STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR ESTEVEZ, JR.,

Petitioner,

vs.

DEPARTMENT OF HEALTH,

Respondent.

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) Case No. 02-3612

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on November 13, 2002, via video teleconference in Miami and Tallahassee, Florida, before Florence Snyder Rivas, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Victor Estevez, Jr., pro se

11118-4 Southwest 132nd Place Miami, Florida 33186

For Respondent: Cassandra Pasley, Esquire

Department of Health

Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to receive a passing score on the Physical Diagnosis portion of the May 2002 chiropractic licensure examination.

PRELIMINARY STATEMENT

In May 2002 Petitioner, Victor Estevez, Jr. (Petitioner or Estevez), took the chiropractic licensure examination. In an examination grade report mailed on July 12, 2002, the Department of Health, Testing Services (Department) notified Petitioner that he had failed.

In this proceeding, Estevez asserts that the Department wrongly failed to credit him with correct answers on three separate questions. If he prevails as to any one question, he would attain a passing score on the examination.

At the hearing, Petitioner testified on his own behalf.

Petitioner sought and was granted leave to late file a packet of documents he relied upon at the final hearing as a composite exhibit. This filing was docketed on November 15, 2002.

The Department presented the testimony of Linda M. Dean, Ph.D. (qualified without objection as an expert in the field of psychometrics), and Gary Weiss, D.C. (qualified without objection as an expert in the field of chiropractic medicine). Respondent offered Exhibits 1-7 into evidence, which were all admitted. Respondent’s Exhibits 3, 4, and 6 were admitted under seal, pursuant to Section 456.014(2), Florida Statutes.

Pursuant to the tribunal's order, the original one-volume transcript of the hearing was filed with the agency clerk for the Department on January 8, 2003. Counsel for Respondent

redacted the transcript, removing the actual language of examination questions only. A redacted copy of the transcript of the hearing was filed on January 10, 2003, with the Division of Administrative Hearings. Respondent’s Proposed Recommended Order was timely filed on January 21, 2003. Petitioner elected not to file a proposed recommended order.

FINDINGS OF FACT

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. Estevez was a candidate for the chiropractic licensure examination administered in May, 2002. In an Examination Grade Report dated July 12, 2002, the Department advised Estevez that he had failed the examination.

3. In this proceeding, Estevez asserts that the Department wrongly failed to credit him with correct answers on three separate questions. If he prevails as to any one question, he would attain a passing score on the examination.

4. The questions at issue come from the clinical portion of the examination. This exam is divided into three subparts: X-ray Interpretation; Physical Diagnosis; and Technique. The questions at issue in this proceeding come from the Physical Diagnosis subpart.

5. The Physical Diagnosis portion of the May 2002 examination is a practical examination that tests a candidate’s competency to evaluate and examine patients by choosing, naming, demonstrating, and interpreting diagnostic imaging and laboratory reports based on a hypothetical case history. The histories are supplied to the candidate, who is then asked to perform a number of "tasks."

6. The questions are designed to measure the ability of an entry level chiropractor to diagnose and treat common ailments for which chiropractic care is typically sought. The hypotheticals avoid the use of exotic problems which would challenge an experienced practitioner. Instead, the test situations are designed to reveal whether the candidate has mastered the basic skills necessary to competently examine a "patient," to identify and administer appropriate tests, to answer questions, and, ultimately, to diagnose the patient's problems in situations which are typical to the day to day practice of chiropractic. The assigned "tasks" are not intended to stump or trap candidates who have mastered entry level skills.

7. In order to be qualified to serve as an examiner, 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.

8. Examiners 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.

9. In an actual examination, 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. The purpose of the current examination process, including standardization and using two examiners versus one examiner, is to ensure fairness to the candidate and the reliability of the scores. 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.

10. 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.

11. To further assure the fairness of the process, two examiners score each candidate on the Physical Diagnosis portion of the examination, and to provide unsuccessful candidates with a meaningful avenue of appeal, a videotape of the candidate's responses is made.

12. When there is a scoring discrepancy, or when a candidate challenges a decision not to credit an answer, the videotape is available to the examiners, to the administrative law judge, and ultimately to the Board of Chiropractic, so that the candidate's answer may be independently assessed.

13. The two examiner's scoring Estevez'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.

14. In this case, Estevez challenged the scores he received on Tasks 10, 15, and 23 of the Physical Diagnosis portion of the examination.

15. For the reasons set forth below, Estevez has failed to demonstrate that the examiners erred in scoring his answers to these questions.

16. The questions posed in Task 10 arise out of the facts of the examination hypothetical Case 2. Case 2 poses a patient who presents with severe pain and swelling in his calf, ankle, and heel, after he suffered an injury the day before. Also, the “patient” has been unable to bear weight on that leg since the injury.

17. Task number 10 asks the candidate to choose four tests that are appropriate for Case 2 and to state what conditions are suggested by a positive response to the tests selected.

18. Points are only awarded if both the test stated by the candidate is appropriate and the conditions that are suggested by a positive response to the tests are correctly identified.

19. A score of zero points is given when a candidate lists 0-1 correct tests and conditions. A score of two points is given when a candidate lists 2-3 correct tests and conditions. A score of four points is given when a candidate lists all four correct tests and the conditions that a positive test would indicate.

20. Petitioner received zero points from both examiners for his answer to Task 10.

21. Petitioner listed four tests, three of which were correct and one of which was incorrect. However, Petitioner failed to correctly match the condition(s) that would be identified by a positive test result to the three tests that were correctly listed.

22. The first test identified by Petitioner was the Ankle Draw Test. The condition Petitioner listed that would be indicated by a positive sign is “gapping in the area of the ligaments.” Petitioner also stated that this test would be used to check anterior and/or posterior ligaments to see if there is any “laxity.” When asked by one of the two examiners what ligament, Petitioner stated anterior and posterior cruciate and dorsiflexors proateus.

23. A positive Ankle Draw Test would indicate damage to the anterior and/or posterior talofibular ligament stability. Petitioner failed to state this, as he was required to do, in order to receive full credit. Petitioner argues, unpersuasively, that his initial answer of anterior and/or posterior ligaments is sufficient.

24. The second test stated by Petitioner was the Thomas Test. The condition Petitioner listed that would be indicated by a positive sign is damage to the Achilles tendon.

25. The Thomas Test was an incorrect answer for Task 10; a positive Thomas Test does not indicate Achilles tendon rupture, therefore, Petitioner should not receive credit for this answer.

26. The third test stated by Petitioner was the Thompson Test. The condition Petitioner listed that would be indicated by a positive response to this test is exacerbation of pain.

27. In fact, a positive Thompson Test would indicate Achilles tendon rupture. Thus, it was proper not to credit Petitioner's answer.

28. The fourth test stated by Petitioner was the Lateral Stability test. Petitioner stated that this test checks stabilizers on the lateral aspect. Petitioner also listed the peroneus longus and brevis.

29. In fact, a positive Lateral Stability test would indicate a tear of the talofibular and/or calcaneoufibular ligament. Thus, it was proper not to credit Petitioner's answer.

30. Petitioner should not receive any additional points for Task 10 because he failed to correctly match a single appropriate test with the condition that would be indicated by a positive response to that test.

31. Second, Petitioner challenged the score he received on Task 15. This task also arises out of hypothetical Case 2. Here, candidates were asked to indicate which X-ray view or

    views should be performed. The instructions further provided that points would be deducted for incorrect views.

32. A score of zero points is given when a candidate has stated the required views but has added two or more unacceptable studies, or where a candidate has failed to state all of the required views. A score of two points is given when a candidate has stated the required views but has added one unacceptable study. A score of four points is given when a candidate has stated all of the required views.

33. The correct answer to this question requires listing three required views. Petitioner correctly listed two of the three required views, but failed to list the medial oblique

    X-ray view.

    
    

34. Estevez opined that “Many text books have gone to include the three views as a standard, but this is not so.”

35. To the contrary, the evidence established that Estevez's failure to list the medial oblique X-ray view for this patient rendered his answer for Task 15 fatally incomplete.

36. Finally, Estevez challenged the score he received on Task 23. Task 23 asks the candidate to demonstrate and fully describe testing for the sensory component of cranial nerve V and the motor component for cranial nerve VII.

37. The evidence established that Petitioner's demonstration for the sensory component of cranial nerve V was

    incomplete. Petitioner failed to fully describe his testing of the ophthalmic branch of cranial nerve V.

38. In addition, a review of the videotape in conjunction with the expert testimony reveals that Petitioner failed to adequately test for sensory perception of the ophthalmic branch of cranial nerve V and failed to demonstrate the requisite knowledge of how the sensory component of all three prongs of cranial nerve V is tested.

    CONCLUSIONS OF LAW

    
    

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

40. The Department is authorized to administer licensure examinations for chiropractors. Section 456.017, Florida Statutes, (2002). 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.

41. In this proceeding, Petitioner has the burden of proving by a preponderance of the evidence that his examination scoring was flawed and that the Department acted arbitrarily or capriciously or abused its discretion with respect to the

scoring of his examination. See Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250, 1251

(Fla. 3rd DCA 1999), cause dismissed, 761 So. 2d 328 (2000); Harac v. Department of Business and Professional Regulation,

484 So. 2d 1333, 1337 (Fla. 3d DCA 1986). Petitioner has failed to meet that burden.

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 challenge to Petitioner's failing score on the Physical Diagnosis portion of the Chiropractic Licensure Examination of May 2002.

DONE AND ENTERED this 6th day of February, 2003, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 6th day of February, 2003.

COPIES FURNISHED:

Victor Estevez, Jr.

11118-4 Southwest 132 Place

Miami, Florida 33186

Cassandra Pasley, Esquire Department of Health

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

R. S. Power, 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

Dr. John O. Agwunobi, 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: 02-003612

Orders for Case No: 02-003612