO NOT provide any feedback about the correctness of the answers. When the candidate gives a wrong answer, do not ask the candidate to answer it again. You may think you are doing the candidate a favor, but most of the time candidates do not think that way.

23. While the examiner(s) may have misled Petitioner as to the first sensation in the sequence, Petitioner also never gave the last three sensations in proper order. The evidence did not prove that the examiner(s) misled Petitioner in regard to those sensations. In addition, Petitioner more or less conceded to the examiners that she was guessing throughout her attempted answers to Questions 23 and 24. She told the examiners that she had no education in or knowledge of cryotherapy and did not use it in her practice. While correct guesses count as correct answers,

    Petitioner's admitted guessing supports the finding that she did not answer the second subpart to Question 24B correctly.

24. Petitioner also argued that she should be given partial credit for her answer to the second subpart of Question 24B. But while partial credit was given for a completely correct answer to either subpart of Question 24B, partial credit was not given for a partially correct answer to a subpart. Petitioner did not prove that the it was arbitrary or unreasonable not to give partial credit for a partially correct answer to a subpart. To give Petitioner partial credit for a partially correct answer to a subpart of Question 24B would give Petitioner an unfair advantage over other candidates.

25. Question 23 also was worth 5 points on a 100-point grading scale for the Physical Diagnosis section of the examination. Petitioner clearly did not answer Question 23 on the use of ultrasound as physiotherapy.

26. Petitioner asserted that it was unfair and improper for Respondent to ask questions on physiotherapy on the May 1998 Chiropractic Board Examination because she had no education, training, or experience in it. Petitioner learned "straight" chiropractic at Life University in Georgia and practiced "straight" chiropractic for 12 years in Georgia. "Straight" chiropractic is limited to identification and correction of skeletal subluxations by direct manipulation. It does not use physiotherapy techniques, such as ultrasound and cryotherapy

    (icing). But, contrary to Petitioner's position in this case, it is found that Petitioner did have the opportunity to study physiotherapy during and after college, but she chose not to.

27. Petitioner also asserted that Respondent gave her inadequate notice that physiotherapy questions would be on the May 1998 Chiropractic Board Examination. The Candidate Information Booklet for the May 1998 Chiropractic Licensure and Certification Examination (the Candidate Information Booklet) advised candidates approximately what areas would be covered in the Physical Diagnosis section of the examination, namely: Orthopedic and Neurological 30-35%; Diagnostic Imaging 20-25%; Case History and Physical 15-20%; Laboratory 5-10%; Diagnosis 15- 20%; and Clinical Judgment 5-10%. But it also included the following statement:

    Based on the Board of Chiropractic's approval of a proposal made by the Department of Business and Professional Regulation, starting with the May 1998 examination, the Physical Diagnosis portion of the examination will include questions relating to the practice of Physiotherapy. The inclusion of these questions does not alter the percentage of areas to be tested on the Physical Diagnosis portion [of] the examination, as stated in Chapter 64B2 of the Board Rules.

28. The only other evidence as to whether inclusion of the physiotherapy questions (i.e., Questions 23 and 24) caused the percentage of areas to be tested to depart from the approximations in the Candidate booklet or the percentages stated in the pertinent Board rule was the testimony of Respondent's

    psychometric expert. It was her general understanding that inclusion of the physiotherapy questions did not alter the percentages because: "They are covered all through the exam I believe." But she conceded that her expertise does not extend to examination content, and she could not testify specifically as to how inclusion of the physiotherapy questions affected the percentages in the Candidate Information Booklet and in Chapter 64B2 of the Board Rules. No "content expert" addressed the issue.

29. It is found that the only place where physiotherapy possibly might fit under the Candidate Information Booklet's description of Physical Diagnosis would be under "clinical judgment." If the physiotherapy questions were assigned to "clinical judgment" under Physical Diagnosis, the ten points assigned to those questions would have to be added to the six points assigned to "clinical judgment" on other parts of the Physical Diagnosis examination, for a total of 16 points, which exceeds the maximum percentage in the Candidate Information Booklet. (As reflected in the Conclusion of Law 42, infra, the same holds true for the percentages stated in Chapter 64B2 of the Board Rules.)

    CONCLUSIONS OF LAW

    
    

30. At final hearing, Petitioner had the burden to prove by a preponderance of the evidence that she passed the Physical Diagnosis section of the May 1998 Chiropractic Board Examination.

    See Harac v. Dept. of Prof. Reg., 484 So. 2d 1333 (Fla. 3d DCA 1986); Dept. of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); 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). Petitioner attempted to do this in part by proving that her answer to the first subpart of Question 24B was correct.

31. As reflected in the Findings of Fact, Petitioner failed to meet her burden of proof in that regard. Respondent's "judgment as to the proper grading of such examinations will not be disturbed by the courts, unless clearly shown to be arbitrary or devoid of logic and reason." State ex rel. Topp v. Board of Electrical Examiners, supra, at 586. "Admittedly there will be questions on examinations of this type for which the amount of credit to be given various answers may differ in the minds of reasonable men. That such condition exists is not alone sufficient cause upon which to bottom an alleged abuse of discretion." Id.

32. Petitioner also attempted to claim partial credit for her answer to the second subpart of Question 24B, but she did not prove that it was arbitrary or unreasonable for Respondent to disallow partial credit for subparts of Question 24B. To the contrary, regulatory licensing agencies must "conduct their examinations fairly and uniformly in accordance with lawful authority and their own rules and regulations . . .." Id.

33. Finally, Petitioner argued that she passed the Physical Diagnosis section of the May 1998 Chiropractic Board Examination because Questions 23 and 24 must be eliminated.

34. Petitioner first argues that Questions 23 and 24 (the physiotherapy questions) should be eliminated because their inclusion violated Section 460.406(1)(c), Florida Statutes (1997), by resulting in the denial of licensure to Petitioner "solely because the applicant is a graduate of a chiropractic college that subscribes to one philosophy of chiropractic medicine as distinguished from another." But it is concluded that the inclusion of the physiotherapy questions did not violate Section 460.406(1)(c). (As pointed out by Respondent, Section 460.406(1) referred to denial of an application to take the chiropractic examination; it does not apply to administration of the examination.)

35. Petitioner next argues that inclusion of the physiotherapy questions violated several other statutes governing chiropractic medicine in Florida at the time of the examination. Section 460.403(8), Florida Statutes (1997), provided in pertinent part:

    1. "Practice of chiropractic" means a noncombative principle and practice consisting of the science, philosophy, and art of the adjustment, manipulation, and treatment of the human body in which vertebral subluxations and other malpositioned articulations and structures that are interfering with the normal generation, transmission, and expression of nerve impulse between the brain, organs, and

       tissue cells of the body, thereby causing disease, are adjusted, manipulated, or treated, thus restoring the normal flow of nerve impulse which produces normal function and consequent health by chiropractic physicians using specific chiropractic adjustment or manipulation techniques taught in chiropractic colleges accredited by the Council on Chiropractic Education. No person other than a licensed chiropractic physician may render chiropractic services, chiropractic adjustments, or chiropractic manipulations.

    2. Any chiropractic physician who has

       complied with the provisions of this chapter may examine, analyze, and diagnose the human living body and its diseases by the use of any physical, chemical, electrical, or thermal method; use the X ray for diagnosing; phlebotomize; and use any other general method of examination for diagnosis and analysis taught in any school of chiropractic.

    3. 1. Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical, or natural methods; by the use of physical means or physiotherapy, including light, heat, water, or exercise; by the use of acupuncture; or by the administration of foods, food concentrates, food extracts, and items for which a prescription is not required and may apply first aid and hygiene, but chiropractic physicians are expressly prohibited from prescribing or administering to any person any legend drug except as authorized under subparagraph 2., from performing any surgery except as stated herein, or from practicing obstetrics.

       * * *

       (f) Any chiropractic physician who has complied with the provisions of this chapter is authorized to analyze and diagnose abnormal bodily functions and to adjust the physical representative of the primary cause of disease as is herein defined and provided.

       . . . A chiropractic physician may not use acupuncture until certified by the board.

       (Emphasis added.)

36. Section 460.401, Florida Statutes (1997), stated:

    
    

    The sole legislative purpose for enacting this chapter is to ensure that every chiropractic physician practicing in this state meets minimum requirements for safe practice. It is the legislative intent that chiropractic physicians who fall below minimum competency or who otherwise present a danger to the public health be prohibited from practicing in this state.

37. Section 455.517, Florida Statutes (1997), stated in pertinent part:

    1. It is the intent of the Legislature that persons desiring to engage in any lawful profession regulated by the department shall be entitled to do so as a matter of right if otherwise qualified.

    2. The Legislature further believes that such professions shall be regulated only for the preservation of the health, safety, and welfare of the public under the police powers of the state.

    * * *

    (4) No board, nor the department, shall create unreasonably restrictive and extraordinary standards that deter qualified persons from entering the various professions.

    
    

38. Petitioner argues essentially that Section 460.403(8) made physiotherapy optional, and Sections 460.401 and 455.517 prohibited testing optional practice areas. This argument is rejected. Section 455.574(1)(a), Florida Statutes (1997), provided in pertinent part: "The department shall certify that examinations developed and approved by the department adequately and reliably measure an applicant's ability to practice the profession regulated by the department." Since physiotherapy and other optional practice areas were regulated by Respondent,

    Respondent was authorized to administer examinations covering those optional areas, subject to other pertinent statutes and rules. Cf. Buxbaum v. Dept. of Prof. Reg., 13 F.A.L.R. 2029, 1991 WL 832841.

39. But Petitioner also argues that other pertinent statutes and rules prohibited Respondent from testing physiotherapy on the May 1998 Chiropractic Board Examination.

40. Section 455.574(1), Florida Statutes (1997), also provided in pertinent part:

    1. . . . After an examination developed or approved by the department has been administered, the board, or the department when there is no board, may reject any question which does not reliably measure the general areas of competency specified in the rules of the board. . . .

    2. For each examination developed by the department or contracted vendor, to the extent not otherwise specified by statute, the board, or the department when there is no board, shall by rule specify the general areas of competency to be covered by each examination, the relative weight to be assigned in grading each area tested, and the score necessary to achieve a passing grade, and fees, where applicable, to cover the actual cost for any purchase, development, and administration of required examinations.

       . . . If a practical examination is deemed to be necessary, the rules shall specify the criteria by which examiners are to be selected, the grading criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade.

41. At the time of the May 1998 Chiropractic Board Examination, Florida Administrative Code Rule 64B2-11.003 set out the subject areas to be tested for competency on Respondent's

    practical examination in chiropractic. They included: X-ray interpretation; Technique; Physical Diagnosis; and Florida laws and rules. As to Physical Diagnosis, paragraph (1)(c) of the rule stated:

    Physical diagnosis, which may include any of the following: case history, chiropractic examination, general physical examination, orthopedic examination, neurological examination, X-ray technique and diagnosis, laboratory technique and diagnosis, nutrition, differential diagnosis, and clinical judgment according to the following approximate weights:

    
    

    Orthopedic and neurological	30-35%
    Diagnostic imaging	20-25%
    Case history and physical	15-20%
    Laboratory	5-10%
    Diagnosis	15-20%
    Clinical judgment	5-10%

    
    

    The only place where physiotherapy possibly might fit under the rule's description of Physical Diagnosis would be under "clinical judgment."

42. If the physiotherapy questions were assigned to "clinical judgment" under Physical Diagnosis, the ten points assigned to those questions would have to be added to the six points assigned to "clinical judgment" on other parts of the Physical Diagnosis examination, for a total of 16 points, which exceeds the maximum percentage in the rule (and in the Candidate Information Booklet for the May 1998 Chiropractic Board Examination, as reflected in Finding 29, supra.)

43. It is concluded that Questions 23 and 24 must be rejected because, if they are included, the Physical Diagnosis examination would not "reliably measure the general areas of competency specified in the rules of the board." (Emphasis added.) Section 455.574(1)(a), Florida Statutes (1997). Regulatory licensing agencies must "conduct their examinations fairly and uniformly in accordance with lawful authority and their own rules and regulations . . .." See State ex rel. Topp v. Board of Electrical Examiners, supra, at 586. With Questions

    23 and 24 eliminated, Petitioner passed the May 1998 Chiropractic Board Examination.

44. In its PRO, Respondent sought to bar Petitioner's examination challenge on the ground of laches. The defense of laches was available to Respondent in this case. See Devine v. Dept. of Prof. Reg., 451 So. 2d 994 (Fla. 1st DCA 1984). But one of the required elements of the defense of laches is injury or prejudice to the defendant. Id. at 996. Unlike in Devine, where examination records had been destroyed in the normal course of business during the passage of time prior to the examination challenge, there was no evidence of missing examination records or any other injury or prejudice to Respondent as a result of passage of time in this case.

45. Respondent seems to argue that injury or prejudice resulted because Petitioner's examination review in February 2000 was untimely under Florida Administrative Code Rule 64B-1.0013.

    But an examination review was not a prerequisite to Petitioner's examination challenge, and the timing of the review had no effect on Respondent's ability to respond to Petitioner's examination challenge. While Respondent might have been able to deny the request for examination review as untimely, Respondent cannot use the doctrine of laches to bar the examination challenge on the basis of an untimely examination review.

46. Even if the evidence had proved a meritorious defense of laches, Respondent waived the defense in this case by not raising it in the Joint Response to Order of Pre-Hearing Instructions or at any time prior to its proposed recommended order. See State ex rel. Glasser v. J.M. Pepper, supra, at 384 ("Having agreed at the pre-trial conference that the only issue to be tried was whether appellant passed the examination taken by him, and whether the Board capriciously and arbitrarily failed to give him a passing grade but on the contrary gave him a failing grade, appellant precluded himself from injecting into the trial any separate or different issues other than those agreed upon at the pretrial conference.") To allow Respondent to add the defense of laches through its PRO would violate Petitioner's right to procedural due process of law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent, the Department of Health, enter a final order that Petitioner passed the May 1998 Chiropractic Board Examination.

DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 10th day of October, 2000.

COPIES FURNISHED:

E. Renee Alsobrook, Esquire Post Office Box 37094

Tallahassee, Florida 32315-7094

Cherry A. Shaw, Esquire Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-0950

Joe Baker, Jr., Executive Director Board of Chiropractic

Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary Department of Health

4052 Bald Cypress Way 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: 00-001419

Orders for Case No: 00-001419