The Issue The issue presented is whether or not Petitioner passed the 1987 chiropractic examination.
Findings Of Fact Petitioner, Mary Campilii, was a candidate for the May 14-17, 1987 chiropractic examination. Petitioner achieved an overall score of 72, as reflected by an upward revision to her original score of 66, on the practical section of the examination. Petitioner achieved a score of 76 on the Florida laws and rules section of the examination. A minimum score of 75 is required to pass both the practical and laws and rules sections of the examination. Petitioner has challenged the method of grading utilized by the Respondent contending that it is subjective as it elates to her, and did not properly reflect her level of achievement and knowledge to the questions that she answered on the May 1987 examination. Petitioner failed to demonstrate that she demonstrated expert or superior knowledge in her answers to any of the questions on the May 1987 exam that she now challenges. The oral practice examination for chiropractic certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for license certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3, which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimum competency and a score of 4 is given when a candidate demonstrates superior or expert knowledge in the subject area tested. Petitioner presented Thomas P. Toja, an expert in grading chiropractic examinations for the Board, who offered his opinion that had the grading system utilized by Respondent been different, i.e. a system whereby a candidate could be accorded a score somewhere between a 3 and 4, when such candidate has demonstrated more than minimum competency but less than superior or expert knowledge in the subject area tested, a candidate, such as Petitioner, could have achieved an additional 3 points to her score of 72, and thereby received a passing score of 75. Petitioner has not, however challenged validity of the existing rule which permits Respondent to utilize the grading procedures applied in this case. Stephen Ordet, a licensed chiropractor in Florida for more than 7 years was received as an expert in the grading of chiropractic examinations in Florida, and was one of the graders during the May 1987 examination. Ordet's opinion, which is credited, was that Petitioner did not earn a score of 4 on any of the questions that she now challenges, and was correctly assigned a score of 3 for each of the responses she gave to questions she challenged. Thomas P. Hide, a chiropractor who specializes in the area of sports related injuries, was tendered and received as an expert in the area of reviewing x-rays and the grading of the chiropractic examination. Hide credibly testified and it is found that Petitioner was properly assigned a score of 3 on questions 8, 12, 20, 22, 28, 29, 30 and 33.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that she met the minimum criteria to pass the challenged chiropractic examination and deny her request for licensure. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Mary Camiplii 2921 Buckridge Trail Loxahatchee, Florida 33470 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The basic issue in this case is whether the Petitioner should be given a passing grade on the April, 1987, professional engineering examination. At the hearing the specific issues in dispute were narrowed to whether the Petitioner should be given a higher grade on each of three questions on the examination. At the hearing the Petitioner testified on his own behalf and presented the testimony of two other witnesses. He also offered several documentary exhibits into evidence. The Respondent offered the testimony of one witness and also offered several exhibits. Subsequent to the hearing a transcript of the hearing was filed with the Hearing Officer and the parties were given a reasonable time thereafter within which to file their proposed recommended orders. Both parties filed post-hearing submissions containing proposed findings of fact, conclusions of law, and recommendations. The parties' proposals have been given careful consideration in the preparation of this recommended order. All findings of fact proposed by all parties are addressed in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The April, 1987, professional engineering examination required an applicant to work four problems in the morning session and four problems in the afternoon session, for a total of eight problems. In order to pass the examination, the applicant had to achieve an average score of six points for all eight problems, or a raw score of forty-eight points. Mr. Schmidt's examination was given a total score of forty points, comprised of scores as follows: 10, 8, 5, 5, 4, 4, 3, and 1. Mr. Schmidt, therefore, needs eight additional raw points in order to receive a passing grade on the examination. An additional requirement is that in order to receive a passing grade on the examination, the applicant must score six points or more on at least five of the eight questions. Mr. Schmidt is challenging three questions on the exam, questions 114, 411 and 418. On question 114, Mr. Schmidt was given a score of four. On question 411, Mr. Schmidt was given a score of five. On question 418, Mr. Schmidt was given a score of three. At the commencement of the hearing, the Respondent stipulated that Mr. Schmidt's score of question 418 should be increased to five. The Item Specific Scoring Plan (ISSP) is a device utilized to standardize graders so that a person grading a specific problem for various different candidates would consistently apply the same score to the same type of deficiency throughout the scoring process. There was an individualized Item Specific Scoring Plan for each problem given on the subject examination. Each of the Item Specific Scoring Plans contains objective criteria for assigning from 0 to 10 points to a candidate's answer to each question. There is no evidence that the Item Specific Scoring Plans are defective or arbitrary and capricious. The percentage of successful candidates on the chemical engineering examination has been rather low on recent examinations. Approximately 15% passed the April, 1986, exam. Only 2.9% passed the October, 1986, exam, and 25% passed the April, 1987, exam. During that same period of time the success rate was generally (but not always) higher for candidates for licensure in other fields of engineering. The grade of four given to Mr. Schmidt's response to question number 114 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of five given to Mr. Schmidt's response to question number 411 is consistent with the individualized Item Specific Scoring Plan for that question. The grade of three given to Mr. Schmidt's response to question number 418 is not consistent with the individualized Item Specific Scoring Plan for that question. The parties have stipulated that Mr. Schmidt's grade on question number 418 should be at least five. The evidence is insufficient to show that Mr. Schmidt is entitled to a higher grade than five on question number 418.
Recommendation Based on all of the foregoing, I recommend that the Board of Professional Engineers issue a final order to the following effect: Increasing Petitioner's score on question 418 from three to five, leaving Petitioner's other scores unchanged, and assigning to Petitioner a final grade of forty-two. DONE AND ORDERED this 11th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4175 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Petitioner's proposed findings regarding problem number 114 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, particularly in view of the further testimony of Dr. O'Connell to the effect that he had no quarrel with the ISSP for this question and to the testimony of both Dr. O'Connell and Dr. Hanley to the effect that the grade given to Petitioner on this question is consistent with the ISSP. Petitioner's proposed findings regarding problem number 411 have for the most part been rejected as irrelevant on the basis of testimony by both Dr. O'Connell and Dr. Hanley to the effect that the ISSP required evidence of a trial and error solution and that such a solution is not shown in the Petitioner's answer. Petitioner's proposed findings regarding problem number 418 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, in view of additional evidence to the effect that the Petitioner's boxed answer to this question was not a reasonable answer. With regard to the penultimate paragraph of the Petitioner's proposed findings, the first two sentences are essentially correct, but also irrelevant, because the burden of proof is on the Petitioner rather than on `the Respondent. With regard to the remainder of the penultimate paragraph, I have made findings regarding the success rate of chemical engineers, but find that evidence, standing along, insufficient to establish any impropriety in the examination. The final paragraph of the Petitioner's proposed findings is more in the nature of argument than proposed facts. It may well be that the Petitioner received less prehearing information from the Respondent than he was entitled to receive, but those are matters which should be raised before rather than after the hearing, and are matters which are waived if not timely asserted. Findings proposed by Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Omitted as unnecessary subordinate details. Paragraph 4: Omitted as unnecessary subordinate details. Paragraph 5: The essence of this paragraph has been accepted, but most details have been omitted an unnecessary. Paragraph 6: Accepted. Paragraph 7: Accepted. Paragraph 8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Omitted as unnecessary subordinate details. COPIES FURNISHED: Mr. Daniel B. Schmidt 2209 Northeast 15th Terrace Gainesville, Florida 32601 H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner took the chiropractic examination given by Respondent on November 4-7, 1992. The examination consists of three parts; physical diagnosis, technique, and x-ray interpretation. The minimum passing grade on each part is 75. Petitioner received an 80 on x-ray interpretation and a 36.5 and 67.5, respectively, on the physical diagnosis and technique parts. Here, Petitioner challenges only his score of 67.5 received on the technique part of the examination. If Petitioner passes the technique portion of the examination, he will be required to pass only the physical diagnosis in order to complete the examination requirements for his license. The technique portion of the examination consists of five clinical cases and four follow-up questions on each case. The technique part of the examination is timed. Like all candidates, Petitioner was provided with a timer and informed that no more than 10 minutes was allowed for all five cases, including the 20 follow-up questions. Petitioner neither stated a need for additional time nor requested additional time to complete the technique portion of the examination. Petitioner has only one leg and would have been given additional time if requested. Petitioner's challenge to the technique part of the examination is limited to clinical Case 1. No challenge is made to the follow up questions to Case 1. Case 1 required Petitioner to set up an appropriate technique for a patient who was eight months into pregnancy. The patient had a left anterior superior ilium. The condition of anterior superior ilium is more often associated with trauma to the buttocks or a fall on one's hip than with pregnancy. Pregnancy causes the joints to move easily and requires special consideration when performing adjustments. Special consideration includes different set-up, contact, and line of drive. Petitioner's first form of adjustment for Case 1 was his own adaptation for the facts presented. Petitioner changed the contact points and line of drive from that reasonably considered appropriate under the circumstances. Once the contact points were improperly changed, the line of drive was incorrect.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's request for credit on Case 1 and a passing grade on the technique portion of the chiropractic examination given November 4-7, 1992. DONE and ENTERED this 18th day of August 1993, in Tallahassee, Florida. DANIEL MANRY 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 18th day of August, 1993 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0699 Petitioner's Proposed Findings of Fact Petitioner submitted no proposed findings Respondent's Proposed Findings of Fact 1.-8. Accepted in substance COPIES FURNISHED: Robert J. Dixon 8300 U.S. #1 North Micco, FL 32976 Vytas J. Urba, Esquire Dept. of Business and Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack Mcray Acting General Counsel Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented are: (1) whether or not Respondent wrongfully eliminated materials from the Candidate/Petitioner during the April 19, 1990 engineering examination, and if so, (2) whether the Candidate/Petitioner received a failing grade because the materials were wrongfully eliminated.
Findings Of Fact The Petitioner (#100021) received a score of 69.0 on the Professional Engineer Fundamentals Examination given April 19, 1990. A minimum passing score was 70.0 on the examination which is written by National Council of Engineering Examiners and graded by Education Testing Service. (Transcript Pages 36 and 39) Prior to the April 1990 examination, the Board sent each candidate a letter, dated December 18, 1989 (Exhibit P-1) (Transcript Page 9 and 12), which said, "No review publications directed principally toward sample questions and their solutions of engineering problems are permitted in the examination room." (Transcript Page 31). The candidates were also provided with a "Candidate Information Booklet" dated January 1990 (Exhibit R-1, Transcript Page 77). The booklet states on page 14, "No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room." (Transcript Pages 77 and 96). Petitioner, who also took the October 1989 examination had received notice at that examination that the Board of Engineers intended to change the procedure allowing reference materials in the examination. (Transcript Page 89 and Respondent's Exhibit 2.) The Board of Professional Engineers advised the examination supervisor and proctors that no engineering "review" materials would be allowed in the examination although engineering "reference" materials could be brought into and used for the examination. However the books which were excluded included books without "review" in the title, books with "reference" in the title, and books which contained problems and solutions. Before the examination began Deena Clark, an examination supervisor, read over a loud speaker system names of books that would not be permitted (Transcript Page 81). Practice examination and solution manuals were not allowed for use by engineering candidates (Transcript Pages 93 and 94). Schram's outlines and other materials were also excluded (Transcript Page 91). Also excluded was Lindeburg's 6th edition, "Engineering In Training Review Manual." (Transcript Pages 16 and 79). This decision was verified by the Board before the examination began (Transcript Page 81). After the examination had begun, Ms. Clark announced that the candidates could put certain copyrighted materials in a three-ring binder and use them which had been excluded earlier (Transcript Page 85). This was in response to candidates who needed economics tables for the examination However, no time was provided the candidate to prepare these references and only one minute was added to the examination time. (Transcript Page 85). Petitioner did not bring any economic tables to the examination site except those contained in books which were not allowed in the examination. (Transcript Page 19). Petitioner did not remove the economic tables and permitted references from the Lindeburg's review manual until lunch and these tables were not available to him on the morning examination. (Transcript Pages 22 and 88). Of the six engineering economics questions on the morning portion for the examination, the candidate correctly answered four. No data was provided on the nature of these questions. The Candidate correctly answered 53 questions in the morning (weighted x 1) and 23 questions in the afternoon (weighted x 2) for a total of 99 weighted required points. He answered eight questions correctly in the "addition" portion of the examination. The table for eight additional questions correct in the "Scoring Information Booklet" used in determining the candidates final grade shows the adjusted equated score was 126 and his scaled score was 69. (Page 21 of booklet). The value of each economics question converted to final scoring scale was enough that passage of one economics question would have resulted in passage of the examination. The exclusion of certain materials from the examination was arbitrary and capricious and was done by a few individuals without any stated objective standard published by the board. Further, the board knew before the examination which books were to be excluded and could have notified examinees of the exact items to be excluded. The Board's generally poor handling of this matter is exemplified in announcing after the examination had begun that items previously excluded could be used if placed in a ring binder but not allowing any time to prepare such materials. (Tx. pgs., 74-80, 84-86, and 91-97) The Petitioner would have used several tables which were excluded if the announcement had been made before the morning examination began with time to put the items in acceptable form. After notifications in October 1989, December 1989, and January 1990, Petition admitted that he did not call the Board of Professional Engineers to ask for guidance on books that would not be allowed on the April 1990 examination (Transcript Page 29). However, a final decision on books to be excluded was not made until approximately two weeks before the examination. The Petitioner did not show that the two questions which he missed on the Engineering Economics portion of the morning examination were missed for lack of the tables. The examination is a national examination and there is no evidence that the requirements and limits established by the Board in Florida were applicable nationwide. To alter the national instructions locally potentially adversely affects Florida results.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner be permitted to take the examination without charge on one occasion. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. 1/ The general information provided to examinees by the State Board regarding the values of questions on the examination and scoring it misleading or inaccurate because neither the weighted required score nor the adjusted score was 48% of 80, 280, or any other number related to the scaled score of 70. The manner in which these values are associated with the scale score of 70 is contrary to the Board's explanation and is not self evident. This is a potential problem if the matter were formally challenged, and it appears the Board needs to reassess its procedures and instructions. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5728 The Petitioner did not submit proposed findings. The Respondent submitted proposed findings which were read and considered. The following proposed findings were adopted or reject for the reasons stated: Adopted. Issue not fact. - 4. Rejected. Preliminary statement not fact. 5. -12. Adopted. Rejected. Preliminary statement not fact. Rejected as irrelevant. Rejected as preliminary statement. Adopted. Adopted. COPIES FURNISHED: Alan K. Garman Civil-Tech, Inc. 3573 Commercial Way Street B Spring Hill, FL 34606 William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Rex Smith Executive Director Board of Professional Engineers Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 61.3%, with 221 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. It is also asserted by the Petitioner that he was given insufficient time to review his examination in order to identify problems in the grading of the examination, and that the review room was cramped and noisy. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session began at 8:30 a.m. and concluded at 1:00 p.m. on that date, and was conducted in the Respondent's office in Tallahassee, Florida. The Petitioner actually began his review at 8:35 a.m., and completed the review and left the review room at 12:52 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review, and has also failed to prove by competent substantial evidence that conditions in the review room deprived him of an opportunity to conduct a meaningful review of his exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2799 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 13-16, 1992, petitioner, James S. Moore, a chiropractic physician, was a candidate on the chiropractic licensure examination. Doctor Moore is a recent graduate of Life Chiropractic College and was taking the examination for the first time. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Chiropractic (Board). On July 2, 1992, DPR issued a written uniform grade notice advising petitioner that while he had received passing grades on the X-ray interpretation and technique portions of the examination, he had received a score of 70.5 on the physical diagnosis portion of the test. A grade of 75.0 is necessary to pass this part of the examination. By letter dated September 23, 1992, petitioner requested a formal hearing to contest his score. In his letter, Dr. Moore generally contended that he had been denied licensure without any reason or explanation, and that during the review process his contentions were not given meaningful consideration. As further clarified at hearing, petitioner contended that he should have received higher scores on procedures 1, 2, 7, 10, 15, 17 and 18 of the physical diagnosis portion of the examination, and thus he should have received a passing grade. That portion of the test is a practical examination requiring the candidate to give verbal and demonstrative responses to a series of questions designed to test the candidate's diagnostic skills. Among other things, the candidate is required to perform certain tests and procedures on a volunteer patient. To memorialize a candidate's performance, the examination is videotaped, and a copy of petitioner's performance is found in joint exhibit 1 received in evidence. Petitioner generally contends that he should have received a higher grade on the above questions. To support his position, petitioner testified on his own behalf and presented the testimony of his uncle-employer, a chiropractic physician in Jacksonville, Florida, who has seven years experience in the field. Respondent offered the testimony of a Miami chiropractic physician who has been a grader on the examination for the last twelve years and was accepted as an expert in the field of chiropractic. It is noted that both physicians reviewed petitioner's examination prior to giving testimony. However, respondent's expert did not regrade the examination but rather evaluated the questions, petitioner's responses and the grades of the two examiners who graded petitioner to determine if the scores were within acceptable guidelines. As might be expected, the two physicians offered conflicting opinions regarding petitioner's examination scores. In resolving the conflicts in the testimony, the undersigned has accepted the more credible and persuasive testimony, and this testimony is embodied in the findings below. There are two independent chiropractors who grade each candidate on the physical diagnosis part of the examination. Each examiner is given one hour of standardization training prior to the examination, there is no discussion by the examiners during the examination itself, and they grade independently of one another. There is no evidence to support a finding that the two examiners who graded petitioner conferred with each other prior to assigning a grade or otherwise acted improperly in the performance of their duties. In order to preserve the confidentiality of the examination, the questions or information given to a candidate will not be repeated verbatim here but rather only a general description will be given. As to question 1, petitioner was penalized one point (or given a grade of three out of four points) because he stated that the normal range for a particular joint was at 100 degrees. He derived this answer from the American Medical Association Guidelines for Impairment, which is the standard used for disability evaluation. Because impairment standards are not synonymous with a normal range of motion, petitioner's response was incorrect and his score of three should not be changed. In procedure 2, the candidate was given a hypothetical case history of a female patient and was required to choose four appropriate orthopedic tests that related to her condition and to then perform each test. The question noted that if an incorrect test was selected, no credit would be given even if the test was performed correctly. Petitioner selected only two correct tests and accordingly received a grade of two out of four possible points. Respondent's expert confirmed that only two correct answers were selected, and thus petitioner's grade should not be changed. Among other things, procedure 7 required the candidate to use and interpret the Wexler scale, a reflex scale used by chiropractic and orthopedic physicians. Petitioner contended that the Wexler scale is considered zero to five, and he used this range to fashion his answer. Although at hearing respondent asserted that the scale is actually zero to four, it now concedes that petitioner's response was correct and that his grade on this question should be adjusted upward by 1.5 points. Procedure 10 related to diagnostic imaging and generally required the candidate to select the appropriate x-rays to be taken for a given set of facts. Because petitioner failed to take a necessary spot hip x-ray, he did not receive full credit on the question. At hearing, petitioner contended that the omitted x-ray would over-radiate the patient and that the large views taken of the patient would give sufficient detail of the primary complaint area. However, these contentions are rejected as not being credible. Therefore, the request to change the grade on this procedure should be denied. In procedure 15, petitioner was given certain information concerning a patient and was required to make a specific diagnosis to be written in the patient's records. The question also provided that if an incorrect diagnosis was selected, the candidate would receive no credit. In this case, petitioner failed to select the proper diagnosis. His response that the patient suffered from a "sprain/strain" of a particular muscle was incorrect since there is no such thing as a sprain of a muscle. Indeed, only joints and ligaments can be sprained. Although respondent's expert conceded that the correct answer was not "easy" to ascertain, all candidates faced the same level of difficulty on the question and thus no change in petitioner's grade is warranted. Petitioner next contends that he was given an incorrect grade on procedure 17, which required him to identify which physical examination procedures (more than one) he would use based upon a hypothetical patient history. The question provided that unless all procedures were identified, no credit would be given. Because petitioner did not state that he would take the patient's vital signs, a necessary procedure for a new patient, he properly received a zero score. Finally, procedure 18 used the same hypothetical patient history given in procedure 17 and required the candidate to demonstrate on a volunteer patient the necessary examination procedures. Of particular significance was the requirement that the candidate not only correctly perform the procedures, but also demonstrate those procedures in the usual and customary order. Unfortunately, petitioner performed the first of four procedures last, which would affect the reliability of the findings, and thus he received no credit. Therefore, petitioner's grade on this question should not be changed. In summary, with the exception of procedure 7, the scores given to petitioner on each of the challenged procedures are supported by logic and reason, and there is no justification in changing the overall score to a passing grade. In addition, the test was fairly administered in every respect to all candidates, including the provision in some questions that unless the entire question was correctly answered, no partial credit would be given. Thus, petitioner's contention that he should have received partial credit instead of no credit on several questions is without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order raising petitioner's grade on the physical diagnosis part of the May 1992 chiropractic licensure examination from 70.5 to 72.0 but denying his petition in all other respects. DONE and ENTERED this 4th day of January, 1993, at Tallahassee, Florida. DONALD R. ALEXANDER 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 4th day of January, 1993. Respondent: APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6162 1-2. Partially adopted in finding of fact 5. 3-4. Partially adopted in finding of fact 6. Partially adopted in finding of fact 7. Partially adopted in finding of fact 8. Partially adopted in finding of fact 9. Partially adopted in finding of fact 10. Partially adopted in finding of fact 11. NOTE: Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Vytas J. Urba, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Dr. James S. Moore P. O. Box 229 Doctor's Inlet, FL 32030 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0752
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to received a passing score on the June 2001 Dental Licensure Examination.
Findings Of Fact The Petitioner sat for the Dental Licensure Examination of June 2001. He failed to pass the clinical section of that examination and thus became an unsuccessful candidate for licensure. The June 2001 Dental Licensure Examination (Examination) consists of two parts, a clinical portion and a law and rules section. The clinical portion consists of nine procedures. The Petitioner challenged four of the nine procedures. The Department selects three examiners to independently grade each candidate's performance. The average of the three examiners' independent scores for each procedure produces the overall grade for that procedure under the Department's scoring methodology. The average grade for each procedure is then weighted pursuant to the requirements of Rule 64B5-2.013, Florida Administrative Code, which produces the overall score for the entire clinical examination. The Department allows for three examiner scores, rather than only one examiner scoring each procedure, because it provides a more reliable indication of the candidate's competency and a more accurate score. Each examiner must be a licensed dentist for a minimum of five years before becoming an examiner and must have no complaints or disciplinary actions recorded against his license. The examiners have no contact with the candidate and therefore have no knowledge of the identity of the person whose examination they are grading. Each examiner must attend and successfully complete a standardization session or course as well. This is designed to train each examiner to use the same internal grading criteria. In standardization, the examiners are taught specific grading criteria, which instruct them on how to evaluate the work of candidates. The examiners are accorded identity numbers for use in the examination and grading process. The examiners who graded the Petitioner's examination were examiners numbered 364, 083, 316, 366, 117, and 299. All of them successfully completed the above-described standardization session or course. The Petitioner contested the score he received on the Class II composite restoration procedure. He claims that the Department's instructions, as to the use of a dye material in the amalgam material used to fill a tooth, conflicted with the manufacturer's instructions, that is, the manufacturer of the restoration amalgam material and/or dye material. The Class II composite restoration procedure of the examination is a procedure involving the candidates' ability to fill an opening inside a tooth with a composite resin material which produces a "tooth colored" filling. This procedure also involves replacing a portion of the tooth. Based on the examiners' comments and grades, as well as the testimony of Dr. Charles Ross, the Petitioner failed to properly perform this procedure. The Respondent's expert witnesses Dr. Charles Ross, a licensed dentist practicing for 32 years, as well as Marsha Carnes, a psychometrician employed by the Department, explained that due to security reasons and fairness considerations, all candidates were instructed to place the dye material in the composite. All candidates thus had to contend with the use of the dye material and none was exempted from it. Dr. Ross has had over 12 years' experience working with the Dental Licensure Examination and has examined well over 1000 dental candidates. He established that, as to the manufacturer's instructions, candidates are not graded on a specific name brand material. Candidates are graded on their technique and how well they perform the required criteria. Therefore the manufacturer's instructions are not considered for grading purposes because no two manufacturers, or the materials they produce, are the same. Dr. Ross also established that the dye did not hamper the Petitioner's ability to perform this procedure. In fact, the Petitioner received a passing grade of 3.33 on the Class II composite restoration procedure. The Petitioner's Exhibit One does not support the Petitioner's argument that "the Department contravened the manufacturer's instructions as to the use of dye material." On the contrary, the Petitioner agreed that there are numerous manufacturers of dye material and how they use their materials varies from one manufacturer to another. The Petitioner contested the score he received on the Class II Amalgam preparation procedure claiming that since only one of the three examiners found caries (decay) in his preparation and the other two examiners did not comment on having seen caries, that this is an example of inconsistent grading. The Petitioner acknowledged that he still had caries in his preparation when he completed a "monitor to examiner note." In this note, which is permitted under the examination procedures, the Petitioner requested to "extend his preparation beyond ideal" in order to clear away remaining decay. He presented this note to the monitor of the examination who then, without revealing the candidate's identity, gave the note to the examiner for approval or disapproval. The monitor to examiner notes are used by a candidate to convey a message to the examiner through the monitor. The monitor, who is also a licensed dentist, does not render any grading. The monitor acts merely as a "messenger" between the candidate and the examiner, who must not know each other's identity. Although the monitor agreed with the Petitioner that decay remained, the monitor disagreed that the Petitioner needed to "extend his preparation beyond ideal." The monitor indicated his agreement by circling his identification number (318) and his disagreement by not circling his identification number. In other words, he agreed that decay was present but disagreed that the Petitioner needed to extend his preparation or the size or configuration of the "box" where the filling would ultimately be placed. The patient amalgam preparation procedure of the examination is a procedure that requires candidates to completely remove a caries lesion or decay from a section of tooth. Based on the examiners' comments and grades and the testimony of Dr. Ross and Dr. Jeffrey Metcalf, the Petitioner did not properly perform this procedure. Dr. Metcalf stated that he gave the Petitioner a grade of "1" for the patient amalgam preparation procedure because the Petitioner's "proximal box" had a very thin wall of enamel or severe undermining. This thin wall, according to Dr. Metcalf, will eventually crack and fracture upon pressure as the patient chews food or grinds his or her teeth. Although Dr. Metcalf saw the Petitioner's monitor note regarding decay, it had very little effect on how he graded the Petitioner. Dr. Ross established that the Petitioner had removed too much or more than enough dentin from the tooth on the Class II amalgam preparation procedure. The presence of adequate dentin is critical to provide a foundation or support for the enamel. Enamel must be attached to dentin, the bulkiest portion of the tooth, otherwise, the enamel will fracture. Concerning the caries, Dr. Ross established that caries may start out large and then the candidate removes caries until it appears as the size of a small dot. Upon Examiner 117's discovery of the caries, while simultaneously using the explorer (probe or pick) to "feel" for the caries, his instrument could have removed the small portion of the carious lesion remaining. Depending on the order in which each examiner graded the Petitioner on this procedure (not of record) it is possible that the next two examiners did not see the caries, if the first examiner through his probing with the tool had removed the caries by removing the discolored area it consisted of. Moreover, Dr. Ross established that even if Examiner 117 was not the first examiner to grade the preparation, the other examiners may have focused on other specific areas of the Petitioner's preparation and simply may not have detected the caries. This is not an unusual occurrence among examiners. Thus the fact that two of them did not record seeing the caries does not mean that they were not present. The psychometrician, Marsha Carnes, testifying as an expert in that area for the Department, explained that based on the monitor sheet, Examiner 117 specifically requested the Petitioner to "deepen the axial gingival line angle of the proximal box." In other words, Examiner 117, through the monitor, requested the Petitioner to remove the decay. The Petitioner acknowledged that he had caries by generating the monitor note in which he requested the authorization to "extend his preparation" in order to remove the caries. Both Dr. Ross and Ms. Carnes explained that examiners commonly "bubble-in" different comments for the same procedure. This is not unusual and is sometimes beneficial to the candidate. Further, when examiners grade an examination they grade holistically. In other words, they do not deduct points for different comments. Instead, examiners consider the model or the patient as a whole and render a grade based on what they learned in their standardization training. When three examiners observe the same model or patient procedure, it is expected that three people will render grades for different reasons. Further, if they render a grade of "2," "1," or "0" for the patient procedures, examiners are required to go a step further by completing a grade documentation sheet. Although the Petitioner's main focus on the Class II amalgam preparation led to lengthy testimony and argument on the caries issue, caries did not unilaterally determine the overall grade. The Petitioner's overall grade is a combination of all of the individual grades he received for all nine clinical procedures. Moreover, the "0" grade was not the only failing grade the Petitioner received on the Class II amalgam preparation. The Petitioner also received a grade of "1" from Examiner 366 for the same procedure. The Petitioner also contested the score he received on the preparation for a three-unit, fixed, partial denture procedure, claiming that he could not find the undercut as indicated by one of the examiner's comments. The preparation for a three-unit, fixed, partial denture procedure of the examination is a procedure that involves the candidate's ability to provide preparation of two teeth in order to replace a missing tooth with a fixed bridge. Based on the examiners' comments and grades and the testimony of Dr. Ross, the Petitioner failed to properly perform this procedure. Dr. Ross established that the Petitioner's work on this procedure resulted in one tooth, the cuspid, being slightly tilted away from the bicuspid. It is impossible to place a bridge on an improper preparation. Dr. Ross further stated that the Petitioner had a problem with this procedure because of the Petitioner's undercut. The undercut indicated that the Petitioner's preparation was not properly aligned to accept a bridge. Additionally, the Department's expert psychometrician witness, Ms. Carnes, explained that it is common for examiners to give identical grades, yet write down different comments on the same procedure. That does not mean an examiner has made a mistake. While they use the same grading criteria, examiners occasionally see different errors. The Petitioner has contested the score he received on the Endodontic procedure as well. An Endodontic procedure also known as a "root canal," involves removal of infected nerve tissue and blood vessels and pulp from a tooth. The candidate is required to access the canal and pulp tissue from the outside. He must then remove the affected nerve and cleanse the canal. Finally, the canal must be sealed to prevent recurring bacteria inside the tooth. In consideration of the examiners' comments and grades and the expert testimony of Dr. Ross, the Respondent has established that the Petitioner did not properly perform that procedure. Dr. Ross opined that the Petitioner failed to properly fill the canal. The Petitioner's access to the canal was not straight. Instead the Petitioner's access to the canal removed too much of the tooth on one side which resulted in weakening the structure of the tooth. This would cause the tooth to eventually fracture. Additionally, the Petitioner's gutta percha material (rubber-like material) was improperly left inside the chamber reamed out in the tooth in the root canal and nerve removal process. When a core is placed inside that chamber the gutta percha material left under it in the chamber can flex or move, which will force the core to move when the patient applies pressure, as, for instance, by chewing. Finally, the Petitioner failed to adequately seal the apical end of the root canal at the apex of the canal space or a maximum of one millimeter above the apex. The Department allows for a "re-grade" process. The purpose of the regrading process is to give all candidates who request a re-grade another chance at passing the examination. In other words the Department thus seeks to determine whether any grades rendered were inconsistent or inaccurate. The Department selects the top three examiners, who had the highest reliability from that examination, to participate in the re-grading process. The Department's post-standardization statistics of the examiners' performance indicated that the Petitioner's examiners graded reliably. The post-standardization statistics indicate the examiners' performance on grading of models during standardization. Additionally, the Department calculates post- examination statistics, which are as follows for the examiners who graded the Petitioner's challenged procedures: Examiners Accuracy Index & Rating #364 93.1 Very Good #083 95.7 Excellent #316 97.0 Excellent #366 (Metcalf) 94.0 Very Good #117 90.4 Good #299 89.5 Watch All the examiner's reliability was significantly above the minimum acceptable accuracy index of 85.0.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Board of Dentistry dismissing the Petitioner's challenge to the grades assigned him for the June 2001 Dental Licensure Examination. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 6th day of June, 2002. COPIES FURNISHED: Kristian L. Koszeghy 1731 Beacon Street Apartment 1103 Brookline, Massachusetts 02445 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 William H. Buckhalt, Executive Director Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
Findings Of Fact 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. 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. 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. 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. 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. 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." 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. 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. 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. 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. 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). 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. 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. 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. 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. 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. 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. 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. 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. 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." 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. 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. 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. 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. 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. 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. 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. 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. 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.)
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
