Findings Of Fact Petitioner passed all parts of the acupuncture examination except section one of Part Four, which was the clinical practical segment of the examination. That portion required the demonstration of various needling techniques and was independently graded by two observer-examiners. Respondent then averaged the two grades to arrive at a single score for each technique Petitioner was required to demonstrate. Respondent administered its first acupuncture examination in December, 1981, and its second in August, 1982 (at issue here). The examinations were developed and administered in consultation with California examiners, since that state had the greatest experience in testing and licensing acupuncturists. Petitioner raised no factual dispute with respect to examiner credentials, qualifications tested, or the scoring system. Rather, Petitioner pointed to alleged errors by the examiners in administering and grading certain questions. Additionally, Petitioner contends the reading list given for the written portion of the examination was misleading in that it was not intended to apply to the practical portion. Petitioner points to several questions where he received full credit from one examiner and a much lower grade from the other. Rather than averaging the two grades, Petitioner believes the lower grades should be thrown out as errors. However, Respondent instructed its examiners to give full credit where they failed to observe a specific technique or were otherwise uncertain of the performance. Thus, there was no showing that these diverse grades were other than a result of an examiner's failure to observe (for which Petitioner was not penalized). Petitioner further challenges the instructions given, contending the examiner erred in administering certain questions. Again, however, it is at least as likely that Petitioner misinterpreted instructions which were properly given. Petitioner contends he was misled by the reading list provided in advance of the examination. It was not clear, as Respondent argues, that the reading list was intended only for the written portions of the examination. However, Petitioner did not show that this misunderstanding prevented him from performing satisfactorily on the practical portion of the examination. Petitioner challenges the examiner's "eyeballing" techniques to grade his selection of proper acupuncture points. Respondent concedes this is not a precise method in all cases. However, the tolerance permitted on point location will allow for slight examiner error as well as reasonable candidate error. This was shown to be an acceptable scoring method by the testimony of Respondent's expert witness.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 14th of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clarine Smissman, Esquire 217 North Eola Orlando, Florida 32801 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ann Mayne, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R. T. CARPENTER 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 14th day of July, 1983.
Findings Of Fact Petitioner passed all parts of the acupuncture examination except sections one and two of Part Four, which was the clinical-practical segment of the examination. That portion required the demonstration of various needling techniques and was independently graded by two observer-examiners. Respondent then averaged the two grades to arrive at a single score for each technique Petitioner was required to demonstrate. Respondent administered its first acupuncture examination in December, 1981, and its second in August, 1982 (at issue here). The examinations were developed and administered in consultation with California examiners, since that state had the greatest experience in testing and licensing acupuncturists. Petitioner raised no factual dispute with respect to examiner credentials, qualifications tested, or the scoring system. Rather, Petitioner pointed to alleged errors by the examiners in administering and grading certain questions. Additionally, Petitioner contends the reading list given for the written portion of the examination was misleading in that it was not intended to apply to the practical portion. Petitioner points to several questions where she received full credit from one examiner and a much lower grade from the other. Rather than averaging the two grades, Petitioner believes the lower grades should be thrown out as errors. However, Respondent instructed its examiners to give full credit where they failed to observe a specific technique or were otherwise uncertain of the performance. Thus, there was no showing that these diverse grades were other than a result of an examiner's failure to observe (for which Petitioner was not penalized). Petitioner further challenges the instructions given, contending the examiner erred in administering certain questions. Again, however, it is at least as likely that Petitioner misinterpreted instructions which were properly given. Petitioner also claims one grade was transferred in error from the examination sheet to the score box. However, it does not appear that the letter written by the examiner, as part of a note, was intended to be a letter grade. Rather, the grade as written in the box provided for that purpose must be accepted as the score assigned by the examiner. Petitioner failed the sanitation portion of the examination by breaking the sterile field. She denies she touched the needle to her shoe strap as stated by the examiner and claims she could not have performed the assignment with her shoe on. This contention was demonstrated to be incorrect by Respondent, and it is probable that Petitioner simply failed to notice her error during the examination. Petitioner contends she was misled by the reading list provided in advance of the examination. It was not clear, as Respondent argues, that the reading list was intended only for the written portions of the examination. However, Petitioner did not show that this misunderstanding prevented her from performing satisfactorily on the practical portion of the examination.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 14th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 14th day of July, 1983. COPIES FURNISHED: Clarine Smissman, Esquire 217 North Eola Orlando, Florida 32801 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ann Mayne, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Regulation of those practicing acupuncture first became law in Florida with the passage of Chapter 80-375, Laws of Florida (1980). Therein it was declared unlawful for any person to practice acupuncture in this state unless such person has been certified by the Department of Professional Regulation. This statute, as amended, and now contained in Section 468.323, Florida Statutes (1981), requires an applicant for certification to practice acupuncture in this state to pass an examination which tests the applicant's competence and knowledge of the practice of acupuncture and "includes a practical examination of the skills required to practice acupuncture, covering diagnostic techniques and procedures, point/meridian selection, needle insertion, manipulation and removal, patient care, sanitation and antiseptic application." The technique of point/meridian selection, needle insertion, manipulation and removal, which Section 468.323 requires a successful applicant to demonstrate are techniques basic to traditional Chinese acupuncture. All of these Petitioners failed the clinical practical portion of the examination given in August, 1982. The August, 1982, examination was the second examination given in this state to applicants for certification to practice acupuncture. The first examination was given in December, 1981. Due to the lack of known-to-be qualified examiners in Florida, Respondent contacted the State of California, who has licensed acupuncture practitioners since 1976, and arranged to have acupuncturists who have served as examiners in California, serve as examiners for the practical part of the Florida examination for the examinations given in December, 1981, and August, 1982. All of the examiners who administered and graded the practical portion of the August, 1982, examination have practiced acupuncture for at least five years and have served as examiners in California for at least three years. Most of these examiners hold degrees in medicine or oriental medicine and all are highly qualified acupuncturists. All of these examiners were assembled before the commencement of the examination and instructed for twelve to eighteen hours to assure that all were grading on the same scale and their grades would be as consistent as practicable. They were provided with Acupuncture Examiner Manual (Exhibit 14) which contains grading criteria for each task on the practical examination. Petitioners contend that this examiner manual established grading criteria for procedures that are unnecessary and/or not practiced by many acupuncturists, thereby taking from the examiners the initiative to grade the examinees on their overall demonstration of acupuncture techniques. A careful review of Exhibit 14 does not compel this conclusion. To the contrary, Exhibit provides the examiners with examples of techniques that demonstrate competence as well as techniques demonstrating superior performance. As noted below, the areas in which the greatest number failed was in location of acupuncture point and length of needle/angle of insertion/manipulation. In the former a passing grade was given if the candidate needled on the proper meridian. A superior grade resulted if the candidate was less than one-half inch off point and on the meridian. In the latter the candidate received a passing score if he got two of the three, viz, angle of insertion, length of needle and/or manipulation, correct. Either twisting and twirling or lifting and thrusting of the needle was accepted for manipulation for either tonification or sedation. Instructions were mailed to all applicants advising of the time and place of their examination; the format of the examination; the bibliography of books to study for Part II of the examination, Theory and Practice of Acupuncture; how Part IV of the practical examination will be graded and that it will consist of: (1) Needle Insertion, Manipulation and Removal and (2) Patient Care, Sanitation and Antiseptic Application (Exhibit 4). Also forwarded to the applicants were the rules governing acupuncture clinics, Chapter 10D-81, Florida Administrative Code, and Chapter 21-12, Florida Administrative Code, covering licensing procedures for acupuncturists, including scope of the examination. Every examinee's scores for items 6, 11, and 16 on Part IV.1 of the August, 1982, examination intended to test examinees' performance in needle inspection prior to insertion were invalidated by Respondent at the examination because: Candidates did not adhere to this criteria, it would appear that while this is a vital precautionary measure to be utilized in the practice of acupuncture, candidates, however, consistently failed this criteria. The contention is that since applicants used newly purchased pre-packaged needles, disposable needles, and their personal needles, the assumption is that candidates were confident of the "good" condition of needles, and with the exception of one candidate this appears to be true. Prior to the August, 1982, acupuncture licensure examination, Respondent did not specify to Petitioners any text as reference for the clinical practical portion (Part IV) of the examination, nor did Respondent expressly notify Petitioners that they would be tested on points/meridian location in Part IV.1 of the examination. Respondent did not instruct examiners for the August, 1982, examination that they had to determine the accuracy of Petitioners' point/meridian location through the examinees' use of the proportional measurement method, including the comparison of the size of their hand to Petitioners' hands, and then palpation, and the examiners did not use this method of determining the accuracy with which Petitioners located acupuncture points on the clinical practical examination. Respondent did not notify Petitioners expressly in writing prior to the examination that they were required to insert the needle at an angle, either with or against the flow of energy along the meridian, in order to receive a score for "correct angle" on the August, 1982, acupuncture licensure clinical practical examination. Respondent did not notify Petitioners expressly in writing prior to the examination that they had to demonstrate one of the needle manipulation techniques known as "twisting and twirling" or "lifting and thrusting" in order to receive a score for "correct manipulation" on the August, 1982, acupuncture licensure clinical examination. Respondent did not notify Petitioners by rule or otherwise that "needle manipulation" would be graded in two separate items on the grade sheet for each acupuncture point on the examination. Nor did Respondent notify Petitioners expressly in writing prior to the examination that they had to close the hole for tonification and leave the hole open for sedation in order to receive a score for "proper removal" of the needle on this examination. Respondent did not notify Petitioners expressly in writing prior to the examination that they had to cleanse hands by washing with soap or scrubbing with alcohol or an antiseptic solution prior to handling needles and that they had to maintain "sterile hands" when handling any of the needles in order to receive a "pass" score for item 2 of Part IV.2 of the examination. Nor did Respondent so notify Petitioners that they had to use an antiseptic agent, such as betadine solution, hydrogen peroxide, or alcohol, to cleanse the skin area in which needle insertion was to be performed in order to receive a pass score for item 3 of Part IV.2 of this examination. Nor did Respondent so notify Petitioners that once their hands had been cleansed the cleansed hands could not be used to adjust their clothing or in any other manner that would not maintain sterility in order to receive a "pass" score for item 4 of Part IV.2 of the examination. Respondent did not adopt a rule specifying the criteria by which examiners were to be selected prior to the August, 1982, acupuncture examination, nor did Respondent adopt a rule specifying point/meridian location as a grading criterion for the August, 1982, examination. "Superior manipulation" and "extreme care exercised" are not terms of art in the practice of acupuncture. Acupuncture is defined in the statutes and rules to mean "the insertion of needles into the human body, or the treatment of specific skin areas by means of mechanical, thermal, or the electrical stimulation, for the purpose of controlling and regulating the flow and balance of energy in the body." There are numerous "schools" of acupuncture throughout the world where "masters" teach different techniques. However, all of these schools teach the traditional Chinese theory of acupuncture which is to balance the energy in the body by "tonifying" those areas where there is insufficient energy and "sedating" those areas with too much energy. No evidence was presented that different acupuncture "points" are used at the differing schools of acupuncture or that proper results can be obtained if the needle is not inserted accurately on the point to he needled. These "points" are where needles are inserted and manipulated to increase or decrease the flow of energy on that meridian. The differences in these schools of acupuncture, including the western or scientific, consists mainly of techniques used to attain the desired end. Of these techniques, depth of needle, angle of insertion, and how a needle is manipulated to stimulate the point are perhaps the most significant. Of the three texts referred to the applicants for study, two describe the traditional Chinese art of acupuncture, while the third, by Felix Mann, tests the Chinese art of acupuncture against western scientific bases to demonstrate the efficacy or lack thereof of some of these procedures. While a scientific basis for certain of the traditional Chinese theories cannot be demonstrated, Mann, and others in the scientific world, contend these theories to be without merit. Pursuant to the Chinese school of acupuncture, both depth and angle of insertion of the needle are important. For tonification this school teaches that the needle be angled with the flow of energy, and stimulation of the point is attained by: (1) Repeatedly lift the needle gently subtaneously, then thrust it back with force; (2) Twist and twirl the needle back and forth with small amplitudes and slowly; (3) Insert the needle slowly, twirl it gently. When withdrawing, rest the needle just beneath the skin for a short interval, then withdraw it swiftly; and (4) After withdrawing the needle, close the acupuncture hole by applying slight pressure over it, preventing the vital energy from the channel from escaping. For sedation the needle is inserted against the flow and the manipulations above-noted for tonification are, insofar as practicable, reversed and the hole is left open for the excess energy to escape (Exhibit 6). Traditional Chinese acupuncture emphasizes the importance of point location, angle of insertion, depth of penetration of the needle, the type manipulation used and opening or closing of the hole. All schools emphasize the importance of point location. Some schools, finding little scientific basis for angle and depth of insertion, de-emphasize the importance of these techniques. Many contend that there is no basis for angled insertions solely for tonification or sedation, that with adequate stimulation, depth of needle is unimportant and that almost any type of stimulation is adequate for either tonification or sedation. Little scientific basis for leaving the hole open or closing the hole for sedation and tonification, respectively, has been demonstrated. Since many acupuncture practitioners in the western world, particularly medical doctors, attain stimulation by the use of electricity, and electricity will pass through body tissue easier than manually transmitted vibrations of the needle, the depth of penetration for these practitioners using electrical stimulation is not particularly important. Accordingly, those practitioners give little weight to depth of penetration. Manipulation of the needle during and after insertion consists principally of lifting and thrusting or twisting and twirling. The needle can be moved only in three dimensions, but the speed and amplitude of those movements can be varied. Variations of the speed, amplitude and direction of the movement of the needle are obtained by "plucking" the needle, "scraping" the needle, "shaking" the needle, "flying" the needle, and "trembling" the needle. (Exhibit 28) Movements in certain directions with emphasis are specified for tonification and other movements for sedation are important in the practice of traditional Chinese acupuncture. In the instructions given to the applicants, including all of these Petitioners, they were directed to bring acupuncture needles of various sizes they would use in their practice and all material needed for sanitation and antiseptic application. For Part IV of the examination, each applicant was advised prior to the examination (Exhibit 5) that he/she would be required to perform needle insertion, manipulation and removal on themselves for three different acupuncture points, that the examiner will designate the points on which needle insertion, manipulation and removal are to be performed; that they were to demonstrate for the examiners how they would treat a patient in their clinic when performing needle insertion, manipulation and removal; that they are required to demonstrate only the proper sterilization and sanitation procedures and proper needling techniques for the designated acupuncture points; and that minutes is allotted for this portion of the test. The examination was conducted in a motel room having a sink for the applicant to wash his hands, a straight chair and coffee table for applicant to sit on and set up his equipment and two chairs for the two examiners. Upon entry into the room, each applicant was given the information contained in Exhibit 10. Several Petitioners testified Exhibit 10 was not read to them, while all examiners testified that Exhibit 10 was read to each applicant. All Petitioners who testified prepared a lower leg for acupuncture, all acknowledged that they used a different needle for each insertion, and each acknowledged that he/she was directed to tonify or sedate three specific points. Exhibit 10 directs the procedures each Petitioner testified he followed with the possible exception of the words "using correct angle and needle manipulation" following the directions to "tonify spleen 6" or "sedate liver 4." While a few of the Petitioners attributed their failure to use correct needle angle prescribed by traditional Chinese acupuncture to the failure of the examiners to so instruct them, most of the Petitioners who didn't angle the needle testified that they used a perpendicular needle angle of insertion of the needle because they didn't believe in the efficacy of angling the needle; or to the instruction to insert the needle as they would on a patient in their clinic. Since they didn't use angled insertions on their patients or "close the hole" or "leave the hole open" when treating their patients, they didn't demonstrate the use of those techniques on the examination. Petitioners' primary complaints about the examination concern the failure of Respondent to more specifically tell them exactly what they would be required to do on the practical part of the examination to obtain a passing grade. Su Liang Ku was a successful applicant for licensure on the August, 1982, examination and testified as an expert witness in these proceedings. He acknowledged that the instructions that he was given were not all-encompassing and that he did not always "close the hole" when applying tonification procedures to patients in his office; however, he clearly recognized the need to demonstrate to the examiners all of the appropriate techniques when taking an examination. Ku had taken exams in Burma, China and California before taking the Florida examination and was not surprised by the tests he was asked to perform on the practical examination or uncertain whether the needle should be angled, the hole closed or left open, or whether he should demonstrate more than one technique used to stimulate the point. Had some of these Petitioners recognized and kept in mind this innate distinction between adequate clinical procedures and examination procedures, they, too, would have passed this examination. Petitioner William Skelton failed Part IV of the examination largely because he was graded zero by both examiners for "needle manipulation and removal" for two of the three points. He was also given a below average by both examiners on needle length for one point. Skelton understood he would be examined on traditional Chinese acupuncture, and to tonify a point, he angled the needle in the direction of flow. He also understood point location was very important and that when told to tonify Spleen 6 he was expected to insert the needle at the correct point. Despite his acknowledgment that he understood he was being examined in traditional Chinese acupuncture, Skelton closed the hole on one point traditional Chinese acupuncture indicates should be left open. Petitioner Anna Alvarez failed Part IV of the August, 1982, examination largely as a result of the marks she received from both examiners on length of needle/angle of insertion/manipulation. These marks were 2 for both examiners for points 2 and 3 while for point 1 examiner A scored her performance zero and examiner B scored it 2. Had a passing mark from each examiner been awarded for all three points on this item of the examination, she would easily have passed Part IV of the examination. Ms. Alvarez testified that she did not understand she was being graded on point selection; however, she received passing marks in accuracy of location of acupuncture points from both examiners for all three points. Ms. Alvarez also testified that she achieved chi at two points and after receiving chi it is not necessary to manipulate the needle. While this procedure may well be appropriate in practice, the examiner can hardly determine that the applicant is competent as an acupuncturist unless acupuncture techniques are demonstrated. Simply announcing the arrival of "chi" after which additional stimulation may not be necessary, does not demonstrate manipulation. On the third point, Liver 4, she testified that she did not want sedation so she did not try to get chi. She also testified that the needle was inserted perpendicular to the skin for each point. One of the criteria tested on this part of the practical examination is angle of insertion. While the efficacy of angle of insertion is disputed by many, it is entrenched in traditional Chinese acupuncture and all candidates were aware that the examination would be in this field. Applicants were not given a failing score if needle was not angled, but received a higher score if this technique was demonstrated. Petitioner Paul Gonzalez failed Part IV of the August, 1982, examination largely because of the grades he received in accuracy of location of acupuncture point and in length of needle/angle of insertion/manipulation. For point one, Gonzalez was marked zero by both examiners. He testified that he was told to do Liver 8 and he got mixed up and inserted the needle at Kidney 8. He also testified that he had brought only 1-1/2 inch needles to the examination despite instructions received in Exhibit 4. On cross examination he testified that he had other needles with him but used only 1-1/2 inch needles in the examination. Gonzalez expected to he tested on traditional Chinese acupuncture procedures and attempted to demonstrate those techniques and needle insertion and manipulation. However, of the six grades received for each of the four sections on which the candidates were graded (two examiners x three points) Gonzalez received 2 - 3's and 4 - 2's for length of needle/angle of insertion/manipulation. Only on point 3 did his total score for a point reach the passing level of 3. Gonzalez angled the needle against the flow when he was told to sedate Gall Bladder 41. He also testified he was not told to tonify or sedate the other two points; however, this is contrary to the testimony of the examiners that they read Exhibit 5 to all applicants and to the testimony of other witnesses that they were told to tonify or sedate each point to be needled. Petitioner Edward Rumsey failed Part IV of the August, 1982, examination after receiving zeros from both examiners on point selection for point 1, a 3 and a 0 for point selection for point 2, and 2 - 2's for point selection for point 3. For needle manipulation and removal he received zeros from both examiners for points 1 and 2. In each of the 4 techniques tested for the three points, Rumsey received a total score less than 12 which reduces to an average score of less than 3 needed for passing. Rumsey testified he studied the books on Chinese acupuncture listed on Exhibit 4. When told to tonify Stomach 36, he inserted needle perpendicular to the skin. When told to tonify Spleen 10, he inserted the needle at an angle to the flow. When told to sedate Gall Bladder 41, he again inserted needle perpendicular to the skin. Rumsey further testified the only manipulation technique he used was twisting the needle and he didn't demonstrate closing the hole or leaving the hole open. As with other applicants, the examiners who tested Rumsey were seated in chairs facing Rumsey and could observe him clearly. Rumsey, as did several other witnesses, contended the examiners could not ascertain the needle was inserted more than 1/2 inch from the correct point unless they actually measured. The various acupuncture points are located a certain number of "cuns" from an anatomical landmark and there are a specified number of cuns between two anatomical landmarks. For example, Exhibit 9, p 91, shows there are 8 cuns between the nipples on a man's chest. An experienced acupuncturist should be able to locate a point with considerable accuracy by viewing the anatomical landmark and, by eye, selecting the point 3/8, 1/4, etc. of the distance between these landmarks. Petitioner, David Bole, failed part IV of the August, 1982, examination because he received an average score high enough to pass only one of the four criteria graded by the examiners, viz, "condition of needle - handle comes in contact with skin." On needle manipulation and removal, he received for point 1 a 0 and a 3; for point 2 - 3 zeros; and for point 3 - 2 fours. On accuracy of point location, Bole received 2 - 3's for point 1; a zero and a 3 for point 2; and a 4 and a 3 for point 3. For length of needle/angle of insertion/manipulation, he received scores of 3 and 2 for point 1; 2 and 3 for point 2; and 3 and 4 for point 3. Bole also received a mark of at least one fail by both examiners in the sanitation part of Part IV. Any grade of fail in the sanitation portion of the examination results in a final grade of fail. Bole testified he holds a Ph.D. in psychology and has been practicing acupuncture under the supervision of a medical doctor. He studied the recommended texts to prepare for the examination, but relied on his experience, past training and instruction to proceed as he would with a patient in his own clinic, in demonstrating his proficiency in traditional Chinese acupuncture. Bole testified he inserted the needle at an angle with the flow when directed to tonify and against the flow when directed to sedate. He also demonstrated closing the hole or leaving the hole open as appropriate. He used the same swab to clean all points as well as to seal the hole and he used 1-1/2 inch needles for all points. Bole acknowledged that knowing length of needle used allows the examiner to determine the depth the needle is inserted. His principal objection is that insufficient directions were given to applicants for the applicants to understand exactly what they were expected to demonstrate. Harvey J. Kaltsas failed Part IV of the August, 1982, examination by reason of the low scores he received in accuracy of locating acupuncture point and length of needle/angle of insertion/manipulation. On point location Kaltsas received passing grades of 3 by each examiner for points 1 and 2, but for point 3, received grades of 0 and 2. For length of needle/angle of insertion/manipulation he received a 2 from each examiner for point 1, a 3 from each examiner for point 3, and one 2 and one 3 for point 2. Kaltsas testified that in his training, the angle of insertion of the needle is the most important factor in needling. To prepare for the examination Kaltsas studied the texts recommended in Exhibit 10 and assumed the examiners would be looking for methods of tonification and sedation discussed in the books on traditional Chinese acupuncture. For each of the three points he was told to tonify or sedate, he inserted the needle perpendicular to the skin. Kaltsas also testified he didn't think the examiners were looking for point location because they didn't take physical measurements to check the accuracy of each point he needled. Petitioner Marie Burleson failed Part IV of the August, 1982, examination partly as a result of running out of time before point 3 was needled. However, even if the score on point 3 could be ignored, Burleson would have failed all of the criteria except "needle manipulation and removal." For the accuracy of location of the two points needled, Ms. Burleson received two 2's for point 1 and one 2 and one 3 for point 1. Zeros were given for point 3. For length of needle/angle of insertion/ manipulation, Burleson received a score of 3 from one examiner for points 1 and 2, but a score of 1 from the other examiner. For a "condition of needle" Petitioner received a score of 4 from one examiner for points 1 and 2, but received a score of 0 and 3 from the other examiner. Both the examiners scored Burleson zero on point 3. Burleson attributed her difficulty in not completing point 3 to the fact that she had no comfortable place to put her foot while she was needling the leg. She testified that when she started to insert the needle in point 3, her foot slipped off the chair and the needle was bent. Burleson is a graduate of an acupuncture school in California from which she took most of her studies by correspondence. She spent only one month full-time in classrooms before graduation. At the examination, Burleson used a one-inch needle inserted perpendicular to the skin for both points 1 and 2. She demonstrated closing the hole for the two points tonified. Petitioner Henry Meritt failed Part IV of the August, 1982, examination as the result of failing all of the criteria except "condition of needle" for which he was graded a 3 by each examiner for each of the 3 points. He also failed the sanitary part of Part IV with respect to his handling of needles. For accuracy of location of acupuncture point Meritt scored 3's for points 1 and 2 and zero for point 3 by both examiners. For length of needle/angle of insertion/manipulation, Meritt scored a zero and 2 for point 1, two 2's for point 2, and a zero and a 3 for point 3. For "needle manipulation and removal" both examiners scored Meritt zero for points 1 and 2 and he received a 2 and a 4 for point 3. Meritt contends he was not instructed to demonstrate how he located the points to be needled and that he thought, as did others, that point location was to be graded only in Parts II and III of the examination. In view of Finding of Fact 5 above, that point location is the most important element in acupuncture, such contentions are simply not credible. Without inserting the needle on the point or at least on the meridian on which this point is located, the desired results are not obtainable. This Petitioner testified tonification is obtained simply by leaving the needle inserted and without manipulation, that he used 1-1/2 inch needles for all points, that it was immaterial what length needle he used because they were inserted only 1/4 inch and that his two examiners were unprofessional during the time he was in the room taking his practical examination. He graduated from Doctor Dale's Institute in New York and refers to himself as Dr. Meritt although he has no doctoral degree in medicine or anything else. Petitioner Charles McWilliams failed Part IV of the August, 1982, examination by reason of obtaining a total score from both examiners below that required for passing in all of the criteria tested except "condition of needle - handle comes in contact with skin" on which he received a score of 3 from each examiner for each of the 3 points. For accuracy of location of acupuncture points, examiner A gave him a 4 for each of the 3 points, while examiner B awarded him scores of 3, 2 and 0 for points 1, 2 and 3, respectively. For length of needle/angle of insertion/manipulation for point 1 he received scores of 1 and 2; for point 2 scores of 2 and 3; and for point 3 scores of 2 and 2. For "needle manipulation and removal" for point 1 he received scores 2 and 0; for point 2 scores of 2 and 0; and for point 3 scores of 0 and 3. McWilliams testified he understood the practical part of the examination would be based on the texts to which he had been referred in Exhibit 4; that he angled his needle; that a 1-1/2 inch needle was used to tonify Stomach 36 (point 1) and Spleen 10 (point 2) and a 1-inch needle was used to sedate Gall Bladder 41 (point 3); that when he withdrew the needle from point 3, a drop of blood appeared and he put a swab on the hole; and if the latter motion constituted closing the hole, he closed the hole at point 3. McWilliams does not adhere to the theory that closing the hole or leaving the hole open is effective in tonification or sedation. Petitioner James Bissland failed Part IV of the August, 1982, examination because of failing scores received in accuracy of location of acupuncture point and length of needle/angle of insertion/manipulation and because he received a fail score from examiner A on the use of antiseptic solution on the skin prior to needle insertion on all three points needled. Bissland's scores for accuracy of point location were 2's for points 1 and 2 and 3's for point 3. For length of needle/angle of insertion/manipulation he scored a 1 and a 2 for point 1; a 1 and a 2 for point 2; and 2's for point 3. Bissland contends he did not know he would be graded on accuracy of point location but, had he known, he would have done nothing different than he did on the examination. Bissland studied the texts referred to in Exhibit 4 and expected Part IV of the examination to be a demonstration of the knowledge presented in Parts II and III. When told (by Exhibit 5) that he should demonstrate to the examiners the procedures he used in his own clinic, Bissland testified that is what he did. For each point Bissland used a 1-inch needle and a Japanese shallow needle technique with each needle penetrating 1/4 to 1/2 inch. No angling of the needles was performed. Bissland normally provides stimulation by electricity and does not angle the needles unless anatomically necessary. Since he was advised that electrical stimulation would not be allowed on the examination, he demonstrated slow and rapid insertion of the needle, slow and rapid rotation of the needle, and what he considered proper removal of the needle. Petitioners' expert witness, Peter Lu, took and passed the acupuncture examination in August, 1982. His father and grandfather were both Chinese medical doctors and Lu graduated from Hong Kong Western Pacific College where he studied acupuncture and Chinese medicine for four years. He considers point location and depth of needle insertion very important in acupuncture and an examiner can judge the depth of insertion by the length of the needle used. He was taught for tonification to angle the needle with the flow and to close the hole to prevent the escape of energy. For sedation he was taught to angle the needle against the flow and to leave the hole open to release the undesirable energy. Lu would consider a demonstration unsatisfactory if an examinee bent a needle while needling himself. Petitioners presented an expert witness who opined that test results on a practical examination were unreliable when two examiners on a scale of 0 to 4 gave scores 3 or more points apart. Here, the examiners were directed to give the applicant being tested a passing score if they could not clearly see what the applicant was demonstrating. This expert also testified the grades are unreliable where one examiner awards a pass and the other a fail. On the sanitation and antiseptic application part of the examination, the only grades authorized are pass and fail. At one point on the scale on which such performance is weighed there must be a equipoise between pass and fail. Thereafter, whichever way the scale is tilted determines the grade assigned. In this examination, the two examiners agreed on the grade to be assigned for 81 percent of the applicants. Part of the 19 percent on which they disagreed can be attributed to the instructions to award a pass score if the demonstration couldn't be clearly seen by the examiner. Even without this instruction, a difference of only 19 percent is a reasonable deviation in scores assigned by two examiners.
Findings Of Fact The Petitioner, Frederick Norman, is an orthodontist and acupuncturist who is licensed to practice in both disciplines in New York and in Aruba. He is in the process of moving from Long Island to Naples, Florida, and he seeks to become licensed to practice acupuncture in Florida. To this end, the Petitioner took the August, 1982, acupuncture examination in Florida. He passed all parts of this examination except Part IV which he failed. Part IV is the clinical practical portion of the exam, testing needle insertions, manipulation, and removal. In approximately July, 1981, Harriet Williams, employed as an examination development specialist by the Department of Professional Regulation, began the development of the Florida acupuncture examination. She commenced by reviewing the acupuncture statute and rules for the definition of acupuncture, and the general areas to be tested. In order to prepare the examination, Ms. Williams consulted practicing acupuncture experts regarding the scope of knowledge involved in acupuncture, and what activities are critical to the practice, the basic training requirements for the practice, and which skills would have to be demonstrated to show competency and not be dangerous to the public. Ms. Williams then investigated testing feasibility on the different critical areas of acupuncture in order to develop the practical examination. Practical examinations are by definition not referenced to specific textbooks, but are based on the actual practice of a profession. Other states with acupuncture licensure examinations were consulted and, based on the definition in the statute and the practicalities of the situation, it was decided that the Florida acupuncture examination would involve needle insertion into basic common points, and methods of stimulation which are fundamental and basic to the practice of acupuncture, and that the needling would be done on the candidates themselves. Since the State of California had been conducting licensure examinations and had been licensing acupuncturists since 1976, it was decided that examiners would be requested from California for both the December, 1981, and the August, 1982, examinations. Examiners with five years experience, doctorate degrees in Medicine or Oriental Medicine, vast training, California certification, and active acupuncture practices were requested. The regulation of acupuncture is new and unique in Florida because of the State's limited experience with it. In December, 1981, the Department of Professional Regulation gave the first acupuncture examination for licensure in Florida. In August, 1982, prior to the examination which is the subject of this proceeding, California acupuncture licensure examiners were brought into Florida, and were trained to administer the Florida acupuncture licensure performance examination. They were trained extensively as to their responsibilities and the standards which the State of Florida was looking for. The Department did not specify by rule the criteria by which these examiners were to be selected, as required by Section 455.217(1)(b), Florida Statutes. However, the actual qualifications of the examiners were not challenged in this proceeding. The examiners were selected by the Department on the basis of guidelines which required them to be licensed in California and actually treating patients, to have at least five years experience, extensive training in acupuncture, and a degree in Medicine or Oriental Medicine. The examiners were given standards or guidelines to assist them in judging how to grade a candidate's performance, and they administered the practical acupuncture examination August 2-5, 1982, which was taken by the Petitioner. The Petitioner has a fear of needles which he considers a phobia but not a handicap. He could not look at the acupuncture point while he inserted the needle, because of his phobia. Examiners Miles Roberts and Miriam Lee observed the Petitioner's practical acupuncture performance and marked their examination grade sheets accordingly. From one examiner the Petitioner received a barely passing grade on all three points, and from the other examiner, the Petitioner received a barely failing grade on two points and a low failing grade on the third point. Drchi is the needle sensation which indicates that a specific point has been properly stimulated. The Petitioner claimed to have attained drchi on at least two points, but he was not sure on the third one. There is no objective way for the examiners to ascertain whether or not a candidate has achieved drchi. In order to demonstrate acupuncture needling, it is helpful to do it into a human body, and it is necessary to do it into a specific acupuncture point. Angling of the needle with and against the flow of energy, twisting and twirling, lifting and thrusting the needle, and closing the hole or leaving it open for sedation and tonification, are basic fundamental techniques in the practice of acupuncture, but candidates are not penalized for using any auxiliary methods in addition. The grading criteria for the acupuncture examination is contained in Section 21-12.22(5)(a)-(e), Florida Administrative Code. This rule essentially describes how the examiner should reach a decision about how a grade is cast. This particular grading criteria must be applied through the use of expert judgment. The weight for each grading criteria is also given in this rule. The grading criteria are general in nature, rather than specific and detailed, because of the uniqueness of acupuncture as a technique in Florida. The techniques tested by the exam, however, are basic, fundamental, acupuncture techniques which all entry level licensed acupuncturists should know. The examiners agreed on whether a candidate should pass or fail the August, 1982, acupuncture examination on approximately 81 percent of their observations. On their observations of the Petitioner, this agreement was 86 percent. The pass rate for the August, 1982, acupuncture examination was in the range of 30 percent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Frederick Norman for licensure as an acupuncturist be DENIED, based on his failure to achieve a passing grade on the August, 1982, acupuncture examination. THIS RECOMMENDED ORDER entered this 5th day of April, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS 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 5th day of April, 1983. COPIES FURNISHED: Carlos Alvarez, Esquire, and Carolyn S. Raepple, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Drucilla E. Bell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mrs. Ann Mayne Acupuncture, Executive Director 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner applied for and took the 1982 acupuncture examination consisting of four Parts. He failed Part I dealing with the laws and rules of the state of Florida as well as Part IV the clinical practical, or hands-on, part of the examination. He passed Parts II and III of the examination. In 1983 the Florida legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner retook Part I covering the laws and rules of the state of Florida and passed that Part of the examination. He also took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section of the examination. In July, 1985, Petitioner retook Part III of the acupuncture examination. This time he was required to take both the written practical section and the clinical practical section of Part III. This time he passed the clinical practical section but failed the written practical section. Respondent notified Petitioner that he had failed the practical Part of the 1985 acupuncture examination by failing the written practical section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's application for certification to practice acupuncture in the State of Florida. DONE and RECOMMENDED this 25th day of April, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Sheldon L. Gottlieb, Esquire 10700 Caribbean Boulevard Suite 207 Miami, Florida 33189 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marcelle Flanagan, Executive Director Board of Acupuncture 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner sat for the July 1985 acupuncture exam. The examination consisted of two written parts, which the Petitioner passed. The practical portion of the examination (Part III) consisted of two sections. Section I consisted of a written clinical competency examination and Section II was a clinical practical examination, both of which are based on traditional oriental theories of acupuncture. Each section was graded based upon a scale of 100. The Petitioner also passed the written portion of the practical examination and the only portion of the examination at issue is the clinical practical examination, and specifically that portion concerning location of acupuncture points on models employed for purposes of administering the examination. The Petitioner additionally successfully passed the needling technique and sanitation portions of the examination, including evaluation in such areas as proper sanitation and sterilization, the accuracy of point locations, the insertion of the needle in proper direction of flow, the proper depth of insertion, proper needle manipulation, and proper needle removal. In addition to the needling technique portion of the examination, which the Petitioner passed, he was required to locate acupuncture points on a model provided by the Department. He was required to demonstrate basic knowledge of acupuncture points and meridian location. The point location portion of the clinical practical examination at issue, consisted of locating 18 acupuncture points on the models provided. The candidates were required to locate each point on the designated models in the anatomical position in which the models were presented. The candidates were allowed to palpate the models or press them with the fingers to aid in locating the points. Once the candidate located the point accurately, he was to place an adhesive dot on that point. The candidates were given a sheet listing the points that should be located and given 25 minutes to do so, then they were required to leave the examination room. Two examiners then evaluated the accuracy of their point location. The examination candidates were not allowed to use point finding devices or tape measures to aid in locating the points. In order to pass the practical examination, including the section at issue involving acupuncture point location, the candidate was required to get a score of at least 70 on a scale of 100. The Petitioner scored a 56 out of a possible 100 on this portion of the examination. Six of his point locations were shown on the graders' score sheets, in evidence as Respondent's Exhibit 3, as "just touching" the circle of the acupuncture point "area of tolerance" determined by Respondent's examiners to delineate the correct area on the model of the acupuncture point involved. Those points are described as follows: REN 12 ZHONGWAN SP. 3 TAIBAI U.B.64 JINGGU S.J.4 YANGCHI S.I.5 YANGGU K.6 ZHAOHAI The two graders involved were inconsistent in grading some point locations. Thus Grader "A" (depicted on Respondent's Exhibit 3) found that no dot had been placed at point "P.5 JIANSHI" at question number 257 on the examination, while Examiner "B" found that a dot had been placed at that point but graded it as being incorrect because he described it as being "1/2 inch off the point and too high." The graders also varied as to their description of the margin of error on those points which they counted as being described incorrectly by the Petitioner. On several occasions, as to those point locations graded as incorrect, the graders varied as much as 1/4 inch from each other in describing the distance the point was placed away from the acceptable tolerance circle. In one instance, at question number 266, point number "S.J.14 JIANLIAO," Grader "A" found the Petitioner's dot to be two inches off the point and too high, while Grader "B" found the Petitioner's dot to be placed only 1/4 inch too high, a significant discrepancy between the two graders. Question number 263 is another such instance. This is one of the six points mentioned above involving the dot just touching the margin of the tolerance circle. Grader "A" found that 1/3 of the dot was inside the circle and Grader "B" found that the dot was just touching the tolerance circle surrounding that point. In fact, as to all but one of the indicated distances on the grading sheets in Respondent's Exhibit 3, where the graders describe the distance in fractions of an inch that the Petitioner's point location dot varied away from the tolerance circles delineating acceptable point location, the examiners' distances described in their comments were at least 1/8 inch and generally at least 1/4 inch different from each other. This is obviously because the examiners used no measuring device in determining the distance Petitioner's "answer dot" was from the acupuncture point or the tolerance circle surrounding it. No measuring device was used to determine how much of a given answer dot extended inside of acceptable tolerance circle. In this connection, Witness Hall established that there was a "50 percent rule," that is, a requirement by the Department that the examination graders count an answer as correct only if 50 percent or more of the answer dot was inside the tolerance circle. This requirement is not published as a rule and was not related to the candidates before they took the examination. Given the showing by the expert testimony adduced by the Petitioner of the imprecision in point location permissible in the field of acupuncture, because of the variables described below, and because the imprecision can be "allowed for" by needle angle and manipulation, etc., the failure to inform the candidates of the "50 percent dot within the circle" requirement was likely a significant factor causing the candidates, including the Petitioner, to locate their points with less precision. Generally accepted acupuncture practice does not require such absolute precision on all point locations. The Respondent presented the testimony of witnesses Phillip Puddy and Harvey Kaltsas. These gentlemen have taken the Florida examination and are licensed in Florida. Witness Puddy, in fact, was at the same examination as the Petitioner and corroborated his testimony that none of the candidates were informed that their dots had to be 50 percent within the defined area of tolerance. Both witnesses acknowledged various texts on acupuncture practice and theory, introduced by the Petitioner, as being authoritative and which show that the relative imprecision of location of acupuncture points is in accord with the teachings of Chinese medicine, which is the basis for the art of acupuncture. The "proportional measurement method" is designed to measure gross distances on the body and to determine the approximate locations of points only. Then the acupuncturist feels for a slight hollow with his fingers which more precisely locates the point before employing the use of acupuncture needles. An important part of point location is the patient's sensitivity, which the acupuncturist observes and uses in aiding him in determining the precise point location. In any event, proportional measurement alone does not necessarily accurately locate an acupuncture point, but merely provides a gross measurement and location. The points used on the models in the examination were depicted on the models in invisible ink by the examination graders (illustrated by "black light" in the grading process). They were located by proportional measurement only. Thus, Witness Puddy established that the method of measurement used to locate the acupuncture points on the examination models is not characterized by any significant level of precision in itself, for purposes of judging the relative imprecision of a candidate's answer dot locations. Further, Witness Puddy established that there is a margin of error of 1/4 inch to one inch, depending upon which acupuncture point is involved and that if a candidate touched those areas within such a margin of error that would show a basic, competent knowledge of acupuncture. Both the Petitioner's witnesses acknowledged that various factors can alter acupuncture point locations, such as the position of the patient; the true location of a point as being beneath the skin of a patient, such that the skin can move in relation to the point location so that the point's depiction on the skin surface is an imprecise indicator, as well as the fact that the anatomical point locations simply vary because not all patients are anatomically the same. It was established by both witnesses that an imprecision in point location by practicing acupuncturists is permissible since a point's location is judged not merely by physical measurement, but by palpation and concomitant observance of the patient's reaction and sensitivity. In this connection, when the needles are used, the insertion of the needle can vary as to its location because such factors as needle angle and means of manipulation can overcome a relative lack of precision in locating the precise acupuncture point before needle insertion. Both witnesses agreed that the use of proportional measurement does not precisely define an acupuncture point, but rather serves to locate the general tolerance area which point must then be precisely located by the use of the acupuncturist's touch, combined with observing the patient's sensitivity to touch at that point. Thus, the location of acupuncture points as done in the examination preparation is in itself a relatively imprecise means of locating the points. In short, these witnesses established that acupuncturists differ as to what is an appropriate margin for error in locating an acupuncture point and established that there is no absolute standard for location of acupuncture points such as the "50 percent-of-the-dot" unwritten requirement in the grading of this examination. Both witnesses opined that if a candidate placed his answering dot in such a way as to contact the defined area of acupuncture point tolerance, then he has exhibited a basic understanding and competency as to acupuncture point location. These opinions were not rebutted and are accepted. Acupuncture point location is appropriately accomplished by taking into consideration the various variables involved and discussed above, many of which are subjective and peculiar to the individual patient. As shown by Respondent's only witness, Ella Hall, the preparers of the examination encircled each purported acupuncture point with an invisible ink circle delineating the tolerance area which varied anywhere from 5/16 to 15/16 of an inch and then enforced the Board's internal, unpublished requirement that the answer dot of the candidate had to be at least 50 percent within that varying tolerance circle. The graders, in turn, then used no measuring device to determine whether 50 percent of a dot was within the circle or not, nor in determining the size of the dot nor the size of the circle itself. These witnesses thus established that there was a significant level of imprecision in the point location portion of the examination's preparation and format. Witness Puddy's testimony, as well as the authoritative text, in evidence as Petitioner's Exhibit 2, (at page 124) establishes that the purpose of proportional measurement is to determine approximate locations of points over gross distances on the body rather than to establish a single, absolute standard for making fine measurements. It was thus demonstrated by the Petitioner that the application of the requirement of the dot being 50 percent within the requested tolerance circle, located by proportional measurement, is contrary to generally accepted theory and principles of acupuncture as described by the two expert witnesses presented by the Petitioner, as well as the text material in evidence. The location of further points by this means is contrary to the generally accepted purpose of proportional measurement in the practice of acupuncture. In summary, it has been demonstrated that the Petitioner's location of the above-mentioned six acupuncture points, which both examiners agreed touched the tolerance areas of the requested points, but for which they accorded no credit to the Petitioner, in reality are adequate demonstrations of accurate point locations. Petitioner's expert witnesses, and corroborating authoritative texts establish such point location as demonstrating a sufficiently clear and concise understanding of the prevailing principles and theories of acupuncture as to meet the purpose and intent of the examination as described in the authority discussed below.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Acupuncture according the Petitioner a passing grade of 72 upon the subject acupuncture examination. DONE and ORDERED this 17th day of February, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1314 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted. Accepted. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial. Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. COPIES FURNISHED: Gary I. Jones 3714 Zephyr Street Houston, Texas 77021 H. Reynolds Sampson, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Marcelle Flanagan Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner was an applicant for licensure to practice acupuncture in the State of Florida and took the acupuncture licensing examination in August, 1982. Information was provided to the candidate prior to the administration of the examination which identified refer- ence books to study for the written part of the examination. This included an outline of Chinese acupuncture which explained the technique of opening and closing the hole. There were no texts specified for the practical examination. The acupuncture technique of opening or closing the hole for sedation or tonification was graded as part of the removal portion of the examination. However, Petitioner did not utilize the acupuncture technique of opening or closing the hole as part of his removal technique and was penalized for this omission. The acupuncture examiners were professional examiners from California who are familiar with the different schools of acupuncture thought. Grading procedures were standardized in advance of examination administration and examiners were requested to utilize their professional judgment in assigning grades on each criteria in the performance of three needle insertions. Petitioner contends that he should not have been penalized for failing to close or leave open the acupuncture hole upon needle removal. In the view of Respondent's experts and as stated in the reference material (outline of Chinese acupuncture) this is an essential procedure relative to sedation and tonification. Therefore, Petitioner was correctly graded as to needle removal. Petitioner contends that he would have passed the examination had the practical portion scores been averaged. Under the grading procedures followed by Respondent, Part III (diagnostic written portion) and Section A, Part IV (technique) of the practical examination are graded separately, and the candidate must obtain a satisfactory score on each section. Respondent's separate grading procedures are consistent with Section 468.323, Florida Statutes (Supp. 1982). This provision requires the candidate to cass an examination which tests his knowledge and competency in specified areas including needle removal. This could not be accomplished if an unacceptable score in needle removal were permitted merely because Petitioner did well on other portions of the practical examination.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 29th day of September, 1983. COPIES FURNISHED: Mr. William S. Huang 697 E. Altamonte Drive Altamonte Springs, Florida 32701 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ann Mayne, Executive Director Board of Acupunture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Flori4a 32301
Findings Of Fact Petitioner graduated from medical school in China, in 1953. While a physician in China, he had over 25 years experience as an acupuncturist. He came to the United States one year ago. Petitioner applied for licensure to practice acupuncture in the State of Florida and took the acupuncture licensure examination in August 1982. Petitioner failed to obtain a passing grade on Part I of the examination which concerned the statutes and rules regulating the practice of acupuncture in the State of Florida, and also Section 2 of Part IV of the practical examination which concerned sanitary procedures. Petitioner has only challenged his grade on the sanitation part of the practical examination. Harriet Williams, an examination development specialist in Respondent's Office of Examination Services, developed the practical acupuncture examination after consulting with practicing acupuncturists who served as content specialists to determine the critical skills involved in the practice of acupuncture. She determined that the danger of hepatitis and other infections which can be contracted from the use of unclean needles mandated examining applicants for licensure on sanitation and sterilization procedures. She contacted Respondent's counterpart which regulates acupuncture in the State of California to obtain the services of persons experienced in grading the practical portion of that examination. She conducted a standardization process or training session for the examiners to discuss the proper method for marking the uniform grade sheet and evaluating a candidate's performance on the practical portion of the examination. The examiners were instructed to grade independently and to grade based only on their observations. They were instructed to sit three to four feet away from the candidate being examined. They were further instructed however, that if they were not paying attention or could not see the procedure clearly, they were to get up and move closer to the candidate; if they still could not see a procedure clearly, they were to give the candidate credit. When Petitioner took the practical examination, both of the examiners observing his performance marked their grade sheets that he had failed to always handle in a sterile manner the needle which was inserted. Petitioner failed the practical portion of the acupuncture examination due to his failure to maintain proper sterilization and sanitation procedures during that portion of the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner failed to achieve a passing grade on Part I and on Section 2 of Part IV, and therefore Part IV of the practical examination as an acupuncturist in the State of Florida. DONE and RECOMMENDED this 27th day of April, 1983, in Tallahassee, Florida. LINDA M. RIGOT 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 27th day of April, 1983. COPIES FURNISHED: Man Li Ching 19100 Belaire Drive Miami, Florida 33156 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Samuel Yu was properly graded for his performance on the acupuncture license exam given July 18, 1986, for the location of acupuncture point Ren. 17 Shanzhong.
Findings Of Fact Samuel C. Yu took the acupuncture examination administered by the State Board of Acupuncture on July 18-20, 1986. The examination includes demonstration of practical clinical skills. Dr. Yu received a failing grade for the practical clinical portion of the examination. He challenged the method by which his performance on the clinical examination was graded. If given credit for the location of the point at issue, he would have passed the examination. In the clinical portion of the examination the candidates are required to locate certain acupuncture points on a person who serves as a model for the examination candidates. A committee of examiners locates the points on the body of the model and, after consultation, marks the point with ink which is invisible except under ultra violet light. Candidates do not actually insert needles at those points during the examination, but are required to place small adhesive dots at the point location. That placement is evaluated by illuminating the area with ultra violet light. If more than half the surface of the adhesive dot is within the point location established with the ultra violet ink, the candidate receives credit for the exercise. If more than 50 percent of the dot is outside of the pre-marked point, no score is given. The examiners who evaluated Mr. Yu both agreed that he did not correctly identify point Ren. 17 Shanzhong. The Board of Acupuncture had not taken photographs of Mr. Yu's or any other candidates performance. The evidence about Mr. Yu's examination performance was established through oral testimony of Examiner R. Yang. Although Dr. Yu demonstrated that three of the textbooks recommended by the Board of Acupuncture describe the point Ren. 17 Shanzhong somewhat differently, the variations are not great, and the tolerance area which the examiners establish is sufficiently large so that a minimally competent candidate would be able to locate point Ren. 17 Shanzhong. The collegial decision of three expert acupuncturists to locate the point on the examination model and choose a further tolerance area provides candidates who have minimal skills a fair opportunity to demonstrate their abilities. The method of administration of the examination in general, and with respect to the grading of Dr. Yu's performance in particular, was fair and valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the petition of Samuel C. Yu for regrading of his preformance on the acupuncture practical licensure examination be DISMISSED. DONE AND ORDERED this 16th day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4050 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The filing made by Mr. Yu constitutes a recitation of evidence and argument, but not findings of fact. Consequently, no rulings on the proposals can be made. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Rejected as a recitation of evidence. Generally covered in Finding of Fact 6. Covered in Finding of Fact 8. Not adopted as unnecessary. Covered in Finding of Fact 8. To the extent necessary, covered in Finding of Fact 8. Rejected as unnecessary. COPIES FURNISHED: Mr. Samuel C. Yu 628 Lock Road Deerfield Beach, Florida 33442 Jeffrey H. Barker, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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
