Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 13-16, 1992, petitioner, James S. Moore, a chiropractic physician, was a candidate on the chiropractic licensure examination. Doctor Moore is a recent graduate of Life Chiropractic College and was taking the examination for the first time. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Chiropractic (Board). On July 2, 1992, DPR issued a written uniform grade notice advising petitioner that while he had received passing grades on the X-ray interpretation and technique portions of the examination, he had received a score of 70.5 on the physical diagnosis portion of the test. A grade of 75.0 is necessary to pass this part of the examination. By letter dated September 23, 1992, petitioner requested a formal hearing to contest his score. In his letter, Dr. Moore generally contended that he had been denied licensure without any reason or explanation, and that during the review process his contentions were not given meaningful consideration. As further clarified at hearing, petitioner contended that he should have received higher scores on procedures 1, 2, 7, 10, 15, 17 and 18 of the physical diagnosis portion of the examination, and thus he should have received a passing grade. That portion of the test is a practical examination requiring the candidate to give verbal and demonstrative responses to a series of questions designed to test the candidate's diagnostic skills. Among other things, the candidate is required to perform certain tests and procedures on a volunteer patient. To memorialize a candidate's performance, the examination is videotaped, and a copy of petitioner's performance is found in joint exhibit 1 received in evidence. Petitioner generally contends that he should have received a higher grade on the above questions. To support his position, petitioner testified on his own behalf and presented the testimony of his uncle-employer, a chiropractic physician in Jacksonville, Florida, who has seven years experience in the field. Respondent offered the testimony of a Miami chiropractic physician who has been a grader on the examination for the last twelve years and was accepted as an expert in the field of chiropractic. It is noted that both physicians reviewed petitioner's examination prior to giving testimony. However, respondent's expert did not regrade the examination but rather evaluated the questions, petitioner's responses and the grades of the two examiners who graded petitioner to determine if the scores were within acceptable guidelines. As might be expected, the two physicians offered conflicting opinions regarding petitioner's examination scores. In resolving the conflicts in the testimony, the undersigned has accepted the more credible and persuasive testimony, and this testimony is embodied in the findings below. There are two independent chiropractors who grade each candidate on the physical diagnosis part of the examination. Each examiner is given one hour of standardization training prior to the examination, there is no discussion by the examiners during the examination itself, and they grade independently of one another. There is no evidence to support a finding that the two examiners who graded petitioner conferred with each other prior to assigning a grade or otherwise acted improperly in the performance of their duties. In order to preserve the confidentiality of the examination, the questions or information given to a candidate will not be repeated verbatim here but rather only a general description will be given. As to question 1, petitioner was penalized one point (or given a grade of three out of four points) because he stated that the normal range for a particular joint was at 100 degrees. He derived this answer from the American Medical Association Guidelines for Impairment, which is the standard used for disability evaluation. Because impairment standards are not synonymous with a normal range of motion, petitioner's response was incorrect and his score of three should not be changed. In procedure 2, the candidate was given a hypothetical case history of a female patient and was required to choose four appropriate orthopedic tests that related to her condition and to then perform each test. The question noted that if an incorrect test was selected, no credit would be given even if the test was performed correctly. Petitioner selected only two correct tests and accordingly received a grade of two out of four possible points. Respondent's expert confirmed that only two correct answers were selected, and thus petitioner's grade should not be changed. Among other things, procedure 7 required the candidate to use and interpret the Wexler scale, a reflex scale used by chiropractic and orthopedic physicians. Petitioner contended that the Wexler scale is considered zero to five, and he used this range to fashion his answer. Although at hearing respondent asserted that the scale is actually zero to four, it now concedes that petitioner's response was correct and that his grade on this question should be adjusted upward by 1.5 points. Procedure 10 related to diagnostic imaging and generally required the candidate to select the appropriate x-rays to be taken for a given set of facts. Because petitioner failed to take a necessary spot hip x-ray, he did not receive full credit on the question. At hearing, petitioner contended that the omitted x-ray would over-radiate the patient and that the large views taken of the patient would give sufficient detail of the primary complaint area. However, these contentions are rejected as not being credible. Therefore, the request to change the grade on this procedure should be denied. In procedure 15, petitioner was given certain information concerning a patient and was required to make a specific diagnosis to be written in the patient's records. The question also provided that if an incorrect diagnosis was selected, the candidate would receive no credit. In this case, petitioner failed to select the proper diagnosis. His response that the patient suffered from a "sprain/strain" of a particular muscle was incorrect since there is no such thing as a sprain of a muscle. Indeed, only joints and ligaments can be sprained. Although respondent's expert conceded that the correct answer was not "easy" to ascertain, all candidates faced the same level of difficulty on the question and thus no change in petitioner's grade is warranted. Petitioner next contends that he was given an incorrect grade on procedure 17, which required him to identify which physical examination procedures (more than one) he would use based upon a hypothetical patient history. The question provided that unless all procedures were identified, no credit would be given. Because petitioner did not state that he would take the patient's vital signs, a necessary procedure for a new patient, he properly received a zero score. Finally, procedure 18 used the same hypothetical patient history given in procedure 17 and required the candidate to demonstrate on a volunteer patient the necessary examination procedures. Of particular significance was the requirement that the candidate not only correctly perform the procedures, but also demonstrate those procedures in the usual and customary order. Unfortunately, petitioner performed the first of four procedures last, which would affect the reliability of the findings, and thus he received no credit. Therefore, petitioner's grade on this question should not be changed. In summary, with the exception of procedure 7, the scores given to petitioner on each of the challenged procedures are supported by logic and reason, and there is no justification in changing the overall score to a passing grade. In addition, the test was fairly administered in every respect to all candidates, including the provision in some questions that unless the entire question was correctly answered, no partial credit would be given. Thus, petitioner's contention that he should have received partial credit instead of no credit on several questions is without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order raising petitioner's grade on the physical diagnosis part of the May 1992 chiropractic licensure examination from 70.5 to 72.0 but denying his petition in all other respects. DONE and ENTERED this 4th day of January, 1993, at Tallahassee, Florida. DONALD R. ALEXANDER 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 4th day of January, 1993. Respondent: APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6162 1-2. Partially adopted in finding of fact 5. 3-4. Partially adopted in finding of fact 6. Partially adopted in finding of fact 7. Partially adopted in finding of fact 8. Partially adopted in finding of fact 9. Partially adopted in finding of fact 10. Partially adopted in finding of fact 11. NOTE: Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Vytas J. Urba, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Dr. James S. Moore P. O. Box 229 Doctor's Inlet, FL 32030 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0752
The Issue At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." Also at issue is whether, as contended by Respondent, there is "a complete absence of a justiciable issue of either law or fact raised by [Petitioner's claim]" and, therefore, Respondent should be awarded attorney's fees and costs pursuant to Section 57.105, Florida Statutes.
Findings Of Fact Finding related to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Chiropractic (Department), is a state agency charged with the duty and responsibility for regulating the practice of chiropractic pursuant to Section 20.43 and Chapters 455 and 460, Florida Statutes.3 At all times material hereto, Petitioner, Robert Frankl, D.C. (Dr. Frankl), was licensed to practice chiropractic in the State of Florida, having been issued license number CH 0002560. On August 6, 1997, the Department filed a two-count Administrative Complaint against Dr. Frankl (agency case number 94-20261). Count I charged Dr. Frankl violated Subsection 460.413(l)(m), Florida Statutes, by failing to keep written chiropractic records justifying the course of treatment of a patient, including patient histories, examination results, test results, X-rays, diagnosis of a disease, condition or injury. Count II charged Dr. Frankl violated Subsection 460.413(l)(v), Florida Statutes, by violating Rule 59N-17.0065(2), Florida Administrative Code, which requires that adequate patient records be legibly maintained, and that initial and follow-up services (daily notes) shall consist of documentation to justify care. For such violations, the Department proposed that one or more of the following penalties be imposed: . . . suspension of . . . [Dr. Frankl's] license, restriction of . . . [Dr. Frankl's] practice, imposition of an administrative fine, issuance of a reprimand, placement of . . . [Dr. Frankl] on probation, and/or any other relief that the Board [of Chiropractic] deems appropriate. Dr. Frankl disputed the allegations of fact contained in the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing. The matter was assigned DOAH Case No. 97-4109, and a hearing was duly scheduled for December 17, 1997. Shortly prior to hearing, the Department filed a motion to relinquish jurisdiction that was denied by the administrative law judge. Pertinent to this case, the reaction of Dr. Frankl's counsel to the Department's maneuver was memorialized in a letter of November 20, 1997, from Dr. Frankl's counsel to the Department's counsel, as follows: This letter will confirm our telephone conversation of today in which you advised me that the Administrative Law Judge denied the AHCA's Motion to Relinquish Jurisdiction. At this point you are contemplating whether or not to voluntarily dismiss Count I and II of the Administrative Complaint. Thereafter, the AHCA may decide to re-charge Dr. Frankl if the Chiropractic Probable Cause Panel finds cause after re-reviewing this case. In the event that the AHCA recommends that this case be re-presented to the Probable Cause Panel for purposes of re-charging him, please be advised that Dr. Frankl will be prosecuting the AHCA and/or the Chiropractic Probable Cause Panel for attorney's fees especially given the potential dismissal of the pending charges against him. Dr. Frankl is willing to waive his claim for attorney's fees if the AHCA and/or the Panel consider immediate dismissal with prejudice of any and all charges arising out of this matter, including the charges alleged in the investigative report. From the beginning of the Panel's investigation of Dr. Frankl almost two years ago, they would have certainly pursued all potential violations against him for purposes of bringing the subsequent Administrative Complaint. Notwithstanding their investigation of all potential violations against Dr. Frankl, as identified in their investigative report, the AHCA chose only to prosecute two of those charges in the form of a two count Administrative Complaint against him. Certainly at that time counsel for the AHCA would have been aware of all of the charges in the investigative report when they filed the two count Complaint against him. By counsel for the AHCA's own actions in prosecuting only these two charges in the Complaint and not the remainder of the charges in the investigative report proves that the remaining allegations in the report are meritless (even though the AHCA would like to now have these same charges re- presented to the Probable Cause Panel for purposes of potentially re-charging him). Dr. Frankl has had to spend considerable monies, time, costs and attorney's fees in defending this matter. The situation is tantamount to a witch hunt by the Panel to find anything to hang over Dr. Frankl's head. Further, the last minute attempts by the AHCA on the eve of trial, presently set for December 17, 1997, to have the Judge relinquish jurisdiction because they realized the counts were meritless in view of their own experts' reports proves that the Panel and/or the State seek to prolong the process and harass Dr. Frankl and thereby deny him his day-in-court to defend these charges and bring this matter to a final resolution. Subsequently, counsel for the Department and counsel for Dr. Frankl reached an agreement whereby counsel for the Department would recommend to the Board of Chiropractic that the investigation against Dr. Frankl be closed. In exchange, Dr. Frankl, through counsel, agreed, provided the investigation was closed, to waive any action for attorney's fees related to the case. The parties agreement was memorialized in a letter, dated December 19, 1997, from Dr. Frankl's counsel to the Department's counsel, as follows: Pursuant to our telephone conversation of Friday, December 19, 1997 this letter will confirm that upon your recommendation to the Probable Cause Panel of the Board of Chiropractic on Monday, December 22, 1997 at 12:30 p.m. that you will be requesting on behalf of AHCA that the instant investigation in regards to Dr. Frankl be closed (given the Voluntary Dismissal)4[.] Dr. Frankl, in turn, agrees to waive any action for attorneys' fees related to this case so long as the Probable Cause Panel elects to close their investigation against Dr. Frankl on December 19, 1997 (sic) [December 22, 1997] at the hearing. A memorandum of the Probable Cause Panel, Board of Chiropractic, for the Probable Cause Panel meeting of December 22, 1997, notes that the panel resolved that "PROBABLE CAUSE WAS NOT FOUND IN THIS CASE." (Respondent's Exhibit 3.) That finding resulted in the entry of a formal "CLOSING ORDER" on January 16, 1998, which provided: THE COMPLAINT: The Complaint alleges that the Subject is in violation of Section 460.413(l)(m), Florida Statutes, for failing to keep written chiropractic records justifying the course of treatment of the patient. THE FACTS: On or about June 18, 1995, Patients A.M. and J.M. voluntarily withdrew their complaint against the Subject; and stated that no violations occurred. On or about November 7, 1995, an Agency expert opined that the Subject's records on Patients A.M. and J.M. contain "adequate initial history and examination records" and "they seem to correspond with dates of services as are noted in billings." On or about April 3, 1996, probable cause was found that a violation of Section 460.413(l)(m), Florida Statutes, occurred. On or about April 4, 1997, another Agency expert opined "that legible written chiropractic records were kept on both patients J.M. and A.M. justifying treatment." THE LAW: Based on the foregoing, although probable cause had previously been found by the panel to exist, in light of the foregoing, the case shall be dismissed. It is, therefore, ORDERED that this matter be, and the same is hereby, DISMISSED. Findings relating to Dr. Frankl's claim for attorney's fees and costs under Section 57.111, Florida Statutes Pertinent to Dr. Frankl's claim for attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Frankl prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs would be appropriate provided Dr. Frankl can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust. Addressing first Dr. Frankl's status, the proof demonstrates that at the time the underlying proceeding was initiated, and at all other times material hereto, Dr. Frankl practiced chiropractic through a professional service corporation, as authorized by Chapter 621, Florida Statutes. The principal (sole) office of the corporation was located in Hollywood, Florida, and at the time the underlying action was initiated by the Department, the corporation had not more than 25 full-time employees or a net worth of not more than two million dollars. Dr. Frankl was, and continues to be, the sole owner of the corporation. Given the proof, for reasons more fully stated in the Conclusions of Law, Dr. Frankl was not a "small business party," as defined by law, when the underlying proceeding was initiated.5 As for the reasonableness of the attorney's fees and costs claimed, it is observed that, with regard to attorney's fees, Dr. Frankl offered no proof that any attorney time or fee was incurred in the underlying proceeding. Consequently, there is no record basis upon which to assess a reasonable fee. Standard Guarantee Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103 (Fla. 3d DCA 1994). With regard to costs, Dr. Frankl did offer testimony that, at the attorney's request, he provided his attorney in the underlying case with four copies of his office file at a cost of $118. There was, however, no showing as to why the documents were requested (their need), and, therefore, no showing that the costs were necessarily incurred. Fundamentally, copying costs are generally not recoverable, and there was no showing in the instant case that Dr. Frankl's claim met any recognized exception.6 Florida Rules of Court, Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Findings relating to the Department's claim for attorney's fees and costs under Section 57.105, Florida Statutes Pertinent to the Department's claim for attorney's fees and costs under Section 57.105, Florida Statutes, the Department claims that there was a complete absence of any justiciable issue of law or fact to support Dr. Frankl's claim or application for an award of attorney's fees and costs under Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." The gravamen of the Department's position is its contention that, as evidenced by the letter (of December 19, 1997) from Dr. Frankl's counsel, he waived any claim for attorney's fees and costs when the Probable Cause Panel of the Board of Chiropractic closed their investigation (dismissed the case). In contrast, Dr. Frankl contends that there was never an agreement to waive costs. As for the waiver of attorney's fees, Dr. Frankl contended: . . . It is not clear whether the probable cause panel meeting at which the referenced case was reconsidered and closed was held on December 22, 1997. The minutes of the meeting reference both "December 22, 1997" and "Tuesday, December 23, 1997". The tape recording of the referenced reconsideration maintained by the Board of Chiropractic does not reference a date upon which the meeting was held. Dr. Frankl agrees that if the panel voted to close the case on December 22, 1997, he has agreed to waive attorney fees.7 (Emphasis in original.) Addressing first the issue of attorney's fees, the only proof of record reflects that, at the Probable Cause Panel meeting of December 22, 1997, the Panel voted no probable cause or, stated differently, to close the case. Consequently, by the terms of their agreement, Dr. Frankl waived any claim for attorney's fees. Moreover, whether the Panel had voted on December 23, 1997, as opposed to December 22, 1997, to close the case is immaterial or, stated differently, a distinction without a meaningful difference. Consequently, Dr. Frankl's claim for attorney's fees was lacking any justiciable issue of law or fact. While Dr. Frankl's claim lacked merit with regard to his claim for attorney's fees, the same cannot be said for his claim for costs. In this regard, it is observed that while the Department alleged the waiver was for attorney's fees and costs, the parties agreement (as evidenced by the letter of December 19, 1997) states otherwise, and the Department offered no proof that the parties intent was other than that evident from the express language of the parties' agreement. Given the foregoing, it must be concluded that the Department failed to demonstrate that Dr. Frankl's claim was entirely without merit. More importantly, for reasons appearing in the Conclusions of Law, the Department was not, as a matter of law, entitled to attorney's fees under the provisions of Section 57.105, Florida Statutes. Finally, like Dr. Frankl, the Department failed to present competent proof to demonstrate what attorney's fees, if any, were necessarily and reasonably incurred.8
The Issue Whether Petitioner is entitled to receive a passing score on the Physical Diagnosis portion of the November 2000 chiropractic licensure examination.
Findings Of Fact petitioner is currently licensed to practice chiropractic medicine in four states. Some of his licenses are voluntarily inactive. He is a graduate of Life University, School of Chiropractic, in Georgia. From 1992 to 1999, he taught classes in Clinical and Orthopedic Diagnosis and other clinical classes at that institution, and his final position was Director of Admissions. He currently maintains a chiropractic practice in Georgia. In November 2000, Petitioner took the Florida chiropractic licensure examination. By a January 12, 2001, examination grade report the Department notified Petitioner that he had failed the Physical Diagnosis portion of the licensure examination. The minimum passing score for the Physical Diagnosis portion was 75.00. Petitioner had scored 72.00. As such, Petitioner had failed that portion. The November 2000 chiropractic licensure examination consisted of four portions: Laws and Rules; X:-ray Interpretation; Physical Diagnosis; and Technique. Pursuant to Rule 64B2-11.003, Florida Administrative Code, candidates are required to pass all four portions of the examination. Accordingly, Petitioner's failure of only one portion resulted in his failing the examination. At the disputed-fact hearing, Petitioner narrowed his challenge of disputed questions to Tasks 6 and 7 of the Physical Diagnosis portion of the examination. Petitioner withdrew his challenge to any other portions. Therefore, to pass the entire examination, Petitioner would have to prove entitlement to three points on these two tasks. Task 6 is worth three points. Task 7 is worth two points. Petitioner contended that Tasks 6 and 7 were not worded so as to call for a precise response; that the examination questions related to those tasks were subject to different, but equally correct, assessments or clinical judgments than those approved by the Department, and that he had given equally correct assessments/clinical judgments as his examination answers; and that the scoring of the examination was flawed. Prior to the examination, candidates were provided with a Candidate Information Booklet (CIB). This preparatory booklet explains what the examination will be like, explains how it is scored, and states: The references listed below may be used to prepare for the examination. This list is not considered to be all-inclusive. Following this statement is a list of professional texts divided into categories of "Acupuncture," "Physical Diagnosis," "Technique," and "X-ray Interpretation of Chiropractic and Pathology Films." The Physical Diagnosis portion of the November 2000 chiropractic licensure examination is a practical examination which tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical patient's case history. The case history for the Physical Diagnosis portion is followed by a series of related questions. For this examination, Task 1, the case history, was related to Tasks 6 and 7, because it provided critical information relating to the history of the patient whom Tasks 6 and 7 asked the candidate to evaluate. Task 6 asked the candidate to respond to the question, "What laboratory tests or diagnostic procedures, if any, would assist in the diagnosis?" Petitioner testified that he had taken a "medical" approach to this question, which should be appropriate from the viewpoint of the "Board of Chiropractic Medicine." From Petitioner's viewpoint, Task 6; was vague and the time limitations of the examination did not allow him to go back and review the preceding patient history which might have caused him to answer differently. However, he conceded that even if he had gone back and-re-read the patient history, he probably would have answered the same way. Petitioner also conceded that candidates had the opportunity to write notes on scratch paper and were allowed to refer back to their notes for gathering or taking additional information about the patient history as they progressed through the subsequent examination. tasks/questions. Petitioner answered Task 6 by listing specific laboratory test(s) he felt were warranted, whereas the Department's scan sheet or answer key stated that the correct answer should have been "None." The Department's reviewers concluded that Petitioner's answer meant that he had given laboratory tests when none were required, based on the examination information as a whole. Task 7 asked the candidate to respond to the question, "State your reasoning for choosing these tests." Petitioner's actual answers to Task 7 were not offered at hearing. However, at hearing, Petitioner gave his reasons for ordering laboratory tests as not being satisfied with one diagnosis; because a chiropractor should pursue tests to rule out other conditions in a deductive rather than inductive manner; and because a chiropractor is obligated to make a "differential" diagnosis in every case to determine the etiology of the primary diagnosis, i.e. a tumor, so that he can speak intelligently with other health care professionals, such as a medical physicianoncologist, to whom the chiropractor will refer the patient. Petitioner's additional reasons given at hearing for the laboratory tests he would have administered (Task 6) are those given above in Finding of Fact 7. The Department's approved answer for Task 7 was again negative of any reasons for laboratory tests because, in its answer-book, there should have been no laboratory tests ordered on Task 6. Despite his discounted answers to the challenged questions, Petitioner ultimately reached the correct diagnosis for the patient to whom Tasks 1, 6, and 7 applied. He reached the correct diagnosis after receiving further information on examination tasks subsequent to Tasks 6 and 7, but he still reached the correct diagnosis without running any actual laboratory tests or receiving any hypothetical laboratory test results. At the stage of Tasks 6 and 7, he was told by examiners either that no laboratory test results were available or that all laboratory tests were normal. His reaching the correct diagnosis under these conditions demonstrates that reaching a correct diagnosis without the laboratory tests he ordered certainly was possible. Petitioner testified that in formulating his answers to Tasks 6 and 7, he had relied on a standard text, Differential Diagnosis in Primary Care, Second Edition, R. Douglas Collins, M.D. F.A.C.P.; published by J. B. Lippincott Company, which text had been used to instruct him and from which text Petitioner also had taught his chiropractic students. This text is not listed in the CIB. Petitioner also discussed portions of eight other professional health care texts which he felt supported his answers to Tasks 6 and 7. None of these texts were listed in the CIB. Although the CIB is not "all-inclusive" of generally accepted chiropractic texts, the texts listed. thereon may be presumed to be generally accepted. Texts. not listed thereon do not benefit from the CIB's "imprimitur" of general professional acceptance and reliability. Petitioner only asserted that the texts upon which he relied were used in many (not all) chiropractic schools. The Departments expert in chiropractic, Dr. Scott L. Drizin, testified that of the nine texts utilized by Petitioner, only P-5, Griffith's Five Minute Clinical Consult, by Mark A. Dambro, published by Williams & Wilkins, 1997, pages 628-630, constituted a generally-accepted learned treatise recognized and authoritative for use in the practice of chiropractic medicine for Florida chiropractors, and that P-3 and P-4, also texts relied upon by Petitioner, were so specialized as to rarely, if ever, be used by chiropractors. He did, however, testify that possibly P-2, Mosby's Manual of Diagnostic anal Laboratory Tests, by Kathleen and Timothy Pagana, published by Mosby Publishing Co. 1998, might have limited value to Florida chiropractors. Neither of these texts is listed on the CIB. For purposes of his own testimony, Dr. Drizin relied upon three texts, Bates, Guide to Physical Exam History Taking, (R-15); a 1995 edition of P-5, the Griffith's Five Minute Clinical Consult, which was numbered R-16; and The Merck Manual (R-17), which texts were admitted over Petitioner's objection. Of the texts utilized by Dr. Drizin, only R-15 and R-17 are listed on the CIB and only P-5/R-16 is accepted as authoritative by both Petitioner and by Dr. Drizin. However, Dr. Drizin testified credibly that all three of the texts he had used were generally-accepted as learned treatises recognized and authoritative for use in the practice of chiropractic medicine for Florida chiropractors. It is therefore found that an insufficient predicate was laid to establish that any texts other than P-5/R-16, R-15, and R-17, constituted generally accepted chiropractic texts, sufficiently reliable for making findings of fact.' Dr. Drizin is a Florida-licensed chiropractor. He has practiced in Florida for thirteen years. In addition to his doctorate of chiropractic medicine, he holds a master's degree in biomechanical trauma. He is a member, and has held office in, multiple professional chiropractic associations and has published extensively in his professional field. He is currently a licensing examiner, consultant, and coordinator for the Department. He has testified as an expert on licensing examination challenges approximately 25 times. Accordingly, by education, training, and experience, his testimony has been accorded great weight. Upon the greater weight of the credible evidence as a whole, it is found that Petitioner's responses to Tasks 6 and 7 are incorrect and the Department's answers are correct for the following reasons. Dr. Drizin, and the reliable medical references that support his opinion, established that the principal source of diagnosis information is commonly found in the history of the patient, which was described in detail in examination Task 1. At least two of the texts upon which he relied affirmatively demonstrate that the Department's answers to Tasks 6 and 7 are correct. Dr. Drizin also explained credibly and persuasively that the case progression format from Task 1 through Tasks 6 and 7, and beyond, is designed to eliminate any perception of vagueness by the candidate, so that by the time the candidate has progressed to Task 6, he or she has more than enough information to come up with a correct diagnosis without laboratory tests. The four symptoms provided prior to Task 6 disclosed a classic syndrome, which syndrome is often used in testing physicians for the type of diagnosis sought. The four symptoms are not usually found together in the same patient. Therefore, when all four symptoms are found together in the same patient, it is so unusual that they point to only one diagnosis, without the need for the laboratory tests which Petitioner responded with for Task 6. Also, some of the tests Petitioner ordered would come back as "normal" in early stages of the condition Petitioner was asked to diagnose. Therefore, the laboratory tests that Petitioner would have conducted were neither appropriate nor effective at the early stage of the disease described in Task 1 or the early stage of the examination (Tasks 6 and 7) in the diagnosis process simulated on the examination. Although Dr. Drizin, in effect, conceded that the laboratory tests Petitioner ordered would do no harm and might be peripherally valuable, he found them superfluous in the present era of managed care. He further opined that ordering every test available to rule out all possibilities besides the obvious diagnosis at so early a stage in patient assessment would be inappropriate and would constitute detrimental over-utilization of resources which exploit the patient. Moreover, Petitioner testified that he used P-5, a text on oncology, to rule out a lung abscess, but Dr. Drizin testified credibly that the patient history of no elevated temperature provided on the examination should have ruled, out a lung abcess without the need for the further tests specified in P-5 and in Petitioner's examination answers. Petitioner presented no evidence to support a human or mechanical error in creating or scoring Tasks 6 and 7 of his examination. The Departments past testing experience does not reveal anything "tricky" about Tasks 6 and 7, provided they were approached sequentially from Tasks 1 through 6 (and 7). Several previous chiropractic licensure examinations have used these questions without a high number of failures on those particular questions. Nothing in past testing history has pointed out that these questions are misleading or confusing to a high number of candidates, because a high number of candidates do not miss these questions. Two examiners independently grade each candidate's performance during the Physical Diagnosis portion of the chiropractic licensure examination. Two examiners are used to ensure fairness to the candidate and reliability of the scores. They are selected on the basis of the requirements of Rule 64B2-11.007, Florida Administrative Code. Each examiner must attend a training session for standardization purposes and to reduce subjectivity and/or discrepancies among the examiners approaches. The examiners who graded Petitioner's performance, Examiners 15 and 59, met all qualification anal training prerequisites established by statute and rule. The two examiners agreed 100 percent in scoring Petitioner's responses to Tasks 6 and 7. Both examiners gave Petitioner an °A" score, representing zero points for each task. Upon review, other fully-qualified examiners reached the same conclusion that Petitioner's answers to Tasks 6 and 7 had been correctly scored as earning zero points. These scoring methods were correct.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Health enter a final order denying and dismissing Petitioner's challenge of the score he received on the November 2000 chiropractic licensure examination. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 19th day of July, 2001.
Findings Of Fact Dr. Gans is a chiropractor licensed in Florida on the basis of examination. Dr. Gans prepared and filed an application for examination and licensure with the Florida State Board of Chiropractic Examiners. Dr. Gans answered the question on the application, "Do you have a chiropractic license in any state?" by stating: "Ohio - Mechanotherapy." The Ohio authorities recognized several professions whose functions would be included under the practice of chiropractic in Florida. Mechanotherapy generally would be limited to the practice of manipulation only. Dr. Gans was licensed in Ohio as a mechanotherapist. Dr. Gans answered the question on the application, "Have you ever been refused licensure in any state?" by stating, "No." Dr. Gans had applied for, taken, and failed the Ohio chiropractic examination whereupon he was not issued a license as a chiropractor by the State of Ohio. Dr. Gans was eligible to reapply to take the Ohio examination. At the time of his application to Florida, Dr. Gans had appealed the determination by the Ohio authorities that he had failed the Ohio examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners revoke the license of Ray E. Gans. DONE AND ORDERED this 2nd day of October, 1978 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John R. Sutton, Esquire 250 Bird Road, Suite 310 Coral Gables, Florida 33146 Paul Lambert, Esquire 1311 Executive Center Drive Tallahassee, Florida 32301 C. A. Hartley, Director Florida State Board of Chiropractic Examiners Suite 202, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
Findings Of Fact The Petitioner took the chiropractic licensure practical examination administered in November of 1989 and received a score of 71.2%. The minimum passing score was 75%. The Petitioner needs 1.5 additional raw score points in order to obtain a minimal passing grade. The Petitioner challenged portions of the practical portion of the chiropractic examination. The practical examination includes the areas of x-ray technique, chiropractic technique, and physical diagnosis. Stephen Ordet, D.C., testified on behalf of the Respondent. He was received as an expert in chiropractic medicine (TR, page 117, line 19). He testified that he has been an examiner for the Florida chiropractic practical examination since approximately 1980 (TR, page 102, line 18). The practical portion of the chiropractic examination was administered to the Petitioner by two of several doctors of chiropractic, who were examiners at this examination. The practical examination questions asked the Petitioner were developed by the two examining doctors. The various areas which can be included on the technique examination include cervical, lumbar, thoracic, occipital, pelvic, rib, soft tissue, and extremities. The examiners' questions to the Petitioner did not address the lumbar, occipital or rib areas. Examiner No. 12 gave the Petitioner a score of 4 on cervical, 3 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 1 on extremities. Examiner No. 13 gave the Petitioner a score of 4 on cervical, 3.5 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 2 on extremities. Each portion of the examination has a possibility of 4 points. A candidate must average 3 points fob each question on the examination or a score of 75%. The school which the Petitioner attended is an accredited school. The Petitioner's responses to various questions from the examiners were scored by the examiners under more than one phase of the examination. The Petitioner received a grade of 4 (excellent) from both examiners on the cervical portion of the examination. The Petitioner's expert witness testified that the Petitioner's responses to the questions on the pelvic and thoracic were complete answers. The grades given the Petitioner by one of the examiners were 3.5 and 3, and the grades given by the other examiner were 3 and 3. The grades given are consistent with the petitioner's expert's characterization of her performance. There is no evidence that these questions or grading were arbitrary or capricious. The Petitioner was given an extremities question, and she began an examination of the patient. Thereafter, she advised the examiners that her school had not taught adjustment of the extremities and had not known she would be examined in this area. Additional evidence presented at the bearing shows that extremities were not taught at the Petitioner's school when she attended based upon the school's philosophy relating to spinal adjustment. The two remaining areas addressed in the practical portion of the examination were soft tissue and extremities. Grader 13 scored the Petitioner 2.5 on soft tissue and 2 on extremities. Grader 12 scored the Petitioner 2.5 on soft tissue and 1 on extremities. Dr. Ordet opined that extremity technique as a necessary part of chiropractic medicine (TR, page 100, line 11). He referred to several technique books in chiropractic to support the necessity of extremity technique. The text books included Anatomical Adjustment Techniques by Dr. Homer Beatty. One of the examiners responded that they would move onto another area and gave her a new question referring back to the patient with torticollis. The responses by the Petitioner regarding manipulative relief of the torticollis were not addressed by the Petitioner's witness. There is no basis for concluding that the examiners were clearly erroneous in their evaluation of the Petitioner's response. The Respondent's expert witness revealed that the examination did not place special emphasis on the technique taught at the candidate's particular college.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the extremities question be stricken from the techniques attempted; the Petitioner receive the average of her remaining techniques scores; and receive a passing score on the examination. DONE AND ENTERED this 15th day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3398 Petitioner's Proposed Findings of Fact Adopted and renumbered. Adopted and renumbered. Rejected. The state of the Petitioner's health when this examination was given is conjectural. The Petitioner was given added credit upon a review of her examination; however, one cannot say the examiners were unfair. The testimony about the amount of time for each examination is conflicting. The Petitioner did not clearly establish this point. True but irrelevant. Contrary to the facts. Contrary to the facts. True but irrelevant. Respondent's Proposed Findings of Fact Adopted and rewritten. Not a finding. Not a finding. Adopted and rewritten. Adopted. Adopted in part, rewritten in part, and rejected in part. Adopted first sentence. Adopted. Adopted. COPIES FURNISHED: Ms. Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois Buxbaum 23 Jones Street, #19 New York, NY Vytas J. Urba, Esq. Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 =================================================================
The Issue The issue in this case is whether the Petitioner, Joellen L. Dreyfus, should receive a passing grade on the May 1998 Chiropractic Board Examination.
Findings Of Fact Petitioner, Joellen L. Dreyfus, applied for examination and licensure as a chiropractor and arranged to take the May 1998 Chiropractic Board Examination. She received passing grades on two sections of the examination (Florida Laws and Rules, and X- ray Interpretation) but failing grades in Physical Diagnosis and Technique. During the pendency of this proceeding, it was stipulated that Petitioner should receive a passing grade in Technique, leaving only a failing grade of 74 (with 75 passing) in Physical Diagnosis. Since 75 was passing, Petitioner would pass the examination either if she is given credit for an additional answer, or if a question for which she did not get credit is eliminated. On July 24, 1998, Petitioner telephoned Respondent, the Department of Health, to request that a "review form for Chiropractic" be sent to her address in Dunedin, Florida. On July 30, 1998, Petitioner requested a post-examination review, which provided the same address in Dunedin, Florida. Respondent arranged for the review on September 10, 1998, and attempted to notify Petitioner of the review by letter dated August 21 and postmarked August 25, 1998, and addressed to Petitioner at her address in Dunedin, Florida, certified mail, return receipt requested. Not long after asking for the review, Petitioner moved to Georgia. Petitioner gave the United States Postal Service (USPS) a forwarding address in Cartersville, Georgia, but never notified Respondent of a change of address. When the USPS received Respondent's letter to Petitioner, it placed a postal stamp dated August 30, 1998, on the envelope, bearing the Cartersville address and a request addressed to Petitioner to notify the sender (Respondent) of Petitioner's Cartersville address. The USPS attempted to deliver the letter to Petitioner at the Cartersville, Georgia, address on September 2 and 7, 1998, but could not and had to leave notices for Petitioner to claim the letter. When Petitioner did not claim the letter, the Postal Service "X"-ed out the postal stamp with the Cartersville address and returned the letter to Respondent on September 17, 1998, with a notation that Petitioner had not claimed the letter. The USPS "X"-ed out the postal stamp to signify that the Cartersville address was not a good address. Respondent received the returned letter on September 23, 1998. Because the review notice could not be delivered, Petitioner never received notice. Not having received notice, Petitioner did not appear at the scheduled examination review and was recorded as a "no-show" even though the post office had not yet delivered a return receipt to Respondent. Ten to fifteen percent of the 200 examination reviews a year do not "show." Respondent treats them the same way as it treated Petitioner in this case, which is the same way Respondent treats examination "no-shows." It is not Respondent's practice to attempt to contact either examination or review "no-shows." Petitioner did not re-contact Respondent until August 1999. Initially, Petitioner applied to re-take the Chiropractic Examination in November 1999 but withdrew her application on September 27, 1999, when she realized that her national board part I score expired on December 31, 1998, and her national board scores for parts II and III were going to expire on December 31, 1999. On December 31, 1999, Petitioner attempted to "lock-in" her national board scores but was told that it was too late. When Petitioner realized that there was no way to preserve her national board scores, she renewed her request to review the May 1998 examination. With the assistance of her new attorney, Petitioner persuaded Respondent to agree to an examination review, which was scheduled for February 2000. In its proposed recommended order (PRO), Respondent contended that examination review in February 2000 was "for the sole purpose of preparing for the next examination." (Emphasis in PRO.) Respondent cited no evidence to support this contention, and none is found in the record. Petitioner's examination challenge was filed on March 15, 1998. Respondent also contended in its PRO that Petitioner should be barred from challenging the May 1998 Chiropractic Board Examination under the doctrine of laches. But not only was laches not raised as a defense in the Joint Response to Order of Pre-Hearing Instructions or at any time prior to Respondent's PRO, there was no evidence that the delay in the examination challenge made it difficult for Respondent to defend against the challenge. Petitioner's examination challenge blamed Respondent for the delay in reviewing the May 1998 examination and for the expiration of her national board scores. It also complained of alleged lack of anonymity and erasure marks on the answer key as well as on "the visceral portion of physical diagnosis." It then challenged two specific physiotherapy questions: one dealing with ultrasound (Question 23); and another dealing with cryotherapy (Question 24). As to the ultrasound, Petitioner essentially complained that she should not have been tested on ultrasound because, as a "straight" chiropractor (as opposed to a "mixer"), Petitioner did not use ultrasound in her practice and did not study it in school. As to the cryotherapy, Petitioner also complained that the answer she gave on the examination was correct and should have received credit. Finally, Petitioner challenged the Technique section of the examination (which Respondent eventually conceded). Like Question 23, Question 24 was worth 5 points on the 100-point grading scale for the Physical Diagnosis section of the examination. Question 24 consisted of two parts, A and B, each worth 2.5 points. Question 24 dealt with the use of cryotherapy. Part A required a demonstration, which Petitioner clearly failed. (Petitioner did not challenge part A.) After Petitioner attempted her demonstration, one of the examiners asked a question that approximated but was somewhat different from the actual first subpart of Question 24B. It does not appear from the evidence that Petitioner herself read the first subpart of Question 24B; she clearly did not read the question aloud. But it does not appear that Petitioner was confused by the way in which the examiner asked the first subpart of Question 24B. Petitioner's answer to the first subpart of Question 24B varied from (was more conservative than) the accepted answer for time and length of cryotherapy treatment using ice packs. Petitioner testified that she answered conservatively because the hypothetical patient was 60 years old. Petitioner's proposed, more conservative treatment may be appropriate for 60 year-olds with diabetes, fragile skin and blood vessels, or other hypersensitivity to cold due to aging. But for most other 60 year-olds, normal cryotherapy protocol is not contraindicated. Question 24 was silent as to whether cryotherapy was contraindicated in the hypothetical patient. During the examination, Petitioner did not ask for clarification as to whether cryotherapy was contraindicated. It could not be ascertained from the videotape of the examination whether Petitioner's answer to the first subpart of Question 24B was adjusted to take into account possible contraindications due to age of the hypothetical patient. The authoritative source for the accepted answer (Applied Physiotherapy, Second Edition, by Jaskoviak and Schafer, p. 249) stated: Cold packs are usually applied for 20-30 minutes when maximum effect is to be achieved. After 30 minutes, the packs lose their necessary degree of therapeutic coolness and must be returned to the refrigerated tank. The point of the authoritative source appears to be that cold packs do not remain cold enough for maximum therapeutic effect for longer than 30 minutes, not that cold packs must be used for 30 minutes for maximum therapeutic effect. It also does not rule out more conservative treatment for a 60 year-old, even assuming no contraindications. Respondent's expert testified persuasively that the authoritative source supported and bolstered his independent knowledge from personal education and extensive experience that the accepted answer was correct, not only generally but also in the case of a 60 year-old female with no contraindications. Petitioner's two experts testified to the contrary. But one had virtually no education, training, and experience in physiotherapy, and the other's education, training, and experience in physiotherapy was far less than Respondent's expert. When Petitioner finished her answer to the first subpart of Question 24B, one of the examiners asked a question that approximated but differed significantly from the actual second subpart of Question 24B. The second subpart of Question 24B asked for a listing of physical sensations related to cryotherapy, in sequential order. But the examiner did not initially ask for them in sequential order. The evidence was clear that Petitioner herself did not reread the second subpart of Question 24B; again, she clearly did not read the question aloud. Petitioner began to answer the examiner's question, naming second and fourth sensations in the sequence. As Petitioner paused in her response, one of the examiners told Petitioner that there were four sensations and that Petitioner was required to name all of them in sequential order. The examiner then repeated the sensation mentioned by Petitioner as the first in the sequence. Petitioner continued her response by repeating only the second sensation in the sequence, adding the third sensation in the sequence, and not repeating the fourth sensation in the sequence. Petitioner never named the first sensation in the sequence. At the end of her answer to the second subpart of Question 24B, she commented: "I'm sorry. That's the best I can do. I guess this is why I should have taken physiotherapy." Petitioner argued that the examiner(s) violated the Examiner Manual for the Chiropractic Examination May 1998 (the Examiner Manual) and, in so doing, may have misled Petitioner into thinking that the first sensation mentioned by Petitioner in her answer to the second subpart to Question 24B was the first sensation in the sequence and may have caused Petitioner to omit the actual first sensation in the sequence. The Examiner Manual stated in pertinent part: During the examination If necessary, remind the candidate to read the questions out loud for the video. Do not read the questions to the candidate or ask the candidate for additional information. (Emphasis in original.) We have agreed on the following solutions to possible problems: * * * The answer is incomplete: ask for a complete answer. * * * Avoid Giving Clues DO NOT ask any additional questions, and DO NOT provide any feedback about the correctness of the answers. When the candidate gives a wrong answer, do not ask the candidate to answer it again. You may think you are doing the candidate a favor, but most of the time candidates do not think that way. While the examiner(s) may have misled Petitioner as to the first sensation in the sequence, Petitioner also never gave the last three sensations in proper order. The evidence did not prove that the examiner(s) misled Petitioner in regard to those sensations. In addition, Petitioner more or less conceded to the examiners that she was guessing throughout her attempted answers to Questions 23 and 24. She told the examiners that she had no education in or knowledge of cryotherapy and did not use it in her practice. While correct guesses count as correct answers, Petitioner's admitted guessing supports the finding that she did not answer the second subpart to Question 24B correctly. Petitioner also argued that she should be given partial credit for her answer to the second subpart of Question 24B. But while partial credit was given for a completely correct answer to either subpart of Question 24B, partial credit was not given for a partially correct answer to a subpart. Petitioner did not prove that the it was arbitrary or unreasonable not to give partial credit for a partially correct answer to a subpart. To give Petitioner partial credit for a partially correct answer to a subpart of Question 24B would give Petitioner an unfair advantage over other candidates. Question 23 also was worth 5 points on a 100-point grading scale for the Physical Diagnosis section of the examination. Petitioner clearly did not answer Question 23 on the use of ultrasound as physiotherapy. Petitioner asserted that it was unfair and improper for Respondent to ask questions on physiotherapy on the May 1998 Chiropractic Board Examination because she had no education, training, or experience in it. Petitioner learned "straight" chiropractic at Life University in Georgia and practiced "straight" chiropractic for 12 years in Georgia. "Straight" chiropractic is limited to identification and correction of skeletal subluxations by direct manipulation. It does not use physiotherapy techniques, such as ultrasound and cryotherapy (icing). But, contrary to Petitioner's position in this case, it is found that Petitioner did have the opportunity to study physiotherapy during and after college, but she chose not to. Petitioner also asserted that Respondent gave her inadequate notice that physiotherapy questions would be on the May 1998 Chiropractic Board Examination. The Candidate Information Booklet for the May 1998 Chiropractic Licensure and Certification Examination (the Candidate Information Booklet) advised candidates approximately what areas would be covered in the Physical Diagnosis section of the examination, namely: Orthopedic and Neurological 30-35%; Diagnostic Imaging 20-25%; Case History and Physical 15-20%; Laboratory 5-10%; Diagnosis 15- 20%; and Clinical Judgment 5-10%. But it also included the following statement: Based on the Board of Chiropractic's approval of a proposal made by the Department of Business and Professional Regulation, starting with the May 1998 examination, the Physical Diagnosis portion of the examination will include questions relating to the practice of Physiotherapy. The inclusion of these questions does not alter the percentage of areas to be tested on the Physical Diagnosis portion [of] the examination, as stated in Chapter 64B2 of the Board Rules. The only other evidence as to whether inclusion of the physiotherapy questions (i.e., Questions 23 and 24) caused the percentage of areas to be tested to depart from the approximations in the Candidate booklet or the percentages stated in the pertinent Board rule was the testimony of Respondent's psychometric expert. It was her general understanding that inclusion of the physiotherapy questions did not alter the percentages because: "They are covered all through the exam I believe." But she conceded that her expertise does not extend to examination content, and she could not testify specifically as to how inclusion of the physiotherapy questions affected the percentages in the Candidate Information Booklet and in Chapter 64B2 of the Board Rules. No "content expert" addressed the issue. It is found that the only place where physiotherapy possibly might fit under the Candidate Information Booklet's description of Physical Diagnosis would be under "clinical judgment." If the physiotherapy questions were assigned to "clinical judgment" under Physical Diagnosis, the ten points assigned to those questions would have to be added to the six points assigned to "clinical judgment" on other parts of the Physical Diagnosis examination, for a total of 16 points, which exceeds the maximum percentage in the Candidate Information Booklet. (As reflected in the Conclusion of Law 42, infra, the same holds true for the percentages stated in Chapter 64B2 of the Board Rules.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Department of Health, enter a final order that Petitioner passed the May 1998 Chiropractic Board Examination. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2000. COPIES FURNISHED: E. Renee Alsobrook, Esquire Post Office Box 37094 Tallahassee, Florida 32315-7094 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-0950 Joe Baker, Jr., Executive Director Board of Chiropractic Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
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
The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
