Findings Of Fact Petitioner applied to take the acupuncture examination given October 30 - November 3, 1984, but his application was not approved until he provided additional verification of his experience. By the time his approval was granted it was too late for the 1984 examination and he was advised to apply for the July 1955 examination which he did. In 1984 Petitioner was sent Applicant Information for Acupuncture Examination document (Exhibit 5) which indicates copies of Florida Statutes Chapters 389 and 457 and the rules applicable to each chapter are attached. Petitioner acknowledges receiving certain information but does not recall exactly what he received. When Petitioner re-applied to take the 1955 examination he received certain material from Respondent containing the statutes and rules from which the examination questions on Laws and Rules would be taken. Petitioner contends he received only the information contained in Exhibit 3 which consists of Chapter 457 Florida Statutes (1983) and Chapter 21AA Florida Administrative Code. After taking the examination and finding unfamiliar questions in Part I of the examination, Petitioner discovered the documents from which he studied did not have applicable provisions of Chapter 389 and rules pertaining thereto in Chapter 10D-81 Florida Administrative Code. When he subsequently learned he had failed Part I of the examination Petitioner, on October 10, 1985, went to Tallahassee to check on his examination grade and to complain that he did not receive the two pages containing Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code. Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code, which Wang did not study for the examination, consist of two pages with both sides of each page containing information and are pages 643 and 644, Florida Statutes (1981) and pages 525 and 526 Florida Administrative Code. On Part I of the examination Wang missed three of five questions taken from page 643, three out of eight questions from page 644, five out of eight questions from page 525 and four out of ten questions from page 526. Part I consisted of fifty questions and of those fifty questions Wang missed fifteen from the statutes and rules he did not study for the examination. Clearly his failure to study those pages was the primary cause of Wang receiving a failing grade of 66 on Part I of the examination. Ann Mayne is Administrative Assistant to The Board of Acupuncture and two other boards. She is the only one who mails out material to applicants and in her absence requests for such material are held pending her return. In October 1985 when Petitioner went to Tallahassee Ms. Mayne was on vacation. Petitioner first went to the Department of Professional Regulation and was referred to the acupuncture office in an adjacent building. There he contacted a clerk who attempted to help him and gave him the two pages (Exhibit 4) he alleged he did not have. Ms. Mayne sends out all information to applicants for acupuncture license. She prepared the Application Information Sheet (Exhibit 5) and the copies of statutes and rules pertaining to acupuncture. Ms. Mayne keeps this information in a file cabinet with the pages separated so all of the same page are together. When she prepares an information package she goes through the file drawer and takes out one sheet from each of the divisions and thereby compiles a complete package. These sheets are not stapled together but are put in an envelope and mailed to the applicants. In 1985 Wang was not sent a copy of the information sheet (Exhibit 5) but Ms. Mayne put a note in his file that he had been sent the 1985 packet of laws and rules. Because there had been a change in Chapter 457 between the 1984 and 1985 examination she wanted to be sure a copy of these new provisions was sent to Wang. The copy Wang acknowledges he received (Exhibit 3) contains Chapter 457 Florida Statutes and Chapter 21AA Florida Administrative Code. If, as contended by Wang, the packet he received for the 1985 examination did not contain relevant portions of Chapter 359 Florida Statutes and Chapter 10D-81, Florida Administrative Code, the packet he received in 1984 did contain those sections and there was no change in those laws and rules between the 1984 and 1985 examinations.
The Issue At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task 4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis. Dr. Densmore admitted that many doctors order these tests as a general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur." The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response, intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received. Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of 70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2002. COPIES FURNISHED: Ken Allan Niebrugge 4785 Barkley Circle No. 22 Fort Myers, Florida 33907 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint issued October 2, 2006, and, if so, the penalty that should be imposed.
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: The Department is the state agency responsible for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Falowski was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 5108. Dr. Falowski was first certified in Florida to practice chiropractic medicine in 1986. Dr. Falowski also is certified to administer propriety drugs. At the times material to this proceeding, Dr. Falowski did business as Rainbow Rehabilitation, and his address of record was 4201 North State Road 7, Lauderdale Lakes, Florida 33319. On or about August 25, 2997, Dr. Falowski submitted an application for acupuncture certification to the Department. He paid a fee and was certified to take the acupuncture certification examination. His application reflects that he completed 105 hours of acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in November 1997, but he did not pass the examination. On or about April 15, 1998, Dr. Falowski submitted a second application for acupuncture certification to the Department. He paid a fee and was again certified to take the acupuncture certification examination. His application reflects that he completed acupuncture training at the University of Miami. Dr. Falowski took the acupuncture certification examination in May 1998 and attained a passing score. On or about July 7, 1998, the Department mailed an Examination Grade Report to Dr. Falowski, advising him that he had passed the chiropractic certification examination for acupuncture. A Request for Registration Form for the Board of Chiropractic Medicine was included with the Examination Grade Report, and the instructions stated that the form and a check or money order must be returned to the Department within 45 days. The form listed a $100.00 fee for the Chiropractic Acupuncture Certification. There is nothing in the records of the Department indicating that it received the Request for Registration Form or check in the amount of $100.00 from Dr. Falowski, nor do the records reflect that Dr. Falowski has been issued an acupuncture certification.4 On or about December 28, 2005, writing was observed on the window of the Rainbow Rehabilitation office which stated: WE DO PHYSICALS & BLOOD WORK LICENSED ACUPUNCTURE EKG No acupuncture license number was listed on the window. Dr. Falowski intended to perform acupuncture treatments for any member of the public who requested these treatments at Rainbow Rehabilitation.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order Finding that Francis J. Falowski, D.C., offered to practice acupuncture when he was not certified to do so, in violation of Section 460.413(1)(t); Imposing an administrative fine against Dr. Falowski in the amount of $5,000.00; and Placing Dr. Falowski on probation for a period of two years, under such terms and conditions as the Board deems appropriate. DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 20th day of March, 2008.
Findings Of Fact Petitioner sat for the August 24, 1991 Optometry licensure examination. He did exceedingly well on two of the three portions of the examination. His grade on the clinical portion (sections 1 and 2) was 71.5. The minimum passing score was 75.0. Petitioner challenged the behavior of the examiners in section 2 of the clinical portion of the examination, and the grade he received for several individual procedures tested. Petitioner's patient for the clinical examination was his wife, Susan Vazoulas. Mrs. Vazoulas testified that prior to Petitioner entering the examination room for section 2 of the clinical portion of the examination, she overheard the two examiners, one male and one female, discussing material already on their clipboards. The male examiner indicated he had given an "81". The female examiner indicated she had given an "84", but was a "hard liner." Petitioner was not present during this exchange. Mrs. Vazoulas did not see what was on the examiners' clipboards and could not testify with any certainty as to what was being discussed. Every reasonable inference suggests that the examiners' conversation did not apply to Petitioner's section 2 clinical test for the following reasons: The examiners' comments were made before the Petitioner entered the examination room and before he began to take his section 2 clinical examination. The numbers "81" and "84" bear no relationship to any of Petitioner's scores on any portion of his licensure examination. The examiners for section 2 were not the examiners for section 1, whereon Petitioner scored 100%. If anything, had the examiners reached two divergent scores of 81 and 84, respectively, it would more likely suggest the presence of independent judging and the lack of collusion, instead of the presence of collusion and absence of independence as assumed by Petitioner in this instance. The examination room in which section 2 of Petitioner's clinical examination was administered was very small, approximately 8 x 10 feet. During section 2, the two examiners separately viewed each of 16 procedures performed on Mrs. Vazoulas by Petitioner and after each procedure, they individually returned to their respective clipboards to record their scores. The two clipboards were placed on a countertop side by side while not in use. Petitioner and Mrs. Vazoulas each observed the examiners separately marking their respective clipboards but never saw what was written down by either of the examiners. Petitioner and Mrs. Vazoulas felt it would have been hard for each examiner to avoid seeing the score assigned by the other examiner, but neither Petitioner nor Mrs. Vazoulas observed any actual sharing of information or scores during Petitioner's section 2 clinical examination or afterwards. Petitioner and Mrs. Vazoulas testified in terms of the examiners having "the chance" to see each other's clipboard and "the opportunity" for collusion and absence of independence in grading. In this instance, Petitioner considered that identical grades given by both examiners was proof of their collusion and arbitrary and capricious grading. However, similarity of scores is equally susceptible of being interpreted as resulting from each examiner having observed the same performance by Petitioner on each of the 16 procedures and applied the same judging criteria to what s/he saw. The law does not presume illicit behavior without more evidence than that it "could have" happened. Petitioner challenged his section 2 grade for clinical procedures 4-9 for biomicroscopy, alleging that he was graded 17.5 out of a possible 20 points while all parts were checked "yes". In fact, the score sheets show that all parts were not checked "yes" by both examiners. One examiner graded procedure four with "N" for "no". This could result in an "all or nothing" score of zero for that item. Assuming, arguendo, the "yes" and "no" were averaged, Petitioner's score still would not have amounted to the additional 2.5 points Petitioner alleged he was entitled to out of this section of the examination. Respondent's Exhibit 2 is a document titled "Optometry Practical Examination Section 2 - Grading Standards August 1991." The instructions to the examiners state in the second paragraph of that document, "Comment on reason for any NO judgment. Comment if performance was a marginal YES." Thus, examiners could legitimately insert comments even where they responded "yes" in evaluating the performance of the candidate in a given procedure. They did so here. Petitioner challenged his grade on procedure number 15, gonioscopy, stating that partial credit should have been given for the showing of the proper angle. Petitioner's Exhibits 1 and 2, the grade sheets for section 2, reflect that Petitioner received no credit from either examiner. Both "no" responses have comments recorded next to them. Respondent's Exhibit 2, page 4, states the criteria for a "yes" response on procedure number 15, gonioscopy, as: Must be focused on nasal angle with proper illumination Gives proper response to question Both criteria must be satisfied to receive a "yes" response. Petitioner and Respondent concur that Petitioner correctly demonstrated the angle required in procedure 15, gonioscopy, which satisfied one of the two required criteria to receive a "yes" from either examiner. Petitioner attempted, by extrapolation of procedure 5, to show that the remaining criterion was also met. He was not persuasive in this attempt. The grade sheets reflect that Petitioner failed to satisfy the second criterion: to give the correct response to the question posed. Petitioner made no valid showing that he did answer the question correctly or that the points available from this answer would raise his total score 3.5 points for a passing grade. Petitioner challenged his grade for procedure number 1, binocular indirect ophthalmoscopy (BIO). Petitioner admitted that he did this procedure incorrectly by using the 3:00 o'clock position, rather than the 9:00 o'clock position requested by the examiners but felt six points should not have been deducted and it should have been marked "yes, marginal," awarding him a majority of the six lost points. Petitioner did not demonstrate good cause within the grading criteria in evidence why he should have received the "majority," presumably four, points. Petitioner presented no evidence concerning the grading of challenged procedures 11 and 14. As to all of the foregoing, Petitioner's challenge to the effect that he did not understand the grading system was not sufficient to carry his burden of proof to establish that the examination, scoring, and/or grading system was arbitrary or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Professional Regulation enter a final order ratifying the examination grade previously assigned to Petitioner. DONE and RECOMMENDED this 15th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2205 The following constitute specific rulings, pursuant to S120.59 (2) F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: None filed Respondent's PFOF: 1-6 Accepted except for unnecessary, subordinate on cumulative material. 7-13 Accepted except for subordinate material. It is noted that Petitioner bears the burden of proof herein, not Respondent. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 George L. Vazoulas 182C Chestnut Ridge Drive Harrisonburg, VA. 22801 Diane Orcutt, Executive Director Department of Professional Regulation, Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues for resolution, as provided in an Order Finding Probable Cause dated March 11, 1992, are whether Respondent, as a member of the State Board of Acupuncture: violated section 112.313(7)(a), F.S., by having an employment or contractual relationship with The Healing Center which created a continuing or frequently recurring conflict between his private interest and the performance of his public duties; and violated section 112.3143(2), F.S. by voting on a measure which inured to his or his wife's special private gain without disclosing the nature of his interest in the matter.
Findings Of Fact Harvey Kaltsas served on the Board of Acupuncture from February, 1987 through April 3, 1991. As a member of the Board of Acupuncture, his duties included regulation of the practice of acupuncture, and the promulgation of rules to implement Chapters 455, 457, and 120, Florida Statutes. Mr. Kaltsas has been a licensed acupuncturist in the State of Florida since 1984, and was registered as an apprentice prior to licensure. Since 1989, Harvey Kaltsas has been married to Cynthia O'Donnell, who is the sole officer and shareholder of a business, The Healing Center, Inc., which was incorporated in April of 1989. In addition to providing other health services, The Healing Center, Inc. has sold sterile, disposable acupuncture needles since October, 1990. Gross sales of needles have averaged one to two thousand dollars per month from October 1990 until the present. Harvey Kaltsas was not and is not a shareholder or stockholder in The Healing Center, Inc. Harvey Kaltsas has had no interest in The Healing Center, Inc. At all times pertinent to the complaints at issue, The Healing Center, Inc. was located at 430 North Tamiami Trail, Suite C, Sarasota, Florida 34236. The lease for such property remained in the name of Harvey Kaltsas during this period. Although Harvey Kaltsas was ultimately responsible for lease payments on the property, lease payments were made by The Healing Center, Inc. to the landlord. Harvey Kaltsas, as well as other tenants of the property, paid rent to The Healing Center, Inc. The utilities account for the leased property was in the name of Harvey Kaltsas. Although he was ultimately responsible for utilities payments, such payments were made by The Healing Center, Inc. From April, 1989 through December 1990, Harvey Kaltsas was both a tenant of and an independent contractor with The Healing Center, Inc. As a tenant, Mr. Kaltsas paid rent of approximately $300.00 per month to The Healing Center, Inc. As an independent contractor, Mr. Kaltsas performed thermographic examinations on several patients of The Healing Center, Inc. These services were performed from time to time on an ad hoc basis. For these services, Mr. Kaltsas received $3625.00. No contract existed between Mr. Kaltsas and the Healing Center, Inc., regarding performance of these services. Other individuals provided similar thermographic services. On January 1, 1991, Harvey Kaltsas became a salaried employee of The Healing Center, Inc. At the time he vacated his seat on the Board of Acupuncture in April 1991, he was still a salaried employee of The Healing Center, Inc. On December 14, 1990, Harvey Kaltsas moved for consideration of, and voted for, an amendment to Rule 21AA-8.002, Florida Administrative Code, which would have required all licensed acupuncturists in the State of Florida to use only sterile, disposable acupuncture needles. The matter had been raised in an earlier meeting of the board by Luis Celpa, another acupuncturist member. The proposed amendment to Rule 21AA-8.002, Florida Administrative Code, was noticed and published in the Florida Administrative Weekly on February 15, 1991 (Vol. 17, No. 7, p.645). The proposed amendment deleted existing language with regard to sterilization procedures and substituted language requiring disposable needles for one-time use only. The proposed ruled was subsequently withdrawn by the Board of Acupuncture and never became effective. The Joint Administrative Procedures Committee challenged the authority for the rule since Chapter 457, F.S. provides for resterilization of needles. Prior to voting on the measure to amend Rule 21AA-8.002, Florida Administrative Code, Mr. Kaltsas did not disclose to the Board of Acupuncture his interests in or relationship with The Healing Center, Inc. On or about March 7, 1991, The Healing Center, Inc. mailed a letter signed by Cynthia O'Donnell-Kaltsas to licensed Florida acupuncturists advising them of the proposed rule change requiring the use of sterile, disposable needles and offering such needles for sale at a discounted price. Ms. O'Donnell was aware of the board's action, and the letter was mailed after publication of the proposed rule change in The Florida Administrative Weekly. After the rule was withdrawn Ms. O'Donnell sent a follow up letter stating that the rule did not go through and apologizing for any misinformation. Even though she does not use the husband's name, Ms. O'Donnell signed the letters, "O'Donnell-Kaltsas", as her husband had been president of the Florida Acupuncture Association and she was raising money for the association with a 2 percent contribution from needle sales. There are a significant number of potential vendors offering sterile, disposable needles for sale to Florida practitioners of acupuncture. There are a minimum of at least fifteen such vendors in Florida, as well as a minimum of eleven practitioners who sell needles. In addition, Chinese practitioners have direct access to needle suppliers in China from whom they can purchase needles. Florida practitioners receive solicitations from needle vendors across the country and from needle vendors located in Canada, England, Taiwan and Hong Kong. There are no barriers to interstate sale and shipment of needles into the State of Florida by any company or person. The Board of Acupuncture does not regulate the sellers of acupuncture needles. No barriers to entering this market have been established by the Board of Acupuncture. The Board does not license persons or entities which sell needles, nor does it inspect facilities of such persons or entities. The Board does not regulate the types of needles which can be sold, nor does it subject sellers of needles to any kind of disciplinary action. For all intents and purposes, Mr. Kaltsas and his wife maintain separate financial identities. They maintain separate bank accounts, with the exception of a $30.00 credit union account. They do not have signing privileges on each other's banking accounts. In business transactions involving The Healing Center, Inc., Mr. Kaltsas did not receive any special consideration with respect to the amount of rent or with respect to making of rent payments. Although the couple resides in a house owned by Ms. O'Donnell, Harvey Kaltsas makes payments to her to offset the household expenses. There is no evidence that the vote of December 14, 1990 regarding the proposed attachment to Rule 21AA-8.002, Florida Administrative Code, inured to the special private gain of Mr. Kaltsas or to the special private gain of Cynthia O'Donnell. There is no evidence that any matter came before the Board of Acupuncture on a continuing or frequently recurring basis which created a conflict between Mr. Kaltsas' private interests and the performance of his public duties. The sterile, disposable needle rule was formally addressed on two occasions while Mr. Kaltsas was on the Board; it was approved by the Board on December 14, 1990; and it was subsequently withdrawn by the Board on April 3, 1991. Most acupuncturists use disposable needles already. The low cost of such needles compared to the cost of effective sterilization created a legitimate concern for the safety and welfare of the needle handlers and their patients. This concern, rather than any private interest or benefit motivated Harvey Kaltsas' action as a board member.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Harvey Kaltsas did not violate Sections 112.3143(2), Florida Statutes (1989) and 112.313(7)(a), Florida Statutes, as alleged, and dismissing the complaints. DONE AND ORDERED this 31st day of August, 1993, in Tallahassee, Florida. MARY CLARK 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 31st day of August, 1993.
The Issue Whether Respondent, a medical doctor, practiced beyond the scope of his temporary certification and/or failed to notify the Board of Medicine of changes in employment, as Petitioner alleges; if so, whether (and what) disciplinary measures should be taken against Respondent's temporary license, which authorizes him to practice only in areas of critical need.
Findings Of Fact At all times relevant to this case, Respondent held a temporary conditional certification to practice as a medical doctor in an area of critical need ("ACN") within the state of Florida, having been issued license number ACN 313. Petitioner has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, Petitioner alleges that Respondent committed three such offenses. In the three-count Complaint, Petitioner charges that Respondent violated section 458.331(1)(g), Florida Statutes, "by failing to perform any statutory or legal obligation placed upon a licensed physician"; section 458.331(1)(v) by "practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform"; and section 458.331(1)(m) by "violating any provision of Chapter 458 or Chapter 456, or any rules adopted pursuant thereto." Respondent is certified to practice medicine pursuant to a Rear Admiral Leroy Collins, Jr., Temporary Certification to practice medicine only in ACNs that have been approved pursuant to section 458.315(3), Florida Statutes. A doctor certified to practice in an ACN receives a temporary certificate from the Board of Medicine pursuant to section 458.315, Florida Statutes. The certificate is temporary and conditional. Section 458.315(3) requires that an ACN certified physician practice in an ACN; a county health department; correctional facility; Department of Veterans Affairs clinic; community health center funded by section 329, section 330, or section 340 of the United States Public Health Services Act; or other agency or institution that is approved by the State Surgeon General and provides health care to meet the needs of underserved populations in this state; or for a limited time to address critical physician-specialty, demographic, or geographic needs for this state's physician workforce as determined by the State Surgeon General. Once issued, the certified ACN physician can practice in any Surgeon General approved area of critical need facility; however, within 30 days of accepting employment, the ACN physician must notify the Board of Health of all approved institutions in which the licensee practices and of all approved institutions where practice privileges have been denied. On or about September 24, 2008, Respondent submitted to Petitioner an application for temporary certificate to practice in an ACN. Respondent was notified via correspondence dated June 11, 2009, that his application was approved, and that he had been issued license number ACN 313. The June 11, 2009, correspondence summarily advised Respondent of the following conditions and limitations on his license: Your license limits your practice to Project Access Foundation Medical Clinics, 8000 Biscayne Blvd., Miami, FL 33188. Practicing with that limitation is a very important statutory and legal requirement. Notifying this office of your current specific practice location is equally important. Your license will expire on 1/31/2010. From June 11, 2009 through January 26, 2010, Respondent did not notify Petitioner that he had accepted employment at any medical facility. On or about January 26, 2010, Petitioner processed Respondent's ACN renewal application. In the "Financial Responsibility Form" included within the renewal application, Respondent checked the box that provides, "I do not practice medicine in the State of Florida." Nearby, Respondent wrote, "In this moment." Respondent's ACN license was renewed on or about January 29, 2010, and was valid through January 31, 2012. On or about November 17, 2010, the Agency for Health Care Administration ("ACHA") was notified that Respondent was acquiring 100 percent of the shares of stock for Global Rehabilitation Center, Inc. ("Global"). The undisputed evidence establishes that Respondent practiced medicine at Global. Respondent did not disclose this practice location to Petitioner until September 2012, during the course of an investigation. At that time, Respondent divulged that he had worked at Global for approximately two years. It is further undisputed that, at the time Respondent acquired Global, and all material times subsequent, Global was not an ACN approved facility. Respondent never applied to have Global placed on the ACN approved facility list. Respondent practiced medicine at another facility, Policlinico Pastorita, Inc. ("Policlinico"), from August 2009 to the present. Respondent first notified Petitioner of this practice location on or about January 10, 2012, as part of his renewal package. Policlinico did not become an approved ACN facility until October 8, 2012. The undisputed evidence established that Respondent also practiced medicine at Injury Rehabilitation Center, Inc.2/ Said facility was never an approved ACN facility. Respondent did not notify Petitioner of this practice location until September 2012, during the course of an investigation. On May 18, 2011, Archy's Diagnostic Center was approved as an ACN facility. On or about January 23, 2012, Respondent, as part of his license renewal process, advised Petitioner that his current practice location was Archy's Diagnostic Center. Respondent, in his PRO, makes the following concessions: (1) that he failed to notify the Board of Medicine within 30 days of accepting employment at either an ACN approved or non-approved facility; (2) that he failed to use his ACN temporary certificate to work exclusively at ACN-approved facilities; and (3) that he did not comply with sections 458.315(4)(a), 458.331(1)(g), and 458.331(1)(v). Respondent, in mitigation, contends that he never attempted to evade the reporting requirements. Respondent testified that he initially believed Policlinco was an ACN approved facility because of the demographics of the practice and because the owner advised him that he could practice medicine at that facility. On this point, Respondent further testified as follows: "[B]ut I ignored, I didn't know that I had to report myself to Tallahassee to the health department but later on I learned that I had to do that." Concerning Global, Respondent testified that apparently he just forgot about the requirements of ACN approval or never thought of the requirements. The undersigned finds Respondent's testimony that he was unaware of the reporting requirements of his ACN license is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating section 458.331(1)(g), (v), and (nn); and imposing the following penalties: a two-year suspension, a $1,000.00 administrative fine, and a one-hour lecture on the reporting requirements of a temporary certificate for practice in areas of critical need. DONE AND ENTERED this 13th day of January, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2014.
Findings Of Fact Petitioner William Huang received training in acupuncture at the Chinese Acupuncture Science Research Foundation in Taiwan, China, and has practiced acupuncture for ten years, seven and a half of which have been in Florida. In August of 1981, petitioner submitted to the Department of Professional Regulation his Application for Acupuncture Examination. The Application form requests the applicant to check one of two alternative methods of qualifying for the examination: by education or by Florida apprenticeship or experience. Petitioner checked the box for "by Florida apprenticeship or experience." As of the dates of the hearing in this proceeding, petitioner had not been notified by the DPR as to whether or not he had been approved as qualified to take the examination. The examination is tentatively scheduled to occur on December 18 and 19, 1981. It was the opinion of Mr. Huang that only ten percent of the practicing acupuncturists today utilize the traditional Oriental method of diagnosis. One of the challenged rules, Rule 21-12.06(4)(a), assigns a thirty-five percent weight to the diagnostic techniques and procedures portion of the practical examination. Prior to 1980, there were no statutes or promulgated rules specifically relating to or governing the practice of acupuncture in Florida. While a rule had never been promulgated with respect to the field of acupuncture, the Florida Board of Medical Examiners had taken the official position that acupuncture is the practice of medicine. Prior to October of 1974, it was this Board's position that the performance of acupuncture should only be done by licensed medical doctors and doctors of osteopathy. Believing that legislation was imminent to allow nonlicensed persons skilled in acupuncture to perform under the direct and responsible supervision of licensed M.D.'s and D.O.'s, the Board of Medical Examiners altered its policy to reflect the same. By memorandum dated October 8,1 974, the Board issued its "Statement on Acupuncture" to be as follows: . . . to allow skilled unlicensed persons to perform acupuncture provided this is done under the responsible and direct supervision of licensed M.D.'s. This means that the non-licensed person who performs acupuncture is employed in the office of the licensed M.D. and is working in the office of the licensed M.D. and the licensed M.D. should be on the premises when acupuncture is performed. This is analogous to the Physician's Assistant who only functions under the responsible supervision of his employing physician. This does not mean that a licensed M.D. should put nonlicensed personnel out in satellite offices away from his main office performing acupuncture. A licensed M.D. should be in each office in which acupuncture is being performed. It must be remembered that the licensed M.D. is responsible for the acts and performances of any unlicensed persons within his office and in his employ regardless of the tasks or procedures performed by the unlicensed person and; therefore, this Board holds the licensed M.D. responsible for seeing that the intent of this ruling on the performance of acupuncture is carried out. . . . Effective October 1, 1980, the practice of acupuncture became specifically regulated by the enactment of Chapter 80-375, Laws of Florida. This was codified as Chapter 468, Part VIII, Florida Statutes (1980), and was amended by Chapter 81-227, Laws of Florida, effective July 2, 1981. In order to become certified to practice acupuncture under the new statutes, the applicant must furnish satisfactory evidence to the DPR that he has either: Completed a two-year program of education in acupuncture in a school or college approved by the Department; or Completed two years in an apprenticeship program . . .; provided that prior to July 1, 1981, a full-time and continuous practice of acupuncture under Chapters 458 or 459 may be substituted on an equivalent basis for all or part of the two-year apprenticeship program approved by the Department. and he must past an examination administered by the Department. Section 468.323(2), Laws of Florida. There being no Board of Acupuncturists established yet, the administration and implementation of Chapter 468 relating to acupuncture is presently being performed by the respondent's Division of Professions. Currently, that office conducts an initial review of the applications to qualify for the acupuncture examination and then the respondent's Office of Investigative Services verifies the information submitted on the application regarding the supervision of the applicant by a licensed physician and the duration thereof. This function was performed by the Office of Investigative Services by requesting the physician named on the application to sign a sworn affidavit that he or she holds a current active Florida license and that From 19 through 1981, the doctor personally knows that the applicant rendered acupuncture treatments to patients and all of these acupuncture treatments were administered under the direct supervision and control of the above-named licensed doctor. Noting that there had been confusion on the part of supervising physicians concerning the term "direct supervision," the investigators performing the function of obtaining affidavits and verifying signatures were instructed by memorandum dated September 24, 1981, as follows: It is necessary that the supervising physician for the purpose of clarification and understanding be informed that as a minimum, direct supervision means that the non-licensed person who performs acupuncture is employed by the licensed M.D. and is working in the office of the licensed M.D. and the licensed M.D. should be on the premises when acupuncture is performed. A licensed M.D. should be in each office in which acupuncture is performed. For the December 1981 acupuncture examination, the respondent received approximately 210 applications. About 125 applicants were determined to have not met the qualifications. At the time of review of these applicants and as of the time of the hearing in this matter, DPR had not yet approved any schools or colleges with programs of education in acupuncture, nor had the Department made a determination that any specific school or college met the criteria for approval of schools listed in its Rule 21-12.08, Florida Administrative Code. Of the some 41 applicants who attempted to qualify by two-years of experience under the supervision of a licensed physician, some 22 applicants have been approved as qualified to take the examination. Those were approved by the respondent on the basis of a completed, verified application form and the affidavit from the licensed Florida physician.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is ORDERED that the petitioner has failed to demonstrate that Rules 21-12.02(2)(b), 21-12.05 or 21.12.06, Florida Administrative Code, constitute the invalid exercises of delegated authority or that the challenged affidavit constitutes a "rule" within the meaning of the Administrative Procedure Act. Accordingly, the petition seeking an administrative determination of those rules and affidavit is DISMISSED. DONE AND ENTERED this 11th day of December 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 11th day of December 1981. COPIES FURNISHED: R. Jeremy Solomon, Esquire Booth & Conner Building A 325 John Knox Road Tallahassee, Florida 32303 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation Old Courthouse Squire Building 130 North Monroe Street Tallahassee, Florida 32301 Liz Cloud, Bureau Chief Administrative Code Section Department of State 1802 The Capitol Tallahassee, Florida 32301 Michael A. Glean Box 3666 St. Augustine, Florida 32084 and Box 28306 Atlanta, Georgia 30328
The Issue The issue for consideration in this hearing was whether Petitioner should be granted additional credit for one or more of questions number 41, 44, 70, or 72 of the National Council for the Certification of Acupuncture, (NCCA), multiple choice examination administered on May 18, 1991.
Findings Of Fact Petitioner, Aaron Benjamin sat for the May 18, 1991 NCCA acupuncture certification examination administered by the Department of Professional Regulation and achieved a passing score on the clean needle technique portion of the examination. However, he received a score of 69 on the written portion of the examination for which a score of no less than 70 was passing. Thereafter, Petitioner challenged four of the written questions on the exam; questions number 41, 44, 70 and 72, alleging that in each case, the question was worded in such a manner as to allow for more than one correct response and that his response, different from the accepted response, was also correct. This allegation was made notwithstanding the written examination instruction that there was "one and only one correct choice for each question." In his challenge, Petitioner also asserted that the examination instructions provided by the NCCA did not limit the textbooks which might be used for preparation for the examination. He claimed that many of these texts encompassed different philosophies of traditional Chinese acupuncture. By the same token, he alleged, the NCCA also did not specify which school of acupuncture should be referenced when answering the challenged questions. There are numerous different acupuncture texts available for reference which are written through different schools of acupuncture and which represent the differing philosophies of acupuncture practitioners. Utilization of differing schools and differing philosophies could affect an examinee's answer choice. Petitioner also asserted as a defect in the examination process the fact that he received his copy of the examination preparation booklet only two weeks prior to the examination rather than the 30 days which should have been provided. He raised these complaints to officials of both the Board of Acupuncture and the NCCA without success. Question 41 in issue reads: If a patient comes to you with a swollen puffy face and complains of scanty urination, which of the Zang-Fu would you first suspect to be disordered? Lung Kidney Spleen Urinary Bladder Petitioner answered this question with "3 - Spleen" while the Department's answer was "1 - Lung." He claims the question does not specify whether the diagnosis of the patient's condition should be from the beginning of the condition or at the time of examination. He asserts, however, that the spleen is an organ with which this condition may be associated since the accumulation of fluid in the interiors causing edema (swelling) is a syndrome of the spleen and incontinence of the urine also relate to that organ. On the other hand, as indicated by the Department's expert, the lung dominates the vital functions of the entire body and greatly influences all its functional activities. It controls and disperses all fluid in the system. The accumulation of water in a patient with a puffy face and scanty urination, therefore, comes from the lung which is responsible for dispersion of water which might, originate from the spleen. Consequently, "Lung" is the correct answer. Question 44 in issue reads: Bouts of dizziness that continue when a patient lies down are attributed to: deficiency excess heat cold Petitioner answered this question with "1 - deficiency", claiming that either excess or deficiency could result in a patient remaining dizzy after lying down. He asserts the wording on the examination question does not provide sufficient information regarding the syndrome to allow the examinee to differentiate whether an excess or deficiency syndrome resulted in the patient's condition. He claims that if an individual suffered from a deficiency syndrome, and the body energy did not stabilize after the patient reclined, the dizziness would continue. The Department's expert notes that the correct answer is "2 - excess" because in a deficiency syndrome, the vital energy, when one lays down, will come back. With an excess, however, even if one lays down, the excess will not go away. Dr. Celpa admits, however, that in western medicine, Petitioner's answer would be correct. However, in traditional Chinese medicine, which deals in philosophy (theory), one has to accept the specifics given by the Chinese. The correct answer, for the purposes of this examination is, therefore, "2 - excess." Question 70 in issue reads: A tight and forceful pulse could indicate: Damp of the Spleen and Stomach. hyperactivity of the Yang of the Heart. penetration of Cold into Liver Channel. Yin deficiency of the Heart. Petitioner answered "1 - Damp of the Spleen and Stomach, while the Department's correct answer was "3 - penetration of Cold into the Liver Channel." He notes that cold is indicated by a slow pulse and penetration of cold into the liver channel is indicated by a deep, wiry and slow pulse. A forceful pulse, he claims, can sometimes mean an accumulation of dampness in the spleen and stomach not allowing the body to metabolize food for distribution to other organs. If one has damp one has an accumulation. Petitioner answered as he did because of the study guide definitions. The study guide directs the examinees to use its definitions and there was no word for forceful included therein. Dr. Celpa, on the other hand, contends "a penetration of cold in the lower channel" is the correct answer as asserted by the NCCA. Most written authorities on the subject indicate that a tight and forceful pulse relates to the liver. Included in these authorities are The Web That has No Weaver; Fundamentals of Chinese Medicine; Acumoxa; and Pulse Diagnosis. Therefore, he concludes that cold in the liver is the closest answer. He asserts, contrary to claims of the Petitioner, that the definition page contained in the examination packet contains all one needs to take the examination. The packet is put together by the Board of Acupuncture and directs definitions outlined in The Web That has No Weaver be used. This gives little room for error. Nonetheless, he admits this question should have more information available in it to assist the examinee and is a poor question. Question 72 in issue reads: Which of the following will cause a foul or offensive smell of the discharge or excretion? Damp disorder combined with Cold. Damp disorder without Cold. Heat disorder of the Xu (deficiency) type. Heat disorder of the Shi (excess) type. Petitioner's answer to this question was "1 - Damp disorder combined with Cold", and the correct answer, as indicated by the Respondent was "4 - Heat disorder of the Shi (excess) type." Petitioner's answer was based on the statement in Traditional Chinese Medicine to the effect that where there is damp there is odor. There is no reference therein to damp heat, so, looking at the remainder of the authoritative statement, he concluded that dampness is associated with odor. On the other hand, Dr. Celpa indicated Petitioner's answer is wrong because damp is not necessary for odor. The heat disorder is the primary one giving an offensive odor. The Shi type adds to it. While damp could have a foul odor, the heat (Shi (excess)) is the only one which gives the discharge. All of the possible answers show something wrong, but the association of heat and excess best meets the test. Consequently, Petitioner's answer could not be correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Board of Acupuncture denying Petitioner's request for additional credit. RECOMMENDED this 28th day of September, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-926 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted as an accurate description of the thrust of Petitioner's complaint. Accepted. Accepted and incorporated herein. Accepted as Petitioner's justification for his answer but rejected as appropriate authority. Accepted as an accurate description of Petitioner's answer and the correct answer, and as Petitioner's justification for his answer, but rejected as appropriate authority. Accepted and incorporated herein. Accepted as an accurate description of Petitioner's justification for his answer and as a restatement of Respondent's position, but rejected as appropriate authority. Accepted and incorporated herein Accepted as Petitioner's justification for his answer but rejected as appropriate authority. FOR THE RESPONDENT: 1. - 11. Accepted and incorporated herein. COPIES FURNISHED: Arthur J. Springer, Esquire 215 Verne Street, Suite A Tampa, Florida 33601 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Acupuncture 1940 North Monroe Street Tallahassee, Florida 32399-0792
