The Issue Should Petitioner receive a passing grade for the technique portion for the November 1997 chiropractic licensure examination (the examination) administered by Respondent?
Findings Of Fact Petitioner practices chiropractic in Massachusetts. In November 1997, Petitioner took the Florida chiropractic licensure examination. To pass that examination it was necessary for Petitioner to score 75 points on the technique portion of the examination. Petitioner received a score of 70 points. Petitioner disputes the scores received on several questions, described as questions 1, 4, and 7. Each contested question is worth five points. As a candidate for licensure, Petitioner received an information booklet which contained a reading list informing the candidates of writings of experts in various subjects covered by the examination, upon whom the candidates should rely. This included a list of experts in the technique portion of the examination. Respondent intended to defer to the opinions of those experts in grading the candidates. Additionally, Petitioner and other candidates in the November 1997 examination, were provided written instructions concerning the technique portion of the examination. Those instructions stated: TECHNIQUE EXAMINATION FORM 1 Demonstrate the following chiropractic techniques on the patient. For each technique, indicate the patient and doctor position. location of the segment. patient and doctor contact point. line of drive. Do not actually perform the techniques, but set them up and indicate how you would perform them. If the technique is grossly inadequate and/or clinically inappropriate, no credit will be given for that technique. Technique 1: Bilateral Anterior-Superior Ilia Technique 2: Posterior Radial Head on Left Technique 3: Plantar Cuboid Technique 4: Posterior Superior Occiput on Right Technique 5: L-2, Left Posterior Spinous Yes or No for position, location, contact, and line of drive/correction CHIROPRACTIC PRACTICAL EXAMINATION 11/97 TECHNIQUE (EXAMINER) The expectation was that each candidate in the examination would set up and indicate the manner in which the candidate would perform the five techniques and the four specific positions, locations, contact points, and lines of drive related to the five techniques, without actually performing to conclusion. Petitioner and other candidates were graded by two examiners. The examiners, in scoring the candidates, used a grading sheet which described the activities by referring to the five techniques as cases. The various positions, locations, contact points, and lines of drive were numbered 1 through 20, with the first four numbers referring to case 1, numbers 5 through 8 referring to case 2, et cetera. Before performing as examiners in the November 1997 session, the examiners who graded Petitioner underwent training to ensure that they followed the same criteria for scoring the Petitioner. Petitioner contests the scores that he received in relation to technique 1 position a./case 1 position 1; technique 1 line of drive d./case 1 line of drive 4; and technique 2 patient and contact point c./case 2 contact point 7. Those items respectively correspond to questions 1, 4, and 7, referred to by the parties. After the two examiners entered the individual scores for the various items within a technique, the scores by the individual examiners were added to arrive at an aggregate score. The aggregate score was then divided by two to reach the final results on the technique portion of the examination. By that arrangement Petitioner received a score of 70 points, insufficient to pass the technique portion of the examination. Although examiner 07, in the score sheet reference case 1 position 1, marked "Y" to point out that the Petitioner had achieved compliance with the expectations of that technique, the examiner did not assign five points to the Petitioner indicating credit for that item. Instead the score sheet reflects zero points for the item. Examiner 15 in relation to that item, wrote "N" on the score sheet signifying non-compliance and provided zero points for non-compliance. In all other respects the scores of the two examiners in relation to the technique portion of the examination, to include the disputed items, were in accord. Notwithstanding the determination by the initial examiners that Petitioner had failed the technique portion, Respondent instituted a non-rule policy to have three additional examiners review Petitioner's performance on the technique portion, by resort to the audio-video tape that had been made during the pendency of the technique portion of the examination. Apparently, Respondent in view of the reference by examiner 07 to "Y," indicating compliance with case 1 position 1, treated the item in a manner which signified compliance. Thus Petitioner was entitled to 5 points on the score sheet of examiner 07. The activities of the discrepancy reviewers were designed to determine whether that view finding compliance should be upheld in a setting where examiner 15 had entered "N" for that item signifying non-compliance. The review was expected to break the impasse. The three reviewers determined that Petitioner had not complied with the requirements of case 1 position 1. As a result, the score of 70 points, the average arrived at by adding and then dividing the two 70-point scores assigned by the original examiners was upheld. When Petitioner was given notice of the examination results, the 70-point score for the technique portion was reflected in those results. By inference it is found that the original examiners and discrepancy reviewers practiced chiropractic in Florida. In reference to case 1 position 1, examiner 15 commented about "contact P.S.I.S. should be ischium." P.S.I.S. stands for Postier Superior Iliac Spine. Examiner 07 made no comment concerning that item. In reference to case 1 line of drive 4, both examiners felt that Petitioner had not complied with that requirement. Examiner 07, in commenting, stated "not on ischium." Examiner 15 commented "wrong line of drive." In reference to case 2 contact point 7, examiner 07 commented, "Not thumb-thenar." Examiner 15 commented, "No thumb contact." At the hearing to contest the preliminary determination finding Petitioner to have failed the technique portion of the examination, Petitioner offered his testimony as an expert in chiropractic concerning the several items at issue. To rebut that testimony, Respondent presented Dr. Darryl Thomas Mathis, an expert who practices chiropractic in Florida. Dr. Mathis also served as an examiner in the licensure examination, but did not test Petitioner. In his opinion Petitioner feels that he is entitled to additional points on each of the several questions at issue. In his opinion, Dr. Mathis disagrees. In explaining his performance related to case 1 position 1, Petitioner opined that his placement of the patient in the side posture position was correct. Petitioner also opined that his position for the case was correct. By contrast to the Petitioner's opinion concerning case 1 position 1, Dr. Mathis expressed the opinion that Petitioner's position in addressing the patient was incorrect. According to Dr. Mathis, Petitioner had his hand pointing upward parallel to the spine of the patient and not 90 degrees to the spine when contacting the ischium as required. In Dr. Mathis' opinion the table height for the examination area Petitioner was working in did not prohibit Petitioner from positioning himself appropriately to demonstrate his position reference to the patient. Dr. Mathis' opinion is accepted. Petitioner is not entitled to receive points for case 1 position 1. In reference to case 1 line of drive 4, Petitioner offered his explanation in the examination that he would use the opposite of the actual listing. He opined that given the way that the inter-joint subluxates, one would go in the opposite direction to get a more neutral setting. Therefore when dealing with anterior-superior, one would go postier and inferior to accomplish the opposite of the listing. In contrast, Dr. Mathis, in offering his opinion about this item, referred to the anterior-superior listing as one in which the pelvis, in the circumstance that is bilateral, makes it such that both hip bones, or the pelvis in its entirety, has tipped forward and up over the femur heads or leg bones. Noting that Petitioner stated in his examination that he would thrust in the opposite manner, postier to anterior, meaning back to front, and superior to inferior, from top to bottom, Dr. Mathis opined that Petitioner was partially correct. However, Dr. Mathis was persuaded that additional information was required as to the actual angle or direction of thrust determined by the shaft of the femur or leg bone, and this additional information was not addressed by Petitioner. Dr. Mathis criticizes Petitioner's explanation of the technique to be employed on this item by leaving out the shaft of the femur as constituting the determinate of the angle employed. Moreover, Dr. Mathis did not believe that Petitioner could, in the attempt to demonstrate the technique at issue, perform adequately. The Petitioner was on the upper portion of the pelvis or ilium as opposed to being on the ischium, or lower portion of the pelvis. Consequently, according to Dr. Mathis, if Petitioner was going to thrust in the direction that Petitioner stated he would, he could not get the correction that he was attempting to obtain because Petitioner was on the wrong segment or portion of the pelvis. As Dr. Mathis perceives it, Petitioner could not physically accomplish by demonstration, what he claimed he could do because Petitioner was in the wrong location to make that correction. Dr. Mathis' opinion about case 1 line of drive 4 is accepted. Petitioner is not entitled to receive points for this item. Case 2 contact point 7 is what Petitioner refers as to tennis elbow. Petitioner concedes that normally he would use the thumb as the contact point; however, he offers his opinion that during the time of his practice, he has learned other techniques. According to Petitioner, those other techniques are especially useful to address an acute patient with a lot of swelling, where a thumb contact can be painful. Therefore, Petitioner believes that the thenar, the soft part of the palm of the hand below the thumb, is appropriate as a contact point in an acute situation. Given this alternative, Petitioner did not believe that his use of the thenar in the examination was harmful. By contrast Dr. Mathis believes that the thumb is the only acceptable answer. Further, Dr. Mathis stated that the reference list provided to Petitioner and other candidates prior to the examination, in association with A.Z. States' description of the appropriate technique, upon which the Respondent relied in determining the appropriate answer for this item, concludes that the thumb is to be employed in this technique. Dr. Mathis' opinion is accepted. Petitioner is not entitled to receive points for case 2 contact point 7.
Recommendation It is, RECOMMENDED: That a Final Order be issued finding that Petitioner did not pass the technique portion of the 1997 chiropractic licensure examination. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: John Bisanti 150 Sumner Avenue Springfield, Massachusetts 01108 Ann Marie Frazee, Esquire Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0752
Findings Of Fact Respondent, Richard Powers, was at all times material hereto a licensed chiropractor in the State of Florida, having been issued license number CH0003372. Respondent has routinely advertised his chiropractic practice in the Palm Beach Post. On July 8, 1984, July 15, 1984, and September 2, 1984, Respondent ran an advertisement in the Palm Beach Post which offered a free examination and which stated that the "usual value of this exam is $80. This includes X-rays if needed." The advertisement did not include the disclaimer mandated by Section 455.24, Florida Statutes. That statute, effective June 12, 1984, required that: In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider ... (such as Respondent) ... 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 WHICH 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. By memorandum dated September 30, 1984, the Department of Professional Regulation, Board of Chiropractic (Board), advised all licensees of the aforesaid amendment to section 455.24. Respondent asserts he had no knowledge of the amendment until his receipt of the Board's memorandum in October, 1984, and that he complied, or attempted to comply, with the amendment at all times thereafter. The evidence supports Respondent's assertions. The advertisements of July 8, 1984, and July 15, 1984, were captioned in bold type "ADVANCED APPLIED CHIROPRACTIC," listed Respondent as a diplomate of the National Board of Chiropractic, and concluded in bold type "A STANDARD OF EXCELLENCE." The advertisement of September 2, 1984, touted Respondent's clinic as "Advanced Applied Chiropractic and Comprehensive Pain Center." The generally accepted definition within the medical community of diplomate is an individual who has completed an extensive post graduate program and successfully passed the board's examination. This establishes superior qualifications in the individual's field of practice. Although the National Board of Chiropractic issues diplomate certification to those individuals who pass its examination, its examination is a basic licensing examination which establishes minimal competency, not excellence. Respondent's use of the phrase "Advanced Applied Chiropractic" to describe his clinic implies that he possesses skills superior to the average chiropractor. Respondent has registered the phrase "Advanced Applied Chiropractic" as a fictitious name. Respondent was, on one prior occasion, disciplined by the Board for an advertising violation.
Findings Of Fact Petitioner was a candidate for the May 1988, Chiropractic Physiotherapy certification examination. The exam consists of a written and an oral part, covering various areas of chiropractic physiotherapy. The written and oral parts of the exam are graded separately and a candidate must score 75 points on each part in order to pass and be certified in Physiotherapy. Petitioner had previously passed the written portion of the exam and was attempting only the oral portion of the physiotherapy exam. Petitioner claims he was incorrectly graded on the oral exam in the areas of manual, ultrasound and galvanic therapy. At the hearing Petitioner abandoned his claim that he was incorrectly graded on the galvanic therapy portion of the exam and that claim is not considered further for purposes of this recommended order. Petitioner obtained a score of 66.6 on the oral exam. The oral practice exam for physiotherapy certification is graded subjectively according to a candidate's response to questions asked by two grading chiropractors. The graders have been licensed to practice chiropractic for more than five years in Florida and have undergone some grade standardization training prior to examining the candidate for certification. Each grader assigns his or her point score independent of the other grader. A candidate's response therefore has two scores assigned by each grader. The points given by each grader are totalled. The two totals are then averaged together for the overall score on the exam. Some difference in the points assigned often occur. However, the difference between the two scores seldom exceeds 1 point and would therefore not be an unreasonable discrepancy when consideration is given to the effects of grading a subjective test and the effects of averaging the two point scores given by each grader. The grade range is from 1-4 points with one being the lowest score and four being the highest score. A score of 4 points is given when a candidate demonstrates superior or expert knowledge in the subject area tested. A score of 3 points is given when a candidate demonstrates minimal competency in the subject area tested. A score of 2 points is given when the candidate's answer is wrong but not dangerous to the patient. A score of 1 point is given when a candidate's response is wrong and dangerous to the patient. Dr. Brennan scored a 1.5 and 2.5 on the manual portion of the exam and a 1.5 and 2.5 on the ultrasound portion of the exam. In both instances Petitioner's answers to the questions covering the manual and ultrasound areas of the exam were wrong. Therefore the scores given by each grader could not exceed 2.9 points. Even if the highest allowable score is awarded for Petitioner's responses the additional points are not sufficient to raise Petitioner's score to a 75. Based on the above facts Petitioner has failed to present sufficient evidence to establish that he should be certified in Chiropractic Physiotherapy. More importantly, however, Petitioner's answer to the ultrasound portion of the exam was wrong and dangerous to the patient. Petitioner was clearly confused by the manner in which the question was asked by the examiner. However, the confusion did not exclude the candidate's ability or opportunity to give the correct answer in order to take the safest course of therapy to the patient. To Petitioner's credit he did demonstrate competency in his responses to the other question pertaining to the ultrasound area. It was the application of that knowledge that Petitioner failed to demonstrate. The explanations given by each grader, justifying a failing score given to the candidate, reflect the above. Therefore, neither of the graders scores on the ultrasound portion of the exam can be said to be incorrect and should remain the same. Petitioner failed to demonstrate that the two grader's scores on the manual and ultrasound portion of the exam were devoid of logic or reason for its respective assignment. Petitioner, therefore, failed to demonstrate that he was incorrectly graded on the oral exam and should be certified in Chiropractic Physiotherapy.
Recommendation Based on the foregoing Findings of Fact acid Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that he was incorrectly graded on the Chiropractic Physiotherapy exam and should be certified in the area of Chiropractic Physiotherapy. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX The facts contained in paragraphs 1, 2, 3 and 4 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 5 and 6 of Respondent's Proposed Findings of Facts are subordinate. COPIES FURNISHED: Brian P. Brennan 5828 Rawson Lan Pensacola, Florida 32503 E. Harper Field General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Kenneth Easley Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Pat Gilford Executive Director 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729
The Issue The issue in this case is whether the Petitioner is entitled to a passing grade on the November, 1987, Chiropractic (Proprietary Drug) licensure examination. The Petitioner challenged two questions on that examination, but at the hearing presented evidence regarding only one of the challenged questions, namely, question 29. The Petitioner testified on his own behalf, but did not call any other witnesses. The Petitioner also presented copies of pages from several published reference books. The parties stipulated that official recognition of those pages could be taken. The Petitioner also offered other documents which were rejected as exhibits and are not included in the record. The Respondent presented the testimony of one witness, an expert in the fields of pharmacy and pharmacology. The Respondent also offered several exhibits which were received in evidence. Following the hearing, the parties were allowed until January 9, 1989, within which to file their proposed recommended orders. The Petitioner filed a timely proposed recommended order, the factual aspects of which are addressed in the appendix to this recommended order. The Respondent did not file a proposed recommended order.
Findings Of Fact Based on the proceedings at the formal hearing in this case, I make the following findings of fact. In November of 1987, the Petitioner took the chiropractic licensure examination. The Petitioner has been assigned a score of 73.3 on the proprietary drug portion of that examination. A score of 75 is the minimum passing score on the proprietary drug portion of the examination. If the Petitioner is given credit for one additional question, he will be entitled to a passing score on the subject portion of the examination. The Petitioner was not given credit for his answer choice on question number 29. He chose answer B. The Respondent contends that the only correct answer choice is answer A. The issue of whether the Petitioner is entitled to credit for his answer choice on question number 29 turns on whether use of an inhalant containing epinephrine is seriously contraindicated by both of the following conditions: angina pectoris and pregnancy. The use of such an inhalant is seriously contraindicated by the condition of angina pectoris. Epinephrine should never be administered to a patient who suffers from angina pectoris. The use of such an inhalant is not seriously contraindicated by the condition of pregnancy. An epinephrine based inhalant should be used with caution during pregnancy, but the condition of pregnancy does not contraindicate the use of such an inhalant. The Petitioner's choice of answer B is an incorrect choice, because the condition of pregnancy does not seriously contraindicate the use of a inhalant containing epinephrine. Therefore, the Petitioner is not entitled to credit for his answer to question number 29.
Recommendation Based on all of the foregoing, it is recommended that a final order be issued assigning to the Petitioner a final grade of 73.3 and concluding that the Petitioner has failed the subject examination. DONE AND ENTERED this 18th day of January, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4011 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Petitioner's proposed recommended order consists of four unnumbered paragraphs, each of which is more in the nature of argument than in the nature of proposed findings of fact. Nevertheless, to the extent those paragraphs assert or imply factual matters, they are addressed as follows: First Paragraph: Rejected as contrary to the greater weight of the evidence. Second Paragraph: Rejected as contrary to the greater weight of the evidence. Angina pectoris is the only correct answer. Third Paragraph: Rejected as contrary to the greater weight of the evidence. Fourth Paragraph: Rejected as constituting a conclusion which is contrary to the greater weight of the evidence. Findings proposed by Respondent: (No findings were proposed by Respondent.) COPIES FURNISHED: James E. Marino, D.C., pro se 210 South Street Daytona Beach, Florida 32014 William A. Leffler, III, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Chiropractic Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.
Findings Of Fact Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows: Grader 27--Cervical (3), thoracic (3), occipital (3), pelvic (2), rib (3), and soft tissue (3.5). Grader 37--Cervical (3), thoracic (3), occipital (3), pelvic (3), rib (3), and soft tissue (3). Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance: Cervical (3), thoracic (2.5), occipital (3), pelvic (2), rib (3), and soft tissue (2.5). Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Chiropractic Examiners, enter a Final Order denying the request for relief filed by Jens Emilio Valle and dismissing the petition for relief. DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of August, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Examiners 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7). COPIES FURNISHED: E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067 Patricia Guilford Executive Director Board of Chiropractic Examiners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 =================================================================
Findings Of Fact On March 16, 1989, Petitioner Womer filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania. On March 31, 1989, Petitioner Krakow filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania. On April 11, 1989, Womer was advised that his application was incomplete because the Board had not received the signed Licensure Verification Form from the Pennsylvania Board of Chiropractic. Because it was incomplete, Womer withdrew his application from consideration at the April 13, 1989, Board meeting. The Licensure Verification Form for Womer was received by the Board on April 24, 1989. With the Form, Womer also sent a letter to the Board which stated: It is my understanding, upon receipt of the enclosed form by the Florida Board of Chiropractic, that Dr. Womer's application for licensure by endorsement is now complete. If you agree, please reagenda Dr. Womer's Application for Licensure by Endorsement for the next chiropractic board meeting, and advise regarding the time and place of same. No further timely request from the Board for additional information was received by Womer. The Board first verbally notified Womer of its intent to deny his application for licensure by endorsement at its public meeting in Orlando, Florida, on July 27, 1989, ninety-four days after receipt by the Board of the Licensure Verification Form which made his application complete. Womer is licensed since 1946 by the Pennsylvania State Board of Medical Examiners as a Drugless Therapist with the right to treat the sick by chiropractic. This was the only form of licensure available to chiropractors at that time. Womer has practiced as a chiropractor since his licensure in 1946. The Pennsylvania Board of Chiropractic, which came into existence in the early 1950's, refused to complete and sign the Licensure Verification Form for Womer because Womer is not licensed by it. Womer continues to be licensed to practice chiropractic by the medical board. The Board denied Womer's application on the following grounds: The licensing requirements of Pennsylvania are not substantially similar to, equivalent to, or more stringent than Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation and Pennsylvania does not require passage of Part I and II and the written Clinical Competency Examination of the National Board within the past ten years. Pennsylvania does not have the ten-year requirement regarding passage of the National Boards. In fact, the Clinical Competency Examination only came into existence in 1987 and could not have been taken by anyone prior to that year. On April 14, 1989, the Board acknowledged receipt of Krakow's application for licensure by endorsement and stated that the only document not received was a "valid State Endorsement Questionnaire Form from the State of Pennsylvania." The letter further stated that the Questionnaire had to be received on or before July 1, 1989, in order for Krakow's application to be considered at the next board meeting. The Board received the Questionnaire regarding Krakow on April 17, 1989, and his application was complete on that date. No further timely request from the Board for additional information was received by Krakow. By letter dated June 1, 1989, Krakow requested that his application be considered at the next scheduled board meeting. The Board of Chiropractic first verbally notified Krakow of its intent to deny his application for licensure by endorsement at its meeting in Orlando, Florida, on July 27, 1989, one hundred and one days after receipt by the Board of his complete application. The Board denied Krakow's application on the following grounds: The licensing requirements of Pennsylvania are not substantially similar to, equivalent to, or more stringent that Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation. Subsequent to the denial of licensure to both Womer and Krakow, the Board attempted to raise additional grounds for the denials. Specifically, the Board alleges that licensure should be denied because Pennsylvania does not require a score of 75% on each portion of the state licensure examination, because neither of the Petitioners has passed the National Chiropractic Board Examination, Parts I and II, and the Written Clinical Competency Examination, and because Womer is not a licensed chiropractor in the State of Pennsylvania. However, the Board has not provided adequate notice of these additional alleged grounds for denial and they will not be considered. Except for the licensure requirements discussed herein, Womer and Krakow have satisfied all other requirements for licensure by endorsement. Petitioners offered the testimony of Joseph R. McQuaite, D.C., to show that the licensure requirements in Florida and Pennsylvania are substantially similar. However, Dr. McQuaite was not offered, tendered, or accepted as an expert in comparisons of states' licensure requirements. Accordingly, his opinions are not given weight as expert opinions, but are instead treated only as laymen's opinions. The Board offered David L. Bolton as a witness to show that the examination requirements between Florida and Pennsylvania are not substantially similar. While Bolton's testimony at hearing was not expert, his deposition testimony was stipulated between the parties to be expert testimony on the Florida practical examination. The Florida practical examination tests extensively on x-ray interpretation and physical diagnosis. These portions of the practical examination constitute two of the four sections of the practical examination. Florida considers these two aspects of the examination to be so important that a passing grade of 75% must be made on each section instead of a mere 75% average for the entire practical examination. The Pennsylvania practical examination is solely on chiropractic technique and jurisprudence and does not cover physical diagnosis and x-ray interpretation. Physical diagnosis and x-ray interpretation are covered in Pennsylvania only to the extent that the subjects are covered in the National Board examinations. The Florida practical examination is more thorough and covers more areas than does the Pennsylvania examination. The additional areas covered in Florida, x-ray interpretation and physical diagnosis, are significant and are important. In these respects, the Florida licensure requirements are not substantially similar to those of Pennsylvania. The differences are sufficient to support denial of licensure by endorsement. Petitioners maintain that the Board's denial of licensure by endorsement is impermissibly based on an anti-competitive bias on the part of the entire Board against applicants for licensure by endorsement. The greater weight of the credible, competent and substantial evidence does not support these assertions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Professional Regulation, Board of Chiropractic enter a Final Order and therein issue licenses by endorsement to William O. Womer and Elliott S. Krakow based on Section 120.60(2), Florida Statutes. RECOMMENDED this 9th day of August, 1990, in Tallahassee, Florida. DIANE K. KIESLING, 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 9th day of August, 1990. APPENDIX TO THE RECOMMENDED ORDER, CASE NOS. 90-0580 and 90-0581 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, William O. Womer and Elliott S. Krakow Each of the following proposed finding of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 37 & 38(10). Proposed findings of fact 1-8, 10, 19, 20, 29, 35, and 36 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 9, 11-18, 21-25, 28, and 40 are rejected as being mere summaries of testimony and not properly stated as proposed findings of fact. To the extent that the contents of these proposed findings of fact are reflected in this Recommended Order, the contents are adopted. The remainder is subordinate. Proposed findings of fact 26, 27, 31, 32, 34, and 39 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 30 and 33 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(30; 5 & 6(4); 7-10(5-8); 11 & 12(11 & 12); 14(14); 15(13); 18(15); and 30(10). Proposed findings of fact 3, 21, 28, 29, and 31 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 16, 19, 20, and 22 are irrelevant or unnecessary. Proposed findings of fact 17, 26, and 27 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 23-25 are considered and discussed in the Conclusions of Law in the Recommended Order. COPIES FURNISHED: Lynne Hankins-Fielder Attorney at Law 402 Appelrouth Lane, Suite 10 Key West, Florida 33040 Theresa M. Bender Assistant Attorney General Suite 1603--The Capitol Tallahassee, Florida 32399-1550 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
