STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEN ALLAN NIEBRUGGE, )

)

Petitioner, )

)

vs. ) Case No. 01-3620

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on December 4, 2001, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ken Allan Niebrugge, pro se

4785 Barkley Circle No. 22 Fort Myers, Florida 33907

For Respondent: Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.

PRELIMINARY STATEMENT

Petitioner sat for the chiropractic licensure examination in May 2001. In an examination grade report mailed on June 28, 2001, the Department of Health ("Department") notified Petitioner that he failed the Physical Diagnosis section of the examination. The minimum passing score for the Physical Diagnosis is 75; Petitioner's score was 70.

On August 29, 2001, Petitioner filed with the Department written notice that he disputed the scoring of his examination. The notice requested a formal hearing at the Division of Administrative Hearings. On September 13, 2001, the Department forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge and the conduct of a formal administrative hearing.

Petitioner initially challenged the Department's scoring of Tasks 3, 4, 5, 17, 18, 24, and 26. Prior to the hearing, Petitioner withdrew his challenge to the scoring of Tasks 17 and 24, and the Department agreed to give Petitioner full credit for his response to Task 26. This action by the Department raised Petitioner's score on the Physical Diagnosis section to 71, still short of a passing score. Thus, the hearing proceeded and evidence was taken as to Petitioner's challenge to the scoring of Tasks 3, 4, 5, and 18.

At the final hearing, Petitioner testified on his own behalf. Petitioner's Exhibits 1 and 2 were accepted into evidence.

Respondent offered the testimony of Linda M. Dean, Ph.D., the Department psychometrician assigned to the chiropractic licensure examination, and Robert Densmore, D.C., an expert in chiropractic medicine. Respondent's Exhibits 1 through 12 were admitted into evidence. Respondent's Exhibits 3, 4, 5, and 8 were ordered sealed pursuant to Section 456.014, Florida Statutes. A separate order sealing those exhibits and the transcript of the proceeding will be entered simultaneously with this Recommended Order.

Tasks 3, 4, 5, and 18 will not be set forth verbatim in this Recommended Order because the examination questions are confidential.

A Transcript of the proceedings was filed on December 21, 2001. The parties agreed to file proposed recommended orders on or before January 30, 2002. Each party timely filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops,

   administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes.

   Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order.

2. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination.

3. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion),

   (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination.

4. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory

   reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views.

5. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores.

1. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code.

2. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are

   uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session.

3. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf.

4. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests.

5. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task

   4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf.

6. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection.

7. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4.

8. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present.

9. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis.

   Dr. Densmore admitted that many doctors order these tests as a

   general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease.

10. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis.

11. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing.

12. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back.

13. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more

    specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur."

14. The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur.

15. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5.

16. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur.

17. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the

    examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5.

18. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one.

19. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen.

20. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine.

21. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response,

    intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand.

22. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine.

23. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing.

24. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed.

25. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received.

    Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of

    70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence.

26. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section.

27. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.

    CONCLUSIONS OF LAW

    
    

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

29. The Department is authorized to administer licensure examinations for chiropractors pursuant to Section 455.574, Florida Statues. Any person desiring to practice chiropractic medicine in Florida is required to pass the licensure examination developed by the Department to test an applicant's competency as a chiropractor. Section 460.406, Florida Statutes.

30. Petitioner has the burden to establish by a preponderance of the evidence that his examination scoring was flawed and that the Department acted arbitrarily or capriciously or with an abuse of discretion. See Harac v. Department of Business and Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3rd DCA 1986). Petitioner did not meet that burden in this proceeding.

31. The examination questions and answers are confidential pursuant to Section 456.014, Florida Statutes. A separate order sealing the transcript and Respondent's Exhibits 3, 4, 5, and 8 will be entered simultaneously with the entry of this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001.

DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 18th day of February, 2002.

COPIES FURNISHED:

Ken Allan Niebrugge

4785 Barkley Circle No. 22 Fort Myers, Florida 33907

Cherry A. Shaw, Esquire Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 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: 01-003620

Orders for Case No: 01-003620