The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
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: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue is whether Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.
Findings Of Fact Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows: Grader 27--Cervical (3), thoracic (3), occipital (3), pelvic (2), rib (3), and soft tissue (3.5). Grader 37--Cervical (3), thoracic (3), occipital (3), pelvic (3), rib (3), and soft tissue (3). Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance: Cervical (3), thoracic (2.5), occipital (3), pelvic (2), rib (3), and soft tissue (2.5). Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Chiropractic Examiners, enter a Final Order denying the request for relief filed by Jens Emilio Valle and dismissing the petition for relief. DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Examiners 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7). COPIES FURNISHED: E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067 Patricia Guilford Executive Director Board of Chiropractic Examiners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2-15.001(2)(e)3. are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioner, a Florida-licensed chiropractor, is the subject of an Administrative Complaint filed against him by the Department of Health, Board of Chiropractic. The Administrative Complaint alleges that the Petitioner's letterhead identifies him as a "CICE (Certified Independent Chiropractic Examiner)" and that such designation requires a disclaimer as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e)3. The Administrative Complaint further alleges that the use of the designation constitutes a deceptive and misleading advertisement pursuant to Florida Administrative Code Rule 64B2- 15.001(2)(e). The Administrative Complaint was filed as the result of a complaint against the Petitioner filed by another chiropractor. The American Board of Independent Medical Examiners (ABIME) bestows the designation "CICE" on chiropractors. Some chiropractors such as the Petitioner obtain the designation by completing a 20-hour course over a weekend and then passing a test. A witness for the Respondent, Dr. Ronald Lee Harris, obtained the designation by working with the ABIME on reviewing examination questions used by the ABIME and has not completed any course of training related to the CICE designation. Another witness for the Respondent, Dr. Stanley Kaplan, testified that he was listed on the ABIME website with the CICE designation, but that he was unaware of the designation until the day prior to the hearing and has not completed any course of training related to the CICE designation. Florida Administrative Code Rule 64B2-15.001(2)(e) provides as follows: 64B2-15.001 Deceptive and Misleading Advertising Prohibited; Policy; Definition. (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it: * * * (e) Conveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, possess qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialities recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each speciality requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any specific chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that “The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine.” The Petitioner asserts that the phrase "other than a simple listing of earned professional post-doctoral or other professional achievements" as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e) is vague and fails to properly apprise a reasonable person as to what is prohibited. The Respondent presented the expert testimony of three witnesses during the hearing. Two of the three witnesses offered differing opinions as to what constitutes "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Stanley Kaplan testified that the phrase would permit a chiropractor to list only his chiropractic degree, but also indicated that a "simple listing" could include any items a chiropractor would include on a curriculum vita. Dr. Ronald Lee Harris testified that the phrase includes only the chiropractic degree and that listing "achievements" other than a degree and Diplomate status would require inclusion of the language related to the awarding entity's lack of affiliation with or recognition by the Florida Board of Chiropractic Medicine (the "disclaimer language"). Dr. Harris testified that the information set forth on a curriculum vita would not be properly included in "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Steven Willis testified that the phrase "simple listing of earned professional post-doctoral or other professional achievements" could be viewed as vague if considered outside the context of the remainder of the rule section, but asserted that the language set forth in subsection 3 of Florida Administrative Code Rule 64B2- 15.001(2)(e) clarified the phrase. Dr. Willis' testimony was credible and is accepted. Based on the testimony of Dr. Steven Willis and a contextual reading of the Rule, Florida Administrative Code Rule 64B2-15.001(2)(e) is not vague. The evidence establishes that the reference to "a simple listing of earned professional post-doctoral or other professional achievements" achievements in Florida Administrative Code Rule 64B2-15.001(2)(e) is limited by subsection 3 to require inclusion of a disclaimer in certain specific circumstances. Clearly a chiropractor can advertise the fact that he has received a doctorate in chiropractic medicine. A chiropractor may also advertise "earned professional post- doctoral or other professional achievements," whether or not the Board of Chiropractic Medicine has recognized the conferring entity. In the event the Board has not recognized the conferring entity, the advertising chiropractor must include the disclaimer language when the designation connotes "recognition as a specialist in any specific chiropractic or adjunctive procedure." The Petitioner further asserts that Florida Administrative Code Rule 64B2-15.001(2)(e)3. is vague because the phrase "specialist in any specific chiropractic or adjunctive procedure" is capable of multiple interpretations. The evidence establishes that, within the context of the Rule, "specialist in any specific chiropractic or adjunctive procedure" has sufficient meaning to convey who is being identified and is therefore not vague. The Rule requires only that where an advertising chiropractor represents himself to be a specialist in any chiropractic or adjunctive procedure by virtue of a "certification" from an unrecognized entity, the advertising must include the disclaimer language that the certification was received from a "private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine."
Findings Of Fact The Respondent, Joseph A. Buttacavoli, is a licensed chiropractor, having been issued license number 00335. The Respondent practices chiropractic at 7162 Beneva Road, Sarasota, Florida 33583. (See Prehearing Stipulation.) On July 6, 1981, Jeffrey Goldman responded to the Respondent's newspaper advertisement offering a free examination. (See Prehearing Stipulation; Tr. 15.) On July 6, 1981, Goldman was complaining of pain in the neck radiating into the left shoulder. The pain was recent in origin, having started a few weeks prior to July 6, 1981. Goldman had suffered similar problems during the past 10 or 12 years on an intermittent basis, but this instance was more intense than previously experienced. (Tr. 12, 13.) The Respondent performed a free examination consisting of certain orthopedic and neurological tests. (Tr. 73, 77.) The Respondent did not record in writing the results of this examination. (Tr. 117.) Two of the tests were positive on Goldman's left side. (Tr. 73-77.) After completion of the examination, the Respondent tentatively diagnosed a pinched nerve in the neck and recommended to Goldman that x-rays be taken. (Tr. 78.) Goldman consented to the x-rays and was charged $80 for four x-rays which were taken. (See Prehearing Stipulation.) After the x-ray examination, the Respondent concluded that Goldman had a straightening of the normal cervical spine, some arthritic spurring and disc degeneration at the C4/C5 and C5/C6 level, and several vertebral misalignments. (See Prehearing Stipulation; Tr. 87.) The Respondent advised Goldman that his condition was serious and recommended treatment for 90 days. (See Prehearing Stipulation.) The Respondent told Goldman what the 90 days' treatment would cost and advised Goldman that the cost would be less if paid in advance. The Respondent practices a chiropractic technique known as Grostic or orthospinology. (Tr. 53, 55.) A diagnosis cannot be reached without x-rays using the Grostic technique, and the Respondent takes x-rays in every case except those in which the problem is muscular or x-rays are refused by the patient. (Tr. 115, 116.) The preliminary or free examination is the basis for the Respondent's recommending that x-rays be taken. (Tr. 117.) In the Grostic technique, a complex analysis of x-rays is the basis for a final diagnosis. This requires that x-rays be taken of the patient to apply the technique. (Tr. 59-63, 117-118.) In addition to the x-rays, which were kept by the Respondent as part of the record, Goldman's history/interview form was also maintained. (Tr. 48.) The x-rays on file and the medical history form constitute sufficient justification for the recommendation made by the Respondent to Goldman. The diagnosis of Goldman's problem was based upon his history, a physical examination and x-ray findings. These findings were reviewed by Dr. George Stanford Pierce, who verified the Respondent's suggested course of treatment based upon the records the Respondent maintained. (Tr. 150.) Goldman refused further treatment by the Respondent. (Tr. 26.) No evidence was received that the Respondent practiced chiropractic with less than the required level of care, skill and treatment recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed by the Petitioner against the Respondent, Joseph A. Buttacavoli, be dismissed. DONE and RECOMMENDED this 12th day of July, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Michael R. N. McDonnell, Esquire 600 Fifth Avenue, South, Suite 301 Post Office Box 8659 Naples, Florida 33941 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1997. The examination consisted of four parts: "x-ray interpretation"; "technique"; "Florida laws and rules"; and "physical diagnosis." The minimum passing score for each part was 75. Petitioner passed the "Florida laws and rules" and "technique" portions of the examination. She failed the "x-ray interpretation" and "physical diagnosis" portions of the examination, with scores of 63.20 and 70.50. respectively. As noted above, Petitioner's evidentiary presentation at hearing addressed only the "physical diagnosis" portion of the November 1997 licensure examination. On this portion of the examination, candidates demonstrated their knowledge of physical diagnosis by responding to test questions, in the presence of two examiners, either verbally or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the examiners' scores. Prior to the administration of the "physical diagnosis" portion of the November 1997 licensure examination (PD Test), examiners were provided with written instructions (Examiners' Instructions) regarding their role in the examination process and the standards they should follow in grading candidates' performance. In addition, examiners were required to attend a pre-examination organizational meeting at which they were provided with further instructions and training designed to enhance grading standardization. Questions 11 through 13 on the PD Test covered the subject of orthopedics. Candidates were presented with a written case history to which they were to refer in responding to these questions, as well as to all subsequent questions on the PD Test (including those at issue in the instant case). In question 11, candidates were asked to select (from a list) four orthopedic tests which, under the circumstances presented in the case history, were appropriate to administer to the "patient." As Petitioner conceded at hearing, of the four tests she selected, only three were appropriate. The fourth test she selected, Yergason's Test, was not an appropriate test to administer in view of the "patient's" case history. In question 12, candidates were asked to demonstrate on the "patient" how they would administer the tests they selected in response to question 11. Question 12 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting and properly demonstrating four appropriate tests; three points for selecting and properly demonstrating three appropriate tests; two points for selecting and properly demonstrating two appropriate tests; and one point for selecting and properly demonstrating one appropriate test. Both examiners awarded Petitioner two points for her response to question 12. Although she selected three appropriate tests, she properly demonstrated only two of these three tests. The test she did not properly demonstrate was Tinel's Sign. The "patient's" case history suggested that ulnar nerve, not median nerve, testing needed to be done on the "patient." There are five types of Tinel's Sign tests. One is designed to test the ulnar nerve and involves tapping on the "funny bone." Another is for testing the median nerve and involves tapping on the wrist. Petitioner demonstrated the type of Tinsel's Sign test used to probe the median nerve, when she should have demonstrated the type used to test the ulnar nerve. Because she selected only three appropriate tests and demonstrated only two of these tests properly, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 12. Question 13 required candidates to state what conditions would be suggested by positive results from the tests selected and demonstrated. Question 13 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting four appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; three points for selecting three appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; two points for selecting two appropriate tests and correctly stating, as to each, what condition would be indicated by positive results; and one point for selecting one appropriate test and correctly stating, as to that test, what condition would be indicated by positive test results. Both examiners awarded Petitioner two points for her response to question 13. Petitioner did not correctly name the condition suggested by a positive Cervical Compression test, one of the three tests she correctly selected in response to question 11. Because Petitioner selected only three appropriate tests and, with respect to one of these tests (the Cervical Compression test), failed to correctly state what condition would be indicated by positive test results, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 13. Questions 14 through 16 on the PD Test covered the subject of range of motion. In question 16, candidates were asked to explain the difference and significance between active range of motion and passive range of motion. Question 16 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for answers to question 16. Neither examiner awarded Petitioner any credit for her response to question 16. In responding to the question, Petitioner gave an accurate explanation of the difference between active range of motion and passive range of motion (by noting that the former, unlike the latter, is performed by the patient without assistance), but she did not accurately explain the significance of the difference, as required by the second part of the question. Petitioner incorrectly stated, in attempting to answer this part of the question, that active range of motion is characterized by ligament involvement. Because Petitioner did not correctly answer question 16 in its entirety, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for this question. Questions 17 through 19 on the PD Test covered the subject of neurology and focused upon muscle testing. Question 17 required candidates to name all relevant muscles that that they would test in light of the case history with which they were presented (which reflected that the "patient" had neck pain and numbness radiating down her right arm into her ring finger and little finger). Question 17 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for naming four relevant muscles; one and a half points for naming three relevant muscles; one point for naming two relevant muscles; and a half point for naming one relevant muscle. Neither of the two examiners awarded Petitioner any credit for her response to question 17. There was no connection between the muscles Petitioner named and the nerve root that the symptoms (described in the case history) suggested was the cause of the "patient's" problems. Inasmuch as Petitioner named no relevant muscles, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for question 17. Question 18 required candidates to demonstrate on the "patient" how to test two muscles selected by the examiners. Petitioner was asked to test the "patient's "triceps muscle and the interossei muscles of the "patient's" hand. The Examiners' Instructions provided that candidates should be awarded two points (full credit) for correctly demonstrating both tests and one point for correctly demonstrating one of the two tests. One examiner awarded Petitioner two points for her demonstration in response to question 18. The other examiner did not award Petitioner any points. Accordingly, Petitioner received one point (the average of the two examiners' point awards) for her response to question 18. Petitioner tested the interossei muscles of the "patient's" hand in a manner that is unconventional, but nonetheless acceptable. She did not test the "patient's" triceps muscle correctly, however, inasmuch as she did not, during her demonstration, do what was necessary to isolate that muscle. Because she performed only one of the two tests correctly, awarding Petitioner more than the one point she has already received for her response to question 18 would be inconsistent with the grading guidelines set forth in the Examiners' Instructions. To receive credit for question 19, candidates had to explain and interpret a grade level of muscle testing selected by the examiners. (There are six such grade levels: zero through five. The examiners were instructed to select one of these six grade levels.) Petitioner was asked by the examiners to explain and interpret grade level three testing. Question 19 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for responses to question 19. One examiner awarded Petitioner one point for her response to question 19. The other examiner did not award Petitioner any points. Accordingly, Petitioner received a half point (the average of the two examiners' point awards) for her response to question 19. Petitioner incorrectly stated, in response to question 19, that grade level three testing involves range of motion without gravity. Grade level three testing actually involves range of motion with gravity. Accordingly, pursuant to the scoring guidelines set forth in the Examiners' Instructions, Petitioner should not have received any credit for her response to question 19. Questions 20 and 21 on the PD Test covered dermatomes and sensory testing. Question 20 required candidates to name all relevant dermatome patterns that they would test for in light of the "patient's" case history and to demonstrate one of these tests (selected by the examiners) on the "patient." Petitioner was asked to demonstrate dermatome C5 testing. Question 20 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for correctly naming all relevant dermatome patterns and correctly demonstrating the selected test, and one point if they correctly named all relevant dermatome patterns or correctly demonstrated the selected test (but failed to do both). One examiner awarded Petitioner two points for her response to question 20. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 20. Petitioner correctly named all of the relevant dermatome patterns, but she incorrectly demonstrated dermatome C5 testing inasmuch as she focused upon the trapezium ridge, rather than the lateral aspect of the arm. Accordingly, pursuant to the grading guidelines set forth in the Examiners' Instructions, Petitioner should have received one point for question 20. Question 21 was worth two points. One examiner awarded Petitioner two points for her response to question 21. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 21. Respondent concedes that Petitioner should have received full credit (two points) for her response to question 21, and there is no evidence indicating otherwise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
