The Issue The issues are whether Respondent is guilty of making or filing a false report signed in the capacity of a licensed chiropractic physician, in violation of Section 460.413(1)(j), Florida Statutes, and, if so, the penalty.
Findings Of Fact Respondent has been a licensed chiropractor in Florida since 1978, holding license number CH0002696. Petitioner requires licensed chiropractors to file Mandatory Practitioner Profile Questionnaire Packets (Profiles). The subject Profile was due on or before April 15, 1999. The Profile asks the licensee to supply various items of information and answer several questions. Section II of the Profile requires information concerning "medical education." In response to the question of what medical school Respondent attended, he wrote: "Logan 'Quack Con-Artist' School of Chiropractic." In response to the type of his degree, Respondent wrote: "Quack Con-Artist Chiropractic Degree." In response to questions concerning medical training, Respondent answered: "'Fraudulent' Automobile Personal Injury Cases (Robbing Insurance Companies)" and "'Fraudulent' Workers Compensation Cases (Robbing Insurance Companies)." Respondent also added to these responses, as well as the responses cited in the preceding paragraph, the following: "Caveat: see letter dated April 7, 1999 sent to Gloria Henderson, Division Director)." Section VIII of the Profile requires information concerning criminal offenses. This section asks: "have you ever been convicted or found guilty, regardless of whether adjudication of guilt was withheld, or pled guilty or nolo contendere to a criminal misdemeanor or felony in any jurisdiction?" The question then states: "If "YES," briefly describe the offense(s), indicate whether the conviction is under appeal, and attach copy of notice of appeal." The form supplies three lines for each of these items of information. Respondent answered "no" to the first question in Section VIII and left the remainder of the section blank. The Profile concludes, immediately above the signature line: "I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 455.624, 458.327, 458.331, 459.013, 459.015, 460.413, 461.013, 775.082, 775.083 and 775.084, Florida Statutes." Respondent signed on the signature line and added the date of April 7, 1999. Immediately beneath the signature line, Respondent added: "Notice: Signed under caveat--see letter dated April 7, 1999 sent to Gloria Henderson, Division Director." Respondent's four-page letter to Gloria Henderson dated April 7, 1999, references the Profile, notifies Ms. Henderson and Petitioner of Respondent's intent to sue, and demands that Petitioner omit Respondent's listing from a website of chiropractors because, in part, "I do NOT accept their 'valueless treatment' known as an "adjustment" (it is a waste of money and time), and because I practice health care from an "Allopathic" (medical approach) point of view, including but not limited to, surgery, drug prescription, physical therapy " Respondent states in the letter that the Petitioner's failure to incorporate his comments in all computer files listing him as a chiropractor will result in his filing a federal action under tort and constitutional law seeking $1 million plus punitive damages. The final caveat in the April 7 letter states: My (Roy A. Day) signature on the instant letter, and the associated completed questionnaire, reflects the denial of Roy A. Day to have meaningful access to so-called "licensed attorney" courts of law, and the associated denials of each and all discovery, and trial by jury, and the right to each and all appeals, and the denial to write a brief on appeals, and each and all associated "railroading" of Roy A. Day, with the overlay for "licensed attorney" courts of law to deny the law, facts and evidence existed when they pertained to Roy A. Day, since Roy A. Day is not represented by a so-called "licensed attorney" at $300.00 per hour in artificial-monopolistic legal fees. In addition, the signature reflects each and all associated "forced and coerced" action, specifically, Roy A. Day has been denied "due process and equal protection of the law." On February 6, 1995, Pinellas County Circuit Court entered an Order of Probation. The Order states that Respondent pleaded guilty to aggravated stalking, interception of oral communication, and uttering a check with a forged endorsement. The Order withholds adjudication and places Respondent on probation for two years. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of two counts of the third-degree felony of uttering a check with a forged endorsement, in violation of Section 831.02, Florida Statutes. The checks totaled approximately $20,000, and, sometime between March 13 and May 5, 1993, Respondent passed each check knowing that the signature of his brother, Donald Day, was forged. For each count, the court sentenced Respondent to one year in jail with credit for 130 days he had already served in jail, and the sentences ran concurrently. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of the third-degree felony of aggravated stalking, in violation of Section 784.048(3), Florida Statutes. The stalking consisted of repeated and harassing telephone calls that Respondent made to the house of a person who had, at one time, expressed interest in purchasing a home in which Respondent had an interest, but later decided not to pursue the purchase. The court sentenced Respondent to one year in jail with credit for 133 days that he had already served in jail, and this sentence ran concurrently with the sentences for uttering a check with a forged endorsement. Petitioner lacked a copy of a judgment concerning the interception of oral communications. This offense arose out of Respondent's surreptitious recording of a conversation that he had with a police officer who was investigating the stalking charges. Absent a copy of the judgment, however, insufficient evidence of this conviction exists for the purpose of this disciplinary case. At the final hearing, Respondent explained that he did not disclose these criminal convictions on the Profile because doing so would somehow implicate him as a "co-conspirator" in the injustices perpetrated upon him by the authorities involved in prosecuting these offenses. Respondent falsely failed to disclose on the Profile his convictions for aggravated stalking and uttering a check with a forged instrument. His failure to disclose this information constitutes fraudulent concealment of these criminal offenses. In a fairly straightforward case, Respondent has filed nearly 250 pleadings containing thousands of pages. He also abused the subpoena power of this tribunal by subpoenaing judges and court officials from every level of the federal and state judiciaries. Last but not least, Respondent has defamed and discredited numerous persons without apparent reason, although some question exists whether Respondent is capable of exercising consistent control over the impulses leading to at least some of these utterances. The crimes of which Respondent was convicted may have arisen out of family disagreements, possibly concerning the sale of a family home. Respondent may be obsessively preoccupied with actual or perceived injustices that he suffered as a result of this transaction. Undoubtedly, Respondent compulsively litigates everything that has the most remote bearing upon this transaction, using court files as archives for materials that he believes will vindicate him, despite an ardent and often- expressed repulsion for judges, lawyers, and others connected with the legal system. No penalty but revocation is suitable under the circumstances, absent a showing by Respondent that he has commenced or is continuing therapy and that the prognosis is reasonably good. The record lacks such evidence. Respondent is not unintelligent, nor is he entirely devoid of insight. His thinking, although at times disordered, is capable of impressive organizational efforts, as best revealed by his meticulous organization in his proposed recommended order of what otherwise seemed to be a bewildering variety of materials that Respondent has seen fit to file in this case. Although his behavior seems at times compulsive, Respondent was capable of a certain level of self-restraint, at least during the hearing and when not directly confronting the underlying transaction or crimes. If they occur at some point in the future, successful diagnosis and treatment of Respondent should inform Petitioner's interpretation of the events and behaviors described in this Recommended Order, if Respondent seeks relicensure as a chiropractor.
Recommendation It is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Respondent guilty of violating Section 460.413(1)(j), Florida Statutes, and revoking his license. DONE AND ENTERED this 19th day of July, 2001, 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 19th day of July, 2001. COPIES FURNISHED: Joe Baker, Jr. Executive Director Board of Chiropractic Medicine 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Theodore M. Henderson Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Wings S. Benton, Senior Attorney Agency for Health Care Administration Office of General Counsel Medical Quality Assurance Practitioner Regulation--Legal Post Office Box 14229 Tallahassee, Florida 32317-4229 Roy A. Day Post Office Box 33 Tarpon Springs, Florida 34688-0033
Findings Of Fact Petitioner applied for and took the 1982 acupuncture examination consisting of four parts. He failed Part IV the clinical practical, or hands- on, part of the examination dealing with needle insertions, manipulation and needle removal, patient care, sanitation and antiseptic application. In 1983 the Florida Legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section. In December, 1984, Petitioner was notified in writing as to his 1984 examination results and was advised in an accompanying document that the deadline for filing an application to retake the acupuncture examination in 1985 would be May 24, 1985. That same accompanying document also advised Petitioner that candidates who failed either section 1 or section 2 of Part III must retake both section 1 and section 2 of Part III. Petitioner made the decision that he would not take the 1985 acupuncture examination but rather would wait until the 1986 acupuncture examination was given. However, when Petitioner "got laid off" from his employment, he decided to take the 1985 examination, mailing his application therefor the day before the deadline. In July, 1985, Petitioner retook Part III of the acupuncture examination. Petitioner received a score of 54 on the written practical section and a score of 65 on the clinical practical section. A score of 70 or greater on both sections is required in order to achieve a passing grade for Part III. Petitioner requested a review of his grades. That review revealed that although errors were found in scoring the written practical section, Petitioner's adjusted grade on that portion of the practical Part of the examination remained below the required 70. The review of the clinical practical section of that Part of the acupuncture examination revealed that both examiners who graded Petitioner on the clinical practical section evaluated Petitioner identically as to those areas in which Petitioner's performance was inadequate, agreeing item by item.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner failed both sections 1 and 2 of Part III of the 1985 acupuncture examination; denying Petitioner's request that his grade be set aside and that he be permitted to retake the examination without first completing the educational requirements; and denying Petitioner's application for certification to practice acupuncture in the State of Florida. DONE and RECOMMENDED this 24th day of October, 1986, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1986. COPIES FURNISHED: Marcelle Flanagan, Executive Secretary Board of Acupuncture 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce Alexander, Esquire 9200 South Dadeland Boulevard Suite 515 Miami, Florida 33156 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent, Joseph A. Buttacavoli, is a licensed chiropractor, having been issued license number 00335. The Respondent practices chiropractic at 7162 Beneva Road, Sarasota, Florida 33583. (See Prehearing Stipulation.) On July 6, 1981, Jeffrey Goldman responded to the Respondent's newspaper advertisement offering a free examination. (See Prehearing Stipulation; Tr. 15.) On July 6, 1981, Goldman was complaining of pain in the neck radiating into the left shoulder. The pain was recent in origin, having started a few weeks prior to July 6, 1981. Goldman had suffered similar problems during the past 10 or 12 years on an intermittent basis, but this instance was more intense than previously experienced. (Tr. 12, 13.) The Respondent performed a free examination consisting of certain orthopedic and neurological tests. (Tr. 73, 77.) The Respondent did not record in writing the results of this examination. (Tr. 117.) Two of the tests were positive on Goldman's left side. (Tr. 73-77.) After completion of the examination, the Respondent tentatively diagnosed a pinched nerve in the neck and recommended to Goldman that x-rays be taken. (Tr. 78.) Goldman consented to the x-rays and was charged $80 for four x-rays which were taken. (See Prehearing Stipulation.) After the x-ray examination, the Respondent concluded that Goldman had a straightening of the normal cervical spine, some arthritic spurring and disc degeneration at the C4/C5 and C5/C6 level, and several vertebral misalignments. (See Prehearing Stipulation; Tr. 87.) The Respondent advised Goldman that his condition was serious and recommended treatment for 90 days. (See Prehearing Stipulation.) The Respondent told Goldman what the 90 days' treatment would cost and advised Goldman that the cost would be less if paid in advance. The Respondent practices a chiropractic technique known as Grostic or orthospinology. (Tr. 53, 55.) A diagnosis cannot be reached without x-rays using the Grostic technique, and the Respondent takes x-rays in every case except those in which the problem is muscular or x-rays are refused by the patient. (Tr. 115, 116.) The preliminary or free examination is the basis for the Respondent's recommending that x-rays be taken. (Tr. 117.) In the Grostic technique, a complex analysis of x-rays is the basis for a final diagnosis. This requires that x-rays be taken of the patient to apply the technique. (Tr. 59-63, 117-118.) In addition to the x-rays, which were kept by the Respondent as part of the record, Goldman's history/interview form was also maintained. (Tr. 48.) The x-rays on file and the medical history form constitute sufficient justification for the recommendation made by the Respondent to Goldman. The diagnosis of Goldman's problem was based upon his history, a physical examination and x-ray findings. These findings were reviewed by Dr. George Stanford Pierce, who verified the Respondent's suggested course of treatment based upon the records the Respondent maintained. (Tr. 150.) Goldman refused further treatment by the Respondent. (Tr. 26.) No evidence was received that the Respondent practiced chiropractic with less than the required level of care, skill and treatment recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed by the Petitioner against the Respondent, Joseph A. Buttacavoli, be dismissed. DONE and RECOMMENDED this 12th day of July, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Michael R. N. McDonnell, Esquire 600 Fifth Avenue, South, Suite 301 Post Office Box 8659 Naples, Florida 33941 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue presented is whether or not Petitioner passed the 1987 chiropractic examination.
Findings Of Fact Petitioner, Mary Campilii, was a candidate for the May 14-17, 1987 chiropractic examination. Petitioner achieved an overall score of 72, as reflected by an upward revision to her original score of 66, on the practical section of the examination. Petitioner achieved a score of 76 on the Florida laws and rules section of the examination. A minimum score of 75 is required to pass both the practical and laws and rules sections of the examination. Petitioner has challenged the method of grading utilized by the Respondent contending that it is subjective as it elates to her, and did not properly reflect her level of achievement and knowledge to the questions that she answered on the May 1987 examination. Petitioner failed to demonstrate that she demonstrated expert or superior knowledge in her answers to any of the questions on the May 1987 exam that she now challenges. The oral practice examination for chiropractic certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for license certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3, which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimum competency and a score of 4 is given when a candidate demonstrates superior or expert knowledge in the subject area tested. Petitioner presented Thomas P. Toja, an expert in grading chiropractic examinations for the Board, who offered his opinion that had the grading system utilized by Respondent been different, i.e. a system whereby a candidate could be accorded a score somewhere between a 3 and 4, when such candidate has demonstrated more than minimum competency but less than superior or expert knowledge in the subject area tested, a candidate, such as Petitioner, could have achieved an additional 3 points to her score of 72, and thereby received a passing score of 75. Petitioner has not, however challenged validity of the existing rule which permits Respondent to utilize the grading procedures applied in this case. Stephen Ordet, a licensed chiropractor in Florida for more than 7 years was received as an expert in the grading of chiropractic examinations in Florida, and was one of the graders during the May 1987 examination. Ordet's opinion, which is credited, was that Petitioner did not earn a score of 4 on any of the questions that she now challenges, and was correctly assigned a score of 3 for each of the responses she gave to questions she challenged. Thomas P. Hide, a chiropractor who specializes in the area of sports related injuries, was tendered and received as an expert in the area of reviewing x-rays and the grading of the chiropractic examination. Hide credibly testified and it is found that Petitioner was properly assigned a score of 3 on questions 8, 12, 20, 22, 28, 29, 30 and 33.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that she met the minimum criteria to pass the challenged chiropractic examination and deny her request for licensure. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Mary Camiplii 2921 Buckridge Trail Loxahatchee, Florida 33470 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner's challenge to the failing grade he received on the physical diagnosis portion of the May 2001 chiropractic licensure exam should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a chiropractic doctor who has been licensed to practice in the state of Ohio since 1993. He maintains an active practice in Ohio, and he currently sees approximately 190 patients per week. Petitioner filed an application with the Department for a Florida chiropractic license. Applicants for licensure are required by statute and rule to take the licensure exam developed by the Department. Petitioner took the exam in May 2001. The exam consists of four parts, three practical and one written. The practical parts test the applicant on physical diagnosis, X-ray interpretation, and technique; and the written part tests the applicant on the Florida laws and rules regulating chiropractors. An applicant for licensure must receive a score of 75 on each part to pass the examination. Petitioner passed the written part of the exam as well as the X-ray and technique practical parts; however, on the physical diagnosis part, he received a failing score of 70. As a result, he failed to pass the exam and may not receive a Florida chiropractic license.2 The physical diagnosis part of the exam consisted of 26 tasks which the applicant was required to perform within the allotted time of 70 minutes. The physical diagnosis part of the chiropractic licensure exam is developed by a team of consultants retained by the Department. The team consists of licensed chiropractic doctors with varied practices and at least ten years of experience. The team derives the exam questions from case studies from prior administrations of the exam. The team meets on several occasions to refine the case studies and rework the questions. The team also develops and refines the answers to the questions based upon their research and a consensus reached after debate. After the exam questions are finalized and before the administration of the exam, the Department holds standardization sessions which all of the examiners are required to attend. The purpose of the standardization sessions is to ensure that each examiner knows what is a correct answer and what is an incorrect answer for each question. This, in turn, ensures consistency in the evaluation and grading of all applicants. The examiners who evaluated Petitioner's performance on the physical diagnosis exam attended all of the standardization sessions. The applicant's performance of each task in the physical diagnosis part of the exam is independently graded by two examiners. The purpose of the independent grading is to eliminate any potential bias in the grading and to increase reliability in the scoring of the exam. The examiners independently assigned a letter score -- A, B, or C -- to the applicant's performance on each task. A score of "C" represents full credit for the task. A score of "B" represents partial credit for the task. A score of "A" represents no credit for the task. Where the examiner awards less than full credit, he or she provides a notation on the score sheet regarding what the applicant failed to do properly. The letter score was translated into a numerical score based upon the pre-determined point value for the task. Each of the tasks at issue in this proceeding -- numbers 13, 14, 18, 21, and 22 -- were worth 4 points each. A grade of "C" for these tasks translates into a raw score of 4 points; a grade of "B" on these tasks translates into a raw score of 2 points; a grade of "A" on these tasks translates into a raw score of 0 points. The raw scores resulting from each examiner's grades are totaled separately and, then, those totals are averaged. The averaged score is what is reported to the applicant as his or her final score on the physical diagnosis part of the exam. As noted above, Petitioner received a score of 70 on that part. Task 13 (S1 Dermatome) Task 13 contained two sub-tasks. To receive full credit for Task 13, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the S1 dermatome, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 13. Thus, Petitioner received only two of the possible four points for that task. A "dermatome" is an area of the body surface served by a particular spinal nerve. The S1 dermatome is the area of the body surface served by the S1 nerve. The S1 dermatome encompasses an area which begins on the back of the leg below the calf, runs down the back of the foot over the heel, along a portion of the bottom of the foot to the toes, and then around the outside (lateral) portion of the foot. The expert testimony and the scientific texts introduced in this case vary on the exact portion of the bottom of the foot included in the S1 dermatome. Some indicate that it encompasses only that area from the outside of the foot to the fourth or fifth (little) toe, while others indicate that it extends from the outside of the foot all the way to the midline of the foot at the third (middle) toe. The common element in all of the expert testimony and the scientific texts is that the location of the S1 dermatome on the bottom of the foot is towards the outside of the foot rather than the inside (arch) of the foot. The S1 dermatome is tested by touching the dermatome with an instrument to determine whether the patient exhibits any sensory reaction, i.e., whether and to what degree the patient feels the touch. The dermatome can be tested without tracing its entire area; however, in order to map out the entire dermatome, its entire area would be tested. On the video tape of Petitioner's performance of Task 13, it appears that he is attempting to test the S1 dermatome, rather than demonstrating its area as the task requires. Petitioner can be heard telling the patient that he is going to "test" the dermatome level by touching the patient's foot to see if the patient can feel it. Immediately after these comments, one of the examiners (Dr. Weiss) can be heard on the video tape telling Petitioner to "trace the path of S1." Dr. Weiss also can be heard asking Petitioner to show the examiners where S1 starts and where it goes. Petitioner performed Task 13 by making a single straight-line motion starting on the back of the leg below the calf, then proceeding downward and under the foot, and ending near the big toe. Petitioner repeated the movement, again ending near or even slightly to the inside (arch side) of the big toe. By making only a single straight-line motion along the bottom of the foot, Petitioner failed to demonstrate the area of the S1 dermatome. At most, Petitioner demonstrated the line separating the S1 dermatome from the L5 dermatome, which is adjacent to the S1 dermatome on the bottom of the foot. As noted above, however, the S1 dermatome extends no further than the mid-line of the foot and therefore the line demonstrated by the Petitioner could not have been the boundary of the S1 dermatome. Even if Petitioner understood the task as "test the S1 dermatome" rather than demonstrate its area, the weight of the evidence shows that Petitioner did not correctly test the dermatome along the bottom of the foot. As discussed above, Petitioner's instrument appeared to travel along the inside (arch) of the bottom of the foot rather than the outside of the bottom of the foot. The S1 dermatome does not extend inward on the bottom of the foot beyond the mid-line and it certainly does not extend to the big toe. The notes written by the examiners on the grading sheets indicate that the "B" grade that Petitioner received on Task 13 was based upon the his tracing of an incorrect area on the bottom of the foot. The notes written by Dr. Weiss, the examiner who testified at the hearing, stated "traced wrong area under foot." The notes written by the other examiner similarly stated "S1 under foot incorrect." The notes were corroborated at hearing by the videotape and the testimony of Dr. Mathis. Because Petitioner failed to properly demonstrate the S1 dermatome, the examiners properly gave him only partial credit on Task 13. Task 14 (Acquilles Reflex Test) Task 14 contained two sub-tasks. To receive full credit for Task 14, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the Achilles reflex test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 14. Thus, Petitioner received only two of the possible four points for that task. Petitioner tested the Achilles reflex by lying the patient face down (prone) and then tapping a reflex hammer directly on the Achilles tendon of each foot. Petitioner did not dorsiflex either foot before striking the tendons. The taps elicited a reflexive response which can be clearly seen on the video tape of Petitioner's exam. Had the tap not elicited a response, Petitioner testified that he would have pursued alternative means of testing the reflex. The expert testimony and scientific texts introduced at the hearing show that there are several alternative ways to test the Achilles reflex, all of which are professionally accepted. One way is to tap directly on the Achilles tendon as Petitioner did. This can be accomplished with or without dorsiflexing the foot. The Department was looking for the candidate to pre-stress the tendon by dorsiflexing the foot prior to striking the tendon with the reflex hammer. The evidence does explain why dorsiflexing the foot would be the preferable method of testing the Achilles reflex under the facts of the case study. Another way to test the Achilles reflex is for the doctor to dorsiflex the foot by pressing his or her fingers against the ball of the patient's foot and then tap his or her fingers with a reflex hammer. Where the ankle is swollen or it is too painful to strike the tendon itself, this method of eliciting the reflex is preferred. The case study on which Task 14 was based indicated that the patient had "severe pain and swelling in the right calf, ankle, and heel." The case study did not indicate that the patient had a ruptured Achilles tendon, but that injury could not be ruled out based on the case study. In such circumstances, the expert testimony and scientific texts indicate that the preferred method of checking Achilles reflex would not be striking the tendon itself. Task 18 (X-Ray of 5-year Old) Task 18 contained two sub-tasks. To receive full credit for Task 18, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to answer the question of whether he or she would X-ray a 5-year-old child with certain symptoms, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 18. Thus, Petitioner received only two of the possible four points for that task. The question required applicants to answer "yes" or "no." They were not permitted to explain their answer. The question provided only limited information regarding the child and his medical history. The question did not state whether the parent had signed a consent form authorizing treatment of the child. Without parental consent, it would not be proper for the doctor to render any medical treatment to the child. It would have been reasonable for Petitioner to assume that any necessary consent forms had been signed. Petitioner did not request any clarification on this point from the examiners nor did his response during the exam mention the lack of a signed parental consent form. Instead, Petitioner explained that he would not X-ray the child because of the apparent severity of the child's injury and a concern that the child may have an injury "that wouldn't be chiropractic in nature." Based on these concerns, Petitioner stated during his exam that he would refer the child to his family physician. At hearing, Petitioner indicated that his concern regarding the severity of the child's injury was based upon the case study which indicated that the child was holding his neck. Petitioner considered this to be Rust's Sign. Petitioner did not request any clarification from the examiners regarding the manner in which the child was holding his neck. The expert testimony and scientific texts introduced at hearing indicate that Rust's Sign is most commonly exhibited by the patient supporting his or her head by holding the chin, rather than the neck. The patient holds his or her head to compensate for some muscular, ligament, or disk damage, which causes the neck to be unable to support the head. Even if Petitioner construed the limited case history provided to be evidence of Rust's Sign, the proper course of treatment would not have been to refer the patient to a family physician as Petitioner stated during his exam. Instead, the expert testimony and scientific texts indicate that the proper course of treatment would have been to immediately stabilize the neck with a cervical collar or something similar and immediately perform imaging (e.g., X-ray) to determine the source of the injury. Petitioner is not entitled to additional points for Task 18. Task 21 (Gluteus Maximus Test) Task 21 contained two sub-tasks. To receive full credit for Task 21, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the second sub-task. Only the first sub- task, which required the applicant to perform the gluteus maximus muscle test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 21. Thus, Petitioner received only two of the possible four points for that task. The gluteus maximus muscle is the largest muscle in the body and is largely responsible for the shape of the buttock. It extends and laterally rotates the hip joint. The muscle is tested by having the patient lie face down (prone) with his or her knee bent 90 degrees or more. The importance of bending the knee is to isolate the muscle. While the doctor holds the patient's hip to stabilize it and applies downward pressure to the back of the thigh, the patient attempts to raise his or her leg. The video tape of Petitioner's exam shows that Petitioner had the patient in the prone position. Petitioner did not have the patient bend his knee. Nor did Petitioner have the patient lift his leg up. Instead, the tape shows Petitioner pulling the leg outward as the patient attempted to move the leg inward. Petitioner did not rotate the leg. The expert testimony and scientific texts introduced at hearing show that the test performed by Petitioner was the proper test for the gluteus medius or gluteus minimus rather than the gluteus maximus. This evidence corroborates the notation on one of the examiners' score sheet which stated "did gluteus med[ius]?" And see Endnote 1. Indeed, it appears from the video tape that Petitioner misunderstood the task he was to perform. When Petitioner first read the question for Task 21, he correctly read the two tests he was to perform, gluteus maximus and soleus. Petitioner then performed the soleus test. Then, he could be heard saying "gluteus medius" as if to remind himself what test he was to perform. Immediately after that comment, one of the examiners suggested that Petitioner reread the question. He did so, correctly reading "gluteus maximus." Petitioner then set up the table and got the patient situated. Then, one of the examiners asked which muscle test Petitioner was going to perform. He stated "gluteus medius." Petitioner then stood over the patient for a minute or so, apparently thinking to himself, and then performed the test as described above. Any confusion regarding the test to be performed was not a result of the form of the examination or the conduct of the examiners. The examination clearly indicates that the test to be performed is gluteus maximus. The words "gluteus maximus" are in bold type. The examiners attempted to clarify Petitioner's confusion by giving him an opportunity to correct himself after he first misstated the test to be performed. Task 22 (Trendelenburg Test) Task 22 required the applicant to perform two distinct tests and state what he or she is looking for in each test. To receive full credit for Task 22, the applicant was required to properly perform each test and state what he or she is looking for in each test. The only dispute in this proceeding is whether Petitioner's statement of what he was looking for in the Trendelenburg test was the correct response. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 22. Thus, Petitioner received only two of the possible four points for that task. The Trendelenburg test is used to evaluate the ability of the hip abductors, primarily the gluteus medius, to stabilize the pelvis on the femur. The test is performed by having the patient stand facing away from the doctor. The patient then lifts one of his or her legs. A positive sign is where the pelvis/hip of the lifted leg tilts downward instead of rising. Reference to the pelvic/hip tilt was what the Department considered to be a correct answer for Task 22. When performing the Trendelenburg test, the doctor should stand behind the patient with his or her hands on the patient's hips. This placement of the hands serves two purposes. First, it allows the doctor to feel even slight movement of the pelvis/hip in order to detect even a mildly positive sign. Second, it allows the doctor to stabilize the patient in the event that the patient loses his or her balance. The video tape of Petitioner's exam shows that he correctly performed the Trendelenberg test. He was positioned behind the patient with his hands on the patient's hips. He directed the patient to raise his right leg. Then, he stated that if the patient were to fall over, there would be a gluteus medius problem. Dr. Weiss requested clarification from Petitioner, specifically asking him what he was looking for. Again, Petitioner stated that the patient would fall over or lose his balance. Petitioner never used the word "lurch." The Trendelenberg test could cause the patient to lose his or her balance and "lurch" in the direction of the lifted leg or even fall over, but only in cases of severe weakness in the gluteus medius muscle. Such a response would be a positive Trendelenburg sign. The most common positive sign, however, is a downward tilt of the pelvis/hip on the side of the lifted leg. All of the scientific texts, including that offered by Petitioner, identify the tilt as the positive sign which the doctor should be looking for. The tilt is what causes the "lurch" that occurs in more severe cases. If the doctor is looking only for a "lurch," he or she might miss the tilt and thereby miss the most common positive sign of the Trendelenburg test. Because Petitioner stated that he was looking for the patient to fall over or lose his balance, rather than looking for the pelvis/hip tilt, his response to Task 22 was incomplete at best. Therefore, Petitioner is not entitled to any additional points for Task 22. Disruptive Noise During Petitioner's Examination The physical diagnosis part of the May 2001, licensure exam was administered in several conference-type rooms of a hotel. Approximately five or six applicants were administered the exam in the same room as Petitioner. Several of those applicants went before Petitioner and several went after him. While Petitioner was taking the examination, loud noises could be heard. On the video tape of Petitioner's exam, the noises sounded like loud scraping, scratching, and rumbling of metal, as if a large piece of equipment or furniture was being moved in a nearby area of the hotel. At other points, the noises sounded like thumping or banging. In his testimony, Petitioner described the noise as sounding like a mechanical tool or jack-hammer. Dr. Weiss, one of the Department's examiners who graded Petitioner's performance on the physical diagnosis part of the exam, testified that he heard the noise as well and described them as construction noises outside of the room. The noise was not continuous throughout the exam. The noise first could be heard on the video tape near the end of Petitioner's performance of Task 1. It was very loud, but lasted only for several seconds before subsiding. It could also be heard at a very loud level during Tasks 2, 4, 7, and 17, again for only a few seconds each time. The noise could also be heard during Tasks 6, 8, and 16, but at a much lower level. Immediately after the noise first occurred during Task 1, one of the examiners asked Petitioner if the noise was bothering him. Specifically, the examiner asked, "Is that distracting you?" To which Petitioner responded "No, it’s okay." Had Petitioner indicated that the noise bothered him, Dr. Weiss testified that the examination would have been stopped until the source of the noise problem could be addressed. Neither Petitioner nor the examiners mentioned the noise during the remainder of the exam. The video tape does not show any significant difference in Petitioner's demeanor during the tasks where the noise could be heard than the remainder of the tasks. Throughout the test, Petitioner looked somewhat uncomfortable, but not any more so than would be expected under the pressure of this type of exam. At most points where the noise could be heard, Petitioner appeared to be oblivious to it because he was so deep in concentration on the task at hand. Petitioner completed the physical diagnosis exam with more than 17 minutes of the allotted 70 minutes remaining. After he completed his exam, Petitioner filled out a Candidate Concern Form on which he stated that the noises made it hard for him to concentrate. The form was provided to Adrian Washington who was the Department employee in charge of administration of the exam. Mr. Washington informed the two examiners who evaluated Petitioner that a concern had been filed and requested that they independently describe the incident. Dr. Weiss' written comments on the incident referred to the noises as "distracting to me." However, Dr. Weiss' comments, as well as the comments of the other examiner, stated that Petitioner was asked during the examination whether the noises were distracting to him and that he said "no." The comments of the other examiner confirmed what the undersigned witnessed on the video tape, i.e., that "he [Petitioner] did not appear to be visually upset during the examination." The examiners comments also noted that even with the distraction from the noise, Petitioner completed the physical diagnosis part of the exam with time remaining. Based upon the responses of the examiners, primarily the fact that Petitioner stated during the exam that the noises were not bothering him, Mr. Washington determined that no further action was warranted with respect to Petitioner's examination. He did notify the hotel staff about the distractions around the testing area. No other candidate or examiner expressed any concern to Mr. Washington regarding noise problems during the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order which denies Petitioner's application for a chiropractic license based upon the failing score that he received on the physical diagnosis part of the May 2001 licensure exam. DONE AND ENTERED this 15th day of March, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 March, 2002.
Findings Of Fact Petitioner, Sherman College of Straight Chiropractic, is a chiropractic college located in Spartanburg, South Carolina. It is accredited by the Southern Association of Colleges and Schools (SACS), a regional accreditation agency that is recognized by the U.S. Department of Education (USDOE) and the Council on Postsecondary Accreditation (COPA). Sherman College is also accredited by the Southern Conference of Straight Chiropractic Associations (SCASA), a professional accreditation agency which formerly was recognized by USDOE, but has never been recognized by COPA. Sheryll Indiaan is a graduate of Sherman College who applied for examination and licensure as a chiropractic physician under rule 21D- 11.001(2)(c), F.A.C. On April 7, 1992 the Board of Chiropractic (Respondent, or Board) issued an order of intent to deny the application. After denying Dr. Indiaan's request for formal administrative hearing and conducting an informal hearing on December 10, 1992, the Board issued its final order of denial on March 3, 1993. That order is on appeal to the First District Court of Appeal. The basis for the Board's denial of Dr. Indiaan's application as stated in its final order is: ...as a matter of law, Sherman did not meet the requirements of section 460.406(1)(c), F.S., because it had only regional or institutional accreditation by USDOE and COPA and it did not have professional or specialized accreditation by an agency recognized by USDOE and COPA. (Final Order entered March 3, 1993) Section 460.406(1)(c), F.S. was amended in 1990, as follows: 460.406 Licensure by examination.-- (1) Any person desiring to be licensed as a chiropractic physician shall apply to the department to take the licensure examination. * * * The department shall examine each applicant who the board certifies has: * * * (c) Submitted proof satisfactory to the department that he is a graduate of a chiropractic college accredited by, or has status with an agency or its successor which is recognized and approved by, the U.S. Office of education or and the Council on Postsecondary Accreditation or by the department, provided that the department applies the same standards used by the U.S. Office of Education which are applicable to this state when approving an agency. In evaluating any application for approval as an accrediting agency, the department shall give full recognition to the different philosophies of chiropractic prevailing in the profession and shall not reject any application solely because the accrediting agency is an adherent of one such philosophy as distinguished from another. No application for a license to practice chiropractic shall be denied solely because the applicant is a graduate of a chiropractic college that subscribes to one philosophy of chiropractic as distinguished from another. Any application for approval filed by any accrediting agency shall be acted upon by the department within 180 days of the filing of the application. The policy of the Board, as reflected in the Indiaan denial order, was first formulated and applied in 1991, after the Board was informed of the amendment to section 460.406, F.S. Six Sherman College graduates were told, the day before the March examination, that they would not be permitted to sit for the examination. After a follow-up emergency meeting, the Board voted to allow the students to take the examination, but that licensure would be withheld pending verification of Sherman College's accreditation. Prior to this action, Sherman College's graduates had been allowed to take the examination. On August 8, 1991, the Board considered argument and testimony and voted to adopt its policy of requiring both regional and professional accreditation. That policy is the basis for the rule amendments which are the subject of this proceeding. Rule 21D-11.001(2), F.A.C. provides requirements for application for licensure examination. The amendment, published on August 21, 1992, provides: 21D-11.001 Application for Licensure Examination. No change. No change. No change. No change. Are graduates of a chiropractic college accredited by, or has (sic) status with an agency, or its successor, which is recognized and approved by the United States Department of Education, and the Council on Postsecondary Accreditation or by the Department of Professional Regulation, provided that the Department of Professional Regulation applies the same standards used by the United States Department of Education which are applicable to the State of Florida when approving an agency. For the purpose of determining whether a chiropractic college is recognized and approved by the United States Department of Education and Council on Postsecondary Accreditation, the Board will require the applicant to show not only regional accreditation but also professional accreditation of the chiropractic college from which the applicant graduated. When no hearing was requested, the rule became effective. Notice of amendment to rule 21D-17.0045(1), F.A.C. was published on February 17, 1993. That rule addresses requirements for an individual to enter a chiropractic physician training program. The proposed amendment provides as follows: 21D-17.0045 Chiropractic Physician Candidate Training Program. (1) For the purpose of this rule, a "chiropractic physician candidate" is defined as an individual who has received his/her degree in chiropractic from a chiropractic college accredited by, or has status with which an agency or its successor which is recognized and approved by the U.S. Office of Education and the Council on Postsecondary Accreditation or by the department, provided that the department applies the same standards used by the U.S. Office of Accreditation which are applicable to this state when approving an agency. To demonstrate recognition and approval by the U.S. Office of Education and the Council on Postsecondary accreditation, a candidate must show that the chiropractic college from which the candidate received his/her degree, maintained both regional and professional accreditation. Sherman College has regional, but not professional accreditation, recognized by both USDOE and COPA. USDOE and COPA each recognize regional and professional accrediting agencies. Accreditation, both regional and professional, is a quality assurance process for educational institutions. While the focus of regional versus professional accreditation might be different, for a single purpose institution such as a Bible college, business school or chiropractic school, the difference is negligible. This testimony by Ralph G. Miller, executive vice president of the Council on Chiropractic Education (CCE), Respondent's expert on accreditation, is revealing: Q [by Ms. Daire] Is there a difference between regional or institutional accreditation from specialized or programmatic specialized accreditation? A [by Dr. Miller] You know, let me state a paradox in accreditation. The paradox is they are the same, but they are different. Q Will you please explain? A The form is the same, the process, and this is foisted by agreement of the associations upon the organizations and also by societal need as well as in these cases, U.S. DE and COPA. The differences come in the substantive aspects of what is required of the professional or programmatic areas versus the institutional or the regional. The institutional and regional are almost synonymous. In fact, they are. In some cases you'll have single-purpose institutions, such as Bible colleges, theology schools, some business, the association of private schools, business schools. These are single-purpose institutions not recognized by the regionals so they sort of dangle out there, and COPA has recognized them as a special unit, but U.S. DE does it a little differently. Q Okay. I don't know if you have answered my question, but is regional accreditation different from that of professional accreditation not with regard to process and procedure but with regard to the substance? A Yes, substance. Q The substance is different? A The substance is different? Q How is it different? A I think there is a societal aspect when one must consider when we review professional accreditation and that is, assurance of quality in the professional areas. The professional associations usually speak to this in a variety of ways, some call them functions; other call them standards; other call it essentials. The regionals have broadly stated standards which look at the institution as a whole to ascertain quality of academic ability, to assure that the institutions are doing what they are saying but not with the specificity as the professional association may, and I'm not saying that they are any less effective. Q Is there a need for both types of accreditation? A Yes, there is. Q What is the need that is met by institutional or regional accreditation? A It's assurance of the quality of education of our young people that go through the various disciplinary programs of history and sociology and possibly -- I can't think some of the sciences, chemistry, these various disciplines that need, society needs insurance. We don't have a governmental agency, if you would, such as the Ministry of Education that reviews these. So this has been a voluntary and very effective part of the post secondary accreditation over 100 to 125 years. * * * Q Is there a difference in site team visits professional and institutional, or are they the same? A In form they are the same, but in substance they can be very similar. Q Tell me about how they are the same in form. A They are the same in terms of the process, the kinds of -- the team effort, possibly the composite review of the standards and the process they have in ascertaining whether or not the institution is doing what it says it's doing. But the focus with the professional organizations comes in the area of the clinical component or that component dealing with the specific professional, profession need ahead. (transcript, pp 220-223) Louis W. Bender was qualified as an expert in accreditation matters on behalf of Petitioner. He is an accreditation consultant who has served on regional accreditation review teams and on a review team for SCASA, a professional accreditation agency. In his experience, the regional and professional agencies alike determine whether the programs being taught are preparing students for employment in their field. This includes review of all aspects of the educational program, from the course work to the clinical. A regional review team for a single purpose institution such as Sherman College would include individuals with knowledge of the curriculum in the chiropractic and the general education area. Members on the team would include individuals in the field being reviewed, like chiropractors. The SACS accreditation team that evaluated Sherman College included chiropractors and academicians from chiropractic colleges with professional accreditation. They evaluated the clinical program and curriculum leading up to the clinical program and commented on it in their review. The debate over relative merits of professional versus regional accreditation is mirrored in the debate over "straight" versus "mixer" philosophy of chiropractic. Simply described, the straight chiropractic professional concentrates on remedying subluxations (misalignments) of the spine as a means to good health. The "mixer" professional is involved in a wider range of health care services. Sherman College is a "straight" chiropractic institution, as reflected in its name, but it still recognizes that state licensing requirements throughout the country mandate the teaching of courses beyond straight practice; the college offers those courses to enable its students to pass state examinations and comply with state laws. Section 460.406(1)(c), F.S. expressly forbids the denial of an application for licensure or examination based on the preference of one philosophy over another. Petitioners contend that the rule amendments at issue violate that prohibition. The Council on Chiropractic Education (CCE) is the only chiropractic professional accrediting agency that is recognized by both USDOE and COPA. Thus, CCE accreditation is required for compliance with the rule amendments. Sherman College is not accredited by CCE but has applied for that accreditation. CCE does accredit programs that ascribe to the straight philosophy and has rejected accreditation to mixer institutions. Petitioners' claim of discrimination is not substantiated. Sherman College's claim that it is substantially affected by the rule amendments is supported by the weight of evidence. Before the Board voted to discontinue allowing Sherman college graduates to take the licensure examination the college had approximately 20 students from Florida enrolled. That enrollment has dropped now to a single student out of a total of approximately 132 students. There are approximately 83 alumni of Sherman College practicing in Florida who could otherwise refer students to the college. An institution whose students are barred from practice in a state loses reputation and suffers economic loss, not just in lost tuition and fees but also through loss of donations from alumni. Sherman College receives an average of $400 per year per graduate donations. Dr. Thomas Gelardi, the president and founder of Sherman College reasonably estimates that it loses several thousand dollars a month, primarily because of the rules' impact on its enrollment.
The Issue The issue is whether Dr. Schlein was properly graded on the November 1986 practical examination for chiropractic. Preliminary matters At the opening of the hearing, the petitioner, Dr. Stuart Schlein, inquired whether a former member of the Florida Board of Chiropractic Examiners, Dr. Posner, could represent him in this proceeding. After inquiring about Dr. Posner's credentials, Dr. Posner was not accepted as a qualified representative, but Dr. Schlein was permitted to consult with Dr. Posner throughout the proceeding to assist in the presentation of Dr. Schlein's evidence. At the hearing, David Paulson, Ph.D., and Robert Samuel Butler, Jr., D.C., testified on behalf of both parties. Petitioner introduced exhibits 1-14, and respondent introduced exhibits 1 and 2.
Findings Of Fact Stuart Schlein, the petitioner, was a candidate during the November 1986 chiropractic examination. He was exempt from Part I (Basic Sciences Examination) and Part II (Clinical Sciences Examination) because he had already passed the National Board of Chiropractic Examiners' examination. The practical examination consists of three portions, one on x-ray interpretation, one on chiropractic technique, and one on physical diagnosis. There was no dispute with respect to the scoring of Dr. Schlein on the x-ray interpretation portion of the exam, on which he received a grade of 74.2 percent. Dr. Schlein's grade on technique was 75.0 and on physical diagnosis was 72.5, for an overall score on the three portions of practical examination of 73.9 percent. Dr. Schlein would have been eligible for registration for licensure as a chiropractor if his overall grade was 75 percent or better on the practical examination. Rule 21D- 11.003(4), (5), Florida Administrative Code. To conduct the technique and physical diagnosis portions of the practical examination, the Department of Professional Regulation hires examiners who have five or more years experience as licensed chiropractors in Florida who have not been disciplined or investigated by the Board. Rule 21D- 11.007(1), Florida Administrative Code. Pairs of examiners question each candidate. There is a standardization training session for examiners which lasts 2-3 hours the morning of the examination. During that training, the examiners learn the scoring scale to be used; candidates are scored on a scale from 1-4, with scores of four being the maximum. Examiners are told to independently evaluate the candidate's performance and are told how to record their answers on a sheet which can be scanned by computer, and are told the different content areas from which they may ask questions of candidates. For example, in the technique examination, there are four sub-areas to be covered, cervical, thoracic, occipital, and soft tissue. The examiner, individually, determines what he wishes to ask candidates from those subject areas. Both examiners' scores on each test are averaged to produce a candidate's final score for each test. The examiners change partners from the morning to afternoon examination sessions. For approximately 30 minutes before the morning or afternoon sessions, the examiners paired for that session may discuss with each other the questions which they intend to ask. To use a legal analogy, this method of testing candidate's practical knowledge is not much different than placing two examining lawyers in a room to question and evaluate a bar applicant, after merely instructing the lawyers to "ask something about evidence, about constitutional law, and about criminal law." (Transcript 137). There is no assurance that the questions posed by the examiners are at a proper level of difficulty to assess minimum qualifications for practice. There is no requirement that a given pair of examiners ask the same questions of their examinees during a morning or afternoon examination session. There is no assurance that the other examiner in the room even knows the answer to a question posed, yet both examiners are required to assign a grade for the candidate's performance on each sub-area. The Department makes a tape recording of the examination of each candidate for review. Dr. Schlein's grades on the technique and diagnosis portions of the practical examination were as follows: TECHNIQUE Examiner I Examiner 4 1. Cervical 3 4 2. Thoracic 3 3 3. Occipital 4 3 4. Soft Tissue 2 2 12 12 16 16 = 75 percent = 75 percent Average score 75 percent DIAGNOSIS Examiner 1 Examiner 4 Case History 3 3 Chiro. Exam. 2 2 Orthopedic 4 4 Neurological 4 3 Laboratory Diagnosis 3 2 Nutrition 2 [examiner failed to assign a grade] 18 14 24 20 = 75 percent = 70 percent Average score 72.5 percent Technique 75 percent Diagnosis 72.5 percent X-Ray 74.2 percent Final Average 73.9 percent Dr. Schlein objects to the grades he received for cervical and occipital on the technique exam and for neurological and nutrition in the diagnosis exam. With respect to the grade for nutrition, the Department of Professional Regulation could not explain why Examiner 4 failed to assign any grade for the candidate's answer with respect to the questions he was asked on nutrition. Dr. Schlein attempted to impeach the explanation given by Examiner 1, Dr. Butler, for the grades assigned on the four portions of the examination Dr. Schlein challenged by introducing portions of text books used in chiropractic schools which tend to support Dr. Schlein's oral answers. While the matter is not free from doubt, Dr. Schlein's text book excerpts have not convinced the Hearing Officer that the grades given are erroneous. Dr. Schlein was not properly graded, however, with respect to the area of nutrition since examiner 4 (who was not called as a witness) failed to assign any grade and the reason for his failure to do so was unexplained.
Recommendation It is RECOMMENDED that Dr. Schlein be granted the opportunity to be reexamined on the practical portion of the chiropractic examination, at no cost to him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June, 1988. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX The following are my rulings on the proposed findings of fact proposed by the petitioner. Rejected as introduction. Covered in paragraph 1. Covered in paragraph 2. Covered in paragraph 5. Covered in paragraph 6. Covered in paragraphs 1 and 5. Rejected because it is not possible to tell what the effect of the failure of Examiner 4 to give a grade on nutrition was, other than to draw the conclusion expressed in paragraph 5 of the Conclusions of Law that the examiner did not completely understand the grading instructions. Rejected for the reasons stated in paragraph 8. The finding that the testimony establishes there is no uniform method for grading examinees is implicitly accepted in paragraph 3, the remainder of the paragraph is rejected as argument. The following are my rulings of findings of fact proposed by the respondent. The Department filed no proposed recommended order. COPIES FURNISHED: WILLIAM O'NEIL, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 STUART SCHLEIN, D. C. 1035 FRANKLING ROAD APARTMENT N-208 MARIETTA, GEORGIA 30667 PAT GUILFORD, EXECUTIVE DIRECTOR BOARD OF CHIROPRACTIC DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The issue in this case is whether Florida Administrative Code Rule Subsections 64B2-15.001(2)(e), (i), and (l) constitute an invalid exercise of delegated legislative authority in that they exceed Respondent's rulemaking authority or enlarge, modify, or contravene the law the Rule implements.
Findings Of Fact Petitioner Michael John Badanek, D.C., is a duly licensed chiropractic physician in the State of Florida. Dr. Badanek actively practices in Ocala, Florida. Dr. Badanek has engaged in and is engaging in, the advertising of professional services to the public. Dr. Badanek is subject to the provisions of Chapter 460, Florida Statutes, and the rules promulgated by Respondent. Dr. Badanek's failure to adhere to the provisions of Chapter 460, Florida Statutes, and the rules promulgated thereunder, including the Challenged Rule Subsections, may result in the discipline of his professional license. Dr. Badanek has standing to challenge the Challenged Rule Subsections. The affected state agency is the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), located at 4052 Bald Cypress Way, Tallahassee, Florida. The Board is charged by Chapter 460, Florida Statutes, with the duty of regulating the chiropractic profession in Florida. In carrying out that duty, the Board has adopted Florida Administrative Code Rule Chapter 64B2. At issue in this matter is the Challenged Rule Subsections of Florida Administrative Code Rule 64B2-15.001. The Challenged Rule Subsections provide the following: 64B2-15.001 Deceptive and MisleadingAdvertising Prohibited; Policy; Definition. . . . . (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it: . . . . (e) Coveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, posses qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialties recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each specialty requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that "The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine." A chiropractor may use on letterhead or in advertising a reference to any honorary title or degree only if the letterhead or advertising also contains in the same print size or volume the statement "Honorary" or (Hon.) next to the title. . . . . (i) Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board, or . . . . (l) Contains a reference to any other degree or uses the initials "M.D." or "D.O." or any other initials unless the chiropractic physician has actually received such a degree and is a licensed holder of such degree in the State of Florida. If the chiropractic physician licensee is not licensed to practice in any other health care profession in Florida, the chiropractic physician must disclose this fact, and the letterhead, business card, or other advertisement shall also include next to the reference or initials a statement such as "Not licensed as a medical doctor in the State of Florida" or "Licensed to practice chiropractic medicine only" in the same print size or volume. . . . . The authority cited by the Board as its "grant of rulemaking authority" for the Challenged Rule Subsections is Section 460.405, Florida Statutes, which provides: Authority to make rules.--The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. The Board has cited Sections 456.062 and 460.413(1)(d), Florida Statutes, as the "law implemented" by the Challenged Rule Subsections. Section 456.062, Florida Statutes, provides: Advertisement by a health care practitioner of free or discounted services; required statement.--In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place. Section 460.413(1)(d), Florida Statutes, provides the following ground for disciplinary action: "False, deceptive, or misleading advertising." While neither this provision nor any other specific provision of Chapter 460, Florida Statutes, imposes a specific duty upon the Board to define what constitutes "false, deceptive, or misleading advertising," the Board is necessarily charged with the duty to apply such a definition in order to carry out its responsibility to discipline licensed chiropractors for employing "false, deceptive, or misleading advertising."
Findings Of Fact The Petitioner took the chiropractic licensure practical examination administered in November of 1989 and received a score of 71.2%. The minimum passing score was 75%. The Petitioner needs 1.5 additional raw score points in order to obtain a minimal passing grade. The Petitioner challenged portions of the practical portion of the chiropractic examination. The practical examination includes the areas of x-ray technique, chiropractic technique, and physical diagnosis. Stephen Ordet, D.C., testified on behalf of the Respondent. He was received as an expert in chiropractic medicine (TR, page 117, line 19). He testified that he has been an examiner for the Florida chiropractic practical examination since approximately 1980 (TR, page 102, line 18). The practical portion of the chiropractic examination was administered to the Petitioner by two of several doctors of chiropractic, who were examiners at this examination. The practical examination questions asked the Petitioner were developed by the two examining doctors. The various areas which can be included on the technique examination include cervical, lumbar, thoracic, occipital, pelvic, rib, soft tissue, and extremities. The examiners' questions to the Petitioner did not address the lumbar, occipital or rib areas. Examiner No. 12 gave the Petitioner a score of 4 on cervical, 3 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 1 on extremities. Examiner No. 13 gave the Petitioner a score of 4 on cervical, 3.5 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 2 on extremities. Each portion of the examination has a possibility of 4 points. A candidate must average 3 points fob each question on the examination or a score of 75%. The school which the Petitioner attended is an accredited school. The Petitioner's responses to various questions from the examiners were scored by the examiners under more than one phase of the examination. The Petitioner received a grade of 4 (excellent) from both examiners on the cervical portion of the examination. The Petitioner's expert witness testified that the Petitioner's responses to the questions on the pelvic and thoracic were complete answers. The grades given the Petitioner by one of the examiners were 3.5 and 3, and the grades given by the other examiner were 3 and 3. The grades given are consistent with the petitioner's expert's characterization of her performance. There is no evidence that these questions or grading were arbitrary or capricious. The Petitioner was given an extremities question, and she began an examination of the patient. Thereafter, she advised the examiners that her school had not taught adjustment of the extremities and had not known she would be examined in this area. Additional evidence presented at the bearing shows that extremities were not taught at the Petitioner's school when she attended based upon the school's philosophy relating to spinal adjustment. The two remaining areas addressed in the practical portion of the examination were soft tissue and extremities. Grader 13 scored the Petitioner 2.5 on soft tissue and 2 on extremities. Grader 12 scored the Petitioner 2.5 on soft tissue and 1 on extremities. Dr. Ordet opined that extremity technique as a necessary part of chiropractic medicine (TR, page 100, line 11). He referred to several technique books in chiropractic to support the necessity of extremity technique. The text books included Anatomical Adjustment Techniques by Dr. Homer Beatty. One of the examiners responded that they would move onto another area and gave her a new question referring back to the patient with torticollis. The responses by the Petitioner regarding manipulative relief of the torticollis were not addressed by the Petitioner's witness. There is no basis for concluding that the examiners were clearly erroneous in their evaluation of the Petitioner's response. The Respondent's expert witness revealed that the examination did not place special emphasis on the technique taught at the candidate's particular college.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the extremities question be stricken from the techniques attempted; the Petitioner receive the average of her remaining techniques scores; and receive a passing score on the examination. DONE AND ENTERED this 15th day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3398 Petitioner's Proposed Findings of Fact Adopted and renumbered. Adopted and renumbered. Rejected. The state of the Petitioner's health when this examination was given is conjectural. The Petitioner was given added credit upon a review of her examination; however, one cannot say the examiners were unfair. The testimony about the amount of time for each examination is conflicting. The Petitioner did not clearly establish this point. True but irrelevant. Contrary to the facts. Contrary to the facts. True but irrelevant. Respondent's Proposed Findings of Fact Adopted and rewritten. Not a finding. Not a finding. Adopted and rewritten. Adopted. Adopted in part, rewritten in part, and rejected in part. Adopted first sentence. Adopted. Adopted. COPIES FURNISHED: Ms. Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois Buxbaum 23 Jones Street, #19 New York, NY Vytas J. Urba, Esq. Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 =================================================================
