The Issue The issue for determination in this proceeding is whether Respondent violated Chapter 463, Florida Statutes, by committing the acts alleged in the administrative complaint and, if so, what disciplinary action, if any, should be taken against Respondent's license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed optometrist in the state, holding license number OP 1513. Background Respondent performed optometry examinations on patient S.R. on September 12, 1988, and on September 22, 1988. The examinations were performed at Linsey Eyecare, 2021 Palm Beach Lakes Boulevard, West Palm Beach, Florida. Respondent is a subcontractor for Dr. Steven Venokour who manages Linsey Eyecare. Linsey Eyecare advertises that it is a ". . . department store that . . . " fills ". . . 90% of most prescriptions . . . in about one hour. . ." and offers ". . . a complete and comprehensive visual diagnosis . . ." in which ". . . your eyes are screened for glaucoma." S.R. went to Linsey Eyecare because she saw its advertisement in the local newspaper. Respondent knew that S.R. had a family history of glaucoma. S.R. informed Respondent when she gave her ocular history to Respondent at the outset of her eye examination on September 12, 1988, that her father had lost his eyesight due to glaucoma. A patient with a family history of glaucoma may be at a greater risk of having glaucoma than a patient without such a history if the family history of glaucoma is hereditary rather than the result of an accident or disease. Respondent knew that his assistant had not performed a non-contact tonometer on S.R. Respondent did not perform a non-contact tonometry test (a "tonometry test") on S.R. during eye examination given to S.R. on September 12, 1988. A tonometry test is one of the tests used to screen for glaucoma. It is used to take a pressure reading using a machine that blows a puff of air in the patient's eye. The puff of air creates a startling sensation in the patient's eye that the patient does not easily forget. The machine used to give the tonometry in Linsey Eyecare was malfunctioning on September 12, 1988, and that particular test was not given to S.R. However, S.R. was given additional tests for glaucoma. S.R. discovered through conversations with a third party that a tonometry test is one of the tests customarily used to screen for glaucoma. S.R. recalled that she had not received a test using a puff of air in her eye. S.R. called Linsey Eyecare and scheduled another eye examination for September 22, 1988. A tonometry test was given to S.R. during her second eye examination on September 22, 1988. 3/ Negligence The minimum standard of medical care requires that a patient with a family history of glaucoma receive a complete glaucoma screening. The examination of such a patient should be more extensive than the examination given to a patient without a family history of glaucoma. A patient with a family history of glaucoma, at a minimum, should receive a tonometry test. If a tonometry test cannot be performed, intraocular pressure should be measured using the Goldman applanation tonometry. 4/ Irrespective of the method used to measure intraocular pressure, the cup to disc ratio should be measured to determine if cupping has occurred. Cupping is another clinical sign that increases the risk of glaucoma. The anterior angle should also be examined under a biomicroscope to determine if the angle is opened or closed. If a narrow angle is detected, fluid may not be draining properly and a gonioscopy should be performed to more accurately determine if the anterior angle is opened or closed. If all of the findings from the foregoing tests are positive, the patient should be given a visual field evaluation. Respondent failed to conform to the minimum standard of care when he did not measure S.R.'s intraocular pressure by either a non-contact tonometry or an applanation tonometry during his patient's initial visit to Linsey Eyecare. Some type of tonometry test is the minimum requirement for glaucoma screening. For a patient with a family history of glaucoma, it is essential that the tonometry test be performed during the initial examination and not during a follow-up examination. Respondent did not dilate S.R.'s eyes for further examination during her initial visit because S.R. had no other person available to drive her home. Respondent dismissed S.R. without performing any tonometry test, knowing that his patient had a family history of glaucoma. Respondent did not reschedule S.R. for a follow-up examination nor advise S.R. to arrange such an examination with Respondent's office or any other optometrist. The patient returned to Linsey Eyecare for a follow-up examination at her own insistence and not at the direction of Respondent. Respondent conformed to the minimum standard of care for S.R. during her follow-up examination on September 22, 1988. Respondent performed both a non-contact tonometry and an applanation tonometry. Respondent measured the cup to disc ratio, the depth and angle of the anterior chamber, and performed a visual field screening using confrontation fields. All of the test results were within normal ranges. Based upon the absence of positive findings, a gonioscopy was not appropriate and was not done. The only act of negligence committed by Respondent was the failure to perform some type of tonometry during S.R.'s initial eye examination on September 12, 1988. Medical Records Respondent failed to keep adequate written optometric records (the "records") for the initial eye examination given to S.R. on September 12, 1988. Respondent failed to document the reasons for omitting a tonometry from S.R.'s eye examination. In all other respects, the records maintained for the initial eye examination were adequate. The only notation in the family history is glaucoma. While the family history documented in the records was incomplete, the patient was unresponsive or uncooperative in providing such information. The reason for the incomplete family history was sufficiently documented with the notation "N". 5/ Respondent kept adequate records for the second eye examination given to S.R. on September 22, 1988. The notations in the records were difficult to read and the copies used by Petitioner's expert witness were of poor quality. Upon cross examination by Respondent, however, it was uncontroverted that proper and adequate records were maintained by Respondent for S.R.'s second eye examination. The records of the second examination reveal that the cup to disc ratio was sufficiently documented by the notations "CD" for clear and distinct and ".3N" in both eyes. Color of the optic nerve head was adequately described by the notation "WNL". The depth and angle of the anterior chamber was adequately documented by the notation of "3/3+" (three over three plus). The confrontation fields were adequately documented by the notation of "full OU". Adequate records were maintained by Respondent even though they contained sloppy penmanship and the copies reviewed by Petitioner's expert were poor in quality. Advertisement Respondent did not advertise goods or services in a manner that was fraudulent, false, deceptive, or misleading in form and content ("misleading"). The advertisement in question was not misleading. Even if it was misleading, the advertisement was placed by Linsey Eyecare under the direction of Dr. Venokour. Respondent was a subcontractor for Linsey Eyecare and had no control over the placement and content of advertising for that entity. 6/ Repeated Violations Respondent is guilty of repeated violations of applicable provisions of Florida law. In a Final Order entered on November 10, 1982, pursuant to Section 120.57(2), Florida Statutes, Respondent was found guilty of having failed to remove all of the metal fragments found in a patient's eye during repeated attempts at removal on December 24, 25, and 28, 1981, in violation of Section 463.016(1)(g). Respondent was fined $500 and placed on probation for one year.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that Petitioner should enter a Final Order finding Respondent guilty of failing to provide a tonometry during the patient's initial presentation and failing to document the patient's records as the omission and the reason for such an omission in violation of Sections 463.016(1)(g) and 463.016(1)(k), Florida Statutes. It is further recommended that the Final Order should impose an administrative fine in the aggregate amount of $4,000 and place Respondent on probation for one year subject to reasonable terms of probation to be determined by Petitioner. RECOMMENDED this 24th day of September 1991, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 24th day of September, 1991.
The Issue This cause arose as an action pursuant to Section 120.56(2), Florida Statutes, challenging the validity of the amendment to Rule 59U-16.002(2), Florida Administrative Code, proposed and published by the Board of Opticianry on February 14, 1997. The issues are: Do Petitioners have standing to bring this rule challenge? Is the following proposed amendment of Rule 59U- 16.002(2), Florida Administrative Code, an invalid exercise of delegated legislative authority, pursuant to Sections 120.52(8)(c) and (8)(e), Florida Statutes? A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. (Amended language underlined) Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?
Findings Of Fact All persons seeking to be licensed as opticians in Florida must first pass a minimal qualifications licensure examination. Before being qualified to sit for this examination, one of the following courses of preparation provided in Section 484.007, Florida Statutes, must be met. In relevant part, this section provides that one must have (1) received an associate degree, or its equivalent, in Opticianry from an accredited educational institution; (2) be an individual who is licensed to practice the profession of Opticianry in another state, territory, or jurisdiction, who has actively practiced for more than three years; or (3) come from a state or jurisdiction which is not licensed and have actively practiced in that state, territory, or jurisdiction for more than five years immediately preceding application; or (4) be an individual who has completed an apprentice program consisting of 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the law of this state. Respondent Board of Opticianry published on February 14, 1997 a proposed change to Rule 59U-16.002(2), Florida Administrative Code, as set out below. The underlined language is the only substantive change: 59U-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: No change. A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. Specific Authority - 484.005 F.S. Law Implemented - 484.007(1)(d)4. F.S. The parties' Amended Prehearing Stipulation agreed that, Petitioners did not request a public hearing pursuant to the Florida Administrative Weekly notice. A Notice of Additional Public Hearing scheduled for May 16, 1997, was published on April 18, 1997, Volume 23, No. 16, Florida Administrative Weekly. At that hearing, the Board of Opticianry discussed and approved an amendment to proposed amendment to Rule 59U- 16.002. At formal hearing, counsel for the Board represented that the Board had voted to amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out of state prior to passing the Florida Opticianry licensure examination from acting as sponsors of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until a Final Order is entered on the instant challenge. The Board's position was that this vote did not constitute a stipulation of invalidity, arbitrariness, capriciousness, or overreaching its statutory authority. According to the Board, this representation was made only because the Board would not be putting on evidence to support certain portions of the rule language, as published. Nonetheless, Sam Jones, licensed optician and Board member, testified, on behalf of the Board, that new Florida licensees from out of state could not properly sponsor apprentices for at least one year because they "need a little more exposure" to Florida laws and rules before teaching others and because some other states have no licensure criteria at all and no continuing education requirements. The Petition challenges the ability of the Board to require that opticians be licensed for at least one year prior to serving as apprentice sponsors, alleging that the Board lacks statutory authority to promulgate such a rule and that the proposed change is arbitrary and capricious and not based on appropriate factual or legal justification. Petitioner Lenscrafters, Inc. is a corporation that does business in the State of Florida, offering optical services and goods to the public. Lenscrafters hires employees to work as opticians, as well as hiring other unlicensed store employees. Petitioner Sanjiv Matta is Lenscrafters' Regional Trainer of Operations and apparently Lenscrafters' primary Florida employment recruiter. He also locates coaches for Lenscrafters' training programs. He has been a licensed optician in Florida for more than one year. He does not currently sponsor an apprentice. Lenscrafters and Mr. Matta allege that they will be substantially affected because the proposed rule amendment will reduce the number of available sponsors, which will in turn reduce the number of apprentices, which will in turn reduce the number of available employees now and the number of available licensed opticians in the future. As a subset of this alleged chain of unavailability of sponsors, apprentices, and employees generally, Petitioners claim great difficulty will arise in attempting to coordinate apprentice work hours with sponsor work hours. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores. Approximately 25 of the 200 opticians employed by Lenscrafters in Florida have been licensed for less than one year. These 25 were among the 60 new employees hired by Lenscrafters last year. Some of the licensed opticians Lenscrafters hires unilaterally elect to serve as sponsors to other employees who would like to obtain their opticianry license by completing an apprenticeship program. However, according to Mr. Matta, it would not be "integrity based" for Lenscrafters to urge or encourage optician employees to take on sponsorship. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ. Although Lenscrafters provides programs to help all its employees, including apprentices, achieve expertise in fitting and adjusting eyeglasses and provides situational training, equipment training, training tests, performance tests, and lending libraries, it has no specific apprenticeship program, as such, in place. Some of Lenscrafters' programs assist apprentices in attaining credit hours towards licensure. Some supplement the apprentice program requirements. The primary purpose of Lenscrafters' programs is to educate and train its employees for servicing its customers. The ultimate testimony of Mr. Matta that there currently are three opticians employed by Lenscrafters who have been licensed in Florida for less than one year and who are also currently serving as sponsors was anecdotal at best and at worst was speculative and self-contradictory of prior testimony. Lenscrafters currently has 66 apprentices in its employ in Florida. Pursuant to Board rules, each sponsor may oversee two apprentices and any apprentice may have both a primary and a secondary sponsor. Credit hours in the apprentice program are only earned when the apprentice works under a sponsor's supervision. Board rules would permit Lenscrafters' 200 opticians to sponsor 400 apprentices if each licensee had two apprentices. The proposed change in the rule would allow 175 Lenscrafters' opticians to sponsor 350 apprentices. Simple mathematics shows that Lenscrafters has between 33 and 66 optician employees who serve as apprentice sponsors, primary or secondary. Clearly, Lenscrafters currently employs many more non-sponsors than sponsors. Section 484.011, Florida Statutes, allows any employee of an optician to perform any of the functions an optician performs, as long as the acts are performed under the direct supervision of the optician. Lenscrafters allows apprentices to perform more tasks than other unlicensed employees. Lenscrafters considers apprentices to have greater expertise, employee commitment, and career commitment than other unlicensed employees. Lenscrafters pays apprentices more than other unlicensed employees. Lenscrafters and Mr. Matta believe that apprentices who have worked in Lenscrafters' stores and trained on Lenscrafters' equipment will eventually provide a pool of trained opticians for hire or promotion. However, Lenscrafters submitted no statistical data to confirm this "belief" expressed by Mr. Matta, and based on the ratio of available sponsors to apprentices which was developed at formal hearing, this "belief" constitutes pure speculation. It could be just as beneficial for Lenscrafters to train non-apprentices at a lower salary. Intervenor Odette Gayoso has been involved in opticianry for 15 years. She has an Associate of Arts (AA) degree in Optical Science and has been licensed as an optician in Puerto Rico since 1991. Ms. Gayoso is employed as an optician by Lenscrafters. She has been a licensed optician in Florida since December 1996. Therefore, at the time of formal hearing, she had been Florida- licensed for less than one year. Under the proposed rule amendment, she would be unable to act as a sponsor for five more months. Ms. Gayoso does not sponsor an apprentice currently, although the current rule permits her to do so. She has never applied to be a sponsor. No apprentice currently wants her as a sponsor. In the past, two Lenscrafters employees needed sponsors, but both left Lenscrafters' employ before any agreements concerning sponsorship were reached. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing. Mr. Matta and Ms. Gayoso testified that they recruit for Lenscrafters. Ms. Gayoso is an assistant retail manager in a single store. Mr. Matta recruits state-wide. Only Mr. Matta testified that, in his experience, there is a shortage of qualified opticians available to be hired. Only Mr. Matta testified that due to the Board's rule requirement of direct supervision it was difficult for him to match apprentices' work hours with those of their sponsors. Ms. Gayoso did not corroborate Mr. Matta's perception that it is difficult to match apprentices' work hours with those of their sponsors. Although she could see how that could be, it apparently was not a problem in her store where the optician/manager sponsored two apprentices and where another optician who had been employed less than 90 days was prohibited by Lenscrafters from acting as a sponsor. The fact that Lenscrafters prohibits some of its licensed opticians from sponsoring apprentices undermines Lenscrafters' position that the proposed rule change alone would undermine apprentices locating willing sponsors. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment. The Board office receives approximately 86 calls about the apprenticeship program each month. The Board has never received a call concerning a prospective apprentice's inability to find a sponsor. There are currently approximately 2,500 actively licensed opticians in Florida. Of these 2,500 licensees, 174 were licensed last year. This number of annual new licensees has stayed relatively stable for many years. Of 544 current apprentices in Florida, only 27 currently have sponsors of less than one year licensure. The statistics show that many more potential sponsors are available both state-wide and within Lenscrafters' Florida operation than there are those who want to be apprentices. Under the current rule, only those licensees who are currently under disciplinary action are precluded from being sponsors. Under the proposed rule, and excluding any disciplinary concerns, only the 174 new admittees could not be sponsors for one year. A year later, those 174 could become sponsors. So in effect, the only licensees who could not be sponsors each year are the newest licensees, while each year the total number of potential sponsors grows respectively. Of course, the number of eligible physicians and optometrists who could also serve as sponsors would not fall below the current number and would continue to grow respectively year by year. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year. Approximately half of the successful opticianry licensure examinees come from the AA program, and half come from the apprentice program. There is a 90 percent first time pass rate on the examination. The number of apprentice program examinees who fail on both the initial examination and "retake" examinations is higher than for AA degree holders. Since 1991, the Board has been concerned that the apprenticeship route has not been adequately educating future opticians and ensuring the safety of their public practice after licensure even if they were being adequately prepared to pass the standardized minimal qualifications examination. The Board consulted no empirical data for formulating its rule as published, but it held between nine and 12 Board meetings which included discussions on upgrading the apprenticeship program. Board members reported information from nationally recognized professional associations and reviewed a national trend whereby more states are requiring licensure and more states are phasing out apprenticeship programs. Some Board members took the minimum qualifications licensure examination so that they could understand what was involved and how the examination could be improved and report back to the Board. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted. These Board meetings were open to the public and solicited public input. Some were referred to as "workshops," although they might not meet the generally understood Chapter 120, Florida Statutes, definition of "workshop." In 1996, a bill to amend Chapter 484, Florida Statutes, so as to require optician licensees to have three years of licensure before becoming sponsors did not pass into law. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination. Sam Jones was one of the Board members who retook and passed the current licensure examination. On behalf of the Board, he stated that the teaching of how to pass the licensure examination did not equate with teaching the practice of opticianry. In drafting the rule challenged herein to apply to all new optician licensees regardless of which of the four alternative routes they had taken to licensure, the Board viewed the new one-year requirement as constituting an internship akin to the internship required of other health care professionals. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor. In not applying the one-year requirement to physicians and optometrists, but only to opticians, the Board considered that licensed physicians and optometrists already had clinical experience in excess of licensed opticians. The parties stipulated that the Board is authorized to make such rules as are necessary to protect the health, safety, and welfare of the public as it relates to the practice of opticianry and is authorized, "to establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the Board."
The Issue The issue in this case is whether Petitioner is entitled to receive a passing grade on her optometry examination.
Findings Of Fact Petitioner took the optometry licensure examination on September 22-24, 1991. Following review of her initial scores, Respondent informed her by notice dated February 22, 1991, that she earned 100 points on Florida law and rules, which was a passing grade; 52.5 points on pharmacology and ocular diseases, which was below the minimum passing grade of 70; and 77 points on clinical, which was below the minimum passing grade of 80. Petitioner challenged her grades on the pharmacology and ocular diseases and clinical portions of the examination. However, at the beginning of the hearing, shedropped her challenge to the pharmacology and ocular diseases portion of the examination. The clinical portion of the examination is divided into two sections. In the first section, the applicant sees a "patient." Two examiners watch and listen as the applicant examines the "patient," who is unknown to the applicant and has been prepared with certain information. The applicant is graded under various areas within the broad categories of case history, visual acuity, pupillary exam, confrontation visual fields, and extra-ocular muscle balance assessment. In the second section, the applicant brings with him to the test site his own "patient." Two examiners, who are different from the examiners for section one, evaluate the applicant's ability to use various types of clinical equipment on his "patient." In the first section, Petitioner challenged the grades that she received for Questions 6, 8-10, and 11, which are all worth two points except for Question 10. Question 10 is worth four points. In the second section, Petitioner challenged the grades that she received for Questions 1-4, which are all worth five points, except for Question 4. Question 4 is worth four points. Any combination of additional points adding up to two or more would give Petitioner a passing grade on the pharmacology and ocular disease portion of the examination. As noted below, Petitioner received partial credit for certainanswers. Each of the four examiners completed a scoresheet while grading Petitioner. When no or partial credit was awarded, the examiner would write comments explaining what the problem was. Testifying for Respondent at the hearing, a licensed optometrist, who was one of the examiners of Petitioner for section two, explained adequately each of the scores awarded Petitioner for each of the challenged questions. He established that the equipment was carefully calibrated prior to each test session and for each individual applicant. A psychometrician employed by Respondent also testified that she had analyzed the variance of the scores among the examiners, in terms of overall scores for all applicants, and found no variances tending to discredit the grades. The challenged questions and clinical procedures provided a reliable measure of an applicant's relevant ability, knowledge, and skill. Petitioner's grades were a fair evaluation of her performance on the challenged questions.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Optometry enter a final order dismissing Petitioner's challenge to her scores in pharmacology and ocular diseases and clinical portions of the September, 1990, optometry licensure examination. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of June, 1991. COPIES FURNISHED: Jack McCray, 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 Chidiebere Ekenna-Kalu P.O. Box 621507 Orlando, FL 32862-1507 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792
The Issue The issue is whether the Respondent is subject to discipline for engaging in practice beyond the scope of opticianry.
Findings Of Fact At all times material to this action, Dory Gomez-De Rosas has been a licensed optician in the State of Florida, holding License DO 0001724. She was an owner of and employed as a licensed optician at Care Optics, located at 1057 North Homestead Boulevard, Homestead, Florida. On May 16, 1989, Patient #1 went to Care Optics to have her eyes examined after having made an appointment about a week earlier. A complete eye examination was performed on Patient #1 by the only woman who was present in the office. That examination included a glaucoma test. Patient #1 intended to buy her glasses elsewhere. She paid $30 for the examination. Patient #1 received a business card from the woman who performed her eye examination which contained measurements. Those measurements were findings of the refractive indices for Patient #1, which would be used in making eye glasses. The information provided on the back of the card, however, was incomplete. The information was not written on a prescription form, as would an ordinary prescription nor was it signed by anyone. A prescription must be signed by an optometrist or opthalmologist. Patient #1 took the card to her regular optician, Mr. Stellabotte. Because he could not prepare glasses from the information on the back of the card, he attempted to contact the opthalmologist or optometrist who seemingly had prescibed the lenses for Patient #1 at Care Optics. There was no opthalmologist or optometrist at Care Optics when Mr. Stellabotte called. The Department delivered a subpoena duces tecum to Care Optics to obtain the records of Patient #1, but Care Optics was unable to locate any records for Patient #1, and provided an affidavit to that effect. Patient #1 returned to Care Optics and received a refund of the $30 she had paid. She then was examined by another optometrist in Homestead and had the prescription filled by Mr. Stellabotte. Patient #1 identified the Respondent as the woman who performed the total eye examination and glaucoma test on her at Care Optic after seeing a photocopy of the examination photograph which Respondent had provided to the Board as part of her licensure application as an optician. After viewing the Respondent at the hearing, it is obvious that the licensure photograph which Patient #1 identified is a photograph of the Respondent. The Respondent engaged in the diagnosis of the human eyes by performing a glaucoma test on Patient #1, and by determining the refractive power for Patient #1's eyes during the examination which the Respondent performed at the office of Care Optics on May 16, 1989. She also was guilty of deceit by leading Patient #1 to believe that she was an optometrist who was competent to examine her eyes. The Respondent attempted to prescribe lenses for Patient #1 by providing the Respondent with a business card which contained on its back her findings of refractive powers for correction of Patient #1's eyes. This is not an ordinary way to provide a prescription for lenses.
Recommendation It is recommended that a Final Order be entered by the Board finding the Respondent guilty of the violation of Sections 484.013(3), Florida Statutes, and 484.014(1)(f) and (m), Florida Statutes, that a fine of $1,750.00 should be imposed; that the Respondent should be suspended from the practice of opticianry for a period of 90 days, and should be placed on probation for a period of one year. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of January, 1991. WILLIAM R. DORSEY, JR. 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 16th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4970 Rulings on findings proposed by the Department: All findings by the Department have been adopted, although they have been edited in the findings of fact made here. Rulings on findings proposed by the Respondent: 1 and 2. Adopted in Finding 1. Rejected. The photograph was sufficiently identified as that of the Respondent, and could be readily determined to be a photograph of the Respondent after seeing the Respondent at the hearing. See, Finding 6. Rejected as unnecessary. The identification by Patient #1 of the Respondent was sufficient. The photocopy of the photograph in the Department's files was sufficient for use by the patient in identifying the Respondent. Rejected as insufficiently persuasive. Patient #1 was able to recall, in a general fashion, the test given to her by the Respondent. They were not the type of tests which an optician could perform. Patient #1's testimony has been accepted. See, Finding 4. Patient #1 obviously went to Care Optics to obtain a prescription, since she always intended to buy her glasses from Mr. Stellabotte. Accepted in Finding 3. The information written on the back of the card did not constitute a prescription, but it was given to Patient #1 by the Respondent at Care Optic. Rejected. The testimony of Mr. Stellabotte as to the nature of the card he received from the Respondent is not fully accepted. The card which Patient #1 received from the Respondent is exhibit #3, and any testimony to the contrary by Mr. Stellabotte is the result of imperfect recollection. Rejected as unnecessary. The identification of the photograph of the Respondent from the Department's licensure files adequately identified the Respondent as the person who performed the eye examination. It was not necessary for the Department to produce any handwriting analysis. The testimony of Patient #1 is sufficient on this point. Rejected as argument. The testimony of Patient #1 identifying the Respondent is sufficient. Rejected as unnecessary. Rejected as inconsistent with the testimony of Patient #1. She had her eyes examined. The information she received from the Respondent was not derived from a mechanical analysis of the glasses she then had. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Garfield & Associates 3500 North State Road 7, Suite 333 Fort Lauderdale, Florida 33319 LouElla Cook, Executive Director Department of Professional Regulation Board of Opticianry 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
The Issue The issue is whether Samuel Yu was properly graded for his performance on the acupuncture license exam given July 18, 1986, for the location of acupuncture point Ren. 17 Shanzhong.
Findings Of Fact Samuel C. Yu took the acupuncture examination administered by the State Board of Acupuncture on July 18-20, 1986. The examination includes demonstration of practical clinical skills. Dr. Yu received a failing grade for the practical clinical portion of the examination. He challenged the method by which his performance on the clinical examination was graded. If given credit for the location of the point at issue, he would have passed the examination. In the clinical portion of the examination the candidates are required to locate certain acupuncture points on a person who serves as a model for the examination candidates. A committee of examiners locates the points on the body of the model and, after consultation, marks the point with ink which is invisible except under ultra violet light. Candidates do not actually insert needles at those points during the examination, but are required to place small adhesive dots at the point location. That placement is evaluated by illuminating the area with ultra violet light. If more than half the surface of the adhesive dot is within the point location established with the ultra violet ink, the candidate receives credit for the exercise. If more than 50 percent of the dot is outside of the pre-marked point, no score is given. The examiners who evaluated Mr. Yu both agreed that he did not correctly identify point Ren. 17 Shanzhong. The Board of Acupuncture had not taken photographs of Mr. Yu's or any other candidates performance. The evidence about Mr. Yu's examination performance was established through oral testimony of Examiner R. Yang. Although Dr. Yu demonstrated that three of the textbooks recommended by the Board of Acupuncture describe the point Ren. 17 Shanzhong somewhat differently, the variations are not great, and the tolerance area which the examiners establish is sufficiently large so that a minimally competent candidate would be able to locate point Ren. 17 Shanzhong. The collegial decision of three expert acupuncturists to locate the point on the examination model and choose a further tolerance area provides candidates who have minimal skills a fair opportunity to demonstrate their abilities. The method of administration of the examination in general, and with respect to the grading of Dr. Yu's performance in particular, was fair and valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the petition of Samuel C. Yu for regrading of his preformance on the acupuncture practical licensure examination be DISMISSED. DONE AND ORDERED this 16th day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4050 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The filing made by Mr. Yu constitutes a recitation of evidence and argument, but not findings of fact. Consequently, no rulings on the proposals can be made. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Rejected as a recitation of evidence. Generally covered in Finding of Fact 6. Covered in Finding of Fact 8. Not adopted as unnecessary. Covered in Finding of Fact 8. To the extent necessary, covered in Finding of Fact 8. Rejected as unnecessary. COPIES FURNISHED: Mr. Samuel C. Yu 628 Lock Road Deerfield Beach, Florida 33442 Jeffrey H. Barker, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact David R. Ness, Petitioner, attended Southern College of Optometry in Memphis, Tennessee, and graduated in May 1990. Part of his training included a three-month externship with James C. Lanier, O.D., an optometrist practicing in Jacksonville, Florida. Dr. Lanier found him a very competent student, thorough in his fact finding and case histories; and satisfactory, if not above average, in his examination of the patients. Dr. Lanier did not participate in the grading of the examination in issue and has no personal knowledge of Petitioner's performance on the examination. Petitioner sat for the September 1990 Optometry licensure examination. He passed the certification portion of the examination and the laws and rules section; he failed the pharm./ocular portion and the clinical portion. After several challenges to the examination, the Board adjusted some scores, but Petitioner's scores in the pharm./ocular section and the clinical sections were still below passing. Written Examination The pharmacology/ocular written portion of the examination consists of a series of case histories, with five questions directed to each. Petitioner explained that he challenged his score on the following specific questions: History #1, question #4; History #5; question #23; History #7, questions #32-35; and History #10, question #48. Case history #1 describes a 19-year old female soft contact lens wearer with symptoms correctly identified by Petitioner as Giant Papillary Conjunctivitis. The patient relies on her contact lenses because she is an actress. The severity of her condition is 3+ on a scale of 1-4, with four being the most severe. Question #4 requires selection from six choices of the initial management course of choice. Petitioner chose "c", Pred Forte suspension, every two hours. Pred Forte is the strongest commercially available steroid and its application every two hours is reserved for very severe cases. While the condition described is moderate to severe, the better answer is "f", "switch to preservative free system, enzyme cleaning 1 time a week". The patient's cleaning solution, described in the case history, is an old solution with a preservative which is known to cause conjunctivitis. While the safest course would be to discontinue contact lens wear, this is a radical option for a patient who must wear the lenses for her work. The preferred course then is to change the solution to see if the condition improves before moving to a less conservative treatment such as Pred Forte. Case history #5 describes symptoms and includes a color photograph of the eye in issue. Petitioner correctly identified the differential diagnosis as "Essential Iris Atrophy" and "Reiger's Anomaly". The next question, #23, states that the fellow eye shows similar findings in a slit lamp examination, and asks which of the differential diagnoses is the final diagnosis. Petitioner selected "Essential Iris Atrophy". The correct answer is "Reiger's anomaly". Essential Iris Atrophy is almost always unilateral and Reiger's is bilateral. The question required the examinee to know this distinction. Case history #7, describes a 37-year old patient with alleged recent vision field loss which occurred after thoracic surgery. The history describes an examination in which the patient remarks that he "isn't going to sue the physician" and where, with coaxing, his vision is much better than he admits. The patient also presented summary results of carotid artery testing and CT studies, which were normal. In his answers to questions 32-35, Petitioner chose diagnoses and treatment based on his conviction that he should try to help anyone who would come to him. He missed the fact that the patient described in the case history is a malingerer who likely is trying to sue his surgeon, and who requires no treatment. Case history #10 describes a 68-year old patient who is being examined for fitting of an extended wear contact lens. The best corrected vision is 20/50 OD, with or without a contact lens. The examination question includes two photographs, one of the fundus examination, the other of a fluorescein angiogram. An angiogram is obtained by injecting dye in the forearm and taking pictures with a special filter as the dye circulates through the blood vessels within the eye. This process is able to reveal abnormalities in the eye. Petitioner missed the question relating to the final diagnosis, which should have been "age-related macular degeneration with secondary choroidal neovascular membrane". Final diagnosis relied, in part, on the fluorescein angiogram. While Petitioner is not arguing that his answer is correct, he contends that the question itself is invalid, because it depends on a process which optometrists are not licensed to perform and it was too technical for recent graduates. People coming out of school have been exposed to live patients and have seen fluorescein angiograms performed and have seen their photographs. Moreover, in Florida, the number of elderly patients makes it necessary that optometrists be proficient in diagnosing age-related macular degeneration. The Practical/Clinical Examination Section 1 of the clinical portion of the practical examination involves the two examiners' review of the examinee's performance of an actual eye examination of a live patient. The two examiners are briefed extensively prior to the examination as to what to look for, but they do not confer during the examination when scoring various functions. For this reason, there may be disagreement between the two examiners. The scores are averaged. On section 1, item #6, with regard to the patient's case history, "follow-up information", the point spread is 0-7, with points being subtracted for failure to follow up on certain information. One examiner gave Petitioner the maximum number of points for the entire case history section. The other examiner gave Petitioner a "no" (0 points) under "personal ocular history", and commented on the examination score sheet that the examinee did not ask ocular history. The same examiner took off 2 points on item #6, "follow-up information" and commented, "did not ask ocular history". At some point during Petitioner's initial challenge, he was given credit for item #3, because it was determined that he did obtain an ocular history. The additional points were not restored to item #6, but should have been; as the failure to obtain that history is the basis for the reduced score. The examiner was not present at hearing to explain any other basis. Section 2 of the clinical portion of the practical examination requires the examinee to perform a series of functions under the scrutiny of two examiners (not the same two as in section 1). Again, the scores are awarded without consultation and there are discrepancies. In each area the examiner marks "yes" or "no" as to whether the procedure is properly performed. A "no" must be supported with the examiner's comment. Two yes marks entitle the examinee to 2 points; a yes/no is worth one point; and two no's are scored zero. For each function, the examinee must demonstrate twice. That is, he says "ready", and the first examinee views the result, then he prepares again and signals, "ready", for the second examiner. For section 2, the candidate is performing techniques or functions on his own patient, a patient whom he brings to the examination and with whom he is familiar. Petitioner is challenging the grading method for Section 2. In 6 out of 16 techniques or functions, the two examinees disagreed; that is, one gave a "yes", and the other, a "no". Petitioner contends that he should get full credit anytime he got one "yes", since that indicates that two people, the examinee and one examiner, agree. There are several reasons why two examiners may disagree on whether the examinee performed a function or technique properly. In some instances one examiner may give the individual the benefit of the doubt; in other cases the patient might move or blink or the examinee might lose his focus. The fact that two examiners independently assess the results gives the examinee two chances to demonstrate his skill. The third section of the clinical examination requires an examination of a live patient where the refractive error of the patient's vision is determined, and a prescription is made. Before being presented to the examinee, the patient is examined independently by three licensed optometrists serving as "monitors". Their examinations give the refraction results against which the examinee's results are compared. Their examinations also determine whether the patient is suitable; that is, the eye must be refracted correctable to 20/20 and the other eye correctable to 20/50. A fourth monitor reviews the results before the patient is presented to the examinee. In this case the patient was examined by the monitors and was found acceptable. Petitioner had problems with the patient; the best he could read was the 20/25 line. Petitioner felt that the patient should have been disqualified and commented in writing on that at the end of his examination, as was appropriate. The comments were reviewed by Dr. Attaway, who considered that the patient had met the criteria when examined by the monitors. Petitioner's refractions varied significantly from the monitors' refractions, which also varied somewhat from each other. Petitioner received a score of 3, out of possible 20, on this portion of the examination. Dr. Attaway did not, himself, examine the patient and the monitors who performed the examinations were not present to testify. The only evidence to rebut Petitioner's findings was the written report of the monitors. Pass Rate for the Examination Out of 130 candidates, approximately 34 percent passed all parts of the September optometry examination. In 1986, 51 percent passed; in 1987, 33.5 percent passed; in 1988, 59.6 percent passed; and in 1989, 52 percent passed. These figures do not, alone, establish that the test is too technical or unfair, nor does the fact that very good students failed. When the examinations are evaluated, when the examinee's performance is rated, there is no established pass rate; the monitors have no idea how close the individual examinee is to passing, either originally or when a challenge is being addressed. Petitioner was a very articulate and candid witness. His two experts were clearly knowledgeable and were sincerely concerned that he should be licensed. None had the experience of Respondent's witnesses, also well-qualified licensed optometrists, in working with the examination. With the exception of the inconsistent score on Section 1, item #6, Petitioner failed to prove that he is entitled to a higher score on any portion of the examination, or that the examination itself was invalid or unfair.
Recommendation Based on the foregoing, it is hereby, recommended that Petitioner's final score on Section 1 of the clinical examination be adjusted to reflect full credit for Item #6; that he be permitted to retake Section 3 of the clinical examination; and that his remaining challenges to the examination be denied. RECOMMENDED this 29th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0700 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings 1.-2. Adopted in paragraph 2. 3. Adopted in substance in paragraph 20. 4.-6. Rejected as irrelevant. Adopted in summary in paragraph 2. Rejected as contrary to the evidence. Finding of Fact #15 reflects the grades after adjustment. Rejected as unnecessary. Adopted in paragraph 1. Rejected as unnecessary. Rejected as irrelevant. This fact does not make the examination invalid so long as it fairly evaluates the qualification of the applicant. 13.-14. Rejected as statements of statutory language rather than findings of fact. Respondent's Proposed Findings The Hearing Officer is unable to find where in the record the exact final score of Petitioner is reflected. Adopted in paragraph 1. Rejected as restatement of testimony rather than findings of fact. 4.-5. Rejected as unnecessary. 6.-15. Rejected as restatement of testimony; summary statements, or argument, rather than findings of fact. COPIES FURNISHED: David R. Ness 611 Poinsettia Avenue Titusville, FL 32780 Vytas J. Urba, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Patricia Guilford, Exec. Director Dept. of Professional Regulation Board of Optometry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
Findings Of Fact Petitioner sat for the August 24, 1991 Optometry licensure examination. He did exceedingly well on two of the three portions of the examination. His grade on the clinical portion (sections 1 and 2) was 71.5. The minimum passing score was 75.0. Petitioner challenged the behavior of the examiners in section 2 of the clinical portion of the examination, and the grade he received for several individual procedures tested. Petitioner's patient for the clinical examination was his wife, Susan Vazoulas. Mrs. Vazoulas testified that prior to Petitioner entering the examination room for section 2 of the clinical portion of the examination, she overheard the two examiners, one male and one female, discussing material already on their clipboards. The male examiner indicated he had given an "81". The female examiner indicated she had given an "84", but was a "hard liner." Petitioner was not present during this exchange. Mrs. Vazoulas did not see what was on the examiners' clipboards and could not testify with any certainty as to what was being discussed. Every reasonable inference suggests that the examiners' conversation did not apply to Petitioner's section 2 clinical test for the following reasons: The examiners' comments were made before the Petitioner entered the examination room and before he began to take his section 2 clinical examination. The numbers "81" and "84" bear no relationship to any of Petitioner's scores on any portion of his licensure examination. The examiners for section 2 were not the examiners for section 1, whereon Petitioner scored 100%. If anything, had the examiners reached two divergent scores of 81 and 84, respectively, it would more likely suggest the presence of independent judging and the lack of collusion, instead of the presence of collusion and absence of independence as assumed by Petitioner in this instance. The examination room in which section 2 of Petitioner's clinical examination was administered was very small, approximately 8 x 10 feet. During section 2, the two examiners separately viewed each of 16 procedures performed on Mrs. Vazoulas by Petitioner and after each procedure, they individually returned to their respective clipboards to record their scores. The two clipboards were placed on a countertop side by side while not in use. Petitioner and Mrs. Vazoulas each observed the examiners separately marking their respective clipboards but never saw what was written down by either of the examiners. Petitioner and Mrs. Vazoulas felt it would have been hard for each examiner to avoid seeing the score assigned by the other examiner, but neither Petitioner nor Mrs. Vazoulas observed any actual sharing of information or scores during Petitioner's section 2 clinical examination or afterwards. Petitioner and Mrs. Vazoulas testified in terms of the examiners having "the chance" to see each other's clipboard and "the opportunity" for collusion and absence of independence in grading. In this instance, Petitioner considered that identical grades given by both examiners was proof of their collusion and arbitrary and capricious grading. However, similarity of scores is equally susceptible of being interpreted as resulting from each examiner having observed the same performance by Petitioner on each of the 16 procedures and applied the same judging criteria to what s/he saw. The law does not presume illicit behavior without more evidence than that it "could have" happened. Petitioner challenged his section 2 grade for clinical procedures 4-9 for biomicroscopy, alleging that he was graded 17.5 out of a possible 20 points while all parts were checked "yes". In fact, the score sheets show that all parts were not checked "yes" by both examiners. One examiner graded procedure four with "N" for "no". This could result in an "all or nothing" score of zero for that item. Assuming, arguendo, the "yes" and "no" were averaged, Petitioner's score still would not have amounted to the additional 2.5 points Petitioner alleged he was entitled to out of this section of the examination. Respondent's Exhibit 2 is a document titled "Optometry Practical Examination Section 2 - Grading Standards August 1991." The instructions to the examiners state in the second paragraph of that document, "Comment on reason for any NO judgment. Comment if performance was a marginal YES." Thus, examiners could legitimately insert comments even where they responded "yes" in evaluating the performance of the candidate in a given procedure. They did so here. Petitioner challenged his grade on procedure number 15, gonioscopy, stating that partial credit should have been given for the showing of the proper angle. Petitioner's Exhibits 1 and 2, the grade sheets for section 2, reflect that Petitioner received no credit from either examiner. Both "no" responses have comments recorded next to them. Respondent's Exhibit 2, page 4, states the criteria for a "yes" response on procedure number 15, gonioscopy, as: Must be focused on nasal angle with proper illumination Gives proper response to question Both criteria must be satisfied to receive a "yes" response. Petitioner and Respondent concur that Petitioner correctly demonstrated the angle required in procedure 15, gonioscopy, which satisfied one of the two required criteria to receive a "yes" from either examiner. Petitioner attempted, by extrapolation of procedure 5, to show that the remaining criterion was also met. He was not persuasive in this attempt. The grade sheets reflect that Petitioner failed to satisfy the second criterion: to give the correct response to the question posed. Petitioner made no valid showing that he did answer the question correctly or that the points available from this answer would raise his total score 3.5 points for a passing grade. Petitioner challenged his grade for procedure number 1, binocular indirect ophthalmoscopy (BIO). Petitioner admitted that he did this procedure incorrectly by using the 3:00 o'clock position, rather than the 9:00 o'clock position requested by the examiners but felt six points should not have been deducted and it should have been marked "yes, marginal," awarding him a majority of the six lost points. Petitioner did not demonstrate good cause within the grading criteria in evidence why he should have received the "majority," presumably four, points. Petitioner presented no evidence concerning the grading of challenged procedures 11 and 14. As to all of the foregoing, Petitioner's challenge to the effect that he did not understand the grading system was not sufficient to carry his burden of proof to establish that the examination, scoring, and/or grading system was arbitrary or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Professional Regulation enter a final order ratifying the examination grade previously assigned to Petitioner. DONE and RECOMMENDED this 15th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2205 The following constitute specific rulings, pursuant to S120.59 (2) F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: None filed Respondent's PFOF: 1-6 Accepted except for unnecessary, subordinate on cumulative material. 7-13 Accepted except for subordinate material. It is noted that Petitioner bears the burden of proof herein, not Respondent. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 George L. Vazoulas 182C Chestnut Ridge Drive Harrisonburg, VA. 22801 Diane Orcutt, Executive Director Department of Professional Regulation, Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Should Respondent receive a passing grade on the November 1997, Chiropractic Licensure Examination?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The examination for licensure as a chiropractor in the State of Florida is administered by the Department of Business and Professional Regulation, Bureau of Testing, under a contractual arrangement with the Department and consists of three parts: Physical Diagnosis, Technique,and X-ray Interpretation. A candidate for licensure must receive a score of 75.00 on each of the three portions of the examination in order to receive an overall passing grade. A candidate for licensure must pass at least two of the three portions of the examination in order to retake only the failed portion of the Examination. Otherwise, the candidate must retake the entire examination. Petitioner holds a Doctor of Chiropractic degree and is a licensed chiropractor in the State of Georgia. Petitioner practices chiropractic in the State of Georgia. In September 1997, after submitting all documents required to sit for the November 1997, Examination, Petitioner experienced a total retinal detachment in his right eye and underwent ophthalmic surgery. Petitioner has significant vision impairment and his vision is described as “poor” by his ophthalmic surgeon. In November 1997, Petitioner’s ophthalmic physician opined that Petitioner “has not reached complete recovery and I do not think he has accommodated to his loss of vision in the right eye.” Prior to the Examination, Petitioner telephoned the Board to discuss his recent vision impairment and requested the special accommodations of being allowed to sit up front and to be given more time on the Examination. A Board representative requested confirmation from a physician of the vision impairment. By letter dated November 7, 1997, Robert T. King, M.D., Petitioner’s ophthalmic surgeon, advised the Board of Petitioner’s vision problem and indicated that he suspected that Petitioner would require additional time for the examination. If timely requested, accommodations such as flexible time, flexible settings, flexible recording of responses, and flexible format are available to the examinees. There is no evidence that the Board responded to the request by Dr. King or to Petitioner’s earlier verbal request for accommodations. Likewise, there is no evidence that Petitioner, prior to the Examination, followed through on his request for accommodations. On the day of the Examination, Petitioner requested a large print test booklet. Despite his impaired vision, Petitioner decided to continue with the November 1997, Examination. Petitioner passed the Technique portion of the Examination and is not challenging that portion of the Examination. Petitioner was advised that his score on the Physical Diagnosis and X-ray Interpretation portions of the Examination was 73.50 and 72.00, respectively. In his initial petition letter, Petitioner challenged the grading of his answers to questions 2, 3, 4, 8, 12, 17, and 22 on the Physical Diagnosis portion of the Examination and challenged the grading of his answer to question 24 and the accommodations he was not given for a disability on the X-ray portion of the Examination. Prior to the hearing, the Department awarded Petitioner credit for his answer to question 24 on the X-ray Interpretation portion of the Examination. Petitioner no longer challenges the Department on his answer to question 24. Petitioner’s score on the X-ray Interpretation portion of the Examination has been raised to 73.50 by the Department. At the hearing, Petitioner withdrew his challenge to questions 2, 3, and 17 of the Physical Diagnosis portion of the Examination. Without objection from the Department, Petitioner amended his petition letter to include a challenge to his answer to question 13 of the Physical Diagnosis portion of the Examination. During the X-ray Interpretation portion of the Examination, slide screens are set up in the front of the examination room and slides of an X-ray are projected on the screens. All lights in the examination room are turned off. The examinee has a test booklet and an answer sheet. A pen light is provided to read the test booklet and to see the answer sheet. The answer sheet is a “Scan-Tron” sometimes called a “bubble sheet.” In order to record an answer on the answer sheet, the examinee darkens one of four small circles (bubbles) spaced within an approximate one-inch column on the answer sheet. The examinee is allowed one and one-half minutes to answer each question. Answering the question requires the examinee to read the question in the test booklet, view the projected slide of the X-ray on the screen, and then locate and darken the appropriate “bubble” on the answer sheet with a pencil. During the X-ray Interpretation portion of the Examination, Petitioner was allowed to sit up front but was not allowed additional time or given a large print booklet. Another examinee with vision problems took the X-ray Interpretation portion of the Examination at the same time as Petitioner. This examinee was allowed to sit closer to the slide screen, given a large print test booklet, and an unlimited amount of time to transcribe answers from the test booklet to the answer sheet. However, there was no evidence as to the extent of this examinee’s vision problem or when this examinee had requested special accommodations. Petitioner did not advise any of the proctors present at the test site of the difficulty that he was having with his vision. Because of his vision impairment, the nature of the X-ray Interpretation portion of the Examination made it difficult for Petitioner. Additionally the lack of additional time resulted in Petitioner not being able to properly check his answers in the test booklet with those on the answer sheet. Petitioner did not request that his examination booklet be graded instead of his answer sheet (bubble sheet). The Examination Instructions provide in pertinent part as follows: While you may write in your examination booklet, please note that the examination booklets used during the actual examination are shredded after the examination administration. Post examination review candidates will NOT be given their original examination booklet but will be provided with a clean, exact copy of the original examination booklet. There was no evidence that the Department’s denial of Petitioner’s request for additional time and a large print test booklet was due to cost, administration restraints, or availability of resources. Petitioner contends that because he was denied certain accommodations that he most likely miss-keyed some of his answers on the X-ray Interpretation portion of the Examination when he transposed his answers from the test booklet to the answer sheet. Without the test booklet, there is insufficient evidence to show that Petitioner incorrectly transposed any answer from his test booklet to the answer sheet, notwithstanding Petitioner’s testimony to the contrary. The Physical Diagnosis portion of the Examination is a subjective test in which the examinee is presented with a test booklet with certain information. There is an examination patient (live mannequin) provided for the examinee to demonstrate answers to various questions. There are two examiners who score the examinee’s answers. This portion of the examination is videotaped. An examiner for the examination for licensure as chiropractic must be a licensed chiropractor in the State of Florida with five years of continuous practice in the State of Florida and must not have had a chiropractic license or other health care license suspended, revoked, or otherwise disciplined. Before an examination, examiners are required to go through standardization training and are not allowed to consult with each other on their scoring of an examination. After an examination, the Bureau of Testing calculates the agreement rates of the examiners to ensure scores are based on the standardization training. The examiners who graded Petitioner’s examination had agreement rates of 93 percent and 95 percent. The Department considers 80 percent or better acceptable. Test questions on the Physical Diagnosis portion of the Examination are assigned different point values, with some questions having partial credit available. A question’s point value is based on the frequency, practicality, importance of the subject matter, and how much harm could be done to the patient if the procedure is not performed correctly. Partial credit is given on some questions and not others because in some situations a partial answer is considered as a no answer, whereas in other situations, partial information is considered better than no information. The Department does not award a candidate partial credit on a question where it has been determined that partial credit is not available. The first two questions challenged by Petitioner, Questions Nos. 4 and 8, are on the “Case 1” portion of the Physical Diagnosis portion of the Examination. Within “Case 1,” the examinee is required to demonstrate ability relating to case history, physical examination, selection of laboratory tests, selection of diagnostic imaging, providing a diagnosis, and exercising clinical judgment. In “Case 1,” the examinee was provided with a theoretical 68-year old female with midback and chest pain and a variety of physical complaints. After developing a case history (Question No. 1) and performing a physical examination (Question Nos. 2 and 3). The examinee was required to select laboratory tests in Question No. 4 which had assigned to it a value of either zero points or four points. The specific question in Question No. 4 is: “For the case presented, name which laboratory tests or diagnostic procedures, if any, would confirm your suspected diagnosis.” 31`. In response to this question, Petitioner stated that he would order a CPK, SGOT, CBD, and an EKG. Petitioner was advised by the examiners that an EKG was not available. Petitioner also requested a urinalysis to look for infection. An SGOT laboratory test, also known as an AST test, is a laboratory test used to indicate if there is damage to the heart. A CPK laboratory test, also known as a CK tests (which Petitioner correctly referred to as CPK but also referred to as CKP or CK, is also a laboratory test which detects heart damage. The examiners were informed in their booklets that the suspected diagnosis was congestive heart failure. The examinee was not advised that the suspected diagnosis was congestive heart failure. The examiners were also informed in their booklet that they should expect to hear the answer for Question No. 4 to be “SMAC” and a “CBC” laboratory test. SMAC is an acronym for the laboratory test know as Sequential Multi-Channel Analyzer with Computer. A SMAC laboratory test is a series of individual tests, or a biochemistry profile. And while the number of individual tests performed in a SMAC laboratory test may vary from laboratory to laboratory, there are certain individual laboratory test that are always included in a SMAC laboratory test. SMAC and CBC was the Department’s preferred answer to Question No. 4. However, based on the testimony of Dr. Roraback, which I find to be credible, Petitioner’s answer to Question No. 4 was equally correct in that the laboratory tests suggested by Petitioner would have confirmed the suspected diagnosis of congestive heart failure notwithstanding the testimony of Dr. Heyser to the contrary. Therefore, Petitioner should have been awarded 4 points for his answer to Question No. 4. In Question No. 8, Petitioner was asked to provide the diagnosis for this Case 1 patient. The value assigned to Question No. 8 is either zero points or eight points. The examiners were instructed by their test booklet that “congestive heart failure” was the correct answer. The answer sought by the Department, congestive heart failure, is a “specific ICD-9” diagnosis. ICD-9 stands for the International Classification for Disease Diagnosis. Cardiopulmonary disease is not an ICD-9 diagnosis. Petitioner’s initial oral answer to Question No. 8 was “COPD.” COPD is an acronym for chronic obstructive pulmonary disease. In response to an examiner’s question of “Which is?, Petitioner stated “cardiopulmonary disease.” In response to another examiner’s question who asked “Can you be more specific?”, Petitioner responded “It is a disease with the --- because the heart is enlarged, it is infringing on the lungs, and it causes a back-up of fluid in the lungs.” Cardiopulmonary disease is a very broad diagnosis and Petitioner’s narrative description of that diagnosis may have included congestive heart failure. However, based on the testimony of Dr. Heyser, which I find credible, Petitioner’s answer was incorrect in that it lacked the specificity the Department was seeking. Questions Nos. 11, 12, and 13 of the Physical Diagnosis portion relate to orthopedics. In Question No. 11, the examinee was asked to name orthopedic tests which would be used to evaluate a shoulder problem. Petitioner appropriately named these tests. In Question No. 12, Petitioner was asked to demonstrate several of the named tests. In Question No. 13, Petitioner was asked to name the condition which would be indicated by a positive response on each particular orthopedic test. The only test which is in dispute with regard to Question Nos. 12 and 13 is the Dawbarn’s sign or test. Petitioner’s demonstration of the Dawbarn’s test is shown on videotape. On the videotape of Petitioner’s performance with regard to the demonstration (Question No. l2), Petitioner can be seen placing his finger in the area of the patient’s shoulder and raising (abducting) the patient’s arm, performing the test, while at the same time stating: Dawbarn’s is you palpate the area of tenderness and, as I raise your arm, please let me know when the pain stops, okay. If the pain stops, it’s indicative of bursitis. It is clear from the videotape, the testimony of Dr. Roraback, and Petitioner’s exhibits that Petitioner correctly demonstrated the Dawbarn’s test. However, while one examiner gave Petitioner full credit (four points) on Question No.12, the other examiner only gave Petitioner partial credit (three points) The examiner awarding three points stated in comments: “Dawbarn’s performed improperly.” Petitioner correctly performed the Dawbarn’s test and should have been given the full four points on Question No. 12. Question No. 13 asks the examinee to state what disease conditions positive results on the different tests would indicate. With regard to Dawbarn’s test, Petitioner stated that a positive response would be indicative of “subdeltoid bursitis.” Question No. 13 was a four-point question, with partial credit being available at one, two, and three points. On Question No. 13, each examiner gave Petitioner three points out of four. Each examiner appears to have deducted one point from Petitioner’s answer, because Petitioner named subdeltoid bursitis. The examiners were informed to look for the answer “subacromial“ bursitis. Five different texts received into evidence and Dr. Roraback’s expert testimony reveal that the terms “subdeltoid bursitis” and “subacromial bursitis” are used interchangeably. One of the text specifically states: A consideration of shoulder movements would not be complete without reference to the role of subacromial (subdeltoid) bursa . . . There may be two, a subacromial and a subdeltoid, but they function as one and are frequently fused. Whether fused or not, subacromial bursa is the more common name. Petitioner’s Exhibit 12, the Merck’s Manual states: Subacromial bursitis (subdeltoid bursitis or supraspinatus tendinitis) presents with localized pain and tenderness of the shoulder, particularly in abduction in an arc from 50 to 130 degrees. Petitioner should have received full credit (four points) for Question No. 13, because a positive response to the Dawbarn’s test is indicative of subdeltoid bursitis notwithstanding the testimony of Dr. Heyser to the contrary. In Question 22, Petitioner was asked to perform a “triceps reflex”, which is one of a series of deep tendon reflexes that the examinees were asked to perform. A triceps reflex is one of several deep tendon reflexes done at various locations in the body to determine neurological status. The triceps muscle is a muscle of the upper arm, and the triceps tendon attaches the muscle to the upper portion of the lower arm bones. It is necessary for the triceps tendon to cross the elbow joint between the upper and lower arm bones in order to move the joint. Proximal means the end of a muscle or tendon closest to the body. In this case, distal means the area closer to the hand. In order for the triceps tendon to move the joint, the tendon must pass from the proximal end of the joint to the distal end of the joint. The videotape shows Petitioner preparing the patient to avoid a voluntary reflex, and then tapping an area close to the elbow of the patient, with the patient’s lower arm then reacting by moving in a somewhat jerking manner away from the body. The reason the arm “pops out to the side” is that the triceps is responsible for extending the elbow. This happens because, when the tendon is quickly stretched (tapped), it signals a nerve to tell the muscle to contract in order to prevent damage to the area. This contraction results in the lower arm responding with movement. Question No. 22 has a maximum value of two points, with partial credit of one point available. Each examiner awarded Petitioner partial credit of one point. It appears from the examiners’ comments on the score sheet that they did not believe Petitioner appropriately struck the tendon for the triceps muscle, or believed Petitioner tapped in an area “distal” to the elbow joint. With regard to distal versus proximal, it is clear that Petitioner did tap an area of the arm distal to the elbow joint between the upper arm and the lower arm, but very close to the elbow joint. However, since the triceps tendon must attach to an area of the lower arm it is possible to tap the tendon distal to the joint. It is clear from the videotape that the arm movement response was not voluntary and was consistent with a triceps reflex and that the triceps reflex was performed properly. Therefore, Petitioner is entitled to the full two points available for Question No. 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner full credit for his answers to Question Nos. 4, 12, 13, and 22 of the Physical Diagnosis portion of the Examination and a final score of 80 but deny Petitioner’s challenge to Question No. 8 of the Physical Diagnosis portion of the Examination and deny any further challenge to the X-ray Interpretation portion of the Examination. It is further recommended, that Petitioner be allowed to retake the X-ray Interpretation portion of the Examination at the earliest possible date without cost. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0752 Angela T. Hall, Agency Clerk Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Alfred W. Clark, Esquire Post Office Box 623 117 South Gadsden Street Tallahassee, Florida 32302 Anne Marie Williamson, Esquire Department of Health 1309 Winewood Boulevard Building 6, Room 240 Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner took the optometry examination administered to candidates for certification for licensure to practice optometry in the State of Florida in July of 1980. The written portion of the optometry examination consisted of four sections or sub-parts; ocular pathology, theory and practice, pharmacology and laws and rules. The ocular pathology section consisted of 100 written and 20 slide questions. One and one-half hours were allotted for completion of the ocular pathology section. Thirty minutes was permitted for the completion of the slide portions of the ocular pathology sub-part. The written and slide portions of the ocular pathology section were separated by the administration of the theory and practice sub-part of the optometry exam, which consisted of one hundred items with one and one-half hours permitted for completion. The Petitioner completed the ocular pathology section of the exam and received a final grade of 69. A minimum passing grade of 70 was required by the Respondent on that portion of the optometry exam. Ocular pathology was the only portion of the exam which the Petitioner failed. An item analysis of the items on the ocular pathology portion of the examination was undertaken by the Department of Professional Regulation staff subsequent to administration of the examination. The item analysis undertaken was in conformity with standard post-test procedures for determining the validity of test items. Following the item analysis review, members of the Board of Optometry who formulated the exam received the item analysis results and recommended to the Board that credit be given to all candidates, including Petitioner, for each item on the ocular pathology portion of the examination which was determined to be invalid. As a result of the Board's authorization, credit was given to all candidates for 22 percent of the examination. The ocular pathology portion of the examination had a higher error or adjustment rate than the other subparts of the examination which ranged from 2 percent to 15 percent. The points awarded by the Board on the ocular pathology portion of the exam to compensate for invalid test questions were awarded in a manner commensurate with accepted testing techniques for evaluating test questions. Petitioner's score on the ocular pathology portion of the exam was adjusted from 46 to 58 points following the Board's first authorized analysis. Following a second regrading that the Board authorized to compensate for questions eliminated as a result of examinee review, the Petitioner's score on the ocular pathology portion was again adjusted upward from 58 to 69 points. The method utilized by the Department in reviewing examinations authorizes credit for questionable exam items. Such an approach to testing results in scores which are adjusted upward as test items are eliminated. This is a liberal approach to testing philosophy which effectively resolves doubts regarding a correct answer in favor of the examinee. Petitioner completed the ocular pathology portion of the examination but did not have sufficient time to review all his responses before turning in the test. Petitioner did not, however, participate in a review of his examination when given an opportunity to do so by the Department within thirty (30) days after the announcement of test scores.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying the Petitioner's request that his score pathology portion of the July, 1980 optometry examination be adjusted to reflect a passing grade. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH, 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 30th day of July, 1981. COPIES FURNISHED: Robert D. Newell, Esquire OERTEL AND LARAMORE, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32302 Robert E. McGuire, O.D. 2530 Stern Drive Atlantic Beach, Florida 32233
