The Issue Whether Petitioner should receive a passing grade for the Florida Optometry Licensure Examination taken on July 23 through 25, 2004.
Findings Of Fact Dr. Cook is a licensed optometrist in the State of Michigan. She received her Doctor of Optometry degree in 1985, and became licensed in the same year. Dr. Cook has taken the Michigan, Illinois, and Wisconsin state licensure examinations and passed all three examinations on her first try. For 17 years, Dr. Cook practiced optometry at the University of Michigan Health Services. This was a comprehensive practice, including eye examinations with dilation, treatment of eye diseases, emergency care, and the monitoring and follow-up care of patients with glaucoma, cataracts, and other diseases. Except for providing care to family members, Dr. Cook has not practiced professionally, on a regular basis, since August 2001, when she moved to Florida. Dr. Cook is a Fellow of the American Academy of Optometry. She was accepted at the final hearing as an expert in optometry. Dr. Cook desires to become licensed in Florida to practice optometry. As part of the process to apply for licensure in Florida, Dr. Cook is required to retake parts one and two of the national board examinations and to pass the Florida examination for licensure. She retook the national board examinations and passed on the first try. In August 2003, she took the clinical portion of the Florida examination and failed. In July 2004, Dr. Cook retook the clinical portion of the Florida examination. A passing score on the clinical portion is 80. She scored 75.75 on the July 2004 examination, and, thus, failed the clinical portion. For the clinical examination, Dr. Cook was required to bring her own "patient" upon whom some of the examination's required procedures were required to be performed. Some of the procedures are performed on "patients" brought by other candidates taking the examination. The grading on each procedure in the clinical examination is done by two examiners who are licensed, practicing optometrists. A candidate will be graded by a different set of examiners for the morning and afternoon sessions. The examiners are chosen by the Board of Optometry and trained by the Department's Testing Services Unit and outside practitioner consultants prior to the administration of each examination. The examiners are provided with a set of Grading Standards for their use during the grading of the examination. The purpose of the training and standards is to make the grading process objective and to provide grading uniformity and consistency. The examiners are required to grade and mark their scores independently. They are not to compare or discuss their scoring with other examiners at any time. If both examiners' grades agree, the candidate is given either no credit or full credit, depending on whether the examiners considered the procedures were properly performed. If the examiners disagree on the grading, the candidate is given the average of the two grades actually awarded, which is the sum of the two grades divided by two. If an examiner considers that a procedure is properly performed, the examiner marks the grade sheet with a "Y," indicating a yes. Examiners are taught to give the candidates the benefit of the doubt in borderline cases. If an examiner feels that the performance was borderline, the examiner must indicate "borderline" in the comment section on the grade sheet and specify the reason. If an examiner determines that the candidate did not properly perform the procedure, the examiner marks the grade sheet with an "N," indicating a no. An examiner is required to specify the reason for a no grade in the comment section on the grading sheet. Some of the procedures are performed once for both examiners. Other procedures are performed in groups, meaning that the procedures are performed twice, once before each of the examiners. In grouped procedures, the first examiner will read the directions for a procedure, and the candidate will perform the procedure after the directions are given. The first examiner will read the directions for the next procedure, and the candidate will perform the procedure after the directions are read. This format continues until the grouped segment is completed. The same procedures will then be performed for the second examiner, following the same format used by the first examiner. No records are kept to indicate which examiner graded first or second during any part of the examination. The examination candidate has control over when each examiner grades the candidate. When the candidate is ready to be graded, the candidate is required to say, "Grade me now." Dr. Cook has challenged the grades that she received for the following procedures: confrontational field test; measurement of pupil size; rating patient's response to light; demonstrating the equator and posterior pole during the binocular indirect ophthalmoscopy examination; the anterior vitreous portion of the biomicroscopy examination of the anterior segment; the choroidal crescent, posterior vitreous detachment, A-V three crossings out find and reflex, and hypertensive changes portion of the biomicroscopy examination of the fundus; and measuring eye pressure using a Goldmann Tonometer. A confrontational field test is a gross neurological field test in which the candidate compares her visual field to the patient's to pick up gross neurological defects. The Candidate Information Booklet (CIB) states that the confrontational field test is to be performed as described in Clinical Opthalmology by J.D. Duane. In order to perform this test, the candidate sits in front of the patient about a meter away. The patient covers one eye and looks at the candidate's eye, nose, or other structure so that the patient's gaze is not moving around. The candidate puts her non-moving fingers in different quadrants to test the patient's ability to see the fingers. It is important to keep the fingers stationary while performing the test because moving fingers could be detected by the patient even in a blind field. In other words, a patient who is not able to see a stationary finger may be able to detect a finger that is moving because the motion contributes to the detection. Dr. Cook performed the confrontational field test for both examiners simultaneously. She received .75 points out of a possible 1.5 points for the confrontation field test. Examiner 202 gave Dr. Cook full credit for the examination. Examiner 239 gave Dr. Cook no credit and noted the following in the comment section: "Moving fingers--Init performed 'wiggling fingers' while moving target fingers." Examiner 239 also noted "Did very brief static CF test but fingers moving not stationary." Dr. Cook admitted that she did wiggle her fingers during part of the performance of the examination, claiming that she was testing the patient's peripheral vision, which was not part of the examination. The examination was to be performed within the central 30 degrees. The preponderance of the evidence does not establish that Dr. Cook tested the four quadrants with non-moving fingers. Dr. Cook's score of .75 points is correct. As part of the clinical examination, the candidates are required to measure the size of the patient's pupil. In order to measure the pupil, the candidate must not sit in front of the patient. Sitting in front of the patient creates a stimulus for accommodation, which is a phenomenon where the pupil size changes unless the patient can look and focus on a target at a distance. Dr. Cook measured the pupil size of her patient simultaneously for both examiners. Examiner 202 gave Dr. Cook full credit for her performance in measuring the pupil size, and Examiner 239 did not give Dr. Cook credit for her performance. Examiner 239 noted in the comment section, "candidate sat in front of pt." Dr. Cook received .5 points out of a possible one point for measuring the pupil size during the pupillary examination. Dr. Cook claims that she sat off to the side of the patient, lined up her right eye with the patient's right eye, and asked the patient to sight at a target at a distance. The examiners were off to the side when Dr. Cook performed the procedure. The preponderance of the evidence does not establish that Dr. Cook was in the correct position when she measured the patient's pupil size. Dr. Cook's score of .5 is correct. As part of the examination, candidates are required to rate the patient's pupillary response to light on a pupillary scale. The CIB states, "Pupillary examinations, muscle balance, and motility, should be done on both eyes (including dilated eye)." Examiner 202 gave Dr. Cook full credit for rating the pupil, but indicated that her performance was borderline. Examiner 202 stated in the comment section: "borderline - she was confused about 0 to 4+, but eventually got it." Examiner 239 gave Dr. Cook no credit for her performance, and stated in the comment section: "4+ but did not indicate eye, not used to using 0 to 4 scale." Dr. Cook received .5 points out of a possible one point for rating the pupil on a pupillary scale. She gave the same answer simultaneously to both examiners. When Dr. Cook was asked to rate the pupils of her patient, Dr. Cook was uncertain which scale to use, the Marcus Gunn scale or a true light reflex scale. She indicated that she gave a response for both scales and that one of the responses was 4+. Dr. Cook stated at the final hearing that the left pupil was fixed and dilated, but she did not indicate that she rated the left eye as "0." The preponderance of the evidence does not establish that Dr. Cook advised the examiners of her rating of the left pupil. The score of .5 was correct. The binocular indirect ophthalmoscope (BIO) is an instrument used to examine the fundus, which is the inside back part of the eye. The BIO sits on the candidate's head. There is a small mirror attached, through which another viewer may see the view being seen by the candidate. The candidate holds a condensing lens, which is like a magnifying glass, to evaluate structures in the eye. Examining the fundus with the BIO is a simple procedure, which Dr. Cook performed 14 to 16 times every clinical day for over 17 years. Dr. Cook wore contact lenses during the examination. With the use of contact lenses, Dr. Cook has perfect vision. Dr. Cook adjusted the instrument before the testing procedure started, including adjusting the angle of light and setting the illumination. As part of the examination on the use of the BIO, a candidate is to demonstrate the equator and the posterior pole. In these procedures, the candidate finds the view of the applicable area, one examiner looks through the mirror after the candidate says "Grade me now," and then steps back. The second examiner then looks at the mirror after the candidate again says "Grade me now." Examiner 239 did not give full credit to Dr. Cook in demonstrating the equator. For the portion of the performance which requires the candidate to demonstrate an equator landmark, Examiner 239 gave Dr. Cook a "no" and stated in the comment section: "No clear view through the mirror @ 'Grade me now.'" Examiner 239 also gave Dr. Cook a "no" for an acceptable view of an equator landmark and stated in the comment section: "Dim illumination." Examiner 202 gave Dr. Cook credit for these two performance areas. In the portion of the examination in which the candidate is to demonstrate the posterior pole, the candidate is told that the disc and macula should be seen simultaneously. Examiner 239 did not give Dr. Cook credit for the portion of the examination where the disc and macula are to be viewed simultaneously. Examiner 239 stated in the comment section: "very dim view vis'd ONH not macula." Examiner 202 gave Dr. Cook credit for this portion of the examination. Between the first and second examiners' viewings for the equator and the posterior pole, the patient did not move, Dr. Cook held the focused view still, there was no change in illumination or intensity, and Dr. Cook did not change her position. Thus, it is more likely than not that Examiner 239 was mistaken. Dr. Cook received 3.5 points out of a possible seven points for examining the views of the equator and posterior pole during the binocular indirect ophthalmoscopy examination. She should be credited with an additional 3.5 points. As part of the examination, the candidates were asked to perform an examination using a biomicroscope, which is a microscope combined with a light source that is used to view different structures on the outside and inside of the eye. It is also called a slit lamp. For purposes of the licensure examination, the biomicroscope has a teaching tube attached through the left ocular, and when the examiner looks through the tube she sees the same view the candidate sees through the left ocular. A portion of the examination using the biomicroscope includes grouped procedures. The last procedure on one of the grouped procedures was focusing on the anterior vitreous of the patient's eye. The vitreous is made up of hyaluronic acid and contains vitreal strands made of collagen. As a person ages, the vitreal strands will increase and become more visible. A young patient may have vitreal strands that would be so difficult to see that on viewing the strands the view would appear to be "optically empty." In other words, the vitreous would appear clear on examination. Dr. Cook's patient was a healthy premed student in his early twenties. The patient did not have visible vitreal strands. Before performing the group of procedures, which included the focus of the anterior vitreous, Dr. Cook adjusted the height and width of the light. She set for a direct focal illumination, meaning the light was focused where she was looking. The patient remained still between the procedures, and Dr. Cook did not change the illumination between each grading. Examiner 216 gave Dr. Cook no credit for her focus of the anterior vitreous, stating the illumination was "too dim" and the "vit not seen." Examiner 268 gave Dr. Cook full credit for that part of the examination. Dr. Cook received 1.25 points out of a possible 2.5 points for her performance related to the anterior vitreous portion of the biomicroscopy exam of the anterior segment. Based on the patient's having no visible vitreal strands; the patient not moving between the grading procedures, and Dr. Cook not changing the illumination between grading procedures, it is more likely than not that Examiner 216 was mistaken. Dr. Cook should be awarded 1.25 points for performance of the focus on anterior vitreous. Dr. Cook received 3.5 points out of a possible seven points for her performance related to the choroidal crescent, posterior vitreous detachment, A-V three crossing outs, find and reflex, and hypertensive changes portion of the biomicroscopy exam of the fundus. One of the grouped portions of the examination using the biomicroscope included demonstrating whether a choroidal crescent was present. Determining the presence of a choroidal crescent was the fourth procedure in this grouped segment. A choroidal crescent can be seen when the candidate is looking at the optic nerve and the retina does not come all the way up to the nerve. The choroidal crescent will appear at the edge of the optic nerve. Examiner 268 did not give Dr. Cook any credit for determining whether the choroidal crescent was present, and stated in the comment section, "Did not focus on the edges of the ONH [optic nerve head]." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook did not demonstrate by the greater weight of the evidence that she should be given additional credit for this procedure. Unlike the evidence presented concerning the anterior vitreous, she did not establish that there was no change in illumination, her position, or the patient's position between the grading of the grouped segments. In order to perform the grouped procedures in which she was tested on the presence of the choroidal crescent, Dr. Cook had to move the focus and illumination to different locations related to the optic nerve. The last procedure in the same grouped segment involving the choroidal crescent was demonstrating posterior vitreous separation. Vitreous gel is attached to the back of the eye in several places. When the attachment points for the vitreous are pulled away or become loose, a ring-like structure can be seen where the vitreous pulled loose. Dr. Cook was asked to demonstrate and indicate whether a vitreous separation was present after she performed the procedure involving the choroidal crescent. The proper procedure for checking for posterior vitreous attachment would be to set the proper illumination, focus on the optic nerve, and pull back slightly on the "joy stick." Examiner 268 did not give Dr. Cook any credit for the procedure involving a demonstration of a posterior vitreous separation, stating in the comment section, "Did not pull back." Examiner 216 gave Dr. Cook full credit for the procedure. Again, Dr. Cook failed to establish by a preponderance of the evidence that she should be given additional credit for this portion of the examination. There was no showing that all conditions remained the same when each examiner graded this grouped segment of procedures. Another grouped segment of the examination called for Dr. Cook to start at the optic disc and follow a temporal arcade for a distance of approximately three disc diameters and demonstrate an AV crossing. Dr. Cook was to then indicate whether there were any characteristic hypertensive changes at the crossing. A vascular arcade is a curved shape with blood vessels coming out and arcing toward one another. Most of the blood vessels in the eye are located in this area. Some diseases such as diabetes and hypertension cause changes where the blood vessels in the arcade cross. In order to perform the AV crossing procedure, a candidate has to coordinate the microscope, going up and down and side by side. Lining up is critical on this procedure. Adjustments have to occur separately, once for each examiner. Examiner 268 did not give credit to Dr. Cook for this portion of the examination, stating in the comment section, "No view in the tube." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook has failed to establish that she is entitled to additional points for this portion of the examination. The AV crossing procedure involves making adjustments for each of the examiners as part of the examination, Dr. Cook has not demonstrated by a preponderance of the evidence that all conditions remained the same for each examiner. As part of the examination, candidates are tested on the use of the Goldmann Tonometer, which is a device used to measure eye pressure. The grading on this portion is divided into four categories: illumination at the proper angle, mires alignment, thickness of alignment, and the pressure measurement. Examiner 268 gave Dr. Cook full credit for all categories. Examiner 216 did not give credit to Dr. Cook for having the correct mires alignment, and gave full credit for the remaining categories, indicating that the mires width and the reading of the pressure were borderline. In the comment section, Examiner 216 drew the alignment which he viewed. The mires were not aligned correctly. Dr. Cook received 1.24-1.50 points out of a possible 2.5-3.0 points for the use of the Goldmann Tonometer. Dr. Cook argues that because she was given credit for the pressure reading that it would be impossible for the mires alignment to be incorrect. The reading of the pressure is to test the candidate's ability to read the dial on the tonometer; it is not to determine whether the reading that is on the dial is the actual pressure of the patient. The grading standards require that the examiner put down the reading that he saw during the viewing if it is different from the reading that the candidate gives as a response. Thus, it is possible to be given credit for the pressure reading without having the mires aligned correctly. Dr. Cook has not demonstrated by a preponderance of the evidence that she should be given additional credit for this portion of the examination. None of the examiners testified at the final hearing. The Department did call Dr. Gary McDonald, who was accepted as an expert in optometry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Dr. Cook an additional 4.75 points for the clinical portion of the optometry licensure examination given on July 23 through 25, 2004, resulting in a passing grade of 80.25. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005. COPIES FURNISHED: Edwin A. Bayó, Esquire Gray Robinson 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302-3189 Allen R. Roman, Esquire Department of Health Office of General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of paragraphs (m), (n), and (t) of Section 458.331(1), Florida Statutes (1986 Supp.). The violations charged relate to allegations that the Respondent failed to keep medical records justifying the course of treatment of a patient, that he exploited the patient for financial gain, and that in his treatment of the patient he failed to practice medicine with the appropriate level of care, skill, and treatment.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0013446. Respondent's last known address is Medical Service Center, 16751 North East 6th Avenue, North Miami Beach, Florida 33162. From on or about July 25, 1986, to on or about November 19, 1986, Respondent provided medical care and treatment to Patient # 1, who is also referred to herein as "Patient O.S." On July 25, 1986, Patient O.S., who was at that time a 39-year-old man, was involved in an automobile accident. Shortly after the accident, Patient O.S. went to the Respondent's office for medical attention related to the automobile accident. During his first visit to the Respondent's office, Patient O.S. told the Respondent that he had passed out during the automobile accident. During that visit Patient O.S. complained of pain in the left shoulder, pain in the neck, and pain in the back of the head. He also complained of a headache in the back of the head. The Respondent's initial physical examination of Patient O.S. revealed the following: 1/ [O]n physical examination, the left shoulder was swollen compared to the right and felt warm to touch and was tender. There was no deformity but pain was produced on motion of the left shoulder. There was bilateral 3+ cervical paravertebral muscle spasms (on a scale of from 0-4+). Lateral rotation of the neck was 90 degrees to the left but was limited to 60 degrees to the right. At the time of the Respondent's initial evaluation of Patient O.S., the Respondent did not order or take any x-rays of Patient O.S.'s skull, cervical spine, or left shoulder. The Respondent's initial plan for the medical care of Patient O.S. included, but was not limited to, scheduling Patient O.S. for bone and joint scans of the shoulders, cervical spine, and head. At the time of the Respondent's initial evaluation of the Patient O.S., he conducted an adequate examination of the patient. 2/ The Respondent did not, however, make an adequate medical record of his examination of Patient O.S., in that he failed to include any useful information about the extent of the patient's neurological condition. Specifically, the medical records fail to contain a description of the patient's motor reflexes and motor strength. The Respondent's medical records of his treatment of Patient O.S. also fail to contain important historical information relative to Patient O.S.'s loss of consciousness during the automobile accident. On or about July 29, 1986, at the Respondent's office, the Respondent took x-rays of Patient O.S.'s shoulders. On or about July 30, 1986, at the Respondent's office, the Respondent performed bone and joint scans and color computer image analysis of the scans, of Patient O.S.'s cervical spine, right shoulder, and left shoulder. Abnormal uptake of the radionuclide not seen easily in the conventional images was found in the cervical and thoracic spine and left shoulder. This information was neither necessary nor useful in the diagnosis or treatment of the patient. On or about July 31, 1986, at the Respondent's office, the Respondent performed a procedure on Patient O.S. which is described in the Respondent's records as "Echoflow Doppler Continuous Wave Imaging of the carotid arteries." The purpose of this procedure was to evaluate the integrity of the carotid artery system. Blood flow in the patient's carotid artery system was found to be normal. On or about September 3, 1986, at the Respondent's office, the Respondent repeated the procedure on Patient O.S. which is described in the Respondent's records as "Echoflow Doppler Continuous Wave Imaging of the carotid arteries." The purpose of this procedure was to evaluate the integrity of the carotid artery system. Blood flow in the patient's carotid artery system was again found to be normal. On or about November 19, 1986, at the Respondent's office, the Respondent performed repeat bone and joint scans and color computer image analysis of the scans, with essentially the same results as the bone scans that were done on Patient O.S. on July 30, 1986. On or about November 19, 1986, the Respondent discharged Patient O.S. from the Respondent's care, stating that as of that date Patient O.S. had reached maximum medical improvement for problems related to the patient's automobile accident. The standard of medical care applicable in this proceeding is "that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." See Section 458.331(1)(t), Florida Statutes (1986 Supp.). The Respondent failed to practice medicine with the level of care, skill, and treatment described above by failing to order or take x-rays of Patient O.S. during the patient's initial visit. Under conditions and circumstances similar to those presented by Patient O.S., a reasonably prudent primary care physician, at the time of the patient's first visit, at a minimum would have taken ordinary x-rays of the patient's cervical spine (AP and lateral views), as well as either a skull x-ray or a CT scan of the brain. In a patient with the signs, symptoms, and history presented by Patient O.S., these minimum x-rays are necessary to rule out the possibility of any serious injury to the cervical spine or to the skull or brain. The Respondent's failure at the first visit to take ordinary x-rays of the Patient O.S.'s cervical spine and to take a skull x-ray or a CT scan of his brain, was a failure to practice medicine with the required level of care, skill, and treatment. The Respondent failed to practice medicine with the required level of care, skill, and treatment by performing bone and joint scans and related color computer image analysis of the scans of Patient O.S.'s cervical spine, right shoulder, and left shoulder on two separate occasions. A reasonably prudent primary care physician under similar conditions and circumstances would not have performed any of these procedures because there was no medical justification for performing the bone and joint scans on either occasion, nor was there any medical justification for the related color computer image analysis of the scans. The performance of all of the bone and joint scans and the related color computer image analysis was a failure to practice medicine with the required level of skill, care, and treatment because those scans and analysis served no useful purpose in the diagnosis or treatment of the patient, resulted in additional financial expense to the patient for which the patient received no benefit, and exposed the patient on two occasions to the risk of unnecessary radioactive materials. The Respondent's performance of the bone and joint scans and the related color computer image analysis regarding Patient O.S. was an exploitation of the patient for the financial gain of the Respondent. In the treatment of Patient O.S. it is fairly debatable whether the first of the carotid artery flow studies performed by the Respondent on the Patient O.S. was within the applicable standard of care. Although the medical conditions presented by Patient O.S. did not clearly indicate a need for such a study, a reasonably prudent primary care physician presented with those circumstances might have ordered or performed an initial carotid artery flow study if he were being extra careful. The second carotid artery flow study performed on Patient O.S. is a very different matter. There was no medical justifi- cation for performing the second study. The performance of the second study was a failure to practice medicine with the required level of skill, care, and treatment because the second study served no useful purpose and it resulted in additional financial expense to the patient for which the patient received no benefit. The Respondent's performance of the second carotid artery flow study on Patient O.S. was an exploitation of the patient for the financial gain of the Respondent. 3/ On April 20, 1988, an investigator for the Department of Professional Regulation delivered to the Respondent an authorization for the release of medical information concerning the Patient O.S. On that same day the Respondent provided the investigator with copies of Patient O.S.'s complete medical records and insurance statements. 4/ Almost two years later, during March of 1990, a Department of Professional Regulation prosecutor (Ms. Gelmine), who was then prosecuting a chiropractor who had also seen Patient O.S., contacted the attorney who was then representing the Respondent and asked whether the attorney would provide the prosecutor with a copy of the Respondent's medical records regarding Patient O.S. The prosecutor requesting the records agreed orally that if the Respondent's records were furnished to her, the records would be used solely in the disposition of the case she was prosecuting against a chiropractor and would not be used to prosecute the Respondent in this case. The attorney for the Respondent provided Ms. Gelmine with another copy of the Respondent's medical records regarding the Patient O.S., even though the Department already had copies of those records.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case to the following effect: Concluding that the Respondent has violated subsections (m), (n), and (t) of Section 458.331(1), Florida Statutes (1986 Supp.), as charged in Counts One, Two, and Three of the Administrative Complaint; and Imposing an administrative penalty consisting of an administrative fine in the amount of five thousand dollars ($5,000.00) for each of the three counts for a total fine in the amount of fifteen thousand dollars ($15,000.00) and revocation of the Respondent's license to practice medicine in the State of Florida. DONE AND ENTERED this 21st day of January, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 21st day of January, 1993.
The Issue The issue for consideration was whether Petitioner was properly denied licensure as an optometrist based on the examination taken by him on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues herein, the Board of Optometry has been the state agency responsible for the licensing of optometrists in Florida. On September 16 - 18, 1988, Petitioner, Kenneth W. Gerke, O.D., took the optometry examination administered at the Department's Miami Examining Center. He failed both the practical examination and a clinical examination, and passed the pharmacology/ocular examination with a grade of 72 and the Florida law/rules examination with a grade of 96. No evidence was introduced to establish what the pass/fail point was for each section of the examination. Thereafter, Respondent requested a review of his scores and on February 28, 1989 he was again notified he had failed the examination though his pharmacy/ocular score was raised to 73.7 and his clinical score was raised to Petitioner then filed a request for a hearing to contest specifically the grade he received on questions 4 & 10 of the clinical examination, Part I, and questions 2, 10, 14, 15, and 16 of the clinical examination, Part II. In his initial request for review, submitted on December 3, 1988, Petitioner did not cite specific questions, asking only that the test results of the practical examination taken on September 18, 1988 be reviewed with special emphasis on that portion of the practical which dealt with tonometry. Petitioner thereafter challenged Examiner 11's grading of question 4, Clinical I, and Examiner 13's grading of question 10, on Clinical I. With regard to the former, Petitioner claims the examiner did not fill in the bubble, thereby depriving him of 1 point. This discrepancy was corrected on review, however, and Petitioner was awarded credit. With regard to the latter, Petitioner was given full credit for the entire question on review. The combined increase did not give him a passing score. With regard to question 2, Clinical II, Petitioner questions Examiner 60's evaluation of his answer, contending the disc was clearly visible and should have been seen by the examiner since the other examiner, 54, who was working in pair with Examiner 60, did see it. Review of the evaluation sheet pertinent to this question reveals that Examiner 60 gave Petitioner no credit, indicating he did not see the disc. Examiner 54, his partner, gave Petitioner credit but, in the comments section of the form, indicated, "not a very good view." On review, examination officials decided to make no change in Petitioner's grade because even Examiner 54, who had given Petitioner credit for having performed the disc, indicated it was not a good view, and on that basis, they could find no basis to change examiner 60's evaluation. Petitioner presented no evidence to show that decision was in error. Petitioner challenged Examiner 54's evaluation of his answer to question 10, Clinical II, indicating, "I did focus on optic disc and estimate C/D ratio (the other examiner saw it and awarded full points). It was very clear to me and I cannot understand why the examiner did not see it." In this case, Examiner 60 gave Petitioner full credit for his answer, but Examiner 54 gave no credit. When examiners disagree, generally examination officials look at the Examiner comments individually. If it is impossible to sustain the negative comments, the negative evaluation is rejected and the applicant is given full credit. Even if the dispute cannot be resolved, partial credit is usually given, and in this case, initially, Petitioner was given half credit. However, upon review it was determined that his challenge to the grade given by examiner 54 on this question had merit, and he thereafter received full credit for the question. This did not give him a passing score, however. With regard to question 14, Clinical II, Petitioner challenged both Examiner 60 and Examiner 54, since both gave him no credit for his performance of the procedure, a Goldman tonometry. Examiner 54 commented that Petitioner "ran out of time" and Examiner 60 commented that he could see no "mires". Petitioner's challenge reads, "My patient was tearing profusely. I applied fluorescein strip and attempted the pressure measurement. There were no mires due to excessive tearing of patient washing out fluorescein. I dried the patient's tears, reapplied another fluoresceins strip, and was retaking the pressure when time ran out. I believe the timer was not set correctly to allow me a full two minutes." This procedure requires the candidate to anesthetize the patient's eye, apply a fluorescein dye, and thereafter measure pressure by evaluation of "mires" observed through the instrument. Resolution of this question involves a study of the background of the examination. So much of the examination as is contained in Part I is conducted with the candidate performing certain procedures on a patient provided by the examination officials. Part II of the examination involves observation of procedures accomplished on a patient provided by the candidate. The patient is first evaluated by examination officials to determine that he or she is qualified to serve and one eye is dilated by examination officials at that time. Thereafter, the patient is released to the applicant who performs the procedures required under the observation of the two examiners assigned to him. In the case of question 14, the procedure requires the candidate to demonstrate accurate measurement of intra-ocular pressure. He is required to anesthetize the eye, apply a fluorescein dye by means of a strip dipped into the substance, and thereafter measure pressure by the use of an instrument which is gently placed against the patient's eyeball and through which "mires" are observed. Petitioner's patient was unknown to him at the time he performed the procedure. Because he did not know anyone to take as his patient, prior to the examination he contacted an optometrist in Miami whose secretary's boyfriend was recommended as a patient. Petitioner accepted him and used him and the patient was qualified as a bona fide patient. Petitioner contends, however, that for various reasons, the patient's eyes teared excessively washing out the fluorescein dye which would have provided the "mires" for observation. Before he could get additional dye into the eye and remove the excess, time ran out. He also claims that he was not given the full two minutes to accomplish the procedure. Both examiners denied Petitioner credit for his performance of this procedure. On review it was felt that Petitioner did not overcome the negative comments of the examiners. Further, Petitioner failed to follow the procedure which he should have invoked at the time, a description of which was included in the examination description and study guide provided to him prior to the examination and which was verbally briefed to him the day of the examination. He should have notified his examiners at the time he noticed the excessive tearing. Under the protocol for this examination, those examiners would not have made a determination at the site but would have brought the problem to the supervisor for review. Petitioner also could have filed a card when he left his station to formally register the complaint - not while the patient is still present, but to be reviewed afterward. There is no indication here that either examiner brought Petitioner's problem to the supervisor because Petitioner did not bring it to their attention. In addition, Petitioner did not fill out a comment form about the problem as he could have done when leaving the area. If he had notified the examiners of the problem, they would have stopped the evaluation at that moment. The complaint procedure is designed to insure the applicant gets a fair and full chance to demonstrate his ability. Petitioner failed to utilize it. Consequently, even on review he was awarded no credit for this question. Petitioner also challenges Examiner 60's evaluation of his response to question 15, Clinical II, and contends: I did provide a good view of the angle structures. My patient had wide open angles clearly visible. The evaluation sheet reflects that both Examiners 54 and 60 gave Petitioner no credit for this question. Examiner 54 commented that Petitioner failed to describe "scleral spur" and Examiner 60 commented, "Poor to no view." On review, it was determined that neither examiner initially gave credit and that there was no evidence presented by Petitioner which would cause a change to that lack of award. Based on the evidence presented at the hearing, it is found that Petitioner has failed to demonstrate a basis for change to the score of "0" given him on question 15. Petitioner also challenges Examiner 60's response to question 16, Clinical II, claiming: I did estimate the pigment deposition. The examiner may have had a poor view (as in other parts) but mine was clear. (The other examiner had a clear view and awarded full points.) Review of the evaluation sheets reflects that Examiner 54 gave Petitioner full credit for this procedure and he was originally awarded 2 points. The examination sheet filled out by Examiner 60 reflects, "No credit. Poor to no view." On review, the award of 2 of 4 points was not overturned. At the hearing, Petitioner engaged in a substantial dialogue with the Board's consultant, Dr. Attaway, as to whether the examiners' view of the applicant's performance could have been affected by either the placement of the "teacher's" mirror, through which the examiners observed the procedure, or the examiners' position with regard to the mirror. Dr. Ottawa conceded that both contingencies could affect the evaluation and in light of the fact that Examiner 54 gave full credit with no adverse comment, and his opinion has been held to be highly esteemed in other incidents involving this Petitioner, it must be concluded that Petitioner's accomplishment of the required procedure was done properly and he should be awarded the additional 2 points. In each case during the examination, the candidate is observed by two examiners. It is not uncommon for examiners to disagree. Between 85 and 88 percent of the time, they agree on their evaluation of a particular candidate's procedure. In the instant case, however, the area of disagreement was somewhat higher. When this happens, generally it means the candidate is borderline; neither clearly very good nor clearly very poor. With regard to the pressure test, (Goldman tonometry), measured in procedure 14, the Board's consultant, agrees that not all patients can be evaluated for pressure utilizing this method, also known as aplination tonometry. In the instant case, the evidence showed that the patient had had his eye dilated upon reporting for qualification more than an hour prior to the accomplishment of the procedure. In the course of the qualification and the procedure evaluations, he had been examined by numerous people. This is not an unusual set of circumstances in an examination situation. It would, however, prolong the procedure and certain individuals tear more than others. As a result, it is possible that in these circumstances, the patient would excessively tear and the fluorescein dye used to present the mires could wash out, giving an improper reading. Here, one examiner indicated he was unable to identify or observe any mires. If the probe used to measure pressure were touching the eye and no mires were presented, that would mean there was no dye left on the eye. However, if the probe was not touching the eye, there would be no mires presented even if there was dye in the eye. Petitioner's witness, Dr. Perry, an expert in ophthalmology, has often had dye wash out of an eye because of excess tearing and has often had difficulty in getting a pressure reading. It can quite often take longer than the 2 minutes allowed during the examination for the procedure and is sometime impossible to get under any circumstances. Aplination tonometry is not a difficult procedure to learn and its use is not reserved to ophthalmologists or optometrists. Routinely, technicians are easily taught to perform it and do so on a repeated basis. Petitioner has worked for an ophthalmologist in the Sarasota area for 5 years as a technician and has done many of the procedures on which he was tested during the examination in issue. Petitioner has done thousands of aplination tonometry procedures and in fact, has performed the procedure on Perry. In those cases of which Dr. Perry is aware, including his own, the procedure was done properly. Dr. Parry agrees that the time limit of 2 minutes allotted at the examination is not unrealistic in the normal situation. However, the procedure often takes more than 2 minutes to perform, and when it does, that fact is usually indicative of a problem with the patient, not the tester. Based on his personal experience with Petitioner's demonstrated ability to properly perform the aplination dynamotor procedure, he is "flabbergasted" that Petitioner had problems with it during the examination. There is more than one way to apply fluorescein dye to an eye for the purpose of pollination dynamotor. One is to apply the fluorescein by strip and the other is to apply a mixture of dye and anesthetic by dropper. The latter method requires a 30 to 60 second wait after application to allow the excess solution to wash out. However, that procedure was not used in this examination, and the strip, which allows immediate application of the probe and observation of mires, was. In the instant case, the patient's eye had been dilated for over an hour when the examiner placed the anesthetic in the eye to be examined and told Petitioner to begin. Petitioner started immediately but was unable to get a mire even though he saw the glow in the patient's eye which indicates the probe was touching the eye as appropriate. When he checked the equipment and found it to be operating properly, he realized that the dye had washed out of the eye because of the tearing and he was attempting to begin the process again when the examiner indicated he had run out of time. Though Petitioner claims the amount of time he was given was improperly measured, he is unable to establish that by any independent evidence. When he asked the examiners for a second opportunity, allegedly he was advised, "Don't worry about it. It's only one question." After the examination, he thought about filing an objection card but, since he claims to have been advised by another optometrist, "not to make waves", he decided against it. Petitioner claims that the examination was fatally flawed for several reasons. The first is that Examiner 60, he claims, was routinely different and more strict with him than was Examiner 54. Rebuttal evidence presented by Ms. Loewe, the examination specialist, indicates, however, that for this examination, Examiner 60 generally graded higher than others across the board. Petitioner also claims that the routine order of tests was not as recommended by experts. Generally, certain procedures are to be accomplished in a certain sequence in a routine examination. Petitioner overlooks, however, that regardless of the sequence of procedures, the examination was not a routine "patient" examination but an examination of the applicant's ability to perform the procedures in question. The considerations dictating a certain sequence in a clinical examination may not be pertinent to the sequence appropriate for a candidate examination, and this argument is without merit. Petitioner also questions the anonymity of the candidate which prevents a knowledge of the candidate's other background and unexamined qualifications. Anonymity is designed to allow a candidate to demonstrate for examiners the substance of his knowledge and skill, is routine, and is found to be appropriate. Further, he claims the location of the examination, the time limit, and the other factors surrounding the conduct of the examination promote nervousness in the candidate and hinder the candidate in his performance of the required procedures to the best of his ability. There was no independent evidence to support this contention or to demonstrate that had the examination been conducted under other circumstances, Petitioner or any other examinee would have performed differently. There are legitimate reasons for the actions taken by the Board, considering the way the examination was conducted. Admittedly the order of tests to be given is not included in the study guide, and the applicant would not know in advance in what order the procedures would be accomplished, but he would have advance information as to which procedures would be examined. Petitioner also pointed out that the patient upon whom he performed the procedures was a stranger to him and that because of his unfamiliarity with the patient and his background, he sustained a handicap more severe than the other candidates. This contention is without merit. All new patients are strangers to the optometrist when they first come for examination. In any case, the candidate is not being asked to treat a patient, but to demonstrate his ability to properly accomplish certain procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's scores on the September 16 - 18, 1988 optometry examination, as revised prior to hearing, be sustained except for that awarded in Question 16, Clinical II, and that he be awarded an additional two (2) points for his performance of that procedure. RECOMMENDED this 19th day of July, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of July, 1989. COPIES FURNISHED: Kenneth W. Gerke, pro se 1831 Mid Ocean Circle Sarasota, Florida 34239 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Lawrence A. Gonzalez Secretary DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Kenneth A. Easley, Esquire General Counsel DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Optometry 1940 N. Monroe Street Tallahassee, Florida 32399-0792
The Issue Is Petitioner entitled to the receipt of an additional point(s) for her cosmetology examination given by Respondent on December 17, 1997?
Findings Of Fact Petitioner was a candidate for the written clinical part of the cosmetology examination given by Respondent on December 17, 1997. Petitioner had requested ADA accommodations for her dyslexia as part of her examination. On December 5, 1997, Respondent through a special testing coordinator of the Bureau of Testing, wrote to Petitioner to inform Petitioner that Petitioner's request for special testing accommodations for the December 17, 1997, cosmetology examination had been approved. Through this correspondence Petitioner was told: The following provision(s) have been approved: READER who will also mark your answers on your scan sheet, time and a half, and a private testing area. * * * If you experience any problems at or during the examination, please notify the examination supervisor on site immediately. In furtherance of its commitment, Respondent provided Ms. Ruth Schneider to read the examination questions and the multiple answer choices in the written clinical cosmetology examination given on December 17, 1997. Before serving in the role of reader Ms. Schneider had several hours of training. Ms. Schneider had attended a meeting at the test site. In her orientation, Ms. Schneider was instructed concerning any changes in procedures from the last time she had worked as part of a group administering examinations, to include the cosmetology examination in this case. Ms. Schneider was informed about how the paper work should be handled in the cosmetology examination at issue, specifically how to protect a candidate's papers. In carrying out her duties in assisting Petitioner at the December 17, 1997 cosmetology examination, Ms. Schneider read Petitioner the questions and choice of answers and marked the letter answer that represented Petitioner's choice for responding to the question. Ms. Schneider did not discuss with Petitioner any possible answer to be given to any question. Ms. Schneider did not suggest an answer to be given. Ms. Schneider was not competent to suggest an answer to be given, not having training as a cosmetologist. Ms. Schneider marked the letter of the answer which Petitioner chose for a given question by using a no. 2 pencil and bubbling in the circle of the letter chosen for the answer as reflected on the cosmetology examination score sheet for Petitioner. Later, when the score sheet was graded by Respondent by the use of a template placed over the score sheet, in the event the answer given by Petitioner was not the answer deemed by Respondent to be correct, a dashed line would be marked through the answer Respondent found acceptable, with the bubbled- in answer chosen by Petitioner remaining on the answer sheet. The bubbling of an answer means that the circle with a letter equated to the answer to the specific question would be filled- in. When the examination had been completed both Petitioner and Ms. Schneider executed a form of the Bureau of Testing referred to as an ADA Site Verification Form. In the execution of that form Petitioner replied in the affirmative to the following questions: Were you provided special provisions as indicated above (this was in relation to Petitioner's time and a half, a reader who will also mark your answers on your scan sheet, and a private testing site)? Were you satisfied with the special provisions provided during your examination? Were you informed in previous correspondence should you experience any problems at, or during examination, to notify the examination supervisor on site immediately? Did a proctor or scribe mark you answers for you? If you answered "yes", were your satisfied that your intended answer choices were marked? Ms. Schneider verified in writing that the special provisions were provided to the candidate as had been referred to above, and that Petitioner did not request the assistance of an examination supervisor during or at the examination. Both Petitioner and Ms. Schneider signed on December 17, 1997, acknowledging the responsibilities of the reader as being: The following guidelines have been established for candidates who use a reader during the written examination. This will ensure that their examination questions and answers are accurately read (and answers marked if necessary). The reader CANNOT INTERPRET, RE-WORD, OR PROVIDE ASSISTANCE IN DETERMINING THE ANSWER to any test question. The reader may read the test question and/or test materials as many times as requested by the candidate. The reader may read the questions in ENGLISH ONLY. The reader CANNOT TRANSLATE the examination questions to any other language. Both the candidate and reader will have an examination book, unless the candidate is visually impaired and does not require the use of a book. The question, answer choices and answers will be read to the candidate by the reader. If a scribe is being used (proctor to mark or transfer answers): The reader will verbally re-read the answer choice and answer to the candidate for verification. After a candidate has completed the examination, and time permits, the candidate has the option to review the examination questions and indicated responses. Due to the length of some examinations, it may be necessary for the reader to take a break. During that time the candidate is also to take a break. The same reader should be used during the entire session for continuity. As stated, Petitioner believes that the answers she gave to questions 19, 24, 25, 30, 46, 50, 55, and 78 were correct. Petitioner had made known her concern about being graded down for her answers to those questions in remarks recorded on the examination review scratch paper, when afforded the opportunity to review the examination results on February 20, 1998. See Section 455.217, Florida Statutes. In addition to Petitioner's testimony concerning her answers to the examination questions at issue, Petitioner presented the testimony of Mr. Bobby W. Parks, Jr., a practicing cosmetologist licensed in Florida, who has also served as an instructor in cosmetology at the Franklin Peterson Academy in Duval County, Florida. Mr. Parks offered his testimony concerning the results of the answers which Petitioner gave to questions 24, 46, 50, 55, and 78. In support of its decision to find the answers Petitioner gave to the subject questions to be incorrect, Respondent presented the witnesses Ms. Carol Nealy and Ms. Beth Hildebrand, cosmetologists licensed to practice in Florida who also serve as consultants to Respondent in the periodic preparation and administration of the cosmetology examination. Ms. Carol Nealy and Ms. Beth Hildebrand also pointed to references within the cosmetology profession that are generally accepted in cosmetology school and within the practice of cosmetology to support their respective opinions concerning the propriety of the answers to the subject questions which Respondent deems to be correct. In response to question number 50, Petitioner chose answer: D. pre-softening solution. The preferred answer by Respondent was: C. cream conditioner. In his opinion, Mr. Parks indicated that either answer would suffice. His opinion is accepted. Respondent's experts' opinions are rejected. Petitioner's answer to question 50 is credited. Otherwise, the answers which Petitioner gave to question numbers 19, 24, 25, 30, 47, 55, and 78 are incorrect in that Petitioner and Mr. Parks in their testimony are unpersuasive, and Ms. Nealy and Ms. Hildebrand are persuasive in their testimony, supported by references, that the answers preferred by Respondent are correct and the answers given by Petitioner are incorrect.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which credits the Petitioner for the answer given to question number 50, as well as the earlier credit extended for the answer given to question number 63, and that otherwise denies Petitioner relief. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1999. COPIES FURNISHED: Patricia A. Crawford Parson 8574 Vining Street Jacksonville, Florida 32210 Patricia A. Crawford Parson Mickey's House of Beauty 1233 Lane Avenue, Suite 23 Jacksonville, Florida 32210 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda A. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joe Baker, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issue in this case is whether Respondent is guilty of violating Section 460.413(1)(n), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of one patient.
Findings Of Fact Respondent is a chiropractor licensed to practice in the State of Florida pursuant to license number CH 0003164. D. B. first visited Respondent on July 10, 1987. She was 36 years old and complained of depression, headaches, numbness, allergies, dizziness, low back pain, neck pain or stiffness, pain between the shoulders, pain or numbness in the shoulders and hands, pain over the heart, itching, frequent urination, earache. The inception of the back and neck pain and headaches, as well as nausea, dated back to an accident almost two years earlier, which followed another accident about a year earlier. Driving, exercise, and stress aggravated these conditions, which interfered with work, sleep, and daily routines. D. B., who was taking pain, muscle-relaxant, and anti-depressant medication, reported that she had not felt really good for almost two years. During the first visit, Respondent performed a neurological examination. He recorded his findings on D. B.'s chart. He also took x-rays and maintained the exposures among the patient's records. Respondent's diagnosis was that D. B. suffered from subluxation complexes. Respondent practices subluxation-based chiropractic, which is a well- recognized school within the profession. The primary purpose of the practice is to use chiropractic adjustment techniques to reduce the subluxation complex, which may consist of two or more misaligned vertebrae in the spine. The theory of subluxation practitioners is that the misalignment produces pressure on the spinal cord, which results in symptoms elsewhere in the body. As the treatment proceeds, the subluxation practitioner monitors the reduction of the complex and any attendant symptoms. However, his primary concern is achieving a biomechanical change in the spinal structure and not symptomatic complaints of the patient. For example, D. B. showed the symptom of a pelvic deficiency. A pelvic deficiency may manifest itself in a leg that, during clinical examination, is shortened or spongy. Using the Activator, Pierce, and Pierce-Stillwagon techniques, Respondent treated D. B. nine times during July, after the initial visit, then about four times per month through November, 1987, and about eight times thereafter with the final treatment taking place in October, 1988. Using abbreviations well-recognized among other subluxation practitioners, Respondent recorded the salient details of each office visit during the entire course of treatment. He noted the numeric value for the pelvic deficiency, as measured during each office visit. He recorded the nature and location of the adjustments that he performed upon D. B. during each visit. The chiropractic records justified the treatment that Respondent administered to D. B., whose symptoms alleviated under his care.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Chiropractic enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED 14th day of December, 1989, in Tallahassee, Florida. 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 14th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1502 Treatment Accorded Proposed Findings of Petitioner 1-2: adopted. 3: rejected as unsupported by the greater weight of the evidence. 4-5: rejected as subordinate. 6-7: rejected as unsupported by the greater weight of the evidence. 8: adopted in substance. and 11-16: rejected as subordinate. and 17-18: rejected as unsupported by the greater weight of the evidence. 19-21: rejected as recitation of testimony. Treatent Accorded Proposed Findings of Respondent 1 and 4-7: rejected as not finding of fact. 2-3: adopted. 8-9: rejected as subordinate. 10-15: adopted. 16-18: rejected as subordinate. 19-21: adopted in substance. 22-37: rejected as not finding of fact, recitation or testimony, and subordinate. COPIES FURNISHED: Patricia Guilford Executive Director Board of Chiropractic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Cynthia Gelmine, Staff Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack R. Elliott Arfken & Elliott 100 Rialto Place, Suite 801 Melbourne, Florida 32901 =================================================================
Findings Of Fact Petitioner qualified for and took the Florida examination for licensure as an optician during the period July 23-25, 1982. He is a licensed optometrist in Louisiana and is currently serving as an optometrist in the United States Air Force. At this examination Petitioner passed all of the examination parts except for the section on Pharmacology in which he received an amended score of A score of 70 is passing. Petitioner contests five of the questions for which his answer sheet was found to be incorrect. These are questions Nos. 6, 13, 16, 24, and 26. During his testimony petitioner conceded his answers to Questions 6, 13, 24, and 26 were incorrect and were therefore correctly so graded on the examination. His sole case rests upon Question 16 and the correct answer thereto. Question 16 provides, with a choice of four answers: Topical hypersomatic solutions (hypertonic saline) are useful in: lubrication. corneal dehydration. C antibiosis. D reducing intraocular pressure. The correct answer is "B", and Respondent selected "D." During his cross-examination Petitioner acknowledged that "D" is an incorrect answer to Question 16. Petitioner testified he thought he had selected answer "C." Expert testimony was submitted that Question 16 is not artfully drafted because of the use of the word "useful." Had the words "in causing" or some other identifying verb been added, the meaning of the question would have been clearer. Since salt has the propensity of absorbing moisture, a saline solution is useful in removing excess fluid from the eye, i.e. corneal dehydration. Eighty-four percent of those who took this examination selected the correct answer to Question 16. Only six percent selected answer "D," the solution selected by Petitioner. One hundred three persons took this examination and 88 passed. When Petitioner's examination was initially graded he scored 64. Following his objections the questions were reviewed two times, with a final grade of 69 being awarded to Petitioner on the Pharmacology portion of the examination. The only answer to the four choices that comes close to describing the propensities of topical hypertonic solution is corneal dehydration. Examination questions are prepared by Respondent's staff and submitted to reviewers for comment prior to the examination being given. Subsequent to the examination, if questions concerning the accuracy of the questions and/or answers arise the examination is again reviewed and if either question or answer is found inappropriate the examinee is not marked off for such a wrong answer.
The Issue Whether Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner took the chiropractic licensure examination administered in November of 1997. The examination consisted of four parts: "x-ray interpretation"; "technique"; "Florida laws and rules"; and "physical diagnosis." The minimum passing score for each part was 75. Petitioner passed the "Florida laws and rules" and "technique" portions of the examination. She failed the "x-ray interpretation" and "physical diagnosis" portions of the examination, with scores of 63.20 and 70.50. respectively. As noted above, Petitioner's evidentiary presentation at hearing addressed only the "physical diagnosis" portion of the November 1997 licensure examination. On this portion of the examination, candidates demonstrated their knowledge of physical diagnosis by responding to test questions, in the presence of two examiners, either verbally or, where appropriate, by demonstrating on a "patient." Their responses were independently evaluated and graded by the two examiners. A candidate's final score was the average of the examiners' scores. Prior to the administration of the "physical diagnosis" portion of the November 1997 licensure examination (PD Test), examiners were provided with written instructions (Examiners' Instructions) regarding their role in the examination process and the standards they should follow in grading candidates' performance. In addition, examiners were required to attend a pre-examination organizational meeting at which they were provided with further instructions and training designed to enhance grading standardization. Questions 11 through 13 on the PD Test covered the subject of orthopedics. Candidates were presented with a written case history to which they were to refer in responding to these questions, as well as to all subsequent questions on the PD Test (including those at issue in the instant case). In question 11, candidates were asked to select (from a list) four orthopedic tests which, under the circumstances presented in the case history, were appropriate to administer to the "patient." As Petitioner conceded at hearing, of the four tests she selected, only three were appropriate. The fourth test she selected, Yergason's Test, was not an appropriate test to administer in view of the "patient's" case history. In question 12, candidates were asked to demonstrate on the "patient" how they would administer the tests they selected in response to question 11. Question 12 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting and properly demonstrating four appropriate tests; three points for selecting and properly demonstrating three appropriate tests; two points for selecting and properly demonstrating two appropriate tests; and one point for selecting and properly demonstrating one appropriate test. Both examiners awarded Petitioner two points for her response to question 12. Although she selected three appropriate tests, she properly demonstrated only two of these three tests. The test she did not properly demonstrate was Tinel's Sign. The "patient's" case history suggested that ulnar nerve, not median nerve, testing needed to be done on the "patient." There are five types of Tinel's Sign tests. One is designed to test the ulnar nerve and involves tapping on the "funny bone." Another is for testing the median nerve and involves tapping on the wrist. Petitioner demonstrated the type of Tinsel's Sign test used to probe the median nerve, when she should have demonstrated the type used to test the ulnar nerve. Because she selected only three appropriate tests and demonstrated only two of these tests properly, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 12. Question 13 required candidates to state what conditions would be suggested by positive results from the tests selected and demonstrated. Question 13 was worth four points. The Examiners' Instructions provided that candidates should be awarded four points for selecting four appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; three points for selecting three appropriate tests and correctly stating, as to each, what condition would be indicated by positive test results; two points for selecting two appropriate tests and correctly stating, as to each, what condition would be indicated by positive results; and one point for selecting one appropriate test and correctly stating, as to that test, what condition would be indicated by positive test results. Both examiners awarded Petitioner two points for her response to question 13. Petitioner did not correctly name the condition suggested by a positive Cervical Compression test, one of the three tests she correctly selected in response to question 11. Because Petitioner selected only three appropriate tests and, with respect to one of these tests (the Cervical Compression test), failed to correctly state what condition would be indicated by positive test results, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner more than two points for question 13. Questions 14 through 16 on the PD Test covered the subject of range of motion. In question 16, candidates were asked to explain the difference and significance between active range of motion and passive range of motion. Question 16 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for answers to question 16. Neither examiner awarded Petitioner any credit for her response to question 16. In responding to the question, Petitioner gave an accurate explanation of the difference between active range of motion and passive range of motion (by noting that the former, unlike the latter, is performed by the patient without assistance), but she did not accurately explain the significance of the difference, as required by the second part of the question. Petitioner incorrectly stated, in attempting to answer this part of the question, that active range of motion is characterized by ligament involvement. Because Petitioner did not correctly answer question 16 in its entirety, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for this question. Questions 17 through 19 on the PD Test covered the subject of neurology and focused upon muscle testing. Question 17 required candidates to name all relevant muscles that that they would test in light of the case history with which they were presented (which reflected that the "patient" had neck pain and numbness radiating down her right arm into her ring finger and little finger). Question 17 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for naming four relevant muscles; one and a half points for naming three relevant muscles; one point for naming two relevant muscles; and a half point for naming one relevant muscle. Neither of the two examiners awarded Petitioner any credit for her response to question 17. There was no connection between the muscles Petitioner named and the nerve root that the symptoms (described in the case history) suggested was the cause of the "patient's" problems. Inasmuch as Petitioner named no relevant muscles, the examiners did not act without reason or in a manner contrary to the grading guidelines set forth in the Examiners' Instructions by failing to award Petitioner any points for question 17. Question 18 required candidates to demonstrate on the "patient" how to test two muscles selected by the examiners. Petitioner was asked to test the "patient's "triceps muscle and the interossei muscles of the "patient's" hand. The Examiners' Instructions provided that candidates should be awarded two points (full credit) for correctly demonstrating both tests and one point for correctly demonstrating one of the two tests. One examiner awarded Petitioner two points for her demonstration in response to question 18. The other examiner did not award Petitioner any points. Accordingly, Petitioner received one point (the average of the two examiners' point awards) for her response to question 18. Petitioner tested the interossei muscles of the "patient's" hand in a manner that is unconventional, but nonetheless acceptable. She did not test the "patient's" triceps muscle correctly, however, inasmuch as she did not, during her demonstration, do what was necessary to isolate that muscle. Because she performed only one of the two tests correctly, awarding Petitioner more than the one point she has already received for her response to question 18 would be inconsistent with the grading guidelines set forth in the Examiners' Instructions. To receive credit for question 19, candidates had to explain and interpret a grade level of muscle testing selected by the examiners. (There are six such grade levels: zero through five. The examiners were instructed to select one of these six grade levels.) Petitioner was asked by the examiners to explain and interpret grade level three testing. Question 19 was worth one point. The Examiners' Instructions provided that no partial credit could awarded for responses to question 19. One examiner awarded Petitioner one point for her response to question 19. The other examiner did not award Petitioner any points. Accordingly, Petitioner received a half point (the average of the two examiners' point awards) for her response to question 19. Petitioner incorrectly stated, in response to question 19, that grade level three testing involves range of motion without gravity. Grade level three testing actually involves range of motion with gravity. Accordingly, pursuant to the scoring guidelines set forth in the Examiners' Instructions, Petitioner should not have received any credit for her response to question 19. Questions 20 and 21 on the PD Test covered dermatomes and sensory testing. Question 20 required candidates to name all relevant dermatome patterns that they would test for in light of the "patient's" case history and to demonstrate one of these tests (selected by the examiners) on the "patient." Petitioner was asked to demonstrate dermatome C5 testing. Question 20 was worth two points. The Examiners' Instructions provided that candidates should be awarded two points for correctly naming all relevant dermatome patterns and correctly demonstrating the selected test, and one point if they correctly named all relevant dermatome patterns or correctly demonstrated the selected test (but failed to do both). One examiner awarded Petitioner two points for her response to question 20. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 20. Petitioner correctly named all of the relevant dermatome patterns, but she incorrectly demonstrated dermatome C5 testing inasmuch as she focused upon the trapezium ridge, rather than the lateral aspect of the arm. Accordingly, pursuant to the grading guidelines set forth in the Examiners' Instructions, Petitioner should have received one point for question 20. Question 21 was worth two points. One examiner awarded Petitioner two points for her response to question 21. The other examiner awarded Petitioner one point. Accordingly, Petitioner received one and a half points (the average of the two examiners' point awards) for her response to question 21. Respondent concedes that Petitioner should have received full credit (two points) for her response to question 21, and there is no evidence indicating otherwise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenge to the failing grade she received on the physical diagnosis portion of the November 1997 chiropractic licensure examination. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue The issue is whether Petitioner is entitled to a passing grade on the chiropractic examination.
Findings Of Fact Petitioner took the November 1999 examination for chiropractic licensure. He passed the written part and the technique portion of the practical part. However, Petitioner failed the physical diagnosis and X-ray interpretation portions of the practical part. The physical diagnosis portion of the examination supplies candidates with a brief case history followed by several questions. Score sheets provide standards for the scoring of responses. Question 3 of the physical diagnosis portion of the examination requires the evaluators to ask the candidate to demonstrate and describe an abdominal examination and explain the significance of a digital rectal examination on the patient, who has complained of cramping, bloatedness, and distention, as well as alternating stool consistency with an irregular pattern of defacation. The evaluators assigned Petitioner no points for his responses to Question 3. For the demonstration of an abdominal examination, Petitioner failed to ensure that the abdominal muscles were relaxed in order to permit a useful examination. Petitioner attempted to listen to the spleen, prior to performing percussion and palpation, but he was not in the left lower quadrant, which is the location of this organ. Petitioner palpated the abdominal area with his fingertips, rather than his palms, and failed to perform deep palpation. Petitioner also failed to outline the liver in his demonstration. The purpose of the digital rectal examination, for this patient, was to detect blood or a palpable lesion. Petitioner incorrectly responded that the purpose of this examination was to perform a prostate examination. Petitioner's misdiagnosis of diverticulitis, in response to Question 8, reflects his limited insight into this patient's condition, for which the correct diagnosis was irritable bowel syndrome, colitis, or spastic colon. Question 17 of the physical diagnosis portion of the examination required a demonstration of the gluteus maximus and peroneus muscles. The evaluators credited Petitioner for the correct demonstration of the gluteus maximums, but not the peroneus. Petitioner incorrectly grasped the patient's calf and ankle, which precluded the isolation of the peroneus. Failing to grasp the metatarsal end of the foot prevented Petitioner from properly isolating the peroneous muscle. At the hearing, Respondent gave Petitioner full credit for his response to Question 24 of the physical diagnosis portion of the examination. Question 3 of the X-ray interpretation portion of the examination required Petitioner to examine two X-ray films, taken two years apart, and render a probable diagnosis. The vast destruction of bone mass suggested a case of neuropathic joint resulting from syphillis, but Petitioner diagnosed post-traumatic joint disease, focusing instead on the patient's physically demanding profession and her age of 37 years. However, the extensiveness of bone destruction over a relatively short period favored the diagnosis of neuropathic joint over Petitioner's diagnosis. Question 5 of the X-ray interpretation portion of the examination required Petitioner to identify the anatomical structures outlined at lumbar-3 on a specific X-ray. Petitioner identified the structures as lamina, but they were the pars interarticulares, which are isthmus between the lamina and pedicle. Question 38 of the X-ray interpretation portion of the examination required Petitioner to explain why the neural foramen, as revealed on an X-ray, appeared enlarged. Rather than cite the nondevelopment of the cervical-6 pedicle, Petitioner incorrectly chose neurofibromatosis, despite the failure of the exposed structures to reveal the angularity characteristic of this condition and the absence of any bony structure subject to the process of deterioration resulting from neurofibromatosis. Despite the concession by Respondent on Question 24 on the physical diagnosis portion of the chiropractic licensure examination, Petitioner has failed to prove that he is entitled to additional credit on the physical diagnosis or X-ray interpretation portion of the chiropractic licensure examination that he should have passed either portion of the examination.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order dismissing Petitioner's petition. DONE AND ENTERED this 26th day of September, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Chiropractic Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Gregory W. Stancel 2256 Iris Way Fort Myers, Florida 33905 Cherry A. Shaw Senior Examination Attorney Department of Health General Counsel's Office 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether Petitioner is entitled to a passing grade on the June 1997 chiropractic licensure examination.
Findings Of Fact Respondent is the agency of the State of Florida with the authority and responsibility to regulate the practice of chiropractic medicine. Petitioner sat for the chiropractic licensure examination administered in June 1997. The licensure examination administered in June 1997 included a section that tested the candidates in making physical diagnoses. This section consisted of an oral practice examination that was administered and graded by two examiners. A standardized system was used to ensure consistency in the questions and in the grading of the questions. To pass the licensure examination, a candidate must pass all sections of the examination, including the physical diagnosis section. Petitioner passed all sections of the exam except for the physical diagnosis section. A score of 75 was required to pass the physical diagnosis section of the exam. Petitioner received a score of 70.5 on the physical diagnosis section. Consequently, he failed that section of the exam and the overall exam. Petitioner originally challenged the grading of Questions 3, 13, and 26. At the formal hearing, Petitioner withdrew his challenge to Question 13. Questions 3 and 26 were not multiple choice questions. The candidate was required to perform physical examinations of "patients" and to answer one or more questions about the examinations. The candidate was to provide the best answer to each question. Question 3 was worth 5 points and Question 26 was worth 8 points. A candidate could receive partial credit for his or her answer to Question 3. Partial credit was not available for Question 26; a candidate would receive either zero or eight points for his or her response. The grade was based on the physical examinations and on the answer to each question. Question 3 required the candidate to examine the patient's eyes and answer the question: "What does papilledema indicate?" 1/ Petitioner examined the eyes of the patient and answered that papilledema indicates that the patient's cerebral spinal fluid pressure has increased. Petitioner was awarded no credit for his examination or his answer to the question. Petitioner presented no evidence at the formal hearing to demonstrate that he was entitled to credit for his performance on the eye examination; however, Petitioner did assert that he was entitled to credit for his response to the question. The correct answer to Question 3 is that papilledema indicates an increased intracranial pressure. Papilledema is a non-inflammatory swelling of the optic nerve-head resulting from increased intracranial pressure. An increase in the cerebral spinal fluid pressure is one of many causes for papilledema. Other causes of increased intracranial pressure that may result in papilledema, unrelated to increased cerebral spinal fluid pressure, include bleeding, tumors, headaches, and hypertension. Petitioner was not awarded credit for his answer to Question 3 because his was not correct. 2/ Question 3 was not ambiguous. The decision of the examiners to award no points for Petitioner's response to the question pertaining to papilledema was not arbitrary, capricious, or an abuse of discretion. There was no evidence that Petitioner was entitled to additional credit for his performance on the eye examination. Question 26 presented the candidate with a patient with symptoms and required the candidate to specifically diagnosis the patient's condition. The correct diagnosis was stenosing tenosynovitis of the abductor pollicis longus and the extensor pollicis brevis, 3/ which is also known as de Quervain's disease. Petitioner's diagnosis was tenosynovitis. That diagnosis is incomplete. Petitioner incorrectly named the muscles involved. When asked to be more specific, Petitioner stated that the patient had tendonitis, which is a more general diagnosis. Petitioner was awarded no credit for his answer to Question 26 because he gave an incomplete diagnosis, was not specific in his answer, and incorrectly identified the muscles involved. Question 26 was not ambiguous. The decision of the examiners to award no points for Petitioner's diagnosis was not arbitrary, capricious, or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order dismissing Petitioner's challenge to the grades he received to Questions 3, 13, and 26 of the physical diagnosis portion of the chiropractic licensure examination administered in June 1997. DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of February, 1998.
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
