The Issue Whether petitioner should have been awarded a passing grade on the clinical portion of the September 1990 optometry licensure examination?
Findings Of Fact As instructed, petitioner reported for the clinical portion of his optometry licensure examination with his own retinoscope. But the patient he brought with him was not suitable (as a subject for another candidate) because neither of her eyes had spherical objective and subjective error cali- brated in minus cylinder form within +6.0D to -6.0D and . . . an astigmatic correction objectively and subjectively within +0.75 to +4.0D or -0.75 to -4.0D. Respondent's Exhibit No. 1. Once this was discovered, petitioner left the examination site, recruited another patient, and returned in time to take the examination with a group of about ten other applicants. An information pamphlet explained beforehand what the candidates would be asked to do during the clinical examination: . . . You will be allowed 35 minutes to com- plete this section. Two licensed optometrists will independently observe and grade you. You may conduct the specified procedures in any appropriate order. A blank sheet of paper will be provided to you to record the results of your examination. You are allowed a brief period of time to make notes on the blank sheet of paper before you enter the examination room. Tests should be done on both eyes (including dilated eye). Points will be assigned according to the criteria listed below: Patient History (5 points) Chief complaint Personal medical history Personal ocular history Family medical history Family ocular history Follow-up Information (7 points) Follow-up as necessary on the above criteria. Visual Acuity (2 points) Pupillary Examination (6 points) Pupil size Direct and consensual response to light Afferent Pupillary Reflex Confrontation Fields Test (4 points) Confrontation Fields test should be done as described in Duane, J.D. Clinical Ophthal- mology, Harper and Row. Extra-ocular muscle balance (4 points) Versions Distance cover test Objective examination (retinoscopy) (8 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. Subjective refraction (12 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. In the second section, you will examine your own patient's eyes. This portion will be graded by examiners different from the exam- iners of Section 1. They will give you direc- tions and request certain views of the eye or ask for information as observe your performance through a teaching arm on the slit lamp or a teaching mirror on the BIO. They will assign grades independently. You will be asked to do the following procedures according to the specified criteria: Binocular indirect ophthalmoscopy (15 points) Accurately views and evaluates retinal land- marks as requested. Five points will be given for each of the three areas. Note: Patient will be in reclined position during this pro- cedure. We will supply a Keeler BIO headset. However, you will be allowed to use your own BIO if it has attached teaching mirrors. Biomicroscopy (anterior segment) (16 points) Demonstrates requested view of anterior struc- tures of the eye. Four points each will be given for performance related to: Cornea Anterior chamber Lens Anterior vitreous Goldman[n] tonometry (5 points) Accurately measures intra-ocular pressure. Biomicroscopy (posterior segment) (8 points) Accurately views and evaluates posterior pole landmarks as requested with two points each for four designated areas. Note: The Zeiss slit lamps are equipped with Hruby lenses. If you prefer a fundus contact lens, or a 90 diopter lens, you must provide your own lens. Gonioscopy (8 points) Accurately views and evaluates angle structure. To protect the patient, we will put time limits on the amount of time you will have to attempt each of the section two procedures. Timing will start after you receive the instructions from the examiner and will continue until you notify the examiner to grade the procedure. Respondent's Exhibit No. 1. After petitioner's return with a patient whose eyes met the examiners' criteria, he was tested in the manner the candidate information booklet had described, which is the same procedure that has been followed since 1986. Refractions Robert Roos, a 43-year-old compound myopic astigmatic (who was assigned the number 079), was the patient it fell to petitioner to examine in section one. Before petitioner saw Mr. Roos, three licensed optometrists independently evaluated Roos' eyes. After objective refraction or retinoscopy of his right eye, they recorded astigmatic orientation or axis values of 110o, 115o and 116o, spherical values of -2.75, -2.5 and -1.75 diopters, and cyllindrical values of - 1.0, -1.75 and -1.75 diopters. Their subjective examination of the same eye yielded axis values of 107o, 110o and 111o, spherical values of -2.25, -2.25 and -1.75 diopters, and cyllindrical values of -1.5, -1.5 and -2.0 diopters. After the examiners' retinoscopy and subjective refraction, but before the candidates evaluate the patients, their left eyes are dilated with drops containing 1.0% tropicamide and 2.5% neosynephrine, the same solution that has been used since 1983. The result is left-eyed cycloplegia, paralysis of the intraocular muscle which precludes normal pupillary response of the kind petitioner observed (and reported as +4) in Mr. Roos' right eye, just before performing the refractions. (Patients' left eyes are dilated so candidates can perform other procedures.) As required, petitioner performed his own objective refraction with a retinoscope. He reported an astigmatic orientation of 105o, assigned a spherical value of -0.75 diopters, and put the cylindrical value at -2.25 diopters, for Mr. Roos' (undilated) right eye. After subjective evaluation, he reported a prescription he said effected a correction to 20/20 (a claim no examiner had occasion to evaluate), an axis value of 100o, a spherical value of -1.25 diopters and a cylindrical value of -2.0 diopters. In keeping with the grading protocol applied evenhandedly to all candidates, petitioner's evaluations were compared, item by item, to those of the examiner who most nearly agreed with his conclusions. This yielded discrepancies of 5o, 1.0 and 0.5 diopters for the retinoscopic or objective refraction results; and of 7o, 0.5 and 0.0 diopters for the subjective results. In no case did his results fall between differing examiners' results, although he agreed with one examiner on one result. Petitioner received two points for the objective refraction portion of the test and three points for the subjective portion. Chamber Depth For section two of the clinical portion of the test, Mr. Roos returned to the candidate with whom he came to the examination, and petitioner turned to the eleventh-hour recruit who had accompanied him. Reading the prescribed script, an examiner instructed petitioner in these words: Estimate the depth of the anterior chamber using the Von Herrick-Shaffer technique. Remember that IV is wide open and I is narrow. Respondent's Exhibit No. 2. The anterior chamber is deepest at the center and shallowest near the limbus, where the cornea joins the sclera, and aqueous fluid filters out of the eye. Because the angle at the junction affects the rate of flow, the depth at the chamber periphery is more likely to be of clinical significance than the depth at the center. The Von Herrick-Shaffer technique is a means of measuring chamber depth at the periphery, and not in the middle: a slit lamp casts the cornea's shadow on the chamber floor, and the ratio between the length of the shadow and the width of the cornea is determined. By whatever technique, custom and practice mandate measurement of the depth of the anterior chamber at the edge. When petitioner reported the depth at the center of the chamber, neither examiner (both of whom evaluated independently) awarded any points. Tonometry The Goldmann tonometry portion of the test required candidates to gauge intraocular pressure by placing fluorescein on the white of the patient's eye, then placing a probe and aligning the mires of the tonometer. An examiner read to each candidate these directions beforehand: Add fluorescein to non-dilated eye. Perform applanation tonometry and indicate when you have the proper measurement. You will be given a maximum of 2 minutes to perform this procedure. Respondent's Exhibit No. 2. Because the first examiner gave petitioner full credit, and the second gave him no credit, he received half credit for this part of the examination. At hearing, petitioner testified that he was not ready for the second examiner to grade, and conceded that the mires were no longer in alignment when the second examiner checked. (The second examiner also noted a misplaced light source.) But petitioner, who had the prerogative to "indicate when [he] ha[d] the proper measurement," Respondent's Exhibit No. 2, and did so before the first examiner checked, said nothing to the second examiner (who followed closely on the first) to indicate that he felt the measurement was no longer "proper."
Recommendation It is, accordingly, recommended that respondent deny petitioner's application for licensure on the basis of the September 1990 optometry licensure examination, without prejudice to any subsequent application. RECOMMENDED this 10th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of August, 1991. COPIES FURNISHED: Alejandro M. Tirado 606 First Street Neptune Beach, FL 32266 Vytas J. Urba, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Should Respondent receive a passing grade on the November 1997, Chiropractic Licensure Examination?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The examination for licensure as a chiropractor in the State of Florida is administered by the Department of Business and Professional Regulation, Bureau of Testing, under a contractual arrangement with the Department and consists of three parts: Physical Diagnosis, Technique,and X-ray Interpretation. A candidate for licensure must receive a score of 75.00 on each of the three portions of the examination in order to receive an overall passing grade. A candidate for licensure must pass at least two of the three portions of the examination in order to retake only the failed portion of the Examination. Otherwise, the candidate must retake the entire examination. Petitioner holds a Doctor of Chiropractic degree and is a licensed chiropractor in the State of Georgia. Petitioner practices chiropractic in the State of Georgia. In September 1997, after submitting all documents required to sit for the November 1997, Examination, Petitioner experienced a total retinal detachment in his right eye and underwent ophthalmic surgery. Petitioner has significant vision impairment and his vision is described as “poor” by his ophthalmic surgeon. In November 1997, Petitioner’s ophthalmic physician opined that Petitioner “has not reached complete recovery and I do not think he has accommodated to his loss of vision in the right eye.” Prior to the Examination, Petitioner telephoned the Board to discuss his recent vision impairment and requested the special accommodations of being allowed to sit up front and to be given more time on the Examination. A Board representative requested confirmation from a physician of the vision impairment. By letter dated November 7, 1997, Robert T. King, M.D., Petitioner’s ophthalmic surgeon, advised the Board of Petitioner’s vision problem and indicated that he suspected that Petitioner would require additional time for the examination. If timely requested, accommodations such as flexible time, flexible settings, flexible recording of responses, and flexible format are available to the examinees. There is no evidence that the Board responded to the request by Dr. King or to Petitioner’s earlier verbal request for accommodations. Likewise, there is no evidence that Petitioner, prior to the Examination, followed through on his request for accommodations. On the day of the Examination, Petitioner requested a large print test booklet. Despite his impaired vision, Petitioner decided to continue with the November 1997, Examination. Petitioner passed the Technique portion of the Examination and is not challenging that portion of the Examination. Petitioner was advised that his score on the Physical Diagnosis and X-ray Interpretation portions of the Examination was 73.50 and 72.00, respectively. In his initial petition letter, Petitioner challenged the grading of his answers to questions 2, 3, 4, 8, 12, 17, and 22 on the Physical Diagnosis portion of the Examination and challenged the grading of his answer to question 24 and the accommodations he was not given for a disability on the X-ray portion of the Examination. Prior to the hearing, the Department awarded Petitioner credit for his answer to question 24 on the X-ray Interpretation portion of the Examination. Petitioner no longer challenges the Department on his answer to question 24. Petitioner’s score on the X-ray Interpretation portion of the Examination has been raised to 73.50 by the Department. At the hearing, Petitioner withdrew his challenge to questions 2, 3, and 17 of the Physical Diagnosis portion of the Examination. Without objection from the Department, Petitioner amended his petition letter to include a challenge to his answer to question 13 of the Physical Diagnosis portion of the Examination. During the X-ray Interpretation portion of the Examination, slide screens are set up in the front of the examination room and slides of an X-ray are projected on the screens. All lights in the examination room are turned off. The examinee has a test booklet and an answer sheet. A pen light is provided to read the test booklet and to see the answer sheet. The answer sheet is a “Scan-Tron” sometimes called a “bubble sheet.” In order to record an answer on the answer sheet, the examinee darkens one of four small circles (bubbles) spaced within an approximate one-inch column on the answer sheet. The examinee is allowed one and one-half minutes to answer each question. Answering the question requires the examinee to read the question in the test booklet, view the projected slide of the X-ray on the screen, and then locate and darken the appropriate “bubble” on the answer sheet with a pencil. During the X-ray Interpretation portion of the Examination, Petitioner was allowed to sit up front but was not allowed additional time or given a large print booklet. Another examinee with vision problems took the X-ray Interpretation portion of the Examination at the same time as Petitioner. This examinee was allowed to sit closer to the slide screen, given a large print test booklet, and an unlimited amount of time to transcribe answers from the test booklet to the answer sheet. However, there was no evidence as to the extent of this examinee’s vision problem or when this examinee had requested special accommodations. Petitioner did not advise any of the proctors present at the test site of the difficulty that he was having with his vision. Because of his vision impairment, the nature of the X-ray Interpretation portion of the Examination made it difficult for Petitioner. Additionally the lack of additional time resulted in Petitioner not being able to properly check his answers in the test booklet with those on the answer sheet. Petitioner did not request that his examination booklet be graded instead of his answer sheet (bubble sheet). The Examination Instructions provide in pertinent part as follows: While you may write in your examination booklet, please note that the examination booklets used during the actual examination are shredded after the examination administration. Post examination review candidates will NOT be given their original examination booklet but will be provided with a clean, exact copy of the original examination booklet. There was no evidence that the Department’s denial of Petitioner’s request for additional time and a large print test booklet was due to cost, administration restraints, or availability of resources. Petitioner contends that because he was denied certain accommodations that he most likely miss-keyed some of his answers on the X-ray Interpretation portion of the Examination when he transposed his answers from the test booklet to the answer sheet. Without the test booklet, there is insufficient evidence to show that Petitioner incorrectly transposed any answer from his test booklet to the answer sheet, notwithstanding Petitioner’s testimony to the contrary. The Physical Diagnosis portion of the Examination is a subjective test in which the examinee is presented with a test booklet with certain information. There is an examination patient (live mannequin) provided for the examinee to demonstrate answers to various questions. There are two examiners who score the examinee’s answers. This portion of the examination is videotaped. An examiner for the examination for licensure as chiropractic must be a licensed chiropractor in the State of Florida with five years of continuous practice in the State of Florida and must not have had a chiropractic license or other health care license suspended, revoked, or otherwise disciplined. Before an examination, examiners are required to go through standardization training and are not allowed to consult with each other on their scoring of an examination. After an examination, the Bureau of Testing calculates the agreement rates of the examiners to ensure scores are based on the standardization training. The examiners who graded Petitioner’s examination had agreement rates of 93 percent and 95 percent. The Department considers 80 percent or better acceptable. Test questions on the Physical Diagnosis portion of the Examination are assigned different point values, with some questions having partial credit available. A question’s point value is based on the frequency, practicality, importance of the subject matter, and how much harm could be done to the patient if the procedure is not performed correctly. Partial credit is given on some questions and not others because in some situations a partial answer is considered as a no answer, whereas in other situations, partial information is considered better than no information. The Department does not award a candidate partial credit on a question where it has been determined that partial credit is not available. The first two questions challenged by Petitioner, Questions Nos. 4 and 8, are on the “Case 1” portion of the Physical Diagnosis portion of the Examination. Within “Case 1,” the examinee is required to demonstrate ability relating to case history, physical examination, selection of laboratory tests, selection of diagnostic imaging, providing a diagnosis, and exercising clinical judgment. In “Case 1,” the examinee was provided with a theoretical 68-year old female with midback and chest pain and a variety of physical complaints. After developing a case history (Question No. 1) and performing a physical examination (Question Nos. 2 and 3). The examinee was required to select laboratory tests in Question No. 4 which had assigned to it a value of either zero points or four points. The specific question in Question No. 4 is: “For the case presented, name which laboratory tests or diagnostic procedures, if any, would confirm your suspected diagnosis.” 31`. In response to this question, Petitioner stated that he would order a CPK, SGOT, CBD, and an EKG. Petitioner was advised by the examiners that an EKG was not available. Petitioner also requested a urinalysis to look for infection. An SGOT laboratory test, also known as an AST test, is a laboratory test used to indicate if there is damage to the heart. A CPK laboratory test, also known as a CK tests (which Petitioner correctly referred to as CPK but also referred to as CKP or CK, is also a laboratory test which detects heart damage. The examiners were informed in their booklets that the suspected diagnosis was congestive heart failure. The examinee was not advised that the suspected diagnosis was congestive heart failure. The examiners were also informed in their booklet that they should expect to hear the answer for Question No. 4 to be “SMAC” and a “CBC” laboratory test. SMAC is an acronym for the laboratory test know as Sequential Multi-Channel Analyzer with Computer. A SMAC laboratory test is a series of individual tests, or a biochemistry profile. And while the number of individual tests performed in a SMAC laboratory test may vary from laboratory to laboratory, there are certain individual laboratory test that are always included in a SMAC laboratory test. SMAC and CBC was the Department’s preferred answer to Question No. 4. However, based on the testimony of Dr. Roraback, which I find to be credible, Petitioner’s answer to Question No. 4 was equally correct in that the laboratory tests suggested by Petitioner would have confirmed the suspected diagnosis of congestive heart failure notwithstanding the testimony of Dr. Heyser to the contrary. Therefore, Petitioner should have been awarded 4 points for his answer to Question No. 4. In Question No. 8, Petitioner was asked to provide the diagnosis for this Case 1 patient. The value assigned to Question No. 8 is either zero points or eight points. The examiners were instructed by their test booklet that “congestive heart failure” was the correct answer. The answer sought by the Department, congestive heart failure, is a “specific ICD-9” diagnosis. ICD-9 stands for the International Classification for Disease Diagnosis. Cardiopulmonary disease is not an ICD-9 diagnosis. Petitioner’s initial oral answer to Question No. 8 was “COPD.” COPD is an acronym for chronic obstructive pulmonary disease. In response to an examiner’s question of “Which is?, Petitioner stated “cardiopulmonary disease.” In response to another examiner’s question who asked “Can you be more specific?”, Petitioner responded “It is a disease with the --- because the heart is enlarged, it is infringing on the lungs, and it causes a back-up of fluid in the lungs.” Cardiopulmonary disease is a very broad diagnosis and Petitioner’s narrative description of that diagnosis may have included congestive heart failure. However, based on the testimony of Dr. Heyser, which I find credible, Petitioner’s answer was incorrect in that it lacked the specificity the Department was seeking. Questions Nos. 11, 12, and 13 of the Physical Diagnosis portion relate to orthopedics. In Question No. 11, the examinee was asked to name orthopedic tests which would be used to evaluate a shoulder problem. Petitioner appropriately named these tests. In Question No. 12, Petitioner was asked to demonstrate several of the named tests. In Question No. 13, Petitioner was asked to name the condition which would be indicated by a positive response on each particular orthopedic test. The only test which is in dispute with regard to Question Nos. 12 and 13 is the Dawbarn’s sign or test. Petitioner’s demonstration of the Dawbarn’s test is shown on videotape. On the videotape of Petitioner’s performance with regard to the demonstration (Question No. l2), Petitioner can be seen placing his finger in the area of the patient’s shoulder and raising (abducting) the patient’s arm, performing the test, while at the same time stating: Dawbarn’s is you palpate the area of tenderness and, as I raise your arm, please let me know when the pain stops, okay. If the pain stops, it’s indicative of bursitis. It is clear from the videotape, the testimony of Dr. Roraback, and Petitioner’s exhibits that Petitioner correctly demonstrated the Dawbarn’s test. However, while one examiner gave Petitioner full credit (four points) on Question No.12, the other examiner only gave Petitioner partial credit (three points) The examiner awarding three points stated in comments: “Dawbarn’s performed improperly.” Petitioner correctly performed the Dawbarn’s test and should have been given the full four points on Question No. 12. Question No. 13 asks the examinee to state what disease conditions positive results on the different tests would indicate. With regard to Dawbarn’s test, Petitioner stated that a positive response would be indicative of “subdeltoid bursitis.” Question No. 13 was a four-point question, with partial credit being available at one, two, and three points. On Question No. 13, each examiner gave Petitioner three points out of four. Each examiner appears to have deducted one point from Petitioner’s answer, because Petitioner named subdeltoid bursitis. The examiners were informed to look for the answer “subacromial“ bursitis. Five different texts received into evidence and Dr. Roraback’s expert testimony reveal that the terms “subdeltoid bursitis” and “subacromial bursitis” are used interchangeably. One of the text specifically states: A consideration of shoulder movements would not be complete without reference to the role of subacromial (subdeltoid) bursa . . . There may be two, a subacromial and a subdeltoid, but they function as one and are frequently fused. Whether fused or not, subacromial bursa is the more common name. Petitioner’s Exhibit 12, the Merck’s Manual states: Subacromial bursitis (subdeltoid bursitis or supraspinatus tendinitis) presents with localized pain and tenderness of the shoulder, particularly in abduction in an arc from 50 to 130 degrees. Petitioner should have received full credit (four points) for Question No. 13, because a positive response to the Dawbarn’s test is indicative of subdeltoid bursitis notwithstanding the testimony of Dr. Heyser to the contrary. In Question 22, Petitioner was asked to perform a “triceps reflex”, which is one of a series of deep tendon reflexes that the examinees were asked to perform. A triceps reflex is one of several deep tendon reflexes done at various locations in the body to determine neurological status. The triceps muscle is a muscle of the upper arm, and the triceps tendon attaches the muscle to the upper portion of the lower arm bones. It is necessary for the triceps tendon to cross the elbow joint between the upper and lower arm bones in order to move the joint. Proximal means the end of a muscle or tendon closest to the body. In this case, distal means the area closer to the hand. In order for the triceps tendon to move the joint, the tendon must pass from the proximal end of the joint to the distal end of the joint. The videotape shows Petitioner preparing the patient to avoid a voluntary reflex, and then tapping an area close to the elbow of the patient, with the patient’s lower arm then reacting by moving in a somewhat jerking manner away from the body. The reason the arm “pops out to the side” is that the triceps is responsible for extending the elbow. This happens because, when the tendon is quickly stretched (tapped), it signals a nerve to tell the muscle to contract in order to prevent damage to the area. This contraction results in the lower arm responding with movement. Question No. 22 has a maximum value of two points, with partial credit of one point available. Each examiner awarded Petitioner partial credit of one point. It appears from the examiners’ comments on the score sheet that they did not believe Petitioner appropriately struck the tendon for the triceps muscle, or believed Petitioner tapped in an area “distal” to the elbow joint. With regard to distal versus proximal, it is clear that Petitioner did tap an area of the arm distal to the elbow joint between the upper arm and the lower arm, but very close to the elbow joint. However, since the triceps tendon must attach to an area of the lower arm it is possible to tap the tendon distal to the joint. It is clear from the videotape that the arm movement response was not voluntary and was consistent with a triceps reflex and that the triceps reflex was performed properly. Therefore, Petitioner is entitled to the full two points available for Question No. 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner full credit for his answers to Question Nos. 4, 12, 13, and 22 of the Physical Diagnosis portion of the Examination and a final score of 80 but deny Petitioner’s challenge to Question No. 8 of the Physical Diagnosis portion of the Examination and deny any further challenge to the X-ray Interpretation portion of the Examination. It is further recommended, that Petitioner be allowed to retake the X-ray Interpretation portion of the Examination at the earliest possible date without cost. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0752 Angela T. Hall, Agency Clerk Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Alfred W. Clark, Esquire Post Office Box 623 117 South Gadsden Street Tallahassee, Florida 32302 Anne Marie Williamson, Esquire Department of Health 1309 Winewood Boulevard Building 6, Room 240 Tallahassee, Florida 32399-0700
The Issue The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of January, 1996.
Findings Of Fact Dr. Norman S. Bateh is the Petitioner in this matter and is an unsuccessful candidate on the optometry (theory and practice) licensing examination administered by the Respondent Board of Optometry on July 23 through 25, 1983. The development of, an examination by this Board reflects careful planning and consideration to ensure it fairly tests an applicant's knowledge of the subject matter. Prior to the preparation of a particular examination, a large pool of questions is developed from numerous professional and academic sources. After the examination is given, an analysis of it is conducted to see how the questions are received by the examinees. Examinees are given the opportunity to contest particular questions after the examination has been administered. Based on the Board's analysis of the test results, any question that was answered correctly by less than 58 percent of the examinees, in addition to those questions contested by the examinees are sent for verification to the Board's consultants, in this case Drs. Pappas and Chrycy. If, upon review by the consultants, it appears a question was incorrectly graded, ambiguous, unclear, or unfair; or if, in the consultant's opinion, there is any sort of problem with the question, all examinees are given credit for it. Passing grade on the 100-question, multiple-choice examination was 70 percent. Petitioner was initially awarded a grade of 66, but on review, at his request, of several of the questions which were graded as wrong, he was awarded two more points, which brings his grade to 68, still two points below passing. He was ranked 98th out of 103 examinees. Petitioner challenges four questions at this hearing as being either improperly graded or invalid because the question is incapable of a correct answer. These questions are numbered 8, 31, 73 and 78 and will be discussed individually, infra. If Petitioner's answer is determined to be correct, he will be awarded one point credit for that question. If any question is determined to be invalid for any reason, Petitioner will be awarded one point credit for that question. Question 8 on the examination read: Intraocular lens placement after cateract extraction results in an image magnification of approximately: 0% 4% 9% D. 25% Petitioner's answer on the examination was "C. 9%." The Board's correct answer was "B. 4%." Petitioner presented the testimony of an ophthalmologist, Dr. Schnauss, who has performed the operation to implant intraocular lenses between 500 and 600 times. As an expert who has used the lenses in his practice frequently and as consultant to one .of the major manufacturers of these lenses, e states unequivocally the degree of magnification is less than 1 percent, but not 0 percent. The further away from the location of the original lens of the eye, the greater the magnification. Since the lens implant is close to the plane of the original eye lens, there would be little magnification. Therefore, notwithstanding the conclusions of the Respondent's experts, Dr. Pappas and Dr. Chrycy, both consultants to the Board of Optometry, who cite Duane, Clinical Ophthalmology, Vol. I, as authority, no answer listed as an option on the examination is clinically correct. However, 52 percent of the candidates who took this particular examination gave the Board's correct answer. Question 31 on the examination read: Which of the following would you consider a positive scotoma: the blind spot Evan's angia-scotomas Seidel's scotoma muscae volitantes Petitioner's answer on the examination was "C. Seidel's scotoma." The Board's correct answer was "D. muscae volitantes." A scotoma is a blind spot in the patient's vision. Positive scotomas are those which are noticeable by the patient as he sees. Negative scotomas are not noticeable to the patient, but show up under test. A Seidel's scotoma, which is an extension of a blind spot, would not be a positive scotoma because the patient would not see it in the visual field. The Board's preferred answer, muscae volitantes, was attacked by Petitioner's experts as being inaccurate since they are bits of floating protein substance in the eye which, .though they are opaque and create a block to vision where they exist, are not true blind spots because they are not a defective area in the eye and they move. They are blind only because they temporarily block vision, not because they are a defect in the eye. Therefore, while muscae volitantes are, technically, positive scotomas where they exist, the question is inartfully drawn, vague and confusing, a conclusion supported by the fact that only 28 percent of the candidates got the correct answer. This low figure, to Mr. Gustafson, Respondent's test statistician, is insignificant. However, a question so confusing that only 29 of 103 examinees get it right and which is capable of such substantial meritorious argument on both sides is truly vague. Question 73 on the examination read: A keratoconus patient with "K" readings of 46.00 x 52.00 can best be fitted with which lens: a spherical firm lens a soft lens with overglasses a bitoric gas permeable lens with light touch on the cone a bitoric gas permeable lens with heavy touch on the cone Though Petitioner testified his answer was "D," and he defended it at the hearing, his answer on the examination was "A." The Board's correct answer was "C." The prime consideration in this question is the touch of the lens, not the issue of hard or soft, or gas permeability. The most current edition of Mandell's textbook and the majority of optometrists today feel that the best choice of lens for fitting a keratoconus patient is the bitoric gas permeable lens with light touch. The opinion of the "majority of optometrists" referred to by Dr. Chrycy was garnered in discussions with a personal friend who, as a Fellow of the American College of Optometry, had recently attended a meeting of that body where this exact subject was, discussed and that opinion rendered. Petitioner cited an earlier edition of Mandell's work to urge the position that a firm lens is required to contain the protrusion of the dark part of the eye that comes along with keratoconus. Later opinion, however, changes that position which is now no longer considered the better treatment. Petitioner also challenged the "K" readings in the question as being unreliable. Unfortunately by doing so, reasonable asthat might be in the practice of optometry, he read into the question a factor that was neither present nor intended by the examiners. The "1(" readings in this question were agiven quantity. Petitioner's treating them as a "trick" was an unfortunate mistake. It is also pertinent to note that 71 of the 103 examinees (69 percent) chose the correct answer to this question. Question 78 on the examination, the fourth and last one challenged by Petitioner at the hearing, reads: The extraocular muscle most frequently involved in extropia is the medial rectus superior rectus lateral rectus superior oblique Petitioner's answer was "C. lateral rectus." The Board's correct answer was "A. medial rectus." The term "extropia" means a turning outward of the eye. The term "extraocular" means outside the eye. The medial rectus muscle is the muscle between the eye and the nose which pulls toward the center of the face. The lateral rectus muscle is that on the outward part of the eye which pulls toward the ear. In a normal individual, the muscles, of equal strength, balance each other and the eye looks forward unless the person involved moves it. Extropia is caused when there is an imbalance of the muscles, either by a weakening of the medial rectus, which allows the normallateral rectus to overpower it, or by an unnatural strengthening of the lateral rectus which then overpowers the normal medial rectus. By far the greater weight of optometric opinion, based on observation and testing, reveals that the most frequent" cause of this condition is the weakening ofthe medial rectus, leaving the lateral rectus normal. Consequently, the correct answer is not lateral rectus as claimed by Petitioner, but the medial rectus as stated by the Board,notwithstanding even the Board's expert, witness testified there is no definitive authority to support the Board's choice. In this case, 64 percent of the examinees chose the correct answer.
Recommendation Based on the foregoing, it is RECOMMENDED: That a final order be entered finding that Petitioner should be awarded one additional point credit for Question 31 and that he, nonetheless, failed to achieve a passing score on the July, 1982, optometry examination. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983. COPIES FURNISHED: Abraham I. Bateh, Esq. 2124 Park Street Jacksonville, Florida 32204 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Rochep Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The ultimate issues to be resolved in this matter are whether the Respondent has violated provisions of law relating to the practice of optometry and, if so, what penalty should be imposed. The Respondent has been specifically charged with violating Section 463.016(1)(g), Florida Statutes, in connection with his examination and treatment of Karilyn Boggan Peterson. The Respondent contends that his treatment of Peterson was in accordance with accepted standards of optometric practice. In resolving the issues, it has been necessary to resolve conflicting testimony given by the Respondent and Karilyn Boggan Peterson. In resolving the conflicting evidence, due regard has been given to the demeanor of the witnesses at the hearing and the extent to which their testimony is corroborated by other evidence. In most instances, the conflicting testimony has been resolved in favor of the witness Peterson and against the Respondent. The witness Peterson's testimony has been deemed credible. In many respects, the Respondent's testimony is not corroborated even by the Respondent's own records. His testimony has not been deemed credible.
Findings Of Fact At all times relevant to this proceeding, the Respondent has been licensed to practice optometry in the State of Florida. He holds License No. 0000668 issued by the Florida State Board of Optometry. The Respondent has practiced optometry in Gainesville, Florida, since 1960. He has a good educational background and is an active member in several professional organizations. During June, 1979, Karilyn Boggan, who since then has married and changed her name to Karilyn Boggan Peterson, visited the Respondent's office in Gainesville, Florida. She had bought a pair of nonprescription sunglasses from the Respondent a year prior to that, and she wanted to purchase a new pair of sunglasses and to have her eyes examined. She had not previously worn prescription glasses. She was experiencing some difficulties with her eyes. When she read for long periods, her eyes would get irritated, and she would get drowsy. The problem appeared to be getting worse. Boggan visited the Respondent's office on June 28, 1979, and related these problems to him. The Respondent examined Boggan and advised her that she had an astigmatism and that she would benefit from wearing prescription glasses. She asked if he would write a prescription so that she could have it filled at a place where glasses were available at less cost. Respondent advised her that he would need to charge her an additional $15 if she did not buy the glasses from him. She then requested that the Respondent fill the prescription. Respondent advised Boggan that persons with astigmatisms were generally sensitive to light, and he asked if she wanted "tinted" or "photogray" lenses. She said that she did. On July 14, 1979, Boggan returned to the Respondent's office to be fitted for her new glasses. The only instructions that the Respondent gave her about the glasses were that she should wash them in soap and water. Boggan paid the Respondent for the examination and the glasses. Approximately one month later, Boggan contacted the Respondent by telephone and advised him that she did not notice a lot of difference in her vision when she used the prescription glasses. She asked the Respondent if she should wear them at all times, or just when she read. The Respondent advised Boggan that she should wear the glasses all of the time. Prior to then, Boggan had been wearing the glasses irregularly. Thereafter, she wore them faithfully nearly all of the time. Boggan visited the Respondent's office on one or two occasions thereafter to have the frames adjusted. Other than that, she had no further contact with the Respondent. Except for the tinting, things appeared the same to Boggan with or without the glasses. Nonetheless, she continued to wear them until May, 1982. At that time, she was working as a proofreader and was having the same symptoms she experienced before, only more profoundly. A coworker suggested that she visit an ophthalmologist. She visited an ophthalmologist on May 21, 1982. The ophthalmologist examined her and the glasses that had been prescribed by Respondent. He concluded that she had a muscle control problem which he called "convergence insufficiency." He advised her that the glasses were of no benefit to her, and he sent her to an orthoptist, a person trained in treating eye muscle problems. The orthoptist prescribed an eye muscle exercise program. Boggan has followed the program, albeit not vigorously, and has observed some lessening of the sumptoms she experienced. The Respondent's testimony about his examination of Boggan is not supported by his own records, and his testimony about it has not been deemed credible. The Respondent did determine that she exhibited slight farsightedness and a slight astigmatism. He determined that she had a slight exophoria at distance, which was nothing to be concerned about, and a normal vertical phoria at distance. The Respondent did some near point testing to determine near point phorias and the accommodative capacity, which he determined to be normal. The Respondent utilized a "fogging technique" to determine the maximum amount of plus lens that Boggan could utilize, both distance and near, without experiencing blurry vision. He determined that she could wear a +.12 diopter lens on her right eye and a +.37 diopter lens on her left eye without experiencing blurriness. A "diopter" is a measurement of the refractive correction in a lens. The Respondent sold Boggan glasses with that prescription. He did not suggest the need for any follow-up visits. Generally, lenses with a refractive correction of +1 diopter or less are considered low power lenses. Lenses of +.12 diopter and +.37 diopter are very low power lenses which offer very little corrective value. Except for the tint in the glasses the Respondent sold Boggan, the glasses served no function at all for her. They did not correct any visual deficiency, nor does it appear that they were designed to do that. The Respondent prescribed the glasses solely on the basis of Boggan's complaints that her eyes would get irritated and drowsy when she read a lot and upon the "fogging test" which determined the maximum plus lens that she could wear without experiencing blurriness. There is a legitimate difference of opinion among practicing optometrists as to the value of low plus power glasses. Some optometrists would never prescribe them; others prescribe them routinely. Whatever the philosophy of a given optometrist, the prescribing of low plus power glasses would be justified only if numerous tests were conducted and the results evaluated. A proper eye examination conducted by an optometrist in 1979 in Gainesville, Florida, would have begun with the taking of the patient's medical history and a consideration of the patient's complaints. The patient's visual acuity would be measured to get an objective determination of refractive error. Muscle balance is tested either through a "cover test," or through "phorias" to determine the position of one eye relative to the other. This is done at distance, infinity and at near. If these findings are normal, a "vertical phoria" is done to determine the position of the eyes in a vertical position, as opposed to a horizontal position. The "amplitude of accommodation" is then tested by changing lenses in front of the patient's eyes and making the patient focus, or by having the patient fixate on small print and moving it toward the patient and asking him when it gets blurry. An "ophthalmoscopy" is conducted to observe the inside of the eye, and the outside is observed. A "slit lamp examination" is conducted to evaluate the interior portion of the eyes, the cornea, the iris and the lens. A tonometry is done to measure the pressure inside the eye. A "cover test" is also used to determine whether there is any area in the patient's field of vision where he cannot see. The minimum procedures for a vision analysis conducted by an optometrist have been prescribed by a rule adopted by the Department of Professional Regulation, Board of Optometry. Rule 210-3.07, Florida Administrative, Code, prescribes these minimum procedures. The rule was not in effect at the time that the Respondent conducted his examination of Boggan. The minimum procedures set out in the rule are, however, in concert with the minimum standards followed by optometrists in the State of Florida, including Gainesville, Florida, during 1979. The Respondent's examination and prescription of glasses for Boggan did not comport with these minimum requirements. An organization known as the Optometric Extension Program ("OEP") advocates the prescription of low plus power glasses. The Respondent is a member of that organization and agrees with its philosophy. To justify a low power prescription under the OEP theory, numerous near point tests need to be conducted. The results of these tests are placed in a formula, and a prescription is determined based upon the formula. The Respondent did not arrive at his prescription for Boggan in this manner. The prescribing of very low power glasses based solely upon a patient's complaints and upon a "fogging test" is not in accord with the OEP system. If the results of other tests show no abnormalities as they did for Boggan insofar as the tests were conducted, there would be no justification other than a commercial one for prescribing glasses and selling them. The prescribing and selling of glasses to Boggan does not comport with generally accepted and prevailing standards of optometric practice in Florida and specifically in Gainesville, Florida, at the present or at the time that the Respondent examined and prescribed glasses for Boggan. Prescribing glasses in that manner constitutes incompetence and misconduct in the practice of optometry. The manner in which the Respondent prescribed glasses for Karilyn Boggan was not an isolated occurrence in the Respondent's practice. The Respondent would conduct the same sort of examination and, with the same complaints and the same test results, issue the same prescription today. It is the sort of examination and prescription that the Respondent routinely makes in his practice. A "probable cause panel" of the Florida State Board of Optometry was convened to consider whether an administrative complaint should be issued in this matter. The panel determined that probable cause existed to justify issuing an administrative complaint against the Respondent. The attorney who prosecuted this matter on behalf of the Department of Professional Regulation appeared at the probable cause panel meeting. The attorney made recommendations to the panel, some of which were followed. It does not appear that the attorney was providing legal services to the probable cause panel, but rather that he was making recommendations as a prosecutor. To the extent that his recommendations could be considered the providing of legal services to the panel, it does not appear that the fairness of the probable cause proceeding nor the correctness of the action they took was impaired. During 1978, the Board of Optometry issued an Administrative Complaint against the Respondent in a different proceeding. The attorneys for the Board and the attorney for the Respondent entered into a stipulation through which the Respondent agreed to reimburse a patient; that the charges against him, if true, constituted unprofessional conduct; to pay a fine and costs; and to submit to a period of probation for one year. The stipulation was executed on January 26, 1979. The file before the Division of Administrative Hearings was closed based upon the stipulation. It does not appear that the Board of Optometry ever approved the stipulation, nor that the Respondent actually paid the fine, nor that the period of probation ever commenced. It cannot be determined, based upon the evidence presented, whether the Respondent was on probation at the time that he examined Karilyn Boggan.
The Issue The issue is whether Petitioner received the proper grades on the November 1997 chiropractic examination.
Findings Of Fact Petitioner graduated in 1994 from a chiropractic university. He was licensed to practice in Michigan and saw 100-200 patients daily while in practice there. In November 1997, Petitioner took the Florida chiropractic licensure examination. The November examination consisted of three parts: technique, physical diagnosis, and x-ray interpretation. (A fourth part on Florida law is irrelevant in this case.) A passing grade is 75 on each of the parts, which are graded separately, not cumulatively. Petitioner earned a passing grade of 85.5 on the physical diagnosis part of the November examination. However, he earned failing grades of 60 and 67.6 on the technique and x-ray interpretation parts, respectively. Petitioner suffers from diabetic retinopathy, which resulted in neovascularization of both eyes with a rupture in the left eye. Petitioner was totally blind in this eye for several months until the blood drained out of it. The residual scar tissue formed a macula, or traction, that created a black spot in the center of Petitioner's vision with the left eye. This condition has not been corrected by surgery, and Petitioner has been left with a permanent blind spot in the field of vision of his left eye. When Petitioner first received his application for the Florida examination, he did not inform Respondent of his visual disability because it does not affect his ability to read x-rays in viewboxes, which, based on past experience, was how Petitioner assumed that the x-rays would be presented. Later, Petitioner learned that the x-rays were presented on slides projected on large screens for all of the candidates taking the examination. At the November 1997 examination, there were three screens for approximately 160 candidates. Two to three months prior to the test date, Petitioner contacted a regulatory specialist for the Board of Chiropractic to obtain the necessary accommodation, which would consist merely of assigning Petitioner a seat in the first row from the screen. When this person did not return Petitioner's calls, he contacted another person who was employed at the Division of Medical Quality Assurance. Trying to help Petitioner, she suggested that he bring a physician's note to the examination, and the test administrator would seat him up front. Petitioner did as he was told, but when he appeared at the test site, about 30-45 minutes early, he was told at the door that he could not even bring the note inside with him to show the test administrator. Petitioner entered the test room and found that he had been assigned a seat three rows from the back. He tried to explain his situation to a proctor, but was unable to get his seat moved or permission to approach the screen to see the x-rays better, so he proceeded to take the examination. When the x-rays appeared on the screen, Petitioner tried closing his left eye and squinting, but could not see the x-rays sufficiently to interpret them in this timed section of the examination. Respondent's mishandling of Petitioner's timely and reasonable request for an accommodation for this visual disability rendered the scoring of the x-ray interpretation part of the November examination arbitrary and capricious and devoid of logic and reason. Respondent's solution is to offer a free retest for this part of the examination. If there were no basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then a free retest would be Petitioner's sole remedy. However, if there is a basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then this is the preferred remedy because, for the reasons set forth in the conclusions of law, this remedy better restores Petitioner to the position in which he should have found himself after taking the November 1997 examination. In this case, it is possible to imply a correct score for the x-ray interpretation part of the November examination due to: 1) the clear nature of Petitioner's disability; 2) the clear results obtained six months later when Petitioner retook the x-ray interpretation part of the examination with no other accommodation besides being seated in the front row; and 3) the absence of any indication in the record that Petitioner enlarged his knowledge of x-ray interpretation between November 1997 and May 1998. In May 1998, Petitioner passed the x-ray interpretation part with a score of 82.3. It is found that Petitioner would have passed the x-ray interpretation part of the November 1997 examination if Respondent had made reasonable accommodation for his disability. It is further found that, eliminating the unreasonably adverse testing conditions at the November examination, Petitioner's proper test score for the x-ray interpretation in the November 1997 examination is 82.3. Petitioner's performance on the May 1998 examination does not inspire as much confidence on the technique part of the examination. Although he raised his score on the latter examination, he still scored only a 70, which is five points below passing. At this latter examination, Petitioner also failed the physical diagnosis part with a score of 73.7, even though he had passed it with an 85.5 six months earlier. This matter is discussed in the conclusions of law. Petitioner's strongest challenge to the technique part of the November examination is confusion concerning an instruction describing the patient as suffering from an "old compression fracture." Petitioner did not perform the manipulative technique, for which he would have received credit, because he was concerned that the fracture might not have healed; he thus performed only a soft tissue massage. There is insufficient ambiguity in the description of an "old compression fracture" to justify Petitioner's caution, especially considering that he did not avail himself of the opportunity to ask questions of his examiners. Petitioner's other challenges to the technique part of the November 1997 examination are without merit.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order awarding Petitioner a passing grade of 82.3 for the x-ray interpretation part of the November 1997 examination, in place of his invalid score of 67.6, so that he will be deemed to have passed the physical diagnosis and x-ray interpretation parts of the chiropractic licensure examination at the November 1997 administration. DONE AND ENTERED this 26th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1998. COPIES FURNISHED: Philip Andrew Cobb 18508 Orlando Road Fort Myers, Florida 33912 Anne Marie Williamson, Attorney Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent Hagen violated Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code, by allowing his license to be used by an unlicensed person to engage in the occupation of dispensing optician without his presence and direct supervision. Whether the license of Respondent Hagen should be revoked, annulled, withdrawn or suspended for violation of Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code.
Findings Of Fact Respondent Wayne L. Hagen, the licensed optician in the Pearl Vision Center, Tyson Square Mall, St. Petersburg, Florida, holds License No. 180, a license in good standing, issued by the Florida Board of Dispensing Opticians pursuant to Chapter 484, Florida Statutes. The Board in formal meeting on March 28, 1975, directed Mr. Allen R. Smith, Jr., a coordinator for the Department of Professional and Occupational Regulations, Division of Occupations, to file the subject Administrative Complaint against Respondent Hagen. The charge in the Complaint is the violation of Rule 21P-4.01, Florida Administrative Code, in that an unlicensed person engaged in "dispensing optical goods while Mr. Hagen was absence for the premises". Respondent received a copy of the Administrative Complaint, Explanation and Election of Rights containing notice that said Complaint was mailed the 29th day of April, 1975. Respondent had no notice by certified mail or actual notice of these proceedings or an opportunity to show that he had complied with all lawful requirement for the retention of his license, prior to the receipt of the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that no notice prior to the mailing of the Administrative Complaint, Explanation and Election of Rights was sent to Respondent giving notice of the facts or conduct which are delineated in the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that prior to the initiation of the Administrative Procedures Act in former proceedings the Board had given notice of receipt of Complaints against licensees. Respondent Hagen had posted in the office of Pearl Vision Center signs indicating that no fittings or adjustments would be made while Respondent was off duty. The unlicensed employee of Respondent, Lynda Vickers, performed acts in violation of the Rules and Regulations of the Board without the knowledge or permission of Respondent and was discharged prior to the filing of the Complaint against Respondent. Respondent did not allow his license to be used by an unlicensed person to engage in the trade or occupation of dispensing optician without his presense and direct supervision. Respondent through his attorney moved to dismiss the Complaint on the grounds that the Board of Dispensing Opticians failed to give him prior notice and and an opportunity to rectify in accordance with the requirements of the licensing statute, Section 120.60(4), Florida Statutes.
