The Issue Whether Petitioner is entitled to a passing score on the pharmacology/ocular disease portion of the optometry licensing examination administered August 3, 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Optometry is created as a part of Respondent by Section 463.003(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Optometry, which will enter a Final Order. Section 463.006(1), Florida Statutes, provides that anyone seeking licensure as an optometrist must pass a licensure examination. Section 463.006(2), Florida Statutes, provides, in part, as follows: The examination shall consist of the appropriate subjects, including applicable state laws and rules and general and ocular pharmacology with emphasis on the topical application and side effects of ocular pharmaceutical agents. . . . The optometry licensing examination consists of four separate examinations, one of which is the pharmacology examination. A candidate cannot be licensed as an optometrist in Florida until he or she passes all four examinations. In 1999, Petitioner passed three of the four examinations, but he failed the pharmacology examination. Petitioner retook the pharmacology examination on August 3, 2000. Pursuant to Section 456.017(2), Florida Statutes, and Rule 64B13-4.002, Florida Administrative Code, Petitioner did not have to retake the three portions of the licensure examination he passed in 1999. A candidate who fails a licensure examination has the right to review the examination material to determine whether he or she wants to file a challenge to the grading of the examination. Pertinent to this proceeding, Section 456.017(2), Florida Statutes, requires the following of Respondent: . . . provide procedures for applicants who fail an examination to review their examination questions, answers, papers, grades, and grading key for the questions the candidate answered incorrectly or, if not feasible, the parts of the examination failed. . . . Respondent is required to maintain the examination material by Section 456.017(3), Florida Statutes, which provides as follows: (3) For each examination developed or administered by the department or a contracted vendor, an accurate record of each applicant's examination questions, answers, papers, grades, and grading key shall be kept for a period of not less than 2 years immediately following the examination, and such record shall thereafter be maintained or destroyed as provided in chapters 119 and 257. This subsection does not apply to national examinations approved and administered pursuant to this section. A candidate is not allowed to retain a copy of the examination material or to make any copy thereof. Rule 64B13- 4.003, Florida Administrative Code, provides as follows: (3) An applicant is entitled to review his examination questions, answers, papers, grades and grading key used in the state examination for licensure; however, no applicant may copy any materials provided for his review. . . . A candidate has the right to a second review of the examination material in order to prepare for an administrative hearing. The candidate's attorney can participate in this second review. Rule 64B-1.009(1), Florida Administrative Code, provides, in pertinent part, as follows: (1) After the candidate's petition, which is a written statement requesting a hearing pursuant to 120.57, Florida Statutes, and setting out the information required under rule 28-106.201 of the Florida Administrative Code, has been filed, the candidate, and/or the candidate's attorney shall be permitted to review the examination questions and answers at the department's headquarters for the purpose of preparing for the administrative hearing, as specified in board rule or by the department when there is no board. . . . The examination at issue in this proceeding was not a national examination. Respondent maintains its master examination item bank for the optometry examination by computer. 1/ Typically, an examination booklet for a particular examination is printed from that computer item bank only when the booklet is needed for a legitimate purpose, such as an examination, a review, or a hearing. Once the booklet has served its purpose, it is destroyed. A psychometrician and three consulting optometrists usually proofread the contents of a newly printed examination booklet before it is used for an examination. The pharmacology examination at issue in this proceeding consisted of different case histories, each of which described a patient’s presenting condition and pertinent medical history. Each case history was followed by five questions with multiple choice answers. Candidates were instructed to select the best answer to each question from the multiple choice answers provided in the examination booklet. Respondent printed Booklet D from its master examination item bank for use as an exhibit in this proceeding. Booklets A, B, and C were not available for use as exhibits. Following his review of the examination material on November 7, 2000, Petitioner filed the Petition that underpins this proceeding. Question 74 required a candidate to select the best treatment for a patient based on the patient's case history. The candidate had 7 possible answers, lettered A - G, from which to choose. Each of the choices was a prescription medicine. In discussing Question 74, the Petition alleged that according to the answer key, the best answer was a certain topical steroid, which was choice F on Booklet D. That assertion is wrong. Choice E, not choice F, was the choice identified by the answer key as being the best answer to Question 74. Petitioner's response to Question 74 on August 3, 2000, was choice B. In discussing Question 44, the Petition alleged that according to the case history, a particular diagnostic procedure had not been performed on the patient. The last sentence of the case history for this question in Booklet D reflected the results of the diagnostic procedure that Petitioner alleged was not performed. Petitioner reviewed the examination material, including Booklet C, to prepare for the final hearing in this proceeding on February 28, 2001. Petitioner testified at the final hearing that the medication identified by Respondent as being the best response (choice E in Booklets C and D) to Question 74 was not an available answer in Booklets A and B. Petitioner testified at the final hearing that the last sentence of the case history for Question 44 in Booklets C and D had been omitted from Booklets A and B. Petitioner continued to assert that his responses to Questions 44, 74, and 75 were the best responses as those questions were presented to him when he took the examination. Lee Skinner, a psychometrician employed by Respondent, supervised the administration of the pharmacology examination at issue in this proceeding. Mr. Skinner and three consulting optometrists proofread the examination booklets used for the August 3, 2000, pharmacology examination. Mr. Skinner testified that Booklet A was identical in all material respects to Booklet D and that the alleged omissions did not exist. Consistent with Respondent’s policies, the hard copy of Booklet A was destroyed following the administration of the examination. Petitioner's answer sheet and the notes he took during the examination were preserved and were admitted as exhibits. Consistent with Respondent's examination review policies, Petitioner was not permitted to retain a copy of or make notes as to Booklet A, B, or C. For reasons that cannot be attributed to him, Petitioner’s testimony as to the alleged omissions in Booklets A and B could not be corroborated because hard copies of the examination booklets at issue were not available. 2/ Because Petitioner could not have a copy of or make notes from the examination booklets, he had to rely on his memory when preparing the underlying Petition and in testifying. Mr. Skinner’s testimony that there were no material differences between Booklet A and Booklet D is credible and persuasive. Petitioner failed to prove the alleged discrepancies between Booklet A and Booklet D. A score of 70% is needed to pass the pharmacology examination. Petitioner's score on the pharmacology examination administered August 3, 2000, was a failing score of 68.5%. Each of the three questions at issue is worth 0.75%. Petitioner would have to receive credit for a correct answer to at least two of the three questions at issue in this proceeding to attain the additional 1.5% he needs to pass the examination. The case history for Question 44 contained all the information necessary for a candidate to select the correct answer. On August 3, 2000, Petitioner did not select the best answer to Question 44. Consequently, he is not entitled to additional credit for his answer to that question. The case history for Questions 74 and 75 contained all the information necessary for a candidate to select the correct answer. Petitioner received no credit for his answer to Question 74 because he did not select the best answer to that question. Question 75 required the candidate to select the correct dosage and manner of administration of the medicine that was the best answer to Question 74. Petitioner's incorrect answer to Question 74 caused him to miss Question 75. Petitioner received no credit for his answer to Question 75 because he did not select the correct answer to that question. In addition to proofreading an examination booklet, a psychometrician typically reviews all answers to a licensure examination to make sure that no question was invalid. A question is considered invalid if 30% or fewer candidates select the answer identified by Respondent as being the best answer. Mr. Skinner reviewed all answers to Questions 44, 74, and 75 to determine whether an abnormal number of candidates missed each question. Based on the number of candidates that correctly responded to the three questions at issue compared to the incorrect answers, Mr. Skinner opined that each of the three questions was a valid examination question. 3/ Petitioner failed to establish a basis to disqualify Questions 44, 74, or 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner's challenge to the grading of his responses to Questions 44, 74, and 75 of the pharmacology examination administered August 3, 2000. DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of June, 2001.
The Issue This order addresses three cases consolidated for hearing. The first case chronologically is DOAH Case No. 00- 1964, which arises from the pre-licensure inspection initiated as a result of Respondent's application for a certification to provide limited nursing services, and seeks to levy fines for repeated violations originally noted in the biennial inspection of September 10, 1999. The second case chronologically is DOAH Case No. 00-1963, which arises from the re-inspection of the pre-licensure inspection performed on February 21, 2000, and relates to fines for repeated violations of the rules. The third case chronologically is DOAH Case No. 00-1965, which is related to issuance of the Department’s denial of certification to provided limited nursing services; however, it is based upon the same factual predicate as Case No. 00-1963. The issues in each of the cases are as follows: Case No. 00-1964: Should fines be levied against the Respondent as the result of an inspection which (1) was conducted without notice contrary to the letter concerning the inspection from the Department, and (2) in the absence of specific proof that the specific violation was repeated. Case No. 00-1963: Should fines be levied against the Respondent for failure to correct violations identified in an inspection that was not noticed contrary to the information provided to the Respondent, and when the Respondent was not rendering any services to which the violation applied. Case No. 00-1965: Should Respondent be denied a certification to provide limited nursing services based upon the violations discovered in the inspections of January 18, 2000 and February 21, 2000.
Findings Of Fact General Facts The Department is the agency charged with the inspection, regulation, and licensure of adult living facilities. The Respondent is an adult living facility owned and operated by Christal L. Caso. On November 11, 1999, Mr. Robert Cunningham conducted a biennial inspection of Respondent’s adult living facility (ALF). He identified a number of deficiencies that were written up in a detailed inspection report. Mr. Cunningham identified copies of his report which were a part of the Petitioner's Bound Exhibits in Case Nos. 00-1964 and 00-1963. A re-inspection was conducted in December of 1999, and all of the deficiencies noted had been corrected. The Administrative Complaint in Case No. 00-1964 alleges that on January 18, 2000, certain deficiencies found during Mr. Cummingham’s inspection on November 11, 1999, were repeated. His inspection report and its findings will be referenced and discussed in conjunction with the consideration of the report for January 18, 2000; however, there are no issues involved directly with Mr. Cunningham’s inspection or his report in any of the three pending cases. The Respondent applied for an additional certification to provide limited nursing services (LNS) at its facility. This application was duly processed and the Respondent was notified by letter, dated January 13, 2000, from the Department’s Tallahassee office that the facility must notify the Department within 21 days that it was ready for an operational survey (inspection), and that an announced inspection would be scheduled within several weeks. On January 18, 2000, Ms. Eleanor McKinnon, an inspector with the Department, arrived unannounced at the facility to conduct the pre-licensure inspection. Ms. Caso was not present at the facility at the time Ms. McKinnon arrived. When Ms. Caso arrived at the ALF, she advised Ms. McKinnon that she was not prepared and her inspection was inconsistent with the information Caso had received. Ms. McKinnon continued the inspection citing a policy that their inspections were unannounced. The letter Ms. Caso received from the Department’s Tallahassee office was termed, at hearing, inconsistent with agency procedure by personnel attached to the local office. It was clear Ms. Caso received and relied upon the information contained in the letter, and she had no reason to believe that it was not an accurate statement of how inspections would proceed. Ms. McKinnon prepared a detailed inspection report that was identified as an exhibit in all of the bound volumes. She did not have a clear recollection of the specific findings at the time of the hearing. The inspection reports identify specific areas of operations by alphanumeric designators termed "Tags." These tags relate to a specific area of concern in an inspection such as storage of drugs, medical records, or safety. The tags are listed in a separate column on the inspection reports, and specific violations will be identified and discussed in this order by reference to specific tags as they were at hearing. Licensure Inspection, January 18, 2000 Findings of Fact Specific to Case No. 00-1964 Although the Department's letter of January 13, 2000, said that the Respondent should notify the Department when it was ready for inspection, the Department has the right to inspect at any time for compliance with the rules. Regarding Tag A401, the first violation alleged to have been repeated, the inspection report for November states that "Three of five residents did not have a Health Assessment on file." The January inspection report states, "Review of two resident records revealed that one of the two residents had no health assessment on their medical record." Ms. Caso testified regarding individual records. These records she kept at her office at her house off the ALF’s premises. She was willing to retrieve these records; however, the inspector maintained that they were required to be maintained on site. Regarding the second alleged repeated violation, the November inspection report states, "Medications for Resident No. 3 which were discontinued in August were still in the centrally stored medicine closet." The January inspection report stated at Tag A612, "Tour of the medication room on the day of the survey revealed that medications from residents who the administrator said had been gone for over two years were still in the medication closet." This is alleged in the Administrative Complaint to have violated Rule 58A- 5.0182(6)(d), Florida Administrative Code. The Petitioner included in its exhibit a copy of the cited rule. Regarding the third alleged repeated violation, the January report states that over-the-counter medication was maintained in the medicine storage area without the name of the individual for whom it was prescribed being on it. This was alleged to be a violation of Rule 58A-5.0182(6)(f), Florida Administrative Code. A review of the current rules indicates that Rule 58A-5.0182(6)(d) and (f) do not address the substance of the alleged violation, and that the last amendment to the rule occurred in October 17, 1999. This provision had been repealed before the first inspection. Conclusions of Law for Case No. 00-1964 The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this and the other consolidated cases. This case seeks to fine the Respondent for violations allegedly violated in the original inspection of November 11, 1999, and repeated on the inspection of January 18, 2000. The Department can conduct a compliance inspection at any time. However, to consider such an inspection a pre- licensing inspection is contrary to the letter regarding the inspection procedures sent to the Respondent by the Department’s Tallahassee office. I conclude that, although findings may be considered for general enforcement purposes and fines potentially levied for violations, they cannot be considered a pre-licensing inspection. The practical effect of this is that a general violation applicable to an ALF can be cited and considered; however, fines cannot be levied for those matters related to LNS because the Respondent was not licensed or engaged in rendering LNS. In addition, the Respondent is not subject for fines for violation of those portions of the rules applicable only to providing LNS because the Respondent was entitled to request an announced inspection pursuant to the Department’s letter. The Administrative Complaint of Case No. 00-1964 cites Rule 58A-5.0191(3)(a), Florida Administrative Code, as having been violated presumably a reference to Tag A401 relating to admission standards. Specifically, the cited fault related to health assessments. Rule 58A-5.0191(2)(a), Florida Administrative Code, provides as follows: (2) HEALTH ASSESSMENT. Within 60 days prior to the residents admission to a facility but no later than 30 days after admission, the individual shall be examined by a physician or advanced registered nurse practitioner who shall provide the administrator with a medical examination report, or a copy of the report, which addresses the following: The physical and mental status of the resident, including the identification of any health-related problems and functional limitations; An evaluation of whether the individual will require supervision or assistance with the activities of daily living; Any nursing or therapy services required by the individual; Any special diet required by the individual; A list of current medications prescribed, and whether the individual will require any assistance with the administration of medication; Whether the individual has signs or symptoms of a communicable disease which is likely to be transmitted to other residents or staff; A statement that in the opinion of the examining physician or ARNP, on the day the examination is conducted, the individual’s needs can be met in an assisted living facility; and The date of the examination, and the name, signature, address, phone number, and license number of the examining physician or ARNP. The medical examination may be conducted by a currently licensed physician or ARNP from another state. The Administrator testified that health assessments were maintained for the residents, but were maintained at her office in her home. The inspector took the position that these assessments had to be maintained on-site; however, there is nothing in the rule upon which to base that conclusion. The rule provides that the physician or advanced registered nurse practitioner will provide the administrator with a copy of the assessment. The inspector did not permit the administrator time to retrieve the assessment for her inspection. In the absence of an inspection of the records, it cannot be determined whether the 30 days' grace period was applicable. I conclude that a health assessment does not have to be kept on site pursuant to Rule 58A-5.0181(2)(b), Florida Administrative Code. The Inspector should have given the Respondent time to retrieve the records. Then a determination could have been made whether the appropriate information was contained in the records. There is no violation and no basis for levying a fine. The alleged violations of Rule 58-5.182(6)(d) and (f), Florida Administrative Code, cannot be a basis for fines or denial of the license because the rule was repealed before the biennial inspection, the pre-licensure inspection, or the re-inspection. Findings of Fact Case Nos. 00-1963 and 00-1965 Ms. McKinnon conducted a re-inspection of the ALF on February 21, 2000. This inspection was the basis for levying fines for alleged repeated violations, and for denying licensure. Therefore, these factual allegations will be discussed together. Ms. McKinnon’s report of inspection is contained in the bound volumes pertaining to Case Nos. 00-1963 and 00-1965. The first tag number is N201, and the Rule alleged to have been violated is Rule 58A-5.031(2)(d), Florida Administrative Code. In the inspection report of January 18, 2000, the inspector made the following observation: "Review of the facility records and interview with the administrator revealed that no log had been prepared for the admission residents to receive limited nursing services." At the time of the inspection, the facility was not licensed to provide limited nursing services. Such services were not being rendered. This log is nothing more than a piece of paper upon which a chronological record of services is kept. This record is not required to be kept until services are rendered under the provisions of the rule. The next tag number of the next violation is N205 on the inspection report of January 18, 2000. Tag N205 alleges violation of Rule 58A-5.0131(2)(ff), Florida administrative Code, because, "Review of the facility records and interview with the administrator revealed that there was no documented information on what services would be provided under limited nursing or who would provide the services." The next tag at issue is N302. It cites a violation of Rule 58A-5.031(2)(a), Florida Administrative Code, and states, Interview with the administrator and review of facility documentation revealed that no provision had been made to have currently licensed nurse in the facility to perform limited nursing services, nor was there a contract with a RN or MD to supervise the services provided. Again, the rule cited in the complaint is wrong. Rule 58A- 5.031(2)(d), provides that the facility must have a contract for nursing services. It was explained at hearing that there was no contract present for a nurse to supervise Ms. Caso, and no contract with Ms. Caso during the first inspection. Ms. Caso testified regarding this. She did not originally believe she was required to have a contract with herself, and, at the time of the second inspection, had a contract drawn with the nurse who was going to be the supervisor; however, the woman was seriously ill and had not been able to sign the contract. At the time of this inspection, the facility was not providing services and could not legally do so until licensed. Tag A401 of the February report cites a violation of Rule 58A-5.0181(3)(a)1, Florida Administrative Code, and states, "Resident No. 5 was admitted on January 31, 1999, and there was no dated health assessment on his record." Conclusions of Law for Case Numbers 00-1963 and 00-1965 Again, the Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the cases. The various tags will be discussed in reverse order. Regarding Tag A401 of the February report citing Respondent for failing to have a dated health assessment for a resident, the proper citation of the rule alleged to have been violated is 58A-5.0181(2), Florida Administrative Code. As stated above, subparagraph (a) of paragraph (2) provides that the physician or advanced registered nurse practitioner shall provide the administrator with a medical examination report no later than 30 days after admission. In this instance, the reports were on-site and were inspected. However, this is not a repeat violation because there is no rule that requires these reports to be maintained on-site (the previously cited violation), and the records were not inspected on the previous visit. Therefore, this was the first time this violation was discovered. Regarding the violation regarding the absence of a signed contract by the supervising nurse (Tag 302), the facility was not licensed to provide LNS, and there were no services being rendered at the time. Therefore, there is no basis for a fine. In so far as this violation relates to the denial of licensure, Rule 58A-5.031(2), Florida Administrative Code, provides: In accordance with rule 58A-5.019, the facility must employ sufficient and qualified staff to meet the needs of residents requiring limited nursing services based on the number of such residents and the type of nursing service to be provided. * * * Facilities licensed to provide limited nursing services must employ or contract with a nurse(s) who shall be available to provide such services as needed by residents. The facility shall maintain documentation of the qualifications of nurses providing limited nursing services in the facility’s personnel files. While the absence of the contract is a reason not to issue a license, under the circumstances in this case, it would have been more appropriate for the inspectors to note the discrepancy, and permit the Respondent to send them a copy of the contract when it was signed. It is not a basis for levying a fine. Regarding the alleged violation for failing to maintain a policy for how services will be rendered (Tag N205), first, there is no Rule 58A-5.0131(2)(ff), Florida Administrative Code, as cited by the Agency. Rule 58A-5.0131, Florida Administrative Code, contains various definitions, none of which relate to the alleged violation cited in the inspection report. A review of Rule 58A-5.031, Florida Administrative Code, which deals with the providing of limited nursing services, starts off by stating that a facility must be licensed before it can provide these services. From the description of the violation cited and the testimony of the witnesses, this apparently relates to the absence of a policy setting forth what services will be provided. There is no requirement in Rule 58A-5.031, Florida Administrative Code, for such a policy. The only provision of this rule remotely related to a requirement for some policy and procedure provides: The facility must ensure that nursing services are conducted and supervised in accordance with Chapter 464, F.S., and the prevailing standard of practice in the nursing community. The rule does not mandate how the facility will ensure this. In sum, there is no rule that requires such a policy be on site. Regarding the alleged violation of Rule 58A- 5.031(2)(d), Florida Administrative Code, by failing to maintain a log of nursing services rendered (Tag N201), there was no requirement to maintain the log in the absence of performing the services.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department dismiss the complaints in Case Nos. 00-1963 and 00-1964. That the Department not license the Respondent with regard to Case No. 00-1965, but permit the Respondent to re- file for the subject license without jeopardy due to any of the inspections which have been the subject of Case Nos. 00- 1963 and 00-1964. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN 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 9th day of February, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Christal L. Caso, Administrator Paradise Manor 2949 Carriage Drive Daytona Beach, Florida 32119 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue Whether the Petitioner should receive credit for her answers to certain specified questions on the Clinical Application of Medical Knowledge portion of the Florida Medical Licensure Examination administered November 19 and 20, 1999.
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 of Health 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 (1999); Rule 64B8-5.002, Florida Administrative Code. In order to be issued a restricted license to practice medicine in Florida, a foreign-licensed physician must pass the FMLE, an examination that is developed by the Department and that consists of two parts; Part I tests a candidate's knowledge of Basic Science and Disease Processes, and Part II tests a candidate's knowledge of Clinical Applications of Medical Knowledge. Ms. Jimenez was accepted as a candidate for the FMLE and sat for the examination on November 19 and 20, 1999. At the time of the hearing, Ms. Jimenez had attained a scaled score of 348 on the Clinical Application of Medical Knowledge portion of the FMLE; a scaled score of 350 is required to pass Part II of the examination. The questions that comprise the Clinical Application of Medical Knowledge portion of the FMLE are objective, multiple- choice questions drawn from a bank of questions written by physicians, field-tested, reviewed, and edited. A psychometrician employed by the Department oversees the development of the examination questions. The questions for the November 1999 FMLE were drawn from the bank of questions in accordance with a test blueprint developed by a committee of physicians, and the questions were compiled into an examination. A committee of physicians then reviewed the examination to determine whether it would adequately and reliably test the candidate's ability to practice medicine with reasonable care and safety. A psychometrician employed by the Department oversaw the process of compiling the examination. The Department sends each candidate registering to take the FMLE a Candidate Information Booklet which contains, among other things, information about the test, the material to be covered on the test, sample questions, and a list of reference books that the candidates should consult in preparing for the examination. Ms. Jimenez disputes the Department's determination that the answers she gave to questions 3, 11, 81, and 183 of Part IIA and to question 113 of Part IIB of the FMLE administered November 19 and 20, 1999, were incorrect. According to the Department, the correct answer to question 3 of Part IIA of the examination is "C"; Ms. Jimenez chose answer "D." Question 3 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is included in the list of reference books provided to candidates for the examination. In this treatise, medical therapy is identified as the preferred treatment for distal dissection, that is, for a Type B or descending aortic dissection. "C" is, therefore, the correct answer to question 3 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 11 of Part IIA of the examination is "A"; Ms. Jimenez chose answer "D." Question 11 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is included in the list of reference books provided to candidates for the examination. In this treatise, it is observed that significant changes in the QRS complexes are consistent with acute myocardial infarction; all other answer choices are consistent with a diagnosis of acute pericarditis. "A" is, therefore, the correct answer to question 11 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 81 of Part IIA of the examination is "B"; Ms. Jimenez chose answer "A." Question 81 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, which is considered an authoritative text by physicians and which is included in the list of reference books provided to candidates for the examination. In this treatise, it is observed that the prevalence of MS varies significantly among different ethnic groups. "B" is, therefore, the correct answer to question 81 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 183 of Part IIA of the examination is "A"; Ms. Jimenez chose answer "D." Question 183 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be found in the reference book entitled Novak's Gynecology, 12th Edition, 1998, which is considered an authoritative text by physicians and which is included in the list of reference books provided to candidates for the examination. The question elicits the answer identifying the treatment that is most appropriate for the described patient, and, in the treatise, it is observed that hormone replacement therapy is indicated for women who are menopausal and have no contraindications. "A" is, therefore, the correct answer to question 183 of Part IIA of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer. According to the Department, the correct answer to question 113 of Part IIB of the examination is "A"; Ms. Jimenez chose answer "D." Question 113 is clear and unambiguous, the question contains sufficient information to answer the question correctly, and the question has only one correct answer, which is included among the choices provided. The correct answer can be derived from information found in the reference books entitled Harrison's Principles of Internal Medicine, 14th Edition, 1998, and Robert B. Taylor's Family Medicine: Principles and Practice, 5th Edition, 1997, which are considered authoritative texts by physicians and which are included in the list of reference books provided to candidates for the examination. The question elicits the answer identifying the intervention that is most appropriate for the described patient. It can be determined from the information contained in the treatises that the patient described in the question should not be treated with drugs but, rather, should be treated with diet and exercise. "A" is, therefore, the correct answer to question 113 of Part IIB of the FMLE, and Ms. Jimenez should not receive credit for her answer because the answer she gave is not the correct answer.
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 Gloria Patricia Jimenez challenging questions 3, 11, 81, and 183 of Part IIA and question 113 of Part IIB of the Florida Medical Licensure Examination administered November 19 and 20, 1999.. DONE AND ENTERED this 18th day of October, 2000, 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 18th day of October, 2000. COPIES FURNISHED: Gloria Patricia Jimenez 7765 Southwest 86 Street Unit F2, Apartment 209 Miami, Florida 33143 William W. Large, General Counsel Department of Health Office of the General Counsel 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 M. Catherine Lannon, Esquire Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 Theodore Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue presented is whether Petitioner should be awarded credit for his response to question numbered 30 of Part III of the October, 1989, certified general contractor examination.
Findings Of Fact Petitioner sat for the certified general contractor examination which was administered on October 21, 1989. After taking that examination, Petitioner had achieved passing scores on two of three parts of the certified general contractor examination. Petitioner was awarded a score of 69 on Part III of the examination, which is one point short of a passing score. Petitioner timely and properly challenged one question, question numbered 30, from Part III of the examination. If awarded credit for his answer to question numbered 30, Petitioner would achieve a passing score and be granted a certificate of licensure. Question numbered 30 is an objective (multiple choice) question pertaining to accounting, which asks the examinee to identify indirect costs from among four possible choices. The examination questions, including question numbered 30 on Part III, were developed by ACSI/NAI, a private organization under contract with the Department of Professional Regulation to develop the examination. ACSI/NAI originally keyed the grading of question numbered 30 so that answer "A" was the only correct response. After the examination was administered, ACSI/NAI determined that two additional answers, "B" and "C," were also correct and advised Respondent to award credit to candidates who chose answers "A," "B," or "C." ACSI/NAI advised that no credit should be awarded for answer "D" as this answer was incorrect. While taking Part III, which is an open book examination, Petitioner realized that choices "A," "B," and "C" were correct answers pursuant to page 94 of the approved reference book. Petitioner believed that only one answer could be correct for each question. Since he knew that three of the four answers were correct as the question was written, Petitioner decided that the question was incorrectly written, mentally deleted the word "not" which appeared in the question thereby making answer "D" the only correct response, and marked answer "D" on his answer sheet. Petitioner was awarded no credit as answer "D" to question numbered 30 as written is not correct. No candidates were awarded credit for choosing answer "D" on question numbered 30. Question numbered 30 is not ambiguous. It is clear in the response it is seeking. Although questions are not drafted to have more than one correct response, question numbered 30 did. Therefore, all examinees choosing one of the correct answers was given credit. Question numbered 30 is adequate for testing a candidate's knowledge in the subject area being tested. Examinees are graded solely according to the answers given on their answer sheets. No partial credit is awarded, and no credit is awarded for examinees' comments written either on official comment forms or in the examinee's test booklet. The Directions on the examination booklet instructed the examinees to mark only one answer per question. The Directions further advised the examinees in boldfaced type: "You will be graded only on the answers recorded on the answer sheet."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's challenge to question numbered 30 on the October, 1989, certified general contractor examination. DONE and ENTERED this 25th day of July, 1990, 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 25th day of July, 1990 APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1214 Petitioner's proposed findings of fact numbered 1, 2, 4- 7, 9-11, 14-16, 29-31, 37, 40, 41, 44, 48, 51, 53, and 55 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3, 8, 17, 26, 27, 34, 35, 45, 46, and 54 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 12, 13, 18-25, 28, 32, 33, 36, 38, 39, 42, 43, 47, 49, 50, and 52 have been rejected as being unnecessary for determination herein. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. Respondent's proposed findings of fact numbered 3-14 have been adopted either verbatim or in substance in this Recommended Order. Copies furnished: Michael J. Kurzman, Esquire LEIBY AND ELDER Penthouse 2 290 Northwest 165 Street Miami, Florida 33169 Robert G. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether the Florida Commission on Human Relations (FCHR) has jurisdiction over Petitioner's claim that Respondent discriminated against him in violation of Section 760.10(1), Florida Statutes (2003).
Findings Of Fact Respondent has never employed 15 or more employees at any point in time. At the most, Petitioner has employed three employees, the owner and two other people including Petitioner. Lab One/Exam One may employ more than 15 people. However, Respondent's only relationship with Lab One/Exam One is as an independent contractor. At no time material to this case has Respondent or its owner acted as an agent, representative, or employee for Lab One/Exam One. In his Petition for Relief, Petitioner states that Respondent is an independent contractor that is affiliated with Exam One, a world-wide medical exam company. According to the petition, Respondent uses a computer program known as Exam Link to send bi-monthly bills to Exam One for services rendered. Petitioner also alleges that Lab One/Exam One uses e-mail or facsimile transmissions to request Respondent to perform medical exams. During the hearing, Petitioner testified that Lab One/Exam One had sufficient influence over Respondent to ensure that Petitioner received his final paycheck from Respondent. However, the witness Petitioner subpoenaed to provide testimony in support of this proposition did not make an appearance. Petitioner's attempt to show that Respondent's relationship with Lab One/Exam One was based on more than a contract was unsuccessful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 29th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy M. Lombardo 321 Stone House Road Tallahassee, Florida 32301-3355 Julius F. Parker, III, Esquire Butler Pappas Weihmuller Katz Craig LLP 3600 Maclay Boulevard, Suite 101 Tallahassee, Florida 32312 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 On April 27, 1987, Petitioner filed an application for licensure by endorsement with the Board of Chiropractic (the Board.) On September 13, 1988, an Order stating the Board's intention to deny Petitioner's application for licensure by endorsement was filed by the Board. Petitioner timely filed a request for formal proceedings resulting in the above-styled matter being placed before the Division of Administrative Hearings. As a result of attempts to negotiate a settlement between Petitioner and Respondent, Petitioner filed a second application for licensure on or about June 19, 1989. At the July 27, 1989, meeting of the Board, Petitioner's second application for licensure by endorsement was denied. At the time of the final hearing, an Order had not yet been filed, but was to be forthcoming. The grounds for the Board's denial of Petitioner's April, 1987, application were that: Pennsylvania did not require applicants for licensure to receive a score of at least 75% on each portion of the state licensure exam; Pennsylvania did not require completion of continuing education as required of licensees in Florida; and Pennsylvania permitted licenses to be inactive for five years before said licenses became null and void. The Board of Chiropractic determined that the requirements for licensure in Pennsylvania are not substantially similar to, equivalent to, or more stringent than the current requirements of Chapter 460, Florida Statutes. At the hearing, counsel for Respondent waived the grounds regarding inactive licenses and completion of continuing education. The grounds for the Board's denial of Petitioner's June, 1989, application for licensure by endorsement are that the Pennsylvania requirements for licensure are not substantially similar to, equivalent to, or more stringent than the current requirements of Chapter 460, Florida Statutes. Specifically, the licensure examination administered by the Pennsylvania State Board of Chiropractic does not cover physical diagnosis and x-ray interpretation of chiropractic and pathology films, both of which are covered in the practical examination given by the Florida Board of Chiropractic as a requirement for licensure. Petitioner has taken and successfully completed parts I and II of the National Beard written examination. Petitioner has not taken or passed the National Board Written Clinical Competency Examination (which has been administered only since September, 1987). Petitioner has taken and successfully completed the Pennsylvania state licensure examination in chiropractic. Petitioner has been licensed as a chiropractor in Pennsylvania for 6 years. The pertinent Pennsylvania law in effect at the time that the Board considered Petitioner's applications for licensure by endorsement is set out in the following portions of Section 625.501 and Section 625.502, 63 Pennsylvania Statutes: s. 625.501 Applications for license Requirement for licensure.-- An applicant for a license under this act shall submit satisfactory proof to the board that the applicant meets all of the following: (1) Is 21 years of age or older. Is of good moral character. Has a high school diploma or its equivalent. Has completed two years of college or 60 credit hours. Has graduated from an approved college of chiropractic, with successful completion of not less than the minimum number of hours of classroom and laboratory instruction required by regulation of the board, which minimum shall be at least 4,000 hours. Has passed the examination required under this act. Has not been convicted of a felonious act prohibited by the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or of an offense under the laws of another juris- diction which if committed in this Commonwealth would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act, unless the applicant satisfies all of the following criteria: At least ten years have elapsed from the date of conviction. Satisfactorily demonstrates to the board that he has made sig- nificant progress in personal rehabilitation since the conviction such that licensure of the appli- cant should not be expected to create a substantial risk of harm to the health and safety of his patients or the public or a substantial risk of further criminal violations. Satisfies the qualifica- tions contained in this act. An applicant's statement on the application declaring the absence of a conviction shall be deemed satisfactory evidence of the absence of a conviction, unless the board has some evidence to the contrary. As used in this section the term "convicted" shall include a judgment, an admission of guilt or a plea of nolo contendere. * * * s. 625.502. Examination * * * Nature and content of examination.-- The examination shall be oral, practical and written, upon the principles and technique of chiropractic and shall include the following subjects: anatomy, physiology, histology, chemistry, pathology, physics, bacteriology, diagnosis, hygiene and sanitation, symptomatology, chiropractic analysis, x-ray, chiropractic principles and a practical demonstration of chiropractic technique. * * * Testing organization.-- All written, oral and practical examinations required under this section shall be prepared and administered by a qualified and approved professional testing organization in accordance with section 812.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929, except that the oral and practical examinations shall not be subject to section 812.1 until such examinations are available from a testing organization. Score.-- A license shall be granted to an applicant who meets the requirements of this act and who achieves: An overall score of at least 75% on the entire examination; or An average score of at least 75% on the oral and practical examina- tion and a passing score on the written examination administered by the National Board of Chiro- practic Examiners as such passing score is determined by the national board. (Emphasis added.) The Pennsylvania Board of Chiropractic does not have any published rules regarding licensure of applicants in the State of Pennsylvania. The Petitioner did not prove that the Pennsylvania Board of Chiropractic examines applicants in the area of x-ray interpretation and physical diagnosis. The Petitioner did not prove that the Pennsylvania State Board of Chiropractic required applicants to re-take Pennsylvania's entire examination if any portion was failed. The Petitioner did not prove that the requirement of the Florida Board of Chiropractic that applicants for licensure be tested on ability to make physical diagnoses and to interpret chiropractic and pathology x-ray films is unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it creates or maintains an economic condition that unreasonably restricts competition. The Petitioner did not prove that the requirement of the Florida Board of Chiropractic that applicants for licensure must re-take the entire licensure examination if any portion of the examination is failed is unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it creates or maintains an economic condition that unreasonably restricts competition. The Petitioner did not prove either that it would be unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it would create or maintain an economic condition that unreasonably restricts competition for the Florida Board of Chiropractic to decide that "the requirements for licensure in Pennsylvania are [not] substantially similar to, equivalent to, or more stringent than the current requirements of this chapter [460, Florida Statutes.]" Cf. Section 460.4065, Florida Statutes (1987 and Supp. 1988).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Chiropractic enter a final order denying the applications of the Petitioner, Norman R. Wiedow, D. C., for licensure by endorsement. DONE and RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 11th day of October, 1989.
