The Issue Whether Petitioner's challenge to the grades she received on certain portions of the clinical examination administered in December 1996 (to applicants for licensure as a dentist) should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in this case, the undersigned is unable to make any findings of fact relating to the merits of Petitioner's Examination Challenge.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health, Board of Dentistry, issue a Final Order dismissing Petitioner's Examination Challenge. DONE AND ENTERED this 20th day of November, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 20th day of November, 1997. COPIES FURNISHED: Dr. Michele E. Worthy, pro se 7501 East Treasure Drive Apartment 6-L North Bay Village, Florida 33141 Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Tallahassee, Florida 32308-5403 William Buckhalt, Executive Director Department of Health, Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0765 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building Six Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner achieved a passing score on the Laws and Rules Part of the August 13, 1993, Optometry Examination and thereby receiving an overall passing grade.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the relief sought by the Petitioner. RECOMMENDED this day 18th of February, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 18th day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5809 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 in this case. Petitioner, James R. Coppola's Proposed Findings of Fact. Petitioner did not number his proposed findings of fact; however, I have taken the liberty to number them 1 through 14, beginning with the second full paragraph. Proposed findings of fact 1 and 3 are covered in the Preliminary Statement of the Recommended Order. Proposed findings of fact 2, 11 and 13 are neither material nor relevant to this proceeding. Proposed findings of fact 4 - 10, 12 and 14 are rejected for the reasons stated in Findings of Fact 7 - 19. Respondent, Department's Proposed Findings of Fact. Respondent has broken his proposed findings of fact into three categories and numbered each category separately; however, I have taken the liberty to renumber them 1 through 20, beginning with number 1 under Statement of the Case through 5 under Second Challenge. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(3,4); 8-9(10); 10(12); 11(18); 12(9); 14(7); 15(10); 16(14); 17(15); 18(18) and; 19-20(14). Proposed findings of fact 2 - 7 are covered in the Preliminary Statement of the Recommended Order. Proposed finding of fact 13 is adopted in Finding of Fact 10, except that portion concerning the statement that the language "not to exceed $2500" does not appear in Chapter 21Q-15, Florida Administrative Code, which is rejected. See the language of Chapter 21Q-15, Florida Administrative Code, in Finding of Fact 10. COPIES FURNISHED: James B. Coppola 254 Felton Avenue Port Charlotte, Florida 33952 William M. Woodyard, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Diane Orcutt, Executive Director Board of Optometry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to received a passing score on the June 2001 Dental Licensure Examination.
Findings Of Fact The Petitioner sat for the Dental Licensure Examination of June 2001. He failed to pass the clinical section of that examination and thus became an unsuccessful candidate for licensure. The June 2001 Dental Licensure Examination (Examination) consists of two parts, a clinical portion and a law and rules section. The clinical portion consists of nine procedures. The Petitioner challenged four of the nine procedures. The Department selects three examiners to independently grade each candidate's performance. The average of the three examiners' independent scores for each procedure produces the overall grade for that procedure under the Department's scoring methodology. The average grade for each procedure is then weighted pursuant to the requirements of Rule 64B5-2.013, Florida Administrative Code, which produces the overall score for the entire clinical examination. The Department allows for three examiner scores, rather than only one examiner scoring each procedure, because it provides a more reliable indication of the candidate's competency and a more accurate score. Each examiner must be a licensed dentist for a minimum of five years before becoming an examiner and must have no complaints or disciplinary actions recorded against his license. The examiners have no contact with the candidate and therefore have no knowledge of the identity of the person whose examination they are grading. Each examiner must attend and successfully complete a standardization session or course as well. This is designed to train each examiner to use the same internal grading criteria. In standardization, the examiners are taught specific grading criteria, which instruct them on how to evaluate the work of candidates. The examiners are accorded identity numbers for use in the examination and grading process. The examiners who graded the Petitioner's examination were examiners numbered 364, 083, 316, 366, 117, and 299. All of them successfully completed the above-described standardization session or course. The Petitioner contested the score he received on the Class II composite restoration procedure. He claims that the Department's instructions, as to the use of a dye material in the amalgam material used to fill a tooth, conflicted with the manufacturer's instructions, that is, the manufacturer of the restoration amalgam material and/or dye material. The Class II composite restoration procedure of the examination is a procedure involving the candidates' ability to fill an opening inside a tooth with a composite resin material which produces a "tooth colored" filling. This procedure also involves replacing a portion of the tooth. Based on the examiners' comments and grades, as well as the testimony of Dr. Charles Ross, the Petitioner failed to properly perform this procedure. The Respondent's expert witnesses Dr. Charles Ross, a licensed dentist practicing for 32 years, as well as Marsha Carnes, a psychometrician employed by the Department, explained that due to security reasons and fairness considerations, all candidates were instructed to place the dye material in the composite. All candidates thus had to contend with the use of the dye material and none was exempted from it. Dr. Ross has had over 12 years' experience working with the Dental Licensure Examination and has examined well over 1000 dental candidates. He established that, as to the manufacturer's instructions, candidates are not graded on a specific name brand material. Candidates are graded on their technique and how well they perform the required criteria. Therefore the manufacturer's instructions are not considered for grading purposes because no two manufacturers, or the materials they produce, are the same. Dr. Ross also established that the dye did not hamper the Petitioner's ability to perform this procedure. In fact, the Petitioner received a passing grade of 3.33 on the Class II composite restoration procedure. The Petitioner's Exhibit One does not support the Petitioner's argument that "the Department contravened the manufacturer's instructions as to the use of dye material." On the contrary, the Petitioner agreed that there are numerous manufacturers of dye material and how they use their materials varies from one manufacturer to another. The Petitioner contested the score he received on the Class II Amalgam preparation procedure claiming that since only one of the three examiners found caries (decay) in his preparation and the other two examiners did not comment on having seen caries, that this is an example of inconsistent grading. The Petitioner acknowledged that he still had caries in his preparation when he completed a "monitor to examiner note." In this note, which is permitted under the examination procedures, the Petitioner requested to "extend his preparation beyond ideal" in order to clear away remaining decay. He presented this note to the monitor of the examination who then, without revealing the candidate's identity, gave the note to the examiner for approval or disapproval. The monitor to examiner notes are used by a candidate to convey a message to the examiner through the monitor. The monitor, who is also a licensed dentist, does not render any grading. The monitor acts merely as a "messenger" between the candidate and the examiner, who must not know each other's identity. Although the monitor agreed with the Petitioner that decay remained, the monitor disagreed that the Petitioner needed to "extend his preparation beyond ideal." The monitor indicated his agreement by circling his identification number (318) and his disagreement by not circling his identification number. In other words, he agreed that decay was present but disagreed that the Petitioner needed to extend his preparation or the size or configuration of the "box" where the filling would ultimately be placed. The patient amalgam preparation procedure of the examination is a procedure that requires candidates to completely remove a caries lesion or decay from a section of tooth. Based on the examiners' comments and grades and the testimony of Dr. Ross and Dr. Jeffrey Metcalf, the Petitioner did not properly perform this procedure. Dr. Metcalf stated that he gave the Petitioner a grade of "1" for the patient amalgam preparation procedure because the Petitioner's "proximal box" had a very thin wall of enamel or severe undermining. This thin wall, according to Dr. Metcalf, will eventually crack and fracture upon pressure as the patient chews food or grinds his or her teeth. Although Dr. Metcalf saw the Petitioner's monitor note regarding decay, it had very little effect on how he graded the Petitioner. Dr. Ross established that the Petitioner had removed too much or more than enough dentin from the tooth on the Class II amalgam preparation procedure. The presence of adequate dentin is critical to provide a foundation or support for the enamel. Enamel must be attached to dentin, the bulkiest portion of the tooth, otherwise, the enamel will fracture. Concerning the caries, Dr. Ross established that caries may start out large and then the candidate removes caries until it appears as the size of a small dot. Upon Examiner 117's discovery of the caries, while simultaneously using the explorer (probe or pick) to "feel" for the caries, his instrument could have removed the small portion of the carious lesion remaining. Depending on the order in which each examiner graded the Petitioner on this procedure (not of record) it is possible that the next two examiners did not see the caries, if the first examiner through his probing with the tool had removed the caries by removing the discolored area it consisted of. Moreover, Dr. Ross established that even if Examiner 117 was not the first examiner to grade the preparation, the other examiners may have focused on other specific areas of the Petitioner's preparation and simply may not have detected the caries. This is not an unusual occurrence among examiners. Thus the fact that two of them did not record seeing the caries does not mean that they were not present. The psychometrician, Marsha Carnes, testifying as an expert in that area for the Department, explained that based on the monitor sheet, Examiner 117 specifically requested the Petitioner to "deepen the axial gingival line angle of the proximal box." In other words, Examiner 117, through the monitor, requested the Petitioner to remove the decay. The Petitioner acknowledged that he had caries by generating the monitor note in which he requested the authorization to "extend his preparation" in order to remove the caries. Both Dr. Ross and Ms. Carnes explained that examiners commonly "bubble-in" different comments for the same procedure. This is not unusual and is sometimes beneficial to the candidate. Further, when examiners grade an examination they grade holistically. In other words, they do not deduct points for different comments. Instead, examiners consider the model or the patient as a whole and render a grade based on what they learned in their standardization training. When three examiners observe the same model or patient procedure, it is expected that three people will render grades for different reasons. Further, if they render a grade of "2," "1," or "0" for the patient procedures, examiners are required to go a step further by completing a grade documentation sheet. Although the Petitioner's main focus on the Class II amalgam preparation led to lengthy testimony and argument on the caries issue, caries did not unilaterally determine the overall grade. The Petitioner's overall grade is a combination of all of the individual grades he received for all nine clinical procedures. Moreover, the "0" grade was not the only failing grade the Petitioner received on the Class II amalgam preparation. The Petitioner also received a grade of "1" from Examiner 366 for the same procedure. The Petitioner also contested the score he received on the preparation for a three-unit, fixed, partial denture procedure, claiming that he could not find the undercut as indicated by one of the examiner's comments. The preparation for a three-unit, fixed, partial denture procedure of the examination is a procedure that involves the candidate's ability to provide preparation of two teeth in order to replace a missing tooth with a fixed bridge. Based on the examiners' comments and grades and the testimony of Dr. Ross, the Petitioner failed to properly perform this procedure. Dr. Ross established that the Petitioner's work on this procedure resulted in one tooth, the cuspid, being slightly tilted away from the bicuspid. It is impossible to place a bridge on an improper preparation. Dr. Ross further stated that the Petitioner had a problem with this procedure because of the Petitioner's undercut. The undercut indicated that the Petitioner's preparation was not properly aligned to accept a bridge. Additionally, the Department's expert psychometrician witness, Ms. Carnes, explained that it is common for examiners to give identical grades, yet write down different comments on the same procedure. That does not mean an examiner has made a mistake. While they use the same grading criteria, examiners occasionally see different errors. The Petitioner has contested the score he received on the Endodontic procedure as well. An Endodontic procedure also known as a "root canal," involves removal of infected nerve tissue and blood vessels and pulp from a tooth. The candidate is required to access the canal and pulp tissue from the outside. He must then remove the affected nerve and cleanse the canal. Finally, the canal must be sealed to prevent recurring bacteria inside the tooth. In consideration of the examiners' comments and grades and the expert testimony of Dr. Ross, the Respondent has established that the Petitioner did not properly perform that procedure. Dr. Ross opined that the Petitioner failed to properly fill the canal. The Petitioner's access to the canal was not straight. Instead the Petitioner's access to the canal removed too much of the tooth on one side which resulted in weakening the structure of the tooth. This would cause the tooth to eventually fracture. Additionally, the Petitioner's gutta percha material (rubber-like material) was improperly left inside the chamber reamed out in the tooth in the root canal and nerve removal process. When a core is placed inside that chamber the gutta percha material left under it in the chamber can flex or move, which will force the core to move when the patient applies pressure, as, for instance, by chewing. Finally, the Petitioner failed to adequately seal the apical end of the root canal at the apex of the canal space or a maximum of one millimeter above the apex. The Department allows for a "re-grade" process. The purpose of the regrading process is to give all candidates who request a re-grade another chance at passing the examination. In other words the Department thus seeks to determine whether any grades rendered were inconsistent or inaccurate. The Department selects the top three examiners, who had the highest reliability from that examination, to participate in the re-grading process. The Department's post-standardization statistics of the examiners' performance indicated that the Petitioner's examiners graded reliably. The post-standardization statistics indicate the examiners' performance on grading of models during standardization. Additionally, the Department calculates post- examination statistics, which are as follows for the examiners who graded the Petitioner's challenged procedures: Examiners Accuracy Index & Rating #364 93.1 Very Good #083 95.7 Excellent #316 97.0 Excellent #366 (Metcalf) 94.0 Very Good #117 90.4 Good #299 89.5 Watch All the examiner's reliability was significantly above the minimum acceptable accuracy index of 85.0.
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 a Final Order be entered by the Board of Dentistry dismissing the Petitioner's challenge to the grades assigned him for the June 2001 Dental Licensure Examination. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 6th day of June, 2002. COPIES FURNISHED: Kristian L. Koszeghy 1731 Beacon Street Apartment 1103 Brookline, Massachusetts 02445 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 William H. Buckhalt, Executive Director Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner is an applicant for licensure as an optometrist in the State of Florida. He received a Bachelor's Degree in Biology from Youngstown State University in 1985. In 1989, Dr. Martuccio graduated from the Ohio State University College of Optometry where he had followed a four-year course of study prior to receiving his optometry degree. Dr. Martuccio has been practicing optometry in Ohio since 1989. When Dr. Martuccio took the 1989 optometry examination for licensure in Florida, he received a passing grade on the written portion of the examination but not on the clinical portion. That passing grade on the written examination remained valid when he took the 1990 optometry exam. Therefore, in 1990 Dr. Martuccio only had to repeat the clinical part of the examination. Dr. Martuccio received lower than a passing grade on that clinical examination. For the clinical examination, an applicant is required to bring his or her own "patient." The clinical examination is conducted by having a candidate perform procedures requested by the examiners on the "patient." The clinical portion of the optometry examination is divided into two sections. On Section 1 an applicant can receive a possible score of 48 points. Dr. Martuccio received a perfect score of 48 points on that Section. The total passing grade for Section 1 and Section 2 is 80 points. Therefore, Dr. Martuccio needed to receive a total of 32 points out of a possible 52 points on Section 2. However, the grades given to Dr. Martuccio on Section 2 totaled only 27.5. His total score for the clinical portion of the 1990 optometry exam was, therefore, 75.5. Section 2 of the clinical examination is divided into 16 different procedures. Each of the 16 procedures has a maximum score that varies depending on the weight given to the procedure. The grading is done by two examiners who are practicing optometrists. If both examiners agree, the candidate either receives no credit or full credit depending on whether they considered him to have properly performed the procedure requested. If they disagree, the candidate is given one-half of the possible points on that procedure. Dr. Martuccio has challenged the scores he received on four of the procedures in Section 2 of the September, 1990, clinical exam. Those four procedures, in the order in which they were performed, are: BIO 2 (Binocular Indirect Opthalmoscope), Anterior Biomicro 4 (Anterior Biomicroscopy), Anterior Biomicro 9 (Anterior Biomicroscopy), and Gonio 15 (Gonioscopy). In Binocular Indirect Opthalmoscope 2 Dr. Martuccio was required to show a clear view of the fundus (back of the eye). The back of the eye is visible through the dilated eye by means of a binocular headpiece worn by the candidate and a hand-held lens, which are focused together. This procedure is very simple to perform. It is a procedure which he has been doing since "day one in optometry school," and which Petitioner performs daily in his private practice. One of the graders who evaluated Dr. Martuccio's performance on BIO 2 indicated that he performed the procedure properly, but the other grader indicated that his demonstration was "out of focus". Dr. Martuccio's sight is perfect in both eyes, and he is capable of detecting whether an image is out of focus. Since the "patient" did not move during the examination process, then one of the graders made a mistake in his evaluation. Dr. Martuccio correctly performed BIO 2, and he should receive 2.5 additional points for that procedure. The next procedure in dispute is Anterior Biomicroscopy 4, which was worth a total of four points. The two graders disagreed as to whether Dr. Martuccio properly performed the procedure, and he, therefore, received only two points. This procedure required him to display the corneal endothelium. To do that, Dr. Martuccio used a slit lamp which is an instrument that projects a beam of light into the patient's eye. One grader gave Dr. Martuccio full credit for this procedure. The other gave no credit, commenting that Dr. Martuccio used an optic section rather than a parallelpiped. There is an elementary and fundamental difference between a parallelpiped and an optic section of light projected from a slit lamp. The slit lamp has a separate adjustment that determines the width of this beam of light. Since Dr. Martuccio did not change the width of the beam of light after he began the procedure, that width did not change between the time the first examiner and the second examiner evaluated his work. One of the examiners was mistaken in grading Dr. Martuccio's performance, and Dr. Martuccio was scored incorrectly on this procedure. For Anterior Biomicroscopy 9, Dr. Martuccio was instructed to focus on the anterior vitreous, part of the gel-like substance in the middle of the eye. In some patients vitreous strands are present and may be visible during the examination. However, in healthy patients vitreous strands are not present and the anterior vitreous is extremely clear. In those situations, the beam of light from the slit lamp will have nothing from which to reflect. Dr. Martuccio utilized the standard method of examining the anterior vitreous by focusing the instrument on the back of the lens, which is immediately adjacent to the beginning of the anterior vitreous. The focus is then projected inward, into the eye, which will automatically set the focus within the anterior vitreous. Dr. Martuccio's patient had no vitreous strands, protein particles, or other objects in his anterior vitreous. Thus, there was an absence of particles which would reflect light back to the observer from the subject. The examiner who gave Dr. Martuccio no points for this procedure noted, as his explanation, that vitreous strands were not visible. However, as explained by Dr. Martuccio and corroborated by the Department's expert witness, that was an inappropriate comment if the patient had no vitreous strands. Since the examiner's comments were inappropriate, indicating he used an erroneous criterion, Dr. Martuccio was given an incorrect score on this procedure. Instead of two points, he should have received the full four points. The last procedure in issue is Gonio 15. This was worth a total of four points for which Dr. Martuccio received only two. This process requires a gonioscope to be placed on the patient's eye, in much the same fashion as a contact lens is placed on the eye. Once the gonioscope is placed, a mirror inside this instrument allows the optometrist to examine structures of the eye at a sideways angle and see portions of the eye which are not visible by looking straight into the eye. Dr. Martuccio installed the gonioscope properly and adjusted it so that the structures in question were clearly visible. He received full credit from one of the examiners but no credit from the other examiner whose comment was that the structures were "out of focus". It is unreasonable to believe that Dr. Martuccio did not keep the structures of the eye in question in focus during this examination. He was able to perform all of the procedures easily, without any delays, and had no problem doing all the procedures in the allotted time, which was relatively brief. Dr. Martuccio's "patient" was an ideal subject who did not move in any fashion so as to cause the focus to change for any of these procedures. Further, Dr. Martuccio is knowledgeable about structures of the eye and the use of all of the instruments involved in this case. He has had extensive training and experience in these areas not only through his formal education in optometry, but also due to the fact that Dr. Martuccio has been in private practice for over two years, using these instruments on a daily basis. Considering that Dr. Martuccio has perfect vision in both eyes, it is difficult to conceive that he could not keep his instruments in focus for the few seconds it took for both examiners to review his work. The Department's expert witness, Dr. Chrycy, characterized the procedures that are called for in Section 2 of the clinical examination as being fundamental and relatively simple. Candidates who cannot perform these functions are clearly unqualified to be an optometrist. Dr. Chrycy expects all graduates of optometric school to be able to keep images in focus. Dr. Martuccio has been licensed in the State of Ohio for over two years and has recently been licensed in the state of Pennsylvania. He passed the National Board examination which is recognized in at least 10 states for licensure. Both the National Board and the Ohio licensure examinations have clinical components similar to Florida's. Dr. Martuccio passed both of those clinical examinations on his first attempt. When considered in light of Dr. Chrycy's characterization that the examination tests fundamental, basic ability and is not difficult, one cannot accept the proposition that Dr. Martuccio was fairly graded in this examination process. The general passing rates that candidates taking the Florida optometry exam have experienced since 1986 are quite low. In 1987, only 51% of those taking the clinical portion of the examination passed; in 1988, 59%; in 1989, 57%, and in 1990, 53%. The overall pass rate for the entire exam is even lower: in 1987, only 30%; in 1988, only 42%; in 1989, only 45%, and in 1990, only 34%. If taken literally, these scores mean that the typical applicant for licensure as an optometrist in Florida is incompetent at using the basic, everyday instruments employed by optometrists and by optometric technicians and is incapable of identifying the different parts of the eye. Such a conclusion is without credibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered awarding to Petitioner 8.5 additional points on the clinical portion and finding that Petitioner achieved a passing score on the September, 1990, optometry examination. RECOMMENDED this 13th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2354 Respondent's proposed findings of fact numbered 1-3 have been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 5 and 7 have been rejected as being irrelevant to the issues under determination herein. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Diane Orcutt, Executive Director Department of Professional Regulation/Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner sat for the optometry licensure examination administered by the State of Florida in September, 1989. The examination included a clinical portion, consisting of three components: Section 1; Section 2; and a refraction exercise. The maximum number of points Petitioner could have earned on each these three parts of the examination was as follows: Section 1- 28 points; Section 2- 52 points; and refraction exercise- 20 points. Petitioner needed a combined total of 80 points on these three parts of the examination to pass the clinical portion of the examination. He received a combined total of 78 points: 28 points for Section 1; 30 points for Section 2; and 20 points for the refraction exercise. On Section 2 of the clinical portion of the examination, Petitioner was required to perform the following 15 routine optometric procedures, with each procedure worth the number of points indicated: Demonstrate equator- 5 points; Demonstrate posterior pole- 5 points; Scan vessel- 5 points; Demonstrate a parallelpiped focusing on the endothelium- 4 points; Estimate anterior chamber depth- 2 points; Demonstrate technique to determine cell and flare- 2 points; Demonstrate optic section of crystalline lens- 2 points; Demonstrate crystalline lens retroillumination- 2 points; Demonstrate anterior vitreous- 4 points; Focus on optic disc and estimate C/D ratio- 2 points; Demonstrate AV crossing and estimate AV ratio- 3 points; Determine foveal reflex- 3 points; Demonstrate accurate measurement of intraocular pressure- 5 points; Demonstrate nasal angle and describe structures- 4 points; and Estimate pigment deposition- 4 points. Petitioner's attempted performance of these routine procedures was independently observed 1/ and graded, on a pass/fail basis, by two qualified examiners, each of whom had been given detailed instructions regarding their responsibilities prior to the administration of the examination. The examiners had been instructed to use a standard of minimal competency in deciding whether to give a candidate a passing or failing grade. Their determination as to whether Petitioner had met this standard with respect to a particular procedure was necessarily a subjective process which required them to exercise their professional judgment. Petitioner received full credit for a procedure if both examiners gave him a passing grade (P). He received no credit for a procedure if both examiners gave him a failing grade (F). Where one examiner gave him a passing grade and the other examiner gave him a failing grade, Petitioner received half credit for the procedure. The following are the individual grades that were given Petitioner for each of the 15 procedures he attempted to perform: Examiner 40 Examiner 54 Procedure 1 F F Procedure 2 P P Procedure 3 F F Procedure 4 P F Procedure 5 P P Procedure 6 P F Procedure 7 P P Procedure 8 F F Procedure 9 P P Procedure 10 P P Procedure 11 P P Procedure 12 P P Procedure 13 F F Procedure 14 F P Procedure 15 P P As they had been instructed to do, if they gave Petitioner a failing grade or a borderline passing grade, Examiners 40 and 54 provided written comments regarding the grade on the grade sheets they filled out. The passing grades that, in the view of the Examiner 40, warranted such comments were those given for Procedures 6, 10 and 15. Examiner 54 believed that the passing grades he gave for Procedures 2, 7, 11 and 14 deserved such comments. With respect to the failing grade he gave Petitioner for Procedure 1, Examiner 40 commented on his grade sheet, "never got view." Examiner 54's comment for this procedure was, "very poor focus." Petitioner was initially provided with a binocular instrument that, due to his inability to fuse, he was unable to use to perform Procedure 1. He so advised the two examiners, who obtained another instrument for him to use. After testing the instrument, Petitioner was asked by the examiners if it was better. Petitioner responded in the affirmative, but indicated to them that it still was not ideal. He thereafter attempted to perform the procedure and asked the examiners to grade him. Procedure 4 is performed with a slit lamp. When the candidate has performed the procedure and he is ready to be graded, he so informs the first examiner, who thereupon looks through the oculars to ascertain whether the candidate has demonstrated a parallelpiped focusing on the endothelium of the cornea of the patient's eye. After the first examiner has completed his evaluation and the candidate indicates that he is ready to be graded again, the second examiner takes the oculars to make his determination as to whether the candidate has properly performed the procedure. The candidate is responsible for holding the focus throughout the procedure. If he does not hold the focus, one examiner may see a properly performed parallelpiped, while the other may not and therefore justifiably give the candidate a failing grade. As noted above, Petitioner received a passing grade from Examiner 40 and a failing grade from Examiner 54 for Procedure 4. The comment, "specular reflection,'1 appears on Examiner 54's grade sheet next to the failing grade he gave for this procedure. This comment suggests that, unlike Examiner 40, Examiner 54 was unable to observe a parallelpiped focused on the endothelium because the reflection of light off the cornea interfered with his view. Apparently, during the time between the examiners' observations, there had been a change in focus that resulted in Examiner 40 seeing one thing and Examiner 54 seeing another. In giving Petitioner a failing grade for Procedure 14, Examiner 40 commented on his grade sheet, "never got stable view." Examiner 54, while he gave Petitioner a passing grade for this procedure, made the comment on his grade sheet regarding this procedure that Petitioner achieved a "very borderline focus." Furthermore, Examiner 54's grade was based upon an observation that was not made at the same time as the observation upon which Examiner 40's grade was based.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Optometry reject Petitioner's challenge to the failing score he received on the clinical portion of Part II of the September, 1989 optometry licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of August, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1990.
The Issue Whether the Petitioner should receive a passing grade on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the Florida Medical Licensure Examination ("FMLE") administered November 15 and 16, 2001.
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: The Department is the state agency responsible for licensing and regulating physicians practicing medicine in Florida, including foreign-licensed physicians. Sections 458.311 and 458.3115, Florida Statutes (2001); Rule 64B8-5.002, Florida Administrative Code. The Department is also authorized to administer licensing examinations to physicians seeking to practice medicine in Florida. Section 456.017, Florida Statutes (2002). Dr. Rivero was accepted as a candidate for the FMLE and sat for the examination on November 15 and 16, 2001. Dr. Rivero attained a scaled score of 332 points on the Basic Sciences & Disease portion of the examination and 331 points on the Clinical Application of Medical Knowledge portion of the examination. Each of these portions of the FMLE administered November 15 and 16, 2001, had a minimum passing score (also known as "cut score") of 350 points. On November 15, 2001, the first day of the examination, the Department staff who were to administer the examination were notified that the Federal Express shipment of examination materials was incomplete and did not include the laboratory value sheets and the answer sheets to be used for each portion of the examination. The supervisor of the examination administration arranged to have copies of the appropriate documents available that morning. The examination candidates, who had been told to arrive at the examination site at 7:30 a.m., were not admitted to the examination room until 8:30 a.m. as a result of the problem with the laboratory value and answer sheets. The candidates were told to skip the questions that required use of the laboratory value sheets and to write the answers in the examination booklets for the questions that required use of the answer sheets. The candidates were advised prior to beginning the examination that they would be allowed additional time to transfer their answers from the booklet to the answer sheet. The examination began at 9:30 a.m. on November 15, 2001, after a delay of one hour. The administration supervisor made an error calculating the time and gave the candidates four hours and ten minutes to complete the examination, rather than the prescribed four hours. In addition, all candidates who wanted additional time to transfer their answers from the examination booklet to their answer sheets were given as much additional time as necessary. Dr. Rivero experienced stress and nervousness as a result of the delay and confusion in the administration of the examination that might have affected her performance on the examination. She did, however, have sufficient time to complete the examination on November 15, 2001, and to transfer her answers to the answer sheet. The minimum passing score on both portions of the examination was 350 points. These "cut scores" were developed for the November 2001 FMLE using the Angoff method of scoring. The Angoff Method is a widely used method for selecting the "cut score" for an examination. For each administration of the FMLE, a group of physicians are chosen to review the examination and determine, question by question, the percentage of minimally competent people who would answer each question correctly. The "cut score" for each portion of the examination is developed by averaging the responses of the physicians. The Angoff method was a valid methodology for ascertaining the "cut scores" for the November 2001 administration of the FMLE. After the examination was scored, a group of physicians and a psychometrician met to review all of the questions that were the subject of a complaint by examination candidates and all of the questions that a statistically significant number of candidates answered incorrectly. The group also conducted a Point by Serial review of the examination, which involves establishing that the candidates scoring highest on the examination answered a particular question correctly, while candidates scoring lowest on the examination answered the same question incorrectly. As part of this post-examination review, the November 2001 FMLE was reviewed for discrepancies between the order of the answers to questions in the English version of the examination and the order of the answers to questions in the Spanish version of the examination. No discrepancies were found.2 In addition, Dr. Rivero conceded that there were no discrepancies between the English and Spanish versions of the questions she answered incorrectly. The results of the review of the November 2001 FMLE established that the examination was fair, reliable, and valid. The November 2001 FMLE was developed, scored, and reviewed in accordance with the procedures normally used by the Department. Dr. Rivero has failed to establish that she should be awarded additional credit for any question the Department scored as incorrect on the Basic Sciences & Disease and on the Clinical Application of Medical Knowledge portion of the examination.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the petition of Ana Rivero challenging her failing scores on the Clinical Application of Medical Knowledge and Basic Science & Disease Process portions of the FMLE administered November 15, and 16, 2001. DONE AND ENTERED this 20th day of December, 2002, 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 (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 20th day of December, 2002.
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
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. Petitioner applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology and chemistry. On February 11, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours or HEW exam required under Section 10D-41.25(9) or (10), Florida Administrative Code. Petitioner holds a high school equivalency diploma. Petitioner attended the Manhattan Medical Assistants' School in 1960-1961 and graduated from that school, receiving a diploma as a Laboratory Technologist. When Petitioner attempted to obtain a transcript of his studies at that school, he discovered that the school is no longer in business; and, accordingly, he is unable to obtain a transcript reflecting his studies there. Petitioner does not have a bachelor's degree from an a"credited college or university. Through the years, Petitioner has taken a number of continuing education courses, but these courses have not been affiliated with an accredited college or university. Prior to moving to Florida, petitioner was employed for seventeen years as a Laboratory Technologist at the New Rochelle Hospital Medical Center and was a supervisor of the evening and night shifts at that Center. Petitioner's witnesses testified as to the quality of Petitioner's work as an employee of the Department of Pathology at South Miami Hospital. Petitioner has taken the U. S. Public Health Service proficiency examination in clinical laboratory technology. A satisfactory score on all sections of that examination must be obtained in order to Pass the examination. Petitioner passed each section of the examination except for the hematology section. He attempted to retake the examination but was advised that the March 30, 1979, examination was the last test scheduled by HEW. That examination has been administered on five different occasions between the years 1975 and 1979. There is no information available as to whether the HEW examination will or will not ever be administered again. That examination is not the same as the licensure examination given by the Respondent but can act as a prerequisite, if satisfactorily completed, to the state licensure examination. An approved course of study is available to Petitioner at Miami-Dade Community College. Personnel at that school have advised him that he would receive thirty-two credits for his life's work and that he would be required to take six or seven examinations plus approximately a year's worth of courses. Petitioner does not desire to attend that college even on a part-time basis several times a week, since he is employed at two full-time jobs at this time.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: Richard N. Krinzian, Esquire 8585 Sunset Drive, Suite 190 Miami, Florida 33143 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Should Petitioner receive a passing grade for the technique portion for the November 1997 chiropractic licensure examination (the examination) administered by Respondent?
Findings Of Fact Petitioner practices chiropractic in Massachusetts. In November 1997, Petitioner took the Florida chiropractic licensure examination. To pass that examination it was necessary for Petitioner to score 75 points on the technique portion of the examination. Petitioner received a score of 70 points. Petitioner disputes the scores received on several questions, described as questions 1, 4, and 7. Each contested question is worth five points. As a candidate for licensure, Petitioner received an information booklet which contained a reading list informing the candidates of writings of experts in various subjects covered by the examination, upon whom the candidates should rely. This included a list of experts in the technique portion of the examination. Respondent intended to defer to the opinions of those experts in grading the candidates. Additionally, Petitioner and other candidates in the November 1997 examination, were provided written instructions concerning the technique portion of the examination. Those instructions stated: TECHNIQUE EXAMINATION FORM 1 Demonstrate the following chiropractic techniques on the patient. For each technique, indicate the patient and doctor position. location of the segment. patient and doctor contact point. line of drive. Do not actually perform the techniques, but set them up and indicate how you would perform them. If the technique is grossly inadequate and/or clinically inappropriate, no credit will be given for that technique. Technique 1: Bilateral Anterior-Superior Ilia Technique 2: Posterior Radial Head on Left Technique 3: Plantar Cuboid Technique 4: Posterior Superior Occiput on Right Technique 5: L-2, Left Posterior Spinous Yes or No for position, location, contact, and line of drive/correction CHIROPRACTIC PRACTICAL EXAMINATION 11/97 TECHNIQUE (EXAMINER) The expectation was that each candidate in the examination would set up and indicate the manner in which the candidate would perform the five techniques and the four specific positions, locations, contact points, and lines of drive related to the five techniques, without actually performing to conclusion. Petitioner and other candidates were graded by two examiners. The examiners, in scoring the candidates, used a grading sheet which described the activities by referring to the five techniques as cases. The various positions, locations, contact points, and lines of drive were numbered 1 through 20, with the first four numbers referring to case 1, numbers 5 through 8 referring to case 2, et cetera. Before performing as examiners in the November 1997 session, the examiners who graded Petitioner underwent training to ensure that they followed the same criteria for scoring the Petitioner. Petitioner contests the scores that he received in relation to technique 1 position a./case 1 position 1; technique 1 line of drive d./case 1 line of drive 4; and technique 2 patient and contact point c./case 2 contact point 7. Those items respectively correspond to questions 1, 4, and 7, referred to by the parties. After the two examiners entered the individual scores for the various items within a technique, the scores by the individual examiners were added to arrive at an aggregate score. The aggregate score was then divided by two to reach the final results on the technique portion of the examination. By that arrangement Petitioner received a score of 70 points, insufficient to pass the technique portion of the examination. Although examiner 07, in the score sheet reference case 1 position 1, marked "Y" to point out that the Petitioner had achieved compliance with the expectations of that technique, the examiner did not assign five points to the Petitioner indicating credit for that item. Instead the score sheet reflects zero points for the item. Examiner 15 in relation to that item, wrote "N" on the score sheet signifying non-compliance and provided zero points for non-compliance. In all other respects the scores of the two examiners in relation to the technique portion of the examination, to include the disputed items, were in accord. Notwithstanding the determination by the initial examiners that Petitioner had failed the technique portion, Respondent instituted a non-rule policy to have three additional examiners review Petitioner's performance on the technique portion, by resort to the audio-video tape that had been made during the pendency of the technique portion of the examination. Apparently, Respondent in view of the reference by examiner 07 to "Y," indicating compliance with case 1 position 1, treated the item in a manner which signified compliance. Thus Petitioner was entitled to 5 points on the score sheet of examiner 07. The activities of the discrepancy reviewers were designed to determine whether that view finding compliance should be upheld in a setting where examiner 15 had entered "N" for that item signifying non-compliance. The review was expected to break the impasse. The three reviewers determined that Petitioner had not complied with the requirements of case 1 position 1. As a result, the score of 70 points, the average arrived at by adding and then dividing the two 70-point scores assigned by the original examiners was upheld. When Petitioner was given notice of the examination results, the 70-point score for the technique portion was reflected in those results. By inference it is found that the original examiners and discrepancy reviewers practiced chiropractic in Florida. In reference to case 1 position 1, examiner 15 commented about "contact P.S.I.S. should be ischium." P.S.I.S. stands for Postier Superior Iliac Spine. Examiner 07 made no comment concerning that item. In reference to case 1 line of drive 4, both examiners felt that Petitioner had not complied with that requirement. Examiner 07, in commenting, stated "not on ischium." Examiner 15 commented "wrong line of drive." In reference to case 2 contact point 7, examiner 07 commented, "Not thumb-thenar." Examiner 15 commented, "No thumb contact." At the hearing to contest the preliminary determination finding Petitioner to have failed the technique portion of the examination, Petitioner offered his testimony as an expert in chiropractic concerning the several items at issue. To rebut that testimony, Respondent presented Dr. Darryl Thomas Mathis, an expert who practices chiropractic in Florida. Dr. Mathis also served as an examiner in the licensure examination, but did not test Petitioner. In his opinion Petitioner feels that he is entitled to additional points on each of the several questions at issue. In his opinion, Dr. Mathis disagrees. In explaining his performance related to case 1 position 1, Petitioner opined that his placement of the patient in the side posture position was correct. Petitioner also opined that his position for the case was correct. By contrast to the Petitioner's opinion concerning case 1 position 1, Dr. Mathis expressed the opinion that Petitioner's position in addressing the patient was incorrect. According to Dr. Mathis, Petitioner had his hand pointing upward parallel to the spine of the patient and not 90 degrees to the spine when contacting the ischium as required. In Dr. Mathis' opinion the table height for the examination area Petitioner was working in did not prohibit Petitioner from positioning himself appropriately to demonstrate his position reference to the patient. Dr. Mathis' opinion is accepted. Petitioner is not entitled to receive points for case 1 position 1. In reference to case 1 line of drive 4, Petitioner offered his explanation in the examination that he would use the opposite of the actual listing. He opined that given the way that the inter-joint subluxates, one would go in the opposite direction to get a more neutral setting. Therefore when dealing with anterior-superior, one would go postier and inferior to accomplish the opposite of the listing. In contrast, Dr. Mathis, in offering his opinion about this item, referred to the anterior-superior listing as one in which the pelvis, in the circumstance that is bilateral, makes it such that both hip bones, or the pelvis in its entirety, has tipped forward and up over the femur heads or leg bones. Noting that Petitioner stated in his examination that he would thrust in the opposite manner, postier to anterior, meaning back to front, and superior to inferior, from top to bottom, Dr. Mathis opined that Petitioner was partially correct. However, Dr. Mathis was persuaded that additional information was required as to the actual angle or direction of thrust determined by the shaft of the femur or leg bone, and this additional information was not addressed by Petitioner. Dr. Mathis criticizes Petitioner's explanation of the technique to be employed on this item by leaving out the shaft of the femur as constituting the determinate of the angle employed. Moreover, Dr. Mathis did not believe that Petitioner could, in the attempt to demonstrate the technique at issue, perform adequately. The Petitioner was on the upper portion of the pelvis or ilium as opposed to being on the ischium, or lower portion of the pelvis. Consequently, according to Dr. Mathis, if Petitioner was going to thrust in the direction that Petitioner stated he would, he could not get the correction that he was attempting to obtain because Petitioner was on the wrong segment or portion of the pelvis. As Dr. Mathis perceives it, Petitioner could not physically accomplish by demonstration, what he claimed he could do because Petitioner was in the wrong location to make that correction. Dr. Mathis' opinion about case 1 line of drive 4 is accepted. Petitioner is not entitled to receive points for this item. Case 2 contact point 7 is what Petitioner refers as to tennis elbow. Petitioner concedes that normally he would use the thumb as the contact point; however, he offers his opinion that during the time of his practice, he has learned other techniques. According to Petitioner, those other techniques are especially useful to address an acute patient with a lot of swelling, where a thumb contact can be painful. Therefore, Petitioner believes that the thenar, the soft part of the palm of the hand below the thumb, is appropriate as a contact point in an acute situation. Given this alternative, Petitioner did not believe that his use of the thenar in the examination was harmful. By contrast Dr. Mathis believes that the thumb is the only acceptable answer. Further, Dr. Mathis stated that the reference list provided to Petitioner and other candidates prior to the examination, in association with A.Z. States' description of the appropriate technique, upon which the Respondent relied in determining the appropriate answer for this item, concludes that the thumb is to be employed in this technique. Dr. Mathis' opinion is accepted. Petitioner is not entitled to receive points for case 2 contact point 7.
Recommendation It is, RECOMMENDED: That a Final Order be issued finding that Petitioner did not pass the technique portion of the 1997 chiropractic licensure examination. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: John Bisanti 150 Sumner Avenue Springfield, Massachusetts 01108 Ann Marie Frazee, Esquire Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0752
The Issue The issue in this case is whether Frank Giampietro (Petitioner) should be awarded additional credit for answers given on the chiropractic physical diagnosis practical licensure examination administered in November, 1989, and based thereon, whether he should be licensed to practice chiropractic in the State of Florida.
Findings Of Fact Petitioner has been licensed to practice chiropractic in the State of Rhode Island since March, 1986. He took the diagnosis portion of the chiropractic practical examination administered by the Respondent on November 9, 1989, for purposes of being licensed in the State of Florida. Petitioner received a grade of 68.7% on this portion of the exam. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam, and based thereon, whether he should have passed this examination. It was established that the physical diagnosis practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner disputed the score he received in the areas of neurology, orthopedics, and differential diagnosis. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 2 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physical diagnosis practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, one examiner gave Petitioner the grades of 2.5 in orthopedics and 3 in both neurology and differential diagnosis, while the other examiner gave him 2 in orthopedics, 2.5 in neurology and 3 in differential diagnosis. If Petitioner received two additional raw points on these three content areas which are under challenge, he would receive an overall passing score of 75%. Regarding the practical exam content area of orthopedics, the Petitioner improperly performed Apley's test, according to the expert testimony of Dr. Ordet, and incorrectly responded that the medial and lateral meniscus could not be differentiated using Apley's test. The Petitioner also improperly performed McMurray's test, as well as muscle testing of the hamstrings and quadriceps. The Petitioner's witness, Dr. Hoover, confirmed that he did not properly perform Apley's test, and did not make a determination as to the medial or lateral meniscus by rotating the patient's foot, as he could have. Regarding the neurology portion of the exam, Petitioner incorrectly identified the location of the upper motor neuron track, and according to Dr. Ordet, the Petitioner also incorrectly stated that pathologic reflexes which would actually be for a lower motor neuron lesion were the pathologic reflexes for an upper motor neuron lesion. This was a very significant error, according to Dr. Ordet, whose testimony is credited. Regarding the differential diagnosis portion of the exam, the Petitioner's response to the patient's bowel blockage was not precise or specific. Petitioner did not demonstrate that he had more than an adequate understanding of this subject area due to the nebulous answers he gave. Even the Petitioner's witness, Dr. Hoover, agreed with the grade of 3 which Petitioner received on this portion of the exam. Based on the evidence in the record, it is found that Petitioner was correctly graded on the orthopedics, neurology and differential diagnosis portions of the practical examination. It was not established that the grades given were contrary to fact or logic, and in fact, competent substantial evidence supports the grades which he received.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to his grades on the orthopedics, neurology and differential diagnosis portions of the November, 1989, chiropractic examination. DONE AND ENTERED this 18th day of October, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX (D0AH CASE NO. 90-3399) The Petitioner did not file specific proposed findings of fact, but did file a letter dated September 28, 1990, on October 1, 1990, addressed to the undersigned. This letter does not evidence that a copy was provided to counsel for the Respondent, and therefore, it has not been considered. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. 4. Adopted in Finding 2. 5-6. Adopted in Finding 7. 7-8. Adopted in Finding 8. 9-10. Adopted in Finding 9. COPIES FURNISHED: Frank Giampietro 1704 Adair Road Port St. Lucie, FL 34952 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792
