STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARD BADALAMENTE, )

)

Petitioner, )

)

vs. ) Case No. 02-1106

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 23, 2002, in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leonard Badalamente, pro se

534 Wildwood Lane

Deerfield Beach, Florida 33442

For Respondent: Cherry A. Shaw, Esquire

Department of Health 4052 Bald Cypress Way BIN A02

Tallahassee, Florida 32399-1703 STATEMENT OF THE ISSUE

Whether the Petitioner should receive additional credit on the Physical Diagnosis portion of the Chiropractic Licensure Examination administered May 10 through 13, 2000.

PRELIMINARY STATEMENT

In an Examination Grade Report mailed July 12, 2000, Leonard Badalamente was notified by the Department of Health Testing Services ("Department") that he had attained a score of

69 points on the Physical Diagnosis portion of the Chiropractic Licensure Examination administered May 10 through 13, 2000. He was advised in the report that a passing score was 75 points and that he had, therefore, failed this portion of the licensure examination. On September 8, 2000, an Amended Examination Grade Report was issued by the Department showing that Dr. Badalamente had attained a score of 73 points on the Physical Diagnosis portion of the examination but had still failed this portion of the examination. Dr. Badalamente timely challenged the scoring on six parts of the Physical Diagnosis portion of the examination, specifically Tasks 3, 11, 14, 17, 21, and 25, and requested an administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge, and the final hearing was scheduled for May 23, 2002.

At the hearing, Dr. Badalamente testified on his own behalf; Petitioner's Exhibits 1 through 3 were offered and received into evidence. The Department presented the testimony of Linda M. Dean and Gary Weiss, D.C., accepted as experts in, respectively, the fields of psychometrics and chiropractic

medicine. Respondent's Exhibits 1 through 6, 8 through 10,

12 through 18, 21 through 23, 25, and 26 were offered and received into evidence; Respondent's Exhibits 3, 4, 4A, 5, 6, and 9 were received under seal pursuant to the requirements of Section 456.014(2), Florida Statutes.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on June 21, 2002. An extension of time for filing proposed recommended orders was granted, and the Department timely submitted proposed findings of fact and conclusions of law. Dr. Badalamente timely submitted a letter setting forth his proposed disposition of the case. Both of these post-hearing submittals have been considered in the preparation of this Recommended Order.

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 is responsible for developing, administering, and scoring examinations to test the competence of persons seeking licensure in Florida as chiropractors. Section 456.017(1)(a), Florida Statutes (2000).

2. Dr. Badalamente was a candidate for the chiropractic licensure examination administered May 10 through May 13, 2000. In an Examination Grade Report dated July 12, 2000, the

   Department advised Dr. Badalamente that he had failed the Physical Diagnosis portion of the examination, having attained a score of 69 points; a passing score on this portion of the examination is 75 points. Dr. Badalamente requested the opportunity to review the questions and his responses on this portion of the examination.

3. In preparation for the examination review, Department personnel reviewed Dr. Badalamente's examination results and computed the score on the examination by hand. The Department found that there was a discrepancy between the computer- generated score assigned to Dr. Badalamente's responses and the hand-calculated score. After further review, the Department determined that one of the examiners had darkened an incorrect "bubble" that resulted in Dr. Badalamente's receiving no credit on one of the tasks when it was clear from the scoring sheet that the examiner intended to give Dr. Badalamente full credit for his response on the task. The Department adjusted

   Dr. Badalamente's score on the Physical Diagnosis portion of the examination to 73 points.

4. Dr. Badalamente was advised of the amended score when he conducted the post-examination review of his responses, and an Amended Examination Grade Report was issued September 8, 2000, reflecting the corrected score.

   General information

   
   

5. The Chiropractic Licensure Examination, including the examination administered in May 2000, consists of three parts: X-rays, which is a written examination; Physical Diagnosis, which is an oral examination lasting 70 minutes; and Techniques, during which the candidates are required to demonstrate various techniques of chiropractic adjustment.

6. The Physical Diagnosis portion of the examination is a practical examination consisting of a number of "tasks." The examination candidate is given the complaints and other pertinent information about several hypothetical patients and is then required, among other things, to examine each "patient," to determine and administer appropriate tests, to answer questions, and, ultimately, to diagnose the patients' problems. The candidate performs several "tasks" related to each patient.

7. Approximately 30 days before the examination is administered, the Department sends to each examination candidate a Candidate Information Booklet. The booklet contains general information about the examination, including a description of the parts of the examination, sample questions, and a list of references that should be used in preparing for the examination; information about the policies governing administration of the examination; and a description of the scoring procedures, including information about the post-examination review process.

8. Two examiners score each candidate on the Physical Diagnosis portion of the examination, and a videotape of the candidate's responses is made.

9. The examiners are selected in accordance with criteria established by Department rule, and they receive training before they are permitted to score a candidate. Each examiner participates as a trainee in scoring 15 or more examination candidates, and the points assigned by the trainee examiner are compared with those assigned by the regular examiners to determine the accuracy of the trainee's scores.

10. The two examiners score the candidate separately, without communicating with one another, in accordance with written standards for each task. These standards are provided to the examiners prior to the examination, and the Department conducts a "standardization" before each administration of the examination. During the "standardization," each task on the Physical Diagnosis portion of the examination is discussed with the examiners, together with the correct answers. Examiners may ask questions, and the examination is discussed thoroughly. The goal of the "standardization" is for each examiner to assign a candidate the same score for the same task.

11. The two examiners on any given examination rarely assign the candidate different scores on the same task. When it does happen, usually one examiner has missed something that the

    candidate did or misunderstood something that the candidate said. When this occurs, it is classified as a scoring error, and the videotape is reviewed. If the videotape reveals that one examiner heard or saw something that the other examiner did not see or hear, the Department changes the "incorrect" score to reflect the candidate's response as recorded on the videotape, although the "incorrect" score is changed only when the error would change the candidate's overall grade on the examination.

12. The points assigned by the two examiners for each task on the Physical Diagnosis portion of the examination are averaged, and the sum of the average points for each task is the candidate's overall score on this portion of the examination.

13. The two examiner's scoring Dr. Badalamente's performance on the Physical Diagnosis portion of the examination met the criteria established in the Department's rules and participated in the required training and standardization sessions.

    Dr. Badalamente's challenge

    
    

14. After Dr. Badalamente's post-examination review of the scores assigned to his responses on the Physical Diagnosis portion of the examination, he challenged the scoring of his responses in Tasks 3, 11, 14, 17, 21, and 25.

15. The examiners grading Dr. Badalamente's performance on the Physical Diagnosis portion of the examination were

    Examiner 23, who has served as an examiner for the chiropractic licensure examination for approximately 10 years, and

    Examiner 62, who was serving as an examiner for the first time.

    
    

    Task 3

    
    

16. Task 3 dealt with physical examination procedures, and the candidate was required to perform and describe the physical abdominal examination of a patient and to state the significance of "rebound tenderness." The task was worth a total of four points, and full credit was to be given only if the candidate correctly demonstrated and described an abdominal examination and responded correctly to the question; partial credit was to be given if the candidate either correctly demonstrated and described an abdominal examination or responded correctly to the question. Examiner 23 assigned Dr. Badalamente a score of "B" for this task, which was partial credit of two points;

    Examiner 62 assigned Dr. Badalamente a score of "C" for this task, which was full credit of four points.1

17. Dr. Badalamente responded to the specific question about rebound tenderness by stating that rebound tenderness in the lower right quadrant indicated "appendicitis." This answer, while correct for the lower right quadrant of the abdomen, was incorrect because Dr. Badalamente limited his response to only one area of the abdomen, rather than considering the entire abdomen. The Department could reasonably expect a candidate to

    respond to the question with the general answer of irritation or inflammation in the abdominal area. Three of the reference sources listed in the Candidate Information Booklet state that rebound tenderness is indicative of peritoneal inflammation, which could result from several different causes, including, but not limited to, appendicitis.

18. In explaining her rationale for giving Dr. Badalamente full credit for Task 3, Examiner 62 noted on her scoring sheet that Dr. Badalamente stated during his physical examination of the patient that he was looking for inflammation.2 The decision of Examiner 62 to give Dr. Badalamente full credit for this task was within the discretion of the examiner.

    Task 11

    
    

19. Task 11 dealt with orthopedics. The candidate was given a hypothetical patient's symptoms and was required, first, to select four tests that should be performed in diagnosing the problem and, second, to identify the conditions suggested by positive responses to these tests. The task was worth a total of six points, and full credit was to be given only if the candidate chose four correct tests and gave four correct responses to the second part of the task; partial credit was to be given for three correct tests and responses and for two correct tests and responses; no credit was to be given for fewer than two correct tests and responses. Both Examiner 23 and

    Examiner 62 assigned Dr. Badalamente a score of "C" for his answer, which was partial credit of four points, indicating that Dr. Badalamente had given three correct tests and responses.

20. Dr. Badalamente correctly identified the four tests that should be performed on the patient. In response to the question requiring him to identify the condition that would be suggested by a positive response to the piriformis test,

    Dr. Badalamente stated that a positive result would indicate a "piriformis problem." Dr. Badalamente's response was incorrect because it was a mere restatement of the obvious rather than the more specific, and correct, answer that it indicated a spasm of the piriformis muscle or sciatica.3

    Task 14

    
    

21. Task 14 dealt with range of motion, and the candidate was required to demonstrate and describe hip internal rotation and hip flexion. The task was worth a total of four points, and full credit was to be given only if the candidate correctly performed two demonstrations of range of motion; partial credit was to be given if the candidate correctly performed one demonstration. Both Examiner 23 and Examiner 62 assigned

    Dr. Badalamente a score of "A" for the task, indicating that neither of his demonstrations was performed correctly, and he received no points for this task.

22. Dr. Badalamente performed both of the range-of-motion demonstrations with the patient standing. This was incorrect because range of motion for hip internal rotation and hip flexion are to be performed with the patient supine or sitting.4

    Task 17

    
    

23. Task 17 dealt with dermatomes and sensory tests, and the candidate was required to name all the dermatome patterns that should be tested, given the patient's symptoms, and to demonstrate the dermatome selected by the examiners. The task was worth a total of four points, and full credit was to be given only if the candidate correctly named all of the dermatome patterns and correctly demonstrated the selected dermatome; partial credit was to be given if the candidate either named all of the dermatome patterns or correctly demonstrated the selected dermatome. Both Examiner 23 and Examiner 62 assigned

    Dr. Badalamente a score of "A" for this task, indicating that he neither correctly named the dermatome patterns nor correctly demonstrated the dermatome, and he received no points for this task.

24. Dr. Badalamente stated that, given the patient's symptoms, he would test the L5 and S1 dermatomes. The correct answer is the L4, L5, and S1 dermatomes, and Dr. Badalamente, therefore, failed to name one of the three dermatome patterns that should be tested.

25. On the second part of Task 17, Dr. Badalamente was asked to trace the pattern of the L3 dermatome. The

    L3 dermatome runs from the lateral aspect of the thigh across the medial portion of the thigh to the inner thigh, past the patella. Dr. Badalamente failed to trace the entire length of the dermatome, indicating only the portion of the dermatome that runs on the lateral aspect of the thigh.

    Task 21

    
    

26. Task 21 dealt with diagnostic imaging. There were two questions in Task 21, and the first question required the candidate to specify the changes the candidate would make to correct underexposure of the X-ray film.5 The task was worth a total of four points, and full credit was to be given only if the candidate correctly answered both of the questions; partial credit was to be given if the candidate correctly answered one of the questions. Both Examiner 23 and Examiner 62 assigned Dr. Badalamente a score of "A" for the task, indicating that he failed to answer either of the two questions in Task 21 correctly, and he received no points for this task.

27. Dr. Badalamente responded to the first question on Task 21 by stating that he would increase kVp and decrease MAS. Dr. Badalamente conceded at the hearing that, if this were his answer, it was incorrect.

    Task 25

    
    

28. Task 25 dealt with ancillary procedures, and the candidate was required to name three contraindications for the use of cryotherapy. The task was worth a total of two points, and full credit was to be given only if the candidate correctly named three contraindications; partial credit was to be given if the candidate correctly named one or two contraindications. Both Examiner 23 and Examiner 62 assigned Dr. Badalamente a score of "A" for the task, indicating that none of the contraindications he named was correct, and he received no points for this task.

29. Dr. Badalamente named hemorrhage, infection, and malignancy as three contraindications for cryotherapy. None of these three conditions are contraindications for cryotherapy; cryotherapy is a recognized treatment for hemorrhage and infection and is also used to treat some kinds of malignancies.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002).

31. Dr. Badalamente, because he is challenging his score on the Physical Diagnosis portion of the Chiropractic Licensure Examination administered May 10 through 13, 2000, has the burden

    of proving by a preponderance of the evidence that he is entitled to additional credit for his answers to Tasks 3, 11, 14, 17, 21, and 25. See Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

32. Based on the findings of fact herein, Dr. Badalamente failed to prove by a preponderance of the evidence that the answers he gave to the challenged questions were correct. See Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999), cause dismissed 761 So. 2d 328 (Fla. 2000).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the petition of Leonard Badalamente challenging his score on the Physical Diagnosis portion of the Chiropractic Licensure Examination administered May 10 through 13, 2000.

DONE AND ENTERED this 21st day of August, 2002, 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 21st day of August, 2002.

ENDNOTES

1/ Neither examiner was called to testify at the hearing. The scan sheet for each examiner was, however, received into evidence as a business record of the Department. See Barfield v. Department of Health, Board of Dentistry, 805 So. 2d 1008 (Fla. 1st DCA 2002).

2/ Weight has been given to the comment included by Examiner 62 on her scoring sheet for Task 3 because it is unambiguous in explaining the reason she gave Dr. Badalamente full credit on the task notwithstanding his answer of "appendicitis" to the specific question posed. None of the other comments on the scoring sheets have been given any weight, however. As noted by the Department's expert witness, the comments themselves are ambiguous because some examiners write down the correct answer and some examiners write down the answer given by the candidate. Because neither of the examiners was called as a witness to explain the bases for his or her scoring, the comments on the scan sheets have no probative value.

3/ It should be noted that the Department's expert witness testified at one point that Dr. Badalamente's response to the question related to pain involving hip flexion. This is an incorrect representation of Dr. Badalamente's response.

Dr. Badalamente gratuitously stated that a positive result on the piriformis test would manifest itself as pain on hip

flexion. His response to the question posed on the examination was that a positive result on the test indicated a "piriformis problem."

4/ Dr. Badalamente conceded in his testimony that the demonstrations should be performed with the patient supine, but he maintained that the degree of range of motion would be the same whether it was measured with the patient supine or standing. This is irrelevant even if true.

5/ Dr. Badalamente did not claim during the hearing that his response to the second question in Task 21 was correct.

COPIES FURNISHED:

Leonard Badalamente

534 Wildwood Lane

Deerfield Beach, Florida 33442

Renee Alsobrook Department of Health 4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1703

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

R.S. Power, Agency Clerk 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: 02-001106

Orders for Case No: 02-001106