The Issue The issue in this case is whether the Petitioner is entitled to a passing grade on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact The Petitioner took the optometry licensure examination in August of 2000. He received passing scores on three of the four parts of the licensure examination. He received a failing score on the clinical portion of the examination. The Petitioner's score on the clinical portion of the subject examination was 70.50. The minimum passing score is 75.00. The Petitioner contested the scores awarded to him for his performance of procedures itemized on the examination as 2A, 7B, 10A, 22A, 33C, 9A, 18B, and 14B.3 During the course of the hearing, two of the challenged items were resolved without the need for evidence. The Petitioner withdrew his challenge to item 10A. The Respondent stipulated that the Petitioner's performance on item 2A had been incorrectly graded, and agreed that 1.5 points should be added to the Petitioner's grade on the subject examination. On five of the items challenged by the Petitioner, one of the examiners gave the Petitioner credit for successful completion of the procedure and the other examiner did not.4 With regard to these five items, the Petitioner's primary contention is that, if one examiner gave him credit, he should also have received credit from the other examiner. However, given the nature of the manner in which the clinical examination is conducted, different scores by examiners evaluating a candidate's performance are not unusual, and, standing alone, different scores are not indicative of any irregularity in the manner in which the examination was conducted. On the clinical portion of the optometry licensure examination, each candidate is evaluated by two examiners, each of whom grades the candidate's performance of a procedure independently of the other examiner. Further, the examiners are not permitted to confer with each other regarding a candidate's scores. Specific written grading standards have been prepared for each of the procedures candidates are required to perform as part of the clinical portion of the subject examination. These written grading standards are provided to all examiners prior to each examination so that the examiners can review the standards and be prepared to apply them in a fair and even-handed manner. Before serving as an examiner, each proposed examiner goes through a training session. During the training session, each proposed examiner practices scoring the performance of various optometry procedures. Following the practice sessions, the work of each examiner is evaluated to determine whether the examiner is correctly applying the grading standards. If a potential examiner is unable to demonstrate the ability to apply the grading standards, then that examiner is assigned to other duties and is not assigned to grade candidates on the licensure exam. The examiners assigned to grade the Petitioner on the clinical portion of the subject examination all successfully completed the training process and were determined to be acceptable by the Department. The examiners assigned to grade the Petitioner on the clinical portion of the subject examination were all experienced examiners and a statistical analysis of their scoring of all candidates on the subject examination demonstrates that they reliably applied the grading standards. With regard to the procedure required by item 14B, the Petitioner asserts that his ability to demonstrate the required procedure was impaired by the fact that the patient was photophobic. The greater weight of the evidence is otherwise. While the subject examination was in progress, two optometrists examined the patient and determined that the patient was not photophobic. There is no competent substantial evidence of any misconduct by any of the examiners who graded the Petitioner's performance during the subject examination. Similarly, there is no competent substantial evidence that the Department acted arbitrarily or capriciously, or that it abused its discretion. There is no competent substantial evidence that the scoring of the Petitioner's examination performance was flawed, other than the additional 1.5 points that the Department agreed should be given for item 2A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner is not entitled to a passing grade on the clinical section of the optometry licensure examination and dismissing the petition in this case. DONE AND ENTERED this 13th day of September, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 13th day of September, 2001.
The Issue The basic issue in this case concerns the validity of the 1983 Board of Podiatry licensure examination. The Petitioners contend that the examination was invalid for several reasons, and that because of such invalidity, they should be licensed as podiatrists even though they both failed the exam. The Respondent contends that the examination was valid, and that even if invalid, the Petitioners are not entitled to licensure unless and until they receive a passing grade on a licensure examination. Subsequent to the hearing a transcript of the proceedings was filed with the Hearing Officer on July 12, 1985. Pursuant to agreement of counsel, the parties were allowed three weeks from the filing of the transcript within which to file their proposed findings of fact and conclusions of law, which time period was later extended at the request of counsel for the Petitioners. On August 9, 1985, the Petitioners filed a proposed recommended order containing proposed findings of fact and conclusions of law, and the Respondent filed proposed findings of fact and a memorandum of law. The posthearing submissions filed by the parties have been given careful consideration in the preparation of this Recommended Order. Specific rulings on each proposed finding of fact in the posthearing submissions are set forth in the appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. At all times relevant to these proceedings the licensure examination administered by the Board of Podiatry has tested the following nine subject matter areas: anatomy, biochemistry, orthopedic podiatry, surgery; clinical podiatry and differential diagnosis, physiology, materia medica and pharmacology, pathology, and dermatology. At all relevant times the licensure examination has consisted of a total of 360 questions: forty questions on each of the nine subject matter areas covered by the examination. At all relevant times an overall average of seventy-five per cent (75 percent) has been required to achieve a passing score for the examination. An additional proviso at all relevant times is that a passing grade will not be given to any person who fails to achieve a minimum grade of fifty per cent (50 percent) in any one of the nine subject areas. The Petitioners Dr. Pascual Estevez and Dr. Victor Verjano, took the Board of Podiatry licensure examination in each of the following years: 1982, 1983, 1984. Both Petitioners failed all three exams. 1/ Dr. Estevez' scores on the 1982 and 1983 examinations were as follows: SUBJECT 1982 SCORE 1983 SCORE anatomy 30.0 percent 42.5 percent biochemistry 50.0 percent 60.0 percent orthopedic podiatry 45.0 percent 27.5 percent surgery 47.5 percent 50.0 percent clinical podiatry and differential diagnosis 32.5 percent 35.0 percent physiology 37.5 percent 40.0 percent materia medica and pharmacology 25.0 percent 45.0 percent pathology 40.0 percent 52.5 percent dermatology 45.0 percent 60.0 percent OVERALL AVERAGE 39.17 percent 45.8 percent Dr. Verjano's scores on the 1982 and 1983 examinations were as follows: SUBJECT 1982 SCORE 1983 SCORE anatomy 17.5 percent 37.5 percent biochemistry 40.0 percent 57.5 percent orthopedic podiatry 30.0 percent 30.0 percent surgery 27.5 percent 47.5 percent clinical podiatry and differential diagnosis 35.0 percent 27.5 percent physiology 22.5 percent 37.5 percent materia medica and pharmacology 20.0 percent 35.0 percent pathology 30.0 percent 55.0 percent dermatology 37.5 percent 57.5 percent OVERALL AVERAGE 28.89 percent 42.7 percent The 1983 Board of Podiatry licensure examination was the first podiatry examination that used questions solicited from professors of podiatry at several colleges of podiatry outside the state of Florida. The Board could not obtain questions from professors of podiatry within the state of Florida because there are no colleges of podiatry in this state. The Board preferred to avoid soliciting questions from podiatrists practicing in this state so that there would not be any local knowledge of the examination content readily available within the state. The decision to obtain a new pool of questions from professors of podiatry was a result of the opinion of the Board of Podiatry that the level of difficulty of previous examinations probably tested less than minimum competency. The Board felt that questions should be of a higher difficulty level than had been used on previous examinations because they were concerned that incompetent people were managing to "sneak through." When the Office of Examination Services wrote to the college professors to request that they prepare questions to be used on the examination, the letters to the professors included the following information with respect to the level of difficulty the Board preferred: For our purposes, the content tested by an item should be clearly pertinent to the mainstream practice of podiatry and ideally of a difficulty level such that you would expect most of the upper third of a graduating class to answer correctly while the majority of the lower third would find the item to be quite difficult. As regards to the difficulty level, the Board would prefer that in departing from the ideal you tend to favor higher difficulty levels. The college professors who prepared questions for the 1983 Board of Podiatry licensure examination did not all follow the guidelines quoted immediately above. Some of them wrote questions which in the opinion of the Board were too easy. The questions for the 1983 Board of Podiatry licensure examination were derived from three sources: those submitted under contract by selected professional faculty members at colleges of podiatry in California, Iowa, and Pennsylvania (approximately 50 percent of the questions), those prepared by the five professional members of the Podiatry Board (about 25 percent), and items selected by the developer from the item bank (about 25 percent). The latter were specifically selected for high discrimination between passing and failing candidates on a previous exam. This group of 89 test items was used to estimate the relative capability of the 1983 candidates. The remaining test items were selected by the professional members of the Board from the 337 items submitted by consultants and those contributed by the Board members themselves. Each question that was used on the 1983 Board of Podiatry licensure examination was submitted to the Board for review before being included on the examination. The Board reviewed and considered every question submitted and selected only those they felt were adequate to test the candidates' competency. They rejected questions which were too hard as well as those which were too easy. Following the administration of the 1983 Board of Podiatry licensure examination, each answer sheet was scored and a complete item analysis was generated for review by the examination development team. All items which were passed by 50 per cent or fewer of the candidates were scrutinized. Additional scrutiny was also given to items which displayed negative discrimination indices, i.e., those items passed by a greater proportion of low scoring examinees than high scoring examinees. A total of 109 items were identified for review by the Board. At its meeting on August 6, 1983, the Board determined that three items had been mis-keyed and that 39 items merited credit for all responses because of various defects. There remained a large number of questions which were of questionable validity because of the low percentage of upper half candidates who answered them correctly. A second review was conducted following submission of objections filed by candidates. Five additional examination items were credited for all responses and two were double keyed. Following the foregoing actions, a final psychometric review was conducted by the Office of Examination Services and 15 additional items were credited for all responses on statistical grounds. As originally administered and scored, the 1983 Board of Podiatry licensure examination was of a difficulty level that tested for greater than minimum competency and was substantially more difficult than the examination that had been given in 1982. However, with the adjustments described above in paragraph 11 of these findings of fact, the difficulty level of the 1983 examination was substantially the same as the difficulty level of the 1982 examination. As adjusted, the difficulty level of the 1983 examination was such that it tested for minimum competency or perhaps less than minimum competency. As adjusted, the difficulty level of the 1983 Board of Podiatry examination was such that it did not test for greater than minimum competency. The effect of the adjustments described above was to delete from the examination the initial bias of the examination toward the more difficult items. As adjusted, the percentage of candidates who passed the 1983 examination was 50.4 percent, which compares favorably with the 51.1 percent pass rate for 1982. Following the final Board review which credited all of the items described above in paragraph 11 of these findings of fact, several members of the Board of Podiatry, including its chairman, Dr. Owen P. Macken felt that although the examination was a valid measurement of minimal competency as initially given, once it was "watered down" by the removal of so many items it became an invalid measurement because the Department had given credit for too many questions. A total of 117 candidates took the 1983 Board of Podiatry licensure examination. As finally scored, fifty-nine of those candidates passed the examination. Expressed as a percentage, 50.4 percent of those who took the 1983 examination received a passing grade. Out of the total of 117 candidates who took the 1983 examination; the score of Dr. Verjano was; at best, 113th from the top, and perhaps as low as 116th from the top. The 1983 score of Dr. Estevez was, at best 110th from the top, and perhaps as low as 112th from the top. Compared from the other end of the scale, Dr. Verjano had perhaps the second worst grade of all 117 who took the 1983 examination and had no better than the fifth worst grade of all who took the examination. Dr. Estevez had perhaps the sixth worst grade of all 117 who took the 1983 examination and had no better than the eighth worst grade. 2/ As demonstrated by the "anchor questions," the candidates for examination who took the 1983 Board of Podiatry Licensure examination had characteristics very similar to the characteristics of the candidates who took the 1982 examination. In view of this similarity of the two groups of candidates who took the 1983 and the 1982 examinations, the fact that their success rate was very similar indicates that the difficulty level of the two examinations (as finally adjusted) was very similar. Accordingly, a candidate who passed one examination would probably have passed the other examination, and a candidate who made a very poor grade on one examination would probably have made a very poor grade on the other examination. The Board of Podiatry is composed of two lay members and five professional members. Each of the professional members is a licensed Florida podiatrist currently engaged in the active practice of podiatry in the state of Florida. The function of the Board differs from that of the Department of Professional Regulation. The Board is charged with determining the content of the examination questions so as to ensure that every podiatrist practicing in the state meets minimum requirements of safe practice and that podiatrists who fall below such minimum competency or who otherwise present a danger to the public health would be prohibited from practicing in the state. The Board also determines the general areas to be tested and the score that shall be necessary evidence of passing the examination. The Department's function through its examination development specialists is to ensure that the test items or questions are functioning as they were intended and to advise the Board as to the worth of the individual items. Although a national podiatry examination is available, the Board of Podiatry has chosen not to use it. This appears to be due in part to the differences from state to state in the lawful scope of the practice of podiatry, some states limiting the practice to the foot while in Florida the scope of practice extends up to the knee.
Recommendation On the basis of all the foregoing it is recommended that the Board of Podiatry enter a Final Order concluding that the Petitioners have failed the 1983 examination and denying the Petitioners' applications for licensure on the basis of their having failed the 1983 examination. DONE AND ORDERED this 1st day of November, 1985, at Tallahassee Florida. MICHAEL M. PARRISH, 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 1st day of November, 1985.
Findings Of Fact David R. Ness, Petitioner, attended Southern College of Optometry in Memphis, Tennessee, and graduated in May 1990. Part of his training included a three-month externship with James C. Lanier, O.D., an optometrist practicing in Jacksonville, Florida. Dr. Lanier found him a very competent student, thorough in his fact finding and case histories; and satisfactory, if not above average, in his examination of the patients. Dr. Lanier did not participate in the grading of the examination in issue and has no personal knowledge of Petitioner's performance on the examination. Petitioner sat for the September 1990 Optometry licensure examination. He passed the certification portion of the examination and the laws and rules section; he failed the pharm./ocular portion and the clinical portion. After several challenges to the examination, the Board adjusted some scores, but Petitioner's scores in the pharm./ocular section and the clinical sections were still below passing. Written Examination The pharmacology/ocular written portion of the examination consists of a series of case histories, with five questions directed to each. Petitioner explained that he challenged his score on the following specific questions: History #1, question #4; History #5; question #23; History #7, questions #32-35; and History #10, question #48. Case history #1 describes a 19-year old female soft contact lens wearer with symptoms correctly identified by Petitioner as Giant Papillary Conjunctivitis. The patient relies on her contact lenses because she is an actress. The severity of her condition is 3+ on a scale of 1-4, with four being the most severe. Question #4 requires selection from six choices of the initial management course of choice. Petitioner chose "c", Pred Forte suspension, every two hours. Pred Forte is the strongest commercially available steroid and its application every two hours is reserved for very severe cases. While the condition described is moderate to severe, the better answer is "f", "switch to preservative free system, enzyme cleaning 1 time a week". The patient's cleaning solution, described in the case history, is an old solution with a preservative which is known to cause conjunctivitis. While the safest course would be to discontinue contact lens wear, this is a radical option for a patient who must wear the lenses for her work. The preferred course then is to change the solution to see if the condition improves before moving to a less conservative treatment such as Pred Forte. Case history #5 describes symptoms and includes a color photograph of the eye in issue. Petitioner correctly identified the differential diagnosis as "Essential Iris Atrophy" and "Reiger's Anomaly". The next question, #23, states that the fellow eye shows similar findings in a slit lamp examination, and asks which of the differential diagnoses is the final diagnosis. Petitioner selected "Essential Iris Atrophy". The correct answer is "Reiger's anomaly". Essential Iris Atrophy is almost always unilateral and Reiger's is bilateral. The question required the examinee to know this distinction. Case history #7, describes a 37-year old patient with alleged recent vision field loss which occurred after thoracic surgery. The history describes an examination in which the patient remarks that he "isn't going to sue the physician" and where, with coaxing, his vision is much better than he admits. The patient also presented summary results of carotid artery testing and CT studies, which were normal. In his answers to questions 32-35, Petitioner chose diagnoses and treatment based on his conviction that he should try to help anyone who would come to him. He missed the fact that the patient described in the case history is a malingerer who likely is trying to sue his surgeon, and who requires no treatment. Case history #10 describes a 68-year old patient who is being examined for fitting of an extended wear contact lens. The best corrected vision is 20/50 OD, with or without a contact lens. The examination question includes two photographs, one of the fundus examination, the other of a fluorescein angiogram. An angiogram is obtained by injecting dye in the forearm and taking pictures with a special filter as the dye circulates through the blood vessels within the eye. This process is able to reveal abnormalities in the eye. Petitioner missed the question relating to the final diagnosis, which should have been "age-related macular degeneration with secondary choroidal neovascular membrane". Final diagnosis relied, in part, on the fluorescein angiogram. While Petitioner is not arguing that his answer is correct, he contends that the question itself is invalid, because it depends on a process which optometrists are not licensed to perform and it was too technical for recent graduates. People coming out of school have been exposed to live patients and have seen fluorescein angiograms performed and have seen their photographs. Moreover, in Florida, the number of elderly patients makes it necessary that optometrists be proficient in diagnosing age-related macular degeneration. The Practical/Clinical Examination Section 1 of the clinical portion of the practical examination involves the two examiners' review of the examinee's performance of an actual eye examination of a live patient. The two examiners are briefed extensively prior to the examination as to what to look for, but they do not confer during the examination when scoring various functions. For this reason, there may be disagreement between the two examiners. The scores are averaged. On section 1, item #6, with regard to the patient's case history, "follow-up information", the point spread is 0-7, with points being subtracted for failure to follow up on certain information. One examiner gave Petitioner the maximum number of points for the entire case history section. The other examiner gave Petitioner a "no" (0 points) under "personal ocular history", and commented on the examination score sheet that the examinee did not ask ocular history. The same examiner took off 2 points on item #6, "follow-up information" and commented, "did not ask ocular history". At some point during Petitioner's initial challenge, he was given credit for item #3, because it was determined that he did obtain an ocular history. The additional points were not restored to item #6, but should have been; as the failure to obtain that history is the basis for the reduced score. The examiner was not present at hearing to explain any other basis. Section 2 of the clinical portion of the practical examination requires the examinee to perform a series of functions under the scrutiny of two examiners (not the same two as in section 1). Again, the scores are awarded without consultation and there are discrepancies. In each area the examiner marks "yes" or "no" as to whether the procedure is properly performed. A "no" must be supported with the examiner's comment. Two yes marks entitle the examinee to 2 points; a yes/no is worth one point; and two no's are scored zero. For each function, the examinee must demonstrate twice. That is, he says "ready", and the first examinee views the result, then he prepares again and signals, "ready", for the second examiner. For section 2, the candidate is performing techniques or functions on his own patient, a patient whom he brings to the examination and with whom he is familiar. Petitioner is challenging the grading method for Section 2. In 6 out of 16 techniques or functions, the two examinees disagreed; that is, one gave a "yes", and the other, a "no". Petitioner contends that he should get full credit anytime he got one "yes", since that indicates that two people, the examinee and one examiner, agree. There are several reasons why two examiners may disagree on whether the examinee performed a function or technique properly. In some instances one examiner may give the individual the benefit of the doubt; in other cases the patient might move or blink or the examinee might lose his focus. The fact that two examiners independently assess the results gives the examinee two chances to demonstrate his skill. The third section of the clinical examination requires an examination of a live patient where the refractive error of the patient's vision is determined, and a prescription is made. Before being presented to the examinee, the patient is examined independently by three licensed optometrists serving as "monitors". Their examinations give the refraction results against which the examinee's results are compared. Their examinations also determine whether the patient is suitable; that is, the eye must be refracted correctable to 20/20 and the other eye correctable to 20/50. A fourth monitor reviews the results before the patient is presented to the examinee. In this case the patient was examined by the monitors and was found acceptable. Petitioner had problems with the patient; the best he could read was the 20/25 line. Petitioner felt that the patient should have been disqualified and commented in writing on that at the end of his examination, as was appropriate. The comments were reviewed by Dr. Attaway, who considered that the patient had met the criteria when examined by the monitors. Petitioner's refractions varied significantly from the monitors' refractions, which also varied somewhat from each other. Petitioner received a score of 3, out of possible 20, on this portion of the examination. Dr. Attaway did not, himself, examine the patient and the monitors who performed the examinations were not present to testify. The only evidence to rebut Petitioner's findings was the written report of the monitors. Pass Rate for the Examination Out of 130 candidates, approximately 34 percent passed all parts of the September optometry examination. In 1986, 51 percent passed; in 1987, 33.5 percent passed; in 1988, 59.6 percent passed; and in 1989, 52 percent passed. These figures do not, alone, establish that the test is too technical or unfair, nor does the fact that very good students failed. When the examinations are evaluated, when the examinee's performance is rated, there is no established pass rate; the monitors have no idea how close the individual examinee is to passing, either originally or when a challenge is being addressed. Petitioner was a very articulate and candid witness. His two experts were clearly knowledgeable and were sincerely concerned that he should be licensed. None had the experience of Respondent's witnesses, also well-qualified licensed optometrists, in working with the examination. With the exception of the inconsistent score on Section 1, item #6, Petitioner failed to prove that he is entitled to a higher score on any portion of the examination, or that the examination itself was invalid or unfair.
Recommendation Based on the foregoing, it is hereby, recommended that Petitioner's final score on Section 1 of the clinical examination be adjusted to reflect full credit for Item #6; that he be permitted to retake Section 3 of the clinical examination; and that his remaining challenges to the examination be denied. RECOMMENDED this 29th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0700 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings 1.-2. Adopted in paragraph 2. 3. Adopted in substance in paragraph 20. 4.-6. Rejected as irrelevant. Adopted in summary in paragraph 2. Rejected as contrary to the evidence. Finding of Fact #15 reflects the grades after adjustment. Rejected as unnecessary. Adopted in paragraph 1. Rejected as unnecessary. Rejected as irrelevant. This fact does not make the examination invalid so long as it fairly evaluates the qualification of the applicant. 13.-14. Rejected as statements of statutory language rather than findings of fact. Respondent's Proposed Findings The Hearing Officer is unable to find where in the record the exact final score of Petitioner is reflected. Adopted in paragraph 1. Rejected as restatement of testimony rather than findings of fact. 4.-5. Rejected as unnecessary. 6.-15. Rejected as restatement of testimony; summary statements, or argument, rather than findings of fact. COPIES FURNISHED: David R. Ness 611 Poinsettia Avenue Titusville, FL 32780 Vytas J. Urba, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Patricia Guilford, Exec. Director Dept. of Professional Regulation Board of Optometry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue The issue for consideration in this hearing was whether Petitioner should be granted additional credit for one or more of questions number 41, 44, 70, or 72 of the National Council for the Certification of Acupuncture, (NCCA), multiple choice examination administered on May 18, 1991.
Findings Of Fact Petitioner, Aaron Benjamin sat for the May 18, 1991 NCCA acupuncture certification examination administered by the Department of Professional Regulation and achieved a passing score on the clean needle technique portion of the examination. However, he received a score of 69 on the written portion of the examination for which a score of no less than 70 was passing. Thereafter, Petitioner challenged four of the written questions on the exam; questions number 41, 44, 70 and 72, alleging that in each case, the question was worded in such a manner as to allow for more than one correct response and that his response, different from the accepted response, was also correct. This allegation was made notwithstanding the written examination instruction that there was "one and only one correct choice for each question." In his challenge, Petitioner also asserted that the examination instructions provided by the NCCA did not limit the textbooks which might be used for preparation for the examination. He claimed that many of these texts encompassed different philosophies of traditional Chinese acupuncture. By the same token, he alleged, the NCCA also did not specify which school of acupuncture should be referenced when answering the challenged questions. There are numerous different acupuncture texts available for reference which are written through different schools of acupuncture and which represent the differing philosophies of acupuncture practitioners. Utilization of differing schools and differing philosophies could affect an examinee's answer choice. Petitioner also asserted as a defect in the examination process the fact that he received his copy of the examination preparation booklet only two weeks prior to the examination rather than the 30 days which should have been provided. He raised these complaints to officials of both the Board of Acupuncture and the NCCA without success. Question 41 in issue reads: If a patient comes to you with a swollen puffy face and complains of scanty urination, which of the Zang-Fu would you first suspect to be disordered? Lung Kidney Spleen Urinary Bladder Petitioner answered this question with "3 - Spleen" while the Department's answer was "1 - Lung." He claims the question does not specify whether the diagnosis of the patient's condition should be from the beginning of the condition or at the time of examination. He asserts, however, that the spleen is an organ with which this condition may be associated since the accumulation of fluid in the interiors causing edema (swelling) is a syndrome of the spleen and incontinence of the urine also relate to that organ. On the other hand, as indicated by the Department's expert, the lung dominates the vital functions of the entire body and greatly influences all its functional activities. It controls and disperses all fluid in the system. The accumulation of water in a patient with a puffy face and scanty urination, therefore, comes from the lung which is responsible for dispersion of water which might, originate from the spleen. Consequently, "Lung" is the correct answer. Question 44 in issue reads: Bouts of dizziness that continue when a patient lies down are attributed to: deficiency excess heat cold Petitioner answered this question with "1 - deficiency", claiming that either excess or deficiency could result in a patient remaining dizzy after lying down. He asserts the wording on the examination question does not provide sufficient information regarding the syndrome to allow the examinee to differentiate whether an excess or deficiency syndrome resulted in the patient's condition. He claims that if an individual suffered from a deficiency syndrome, and the body energy did not stabilize after the patient reclined, the dizziness would continue. The Department's expert notes that the correct answer is "2 - excess" because in a deficiency syndrome, the vital energy, when one lays down, will come back. With an excess, however, even if one lays down, the excess will not go away. Dr. Celpa admits, however, that in western medicine, Petitioner's answer would be correct. However, in traditional Chinese medicine, which deals in philosophy (theory), one has to accept the specifics given by the Chinese. The correct answer, for the purposes of this examination is, therefore, "2 - excess." Question 70 in issue reads: A tight and forceful pulse could indicate: Damp of the Spleen and Stomach. hyperactivity of the Yang of the Heart. penetration of Cold into Liver Channel. Yin deficiency of the Heart. Petitioner answered "1 - Damp of the Spleen and Stomach, while the Department's correct answer was "3 - penetration of Cold into the Liver Channel." He notes that cold is indicated by a slow pulse and penetration of cold into the liver channel is indicated by a deep, wiry and slow pulse. A forceful pulse, he claims, can sometimes mean an accumulation of dampness in the spleen and stomach not allowing the body to metabolize food for distribution to other organs. If one has damp one has an accumulation. Petitioner answered as he did because of the study guide definitions. The study guide directs the examinees to use its definitions and there was no word for forceful included therein. Dr. Celpa, on the other hand, contends "a penetration of cold in the lower channel" is the correct answer as asserted by the NCCA. Most written authorities on the subject indicate that a tight and forceful pulse relates to the liver. Included in these authorities are The Web That has No Weaver; Fundamentals of Chinese Medicine; Acumoxa; and Pulse Diagnosis. Therefore, he concludes that cold in the liver is the closest answer. He asserts, contrary to claims of the Petitioner, that the definition page contained in the examination packet contains all one needs to take the examination. The packet is put together by the Board of Acupuncture and directs definitions outlined in The Web That has No Weaver be used. This gives little room for error. Nonetheless, he admits this question should have more information available in it to assist the examinee and is a poor question. Question 72 in issue reads: Which of the following will cause a foul or offensive smell of the discharge or excretion? Damp disorder combined with Cold. Damp disorder without Cold. Heat disorder of the Xu (deficiency) type. Heat disorder of the Shi (excess) type. Petitioner's answer to this question was "1 - Damp disorder combined with Cold", and the correct answer, as indicated by the Respondent was "4 - Heat disorder of the Shi (excess) type." Petitioner's answer was based on the statement in Traditional Chinese Medicine to the effect that where there is damp there is odor. There is no reference therein to damp heat, so, looking at the remainder of the authoritative statement, he concluded that dampness is associated with odor. On the other hand, Dr. Celpa indicated Petitioner's answer is wrong because damp is not necessary for odor. The heat disorder is the primary one giving an offensive odor. The Shi type adds to it. While damp could have a foul odor, the heat (Shi (excess)) is the only one which gives the discharge. All of the possible answers show something wrong, but the association of heat and excess best meets the test. Consequently, Petitioner's answer could not be correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Board of Acupuncture denying Petitioner's request for additional credit. RECOMMENDED this 28th day of September, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 28th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-926 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted as an accurate description of the thrust of Petitioner's complaint. Accepted. Accepted and incorporated herein. Accepted as Petitioner's justification for his answer but rejected as appropriate authority. Accepted as an accurate description of Petitioner's answer and the correct answer, and as Petitioner's justification for his answer, but rejected as appropriate authority. Accepted and incorporated herein. Accepted as an accurate description of Petitioner's justification for his answer and as a restatement of Respondent's position, but rejected as appropriate authority. Accepted and incorporated herein Accepted as Petitioner's justification for his answer but rejected as appropriate authority. FOR THE RESPONDENT: 1. - 11. Accepted and incorporated herein. COPIES FURNISHED: Arthur J. Springer, Esquire 215 Verne Street, Suite A Tampa, Florida 33601 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Acupuncture 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioners have alleged facts sufficient to prove their standing to challenge the Respondent's proposed amendment to Rule 21-18.002, Florida Administrative Code?
Findings Of Fact The Florida Society of Opthalmology, Inc., Emanuel Newmark, M.D. and Waite S. Kirkconnell, M.D)., filed a Petition to Determine The Invalidity of a Rule (hereinaffter referred to as the "Petition"), with the Division of Administrative Hearing on May 29, 1990. In the Petition the Petitioners challenged the validity of a proposed amendment to Rule 21-18.002, Florida Administrative Code (hereinafter referred to as the "Rule Amendment"). The Rule Amendment was filed with the Secretary of State on March 3, 1990, with the Rule Amendment to take effect on May 7, 1990. The Rule Amendment allows licensed, certified optometrists to administer and prescribe certain Steroids and certain Steroid/Sulfonamide combinations. It is alleged in the Petition that the Petitioner, Florida Society of Ophthalmology, Inc. (hereinafter referred to as "FSO"), is: a Florida not-for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians, specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of Florida ophthalmologists, improve quality of health care administered to the public, and to educate the public to its needs for adequate health care. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. Pages 1 and 2 of the Petition. The following allegations concerning Dr. Newmark and Dr. Kirkconnell are included in the Petition: That Petitioner, DR. NEWMARK, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. NEWMARK maintains an office for the practice of medicine in Atlantis, Florida. Petitioner, DR KIRKCONNELL, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. KIRKCONNELL maintains an office for the practice of medicine in Tampa, Florida. Both physicians specialize in the field of ophthalmic medicine or ophthalmology. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. 3. That Petitioners DR. NEWMARK and DR. KIRKCONNELL file this Petition on behalf of themselves and all other persons similarly situated; i.e., licensed Florida physicians practicing ophthalmic medicine in the State of Florida. These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. Page 2 of the Petition. The Petition contains two Counts challenging the Rule Amendment. In support of the Petitioners' standing, the following allegations are contained in Count I: That the Rule Amendment purports to authorize the practice of medicine by persons who are not licensed to practice medicine by chapters 458 and 459, Florida Statutes, thereby adversely affecting Petitioners' property right to practice medicine. That Petitioners are concerned with protection of the public by ensuring that persons engaged in the various health care professions are qualified to do so, and Petitioners believe that the Rule Amendment with illegally authorize certified optometrists to adversely affect the public health through utilization of drugs which they are not qualified to prescribe, administer or monitor. Page 5 of the Petition. In Count II of the Petition, allegations almost identical to paragraph 17 of the Petition are made. On June 13, 1990, the Intervenors filed Intervenors' Motion to Dismiss. On June 27, 1990, the Petitioners filed Petitioners' Response to Respondent's [sic] Motion to Dismiss. On June 28, 1990, the Petitioners filed Amendment to Petitioners' Response to Respondents' [sic] Motion to Dismiss correcting the title of the Motion and correction of a citation to a court decision contained in the Motion. In the Petitioners' Response to Respondent's [sic] Motion to Dismiss the Petitioners state the following: The pleadings allege adequate facts in the following paragraphs from the petition: ".... improve quality of health care administered to the public, and to educate the public to its needs for adequate health care . . . .... Many of Petitioners' patients also visit optometrists for some of their vision care needs .... .... These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. The Petitioners also quoted paragraphs 17 and 26 of their Petition. Pursuant to written notice a motion hearing was held on July 3, 1990, to consider the Intervenors' Motion to Dismiss and other motions previously filed by the parties. Following oral argument of the parties, the parties were informed that the Intervenors' Motion to Dismiss would be granted. The FSO and the individual ophthalmologists in Board of Optometry v. Society of Ophthalmology, 538 So. 2d 878 (Fla. 1st DCA 1989), cert. denied, 545 So. 2d 1367 included the following allegations of fact concerning their standing in their Petition in that case: 1. Petitioner FSO is a Florida net- for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians (M.D.'s and D.O.'s) specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of the Florida ophthalmologists. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. In addition to the representation of its members, FSO is committed as an organization to protecting, maintaining and improving the quality of eye care which is available to the public. 3. Petitioners Broussar, Patrowicz, and Byerly are physicians licensed by the State of Florida pursuant to Chapter 458, Fla. Stat. Broussard maintains an office for the practice of medicine in Melbourne, Florida; patrowicz in Mount Dora, Florida; and Byerly in Tallahassee, Florida. Each physician specializes in the field of ophthalmic medicine opthalmology. Ophthalmology consists of the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery and corrective lens and prisms. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. . . The following allegations were included in the petition in Board of Optometry, concerning the substantial affect on the FSO and the individual opthalmologists: The physician Petitioners and a substantial number of the members of the association Petitioners are substantially affected by the Board's proposed certification of any optometrist as a certified optometrist in the following ways: Petitioners believe that the certification of optometrists, and the concomitant authorization of such certified optometrists to use and prescribe medications in their practice of optometry encroaches on the right of physicians licensed to practice medicine pursuant to Chapter 458, Fla. Stat. The right to practice medicine is a valuable property right in Florida, and subject to the protection of the due process clauses of the Florida and United States Constitutions. Petitioners have been denied due process in regard to the impending infringement on or diminution in value of their property rights. Petitioners also believe that the quality of eye care and health care available to the public will decline as optometrists are certified to use and prescribe medicine in the practice of optometry. Petitioners believe that allowing optometrists to administer and prescribe drugs presents a danger to the public, including but not limited to Petitioners' patients. Petitioners believe that the general public is uninformed as to the distinction between optometrists and ophthalmologists, when in fact significant differences exist in education, training, ability, experience, and scope of practice. The designation of some optometrists as "certified optometrists" further adds to the confusion and will result in the treatment by optometrists of patients who should be treated by Physicians. This not only will result in economic injury to physicians, including the. physician Petitioners and all other similarly situated, but also in injury to their practices, loss of public respect for their profession, and to the health and welfare of Petitioners' patients and the patients of other similarly situated physicians.
The Issue The issue for consideration was whether Petitioner was properly denied licensure as an optometrist based on the examination taken by him on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues herein, the Board of Optometry has been the state agency responsible for the licensing of optometrists in Florida. On September 16 - 18, 1988, Petitioner, Kenneth W. Gerke, O.D., took the optometry examination administered at the Department's Miami Examining Center. He failed both the practical examination and a clinical examination, and passed the pharmacology/ocular examination with a grade of 72 and the Florida law/rules examination with a grade of 96. No evidence was introduced to establish what the pass/fail point was for each section of the examination. Thereafter, Respondent requested a review of his scores and on February 28, 1989 he was again notified he had failed the examination though his pharmacy/ocular score was raised to 73.7 and his clinical score was raised to Petitioner then filed a request for a hearing to contest specifically the grade he received on questions 4 & 10 of the clinical examination, Part I, and questions 2, 10, 14, 15, and 16 of the clinical examination, Part II. In his initial request for review, submitted on December 3, 1988, Petitioner did not cite specific questions, asking only that the test results of the practical examination taken on September 18, 1988 be reviewed with special emphasis on that portion of the practical which dealt with tonometry. Petitioner thereafter challenged Examiner 11's grading of question 4, Clinical I, and Examiner 13's grading of question 10, on Clinical I. With regard to the former, Petitioner claims the examiner did not fill in the bubble, thereby depriving him of 1 point. This discrepancy was corrected on review, however, and Petitioner was awarded credit. With regard to the latter, Petitioner was given full credit for the entire question on review. The combined increase did not give him a passing score. With regard to question 2, Clinical II, Petitioner questions Examiner 60's evaluation of his answer, contending the disc was clearly visible and should have been seen by the examiner since the other examiner, 54, who was working in pair with Examiner 60, did see it. Review of the evaluation sheet pertinent to this question reveals that Examiner 60 gave Petitioner no credit, indicating he did not see the disc. Examiner 54, his partner, gave Petitioner credit but, in the comments section of the form, indicated, "not a very good view." On review, examination officials decided to make no change in Petitioner's grade because even Examiner 54, who had given Petitioner credit for having performed the disc, indicated it was not a good view, and on that basis, they could find no basis to change examiner 60's evaluation. Petitioner presented no evidence to show that decision was in error. Petitioner challenged Examiner 54's evaluation of his answer to question 10, Clinical II, indicating, "I did focus on optic disc and estimate C/D ratio (the other examiner saw it and awarded full points). It was very clear to me and I cannot understand why the examiner did not see it." In this case, Examiner 60 gave Petitioner full credit for his answer, but Examiner 54 gave no credit. When examiners disagree, generally examination officials look at the Examiner comments individually. If it is impossible to sustain the negative comments, the negative evaluation is rejected and the applicant is given full credit. Even if the dispute cannot be resolved, partial credit is usually given, and in this case, initially, Petitioner was given half credit. However, upon review it was determined that his challenge to the grade given by examiner 54 on this question had merit, and he thereafter received full credit for the question. This did not give him a passing score, however. With regard to question 14, Clinical II, Petitioner challenged both Examiner 60 and Examiner 54, since both gave him no credit for his performance of the procedure, a Goldman tonometry. Examiner 54 commented that Petitioner "ran out of time" and Examiner 60 commented that he could see no "mires". Petitioner's challenge reads, "My patient was tearing profusely. I applied fluorescein strip and attempted the pressure measurement. There were no mires due to excessive tearing of patient washing out fluorescein. I dried the patient's tears, reapplied another fluoresceins strip, and was retaking the pressure when time ran out. I believe the timer was not set correctly to allow me a full two minutes." This procedure requires the candidate to anesthetize the patient's eye, apply a fluorescein dye, and thereafter measure pressure by evaluation of "mires" observed through the instrument. Resolution of this question involves a study of the background of the examination. So much of the examination as is contained in Part I is conducted with the candidate performing certain procedures on a patient provided by the examination officials. Part II of the examination involves observation of procedures accomplished on a patient provided by the candidate. The patient is first evaluated by examination officials to determine that he or she is qualified to serve and one eye is dilated by examination officials at that time. Thereafter, the patient is released to the applicant who performs the procedures required under the observation of the two examiners assigned to him. In the case of question 14, the procedure requires the candidate to demonstrate accurate measurement of intra-ocular pressure. He is required to anesthetize the eye, apply a fluorescein dye by means of a strip dipped into the substance, and thereafter measure pressure by the use of an instrument which is gently placed against the patient's eyeball and through which "mires" are observed. Petitioner's patient was unknown to him at the time he performed the procedure. Because he did not know anyone to take as his patient, prior to the examination he contacted an optometrist in Miami whose secretary's boyfriend was recommended as a patient. Petitioner accepted him and used him and the patient was qualified as a bona fide patient. Petitioner contends, however, that for various reasons, the patient's eyes teared excessively washing out the fluorescein dye which would have provided the "mires" for observation. Before he could get additional dye into the eye and remove the excess, time ran out. He also claims that he was not given the full two minutes to accomplish the procedure. Both examiners denied Petitioner credit for his performance of this procedure. On review it was felt that Petitioner did not overcome the negative comments of the examiners. Further, Petitioner failed to follow the procedure which he should have invoked at the time, a description of which was included in the examination description and study guide provided to him prior to the examination and which was verbally briefed to him the day of the examination. He should have notified his examiners at the time he noticed the excessive tearing. Under the protocol for this examination, those examiners would not have made a determination at the site but would have brought the problem to the supervisor for review. Petitioner also could have filed a card when he left his station to formally register the complaint - not while the patient is still present, but to be reviewed afterward. There is no indication here that either examiner brought Petitioner's problem to the supervisor because Petitioner did not bring it to their attention. In addition, Petitioner did not fill out a comment form about the problem as he could have done when leaving the area. If he had notified the examiners of the problem, they would have stopped the evaluation at that moment. The complaint procedure is designed to insure the applicant gets a fair and full chance to demonstrate his ability. Petitioner failed to utilize it. Consequently, even on review he was awarded no credit for this question. Petitioner also challenges Examiner 60's evaluation of his response to question 15, Clinical II, and contends: I did provide a good view of the angle structures. My patient had wide open angles clearly visible. The evaluation sheet reflects that both Examiners 54 and 60 gave Petitioner no credit for this question. Examiner 54 commented that Petitioner failed to describe "scleral spur" and Examiner 60 commented, "Poor to no view." On review, it was determined that neither examiner initially gave credit and that there was no evidence presented by Petitioner which would cause a change to that lack of award. Based on the evidence presented at the hearing, it is found that Petitioner has failed to demonstrate a basis for change to the score of "0" given him on question 15. Petitioner also challenges Examiner 60's response to question 16, Clinical II, claiming: I did estimate the pigment deposition. The examiner may have had a poor view (as in other parts) but mine was clear. (The other examiner had a clear view and awarded full points.) Review of the evaluation sheets reflects that Examiner 54 gave Petitioner full credit for this procedure and he was originally awarded 2 points. The examination sheet filled out by Examiner 60 reflects, "No credit. Poor to no view." On review, the award of 2 of 4 points was not overturned. At the hearing, Petitioner engaged in a substantial dialogue with the Board's consultant, Dr. Attaway, as to whether the examiners' view of the applicant's performance could have been affected by either the placement of the "teacher's" mirror, through which the examiners observed the procedure, or the examiners' position with regard to the mirror. Dr. Ottawa conceded that both contingencies could affect the evaluation and in light of the fact that Examiner 54 gave full credit with no adverse comment, and his opinion has been held to be highly esteemed in other incidents involving this Petitioner, it must be concluded that Petitioner's accomplishment of the required procedure was done properly and he should be awarded the additional 2 points. In each case during the examination, the candidate is observed by two examiners. It is not uncommon for examiners to disagree. Between 85 and 88 percent of the time, they agree on their evaluation of a particular candidate's procedure. In the instant case, however, the area of disagreement was somewhat higher. When this happens, generally it means the candidate is borderline; neither clearly very good nor clearly very poor. With regard to the pressure test, (Goldman tonometry), measured in procedure 14, the Board's consultant, agrees that not all patients can be evaluated for pressure utilizing this method, also known as aplination tonometry. In the instant case, the evidence showed that the patient had had his eye dilated upon reporting for qualification more than an hour prior to the accomplishment of the procedure. In the course of the qualification and the procedure evaluations, he had been examined by numerous people. This is not an unusual set of circumstances in an examination situation. It would, however, prolong the procedure and certain individuals tear more than others. As a result, it is possible that in these circumstances, the patient would excessively tear and the fluorescein dye used to present the mires could wash out, giving an improper reading. Here, one examiner indicated he was unable to identify or observe any mires. If the probe used to measure pressure were touching the eye and no mires were presented, that would mean there was no dye left on the eye. However, if the probe was not touching the eye, there would be no mires presented even if there was dye in the eye. Petitioner's witness, Dr. Perry, an expert in ophthalmology, has often had dye wash out of an eye because of excess tearing and has often had difficulty in getting a pressure reading. It can quite often take longer than the 2 minutes allowed during the examination for the procedure and is sometime impossible to get under any circumstances. Aplination tonometry is not a difficult procedure to learn and its use is not reserved to ophthalmologists or optometrists. Routinely, technicians are easily taught to perform it and do so on a repeated basis. Petitioner has worked for an ophthalmologist in the Sarasota area for 5 years as a technician and has done many of the procedures on which he was tested during the examination in issue. Petitioner has done thousands of aplination tonometry procedures and in fact, has performed the procedure on Perry. In those cases of which Dr. Perry is aware, including his own, the procedure was done properly. Dr. Parry agrees that the time limit of 2 minutes allotted at the examination is not unrealistic in the normal situation. However, the procedure often takes more than 2 minutes to perform, and when it does, that fact is usually indicative of a problem with the patient, not the tester. Based on his personal experience with Petitioner's demonstrated ability to properly perform the aplination dynamotor procedure, he is "flabbergasted" that Petitioner had problems with it during the examination. There is more than one way to apply fluorescein dye to an eye for the purpose of pollination dynamotor. One is to apply the fluorescein by strip and the other is to apply a mixture of dye and anesthetic by dropper. The latter method requires a 30 to 60 second wait after application to allow the excess solution to wash out. However, that procedure was not used in this examination, and the strip, which allows immediate application of the probe and observation of mires, was. In the instant case, the patient's eye had been dilated for over an hour when the examiner placed the anesthetic in the eye to be examined and told Petitioner to begin. Petitioner started immediately but was unable to get a mire even though he saw the glow in the patient's eye which indicates the probe was touching the eye as appropriate. When he checked the equipment and found it to be operating properly, he realized that the dye had washed out of the eye because of the tearing and he was attempting to begin the process again when the examiner indicated he had run out of time. Though Petitioner claims the amount of time he was given was improperly measured, he is unable to establish that by any independent evidence. When he asked the examiners for a second opportunity, allegedly he was advised, "Don't worry about it. It's only one question." After the examination, he thought about filing an objection card but, since he claims to have been advised by another optometrist, "not to make waves", he decided against it. Petitioner claims that the examination was fatally flawed for several reasons. The first is that Examiner 60, he claims, was routinely different and more strict with him than was Examiner 54. Rebuttal evidence presented by Ms. Loewe, the examination specialist, indicates, however, that for this examination, Examiner 60 generally graded higher than others across the board. Petitioner also claims that the routine order of tests was not as recommended by experts. Generally, certain procedures are to be accomplished in a certain sequence in a routine examination. Petitioner overlooks, however, that regardless of the sequence of procedures, the examination was not a routine "patient" examination but an examination of the applicant's ability to perform the procedures in question. The considerations dictating a certain sequence in a clinical examination may not be pertinent to the sequence appropriate for a candidate examination, and this argument is without merit. Petitioner also questions the anonymity of the candidate which prevents a knowledge of the candidate's other background and unexamined qualifications. Anonymity is designed to allow a candidate to demonstrate for examiners the substance of his knowledge and skill, is routine, and is found to be appropriate. Further, he claims the location of the examination, the time limit, and the other factors surrounding the conduct of the examination promote nervousness in the candidate and hinder the candidate in his performance of the required procedures to the best of his ability. There was no independent evidence to support this contention or to demonstrate that had the examination been conducted under other circumstances, Petitioner or any other examinee would have performed differently. There are legitimate reasons for the actions taken by the Board, considering the way the examination was conducted. Admittedly the order of tests to be given is not included in the study guide, and the applicant would not know in advance in what order the procedures would be accomplished, but he would have advance information as to which procedures would be examined. Petitioner also pointed out that the patient upon whom he performed the procedures was a stranger to him and that because of his unfamiliarity with the patient and his background, he sustained a handicap more severe than the other candidates. This contention is without merit. All new patients are strangers to the optometrist when they first come for examination. In any case, the candidate is not being asked to treat a patient, but to demonstrate his ability to properly accomplish certain procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's scores on the September 16 - 18, 1988 optometry examination, as revised prior to hearing, be sustained except for that awarded in Question 16, Clinical II, and that he be awarded an additional two (2) points for his performance of that procedure. RECOMMENDED this 19th day of July, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989. COPIES FURNISHED: Kenneth W. Gerke, pro se 1831 Mid Ocean Circle Sarasota, Florida 34239 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Lawrence A. Gonzalez Secretary DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Kenneth A. Easley, Esquire General Counsel DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Optometry 1940 N. Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, Michael Selinsky, was a candidate for the chiropractic examination given in November of 1987. The practical examination is composed of three portions, X-ray interpretation, technique and physical diagnosis, and a score of 75% must be achieved on all three subject areas in order to pass. The petitioner received a score of 77.1 on the X-ray interpretation area, a score of 77.5 on the technique area and a score of 72.5 on the physical diagnosis area. In this proceeding, petitioner challenges two of the scores he received on the examination in the area of physical diagnosis. The physical diagnosis portion of the examination consists of oral questions posed to the candidate by two examiners. The answers are graded on a scale of 1 to 4, with 4 being the highest grade. Petitioner challenges the grade of 3 one of the examiners gave him for the "neurological" portion of the exam and the grade of 2 another examiner gave him for the "X-ray technique & diagnosis" portion of the examination. On these two areas of the examination, Examiner number 14 awarded petitioner a grade of 3 on both areas. Examiner number 23 awarded petitioner a grade of 4 on the "neurological" portion anal a grade of 2 on the "x-ray technique & diagnosis" portion. During the neurological section of the oral examination, petitioner was requested to demonstrate upon a live model how he would test the extensor hallicus longus muscle for the L-5 mytome. In response, he extended the great toe in the wrong direction. In responding to a question concerning an upper motor neuron lesion and a lower motor lesion, petitioner's answers were very incomplete. During the X-ray technique portion of the oral examination, petitioner was requested to demonstrate with a live model how he would position a patient for a lateral shoulder x-ray. The petitioner responded that he had never heard of such a position, but then attempted to position the patient. In fact, there is no way to take an x-ray of the lateral shoulder view because two bones would be superimposed. While this might be viewed as a "trick" question, petitioner should have been aware that no such x-ray could be taken. During another x-ray positioning question, petitioner failed to turn the patient's head. Also, during the X-ray technique portion of the oral examination, petitioner was asked to identify three factors that affected his exposure to radiation as an operator. The petitioner's answer included such things as lead- lined booths, lead-lined walls in the x-ray room and proper film developing to decrease the number of retakes. Several times, the examiners asked him questions regarding his answers, and the petitioner responded that he was not sure. When considering an operator's safety with regard to radiation exposure, there are three fundamental and established factors to take into account: time of exposure, distance and shielding. The petitioner's answers had relevance to patient safety, but not to the safety of the operator. In spite of prodding and grilling by the examiners with regard to operator safety, petitioner was unable to elucidate the three fundamental factors of radiation safety.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition be DISMISSED. Respectfully submitted and entered this 17th day of October, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1988. COPIES FURNISHED: Copies furnished: William A. Leffler, III, Esquire Bruce D. Lamb, General Counsel Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750 Michael Selinsky Pat Guilford, Executive 5259 Wayside Court Director Spring Hill, Florida 34606 Board of Chiropractic Examiners Lawrence A. Gonzalez, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner took the optometry examination administered to candidates for certification for licensure to practice optometry in the State of Florida in July of 1980. The written portion of the optometry examination consisted of four sections or sub-parts; ocular pathology, theory and practice, pharmacology and laws and rules. The ocular pathology section consisted of 100 written and 20 slide questions. One and one-half hours were allotted for completion of the ocular pathology section. Thirty minutes was permitted for the completion of the slide portions of the ocular pathology sub-part. The written and slide portions of the ocular pathology section were separated by the administration of the theory and practice sub-part of the optometry exam, which consisted of one hundred items with one and one-half hours permitted for completion. The Petitioner completed the ocular pathology section of the exam and received a final grade of 69. A minimum passing grade of 70 was required by the Respondent on that portion of the optometry exam. Ocular pathology was the only portion of the exam which the Petitioner failed. An item analysis of the items on the ocular pathology portion of the examination was undertaken by the Department of Professional Regulation staff subsequent to administration of the examination. The item analysis undertaken was in conformity with standard post-test procedures for determining the validity of test items. Following the item analysis review, members of the Board of Optometry who formulated the exam received the item analysis results and recommended to the Board that credit be given to all candidates, including Petitioner, for each item on the ocular pathology portion of the examination which was determined to be invalid. As a result of the Board's authorization, credit was given to all candidates for 22 percent of the examination. The ocular pathology portion of the examination had a higher error or adjustment rate than the other subparts of the examination which ranged from 2 percent to 15 percent. The points awarded by the Board on the ocular pathology portion of the exam to compensate for invalid test questions were awarded in a manner commensurate with accepted testing techniques for evaluating test questions. Petitioner's score on the ocular pathology portion of the exam was adjusted from 46 to 58 points following the Board's first authorized analysis. Following a second regrading that the Board authorized to compensate for questions eliminated as a result of examinee review, the Petitioner's score on the ocular pathology portion was again adjusted upward from 58 to 69 points. The method utilized by the Department in reviewing examinations authorizes credit for questionable exam items. Such an approach to testing results in scores which are adjusted upward as test items are eliminated. This is a liberal approach to testing philosophy which effectively resolves doubts regarding a correct answer in favor of the examinee. Petitioner completed the ocular pathology portion of the examination but did not have sufficient time to review all his responses before turning in the test. Petitioner did not, however, participate in a review of his examination when given an opportunity to do so by the Department within thirty (30) days after the announcement of test scores.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying the Petitioner's request that his score pathology portion of the July, 1980 optometry examination be adjusted to reflect a passing grade. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: Robert D. Newell, Esquire OERTEL AND LARAMORE, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32302 Robert E. McGuire, O.D. 2530 Stern Drive Atlantic Beach, Florida 32233
The Issue The issue is whether Petitioner received the proper grades on the November 1997 chiropractic examination.
Findings Of Fact Petitioner graduated in 1994 from a chiropractic university. He was licensed to practice in Michigan and saw 100-200 patients daily while in practice there. In November 1997, Petitioner took the Florida chiropractic licensure examination. The November examination consisted of three parts: technique, physical diagnosis, and x-ray interpretation. (A fourth part on Florida law is irrelevant in this case.) A passing grade is 75 on each of the parts, which are graded separately, not cumulatively. Petitioner earned a passing grade of 85.5 on the physical diagnosis part of the November examination. However, he earned failing grades of 60 and 67.6 on the technique and x-ray interpretation parts, respectively. Petitioner suffers from diabetic retinopathy, which resulted in neovascularization of both eyes with a rupture in the left eye. Petitioner was totally blind in this eye for several months until the blood drained out of it. The residual scar tissue formed a macula, or traction, that created a black spot in the center of Petitioner's vision with the left eye. This condition has not been corrected by surgery, and Petitioner has been left with a permanent blind spot in the field of vision of his left eye. When Petitioner first received his application for the Florida examination, he did not inform Respondent of his visual disability because it does not affect his ability to read x-rays in viewboxes, which, based on past experience, was how Petitioner assumed that the x-rays would be presented. Later, Petitioner learned that the x-rays were presented on slides projected on large screens for all of the candidates taking the examination. At the November 1997 examination, there were three screens for approximately 160 candidates. Two to three months prior to the test date, Petitioner contacted a regulatory specialist for the Board of Chiropractic to obtain the necessary accommodation, which would consist merely of assigning Petitioner a seat in the first row from the screen. When this person did not return Petitioner's calls, he contacted another person who was employed at the Division of Medical Quality Assurance. Trying to help Petitioner, she suggested that he bring a physician's note to the examination, and the test administrator would seat him up front. Petitioner did as he was told, but when he appeared at the test site, about 30-45 minutes early, he was told at the door that he could not even bring the note inside with him to show the test administrator. Petitioner entered the test room and found that he had been assigned a seat three rows from the back. He tried to explain his situation to a proctor, but was unable to get his seat moved or permission to approach the screen to see the x-rays better, so he proceeded to take the examination. When the x-rays appeared on the screen, Petitioner tried closing his left eye and squinting, but could not see the x-rays sufficiently to interpret them in this timed section of the examination. Respondent's mishandling of Petitioner's timely and reasonable request for an accommodation for this visual disability rendered the scoring of the x-ray interpretation part of the November examination arbitrary and capricious and devoid of logic and reason. Respondent's solution is to offer a free retest for this part of the examination. If there were no basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then a free retest would be Petitioner's sole remedy. However, if there is a basis in the record to imply an accurate score for the x-ray interpretation part of the November examination, then this is the preferred remedy because, for the reasons set forth in the conclusions of law, this remedy better restores Petitioner to the position in which he should have found himself after taking the November 1997 examination. In this case, it is possible to imply a correct score for the x-ray interpretation part of the November examination due to: 1) the clear nature of Petitioner's disability; 2) the clear results obtained six months later when Petitioner retook the x-ray interpretation part of the examination with no other accommodation besides being seated in the front row; and 3) the absence of any indication in the record that Petitioner enlarged his knowledge of x-ray interpretation between November 1997 and May 1998. In May 1998, Petitioner passed the x-ray interpretation part with a score of 82.3. It is found that Petitioner would have passed the x-ray interpretation part of the November 1997 examination if Respondent had made reasonable accommodation for his disability. It is further found that, eliminating the unreasonably adverse testing conditions at the November examination, Petitioner's proper test score for the x-ray interpretation in the November 1997 examination is 82.3. Petitioner's performance on the May 1998 examination does not inspire as much confidence on the technique part of the examination. Although he raised his score on the latter examination, he still scored only a 70, which is five points below passing. At this latter examination, Petitioner also failed the physical diagnosis part with a score of 73.7, even though he had passed it with an 85.5 six months earlier. This matter is discussed in the conclusions of law. Petitioner's strongest challenge to the technique part of the November examination is confusion concerning an instruction describing the patient as suffering from an "old compression fracture." Petitioner did not perform the manipulative technique, for which he would have received credit, because he was concerned that the fracture might not have healed; he thus performed only a soft tissue massage. There is insufficient ambiguity in the description of an "old compression fracture" to justify Petitioner's caution, especially considering that he did not avail himself of the opportunity to ask questions of his examiners. Petitioner's other challenges to the technique part of the November 1997 examination are without merit.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order awarding Petitioner a passing grade of 82.3 for the x-ray interpretation part of the November 1997 examination, in place of his invalid score of 67.6, so that he will be deemed to have passed the physical diagnosis and x-ray interpretation parts of the chiropractic licensure examination at the November 1997 administration. DONE AND ENTERED this 26th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1998. COPIES FURNISHED: Philip Andrew Cobb 18508 Orlando Road Fort Myers, Florida 33912 Anne Marie Williamson, Attorney 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 Pete Peterson, General Counsel 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 32399-0792
